People v. Fagan CA5 ( 2024 )

Filed 10/17/24 P. v. Fagan CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F087608
Plaintiff and Respondent,
(Super. Ct. No. SF011641A)
v.
DAVID DANIEL FAGAN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
Stephanie A. Gunther, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Peña, J. and Meehan, J.
In 2004, defendant David Daniel Fagan was convicted of first degree murder and
sentenced to 57 years to life in prison. This sentence included a one-year prior prison
term enhancement. Following enactment of Penal Code section 1172.75,1 the trial court
recalled defendant’s sentence and struck the prior prison term enhancement but denied
defendant’s Romero2 motion. On appeal, defendant argues that the court abused its
discretion in denying the motion. The People disagree. We affirm.
PROCEDURAL HISTORY3
On January 20, 2004, the Kern County District Attorney filed an information
charging defendant with first degree murder (§ 187, subd. (a); count 1). The information
also alleged that, in the commission of the offense, defendant personally used a deadly
weapon (§ 12022, subd. (b)(1)), had suffered two prior serious felony convictions (§ 667,
subd. (a)), had suffered two prior strike convictions within the meaning of the
“Three Strikes” law (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)), and had served a
prior prison term for a conviction other than a specified violent felony conviction
(§ 667.5, former subd. (b)).
On May 25, 2004, a jury found defendant guilty of first degree murder. The jury
also found true one prior serious felony conviction allegation, one prior strike conviction
allegation, the prior prison term allegation, and that defendant personally used a deadly
weapon.
On July 6, 2004, the trial court sentenced defendant to an aggregate term of
57 years to life. This term consisted of 50 years to life for first degree murder (the
sentence was doubled due to the prior strike conviction); one year for the personal use of
1 All further undesignated statutory references are to the Penal Code.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
3 We were not provided the full record from the 2004 proceedings. However, there
is no dispute regarding the procedural history of this case.
2.
a deadly weapon enhancement; five years for the prior serious felony conviction
enhancement; and one year for the prior prison term enhancement.
On January 18, 2024, the trial court held a resentencing hearing pursuant to
section 1172.75. The court struck the personal use of a deadly weapon enhancement, the
prior serious felony conviction enhancement, and the prior prison term enhancement.
However, the trial court denied defendant’s motion to strike the prior strike conviction
pursuant to Romero and sentenced defendant to 50 years to life.
On February 9, 2024, defendant timely filed a notice of appeal.
FACTUAL SUMMARY4
“At 10:00 a.m. on September 2, 2003, correctional officers at Wasco
State Prison observed inmate Richard Zavala go down on one knee and fall
on his side in the yard of the facility. Sergeant Robert Mosley was seated at
his desk in the prison program office. He was able to see the prison yard,
which was occupied by 10 to 12 inmates rather than the usual 100. Mosley
instructed Correctional Officer James Wilbanks to make sure Zavala was all
right.
“Officer Wilbanks initially walked in Zavala’s direction and then ran
when he saw Zavala in distress. When Wilbanks reached Zavala he
observed blood ‘gushing out’ of Zavala’s head and covering his face. The
top of Zavala’s cranium was crushed in the form of ‘the top portion of a
[baseball] bat.’ No one was near Zavala and Wilbanks twice asked Zavala
who hit him. Zavala was conscious but did not answer the officer’s
question and instead responded, ‘[W]ho are you?’
“Correctional Officer Anthony Sandoval found a baseball bat near
Zavala and took it into custody. Sandoval did not see any blood on the bat.
Two hours after the incident, Correctional Officer Steve Riley found a
blood-smeared baseball bat stored with the athletic equipment in the prison
recreation room. At trial, the parties stipulated that Mark Riehle, a member
of the Kern County Sheriff’s Department Technical Investigations Unit,
analyzed the two baseball bats for the presence of fingerprints but found no
4 On this court’s own motion, we take judicial notice of the prior opinion in People
v. Fagan (Aug. 22, 2005, F045937) [nonpub. opn.], pursuant to Evidence Code
sections 452, subdivision (d) and 459. Our court summarized the facts underlying the
conviction in defendant’s prior appeal and we use that same summary here.
3.
usable fingerprints on either bat. The parties also stipulated that
Brenda Smith, a criminalist with the Kern County Regional Crime
Laboratory, conducted DNA analysis on the wide portion of the
blood-smeared bat and determined the DNA in the blood belonged to
victim Zavala.
