People v. Olay
| Docket Number | A166288 |
| Decision Date | 21 December 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DERYLL TEAORIO OLAY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
CERTIFIED FOR PARTIAL PUBLICATION[*]
Trial Court: Superior Court of Napa County Nos. 22CR000828 19CR000600 Trial Judge: Hon. Mark Boessenecker
Keith Fox, By Appointment of the First District Court of Appeal under the Frist District Appellate Project, for Defendant and Appellant.
Rob Bonta, Attorney General of California; Lance E. Winters Chief Assistant Attorney General; Susan Sullivan Pithey Senior Assistant Attorney General; Scott A. Taryle, Supervising Deputy Attorney General; Nicholas J. Webster, Deputy Attorney General; for Plaintiff and Respondent.
Defendant Deryll Teaorio Olay appeals following the trial court's denial of his motion to strike a prior conviction under Penal Code section 1385.[1]Olay argues that the court erred in denying his motion pursuant to People v. Superior Court (Romero) 13 Cal.4th 497 (Romero) and in concluding that the term "enhancement" in section 1385, subdivision (c) does not include prior strike allegations. Olay further contends that his case must be remanded based on newly added section 17.2, which requires that trial courts consider alternatives to incarceration. We find no error and affirm. In the portion of our opinion certified for publication, we conclude that the term "enhancement" in section 1385, subdivision (c) does not include prior strikes.
In the unpublished portion of our opinion, we conclude that Olay's other arguments lack merit as well.
In April 2022, plaintiff and respondent the People of the State of California (People) filed an information charging Olay with one count of grand theft (§ 487, subd. (a)) and one count of vandalism (§ 594, subd. (b)(2)). The information included an allegation that Olay had suffered a prior strike conviction for attempted robbery in 2018.[2] In June 2022, Olay pled no contest to grand theft and admitted the prior strike allegation. Olay further admitted he violated his probation from another case in 2019.
Prior to sentencing, Olay filed a motion to dismiss his prior strike pursuant to Romero and Senate Bill No. 81 (2021-2022 Reg. Sess.) (SB 81). SB 81 amended section 1385 by requiring that a trial court "dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by an initiative statute." (§ 1385, subd. (c)(1).) Olay also asked the court to grant probation and allow him to participate in drug court. The People opposed the motion.
This case involved Olay's theft of a catalytic converter. In April 2022, Mark A. called the police and reported that a male wearing a face covering had knocked on his door. Mark A. was alarmed by this and did not answer the door. From his security camera, he saw the male (later identified as Olay) drive up and park across the street. Olay went between Mark A.'s two parked cars for a few minutes before getting back into his car and driving away. Olay was holding a catalytic converter. The police detained Olay the next day and found a handheld saw, bolt cutters, and a hydraulic vehicle jack in the car Olay was driving.
Olay's 2019 case involved vehicle theft and extortion. In February 2019, 76-year old Richard W. reported that his car was stolen and that he had received multiple calls from an unknown male (later identified as Olay) who was asking him for money in exchange for returning his car.[3] Olay identified himself as Deryll and told Richard W. that his friend had found Richard W.'s car and could tow it to Richard W. for $800.00. With the police listening in, Richard W. agreed and asked that his car be towed to a designated location. The police arrested Olay when he went to that location to meet Richard W.
The trial court denied Olay's motion. The court first concluded that section 1385, subdivision (c) did not apply to prior strikes because the Three Strikes law was not an enhancement but a "voluntary sentencing scheme." The court then denied the Romero motion on the grounds that Olay's prior strike was very recent and that his offenses were not "low level cases." Olay's current offense involved the theft of a catalytic converter and his prior offense involved the attempted extortion of a vulnerable victim. The court also noted that Olay had violated probation more than once in his attempted robbery case. The court denied probation in the grand theft case and sentenced Olay to a low term of 16 months, doubled to 32 months due to his prior strike. In the extortion case, the court revoked and terminated probation and sentenced Olay to a midterm of two years on the attempted extortion count (§ 564) and a midterm of two years on the vehicle theft count (Veh. Code, § 10851, subd. (a)). These two sentences were ordered to run concurrent to each other.
Olay timely appealed.
Olay contends the trial court abused its discretion by denying his Romero motion. We disagree.
"California's 'Three Strikes law' applies to a criminal defendant who is currently charged and convicted of a felony and who has previously been convicted of one or more serious or violent felonies." (In re Coley (2012) 55 Cal.4th 524, 528.) The trial court may, either on its own motion or on application of the parties, dismiss a prior felony conviction allegation under the Three Strikes law "in furtherance of justice." (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.)
"A court's discretion to strike prior felony conviction allegations in furtherance of justice is limited." (Romero, supra, 13 Cal.4th at p. 530.) The 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 law'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.)
Because the Three Strikes law "carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so . . . the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378.) Given this presumption, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances." (Ibid.) Indeed, "[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." (Ibid.)
Olay contends that the trial court abused its discretion by refusing to dismiss his prior strike because his criminal history did not involve actual violence and because his crimes were related to his drug addiction. We are unpersuaded. That the offenses may not have involved actual violence does not constitute "extraordinary circumstances" to support an abuse of discretion. As Olay points out, his prior strike conviction for attempted robbery is a serious felony. (§ 1192.7, subd. (c)(19).) And as the trial court noted, Olay committed the serious felony "very recent[ly]" and violated probation more than once in that case. The court further noted that Olay's extortion offense was also recent and involved a vulnerable victim. Under these facts, we find no abuse of discretion.
Likewise, Olay fails to show that his self-proclaimed drug addiction constitutes "extraordinary circumstances" that place him outside the spirit of the Three Strikes law. As a mitigating factor, Olay argued that his criminal history stemmed from his drug addiction and requested that the trial court grant probation and place him in drug court. But we have no reason to believe the court did not consider this factor in deciding Olay's Romero motion. "On a silent record in a post-Romero case, the presumption that a trial court ordinarily is presumed to have correctly applied the law should be applicable." (People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Indeed, the court could have found this factor inapplicable because Olay provided no treatment records or diagnoses from a medical professional to support his claim of drug addiction. That the court did not explicitly reference drug addiction when it denied the Romero motion does not mean it did not consider it or that it abused its discretion.[4]
Effective January 1, 2022, SB 81 added section 1385, subdivision (c)(1) to require that a trial court "dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by an initiative statute." (Italics added.) ...
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