Filed 10/29/20 P. v. Paisano CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C085158
Plaintiff and Respondent, (Super. Ct. Nos.
STKCRFE20150007132,
v. SF132053A)
NORMA PAISANO,
Defendant and Appellant.
SUMMARY OF THE APPEAL
A jury found defendant Norma Paisano guilty of the murder of Kwasi Mahan; the
attempted murders of Ursula Herron, Apondo White, and Arthur Jones; and guilty of
possessing a firearm when she was a felon prohibited from carrying a firearm. The jury
also found true various firearm enhancements to those crimes. Additionally, based on
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evidence regarding the presence of drugs when the police arrested defendant for the
shooting, the jury found defendant guilty of possessing cocaine and methamphetamine
for sale. At a bifurcated hearing, the judge found true allegations that the defendant had
committed a prior serious felony (i.e., that defendant had a strike on her record), that
defendant had not been out of prison following time served on the prior serious felony for
a period of five years at the time she committed the offenses, and that defendant was out
on bail in another pending criminal matter at the time she committed the charged crimes.
The trial court sentenced defendant to 205 years and eight months to life.
On appeal, defendant raises a number of arguments. First, defendant argues her
entire conviction must be reversed because the trial court did not dismiss a juror when it
discovered during the trial that the juror was acquainted with one of the People’s
witnesses. Second, defendant makes three arguments challenging the sufficiency of the
evidence in support of her attempted murder convictions and an enhancement to one of
those convictions. Third, defendant argues the trial court abused its discretion when it
declined her request at the sentencing hearing to dismiss her strike prior. Fourth,
defendant argues we should remand this case for resentencing in order to allow the trial
court to exercise its discretion afforded the court as a result of amendments to the law
after judgment. Fifth, she argues the trial court erred in not staying a sentencing
enhancement it imposed pursuant to Penal Code section 12022.1 (unless otherwise stated
all statutory section references that follow are to the Penal Code), which adds time to a
sentence when a court finds a defendant committed a crime while out on bail for the
alleged commission of another crime. Sixth, and finally, she argues the trial court erred
in not awarding her presentence custody credits for time served.
We disagree with defendant on her first four categories of arguments, but agree
with her on the fifth and sixth. We will remand the matter to the trial court for
resentencing.
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FACTS AND PROCEDURAL HISTORY
The Shooting
On July 18, 2015, a church group that goes by the name “Hope Dealers” was
gathered at the corner of Hunter and Sonora in Stockton to distribute clothing, toiletries,
and other necessities to the homeless. Desmond Griffin, a Hope Dealer, was sitting in the
back of a truck icing an injured ankle. Deryl George, another Hope Dealer, was there
with his nephew. There were a lot of people around, including a group that included
Herron, and Jones. Jones was sitting on his bike and looking for his uncle.
A black Buick Lacrosse drove up the street, and a woman, later identified by
witnesses as the defendant, jumped out of the car holding a gun. Defendant began
shooting. Griffin testified that she pointed the gun at a group of people and that, after
defendant fired the second shot into the group, the group started to run. As the crowd
moved defendant moved, too. Griffin described her as “sidestepping . . . and shooting as
they were running.” She squatted in the intersection, extended her arms, and shot,
pointing at the people who were running. Griffin observed that she was “[d]etermined.
. . . It looked like she had an agenda. She had a focus.” He could not tell if the shooting
“was personal,” but he observed she was pointing and firing at the people who were
running, and “was shooting with the crowd because the crowd didn’t run in a straight
line. . . . She was very focused on what she was shooting at.” George thought that
defendant “knew what she was doing. She didn’t point . . . where . . . my crew was at.
. . . She was aiming down the street.” At trial, one officer testified that Herron told him
defendant had pointed the gun towards her and Mahan. Another officer indicated that
Herron told him later in the day of the shooting that defendant had been going after her
ex-boyfriend, and she and Mahan were in defendant’s way.
Mahan, injured, fell to the ground, bleeding and gasping for air. Defendant shot
Herron in her side as Herron ran to a vacant lot. Jones ran to an empty lot, and by the
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time he reached it defendant had shot him in the right arm. Griffin testified it appeared
another black man in the area was shot in the thigh.
The Buick pulled back up, and the driver told defendant to get in. Defendant fired
about two more shots, emptying her clip, and got in the Buick, which then drove away.
Griffin estimated that defendant fired between seven and 10 shots total from the time she
got out of the car to the time she got back in.
The Victims’ Injuries
After the shooting stopped, Jones got his bike, went to his truck, and drove himself
to St. Joseph’s Hospital. Jones’s arm had two bullet holes in it. Jones’s treatment
included two surgeries, wearing a brace for two to three weeks, and physical therapy.
The wound and surgeries left Jones with one scar the size of a quarter, one the size of a
nickel, and one from his wrist to his elbow. At the time of the trial, in March 2017,
Jones’s arm would still get a little sore sometimes.
Once defendant left, Herron returned to the place where she was when the
shooting began to look for her companions. They told her to lie down while they called
9-1-1. Herron was taken by ambulance to a local emergency room, having suffered a
wound to her right abdomen. Emergency room doctors took x-rays and saw that the
bullet had left Herron’s body.
Dr. Basson Ghobrial, who examined Herron, testified that upon admission, Herron
was classified as a “tier one,” which was the designation for the most severe injuries, but
her vital signs were stable and there were no critical organs in the area of her wound.
Herron was crying and reported her pain at a 10 out of 10. Dr. Ghobrial said the
wound “just went through superficial[,] what we call subcutaneous[,] tissue, all
superficial, no vital organs, so she did not require any surgical intervention. We usually
just provide care for the--for the wounds, we call that a wet/dry dressing. We clean it.
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We give her antibiotics as well as a tetanus shot, and then we dress the wound.” Herron
did not receive stitches.
The doctors wanted to admit Herron to the hospital, but she signed out against
medical advice and left. Herron has three scars as a result of her injury that are bigger
than an inch, but at the time of trial reported she no longer felt pain as a result of the
gunshot wound.
Mahan was taken to the emergency room by ambulance, and he died as a result of
his gunshot wounds.
Officer Luis Talamontes went to the location of the shooting shortly after it
happened. Talamontes testified he spoke to a man who appeared to be injured, whom he
identified from a photograph at trial as Apondo White. Talamontes described the victim
as “a black male, about five six, five seven. His pants were ripped and he was limping
around, and he had an injury to his inner right thigh. It appeared to be either--it appeared
to be a grazing wound or it looked similar to road rash but is really sharp. But he was
very uncooperative, didn’t want to speak to the police. He was upset.” Talamontes said
he noticed White because he “was limping. . . . I can’t remember what he was saying, but
he was being loud.”
Talamontes testified that he has seen many gun injuries during his career, and
White’s injury appeared consistent with a gunshot wound. The wound was bright red,
and though Talamontes could not see blood, the wound looked wet. White’s pants
looked torn and cut. The Stockton Police Department was unable to locate White for a
statement, and he did not testify.
Drug Possession
Defendant was located and taken into custody on July 27, 2015. When police
apprehended defendant, she had just exited a car she had been driving. When detectives
searched the car, they found nine baggies of crystals and one of a white powder in the
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center console. A senior criminologist for the Department of Justice tested the
substances, and found the crystals contained methamphetamine and the powder contained
cocaine. Officers also found a purse containing $119.36 in small bills in the car. At trial,
Detective Jimmy Fritts testified as a narcotics expert for the People. He testified that the
crystal baggies appeared to be set up for sale, and that the powdered substance looked set
up as one dose. Based on the facts presented regarding the drugs found and the
denominations of the bills in the purse, Fritts indicated he believed the substances were
possessed with the intent to sell and distribute them.
Legal Proceedings
The People filed an information against defendant that alleged nine counts.
