People v. Sandwell CA3 ( 2023 )

Filed 8/28/23 P. v. Sandwell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
----
THE PEOPLE, C096795
Plaintiff and Respondent, (Super. Ct. No. 62146616)
v.
RONALD EUGENE SANDWELL,
Defendant and Appellant.
A jury found defendant Ronald Eugene Sandwell guilty of felony evading a peace
officer. (Veh. Code, § 2800.2.) (Statutory section citations that follow are found in the
Vehicle Code unless otherwise stated.) The trial court found true allegations that
defendant had been convicted of multiple serious or violent felonies for purposes of the
Three Strikes law, and it imposed an indeterminate sentence.
Defendant contends the trial court prejudicially erred by: (1) admitting evidence
of a similar evasion he committed after this offense; (2) not giving a unanimity
instruction; (3) allowing the prosecution to amend the information’s prior conviction
allegations after the jury had been dismissed when the original information allegedly did
not notify defendant of his exposure to an indeterminate sentence; and (4) denying his
motion to strike the prior strike allegations.
1
We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
A. Prosecution case
Roseville police officers stopped defendant near Atkinson Street late on the night
of February 15, 2016. He was driving a Chevy Impala with an expired registration.
Defendant turned the car off. He told the officers the registration was expired because he
had recently purchased the car. He gave one of the officers the car’s pink slip and other
paperwork from the purchase.
During this exchange, the second officer saw what appeared to be a baseball-sized
bag of methamphetamine under defendant’s leg. The officer told the first officer to pull
defendant out of the car. The first officer asked defendant to step outside the vehicle, but
defendant started the car and sped away. The Impala’s tires screeched as defendant drove
away westbound on Atkinson Street. The officers stepped back to avoid being hit.
The officers sprinted back to their car and gave pursuit with the car’s flashing
lights and siren on. Westbound Atkinson Street becomes PFE Road. The speed limit on
Atkinson Street/PFE Road is 45 miles per hour. The officers were going 85 miles per
hour, and defendant was going faster than that. The second officer testified their vehicle
reached 90 miles per hour. He estimated defendant reached over 100 miles per hour
immediately after he took off, and he maintained that speed throughout the pursuit.
Defendant ran three stop signs while being pursued. He ran the stop signs at PFE
Road’s intersections with Antelope Road, Cook Riolo Road, and Pinehurst Drive. After
chasing defendant for nearly three miles, the officers ended the pursuit between PFE
Road’s intersections with Pinehurst Drive and Walerga Road, the next major intersection,
because they had lost sight of the Impala’s taillights.
Approximately eight months later, Sacramento police officers apprehended
defendant after a high-speed chase. On the evening of October 8, 2016, the officers saw
2
a silver Maserati driven by defendant that had no front license plate. They attempted to
make a vehicle stop, but defendant speeded up. He drove recklessly. At one point, he
drove into oncoming traffic. He drove into the bicycle lane to pass cars. The officers
pursued defendant at 99 miles per hour, but defendant pulled away from them. One
officer estimated defendant was traveling at well over 100 miles per hour. The officers
ended the pursuit for safety reasons.
Later that evening, the officers received a dispatch that the Maserati had crashed.
Defendant was eventually located and arrested. In an interview with Sacramento police
officers, defendant stated, “I seen you turn and I knew you were gonna get on me [¶] . . .
[¶] I got up to 145 on the freeway but uh I will try to drive fast. I figure at the next turn,
imma lose you and I did.”
B. Defense
Defendant testified on his own behalf. He admitted that for the Sacramento
incident, he was convicted of felony evading and for being a felon in possession of a
firearm and ammunition. (§ 2800.2; Pen. Code, §§ 20800, 30305.) At the time of the
Sacramento incident, defendant knew there was a warrant out for his arrest for the
Roseville incident. When the Sacramento officers began following him, he decided,
“ ‘I’m going for it. I’m going to run.’ ” He passed two cars while driving in the bicycle
lane. He denied driving in the opposite lane of traffic. He admitted driving at 100 miles
per hour in a 45-miles-per-hour speed limit zone and that driving at that speed was
reckless. He admitted crashing the Maserati. He admitted running from the police and
being arrested after crashing the car.
