Filed 9/8/26 P. v. Forman CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE B340919
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA092627-01
v.
MARCUS BLAINE FORMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Reversed in part,
affirmed in part and remanded with directions.
Three Strikes Project, Stanford Law School, Milena N.
Blake for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Nicholas J. Webster and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
Defendant Marcus Blaine Forman appeals the denial of his
request for resentencing pursuant to Penal Code1 section 1172.1
and People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero). We affirm in part and reverse in part, and remand for
the trial court to enter a new order granting Forman’s Romero
motion in whole or in part to arrive at what the trial court
determines is a just sentence proportionate to Forman’s offenses,
personal background, and criminal history.2
BACKGROUND
I. Facts
This court previously summarized the relevant factual
background as follows: “On April 24, 2012, at approximately 9:30
p.m., Forman entered a Rite Aid store, approached an undercover
loss prevention officer and asked him where he was from. The
officer said he was from ‘nowhere.’ Forman said, ‘This is Insane
Crip Gang.’ He then walked to the liquor aisle, placed four
bottles of Absolut Vodka in his backpack, and left the store
without paying for them. [¶] Another loss prevention officer,
Anthony Ford, followed Forman. Ford identified himself as a loss
prevention officer and asked Forman to return to Rite Aid.
Forman said, ‘I don’t care.’ Ford continued to follow Forman.
Forman put his backpack down, took a fighting stance, and yelled
out his gang name. He then retrieved his backpack and ran
down the street. Ford continued after him. Forman put down
1 Undesignated statutory references are to the Penal Code.
2
Because we reverse the trial court’s denial of Forman’s
Romero motion and remand for resentencing, we need not reach
the merits of his Eighth Amendment argument.
2
the backpack and again assumed a fighting stance. Ford
attempted to pick up the backpack and Forman punched him in
the face, causing him to fall back. A car pulled up, Forman
jumped in, and he left.” (People v. Forman (Nov. 19, 2014,
B253016) [nonpub. opn.].)
II. Procedural History
On October 1, 2013, a jury convicted Forman of one count of
second degree robbery, in violation of section 211, and one count
of second degree burglary, in violation of section 459. The jury
also found true special allegations that both crimes were
committed to benefit a criminal street gang in violation of section
186.22, subdivision (b)(1).
Forman had previously sustained a juvenile adjudication
for robbery, a violation of section 211, when he was 17 years old,
and a conviction for attempted criminal threats, a violation of
section 664, when he was almost 23 years old. The trial court
found the two prior serious felonies strikes under California’s
Three Strikes law, found true the five-year prior violent felony
allegation based on the criminal threats conviction, and found
true three prior state prison terms.
The trial court sentenced Forman to state prison for an
aggregate term of 48 years to life in prison under California’s
“Three Strikes” law (§§ 667, subds. (b)-(j), 1170.12,
subds. (a)-(d)). On direct appeal in November 2014, we struck a
one-year prior prison term enhancement pursuant to section
667.5, subdivision (b)(1). (People v. Forman, supra, B253016.)
Forman’s sentence was later amended in 2019, when the
trial court struck the 10-year gang enhancements pursuant to
People v. Williams (2014) 227 Cal.App.4th 733, but left intact the
life sentence and remaining enhancements. The new sentence
3
was an aggregate term of 32 years to life, consisting of 25 years to
life for the second degree robbery; five years for the violent felony
conviction enhancement under section 667, subdivision (a)(1);
and two 1-year prior prison term enhancements under section
667.5, subdivision (b).
Forman again appealed, and we ordered the two remaining
one-year prior prison enhancements stricken. (People v. Forman
(July 1, 2020, B303556) [nonpub. opn.].) We remanded the case
to the trial court to decide whether to exercise its discretion to
strike the five-year enhancement pursuant to Senate Bill No.
1393 (2017–2018 Reg. Sess.), which amended sections 667 and
1385. (Ibid.) On September 22, 2020, the trial court resentenced
Forman, declining to strike the five-year serious felony
enhancement and not addressing the two remaining one-year
prior prison term as we had ordered. Neither Forman nor his
counsel was present at the proceeding.
