The opinion
Filed 7/16/25 P. v. James 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C099482
Plaintiff and Respondent, (Super. Ct. No. 21FE003105)
v.
RUSSELL JAMES,
Defendant and Appellant.
A jury convicted defendant Russell James of robbery, two counts of attempted
armed robbery, two counts of assault with a semiautomatic firearm, unlawful firearm
possession, and resisting a peace officer. The jury also found true various firearm
enhancements. After finding true that James had two prior strikes under the Three
Strikes law and prior serious felony convictions, the trial court sentenced him to an
aggregate prison term of 74 years, plus 75 years to life.
1
On appeal, James contends that his trial counsel provided ineffective assistance by
failing to timely request mental health diversion. He also argues that his convictions for
assault with a semiautomatic firearm were not supported by substantial evidence. He
further claims that the trial court abused its discretion in declining to dismiss the firearm
and prior serious felony enhancements. We reject James’s claims of ineffective
assistance and insufficient evidence but conclude that remand for resentencing is
required.
BACKGROUND
An amended information charged James with one count of robbery (Pen. Code,
§ 211; count one), two counts of attempted robbery (§§ 211, 664; counts two and four),
two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts three and
five), one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1);
count six), and one count of misdemeanor resisting a peace officer (§ 148, subd. (a)(1);
count seven).1 As to the robbery and attempted robbery charges, the People further
alleged that James personally used a firearm (§ 12022.53, subd. (b)) and, as to the assault
charges, that James used a semiautomatic firearm (§ 12022.5, subds. (a) & (d)). The
People additionally alleged that James had suffered prior strike convictions (§§ 667,
subds. (b)-(i), 1170.12) and that these were prior serious felony convictions (§ 667,
subd. (a)). Multiple aggravating circumstances were also alleged.
The first five counts in the information arose from a string of three robberies or
attempted robberies committed within a short distance of each other over a two-week
period in October 2020. Each incident was captured on video surveillance cameras, and
the surveillance footage of each incident was played for the jury at trial.
1 Undesignated statutory references are to the Penal Code.
2
The first incident (alleged as count one) was the robbery of a convenience store
around 9:00 p.m. on October 3, 2020. According to testimony and video surveillance
footage introduced at trial, a man slowly walked up to the entrance of the store, nodded to
the store clerk working at the front counter, took a beverage from a refrigerator, and
walked back to the front counter. The clerk was counting out cash from the register,
preparing to transfer it to the safe. The man walked up to the front counter, drew a
handgun from his pocket, and pointed it straight out in front of him at the clerk, who was
still handling the cash. The man demanded that the clerk give him the money. The clerk
complied, handing over $219. When the man demanded more, the clerk told him he did
not have any. When asked whether he saw the man present in the courtroom, the clerk
said he did not. The clerk also testified that he did not know the difference between a
semiautomatic handgun and a revolver, but he described the gun used in the robbery as
black with a red laser light coming out of the front.
When shown an image of the gun used in this robbery during a postarrest
interview months later, James identified the gun as a .380-caliber “Taurus” firearm,
without prompting. The lead detective for the case also gave his own description of the
gun. When shown a close-up image of the man pointing the firearm at the store clerk, the
detective testified that the pictured gun appeared black, with some chrome or lighter
coloring on the slide barrel and an attachment that appeared to be a laser. The detective
also testified that the gun pictured in the surveillance footage looked identical to a gun
shown in a photo that investigators had discovered on a social media account in James’s
name. The social media photo showed a black handgun resting on a pile of cash
alongside other items on a table. The detective described the handgun in the social media
photo as “unique” based on its subcompact size and its laser attachment on the trigger
guard. He testified that the gun in the social media photo was the “style of firearm [that]
was observed in video surveillance and described by victims as what the suspect had.”
3
In the next incident (alleged as counts two and three), a man was assaulted at
gunpoint on October 11, 2020, outside of a grocery store located less than a mile away
from the convenience store robbed the week before. At about 6:00 p.m. that day, D.K.
and his wife drove up to the grocery store in his convertible and parked a few spaces
away from the front entrance. D.K.’s wife went into the store to shop while D.K. stayed
seated in the driver’s seat of the parked car. The convertible’s top was down, and he was
looking at his phone when he felt a bump on his shoulder and heard someone say
something like, “Give me the money, man.” D.K. looked up and saw a man standing by
the driver’s side door, displaying a gun held in his right hand, near his crotch. The man
held the gun “[j]ust a few inches” from D.K., pointing it toward him at various times.
The man kept repeating his demand for money, and D.K. put his hands up and explained
that he did not have his wallet with him and did not have any money. The man punched
D.K. in the face, knocking off his glasses. D.K. was not sure if he was hit with a fist or
with the gun but testified that it felt like a fist. A store employee appeared nearby, and
the assailant ran away. At trial, D.K. identified James as the assailant.
Regarding the gun used in the incident, D.K. testified that it “pretty clearly[]
seemed to be a semiautomatic” handgun, given its “squarish” shape and lack of a
cylinder. In answer to a question by the prosecutor, D.K. explained that a revolver would
be more like a “cowboy gun,” whereas a semiautomatic gun would be the type that a
police officer or member of the military carries, and the gun used against him was more
like the latter. He further testified that the gun looked “exactly like” the one pictured in
People’s Exhibit 9 and looked “the same” as the one pictured in People’s Exhibit 10.
People’s Exhibits 9 and 10 were pictures of a firearm that police recovered during
James’s eventual apprehension. That gun, which was produced at trial and admitted into
evidence, was identified by two detectives as a .380-caliber Taurus firearm with a
crimson trace laser on the trigger guard.
4
The third incident (alleged as counts four and five) occurred on October 15, 2020,
less than a week after the assault of D.K., outside of a pizza shop located within one mile
of the previous incidents. That evening, after dark, M.H. and a friend drove to the shop
to pick up a pizza they had ordered. They parked in the parking lot, and the friend went
inside, while M.H. remained in the car’s front passenger seat, looking at her phone.
Suddenly, the passenger side door was “ripped open” by a man who “put a gun in [her]
face” and told her to give him everything she had and not to scream. When M.H. told the
man that she did not have anything, he hit her in the lip, causing it to bleed. M.H. used a
downward “chopping motion” to demonstrate how the man struck her, and she testified
that he hit her with the gun or at least with the same hand that was holding the gun. M.H.
told the man that someone was coming around the corner, and he immediately walked
away.
M.H. testified that the man held the gun “very close” to her, less than a foot away,
with the barrel facing her head. M.H. recalled that the gun “kind of looked like a .22”; it
was very small, “all black,” and had a red laser that kept shining on her. M.H. stated that
she did not know the difference between a revolver and a semiautomatic handgun. The
prosecutor showed her People’s Exhibit 10, the photograph of the Taurus firearm
recovered during James’s apprehension, and asked whether she recognized it in any way.
