People v. Smith CA2/4

Filed 1/6/23 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B314928
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. NA115682)
v.
IVORY DEVONKENN SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard M. Goul, Judge. Affirmed and remanded.
J. Kahn, 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, Assistant Attorney General,
Kenneth C. Byrne, Supervising Deputy Attorney General, and Allison H.
Chung, Deputy Attorney General, for Plaintiff and Respondent.
In June 2021, defendant and appellant Ivory Devon Kenneth Smith
was convicted of one count of continuous sexual abuse of D.S., a child under
14 years of age (Pen. Code, § 288.5, subd. (a), count 1);1 two counts of forcibly
raping his live-in girlfriend, L.S. (§ 261, subd. (a)(2), counts 2-3); and one
count of inflicting corporal injury on L.S. (§ 273.5, subd. (a), count 4).
Defendant was sentenced to an overall term of 25 years to life plus 17 years.
On appeal from the judgment of conviction, defendant contends (1) the
matter must be remanded for resentencing on counts 2 and 3 following the
recent amendment to section 1170 by Senate Bill No. 567; and (2) on remand,
the court should exercise its discretion under current section 1385, as
amended by Senate Bill No. 81, to strike his 25-year-to-life sentence on count
1 under the One Strike law (§ 667.61). We agree with the former contention
and reject the latter contention. We vacate the sentences imposed on counts
2 and 3 and remand the cause for resentencing.
FACTUAL BACKGROUND
1. Prosecution Evidence
a. Forcible Rape Counts Involving Defendant’s Girlfriend, L.S.
Defendant and L.S. had been in a romantic relationship since 2016, and
they share two children, N.S. and A.S. Between 2017 and 2020, defendant
spent most nights at L.S.’s Long Beach apartment. Living inside the
apartment during that time were L.S., N.S., A.S., and L.S.’s three other
children, D.S., Je.S, and Jo.S.
L.S. testified that at some point in November 2018, she was laying
down in her bedroom when defendant approached and asked her to have sex.
1 Undesignated statutory references are to the Penal Code.
2
After L.S. declined, he pushed her down and penetrated her vagina with his
penis. L.S. struggled with defendant. “And maybe like a month probably or
so later [L.S.] found out that [she] was pregnant with [N.S.].”
In early November 2020, defendant again forced himself onto L.S. after
she declined to have sex with him. Defendant overpowered L.S., pushed her
onto the bed, and inserted his fingers and penis inside her vagina. During a
recorded interview that took place soon thereafter (which interview was
played for the jury), defendant admitted to the police that he had sex with
L.S. against her will sometime around November of the prior year.
b. Domestic Violence Against L.S.
L.S. also testified about various incidents of domestic violence. In one
incident occurring in November 2018, defendant punched L.S. in the mouth
and stomach. During another argument in early 2020, defendant kicked
L.S.’s back, causing her to “fl[y] forward and almost hit” a metal pole. L.S.
estimated that that defendant had engaged in eight or nine separate acts of
domestic violence against her.
In his November 2020 recorded interview, defendant admitted he
“might have” punched L.S. in the face several days earlier.
c. Sexual Abuse of L.S.’s Daughter, D.S.
D.S. testified that she was 11 years old in March 2020. Sometime that
month, she was watching television in the living room of L.S.’s apartment
when defendant came into the living room, pushed D.S. onto a bed that was
on the floor, and rubbed his “private area” against her “private area.” 2 D.S.
2 D.S. defined “private area” as the area from which a person urinates.
3
recalled three separate incidents occurring between March and November
2020. In the first incident, defendant touched D.S.’s breasts and inserted his
fingers into her vagina. The second time, defendant inserted his fingers and
penis inside D.S.’s vagina while she was babysitting her younger sister. In
the third incident, defendant held D.S’s head as he placed his penis into her
mouth. D.S. estimated that defendant had digitally penetrated her vagina
over 10 different times.
