People v. Robbins CA4/1 ( 2024 )

Filed 6/17/24 P. v. Robbins 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, D081683
Plaintiff and Respondent,
v. (Super. Ct. No. SCD252366)
DONAVAN ROBBINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert F. O’Neill, Judge. Affirmed.
Eric Multhaup, 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, A.
Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff
and Respondent.
Donavan Robbins appeals the judgment resentencing him to a shorter
prison term after the trial court recalled the sentence upon request by the
Secretary of the Department of Corrections and Rehabilitation (the
Secretary). He contends the court erred in refusing to reduce the prison term
even more by using an incorrect legal standard to find that further reduction
would pose an unreasonable risk of danger to public safety. We affirm.
I.
BACKGROUND
A. Current Convictions
A jury found Robbins guilty of eight counts of robbery (Pen. Code,
§ 211; subsequent section references are to this code), three counts of
attempted robbery (§§ 21a, 211), and one count of burglary (§ 459), and found
true firearm enhancement allegations attached to the robbery and attempted
robbery counts (§ 12022.53, subd. (b)). Robbins admitted allegations he had
served a prior prison term (former § 667.5, subd. (b)) and had a prior robbery
conviction that constituted a serious felony for purposes of a five-year
enhancement (§ 667, subd. (a)(1)) and a strike for purpose of the Three
Strikes law (§ 667, subds. (b)–(i), 1170.12). On October 16, 2015, the trial
court denied Robbins’s motion to dismiss the allegation of the prior strike
conviction and sentenced Robbins as a second-strike offender to an aggregate
prison term of 41 years eight months. The term included a total of 20 years
in firearm enhancements and five years for the prior serious felony conviction
that Robbins admitted. This court affirmed the judgment. (People v. Robbins
(Aug. 5, 2016, D069077) [nonpub. opn.].)
B. Recommendation for Recall and Resentencing
By letter dated August 10, 2022, the Secretary invoked section 1172.1
to recommended the trial court recall and resentence Robbins based on an
amendment to the firearm enhancement statute that took effect in 2018 and
authorized courts to strike or dismiss enhancements whose imposition
2
previously had been mandatory (§ 12022.53, subd. (h), as amended by Stats.
2017, ch, 682, § 2).1 The Secretary enclosed with her letter a cumulative case
summary that described Robbins’s current and prior crimes; noted he was
classified as the lowest-level security risk and had no disciplinary rules
violations; and listed the educational and other self-improvement programs
he completed during his incarceration.
C. Trial Court’s Response
In response to the Secretary’s letter, the trial court appointed counsel
for Robbins. Counsel filed a brief in which she argued Robbins’s reform
during his time in prison showed he was not an “unreasonable risk of danger
to public safety,” i.e., he was not at risk of committing “a new ‘super strike,’ ”
so that there was a presumption in favor of recall and resentencing.2
1 Under section 1172.1, subdivision (a)(1), the trial court “may, . . . at any
time upon recommendation by the [S]ecretary . . . , recall the sentence and
commitment previously ordered and resentence the defendant in the same
manner as if [the defendant] had not previously been sentenced, whether or
not the defendant is still in custody, and provided the new sentence, if any, is
no greater than the initial sentence.” When recalling and resentencing a
defendant, the court “shall apply the sentencing rules of the Judicial Council
and apply any changes in law that reduce sentences or provide for judicial
discretion so as to eliminate disparity of sentences and to promote uniformity
of sentencing.” (Id., subd. (a)(2).)
2 If the Secretary requests recall and resentencing, “[t]here shall be a
presumption favoring recall and resentencing of the defendant, which may
only be overcome if a court finds the defendant currently poses an
unreasonable risk of danger to public safety, as defined in subdivision (c) of
Section 1170.18.” (§ 1172.1, subd. (b)(2).) Section 1170.18, subdivision (c)
defines “ ‘unreasonable risk of danger to public safety’ ” as an unreasonable
risk the person will commit a violent sex offense, homicide offense, or another
one of the felonies listed in section 667, subdivision (e)(2)(C)(iv), which are
“known colloquially as ‘super strikes’ ” (People v. Valencia (2017) 3 Cal.5th
347, 351).
3
Counsel urged the court to use its discretion under section 1385, subdivision
(c) to strike the firearm enhancements, which had added 20 years to his
aggregate prison term, and the five-year enhancement for the prior serious
felony conviction.3 In opposition, the People argued the court should not
recall and resentence because Robbins’s history of violent crimes involving
firearms and limited rehabilitative programming in prison made him an
unreasonable risk of danger to public safety. The People alternatively argued
that if the court decided to recall and resentence, it should dismiss the five-
year enhancement for the prior serious felony conviction but none of the
firearm enhancements, because dismissal of those enhancements would
endanger public safety.
