People v. Strong CA1/1

Filed 12/29/22 P. v. Strong CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A157060 v. DERRICK STRONG, (San Mateo County Super. Ct. No. 18-SF-011200-A) Defendant and Appellant.

Defendant Derrick Strong was convicted of first degree burglary following a jury trial. Defendant now appeals the trial court’s denial of his motion to strike his prior conviction during sentencing. He contends the court abused its discretion by considering a more dangerous burglary than actually occurred, and he asserts remand is required for resentencing under Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). We agree defendant is entitled to resentencing but otherwise affirm the judgment. I. BACKGROUND The San Mateo County District Attorney charged defendant by information with first degree burglary of an occupied dwelling (Pen. Code,1 §§ 460, subd. (a), 667.5, subd. (c); count 1). The information further alleged

1 All further statutory references are to the Penal Code.

defendant had a prior strike (§ 1170.12, subd. (c)(1)), three serious felony priors (§ 667, subd. (a)(1)), and a prison prior (§ 667.5, subd. (a)). At trial, defendant testified he found the homeowners’ keys in their apartment door and went inside to investigate. He admitted entering the apartment multiple times and taking several items. The homeowners woke up to discover defendant in their apartment and called 911. Defendant told the homeowners he found their cell phone and wallet downstairs, took them out of his pocket, and returned them. Defendant then left the apartment at the request of one of the homeowners. Police located defendant nearby and recovered the homeowners’ keys from his pocket. The jury found defendant guilty on count 1 and found the occupied dwelling enhancement allegation true. The trial court subsequently found all of the prior conviction allegations true. Prior to sentencing, defendant filed a motion requesting the trial court to exercise its discretion under section 1385, subdivision (a) and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to dismiss his prior strike conviction. Defendant primarily argued he was calm and nonviolent during residential burglary, and he returned the property at the request of the homeowners. He further noted he would participate in drug treatment and had strong family support. The court denied this request, noting defendant was “minimizing the nature of this offense.” The trial court then sentenced defendant to a total of 13 years, calculated by the middle term of four years, doubled for the prior strike, plus an additional five years for the serious felony prior. Defendant timely appealed.