People v. Anderson ( 2023 )

Filed 2/7/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B320627
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA073706)
v.
MARY SUSAN ANDERSON,
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of
Los Angeles County, Suzette Clover, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, and David A. Wildman, Deputy Attorney
General, for Plaintiff and Respondent.
_____________________________
Following Mary Susan Anderson’s 2009 guilty plea to
seven felony counts arising from the theft and use of credit cards
and other items, the trial court sentenced Anderson to an
aggregate indeterminate state prison term of 35 years to life
under the three strikes law (Pen. Code, §§ 667, subs. (b)-(i),
1170.12).1 We rejected Anderson’s challenges to her sentence on
appeal. (People v. Anderson (July 11, 2011, B225130) [nonpub.
opn.].)
After the Secretary of the California Department of
Corrections and Rehabilitation (Secretary) recommended
Anderson be resentenced, the trial court resentenced Anderson to
an aggregate determinate state prison term of 23 years
four months. On appeal Anderson contends the trial court erred
by failing to strike one of the two 5-year prior serious felony
enhancements (§ 667, subd. (a)(1)) and by imposing the upper
term of six years for first degree burglary. We affirm.
PROCEDURAL BACKGROUND
1. Anderson’s Original Sentence
In 2009 Anderson was charged in a second amended
information with one count of first degree burglary (count 3),
one count of second degree burglary (count 4), one count of
receiving stolen property (count 6), two counts of theft (counts 7
and 9), one count of identity theft (count 8) and one count of
possession of a forged driver’s license (count 10). It was specially
alleged as to all counts that Anderson had suffered two prior
convictions of a serious felony within the meaning of the
three strikes law and had served three separate prison terms for
1 Statutory references are to this code.
2
prior felony convictions within the meaning of section 667.5,
subdivision (b). As to count 3, it was alleged Anderson had
suffered two prior serious felony convictions within the meaning
of section 667, subdivision (a)(1). The burglary allegations arose
from Anderson gaining entrance to an assisted living facility
disguised as a medical professional and taking the wallet of a
resident.
After Anderson pleaded guilty to all seven counts, a jury
found true the allegations Anderson had suffered two prior
serious felony convictions and had served three prior prison
terms. In sentencing Anderson, the court dismissed the strike
allegations as to counts 6 to 10 under section 1385 and imposed a
term of 25 years to life on count 3 pursuant to the three strikes
law, plus two consecutive five-year terms for the prior serious
felony convictions.2 The court imposed a term of 25 years to life
on count 4 but stayed the term pursuant to section 654. The
court imposed the two-year middle term for count 6 (to run
concurrently) and selected the middle term of two years on
counts 7 to 10 but stayed those pursuant to section 654. The
result was an aggregate indeterminate term of 35 years to life,
which we affirmed on appeal.
2 The trial court cited eight aggravating factors in support of
its refusal to dismiss the prior strikes for counts 3 and 4 and for
the sentence imposed, including that the victims were
particularly vulnerable, Anderson had prior convictions for which
she received concurrent sentences, Anderson’s prior convictions
were numerous and increasing in seriousness and Anderson was
on active parole when the crimes were committed.
3
2. The Secretary’s Recommendation and Anderson’s Motion
for Resentencing
On November 30, 2020 the Secretary wrote to the superior
court “to provide the court with the authority to resentence”
Anderson pursuant to former section 1170, subdivision (d)(1).3
The Secretary recommended Anderson’s sentence be recalled and
she be resentenced “based upon her exceptional conduct while
incarcerated.”
On June 15, 2021 Anderson filed a motion for recall of
sentence citing as mitigating factors in support of resentencing
her exemplary performance while incarcerated, advanced age and
comprehensive reentry plan and attaching more than 20 letters
from correctional officers, prison staff, program providers, family
members and friends supporting Anderson’s motion for recall of
sentence. After hearing argument from counsel and taking the
matter under submission, the trial court granted the motion on
December 9, 2021 and set the matter for resentencing.4
3. The Resentencing Hearing
On January 4, 2022, prior to the resentencing hearing,
Anderson filed a supplemental brief requesting that the court
dismiss one of the prior strikes and sentence her as a second-
strike offender. She requested the court impose a term of
13 years four months, consisting of 12 years on count 3 (the upper
3 Effective January 1, 2022 the recall and resentencing
provisions of former section 1170, subdivision (d)(1), were moved
to new section 1170.03 (Stats. 2021, ch. 719, §§ 1-7), which was
then renumbered as section 1172.1 effective June 30, 2022
(Stats. 2022, ch. 58, § 9).
