People v. Harris

1

THE PEOPLE, Plaintiff and Respondent, v. BRYAN HARRIS, Defendant and Appellant.

B323462

California Court of Appeals, Second District, Third Division

July 22, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA436057, Roger Ito, Judge. Reversed with directions.

Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Stacy S. Schwartz and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.

EDMON P. J.

A jury convicted Bryan Harris of second degree robbery and of attempting to dissuade a witness and found true gang allegations. The trial court imposed a sentence that included a five-year prior under Penal Code^[1] section 667, subdivision (a), a 10-year term for a gang enhancement, and an upper term for robbery. Harris appealed, and this division vacated his sentence and remanded for reconsideration of his sentence based on then-recently enacted Senate Bill No. 1393, which gave trial courts discretion to strike five-year priors. On remand, the trial court declined to strike the five-year prior. Harris appeals again, contending that the trial court abused its discretion by declining to strike the prior, that the true findings on the gang allegations should be stricken under Assembly Bill No. 333 (Assembly Bill 333), and that he should be resentenced under Senate Bill No. 567 (Senate Bill 567). We reverse with directions.

BACKGROUND

I. The underlying crime^[2]

"On April 19, 2015, Isiah Mack was working at a medical marijuana dispensary as an armed security guard. Before letting customers enter, Mack verified they had identification and a doctor's recommendation. That evening, Harris went to the dispensary by himself and, as he had the appropriate documentation, Mack let him in.

"Less than an hour later, Harris returned with Dharmen Prasad. Having just seen Harris's documentation, Mack again let him in. But when Mack asked Prasad for his documents, Prasad pointed a gun at Mack and asked, 'What are you doing in the hood with a Blood and burner?' Prasad took Mack's gun from its holster and threatened to shoot him. For his part, Harris patted Mack down but also convinced Prasad not to shoot Mack. Prasad left with Mack's gun while Harris looked on. When Mack assured Harris that he had no ill will towards him, Harris agreed and left. A few days later, Harris called Mack and told him that if he did not testify he would get his gun back.^[3]

"The People's gang expert testified that Harris and Prasad are Rolling 20's gang members, and the dispensary is in the gang's territory. Based on a hypothetical modeled on the facts of the case, the expert opined that such a robbery would be committed for the benefit of and in association with a gang and such an attempt to dissuade a witness would also benefit the gang." (People v. Harris supra, B285260.)

II. Verdict and sentence

A jury found Harris guilty of second degree robbery with a true finding that a principal used a firearm (§§ 211, 12022.53, subds. (b) &(e)(1); count 1) and of attempting to dissuade a witness (§ 136.1, subd. (a)(2); count 2). The jury found true gang allegations as to both counts (§ 186.22, subd. (b)(1)(C)).

On September 20, 2017, the trial court sentenced Harris to the upper term of five years on count 1, doubled to 10 years based on a prior strike, and to a consecutive two years, doubled to four years on count 2. The trial court also imposed a consecutive 10 years (§ 186.22, subd. (b)(1)(C)) and five years (§ 667, subd. (a)(1)). The trial court selected the high term on count 1 because Harris had "an increasing and poor performance on probation."

III. Postjudgment proceedings

Harris appealed the judgment of conviction. While his appeal was pending, Senate Bill No. 1393 became effective, and it gave courts discretion to strike or to dismiss five-year priors imposed under section 667, subdivision (a)(1). This division vacated Harris's sentence and remanded for resentencing so that the trial court could exercise its discretion under the new law. (People v. Harris, supra, B285260.)

At the September 14, 2020 remand hearing, the trial court declined to exercise its discretion to strike the five-year prior. Harris did not appeal that order and instead filed a motion for resentencing, asking, among other things, for reconsideration of the September 14, 2020 order. The motion was not heard until August 26, 2022, by which time Harris had retained a new attorney who had filed an amended motion. The trial court denied the resentencing motion, finding it had no jurisdiction to hear it.

