People v. Webb CA6

Filed 3/28/22 P. v. Webb CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H045312
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1642789)

v.

SCOTT WEBB,

Defendant and Appellant.

A jury convicted defendant Scott Webb of mayhem (Pen. Code, § 203),1 and
assault with a deadly weapon (§ 245, subd. (a)(1)) and found that he had personally used
a deadly weapon while committing the offenses (§ 12022, subd. (b)(1)), and that he had
personally inflicted great bodily injury in the commission of the assault with a deadly
weapon (§§ 12022.7, subd. (a), 1203, subd. (e)(3)). In a separate proceeding, the trial
court found that Webb had suffered two prior strike convictions (§§ 667, subds. (b)-(i);
1170.12), and a prior serious felony conviction (§ 667, subd. (a)).
On appeal, Webb asserts the trial court erred by restricting his expert’s testimony
on witness identification, denying his motion to suppress the victim’s in-court
identification, limiting defense counsel’s closing argument, refusing to give pinpoint jury
instructions on witness identification and the definition of mayhem, and failing to instruct
the jury on battery with serious bodily injury as a lesser included offense of simple

1
All further statutory references are to the Penal Code.
mayhem. Webb also asserts there was not substantial evidence to support his conviction
for mayhem, his New Mexico prior convictions do not qualify as strikes or serious
felonies under California law, and the matter must be remanded for resentencing under
Senate Bill No. 1393.
We agree that Webb is eligible for resentencing under Senate Bill No. 1393, and
otherwise reject Webb’s claims on appeal. We will remand the matter for the trial court
to exercise its discretion to strike the five-year serious felony enhancement under section
667, subdivision (a)(1). (Sen. Bill No. 1393, ch. 1013, §§ 1, 2.)
I. STATEMENT OF THE FACTS AND CASE
In April 2016, G. met a man in a parking lot near G.’s apartment in San Jose who
said his name was “Scotty” (Webb). Webb had a white four-door car with New Mexico
license plates. The two took Webb’s car to G.’s apartment where they smoked
methamphetamine. Webb told G. that he lived in his car and usually parked it in the
VTA parking lot near G.’s apartment. Webb had an ex-wife and son who lived nearby.
Webb offered to give G. a massage, during which G. fell asleep. When G. woke
up, his cell phone was missing, and Webb was gone. G. looked for Webb for about two
weeks and found him on May 7, 2016, sitting in his car in the VTA parking lot. G. went
to talk to Webb in his car, and Webb told him that he had taken G.’s phone by accident.
Webb asked G. if there was anyone in his apartment and if G. had any drugs. The two
went to G.’s apartment, and Webb asked him if he had a knife. G. and Webb started to
smoke methamphetamine.
G. agreed to let Webb give him a massage. Webb got on top of G., who was lying
face-down, and started to massage him. After a while, Webb told G. that he needed to
heat up the massage oil. Webb went into the kitchen, and G. could hear the microwave
running. Webb came back from the kitchen and poured the jar of oil on him. G. felt pain
in his arm; when he looked back, he saw Webb had stabbed him. Webb grabbed G.

2
around his throat and cut G.’s forehead. Eventually, G. ran out of his apartment and to
his neighbors’ residence for help.
G. had eight stab wounds to his left arm and face, stab wounds to his left chest,
back, right hand, and right ear, as well as damage to one of his lungs and a broken rib.
Dr. Jonathan Lee was the plastic surgeon who repaired G.’s ear injury. Dr. Lee said that
G.’s ear was almost completely transected, and the injury was severe and disfiguring.
While G. was at the hospital being treated for his injuries, he talked to a police
officer. G. reported to the officer that he had been stabbed by a man named “Scotty.” He
told the officer that Scotty was in his 30s to 40s, six feet tall, white and had tattoos on his
arms that went down to his elbows, as well as tattoos on his neck. G. also told the officer
that Scotty slept in a white four-door car in the VTA parking lot near his apartment.
During the investigation, police showed G. photographs of men in an attempt to
have G. identify his attacker. G. looked at two photo lineups without Webb’s picture and
did not identify any of the men as his attacker. Subsequently, G. looked at a photo lineup
with Webb’s picture and did not identify him as the attacker. Police showed G. two
pictures of Webb from his Facebook page, and G. did not identify him. G. looked at
another photo lineup that included Webb’s picture and he did not identify Webb. G. first
identified Webb as his attacker at the preliminary hearing held in October 2016, and later
at the trial.
In G.’s apartment, police found two knives on the floor of G.’s bedroom. One of
the knives was branded “Good Cook,” was bent, and had blood on the blade. The other
knife was branded “Forever Sharp.” This knife was not damaged and did not have blood
on the blade or handle. Only G.’s DNA was on the “Good Cook” knife, whereas Webb’s
DNA was found on the handle of the “Forever Sharp” knife.
Webb’s former sister-in-law, R., said that her sister and Webb had a son, and in
May 2016, Webb was homeless. R. said that her sister had been living very close to the
VTA station where Webb slept in his car.

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 Webb was arrested on June 24, 2016, as he was walking toward the driver’s side
of a white four-door car with New Mexico license plates in south San Jose. Webb was
six feet one inch tall, about 180 pounds, and had tattoos on his arms down to his elbows.
Webb was charged by information with aggravated mayhem—count 1 (§ 203),
and assault with a deadly weapon—count 2 (§ 245, subd. (a)(1)). The information also
alleged that Webb personally used a deadly weapon in the commission of both offenses
(§ 12022, subd. (b)(1)). Regarding count 2, the information alleged that Webb personally
inflicted great bodily injury. (§§ 12022.7, subd. (a), 1203, subd. (e)(3).) Finally, the
information alleged that Webb had suffered two prior strike convictions and a conviction
for a prior serious felony. (§§ 667, subd. (a), 667 subds. (b)-(i), 1170.12.)
Webb’s case proceeded to jury trial. Webb’s defense was that he did not commit
the crimes, and G. had falsely identified him. Webb offered Dr. Kathy Pezdek as an
expert in eyewitness identification. Over the objection of defense counsel, the trial court
limited Dr. Pezdek’s testimony to factors affecting the accuracy of eyewitness
identification. Dr. Pezdek testified regarding various issues relevant to the accuracy of
eyewitness identification. She stated that memory does not function “like a video
camera” and decreases over time. She described certain factors affecting memory,
including the amount of time someone is exposed to a person or event, lighting, and
suggestions after the event. Dr. Pezdek indicated that if a person is initially unsure of an
identification, but over time becomes more confident, the increase in certainty is an
indication that “there was confirming feedback along the way.” She stated that there is
no relationship between a witness’s confidence in his identification and the accuracy of
the identification.
Following the presentation of evidence, the trial court granted Webb’s section
1118.1 motion in part, finding there was insufficient evidence to support a conviction for
aggravated mayhem (§ 205). The prosecutor amended the information to charge simple
mayhem (§ 203) in count one, with the personal use of a knife (§ 12022, subd. (b)(1)).

