People v. Peters CA1/3

Filed 8/25/22 P. v. Peters CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,
A162597
v.
BYRON LEONARD PETERS, (Mendocino County Super. Ct.
Nos. SCUK-CRCR-19-31377 &
Defendant and Appellant.
SCUK-CRCR-20-35099)

Defendant Byron Leonard Peters appeals after entering pleas of no
contest to two felony counts of driving under the influence (DUI) with three
or more prior DUI convictions within ten years (Veh. Code, §§ 23152,
subd. (b) & 23550, subd. (a)) and admitting one prior “strike” conviction (Pen.
Code, §§ 667, 1170.12).1 On appeal, he argues: (1) the trial court abused its
discretion in denying his motion to dismiss his prior strike pursuant to People
v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); (2) use of a prior
juvenile adjudication as a strike violated his Sixth and Fourteenth
Amendment rights; and (3) changes in the law support the striking of the fees
imposed for probation’s pre-sentence reports. In supplemental briefing,

1 All further statutory references are to the Penal Code unless otherwise
indicated.

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defendant raises two additional sentencing issues based on recent changes in
sentencing laws. We agree that the recent statutory changes require us to
remand the matter to the trial court. In all other respects, we affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2019, in case number SCUK-CRCR-19-31377 (hereafter “the
31377 case”), the People charged defendant with two counts of carjacking
(§ 215, subd. (a), counts one and three) with a firearm use enhancement as to
one of the counts (§ 12022.53, subd. (b)), possession of a firearm by a felon
(§ 29800, subd. (a)(1), count two), and DUI with three or more prior DUI
convictions within 10 years (Veh. Code, §§ 23152, subd. (b) & 23550,
subd. (a), count four). The People also alleged one prior strike conviction.
(§§ 667, 1170.12.) Defendant waived preliminary examination, and in June
2020, he pled no contest to the DUI count and admitted the prior strike. In
exchange, the remaining counts were dismissed.
On the same date as that plea, defendant pled no contest to another
count of DUI with three or more prior DUI convictions within 10 years (Veh.
Code, §§ 23152, subd. (b) & 23550, subd. (a), count three) in case number
SCUK-CRCR-20-35099 (hereafter “the 35099 case”) and admitted his blood
alcohol content was 0.15 percent or higher (Veh. Code, § 23578).
Prior to sentencing, defendant filed a Romero motion asking the trial
court to strike his prior strike allegation “on the ground of remoteness.”
Defendant argued his prior strike was a section 245, subdivision (a)(2)
violation that occurred over 25 years ago in June 1995, when he was 16 years
old, and that he has never committed any additional serious or violent
offense. He also argued that a medical condition underlies all of his criminal
conduct.

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 At a joint sentencing for both cases, the trial court denied the Romero
motion. Defendant received a sentence consisting of the upper term of three
years for the DUI charge in the case ending in 31377, doubled to six years
because of the strike prior, plus eight months consecutive for the other DUI
in the case ending in 35099.
DISCUSSION
A. Romero Motion
Defendant first argues that the trial court abused its discretion in
denying his Romero motion.
In Romero, supra, 13 Cal.4th 497, the California Supreme Court held
that a trial court may strike a prior violent or serious felony conviction
allegation under the Three Strikes law “ ‘in furtherance of justice’ pursuant
to . . . section 1385[, subdivision ](a).” (People v. Williams (1998) 17 Cal.4th
148, 158 (Williams).) In determining whether a dismissal would be in
furtherance of justice, courts must consider both the constitutional rights of
the defendant and the interests of society represented by the People.
(Romero, at p. 530.) The reasons for the dismissal must motivate a
reasonable judge, and a dismissal should not arbitrarily undercut society’s
legitimate interest in the fair prosecution of properly alleged crimes without
a showing of detriment to the defendant. (Id. at pp. 530–531.)
In assessing a Romero motion, courts should 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 [the
defendant’s] 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 [or she] had not previously been convicted of one or
more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161.)

