People v. Enborg CA4/2

Filed 11/6/26 P. v. Enborg CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E086793 v. (Super.Ct.No. FSB1002762) DOUGLAS SCOTT ENBORG, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Sally Patrone, under appointment by the Court of Appeal for Defendant and Appellant. 1  Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Daniel Rogersand Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant, Douglas Scott Enborg, appeals from the trial court’s denial of his motion brought pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–531 (Romero) to dismiss his prior strikes when he was subject to resentencing under Penal Code1 section 1172.75. Defendant contends that the trial court abused its discretion in light of his significant efforts at rehabilitation while incarcerated. We affirm. FACTUAL AND PROCEDURAL HISTORY2 “Jane Doe met defendant in February 2010 and they were involved in a sexual relationship while maintaining separate residences. She characterized their relationship before June 27, 2010, as not perfect but not violent. Jane Doe testified as a reluctant witness, blaming herself and offering justifications for defendant’s conduct.” (Enborg-l, supra, E054747 at p. 1.) Jane Doe and defendant “engaged in an angry conversation about whether defendant was cheating on Jane Doe. Jane Doe threatened to leave the house and find the other women. Defendant grabbed her by the shirt because she had stuffed his wallet and 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 We derive much of the factual history of this case from this court’s opinion in defendant’s direct appeal of his judgment. (People v. Enborg (February 14, 2013, case No. E054747), 2013 WL 542754 [nonpub. opn.] (Enborg-1).) 2 keys in her brassiere. Jane Doe claimed she returned to the house willingly where they continued to argue. ¶ Jane Doe contended that she deliberately intended to antagonize defendant and provoke a reaction. Jane Doe locked herself in the bedroom and screamed for help from the window so a neighbor would respond. She falsely reported to the police that defendant threatened to ‘kick [her] ass’ to stop her from screaming.” (Enborg-l, supra, E054747 at p. 1.) Defendant’s neighbor “testified he observed an altercation outside the house between defendant and Jane Doe. While they argued, defendant grabbed her by the hair and dragged her violently into the house, slamming her head on a wall. [The neighbor] could see the shadows of figures fighting inside the house and he heard loud voices. Jane Doe pushed open a screen window and screamed for help, that defendant was ‘[g]oing to kill me, something to that effect.’ [The neighbor’s] wife called the police. After Jane Doe climbed out the window, [the neighbor’s] son ran across the street and intervened between defendant and Jane Doe.” (Enborg-l, supra, E054747 at p. 2.) A police officer “testified that, when he contacted Jane Doe, she was scared and crying. She denied having been drinking. She repeatedly stated that defendant had ‘banged her head against the wall, he choked her, and he threatened to kick her ass.’ When she had fled outside the house, defendant had grabbed her by the hair and throat and dragged her inside, hitting her head on the door frame. She tried to resist but he managed to pull her inside. ¶ They struggled in the house. Jane Doe was kicking, screaming, biting, and hitting but defendant overpowered her. He hit her head on the floor and bit her lower back. He went outside to retrieve her luggage and warned, ‘no 3 one is going to know that you’re here,’ so she felt she had to escape. She tried to scream for help and climb out the bedroom window but he blocked her. She screamed again and saw her neighbors were coming to help. Defendant also choked her, covered her mouth, and threatened her, to ‘shut up before I kick your ass and make you not scream anymore.’ Jane Doe told the officer she was frightened about what defendant might do.” (Enborg-l, supra, E054747 at p. 2.) Defendant was convicted by a jury of “kidnapping; simple battery on a cohabitant; false imprisonment by violence; making criminal threats; and assault likely to produce great bodily injury. (§§ 207, 236, 245, 273.5, and 422.) The jury also found true that defendant had sustained two strike convictions, two felony convictions, and two convictions for which he served separate prison terms. (§§ 667, subds.(a)-(i), and 667.5, subd. (b).) On the principal term of aggravated kidnapping, the court sentenced defendant to an aggregate term of 32 years to life.” (Enborg-l, supra, E054747 at p. 1.) This court reversed the conviction on count 3 for false imprisonment but otherwise affirmed the judgment. (Enborg-l, supra, E054747 at pp. 1, 5.) On November 8, 2023, following the enactment of section 1172.75,3 the trial court struck defendant’s section 667.5 prison priors, reducing his sentence by two years, and set the matter for a full resentencing hearing. 3 Section 1172.75 eliminated virtually all sentence enhancements based on prior prison terms, and entitles a defendant with a now-invalid enhancement to be resentenced. (People v. Rhodius (2025) 17 Cal.5th 1050, 1054-1055.) 