People v. Smadi CA2/4

Filed 3/22/22 P. v. Smadi 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 FOUR

THE PEOPLE, B303708
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. PA090810)

v.

AHMAD TALAL SMADI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles
County, Mark S. Arnold, Judge. Affirmed.
Bird Rock Law Group, and Andrea S. Bitar, 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, Assistant Attorney General,
Steven D. Matthews, Supervising Deputy Attorney General, and J.
Michael Lehmann, Deputy Attorney General, for Plaintiff and
Respondent.
 While on probation for two convictions for making criminal
threats (Pen. Code, § 422, subd. (a)),1 on April 12, 2018, defendant and
appellant Ahmad Talal Smadi sent his probation officer an email. In
his email, defendant stated that if he did not receive $10 million from
the County of Los Angeles, and personal apologies from the judge who
presided over his prior cases (the Honorable Hayden Zacky) and the
prosecuting attorney (Los Angeles County Deputy District Attorney
(DDA) Elena Abramson), defendant would execute both for treason.
Each victim received the email, and defendant was arrested.
In a June 2018 information, defendant was charged with two
counts of making criminal threats (§ 422, subd. (a)). The information
also alleged that defendant had suffered two convictions in November
2013 for making criminal threats, each constituting a prior serious or
violent felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds.
(a)-(d)). Following a jury trial, defendant was convicted of both counts
of making criminal threats.
Proceeding in propria persona at bifurcated sentencing
proceedings, defendant filed motions to grant him probation and reduce
his new convictions to misdemeanors. The court denied both motions
and found the prior conviction allegations to be true. The court then
reviewed, and denied, a motion filed by defendant’s former counsel to
strike the prior convictions under People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (Romero). Defendant was sentenced to 25 years
to life on count 1, plus two consecutive five-year terms for the prior

1 Subsequent references to statutes are to the Penal Code.

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serious felony convictions (§ 667, subd. (a)). He was also sentenced to a
concurrent term of 25 years to life on count 2.
On appeal, defendant contends that the court erred by denying his
motion for acquittal (§ 1118.1) on both counts of making criminal
threats. He also contends the court committed prejudicial error by
refusing to instruct the jury with CALCRIM No. 3428, which provides
that the jury may consider evidence that defendant was suffering from
a mental disease or disorder when deciding whether he acted with a
specific intent. Finally, defendant contends that we should remand the
matter for the trial court to exercise its discretion to impose or strike
the five-year sentence enhancements under Senate Bill No. 1393, which
became effective one year before the trial court sentenced defendant.
Finding no merit in these arguments, we affirm the judgment.

FACTUAL BACKGROUND
A. Prosecution Evidence
1. Events Preceding Charged Offenses
DDA Abramson testified that she was the prosecuting attorney on
both of defendant’s criminal threats cases in late 2012. In the first case
(the Van Nuys case), defendant had threatened to kill one of his
roommates while holding a knife, and sent emails to his roommates
threatening to “put two bullets” in the back of their skulls if he were to
see them inside the home. In the second case (the San Fernando case),
defendant threw a Molotov cocktail into his father’s home while those
inside the home were sleeping. Later that day, defendant sent his
father an email stating, “If you don’t come clean, you will die.”

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 Judge Zacky presided over both cases in 2013. Judge Zacky
testified that he had signed a search warrant in the San Fernando case
based on an affidavit that alleged defendant had assaulted his mother,
and had thrown a Molotov cocktail into his father’s home. Through a
global disposition in both cases, defendant pleaded guilty to two counts
of criminal threats and one count of misdemeanor vandalism, and was
sentenced to formal probation. Judge Zacky viewed defendant as
“[v]ery respectful” and “highly intelligent.”
Between May 2015 and April 2018, Los Angeles County Deputy
Probation Officer Anthony Kramer oversaw defendant’s probation in
both the Van Nuys and San Fernando cases. When meeting with
Officer Kramer (upwards of 70 times), defendant appeared very logical
and showed no signs of being psychotic. After violating the terms of his
probation in 2016,2 defendant was evaluated by a forensic psychiatrist.
According to Officer Kramer, defendant was never prescribed
psychotropic medication by a healthcare provider.
According to Officer Kramer, as defendant became more
comfortable, he admitted that he had “played up the whole psychosis” to
avoid a long prison sentence. At no point during his time overseeing
defendant did Officer Kramer feel the need to refer him to a mental
health provider.