4 Anderson’s resentencing was handled by the same judge
who had initially sentenced her in 2009.
4
term of six years, doubled), plus 16 months on count 4 (one-third
the middle term, doubled). She further requested the court strike
the two five-year section 667, subdivision (a)(1), enhancements.
The sentencing hearing commenced on January 6, 2022.
Anderson’s counsel reiterated her request for an aggregate
sentence of 13 years four months. The trial court observed that
would essentially amount to a time-served sentence and asked
the parties if there were any “middle ground” sentence that could
be imposed. Anderson’s counsel suggested the court could still
impose the upper term of six years on count 3 and sentence
Anderson as a second-strike offender but retain one or both of the
five-year enhancements on count 3, resulting in a sentence of
either 18 years four months or 23 years four months (including
the one-third middle term sentence, doubled, on count 4). After
further discussion, the court continued the resentencing hearing
to allow further briefing from the parties regarding how, if at all,
recent amendments to the Penal Code affected the court’s
discretion to dismiss prior strikes.
Anderson filed a supplemental brief on January 25, 2022,
which contained the same suggested sentence as her prior brief:
13 years four months.
The resentencing hearing resumed on March 30, 2022.5
Without further argument, the court dismissed one prior strike,
sentencing Anderson as a second-strike offender. The court
imposed an aggregate determinate state prison sentence of
5 Anderson waived her right to be present at the March 30,
2022 resentencing hearing. (See People v. Cunningham (2015)
61 Cal.4th 609, 633 [“a defendant may validly waive his or her
right to be present during a critical stage of the trial, provided
the waiver is knowing, intelligent, and voluntary”].)
5
23 years four months, consisting of the upper term of six years,
doubled for count 3, plus five years each for the two section 667,
subdivision (a)(1), enhancements and a consecutive term of
16 months (one-third the middle term, doubled) for count 4. The
court dismissed counts 6 through 10.6
DISCUSSION
1. The Trial Court Did Not Err by Sentencing Anderson
Pursuant to Multiple Enhancements
Prior to January 1, 2022, section 1385 provided trial courts
with discretion to dismiss sentencing enhancements in the
interest of justice. The statute did not provide direction as to how
courts should exercise that discretion. In October 2021 the
Legislature passed and the Governor signed Senate Bill No. 81
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) (Senate Bill 81),
which, effective January 1, 2022, amended section 1385 to
provide guidance regarding the exercise of discretion in
dismissing sentencing enhancements.
Section 1385, subdivision (c), now provides in part,
“(1) Notwithstanding any other law, the court shall dismiss an
enhancement if it is in the furtherance of justice to do so, except
if dismissal of that enhancement is prohibited by any initiative
6 The trial court did not address the three one-year prior
prison term enhancements (§ 667.5, subd. (b)) found true by the
jury in 2009. However, effective January 1, 2020, section 667.5,
subdivision (b), was amended such that a one-year prior prison
term enhancement could be imposed only if the defendant had
previously served a prison term for certain sexually violent
offenses. (See People v. Petri (2020) 45 Cal.App.5th 82, 93-94.)
Accordingly, the section 667.5, subdivision (b), enhancements no
longer apply to Anderson.
6
statute. [¶] (2) In exercising its discretion under this
subdivision, the court shall consider and afford great weight to
evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are present.
Proof of the presence of one or more of these circumstances
weighs greatly in favor of dismissing the enhancement, unless
the court finds that dismissal of the enhancement would
endanger public safety.” The two mitigating circumstances
relevant here provide, “(B) Multiple enhancements are alleged in
a single case. In this instance, all enhancements beyond a single
enhancement shall be dismissed. [¶] (C) The application of an
enhancement could result in a sentence of over 20 years. In this
instance the enhancement shall be dismissed.” (§ 1385,
subd. (c)(2)(B) & (C).)