Counts six and nine were later dismissed. The remaining counts were as follows: Count
one alleged defendant murdered Mahan (§ 187, subd. (a)). It also alleged defendant
committed count one willfully, deliberately, and with premeditation within the meaning
of section 189, and that the act was a serious felony within the meaning of section
1192.7, subdivision (c). Counts two, three, and four charged defendant with the
attempted murders of Herron, White, and Jones, respectively (§§ 664/187, subd. (a)).
Count five alleged defendant was a felon in possession of a firearm in violation of section
29800, subdivision (a)(1). Count seven alleged that defendant had possessed cocaine for
sale pursuant to Health and Safety Code section 11351. Count eight alleged that
defendant had possessed methamphetamine for sale pursuant to Health and Safety Code
section 11378. The jury found defendant guilty on all charges; determined that the
murder of Mahan was first degree murder; and concluded that defendant acted willfully,
with deliberation, and with premeditation in the attempted murders of Herron, Jones, and
White.
Counts one, two, and four included enhancement allegations that defendant
personally used a firearm causing death--or great bodily injury as defined by section
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12022.7—within the meaning of section 12022.53, subdivision (d). Count three included
an allegation that defendant intentionally discharged a firearm within the meaning of
section 12022.53, subdivision (c), personally used a firearm within the meaning of
section 12022.53, subdivision (b), and personally used a firearm within the meaning of
section 12022.5, subdivision (a)(1). Counts two, three, and four also included other
firearm enhancements that provide for shorter sentence enhancements than the ones
provided for by the enhancements mentioned above.
Counts two and four alleged as an enhancement that defendant inflicted great
bodily injury on Herron and Jones, respectively, within the meaning of section 12022.7,
subdivision (a), causing the crimes to be serious felonies as set forth in section 1192.7,
subdivision (c)(8). The jury found these enhancement allegations true, with the exception
of the section 12022.7 enhancement alleged under count two.
The information also alleged that, due to a prior conviction for first degree
burglary within the meaning of section 459, defendant was a repeat offender as
contemplated by section 667, subdivision (a)(1). It also alleged that the burglary
conviction was for a serious felony (a strike) within the meaning of section 1170.12,
subdivision (b), and section 667, subdivision (d)), as set forth in California’s “Three
Strikes and You’re Out” law (the Three Strikes Law).
The information also alleged that at the time of the shooting, defendant had
previously served a prison sentence as a result of the aforementioned burglary, and had
failed to remain free from prison custody for five years within the meaning of section
667.5, subdivision (b). Finally, the information alleged that at the time of the shooting,
defendant was released from custody on her own recognizance or on bail in another
matter for the crime of possession of a controlled substance within the meaning of section
4573.8 in violation of section 12022.1. At a bifurcated trial, the court found all of these
allegations to be true.
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At the sentencing hearing, the court refused to exercise its discretion to strike her
prior serious felony conviction, under section 1385 and People v. Superior Court
(Romero) (1996) 13 Cal.4th 497.
The trial court imposed a sentence of 205 years and eight months to life calculated
as follows: Because the court found true the allegation that defendant had a prior strike,
it doubled the base sentence imposed for each crime, resulting in a base sentence of 50
years to life for the murder, 14 years to life for each of the three attempted murders (for a
total of 42 years on the attempted murders), one year and four months for possession of a
firearm by a felon, six years for the possession of cocaine for sale, and one year and four
months for the possession of methamphetamine for sale, adding up to a base sentence of
100 years and eight months.
For the enhancements due to prior contacts with the criminal justice system, as to
count one the trial court added five years due to the repeat-offender finding within the
meaning of section 667, subdivision (a)(1), and two years due to the fact that at the time
of the shooting she had been released on bail in another pending action within the
meaning of section 12022.1.
With respect to the firearm enhancements alleged under counts one, two, three,
and four, the trial court added to defendant’s sentence the penalty imposed for the firearm
enhancement carrying the highest penalty, then stayed the penalty on the firearm
enhancements that contained lesser penalties. As such, the court imposed a 25-year
sentence each for the section 12022.53, subdivision (d) enhancements to counts one, two,
and four, and a 20-year enhancement for the section 12022.53, subdivision (c)
enhancement to count three. Finally, the trial court added three years to the sentence on
count three for the finding that defendant inflicted great bodily injury on Jones within the
meaning of section 12022.7, subdivision (a). With the exception of the punishments
stayed for the lesser included firearm enhancements, the trial court imposed all base
sentences and enhancements consecutively.
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DISCUSSION
I
The Trial Court Did Not Abuse Its Discretion When It Did Not Excuse Juror No. 8
Defendant argues the trial court abused its discretion when it did not discharge
Juror No. 8 after trial had started and the court discovered that (1) Juror No. 8 was
acquainted with Detective Jimmy Fritts, and (2) Juror No. 8 had not disclosed the
acquaintance during jury selection process. We disagree. Here, once it discovered the
acquaintance between Juror No. 8 and Detective Fritts, the trial court properly questioned
Juror No. 8 and received sufficient assurance that he was capable of listening to the
evidence and deciding the case impartially despite that acquaintance. Nothing in the
record suggests that Juror No. 8’s assurances were unworthy of belief, such that there was
good cause to remove him, or the failure to excuse him violated defendant’s right to an
impartial jury. On the record before us, we conclude that substantial evidence supports
the trial court’s exercise of discretion to retain Juror No. 8, as nothing suggests that Juror
No. 8 was actually biased or unable to perform his duties as a demonstrable reality.
A. Additional Facts
As part of the voir dire process, potential jurors reviewed a list of names of
potential witnesses. The potential witness list identified “Officer Jimmy Fritz - Narcotics
Expert” as potential witness number 24. This spelling of the witness’s name was
incorrect. The correct spelling of his last name is “Fritts.” None of the potential jurors
indicated they knew a Detective Fritz--or Fritts--during voir dire.
On March 16, 2017, before Detective Fritts testified, the People told the trial court
that “Detective Fritts approached me right now. Apparently he was out in the hallway.
One of our jurors . . . approached him saying, ‘[h]i Jimmy, how are you?’ ¶ Detective
Fritts is familiar with him, but doesn’t . . . know him or know his name; is that correct?”
Detective Fritts responded, “I don’t recall his name.” Detective Fritts elaborated, “I
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know he’s the grandfather of one of my daughter’s best friends. . . . I met him
occasionally the last eight, ten years. One time I went hunting with her father and him,
five, six years ago. I know his face. I believe his last name is Cooper. [My Daughter’s
friend’s] father’s name is Scott Cooper. . . . [I]t could be the mother’s father.” The trial
judge then noted that none of the jurors were named Cooper. When the trial court
pointed out no one indicated they knew Detective Fritts when they saw the potential
witness list, Detective Fritts stated, “I’m not sure he recalls my last name. When we met,
it was, hey, Jim.”
In light of Detective Fritts’s statements, defense counsel said he would like to
meet in chambers with Juror No. 8, and the court agreed. When the court asked Juror
No. 8 if he knew Detective Fritts, he responded “I do.” Juror No. 8’s description of his
connection with Detective Fritts differed from the one Detective Fritts provided. Juror
No. 8 indicated that “[h]is daughter is married to my nephew.” When asked about the
nature of his relationship with Detective Fritts, Juror No. 8 indicated, “I seen him maybe
once a year maybe, Thanksgiving, Christmas, family get-together.” The court asked
Juror No. 8 if he spoke with Detective Fritts about his work at all, and Juror No. 8
responded, “I barely know the guy.” When the court asked if Juror No. 8 felt anything
about his relationship with Detective Fritts made him feel he could not be fair to both
sides, Juror No. 8 responded “[n]o.” When the court asked Juror No. 8, “[i]f you were to
return a verdict of not guilty, would you be uncomfortable at all in talking with him about
your experience as a juror?” Juror No. 8 responded, “[n]o.”