At the hearing on the Secretary’s recommendation, the trial court
stated that it had read the parties’ briefs and the court file and that it had
presided at Robbins’s trial and sentencing, at which it could have sentenced
Robbins to prison for more than 80 years but chose to sentence him to 41
years eight months. The court identified the “simple decision [it] ha[d] to
3 Section 1385, subdivision (c)(1) states: “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.” “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. Proof of the presence of one or more of
these circumstances weighs greatly in favor of dismissing the enhancement,
unless the court finds that dismissal of the enhancement 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
danger to others.” (Id., subd. (c)(2).) The “mitigating circumstances” include
allegation of multiple enhancements in a single case, application of an
enhancement resulting in a prison term longer than 20 years, and an
enhancement based on a prior conviction older than five years. (Id., subd.
(c)(2)(B), (C), (H).)
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make” as “whether Mr. Robbins poses an unreasonable risk of danger to
public safety as defined by Penal Code [s]ection 1170.18[, subdivision ](c).”
The court went on to state that “[p]art of the argument of the defense in this
case is that the [c]ourt should exercise its discretion under Penal Code
[s]ection 1385[, subdivision ](c)(2)([C]))” to dismiss firearm enhancements,
and in exercising that discretion “the issue before the [c]ourt” was whether
“dismissal of the enhancements, as requested by [Robbins’s counsel], would
endanger public safety.” The court noted dismissal was not mandatory were
it to find dismissal would endanger public safety.
After identifying the issues to be decided, the trial court described
Robbins’s current and prior convictions. The current convictions involved
using a firearm, threatening victims, and forcing them into walk-in freezers
at restaurants, so that Robbins could steal money and other property. His
prior convictions included a very similar armed robbery for which he had
been granted probation but ended up going to prison for four years after he
violated the terms of probation. After Robbins got out of prison, he
participated in a rent skimming scheme to which he pled guilty and was
granted probation. While he was on probation for that conviction, he
committed the robberies and other offenses for which he is currently in
prison.
When the trial court finished summarizing Robbins’s criminal history,
it cited section 1172.1, subdivision (b)(2), and noted the presumption in favor
of resentencing when recommended by the Secretary could only be overcome
if the court found Robbins to be an unreasonable risk of danger to public
safety, which the court defined as “an unreasonable risk that [he] will commit
a new felony offense.” The court identified factors relevant to that
determination, including Robbins’s criminal history, which it had already
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described, and his “disciplinary record and record of rehabilitation while
incarcerated,” which the court considered favorable to Robbins. The court
then invited the prosecutor to comment.
The prosecutor acknowledged Robbins “has been a model prisoner,” but
argued his good behavior in prison did not warrant reduction of the prison
sentence. The prosecutor argued that based on Robbins’s recidivism, the
number and nature of his current convictions, and the maximum prison term
he could have received, the prison term of 41 years eight months remained
appropriate.
Robbins’s counsel responded that his criminal history alone was
insufficient to show Robbins remained an unreasonable risk of danger to
public safety, as required to overcome the presumption in favor of
resentencing. Counsel contended Robbins’s lack of disciplinary rules
violations, educational and other improvements while in prison, family
support, and plan for reentry into the community showed Robbins was no
longer a risk to public safety and should be resentenced as recommended by
the Secretary.
Next, Robbins and his daughter gave brief statements in support of
recall and resentencing.
The trial court then announced its decision. It again noted the
“presumption in favor of resentencing upon [the Secretary’s] recommendation
which can only be overcome if the [c]ourt finds an inmate is an unreasonable
risk of danger to the public safety.” The court expressed “no doubt” that
Robbins “has taken some positive steps” while in prison, but concluded that
behavior “bears little to no significance in determining the threat he poses
when in public.” Rather, the court concluded, Robbins’s past behavior of
committing multiple armed robberies was “a pretty good predictor” of what
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he “would be doing if he was out on the street.” The court found Robbins
posed “an unreasonable risk of danger to the public safety under the meaning
of Penal Code section 1170.18. Robberies with firearms and repeated
robberies are indicative of unreasonable risk of danger to public safety.” The
court struck the five-year enhancement for the prior serious felony conviction
but otherwise imposed the same prison term on each conviction and
enhancement it had imposed in 2015, so that Robbins was resentenced to
prison for an aggregate term 36 years eight months.
II.
