People v. Crosby CA5 ( 2024 )

Filed 10/22/24 P. v. Crosby 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
F085458
Plaintiff and Respondent,
(Super. Ct. No. MF014780A)
v.
LORENZO CROSBY, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
Kaiya R. Pirolo, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E.
O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On December 5, 2021, defendant Lorenzo Crosby cut Devonte J.’s throat with a
knife. On July 14, 2022, defendant was found guilty of willful, deliberate, and
premeditated attempted murder, as well as assault with a deadly weapon. On
November 9, 2022, defendant was sentenced to a term of life with a minimum parole
eligibility date of 14 years, plus eight years.
On appeal, defendant argues that: 1) there was insufficient evidence to support the
premeditation and deliberation finding; 2) the trial court erred when it excluded
Devonte’s statements contained in his hospital medical records; 3) the trial court erred
when it denied defendant’s motions for release of juror identification information; 4) the
trial court erred when it denied defendant’s request to sentence him to the lower term on
count 2 pursuant to Penal Code section 11701 because he experienced childhood trauma;
and 5) the trial court erred when it denied defendant’s request to strike all enhancements
pursuant to section 1385. The People disagree.
We vacate defendant’s sentence and remand for resentencing. In all other respects,
we affirm.
PROCEDURAL HISTORY
On June 30, 2022, the Kern County District Attorney filed a second amended
information charging defendant with attempted murder (§§ 664, 187, subd. (a); count 1);
and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). As to count 1, the
second amended information alleged that the attempted murder was willful, deliberate,
and premeditated (§ 189). As to both counts, the second amended information alleged
five aggravating factors that defendant personally inflicted great bodily injury (§ 12022.7,
subd. (a)), that defendant had a prior “strike” conviction within the meaning of the “Three
Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and that defendant had
suffered a prior serious felony conviction (§ 667, subd. (a)(1)).
On July 14, 2022, defendant was found guilty by a jury on both counts. The jury
also found true that the attempted murder was willful, deliberate, and premeditated.
Additionally, on both counts, the jury found true three aggravating factors and that
defendant personally inflicted great bodily injury. In a bifurcated proceeding held on
1 All further undesignated statutory references are to the Penal Code.
2.
July 15, 2022, the trial court found the prior strike allegation, the prior serious felony
allegation, and the remaining two aggravating factors true on both counts.
On August 10, 2022, the trial court denied defendant’s motion for release of jury
identifying information.
On November 9, 2022, the trial court denied defendant’s motion for a new trial,
defendant’s second motion for release of jury identifying information, defendant’s request
to strike all enhancements, and defendant’s request for imposition of the lower term on
count 2. The trial court also sentenced defendant. On count 1, the trial court imposed a
term of life with a minimum parole eligibility date of 14 years (seven years, doubled due
to the prior strike conviction), plus eight years (three years for the great bodily injury
enhancement and five years for the prior serious felony conviction enhancement). As to
count 2, the trial court sentenced defendant to six years (the middle term of three years,
doubled due to the prior strike conviction), plus three years for the great bodily injury
enhancement and five years for the prior serious felony conviction enhancement. The
trial court stayed the sentence on count 2 pursuant to section 654.
On December 15, 2022, defendant timely filed a notice of appeal.
FACTUAL SUMMARY
The Prosecution’s Case
On the night of December 4, 2021, defendant, Devonte, Aiana M., Alma B.,
Devon D. (also known as Will), and others were hanging out at a park. Eventually, the
group went into Alma’s car to hangout because it was cold.2 They were drinking,
smoking marijuana, talking, and listening to music.
2 According to Aiana, Alma, and Devonte, Alma was in the driver’s seat and
Devonte was in the front passenger seat. However, accounts diverged as to where the
individuals in the back were sitting. At trial, Aiana testified that defendant was in the
back driver side seat, she was in the middle of the back seat, and Devon was in the back
passenger side seat. On the night of the incident, Aiana told officers that she was in the
back driver side seat, Devon was in middle of the back seat, and defendant was in the
back passenger side seat. According to Devonte, Devon was in the back driver side seat,
3.
At around 1:30 a.m. on December 5, 2021, defendant was getting ready to leave.
Witness accounts diverged as to what happened next.
According to Aiana, defendant shook everyone’s hand. Defendant reached over
Aiana to shake Devonte’s hand, and it looked to Aiana like he did. However, defendant
actually cut Devonte’s neck. There was blood everywhere as defendant left the car.
Defendant was in his vehicle by the time Aiana and the others realized what had
happened, and Aiana did not see a knife in defendant’s hand.
After Aiana realized what happened, she got out of the car and followed
defendant. She asked defendant why he did it. Defendant did not tell her why, but he did
say “don’t come up on me like that.” On cross-examination, Aiana testified that
defendant also said, “he knows why.”
On redirect-examination, after having her memory refreshed by body camera
footage of a statement she made to an officer, Aiana testified that she saw a knife in
defendant’s hand when he reached over. It was “a dark silver typical metallic color.”
According to Devonte, defendant said goodbye to everyone. As defendant was
getting out of the car, Devonte felt something go across his neck. He looked down and
saw blood, which is how he knew his neck was cut. Devonte did not know why
defendant attacked him.
According to Alma, Aiana and Devon had already left the car, and defendant was
the last one in the backseat. Defendant hugged Alma and Devonte from behind, then left
the car. As defendant went to hug Devonte, his hand went across Devonte’s neck area.
“[I]t took a second,” then Devonte said he could feel something wet. Alma turned on the
interior lights, and she saw blood leaking from Devonte’s neck, as well as what looked
like “white meat.”
Aiana was in the middle of the back seat, and defendant was in the back passenger side
seat. Alma did not remember where the individuals in the back were sitting.
4.
After attacking Devonte, defendant went to his vehicle and left. Devonte’s neck
was bleeding badly. Alma was screaming and panicking. Clothing was placed and held
on Devonte’s neck to stop the bleeding.
Alma eventually called 911. Joshua Flores and Anthony Cabriales, police officers
with the California City Police Department, responded to the call. Flores asked Devonte
who stabbed him, and Devonte responded, “Lorenzo.”
Devonte was subsequently transported to a hospital via ambulance. Devonte told
medical professionals at the hospital what happened. Due to the amount of blood
Devonte lost, he was given blood. Additionally, the wound was stitched and he had to
have surgery.
Defendant’s Case
Defendant introduced the following stipulation into evidence:
“If called to testify, California City Police Department Sergeant
Stewart would testify that on December 9, 2021 at 1:48 P.M., [Devonte]
responded to the California City Police Department to be interviewed.
Sergeant Stewart would testify … that [Devonte] stated that on December
5, 2021, he … was hanging out with friends in a vehicle that belonged to
Alma …. [Devonte] was seated in the front passenger’s seat and there were
two females sitting in the backseat. He heard the females talking to a
person later identified as [defendant], whom he identified as an
acquaintance. [Defendant] entered the backseat of the vehicle and sat
directly behind [Devonte]. [Devonte] was talking to [Alma] when without
warning he felt something touch his throat and saw [defendant’s] arm go
back towards the backseat. He heard [defendant] exit the vehicle and walk
to a nearby van, which [defendant] then entered and left the location.
