People v. Duisen

1

THE PEOPLE, Plaintiff and Respondent, v. KURT KENNETH DUISEN et al., Defendants and Appellants.

E081281

California Court of Appeals, Fourth District, Second Division

December 10, 2024

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. Nos FSB20003691 & FSB20003692 Alexander R. Martinez, Judge. Affirmed.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant Kurt Kenneth Duisen.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant David Macias.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Warren Williams Kathryn Kirschbaum, and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

Kurt Kenneth Duisen and David Macias (collectively, Defendants) each appeal from sentences imposed following convictions for, among other crimes, home invasion robbery (Pen. Code,^[1] §§ 211, 213, subd. (a)(1)(A)), and assault with firearms (§ 245, subd. (a)(2)), along with findings that Defendants each had been previously convicted under the "Three Strikes" law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), as well as having been previously convicted of serious felonies (also known as nickel priors) (§ 667, subd. (a)(1)). The convictions arose from Defendants' forced entry into a residence with firearms, where they corralled the victims, and robbed one of them of money, a gun, and two pounds of marijuana. The trial court made true findings on seven aggravating factors before imposing sentences of 25 years for Macias, and 28 years, 4 months, for Duisen. Both Defendants appealed.

On appeal, Defendants argue that their sentences violate amended provisions of section 1385, added pursuant to Senate Bill No. 81 (2021-2022 Reg. Sess.) where the trial court declined to exercise its discretion to strike the enhancements in the interests of justice. Defendants also argue the trial court abused its discretion in selecting their prison terms, among other sentencing challenges under section 1170.1. We affirm.

Background

On October 28, 2020, at approximately 8:30 a.m., the Defendants broke down the front door of a residence occupied by the victims, Valerie Franco (Valerie),^[2] Valerie's boyfriend, Benito Sandoval (Benito), Benito's younger sister Madelyn Sandoval (Madelyn), and Benito's uncle, Juan Bucio (Juan). Both of the Defendants were masked^[3]and armed with firearms: one had a handgun, while the other had a shotgun, and, as they entered the home, they yelled, "LAPD!". Benito, Madelyn and Valerie had been upstairs at the time of the home invasion, and were all ordered to come to the stairs by the suspect who had the handgun, identified as Macias. Macias then went into the downstairs bedroom and ordered Juan to come out.

With all four victims on or near the stairs, Macias directed Juan to go back to the downstairs bedroom, Macias pointing his gun at Juan as he followed behind Juan, while the other suspect Duisen, with the shotgun, stayed by the other three victims who were now by the stairs. Macias demanded money from Juan, and then asked Juan for a gun. Juan gave Macias cash in an amount exceeding $1000 and a handgun that Juan kept in his nightstand. Macias also took an ice chest containing approximately two pounds of marijuana. After taking the money, gun and ice chest, the Defendants left the house, warning the victims not to call the police.

The Defendants left in separate vehicles: Duisen drove a blue jeep, while Macias drove a white truck. Duisen was apprehended in the jeep after a pursuit by law enforcement, during which Duisen was observed throwing a baggy from the jeep. The pursuit ended when Duisen rammed his jeep into the side of one of the patrol vehicles that had pulled up alongside the jeep and was then closed in from behind by a second patrol vehicle. A deputy sheriff who was a passenger in the patrol vehicle was pinned in by the impact from the side of the jeep, having to exit the vehicle through the driver's side door. The jeep's push bar was stuck in the patrol vehicle. Duisen was placed under arrest. Law enforcement officers retrieved a wallet from Duisen's person, along with a cellphone that was ringing when seized. The caller was identified on the cellphone screen as "Dave M." and it displayed the caller's phone number. The cellphone screen was photographed.

Inside the jeep, law enforcement officers found a shotgun on the rear seat, along with shotgun shells and a knife. A baggie was recovered and found to contain methamphetamine.

Later, a sergeant at the sheriff's office checked the jail information management system database to determine if the phone number that was photographed from Duisen's cellphone was linked to anyone who had been arrested, and found booking information for Macias, whose phone number matched the number that had called Duisen's cellphone at the time he was detained, and information that associated Macias to a white truck. Evidence from a surveillance camera in a nearby homeowners' association community showed a white truck leaving the area of the home invasion robbery, allowing law enforcement officers to see the license plate number of the vehicle as well as the contents of the truck, including an ice chest on the front passenger seat.

