The opinion
Filed 10/15/25; On remand
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant,
A168286
v.
YACOB DAIN, (Sonoma County Super. Ct.
No. SCR-709053-1)
Defendant and Respondent.
In 2019 a jury found defendant Yacob Dain guilty of home invasion
robbery, kidnapping, assault with a firearm, and additional offenses, and the
trial court found true the allegations that he had two prior convictions for
active gang participation that qualified as strikes under the Three Strikes
law and as serious felony convictions under Penal Code section 667,
subdivision (a) (section 667(a)). Dain appealed, and we reversed the prior
conviction findings and remanded to permit the prosecution to retry the prior
conviction allegations under the current understanding of the gang
participation offense. (People v. Dain (Dec. 21, 2021, A157756) 2021 WL
6031474 [nonpub opn.] (Dain I).) On remand, the prosecution chose to retry
only one of the prior convictions, which was again found to be a strike and a
serious felony conviction. The trial court then granted defendant’s Romero1
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
1
motion to dismiss the prior strike conviction although the court had denied a
similar request when it originally sentenced defendant.
The People then appealed, contending the trial court abused its
discretion in dismissing the prior strike conviction for purposes of the Three
Strikes law. We issued an opinion in the People’s appeal,2 which our
Supreme Court reversed and remanded to us for further proceedings. (People
v. Dain (2025) 18 Cal.5th 246 (Dain II).) The Supreme Court did not review
“the merits of [our] determination that the trial court erred when it dismissed
Dain’s prior strike” (id. at p. 256), but it disagreed with our disposition, which
had been to direct the trial court to reinstate the strike finding.3
We now conclude as follows. The People are correct that the trial court
abused its discretion in dismissing the prior strike conviction, but the proper
remedy is remand to the trial court to exercise its discretion to rule on the
Romero motion.
The People also contend the trial court abused its discretion in
dismissing the five-year enhancement under section 667(a) and imposing the
middle term for the principal offense of home invasion robbery, but we find no
abuse of discretion in these sentencing choices.
Accordingly, we reverse the order dismissing the prior strike conviction
and remand to afford the trial court the discretion to decide the merits of
defendant’s Romero motion, “this time based on a correct understanding of
the law.” (Dain II, supra, 18 Cal.5th at p. 253.)
2 Previously at People v. Dain (2024) 99 Cal.App.5th 399.
3 The Supreme Court’s grant of review in Dain II was “limited to the
following question: ‘Did the Court of Appeal err in remanding the case with
directions to reinstate the strike finding and to resentence defendant as a
person who has suffered a prior strike conviction under the Three Strikes
Law?’ ” (Dain II, supra, 18 Cal.5th at p. 255.)
2
FACTUAL AND PROCEDURAL BACKGROUND
Current Offenses
As we recounted in our opinion after defendant’s first appeal, “Around
2:00 a.m. on October 18, 2017, Jess and Brandi Smith and their two
daughters were asleep in their home in Santa Rosa when Jess and Brandi
were awakened by their dog barking. When Jess got up to check on the dog,
he discovered three or four men entering his dining room through a large
window. The intruders all had pistols, and they were wearing hoodies pulled
tight around their faces. Jess ran toward his bedroom and was tackled from
behind. His attacker put Jess in a chokehold, held a .45 caliber pistol to his
head, and forced him to his bedroom. Another man pointed a gun at Brandi.
The intruders cursed and said, ‘Where the fuck is it?’ and ransacked their
bedroom.
“Jess was dragged to the garage, where there was a safe containing
jewelry and firearms, and told to open the safe. After Jess attempted and
failed to open the safe, he was struck in the head with the pistol. Jess yelled
out the combination; the men opened the safe but continued to demand,
‘where is it?’ Jess was part of a marijuana collective, and he realized the
intruders were looking for marijuana. He showed them a key to a shed, and
they dragged him outside to the shed where he pointed to boxes that
contained marijuana. One of the men told Jess, ‘shut up and lay here and I
won’t fucking shoot you,’ and the men started grabbing things in the shed.
Eventually, the intruders left the shed, and Jess got up, ran to the front of
the house, and saw a large SUV driving away.
“Meanwhile, the Smiths’ daughters (ages 20 and 9 years old at the
time) had been forced into a bathroom. Brandi was dragged into the
bathroom with her daughters. After it became quiet in the house, the older
3
daughter left the bathroom and ran to a neighbor’s house, and the neighbor
called 911.”
Soon after the intruders left, defendant was pulled over for a traffic
stop about a mile from the Smiths’ house. In his vehicle, police found items
that belonged to the Smiths, including a jewelry box, a bracelet, and 14 one-
pound bags of marijuana.
