People v. Collier CA1/2 ( 2024 )

Filed 1/3/24 P. v. Collier CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A165532
v.
TORIANO COLLIER, (Napa County Super. Ct.
Nos. 21CR000304, 21CR000340,
Defendant and Appellant.
21CR000382, 21CR000832,
21CR000871)
In this appeal, Toriano Collier asks us to interpret newly enacted Penal
Code section 1385, subdivision (c) (section 1385(c)),1 which directs trial courts
to dismiss sentencing enhancements in the interests of justice in cases
involving mitigating circumstances, as also applicable to prior strikes under
California’s “Three Strikes” law. Collier pleaded no contest to four counts of
identity theft, alcohol-related reckless driving, and conspiracy to commit
identity theft, and admitted a prior strike conviction. At sentencing, Collier
moved to dismiss the prior strike conviction pursuant to section 1385 and
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court
denied the motion and sentenced Collier to a total of six years in prison.
Following People v. Burke (2023) 89 Cal.App.5th 237 (Burke) and People v.
1 Undesignated statutory references are to the Penal Code.
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Olay (Dec. 21, 2023, A166288) ___ Cal.App.5th ___ [2023 Cal.App. LEXIS
983] (Olay), we conclude section 1385(c) did not apply to Collier’s motion, and
the trial court did not otherwise abuse its discretion in denying the motion.
We affirm.
BACKGROUND
The People charged Collier in five separate cases, which were
eventually consolidated. We briefly summarize the facts of each case based
on the probation reports and Collier’s negotiated plea agreement. All told,
there were 135 victims in the five cases. Collier also pleaded guilty to a
federal charge of possession of stolen mail (18 U.S.C. § 1708).
A. Case No. 21CR000304
On February 15, 2020, a resident of American Canyon contacted police
reporting he had found stolen mail in his backyard. Police collected mail
addressed to 17 different individuals. Investigators processed the mail for
latent prints, and found Collier’s fingerprints on several different pieces of
mail.
Collier pleaded no contest to one count of identity theft with a prior
(§ 530.5, subd. (c)(2)). He also admitted that he had suffered a prior strike
conviction for first degree robbery with a firearm in 1993. The People
dismissed the remaining counts. Collier also admitted eight of the
aggravating factors set out in California Rules of Court, rule 4.421: (1) he
was being convicted of other crimes for which consecutive sentences could
have been imposed, but for which concurrent sentences were being imposed;
(2) the crime was carried out in a manner that indicates “planning,
sophistication, or professionalism”; (3) the crime involved an “attempted or
actual taking or damage of great monetary value”; (4) the crime involved a
“large quantity of contraband”; (5) his prior convictions were “numerous or of
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increasing seriousness”; (6) he had served a prior prison term; (7) he was on
probation when the present offenses were committed; and (8) his prior
performance on probation was “unsatisfactory.”
B. Case No. 21CR000340
On April 13, 2020, police observed Collier weaving across driving lanes.
Officers searched the vehicle during the ensuing traffic stop and found stolen
checks, credit cards, mail addressed to various individuals and businesses in
the vehicle, as well as marijuana, methamphetamine and marijuana pipes,
and an open alcohol container. Collier’s blood sample taken at booking tested
positive for methamphetamine and marijuana.
Collier pleaded no contest to one count of identity theft with a prior
(§ 530.5, subd. (c)(2)) and one count of alcohol-related reckless driving (Veh.
Code, § 23103.5). The People dismissed the remaining counts. Collier
admitted the prior strike allegation and the same eight factors in aggravation
as in case No. 21CR000034 above.
C. Case No. 21CR000382
On July 3, 2020, police officers (familiar with Collier based on prior
investigations) approached him and he consented to a search of his nearby
vehicle. Among other things, the vehicle contained stolen checks,
identification cards, credit cards, and mail addressed to various individuals
and businesses.
Collier pleaded no contest to one count of identity theft with a prior
(§ 530.5, subd. (c)(2)). The People dismissed the remaining counts. Collier
admitted the prior strike allegation and the same eight factors in aggravation
detailed above.