Two days after the home invasion robbery, the same white truck was involved in a traffic stop that occurred in San Bernardino by a deputy, and with the information obtained during that stop, an arrest warrant was issued for Macias. Macias was arrested at an address obtained from that traffic stop.

The fourth amended information charged both Defendants with the offense of home invasion robbery (§§ 211, 213, subd. (a)(1)(A), count 1), along with enhancement allegations that each Defendant personally used a firearm (§ 12022.53, subd. (b)); assault with a firearm (§ 245, subd. (a)(2), count 2), during the commission of which, each Defendant personally used a firearm^[4] (§ 12022.5, subd. (a)). Both Defendants were also charged, in separate counts, with possession of a firearm by a felon; as to Duisen, count 8 alleged he possessed a shotgun, while as to Macias, count 9 alleged he possessed a handgun. (§ 29800, subd. (a)(1).)

Separately, Duisen was charged with two counts of assaulting a peace officer (§ 245, subd. (c), counts 3 &4), resisting an executive officer (§ 69, count 5), evading a peace officer (Veh. Code, § 2800.4, count 6) while driving on a highway in a direction opposite to that in which traffic lawfully moves on a highway, and evading a peace officer (Veh. Code, § 2800.2, subd. (a), count 7), which offenses arose from the home invasion robbery incident. Duisen was also charged with another count of possession of a firearm by a felon (§ 29800, subd. (a)(1), count 10), along with an enhancement allegation that the crime was committed while Duisen was released on bail or on his own recognizance (OR). (§ 12022.1, subd. (b).)

The information also included an allegation under the Three Strikes law that each Defendant had been previously convicted of a serious or violent felony (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)), and enhancement allegations against each Defendant for the prior commission of a serious felony. (§ 667, subd. (a)(1) [nickel prior].) Finally, the information listed 18 possible aggravating factors which may apply in the case. (§ 1170, subd. (b)(2).)

Defendants were tried by a jury^[5] and guilty verdicts were rendered in counts 1, 2, 6, 7, 8, and 9, while the jury hung on counts 3, 4, 5, and 10, resulting in a mistrial on those counts. The jury made a true finding as to the firearm use pursuant to section 12022.53, subdivision (b), for count 1, as well as to the firearm use allegation pursuant to section 12022.5, subdivision (a), for count 2, as to both Defendants. Duisen was found guilty of counts 6, 7, and 8, the violations of Vehicle Code sections 2800.4 and 2800.2, and section 29800, subdivision (a)(1).

Macias was sentenced to an aggregate term of 25 years in prison, while Duisen was sentenced to an aggregate term of 28 years, 4 months in prison.^[6] Both Defendants appealed.

Discussion

In sentencing each of the Defendants, the trial court considered various factors affecting sentence pursuant to sections 1170 subdivision (b), and 1385, subdivision (b), in light of recent amendments. (Sen. Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731), amending § 1170; Sen. Bill No. 81 (2021-2022 Reg. Sess.), amending § 1385.) Before addressing Defendants' respective contentions, we summarize the trial court's findings, made at the time of sentencing.

A. Macias's Sentencing

At Macias's sentencing on April 7, 2023, the trial court denied probation and considered the applicability of section 1385, subdivision (c) to the enhancements found true, noting that because the Three Strikes law is an alternate sentencing scheme rather than an enhancement, section 1385, subdivision (c) did not apply. The court refused to exercise discretion to strike the section 12022.53, subdivision (b) firearm enhancement, reasoning that a court is not required to dismiss all but one enhancement under section 1385, subdivision (c)(2)(B) where to do so would endanger public safety. The court did find, as a possible factor in mitigation, that the imposition of the enhancement pursuant to section 12022.53 would result in a term in excess of 20 years.

However the court declined to strike or dismiss the section 12022.53, subdivision (b) enhancement because even if one or more mitigating factors or circumstances applied, they were outweighed by the consideration that dismissal of the...