4  On July 22, 2025, in connection with the full resentencing hearing, defendant filed a motion requesting resentencing, to vacate his prior conviction, and to have his strike priors recalled and dismissed. Defendant argued as factors in favor of his motion that he was exposed to substance abuse and domestic violence at a young age by his father, that he was diagnosed with schizophrenia at the age of 16, and that his incarceration forced him to address his mental health and substance abuse issues. He provided a mental health evaluation report regarding his childhood trauma that included neglect, abandonment, emotional abuse, physical abuse, and mental abuse. Defendant presented proof of his participation in a restorative justice/victim impact course, a victim’s outreach course, a cognitive behavioral therapy course, an Alcoholics Anonymous course, and a Narcotics Anonymous program. He also identified several rehabilitative programs designed for parolees to have support upon release. Defendant’s mental health evaluation report included a summary of his rule violations while incarcerated. In 2015, defendant was written up for “refusal to report to school.” In 2019, defendant was in violation for possession of drug paraphernalia, and admitted to using heroin two days prior. In 2021, defendant was in violation for possession of a cellphone component, specifically 12 hidden MicroSD cards, which resulted in the loss of family visits for one year. Defendant’s mental health evaluation report also noted, based on a review of defendant’s 2010 probation report, that in 2002 defendant “was convicted of almost identical charges and served a three year state prison term. The officer notes that [defendant] had learned nothing from his prior incarceration, and continued to minimize 5 his actions during the interview.” Defendant’s two strike priors consisted of convictions on May 24, 2002, for criminal threats (§ 422), and assault with a deadly weapon (§ 245, subd. (a)(1)). The People filed an opposition to defendant’s resentencing request on August 20, 2025. The People argued that defendant presented a risk to public safety, that the mitigating factors presented by defendant did not require dismissal of the strike priors, and that dismissal of the strike priors would not be in the furtherance of justice. As set forth in the People’s opposition, “In 2000, [d]efendant was convicted … of Penal Code section 245(a)(1), Assault with Deadly Weapon; Penal Code section 422, Criminal Threats; and Penal Code section 273.5, Corporal Injury to Chil[d]’s Parent. As a result of that plea, Penal Code section 664/207, Attempted Kidnapping was dismissed. Defendant was sentenced to 3 years state prison. Between September 29, 2000 and January 7, 2006, [d]efendant was released and violated on parole 4 separate times. On June 19, 2008, less than 2 years after his last parole violation, [d]efendant was convicted of another felony … and sentenced to 2 years state prison.”4 On August 22, 2025, the trial court denied the request to strike the prior strikes, stating: “I’m treating the defense’s request for a full resentencing as also a Romero motion to strike either one or both of the strikes. In looking at the pattern of criminal activity by the defendant, not only the offenses, but violations of parole and probation 4 We rely on these factual statements in the People’s opposition as defendant did not object to these facts below or in his appellate briefing. (People v. Mayfield (2020) 50 Cal.App.5th 1096, 1103-1104.) 6 and continuing offenses in prison, I don’t think that it is appropriate to strike any of the strikes. ¶ I think the defendant clearly falls into the spirit of the three-strikes law as someone who is a serious repeat offender deserving of the harsher punishment under the three-strikes law.” The trial court did, however, grant defendant’s request to strike his section 667 sentence enhancements, reducing defendant’s sentence by five years. Defendant’s new sentence on the principal count is 25 years to life, with the sentence on the remaining counts stayed. Defendant timely appealed. DISCUSSION “The Three Strikes scheme comes into play when a defendant is charged with new felony offenses but has previously been convicted of designated serious or violent felonies.” (People v. Henderson (2022) 14 Cal.5th 34, 43.) The “Three Strikes” law is intended “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (People v. Conley (2016) 63 Cal.4th 646, 652.) Section 1385, subdivision (a), provides in relevant part that “[t]he judge or magistrate may … in furtherance of justice, order an action to be dismissed.” This subdivision permits the sentencing court to “strike prior felony conviction allegations in cases brought under the Three Strikes law.” (Romero, supra, 13 Cal.4th at pp. 529-530.) As the Supreme Court provided in Romero, “[a] court’s discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in 7 strict compliance with section 1385(a), and is subject to review for abuse.” (Id. at p. 530, italics added.) In People v. Williams (1998) 17 Cal.4th 148, the Supreme Court provided that when the trial court is considering whether to exercise its discretion pursuant to section 1385, subdivision (a), “the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony 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.” (Williams, at p. 161.) The Three Strikes law “establishes a sentencing norm” and “carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) The trial court’s ruling on a Romero motion is generally reviewed for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.) Under this standard of review, defendant has the burden of showing that the sentencing decision was “ ‘irrational or arbitrary,’ ” and in the absence of such a showing “ ‘the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” (Id. at pp. 