Filed 8/11/21 P. v. Jansen CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sutter)
----
THE PEOPLE, C091973
Plaintiff and Respondent, (Super. Ct. No. CRF192208)
v.
MICHAEL EDWARD JANSEN,
Defendant and Appellant.
After a jury found defendant Michael Edward Jansen guilty of multiple crimes,
including second degree burglary, the trial court sentenced him to 11 years in state prison.
On appeal, defendant contends the trial court committed sentencing error by: (1) failing
to recognize its discretion to strike a two-year enhancement; (2) refusing to strike a prior
serious felony conviction for purposes of the three strikes law and a five-year
enhancement; and (3) imposing costs without first determining defendant’s ability to pay.
We affirm the judgment.
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FACTS AND HISTORY OF THE PROCEEDINGS
We need not discuss the underlying facts of defendant’s crimes as they are not
relevant to our resolution of this appeal.
A September 2019 information alleged defendant committed second degree
burglary (Pen. Code, § 459; statutory section references that follow are to the Penal
Code); grand theft of a firearm (§ 487, subd. (d)(2)); the crime of being a felon in
possession of a firearm (§ 29800, subd. (a)(1)); the crime of being a felon in possession
of ammunition (§ 30305, subd. (a)(1)); attempted taking or driving a vehicle (§ 664; Veh.
Code, § 10851, subd. (a)); the crime of failure to appear after release upon his own
recognizance (§ 1320, subd. (b)); and vandalism causing over $400 in damage (§ 594,
subd. (b)(1)). The information also alleged that when defendant committed those crimes
he had been released from custody in a different case (§ 12022.1), and that defendant
suffered a prior serious felony conviction (§§ 667, subd. (e)(1), 1192.7, subd. (c)) in 2009
that also qualified as a prior serious felony conviction for purposes of the five-year
enhancement contemplated by section 667, subdivision (a).
In March 2020, a jury found defendant guilty on all counts except for the Vehicle
Code offense, and defendant admitted the prior serious felony conviction for purposes of
subdivisions (a) and (e) of section 667.
As for the section 12022.1 enhancement, the trial court concluded that given our
decision in People v. Johnson (2012) 208 Cal.App.4th 1092 (Johnson), defendant was not
entitled to a jury resolution of the issue, and found the allegation true. The trial court
said: “I . . . sent some information to the attorneys about the 12022.1 enhancement,
specifically People versus Johnson . . . . So that’s really the case that the [c]ourt is
relying on,” for the proposition that a defendant is not entitled to a jury trial on the truth
of a section 12022.1 allegation.
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In an April 2020 hearing, defense counsel expressed an intent to make a request
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, asking the trial court to
strike the prior conviction enhancements.
At the beginning of the May 2020 sentencing hearing, the trial court stated that it
had read and considered the pre-sentencing report prepared by a probation officer, and
noted that though sentencing “was continued for [defense counsel] to look into filing any
other motions,” none had been filed. Defense counsel replied, “We informed [defendant]
this morning that that did not get filed and he is willing to go forward regardless.”
The probation officer’s report explained that defendant “ha[d] eleven prior felony
convictions and multiple prior misdemeanor convictions” “dating back to the 1980’s.”
“The longest period he remained free from criminal justice intervention occurred after
serving a prison term, between 2005 and 2009. The defendant was active on summary
probation . . . when he committed the present offense.”
The report detailed defendant’s multiple convictions suffered after his 2009
serious felony (including commission of misdemeanors in 2010, 2015, and a felony in
2017).
The trial court imposed an aggregate sentence of 11 years in state prison, which
resulted from a doubling of punishment for each offense, pursuant to the three strikes law
(because of defendant’s prior serious felony conviction), and included: (i) a five-year
term for the prior serious felony enhancement; and (ii) a two-year term for the section
12022.1 enhancement.
