Filed 7/20/21 P. v. Dirksen CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B308596
(Super. Ct. No. 2017031326)
Plaintiff and Respondent, (Ventura County)
v.
PETER JEREMY DIRKSEN,
Defendant and Appellant.
Peter Jeremy Dirksen appeals from the trial court’s
denial of his request to strike the five-year prior serious felony
enhancement to his sentence (Pen. Code,1 § 667, subd. (a)). He
contends the court erred because it did not comply with the terms
of the remand order issued after his previous appeal. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2018, Dirksen pled guilty to second degree murder
(§§ 187, subd. (a), 189, subd. (b)) and assault with force likely to
cause great bodily injury (§ 245, subd. (a)(4)), and admitted that
1 Statutory references are to the Penal Code.
he inflicted great bodily injury during the assault (§ 12022.7,
subd. (a)). (People v. Dirksen (Mar. 7, 2019, B292501) 2019 WL
1074535 at p. *1 (Dirksen) [nonpub. opn.].) He also admitted that
he suffered a prior strike conviction (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)) and prior serious felony conviction, and
that he served a prior prison term (§ 667.5, subd. (b)). (Dirksen,
at p *1.) The trial court sentenced him to 23 years to life in state
prison: 15 years to life on the murder, three years on the assault,
and five years on the prior serious felony. (Ibid.)
Three months later, the governor signed Senate Bill
No. 1393 (2017-2018 Reg. Sess.), which gave trial courts the
discretion to strike or impose prior serious felony enhancements.
(Stats. 2018, ch. 1013, §§ 1 & 2; People v. Garcia (2018) 28
Cal.App.5th 961, 965.) After Dirksen’s first appeal, we remanded
the case with directions that the trial court hold a hearing to
exercise that discretion. (Dirksen, supra, 2019 WL 1074535 at p.
*2.)
Twelve days after we filed the opinion the trial court
held a hearing in an attempt to comply with our directions on
remand. At the hearing it stated:
“It was not my intention—it was not an oversight
when I imposed that (a) prior for Mr. Dirksen at the
time of the plea—negotiated disposition with a plea
to Penal Code 187, second, which added 15 to life,
which I intended to impose. That, plus the additional
specials for 23 years to life in prison, which included
the imposition of the 667.5(a) [sic] prior. That was
my intention. It was not an oversight. I was
knowledgeable of what occurred, what could have
occurred with the change of the law. Even with the
change to the law, it is not my intent today or back
2
then to make it other than 23 years to life imposed for
Mr. Dirksen.” (Italics added.)
In August 2020, the trial court held a second hearing
to make clear that it was aware of its discretion to strike the
prior serious felony enhancement at Dirksen’s original sentencing
hearing in 2018. The court said that it declined to do so then
because it believed that a sentence of 23 years to life was
appropriate. And it had not changed its view over the succeeding
two years:
“This is a judgment that is final but for the
resentencing issues in which the Court of Appeals
[sic] is basically directing me to make sure that I was
aware of my rights, if I wanted to, in 2018 in April to
strike the (a) prior, which was an additional five-year
enhancement.
“Based on the facts and circumstances as I reviewed
it, it was discussed with [counsel] at the time of the
plea and well understood that if I wanted to do so, I
could strike the (a) prior. I declined to do so at the
sentencing there as I felt a 23-years-to-life sentence for
the death of the individual whom you had a
relationship with and for the charge you pled guilty to
was appropriate. (Italics added.)
“I said that then; I said that on March 19, 2019; and
I’m saying that now. And I understood the discretion
that I had. I chose not to exercise the discretion as to
the (a) prior and intended to impose that as part of
that 23-to-life sentence.” (Italics added.)
3
DISCUSSION
Dirksen contends the case should be remanded once
again for the trial court to comply with the terms of the remand
order we issued after the prior appeal in this case. We disagree.
Though some of the comments made during the post-
remand proceedings could reasonably be interpreted to suggest
that the trial court was confused about when it gained the
discretion to strike or impose a serious felony enhancement, any
error was harmless. At both the 2019 hearing and the 2020
hearing, the court repeatedly stated that it would not have struck
the five-year serious felony enhancement if it had the discretion
to do so at Dirksen’s original sentencing hearing because it
thought a sentence of 23 years to life was “appropriate.” Such a
“clear indication that the . . . court would not have reduced
[Dirksen’s] sentence even if at the time of sentencing it had the
discretion to do so” obviates the need for another remand.
(People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)2
2 Dirksen contends, and the Attorney General does not
contest, that his notice of appeal was timely filed. Because the
clerk of the superior court did not mark the notice as untimely,
we presume that it was timely. (People v. Jackson (1996) 13
Cal.4th 1164, 1213 [court presumes that a clerk regularly
performs official duties]; People v. Funches (1998) 67 Cal.App.4th
240, 244-245 [clerk has duty to either file notice of appeal or
mark it as untimely].)
4
DISPOSITION
The trial court’s order denying Dirksen’s motion to
strike the prior serious felony enhancement to his sentence,
entered August 24, 2020, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
5
Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
John Derrick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Zee Rodriguez and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.