Filed 12/5/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H045620
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS161881)
v.
RAMON HERNANDEZ BERNAL, JR.,
Defendant and Appellant.
A jury convicted defendant Ramon Bernal, Jr. of 10 offenses, including residential
burglary and assault with a deadly weapon. Because of his criminal record he was
sentenced under the three strikes law to 85 years to life in prison. Defendant contends his
constitutional rights were violated when his attorney conceded guilt on certain charges in
closing argument. He further contends there is insufficient evidence to support two of his
convictions, and that his trial counsel provided ineffective assistance. He also challenges
his sentence. We find no error but will remand for resentencing so the trial court can
exercise its discretion regarding prior conviction enhancements under Penal Code
section 667, subdivision (a) (mandatory at the time of sentencing but now discretionary).
I. BACKGROUND
Defendant committed home and auto burglaries in Monterey County throughout
2016. In March of that year he broke into a house and stole jewelry, computers, wallets,
a camera and other belongings, including children’s piggy banks. Security cameras
captured him on video ransacking the home.
In June, defendant broke into a car parked in a home driveway, which a neighbor
witnessed and reported to 911. When defendant was arrested later that day, he had in his
possession the items taken from the car, as well as other stolen property. Defendant was
released on bail.
In August, a local business owner reported stolen from his car two briefcases
containing computers, cash, and credit cards. Purchases were made with the credit cards,
including one of over $500 at a nearby grocery store. Security video from the store
showed defendant making that purchase.
In October, a man with his fiancée and newborn baby returned to their car in a
supermarket parking lot to find defendant inside, rifling through the center console. The
man grabbed defendant, told him to empty his pockets, then blocked his path when he
tried to leave. Defendant took out a folding knife, displayed it and asked, “Do you want
to do this?” Defendant then fled to his car and drove away. He was arrested a week later
and again released on bail. Days later, a woman returned to her car after shopping and
noticed several things missing that had been inside, including her work identification
badge and a personal check. The badge and check were found in defendant’s pocket
when he was arrested later that day on a warrant from the August incident. He was again
released on bail.
In December, defendant broke into two more cars: one in a shopping center
parking lot and another outside a gym. From the car outside the gym he stole a wedding
ring and other jewelry. Three days before Christmas, police obtained a warrant to search
defendant’s apartment for stolen property. When the warrant was executed, defendant
was there with his girlfriend and two children––a six-year-old and a one-month-old.
Along with jewelry, multiple driver’s licenses, and numerous other stolen items, police
found two methamphetamine pipes; one in a bathroom drawer showed signs of recent
use.
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The District Attorney charged defendant with residential burglary (Pen. Code,
§ 459); identity theft (Pen. Code, § 530.5, subd. (a)); assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)); three counts of auto burglary (Pen. Code, § 459);
tampering with a vehicle (Veh. Code, § 10852); two counts of receiving stolen property
(Pen. Code, § 496, subd. (a)); and child endangerment (Pen. Code, § 273a, subd. (b)).
The information also alleged two prior serious felonies (Pen. Code, §§ 667, subd. (a)(1),
1170.12, subd. (c)(2)), prior prison terms (Pen. Code, § 667.5, subd. (b)), and committing
new offenses while released on bail (Pen. Code, § 12022.1, subd. (b)). The case was tried
to a jury and defendant was convicted of all charges. In a bifurcated phase, the court
found true all special allegations.
Defendant moved at sentencing to strike the two prior strikes under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied the motion,
finding that “the defendant’s record is simply too significant, and the unrelenting
behavior that’s present in this case is also too significant for the Court to say that this is
outside the spirit of the Three Strikes Law.” Because of the two prior strike offenses,
defendant was sentenced to 85 years to life: 35 years to life for the residential burglary
with two prior serious felony enhancements; a fully consecutive 35 years to life for the
assault with a deadly weapon with two prior serious felony enhancements; plus an
aggregate 15-year determinate term for the remaining counts.