[Devonte] said he felt his neck get cold and began feeling dizzy.”
DISCUSSION
I. Substantial Evidence Supports the Premeditation and Deliberation Finding
and Defense Counsel Was Not Ineffective for Eliciting Inconsistent Testimony
When Cross-Examining Aiana
Defendant argues that there is insufficient evidence to support the premeditation
and deliberation finding. Alternatively, defendant argues that if there is sufficient
5.
evidence to support the finding because defense counsel elicited testimony from Aiana on
cross-examination that defendant stated Devonte knew why defendant attacked him, then
defense counsel rendered ineffective assistance. We reject both contentions.
A. Applicable Law re: Premeditation and Deliberation
“The prosecution may seek a jury finding that an attempted murder was ‘willful,
deliberate, and premeditated’ for purposes of sentence enhancement.” (People v. Smith
(2005) 37 Cal.4th 733, 740.)3 “ ‘[P]remeditation means “ ‘considered beforehand’ ”
[citation] and deliberation means a “ ‘careful weighing of considerations in forming a
course of action …’ ” [citation]. “The process of premeditation and deliberation does not
require any extended period of time.” [Citation.] “ ‘Thoughts may follow each other
with great rapidity and cold, calculated judgment may be arrived at quickly ….’ ” ’ ”
(People v. Salazar (2016) 63 Cal.4th 214, 245.). “ ‘ “ ‘The true test is not the duration of
time as much as it is the extent of the reflection.’ ” ’ ” (People v. Watkins (2012)
55 Cal.4th 999, 1026.)
“[T]hree types of evidence … indicate premeditation and deliberation. They are:
‘(1) facts about how and what defendant did prior to the actual killing which show that
the defendant was engaged in activity directed toward, and explicable as intended to
result in, the killing—what may be characterized as “planning” activity; (2) facts about
the defendant’s prior relationship and/or conduct with the victim from which the jury
could reasonably infer a “motive” to kill the victim, which inference of motive, together
with facts of type (1) or (3), would in turn support an inference that killing was the result
of “a pre-existing reflection” and “careful thought and weighing of considerations” rather
than “mere unconsidered or rash impulse hastily executed” [citation]; (3) facts about the
nature of the killing from which the jury could infer that the manner of killing was so
3 “We do not distinguish between attempted murder and completed first degree
murder for purposes of determining whether there is sufficient evidence of premeditation
and deliberation.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8,
disapproved on another ground in People v. Mesa (2012) 54 Cal.4th 191, 199.)
6.
particular and exacting that the defendant must have intentionally killed according to a
“preconceived design” to take his victim’s life in a particular way for a “reason” which
the jury can reasonably infer from facts of type (1) or (2).’ ” (People v. Lenart (2004)
32 Cal.4th 1107, 1127, quoting People v. Anderson (1968) 70 Cal.2d 15, 26–27.)4
However, these “categories of evidence … do not represent an exhaustive list of
evidence that could sustain a finding of premeditation and deliberation, and the reviewing
court need not accord them any particular weight.” (People v. Young (2005) 34 Cal.4th
1149, 1183; see People v. Lenart, supra, 32 Cal.4th at p. 1127 [“The Anderson factors are
not the exclusive means for establishing premeditation and deliberation”].) “The
fundamental inquiry is whether … the crime occurred as a result of preexisting reflection
rather than a rash or unconsidered impulse.” (People v. Felix (2009) 172 Cal.App.4th
1618, 1626; People v. Pride (1992) 3 Cal.4th 195, 247 [“Anderson was … intended to
guide an appellate court’s assessment whether the evidence supports an inference that the
killing occurred as the result of preexisting reflection rather than unconsidered or rash
impulse”].)
B. Standard of Review re: Substantial Evidence
When evaluating a sufficiency of evidence claim, “ ‘we review the whole record in
the light most favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ”
(People v. Cravens (2012) 53 Cal.4th 500, 507.) “The test for evaluating a sufficiency of
evidence claim is deferential.” (People v. Flores (2020) 9 Cal.5th 371, 411.) “We must
presume in support of the judgment the existence of every fact that the trier of fact could
reasonably deduce from the evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.)
“We must also ‘accept logical inferences that the jury might have drawn from the
4 These three categories of evidence are sometimes referred to as the “Anderson
factors.” (See, e.g., People v. Perez (1992) 2 Cal.4th 1117, 1125.)
7.
circumstantial evidence.’ ” (Flores, at p. 411.) “The conviction shall stand ‘unless it
appears “that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].” ’ ” (Cravens, at p. 508.)
C. Analysis re: Substantial Evidence
Defendant does not argue that there is insufficient evidence to support the finding
that he attempted to kill Devonte. Instead, defendant argues that “there was insufficient
evidence that [he] acted with premeditation or deliberation.”
We disagree with defendant. While there is little to no evidence as to motive,5
there is strong circumstantial evidence from which the jury could have reasonably
concluded that defendant engaged in planning activity and that defendant attacked
Devonte according to a preconceived design. There is testimony that defendant had the
knife in the car, and there is no evidence suggesting that defendant came into possession
of the knife while he was in the car. Accordingly, the jury could reasonably have inferred
that defendant brought the knife into the car, which made it “ ‘reasonable to [have]
infer[red] that he considered the possibility of homicide from the outset.’ ” (People v.
Steele (2002) 27 Cal.4th 1230, 1250.) Additionally, there is testimony that defendant was
seated in the backseat, behind Devonte. Defendant waited until he was about to leave the
car, and he reached towards Devonte under the guise of saying goodbye. However, as he
was doing so, he cut Devonte’s throat. Finally, there is no evidence that, while defendant
was in the car, something occurred that caused him to act on impulse.
5 Defendant argues Aiana’s testimony that she asked defendant why he did it, and
defendant’s response, “he knows why,” does not indicate that defendant considered
attacking Devonte in advance or that defendant conducted a careful weighing of
considerations. We do not disagree, especially in light of Devonte’s testimony that he did
not know why defendant attacked him. However, as discussed in this opinion, other
evidence amply supports the premeditation and deliberation finding.
8.
Accordingly, substantial evidence supports a finding that the attempted murder
“occurred as the result of preexisting reflection rather than unconsidered or rash
impulse.” (People v. Pride, supra, 3 Cal.4th at p. 247.)
Moreover, our Supreme Court has “concluded that an execution-style killing may
be committed with such calculation that the manner of killing will support a jury finding
of premeditation and deliberation, despite little or no evidence of planning and motive.”
(People v. Lenart, supra, 32 Cal.4th at p. 1127; see People v. Boatman (2013)
221 Cal.App.4th 1253, 1269 [“Cases that have found sufficient evidence of premeditation
and deliberation in the absence of planning or motive evidence are those in which ‘[t]he
manner of the killing clearly suggests an execution-style murder.’ ”].)