2 Judge Zacky testified that defendant had admitted to violating
probation for possessing dangerous weapons and alcohol, and for sending
threatening and harassing emails to an owner of a fitness studio.

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 2. Criminal Threats against Judge Zacky and DDA Abramson
Around 7:00 a.m. on April 12, 2018, Officer Kramer received an
email from defendant. The email, which was introduced into evidence
by the prosecution, provided as follows:
“(1) All Jews must denounce the State of Israel as a terrorist
nation. [¶] (2) All Arabs must denounce the State of Palestine as a
terrorist nation. [¶] . . . [¶] Your [expletive] war leaked into 9/11 and
that’s my [expletive] territory. [¶] Your [expletive] Middle Eastern war
became an American problem. [¶] So I just [expletive] fixed it.
“I am the executioner - in more ways than one. [¶] And what do I
want in return for this oh so glorious gift of patriotic service?
“(i) $10 million from Los Angeles County for wrongful
imprisonment. [¶] I’ll put it to better use than any charity organization
I’ve seen, heard of or worked with to date. [¶] And you already know
that I’m donating that [expletive] to charity.
“(ii) A personal apology from D.A. Abramson and Judge Zacky.
“If you refuse, then I will execute Elena Abramson and Hayden
Zacky for treason against the United States of America; because I can
prove beyond a reasonable doubt that they deliberately, maliciously
and/or by criminal neglect cooperated in my wrongful imprisonment. . . .
[F]urthermore, my wrongful imprisonment is directly linked to my
journalistic and patriotic efforts to secure justice for the 9/11 false-flag
demolition operation of treason; therefore, Elena Abramson and Hayden
Zacky knowingly and/or by criminal neglect aided and abetted the
enemy, which is tantamount to treason.
“Now, mother [expletive]. [¶] Give me my check. [¶] . . . [¶]

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 “REMEMBER THIS LINE: I know how to make a bomb so big I
could blow up half of Los Angeles County. [¶] . . . [¶]
“Who the [expletive] would stir up so much [expletive] without
offering a solution?
“A psychotic individual. [¶] Or a [expletive] genius. [¶] I’ll let a
jury of my peers determine which of the two characterizes yours truly.”
Shortly after Officer Kramer read the email, he received a call
from DDA Abramson to discuss worrisome emails that defendant had
purportedly sent that morning to Dr. Kory Knapke, a forensic
psychiatrist who had analyzed defendant in 2016. (We describe those
emails in greater detail, below.) Officer Kramer read DDA Abramson a
portion of the email he had just received from defendant and forwarded
the email to her.
Based on the content of the email and defendant’s past behavior,
DDA Abramson felt overwhelmed, worried about her safety, and
concerned that the email constituted an immediate threat. To ensure
she was safe that morning, DDA Abramson contacted the investigators
in her office, and later the local police.
Around 12:00 p.m. the same day, a member of the Judicial
Protection Unit informed Judge Zacky that a threat had been made
against his life. After reviewing defendant’s email later that afternoon,
Judge Zacky felt greatly concerned. Aware that defendant had studied
physics and mathematics in college, Judge Zacky “had no reason to

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doubt” defendant’s ability to create a bomb.3 The Judicial Protection
Unit assisted in protecting Judge Zacky and his family. Judge Zacky
also made it a point to carry his firearm with him to court.
Officer Kramer arranged for defendant to be arrested later that
day (April 12, 2018), during a pre-scheduled probation appointment.

