People v. Dain

317 Cal.Rptr.3d 805

The PEOPLE, Plaintiff and Appellant,

v.Yacob DAIN, Defendant and Respondent.

A168286

Court of Appeal, First District, Division 2.

Filed January 31, 2024

Court: Sonoma County Superior Court, Trial Judge: Hon. Bradford DeMeo (Sonoma County Super. Ct. No. SCR-709053-1)

Carla C. Rodriguez, District Attorney, Anne C. Masterson, Chief Deputy District Attorney, Sarah A. Brooks, Deputy District Attorney, for Plaintiff and Appellant

Mi Kim, under appointment by the Court of Appeal, Woodland Hills, for Defendant and Respondent

Miller, J.

This is the second appeal in this matter. In the first appeal, we remanded the matter for resentencing. In this appeal, the People challenge the sentence imposed by the trial court.

A jury found defendant Yacob Dain guilty of home invasion robbery, kidnapping, assault with a firearm, and additional offenses, and the trial court found true the allegations that he had two prior convictions for active gang participation that qualified as strikes under the Three Strikes law and as serious felony convictions under Penal Code section 667, subdivision (a) (§ 667(a)).

In the first appeal, we reversed the prior conviction findings and remanded to permit the prosecution to retry the prior conviction allegations under the current understanding of the gang participation offense. (People ?. Dain (Dec. 21, 2021, A157756) 2021 WL 6031474, at *6 (Dain).) On remand, the prosecution chose to retry only one of the prior convictions, which was again found to be a strike and a serious felony conviction. The trial court then granted defendant’s Romero¹ motion to dismiss the prior strike conviction although the court had denied a similar request when it originally sentenced defendant.

The People now contend in this second appeal that the trial court abused its discretion in dismissing the prior strike conviction for purposes of the Three Strikes law. In defending the trial court’s ruling, defendant relies on recently enacted Penal Code section 1385, subdivision (c) (§ 1385(c)), which directs trial courts to consider specified mitigating circumstances when deciding whether to dismiss an "enhancement" in furtherance of justice. (Stats. 2021, ch. 721, § 1, adding subdivision (c) to Penal Code section 1385.) Although Courts of Appeal have uniformly concluded that section 1385(c) does not apply to the decision whether to dismiss a prior strike conviction because the Three Strikes law is an alternative sentencing scheme, not an enhancement, defendant argues that newly enacted Assembly Bill No. 600 (2023-2024 Reg. Sess.) (A.B. 600)—which went into effect January 1, 2024—shows the Legislature intended section 1385(c) to apply in the context of the Three Strikes law.

We are not persuaded by defendant’s arguments and conclude section 1385(c) does not apply to the decision whether to dismiss a strike under the Three Strikes law. And on the record in this case, we agree with the People that the trial court abused its discretion in dismissing the prior strike conviction because defendant cannot be deemed outside the spirit of the Three Strikes law.

The People also contend that the trial court abused its discretion in dismissing the five-year enhancement under section 667(a) and imposing the middle term for the principal offense of home invasion robbery, but we find no abuse of discretion in these sentencing choices.

Accordingly, we reverse the order dismissing the prior strike conviction and remand for the trial court to resentence defendant as a person who has suffered one prior strike conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Current Offenses

As we recounted in our opinion after defendant’s first appeal, "Around 2:00 a.m. on October 18, 2017, Jess and Brandi Smith and their two daughters were asleep in their home in Santa Rosa when Jess and Brandi were awakened by their dog barking. When Jess got up to check on the dog, he discovered three or four men entering his dining room through a large window. The intruders all had pistols, and they were wearing hoodies pulled tight around their faces. Jess ran toward his bedroom and was tackled from behind. His attacker put Jess in a chokehold, held a .45 caliber pistol to his head, and forced him to his bedroom. Another man pointed a gun at Brandi. The intruders cursed and said, ‘Where the fuck is it?’ and ransacked their bedroom.

"Jess was dragged to the garage, where there was a safe containing jewelry and firearms, and told to open the safe. After Jess attempted and failed to open the safe, he was struck in the head with the pistol. Jess yelled out the combination; the men opened the safe but continued to demand, ‘where is it?’ Jess was part of a marijuana collective, and he realized the intruders were looking for marijuana. He showed them a key to a shed, and they dragged him outside to the shed where he pointed to boxes that contained marijuana. One of the men told Jess, ‘shut up and lay here and I won’t fucking shoot you,’ and the men started grabbing things in the shed. Eventually, the intruders left the shed, and Jess got up, ran to the front of the house, and saw a large SUV driving away.

