People v. Forman CA2/8

Opinion

Filed 9/8/26 P. v. Forman CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE B340919

Plaintiff and Respondent, Los Angeles County Super. Ct. No. NA092627-01 v.

MARCUS BLAINE FORMAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Richard M. Goul, Judge. Reversed in part, affirmed in part and remanded with directions.

Three Strikes Project, Stanford Law School, Milena N. Blake for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Nicholas J. Webster and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________ Defendant Marcus Blaine Forman appeals the denial of his request for resentencing pursuant to Penal Code1 section 1172.1 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm in part and reverse in part, and remand for the trial court to enter a new order granting Forman’s Romero motion in whole or in part to arrive at what the trial court determines is a just sentence proportionate to Forman’s offenses, personal background, and criminal history.2 BACKGROUND I. Facts This court previously summarized the relevant factual background as follows: “On April 24, 2012, at approximately 9:30 p.m., Forman entered a Rite Aid store, approached an undercover loss prevention officer and asked him where he was from. The officer said he was from ‘nowhere.’ Forman said, ‘This is Insane Crip Gang.’ He then walked to the liquor aisle, placed four bottles of Absolut Vodka in his backpack, and left the store without paying for them. [¶] Another loss prevention officer, Anthony Ford, followed Forman. Ford identified himself as a loss prevention officer and asked Forman to return to Rite Aid. Forman said, ‘I don’t care.’ Ford continued to follow Forman. Forman put his backpack down, took a fighting stance, and yelled out his gang name. He then retrieved his backpack and ran down the street. Ford continued after him. Forman put down 1 Undesignated statutory references are to the Penal Code. 2 Because we reverse the trial court’s denial of Forman’s Romero motion and remand for resentencing, we need not reach the merits of his Eighth Amendment argument.

2 the backpack and again assumed a fighting stance. Ford attempted to pick up the backpack and Forman punched him in the face, causing him to fall back. A car pulled up, Forman jumped in, and he left.” (People v. Forman (Nov. 19, 2014, B253016) [nonpub. opn.].) II. Procedural History On October 1, 2013, a jury convicted Forman of one count of second degree robbery, in violation of section 211, and one count of second degree burglary, in violation of section 459. The jury also found true special allegations that both crimes were committed to benefit a criminal street gang in violation of section 186.22, subdivision (b)(1). Forman had previously sustained a juvenile adjudication for robbery, a violation of section 211, when he was 17 years old, and a conviction for attempted criminal threats, a violation of section 664, when he was almost 23 years old. The trial court found the two prior serious felonies strikes under California’s Three Strikes law, found true the five-year prior violent felony allegation based on the criminal threats conviction, and found true three prior state prison terms. The trial court sentenced Forman to state prison for an aggregate term of 48 years to life in prison under California’s “Three Strikes” law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)). On direct appeal in November 2014, we struck a one-year prior prison term enhancement pursuant to section 667.5, subdivision (b)(1). (People v. Forman, supra, B253016.) Forman’s sentence was later amended in 2019, when the trial court struck the 10-year gang enhancements pursuant to People v. Williams (2014) 227 Cal.App.4th 733, but left intact the life sentence and remaining enhancements. The new sentence 3 was an aggregate term of 32 years to life, consisting of 25 years to life for the second degree robbery; five years for the violent felony conviction enhancement under section 667, subdivision (a)(1); and two 1-year prior prison term enhancements under section 667.5, subdivision (b). Forman again appealed, and we ordered the two remaining one-year prior prison enhancements stricken. (People v. Forman (July 1, 2020, B303556) [nonpub. opn.].) We remanded the case to the trial court to decide whether to exercise its discretion to strike the five-year enhancement pursuant to Senate Bill No. 1393 (2017–2018 Reg. Sess.), which amended sections 667 and 1385. (Ibid.) On September 22, 2020, the trial court resentenced Forman, declining to strike the five-year serious felony enhancement and not addressing the two remaining one-year prior prison term as we had ordered. Neither Forman nor his counsel was present at the proceeding. On September 28, 2020, Forman filed a Request for Recall of Sentence pursuant to former section 1170 (later renumbered section 1172.1). On November 28, 2022, Forman filed a Petition in Support of Recall of Sentence pursuant to section 1172.1. On July 12, 2024, Forman filed another petition for relief, asking the court upon resentencing to vacate one or more of his prior strike convictions pursuant to section 1385 and Romero, supra, 13 Cal.4th 497; dismiss his five-year violent felony enhancement; strike the two 1-year prior prison term enhancements as previously ordered; and resentence him to a determinate term of imprisonment.

