People v. Rollen CA4/1

Filed 9/17/15 P. v. Rollen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067473

Plaintiff and Respondent,

v. (Super. Ct. No. INF1201849)

VAN KEYSHONE ROLLEN, ORDER MODIFYING OPINION
AND DENYING PETITION FOR
Defendant and Appellant. REHEARING

[Change in Judgment]

THE COURT:

It is ordered that the opinion filed herein on September 4, 2015, is modified as

follows:

On page 2, the second sentence of the second paragraph is deleted and replaced

with the following text:

However, we modify his sentence to vacate one of Rollen's
section 667 enhancements, and remand the case for a determination
regarding Rollen's entitlement to presentence custody credits.
 On page 27, the last sentence in the second full paragraph is deleted and replaced

with the following text:

We therefore vacate one of these two five-year enhancements.
(See People v. Jones (2015) 236 Cal.App.4th 1411, 1417.)

On page 29, the two paragraphs under DISPOSITION are deleted and replaced

with the following text:

Rollen's sentence is modified to vacate one of the section 667
enhancement terms imposed with respect to his robbery convictions
in 2000. The case is remanded to the trial court for a determination
as to Rollen's entitlement to presentence custody credits. The trial
court shall amend the abstract of judgment (1) to reflect the vacating
of one of Rollen's section 667 enhancements, and (2) to reflect the
calculation of Rollen's presentence custody credits. The trial court
shall forward a copy of the amended abstract of judgment to the
Department of Correction and Rehabilitation.

In all other respects, the judgment is affirmed.

The petition for rehearing is denied.

This modification changes the judgment.

McDONALD, Acting P. J.

Copies to: All parties

2
Filed 9/4/15 P. v. Rollen CA4/1 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067473

Plaintiff and Respondent,

v. (Super. Ct. No. INF1201849)

VAN KEYSHONE ROLLEN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Richard A.

Erwood, Judge. Affirmed as modified, and remanded for further proceedings.

Buckley & Buckley and Christian C. Buckley, under appointment by the Court of

Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood, Felicity Senoski, and Junichi Semitsu, Deputy Attorneys General, for

Plaintiff and Respondent.
 I.

INTRODUCTION

On appeal, Van Keyshone Rollen raises five claims: (1) that the prosecutor

engaged in racial discrimination in the exercise of her peremptory challenges during jury

selection and that the trial court committed reversible error by denying Rollen's motions

pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler

(1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545

U.S. 162, contesting three of the prosecutor's peremptory challenges; (2) that the trial

court abused its discretion in denying the defense request to be permitted to impeach a

witness with evidence that the witness had appeared at the courthouse intoxicated on the

day he was summoned to testify; (3) that the court abused its discretion in denying

Rollen's motion to either reduce his single felony conviction to a misdemeanor, or to

strike his prior strike convictions; (4) that the court erred in imposing four, rather than

three, five-year enhancements pursuant to Penal Code1 section 667; and (5) that the court

erred in failing to calculate the number of presentence custody credits to which Rollen is

entitled.

We affirm Rollen's convictions. However, we modify his sentence to stay the

sentence on one of the section 667 enhancement terms and remand the case for a

determination regarding Rollen's entitlement to presentence custody credits.

1 All further statutory references are to the Penal Code unless otherwise specified.
2
 II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

In July 2012, Erin Overly was living in a residence in Desert Hot Springs. Rollen

and Overly were acquaintances. On July 25, 2012, Rollen came to Overly's residence

and Overly let him in. Rollen left that day, but returned the following day, and he and

Overly used methamphetamine together. In the early morning hours of July 27, Overly

noticed that Rollen was in the yard of the residence. Overly, who was with Matthew

Smith and Kenneth Collins at the time, told Rollen to leave. When Rollen refused,

Overly called the police.

Desert Hot Springs police responded to a call from Overly's address at about 5:00

a.m. on July 27. As officers approached the residence, they encountered Rollen in a

hammock in the front yard. When Rollen saw the police officers, he ran inside the

residence. The officers, with their guns drawn, ordered Rollen to come out of the

residence multiple times. The officers could hear a woman screaming from inside the

residence. Rollen eventually came out of the house. When officers took hold of Rollen's

arms, he became uncooperative. The officers forced Rollen to the ground and placed him

in handcuffs. Rollen was taken to jail, cited, and released.

After being released from custody, Rollen returned to Overly's residence. Rollen

knocked on the door, but no one answered. He went around to the back of the residence,

kicked in a door, and entered the residence. Overly, who was inside the residence with

3
Smith and Collins, told them to call the police and then left through the front door. Smith

also left the house. Collins called 911. Collins's call with a 911 dispatcher was

interrupted when Rollen punched Collins in the mouth. The punch shattered Collins's top

denture and knocked it out of his mouth.

After striking Collins, Rollen left the house and confronted Overly in front of the

house. Collins testified that he heard Rollen say something like, "You called the cops on

me, bitch." Rollen hit Overly, and she fell to the ground. Rollen then walked off.

Collins called 911 a second time, this time from a neighbor's telephone, because Rollen

had damaged Collins's telephone.