“Billy Whitten was an inmate at Wasco State Prison on the day of
the incident and testified after being granted use immunity. He admitted he
was serving time for a parole violation following a conviction for assault
with great bodily injury and was housed in the minimum security unit at
Wasco. At the time of the incident, Whitten was walking the track of the
minimum security, Level One yard of the prison. At the same time,
[defendant] was playing baseball with an inmate known as ‘Shorty’ behind
one of the prison buildings. Whitten saw Zavala walk out of the building
and smoke a cigarette. Whitten knew Zavala, whose prison nickname was
‘Train.’ From a distance of 27 feet, Whitten saw [defendant] hit Zavala in
the head three times with a baseball bat. Whitten also said the bat
resembled the blood-smeared baseball bat secured by Officer Riley.
“Whitten did not report the incident on the day it occurred. He later
spoke to Correctional Lieutenant Richard Christensen and said another
inmate named Medina had also hit Zavala with the baseball bat. According
to Whitten, yet another inmate, named Big Ray, had been with Zavala
before the incident and Whitten thought Big Ray had ‘bust’ Zavala in the
mouth (although he was not sure of this). Whitten said a few days before
this incident, some of Zavala’s friends had beaten up an inmate named
Johnny multiple times. Zavala was present for one of those beatings.
“Ray Briones was an inmate at Wasco State Prison in
September 2003 and was present on the day of the incident. Briones was
acquainted with [defendant], who was nicknamed ‘Buck,’ but they were not
friends. Briones had numerous prior felony convictions and said he was a
member of the Southside Gang, a prison gang comprised of Hispanics from
Southern California. According to Briones, the Southside [G]ang operates
both inside and outside of prison. Briones said [defendant] and Zavala
were also members of that gang. Zavala, formerly of Orange County, was
the ‘head’ or leader of the pack of the minimum security, Level One yard as
well as a leader of the entire gang. In contrast, Briones and [defendant]
were from Los Angeles and were only soldiers, not leaders, of the gang.
“Briones testified the members of the Southside Gang at Wasco had
a meeting a few days before the incident. Both [defendant] and Briones
attended the meeting, which was held in the early evening. Zavala came by
the meeting, said he knew people were mad, and told them to keep the
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peace. The meeting took place because Zavala had previously instructed
[defendant] to bring a friend named Johnny Nielsen to a specific place in
the prison facility. When [defendant] complied, Zavala had some
confederates—a ‘wrecking crew’—subject Nielsen to several beatings. At
the subsequent meeting, gang members were upset because Nielsen was
from Los Angeles and [defendant] did not intervene or try to help Nielsen
when the beating began. They were particularly upset because Zavala had
tricked [defendant] into bringing his ‘partner’—Nielsen—to a specified
area of the prison for a beating by the wrecking crew. Briones explained
that by not helping Nielsen, [defendant] made Southsiders from
Los Angeles ‘look bad on the yard’ when compared with Southsiders from
Orange County and the Inland Empire. At the meeting, [defendant] initially
tried to explain his conduct and ultimately said he would ‘take care of it.’
However, he did not offer any details.
“On the morning of the incident, Briones asked Zavala to sell him
some marijuana. Zavala suggested they go outside to talk about the
transaction. They went to the prison baseball field where [defendant], an
inmate named Carroll, and a third inmate were playing baseball. Briones
bought the marijuana and smoked some with Zavala. When [defendant]
asked if he could have a ‘hit’ of the marijuana, Zavala agreed, saying,
‘[Y]eah, come on down.’ Zavala handed the cigarette to [defendant], who
had a baseball bat in his hand at the time. [Defendant] and Zavala then
started speaking about the beating of Nielsen. Briones said he knew
something was going to happen and started to leave the area.
“While his back was turned to his fellow inmates, Briones heard a
thump that sounded like a bat striking a watermelon. Briones turned
around and saw that Zavala had been hit in the face and his glasses had
been shattered. Zavala fell and [defendant] hit him three more times with
the baseball bat, even though Briones told [defendant] to leave him alone.
Briones thought [defendant] was going to hurt Zavala but not kill him.
Briones also thought that [defendant’s] conduct was too harsh a punishment
for a fellow Southsider. When Briones went to report the incident, another
inmate with a bat came over, told him he did not see anything, and
instructed him to back away because the dispute involved Southside
business. Although Briones testified he did not hit Zavala with a bat or his
fists, Briones did tell Correctional Captain Speer, ‘There’s only one dude I
seen. And then, like, right when I hit that fool, that was it.’