Regarding imposition of the five-year enhancement, the trial court said: “Because
there is a five-year prior, so that’s that strike prior that was admitted as a five-year Prop 8
prior, the [c]ourt has to impose five years. The [c]ourt does have the authority to strike
the five-year prior. The [c]ourt recognizes that I have that authority. I also recognize
under Romero I have the ability to strike the prior under the three strikes sentencing
scheme. [¶] The [c]ourt has reviewed the probation report and the history in this case.
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Frankly, I find no factors. He’s within the scheme of three strikes. There is no reason to
exercise discretion under Romero and I don’t find any factors to strike the five-year
prior.” (Italics added.)
Regarding imposition of the section 12022.1 enhancement, the trial court said:
“Now in addition, the [c]ourt also has to add two years for the 12022.1 enhancement as
well.”
As for costs, the trial court imposed the statutory minimum restitution fine of $300
(§ 1202.4), a stayed parole revocation restitution fine of $300 (§ 1202.45), a court
operations assessment of $240 (§ 1465.8), and a conviction assessment of $180 (Gov.
Code, § 70373).
Defense counsel made no objections at sentencing.
This appeal followed.
DISCUSSION
As earlier noted, the defendant argues the trial court erred when it: (1) “failed to
recognize its discretion to strike” the section 12022.1 enhancement; (2) refused to strike
his prior conviction for sentencing purposes; and (3) imposed costs without first
determining defendant’s ability to pay (relying on People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas)).
The People argue defendant forfeited these claims on appeal by failing to raise
them in the trial court. In his reply brief, defendant maintains he did not forfeit the first
two claims, but is silent on the question whether he forfeited his Dueñas claim.
We conclude defendant’s section 12022.1 and Dueñas claims are forfeited on
appeal, and his remaining claim is unpersuasive.
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I
The 12022.1 Enhancement
Section 12022.1, subdivision (b) provides: “Any person arrested for a secondary
offense that was alleged to have been committed while that person was released from
custody on a primary offense shall be subject to a penalty enhancement of an additional
two years, which shall be served consecutive to any other term imposed by the court.”
A trial court may strike the enhancement pursuant to section 1385, in furtherance
of justice. (People v. Meloney (2003) 30 Cal.4th 1145, 1155-1156.)
“In making sentencing choices, the trial judge is confronted with a maze of
statutes and rules, the intricacy of which rival the Internal Revenue Code. By reason of
this complexity and the ever-changing guidelines, sentencing error is not uncommon. In
an effort to avoid error, it is therefore reasonable to place the obligation to formulate
specific objections squarely on defense counsel, and not on the judge.” (People v. De
Soto (1997) 54 Cal.App.4th 1, 9.) Therefore, “claims of error in the trial court’s exercise
of its sentencing discretion are . . . forfeited if not raised at the sentencing hearing.”
(People v. Trujillo (2015) 60 Cal.4th 850, 856.)
Here, we agree with the People that defendant’s claim of sentencing error vis-à-vis
imposition of the section 12022.1 enhancement is forfeited on appeal, as it was not raised
below.
Defendant maintains that his claim is not forfeited because a trial court “cannot
properly exercise its discretion if it does not fully understand the scope of that
discretion,” and “the record in this case gives no indication the court was aware of its
discretion” to strike the enhancement. We disagree.
The record reflects that the trial court conducted its own research regarding the
section 12022.1 enhancement and shared with the parties our decision in Johnson. In that
case, in addition to holding that a defendant is not entitled to a jury ruling on the question
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of the truth of a section 12022.1 allegation (the proposition that the trial court invoked
here), we twice referred to a trial court’s discretion to strike the enhancement pursuant to
section 1385. (See Johnson, supra, 208 Cal.App.4th at p. 1097, fn.3; id. at p. 1098.)
Because we must indulge in every presumption to uphold a judgment on appeal
(People v. Chubbuck (2019) 43 Cal.App.5th 1, 12) we presume the trial court -- having
read Johnson -- understood it had discretion to strike the enhancement. Thus, because
defendant has not carried his burden to affirmatively demonstrate the trial court was
unaware it had that discretion (ibid.), this claim is forfeited.
