Filed 5/9/22 P. v. Valdez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B317214
Plaintiff and Respondent, Kern County
Super. Ct. No. SF019418
v.
JAIME VALDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern
County, Craig Phillips, Judge. Affirmed, modified in part.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Senior Assistant
Attorney General, Catherine Chatman and Kevin L. Quade,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Jaime Valdez of
one count of assault with a deadly weapon and one count of
robbery. The trial court sentenced him to 63 years to life in state
prison. On appeal, he raises three arguments: (1) the trial court
abused its discretion in denying the defense’s request to sever
trial of the two charges; (2) the court abused its discretion in
denying his Romero1 motion; and (3) the minute order of
sentencing and abstract of judgment must be corrected to
accurately reflect his presentence conduct credit. We agree with
Valdez’s third contention and order the record corrected. In all
other respects, the judgment is affirmed.
PROCEDURAL BACKGROUND
The Kern County District Attorney filed an information
charging Valdez with assault with a deadly weapon (a knife)
(Pen. Code,2 § 245, subd. (a)(1); count one), robbery (§ 211; count
two), and misdemeanor resisting, delaying, or obstructing a peace
officer and/or emergency medical technician (§ 148, subd. (a)(1);
count three). With respect to count one, the information alleged
Valdez inflicted great bodily injury. (§ 12022.7, subd. (a).) With
respect to count two, it alleged he personally used a deadly or
dangerous weapon (a knife). (§ 12022, subd. (b)(1).) It additionally
alleged Valdez sustained the following prior convictions: (1) two
strike priors (§§ 667, subds. (a)-(e), 1170.12); (2) two serious
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
2 All further undesignated statutory references are to the
Penal Code.
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felony priors (§ 667, subd. (a)); and (3) five prison prior
convictions (§ 667.5, subd. (b)).
Valdez pled no contest to count three. A jury found him
guilty on the remaining counts. It found the personal infliction of
great bodily injury allegation attached to count one true, but
found not true the personal use of a deadly weapon allegation
attached to count two. In a bifurcated trial, the court found the
prior strike and serious felony allegations true.3
The court sentenced Valdez to 63 years to life in state
prison. On count one, the court imposed a term of 25 years to life,
plus a consecutive three-year term for the great bodily injury
enhancement, and two consecutive five-year terms for the prior
serious felony allegations. On count two, the court imposed a
consecutive term of 25 years to life, but exercised its discretion to
strike the prior serious felony enhancements. On count three, the
court imposed 180 days in county jail, deemed time served. The
court awarded Valdez 281 days custody credits, as well as 15
percent presentence conduct credits.4
Valdez timely appealed. On December 20, 2021, the
Supreme Court ordered the case transferred from the Fifth
Appellate District to the Second Appellate District.
3 The court found the prior prison term allegations not true
in light of the recent repeal of that enhancement.
4 As discussed in greater detail below, the court’s minute
order and abstract of judgment do not reflect the conduct credits
orally awarded.
3
FACTUAL BACKGROUND
A. Stabbing of Heriberto Marin Zuniga
Between 6:00 a.m. and 7:00 a.m. on December 4, 2018,
Heriberto Marin Zuniga (Marin) was sleeping in his van at a
homeless encampment near Lost Hills. As he was sleeping, he
heard the driver door open and suddenly felt two “blows” landing
on his body. These blows turned out to be stabs from a knife.
Marin looked up and saw his attacker, hunched over between the
van’s two front seats, holding a knife with a four-and-a-half to
five-inch blade. Marin immediately recognized Valdez as the man
stabbing him. Valdez stabbed him once near his left ribs and once
in the arm.
Valdez had spoken with Marin in his van earlier in the
morning before he stabbed him. Valdez asked Marin how he was
doing and if he lived in the van. He told Marin he felt sorry for
how he was living. Before this conversation and the subsequent
stabbing, Marin had encountered Valdez several times at the
store and in the street.
Valdez had a distinctive tattoo on the right side of his face,
which Marin recognized during the stabbing. Marin explained
that he had not noticed other details specific to Valdez because he
was not very awake, and was injured and afraid. For example, he
did not recall seeing any tattoos on Valdez’s hands.