Convictions, First Romero Motion, and Original Sentence
The jury convicted defendant of home invasion robbery (Pen. Code,4
§§ 211, 213, subd. (a)(1)(A); count 1), kidnapping of Jess (§ 207, subd. (a);
count 2), first degree burglary (§ 459; count 3), assault with a firearm of Jess
(§ 245, subd. (a)(2); count 4), false imprisonment of Jess (§ 236; count 5), false
imprisonment of Brandi (ibid.; count 6), false imprisonment of the older
Smith daughter (ibid.; count 7), and of false imprisonment of the younger
daughter (ibid.; count 8). As to counts 7 and 8, the jury found true the
enhancement allegation that a principal in the offense was armed with a
firearm. (§ 12022, subd. (a)(1).)
The trial court found true allegations that defendant was convicted of
felony active participation in a criminal street gang in violation of section
186.22, subdivision (a) (section 186.22(a)) in 2006 and again in 2007 and that
both prior convictions were strikes under the Three Strikes law (§§ 667,
subds. (d)–(i), 1170.12) and serious felony convictions under section 667(a).
The Probation Officer’s presentence report (probation report)
recommended that factors in aggravation prevailed as to all counts.5 The
4 Further undesignated statutory references are to the Penal Code.
5 Without opposition from the parties, we have taken judicial notice of
the probation report, which was part of the appellate record in People v. Dain,
Appeal No. A157756 (the appeal resulting in our opinion Dain I), pursuant to
Evidence Code section 452, subdivision (d).
4
report documented that defendant, then 33 years old, had an extensive
criminal history. As a juvenile, he had sustained petitions for misdemeanor
vandalism in 1998; misdemeanor theft in 1999; misdemeanor vandalism in
2001; misdemeanor theft in 2001; and misdemeanor resisting an officer in
2003, resulting at different times in community detention and various
commitments, including several periods in Juvenile Hall. As an adult,
defendant suffered convictions for misdemeanor theft in 2004; misdemeanor
resisting an officer in 2005; misdemeanor driving in a willful or wanton
disregard for safety of persons or property while fleeing a police officer in
violation of Vehicle Code section 2800.2 in 2005; misdemeanor assault with a
deadly weapon and felony active gang participation in 2006; felony possession
of a firearm by a felon and felony active gang participation in 2007;
misdemeanor false representation of identity to a peace officer in 2013; and
felony violation of Vehicle Code section 2800.2, felony unlawful
transportation of cannabis, and misdemeanor resisting an officer in 2014.
For the 2006 convictions, committed when he was 20 years old, defendant
was placed on three years’ formal probation with nine months in jail. For his
2007 convictions, he was sentenced to six years in prison. Defendant was
paroled in 2011 and was subsequently found in violation of parole numerous
times, including three occasions for associating with gang members and one
occasion for possession of a firearm. For his 2014 convictions, defendant
received a suspended sentence of five years, eight months, and was placed on
three years’ formal probation. He was on probation when he committed the
current offenses.
Defendant was sentenced in June 2019. Defendant filed a Romero
motion inviting the court to dismiss the prior strike convictions, which the
trial court denied.
5
Explaining its ruling on the Romero motion, the court (Honorable
Bradford DeMeo) stated the prior strike convictions from 2006 and 2007
could not be considered remote in time because they were not followed by “a
clear period of law-abiding conduct.” Noting the law disfavors dismissing
strikes when “a person has a long and continuous criminal career,” it found
defendant had “a long history of criminal conduct,” including “many
misdemeanors . . ., parole violations, probation violations, and felonies.”
Considering the nature and circumstances of the current offenses, the court
described a “terrorizing event” involving “a violent, home-invasion robbery
with guns brandished, pointed at people’s heads, point-blank range, yelling,
grabbing people, hitting [Jess] with the gun, putting children into a
bathroom, locking them in there with their mother, or at least guarding it,
keeping them imprisoned in that when they had no idea what’s happening to
husband and father.” The court observed that defendant “has been on
probation, been on parole” and “[t]hat did not seem to discourage him from a
life of violating the law and crime.”
After denying the Romero motion, the court sentenced defendant to a
determinate term of 30 years and a consecutive indeterminate term of 27
years to life in prison.
