People v. Ledon CA4/1 ( 2023 )

Filed 5/15/23 P. v. Ledon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080234
Plaintiff and Respondent,
v. (Super. Ct. No. SCS313460)
CHRISTIAN LEDON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Michael J. Popkins, Judge. Affirmed.
Ava R. Stralla, 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, Collette C. Cavalier and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Christian Ledon escaped from a state prison fire camp and
committed two armed robberies, ultimately pleading guilty to six counts and
related enhancements. After agreeing to strike one of Ledon’s two strike
priors, the trial court sentenced him to a total of 18 years and eight months
in state prison, within the range indicated before he entered the plea.
Relying on recent legislative changes to Penal Code sections 1170 and 1385, 1
which were in effect at the time of the sentencing, Ledon contends the court
abused its discretion in arriving at the sentence. In particular, he maintains
that the court relied on several mitigating factors in deciding to strike the
strike prior, yet ignored or minimized those same factors when making its
other sentencing determinations.
The sifting, weighing, and balancing of complex sentencing factors
pertaining to the offense and the offender is not a precise mathematical
exercise. And that is why reviewing courts substantially defer to the
perspective of the sentencing judge in crafting the appropriate sentence.
While we understand that different judges could have reached different
conclusions on the same facts, Ledon’s complaints do not establish an abuse
of discretion. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Following a two-day series of events that began with his escape from a
prison fire camp, Ledon was charged with three substantive crimes—escape
from custody (§ 4530, subd. (b)) and two counts of robbery (§ 211)—and three
corresponding counts of conspiracy (§ 182, subd. (a)(1)). Based on a written
statement of factual basis, he pled guilty to all six counts pursuant to a plea
bargain. He also admitted personally using a dangerous weapon in the
1 All statutory references are to the Penal Code.
2
commission of the two robberies (§ 12022, subd. (b)(1)), as well as having been
previously convicted of two serious felonies (§ 667, subd. (a)(1)) that also
constituted strike priors (§§ 667, subds. (b)−(i), 1170.12, subds. (b)−(c)).2
The court gave an indicated sentence in a range between 15 years, 8 months
and 19 years, 8 months.
At a hearing several months later, the court granted Ledon’s Romero
motion3 and struck one of the two strike priors. It then imposed an
aggregate sentence of 18 years, 8 months, calculated as follows: (1) on count
four (robbery), the 5-year upper term doubled for the remaining strike, for a
total of 10 years; (2) on count 6 (robbery), 2 years consecutive (1/3 the 3-year
midterm doubled) plus 4 months (1/3 of 1 year) for the dangerous weapon
enhancement (§ 12022, subd. (b)(1)); (3) on count 2 (escape), 16 months
consecutive (1/3 the 2-year midterm doubled); and (4) 5 years consecutive for
the serious felony prior enhancement pursuant to section 667, subdivision
(a)(1). Pursuant to section 654, the court imposed but stayed sentences on
the three remaining conspiracy counts.
DISCUSSION
Before sentencing in this case, the Legislature made several changes to
the relevant sentencing statutes. The parties agree the trial court was aware
of these changes and sought to apply them. But Ledon contends that in
various ways the trial court misapplied the statutory revisions in arriving at
its sentencing choices. Accordingly, we begin by summarizing the changes.
2 The prior serious felony allegation was based on Ledon’s 2019
conviction on two counts of robbery in San Diego Superior Court case No.
SCD279099.
3 See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3
Prior to 2022, the Determinate Sentencing Law (DSL) gave trial courts
broad discretion to select a lower, middle, or upper term of imprisonment
from a specified triad for the particular crime. Effective January 1, 2022,
Senate Bill No. 567 (Stats. 2021, ch. 731, § 1) and Assembly Bill No. 124
(Stats. 2021, ch. 695, § 5) made changes to section 1170 that affected this
discretion. Senate Bill No. 567 made the middle term the presumptively
appropriate choice in most cases unless there are aggravating factors found
by the jury or admitted by the defendant. (§ 1170, subds. (b)(1) and (2).)
An exception allowed the court to consider a defendant’s prior conviction as
an aggravating factor if it was established by a certified court record. (Id.,
subd. (b)(3).) Assembly Bill No. 124 made the lower term presumptively
appropriate in certain specified circumstances, including when the defendant
was under the age of 26 at the time of the crime. (§ 1170, subd. (b)(6)(B);
§ 1016.7, subd. (b).) In both instances, the statute gives the court discretion
to consider aggravating factors that justify imposition of something other
than the presumptive term. (§ 1170, subd. (b)(2) and (6).)
Senate Bill No. 81 amended section 1385 to guide the exercise of the
court’s discretion in deciding whether to dismiss enhancements. Subdivision
(c)(2) lists a series of circumstances for the court to consider, including
whether: (1) multiple enhancements were alleged in a single case; (2) the
case is connected to the defendant’s mental illness; and (3) a firearm,
although used to commit the crime, was unloaded or inoperable. (§ 1385,
subd. (c)(2)(B), (D) and (I); Stats. 2021, ch. 721, § 1.) The statute further
provides that “[p]roof 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.” (§ 1385,
subd. (c)(2).)
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A. Asserted inconsistencies in evaluating various sentencing factors do not
establish that the trial court abused its discretion in selecting the upper
term on the principal count.