C. Email from Doctor Knapke
Officer Kramer testified that around 8:54 a.m. on April 12, 2018,
he received an email from Doctor Knapke.4 In his email, Doctor Knapke
stated as follows:
“My name is Dr. Kory Knapke, Forensic Psychiatrist for LA
County Superior Court. I received some disturbing email messages
from a defendant that I evaluated two years ago in 2016. It appears the
defendant has carbon copied you the emails that he sent me, or at least
one of them.
“Based upon my review of his email messages the defendant
appears to be psychotic and/or manic and is decompensating. I am
concerned about the safety of the defendant’s family and the
community. . . .
“In the wake of many tragedies happening in our communities by
unstable people, I wanted to reach out to law enforcement personnel to

3 DDA Abramson also testified that she was aware defendant had
attended college for “chemistry or some other science.”

4 DDA Abramson was copied on the email to Dr. Knapke sent by
defendant. Dr. Knapke was not called to testify as a witness.

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alert you to the fact that it appears Mr. Smadi may be decompensating
psychiatrically at the present time which increases his risk of danger to
the community.
“At minimum, I think it might be helpful to . . . evaluate Mr.
Smadi to assess whether he is currently a Danger to Himself or Danger
to Others.”
Officer Kramer did not arrange for defendant to be evaluated.

B. Defense Evidence
Defendant did not testify at trial or call any witnesses to testify in
his defense.

DISCUSSION
A. Denial of Section 1118.1 Motion
At the close of the prosecution’s case-in-chief, defense counsel
moved under section 1118.1 for acquittal of both counts of making
criminal threats.5 Counsel argued that the prosecution had failed to
present sufficient evidence from which a jury could find defendant’s
April 12, 2018 email to be an “unconditional or immediate [threat].”
Denying the motion, the trial court stated that defendant’s threat need

5 Section 1118.1 provides in relevant part that on motion of the
defendant at the close of the evidence, the court “shall order the entry of a
judgment of acquittal of one or more of the offenses charged in the accusatory
pleading if the evidence then before the court is insufficient to sustain a
conviction of such offense or offenses on appeal.”

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not have been entirely unconditional, and that defendant need not have
an immediate ability to carry out the threat.
On appeal, defendant contends the trial court’s ruling was
erroneous, as the email he had sent, though “admittedly inflammatory,”
was not sufficiently specific and unequivocal. We disagree.
In reviewing a motion for acquittal, we independently examine the
entire record in the light most favorable to the judgment to determine
whether it discloses substantial evidence from which a reasonable trier
of fact could find defendant guilty beyond a reasonable doubt. (People v.
Veamatahau (2020) 9 Cal.5th 16, 35; People v. Dalton (2019) 7 Cal.5th
166, 249.)
To prove the offense of making a criminal threat, the prosecution
must to establish five elements: “(1) that the defendant ‘willfully
threaten[ed] to commit a crime which will result in death or great
bodily injury to another person,’ (2) that the defendant made the threat
‘with the specific intent that the statement . . . is to be taken as a
threat, even if there is no intent of actually carrying it out,’ (3) that the
threat . . . was ‘on its face and under the circumstances in which it [was]
made, . . . so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an immediate
prospect of execution of the threat,’ (4) that the threat actually caused
the person threatened ‘to be in sustained fear for his or her own safety
or for his or her immediate family’s safety,’ and (5) that the threatened
person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v.
Toledo (2001) 26 Cal.4th 221, 227–228, citing People v. Bolin (1998) 18
Cal.4th 297, 337–340 & fn. 13 (Bolin); see § 422, subd. (a).)

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 “[P]rosecution under section 422 does not require an unconditional
threat of death or great bodily injury.” (Bolin, supra, 18 Cal.4th at
p. 338.) Rather, the term “unconditional” (as well as the terms
“unequivocal,” “immediate,” and “specific”) refers only to a quality that
must be sufficiently present “in the threat and surrounding
circumstances to convey gravity of purpose and immediate prospect of
execution to the victim.” (People v. Stanfield (1995) 32 Cal.App.4th
1152, 1157–1158 (Stanfield); see Bolin, supra, at pp. 339–340 [use of
the terms do not impose unqualified requirements].) Even a conditional
threat is actionable if it is based on a contingency “highly likely to
occur.” (People v. Wilson (2010) 186 Cal.App.4th 789, 806 (Wilson);
accord, Stanfield, supra, 32 Cal.App.4th at p. 1158.)
“‘A threat is sufficiently specific where it threatens death or great
bodily injury. A threat is not insufficient simply because it does “not
communicate a time or precise manner of execution, section 422 does
not require those details to be expressed.”’” (Wilson, supra, 186
Cal.App.4th at p. 806.) Rather, “‘it is the circumstances under which
the threat is made that give meaning to the actual words used. Even an
ambiguous statement may be a basis for a violation of section 422.’
[Citation.]” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.)
The evidence in this case amply supports a finding that
defendant’s email constituted a sufficiently specific and unequivocal
threat to kill both victims. In his email, defendant stated that he would
“execute Elena Abramson and Hayden Zacky for treason against the
United States of America” if two conditions were not met: the payment