4 Forman argued mitigating circumstances warranted a reduction in sentence: the relatively minor nature of his commitment offense; the fact that his two prior strikes were committed when he was 17 and 23 years old and involved no serious injuries or weapons; his history of substance abuse, childhood trauma, homelessness, and foster care; and his comprehensive re-entry plans that include wrap-around care and housing. Forman included as an exhibit to his petition a report by forensic psychologist Carl A. Bonacci, outlining Forman’s significant childhood trauma and drug addiction. On July 25, 2024, the trial court held a hearing to recall Forman’s case for resentencing pursuant to section 1172.1. The trial court immediately struck the two 1-year priors as a matter of law. Forman argued the court should exercise its discretion to strike the five-year prior serious felony enhancement imposed pursuant to section 667, subdivision (a). He also argued that at the time of resentencing, the two prior serious felonies were older than five years; one of the priors was older than five years; and one of the priors was committed while he was a juvenile. He then argued that the court should exercise its discretion to determine whether his background, prospects, or character take him “partially or entirely outside the spirit of the Three-Strikes law,” describing his childhood abuse, neglect, trauma, history of addiction, and relative “lack of seriousness” of his juvenile robbery conviction, which involved taking a cell phone and subsequently returning it. Forman’s counsel argued the second strike, a conviction for criminal threats, involved a “relatively short prison sentence [which] indicates to me that it was not a particularly serious offense.” Forman had received an eight- month sentence in state prison doubled to 16 months for his prior 5 strike. Forman contended he could do well when properly supported, and pointed to several good work reports and jobs he maintained while incarcerated, completion of his GED requirements, participation in an anti-recidivism class, as well as the comprehensive reentry plan with the Amity Foundation that he had in place. The People argued Forman presented a public safety concern due to his security score of 180, and the fact that according to his prison C-file, between 2016 and 2020 he had 14 rule violations, three of which involved violence. The People further contended Forman was an active gang member, and that his current commitment offense for robbery occurred in 2012, close in time to his second strike conviction for criminal threats in 2011. The People then acknowledged they did not have an up- to-date C-file record and therefore did not know whether any further rules violations had occurred from 2020 up to the resentencing hearing. The court gave Forman a chance to respond. Forman clarified that the classification score is “not necessarily an indicator of current dangerousness” as it is easily ratcheted up, and “very difficult” to bring down because a score can be reduced by only 12 points per year. He argued that some of his rules violations were positive drug tests for marijuana use. Forman explained he was a gang member while he was a homeless teenager, but that he had never been identified as a prison gang member and he was unable to “debrief” from a street gang while in prison.

6 In resentencing Forman, the court stated: “The court is fully aware of its discretion to reduce the sentence pursuant to the new laws and the Court of Appeals’ interpretations of those laws. However, the court is choosing to exercise discretion and not reduce his sentence any further for the following reasons: [¶] It’s the defendant’s post-sentencing conduct which is the greatest concern which the Court of Appeals said the court must consider the most. His post-sentencing conduct while in the custody of the Department of Corrections has been one of increasing violence. [¶] In 2016 he had battery of a police—of a prisoner. He had numerous rules violations and another battery in 2017 on a prisoner and another battery on a prisoner in 2019. [¶] There is no improvement here. There is no—if there was an early-on battery on a prisoner and there was a reduction in severity of the violations, that would be one thing. But there is no change at all. For the record that we have[,] he’s been violent and that raises legitimate concerns on the part of this court on whether he would be a danger to society if he was released. And the court can only conclude based on Mr. Forman’s performance that he continues to be a danger to society. [¶] So for this reason[,] his total sentence is reduced by the two years the court previously stated to 41 years to life. Any further reductions are denied.” (The court’s oral description of Forman’s final sentence as 41 years to life was, of course, incorrect, in light of the two previous appeals which had reduced his sentence to 30 years to life.) The court’s subsequent minute order recited the correct sentence. The minute order stated no reason for the court’s ruling, simply stating, “The Court exercises its discretion and denies any further resentencing.” Forman timely appealed.

