Opinion
F085239
04-11-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS BARRCENA, Defendant and Appellant.
Rachel Varnell, 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 Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F21907480 Jonathan B. Conklin, Judge.
Rachel Varnell, 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 Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
A second amended information was filed on September 28, 2022, charging Jose Luis Barrcena with battery causing serious bodily injury on Sergeant Gary Coffey (Pen. Code, § 243, subd. (d), count 1), resisting the order of an executive officer (§ 69, counts 2 &3), and misdemeanor tampering with fire alarm apparatus (§ 148.4, subd. (a)(1), count 4). Count 1 alleged an enhancement for inflicting great bodily injury (§ 12022.7, subd. (a)), a violent felony within the meaning of section 667.5, subdivision (c)(8). A prior serious felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i) &1170.12, subds. (a)-(d)) was also alleged. A jury found Barrcena guilty of the first three counts, including the great bodily injury enhancement, and acquitted Barrcena of count 4. The jury also found the prior serious felony conviction allegation true.
Unless otherwise designated, all statutory references are to the Penal Code.
The trial court denied Barrcena's motion to strike the great bodily injury enhancement on count 1 but did not sentence Barrcena on that allegation pursuant to section 654. The court also denied Barrcena's motion to strike the prior strike serious felony allegation. The court sentenced Barrcena to the midterm of three years on count 1, doubled to six years pursuant to the Three Strikes law. The court stayed punishment on count 2 pursuant to section 654 and imposed a sentence of two years on count 3 to be served concurrently to count 1. The court granted Barrcena 816 days of custody credits and imposed fines and fees not in contention on appeal.
The superior court prepared an amended abstract of judgment increasing Barrcena's concurrent sentence on count 3 from one year four months to two years on June 2, 2023.
Barrcena contends: (1) the trial court erred in failing to completely strike his great bodily injury enhancement (§ 12022.7, subd. (a)) because causing great bodily injury is an element of section 243, subdivision (d). Barrcena further contends: (2) the trial court abused its discretion in failing to strike his prior serious felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero); (3) the trial court erred in failing to strike both his prior strike conviction and the great bodily injury enhancement pursuant to Senate Bill No. 81 (Stats. 2021, ch. 721, § 1; § 1385, subd. (c)(7)); (4) his trial counsel was ineffective for failing to make motions to strike his prior serious felony conviction and the great bodily injury enhancement.
After requesting supplemental briefing on the first issue, we conclude the trial court did not err in failing to strike the great bodily injury enhancement alleged as an enhancement to the count of battery causing serious bodily injury. The trial court correctly stayed Barrcena's sentence on the great bodily injury enhancement found true in count 1 pursuant to section 654. We reject Barrcena's other allegations of sentencing error and affirm the judgment.
FACTS
At 3:30 p.m. on September 21, 2021, Officer Hill Magpayo was on duty at Coalinga State Hospital and responded to duress and fire alarms from Barrcena's room. Water was coming from Barrcena's room, flooding the hallway. Other officers were yelling at Barrcena to open the door and exit the room. Officers were trying unsuccessfully to open the door. Only staff can lock the door. There was a window through which Magpayo could see that the solid steel bed was next to the door with electrical cords, curtains, and torn bedding securing the doorknob to the bed. Magpayo told Barrcena to open the door or officers would deploy pepper spray.
Magpayo could see Barrcena walking around the room. It sounded like Barrcena was breaking things. There was a lot of noise from his room. Officers were attempting to pry the door open with a baton as another officer tried to cut the cords with scissors. As the officers were trying to open the door, Barrcena was throwing objects at them that he made by breaking up shelving from his wardrobe.
There was an opening in the window and a small opening in the doorway. Given his erratic behavior, Magpayo believed Barrcena was under the influence of a controlled substance or narcotics. Magpayo threw multiple OC containers into the room. An OC container is a pressurized can with a trigger that deploys a stream of pepper spray. The first can emptied to no effect because Barrcena was hiding from Magpayo and the spray did not directly reach Barrcena's face. To defeat the pepper spray, Barrcena had a rag or piece of cloth around his face, kept throwing water on his face, and was also throwing baby powder into the air. Magpayo used four cans of pepper spray. It took 15 minutes before officers could enter the room with riot shields.