“Danny Carroll was an inmate at Wasco State Prison on the date of
the incident and received immunity for his testimony. On September 2,
2003, he saw Zavala in a pool of blood on the ground of the yard. He did
5.
not see anyone hit Zavala and did not see [defendant] hit Zavala with a bat.
Carroll told Lieutenant Christensen he did not see anyone hit Zavala with a
bat.
“Lieutenant Christensen investigated the death of Zavala and
twice spoke to inmate Carroll. Carroll said on the day of the incident he
was playing baseball with [defendant] in the yard while Zavala and Briones
were speaking with one another. [Defendant] went over to the pair and
started to hit Zavala with a bat he was holding. An inmate named Arguela
went over to Briones and began yelling, ‘Southside.’ Carroll repeated this
version of events in a second interview with Christensen. The latter said
Carroll offered inconsistent statements in which he minimized his
involvement, said he got chased, and claimed he did not see what
happened.
“Antonio Alvarez was also an inmate at Wasco State Prison on the
date of the incident and testified under a grant of use immunity. Alvarez
said [defendant] did not ask him to help beat up Zavala sometime prior to
the incident. Alvarez denied telling Lieutenant Christensen that he had
such a conversation with [defendant]. Christensen contradicted Alvarez,
said he had spoken with Alvarez one week after the incident, and that
[defendant] said he was going to get back at Zavala and wanted Alvarez to
help him. Alvarez told Christensen he declined, explaining he was going to
be paroled soon. According to Alvarez, [defendant] never said he was
going to attack Zavala with a baseball bat or that he was going to kill
Zavala. Christensen asked Alvarez if he saw the attack on Zavala but
Alvarez said he did not.
“Raffi Kartalian, M.D., was working as an emergency room resident
at Kern Medical Center in Bakersfield in September 2003. He initially
treated Zavala on the morning of the incident. Dr. Kartalian said
paramedics transported Zavala to the emergency room. He was alive upon
arrival and had a spontaneous heart beat and respiration. However, he had
multiple injuries to the face, eyes, skull, and scalp. Zavala made no
coherent sounds, did not open his eyes to verbal or painful stimuli, and did
not move his extremities in any meaningful way. From the emergency
room, Zavala was admitted to the intensive care unit for trauma surgery
service.
“Francesca Hoehne, M.D., was working as a surgical resident in
trauma service at Kern Medical Center in September 2003. She treated
Zavala on the morning of the incident. He arrived in the Level Two trauma
center with large lacerations to his head and face, particularly the nose and
mouth areas. Zavala was able to communicate but his breathing was very
6.
slow. The trauma center staff stapled Zavala’s head wounds to control the
profuse bleeding. A CAT scan of Zavala’s head revealed extensive facial
fractures of the maxillary sinuses and a nasal fracture. He also had a
questionable vertex epidural hematoma (a collection of blood in the brain).
The stapling did not effectively close Zavala’s head lacerations and he was
taken to an operating room for further suturing.
“Murali Naidu, M.D., was working as a surgical resident at Kern
Medical Center in September 2003. Dr. Naidu testified he treated Zavala
early on the morning of September 3 and that Zavala took a turn for the
worse that evening. At that time, the neurosurgical staff informed
Dr. Naidu that Zavala had tested positive for brain death. Zavala was taken
off of life support and Dr. Naidu pronounced him dead at 9:41 p.m.
“Thomas Volk, M.D., a forensic pathologist, performed an autopsy
on Zavala’s body the next day. Dr. Volk concluded Zavala had severe brain
damage and, as a result, his heart and respiratory system failed. In reaching
this conclusion, Dr. Volk noted:
‘… There was about a four or five inch fracture across the left side
of [Zavala’s] forehead, just above the eyebrow, behind the laceration
I described. There was a rather large fracture beginning on the left
side of the face of the head or on the temporal region, front of the
ear, extending around back behind the head, around the back of the
head and then going forward to the base of the skull. And then there
were multiple other small pieces of bone fractured over the left side
of the head, much as if you had mashed a hard boiled egg, sort of.’
Dr. Volk concluded that Zavala had been struck with a blunt object.
“Defense
“Antonio Alvarez also testified as a witness for the defense. He was
working on a landscaping crew outside the prison yard at the time of the
attack on Zavala. Alvarez claimed the correctional officers who
interviewed him threatened to keep him in prison ‘forever’ unless he agreed
with their version of events. Alvarez testified that [defendant] never said he
was going to attack Zavala, never said Zavala was going to be attacked with
a baseball bat, and never said that Zavala was going to be attacked in any
way.
