People v. Garris CA6 ( 2024 )

Filed 2/20/24 P. v. Garris CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050410
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1502269)
v.
DAVID ALLEN GARRIS,
Defendant and Appellant.
I. INTRODUCTION
A jury convicted defendant David Allen Garris of carjacking (Pen. Code, § 215;
count 1),1 attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); count 2),
and assault with a deadly weapon (§ 245, subd. (a)(1); count 3), and found true the
allegation that defendant personally used a dangerous or deadly weapon during the
commission of the assault (§§ 667, 1192.7). Defendant admitted allegations that he had
sustained two prior strike convictions (§§ 667, subds. (b)–(i), 1170.12), two prior serious
felony convictions (§ 667, subd. (a)), and two prior prison terms (§ 667.5, subd. (b)).
The trial court denied defendant’s motion to strike the prior strike convictions pursuant
to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and sentenced
defendant to an aggregate term of 37 years to life.
1
All further statutory references are to the Penal Code.
In 2021, this court conditionally reversed the judgment and remanded the matter
for the trial court to conduct a mental health diversion eligibility hearing and to determine
whether to exercise its discretion to strike defendant’s prior serious felony convictions for
sentencing purposes, additionally allowing defendant to renew his Romero motion at the
resentencing hearing. (People v. Garris (Apr. 21, 2021, H045657) [nonpub. opn.].)
Upon remand, the trial court declined to grant defendant mental health diversion,
finding he presented “a risk to public safety.” Defendant then renewed his Romero
motion, asking the trial court to exercise its discretion under section 1385 to dismiss the
allegations of defendant’s prior felony strike convictions. The trial court denied this
motion, similarly concluding that defendant represented a “continuing risk to our
community.”
Defendant now contends: (1) he received ineffective assistance of counsel at
resentencing because his counsel did not ask the trial court to strike his two five-year
enhancements for prior serious felony convictions; (2) he received ineffective assistance
of counsel at resentencing because his counsel did not ask the trial court to stay his
sentence for the carjacking count in favor of a shorter sentence on one of the remaining
counts; and (3) the trial court abused its discretion when it denied his Romero motion.
For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND2
A. Prosecution Case
On January 17, 2015 at approximately 5:00 p.m., J.V. was visiting a friend outside
of the friend’s motorhome in a homeless encampment in San Jose. At some point, J.V.
heard screaming coming from inside a trailer approximately 20 to 25 feet away. Five or
2
The first three sections of this background are taken verbatim from this court’s
opinion in defendant’s initial appeal. We grant defendant’s request to take judicial notice
of this opinion. Both parties’ briefs utilize the background summary from this court’s
prior opinion as an accurate representation of developments at trial.
2
10 minutes later, defendant came out of the trailer. Defendant walked directly toward
J.V., who was seated. Defendant screamed at J.V., asking him where he was from and
demanding that he give defendant money. J.V. had never seen defendant before.
Defendant picked up a shovel, walked up to J.V., leaned over, and put his forehead
against J.V.’s forehead. Defendant raised the shovel in a threatening manner, as if he was
going to hit J.V. with it. The force from defendant’s forehead caused J.V. to fall off his
chair. Defendant dropped the shovel and tried to take J.V.’s wallet by pulling it from
J.V.’s pants while J.V. was on the ground. J.V. took his wallet out and gave defendant
$50 because he was afraid. When J.V. handed defendant the money, defendant reached
into J.V.’s pocket, grabbed J.V.’s keys, and left in J.V.’s pickup truck.
J.V. frantically flagged down a police officer and pointed to his truck as defendant
drove away down Monterey Road. Traveling at approximately 100 miles per hour in
moderate traffic, defendant sped past another officer, attempted to make a righthand turn
at a high rate of speed, and crashed into an embankment, where he was apprehended.
