The opinion
Filed 10/30/23 P. v. Reed CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084268
Plaintiff and Respondent,
(Tulare Super. Ct. No. VCF398368)
v.
JIMMY LEE REED, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Nathan G.
Leedy, Judge.
Richard M. Oberto for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench, and
Jamie A. Scheidegger for Plaintiff and Respondent.
-ooOoo-
Defendant Jimmy Lee Reed was convicted by a jury of one count of attempted
murder, one count of assault with force likely to produce great bodily injury (GBI), one
count of domestic violence, and one count of attempted criminal threats. The jury also
found true the enhancement that defendant had inflicted GBI in circumstances involving
domestic violence. In bifurcated proceedings, the trial court found true that defendant
had two prior strike convictions for purposes of the “Three Strikes” law (Pen. Code,
§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)),1 which also qualified as serious felony
convictions. After the verdict, the trial court denied a motion to dismiss the two prior
strikes and the GBI enhancement. The court sentenced defendant to a total term of 30
years to life imprisonment. On appeal, defendant contends that the trial court erred by:
(1) not dismissing the GBI enhancement; (2) imposing the upper term sentence of five
years on the GBI enhancement; and (3) failing to stay the attempted criminal threats
offense pursuant to section 654. We vacate defendant’s sentence and remand for
resentencing. In all other respects, we affirm.
PROCEDURAL BACKGROUND
On March 26, 2021, the Tulare County District Attorney filed an information
charging defendant with: one count of attempted murder (§§ 664, 187, subd. (a);
count 1); one count of assault by means of force likely to produce GBI (§ 245,
subd. (a)(4); count 2); one count of domestic violence against someone with whom
defendant had a former dating relationship (§ 273.5, subd. (a); count 3); and one count of
attempted criminal threats (§§ 664, 422; count 4).2 For all counts, the information
alleged that defendant had suffered two prior strike convictions (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)). The information alleged that these two strikes also each
1 All further statutory references are to the Penal Code unless otherwise noted.
2 Count 4 originally alleged criminal threats. During trial, the trial court granted a
defense motion to acquit on count 4 as charged but permitted the prosecutor to amend
count 4 to allege attempted criminal threats.
2.
qualified as prior serious felony convictions (§ 667, subd. (a)(1)). Also, for all counts,
the information alleged that defendant committed the offense while on parole
(§ 1203.085, subds. (a), (b)). For counts 1 through 3, the information alleged that
defendant personally inflicted GBI under circumstances involving domestic violence
(§ 12022.7, subd. (e)). Finally, with respect to count 1, the information alleged that
defendant acted willfully, deliberately, and with premeditation (§ 664, subd. (a)).
On May 27, 2021, the jury found defendant guilty on all four counts. With respect
to count 1, the jury found not true the allegation that defendant acted willfully,
deliberately, and with premeditation. For counts one through three, the jury found true
the enhancement that defendant personally inflicted GBI in circumstances involving
domestic violence. In a bifurcated proceeding, the trial court found not true that
defendant had committed the offenses while on parole but found true the allegations that
defendant had two prior strike convictions which also qualified as serious felony
convictions.
On April 8, 2022, the trial court sentenced defendant on count 1 to a total term of
30 years to life (25 years to life for a third strike (§ 667, subd. (e)(2)(A)(ii)), plus the
upper term of five years for the GBI enhancement (§ 12022.7, subd. (e)). The court
sentenced defendant to 25 years to life on counts 2 through 4, stayed counts 2 and 3
pursuant to section 664, and ordered count 4 to run concurrently with count 1. Prior to
sentencing, the court denied a motion to dismiss the two prior strikes and the GBI
enhancement but did not impose the enhancements for the two prior serious felony
convictions (§ 667, subd. (a)(1)).
FACTUAL BACKGROUND
On May 21, 2020, defendant and his ex-girlfriend, K.H., were texting while K.H.
was getting gas at a local gas station. K.H. testified that she and defendant were an “on-
again, off again” couple and that she had agreed that they might “hang out” together that
night, even though they both were currently dating other people. As K.H. was pumping
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gas, defendant arrived at the gas station. Defendant and K.H. began to argue. K.H.
testified that she was going to leave, but defendant insisted that she give him a ride. K.H.
eventually relented, and the two left the gas station in K.H.’s car. K.H. and defendant
quickly began arguing about his new girlfriend and how his new girlfriend had been hit
by her old boyfriend. When K.H. said that defendant used force against her (just about
everything short of using his fist), defendant denied that he had done so and said,
“ ‘[T]his is what it is like for me to hit you.’ ” Defendant then started punching and
choking K.H. K.H. estimated that defendant punched her about five times. K.H. was
struggling to drive while defendant was attacking her, a task made more difficult because
her right hand was in a cast. K.H. began seeing white and tried to claw at defendant’s
face with her left hand. Defendant “let up” on his assault, and K.H. “slammed” on the
brakes. Defendant then told K.H. that he would bury K.H. with Armando, a recently
deceased boyfriend. Defendant punched and began choking K.H. again. K.H. testified
that she again began to see white and spots, and she could not breathe. K.H. passed out
but awoke when she heard the “thump” of her car door slamming. K.H. was slumped
over and saw defendant running away.