M.H. responded, “I don’t think so. I think it was more black.” M.H. identified James as
the assailant.
The police were called shortly after each of these three incidents, and they decided
to investigate all three together based on their nearby locations and the similarity of the
modus operandi, suspect descriptions, and the firearm that was used. The lead detective
testified that, based on the video surveillance and victim statements, the suspect appeared
to be wearing the “same type of clothing, using the same type of firearm, and executing
his crime in the same manner.” Law enforcement created crime bulletins using still
5
images from the surveillance footage, and after some initial investigation, the case went
cold.
A few months later, in February 2021, the police received an anonymous tip
identifying James as a possible suspect. Detectives found James’s record in law
enforcement databases, as well as a public social media account in his name. They
believed the photos of James in the databases and on the social media account matched
the suspect’s physical appearance based on the video surveillance.
The same day the anonymous tip came in, law enforcement followed James into a
supermarket, and a brief chase ensued. As a detective turned down a store aisle, he saw
James reaching his arm toward the back of a shelf as though he were trying to hide or
discard an item. At the same time, the detective heard the sound of metal against metal,
coming from the area of James’s extended hand. After James was arrested, the detective
searched the shelves and found the firearm that was later identified at trial as the Taurus
firearm.
Both the apprehending detective and the lead detective described the gun as
“unique.” The apprehending detective had seen only one or two like it out of the
hundreds of firearms he had observed over 16 years.
Another detective demonstrated for the jury how the red laser light on the firearm
activated with slight pressure on the button. The detective testified that it was a
semiautomatic handgun and that the magazine was what made it semiautomatic. The
detective contrasted the handgun with a single-action revolver, which would have a
cylinder instead of a magazine and the hammer would have to be pulled back before each
shot.
In August 2022, the jury convicted James on all counts and found true each of the
firearm enhancements.
6
James waived his right to a jury trial on the aggravating circumstances and prior
convictions. For reasons not fully disclosed by the record, the court trial on the
aggravating factors and prior convictions and sentencing were not held until July 2023.
At that hearing, the trial court found the aggravating factors and prior convictions
true, declined James’s requests to dismiss the enhancements and prior strike convictions,
and sentenced him to an aggregate prison term of 74 years, plus 75 years to life.
James timely appealed.
DISCUSSION
I.
We first address James’s contention that his trial counsel provided ineffective
assistance by failing to timely request mental health diversion under section 1001.36.
A.
In May 2023, about nine months after the jury returned its guilty verdicts, James’s
counsel filed an application for mental health diversion under section 1001.36 along with
a sentencing memorandum and a motion to strike James’s prior strikes under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497. In the application for diversion, counsel
asserted that James suffered from “Unspecified Schizophrenia and Other Psychotic
Disorder and substance abuse disorder,” both of which “can be addressed with various
treatment modalities, including both pharmaceuticals and psychotherapy.” Counsel also
separately filed (under seal) a copy of a March 2023 letter from a licensed psychologist
who had interviewed James by telephone in February 2023 for an unrelated civil matter.
The letter conveyed that James had grown up in “an extremely high stress and neglectful
environment” due to parental drug abuse, that he had been sexually molested at a youth
camp, and that he exhibited behaviors and symptoms consistent with childhood sexual
abuse and “with a diagnosis of Posttraumatic Stress Disorder” (PTSD). The psychologist
described James’s high stress childhood as having “negatively affected the development
of his brain’s ability to respond to any high stress and common, everyday stress
7
situations.” She further described the trauma from James’s childhood sexual abuse as
having “intensified the effects of his already damaged ability to respond to any form of
stress.”
About two weeks after James’s counsel filed the diversion request, the California
Supreme Court decided People v. Braden (2023) 14 Cal.5th 791, in which it resolved a
conflict among the Courts of Appeal regarding when in a criminal proceeding a
defendant could move for mental health diversion. Braden disagreed with courts that had
held that defendants could seek mental health diversion up until the return of the verdict
or until sentencing and entry of judgment. (Id. at pp. 800-801, 808, 819.) The state high
court concluded instead that a diversion request had to be made “before the process of
adjudicating the charges begins, i.e., before jeopardy attaches at trial or the defendant
enters a plea of guilty or no contest, whichever occurs first.” (Id. at p. 805.) “[J]eopardy
attaches when a defendant is placed on trial in a court of competent jurisdiction, on a
valid accusatory pleading, before a jury duly impaneled and sworn.” (Curry v. Superior
Court (1970) 2 Cal.3d 707, 712.)
At the July 2023 sentencing hearing, James’s counsel acknowledged that, as the
People had argued in their opposition to James’s diversion request, mental health
diversion was “no longer an option” in light of Braden. Counsel instead orally moved for
a new trial based on ineffective assistance of counsel so that the case could be returned to
“square one” and James could timely request mental health diversion. Counsel asserted
that “now that the law has changed, [that] is something that I should have done before.”
The trial court denied the motion for a new trial. The court stated, “I think to the
extent there would have been a request for pretrial diversion on the part of the Defendant,
I do not believe the Defendant would have been granted such pretrial mental health
diversion given his record and given the current offenses and for the reasons stated by the
People in their written brief.” The court further explained that, to the extent any
diversion request would have been successful, the court did not view a motion for a new
8
trial based on ineffective assistance as the appropriate remedy, observing that there may
be other remedies, such as appellate relief, for any demonstrated ineffective assistance of
counsel.
B.
To prevail on a constitutional claim of ineffective assistance of counsel, a
defendant must show “ ‘that counsel’s performance was deficient, and that the defendant
was prejudiced, that is, there is a reasonable probability the outcome would have been
different were it not for the deficient performance.’ ” (People v. Woodruff (2018)
5 Cal.5th 697, 736; see generally Strickland v. Washington (1984) 466 U.S. 668, 687.)
“A ‘reasonable probability’ is one that is enough to undermine confidence in the
outcome.” (People v. Dennis (1998) 17 Cal.4th 468, 541.) A defendant “ ‘must carry his
burden of proving prejudice as a “demonstrable reality,” not simply speculation as to the
effect of the errors or omissions of counsel.’ ” (People v. Montoya (2007)
149 Cal.App.4th 1139, 1147, quoting People v. Williams (1988) 44 Cal.3d 883, 937.)
“[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
. . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”
(Strickland, at p. 697.)
James argues that his counsel performed deficiently by failing to seek mental
health diversion before trial and that there is a reasonable probability that the trial court
would have granted a timely diversion application. We conclude that, even if counsel
performed deficiently, James has not demonstrated a reasonable probability that he would
have been granted mental health diversion if counsel had made the request before trial
began.