On September 28, 2020, Forman filed a Request for Recall
of Sentence pursuant to former section 1170 (later renumbered
section 1172.1). On November 28, 2022, Forman filed a Petition
in Support of Recall of Sentence pursuant to section 1172.1. On
July 12, 2024, Forman filed another petition for relief, asking the
court upon resentencing to vacate one or more of his prior strike
convictions pursuant to section 1385 and Romero, supra,
13 Cal.4th 497; dismiss his five-year violent felony enhancement;
strike the two 1-year prior prison term enhancements as
previously ordered; and resentence him to a determinate term of
imprisonment.
4
Forman argued mitigating circumstances warranted a
reduction in sentence: the relatively minor nature of his
commitment offense; the fact that his two prior strikes were
committed when he was 17 and 23 years old and involved no
serious injuries or weapons; his history of substance abuse,
childhood trauma, homelessness, and foster care; and his
comprehensive re-entry plans that include wrap-around care and
housing. Forman included as an exhibit to his petition a report
by forensic psychologist Carl A. Bonacci, outlining Forman’s
significant childhood trauma and drug addiction.
On July 25, 2024, the trial court held a hearing to recall
Forman’s case for resentencing pursuant to section 1172.1. The
trial court immediately struck the two 1-year priors as a matter
of law. Forman argued the court should exercise its discretion to
strike the five-year prior serious felony enhancement imposed
pursuant to section 667, subdivision (a). He also argued that at
the time of resentencing, the two prior serious felonies were older
than five years; one of the priors was older than five years; and
one of the priors was committed while he was a juvenile. He then
argued that the court should exercise its discretion to determine
whether his background, prospects, or character take him
“partially or entirely outside the spirit of the Three-Strikes law,”
describing his childhood abuse, neglect, trauma, history of
addiction, and relative “lack of seriousness” of his juvenile
robbery conviction, which involved taking a cell phone and
subsequently returning it. Forman’s counsel argued the second
strike, a conviction for criminal threats, involved a “relatively
short prison sentence [which] indicates to me that it was not a
particularly serious offense.” Forman had received an eight-
month sentence in state prison doubled to 16 months for his prior
5
strike. Forman contended he could do well when properly
supported, and pointed to several good work reports and jobs he
maintained while incarcerated, completion of his GED
requirements, participation in an anti-recidivism class, as well as
the comprehensive reentry plan with the Amity Foundation that
he had in place.
The People argued Forman presented a public safety
concern due to his security score of 180, and the fact that
according to his prison C-file, between 2016 and 2020 he had
14 rule violations, three of which involved violence. The People
further contended Forman was an active gang member, and that
his current commitment offense for robbery occurred in 2012,
close in time to his second strike conviction for criminal threats
in 2011. The People then acknowledged they did not have an up-
to-date C-file record and therefore did not know whether any
further rules violations had occurred from 2020 up to the
resentencing hearing.
The court gave Forman a chance to respond. Forman
clarified that the classification score is “not necessarily an
indicator of current dangerousness” as it is easily ratcheted up,
and “very difficult” to bring down because a score can be reduced
by only 12 points per year. He argued that some of his rules
violations were positive drug tests for marijuana use. Forman
explained he was a gang member while he was a homeless
teenager, but that he had never been identified as a prison gang
member and he was unable to “debrief” from a street gang while
in prison.
6
In resentencing Forman, the court stated: “The court is
fully aware of its discretion to reduce the sentence pursuant to
the new laws and the Court of Appeals’ interpretations of those
laws. However, the court is choosing to exercise discretion and
not reduce his sentence any further for the following reasons: [¶]
It’s the defendant’s post-sentencing conduct which is the greatest
concern which the Court of Appeals said the court must consider
the most. His post-sentencing conduct while in the custody of the
Department of Corrections has been one of increasing violence.
[¶] In 2016 he had battery of a police—of a prisoner. He had
numerous rules violations and another battery in 2017 on a
prisoner and another battery on a prisoner in 2019. [¶] There is
no improvement here. There is no—if there was an early-on
battery on a prisoner and there was a reduction in severity of the
violations, that would be one thing. But there is no change at all.