K.H. testified that she then drove herself home, where her roommate called the
police. The police took photos of K.H. and then called for an ambulance. The EMT’s
examined K.H. K.H.’s face was bruised and swelling, she had bruising around her neck
and over other parts of her body, the cast on her right arm was broken, blood had come
out of her ears, and the EMT’s said that she had a concussion.
DISCUSSION
I. Section 654
A. Parties’ Arguments
Defendant argues that the trial court erred by not staying the sentence on count 4
pursuant to section 654. The attempted criminal threats offense was part of the same
course of conduct as the attempted murder offense. Both crimes involved the same
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overarching objective to inflict physical and emotional harm on K.H. because defendant
threatened to kill K.H. while he was choking her.
The People argue that the trial court properly found that defendant harbored two
intents, the intent to kill for count 1 and the intent to threaten for count 4. The attempted
threat did not further or promote the attempted murder, and defendant could have
attempted to murder K.H. without saying anything to her. Therefore, substantial
evidence supports the court’s conclusion that defendant had separate objectives.
We agree with the People that substantial evidence supports the trial court’s
finding that counts 1 and 4 are not part of an indivisible course of conduct.
B. Additional Information
During closing argument, the prosecutor addressed the basis for count 4. The
prosecutor explained: “So what is the criminal threats? The defendant threatened to kill
or cause great bodily injury. ‘I’m gonna bury you with Armando,’ seems pretty clear-cut
and dry that was a threat to kill. [¶] [T]he defendant intended his statement be taken as a
threat. How else could you take it? Has his hands around her throat telling her what he’s
going to do in the next few moments.”
During sentencing, defense counsel argued that count 4 was part of count 1 and
that section 654 required the sentence on count 4 be stayed. The trial court responded
that the attempted murder and attempted criminal threats were part of the same course of
conduct but involved separate and distinct acts. Defense counsel countered that the same
intent was involved for both offenses. The court disagreed and explained: “It’s different
intent. The intent involved in [c]ount 4 is the intent to threaten somebody. The intent
involved in [c]ount 1 is to kill somebody.”
C. Legal Standard
Section 654 prohibits “multiple punishment for a single act or omission, or an
indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) When
applicable, section 654 precludes the imposition of concurrent sentences. (People v. Duff
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(2010) 50 Cal.4th 787, 796.) “Whether a defendant may be subjected to multiple
punishment under section 654 requires a two-step inquiry, because the statutory reference
to an ‘act or omission’ may include not only a discrete physical act but also a course of
conduct encompassing several acts pursued with a single objective.” (People v.
Corpening (2016) 2 Cal.5th 307, 311; see People v. Kopp (2019) 38 Cal.App.5th 47, 90,
review granted Nov. 13, 2019, S257844.) The first inquiry is whether the crimes were
completed by a single physical act. (Corpening, at p. 311; Kopp, at p. 90.) The second
inquiry is, if a single physical act is not involved, whether the crimes involve an
indivisible course of conduct. (Corpening, at p. 311; People v. Washington (2021) 61
Cal.App.5th 776, 795.) It is the defendant’s intent and objective, not the temporal
proximity of the offenses, that determine if there is an indivisible course of conduct.
(People v. Hicks (1993) 6 Cal.4th 784, 789; see also People v. Jackson (2016) 1 Cal.5th
269, 354.) If the defendant harbors a single intent and criminal objective, then section
654 will apply and permit punishment for only a single offense. (Jackson, at p. 354;
Kopp, at p. 90.) Where the offenses were merely incidental to or were the means of
accomplishing or facilitating one objective, the defendant will be found to have harbored
but a single intent. (Hicks, at p. 789.) If the defendant harbors multiple intents and
criminal objectives, then section 654 will not apply, and the defendant may be punished
for each offense. (Jackson, at p. 354; Kopp, at p. 90.)
A trial court’s section 654 determinations, either express or implied, will be
affirmed if they are supported by substantial evidence. (People v. Brents (2012)
53 Cal.4th 599, 618; People v. Vasquez (2020) 44 Cal.App.5th 732, 737.) Substantial
evidence is evidence that is reasonable, credible, and of solid value. (People v.
Armstrong (2016) 1 Cal.5th 432, 450.) The evidence is examined in the light most
favorable to the section 654 determination. (Vasquez, at p. 737; see also Armstrong, at
p. 450.)
6.
D. Analysis
There is no dispute, and the record clearly shows, that the basis for count 4 was
defendant’s statement to K.H., which was made while defendant was attacking K.H., that
he was going to bury her with her recently deceased boyfriend, Armando. The parties
agree that the issue is whether counts 1 and 4 involve an indivisible course of conduct,
but dispute whether defendant harbored multiple intents and objectives in committing the
offenses.
The intent required to commit the crime of attempted murder is the specific intent
to kill. (People v. Covarrubias (2016) 1 Cal.5th 838, 890.) The intent required to
commit the crime of attempted criminal threats is the specific intent to threaten to commit
a crime resulting in death or GBI, with the further intent that the threat be taken as a
threat. (People v. Chandler (2014) 60 Cal.4th 508, 516.) As Covarrubias and Chandler
show, defendant plainly harbored different criminal intents when he attempted to murder
K.H. and when he attempted to criminally threaten K.H.