B. Defense Case
Defendant testified that he had been on medication since he was 10 years old when
he was diagnosed with hyperactive attention deficit disorder. Defendant also started
using alcohol, marijuana, and methamphetamine when he was “really young.” Defendant
began receiving mental health treatment at the California Youth Authority (CYA) around
the year 2000. After he turned 18, defendant was put on an antipsychotic medication for
hallucinations, but he had difficulty getting the medication once he was released from
CYA. Defendant stated that he has been diagnosed with paranoid schizophrenia, bipolar
disorder, hyperactive disorder, adjustment disorder, and posttraumatic stress disorder.
Defendant was receiving medication in county jail.
Defendant testified that on January 17, 2015, he was living with his mother on
Monterey Road. A man named “Carlos” had a trailer across from his mother. Defendant
had used methamphetamine the night before when he was “partying with [J.V.] and
3
Carlos.” Defendant had become acquainted with J.V., whom he knew as “ ‘Chewy,’ ”
on a couple of occasions when defendant helped J.V. get drugs.
Defendant testified that on the night before the incident, defendant asked to
borrow J.V.’s truck to look for his girlfriend. Defendant offered to pay J.V. with an
eight-ball of methamphetamine, which was worth approximately $80. Defendant gave
J.V. $30 worth of methamphetamine and said he would give him the remainder when he
returned.
Defendant stated that he spent all night looking for his girlfriend. When he
returned to the encampment around 3:00 a.m., J.V. was no longer there and neither was
Carlos. Defendant went to his mother’s trailer to go to sleep.
When defendant’s mother woke defendant up, defendant began arguing with her
about his girlfriend because defendant felt that his mother was hiding something from
him. Defendant heard a couple of people laughing outside. Defendant looked out the
window and saw that it was J.V. and another man he had never seen before. Defendant
felt like “something’s not adding up . . . like everything’s a lie.” Defendant thought that
his girlfriend might be in Carlos’s trailer and may have been there “the whole time.”
Defendant stated that he went outside, approached the man he did not know, and
asked, “ ‘Who the F are you?’ ” The man responded, “ ‘Mind your own business, or I’ll
mess you up.’ ” The man had his hand in his coat, causing defendant to think he may
have a gun. Defendant tried to open the door to Carlos’s trailer, told the man he did not
want “ ‘no problem with [him],’ ” and said he “ ‘just want[ed] the keys [to the trailer].’ ”
Defendant knocked on the door to Carlos’s trailer saying, “ ‘Open the door.’ ” Defendant
was angry.
J.V. asked defendant about the $50 defendant owed him for using his truck. When
defendant turned to look at J.V., he saw that J.V. had a knife in his hand. Defendant
“freaked out” because he did not want to get stabbed. Defendant began backing up and
said, “ ‘[D]on’t hurt me.’ ” Defendant took J.V.’s car keys out of his own pocket and told
4
J.V. to either take his keys back or let him use the truck so that defendant could get him
the money. Defendant then threw J.V.’s keys towards him. Defendant tripped over a
cement block and fell next to a shovel. Defendant got up and swung the shovel at J.V.
once or twice. Defendant was scared for his life. J.V. fell over. Defendant picked up
J.V.’s keys, got in the truck, and took off.
As defendant drove away, he saw an officer on the side of the road. Defendant
honked and pulled alongside the officer because he was trying to get help. Defendant
saw that J.V. was already talking to the officer on the other side of the patrol car.
Defendant sped away. Defendant drove for a couple of minutes before crashing.
Defendant admitted that he was convicted of assault with a deadly weapon in
June 2000, and he was convicted of attempted robbery in October 2007. Defendant also
stated that he had been convicted of felony resisting arrest.3
Neuropsychologist Brent Hughey testified that when he evaluated defendant in
2012, he diagnosed him with bipolar disorder with psychotic features and multiple
substance use disorder. When Dr. Hughey evaluated defendant in 2016, he again
concluded that defendant had bipolar disorder but also “raise[d] the prospect of a
schizoaffective disorder.”
Forensic and clinical neuropsychologist Ashley Cohen diagnosed defendant with
post-traumatic stress disorder with disassociation, mixed polysubstance use disorder, and
mild neurocognitive impairment.4 Dr. Cohen also opined that it was possible that
defendant had schizophrenia but she “lean[ed] more not . . . than yes.”