Defendant testified that during his interview with Sacramento police, he told the
officers he ran from them because there was a warrant out for his evading police in Placer
County in his Impala. He also told the officers that in the Placer County chase, he spun
out while trying to turn onto Walerga Road. Defendant asserted he made that statement
3
to the officers because his buddy had heard on a police scanner that the high-speed chase
ended on Walerga Road.
Testifying about the Roseville incident, defendant stated that at the time of that
chase, he was driving to his buddy’s in Roseville to drop off a saw. He pulled over after
seeing the police lights behind him. He turned off the car, and he handed the paperwork
to the first officer. The second officer then said to pull defendant out of the car, and he
yelled the command a second time. Defendant was shocked by the officer’s tone of voice
and did not know why he was yelling. He did not have anything under his leg. He
started the car, put it in gear, and took off.
Defendant testified he did not drive to Walerga Road during the chase. He
decided to turn onto a side street to lose the officers. He turned left onto March Road and
stopped the car. When heading westbound on Atkinson Street/PFE Road, March Road
intersects with PFE Road before the Antelope Road intersection. Officers testified the
first stop sign defendant ran was at the Antelope Road intersection. After defendant saw
the officers drive past March Road, he drove back onto Atkinson Street/PFE Road and
headed east toward his buddy’s house. Defendant admitted he had been speeding, but he
denied committing any other Vehicle Code violations, including running the three stop
signs.
C. Rebuttal
One of the Roseville officers that pursued defendant testified on rebuttal that he
never saw defendant’s car brake or slow down during the pursuit. He never saw the
Impala turn left onto March Road. He heard and saw the Impala continue on PFE Road
past March Road and go through the three stop signs.
4
D. Verdict and sentence
The jury found defendant guilty of felony evading a peace officer in willful
disregard for safety. (§ 2800.2.) The trial court found true allegations that defendant had
been convicted of eight serious or violent felonies for purposes of Three Strikes.
The trial court denied defendant’s Romero motion to strike the serious priors.
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) It sentenced defendant to a
prison term of 25 years to life.
DISCUSSION
I
Admission of Other Crimes Evidence
The trial court admitted evidence of the Sacramento car chase and arrest under
Evidence Code section 1101, subdivision (b) for establishing defendant’s intent and a
common design or plan in the Roseville incident. The court found that the evidence was
not unduly prejudicial under Evidence Code section 352.
Defendant contends the Sacramento incident did not demonstrate the existence of
a common design or plan. He provides no further argument on this point in his opening
brief. His lack of argument forfeits the issue on appeal. (Allen v. City of Sacramento
(2015) 234 Cal.App.4th 41, 52.)
Defendant further contends the trial court committed prejudicial error by admitting
the Sacramento incident evidence to establish intent. He does not claim the evidence was
too dissimilar to be admitted under Evidence Code section 1101, subdivision (b). Rather,
he claims his intent was not at issue and the evidence was cumulative.
Section 2800.2, the felony evading statute under which defendant was convicted,
prohibits evading a pursuing peace officer with willful or wanton disregard for the safety
of persons or property. (§ 2800.2, subd. (a).) Willful or wanton disregard for safety
5
includes, but is not limited to, committing three or more traffic violations while fleeing
which are assigned a traffic violation point count. (§ 2800.2, subd. (b).)
Defendant argues that if the jury believed he fled from Roseville police as far as
Walerga Road and ran three stop signs, his guilty intent was established under the terms
of the statute. But if the jury believed defendant turned onto March Road, stopped his
car, and then returned to Roseville, defendant asserts there was a reasonable argument he
did not drive recklessly or commit a felony evading. He claims there was no middle
ground from which the jury could conclude defendant committed felony evading without
the requisite criminal intent. And he argues the issue was factual, and his presumed or
inferred state of mind played no role in the jury’s decision. Finally, he says evidence of
the Sacramento incident was cumulative and thus irrelevant on the issue of intent.