With respect to objectives, the objective of an attempted murder is to kill the
victim, which is a physical harm/injury. (See People v. Perez (1979) 23 Cal.3d 545, 551
[explaining that a defendant could not be punished for both attempted murder and arson
where the objective was to kill, and the arson was the means of killing].) The objective
of a criminal threat, however, is not to actually kill or cause GBI, rather the object is to
inflict fear or mental distress. (Ayala v. Superior Court (2021) 67 Cal.App.5th 296, 304;
see People v. Solis (2001) 90 Cal.App.4th 1002, 1024 [describing the offense of criminal
threats as a crime of “ ‘mental terror’ ” and “psychic violence”].) It has been recognized
that the objective to cause mental distress is distinct from the objective to inflict physical
harm. (In re Raymundo M. (2020) 52 Cal.App.5th 78, 95; People v. Mejia (2017)
9 Cal.App.5th 1036, 1047.)
Here, defendant punched and choked K.H., briefly stopped and told K.H. that he
was going to bury her with Armando, and then continued to hit and strangle K.H. The
7.
threat was not a means of committing the attempted murder, nor did the threat do
anything to further the attempted murder. If the attempted murder of K.H. was
committed in exact conformity with defendant’s actions except that the attack was
performed in silence, we agree with the People that the crime of attempted murder would
still be complete. Indeed, K.H.’s testimony indicates that as defendant was attacking her,
he said very little. The only purpose or object that is apparent from defendant threatening
to bury K.H. with Armando was to cause K.H. some form of fear or mental distress.
Therefore, we conclude that the trial court’s implicit determination that different
objectives were involved regarding count 1 and count 4 is supported by substantial
evidence. (In re Raymundo M., supra, 52 Cal.App.5th at p. 95; People v. Mejia, supra,
9 Cal.App.5th at p. 1047.)
Defendant relies heavily on People v. Sexton (2019) 37 Cal.App.5th 457, to argue
that he had one overarching objective to inflict physical and emotional harm on K.H.
People v. Sexton involved multiple convictions against defendant Daniel Sexton for
various domestic violence related offenses. As relevant to this case, Sexton was found
guilty of inter alia domestic violence (§ 273.5, subd. (a)) and assault with force likely to
cause GBI (§ 245, subd. (a)(4)). (Sexton, at p. 465.) Sexton had seized his wife by the
throat, began choking her, and threatened to kill her. (Id. at p. 461.) When his wife tried
to run, Sexton grabbed her by the hair and then continued to choke and threaten her.
(Ibid.) The trial court sentenced defendant to two 2-year consecutive sentences for the
domestic violence and assault offenses. (Id. at p. 465.) On appeal, Sexton argued that
either the domestic violence or the assault conviction should have been stayed pursuant to
section 654. (Sexton, at p. 460.) The People argued that the domestic violence offense
corresponded to Sexton choking his wife with an objective of causing physical pain and
that the assault offense corresponded to Sexton pulling his wife’s hair with an objective
of preventing her escape. (Id. at p. 471.) The court of appeal noted that during the entire
incident, Sexton was choking and threatening his wife except for the brief period she
8.
broke free, after which Sexton pulled his wife by the hair and immediately resumed
choking and threatening her. (Id. at pp. 471–472.) The court of appeal held that Sexton’s
overarching objective throughout the interaction was to harm his wife, and any subsidiary
objectives such as regaining physical control, necessarily depended on the overarching
objective. (Id. at p. 472.) Because Sexton’s actions during the incident were not taken
for a purpose other than the principal purpose of inflicting “physical and emotional
harm,” there was a single objective and section 654 applied. (Sexton, at p. 472.)
Sexton does not control. The conduct at issue for the domestic violence and
assault offenses in that case involved at least two forms of physical violence, choking and
hair pulling. Both actions inflicted physical harm on Sexton’s wife. In such a
circumstance, it makes sense to discuss Sexton’s objective as one to “harm” his wife.
Further, the court of appeal reviewed the actions of choking and hair pulling as part of a
continuous transaction that involved constant physical attacks, interrupted only by a brief
period where Sexton’s wife attempted to escape. In contrast, the conduct for the two
crimes at issue in this case involves physical actions (punching and choking/strangling)
as well as verbal actions (threatening) by defendant against K.H. The former actions
involved physical harm, while the latter actions involved mental harm. Further,
defendant’s threat served no purpose with respect to completing or aiding the attempted
murder, unlike Sexton’s actions. Moreover, although Sexton was also convicted of
criminal threats, the Sexton court never discussed the possibility of distinct mental and
physical harms and objectives, and no party raised such issues on appeal. Therefore,
Sexton had no need to discuss the possible distinction between the objectives of the
domestic violence offense as opposed to the objectives of the criminal threats offense.
As noted above, other courts that have had to address the issue have concluded that the
infliction of mental harm and the infliction of physical harm are generally two distinct
criminal objectives for purposes of section 654. (In re Raymundo M., supra,
52 Cal.App.5th at p. 95; People v. Mejia, supra, 9 Cal.App.5th at p. 1047.) Because
9.
Sexton involves different crimes, different issues, and different actions than those in this
case, it does not aid defendant.