And here, the jury could have reasonably found that defendant attempted to kill
Devonte in a manner akin to “execution-style” because there is testimony that defendant
cut Devonte’s throat from behind under the guise of saying goodbye, and there is no
evidence suggesting that Devonte struggled or fought back. (See, e.g., People v. Stewart
(2004) 33 Cal.4th 425, 495 [“The killing was accomplished by a single execution-style
shot fired from close range into the victim’s forehead, in circumstances showing no
evidence of a struggle.”]; People v. Romero (2008) 44 Cal.4th 386, 401 [“[The victim]
was killed by a single gunshot fired from a gun placed against his head. We have held
that this execution-style manner of killing supports a finding of premeditation and
deliberation when, as here, there is no indication of a struggle.”]; People v. Bloyd (1987)
43 Cal.3d 333, 348 [“The manner of killing … was very strong evidence of deliberation
and premeditation: The evidence described actions that were cold and calculated—
execution-style killings, shots to the head while [Victim 1] was lying on her back and
[Victim 2] was kneeling. [Victim 1] had been shot pointblank, while [Victim 2] was shot
by a standing killer from a distance of one foot. Further, there was no evidence, such as
bruises or lacerations, to demonstrate a struggle.”].)
9.
Based on the foregoing, defendant’s argument that there was insufficient evidence
to support the premeditation and deliberation finding fails.
D. Applicable Law re: Ineffective Assistance of Counsel
Defendant has the burden of proving ineffective assistance of counsel. (People v.
Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman
(1993) 6 Cal.4th 1048, 1081, fn. 10.) To establish such a claim, a defendant must show
(1) his counsel’s performance fell below an objective standard of reasonableness and
(2) prejudice, that is, but for counsel’s unprofessional error a different result would have
been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687‒688, 694
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216‒218.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
(Strickland, at p. 694.) “Because of the difficulties inherent in making the evaluation [of
counsel’s performance], a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” (Id. at p. 689.)
“It is … particularly difficult to establish ineffective assistance of counsel on
direct appeal, where we are limited to evaluating the appellate record. If the record does
not shed light on why counsel acted or failed to act in the challenged manner, we must
reject the claim on appeal unless counsel was asked for and failed to provide a
satisfactory explanation, or there simply can be no satisfactory explanation.” (People v.
Scott (1997) 15 Cal.4th 1188, 1212.) Reversal is permitted “ ‘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
10.
simply could be no satisfactory explanation.’ ” (People v. Arredondo (2019) 8 Cal.5th
694, 711.)6
E. Analysis re: Ineffective Assistance of Counsel
We next turn to defendant’s alternative argument that defense counsel provided
ineffective assistance.
On direct-examination, Aiana testified that after defendant attacked Devonte, she
got out of the car and followed defendant. She asked defendant why he did it. Defendant
did not tell her why, but he did say “don’t come up on me like that.” On cross-
examination, defense counsel asked Aiana, “Do you recall telling law enforcement that
when you came up to [defendant] and asked him why …[,] [defendant] told you he
knows why?” Aiana responded, “Yes, I do actually recall that.” Defense counsel pressed
Aiana, “When you testified earlier, you gave a different statement?” Aiana responded,
“Well, it was two things but I didn’t remember that one until you just said that and it
came to me, yeah.” Defense counsel pressed further, asking “Did you tell law
enforcement [about] the statement that [defendant] made about don’t come up on me that
way?” Aiana responded, “No, I didn’t.”
Defendant argues that, if sufficient evidence supports the finding of deliberation
and premeditation because defense counsel elicited this testimony from Aiana on cross-
examination, then defense counsel rendered ineffective assistance.
First, as analyzed above, substantial evidence supports the finding of
premeditation and deliberation even without this testimony from Aiana.
Second, defense counsel’s performance did not fall below an objective standard of
reasonableness. “Although in extreme circumstances cross-examination may be deemed
incompetent [citation], normally the decision to what extent and how to cross-examine
witnesses comes within the wide range of tactical decisions competent counsel must
6 Defendant argues ineffective assistance of counsel as an alternative argument
several times. For the sake of brevity, we include the relevant legal standards only once.
11.
make. [Citation.] ‘Even where defense counsel may have “ ‘elicit[ed] evidence more
damaging to [the defendant] than the prosecutor was able to accomplish on direct’ ”
[citation], we have been “reluctant to second-guess counsel” [citation] where a tactical
choice of questions led to the damaging testimony.’ ” (People v. Cleveland (2004)
32 Cal.4th 704, 746.)
Here, while there was risk in eliciting the statement and it may have ultimately
been damaging to defendant, defense counsel had a rational tactical purpose for eliciting
the testimony. Defense counsel’s theory of the case was that someone else attacked
Devonte, and the three eyewitnesses knew who it was. As these three witnesses
identified defendant as the attacker, defense counsel reasonably (and repeatedly)
attempted to elicit inconsistencies in the testimony of these witnesses. This included the
exchange described above, in which defense counsel reasonably pressed Aiana on the
inconsistencies between what she told police and her testimony at trial.
Moreover, in eliciting the testimony, it appears that defense counsel was
attempting to challenge Aiana’s credibility in a second way. According to Aiana,
defendant stated that Devonte knew why defendant attacked him. However, Devonte
testified that he did not know why defendant attacked him. Given this, defense counsel
could rationally have intended to convince the jury that Aiana lied about or
misremembered what defendant said.
Accordingly, defendant’s ineffective assistance of counsel argument fails.
II. The Trial Court Did Not Err in Excluding Devonte’s Purported Statement
Contained in a Medical Record, and any Error Made by Defense Counsel was
Harmless
A. Additional Background
On July 13, 2022 (after the prosecution’s case-in-chief), the trial court held a
hearing regarding the admissibility of a medical record that contained a prior inconsistent
statement purportedly made by Devonte. On cross-examination, defense counsel had
asked Devonte if he “told medical professionals that [he was] seated in the passenger’s
12.
seat and the assailant came up to the window and sliced [his] neck?” Devonte answered,
“I don’t remember.” Defense counsel also asked Devonte, “when you spoke to the
medical professionals … you told them you did not know who attacked you?” Devonte
responded, “That’s incorrect.”
According to the medical record at issue, which was provided to the trial court by
the prosecutor,7 “PT CONFIRMED HE WAS SITTING IN THE PASSENGER SEAT OF
A VEHICLE WHEN THE ASSAILANT CAME UP TO THE WINDOW AND SLICED
HIS NECK WITH A LARGE SHARP KNIFE. PT DENIED ANY OTHER INJURIES.”
Defense counsel wanted to introduce this medical record as a prior inconsistent
statement. Defense counsel argued that there were two levels of hearsay, Devonte’s out-
of-court statement and the medical record documenting it. The exception for the first
level was that Devonte’s out-of-court statement was inconsistent with his testimony at
trial. The exception for the second level was that the medical record was a business
record of the hospital, in part because the declaration from the hospital’s custodian of
records indicated that the record was maintained in the regular course of business.
The trial court found the declaration from the hospital’s custodian of records was
not relevant because the record at issue was not created by the hospital. Instead, it was
“very clear” from the record that it was created by the ambulance company, and there was
no declaration from the custodian of records at the ambulance company.
