People v. Cry CA3

Filed 1/4/23 P. v. Cry 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C095493
Plaintiff and Respondent, (Super. Ct. No. 14F05904)
v.
KAVON WILLIAM CRY,
Defendant and Appellant.
This case comes to us for the second time on appeal. Defendant Kavon William
Cry1 appeals the trial court’s order denying his request to strike a 25-year firearm
enhancement under Penal Code2 section 12022.53, subdivision (d). Defendant contends
the trial court abused its discretion in refusing to strike the term for the firearm
enhancement because the court failed to properly consider relevant factors under
1 Defendant’s name is listed several different ways throughout the record. While
the notice of appeal lists defendant’s name as “Kavon Cry,” the original abstract of
judgment and the corrected minute orders use “Kavon William Cry”; we use the latter
name in this opinion.
2 Undesignated section references are to the Penal Code.
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amended section 1385, which became effective on January 1, 2022. Defendant further
contends remand is required so the trial court can consider additional mitigating factors
included in the amended California Rules of Court. Finding defendant was not entitled to
the application of amended section 1385, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2014, defendant and two codefendants were involved in a “drug rip
gone bad,” during which defendant shot and killed victim Marquail H. Defendant was
eighteen years old at the time.
In 2016, a jury convicted defendant of murder and attempted robbery, finding true
a robbery-murder special-circumstance allegation. The jury also found defendant
personally discharged a firearm causing great bodily injury or death. The trial court
sentenced defendant to life without the possibility of parole, with a consecutive term of
25 years to life for the firearm enhancement.
In 2020, we affirmed defendant’s conviction but remanded the case to the trial
court for resentencing, finding Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017,
ch. 682, §§ 1-2) applied retroactively to defendant. Senate Bill No. 620, which became
effective January 1, 2018, amended sections 12022.5 and 12022.53 to give trial courts
discretion to strike firearm enhancements in the interest of justice. Because defendant’s
sentence was not yet final, we remanded the matter so the court could consider whether to
exercise its discretion to strike the firearm enhancement under the amended law. (See
In re Estrada (1965) 63 Cal.2d 740, 745.)
Following remand, defendant filed pleadings arguing his youthfulness and
childhood trauma⸺including parental neglect and repeated exposure to
violence⸺supported striking the enhancement. The prosecution filed responsive
pleadings urging the trial court not to strike the enhancement, arguing the additional term
corresponded with his involvement in the offense and the factors supporting the
enhancement outweighed mitigating circumstances.
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A hearing was held on December 17, 2021. At the start of the hearing, defense
counsel moved to continue the hearing to January 2022 due to changes to section 1385
set to take effect on the first of the month, pursuant to Senate Bill No. 81 (2021-2022
Reg. Sess.) (Stats. 2021, ch. 721, § 1). The court denied the request, but said it was
aware of the impending changes to section 1385 and its decision would comply with both
the amended and current law.
The court said it had reviewed the pleadings that had been filed, and then heard
victim impact statements. Both the prosecution and defense submitted the matter on their
pleadings. The court then declined to strike the firearm enhancement, finding the
sentence originally imposed was just, and it “would not be just to strike the enhancement,
nor the punishment for that enhancement.”
In making its ruling, the court explained it had considered factors set forth in the
California Rules of Court sections regarding general objectives of sentencing,
circumstances in aggravation, and circumstances in mitigation. The court also stated it
had considered the changes to section 1385, noting under the amended law, “in
exercising its discretion [to dismiss an enhancement in the furtherance of justice], the
court shall consider and give and afford great weight to evidence offered to prove any of
the mitigating circumstances” listed in subdivision (c), in subparagraphs (A) through (I).
The court stated it had “considered those factors.”