Anderson argues use of the word “shall” in section 1385,
subdivision (c)(2)(B) and (C), required the trial court to dismiss
all but one of the sentencing enhancements and/or any
enhancement that could result in a sentence of more than
20 years. Accordingly, Anderson argues the trial court erred as a
matter of law in imposing the sentence for both five-year prior
felony conviction enhancements.7
If we were to read section 1385, subdivision (c)(2)(B) and
(C), in isolation, then Anderson’s argument would appear
correct—use of the term “shall” in a statute is generally
7 Anderson did not make this argument in the trial court.
However, because her interpretation of section 1385, if correct,
would result in an unauthorized sentence (see People v. Scott
(1994) 9 Cal.4th 331, 354 [sentence violating mandatory
provisions is unauthorized]), the issue is not subject to forfeiture.
(People v. Cabrera (2018) 21 Cal.App.5th 470, 477.)
7
mandatory, not permissive. However, “we are not permitted to
pluck this phrase out of its placement in the statute and consider
it in isolation; instead, we are required to consider where it fits
into the ‘“context of the statute as a whole.”’” (People v. Walker
(2022) 86 Cal.App.5th 386, 396.) Here, the statement that a
court “shall” dismiss certain enhancements appears as a subpart
to the general provision that a “court shall dismiss an
enhancement if it is in the furtherance of justice to do so.”
(§ 1385, subd. (c)(1), italics added.) In other words, the dismissal
of the enhancement is conditioned on a court’s finding dismissal
is in the interest of justice. The nature of this condition is further
explained by the Legislature’s directive that the court, while
“exercising its discretion under this subdivision, . . . shall
consider and afford great weight” to evidence of certain factors,
and proof of one of the factors “weighs greatly” in favor of
dismissal “unless” the court finds dismissal would endanger
public safety. (Id., subd. (c)(2).) This language, taken together,
explicitly and unambiguously establishes: the trial court has
discretion to dismiss sentencing enhancements; certain
circumstances weigh greatly in favor of dismissal; and a finding
of danger to public safety can overcome the circumstances in
favor of dismissal.
It is within these boundaries that section 1385 states the
court “shall” dismiss all but one enhancement and/or
enhancements resulting in a sentence of more than 20 years. The
dismissal shall occur but only if, in exercising its discretion and
giving great weight to certain factors, the court finds dismissal is
in the interests of justice or would not endanger public safety. As
our colleagues in Division Two recently stated when reaching the
same conclusion, if we were to read subdivision (c)(2)(B) and (C)
8
as mandatory, then the existence of those factors “would not
‘weigh greatly’ in favor of dismissal—it would weigh
dispositively.” (People v. Walker, supra, 86 Cal.App.5th at
p. 397.) In addition, “[t]hat construction would also require us to
accept that our Legislature . . . opted to embed that mandate as
an addendum to one of nine mitigating factors to be given great
weight in the context of a trial court’s discretionary decision
whether to dismiss. In other words, if our Legislature was trying
to implement a rule of mandatory and automatic dismissal, it
picked a very circuitous way to do so.” (Id. at p. 398.)
The legislative history of Senate Bill 81 further supports
our interpretation that dismissal of the enhancements is not
mandatory. The initial drafts of the bill stated, “There shall be a
presumption that it is in the furtherance of justice to dismiss an
enhancement upon a finding that any of the circumstances in
subparagraphs (A) to (I), inclusive, are true. This presumption
shall only be overcome by a showing of clear and convincing
evidence that dismissal of the enhancement would endanger
public safety.” (Sen. Amend. to Sen. Bill No. 81 (2021-2022 Reg.
Sess.) Apr. 27, 2021.) However, the Assembly removed the
presumption requiring clear and convincing evidence to
overcome, replacing it with the more flexible discretionary
language that now appears in section 1385, subdivision (c)(2).
(See Assem. Amend. to Senate Bill No. 81 (2021-2022 Reg. Sess.)
August 30, 2021.) Shortly thereafter, in a letter to the Secretary
of the Senate that was placed by unanimous consent in the
Senate Journal, the author of Senate Bill 81 stated, “I
respectfully request the following letter be printed in the Senate
Daily Journal expressing our intent with respect to this measure:
[¶] . . . [¶] [A]mendments taken on Aug. 30, 2021 remove the
9
presumption that a judge must rule to dismiss a sentence
enhancement if certain circumstances are present, and instead
replace[] that presumption with a ‘great weight’ standard where
these circumstances are present. The retention of the word ‘shall’
in Penal Code § 1385(c)(3)(B) and (C)[8] should not be read as a
retention of the previous presumption language—the judge’s
discretion is preserved.” (Sen. Nancy Skinner, letter to Sect. of
the Sen. (Sept. 10, 2021) 121 Sen. J. (2021-2022 Reg. Sess.)
p. 2638.)