C. Charges, Verdicts, and Sentencing
Defendant was charged by second amended information with carjacking (§ 215;
count 1), attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); count 2), and
3
Defendant’s brother also testified. We do not summarize his testimony here
because it is not relevant to the issues on appeal.
4
Dr. Cohen did not state when she evaluated defendant.
5
assault with a deadly weapon (§ 245, subd. (a)(1); count 3). It was also alleged that
defendant personally used a deadly or dangerous weapon during the commission of
count 3 (§§ 667, 1192.7) and had sustained two prior strike convictions (§§ 667,
subds. (b)–(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and two
prior prison terms (§ 667.5, subd. (b)).
The jury found defendant guilty of all counts and found the deadly or dangerous
weapon allegation true. Defendant admitted the prior conviction and prior prison term
allegations.
The trial court denied defendant’s Romero motion to strike his prior strike
convictions. The court sentenced defendant to 27 years to life on count 1 and imposed
and stayed 25 years to life sentences on counts 2 and 3. The court imposed a consecutive
10-year sentence for defendant’s prior serious felony convictions and struck the
punishment for the prior prison term sentence enhancements.
D. Initial Appeal
Defendant appealed following the judgment of conviction, contending: (1) his
case must be conditionally remanded for a mental health diversion eligibility hearing
pursuant to section 1001.36; (2) remand was required to give the trial court an
opportunity to exercise its newfound discretion to strike his serious felony priors; and
(3) the trial court abused its discretion when it denied his Romero motion and violated
the constitutional prohibition against cruel and unusual punishment by imposing a
37-years-to-life sentence. The Attorney General conceded that defendant’s case should
be remanded for the trial court to conduct a mental health diversion eligibility hearing
based on the recent enactment of section 1001.36,5 and for the trial court to determine
whether to exercise its discretion under section 1385 to strike defendant’s section 667,
5
Effective June 27, 2018, section 1001.36 authorized trial courts to grant pretrial
diversion to defendants who are diagnosed with a qualifying mental disorder and who
meet other requirements. (Stats. 2018, ch. 34, § 24.)
6
subdivision (a) serious felony priors, and thus the Attorney General contended resolution
of the remaining issues was unnecessary. This court agreed, and conditionally reversed
the judgment with the following instructions: “If the trial court finds that defendant
suffers from a qualifying mental disorder, does not pose an unreasonable risk of danger
to public safety, and otherwise meets the relevant statutory criteria in Penal Code
section 1001.36, the court may grant defendant diversion. If defendant successfully
completes diversion, the court shall dismiss the charges and allegations against
defendant. However, if the court declines to grant defendant diversion under Penal Code
section 1001.36, or if defendant does not successfully complete diversion, the court shall
reinstate defendant’s convictions and resentence defendant. At the resentencing hearing,
the trial court shall determine whether to exercise its discretion pursuant to Penal Code
section 1385 to strike defendant’s prior serious felony convictions for the purposes of
sentencing him under Penal Code section 667, subdivision (a). Defendant may renew his
Romero motion at the resentencing hearing.” (People v. Garris, supra, H045657.)
E. Proceedings Upon Remand
Defendant then applied to the trial court for mental health diversion, asserting that
the section 1001.36 criteria weighed in favor of granting diversion. Defendant’s
application correctly noted that he had admitted the allegations concerning his prior
offenses, including that he had sustained two prior serious felony convictions under
section 667, subdivision (a). Defendant’s application stated that the trial court sentenced
him to 27 years to life in prison, without noting the 10-year consecutive sentence
imposed for the prior serious felony convictions. The prosecution’s opposition to the
application for mental health diversion correctly noted that defendant had admitted to
having sustained two prior serious felony convictions under section 667, subdivision (a)
and that the trial court imposed a 10-year consecutive sentence for these enhancements.
The prosecution’s opposition also noted that this court remanded this matter not only for
a determination as to whether defendant should be granted diversion, but also for a
7
determination whether the trial court should exercise its discretion under section 1385 to
strike the punishment for defendant’s prior serious felony convictions. The prosecution
argued that defendant was not eligible for mental health diversion in part because it
asserted granting diversion would pose an unreasonable risk of danger to public safety.