After stabbing Marin, Valdez walked away from the scene.
Marin left the van and went to a neighbor for help. The neighbor
called 911, and an ambulance arrived to take Marin to a hospital.
Police later followed up with Marin. He described his
assailant as having a distinctive tattoo on the right side of his
face. He also told the police the attacker was a bit older, wore a
blue shirt, and wore a brown sweatshirt with a hood over his
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head.5 Although the police did not ask Marin about the attacker’s
facial hair, he recalled in court that the man had a chin beard
and moustache, consistent with Valdez’s facial hair. Police
showed Marin a photo lineup, and he identified Valdez as the
person who stabbed him.6 Marin told the police that Valdez had
accused Marin of robbing him several months prior to the
stabbing.
B. Robbery at Lalo’s Market
Around 7:00 a.m. on the same morning as Marin’s stabbing,
Eneida Luviano Garcia (Luviano) was checking the prior day’s
receipts at Lalo’s Carniceria, a store she owned and operated. She
saw Valdez pull up to the store in a dark blue car. Valdez walked
into the store and told Luviano he needed change. When Luviano
opened the register, Valdez grabbed her by the hair and neck,
pulled her close, demanded money, and stuck something pointy
into the side of her chest. She believed the pointy object was a
knife, though she was not able to see what it was. As soon as she
felt the pointy sensation in her chest, she fainted.
At the same time, Stephen Burt, a milk deliveryman, was
pulling up to Lalo’s. He noticed a green car with its driver’s side
door open. He walked into the store and saw Valdez leaning over
the counter. Valdez had money in his hands. When Valdez took a
5 It is unclear whether Marin’s recollection that the attacker
wore a blue shirt and brown sweatshirt was an inconsistent
description or whether the attacker wore both items of clothing
together.
6 Only two of the six men in the lineup had face tattoos, one
of whom was Valdez.
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step toward Burt, Burt stepped back and raised his hands.
Valdez fled out the door.
After Valdez left, Burt called out for Luviano. He found her
lying on the floor behind the counter and called 911. Luviano
later discovered that between $400 and $500 was missing from
the cash register.
When police arrived, Luviano described her attacker as
Hispanic, having a tattoo on his forehead, with no hair on his
head but “some scruff.” She recognized Valdez from prior
encounters earlier that year. In total, she had encountered him
more than 10 times over the 6 months leading up to the robbery.
Police showed her a photo lineup, and she identified Valdez as
the robber. The encampment where Marin lived was
approximately a five-minute drive (two miles) from Lalo’s.7
C. Valdez’s Resisting Arrest Charge
On December 7, 2018, Deputy Sheriff Aaron Mendez
located Valdez walking along Highway 46, approximately one
mile east of Interstate 5. Deputy Mendez got out of his vehicle to
detain Valdez, but Valdez walked into a field. Deputy Mendez
followed Valdez for about two miles, ordering him to stop, but
Valdez did not comply. Eventually Valdez was detained by other
deputies.
7 Burt likewise identified Valdez as the man he saw leaning
over the counter. Luviano acknowledged during cross-
examination that she had carpooled with Marin to court. She
testified that the two had not discussed any of the events of
December 4, 2018.
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DISCUSSION
I. The Trial Court Did Not Err in Denying the Defense’s
Motion to Sever
Valdez first contends the trial court abused its discretion
and violated principles of due process by denying the defense’s
request to sever trial of the assault and robbery charges. For the
reasons discussed below, we conclude the trial court did not err in
denying the defense’s motion to sever.
A. Relevant Proceedings
During motions in limine, Valdez’s attorney moved to sever
the two felony charges. Before hearing argument, the trial court
stated its tentative ruling was to deny the motion. The court
explained: “I don’t see that having these together shows any
problem in terms of prejudice to Mr. Valdez in either direction.
They’re both going to be ID type defenses. And I don’t see th[at]
one is going to spill onto the other for purposes of identifying
him[.]”