Magpayo entered the room behind two officers holding shields. Entering the room was a challenge because the metal bed was still in front of the doorway. Magpayo saw Barrcena in the corner of the room elevated, standing on something that could have been a chair. Barrcena threw something that went past Magpayo's head. Magpayo ducked. The object, a board about 16 inches by 8 inches, cut his head and hit Sergeant Coffey in the head near his eyes. Coffey was directly behind Magpayo.
As Magpayo ducked, he heard another officer yell "officer down." Coffey was covered in blood. It took six officers to secure Barrcena. Securing Barrcena was difficult because he was resisting officers, the metal bed was in the middle of the room, and the floor was covered in water. Magpayo was also bleeding from his head. Magpayo was sent home where he experienced a headache for a day or two. He went back to work on the third day after the incident.
Sergeant Gary Coffey had worked as a police officer for Coalinga State Hospital for 15 years and prior to that as a psychiatric technician at Atascadero State Hospital. Coffey had no prior negative contacts with Barrcena. Coffey felt there was some urgency to get to Barrcena because Barrcena was hitting his head against the wall and was harming himself. Barrcena was breaking up the closet in his room.
As soon as officers got the door open, Barrcena started throwing things. As they entered the room Magpayo was in front of Coffey, something hit Coffey from above and his eyesight went black. The object thrown at Coffey hit him in the face, it was blunt and hit hard. Coffey fell backward. Coffey felt blood on his face, choked on the blood, and could not breathe. The wood that hit Coffey's face also crushed his eyeglasses which in turn punctured the top of his head.
Coffey was briefly examined in the Urgent Care Room before being transported by ambulance for treatment at Adventist Health in Hanford. On a scale of one to 10, Coffee described the pain as above a 10. He had difficulty breathing, headaches, and missed just over two weeks of work due to his injuries. It took time for Coffey to see a specialist. Coffey experienced constant headaches, difficulty sleeping, and numbness to his face. Coffey did not have surgery until May of 2022.
Dr. Mike Shin was the ear and nose specialist who treated Coffey for his injuries. Dr. Shin diagnosed Coffey with a nasal fracture, deviated septum to the left side, and turbinate hypertrophy-enlargement of the soft tissue filters inside the nose. The nasal bone overlying the mid portion of the face between the eyes was fractured in multiple small pieces. Because Dr. Shin initially saw Coffey a month after the injury, he had to wait six months for the bones to heal before he could operate on Coffey to address the deformity of the outside of the nose as well as the deviated septum which made it difficult for Coffey to breathe. The surgery took two hours to perform. It was done under general anesthesia and intubation. Dr. Shin had to surgically correct the septum and perform an osteotomy-breaking the nasal bones to correct the nasal bone deformity. Dr. Shin considered the surgery a success.
Barrcena testified that he tied the extension cords to his bed because he thought his life was in danger. Barrcena said some of the hospital workers were acting weird, as well as the patients. Barrcena thought he heard employees say something like Barrcena did not participate so they could "kill him here or take him away in an ambulance." Barrcena heard patients talking about what they were going to do to him. Barrcena began pacing back and forth.
After hearing things about the employees wanting to do things to him because he did not cooperate, Barrcena took cords he had in a bag, moved his bed to the door so it would not open, and tied the cords to the doorknob. Barrcena said he caused the sprinklers in his room to go off so the officers would come. Barrcena wanted to talk to several employees. Employees came up to his room wanting to talk to him, but Barrcena did not open the door because of the threats against his life. Barrcena used a pencil to poke the sprinklers.
Barrcena denied he was ever told to open his door. Barrcena explained that they were pumping something with smoke into his room, but it did not look like a tear gas can. Barrcena used clothes, like a handkerchief or bandana, and wet everything to protect himself from the effects of the spray. Barrcena denied throwing his personal property or banging his head on the wall. Barrcena admitted breaking his furniture and throwing things at the officers because they were spraying him with something that made his eyes burn. Some of the officers were being aggressive toward Barrcena, so he threw a piece of furniture to protect himself. The officers pinned Barrcena to the floor. Barrcena denied resisting them.
APPLICATION OF GREAT BODILY INJURY ENHANCEMENT
Introduction
Defense counsel made a motion at sentencing for the trial court to strike the great bodily injury enhancement to Barrcena's conviction for section 243, subdivision (d). At the sentencing hearing, the prosecutor argued that the sole purpose for alleging great bodily injury under section 12022.7 was to make it clear that Barrcena personally inflicted the injury, thereby making it a strike. Defense counsel pointed out there was a split of authority on whether the great bodily injury enhancement should be stricken when it was alleged with a violation of section 243, subdivision (d). Defense counsel also moved to have the enhancement stricken pursuant to section 1385.
