People v. Leon CA2/8 ( 2020 )

Filed 11/19/20 P. v. Leon CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B301688
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA470409)
v.
RONALD LEON,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County. Kathleen Kennedy, Judge. Affirmed.
William L. Heyman, 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 Deputy Attorney General, Scott A. Taryle and
Chung L. Mar, Deputy Attorneys General, for Plaintiff and
Respondent.
**********
Defendant and appellant Ronald Leon, also known as
Ronald Lee Feise, was convicted of second degree burglary and
assault with a deadly weapon. The court imposed a second strike
sentence of 15 years in prison. Defendant contends the trial
court abused its discretion in refusing to strike the five-year prior
serious felony enhancement pursuant to Penal Code section 667,
subdivision (a)(1). Alternatively, defendant argues his trial
counsel was ineffective in failing to formally move to strike the
five-year enhancement.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with second degree burglary (Pen.
Code, § 211; count 1) and assault with a deadly weapon (§ 245,
subd. (a)(1); count 2). As to count 1, it was alleged the victim was
over the age of 65 (§ 667.9, subd. (a)). Two prior convictions, one
from 1984 and one from 1997, were alleged as prior serious
felonies and also as strike priors. (§ 667, subd. (a)(1) & (b)-(j),
§ 1170.12.) It was further alleged defendant had suffered
six prior convictions within the meaning of section 667.5,
subdivision (b).
The charges arose from an incident that occurred on
August 9, 2018. David Edmondson, who was over the age of 65
and used a cane, was looking for recyclable materials in the
neighborhood near his home. He went to a parking lot where he
knew some dumpsters were located. Defendant was sleeping on
some steps that bordered the lot. Defendant’s two pit bulls
charged at Mr. Edmondson and bit him several times on his legs.
Mr. Edmondson yelled for defendant to control his dogs.
Defendant woke up and called the dogs back to him.
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Defendant approached Mr. Edmundson and started yelling
at him, calling him derogatory names. They argued for a bit and
then Mr. Edmundson climbed into a dumpster for protection
because the dogs started getting aggressive again. Eventually,
defendant grabbed Mr. Edmondson’s cane and hit him on the
head several times, and then fled with Mr. Edmondson’s bicycle.
A witness called 911, and defendant was apprehended a short
time later after a brief pursuit.
The case was tried to a jury over several days in May and
June 2019. The jury found defendant guilty as charged. In a
bifurcated proceeding, the jury found true the prior conviction
allegations.
In July 2019, the parties appeared for sentencing and
defendant made an oral motion to strike his prior convictions.
The court stated it was inclined to strike all six prison priors but
not inclined to strike the 1984 conviction for burglary because of
defendant’s record. The court then continued the sentencing
hearing to allow the parties to submit briefs on the issue of
whether the 1997 vehicular manslaughter conviction qualified as
a strike prior and a serious felony. The parties filed written
papers.
The continued sentencing hearing was held on October 7,
2019. After entertaining argument, the court granted
defendant’s motion and struck the 1997 conviction, finding it did
not qualify as a strike under the “Three Strikes” law or as a
serious felony for purposes of Penal Code section 667,
subdivision (a)(1). Defense counsel asked the court to reconsider
striking the 1984 conviction for burglary. The court declined to
do so. The court struck the elderly victim enhancement,
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explaining it intended to impose an upper term on count 1 to
account for the vulnerability of the victim.
The court allowed defendant to make a lengthy statement
requesting mental health diversion or placement in a substance
abuse program. The court denied the requests.
The court sentenced defendant to prison for 15 years
calculated as follows: a five-year upper term on count 1, doubled
due to the prior strike, plus a consecutive five-year term for the
1984 prior serious felony enhancement (the same conviction that
qualified as a strike). The court imposed and stayed, pursuant to
Penal Code section 654, a three-year midterm on count 2. The
court awarded defendant 490 days of presentence custody credits
and imposed statutory fines and fees.
This appeal followed.
DISCUSSION
The sole issue presented is whether the trial court abused
its discretion in declining to strike the five-year enhancement for
defendant’s 1984 burglary conviction. We review this contention
under the deferential abuse of discretion standard. (People v.
Carmony (2004) 33 Cal.4th 367, 376 (Carmony); accord, People v.
Taylor (2020) 43 Cal.App.5th 1102, 1113.) We find no abuse of
discretion.
As the Supreme Court explained, “[i]n reviewing for abuse
of discretion, we are guided by two fundamental precepts. First,
‘ “[t]he burden is on the party attacking the sentence to clearly
show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ [Citation.]
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Second, a ‘ “decision will not be reversed merely because
reasonable people might disagree.” ’ ” (Carmony, supra,
33 Cal.4th at pp. 376-377.)
Defendant acknowledges the same prior conviction may
qualify as both a strike for purposes of the three strikes law and
as a prior serious felony for purposes of the five-year
enhancement. The court thoroughly explained its sentencing
choices, discussing in some detail the sentencing factors it found
determinative, including defendant’s lengthy record which
showed he was “engaging in illegal conduct on a regular basis,”
the vulnerability of the victim, the seriousness of defendant’s
conduct toward the victim, and defendant’s lack of success under
prior periods of probation and parole supervision to address his
substance abuse problems. The court explained that defendant
admitted during his testimony that he “regularly violates the
law,” and defendant’s efforts to minimize his conduct were not
credible.
These factors were relevant to both the court’s decision to
deny striking the 1984 burglary conviction as a prior strike as
well as its decision to deny striking it as a prior serious felony
enhancement.
In exercising its discretion to strike the one-year elderly
victim enhancement pursuant to Penal Code section 667.9,
subdivision (a), the court reiterated that it found a 15-year
sentence was appropriate and warranted.
Defendant nevertheless argues the equities favored
striking the five-year enhancement as the court had already used
the 1984 conviction to double the upper term on count 1 to
10 years. He points out he was 53 at the time of trial and he was
not likely to reoffend at the age of 63, his crimes were largely a
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manifestation of his substance abuse problems, and his conduct
toward defendant was not particularly egregious. This is merely
a contrary view of the evidence, one that is at odds with the trial
court’s reasonable assessment that defendant’s conduct toward
the elderly victim was in fact serious, and that even at age 53, he
was still regularly committing crimes. Defendant has not
demonstrated the trial court’s decision was irrational.
Defendant briefly argues in the alternative that if we
conclude his trial counsel failed to preserve the issue for appeal,
then we should find his counsel provided ineffective assistance.
In his reply brief, defendant argues that counsel failed to provide
any reasonable supporting argument. We disagree. The court
and counsel discussed the issues in some detail. Defendant has
not and, on this record, he cannot show “both that trial counsel
failed to act in a manner to be expected of reasonably competent
attorneys acting as diligent advocates, and that it is reasonably
probable a more favorable determination would have resulted in
the absence of counsel’s failings.” (People v. Cudjo (1993)
6 Cal.4th 585, 623, citing Strickland v. Washington (1984)
466 U.S. 668, 687-696.)
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J. STRATTON, J.
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