II. DISCUSSION
A. DEFENSE COUNSEL’S ARGUMENT DID NOT VIOLATE DEFENDANT’S RIGHTS
Defendant contends that his constitutional rights were violated when, during
closing argument, his attorney conceded guilt and called him a “bad guy.” Faced with
the incriminating evidence presented at trial––which included video of defendant
committing some of the crimes––counsel did not contest every charge when addressing
the jury in closing argument. Regarding the auto burglary charge stemming from
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defendant being caught inside a car in the supermarket parking lot, counsel said, “And
Mr. Bernal was there[,] obviously. […] Breaking into the car, which clearly, by the way,
he is, because he’s inside the car. […] So not to give away that store, but that sounds
like [on that count] you should come back with a guilty verdict[,] right?” Then––in
arguing defendant was nonetheless not guilty of assault with a deadly weapon for
displaying a knife during the same incident––counsel noted, “By the way, it’s not that
he’s rightfully in the car. […] No. He’s a bad guy at that point. He’s a criminal. He’s
breaking into somebody’s car. But at that point has he assaulted [the victim] is the
question[,] right?” In his concluding argument to the jury, counsel stopped short of an
outright concession but specifically asked for acquittal only on the assault with a deadly
weapon and child endangerment counts: “We’re asking you to return verdicts of not
guilty as to Count 3, that’s the 245; not guilty as to child endangering, and to all the other
counts, the other eight counts I’m going to trust that you will review the evidence very
carefully and render a just verdict.”
Citing McCoy v. Louisiana (2018) 138 S.Ct. 1500, __ U.S. ___ (McCoy),
defendant contends his trial attorney’s method of argument violated his Sixth
Amendment right to counsel. The Supreme Court decided in McCoy that an attorney
may not concede guilt on a charge––even if that is a reasonable strategy given
overwhelming prosecution evidence––when the defendant expresses that the objective of
the defense is to maintain his or her complete innocence. (McCoy, at pp. 1508–1509.)
McCoy does not assist defendant because the record here does not reflect a directive to
counsel that defendant’s objective at trial was to maintain innocence on all charges.
There is no indication that defendant instructed counsel not to concede guilt on the
relevant charges in closing argument, nor did he ask to replace appointed counsel because
of disagreement over trial strategy. Defendant cites People v. Eddy (2019)
33 Cal.App.5th 472, 481, which found a Sixth Amendment violation under McCoy for a
concession of guilt during closing argument. But there the defendant moved to replace
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his appointed counsel post-verdict, and testimony during a hearing on that motion
established that trial counsel was aware before closing argument that defendant disagreed
with the strategy of conceding guilt. The record in this case is more like Florida v. Nixon
(2004) 543 U.S. 175, 189, which found no constitutional violation with a silent record on
whether the defendant disagreed with his attorney’s concession of guilt, and with the first
complaint about the concession coming only after trial. We agree with the reasoning in
cases that have interpreted McCoy to require express disagreement with counsel for a
claimed constitutional violation to have merit in this context. (See, e.g., People v. Franks
(2019) 35 Cal.App.5th 883, 891; People v. Burns (2019) 38 Cal.App.5th 776, 784.)
Defendant also contends that counsel’s closing argument was functionally
equivalent to a guilty plea and therefore required his express consent and waiver of the
right to confront witnesses and the right to avoid self-incrimination. He relies on People
v. Farwell (2018) 5 Cal.5th 295, 299–300, which held that a factual stipulation
encompassing all elements of a charged crime is tantamount to a guilty plea. In such a
case the record must reflect the defendant voluntarily and intelligently waived the
implicated constitutional rights. But Farwell dealt with a stipulation in trial which
established the defendant drove a motor vehicle when his license was suspended and that
he knew it was suspended––all the elements of the charged driving on a suspended
license offense. Because the jury in that case was instructed to accept the stipulated facts,
the stipulation “conclusively established the stipulated facts as true and completely
relieved the prosecution of its burden of proof.” (Id. at p. 300.)
There was no factual stipulation here. And arguments of counsel do not have the
same effect. (See CALCRIM, No. 222 [“Nothing that the attorneys say is evidence.”].)