As an initial matter, we assess prejudice based on the version of section 1001.36
that was in effect throughout the period from October 2021 when counsel began
9
representing James through August 2022 when trial started—the last time at which an
application for pretrial diversion would have been timely and the period in which James
argues counsel performed ineffectively.2 During that period, a defendant was eligible for
diversion if six criteria were satisfied: (1) the defendant suffered from a qualifying
mental disorder; (2) the disorder was a “significant factor in the commission of the
charged offense”; (3) a mental health expert had opined that the defendant’s symptoms
would respond to treatment; (4) the defendant consented to diversion and waived the
right to a speedy trial; (5) the defendant agreed to comply with treatment as a condition of
diversion; and (6) “the defendant [would] not pose an unreasonable risk of danger to
public safety, as defined in Section 1170.18, if treated in the community.” (Former
§ 1001.36, subd. (b)(1)(A)-(F).)
The record supports that James would likely have shown that he satisfied the first
criterion: that he suffered from a qualifying mental disorder. (See former § 1001.36,
subd. (b)(1)(A).) Although the trial court did not make a finding that James had a mental
disorder, it is reasonably probable the court would have been satisfied by the
psychologist’s letter stating that his behaviors and symptoms were consistent with a
diagnosis of PTSD, which was (and is) one of the mental disorders the statute expressly
included as a qualifying diagnosis. (Ibid.; see current § 1001.36, subd. (b)(1).)
James has not shown on this record, however, that he would have been able to
satisfy at least two other requirements of the diversion statute then in effect: that his
qualifying mental disorder was a “significant factor in the commission of the charged
2 Although there were two versions of the statute in effect during this period, we refer to
both collectively as the former version, given that they were identical in all respects
relevant here. (Stats. 2019, ch. 497, § 203 [eff. Jan. 1, 2020 through June 29, 2022];
Stats. 2022, ch. 47, § 38 [eff. June 30, 2022 through Dec. 31, 2022].) The amendment
effective June 30, 2022 only added an exception to one of the eligibility criteria not
discussed here (former § 1001.36, subd. (b)(1)(E), as amended by Stats. 2022, ch. 47,
§ 38).
10
offense” and that he would not “pose an unreasonable risk of danger to public safety.”
(Former § 1001.36, subd. (b)(1)(B) & (F).) With respect to the first, the former version
of section 1001.36 permitted a trial court to find this criterion satisfied if, “after
reviewing any relevant and credible evidence, including, but not limited to, police
reports, preliminary hearing transcripts, witness statements, statements by the defendant’s
mental health treatment provider, medical records, records or reports by qualified medical
experts, or evidence that the defendant displayed symptoms consistent with the relevant
mental disorder at or near the time of the offense,” the court could conclude that the
defendant’s mental disorder “substantially contributed” to his involvement in the charged
offenses. (Former § 1001.36, subd. (b)(1)(B).) We conclude that James has not made
such a showing because the record in this case lacks evidence that a mental health issue
substantially contributed to the offenses. At the preliminary hearing, law enforcement
officials described for each incident the suspect’s conduct as reported by witnesses and as
shown in the surveillance video footage. There was no mention of the suspect behaving
erratically either before or after drawing his gun on each victim. Indeed, according to
one officer’s description, just before robbing the convenience store, the suspect “casually
waved” at the store clerk and browsed around the store. The only record evidence of
James’s symptoms—the psychologist’s letter—primarily emphasized James’s inability to
respond to stressful situations or to modulate his emotions and behaviors. None of the
evidence regarding the charged felony offenses suggests that they stemmed from a
stressful situation or encounter that prompted James to assault the victims and demand
their property. Further, in an interview with a probation officer, James expressed that he
had been under the influence of drugs and that the attacks were “ ‘mindless acts of
violence to feed [his] hunger and drug addiction.’ ”
James argues that, under the rule of In re Estrada (1965) 63 Cal.2d 740, we should
apply the current version of the statute, which contains a rebuttable presumption—first
added in January 2023 (Stats. 2022, ch. 735, § 1)—that a defendant’s mental illness
11
contributed to the offense. (§ 1001.36, subd. (b)(2).) He maintains that because this case
is non-final, we must presume that his mental health issues contributed to the charged
offenses. We disagree because the question here is not the retroactive application of
revisions to the statute but whether, under Strickland, he can show a reasonable
probability that he would have been granted diversion under the statute as it stood before
his trial in 2022.
The record also fails to support James’s contention that he could have established
that he would not pose “an unreasonable risk of danger to public safety” if treated in the
community. (Former § 1001.36, subd. (b)(1)(F).) Former section 1001.36,
subdivision (b)(1)(F), like the current version of the statute (§ 1001.36, subd. (c)(4)),
provides that “unreasonable risk of danger to public safety” carries the same definition
used in section 1170.18, which defines the phrase as “an unreasonable risk that the
[defendant] will commit a new violent felony within the meaning of clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.” (§ 1170.18,
subd. (c).) The so-called “super strikes” listed in that portion of section 667 are “murder,
attempted murder, solicitation to commit murder, assault with a machine gun on a police
officer, possession of a weapon of mass destruction, any serious or violent felony
punishable by death or life imprisonment, or any sexually violent offenses or sexual
offense committed against minors under the age of 14.” (People v. Whitmill (2022)
86 Cal.App.5th 1138, 1150-1151; see § 667, subd. (e)(2)(C)(iv).) In determining whether
a defendant poses an unreasonable risk of committing a super strike as defined in the
statute, a trial court may “consider any factors it deems appropriate when assessing
dangerousness, and [section 1001.36] expressly includes ‘the defendant’s violence and
criminal history’ and ‘the current charged offense’ among the permissible factors.”
(People v. Graham (2024) 102 Cal.App.5th 787, 799; see former § 1001.36,
subd. (b)(1)(F).)
12
Courts of Appeal have affirmed findings of dangerousness under section 1170.18
“where the petitioners had long criminal histories involving violent felonies.” (People v.
Moine (2021) 62 Cal.App.5th 440, 451.) That is the situation here. After decades of
criminal offenses, including prior armed robberies, James demanded money at gunpoint
from three victims and physically struck two of them in the face. In denying James’s
motion for a new trial, the trial court observed that it did not believe it would have
granted James pretrial diversion specifically because of “his record and given the current
offenses.” Indeed, it is difficult to imagine this trial court, which repeatedly emphasized
its concern with James’s present dangerousness, finding that someone who had tried to
rob several people at gunpoint after a long history of similar offenses would not be likely
to commit a super strike such as attempted murder under similar circumstances if treated
in the community. (See People v. Hall (2016) 247 Cal.App.4th 1255, 1266 [reasonable
to infer the defendant posed a risk of “using deadly force” where his history of felony
convictions spanned nearly two decades, including two prior robbery convictions, and he
had pressed a knife to the victim’s stomach in the most recent offense].)