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D. Case No. 21CR000832
On April 1, 2020, police officers initiated a traffic stop and Collier
consented to a search of his vehicle. The search revealed stolen checks, social
security cards, driver’s licenses, credit cards, bank documents, car titles, and
mail addressed to various individuals. One of the driver’s licenses belonged
to a citizen who had previously reported that someone named “Collier” had
applied to open a credit card account in her name. Collier’s phone contained
text messages with multiple individuals coordinating the creation of
fraudulent accounts. Video footage also captured Collier using one of these
fraudulent accounts, approaching an ATM and attempting to cover the
camera.
Collier pleaded no contest to one count of conspiracy to commit
identifying information theft (§ 182, subd. (a)(1)). The People dismissed the
remaining counts. Collier admitted the prior strike allegation and the same
eight factors in aggravation detailed above, along with a ninth factor that he
induced others to participate in the crime or “occupied a position of
leadership or dominance” of the other participants. (Cal. Rules of Court, rule
4.421(a)(4).)
E. Case No. 21CR000871
On April 28, 2020, police officers observed that Collier’s vehicle
windows were excessively tinted (Veh. Code, § 26708), and initiated a traffic
stop. A search revealed credit cards, bank documents, and mail addressed to
other individuals. Collier pleaded no contest to one count of identity theft
with a prior (§ 530.5, subd. (c)(2)). The People dismissed the remaining
counts. Collier admitted the prior strike allegation and the same eight
factors in aggravation as in the first three cases.
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F. Romero Motion
Along with the sentencing memorandum, defense counsel filed a motion
requesting dismissal of Collier’s prior strike conviction pursuant to section
1385 and Romero. The motion identified four factors that it argued had
placed Collier “outside the spirit of the Three Strikes law.” Specifically, it
noted the current offenses were non-violent, the 1993 prior strike conviction
was remote, Collier’s criminal record lacked a history of violence and was
“primarily related to his substance abuse problem,” and the lengthy sentence
that would result in this case would be “excessive.” The sentencing
memorandum argued that a four-year term was appropriate in light of
Collier’s sentencing in a federal case, where he had pleaded guilty to one
count of possession of stolen mail (18 U.S.C. § 1708) and was sentenced to 21
months in prison. Collier also submitted a declaration describing childhood
abuse, substance abuse, and mental health issues.
The People asked the court to deny the motion and impose a 10-year
prison term (the maximum sentence under the plea agreement). The People
cited “the serious nature of these offenses involving over one-hundred-twenty
identified potential victims; the sophisticated nature of the criminal
enterprise which took place at the height of the inaugural COVID-19
pandemic shutdown; the defendant’s abysmal criminal history; and the fact
that he was on nine grants of probation at the time he committed these
offenses.” The People provided an overview of Collier’s “extensive criminal
record dating back to 1990 with twenty-eight prior felony convictions and two
prison commitments,” including multiple arrests while on parole, as well as
pleas in nine Solano County cases for offenses in 2015 to 2018 that ranged
from commercial burglary and vandalism to identity theft. The People
described the facts of the 1993 prior strike conviction as “ ‘horrific.’ ” Collier
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and two other men had broken into a family residence, ordered a victim and
her young children out of the home and into a van, held them at gunpoint,
and then stopped nearby and fled the van.
Defense counsel filed a reply brief. The reply noted that the
Legislature had recently amended section 1385 to add subdivision (c), which
provided in relevant part that the court “shall dismiss an enhancement if it is
in the furtherance of justice to do so,” and in exercising such discretion, 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.” Collier argued that this analytical
framework applied to the pending Romero motion. He contended that the
mitigating factors under section 1385(c) included: (1) current offense
connected to mental illness; (2) current offense connected to childhood
trauma; (3) current offense not a violent felony; and (4) enhancement based
on prior conviction over five years old. (§ 1385, subd. (c)(2)(D)–(F), (H).)
