California Court of Appeal Mar 28, 2023 No. E079798Unpublished
Filed 3/28/23 P. v. Delahanty CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079798
v. (Super. Ct. No. SWF1807090)
BRIAN THOMAS DELAHANTY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez,
Judge. Vacated and remanded with directions.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and A.
Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Brian Thomas Delahanty appeals following a remand for
resentencing. On appeal, he contends the trial court failed to exercise its discretion and
determine whether to strike or dismiss his prior serious felony enhancement, taking into
account the direction provided by Senate Bill No. 81, as directed by this court when we
remanded the matter the first time. The People agree that contrary to this court’s
direction in the remittitur, the record reflects a failure of the trial court to take into 1 account amended Penal Code section 1385 when it denied to strike the prior serious
felony. We also agree. Accordingly, we remand the matter for another resentencing
hearing to allow the trial court to exercise its informed discretion to strike or dismiss
defendant’s prior serious felony, taking into account the directions provided by Senate 2 Bill No. 81 and section 1385, subdivision (c).
II. 3 PROCEDURAL BACKGROUND
In 2019, a jury found defendant guilty of first degree burglary (§§ 459/460), and
1 All future statutory references are to the Penal Code unless otherwise stated. 2 In light of the People’s concession and disposition, we need not address defendant’s contentions relating to ineffective assistance of counsel. 3 Because the factual background is not relevant to the issues raised on appeal, we will not recount those facts. Those details are found in our nonpublished opinion in defendant’s prior appeal, case No. E076839, which is part of the record on appeal in this [footnote continued on next page]
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also found true the allegation that a person other than an accomplice was present in the
residence at the time of the burglary (§ 667.5, subd. (c)(21)). In a bifurcated proceeding,
defendant admitted that he had sustained a prior serious felony (§ 667, subd. (a)) and a
prior strike (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) based on his 1998
conviction for carjacking. The trial court sentenced defendant to an aggregate term of 13
years in state prison as follows: the midterm of four years for the burglary, doubled to
eight years due to the prior strike, and a consecutive five-year term for the prior serious
felony. (Delahanty I, supra, E076839.)
Defendant subsequently appealed. He argued the matter must be remanded for
resentencing to allow the trial court to exercise its discretion to strike the five-year prior
serious felony conviction because the court was unaware that it had discretion to strike
the enhancement, his counsel was ineffective in failing to ask the court to exercise its
discretion to strike the prior serious felony, and the matter should be remanded under
Senate Bill No. 81, which provides sentencing courts with guidance when considering
whether to strike an enhancement. (Delahanty I, supra, E076839.) We affirmed the
judgment but remanded the matter for resentencing “to allow the trial court to exercise its
discretion and determine whether to strike or dismiss the section 667, subdivision (a)(1)
serious felony enhancement, taking into account the direction provided by Senate Bill
No. 81.” (Delahanty I, supra, E076839.)
case as Exhibit A of defendant’s request for judicial notice. (People v. Delahanty (Mar. 4, 2022, E076839) [nonpub. opn.] (Delahanty I).)
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Following remand, defense counsel filed a motion to strike the section 667,
subdivision (a) prior serious felony conviction pursuant to section 1385 and People v.
jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their
function to attempt to overrule decisions of a higher court.’” (Id. at p. 1362, citing Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In other words, the
appellate court’s “directions are ‘binding on the trial court and must be followed. Any
material variance . . . is unauthorized and void.’” (Dutra, supra, at p. 1367, quoting
Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982.)
An appellate court’s decision is found in the disposition section of its opinion, and
it is the disposition which constitutes the judgment on appeal. (People v. Awad (2015)
238 Cal.App.4th 215, 223.) “The appellate court need not expressly comment on every
matter intended to be covered by the disposition. The disposition is construed according
to the wording of its directions, as read with the appellate opinion as a whole.
[Citation.] . . . [Citation.] [¶] Whether the trial court has correctly interpreted an
appellate opinion is an issue of law subject to de novo review. In interpreting the
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language of a judicial opinion, the appellate court looks to the wording of the
dispositional language, construing these directions ‘in conjunction with the opinion as a
whole.’ [Citations.]” (Ducoing Management, Inc. v. Superior Court (2015) 234
Cal.App.4th 306, 313.)
Here, our directions in Delahanty I were specific. First, we affirmed the judgment
of conviction. Second, we remanded the matter “to allow the trial court to exercise its
discretion and determine whether to strike or dismiss the section 667, subdivision (a)(1)
serious felony enhancement, taking into account the direction provided by Senate Bill
No. 81.” (Delahanty I, supra, E076839.) We also noted in the last paragraph of the
discussion section that “because the trial court must resentence defendant so that it can
exercise its informed discretion whether to strike the prior serious felony enhancement
under section 667, subdivision (a)(1), which will occur after the effective date of Senate
Bill No. 81, we leave the effect on defendant’s sentence from the changes to section
1385, or any other relevant change the parties may elect to raise, for the trial court and
the parties to consider in the first instance.” Although the resentencing court and defense
counsel referenced by name “SB 81,” the record indicates that the court did not take into
account the substance of Senate Bill No. 81, which amended section 1385, as ordered in
the disposition. In addition, neither the resentencing court nor defense counsel addressed
any of the mitigating factors as set forth in section 1385, subdivision (c).
