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C.A. Declines to Apply Certain Mitigating Factors to Strikes
Opinion Says Preamble to 2024 Bill Which Purportedly Says ‘Courts Should Consider’ Factors Governing Enhancements When Reassessing Strikes Does Not Warrant Departure From Rule That Inapplicable
By Kimber Cooley, associate editor
Div. Five of the First District Court of Appeal has affirmed an order denying a defendant’s motion during a resentencing hearing to dismiss his prior strike convictions, rejecting the argument that the trial judge erred by not applying the mandatory criteria for vacating enhancements set forth in Penal Code §1385(c).
Sec. 1385(c) provides that a court, in exercising its discretion to dismiss or strike an enhancement, “shall consider and afford great weight to evidence offered by the defendant to prove” certain listed mitigating circumstances including that the “current offense is connected to prior victimization or childhood trauma” and “[t]he defendant was a juvenile when [he] committed…any prior offenses.”
The court—in an opinion filed Tuesday, authored by Justice Danny Y. Chou and joined in by Presiding Justice Teri L. Jackson and Justice Mark B. Simons—was unpersuaded that the adoption of Assembly Bill 600, effective last Jan. 1, justifies a departure from the “well-established” position that the criteria do not apply to sentences derived from the alternative sentencing scheme of the Three Strikes law.
Assembly Bill 600, codified in Penal Code §1172.1, allows a court, on its own motion, to recall and resentence a defendant if reconsideration is recommended by certain parties, such as the local district attorney, based on new statutory authority or case law. The defendant in the appeal pointed to uncodified language in the preamble which provides:
“It is the…intent of the Legislature that courts have full discretion in resentencing proceedings pursuant to Section 1172.1 of the Penal Code to reconsider past decisions to impose prior strikes….Courts should consider Section 1385…, postconviction factors, or any other evidence that continued incarceration is no longer in the interests of justice.”
Strike Priors
Appealing the order denying his Romero motion—so-named after the 1996 California Supreme Court decision in People v. Romero establishing that a court may strike a prior conviction alleged under the Three Strikes law in the interests of justice under §1385—was Gregory Dowdy, who was convicted of robbery relating to a 1998 incident where he presented a bank teller with a note threatening to “blow her head away.”
He was on parole for robbery and attempted robbery when he committed the crime. Dowdy was sentenced to an aggregate term of 32 years to life in prison, which included a 25-year-to-life sentence for second-degree robbery due to his two prior robbery-related convictions. His sentence also reflected a consecutive year for each of his two prior prison terms under former §667.5(b), among other enhancements.
After the passage of Senate Bill 136, effective Jan. 1, 2020, which limited §667.5(b) enhancements to prior sexually violent offenses and added §1172.75 to provide for the resentencing of defendants serving now-legally-invalid sentences, Dowdy petitioned to have his sentence recalled.
In addition to asking the court to strike the former §667.5(b) enhancements, Dowdy requested that the court dismiss his prior strike convictions under §1172.75(c), which provides that a court shall “apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.”
He urged the court to apply the criteria set forth in §1385(c) for the dismissal of enhancements, citing his neglect as a child due to his father’s alcoholism, his own history of abusing substances since childhood, and that he was 19 and 26 years old when he committed the prior strike offenses.
Contra Costa Superior Court Judge Julia Campins struck Dowdy’s two prior prison term enhancements, and exercised discretion to dismiss a separate five-year enhancement, but denied the motion to dismiss his prior strike convictions. Campins resentenced him to 25 years to life in prison.
Uncodified Legislative Intent
Chou said that “[f]or several reasons, the uncodified legislative intent pertinent to section 1172.1 does nothing to suggest that section 1385, subdivision (c) should apply when considering whether to strike a prior conviction under the Three Strikes law, at least in the context of Dowdy’s resentencing under section 1172.75.”
He continued:
“First, Assembly Bill 600 amended the resentencing procedure established by section 1172.1, which pertains to a resentencing commenced upon the court’s own motion or recommendation by a party such as a correctional authority or district attorney. Dowdy was resentenced not pursuant to section 1172.1, but pursuant to a recall and resentencing mandated by section 1172.75. Because Assembly Bill 600 amended section 1172.1—but not section 1172.75—the expression of legislative intent in Assembly Bill 600, on its face, has no relevance to this case.”
Dowdy argues that the Legislature’s statement of intent mandated the application of the mitigating factors in §1385(c) to all Romero motions, explicitly for those resentencing proceedings under section 1172.1 and implicitly for those under section 1172.5. He contends it would not make sense to have different standards for Romero motions depending on which section governed the resentencing hearing, citing the equal protection concerns.
Chou responded:
“Dowdy fails to establish any equal protection problem or address the significance of the distinction between section 1172.1 and section 1172.75. Section 1172.1 applies where the trial court decides that resentencing is appropriate on its own motion or upon the recommendation of a correctional administrator, district attorney, or the like; section 1172.75 applies automatically and mandatorily when a sentence enhancement was imposed under section 667.5, subdivision (b). Moreover, Assembly Bill 600 explicitly limited its declaration of intent to ‘resentencing proceedings pursuant to Section 1172.1 of the Penal Code.’….Nothing in Assembly Bill 600 indicates that the declaration applies to all resentencings or all Romero motions.”
‘Great Weight’ Missing
The jurist added:
“[E]ven if Assembly Bill 600 purported to state a legislative view relevant to resentencing proceedings under section 1172.75, we question whether Assembly Bill 600 suggests a legislative intent to apply section 1385, subdivision (c) to Romero motions in Three Strike cases….[I]t does not say that the ‘great weight’ afforded to mitigating circumstances under section 1385, subdivision (c) should be applied in all Romero motions. Nor does it say that the term ‘enhancement’ as used in section 1385, subdivision (c) includes a prior strike under the Three Strike laws, which contravenes what courts of appeal have consistently held for years.”
Dowdy also pointed to other language in Assembly Bill 600 which says that “[i]t is the intent of the Legislature that, in cases where the judge concludes that recall and resentencing pursuant to Section 1172.1…is appropriate, the resentencing result in a meaningful modification” and argues that the resentencing in his case did not “meaningfully” modify his sentence because he had already initiated the process to seek parole.
Chou remarked:
“Dowdy’s argument is untenable. If, in a resentencing under section 1172.5, the only meaningful modification for a third striker who has begun the parole process was the dismissal of a prior strike conviction, then any such third striker who had a prior prison term enhancement would not just obtain relief from the enhancement, he would automatically obtain relief from the Three Strikes law and be released from prison—without a parole board determination of public safety or even an analysis of public safety under section 1385, subdivision (c). This could not have been what the Legislature intended in its uncodified preamble to section 1172.1.”
The case is People v. Dowdy, 2024 S.O.S. 3760.
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