California Court of Appeal Sep 7, 2023 No. E080435Unpublished
Filed 9/7/23 P. v. Kemp 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E080435
v. (Super.Ct.No. RIF105475)
ERIC SHAWN KEMP, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
James R. Bostwick, Jr., 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, Steve Oetting and Paige
B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
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At a resentencing hearing pursuant to Penal Code section 1172.75,1 the court
denied defendant and appellant, Eric Shawn Kemp’s, motion to strike his prior strike
convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero). On appeal, defendant contends the court abused its discretion. We affirm.
While executing a search warrant on a home in Riverside on August 29, 2002,
officers found defendant in possession of a loaded handgun and six small bags of rock
cocaine. Defendant admitted he had been selling rock cocaine for about five or six
weeks. (Kemp, supra, E033849.)
A jury convicted defendant of possession of cocaine while personally armed with
a firearm (Health & Saf. Code, § 11351.5, count 1) and being a felon in possession of a
handgun (Pen. Code, § 12021, subd. (a)(1), count 2). The jury also found true
enhancement allegations that defendant was personally armed with a firearm in his
commission of the count 1 offense (Pen. Code, § 12022, subd. (c)) and that he had
previously been convicted of a drug offense (Health & Saf. Code, § 11370.2, subd. (a)).
In a separate proceeding, the trial court found true allegations that defendant had suffered
two prior serious felony convictions (Pen. Code, § 667, subd. (c)), two prior strike
1 All further statutory references are to the Penal Code unless otherwise stated.
2 On the court’s own motion, we take judicial notice of our prior opinion in defendant’s appeal from the original judgment, which was quoted in the People’s opposition to defendant’s Romero motion. (People v. Kemp (May 21, 2004, E033849) [nonpub. opn.]; Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).)
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convictions (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12), and two prior prison terms
At defendant’s sentencing hearing, his attorney requested, as pertinent here, that
the trial court dismiss “all the prior offenses, the enhancements.” Defense counsel asked
the court to “strike the enhancements and priors in the interest of justice.”
The court responded that it “doesn’t feel it should. You know, I didn’t make these
laws, the people [sic] did. And the Legislature did.” Defense counsel replied, “With all
due respect, before my client stands [to be sentenced], we understand you did not make
the laws. You do have the discretion as a judicial officer of the court to dismiss them.
We’d ask you to do that.” The trial court declined, stating, “It comes within the spirit, as
well as the letter, of the law.” The court sentenced defendant to a total indeterminate
term of 34 years to life in state prison. (Kemp, supra, E033849.)
Defendant appealed. As relevant here, defendant contended the trial court was
unaware of its discretionary authority under section 1385 to strike the prior drug
conviction allegation. This court disagreed. This court modified the sentence but
otherwise affirmed the judgment. (Kemp, supra, E033849.)
On April 25, 2022, the court, pursuant to Senate Bill No. 483,3 struck defendant’s
prior prison term enhancements (§ 667.5, subd. (b)), struck punishment for the prior drug
conviction enhancement (§ 11370.2, subd. (a)), and set the matter for a hearing on a
3 “Senate Bill No. 483 added section 1171.1 to the Penal Code, which was subsequently renumbered without substantive change as section 1172.75. (Stats. 2022, ch. 58, § 12, eff. June 30, 2022.)” (People v. Monroe (2022) 85 Cal.App.5th 393, 399 (Monroe).)
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proposed Romero motion. On October 5, 2022, defendant filed a motion in which he
requested the court strike his prior strike convictions pursuant to Romero.
Defendant submitted 19 exhibits in support of his Romero motion including:
letters of character reference; an investigator’s report from 2003 containing a character
reference from defendant’s former girlfriend; an investigator’s report from 2022
reflecting that defendant had been traumatized as a youth due to daily domestic violence
in the home and the killing of his uncle; a prison rule violation from 2006 for creating a
“modesty curtain” out of “altered state linen”; a prison report from 2022 reflecting that
defendant had the lowest possible California Static Risk Assessment score; prison reports
showing defendant’s prison work history; a number of positive prison work experience
evaluations; numerous certificates of completion and participation in various skills
trainings and personal improvement programs; reports that defendant had completed a
gang recovery program, and had disassociated himself from his prior gang affiliation; a
note of “exemplary conduct”; a reentry plan; relapse prevention plans for domestic
violence, drug use, and drug sales; and letters of opportunity and promises to help support
him upon his release from prison.
On November 1, 2022, the People filed opposition to defendant’s Romero motion.
The People noted that defendant’s prior strike convictions were for robbery and assault
with a firearm committed respectively on June 28, 1991, and December 2, 1996. He was
on parole when he committed the instant offenses. Defendant had previously sustained
two parole and two probation violations. Thus, the People argued defendant had engaged
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in a pattern of violent criminal activity such that the court should deny his Romero
motion.
