People v. Green CA2/4 ( 2024 )

Filed 10/21/24 P. v. Green CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B332107
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA069734
v.
BROUNCHE STEPHAN
GREEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Tomson T. Ong, Judge. Affirmed.
Laini Millar Melnick, under appointment by the Court of
Appeal, 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 and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2006, a jury convicted defendant and appellant
Brounche Stephen Green of five felonies arising from acts of
domestic violence and witness dissuasion directed at his pregnant
girlfriend and her children. Because Green had sustained two
prior strike convictions for shooting into an inhabited dwelling
and robbery, the trial court sentenced him under the Three
Strikes law. The court also imposed three one-year prior prison
term enhancements.
In 2023, the trial court resentenced Green under Penal
Code section 1172.75 by striking the three prior prison term
enhancements.1 The court denied Green’s Romero2 motion and
reimposed his remaining sentence of 75 years to life in state
prison. On appeal, Green argues the trial court abused its
discretion by denying his Romero motion. He also contends the
court was required to dismiss at least one prior strike in light of
Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch, 721,
§ 1). We reject these arguments and affirm the judgment.
PROCEDURAL BACKGROUND
In 2006, a jury convicted Green of inflicting corporal injury
on a spouse/cohabitant (§ 273.5, subd. (a)); assault with a deadly
weapon or instrument (§ 245, subd. (a)(1)); making criminal
1 All undesignated statutory references are to the Penal
Code. Effective June 30, 2022, the Legislature renumbered
section 1171.1 to section 1172.75. (Stats. 2022, ch. 58, § 12.)
There were no substantive changes to the statute. Section
1172.75 renders legally invalid most previously imposed one-year
prior prison term enhancements. (See § 1172.75, subd. (a).)
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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threats (§ 422); dissuading a witness from reporting a crime
(§ 136.1, subd. (b)(1)); and false imprisonment (§ 236). The jury
also found Green sustained two prior strike convictions and found
three prior prison term allegations true. (§§ 1170.12, subds. (a)-
(d), 667, subds. (b)-(i); 667.5, subd. (b).)
Under the Three Strikes law, the trial court sentenced
Green to five consecutive sentences of 25 years to life (125 years
to life total), plus three one-year prior prison term enhancements,
after which a different panel of this court stayed two of the five
life terms, reducing Green’s sentence to 75 years to life plus the
three one-year enhancements. In 2023, the trial court struck the
three one-year enhancements under section 1172.75, and
reimposed the remaining sentence of 75 years to life. The 75
years to life sentence the court reimposed consisted of three
consecutive terms of 25 years to life for the following three
convictions: corporal injury to a spouse/cohabitant; making
criminal threats; and dissuading a witness from testifying.
Green timely appealed.
FACTUAL BACKGROUND
We take judicial notice of our opinion, written by a different
panel of this court, resolving Green’s direct appeal. (People v.
Green (Jan. 23, 2008, B194137) [nonpub. opn.] (Green I); Evid.
Code, § 452, subd. (a).) The following summary of the prosecution
evidence adduced at Green’s trial is taken from Green I.
In December 2005, Green was living with Trisha Abdullah-
Raheem and her three sons, who were ten, seven, and four years
old. On December 26, 2005, Green and Abdullah-Raheem argued
for hours. Among other things, Green had accused Abdullah-
Raheem of cheating on him. At various times during the day,
Green physically threatened Abdullah-Raheem, including telling
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her that he intended to kill her. He also told her to shut the
children up, or he would shut them up. At one point, when
Abdullah-Raheem was in the kitchen with a knife, Green
violently assaulted her, took the knife from her, and threw it,
almost hitting one of the children. Abdullah-Raheem was five
months pregnant at the time. (Green I, supra, B194137.)
When Abdullah-Raheem tried to leave the apartment with
the children, Green told her he would kill her if she left. Green
grabbed her by her hair, threw her against the wall, then threw
her to the floor where he started to choke her. Abdullah-Raheem
lost consciousness. After Abdullah-Raheem regained
consciousness, one of her children ran outside to try to get help.
Green ran after him, brought him back into the apartment, and
locked the door. Green took Abdullah-Raheem to the bathroom,
ran water over her face, and again told her he would kill her if
she left. (Green I, supra, B194137.)
Eventually, Abdullah-Raheem convinced Green to lie down
to watch a movie, and he fell asleep. Abdullah-Raheem’s mother
called her, and her mother called the police. Abdullah-Raheem
and her boys left the apartment. Police took Abdullah-Raheem to
the hospital because she was having contractions and her face
was swollen. (Green I, supra, B194137.)
Afterward, Abdullah-Raheem moved out of state. In
January 2006, Green called her, told her she did not have to
testify against him, and asked her not to. Later, a friend of
Green’s called Abdullah-Raheem and said essentially the same
thing. (Green I, supra, B194137.)
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DISCUSSION
I. The trial court did not abuse its discretion in
denying Green’s Romero motion
On appeal, Green argues the trial court erred by denying
his Romero motion and declining to strike one of his strike priors.
For the reasons discussed below, we reject this contention.
A. Relevant Proceedings
As noted above, in 2023, the trial court resentenced Green
under section 1172.75 because his original sentence included
three one-year prior prison term enhancements. Before denying
Green’s Romero motion, the court stated it had considered
approximately 4,000 pages of information provided by the
California Department of Corrections, Green’s letter to the court,
and Green’s motion for resentencing under section 1172.75.
Defense counsel added Green had tried to reform himself and
hoped to reenter society.