Additionally, there was “no sort of chain of sequence of events as to this particular
statement.” That is, the statement attributed to defendant in the report could have come
from a combination of people. “One person might hear it from [Devonte], tell another
person, tell another person, and it ends up in a report.” Accordingly, the trial court found
that the statement attributed to Devonte was unreliable and excluded it pursuant to
7 The prosecutor only attached the first page of the six-page record, which contained
the statement at issue.
13.
Evidence Code section 352 because “it has the undue prejudice of risking confusion to
the jury.”
As defense counsel still believed the record was prepared by the hospital, the trial
court allowed defense counsel to contact the custodian of records to determine whether
the hospital prepared the record, and if it was prepared by the hospital, to bring that to the
court’s attention. Defense counsel later confirmed that she was not going to call the
hospital’s custodian of records as a witness.
That same day, the trial court provided additional explanation regarding its
analysis. The court explained there were three levels of hearsay: Devonte’s statement to
the EMTs who transported him to the hospital, the EMTs relaying that information to the
hospital, and the hospital relaying that information to the court (through the medical
records it sent). The court also held there was a hearsay exception for Devonte’s
statement to the EMTs because it was a prior inconsistent statement.
However, the trial court further held that there was no hearsay exception for the
other levels. There was no evidence that the EMTs’ records qualified as business records.
And even if the hospital’s records qualified as business records, Devonte’s “statements
probably don’t qualify.” The multiple layers of hearsay called into question the
authenticity of Devonte’s statement. The court also again noted that “there may be even
more layers that we’re not even aware of the way it’s written there because we’re not sure
who heard what and who transferred onto who.” Devonte’s statement “just ended up in
some record,” which was not sufficient.
On November 9, 2022, when ruling on defendant’s motion for a new trial,8 the
trial court again addressed the admissibility of statement attributed to Devonte in the
medical record. The court noted it previously excluded the statement, stated that it stood
by its ruling, and provided clarification regarding the ruling. In clarifying its ruling, the
8 Defendant does not make any claims of error based upon the trial court’s ruling on
his motion for a new trial.
14.
court held that one reason the statement in the medical record did not qualify for the
business record hearsay exception is that “the ambulance drivers didn’t personally
observe what went on that day and they had no duty to record what went on that day.”
B. Applicable Law
“Evidence of a writing made as a record of an act, condition, or event is not made
inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶]
(a) The writing was made in the regular course of a business; [¶] (b) The writing was
made at or near the time of the act, condition, or event; [¶] (c) The custodian or other
qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The
sources of information and method and time of preparation were such as to indicate its
trustworthiness.” (Evid. Code, § 1271.) “It is the burden of the party offering the
evidence to establish that these foundational requirements have been met.” (People v.
McVey (2018) 24 Cal.App.5th 405, 414.)
C. Standard of Review
“A trial court has broad discretion in determining whether a sufficient foundation
has been laid to qualify evidence as a business record. On appeal, we will reverse a trial
court’s ruling on such a foundational question only if the court clearly abused its
discretion.” (People v. Hovarter (2008) 44 Cal.4th 983, 1011.) This “is not a unified
standard; the deference it calls for varies according to the aspect of a trial court’s ruling
under review. The trial court’s findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the law to the facts is
reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 711–712, fns. omitted.)
Even if a trial court abuses its discretion, “[s]tate law error in the admission of
hearsay requires reversal of the judgment [only] if ‘ “it is reasonably probable that a
result more favorable to the [defendant] would have been reached in the absence of the
15.
error.” ’ ” (People v. Turner (2020) 10 Cal.5th 786, 823, quoting People v. Watson (1956)
46 Cal.2d 818, 837 (Watson).)
D. Analysis
Defendant makes multiple claims of error regarding the admission of medical
records. We address each argument in turn.
Defendant argues that substantial evidence does not support the trial court’s
finding that the medical record at issue was created by the ambulance company and not
the hospital. According to defendant, in making its finding, the trial court erroneously
“rel[ied] on its own outside knowledge instead of the evidence contained within the
hospital records and the custodian of record’s declaration.”
This argument is unpersuasive. As the trial court noted, “at the very top [the
record] says ‘emergency medical transport.’ ” Near the top, the record also states that it
is a “Prehospital Care Report.” In addition to this, the narrative section of the report
appears to have been prepared by an individual working in the ambulance, not by hospital
staff. Among other things, the narrative states that Devonte was “FOUND STANDING
UPRIGHT.” It also states that Devonte was “PLACED ON GURNEY, STRAPPED IN
AND LOADED FOR A PRIORITY 1 TRANSPORT TO [HOSPITAL].” Given this
evidence and the deferential substantial evidence standard (People v. Flores, supra,
9 Cal.5th at p. 411), the trial court did not abuse its discretion when it found that the
medical record was created by the ambulance company.9
Defendant argues, in the alternative, that defense counsel provided ineffective
assistance because the trial court only had one page of the six-page record, and defense
counsel did not provide the court with the remaining five pages. According to defendant,
had the court reviewed the additional five pages, it is reasonably probable that it would
have admitted the medical record.
9 As we conclude the trial court did not err in excluding the record on this ground,
we do not address the court’s other grounds for excluding the record.
16.
Defendant is correct that the six-page medical record does address some of the
trial court’s concerns regarding admissibility of the record. However, it also supports the
court’s finding that the record was prepared by employees of the ambulance company, not
the hospital. The record includes various entries supporting that finding, including when
the “unit” was dispatched, was enroute, was at the scene, and when it arrived. Moreover,
according to the record, it was signed by the EMTs who responded to the scene in the
ambulance.
As providing the full record to the trial court would have only reinforced its
finding that the record was prepared by employees of the ambulance company, defense
counsel could have reasonably concluded there was no reason to introduce the remainder
of the record. For this same reason, even if defense counsel was ineffective, defendant
was not prejudiced.
Next, defendant argues that, even if the record was prepared by the ambulance
company, the trial court still erred because the record was admissible, not as
“independent proof of the facts,” but to impeach Devonte. In support of this argument,
defendant relies on Rosener v. Larson (1967) 255 Cal.App.2d 871 and Springer v.
Reimers (1970) 4 Cal.App.3d 325. However, both cases are readily distinguishable.
Both addressed the admissibility of medical records when an expert relies on those
records in forming their opinion. (Rosener, at pp. 877–878; Springer, at p. 338.) Neither
addressed whether a prior inconsistent statement contained in a medical record could be
used to impeach a lay witness. Accordingly, this argument is also unpersuasive.
Moreover, even if the record should have been admitted solely to impeach Devonte and
not for the truth of the statement included therein, its evidentiary value would be severely
diminished and any error was harmless for the same reasons described below.
Finally, defendant argues that defense counsel’s performance was deficient
because she failed to introduce a second medical record that would have impeached
Devonte’s testimony. This record included the name of the hospital at the top, and it was
17.
signed and dated by an emergency department doctor. According to this record,
“DEVONTE … is a 23 Years [sic] Male who was brought in after being attack [sic] by an
unknown individual just prior to arrival. He was single [sic] by to [sic] his friends when
he was suddenly accosted from behind and felt a sharp/across his neck.” The record also
stated, “[p]atient states that they do not know the assailant.”
