People v. Dryden

Filed 2/16/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H043029*
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1367902)
v.
JAMES DRYDEN,
Defendant and Appellant.
A jury convicted James Dryden of two counts of assault with a deadly weapon.
He was sentenced under the Three Strikes law to 25 years to life, consecutive to 15 years.
He contends that the trial court committed prejudicial evidentiary error by admitting two
uncharged acts to prove absence of self-defense, and instructional error related to those
acts. He also raises cumulative prejudice, ineffective assistance of counsel, and
sentencing error.
We conclude that the trial court abused its discretion admitting the earlier (2007)
uncharged act under Evidence Code section 1101, subdivision (b) because defendant’s
state of mind cannot reasonably be inferred from that remote and dissimilar act.
Admitting the later (2012) uncharged act was also an abuse of discretion because the
evidence was substantially more prejudicial than probative under Evidence Code section
352. But we find no due process violation, and we find the errors harmless under state
law standards and not cumulatively prejudicial.
In resolving this appeal, we do not consider defendant’s pro se submission
*
received in November 2019. (See In re Barnett (2003) 31 Cal.4th 466, 469 [“represented
parties have no right to present their cases personally alongside counsel”].)
We further find no ineffective assistance of counsel and no abuse of discretion in
the denial of defendant’s request to reduce the convictions to misdemeanors. However,
we reach a different conclusion about the denial of defendant’s motion to strike his prior
convictions under Penal Code section 1385. As we will explain, strict application of the
Three Strikes law in this case resulted in a sentence so out of proportion to the offenses as
to be an abuse of discretion. We will reverse the judgment and remand the matter for
resentencing, with instructions to revisit the issue of defendant’s prior strike convictions,
and to implement sentencing reforms enacted during the pendency of this appeal
affecting prior prison term and prior serious felony enhancements.
I. BACKGROUND
Defendant was causing a late-night disturbance in a Jack in the Box restaurant in
October 2013. He was 51 years old, homeless, and intoxicated. According to witnesses,
defendant became belligerent and started throwing food when a young male unwittingly
took his seat in the restaurant. That male was 17-year-old L.J. who had spent the evening
socializing in a nearby motel room with several friends. They encountered defendant
around 2:30 a.m. after they left the room to get food.
Defendant was asked to leave Jack in the Box and in the parking lot he
encountered one or more young men, including L.J., Ben, Jesse (who arrived at the
restaurant by bicycle and was later involved in a stick fight with defendant), Nick (Jesse’s
friend and a United States Marine, also on a bicycle and involved in the stick fight),
possibly Sean (also involved in the stick fight), and possibly Juan (who had been
socializing with L.J., Ben, and Sean). Defendant was obstreperous and disorderly before
retreating across the street toward a Wienerschnitzel restaurant. Jesse testified that
defendant was kicking his leg, telling the group to “back away,” and saying things like
“you don’t know me,” and “I’ll kill all of you right now.” Witness accounts vary as to
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when the encounter became physical. Ben told an officer at the scene that he kicked
defendant who was being physically aggressive as they left Jack in the Box, but at trial he
testified that defendant was only verbally abusive at the outset and he did not kick him
until much later. L.J. testified that he went home after defendant struck him in the face
with “a stick or a cane.”
Sean testified that he left the motel a few minutes after L.J. and Ben went to Jack
in the Box. He went to Wienerschnitzel across the street from Jack in the Box but did not
order anything. As he was walking back to the corner and not paying attention to his
surroundings, he heard someone say “ ‘hey, you must be one of them too.’ ” He turned
around and defendant hit him three times with a stick. Sean fell, and as he was getting
up, Jesse and Nick approached on bicycles and started yelling at defendant. Sean walked
away during the fray and returned to Wienerschnitzel. He explained to an officer at the
scene, “I think he’s got a real reason, but [] I’m not, like the dude.”
Jesse testified that a short time after defendant left Jack in the Box, from his
vantage point inside the restaurant he could see defendant on the other side of the street
walking with a bamboo stick about four feet long. He saw defendant “bump” the front of
someone he did not recognize who turned out to be Sean. Jesse testified that defendant
“started wielding the stick toward” Sean, causing Sean to back up with his arms in the air.
Afraid for Sean, Jesse and Nick ran across the street with their bicycles and interceded.
Defendant swung the stick at Jesse, yelling “ ‘[y]ou’re one of them,’ ” and “ ‘[n]ow I’m
going to come after you.’ ” Jesse was struck on the back of the neck as he ducked to
protect his head. The stick splintered on impact, imbedding a piece of bamboo in Jesse’s
skin. The stick split in two as they wrestled with it. Jesse wielded one piece of the
broken stick in a defensive manner, and threw it at defendant who was coming at him.
He may have struck defendant.
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A motorist (who was an off-duty reserve police officer) called 911 and reported “a
man with a large stick … fighting with three other males. [¶]…[¶] Across from the Jack
in the Box.” In real time he saw “the man swinging the stick and the guys yelling at
him.” Then he observed the man with the stick “walking across the street now” and
arriving “at the Jack in the Box,” and the three males at the Wienerschnitzel. Then he
saw the three males “going across the street [¶]…[¶] running toward[]” the man with the
stick, and an officer (Officer Lau) arriving at the Jack in the Box. He testified at the
preliminary hearing “that the person with the stick was moving forward and the other two
guys were moving backward.”
A Wienerschnitzel employee testified that he spoke with defendant, whom he
recognized as a local homeless man, after seeing him in the Jack in the Box parking lot
confronted by several young men shouting obscenities. Laughing and appearing high,
defendant approached the Wienerschnitzel window and told the employee that the males
wanted to start a fight but “ ‘they don’t know who they are messing with.’ ”
The employee testified that a short while later defendant returned to
Wienerschnitzel with blood on his eye and asked to use the bathroom. He was followed
by three males who asked the employee to call 911. One had a stick and said he had been
hit. The employee called 911, reporting “a problem with … some drunk guy” and
“gangster guys” fighting with that person. The employee was shown a still image of Ben,
Sean, Jesse, Nick, and Juan captured from Officer Lau’s car-mounted video camera. He
recognized only Ben from that image as one of the three who came to the window, and he
specifically recalled Ben saying “ ‘we’re going to jump him.’ ” He recognized Juan from
a different photograph as also being at the window that night. According to the
employee, defendant crossed the street and entered Jack in the Box, the males followed
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defendant, and because of the way they were acting, the employee believed they were
“look[ing] for further trouble.”
