People v. Perkins CA3 ( 2024 )

Filed 10/14/24 P. v. Perkins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C099324
Plaintiff and Respondent, (Super. Ct. No. 12F01436)
v.
DANTE PERKINS,
Defendant and Appellant.
Defendant Dante Perkins appeals from a resentencing order made under Penal
Code section 1172.75.1 Defendant had moved for dismissal of various enhancements
included in his aggregate sentence of 35 years eight months in state prison. At
1 Undesignated statutory references are to the Penal Code.
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resentencing, the trial court dismissed a one-year prior prison term enhancement made
invalid by amendments to section 667.5, subdivision (b), as well as two firearm
enhancements under the amendments to section 1385. It declined to dismiss a third
firearm enhancement.
Defendant contends that section 1385 required the trial court to dismiss the third
firearm enhancement unless doing so would threaten public safety, a finding the trial
court failed to make. Defendant also contends that the trial court erred in not striking a
prior strike under section 1385, again without making a finding of danger to public safety.
We conclude that the provisions of section 1385 do not apply to either the third
firearm enhancement or the prior strike. We therefore will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
When the victim returned to his car after buying cigarettes at a liquor store,
defendant pointed a handgun at him, threatened to shoot him if he got back in the car, and
then ordered the victim’s girlfriend and their child out of the car at gunpoint and drove off
in the car. (People v. Perkins (Oct. 7, 2013, C072924) [nonpub. opn.].)2 A jury found
defendant guilty of two counts of carjacking (§ 215, subd. (a); counts one and two),
second degree robbery (§ 211; count three), and possession of a firearm by a felon
(§ 29800, subd. (a)(1); count four). As to counts one, two, and three, the jury found that
defendant personally used a firearm (§ 12022.53, subd. (b)). In a bench trial, defendant
was found to have served a prior prison term and suffered a prior strike conviction.
The trial court sentenced defendant to an aggregate term of 35 years eight months
in state prison as follows: 18 years (double the upper term for the strike) for count one
plus 10 years for the firearm enhancement (§ 12022.53, subd. (b)); a consecutive three
years four months (one-third the middle term, doubled) for count two plus three years
2 This court considered respondent’s request to take judicial notice of the record of
the previous appeal in People v. Perkins, supra, C072924, as a motion to incorporate the
record by reference, and as such granted the request.
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four months (one-third the term) for the firearm enhancement (§ 12022.53, subd. (b));
plus one year for the prior prison term enhancement (§ 667.5, subd. (b)). The court
imposed concurrent terms for count three, with its attendant firearm enhancement, and
count four. A different panel of this court affirmed the judgment, rejecting defendant’s
claim that the trial court abused its discretion in denying his request to dismiss the prior
strike. (People v. Perkins, supra, C072924.)
In December 2022, defendant filed a request for resentencing under Senate Bill
No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483) (Stats. 2021, ch. 728, § 3), codified as
section 1171.1,3 seeking to dismiss the prior prison term enhancement under section
667.5. subdivision (b). Defendant also sought dismissal of the firearm enhancements
under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1 & 2), which
gave trial courts discretion to strike firearm enhancements imposed under section
12022.53, and Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) (Stats. 2021,
ch. 721, § 1), which added subdivision (c) to section 1385.
On April 26, 2023, the trial court determined that defendant’s sentence included an
enhancement that may be invalid under Senate Bill 483, having found his name on a list
of eligible individuals received from the Secretary of the Department of Corrections and
Rehabilitation. The court appointed defense counsel and set a briefing schedule.
In May 2023, defense counsel filed a brief in support of resentencing. Defendant
sought dismissal of the prior prison term enhancement and a full resentencing, including:
(1) imposition of the low term on count one under section 1170, subdivision (b)(6); (2)
striking the prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497;
and (3) imposition of a single firearm enhancement under section 1385.
