Filed 5/17/21 P. v. Sandefur CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A161561
v.
JASON I. SANDEFUR, (City & County of San Francisco
Super. Ct. No. SCN218825)
Defendant and Appellant.
In a prior appeal, we affirmed Jason I. Sandefur’s convictions for
assault with a deadly weapon and resisting arrest, along with a true finding
of an allegation under the Three Strikes law, but we remanded to allow the
trial court to consider striking a five-year prior serious felony enhancement
pursuant to its new authority under Senate Bill 1393 (Stats. 2018, ch. 1013).
The trial court held a hearing on remand but declined to strike the prior.
Appellant filed a notice of appeal, and his court-appointed appellate counsel
has filed a brief raising no issues, but seeking our independent review of the
record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders
v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and
affirm.
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I. BACKGROUND
We take the facts of the crime and the procedural history up until the
point of the original sentencing from our unpublished appellate decision in
People v. Sandefur (Jan. 11, 2019) A151720, A152650 [nonpub. opn.]:
“On October 25, 2010, appellant returned to the Prita Hotel in San
Francisco, where he had been staying, and was told to leave by manager
Eduardo Ugarte. He returned the next day when Ugarte was carrying out
equipment for recycling, pulled out a knife, and invited Ugarte to fight.
Appellant swung the knife at face level and Ugarte used a vacuum cleaner he
was carrying to ward appellant off. Ugarte went inside and told his son to
call the police. At about the same time, appellant stabbed Sergio Rodas as
Rodas walked along Mission Street, causing a superficial neck wound and a
deep wound to the back left of his neck. Appellant fled from and struggled
with the police officers who arrested him. He appeared to be under the
influence of drugs.
“Appellant was charged with attempted murder, two counts of assault
with a deadly weapon, one with an allegation of great bodily injury, and
resisting arrest. (Pen. Code, §§ 664/187, 245, subd. (a)(1), 12022.7, subd. (a),
148, subd. (a)(1).)[1] It was also alleged that appellant had been previously
convicted of assault with a deadly weapon and making criminal threats
within the meaning of the Three Strikes law and the five-year serious felony
enhancement, and had served a prior prison term for those crimes.
(§§ 1170.12, 667, subd. (a), 667.5, subd. (b).)
“While he was in custody pending trial on the charges described above,
the charges were consolidated with two counts each of solicitation of murder
and dissuading a witness. (§§ 653f, subd. (b), 136.1, subd. (b)(1).) These
1 Further references are to the Penal Code.
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charges, which involved a victim of and witness to the first set of charges,
were ultimately severed for trial.
“After the denial of numerous motions for self-representation under
Faretta v. California (1975) 422 U.S. 806 (Faretta) and new appointed counsel
under People v. Marsden (1970) 2 Cal.3d 118[], the case proceeded to a jury
trial. Appellant presented expert witnesses to support his theory that he was
addicted to drugs and his conduct was the product of drug-induced psychosis.
He was acquitted of attempted murder and the lesser included offense of
attempted voluntary manslaughter and convicted of the two counts of assault
with a deadly weapon (one with a great bodily injury enhancement) and the
one count of resisting arrest. The court found appellant had suffered two
prior convictions for serious felonies and had served a prior prison term as
alleged.[2]
“In a separate hearing, the trial court granted a defense motion to
strike one of the priors for purposes of the Three Strikes law under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). It declined to strike
the other prior. The court initially sentenced appellant to prison for an
aggregate term of 16 years on April 28, 2017. The court ordered appellant to
pay Ugarte $2,400 in direct victim restitution following a hearing.
“With respect to the pending charges, appellant pled guilty to one count
of solicitation of murder pursuant to an agreement he would be sentenced to
six years in prison. Ultimately, the court resentenced appellant to the same
aggregate 16-year term. . . .” The aggregate sentence included a three-year
2 Sentence was not ultimately imposed on the prior prison term
enhancements, so we do not concern ourselves with Senate Bill 136 (Stats.
2019, ch. 590, § 1), which made such enhancements inapplicable to most
offenses effective January 1, 2020. (§ 667.5, subd. (b).)
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concurrent term for the solicitation of murder count with the agreement of
the parties.
We originally filed an opinion affirming the judgment in September
2018, rejecting arguments that the court should have granted appellant’s
Faretta motion, should have stricken both of his prior “strike” convictions
rather than only one of them, and should not have awarded the full amount
of victim restitution requested. At the time, the court did not have the power
to strike five-year prior serious felony enhancements. (People v. Shaw (2020)
56 Cal.App.5th 582, 586 (Shaw).) In December 2018, the Supreme Court
granted appellant’s petition for review and transferred the case back to this
Court in light of Senate Bill 1393, which amended section 667 and 1385 and
gave courts the discretion to strike prior serious felony enhancements “in
furtherance of justice” and was to become effective January 1, 2019. (Sen.
Bill 1393 (2017–2018 Reg. Sess.) §§ 667, subd. (b)(1), 1385, subd. (b).) We
issued an opinion on January 11, 2019, again affirming the judgment, but
remanding the case to allow the court to consider exercising its discretion
under Senate Bill 1393.
The trial court held a hearing to consider a defense motion to strike the
prior serious felony enhancement under section 667, subdivision (a). Several
of appellant’s friends and his father spoke as character witnesses. Victim
Sergio Rodas was present and gave a statement about how much the crime
had affected him, but he stated it was not up to him to dictate what sentence
the court should impose. Appellant gave a statement in which he apologized
to Rodas. The Court recessed to review appellant’s prison file, which
contained several write-ups but also reflected appellant’s participation in
educational and other programs. The court denied the motion to strike the
five-year prior serious felony enhancement.
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II. DISCUSSION
As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we
affirmatively note that appointed counsel has filed a Wende/Anders brief
raising no issues, that appellant has been advised of his right to file a
supplemental brief, and that appellant did not file such a brief. We have
independently reviewed the entire record for potential error and find none.
We review a court’s decision to deny a motion to strike a five-year prior
serious felony enhancement for abuse of discretion. (Shaw, supra, 56
Cal.App.5th at p. 587.) “No error occurs if the trial court evaluates all the
relevant circumstances to ensure that the punishment fits the offense and the
offender.” (Ibid.) Here, the trial court carefully reviewed the facts of this
case, heard from several witnesses who vouched for appellant’s character,
listened to the statement of appellant and one of the victims, and read
appellant’s extensive prison file. Despite the violent nature of the crimes, the
court had previously granted a Romero motion and stricken one prior
conviction for the purpose of the Three Strikes Law, meaning appellant was
not sentenced to the term of 25 years to life for which he was otherwise
eligible. The court observed that appellant had received a concurrent term
for the solicitation of murder count. It was not an abuse of discretion to
conclude it would not be “in furtherance of justice” to strike the five-year
enhancement.
We are satisfied that appellant’s appointed attorney has fully complied
with the responsibilities of appellate counsel and that no arguable issues
exist. (Smith v. Robbins (2000) 528 U.S. 259, 283.)
III. DISPOSITION
The judgment is affirmed.
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NEEDHAM, Acting P.J.
We concur.
BURNS, J.
RODRIGUEZ, J. *
People v. Sandefur / A161561
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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