Officers located defendant and a piece of a bamboo stick behind a retaining wall
next to Jack in the Box. Defendant, Sean, Ben, Jesse, and Nick were interviewed at the
scene. Defendant told Officer Lau repeatedly that he had been “rat-packed” by about
“six of them” as he was returning to Jack in the Box for his metal cane. He pointed out
Ben as the “main one” who told the others to “get him,” and Nick (who had already
identified himself to Officer Lau as a Marine) as the male who struck him in the eye with
a stick while the others said “[b]ang him, bang him.” He said he defended himself,
although he denied striking anyone. Officer Lau determined defendant to be the
aggressor and arrested him.
A forensic pathologist testified that the bamboo stick was capable of inflicting
great bodily injury or death. The injuries depicted in the photos of Sean and Jesse were
consistent with being struck by a bamboo stick, but the amount of force used could not be
determined from the photos. The pathologist explained that although uncommon, a blow
to the ear or neck area could lacerate or dissect the vertebral artery, causing death. She
considered Jesse lucky given his neck injury because it “only take[s] one blow at the
wrong angle” or with the “head being turned that can cause a devastating injury, which
can ultimately lead to death.”
Defendant was charged with two counts of assault with a deadly weapon on Sean
and Jesse. (Pen. Code, § 245, subd. (a)(1).) The information alleged he committed the
offenses using a dangerous and deadly weapon (a bamboo stick) within the meaning of
Penal Code sections 667 and 1192.7. The information alleged three prior felony
convictions under the Three Strikes law (Pen. Code, §§ 667, subd. (b)–(i); 1170.12); three
prior serious felony convictions within the meaning of Penal Code section 667,
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subdivision (a); and two prior prison terms within the meaning of Penal Code section
667.5, subdivision (b).
A jury convicted defendant of the assaults including the special allegation, and the
trial court found true the prior convictions. The trial court denied defendant’s motion to
reduce the counts to misdemeanors under Penal Code section 17, subdivision (b) and to
strike the prior convictions in the interest of justice under People v. Superior Court
(Romero) (1996) 13 Cal.4th 497. Defendant was sentenced to concurrent terms of 25
years to life consecutive to 15 years. The prior prison term enhancements were stayed.
II. DISCUSSION
A. UNCHARGED ACT EVIDENCE
1. Evidence Code Section 1101(b)
Evidence that a person committed a crime or other act is admissible to prove a fact
other than propensity, such as motive, intent, or absence of mistake or accident. (Evid.
Code, § 1101, subd. (b).) The Supreme Court has identified three factors essential to the
admissibility of such other-act evidence (sometimes referred to as evidence of an
uncharged act or an uncharged crime): “(1) the materiality of the fact sought to be
proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the
material fact; and (3) the existence of any rule or policy requiring the exclusion of
relevant evidence.” (People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson),
superseded on other grounds as stated in Clark v. Brown (9th Cir. 2006) 442 F.3d 708,
714, fn. 2.)
The first factor—materiality—is not at issue in this case, as the fact sought to be
disproved by the prosecution relates to defendant’s mental state: whether defendant had
an objectively reasonable belief in the need for self-defense. (People v. Humphrey
(1996) 13 Cal.4th 1073, 1082; People v. Wells (1949) 33 Cal.2d 330, 345 [self-defense is
6
“limited to such acts as are either actually reasonably necessary or which would appear to
a reasonable person, under the same circumstances, to be reasonably necessary”].) The
parties dispute the second and third factors under Thompson—relevance and exclusion.
Under the second factor, an uncharged act may be relevant circumstantial evidence
of motive or specific intent, undermining a self-defense claim. (People v. Demetrulias
(2006) 39 Cal.4th 1, 14 (Demetrulias) [uncharged act was circumstantial evidence of
motive and specific intent to rob, negating self-defense claim]; People v. Simon (1986)
184 Cal.App.3d 125, 130–131 (Simon) [jealousy motive, if shown by uncharged act, may
be admissible to establish same motive and undermine self-defense claim].) Under what
is referred to as the doctrine of chances, an uncharged act may be relevant “to prove
intent ‘as a generic notion of criminal volition or willfulness, including the various non-
innocent mental states accompanying different criminal acts.’ ” (Leonard, The New
Wigmore: Evidence of Other Misconduct and Similar Events (2d ed. 2019) § 7.3.2,
p. 486.)
Reciting from an earlier Wigmore treatise, our Supreme Court described the
doctrine of chances as capturing “ ‘the instinctive recognition of that logical process
which eliminates the element of innocent intent by multiplying instances of the same
result until it is perceived that this element cannot explain them all.’ ” (People v. Robbins
(1988) 45 Cal.3d 867, 879 (Robbins), quoting from 2 Wigmore, Evidence (Chadbourn
rev. 1979) § 302, at p. 241.) The doctrine embraces an improbability theory: “ ‘[A]n
unusual and abnormal element might perhaps be present in one instance, but [] the
oftener similar instances occur with similar results, the less likely is the abnormal element
likely to be the true explanation of them.’ ” (Robbins, at p. 879.) In other words, the
doctrine of chances applies where the coincidence between two (or more) events
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“becomes too abnormal, bizarre, implausible, unusual or objectively improbable to be
believed.” (The New Wigmore, supra, § 7.3.2, p. 487.)1
A trial court must “examine the precise elements of similarity between the
offenses with respect to the issue for which the evidence is proffered and satisfy itself
that each link of the chain of inference between the former and the latter is reasonably
strong.” (People v. Schader (1969) 71 Cal.2d 761, 775.) “If the connection between the
uncharged offense and the ultimate fact in the dispute is not clear, the evidence should be
excluded.” (Thompson, supra, 27 Cal.3d at p. 316.)
The third Thompson factor recognizes extrinsic policies limiting admissibility of
uncharged acts. Because “ ‘substantial prejudicial effect [is] inherent in [such]
evidence,’ ” uncharged acts are admissible under Evidence Code section 352 only if they
have substantial probative value. (Thompson, supra, 27 Cal.3d at p. 318; People v.