I. GBI Enhancement
A. Parties’ Arguments
Defendant contends that the trial court abused its discretion when it failed to
dismiss the GBI enhancement pursuant to section 1385, subdivision (c)(2). Defendant
argues that he established several factors that are entitled to “great weight” under this
statute, including childhood trauma and abuse,3 an improperly diagnosed and treated
mental illness (bipolar disorder), victimization,4 and the enhancement would lead to a
sentence greater than 20 years. On the other hand, there was no basis to conclude that
dismissing the GBI enhancement endangered public safety since he was already subject
to a mandatory 25 years to life sentence. Defendant also argues that, in violation of
section 1170, subdivision (b), the trial court relied on factors that were neither stipulated
to nor found by a jury to be true beyond a reasonable doubt when it imposed the five-year
upper term sentence.
The People respond that the trial court did not abuse its discretion by denying the
motion to dismiss. Under section 1385, subdivision (c)(2), the listed mitigating factors
do not apply if the court finds that striking the enhancements would endanger public
safety. The court’s refusal of defendant’s request to either strike the GBI enhancement or
impose the lower term, while noting that this was not the first time defendant had caused
GBI, shows that it made an implicit finding under section 1385 that justice would not be
furthered by dismissing the enhancement because of public safety concerns. The People
3 Defendant’s motion before the trial court explained that his father regularly beat
him and his mother, he was forced to watch his father rape his mother, he had to have
reconstructive surgery on his face due to his father beating him, was molested by a friend
of his father, and as a minor he used alcohol and methamphetamine with his father.
4 Defendant’s motion argued that K.H. used him for security and provided him
with money, attention, sex, and drugs.
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also respond that defendant forfeited any section 1170 error by not objecting and, in any
event, the court properly relied on defendant’s prior criminal history as reflected in the
certified records of conviction, particularly that defendant had two prior felonies with
GBI enhancements, to impose the five-year upper term.
We agree with defendant that the trial court erred, and that remand is necessary.
B. Additional Background
In November 2021, defense counsel filed a motion to dismiss the two prior strikes
and the GBI enhancement. The motion highlighted mental illness, victimization, and
significant physical and emotional childhood abuse. In February 2022, defense counsel
filed a supplemental brief that highlighted the recently effective amendments to various
sentencings laws, including section 1385 through Senate Bill No. 81 (2021–2022 Reg.
Sess.) (Stats. 2021, ch. 721) (Senate Bill 81) and section 1170 through Senate Bill
No. 567 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567). The
supplemental motion in part explained that the factors discussed and identified in his
original motion were entitled to “great weight” as a result of Senate Bill 81, which further
supported the conclusions that the enhancements should be dismissed. A second
supplemental brief was filed in April 2022. The supplemental brief included a letter from
defendant’s sister that corroborated aspects of defendant’s account of childhood abuse.
On April 8, 2022, the trial court held a sentencing hearing. The court noted that
defendant had filed a motion for new trial and a motion to strike priors. After being
invited to make comments in addition to his written submissions, defense counsel
referenced Senate Bill 81 and concluded by requesting that the enhancements be
dismissed. The court responded to defense counsel’s comments with skepticism as to the
application of the new sentencing amendments: “Counsel, the issue I see here for
[defendant] is I don’t think any of these new laws really apply to Mr. Reed. The [T]hree
[S]trikes law is an alternative sentencing scheme. They’re not enhancements within the
technical meaning of that term.” Defense counsel stated in part that there was still law
11.
under Romero.5 The court then responded: “That’s certainly true. I just approach this as
more of a traditional Romero analysis as opposed to a case that would fall under the
ambit of these new changes in the law that you have referenced.” Defense counsel and
the court then discussed Senate Bill 81’s possible applicability to the Three Strikes law.
Defense counsel in part stated that if the court “goes forward” on the three-strike
sentence, then the new sentencing amendments “don’t change anything here.” However,
defense counsel also maintained that “[Senate Bill] 81 applies here.” Just before the
prosecutor responded to defense counsel’s arguments, the court stated: “I think [defense
counsel’s] position is noted for the record. I just read the statute to not apply to
[defendant] in this situation.” After hearing the prosecutor’s position, which agreed with
the court’s view, the court denied the motion for new trial. The court then stated: “As to
the sentencing issues, again, I find there is a traditional Romero analysis. I don’t find that
the changes in the law [defense counsel] point to apply to [defendant] in … these
circumstances for the reasons I set forth.”
The trial court then addressed whether defendant fell outside the spirit of the Three
Strikes law. The court noted that defendant had made a “substantial showing of horrific
circumstances in [his] childhood,” which was uncontested by the People and corroborated
by his sister. Nevertheless, the court found that defendant’s childhood alone was not
enough to bring defendant outside the spirit of the Three Strikes law. The court noted
that the current offense was extremely violent and K.H. was hurt significantly. The court
further noted that defendant’s criminal history dated back to 1993 and reflected constant
interaction with the criminal justice system, including repeated acts of violence that
caused injury to other members of the public. While defendant’s childhood was “awful,”
the court held that it was apparent that defendant “poses a clear and present danger to the
members of this community, and this does not fall outside the spirit of the [T]hree
5 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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[S]trikes law, as [evidenced] by this current case and repeated acts of violence in the past.