The police responded to Collins's calls at approximately 6:50 a.m. Officers saw

Rollen walking in the neighborhood and detained him. Rollen was uncooperative. He

clenched his fists, stiffened his legs, and refused to stand or walk, making it difficult for

the officers to arrest him. They had to carry Rollen 15 to 20 feet in order to place him in

the patrol car.

Overly, in the meantime, was on the ground in front of the residence. She had red

marks on her neck and was crying. Paramedics treated Overly at the scene, and police

officers contacted Smith and Collins, who did not appear to be under the influence of any

substances at that time.

At trial, Rollen testified that he went to the residence in order to use drugs with

Overly. According to Rollen, after he and Overly ingested methamphetamine over a

period of approximately two days, Overly asked him whether he could obtain more

4
drugs. He did so and returned to the residence. After they had used all of the drugs that

Rollen had obtained, Overly asked him to leave, but told him that he could rest on the

hammock outside. A short time later, while Rollen was lying in the hammock, police

arrived. He panicked and ran inside the house, but soon "gave up."

Upon being arrested, Rollen told police officers that if he was being detained for

trespassing, then everyone in the house should be detained, as well.

After being released by police, Rollen returned to the residence to retrieve his

backpack. Smith greeted him and told him that it was not a good time for him to be there

because Overly and Collins were arguing. According to Rollen, Smith told Rollen to

meet him at the back door. Smith then allowed Rollen to enter the residence through the

back door. When Overly saw Rollen, she told Collins to call the police.

Rollen denied hitting Collins or breaking his telephone, and also denied having

engaged in an altercation with Overly outside of the residence. According to Rollen,

when Overly saw him outside, she began to walk backward and tripped over a rock.

Rollen said that he grabbed her in order to break her fall.

With respect to Rollen's conduct toward the police officers, Rollen said that

officers saw him walking down the street and "tackled" him. He added that he was

frustrated with the officers because he had not done anything wrong.

The defense also put on evidence that the owner of the residence had a caretaker

with power of attorney, and that the caretaker had not rented the property to anyone for

5
the month of July 2012, when this incident occurred, suggesting that Overly had not been

living in the residence legally.

Smith was recalled and testified that he never told Rollen to meet him at the back

door of the residence. Smith also denied letting Rollen into the residence. Smith

reiterated that Rollen had kicked in the back door to gain entry.

B. Procedural background

On June 17, 2013, the Riverside County District Attorney filed a third amended

information charging Rollen with seven felony and misdemeanor counts, as follows: (1)

residential burglary while another person, not an accomplice, was present (§§ 459, 667.5,

subd. (c); count 1); assault with force likely to produce great bodily injury (§ 245, subd.

(a)(4); count 2); unlawful attempt to dissuade a witness from reporting a suspected crime

(§ 136.1, subd. (b)(1); count 3); misdemeanor battery (§ 242; count 4); misdemeanor

damage to a wireless device with intent to prevent its use to notify law enforcement of a

crime (§ 591.5; count 5); misdemeanor trespass (§ 602, subd. (m); count 6); and

misdemeanor resisting arrest (§ 148, subd. (a)(1); count 7). In addition, the district

attorney alleged that Rollen had suffered a prior conviction for robbery in 1996, two prior

convictions for robbery in 2000, and a prior conviction for uttering criminal threats in

2011 (§§ 667, subds. (a), (c), (e)(1), and 1170.12, subd. (c)(1).). It was also alleged that

Rollen was in violation of his probation in connection with his 2011 criminal threats

conviction.

6
 A jury convicted Rollen on counts 3, 4 and 7. The jury acquitted Rollen on counts

1, 2 and 5, and was unable to reach a verdict with respect to a lesser included offense as

to count 2.2 The court declared a mistrial as to this offense.

In a bifurcated proceeding, the trial court found true the prior conviction and

probation violation allegations against Rollen.

Prior to sentencing, Rollen filed a motion seeking to reduce count 3 to a

misdemeanor and/or to strike his prior strike convictions. The trial court denied the

motion and sentenced Rollen to state prison for an indeterminate term of 25 years to life,

plus a determinate term of 20 years, consisting of four five-year serious prior felony

enhancements.

Rollen filed a timely notice of appeal.

III.

DISCUSSION

A. The trial court did not err in denying Rollen's Batson/Wheeler motion

Rollen contends that the trial court failed to provide any analysis in its ruling

denying his Batson/Wheeler motion, which defense counsel made after the prosecutor

exercised peremptory challenges against three potential jurors with Hispanic surnames.

According to Rollen, the trial court erred in denying his Batson/Wheeler motion with

respect to two of the potential jurors. Rollen maintains that the prosecutor's reasons for

2 Earlier in the proceedings the trial court had granted the prosecutor's motion to
dismiss count 6.
7
excusing the potential jurors was pretextual, and that the real reason the prosecutor

excused them is because they were Hispanic.

1. Additional background

On the second of three days of voir dire, defense counsel objected to the

prosecutor's use of a peremptory challenge with respect to prospective juror Mr. L.