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As we explained in Delahanty I, prior to enactment of Senate Bill No. 81, section
1385 provided a trial court may dismiss sentencing enhancements in the interest of
justice. Senate Bill No. 81, which became effective on January 1, 2022, amended section
1385 by adding new subdivision (c). This new subdivision provides in relevant part “(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. ‘Endanger public safety’ means there is a likelihood that the dismissal of
the enhancement would result in physical injury or other serious danger to others.” (Sen.
Bill No. 81 (2021-2022 Reg. Sess.) ch. 721, § 1, pp. 1-3.) New section 1385, subdivision
(c)(7) also provides, “This subdivision shall apply to sentencings occurring after the
effective date of the act that added this subdivision.”
Like the first sentencing hearing, here the resentencing court was presented with
briefs and arguments relying on prior and/or inaccurate considerations, not on amended
section 1385 or Senate Bill No. 81. Under the former section 1385 effective through the
end of 2021, trial courts were permitted to strike or dismiss an enhancement in the
furtherance of justice but were not required to consider any specific factors. As pointed
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out by the court, both the defense and the prosecution analyzed the issue of striking the
section 667, subdivision (a) prior serious felony under Romero. When defense counsel
cited section 1385, it was to the version in 2019, which did not create any presumptions
concerning applicable mitigating circumstances. Although the resentencing court
correctly indicated that it was to apply its discretion to strike the section 667, subdivision
(a) prior under section 1385, it failed to analyze any of the considerations set forth in
subdivision (c) of section 1385, as ordered by this court. Rather, the court examined
“interests of justice” in terms of defendant’s conduct in committing the offense and
whether punishment was excessive.
Section 1385, subdivision (c) lists nine specific factors, which, if found by the
court, will strongly support the exercise of the court’s discretion. These factors include:
“(A) Application of the enhancement would result in a discriminatory racial impact as
described in paragraph (4) of subdivision (a) of [s]ection 745. [¶] (B) Multiple
enhancements are alleged in a single case. In this instance, all enhancements beyond a
single enhancement shall be dismissed. [¶] (C) The application of an enhancement could
result in a sentence of over 20 years. In this instance, the enhancement shall be
dismissed. [¶] (D) The current offense is connected to mental illness. [¶] (E) The
current offense is connected to prior victimization or childhood trauma. [¶] (F) The
current offense is not a violent felony as defined in subdivision (c) of [s]ection 667.5. [¶]
(G) The defendant was a juvenile when they committed the current offense or any prior
offenses, including criminal convictions and juvenile adjudications, that trigger the
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enhancement or enhancements applied in the current case. [¶] (H) The enhancement is
based on a prior conviction that is over five years old. [¶] (I) Though a firearm was used
in the current offense, it was inoperable or unloaded.” (§ 1385, subd. (c)(2)(A)-(I).)
“The circumstances listed in paragraph (2) are not exclusive and the court maintains
authority to dismiss or strike an enhancement in accordance with subdivision (a).”
(§ 1385, subd.(c)(4).)
Unlike under Romero, section 1385, subdivision (c) places great weight in favor of
dismissing the prior where a mitigating circumstance has been shown “unless the court
finds that dismissal of the enhancement would endanger public safety.” (§ 1385, subd.
(c)(2).) It appears in this case the resentencing court failed to apply the current version of
section 1385 based on its reasoning in declining to dismiss the section 667, subdivision
(a) prior serious felony, the motions filed by the parties, and the arguments of defense
counsel and the prosecutor.
Our directions on remand were stated in the disposition. As the resentencing court
did not follow the directions given, its order after remand is void. (Dutra, supra, 145
Cal.App.4th at p. 1367.) We shall therefore again remand the matter for another
resentencing hearing to allow the trial court to exercise its informed discretion to strike or
dismiss defendant’s prior serious felony enhancement, taking into account the directions
provided by Senate Bill No. 81 and section 1385, subdivision (c).
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IV.
DISPOSITION
The sentence is vacated and the cause is again remanded to allow the trial court to
exercise its discretion and determine whether to strike or dismiss the section 667,
subdivision (a)(1) serious felony enhancement, taking into account the directions
provided by Senate Bill No. 81 and section 1385, subdivision (c).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court vacated the defendant's sentence and remanded for a new resentencing hearing because the trial court failed to apply the mandatory mitigating factors and guidance set forth in Senate Bill No. 81 and Penal Code section 1385, subdivision (c).
Issues
Whether the trial court failed to comply with the appellate court's remittitur by not applying the requirements of Senate Bill No. 81 and Penal Code section 1385, subdivision (c) during resentencing.
Disposition. vacated and remanded
Quotations verified verbatim against the opinion
“the record indicates that the court did not take into account the substance of Senate Bill No. 81, which amended section 1385, as ordered in the disposition.”
“the resentencing court failed to apply the current version of section 1385”
“the matter must again be remanded for another resentencing hearing to allow the superior court to determine whether to strike defendant’s prior serious felony conviction”