The trial court denied the application for mental health diversion. The trial court
stated it was satisfied that defendant suffered from a qualifying mental disorder and that
the disorder played a significant role in the commission of the charged offenses, as
required by section 1001.36, subdivision (b). The trial court then ruled that defendant
was not suitable for diversion because defendant’s actions demonstrated he would not
comply with and respond to mental health treatment. The trial court further found
defendant was not suitable for mental health diversion under section 1001.36,
subdivision (c)(4), which states that a defendant is suitable for pretrial diversion if the
following is met: “The defendant will not pose an unreasonable risk of danger to public
safety, as defined in Section 1170.18, if treated in the community. The court may
consider the opinions of the district attorney, the defense, or a qualified mental health
expert, and may consider the defendant’s treatment plan, the defendant’s violence and
criminal history, the current charged offense, and any other factors that the court deems
appropriate.”6 The trial court ruled: “I believe this is exceptionally dangerous conduct.
And he’s at risk of [committing] a super strike driving 100 miles an hour in a car after
car-jacking and smashing into a berm [sic] is exceptionally dangerous conduct. And his
in-custody conduct also includes multiple incidences of violence, even in that structured
environment. [¶] All of that being said, even if all the elements were satisfied and the
court -- I believe I still would not exercise my discretion -- were to grant mental health
6
At the time the trial court denied the application for mental health diversion,
the provision regarding a defendant’s risk of danger to public safety that is now
contained in section 1001.36, subdivision (c)(4) was numbered as section 1001.36,
subdivision (b)(1)(F) and contained minor changes from the current wording of the
statute not relevant here.
8
diversion, I just think, as I stated at sentencing, and continue to believe that the defendant
is a risk to public safety. And the proof’s in the pudding: even in custody and since the
sentencing on this case, he’s had double-digit violations in custody, including
unprovoked violence. [¶] So I believe he would be a significant risk to our community if
released and is not amenable to mental health treatment, mostly based on his conduct of
failing to comply with mental health treatment in custody and out of custody.”
Defendant then moved the trial court under section 1385 to dismiss a prior strike
conviction pursuant to Romero. This motion again correctly noted that defendant had
admitted the prior conviction and prior prison term allegations, including that he had
sustained two serious felony convictions under section 667, subdivision (a). This motion,
like the earlier application for mental health diversion, listed defendant’s sentence as
27 years to life without noting defendant was sentenced to a consecutive 10-year sentence
for the section 667, subdivision (a) enhancements. The motion focused on the defense’s
request to dismiss a prior strike conviction without specifically asking the trial court to
strike the punishment associated with one or more of the prior serious felony convictions.
However, the prosecution’s opposition to defendant’s motion stated: “The People
respectfully oppose both acts of leniency this Court is now asked to consider with respect
to Defendant’s prior convictions; it is not within the interests of justice to strike
Defendant’s serious felony priors pursuant [to] its direction under Senate Bill 1393 or to
strike the enhanced sentence[] called for by the Three Strikes Law. Defendant’s life-long
pattern of violent behavior, his violent conduct while in custody, his demonstrated refusal
or inability to comply with treatment, and his low prospects for rehabilitation
overwhelmingly support the imposition of Penal Code [fn. omitted] section 667, subd. (a)
and the Three Strikes Law.” The prosecution’s opposition specifically argued that it was
inappropriate to strike the punishment for defendant’s serious felony priors, and it argued
that the criteria of section 1385 applied to both decisions before the trial court: the
serious felony priors and defendant’s prior strikes. The prosecution cited the nature of
9
defendant’s current offenses, the nature of defendant’s two prior strike offenses, and
defendant’s “background, character, and prosects,” each time arguing that these factors
weighed against both the Romero motion and striking the punishment associated with
defendant’s prior serious felony convictions.
