The opinion
Filed 12/16/24 P. v. Latten CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B335229
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA143488)
v.
WILLIAM ANGELO LATTEN, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Hector E. Gutierrez, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
William Latten, Jr., appeals the judgment entered
following a resentencing hearing pursuant to Penal Code1 section
1172.75. Appellant challenges the trial court’s refusal to strike a
prior strike conviction under the Three Strikes law (§§ 667,
subds. (b)–(i) & 1170.12, subd. (c)) and a great bodily injury
enhancement (§ 12022.7) under section 1385. Specifically,
appellant contends: (1) the trial court erred in refusing to strike
the prior strike conviction based on its finding that section 1385,
subdivision (c) does not apply to sentences under the Three
Strikes law; (2) the trial court abused its discretion in denying
appellant’s Romero2 motion to strike the prior strike conviction in
the interest of justice; and (3) remand to dismiss the prior strike
conviction and the great bodily injury enhancement is required
because both common law and section 1172.75 authorize a
sentence reduction in this case, and a lesser sentence would not
endanger public safety. We disagree and affirm.
PROCEDURAL BACKGROUND
On September 24, 2018, appellant entered an open plea of
no contest to two counts of robbery and admitted a great bodily
injury allegation (§ 12022.7, subd. (a)), a prior prison term
allegation (§ 667.5, subd. (b)), and a prior strike conviction
(§§ 667, subds. (b)–(j), 1170.12). In accordance with the indicated
sentence, the trial court sentenced appellant to a total term of 12
years in state prison, which consisted of the mid-term of three
years on the robbery charged in count 2, doubled to six years
under the Three Strikes law (§§ 667, subds. (b)–(j), 1170.12), plus
1 Undesignated statutory references are to the Penal Code.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero).
2
three years for the great bodily injury enhancement, one year for
the robbery charged in count 2, and one year for the prior prison
term enhancement (§ 667.5, subd. (b)) applied to each of the two
robbery counts.
On October 2, 2023, appellant filed a motion to strike the
now-invalid one-year prior prison term enhancements pursuant
to section 1172.75, subdivision (d). He requested full
resentencing in accordance with current sentencing laws, and
asked the court to strike the prior strike conviction and the great
bodily injury enhancement in the interest of justice under section
1385, subdivisions (a) and (c). In support of his request,
appellant submitted documentation regarding his conduct in
prison, which showed that he had obtained a high school
equivalency certificate and had completed various treatment
activities.
At the hearing on appellant’s motion, the People stipulated
to striking the two one-year prior prison term enhancements.
The trial court agreed that appellant was entitled to full
resentencing consideration, but denied appellant’s request to
dismiss the prior strike conviction and/or the great bodily injury
enhancement on the grounds that (1) a prior strike conviction
under the Three Strikes law does not qualify for dismissal as an
enhancement under section 1385, subdivision (c); (2) even under
Romero, it is not in the interest of justice to strike the strike prior
in the exercise of the court’s discretion under section 1385,
subdivision (a); and (3) reduction of appellant’s sentence by
dismissing the great bodily injury enhancement under section
1385, subdivision (c) would endanger public safety.
The court then sentenced appellant to 10 years in state
prison, as follows: three years on count 2 (second degree robbery)
3
doubled to six years under the Three Strikes law, plus three
years for the great bodily injury enhancement (§ 12022.7), and
one year on count 1 (second degree robbery).
DISCUSSION
I. The Trial Court Properly Refused to Strike the
Prior Strike Conviction Under Section 1385,
Subdivision (c)
Effective January 1, 2022, Senate Bill No. 81 added
subdivision (c) to section 1385 to provide: “Notwithstanding any
other law, the court shall dismiss an enhancement if it is in the
furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute.” (§ 1385,
subd. (c)(1).) “In exercising its discretion under this subdivision,
the court shall consider and afford great weight to evidence
offered by the defendant to prove that any of the mitigating
circumstances in subparagraphs (A) to (I) are present.” (§ 1385,
subd. (c)(2); People v. Walker (2024) 16 Cal.5th 1024, 1037
(Walker) [as amended, section 1385 now requires sentencing
courts to consider and “ ‘weigh[ ] greatly’ ” nine factors in
mitigation specified in subdivision (c)(2)(A)–(I) when determining
whether to strike enhancements in furtherance of justice].)