The jury found defendant guilty of the eight charges that were not contested in closing
argument because the prosecution presented convincing evidence (including both video
and eyewitness testimony) that defendant committed the crimes. Counsel did not
stipulate to those facts, and the prosecution was required to present the evidence at trial.
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In crafting a closing argument on behalf of his client, counsel played the hand he was
dealt. The trial court was not required to obtain a waiver of defendant’s constitutional
rights in the situation presented here. (People v. Lopez (2019) 31 Cal.App.5th 55, 64–
65.)
Absent a contrary directive or timely objection from the client, conceding guilt on
the charges for which there was overwhelming evidence would be a reasonable strategy
to garner credibility and cultivate a more favorable environment for the jury’s
consideration of defense arguments regarding the charges that were reasonably in dispute.
This was not a “fail[ure] to function in any meaningful sense as the Government’s
adversary.” (See United States v. Cronic (1984) 466 U.S. 648, 666.) To the contrary: it
was a considered effort to achieve the best result possible for the client under difficult
circumstances. That it was ultimately unsuccessful does not render it incompetent or
unconstitutional.
B. SUBSTANTIAL EVIDENCE SUPPORTS THE ASSAULT AND CHILD ENDANGERMENT
COUNTS
Defendant contends there is insufficient evidence that he committed assault with a
deadly weapon (Pen. Code, § 245, subd. (a)(1)) and child endangerment (Pen. Code,
§ 273a, subd. (a)). In assessing a claim of insufficient evidence, we determine whether
the record contains substantial evidence on which a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. (People v. Manibusan (2013) 58 Cal.4th 40,
87.) The evidence must be viewed in the light most favorable to the judgment, and we
presume the existence of every fact the jury could reasonably have deduced. (Ibid.) We
do not reweigh the evidence or evaluate the credibility of witnesses. (People v. Misa
(2006) 140 Cal.App.4th 837, 842.)
Defendant was convicted of assault with a deadly weapon on the theory that he
intentionally used a weapon in a way likely to result in force being applied on another
person. (See CALCRIM No. 875.) The prosecution argued defendant committed the
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crime by pulling out a knife when confronted by the owner of a car he was burglarizing.
Defendant asserts there is insufficient evidence of both the intent element and the likely
application of force element because he took out the knife only in response to the
victim’s demand that defendant empty his pockets, and the knife blade remained folded
in the handle. Defendant points out that the victim testified the blade was not exposed
and the victim’s fiancée did not remember seeing a knife at all. But other evidence in the
record supports the jury’s finding that defendant used the knife in a manner likely to
result in an application of force: A bystander testified she saw defendant holding the
knife, with the blade exposed, about a foot away from the victim. The victim recounted
that “the knife appeared when I wouldn’t move out of his way… . [¶] So at that point
when he brandished the knife I probably backed up about a foot or two.” And defendant
made a threat as he held up the knife, asking, “Do you want to do this?” From that
evidence a jury could reasonably conclude that the car owner would likely have been
touched with the knife had he not moved out of the way. (See People v. Vorbach (1984)
151 Cal.App.3d 425, 429 [display of a knife in a threatening manner is sufficient
evidence of assault with a deadly weapon].)
Defendant was convicted of misdemeanor child endangerment (Pen. Code, § 273a,
subd. (b)) based on the condition of the apartment he was living in with two young
children when he was arrested. To prove misdemeanor child endangerment under
Penal Code section 273a, subdivision (b), the prosecution was required to show
defendant willfully permitted a child in his custody to be placed in a situation where the
child’s health may be endangered. The statute “encompasses a wide variety of
situations and includes both direct and indirect conduct.” (People v. Burton (2006)
143 Cal.App.4th 447, 454.) Defendant argues that merely because his apartment was
dirty and cluttered is not an adequate basis for a child endangerment conviction, and he is
likely right about that. But two methamphetamine pipes were also found in the
apartment. The jury was entitled to infer from that evidence that methamphetamine had
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recently been used in the home, even though police did not find narcotics there. We are
satisfied that keeping and using methamphetamine in a home with a six-year-old and a
one-month-old meets the standard of placing children in a situation where their health
may be endangered. The evidence is sufficient to support the misdemeanor child
endangerment conviction.
