People v. Mabon

1

THE PEOPLE, Plaintiff and Respondent, v. TROY DOMINIC MABON, Defendant and Appellant.

A165624

California Court of Appeals, First District, Fifth Division

June 18, 2024

NOT TO BE PUBLISHED

(Alameda County Super. Ct. No. 144197)

Jackson, P. J.

This is an appeal from a postjudgment resentencing order denying the request of defendant Troy Mabon to strike a firearm enhancement pursuant to Penal Code sections 1385, as amended by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81), and 12022.53, as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620).^[1] Defendant convicted of first degree murder in 2004, contends this ruling was an abuse of the trial court's discretion for several reasons, including that the court misinterpreted section 1385, relied on improper facts, and failed to consider applicable mitigating factors. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case is before us on appeal for the third time. In the name of judicial efficiency, we decline to restate the full factual and procedural background. Instead, we refer our readers to our prior nonpublished opinions (People v Mabon (Oct. 24, 2006, A109378) (Mabon I); People v Mabon (May 19, 2021, A159361) (Mabon II)), which together provide this information.^[2]

Briefly, in 2004 a jury convicted defendant, then 23 years old, of: (1) first degree murder (Pen. Code, § 187, subd. (a); count 1) with an enhancement for personally and intentionally discharging a firearm causing death (Pen. Code, § 12022.53, subds. (c), (d)); (2) possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1); count 2); and (3) evading a police officer (Veh. Code, § 2900.2, subd. (a); count 4). Defendant was sentenced to 51 years 4 months to life in prison, comprised of an indeterminate term of 25 years to life on count 1 plus a consecutive 25-year term on the firearm enhancement, and consecutive determinate terms of eight months each for counts 2 and 4. This court affirmed the conviction in Mabon I after defendant appealed on instructional grounds.

In 2019, the trial court purported to amend the abstract of judgment to correct certain sentencing errors, resulting in a reduced sentence of 50 years to life. After defendant appealed, this court concluded in Mabon II that the trial court imposed an unauthorized sentence and reversed and remanded the matter for a full resentencing.

On May 31, 2022, the trial court resentenced defendant to 50 years to life, comprised of 25 years to life for count 1 and 25 years for the firearm enhancement, with concurrent determinate terms on counts 2 and 4. In doing so, the trial court denied defendant's request under recently amended sections 1385 and 12022.53 to strike the firearm enhancement after concluding aggravating circumstances in the case outweighed mitigating circumstances. This timely appeal followed.

DISCUSSION

Defendant contends the trial court abused its discretion under section 1385 in declining to strike the firearm enhancement by: (1) relying exclusively on the facts underlying his murder conviction without considering his current dangerousness; (2) misinterpreting the mitigating circumstance delineated in section 1385, subdivision (c)(2)(C); (3) relying on uncredible testimony from an in-custody informant in violation of section 1111.5; (4) relying on facts in the supplemental probation report and our Mabon I opinion without assessing whether each fact had sufficient evidentiary weight; and (5) failing to consider his youth as a mitigating circumstance. In addition, defendant contends the trial court's multiple errors were cumulatively prejudicial. We set forth the governing law before turning to each claim.

I. Legal Framework.

"Section 1385 provides that a court may, 'in furtherance of justice, order an action to be dismissed.' (Id., subd. (a).) Though section 1385 literally authorizes the dismissal of 'an action,' it has been construed to permit the dismissal of parts of an action [citation], including a weapon or firearm use enhancement [citations]. Further, the statute's application is broad: 'Section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent.'" (People v. Tirado (2022) 12 Cal.5th 688, 696 (Tirado).)

On January 1, 2018, while defendant was incarcerated, Senate Bill 620 went into effect. Relevant here, under this bill, the following language was added to section 12022.53: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h); Stats. 2017, ch. 682.) This statutory framework also permits a court to strike the section 12022.53, subdivision (d) enhancement found true by the jury and to impose a lesser included, uncharged statutory enhancement authorized under section 12022.53 or elsewhere in the Penal Code. (Tirado, supra, 12 Cal.5th at pp. 692, 696, 702; People v. McDavid (2024) 15 Cal.5th 1015, 1021.)

The factors that guide the trial court in deciding whether to strike or lessen a section 12022.53 firearm enhancement pursuant to section 1385, subdivision (a) are the same as those factors the court must weigh in handing down a sentence in the first instance. (People v. Pearson (2019) 38 Cal.App.5th 112, 117 (Pearson); People v. Flores (2021) 63 Cal.App.5th 368, 377.) "These factors include those listed in California Rules of Court, rule 4.410 (general objectives in sentencing), rules 4.421 and 4.423 (circumstances in aggravation and mitigation), and rule 4.428(b) (discretion in striking an enhancement and punishment for an enhancement under § 1385). These rules refer to circumstances specific to the crime and the defendant's criminal history, as well as to broader societal objectives, such as '[d]eterring others from criminal conduct by demonstrating its consequences' and '[i]ncreasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.' (Cal. Rules of Court, rule 4.410(a)(4), (8).) The rules state the trial court 'should be guided by statutory statements of policy, the criteria in [the Rules of Court], and any other facts and circumstances relevant to the case.' (Id., rule 4.410(b).)" (Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 497; accord, People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322.)

On January 1, 2022, approximately five months before defendant's resentencing hearing, Senate Bill 81 went into effect. (Stats. 2021, ch. 721, § 1.) This bill, among other things, amended section 1385 to provide further guidance for a trial court deciding whether to strike an enhancement. Relevant here, new language in section 1385, subdivision (c) provides: "(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." Defendant contends one of these mitigating circumstances exists here: "(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed." (§ 1385, subd. (c)(2)(C).)

Thus, the provisions of section 1385, "taken together, explicitly and unambiguously establish[]: the trial court has discretion to dismiss sentencing enhancements; certain circumstances weigh greatly in favor of dismissal; and a finding of danger to public safety can overcome the circumstances in favor of dismissal." (People v. Anderson (2023) 88 Cal.App.5th 233, 239, review granted Apr. 19, 2023, S278786; People v. Mendoza (2023) 88 Cal.App.5th 287, 296 ["if the court finds that dismissal of an enhancement 'would endanger public safety,' then the court need not consider the listed mitigating circumstances"].)

On appeal, we generally review a trial court's sentencing decision for abuse of discretion, meaning we affirm if the court exercised its discretion "in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'" (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Under this standard,"' "[defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record "clearly indicate[s]" that the trial court would have reached the same conclusion "even if it had been aware that it had such discretion." '" (People v. Salazar (2023) 15 Cal.5th 416, 424.)

II. Application of the Law to the Facts.

At defendant's resentencing hearing, the trial court identified a variety of facts based on its review of the record, including the recently filed supplemental probation report and our Mabon I opinion, that it deemed significant. The court first noted defendant shot the victim four times in...