Defendant argues that defense counsel should have introduced this record to
impeach Devonte because “[t]here were no issues of authenticity or jury confusion and
the two levels of hearsay each had an exception: [Devonte’s] statement was a prior
inconsistent statement and it was made directly to the doctor so it clearly fell within the
business records exception.” Defendant further argues that there was no tactical reason
not to introduce this record. Instead, “[i]t is apparent that defense counsel simply was
unaware that another page of the hospital records contained a prior inconsistent statement
that she could use to impeach [Devonte].”
Defendant argues that this (and the other) errors were prejudicial. According to
defendant, the testimony of Aiana, Devonte, and Alma was “full of inconsistencies about
who was present in the car, where everyone was seated, and who was present at the scene
in general.” Additionally, “some of the jurors were not initially convinced that
[defendant] was [Devonte’s] assailant.” Accordingly, Devonte’s “statement contained in
the ambulance narrative would have damaged his credibility,” as well as the credibility of
Aiana and Alma, and thus “could have caused at least one of the jurors to hold fast to
their belief that the witnesses were lying.”
Even assuming that defendant is correct and defense counsel’s performance was
deficient because she did not introduce the second medical record, given the weight of
the evidence, defendant suffered no prejudice.
Multiple witnesses testified that, after the incident, Alma called 911. A copy of the
911 call was introduced into evidence, and it supports the testimony that Alma was
screaming and panicking. Flores, a police officer, testified that he arrived at the scene
18.
approximately three minutes after being dispatched. Flores further testified that he asked
Devonte who stabbed him, and Devonte responded, “Lorenzo.” Moreover, according to
Flores, Aiana and Alma also provided a statement to the officers regarding what occurred.
Given Alma’s panic and how quickly officers arrived, defendant’s theory of the case, that
Aiana, Alma, and Devonte agreed to lie and blame Devonte for the attack, was weak.10
Moreover, while there were some internal inconsistencies in the testimony of the
three eyewitnesses, as well as inconsistencies between their testimony, all three generally
described the incident in the same way. According to all three witnesses, defendant,
Devonte, Aiana, Devon, and Alma were in Alma’s car. Devonte was in the front
passenger seat and defendant was in the back seat. As defendant was getting ready to
leave, he cut Devonte’s throat. After the attack, defendant went to his vehicle and left.
Finally, defense counsel was allowed to ask Devonte whether he told medical
professionals that he did not know his attacker, and Devonte denied making the
statement.
Given this evidence, it is not reasonably probable there would have been a more
favorable result for defendant had one medical record stating that Devonte was attacked
“by an unknown individual” and that “[p]atient states that they do not know the assailant”
been introduced.
As to defendant’s argument that the fact several jurors initially believed he was
innocent shows he was prejudiced by defense counsel’s performance, even assuming the
evidence is properly before us,11 defendant has not cited any law, nor are we are of any,
10 We also note that, while all three eyewitnesses testified that defendant was an
acquaintance and not a friend, there is no evidence in the record suggesting that they had
a motive for framing defendant. There is also no evidence that defendant was somewhere
else at the time of the attack.
11 The only evidence provided was a declaration from defense counsel that “[f]ive or
six jurors remained in the hallway to speak with both counsel,” and that “[w]hen
deliberations began, two or three jurors were adamant that they believed [defendant] was
innocent and they would not convict him.” This is hearsay.
19.
suggesting that a juror’s initial thoughts have any relevance to the prejudice analysis.
Moreover, there is nothing in the record suggesting that, after deliberating and reviewing
the evidence, the jury reached an impasse or otherwise considered this a close case. (See,
e.g., People v. McDaniel (2019) 38 Cal.App.5th 986, 1009 [finding prejudice where “the
record reveal[ed] that the jury found the case to be a close one and struggled to reach
guilty verdicts on all counts”].) Accordingly, even assuming that several jurors thought
defendant was innocent when deliberations began, this fact alone has no bearing on our
analysis.
III. Denying Defendant’s Motions for Release of Jury Identifying Information
Was Not an Abuse of Discretion
A. Background on Defendant’s First Motion for Release of Jury Identifying
Information
On July 27, 2022, defendant filed his first motion for release of jury identifying
information, along with a declaration from defense counsel. The prosecutor opposed the
motion.
According to the declaration of defense counsel, after the verdict was read, five to
six jurors remained in the hallway and spoke with defense counsel and the prosecutor.
Those jurors told counsel that when deliberations began, two or three were “adamant”
that defendant was innocent. The jurors who remained also told counsel that the jurors
who thought defendant was innocent believed there was another person at the park when
the incident occurred and that the witnesses hid his or her identity. One of the jurors who
remained, Juror No. 8, stated that he was originally going to vote not guilty, but was
convinced to change his vote. “The foreperson essentially said, ‘We got [those jurors] to
admit that that didn’t matter.’ The foreperson also described that during the deliberations,
she would identify one fact, such as whether the window was down or up, and go around
the room and get each juror to ‘admit’ that that fact was proven to them.” Moreover,
20.
“when the jury walked out to read the verdict … Juror [No.] 9 looked dejected and beaten
down, just from her body language.”
Further, according to defense counsel, the jury requested readback of testimony
from Devonte, Alma, Stewart, and Aiana while they were deliberating. Based on the
timeline of the deliberations and the readbacks, “it appears that the jury was not allowed
to deliberate for more than thirty minutes at any one session before the foreperson, who
was adamantly on the side of guilt, would essentially end discussions by making those
jurors listen to the read back she selected.” Overall, the jury was “probably only allowed
to engage in discussions with each other for about two hours before rendering a verdict.”
Defendant argued that “[t]he foreperson led the discussion, controlled the notes,
controlled the readback, and ultimately controlled the verdict.” She “used un[due]
influence on the jurors who wished to vote not guilty, and the hold out jurors were
coerced into ‘admitting’ they were ‘wrong,’ as opposed to being allowed to discuss the
evidence as they saw it and potentially sway other jurors in their favor.”
Defendant asked the trial court to release jury identifying information so that he
could conduct an investigation related to a motion for a new trial based on this
misconduct.
On August 10, 2022, the trial court held a hearing on the motion. After reviewing
the briefs and hearing arguments from the parties, the trial court denied the motion.
As to Juror No. 8, who initially believed defendant was not guilty, the trial court
“did not detect any facts to support that there was any impropriety that took place in the
course of Juror [No.] 8 changing his mind. In other words, the best [the court could] tell
Juror [No.] 8 didn’t indicate that there was any undue influence or excessive coercion or
pressure or anything that was really impermissible at all in term[s] of changing his mind.
He just said he changed his mind, was convinced to change his mind. Not that there was
any type of impropriety. Of course jurors changing their minds is part of the process. In
fact, we tell jurors all the time in the jury instructions do not hesitate to change your mind
21.
if you’re convinced you’re wrong but do not change your mind just because of pressure.”
Additionally, based on Juror No. 8’s statements, there was no indication that the other
jurors who initially believed defendant was not guilty changed their minds because of
inappropriate conduct. The trial court also held that even if it were “to go down that
avenue,” it would “very clearly [be] an invasion of the mental processes of the jurors,”
which is “not an appropriate basis for exploration and inquiry.”