C. DEFENSE COUNSEL WAS NOT CONSTITUTIONALLY INEFFECTIVE
Defendant contends he received ineffective assistance of counsel because his
attorney failed to object to evidence of drug possession and disparaged him during
closing argument. To prevail on a claim of ineffective assistance of counsel, defendant
must show that his attorney’s performance fell below prevailing professional norms and
that the deficient performance affected the outcome of the trial. (Strickland v.
Washington (1984) 466 U.S. 668, 691–692.) We view counsel’s performance
deferentially: there is a strong presumption that counsel performed within the wide range
of acceptable professional assistance, and defendant “must affirmatively show counsel’s
deficiency involved a crucial issue and cannot be explained on the basis of any
knowledgeable choice of tactics.” (People v. Montoya (2007) 149 Cal.App.4th 1139,
1147.)
Defendant complains that his attorney failed to object during trial to evidence of
drug possession that was irrelevant and prejudicial. He notes two occasions where drug
evidence came in without objection: a police officer who arrested defendant in June
testified that cocaine and methamphetamine were found in defendant’s car; and an officer
who arrested him in October testified that he found methamphetamine in defendant’s
pants pocket. “Whether to object to inadmissible evidence is a tactical decision; because
trial counsel’s tactical decisions are accorded substantial deference [citations], failure to
object seldom establishes counsel’s incompetence.” (People v. Hayes (1990)
52 Cal.3d 577, 621.) We decline to second guess the tactics here. Counsel might have
decided that evidence suggesting defendant was under the influence of drugs during his
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crime spree could ultimately be more beneficial than harmful by providing some
explanation for the conduct. Even were we to find no possible strategic reason for not
objecting to that drug evidence, we would also find the omissions unlikely to have
affected the outcome of the trial. Evidence of methamphetamine use was properly
admitted as relevant to the child endangerment charge, reducing the impact of evidence
of drug possession on other occasions. And the overall strength of the prosecution case
militates against a finding that the evidence of additional drug possession tipped the
scales in any meaningful way.
Defendant also complains that his attorney’s negative comments about him during
closing argument while essentially conceding guilt on some charges constituted
ineffective assistance of counsel. He takes issue with counsel telling the jury that when
defendant was inside a victim’s car, “He’s a bad guy at that point. He’s a criminal. He’s
breaking into somebody’s car. But at that point has he assaulted [the victim] is the
question[,] right?” Defendant cites authority holding that failure to give any closing
argument is ineffective assistance of counsel and posits that conceding guilt on a charge
while calling him a criminal was worse than making no argument at all. But as we have
discussed, counsel’s argument appears to have been a calculated strategy to concede the
near inevitable outcome on certain charges in order to gain credibility with the jury and
pursue acquittal on charges where the evidence was not as strong. Trial counsel was not
constitutionally ineffective.
D. NO SENTENCING ERROR OCCURRED
Defendant contends the trial court committed several sentencing errors: by
denying his motion to strike the prior strike allegations; by imposing a consecutive term
for assault with a deadly weapon in violation of the prohibition against multiple
punishments for the same conduct; and because his prison sentence of 85 years to life
constitutes cruel and unusual punishment.
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1. Denial of Romero Motion
Defendant twice asked the trial court to strike his prior strikes; once before trial
and again at sentencing. (See People v. Superior Court (Romero), supra,
13 Cal.4th 497.) Both times the court declined to do so. We review the denial of such a
motion for abuse of discretion. (People v. Williams (1998) 17 Cal.4th 148, 162.) That
deferential standard asks not whether the trial court’s decision was correct in the sense
that it is the same decision we would have made; rather, it asks whether the court’s
decision falls within the range of outcomes permitted by the controlling law. The
controlling law in this situation is Penal Code section 1385, subdivision (a), which allows
a trial court to strike or vacate a prior strike allegation or finding “in furtherance of
justice.” In making that determination, the court must consider whether the defendant
falls outside the spirit of the three strikes law based on the nature and circumstances of
the current and prior offenses, as well as the defendant’s background, character, and
prospects. (People v Williams, at p. 161.) But “the three strikes law not only establishes
a sentencing norm, it carefully circumscribes the trial court’s power to depart from this
norm. […] In doing so, the law creates a strong presumption that any sentence that
conforms to these sentencing norms is both rational and proper.” (People v. Carmony
(2004) 33 Cal.4th 367, 378.)