First Appeal
In defendant’s original appeal, we found insufficient evidence to
support the trial court’s findings that defendant’s prior convictions for active
gang participation were strikes and serious felony convictions.6 In addition,
6 In 2006 and again in 2007, defendant pleaded no contest to active
gang participation in violation of section 186.22(a). When defendant entered
his pleas, “an individual could be convicted of violating section 186.22(a) as a
sole perpetrator,” but our high court later “clarified section 186.22(a) is not
6
the parties agreed that the false imprisonment conviction as to victim Jess
(count 5) had to be reversed because it was a lesser included offense of the
kidnapping conviction (count 2) and that 10 years of the determinate term
were improperly imposed under section 667(a). We therefore vacated the
sentence, reversed the conviction for count 5, reversed the findings that
defendant had prior strike and serious felony convictions, and remanded the
matter for retrial of the prior conviction allegations and for resentencing.
Resentencing on Remand
On remand, the prosecution elected to retry defendant’s 2006 conviction
for active gang participation, while conceding the 2007 conviction did not
qualify as a prior strike conviction. The trial court (Honorable Robert
LaForge) found the 2006 conviction qualified as a strike and serious felony
conviction and that finding is not challenged on appeal.7
Defendant filed a Romero motion to strike the 2006 conviction for active
gang participation. The People opposed the motion and filed a statement in
aggravation.
violated by a gang member acting alone [and] is violated only when an active
gang member commits a felony offense with one or more members of his or
her gang.” (People v. Strike (2020) 45 Cal.App.5th 143, 146, citing People v.
Rodriguez (2012) 55 Cal.4th 1125.) This change in the interpretation of
section 186.22(a) meant that defendant’s convictions, by themselves, were
inconclusive as to whether they qualified as strikes. (Strike, at p. 150.)
Following Strike, we therefore reversed the findings that defendant’s 2006
and 2007 convictions of violation of section 186.22(a) qualify as strikes and
serious felony convictions and remanded the matter to permit the prosecution
to retry the allegations based on the record of the prior plea proceedings.
7 According to the probation report, the 2006 conviction was based on
an incident in which four victims entered a restaurant and were confronted
by defendant and three additional suspects. Defendant and his associates hit
and kicked the victims while yelling gang epithets, and two of the victims
were stabbed with a knife.
7
At resentencing in June 2023, the trial court (Honorable Bradford
DeMeo) began the hearing by announcing its intention to grant the Romero
motion and impose middle terms for a sentence of eight years, eight months.
The prosecutor expressed surprise, given that the court previously denied
defendant’s virtually identical Romero motion. The trial court responded
that, in the four years since defendant’s original sentencing in 2019, the
“California legislature has made it very clear things are changing, the law is
changing. . . . [A]nd there are some cases that have come down since then
that have talked about the general nature of California’s policy in these
circumstances.” The court continued, “[I]n my reflection of what the spirit of
the law is, and we do try to apply it, I think the legislature has been very
clear that things are different, remoteness does count and I think under the
current case law it’s appropriate to strike.”
The trial court granted the Romero motion, striking defendant’s prior
conviction as a strike under the Three Strikes law and dismissed the
enhancement under section 667(a). It sentenced defendant to eight years,
eight months in prison composed of the middle term of six years for count 1,
the home invasion robbery; eight months for count 6, false imprisonment of
Brandi (one-third of the middle term of two years); one year for count 7, false
imprisonment of the older daughter (eight months plus one-third the middle
term of one year for the firearm enhancement); and one year for count 8, false
imprisonment of the younger daughter (same calculation). The punishment
for counts 2 through 4 was stayed under section 654.8
8 Dain’s fallback position in his sentencing memo to the trial court was
that if the trial court were to deny the motion to dismiss the prior strike, but
dismiss the section 667(a) enhancement, and impose the middle term, the
determinate sentence would be 16 years, 8 months.
8
The People appealed. (§ 1238, subd. (a)(10) [appeal by the People may
be taken from “imposition of a sentence based upon an unlawful order of the
court which strikes or otherwise modifies the effect of an enhancement or
prior conviction” (italics added)]; see People v. Jordan (1986) 42 Cal.3d 308,
312, fn. 2 [People’s “[a]ppeal is authorized from an order reducing . . . the
punishment imposed”].)
DISCUSSION
A. Striking Defendant’s Prior Convictions for Sentencing Purposes
1. The Trial Court’s Authority to Dismiss Prior Convictions
In 1994, the Three Strikes law was enacted “to ensure longer prison
sentences and greater punishment for those who commit a felony and have
been previously convicted of one or more serious or violent felony offenses.”