“Danny Samaro, nicknamed ‘D,’ testified he was an inmate at Wasco
State Prison in September 2003 and was housed in the minimum security
Yard E portion of the complex. Samaro said he was a friend of
7.
Richard Zavala and smoked a cigarette with him at 6:00 a.m. on the day of
the incident. The pair smoked outside a back corner of the E-2 Building.
They smoked in the presence of two fellow inmates nicknamed ‘Bad Ass’
and ‘Ag Dog.’ At 7:30 a.m., Samaro left the E Yard to shower for a medical
appointment in the main prison facility. Samaro never saw Ray Briones in
Richard Zavala’s presence that morning.” (People v. Fagan, supra,
F045937, fns. omitted.)
DISCUSSION
I. Additional Background
On October 4, 2023, defendant, through counsel, filed a petition for resentencing
pursuant to section 1172.75. On January 11, 2024, defendant filed a sentencing
statement. Defendant asked the trial court to strike his prior strike conviction pursuant to
Romero because he “has been working to change his life” and “is now a changed man.”
In support, defendant provided, inter alia, letters from his parents and Rev. Dr. Vance
Nilsen; evidence that he received an Associate of Arts degree in Pastoral Ministry from
Thornwell Presbyterian Divinity College; and evidence that he successfully completed
rehabilitative courses and programs, such as the “Getting Out by Going In” group
certificate course and the basic and advanced courses in nonviolent conflict resolution.
Defendant also noted that even if the trial court struck the strike, he would still be
sentenced to a term of 25 years to life on count 1.
The trial court held the resentencing hearing on January 18, 2024. At the outset,
the court noted that it “read and considered the updated presentence report by Probation
that is dated November 21, 2023; also, the original report, which was filed back on
July 6th, 2004; also, a sentencing statement submitted by defense counsel that has
numerous attachments, which are positive information about … defendant’s progress,
letters from both his mother and father addressing progress they believe he’s made while
in custody.”
After hearing arguments from the parties, the trial court ruled as follows:
8.
“I’m considering under the case law that helps guide the Court in
exercising its discretion pursuant to [section] 1385, including the Romero
decision. There’s [sic] many other cases to help guide us. We’re looking at
all the different factors involving … defendant, the crime, his criminal
history, all the individualized characteristics of … defendant. The question
is does he fall outside the scheme of the Three Strikes Law? And
although—his last two felonies before the murder that caused him to be
sentenced in the current case, even they were drug related. After the 1997
conviction and his prison commitment, he violated parole twice upon his
release from custody. And then the last time he was committed to [the
Department of Corrections and Rehabilitation] prior to this case, he had
only been—he hadn’t become eligible for parole, I assume, before the
current offense was committed in prison, a horrific crime, beating a fellow
inmate to death with a baseball bat.
“So considering all the different circumstances, I appreciate the
progress that it would appear that [defendant] has been making, but that’s
not enough to cause the Court to find he falls outside the scheme of the
Three Strikes Law and the Romero motion is denied.”
Later at the same hearing, the trial court stated:
“I … find circumstances in mitigation. One, … defendant’s prior
performance under parole from 1994 to 1997 was satisfactory;
two, multiple enhancements are alleged in a single case. The enhancement
is based on a prior conviction over five years old, referring to the
[section] 667[, subdivision] (a) prior conviction. Circumstances in
aggravation, one, his prior convictions as an adult are numerous; two, his
prior performance on felony probation and parole was unsatisfactory
because of the re-offending; and three, he has served a prior prison term.
“I’ll note that the probation officer did request an update on …
defendant’s postconviction conduct and has received no information to
provide to the Court.”
II. Applicable Law
A trial court has discretion to dismiss a prior strike conviction alleged under the
Three Strikes law if the dismissal is in the furtherance of justice, “subject … to strict
compliance with the provisions of section 1385 .…” (Romero, supra, 13 Cal.4th at
p. 504; § 1385, subd. (a).) “[T]he underlying purpose of striking prior conviction
allegations is the avoidance of unjust sentences.” (People v. Garcia (1999) 20 Cal.4th
9.
