Filed 7/27/21 P. v. Palmer CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE OF THE STATE 2d Crim. No. B308952
OF CALIFORNIA, (Super. Ct. No. MA071018)
(Los Angeles County)
Plaintiff and Respondent,
v.
SAMUEL DWAYNE PALMER,
Defendant and Appellant.
Appellant Samuel Dwayne Palmer was convicted of
attempted willful, deliberate and premeditated murder (Pen.
Code,1 §§ 187, subd. (a), 664), shooting at an inhabited dwelling
(§ 246), being a felon in possession of a firearm (§ 29800, subd.
(a)(1)), and unlawful possession of ammunition (§ 30305, subd.
(a)(1)). The jury found true an allegation that appellant
personally discharged a firearm in committing the attempted
Unless otherwise noted, all statutory references are to the
1
Penal Code.
murder (§ 12022.53, subds. (b), (c)), and he admitted having a
prior serious felony conviction that also qualified as a strike (§§
667, subds. (a)(1), (b)-(j), 1170.12, subds. (a)-(d)). The trial court
sentenced him to an aggregate term of 14 years to life plus 25
years in state prison, which includes a five-year prior serious
felony enhancement pursuant to section 667, subdivision (a)(1).
In appellant’s prior appeal from the judgment, we
remanded for the trial court to decide whether to exercise its
discretion to strike the five-year prior serious felony
enhancement in the interests of justice pursuant to Senate Bill
No. 1393, which went into effect on January 1, 2019. (People v.
Palmer (Sept. 25, 2019, B289617 [nonpub. opn.].) Following a
hearing on remand, the trial court declined to exercise its
discretion to strike the enhancement. Appellant contends the
court’s ruling amounts to an abuse of discretion. We affirm.
STATEMENT OF FACTS2
On the night of April 14, 2017, Gregory Robinson’s family
held a going away party for him at the Palmdale home of his
girlfriend Andrea Burton. Appellant, a member of the Harlem
Crip Rolling 30’s gang, came to the party uninvited along with
his adult son Samuaje. Appellant was in the front yard drinking
alcohol when his girlfriend Moneak Johnson arrived. As soon as
Johnson entered the front yard, appellant began hitting her in
the face and chest.
Burton asked appellant to leave but he refused. Appellant
continued to hit Johnson and eventually knocked her to the
2We reiterate verbatim the facts set forth in our prior
unpublished opinion, of which we take judicial notice. (Evid.
Code, §§ 452, subd. (a), 459, subd. (a); Cal. Rules of Court, rule
8.1115(b).)
2
ground. Robinson’s brother-in-law David tried to help Johnson
up and appellant swung at him. Robinson pushed appellant and
told him to “take that back around the corner.” Appellant
became aggressive toward Robinson and Robinson hit him,
causing him to fall. Samuaje intervened and hit Robinson in the
eye.
Appellant said that he was going to get a gun and ran
away. As Robinson was telling Samuaje to follow appellant and
stop him from returning, a gunshot rang out. Samuaje said, “Oh,
that’s my dad” and took off running. Robinson saw appellant
coming around the corner with a gun and told everyone to go in
the house and get on the ground. Robinson retrieved his gun and
ammunition from the house, went back outside, knelt behind a
tree, and saw appellant crawling on the ground toward a truck
parked across the street. Appellant got behind the truck, pointed
his gun toward Burton’s house, and asked, “Where you at?”
Robinson replied, “I’m right here. There’s kids in the house.”
Appellant started shooting and Robinson fired one shot in return.
When police sirens could be heard approaching, appellant
stopped firing his weapon and ran away.
Eight .40-caliber casings were recovered from the scene of
the shooting and bullet strikes were found on Burton’s fence, the
stucco near the front door, and two vehicles parked in front of the
residence. Appellant’s jacket, bandana, and cell phone were
found on a wall in the yard.
Johnson told the police appellant was staying at her
residence about two blocks away and had recently brought a .40-
caliber Glock into the house. Johnson did not want the gun in
her house so appellant put it in his car. In searching Johnson’s
house the morning after the shooting, the police found five .40-
3
caliber rounds of ammunition that matched the spent casings
found at the scene of the shooting. Appellant was arrested that
same day and gunshot residue was found on both of his hands.
DISCUSSION
Appellant contends the trial court abused its discretion on
remand by declining to exercise its discretion to strike his section
667, subdivision (a)(1) five-year prior serious felony
enhancement. We disagree.
When appellant was initially sentenced, the trial court had
no authority to strike or dismiss his prior serious felony
enhancement. Senate Bill 1393, which went into effect while the
appeal was pending and applies retroactively to nonfinal
judgments, deleted the provision of section 1385 that mandated
the imposition of a section 667 prior serious felony enhancement.