Defense counsel asked the court to reconsider its tentative
ruling. Counsel argued the identification evidence with respect to
one charge was stronger than the other. She expressed concern
that the jury would combine the identification evidence from both
charges. She also argued that trying two serious or violent
offenses, with two different victims, in the same case created a
risk that the jury would use the joined charges as evidence of
Valdez’s poor character.
In response, the prosecution argued the identity evidence
for both charges was strong, noting that both victims were able to
identify Valdez from a photo lineup. He further noted that section
954 articulates a preference for joinder of charges.
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The trial court stood by its tentative ruling. It explained:
“Well, when I made the ruling I hadn’t had an opportunity
to meet Mr. Valdez. [¶] Mr. Valdez, no offense, you got a
real distinctive tattoo over one eye, so the ID issue is not
one that is going to be very successful because of that
because you’re easily described. If you didn’t have that
tattoo, you know, bald guy, but when you got a tattoo on
your face like that the ID become somewhat simple,
describing somebody[’s] facial features is difficult. When
you got the tattoo it’s not . . . .”
Defense counsel responded that only two of the six
individuals in the photo lineup had face tattoos, and the other
individual’s face tattoo was dissimilar to Valdez’s. The court was
not persuaded, reemphasizing the distinctive nature of Valdez’s
tattoo:
“It becomes really a question of how distinctive . . . it is in
terms of picking somebody out and unfortunately for Mr.
Valdez it’s distinctive. So I don’t think it’s going to be
anything that the jury is going to want to lean one way or
the other, so I don’t find it’s a reason to severe [sic] it. It’s
not going to make that impact on the case, so based on that
I will stay with my position to deny to severe [sic].”
B. Applicable Legal Principles
Section 954 provides: “An accusatory pleading may
charge . . . two or more different offenses of the same class of
crimes or offenses, under separate counts, . . . provided, that the
court in which a case is triable, in the interests of justice and for
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good cause shown, may in its discretion order that the different
offenses or counts . . . be tried separately . . . .” Joinder is
preferred over severance because it promotes efficiency. (People v.
Westerfield (2019) 6 Cal.5th 632, 689 (Westerfield).) “Nonetheless,
a trial court has discretion to sever properly joined charges in the
interest of justice and for good cause. [Citations.]” (People v.
Simon (2016) 1 Cal.5th 98, 122.)
“‘When exercising its discretion, the court must balance the
potential prejudice of joinder against the state’s strong interest in
the efficiency of a joint trial.’ [Citation.]” (Westerfield, supra, 6
Cal.5th at p. 689.) “To successfully claim that the trial court
abused its discretion in denying a motion to sever, a ‘“‘defendant
must make a clear showing of prejudice’”‘ by demonstrating that
the denial ‘exceeded the bounds of reason.’ [Citation.]” (Ibid.) “An
appellate court evaluates such claims in light of the showings
made and the facts known by the trial court at the time of the
court’s ruling. [Citations.]” (People v. Merriman (2014) 60 Cal.4th
1, 37-38 (Merriman).) “‘“[A] party seeking severance must make a
stronger showing of potential prejudice than would be necessary
to exclude other-crimes evidence in a severed trial” . . .’
[Citations.]” (Westerfield, supra, 6 Cal.5th at p. 689, italics in
original.)
“‘In determining whether a trial court’s refusal to sever
charges [in a noncapital case] amounts to an abuse of discretion,
we consider [three] factors: (1) whether evidence of the crimes to
be jointly tried is cross-admissible; (2) whether some charges are
unusually likely to inflame the jury against the defendant; [and]
(3) whether a weak case has been joined with a stronger case so
that the spillover effect of aggregate evidence might alter the
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outcome of some or all of the charges . . . .’ [Citation.]”
(Westerfield, supra, 6 Cal.5th at p. 689.)
C. Analysis
Applying the above-stated principles, we conclude the trial
court’s denial of Valdez’s motion to sever was not an abuse of
discretion. It is true, as the parties agree, that the evidence of
each crime was not cross-admissible. And Valdez does not appear
to contend either of the charges was unusually likely to inflame
the jury. We therefore focus on the factor upon which the trial
court relied in denying the motion to sever – whether a weak case
was joined with a strong one for spillover effect.
