People v. Weathers CA3 ( 2023 )


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  • Filed 12/19/23 P. v. Weathers CA3
    NOT TO BE PUBLISHED
    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 This opinion has not been certified for publication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
    THIRD APPELLATE DISTRICT
    (Yolo)
    ----
    THE PEOPLE,                                                                              C098189
    Plaintiff and Respondent,                                 (Super. Ct. No. CR-2014-3141)
    v.
    DAVEON TARIQ WEATHERS,
    Defendant and Appellant.
    A jury found defendant Daveon Tariq Weathers guilty of first degree robbery.
    Defendant appealed, and this court remanded the case for the trial court to consider
    dismissing a 10-year enhancement to his prison sentence imposed for personally using a
    firearm to commit the robbery (Pen. Code, § 12022.53, subd. (b)).1 The trial court
    declined to do so.
    1        Undesignated statutory references are to the Penal Code.
    1
    Defendant now contends the trial court improperly weighed evidence of his
    traumatic childhood and was unaware of its discretion to impose a lesser enhancement.
    We conclude the trial court did not afford insufficient weight to evidence of defendant’s
    traumatic childhood, especially because it found dismissing the enhancement would
    endanger public safety. We also conclude the trial court was aware of its discretion to
    impose a lesser enhancement. Accordingly, we will affirm the judgment.
    BACKGROUND
    “Defendant robbed a cabdriver at gunpoint. A jury found defendant guilty of first
    degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)), and found true a personal use of a
    firearm enhancement (§ 12022.53, subd. (b)). The trial court sentenced defendant to an
    aggregate term of 14 years imprisonment,” including a 10-year term for the firearm
    enhancement. (People v. Weathers (May 10, 2021, C079704) [nonpub. opn.] (fn.
    omitted).) Defendant appealed from the judgment and this court remanded the matter
    “for the trial court to consider whether to exercise its discretion to strike or dismiss the
    section 12022.53, subdivision (b), enhancement in the interest of justice under section
    1385, subdivision (a).” (Weathers, C079704.) In all other respects, we affirmed the
    judgment. (Ibid.)
    On remand, defendant argued the trial court should strike or dismiss the firearm
    enhancement and resentence him to a shorter prison term because he experienced
    childhood trauma, which new legislation established as a mitigating factor (see §§ 1170,
    subd. (b)(6), 1385, subd. (c)(2)(E)). In a supplemental brief, and again in closing
    argument at the hearing, defendant informed the trial court that, if it struck the firearm
    enhancement, it had discretion to impose an uncharged, lesser-included firearm
    enhancement under section 12022.5, pursuant to this court’s decision in People v.
    Johnson (2022) 
    83 Cal.App.5th 1074
     (Johnson). Nevertheless, defendant “[stood] by his
    original request to have the court strike the [section] 12022.53 enhancement without
    imposing the lesser enhancement.”
    2
    The trial court declined to strike or dismiss the firearm enhancement after
    considering defendant’s childhood experience, finding that defendant’s repeated use of a
    gun and his escalating violent behavior in prison meant defendant “would pose a threat to
    the public safety” if released early. Defendant timely appealed the court’s order.
    DISCUSSION
    Defendant contends we must remand for the trial court to again consider striking
    or dismissing the firearm enhancement because: (1) the trial court failed to afford
    sufficient weight to defendant’s childhood trauma pursuant to section 1385,
    subdivision (c)(2) and (2) the trial court was not aware of its discretion to strike the
    section 12022.53 enhancement and impose a section 12022.5 enhancement instead, as
    described in Johnson, supra, 83 Cal.App.5th at pp. 1086-1093. We see no merit in either
    contention.
    We review the trial court’s refusal to dismiss an enhancement under section 1385
    for abuse of discretion, which in this case depends on the scope of that discretion under
    the statute, a question of statutory interpretation that we review de novo. (Nazir v.
    Superior Court (2022) 
    79 Cal.App.5th 478
    , 490.) “A trial court may abuse its discretion
    where ‘its decision is so irrational or arbitrary that no reasonable person could agree with
    it,’ ‘where the trial court was not “aware of its discretion” ’ to dismiss a sentencing
    allegation under section 1385, or ‘where the court considered impermissible factors in
    declining to dismiss.’ ” (Ibid.)
    I
    Affording Great Weight to Childhood Trauma
    Defendant contends the trial court erred because, “[a]lthough the court ultimately
    found that dismissal of the enhancement would ‘endanger public safety,’ the court
    reached this conclusion without first presuming that dismissal of the section
    12022.53[, subdivision] (b) enhancement was in the interest of justice.” Defendant cites
    3
    People v. Walker (2022) 
    86 Cal.App.5th 386
    , 398-400 (Walker), but he misunderstands
    the case and section 1385.
    In Walker, the defendant asked the trial court to strike a five-year prior serious
    felony enhancement because the court had imposed more than one enhancement, a
    mitigating circumstance listed in section 1385, subdivision (c)(2)(B). (Walker, supra,
    86 Cal.App.5th at pp. 393-394.) The appellate court interpreted section 1385,
    subdivision (c), which “instructs that the existence of a mitigating