(§ 667, subd. (b); Romero, supra, 13 Cal.4th at pp. 504–505.) The law
“consists of two, nearly identical statutory schemes . . . . The earlier
provision, which the Legislature enacted, was codified as section 667,
subdivisions (b) through (i). The later provision, which the voters adopted
through the initiative process, was codified as section 1170.12.” (Romero, at
p. 504.) Prior convictions for “serious” or “violent” felonies, as defined by the
Three Strikes law, are referred to as “strikes.” (People v. Henderson (2022) 14
Cal.5th 34, 43–44.)
Section 1385, subdivision (a) (section 1385(a)), authorizes a trial court
to dismiss an action “in furtherance of justice” on its own motion. In 1996,
the California Supreme Court in Romero, supra, 13 Cal.4th at page 504, held
that section 1385(a) grants trial courts authority to dismiss prior strike
convictions under the Three Strikes law. Hence, a request that the trial court
exercise its discretion to dismiss a prior strike conviction is commonly
9
referred to as a “Romero motion.” (E.g., People v. Carmony (2004) 33 Cal.4th
367, 379 (Carmony).)
In 2019, the Legislature granted trial courts authority to dismiss
section 667(a)’s five-year enhancement for a prior serious felony conviction.
(Stats. 2018, ch. 1013, §§ 1–2; People v. Garcia (2018) 28 Cal.App.5th 961,
971.) Before 2019, a trial court was “required to impose a five-year
consecutive term for ‘any person convicted of a serious felony who previously
has been convicted of a serious felony’ (§ 667(a)), and the court ha[d] no
discretion ‘to strike any prior conviction of a serious felony for purposes of
enhancement of a sentence under Section 667.’ ” (People v. Garcia, at p. 971.)
Prior to 2022, section 1385 “did not provide direction as to how courts
should exercise [their] discretion” to dismiss or strike enhancements. (People
v. Anderson (2023) 88 Cal.App.5th 233, 238.) But, effective January 1, 2022,
Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) amended section
1385 to specify mitigating circumstances courts must consider when deciding
whether to strike enhancements in furtherance of justice. (Stats. 2021, ch.
721, § 1; People v. Lipscomb (2022) 87 Cal.App.5th 9, 16.)
Senate Bill 81 added subdivision (c) to section 1385 (section 1385(c))
(Stats. 2021, ch. 721, § 1), which now provides that “the court shall dismiss
an enhancement if it is in the furtherance of justice to do so,” and instructs
the court to “consider and afford great weight to evidence offered by the
defendant to prove . . . [specified] mitigating circumstances.” Among the
specified mitigating circumstances that “weigh[] greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety” is the circumstance that “[t]he
enhancement is based on a prior conviction that is over five years old.”
(§ 1385(c)(2)(H).)
10
Here, at resentencing in June 2023, the trial court recognized that
sentencing laws have changed since defendant was originally sentenced in
20199 and observed that “remoteness does count.” And, as we have just
described, the fact that an enhancement is based on a prior conviction that is
over five years old is now a mitigating circumstance entitled to great weight
in favor of dismissal under section 1385(c)(2)(H).
But section 1385(c), by its terms, applies only when a trial court is
considering whether to dismiss “an enhancement,” and a sentence under the
Three Strikes law is not an enhancement. In People v. Burke (2023) 89
Cal.App.5th 237 (Burke), the Third District Court of Appeal recently
concluded section 1385(c) does not apply to a decision whether to dismiss a
prior strike conviction under the Three Strikes law, reasoning: “The term
‘enhancement’ has a well-established technical meaning in California law.
[Citation.] ‘A sentence enhancement is “an additional term of imprisonment
added to the base term.” ’ [Citations.] It is equally well established that the
Three Strikes law is not an enhancement; it is an alternative sentencing
scheme for the current offense. [Citations.] We presume the Legislature was
aware of, and acquiesced in, both this established judicial definition of
9 The trial court was generally correct on this point.The Legislature
recently declared it “has been engaged on a multiyear course correction” in
respect to criminal sentencing following “the hyperpunitive policies enacted
in the 1980s and 1990s, which led to the era of mass incarceration.” (Stats.
2023, ch. 560, § 1.) In People v. Avila (2020) 57 Cal.App.5th 1134 (Avila), the
court observed that the Legislature has recently changed sentencing laws
and “redefin[ed] culpability for various crimes,” and “these changes show that
legislators and courts are reconsidering the length of sentences in different
contexts to decrease their severity.” (Id. at pp. 1150–1151.) However, the
Legislature’s recent “course correction” has not included any substantive
amendment to the Three Strikes law itself.
11
enhancement and the distinction between an enhancement and an
alternative sentencing scheme such as the Three Strikes law.” (Id. at p. 243.)