Thus, not only did the Legislature remove the presumption
in favor of dismissal, instead explicitly stating the court had
discretion to dismiss enhancements, but also the author of
Senate Bill 81 anticipated the precise argument Anderson
raises—that the word “shall” in section 1385, subsection (c)(2)(B)
and (C), could be misconstrued as a mandate to automatically
dismiss applicable enhancements. The author’s unambiguous
rejection of this interpretation, placed in the official record with
the unanimous consent of her colleagues, supports our conclusion
that a trial court is not required to dismiss all but
one enhancement or an enhancement that could result in a
sentence of more than 20 years, but rather that the trial court
has discretion in deciding whether to do so.9
8 The version of section 1385 effective January 1, 2022
included mitigating circumstances (A) through (I) within
subdivision (c)(3). (Stats. 2021, ch. 721, § 1.) Effective June 30,
2022 the mitigating circumstances are listed in subdivision (c)(2).
(Stats. 2022, ch. 58, § 15.)
9 We recognize that statements by individual legislators may
not be entitled to great weight in determining legislative intent.
(See People v. Ramos (1996) 50 Cal.App.4th 810, 821.) “A
legislator’s statement is entitled to consideration, however, when
10
2. Anderson Forfeited Her Claim the Upper Term Is
Improper
Prior to January 1, 2022, when a statute specified a triad of
permissible sentences, trial courts had discretion to impose the
lower, middle or upper term sentence. (See former § 1170,
subd. (b); Stats. 2007, ch. 3, § 2 [“[w]hen a judgment of
imprisonment is to be imposed and the statute specifies
three possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court”].) Effective January 1,
2022, section 1170, subdivision (b), provides the middle term of
imprisonment as the presumptive sentence and permits a trial
court to impose the upper term “only when there are
circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial.” (§ 1170, subd. (b)(2).) Nonetheless, the trial court may
consider a defendant’s prior convictions “based on a certified
record of conviction without submitting the prior convictions to a
jury.” (§ 1170, subd. (b)(3).) The statute further requires the
it is a reiteration of legislative discussion and events leading to
adoption of proposed amendments rather than merely an
expression of personal opinion. [Citations.] The statement of an
individual legislator has also been accepted when it gave some
indication of arguments made to the Legislature and was printed
upon motion of the Legislature as a ‘letter of legislative intent.’”
(California Teachers Assn. v. San Diego Community College Dist.
(1981) 28 Cal.3d 692, 700.)
11
court to set forth on the record the reasons for choosing the
sentence imposed. (§ 1170, subd. (b)(5).)
Anderson contends the trial court erred by imposing the
upper term sentence on count 3 because the court “did not cite
any factors in aggravation. Appellant did not stipulate to any
factors in aggravation and there was no jury finding regarding
any factors in aggravation.” Anderson’s opening brief contains no
additional discussion or authority supporting these statements.
As discussed, not only did Anderson fail to object to the
court’s imposition of the upper term, but also it was Anderson’s
counsel who repeatedly suggested the court sentence Anderson to
the upper term on count 3. Accordingly, Anderson has forfeited
the argument the trial court erred by failing to articulate the
reasons for imposing the upper term and by relying on improper
factors to do so. (See People v. Flowers (2022) 81 Cal.App.5th
680, 683, review granted Oct. 12, 2022, S276237 [defendant’s
argument trial court relied on improper factors in imposing upper
term sentence was forfeited where defendant did not object in
trial court]; People v. Velasquez (2007) 152 Cal.App.4th 1503,
1512 [“by failing to object, Velasquez has forfeited his claim the
upper terms are improper because the trial court did not state its
reasons for selecting those terms”]; see also People v. Scott (1994)
9 Cal.4th 331, 353 [“waiver doctrine should apply to claims
involving the trial court’s failure to properly make or articulate
its discretionary sentencing choices”].)10
10 Anderson’s argument the upper term was improper is
forfeited for the additional reason that her opening brief does not
contain argument or support for her position. (Cal. Rules of
Court, rules 8.204(a)(1)(B), 8.360(a); see Hernandez v. First
12
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
FEUER, J.
HOWARD, J.*
Student, Inc. (2019) 37 Cal.App.5th 270, 277; People v. Spector
(2011) 194 Cal.App.4th 1335, 1372, fn. 12.)
* Judge of the Marin County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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