The trial court then gave defense counsel the opportunity to ask Juror No. 8
questions. Defense counsel asked why Juror No. 8 had not previously informed the court
about his relationship with Detective Fritts. Juror No. 8 responded, “I didn’t recognize
the name. I didn’t see him until today and I recognized him. . . . I had no idea.” After
defense counsel asked Juror No. 8 a few questions, the trial court asked defense counsel
if there was “[a]nything else” he wanted to ask, and defense counsel said, “[n]o.”
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The court excused Juror No. 8 from chambers, then defense counsel requested
“that he be removed,” stating that he did not believe Juror No. 8 was “being truthful. If I
had known that his . . . nephew was married to Jimmy Fritts’[s] daughter, I would have
exercised a challenge.” When the People disagreed, defense counsel argued, “he
approached Jimmy Fritts in the hallway this morning and said, ‘Hi, Jimmy.’ And then he
comes in this morning, first question you ask him, ‘Do you know Officer Fritts?’ and he
goes, ‘Yes.’ ¶ So Jimmy Fritts’[s] name was on the witness list. How can he not
recognize Jimmy Fritts’[s] name on the witness list?” The People countered, “I don’t
believe he is lying or trying to mislead the Court. And certainly he said that he would not
take into consideration anything -- they don’t even discuss cases. Like he said, he barely
knows him.”
The trial court denied the request to dismiss Juror No. 8. It noted, “[w]ith regard
to the juror’s demeanor . . . , it appeared to me he was quite forthright. With that, there
was nothing in his demeanor to indicate to the Court that he was being anything but
truthful with the Court as to the nature of his relationship and any impact on his having a
somewhat passing acquaintance with Detective Fritts. So the Court is going to deny the
request that he be replaced.”
At defense counsel’s request, the trial court then called Juror No. 8 back into
chambers and asked that Juror No. 8 not share with other jurors that he was acquainted
with Detective Fritts. Juror No. 8 agreed to the court’s request.
The People later called Detective Fritts as an expert on narcotics, specifically
methamphetamine and cocaine. The defense raised “[n]o objection” to the People’s
request to qualify Detective Fritts as an expert. Based on evidence presented about the
packaging of the narcotics and small bills found in the car defendant was driving prior to
her arrest, Detective Fritts opined that the substances were “possessed for intent to sell
and distribute.”
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On cross examination, Detective Fritts admitted that it was possible someone
might possess the narcotics found in the car for personal use. The People relied on
Detective Fritts’s testimony in their closing argument to support the argument that
defendant possessed the drugs for sale. In its closing, the defense did not mention
Detective Fritts. Rather, it focused its argument regarding the possession charges on
testimony made by an arresting officer, and it sought to cast doubt on whether defendant
was the person who should have been charged with the possession crimes. The defense
argued the officer on scene was, “focused on Norma, the person in the front seat, [but]
there were other people in the car . . . . He couldn’t tell us who was getting out of where,
but two guys that were there getting in and out of this car, they are in a high crime drug
dealing area and he couldn’t tell us what these people were doing . . . because he’s
focusing on Norma Paisano. I would submit to you, ladies and gentlemen, that these two
guys that are in the car that are getting out and interacting with people outside the car are
the ones doing any drug dealings if any drug dealing is going on.”
B. Applicable Legal Standards
A criminal defendant has a constitutional right to trial by an impartial and
unbiased jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; In re Hitchings
(1993) 6 Cal.4th 97, 110.) Voir dire of potential jurors plays a critical role in
safeguarding this right. (Hitchings, at p. 110.) The voir dire process affords a defendant,
through his or her counsel or the court, the opportunity to examine prospective jurors to
ascertain “possible biases, both known and unknown, on the part of potential jurors.” (Id.
at pp. 110-111 [internal quotations omitted].) Demonstrated bias may result in the
dismissal of a juror for cause, and suspicions of bias that do not justify dismissal for
cause can still assist parties in determining when to exercise their peremptory challenges.
(Id. at p. 111.) Thus, when a potential juror conceals relevant facts or gives untrue
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answers during voir dire, he or she undermines the jury selection process. (People v.
Wilson (2008) 44 Cal.4th 758, 823.)
When a trial court is put on notice that good cause might exist to discharge a
sworn juror, the court must make whatever inquiry is reasonably necessary to determine
if the juror should be discharged. (People v. Young (2017) 17 Cal.App.5th 451, 463
(Young).) When the alleged good cause is that a juror concealed material information
during voir dire that may call into question the juror’s ability to remain impartial, courts
“consider the actual bias test of People v. Jackson (1985) 168 Cal.App.3d 700, 705 [214
Cal. Rptr. 346], adopted by [the California Supreme Court] in People v. McPeters (1992)
2 Cal.4th 1148, 1175 [9 Cal. Rptr. 2d 834, 832 P.2d 146].” (People v. San Nicolas
(2004) 34 Cal.4th 614, 644 (San Nicolas).)
As a threshold matter, this test requires a determination as to whether the
concealment was intentional. (See San Nicolas, supra, 34 Cal.4th at p. 644.) This is so
because, “ ‘[a]lthough intentional concealment of material information by a potential
juror may constitute implied bias justifying his or her disqualification or removal
[citations], mere inadvertent or unintentional failures to disclose are not accorded the
same effect.’ ” (Id. at p. 644 [quoting People v. McPeters, supra, 2 Cal.4th at p. 1175].)
If a court determines that the juror’s concealment was unintentional, “the proper test to be
applied . . . is whether the juror is sufficiently biased to constitute good cause for the
court to find under Penal Code sections 1089 . . . that he is unable to perform his duty.”
(Ibid., internal quotations and citations omitted].) Section 1089 provides that, “If at any
time, whether before or after the final submission of the case to the jury, a juror . . . upon
. . . good cause shown to the court is found to be unable to perform his or her duty, . . .
the court may order the juror to be discharged and draw the name of an alternate.”
The determination of whether a juror’s failure to disclose information during voir
dire was intentional or not is within the discretion of the trial court. (San Nicolas, supra,
34 Cal. 4th at p. 644.) “In evaluating claims of intentional concealment by jurors during
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voir dire, ‘[w]e accept the trial court’s credibility determinations and findings on
questions of historical fact if supported by substantial evidence.’ (People v. Nesler
(1997) 16 Cal.4th 561, 582 [66 Cal. Rptr. 2d 454, 941 P.2d 87]; see People v. Majors
(1998) 18 Cal.4th 385, 417 [75 Cal. Rptr. 2d 684, 956 P.2d 1137].)” (People v. Tuggles
(2009) 179 Cal.App.4th 339, 371-372.) “ ‘ “Before an appellate court will find error in
failing to excuse a seated juror, the juror’s inability to perform a juror’s functions must be
shown by the record to be a ‘demonstrable reality.’ ” ’ ” (People v. Martinez (2010)
47 Cal.4th 911, 943, quoting People v. Jablonski (2006) 37 Cal.4th 774, 807.)
“Although this court reviews for abuse of discretion a court’s ruling discharging a
juror pursuant to section 1089 [citation], [our Supreme Court has] made clear that such
review involves a ‘heightened standard [that] more fully reflects an appellate court’s
obligation to protect a defendant’s fundamental rights to due process and to a fair trial by
an unbiased jury.’ [Citations] Specifically, the juror’s ‘inability to perform’ his or her
duty ‘must appear in the record as a demonstrable reality.’ [Citations]
“Under the demonstrable reality standard, a reviewing court’s task is more ‘than
simply determining whether any substantial evidence in the record supports the trial
court’s decision.’ [Citation] ‘A substantial evidence inquiry examines the record in the
light most favorable to the judgment and upholds it if the record contains reasonable,
credible evidence of solid value upon which a reasonable trier of fact could have relied in
reaching the conclusion in question. Once such evidence is found, the substantial
evidence test is satisfied. . . . [¶] The demonstrable reality test entails a more
comprehensive and less deferential review. It requires a showing that the court as trier of
fact did rely on evidence that, in light of the entire record, supports its conclusion that
[good cause for removing the juror is] established. It is important to make clear that a
reviewing court does not reweigh the evidence under either test. Under the demonstrable
reality standard, however, the reviewing court must be confident that the trial court’s
conclusion is manifestly supported by evidence on which the court actually relied. [¶] In
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reaching that conclusion, the reviewing panel will consider not just the evidence itself,
but also the record of reasons the court provides.’ ” (People v. Armstrong (2016)
1 Cal.5th 432, 450-451, italics original and added.)
C. The Trial Court Did Not Abuse Its Discretion in Keeping Juror No. 8
The trial court acted within its discretion in declining to dismiss Juror No. 8.