During a discussion in chambers, defense counsel stated, "I do think that there's a pattern

going on." Counsel proceeded to argue that the prosecutor had used her peremptory

challenges to "exclude three people with Hispanic surnames." Specifically, defense

counsel noted that the prosecutor had used additional peremptory challenges to remove a

"Ms. [V.]" and a "Mr. [T.]" from the jury on the first day of voir dire.

In response, the prosecutor explained:

"[T]he People made this request [to exclude Mr. L.] as a
[peremptory] exclusion based on the fact, when he was being
questioned by [the] defense specifically, he said multiple times that
he was having trouble with this, he was having trouble, the idea of
making a decision, speaking in public. At one point he said this was
too much, and then eventually he comes back and says, 'Yeah, I'm
okay.' But this was also after specifically he said, 'This is too much
pressure.' And the People felt that he would not be able to deliberate
strongly, voice his own opinions. And that was the purpose of the
[peremptory] exclusion."

The prosecutor asked to review her notes further with respect to the other

prospective jurors that the defense had mentioned, but also said, "Out of memory for Ms.

[V.], . . . Your Honor, it may be a Hispanic surname, but, quite honestly, I thought she

was Caucasian. The People excluded her because of her youth and lack of participation

8
in the conversation that I had during voir dire." The prosecutor went on to say, "[T]he

very last one I would have to pull my notes, honestly. I do remember he was very quiet

and not responding to counsels' questions. [¶] So those were my reasons for asking for

them to be excused."

The trial court concluded that the prosecutor had provided adequate justification

for exercising a challenge to prospective juror Mr. L. The court noted that "he was all

over the place as to whether or not he could be fair," and that "he was worried about

saying the wrong thing."

After the prosecutor had the opportunity to review her notes, she elaborated that

she had excused prospective jurors Ms. V. and Mr. T. based on their "lack of

participation in the voir dire process," and because of their "low level of education and

youth." The prosecutor again explained that she believed that Ms. V. had blond hair, and

it was the prosecutor's impression that Ms. V. was Caucasian. Defense counsel disputed

the prosecutor's reasons, and continued to argue that the prosecutor had excluded

prospective jurors Ms. V. and Mr. T. because of their Hispanic surnames.

The trial court concluded, "Well, with respect—I don't think you've carried the

burden of a prima facie showing, even though the prosecution has already given her

reasons for excluding those members of the jury panel. So I don't find any purposeful use

of a peremptory challenge on racial grounds. And I'm going to deny your

Wheeler/Batson motion at this time. That's without prejudice to bring it up again if you

9
feel that the prosecution is doing what you've alleged that she's doing." Defense counsel

did not raise the issue again.

2. Analysis

"Both the state and federal Constitutions prohibit the use of peremptory challenges

to remove prospective jurors based on group bias, such as race or ethnicity. (See [Batson,

supra, 476 U.S. at p. 97]; [Wheeler, supra, 22 Cal.3d at pp. 276-277].)" (People v. Davis

(2009) 46 Cal.4th 539, 582.) "Doing so violates both the equal protection clause of the

United States Constitution and the right to trial by a jury drawn from a representative

cross-section of the community under article I, section 16 of the California Constitution."

(People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)

A party who contends that his or her opponent is utilizing his peremptory

challenges in a discriminatory fashion may raise a motion pursuant to Batson and

Wheeler. In People v. Riccardi (2012) 54 Cal.4th 758 (Riccardi), the Supreme Court

outlined the well-established three-step process that governs a trial court's analysis of a

Batson/Wheeler motion:

"Procedures governing motions alleging the discriminatory use of
peremptory challenges are settled. 'First, the defendant must make
out a prima facie case "by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose."
[Citation.] Second, once the defendant has made out a prima facie
case, the "burden shifts to the State to explain adequately the racial
exclusion" by offering permissible race-neutral justifications for the
strikes. [Citations.] Third, "[i]f a race-neutral explanation is
tendered, the trial court must then decide . . . whether the opponent
10
 of the strike has proved purposeful racial discrimination." ' "
(Riccardi, supra, at p. 786.)

The Riccardi court explained the factors that a trial court may consider in

determining whether a prosecutor has acted with discriminatory intent in exercising a

peremptory challenge:

" '[T]he critical question in determining whether a [defendant] has
proved purposeful discrimination' at a third-stage inquiry 'is the
persuasiveness of the prosecutor's justification for his peremptory
strike. At this stage, "implausible or fantastic justifications may (and
probably will) be found to be pretexts for purposeful
discrimination." [Citation.] In that instance the issue comes down
to whether the trial court finds the prosecutor's race-neutral
explanations to be credible. Credibility can be measured by, among
other factors, the prosecutor's demeanor; by how reasonable, or how
improbable, the explanations are; and by whether the proffered
rationale has some basis in accepted trial strategy.' [Citation.] ' "In
the typical peremptory challenge inquiry, the decisive question will
be whether counsel's race-neutral explanation for a peremptory
challenge should be believed. There will seldom be much evidence
bearing on that issue, and the best evidence often will be the
demeanor of the attorney who exercises the challenge. As with the
state of mind of a juror, evaluation of the prosecutor's state of mind
based on demeanor and credibility lies 'peculiarly within a trial
judge's province.' " ' " (Riccardi, supra, 54 Cal.4th at p. 787.)

