Filed 4/20/21 P. v. Gilmore CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B305762
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA105314)
v.
JAMAL LEE GILMORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Julian C. Recana, Judge. Affirmed.
Robert F. Somers, 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,
Senior Assistant Attorney General, Zee Rodriguez and
William N. Frank, Deputy Attorneys General, for Plaintiff
and Respondent.
____________________________________________
INTRODUCTION
Between November 2002 and February 2015, appellant
Jamal Lee Gilmore suffered a series of juvenile adjudications
and criminal convictions, as a result of which he was
sentenced to a four-year prison term and multiple terms of
probation. In July 2015, while still on probation for a prior
offense, appellant pled guilty to inflicting corporal injury on
the mother of his two children, and to dissuading her from
testifying. The latter offense qualified as a strike under the
“Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i),
1170.12) and a serious felony under Penal Code section 667,
subdivision (a). In October 2016, while still on probation for
his July 2015 offenses, appellant caused a disturbance in a
court’s lockup sally port, prompting peace and custodial
officers to move appellant into a cell. Appellant violently
resisted the officers, bruising a custodial officer’s legs and
causing a peace officer to suffer a torn meniscus in his right
knee. The jury convicted appellant of felony battery on the
peace officer and misdemeanor battery on the custodial
officer, and found that appellant inflicted great bodily injury
on the peace officer.
The trial court selected the three-year upper term for
appellant’s felony battery conviction, relying on a
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psychological evaluation indicating appellant harbored anger
against and a desire to fight law enforcement (from which
the court inferred that appellant posed a risk of danger to
public safety), the fact that appellant was on probation when
he committed the instant offenses, and appellant’s poor
performance on probation. The court sentenced appellant to
an aggregate prison term of 14 years, including a five-year
enhancement for appellant’s prior serious felony under Penal
Code section 667, subdivision (a). In an unpublished
opinion, we affirmed the judgment, concluding, inter alia,
that the court did not err in selecting the upper term for the
reasons it stated. (People v. Gilmore (Dec. 11, 2018, No.
B284043).) However, we remanded to the trial court with
directions to decide whether to exercise its newly granted
discretion to strike the prior-serious-felony enhancement
under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2;
(S.B. 1393)). On remand, the court declined to strike the
enhancement, relying on the same reasons it had articulated
when selecting the upper term.
On appeal, appellant contends the trial court abused
its discretion in declining to strike the prior-serious-felony
enhancement, arguing the court’s decision was so arbitrary
or irrational that no reasonable person could agree with it.
We affirm.
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FACTUAL BACKGROUND
A. Appellant’s Prior Offenses
Between November 2002 and February 2015, appellant
suffered a series of juvenile adjudications and criminal
convictions, including a 2008 conviction for transporting
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controlled substances for sale. (Health & Saf. Code,
§ 11352, subd. (a).) Appellant was sentenced to a four-year
prison term on his transportation-for-sale conviction, and to
probation on his other convictions.
In July 2015, while still on probation for his February
2015 offense, appellant pled guilty to inflicting corporal
injury on the mother of his two children (Pen. Code, § 273.5,
subd. (a)), and to dissuading her from testifying (id., § 136.1,
subd. (b)(2)). The latter offense qualified as a strike and a
serious felony. (Id., §§ 667, subd. (a)(4), 1170.12, subd.
(b)(1), 1192.7, subd. (c)(37).) Pursuant to a plea deal,
appellant was sentenced to three years of probation.
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In addition to his 2008 transportation-for-sale conviction,
appellant also suffered: (1) a 2002 juvenile adjudication for
attempted robbery (Pen. Code, §§ 211, 664); (2) a 2005 juvenile
adjudication for threats against school employees (id., § 71); (3) a
2006 juvenile adjudication for a probation violation (Welf. & Inst.
Code, § 778); (4) a June 2012 misdemeanor conviction for trespass
(Pen. Code, § 602); (5) August 2012 misdemeanor convictions for
battery (id., § 242) and vandalism (id., § 594); and (6) a February
2015 misdemeanor conviction for vandalism (ibid.).
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B. Appellant’s Instant Offenses
On October 19, 2016, following an appearance at the
Long Beach courthouse, appellant awaited a bus in the
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lockup sally port. Upon learning that the bus was full,
appellant became upset and demanded a place on the bus.
Los Angeles County Custody Assistant Xochitl
Walden-Ramirez and other lockup personnel told him to
return to the lockup, but he refused to do so.