4
 Webb was found guilty as charged, and all of the additional allegations in the
information were found true. In a bifurcated proceeding, the trial court found that Webb
had been convicted of two prior strikes (§§ 667, subds. (b)-(i); 1170.12) based on
evidence of his prior convictions from New Mexico for armed robbery and for
aggravated battery with a deadly weapon. The court also found he had been convicted of
a prior serious felony for the armed robbery (§ 667, subd. (a)) but found not true the
allegation that Webb had been convicted of a serious felony for aggravated battery as it
was not tried separately from the armed robbery conviction.
The trial court granted Webb’s Romero2 motion and dismissed one of his strike
convictions. Webb was sentenced to state prison for an aggregate term of 22 years
consisting of the following: eight years doubled to 16 years under section 667,
subdivision (e) for the mayhem conviction in count 1 (§ 203), plus one year consecutive
for the personal use of a deadly weapon in the commission of the crime (§ 12022, subd.
(b)(1)), and five years to be served consecutive under section 667, subdivision (c). The
court imposed four years doubled to eight years under section 667, subdivision (e) for the
assault with a deadly weapon conviction in count 2 (§ 245, subd. (a)(1)), three years for
inflicting great bodily injury (§ 12022.7, subd. (a)) and stayed one year for the personal
use of a deadly weapon (§ 12022, subd. (b)(1)). The sentence imposed for count 2 was
stayed pursuant to section 654.
Webb filed a timely notice of appeal.
II. DISCUSSION
A. Restriction of Defense Expert’s Testimony on Witness Identification
Webb first asserts that the trial court abused its discretion by limiting the expert
testimony of Dr. Pezdek regarding eyewitness identification more stringently than
required by the California Supreme Court in People v. McDonald (1984) 37 Cal.3d 351

2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

5
(McDonald) (overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896,
914). Specifically, he asserts that the trial court erred when it excluded the expert’s
testimony regarding the particular circumstances of G.’s identification of Webb as his
attacker, and her opinion that G.’s identification was unreliable. Webb argues the trial
court’s restriction of Dr. Pezdek’s testimony violated his rights to due process, a fair trial,
and his right to present a defense. Applying the abuse of discretion standard elucidated in
McDonald, we find no error. (Id. at p. 355.)
Dr. Pezdek was permitted to testify about the various factors relevant to the
accuracy of eyewitness testimony in general, including the witness’s familiarity with the
person identified, the amount of time the witness was exposed to the person, the witness’s
distance from the person and the lighting at the scene. Dr. Pezdek also testified about the
significance of same-race identification, post-event suggestion, and the inherent
suggestiveness of in-court identification. Over the objection of defense counsel, the trial
court excluded Dr. Pezdek’s opinion that G.’s failure to identify Webb as his attacker in
the first photographic lineup signified that Webb was not the perpetrator. Dr. Pezdek was
also not permitted to opine that G. had a good look at the perpetrator because the two had
been in close physical contact before the stabbing, the attack occurred in a well-lighted
apartment, the photographic lineup that was shown to G. on June 22, 2016 could have
suggestively influenced G., and G.’s identification of Webb at the preliminary hearing
and at trial was unreliable.
In McDonald, the California Supreme Court concluded that the trial court erred
when it excluded the defense expert’s testimony concerning the psychological factors that
can affect eyewitness identification. (McDonald, supra, 37 Cal.3d at p. 369.) Six
eyewitnesses identified the defendant as the perpetrator, and one witness unequivocally
said that the defendant was not the perpetrator. The defendant produced six alibi
witnesses who said he was out of the state when the crime occurred. (Id. at pp. 355-360.)
The defendant wanted to introduce testimony from an expert on eyewitness

6
identification; however, the trial court ruled that the proposed testimony was
inadmissible. (Id. at pp. 361-363.)
In finding that the trial court erred when it excluded the expert testimony offered
by the defendant, the Supreme Court reasoned that in certain cases, expert testimony
regarding the accuracy of eyewitness identification could be helpful because that
information might be beyond the common experience of jurors. (McDonald, supra, 37
Cal.3d at pp. 361-363.) The court noted that the accuracy of the eyewitnesses’ testimony
was critical to the prosecution and the proposed expert testimony could have assisted the
jury in resolving the uncertainty of the identifications. In addition, the veracity of the
eyewitness testimony was the basis of the defense. (Id. at pp. 373-376.) The court found
the trial court’s exclusion of the testimony was prejudicial to the defendant because there
was no other direct or circumstantial evidence linking the defendant to the crime, there
were weaknesses in the eyewitnesses’ testimony that the expert could have exposed, and
there were witnesses who provided the defendant an alibi. (Id. at p. 376.)
Webb relies on language in McDonald that “[t]he expert testimony in question
does not seek to take over the jury’s task of judging credibility: as explained above, it
does not tell the jury that any particular witness is or is not truthful or accurate in his
identification of the defendant. Rather, it informs the jury of certain factors that may
affect such an identification in a typical case; and to the extent that it may refer to the
particular circumstances of the identification before the jury, such testimony is limited to
explaining the potential effects of those circumstances on the powers of observation and
recollection of a typical eyewitness.” (McDonald, supra, 37 Cal.3d at pp. 370-371.)
From this he argues the trial court abused its discretion when it would not allow the
testimony of the expert applying the factors affecting the accuracy of eyewitness
identification to the particular circumstances of G.’s identification of Webb, asserting that
“McDonald only purports to prevent eyewitness experts from testifying ‘that any

7
particular witness is or is not truthful or accurate in his identification of the defendant.’
McDonald, 37 Cal.3d at 370.”
While we agree that McDonald does permit the admission of opinion evidence
referencing the particular circumstances of an identification, it does not compel the
introduction of such evidence or persuade us that the trial court erred by excluding the
expert’s testimony here. The McDonald court noted that the trial court has broad
discretion to admit or exclude expert testimony on witness identification, stating: “ ‘[W]e
do not intend to “open the gates” to a flood of expert evidence on the subject.’ ”
(McDonald, supra, 37 Cal.3d at p. 377.) The court further stated that “such evidence will
not often be needed, and in the usual case the appellate court will continue to defer to the
trial court’s discretion in this matter.” (Ibid., fn. omitted.)
In People v. Sanders (1995) 11 Cal.4th 475, 509 (Sanders), the Supreme Court
reaffirmed McDonald but found its facts distinguishable. Concluding that the trial court
had properly exercised its discretion to exclude the eyewitness identification expert
testimony, the court noted that there was incriminating circumstantial evidence
corroborating the eyewitnesses’ identifications, and that the eyewitnesses’ testimony in
Sanders was not the only evidence that the defendant had committed the crime.
(Sanders, supra, 11 Cal.4th at pp. 509-510.) The Sanders court further opined that if the
trial court did err in excluding the expert testimony, the error was harmless because the
eyewitnesses were cross-examined about the accuracy and reliability of their
identifications, defense counsel emphasized the factors that tended to undermine the
accuracy and reliability of the identifications in closing argument, the identifications were
corroborated, and the defendant offered no alibi. (Id. at p. 510.)
Finding this case similar to Sanders, we conclude that the trial court did not abuse
its discretion here. Further, the exclusion of a portion of Dr. Pezdek’s proffered
testimony did not violate Webb’s rights to due process or to present a defense. The trial
court did not wholly preclude Dr. Pezdek’s testimony as the trial court did in McDonald,