The trial court ruled it was not imposing punishment on the great bodily injury enhancement pursuant to section 654, but would not strike it. The court stated it would not exercise discretion under section 1385 to strike the enhancement. Barrcena contends, and the People initially conceded, the trial court erred in failing to strike the great bodily injury enhancement. We requested supplemental briefing in light of a recent California Supreme Court authority. The People have rescinded their earlier concession and now maintain that the trial court did not err in refusing to strike the great bodily injury enhancement. We agree with the People's position and reject Barrcena's argument.
Analysis
Section 12022.7 provides in pertinent part that "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." (§ 12022.7, subd. (a).) Subdivision (g) of section 12022.7 states the enhancement "shall not apply if infliction of great bodily injury is an element of the offense." Subdivision (f) of section 12022.7 defines a great bodily injury as "a significant or substantial physical injury."
Battery is punishable as a felony under section 243, subdivision (d) when, "serious bodily injury is inflicted" upon the victim. As used in section 243, subdivision (d), a serious bodily injury includes, "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." (§ 243, subd., (f)(4).)
In his opening brief, Barrcena argued that People v. Hawkins (1993) 15 Cal.App.4th 1373 (Hawkins) was controlling. Hawkins held that where a defendant is convicted of battery causing serious bodily injury and a great bodily injury enhancement for the same act, serious bodily injury and great bodily injury have substantially the same meaning. Hawkins found that great bodily injury is an element of battery under section 243, subdivision (d). (Hawkins, supra, 15 Cal.App.4th at p. 1375.) Hawkins concluded that it was error to sentence the defendant to a consecutive prison term for causing great bodily injury. (Id. at p. 1376.)
Recently, our Supreme Court considered whether serious bodily injury and great bodily injury were equivalent. (In re Cabrera (2023) 14 Cal.5th 476, 484 (Cabrera).) In Cabrera, the defendant was convicted of battery causing serious bodily injury, but the jury failed to reach a verdict on the great bodily injury enhancement. Cabrera's sentence depended in part on whether his convictions counted as serious felonies. If they did, because of prior serious felonies, he faced a five-year sentencing enhancement under section 667, subdivision (a)(1). (Cabrera, supra, 14 Cal.5th at p. 482.)
The prosecutor argued that the nature of the victim's injuries, which resulted in a concussion, constituted great bodily injury. The prosecutor further argued that great bodily injury could be inferred from the jury's finding of serious bodily injury and the two were equivalent, citing People v. Burroughs (1984) 35 Cal.3d 824, 831 (Burroughs) and Hawkins, supra, 15 Cal.App.4th 1373. (Cabrera, supra, 14 Cal.5th at p. 482.) The trial court was not persuaded by defense counsel's argument that before Cabrera was subjected to a more severe punishment he was entitled to a jury finding. The trial court found Cabrera's current convictions were serious because the victim suffered great bodily injury and imposed the five-year enhancement. (Ibid.)
The court in Cabrera found the trial court's finding of great bodily injury invaded the province of the jury and was contrary to the United States Supreme Court's holding in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). (Cabrera, supra, 14 Cal.5th at pp. 480, 491-492.) The Cabrera opinion specifically noted that the jury found the defendant committed battery with serious bodily injury but failed to reach a verdict on whether this constituted great bodily injury and its verdict did not establish that the defendant committed great bodily injury. (Cabrera, supra, 14 Cal.5th at p. 489.) Whether the jury rejected great bodily injury or failed to find it, Cabrera found "judicial factfinding to fill the gap violated Cabrera's right to have a jury find every fact increasing the penalty for his offense." (Id. at p. 490.)
Cabrera noted serious bodily injury and great bodily injury have been referred to as" 'essentially equivalent.'" (Cabrera, supra, 14 Cal.5th at p. 484, citing Burroughs, supra, 35 Cal.3d at p. 831.) Cabrera also acknowledged there are some differences in the statutory definitions. (Cabrera, supra, 14 Cal.5th at p. 484, citing People v. Knoller (2007) 41 Cal.4th 139, 143, fn. 2.) The terms have separate and distinct statutory definitions notwithstanding their substantial overlap. (Cabrera, supra, 14 Cal.5th at p. 484.) The statutory definition of great bodily injury does not include a list of injuries as does the definition of serious bodily injury. (Ibid., citing People v. Santana (2013) 56 Cal.4th 999, 1008.)