A reviewing court applies a deferential standard of review in analyzing a trial

court's finding of fact on the "ultimate question" of whether a prosecutor acted with

discriminatory intent in exercising a peremptory strike:

"[B]ecause the trial court is 'well positioned' to ascertain the
credibility of the prosecutor's explanations and a reviewing court
only has transcripts at its disposal, on appeal ' "the trial court's
decision on the ultimate question of discriminatory intent represents
a finding of fact of the sort accorded great deference on appeal" and

11
 will not be overturned unless clearly erroneous.' " (Riccardi, supra,
54 Cal.4th at p. 787.)

Recently, in People v. Scott (2015) 61 Cal.4th 363, 387 (Scott), the Supreme Court

"clarif[ied] [the] practice" for reviewing Batson/Wheeler motions. In Scott, the Supreme

Court concluded that "where (1) the trial court has determined that no prima facie case of

discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her

reasons for excusing the juror for the record, (3) the prosecutor provides

nondiscriminatory reasons, and (4) the trial court determines that the prosecutor's

nondiscriminatory reasons are genuine, an appellate court should begin its analysis of the

trial court's denial of the Batson/Wheeler motion with a review of the first-stage ruling."

(Scott, supra, 61 Cal.4th at p. 391.)

At oral argument, the People took the position that under Scott, this framework

should apply in the case before us, such that we should begin our analysis of the trial

court's denial of appellant's Batson/Wheeler motion with a review of the first-stage ruling.

We disagree. The Scott court identifies and distinguishes the situation in the present case

from the situation the Supreme Court was addressing in Scott, stating, "When a trial court

solicits an explanation of the strike without first declaring its views on the first stage, we

infer an 'implied prima facie finding' of discrimination and proceed directly to review of

the ultimate questions of purposeful discrimination." (Scott, supra, 61 Cal.4th at p. 387,

fn. 1, citing People v. Arias (1996) 13 Cal.4th 92, 135 ["The court cannot undo an

implied ruling once made by stating after explanations have been received that it never

12
intended to find a prima facie case"].) Here, although the trial court ultimately stated that

it believed defense counsel had not made a prima facie showing, the trial court did not

make this statement until after the prosecutor had offered explanations for the challenges.

Therefore, for purposes of Rollen's appeal, we "infer an 'implied prima facie finding' of

discrimination" and review the trial court's ultimate finding that the prosecutor did not act

with discriminatory intent in exercising peremptory challenges as to prospective jurors

Ms. V. and Mr. T. (Scott, supra, 61 Cal.4th at p. 387, fn. 1.)3

With respect to Ms. V., the prosecutor first explained that she had been under the

impression that this prospective juror was not Hispanic, but rather, Caucasian. If the

prosecutor did not think that Ms. V. was, in fact, Hispanic, then her reason for excusing

that potential juror could not have been based on purported racial bias, as the defense

suggested.

In addition, the prosecutor stated that she excused Ms. V. and Mr. T. because of

their "lack of participation in the voir dire process" and "low level of education and

youth." The "law recognizes that a peremptory challenge may be predicated on a broad

spectrum of evidence suggestive of juror partiality. The evidence may range from the

3 Rollen asserts only that the trial court provided no analysis of the prosecutor's
reasons for challenging prospective jurors Ms. V. and Mr. T., arguing that the deference
normally accorded to a trial court's determinations as to the prosecutor's credibility and
demeanor is unwarranted when the trial court fails to provide "explicit findings or . . . on-
the-record analysis of the prosecution's stated reasons for a strike." (People v. Williams
(2013) 56 Cal.4th 630, 717 (dis. opn. of Liu, J.).) Rollen does not appear to be
challenging the trial court's Batson/Wheeler ruling with respect to prospective juror
Mr. L.
13
obviously serious to the apparently trivial, from the virtually certain to the highly

speculative." (Wheeler, supra, 22 Cal.3d at p. 275.) In addition, " '[j]urors may be

excused based on "hunches" and even "arbitrary" exclusion is permissible, so long as the

reasons are not based on impermissible group bias.' " (People v. Gutierrez (2002) 28

Cal.4th 1083, 1122.) The proper focus of a Batson/Wheeler inquiry is on the subjective

genuineness of the race-neutral reasons given for the peremptory challenge, and not on

the objective reasonableness of proffered reasons. (Purkett v. Elem (1995) 514 U.S. 765,

769.) The trial court was in the best position to assess the prosecutor's credibility, and

there is nothing in this record that undermines the trial court's implicit determination that

the prosecutor provided subjectively genuine race-neutral reasons for excusing the

identified jurors.