James argues that, under People v. Frahs (2020) 9 Cal.5th 618, 638, “the appellate
record need not definitively satisfy each of the eligibility factors to merit remand for
reconsideration of diversion.” In Frahs, the state Supreme Court held that
section 1001.36 was an ameliorative statute that applies retroactively to cases in which
the judgment was not yet final on appeal when the statute took effect. (Frahs, at p. 624;
see People v. Braden, supra, 14 Cal.5th at p. 801.) The Frahs court concluded that a
conditional limited remand is warranted when “the record affirmatively discloses that the
defendant appears to meet at least the first threshold eligibility requirement for mental
health diversion—the defendant suffers from a qualifying mental disorder (§ 1001.36,
subd. (b)(1)(A)).” (Frahs, at p. 640.) The court reasoned that requiring a defendant to
demonstrate satisfaction of all eligibility requirements would be “unduly onerous and
impractical” when the record on appeal was “unlikely to include information pertaining
13
to several eligibility factors” for a defendant who “was tried and convicted before
section 1001.36 became effective.” (Id. at p. 638.)
The reasons behind the rule announced in Frahs are not present here. Because
section 1001.36 was in effect throughout James’s criminal proceedings in the trial court,
this is not a case about retroactivity. And the standards for obtaining relief on a claim of
ineffective assistance of counsel are different from those that apply in the retroactivity
posture of Frahs. (See People v. Doron (2023) 95 Cal.App.5th 1, 10 [retroactive remand
standard].) As noted above, to prevail on an ineffective assistance claim, a defendant
must show prejudice “ ‘as a “demonstrable reality,” not simply speculation as to the
effect of the errors or omissions of counsel.’ ” (People v. Montoya, supra,
149 Cal.App.4th at p. 1147.) And we must “analyze prejudice based on the record.”
(People v. Banner (2022) 77 Cal.App.5th 226, 237; see id. at p. 239 [“We must rest our
analysis not on a hypothesis but on evidence in the record”].) To demonstrate prejudice
from counsel’s asserted ineffectiveness in failing to seek mental health diversion before
trial, when such diversion was available and when counsel did seek diversion posttrial,
James must show a reasonable probability that he would have been found to have
satisfied all of the statutory criteria for mental health diversion as they existed before his
trial. For the above reasons, he has failed to do so. We therefore reject his ineffective
assistance of counsel claim. (See id. at p. 239 [rejecting ineffective assistance claim
where the defendant could not prove prejudice because he could not prove the trial court
would have found him eligible for diversion].)
II.
James additionally contends that insufficient evidence supported his two
convictions for assault with a semiautomatic firearm under section 245, subdivision (b):
the assault of D.K. charged in count three and the assault of M.H. charged in count five.
Section 245, subdivision (b) proscribes the commission of “an assault upon the
person of another with a semiautomatic firearm.” “An assault is an unlawful attempt,
14
coupled with a present ability, to commit a violent injury on the person of another.”
(§ 240.) “[I]n other words, it is an attempt to commit a battery.” (People v. Rocha
(1971) 3 Cal.3d 893, 899.) As to mental state, assault “only requires an intentional act
and actual knowledge of those facts sufficient to establish that the act by its nature will
probably and directly result in the application of physical force against another.”
(People v. Williams (2001) 26 Cal.4th 779, 790.) The defendant “must not only intend to
commit a battery [citation]; he must also have the present ability to do so.” (People v.
Wolcott (1983) 34 Cal.3d 92, 99.) The present ability element of assault “is satisfied
when ‘a defendant has attained the means and location to strike immediately,’ ” meaning
“on the given occasion.” (People v. Chance (2008) 44 Cal.4th 1164, 1168, 1172; see also
People v. Valdez (1985) 175 Cal.App.3d 103, 112 [“to be guilty of assault a defendant
must have maneuvered himself into such a location and equipped himself with sufficient
means that he appears to be able to strike immediately at his intended victim”].)
“When a defendant challenges the sufficiency of the evidence for a jury finding,
we review the entire record in the light most favorable to the judgment of the trial court.
We evaluate whether substantial evidence, defined as reasonable and credible evidence of
solid value, has been disclosed, permitting the trier of fact to find guilt beyond a
reasonable doubt.” (People v. Vargas (2020) 9 Cal.5th 793, 820.) We “ ‘presume[] in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.’ ” (People v. Edwards (2013) 57 Cal.4th 658, 715.) “ ‘A reviewing
court neither reweighs [the] evidence nor reevaluates a witness’s credibility.’ [Citation.]
Reversal is not warranted ‘unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction.]” ’ ” (People v. Thomas (2023)
14 Cal.5th 327, 378.) “If the circumstances reasonably justify the findings made by the
trier of fact, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.” (People v. Jennings (2010)
50 Cal.4th 616, 639.)
15
A.
In challenging the sufficiency of the evidence that he committed assault upon D.K.
and M.H., James argues that his convictions should be overturned because the evidence
showed that he displayed and pointed a firearm at the victims, not that he struck either
victim with the gun or that the firearm was capable of discharging at the time. We reject
this claim because the record discloses abundant evidence that, in each encounter, James
had attained the means and location to inflict violent injury upon the victims by using his
gun as a club or bludgeon. (§ 240; People v. Chance, supra, 44 Cal.4th at p. 1168.)
As this court has previously held, “[a] person may commit an assault under
[section 245, subdivision (b)] by using the gun as a club or bludgeon, regardless of
whether he could also have fired it in a semiautomatic manner at that moment.”
(People v. Miceli (2002) 104 Cal.App.4th 256, 270.) Numerous cases recognize this
principle. (People v. Chance, supra, 44 Cal.4th at p. 1172, fn. 7 [referencing “the rule
that assault cannot be committed with an unloaded gun, unless the weapon is used as a
bludgeon” (italics added)]; People v. Webb (2023) 90 Cal.App.5th 660, 666 [“There can
be no present ability to commit an assault with an unloaded gun (unless it is used as a
club or bludgeon)” (second italics added)]; People v. Mosqueda (1970) 5 Cal.App.3d
540, 544 [“if a person points an unloaded gun at another, without any intent or threat to
use it as a club or bludgeon,” he does not commit assault under § 240 (italics added)].)
And our Supreme Court has found substantial evidence to support a conviction for assault
with a deadly weapon where the defendant struck two victims with a gun and
“approached sufficiently near [another] to have the present ability to injure [him] in the
same manner.” (People v. Fain (1983) 34 Cal.3d 350, 357, fn. 6.)