Defendant relies on People v. Balcom (1994) 7 Cal.4th 414 (Balcom). In Balcom,
the prosecution argued that evidence showing the defendant had committed rape in
Michigan two months after committing the charged rape in California and had done so in
a similar manner was admissible to establish intent for the charged rape. (Id. at p. 421.)
The California Supreme Court disagreed. It found that the other-crime evidence had
“limited probative value” on the issue of intent which was “outweighed by the substantial
prejudicial effect of such evidence.” (Id. at p. 423.)
The Balcom court acknowledged that the defendant’s not guilty plea placed all
elements of the charged crime at issue, including intent. (Balcom, supra, 7 Cal.4th. at
pp. 422-423.) But given the facts presented—the victim testified defendant raped her
after placing a gun to her head, while the defendant conceded the two had sex but
claimed it was consensual and did not involve a gun or force—the “wholly divergent
accounts create[d] no middle ground from which the jury could [have] conclude[d] that
defendant committed the proscribed act of engaging in sexual intercourse with the victim
against her will by holding a gun to her head, but lacked criminal intent because, for
example, he honestly and reasonably, but mistakenly, believed she voluntarily had
6
consented.” (Id. at p. 422.) Because the victim’s testimony of being raped at gunpoint, if
believed, established the requisite intent, admitting evidence of the defendant’s
uncharged similar offenses would be cumulative on that issue. (Id. at p. 423.)
The circumstances here are different than those in Balcom. Unlike in Balcom,
where the evidence left “no middle ground” for the jury between a finding of rape with
the requisite intent and a finding of not guilty (Balcom, supra, 7 Cal.4th at p. 422), the
evidence of defendant’s intent was not so unambiguous that the trial court could conclude
the prosecution, in essence, was relieved of proving the element of defendant’s unlawful
intent.
To establish defendant violated section 2800.2, the prosecution had to prove
defendant (1) willfully fled a pursuing peace officer’s vehicle with the intent to evade,
and (2) drove his vehicle “in a willful or wanton disregard for the safety of persons or
property.” (§ 2800.2, subd. (a); People v. Taylor (2018) 19 Cal.App.5th 1195, 1201.)
Under the statute, the prosecution could establish defendant drove in willful or wanton
disregard for the safety of persons or property by showing he either drove in a manner
manifesting the mental state required to commit reckless driving in violation of
section 23103 or, alternatively, he committed three or more traffic violations that are
assigned traffic violation points. (§ 2800.2, subd. (b); Taylor, at p. 1203.)
The prosecution argued to the jurors that some of them could agree defendant
drove in willful or wanton disregard, and the others could agree defendant committed
three or more traffic violations during the chase. Unanimity was not required on either of
these elements; each juror had to find at least one of them true.
Thus, if the jury agreed with defendant that he did not run the three stop signs and
instead turned onto March Road, acquittal was not the jury’s only choice. Defendant’s
claim—if he did not run the stop signs, he did not commit felony evading—is incorrect.
The jury could still convict defendant for felony evasion by his driving recklessly in
violation of section 23103 from the moment he drove away from the vehicle stop.
7
There was substantial evidence that defendant harbored the intent to commit
reckless driving. He took off fast. His tires screeched when the officers were mere
inches from his car, causing the officers to jump back to avoid being hit. As the pursuit
began, the officers were about a quarter mile behind him. The posted speed limit at that
point was 45 miles per hour. As the officers reached the point where Atkinson Street
turned into PFE Road, their car was going 85 or 90 miles per hour, and defendant was
pulling away from them, as he had been the entire pursuit. The second officer estimated
defendant was traveling at over 100 miles per hour and had reached that speed
immediately after he took off.
Because reckless driving was an alternate set of facts to establish defendant’s
intent, his intent remained at issue even if he did not run the three stop signs. Hence,
evidence of the Sacramento incident was relevant to establishing defendant’s intent by
showing defendant harbored the same intent in the Sacramento incident as he did in the
Roseville incident. The evidence was not cumulative “because the balance of the
evidence does not render [defendant’s] intent and actions beyond dispute.” (People v.
Foster (2010) 50 Cal.4th 1301, 1331.)