As to defense counsel’s assertion that Juror No. 9 looked “dejected and beaten
down,” the trial court found that it was too speculative to support the release of juror
information.
Finally, the trial court noted that if any juror felt coerced to vote a certain way, that
juror could have spoken to the bailiff or counsel after trial. Additionally, all the jurors
were polled in open court as to whether they supported the verdict, and they all supported
it.
The trial court concluded:
“Ultimately I do not feel that there was sufficient factual basis for
me to conclude or have a reasonable belief that jury misconduct occurred.
There’s no reasonable factual basis for me to reach that conclusion and
when I look at the reasons for the release—potential release of information,
it just doesn’t meet the burden. On top of that I also look at the public
policy. There’s strong public policy in favor of protecting the personal
identifying information of the jurors and then it becomes very clear to me
that the motion should be denied. Obviously the jurors are volunteers
essentially and we really have to protect their privacy, respect their
deliberations, respect their efforts and to have them be contacted after their
service to be questioned about the process it can happen honestly but it
needs to have a good reason to really invade their privacy like that and the
reasons are not sufficient so for that reason I will deny the motion.”
B. Background on Defendant’s Second Motion for Release of Jury
Identifying Information
On October 26, 2022, defendant filed a motion for new trial through which
defendant made a second motion for release of jury identifying information. The motion
was based on statements from defendant’s brother, defendant’s wife, defendant’s mother,
22.
and defendant’s father.12 The statements made were not identical, and there were
inconsistencies as to whether the prosecutor or defendant’s wife initiated the
conversation. However, all four stated that, in the hallway outside of the courtroom, near
the end of the trial, the prosecutor commented on the strength of the evidence he
presented. The prosecutor stated something along the lines of “It’s 4 against 1[,] [e]asy
win,” “I’ve got 4 witnesses and it’s common sense,” or “It’s already done.” Once the
prosecutor realized he was talking to defendant’s family, he left. Defendant’s wife stated
that at least one juror heard the prosecutor’s comments.
Defendant argued that the prosecutor’s statements violated a court order not to
discuss the case where jurors could hear. Additionally, the statements directly
contradicted the instructions provided to the jury. The prosecutor counted the number of
witnesses on each side, which the jury was instructed not to do. The prosecutor
commented on the fact that defendant did not testify, which the jury was instructed not to
consider. Finally, the prosecutor made the comment before the defense presented any
evidence, while the jury was instructed to not form an opinion about the case “until the
evidence has been concluded.”
Accordingly, defendant asked the trial court for juror identifying information so
that he could “further investigate the misconduct.” The prosecutor opposed the motion.
On November 9, 2022, the trial court held a hearing on the motion. Defendant’s
wife testified at the hearing that she was sitting in the hallway outside of the courtroom
with her in-laws. One juror was standing close to her and about 10 other jurors were also
in the hallway. The prosecutor walked out of the courtroom and asked defendant’s
family, “What do you think?” Defendant’s wife asked, “What do you mean?” The
prosecutor stated, “It’s only common sense.” Defendant’s wife replied, “Everybody
wasn’t born with common sense.” The prosecutor also stated that he had four witnesses.
12 While identified as defendant’s father, it appears the statement was provided by
defendant’s second stepfather.
23.
The prosecutor stopped talking to defendant’s wife and her in-laws after he realized they
“were for [defendant].” This occurred after the trial had ended.
The trial court denied the motion. The trial court found that only one witness,
defendant’s wife, “identified that the jurors were potentially present.” Not one other
witness stated that jurors were present. In fact, “even one of the defense[’s] own
witnesses said there were no other people around.” And even if a juror was present,
nothing the prosecutor said “was inadmissible.” Instead, it was “the same type of thing”
as what the prosecutor argued in his closing argument. Moreover, the jurors were
instructed to disregard anything they saw or heard outside of the courtroom, “even if it
[was] said or done by one of the parties or attorneys.”
C. Applicable Law
In a criminal proceeding, the trial court’s record of the trial jurors’ “personal juror
identifying information” must be sealed “[u]pon the recording of [the] jury’s verdict.”
(Code Civ. Proc., § 237, subd. (a)(2).) Pursuant to Code of Civil Procedure section 206,
subdivision (g), “a defendant or defendant’s counsel may, following the recording of a
jury’s verdict in a criminal proceeding, petition the court for access to personal juror
identifying information within the court’s records necessary for the defendant to
communicate with jurors for the purpose of developing a motion for new trial or any
other lawful purpose.” “The petition shall be supported by a declaration that includes
facts sufficient to establish good cause for the release of the juror’s personal identifying
information.” (Code Civ. Proc., § 237, subd. (b).) If a defendant makes “a prima facie
showing of good cause,” the court shall set a hearing.13 (Ibid.)
“ ‘[A] prima facie showing refers to those facts demonstrated by admissible
evidence, which would sustain a favorable decision if the evidence submitted by the
13 The trial court need not set a hearing if there is a “compelling interest against
disclosure” (Code Civ. Proc., § 237, subd. (b)), but no one argues there is such an interest
here.
24.
movant is credited.” (People v. Johnson (2015) 242 Cal.App.4th 1155, 1164, italics
omitted.)
“Good cause, in the context of a petition for disclosure to support a motion for a
new trial based on juror misconduct, requires ‘a sufficient showing to support a
reasonable belief that jury misconduct occurred ….’ ” (People v. Cook (2015)
236 Cal.App.4th 341, 345.) “Good cause does not exist where the allegations of jury
misconduct are speculative, conclusory, vague, or unsupported.” (Id. at p. 346.) The
misconduct alleged must be “ ‘of such a character as is likely to have influenced the
verdict improperly.’ ” (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.)
D. Standard of Review
A trial court’s denial of a motion for release of jury identifying information is
reviewed for abuse of discretion. (People v. Munoz (2019) 31 Cal.App.5th 143, 165.)
E. Analysis
As to defendant’s first motion for release of jury identifying information,
defendant argues that “counsel’s declaration showed a basis to investigate whether the
foreperson exercised coercive undue influence over the jurors who wanted to vote not
guilty. The trial court failed to address the foreperson’s coercive method of wearing
down the other jurors by putting them on the spot instead of engaging in discussion, and
the court failed to address defense counsel’s assertion that the foreperson’s repeated
readbacks cut off productive deliberation.”
Defendant’s argument is without merit.
It is true the language the foreperson allegedly used, that she “got” jurors to admit
certain things, is strong. However, the trial court instructed the foreperson to “see to it
that [the] discussions are carried on in an organized way and that everyone has a fair
chance to be heard,” and it appears that this is exactly what the foreperson did.
There is no evidence that the foreperson attempted to “wear[] down the other
jurors by putting them on the spot instead of engaging in discussion.” Instead, it appears
25.
the foreperson guided the discussions and made sure that each juror gave their views on
each fact. There is nothing before us suggesting the process was intended to be, or
inherently was, coercive. There is also nothing before us suggesting that in controlling
the “pace” of the deliberations the foreperson “cut off productive deliberation,” as argued
by defendant. In fact, according to defense counsel’s declaration, one of the jurors who
initially thought defendant was innocent stated that “he had been convinced to change his
vote.” Nothing in this statement suggests that the juror witnessed coercive conduct.