Pursuant to that amendment, trial courts now have the
discretion to strike or dismiss such enhancements in the interests
of justice. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) §§ 1,2;
People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
The trial court’s refusal to strike or dismiss an
enhancement for purposes of sentencing is reviewed for an abuse
of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.)
We must defer to the trial court’s decision unless appellant has
met his burden of showing that the ruling “is so irrational or
arbitrary that no reasonable person could agree with it.” (Id. at
p. 377.) Absent such a showing, the court is presumed to have
considered all relevant sentencing factors and acted to achieve
legitimate sentencing objectives, and its discretionary decision to
impose a particular sentence will not be disturbed on appeal. (Id.
at pp. 376-377; People v. Pearson (2019) 38 Cal.App.5th 112, 117.)
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At the original sentencing hearing, appellant brought a
Romero3 motion to strike his prior strike conviction in the
interests of justice. Appellant contended the motion should be
granted because the prior conviction was over 20 years old and
appellant had not suffered any other felony convictions between
the time of his prior conviction in 1997 and the instant offenses.
In denying the motion, the court reasoned: “In looking at
this the court has considered . . . the probation report. The court
heard the evidence in the trial here and . . . considered the nature
and circumstances of the current offenses, the prior convictions
that have been suffered by [appellant], the particulars as
provided to the court of his background, character and prospects
and the court notes that [appellant] does have a very lengthy
criminal history going back to 1989. He had in 1991 . . . an arrest
for robbery but was reduced to grand theft person. He went to
prison for that case in 1991. He in 1994 had a petty theft, was on
probation. [In] 1995 while on probation he had some sort of
municipal code violation. Again in 1995 he had a felony
conviction for possessing a deadly or dangerous weapon. In 1996
[he] had a misdemeanor public nuisance matter. [In] 1997 was
the first degree burglary that is the strike. He was sentenced to
three years in state prison. Since then he has had a very minor
criminal history, mostly consisting of [misdemeanor] marijuana
related offenses.”
The court continued: “So the court is mindful that
[appellant] has had very little or very minor criminal history
since . . . suffering the strike; however, the court also does still
have to consider the seriousness of the current offense and at the
People v. Superior Court (Romero) (1996) 13 Cal.4th 497
3
(Romero).
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trial we heard that [appellant] was observed to be beating . . .
this woman . . . that he had a relationship with, Miss Johnson,
and that . . . when other people tried to intervene . . . [appellant]
turned his attention to these other people at the party and
ultimately ended up shooting at Gregory Robinson and he was
convicted of attempted murder, shooting at an inhabited
dwelling, possession of a firearm by a felon and unlawful
possession of ammunition, [and] also the willful, deliberate and
premeditated allegation as to the attempted murder and the
firearms allegation as to the attempted murder. Given
[appellant’s] lengthy criminal history and the extraordinarily
serious nature of the offenses in the current case the court does
not believe it would be appropriate to strike the strike even
though the strike is somewhat old. I don’t believe that he can be
said to be outside the spirit of the Three Strikes law and I do not
believe it would be in the interest of justice to strike the strike.”
At the sentencing hearing on remand, appellant’s trial
counsel stated that in urging the court to strike the prior serious
felony enhancement he was relying on “the same argument” he
made the at the Romero motion, i.e., that the prior conviction at
issue was “very old.” In declining to strike the prior serious
felony enhancement, the court stated: “[T]he Court does recall
the trial, and for all the same reasons that were discussed during
the Romero [motion] and [at] sentencing, given the factors
pertaining to [appellant] and his history as well as the current
offense[s] and the nature of the prior, the court does not believe
that it would be in the interest of justice to strike the [section]
667(a)(1) prior; so the court will decline to do so.”
The court did not abuse its discretion in declining to strike
the prior serious felony enhancement. In arguing otherwise,
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appellant claims that “[r]ather than considering all relevant
factors, including the purpose of [Senate Bill] 1393, the age of the
prior, the absence of continuing felony or violent criminal conduct
and the sentence that could be imposed without the prior, the
court focused solely on the seriousness of the current offense and
[appellant’s] criminal history in refusing to strike the five-year
prior.” The record belies this claim. In stating the reasons for its
decision, the court expressly incorporated the reasons set forth in
its detailed ruling denying appellant’s Romero motion. Appellant
offers nothing to undermine the presumption that the court
considered all of the relevant factors and sentencing objectives in
issuing its ruling, so his claim that the ruling amounts to an
abuse of discretion necessarily fails. (People v. Carmony, supra,
33 Cal.4th at p. 374; People v. Pearson, supra, 38 Cal.App.5th at
p. 117.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
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Shannon Knight, Judge
Superior Court County of Los Angeles
______________________________
Alice Tavoukjian, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Michael C. Keller, Deputy Attorney General,
for Plaintiff and Respondent.