People v. Ciceu CA3

Filed 10/23/26 P. v. Ciceu CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) THE PEOPLE, C103911 Plaintiff and Respondent, (Super. Ct. No. 22F1165) v. BRYON DAVID CICEU, Defendant and Appellant. Following remand from this court for a full resentencing, the trial court sentenced defendant Bryon David Ciceu to an aggregate term of 16 years eight months for burglary, corporal injury to a cohabitant or person in a dating relationship, criminal threats, assault with a deadly weapon, and false imprisonment by violence or menace. His sole contention in this second appeal is that the trial court abused its discretion by denying his motion to strike his prior felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). For the reasons set forth below, we disagree and will affirm the judgment. 1  PROCEDURAL BACKGROUND In October 2022, a jury found Ciceu guilty of numerous charges stemming from multiple acts of domestic violence that occurred over a period of two days in July 2022. 1 (Pen. Code, 2 §§ 459, 460, subd. (a) [first degree burglary; count 1], 273.5, subd. (a) [corporal injury to a cohabitant or person in a dating relationship; counts 2 & 5], 422 [criminal threats; count 3], 245, subd. (a)(1) [assault with a deadly weapon; count 4], 236 [false imprisonment by menace or violence; count 6], & 594, subd. (b)(2)(A) [misdemeanor vandalism; count 8].) The jury also found true the following special allegations: the crimes involved great violence (Cal. Rules of Court, 3 rule 4.421(a)(1)), the victim was vulnerable (rule 4.421(a)(3)), Ciceu was in a position of trust (rule 4.421(a)(11)), and Ciceu used a weapon (rule 4.421(a)(2)). In a bifurcated proceeding, the jury further found true that Ciceu had suffered both a prior strike (§ 1170.12, subd. (a)) and a prior serious felony conviction (§ 667, subd. (a)(1)) for an assault with a deadly weapon charge from 2003. The jury also found true that his prior convictions as an adult were numerous and of increasing seriousness (rule 4.421(b)(2)), that he served a prior prison term for the aforementioned 2003 assault (rule 4.421(b)(3)), and that he had unsatisfactory performance on probation and/or parole (rule 4.421(b)(5).) 1 The facts and details of the underlying offenses are fully set forth in the unpublished opinion from Ciceu’s first appeal, which is included in the appellate record for the instant appeal. (People v. Ciceu (Jun. 27, 2024, C097900) [nonpub. opn.].) Relevant facts are incorporated below in the discussion. 2 Further undesignated statutory references are to the Penal Code. 3 Further undesignated rule references are to the California Rules of Court. 2  I Original Sentencing In conjunction with his original sentencing, Ciceu filed a Romero motion, asking the trial court to strike his prior strike and dismiss the five-year prior serious felony enhancements. The trial court declined to do so. Because the jury found that Ciceu had suffered a prior strike and the court declined to strike it, pursuant to section 1170.12, the trial court doubled the imposed terms for first degree burglary (six years doubled to 12), corporal injury (one year doubled to two), criminal threats (two years doubled to four), assault with a deadly weapon (one year doubled to two), false imprisonment (eight months doubled to 16), and imposed a concurrent term of six months for the misdemeanor vandalism. In addition, the trial court imposed but stayed the prior serious felony enhancements and stayed his sentence for count 5 pursuant to section 654, the corporal injury charge that occurred on July 2, 2022. The trial court sentenced Ciceu to an aggregate term of 17 years four months. Ciceu appealed. On appeal, this court remanded the case for a full resentencing, instructing the trial court to either impose or strike the prior serious felony enhancements, and to stay either the count for burglary or corporal injury (count 2) pursuant to section 654. II Resentencing On remand, the judge who imposed Ciceu’s original sentence conducted his resentencing. As a part of the resentencing, the trial court reconsidered its ruling on Ciceu’s original Romero motion filed in conjunction with his original sentencing. A new Romero motion was not filed. In denying the motion a second time, the court “consider[ed] the factors outlined by case law, including People versus Romero, 13 Cal.4th 497, and People versus Williams, 17 Cal.4th 148, as well as Penal Code Section 1385.” In doing so, the trial court found that the offenses in the present case 3 constituted a “violent or serious felony,” that they involved “injury and threat of injury,” and that a weapon was used. In addition to the above, the trial court found that Ciceu initiated the conflict with the victim, who was not a willing participant, and that his conduct “cannot be said to be partially excusable for some other reason.” The