Filed 5/18/21 P. v. Myers CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077525
Plaintiff and Respondent,
v. (Super. Ct. No. SCN305431)
NOEL SEAN MYERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
K. Michael Kirkman, Judge. Affirmed.
Pauline E. Villanueva, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and
Respondent.
Noel Sean Myers pled guilty to willful cruelty to an elder (Pen. Code,1
§ 368, subd. (b)(1); count 1) and two counts of assault with a deadly weapon
on a peace officer (§ 245, subd. (c); counts 3 and 5). Myers admitted that, as
to count 1, he personally inflicted great bodily injury upon an elder, aged 70
years of age or older (§ 12022.7, subd. (c)) and that he, as to count 5,
personally inflicted great bodily injury (§ 12022.7, subd. (a)). Myers also
admitted that he had a serious felony prior conviction and a strike prior
conviction. (§ 667, subds. (a)(1) & (b)-(i).)
Pursuant to a plea bargain agreement, the court sentenced Myers to
prison for 24 years four months, consisting of eight years on count 1, two
years eight months on count 3, two years eight months on count 5, six years
on the two great bodily injury enhancements, and five years on the serious
prior felony conviction enhancement.
After serving more than five years in prison, a representative from the
California Department of Corrections and Rehabilitation (CDCR) wrote to the
superior court recommending that the court recall Myers’s sentence and
resentence him under the court’s new authority per section 1170,
subdivision (d) as provided by Senate Bill No. 1393 (2017-2018 Reg. Sess.).
That subdivision provides the court discretion to strike Myers’s five-year
serious felony enhancement. (See § 1170, subd. (d).) Myers then filed a
petition to recall his sentence and strike the serious felony prior
enhancement. The superior court denied the petition.
Myers appeals, contending the superior court erred in not properly
considering his rehabilitation while in custody and improperly considering
the plea agreement as well as the court’s own beliefs about the criminal
1 Statutory references are to the Penal Code unless otherwise specified.
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justice system. Moreover, he claims the court also erred by failing to order a
supplemental probation report. We conclude Myers’s contentions are without
merit. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
In the afternoon on May 8, 2012, Myers knocked down his father (D.M.)
and broke his leg. D.M. provided officers investigating the incident with
permission to enter his residence to look for Myers.
Upon entering the residence, officers identified themselves and found
Myers laying down in a corner of the loft. When officers asked Myers his
name, he responded, “Get the fuck out.” An officer then tried to talk to Myers
about the incident, but he continued to yell obscenities and grabbed
something in his right hand. Myers raised the object and took aim toward
the officer.
The officer ran toward the entry of the residence and heard glass break
behind him as the object Myers threw hit the ground and shattered. Myers
then began throwing rocks, glass items, and other objects at the officers, who
took cover to avoid being hit. Officers continued to try to talk to Myers as he
continued to yell and throw items.
Myers then held up a machete, which consisted of a 25 inch blade with
tape around the handle. He threw the machete at one of the officers. Myers
also threw a VCR and television downstairs in the officers’ direction.
Myers walked downstairs when an officer told him to come outside to
talk. After Myers reached the bottom of the stairs, he told the officers that he
2 Because Myers pled guilty, we summarize the facts of his underlying
offenses as set forth in the probation report, which was based on an
Oceanside Police Department report as well as the preliminary hearing
transcript. The preliminary hearing transcript, however, is not part of the
record before us.
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was grabbing a weapon. He picked up what the officers believed was a
hunting rifle and held it with the barrel upward. He then continued to yell
and waved the rifle. Officers pointed their guns at Myers and ordered him to
put down the rifle. Myers refused and turned away from the officers.
The officers vacated the building and waited for additional units to
arrive. When they learned that the rifle Myers had was possibly a pellet gun,
they left the scene.
Two days later, officers responded to a radio call of an assault with a
deadly weapon. They realized that the incident in question again involved
Myers. After arriving at the residence, officers attempted to convince Myers
to leave his residence because they had a warrant for his arrest. Myers
refused.
Officers then took a containment position near the residence and the
decision was made to utilize the SWAT team. Myers began firing pellets or
BB rounds at the officers. Officers could also see Myers filling up glass
bottles with a liquid substance from a gas can. Later, a glass bottle shattered
on the ground, which contained a liquid substance smelling like gas and a rag
lying near it.
Myers again began shooting at the officers and hit one with a BB round
near his eye. The BB had to be surgically removed later. Another officer was
struck in the helmet by a BB but was not injured.
After using .40mm sponge impact rounds as well as chemical agents,
the officers were finally able to get Myers to exit his residence, and they took
him into custody.