Cabrera noted the California Supreme Court has declined invitations to decide whether a particular type of injury amounts to great bodily injury as a matter of law because what meets the statutory standard is a factual question for the jury. (Cabrera, supra, 14 Cal.5th at p. 484.) Cabrera made the following observations in part analyzing the ruling in Hawkins and similar cases:
"The holding in this case does not call into question our assertion in Burroughs that serious bodily injury and great bodily injury are' "essentially equivalent elements."' (Burroughs, supra, 35 Cal.3d at p. 831.) Nor do we express an opinion on cases that have relied on that assertion in other contexts. For example, the Courts of Appeal have long construed Penal Code section 12022.7, subdivision (g)'s bar on imposing the great bodily injury enhancement when 'infliction of great bodily injury is an element of the offense' to mean that the enhancement may not be imposed where serious bodily injury is an element of the underlying offense. (See, e.g., People v. Beltran (2000) 82 Cal.App.4th 693, 696-697 ... Hawkins, supra, 15 Cal.App.4th at pp. 1375-1376.) In Hawkins, the court stated that great bodily injury and serious bodily injury have 'substantially the same meaning' and on that basis concluded that 'great bodily injury is indeed an element of battery under . section 243, subdivision (d).' (Hawkins, at p. 1375.) Hawkins was decided before Apprendi, and the degree of similarity that Hawkins assigned to these terms in reaching its conclusion says nothing about the degree of similarity they must have to satisfy Apprendi. Even if it is sufficient for serious bodily injury and great bodily injury to be 'substantially the same' (Hawkins, at p. 1375, italics added) for purposes of applying Penal Code section 12022.7, more is required to satisfy Apprendi's strict allocation of roles between judge and jury under the Sixth Amendment." (Cabrera, supra, 14 Cal.5th at pp. 490-491.)
Cabrera did not "express an opinion" on cases that have relied on the assertion that serious bodily injury and great bodily injury are equivalent. It discussed Hawkins at some length, including Hawkins's holding that the element of serious bodily injury is the same as great bodily injury for purposes of applying a great bodily injury enhancement which is prohibited by subdivision (g) of section 12022.7, without overruling it. Cabrera also did not disavow prior statements from the California Supreme Court and Courts of Appeal that serious bodily injury and great bodily injury are essentially equivalent and have substantial overlap.
Cabrera, however, found serious bodily injury to be distinct from great bodily injury after reviewing the relevant legislative history. Cabrera also rejected the Attorney General's argument that serious bodily injury necessarily established great bodily injury. (Cabrera, supra, 14 Cal.5th at pp. 486-487.) Cabrera disapproved of two other Court of Appeal decisions to the extent they concluded serious bodily injury always constitutes great bodily injury. (Id. at p. 492, disapproving People v. Villarreal (1985) 173 Cal.App.3d 1136 &People v. Moore (1992) 10 Cal.App.4th 1868.)
We question the vitality of Hawkins given the rationale of Cabrera. As the court observed in comparing serious bodily injury to great bodily injury, "[n]ear equivalence does not mean that a finding of serious bodily injury necessarily entails great bodily injury" and the Sixth Amendment bars courts from looking beyond the verdict to find that a serious bodily injury constituted great bodily injury. (Cabrera, supra, 14 Cal.5th at p. 492.) Cabrera further noted that:
"[N]othing we say here undermines our suggestion in dicta in People v. Sloan (2007) 42 Cal.4th 110 [parallel citation omitted] that if we were to consider a great bodily injury enhancement as part of the underlying offense for the purpose of either constitutional double jeopardy protections or the judicially created rule prohibiting multiple convictions for necessarily included offenses, a conviction for willful infliction of corporal injury on a spouse with such an enhancement 'would effectively establish the elements of ... battery with serious bodily injury.' (Id. at p. 117.) Our statement in Sloan rested on the assumption that all great bodily injuries are serious bodily injuries. Here we are considering the converse question of whether all serious bodily injuries are great bodily injuries. If anything, we would seem to cast doubt on our dicta in Sloan if we were to agree with the Attorney General that serious bodily injury necessarily establishes great bodily injury." (Cabrera, supra, 14 Cal.5th at p. 491.)
