People v. Collins CA4/1 ( 2024 )

Filed 9/18/24 P. v. Collins CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083264
Plaintiff and Respondent,
v. (Super. Ct. No. FVI19002362)
BOBBY LEWIS COLLINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, John Peter Vander Feer, Judge. Affirmed.
Reed Webb, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Christine
Y. Friedman and Eric A. Swenson, Deputy Attorneys General, for Plaintiff
and Respondent.
Bobby Lewis Collins appeals the judgment resentencing him to the
same prison term after we vacated his original sentence in a prior appeal and
remanded the matter to allow the trial court to apply amendments to
sentencing statutes that took effect while the prior appeal was pending.
Collins contends the trial court abused its discretion by refusing to dismiss a
five-year enhancement for a prior serious felony conviction that was older
than five years. We disagree and affirm the judgment on resentencing.
BACKGROUND
In August 2019, Collins, who has a black belt in jujutsu, was offended
by something Michael W. said and beat him to the point of unconsciousness.
Michael suffered facial cuts, a chipped tooth, severe injuries to his nose and
left eye, head trauma, and bruised ribs. Michael took pain medication for
more than two months after the attack, and at the time of trial he still
experienced dizziness and visual problems.
A jury found Collins guilty of assault by means of force likely to
produce great bodily injury (Pen. Code, § 245, subd. (a)(4); undesignated
section references are to this code), and found true an allegation that in
committing the assault he personally inflicted great bodily injury on a person
other than an accomplice (§ 12022.7, subd. (a)). In a separate bench trial, the
court found Collins had a conviction of first degree burglary in 2001, which
constituted a serious felony for purposes of a five-year enhancement (§ 667,
subd. (a)(1)) and a strike for purposes of the “Three Strikes” law (§§ 667,
subds. (b)–(i), 1170.12). The court sentenced Collins to an aggregate prison
term of 16 years, which consisted of the upper term of four years for the
assault conviction (§ 245, subd. (a)(4)), which was doubled to eight years
based on the prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)),
plus consecutive terms of three years for the great bodily injury enhancement
(§ 12022.7, subd. (a)) and five years for the prior serious felony conviction
(§ 667, subd. (a)(1)).
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While Collins’s appeal of the judgment of conviction was pending,
statutory amendments took effect that restricted courts’ discretion to impose
upper prison terms and specified mitigating factors courts must consider
when deciding whether to dismiss enhancements. We vacated the sentence
and remanded the matter for full resentencing so that the trial court could
apply the amendments.
After the remittitur issued, the People filed a resentencing brief in
which they urged the trial court to reimpose the same 16-year prison term
imposed at the original sentencing hearing. They argued Collins’s vicious
beating of the victim and history of violent crimes warranted imposition of
the upper term on the conviction of assault by means of force likely to
produce great bodily injury. The People also argued that although the age of
Collins’s prior first degree burglary conviction weighed greatly in favor of
dismissal, the court should not exercise its discretion to dismiss the
associated five-year enhancement because his current and prior crimes
indicated dismissal would endanger public safety. The record on appeal
contains no resentencing brief from Collins.
At a resentencing hearing held on October 5, 2023, Collins’s counsel
argued that because the court at the original sentencing hearing had imposed
the upper term on the conviction of assault by means of force likely to
produce great bodily injury based largely on the victim’s injuries, the court
should impose the upper term on the conviction and strike the attached great
bodily injury enhancement, or, alternatively, impose both the middle term
and the enhancement. Counsel asked the court to exercise its discretion to
strike the five-year enhancement for the prior serious felony conviction,
because it was more than five years old and would be used to punish Collins
for recidivism under the Three Strikes law. The People urged the court to
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resentence Collins to the same aggregate 16-year prison term it had imposed
at the original sentencing hearing, based on the severity of the assault on the
victim and Collins’s criminal record, which included multiple convictions
involving different victims and multiple parole and probation violations.
The court stated it had reviewed and considered the probation officer’s
report prepared for the original sentencing hearing.1 The court
acknowledged “its wide range of discretion” on whether to impose the upper,
middle, or lower term on the assault conviction and whether to strike the
great bodily injury enhancement and the prior serious felony conviction
enhancement. Based on the “viciousness” of the crime, the “severity” of the
injuries inflicted, Collins’s “lack of remorse” (as indicated by his testimony at
trial to the effect that “he was justified” in “beating the victim to a pulp”), and
his “prior record,” the court found this was not an “exceptional case
warranting striking of the [prior] strike [conviction]” and it was “not in the
interest of the justice” to strike the five-year enhancement for the prior
serious felony conviction. The court thus denied Collins’s request to strike
the 2001 first degree burglary conviction for sentencing purposes. Based on
Collins’s numerous prior convictions, poor performance on parole and
probation, and the lack of any mitigating factors, the court sentenced Collins
to the upper term of four years on the assault conviction, which it doubled to
eight years based on the prior strike conviction. The court found Collins
1 The probation officer’s report listed 12 prior convictions from 1983
through 2017, including petty theft (two different incidents), trespass, second
degree burglary, possession of a firearm by a felon, possession of a controlled
substance, vandalism, battery, attempted petty theft, first degree burglary,
assault with a deadly weapon, and criminal threats. The report also listed
three prior prison terms, one probation revocation, and four parole violations.