Further, despite Rollen's suggestion that the trial court's ruling does not deserve

the typical deference accorded to a trial court's credibility determination on a

Batson/Wheeler motion because the court failed to make express findings or provide

analysis, "the trial court is not required to make specific or detailed comments for the

record to justify every instance in which a prosecutor's race-neutral reason for exercising

a peremptory challenge is being accepted by the court as genuine." (People v. Reynoso

(2003) 31 Cal.4th 903, 919; see also People v. Mai (2013) 57 Cal.4th 986, 1054 ["[W]e

have made clear that 'the trial court is not required to explain on the record its ruling on a

Batson/Wheeler motion. [Citation.]' "When the prosecutor's stated reasons are both

inherently plausible and supported by the record, the trial court need not question the

14
prosecutor or make detailed findings." ' "].) Thus, despite the trial court's lack of analysis

of the prosecutor's reasons, we still "presume the advocate uses peremptory challenges in

a constitutional manner, and [we] defer to the trial court's ability 'to distinguish bona fide

reasons for such peremptories from sham excuses belatedly contrived to avoid admitting

acts of group discrimination.' " (Lenix, supra, 44 Cal.4th at p. 626.)

In exercising her peremptory challenges to excuse prospective jurors Ms. V and

Mr. T., the prosecutor relied on observations of the demeanor of both potential jurors

during voir dire, combined with her view of these potential jurors' relative youth and lack

of education. The record does not contradict the prosecutor's stated permissible, race-

neutral reasons. The trial court therefore did not err in implicitly accepting the

prosecutor's race-neutral reasons for excusing Ms. V. and Mr. T., and denying Rollen's

Batson/Wheeler motion.

B. The trial court committed harmless error in denying the defense's request to be
permitted to impeach Collins with evidence that he had been at the courthouse
intoxicated on the day he was originally scheduled to testify

Rollen contends that the trial court prejudicially erred when it excluded evidence

that Collins had arrived at the courthouse intoxicated on the date he was originally

scheduled to testify.

1. Additional background

On the first day Collins came to court to testify against Rollen, the prosecutor

suspected that Collins was intoxicated. The prosecutor decided against having Collins

testify that day, and requested that Collins take a breath test, which ultimately confirmed

15
that Collins was very intoxicated. His test results showed that he had a blood alcohol

level of .114 to .122. The following day, outside the presence of the jury, the prosecutor

informed the trial court and defense counsel about what had happened the day before

with respect to Collins. The prosecutor noted that Collins was present and sober. The

prosecutor asked the court to limit defense questioning of Collins regarding his drinking

prior to coming to court the previous day.

Defense counsel argued that he should be permitted to question Collins about the

incident because Collins's conduct was relevant for purposes of impeachment. Defense

counsel argued that Collins's conduct demonstrated that he did not believe that the case

was very important. Although the record does not disclose exactly what the prosecutor

told the court and defense counsel about Collins's intoxication the previous day, defense

counsel argued to the trial court that Collins had "apparently . . . lied about how much

alcohol he had taken," in that "he said he had taken a 24-ounce beer. That should have

raised his blood alcohol level at the maximum to .04, .05 in the best case scenario. The

PAS test came out to .114 and .122. So that's 50 percent over the legal limit to drive."4

The trial court concluded, "I'm not going to allow you to question him about

coming to testify yesterday, because we didn't get to him. And so the fact that he was

under the influence yesterday to such an extent it would be illegal for him to drive, that

has no relevancy to his giving testimony today. [¶] You can ask him whether or not he's

4 It is not clear from the transcript exactly what Collins had said, or to whom Collins
had been speaking, with respect to the comment that defense counsel attributed to Collins
regarding having imbibed "a 24-ounce beer" the previous day.
16
intoxicated today and had any intoxicating substance, and the last time he's had it—when

was the last time he had an alcoholic drink prior to testifying. You can ask him those

questions. But the fact that somebody in the past has used alcohol prior to testifying has

no relevance unless it's going to affect the testimony today."

After defense counsel again argued that he believed Collins' answer to the question

whether he thought the proceedings were serious enough to be sober when summoned to

testify would be relevant, the trial court ruled that no such questioning would be

permitted. The court noted that defense counsel would be permitted to ask Collins a

number of other questions, however: "You can ask him if he had a drink or if he's a drug

user; the last time he's had drugs; whether or not he's had anything this morning that

would affect his ability [to testify]; has he had any alcohol this morning; has he had any

drugs this morning prior to testifying."

During Collins's direct examination, Collins acknowledged that at the time of the

incident, he was homeless, and admitted that he had used drugs "earlier in the evening" of

the incident involving Rollen. Later, the prosecutor asked Collins whether his use of

methamphetamine earlier that evening had "cloud[ed] [his] memory." He responded,

"No." The prosecutor then asked Collins whether he had consumed any alcohol that

morning (i.e., the morning of his testimony). After Collins replied, "No," the prosecutor

asked, "When's the last time you had any alcohol." Collins responded, "For the first time

in eight months, I drank a beer yesterday afternoon." The prosecutor proceeded to review

17
Collins's criminal history with him, and Collins acknowledged having suffered a number

of misdemeanor and felony convictions for petty theft, burglary, and forgery.

On cross-examination, defense counsel asked Collins more about his drug

habit/addiction, as well as whether his chronic use of drugs had "impaired [his] ability to

perceive certain events." Collins "agree[d] to that," generally, but disagreed that his drug

use had impaired his ability to know what he had seen and experienced on the night of

the incident in question.