Around November 3, 2020, D.S. informed L.S. and her father about
defendant’s sexual abuse. Several days later, defendant was arrested.
During the recorded police interview, defendant denied sexually abusing D.S.
in any regard.
2. Defense Evidence
Defendant testified on his own behalf and denied committing any sex
offense against D.S. or L.S. Twin sisters who lived with defendant for nine
years while he was dating their mother (not L.S.) testified that defendant had
never molested them.
PROCEDURAL BACKGROUND
By information, defendant was charged with one count of continuous
sexual abuse of D.S., a child under the age of 14 years (§ 288.5, subd. (a),
count 1); two counts of forcibly raping L.S. (§ 261, subd. (a)(2), counts 2-3);
and one count of injuring a spouse, cohabitant, fiancée, girlfriend, or child’s
parent (§ 273.5, subd. (a), count 4). As to count 1, the information also
alleged that defendant committed sex crimes against multiple victims, one of
whom was under 14 years old. (§ 667.61, subds. (e)(4), (j)(2).) Following trial,
4
a jury found defendant guilty as charged and found the special allegations
under section 667.61 to be true.3
The prosecution filed a probation officer’s report setting forth one prior
sustained juvenile delinquency petition and several prior convictions.4 The
probation officer reported six aggravating sentencing factors and no
mitigating factors and recommended the court sentence defendant to the high
base term.
In its sentencing memorandum, the prosecution explained that the
court was required to impose a mandatory 25-year-to-life sentence on count 1
under the One Strike law (§ 667.61).5 On counts 2 and 3, the prosecution
3 The jury also found defendant not guilty of lewd and lascivious acts
upon a child (§ 288, subd. (a), count 5), added as an alternative charge to
count 1; the jury was instructed that it had to find the defendant not guilty
on this count if the jury found him guilty on count 1.
4 According to the probation officer’s report, defendant suffered a
sustained juvenile petition in 2005 for vandalism (§ 594, subd. (a)(1)); a 2007
conviction for possession of marijuana and hash for sale (former Health &
Saf. Code, §§ 11359, 11360, subd. (a)); a 2010 violation of parole and
conviction for felon in possession of a firearm (former §§ 3056, 12021, subd.
(a)(1)); a 2012 conviction for obstructing a public officer (§ 148, subd. (a)(1));
and a 2014 conviction for transporting narcotics for sale (Health & Saf. Code,
§ 11352, subd. (a)).
5 Section 667.61, subdivision (j)(2) provides: “A person who is convicted of
an offense specified in subdivision (c) under one of the circumstances
specified in subdivision (e), upon a victim who is a child under 14 years of
age, shall be punished by imprisonment in the state prison for 25 years to
life.” Section 667.61, subdivision (e)(4) lists as a qualifying circumstance the
fact that “[t]he defendant has been convicted in the present case or cases of
committing an offense specified in subdivision (c) against more than one
victim.” Among the enumerated offenses listed in section 667.61, subdivision
(c) are continuous sexual abuse of a minor (§ 288.5) and forcible rape (§ 261,
5
argued that the court was required to run each sentence consecutively
pursuant to section 667.61, subdivision (i), as each count of forcible rape
occurred on a separate occasion. The prosecution then identified three
aggravating factors supporting upper term sentencing on both counts of
forcible rape: (1) the crimes involved great violence (Cal. Rules of Court, rule
4.421(a)(1));6 (2) defendant engaged in violent conduct that indicates a
serious danger to society (rule 4.421(b)(1)); and (3) defendant’s prior
convictions were numerous or of increasing seriousness (rule 4.421(b)(2)).
The prosecution requested the court impose a total sentence of 42 years to
life.
During the July 15, 2021 sentencing hearing, defense counsel
acknowledged the mandatory 25-year-to-life sentence on count 1. As to
counts 2 through 4, defense counsel noted defendant qualified for mid-term
sentencing, but proposed that if the court were to impose the maximum
sentence on those counts, it make the sentences concurrent, or in the
alternative impose consecutive low-term sentences.
