Filed 2/23/22 P. v. Lujan CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Riverside County, Michael B. Donner, Judge. Affirmed and remanded with directions.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General for Plaintiff and Respondent.

A jury convicted James Edward Lujan of attempted carjacking (Pen. Code,[1] §§ 664/215, subd. (a); counts 1 & 3), carjacking (§ 215, subd. (a); count 2), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4). It further found true allegations that he personally used a firearm in the commission of the carjacking offenses. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) In bifurcated proceedings, the court found true Lujan suffered two prior convictions that qualified as serious felonies and strikes. (§§ 667, subd. (a), 667, subd. (c), 1170.12, subd. (c).)

The court denied Lujan’s motion to dismiss a prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and sentenced him to an indeterminate term of 75 years to life plus a consecutive 30-year determinate term as follows: On the principal term of count 2 (carjacking), 25 years to life (under the “Three Strikes” law) plus a determinate 10-year term for the firearm enhancement; on each of counts 1 and 3, indeterminate 25 year-to-life terms plus 10-year determinate terms for each firearm enhancement. The court imposed but stayed the sentence on count 4 and exercised its discretion to strike the punishment for the prior serious felony convictions.

Lujan contends: (1) the trial court abused its discretion by failing to dismiss one or more of his strike convictions under Romero, supra, 13 Cal.4th 497; and (2) under Assembly Bill No. 1869, which applies here, this court should vacate booking fees that the trial court imposed under Government Code section 29550. The People concede and we agree with the latter contention. We affirm and remand with directions set forth below.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2016, Lujan approached A.D.’s car and asked her for a ride. She initially refused, but later asked him where he needed to go. Lujan responded, “[N]one of your fucking business.” Lujan pulled up his shirt to reveal a gun, and ordered A.D. out of her car. After A.D. refused, Lujan ran away. A.D. reported the incident to police.

Shortly afterwards, Lujan approached I.C., an Uber driver who was waiting for her passengers. Lujan climbed into the front seat of her vehicle and put a gun to her temple. She heard the gun cock and felt like she was being kidnapped. Lujan told her, “Go, bitch.” I.C. was in shock and feared for her life. As I.C.’s passengers approached, Lujan put his gun down and exited the car, threatening to kill one of the approaching passengers.

That same day, Lujan approached C.C., who was in her car with her teenage daughter and a friend. After some conversation, the women got out of the car and C.C. said regarding Lujan, “Oh my God. He’s got a gun.” C.C. and her daughter ran away. Lujan was unable to start C.C.’s car, and left the keys inside the car.

Before sentencing, defense counsel filed a Romero motion to dismiss one or both of Lujan’s prior strikes on the ground that the first one, a 1994 second degree robbery, was remote; moreover, Lujan argued the second prior strike, which occurred in 2004, was not violent or particularly serious.

The prosecution opposed the motion based on the circumstances of the current convictions, and the fact Lujan targeted three different women in the underlying violent crimes. After summarizing Lujan’s lengthy criminal history, beginning when he was around 18 years old and including burglaries, robberies, assault upon a police officer and weapons possession, the prosecutor concluded: “[Lujan's] deviance has spanned more than 30 years. Since it began, he has incurred a total of five separate strike offenses (including the current convictions) and led a life of crime. He has been arrested for committing crimes 17 times and has been sentenced to either prison or jail 11 times. Prior to the current strike offenses, [Lujan] had numerous opportunities to change his behavior, but instead, he decided to continue his life of crime.” (Emphasis omitted.)

After considering the pleadings, probation report and the arguments of counsel, the court acknowledged its discretion and denied Lujan’s motion, finding no mitigating circumstances existed and that Lujan “falls squarely within . . . the four corners of what was contemplated in the three strikes law.” The court pointed out that all three serious felonies in the underlying case were also strikes, and Lujan now has five strikes. The court enumerated Lujan’s criminal history, which started in 1985, and told Lujan: “You’re 54 years old, you’ve been committing crimes since 1985, 35 years you’ve been committing crimes. And they started out extremely small, misdemeanors. You graduated to burglaries, and you graduated to a robbery with continued use of most of the street drugs that are out there, according to your own statement to Probation. [¶] And then [that] culminated in you being released from state prison, having, I’m sure, been told by the last judge that sentenced you to the 16 years in state prison what would happen to you if you reoffended. So I know that you knew the consequences if you were to reoffend having two prior strikes.”

