THE PEOPLE,
`
`
`Plaintiff and Respondent,
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`v.
`
`
`NATHAN JARED ANDERSON,
`
`
` H050145
` (Santa Cruz County
` Super. Ct. No. F25697)
`
`Filed 12/4/23 P. v. Anderson CA6
`NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
`
`SIXTH APPELLATE DISTRICT
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`Defendant and Appellant.
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`In 2015, defendant Nathan Jared Anderson was sentenced to 15 years 8 months in
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`prison for a series of car thefts committed in 2013. In 2022, he was resentenced to
`13 years 8 months in prison. He appeals, contending that the resentencing court did not
`properly exercise its discretion under Senate Bill No. 81 (2021–2022 Reg. Sess.) to strike
`a five-year prior serious felony enhancement for his 2009 arson conviction. We will
`affirm the judgment.
`
`I. TRIAL COURT PROCEEDINGS
`Defendant pleaded no contest to carjacking (Pen. Code, § 215, subd. (a)),
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`attempted carjacking (Pen. Code, §§ 215, subd. (a), 664), two counts of evading a peace
`officer (Veh. Code, § 2800.2), and two counts of vehicle theft (Veh. Code, § 10851,
`subd. (a)). He admitted having suffered two prior prison terms (former Pen. Code,
`§ 667.5, subd. (b)), one prior strike (Pen. Code, § 667, subds. (b)–(i)), and one prior
`serious felony conviction for arson of a vehicle (Pen. Code, §§ 451, subd. (d), 667,
`subd. (a)) in 2009. Under the plea agreement, 13 additional counts were to be dismissed
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`after sentencing. All of the charged crimes took place between October 8 and 16, 2013.
`Because they occurred at different times, the probation officer recommended consecutive
`sentences totaling 31 years in prison. The trial court imposed concurrent sentences on the
`attempted carjacking count and the two vehicle theft counts and sentenced defendant to a
`total of 15 years 8 months in prison, including a five-year prior serious felony conviction
`enhancement.
`
`When defendant was initially sentenced in 2015, the trial court did not have
`discretion to strike a prior serious felony conviction and the associated five-year sentence
`enhancement. After legislative changes giving trial courts that discretion, defendant’s
`sentence was recalled in 2019 on recommendation of the Secretary of the Department of
`Corrections and Rehabilitation under Penal Code section 1170, subdivision (d) for the
`trial court to consider striking the five-year enhancement. The court declined to modify
`the sentence. According to the minute order from the hearing, the trial court based its
`decision on the “facts and circumstances of the convicted [sic] offense and the
`defendant’s performance at CDCR.”
`
`Defendant again sought resentencing in 2022, this time on the grounds that his two
`one-year prior prison term enhancements were no longer valid due to various statutory
`amendments. At the hearing on the petition, defense counsel also asked the court to
`strike the five-year prior serious felony enhancement under Penal Code section 1385.
`The court struck the two prior prison term enhancements, but did not strike the serious
`felony conviction enhancement. After stating that defendant was “very fortunate” not to
`have received the originally recommended sentence of 31 years in prison, and finding no
`“clear and convincing evidence that reduction would present a danger to the community,”
`the court reduced defendant’s sentence by two years but made no further modification.
`II. DISCUSSION
`Defendant’s sole contention on appeal is that the trial court abused its discretion
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`under Penal Code section 1385 by not striking the serious felony conviction
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`enhancement. Under Penal Code section 1385, subdivision (c), which was added by
`Senate Bill No. 81, a trial court must “consider and afford great weight” to evidence of
`specified mitigating circumstances when determining whether to strike a sentencing
`enhancement. (Pen. Code, § 1385, subd. (c)(2). Further statutory references are to this
`Code, and unspecified subdivision references are to this section.) “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.” (Ibid.)
`
`The trial court determines whether “it is in the furtherance of justice to” strike an
`enhancement. (§ 1385, subd. (c)(1).) We review the trial court’s ultimate determination
`for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374–376
`(Carmony).) We review de novo questions of law or statutory interpretation regarding
`the scope of the court’s discretion. (People v. Tirado (2022) 12 Cal.5th 688, 694.)
`
`Defendant identifies two mitigating factors that he argues the trial court was
`required to consider in his case: childhood trauma (§ 1385, subd. (c)(2)(E)), and the age
`of his prior arson conviction (subd. (c)(2)(H)). With respect to the first factor, section
`1385, subdivision (c)(2)(E) requires a court to give great weight to evidence that the
`“current offense is connected to prior victimization or childhood trauma.” Evidence of a
`defendant’s prior victimization or childhood trauma may include “police reports,
`preliminary hearing transcripts, witness statements, medical records, or records or reports
`by qualified medical experts” from which the sentencing court may conclude that
`victimization or childhood trauma “substantially contributed to the defendant’s
`involvement in the commission of the offense.” (Id., subd. (c)(6)(A), (B).) Defendant
`cites only to defense counsel’s statement at the resentencing hearing that “molestation at
`the age of five” was “one of the factors” leading to the drug addiction underlying his
`crime spree. Absent support for counsel’s argument in the form of “relevant and credible
`evidence”—which is lacking in this record—the trial court lacked any basis for
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`concluding that defendant’s offenses were “connected to” prior victimization or
`childhood trauma. (Ibid.)