376-377.) “The trial court is not required to state reasons for declining to exercise its discretion to 8 strike a strike. We presume the trial court has considered all relevant factors in the absence of an affirmative record to the contrary. When the record is silent as to the trial court’s reasons for declining to strike a prior strike, we presume the court correctly applied the law.” (People v. Edwards (2022) 76 Cal.App.5th 523, 529.) Defendant argues that pursuant to section 1385, subdivision (c)(2)(E), the trial court was required to consider mitigating factors such as his “prior victimization or childhood trauma” in determining whether to dismiss the prior strike. The question of whether section 1385, subdivision (c), applies to prior strike convictions “ ‘is a question of statutory interpretation which we review de novo.’ ” (People v. Grandberry (2026) 118 Cal.App.5th 14, 18.) Section 1385, subdivisions (c)(1) and (c)(2), provide in relevant part: “(1) Notwithstanding 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. “(2) 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 …. [¶] … [¶] (E) The current offense is connected to prior victimization or childhood trauma.” 9  Defendant offered evidence of his childhood trauma as part of his motion to dismiss his prior strike. However, we find that subdivision (c) of section 1385 is inapplicable to defendant’s request. “[C]ourts have uniformly rejected the contention that the mitigating factors identified in subdivision (c) of section 1385 apply to a request to dismiss a prior strike because the Three Strikes is an alternate sentencing scheme, not an ‘enhancement.’ ” (People v. Grandberry, supra, 118 Cal.App.5th at p. 19.) Defendant further contends that he is 55 years old, completed numerous programs to address his addiction and mental health issues, and has the support of his family so he is therefore rehabilitated and entitled to his prior strikes being dismissed. He cites to section 1172.75, subdivision (d)(3), which provides that in conducting its resentencing the trial court “may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.” Defendant provides no supporting authority or argument for the proposition that the foregoing subdivision should be part of the trial court’s consideration on a Romero motion that is brought as part of a section 1172.75 resentencing. Moreover, even if the subdivision is applicable, it simply states that the trial court “may” consider those factors. “[T]he usual rule with California codes is that ‘shall’ is mandatory and ‘may’ is permissive unless the context requires otherwise.” (Walt Rankin & Associates, Inc. v. 10 City of Murrieta (2000) 84 Cal.App.4th 605, 614.) There is nothing contextually that would suggest that the word “may” in section 1172.75, subdivision (d)(3), is anything more than permissive. On the other hand, these positive factors are arguably part of the trial court’s consideration of defendant’s background, character, and prospects as set forth in Williams. However, defendant erroneously treats them as a checklist where he is entitled to relief so long as he shows a certain number of them to be true. But that is not how the trial court’s discretion on a Romero motion is applied. Instead, the court must consider if, in light of all of the Williams factors, defendant falls outside the spirit of the Three Strikes law. Our Supreme Court has noted that “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.’ ” (Carmony, supra, 33 Cal.4th at p. 378.) The trial court here properly gave defendant’s criminal history the most weight in assessing whether he fell outside the spirit of the Three Strikes law. Defendant had a long criminal history prior to the present conviction. As summarized by the People in its opposition to defendant’s Romero motion, over approximately 21 years defendant “sustained 11 felony and misdemeanor convictions ranging from theft crimes to more serious and violent crimes,” and he “has been sentenced to prison 5 separate times with 7 separate prison parole violations.” As noted in the mental health evaluation report that defendant submitted to the trial court, his prior strikes were for “almost identical 11 charges.”5 On these facts, we cannot say that the trial court’s denial of his Romero motion was arbitrary or irrational. Defendant also argues that section 1172.75, subdivision (d)(1), requires that resentencing “shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement,” and that failure to apply this portion of the statute is a violation of his federal due process rights. However, the “repealed enhancement” in the subdivision references the section 667.5 prior prison enhancements, which the trial court did strike and resulted in a reduction of defendant’s sentence by two years. The trial court also exercised its discretion to strike the five year section 667 enhancement. Defendant’s sentence was therefore reduced from 32 years to life to 25 years to life and he received the intended benefits of section 1172.75. (People v. Dowdy (2024) 107 Cal.App.5th 1, 13 [the defendant “received a lesser sentence, because he was originally sentenced to 32 years to life but was resentenced to 25 years to life”].) We find no violation of defendant’s due process rights. 5 Neither party went into significantly greater detail regarding the strike priors in their briefs submitted to the trial court or in their briefs on appeal. 12  DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS. MILLER J. We concur: RAMIREZ P. J. LEE J. 13