The court stated it had read and considered the probation officer’s
report and the prosecution’s sentencing memorandum. It then stated: “The
court can find no mitigating factors other than the fact the defendant does
not have a serious or violent criminal record. [¶] The facts of this case are
purely egregious. They involve great violence as these are all serious, violent
offenses. [¶] In addition, there are multiple victims which the jury found
true. [¶] Thirdly, one of the victims was a child, and the betrayal of trust in
subd. (a)(2)). (See In re Vaquera (2019) 39 Cal.App.5th 233, 235, review
granted Nov. 26, 2019, S258376.)
6 Subsequent references to rules are to the California Rules of Court.
6
this case is particularly disturbing to this court listening to the testimony.
[¶] The defendant was involved with the mother and sexually abuses the
child. Physically abused the mother and forced her to submit to sexual acts
against her will. [¶] Had this been one single occurrence and a loss of
judgment or attributable to alcohol or drugs on one bad day, it would be one
thing. But this is systematic periodic abuse over a longer period of time.”
On count 1, the court sentenced defendant to 25 years to life. On
counts 2 and 3, the court imposed two consecutive eight-year sentences (the
upper term). On count 4, the court stated it would have chosen the high
term, but was required by law to impose one-third the middle term (one
year), which was also to run consecutively. The total sentence imposed was
42 years to life. Defendant timely appealed.
DISCUSSION
1. Remand for Resentencing Pursuant to Senate Bill No. 567
Defendant contends that the recent enactment of Senate Bill No. 567
(2021–2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (S.B. 567) requires a
remand for resentencing on counts 2 and 3, the forcible rape convictions
involving victim L.S., pursuant to current section 1170, subdivision (b), as
amended. We agree.
Prior to January 2022, section 1170 provided that the choice between a
sentencing triad “shall rest within the sound discretion of the court,” with the
court to determine which term “best serves the interests of justice.” (Former
§ 1170, subd. (b).) When choosing a term, the sentencing court could rely on
the record, the probation officer’s report, other reports, statements in
aggravation or mitigation, and any further evidence introduced at the
sentencing hearing. (Ibid.) The sentencing court was also to consider the
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aggravating and mitigating circumstances set forth in the California Rules of
Court. (See rules 4.403, 4.409, 4.420, 4.421, 4.423.)
Effective January 1, 2022, S.B. 567 amended section 1170 in several
respects. As amended, current section 1170 requires a sentencing court to
order imposition of a sentence not to exceed the middle term unless “there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (Id., subds. (b)(1), (b)(2).) However, “the court may consider the
defendant’s prior convictions in determining sentencing based on a certified
record of conviction without submitting the prior convictions to a jury.” (Id.,
subd. (b)(3).)
The parties agree, as do we, that the amendments to section 1170
wrought by S.B. 567 retroactively apply to the upper-term sentences imposed
on both counts of forcible rape. Defendant contends that because the
aggravating circumstances cited by the trial court when sentencing him to
the upper term on these counts were not based on facts that were stipulated
to by defendant or found true beyond a reasonable doubt by the jury, we must
remand the case for resentencing. The Attorney General does not dispute
that the trial court relied on aggravating circumstances that were not
stipulated to or found true by the jury, but asserts that remand is not
required as any error under the current law is harmless.
The standard for harmless error under current section 1170 is subject
to disagreement among our sister courts. Under one standard, the error is
harmless if the reviewing court determines beyond a reasonable doubt that
the jury, applying the beyond-a-reasonable-doubt standard, would have found
8
true at least one aggravating circumstance. (People v. Flores (2022) 75
Cal.App.5th 495, 500–501 (Flores); see also People v. Salazar (2022) 80
Cal.App.5th 453, 465, review granted Oct. 12, 2022, S275788.)
