People v. Strong CA1/1 ( 2022 )

Filed 12/29/22 P. v. Strong CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A157060
v.
DERRICK STRONG, (San Mateo County
Super. Ct. No. 18-SF-011200-A)
Defendant and Appellant.
Defendant Derrick Strong was convicted of first degree burglary
following a jury trial. Defendant now appeals the trial court’s denial of his
motion to strike his prior conviction during sentencing. He contends the
court abused its discretion by considering a more dangerous burglary than
actually occurred, and he asserts remand is required for resentencing under
Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). We agree
defendant is entitled to resentencing but otherwise affirm the judgment.
I.
BACKGROUND
The San Mateo County District Attorney charged defendant by
information with first degree burglary of an occupied dwelling (Pen. Code,1
§§ 460, subd. (a), 667.5, subd. (c); count 1). The information further alleged
1 All further statutory references are to the Penal Code.
defendant had a prior strike (§ 1170.12, subd. (c)(1)), three serious felony
priors (§ 667, subd. (a)(1)), and a prison prior (§ 667.5, subd. (a)).
At trial, defendant testified he found the homeowners’ keys in their
apartment door and went inside to investigate. He admitted entering the
apartment multiple times and taking several items. The homeowners woke
up to discover defendant in their apartment and called 911. Defendant told
the homeowners he found their cell phone and wallet downstairs, took them
out of his pocket, and returned them. Defendant then left the apartment at
the request of one of the homeowners. Police located defendant nearby and
recovered the homeowners’ keys from his pocket.
The jury found defendant guilty on count 1 and found the occupied
dwelling enhancement allegation true. The trial court subsequently found all
of the prior conviction allegations true.
Prior to sentencing, defendant filed a motion requesting the trial court
to exercise its discretion under section 1385, subdivision (a) and People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to dismiss his prior
strike conviction. Defendant primarily argued he was calm and nonviolent
during residential burglary, and he returned the property at the request of
the homeowners. He further noted he would participate in drug treatment
and had strong family support.
The court denied this request, noting defendant was “minimizing the
nature of this offense.” The trial court then sentenced defendant to a total of
13 years, calculated by the middle term of four years, doubled for the prior
strike, plus an additional five years for the serious felony prior. Defendant
timely appealed.
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II.
DISCUSSION
On appeal, defendant argues the trial court abused its discretion in
refusing to strike his prior strike and serious felony priors. He also asserts
the matter should be remanded for resentencing due to recent legislative
changes.
A. Romero Motion
“California’s ‘Three Strikes’ law applies to a criminal defendant who is
currently charged and convicted of a felony and who has previously been
convicted of one or more serious or violent felonies.” (In re Coley (2012)
55 Cal.4th 524, 528.) But this scheme does not eliminate a court’s discretion
to dismiss a defendant’s prior strike conviction. (Romero, supra, 13 Cal.4th
at pp. 529–530; People v. Clancey (2013) 56 Cal.4th 562, 582.) Either on the
court’s own motion or on application of the parties, the court may order a
prior strike conviction dismissed “in furtherance of justice.” (§ 1385,
subd. (a); People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).)
“A [sentencing] court’s discretion to strike prior felony conviction
allegations in furtherance of justice is limited.” (Romero, supra, 13 Cal.4th at
p. 530.) It “must consider whether, in light of the nature and circumstances
of his [or her] present felonies and prior serious and/or violent felony
convictions, and the particulars of his [or her] background, character, and
prospects, the defendant may be deemed outside the [Three Strikes law’s]
spirit, in whole or in part, and hence should be treated as though he [or she]
had not previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
Given the “strong presumption” that any sentence imposed in
conformity with the Three Strikes law is rational and proper, a trial court
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abuses its discretion in denying a Romero motion only in limited
circumstances—e.g., where the court was unaware of its discretion to dismiss
or considered impermissible factors, or where applying the Three Strikes law
to a set of facts would produce an arbitrary, capricious, or patently absurd
result. (Carmony, supra, 33 Cal.4th at p. 378.) In short, it is not enough to
show that reasonable minds might disagree; where the record is silent or
“ ‘[w]here the record demonstrates that the trial court balanced the relevant
facts and reached an impartial decision in conformity with the spirit of the
law, we shall affirm the trial court’s ruling, even if we might have ruled
differently in the first instance.’ ” (Ibid.)
Defendant first asserts the trial court abused its discretion in denying
his Romero motion because the trial court relied on the general danger of a
residential burglary rather than the experience of these particular victims.
He argues the court failed to consider the nature of the actual crime and
instead focused on speculative possible outcomes from a residential burglary.
