People v. Dileva CA4/1 ( 2024 )

Filed 9/19/24 P. v. Dileva 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083777
Plaintiff and Appellant,
v. (Super. Ct. No. RIF2200513)
LAWRENCE MICHAEL DILEVA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Riverside County,
Jeffrey J. Prevost, Judge. Affirmed.
Michael A. Hestrin, District Attorney, and Janinda Gunawardene,
Deputy District Attorney, for the Plaintiff and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for
Defendant and Respondent.
The People appeal from a judgment imposing an indeterminate term of
15 years to life plus a consecutive determinate term of 10 years against
Lawrence Michael Dileva after his guilty plea to second degree murder (Pen.
Code,1 § 187, subd. (a)) and gross vehicular manslaughter while intoxicated
(§ 191.5, subd. (a)) with two serious felony and strike priors (§§ 667, subds.
(a), (c), (e)(2)(a), 1170.12, subd. (c)(2)(a)). The People contend that the trial
court abused its discretion by considering certain mitigating circumstances
set forth in section 1385, subdivision (c) when it struck Dileva’s two strike
priors under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We
conclude that the People waived their claim of error by failing to raise it in
the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal arises from a guilty plea before a preliminary
hearing, there is no evidentiary record of the underlying facts. According to
the probation report, Dileva was driving under the influence of
methamphetamine when he crossed over the double yellow lines of a two-lane
roadway and crashed into an oncoming vehicle, resulting in the death of the
other driver.
Dileva was charged with murder (§ 187) and gross vehicular
manslaughter while intoxicated (§ 191.5, subd. (a)). The complaint further
alleged that he had suffered two prior convictions for gross vehicular
manslaughter while intoxicated in 2009. These were charged as five-year
serious felony priors (§ 667, subd. (a)) and strike priors (§§ 667, subds. (c),
(e)(2)(a), 1170.12, subd. (c)(2)(a)).
At a mandatory settlement conference, the defense made efforts to
resolve the case, but the People rejected all offers and made no counteroffer.
The defense then sought an indicated sentence from the court. After both
parties presented the details of the case and Dileva’s criminal history, the
1 Undesignated statutory references are to the Penal Code.
2
court gave an indicated sentence of 15 years to life plus 10 years based on its
tentative inclination to grant a defense Romero motion to strike the strike
priors.
Dileva then filed a Romero motion to dismiss his strike priors and the
People filed an opposition. In both the motion and opposition, the parties
informed the trial court of the correct legal standard for a Romero motion.
Specifically, the parties agreed that the court “must consider whether, in
light of the nature and circumstances of his present felonies and
prior . . . convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the [Three Strikes] scheme’s
spirit . . . .” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
In Dileva’s motion, he further argued that the trial court should
consider the following three mitigating circumstances set forth in recently
enacted section 1385, subdivision (c)2: (1) “Multiple enhancements are
alleged in a single case” (§ 1385, subd. (c)(2)(B)); (2) “The application of an
enhancement could result in a sentence of over twenty years” (id., subd.
(c)(2)(C)); and (3) “The enhancement is based on a prior conviction that is
over five years old” (id., subd. (c)(2)(H)).
2 For all criminal sentencings after January 1, 2022, the Legislature in
Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) has
provided direction on how trial courts are to exercise their discretion in
deciding whether to dismiss sentencing enhancements. Specifically, section
1385, subdivision (c)(1) now provides that “the court shall dismiss an
enhancement if it is in the furtherance of justice to do so,” and subdivision
(c)(2) states that “[i]n exercising its discretion under this subdivision, the
court shall consider and afford great weight to evidence” of nine listed
“mitigating circumstances,” any “one or more” of which “weighs greatly in
favor of dismissing the enhancement, unless the court finds that dismissal of
the enhancement would endanger public safety.”
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In their opposition papers, the People did not argue that section 1385,
subdivision (c) is inapplicable to a Romero motion to dismiss strikes under
the Three Strikes Law. The People asserted that section “1385(c)(2) now
directs the court to consider” and give great weight to the presence of various
mitigating circumstances “ ‘unless the court finds that dismissal of the
enhancement would endanger public safety.’ ” The People further argued:
“Here, although arguably a few of the . . . mitigating circumstances may be
present, the danger to public safety far outweighs any of the circumstances.”
At the continued mandatory settlement conference after briefing of the
Romero motion, Dileva entered a guilty plea based on the court’s indicated
sentence and its agreement to entertain his Romero motion. Before taking
the guilty plea, the court stated: “One thing I do want to make clear on the
record is if the Court, myself, changed my mind with respect to striking the
strike priors, you will be allowed to withdraw your plea and proceed as if the
plea had never taken place.” Based on this understanding, Dileva pled guilty
to the charges and admitted the two serious felony and strike priors.
The court then proceeded directly to sentencing and the Romero
motion. In arguing the Romero motion, defense counsel repeated her
contention that the court should consider the mitigating circumstances listed
in section 1385, subdivision (c)(2). In response, the People again did not
contend that these mitigating circumstances were inapplicable to strike
priors or a Romero motion. Instead, the prosecutor affirmatively urged the
court to apply the “endanger public safety” exception of the statute as follows:
“1385, subdivision (c), the newest amendment or a new amendment effective
last year, shows that the Court should -- shall consider and afford great
weight to prove any of the mitigating circumstances, and that finding those
mitigating circumstances weighs greatly in favor[] of dismissing the
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enhancement, unless the Court finds the dismissal of the enhancement would
endanger the public safety. The only place that the defendant does not
endanger public safety is when he is incarcerated.” She elaborated:
“1385(c)(2) further explains what ‘endangering public safety’ means.
Endangering public safety there is a likelihood the dismissal of the
enhancement would cause other serious injury to others. How do we know
this? As we all say, the best predictor of future behavior is past.”