The trial court did not abuse its discretion in determining that defendant’s
circumstances fall within the spirit of the three strikes law. He had two prior strike
offenses, a 2010 conviction for residential burglary (Pen. Code, § 459); and a 2005
conviction for reckless evasion of police in a vehicle (Veh. Code, § 2800.2) committed
for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). He was
convicted in this case of two more: residential burglary and assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)). He has five other prior convictions resulting in state
prison sentences. He continued committing the current crimes with charges pending after
being arrested and released on bail multiple times. And though defendant points to
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mitigating evidence, such as his expression of remorse at sentencing and letters from
family members attesting to his character, the presence of mitigating evidence is not
enough to render the trial court’s decision an abuse of discretion. The trial court acted
within the applicable standards when it declined, based on defendant’s “unrelenting”
criminal behavior, to find that he falls outside the spirit of the three strikes law.
Defendant also argues that the trial court abused its discretion by failing to
consider the option of striking at least one, even if not both, of his prior strikes. But we
see no indication in the record that the trial court was unaware of its authority to strike a
single prior or failed to exercise discretion in that regard. Rather, the record reflects that
the trial court carefully considered the relevant circumstances and concluded it was not
appropriate to depart from the sentencing norms established by the three strikes law.
2. Consecutive Sentence for Assault with a Deadly Weapon
Defendant asserts that the trial court erred by not applying Penal Code section 654
to stay the prison term for his assault with a deadly weapon conviction. Section 654
prohibits multiple punishments when a defendant is convicted of several crimes based on
a single act. (People v. Corpening (2016) 2 Cal.5th 307, 311.) It also applies when an
indivisible course of conduct violates more than one statute. (People v. Phung (2018)
25 Cal.App.5th 741, 759.) But even where the facts suggest an indivisible course of
conduct, “[t]he initial inquiry in any section 654 application is to ascertain the
defendant’s objective and intent. If he entertained multiple criminal objectives which
were independent of and not merely incidental to each other, he may be punished for
independent violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.”
(People v. Beamon (1973) 8 Cal.3d 625, 639.) Whether a defendant had separate
objectives is a factual determination made by the trial court at the time of sentencing.
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(People v. Braz (1997) 57 Cal.App.4th 1, 10.) We must defer to the trial court’s finding
of separate objectives so long as substantial evidence supports it. (Ibid.)
Defendant contends his sentence on the assault with a deadly weapon count should
have been stayed because sentence was imposed on the auto burglary count, and the two
crimes had the same objective and arose from the same incident (breaking into a car in
the supermarket parking lot). The trial court found otherwise, indicating at sentencing
that the burglary “is related to the assault, but it is still separate. It’s the intended original
crime that day when the defendant entered the car in broad daylight. He tried to steal
items out of the car before he was stopped. […] This is what led to the assault.” That
finding of separate objectives is supported by substantial evidence. The evidence
indicates defendant initially intended to steal items from a car when no one was there;
then, after being caught by the owner, he formed a new objective: to threaten him with a
knife so that he could get away. That is in contrast to People v. Bauer (1969)
1 Cal.3d 368, 378, relied on by defendant, where section 654 applied to stay a sentence
for car theft when the defendant had committed a home invasion robbery then stole the
victim’s car from the garage to get away. The defendant in that case could not be
punished for both the initial violent crime and the ensuing car theft because the evidence
showed he “formed the intent to steal the car during the robbery if not before it.” (People
v Bauer, at p. 377.) But here substantial evidence supports the trial court’s determination
that defendant’s objective was solely to commit a theft offense, and that he formed the
intent to get away by violence only in response to being apprehended by the car owner.