We agree with the Third District’s reasoning. Section 1385(c) does not
apply to a decision whether to dismiss a strike because the subdivision
“applies only to an ‘enhancement,’ and the Three Strikes law is not an
enhancement.” (Burke, supra, 89 Cal.App.5th at p. 244; accord People v. Olay
(2023) 98 Cal.App.5th 60, 65–66 (Olay) [applying Burke’s reasoning to section
1385, subdivision (c)(2)(G)].)
Furthermore, as to section 1385(c)(2)(H) in particular, requiring a court
to treat the fact that a prior strike conviction is over five years old as a
mitigating circumstance would conflict with the Three Strikes law itself.
Section 667, subdivision (c)(3) (section 667(c)(3)), of the Three Strikes law
expressly provides, “The length of time between the prior serious or violent
felony conviction and the current felony conviction shall not affect the
imposition of sentence.” (Italics added; see § 1170.12, subd. (a)(3) [same].)
We do not presume the Legislature intended to repeal this provision when it
enacted section 1385(c)(2)(H). (See Lopez v. Sony Electronics, Inc. (2018) 5
Cal.5th 627, 637 [“Repeals by implication are disfavored”].) Thus, under
section 667(c)(3), the bare fact that a prior strike conviction is over five years
old cannot be the basis for dismissing the strike. (See People v. Strong (2001)
87 Cal.App.4th 328, 342 [section 667(c)(3), “suggests, at a minimum, that
remoteness alone cannot take a defendant outside the spirit of the very law
that expressly rejects remoteness as a basis for avoiding the law”],
disapproved on another point by Dain II, supra, 18 Cal.5th at p. 265, fn. 5.)
2. Assembly Bill No. 600
After briefing was completed in this appeal and the matter set for oral
argument, defendant sent this court a letter notifying us of Assembly Bill No.
12
600 (2023-2024 Reg. Sess.) (Assembly Bill 600), which amended section
1172.1 effective January 1, 2024. Defendant asserted this legislation was
relevant to this appeal, and we asked the parties to submit supplemental
briefing addressing how Assembly Bill 600 might affect our analysis.
Section 1172.1 provides a recall and resentencing procedure that may
be invoked when, for example, the Secretary of the Department of
Corrections and Rehabilitation recommends resentencing. (§ 1172.1, subd.
(a)(1); see People v. Codinha (2023) 92 Cal.App.5th 976, 984, 986–987 [section
1172.1 grants the trial court authority to resentence as an exception to the
general rule that the court has no jurisdiction to resentence a defendant after
execution of a sentence; citing cases in which the Secretary recommended
resentencing based on a subsequent change in sentencing law, a defendant’s
good behavior in prison, and a defendant’s medical condition].) Assembly Bill
600 amended section 1172.1 to allow a trial court, on its own motion, to recall
a sentence and resentence a defendant when “applicable sentencing laws at
the time of the original sentencing are subsequently changed by new
statutory authority or case law.” (§ 1172.1, subd. (a)(1), as amended by Stats.
2023, ch. 446, § 2.)
While recognizing section 1172.1 does not apply in this case, defendant
relies on the following language from the uncodified preamble to the
amended statute: “It is the . . . intent of the Legislature that courts have full
discretion in resentencing proceedings pursuant to Section 1172.1 of the
Penal Code to reconsider past decisions to impose prior strikes. The list of
factors considered in People v. Superior Court (Romero) (1996) 13 Cal.4th
497, is not exhaustive. Courts should consider Section 1385 of the Penal
Code, postconviction factors, or any other evidence that continued
13
incarceration is no longer in the interests of justice.” (Stats. 2023, ch. 446,
§ 1, para. (b).)
Defendant argues that the Legislature’s statement in Assembly Bill
600 undermines Burke’s reasoning and suggests the Legislature intended
section 1385(c) to apply to decisions whether to dismiss prior strike
convictions. We disagree. As our colleagues in Division Five recently
observed, the Burke court relied on the canon of statutory construction,
“ ‘when a word used in a statute has a well-established legal meaning, it will
be given that meaning in construing the statute.’ ” (Olay, supra, 98
Cal.App.5th at p. 65, quoting Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19.) We
do not believe an uncodified declaration in a subsequent law amending a
different statute demonstrates the Legislature intended the term
“enhancement” as used in section 1385(c) to refer to something other than its
well-established legal meaning. (Cf. Olay, supra, at p. 67 [“we are skeptical
the Legislature would have expressed an intent to reject the well-established
legal meaning of ‘enhancement’ in such a roundabout manner by obliquely
referencing ‘juvenile adjudications’ as one of the relevant mitigating
circumstances”].)