Here, in his attempt to rob D.K. outside the grocery store, the video surveillance
showed that James stood right beside D.K., leaning over the door of the convertible with
D.K. still seated. James held his gun just “a few inches” from D.K. and punched him in
the face. Although D.K. testified that it felt like James struck him with his fist, that was
16
sufficient evidence that James was positioned to have done the same with the gun. (See
People v. Chance, supra, 44 Cal.4th at p. 1168.) James argues that simply holding the
weapon, without an attempt or threat to use it to strike D.K., is not enough, citing
People v. Rodriguez (1999) 20 Cal.4th 1 at page 11, footnote 3 for the proposition that
assault is not established just because a weapon “could be used as a bludgeon.” That
footnote cites a “long line of California decisions hold[ing] that an assault is not
committed by a person’s merely pointing an (unloaded) gun in a threatening manner at
another person.” (Ibid.) But that line of cases deals with scenarios where the defendant
is pointing a gun at someone beyond his arm’s reach. (See People v. Fain, supra,
34 Cal.3d at p. 356 [pointed gun from distance of about five feet]; People v. Sylva (1904)
143 Cal. 62, 63 [distance of over 15 feet]; People v. Lee Kong (1892) 95 Cal. 666, 669
[under our assault statute, “it cannot be said that a person with an unloaded gun would
have the present ability to inflict an injury upon another many yards distant”]; People v.
Valdez, supra, 175 Cal.App.3d at p. 109 [pointed gun at victim behind bulletproof
glass].) In contrast here, there was credible evidence that James pointed a gun at D.K.
from inches away, showing that he had attained the means and location to strike
immediately. (Chance, at p. 1168.)
The same is true of James’s encounter with M.H. M.H. testified that James “put
[the] gun in [her] face,” less than a foot away. She further testified that James hit her
with the gun or at least with the same hand that was holding the gun. This was sufficient
evidence for the jury to conclude that, at a minimum, James had attained the means and
location to use the gun as a bludgeon against her. (People v. Chance, supra, 44 Cal.4th at
p. 1168.)
Furthermore, there was sufficient evidence that James committed these assaults
using his gun as a firearm. Notwithstanding James’s correct observation that there was
no affirmative evidence that the firearm was “capable of discharging” during either
incident, James’s words and conduct during both encounters allowed the jury to infer that
17
the gun was loaded and operable. (See People v. Rodriguez, supra, 20 Cal.4th at p. 13
[“A defendant’s own words and conduct in the course of an offense may support a
rational fact finder’s determination that he used a loaded weapon”].) During each
confrontation, James pointed his gun at the victim at close range, while repeatedly
demanding their money or belongings. On these facts, the jury could reasonably
determine that the gun was capable of firing. It could also “reasonably infer from the fact
that [James] aimed his gun and demanded compliance with his instructions that he had
the requisite intent to use the gun if the victims failed to comply.” (People v. Fain,
supra, 34 Cal.3d at p. 356.)
B.
James additionally contends that there was insufficient evidence that the firearm
he used against M.H. was semiautomatic. The use of a semiautomatic firearm is, of
course, a necessary element of the offense of assault with a semiautomatic firearm (§ 245,
subd. (b)). (People v. Le (2015) 61 Cal.4th 416, 427; see People v. Hardy (2021)
65 Cal.App.5th 312, 331 [conditionally reversing § 245, subd. (b) conviction where only
evidence of firearm’s semiautomatic nature was improperly admitted].) In describing the
gun used against her, M.H. testified that it “kind of looked like a .22” and that it was very
small, “all black,” and had a red laser that kept shining on her. She stated that she did not
know the difference between a revolver and a semiautomatic handgun. And when asked
whether she recognized the gun shown in People’s Exhibit 10, which was a photo of the
gun recovered during James’s apprehension, she answered, “I don’t think so. I think it
was more black.” James argues that this equivocal testimony was not sufficient to
establish that the firearm used in the assault of M.H. was semiautomatic.3
3 For the first time in his reply brief, James briefly asserts that the evidence failed to
establish that the weapon used against either D.K. or M.H. was “capable of firing a
round, discharging the casing, and chambering a new round with a single trigger pull,”
citing the definition of a semiautomatic firearm that our Supreme Court gave in In re
18
We reject James’s claim because the trial evidence, taken as a whole, was
sufficient for the jury to conclude that James used the same semiautomatic firearm
against M.H. that he had used in the other two incidents over the previous two weeks and
that was recovered during his arrest some four months later. To begin with, there was
sufficient evidence that the gun that James used in the two incidents before the assault on
M.H. was a semiautomatic firearm. The gun used in the initial convenience store robbery
was clearly displayed on the video surveillance footage and was identified—by James
himself—as a .380-caliber Taurus that detectives explained is a semiautomatic handgun.
The convenience store clerk testified that the gun pointed at him emitted a red laser light,
as did the Taurus firearm during the courtroom demonstration. Although the clerk did
not identify James as his assailant, the social media photo of a “unique” gun identical to
the one used at the convenience store linked James to this incident, along with further
similarities between his appearance and the gunman’s. The gun used about one week
later in the attempted robbery of D.K. outside the grocery store could not be seen on
video surveillance footage, but D.K. testified that the gun used against him was
semiautomatic and looked “exactly like” the one pictured in People’s Exhibit 9—a
photograph of the firearm recovered during James’s apprehension, which detectives
likewise identified as a .380-caliber Taurus (a semiautomatic weapon, according to a
detective) with a laser guard attachment.
M.H.’s description of the gun used against her, though less definitive, was
consistent with that same firearm. She described the gun she saw as being “very small,”
Jorge M. (2000) 23 Cal.4th 866, 874, footnote 4. This contention is forfeited both for
failure to raise it in the opening brief and for failure to develop any argument that proof
of the use of a semiautomatic firearm requires specific, technical evidence of the
firearm’s mode of operation. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [issue
raised for first time in reply brief was forfeited]; In re Marriage of Falcone & Fyke
(2008) 164 Cal.App.4th 814, 830 [absence of cogent legal argument or citation to
authority forfeits contention].)
19
“all black,” and emitting a red laser. This matches the “subcompact” firearm with a laser
attachment on the trigger guard shown in the photo from James’s social media account,
shown in a photo from the surveillance footage from the convenience store robbery, and
shown in the photos of the firearm that D.K. testified looked exactly like the one used
against him outside the grocery store. The red color of the laser described by M.H. also
matched the red laser light emitted by the Taurus firearm, as demonstrated in the
courtroom. It is true, as James emphasizes, that M.H. testified that the gun she saw was
“more black” than the one pictured in People’s Exhibit 10, but, as the People argue, the
jury could reasonably discount this statement in light of the other similarities because the
assault occurred when it was dark out.