We are not persuaded by defendant’s contention that the trial court’s statement
that it “ha[d] to add two years for the 12022.1 enhancement” is an affirmative
demonstration the trial court was unaware of its discretion. This is so, because as the
People observe, the trial court used similar phrasing when it explained its discretionary
decision not to strike the five-year enhancement, saying: “[T]he [c]ourt has to impose
five years. The [c]ourt does have the authority to strike the five-year prior. The [c]ourt
recognizes that I have that authority.” (Italics added.)
II
The Prior Conviction
While the record reflects that defendant never explicitly asked the trial court to
strike his prior serious felony conviction for purposes of the three strikes law or the five-
year enhancement pursuant to section 667, subdivision (a), we conclude the trial court’s
apparently sua sponte discussion of the reasons why it declined to strike the prior
conviction is sufficient for defendant to raise the issue on appeal.
The Three Strikes Law
The three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) uses a
defendant’s status as a recidivist to separately increase the punishment for each new
felony conviction. (People v. Williams (2004) 34 Cal.4th 397, 404 (Williams).) In
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considering a Romero motion to dismiss a prior strike conviction allegation, the trial
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] 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.) We review the trial court’s denial of a Romero
motion for abuse of discretion. (See People v. Carmony (2004) 33 Cal.4th 367, 375
(Carmony).)
Here, the trial court was within its discretion in concluding that defendant did not
fall outside the spirit of the three strikes scheme given his extensive and long-running
criminal history, including commission of the instant crimes while released from custody
in a separate case. The trial court’s decision was not so irrational or arbitrary that no
reasonable person could agree with it. (Carmony, supra, 33 Cal.4th at p. 377.)
The Prior Serious Felony Enhancement
Defendant argues that the trial court abused its discretion in failing to dismiss the
prior serious felony five-year enhancement, because, inter alia, “at the time of sentencing,
[defendant] was 51 years old,” and “[h]is strike occurred almost 10 years before the
current charges.”
The decision not to strike the five-year enhancement for a prior serious felony is
distinct from the decision not to strike a prior “strike” conviction for purposes of the three
strikes sentencing scheme. (See People v. Bell (2020) 47 Cal.App.5th 153, 200; cf.
Williams, supra, 34 Cal.4th at pp. 401-405 [discussing the different statutory and policy
backdrops of § 667, subd. (a) and the three strikes law].) But we still apply the same
abuse of discretion standard of review. (Carmony, supra, 33 Cal.4th at p. 375.)
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Here, in light of our Supreme Court’s recognition that when the section 667,
subdivision (a) enhancement was added to the Penal Code, “[t]he voters’ intent ‘was to
increase sentences for recidivist’ ” serious felony offenders (Williams, supra, 34 Cal.4th
at p. 404), and given that one of defendant’s instant crimes of conviction -- grand theft of
a firearm -- is a serious felony (§ 1192.7, subd. (c)(26)), we conclude the trial court’s
decision not to strike defendant’s prior serious felony conviction was not “so irrational or
arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at
p. 377; cf. People v. Taylor (2020) 43 Cal.App.5th 1102, 1113-1114 [affirming trial
court’s refusal to strike prior felony conviction for purposes of § 667, subd. (a) even
though the conviction was from 1993 and defendant was 55 years old and in poor health
at sentencing].)
III
Dueñas
Invoking Dueñas, defendant argues the trial court violated due process principles
by imposing costs without first determining defendant’s ability to pay. He argues we
should remand to “allow [defendant] the opportunity to show he does not have the
present ability to pay the fines and fees.”
We agree with the People that this claim is forfeited on appeal, as defendant could
have raised it at sentencing.
Defendant was sentenced months after Dueñas was decided, but he did not raise it,
or assert his inability to pay the imposed costs, at sentencing. Under the circumstances,
defendant forfeited his challenge to the costs imposed.
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DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
MAURO, J.
RENNER, J.
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