1 By way of illustration, the Supreme Court recognized the doctrine of chances as
a basis for inferring criminal intent in Demetrulias. The uncharged conduct in
Demetrulias—a robbery accomplished by assault occurring almost immediately after the
charged murder—showed the defendant acted with a motive to take the assault victim’s
money; a rational inference therefore could be drawn that the defendant acted with the
same motive for money rather than in self-defense when he stabbed the murder victim
hours earlier. (Demetrulias, supra, 39 Cal.4th at pp. 7, 14.) The uncharged assault was
also substantially similar to the murder to bear on the defendant’s specific intent to rob in
committing the murder: “Twice in one evening, the defendant entered an older man’s
home, confronted the man alone, and stabbed the man several times hard enough to inflict
serious wounds, including in both cases stab wounds to the chest.” (Id. at p. 16.) The
defendant acknowledged having pleaded guilty to the robbery and assault against the
second victim, yet he testified that he had acted in both instances in self-defense. (Id. at
pp. 8, 9, 19.) Invoking the doctrine of chances, the Supreme Court observed that a “jury
could rationally find it unlikely that defendant had the extremely bad luck to be attacked
within a short period of time by two older solitary men in ways that required him to use
potentially deadly force against the older men to repel the attacks.” (Id. at p. 16.)
Instead, the jury could rationally infer “that defendant probably attacked both men with
the same criminal intent—robbery.” (Ibid.)
8
Ewoldt (1994) 7 Cal.4th 380, 404 [“Evidence of uncharged offenses “ ‘is so prejudicial
that its admission requires extremely careful analysis’ ”]; People v. Lewis (2001) 25
Cal.4th 610, 637 [“ ‘[T]he probative value of the uncharged offense evidence must be
substantial and must not be largely outweighed by the probability that its admission
would create a serious danger of undue prejudice, of confusing the issues, or of
misleading the jury’ ”].) The probative value of evidence depends on the degree of
relevancy (the extent to which the evidence tends to prove an issue by logic and
reasonable inference), materiality (the importance of the issue to the case), and necessity
(the need to prove the issue by means of the uncharged act). (Thompson, at p. 318, fn.
20.)
A trial court’s rulings under Evidence Code sections 1101 and 352 are reviewed
for abuse of discretion (People v. Hendrix (2013) 214 Cal.App.4th 216, 239 (Hendrix)),
with attention paid to “ ‘the legal principles and policies that should have guided the
court’s actions.’ ” (Sargon Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 773.)
2. Evidence Presented of 2007 and 2012 Conduct
Defendant presented a defense through his recorded statement to Officer Lau that
he acted in self-defense against a group of young men who “rat-packed” him. To rebut
that defense, the prosecution sought to present evidence of several past altercations in
which defendant had also claimed self-defense. The trial court reasoned that prior claims
of self-defense would be admissible rebuttal evidence under Evidence Code section 1101,
subdivision (b) and Demetrulias to prove absence of a good-faith reasonable belief in the
need for self-defense, if the acts were “similar enough” to the instant case.
The prosecution offered that in 2007 defendant injured an elderly person by
strangulation, claimed self-defense to the responding officer, and later admitted there was
9
no threat requiring self-defense. The victim in that incident was defendant’s father who
had reported being choked when defendant tried to break into his home. Defendant had
reported that his father was mentally ill and started a fight, and defendant punched him to
get away. Regarding a 2012 assault, the prosecution offered that defendant was in an
altercation with a homeless person at a bus stop. Defendant was intoxicated, used his
cane to strike the victim in the head, and claimed self-defense both at the scene and at a
trial which resulted in an acquittal.
Ruling from the bench, the trial court noted five facts regarding the instant case:
defendant inflicted wounds; to the head; with an object; while intoxicated; and claimed
self-defense. The court observed in both the 2012 incident and the instant case that
defendant struck the victim in the head with a cane while intoxicated and claimed self-
defense, and defendant also claimed self-defense in the 2007 case. The court did not
address defendant’s argument that the uncharged acts evidence would be more prejudicial
than probative. Based on the prosecution’s case-in-chief and offers of proof regarding
assaults in 2007 and 2012, the trial court ultimately ruled that the two past assaults were
admissible. A 2005 assault was not admitted as other-act evidence because there
defendant did not claim self-defense. But that conviction was admitted as impeachment
evidence, along with five other felony convictions—burglary in 1989, assaults in 1999
and 2001, and the 2007 assault and associated burglary.)
At trial, a Los Angeles police officer testified regarding the 2007 incident that he
responded to a battery in progress at the home of defendant’s 66-year-old father where he
observed signs of forced entry into the home (a screen removed from an open window).
Defendant did not appear intoxicated, he had a small mark on his arm, and he told the
officer he had punched his mentally disturbed father who had bitten his arm. Defendant’s
10
father had a scraped arm, and lacerations on his chin and leg. He was upset and excited,
but he did not appear mentally ill. Defendant pleaded guilty to assault and burglary.
Regarding the 2012 incident, a Santa Clara County sheriff’s deputy testified that
he saw defendant at a bus stop strike a 41-year-old man with a metal cane several times,
and then grab a set of headphones from the man’s hands. Both men appeared homeless
and intoxicated, and defendant was enraged. The officer did not see the altercation start.
Defendant, who appeared uninjured, told the officer he and the other man knew each
other, the other man had hit him in the face twice with a closed fist, grabbed him, and
would not let him go. The other man was covered in blood, with injuries to his head and
face. Ten color photographs were admitted in evidence over defendant’s objection,
including photographs of the man holding a gauze pad to his face with a bloody hand; the
man, with a bloody face and bandaged head, being assisted by paramedics on a
backboard; blood pooled on the ground by the bus stop bench; a metal cane with blood on
the handle; and close ups of the man’s head injuries. Defendant was charged with assault
with a deadly weapon. The man died (for reasons unrelated to the charged incident)
before that case was tried to a jury in September 2013. The deputy testified at that trial,
and defendant was found not guilty.
3. Analysis
Defendant argues that the past acts lack substantial similarity from which to infer
non-innocent intent under the doctrine of chances. In determining relevancy under the
doctrine of chances, the question is whether, without relying on character inferences, the
occurrence of both acts may lead to a conclusion that the defendant did not act with an
innocent mental state in the charged act. The circumstances of both the charged and
uncharged acts determine the relevance and probative value of the evidence. (The New
Wigmore, supra, § 7.5.2., at p. 507; Robbins, supra, 45 Cal.3d at p. 880 [circumstances
11
of the uncharged act must be “sufficient to raise an inference that the [current] offense
was committed with the charged intent(s)”].)
a. The 2007 Evidence
The 2007 assault involved an altercation between defendant and his father.