Cabrera's analysis casts doubt on whether great bodily injury is an element of battery causing serious bodily injury. Even though Cabrera did not expressly disapprove Hawkins and did not reach the issue Hawkins resolved, the clear rationale of Cabrera is that although a great bodily injury can include a serious bodily injury, the converse is not true-a serious bodily injury does not include a great bodily injury. Therefore, great bodily injury cannot be an element of section 243, subdivision (d).
The jury here found two allegations true-that Barrcena committed battery with serious bodily injury (§ 243, subd. (d)) and that he caused a great bodily injury (§ 12022.7, subd. (a)). The findings were for the same conduct that injured Sergeant Coffey and required two hours of surgical procedures to repair.
The case of In re Jose H. (2000) 77 Cal.App.4th 1090 (Jose H.) is instructive. The juvenile defendant there was adjudicated in count I to have committed an assault with force likely to cause great bodily injury (§ 245, subd. (a)) and in count II to have committed battery with serious bodily injury (§ 243, subd. (d)) with an enhancement on the same count for causing great bodily injury (§ 12022.7). (Jose H., at p. 1092.)
In an issue not directly related to the point presented here, Jose H. argued he could not be convicted of both counts because count II was a necessarily included count in count I. (Jose H., supra, 77 Cal.App.4th at p. 1093.) Jose H. found assault with force likely to cause great bodily injury is not a lesser included offense of battery with serious bodily injury and the juvenile court properly sustained both counts. (Id. at pp. 10951096.)
Jose H. contended that a charge of battery with serious bodily injury could not be enhanced by adding a great bodily injury allegation. Relying on Hawkins and People v. Otterstein (1987) 189 Cal.App.3d 1548 (Otterstein), Jose H. argued that he could not be charged with both a violation of section 243, subdivision (d) and section 12022.7, and the great bodily injury enhancement should be stricken. Jose H. found that Hawkins and Otterstein only stood for the proposition that a court could not impose a separate sentence for a great bodily injury enhancement when it is charged with battery causing serious bodily injury based on the same act. Jose H. noted that Hawkins did not vacate the enhancement, rather, it remanded the case for resentencing. (Jose H., supra, 77 Cal.App.4th at p. 1096.)
Jose H. also noted that Otterstein involved a plea agreement wherein the defendant admitted the great bodily injury enhancement. (Jose H., supra, 77 Cal.App.4th at p. 1096.)
In his opening brief, Barrcena relies on People v. Hawkins (2003) 108 Cal.App.4th 527, 531-532 (Hawkins II). Hawkins was convicted of violating section 243, subdivision (d), acquitted of section 422 allegations, and a section 12022.7 enhancement allegation was not submitted to the jury. (Hawkins II, supra, at p. 529.) The section 243, subdivision (d) conviction did not qualify as a violent felony under section 667.5, subdivision (c) but the prosecutor argued that because a great bodily injury enhancement under section 12022.7 was charged in the information, this allegation was proved when the jury found him guilty of section 243, subdivision (d) and Hawkins should therefore receive limited custody credits. (Hawkins II, at p. 530.) The appellate court rejected the contention that Hawkins fell within the catchall provisions of subdivision (c)(8) of section 667.5. (Hawkins II, supra, at p. 531.)
This citation is to David Thomas Hawkins (Hawkins II, supra, 108 Cal.App.4th 527) and our previous citations have been to Hawkins, supra, 15 Cal.App.4th 1373, who is Jeffrey Allen Hawkins.
The Hawkins II court further found that the section 12022.7 enhancement could not be found true in a crime where the offense was battery with serious bodily injury unless the crime was related to domestic violence. The court found serious bodily injury was not equivalent to great bodily injury and it was error to limit the custody credits Hawkins should receive. (Hawkins II, supra, 108 Cal.App.4th at p. 532.) Curiously, Hawkins II appears to anticipate Cabrera in that it did not find equivalency between battery causing serious bodily injury and battery causing great bodily injury, especially where the jury failed to find the great bodily injury enhancement true. Cabrera and Hawkins II are factually similar because in both cases there was no jury finding that the great bodily injury enhancement was true.