490, 500.) In exercising its discretion, the trial court “must consider whether, in light of
the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) These are
“stringent standards.” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
III. Standard of Review
We review the denial of a motion to dismiss prior strike convictions for abuse of
discretion. (Carmony, supra, 33 Cal.4th at p. 374.) The Three Strikes law establishes
that not dismissing a prior strike conviction is the “norm,” and there is a “strong
presumption that any sentence that conforms to these sentencing norms is both rational
and proper.” (Id. at p. 378.) Abuse of discretion in failing to dismiss a prior strike
conviction occurs in limited circumstances, such as where the trial court was not aware of
its discretion; where the trial court considered impermissible factors; or where applying
the Three Strikes law would, as a matter of law, “ ‘produce[] an “arbitrary, capricious or
patently absurd” result’ under the specific facts of a particular case.” (Ibid.)
Additionally, abuse of discretion occurs when the trial court’s findings of fact are not
supported by substantial evidence. (Haraguchi v. Superior Ct. (2008) 43 Cal.4th 706,
711.) Substantial evidence is “ ‘evidence that is reasonable, credible, and of solid
value .…’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507; People v. Reyes (2023) 14
Cal.5th 981, 988.)
IV. Analysis
Defendant argues that the trial court abused its discretion in denying his Romero
motion. Defendant bases much of his argument on the assertion that the court failed to
adequately consider his character and prospects, specifically his rehabilitative efforts
10.
while in prison and that he had been crime free for approximately 20 years. Defendant
also relies heavily on People v. Avila (2020) 57 Cal.App.5th 1134.
Contrary to defendant’s assertion, the trial court adequately considered defendant’s
character and prospects. At the resentencing hearing, the court noted that it reviewed
relevant documents, including defendant’s sentencing statement and the attached
documents. In making its ruling, the court stated it considered, among other things “all
the individualized characteristics of … defendant.” While the court “appreciate[d] the
progress that it would appear that [defendant] ha[d] been making,” that progress was “not
enough to cause the Court to find he falls outside the scheme of the Three Strikes Law.”
Additionally, prior to sentencing defendant, the court noted that “the probation officer did
request an update on … defendant’s postconviction conduct [from the Department of
Corrections and Rehabilitation] and has received no information to provide to the Court.”
Thus, the court specifically considered defendant’s rehabilitative efforts, including the
fact that there was no record that defendant engaged in any additional criminal conduct
while in prison.5
As to the other relevant factors defendant argues that the trial court did not take
into account, including that the crime was related to a mental disorder (drug addiction)
and defendant’s age at the time of the prior strike conviction, defendant is correct that the
trial court did not specifically mention these factors. However, the court considered
defendant’s “criminal history” and “all the individualized characteristics of …
defendant.” Moreover, defendant did not ask the trial court to consider these factors or
object to the court’s failure to specifically mention them. “ ‘A party in a criminal case
may not, on appeal, raise “claims involving the trial court’s failure to properly make or
articulate its discretionary sentencing choices” if the party did not object to the sentence
5 We note that the trial court reduced defendant’s sentence by six years based, in
part, on defendant’s progress in prison. Additionally, at the end of the hearing, the court
“commend[ed]” defendant for the progress he had made.
11.
at trial. [Citation.] The rule applies to “cases in which the stated reasons allegedly do not
apply to the particular case, and cases in which the court purportedly erred because it
double counted a particular sentencing factor, misweighed the various factors, or failed to
state any reasons or give a sufficient number of valid reasons .…” ’ ” (People v. Scott
(2015) 61 Cal.4th 363, 406.) “Strong policy reasons support this rule: ‘It is both unfair
and inefficient to permit a claim of error on appeal that, if timely brought to the attention
of the trial court, could have been easily corrected or avoided. [Citations.]’ [Citation.]
‘ “ ‘ “The law casts upon the party the duty of looking after his legal rights and of calling
the judge’s attention to any infringement of them. If any other rule were to obtain, the
party would in most cases be careful to be silent as to his objections until it would be too
late to obviate them, and the result would be that few judgments would stand the test of
an appeal.” ’ ” [Citation.]’ ” (People v. Stowell (2003) 31 Cal.4th 1107, 1114; accord,
People v. Salazar (2016) 63 Cal.4th 214, 239–240; People v. French (2008) 43 Cal.4th
36, 46.) Thus, even if the trial court had failed to consider these factors, defendant
forfeited this argument.