In making its ruling on the Romero motion, the trial court stated
several times that it intended to consider the mitigating circumstances in
section 1385, subdivision (c)(2) relied on by the defense. The People did not
object that these mitigating circumstances were irrelevant or inapplicable to
strike priors. The trial court also stated that it had considered the Supreme
Court’s decision in People v. Garcia (1999) 20 Cal.4th 490, which applied the
correct standard set forth in Romero and Williams and found no abuse of
discretion in a trial court’s decision to strike five strike priors, in part because
the defendant still received a lengthy prison sentence. (Garcia, at pp. 496–
503.) Citing Garcia, the trial court noted “even if the strikes are stricken,
that Mr. Dileva will be incarcerated for a very substantial period of time.”
After the trial court agreed to strike both strike priors, the prosecutor
inquired whether it was “finding that the dismissal of those enhancements
would not endanger public safety[.]” The court responded: “Yes, I find that
and that, given the fact that Mr. Dileva will be incarcerated for a very
substantial period of time, that public safety will not be endangered.” The
court then proceeded to sentence Dileva to an indeterminate term of 15 years
to life plus a consecutive determinate term of 10 years.
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DISCUSSION
For the first time on appeal, the People argue that the trial court
abused its discretion in granting the Romero motion by relying on the
mitigating circumstances set forth in section 1385, subdivision (c)(2). They
rely on the March 2023 holding of People v. Burke (2023) 89 Cal.App.5th 237(Burke), which found that this subdivision only applies to enhancements, not
strikes under the Three Strikes Law. (Id. at pp. 242–244.)
We conclude that the People waived this argument by failing to raise it
in the trial court. The People had ample opportunity to object to Dileva’s
reliance on these mitigating circumstances in their written opposition to the
Romero motion and in response to defense counsel’s arguments and the trial
court’s comments at the hearing. Yet they failed to do so. Even though
Burke was decided three months before the People filed their June 2023
opposition to the Romero motion, and four months before the July 2023
hearing on the motion, the People never cited Burke to the trial court or made
this argument. Instead, the People essentially conceded the existence of
mitigating circumstances under section 1385, subdivision (c) and asked the
trial court to apply the statute’s “endanger public safety” exception. In other
words, rather than object that the statute does not apply to a Romero motion
under Burke, the People led the trial court to believe that it does apply and
that the mitigating circumstances were therefore relevant unless a dismissal
would endanger public safety.
“As a general rule, only claims properly raised and preserved by the
parties are reviewable on appeal.” (People v. Smith (2001) 24 Cal.4th 849,
852 (Smith) [cleaned up].) “In the sentencing context, we have applied the
rule to claims of error asserted by both the People and the defendant.” (Ibid.)
This waiver rule specifically applies to any claim that the trial court failed to
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properly make or articulate its discretionary sentencing choices, including
claims that “the stated reasons allegedly do not apply to the particular
case . . . .” (People v. Scott (1994) 9 Cal.4th 331, 352–353 (Scott).)
In their supplemental briefing, the People invoke the “narrow exception
to the waiver rule for unauthorized sentences or sentences entered in excess
of jurisdiction.” (Smith, supra, 24 Cal.4th at p. 852 [cleaned up].) An
unauthorized sentence is one that “could not lawfully be imposed under any
circumstances in the particular case.” (Scott, supra, 9 Cal.4th at p. 354.)
This narrow exception does not apply here. The People cannot genuinely
dispute that the trial court had the authority and jurisdiction to strike
Dileva’s strikes, or that the sentence it imposed after doing so was lawful.
Even assuming any error in the court’s rationale for striking the strike
priors, the trial court did not impose an unauthorized sentence or act in
excess of its jurisdiction.
The People also refer to language in Smith stating: “In other words,
obvious legal errors at sentencing that are correctable without referring to
factual findings in the record or remanding for further findings are not
waivable.” (Smith, supra, 24 Cal.4th at p. 852.) Read in context, however,
this was just the last sentence of a paragraph devoted entirely to the “narrow
exception” for unauthorized sentences or sentences entered in excess of
jurisdiction. (Ibid.) This isolated sentence was not intended to create an
even broader exception to the waiver rule. Also, if we were to grant the relief
requested by the People and reverse the trial court’s order granting the
Romero motion, we would have to remand for further proceedings that could
result in a full trial, because a condition of Dileva’s guilty plea was that he
would be permitted to withdraw it if the Romero motion was denied. Thus,
the trial court’s alleged sentencing error is not easily correctable on appeal
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without a remand for further proceedings. (Cf. People v. Brach (2002) 95
Cal.App.4th 571, 578 [defendants’ claim of error was “not the sort of ‘obvious’
and easily correctable error” mentioned in Smith because, if sustained, it
would require a remand for further proceedings].)
Finally, the People argue that we should “seize this opportunity to
rectify an obvious yet correctable legal error” because “[l]eaving this decision
undisturbed will set an unhealthy precedent for the trial court, who may
commit the same legal error during the sentencing phase in future matters.”
But the whole purpose of the waiver rule is to encourage parties to bring such
obvious errors to the trial court’s attention so that they can be corrected
without appellate intervention. (Smith, supra, 24 Cal.4th at p. 852; People v.
Saunders (1993) 5 Cal.4th 580, 589–590.) The People can easily prevent any
such error in the future by making appropriate objections and citing the
relevant authority to the trial court. “Routine defects in the court’s
statement of reasons are easily prevented and corrected if called to the court’s
attention.” (Scott, supra, 9 Cal.4th at p. 353.) Accordingly, we conclude that
the People have waived the only issue they raise on appeal.
DISPOSITION
The judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
O’ROURKE, Acting P. J.
CASTILLO, J.
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