8
but allowed the expert to describe various factors that could influence the accuracy of
witness identification. Dr. Pezdek thus provided general information about eyewitness
identification that could have been beyond the jury’s common experience. (See
McDonald, supra, 37 Cal.3d at p. 369.) With the framework to critique the limitations of
eyewitness testimony that Dr. Pezdek provided, the jury was able to assess the accuracy
of G.’s identification of Webb. Defense counsel vigorously cross-examined G. about his
observation of his attacker and his ultimate identification of Webb as that person. This
cross-examination provided the jury with the opportunity to assess G.’s credibility,
informed as well by Dr. Pezdek’s testimony. Defense counsel also argued extensively
during closing argument that G.’s identification of Webb was the result of post-event
suggestibility. On this record, we determine that the court did not preclude Webb from
presenting and arguing his defense of mistaken identification.
Even assuming the trial court did err in excluding portions of Dr. Pezdek’s
testimony, we find the error would be harmless. As in Sanders, here, there was
incriminating evidence that Webb committed the attack. This evidence corroborated G.’s
identification of Webb and gave it independent reliability. (See Sanders, supra, 11
Cal.4th at pp. 509-510.) Specifically, G. described his attacker to the police as a person
named “Scotty,” who was a white male around six feet tall, with tattoos on his arms that
went only to his elbows. G. also told police that the attacker drove a four-door white car
with New Mexico license plates and had an ex-wife and son who lived not far from G.
This information was consistent with Webb’s name, his physical appearance, his tattoos,
the car he drove, and the location of Webb’s family members. While Webb’s DNA was
not found on the bloody and bent knife found in G.’s bedroom, his DNA was located on a
knife found on the bedroom floor adjacent to it, thus further corroborating G.’s testimony
that Webb was in his apartment. As in Sanders, Webb presented no alibi defense. Given
the additional evidence presented at trial indicating that Webb was the perpetrator of the
attack on G., we find it is not reasonably probable that Webb would have received a more

9
favorable verdict had the expert testimony not been limited. (People v. Watson (1956) 46
Cal.2d 818, 836-837 (Watson).)
B. Motion to Suppress Victim’s In-Court Identification
Webb next asserts the trial court erred when it denied his motion to exclude G.’s
in-court identification of him. He argues the identification was tainted because the police
showed G. impermissibly suggestive photographic lineups and single images of Webb
during the investigation.
An identification procedure is unfair if it “suggests in advance of identification by
the witness the identity of the person suspected by the police.” (People v. Slutts (1968)
259 Cal.App.2d 886, 891.) Admission of eyewitness identification evidence may violate
a defendant’s constitutional due process rights if the identification procedures were
“unnecessarily suggestive and conducive to irreparable mistaken identification . . . .”
(Stovall v. Denno (1967) 388 U.S. 293, 302.)
In People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 746 the
California Supreme Court reiterated the test from People v. Cunningham (2001) 25
Cal.4th 926 (Cunningham), to determine if the admission of identification evidence
violates due process. “ ‘[W]e consider (1) whether the identification procedure was
unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was
nevertheless reliable under the totality of the circumstances, taking into account such
factors as the opportunity of the witness to view the suspect at the time of the offense, the
witness’s degree of attention at the time of the offense, the accuracy of his or her prior
description of the suspect, the level of certainty demonstrated at the time of the
identification, and the lapse of time between the offense and the identification.’
[Citations.]” Citing People v. Lemcke (2021) 11 Cal.5th 644, 665 the Supreme Court
noted: “[t]here is [now] near unanimity in the empirical research that “ ‘ “under most
circumstances, witness confidence or certainty is not a good indicator of identification
accuracy.” ’ ” (Holmes, at p. 746.)

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 In determining whether an identification procedure is unduly suggestive, “[t]he
question is whether anything caused defendant to ‘stand out’ from the others in a way
that would suggest the witness should select him [or her].” (People v. Carpenter (1997)
15 Cal.4th 312, 367, abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th
1176.) “The defendant bears the burden of demonstrating the existence of an unreliable
identification procedure.” (Cunningham, supra, 25 Cal.4th at p. 989.) Whether an
identification procedure is “unduly suggestive” for due process purposes is a mixed
question of law and fact that we review de novo. (People v. Kennedy (2005) 36 Cal.4th
595, 608-609.) If the defendant fails to meet his or her initial burden of demonstrating
that the identification procedure was unduly suggestive, we “need not reach the question
‘whether the identification was nevertheless reliable under the totality of circumstances.’
[Citations and fn. omitted.]” (People v. Carter (2005) 36 Cal.4th 1114, 1164.)
Here, G. participated in a number of identification procedures with detectives
during the investigation. In May 2016, G. looked at two different photo lineups that did
not include Webb’s picture, and he did not identify any of the men as his attacker. In
June 2016, G. looked at a photo lineup that included Webb’s picture, and he did not
identify Webb as his attacker. G. was then shown two pictures of Webb from Webb’s
Facebook page and did not identify him. G. looked at another photo lineup that included
Webb’s picture and did not identify him as the attacker. Later on the same day, G. was
shown pictures of Webb’s tattoos and could not positively identify them. The day after
looking at the pictures of the tattoos, G. called Detective Palmer to say that he had
changed his mind about the tattoos and thought the man in the pictures might be his
attacker. G. positively identified Webb as his attacker at the preliminary hearing held in
October 2016, and later at the trial.
Webb asserts the identification procedures were unduly suggestive because G. was
shown photo displays that included Webb’s face several times before the in-court
identification, was shown individual photographs of Webb and his tattoos during the

11
investigation and saw Webb in jail clothing and shackles in a court proceeding prior to
the preliminary examination where G. first positively identified Webb. He asserts that
when law enforcement shows a single person photo of a suspect to a crime victim, the
individual in the photo is inevitably highlighted as the likely perpetrator of the offense.
Apart from the seriatim displays of the images that Webb alleges impermissibly
influenced G’s in-court identification, Webb does not identify any statements or actions
of the detectives showing the various images that suggested a positive identification of
Webb.
We do not find support in case authorities for Webb’s assertion that the in-court
identification was impermissibly tainted by his prior exposure to images. In People v.
Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa), the California Supreme Court held that the
use of a single-person photographic identification is not inherently unfair or
impermissibly suggestive. In addition, “[s]howing the witnesses a single photo of the
defendant is no more impermissibly suggestive than an in-court identification with the
defendant personally sitting at the defense counsel table in the courtroom.” (People v.
Yonko (1987) 196 Cal.App.3d 1005, 1008-1009.) “A single person photograph is
analogous to a single person showup that ‘may pose a danger of suggestiveness, but such
lineups or showups are not necessarily or inherently unfair.’ ” (People v. Chavez (2018)
22 Cal.App.5th 663, 674.) A single person showup procedure is considered unfair when
it is not neutral and unnecessarily suggests to the witness in advance the identity of the
person suspected by the police. (People v. Yeoman (2003) 31 Cal.4th 93, 123-124;
Ochoa, at pp. 412-413.) There is no due process violation if the challenged identification
procedure is not impermissibly suggestive. (Ochoa, at p. 412.)
We conclude the detective’s presentation of single pictures of Webb and his
tattoos in this case was not unduly suggestive. Before showing G. the individual images
of Webb, G. viewed two different photo lineups that did not include Webb and made no
identification of his assailant. After he was shown the Facebook page images of Webb,