The Hawkins II court, however, criticized Jose H., reasoning that by its own terms section 12022.7 "does not apply to crimes in which infliction of great bodily injury is an element of the offense ..." (HawkinsII, supra, 108 Cal.App.4th at p. 531.) Unlike the jury in Hawkins II, the jury here found the great bodily injury enhancement true. Part of the rationale of Hawkins II was that great bodily injury is an element of battery with serious bodily injury, and it criticized Jose H. for failing to note this point. (Hawkins II, at p. 531.)
The criticism of Jose H. by the Hawkins II court is based on the now questionable premise that great bodily injury is an element of serious bodily injury (§ 243, subd. (d)). As explained in Cabrera, great bodily injury and serious bodily injury can be overlapping, but they are not equivalent. If great bodily injury is not an element of section 243, subdivision (d), then the prohibition of applying a great bodily injury enhancement to an offense with great bodily injury as an element, set forth in subdivision (g) of section 12022.7, does not apply where the element proven is only serious bodily injury. We therefore conclude that the holding of Hawkins and the criticism of Jose H. by Hawkins II have been superseded by the holding and rationale of Cabrera.
As an additional and alternative basis for rejecting Barrcena's argument, we agree with the explanation in Jose H. that neither the first Hawkins case nor Otterstein stand for the proposition that a great bodily injury enhancement must be stricken when found true along with a conviction for section 243, subdivision (d) for the same criminal act. Although section 654 would bar multiple punishments for the same criminal act, there is no reason why the trial court would have to strike the great bodily injury enhancement once it was found true by the jury.
Because the section 243, subdivision (d) conviction and section 12022.7, subd. (a) great bodily injury enhancement arose from the same course of criminal conduct, the trial court here properly applied section 654 in staying Barrcena's sentence for the great bodily injury enhancement. (Jose H., supra, 77 Cal.App.4th at p. 1096.)
To summarize, it appears that after Cabrera there is little vitality remaining to the argument that battery with serious bodily injury is the same as inflicting great bodily injury. A defendant may be found guilty of battery causing serious bodily injury and an enhancement on the same count for inflicting great bodily injury can also be found true for the same act. The trial court, however, cannot impose separate or additional punishment for the great bodily injury enhancement. As an alternative basis for our holding, we agree with Jose H. that there is no authority for striking a great bodily injury enhancement that has been found true by a jury, as occurred here, merely because it was alleged as an enhancement to a section 243, subdivision (d) allegation for battery causing serious bodily injury. The trial court did not err in refusing to strike the great bodily injury enhancement.
MOTION TO STRIKE BARRCENA'S PRIOR SERIOUS FELONY
Barrcena contends the trial court erred in refusing to strike his prior serious felony conviction. In his sentencing brief to the trial court, Barrcena argued this incident was an isolated incident in his life, he had been monitored continuously for 14 years, and had hundreds of mundane contacts with police. Defense counsel also argued the prior serious felony conviction occurred in 2005, 17 years ago, and Barrcena was under age twenty-six when he committed that offense. At the sentencing hearing defense counsel argued the prior serious felony conviction should be stricken "due to the age of the strike." In denying defense counsel's request to strike the prior conviction, the trial court noted Barrcena had been in different institutional settings since committing that crime and it would not be appropriate for the court to strike the prior conviction. The trial court carefully considered whether to give Barrcena the mitigated term or the midterm and listened to statements from the two officers who were injured by Barrcena.
A trial court may strike or dismiss a prior serious felony conviction in the interests of justice that would otherwise be imposed pursuant to the Three Strikes law. (§ 1385; Romero, supra, 13 Cal.4th at p. 504.) The factors to be considered by the trial court in this determination are the nature of the circumstances of the defendant's past and current felonies; the particulars of the defendant's background, character, and prospects; and, whether the defendant could be deemed outside the sentencing scheme's spirit, in whole or in part. (People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial court's ruling on a Romero motion is made under the deferential abuse of discretion standard-requiring the defendant to show the sentencing decision was irrational or arbitrary. It is insufficient that reasonable people may disagree about whether to strike a prior conviction. The Three Strikes law establishes a sentencing norm and carefully circumscribes the trial court's power to depart from that norm. The law creates a strong presumption that any sentence conforming to these sentencing norms is rational and proper. Only extraordinary circumstances justify finding that a career criminal is outside the Three Strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 378.)