Defendant nonetheless claims the trial court erred by determining evidence of the
Sacramento incident was not unduly prejudicial under Evidence Code section 352.
Defendant does not argue the point on its merits. Rather, he argues that despite the
court’s giving the jury a limiting instruction on how they could use the evidence, the jury
likely used the evidence as propensity evidence in violation of Evidence Code
section 1101, subdivision (a). Defendant cites no evidence in the record that would
support this argument.
The court instructed the jurors that they could use the evidence only for the limited
purpose of establishing intent or common scheme or plan. With no evidence to the
contrary, we presume the jury followed the instruction. (People v. Washington (2017)
15 Cal.App.5th 19, 26.) The trial court did not abuse its discretion admitting evidence of
8
the Sacramento incident because the evidence demonstrated defendant’s intent and the
existence of a common design or plan, it was not cumulative on the issue of intent, and,
without evidence to the contrary, the jury is deemed to have complied with the court’s
limiting instruction.
II
Lack of Unanimity Instruction
A criminal jury must unanimously agree the defendant is guilty of a specific
crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Generally, if the prosecution
introduces evidence of multiple discrete crimes to prove a single count, either the
prosecution must elect among the crimes or the trial court must instruct the jury to agree
on the same criminal act. (Ibid.)
Defendant contends the trial court erred by denying his request for a unanimity
instruction. He argues a unanimity instruction was required because under
section 2800.2, willful or wanton disregard for the safety of persons or property can be
established by showing alternative crimes based on competing theories—reckless driving
or three or more traffic violations. Although defendant asserts the jury would not have
convicted him of felony evasion if they believed he did not run the three stop signs during
the pursuit, a point we dispute, he claims jury unanimity was necessary because there
were two competing factual scenarios supported by separate legal theories.
The trial court did not err in rejecting defendant’s request for a unanimity
instruction. A unanimity instruction is appropriate “ ‘when conviction on a single count
could be based on two or more discrete criminal events,’ but not ‘where multiple theories
or acts may form the basis of a guilty verdict on one discrete criminal event.’ ” (People
v. Russo, supra, 25 Cal.4th at p. 1135.) The instruction is not required when the evidence
“merely presents the possibility the jury may divide, or be uncertain, as to the exact way
the defendant is guilty of a single discrete crime.” (Ibid.)
9
Defendant’s discrete criminal event was his unlawful flight from Roseville police.
The flight was continuous and not broken into discrete criminal events. The individual
offenses defendant committed during the pursuit—running three stop signs, speeding, and
possibly reckless driving—were the basis for satisfying section 2800.2’s element of
willful or wanton disregard for safety of persons or property, not separate chargeable
offenses under section 2800.2. Divisions by the jury over these predicate crimes would
be disagreements on the manner defendant evaded police in willful or wanton disregard
of safety, not discrete criminal events of felony evasion.
Our reasoning mirrors that of People v. Varela (2011) 193 Cal.App.4th 1216 and
People v. Datt (2010) 185 Cal.App.4th 942, opinions the trial court relied on to reject
defendant’s request for a unanimity instruction. The defendants in both cases were
convicted of felony evasion under section 2800.2. In Varela, the defendant, while
evading police on a “pocket bike,” did not stop at stop signs, failed to signal before
turning, and drove on the wrong side of the road and on the sidewalk. (Varela, at
p. 1218.) In Datt, the evading defendant disregarded multiple stop signs and two stop
lights, broke traction with the asphalt, drove on the shoulder, twice drove in the opposite
lane of traffic, and drove at speeds between 45 and 100 miles per hour in a 25-mile-per-
hour zone. (Datt, at p. 945.) Both defendants argued their juries had to agree
unanimously on which traffic law violations were the predicate offenses under
section 2800.2. (Varela, at p. 1220; Datt, at p. 949.)
