Filed 3/18/24 P. v. Wright 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079168
v. (Super.Ct.No. FVI21003194)
FREDERICK LAMONT WRIGHT, ORDER MODIFYING OPINION AND DENYING PETITION FOR Defendant and Appellant. REHEARING
[NO CHANGE IN JUDGMENT]
The petition for rehearing is denied. The opinion filed in this matter on
February 23, 2024, is modified as follows:
Page 12, lines 17-18, add “not” after “was” and before “on probation . . . .”
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
McKINSTER Acting P. J.
MILLER J.
1 Filed 2/23/24 P. v. Wright CA4/2 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
FREDERICK LAMONT WRIGHT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kawika Smith,
Judge. Affirmed.
Martin Kassman, 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, Collette C. Cavalier, Paige B.
Hazard, Joy Utomi, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
1 I.
INTRODUCTION
A jury found defendant and appellant Frederick Lamont Wright guilty of first
degree burglary (Pen. Code,1 § 459; count 1). In a bifurcated proceeding, the trial court
found true that defendant had suffered a prior burglary conviction that constituted a prior
strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prior serious felony (§ 667,
subd. (a)(1)). After the trial court declined to dismiss defendant’s prior strike and prior
serious felony conviction, defendant was sentenced to a total term of 13 years in prison:
the middle term of four years, doubled to eight due to the prior strike, plus five years for
the prior serious felony enhancement. On appeal, defendant contends the trial court
abused its discretion when it declined to strike his prior serious felony conviction. We
find no abuse of discretion and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2021, while away from his home, J.S. received an alert from his
home video surveillance system that someone was inside his home. J.S. checked the alert
and saw multiple people burst into his home and take his property. J.S. called law
enforcement to report the burglary. An officer arrived on scene and observed a sports
utility vehicle (SUV) parked in front of J.S.’s home. When the SUV fled the scene, a
1 All future statutory references are to the Penal Code.
2 chase ensued. With the assistance of a police helicopter unit, officers located the vehicle
on a dirt road.
The vehicle was still running, and the doors were open, but there was no one
inside. Officers searched the area and discovered defendant near the vehicle as he was
trying to conceal himself by “ducking under a bush and running through the dirt field.”
Defendant was the only person officers located in the area. Defendant was found in
possession of bank cards belonging to two of J.S.’s relatives who lived in J.S.’s home, a
black glove, and a set of keys. Officers also searched the area defendant had been sitting
in their patrol vehicle and found an identification card and keepsakes belonging to J.S.’s
relative.
Defendant denied burglarizing J.S.’s home. He claimed that he was in the area
waiting for a ride when he saw the vehicle drive recklessly onto the dirt road and several
people running from the vehicle. He claimed that he had picked up the items belonging
to J.S. after the people who ran from the vehicle had dropped them. Defendant
acknowledged that he had previously been convicted of residential burglary, inflicting
corporal injury on a spouse, receiving stolen property, and possessing another person’s
identification card.
Following a jury trial, defendant was convicted of first degree burglary (§ 459).
After defendant waived his right to a jury trial on the special allegations, in a bifurcated
proceeding, the trial court found true that defendant had suffered a prior strike
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prior serious felony (§ 667,
3 subd. (a)(1)) conviction, to wit, a 2017 residential burglary conviction. The court found
true the following sentencing factors in aggravation: the crime was carried out with
planning, sophistication, or professionalism; defendant’s prior convictions were
numerous or increasing in seriousness; and defendant served a prior prison or jail term.
The sentencing hearing was held on May 26, 2022. The trial court noted that it
had reviewed the probation report, which recommended an aggregate sentence of
13 years in prison (the middle term of four years, doubled to eight years due to the prior
strike, plus five years for the prior serious felony enhancement). The court stated that
there were a number of aggravating factors, explaining that defendant had “a fairly
extensive criminal record,” including a prior strike, two convictions of corporal injury, a
burglary conviction, and an assault charge. The court recognized that although the
victims in the case had recovered the majority of their property, there was “emotional
trauma that goes with the violation of someone’s personal space” and having a stranger
breach one’s home, rummage through their property and take from the home. The court
noted that it was “struggling” with whether to exercise its discretion to impose the five-
year enhancement saying, “so it’s coming down to 8 years or 13 years” and inviting
further argument on the issue.
