Opinion
G058724
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JOSEPH MARQUEZ, Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Teresa Torreblanca and Christopher Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 08CF3587) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Request for judicial notice granted. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Teresa Torreblanca and Christopher Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Daniel Joseph Marquez of two counts of robbery and an assault with a deadly weapon. The trial court found true five strike priors and three serious felony priors. The court imposed an indeterminate term of 25 years to life, plus a determinate term of 15 years (for the three five-year serious felony priors). This court affirmed the judgment on appeal, but we ordered a remand to allow the court to exercise its discretion to dismiss one or more of Marquez's three serious felony priors. (People v. Marquez (2019) 31 Cal.App.5th 402, 408 (Marquez); Pen. Code, § 667.)
Further undesignated statutory references are to the Penal Code.
On remand, the trial court dismissed all three serious felony priors and imposed a sentence of 25 years to life. Marquez argues that the court abused its discretion when it declined his request to dismiss his five strike priors.
We find no abuse of discretion and affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
"In 2008, Marquez entered a bank . . . stating, 'I am armed. Give me all your large bills.' Marquez had a leather bag that looked like a 'CD organizer.' A teller put small bills and 'bait money' in the organizer. Two managers followed Marquez outside and tried to stop him. Marquez fought them off with a pocketknife, cutting the shirt of one of the managers. During the skirmish, Marquez dropped the organizer and a pair of glasses. From these items, investigators retrieved DNA evidence, which was later linked to Marquez." (Marquez, supra, 31 Cal.App.5th at pp. 405-406.)
"In 2012, the prosecution filed an information charging Marquez with two counts of second degree robbery and one count of assault with a deadly weapon. (Pen. Code, §§ 211, 245, subd. (a)(1); People v. Estes (1983) 147 Cal.App.3d 23.) The prosecution alleged five '"'strike'"' priors. (§ 1192.7.) The prosecution further alleged three prior serious felony conviction sentencing enhancements. (§ 667.)" (Marquez, supra, 31 Cal.App.5th at p. 406.)
"The jury found Marquez guilty as to all of the charged counts. The court found true the five prior 'strike' and the three prior serious felony conviction allegations. The court sentenced Marquez to 25 years to life, plus 15 years for the three prior serious felony enhancements." (Marquez, supra, 31 Cal.App.5th at p. 408.)
This court generally affirmed the judgment on appeal. But due to a retroactive statutory change, we "remanded to the trial court to consider whether to exercise its discretion to strike the punishment for any or all of Marquez's three prior serious felony convictions." (Marquez, supra, 31 Cal.App.5th at p. 415.)
On remand, the trial court dismissed Marquez's three prior serious felony convictions. But the court declined Marquez's request to dismiss his five strike priors. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The court then imposed an indeterminate sentence of 25 years to life.
II
DISCUSSION
Marquez argues the trial court abused its discretion when it denied his request to dismiss his five prior strike convictions (a "Romero motion"). We disagree.
In this discussion we will: A) examine the general legal principles; B) review the relevant proceedings; and C) apply the law to the facts. A. General Legal Principles
We review a trial court's denial of a defendant's Romero motion under an abuse of discretion standard of review. "Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) "Discretion is the power to make the decision, one way or the other." (People v. Myers (1999) 69 Cal.App.4th 305, 309.)
When a defendant challenges a court's discretionary sentencing decision on appeal, it is the defendant's burden to show that the court acted in arbitrary or irrational manner. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).) Absent such showing, there is a presumption that the court "'"acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."'" (Ibid.) A trial court's discretionary decision "'"will not be reversed merely because reasonable people might disagree."'" (Ibid.)
In Romero, the California Supreme Court held that a trial court may dismiss or strike a defendant's prior strike convictions under its longstanding section 1385 authority to dismiss in furtherance of justice. (Romero, supra, 13 Cal.4th at pp. 529-530.) However, the Court held that a trial court must give due "'"consideration both of the constitutional rights of the defendant, and the interests of society represented by the People."'" (Id. at pp. 530-531.) Therefore, a trial court may not dismiss a strike allegation "solely 'to accommodate judicial convenience or because of court congestion.' [Citation.] A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if 'guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring 'defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.'" (Id. at p. 531.)
Two years after Romero, the Supreme Court clarified what factors should guide the decision on whether to dismiss a prior strike conviction under the "Three Strikes" sentencing scheme. (Williams, supra, 17 Cal.4th at p. 161.) The Court held that in deciding whether to strike a strike "'in furtherance of justice' pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question 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." (Ibid.)