At a hearing on December 5, 2022, the court indicated it had been “a little bit on
the fence.” The court noted that “if I was sentencing [defendant] when this offense
originally happened, it’s a no-brainer. It’s a no-brainer. He was a poster child for
recidivism treatment. So the question for me really becomes, did he do something in
prison that absolutely demonstrates an epiphany for me.”
The court then recounted several examples of defendants whose “extraordinary”
behavior after imprisonment led the court to strike a prior strike or enhancement: “All of
those were clear cases of people really, really, showing through actions and words that
they had changed their lives.”
The court noted that there were “some similarities” between those individuals and
defendant; however, defendant’s prior strike conviction offenses were “violent” and
“dangerous.” Defendant “would get on probation and get in trouble again, or get on
parole and get in trouble again.” Although the instant offense was “a bit more
innocuous,” the court noted defendant “had just been released not too long out on parole
[and] is not only—in possession of drugs, but he’s armed again.”
The court continued, “I don’t think—well, I’m not going to exercise my discretion
unless I see something that is so extraordinary that I—for someone with his record[, an]
unimpeded and uninterrupted stream of criminality that almost always has some aspect of
violence to it. The last one, the reason I’m saying that, is he was not violent with
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anybody, but here he is again selling and he’s armed already while he’s still on parole.
Given the conduct, I cannot at this time say that I feel that he has had an epiphany of [the]
magnitude that I think justifies striking the strike, . . .” “[I]mplicit within this whole
analysis is, either the wors[e] the instant conduct is or the wors[e] the record is, the
greater level of epiphany I need to see, if that makes any sense.” The court denied the
motion.
II. DISCUSSION
Defendant contends the court abused its discretion in denying his motion to strike.
He maintains that Senate Bill No. 81’s amendments to section 1385 apply to a court’s
determination of whether to strike a prior strike conviction. Defendant argues that the
court’s failure to apply the mitigating criteria in amended section 1385 was an abuse of
discretion.
The People counter that defendant’s failure to raise below the application of
Senate Bill No. 81 to his Romero motion forfeited the issue on appeal. They additionally
maintain that Senate Bill No. 81’s liberalized criteria are not applicable to a court’s
decision to strike a prior strike conviction. Thus, the People contend the court acted
within its discretion in denying defendant’s Romero motion. We agree with the People.
A. Forfeiture
The People contend defendant forfeited any applicability of Senate Bill No. 81 to
his Romero motion by failing to raise that basis in his motion below. We agree.
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Failure to raise an issue at sentencing forfeits the issue on appeal. (People v.
Keene (2019) 43 Cal.App.5th 861, 862; see People v. Romero and Self (2015) 62 Cal.4th
1, 49 [“He did not object on this basis below, and the claim is therefore forfeited.”].)
Here, defense counsel did not raise any issues with respect to Senate Bill No. 81’s
applicability to his Romero motion at the hearing below. Thus, the issue was forfeited.
Nonetheless, we can decline to find forfeiture or reach the merits even if the issue has
been forfeited. (Monroe, supra, 85 Cal.App.5th at p. 400.) We do so here.
B. Application of Senate Bill No. 81
Defendant acknowledges, “Caselaw has held that the Three Strikes Law is an
alternative sentencing scheme, not an enhancement.” Indeed, defendant concedes that the
recent amendment does not define “enhancement,” which means “that the legislators
considered the inclusion of a definition unnecessary because the term had already been
defined in the rules of court and court decisions. [Citations.]” Nevertheless, defendant
argues interpretation of the statute requires that we interpret it in a “broader sense that
includes strikes . . . .” Defendant maintains that the “in furtherance of justice” concept in
the statute is an “amorphous concept,” which can extend to the dismissal of prior strike
conviction findings. We disagree.
“Whether the amendments to section 1385 apply to prior strike convictions is a
question of statutory interpretation which we review de novo. [Citation.] ‘To resolve
whether defendant’s interpretation of the . . . statute[] is correct, we are guided by
familiar canons of statutory construction. “[I]n construing a statute, a court [must]
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ascertain the intent of the Legislature so as to effectuate the purpose of the law.”
[Citation.] In determining that intent, we first examine the words of the respective
statutes: “If there is no ambiguity in the language of the statute, ‘then the Legislature is
presumed to have meant what it said, and the plain meaning of the language governs.’
[Citation.] ‘Where the statute is clear, courts will not “interpret away clear language in
favor of an ambiguity that does not exist.” [Citation.]’ ” [Citation.] If, however, the
terms of a statute provide no definitive answer, then courts may resort to extrinsic
sources, including the ostensible objects to be achieved and the legislative history.