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An abuse of discretion will be found if a court strikes a sentencing allegation
“solely ‘to accommodate judicial convenience or because of court congestion’ ”
or “simply because a defendant pleads guilty.” (Romero, supra, 13 Cal.4th at
p. 531.) “Nor would a court act properly if ‘guided solely by a personal
antipathy for the effect that the three strikes law would have on [a]
defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his present
offenses,’ and other ‘individualized considerations.’ ” (Ibid.)
We review the denial of a Romero motion for abuse of discretion.
(People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) In undertaking
this review, we bear in mind that “ ‘[i]t is not enough to show that reasonable
people might disagree about whether to strike one or more’ prior conviction
allegations. [Citation.] . . . ‘[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].” (Id.
at p. 378.) “Because 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.)
In this case, the evidence at sentencing included probation’s
presentence reports, defendant’s Romero motion, and letters of support from
defendant’s family and friends. These documents set out the circumstances
of the offenses, defendant’s lengthy criminal history dating back to the early
1990’s, and his gang affiliation and substance abuse history. Moreover, at

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the hearing, the parties discussed defendant’s circumstances in detail,
including his background, the nature of his present offenses, his lengthy
criminal history, the remoteness of his strike offense, his diabetes and
alcoholism, treatment alternatives to a prison sentence, and the conceded fact
that defendant poses an ongoing risk to public safety. The court also heard
from a probation officer who noted that defendant was not checking in with
probation while the criminal proceedings were pending, and that defendant
did not appear to be changing his behavior because he was recently arrested
for drinking alcohol.
In denying the Romero motion, the trial court discussed defendant’s
circumstances and the circumstances of his case. The court started by noting
its general belief that treatment was better than incarceration and
acknowledging that defendant grew up in a place where trauma could occur,
that he had suffered the traumatic loss of his father, and that the letters in
support showed defendant was a good father, friend, and member of the
community when sober. The court also noted that the prior felony strike was
a 1995 juvenile adjudication, which gave the court “great pause.” Though
observing there was a “window of good conduct,” the court nonetheless
emphasized the gravity of the circumstances of the DUI offense in the 31377
case, i.e., defendant had been stopped in a stolen vehicle; he attempted to flee
and was noncompliant with officer orders; and his blood alcohol content was
almost three times the legal limit. Failing to see a sufficient break in
defendant’s pattern of recidivism, the court ultimately concluded that
defendant did not fall outside the spirit of the Three Strikes Law. On this
record, it is clear the trial court balanced the relevant factors and reached an
impartial decision in conformity with the spirit of the law. (Carmony, supra,
33 Cal.4th at p. 378.) No abuse of discretion appears.

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 In arguing to the contrary, defendant seems to ask us to reweigh the
various factors relevant to a Romero motion. Noting that sentencing laws
including the Three Strikes Law have become less “harsh” in recent years
and that a DUI is a “ ‘wobbler,’ ” defendant highlights the circumstances that
he is a middle-aged man with uncontrolled diabetes, that he was willing to
seek residential treatment for his alcoholism and drug addiction, and that he
had a lengthy criminal history from the time his father was killed. But this
misconstrues our standard of review. Again, “ ‘[i]t is not enough to show that
reasonable people might disagree.’ ” (Carmony, supra, 33 Cal.4th at p. 378.)
“ ‘[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].” (Ibid.) On this record, the court
did not abuse its discretion in denying the Romero motion.2
B. Juvenile Adjudications as Strikes
Defendant next argues the holding in People v. Nguyen (2009) 46
Cal.4th 1007 (Nguyen)—that the state may use a prior juvenile adjudication
to increase punishment—is no longer constitutionally tenable given the
holdings in Descamps v. United States (2013) 570 U.S. 254 (Descamps),
Mathis v. United States (2016) 579 U.S. 500 (Mathis) and People v. Gallardo
(2017) 4 Cal.5th 120 (Gallardo). Thus, he contends, the use of his juvenile
adjudication as a prior strike violates his Sixth and Fourteenth Amendment

2 Nonetheless, as will be discussed below, a remand for resentencing in
this case is required because of recent changes to sentencing laws. Because a
trial court may reconsider all of its sentencing choices on remand (see, e.g.,
People v. Buycks (2018) 5 Cal.5th 857, 893), we note that our decision here
concerning the propriety of the court’s ruling on the Romero motion at the
initial sentencing does not foreclose defendant from renewing that motion
during resentencing.