court did consider the fact that Ciceu’s prior strike for assault with a deadly weapon was many years old but noted that he was incarcerated for much of that time. Ciceu had suffered seven criminal convictions since his first strike, two of which were felonies. Finally, the trial court noted that the jury had found true a number of aggravating factors, so “it [did] not appear, in light of the nature and circumstances of this case, that the defendant—and the defendant’s background … [fell] outside of the spirit of the ‘three strikes’ law and sentencing scheme.” The trial court again declined to strike the prior felony conviction. Following this court’s instructions, the trial court dismissed the prior serious felony enhancements under section 667, subdivision (a)(1), and stayed the sentence for count 2, corporal injury, pursuant to section 654. Ciceu was resentenced to an aggregate term of 16 years eight months. Because the trial court declined to dismiss Ciceu’s prior strike, the sentence imposed for each felony count was again doubled pursuant to section 1170.12. Ciceu timely appealed. DISCUSSION Ciceu contends that the trial court abused its discretion in denying his Romero motion to strike his prior felony conviction. Ciceu avers that the remoteness of the prior strike, the “minor nature” of the instant offenses, and his “character, and prospects” place him outside of the spirit of the “Three Strikes” law, and therefore the trial court should have dismissed his prior strike. We disagree and conclude that the trial court did not abuse its discretion. 4  A judge has discretion to dismiss a prior strike conviction, but only “in furtherance of justice.” (Romero, supra, 13 Cal.4th at p. 530; § 1385, subd. (a).) In doing so, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior [strike] convictions, and the particulars of his 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 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 a trial court’s decision to deny a Romero motion under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) There is a strong presumption that because the Three Strikes law “establishes a sentencing norm,” any sentence imposed in conformity with its scheme is “both rational and proper.” (Carmony, at p. 378.) Thus, a trial court abuses its discretion by failing to strike a prior strike only in limited circumstances, such as where it was unaware of its discretion to dismiss or where it considered impermissible factors. (Ibid.) Or, if under the specific facts of the case, a sentence imposed otherwise conforming to the Three Strikes law’s requirements, as a matter of law, “ ‘produce[s] an “arbitrary, capricious, or patently absurd” result.’ ” (Carmony, at p. 378.) It is the attacking party’s burden to show that the trial court’s sentencing decision was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at p. 376.) A showing that reasonable minds may disagree about whether the prior strike should be stricken is not enough. (Id. at p. 378.) “[T]he 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,’ ” and, 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.) 5  Here, Ciceu fails to carry his burden to show that this is an extraordinary case that places him outside of the spirit of the Three Strikes law. Ciceu asserts that his prior strike should be dismissed because the conviction was very remote, dating back to 2003. Although a remote strike can be dismissed, merely “consult[ing] the Gregorian calendar with blinders on” to make this determination is improper. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813 (Humphrey).) An old conviction can, however, “ ‘wash[] out’ ” if the defendant has had a “crime-free cleansing period of rehabilitation” after “reflect[ing] upon the error of his or her ways.” (Ibid.) That is not the case before us. Ciceu has had seven total criminal convictions since his 2003 conviction for assault with a deadly weapon, spanning from 2004 to 2021, including multiple probation violations. These convictions include assault with force likely to cause great bodily injury, assault by a prisoner, possession of a controlled substance, failure to appear, the selling of tear gas and/or a tear gas weapon, and obstructing a public officer. Two of these are felonies, and, as the trial court noted, he spent much of the intervening time in prison. Despite Ciceu’s contention that the subsequent offenses were “minor,” Ciceu has not led a “ ‘legally blameless life’ ” since the 2003 prior, and as such this is not an occasion of a “ ‘washing out’ ” of the prior strike. (Humphrey, supra, 58 Cal.App.4th at p. 813; see also People v. Mayfield (2020) 50 Cal.App.5th 1096, 1107 [“older strike convictions do not deserve judicial forgiveness unless the defendant has used them as a pivot point for reforming his ways”].) The trial court also disagreed with Ciceu’s characterization