People v. Young CA2/7 ( 2021 )

Filed 1/12/21 P. v. Young CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303766
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA070637)
v.
CHRISTOPHER DUKE
YOUNG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Reversed and
remanded with directions.
Robert H. Derham, 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, Michael R. Johnson and Peggy Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
In 2009 Cindy CeCe Young1 was convicted of first degree
burglary and receiving stolen property. The trial court sentenced
Young as a third strike offender under the three strikes law (Pen.
Code, §§ 667, subds. (b)-(i), 1170.12).2 In 2014 Young petitioned
for recall of her sentence under Proposition 36, the Three Strikes
Reform Act of 2012 (§ 1170.126) (Proposition 36), seeking to
resentence her as second strike offender. In 2017 Young again
petitioned for recall of her sentence, this time under Proposition
47, the Safe Neighborhoods and Schools Act (§ 1170.18)
(Proposition 47), seeking to recall her sentence and reclassify her
felony conviction for receiving stolen property as a misdemeanor.
While her petitions were pending, Young filed a motion to strike
her two prior convictions of a serious or violent felony pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497(Romero).
The superior court granted Young’s petition pursuant to
Proposition 47 on count 3 for receiving stolen property, rendering
her Proposition 36 petition moot, but it declined to exercise its
discretion to strike her two prior convictions as to count 1 for her
first degree burglary conviction because her “lengthy criminal
history leading up to the commitment offenses does not put her
out of the spirit of the Three Strikes law.” Young contends the
superior court abused its discretion in denying her Romero
motion. We agree and reverse. We remand for the superior court
1 Young legally changed her name from Christopher Duke
Young to Cindy CeCe Young and her gender identification to
“nonbinary.” We will use Young’s preferred pronouns “she” and
“her” in this opinion.
2 All undesignated statutory references are to the Penal
Code.
2
to reconsider Young’s Romero motion in light of her background,
character, and prospects, taking into account changed
circumstances since her initial sentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Incidents, Jury Verdict, and Sentence
On June 7, 2006 Susan Margeson and Kim Dupree
returned to their home at lunch time and discovered certain
items were missing, including an iPod, camera, night-vision
scope, rings, and cash.3 The next day Georgia Case returned to
her home and found her kitchen door wide open. She called the
police, and while she was on the phone she saw Young go over
her neighbor’s fence. When she went inside her home, Case
discovered three laptops were missing. When the police arrived,
they found Young hiding in a nearby garage. The police later
recovered Margeson’s iPod and camera from Young’s car. Case
received a letter from Young saying she regretted her actions and
offering to pay for Case’s laptop.
A jury convicted Young of first degree burglary (§ 459;
count 1) and receiving stolen property (§ 496, subd. (a); count 3).
Young admitted she had suffered two prior strike convictions, a
prior serious felony conviction within the meaning of section 667,
subdivision (a)(1), and six prior prison terms within the meaning
of section 667.5, subdivision (b). Young filed a Romero motion to
strike her prior strike convictions, but the court denied the
3 The facts are taken from this court’s opinion affirming the
judgment. (People v. Young (June 30, 2011, B222220) [nonpub.
opn.].)
3
motion based on Young’s history of criminal conduct and the
seriousness of the present convictions. The court sentenced
Young to an aggregate term of 74 years to life in prison. On
count 1 for burglary, the court sentenced Young to a third strike
sentence of 25 years to life, plus 10 years for the two prior serious
felony convictions, and four years for four of the prior prison
terms. On count 3 for receiving stolen property, the court
sentenced Young to a consecutive sentence of 25 years to life plus
10 years for the two prior serious felony convictions. On appeal
we struck the two 5-year sentence enhancements on count 3 as
unauthorized and otherwise affirmed. (People v. Young (June 30,
2011, B222220) [nonpub. opn.].)