Moreover, the People correctly observe that section 1385(c) cannot be
construed in a manner that amends the Three Strikes law. This is because
the Legislature may only amend the Three Strikes law “by statute passed in
each house by rollcall vote entered in the journal, two-thirds of the
membership concurring” (§§ 667, subd. (j), 1170.12, subd. (g); see Cal. Const.,
art. II, § 10, subd. (c)), but neither Senate Bill 81 (which added section
1385(c)) nor Assembly Bill 600 (which includes the Legislative declaration
defendant relies on) passed by two-thirds of the membership. (Sen. Daily J.
(Sept. 9. 2021) p. 2553 [Senate Bill 81]; Assem. Daily J. (Sept. 8, 2021) p.
14
2941 [Senate Bill 81]; Sen. Daily J. (Sept. 13, 2023) p. 2704 [Assembly Bill
600]; Assem. Daily J. (Sept. 13. 2023) p. 3470 [Assembly Bill 600].)
“An amendment is a legislative act designed to change an existing
initiative statute by adding or taking from it some particular provision.”
(People v. Cooper (2002) 27 Cal.4th 38, 44.) Here, even if we found
defendant’s argument about Assembly Bill 600 persuasive (we do not), we
would reject his construction of section 1385(c) because applying section
1385(c)(2)(H) to a decision whether to dismiss a strike would
unconstitutionally amend the Three Strikes law by taking away section
667(c)(3)’s provision that “[t]he length of time between the prior [strike]
conviction and the current felony conviction shall not affect the imposition of
sentence.”
3. Applicable Law and Standard of Review
Now that we have determined section 1385(c) does not apply to a trial
court’s decision whether to dismiss a prior strike conviction under the Three
Strikes law, we consider the case law that does govern such a decision.
In People v. Williams (1998) 17 Cal.4th 148 (Williams), our high court
offered the following guidance: “[I]n ruling whether to strike or vacate a prior
serious and/or violent felony conviction allegation or finding under the Three
Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal
Code section 1385(a), or in reviewing such a ruling, 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.” (Id. at p. 161.) A trial court may “give ‘no
15
weight whatsoever . . . to factors extrinsic to the [Three Strikes] scheme.’ ”
(People v. Garcia (1999) 20 Cal.4th 490, 498 (Garcia), quoting Williams, at p.
161.)
In Carmony, our high court emphasized that the Three Strikes law “not
only establishes a sentencing norm, it carefully circumscribes the trial court’s
power to depart from this norm and requires the court to explicitly justify its
decision to do so.” (Carmony, supra, 33 Cal.4th at p. 378.) The court
described the Williams guidance as “stringent standards that sentencing
courts must follow in order to find” a defendant outside the scheme’s spirit.
(Carmony, at p. 377, italics added.) More recently, the high court reiterated,
“[T]he Three Strikes law establishes a ‘strong presumption’ in favor of a
harsher sentence and requires the court to explicitly articulate its reasoning
if it is to depart from a harsher sentence by granting the Romero motion.”
(People v. Salazar (2023) 15 Cal.5th 416, 428 [citing Williams and Carmony].)
A trial court’s decision whether to dismiss a prior strike conviction is
reviewed for abuse of discretion. (Williams, supra, 17 Cal.4th at p. 162.)
“This standard is deferential,” “[b]ut it is not empty. . . . [I]t asks in substance
whether the ruling in question ‘falls outside the bounds of reason’ under the
applicable law and the relevant facts.” (Ibid.)
In Williams, defendant Williams had two prior strike convictions (for
attempted robbery and rape) and was currently charged with driving under
the influence. (Williams, supra, 17 Cal.4th at pp. 152–153.) After Williams
entered a guilty plea, the trial court vacated one of the two strikes and
sentenced Williams as though he had only one prior strike conviction, and the
People appealed. (Id. at pp. 156–157.)
The California Supreme Court concluded the trial court abused its
discretion in vacating one of the strikes. (Williams, supra, 17 Cal.4th at p.
16
162.) The court explained, “There is little about Williams’s present felony, or
his prior serious and/or violent felony convictions, that is favorable to his
position. Indeed, there is nothing.” (Id. at p. 163.) His current felony for
driving under the influence followed three other convictions for driving under
the influence, and “[t]he record on appeal [wa]s devoid of mitigation” related
“to his prior serious and/or violent felony convictions.” (Ibid.) Nor did
Williams’s background, character, or prospects show he was outside the spirit
of the Three Strikes law given that he was unemployed and, in the 13 years
since he suffered his prior strike convictions, “he was often in prison or jail;
when he was not, he violated parole and, apparently, probation and
committed [further misdemeanor and felony] offenses.” (Ibid.) Under these
circumstances, the decision to strike one of Williams’ prior strike convictions
“fell outside the bounds of reason under the applicable law and the relevant
facts.” (Id. at p. 164.)