[¶] The motion to strike the strike priors is denied.”
The trial court then explained that it intended to impose a sentence of 25 years to
life, plus five years for the GBI enhancement, but would not impose 10 consecutive years
for the two nickel priors because “30 to life, given [defendant’s] present age, is plenty.”
Defendant was 47 at the time of sentencing. After the court explained it intended to
sentence defendant to 30 years to life, defense counsel reiterated the positions as stated in
his briefing and requested the court reconsider its decision to impose the upper term on
the GBI enhancement. Defense counsel requested that the court either strike the
enhancement or impose the lower term of three years. The court responded to counsel:
“I intend to impose the five years. This is not the first time [defendant] has caused great
bodily injury to someone. It was alleged and apparently sustained in the carjacking case
in 1998 and again in the jail assault case in 2003.”
C. Legal Standards
1. Section 1385, Subdivision (c)
Effective January 1, 2022, California law provides that a trial court “shall dismiss
an enhancement if it is in the furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute.” (§ 1385, subd. (c)(1); People v.
Mendoza (2023) 88 Cal.App.5th 287, 295 (Mendoza); People v. Ortiz (2023)
87 Cal.App.5th 1087, 1093–1094, review granted Apr. 12, 2023, S278894.) In exercising
its discretion under subdivision (c)(1), a trial court “shall consider and afford great weight
to evidence offered by the defendant” to prove one of nine enumerated mitigating
circumstances. (§ 1385, subd. (c)(2); Mendoza, at pp. 295–296; Ortiz, at pp. 1093–1094.)
“Proof of the presence of one or more of these [mitigating] circumstances weighs greatly
in favor of dismissing the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” (§ 1385, subd. (c)(2); Mendoza, at p. 299;
Ortiz, at pp. 1093–1094.) The term “endanger public safety” is statutorily defined as “a
13.
likelihood that the dismissal of the enhancement would result in physical injury or other
serious danger to others.” (§ 1385, subd. (c)(2); Mendoza, at pp. 295–296; Ortiz, at
pp. 1093–1094.) There is no requirement for the trial court to consider particular factors
in determining whether dismissal would endanger public safety. (Mendoza, at p. 299.)
Together, section 1385, subdivisions (c)(1) and (c)(2) establish the following: (1) the
trial court has discretion to dismiss sentencing enhancements in the interests of justice;
(2) certain mitigating circumstances weigh greatly in favor of dismissal; and (3) a finding
of danger to public safety will overcome the mitigating circumstances. (See Mendoza, at
pp. 295–297; People v. Anderson (2023) 88 Cal.App.5th 233, 239, review granted
Apr. 19, 2023, S278786; People v. Lipscomb (2022) 87 Cal.App.5th 9, 18.)
A trial court’s decision whether to dismiss an enhancement pursuant to
section 1385, subdivision (c), is reviewed for an abuse of discretion. (Mendoza, supra,
88 Cal.App.5th at p. 298.) A trial court abuses its discretion if it acts so irrationally or
arbitrarily that no reasonable person could agree with its refusal to dismiss the prior
conviction. (People v. Carmony (2004) 33 Cal.4th 367, 376–377; see Mendoza, at
p. 299.) A trial court also abuses its discretion by basing its decision on an impermissible
consideration or on an incorrect legal standard. (People v. Knoller (2007) 41 Cal.4th 139,
156; see also People v. Nakano (2023) 89 Cal.App.5th 623, 635 [noting that an abuse of
discretion occurs when the trial court applies the “ ‘wrong legal standard’ ”].)
“ “ ‘Defendants are entitled to sentencing decisions made in the exercise of the ‘informed
discretion’ of the sentencing court.’ ” ” (People v. Flores (2020) 9 Cal.5th 371, 431
(Flores); People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).)
2. Section 1170, Subdivision (b)
Effective January 1, 2022, “when a sentencing court chooses a term from a
statutory triad, the chosen term shall not exceed the middle term, unless the facts
supporting the aggravating circumstances are (1) established by the defendant’s
stipulation to them, (2) proven to a jury (or to a court, if jury is waived) beyond a
14.
reasonable doubt, or (3) based on prior convictions evidenced by a certified record of
conviction.” (People v. Jones (2022) 79 Cal.App.5th 37, 44; see § 1170, subd. (b).)
However, while a court may rely on certified records of conviction without submitting
them to the jury, that exception “does not apply to enhancements imposed on prior
convictions.” (§ 1170, subd. (b)(3).)
3. Harmlessness
If a trial court’s sentencing choice is based on an erroneous understanding of the
law, then generally the matter must be remanded for the trial court to make an informed
determination. (People v. El (2021) 65 Cal.App.5th 963, 966; People v. Leon (2016)
243 Cal.App.4th 1003, 1023; see also Flores, supra, 9 Cal.5th at p. 432; Gutierrez, supra,
58 Cal.4th at p. 1391.) Remand is not required, however, if the record “ ‘ “clearly
indicate[s]” ’ ” that the trial court would have reached the same conclusion under the law
as it actually exists. (Flores, at p. 432; Gutierrez, at p. 1391; see People v. Banner (2022)
77 Cal.App.5th 226, 242.)
D. Analysis
1. Section 1385, Subdivision (c)
a. Abuse of Discretion
Defendant contends that the trial court had no rational basis to deny his motion to
strike the GBI enhancement. The People contend that the court’s rejection of defense
counsel’s request to strike the GBI enhancement and its reliance on two prior occasions
of GBI to justify a five-year sentence was in implicit determination that granting
dismissal would endanger public safety and would not be in the interests of justice. Both
positions accept, either through a silent assumption (the defendant) or through reliance on
alleged implicit findings (the People), that the court actually applied section 1385,
subdivision (c), to the GBI enhancement. After reviewing the record, we are not
convinced that the court followed or made any findings under section 1385,
subdivision (c).