B. Young’s Postconviction Petitions To Recall Sentence
On July 3, 2014 Young filed a petition for recall of sentence
under Proposition 36.4 On November 17, 2015 the superior court
denied the petition as to count 1 because the offense was a
serious or violent felony, and it issued an order to show cause
why relief should not be granted as to count 3. The People
4 Prior to approval of Proposition 36, the three strikes law
provided that defendants who committed a felony and had two or
more prior convictions for serious or violent felonies were to be
sentenced to an indeterminate term of life imprisonment with a
minimum term of at least 25 years. (§ 1170.12, former subds. (b),
(c)(2)(A); People v. Perez (2018) 4 Cal.5th 1055, 1061-1062; People
v. Estrada (2017) 3 Cal.5th 661, 666-667.) “Following enactment
of Proposition 36, defendants are now subject to a lesser sentence
when they have two or more prior strikes and are convicted of a
felony that is neither serious nor violent, unless an exception
applies.” (Estrada, at p. 667.)
4
opposed the petition, arguing Young posed an unreasonable risk
of danger to public safety.
While her Proposition 36 petition was pending, Young filed
a petition to recall her sentence pursuant to Proposition 47
(§ 1170.18).5 On November 29, 2017 the court issued an order to
show cause why relief should not be granted as to count 3. The
People opposed the petition, arguing the value of the stolen
property was $7,500, exceeding the $950 maximum amount for
an offense to be eligible for reclassification as a misdemeanor. In
her reply, Young argued the value was less than $950.
C. Young’s Romero Motion
In anticipation of her sentence being recalled under
Proposition 47, Young filed a Romero motion to strike one or both
of her prior strikes as to count 1.6 Young argued she committed
the underlying offenses 13 years earlier and the two strikes (also
burglaries) were even more remote, committed 19 and 23 years
earlier. Young was 22 and 26 years old when she committed the
prior strikes, at which time she was “still in a developmental
phase marked by ‘immaturity, irresponsibility, impetuousness
and recklessness.’” Further, none of the offenses involved
violence, physical injuries, or weapons, although a person was
home during the 2000 burglary.
5 The appellate record does not include Young’s Proposition
47 petition.
6 Young incorporated into her motion the arguments she
made in her reply brief and exhibits filed in support of her
Proposition 36 petition.
5
Young detailed “significant factors during [her] early
development that appear to have influenced her criminal
history,” including being abandoned by her father, her mother’s
alcohol abuse that led to her being adopted, and the death of her
foster father. Young suffered from gender dysphoria, which she
believed contributed to her drug and alcohol use beginning when
she was nine years old.
Young also highlighted her extensive participation in
rehabilitation activities during her 10 years in prison. She took
numerous college courses, obtained vocational training in office
services, and developed job skills, including as a medical
disability worker. Young participated in programs to help her
gain insight and maturity, including Lifer’s Group, Breaking
Barriers, and Project S.P.E.A.K. She enrolled in Narcotics
Anonymous to address substance abuse problems that
contributed to her past criminality. Young also became involved
with the community, donating money to Shriners Hospitals for
Children and volunteering with the Victims Awareness
Offender’s Program’s National Crime Victims’ Week at Mule
Creek State Prison, for which she received the program’s 2019
Restorative Justice Achievement Award.
Young had the opportunity while in prison to address her
gender dysphoria. She received hormonal treatment and was
approved for sex reassignment surgery. As noted, she legally
changed her name and gender identity. According to Young,
these steps have allowed her to “cultivate a greater sense of self-
worth and resolve past issues borne out of her gender dysphoria,
including her substance abuse problem.”
During her incarceration, Young was never disciplined for
drug or alcohol use and never tested positive for drugs or alcohol.
6
She was never involved with a prison gang. In addition, Young
was determined to be eligible for entry into a residential
treatment program focusing on substance use disorders that
provided transitional housing and job training. She located
Alcoholics Anonymous meetings she would attend if released and
planned to pursue her bachelor’s degree. Young also noted she
was less likely to reoffend given her current age (52).