Under another standard, the reviewing court considers first whether
the jury would have found true beyond a reasonable doubt “every factor on
which the court relied” beyond a reasonable doubt. (People v. Lopez (2022) 78
Cal.App.5th 459, 466 (Lopez), review den. July 20, 2022; see People v. Ross
(2022) __ Cal.App.5th __ [2022 WL 17974351, *1, *7, fn. 8] (Ross).)7 If so, the
error is harmless; if not, the court considers whether it is reasonably probable
that the trial court would nevertheless have exercised its discretion to select
the upper term “based on a single permissible aggravating factor or on some
constellation of permissible aggravating factors,” rather than all of the factors
on which it previously relied. (Lopez, at p. 468; see id. at p. 467, fn. 11.) If
the answer to that question is yes, the error is harmless; if the answer is no,
then the error is not harmless, and remand for resentencing is required.
(Ibid.; accord, People v. Wandrey (2022) 80 Cal.App.5th 962, 982 & fn. 34,
review granted Sept. 28, 2022, S275942.)
Several courts have framed the harmless error analysis “somewhat
differently.” (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1113 (Zabelle);
see People v. Dunn (2022) 81 Cal.App.5th 394, 408–409 (Dunn), review
7 While not expressly disapproving its prior decision in Flores, “[u]pon
reflection” the same court that issued the Flores decision recently adopted the
alternative approach taken in Lopez. (See Ross, supra, __ Cal.App.5th __
[2022 WL 17974351 at p. *7 & fn. 8 [“we concur in the Lopez analysis, which
asks at the first step whether a reviewing court can conclude beyond a
reasonable doubt that a jury would have found true beyond a reasonable
doubt all of the aggravating factors the trial court relied on, not simply at
least one aggravating factor”].)
9
granted Oct. 12, 2022, S275655.) Those courts have applied the standard for
a Sixth Amendment violation described in Chapman v. California (1967) 386
U.S. 18 (Chapman), to determine if a jury, applying the beyond-a-reasonable-
doubt standard, would have found true at least one single aggravating
circumstance. (Zabelle, at pp. 1113, 1114; Dunn, at p. 409.) Then, using a
different standard of prejudice for state law error only (People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson)), the court determines whether it is
reasonably probable for each remaining aggravating fact that the jury would
have found the fact not true. (Zabelle, at p. 1112; Dunn, at p. 409.) “[W]ith
the aggravating facts that survive this review, [the reviewing court must]
consider whether it is reasonably probable that the trial court would have
chosen a lesser sentence had it considered only these aggravating facts.”
(Zabelle, at p. 1112; but see Dunn, at p. 410 [if all aggravating circumstances
would have been proven to their respective standards under Chapman and
Watson, any error is harmless; if not, the court must determine under Watson
if the court would have imposed a sentence other than the upper term based
on the aggravating circumstances proven on review].)
We need not take a side in this dispute, as we conclude that the
circumstances present in this case fail to establish harmless error even under
the “single aggravating circumstance” test adopted in Flores.
When imposing sentence collectively on all the counts, the court
generally stated that (1) the facts of the case were “purely egregious”; (2) the
facts involved “great violence as these are all serious, violent offenses”; (3) the
jury found true that defendant committed crimes against multiple victims;
(4) one of the victims was a child; (5) “the betrayal of trust in this case [was]
particularly disturbing”; and (6) “this [was] systematic periodic abuse over a
longer period of time.”
10
The Attorney General first contends that because defendant did not
present any evidence to dispute these findings, the jury “unquestionably
would have [found them] true beyond a reasonable doubt.” We disagree.