Later, defense counsel asked Collins again whether he had had alcohol the day

before. Collins answered in the affirmative. Defense counsel then asked, "And you were

subpoenaed to be here in court yesterday; right?" The trial court sustained the

prosecutor's objection to that question. Defense counsel questioned Collins about

whether he had used alcohol or drugs on the morning of his testimony, and questioned

him further about his criminal convictions and the events during the incident in question.

2. Analysis

Only relevant evidence is admissible (Evid. Code, §§ 210, 350), "and all relevant

evidence is admissible unless excluded under the federal or California Constitution or by

statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)" (People v.

Heard (2003) 31 Cal.4th 946, 973.) "The test of relevance is whether the evidence tends

'logically, naturally, and by reasonable inference' to establish material facts such as

identity, intent, or motive." (People v. Garceau (1993) 6 Cal.4th 140, 177.) Further,

with respect to determining the credibility of a witness, the jury may consider any matter

18
that has a tendency in reason to prove or disprove the truthfulness of his testimony at the

hearing, including but not limited to: a witness's character for honesty or veracity or their

opposites; the existence or nonexistence of a bias, interest, or other motive; his attitude

toward the action in which he testifies or toward the giving of testimony; and his

admission of untruthfulness. (Evid. Code, § 780.) "We review for an abuse of discretion

the trial court's rulings on the admissibility of evidence." (People v. McCurdy (2014) 59

Cal.4th 1063, 1095.)

We agree in part with the trial court's assessment that "the fact that somebody in

the past has used alcohol prior to testifying has no relevance unless it's going to affect the

testimony today." However, this situation did not involve simply a person who admitted

to having used alcohol "in the past," but rather, a victim/witness who arrived at court

intoxicated on the day he was summoned to testify. Although the fact that Collins

became intoxicated on the day he was scheduled to testify did not necessarily provide

insight into "[h]is attitude toward the action . . . or toward the giving of testimony" (Evid.

Code, § 780), it might have. Further, the circumstances of Collins's drinking led to

questions regarding his truthfulness about that episode. Specifically, Collins testified

under oath on direct examination that he had had consumed only one (albeit large) beer

the day before. However, his blood alcohol was such that the veracity of his statements

about having had only one beer could have been fairly called into question. We are

therefore not convinced that all questions going to Collins's having become intoxicated

19
on the day that he was originally scheduled to testify were wholly irrelevant, particularly

for purposes of impeachment.

However, even if the trial court abused its discretion in prohibiting defense

counsel from questioning Collins about his drinking, particularly after Collins opened the

door to questions about the subject when he stated on direct examination, "For the first

time in eight months, I drank a beer yesterday afternoon," we are not persuaded that the

court's ruling prejudiced Rollen. The erroneous exclusion of evidence is reviewed under

the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (See, e.g., People

v. Marks (2003) 31 Cal.4th 197, 226–227.) Under this standard, if a trial court

erroneously excludes evidence, a defendant must show on appeal that it is reasonably

probable that he or she would have received a more favorable result if that evidence had

been admitted. (People v. Watson, supra, at p. 836.)

The jury was presented with other evidence that called into question Collins's

credibility, including far more significant evidence bearing on whether Collins was a

credible witness regarding the incident in question. Collins admitted that he used

methamphetamine regularly, and that he had consumed it on July 26. Collins also

admitted to his lengthy criminal history—a criminal history that included forgery. Given

the fact that the jury was well aware of Collins's history of drug use and criminal activity,

it is not reasonably probable that the jury would have reached a result more favorable to

Rollen if the trial court had not prevented defense counsel from questioning Collins about

his intoxication at the courthouse the day before he testified.

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C. The trial court did not abuse its discretion in denying Rollen's motions to reduce
his felony conviction to a misdemeanor and/or to strike his prior strike convictions

Rollen contends that the trial court abused its discretion in denying his motion to

either reduce his felony conviction for dissuading a witness or victim to a misdemeanor

for purposes of sentencing, or alternatively, that the court abused its discretion in failing

to strike his prior strike convictions in the interests of justice.

1. Additional background

Rollen filed a motion in which he requested that the trial court either reduce his

conviction for dissuading a witness or victim from a felony to a misdemeanor, or, in the

alternative, exercise its discretion and strike Rollen's prior strike convictions. The People

opposed both requests.

In addressing the portion of Rollen's motion in which he sought a reduction of the

felony to a misdemeanor, the trial court noted that Rollen had engaged in related conduct

in which he struck Collins with such force that Collins's top denture was knocked out of

his mouth. The trial court recounted Rollen's testimony, noting that Rollen appeared to

believe that he had done nothing wrong, and instead blamed others for his conduct. The

court also mentioned that Rollen could have been considered a Three Strikes offender in

2011 when he was convicted of uttering criminal threats, but that he had not been charged

under the Three Strikes law. The trial court believed that Rollen had "been given plenty

of breaks," but "doesn't want to play by the rules. He doesn't want anybody telling him

21
what to do. He has not shown one reason why I should exercise my discretion to reduce

[the wobbler felony offense] to a misdemeanor. And I'm going to decline to do that."