Both Courts of Appeal disagreed with the defendants. A unanimity instruction
was not required “merely because the jury may be divided on the exact way the defendant
may be guilty of the charged count. [Citation.] Here the evidence shows but a single
violation of section 2800.2. No unanimity instruction is required simply because the jury
may not have agreed on the predicate violations.” (People v. Varela, supra,
193 Cal.App.4th at p. 1220.) “[N]o unanimity instruction was required because the
predicate violations were simply alternate ways of proving a necessary element of the
10
charged offense.” (Ibid.) “The different Vehicle Code violations upon which the ‘willful
or wanton’ element could have been premised were simply ‘alternate ways of proving’
that element, not separate chargeable offenses of reckless evading.” (People v. Datt,
supra, 185 Cal.App.4th at p. 950.)
Defendant contends Varela and Datt do not apply because there were two distinct
criminal events which could have supported his conviction—either the officer’s scenario
of running three stop signs and speeding, or defendant’s scenario of just speeding.
Defendant claims the latter scenario, if relied on by the jury, was a different offense than
that described by the Roseville officers.
The argument fails. No matter which scenario the jurors found true—reckless
driving or traffic violations—both scenarios were alternate ways of proving the single
element of willful or wanton disregard of safety. “Juror unanimity is not required simply
because different theories of liability are presented.” (People v. Napoles (2002)
104 Cal.App.4th 108, 115, fn. 5.)
Another related point of law justifies the trial court’s decision not to give a
unanimity instruction. A court is not required to give a unanimity instruction if the crime
constitutes a continuous course of conduct. (People v. Maury (2003) 30 Cal.4th 342,
423.) This occurs when, among other times, “ ‘the acts are so closely connected that they
form part of one and the same transaction, and thus one offense.’ ” (People v. Napoles,
supra, 104 Cal.App.4th at p. 115.)
In that circumstance, this exception applies if the defendant tenders the same
defense or defenses to each act closely connected in time and there is no reasonable basis
for the jury to distinguish between them. (People v. Crandell (1988) 46 Cal.3d 833, 875,
abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365;
People v. Datt, supra, 185 Cal.App.4th at p. 951.)
The court in Datt ruled that this exception applied to its facts, and we agree the
exception applies here. (People v. Datt, supra, 185 Cal.App.4th at p. 951.) Defendant’s
11
acts were committed during the pursuit, which lasted for only 2.8 miles at speeds over 90
miles per hour. There was no reasonable basis for the jury to distinguish between the
various violations. They all occurred during one dangerous short drive. And defendant’s
defense was the same as to all the acts—he was afraid of the tone of voice taken by the
officers when they demanded he get out of the car, and he did not run the stop signs
because he turned off early. The trial court was not required to give a unanimity
instruction under these circumstances.
III
Notice of Exposure to Indeterminate Sentence
Generally, a defendant who has two or more strike priors and whose current
offense is not a serious or violent felony is sentenced under the Three Strikes law to twice
the term provided for punishment of the current offense, as if the defendant had only one
strike prior. (Pen. Code, § 667, subd. (e)(2)(C), (e)(1).) But if the prosecution pleads and
proves the defendant was previously convicted of certain sexually violent offenses
(“super strikes”), the defendant is sentenced to the third strike sentence of an
indeterminate life term with a minimum term that is the largest of three possible
sentences, which in this case was an indeterminate term of 25 years to life. (Pen. Code,
§§ 667, subd. (e)(2)(A), (e)(2)(C)(iv)(I); 1170.12, subd. (c)(2)(A), (c)(2)(C)(iv)(I).)
Some of defendant’s prior convictions were super strike sexually violent offenses.
Although the information alleged defendant was eligible for a sentence under the Three
Strikes law, the prosecution sought leave to amend the information following the jury’s
verdict and after the jury was discharged to allege the super strike provisions under which
defendant qualified for the indeterminate term. The trial court granted the prosecution’s
motion and sentenced defendant to the indeterminate term.
Defendant contends he was denied his due process right to notice in these
circumstances of the laws under which he would be sentenced.