7 DISCUSSION I. The Trial Court Did Not Abuse Its Discretion in Declining to Strike the Five-Year Section 667, Subdivision (a) Enhancement Forman contends the trial court abused its discretion in refusing to vacate his five-year prior serious felony enhancement imposed under section 667, subdivision (a). (§ 1385 [sentencing courts may strike prior strike convictions and may strike five- year prior serious felony enhancements in furtherance of justice].) A. Applicable Law Under section 1172.1, a trial court may recall and resentence “at any time” upon the recommendation of the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case. (§ 1172.1, subd. (a)(1).) Effective January 1, 2024, a trial court may recall a sentence and resentence a defendant on its own motion “at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.” (Ibid.; Assem. Bill No. 600 (2023–2024 Reg. Sess.).) Once a trial court decides to recall and resentence, it may either reduce the sentence by modification or vacate the conviction and impose judgment on “any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading.” (§ 1172.1, subd. (a)(3).)

8 In resentencing the defendant “in the same manner as if they had not previously been sentenced,” the resentencing court “shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, . . . and whether those circumstances were a contributing factor in the commission of the offense.” (§ 1172.1 subds. (a)(1), (5).) Section 1385, subdivision (c)(1) provides “[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.” Section 1385, subdivision (c)(2) further provides: “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” Accordingly, if the court finds that dismissal of an enhancement “would endanger public safety,” then the court need not consider the listed mitigating circumstances. (§ 1385, subd. (c)(2); see People v. Mendoza (2023) 88 Cal.App.5th 287, 296.) A court’s decision not to strike a prior serious felony enhancement is reviewed for abuse of discretion. (People v. Shaw (2020) 56 Cal.App.5th 582, 585 (Shaw).)

9 B. Analysis Forman argues the trial court failed to correctly weigh the factor that his sentence, with the felony enhancement, would result in a sentence a decade longer than the statute states. (See § 1385, subd. (c)(2)(C) [“The application of an enhancement could result in a sentence of over 20 years. In this instance the enhancement shall be dismissed”].) He also contends the court did not correctly consider that his commitment offense was connected to prior childhood trauma and points to the psychological report by Dr. Bonacci. (§ 1385, subd. (c)(2)(E) [“The current offense is connected to . . . childhood trauma”].) Forman then avers the court failed to weigh that the enhancement was based on a prior serious felony conviction that is “over five years old.” (Id., subd. (c)(2)(H).) We find no error. In People v. Walker (2024) 16 Cal.5th 1024 (Walker), our Supreme Court held that “absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present. [Citation.] In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.’ ” (Id. at p. 1029.) The court then stated that in most cases, “ ‘if the trial court finds that dismissal of an enhancement would endanger public safety, then it is hard to see how dismissal would further the interests of justice,’

10 notwithstanding the applicability of any mitigating factors identified in [section 1385,] subdivision (c)(2).” (Id. at p. 1033.) Forman makes no argument to refute the trial court’s finding that dismissing the five-year enhancement would endanger public safety, a finding that essentially renders the enhancement ineligible for dismissal. (See Walker, supra, 16 Cal.5th at p. 1033.) Instead, he argues only that the court abused its discretion in failing to “correctly weigh” and consider these mitigating factors in section 1385. We find the trial court clearly explained its rationale for declining to strike the five-year enhancement. It found dismissal of the enhancement would pose a public safety risk based on Forman’s “post-sentencing conduct” of “increasing violence,” including rules violations for battery and the apparent lack of reduction in the severity of his violations and violent behavior. The trial court based its decision on the nature of the offense of conviction and Forman’s post-conviction conduct. (People v. Jefferson (2016) 1 Cal.App.5th 235, 242–243 [a trial court’s exercise of discretion “ ‘ “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice” ’ ”]; Shaw, supra, 56 Cal.App.5th at p. 588 [no abuse of discretion when the trial court refused to dismiss a five-year sentencing enhancement for a 25-year old prior serious felony conviction, finding “whatever the nature of [defendant’s] past convictions, the trial court could have reasonably determined that their frequency weighed against striking the enhancement”].)

