People v. Kemp CA4/2

• Court: California Court of Appeal
• Decided: September 7, 2023
• Docket: E080435
• Status: Unpublished

Opinion

Filed 9/7/23 P. v. Kemp CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E080435

v. (Super.Ct.No. RIF105475)

ERIC SHAWN KEMP, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige

B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

1 At a resentencing hearing pursuant to Penal Code section 1172.75,1 the court

denied defendant and appellant, Eric Shawn Kemp’s, motion to strike his prior strike

convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497

(Romero). On appeal, defendant contends the court abused its discretion. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND2

While executing a search warrant on a home in Riverside on August 29, 2002,

officers found defendant in possession of a loaded handgun and six small bags of rock

cocaine. Defendant admitted he had been selling rock cocaine for about five or six

weeks. (Kemp, supra, E033849.)

A jury convicted defendant of possession of cocaine while personally armed with

a firearm (Health & Saf. Code, § 11351.5, count 1) and being a felon in possession of a

handgun (Pen. Code, § 12021, subd. (a)(1), count 2). The jury also found true

enhancement allegations that defendant was personally armed with a firearm in his

commission of the count 1 offense (Pen. Code, § 12022, subd. (c)) and that he had

previously been convicted of a drug offense (Health & Saf. Code, § 11370.2, subd. (a)).

In a separate proceeding, the trial court found true allegations that defendant had suffered

two prior serious felony convictions (Pen. Code, § 667, subd. (c)), two prior strike

1 All further statutory references are to the Penal Code unless otherwise stated.

2 On the court’s own motion, we take judicial notice of our prior opinion in defendant’s appeal from the original judgment, which was quoted in the People’s opposition to defendant’s Romero motion. (People v. Kemp (May 21, 2004, E033849) [nonpub. opn.]; Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).)

2 convictions (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12), and two prior prison terms

(Pen. Code, § 667.5, subd. (b)). (Kemp, supra, E033849.)

At defendant’s sentencing hearing, his attorney requested, as pertinent here, that

the trial court dismiss “all the prior offenses, the enhancements.” Defense counsel asked

the court to “strike the enhancements and priors in the interest of justice.”

The court responded that it “doesn’t feel it should. You know, I didn’t make these

laws, the people [sic] did. And the Legislature did.” Defense counsel replied, “With all

due respect, before my client stands [to be sentenced], we understand you did not make

the laws. You do have the discretion as a judicial officer of the court to dismiss them.

We’d ask you to do that.” The trial court declined, stating, “It comes within the spirit, as

well as the letter, of the law.” The court sentenced defendant to a total indeterminate

term of 34 years to life in state prison. (Kemp, supra, E033849.)

Defendant appealed. As relevant here, defendant contended the trial court was

unaware of its discretionary authority under section 1385 to strike the prior drug

conviction allegation. This court disagreed. This court modified the sentence but

otherwise affirmed the judgment. (Kemp, supra, E033849.)

On April 25, 2022, the court, pursuant to Senate Bill No. 483,3 struck defendant’s

prior prison term enhancements (§ 667.5, subd. (b)), struck punishment for the prior drug

conviction enhancement (§ 11370.2, subd. (a)), and set the matter for a hearing on a

3 “Senate Bill No. 483 added section 1171.1 to the Penal Code, which was subsequently renumbered without substantive change as section 1172.75. (Stats. 2022, ch. 58, § 12, eff. June 30, 2022.)” (People v. Monroe (2022) 85 Cal.App.5th 393, 399 (Monroe).)

3 proposed Romero motion. On October 5, 2022, defendant filed a motion in which he

requested the court strike his prior strike convictions pursuant to Romero.

Defendant submitted 19 exhibits in support of his Romero motion including:

letters of character reference; an investigator’s report from 2003 containing a character

reference from defendant’s former girlfriend; an investigator’s report from 2022

reflecting that defendant had been traumatized as a youth due to daily domestic violence

in the home and the killing of his uncle; a prison rule violation from 2006 for creating a

“modesty curtain” out of “altered state linen”; a prison report from 2022 reflecting that

defendant had the lowest possible California Static Risk Assessment score; prison reports

showing defendant’s prison work history; a number of positive prison work experience

evaluations; numerous certificates of completion and participation in various skills

trainings and personal improvement programs; reports that defendant had completed a

gang recovery program, and had disassociated himself from his prior gang affiliation; a

note of “exemplary conduct”; a reentry plan; relapse prevention plans for domestic

violence, drug use, and drug sales; and letters of opportunity and promises to help support

him upon his release from prison.

