People v. Crowley CA2/6 ( 2024 )

Filed 5/14/24 P. v. Crowley CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B326406
(Super. Ct. No. 2008033525
Plaintiff and Respondent, (Ventura County)
v.
DANIEL CROWLEY,
Defendant and Appellant.
Daniel Crowley appeals from a Penal Code1 section 1172.1
resentencing. Appellant contends the trial court erred when it
failed to properly consider mitigating circumstances requiring it
to dismiss enhancements under section 1385. We disagree
because the court found dismissal would endanger public safety.
We will affirm.
1 All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December 22, 2009, a jury convicted appellant of four
counts of second degree robbery (§ 211) and found true two
allegations that appellant personally used a deadly and
dangerous weapon, i.e., a knife (§ 12022, subd. (b)(1)). Jury and
court findings also established that appellant had suffered three
prior convictions qualifying as both strikes and serious felony
prior convictions. (§§ 667, subds. (a)(1), (c)(1), (e)(2), 1170.12,
subds. (a)(2), (c)(2)).
On February 23, 2010, the trial court sentenced appellant
to a state prison term of 100 years to life, plus 16 years. As to the
indeterminate portion of the sentence, the court imposed terms of
25-years to life for each of the four robbery convictions. As to the
determinate portion, the court imposed three five-year terms for
each of the section 667, subdivision (a)(1) serious felony prior
enhancements, plus one year for the section 12022, subdivision
(b)(1) weapon enhancement. We affirmed the judgment. (People
v. Crowley (Apr. 19, 2011, B222972) [nonpub. opn.].)
In a February 18, 2021 letter, the Secretary of the
California Department of Corrections and Rehabilitation (CDCR)
recommended the trial court recall and resentence appellant
pursuant to former section 1170, subdivision (d)(1).2 After
holding a hearing, the court recalled appellant’s sentence. The
court struck two of the three strike priors. The court resentenced
appellant to a determinate term of 32 years: (1) the upper term
for the robbery in count 1, doubled pursuant to the remaining
2 Prior versions of the recall and resentencing provision
now in section 1172.1 once existed in former sections 1170,
subdivision (d)(1) and 1170.03. (Stats. 2021, ch. 719, §§ 2, 3.1;
Stats. 2021, ch. 695, § 5; Stats. 2022, ch. 58, § 9.)
2
strike, for a total of 10 years; (2) consecutive terms of two years
for each of the remaining three robbery counts; (3) five years for
each of the three section 667, subdivision (a) serious felony prior
enhancements; (4) one year for the section 12022, subdivision
(b)(1) weapon enhancement.3
In explaining its ruling, the court stated: “There are no
factors that would require the dismissal of any enhancement
under PC 1385. Doing so, in my view, would endanger public
safety—and the standard is different on public safety—and would
be contrary to the interest of justice. All told, with seven
separate strikes and a prior sentence of 116 years to life, my view
is that my reduction here today is generous to the defendant in
that . . . you get an out date, but still weighty enough to
reasonably punish him and protect the public.”
DISCUSSION
Appellant argues the trial court failed to properly consider
and “afford great weight” to three mitigating circumstances
supporting dismissal of enhancements. He contends that section
1385 creates a presumption in favor of dismissal if statutory
mitigating circumstances are present and that presumption is
overcome only by evidence that dismissal would endanger public
safety. He is mistaken.
Section 1385 enables trial courts to dismiss enhancements
in furtherance of justice. (§ 1385, subds. (a), (b), (c)(1).) Effective
January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.)
amended section 1385 to specify mitigating circumstances for the
3 The information also included allegations under section
667.5, subdivisions (a) and (b). We do not discuss those
allegations further because they did not increase the duration of
either appellant’s original or revised sentence.
3
court to consider in deciding whether to strike an enhancement in
the furtherance of justice and directs that “[p]roof of the presence
of one or more of these [mitigating] circumstances weighs greatly
in favor of dismiss[al].” (§ 1385, subd. (c)(2); See People v.
Lipscomb (2022) 87 Cal.App.5th 9, 16.) But the court need not
afford great weight or even consider the listed mitigating
circumstances if it finds “dismissal of the enhancement would
endanger public safety.” (§ 1385, subd. (c)(2).) In assessing
whether public safety would be endangered if an enhancement is
dismissed, the court is not required “to consider any particular
factors.” (People v. Mendoza (2023) 88 Cal.App.5th 287, 299; §
1385, subd. (c)(2).) It is therefore irrelevant whether the court
afforded great weight to any mitigating circumstance under
section 1385. Thus even if section 1385 “erects a presumption in
favor of the dismissal of the enhancement” that presumption is
overcome when the “court finds that the dismissal would
‘endanger public safety’ . . . .” (People v. Walker (2022) 86
Cal.App.5th 386, 398-399, review granted Mar. 22, 2023,
S278309.)
Appellant appears to argue that the court erred by failing
to give his evidence of rehabilitation great weight, or, at
minimum, appropriate weight in reaching its decision that
dismissal of enhancements would be contrary to the interest of
justice and would endanger public safety. That argument
amounts to a claim the court abused its discretion. When, “‘as
here, a discretionary power is statutorily vested in the trial court,
its exercise of that discretion “must not be disturbed on appeal
except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in
4
a manifest miscarriage of justice.”’” (People v. Jefferson (2016)
1 Cal.App.5th 235, 242-243.)
The trial court did not abuse its discretion. Appellant has a
commendable record of rehabilitation, including a disciplinary
record devoid of rules violations reports, low risk assessment
scores, a strong history of rehabilitative programming, and a
sentencing referral from the CDCR Secretary. However, success
within the confines of prison structure does not guarantee
abstention from conduct endangering public safety once released.
The jury convicted appellant of four robbery counts and found
true two allegations he personally used a knife. Including his
prior criminal history, appellant has sustained convictions for
seven offenses that qualify as strikes. Given appellant’s
misconduct when at liberty, the trial court did not act arbitrarily,
capriciously, or in a patently absurd manner in refusing to
dismiss enhancements.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
5
David M. Hirsch, Judge
Superior Court County of Ventura
______________________________
Three Strikes Project, Milena Blake, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Viet H. Nguyen, Deputy Attorney General, for
Plaintiff and Respondent.
6