Appellant -- who was still on probation for his July
2015 offenses -- lunged at the deputy sheriff assigned to
drive the bus and said, “I will show you, gangster.” Los
Angeles County Deputy Sheriff Darren Williams, the lockup
supervisor, grabbed appellant and directed other deputy
sheriffs to return appellant to the lockup. As the deputy
sheriffs dragged appellant into the lockup, he thrashed his
head, kicked his feet, and tried to turn around. Appellant
said to custody assistant Walden-Ramirez, “Bitch, I’m going
to kill you. Fucking bitch. I’m going to get you.”
Inside the lockup, Williams instructed two other
deputy sheriffs to place appellant in a cell. At the door of the
cell, appellant hooked or locked his legs in an effort to avoid
entering it. The deputy sheriffs and Walden-Ramirez
2
The facts regarding appellant’s instant offenses are taken
from our unpublished opinion affirming the judgment and
remanding for consideration of the court’s discretion under S.B.
1393.
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nonetheless moved appellant into the cell, where he
continued to resist them.
In order to allow the other deputy sheriffs and
Walden-Ramirez to back out of the cell, Deputy Sheriff
Williams put his legs against appellant, who had braced his
feet on a bench attached to the cell’s wall. Appellant then
pushed off from the bench, causing Williams’s knees to
hyperextend. As a result, Williams suffered a torn meniscus
in his right knee. Also injured was Walden-Ramirez, who
was shoved into the cell’s benches and suffered bruises on
her calves.
Williams tried to close the cell door, but the door moved
slowly, enabling appellant to move himself into the doorway.
Appellant spit at Walden-Ramirez, but hit a deputy sheriff.
A lockup sergeant then appeared and ordered the deputy
sheriff to pepper spray appellant, which rendered him
“semicompliant.”
At appellant’s trial on battery charges, the jury viewed
video recordings of the pertinent events and heard testimony
from Williams, Walden-Ramirez, and the deputy sheriff on
whom appellant spat. The jury convicted appellant of felony
battery on Deputy Sheriff Williams (Pen. Code, § 243, subd.
(c)(2)), and found that appellant inflicted great bodily injury
on him (id., § 12022.7, subd. (a)). The jury also convicted
appellant of misdemeanor battery on Custody Assistant
Walden-Ramirez. (Id., § 243, subd. (b).)
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C. The Original Sentencing Hearing
In preparation for sentencing, appellant produced a
report of his evaluation by psychologist Michelle Margules,
Psy.D. Dr. Margules described appellant’s reported history
of physical and sexual abuse in his childhood and treatment
for “Bipolar/Schizophrenia,” and noted that his mother
reportedly had been murdered in his youth. She reported
that appellant told her “he struggles now with anger and
wanting to fight with police,” and that he “acknowledged
general anger toward law enforcement.” Dr. Margules
diagnosed appellant with bipolar disorder and a childhood
history of physical and sexual abuse. She concluded,
“Regardless of Mr. Gilmore’s legal outcome, he appears to
require mental health treatment (including a medication
evaluation by a psychiatrist) to address anger management,
mood disturbance and a history of trauma.”
At the sentencing hearing, the prosecutor urged the
court to impose the three-year upper term for appellant’s
felony battery conviction, arguing that appellant had been “a
danger to society for many many years.” He argued that
appellant’s troubled history had factored into the leniency
appellant already had received in being sentenced to
probation on his domestic violence and witness intimidation
convictions, and that further leniency should yield to the
protection of the public.
Defense counsel urged the court to impose the low
term. Counsel observed there was “no reason to even
characterize” appellant’s instant offenses because the court
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had “seen what his actions were” when it viewed the video
recordings played at trial. Counsel nevertheless argued that
appellant had committed the offenses while struggling with
the deputy sheriffs, not while “criming,” and that but for the
injury to Deputy Sheriff Williams, “a lay person would
probably say there is no crime there.” Relying on Dr.
Margules’s report, he argued appellant “needs help or he
needs to be treated or moved from society.” Finally, defense
counsel argued that appellant was facing a disproportionate
sentence as a result of his plea deal in the domestic violence
and witness intimidation case, in which the prosecution had
“offer[ed] him the front door to the courtroom if he . . . t[ook]
a five-year prior and a strike.”
Before pronouncing sentence, the court heard from
appellant, who expressed remorse for the incident involving
Deputy Sheriff Williams, stating, “I don’t know what
happened right there.” Appellant maintained that he had no
criminal record of violence aside from his domestic violence
conviction, which he characterized as “little stuff,”
commenting, “Nothing happened. I just pushed her to the
ground because she was slapping me.” He noted that he had
taken classes on domestic violence and obtained mental
health treatment.
