People v. Brooks

Filed 8/20/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B300182

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. NA105213)

v.

DEMETRIC A. BROOKS,

Defendant and
Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Judith Levey Meyer, Judge. Affirmed.
Law Offices of Jenny Brandt and Jenny M. Brandt, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jason Tran and Shezad H. Thakor, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
 A jury found Demetric A. Brooks guilty of five of the six
counts alleged against him based on actions he took during and
after a domestic dispute. The trial court (Judge Mark C. Kim)
also found true that Brooks had suffered each of three prior
convictions under Penal Code section 667, subdivision (a)(1).1
The trial court struck one of Brooks’s prior strike convictions over
the People’s objection after granting a motion based on People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Based
on the jury verdict, its true findings on the prior convictions, and
the Romero motion, the trial court sentenced Brooks to 27 years
and 4 months in prison, which included two five-year terms
imposed for prior serious felony convictions under section 667,
subdivision (a)(1).
After Brooks was sentenced, the Legislature enacted and
the Governor signed Senate Bill No. 1393, which amended
sections 667 and 1385 to give a trial court discretion that it did
not have before January 1, 2019 to strike prior serious felony
conviction enhancements. (Stats. 2018, ch. 1013, §§ 1, 2.) We
concluded that “[t]he record . . . [did] not reveal a clear indication
of how the trial court would have exercised its discretion,” and
remanded the case to the trial court to determine “whether to
strike any enhancements imposed under section 667, subdivision
(a)(1).” (People v. Brooks (Mar. 21, 2019, B288769) p. 3 [nonpub.
opn.].)
On remand, the trial court (Judge Judith Levey Meyer)
declined to strike the two five-year prior serious felony

1Statutory references are to the Penal Code unless
otherwise noted.

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enhancements imposed under section 667, subdivision (a)(1). We
find no abuse of discretion and affirm the trial court’s order.
BACKGROUND
On October 24, 2016, Brooks intervened in a fight between
his girlfriend, April D., and her roommate in April D.’s
apartment, and eventually began arguing with April D. During
his argument with April D., Brooks threatened to burn her with
water that was boiling in the apartment’s kitchen, and then
threw the boiling water on April D. as she turned away from him.
April D. felt her clothes sticking to her skin, and when she lifted
her shirt to “see the damage,” she saw that her “skin was hanging
off.” April D. ran to the second-floor apartment’s balcony to call
for help, and Brooks tried to push her off the balcony. At some
point during the altercation, April D. was also hit in the head
with a table leg. Brooks left before police arrived.
The doctor that treated April D. in the emergency room
testified that she had suffered second degree burns over three to
four percent of her body. He told the jury that April D.’s burns
could cause permanent scarring.
After police detained Brooks, he repeatedly kicked at one of
the windows in a police vehicle and damaged the vehicle’s
window frame.
A jury found Brooks guilty of mayhem (§ 203), assault with
a deadly weapon (“boiling hot water,” § 245, subd. (a)(1)),
domestic violence (§ 273.5, subd. (a)), vandalism under $400 (§
594, subd. (a)), and resisting an executive officer (§ 69).2 The jury

2 Brooks was charged with an additional count of assault
with a deadly weapon for attacking April D. with a table leg. (§
245, subd. (a)(1).) The jury was unable to reach a unanimous
verdict on that count.

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also found true allegations connected to the assault with a deadly
weapon and domestic violence charges that Brooks had
personally inflicted great bodily injury on April D. (§ 12022.7,
subds. (a) & (e)).
The trial court found that Brooks had suffered prior serious
or violent felonies for second degree robbery (§ 211) in 2004 and
burglary (§ 459) in 1991 (§§ 667, subd. (d), 1170.12, subd. (b)).
The trial court also found the two prior convictions true for
purposes of the enhancement imposed under section 667,
subdivision (a)(1). At sentencing on February 28, 2018, the trial
court granted Brooks’s Romero motion over the People’s objection
and struck Brooks’s prior conviction for burglary based on the
fact that the conviction was 27 years old. The trial court
sentenced Brooks to a total of 27 years and four months, which
included 10 years (five years apiece) for the two prior serious
felonies the trial court found true for purposes of section 667,
subdivision (a)(1).
Senate Bill No. 1393 became effective on January 1, 2019
while Brooks’s appeal from his conviction was pending in this
court. We affirmed Brooks’s conviction, but remanded to the trial
court so it could determine in the first instance whether to strike
any enhancement imposed under section 667, subdivision (a)(1)
pursuant to the discretion bestowed on the trial judge by Senate
Bill No. 1393.
On remand, the trial court reviewed the original sentencing
transcript, the pre-plea report, and the briefs filed in Brooks’s
appeal “that talk about the facts and what had actually
happened.” After argument, the trial court declined to strike
either of the two five-year enhancements imposed under section
667, subdivision (a)(1). Among other statements, the trial court