For the record that we have[,] he’s been violent and that raises
legitimate concerns on the part of this court on whether he would
be a danger to society if he was released. And the court can only
conclude based on Mr. Forman’s performance that he continues to
be a danger to society. [¶] So for this reason[,] his total sentence
is reduced by the two years the court previously stated to 41
years to life. Any further reductions are denied.” (The court’s
oral description of Forman’s final sentence as 41 years to life was,
of course, incorrect, in light of the two previous appeals which
had reduced his sentence to 30 years to life.)
The court’s subsequent minute order recited the correct
sentence. The minute order stated no reason for the court’s
ruling, simply stating, “The Court exercises its discretion and
denies any further resentencing.”
Forman timely appealed.
7
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in
Declining to Strike the Five-Year Section 667,
Subdivision (a) Enhancement
Forman contends the trial court abused its discretion in
refusing to vacate his five-year prior serious felony enhancement
imposed under section 667, subdivision (a). (§ 1385 [sentencing
courts may strike prior strike convictions and may strike five-
year prior serious felony enhancements in furtherance of
justice].)
A. Applicable Law
Under section 1172.1, a trial court may recall and
resentence “at any time” upon the recommendation of the
Secretary of the Department of Corrections and Rehabilitation,
the Board of Parole Hearings, the district attorney of the county
in which the defendant was sentenced, or the Attorney General if
the Department of Justice originally prosecuted the case.
(§ 1172.1, subd. (a)(1).) Effective January 1, 2024, a trial court
may recall a sentence and resentence a defendant on its own
motion “at any time if the applicable sentencing laws at the time
of original sentencing are subsequently changed by new statutory
authority or case law.” (Ibid.; Assem. Bill No. 600 (2023–2024
Reg. Sess.).) Once a trial court decides to recall and resentence, it
may either reduce the sentence by modification or vacate the
conviction and impose judgment on “any necessarily included
lesser offense or lesser related offense, whether or not that
offense was charged in the original pleading.” (§ 1172.1,
subd. (a)(3).)
8
In resentencing the defendant “in the same manner as if
they had not previously been sentenced,” the resentencing court
“shall consider if the defendant has experienced psychological,
physical, or childhood trauma, including, but not limited to,
abuse, neglect, exploitation, or sexual violence, . . . and whether
those circumstances were a contributing factor in the commission
of the offense.” (§ 1172.1 subds. (a)(1), (5).)
Section 1385, subdivision (c)(1) provides “[n]otwithstanding
any other law, the court shall dismiss an enhancement if it is in
the furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute.” Section
1385, subdivision (c)(2) further provides: “In exercising its
discretion under this subdivision, the court shall consider and
afford great weight to evidence offered by the defendant to prove
that any of the mitigating circumstances in subparagraphs (A) to
(I) are present. Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety. ‘Endanger public
safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious
danger to others.” Accordingly, if the court finds that dismissal of
an enhancement “would endanger public safety,” then the court
need not consider the listed mitigating circumstances. (§ 1385,
subd. (c)(2); see People v. Mendoza (2023) 88 Cal.App.5th
287, 296.)
A court’s decision not to strike a prior serious felony
enhancement is reviewed for abuse of discretion. (People v. Shaw
(2020) 56 Cal.App.5th 582, 585 (Shaw).)
9
B. Analysis
Forman argues the trial court failed to correctly weigh the
factor that his sentence, with the felony enhancement, would
result in a sentence a decade longer than the statute states. (See
§ 1385, subd. (c)(2)(C) [“The application of an enhancement could
result in a sentence of over 20 years. In this instance the
enhancement shall be dismissed”].) He also contends the court
did not correctly consider that his commitment offense was
connected to prior childhood trauma and points to the
psychological report by Dr. Bonacci. (§ 1385, subd. (c)(2)(E) [“The
current offense is connected to . . . childhood trauma”].) Forman
then avers the court failed to weigh that the enhancement was
based on a prior serious felony conviction that is “over five years
old.” (Id., subd. (c)(2)(H).) We find no error.