The prosecutor argued that the trial court should impose the prior serious felony
enhancement term, and not exercise its discretion to strike it, because the prior burglary
conviction was recent and was the same conduct that defendant was convicted of in the
present matter. The prosecutor also noted that defendant did not take responsibility for
4 his actions even after the jury’s conviction and that the jury found defendant’s story
unbelievable and his testimony not credible. Defense counsel argued that the court
should strike the five-year enhancement term because the underlying conviction was
already considered as a strike prior used to double the principal term from four to eight
years. Defense counsel also noted that the prior burglary offense occurred in 2016 and
that the victims had recovered most of their items. Emphasizing defendant’s extensive
criminal history and that this was defendant’s second conviction for first degree burglary
in a recent period, the trial court declined to strike the prior serious felony conviction and
exercised its discretion to impose the five-year enhancement term. The court thus
sentenced defendant to a total term of 13 years in prison. Defendant timely appealed.
III.
DISCUSSION
Defendant argues the trial court abused its discretion by failing to dismiss the five-
year prior serious felony enhancement pursuant to its discretion under amended
section 1385. Specifically, he argues the court was required to dismiss the enhancement
in furtherance of justice because of three mitigating circumstances pursuant to
section 1385, subdivision (c): the current offense was not a violent felony, the prior
serious felony conviction was over five years old, and a sentence without the five-year
enhancement would be sufficient punishment.
The People contend that the first and second reasons are forfeited because
defendant did not explicitly bring those reasons to the attention of the trial court.
5 Alternatively, the People assert that the trial court properly considered whether to strike
the five-year prior serious felony enhancement under subdivision (c) of section 1385,
weighing both mitigating and aggravating circumstances, and properly exercised its
discretion in declining to do so.
A. Legal Background
Effective January 1, 2019, Senate Bill No. 1393 amended sections 667,
subdivision (a), and 1385, subdivision (b), to allow trial courts to exercise their discretion
to strike or dismiss a five-year enhancement for a prior serious felony conviction “in
furtherance of justice.” (Stats. 2018, ch. 1013, §§ 1-2; see People v. Shaw (2020) 56
Cal.App.5th 582, 585.) The statute did not provide direction as to how courts should
exercise that discretion. However, recognizing the requirement the court’s action be
“‘“‘in furtherance of justice’”’” is an “‘amorphous concept,’” the California Supreme
Court has sought to elucidate general principles to guide a trial court in exercising its
sentencing discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-
531; People v. Williams (1998) 17 Cal.4th 148, 160-161 (Williams).) Recently, the
Legislature similarly sought to provide the trial courts with “clear guidance on . . . when”
to dismiss sentencing enhancements or other allegations under section 1385 by specifying
circumstances for courts to consider in their determinations. (Sen. Rules Com., Off. of
Sen. Floor Analyses, Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Aug. 30, 2021,
p. 5.) “In October 2021[,] the Legislature passed and the Governor signed Senate Bill
No. 81 . . . (Stats. 2021, ch. 721, § 1), which, effective January 1, 2022, amended
6 section 1385 . . . .” (People v. Anderson (2023) 88 Cal.App.5th 233, 238, review granted
Apr. 19, 2023, S278786 (Anderson).)
Senate Bill No. 81 amended section 1385 by adding subdivision (c). (Stats. 2021,
ch. 721; People v. Mendoza (2023) 88 Cal.App.5th 287, 295 (Mendoza).) Section 1385,
subdivision (c), states in part: “(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 in
subparagraphs (A) to (I) are present. Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the enhancement, 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 mitigating circumstances
identified in the subparagraphs include that “[m]ultiple enhancements are alleged in a
single case,” “[t]he current offense is not a violent felony as defined in subdivision (c) of
Section 667.5,” and “[t]he enhancement is based on a prior conviction that is over five
years old.” (§ 1385, subd. (c)(2)(B), (F) & (H).)