Defendant sought entry into his father’s home by force. He physically fought his father
without using a weapon, and he pleaded guilty to assault and residential burglary. The
circumstances of the 2007 assault are similar to the instant case only in that defendant
committed an assault and initially claimed self-defense. But the conduct itself does not
increase the probability that defendant fabricated a self-defense claim several years later
under entirely different circumstances—against a group of strangers in a public place.
Unlike the facts in Demetrulias, where the uncharged assault occurred within hours of the
charged murder and the evidence showed a common motive (Demetrulias, supra,
39 Cal.4th at p. 14), here we have unrelated assaults occurring six years apart with no
similarities in circumstance or shared logical nexus. Nor does the decision to plead guilty
to the 2007 charges allow a reasonable inference as to defendant’s mental state in the
instant case, where he maintained his self-defense claim at trial. Given the absence of a
logical nexus between the prior offense and defendant’s disputed mental state, the trial
court’s ruling was an abuse of discretion. (See People v. Durham (1969) 70 Cal.2d 171,
186–187 [the evidence should be excluded if a connection between the uncharged offense
and the ultimate fact in dispute is not clear]; People v. Sam (1969) 71 Cal.2d 194, 203.)
b. The 2012 Evidence
Defendant argues the similarities in the 2012 acts and the instant case (defendant
was intoxicated, struck victims using a cane or walking stick, and told officers he had
acted in self-defense) are not probative of his mental state in the current case because the
proffered facts demonstrated that the 2012 self-defense claim was genuine. In a related
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argument, he urges that the trial court erred under Simon by failing to make a finding
under Evidence Code section 403, subdivision (a), that sufficient evidence existed for the
jury to determine the existence of that preliminary fact. Respondent counters that the
2012 evidence showed defendant inflict force in excess of what was reasonable under the
circumstances, demonstrating that he acted with a non-innocent intent to escape criminal
liability.
i. Evidence Code section 403
The prior act evidence in Simon showed two motives, one of which (jealousy) was
relevant to the defendant’s motive in the charged case. (Simon, supra, 184 Cal.App.3d. at
pp. 128–129.) Because the prior act was admissible only if it was motivated by jealousy,
the Simon court directed the trial court on remand to make a preliminary determination
under Evidence Code section 403 whether the prior act evidence could support a jury
finding under a preponderance standard that the prior act was motivated by jealousy.
(Id. at p. 134.) Though the trial court here rejected defendant’s request to conduct a
hearing under Evidence Code section 403, finding the Simon case to be “in disagreement
somewhat” with the more recent Supreme Court opinion in Demetrulias,2 we infer from
the trial court’s acceptance of the prosecution’s offer of proof that the evidence would be
sufficient for the jury to find that defendant acted in 2012 with a non-innocent intent.
Indeed, the purpose of the proffer was to identify the similarities to the charged assaults
2The trial court ruled the evidence admissible with a limiting instruction as in
Demetrulias, that “the evidence, ‘if believed’ was not to be considered as showing
defendant’s bad character or ‘disposition to commit crimes,’ but only for the limited
purpose of ‘determining if it tends to show’ a characteristic ‘method, plan or scheme’
similar to that used in the charged crime, the ‘intent which is a necessary element of the
crime charged,’ or ‘a motive for the commission of the crime charged.’ ” (Demetrulias,
supra, 39 Cal.4th at p. 14.)
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(including whether defendant’s claim of self-defense was genuine), and the trial court
was aware that the standard of proof on that issue is a preponderance of evidence.
Defendant argues that non-innocent intent cannot be inferred from the 2012
incident because it is not objectively improbable that a person in his circumstances could
repeatedly face situations requiring self-defense. Under the doctrine of chances, the
degree of relevance of an uncharged act will vary “ ‘according to the probability that the
act could be repeated, within a limited time and under given circumstances, with an
innocent intent.’ ” (Robbins, supra, 45 Cal.3d at p. 880.) Drawing from the same
authority as did the Supreme Court in Robbins, this court has explained that objective
improbability (supporting an inference of wrongdoing) is based on three threshold
criteria: “(1) each uncharged incident must be ‘roughly similar to the charged crime’
[citation]; (2) counting both charged and uncharged incidents, the accused must have
been ‘involved in such events more frequently than the typical person’ [citation]; and (3)
the existence of mens rea ‘must be in bona fide dispute,’ such that the prosecution has ‘a
legitimate need to resort to the uncharged misconduct evidence to prove intent’
[citation].” (People v. Rocha (2013) 221 Cal.App.4th 1385, 1395, citing Imwinkelried,
The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The
Doctrines Which Threaten to Engulf the Character Evidence Prohibition (1990) 51 Ohio
St. L.J. 575, 593.)
Defendant urges that the second of Imwinkelried’s criteria is not met here because
acting in self-defense is not an infrequent occurrence for a person living on the streets.
We agree that homeless persons are more vulnerable to violence than the housed
population. (See People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 747 [recognizing
that “homeless individuals are victims of violent crime at a much higher rate than the
general population”].) But we are not persuaded that the two violent encounters
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involving defendant represent such commonplace occurrences among the homeless
population that they cannot support an inference of wrongdoing. Having remained in
custody from arrest to acquittal on the 2012 case, defendant had been living on the streets
for only 19 days between the assaults. Based on that temporal proximity and the
similarities between the events, a reasonable jury could infer that on both occasions
defendant acted with a non-innocent mental state. (See Demetrulias, supra, 39 Cal.4th at
p. 16 [jury could infer from the totality of evidence that the defendant acted with the
same criminal intent in two instances].)
ii. Evidence Code section 352
We reach a different conclusion when we consider the effect of the evidence
admitted about the 2012 event. “ ‘[T]he probative value of the uncharged offense
evidence must be substantial and must not be largely outweighed by the probability that
its admission would create a serious danger of undue prejudice, of confusing the issues,
or of misleading the jury’ ” under Evidence Code section 352. (People v. Lewis (2001)
25 Cal.4th 610, 637.)
The parties disputed whether defendant acted in self-defense in the 2012 incident.