Further support for the identicality of the gun came from M.H.’s courtroom
identification of James as her assailant and the evidence that he had committed a nearly
identical attempted robbery just four days prior, using a gun that D.K. testified looked the
same as the “unique” Taurus firearm. As shown in the surveillance footage of both
incidents, the assailant was wearing a red hat with black lettering and a black brim, long
black shorts, and black shoes with red laces. Based on the footage and the victims’
testimony, the assailant’s conduct was also strikingly similar: waiting outside a business
in the same vicinity and identifying a vulnerable target seated alone in a car, approaching
them at close range with a gun, demanding they give him money, and then striking them
in the face when they did not comply, before leaving at the first sign that he had been
spotted. This evidence was sufficient to allow the jury to infer that James was the
assailant in both events and that the gun he wielded was the same Taurus firearm.
The jury could also reasonably infer that James possessed that same gun just
before his arrest four months later. Although there was no direct evidence that James was
seen with the Taurus on that date, the gun was recovered from the supermarket shelves
near where he was stopped and there was a contemporaneous clattering when the
arresting detective saw James’s hand extended into the shelves.
20
In sum, there was sufficient evidence for the jury to conclude that in all three
attacks the same individual (James) used the same unique semiautomatic firearm
recovered at the supermarket. Thus, there was sufficient evidence for the jury to find that
the firearm used against M.H. in the count five offense was semiautomatic.
III.
James also challenges his sentence, contending that the trial court abused its
discretion by failing to dismiss the firearm enhancements and prior serious felony
enhancements under section 1385, subdivision (c).
A.
At James’s sentencing hearing, the trial court made findings on the aggravating
and mitigating circumstances (James having waived a jury trial on the aggravating
factors). The court found true at least six of the aggravating factors that the People
alleged: that James was armed with or used a weapon during the offense (Cal. Rules of
Court, rule 4.421(a)(2)); that the crimes evinced planning, sophistication, or
professionalism (rule 4.421(a)(8)); that James had engaged in violent conduct that
indicates a serious danger to society (rule 4.421(b)(1)); that his prior convictions or
sustained juvenile delinquency petitions were numerous or increasingly serious
(rule 4.421(b)(2)); that he was on parole at the time the crimes were committed
(rule 4.421(b)(4)); and that his prior performance on probation or parole was
unsatisfactory (rule 4.421(b)(5)).4
The trial court also acknowledged three mitigating circumstances: that the
application of an enhancement could result in a sentence over 20 years
(rule 4.423(b)(10)), that multiple enhancements were alleged (rule 4.423(b)(11)), and that
an enhancement was based on a prior conviction over five years old (rule 4.423(b)(13)).
4 Undesignated rule references are to the California Rules of Court.
21
The court further found, based on a letter from James’s psychologist, that James
“experienced psychological, physical, or childhood trauma, including but not limited to
abuse, neglect, exploitation, or sexual violence,” as provided in rule 4.423(b)(3). But the
court observed that the letter did not conclude that these were factors in the commission
of the crime as required by that rule.
The trial court next denied James’s Romero motion to dismiss his prior strike
convictions, which were both for second degree robbery. The court explained that, in
exercising its discretion, it was required to consider James’s criminal history and the
nature of his offenses, as well as his background, character, and prospects. The court
found that James had an extensive criminal record, consisting of numerous juvenile
adjudications and felony convictions. The prior convictions included a robbery in which
he pressed a firearm to a victim’s head and another where he used a semiautomatic
weapon to demand money at a gas station. Since the first robbery 22 years before, James
had been out of custody for only about four years. The court noted the actual or
threatened violence displayed in James’s present offenses and found that he posed “a
distinct, clear, and present danger to the public.” As for his background, character, and
prospects, the court found that James was 46 years old and that middle age was not a
mitigating factor; it also found that James’s involvement in three “major incidents” while
in jail reflected his “character for violence and his propensity to commit serious crimes.”
The court again acknowledged James’s childhood trauma and “psychological challenges”
but found that they did not outweigh the previously identified factors. Based on these
considerations, the court determined that James did not fall outside the spirit or purpose
of the Three Strikes law.
The trial court then addressed its discretion to dismiss or impose lesser terms on
the firearm enhancements found true under sections 12022.5, subdivision (a) and
12022.53, subdivision (b). Citing People v. Rocha (2019) 32 Cal.App.5th 352 and
People v. Orabuena (2004) 116 Cal.App.4th 84, the court stated that, in considering
22
whether to strike the enhancements, it had to consider James’s rights, the interest of
society, the nature and circumstances of the current offenses, James’s criminal record,
and his background, character, and prospects. Addressing these considerations, the court
found that it would be “contrary to the interest of justice” to dismiss the firearm
enhancements in their entirety, reasoning that “any mitigating factors do not outweigh the
Defendant’s violent conduct.” For the same reasons, the court also found that it would
not be in the interest of justice to impose a lesser firearm enhancement under
section 12022.53, subdivision (b) or to impose a low term for the firearm enhancement
under section 12022.5, subdivision (a), again emphasizing “the nature of the crimes and
the aggravating factors.”
Finally, the trial court addressed its discretion to dismiss the section 667,
subdivision (a) prior serious felony enhancements in whole or in part. The court recited
the text of section 1385, subdivision (c)(1) and (2) and acknowledged three “possible”
mitigating circumstances. First, the court noted that section 1385, subdivision (c)(2)(H)
directs a sentencing court to strike an enhancement that is based on a prior conviction that
is over five years old; and it found that both of James’s prior convictions underlying the
section 667, subdivision (a) enhancements were more than five years old. Second, the
court noted that under section 1385, subdivision (c)(2)(B), where multiple enhancements
are alleged in a single case, all but one enhancement shall be dismissed. Finally, the
court observed that, while section 1385, subdivision (c)(2)(C) provides for the dismissal
of an enhancement if its application could result in a sentence of over 20 years, here, it
was the indeterminate sentences under the Three Strikes law—not any enhancement—
that caused the sentence to exceed 20 years. Thus, that mitigating circumstance did not
apply.
The trial court explained that, under section 1385, subdivision (c), courts must
afford great weight to any of the applicable mitigating circumstances, which weigh
greatly in favor of dismissing the enhancement unless dismissal of the enhancement
23
would result in physical injury or serious danger to others. (See § 1385, subd. (c)(2).)
The court found that dismissal of the enhancements would endanger public safety in light
of James’s lengthy criminal history, noting that “despite several terms in state prison,
upon release into the community, he resumed his conduct against members of the
community by committing armed robberies, including the ones for which he was
convicted in this case.”