Thus, effective January 1, 2022, California law provides that a trial 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.” (§ 1385, subd. (c)(1); Mendoza,
7 supra, 88 Cal.App.5th at p. 295; People v. Ortiz (2023) 87 Cal.App.5th 1087, 1093-1094,
review granted Apr. 12, 2023, S278894 (Ortiz).) In exercising its discretion under
subdivision (c)(1), a trial court “shall consider and afford great weight to evidence
offered by the defendant” to prove one of nine enumerated mitigating circumstances.
(§ 1385, subd. (c)(2); Mendoza, at pp. 295-296; Ortiz, at pp. 1093-1094.) “Proof of the
presence of one or more of these [mitigating] circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the enhancement
would endanger public safety.” (§ 1385, subd. (c)(2); Mendoza, at p. 299; Ortiz, at
pp. 1093-1094.) The term “‘[e]ndanger public safety’” is statutorily defined as “a
likelihood that the dismissal of the enhancement would result in physical injury or other
serious danger to others.” (§ 1385, subd. (c)(2); Mendoza, at pp. 295-296; Ortiz, at
pp. 1093-1094.) There is no requirement for the trial court to consider particular factors
in determining whether dismissal would endanger public safety. (Mendoza, at p. 299.)
Together, section 1385, subdivisions (c)(1) and (c)(2) establish the following: (1) the
trial court has discretion to dismiss sentencing enhancements in the interests of justice;
(2) certain mitigating circumstances weigh greatly in favor of dismissal; and (3) a finding
of danger to public safety will overcome the mitigating circumstances. (See Mendoza, at
pp. 295-297; Anderson, supra, 88 Cal.App.5th at p. 239; People v. Lipscomb (2022) 87
Cal.App.5th 9, 18.) “Section 1385 makes clear that whether dismissal of an enhancement
is ‘in the furtherance of justice’ is a ‘discretion[ary]’ call for the trial court to make.”
(People v. Walker (2022) 86 Cal.App.5th 386, 395, review granted March 22, 2023,
8 S278309 (Walker); see § 1385, subd. (c)(2) [“In exercising its discretion . . .” (italics
added)].)2
B. Standard of Review
A trial court’s decision whether to dismiss an enhancement pursuant to
section 1385, subdivision (c), is reviewed for an abuse of discretion. (Mendoza, supra,
88 Cal.App.5th at p. 298.) A trial court abuses its discretion if it acts so irrationally or
arbitrarily that no reasonable person could agree with its refusal to dismiss the prior
conviction. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony); see
Mendoza, at p. 299.) “‘“In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.”
[Citations.]’” (Carmony, at pp. 376-377.) Furthermore, “‘“‘[a]n appellate tribunal is
neither authorized nor warranted in substituting its judgment for the judgment of the trial
judge.’”’ [Citations.]” (Id. at p. 377.) A trial court also abuses its discretion by basing
its decision on an impermissible consideration or on an incorrect legal standard. (People
v. Knoller (2007) 41 Cal.4th 139, 156; see People v. Nakano (2023) 89 Cal.App.5th 623,
2 We observe that a split of authority has emerged among the Courts of Appeal regarding the application of section 1385, subdivision (c)(2). (Compare Walker, supra, 86 Cal.App.5th 386 with Ortiz, supra, 87 Cal.App.5th 1087.) How courts should construe and apply the newly added provision is a question currently pending before the California Supreme Court. In granting review of the Walker decision, our high court defined the issue as follows: “Does the amendment to . . . section 1385, subdivision (c) that requires trial courts to ‘afford great weight’ to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety?” (People v. Walker, S278309, Supreme Ct. Mins., March 22, 2023.)
9 635 [noting that an abuse of discretion occurs when the trial court applies the “‘wrong
legal standard’”].) “‘“Defendants are entitled to sentencing decisions made in the
exercise of the ‘informed discretion’ of the sentencing court.”’” (People v. Flores (2020)
9 Cal.5th 371, 431.)
C. Analysis
Defendant here argues that the trial court abused its discretion in failing to dismiss
the prior serious felony conviction because the “current offense is not a violent felony as
defined in subdivision (c) of Section 667.5” (§ 1385, subd. (c)(2)(F)), was “based on a
prior conviction that is over five years old” (§ 1385, subd. (c)(2)(H)), and his sentence
without the five-year enhancement would still punish him for his recidivism.
