People v. Pickens CA2/3 ( 2021 )

Filed 1/29/21 P. v. Pickens CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B306414
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA465102)
v.
ALFONSO PICKENS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Robert A. Werth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stephanie C. Brenan and Nikhil Cooper,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In 2018, a jury convicted defendant and appellant Alfonso
Pickens of making criminal threats. The trial court sentenced
Pickens to 14 years in prison, which included two 5-year prior
serious felony enhancements. On his direct appeal, we affirmed
the conviction, but remanded the matter for resentencing in light
of Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393).
On this second appeal, Pickens contends the trial court abused its
discretion by refusing to strike one of the prior serious felony
enhancements. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Pickens of making criminal threats (Pen.
Code, § 422)1 against a security guard at a Los Angeles mall, and
also found true the allegation that he personally used a deadly
and dangerous weapon, a knife, in the commission of the offense
(§ 12022, subd. (b)(1)). According to evidence presented at trial,
when the unarmed security guard approached Pickens about
trespassing, he became hostile, threatened to kill her, brandished
a knife, and waved it in her face. Pickens admitted suffering
prior felony convictions for first degree burglary, vehicle theft,
attempted extortion by threat or force, and making criminal
threats.2
In a bifurcated proceeding, the court found Pickens had
suffered two prior serious felony “strike” convictions (§§ 667(a),
(b)–(i), 1170.12, subds. (a)–(d)) for a 1997 burglary conviction
1
All further unspecified statutory citations are to the Penal
Code.
2
We derive the condensed facts from our unpublished
opinion in Pickens’s direct appeal. (See People v. Pickens (Jan. 9,
2020, B290905 [nonpub. opn.]).)
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(BA151226) and a 2016 criminal threats conviction (BA448409).
It also found he had served nine prior prison terms within the
meaning of section 667.5, subdivision (b). The court struck each
of the section 667.5, subdivision (b) enhancements (§ 1385), as
well as the prior strike conviction based on the 1997 burglary
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497). It
stayed the sentence on the deadly weapon enhancement. Pickens
was sentenced to 14 years in prison, comprised of the midterm of
two years, doubled, plus two 5-year prior serious felony
enhancements pursuant to section 667, subdivision (a)(1).
When Pickens was sentenced in 2018, imposition of section
667, subdivision (a) serious felony enhancements was mandatory.
(People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Effective
January 1, 2019, Senate Bill 1393 amended sections 667 and
1385 to allow a court to exercise its discretion to strike or dismiss
the prior serious felony enhancements.3 (Stats. 2018, ch. 1013,
§§ 1–2; People v. Garcia, at p. 971.) On direct appeal, we affirmed
the judgment but vacated the sentence and remanded the matter
for the trial court to exercise its discretion to strike or dismiss the
prior serious felony enhancements in light of Senate Bill 1393.
(People v. Pickens, supra, B290905.)
At resentencing, Pickens requested that the trial court
dismiss both five-year prior serious felony enhancements. He
argued that his plea to the 2016 criminal threats conviction was
precipitated by the death of his wife and daughter. He also
3
Senate Bill 1393 applies retroactively to all cases that were
not final when it took effect. (E.g., People v. Garcia, supra, 28
Cal.App.5th at p. 973; People v. Gonzalez (2019) 39 Cal.App.5th
115, 123; People v. Dearborne (2019) 34 Cal.App.5th 250, 268.)
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argued that he lacked a violent history, was permanently bound
to a wheelchair, was in poor health and at high risk for the
coronavirus, and had taken an anger management class so he no
longer posed a threat to society. The People countered that
Pickens “had approximately 12 or 13 prior felony convictions,”
and “several stints in state prison,” and urged the court to re-
impose the two 5-year prior serious felony enhancements.