    circumstance . . . ‘weighs greatly in favor of dismiss[al]’ of an enhancement as the court
    is exercising its discretion under section 1385 to evaluate whether dismissal is in the
    furtherance of justice by weighing enumerated and unenumerated mitigating factors
    against whether dismissal of an enhancement would ‘endanger public safety.’ ” (Walker,
    at p. 397.) The court concluded that, “[c]ollectively, these provisions dictate that trial
    courts are to rebuttably presume that dismissal of an enhancement is in the furtherance of
    justice (and that its dismissal is required) unless the court makes a finding that the
    resultingly shorter sentence due to dismissal ‘would endanger public safety.’ ” (Id. at
    p. 398.) Despite applying this presumption, the court affirmed the trial court’s refusal to
    dismiss the enhancement, because the trial court had found “that defendant posed a
    ‘public safety danger,’ ” “engaged in conduct comprised of ‘uncivilized violent,
    absolutely unjustified behavior,’ ” and “it was not in the ‘interest of justice’ to dismiss
    either enhancement and thereby allow defendant to be released into the community any
    sooner.” (Id. at pp. 393-394, 401.)
    Other courts have disagreed with the Walker court’s interpretation of section 1385,
    subdivision (c) that evidence of mitigating circumstances creates a rebuttable
    presumption that the court should dismiss an enhancement. (See, e.g., People v.
    Lipscomb (2022) 
    87 Cal.App.5th 9
    , 17-21.) We need not decide this issue here, as
    defendant’s argument fails even using the heightened standard from Walker. Walker held
    that trial courts need not make any presumption based on mitigating circumstances if “the
    4
    court makes a finding that the resultingly shorter sentence due to dismissal ‘would
    endanger public safety.’ ” (Walker, supra, 86 Cal.App.5th at p. 398.)
    Here, like in Walker, the trial court made such a finding. Specifically, the court
    found that defendant’s repeated use of a gun and his escalating violent behavior in prison
    meant defendant “would pose a threat to the public safety” if released early. Defendant
    does not challenge that finding. When “the court finds that dismissal of the enhancement
    would endanger public safety,” then proof of the listed mitigating circumstances does not
    “weigh[] greatly in favor of dismissing the enhancement.” (§ 1385, subd. (c)(2).)
    Therefore, even if the trial court did not afford great weight to evidence of defendant’s
    childhood trauma, it still complied with the statute.
    But, in any event, the trial court did appear to afford significant weight to
    defendant’s evidence. For example, the trial court was impressed by the testimony of
    defendant’s witnesses and was unmoved by the prosecution’s argument that defendant
    failed to show any connection between the current offense and the childhood trauma, as
    required by section 1385, subdivision (c)(2)(E). Nevertheless, the court found
    defendant’s “atrocious” behavior outweighed his unpleasant childhood. Accordingly, we
    conclude the trial court did not abuse its discretion by affording insufficient weight to
    evidence of defendant’s traumatic childhood.
    II
    Discretion to Impose a Lesser Enhancement
    Defendant also contends we should remand because the trial court was unaware of
    its discretion to strike the section 12022.53, subdivision (b) enhancement and impose a
    lesser section 12022.5 enhancement instead, as described in Johnson,
    supra, 83 Cal.App.5th at pp. 1086-1093. We disagree.
    Johnson held that “the trial court has discretion to substitute an uncharged lesser
    enhancement for a stricken section 12022.53[, subdivision] (b) enhancement.” (Johnson,
    supra, 83 Cal.App.5th at p. 1093.) The trial court in this case was aware of that
    5
    discretion because defendant repeatedly brought the Johnson opinion to the court’s
    attention. The court mentioned the Johnson decision at the hearing while explaining its
    decision. Nevertheless, defendant contends “the record does not reflect whether the court
    considered replacing the section 12022.53[, subdivision] (b) enhancement with a lesser
    term under section 12022.5, subdivision (a),” implying the court was therefore unaware
    of its discretion.
    Defendant’s argument fails for three reasons. First, a lack of consideration on the
    record is not enough to establish a lack of awareness: “In the absence of evidence to the
    contrary, we presume that the court ‘knows and applies the correct statutory and case
    law.’ ” (People v. Thomas (2011) 
    52 Cal.4th 336
    , 361; see Evid. Code, § 664.) Second,
    defendant never asked the trial court to exercise its discretion to impose a lesser
    enhancement, instead explicitly disavowing such a request. We cannot fault the trial
    court for not explicitly considering relief that defendant did not seek. Finally, by
    declining to strike the section 12022.53, subdivision (b) enhancement, the trial court
    eliminated any possibility of imposing a lesser enhancement instead. Rather than
    demonstrating a lack of awareness, this demonstrates further discussion of a lesser
    enhancement was superfluous. Accordingly, we conclude the trial court was aware of its
    discretion under Johnson.
    6
    DISPOSITION
    The judgment is affirmed.
    \s\     ,
    Krause, J.
    We concur:
    \s\            ,
    Robie, Acting P. J.
    \s\           ,
    Boulware Eurie, J.
    7
    

Document Info

Docket Number: C098189

Filed Date: 12/19/2023

Precedential Status: Non-Precedential

Modified Date: 12/19/2023