`
`Defendant identifies the age of his 2009 arson conviction as a second mitigating
`factor, noting that the conviction was “over five years old” (§ 1385, subd. (c)(2)(H)) both
`when he was first sentenced in 2015 and when he was resentenced in 2022. The Attorney
`General urges that the age of the conviction should be calculated based on the dates of
`defendant’s 2013 crimes, not his 2015 sentencing or 2022 resentencing for those crimes.
`In support of that interpretation, the Attorney General points to various statutes and
`sentencing guidelines from other jurisdictions that may have served as models for Senate
`Bill No. 81. We acknowledge the logic of the Attorney General’s position, but we need
`not consider any legislative history, as the plain language of the statute is clear and
`unambiguous. (People v. Canty (2004) 32 Cal.4th 1266, 1276.) Section 1385 refers
`simply to striking an enhancement if it “is based on a prior conviction that is over five
`years old” (§ 1385, subd. (c)(2)(H)). We interpret the Legislature’s choice of the present
`tense in subdivision (c)(2)(H) to mean five years between the date of the prior conviction
`and the time the court is deciding whether to strike the enhancement. Had the Legislature
`intended to direct an alternative calculation, it could have done so expressly, just as other
`state legislatures evidently have.
`
`Assuming subdivision (c)(2)(H) applies as defendant suggests, we see no abuse of
`discretion by the trial court in declining to strike the enhancement. The mitigating
`circumstance of the age of the prior conviction weighed greatly in favor of striking the
`enhancement, absent a finding that doing so would endanger public safety. (§ 1385,
`subd. (c)(2).) Relying on People v. Walker (2022) 86 Cal.App.5th 386, rev. granted
`Mar. 22, 2023, S278309 (cited only in the reply brief), defendant argues that the trial
`court was required to strike the enhancement unless it made such a finding. The Walker
`court found that the presence of at least one mitigating circumstance “erects a rebuttable
`presumption that obligates a court to dismiss the enhancement unless the court finds that
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`dismissal of that enhancement—with the resultingly shorter sentence—would endanger
`public safety.” (Id., at p. 391.) However in People v. Ortiz (2023) 87 Cal.App.5th 1087,
`rev. granted Apr. 12, 2023, S278894 (Ortiz), we declined to follow Walker and its
`“formalistic reading of the provision.” Although “the Legislature has invested the
`enumerated mitigating circumstances with great weight,” this court reasoned, “to require
`the trial court to dismiss an enhancement absent a finding that dismissal would endanger
`public safety would divest the trial court of its ultimate discretion under the statute to
`determine what is in furtherance of justice, considering all relevant factors.” (Ortiz, at
`p. 1098.) As we have noted, both Walker and Ortiz are currently under review by the
`California Supreme Court.
`
`Defendant also cites People v. Lipscomb (2022) 87 Cal.App.5th 9 and People v.
`Mendoza (2023) 88 Cal.App.5th 287, which concerned other mitigating circumstances
`identified in section 1385, namely an enhancement producing a sentence of over 20 years
`(§ 1385, subd. (c)(2)(C)). Both courts confirmed that trial courts are not required to
`strike enhancements if they find that doing so would endanger public safety. Although
`neither otherwise considered the scope of a trial court’s discretion, the Mendoza court
`noted without deciding that “if the court does not find that dismissal of the enhancement
`would endanger public safety and the defendant proves any of the remaining seven
`mitigating circumstances (§ 1385, subd. (c)(2)(A), (D)–(I)), then the proven
`circumstances weigh ‘greatly in favor of dismissing the enhancement’ (§ 1385(c)(2)), but
`the court is not required to dismiss the enhancement if the court otherwise concludes that
`dismissal is not ‘in the furtherance of justice’ (§ 1385(c)(1)).” (Mendoza, at p. 297,
`fn. 6.) We read the statute similarly.
`
`According to defendant, reading the statute in that way renders Senate Bill No. 81
`meaningless because trial courts already had discretion to strike enhancements in
`furtherance of justice before its enactment. Courts clearly had such discretion before
`Senate Bill No. 81, and the bill added specific factors that trial courts must affirmatively
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`consider in deciding whether to strike enhancements. But as we noted in Ortiz, “this does
`not preclude a trial court from determining that countervailing factors—other than the
`likelihood of physical or other serious danger to others—may nonetheless neutralize even
`the great weight of the mitigating circumstance, such that dismissal of the enhancement is
`not in furtherance of justice.” (Ortiz, supra, 87 Cal.App.5th at p. 1093.) Here the trial
`court’s oral remarks at the resentencing hearing are consistent with a determination that
`the single demonstrated mitigating factor—the age of the prior conviction—was
`outweighed by other factors, including what the trial court described as the “outrageous”
`nature of defendant’s offenses. Because the record shows the trial court properly
`considered and weighed the relevant factors, we find no abuse of discretion. (Carmony,
`supra, 33 Cal.4th at p. 378.)
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`III. DISPOSITION
`
`The judgment is affirmed.
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`6
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`____________________________________
`Grover, J.
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`WE CONCUR:
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`____________________________
`Greenwood, P. J.
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`____________________________
`Lie, J.
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`H050145
`The People v. Anderson
`
`
`
`
`
`