12
A. Background
The original information alleged that defendant had previously been convicted of
nine separately identified serious or violent felonies for purposes of the Three Strikes law
under Penal Code section 667, subdivisions (b) through (i), and section 1170.12,
subdivisions (a) through (d). The information alleged that in 1980, defendant was
convicted of one count of robbery. (Pen. Code, § 211.) The information also alleged that
in 1985, defendant was convicted of assault with a deadly weapon, forcible sexual
penetration while armed with a firearm, forcible rape in concert while armed with a
firearm, forcible sodomy while armed with a firearm, two counts of robbery while armed
with a firearm, attempted forcible rape in concert, and attempted forcible sodomy in
concert. (Pen. Code, §§ 245, subd. (a)(1); 289; 264.1; 211; 664/264.1; 664/286,
subd. (d).)
For jury selection, each side was given 20 peremptory challenges due to the
sentencing exposure. During pretrial matters, the prosecutor stated defendant was being
charged with “a life crime.” The prosecutor also said defendant “knows that he’s doing a
life sentence, and he knows that he’s pending another life sentence here.”
Following the jury’s verdict, defendant waived his right to a jury trial on the
bifurcated strike prior allegations. The court discharged the jury.
The prosecutor then moved to amend the information. The proposed amendment
reduced the number of strike priors to eight, deleting the alleged conviction of forcible
sodomy while armed with a firearm. Otherwise, it charged the same strike priors that
were alleged in the original information pursuant to Penal Code sections 667,
subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
The proposed amendment also alleged that defendant was eligible for a Three
Strikes life sentence under Penal Code sections 667, subdivision (e)(2)(C)(iv)(I) and
1170.12, subdivision (c)(2)(C)(iv)(I), the super strike provisions. Defendant’s prior
13
convictions under Penal Code sections 264.1, 286, and 289 qualified as sexually violent
offenses for purposes of this exception. (Pen. Code, § 667, subd. (e)(2)(C)(iv)(I); Welf.
& Inst. Code, § 6600, subd. (b).)
Initially, the parties agreed that the prosecutor could make the motion to amend
orally at the beginning of the bifurcated trial. But to avoid confusion, the prosecutor
asked the court for time to file a written motion, and the court agreed. The court said that
if defendant then wanted to object to the motion, it would hear the argument.
At the hearing on the motion, defendant objected. He planned to ask the court at
sentencing to sentence defendant as a two-strike defendant under Penal Code section 667,
subdivision (e)(1), so he would be asking the court essentially to strike the amendment to
the information. Defendant argued that new legislation effective the following year
would give the court more discretion to strike serious priors, so the court might not want
to restrict itself in sentencing just to the statute alleged in the amendment.
The prosecutor argued in effect that even without the amendment, the Three
Strikes sentence would still be alleged because the information alleged defendant
suffered serious priors under Penal Code section 667, subdivisions (b) through (i), which
included the super strike provisions. That allegation would also include sentencing
defendant on any other applicable provision of the Three Strikes law if the court so
found. The prosecutor proposed the amendment to ensure the proper code section for
sentencing was specifically alleged. Defendant had been aware the entire time this case
was a life case, as evidenced by the number of preemptory challenges the parties had at
jury selection.
The trial court granted the motion to amend, and the court trial proceeded. The
court found defendant had been convicted of the eight serious priors alleged in the
amended complaint within the meaning of the Three Strikes law, including Penal Code
sections 667, subdivision (e)(2)(C)(iv) and 1170.12, subdivision (c)(2)(C)(iv), the super
strike provisions.
14
The court sentenced defendant to 25 years to life. The sentence is consecutive to
defendant’s sentence for the Sacramento incident of 50 years to life.
B. Analysis
Defendant contends the information did not provide him with adequate notice that
the prosecution would seek the third strike indeterminate sentence against him. He
argues that although the original information properly pleaded his prior strikes and the
sentence-doubling consequence, it did not expressly allege the statutes under which his
priors qualified as super strikes and which subjected him to the third strike sentence. The
amended information, which expressly alleged the super strike exception, was not filed
until after the verdict and after the jury was discharged. And any awareness defendant
may have had during trial that the prosecution was seeking an indeterminate term was
inadequate without the express allegation in the information.
Although the Attorney General contends defendant has forfeited this argument by
not objecting at trial on the ground he raises here, we choose to address the merits of his
argument because if he is correct, his sentence is unauthorized.