Myers was charged with willful cruelty to an elder (§ 368, subd. (b)(1);
count 1); making a criminal threat (§ 422; count 2); three counts of assault
with a deadly weapon on a peace officer (§ 245, subd. (c); counts 3, 5, and 6);
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exhibiting a deadly weapon to a police officer to resist arrest (§ 417.8;
count 4); and possession of flammable material (§ 453, subd. (a); count 7). In
addition, as to count 1, it was alleged that Myers personally inflicted great
bodily injury on D.M. within the meaning of section 1192.7, subdivision (c)(8)
and personally inflicted great bodily injury upon D.M., a person 70 years of
age or older, within the meaning of section 12022.7, subdivision (c).
Regarding count 5, it was alleged that Myers personally inflicted great bodily
injury within the meaning of section 12022.7, subdivision (a). Finally, Myers
was alleged to have a serious felony prior (§§ 667, subd. (a)(1), 1192.7,
subd. (c)) and a strike prior (§§ 667, subds. (b)-(i), 1170.12, and 668.)
Per a plea agreement, Myers pled guilty to counts 1, 3, and 5 as well as
admitting the allegations under section 12022.7, subdivision (a) (for count 5)
and subdivision (c) (for count 1). Myers also admitted a prior serious felony
and a strike prior. The remaining counts and allegations were dismissed. As
agreed, the court sentenced Myers to prison for 24 years four months.
DISCUSSION
I
MYERS’S PETITION TO RECALL HIS SENTENCE
A. Myers’s Contentions
Myers argues the superior court abused its discretion in denying his
petition to recall his sentence and strike his five-year enhancement for his
prior serious felony. Specifically, he claims the court did not consider his
positive rehabilitation during his prison term and improperly relied on the
stipulated plea agreement and its own opinions about the nature of
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sentencing in criminal law. In addition, he insists the court erred in not
requesting a supplemental probation report that detailed his good behavior in
prison.
B. Background
After the CDCR sent its letter to the superior court requesting it recall
Myers’s sentence and resentence him according to the court’s new discretion
under Senate Bill No. 1393, Myers filed a petition requesting the same relief.
The People opposed the petition, arguing that the requested relief should be
denied based on the unique facts of the case.
During oral argument on the petition, Myers’s counsel specifically
asked the court to consider Myers’s postconviction behavior. Counsel argued:
“The final argument, if we get to the decision to actually
recall the sentence, I think what’s important for the Court
to focus on is, first and foremost, the CDCR recognized that
Mr. Myers, given the activities he’s engaged in while
incarcerated, was a good candidate for a recall and at least
a consideration of whether to resentence him. They have
an entire system set up to screen inmates to then assess
whether those inmates would be good candidates based on
their conduct, which this Court can specifically look to
under 1170(d), post conviction activities, in order to
determine whether or not it’s going to recall a sentence.”
After considering the papers and entertaining oral argument, the
superior court denied the petition. It assumed it had discretion to strike the
enhancement and explained why it did not do so. To this end, the court
stated:
“I take into account a variety of factors: the defendant’s
criminal history; the severity of the case; the violence
carried out, indeed, against a number of separate victims,
both civilian and law enforcement, as pointed out by the
prosecution on multiple occasions; a variety of weapons
utilized; serious injuries inflicted; prior threats to kill; prior
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violent history, which included four armed bank robberies,
resulting in a federal prison term.”
The court noted its belief that there should be finality in the criminal
law for the defendants as well as the victims. It questioned whether the
justice system should allow sentences to be revisited and reduced “simply
because we can.”
The court then made an additional comment about the importance of
upholding plea agreements: “I just make this additional further comment,
and that is that whether exception is taken or not, I think ultimately that the
reasoning that a stipulated agreement ought to stand is that it, quite frankly,
is a sounder position . . . . and I think contracts ought to be upheld.”
After denying the petition, the court commended Myers for doing “well
while incarcerated” and “encourage[d] him in that regard.”
C. Analysis
Senate Bill No. 1393 amended sections 667 and 1385, effective
January 1, 2019, deleting the provisions in those statutes that prohibited a
trial judge from striking a section 667 prior serious felony conviction
enhancement in furtherance of justice. (Stats. 2018, ch. 1013, §§ 1-2.) It
applies retroactively to all cases or judgments of conviction in which a five-
year term was imposed at sentencing, based on a prior serious felony
conviction, provided the judgment of conviction is not final. (People v. Stamps
(2020) 9 Cal.5th 685, 699; People v. Garcia (2018) 28 Cal.App.5th 961, 971-
972.)
Under section 1170, subdivision (d)(1), upon recommendation of the
secretary of the CDCR, a court may recall a defendant’s prison sentence and
resentence him. A court resentencing a defendant may, in determining
whether to reduce a defendant’s sentence, “consider postconviction factors,
including, but not limited to, the inmate’s disciplinary record and record of
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rehabilitation while incarcerated, evidence that reflects whether age, time
served, and diminished physical condition, if any, have reduced the inmate’s
risk for future violence, and evidence that reflects that circumstances have
changed since the inmate’s original sentencing so that the inmate’s continued
incarceration is no longer in the interest of justice.” (§ 1170, subd. (d)(1).)