3. Cruel and Unusual Punishment
Defendant also challenges his sentence on constitutional grounds. He argues that
a term of 85 years to life in prison––in essence a life sentence––is prohibited by the
Eighth Amendment to the United States Constitution and Article 1, Section 17 of the
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California Constitution. He argues his sentence is so disproportionate to the crimes
committed that it is unconstitutional.
The Eighth Amendment prohibits “a sentence that is grossly disproportionate to
the severity of the crime.” (Rummel v. Estelle (1980) 445 U.S. 263, 271.) But “[o]utside
the context of capital punishment, successful challenges to the proportionality of
particular sentences have been exceedingly rare.” (Id. at p. 272.) “The gross
disproportionality principle reserves a constitutional violation for only the extraordinary
case.” (Lockyer v. Andrade (2003) 538 U.S. 63, 77.) And while the “precise contours”
of that principle are unclear (id. at p. 73), it is clear that a state may constitutionally
punish a recidivist offender by imposing an extremely long prison sentence––even a life
term––and even when the offenses are nonviolent. (See Rummel v. Estelle, at p. 274 [life
sentence for fraudulent use of a credit card to obtain $80, forging a check for $28.36, and
obtaining $120.75 by false pretenses]; Ewing v. California (2003) 538 U.S. 11, 18
[25 years to life for stealing golf clubs]; Lockyer v. Andrade, at p. 77 [50 years to life for
stealing video tapes].) Based on that precedent, we conclude defendant’s sentence does
not violate the Eighth Amendment.
The California Constitution similarly prohibits cruel or unusual punishment.
(Cal. Const., art. 1, sec. 17.) A punishment is cruel or unusual only if it “is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.)
More specifically, imposition of a life term for even a nonviolent felony committed by a
defendant with a history of serious or violent felony convictions does not violate the
California Constitution. (People v. Mantanez (2002) 98 Cal.App.4th 354, 363–364.)
And defendant, with his history of serious or violent convictions, was convicted here of
another violent felony (assault with a deadly weapon). We acknowledge the severity of
defendant’s sentence. But it is not based solely on the 10 offenses in this case; it is also
based on a lengthy criminal record which brought him within the designedly harsh prison
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terms mandated by the three strikes law. The power to define punishment for crimes is a
legislative function, so we proceed with deference when there is a constitutional
challenge to the length of a prison term. (People v. Baker (2018) 20 Cal.App.5th 711,
729.) As we find no constitutional violation here, we will not interfere with the
punishment the Legislature has prescribed.
E. AMENDMENT TO PENAL CODE SECTION 1385 REQUIRES REMAND
When defendant was sentenced in 2018, the enhancements the trial court imposed
under Penal Code section 667, subdivision (a) for prior serious felony convictions were
mandatory. Later that year, the Legislature passed Senate Bill 1393 which, effective
January 1, 2019, amended Penal Code section 1385 to allow a trial court to strike
Penal Code section 667 enhancements in furtherance of justice. A statutory amendment
potentially reducing defendant’s punishment applies retroactively to this nonfinal
judgment of conviction. (People v. Garcia (2018) 28 Cal.App.5th 961, 972.) We will
therefore remand the matter to allow the trial court to exercise its newly conferred
discretion and decide whether to strike the Penal Code section 667, subdivision (a)
sentencing enhancements.
III. DISPOSITION
The judgment is reversed and the matter is remanded to allow the trial court to
exercise its discretion regarding the Penal Code section 667, subdivision (a) prior
conviction enhancements. If the trial court decides the enhancements should be imposed,
it shall reinstate defendant’s original sentence; if the court decides the enhancements
should be stricken or dismissed, it shall resentence defendant accordingly and transmit an
amended abstract of judgment to the Department of Corrections and Rehabilitation.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Mihara, Acting, P. J.
____________________________
Danner, J.
H045620 - The People v. Bernal
Trial Court: Monterey County Superior Court,
Case No.: SS161881
Trial Judge: Hon. Andrew G. Liu
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
ALISHA M. CARLILE
Deputy Attorney General
Attorneys for Defendant/Appellant: Frank J. McCabe
Ramon Hernandez Bernal, Jr.