15.
As described in detail above, the trial court no less than three times expressed the
opinion that Senate Bill 81’s amendments did not apply to defendant, and expressly held
that none of the new sentencing amendments identified by defense counsel, which clearly
included Senate Bill 81, applied to the sentencing issues raised by defendant. Rather, the
court stated that the sentencing issues involved what it termed to be a “traditional
Romero” analysis. The court expressed no caveats or limitations in this conclusion.
The trial court’s analysis of the motion to strike was also consistent with its
holding that Senate Bill 81 did not apply. The trial court relied on the facts and
circumstances of the current offenses and defendant’s substantial criminal history (which
included violent felonies and the infliction of GBI on others) and recognized that
defendant’s childhood was “horrific” and “awful,” but concluded that defendant did not
fall outside the spirit of the Three Strikes law. This was a proper Romero analysis.6 (See
People v. Williams (1998) 17 Cal.4th 148, 161 [holding that dismissal a prior strike is
appropriate upon a finding that the defendant falls outside the spirit of the Three Strikes
law and identifying factors to consider in making the determination].) The court later
noted two prior GBI enhancements. In contrast, the court did not purport to make
findings pursuant to section 1385, subdivision (c), or use that subdivision’s key terms.
For example, the court did not cite to section 1385, subdivision (c), did not use the term
6 We note that the trial court’s analysis under Romero with respect to the prior
strikes was appropriate both pre- and post-Senate Bill 81. Senate Bill 81 did not
materially change section 1385, subdivision (a), (cf. § 1385, former subd. (a) with
§ 1385, subd. (a).), which is the statutory basis for a motion to dismiss a prior strike.
(Romero, supra, 13 Cal.4th at pp. 529–530.) Senate Bill 81 amended section 1385,
subdivision (c), to expressly address “enhancements” and guide a court’s discretion.
(People v. Ortiz, supra, 87 Cal.App.5th at pp. 1093–1094.) The judicially established
definition of an “enhancement” is “ ‘an additional term of imprisonment added to the
base term.’ ” (People v. Jefferson (1999) 21 Cal.4th 86, 101; see People v. Burke (2023)
89 Cal.App.5th 237, 243.) The Three Strikes law is an alternative sentencing scheme; a
strike is not an enhancement. (People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn.2;
Burke, at p. 243.) Therefore, the Three Strikes law is not subject to amended
section 1385, subdivision (c). (Tilley, at p. 776, fn.2; Burke, at p. 243.)
16.
“great weight,” did not use the term “interests of justice,” did not identify any of the nine
mitigating circumstances of section 1385, subdivision (c)(2), even though at least three of
those circumstances appear to apply to defendant (§ 1385, subds. (2)(C), (D), (E)), and
did not state that striking the GBI enhancement would “endanger public safety.”7
The People argue that the trial court made an implicit finding under section 1385,
subdivision (c), that it would not be in the interests of justice, and the public would be
endangered, if the GBI enhancement was dismissed. However, this argument is contrary
to the record. Senate Bill 81’s application was raised as part of defendant’s supplemental
motion/sentencing memorandum and at oral argument, and defendant’s original motion
sought the dismissal of the strikes and the GBI enhancement. The court clearly stated
that the new laws did not apply to the sentencing issues raised by defendant, which means
that the court rejected Senate Bill 81’s application with respect to the GBI enhancement.
It is true that defense counsel stated that he reiterated the arguments of his written
submissions and, “as a point of emphasis,” asked the court to reconsider the five-year
upper term for the GBI enhancement and instead either strike the enhancement or
sentence to the lower term. The court implicitly declined the renewed request to strike
the enhancement. The court did not explain why it chose not to strike the GBI
enhancement or mention section 1385, subdivision (c), but did explain why it was
imposing the five-year upper term. The court’s response indicates that it was neither
dismissing the GBI enhancement nor changing its original analysis. Again, the court
disposed of the motion to strike and resolved defense counsel’s objections by conducting
a Romero analysis and noting that defendant had two prior convictions involving GBI.
Further, the appropriate considerations for imposing an upper term sentence are not
7 We do not hold that a sentencing court is required to use exact phrases in order
to make valid section 1385, subdivision (c), determinations. However, given the trial
court’s express ruling that the new sentencing amendments did not apply, the failure to
identify the statute or use key statutory language further shows that section 1385,
subdivision (c), was not followed.