At a hearing on defendant’s motion, the trial court stated it had read and then re-
read the submissions from the parties. Defendant’s counsel briefly presented argument,
noting that the trial court previously found defendant suffers from a mental disorder and
the disorder played a significant role in the commission of the charged offenses, and
generally arguing that it would be “not fair” under section 1385 to reimpose the same
sentence originally imposed, given defendant’s mental health issues. Defense counsel
asserted: “I would just say to the Court that what [defendant] is looking for is fairness
and what’s fair.” The prosecution broadly asserted that under section 1385, “it is not
within the interests of justice to strike any penalties that the [L]egislature still imposes
upon defendants in [defendant’s] position,” and that “[w]e are still deeply concerned
about public safety and the risk that [defendant] poses to society if released.”
The trial court then ruled that defendant “falls squarely within the spirit of the
[T]hree [S]trikes law,” citing defendant’s criminal history and the nature of defendant’s
most recent offenses. The trial court found that defendant’s most recent criminal activity
“was extremely violent and out of control, and it was really very lucky that there were not
very significant injuries involved in that.” The trial court noted defendant’s “spotty-at-
best record in trying to address [his] very serious mental health issues,” the fact that
defendant’s most recent criminal activity “occurred very shortly after release from
custody,” and defendant’s “extreme difficulty in controlling his behavior in a non-illegal
or non-violent way.” The trial court stated: “And, really, again, the decision for the
Court is, is this a repeat offender that falls within the spirit of three strikes and that, if
released, he would be a continuing risk to our community? I think the answer to that is,
unfortunately, yes.” The trial court thus ruled: “I’m going to deny the request -- or better
10
put, I’m not going to exercise my discretion to strike the prior convictions in this matter,
and the sentence previously imposed is to remain in effect.” The prosecutor then asked:
“Your Honor, just to make sure that we address all issues within the remittitur, that
decision is also applying to the Penal Code Section 667(a) priors?” The trial court
replied, “Yes.”
This appeal followed.
III. DISCUSSION
A. Ineffective Assistance of Counsel – Failure to Request to Strike Punishment
for Prior Serious Felony Convictions
Defendant asserts that he received ineffective assistance of counsel because his
defense counsel failed to ask the trial court to strike the 10-year consecutive sentence for
his prior serious felony convictions. We do not agree.
“ ‘In assessing claims of ineffective assistance of trial counsel, we consider
whether counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome.’ [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 391.) “On direct
appeal, a conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation. All other claims of ineffective assistance
are more appropriately resolved in a habeas corpus proceeding. [Citations.]” (People v.
Mai (2013) 57 Cal.4th 986, 1009 (Mai).) Regarding prejudice: “The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Strickland v.
Washington (1984) 466 U.S. 668, 694 (Strickland).) “A defendant must prove prejudice
11
that is a ‘ “demonstrable reality,” not simply speculation.’ [Citations.]” (People v.
Fairbank (1997) 16 Cal.4th 1223, 1241.) “The object of an ineffectiveness claim is not
to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will often be so, that course
should be followed.” (Strickland, supra, at p. 697.)
After defendant was initially sentenced, the Governor signed Senate Bill No. 1393,
which amended section 1385, subdivision (b). (Stats. 2018, ch. 1013, § 2.) The changes
effected by Senate Bill No. 1393 apply retroactively to nonfinal judgments. (People v.
Stamps (2020) 9 Cal.5th 685, 699.) Under section 667, subdivision (a) a court is required
to impose a five-year consecutive term for “[a] person convicted of a serious felony who
previously has been convicted of a serious felony . . . .” Under the previous version of
section 1385, the court had no discretion to “strike any prior conviction of a serious
felony for purposes of enhancement of a sentence under Section 667.” (Former § 1385,
subd. (b).) Senate Bill No. 1393 removed the prohibition against striking a prior serious
felony conviction for sentencing purposes under section 667. Section 1385,
subdivision (c)(1) was then amended to provide: “Notwithstanding any other law, the
court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if
dismissal of that enhancement is prohibited by any initiative statute.” (Stats. 2021,
ch. 721, § 1.) Section 1385, subdivision (c)(2) sets forth several factors the trial court
shall consider in exercising this discretion, and it states: “Proof of the presence of one
or more of these circumstances weighs greatly in favor of dismissing the enhancement,
unless the court finds that dismissal of the enhancement would endanger public safety.