DISCUSSION
A. Parties’ Contentions
Robbins contends the trial court prejudicially erred by applying an
overly expansive definition of “unreasonable risk of danger to public safety”
to overcome the presumption in favor of resentencing and to refuse to dismiss
the firearm enhancements as recommended by the Secretary. He argues
“[t]he court failed to recognize that the statutory requirement as to the risk of
danger was ‘narrowly confined to the likelihood that the defendant will
commit a limited subset of violent felony,’ i.e., super strikes.” Instead,
Robbins contends, “[t]he court mistakenly believed that the presumption
favoring resentencing would be overcome if there was an unreasonable risk
that [Robbins] would commit ‘a new felony offense’ of any type.” He further
contends there is no evidence in the record to support a finding that he is
likely to commit a super strike, but there is “extensive evidence that
mitigated against [such a] finding.” Robbins asks us to reverse the judgment
and to remand the matter for resentencing.
The People contend that by failing to raise in the trial court the claim
that the court applied the wrong legal standard in declining to dismiss the
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firearm enhancements, Robbins forfeited the claim on appeal. On the merits,
the People contend the court properly applied the presumption under section
1172.1, subdivision (b)(2) by recalling Robbins’s sentence and reducing the
prison term by five years, and also properly declined to strike the firearm
enhancements under section 1385, subdivision (c)(2) on the ground that to do
so would endanger public safety. They ask us to affirm the judgment.
B. Standard of Review
Our interpretation of the provisions of section 1172.1 and other
statutes is de novo. (John v. Superior Court (2016) 63 Cal.4th 91, 95; People
v. E.M. (2022) 85 Cal.App.5th 1075, 1082.) We review the trial court’s
discretionary resentencing decisions, including those on enhancements, for
abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373–374;
People v. Frazier (2020) 55 Cal.App.5th 858, 863; People v. Pearson (2019) 38
Cal.App.5th 112, 116.) A court abuses its discretion when it (1) applies the
wrong legal standard, (2) bases its decision on express or implied factual
findings unsupported by substantial evidence, or (3) applies the correct legal
standard to the facts in a way that is so irrational or arbitrary that no
reasonable person could agree with it. (Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 711–712 (Haraguchi); People v. Doron (2023) 95 Cal.App.5th
1, 9; Wade v. Superior Court (2019) 33 Cal.App.5th 694, 708–709.)
C. Analysis
Robbins did not forfeit the claim of error that in resentencing him the
trial court employed the wrong legal standard for determining whether he
“currently pose[d] an unreasonable risk of danger to public safety.” (§ 1172.1,
subd. (b)(2); see § 1170.18, subd. (c) [defining “ ‘unreasonable risk of danger to
public safety’ ”].) In his brief and at the hearing in the trial court, Robbins
argued, based on his in-prison rehabilitation and case law applying the
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“unreasonable risk of danger to public safety” standard, that he currently
posed no risk of committing a super strike and therefore should be
resentenced to a prison term that did not include firearm enhancements, as
suggested by the Secretary in her letter recommending recall and
resentencing. That argument was sufficient to preserve for appeal the claim
that the trial court erred by finding he posed such a risk and not following
the Secretary’s recommendation.
Although Robbins did not forfeit the claim of error, he has shown no
prejudicial error in the trial court’s application of the presumption in favor of
recall and resentencing upon recommendation by the Secretary. As we stated
earlier, the presumption applies unless the court finds the defendant would
pose an unreasonable risk of committing a super strike if resentenced. (See
fn. 2, ante.) Despite the trial court’s explicit finding that Robbins posed such
a risk, “[t]he court in this case in fact recalled [his] sentence and resentenced
him.” (People v. Braggs (2022) 85 Cal.App.5th 809, 819.) The court did not
strike the firearm enhancements mentioned in the Secretary’s letter, but
“nothing in . . . section 1172.1 provides for a presumption in favor of the
Secretary’s particular recommended sentence.” (Braggs, at p. 819.) Rather,
“[t]he Legislature’s intent was . . . to ‘ensure’ that the Secretary’s referral was
given ‘court[ ] consideration,’ meaning by ‘providing the opportunity for
resentencing.’ [Citation.] [Robbins] was given such consideration by the
court, including the opportunity for resentencing. Indeed, he was actually
resentenced although not to the same extent as addressed in the Secretary’s
letter.” (Ibid.) “Accordingly, we conclude [Robbins] fails to demonstrate
prejudicial error by the trial court’s purported failure to properly apply the
presumption in favor of recall and resentencing under [section 1172.1].”
(Braggs, at p. 820.)
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Robbins nevertheless argues we must remand for resentencing because
the trial court’s error in finding he posed an unreasonable risk of danger to
public safety affected its discretionary resentencing decisions. Specifically,
he contends that based on that error “the trial court refused to consider
resentencing [him] in the manner urged by [his] counsel, i.e., striking 20
years’ worth of firearm use enhancements.” We are not persuaded. Although
the trial court expressly found dismissal of the enhancements was “not in the
public interest” because Robbins’s criminal history made him “an
unreasonable risk of danger to the public safety under the meaning of Penal
Code [s]ection 1170.18” (italics added), the court’s rulings and the entirety of
its comments at the hearing indicate that finding was a “slip of the tongue
that did not reflect [the court’s] actual conclusions and reasoning” (People v.