According to the report, Collins was on probation for the criminal threats
conviction when he committed the current assault.
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inflicted severe injuries on the victim and there was no justification not to
impose the three-year great bodily injury enhancement. The court
resentenced Collins to the same 16-year prison term it had imposed at the
original sentencing hearing.
DISCUSSION
Collins challenges the trial court’s refusal to dismiss the five-year
enhancement for his prior serious felony conviction. He contends the court
did not give the statutorily required “great weight” to the mitigating
circumstance that the conviction was more than five years old in considering
whether to dismiss it. (§ 1385, subd. (c)(2)(H).) Collins also contends that in
refusing to dismiss the enhancement the court did not make the statutorily
required finding that dismissal “would endanger public safety.” (Id., subd.
(c)(2).) He asks us to remand the matter to the trial court “for one more
attempt to get his sentence in line with the recent changes that have been
made with the object of reducing a prison population of aging inmates who
are needlessly being warehoused for multiple-year terms without any
foreseeable benefits commensurate with the costs of their incarceration.”
Section 1385, subdivision (c)(1) authorizes a court to 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.” “In exercising
its discretion under this subdivision, the court shall afford great weight to
evidence offered by the defendant to prove that any of the mitigating
circumstances in subparagraphs (A) to (I) are present.” (Id., subd. (c)(2).)
Proof of such circumstances “weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal . . . would endanger
public safety. ‘Endanger public safety’ means there is a likelihood that the
dismissal of the enhancement would result in physical injury or other serious
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danger to others.” (Ibid.) Hence, “[p]ursuant to section 1385, subdivision
(c)(2), absent a finding that dismissal would endanger public safety, a court
must assign significant value to the enumerated mitigating circumstances
when they are present. In practice, the presence of an enumerated
mitigating circumstance will generally result in the dismissal of an
enhancement unless the sentencing court finds substantial, credible evidence
of countervailing factors that ‘may nonetheless neutralize even the great
weight of the mitigating circumstance, such that dismissal of the
enhancement is not in furtherance of justice.’ ” (People v. Walker (2024)
16 Cal.5th 1024, 1038 (Walker).)
We review a court’s decision on whether to dismiss an enhancement
under section 1385 for abuse of discretion. (People v. Williams (1998)
17 Cal.4th 148, 162; People v. Gonzalez (2024) 103 Cal.App.5th 215, 225;
Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490.) Such an abuse
occurs when the court “was not ‘aware of its discretion’ to dismiss,”
“considered impermissible factors in declining to dismiss,” or made a decision
that “is so irrational or arbitrary that no reasonable person could agree with
it.” (People v. Carmony (2004) 33 Cal.4th 367, 377–378 (Carmony); accord,
Nazir, at p. 490.) The party attacking the court’s sentencing decision has the
burden to show an abuse of discretion, and absent such a showing the
decision will be upheld. (Carmony, at pp. 376–377; People v. Pearson (2019)
38 Cal.App.5th 112, 116.)
In support of his contention the trial court abused its discretion in
refusing to dismiss the five-year enhancement for his prior serious felony
conviction, Collins relies on the mitigating circumstance that “[t]he
enhancement is based on a prior conviction that is over five years old.”
(§ 1385, subd. (c)(2)(H).) He faults the court for “simply ignor[ing]” the
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Legislature’s direction to give that circumstance “great weight” in exercising
its discretion to dismiss the enhancement (id., subd. (c)(2)) and for imposing
the enhancement without making what he considers a “required finding” that
dismissal “would endanger public safety” (ibid). Collins argues these failures
warrant remand for another resentencing. We disagree.
Collins cites no authority that obligates a court expressly to state that
it gave a mitigating circumstance “great weight” or that dismissal of an
enhancement “would endanger public safety” before it imposes an
enhancement it has discretion to dismiss. (§ 1385, subd. (c)(2).) Section 1385
requires a statement of reasons when a court dismisses an enhancement in
furtherance of justice, but not when it declines to do so. (Id., subd. (a); In re
Large (2007) 41 Cal.4th 538, 550; People v. Brugman (2021) 62 Cal.App.5th
608, 637 (Brugman); In re Renfrow (2008) 164 Cal.App.4th 1251, 1255.) The
record indicates the court was aware of its discretion to dismiss the five-year
enhancement based on the age of the prior serious felony conviction. At the
resentencing hearing, Collins’s counsel told the court the conviction occurred
in 2001, and the probation officer’s report, which the court reviewed, listed
the date. Both parties advised the court the age of the conviction weighed
greatly in favor of dismissal of the enhancement, and the court acknowledged
“its wide range of discretion in this case.” Although the court did not
expressly state that it gave great weight to the age of the prior conviction or
that dismissal of the enhancement would endanger public safety, we presume
it acted in accordance with section 1385 when it refused to dismiss the
enhancement. (See People v. Stowell (2003) 31 Cal.4th 1107, 1114 [“ ‘a trial
court is presumed to have been aware of and followed the applicable law’ ”];
People v. Kelly (2018) 28 Cal.App.5th 886, 904 [“When there is no ‘explicit
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ruling by the trial court at sentencing, we infer that the court made the
finding appropriate to the sentence it imposed’ ”].)