17.
necessarily the same as the considerations for declining to dismiss an enhancement under
section 1385, subdivision (c). The analytical framework for choosing either the lower,
middle, or upper term is provided by section 1170 and is based on consideration of
aggravating factors (that must be found true beyond a reasonable doubt as part of a jury
or bench trial) and mitigating factors. (§ 1170, subd. (b).) In contrast, section 1385,
subdivision (c), requires a trial court to determine the interests of justice by examining
enumerated factors and considering whether the public would be endangered as a result
of dismissing the enhancement. (§ 1385, subd. (c).) Given the court’s express holdings,
statements, and rationale, we cannot say that the court made any implicit findings with
respect to section 1385, subdivision (c).
We also recognize that the trial court concluded as part of its Romero analysis that
defendant was a “clear and present danger to the members of this community.”
Admittedly, this language is very close to section 1385, subdivision (c)(2)’s “endanger
public safety” exception. However, this statement was part of a sentence in which the
court held that defendant was not outside the spirit of the Three Strikes law. The
statement is a justification for finding that dismissal of the two prior strikes was not
appropriate and that the more stringent baseline sentences established by the Three
Strikes law were justified. Moreover, the “clear and present danger” statement was made
after the court expressly stated that it would not follow the framework established by the
new laws, which included section 1385, subdivision (c). This means that the court did
not afford great weight to any of the statutorily identified mitigating factors, nor did the
court have to consider whether striking the enhancement (which unlike the two prior
strikes would not implicate an alternative sentencing scheme) would result in physical
injury or other serious danger to others. If the relevant factors were not weighed as
mandated, and the effect of the enhancement not specifically considered, then a finding
of “clear and present danger” cannot substitute for a finding of “public endangerment”
under section 1385, subdivision (c). For these reasons, we conclude that the court’s
18.
“clear and present danger” comment was not a finding under section 1385, subdivision
(c)(2), and could not be an equivalent finding of “public endangerment” under that
section.8
We acknowledge that in the face of a silent record it is presumed that a trial court
correctly followed the applicable the law. (People v. Carmony, supra, 33 Cal.4th at
p. 378; People v. Sullivan (2007) 151 Cal.App.4th 524, 549; People v. Gillispie (1997)
60 Cal.App.4th 429, 434.) However, the record in this case is not silent. The record
affirmatively shows that the trial court held that the new sentencing laws, and thus
section 1385, subdivision (c), did not apply to defendant, and the court’s analysis did not
indicate that section 1385, subdivision (c), was applied to defendant. Because the record
affirmatively demonstrates that the court failed to apply section 1385, subdivision (c), to
the GBI enhancement, we conclude that the trial court abused its discretion. (People v.
Nakano, supra, 89 Cal.App.5th at p. 635.)
b. Harmlessness
Although we have found an abuse of discretion, we will not remand if the record
clearly indicates that the trial court would have made the same decision under
section 1385, subdivision (c). (Flores, supra, 9 Cal.5th at p. 432; Gutierrez, supra, 58
Cal.4th at p. 1391.) We have reviewed the record and cannot conclude that it clearly
indicates the trial court would have refused to dismiss the GBI enhancement if the court
had applied section 1385, subdivision (c).
The record shows that the subdivision (c)(2)(C) mitigating factor of a resulting
sentence over 20 years due to the GBI enhancement applies and is thus, entitled to “great
weight.” (§ 1385, subd. (c)(2)(C).) Further, while additional findings by the court would
need to be made, it appears that subdivision (c)(2)(D) (offenses connected to mental
8 Again, we recognize that the trial court was aware of defendant’s criminal record
and was concerned about his dangerousness. However, the trial court’s conclusion that
Senate Bill 81 did not apply to defendant circumscribes the nature of our review.
19.
illness) and subdivision (c)(2)(E) (offenses connected to childhood trauma) also apply.
(§ 1385, subd. (c)(2)(D), (E).) It is thus, conceivable that the trial court could find that at
least three statutory mitigating factors greatly weigh in favor of dismissal of the GBI
enhancement.9
These factors would not be entitled to great weight, however, if the trial court
concludes that dismissing the enhancement would endanger public safety. (People v.
Mendoza, supra, 88 Cal.App.5th at p. 296; People v. Lipscomb, supra, 87 Cal.App.5th at
p. 18.) While the trial court has found that defendant was a “clear and present danger” to
the community, that finding is based on defendant’s present state and did not consider the
sentence that defendant would face without the enhancement. The analysis of section
1385, subdivision (c), requires a court to consider the danger posed to the public if the
court were to dismiss the enhancement. The court declined to dismiss the two prior
strikes, a ruling which has not been challenged on appeal. Because the two strikes were
not dismissed, defendant would be sentenced to 25 years to life as a third strike defendant
even without the GBI enhancement. (§ 667, subd. (e)(2)(A)(ii).) Since defendant was
given a little more than two years of presentence credit and he was 47 years old at the
time of sentencing, presumably the earliest defendant could be paroled would be when he
is around 70 years old. (See People v. Buckhalter (2001) 26 Cal.4th 20, 34 [noting that a
9 Defendant contends that dismissal of the GBI enhancement is mandatory under
section 1385, subdivision (c)(2)(C). We disagree. Subdivision (c)(2)(C) identifies as a
mitigating factor: “The application of an enhancement could result in a sentence of over
20 years. In this instance, the enhancement shall be dismissed.” (§ 1385, subd.