12
G. was shown a lineup that included Webb, and made no identification of his assailant.
We do not agree that it follows that G. identified Webb at the preliminary examination
because he had previously seen photos of Webb. Further, there is nothing in the record
demonstrating that law enforcement did more than present the arrays of photos and the
individual images of Webb in a neutral way to G. Although G. saw a cumulation of
photos over time, there is no evidence that the police accompanied any of the photo
lineups or individual photos with statements or actions that indicated that Webb was G.’s
assailant. Nor do we perceive any constitutional violation simply because law
enforcement presents various photos at different times to a victim. We agree with the
trial court that Webb did not meet his burden of showing “any of the prior
identification[s] to be so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.”
However, even assuming the procedures were unduly suggestive, G.’s in-court
identification of Webb was reliable under the totality of circumstances. (Cunningham,
supra, 25 Cal.4th at p. 989.) Although the in-court identification occurred six months
after the attack, and was not fresh in time, the remaining factors as set forth in
Cunningham support a finding of reliability of that identification. Specifically, G. had a
significant opportunity to view Webb’s face when he saw him in the parking lot and
when the two were in G.’s apartment immediately prior to the attack. G. said that he saw
the attacker’s face just prior to being stabbed. After the attack, G. described the attacker
to the police as a white male who was about six feet tall, named “Scotty” with tattoos on
his arms and very rough hands. G. said that his attacker had an ex-wife and a son who
lived near his apartment, and he drove a white four-door car with New Mexico license
plates. These facts were consistent with Webb’s characteristics.
We thus conclude the trial court did not err in denying Webb’s motion to suppress
G.’s in-court identification. But even if the court did err, we find the error would be
harmless. As stated in Section A., ante, given the additional evidence presented at trial

13
that Webb was G.’s assailant, it is not reasonably probable that Webb would have
received a more favorable verdict had the trial court granted Webb’s motion to suppress
the in-court identification. (Watson, supra, 46 Cal.2d at pp. 836-837.)
C. Limitation of Defense Counsel’s Closing Argument
Webb argues the trial court’s denial of defense counsel’s request to argue to the
jury in closing that Webb did not confess to the crimes of which he was being charged
was prejudicial per se and requires reversal. When it ruled that defense counsel could not
argue that Webb did not confess to the attack on G., the trial court stated: “If there was
an interview and Mr. Webb did not confess in that interview, then that would be the state
of the evidence that the Defense could properly argue. The context of the situation,
however, is that there was an invocation of Mr. Webb’s Fifth Amendment right as he is
entitled to do so. And the officer respected that invocation, as the officer was required to.
Therefore, there was no opportunity for the officer to talk further. Under those
circumstances, the Court believes that the argument that there was no confession would
not be appropriate. The Defense is not precluded from arguing the lack of evidence in
this case. The ruling is only limited to pinpointing, among the lack of evidence,
pinpointing to the lack of a confession. So that will be the Court’s ruling.”
Webb cites In re William F. (1974) 11 Cal.3d 249, 253-256 (William F.), for the
proposition that a court’s limitation of closing argument is a violation of his
constitutional right to the assistance of counsel, due process, and to present a defense, and
is therefore prejudicial per se. In William F., the juvenile court precluded counsel for the
minor from presenting a closing argument at the conclusion of the jurisdictional hearing.
(Id. at p. 253.) The California Supreme Court found that the juvenile court’s refusal to
allow the minor’s counsel to present closing argument violated the minor’s constitutional
rights, was prejudicial per se, and reversed the judgment. (Id. at p. 255.) But we
conclude that Webb’s reliance on William F. is misplaced, because here, unlike in
William F., the trial court did not preclude defense counsel from presenting any closing

14
argument at all and did not prevent counsel from arguing about evidence presented at trial
that was relevant to the defense theory of mistaken identity. We see no basis for finding
a constitutional violation that resulted in per se prejudice.
We are also persuaded that the trial court has the responsibility to exercise its
discretion to prevent improper argument by the parties, including attempts to present
factually unsubstantiated contentions to a jury. (People v. Ponce (1996) 44 Cal.App.4th
1380, 1387-1389.) In exercising its discretion under section 1044, which allows the court
to control the process of a criminal trial, the court must be impartial and must assure that
a defendant is afforded a fair trial. When there is no patent abuse of discretion, a trial
court’s determinations under section 1044 must be upheld on appeal. (People v. Cline
(1998) 60 Cal.App.4th 1327, 1334.)
We determine the trial court did not abuse its discretion in prohibiting defense
counsel from arguing that Webb did not confess to the crimes. Webb asserted his right
against self-incrimination under the Fifth Amendment when the police attempted to
interview him, and as required by law, the police terminated their interview of him. The
fact that an abbreviated police interview took place was not in evidence. We agree with
the attorney general that defense counsel’s argument that Webb did not confess would
have improperly referenced the fact of the police interview which was not before the jury.
However, assuming the trial court’s limitation of defense counsel’s closing
argument was an abuse of discretion, we find the error would be harmless for the reasons
stated in Section A., ante. and conclude it is not reasonably probable that Webb would
have received a more favorable verdict had defense counsel been permitted to argue to
the jury that Webb did not confess to the crimes. (Watson, supra, 46 Cal.2d at pp. 836-
837.)
D. Pinpoint Instruction on Witness Identification
Webb next contends that the trial court erred when it denied Webb’s request to
provide a pinpoint jury instruction on witness identification. The proposed instruction

15
read: “You are instructed that the identity of the Defendant as the person who committed
the crime is an element of every crime. Therefore, the burden is on the State to prove
beyond a reasonable doubt not only that the crime alleged was committed, but also that
the Defendant was the one who committed it. You must be satisfied beyond a reasonable
doubt of the accuracy of the witness’[s] identification of the Defendant. In this regard,
you are instructed that it is not necessary for the Defendant to prove that another person
may have committed the crime nor is it the burden of the Defendant to prove his
innocence. If facts and circumstances have been introduced into evidence which raise a
reasonable doubt as to whether the Defendant was the person who committed the crime
charged, then you should find the Defendant not guilty of that offense.”
The trial court must instruct the jury on general principles “ ‘ “closely and openly
connected to the facts and that are necessary for the jury’s understanding of the case” ’ ”
including those instructions that “pinpoint” a defense theory. (People v. Hovarter (2008)
44 Cal.4th 983 (Hovarter).) Pinpoint instructions are not warranted, however, when they
are argumentative, such as when requested only to highlight particular evidence. (People
v. Hughes (2002) 27 Cal.4th 287, 361.) The court may decline to give a pinpoint
instruction if the proposed instruction is duplicative of other instructions given.
(Hovarter, at p. 1021.)

16
 Here, in refusing to give Webb’s proposed pinpoint instruction, the trial court
found that it was argumentative and duplicative of CALCRIM Nos. 3153 and 1054, which
adequately instructed the jury about what factors to consider in evaluating the strength of
a witness’s identification of a suspect, and the reliability of a witness’s testimony at trial.
We agree. Although it would have been within the trial court’s discretion to give the
proffered pinpoint instruction, CALCRIM Nos. 315 and 105, coupled with CALCRIM

3
The CALCRIM No. 315 instruction given in this case states: “You have heard
eyewitness testimony identifying the defendant. As with any other witness, you must
decide whether an eyewitness gave truthful and accurate testimony. In evaluating
identification testimony, consider the following questions: Did the witness know or have
contact with the defendant before the event? How well could the witness see the
perpetrator? What were the circumstances affecting the witness’s ability to observe, such
as lighting, weather conditions, obstructions, distance, and duration of observation? How
closely was the witness paying attention? Was the witness under stress when he or she
made the observation? Did the witness give a description and how does that description
compare to the defendant? How much time passed between the event and the time when
the witness identified the defendant? Was the witness asked to pick the perpetrator out of
a group? Did the witness ever fail to identify the defendant? Did the witness ever
change his or her mind about the identification? How certain was the witness when he or
she made an identification? Are the witness and the defendant of different races? Was
the witness able to identify the defendant in a photographic or physical lineup? Were
there any other circumstances affecting the witness’s ability to make an accurate
identification? The People have the burden of proving beyond a reasonable doubt that it
was the defendant who committed the crime. If the People have not met this burden, you
must find the defendant not guilty.”
4
The CALCRIM No. 105 instruction given in this case states: “In evaluating a
witness’s testimony, you may consider anything that reasonably tends to prove or
disprove the truth or accuracy of that testimony. Among the factors that you may
consider are: How well could the witness see, hear, or otherwise perceive the things
about which the witness testified? How well was the witness able to remember and
describe what happened? What was the witness’s behavior while testifying? Did the
witness understand the questions and answer them directly? Was the witness’s testimony
influenced by a factor such as bias or prejudice, a personal relationship with someone
involved in the case, or a personal interest is how the case is decided? What was the
witness’s attitude about the case or about testifying? Did the witness make a statement in
the past that is consistent or inconsistent with his or her testimony? How reasonable is
the testimony when you consider all the other evidence in the case? Did other evidence
prove or disprove any fact about which the witness testified?”