Barrcena analogizes his case to People v. Avila (2020) 57 Cal.App.5th 1134 (Avila). Avila committed his first strike offenses, a second degree robbery and an assault with a knife, on the same occasion when he was 18 years old. Avila was paroled after a year in prison and the following year, then 20 years old, committed his last strike offense which was also a second degree robbery with possession of a firearm by a felon. (Id. at p. 1141.) Avila's most recent offenses were in 2018 for attempted extortion (§§ 664, 518) of one street vendor, Castro, and attempted second degree robbery (§§ 664, 211) of another, Blanco-Quiahua. Avila demanded rent from Castro, claimed he was from the barrio, left and returned the next day to collect it. When he returned, Avila demanded $100 and when Castro said he did not have the money, Avila squashed two bags of oranges and left. The incident made Castro feel nervous. Soon after the confrontation with Castro, Avila confronted Blanco-Quiahua who was selling bags of oranges. Avila threw a bag of oranges on the ground, stomped on them, and demanded money. A witness saw Avila throwing bags of oranges into the dirt. Scared, Blanco-Quiahua backed away. (Avila, supra, 57 Cal.App.5th at p. 1139.) Avila received a sentence of 25 years to life plus 14 years. (Ibid.)
Avila noted that the defendant's prior strikes were between 26 and 28 years old, the defendant was under age 21 when he committed them, and the trial court was aware of but not quite sure how to evaluate the remoteness in time of the prior convictions. The trial court mistakenly believed it could not consider Avila's youthfulness when he committed his strike offenses. The trial court's finding that Avila fell within the spirit of the Three Strikes law hinged primarily on the nature and circumstances of the current offenses. (Avila, supra, 57 Cal.App.5th at pp. 1141-1142.)
Avila found that while the defendant's conduct was offensive and predatory, a Romero determination requires consideration of the nature and circumstance of the crime actually committed, and Avila's conduct was not violent or brutal. No weapon was used and no physical violence was employed. Attempted robbery is a serious crime but not a violent one. The trial court also speculated about other uncharged crimes Avila may have committed. (Avila, supra, 57 Cal.App.5th at p. 1142.) The Avila court found the defendant was not comparable to a defendant who had lived a life of continuous crime. (Id. at p. 1143.) Avila concluded that the trial court abused its discretion in denying his Romero motion. (Id. at p. 1145.)
Barrcena argues that the only factor cited by the trial court in denying the Romero motion was that he had remained in institutional settings since committing his prior strike (lewd act upon a child; § 288, subd. (a)). Barrcena contends the court failed to consider multiple mitigating factors such as his age when he offended, 19 years old, and that the offense occurred in 2004.
We agree, however, with the People that the record shows the trial court was well aware of its sentencing discretion. The court had reviewed Barrcena's criminal record for committing a lewd act on a minor and was well aware of the alleged remoteness of the crime as it was argued in Barrcena's sentencing brief and by defense counsel during the sentencing hearing. Furthermore, Barrcena's current offenses were not for smashing oranges. Barrcena's offenses were far more serious and much more violent than those catalogued in Avila.
Barrcena broke up furniture and a closet to use as projectiles against the officers as they were trying to subdue him. Magpayo thought that Barrcena's behavior was consistent with using illegal drugs. Barrcena's barricade was elaborate, making it difficult for officers to gain access to his room. Barrcena wore a mask and used baby powder to defeat the tear gas deployed by officers. Barrcena's conduct was sophisticated and put both the officers and himself at risk for harm. Barrcena was not a model resident of the hospital, entitled to the benefit of any doubt concerning the remoteness of his past criminal conduct.
Also, the trial court here, unlike in Avila, did not speculate about uncharged offenses Barrcena may have committed. Instead, the court carefully evaluated the sentencing factors relevant to Barrcena's current criminal conduct. Barrcena did not receive a prison sentence of 25 years to life plus 14 years, but a term of six years. We conclude the trial court did not err or abuse its discretion in denying Barrcena's Romero motion.
DISCRETION TO DISMISS ENHANCEMENTS
Barrcena argues the trial court failed to exercise its discretion pursuant to Senate Bill No. 81 and section 1385, subdivision (c) to dismiss his prior serious felony conviction and his great bodily injury enhancement. The People respond that Barrcena failed to challenge the strike prior on this basis at the sentencing hearing and it is forfeited on appeal. The People further argue that exercise of discretion to dismiss sentence enhancements does not apply to strike priors because they are not enhancements but part of an alternative sentencing scheme.