Then the court found the only factor that could apply to defendant would be that
the “enhancement could result in a sentence of over 20 years,” but that “even if that
factor does apply, and even giving that great weight,” there would still exist “a
likelihood that [dismissal] would result in physical injury or serious danger to others,
based on the severe conduct that [defendant] committed back when he committed this
crime.” (See § 1385, subd. (c)(2).) Although defendant would be serving life without
parole with or without the firearm enhancement, the court nonetheless found defendant
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still posed a danger to public safety based on his conduct, and the sentence “doesn’t
diminish and take away from the dangerousness of his behavior.”
The court also noted the “very strong language from the original sentencing
court,” when it said: “ ‘There’s no doubt in the court’s mind that this was a premeditated
cold and calculated killing. The defendant was 18 years old at the time, and I have no
doubt that he was aware of his actions and what he was doing was wrong on so many
levels.’ ” The court then said it had made the same finding, additionally remarking, “The
firearm in this matter was just simply used in the most lethal manner that a firearm could
be used. This is exactly why the law is on the books and why this enhancement is in
place. It is the use of the firearm that ended [Marquail H.]’s life at the young age of 25.
[Defendant] deliberately shot [Marquail H.] in the head for a robbery and just left him
there to die. [¶] I do believe that the sentence initially imposed is just, and that it would
not be just to strike the enhancement, nor the punishment for that enhancement.”
Based on these findings, the trial court declined to exercise its discretion to strike
the firearm enhancement under section 1385, ruling “the sentence that was originally
imposed remains imposed in [defendant]’s case.”
Defendant appeals.
DISCUSSION
Section 1385 grants trial courts the discretion to strike or dismiss an enhancement
or the punishment for that enhancement if it is in the furtherance of justice to do so.
(§ 1385, subds. (a), (b).) Under the former section 1385 effective through the end of
2021, trial courts were permitted to strike or dismiss an enhancement in the furtherance
of justice but were not required to consider any specific factors. In 2021, the Legislature
passed Senate Bill No. 81 (2021-2022 Reg. Sess.), which amended section 1385 to add
subdivision (c). (Stats 2021, ch. 721, § 1, eff. Jan 1, 2022.)
Under the amended law, unless dismissal is prohibited under an initiative statute,
trial courts are now required to dismiss an enhancement if it is in the furtherance of
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justice to do so. (§ 1385, subd. (c)(1).) In exercising its discretion, the court must
“consider and afford great weight to” evidence of the mitigating circumstances listed in
subparagraphs (A) through (I), “unless the court finds that dismissal of the enhancement
would endanger public safety.” (§ 1385, subd. (c)(2).) Significantly, section 1385,
subdivision (c)(7) provides these changes “shall apply to all sentencings occurring after
January 1, 2022.” (See also Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Apr. 27, 2021, par. 7
[clarifying the Legislature’s intention that the provisions of Senate Bill No. 81 would not
apply retroactively].)
Defendant does not argue the trial court erred in applying the law in effect at the
time of the hearing. Rather, defendant contends the trial court improperly applied the
version of section 1385 that went into effect two weeks later. Defendant also contends
remand is necessary so the court may consider the new mitigating factors in the amended
California Rules of Court.
We review the denial of a motion to strike an enhancement for abuse of discretion.
(People v. Carmony (2004) 33 Cal.4th 367, 371.) “[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.)
Although the court said it applied both versions of section 1385, in explaining its
ruling, it primarily discussed the application of the amended law. As noted, however,
amended section 1385 was not intended to be retroactive, and defendant did not have the
right to be sentenced under it. (See § 1385, subd. (c)(7).)
Defendant contends the court was correct to consider the amended statute.
However, while it is the case that “a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible” to provide for retroactive
application, this is only assumed true “in the absence of contrary indications.” (People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) Here, subdivision (c)(7) indicates the
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Legislature intended the amendments to section 1385 to be prospective only. Thus,
subdivision (c) is inapplicable to defendant, as are the new California Rules of Court
adopted to reflect the addition of that subdivision. The former law required only that the
trial court engage in a furtherance of justice analysis, which the record shows the court
did here, and defendant does not argue that the court erred in doing so.
DISPOSITION
The judgment is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Hull, J.
/s/
Mauro, J.
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