People v. Fullbright CA2/5 ( 2021 )

Filed 9/24/21 P. v. Fullbright CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301215
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA028554)
v.
DEREK T. FULLBRIGHT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
William G. Holzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Nicholas J. Webster, Deputy Attorney
General, for Plaintiff and Respondent.
A trial jury found defendant Derek Fullbright1 (defendant)
guilty of several offenses, and the trial court sentenced him to
Three Strikes law terms of 25 years to life in prison. Years later,
when defendant successfully petitioned to have his sentence on
one of the offenses recalled and reduced under the Three Strikes
Reform Act of 2012 (Proposition 36), he asked the trial court to
reconsider the entire sentence and strike or dismiss one of his
prior convictions responsible for triggering the indeterminate
Three Strikes law sentence that remained for another offense of
conviction. The trial court refused, and we consider whether this
was an abuse of discretion.
I. BACKGROUND
In 1997, defendant struck the manager of a 7-Eleven store
with a bicycle, told him not to call the police, and threatened to
kill him. (People v. Fullbright (Apr. 27, 1999, B120171) [nonpub.
opn.].) The police were called, however, and when an officer
attempted to place defendant in handcuffs, defendant attempted
to punch the officer and the two wrestled on the ground for
several minutes. The officer suffered injuries to his hands, knees,
and elbow.
A jury convicted defendant of dissuading a witness (Pen.
Code,2 § 136.1, subd. (c)(1)), criminal threats (§ 422), and battery
on a peace officer (§ 243, subd. (c)). The jury further found
1
Defendant’s last name is spelled “Fulbright” in parts of the
record, including the notice of appeal. We amend the caption to
reflect the correct spelling.
2
Undesignated statutory references that follow are to the
Penal Code.
2
defendant sustained two prior felony convictions within the
meaning of the Three Strikes law. (§§ 667, subds. (b)-(i),
1170.12.) The trial court sentenced defendant to a total of 50
years to life in prison: consecutive terms of 25 years to life for the
dissuading a witness and battery crimes plus 25 years to life on
the criminal threats offense, albeit stayed pursuant to section
654.
In 2014, defendant petitioned pursuant to section 1170.126
(a statute enacted as part of Proposition 36) to recall the Three
Strikes sentence he received on the battery conviction.3 The trial
court initially ruled defendant was ineligible for relief, but this
court reversed on appeal with directions to determine whether
defendant posed an unreasonable risk of danger to public safety
under section 1170.126, subdivision (f) and, if not, to resentence
defendant on the battery conviction. (People v. Fullbright (Oct. 2,
2015, B260389) [nonpub. opn.].)
On remand, defendant submitted a sentencing
memorandum in which he asked the trial court to reconsider the
entire sentence and exercise its discretion to strike or dismiss one
of his prior strike convictions. (§ 1385; People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero).) Among other things,
defendant emphasized he had been imprisoned for more than two
3
Proposition 36 “amended the Three Strikes law with
respect to defendants whose current conviction is for a felony that
is neither serious nor violent. In that circumstance, unless an
exception applies, the defendant is to receive a second strike
sentence of twice the term otherwise provided for the current
felony, pursuant to the provisions that apply when a defendant
has one prior conviction for a serious or violent felony.
[Citations.]” (People v. Johnson (2015) 61 Cal.4th 674, 681.)
3
decades, during which time he earned an associate’s degree,
completed several reentry and career training programs,
renounced his association with prison security threat groups, and
obtained transitional housing.
The prosecution opposed defendant’s Romero motion and
emphasized his lengthy criminal history (including more than
two dozen prior convictions, including strike convictions for first
degree burglary and attempted first degree burglary) and his
disciplinary record in prison.4 Regarding the latter consideration,
the prosecution explained defendant violated prison rules 10
times between 1999 and 2012, including three instances that
involved violence and one that involved possession of a weapon.
The trial court granted defendant’s petition to recall and
reduce his sentence on the battery offense. The court imposed a
new sentence of six years for that conviction, to run concurrently.