Thus, the evidence presented by defendant, even if credited, does not support a
reasonable belief that jury misconduct occurred, and the trial court did not abuse its
discretion in denying defendant’s first motion for juror identifying information.
As to the second motion, defendant argues that the trial court weighed the
evidence, which was error at the prima facie stage. Defendant further argues that the
prosecutor’s comment(s) “may have improperly impacted at least one juror’s
consideration of the evidence at trial at a time when the jurors were supposed to presume
[defendant] innocent and to keep an open mind going into the defense presentation of its
case.”
This argument is also without merit. Defendant’s second motion focused almost
entirely on statements made by the prosecutor. Even crediting the testimony that a juror
heard the prosecutor’s comments, there is no evidence in the record suggesting that even
one juror considered the comments during deliberation or otherwise used the statements
in an improper way. Moreover, as the trial court pointed out, “the jurors [were]
specifically instructed the only evidence to consider is what is presented … in court and
to specifically disregard anything [they] see or hear outside of the courtroom even if it is
said or done by one of the parties or attorneys.” We presume jurors understand and
follow a court’s instructions (People v. Sanchez (2001) 26 Cal.4th 834, 852), and we see
no reason to deviate from that presumption here.
26.
As the allegations of juror misconduct are speculative and unsupported, the trial
court did not abuse its discretion in denying defendant’s second motion for juror
identifying information.
IV. The Trial Court Erred When It Denied Defendant’s Motion to Strike All
Enhancements
A. Additional Background
On October 28, 2022, defendant filed a sentencing motion. Among other things,
defendant asked the trial court to strike all enhancements pursuant to section 1385 and to
impose the lower term on count 2 pursuant to section 1170. Defendant’s sentencing
motion included letters of support from his friends and family.
As to the request to strike the enhancements, defendant argued that three
mitigating circumstances applied: multiple enhancements were alleged (§ 1385,
subd. (c)(2)(B)), applying the enhancements could result in a sentence over 20 years
(§ 1385, subd. (c)(2)(C)), and “[t]he current offense [was] connected to prior
victimization or childhood trauma” (§ 1385, subd. (c)(2)(E)). According to defendant, his
“father was murdered before [defendant’s] first birthday. His stepfather of four years was
abusive, before he was murdered as well. By the age of six, [defendant] had lost two
father figures and experienced abuse himself.”
Defendant’s request for imposition of the lower term on count 2 pursuant to
section 1170 was also based on the alleged childhood trauma.
Defendant’s sentencing hearing was held on November 9, 2022. At the hearing,
the trial court denied defendant’s request to strike all enhancements because this case was
“very serious” and because defendant “has a very long and extensive criminal history …
that … is full of very serious crimes.”
The trial court also denied defendant’s request for imposition of the lower term on
count 2, stating:
27.
“To start that off with I do not believe that the defense has
established … that the defendant here has suffered psychological physical
childhood trauma within the meaning of the law and so there’s been some
indications of abuse, neglect, and so forth but that’s come out in a very kind
of conclusory way. Lots of the statements submitted by the defense
indicate that the defendant in this case … had, you know, a tough childhood
or something like that. But quite frankly from the tone of the letters and the
support it actually seems like he has a very supportive family environment
…. A lot of family members who seem to be doing fine in society and the
general references were to him choosing a life of drugs and/or him making
bad decisions and things of that nature. So there were no specifics that I
was able to discern in any of those witness statements or any other
evidence—doctors letters or counseling or anything to indicate that he
suffered the type of trauma, abuse, neglect, exploitation, et cetera that falls
within that. So I don’t find that to be a case where there’s the super
mitigant under [section] 1170 or [section] 1385 ….”
The trial court next addressed the mitigating and aggravating factors. When doing
so, the trial court noted it previously found true “that the defendant has engaged in violent
conduct that indicates a serious danger to society. That is a very important [factor] and
weighs in on my decision on which term to go with but also in denying the defense
motion to strike that prior and dismiss the enhancements. I do find that given the conduct
in this case as well as his prior conduct it does indicate a very serious threat to public
safety ….” Ultimately, the court found that the mitigating and aggravating factors
“essentially weigh each other out” and sentenced defendant to the middle term on
count 2.14
B. Applicable Law
On January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81)
went into effect (Stats. 2021, ch. 721, § 1), amending section 1385 “to specify factors that
the trial court must consider when deciding whether to strike enhancements from a
defendant’s sentence in the interest of justice.” (People v. Sek (2022) 74 Cal.App.5th
657, 674.)
14 The sentence on this count was stayed pursuant to section 654.
28.
Section 1385, subdivision (c)(1), provides: “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.” Section 1385,
subdivision (c)(2), provides: “In exercising its discretion under this subdivision, the court
shall consider and afford great weight to evidence offered by the defendant to prove that
any of the mitigating circumstances in subparagraphs (A) to (I) are present. 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.”
C. Standard of Review
We review issues of statutory construction de novo. (People v. Gonzales (2018)
6 Cal.5th 44, 49.) Our goal is to determine the legislative intent of the statute. (People v.
Johnson (2022) 79 Cal.App.5th 1093, 1108.) “Because the statutory language is
generally the most reliable indicator of that intent, we look first at the words themselves,
giving them their usual and ordinary meaning.” (Alford v. Superior Court (2003)
29 Cal.4th 1033, 1040, overruled on other grounds in Facebook, Inc. v. Superior Court
(Touchstone) (2020) 10 Cal.5th 329, 345, fn. 6.) When the statutory language is
unambiguous, its plain meaning controls. (Lungren v. Deukmejian (1988) 45 Cal.3d 727,
735.) We also “generally must ‘accord[] significance, if possible, to every word, phrase
and sentence in pursuance of the legislative purpose,’ and [the Supreme Court] ha[s]
warned that ‘[a] construction making some words surplusage is to be avoided.’ ” (People
v. Valencia (2017) 3 Cal.5th 347, 357.) Where the language supports more than
one reasonable construction, we may look to extrinsic aids, including the legislative
history, for additional guidance. (People v. Ruiz (2018) 4 Cal.5th 1100, 1105–1106.)
A trial court’s decision not to dismiss an enhancement pursuant to section 1385,
subdivision (c), is reviewed for abuse of discretion. (People v. Mendoza (2023)
29.
88 Cal.App.5th 287, 298.) “[A] trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.”
(People v. Carmony (2004) 33 Cal.4th 367, 377.) Additionally, “an abuse of discretion
arises if the trial court based its decision on impermissible factors [citation] or on an
incorrect legal standard.” (People v. Knoller (2007) 41 Cal.4th 139, 156; see also
Conservatorship of Bower (2016) 247 Cal.App.4th 495, 506.) Finally, “[w]hen being
sentenced, a defendant is entitled to decisions made by a court exercising informed
discretion. [Citation.] A court acting while unaware of the scope of its discretion is
understood to have abused it.” (People v. Tirado (2022) 12 Cal.5th 688, 694.)