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of $10 million by the County of Los Angeles and a personal apology by
both victims. It is undisputed that neither of those conditions would be
met. (See Wilson, supra,186 Cal.App.4th at pp. 806–807.) Moreover,
describing himself as an “executioner in more ways than one,”
defendant stated that he knew how to “make a bomb so big [he] could
blow up half of Los Angeles County.” Obviously, defendant
communicated his specific intent to kill (“execute”) DDA Abramson and
Judge Zackey.
Relying on In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.),
and In re George T. (2004) 33 Cal.4th 620 (George T.), defendant
contends that despite using “admittedly inflammatory” words, his email
did not constitute a criminal threat, as “there was no history of violent
behavior by [him] towards Judge Zacky or [DDA] Abramson.” But
neither Ricky T. nor George T. require that the defendant have had a
history of violence against the victim. The courts in those cases
reviewed the parties’ history as part of the surrounding circumstances
to determine only whether the facially ambiguous statements in those
cases constituted criminal threats. (See Ricky T., supra, at pp. 1135,
1137–1139 [considering surrounding circumstances given student’s
ambiguous statement to teacher, “I’m going to get you”]; George T.,
supra, at pp. 635–638 [the “incriminating circumstances in this case are
noticeably lacking” for the poem stating, “For I can be the next kid to
bring guns to kill students at school”].) Here, defendant’s email left no
ambiguity. He unequivocally declared his intent to execute the victims,
who were, respectively, the prosecutor and presiding judge in his prior

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cases. In short, substantial evidence supports the instant charges, and
the trial court properly denied the section 1118.1 motion for acquittal.

B. Refusal to Instruct the Jury with CALCRIM No. 3428
Following the close of evidence, defense counsel requested that the
trial court instruct the jury with CALCRIM No. 3428 [Mental
Impairment: Defense to Specific Intent or Mental State],6 based on Dr.
Knapke’s email that defendant may be psychotic or decompensating.
The trial court denied the request, and reasoned that the trial evidence
did not establish that defendant was diagnosed with mental disorder or
was suffering from an impairment that would impact his ability to form
a particular mental state.
Despite the court’s refusal to give the pinpoint instruction, during
closing argument, defense counsel referred to Dr. Knapke’s email to
argue that defendant was decompensating and “was delusional.
Psychotic. That . . . definitely has an impact on his intent, to use a
third party intermediary. So, again, if he’s decompensating, how is he
manifesting all this [sic] brilliant idea?”
On appeal, defendant renews his trial argument that Dr. Knapke’s
email provided substantial evidence to support instructing the jury with
CALCRIM No. 3428. We disagree.

6 CALCRIM No. 3428 provides in relevant part: “You have heard
evidence that the defendant may have suffered from a mental (disease[,]/ [or]
defect[,]/ [or] disorder). You may consider this evidence only for the limited
purpose of deciding whether, at the time of the charged crime, the defendant
acted [or failed to act] with the intent or mental state required for that
crime.”