3 Effective June 30, 2022, section 1171.1 was renumbered as section 1172.75.
Assembly Bill No. 200 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 58, § 12.). We will refer
to section 1172.75 throughout this opinion.
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In August 2023, the People filed an opposition acknowledging that, under Senate
Bill 483, defendant was entitled to a resentencing hearing and conceding that the one-
year prison prior enhancement must be dismissed. The People also argued that section
1385 as amended by Senate Bill 81 did not apply to the prior strike, which is not an
enhancement. The People acknowledged that mitigating circumstances enumerated in
section 1385, subdivision (c) may apply but argued the trial court should not strike any of
the firearm enhancements, because doing so would endanger public safety. Lastly, the
People contended the trial court should not exercise its discretion to strike the prior strike
under Romero, noting that the court had denied the same request in the underlying case
and arguing that defendant had failed to demonstrate that his background, character, and
prospects were such that he should be deemed outside the spirit of the “Three Strikes”
law.
On August 18, 2023, the trial court conducted a resentencing hearing. It began by
denying defendant’s Romero motion. Defendant does not challenge that decision on
appeal.
Proceeding to resentencing, the trial court found defendant ineligible for
probation. The court next considered mitigating circumstances favoring the dismissal of
enhancements, as set forth in section 1385, subdivision (c). The court found that the
mitigating circumstance specified in section 1385, subdivision (c)(2)(B), multiple
enhancements alleged in a single case, applied. Based on that provision, the court
dismissed two of the three section 12022.53 firearm enhancements. Given this action, the
court found that section 1385, subdivision (c)(2)(C)’s mitigating circumstance, under
which an enhancement could result in a sentence over 20 years, was inapplicable. The
court said, “I don’t find that to be relevant here anymore because I’ve dismissed all but
one of the firearm enhancements. So I have a firearm enhancement for ten years . . . that
in itself cannot make this term over 20 years.” Alternatively, the court weighed
aggravating and mitigating factors under the California Rules of Court and determined
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that it would not be in the interests of justice to strike the remaining firearm
enhancement.
The trial court then sentenced defendant on count one to the upper term of nine
years in state prison under section 1170, subdivision (b)(3), based on defendant’s
numerous prior convictions as an adult and sustained juvenile petitions, doubled by the
prior strike to 18 years, plus 10 years for the remaining firearm enhancement. The court
declined to sentence defendant to the low term based on his youth, defined as 26 years
old or younger, under section 1170, subdivision (b)(6)(B), finding it contrary to the
interests of justice given the numerous aggravating factors that outweighed the single
mitigating factor of youth.
On count two, the trial court sentenced defendant to a consecutive term of one-
third the middle term doubled to three years four months by the prior strike. The court
again imposed middle term concurrent sentences on counts three and four. Defendant’s
aggregate sentence now was 31 years four months.
Defendant filed a timely appeal.
DISCUSSION
Defendant contends the trial court violated his right to due process in refusing to
dismiss the remaining firearm enhancement under section 1385, given that the
enhancement combined with the terms imposed on counts one and two resulted in a
sentence exceeding 20 years (§ 1385, subd. (c)(2)(C)), and the court did not make a
finding that dismissal would threaten public safety. Defendant further contends that the
trial court erred in failing to dismiss his prior strike under section 1385 without finding
that doing so would endanger public safety.
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I
The Trial Court’s Decision Not to Strike the Remaining Firearm Enhancement
Pursuant to Section 1385, Subdivision (c)(2)(C)
We conclude first that section 1385, subdivision (c)(2)(C) does not apply to
defendant’s sentence and, second, that section 1385, subdivision (c), does not apply to a
prior strike under the Three Strikes law. Therefore, we need not reach the issue of
whether section 1385 required the trial court to find that public safety would be
endangered before refusing to dismiss an enhancement.