Young acknowledged she received three serious rule
violations and one administrative rule violation during her 10
years in prison. In 2010 Young received a serious rule violation
for “willfully delaying any peace officer in the performance of
duty by refusing to accept assigned housing” based on her refusal
to accept a housing assignment. (Capitalization omitted.) Young
explained she did not accept the housing because she believed her
assigned cellmate wanted the assignment because of Young’s
sexual orientation.7 In 2011 Young was found guilty of a serious
rule violation for “refusal to follow direct observation therapy
procedures” in connection with taking her medication.
(Capitalization omitted.) In 2015 she was found guilty of an
7 Young was cleared for housing in a double cell, and she was
required to house with a “compatible” inmate. Young was
ordered to share a cell with an inmate determined to be
compatible. Young refused, stating, “We can’t cell together.”
Young was not receptive to counseling and refused to comply with
the housing order. Young explained at the hearing on the
violation, “The [o]fficer was under the impression I was black. I
am homosexual, and the only reason the inmate wanted to cell
with me was for that reason. On my ‘J’ number, I was single
celled at R. J. Donovan.” The rules violation report interpreted
Young’s statement as an admission of her intent to be housed in a
single cell and that she committed the violation.
7
administrative offense of “disobeying written orders” in
connection with the use of the library law clerk’s computer to
compose a document. (Capitalization and boldface omitted.)
More significantly, in 2014 Young was found guilty of a serious
rule violation for “fighting resulting in the [use of force] (OC
grenade/OC pepper spray).”8 (Some capitalization omitted.)
The People opposed Young’s Romero motion, arguing her
“ongoing history of criminal conduct has only been interrupted by
periods of incarceration,” and her “brazen conduct, targeting
occupied homes . . . during daylight hours, demonstrates that she
poses a danger to society.” The People also relied on Young’s
disciplinary record while incarcerated to argue she showed “a
continued pattern of violence and disobedience.”
D. The Superior Court’s Rulings
On July 22, 2019 the superior court held a hearing on
Young’s petitions under Propositions 36 and 47. The People
conceded Young met the criteria for reclassification of her
conviction on count 3 of receiving stolen property pursuant to
Proposition 47, and the court made a finding of eligibility.
However, the court found Young ineligible for relief on count 1 for
8 Young and her cellmate were engaged in a fight and were
observed striking each other in the face and upper torso. At the
hearing, Young stated she did not hear the orders to get down.
Young sustained an abrasion to her forehead, a scratch on the
neck area, and redness from the pepper spray. Her cellmate
sustained exposure to the pepper spray. Young accepted
responsibility for the incident, and Young and her cellmate
signed a “Peaceful Coexistence Agreement.” (Some capitalization
omitted.) This was Young’s only fight while in prison.
8
residential burglary under either proposition. The court set
Young’s case for a combined suitability hearing as to count 3 with
respect to both propositions.
The court held the suitability hearing on October 29, 2019,
and it also addressed Young’s Romero motion. The court stated it
was inclined to grant the Proposition 47 petition, which would
moot the Proposition 36 petition. But the court stated as to
Young’s Romero motion that it could address it “in short order.”
The court explained, “I would deny the Romero. I don’t think
there’s any basis. [She] certainly earned a third strike sentence
on [her] record. And I’m not inclined—it’s been my practice all
along, I’m not inclined to unwind the sentence as to count one.
[She] earned that, it was properly imposed, it went up to the
Court of Appeal, they found it was properly imposed.” The court
added, “I read your papers, I’ve read your pitch. I’m not inclined
to strike the one or both of the strikes as to count one, I’m not
inclined to remove the two [5-]year priors. Basically I’m not
inclined to make any change, although I have discretion to do so,
I also have discretion to not . . . make any changes as to the
sentence in count one. I would leave that.” Young’s attorney
submitted on her papers.