Valdez contends the court abused its discretion based on
this spillover factor. The crux of Valdez’s claim is that Marin’s
identification of him (as the perpetrator of the assault) was much
weaker than Luviano and Burt’s identification of him (as the
perpetrator of the robbery). We are not persuaded. As the trial
court pointed out, Valdez’s face tattoo was highly distinctive and
recognizable. The court appropriately balanced the potential for
spillover against the statutory preference for joinder. The court
was within its discretion to conclude that Marin’s identification of
Valdez was likely to be strong, and thus would not be unfairly
bolstered by the evidence relating to the robbery.8
8 Additionally, as the Attorney General points out, much of
Valdez’s argument erroneously relies on testimony adduced at
trial but not brought to the trial court’s attention at the time of
the motion to sever. (See Merriman, supra, 60 Cal.4th at pp. 37-
38 [“An appellate court evaluates [ ] claims [that a trial court
abused its discretion in denying a motion to sever] in light of the
showings made and the facts known by the trial court at the time
of the court’s ruling. [Citations.]”].)
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It also bears noting that Marin easily identified Valdez as
the assailant at trial, not only based on his distinctive face tattoo,
but also based on multiple prior encounters, including one the
night before Valdez stabbed him. Luviano also recognized Valdez
from prior encounters. For these reasons, we conclude the
decision to try both offenses in a single trial did not prejudice
Valdez nor result in gross unfairness or violate due process. (See
Merriman, supra, 60 Cal.4th at p. 46 [even assuming the trial
court’s denial of a motion to sever is not an abuse of discretion,
reversal may still be required if joinder resulted in gross
unfairness in violation of due process].)
II. The Trial Court Did Not Abuse its Discretion in
Denying Valdez’s Romero Motion
Valdez next argues the court abused its discretion in
denying his Romero motion. Specifically, he argues the court
erred by only considering recidivism without balancing other
factors, resulting in a punishment that exceeded his culpability.
For the reasons discussed below, we conclude the trial court’s
ruling was within the bounds of its discretion.
A. Relevant Proceedings
Before sentencing, Valdez filed a motion to dismiss his
prior strike and serious felony convictions pursuant to section
1385 and Romero. The prosecution opposed Valdez’s motion.
In court, defense counsel argued although Valdez’s prior
convictions were serious felonies and strikes, neither offense was
significantly violent in nature. She highlighted that one of the
crimes involved taking a bicycle. The prosecution noted Valdez’s
2014 assault conviction was recent. It also explained the time
between Valdez’s 2004 robbery and 2014 assault included a
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lengthy prison term. The prosecution further emphasized that
Valdez’s prior convictions – a robbery and assault – were the
exact same crimes he stood convicted of again.
The trial court declined to exercise its discretion under
Romero, but struck Valdez’s prior serious felony enhancements
on count two. In denying Romero relief, the court emphasized
that Valdez had a substantial history of reoffending and
returning to custody once released. The court also noted the
severity of the robbery prior had less to do with the object taken
than the force used to take it.
B. Applicable Legal Principles
A trial court must make its decision to strike or not strike a
prior conviction by considering factors that are intrinsic to the
Three Strike law’s sentencing scheme. (People v. Williams (1998)
17 Cal.4th 148, 161 (Williams).) The factors a trial court must
consider include: (1) the nature and circumstances of the current
conviction; (2) the nature and circumstances of the prior strike
conviction; and (3) the defendant’s “background, character, and
prospects.” (Ibid.) If the defendant falls outside the spirit of the
Three Strikes law, the court may, in furtherance of justice, treat
the defendant “as though he had not previously been convicted of
one or more serious and/or violent felonies.” (Ibid.; see also
Romero, supra, 13 Cal.4th at pp. 529-530; § 1385, subd. (a).) We
review a trial court’s denial of a Romero motion for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374
(Carmony).) “[A] trial court does not abuse its discretion unless
its decision is so irrational or arbitrary that no reasonable person
could agree with it.” (Id. at p. 377.)