The trial court selected count six, the felony firearm possession, as the principal
term and imposed an aggregate term of 14 years for that count: the middle term of
two years, doubled due to the prior strikes, plus two five-year enhancements for both of
the prior serious felony convictions (§ 667, subd. (a)). For each of counts one, two, and
four (the robbery and attempted robbery offenses), the court imposed a sentence of
25 years to life, the indeterminate term required by the Three Strikes law (§ 667,
subd. (e)(2)(A)(ii)), plus consecutive terms of 20 years, which included 10 years for the
firearm enhancement (§ 12022.53, subd. (b)) and 10 years for the two five-year prior
serious felony enhancements (§ 667, subd. (a)). For both counts three and five (the
assault with a semiautomatic firearm offenses), the court imposed and stayed pursuant to
section 654 an aggregate term of 29 years to life, which included the upper term of
nine years, plus 10 years (the upper term) for the associated firearm enhancement
(§ 12022.5, subd. (a)), plus 10 years for the two five-year prior serious felony
enhancements (§ 667, subd. (a)). (See § 667, subd. (e)(2)(A)(iii).) And for count seven
(misdemeanor resisting arrest), the court imposed a term of 360 days in county jail to run
concurrent to count six. James’s aggregate prison sentence was 74 years, plus 75 years to
life in state prison.
The trial court recognized that it was “in effect imposing a sentence, which will
result in Mr. James spending the rest of his life in prison based upon the Court’s decision
today and by not granting any leniency when it had the discretion to do so.” But, the
court stated, James’s “track record indicates . . . that he is a present danger to society.
24
Throughout his adult life, he’s inflicted trauma upon his victims, and despite his prior
incarcerations, clearly lacks the insight and ability to reform or rehabilitate himself. To
be clear[,] the Court would decline to exercise its discretion to reduce the sentence even if
the Defendant were to be subject to any subsequently enacted legislation while this case
is on appeal.”
B.
Effective January 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 721, § 1) (Senate Bill 81) added subdivision (c) to section 1385. That provision states
that, except in situations not at issue here, a trial court “shall dismiss an enhancement if it
is in the furtherance of justice to do so.” (§ 1385, subd. (c)(1).) It further provides that,
in making this discretionary determination, “the court shall consider and afford great
weight to evidence offered by the defendant to prove that any of the mitigating
circumstances” listed in the statute are present. (§ 1385, subd. (c)(2).) As relevant here,
mitigating circumstances listed in section 1385, subdivision (c)(2) include that:
“(B) Multiple enhancements are alleged in a single case,” in which case, “all
enhancements beyond a single enhancement shall be dismissed”; “(C) The application of
an enhancement could result in a sentence of over 20 years”; “(E) The current offense is
connected to prior victimization or childhood trauma”; and “(H) The enhancement is
based on a prior conviction that is over five years old.” “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.”
(Ibid.) “ ‘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.” (Ibid.) In
People v. Walker (2024) 16 Cal.5th 1024, 1029, our Supreme Court explained, “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
25
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.’ ”
We review a trial court’s decision whether to strike or reduce an enhancement
under section 1385 for abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th
287, 298.) “ ‘ “[T]he burden is on the party attacking the sentence to clearly show that
the sentencing decision was irrational or arbitrary. [Citation.] 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.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) “The
court is presumed to have considered all of the relevant factors in the absence of an
affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
But “ ‘an abuse of discretion arises if the trial court based its decision on impermissible
factors . . . or on an incorrect legal standard.’ ” (People v. Gonzalez (2024)
103 Cal.App.5th 215, 225.)
James argues that the trial court abused its discretion in declining to dismiss, under
section 1385, subdivision (c), the firearm enhancements and the prior serious felony
enhancements. Specifically, he argues that the trial court failed to afford “great weight”
to the mitigating circumstances he believes should have applied under section 1385,
subdivision (c)(2)—namely, the presence of multiple enhancements, that an enhancement
could result in a sentence over 20 years, connection of the current offenses to prior
victimization or childhood trauma, and that an enhancement was based on a prior
conviction more than five years old. (§ 1385, subd. (c)(2)(B), (C), (E), (H).) He further
argues that the trial court applied an incorrect legal standard in determining his
dangerousness to public safety (§ 1385, subd. (c)(2)) by focusing on his present
dangerousness instead of his future dangerousness at the time of his release assuming the
enhancements were stricken.
26
As an initial matter, we agree with the trial court that the statutory mitigating
circumstance that “application of an enhancement could result in a sentence of over
20 years” (§ 1385, subd. (c)(2)(C)) did not apply. As the trial court explained, it was the
application of the indeterminate sentences—not the imposition of the enhancements—
that caused James’s sentence to exceed 20 years. James argues that this factor applies
“whenever the resulting sentence would be longer than 20 years, even if it is already so.”
This interpretation, however, is contrary to the plain text of the statute. A sentence of
over 20 years does not “result” from an enhancement when the sentence already exceeds
20 years without any enhancement. (Ibid.)
The trial court nevertheless abused its discretion by applying incorrect legal
standards in its consideration of the impact of the remaining mitigating circumstances on
both sets of enhancements. As described above, the court separately addressed the
question of dismissing the firearm enhancements and the question of dismissing the prior
serious felony enhancements. Beginning with the firearm enhancements, we find
affirmative record evidence that, in considering whether to dismiss those enhancements,
the trial court failed to apply the standard required by section 1385, subdivision (c) as
amended by Senate Bill 81. (See §§ 12022.5, subd. (c) [permitting dismissal of otherwise
required firearm enhancement “in the interest of justice pursuant to Section 1385”],
12022.53, subd. (h) [same].) As explained above, section 1385, subdivision (c) requires
that, absent a finding that dismissal would endanger public safety, courts must give great
weight to the enumerated mitigating circumstances, which will ordinarily result in
dismissal of an enhancement unless neutralized by countervailing factors. (§ 1385,
subd. (c)(2); People v. Walker, supra, 16 Cal.5th at p. 1029.) The trial court, however,
never mentioned that standard or the asserted section 1385, subdivision (c)(2) mitigating
circumstances when considering the firearm enhancements. Instead, it expressly cited
and relied on cases that predate Senate Bill 81; and its analysis focused entirely on the
traditional section 1385, subdivision (a) factors, such as the nature and circumstances of
27
the current crimes, James’s prior convictions, and his background, character, and
prospects. (People v. Orabuena, supra, 116 Cal.App.4th at p. 99.) While those factors
are relevant, a trial court must consider, and (absent a finding of danger to public safety)
give great weight to, the applicable mitigating circumstances set forth in section 1385,
subdivision (c)(2). Here, the court’s ruling on the firearm enhancements gave no
indication that it had done so—and indeed, the fact that the court opened its discussion of
the prior serious felony enhancements by extensively quoting the text of section 1385,
subdivision (c) affirmatively indicates that the court was introducing its discussion of
what it viewed as a new and separate framework for analyzing the prior serious felony
enhancements. But the same framework should have been applied when assessing the
firearm enhancements as well.