To begin with, the Attorney General’s argument assumes that despite
the amendments to section 1170, subdivision (b), defendant’s litigation
strategy would remain the same today as it did several years ago. Our
Supreme Court has cautioned against “necessarily assum[ing] that the record
reflects all of the evidence that would have been presented had aggravating
circumstances been submitted to the jury.” (People v. Sandoval (2007) 41
Cal.4th 825, 839 (Sandoval).) Under the amended version of section 1170,
subdivision (b), defendant’s “strategy might have been different had the
aggravating circumstances been tried under a beyond-a-reasonable-doubt
standard of proof to a trier of fact.” (Id. at p. 840; see Lopez, supra, 78
Cal.App.5th at p. 466 [“Because the prior version of the determinate
sentencing law . . . did not require the prosecution to present evidence
directly related to the aggravating factors at trial, the evidence in the record
does not permit us to assess whether a jury would have found these factors
true beyond a reasonable doubt. Further, [defendant] would have had no
reason to present evidence that might have contradicted evidence supporting
[the] truth of the facts underlying the aggravating factors relied on by the
trial court”].)
Turning to the aggravating factors identified above, we cannot conclude
that the jury would have found any of those that were permissible factors to
be true beyond a reasonable doubt.
We begin with the trial court’s reference to the fact that the case
involved multiple victims. The jury found true beyond a reasonable doubt the
allegation that the “crimes [charged in counts 1, 2, 3, and 5] were committed
11
against more than one victim in this case.” That jury finding was used as a
basis for imposing a sentence of 25 years to life on count 1 pursuant to the
One Strike law (§ 667.61, subds. (c), (e)(4), (j)(2)).
“Multiple victims” is not currently listed among the aggravating
circumstances under rule 4.421, which lists factors that may be considered in
part in determining whether to impose the upper term for a particular count.
(See rules 4.420, 4.421.) In a prior amendment to what is now rule 4.421, the
advisory committee comment “noted, ‘Former subdivision (a)(4), concerning
multiple victims, was deleted to avoid confusion; cases in which that possible
circumstance in aggravation was relied on were frequently reversed on
appeal because there was only a single victim in a particular count.’” (People
v. Calhoun (2007) 40 Cal.4th 398, 405–406 (Calhoun).) However, “[n]either
section 1170 nor the California Rules of Court attempt to provide an inclusive
list of aggravating circumstances. Thus, a trial court is free to base an upper
term sentence upon any aggravating circumstance that (1) the court deems
significant and (2) is reasonably related to the decision being made.” (People
v. Moberly (2009) 176 Cal.App.4th 1191, 1196; see rule 4.421(c) [besides the
enumerated circumstances in aggravation, a court may rely on “[a]ny other
factors statutorily declared to be circumstances in aggravation or that
reasonably relate to the defendant or the circumstances under which the
crime was committed”]; see also rule 4.408(a).) “[A]lthough multiple victims
is no longer expressly enumerated as a circumstance in aggravation in the
California Rules of Court, the existence of multiple victims continues to be a
valid aggravating circumstance that would support the imposition of the
upper term.” (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1326, fn.
omitted; accord People v. Valenzuela (1995) 40 Cal.App.4th 358, 365
(Valenzuela).)
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However, reliance on the multiple-victim aggravating circumstance as
to counts 2 and 3 was not appropriate under the particular facts of this case.
The sentences imposed on these counts were for two separate criminal acts of
forcibly raping L.S., but they did not involve multiple victims. Courts
generally have held that a multiple-victim aggravating circumstance does not
apply if there is only one victim charged for each criminal count. (See e.g.,
People v. Lawson (1980) 107 Cal.App.3d 748, 758 [holding “the [robbery] . . .
did not involve multiple victims. It involved one victim. The court may not
find that the crime at issue, singular not plural, involved multiple victims . . .
by adding victim(s) from independent crimes”].) An exception to this general
rule applies where “‘multiple crimes [against different victims] are so closely
connected in time and place as to comprise a single criminal transaction’”
(Valenzuela, supra, 40 Cal.App.4th at p. 363), or where “a single act” caused
injury to multiple people, even if each of the victims was listed in a separate
count (see Calhoun, supra, 40 Cal.4th at pp. 405–408). It cannot be said that
the sexual abuse against D.S. was transactionally related to either of the two
rape offenses against L.S. Accordingly, the “multiple victims” aggravating
factor could not lawfully be relied upon to justify imposing the upper terms
on counts 2 and 3.