11 II. The Trial Court Failed to Properly Address Forman’s Romero Motion Forman next contends the court abused its discretion in denying his request to dismiss a prior strike allegation pursuant to Romero, supra, 13 Cal.4th 497. A trial court has discretion under the Three Strikes law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. (§ 1385, subd. (a); Romero, at pp. 530–531.) In exercising its discretion, the court may give “no weight whatsoever . . . to factors extrinsic to the [Three Strikes] scheme.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) Instead, “preponderant weight must be accorded to factors intrinsic to the scheme, such the nature and circumstances of the defendant’s present felonies and the prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.” (Ibid.) In considering these intrinsic factors the court must determine whether the defendant “may be deemed outside the 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.” (Ibid; People v. Garcia (1999) 20 Cal.4th 490, 498–499 (Garcia).) While the purpose of the Three Strikes law was to ensure longer prison sentences, the “overarching consideration” and “underlying purpose” in striking prior conviction allegations is the avoidance of unjust sentences. (Garcia, at p. 500.) Abuse of discretion in failing to strike a prior conviction occurs in limited circumstances: where the trial court is not aware of its discretion; where the trial court considers impermissible factors; or where applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd result 12 under the specific facts of a particular case. (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) A reviewing court’s disagreement with the trial court’s weighing of proper factors (as distinct from the trial court’s reliance on improper factors in the weighing process) does not constitute an abuse of discretion. (Id. at pp. 378–379; People v. Dryden (2021) 60 Cal.App.5th 1007, 1029 (Dryden).) Forman argues the trial court abused its discretion by failing to dismiss one or more of his prior strikes because (1) his prior strike conviction for robbery was remote in time, did not involve violence, and was committed when he was 17 years old; (2) in the instant case Forman threw a punch at the security guard who pursued him as he fled the store; he harmed no one in the store during the offense nor was the security guard injured; (3) had the court struck one or two of the prior strikes, he still faced a significant sentence of over 20 years; (4) he participated in significant rehabilitation while in custody and was committed to participate in the Amity Foundation’s wrap-around care in a locked re-entry program; and (5) most significantly, he fell outside the spirit of the Three Strikes law because he had endured a violent and sexually abusive upbringing with sex workers and drug users present in the home, had been in foster care, was homeless as a young child and teenager while his mother was incarcerated, and had a long history of alcoholism and drug addiction, all of which contributed to his criminal conduct. The psychological report appended to Forman’s petition amply supports the stated history and diagnoses.

13 We conclude from this record that the trial court failed to balance the appropriate factors set forth in Williams, that is, Forman’s personal background, character, and prospects, and the specifics of his criminal history, the characteristics of the present offense for which he was being resentenced, or if a shorter sentence would accommodate risks to public safety. (Williams, supra, 17 Cal.4th at pp. 161–163; Garcia, supra, 20 Cal.4th at pp. 499–501 [consideration of lengthy non-Three Strikes sentence does not eviscerate the purpose of the Three Strikes law].) The court’s minute order states no rationale for its ruling. The court’s oral remarks reflect no balancing. The court focused on one factor to the exclusion of all others—danger to public safety—and found that Forman posed a danger to the community based on a prison record that excluded the most recent four of his 10 years of incarceration. While this singularly focused analysis on public safety satisfied the resentencing requirements for five-year enhancements as set out in Walker, this was not the nuanced analysis contemplated and required by the Supreme Court in Romero and Williams. Apart from the trial court’s singular focus on danger to the community and failure to balance the Williams factors, its failure to strike one or more of Forman’s prior strike convictions resulted in a patently absurd result under the specific facts of this case. (See Carmony, supra, 33 Cal.4th at p. 378.) Forman’s commitment offense and circumstances are very similar to those in Dryden, where the Court of Appeal found the trial court’s refusal to strike any of the defendant’s prior strikes resulted in a sentence dramatically disproportionate to the severity of the present offense. (Dryden, supra, 60 Cal.App.5th at pp. 1031-1032.)