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stated, “I think, to me, what is most telling is the break that was
already given to Mr. Brooks” when the trial court granted
Brooks’s Romero motion. The trial court continued, “[t]he court
already showed what I’ll call ‘mercy’ on the situation and struck
the strike so that there was no life sentence, as far as this case is
concerned, and that was already over the People’s objection.”
The trial court referenced Brooks’s arguments that his
attack of April D. was spontaneous, and that Brooks did not go to
April D.’s apartment intending to do anything violent. The trial
court rejected that argument, however, based on what she
referred to as “quite a criminal history,” including a first degree
residential burglary, a “211 robbery from 2003” and “drug cases.”
“At some point in time,” the trial court explained, “although the
courts have been working a little bit more towards rehabilitation
on a lot of things, on a crime of this nature, the goal of sentence
was [flat out] punishment, not rehabilitation.”
Judge Meyer noted that she did not “know if [she] would
have stricken the strike” under Romero as Judge Kim did. “And
since [Brooks] has already received quite a break and not
received an indeterminate life sentence, this court has no
intention to exercise its discretion and strike the two [five-year]
priors.”3 Concluding, the trial court stated, “As it is, he’s already
– may not serve them under certain propositions and how prison
is going to work, so I’m not going to tamper with it any further.
He faced a life sentence, and now he has [a determinate]
sentence, and the court is going to leave it at that.” The court
made clear that it had “read and [had] considered and [had]

3 The reporter’s transcript incorrectly refers to the two
priors as “two 10-year priors.”

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exercised discretion, and the court will not strike the priors and
[Brooks’s] sentence remains [intact].”
Brooks filed a timely notice of appeal.
DISCUSSION
Brooks challenges the trial court’s order on a variety of
grounds, none of which was presented to the trial court. Brooks
first contends that the trial court based its denial of his motion on
“a misunderstanding of sentencing law” and improper sentencing
criteria. Brooks also contends that he is “entitled to a
resentencing hearing before the original sentencing court.”
Acknowledging his attorney’s failure to raise these issues in the
trial court, Brooks argues that if he has forfeited review based on
these issues then his trial counsel was ineffective.
The People’s arguments regarding forfeiture are well-
taken. (See People v. Scott (1994) 9 Cal.4th 331, 356 [“complaints
about the manner in which the trial court exercises its sentencing
discretion and articulates its supporting reasons cannot be raised
for the first time on appeal”].) In order to determine whether
Brooks was prejudiced by his lawyer’s failure to raise any of these
issues in the trial court, however, we must determine whether “a
reasonable probability exists that . . . the result would have been
different.” (People v. Farnam (2002) 28 Cal.4th 107, 148.)
Consequently, we reach the merits of Brooks’s contentions.
A. Brooks was not entitled to have his motion heard by
the original sentencing judge.
Brooks was originally sentenced after his trial by Judge
Mark C. Kim. On remand, his motion to strike the two five-year
sentence enhancements Judge Kim imposed under section 667,
subdivision (a)(1) was heard by Judge Judith Levey Meyer. In
his opening brief, Brooks contends he is “entitled to a