A police officer in his patrol car saw defendant striking the victim. Because the officer
did not see how the altercation began, the prosecution discredited defendant’s self-
defense claim by establishing through testimony and photographs that defendant used
more force than was reasonably necessary to defend against any claimed aggression. But
the amount of force necessary and used in 2012 was not probative of whether defendant
had a legitimate need to use self-defense in 2013. The issue here is not whether
defendant used excessive force but whether a reasonable belief in perceived danger
justified his use of force against Sean and Jesse. By focusing on the quantum of force
used, the 2012 evidence would cause the jury to prejudge defendant on the basis of
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extraneous character-based factors. (People v. Foster (2010) 50 Cal.4th 1301, 1331
[“ ‘ “the jury might be unable to identify with a defendant of offensive character, and
hence tend to disbelieve the evidence in his favor” ’ ”].) The graphic photographs
depicting defendant as callous and violent were inflammatory and created a substantial
danger of evoking an emotional bias against him. (Ibid.)
We reject respondent’s argument that the probative value of the 2012 incident was
substantial given the similarities to the instant case, and thus outweighed any tendency to
evoke emotional bias. By itself, the force used in 2012 is not probative of defendant’s
mental state in 2013. Although the events were similar (defendant assaulted someone
using a cane or stick while intoxicated), that does not mitigate the inflammatory nature of
the 2012 photographs, particularly when the injuries to the homeless man appeared
serious, while the injuries to Sean and Jesse were relatively minor and did not require
medical attention.
Evidence of the 2012 incident was further prejudicial because in this case the jury
was aware that defendant had been acquitted of the 2012 charge. That circumstance can
produce “ ‘a “tendency to condemn, not because [defendant] is believed guilty of the
present charge, but because he has escaped unpunished from [an] other offense[].” ’ ”
(People v. Foster, supra, 50 Cal.4th at p. 1331.)
Although a limiting instruction can minimize the danger that a jury will consider
evidence for an improper purpose (Hendrix, supra, 214 Cal.App.4th 216, 247), the
court’s instruction here did not serve that end given the issues in this case. Using
CALCRIM No. 375, the jury was cautioned appropriately that it must not conclude from
the 2012 evidence “defendant has a bad character or is disposed to commit a crime”; the
evidence “is not sufficient by itself to prove that the defendant is guilty”; and the
prosecution “must still prove each charge and allegation beyond a reasonable doubt.”
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The same instruction, however, permitted the jury to consider the “evidence of other
behavior by the defendant” if it decided he had committed “the uncharged acts.” But it
was not disputed that defendant committed the assaults on his father in 2007 and the
homeless man in 2012; the issue was whether he had genuine self-defense claims in those
instances. The instruction therefore did not squarely address the danger created by the
uncharged act evidence, allowing the jury to determine defendant’s mental state based on
propensity. (Hendrix, at pp. 249–250.)
Respondent argues the instruction appropriately limited the jury’s consideration to
whether the uncharged acts “ ‘tend[] to show a motive, self-defense or some other
innocent mental state,’ or other relevant mental states.” The trial court adopted
CALCRIM No. 375 to include: “If you decide that the defendant committed the
uncharged acts, you may, but are not required to, consider that evidence for the limited
purpose of deciding whether or not this evidence tends to show a motive, self-defense or
some other innocent mental state, or a characteristic method, plan or scheme.” The
instruction does not make clear that the uncharged act evidence may be considered
specifically for establishing “motive, self-defense[,] some other innocent mental state, or
a characteristic method, plan or scheme” in this case. Instead, it allowed the jury to
consider motive and characteristics of the uncharged acts themselves, neither of which
was relevant to the self-defense inquiry in the instant case.
iii. The errors do not require reversal
Error in a criminal case is considered harmless unless it resulted in a miscarriage
of justice. (Cal. Const., art. VI, § 13.) The defendant must demonstrate that but for the
error “it is reasonably probable that a result more favorable to the [defendant] would have
been reached.” (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant contends that
standard is met because the prosecution’s case was not compelling and the prosecutor
17
used the prior act evidence to argue defendant has a propensity for violence. Respondent
counters that defendant’s role as initiator and aggressor was supported by the totality of
the record because “not a single witness testified that [Ben] or any one of his friends did
anything to place [defendant] in reasonable fear for his safety before [defendant]
physically assaulted one or more of them.” But the question is not whether evidence in
the record is sufficient to support the jury’s verdict. In examining an error for prejudicial
effect, we do not view the evidence or presume facts in favor of the verdict. (People v.
Mil (2012) 53 Cal.4th 400, 418.) Rather, we review the entire record to determine
whether “it is reasonably probable that a result more favorable to [defendant] would have
been reached in the absence of the error.” (Watson, at p. 836.)
We give full consideration to the showing that defendant was outnumbered by
several young men in the Jack in the Box parking lot, and to Ben’s statement at the scene
that he kicked defendant at that time. But we see no evidence suggesting that Sean was
aggressive toward defendant which would justify defendant’s use of force against Sean or
against Jesse, who came to Sean’s aid.
In the context of the altercation in the parking lot, we consider whether it is
reasonably probable that one or more jurors would conclude that the prosecution failed
meet its burden of proving beyond a reasonable doubt that defendant did not act in lawful
self-defense if this case were tried without the erroneous admission of the prior acts
evidence. (People v. Soojian (2010) 190 Cal.App.4th 491, 523.) Lawful self-defense
requires (1) that defendant reasonably believed he was in imminent danger; (2) that the
immediate use of defensive force was necessary to defend against that danger; and (3)
that defendant used no more force than necessary to defend against the danger.
(CALCRIM No. 3470; People v. Minifie (1996) 13 Cal.4th 1055, 1065 [what is
18
reasonable under the circumstances is determined from the point of view of a reasonable
person in the defendant’s position].)
We reject defendant’s argument that individually or cumulatively the evidentiary
errors rise to the level of a due process violation, which would place the burden on the
prosecution to show harmlessness beyond a reasonable doubt. The introduction of
improper evidence against a defendant does not amount to a violation of due process
unless the evidence “is so extremely unfair that its admission violates ‘fundamental
conceptions of justice.’ ” (Dowling v. United States (1990) 493 U.S. 342, 352.) For the
erroneous admission of evidence to amount to a denial of due process, the evidence must
have been “ ‘sufficiently material to provide the basis for conviction or to remove a
reasonable doubt that would have existed on the record without it.’ ” (Johnson v. Ross
(2nd Cir. 1992) 955 F.2d 178, 181.) That standard has not been met here.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that trial counsel rendered ineffective assistance by not objecting
to Officer Lau’s testimony regarding his reasons for arresting defendant. Officer Lau
testified that he considered defendant to be a suspect based on the evidence, statements
provided by the victims and witnesses, and the demeanor of the victims and defendant.