First, the trial court conducted an inquiry that was “reasonably necessary” to
determine if the juror should be discharged. (See Young, supra, 17 Cal.App.5th at
p. 463.) When it was brought to the trial court’s attention that a juror had approached
Detective Fritts, the court heard from Detective Fritts regarding how he was acquainted
with the juror, and then it interviewed the juror. The court probed Juror No. 8 regarding
how much he knew about Detective Fritts’s job and his own ability to remain impartial in
light of the acquaintance. The court also let the defense question Juror No. 8 regarding
his relationship with Detective Fritts until defense counsel had no further questions. In
short, the trial court made a focused and fair inquiry regarding the issues it was necessary
to explore to ascertain the potential level of Juror No. 8’s bias.
Next, it was well within the trial court’s discretion, in light of the information
provided by Juror No. 8 and Detective Fritts, to determine that Juror No. 8’s
nondisclosure of his acquaintance with Detective Fritts was unintentional. (See San
Nicolas, supra, 34 Cal. 4th at p. 644.) Both Detective Fritts and Juror No. 8 described
their contact as infrequent, with Detective Fritts using the word “occasionally” and Juror
No. 8 referring to it as “maybe once a year.” Detective Fritts’s account and Juror No. 8’s
account of how they were connected to each other differed but were not per se
inconsistent. Detective Fritts did not know Juror No. 8’s name, and he incorrectly
guessed when he tried to guess Juror No. 8’s last name. Moreover, when the court asked
Juror No. 8 if he ever spoke with Detective Fritts about his work, he responded that he
barely even knows him. Finally, when asked why he did not tell the court about his
15
relationship with Detective Fritts earlier, the juror indicated he had not recognized the
name. Based on the above, the trial court acted within its discretion to determine that
Juror No. 8’s failure to disclose his acquaintance with Detective Fritts was unintentional.
It is completely plausible that prior to the trial Juror No. 8 was unaware of the nature of
Detective Fritts’s work or that Detective Fritts’s name did not register with the juror
when he saw a Detective “Fritz” listed as one of many potential witnesses.
Finally, the trial court acted within its discretion in determining that there was not
good cause to excuse Juror No. 8 once his acquaintance with Detective Fritts was
revealed. The trial court considered Juror No. 8’s demeanor when it questioned him, and
felt he was “quite forthright” and there was nothing to “indicate . . . that he was being
anything but truthful . . . as to the nature of his relationship and any impact on his having
a somewhat passing acquaintance with Detective Fritts.” There was no demonstration
that Juror No. 8 would be biased, and the trial court’s determination must be upheld.
(See People v. Holt (1997)15 Cal.4th 619, 659.)
Defendant tries to cast doubt on the trial court’s conclusion by suggesting that
Juror No, 8 was not, in fact, forthright and truthful about his relationship with Detective
Fritts. Defendant observes that Juror No. 8’s indication that he did not recognize
Detective Fritts’s name during voir dire is undermined by when he responded “yes” when
asked if he knew Detective Fritts. Defendant also argues that Juror No. 8 misstated the
frequency of his contacts with Detective Fritts as “maybe once a year” when he then
listed “Thanksgiving, Christmas, family get-togethers” as the times when they might
meet, which are events that together occur more than once a year. Moreover, defendant
argues, this list fails to include the one hunting trip the two went on together, and Juror
No. 8 failed to mention the relationship between his granddaughter and Detective Fritts’s
daughter when asked how the two knew each other.
This line of argument is misplaced. To begin with, all of these discrepancies
suggest, as much as anything, that the relationship Juror No. 8 has with Detective Fritts is
16
not particularly significant to Juror No. 8: (1) The Jimmy he knows did not come to mind
when he saw a Detective Fritz listed on the witness list, and, (2) how their two lives have
intersected is not at the forefront of Juror No. 8’s mind. He could have been able to
answer that, yes, he knows “Detective Fritts” because he had just seen him--a person he
had crossed paths with and knew as Jim or Jimmy--in the hall before the court brought
him in to question him. Finally, as transcribed, the exact meaning of Juror No. 8’s
testimony regarding how often he saw Detective Fritts does not lead to the inevitable
conclusion that the two saw each other more than once a year. It is possible that the
listed events were examples of the times Juror No. 8 might see Detective Fritts, and that,
on average, they crossed paths at one such event each year and that Juror No. 8 did not
mean, when he provided the list, that he always saw Detective Fritts at each of those
events.
The record does not support a finding that Juror No. 8 had an inability to perform
his duties as a juror as a demonstrable reality and the trial court did not err in allowing
him to remain on the jury.
II
There is Sufficient Evidence to Support All of the Jury’s Findings at Issue
Defendant raises three arguments that challenge the sufficiency of evidence in
support of her attempted murder convictions and a related enhancement. First, she argues
we must overturn all three attempted murder convictions because there is insufficient
evidence that she intended to kill Herron, White, and Jones, and that, instead, the only
reason they were shot was their proximity to the intended victim. Second, with respect to
White, she argues that there was insufficient evidence to establish that White suffered a
gunshot wound or that defendant shot a gun at him. Finally, she argues that there was
17
insufficient evidence to support the firearm enhancement that Herron suffered great
bodily injury as a result of her gunshot wounds. We disagree with all three arguments.
A. We Review Claims of a Lack of Sufficient Evidence Under the Substantial
Evidence Standard
This court’s role in reviewing a challenge to the sufficiency of evidence is limited.
(People v. Smith (2005) 37 Cal.4th 733, 738 (Smith).) “To assess the evidence’s
sufficiency, we review the whole record to determine whether any rational trier of fact
could have found the essential elements of the crime or special circumstances beyond a
reasonable doubt. [Citation.] The record must disclose substantial evidence to support
the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) In so doing, “we must
view the evidence in the light most favorable to the People and must presume in support
of the judgment the existence of every fact the trier could reasonably deduce from the
evidence. [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) This is so,
because “it is the exclusive province of the trial judge or jury to determine the credibility
of a witness and the truth or falsity of the facts on which that determination depends.”
(Ibid.) As such, “[c]onflicts and even testimony which is subject to justifiable suspicion
do not justify the reversal of a judgment.” (People v. Maury (2003) 30 Cal.4th 342, 403.)
And, “[a] reversal for insufficient evidence ‘is unwarranted unless it appears “that upon
no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s
verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331 [75 Cal. Rptr. 2d 412, 956 P.2d
374].)” (Zamudio, supra, 43 Cal.4th at p. 357.)