[Citation.] “We must select the construction that comports most closely with the
apparent intent of the Legislature, with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
We agree with the courts in Burke and Tilley that Senate Bill No. 81 applies only
to enhancements and that prior strike convictions are not enhancements. Thus, the court
did not abuse its discretion in not considering the mitigating factors enumerated in
amended section 1385 when denying defendant’s Romero motion.
C. Romero Motion.
Defendant contends the court abused its discretion in denying his Romero motion.
He maintains the court invented its own standard for reviewing his motion. We disagree.
“ ‘ “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.]” (People v. Fredrickson (2023) 90
Cal.App.5th 984, 988; accord, People v. Lopez (2022) 78 Cal.App.5th 459, 466-467.)
“While the purpose of the Three Strikes law is to punish recidivists more harshly
[citation], not all recidivists fall within the spirit of that law. A trial court therefore may
strike or dismiss a prior conviction in the furtherance of justice. [Citations.] When
considering whether to strike a prior conviction, the factors a court considers are whether,
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in light of the nature and circumstances of the defendant’s present felonies and prior
serious and/or violent felony convictions, and the particulars of the defendant’s
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 the defendant had not
previously been convicted of one or more serious and/or violent felonies. [Citation.]”
(People v. Avila (2020) 57 Cal.App.5th 1134, 1140 (Avila).)
“We review a trial court’s ruling on a Romero motion under the deferential abuse
of discretion standard, which requires the defendant to show that the sentencing decision
was irrational or arbitrary. [Citation.] It is not enough that reasonable people disagree
about whether to strike a prior conviction. [Citation.] 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.’ [Citation.] Only
extraordinary circumstances justify finding that a career criminal is outside the Three
Strikes law. [Citation.] 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.’ [Citation.]” (Avila, supra, 57 Cal.App.5th at p. 1140.)
Here, the court acted within its circumscribed discretion in denying defendant’s
motion to strike his prior strike convictions. The court stated that at the time he was
sentenced, defendant was a poster child for application of the three strikes law; the court
would have denied any Romero motion at that time without much thought. The court
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observed that defendant’s prior strike conviction offenses were “violent” and
“dangerous.” Defendant “would get on probation and get in trouble again, or get on
parole and get in trouble again.” When arrested for the most recent offense, defendant
had just recently been released on parole, and was in possession of both drugs and a
firearm. The court concluded that defendant had been engaged in an “unimpeded and
uninterrupted stream of criminality that almost always has some aspect of violence to it.”
The court’s findings are amply supported by the record. Defendant’s criminal
record began in 1989 when he was convicted of transportation or sales of controlled
substances. The court placed defendant on three years of probation. The court later
extended his probation. While still on probation in 1991 on the former offense, defendant
was convicted of possession of controlled substances. The court placed defendant on
three years of probation.
In March 1992, while still on probation in both prior offenses, defendant was
convicted of possession of cocaine base for sale. In April 1992, again while still on
probation, defendant was convicted of robbery. The court revoked defendant’s
probations and sentenced him to four years of imprisonment concurrent with the terms
imposed for the other offenses. Defendant was released on parole but violated the terms
of his parole and was returned to finish his term.
In 1997, not long after release on parole, defendant was convicted of assault with a
firearm. The court sentenced him to four years of imprisonment. Defendant was twice
released on parole and twice violated his parole, on the last occasion by his commission
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of the current offense. The court’s determination that defendant was not outside of the
three strikes scheme was well within its discretion.
Defendant contends that the court improperly wrote its own standard for ruling on
a Romero motion. We disagree.
As recounted ante, the court looked at defendant’s criminal history in determining
whether defendant was outside the scope of the three strikes scheme, which is precisely
what the law requires. In determining that defendant was not outside that scheme, the
court identified defendant’s criminal history, specifically his prior offenses, which
involved violence, and his numerous probation and parole violations. The court’s failure
to find “extraordinary” prison conduct and/or a personal “epiphany” which would
counterbalance defendant’s criminal record was well within its discretion. (See People v.
Bernal (2019) 42 Cal.App.5th 1160, 1170 [“[T]he presence of mitigating evidence is not
enough to render the trial court’s decision an abuse of discretion.”].)
III. DISPOSITION
The court’s order denying defendant’s Romero motion is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in denying the defendant's motion to strike prior strike convictions, and that the mitigating factors in Penal Code section 1385, subdivision (c) do not apply to the Three Strikes law.
Issues
Whether the mitigating factors in Penal Code section 1385, subdivision (c) apply to a motion to strike a prior strike conviction.
Whether the trial court abused its discretion in denying the defendant's Romero motion.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The plain language of subdivision (c) of section 1385 applies only to an ‘enhancement,’ and the Three Strikes law is not an enhancement. We therefore conclude that section 1385, subdivision (c)’s provisions regarding enhancements do not apply”
“The court’s determination that defendant was not outside of the three strikes scheme was well within its discretion.”