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rights. We review this question of law de novo (In re Martinez (2012) 210
Cal.App.4th 800, 815), and we reject it.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States
Supreme Court held that, apart from the fact of a prior conviction, “any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” (Apprendi, at p. 490.) In Nguyen, supra, 46 Cal.4th 1007, the
California Supreme Court determined that “the Fifth, Sixth, and Fourteenth
Amendments, as construed in Apprendi, do not preclude the sentence-
enhancing use, against an adult felon, of a prior valid, fair, and reliable
adjudication that the defendant, while a minor, previously engaged in felony
misconduct, where the juvenile proceeding included all the constitutional
protections applicable to such matters, even though these protections do not
include the right to jury trial.” (Nguyen, at p. 1019.)
We are bound to follow Nguyen, which forecloses defendant’s claim.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant’s contention that Nguyen is no longer valid precedent after the
decisions in Descamps, Mathis, and Gallardo was recently rejected in People
v. Romero (2019) 44 Cal.App.5th 381, and we agree with the reasoning in
that case. Not only did the Supreme Court recently explicitly decline to
reconsider Nguyen (People v. Landry (2016) 2 Cal.5th 52, 117, fn. 18), but
Descamps, Mathis, and Gallardo do not assail Nguyen’s holding. (People v.
Romero, supra, 44 Cal.App.5th at pp. 388–390.) In short, both Descamps and
Mathis invoked Apprendi to limit the use of judicial factfinding to increase
sentences under the federal Armed Career Criminal Act. (Descamps, supra,
570 U.S. at pp. 269–270; Mathis, supra, 579 U.S. at pp. 511–512.)
Meanwhile, Gallardo held it was error for a trial court to review a

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preliminary hearing transcript to determine if a prior assault conviction
qualified as a strike. (Gallardo, supra, 4 Cal.5th at pp. 136–137.) While
Descamps, Mathis, and Gallardo “all disapprove judicial factfinding by a
sentencing court to determine whether the defendant suffered a qualifying
prior conviction when that issue is unclear from the fact of the conviction
itself, none of those cases calls into question Nguyen’s holding that a
sentencing court may impose a sentence enhancement based on a prior
juvenile adjudication, despite the lack of right to a jury trial in that
proceeding.” (People v. Romero, supra, 44 Cal.App.5th at p. 389.)
Beyond the foregoing, defendant also claims that the use of his juvenile
adjudication to increase his punishment violated his Fourteenth Amendment
due process rights because it “violated California’s promise that the juvenile
system’s primary purpose is to provide ‘care, treatment, and guidance’ to
rehabilitate minor offenders.” Citing Welfare and Institutions Code section
202, subdivision (b) and McKeiver v. Pennsylvania (1971) 403 U.S. 528—
which held there is no constitutional right to a jury trial in juvenile
proceedings, which are not criminal prosecutions (McKeiver, at pp. 541,
545)—defendant argues that using a juvenile adjudication to increase
punishment is inconsistent with the remedial purpose of juvenile proceedings
and so violates principles of fairness. Defendant also relies on State v. Brown
(La. 2004) 879 So.2d 1276, where the Louisiana Supreme Court held that
using a juvenile adjudication to increase adult punishment violated the
defendant’s Fourteenth Amendment rights and made a “ ‘hypocritical
mockery’ ” of the notion that juvenile proceedings are focused on
rehabilitation with the state’s role as parens patriae. (State v. Brown, at
p. 1289.) We are not persuaded.