B. There is Sufficient Evidence that Defendant Had the Requisite Intent to Kill
Though a murder conviction does not require an intent to kill, an attempted murder
conviction requires both the specific intent to kill and the commission of a direct but
18
ineffectual act towards carrying out the intended killing. (Smith, supra, 37 Cal.4th at
p. 739.) Thus, in order for a defendant to be convicted of the attempted murder of a
victim, the prosecution must prove the defendant acted with the specific intent to kill the
victim. (Ibid.) Moreover, “[t]o be guilty of attempted murder, the defendant must intend
to kill the alleged victim, not someone else.” (People v. Bland (2002) 28 Cal.4th 313,
328.) Yet, “[o]ne who intentionally attempts to kill another does not often declare his
state of mind either before, at, or after the moment he shoots. Absent such direct
evidence, the intent obviously must be derived from all the circumstances of the attempt,
including the putative killer’s actions and words. Whether a defendant possessed the
requisite intent to kill is, of course, a question for the trier of fact. While reasonable
minds may differ on the resolution of that issue, our sole function is to determine if any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946; see also,
Smith, at p. 739.) “[T]he act of purposefully firing a lethal weapon at another human
being at close range, without legal excuse, generally gives rise to an inference that the
shooter acted with express malice.” (Smith, p. 742.) Moreover, “even if the shooting was
not premeditated, with the shooter merely perceiving the victim as ‘a momentary obstacle
or annoyance,’ the shooter’s purposeful ‘use of a lethal weapon with lethal force’ against
the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to
kill. (People v. Arias [(1996)] 13 Cal.4th [92,] 162.)” (Smith, at p. 742.)
Using these principles, the Court of Appeal and our Supreme Court have upheld
attempted murder convictions where the victims were sitting in the line of fire of a bullet
shot into a moving car, (Smith, supra, 37 Cal.4th at p. 744 [upholding attempted murder
convictions of a defendant who fired a single shot at a car in a line that came close to
hitting both a mother and her baby]; People v. Leon (2010) 181 Cal.App.4th 452, 465
[upholding an attempted murder conviction as to one passenger sitting in the line of fire
of a single shot that killed another passenger, but overturning the conviction as to the
19
passenger not in the line of fire]), and of two police officers “[w]here a defendant fires at
two officers, one of whom is crouched in front of the other, [endangering] the lives of
both officers . . . .” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 691.)
Here, the defendant fired her gun multiple times into a group of people, then
followed the group, continuing to shoot, as it fled from her. Even if she appeared to be
primarily focused on one specific person at some point during the shooting, that does not
change the fact that the entirety of her actions show she purposely fired a gun into (i.e.,
used lethal force against) a group of people multiple times, killing one and injuring three
others. At a minimum, the evidence could lead a reasonable person to conclude beyond a
reasonable doubt that defendant saw the attempted murder victims as momentary
obstacles or annoyances that she needed to get out of the way--killing them if need be--in
order to reach her preferred target. Moreover, the evidence suggests that she did not limit
the number of shots fired to what she believed would be necessary to kill one person, but
that she only stopped shooting when she ran out of bullets. It may be that a desire to kill
the three attempted murder victims did not prompt defendant to go to a busy intersection
and open fire that day, but the evidence strongly suggests the victims were at least “a
momentary obstacle or annoyance” that she was willing to take out with lethal force. As
such, sufficient evidence supports the attempted murder convictions.
C. Sufficient Evidence Supports That Defendant’s Actions Caused White’s
Injuries
A reasonable trier of fact could find beyond a reasonable doubt that defendant shot
at White and caused his injury. Griffin indicated that a black man had been shot in the
thigh. When investigating the shooting at the scene, Officer Talamontes, who has seen
many gunshot injuries throughout his career, saw a wound consistent with a gunshot
wound on White’s inner right thigh, and he identified White as a black man. White’s
wounds were consistent with those of a shooting victim described by Griffin, and no
20
other identified victim had injuries on their inner thigh. It was reasonable for the jury to
find White’s wounds were the result of defendant’s actions.
D. Sufficient Evidence Supports That Herron Suffered Great Bodily Injury
The jury found true the section 12022.53, subdivision (d), firearm enhancement to
defendant’s conviction for the attempted murder of Herron. According to section
12022.53, subdivision (d): “Notwithstanding any other provision of law, any person
who, in the commission of a [specified] felony . . . , personally and intentionally
discharges a firearm and proximately causes great bodily injury, as defined in Section
12022.7, . . . to any person other than an accomplice, shall be punished by an additional
and consecutive term of imprisonment in the state prison for 25 years to life.”
Defendant argues that there was insufficient evidence for the jury to find Herron
suffered great bodily injury.
Section 12022.7, subdivision (f) defines “great bodily injury” as “a significant or
substantial physical injury.” A “ ‘significant or substantial physical injury’ need not meet
any particular standard for severity or duration, but need only be ‘a substantial injury
beyond that inherent in the offense itself[.]’ ([People v. Escobar (1992) 3 Cal.4th 740
(Escobar),] 746–747 [disapproving People v. Caudillo (1978) 21 Cal.3d 562 [146 Cal.
Rptr. 859, 580 P.2d 274] on this point].)” (People v. Le (2006) 137 Cal.App.4th 54, 58-
59.) There is “no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or
‘protracted’ disfigurement, impairment, or loss of bodily function,” before a jury may
conclude an injury is a great bodily injury. (Escobar (1992) 3 Cal.4th 740, 750.)
Whether a victim’s injury amounts “to great bodily injury is not a question of law
for the court but a factual inquiry to be resolved by the jury. (Escobar, supra, 3 Cal.4th
at p. 750; People v. Wolcott (1983) 34 Cal.3d 92, 109 [192 Cal. Rptr. 748, 665 P.2d
520].) ‘ “A fine line can divide an injury from being significant or substantial from an
injury that does not quite meet the description.” ’ (Escobar, supra, 3 Cal.4th at p. 752,
21
quoting People v. Jaramillo (1979) 98 Cal.App.3d 830, 836 [159 Cal. Rptr. 771]; People
v. Clay (1984) 153 Cal.App.3d 433, 460 [200 Cal. Rptr. 269].) Where to draw that line is
for the jury to decide.” (People v. Cross (2008) 45 Cal.4th 58, 64) “If there is sufficient
evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it,
even though the circumstances might reasonably be reconciled with a contrary finding.”
(People v. Salas (1978) 77 Cal.App.3d 600, 606; see also Escobar, supra, 3 Cal.4th at
p. 750.)
The facts regarding the nature of the injury at issue in People v. Lopez (1986)
176 Cal.App.3d 460 are similar to the facts here. One victim was shot “in the right cheek
of the hip” and heard a ringing in his ear and fell to the ground screaming, but felt no pain
because he was dazed. (Id. at p. 462.) The other victim was shot in the left leg, with the
bullet penetrating and exiting the victim’s leg. (Ibid.) While she felt “fire” in her leg, she
was able to drag the other victim to safety after she was shot. (Ibid.) No bullets
remained in either victim’s body. (Id. at p. 465.) The First District Court of Appeal
upheld the trial court’s findings that the victims had suffered great bodily injury. (Ibid.)
Here, there was substantial evidence to support the jury’s finding that Herron
suffered great bodily injury as a result of the attempted murder.
It is true that the bullet that stuck Herron did not impact any of her vital organs or
remain in her body after the shooting, and her treatment did not require stitches, surgery,
or sutures. However, upon admission to the emergency room, staff classified her in the
highest injury category, and her pain level was severe enough that she was crying and
labeled it a 10 out of 10. Though Herron left the hospital after doctors treated her
wounds, hospital staff believed her injuries warranted admitting her to the hospital and
she signed out against medical advice. Finally, two years after the shooting, Herron still
had three scars as a result of her injury that were bigger than an inch. Taken together,
these facts, much like the facts in People v. Lopez, supra, 176 Cal.App.3d at page 465,
22
are sufficient to support the jury’s finding that Herron suffered a great physical injury as
a result of the shooting.
III
The Trial Court Did Not Abuse Its Discretion in Declining to Dismiss Defendant’s Prior
Felony Conviction, Resulting in the Imposition of a Second Strike
Defendant argues the trial court abused its discretion when it refused to strike her
prior serious felony within the meaning of section 1385.