The court observed it had little discretion over the
aggregate term other than in the selection of the base term.
It selected the upper term, explaining, “I have taken into
consideration, seeing Mr. Gilmore on multiple occasions,
some days Mr. Gilmore has been very pleasant, some days
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not so much. Maybe that is attributed to his psychological
history from the evaluation by Ms. Margules by his bipolar
and manic depressive state. . . . [¶] I will also note . . . there
were two portions in [Dr. Margules’s] report where it stated,
one, that he struggles now with anger and wants to fight the
police; and two, that, quote, ‘he has a general anger towards
law enforcement,’ unquote. [¶] I am fully sympathetic as to
his history. There [are] allegations of . . . the death of his
mother early on, physical abuse, [and] sexual abuse as to Mr.
Gilmore that may have contributed to his personality. The
court can look at that as a source of mitigation. But based
on even [appellant’s proffered] psychologist evaluation, [he]
poses a danger to society. It’s -- if he is a danger to law
enforcement, then how is he going to be towards the regular
citizens of the community? . . . [¶] The court also takes into
consideration that . . . he was on probation when the crime
was committed[;] [that] [h]is probation was unsatisfactory
during that time; [and] that he served a prior prison term.
All of those are circumstances that make the high term the
appropriate term.”
The court sentenced appellant to an aggregate term of
14 years, comprising the three-year upper term for the
felony battery conviction (doubled to six years under the
Three Strikes law), a three-year enhancement for the
infliction of great bodily injury, and a five-year enhancement
for appellant’s prior serious felony under Penal Code section
667, subdivision (a).
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D. Our Prior Opinion
Appellant appealed the judgment, contending, inter
alia, that the trial court had erred in selecting the upper
term. He argued the court had failed to give due weight to
his mental illness and difficult childhood, the harshness of
the mandatory aspects of his sentence, and the consequences
of a lengthy sentence for the possibility of his rehabilitation.
We rejected this contention, observing that the court had
“attended carefully to appellant’s showing of mitigating
circumstances,” had found several aggravating factors, and
“could reasonably have concluded that public safety was best
served if appellant addressed his mental health issues while
incarcerated.” We affirmed the judgment, but remanded to
the trial court with directions to decide whether to exercise
its newly granted discretion under S.B. 1393 to strike the
prior-serious-felony enhancement. The remittitur issued on
February 14, 2019.
E. The Resentencing Hearing
On February 20, 2020, the court held a resentencing
hearing to decide whether to strike the prior-serious-felony
enhancement. At the outset, the court noted that it had
reread Dr. Margules’s report and the transcript of the
original sentencing hearing, and that it had additionally
read several documents produced by appellant concerning
his activities while incarcerated (including a vocational
welding program, mental health treatment, and a “12 steps”
program).
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The court heard from appellant, who described his
activities while incarcerated and denied that he harbored
any anger against law enforcement, claiming he had never
expressed such anger to Dr. Margules. Appellant also
expressed remorse for the instant offenses.
Defense counsel informed the court that appellant had
received no discipline while incarcerated. He argued the
video recordings of the instant offenses (which are not in the
record) showed appellant’s conduct had been merely reckless
rather than intended to cause injury. He observed that the
prior-serious-felony enhancement arose from a plea deal
appellant had accepted in order to be released on probation,
which he characterized as a “fool’s deal,” despite
acknowledging the same deal likely would have been struck
had he represented appellant in the prior case.
The prosecutor acknowledged that appellant had done
“a good job in prison,” but argued that appellant already had
been granted leniency in being sentenced to probation on his
domestic violence and witness intimidation convictions, and
that the court should not grant him further leniency by
striking the prior-serious-felony enhancement.
The court noted that it remembered the video
recordings of the instant offenses. It referred counsel to its
stated rationale, during the original sentencing hearing, for
selecting the upper term for appellant’s felony battery
conviction, which it summarized as follows: “I stated I was
fully sympathetic to Mr. Gilmore’s mental health history, his
prior history of losing his mother, physical abuse, [and]
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sexual abuse. However, I also did consider the evaluation by
Dr. Margules; that he was on probation; [and] that he was
unsatisfactory during probation. For those reasons, I chose
the high term.” Relying on “those reasons” and “that same
rationale,” the court declined to strike the prior-serious-
felony enhancement. The court added, “I went again and
read the report by Dr. Margules in light of what Mr. Gilmore
stated. It looks like -- I mean talking about what making a
positive -- being in a bad situation and being in jail or state
prison [sic], he is [making every] effort that he can to
advance himself, the 12 steps. He is taking classes and
treatment. All the more reason, and to quote from the last
page [of Dr. Margules’s report], quote, ‘Regardless of
Mr. Gilmore’s legal outcome, he appears to require mental
health treatment, including a medication evaluation by a
psychiatrist to address anger management, mood
disturbance and the history of trauma,’ unquote.” The court
concluded that “for those reasons,” the court would not
exercise its discretion to strike the enhancement, and
appellant’s 14-year aggregate term would stand.