In its 13-page written ruling, the court addressed the
statutory factors under Proposition 47 relating to dangerousness,
considering Young’s criminal history, disciplinary history,
rehabilitative programming, age, and postrelease plans. The
court observed Young’s convictions were becoming remote in
time, and there was no evidence any victim had been injured
9
during the course of Young’s criminal conduct.9 The court noted,
however, that in one burglary the home was inhabited at the time
of the offense, and during a burglary Young committed as a
juvenile, she was armed with a knife. The court concluded that
“taken as a whole,” Young’s criminal convictions “do[] not support
a finding of current dangerousness for purposes of Proposition
47.”
As to Young’s serious rule violations while in prison, the
court noted that only the 2014 incident involved violence, and
Young’s “ability to stay mostly discipline free during her ten
years in state prison is some evidence of her ability to follow the
9 Young was first referred to probation when she was 14
years old for taking a vehicle without the owner’s consent,
followed by a sustained juvenile petition two years later for
displaying a weapon (a knife). As an adult, Young suffered
convictions of petty theft (1992); grand theft (1993); misdemeanor
convictions of being under the influence of a controlled substance,
presenting false identification to a peace officer, and resisting a
public officer (1993); receiving stolen property (1994); and second
degree burglary of a pickup truck (1995). Young was sentenced
to 16 months in state prison for the second degree burglary.
Young committed her first strike offense (for first degree
burglary) in 1996, for which she was sentenced to three years in
state prison. She was paroled in 1998, then was again convicted
of first degree burglary in 2000, during which offense the victim
awoke to find Young in his apartment rummaging through his
clothing. Young was sentenced to two years in state prison. In
2002 Young was sentenced to 32 months in state prison for
possession of a controlled substance, and in 2005 to 30 days in
county jail for presenting false identification to a peace officer.
Young committed the commitment offenses in 2006, while she
was on parole.
10
rules.” Further, despite having been previously incarcerated for
a drug offense, Young never possessed or tested positive for a
controlled substance while in prison. The court also summarized
Young’s “extensive self-help and education upgrades while
incarcerated,” including taking college courses and receiving
vocational training. The court acknowledged Young’s current age
(52) and her postrelease plans, including organizational and
family support, which also supported granting relief.
The court concluded, although Young’s “past criminal
conduct is lengthy, her lack of a ‘super strike,’ along with her
minimal disciplinary history since incarceration and her
eagerness to improve herself through self-help, vocational
training, and education are all evidence of her suitability for
relief pursuant to Proposition 47.” The court noted that
“Proposition 47’s standard is very narrow and criminal past
cannot support a finding of current dangerousness without
evidence establishing a rational nexus to an unreasonable risk
that [Young’s] will commit a ‘super strike.’” The court found that
evidence was not present here “[i]n light of [Young’s] performance
in prison, age, participation in rehabilitative, educational and
vocational programming, and release plans . . . .”
After finding Young eligible for relief under Proposition 47,
the court denied Young’s Romero motion, explaining, “The People
argue [Young’s] criminal history ‘interrupted only by periods of
incarceration’ does not fall within the spirit of . . . Romero or
section 1385. . . . The court agrees. [Young’s] lengthy criminal
history leading up to the commitment offenses does not put her
out of the spirit of the Three Strikes law. The court declines to
strike the two prior strikes pursuant to Romero.” The court
11
added, “For the same reason, the court will not strike the
remaining enhancements alleged as to Count 1.”
The court granted the Proposition 47 petition and
dismissed the Proposition 36 petition as moot. At the January 6,
2020 resentencing hearing, the court sentenced Young to 25 years
to life on count 1 under the three strikes law plus an additional
10 years pursuant to section 667, subdivision (a)(1). On count 3
the court sentenced Young to 364 days in county jail to run
concurrently with her sentence on count 1, with credit for time
served. The court struck the four 1-year prison prior
enhancements.
Young timely appealed.