‘Endanger public safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious danger to others.”
Here, we need not decide whether the performance of defendant’s counsel was
deficient in failing to specifically ask the trial court to strike the punishment for
defendant’s prior serious felony convictions under the amendments that took effect after
12
his trial. Even assuming defendant’s counsel performed deficiently, no prejudice resulted
because the trial court considered this issue and decided sentencing relief was not
warranted.
This court’s prior opinion specifically directed the trial court to consider whether
to exercise its discretion under section 1385 to strike defendant’s serious prior felony
convictions for sentencing purposes. We presume the trial court read and followed this
direction. (See § 1265, subd. (a) [“After the certificate of the judgment has been remitted
to the court below, . . . all orders necessary to carry the judgment into effect shall be
made by the court to which the certificate is remitted.”].) Additionally, the prosecution’s
opposition to defendant’s Romero motion put the trial court on notice that it was being
asked to determine whether to strike defendant’s prior serious felony convictions for
sentencing purposes under section 667, subdivision (a). The trial court stated that it read
the filings by both parties. At resentencing, defense counsel did not specifically request
relief concerning the prior serious felony convictions, but he did broadly ask the court to
act in fairness to not re-impose the same sentence. Then, once the trial court determined
that it was not going to provide Romero relief to defendant, the prosecution specifically
asked the trial court whether its ruling also applied to defendant’s prior serious felony
convictions under section 667, subdivision (a), and the trial court replied, “Yes.” Thus,
the record establishes that the trial court considered whether it would provide defendant
sentencing relief under sections 667, subdivision (a) and 1385, subdivision (b), and it
decided not to do so. Any deficiency by defense counsel in failing to specifically request
this form of relief was therefore not prejudicial.
Defendant identifies several factors under section 1385, subdivision (c)(2) that his
counsel could have argued applied, and he asserts that if his counsel had identified these
factors, the trial court would have been required to give great weight to these factors in
favor of dismissing the serious felony conviction enhancements. However, defendant
made similar arguments under section 1385, subdivision (c)(2) in his Romero motion, and
13
the trial court declined to grant defendant relief. In addition, as defendant acknowledges,
section 1385, subdivision (c)(2) provides that proof of one or more of the listed
circumstances does not weigh greatly in favor of dismissing the enhancements where the
trial court finds that dismissal of the enhancements would endanger public safety, and the
trial court here found that defendant presented a risk to public safety both in denying the
request for mental health diversion and in denying defendant’s Romero motion. In
denying defendant’s Romero motion, the trial court answered yes to the question of
whether, “if released, [defendant] would be a continuing risk to our community.” This
finding on the Romero motion was made under the same section 1385, subdivision (c)(2)
“endanger public safety” standard as applies to the issue of whether the trial court should
strike the punishment for defendant’s serious felony priors. Similarly, the trial court
previously found in denying defendant’s application for mental health diversion that
“defendant is a risk to public safety.” Thus, it is not reasonably probable the trial court
would have found it was in the interest of justice to strike the punishment for defendant’s
prior serious felony convictions when the trial court found defendant endangered public
safety.
Defendant argues that the trial court’s finding regarding the risk defendant posed
to public safety does not mean that it would have made the same conclusion in the
context of striking the punishment associated with at least one of the two prior serious
felony enhancements. Defendant argues that the trial court’s conclusions regarding the
risk to public safety defendant posed were made in the context of immediate release.
Defendant asserts that he was 38 years old at the time of his resentencing, and even if
the trial court had struck one of his five-year enhancements for a serious prior felony
conviction, he still would have had to serve an indeterminate sentence of 32 years to life.
Thus, he argues: “Under these circumstances, it is unlikely that the trial court would
have found ‘a likelihood that the dismissal of the enhancement would result in physical
14
injury or other serious danger to others’ after [defendant] would have completed that
lengthy sentence. (§ 1385, subd. (c)(2).)”