Appellant timely appealed.
DISCUSSION
Appellant contends the trial court abused its discretion
3
in declining to strike the prior-serious-felony enhancement.
3
The People misconstrue appellant’s contention as separate
claims that his sentence is cruel or unusual, and that the trial
(Fn. is continued on the next page.)
12
As appellant acknowledges, “‘a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that
no reasonable person could agree with it.’” (People v.
Sperling (2017) 12 Cal.App.5th 1094, 1102, quoting People v.
Carmony (2004) 33 Cal.4th 367, 377.)
The trial court acted within its discretion in declining
to strike the prior-serious-felony enhancement. The court
relied on the reasons it had articulated at appellant’s
original sentencing hearing for imposing the upper term,
including its finding that appellant posed a risk of danger to
public safety. We previously found no error in the court’s
reliance on those reasons in selecting the upper term. We
now find no error in the court’s reliance on the same reasons
in declining to shorten appellant’s sentence by five years.
The court’s finding that appellant posed a risk of danger to
court failed to adequately state reasons for declining to strike the
enhancement. The People then argue these purported claims are
both forfeited and without merit. In reply, appellant observes
that the People misconstrued his contention, and argues he did
not forfeit it.
We find no forfeiture. We directed the trial court to
consider whether to strike the enhancement, and appellant urged
the court to strike it, arguing largely the same grounds he
advances on appeal. Thus, the court had an opportunity to avoid
the asserted error in the first instance, satisfying the principal
purpose of the forfeiture doctrine. (See, e.g., People v. Scott
(1994) 9 Cal.4th 331, 353 [“As in other waiver cases, we hope to
reduce the number of errors committed in the first instance and
preserve the judicial resources otherwise used to correct them”].)
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public safety was supported by appellant’s prior conviction
for a domestic violence offense, his failure to conform to the
law despite serving a prior prison term and repeatedly being
placed on probation, and his infliction of great bodily injury
during the instant offense of battery on a peace officer. We
conclude the court’s decision to leave the prior-serious-felony
enhancement in place was not so arbitrary or irrational that
no reasonable person could agree with it. (See People v.
Shaw (2020) 56 Cal.App.5th 582, 558 [trial court acted
within its discretion in declining to strike prior-serious-
felony enhancement under S.B. 1393, where court relied on
frequency of defendant’s prior convictions and “stood by the
reasons [it] had articulated at the original sentencing
hearing,” including the serious nature of defendant’s most
recent offense].)
Appellant insists his instant and past offenses were
“relatively minor,” and points to his asserted rehabilitative
efforts since the original sentencing hearing. But the trial
court considered these matters. Moreover, we previously
observed that the court “could reasonably have concluded
that public safety was best served if appellant addressed his
mental health issues while incarcerated.” This conclusion
has not become arbitrary or irrational merely because
appellant has received some treatment since his original
sentencing hearing. Finally, appellant understates the
seriousness of his criminal history, particularly with respect
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to his convictions for abusing the mother of his children and
4
dissuading her from testifying.
In sum, the trial court’s decision not to shorten
appellant’s sentence by five years was not so irrational or
arbitrary that no reasonable person could agree with it.
Thus, the court acted within its discretion in declining to
strike the prior-serious-felony enhancement.
4
While appellant argues his sentence of probation on his
domestic violence and witness intimidation convictions
demonstrates that the People and the court did not deem them
serious, his argument overlooks the fact that he was sentenced to
probation pursuant to a plea deal. As appellant’s counsel
acknowledged at both sentencing hearings, that deal carried
consequences for any subsequent conviction, including imposition
of the prior-serious-felony enhancement (which the court then
lacked discretion to strike). On the record before us, a reasonable
person could agree with the trial court’s decision to hold
appellant to the expected consequences of his bargain. (Cf.
People v. Arnold (2004) 33 Cal.4th 294, 308 [where defendant
enters plea deal pursuant to which he receives probation and
waives custody credits, application of credits to defendant’s
prison term upon revocation of probation would be “unjust
enrichment, as the defendant would be getting the benefit of the
bargain reached at his original sentencing and later be permitted
to revoke the consideration he gave up to obtain the benefit of
that bargain”].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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