(c)(2)(C).) Despite its use of the mandatory term “shall,” the courts of appeal are in
agreement that, in the full context of section 1385, subdivision (c), a trial court is not
required to dismiss an enhancement through subdivision (c)(2)(C) if the court finds that
dismissing the enhancement would endanger public safety. (People v. Mendoza, supra,
88 Cal.App.5th at p. 297; People v. Anderson, supra, 88 Cal.App.4th at pp. 238–241,
review granted; People v. Lipscomb, supra, 87 Cal.App.4th at p. 18.) Therefore, the fact
that subdivision (c)(2)(C) may apply to defendant’s case does not per se mandate
dismissal of the GBI enhancement.
20.
third strike defendant was not eligible for postsentence worktime credits against his
indeterminate life sentence]; In re Cervera (2001) 24 Cal.4th 1073, 1080 [holding that a
third strike defendant was not eligible for postsentence good conduct credits against his
indeterminate life sentence].) If the GBI enhancement is not dismissed, then presumably
the earliest defendant could be paroled would be when he is around 75 years old. In
assessing the total sentence, the court found compelling defendant’s age when it decided
not to impose 10 consecutive additional years for the two nickel priors. Given the
advanced age that defendant would be either with or without the GBI enhancement upon
possible release, as well as the court’s consideration of age in its decision not to impose
an additional 10 consecutive years, it is unclear how the court would view defendant’s
age and circumstances in relation to the GBI enhancement for purposes of assessing
public endangerment under section 1385, subdivision (c).
In sum, we recognize that the trial court found that defendant fit within the spirit
of the Three Strikes law and was at the time of sentencing a “clear and present danger to
the community.” However, given the new framework required by section 1385,
subdivision (c), as well as the rulings and comments made by the court and the evidence
presented by defendant, we cannot conclude that the record clearly indicates that the
court would still decline to dismiss the GBI enhancement if it applied section 1385,
subdivision (c). (Flores, supra, 9 Cal.5th at p. 432; Gutierrez, supra, 58 Cal.4th at
p. 1391; People v. El, supra, 65 Cal.App.5th at p. 966.)
2. Section 1170, Subdivision (b)
For the same reasons discussed above, we conclude that the trial court did not
consider or apply amended section 1170, subdivision (b). The court expressly held that
the new laws did not apply to the sentencing issues raised by defense counsel. Therefore,
21.
we conclude that the court did not apply section 1170, subdivision (b), when it imposed
the five-year upper term for the GBI enhancement.10
With respect to harmlessness, the trial court identified no facts that were found by
the jury beyond a reasonable doubt when it imposed the upper term. The only rationale
identified was that defendant had twice before committed crimes that involved GBI.
While that information is reflected in the certified records of conviction, the section 1170,
subdivision (b)(3), exception “does not apply to enhancements imposed on prior
convictions.” (§ 1170, subd. (b)(3).) Therefore, section 1170, subdivision (b)(3),
prohibits the court from considering prior GBI enhancements through certified records of
conviction alone. (Ibid.) Given the limitation of section 1170, subdivision (b)(3), and the
sole reason identified by the court for imposing the upper term, we conclude that the
record does not clearly indicate that the trial court would have imposed the five-year
upper term even if it had followed section 1170, subdivision (b). (Flores, supra,
9 Cal.5th at p. 432; Gutierrez, supra, 58 Cal.4th at p. 1391; People v. El, supra,
65 Cal.App.5th at p. 966.)
3. Sentence
We have concluded that the trial court did not apply either section 1385,
subdivision (c), or section 1170, subdivision (b), when it imposed the five-year upper
term for the GBI enhancement. Further, the record does not clearly indicate that the court
would have made the same sentencing choices had it applied these laws. Thus, the five-
year term is infirm and will be stricken. As a result, “ ‘ a full resentencing as to all counts
is appropriate, so the trial court can exercise its discretion in light of the changed
10 Assuming arguendo that defense counsel did not adequately object, we do not
find forfeiture. The trial court repeatedly stated and expressly found that none of the new
sentencing laws identified by defendant, which included section 1170, subdivision (b),
applied to defendant. Given the court’s statements and ruling, we find that further
objection by defense counsel would have been futile. (People v. Wilson (2008)
44 Cal.4th 758, 793 [“A litigant need not object, however, if doing so would be futile”].)
22.
circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.) We express no opinion
as to how the trial court should exercise its discretion during the resentencing process.11
(People v. Jimenez (2019) 32 Cal.App.5th 409, 426.)
DISPOSITION
This matter is remanded for the trial court to conduct a full resentencing, including
consideration of the amendments to Senate Bill 81 and Senate Bill 357 to sections 1385
and 1170, respectively. The judgment is otherwise affirmed.
POOCHIGIAN, J.
WE CONCUR:
LEVY, Acting P. J.
FRANSON, J.
11 We do note, however, that the prohibition against double jeopardy “ ‘generally
prohibits the court from imposing a greater sentence on remand following an
appeal.’ ” (People v. Torres (2008) 163 Cal.App.4th 1420, 1432; see People v.
Craig (1998) 66 Cal.App.4th 1444, 1448 [“after successful appeal of a conviction a
defendant may not upon reconviction be subject to an aggregate sentence greater than
imposed at the first trial”].)
23.