17
No. 103, which defines the standard for reasonable doubt, informed the jury that the
prosecution was required to prove that Webb was the person who committed the crimes
in this case. The given instructions also informed the jury of all of the applicable
considerations when evaluating a witness’s trial testimony and identification of a suspect.
The content of the pinpoint instruction was adequately conveyed to the jury through
CALCRIM Nos. 103, 105 and 315, and as a result, the trial court acted within the bounds
of its discretion when it concluded the instruction would have been duplicative. The trial
court did not err in denying Webb’s request to give the pinpoint instruction on witness
identification. (See Hovarter, supra, 44 Cal.4th at p. 1021.)
E. Instruction on Battery with Serious Bodily Injury as a Lesser Included
Offense of Simple Mayhem
Webb asserts the trial court had a sua sponte duty to instruct the jury on battery
with serious bodily injury5 as a lesser included offense of simple mayhem.
A trial court must instruct the jury sua sponte on a lesser included offense only if
there is substantial evidence, “ ‘that is, evidence that a reasonable jury could find
persuasive’ ” [citation], which, if accepted, “ ‘would absolve [the] defendant from guilt of
the greater offense’ [citation] but not the lesser.” ’ ” (People v. Licas (2007) 41 Cal.4th
362, 366 (Licas).) “ ‘[A] lesser offense is necessarily included in a greater offense if
either the statutory elements of the greater offense, or the facts actually alleged in the
accusatory pleading, include all the elements of the lesser offense, such that the greater
cannot be committed without also committing the lesser.’ ” (Id. at p. 366; see People v.
Hicks (2017) 4 Cal.5th 203, 208-209 (Hicks).) “If a lesser offense shares some common
elements with the greater offense, or if it arises out of the same criminal course of

5
Battery with serious bodily injury is battery that causes “a serious impairment of
physical condition, including, but not limited to, the following: loss of consciousness;
concussion; bone fracture; protracted loss or impairment of function of any bodily
member or organ; a wound requiring extensive suturing; and serious disfigurement.”
(§ 243, subd. (f)(4).)

18
conduct as the greater offense, but it has one or more elements that are not elements of
the greater offense as alleged, then it is a lesser related offense, not a necessarily included
offense.” (Hicks, at p. 209.) “ ‘We apply the independent or de novo standard of review
to the failure by the trial court to instruct on an assertedly lesser included offense.’ ”
(Licas, at p. 366.)
Here, the trial court granted Webb’s section 1118.1 motion, finding there was
insufficient evidence presented at trial to support a conviction of aggravated mayhem
(§ 205), as charged in count 1. However, the trial court commented that there was
“sufficient evidence for [simple] mayhem or battery with serious bodily injury.” In
response, the prosecutor moved to amend the information to allege simple mayhem in
count 1, which is defined in section 203 as follows: “[e]very person who unlawfully and
maliciously deprives a human being of a member of his body, or disables, disfigures, or
renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear,
or lip, is guilty of mayhem.”
Applying the principles described above under the de novo standard, we determine
that the trial court had no sua sponte duty instruct the jury on battery with serious bodily
injury as a lesser included offense to simply mayhem. Although courts have described
the terms “serious bodily injury” and “great bodily injury” as the same in certain
contexts, “the terms in fact ‘have separate and distinct statutory definitions.’ [Citation.]
This distinction may make a difference when evaluating jury instructions that provide
different definitions for the two terms.” (People v. Santana (2013) 56 Cal.4th 999, 1008-
1009; see People v. Poisson (2016) 246 Cal.App.4th 121, 125 [citing Santana and
rejecting the proposition that the terms great bodily injury and serious bodily injury
should be used “interchangeably”].) While great bodily injury is an element
of mayhem (People v. Brown (2001) 91 Cal.App.4th 256, 272.), serious bodily injury is
not. (Santana, at p. 1007.) Therefore, battery with serious bodily injury is not a lesser
included offense to mayhem, and the trial court had no duty to provide the jury with any

19
instruction related to that crime. The trial court had no sua sponte duty to instruct the
jury on battery with serious bodily injury.
F. Substantial Evidence to Support Mayhem Conviction
Webb asserts there is not sufficient evidence to support his mayhem conviction
because G.’s injuries do not fit within the definition of the crime as originally drafted in
the Coventry Act of 1670.
When a defendant challenges the sufficiency of evidence on appeal, “we review
the whole record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence—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. [Citations.] A reviewing court must reverse a conviction where the
record provides no discernible support for the verdict even when viewed in the light most
favorable to the judgment below. [Citation.] Nonetheless, it is the jury, not the
reviewing court, that must weigh the evidence, resolve conflicting inferences, and
determine whether the prosecution established guilt beyond a reasonable doubt.
[Citation.] And if the circumstances reasonably justify the trier of fact’s findings, the
reviewing court’s view that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant reversal of the judgment.” (People v. Hubbard (2016)
63 Cal.4th 378, 392.)
Penal Code section 203 defines simple mayhem as follows: ‘Every person who
unlawfully and maliciously deprives a human being of a member of his body, or disables,
disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits
the nose, ear, or lip, is guilty of mayhem.” Webb’s argument rests on the proposition that
the injury to G.’s ear does not qualify as a “slit” within the definition of the word in the
1670s when the crime of mayhem was first codified. Webb cites A Copious Dictionary
in Three Parts (1674), by Francis Gouldman, for the definition of “slit” as “to cleave or
rive,” meaning to “cut into pieces.” Webb asserts that the definition of “slit” extant when

20
the crime of mayhem was first drafted should apply to this case. Since G.’s ear was not
completely severed from his head, or cut into pieces, Webb argues his injury is not a
“slit,” and he cannot be convicted of the crime of mayhem.
In Santana, supra, the California Supreme Court considered the evolution of the
mayhem statute from its inception. The court stated: “[t]hough section 203 contains
‘verbal vestiges’ of the common law and the Coventry Act of 1670, ‘ “the modern
rationale of the crime may be said to be the preservation of the natural completeness and
normal appearance of the human face and body, and not, as originally, the preservation of
the sovereign’s right to the effective military assistance of his subjects.” ’ (People v.
Newble (1981) 120 Cal.App.3d 444, 451, 174 Cal.Rptr. 637; see [People v.] Keenan
[(1991)] 227 Cal.App.3d [26], 34, 277 Cal.Rptr. 687 [describing cases that ‘have
expanded mayhem to include acts not within the original definition of the crime’].) In
other words, section 203 ‘protects the integrity of the victim’s person.’ (People v.
Page (1980) 104 Cal.App.3d 569, 578, 163 Cal.Rptr. 839 (Page); see People v.
Green (1976) 59 Cal.App.3d 1, 3, 130 Cal.Rptr. 318; see also Keenan, supra, 227
Cal.App.3d at p. 34, 277 Cal.Rptr. 687 [recognizing cases as ‘practical and proper
applications of an old statute to modern-day reality’].)” (Santana, supra, 56 Cal.4th at
p. 1004.)
Consistent with the court’s reasoning in Santana, we conclude that the original
definition of “slit” from 1670, which would require the assailant to cut the victim’s ear
from the head or into pieces to commit the crime of mayhem, is too limited to capture the
meaning of the offense of mayhem today. The noun “slit” is currently defined in the
Merriam-Webster dictionary as “a long narrow opening.”6 The verb “slit” means to a: to

6
Definition of slit, noun, Merriam-Webster Dictionary https://www.merriam-
webster.com/dictionary/slit [as of March 25, 2022], archived at .