Granting the Romero motion would not necessarily have resulted in defendant’s
immediate release into the community. Regardless, the trial court considered whether to
strike defendant’s prior serious felony priors under section 1385, and it declined to do so.
The trial court found that releasing defendant into the community would endanger public
safety, and it specifically made this ruling under the section 1385, subdivision (c)(2)
standard. Between the denial of mental health diversion and the denial of the Romero
motion, the trial court cited factors such as the nature of the most recent offenses, the
nature of defendant’s prior offenses, defendant’s lack of progress addressing his mental
health issues, and defendant’s continued offenses while in confinement to determine that
sentencing relief was not warranted. These factors were not necessarily limited to the
risk of defendant’s immediate release. A “reasonable probability” does not exist that the
result of the resentencing hearing would have been different if counsel had specifically
asked the trial court to strike the prior serious felony enhancements. (Strickland, supra,466 U.S. at p. 694.) Thus, defendant was not prejudiced by any deficient performance by
his counsel.
B. Ineffective Assistance of Counsel – Failure to Request Staying of Sentence
for Count 1 Under Section 654
At defendant’s initial sentencing hearing, the trial court imposed a 27-years-to-life
sentence for count 1, and the court imposed and stayed under section 654 sentences of
25 years to life on each of the other two counts. At the time of defendant’s initial
sentencing hearing, section 654, subdivision (a) provided in relevant part: “An act or
omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, former subd. (a).) Effective January 1, 2022, section 654,
15
subdivision (a) was amended to read in relevant part: “An act or omission that is
punishable in different ways by different provisions of law may be punished under either
of such provisions, but in no case shall the act or omission be punished under more than
one provision.” (§ 654, subd. (a), as amended by Stats. 2021, ch. 441, § 1.) “Previously,
under section 654, ‘the sentencing court was required to impose the sentence that
“provides for the longest potential term of imprisonment” and stay execution of the other
term. [Citation.] . . . [S]ection 654 now provides the trial court with discretion to
impose and execute the sentence of either term, which could result in the trial court
imposing and executing the shorter sentence rather than the longer sentence.’ [Citation.]”
(People v. Jones (2022) 79 Cal.App.5th 37, 45.)
Defendant asserts that he received ineffective assistance of counsel because at
resentencing, his counsel did not ask the trial court to stay the sentence of 27 years to life
imposed for the carjacking offense in favor of one of the 25-years-to-life sentences on the
remaining counts. He argues that there could be no satisfactory explanation for counsel’s
failure to request this relief, as there was no disadvantage to making this request, and that
it is reasonably probable the trial court would have granted this relief if asked, because
the trial court had struck the punishment for his two one-year prior prison term
enhancements at the original sentencing hearing. We do not agree.
The record contains no indication why defense counsel elected not to raise this
issue. Thus, because defendant raises this issue on direct appeal, defendant’s claim must
be rejected unless: “(1) the record affirmatively discloses counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked for a reason and failed
to provide one, or (3) there simply could be no satisfactory explanation.” (Mai, supra,
57 Cal.4th at p. 1009.) Here, these criteria are not satisfied. Specifically, there could be
a satisfactory explanation for counsel not raising the section 654 issue. Counsel may
simply have elected to pursue sentencing relief through arguments he believed were more
promising, such as dismissing the prior strike allegations or striking the punishment for
16
defendant’s prior serious felony offenses. The trial court had discretion to grant
sentencing relief for one of these other issues under section 1385. Defense counsel may
simply have decided that pursuing relief under section 1385 represented the best prospect
for obtaining sentencing relief, because if the trial court was not going to exercise its
discretion to grant section 1385 relief “in the furtherance of justice,” then it would not
grant discretionary relief under section 654. (§ 1385, subd. (c)(1).)
Moreover, defendant has not demonstrated prejudice even assuming his counsel’s
performance was deficient. The relevant amendment to section 654 took effect on
January 1, 2022. (Stats. 2021, ch. 441, § 1.) Defendant’s resentencing hearing took place
nearly nine months later on September 21, 2022. Nothing in the record indicates the trial
court was not aware of its discretion under section 654; thus, we presume the trial court
was aware of the amendment to this section and acted accordingly. (See People v.