Similarly, the fact that “one of the victims was a child” could not
appropriately be an aggravating factor to impose upper-term sentences on
the two rape counts involving L.S., an adult. As to the sentence on these
counts, it is irrelevant that the jury found true the allegation that D.S. was
under age 14.
With respect to the remaining factors relied upon by the trial court, we
are not persuaded that the jury would have found them true beyond a
reasonable doubt. The court made subjective determinations that the facts
13
were “purely egregious” and involved “great violence,” and that defendant
betrayed trust in a “particularly disturbing” manner and engaged in
“systematic periodic abuse.” In other words, these factors were “not subject
to clear standards, and often entail[ed] a subjective assessment of the
circumstances rather than a straightforward finding of facts.” (Sandoval,
supra, 41 Cal.4th at p. 840.) “[T]o the extent a potential aggravating
circumstance at issue in a particular case rests on a somewhat vague or
subjective standard, it may be difficult for a reviewing court to conclude with
confidence that, had the issue been submitted to the jury, the jury would
have assessed the facts in the same manner as did the trial court.” (Ibid.)
We find this concern applicable to the circumstances present here.8
Thus, because we cannot say beyond a reasonable doubt that the jury
would have made the same findings as the trial court to support the upper-
term sentences imposed on counts 2 and 3, we conclude that the error is not
harmless. We vacate the sentences imposed on counts 2 and 3 and remand
the matter for resentencing consistent with current section 1170, subdivision
(b).
8 For instance, the court’s statement that the facts of the case involved
“great violence as these are all serious, violent offenses,” suggests that the
court made no finding as to whether defendant inflicted violence on L.S.
beyond the quantum of force required to commit each count of forcible rape.
(See rule 4.420(h) [courts may not use “[a] fact that is an element of the
crime” to impose a particular term]; § 261, subd. (a)(2) [forcible rape defined
as sexual intercourse “accomplished against a person’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on
the person or another”].)
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2. Senate Bill No. 81
Defendant contends that because we must remand the matter for
resentencing for compliance with S.B. 567, the trial court must exercise its
newly authorized discretion pursuant to section 1385, as amended by Senate
Bill No. 81 (2020-2021 Reg. Sess.) (Stats. 2021, ch. 721, § 1) (S.B. 81), to
strike the 25-year-to-life sentence imposed on count 1 (§ 288.5, subd. (a)
[continuous abuse of a child]). We disagree.
S.B. 81 amended section 1385 “to specify factors that the trial court
must consider when deciding whether to strike enhancements from a
defendant’s sentence in the interest of justice.” (People v. Sek (2022) 74
Cal.App.5th 657, 674 (Sek); accord, Stats. 2021, ch. 721, § 1.) As amended,
section 1385, subdivision (c)(1), now provides: “Notwithstanding any other
law, the court shall dismiss an enhancement if it is in furtherance of justice
to do so, except if dismissal of that enhancement is prohibited by any
initiative statute.” This requirement “appl[ies] to sentencings occurring after
the effective date of” S.B. 81 (Jan. 1, 2022). (Stats. 2021, ch. 721, § 1,
enacting § 1385, subd. (c)(7); see Sek, at p. 674.)