“A defendant has a due process right to fair notice of the allegations that will be
invoked to increase the punishment for his or her crimes.” (People v. Houston (2012)
54 Cal.4th 1186, 1227; see People v. Mancebo (2002) 27 Cal.4th 735, 747.) The Three
Strikes law sets forth what constitutes fair notice that the prosecution seeks a third strike
sentence even though the current offense is not a strike. The prosecution must plead and
prove (1) the defendant has two or more prior strikes; and (2) “ ‘any’ of the exceptions to
second strike sentencing eligibility listed in subdivision (e)(2)(C)(i) through (iv) apply.”
(People v. Tennard (2017) 18 Cal.App.5th 476, 486.)
These requirements do not obligate the prosecution to plead the specific
subsection under which the current nonstrike offense will be sentenced as a third strike.
“The plain language of section 667, subdivision (e)(2)(C) only requires the prosecution to
15
‘plead and prove’ that ‘any’ of the exceptions to second strike sentencing eligibility set
forth in subparagraphs (i) through (iv) apply. Neither subdivision (e)(2)(C) nor any other
part of section 667 requires the prosecution to specifically ‘plead and prove’ that an
exception applies by using any particular language or by referencing the particular
subparagraph of the exception or disqualifying factor.” (People v. Tennard, supra,
18 Cal.App.5th at p. 486.)
The original information met this standard. It identified prior strike convictions
for Penal Code sections 264.1, 286, and 289 which qualified as super strikes, and it
referred to Penal Code sections 667, subdivisions (b) through (i) and 1170.12,
subdivisions (a) through (d). These allegations were sufficient to satisfy the statute’s
pleading and proof requirements because they put defendant on notice that his prior
convictions could be used as the basis for three strikes sentencing. A specific reference
to section 667, subdivision (e)(2)(A) or (C) was not required.
Defendant contends the information was inadequate under the holdings of People
v. Mancebo, supra, 27 Cal.4th at pages 744-745, People v. Nguyen (2017)
18 Cal.App.5th 260, 266, and People v. Saywers (2017) 15 Cal.App.5th 713, 723. These
cases are distinguishable. In each case, the statutory enhancements used as a basis for
imposing an enhanced sentence were either not alleged at all or were insufficiently
alleged. (See Mancebo, at pp. 738-739, 742-745 [unalleged multiple-victim circumstance
enhancement could not be basis for imposing “one strike” sentence despite the pleaded
facts]; Nguyen, at pp. 262-263 [strike prior alleged as strike but not as a serious prior
enhancement could not be basis for imposing the latter enhancement]; Saywers, at
pp. 726-727 [information did not allege prior conviction as a strike].)
In addition to his understanding from the original information, defendant knew he
was facing a possible indeterminate sentence when trial commenced. Because of his
sentencing exposure, each side was given 20 peremptory challenges for jury selection.
The prosecutor also stated at least twice that defendant was facing a life sentence. These
16
facts, along with the allegations in the information, establish that defendant received fair
notice of his possible third strike sentence.
IV
Denial of Romero Motion
Defendant challenges the trial court’s denial of his Romero motion to dismiss his
strike priors. (Pen. Code, § 1385, subd. (a).) He states the trial court’s analysis was
correct in a number of respects. The court correctly found that although he has a history
of violence, the violence has not increased in seriousness since 1985. The court also
correctly gave great weight to the nonviolent nature of the current offense, the fact that
his strike priors were over five years old, and the fact that the 1980 robbery adjudication
occurred when defendant was a juvenile.
Defendant argues the trial court abused its discretion by not giving proper weight
to other relevant sentencing factors. He claims the court (1) misconstrued his future
prospects to his detriment; (2) did not consider the remoteness of his strike priors; and
(3) decided incorrectly not to apply Penal Code section 1835, subdivision (c)(2)(C),
which requires courts to dismiss any “enhancement” that results in a sentence of over 20
years.
We review the trial court’s denial of a motion to strike a prior conviction under the
deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367,
374.) The defendant must show that the court’s decision was “so irrational or arbitrary
that no reasonable person could agree with it.” (Id. at p. 377.)