We disagree with defendant’s argument that the court failed to consider the
actual crime. Here, the trial court focused specifically on the crime
committed—entering the victims’ home in the middle of the night and taking
property. These facts are undisputed. Defendant acknowledged entering the
apartment multiple times, taking property (albeit subsequently returning
much of it), and purposefully seeking a confrontation with the homeowners.
The court specifically noted defendant was “minimizing the nature of this
offense and not understanding how someone would feel if they were
victimized in the situation that we find ourselves in.” (Italics added.) While
the court noted the possibility of violence in such a situation—despite such
violence not occurring—defendant also acknowledged such a risk when he
stated to probation he was “ ‘glad no one was hurt.’ ”
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Next, defendant argues the trial court improperly concluded he lacked
remorse when, in fact, he expressed both regret and remorse at trial and in
his statements to probation. However, the record supports the court’s
statement. The probation report noted defendant “minimized the present
offense,” “took minimal responsibility for what occurred,” and described the
case as “ ‘minor.’ ” While defendant’s statement acknowledged entering the
apartment multiple times, “tweeking [sic] a bit” from drug use, and going
through the victims’ property, he failed to acknowledge the harm caused by
these actions. The majority of defendant’s statement focused on how he
“ ‘decided to do the right thing,’ ” did not use force, and felt he and the
homeowners “ ‘could help each other.’ ” Only one sentence stated defendant
apologized to the victims and was glad no one was injured and property could
be returned. The probation report thus concluded defendant was “not fully
remorseful for his actions” as he never acknowledged “that the victims’
personal space and boundaries were violated.” Likewise, defendant’s trial
testimony suggested he believed his conduct was beneficial by helping the
victims understand the danger of leaving keys in their door.2 None of these
statements reflect a meaningful expression of regret or remorse.
Finally, defendant contends he falls outside the spirit of the Three
Strikes law because his prior conviction was from 1999 and this burglary was
nonviolent. While true, we cannot conclude the court abused its discretion in
finding defendant within the spirit of the Three Strikes law. The record
indicates defendant committed the current crime very shortly after
completing parole and was using methamphetamines daily at the time while
2
Defendant also declined to make a statement at the beginning of the
sentencing hearing, instead referencing his written statement attached to the
Romero motion. That statement, however, merely recounted his past history
and childhood, and did not convey remorse for the current burglary.
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denying he had a substance abuse problem. The court agreed with the
prosecutor that defendant’s conduct indicated a complete disregard for the
seriousness and potential consequences of his actions.
Nothing in the record indicates the trial court was unaware of its
discretion or failed to consider the appropriate facts. (See Carmony, supra,33 Cal.4th at pp. 378–379 [trial court’s refusal to strike prior conviction not
an abuse of discretion because it was “based on factors allowed under the law
and fully supported by the record”].) Accordingly, the trial court did not
abuse its discretion in denying defendant’s Romero motion.
B. Senate Bill 136
Defendant contends his sentence must be vacated and his case
remanded for resentencing in light of Senate Bill 136.
“Prior to January 1, 2020, section 667.5, subdivision (b) required trial
courts to impose a one-year sentence enhancement for each true finding on an
allegation the defendant had served a separate prior prison term and had not
remained free of custody for at least five years. [Citation.] Courts
nevertheless had discretion to strike that enhancement pursuant to
section 1385, subdivision (a). [Citation.] Effective as of January 1, 2020,
Senate Bill No. 136 . . . amends section 667.5, subdivision (b) to limit its prior
prison term enhancement to only prior prison terms for sexually violent
offenses, as defined in Welfare and Institutions Code section 6600,
subdivision (b).” (People v. Jennings (2019) 42 Cal.App.5th 664, 681.)
Because Senate Bill 136 mitigates punishment, it applies retroactively under
In re Estrada (1965) 63 Cal.2d 740 to all cases not yet final as of the bill’s
effective date. (Jennings, at pp. 681–682.) Accordingly, defendant is entitled
to have his sentence enhancement struck under Senate Bill 136 because he
did not commit a sexually violent offense.
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Defendant asserts remand is appropriate for the trial court to
reconsider the entire sentence. We agree. Generally, “when part of a
sentence is stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances.’ ” (People v.
Buycks (2018) 5 Cal.5th 857, 893.) This rule does not apply when “the trial
court has already imposed the maximum possible sentence, [making] a
remand for resentencing . . . unnecessary.” (People v. Gastelum (2020)
45 Cal.App.5th 757, 772–773.) But here, the trial court exercised its
discretion to impose the midterm. Accordingly, remand for resentencing is
appropriate. (See People v. Choi (2021) 59 Cal.App.5th 753, 770.) We express
no opinion as to how the trial court should exercise its discretion on remand.
III.
DISPOSITION
This matter is remanded for resentencing under Senate Bill 136. In all
other respects the judgment is affirmed.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
DEVINE, J.
A157060
People v. Strong

Judge of the Contra Costa County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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