The Court has further clarified that "the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances." (Carmony, supra, 33 Cal.4th at p. 378.) B. Relevant Proceedings
Prior to the resentencing hearing, Marquez filed a sentencing brief. The brief acknowledged that "the matter was remanded by the Court of Appeal in order for this court to exercise its discretion in deciding whether to strike or impose each of the three [serious felony] priors found true pursuant to Penal Code section 667, subdivision (a)." However, the brief "respectfully requests [this] court reconsider the entirety of its sentencing scheme and both strike the three five[-]year serious priors . . . and grant his request to strike his strike priors pursuant to Penal Code section 1385 and [Romero], supra, 13 Cal.4th 497."
The sentencing brief stated that Marquez "is 64 years old. He admits to a lifelong struggle with addiction and now suffers from end stage liver disease as a result. While he has [had] some disciplinary issues in custody, most are minor offenses, none resulted in any significant discipline, and he has no record of committing violence while incarcerated." Attached to the brief were supportive letters from Marquez's family members. Marquez filed a supplemental exhibit to substantiate his medical claims.
Prior to the resentencing hearing, the court ordered "the Probation Department to provide a Supplemental Probation and Sentencing Report as to the defendant to include the defendant's conduct and achievements while in custody at the California Department of Corrections and Rehabilitation. The Court also orders Probation Department to interview the defendant regarding his time in custody."
The supplemental probation report noted Marquez's strike priors were for a 1975 state robbery conviction, a 1987 state residential burglary conviction, and three 1992 federal bank robbery convictions. The serious felony priors were for the 1975 robbery conviction, the 1987 residential burglary conviction, and one of the 1992 bank robbery convictions. (§§ 211, 459, 460, subd. (a); 18 U.S.C. § 2113(a).)
At the start of the resentencing hearing, the trial court acknowledged that it had reviewed the supplemental probation report, Marquez's sentencing brief, the attached letters, and the medical documents. As far as Marquez's medical condition the court said, "I'm satisfied that that proof has been shown to the court." The court heard arguments from Marquez's counsel, Ms. Gambale, and the prosecutor. The court also heard from Marquez directly.
The court announced its ruling, which we will quote from at length:
"In deciding whether or not to exercise my discretion under 1385, [the]court is being guided by the California Supreme Court's decisions in . . . Romero, [supra,] 13 Cal.4th 497, . . . Williams, [supra,] 17 Cal.4th 148 . . . , and . . . [Carmony, supra,] 33 Cal.4th 367.
"The factors that I look at are the following: the nature of the current offense and its relationship to other cases of seriousness. Robbery's a very serious case. It is not only designated a serious felony, but it's designated a violent felony. This was a violent act committed in this [case].
"The next factor is . . . the facts and circumstances of the current offense do not indicate a greater degree of danger to society. I cannot make that finding at the time that the offense was committed. I agree with counsel that, at the age of 64 and a half, it is appropriate for this court to consider it now, and I do say that I do not find that he will be a threat to the public in the future based on his both age and his medical condition.
"Whether or not the defendant was a passive participant or played a minor role in the current offense. I cannot make that finding. He -- he was the committer of this robbery. So that is not present here.
"Whether or not the victim was an initiator or willing participant or aggressor or provoked the incident. Such was not the case here.
"Whether or not the defendant's criminal conduct was partially excusable for some other reason not amounting to a defense. We have noted his heroin addiction at this time, . . . and I am giving the fact that addiction had ravaged him at that time.
"His prior offenses . . . , it was alleged there was a 1975 robbery, there was a 1987 residential burglary, and there were the two federal robbery convictions in 1992. This offense was a conviction which occurred in 2012.
"There are -- I am also allowed to consider additional factors such as whether or not this was a single period of abhorrent behavior. I am taking into consideration the comments of the victims in the past.
"Whether or not the criminal record is decreasing in severity. I do take into effect the role of drug addiction.
"To look at his progress on probation and parole and comments made by the probation or parole officer, his cooperation with police, the age of the defendant, his family support, or past or future rehabilitation programs, and future prospects.
"The probation department notes at my request what has been going on in prison the last 12 years. That he had received 11 documented incidents. That they break into those three categories that are listed on page four of the probation report.
"One are counseling . . . . Those are de minimus to this court. Next were administrative incidences. Those are de minimus to this court as well.
"But then the last are what are called serious events. One was possession of a cell phone on two different occasions, and one is possession of alcohol. The defendant offers an explanation for the cell phones based on the requirement that older inmates hold cell phones for younger inmates, and he eventually decided not to do that and there was retribution made against him for him declining to do that.