On November 1, 2022, the People filed opposition to defendant’s Romero motion.

The People noted that defendant’s prior strike convictions were for robbery and assault

with a firearm committed respectively on June 28, 1991, and December 2, 1996. He was

on parole when he committed the instant offenses. Defendant had previously sustained

two parole and two probation violations. Thus, the People argued defendant had engaged

4 in a pattern of violent criminal activity such that the court should deny his Romero

motion.

At a hearing on December 5, 2022, the court indicated it had been “a little bit on

the fence.” The court noted that “if I was sentencing [defendant] when this offense

originally happened, it’s a no-brainer. It’s a no-brainer. He was a poster child for

recidivism treatment. So the question for me really becomes, did he do something in

prison that absolutely demonstrates an epiphany for me.”

The court then recounted several examples of defendants whose “extraordinary”

behavior after imprisonment led the court to strike a prior strike or enhancement: “All of

those were clear cases of people really, really, showing through actions and words that

they had changed their lives.”

The court noted that there were “some similarities” between those individuals and

defendant; however, defendant’s prior strike conviction offenses were “violent” and

“dangerous.” Defendant “would get on probation and get in trouble again, or get on

parole and get in trouble again.” Although the instant offense was “a bit more

innocuous,” the court noted defendant “had just been released not too long out on parole

[and] is not only—in possession of drugs, but he’s armed again.”

The court continued, “I don’t think—well, I’m not going to exercise my discretion

unless I see something that is so extraordinary that I—for someone with his record[, an]

unimpeded and uninterrupted stream of criminality that almost always has some aspect of

violence to it. The last one, the reason I’m saying that, is he was not violent with

5 anybody, but here he is again selling and he’s armed already while he’s still on parole.

Given the conduct, I cannot at this time say that I feel that he has had an epiphany of [the]

magnitude that I think justifies striking the strike, . . .” “[I]mplicit within this whole

analysis is, either the wors[e] the instant conduct is or the wors[e] the record is, the

greater level of epiphany I need to see, if that makes any sense.” The court denied the

II. DISCUSSION

Defendant contends the court abused its discretion in denying his motion to strike.

He maintains that Senate Bill No. 81’s amendments to section 1385 apply to a court’s

determination of whether to strike a prior strike conviction. Defendant argues that the

court’s failure to apply the mitigating criteria in amended section 1385 was an abuse of

discretion.

The People counter that defendant’s failure to raise below the application of

Senate Bill No. 81 to his Romero motion forfeited the issue on appeal. They additionally

maintain that Senate Bill No. 81’s liberalized criteria are not applicable to a court’s

decision to strike a prior strike conviction. Thus, the People contend the court acted

within its discretion in denying defendant’s Romero motion. We agree with the People.

A. Forfeiture

The People contend defendant forfeited any applicability of Senate Bill No. 81 to

his Romero motion by failing to raise that basis in his motion below. We agree.

6 Failure to raise an issue at sentencing forfeits the issue on appeal. (People v.

Keene (2019) 43 Cal.App.5th 861, 862; see People v. Romero and Self (2015) 62 Cal.4th

1, 49 [“He did not object on this basis below, and the claim is therefore forfeited.”].)

Here, defense counsel did not raise any issues with respect to Senate Bill No. 81’s

applicability to his Romero motion at the hearing below. Thus, the issue was forfeited.

Nonetheless, we can decline to find forfeiture or reach the merits even if the issue has

been forfeited. (Monroe, supra, 85 Cal.App.5th at p. 400.) We do so here.