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 “Evidence of mental disease, mental defect, or mental disorder is
admissible solely on the issue of whether or not the accused actually
formed a required specific intent,” and is inadmissible “to show or
negate the capacity to form any mental state.” (§ 28, subd. (a).) Making
criminal threats is a specific intent crime, and requires both the general
intent of making a threatening statement, and the specific intent “that
the statement . . . be taken as a threat.” (§ 422, subd. (a); see People v.
Alvarado (2005) 125 Cal.App.4th 1179, 1186–1188.)
“CALCRIM No. 3428 is a pinpoint instruction that must be given
only if requested by the defendant, and only if substantial evidence
supports the defense theory that defendant’s mental disease or disorder
affected the formation of the relevant intent or mental state. [Citation.]
Also, expert medical opinion testimony is necessary to establish that a
defendant suffered from a mental disease, mental defect, or mental
disorder within the meaning of CALCRIM No. 3428, because jurors
cannot make such a determination from common experience.” (People v.
Larsen (2010) 205 Cal.App.4th 810, 824 (Larsen), citing People v. Ervin
(2000) 22 Cal.4th 48, 91 (Ervin); People v. Moore (2002) 96 Cal.App.4th
1105, 1116–1117 (Moore); People v. Musselwhite (1998) 17 Cal.4th 1216,
1229–1230; People v. Cox (1990) 221 Cal.App.3d 980, 987.)
Cases in which CALCRIM No. 3428 or its predecessor, CALJIC
No. 3.32, have been given to the jury “have all done so where expert
medical testimony was adduced on the question of [the] defendant’s
mental disease, etc.” (Moore, supra, 96 Cal.App.4th at p. 1117; see
Larsen, supra, 205 Cal.App.4th at p. 824.)

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 For example, in People v. Panah (2005) 35 Cal.4th 395 (Panah),
the only evidence in support of the defendant’s request for the mental
disease instruction was from an emergency physician who testified that
the defendant was psychotic, agitated, delusional, and under the
influence of controlled substances the day after the crime. (Id. at
p. 484.) However, witnesses who saw the defendant between the crime
and the emergency room visit testified that he interacted with them
with no appearance of being under the influence of any substance. (Id.
at pp. 484–485.) The Supreme Court concluded that the physician’s
testimony “established that defendant may have suffered from . . .
psychosis and, at some point, his condition deteriorated. This does not
constitute evidence of defendant’s mental state at the time of the
commission of the crime,” and was thus insufficient to support giving
the instruction. (Id. at p. 485, italics added; accord, Moore, supra, 96
Cal.App.4th at pp. 1116–1117 [medical expert did not provide opinion
that the defendant suffered from a mental disease at the time of the
offense].)
In contrast, the trial evidence in People v. Smithey (1999) 20
Cal.4th 936, involved testimony by three experts who analyzed the
defendant’s “mental deficits” and provided opinions that he had suffered
from organic brain damage, diffused brain dysfunction, mild mental
retardation, and “classic amphetamine psychosis syndrome.” (Id. at
p. 955.) In addition, the experts testified that the defendant “would not
have committed the crimes if he had not suffered from these mental
disorders.” (Id. at pp. 955–956, 959.) Based on this evidence, the

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Supreme Court concluded that the court properly instructed jury with
CALJIC No. 3.32. (Id. at pp. 969, 986–988 & fns. 15, 16.)
Here, defendant did not introduce expert testimony or evidence
that he suffered from a specific mental disease, disorder, or impairment
at the time he sent his threatening email. In his email, Dr. Knapke
described his supposition that defendant was perhaps psychotic or
manic and was possibly decompensating; but Dr. Knapke had not
performed any current analysis of defendant’s condition and did not
purport to make a specific diagnosis. (Compare Panah, supra, 35
Cal.4th at p. 485; Moore, supra, 96 Cal.App.4th at pp. 1116–1117.)
Absent expert testimony establishing that defendant was suffering from
a recognized mental condition, the evidence was insufficient to support
giving CALCRIM No. 3428.
Even assuming the court erred by refusing to give CALCRIM No.
3428, the error was harmless. Prejudice resulting from the failure to
give a pinpoint instruction is assessed under the state constitutional
standard requiring reversal only if it is reasonably probable the jury
would have reached a different result if the omitted instruction had
been given. (Larsen, supra, 205 Cal.App.4th at p. 829; see Ervin, supra,
22 Cal.4th at p. 91; People v. Watson (1956) 46 Cal.2d 818.)
Here, it is not reasonably probable the jury would have reached a
different result if CALCRIM No. 3428 had been given. The jury
instructions as a whole provided the applicable law, instructed the jury
on the necessary elements of making criminal threats, and informed the
jury of its ability to use circumstantial evidence to establish whether
defendant harbored the requisite intent. (See, e.g., CALCRIM Nos.