Harris timely appealed from the August 26, 2022 order, and, as we discuss later, successfully obtained relief from default from failing to appeal the September 14, 2020 order.

DISCUSSION

I. The trial court did not abuse its sentencing discretion by not striking or dismissing the five-year prior

Harris contends that the trial court abused its discretion by refusing to strike or to dismiss the five-year prior. We disagree.

When Harris was sentenced in 2017, a trial court had no discretion to strike a section 667, subdivision (a) enhancement. But Senate Bill No. 1393 (2017-2018 Reg. Sess.) became effective January 1, 2019. It amended sections 667, subdivision (a) and 1385, subdivision (b), to give a sentencing court discretion to strike or to dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)

We review a court's decision to deny a motion to strike a five-year prior serious felony enhancement for an abuse of discretion. (People v. Brugman (2021) 62 Cal.App.5th 608, 637638.) The party attacking the sentence has the burden of showing that the sentencing decision was irrational or arbitrary, and absent such a showing, we will presume that the trial court acted to achieve legitimate sentencing goals. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) Further, we will not reverse a sentencing decision merely because reasonable people might disagree. (Id. at p. 377.)

Here, Harris argues the trial court's refusal to strike the five-year prior was based on a mistake of fact regarding the proximity in time between the current and prior offenses, and, accordingly, the ruling was an abuse of discretion. The current offenses occurred in 2015, and Harris had a prior conviction for a 2011 robbery. Yet, during the September 14, 2020 resentencing hearing, the prosecutor mistakenly said the offenses occurred one year apart, rather than four years.

A review of the entirety of the hearing, however, does not show that the trial court adopted this mistake of fact. Rather, at the hearing's outset, the trial court said it had reviewed the record of conviction and trial transcripts, and the trial court acknowledged that Harris had dissuaded his accomplice from further violence. Reiterating that it had read the defense motion, record of conviction, and Harris's criminal history "in particular," the trial court said that given its review and "the proximity of time between his criminal history and of this particular event, I am not inclined to utilize any authority" under Senate Bill No. 1393. Harris's original sentence was "fair and just," albeit "harsh." Yet, Harris's "history and involvement" showed that imposing the five-year prior was appropriate.

Defense counsel responded that the enhancement should be dismissed because of the evidence surrounding Harris's involvement in the crime, presumably referring to Harris's attempt to dissuade his accomplice from further violence. The prosecutor then said, "I heard the court saying the fact that his priors from 2014 and the crime he committed was in 2015, so almost within a year the crime was committed. I think that's the main issue I have. It's the same or similar conduct."

The trial court concluded by repeating that it was declining to exercise its discretion "given the circumstances in particular- not this case so much as the proximity of time to a prior conviction for a very, very similar type of offense." Harris's positive intervention during the robbery did not excuse that he had engaged in similar conduct that "was a close proximity in time." The trial court assured Harris that it had read the trial transcript and "saw what you did or did not do."

Nothing in this colloquy shows that the trial court based its ruling on a mistaken belief that only a year separated Harris's current and prior offenses. First, the prosecutor made the misstatement, not the trial court. Second, the trial court said it was denying the motion based on its review of the record and the proximity of the current crimes to Harris's prior criminal history before the prosecutor misstated that Harris's prior offense was from 2014 (instead of 2011). Stated otherwise, the trial court had already made its ruling before the prosecutor made the misstatement. Third, the trial court repeatedly said it had reviewed the record, including Harris's criminal history. That record states the correct date of the prior conviction, 2011. Therefore, the record affirmatively shows that the trial court knew that the prior robbery conviction was in 2011. But even if the record did not contain this affirmative showing, we would presume that the trial court was aware of the relevant factors absent Harris's failure to establish otherwise. (See People v. Pearson (2019) 38 Cal.App.5th 112, 117 [we presume court considered relevant factors].) We therefore conclude that Harris has not shown the trial court abused its discretion by refusing to strike the five-year prior.

II. Harris is entitled to the benefit of...