With respect to Rollen's prior strike convictions, before the trial court denied

Rollen's alternative request to have two of his strikes stricken, the court considered

Rollen's criminal history and the facts of his current offenses. Rollen had committed six

felony offenses, beginning in 1993. He had three prior robbery convictions, as well as

numerous misdemeanor convictions and parole violations. Rollen had not worked since

2006, and "had not done anything to help himself." Based on Rollen's criminal history,

his lack of effort to make any real change, and his testimony at trial, the court concluded

that Rollen fell squarely within the spirit of the Three Strikes law, and declined to strike

any of Rollen's prior strikes.

2. The trial court did not abuse its discretion in denying Rollen's request to
reduce his felony conviction to a misdemeanor

"[A] special class of crimes involving conduct that varies widely in its level of

seriousness" is "commonly referred to as 'wobbler[s].' " (People v. Park (2013) 56

Cal.4th 782, 789.) These offenses "are chargeable or, in the discretion of the court,

punishable as either a felony or a misdemeanor; that is, they are punishable either by a

term in state prison or by imprisonment in county jail and/or by a fine. (§ 17, subd. (b);

People v. Feyrer (2010) 48 Cal.4th 426, 430, 433, fn. 4.)" (Park, supra, at p. 789.)

"[S]ection 17[, subdivision] (b), read in conjunction with the relevant charging

statute, rests the decision whether to reduce a wobbler solely 'in the discretion of the

22
court.' By its terms, the statute sets a broad generic standard. [Citation.] The governing

canons are well established: 'This discretion . . . is neither arbitrary nor capricious, but is

an impartial discretion, guided and controlled by fixed legal principles, to be exercised in

conformity with the spirit of the law, and in a manner to subserve and not to impede or

defeat the ends of substantial justice.' " (People v. Superior Court (Alvarez) (1997) 14

Cal.4th 968, 977 (Alvarez).) " '[A]ll exercises of legal discretion must be grounded in

reasoned judgment and guided by legal principles and policies appropriate to the

particular matter at issue.' " (Ibid.)

"On appeal, two additional precepts [regarding a trial court's exercise of

discretion] operate: 'The burden is on the party attacking the sentence to clearly show that

the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a

showing, the trial court is presumed to have acted to achieve legitimate sentencing

objectives, and its discretionary determination to impose a particular sentence will not be

set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely

because reasonable people might disagree. "An appellate tribunal is neither authorized

nor warranted in substituting its judgment for the judgment of the trial judge." ' "

(Alvarez, supra, 14 Cal.4th at pp.977-978.)

"[T]hose factors that direct similar sentencing decisions are relevant [in the

exercise of discretion under section 17, subdivision (b)], including 'the nature and

circumstances of the offense, the defendant's appreciation of and attitude toward the

offense, or his traits of character as evidenced by his behavior and demeanor at the trial.'

23
[Citations.] When appropriate, judges should also consider the general objectives of

sentencing such as those set forth in California Rules of Court, rule [4.]410." (Alvarez,

supra, 14 Cal.4th at p. 978.) Ultimately, "any exercise of [discretion under section 17,

subdivision (b)] must be an intensely fact-bound inquiry taking all relevant factors,

including the defendant's criminal past and public safety, into due consideration." (Id. at

pp. 981-982.)

Applying these discretionary standards to Rollen's case, we conclude that he has

not satisfied his burden on appeal to demonstrate that the trial court's sentencing decision

not to reduce his wobbler to a misdemeanor for purposes of sentencing was irrational or

arbitrary. Rollen acted violently toward the victim during the incident,5 and showed no

insight into his role in the offenses for which he was convicted when he testified at trial,

instead blaming others for the incident. Further, Rollen has a lengthy and serious

criminal history. As the trial court noted, Rollen has been provided other opportunities to

modify his conduct and yet has continued to engage in criminal behavior.

We are not persuaded by Rollen's argument that the trial court "focused on the fact

that if it reduced the offense to a misdemeanor, appellant would have to be placed on

probation." Rollen appears to be suggesting that the trial court somehow erred because

5 Rollen contends that the trial court focused on the "wrong factual issues" with
respect to this offense because the basis for Rollen's conviction for dissuading a witness
or victim was "appellant's act of yelling at Collins to get off the phone," not Rollen's act
of hitting Collins, for which Rollen was convicted of misdemeanor battery. However,
when viewed together, the conduct underlying both offenses clearly may be classified as
"violent" in nature.
24
the court was unwilling to make a discretionary sentencing decision that would result in

Rollen not having to serve some time in prison. However, this type of exercise of

discretion is precisely what section 17, subdivision (b) contemplates. The trial court

believed that, given all of the circumstances of the offense and the other criminal conduct

in which Rollen engaged during the incident, as well as Rollen's lengthy criminal history

and the prior opportunities that he had been given but squandered, a sentence requiring

Rollen to serve time in prison was the most appropriate sentence, even if that prison term

would be quite lengthy. We conclude that the trial court acted well within its discretion in

declining to reduce Rollen's felony conviction for dissuading a witness or victim to a

misdemeanor.