The court noted the punitive and deterrent purpose of the
sentencing enhancements, and “consider[ed] all of the factors
that ha[d] been presented,” including the risks to Pickens’s
health, the extenuating circumstances surrounding his 2016
conviction, and the violent nature of his criminal threats offense
with a deadly weapon. The court struck the prior serious felony
enhancement based on Pickens’s 1997 burglary conviction, which
was non-violent and remote in time. However, it declined to
strike the remaining prior serious felony enhancement based on
Pickens’s 2016 criminal threats conviction, explaining that “it’s
not only the same class of charge, but it is the same charge. And
it was not old.” Pickens’s sentence was reduced to nine years in
prison. He timely appealed the sentencing order.
DISCUSSION
Pickens contends the trial court abused its discretion by
declining to strike the prior serious felony enhancement without
considering the extenuating circumstances surrounding his prior
conviction, his poor health, and his rehabilitation efforts. We
disagree.
I. The trial court acted within its discretion in refusing
to strike the prior serious felony enhancement.
We review the trial court’s discretionary decision not to
strike a sentencing allegation for abuse of discretion. (People v.
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Carmony (2004) 33 Cal.4th 367, 373–374.) “In reviewing for
abuse of discretion, we are guided by two fundamental precepts.
First, ‘ “[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ [Citation.]
Second, a ‘ “decision will not be reversed merely because
reasonable people might disagree. ‘An appellate tribunal is
neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.’ ” ’ [Citation.] Taken together,
these precepts establish that a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (Id. at pp. 376–377.)
Pickens has failed to meet his burden to clearly show the
decision not to strike the prior serious felony enhancement was
irrational or arbitrary. The record reflects the trial court was
aware of its discretionary authority, heard the parties’ oral
arguments, and expressly considered the mitigating factors
Pickens presented, as well as the legislative purpose underlying
the sentencing enhancement to punish and deter habitual crime.
(See People v. Lassiter (1988) 202 Cal.App.3d 352, 356 [“purpose
of section 667 is to deter habitual criminal activity and to provide
retributive punishment”]; Cal. Rules of Court, rule 4.409
[presumption that relevant sentencing factors have been
considered, unless the record demonstrates otherwise].) The
court ultimately concluded that the violent nature of Pickens’s
offense, his use of a dangerous weapon, and the basis of the
challenged enhancement—a recent conviction for an identical
5
type of crime—did not warrant striking the prior serious felony
enhancement. We cannot say the “decision is so irrational or
arbitrary that no reasonable person could agree with it.” (People
v. Carmony, supra, 33 Cal.4th at p. 377.) The court acted well
within its sentencing discretion.
Further, none of the mitigating factors asserted by Pickens
is dispositive. In exercising discretion whether to strike the prior
serious felony enhancement, a court must consider “the nature
and circumstances of [the defendant’s] present felonies and prior
serious and/or violent felony convictions, and the particulars of
his background, character, and prospects.” (People v. Williams
(1998) 17 Cal.4th 148, 161.) Pickens cites no legal authority to
support his contention that the family emergency he suffered in
2016, his completion of a single anger management course, or his
declining health require the favorable exercise of the court’s
discretion. As the trial court noted, Pickens’s criminal threats
conviction was a dangerous crime, carried out with a deadly
weapon. In addition, his criminal history was extensive,
including nine prior prison terms and prior felony convictions for
first degree burglary, vehicle theft, attempted extortion by threat
or force, and making criminal threats. The trial court was
entitled to conclude that Pickens’s conviction for the same
dangerous offense within two years undermined any claim of
rehabilitation and posed a serious risk of recurrence. (See People
v. Taylor (2020) 43 Cal.App.5th 1102, 1113–1114 [no abuse of
discretion in declining to show leniency due to defendant’s old
“age, poor health,” and non-egregious nature of crime, where
defendant had lengthy criminal history and committed repeat
offenses that justified prior serious felony enhancement].) Thus,
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we find no abuse of discretion in the court’s refusal to strike the
prior serious felony enhancement.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
DHANIDINA, J.
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