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People v. Bonner

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Nov 4, 2019
No. F078056 (Cal. Ct. App. Nov. 4, 2019)

Opinion

F078056

11-04-2019

THE PEOPLE, Plaintiff and Respondent, v. BRANDON BRAJAHN BONNER, Defendant and Appellant.

Rachel Paige Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.


ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on November 4, 2019, be modified as follows:

On page 9, at the end of the first sentence following heading III, change "and became on effective October 8, 2019" to "on October 8, 2019 and will become effective on January 1, 2020."

The modification does not change the judgment.

/s/_________

Franson, Acting P.J. WE CONCUR: /s/_________
Peña, J. /s/_________
Snauffer, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF171304A)

OPINION

THE COURT APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Rachel Paige Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

Before Franson, Acting P.J., Peña, J. and Snauffer, J.

-ooOoo-

Defendant Brandon Brajahn Bonner contends on appeal (1) the trial court abused its discretion when it refused to dismiss his prior strike conviction pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); (2) we should remand for resentencing in light of newly enacted Senate Bill No. 1393 to allow the trial court an opportunity to exercise its discretion to dismiss (or strike) his section 667, subdivision (a)(1) enhancement; (3) his prior prison term enhancement must be stricken pursuant to newly enacted Senate Bill No. 136; and (4) he is entitled to an additional day of custody credit for time spent in jail on this case.

All unspecified statutory references are to the Penal Code.

We disagree with Bonner that the trial court abused its discretion when it refused to dismiss his prior strike conviction. However, we agree that his case must be remanded for resentencing in light of newly enacted Senate Bill Nos. 1393 and 136 and that he is entitled to an additional day of custody credit for time spent in jail on this case. We accordingly vacate the sentence and remand for resentencing, and direct the trial court to award Bonner an additional day of custody credit.

PROCEDURAL SUMMARY

On July 19, 2018, a jury found Bonner guilty of first degree burglary (§ 460, subd. (a); count 1) and misdemeanor vandalism (§ 594, subd. (b)(2)(A); count 2). In a bifurcated proceeding, the trial court found Bonner had suffered a prior felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)).

In connection with count 1, the jury found not true the allegation Bonner used a deadly or dangerous weapon in the commission of the offense (§ 12022, subd. (b)(1)).

Two prison priors were originally alleged in the information, but since the terms were run consecutively with each other, only one prison prior was ultimately alleged.

On September 4, 2018, the trial court imposed a total of 17 years in prison comprised of the following: the upper term of six years on count 1, doubled to 12 years under the Three Strikes law, plus five years for the prior serious felony conviction enhancement (§ 667, subd. (a)(1)), and an additional one-year jail term on count 2 to be served concurrently with the term on count 1. As to count 1, the trial court imposed but stayed a one-year prior prison term enhancement.

Bonner timely filed a notice of appeal on September 4, 2018.

STATEMENT OF FACTS

Much of our statement of facts is based on statements B.D. made to law enforcement between November 7, 2017 and November 9, 2017.

Bonner and B.D. were in a relationship for 11 eleven years and had two children together. By November 7, 2017, however, B.D. characterized Bonner as her ex-boyfriend.

On November 7, 2017, at approximately 12:30 a.m., B.D. arrived at her apartment in her car and saw Bonner's car parked nearby. B.D. had recently moved into that apartment and Bonner had never been there before. She got out of her car and walked up to Bonner's car, and observed him walking away from her apartment carrying a box. She recognized this box as one in which she stored paperwork and other things. She asked Bonner what he was doing. He put the box in his car and they began to argue. Bonner said he wanted to come inside B.D.'s apartment, but B.D. did not want him there. As she was walking away from the argument towards her apartment, she saw Bonner run over to her car and use an unknown object to puncture her car's left front tire. She immediately called the police and Bonner fled in his car.

B.D. went inside her apartment and saw someone had broken into it. A television and a DVD player were missing. B.D. told police Bonner either got into the apartment through the window or he had gotten a key when he was visiting his children. Bonner did not have permission to be at B.D.'s apartment or to take her belongings.