In People v. Walker (2024) 16 Cal.5th 1024 (Walker), our
Supreme Court held that “absent a finding that dismissal would
endanger public safety, a court retains the discretion to impose or
dismiss enhancements provided that it assigns significant value
to the enumerated mitigating circumstances when they are
present. [Citation.] In other words, if the court does not find that
dismissal would endanger public safety, the presence of an
enumerated mitigating circumstance will generally result in the
dismissal of an enhancement unless the sentencing court finds
substantial, credible evidence of countervailing factors that ‘may
nonetheless neutralize even the great weight of the mitigating
circumstance, such that dismissal of the enhancement is not in
furtherance of justice.’ ” (Id. at p. 1029.) The court then stated
that in most cases, “ ‘if the trial court finds that dismissal of an
enhancement would endanger public safety, then it is hard to see
how dismissal would further the interests of justice,’
10
notwithstanding the applicability of any mitigating factors
identified in [section 1385,] subdivision (c)(2).” (Id. at p. 1033.)
Forman makes no argument to refute the trial court’s
finding that dismissing the five-year enhancement would
endanger public safety, a finding that essentially renders the
enhancement ineligible for dismissal. (See Walker, supra,
16 Cal.5th at p. 1033.) Instead, he argues only that the court
abused its discretion in failing to “correctly weigh” and consider
these mitigating factors in section 1385.
We find the trial court clearly explained its rationale for
declining to strike the five-year enhancement. It found dismissal
of the enhancement would pose a public safety risk based on
Forman’s “post-sentencing conduct” of “increasing violence,”
including rules violations for battery and the apparent lack of
reduction in the severity of his violations and violent behavior.
The trial court based its decision on the nature of the offense of
conviction and Forman’s post-conviction conduct. (People v.
Jefferson (2016) 1 Cal.App.5th 235, 242–243 [a trial court’s
exercise of discretion “ ‘ “must not be disturbed on appeal except
on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice” ’ ”]; Shaw, supra,
56 Cal.App.5th at p. 588 [no abuse of discretion when the trial
court refused to dismiss a five-year sentencing enhancement for a
25-year old prior serious felony conviction, finding “whatever the
nature of [defendant’s] past convictions, the trial court could have
reasonably determined that their frequency weighed against
striking the enhancement”].)
11
II. The Trial Court Failed to Properly Address Forman’s
Romero Motion
Forman next contends the court abused its discretion in
denying his request to dismiss a prior strike allegation pursuant
to Romero, supra, 13 Cal.4th 497. A trial court has discretion
under the Three Strikes law to dismiss or vacate prior conviction
allegations or findings in the furtherance of justice. (§ 1385,
subd. (a); Romero, at pp. 530–531.) In exercising its discretion,
the court may give “no weight whatsoever . . . to factors extrinsic
to the [Three Strikes] scheme.” (People v. Williams (1998)
17 Cal.4th 148, 161 (Williams).) Instead, “preponderant weight
must be accorded to factors intrinsic to the scheme, such the
nature and circumstances of the defendant’s present felonies and
the prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects.” (Ibid.)
In considering these intrinsic factors the court must determine
whether the defendant “may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though
he had not previously been convicted of one or more serious
and/or violent felonies.” (Ibid; People v. Garcia (1999) 20 Cal.4th
490, 498–499 (Garcia).) While the purpose of the Three Strikes
law was to ensure longer prison sentences, the “overarching
consideration” and “underlying purpose” in striking prior
conviction allegations is the avoidance of unjust sentences.
(Garcia, at p. 500.)
Abuse of discretion in failing to strike a prior conviction
occurs in limited circumstances: where the trial court is not
aware of its discretion; where the trial court considers
impermissible factors; or where applying the Three Strikes law
would produce an arbitrary, capricious, or patently absurd result
12
under the specific facts of a particular case. (People v. Carmony
(2004) 33 Cal.4th 367, 378 (Carmony).) A reviewing court’s
disagreement with the trial court’s weighing of proper factors (as
distinct from the trial court’s reliance on improper factors in the
weighing process) does not constitute an abuse of discretion. (Id.
at pp. 378–379; People v. Dryden (2021) 60 Cal.App.5th 1007,
1029 (Dryden).)