Section 1385, subdivision (c), however, expressly applies
only to a court’s decision whether to dismiss a sentence
enhancement in the interests of justice. It does not apply to the
increased punishment imposed due to one or more qualifying
prior strike convictions under the Three Strikes law because the
Three Strikes law is an alternative sentencing scheme for the
current offense, not a sentence enhancement. (Romero, supra, 13
Cal.4th at p. 527 [“The Three Strikes law . . . articulates an
alternative sentencing scheme for the current offense rather than
4
an enhancement”]; People v. Dowdy (Nov. 26, 2024, A168182) ___
Cal.App.5th ___ [2024 Cal.App. Lexis 768, at *9] (Dowdy)
[“section 1385, subdivision (c) applies by its terms to a sentence
‘enhancement,’ but not to a sentence derived from the alternative
sentencing scheme of the Three Strikes law”]; People v. Dain
(2024) 99 Cal.App.5th 399, 410, review granted May 29, 2024,
S283924 [“section 1385(c), by its terms, applies only when a trial
court is considering whether to dismiss ‘an enhancement,’ and a
sentence under the Three Strikes law is not an enhancement”];
People v. Olay (2023) 98 Cal.App.5th 60, 66–67 [if the Legislature
had wanted section 1385, subdivision (c) to apply to prior strikes
as well as to enhancements as legally defined, it would have said
so]; People v. Burke (2023) 89 Cal.App.5th 237, 244 (Burke) [“The
plain language of subdivision (c) of section 1385 applies only to an
‘enhancement,’ and the Three Strikes law is not an
enhancement”]; In re Milton (2019) 42 Cal.App.5th 977, 985, fn. 4
[“The three strikes law ‘articulates an alternative sentencing
scheme for the current offense rather than an enhancement’ ”]; In
re Edwards (2018) 26 Cal.App.5th 1181, 1187 [same]; People v.
Williams (2014) 227 Cal.App.4th 733, 744 [“The Three Strikes
law is a penalty provision, not an enhancement. It is not an
enhancement because it does not add an additional term of
imprisonment to the base term. Instead, it provides for an
alternate sentence (25 years to life) when it is proven that the
defendant has suffered at least two prior serious felony
convictions”].)
Appellant acknowledges that appellate courts have
unanimously held that the Three Strikes law is an alternative
sentencing scheme and not an enhancement for purposes of
section 1385, subdivision (c). He nevertheless contends these
5
cases were wrongly decided, claiming, without citation to
authority, that “a ‘strike’ prior constitutes an ‘enhancement’
under any reasonable definition of the term, because it ‘enhances’
the sentence that would normally be imposed upon the
defendant.”
Appellant further asserts “the Legislature intended to
include punishment imposed by the Three Strikes Law in
enacting section 1385, subdivision (c).” He cites none of the
legislative history of section 1385, subdivision (c) for this
proposition, but instead relies on a footnote in Burke, in which
the court “recognize[d] much of the legislative history [of Senate
Bill No. 81] is inconsistent with [the] plain language [of the
statute] and suggests that the term enhancement includes the
Three Strikes law.” (Burke, supra, 89 Cal.App.5th at p. 243,
fn. 3.) After describing those inconsistencies, the court concluded
its observations by stating, “To the extent this history reflects a
legislative intent different than that expressed in the plain
language of the bill, that is a matter for the Legislature to
correct.” (Ibid.)
In holding that section 1385, subdivision (c) has no
application to a Three Strikes sentence, the court in Burke
explained, “ ‘[W]ords used in a statute are presumed to be used in
accordance with their established legal or technical meaning.’