Senate Bill 483 provided a vehicle for defendant to raise the claims he now
advances under section 1385. Effective January 1, 2022, Senate Bill 483 added section
1172.75 to the Penal Code providing: “Any sentence enhancement that was imposed
prior to January 1, 2022, pursuant to subdivision (b) of [s]ection 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent offense as defined in
subdivision (b) of [s]ection 6600 of the Welfare and Institutions Code is legally invalid.”
(§ 1172.75, subd. (a).) The resentencing process described in section 1172.75 begins
with the Secretary of the Department of Corrections and Rehabilitation notifying the trial
court of any person serving a prison term that includes a section 667.5 enhancement,
which vests the court with jurisdiction to recall and “resentence the defendant after
verifying that his or her sentence includes a qualifying enhancement.” (People v. Kimble
(2024) 99 Cal.App.5th 746, 751, review granted Apr. 24, 2024, S284259, briefing
deferred; see § 1172.75, subds. (b), (c).) There is no dispute that defendant’s prior prison
term was not for a sexually violent offense; therefore, he was entitled to have the one-
year enhancement dismissed. However, the statute further provides that, at resentencing,
the trial court shall “apply any other changes in law that reduce sentences or provide for
judicial discretion so as to eliminate disparity of sentences and to promote uniformity of
sentencing.” (§ 1172.75, subd. (d)(2).)
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Accordingly, in a resentencing hearing compelled by Senate Bill 483, defendant
was permitted to also seek relief under Senate Bill 81, which amended section 1385 to
add subdivision (c), providing in relevant part that “the court shall dismiss an
enhancement if it is in the furtherance of justice to do so.” (§ 1385, subd. (c)(1).)
Section 1385, subdivision (c)(2) further provides: “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.”
Defendant argues the mitigating factor articulated in section 1385, subdivision
(c)(2)(C), applies here: “The application of an enhancement could result in a sentence of
over 20 years.” The trial court rejected this claim because the 10-year enhancement
imposed under section 12022.53, subdivision (b) could not itself result in a sentence
exceeding 20 years. Defendant, however, interprets section 1385, subdivision (c)(2)(C)
to apply whenever an enhancement is a component of a sentence that exceeds 20 years.
Whether subdivision (c)(2)(C) of section 1385 applies where the base term of the
sentence imposed already exceeds 20 years is a question of statutory interpretation that
we review de novo. (People v. Burke (2022) 89 Cal.App.5th 237, 242.) “ ‘To resolve
whether defendant’s interpretation of the . . . statute[] is correct, we are guided by
familiar canons of statutory construction. “[I]n construing a statute, a court [must]
ascertain the intent of the Legislature so as to effectuate the purpose of the law.”
[Citation.] In determining that intent, we first examine the words of the respective
statutes: “If there is no ambiguity in the language of the statute, ‘then the Legislature is
presumed to have meant what it said, and the plain meaning of the language governs.’
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[Citation.] ‘Where the statute is clear, courts will not “interpret away clear language in
favor of an ambiguity that does not exist.” [Citation.]’ ” [Citation.] If, however, the
terms of a statute provide no definitive answer, then courts may resort to extrinsic
sources, including the ostensible objects to be achieved and the legislative history.
[Citation.] “We must select the construction that comports most closely with the
apparent intent of the Legislature, with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.” ’ ” (Ibid., quoting People v. Coronado (1995) 12 Cal.4th 145, 151.)
We conclude that defendant’s interpretation is at odds with the clear text of the
statute. A sentence exceeding 20 years could “result” from an enhancement where a
sentence of that length arises as a consequence of the enhancement. (See Merriam-
Webster’s Collegiate Dictionary (11th ed. 2003) p. 1063.) In other words, the effect of
applying the enhancement itself leads to a sentence exceeding 20 years. The word
“result” denotes a causal relationship between the enhancement and a sentence exceeding
20 years. Thus, the statute concerns “(enhancements increasing [a] sentence above 20
years) . . . . ” (People v. Ortiz (2023) 87 Cal.App.5th 1087, 1097, fn. 6, review granted
Apr. 12, 2023, S278894, briefing deferred.) Here, the sentence already exceeded 20
years without any enhancement, so application of the one firearm enhancement the trial
court allowed to stand did not result in the effect addressed by this provision. We
conclude that the plain language of section 1385, subdivision (c)(2)(C) does not apply
where the enhancement itself does not “result” in a sentence exceeding 20 years.