21
make a slit in; b: to cut off or away: SEVER; c: to form into a slit.” 7 These modern
definitions more accurately reflect the Santana court’s statement that section 203 is
designed to protect “ ‘the integrity of the victim’s person,’ ” and the normal appearance
and completeness of the person’s appearance. (Santana, supra, 56 Cal.4th at p. 1004.)
We thus find their use appropriate.
Applying the modern meaning of the word “slit,” we find there is substantial
evidence supporting Webb’s conviction for mayhem. When Webb attacked G. with the
knife, G.’s ear was almost completely transected and required surgical repair to reattach
it. According to the surgeon who treated him, G. sustained a “very disfiguring injury.”
There is no question that that G.’s ear was “slit” within the modern meaning of the word.
Reversal of Webb’s conviction is not warranted because his conduct “did not fall within
the ancient definition of mayhem.” (Keenan, supra, 227 Cal.App.3d at p. 34.) Sufficient
evidence supports Webb’s conviction for mayhem under section 203.
G. Pinpoint Instruction on Mayhem
Webb argues the trial court had a sua sponte duty to give a pinpoint instruction on
the legal definition of the word “slit,” because, according to Webb, it is not a word that is
commonly understood. Webb suggests that the court should have instructed the jury that
the word “slit” means to “cleave” or “rive” or “cut off or away” the ear.
The trial court has a sua sponte duty to instruct, including giving, amplifying or
clarifying instructions where the term used in an instruction has a “ ‘particular and
restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of
law [citation].” (People v. Chaffin (2009) 173 Cal.App.4th 1348, 1351.) There is no
duty to give a clarifying instruction if the term in the instruction has a plain and

7
Definition of slit, verb, Merriam-Webster Dictionary https://www.merriam-
webster.com/dictionary/slit [as of March 25, 2022], archived at .

22
unambiguous meaning that is “ ‘commonly understood by those familiar with the English
language . . . .’ ” (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872.)
Here, the trial court properly instructed the jury on the crime of mayhem using
CALCRIM No. 801 as follows: “The defendant is charged in Count 1 with mayhem in
violation of Penal Code section 203. [¶] To prove that the defendant is guilty of
mayhem, the People must prove that the defendant unlawfully and maliciously: [¶] Slit
someone’s ear. [¶] Someone acts maliciously when he or she intentionally does a
wrongful act or when he or she acts with the unlawful intent to annoy or injury someone
else. [¶] A disfiguring injury may be permanent even if it can be repaired by medical
procedures.”
As discussed in Section F., ante, we reject Webb’s contention that the definition of
“slit” from 1670 should apply to the contemporary crime of mayhem. We determine that
the trial court had no sua sponte duty to instruct on a specialized definition of “slit,” as
the word is commonly understood and needs no additional explanation.
H. Cumulative Error
Webb argues that the cumulative impact of the errors discussed above rendered the
trial fundamentally unfair. As we have rejected each of Webb’s individual challenges,
we find no basis for Webb’s separate claim of cumulative error. (People v.
Watkins (2012) 55 Cal.4th 999, 1036.)
I. New Mexico Prior Convictions as Strikes
The trial court found Webb had been convicted of armed robbery and aggravated
battery with a deadly weapon in New Mexico, and that these convictions qualified as
both strike offenses (§§ 667, subds. (b)-(i); 1170.12), and prior serious felony convictions
(§ 667, subd. (a)), that could be used to enhance Webb’s sentence. Webb contends that
there was insufficient evidence to sustain the sentence enhancements under section 667.
An out-of-state or foreign conviction may be found to be a strike offense in
California if the conviction “is for an offense that includes all of the elements of a

23
particular felony as defined in subdivision (c) of [s]ection 667.5 or subdivision (c) of
[s]ection 1192.7.” (§ 667, subd. (d)(2); see also § 1170.12, subd. (b)(2).) Thus, “[a]
defendant whose prior conviction was suffered in another jurisdiction is . . . subject to the
same punishment as a person previously convicted of an offense involving the same
conduct in California.” (People v. Myers (1993) 5 Cal.4th 1193, 1201 (Myers).)
To determine whether a prior conviction from another state contains all of the
elements of the California felony, the trier of fact may not look outside the record of
conviction. The court may consider any evidence in the record of conviction “if not
precluded by the rules of evidence or other statutory limitation.” (Myers, supra, 5 Cal.4th
at p. 1201.) If the record does not disclose any of the facts of the offense actually
committed, the court will presume the prior conviction was for the least offense
punishable under the law of that jurisdiction. (People v. Guerrero (1988) 44 Cal.3d 343,
355.)
1. Armed Robbery
The prosecution provided the record of conviction of the New Mexico priors.
These documents included the April 9, 2009 criminal information, the judgment, the plea
and disposition form, and two copies of CLETS printouts containing Webb’s criminal
record. The April 9, 2009 criminal information alleged in Count 1 that Webb committed
the crime of armed robbery as follows: “[O]n or about February 20, 2009, the above-
named defendant took papers and currency from Pete Casen by the use of force or threats
of force while armed with a knife, a second degree felony, contrary to Section 30-28-2
and Section 30-16-2, NMSA 1978.” In Count 2 it alleged that he committed
“Aggravated Battery (Deadly Weapon) . . . did touch or apply force to the person of Pete
Casen with a deadly weapon to wit; a knife . . . contrary to Section 30-3-5, NMSA,
1978.” In Count 3 Webb was charge with tampering and interference with
communications. The June 12, 2009 plea and disposition agreement stated that Webb
pleaded in count 1 to “[a]rmed [r]obbery, § 30-28-2 and § 30-16-2, NMSA 1978, a