G. Trial Court’s Ruling
At the sentencing hearing, the court stated that it had reviewed the
Romero motion, opposition, and reply, as well as the probation report and the
sentencing memoranda in both this consolidated case and the federal stolen
mail case. The trial court indicated it was “grappling with the new
legislation Penal Code 1385 subdivision (c) and whether that applies to strike
priors or not.” It referenced “long-standing common law holdings that
consider factors that double a sentence are considered alternative sentences
and not enhancements.”
The court explained that, even if section 1385(c) was applicable to
strike priors, dismissing the prior strike would be “a little difficult in this
case.” The court noted Collier’s prior felony convictions, poor performance
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while on parole, and nine grants of probation in Solano County. It continued:
“While he’s on probation in Solano he decides now to start committing crimes
in Napa. And over a period of five months, he victimized a number of
people . . . this is a course of conduct that has been going on for about 30
years now. With some period of being a law abiding citizen, but for the bulk
of it he’s been convicted of felony convictions left and right in different
jurisdictions.” The current offenses involved a “well-organized” and “very
sophisticated” identify theft ring, where Collier would draw money from
victim’s accounts, attempt to open credit cards, redirect mail and packages,
compile information, and take “screenshots of this information so he [could]
share with his culprits.”
The trial court denied the Romero motion. In case No. 21CR000832, it
sentenced Collier to the upper term of three years in prison, doubled to six
years due to the prior strike conviction. The court imposed concurrent
sentences of 16 months, doubled to 32 months due to the prior strike, on each
of the counts for identify theft with a prior in the other four cases.
This appeal followed.
DISCUSSION
Section 1385, subdivision (a) authorizes trial courts to dismiss an
action “in furtherance of justice.” In Romero, our Supreme Court held that a
trial court’s discretion under section 1385, subdivision (a) includes the power
to dismiss a prior conviction alleged under the Three Strikes law. (Romero,
supra, 13 Cal.4th at pp. 529–530.) “The ‘Three Strikes’ law provides that for
a defendant convicted of a felony who has sustained two or more qualifying
prior felony convictions—commonly known as strikes—‘the term for the
current felony conviction shall be an indeterminate term of life
imprisonment,’ with the ‘minimum term . . .’ being the greatest of three
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options” (People v. Acosta (2002) 29 Cal.4th 105, 108), one of which is 25 years
(§§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii)).
In deciding whether to strike a prior strike, the court “must consider
whether, in light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside
the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or
violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Collier argues that the framework set forth in the recently added
subdivision (c) of section 1385 applies to this analysis. Effective January 1,
2022, that subdivision provides, in relevant part: “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 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.” (Stats. 2021, ch. 721, § 1.)
As noted above, Collier contends there are four mitigating factors from
section 1385(c)—a current offense connected to mental illness, also connected
to childhood trauma, and not a violent felony, plus a prior conviction over five
years old—that the trial court did not “ ‘consider and afford great weight’ ” in
denying his motion.
Collier’s argument raises a question of statutory construction.
“Pursuant to established principles, our first task in construing a statute is to
ascertain the intent of the Legislature so as to effectuate the purpose of the
law. In determining such intent, a court must look first to the words of the
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statute themselves, giving to the language its usual, ordinary import and
according significance, if possible, to every word, phrase and sentence in
pursuance of the legislative purpose. A construction making some words
surplusage is to be avoided. The words of the statute must be construed in
context, keeping in mind the statutory purpose, and statutes or statutory
sections relating to the same subject must be harmonized, both internally
and with each other, to the extent possible.” (Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386–1387.)
Here, Collier points to dictionary definitions of the term
“enhancement,” as well as legislative history generally describing an intent to
reduce sentencing disparities, to argue that the “ordinary” meaning of section
1385(c) is broad and includes prior strike convictions. But when a term “has
developed a particular meaning in the law, we generally presume the
legislative body used the term in that sense rather than relying on ordinary
usage. ‘It is a well-recognized rule of construction that after the courts have
construed the meaning of any particular word, or expression, and the
legislature subsequently undertakes to use these exact words in the same
connection, the presumption is almost irresistible that it used them in the
precise and technical sense which had been placed upon them by the courts.’ ”
(In re Friend (2011) 11 Cal.5th 720, 730; see also § 7, subd. (16) [Words and
phrases that have “acquired a peculiar and appropriate meaning in law, must
be construed according to such peculiar and appropriate meaning”].)