Contrary to the People’s assertion, we do not find defendant forfeited his claim as
to his latter two reasons. (People v. Hiller (2023) 91 Cal.App.5th 335, 344.) Although
not clearly articulated, defense counsel argued those two grounds during the sentencing
hearing. “In any event, we have discretion to reach forfeited claims. [Citations.]” (Ibid.,
citing People v. Smith (2003) 31 Cal.4th 1207, 1215 [appellate court has discretion to
reach forfeited claims]; Williams, supra, 17 Cal.4th p. 161, fn. 6 [same].)
Addressing the merits of defendant’s claim, we disagree that the trial court was
required to dismiss the prior serious felony enhancement. We read subparts (1) and (2) of
section 1385, subdivision (c), together, such that evidence weighing greatly in favor of
dismissal of an enhancement under the statute, and any countervailing consideration
concerning danger to public safety (§ 1385, subd. (c)(2)) inform, but do not restrict the
10 court’s exercise of discretion to “dismiss an enhancement if it is in the furtherance of
justice to do so.” (§ 1385, subd. (c)(1), italics added.) We agree with the reasoning in
Ortiz that “the specification of mandatory factors did not displace the trial court’s
obligation to exercise discretion in assessing whether dismissal is ‘in furtherance of
justice.’” (Ortiz, supra, 87 Cal.App.5th at p. 1093, citing § 1385, subd. (c)(1)-(2); see
People v. Johnson (2022) 83 Cal.App.5th 1074, 1091, review granted Dec. 14, 2022,
S277196.) “The plain language of section 1385[, subdivision] (c)(2) contemplates the
trial court’s exercise of sentencing discretion, even as it mandates that the court give
‘great weight’ to evidence of enumerated factors.” (Ortiz, at p. 1096.) The Ortiz court
rejected the contention that the existence of a statutory mitigating circumstance compels a
trial court to dismiss an enhancement absent a finding that a dismissal would endanger
public safety. (Id. at p. 1098.) It concluded, and we agree, that “the ultimate question
before the trial court remains whether it is in the furtherance of justice to dismiss an
enhancement.” (Ibid.; see § 1385, subd. (c)(1).)
Furthermore, “‘[G]enerally applicable sentencing principles’ relevant to a court’s
determination of whether dismissal is in furtherance of justice ‘relat[e] to matters such as
the defendant’s background, character, and prospects.’ [Citation.] Those principles
require consideration of circumstances in mitigation (and aggravation) in the broader
context of the recognized objectives of sentencing, which are not limited to public
safety.” (Ortiz, supra, 87 Cal.App.5th at p. 1097.) The court here declined to strike the
enhancement, based on defendant’s current offense, prior offense, and background. As
11 the trial court stated at sentencing, the probation report listed a number of aggravating
factors, including defendant’s “fairly extensive criminal record.” Defendant was a career
criminal, with his criminal record spanning over 20 years, beginning in 1999. He had
two prior convictions for inflicting corporal injury on a spouse or cohabitant, numerous
drug-related convictions, theft-related convictions, a 2016 conviction for first degree
burglary, a 2019 conviction for misdemeanor assault by means likely to produce great
bodily injury. Moreover, defendant had violated probation over 17 times, the most recent
being in 2017, and had served multiple jail and prison sentences. The court also noted
the circumstances of the current offense, explaining although the victims in this case had
recovered the majority of their property, there was “emotional trauma that goes with the
violation of someone’s personal space” and having a stranger breach one’s home,
rummage through their property and take from the home.