“A trial court deciding, or appellate court reviewing the decision, whether to strike
a prior felony conviction allegation under [Penal Code] section 1385, subdivision (a),
‘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
17
whole or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.’ (People v. Williams (1998)
17 Cal.4th 148, 161 [].) ‘[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 . . . .” ’ ([People v.] Carmony, supra, 33 Cal.4th at p. 378.) As such, in
reviewing the trial court’s decision, ‘the circumstances where no reasonable people could
disagree that the criminal falls outside the spirit of the three strikes scheme must be even
more extraordinary.’ (Ibid.)” (People v. Mendoza (2022) 74 Cal.App.5th 843, 856-857.)
Two of the factors that defendant contends the trial court did not properly weigh,
remoteness of his strikes and his sentence exceeding 20 years, arise under Penal Code
section 1385, subdivision (c) (subdivision (c)). This subdivision lists a number of
mitigating factors a court must consider before imposing an enhancement. Our court has
held that subdivision (c)’s provisions do not apply to Three Strikes sentencing, as prior
convictions are not enhancements. (People v. Burke (2023) 89 Cal.App.5th 237, 244.)
Nonetheless, had subdivision (c) applied, the trial court did not abuse its discretion
in its consideration of those factors. The court considered that defendant’s strike priors
were remote by being over five years old and that his 1980 robbery prior occurred when
defendant was a juvenile. (Pen. Code, § 1385, subd. (c)(2)(G), (H).) The court also gave
great weight to these facts. It did not abuse its discretion in its analysis or application of
these factors.
The trial court also did not abuse its discretion concerning the fact defendant’s
sentence would be more than 20 years. Under subdivision (c), the fact that applying the
enhancement could result in a sentence of over 20 years is a factor entitled to great
weight in favor of dismissing the enhancement. (Pen. Code, § 1385, subd. (c)(2)(C).)
Although the statute states that in such an instance, the enhancement must be dismissed,
the trial court interpreted the provision as not eliminating the court’s discretion.
18
Defendant asserts the trial court erred in claiming discretion not to apply the 20-
year provision. He is incorrect. The factor is a mitigating circumstance for the court to
consider in exercising its discretion to strike an enhancement in furtherance of justice. It
need not be considered when the court finds dismissing the enhancement would endanger
public safety. (People v. Lipscomb (2022) 87 Cal.App.5th 9, 18-19.) The trial court
correctly interpreted the provision and, as required by the statute, gave the factor great
weight. It did so even though it ultimately found that dismissing the strike allegations
would endanger public safety.
Finally, defendant contends the trial court misconstrued his “future prospects”
because it misapprehended the length of his sentence for the Sacramento incident. His
probation report, which the trial court considered, stated his Sacramento sentence was 25
years to life, when in fact it was 50 years to life. Defendant claims that as a result, the
“net effect” of the life sentence in this matter was greater than the court recognized.
Defendant argues the trial court would have been justified in striking the prior
convictions in this case because they had been accounted for in the Sacramento case.
That sentence already made it unlikely defendant would ever return to society, and if he
did, his prospects for committing future offenses would be significantly diminished.
The trial court did not abuse its discretion in the manner it considered defendant’s
future prospects. The trial court was not unaware of defendant’s sentence in the
Sacramento incident. The prosecutor’s sentencing briefs, which the court read and
considered, correctly stated that defendant’s Sacramento sentence was 50 years to life.
Moreover, the court considered defendant’s future prospects as a law-abiding and
contributing member of society, not just whether his prospects for committing offenses in
the future would be diminished. It stated that although defendant wanted to become a
productive member of society, his prospects for a stable, crime-free life were “difficult”
due to his history of criminal convictions and incarceration, which extended beyond his
strike priors. Defendant had some prospect of employment because he had prior
19
experience in the sandblasting business, but his prospects would be limited due to his
criminal history. By conducting this analysis, the trial court did not abuse its discretion
in analyzing defendant’s future prospects as part of ruling on defendant’s Romero
motion.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
ROBIE, J.
HORST, J.*
* Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
20