The trial court, however, declined to “change the [overall]
sentencing structure” for the other convictions because it believed
4
As summarized in the probation officer’s report,
defendant’s adult criminal record includes the following
convictions (listed by year): first degree burglary (1981);
misdemeanor battery (1983); being under the influence of a
controlled substance (1985); driving under the influence (1987);
selling marijuana (1988); trespassing, disturbing the peace, and
several instances of obstructing/resisting a public officer (1990);
trespassing, possession of a hypodermic needle, and being under
the influence of a controlled substance (1991); first degree
burglary, attempted first degree burglary, and possession of a
hypodermic needle (1992); trespassing, being under the influence
of a controlled substance, and two instances of possession of a
hypodermic needle (1996); and being under the influence of a
controlled substance (1997).
4
defendant “clearly would be within the spirit of the Three Strikes
law” in light of his “very long criminal record.” The trial court
explained that although “it is true that [the voters] have changed
the Three Strikes law, . . . what they have not changed is
that . . . . making criminal threats and intimidating witnesses
still exposes you to a 25-to-life sentence. There is no reason [the
court] should depart from that.” The court remarked that
counsel’s arguments regarding defendant’s rehabilitative efforts
“may be excellent arguments to make to the parole board . . . in a
few years,” but concluded they “[did not] persuade [the trial
court] that [defendant] should be released—[that the court]
should undo the entire thought-out sentencing scheme when it
was originally pronounced.” Thus, “to the extent there[ was] a
motion under [People v.] Hubbard [(2018) 27 Cal.App.5th 9(Hubbard)] or Romero,”5 the court denied both.
II. DISCUSSION
The trial court did not abuse its discretion in denying
defendant’s Romero motion. Contrary to defendant’s view of the
proceedings below, we do not construe the trial court’s remark
that defendant’s rehabilitative efforts would make for an
excellent argument at a future parole hearing to indicate the trial
court understood them to be an irrelevant consideration in the
context of his Romero motion. Rather, the court considered
argument concerning defendant’s rehabilitative efforts, weighed
this against his lengthy criminal record and history of prison rule
5
As we explain momentarily, Hubbard holds a trial court is
entitled to reconsider the overall aggregate sentence when
resentencing pursuant to Proposition 36. (Hubbard, supra, 27
Cal.App.5th at 13.)
5
violations, and found defendant remained within the spirit of the
Three Strikes law. That determination is not an abuse of
discretion.
A. Legal Framework
When a defendant’s Three Strikes sentence is recalled
under Proposition 36, “‘“the trial court is entitled to consider the
entire sentencing scheme”’” at resentencing. (Hubbard, supra, 27
Cal.App.5th at 13.) “‘“Not limited to merely striking illegal
portions, the trial court may reconsider all sentencing choices.
[Citations.] This rule is justified because an aggregate prison
term is not a series of separate independent terms, but one term
made up of interdependent components. The invalidity of one
component infects the entire scheme.”’ [Citations.]” (Ibid.; accord
People v. Garner (2016) 244 Cal.App.4th 1113, 1118.)
“Under section 1385, subdivision (a), a ‘judge . . . may,
either of his or her own motion or upon the application of the
prosecuting attorney, and in furtherance of justice, order an
action to be dismissed.’ ‘In Romero, [our Supreme Court] held
that a trial court may strike or vacate an allegation or finding
under the Three Strikes law that a defendant has previously
been convicted of a serious and/or violent felony, on its own
motion, “in furtherance of justice” pursuant to . . . section
1385(a).’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367,
373 (Carmony).)
When deciding whether to strike or dismiss a prior
conviction under section 1385, a trial court must decide whether
the defendant falls outside the “spirit” of the Three Strikes
sentencing scheme by looking to the nature and circumstances of
the present offense of conviction; the nature and circumstances of
6
prior serious or violent felony convictions; and the particulars of
the defendant’s background, characteristics, and prospects.
(People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) Our
review of the trial court’s determination is for abuse of discretion.
(Carmony, supra, 33 Cal.4th at 374.)
B. Analysis
Defendant’s contention that the trial court did not
appreciate that his rehabilitative efforts are relevant to his
“background, characteristics, and prospects” is unpersuasive.6
The court heard argument from both defense counsel and the
prosecution regarding defendant’s asserted rehabilitation, and
the fact that the trial court highlighted only defendant’s criminal
history in ruling on the motion does not mean it did not also
consider his rehabilitative efforts. (See People v. Myers (1999) 69
Cal.App.4th 305, 310 [“The court is presumed to have considered
all of the relevant factors in the absence of an affirmative record
to the contrary. [Citation.] Thus, the fact that the court focused
its explanatory comments on [one factor] does not mean that it
considered only that factor”].)