On November 9, 2017, B.D. was at her mother's house when Bonner arrived, and they began arguing. B.D. saw her belongings in Bonner's car and asked Bonner to return them, but he refused. Bonner told B.D. he wanted to move back in with her, and said he would return the property if she allowed him to move back in. He said multiple times he wanted his family back. B.D. called police and told the dispatcher: "... I made a report a few night[s] ago because um something got stolen out of my, my home. And the person who took them is actually sitting in front of my mom's house who's [sic] car is full of all my stuff, and he's refusing to give it back. So I was wondering if I could get an officer out." She said later in the call, "... I see all my stuff in the back of his car and he won't give it back."

After Bonner's arrest, he called B.D.'s phone number from jail 125 times in the span of 50 days. Some of those calls were played for the jury. On one of the calls, Bonner said, "I know I fucked up, okay. I know this shit. But, baby you fuck up too." Later in the call, B.D. said, "You're disgusting—you're disgusting, I'm not your baby." Bonner later stated, "I told you what to do, if you would do that I would be out already and I can be there for Christmas ...." B.D. said, "If I drop the charges, I already did, I—I told 'em I didn't, I mean what—what do I have to go down and tell 'em?" Bonner replied, "Yes, or call."

In another call, B.D. said to Bonner, "You'll never change. Your—your [sic] abusive, like, it'll never get better, it'll just get worse. I don't want to be with you." B.D.'s Testimony

At trial, B.D. recanted many of her prior statements to law enforcement. She testified she did not want to be in court and did not want Bonner to go to jail for something he may not have done, and she did not want their children to be without a father for "however many years." She did not want to "see [their] lives ripped apart."

She testified she and Bonner got into a fight on the night of November 6, 2017, at her apartment. At some point, B.D. left Bonner at the apartment and went to her mother's house. When she returned around midnight, she noticed things were missing and called the police. She saw someone running away, but it was very dark and she "figured it was probably" Bonner. She did not see Bonner take anything, but she told the police it was Bonner because she was very upset at the time. She also learned the next morning it was only a nail that punctured her tire. Bonner had keys to the apartment even though he did not live there because she occasionally needed him to go into her apartment.

Regarding the November 9, 2017 incident at her mother's house, B.D. testified she really did not see her things in Bonner's car, but she told the 911 dispatcher she did because she "would have told them anything to actually have a cop appear to help [her]."

Expert Testimony

Jeri Darr, a social worker, testified about the cycle of domestic violence. She had never met Bonner or B.D. and was unfamiliar with the facts of this case. Darr identified the phases of the cycle as a tension building phase, an explosive phase during which there is usually a violent incident, followed by a honeymoon phase where the perpetrator is sorry, asks for forgiveness, and promises it will never happen again. Often, a victim will initially be cooperative with law enforcement, and then later begin to recant once they learn the long-term ramifications of cooperating. In Darr's experience, victims tended to be most truthful within the first 72 hours following a domestic violence incident. It would be common for an abuser to call the victim over a hundred times in the span of a month or a month and a half.

The prosecutor presented Darr with a hypothetical scenario based on the facts of this case. Darr opined the hypothetical victim in such a scenario would be a "recalcitrant victim" who probably told the truth initially and later recanted once "she figured [it] out or when the abuser wore her down."

DISCUSSION

I. Romero Motion

Bonner contends the trial court abused its discretion in denying his Romero motion. He is incorrect.

In the furtherance of justice, a trial court may strike or dismiss a prior conviction allegation. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 504.) A court's ruling on a Romero motion is reviewed under the deferential abuse of discretion standard; that is, the defendant must show the sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 375, 377 (Carmony).) It is not enough to show reasonable people might disagree about whether to strike a prior conviction. (Id. at p. 378.) The Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm .... [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Ibid.) Only extraordinary circumstances justify a finding that a career criminal is outside the Three Strikes law. (Ibid.) Therefore, "the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Ibid.)