Furthermore, the probation report reflects other circumstances in aggravation,
which include: the nature and circumstances of the crime were serious; defendant was an
active participant in the crime; the manner in which the crime was carried out indicated
planning, sophistication, or professionalism; defendant’s convictions were regular and of
increasing seriousness; defendant had served prior prison and jail terms; defendant was
on probation when the current crime was committed and his prior performance on parole
or probation was unsatisfactory; defendant had not shown a willingness to comply with
the terms of his probation; defendant had not shown remorse; and if not imprisoned, there
was a likelihood defendant will be a danger to others. As indicated by defense counsel
12 during oral argument, the trial court found the aggravating factor of defendant’s
unsatisfactory performance on parole to be not true beyond a reasonable doubt because it
was “unclear” whether or not defendant was on parole at the time he committed the
instant offense. The probation report stated there were no circumstances in mitigation.
(Cal. Rules of Court, rules 4.421, 4.423.) In light of the evidence before the court and
despite the prior conviction being five years old, it properly concluded that dismissing the
enhancement would not be in the furtherance of justice.
Defendant suggests the trial court was unaware of its discretion under section 1385
because the court “never explicitly mentioned section 1385[,]” did not consider some of
the mitigating circumstances and did not state that the dismissal of the enhancement
would endanger public safety. Although the court never mentioned section 1385 or state
dismissal would endanger public safety, we presume the court was aware of the amended
statute since it went into effect more than five months prior to the hearing. (See People v.
Thomas (2011) 52 Cal.4th 336, 361 [“[i]n the absence of evidence to the contrary, we
presume that the court ‘knows and applies the correct statutory and case law’”].) Thus,
we presume the court knows defendant’s current conviction was not violent as no person
was present when the residential burglary was committed. Further, defendant was
convicted of his prior first degree burglary conviction in September 2017, which was
committed in 2016, and he committed his current offense in November 2021. Thus, his
prior burglary offense was about five years old from the current burglary offense. In
contrast, there were multiple aggravating factors, as noted above. The court could easily
13 conclude the aggravating factors collectively outweighed the one or two mitigating
factor(s). Significantly, defendant does not contend it was inappropriate for the court to
consider any of the aggravating factors. Furthermore, we note that since the court
imposed the enhancement, it necessarily found that dismissing it would endanger public
safety. (§ 1385, subd. (c)(2).) The court mentioned emotional trauma associated with
committing a residential burglary. In addition, the probation report noted that there was a
likelihood defendant would be a danger to others if not imprisoned.
Our opinion in Mendoza, supra, 88 Cal.App.5th 287 is instructive. In that case,
the defendant argued the record did not contain evidence suggesting that dismissal of the
enhancement “‘would endanger public safety, i.e., that it “would result in physical injury
or other serious danger to others.”’” (Id. at p. 298.) In rejecting that contention, we
noted the trial court considered that a dismissal in that case would require the defendant’s
immediate release and there was a likelihood the defendant would commit a crime that
would result in physical injury or serious danger to others. (Id. at p. 299.) The trial court
also considered that the defendant discharged a gun with victims present during a home
invasion robbery in his instant crime. (Ibid.) We concluded, “Given the [trial] court’s
consideration of the circumstances of the crime and the court’s determination that a long
sentence was necessary for [the defendant] to become rehabilitated after committing such
a crime, we cannot say that the court’s determination that dismissal of the enhancement
‘would endanger public safety’ (§ 1385(c)(2)) was ‘so irrational or arbitrary that no
reasonable person could agree with it’ [citation].” (Mendoza, at p. 299.) Likewise, here
14 we cannot say the trial court’s refusal to dismiss the prior serious felony conviction for
residential burglary was “‘so irrational or arbitrary that no reasonable person could agree
with it’” (ibid.), given the court’s consideration of the circumstances of the crime, prior
felony offenses, and defendant’s background.
Ultimately, defendant has failed to meet his burden “‘“to clearly show that the
sentencing decision was irrational or arbitrary.”’” (Carmony, supra, 33 Cal.4th at
p. 376.) He has not disputed the court’s reasons for declining to dismiss the enhancement
(his current crimes and background, including his criminal history and the aggravating
factors). Because defendant has failed to show the court’s reasoning for not striking the
enhancement was irrational or arbitrary, the “‘“court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.”’” (Carmony, at pp. 376-377.)
IV.
DISPOSITION
The judgment is affirmed.