The court stated Green had a “very checkered history in his
prison record.” In 2016, he twice refused to provide a urine
sample for drug testing and also tested positive for a controlled
substance. Also in 2016, Green blind-sided and assaulted another
inmate in the kitchen, beating him until he was unconscious. In
2017, Green possessed a cellular phone. Regarding Green’s
convictions, the court noted the offenses were serious or violent
felonies; the victim had suffered traumatic injury; and Green had
tried to dissuade the victim from reporting the assault. Green
was convicted of felonies in 1993, 1994, 1996, and 2002. The court
also noted Green went to prison in 1994, 1996, and 2002; and the
(then) current offenses occurred in 2005. The court found Green
posed a danger to the community as shown by the prison assault
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in 2016. The court noted its view that Green had not changed
because in 2005 Green choked Abdullah-Raheem until she lost
consciousness, then in 2016 Green beat his fellow inmate until he
lost consciousness. Having concluded Green’s criminal record and
the violent nature of his offenses made him a danger to society,
the trial court denied Green’s Romero motion.
B. Applicable Legal Principles
A trial court must make its decision to strike or not strike a
prior conviction by considering factors that are intrinsic to the
Three Strike law’s sentencing scheme. (People v. Williams (1998)
17 Cal.4th 148, 161 (Williams).) The factors a trial court must
consider include: (1) the nature and circumstances of the current
conviction; (2) the nature and circumstances of the prior strike
convictions; and (3) the defendant’s “background, character, and
prospects[.]” (Ibid.) If the defendant falls outside the spirit of the
Three Strikes law, the court may, in furtherance of justice, treat
the defendant “as though he had not previously been convicted of
one or more serious and/or violent felonies.” (Ibid.; see also
Romero, supra, 13 Cal.4th at pp. 529-530; § 1385, subd. (a).) We
review a trial court’s denial of a Romero motion for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373.) “[A]
trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.” (Id. at p. 377.)
C. Analysis
We reject Green’s argument that the denial of his Romero
motion was an abuse of discretion. The record does not suggest,
as Green contends, that the court was unaware of or disregarded
any relevant mitigating factors in making its ruling. Rather, the
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record shows the court appropriately balanced the relevant
factors. The court reasonably concluded that, in light of the
violent nature of Green’s offenses against Abdullah-Raheem and
her children, his other criminal history, which included beating
an inmate unconscious, and his character/prospects, which
included a troubling history of serious uncontrolled violence, he
posed a danger to society and thus fell within the spirit of the
Three Strikes law. (See Williams, supra, 17 Cal.4th at p. 161.)
Green summarizes his argument that the trial court
abused its discretion by denying his Romero motion as follows:
“[I]n looking at [Green’s] case as a whole, including the
circumstances surrounding both his prior and most recent
offenses, his age at the time of the first strike conviction, trauma
in his childhood, his minimal history of violations during his
sixteen year incarceration, with only one inciden[t] of violence,
eight years ago, and his record of self-improvement while
incarcerated, the court abused its discretion in not striking one of
the priors in furtherance of justice.” Although Green is correct
that his case involved various potential mitigating factors, this
does not render the trial court’s ruling arbitrary or irrational.
Rather, a review of the record demonstrates the court reached a
reasonable sentencing decision based on an analysis of relevant
factors and public safety concerns. These public safety concerns
were valid in light of the particularly violent and threatening
nature of Green’s offenses against his pregnant girlfriend and
cohabitant, her three small children, and his fellow inmate.
And to the extent Green suggests the trial court erred by
not explicitly discussing every potentially relevant factor in
denying the Romero motion, we are not persuaded. “While a court
must explain its reasons for striking a prior (§ 1385, subd. (a); see
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Romero, supra, 13 Cal.4th 497, 531), no similar requirement
applies when a court declines to strike a prior [citation].” (In re
Large (2007) 41 Cal.4th 538, 550.) “‘The absence of such a
requirement merely reflects the legislative presumption that a
court acts properly whenever it sentences a defendant in
accordance with the [T]hree [S]trikes law.’” (Ibid.)
For these reasons, the trial court’s denial of Green’s Romero
motion was not an abuse of discretion.
II. Senate Bill No. 81
Green next argues the trial court erred under Senate Bill
No. 81 (SB 81) by not dismissing one of his prior strikes. For the
reasons discussed below, we disagree.
Effective January 1, 2022, SB 81 amended section 1385,
subdivision (c)(2), which now requires sentencing courts to
“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 . . . .” (Italics
added.) Green argues the trial court erred by giving no apparent
weight to subdivision (c)(2)(C), which mandates enhancements
that could result in a sentence of over 20 years be dismissed (as
mentioned above, based on Green’s strikes, the trial court
imposed three consecutive sentences of 25 years to life in state
prison).
We are unpersuaded. The amended language of the statute
makes clear that it applies only to enhancements. Our Supreme
Court has long held the Three Strikes law “articulates an
alternative sentencing scheme for the current offense rather than
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an enhancement.” (Romero, supra, 13 Cal.4th at p. 527.)
Numerous Courts of Appeal have construed SB 81 in accordance
with the above-quoted language of Romero, and we agree with
those cases. (See People v. Dain (2024) 99 Cal.App.5th 399, 410-
411, review granted May 29, 2024, S2839243; People v. Olay
(2023) 98 Cal.App.5th 60, 67-69; People v. Burke (2023) 89
Cal.App.5th 237, 243-244.) We therefore reject Green’s argument
that SB 81 should apply to his sentence, as it was imposed under
the Three Strikes law, and did not include any enhancements.
We likewise reject Green’s argument that the cases rejecting his
position were wrongly decided, as those cases are clearly
supported by the plain language of the statute.
3 Review was granted in People v. Dain on a different issue
than the one presented here.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
COLLINS, J.
MORI, J.
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