"I have no reason to doubt that, and the people have not presented evidence to suggest that that's not true so I will accept that as true. . . . . and he says that the alcohol was his roommate's. I . . . can't find that explanation to be truthful. I'm not saying he's lying to me, but I'm just saying I'd trust the prison officials to be smart enough to figure out . . . .
"The probation department also notes very strongly that he has made no attempt to deal with his addiction while in prison. They have classes, they have counseling -- all these things, and he chose not to avail himself of that. [¶] They do note he has gone to anger management and self-awareness groups . . . .
"The next areas that -- that I'm going to make note of is that there is a compassionate release program that does, in fact, exist in state prison. I know that not only exists but it is used because I have personally received two requests for authorization to release defendants on compassionate release, which I have granted. [¶] I note that I have not received one for the defendant.
"The interesting thing that many judges face at the time of initial sentencing is, to a large extent, we're asked to predict the future. How will they do? Will they get better? Will they -- you know, all like that. That's one of the advantages of indeterminate sentencing is that then that information can be presented to the parole board. [¶] This is a situation where I now have 12 years of additional information on the defendant to consider on that. Ms. Gambale, you have asked me to refashion a just sentence in this case, and the court is going to accept your offer in [this] case.
"The court will not strike the strikes. The court will strike the five-year priors. So now he is available to go to a parole hearing to present this to the parole authority and then they can decide. [¶] There [are] lots of questions that I have at a parole hearing that are not appropriate for me to ask now, that you could ask of the prison and probation staff and things like that. [¶] I don't know when he will be eligible for a parole hearing. I know under the old law but I can't say under Prop 47 that I have a -- any kind of sense of when that will be.
"So the . . . court reaffirms its initial sentence of 25 years to life. The court strikes the five year priors." C. Application and Analysis
After reviewing the record of Marquez's resentencing hearing in full, we have determined that no objective reader could credibly find that the trial court approached its sentencing decision in anything resembling an arbitrary or irrational manner. (See Carmony, supra, 33 Cal.4th at pp. 376-377.) Quite the opposite.
It is apparent that the court was well aware of the relevant legal standards, the arguments made by Marquez, as well "as the nature and circumstances of defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (See Williams, supra, 17 Cal.4th at pp. 160-161.) The court then came to a reasoned decision regarding Marquez's overall sentence within the confines of the relevant legal standards: dismissing the serious felony priors, while declining to dismiss the strike priors. (See People v. Myers, supra, 69 Cal.App.4th at p. 309 ["Discretion is the power to make the decision, one way or the other"].)
In short, the trial court did not abuse its discretion when it denied Marquez's request to dismiss his five prior strike convictions. (See Romero, supra, 13 Cal.4th 497.) That is, the court was not outside the bounds of reason when it implicitly determined that Marquez's 25 years to life sentence fell within the spirit of the Three Strikes sentencing scheme. (See Williams, supra, 17 Cal.4th at p. 161.)
Citing to statistical reports, Marquez argues: "Statistically speaking, this current indeterminate-life term clearly amounts to a die-in-prison outcome for the average American male aged 65 years: American males (all races and origins) at the age of 65 have an average life expectancy of about 18 years (i.e., an expectancy of death by age 83)." Marquez also argues that due to his "end-stage cirrhosis and liver disease and his chronic Hepatitis C put him far short - from a life-expectancy perspective - of ever reaching that 82-or-83-year-old threshold for parole-eligibility consideration should his current indeterminate sentence remain in place."
We grant Marquez's unopposed request to take judicial notice of life expectancy statistical reports and related documents he filed with this court.
While we are not unsympathetic to Marquez's plight, that does not give us the legal authority to substitute our judgment for that of the trial court. (See Carmony, supra, 33 Cal.4th at pp. 376-377 ["a trial court's discretionary "'"decision will not be reversed merely because reasonable people might disagree"'"].) We also note, as did the trial court, that there may (or may not) be options for Marquez at some point to pursue statutory provisions for a compassionate release.
"Notwithstanding any other law . . . , the secretary or the board may recommend . . . that the prisoner's sentence be recalled. (2) The court shall have the discretion to resentence or recall if the court finds . . .: (A) The prisoner is terminally ill with an incurable condition . . . that would produce death within six months . . . . (B) The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety. (C) The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living . . . ." (§ 1170, subds. (e)(1), (e)(2)(A)-(C).) --------
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.