Effective January 1, 2019, Senate Bill No. 1393 amended
sections 667, subdivision (a) and 1385 to provide trial courts the
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discretion to strike five-year prior serious felony enhancements.
(People v. Jones (2019) 32 Cal.App.5th 267, 272.) We review a
trial court’s decision to strike or not strike prior serious felony
enhancements for abuse of discretion. (People v. Shaw (2020) 56
Cal.App.5th 582, 586.)
C. Analysis
We reject Valdez’s contention that the trial court abused its
discretion. The record does not suggest, as Valdez contends, that
the court was unaware of or disregarded relevant mitigating
factors in making its ruling. Rather, the record shows the court
appropriately balanced the relevant factors. The court concluded,
in light of Valdez’s background, character, and prospects, that he
fell within the spirit of the Three Strikes law based on the danger
that he would recidivate. (See Williams, supra, 17 Cal.4th at p.
161.) The court also noted that it found unpersuasive defense
counsel’s contention that the nature of Valdez’s prior robbery
conviction was a mitigating factor because the object taken was a
bicycle.
In addition to the trial court’s stated reasons for denying
the Romero motion, the record provides further support for the
conclusion that the court’s exercise of discretion was reasonable.
As the prosecution pointed out, Valdez’s prior strikes (robbery
and assault) were the same offenses as his current offenses. This
similarity supports the conclusion that the trial court’s concerns
about recidivism were warranted. Additionally, we note, as does
the Attorney General, that one of Valdez’s current offenses
involved a violent and unprovoked stabbing, a fact the trial court
could have reasonably relied on in denying the Romero motion.
To the extent Valdez suggests the trial court erred by not
explicitly discussing every potentially relevant factor in denying
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the Romero motion, we are not persuaded. “While a court must
explain its reasons for striking a prior (§ 1385, subd. (a); see
Romero, supra, 13 Cal.4th 497, 531), no similar requirement
applies when a court declines to strike a prior [citation].” (In re
Large (2007) 41 Cal.4th 538, 550.) “‘The absence of such a
requirement merely reflects the legislative presumption that a
court acts properly whenever it sentences a defendant in
accordance with the three strikes law.’ [Citation.]” (Ibid.)
For these reasons, we conclude the denial of the Romero
motion and the sentence ultimately imposed were not irrational
or arbitrary. (Carmony, supra, 33 Cal.4th at pp. 376-377.) We
therefore reject Valdez’s argument that the trial court abused its
discretion. (Ibid.)
III. Valdez’s Presentence Conduct Credits
Valdez lastly notes that the minute order of sentencing and
abstract of judgment must be corrected to reflect his presentence
conduct credits. The Attorney General agrees, and we agree with
the parties.
At the sentencing hearing, the trial court awarded Valdez
281 actual days of presentence custody credit. The court also
stated Valdez was entitled to 15 percent conduct credit under
section 2933.1. The court did not indicate a specific number of
days of conduct credit. The sentencing minute order and abstract
of judgment likewise do not reflect an amount of conduct credit. It
appears the trial court intended to give Valdez 42 days of conduct
credit. (See § 2933.1, subd. (c) [“maximum credit that may be
earned . . . shall not exceed 15 percent of the actual period of
confinement.”].)
The trial court is ordered to correct the sentencing hearing
minute order and abstract of judgment to reflect the number of
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days of conduct credit. (See People v. Gabriel (2010) 189
Cal.App.4th 1070, 1073 [“When there is a discrepancy between
the minute order and the oral pronouncement of judgment, the
oral pronouncement controls. [Citation.]”]; People v. Mitchell
(2001) 26 Cal.4th 181, 185 [courts may correct clerical errors any
time, and appellate courts are authorized to order correction of an
abstract of judgment that does not accurately reflect the sentence
imposed orally by the trial court].)
DISPOSITION
The trial court is ordered to correct the sentencing hearing
minute order and abstract of judgment to reflect the conduct
credits orally imposed. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
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