DISCUSSION
A. Governing Law and Standard of Review
1. Proposition 47
“Approved by voters in 2014, Proposition 47 . . . reduces
many common theft- and drug-related offenses from felonies to
misdemeanors for offenders who do not have prior convictions for
specified violent or serious offenses. The measure also permits
eligible defendants who were serving felony sentences as of
Proposition 47’s effective date to obtain the benefit of these
changes by petitioning for resentencing.” (People v. DeHoyos
(2018) 4 Cal.5th 594, 597; accord, People v. Page (2017) 3 Cal.5th
1175, 1179.)
If the superior court determines the petitioner meets the
criteria for reclassification of his or her conviction as a
misdemeanor, the court “must recall the felony sentence and
resentence the petitioner based on the new classification of the
12
offense as a misdemeanor, ‘unless the court, in its discretion,
determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’” (People v. Valencia
(2017) 3 Cal.5th 347, 355 (Valencia); see § 1170.18, subd. (b).) An
unreasonable risk of danger to public safety is defined in section
1170.18, subdivision (c), as “an unreasonable risk that the
petitioner will commit a new violent felony” listed in section 667,
subdivision (e)(2)(C)(iv), commonly referred to as “super strikes,”
including any homicide or attempted homicide offense,
solicitation to commit murder, assault with a machine gun on a
peace officer or firefighter, specified sex offenses, and any serious
or violent felony offense punishable by life imprisonment or
death.
In exercising its discretion to determine whether a
petitioner presents an unreasonable risk of danger, the
resentencing court may consider “(1) the petitioner’s ‘criminal
conviction history, including the type of crimes committed, the
extent of injury to victims, the length of prior prison
commitments, and the remoteness of the crimes’; (2) his or her
‘disciplinary record and record of rehabilitation while
incarcerated’; and (3) ‘[a]ny other evidence’ the court deems
relevant. (§ 1170.18, subd. (b)(1)-(3).)” (Valencia, supra,
3 Cal.5th at p. 355.) Courts considering whether to resentence
petitioners under Proposition 47 may consider evidence outside
the record of conviction and, if necessary, make factual findings.
(See People v. Sledge (2017) 7 Cal.App.5th 1089, 1095 [“‘[a]n
evidentiary hearing is required if . . . there is a reasonable
likelihood that the petitioner may be entitled to relief and the
petitioner’s entitlement to relief depends on the resolution of an
issue of fact’”].)
13
2. The full resentencing rule
When a sentence is recalled pursuant to Proposition 47,
“the resentencing court has jurisdiction to modify every aspect of
the sentence, and not just the portion subjected to the recall.”
(People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks) [at
resentencing following grant of Proposition 47 petition, trial court
must reconsider sentence in light of changes in the law, including
whether prison prior enhancement is still valid].) At
resentencing, “it is well settled that . . . the defendant is entitled
to ‘all the normal rights and procedures available at his original
sentencing’ [citations], including consideration of any pertinent
circumstances which have arisen since the prior sentence was
imposed [citation].” (Dix v. Superior Court (1991) 53 Cal.3d 442,
460.) “‘[A] full resentencing as to all counts is appropriate, so the
trial court can exercise its sentencing discretion in light of the
changed circumstances.’” (Buycks, at p. 893; accord, People v.
Navarro (2007) 40 Cal.4th 668, 681 [where appellate court
reversed sentence on greater offense, trial court on remand was
required to exercise sentencing discretion on all counts in light of
changed circumstances]; see People v. McDowell (2016)
2 Cal.App.5th 978, 981 [“If the trial court grants a section
1170.18 petition, it then has jurisdiction to resentence the
defendant, and must do so under the generally applicable
sentencing procedures found in section 1170 et seq.”]; People v.