He testified that defendant was arrested even though he claimed to be the victim, “[b]ased
on the statements from all the witnesses” and Jesse’s injuries and complaint of pain.
According to defendant, Officer Lau implicitly opined that the young men and the reserve
officer who called 911 were being truthful, and defendant was not, which constituted
inadmissible lay opinion and counsel should have objected.
An ineffective assistance claim requires a showing both that counsel’s
performance fell below an objective standard of reasonableness and that defendant was
prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668,
19
687.) The record on appeal must “affirmatively disclose[] that counsel had no rational
tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572,
581.) And defendant must show a reasonable probability of a more favorable result but
for trial counsel’s errors. (Strickland, at p. 694.) A reasonable probability is “a
probability sufficient to undermine confidence in the outcome.” (People v. Williams
(1997) 16 Cal.4th 153, 215.) Defendant has not met that burden here.
Lay opinion testimony is admissible if it is “[r]ationally based on the perception of
the witness,” and “[h]elpful to a clear understanding of his testimony.” (Evid. Code,
§ 800, subds. (a)–(b).) But lay opinion “about the veracity of particular statements by
another is inadmissible on that issue.” (People v. Melton (1988) 44 Cal.3d 713, 744.) A
law enforcement officer’s testimony regarding the focus of a criminal investigation is not
considered inadmissible lay opinion. (People v. Virgil (2011) 51 Cal.4th 1210, 1254.) In
Virgil, a detective testified that he began to consider the defendant a suspect in a murder
investigation because the composite of the suspect resembled the defendant, whom he
had recently interviewed about an unrelated burglary. (Id. at p. 1230.) The Virgil court
held that the challenged testimony “was based on the detective’s perceptions and was
helpful for the jury to understand how [the detective] came to suspect defendant was
connected to the [charged] homicide.” (Id. at p. 1254.) The same cannot be said here.
Defendant was arrested at the scene. Officer Lau’s testimony regarding his perceptions
of the scene and the individuals involved in the altercation was unnecessary to explain
how the investigation unfolded and resulted in defendant’s arrest. His observations about
the demeanor of the victims, witnesses, and defendant and his consultation with the
officers who interviewed the victims and witnesses went beyond explaining his
investigative steps. Although an officer’s testimony with respect to whether he believed
a witness may be admitted to “ ‘assist[] the jury in understanding the actions of the
20
police’ ” (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33), because there was no
need for such assistance here the testimony at issue served only as implicit vouching for
the credibility of certain participants over that of defendant.
Even though an objection to some of Officer Lau’s testimony should have been
made and sustained, defendant has not shown prejudice. It is axiomatic that Officer Lau
believed he had grounds to arrest defendant. But that decision was not central to the trial,
which focused on the recollections of defendant, the victims, and the witnesses. The
video-recorded interviews of Sean and defendant were played for the jury, along with the
recorded portion of Ben’s interview. The jury also saw the footage from Officer Lau’s
car-mounted video camera as he arrived on scene and conducted his investigation. The
jury was instructed, “You must decide what the facts are. It is up to all of you, and you
alone, to decide what happened, based only on the evidence that has been presented to
you in this trial,” and “[y]ou alone must judge the credibility or believability of the
witnesses.” Nothing in the record undermines our confidence that the jury followed those
instructions and decided the issues based on its own assessment of the evidence. (See
People v. Riggs (2008) 44 Cal.4th 248, 300.)
C. SENTENCING ISSUES
1. Discretion Under Penal Code Section 17(b)
A trial court has discretion to reduce an assault to a misdemeanor at the time of
sentencing. (Pen. Code, § 17, subd. (b)(1), (3).) Factors relevant to the trial court’s
decision include “ ‘the nature and circumstances of the offense, the defendant’s
appreciation of and attitude toward the offense, [and] his traits of character as evidenced
by his behavior and demeanor at the trial.’ ” (People v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 978 (Alverez).) Courts may also consider the sentencing objectives set
forth in California Rules of Court, rule 4.410. (Ibid.) Those include protecting society,
21
punishing the defendant, deterring crime, encouraging the defendant to lead a law-
abiding life, and preventing the defendant from committing new crimes. (Cal. Rules of
Court, rule 4.410(a).) The trial court’s discretion under Penal Code section 17(b) is
broad, and it will not be disturbed on appeal unless it is clearly shown the decision was
irrational or arbitrary. (Alvarez, at p. 977.) Absent such a showing, we presume the trial
court acted to achieve legitimate sentencing objectives. (Ibid.)
In declining to reduce the offenses here to misdemeanors, the trial court
commented: “It’s not a good idea for any judge in any circumstance to substitute his or
her personal opinion for the verdict of the jury. [¶] If they’re going to ignore the jury,
why bother to have juries.” Defendant argues the trial court misunderstood (and thus
abused) its discretion by acceding to the jury’s guilty verdict. Defendant is correct that a
jury’s verdict does not inform the sentencing court’s discretion under Penal Code section
17; otherwise, a conviction by jury would preclude reduction under subdivision (b) of
that section. But the trial court further explained its ruling: “And also I think it would be
inappropriate in this case, in view of the seriousness of the offenses and the defendant’s
extreme – extensive criminal history and the defendant’s version of the offense, which I
am sure is heartfelt but at odds with the testimony of everybody else who was present at
the time. It could have been very serious if the stick, bamboo stick or cane, as it was
being used, had hit in a slightly different area. For that reason, I think that the reduction
for misdemeanor is inappropriate.” he trial court’s reasoning focused on the facts of the
case, defendant’s criminal history, and public safety, all appropriate considerations upon
which to deny the requested relief. (Alvarez, supra, 14 Cal.4th at p. 978 [“[A]
determination made outside the perimeters drawn by individualized consideration of the
offense, the offender, and the public interest” constitutes an abuse of discretion].)