3. The trial court did not abuse its discretion in denying Rollen's request to
strike his prior strikes

Rollen's alternative argument is that the trial court abused its discretion in not

striking his two prior strikes as requested in his Romero motion.6

The law governing a trial court's consideration of whether to dismiss a prior strike

conviction is well established: "[T]he court in question 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

6 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
25
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 (Williams).)

In People v. Leavel (2012) 203 Cal.App.4th 823, 837, this court summarized the

standard of review to be applied in reviewing a trial court's ruling on a motion to dismiss

a prior strike conviction:

"The court's ruling on a motion to strike is subject to a deferential
abuse of discretion standard of review. [Citation.] A 'trial court will
only abuse its discretion in failing to strike a prior felony conviction
allegation in limited circumstances. For example, an abuse of
discretion occurs where the trial court was not "aware of its
discretion" to dismiss [citation], or where the court considered
impermissible factors in declining to dismiss.' [Citation.] The
burden is on the party challenging the sentence to clearly show the
sentence was irrational or arbitrary. [Citation.] Further, a sentence
will not be reversed merely because reasonable people might
disagree. ' " 'An appellate tribunal is neither authorized nor
warranted in substituting its judgment for the judgment of the trial
judge.' " ' "

In view of his lengthy and serious criminal history, Rollen cannot be considered to

fall outside the spirit of the Three Strikes law, even if his most recent criminal conviction

was not the most serious of offenses. Consequently, the trial court clearly did not abuse

its discretion in denying Rollen's Romero motion.

D. Rollen's sentence must be modified to reflect only three five-year enhancements

Rollen contends that the trial court erred in imposing four consecutive five-year

terms, one for each of his serious prior felony convictions. According to Rollen, because

two of the serious prior convictions arose from the same case, it was error to impose two

26
separate enhancements with respect to those serious prior convictions under section 667,

subdivision (a). The People concede that Rollen is correct on this point.

Section 667 requires that a defendant receive "a five-year enhancement for each

such prior conviction on charges brought and tried separately." (§ 667, subd. (a)(1).)

"[T]he requirement in section 667 that the predicate charges must have been 'brought and

tried separately' demands that the underlying proceedings must have been formally

distinct, from filing to adjudication of guilt." (In re Harris (1989) 49 Cal.3d 131,136.)

As the People acknowledge, Rollen's two robbery convictions in 2000 arose from

a single case, in which Rollen pled guilty to two counts of robbery and was sentenced to a

term of six years in state prison. It was error for the trial court to impose two separate

five-year enhancements under section 667 for these robbery convictions. We therefore

stay one of the five-year enhancements (see Cal. Rules of Court, rule 4.447).

E. Rollen is entitled to have the trial court calculate his presentence custody credits

Rollen argues that he is entitled to presentence custody credits, which the trial

court failed to calculate. The People concede that the trial court erred in failing to

calculate the presentence custody credits to which Rollen is entitled.7 As the People

acknowledge, "[t]he sentencing court is responsible for calculating the number of days

the defendant has been in custody before sentencing and for reflecting the total credits

7 The abstract of judgment reflects a notation that states, "Department of
Corrections to determine credit for time served."
27
allowed on the abstract of judgment." (People v. Black (2009) 176 Cal.App.4th 145, 154;

see also § 2900.5, subd. (a).)

The parties disagree, however, as to the number of days of credit to which Rollen

is entitled. According to the People, Rollen is entitled to 466 presentence custody credits

for the time he spent in custody between his arrest and the date he was sentenced. Rollen

asserts that this number fails to reflect the number of conduct credit days to which he is

entitled.

Given the parties' dispute over the number of credits to which Rollen is entitled,

and because the trial court is better suited to determine whether "it appears by the record"

that Rollen has or has not "satisfactorily perform[ed] labor as assigned" (§ 4019, subd.

(b)), or "satisfactorily complied with the reasonable rules and regulations established by

the [local custodial authority]" (id., subd. (c)), and whether his good behavior while in

presentence custody entitles him to conduct credits, we conclude that the trial court

should address Rollen's entitlement to and calculation of custody/conduct credits in the

first instance.8

8 The Penal Code contemplates that the trial court be provided an opportunity to
correct any alleged errors in the calculation of presentence custody credits: "No appeal
shall be taken by the defendant from a judgment of conviction on the ground of an error
in the calculation of presentence custody credits, unless the defendant first presents the
claim in the trial court at the time of sentencing, or if the error is not discovered until
after sentencing, the defendant first makes a motion for correction of the record in the
trial court." (§ 1237.1.)
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 IV.

DISPOSITION

Rollen's sentence is modified to stay one of the section 667 enhancement terms.

The case is remanded to the trial court for a determination as to Rollen's entitlement to

presentence custody credits. The trial court shall amend the abstract of judgment (1) to

reflect the stay of one of Rollen's section 667 enhancements, and (2) to reflect the

calculation of Rollen's presentence custody credits. The trial court shall forward a copy

of the amended abstract of judgment to the Department of Corrections and

Rehabilitations.

In all other respects, the judgment is affirmed.

AARON, J.

WE CONCUR:

McDONALD, Acting P. J.

O'ROURKE, J.

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