We reject Collins’s contention that “if the court were not going to
dismiss a two-decade old prior conviction enhancement then the court had to
make a finding that dismissal of the enhancement would endanger public
safety.” Our Supreme Court recently explained that in the absence of such a
finding, the statute “does not ‘presume’ [citation] an enhancement should be
dismissed whenever an enumerated mitigating circumstance is present, but
instead ‘the ultimate question before the trial court remains whether it is in
the furtherance of justice to dismiss an enhancement’ [citation] and this
‘furtherance of justice’ [citation] inquiry requires a trial court’s ongoing
exercise of ‘discretion.’ ” (Walker, supra, 16 Cal.5th 1024 at p. 1033) If the
court does not find dismissal of an enhancement would endanger public
safety, “the presence of an enumerated mitigating circumstance will
generally result in the dismissal of an enhancement unless the sentencing
court finds substantial, credible evidence of countervailing factors that ‘may
nonetheless neutralize even the great weight of the mitigating circumstance,
such that dismissal of the enhancement is not in furtherance of justice.’ ” (Id.
at p. 1036) The countervailing factors a court may consider include the
aggravating circumstances listed in rule 4.421 of the California Rules of
Court, as well as the nature and circumstances of the current crime and the
defendant’s background, character, and prospects. (People v. Williams (1998)
17 Cal.4th 148, 161; People v. Yanaga (2020) 58 Cal.App.5th 619, 626–627;
Advisory Com. com. to Cal. Rules of Court, rule 4.428.)
The trial court expressly found dismissal of the five-year enhancement
for Collins’s 2001 first degree burglary conviction was not in furtherance of
justice based on several factors. As to the nature and circumstances of the
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current conviction, the court found the assault involved “viciousness” and
“great bodily harm” to the victim. (Cal. Rules of Court, rule 4.421(a)(1).) As
to Collins’s background, character, and prospects, the court found he had
numerous prior convictions, served multiple prior prison terms, performed
poorly on probation and parole (see fn. 1, ante), and lacked remorse. (Id., rule
4.421(b)(2)–(5), (c); People v. Galindo (1991) 229 Cal.App.3d 1529, 1539.) In
making these findings, the court relied on testimony, photographs, and
certified prior conviction records presented at trial, and on the probation
officer’s report. (See People v. Carter (2019) 34 Cal.App.5th 831, 843 [court
may consider evidence presented at trial in making discretionary sentencing
choices]; People v. Jackson (1978) 78 Cal.App.3d 533, 542 [sentencing court
may rely on convictions and arrests included in probation officer’s report].)
The record thus shows the trial court considered proper factors, and its
findings on those factors are supported by substantial evidence. Whether the
cumulative weight of the aggravating factors exceeded the “great weight” to
be afforded the mitigating factor that the prior conviction was older than five
years (§ 1385, subd. (c)(2)(H)), so that it would not be in furtherance of justice
to dismiss the five-year enhancement associated with the prior conviction
(id., subd. (c)(1)), was a matter within the trial court’s discretion. (Walker,
supra, 16 Cal.5th at p. 1033) We may neither reweigh the factors nor
substitute our assessment for that of the trial court. (Carmony, supra,33 Cal.4th at p. 377; People v. Scott (1994) 9 Cal.4th 331, 355.)
In sum, we conclude that given the violent nature of Collins’s current
conviction and his extensive criminal history, the trial court’s conclusion it
would not be “in the furtherance of justice” to dismiss the five-year
enhancement for the prior serious felony conviction (§ 1385, subd. (c)(1)) was
not “so irrational or arbitrary that no reasonable person could agree with it”
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(Carmony, supra, 33 Cal.4th at p. 377; accord, Brugman, supra,
62 Cal.App.5th at p. 640). Collins has established no abuse of discretion that
would require us to vacate the sentence imposed at the resentencing hearing
and to remand the matter for a third sentencing hearing.2
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
CASTILLO, J.
2 Our conclusion no remand is required makes it unnecessary for us to
consider Collins’s contentions that at a third sentencing hearing the trial
court should consider his “post-conviction conduct and rehabilitation efforts”
and the mitigating circumstance that “[m]ultiple enhancements [were]
alleged in a single case” (§ 1385, subd. (c)(2)(B)).
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