DISCUSSION

I. Romero Motion

Lujan contends that no reasonable person could conclude the trial court acted properly in declining to dismiss one or more of his prior strike convictions: “In sum, the nature and circumstances of the past and present offenses do not warrant the [t]hree [s]trikes sentences imposed on all counts. However, assuming the trial court did not abuse its discretion in imposing the indeterminate sentence on count 2, the interests of justice do not warrant consecutive unservable sentences on counts 1 and 3. The strikes are old. The

2004 strike involves simple gun possession without any violence. All the current offenses are less serious than ordinary offenses of the same type. In addition, [Lujan’s] age militates against the conclusion three indeterminate sentences are necessary to protect society.”

Trial courts have discretion to dismiss “strike” prior convictions in limited cases (Romero, supra, 13 Cal.4th at p. 530), when the dismissal is “in furtherance of justice” (§ 1385; People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213). A trial court’s failure to strike a prior conviction allegation is subject to review for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371, 374; People v. Gillispie (1997) 60 Cal.App.4th 429, 434-435.) The court must consider both the defendant’s constitutional rights and the interests of society. (Romero, at p. 530.) “Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, [the reviewing court] shall affirm the trial court’s ruling, even if [it] might have ruled differently in the first instance.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) A court abuses its discretion when it exceeds the bounds of reason. (People v. Williams (1998) 17 Cal.4th 148, 162.)

Here, the court properly considered the nature and circumstances of the present offenses, the nature of the convictions, and the particulars of Lujan’s background and character. The court addressed the interests of society when it told Lujan: “I don’t think [you] should be out in public. I think you’ve demonstrated a life of crime. I think you constitute an absolute danger to society. Most importantly yourself, you can’t control your urges, and you have not changed. Four years free from prison at 54 years old doesn’t suggest that you’ve changed at all because you have crimes that brought you here today.”

The record shows that for most of Lujan’s adult life he has been incarcerated and, with few exceptions, incapable of rejoining society without committing yet another offense. And, despite repeated opportunities to reform, his criminal conduct became increasingly more serious. The court therefore reasonably concluded, under all of the circumstances, Lujan was not wholly “outside the scheme’s spirit” (People v. Williams, supra, 17 Cal.4th at p. 161), and that it should not dismiss his prior strike convictions. We cannot say the court’s refusal to strike the prior convictions was “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.)

II. Assembly Bill No. 1869

The People concede that Assembly Bill No. 1869 applies to Lujan and that after July 1, 2021, its effective date, he is no longer required to pay the $514.58 booking fees.

At sentencing, the court ordered Lujan to pay a $514.58 booking fee (Gov. Code, § 29550 et seq.). Since the sentencing hearing in this case, the Governor signed Assembly Bill No. 1869 into law, which eliminates many fines, fees, and assessments courts impose under a range of statutes. (Assem. Bill No. 1869 (2019-2020 Reg. Sess.) §§ 2, 62.)

Among other provisions, section 11 of Assembly Bill No. 1869 added Government Code section 6111, which provides that “the unpaid balance of any court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Gov. Code, § 6111, subd. (a).)

Under the plain language of Government Code section 6111, subdivision (a), the unpaid balance of the booking fee must be vacated. (See People v. Lopez-Vinck (2021) 68 Cal.App.5th 945.)

DISPOSITION

On remand, the court is directed to vacate any portion of the $514.58 booking fees imposed under Government Code section 29550 unpaid as of July 1, 2021. In all other respects, the judgment is affirmed.

O’ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

DO, J.

[1] Undesignated statutory references are to the Penal Code.