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resentencing hearing before the original sentencing court.”
Brooks softens his position later in his briefing, arguing that “the
original sentencing judge should preside over a resentencing
hearing” if the original judge is available.4 (Italics added.) In his
briefs and at argument, Brooks made a number of public policy
arguments urging us to hold that defendants are entitled on
remand to have motions to strike enhancements imposed under
section 667, subdivision (a) heard by the same judge who
sentenced those defendants.
We reject Brooks’s argument. First, the hearing on
remand was not a resentencing. Remand for sentencing can take
different forms. “[T]hat a sentencing remand necessarily entails
a full resentencing [is] not correct.” (People v. Buckhalter (2001)
26 Cal.4th 20, 35.) A “reviewing court has the power, when a
trial court has made a mistake in sentencing,” for example, “to
remand with directions that do not inevitably require all of the
procedural steps involved in arraignment for judgment and
sentencing.” (People v. Rodriguez (1998) 17 Cal.4th 253, 258.)
We did not remand for resentencing. We remanded with
the instruction that “the trial court shall determine whether to
strike any enhancements imposed under section 667, subdivision
(a)(1)” and to follow other very limited and specific instructions if
it chose to strike either of those enhancements.
Second, we are aware of no authority creating an
entitlement to have the same judge that sentenced a defendant
hear a motion to strike enhancements if a case is remanded for

4Brooks has not established, and nothing in the record
indicates, that Judge Kim was available to hear the motion on
remand.

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that purpose.5 Moreover, each of the cases Brooks cites in
support of his argument stated only that the same trial judge
that presided over a death penalty trial should hear a motion
under section 190.4, subdivision (e) (an automatic application for
modification of the verdict imposing the death penalty) when the
case was remanded for that purpose, assuming the judge was still
available to hear the motion. (See, e.g., People v. Lewis (1990) 50
Cal.3d 262, 287 [“Preferably, the trial judge, Judge Elsworth
Beam, should rehear the application on the basis of the record
certified to this court. If, however, he is unavailable, the matter
may be heard before another judge of the same court”].) That is a
narrow set of circumstances. And even under those
circumstances, the Supreme Court did not create an entitlement
to the same trial judge on remand.
Brooks was not entitled to have Judge Kim hear the motion
to strike on remand. We acknowledge the public policy
considerations Brooks outlines. But we recognize that there are
also countervailing considerations. A trial judge’s reassignment
within a large county’s superior court, for example, may leave a
trial judge in a facility with no temporary detention capacity.
Judges may be technically available, then, to handle motions on

5 Brooks and the People agree that People v. Arbuckle
(1978) 22 Cal.3d 749 (Arbuckle) is inapposite. In Arbuckle, our
Supreme Court concluded that “whenever a judge accepts a plea
bargain and retains sentencing discretion under the agreement,
an implied term of the bargain is that sentence will be imposed
by that judge.” (Id. at pp. 756-757.) The Court continued,
“Because of the range of dispositions available to a sentencing
judge, the propensity in sentencing demonstrated by a particular
judge is an inherently significant factor in the defendant’s
decision to enter a guilty plea.” (Id. at p. 757.)

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remand, but not practically available. Remand here did not
involve the considerations present in Arbuckle, supra, 22 Cal.3d
749. And in light of the dearth of statutory or case authority
entitling defendant on remand for a motion to strike
enhancements imposed under section 667, subdivision (a) to the
same trial judge who conducted the original sentencing hearing,
we decline to create the rule Brooks has requested of us here.
Finally, based on our conclusions here, Brooks’s attorney’s failure
to raise the issue in the trial court did not deprive Brooks of
effective assistance of counsel.
B. The trial court did not abuse its discretion when it
denied Brooks’s motion to strike enhancements.
Brooks contends that the trial court abused its discretion
because it was mistaken when it stated on the record that “on a
crime of this nature, the goal of sentence was [flat out]
punishment, not rehabilitation.” Rehabilitation is a sentencing
objective in California, Brooks argues, and the trial court’s
statement indicates that it did not consider rehabilitation as a
relevant sentencing factor.
The People point out that the quote Brooks selected as his
basis to demonstrate error was taken out of context. The entire
sentence from the reporter’s transcript indicates that the trial
court understands rehabilitation is a sentencing objective in
California. After reciting several of Brooks’s previous crimes
from the record, the trial court stated, “At some point in time,
although the courts have been working a little bit more towards
rehabilitation on a lot of things, on a crime of this nature, the
goal of sentence was [flat out] punishment, not rehabilitation.”
The record demonstrates that the trial court followed
California Rules of Court, rule 4.410 when considering sentencing