A. Additional Background and Summary of Defendant’s Argument on Appeal
The defendant argued at the sentencing hearing that unless the trial court struck
her prior strike, her sentence would be tantamount to cruel and unusual punishment as
contemplated by the Eight Amendment of the United States Constitution and article one,
section 17 of the California Constitution. The defense also took the position that the prior
offense should be stricken because defendant falls outside the spirit of the Three Strikes
Law. The defense argued the punishment was unconstitutional and not within the spirit
of the Three Strikes Law given (1) defendant’s relatively young age at the time she
committed the prior offense and the shooting--17, respectively; (2) the conditions in
which she was raised; (3) the 194-year mandatory sentence in this case; and (4) the fact
that the burglary was not a violent felony.
The trial court disagreed with defendant’s characterization of the facts and denied
the request. In so doing, the trial court noted that “defendant has exhibited no remorse,
certainly.” The trial court also observed that “the nature and circumstances of the present
felonies . . . were highly vicious and violent in a callous disregard for the people on the
street in the area,” and “indicate a level of planning and sophistication that speak to
defendant being highly dangerous to society.” The trial court also noted that the prior
felony, “was a burglary in the first degree, to someone’s home, certainly well qualified as
a serious felony and dangerous in its own right as a result.” Finally, the trial court
23
considered “defendant’s prospects” and noted “defendant has had other contacts with the
criminal justice system. Being on her own recognizance release in a felony case pending
in this county when the murder and attempted murders occurred. She was a parolee at
large. She was in contact with that system after being released from state prison,
showing a complete lack of respect for and compliance with the rules of her release and
the rules of her parole.”
The trial court also disagreed with defendant’s characterization of her upbringing,
noting that her family life was not “a horrific crime producing setting,” and that her
continued involvement in the “family activity,” of drug trafficking at the time of her
arrest did “not speak highly of her prospects.” Having considered these and other factors,
the trial court concluded, “defendant does not fall outside the spirit of the Three Strikes
legislation.”
Having found that at the time she committed the crimes at issue in this action,
defendant had a prior conviction for a serious felony as defined in section 667,
subdivision (d), and section 1170.12, subdivision (b), pursuant to the requirements of
section 667, subdivision (e)(1) the trial court imposed “twice the term otherwise provided
as punishment” of the “determinate term or minimum term for an indeterminate term” as
punishment for each felony conviction in this case. (See also § 1170.12, subd. (c)(1).)
Here, defendant reiterates the two arguments she made at the trial court. First, she
argues that when the trial court declined the opportunity to exercise its section 1385
discretion to dismiss the prior strike, and therefore punished her applying the Three
Strikes Law, it denied her the opportunity for a youthful offender parole hearing,
functionally consigning her to a life in prison without the possibility of parole.
Defendant maintains that, in light of defendant’s relative youth when the prior burglary
and the instant crimes were committed, this punishment is cruel and unusual in violation
of U.S. and California Constitutions’ prohibitions on cruel and unusual punishment.
Second, defendant maintains the trial court abused its discretion because applying the
24
Three Strikes Law in this instance is outside of the spirit of the Three Strikes Law.
Neither argument is persuasive.
B. We Review Section 1385 Rulings for an Abuse of Discretion
Section 1385, subdivision (a), allows a judge to, “either of his or her own motion
or upon the application of the prosecuting attorney, and in furtherance of justice, order an
action to be dismissed.” Our Supreme Court has held that this “power to dismiss an
action includes the lesser power to strike factual allegations relevant to sentencing, such
as the allegation that a defendant has prior felony convictions.” (Romero, supra,
13 Cal.4th at p. 504.) This includes the power to dismiss prior felony conviction
allegations that arise under the Three Strikes Law contained in section 667, subdivisions
(b) through (i). (Ibid.) “[A] court’s failure to dismiss or strike a prior conviction
allegation is subject to review under the deferential abuse of discretion standard.”
(People v. Carmony (2004) 33 Cal.4th 367, 374.) When a court exercises its discretion
under section 1385, it must balance both the constitutional rights of the defendant and the
interests of society represented by the People. (Romero, at p. 530.)
C. Defendant’s Sentence is Not Cruel and Unusual
Some additional legal context helps clarify defendant’s argument that the trial
court’s failure to strike the prior serious felony effectively resulted in a cruel and unusual
punishment.
Under section 3051, when a person aged 25 or younger is convicted of a crime or
multiple crimes and sentenced to prison, if the longest punishment imposed for the crimes
for which the person is convicted is 25 years to life, that person becomes “eligible for
release on parole at a youth offender parole hearing during the person’s 25th year of
incarceration.” (See § 3051, subds. (a) & (b)(3).) However, section 3051 does not apply
to a defendant who a court sentences under section 667. (Id. at subd. (h).) Thus, because
the trial court denied defendant’s request to strike the prior serious felony and calculated
25
defendant’s base sentence using section 667, in addition to adding 50 years and four
months to her overall sentence, the trial court eliminated her eligibility for a youth
offender parole hearing during her 25th year of incarceration. As a result, and viewed in
conjunction with her 205-year and eight-month sentence, defendant is unlikely to ever get
out of prison.
The U.S. and California Constitutions’ bans on cruel and unusual punishment
prohibit sentences that are disproportionate to the crime committed. (Ewing v. California
(2003) 538 U.S. 11, 22; see In re Butler (2018) 4 Cal.5th 728, 744.) Cases in which
punishments are found to be cruel and unusual are rare. (See, e.g., People v. Weddle
(1991) 1 Cal.App.4th 1190, 1195 [“[W]e do not find this to be one of the rare cases
where the sentence was ‘grossly disproportionate’ to the crime”].) Here, the trial court
aptly noted that “the nature and circumstances of the present felonies . . . were highly
vicious and violent in a callous disregard for the people on the street in the area,” and
“indicate a level of planning and sophistication that speak to defendant being highly
dangerous to society.” Indeed, defendant went to a crowded intersection where a group
was distributing needed items for the homeless, fired her gun into a group of people until
she ran out of bullets, and killed one man and attempted to murder three others causing
them injury. Under these facts, the punishment is not disproportionate to the crimes.
Likely recognizing that the nature of her crimes, in and of themselves, do not
warrant a finding that the punishment here is disproportionate to the crime, defendant
cites various cases applicable to youthful offenders and suggests the protections afforded
to minors by those cases should be extended to her. But the cases defendant relies on are
inapposite.
In Miller v. Alabama (2012) 567 U.S. 460, 465, the U.S. Supreme Court
determined that “mandatory life without parole for those under the age of 18 at the time
of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual
punishments.’ ” Likewise, in Roper v. Simmons (2005) 543 U.S. 551, 578-579, the U.S.
26
Supreme Court was specifically concerned with punishments applied to persons under the
age of 18, when it found, “[t]he Eighth and Fourteenth Amendments forbid imposition of
the death penalty on offenders who were under the age of 18 when their crimes were
committed.” Though she may have been 17 at the time of the burglary--which was her
prior strike--defendant was 20 when she committed the crimes adjudicated and punished
in this case. The defendant in People v. Franklin (2016) 63 Cal.4th 261, 268 was 16
years old at the time he committed the crime at issue in that case, and our Supreme Court
specifically indicated that in light of its other findings, “we need not decide whether a life
sentence with parole eligibility after 50 years of incarceration is the functional equivalent
of an LWOP sentence and, if so, whether it is unconstitutional in Franklin’s case.”
Defendant cannot cloak herself in the protections applicable to legal minors referenced in
these decisions. The sentence here is not cruel and unusual.