B. Application of Senate Bill No. 81

Defendant acknowledges, “Caselaw has held that the Three Strikes Law is an

alternative sentencing scheme, not an enhancement.” Indeed, defendant concedes that the

recent amendment does not define “enhancement,” which means “that the legislators

considered the inclusion of a definition unnecessary because the term had already been

defined in the rules of court and court decisions. [Citations.]” Nevertheless, defendant

argues interpretation of the statute requires that we interpret it in a “broader sense that

includes strikes . . . .” Defendant maintains that the “in furtherance of justice” concept in

the statute is an “amorphous concept,” which can extend to the dismissal of prior strike

conviction findings. We disagree.

“Whether the amendments to section 1385 apply to prior strike convictions is a

question of statutory interpretation which we review de novo. [Citation.] ‘To resolve

whether defendant’s interpretation of the . . . statute[] is correct, we are guided by

familiar canons of statutory construction. “[I]n construing a statute, a court [must]

7 ascertain the intent of the Legislature so as to effectuate the purpose of the law.”

[Citation.] In determining that intent, we first examine the words of the respective

statutes: “If there is no ambiguity in the language of the statute, ‘then the Legislature is

presumed to have meant what it said, and the plain meaning of the language governs.’

[Citation.] ‘Where the statute is clear, courts will not “interpret away clear language in

favor of an ambiguity that does not exist.” [Citation.]’ ” [Citation.] If, however, the

terms of a statute provide no definitive answer, then courts may resort to extrinsic

sources, including the ostensible objects to be achieved and the legislative history.

[Citation.] “We must select the construction that comports most closely with the

apparent intent of the Legislature, with a view to promoting rather than defeating the

general purpose of the statute, and avoid an interpretation that would lead to absurd

consequences.” ’ [Citation.]” (People v. Burke (2023) 89 Cal.App.5th 237, 242 (Burke).)

“Effective January 1, 2022, Senate Bill No. 81 (Stats. 2021, ch. 721, § 1) amended

section 1385 to add specific mitigating factors the trial court must consider when

deciding whether to strike enhancements from a defendant’s sentence in the interest of

justice. [Citations.] Section 1385, subdivision (c) now provides: ‘(1) Notwithstanding

any other law, the court shall dismiss an enhancement if it is in the furtherance of justice

to do so, except if dismissal of that enhancement is prohibited by any initiative statute.

[¶] (2) In exercising its discretion under this subdivision, the court shall consider and

afford great weight to evidence offered by the defendant to prove that any of the

mitigating circumstances . . . are present. Proof of the presence of one or more of these

8 circumstances weighs greatly in favor of dismissing the enhancement, unless the court

finds that dismissal of the enhancement would endanger public safety.’” (Burke, supra,

89 Cal.App.5th at pp. 242-243.)

“Subdivision (c) of section 1385 expressly applies to the dismissal of an

‘enhancement.’ (§ 1385, subd. (c)(1).) ‘Ordinarily words used in a statute are presumed

to be used in accordance with their established legal or technical meaning.’ [Citation.]

The term ‘enhancement’ has a well-established technical meaning in California law.

[Citation.] ‘A sentence enhancement is “an additional term of imprisonment added to the

base term.” ’ [Citations.] It is equally well established that the Three Strikes law is not

an enhancement; it is an alternative sentencing scheme for the current offense.

[Citations.] We presume the Legislature was aware of, and acquiesced in, both this

established judicial definition of enhancement and the distinction between an

enhancement and an alternative sentencing scheme such as the Three Strikes law.

[Citation.] The Legislature did not otherwise define the word ‘enhancement’ in section

1385. Because the statutory language is clear and unambiguous, we follow its plain

meaning and do not consider the legislative history cited by defendant. [Citation.] The

plain language of subdivision (c) of section 1385 applies only to an ‘enhancement,’ and

the Three Strikes law is not an enhancement. We therefore conclude that section 1385,

subdivision (c)’s provisions regarding enhancements do not apply to the Three Strikes

law.” (Burke, supra, 89 Cal.App.5th at pp. 243-244, fn. omitted.)

9 “[S]ection 1385, subdivision (c) applies to enhancements. 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.

[Citation.]” (People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn. 2.)

We agree with the courts in Burke and Tilley that Senate Bill No. 81 applies only

to enhancements and that prior strike convictions are not enhancements. Thus, the court

did not abuse its discretion in not considering the mitigating factors enumerated in

amended section 1385 when denying defendant’s Romero motion.