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1300 [Criminal Threats Defined]; 225 [Circumstantial Evidence: Intent
or Mental State]; 251 [Union of Act and Intent: Specific Intent or
Mental State].) Moreover, within the context of these instructions,
defense counsel argued (without contradiction according to the
applicable law as explained to the jury) that the evidence negated a
finding of intent. Using the words of Dr. Knapke’s email, counsel
argued that defendant’s decompensation and psychosis deprived him of
the capacity to form the requisite intent. In light of the foregoing, we
cannot say that it is reasonably probable the jury would have reached a
different result had it received CALCRIM No. 3428.

C. Senate Bill No. 1393
Finally, defendant contends that we should remand this case for
the trial court to consider exercising its discretion to strike the five-year
sentence enhancements (§ 667, subd. (a)(1)), under Senate Bill No.
1393. Signed into law September 30, 2018, Senate Bill No. 1393
amended sections 667 and 1385 to provide the trial court with
discretion to strike the enhancements in the interests of justice. (People
v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia); Stats. 2018, ch. 1013,
§§ 1-2.) The new law took effect January 1, 2019, approximately one
year before defendant was sentenced in this case. Representing himself
at the sentencing hearing, defendant never requested that the court
exercise its discretion under the amended law to strike either
enhancement.
Defendant asserts a remand is in order because the record does
not affirmatively demonstrate that the trial court was aware it had the

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discretion to strike the section 667, subdivision (a)(1) enhancements.
The People contend, and we agree, that defendant has forfeited the
argument by failing to raise it below.
“‘In general, the forfeiture rule applies in the context of sentencing
as in other areas of criminal law.’ [Citation.]” (People v. Trujillo (2015)
60 Cal.4th 850, 856.) “It is true that . . . a defendant forfeits on appeal
any ‘claims involving the trial court’s failure to properly make or
articulate its discretionary sentencing choices’ in the absence of
objection below. [Citations.]” (People v. Wall (2017) 3 Cal.5th 1048,
1075.)
Conceding he did not raise the issue below, defendant requests
that we consider the argument on the merits because: (1) he was
proceeding in pro. per. during the sentencing hearing; and (2) his prior
counsel filed a motion to strike his prior strike allegations under
Romero, supra, 13 Cal.4th 497.
Defendant’s election to represent himself during the sentencing
hearing does not excuse him from making timely requests where
required. (See People v. Barnum (2003) 29 Cal.4th 1210, 1221 [“a
principle deeply rooted in the law [is] that a ‘defendant who chooses to
represent himself assumes the responsibilities inherent in the role
which he has undertaken,’ and ‘is not entitled to special privileges not
given an attorney’”].) As amended by Senate Bill No. 1393, sections 667
and 1385 had been in effect for over 11 months before defendant was
sentenced. Whatever reason defendant may have had for the court to
consider striking either enhancement, he did not make any request.
The issue has therefore been forfeited.

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 Even considering the argument on the merits, defendant has not
demonstrated how the trial court’s sentencing decision was irrational or
arbitrary. In the absence of such showing, we presume the court
understood and correctly applied the law. (People v. Valenti (2016) 243
Cal.App.4th 1140, 1178–1179; People v. Brown (2007) 147 Cal.App.4th
1213, 1228–1229; People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 977–978.) We also note that the record suggests the court was
aware of its discretion under the amended law.7 Thus, on this record,
we cannot conclude that the court would have changed its sentencing
choices had defendant requested that the court exercise its discretion to
strike one or more of the five-year enhancements.
//
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7 Former defense counsel’s Romero motion stated that under the law as
amended by Senate Bill No. 1393, the trial court could “exercise its discretion
whether to strike or dismiss a prior serious felony conviction for sentencing
purposes.” (Citing Garcia, supra, 28 Cal.App.5th at p. 971; see ibid. [noting
that amended law pertains to the exercise of discretion “to dismiss or strike
the five-year consecutive term” imposed under section 667, subd. (a)].) It
appears defense counsel confused the scope of Senate Bill No. 1393, as the
motion requested only that the court strike the prior strike allegations under
Romero.

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 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.
We concur:

MANELLA, P. J.

CURREY, J.

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