People v. Loftis

THE PEOPLE, Plaintiff and Respondent, v. DION EDWARD LOFTIS, Defendant and Appellant.

F080908

California Court of Appeals, Fifth District

July 16, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No F18908520. Jonathan M. Skiles, Judge.

Lindsay Sweet and Michelle Livecchi-Raufi, under appointments by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters Chief Assistant Attorney General, Michael P. Farrell Assistant Attorney General, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT^[*]

Defendant Dion Edward Loftis pled no contest to multiple felony counts, including two robbery counts, arising out of a single incident. He received a total term of 18 years in prison, composed of a 16-year term on one of the robbery counts and a consecutive two-year term on the other. The terms on the other counts were stayed.

He contends on appeal (1) the trial court abused its discretion when it refused to dismiss his prior strike conviction pursuant to Penal Code section 1385^[1] and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and (2) defense counsel rendered ineffective assistance by not objecting to the court's failure to state reasons for imposing consecutive sentences for the two robbery counts.

We conclude the trial court did not abuse its discretion in refusing to dismiss Loftis's prior strike conviction for sentencing purposes, and conclude counsel was not ineffective because the trial court did not have discretion to impose concurrent sentences on the two robbery convictions. We therefore affirm the judgment.

STATEMENT OF THE CASE

On March 21, 2019, the Fresno County District Attorney filed a consolidated complaint charging Loftis and a co-defendant with multiple counts. As to Loftis, the complaint charged two counts of second-degree robbery (§ 211; counts 1 & 2), one count of grand theft of personal property (§ 487, subd. (a); count 3), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4), and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 5). As to the robbery counts, the complaint alleged that Loftis personally used a firearm within the meaning of section 12022.53, subdivision (b), and that he intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). The complaint further alleged Loftis had suffered a prior felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)).

Loftis pled no contest to all counts and admitted all allegations. The court indicated that it would strike the section 12022.53, subdivision (c), firearm enhancement and that Loftis would receive a sentence of no more than 19 years four months.

At sentencing on January 29, 2020, the court denied Loftis's motion to dismiss his prior strike offense. The court imposed a total term of 18 years in prison. On count 1, the court imposed the midterm of three years, doubled to six years because of the prior strike conviction, plus a consecutive 10 years for the section 12022.53, subdivision (b), firearm enhancement, for a total of 16 years on that count. The court struck the remaining enhancements as to count 1.^[2]

On count 2, the court imposed a consecutive term of one year (one-third the midterm), doubled to two years because of the prior strike conviction. The court struck the remaining enhancements as to count 2.

The sentences on counts 3, 4, and 5 were stayed under section 654.

FACTS

The parties stipulated to the police report as a factual basis for Loftis's plea (§ 1192.5), and we therefore draw our statement of facts from that report.

On December 6, 2018, two men, S.A. and D.M., were riding an ATV, distributing payroll checks to farm workers working in the fields. S.A. and D.M. also were carrying several thousand dollars cash.

When S.A. and D.M. exited a row of vines, they saw two men wearing masks, later identified as Loftis and Jorge Pacheco, standing there. At that time, S.A. and D.M. had approximately $5, 000 in cash and an unknown number of payroll checks still inside a satchel.

S.A. thought the men were wearing masks because of the cold weather but noticed as they got closer Loftis was holding a handgun. Loftis approached S.A., placed the gun to his temple, and yelled in English, “Give me your money or you're going to die!” When S.A. did not immediately comply, Pacheco repeated what Loftis said in Spanish.

D.M. handed his wallet to Loftis. Loftis then fired the gun into the air and yelled at S.A. to give him his money. S.A. handed Loftis the satchel with the cash and checks inside and gave Loftis $400 cash from his pocket. Loftis threw S.A. to the ground.

Loftis began to run away but tripped and fell and dropped his gun. S.A. ran and picked the gun up as Loftis and Pacheco were running toward a Dodge Durango parked nearby. S.A. believed the robbers could have had another gun and might have attempted to kill him and D.M., so S.A. fired three or four rounds at Loftis, aiming at his lower body. Loftis was hit in the leg and fell to the ground. Pacheco got into the waiting Durango and drove away. S.A. went over to Loftis, removed his mask, and told his coworkers to call police.

Loftis told the responding officers, “They put me up to it. It was Marco Perez and Jorge Pacheco.” He said Perez and Pacheco drove away in the Durango and left him there. He stated that the robbery was Pacheco's idea and that he felt pressured into participating. He further advised that Perez worked with the people at that vineyard.

DISCUSSION

I. Prior strike conviction

Loftis contends the trial court abused its discretion in denying his Romero motion. We disagree for the following reasons.

In the furtherance of justice, a trial court may strike or dismiss a prior conviction allegation. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 504.) A court's ruling on a Romero motion is reviewed under the deferential abuse of discretion standard; that is, the defendant must show the sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 375, 377 (Carmony).) It is not enough to show reasonable people might disagree about whether to strike a prior conviction. (Id. at p. 378.) 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.” (Ibid.) Only extraordinary circumstances justify a finding that a career criminal is outside the Three Strikes law. (Ibid.) 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.” (Ibid.)

When considering whether to strike prior conviction allegations, a court considers “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his 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 he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) The record before us reveals no basis for concluding, as a matter of law, Loftis falls outside the spirit of the Three Strikes law.

Loftis committed the current offenses when he was 21 years old, two days before his twenty-second birthday. He committed his prior strike offense in 2012 when he was 15. That conviction was for assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), with an enhancement for participating in a criminal street gang (§ 186.22, subd. (b)(1)). He and a codefendant punched a woman of unspecified age with closed fists.

The 2012 case was directly filed in adult criminal court. Loftis pled no contest to the assault and admitted the gang enhancement allegation; he was placed on probation for five years. The court revoked his probation after he was found in possession of a knife at his high school and sentenced him to four years in prison. He paroled in September 2017 and was on parole at the time of the current offenses.

Loftis contends the trial court abused its discretion in denying his Romero motion because he was young when he committed his first strike and because the prior strike was not that serious in nature. He stresses that 15-year-olds under the current law, as recently amended, may not be tried as adults for the crime he was convicted of in 2012. (Welf. & Inst. Code, § 707, subds. (a)(1), (a)(2), and (b)(14).) He also notes the assault offense was eligible to be a strike only because of the accompanying gang enhancement. (§ 1192.7, subd. (c)(28) [defining as a “serious felony” “any felony offense, which would also constitute a felony violation of Section 186.22”].)

However these factors do not compel a finding that Loftis is outside the scope of the Three Strikes law. While his prior strike was not that violent in nature compared to other strike offenses, he violated his probation by bringing a knife to school. Also, while he was only 15 when he committed his first offense and his two strike offenses were separated by about six years, these factors are counterbalanced by the facts that he had only been out of prison for just over a year and was still on parole when he...