D. Analysis
Defendant argues that the trial court erred in its application of section 1385,
subdivision (c)(2). Specifically, defendant argues that “[t]he court’s comment that
[defendant’s] conduct indicated a serious danger to society was an explanation of the
‘conduct in this case as well as his prior conduct’; it did not indicate that there would be a
future threat to public safety if the enhancement was dismissed.” The People argue that
“[p]art of this argument has been forfeited,” the trial court did find that dismissal of the
enhancement would endanger public safety, and any error was harmless.
To begin, even if this argument was forfeited, we exercise our discretion to address
it. (People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6 [“An appellate court is
generally not prohibited from reaching a question that has not been preserved for review
by a party”].)
As to the merits, we agree with defendant that the trial court erred. The court’s
analysis focused solely on defendant’s past conduct, and the court concluded that that
conduct indicated a “very serious threat to public safety.” However, in the context of
section 1385, the question is not whether a defendant’s past conduct indicates that he or
she currently poses a threat to public safety, but whether striking the enhancement would
likely endanger public safety. (§ 1385, subd. (c)(2).) “Although the current
30.
dangerousness of the defendant is an appropriate factor to consider, as it will have some
bearing on whether dismissing the enhancement would endanger the public, a crucial part
of the inquiry is how the dismissal of the enhancement will impact the length of the
defendant’s sentence.” (People v. Gonzalez (2024) 103 Cal.App.5th 215, 228.)
The People argue that “[t]his is a hyper-technical, hair-splitting distinction.” It is
true that in some cases this distinction may make little difference to the outcome. As
discussed above, trial courts may appropriately rely on a defendant’s past conduct when
determining whether striking an enhancement would likely endanger public safety. (See
People v. Mendoza (2023) 88 Cal.App.5th 287, 299 [finding that a trial court did not
abuse its discretion when it determined that dismissal of the enhancement would likely
endanger public safety in part because the defendant’s past conduct was “ ‘incredibly
harmful and dangerous’ ”].)
However, the distinction is important, especially in cases where the defendant is
sentenced to a life term. In this case, even if the trial court struck all enhancements,
defendant would still be serving a life term with a minimum parole eligibility date of
14 years. And, “an inquiry into whether public safety will be endangered by the
dismissal of an enhancement for a defendant serving a lengthy indeterminate sentence
should … take into account that the defendant’s release from prison is contingent on
review by the Board of Parole Hearings (and for murder convictions, by the Governor),
who will have the opportunity to assess the defendant’s dangerousness at that time.
[Citations.] That future review will act as a safety valve against a release that would
endanger the public and is relevant to a trial court’s analysis of whether the dismissal of
an enhancement imposed on a defendant serving an indeterminate prison term will
endanger public safety.” (People v. Gonzalez, supra, 103 Cal.App.5th at p. 228,
fn. omitted.)
Finally, while “ ‘[t]he trial court [was] not required to state reasons for declining to
exercise its discretion under section 1385’ [citations], and ‘is presumed to have
31.
considered all of the relevant factors in the absence of an affirmative record to the
contrary’ ” (People v. Brugman (2021) 62 Cal.App.5th 608, 637), here, the court provided
a detailed analysis. And nothing in that analysis suggests that it considered the impact
striking the enhancements would have on defendant’s sentence.
Accordingly, the trial court erred in its application of section 1385. Moreover,
even applying the Watson harmless error standard, the error was not harmless. Under this
standard, reversal is not required unless it is reasonably probable that defendant would
have obtained a more favorable result had the error not occurred. (Watson, supra,
46 Cal.2d at p. 836.) Here, had the court considered the length of defendant’s sentence
and that defendant’s release from prison is contingent on review by the Board of Parole
Hearings when ruling on defendant’s motion to strike all enhancements, it is reasonably
probable that the trial court would have dismissed at least one of the enhancements.
We next turn to defendant’s argument that we should strike both enhancements.
According to defendant, “[t]here is no evidence in the record of this case that striking the
enhancement at issue could possibly cause danger to the public because even if the
enhancement were to be struck, [defendant] would still be serving life in prison.”
Defendant also asserts the trial court’s finding that defendant’s “prior performance on
parole and [postrelease community supervision] was satisfactory in past cases” shows
that defendant “would not be a threat to public safety upon release.”
We disagree with defendant. As discussed above, defendant’s past conduct is an
appropriate consideration when determining whether striking an enhancement would
likely endanger public safety. Nothing in the text of section 1385 suggests that evidence
of such conduct cannot support a future dangerousness finding when defendant is serving
a life sentence, and defendant cites to no authority in support of this argument.
Moreover, the trial court found that “defendant’s prior performance on parole and
post-release community supervision was satisfactory at least on some of those priors”
(italics added). While this may be a factor for the trial court to consider on remand, this
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finding does not demonstrate, nor did the trial court find, that defendant “would not be a
threat to public safety upon release.”
Accordingly, we will remand the matter for a full resentencing at which the trial
court shall apply the appropriate standard in the first instance.15 (People v. Buycks (2018)
5 Cal.5th 857, 893.) While we are remanding the matter, we take no position on whether
the trial court should or should not strike any enhancements.16
V. Defendant’s Cumulative Errors Argument Fails
Finally, defendant argues that even if reversal is not required by any error standing
alone, “the combination of erroneously excluded evidence, the insufficient evidence of
premeditation and deliberation, and multiple instances of defense counsel’s deficient
performance combined to render [defendant’s] trial fundamentally unfair in violation of
the due process clause of the Fourteenth Amendment.”
This argument fails. “ ‘We have found no error, and where we assumed error, we
have found no prejudice. Nor do we discern cumulative prejudice.’ ” (People v. Duong
(2020) 10 Cal.5th 36, 75; People v. Westerfield (2019) 6 Cal.5th 632, 728.)
15 At oral argument, the parties discussed People v. Walker (2024) 16 Cal.5th 1024,
which our Supreme Court recently decided. In this case, the Supreme Court held that “if
the court does not conclude that dismissal would endanger public safety, then mitigating
circumstances strongly favor dismissing the enhancement. But ultimately, the court must
determine whether dismissal is in furtherance of justice. This means that, absent a danger
to public safety, the presence of an enumerated mitigating circumstance will generally
result in the dismissal of an enhancement unless the sentencing court finds substantial,
credible evidence of countervailing factors that ‘may nonetheless neutralize even the
great weight of the mitigating circumstance, such that dismissal of the enhancement is not
in furtherance of justice.’ ” (Id. at p. 1036.)
Walker does not address the standard for determining whether dismissal of an
enhancement would endanger public safety and is thus not relevant to the analysis herein.
However, on remand, if the trial court finds that dismissing enhancement(s) would not
endanger public safety, it shall apply the holding in Walker.
16 As we are remanding the matter for a full resentencing, we do not address
defendant’s other claims of sentencing error.
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DISPOSITION
Defendant’s sentence is vacated and the matter is remanded to the trial court to
conduct a full resentencing consistent with this opinion. In all other respects, the
judgment is affirmed.
DE SANTOS, J.
WE CONCUR:
FRANSON, Acting P. J.
MEEHAN, J.
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