D. Defendant Falls Within the Spirit of the Three Strikes Law
Defendant argues that the trial court abused its discretion when it denied her
request to dismiss her prior felony because “her case is outside the spirit of Three
Strikes.” Here we are guided by the California Supreme Court’s holding and reasoning
in People v. Carmony, supra, 33 Cal.4th at pages 377-378:
“Because ‘all discretionary authority is contextual’ [citation], we cannot determine
whether a trial court has acted irrationally or arbitrarily in refusing to strike a prior
conviction allegation without considering the legal principles and policies that should
have guided the court’s actions. We therefore begin by examining the three strikes law.
“ ‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms,
was intended to restrict courts’ discretion in sentencing repeat offenders.’ (Romero,
supra, 13 Cal.4th at p. 528 [53 Cal.Rptr.2d 789, 917 P.2d 628].) To achieve this end, ‘the
Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing
laws, but establishes a sentencing requirement to be applied in every case where the
27
defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that
an exception to the scheme should be made because, for articulable reasons which can
withstand scrutiny for abuse, this defendant should be treated as though he actually fell
outside the Three Strikes scheme.” ’ ([People v. ]Strong[ (2001)] 87 Cal.App.4th [328]
337–338, fn. omitted.)
“Consistent with the language of and the legislative intent behind the three strikes
law, we have established stringent standards that sentencing courts must follow in order
to find such an exception. ‘[I]n ruling whether to strike or vacate a prior serious and/or
violent felony conviction allegation or finding under the Three Strikes law, on its own
motion, “in furtherance of justice” pursuant to Penal Code section 1385(a), or in
reviewing such a ruling, the 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
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.)
“Thus, the three strikes law not only establishes a sentencing norm, it carefully
circumscribes the trial court’s power to depart from this norm and requires the court to
explicitly justify its decision to do so. In doing so, the law creates a strong presumption
that any sentence that conforms to these sentencing norms is both rational and proper.”
As a result, when we consider a trial court’s decision that the court will not
dismiss a prior serious felony using its discretion under section 1385, “ ‘[i]t is not enough
to show that reasonable people might disagree about whether to strike one or more’ prior
conviction allegations. [Citation.]” (Id. at p. 378.) “Where the record demonstrates that
the trial court balanced the relevant facts and reached an impartial decision in conformity
with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have
ruled differently in the first instance. (People v. Wade (1959) 53 Cal.2d 322, 338 [1 Cal.
28
Rptr. 683, 348 P.2d 116].)” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The
circumstances “where no reasonable people could disagree that the criminal falls outside
the spirit of the three strikes scheme” must be particularly “extraordinary.” (People v.
Carmony, supra, 33 Cal.4th at p. 378; see also Strong, supra, 87 Cal.App.4th at p. 332.)
“The well-recognized purpose of the three strikes law is to provide increased
punishment for current offenders who have previously committed violent or serious
crimes and have therefore not been rehabilitated or deterred from further criminal activity
as a result of their prior imprisonment. (People v. Davis (1997) 15 Cal. 4th 1096, 1099
[64 Cal. Rptr. 2d 879, 938 P.2d 938].)” (People v. Leng (1999) 71 Cal.App.4th 1, 14; see
also People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 357-358 [purpose of
the Three Strikes law is to ensure “ ‘longer prison sentences and greater punishment’ for
serious recidivists, i.e., those felony defendants who have previously been convicted of
serious and/or violent crimes”].)
The trial court did not abuse its discretion when it rejected defendant’s arguments
that she fell outside the spirit of the Three Strikes Law. On the contrary, it correctly
considered that defendant’s prior strike--a home burglary--had been “dangerous in its
own right.” It also correctly noted that “defendant has had other contacts with the
criminal justice system,” including having the status of a “parolee at large” at the time of
the shooting, and that at the time of sentencing she still “exhibited no remorse.” Here
“the record demonstrates that the trial court balanced the relevant facts and reached an
impartial decision in conformity with the spirit of the law.” (People v. Myers, supra,
69 Cal.App.4th at p. 310.) As such “we shall affirm the trial court’s ruling” to not strike
the prior serious felony. (Ibid.)
29
IV
There is No Need to Remand the Case for the Trial Court to Exercise Its Discretion
Under Post-Judgment Amendments to Sentencing Statutes
Defendant argues that this court must remand this case to allow the trial court to
use its discretion to strike or not strike the section 12022.53 firearm sentencing
enhancements imposed on the murder and attempted murder convictions, because the law
imposing those enhancements was amended after judgment was entered in this case to
allow trial courts to exercise such discretion, and the amended law applies retroactively to
the sentence imposed in this case. These sentence enhancements--three 25-year terms
under subdivision (d) and one 20-year term under subdivision (c)--account for 95 years of
defendant’s sentence. Similarly, in supplemental briefing, defendant argues that we
should remand this case so that the trial court can consider striking the five-year
enhancement imposed on her murder conviction due the court’s finding that she
committed a prior serious felony within the meaning of section 667, subdivision (a),
because section 667 was amended to give trial courts discretion to strike prior-serious-
felony findings after the judgment was entered in this case.
The People agree that the amended statutes apply retroactively in this case but
contend that remand in not necessary because the record clearly indicates that the trial
court would not exercise its discretion to strike the enhancements if given the
opportunity. We agree with the People.
Section III, A. contains a summary of the trial court’s relevant statements during
sentencing.
A. The Amended Statutes Apply Retroactively
Section 12022.53, subdivision (c), provides that “any person who, in the
commission of [attempted murder], personally and intentionally discharges a firearm,
shall be punished by an additional and consecutive term of imprisonment in the state
30
prison for 20 years.” Likewise, subdivision (d), adds a 25-year consecutive prison term
to the sentence of any person who during the commission of a murder or attempted
murder, “personally and intentionally discharges a firearm and proximately causes great
bodily injury, as defined in Section 12022.7, or death, to any person other than an
accomplice.” When the trial court entered judgment in this matter it had no discretion to
strike a section 12022.53 firearm enhancement. (See § 12022.53, subd. (h) (2010)
[“Notwithstanding Section 1385 or any other provision of law, the court shall not strike
an allegation under this section or a finding bringing a person within the provisions of
this section”].) After the trial court sentenced defendant, the Legislature amended section
12022.53, subdivision (h), to allow a trial court to, “in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an enhancement” that
section 12022.53 required. (§ 12022.53, subd. (h); see also Stats. 2017, ch. 682, § 2.)
The authority to strike or dismiss a finding that a person used a firearm in the commission
of an offense extends to “any resentencing that may occur pursuant to any other law.”
(Ibid.)
Similar amendments were made to section 667 after judgment was entered in this
matter, which, in subdivision (a)(1), adds a five-year sentencing enhancement to the
sentence for a serious felony when the defendant, “previously has been convicted of a
serious felony in this state.” “Prior to 2019, trial courts had no authority to strike a
serious felony prior that is used to impose a five-year enhancement under section 667,
subdivision (a)(1). Senate Bill 1393 removed this prohibition. (Stats. 2018, ch. 1013,
§§ 1, 2.) The legislation became effective January 1, 2019. (Cal. Const., art. IV, § 8,
subd. (c).)” (People v. Jones (2019) 32 Cal.App.5th 267, 272 (Jones).)
As articulated by our Supreme Court in In re Estrada (1965) 63 Cal.2d 740, 742,
when a statute is amended that mitigates a punishment after the prohibited act is
committed but before final judgment, the “punishment provided by the amendatory act
should be imposed.” In People v. Francis (1969) 71 Cal.2d 66, 76, our Supreme Court
31
applied Estrada to circumstances in which “the amendment does not revoke one penalty
and provide for a lesser one but rather vests in the trial court discretion to impose either
the same penalty as under the former law or a lesser penalty.” In Francis, our Supreme
Court also clarified that an amended penalty statute applies in instances in which the
amendment occurred after sentencing in the trial court but before the case was resolved
on appeal. (Id. at p. 77.)