C. Romero Motion.

Defendant contends the court abused its discretion in denying his Romero motion.

He maintains the court invented its own standard for reviewing his motion. We disagree.

“ ‘ “Defendants are entitled to sentencing decisions made in the exercise of the

‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of

the scope of its discretionary powers can no more exercise that ‘informed discretion’ than

one whose sentence is or may have been based on misinformation regarding a material

aspect of a defendant’s record.” ’ [Citation.]” (People v. Fredrickson (2023) 90

Cal.App.5th 984, 988; accord, People v. Lopez (2022) 78 Cal.App.5th 459, 466-467.)

“While the purpose of the Three Strikes law is to punish recidivists more harshly

[citation], not all recidivists fall within the spirit of that law. A trial court therefore may

strike or dismiss a prior conviction in the furtherance of justice. [Citations.] When

considering whether to strike a prior conviction, the factors a court considers are whether,

10 in light of the nature and circumstances of the defendant’s present felonies and prior

serious and/or violent felony convictions, and the particulars of the defendant’s

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 the defendant had not

previously been convicted of one or more serious and/or violent felonies. [Citation.]”

(People v. Avila (2020) 57 Cal.App.5th 1134, 1140 (Avila).)

“We review a trial court’s ruling on a Romero motion under the deferential abuse

of discretion standard, which requires the defendant to show that the sentencing decision

was irrational or arbitrary. [Citation.] It is not enough that reasonable people disagree

about whether to strike a prior conviction. [Citation.] 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.’ [Citation.] Only

extraordinary circumstances justify finding that a career criminal is outside the Three

Strikes law. [Citation.] 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.’ [Citation.]” (Avila, supra, 57 Cal.App.5th at p. 1140.)

Here, the court acted within its circumscribed discretion in denying defendant’s

motion to strike his prior strike convictions. The court stated that at the time he was

sentenced, defendant was a poster child for application of the three strikes law; the court

would have denied any Romero motion at that time without much thought. The court

11 observed that defendant’s prior strike conviction offenses were “violent” and

“dangerous.” Defendant “would get on probation and get in trouble again, or get on

parole and get in trouble again.” When arrested for the most recent offense, defendant

had just recently been released on parole, and was in possession of both drugs and a

firearm. The court concluded that defendant had been engaged in an “unimpeded and

uninterrupted stream of criminality that almost always has some aspect of violence to it.”

The court’s findings are amply supported by the record. Defendant’s criminal

record began in 1989 when he was convicted of transportation or sales of controlled

substances. The court placed defendant on three years of probation. The court later

extended his probation. While still on probation in 1991 on the former offense, defendant

was convicted of possession of controlled substances. The court placed defendant on

three years of probation.

In March 1992, while still on probation in both prior offenses, defendant was

convicted of possession of cocaine base for sale. In April 1992, again while still on

probation, defendant was convicted of robbery. The court revoked defendant’s

probations and sentenced him to four years of imprisonment concurrent with the terms

imposed for the other offenses. Defendant was released on parole but violated the terms

of his parole and was returned to finish his term.

In 1997, not long after release on parole, defendant was convicted of assault with a

firearm. The court sentenced him to four years of imprisonment. Defendant was twice

released on parole and twice violated his parole, on the last occasion by his commission

12 of the current offense. The court’s determination that defendant was not outside of the

three strikes scheme was well within its discretion.

Defendant contends that the court improperly wrote its own standard for ruling on

a Romero motion. We disagree.

As recounted ante, the court looked at defendant’s criminal history in determining

whether defendant was outside the scope of the three strikes scheme, which is precisely

what the law requires. In determining that defendant was not outside that scheme, the

court identified defendant’s criminal history, specifically his prior offenses, which

involved violence, and his numerous probation and parole violations. The court’s failure

to find “extraordinary” prison conduct and/or a personal “epiphany” which would

counterbalance defendant’s criminal record was well within its discretion. (See People v.

Bernal (2019) 42 Cal.App.5th 1160, 1170 [“[T]he presence of mitigating evidence is not

enough to render the trial court’s decision an abuse of discretion.”].)

III. DISPOSITION

The court’s order denying defendant’s Romero motion is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

MILLER J.

CODRINGTON J.