24
second degree felony.” The plea agreement indicated that “[T]his agreement, unless
rejected or withdrawn, serves to amend the . . . information to charge the offense to which
the defendant pleads, without the filing of any additional pleading.” The August 3, 2009
judgment provided that Webb “was convicted on June 11, 2009, pursuant to a no contest
plea accepted by the court of the offense[] of Armed Robbery, a second degree felony,
contrary to § 30-16-02, NMSA 1978, occurring on or about February 20, 2009, as
charged in Count 1 of the Criminal Information[.]”
The parties disagree regarding what facts the record of conviction proves, and
what can lawfully be inferred from the record. Webb asserts that although he was
charged in the April 9, 2009 information with robbery “while armed with a knife,” that
information was amended by the terms of the June 12, 2009 plea agreement. As a result,
Webb argues that he pled to armed robbery without admitting that he possessed or used a
knife. Webb contends that as defined in New Mexico law, armed robbery without proof
or an admission of use of a knife does not share the same elements as robbery in
California, and thus the trial court erred in finding the New Mexico robbery prior to be a
serious felony or a strike offense.
The crime of armed robbery in New Mexico is defined as taking “anything of
value from the person of another or from the immediate control of another, by use or
threatened use of force or violence. [¶] Whoever commits a robbery is guilty of a third
degree felony. [¶] Whoever commits robbery while armed with a deadly weapon is, for
the first offense, guilty of a second degree felony and, for second and subsequent
offenses, is guilty of a first degree felony.” (N.M. Stat. Ann. § 30-16-2.)
Robbery in California is defined as “the felonious taking of personal property in
the possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (§ 211; see People v. Clark (2011) 52 Cal.4th
856, 944 (Clark).) The elements of robbery are (1) the defendant took property that was
not his or hers; (2) the property was taken from another person’s possession and

25
immediate presence; (3) the property was taken against the person’s will; (4) the
defendant used force or fear to take the property or to prevent the person from resisting;
and (5) when the defendant used force or fear to take the property, the defendant intended
to remove it from the owner’s possession for such an extended period of time the owner
would be deprived of a major portion of the value of the property. (Clark, at p. 943.)
Webb argues his robbery conviction from New Mexico does not qualify as a strike
in California unless it can be proved to have committed while armed with a knife,
because the force required to commit a robbery in New Mexico differs from that required
in California. In California, “it is established that something more is required than just
the quantum of force which is necessary to accomplish the mere seizing of the property.”
(People v. Morales (1975) 49 Cal.App.3d 134, 139.) Thus “[g]rabbing or snatching
property from the hand has often been held to be grand larceny, and not robbery.”
(People v. Church (1897) 116 Cal. 300, 303; citing State v. Clokey, 553 P.2d 1260 (N.M.
1976)), Webb asserts that a lesser amount of force is sufficient to support a robbery in
New Mexico, such that even if no resistance is offered by the victim of a purse snatch,
the force accompanying the snatching of the purse is sufficient to support a robbery
conviction.
We need not determine whether armed robbery as described in New Mexico is the
equivalent of robbery as defined under California law because we conclude that the
record demonstrates that Webb was armed with a knife when he committed the robbery.
Although Webb pled no contest to armed robbery as charged in the information, and the
information alleged that he took property “by the use of force or threats of force while
armed with a knife,” Webb argues the trial court could not infer that he pled to armed
robbery while armed with a knife. He points to the language in the plea form that states:
“this agreement, unless rejected or withdrawn, serves to amend the complaint, indictment,
or information to charge the offense to which the defendant pleads, without the filing of
any additional pleading.” (Emphasis added.) He asserts the judgment stating that Webb

26
“was convicted on June 11, 2009, pursuant to a no contest plea accepted and recorded by
the Court, of the offenses of Armed Robbery, a second degree felony . . . as charged in
Count 1 of the Criminal Information; [and] Aggravated Battery (Deadly Weapon), a third
degree felony . . . as charged in Count 2 of the Criminal Information,” did not refer back
to the original criminal information filed on April 1, 2009, but reflected instead the
“amended” information that allowed Webb to plead to armed robbery and aggravated
battery (deadly weapon) without reference to the specific information that Webb was
armed with a knife.
We do not agree. The reference to amending the information in the plea form
addressed the fact that the remaining charges from the information, which were
tampering with evidence and interference with communications, were dismissed. Webb
pleaded to armed robbery and aggravated battery (deadly weapon), which are the same
two charges alleged in counts 1 and 2 in the information. It is reasonable to infer that the
allegations from the information were incorporated in the plea because the judgment
states that Webb pleaded guilty to armed robbery “as charged in Count 1 of the Criminal
Information.” The plea in this case thus included the allegation that Webb stole papers
and currency from the victim by use of force or threats of force while armed with a knife.
Webb cites People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), for the
proposition that the trial court was prevented from considering the criminal information
in this case to conclude that he was armed with a knife when he committed the robbery.
In Gallardo, the trial court reviewed the preliminary hearing testimony of the victim of
an assault to conclude that the defendant was armed with a knife during the commission
of the crime. (Id. at p. 126.) The fact that the defendant was armed with a knife elevated
the assault to a serious felony and a strike that could serve as a prior to enhance the
defendant’s sentence. (Ibid.) Our Supreme Court concluded that it was improper for the
trial court to use the victim’s testimony at the preliminary hearing in finding that the
defendant was armed with a knife while committing the assault when the defendant did

27
not adopt the testimony as a factual basis for the guilty plea. (Id. at p. 136.) The trial
court was only permitted to consider the plea itself, and the defendant did not specify that
she used a knife when entering her guilty plea. (Ibid.)
Webb also cites People v. Strike (2020) 45 Cal.App.5th 143 (Strike), in which the
Fourth District Court of Appeal applied Gallardo, finding that the trial court “engaged in
impermissible judicial factfinding” by considering the factual allegations in the charging
document to find that the defendant committed the offense with another gang member,
making the crime a prior strike. (Id. at p. 153.) In Strike, the defendant pleaded guilty to
participating in a criminal street gang (§ 186.22, subd. (a)), which was reflected in his
change of plea form. However, the fact that he participated in the crime with another
gang member was not part of the plea form; rather, it was contained in the charging
documents. (Strike, at p. 153.) The change of plea form did not refer to the defendant’s
plea to the charge “as alleged.” (Ibid.) Therefore, the Strike court held it was improper
for the trial court to consider the allegations in the charging document. (Ibid.)
Webb’s reliance on both Gallardo and Strike is misplaced. In Gallardo, the
defendant’s guilty plea to assault contained no reference to the fact that she was armed
with a deadly weapon and did not adopt the testimony elicited at the preliminary hearing
as a factual basis of her guilty plea. As a result, there were no facts in the record of
conviction from which the trial court could conclude that Gallardo was armed with a
knife when she committed the assault. Similarly, in Strike, the defendant’s change of
plea form for his guilty plea made no reference to the defendant committing the crime
with a gang member nor did it refer to the defendant pleading guilty to the crime “as
alleged.” Therefore, there were no facts upon which the court could properly rely that the
defendant committed the crime with a gang member. Here, on the other hand, Webb’s
record of conviction includes facts from which to conclude that he was armed with a
knife when he committed armed robbery and aggravated battery. Webb pleaded no
contest to armed robbery and aggravated battery (deadly weapon), with a specific

28
reference to the allegations in the information that Webb was armed with a knife. It was
not improper for the trial court in this case to consider the criminal information because
Webb pleaded to the crimes “as charged in the criminal information.” The criminal
information provides the facts necessary to demonstrate that Webb was armed with a
knife during the commission of the crimes.
The armed robbery to which Webb pleaded no contest involved the taking of
property “by the use of force or threats of force while armed with a knife.” The fact that
the record of conviction establishes that Webb was armed with a knife when he
committed the robbery is sufficient to satisfy the requirements of robbery in California.
The New Mexico robbery conviction thus qualifies as a prior strike (§§ 667, subds. (b)-
(i); 1170.12), and a prior serious felony conviction (§ 667.5, subd. (a)).
2. Aggravated Battery
As with the New Mexico robbery conviction, Webb argues that his New Mexico
conviction for aggravated battery is not a California equivalent. We are not persuaded.
Webb pled no contest to aggravated battery (deadly weapon), which in New
Mexico is defined as: “A. Aggravated battery consists of the unlawful touching or
application of force to the person of another with intent to injure that person or another.
[¶] B. Whoever commits aggravated battery, inflicting an injury to the person which is
not likely to cause death or great bodily harm, but does cause painful temporary
disfigurement or temporary loss or impairment of the functions of any member or organ
of the body, is guilty of a misdemeanor. [¶] C. Whoever commits aggravated battery
inflicting great bodily harm or does so with a deadly weapon or does so in any manner
whereby great bodily harm or death can be inflicted is guilty of a third degree felony.”
(N.M. Stat. Ann. § 30-3-5.) Aggravated battery with a deadly weapon under New
Mexico law does not require serious bodily injury; rather, it only requires that a deadly
weapon be used. (Ibid.)