In contrast to Williams, Garcia, supra, 20 Cal.4th 490, provides an
example of circumstances under which dismissing a prior strike conviction
may be in furtherance of justice. In Garcia, the defendant was convicted of
two counts of burglary and found to have five prior strike convictions. (Id. at
p. 493.) As to one of the current counts of burglary, the trial court “struck all
the prior conviction allegations” at sentencing. (Id. at p. 495.) In deciding to
strike the prior strike convictions, the trial court considered the facts that the
“defendant’s prior convictions all arose from a single period of aberrant
behavior for which he served a single prison term,” that he “cooperated with
police, [that] his crimes were related to drug addiction, and [that] his
criminal history d[id] not include any actual violence.” (Id. at p. 503.) Our
high court concluded, “Cumulatively, all these circumstances indicate that
‘defendant may be deemed outside the [Three Strikes] scheme’s spirit,’ at
17
least ‘in part,’ and that the trial court acted within the limits of its section
1385 discretion.” (Ibid.)
4. Analysis
The present case is more akin to Williams than Garcia. According to
the probation report, defendant “stopped attending school because he ‘started
going to jail a lot,’ ” and he was unemployed from 2004 to 2014. In the 11
years between his prior strike conviction in 2006 and his current offenses
committed in 2017, defendant was on probation, in prison, on parole, and on
probation. Like the defendant in Williams, defendant violated parole and
committed additional misdemeanor and felony offenses after suffering the
strike conviction. Unlike the defendant in Garcia, defendant’s prior
conviction was not the result of a single period of aberrant behavior, there is
no suggestion that he cooperated with the police or that his crimes are
related to drug addiction, and both his current convictions and his prior
strike conviction involved violence.10
“[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 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, italics added.) On this
record, we see nothing about the nature and circumstances of the present
felonies and the prior strike conviction or the particulars of defendant’s
10 As the trial court observed at defendant’s original sentencing, the
current convictions involved a home-invasion robbery in which defendant’s
accomplices pointed guns at the victims’ heads and one victim was hit with a
gun. The prior strike conviction involved defendant and associates hitting
and kicking multiple victims, and one of defendant’s associates also stabbed
two of the victims.
18
background, character, and prospects that suggests defendant could be
deemed outside the spirit of the Three Strikes law.
In granting the Romero motion, the trial court cited “remoteness.”
However, as we have seen, remoteness, by itself, cannot be the basis for
dismissing a prior strike conviction. (§ 667(c)(3); People v. Strong, supra, 87
Cal.App.4th at p. 342.) It is true that a remote conviction may be dismissed if
it is followed by a long crime-free period evidencing rehabilitation. As
explained in People v. Humphrey (1997) 58 Cal.App.4th 809, “In criminal law
parlance, this is sometimes referred to as ‘washing out.’ [Citations.] The
phrase is apt because it carries the connotation of a crime-free cleansing
period of rehabilitation after a defendant has had the opportunity to reflect
upon the error of his or her ways.” (Id. at p. 813 [reversing the trial court’s
dismissal of a strike because “the defendant has led a continuous life of crime
after the prior, there has been no ‘washing out’ and there is simply nothing
mitigating about a 20-year-old prior”].) But “older strike convictions do not
deserve judicial forgiveness unless the defendant has used them as a pivot
point for reforming his ways.” (People v. Mayfield (2020) 50 Cal.App.5th
1096, 1107–1108 [reversing the trial court’s dismissal of one of two prior
strike convictions where the defendant “failed to reform his behavior during
the decade-plus that elapsed between his first strike conviction and his third
strike conviction”].)
Here, it cannot be said on the record before us that defendant reformed
his ways after his strike conviction. To the contrary, he continued to commit
crimes, was sent to prison, was paroled, violated parole, committed further
crimes, and was on probation when he committed the current offenses.
Under these circumstances, the mere fact that defendant’s prior strike
conviction was 11 years old cannot justify granting his Romero motion.