Defendant was sentenced to 25 years to life on count 1 pursuant to the
One Strike law, section 667.61, “an alternative sentencing scheme that
applies to specified felony sex offenses.” (People v. Reyes (2016) 246
Cal.App.4th 62, 79 (Reyes).) “‘The purpose of the One Strike law is “to ensure
serious and dangerous sex offenders would receive lengthy prison sentences
upon their first conviction,” “where the nature or method of the sex offense
‘place[d] the victim in a position of elevated vulnerability.’”’” (Ibid., italics
omitted.) “A defendant is . . . subject to the One Strike law’s sentencing
provisions if they commit one of nine listed sexual offenses [including]
continuous sexual abuse of a child, in violation of section 288.5.” (People v.
15
Betts (2020) 55 Cal.App.5th 294, 299–300; see § 667.61, subd. (c)(9).) “[T]he
law mandates the harshest penalties” for defendants convicted of this offense
“if the victim was under 14 years of age” (Betts, at p. 300), a fact which the
jury found to be true as to count 1. Further, under subdivision (j)(2) of
section 667.61, a defendant convicted of this crime “under one of the
circumstances specified in subdivision (e), upon a victim who is a child under
14 years of age, shall be punished by imprisonment in the state prison for 25
years to life.” Accordingly, as defense counsel conceded at defendant’s
sentencing, the One Strike law mandated the 25-year-to-life sentence for
count 1.
The electorate and Legislature have specifically exempted such
sentences pursuant to the One Strike law from the reach of section 1385. As
enacted by the voters in 2006 in Proposition 83,9 section 667.61, subdivision
(g) provides: “Notwithstanding Section 1385 . . . , the court shall not strike
any allegation, admission, or finding of any of the circumstances specified in
subdivision (d) or (e) [of § 667.61] for any person who is subject to
punishment under this section.” (Prop. 83, § 12, approved Nov. 7, 2006; see
Reyes, supra, 246 Cal.App.4th at pp. 80–82 [holding that court lacked
discretion under former § 1385 to strike One Strike sentence of life without
possibility of parole imposed pursuant to § 667.61, subd. (l)]; see also People
v. Hammer (2003) 30 Cal.4th 756, 761 [“The law expressly divests trial courts
of authority to avoid these severe sentences [under the One Strike law]: it
9 “At the November 7, 2006 General Election, the voters approved
Proposition 83, an initiative measure. (See Deering’s Ann. Welf. & Inst. Code
(2007 supp.) appen. foll. § 6604, p. 43.) Proposition 83 was known as ‘The
Sexual Predator Punishment and Control Act: Jessica’s Law.’ (Voter
Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.)”
(Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1281.)
16
provides that courts are barred from exercising their traditional discretion to
‘strike’ any of the triggering circumstances specified in the One Strike law”];
see generally In re Greg F. (2012) 55 Cal.4th 393, 406 [“When the Legislature
intends for a statute to prevail over all contrary law, it typically signals this
intent by using phrases like ‘notwithstanding any other law’ or
‘notwithstanding other provisions of law’”].)
S.B. 81 does not bestow trial courts with new authority to strike One
Strike law sentences. Rather, S.B. 81 explicitly reinforces that courts may
not dismiss an enhancement pursuant to section 1385 “if dismissal of that
enhancement is prohibited by any initiative statute” (§ 1385, subd. (c)(1)),
such as Proposition 83. Indeed, in discussing S.B. 81, the Senate Committee
on Public Safety stated it was aware that “enhancements that may not be
dismissed by the court due to express language provided by the initiative
include those enacted by Proposition 83, pertaining to sex offenses, . . . passed
in 2006.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 81
(2021-2022 Reg. Sess.), p. 6.)
The trial court thus lacks authority under current section 1385 to
strike the sentence imposed for count 1 pursuant to the One Strike law.
Thus, on remand, the mandatory 25-year-to-life sentence shall remain
undisturbed.
//
//
//
//
//
//
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DISPOSITION
Defendant’s sentences on counts 2 and 3 are vacated, and the matter is
remanded for resentencing on those counts in accordance with section 1170,
as amended by S.B. 567. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STONE, J.*
We concur:
COLLINS, Acting P. J.
CURREY, J.
*Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
18