“We review a court’s decision to deny a motion to strike a five-year
prior serious felony enhancement for an abuse of discretion. No error occurs
if the trial court evaluates all relevant circumstances to ensure the
punishment fits the offense and the offender.” (People v. Shaw (2020) 56
Cal.App.5th 582, 587 (Shaw).)
Turning to the record before us, we conclude no abuse of discretion
occurred. The court considered the relevant factors and concluded “given the
totality of the defendant’s criminal conduct over time, that this recidivist
statute that takes into account that someone in the past has been convicted of
a serious and/or violent felony, indeed was appropriately applied by the
Court, regardless of any stipulated agreement between the parties.” The
court emphasized Myers’s “criminal history” and “prior violent history” as
well as “the severity of the case[,]” including “the violence carried out,” and
the “serious injuries inflicted.”
Additionally, we are not troubled by the court’s reference to Myers’s
plea agreement or its comments about sentencing in general. The court made
these comments in the context of explaining its belief that the plea agreement
benefited Myers while noting that Myers, based on his criminal history and
the conduct involved in his offenses, faced a term in excess of 31 years if he
proceeded to trial. Such comments are akin to a trial court reiterating the
justifications for a defendant’s sentence when faced with a recall and
resentence petition. (See Shaw, supra, 56 Cal.App.5th at p. 588 [concluding
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no abuse of discretion].) Also, the court did not take the position that it had
no discretion to recall and resentence Myers in light of the plea agreement.
Indeed, the court assumed it had discretion and then declined to exercise it to
strike Myers’s five-year enhancement for the prior serious felony.
Myers additionally contends the court did not properly take into
account his postconviction conduct. In support of this position, he urges us to
follow People v. Yanaga (2020) 58 Cal.App.5th 619 (Yanaga). That case is not
helpful to Myers.
In Yanaga, the appellate court concluded that the trial court
prejudicially erred because it was not aware of the scope of its discretion to
consider the defendant’s postconviction rehabilitative efforts in evaluating
the defendant’s motion to strike a firearm enhancement under
section 12022.53, subdivision (h). (Yanaga, supra, 58 Cal.App.5th at pp. 622,
626-629.) However, in that case, the trial court expressly refused to consider
the defendant’s in prison rehabilitative efforts under the erroneous belief that
it could only consider the information that had been before the original
sentencing court. (Id. at pp. 622, 624.)
Here, there is no such showing in the record. To begin the hearing on
Myers’s petition, the court pointed out that the matter was before it under
section 1170, subdivision (d). That subdivision specifically refers to a
recommendation from the secretary of the CDCR for a defendant’s sentence
to be recalled and the defendant resentenced. Further, the subdivision
explicitly states that the court may consider postconviction factors. (See
§ 1170, subd. (d)(1).) In addition, Myers’s counsel told the court that it could
consider Myers’s postconviction conduct. And Myers’s petition attached the
CDCR letter as an exhibit. The court did not disagree with Myers’s counsel
that it could consider such evidence. Moreover, the court commended Myers
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for his positive rehabilitative efforts in prison. Against this backdrop, we see
no basis on the record before us to conclude the superior court did not realize
it had the discretion to consider Myers’s postconviction conduct.
Finally, Myers argues the superior court prejudicially erred by failing
to order a supplemental probation report. The parties disagree whether the
superior court was required to order a supplemental probation report under
California Rules of Court, rule 4.411 (Rule 4.411).3 Yet, even if we assume
the court was required to order a supplemental probation report, we conclude
Myers was not prejudiced under any standard.
Here, Myers claims a supplemental probation report was necessary to
provide the superior court with the updated information to aid the court in
resentencing him. However, the only additional information Myers points to
is his postconviction behavior. As we discussed ante, the court was aware of
Myers’s postconviction rehabilitative conduct through the CDCR’s letter,
Myers’s petition, and Myers’s counsel’s oral argument on the petition. Myers
makes no compelling argument that any information contained in a
supplemental probation report would have had any impact on the court’s
3 “[T]he court must refer the case to the probation officer for: [¶] (1) A
presentence investigation and report if the defendant: . . . [¶] [¶] (B) Is not
eligible for probation but a report is needed to assist the court with other
sentencing issues, including the determination of the proper amount of
restitution fine.” (Rule 4.411(a)(1)(B).)
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decision not to strike the five-year enhancement. Accordingly, we determine
that Myers has not been prejudiced by a lack of a supplemental probation
report.4
DISPOSITION
The order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.
4 To the extent Myers asserts the court had to order a supplemental
probation report because a significant period of time had passed since the
original report was prepared (see Rule 4.411(a)(2)), case law suggests that
such a supplemental report is required only if the defendant is eligible for
probation. (See People v. Johnson (1999) 70 Cal.App.4th 1429, 1432.) Myers
was not eligible for probation.
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