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 Significantly, the California Supreme Court has noted that the
Louisiana holding is in the minority, that the “overwhelming majority” of
post-Apprendi federal and sister state decisions allow the use of “nonjury
juvenile adjudications . . . to enhance later adult sentences,” and that “the
United States Supreme Court has declined numerous opportunities to decide
otherwise.” (Nguyen, supra, 46 Cal.4th at p. 1021 & fn. 10.) Moreover, it is
unclear that using a juvenile adjudication to punish an adult recidivist more
harshly is inconsistent with the goals of the juvenile court law to provide
care, treatment, and guidance to minors. We decline to provide an end-run
around the holding in Nguyen, which is binding on us.
C. Assembly Bill No. 1869
Defendant argues that Assembly Bill No. 1869 renders the fees that the
trial court imposed pursuant to section 1203.1(b) for probation’s pre-sentence
reports in his cases unenforceable. The People concede that the fees must be
vacated under a newly enacted law. We accept that concession.
Assembly Bill No. 1869 added section 1465.9, which provides that the
balance of court-imposed costs imposed pursuant to section 1203.1b “shall be
unenforceable and uncollectible and any portion of a judgment imposing those
costs shall be vacated.” (Stats. 2020, ch. 92, § 62, italics added.) By its own
terms, this statute is mandatory and backward looking as it applies to
uncollected costs. (People v. Clark (2021) 67 Cal.App.5th 248, 259.)
Accordingly, we will direct the trial court to vacate the fees at issue on
remand.
D. Other Sentencing Matters
In supplemental briefing, defendant raises additional sentencing
issues. First, he argues a remand is necessary because of changes to
section 1170 made by Senate Bill No. 567 (Senate Bill 567). More

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specifically, effective January 1, 2022, Senate Bill 567 amended section 1170,
subdivision (b), to require that when a statute specifies three potential terms
of imprisonment, a court must presumptively impose the middle term and
may not impose the upper term unless aggravating circumstances proven
beyond a reasonable doubt (or stipulated by defendant) justify doing so.3
(§ 1170, subd. (b)(1)–(2), as amended by Stats. 2021, ch. 731, § 1.3.)
The People properly concede this change in law is retroactive under In
re Estrada (1965) 63 Cal.2d 740, and applies here to defendant’s nonfinal
judgment. (People v. Flores (2022) 73 Cal.App.5th 1032, 1034, 1039.)
Moreover, when imposing the upper term, the trial court relied in part on the
fact that defendant was on post release community supervision (PRCS) as an
aggravating factor. The People acknowledge that the fact defendant was on
PRCS at the time of the offense “was neither admitted by [defendant],
supported by a certified record, or found to be true beyond a reasonable
doubt.” Finding no indication to the contrary, we will remand the case for
resentencing consistent with Senate Bill 567.
Finally, defendant also argues that another recent change to
section 1170 requires a remand. More specifically, Senate Bill 567 amended
section 1170 to add subdivision (b)(6),4 requiring that “unless the court finds

3 Section 1170, subdivision (b)(3), also provides: “Notwithstanding
paragraphs (1) and (2), the court may consider the defendant’s prior
convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.”
4 Defendant asserts the changes to section 1170, subdivision (b)(6), were
made by Assembly Bill No. 124 (Stats. 2021, ch. 695, § 5). Assembly Bill
No. 124 was joined with two other bills—Assembly Bill No. 1540 (2021–2022
Reg. Sess.) (Stats. 2021, ch. 719, § 2) and Senate Bill 567 (Stats. 2021,
ch. 731, § 3)—that all made changes to section 1170, and Senate Bill 567’s
changes to that statute ultimately prevailed.

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that the aggravating circumstances outweigh the mitigating circumstances
that imposition of the lower term would be contrary to the interests of
justice,” the court must impose the lower term when one of the following
contributed to the commission of the offense: “(A) The person has
experienced psychological, physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual violence. [¶] (B) The person
is a youth, or was a youth as defined under subdivision (b) of Section 1016.7
at the time of the commission of the offense. [¶] (C) Prior to the instant
offense, or at the time of the commission of the offense, the person is or was a
victim of intimate partner violence or human trafficking.” (§ 1170,
subd. (b)(6), Stats. 2021, ch. 731, § 1.3.) The People concede defendant should
have the opportunity to argue on remand that this change in law should
apply to him. We agree. Because we are remanding this matter for
resentencing, as discussed, defendant will have the opportunity to seek the
benefit of this new law on remand.
DISPOSITION
The matter is remanded for resentencing, so that the trial court may
reconsider its sentencing choices in light of the recent changes to
section 1170. At the resentencing hearing, defendant may renew his Romero
motion. We express no opinion as to what sentence should be imposed on
remand. The trial court, however, is instructed to vacate the fees imposed for
probation’s pre-sentence investigation and reports, in accord with
section 1465.9. In all other respects, the judgment is affirmed.

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 _________________________
Fujisaki, J.

WE CONCUR:

_________________________
Tucher, P.J.

_________________________
Petrou, J.

People v. Peters (A162597)

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