Defendant, though, seizes on the court’s remark that he
could make “excellent arguments” at a future parole hearing in
an attempt to argue there is an affirmative record that indicates
the trial court believed defendant’s post-judgment conduct was
irrelevant to his Romero motion. That is not how we read the
6
Insofar as defendant also argues the trial court was not
aware of its discretion to reconsider all sentencing choices in
resentencing defendant for the battery conviction, the record,
including the trial court’s citation to Hubbard, belies the
contention.
7
record. Having already emphasized defendant’s lengthy record
as an important factor in its denial of defendant’s Romero motion,
the court’s remark is best understood as incorporating the
conclusion the court by then had already drawn (reconsideration
of the entire sentencing scheme was not warranted), not as a
vaguely expressed limitation on the evidence or argument the
court was applying in reaching that conclusion. Indeed, the trial
court’s statement that it was not “persuade[d]” by defendant’s
showing suggests the court might have been persuaded by a
stronger showing—which would not be true if the court believed
such evidence was irrelevant altogether (see, e.g., People v.
Yanaga (2020) 58 Cal.App.5th 619, 624 [reversing where the
resentencing court stated it was “‘putting [it]self back in the
situation of [the original sentencing judge] at the time of
sentencing’”].)
Coming more broadly to the question of the propriety of the
trial court’s fact-based ruling, the trial court did not abuse its
discretion in declining to revisit the other components of
defendant’s sentence—including the Three Strikes law sentence
for dissuading a witness, which remains a serious felony that is
not directly amenable to Proposition 36 relief. (§§ 1192.7, subd.
(c)(37), 1170.126, subds. (b) & (e)(1); see also Carmony, supra, 33
Cal.4th at 378.) Defendant’s prior strike offenses (burglarizing a
victim’s home and attempting to burglarize the home again days
later but fleeing because the victim was present) and the offenses
for which he is now in prison are not outliers and do not suggest
“a single period of aberrant behavior.”7 (People v. Garcia (1999)
7
Nothing in the record indicates defendant’s burglary
offenses involved actual violence, but “‘“[b]urglary laws are based
primarily upon a recognition of the dangers to personal safety
8
20 Cal.4th 490, 503.) Furthermore, defendant committed the
offenses for which he is now in prison just one week after being
paroled for an earlier offense and defendant’s record of prison
rule violations begins where his criminal record ends. Several of
defendant’s 10 serious prison rule violations involve violence:
mutual combat in 1999 and 2003, battering another inmate in
2010, and possessing a weapon in 2012. Thus, while it is true
that remote in time strike convictions may “‘wash[ ] out’”
following “a crime-free cleansing period of rehabilitation after a
defendant has had the opportunity to reflect upon the error of his
or her ways[,]” “[w]here, as here, the defendant has led a
continuous life of crime after the prior, there has been no
‘washing out’ . . . .”8 (People v. Humphrey (1997) 58 Cal.App.4th
809, 813.)
created by the usual burglary situation—the danger that the
intruder will harm the occupants in attempting to perpetrate the
intended crime or to escape and the danger that the occupants
will in anger or panic react violently to the invasion, thereby
inviting more violence.”’” (Magness v. Superior Court (2012) 54
Cal.4th 270, 275.)
8
Richard Subia, a former California Department of
Corrections and Rehabilitation official retained to opine on
whether defendant posed an unreasonable risk to public safety,
submitted a report indicating defendant’s request for placement
in a special needs unit in 2012 allowed him to “get away from
prison politics” and remain discipline-free. Even treating
defendant’s progress in this placement between 2012 and 2019 as
a point in his favor, the trial court’s continued skepticism of the
significance of such progress was reasonable in light of the failure
of prior rehabilitative efforts: some of the evidence defendant
highlights to demonstrate his rehabilitation, for instance, his
9
Although we will accordingly affirm the trial court’s order
on defendant’s 1170.126 petition, the parties agree we should also
order the abstract of judgment corrected to state defendant’s
sentence on the battery charge was imposed to run concurrently
with the prison term for dissuading a witness. We will do so.
DISPOSITION
The clerk of the superior court is directed to prepare an
amended abstract of judgment that reflects defendant’s sentence
on count three is to run concurrent with his sentence on count
one. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
completion of a degree in 2006, predates serious prison rule
violations.
10