II
The Trial Court’s Refusal to Dismiss the Prior Strike Conviction
Defendant next argues that the trial court erred because the Legislature’s
enactment of section 1385, subdivision (c), altered the scope of the trial court’s discretion
to dismiss his prior strike conviction. We disagree.
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As we explained in Burke: “Subdivision (c) of section 1385 expressly applies to
the dismissal of an ‘enhancement.’ (§ 1385, subd. (c)(1).) ‘Ordinarily words used in a
statute are presumed to be used in accordance with their established legal or technical
meaning.’ [Citation.] The term ‘enhancement’ has a well-established technical meaning
in California law. [Citation.] ‘A sentence enhancement is “an additional term of
imprisonment added to the base term.” ’ [Citations.] It is equally well established that
the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for
the current offense. [Citations.] We presume the Legislature was aware of, and
acquiesced in, both this established judicial definition of enhancement and the distinction
between an enhancement and an alternative sentencing scheme such as the Three Strikes
law. [Citation.] The Legislature did not otherwise define the word ‘enhancement’ in
section 1385. Because the statutory language is clear and unambiguous, we follow its
plain meaning and do not consider the legislative history cited by defendant. [Citation.]
The plain language of subdivision (c) of section 1385 applies only to an ‘enhancement,’
and the Three Strikes law is not an enhancement. We therefore conclude that section
1385, subdivision (c)’s provisions regarding enhancements do not apply to the Three
Strikes law.” (People v. Burke, supra, 89 Cal.App.5th at pp. 243-244, fn. omitted.)
Defendant also argues that in certain circumstances this court’s interpretation of
section 1385 as inapplicable to the Three Strikes law might render other provisions of the
statute meaningless. For example, he points out that under section 1385, subdivision
(c)(2)(G), a mitigating circumstance exists where the defendant was a juvenile when the
defendant committed “the current or any prior offenses, including criminal convictions
and juvenile adjudications, that trigger the enhancement or enhancements applied in the
current case.” He further observes that a juvenile adjudication cannot trigger an
enhancement because it is not considered a conviction for purposes of an enhancement,
but a juvenile adjudication may qualify as a strike under the Three Strikes law. (People
v. Olay (2023) 98 Cal.App.5th 60, 66.) So, the argument goes, “to give the phrase
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‘juvenile adjudications[]. . . that trigger the enhancement or enhancements applied in the
current case’ in section 1385, subdivision (c)(2)(G) any purpose or meaning, the term
‘enhancement’ should include prior strike allegations.” (Id. at p. 66.) Defendant
acknowledges, however, that Olay considered this argument and agreed “with Burke’s
ultimate conclusion—that section 1385, subdivision (c) does not apply to the Three
Strikes Law.” (Id. at p. 67; accord, People v. McDowell (2024) 99 Cal.App.5th 1147,
1154; People v. Dain (2024) 99 Cal.App.5th 399, 410, review granted May 29, 2024,
S283924, answer brief due; People v. Serrano (2024) 100 Cal.App.5th 1324, 1338
[“appellate courts have routinely rejected the argument that the ‘Three Strikes’ law
constitutes an enhancement under section 1385[, subdivision] (c)”].)
We conclude that subdivision (c) of section 1385 does not apply to a prior strike
under the Three Strikes law.
DISPOSITION
The judgment is affirmed.
\s\ ,
Krause, Acting P. J.
We concur:
\s\ ,
Boulware Eurie, J.
\s\ ,
Feinberg, J.
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