Moreover, defendant’s reliance on Avila is misplaced. Unlike in Avila, supra, 57
Cal.App.5th at p. 1141, the trial court here considered the relevant factors. Moreover, in
Avila, the trial court characterized the current crimes as violent even though they were
not. (Id. at pp. 1142–1143.) In fact, the defendant in Avila “ha[d] not committed a
violent felony since his strike offenses, showing that the severity of his record [was]
decreasing.” (Id. at p. 1143.) In contrast, the current crime in this case is murder, which
is a violent felony. (§§ 667.5, subd. (c)(1), 667, subd. (d)(1).) Moreover, as the trial
court reasonably found, it was a “horrific crime.”
It is true that, based on the record in this case, defendant’s behavior in prison since
2004 has been laudatory. However, given defendant’s criminal history, including the
horrific nature of the crime for which defendant was sentenced, we cannot find that the
trial court abused its discretion in denying defendant’s Romero motion. (Carmony, supra,
12.
33 Cal.4th at p. 378 [“ ‘[I]t is not enough to show that reasonable people might disagree
about whether to strike one or more’ prior conviction allegations. [Citation.] Where the
record is silent [citation], or ‘[w]here the record demonstrates that the trial court balanced
the relevant facts and reached an impartial decision in conformity with the spirit of the
law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the
first instance’ ”]; People v. Mullins (2018) 19 Cal.App.5th 594, 611 [We “give deference
to the trial court’s weighing of the relevant factors”].)
Defendant makes several other arguments, none of which are persuasive.
Defendant argues that the “hyperpunitive policies” underlying the Three Strikes law are
irreconcilable with current sentencing policy. It is not clear why defendant includes this
argument. Defendant cites to no authority suggesting that the Three Strikes law is
unconstitutional or otherwise invalid, nor does he ask us to find that it is. In fact,
defendant asks us to “remand this matter back to the trial court to reconsider his Romero
motion focusing more on current information and not just what was known 20 years
ago.” Moreover, even if we agreed with defendant’s premise, we cannot invalidate or
ignore the Three Strikes law on the ground that it is bad policy. (See, e.g., Spier v. Baker
(1898) 120 Cal.370, 372; Romero, supra, 13 Cal.4th at p. 531.)
Finally, defendant argues that the trial court improperly applied section 1172.75
and California Rules of Court, rule 4.423(a). Defendant asserts that the court failed to
consider two mitigating factors: “[t]he crime was committed because of an unusual
circumstance, such as great provocation, that is unlikely to recur”; and “[t]he defendant,
with no apparent predisposition to do so, was induced by others to participate in the
crime.” (Cal. Rules of Court, rule 4.423(a)(3), (5).) Defendant also asserts that the court
did not conduct a full resentencing as required by section 1172.75, because “it is clear the
court did not start from scratch.”6
6 Defendant also cites to section 1172.75, subdivision (d)(1). This section states,
“[r]esentencing pursuant to this section shall result in a lesser sentence than the
13.
As to the mitigating factors, defendant did not argue below that these mitigating
factors applied or object to the trial court’s failure to consider them. Accordingly,
defendant forfeited this argument for the same reasons he forfeited his argument that the
court failed to take into account defendant’s age at the time of the prior strike conviction
and that the crime was related to a mental disorder. Moreover, even if his argument has
not been forfeited, defendant does not point to any evidence in the record suggesting that
an unusual circumstance (like great provocation) caused defendant to murder another
inmate, or that defendant was induced by others to murder the inmate with no apparent
predisposition to do so. Thus, it appears that the court did not take these mitigating
factors into consideration because they do not apply.
As to the argument that the trial court failed to conduct a full resentencing as
required by section 1172.75, defendant is incorrect. On December 15, 2023, when
continuing the resentencing hearing, the trial court stated it needed “more time to
prepare” because “[t]here’s a lot of discretion [it] need[ed] to consider and exercise in
performing a full resentencing.” Then, at the hearing, it considered every aspect of
defendant’s sentence. While it declined to strike the prior strike conviction, it struck
every other sentencing enhancement. Nothing in the record suggests that the court did
not “start from scratch” or believed it was bound by any aspect of the prior sentence.
Based on the foregoing, defendant’s arguments fail.
DISPOSITION
The judgment is affirmed.
one originally imposed as a result of the elimination of the repealed enhancement, unless
the court finds by clear and convincing evidence that imposing a lesser sentence would
endanger public safety.” (§ 1172.75, subd. (d)(1).) As the resentencing did result in a
lesser sentence, the trial court was not required to find by clear and convincing evidence
that imposing a lesser sentence would endanger public safety.
14.