Section 12022.7 Enhancement
We initially note that defense counsel made an oral motion to dismiss the great bodily injury enhancement pursuant to section 1385. Defense counsel not only requested that Barrcena not receive punishment for the section 12022.7 enhancement, but that the enhancement itself be stricken. The trial court asked, "Pursuant to section [1385] you are asking the court to exercise its discretion to strike it?" Defense counsel replied affirmatively, and the court denied the motion. Thus, the issue was preserved for appellate review.
The reporter's transcript cites the code section as 1358. Section 1358 deals with the return of a commission by agent and is obviously not relevant to these proceedings. The trial court and defense counsel were clearly referring to section 1385 and the entry in the reporter's transcript appears to be a simple transposition of the last two numbers or a scrivener's error.
We reject Barrcena's argument that defense counsel failed to more specifically argue that the trial court strike the great bodily injury enhancement pursuant to subdivision (c) of section 1385 rather than more generally to section 1385. The parties acknowledge that Senate Bill No. 81 became operative on January 1, 2022. (Stats. 2021, ch. 721, § 1; People v. Burke (2023) 89 Cal.App.5th 237, 242-243 (Burke).) Barrcena was sentenced on November 3, 2022. Appellate courts presume trial courts know and apply the correct statutory and case law. (People v. Presley (2021) 65 Cal.App.5th 1131, 1142.)
Section 1385, subdivision (c)(1) permits a trial court to dismiss an enhancement in the furtherance of justice, "except if dismissal of that enhancement is prohibited by any initiative statute." Subdivision (c)(2) of section 1385 states that in exercising its discretion to strike an enhancement, the trial court shall afford great weight to the mitigating circumstances offered by the defendant 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."
The trial court's order denying a section 1385 motion to dismiss an enhancement is reviewed under an abuse of discretion standard, meaning the court's decision is so irrational or arbitrary that no reasonable person could agree with it. (Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490.) The trial court did not abuse its discretion in denying the section 1385 motion to dismiss the great bodily injury enhancement because Barrcena's current conduct was violent, as explained above, demonstrating current endangerment of public safety. We further observe that Barrcena did not make a convincing showing of mitigating circumstances. The enhancement itself was related to the current offenses and not based on a conviction greater than five years old.
Subdivision (c)(2)(H) of section 1385 authorizes a trial court to strike a prior prison term enhancement that is over five years old. (See § 667, subd. (a).) Barrcena was not charged with a prior prison term enhancement, did not admit one, and was not sentenced for one.
Prior Strike Conviction
Barrcena also contends the trial court erred in failing to strike his prior strike conviction pursuant to section 1385. When the Three Strikes law is applicable, it takes the place of whatever law would otherwise determine a defendant's sentence. (Romero, supra, 13 Cal.4th at p. 524; People v. Henderson (2022) 14 Cal.5th 34, 43.) A prior strike conviction is not an enhancement but part of an alternative sentencing scheme. Accordingly, section 1385, subdivision (c) does not apply to prior strike convictions. (People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn. 2; Burke, supra, 89 Cal.App.5th at pp. 242-245 [finding the plain language of subdivision (c) of section 1385 to be clear and unambiguous on the meaning of the word "enhancement" and the distinction between enhancement and an alternative sentencing scheme].)
Barrcena's opening brief has a detailed discussion of the legislative history underlying Senate Bill No. 81. Because we agree with Burke that the statutory meaning of "enhancement" is clear and unambiguous, we do not consider the legislative history cited by Barrcena. (Burke, supra, 89 Cal.App.5th at pp. 243-244; see People v. Birkett (1999) 21 Cal.4th 226, 231-232 [if examination of the statutory language leaves doubt about its meaning, then reviewing courts may consult other evidence of the Legislature's intent including the history and background of the measure].)
The trial court could not employ subdivision (c) of section 1385 to strike the prior serious felony conviction because it was not an "enhancement" and trial counsel was not expected to raise this point at the sentencing hearing. (People v. Thompson (2010) 49 Cal.4th 79, 122 [counsel is not ineffective for failing to make frivolous or futile motions].) In light of our findings, we do not reach the People's alternative argument that Barrcena forfeited these contentions by failing to raise them below.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FRANSON, J. DE SANTOS, J.