19
The trial court also stated that the “California legislature has made it
very clear things are changing, the law is changing,” and, in considering
“what the spirit of the law is, . . . I think the legislature has been very clear
that things are different. . . .” However, the court was not free to dismiss the
strike based on a perceived change in the “spirit” of sentencing laws in
general when the Three Strikes law itself has not changed. (See Garcia,
supra, 20 Cal.4th at p. 498 [“the court could give ‘no weight whatsoever . . . to
factors extrinsic to the [Three Strikes] scheme’ ”].) The issue before the court
was “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,” defendant could “be deemed out the
scheme’s spirit” (Williams, supra, 17 Cal.4th at p. 161), but other than the
remoteness of the strike offense, the court cited nothing about defendant’s
particular circumstances that conceivably would take him outside the spirit
of the Three Strikes law.
In our prior decision in this second appeal, we remanded to the trial
court with directions to reinstate the strike finding and to resentence
defendant as a person who has suffered a prior strike conviction under the
Three Strikes law because we concluded striking his prior strike conviction
under the circumstances of this case “ ‘falls outside the bounds of reason’
under the applicable law and the relevant facts.” (Williams, supra, 17
Cal.4th at p. 162.) The California Supreme Court, however, reversed our
disposition, “hold[ing] that the proper remedy for the errors in the trial court
order granting dismissal of Dain’s strike is a remand that allows for further
proceedings, as appropriate, on the merits of Dain’s Romero motion.” (Dain
II, supra, 18 Cal.5th at p. 266.) The court “express[ed] no views on the merits
of the motion, which is a matter for the trial court to decide in the first
20
instance.” (Id. at p. 267.) We therefore reverse the order granting dismissal
of the strike and, in accordance with our Supreme Court’s decision in Dain II,
remand for the trial court to decide defendant’s Romero motion, “this time
informed by the appellate court’s clarification of the governing law and any
arguments and evidence it may find admissible and relevant to the matter
before it” (ibid.).
5. The Section 667(a) Enhancement
The People assert, “For these same reasons, the court’s decision not to
impose the 5-year enhancement as required by Section 667(a) is also an
abuse of discretion.” To the extent the People intend to separately challenge
the dismissal of the enhancement under section 667(a), their bare assertion
violates California Rule of Court, rule 8.204(a)(1)(B), which requires each
point to be raised under a separate heading or subheading and to be
supported by argument.
In any event, the “same reasons” do not show the trial court abused its
discretion in dismissing the enhancement under section 667(a) because this
decision is governed by section 1385(c), while the decision whether to dismiss
a prior strike conviction under the Three Strikes law is not. In the present
case, defendant’s “prior conviction . . . is over five years old,” which is a
mitigating circumstance that “weighs greatly in favor of dismissing the
enhancement.” (§ 1385(c)(2)(H).) Given this statutory guidance in favor of
dismissal, we cannot say it was an abuse of discretion for the trial court to
dismiss the prior conviction for purposes of section 667(a) based on the
remoteness of the conviction.
B. Imposing the Middle Term
The People also contend the trial court abused its discretion in
imposing the middle term for the principal offense of home-invasion robbery.
21
Under the determinate sentencing law, the trial court is limited to imposing
“a sentence not to exceed the middle term,” except in certain circumstances.
(§ 1170, subd. (b)(1).) “The court may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding the middle
term and the facts underlying those circumstances have been stipulated to by
the defendant or have been found true beyond a reasonable doubt at trial by
the jury or by the judge in a court trial.” (Id., subd. (b)(2), italics added.) And
“the court may consider the defendant’s prior convictions in determining
sentencing based on a certified record of conviction without submitting the
prior convictions to a jury.” (Id., subd. (b)(3).)
The People argue an upper term was “justified” in this case based on
defendant’s criminal history alone. But the law does not require the
imposition of an upper term when an aggravating circumstance exists. The
People cite no cases in which a trial court was found to have abused its
discretion by declining to impose an upper term, and they fail to show abuse
of discretion here. (See Carmony, supra, 33 Cal.4th at pp. 376–377 [the
burden is on the appellant to clearly establish the sentencing decision was
irrational or arbitrary].)
DISPOSITION
The trial court’s order striking the prior strike conviction is reversed
and the matter is remanded for the trial court to decide the Romero motion in
the first instance under the governing law and any argument and evidence
the court may find admissible and relevant.
22
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Richman, J.
A168286, People v. Dain
23
Court: Sonoma County Superior Court
Trial Judge: Hon. Bradford DeMeo
Carla C. Rodriguez, District Attorney, Anne C. Masterson, Chief Deputy
District Attorney, Sarah A. Brooks, Deputy District Attorney, for Plaintiff
and Appellant
Mi Kim, under appointment by the Court of Appeal, for Defendant and
Respondent
A168286, People v. Dain
24