[Citation.] The term ‘enhancement’ has a well-established
technical meaning in California law. [Citation.] ‘A sentence
enhancement is “an additional term of imprisonment added to
the base term.” ’ [Citations.] It is equally well established that
the Three Strikes law is not an enhancement; it is an alternative
sentencing scheme for the current offense. [Citations.] We
presume the Legislature was aware of, and acquiesced in, both
6
this established judicial definition of enhancement and the
distinction between an enhancement and an alternative
sentencing scheme such as the Three Strikes law. [Citation.]
The Legislature did not otherwise define the word ‘enhancement’
in section 1385. Because the statutory language is clear and
unambiguous, we follow its plain meaning and do not consider
the legislative history cited by defendant.” (Burke, supra, 89
Cal.App.5th at p. 243.)
Every court that has addressed the issue has agreed with
Burke’s holding that section 1385, subdivision (c) does not apply
to a sentence imposed under the Three Strikes alternative
sentencing scheme. (People v. Serrano (2024) 100 Cal.App.5th
1324, 1338; Dowdy, supra, ___ Cal.App.5th ___ [2024 Cal.App.
Lexis 768, at *9] [citing cases].) We see no reason to depart from
this unanimous chorus of opinion.
II. The Trial Court Did Not Abuse Its Discretion in
Declining to Strike the Prior Strike Conviction
in the Interests of Justice
Appellant contends that even if the trial court had no
authority to strike the prior strike conviction under section 1385,
subdivision (c), remand for resentencing is required because the
trial court erred in refusing to dismiss the strike under section
1385, subdivision (a) in the interest of justice. We disagree.
In Romero, our Supreme Court held that pursuant to
section 1385, subdivision (a), a trial court may, in furtherance of
justice, strike an allegation or vacate a finding under the Three
Strikes law that the defendant has previously been convicted of a
qualifying strike offense. (Romero, supra, 13 Cal.4th at pp. 504,
529–530; People v. Leavel (2012) 203 Cal.App.4th 823, 836.) In
deciding whether to strike or vacate a prior strike conviction, the
7
court “must consider whether, 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
his 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 he had not previously been convicted
of one or more serious and/or violent felonies.” (People v.
Williams (1998) 17 Cal.4th 148, 161; People v. Vargas (2014) 59
Cal.4th 635, 641 (Vargas).)
A trial court’s denial of a Romero motion is reviewed for
abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367,
376.) This deferential standard places the burden on appellant to
clearly show that the sentencing decision was “so irrational or
arbitrary that no reasonable person could agree with it.” (Id. at
p. 377.) Thus, “ ‘[w]here the record demonstrates that the trial
court balanced the relevant facts and reached an impartial
decision in conformity with the spirit of the law, we shall affirm
the trial court’s ruling, even if we might have ruled differently in
the first instance’ [citation]. [And] [b]ecause the circumstances
must be ‘extraordinary . . . by which a career criminal can be
deemed to fall outside the spirit of the very scheme within which
he squarely falls once he commits a strike as part of a long and
continuous criminal record, the continuation of which the law
was meant to attack’ [citation], 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.” (Id. at p. 378; Vargas, supra, 59 Cal.4th at
p. 641.)
Here, the trial court expressly found that dismissal of
appellant’s prior strike conviction would not be in furtherance of
8
justice. In making its finding, the court cited appellant’s long
criminal history, starting when he was a juvenile and continuing
through to his commission of the current offenses. It found
appellant’s criminal record reflects 11 juvenile adjudications and
several adult convictions, many for violent crimes, including
assault with a deadly weapon, aggravated battery, corporal
injury on a spouse, and the strike offense⎯first degree
residential burglary. The court also noted that appellant’s
current offenses were serious and violent, and he committed the
two robberies in this case within three years of his prior strike
conviction while he was on parole for that offense.
In light of this record of unremitted recidivism and
demonstrated failure to rehabilitate, we find no abuse of
discretion in the trial court’s determination that it was not in the
interest of justice to dismiss appellant’s prior strike conviction.