With this principle in mind, the plain language of section 1385(c)
clearly demonstrates it is not applicable here. Burke and Olay are instructive
on the point. In Burke, the appellate court explained that section 1385(c)
“expressly applies to the dismissal of an ‘enhancement.’ ” (Burke, supra,
89 Cal.App.5th at p. 243.) “The term ‘enhancement’ has a well-established
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technical meaning in California law. [Citation.] ‘A sentence enhancement is
“an additional term of imprisonment added to the base term.” ’ ” (Ibid., citing
Romero, supra, 13 Cal.4th at pp. 526–527 and quoting People v. Jefferson
(1999) 21 Cal.4th 86, 101.) “It is equally well established that the Three
Strikes law is not an enhancement; it is an alternative sentencing scheme for
the current offense.” (Burke, at p. 243, citing Romero, at p. 527.) “We
presume the Legislature was aware of, and acquiesced in, both this
established judicial definition of enhancement and the distinction between an
enhancement and an alternative sentencing scheme such as the Three
Strikes law.” (Burke, at p. 243.)
Olay also concluded that section 1385(c) does not apply to the Three
Strikes law. (Olay, supra, 2023 Cal.App. LEXIS 983 at p. *9.) It reasoned
that “If the Legislature had wanted section 1385, subdivision (c) to apply to
prior strikes as well as to enhancements as legally defined, it would have said
so,” but “The legislative history confirms the Legislature had no such intent.”
(Olay, at p. *10.) For example, analysis by the Assembly Committee on
Public Safety “distinguished an ‘enhancement’ from ‘an alternative penalty
scheme’ like the Three Strikes law,” and explicitly stated that “ ‘[t]he
presumption created by this bill applies to enhancements [] but does not
encompass alternative penalty schemes.’ ” (Ibid.) The court concluded: “A
more unambiguous statement of the Legislature’s intent to adopt the legal
meaning of enhancement for section 1385, subdivision (c) can hardly be
imagined.” (Ibid.) We agree with Burke and Olay that the framework for
considering mitigating circumstances under section 1385(c) did not apply to
Collier’s motion to dismiss his prior strike conviction.
We do not see any basis to conclude that the trial court otherwise
abused its discretion in denying the motion. (People v. Carmony (2004)
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33 Cal.4th 367, 375; see also People v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 977 [“ ‘The burden is on the party attacking the sentence
[imposed for a criminal conviction] to clearly show that the sentencing
decision was irrational or arbitrary’ ”].) At the sentencing hearing, the court
stated it had reviewed the briefing on the motion, probation report,
memoranda from both parties in this case, as well as the memoranda in
Collier’s federal case. The court considered the nature and seriousness of
Collier’s current offenses, which involved Collier’s participation in a “well-
organized” and “very sophisticated” identify theft ring that victimized a
number of people. While Collier’s original strike conviction was
approximately 30 years prior, the court noted his poor performance on parole
and probation, and recognized that during the “bulk” of the intervening
period, Collier had been “convicted of felony convictions left and right in
different jurisdictions.” (See, e.g., People v. Vasquez (2021) 72 Cal.App.5th
374, 390 [“A prior strike conviction is not considered ‘remote’ for the purposes
of mitigation where the defendant has not demonstrated a prolonged period
of rehabilitation (a crime free life) in the interim”].) The record thus reflects
that the trial court balanced relevant factors here and “ ‘reached an impartial
decision in conformity with the spirit of the law.’ ” (Carmony, at p. 378.)
In sum, we conclude the trial court did not abuse its discretion in
denying Collier’s motion to dismiss his prior strike conviction.
DISPOSITION
The judgment is affirmed.
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_________________________
Markman, J.*
We concur:
_________________________
Stewart, P.J.
_________________________
Richman, J.
People v. Collier (A165532)
* Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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