Tessman (2014) 223 Cal.App.4th 1293, 1304). As we shall explain, the court
mistakenly cited section 1170.18 when it should have cited section 1385,
subdivision (c)(2) as the basis for its decision not to dismiss the firearm
enhancements.
One indication the trial court misspoke in stating its decision is that it
actually recalled Robbins’s sentence and resentenced him to a shorter prison
term. The court would not have done so had it found Robbins posed an
unreasonable risk of committing a super strike, which would have justified
denial of recall and resentencing. (See § 1172.1, subd. (b)(2).) Another
indication the court misspoke is that it noted during the hearing that Robbins
had asked it to exercise its discretion under section 1385, subdivision (c)(2) to
dismiss the firearm enhancements. The court stated: “[T]he issue is whether
the [c]ourt finds . . . dismissal of the enhancements, as requested by
[Robbins’s counsel], would endanger public safety.” The court was thus
aware that in resentencing it had discretion to dismiss the firearm
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enhancements but was not required to do so if dismissal “would endanger
public safety.” (§ 1385, subd. (c)(2); see § 1172.1, subd. (a) [resentencing court
applies changes in law that provide for judicial discretion and resentences
defendant as if he had not been sentenced]; People v. Cota (2023) 97
Cal.App.5th 318, 337 [§ 1385, subd. (c)(2)(B) does not require dismissal of
enhancement when it would endanger public safety]; People v. Mendoza
(2023) 88 Cal.App.5th 287, 291 (Mendoza) [same as to § 1385, subd.
(c)(2)(C)].) In declining to dismiss the enhancements, the court explained
that despite good behavior in prison, Robbins’s multiple armed robbery
convictions, poor performance on probation, and recidivism were “indicative
of unreasonable risk of danger to public safety.” Although the court
mistakenly used the language of section 1170.18, subdivision (c) to articulate
its conclusion, its explanation sufficed to show dismissal of the enhancements
“would endanger public safety” within the meaning of section 1385,
subdivision (c)(2), i.e., “there is a likelihood that dismissal of the
enhancements . . . would result in physical injury or other serious danger to
others.” (See People v. Cruz-Partida (2022) 79 Cal.App.5th 197, 210, fn. 12
[“even if the trial court misspoke or was confused, ‘ “we review the ruling, not
the court’s reasoning, and, if the ruling was correct on any ground, we
affirm” ’ ”]; cf. Mendoza, at p. 299 [refusal to dismiss firearm enhancement
was not abuse of discretion when defendant discharged firearm during
robbery].) The record thus shows the trial court understood and applied the
correct legal standard on whether to dismiss the firearm enhancements.
A different conclusion is not required by the cases on which Robbins
relies. Those cases concerned application of the definition of “unreasonable
risk of danger to public safety” in section 1170.18, subdivision (c) to requests
for compassionate release under section 1172.2 or mental health diversion
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under section 1001.36. (See Nijmeddin v. Superior Court (2023) 90
Cal.App.5th 77 [abuse of discretion to deny compassionate release when trial
court made no finding of unreasonable risk defendant would commit super
strike if released]; People v. Williams (2021) 63 Cal.App.5th 990 [abuse of
discretion to deny mental health diversion when defendant was not
reasonably likely to commit super strike if diverted]; People v. Moine (2021)
62 Cal.App.5th 440 [same].) No such request is at issue in this case.
Moreover, as we have explained, the trial court did not deny recall and
resentencing on the ground Robbins was likely to commit a super strike if
resentenced. It recalled his sentence and resentenced him to a shorter prison
term, though not so short as the Secretary had recommended and his counsel
had requested. The court refused to dismiss Robbins’s firearm enhancements
because it found dismissal “would endanger public safety.” (§ 1385, subd.
(c)(2).) The cases Robbins cites do not address that discretionary decision.
In sum, we conclude Robbins has not shown that the trial court applied
the wrong legal standard in declining to dismiss his firearm enhancements,
that substantial evidence does not support its decision, or that the decision is
arbitrary or capricious. He has established no abuse of discretion that would
require reversal of the judgment. (See Haraguchi, supra, 43 Cal.4th at pp.
711–712; Mendoza, supra, 88 Cal.App.5th at pp. 298–299.)
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III.
DISPOSITION
The judgment is affirmed.
IRION, Acting P. J.
WE CONCUR:
BUCHANAN, J.
KELETY, J.
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