22
Defendant argues that the trial court abused its discretion by failing to give
“reasoned consideration” to his background, mental condition, age, and the circumstances
of the offenses. The Supreme Court in Alvarez explained that the trial court, in
exercising its authority to reduce a wobbler in a case involving three prior strikes, must
undertake “an intensely fact-bound inquiry taking all relevant factors, including the
defendant’s criminal past and public safety, into due consideration; and the record must
so reflect.” (Alvarez, supra, 14 Cal.4th at pp. 981–982.) In declining to reduce the
offenses here, the trial court stated that it had read and considered defendant’s moving
papers. The motion urged a misdemeanor sentence because the injuries were minor, the
victims were neither vulnerable nor faultless, the weapon was a hollow bamboo stick, and
but for his prior convictions which were closely connected to his chronic homelessness
and mental health issues, the offenses likely would have been charged as misdemeanors.
Defendant argued the assaults occurred after he was kicked in the chest, and his conduct
was mitigated by his history of sexual and physical abuse, substance abuse, mental
illness, and traumatic brain injury. Defendant supported his motion with a 2011
psychological assessment attributing anger control issues and debilitated daily
functioning to post-traumatic stress disorder and traumatic brain injury; a 2012 medical
evaluation (after being hit by a car as a pedestrian) noting bipolar disorder, alcoholism,
post-traumatic brain injury, post-traumatic stress disorder, and facial bone fractures; and
county jail mental health records from 2014 noting bipolar disorder, post-traumatic stress
disorder, alcohol dependence, and positive results from medication (Effexor, Remeron,
and lithium).
We do not read Alvarez as requiring the trial court to reiterate defendant’s
argument on the record when declining to reduce the offenses to misdemeanors. The trial
court stated that it had read defendant’s moving papers, and the record reflects a decision
23
based on “individualized consideration of the offense, the offender, and the public
interest.” (Alvarez, supra, 14 Cal.4th at p. 978.) While the record here may also have
supported a different conclusion, we find no error in light of the deferential standard of
review.
2. Discretion Under Penal Code Section 1385
A trial court has discretion to dismiss a prior conviction alleged under the Three
Strikes law. (Pen. Code, § 1385, subd. (a); People v. Superior Court (Romero) (1996)
13 Cal.4th 497.) In exercising its discretion, the court must consider whether “in light of
the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) Factors in
aggravation and mitigation listed in the California Rules of Court may be relevant to the
court’s inquiry. (People v. Cuff (2001) 87 Cal.App.4th 991, 1004.)
We review the denial of a motion to dismiss a strike allegation for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) Abuse of discretion in
failing to strike a prior conviction occurs in limited circumstances: where the trial court
is not aware of its discretion; where the trial court considers impermissible factors; or
where applying the Three Strikes law would produce an arbitrary, capricious, or patently
absurd result under the specific facts of a particular case. (Id. at p. 378.) A reviewing
court’s disagreement with the trial court’s weighing of proper factors (as distinct from the
trial court’s reliance on improper factors in the weighing process) does not constitute an
abuse of discretion. (Id. at p. 379.)
24
Defendant has suffered three prior strike convictions: a 1989 conviction for
residential burglary (Pen. Code, § 459); a 2005 conviction for assault with a deadly
weapon (Pen. Code, § 245(a)(1)); and a 2007 conviction for residential burglary (Pen.
Code, § 459). The trial court denied defendant’s motion to strike the prior strikes, after
considering relevant factors and concluding that defendant did not fall outside the scope
of the Three Strikes law. The trial court considered the age of the prior convictions,
noting that “some” are remote in time, but also finding “it’s part of [defendant’s]
continuous history of criminal conduct” and violence. The court noted that the current
offenses are wobblers, and that defendant expressed remorse for his conduct. It
acknowledged as “possible” that defendant’s criminal history resulted from addiction, but
also observed that “it’s not true that every alcoholic becomes violent.” It found
defendant to be a dangerous person who has been unable to conduct himself as a law-
abiding citizen for long periods of time. It described defendant’s professed willingness
and ability to rebuild himself as “sort of true, except that… [m]ental health services have
been available for decades now, but no one can make anyone go and take advantage of
them.” In considering whether the present offenses were committed because of unusual
circumstances unlikely to reoccur, the trial court referred without elaboration to “the
similarity of these events to past offenses.” It acknowledged that “defendant has a life
long history of mental health issues,” but that “he also has a life long history of assaultive
behavior.” Perhaps most notably, the trial court considered whether punishment under
the Three Strikes law would be disproportionate to the severity of the current offenses,
stating “[t]hat might apply marginally,” but it concluded in denying the motion that a
Three Strikes sentence would not be disproportionate to defendant’s criminal history.
Although sentencing did not take place until two months after the hearing on the
motion, given defendant’s three prior strikes and the then-mandatory five-year
25
enhancements for three prior serious felonies (Pen. Code, § 667), it would have been
apparent when the trial court denied the motion that defendant would be sentenced to at
least 25 years to life consecutive to 15 years.
Repeating the points he raised at sentencing, defendant argues that the trial court
abused its discretion because (1) the 1989 conviction for residential burglary was old and
did not involve violence; (2) in the current case defendant was provoked and suffered
injury, while the victims suffered only slight injury; (3) had the court struck two or all
three of the prior strikes, defendant still would have been exposed to a significant
sentence; and (4) most significantly, the sentence fell outside the spirit of the Three
Strikes law because defendant had endured a violent and abusive upbringing, had been
homeless since his mid-teens, and had a long history of alcoholism and mental illness, all
of which contributed to his criminal conduct. The 2011 psychological assessment, 2012
medical evaluation, and 2014 jail treatment records appended to defendant’s motion
amply support the stated history and diagnoses, as we have previously summarized.
A trial court’s sentencing discretion is very broad, and rightly so. Among other
considerations, as a reviewing court we are not able to observe the demeanor of
defendants or witnesses, and we therefore do not substitute our discretion for that of the
trial court. Notwithstanding its broad discretion and our deferential standard of review, a
trial court’s ruling on a Romero motion remains reviewable. The sentence of 25 years to
life consecutive to 15 years imposed here presents that rare instance of an absurd result
under the Three Strikes law that goes beyond mere disagreement with the trial court’s
decision. We will therefore reverse and remand for reconsideration.
The trial evidence shows that defendant’s criminal behavior here resulted from a
late-night, spontaneous altercation between an intoxicated and mentally ill homeless
person and a group of youths. Defendant struck two members of a group of five young
26
men with a bamboo stick, scratching one and raising a welt on the neck of the other.
Witnesses did not provide a clear picture of the genesis of the encounter between
defendant and the young men. Defendant also was injured. Following the jury’s verdict
in a trial in which we have concluded the trial court committed a number of evidentiary
errors, the trial court elected to impose a sentence of 25 years to life consecutive to 15
years, de facto life imprisonment for defendant who was 53 years old when sentenced.