Regarding the prior serious felony enhancements, as explained above, the trial
court declined to dismiss those enhancements on the ground that doing so would
endanger public safety. Here, too, we conclude that the court applied an incorrect legal
standard in its analysis.
Initially, we reject the People’s contention that James forfeited this issue by failing
to assert the correct legal standard in the trial court. It is true that James’s trial counsel
did not offer the trial court any argument, either written or oral, on the proper legal
standard for assessing whether dismissal of the enhancements would endanger public
safety. He did, however, expressly request dismissal of the prior serious felony
enhancements under section 1385, subdivision (c), and the court addressed that request.
Given that ruling, and in light of James’s alternative contention that any failure by trial
counsel to make an adequate objection constituted ineffective assistance, we exercise our
discretion to consider the issue. (See People v. Williams (1998) 17 Cal.4th 148, 161,
fn. 6 [appellate courts may reach unpreserved questions]; People v. Monroe (2022)
85 Cal.App.5th 393, 400 [declining to find forfeiture to forestall ineffective assistance
claim].)
28
On the merits, the parties appear to agree that the trial court applied an erroneous
legal standard when concluding that dismissal of the prior serious felony enhancements
would “endanger public safety.” As explained in People v. Gonzalez, supra,
103 Cal.App.5th 215, which was decided after James’s sentencing, trial courts deciding
whether “dismissal of [an] enhancement would endanger public safety” (§ 1385,
subd. (c)(2)) must “consider the impact to public safety if the defendant was granted
sentencing relief” (Gonzalez, at p. 229). The plain text of the statute requires assessing
whether “dismissal of the enhancement would endanger public safety,” and whether
“there is a likelihood that the dismissal of the enhancement would result in physical
injury or other serious danger to others.” (§ 1385, subd. (c)(2), italics added.) “Although
the current dangerousness of the defendant is an appropriate factor to consider, as it will
have some bearing on whether dismissing the enhancement would endanger the public, a
crucial part of the inquiry is how the dismissal of the enhancement will impact the length
of the defendant’s sentence. A currently dangerous defendant who will be released from
prison within a short timeframe might be found by the trial court to pose a greater danger
to the public than a defendant who is currently dangerous but who has no prospect of
release from prison until he is elderly.” (Gonzalez, at p. 228.) This is a forward-looking
inquiry requiring the trial court to “consider, among other things, the date on which the
defendant would be released under the revised sentence, and, in the case of an
indeterminate sentence, the safety valve that exists due to the review by the Board of
Parole Hearings.” (Id. at p. 229.) Applying this standard, the Gonzalez court found that
the trial court abused its discretion by considering only whether the defendant currently
posed a danger to the public, instead of also considering that, if the firearm enhancement
at issue were dismissed, the defendant’s 50-years-to-life sentence for murder would mean
that he would not be released until far in the future, when he would be elderly, and his
release would be subject to review by the Board of Parole Hearings and the Governor.
(Id. at pp. 230-231.)
29
The reasoning of Gonzalez applies equally here, where the trial court was—
excluding any enhancements—sentencing James, then age 46, to an indeterminate term
of 75 years to life based on three consecutive third-strike sentences plus a four-year
determinate term, making him eligible for parole at age 125. The court did not consider
this fact, instead resting its analysis entirely on James’s criminal record and history of
armed robberies. While this criminal history and present dangerousness certainly were
relevant (People v. Gonzalez, supra, 103 Cal.App.5th at p. 228), the court erred in failing
to consider how dismissal of any of the enhancements would impact the length of
James’s sentence and his future dangerousness at the time of release.
The People do not attempt to defend the trial court’s analysis of the public safety
issue, instead urging that the error was harmless, obviating any need to remand for
resentencing. We are not persuaded.
“[W]hen a court has not exercised its informed discretion, remand is the default
‘unless the record “clearly indicate[s]” that the trial court would have reached the same
conclusion “even if it had been aware that it had such discretion.” ’ ” (People v. Salazar
(2023) 15 Cal.5th 416, 431, quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
“[U]nless there is a clear indication from the sentencing court that it would be idle to do
so, remand for resentencing is required.” (Salazar, at p. 431.)
The People argue that the trial court’s finding that it would not be in the interest of
justice to dismiss the firearm enhancements provides the necessary clear indication that it
also would have found that dismissing the prior serious felony enhancements would not
be “in the furtherance of justice” (§ 1385, subd. (c)(1)), even without finding a danger to
public safety. As we have explained, however, the court did not apply the necessary
section 1385, subdivision (c) framework to its analysis of the firearm enhancements.
Although, as the People argue, the rule 4.421 aggravating factors found true were more
numerous than the statutory mitigating factors the court identified in assessing the prior
serious felony enhancements, the court’s ruling nowhere indicates how it would decide
30
the issue if it gave the requisite “great weight” to the applicable mitigating factors.
(§ 1385, subd. (c)(2).)
In People v. Salazar, supra, 15 Cal.5th at page 431, our state high court made
clear that reliance on surrounding sentencing decisions, such as “declining to strike
enhancements, is not sufficient to provide a clear indication of what a sentencing court
might do on remand if it had been fully aware of the scope of its discretionary powers.”
In this case, the trial court’s decision not to strike any firearm enhancements, without
applying the correct legal standard, gives no indication of how it would rule on either the
firearm enhancements under the proper standard or the prior serious felony enhancements
without limiting the section 1385, subdivision (c)(2) inquiry to James’s current
dangerousness.
The People also assert that the trial court’s “decisions and remarks at the
sentencing hearing” show that remand would be futile. The People highlight the court’s
statement of its awareness that it was in effect imposing a life sentence “by not granting
any leniency when it had the discretion to do so,” as well as its concluding statement that,
“[t]o be clear[,] the Court would decline to exercise its discretion to reduce the sentence
even if the Defendant were to be subject to any subsequently enacted legislation while
this case is on appeal.” These comments give no indication of how the court would rule
if it had applied the correct legal standards. Remand for resentencing is therefore
required. (People v. Salazar, supra, 15 Cal.5th at p. 431.)
31
DISPOSITION
The sentence is vacated, and the case is remanded for resentencing consistent with
this opinion. The judgment is affirmed in all other respects.
/s/
FEINBERG, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
32