When considering whether to strike prior conviction allegations, a court considers "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)

The record before us reveals no basis for concluding, as a matter of law, Bonner falls outside the spirit of the Three Strikes law. Bonner's criminal history began at age 16 when he suffered a misdemeanor juvenile adjudication for disturbing the peace (§ 415). His first adult conviction, which was the basis for the prior strike and serious felony convictions, came in 2008 at age 18 when he committed second degree robbery (§ 212.5, subd. (c)). He was originally sentenced to one year in jail and five years' probation, but eventually was sentenced to three years in prison for violating probation. His other felony conviction was a 2015 failure to appear (§ 1320.5), for which he served a two-year prison term concurrently with the term on his robbery conviction. His seven adult misdemeanor convictions include: in 2011, battery (§ 243, subd. (a)); in 2012, resisting arrest (§ 148, subd. (a)(1)); in 2013, battery (§ 243, subd. (a)); in 2013, resisting arrest (§ 148, subdivision (a)(1)); in 2014, driving with a suspended license (Veh. Code, § 14601.1, subd. (a)); in 2015, making, issuing or circulating unauthorized money (§ 648); and in 2015, driving without a license (Veh. Code, § 12500, subd. (a)).

Bonner also failed to appear in many of his cases, served several jail terms, and had been to prison before. He was also on parole at the time he committed the instant offenses. While his prior performance on juvenile probation was satisfactory, his prior performance on adult misdemeanor and felony probation was unsatisfactory in that he violated terms and reoffended. In short, Bonner's record of numerous crimes and incarcerations demonstrates he knew his " 'criminal conduct was unacceptable—but had failed or refused to learn his lesson.' " (Williams, supra, 17 Cal.4th at p. 163.) The trial court concluded as much, stating, "[T]his Court cannot find in good conscience that [Bonner] is outside the spirit of the Three Strikes law given his numerous convictions since 2009."

Bonner's arguments do not persuade us any abuse of discretion occurred. He contends his prior strike conviction was remote in time (10 years), but the trial court expressly rejected this argument, stating, "[T]en years is not so long of a time." Remoteness has little mitigating force "where, as here, the defendant has led a continuous life of crime" after suffering the prior conviction. (People v. Pearson (2008) 165 Cal.App.4th 740, 749; Williams, supra, 17 Cal.4th at p. 163; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [the fact conviction was 20 years old was not a mitigating factor given defendant's recidivism; a trial court cannot be expected to "simply consult the Gregorian calendar with blinders on"].) Bonner asserts the 10-year period is more significant in his case because he was only 18 years old and therefore "much younger and immature" at the time of his strike offense. This assertion holds little weight, though, considering he has continuously reoffended. His criminal record indicates his first strike was just the beginning of a 10-year span of criminality, as opposed to an isolated incident ascribable to youthful immaturity.

Bonner calls attention to the fact that, besides the current burglary offense, his only felony conviction since his strike offense was for failure to appear (§ 1320.5), and the rest of his convictions have been misdemeanors. He has, however, suffered seven adult misdemeanor convictions, violated probation multiple times, and failed to appear in many of his cases. Furthermore, he was on parole at the time of the current offenses.

Bonner also contends his prospects are good because he was employed prior to incarceration on this case and was a devoted father able to provide for his family. However, this is counterbalanced by the fact he admitted smoking one gram of methamphetamine daily and had last used in April 2018, but nevertheless denied being a drug addict and was uninterested in residential treatment.

Bonner compares his situation to that of the defendant in People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop). In Bishop, the trial court dismissed two prior strikes in the interest of justice, reasoning that the strikes were " 'remote (17 to 20 years old) and the nature of the current crime [was] non-violent.' " (Id. at 1248.) The People appealed, and the Court of Appeal affirmed, holding that dismissal of the strikes was not an abuse of discretion. (Id. at p. 1247.) Bonner suggests his strike conviction was remote like Bishop's, and therefore the trial court likewise should have dismissed his strike.