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objectives. That rule lists “[p]unishing the defendant” and
“[e]ncouraging the defendant to lead a law-abiding life in the
future and deterring him or her from future offenses” as two of
the “[g]eneral objectives of sentencing,” and instructs trial courts
that “[b]ecause in some instances these objectives may suggest
inconsistent dispositions, the sentencing judge must consider
which objectives are of primary importance in the particular case.”
(Cal. Rules of Court, rule 4.410(a)(2), (a)(3), (b), italics added.)
The trial court here specifically recognized that rehabilitation is a
general objective of sentencing, but concluded for purposes of
Brooks’s motion that punishment was “of primary importance.”
(Cal. Rules of Court, rule 4.410(b).) The trial court did not abuse
its discretion when it selected a valid sentencing objective as
having more import than another valid sentencing objective that
might have suggested a different disposition.
Brooks also contends that the trial court abused its
discretion when it postulated on the record that new or proposed
ballot propositions might eventually reduce the amount of time
Brooks served on his sentence. Brooks argues that the trial
court’s statement—“As it is, he’s already – may not serve [the full
length of his sentence] under certain propositions and how prison
is going to work, so I’m not going to tamper with it any further”—
was effectively the trial court making a decision based on a result
it sought, and not on the law and facts before it.
We disagree with Brooks’s interpretation of the trial court’s
statement. As Brooks has highlighted for us, Judge Meyer was
not the sentencing judge, and so could not have “reason[ed]
backwards to justify a particular length sentence which [s]he
arbitrarily determine[d].” (People v. Swanson (1983) 140
Cal.App.3d 571, 574.)

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 At the hearing on his motion to strike his section 667,
subdivision (a)(1) enhancements, Brooks made the same
arguments he made at his sentencing hearing and in connection
with his Romero motion.6 The trial court explained that it had
reviewed the transcript from the sentencing hearing, that it was
familiar with the facts of the case, and that it had heard and
understood Brooks’s arguments. The trial court’s decision was
not a decision to reach a sentence amounting to a certain time in
prison, but rather was a decision to not shorten the amount of
time to which Brooks had already been sentenced for the attack
and his actions after the attack.
Beyond our disagreement with Brooks’s characterization of
the trial court’s action, however, we also disagree with the
implications of Brooks’s statements of the law. A trial court “may
keep in mind the length of a sentence it thinks appropriate for a
defendant and rule accordingly.” (People v. Kelly (1999) 72
Cal.App.4th 842, 847.) “A judge’s subjective determination of the
value of a case and the appropriate aggregate sentence, based on
the judge’s experiences with prior cases and the record in the
defendant’s case, cannot be ignored. A judge’s subjective belief
regarding the length of the sentence to be imposed is not
improper as long as it is channeled by the guided discretion

6 At his sentencing hearing, he argued that he “has been
crime free . . . the last seven years,” that “he didn’t wake up that
day to go harm anyone,” that this attack was a “one-time, spur-of-
the-moment, not-thinking act of anger,” and that “he didn’t wake
up that day to harm or kill anyone.” At the hearing on his motion
to strike the section 667, subdivision (a)(1) enhancements, Brooks
argued that he “did not wake up that day to go out and prey on
any victim,” and that “he had no premeditation, no maligned
heart, no deliberation to get up that morning and harm anybody.”

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outlined in the myriad of statutory sentencing criteria.” (People
v. Stevens (1988) 205 Cal.App.3d 1452, 1457.)
Brooks’s arguments here rely on snippets of the reporter’s
transcript in this action taken out of their context. The context of
the rest of what the trial court said at the hearing and what the
trial court stated it reviewed to prepare for the hearing leads us
to conclude that the trial court considered proper criteria,
understood sentencing law, and did not abuse its discretion when
it denied Brooks’s motion to strike enhancements imposed before
the trial court had discretion to strike enhancements under
section 667, subdivision (a)(1). And because we disagree with
Brooks’s assertions that the trial court abused its discretion, we
conclude he was not deprived of effective assistance of counsel
based on his attorney’s failure to raise any of these issues at the
hearing on his motion.
DISPOSITION
The trial court’s order is affirmed.
CERTIFIED FOR PUBLICATION

CHANEY, J.

We concur:

BENDIX, Acting P. J. SINANIAN, J.*

*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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