"Meanwhile, the Smiths’ daughters (ages 20 and 9 years old at the time) had been forced into a bathroom. Brandi was dragged into the bathroom with her daughters. After it became quiet in the house, the older daughter left the bath- room and ran to a neighbor’s house, and the neighbor called 911." (Dain, supra, 2021 WL 6031474 at *1-2.)

Soon after the intruders left, defendant was pulled over for a traffic stop about a mile from the Smiths’ house. In his vehicle, police found items that belonged to the Smiths, including a jewelry box, a bracelet, and 14 one-pound bags of marijuana. (Dain, supra, 2021 WL 6031474 at *2.) Convictions, First Romero Motion, and Original Sentence

The jury convicted defendant of home invasion robbery (Pen. Code,² §§ 211, 213, subd. (a)(1)(A); count 1), kidnapping of Jess (§ 207, subd. (a); count 2), first degree burglary (§ 459; count 3), assault with a firearm of Jess (§ 245, subd. (a)(2); count 4) , false imprisonment of Jess (§ 236; count 5) , false imprisonment of Brandi (ibid.; count 6), false imprisonment of the older Smith daughter (ibid.; count 7), and of false imprisonment of the younger daughter (ibid.; count 8). As to counts 7 and 8, the jury found true the enhancement allegation that a principal in the offense was armed with a firearm. (§ 12022, subd. (a)(1).)

The trial court found true allegations that defendant was convicted of felony active participation in a criminal street gang in violation of section 186.22, subdivision (a) (§ 186.22(a)) in 2006 and again in 2007 and that both prior convictions were strikes under the Three Strikes law (§§ 667, subds. (d)-(i), 1170.12) and serious felony convictions under section 667(a).

The Probation Officer’s presentence report (probation report) recommended that factors in aggravation prevailed as to all counts.³ The report documented that defendant, then 33 years old, had an extensive criminal history. As a juvenile, he had sustained petitions for misdemeanor vandalism in 1998; misdemeanor theft in 1999; misdemeanor vandalism in 2001; misdemeanor theft in 2001; and misdemeanor resisting an officer in 2003, resulting at different times in community detention and various commitments, including several periods in Juvenile Hall. As an adult, defendant suffered convictions for misdemeanor theft in 2004; misdemeanor resisting an officer in 2005; misdemeanor driving in a willful or wanton disregard for safety of persons or property while fleeing a police officer in violation of Vehicle Code section 2800.2 in 2005; misdemeanor assault with a deadly weapon and felony active gang participation in 2006; felony possession of a firearm by a felon and felony active gang participation in 2007; misdemeanor false representation of identity to a peace officer in 2013; and felony violation of Vehicle Code section 2800.2, felony unlawful transportation of cannabis, and misdemeanor resisting an officer in 2014. For the 2006 convictions, committed when he was 20 years old, defendant was placed on three years’ formal probation with nine months in jail. For his 2007 convictions, he was sentenced to six years in prison. Defendant was paroled in 2011 and was subsequently found in violation of parole numerous times, including three occasions for associating with gang members and one occasion for possession of a firearm. For his 2014 convictions, defendant received a suspended sentence of five years, eight months, and was placed on three years’ formal probation. He was on probation when he committed the current offenses.

Defendant was sentenced in June 2019. Defendant filed a Romero motion inviting the court to dismiss the prior strike convictions, which the trial court denied.

Explaining its ruling on the Romero motion, the court (Hon. Bradford DeMeo) stated the prior strike convictions from 2006 and 2007 could not be considered remote in time because they were not followed by "a clear period of law-abiding conduct." Noting the law disfavors dismissing strikes when "a person has a long and continuous criminal career," it found defendant had "a long history of criminal conduct," including "many misdemeanors …, parole violations, probation violations, and felonies." Considering the nature and circumstances of the current offenses, the court described a "terrorizing event" involving "a violent, home-invasion robbery with guns brandished, pointed at people’s heads, point-blank range, yelling, grabbing people, hitting [Jess] with the gun, putting children into a bathroom, locking them in there with their mother, or at least guarding it, keeping them imprisoned in that when they had no idea what’s happening to husband and father." The court observed that defendant "has been on probation, been on parole" and "[t]hat did not seem to discourage him from a life of violating the law and crime."

After denying the Romer...