Here, the amendment to subdivision (h) of section 12022.53 “necessarily reflects a
legislative determination that the previous bar on striking firearm enhancements was too
severe, and that trial courts should instead have the power to strike those enhancements in
the interest of justice.” (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.)
Additionally, “because there is nothing in the amendment to suggest any legislative intent
that the amendment would apply prospectively only, we must presume that the
Legislature intended the amendment to apply to every case to which it constitutionally
could apply, which includes this case.” (Ibid.) Likewise, when the Legislature “enacted
Senate Bill 1393,” amending section 667, subdivision (a)(1), “the Legislature did not
indicate it intended the legislation to apply prospectively only. (Estrada, [supra,
63 Cal.2d] at p. 742; [People v.] Garcia [(2018) 28 Cal.App.5th 961,] 972.) The act thus
applies retroactively to this case.” (Jones, supra, 32 Cal.App.5th at p. 272.)
B. We Need Not Remand, Because the Record Clearly Indicates the Trial Court
Would Not Have Stricken the Enhancements
A finding that amended sentencing provisions apply retroactively, “is not the end
of the matter. We are not required to remand to allow the court to exercise its discretion
if ‘the record shows that the trial court clearly indicated when it originally sentenced the
defendant that it would not in any event have stricken [the] . . . enhancement’ even if it
had the discretion. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [231 Cal. Rptr.
3d 443].)” (Jones, supra, 32 Cal.App.5th at pp. 272-273.) In taking into account the trial
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court record, “[t]he trial court need not have specifically stated at sentencing it would not
strike the enhancement if it had the discretion to do so. Rather, we review the trial
court’s statements and sentencing decisions to infer what its intent would have been.”
(Id. at p. 273.)
Here, the trial court’s statements when considering the request to strike the prior
serious felony make it clear it would not have stricken the firearm enhancements or the
section 667, subdivision (a)(1), enhancement had it been given the opportunity. The trial
court, (1) observed defendants lack of remorse; (2) referred to the crimes as “highly
vicious and violent in a callous disregard for the people on the street in the area”; (3)
stated that the “planning and sophistication” involved in the shooting suggested that
defendant is “highly dangerous to society”; and (4) noted the defendant--as a parolee at
large after her release from prison for the burglary--had shown “a complete lack of
respect for and compliance with the rules of her release and the rules of her parole.”
Based on this record, remanding this matter to allow the trial court to exercise its
discretion under the amended versions of sections 12022.53 and 667 would be a waste of
judicial and other resources.
V
The Two-Year Sentence Imposed for the Section 12022.1 Enhancement Must Be Stayed
Defendant argues that the two-year on-bail sentencing enhancement imposed on
the murder conviction must be stayed pursuant to section 12022.1, subdivision (d),
because the trial court did not make a finding that she was convicted for the alleged
offense for which she was released on-bail at the time of the offenses that gave rise to this
case. Respondent agrees. We also agree.
Section 12022.1, subdivision (b) provides that, “[a]ny person arrested for a
secondary offense that was alleged to have been committed while that person was
released from custody on a primary offense shall be subject to a penalty enhancement of
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an additional two years, which shall be served consecutive to any other term imposed by
the court.” A “primary offense” is a felony offense “for which a person has been released
from custody on bail or on his or her own recognizance prior to the judgment becoming
final.” (§ 12022.1, subd. (a)(1).) A “secondary offense” is a felony offense the person is
“alleged to have been committed while . . . released from custody for a primary offense.”
(Id. at subd. (a)(2).) When a person is convicted of a secondary offense before the
primary offense, “the imposition of the enhancement shall be stayed pending imposition
of the sentence for the primary offense. . . . If the person is acquitted of the primary
offense the stay shall be permanent.” (Id. at subd. (d).)
At sentencing when the trial court made its findings regarding defendant’s prior
felony convictions and alleged on-bail enhancements, the People sought judicial notice of
the fact that in January 2015, defendant had been arraigned on felony charges in San
Joaquin County Superior Court Case No. MF038913 and released on her own
recognizance. She then failed to appear for a February court date, at which time the
judge in that case revoked the own recognizance order and issued a bench warrant for
$30,000. The warrant remained outstanding until defendant’s arrest in this case. The
trial court in this case found true beyond a reasonable doubt that defendant had been
released on her promise to appear in “case MF38913 . . . and maintained that status on the
date and up until July 27th, 2015, and including the date of [the shooting].”
At the sentencing hearing, after imposing sentences in this case, the trial court
dismissed MF038913, but made no mention of permanently staying the two-year on-bail
enhancement it had imposed while using the crimes alleged in that action as the primary
offense. Likewise, the abstract of judgment does not indicate that the two-year on-bail
enhancement was stayed as a result of lack of a conviction on the primary offense.
Because on this record it does not appear defendant was ever convicted of the primary
offense upon which the on-bail enhancement was based, the two-year sentence imposed
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for that enhancement should have been stayed pursuant to section 12022.1, subdivision
(d).
VI
The Trial Court Erred in Not Awarding Presentence Custody Credits
Defendant argues that the trial court erred in failing to award her presentence
custody credits for time served between the date of her arrest and the date the trial court
sentenced her. In its brief, the People argue that the trial court did not err when it failed
to award any presentence custody credits, because defendant was not entitled to conduct
credit as a result of her first-degree murder conviction. In her reply, defendant argues
that the People’s argument is misplaced--and the trial court erred--in failing to distinguish
between conduct credits, which cannot be awarded to persons convicted of first-degree
murder and custody credits, which can be awarded. We agree with defendant.
A. Custody Credit Facts
Police took defendant into custody on July 27, 2015. The trial court sentenced her
on July 7, 2017. At the sentencing hearing, the clerk inquired about awarding the
defendant credit for time served between her arrest and conviction. The People stated,
“[p]ursuant to Penal Code section 2933.2[, subdivisions ](a) and (c), the defendant is not
entitled to any prison conduct credits, nor is she eligible to receive any conduct credit for
local custody time due to being convicted of the first-degree murder in Count 1.”
Defense counsel offered no comment, and the trial court decreed, “[n]o credits for time
served.” Likewise, the abstract of judgment reflects no credits for time served.
B. Defendant is Entitled to Presentence Custody Credits
When a person convicted of a crime has spent time in custody between the date of
her arrest and the date the court sentences her, the court can award various credits based
on time served presentence and the defendant’s behavior and actions while in custody
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pending conviction. Section 2900.5 provides that, “[i]n all felony . . . convictions, . . .
when the defendant has been in custody, . . . all days of custody of the defendant . . . shall
be credited upon his or her term of imprisonment.” Other provisions of the Penal Code
allow the court to award presentence custody credits for good conduct and/or
participation in certain rehabilitation or work programs. (See, e.g., §§ 2933.05, 4019.)
Not all defendants are eligible to receive all types of presentence credits. Section
2933.2, prohibits a court from awarding conduct, program participation, or specified
work program credits to persons convicted of first-degree murder. However, section
2933.2’s prohibition does not apply to custody credits under section 2900.5, and, in fact,
a defendant convicted of first-degree murder remains entitled to presentence custody
credits. (People v. Taylor (2004) 119 Cal.App.4th 628, 646 (Taylor).) As such, the trial
court erred in not awarding defendant any presentence custody credits.
A sentence that fails to award legally mandated custody credit is unauthorized and
may be corrected whenever discovered. (Taylor, supra, 119 Cal.App.4th at p. 646.) We
will award defendant 711 days of presentence custody credit and direct the trial court to
prepare a corrected abstract of judgment.
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DISPOSITION
We affirm the judgment except to amend the sentence and abstract of judgment to
stay the section 12022.1 on-bail enhancement and give defendant pre-sentence custody
credits for time served.
HULL, J.
I concur:
RAYE, P. J.
MURRAY, J.
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