Gutierrez (2014) 58 Cal.4th 1354, 1390 [“Absent evidence to the contrary, we presume
that the trial court knew and applied the governing law.”].) The trial court’s comments
both in denying the request for mental health diversion and in denying defendant’s
request for section 1385 sentencing relief indicate the trial court was not inclined to grant
any sentencing relief to defendant, given the factors the trial court articulated. A
“reasonable probability” does not exist that the result of the resentencing hearing would
have been different if counsel had asked the trial court to stay the sentence of 27 years to
life on the carjacking count in favor of the 25-years-to-life sentence on another count, and
thus defendant was not prejudiced by his counsel’s failure to specifically raise this issue
at resentencing. (Strickland, supra, 466 U.S. at p. 694.)
C. Denial of Romero Motion
“The purpose of the Three Strikes law is ‘to ensure longer prison sentences and
greater punishment for those who commit a felony and have been previously convicted of
serious and/or violent felony offenses.’ [Citation.]” (In re Young (2004) 32 Cal.4th 900,
909.) However, under the Three Strikes law, a trial court “may exercise the power to
17
dismiss granted in section 1385” to dismiss a prior strike allegation. (Romero, supra,13 Cal.4th at p. 504.) “In ruling on a Romero motion, the court must consider whether
‘the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he [or she] had not previously been convicted of one or more
serious and/or violent felonies.’ [Citation.] Thus, the 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. [Citation.]” (People v. Salazar (2023) 15 Cal.5th 416, 428.) “[A] trial court’s
refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is
subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367,
375 (Carmony).) “In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “ [t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.” ’ [Citation.] Second, a ‘ “decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial
judge.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at pp. 376–377.)
Defendant contends that the trial court’s denial of his Romero motion was
irrational or arbitrary because the trial court “did not consider the age he would be at the
time of release after serving a determinate sentence; it was contemplating immediate
release . . . .” However, as we note above, the trial court was not necessarily being asked
to outright release defendant immediately, particularly with regard to the Romero motion.
Defendant argues that his age and the lengthy nature of his sentence indicates he would
18
not endanger public safety if his Romero motion were granted. However, the trial court
analyzed factors such as the nature of the most recent offenses, the nature of defendant’s
prior offenses, defendant’s lack of progress addressing his mental health issues, and
defendant’s continued offenses while in confinement to determine that sentencing relief
was not warranted, and these considerations are not necessarily limited to whether
defendant should be immediately released. The trial court stated that defendant’s conduct
in the charged offenses “was extremely violent and out of control, and it was really very
lucky that there were not very significant injuries involved in that.” The trial court also
took note of defendant’s “spotty-at-best record in trying to address [his] very serious
mental health issues,” the fact that defendant’s most recent criminal activity “occurred
very shortly after release from custody,” and defendant’s “extreme difficulty in
controlling his behavior in a non-illegal or non-violent way.” The trial court correctly
noted that the underlying question before it is “whether [defendant] falls within the spirit
of” the Three Strikes law, and the trial court cited relevant evidence in determining
defendant “falls squarely within the spirit of” the Three Strikes law and that “if released,
he would be a continuing risk to our community[.]” Specifically, the trial court noted
defendant’s “very extensive and violent and continuous criminal history,” defendant’s
“spotty-at-best record in trying to address [his] very serious mental health issues,” and the
fact that the most recent offenses “occurred very shortly after release from custody,”
indicating defendant’s “extreme difficulty in controlling his behavior in a non-illegal or
non-violent way.” The trial court’s ruling was not “so irrational or arbitrary that no
reasonable person could agree with it,” and thus the trial court did not abuse its discretion
in denying defendant’s Romero motion. (Carmony, supra, 33 Cal.4th at p. 377.)
IV. DISPOSITION
The judgment is affirmed.
19
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
WILSON, J.
ADAMS, J.*
People v. Garris
H050410
*
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.