14 Like Dryden, Forman was convicted of two prior serious felonies (Dryden actually had three prior strikes). At age 17, Forman committed a robbery where he stole and subsequently returned a cell phone with no injuries. At age 23, he was convicted of attempted criminal threats, again with no serious injuries. Significantly, courts have reversed the denial of dismissal of prior strikes in instances where the prior strikes were far more serious than Forman’s. (See, e.g., People v. Avila (2020) 57 Cal.App.5th 1134, 1140–1141 (Avila) [defendant’s three previous strikes were two robberies and assault with a knife].) Like Dryden, the commitment offense here resulted in minor injuries. Forman likely did not contemplate violence when he shoplifted the four bottles of vodka as he carried no weapons when he entered the store and initially ran away from the first security guard before he turned around and threw a punch at the second security guard pursuing him. The spontaneity and unarmed nature of the violence in Forman’s offense mirrors that of Dryden’s altercation, which occurred sui generis, mushrooming from back and forth drunken name calling and shouted threats and obscenities to a physical altercation. (Dryden, supra, 60 Cal.App.5th at pp. 1013–1015.) Finally, as the court likewise noted in Dryden, and as Dr. Bonacci opined, defendant’s past homelessness, addiction, and childhood trauma likely “ ‘contributed to his actions.’ ” (Dryden, supra, 60 Cal.App.5th at p. 1031; Avila, supra, 57 Cal.App.5th at p. 1145 [defendant’s criminal conduct “appears to be related to his drug addiction rather than to sinister motives and falls well outside the realm of what could be considered the work of a career criminal”].)

15 The record reflects that despite Forman’s checkered disciplinary history during the first six years of his incarceration, he worked to rehabilitate and was praised for his “positive attitude and contribution” to the substance abuse recovery and anti-recidivism classes through the Anti-Recidivism Coalition. Forman completed courses on criminal addictive thinking, anger management, and reentry preparation. In 2019, he was recognized for his rehabilitative achievement with an award for “ ‘participation in approved group or individual activities which promote the educational, behavioral, or rehabilitative development of an inmate.’ ” He also completed the requirements for a GED. We do not overlook the significance of Forman’s prior criminal history, but we conclude that besides the trial court’s singular and therefore misguided focus on public safety, it abused its discretion under the principles of proportionality set out in Romero. Indeed we invoke the comments of the Dryden court, which we find apt: “A trial court’s sentencing discretion is very broad, and rightly so. Among other considerations, as a reviewing court we are not able to observe the demeanor of defendants or witnesses, and we therefore do not substitute our discretion for that of the trial court. Notwithstanding its broad discretion and our deferential standard of review, a trial court’s ruling on a Romero motion remains reviewable. The sentence of 25 years to life consecutive to 15 years imposed here presented that rare instance of an absurd result under the Three Strikes law that goes beyond mere disagreement with the trial court’s decision. We will therefore reverse and remand for reconsideration.” (Dryden, supra, 60 Cal.App.5th at p. 1031.)

16 Some may question how we can affirm the trial court’s finding that Forman poses a danger to the community yet find the trial court erred in imposing a Three Strikes sentence on Forman. We see no incongruity. Balanced proportionality is the key in analyzing a request to strike under Romero. It is one thing to find it appropriate for Forman to remain in custody for an additional five years because he still poses a danger to the community. With that finding, the trial court is not required to balance any other factors. (Walker, supra, 16 Cal.5th 1029– 1030.) However, it is quite another to label Forman a career criminal deserving of a 25-to-life sentence for the petty theft that occurred here, without balancing the equation, as required by Romero and Williams, by considering his personal history of trauma and abuse and efforts at rehabilitation. A Three Strikes sentence of 25 years-to-life for stealing four bottles of vodka and throwing a punch at a pursuing store guard is a patently absurd and disproportionate result. (Carmony, supra, 33 Cal.4th at p. 378[arbitrary, capricious or absurd sentences are properly reviewed for abuse of discretion].)

17 DISPOSITION The judgment is reversed in part and affirmed in part. The matter is remanded to the trial court to enter a new order granting Forman’s Romero motion in whole or in part, and to impose a sentence proportionate to Forman’s offenses, criminal history, prospects, and background. The trial court shall enter an amended judgment and transmit a new abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

WILEY, J.

SCHERB, J.