of the instant offenses as “minor” or “not particularly egregious.” Ciceu broke down the back door of his long- term partner’s house, grabbed her by her hair and throat, and shook her head. When she tried to leave, he blocked her path and took her purse. She left, and when she returned home the next day, he had a knife in his hand, and with it, he stabbed her couch and her rug. Ciceu then approached the victim and held the knife to her throat, leaving a mark. He told her that she was “done,” and that he was going to “fuck [her] up.” Ciceu stood 6 over her with a “puffed-out chest,” and refused to let her pass when she again tried to leave. Ciceu’s conduct, as noted by the trial court, “constitute[d] a violent or serious felony” and “involved injury and threat of injury to the victim.” Moreover, he initiated the conflict, was an active participant, and used a weapon. The trial court further noted that for each count, the jury found true numerous aggravating factors, such as the crime involved great violence, and that Ciceu had prior convictions of increasing seriousness. (Rule 4.421(a)(1), (b)(2).) We take issue with Ciceu’s characterization as well. With regard to Ciceu’s background, the trial court considered whether mental illness or childhood trauma contributed to his conduct as mitigating factors. However, as to mental illness, Ciceu failed to provide any expert diagnosis or evaluation to the court to this effect, so there was “insufficient evidence to conclude to what extent [mental illness] contributed to” the incident. The trial court did find that Ciceu’s exposure to childhood maltreatment, which, according to a study produced by the defense, is associated with intimate partner violence perpetration, was a mitigating factor relevant to its consideration. That notwithstanding, it did not appear to the court, “in light of the nature and circumstances in this case,” that Ciceu fell outside of the spirit of the Three Strikes law. The trial court balanced the relevant factors and, in its discretion, declined to strike the prior strike conviction, or put differently, declined to exempt Ciceu from the Three Strikes law’s sentencing scheme. Because Ciceu was not exempt in the trial court’s view, section 1170.12 mandated the second-strike sentence. (§ 1170.12, subd. (c)(1); People v. Murphy (2001) 25 Cal.4th 136, 157 [“where a defendant has a qualifying prior felony conviction, the sentencing provisions of the Three Strikes law not only must be applied, they must be applied in addition to any other punishment provisions”].) The Three Strikes provisions “supplant[] the general penalty provisions and appl[y] to repeat offenders who meet the statutory requirements.” (People v. Cressy (1996) 47 Cal.App.4th 981, 991 (Cressy).) Section 1170.12 states: “Notwithstanding any other law, this section shall be applied in every 7 case in which a defendant has one or more prior serious or violent felony convictions as defined in this section.” (§ 1170.12, subd. (d)(1), italics added.) In considering a Romero motion, a trial court is tasked to determine whether extraordinary circumstances exist such that a defendant should be exempt from a statutorily mandated increased penalty like the Three Strikes law in the interest of justice. Here, the trial court found none and doubled Ciceu’s penalties accordingly because of his qualifying prior strike. On this record, we find no abuse of discretion. Ciceu further argues that the trial court improperly considered aggravating factors found true by the jury to justify the strike, when it also considered those aggravating factors to impose the upper term and multiple consecutive sentences. But rule 4.420, on which Ciceu relies, does not prohibit the court from considering aggravating factors to both impose an upper term sentence and to deny a Romero motion. That is because the Three Strikes law is an alternative sentencing scheme, not an enhancement provision. (Cressy, supra, 47 Cal.App.4th at p. 991; see also People v. Garcia (2001) 25 Cal.4th 744, 757 [“the plain and unambiguous language of the Three Strikes law discloses an intent to impose the … doubled sentence despite a possible ‘dual use’ of defendant’s prior conviction”].) In denying Ciceu’s Romero motion, the trial court determined that he did not fall outside the spirit of the Three Strikes law, it did not aggravate a base term or impose an enhancement. There was thus no inappropriate dual use of facts. Consequently, it cannot be said that the trial court’s decision to deny Ciceu’s Romero motion to strike and thereafter impose a second-strike sentence was “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) Thus, we do not disturb the trial court’s decision. (See id. 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’ ”].) 8  DISPOSITION The judgment is affirmed. /s/ EARL, P. J. We concur: /s/ HULL, J. /s/ ROBIE, J. 9