Rouse (2016) 245 Cal.App.4th 292, 299 [“[A] resentencing hearing
on a petition under section 1170.18, subdivision (a), under the
circumstances of this case, is akin to a plenary sentencing
hearing.”]; People v. Garner (2016) 244 Cal.App.4th 1113, 1118
[trial court must exercise its sentencing discretion as to all
14
aspects of the sentence following grant of Proposition 36 petition];
People v. Burbine (2003) 106 Cal.App.4th 1250, 1258, 1257 [on
remand for resentencing following partially successful appeal, the
“‘trial court is entitled to consider the entire sentencing scheme’”
given the “‘interlocking nature’” and “inherently integrated
nature” of felony sentencing for a multiple-count conviction].)
This includes the court’s ability to consider a request for
discretionary relief under Romero based on the circumstances at
the time of resentencing. (People v. Hubbard (2018)
27 Cal.App.5th 9, 11 [following a recall of a sentence pursuant to
Proposition 36, trial court has jurisdiction to consider a request
for discretionary relief under § 1385 and Romero].)
3. Request for discretionary relief under section 1385
and Romero
A trial court has discretion under section 1385, subdivision
(a), to dismiss a strike conviction allegation for purposes of
sentencing in furtherance of justice. (People v. Williams (1998)
17 Cal.4th 148, 158; Romero, supra, 13 Cal.4th at p. 530.) In
determining whether to strike a prior conviction, the trial court
“must consider whether, in light of the nature and circumstances
of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the [three
strikes] scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (Williams, at p. 161;
accord, People v. Johnson (2015) 61 Cal.4th 674, 689; People v.
Solis (2015) 232 Cal.App.4th 1108, 1124.)
15
“[A] court’s failure to dismiss or strike a prior conviction
allegation is subject to review under the deferential abuse of
discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367,
374 (Carmony); accord, In re Large (2007) 41 Cal.4th 538, 550
[petitioner failed to rebut “‘strong presumption’ [citation] that the
trial judge properly exercised his discretion in refusing to strike a
prior conviction allegation”].) A trial court does not abuse its
discretion unless its ruling “is so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra,
33 Cal.4th at p. 377; accord, People v. Leavel (2012)
203 Cal.App.4th 823, 830.) The party challenging the sentence
has the burden to show the sentence was irrational or arbitrary.
(Carmony, at p. 376; Leavel, at p. 830.) “‘“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.”’ [Citations.] . . . ‘“‘An appellate tribunal is
neither authorized nor warranted in substituting its judgment
for the judgment of the trial judge.’”’” (Carmony, at pp. 376-377.)
Because the three strikes “law creates a strong
presumption that any sentence that conforms to [the law’s]
sentencing norms is both rational and proper,” there are very
limited circumstances under which the appellate court will find
an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.)
These circumstances include where the court is unaware of its
discretion to strike a prior conviction, it considers impermissible
factors, or, under the circumstances, imposition of a three strikes
sentence would be irrational or arbitrary. (Ibid.; People v. Leavel,
supra, 203 Cal.App.4th at p. 837.) Only under extraordinary
circumstances does the court’s failure to strike a prior conviction
16
constitute an abuse of discretion. (Carmony, at p. 378; People v.
Finney (2012) 204 Cal.App.4th 1034, 1040 [“Once a career
criminal commits the requisite number of strikes, the
circumstance must be ‘extraordinary’ before he can be deemed to
fall outside the spirit of the three strikes law.”].)
B. The Superior Court Abused Its Discretion in Denying
Young’s Romero Motion
Young contends the trial court abused its discretion in
denying her Romero motion because it found with respect to her
Proposition 47 petition she “does not pose a current risk of danger
to public safety if released,” but it still found she was outside the
spirit of the three strikes law based only on her criminal record.
The People contend the court properly considered Young’s
rehabilitation record and prospects, but her criminal history and
disciplinary record supported denial of the motion. Young’s
contention has merit.