29
 The criminal information alleged that Webb committed the crime of aggravated
battery (deadly weapon) as follows: “[O]n or about February 20, 2009, [Webb] did touch
or apply force to the person of Pete Casen with a deadly weapon to wit; a knife, a third-
degree felony, contrary to Section 30-3-5, NMSA 1978.” The plea and disposition
agreement states that Webb pleaded no contest to “[c]ount 2: Aggravated Battery
(Deadly Weapon), § 30-3-5, NMSA 1978, a third-degree felony.” The judgment
provided that Webb “was convicted on June 11, 2009, pursuant to a no contest plea
accepted by the court of the offense[] of Aggravated Battery (Deadly Weapon), a third
degree felony, contrary to § 30-3-5 (C), NMSA 1978, as charged in Count 2 of the
Criminal Information[.]”
Simple battery in California is defined in section 242 as “any willful or unlawful
use of force or violence upon the person of another.” Felony battery is defined in section
243, subdivision (d) as “[w]hen a battery is committed against any person and serious
bodily injury is inflicted on that person . . . .” Assault with a deadly weapon under
California law is defined as follows: “an assault upon the person of another with a deadly
weapon . . . .” (§ 245, subd. (a)(1).) “Assault” is defined as “an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person of another.”
(§ 240.) Assault with a deadly weapon in violation of section 245 qualifies as a strike
because it is defined as a serious felony under section 1192.7, subd. (c)(31).
Aggravated battery in New Mexico requires that an actual battery must occur,
whereas assault with a deadly weapon in California requires only an attempted battery.
(N.M. Stat. Ann. § 30-3-5; §§ 245, subd. (a)(1); 240.) Therefore, because the New
Mexico statute requires more than the California statute, the New Mexico crime is
necessarily encompassed in the California crime. A violation of the New Mexico statute
for aggravated battery (deadly weapon) (N.M. Stat. Ann. § 30-3-5, subd. (C)), is also a
violation of the California statute for assault with a deadly weapon (§ 245, subd. (a)(1).)

30
 Webb pled no contest to aggravated battery (deadly weapon), as alleged in count 2
of the criminal information. The criminal information alleged that Webb committed
aggravated battery by applying force to the victim with a knife. This conduct by
definition qualifies as an assault with a deadly weapon pursuant to section 245, subd.
(a)(1), which is defined as “an assault upon the person of another with a
deadly weapon . . . .” (§ 245, subd. (a)(1).)
As we concluded regarding Webb’s armed robbery conviction, we are not
persuaded by his argument that the trial court could not consider the facts in the criminal
information when determining that he was armed with a knife during the commission of
the New Mexico crimes. The judgment reflects that Webb pled no contest to counts 1
and 2 as alleged in the criminal information. We do not agree that the original
information was amended by the plea form to remove the facts supporting the criminal
charges. Webb’s plea to aggravated battery (deadly weapon), included the admission that
he used force against the victim with a knife. Therefore, there is substantial evidence to
support the trial court’s conclusion that the conviction qualifies as a strike under sections
667, subdivisions. (b)-(i) and 1170.12.8
J. Remand for Resentencing Pursuant to Senate Bill No. 1393
At the time of Webb’s sentencing, the trial court was required to impose the five-
year enhancement under section 667, former subdivision (a)(1), based on Webb’s prior
serious felony conviction. However, effective January 1, 2019, section 667, subdivision
(a)(1), and section 1385 were amended to permit a trial court, in the furtherance of
justice, to strike or dismiss a five-year enhancement under section 667, subdivision
(a)(1). (Sen. Bill No. 1393, ch. 1013, §§ 1, 2.)

8
The trial court granted Webb’s Romero motion, and struck the prior aggravated
battery conviction for the purpose of sentencing. The trial court found the allegation that
the prior aggravated battery qualified as a prior serious felony pursuant to section 667,
subdivision (a) not true following the court trial.

31
 Webb argues his case should be remanded for the trial court to exercise its
discretion to strike his prior serious felony conviction enhancement. The parties agree
that the statutory amendments apply retroactively in this case. (People v. Garcia (2018)
28 Cal.App.5th 961, 971-973; People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425
(McDaniels).) The parties disagree as to whether remand for resentencing is required in
this case.
The Attorney General argues remand would be futile in this case because the trial
court’s sentencing decisions demonstrate that it would not have stricken Webb’s prior
serious felony conviction enhancement even if it had the discretion to do so. Specifically,
the trial court imposed the aggravated term for the mayhem and assault convictions,
noting that the crimes involved “great violence showing a high degree of cruelty,
viciousness, and callousness[.]” The Attorney General asserts the fact that the trial court
found the crimes to be violent, and imposed the aggravated term as a result, demonstrates
that remand for the trial court to exercise its discretion would be futile.
A defendant is entitled to “ ‘sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court,’ and a court that is unaware of its
discretionary authority cannot exercise its informed discretion. [Citation.] But if ‘ “the
record shows that the trial court would not have exercised its discretion even if it believed
it could do so, then remand would be an idle act and is not required.” ’ [Citation.]”
(McDaniels, supra, 22 Cal.App.5th at p. 420; see also, People v. Gutierrez (2014) 58
Cal.4th 1354, 1391; [if the record clearly indicates that the trial court would have reached
the same conclusion even if it had been aware that it had discretion, remand for
resentencing is not required].)
We are not persuaded the trial court’s sentencing decisions and findings in this
case unequivocally demonstrate that it will not exercise its newfound discretion to strike
the prior serious felony enhancement. “ ‘[W]hen the record shows that the trial court
proceeded with sentencing on the . . . assumption it lacked discretion, remand is

32
necessary so that the trial court may have the opportunity to exercise its sentencing
discretion at a new sentencing hearing. [Citations.]” (McDaniels, supra, 22 Cal.App.5th
at p. 420.)
At the time Webb was sentenced, the trial court lacked the discretion to strike or
stay the prior serious felony enhancement. Webb is entitled to be sentenced in the
exercise of informed discretion and remand is appropriate so that the trial court may
exercise its discretion in the first instance in light of the amendments to sections 667 and
1385. We express no opinion on how the trial court should exercise its discretion on
remand. (McDaniels, supra, 22 Cal.App.5th at p. 428.)
III. DISPOSITION
The judgment is reversed, and the matter is remanded for the sole purpose of
resentencing, and for the trial court to exercise its discretion whether to strike the five-
year serious felony enhancement under section 667, subdivision (a)(1). (Sen. Bill
No. 1393, ch. 1013, §§ 1, 2.)

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 _______________________________
Greenwood, P. J.

WE CONCUR:

_________________________________
Elia, J.

_______________________________________________
Bamattre-Manoukian, J.

People v. Webb
H045312