Bonner's comparison of his case to Bishop is inapposite. "The Bishop holding does not establish that had the trial court denied Bishop's motion such a decision would have been arbitrary or irrational. [Citation.] Rather, the holding only establishes that the trial court did not abuse its discretion in striking the two prior felony convictions." (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.) The Bishop court even indicated it might have denied Bishop's motion had it been in the trial court's place, stating, "While the People and perhaps even this court may be of the opinion that Bishop appears undeserving of leniency, the paramount consideration is not what the prosecution, defense or appellate court might conclude. Rather, what counts is what the trial court in this case concluded, as expressed by the reasons it stated ...." (Bishop, supra, 56 Cal.App.4th at p. 1251.)

Bonner has failed to demonstrate the trial court's decision to deny his Romero motion was irrational or arbitrary. The trial court did not abuse its discretion.

II. Senate Bill No. 1393

Bonner contends his case must be remanded for resentencing in light of Senate Bill No. 1393 to allow the trial court an opportunity to exercise its discretion to strike the section 667, subdivision (a)(1) enhancement. The People concede, and we agree.

Prior to 2019, trial courts had no discretion to strike prior serious felony convictions for purposes of enhancement of a sentence under section 667. (Former § 1385, subd. (b).) Senate Bill No. 1393, which became effective January 1, 2019, removed this prohibition. (Stats. 2018, ch. 1013, §§ 1, 2; Cal. Const., art. IV, § 8, subd. (c).) The parties agree Senate Bill No. 1393 applies to Bonner because the statute is retroactive and applies to all cases not yet final as of its effective date. (In re Estrada (1965) 63 Cal.2d 740, 742 (Estrada); People v. Garcia (2018) 28 Cal.App.5th 961, 972 (Garcia).) We accordingly remand for resentencing.

III. Senate Bill No. 136

In supplemental briefing, Bonner contends his one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b) must be stricken in light of Senate Bill No. 136 (Stats. 2019, ch. 590, § 1), which was signed into law and became effective on October 8, 2019. The People concede the issue, and we agree.

Senate Bill No. 136 amended section 667.5, subdivision (b) regarding prior prison term enhancements. Under section 667.5, subdivision (a), which remains unchanged, courts are required to impose a three-year sentence for each prior separate prison term served by the defendant where the prior and current offense was a violent felony, as defined in subdivision (c) of section 667.5. For other felonies, former section 667.5, subdivision (b) imposed an additional one-year term for each prior separate prison term or county jail felony term, except under specified circumstances. However, amended section 667.5, subdivision (b) imposes that additional one-year term only for each prior separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) Because Bonner's prior prison term was not served for a sexually violent offense, his section 667.5, subdivision (b) enhancement is now unauthorized under the amended statute.

The parties agree Senate Bill No. 136 applies to Bonner because the statute is retroactive and applies to all cases not yet final as of its effective date. (Estrada, supra, 63 Cal.2d at p. 742; Garcia, supra, 28 Cal.App.5th at p. 972.) Accordingly, on remand for resentencing, Bonner's one-year prior prison term enhancement must be stricken.

IV. Custody Credits

Bonner's abstract of judgment reflects he was awarded 142 actual days of custody credit and 142 days of conduct credit, for a total of 284 days. He contends he is entitled to an additional actual day of custody credit. The People agree, as do we. Bonner was in custody from November 19, 2017, to February 21, 2018, for a total of 95 days. He returned to jail on July 19, 2018, and was sentenced on September 4, 2018, for a total of 48 days. Thus, Bonner should have received credit for 143 actual days, and the abstract of judgment must therefore be corrected to reflect an additional actual day of credit.

DISPOSITION

The sentence is vacated and the matter is remanded for the trial court to (1) exercise its discretion to consider whether to strike the prior serious felony enhancement (§ 667, subd. (a)), (2) strike the one-year prior prison term enhancement (§ 667.5, subd. (b)), and (3) resentence Bonner. The trial court is directed to award Bonner an additional actual day of custody credit, amend the abstract of judgment, and forward certified copies to the appropriate entities.


Summaries of

People v. Bonner

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Nov 4, 2019
No. F078056 (Cal. Ct. App. Nov. 4, 2019)
Case details for

People v. Bonner

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BRANDON BRAJAHN BONNER, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Nov 4, 2019

Citations

No. F078056 (Cal. Ct. App. Nov. 4, 2019)