As previously noted, prior to sentencing the trial court granted Ledon’s
Romero motion and struck one of his two prior strikes. In support of this
ruling, the court noted: (1) Ledon’s young age, both at the time of the current
offense and when the strike offense was committed; (2) Ledon suffered from
ADHD, which contributed to the current crimes; (3) both strikes were from
the same case, in which Ledon was not the main participant; (4) the victims
were not hurt; and (5) striking the strike would allow the court to impose a
sentence that was proportional to the sentences received by the other
defendants in the case. Summarizing his conclusions, the judge found “that
the defendant is partly outside the scheme of the three strikes law. Not
completely, but partly. And as a result of that, I feel that it’s in the interest
of justice to strike the one strike . . . .”
When it moved on to sentencing, the court again acknowledged Ledon’s
youth, but nonetheless chose to impose the upper term on the principal
robbery count by finding that “despite the defendant’s age, . . . it would be
contrary to the interests of justice to impose the low term.” The judge also
determined that Ledon “does pose a danger to public safety, which is clear
from his criminal history and his behavior in this case, and therefore I don’t
think the low term is presumed under those circumstances.” As additional
aggravating factors, the court thought it appropriate to consider the stricken
strike and the fact that Ledon was armed when he committed the robbery. 4
4 The court chose to strike rather than impose a section 12022
enhancement on the principal count, justifying use of the underlying fact as
an aggravating factor in selecting the upper term. (See § 1170, subd. (b)(5).)
5
And by choosing to impose the upper term, the court implicitly rejected the
middle term as well.
Ledon does not dispute that under amended section 1170, and despite
the presumptive appropriateness of the lower term based on his youth, the
trial court retains discretion to find that applicable aggravating factors make
a middle or upper term proper. Instead, he argues “the incongruity of the
court’s sentencing choices” in striking a prior strike based on his age, yet
concluding that his age and mental health issues were insufficient to warrant
the presumptive lower or even middle term. But the implicit premise for his
argument is a level of mathematical precision that is not possible or
appropriate when evaluating the variegated landscape of human behavior.
It is fair to infer that the trial judge viewed Ledon’s age as a mitigating
factor—to a point. And it mitigated his punishment to the extent of striking
a strike so that Ledon was spared the extreme options otherwise visited upon
third strikers. That the court found other aggravating factors overcame any
additional mitigating effect of Ledon’s age and mental health issues is not so
unreasonable a conclusion that it amounts to an abuse of discretion.
B. The court properly imposed both a prior serious felony enhancement and
a dangerous weapon enhancement.
Relying on the Senate Bill No. 81 amendments to section 1385, Ledon
contends the trial court abused its discretion when it imposed punishment for
both a prior serious felony enhancement (§ 667, subd. (a)(1)) and a dangerous
weapon enhancement (§ 12022, subd. (b)(1)).5 As with his argument with
5 In his opening brief, Ledon seems to complain that the trial court used
the same fact to impose the upper term on count four, the principal count,
and the prior serious felony enhancement. As the Attorney General points
out, Ledon appears to be misconstrue the record. There were two prior strike
offenses admitted by Ledon as part of his plea. The court struck one of those
6
respect to imposition of the upper term, he acknowledges that section 1385
does not prohibit the court from imposing more than one enhancement in all
circumstances. Although proof of one or more “mitigating circumstances”
“weighs greatly in favor of dismissing” an enhancement, 6 especially if
punishment is already being imposed based on another enhancement (§ 1385,
subd. (c)(2)(B)), Ledon agrees that the court retains discretion to find an
enhancement should not be dismissed if dismissal “would endanger public
strikes, but still relied on the underlying offense as one basis for imposing the
upper term on count four. It used the other unstricken strike for its doubling
effect on the prison terms for the substantive offenses and as the basis to
impose the “nickel prior” five-year enhancement pursuant to section 667,
subdivision (a)(1). This type of dual use of facts is perfectly proper. (See, e.g.,
People v. Anderson (1995) 35 Cal.App.4th 587, 592.)
6 Section 1385, subdivision (c)(2) lists nine potential mitigating factors:
“(A) Application of the enhancement would result in a
discriminatory racial impact as described in paragraph (4)
of subdivision (a) of Section 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 Section 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
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.”
7
safety.”7 (§ 1385, subd. (c)(2).) And he expressly concedes the court here
found that he “posed a danger to society,” and that imposing the dangerous
weapon enhancement would not be “inconsistent with having the 5-year
prior.”
In effect, Ledon contends the trial court should have evaluated the
statutory factors differently, giving greater weight to the mitigating
circumstances and less to the public safety risk he represents. But as an
appellate court, that it not our role. We can reverse for an abuse of discretion
only if the decision is “irrational and arbitrary” such that no reasonable judge
could have reached a similar conclusion. (See People v. Carmony (2004) 33
Cal.4th 367, 377.) The court’s ruling in this case, adding an additional four
months to Ledon’s sentence for the dangerous weapon enhancement, does not
meet this standard.
C. The parties agree the abstract of judgment should be corrected.
When imposing sentence on the dangerous weapon enhancement, the
trial court misspoke when it said “one-third of the middle base term.” This
error was repeated in the abstract of judgment. The parties agree that the
term of imprisonment for the enhancement is simply one year; there is no
lower/middle/upper term option. (§ 12022, subd. (b)(1).) They also agree that
this is the type of inadvertent clerical error we can rectify by simply directing
that the abstract of judgment be corrected.
7 “ ‘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.” (§ 1385, subd. (c)(2).)
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DISPOSITION
The judgment is affirmed. The superior court shall modify the abstract
of judgment with respect to count 6 by deleting reference to “1/3 Mid term” as
applied to the enhancement imposed pursuant to Penal Code section 12022,
subdivision (b)(1). It shall then forward a copy of the corrected abstract of
judgment to the Department of Corrections and Rehabilitation.
DATO, Acting P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.
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