The record does not support the trial court’s conclusion that this nighttime
encounter between defendant and the young men outside two fast food restaurants was
similar to defendant’s prior strikes which, as described in the sentencing report prepared
by the Probation Department, were characterized by either substantial violence or the
deliberate entry into homes to steal. We recognize, as did the trial court, that defendant
has a number of significant prior convictions, but they are not similar to the events
underlying this case.
As the sentencing report recognized, defendant’s circumstances were critical here.
Citing defendant’s “history of homelessness, mental health issues, and alcoholism
[which] most likely contributed to his actions,” the Probation Department stated that the
trial court could exercise its discretion under Romero, “given the punishment under the
present Strike Law is disproportionate to the severity of the present offense.”
On these facts, while the jury was entitled to return a guilty verdict on the charged
offenses, we respectfully disagree with the trial court’s determination that a sentence
tantamount to life in prison was proportionate. Considering all the evidence and
circumstances in this particular record, we conclude that the trial court abused its
discretion by denying defendant any meaningful relief from the Three Strikes law. We
express no opinion about how many strikes should be stricken on remand. We conclude
27
only that—in declining to strike any—the trial court abused its discretion under the
principles set out in Romero.
3. Statutory Changes to Sentencing Enhancements
The trial court imposed three 5-year prior serious felony enhancements under
Penal Code section 667, subdivision (a) and two stayed 1-year prior prison term
enhancements under Penal Code section 667.5, subdivision (b). At the time of
sentencing, section 1385 prohibited a judge from striking a prior serious felony
enhancement (Pen. Code, § 1385, former subd. (b)), and prior prison term enhancements
applied to terms served for all felony convictions (Pen. Code, § 667.5, former subd. (b)),
although enhancements under Penal Code sections 667 and 667.5 could not be imposed
for the same prior offense. (People v. Jones (1993) 5 Cal.4th 1142, 1153.) The trial
court now has discretion to strike prior serious felony enhancements (Pen. Code, § 1385;
Stats. 2018, ch. 1013, § 2 (S.B. 1393), effective Jan. 1, 2019), and prior prison term
enhancements are now limited to prison terms served for sexually violent offenses (Pen.
Code, § 667.5, subd. (b); Stats. 2019, ch. 590, § 1 (S.B. 136) eff. Jan 1. 2020). The
amendments apply retroactively because they are ameliorative and defendant’s judgment
was not final before their effective dates. (In re Estrada (1965) 63 Cal.2d 740, 744–748
[new statute allowing lesser punishment applies retroactively to nonfinal judgments];
People v. Francis (1969) 71 Cal.2d 66, 75–78 [new statute authorizing sentencing
discretion retroactively applies to nonfinal judgments]; People v. Lopez (2019)
42 Cal.App.5th 341–342 [S.B. 136 applies retroactively to nonfinal judgments]; People v.
Garcia (2018) 28 Cal.App.5th 558, 971–972 [S.B. 1393 applies retroactively to non-final
judgments].)
Defendant argues we should remand the matter for resentencing in light of S.B.
1393. Citing People v. McDaniels (2018) 22 Cal.App.5th 420 and People v. Gutierrez
28
(1996) 48 Cal.App.4th 1894, respondent argues that the trial court’s denial of defendant’s
motion under Romero and Penal Code section 17, subdivision (b) clearly shows it would
not have dismissed the prior serious felony enhancements if given the opportunity to do
so. The court in Gutierrez held that resentencing was required in Three Strikes cases
pending appeal at the time the Supreme Court issued Romero (holding trial courts may
strike prior strike convictions in furtherance of justice (13 Cal.4th at p. 497)), “unless the
record shows that the sentencing court clearly indicated that it would not, in any event,
have exercised its discretion to strike the allegations.” (Gutierrez, at p. 1896.) The clear
indication standard was extended in People v. McDaniels to resentencing under newly
enacted Penal Code section 12022.53, subdivision (h), providing for the discretionary
dismissal of a gun enhancement. (McDaniels, at p. 425.)
We are not persuaded that the denial of defendant’s motion is a clear indicator of
how the trial court would exercise its new discretion to strike prior serious felony
enhancements. The trial court denied relief under Penal Code section 17, subdivision (b)
because of the seriousness of the offenses and defendant’s criminal history. The trial
court denied relief under Romero because in the court’s view defendant did not fall
outside the spirit of the Three Strikes law. The new inquiry is different: whether, in the
interest of justice, defendant’s sentence should be reduced by 5, 10, or 15 years. We will
instruct the trial court on remand to exercise its new discretion under sections 667,
subdivision (a) and 1385.3
3 We will further direct the trial court on remand to strike the prior prison term
enhancements, which no longer apply to defendant’s underlying convictions. The
transcript of the sentencing hearing reveals the trial court’s intent to strike (not stay) those
enhancements under People v. Jones, supra, 5 Cal.4th at p. 1153. While we have
authority to correct that clerical error on appeal (People v. Haskin (1992)
4 Cal.App.4th 1434, 1441), in light of our remand, the appropriate course is for the trial
court to conform its sentence to S.B. 136.
29
III. DISPOSITION
The judgment is reversed. The matter is remanded for the trial court to: (1) strike
the prior prison term enhancements, which no longer apply to defendant under Penal
Code section 667.5, subdivision (b) as amended; (2) exercise its discretion under Penal
Code section 1385 as to the prior serious felony enhancements; and (3) enter a new order
granting defendant’s Romero motion, in whole or in part, to arrive at what the trial court
determines is a just sentence that is proportionate to defendant’s offenses and appropriate
to defendant’s history and circumstances. The trial court shall enter an amended
judgment and transmit a new abstract of judgment to the Department of Corrections and
Rehabilitation.
30
____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Danner, J.
H043029 - The People v. Dryden
Trial Court: Santa Clara County Superior Court
Case No.: C1367902
Trial Judge: Hon. Michele McKay McCoy
Attorneys for Plaintiff/Respondent Xavier Becerra
The People: Attorney General of California
Gerald A. Engler
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Eric D. Share
Supervising Deputy Attorney General
Ashley Harlan
Deputy Attorney General
Attorneys for Defendant/Appellant Jim Hee Kim
James Dryden: Dwyer & Kim LLP