The superior court in its written ruling made clear it was
aware it had “the authority to reconsider [Young’s] entire
sentence,” citing to Buycks, supra, 5 Cal.5th 857 and People v.
Hubbard, supra, 27 Cal.App.5th 9. Further, in its written ruling
the court detailed Young’s record of rehabilitative programming
in prison, her age, and postrelease plans, although this discussion
was in the section discussing her Proposition 47 petition.
Generally a court “is presumed to have considered all of the
relevant factors in the absence of an affirmative record to the
contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310;
accord, People v. Galvez (2011) 195 Cal.App.4th 1253, 1264
[“‘[A]bsent a showing to the contrary, the trial court is presumed
17
to have known and followed the applicable law and to have
properly exercised its discretion.’”].)
But here the record affirmatively shows the superior court
denied Young’s Romero motion based on its single finding that
Young’s “lengthy criminal history leading up to the commitment
offenses does not put her out of the spirit of the Three Strikes
law.” The court similarly stated at the suitability hearing in
expressing its inclination to deny the Romero motion that Young
“certainly earned a third strike sentence on [her] record,” which
on appeal was found to be “properly imposed.” We do not agree
with Young that the superior court’s finding that Young did not
pose an unreasonable risk of danger to public safety under
Proposition 47 necessarily meant the court should have granted
her Romero motion, because section 1170.18 defines
“unreasonable risk of danger to public safety” narrowly as an
unreasonable risk the defendant will commit one of the specified
super strikes. (See Valencia, supra, 3 Cal.5th at pp. 351-352
[holding the narrower definition of “unreasonable risk of danger
to public safety” under Proposition 47 does not apply to
proceedings under Proposition 36].) But here, the superior
court’s review of Young’s rehabilitative record and prospects all
favored Young. Although Young had multiple rule violations
while in custody, the court noted her last serious rule violation
was in 2014 and Young’s “ability to stay mostly discipline free
during her 10 years in state prison is some evidence of her ability
to follow the rules.” Similarly, the court found Young’s
“eagerness to improve herself through self-help, vocational
training, and education are all evidence of her suitability for
relief pursuant to Proposition 47.” The court found that Young’s
18
current age and postrelease plans, including organizational and
family support, also weighed in favor of granting relief.
It may well be that the superior court concluded these
positive factors were outweighed by the court’s conclusion
Young’s prior criminal record placed her within the spirit of the
three strikes law. But the incongruity of the court’s favorable
factual findings on issues relating to Young’s background,
character, and prospects with its denial of the Romero motion
with reference only to Young’s then-19- and 23-year-old strike
convictions and our affirmance on direct appeal of the original
sentence suggest the court did not reconsider the Romero motion
“‘in light of the changed circumstances.’” (Buycks, supra,
5 Cal.5th at p. 893; accord, People v. Navarro, supra, 40 Cal.4th
at p. 681.)
We are also troubled by the court’s statement at the
hearing that “it’s been my practice all along, I’m not inclined to
unwind the sentence as to count one,” suggesting it was not the
court’s practice to reduce a defendant’s sentence further following
a successful Proposition 47 or other petition for resentencing. We
recognize Young was initially sentenced to 74 years to life, and as
a result of her appeal, changes in the law, and the granting of
Young’s Proposition 47 petition, her sentence was reduced to 35
years to life, but the court was still required to exercise its
discretion in deciding Young’s Romero motion based on the
circumstances in effect at the time of resentencing. We remand
for this purpose.
19
DISPOSITION
The December 9, 2019 order denying Young’s motion to
dismiss her prior strike convictions is reversed. The matter is
remanded to the superior court to allow the court to exercise its
discretion whether to strike one or both prior strike convictions
after consideration of Young’s background, character, and
prospects, including evidence of changed circumstances since her
original sentencing. On remand the court should also reconsider
whether to strike the two 5-year enhancements under section
667, subdivision (a)(1).
FEUER, J.
We concur:
PERLUSS, P. J.
DILLON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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