III. The Trial Court Did Not Err in Refusing to
Dismiss the Great Bodily Injury Enhancement
Based on Its Finding that Dismissal of the
Great Bodily Injury Enhancement Would
Endanger Public Safety
While most of his focus on appeal is the trial court’s failure
to strike the prior strike conviction, appellant also asserts that
the trial court erred in refusing to dismiss the great bodily injury
enhancement under section 1385, subdivision (c). We disagree.
Section 1385, subdivision (c)(2) identifies nine mitigating
circumstances the trial court must consider in determining
9
whether to dismiss an enhancement in the interest of justice.3
(§ 1385, subd. (c)(2).) see People v. Sek (2022) 74 Cal.App.5th 657,
674 [Sen. Bill No. 81 “amended section 1385 to specify factors
that the trial court must consider when deciding whether to
strike enhancements . . . in the interest of justice”].) The statute
provides that “[p]roof of the presence of one or more of these
3 Section 1385, subdivision (c)(2) specifies the mitigating
circumstances in subparagraphs (A) through (I):
“(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.”
10
circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.”4 (§ 1385,
subd. (c)(2).)
“The phrase ‘great weight’ in [the first] sentence [of section
1385, subdivision (c)(2)] refers to ‘the trial court’s evaluation of
the defendant’s evidence in the first instance. [Citation.] [But]
[t]he second sentence . . . dictates that a proven mitigating
circumstance ‘weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.’ ” (Walker, supra, 16
Cal.5th at p. 1034, italics omitted & added.) As our Supreme
Court explained, “Stated simply, if the court does not conclude
that dismissal would endanger public safety, then mitigating
circumstances strongly favor dismissing the enhancement. But
ultimately, the court must determine whether dismissal is in
furtherance of justice. This means that, absent a danger to
public safety, the presence of an enumerated mitigating
circumstance will generally result in the dismissal of an
enhancement unless the sentencing court finds substantial,
credible evidence of countervailing factors that ‘may nonetheless
neutralize even the great weight of the mitigating circumstance,
such that dismissal of the enhancement is not in furtherance of
justice.’ ” (Id. at p. 1036.)
4 “ ‘Endanger public safety’ ” is defined to mean “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).)
11
Appellant contends the two mitigating factors listed in
section 1385, subdivision (c)(2)(B) and (H) require dismissal of
the great bodily injury enhancement in this case: “(B) Multiple
enhancements are alleged in a single case,” and “(H) The
enhancement is based on a prior conviction that is over five years
old.” But neither of these mitigating circumstances is present
here. As discussed above, the Three Strikes law does not
constitute a sentence enhancement; thus, only one enhancement
was alleged in appellant’s case, and that enhancement was not
based on appellant’s prior strike conviction. Moreover, the prior
conviction was not over five years old; appellant committed the
current offenses within three years of his prior strike offense
while he was on parole for that offense.
Even if any of these mitigating circumstances were proved,
however, appellant is still ineligible for a reduction in his
sentence under section 1385, subdivision (c)(2) because the trial
court expressly found dismissal of the enhancement would
endanger public safety. The trial court’s finding in this regard
was based on substantial, credible evidence of multiple
aggravating factors which supported the court’s conclusion that
dismissal of the enhancement was not in furtherance of justice.
(See Walker, supra, 16 Cal.5th at p. 1036.)
As our Supreme Court declared, in determining whether an
enhancement should be dismissed even when an enumerated
mitigating circumstance is present, “ ‘the ultimate question
before the trial court remains whether it is in the furtherance of
justice to dismiss an enhancement’ [citation] and this
‘furtherance of justice’ (§ 1385, subd. (c)(1)) inquiry requires a
trial court’s ongoing exercise of ‘discretion’ (id., subd. (c)(2)).
Thus, notwithstanding the presence of a mitigating circumstance,
12
trial courts retain their discretion to impose an enhancement
based on circumstances ‘long deemed essential to the
“furtherance of justice” inquiry.’ ” (Walker, supra, 16 Cal.5th at
p. 1033.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
RICHARDSON, J.
13