Forman argues the trial court abused its discretion by
failing to dismiss one or more of his prior strikes because (1) his
prior strike conviction for robbery was remote in time, did not
involve violence, and was committed when he was 17 years old;
(2) in the instant case Forman threw a punch at the security
guard who pursued him as he fled the store; he harmed no one in
the store during the offense nor was the security guard injured;
(3) had the court struck one or two of the prior strikes, he still
faced a significant sentence of over 20 years; (4) he participated
in significant rehabilitation while in custody and was committed
to participate in the Amity Foundation’s wrap-around care in a
locked re-entry program; and (5) most significantly, he fell
outside the spirit of the Three Strikes law because he had
endured a violent and sexually abusive upbringing with sex
workers and drug users present in the home, had been in foster
care, was homeless as a young child and teenager while his
mother was incarcerated, and had a long history of alcoholism
and drug addiction, all of which contributed to his criminal
conduct. The psychological report appended to Forman’s petition
amply supports the stated history and diagnoses.
13
We conclude from this record that the trial court failed to
balance the appropriate factors set forth in Williams, that is,
Forman’s personal background, character, and prospects, and the
specifics of his criminal history, the characteristics of the present
offense for which he was being resentenced, or if a shorter
sentence would accommodate risks to public safety. (Williams,
supra, 17 Cal.4th at pp. 161–163; Garcia, supra, 20 Cal.4th at
pp. 499–501 [consideration of lengthy non-Three Strikes sentence
does not eviscerate the purpose of the Three Strikes law].) The
court’s minute order states no rationale for its ruling. The court’s
oral remarks reflect no balancing. The court focused on one
factor to the exclusion of all others—danger to public safety—and
found that Forman posed a danger to the community based on a
prison record that excluded the most recent four of his 10 years of
incarceration. While this singularly focused analysis on public
safety satisfied the resentencing requirements for five-year
enhancements as set out in Walker, this was not the nuanced
analysis contemplated and required by the Supreme Court in
Romero and Williams.
Apart from the trial court’s singular focus on danger to the
community and failure to balance the Williams factors, its failure
to strike one or more of Forman’s prior strike convictions resulted
in a patently absurd result under the specific facts of this case.
(See Carmony, supra, 33 Cal.4th at p. 378.) Forman’s
commitment offense and circumstances are very similar to those
in Dryden, where the Court of Appeal found the trial court’s
refusal to strike any of the defendant’s prior strikes resulted in a
sentence dramatically disproportionate to the severity of the
present offense. (Dryden, supra, 60 Cal.App.5th at
pp. 1031-1032.)
14
Like Dryden, Forman was convicted of two prior serious
felonies (Dryden actually had three prior strikes). At age 17,
Forman committed a robbery where he stole and subsequently
returned a cell phone with no injuries. At age 23, he was
convicted of attempted criminal threats, again with no serious
injuries. Significantly, courts have reversed the denial of
dismissal of prior strikes in instances where the prior strikes
were far more serious than Forman’s. (See, e.g., People v. Avila
(2020) 57 Cal.App.5th 1134, 1140–1141 (Avila) [defendant’s three
previous strikes were two robberies and assault with a knife].)
Like Dryden, the commitment offense here resulted in
minor injuries. Forman likely did not contemplate violence when
he shoplifted the four bottles of vodka as he carried no weapons
when he entered the store and initially ran away from the first
security guard before he turned around and threw a punch at the
second security guard pursuing him. The spontaneity and
unarmed nature of the violence in Forman’s offense mirrors that
of Dryden’s altercation, which occurred sui generis, mushrooming
from back and forth drunken name calling and shouted threats
and obscenities to a physical altercation. (Dryden, supra,
60 Cal.App.5th at pp. 1013–1015.)
Finally, as the court likewise noted in Dryden, and as Dr.
Bonacci opined, defendant’s past homelessness, addiction, and
childhood trauma likely “ ‘contributed to his actions.’ ” (Dryden,
supra, 60 Cal.App.5th at p. 1031; Avila, supra, 57 Cal.App.5th at
p. 1145 [defendant’s criminal conduct “appears to be related to
his drug addiction rather than to sinister motives and falls well
outside the realm of what could be considered the work of a
career criminal”].)
15
The record reflects that despite Forman’s checkered
disciplinary history during the first six years of his incarceration,
he worked to rehabilitate and was praised for his “positive
attitude and contribution” to the substance abuse recovery and
anti-recidivism classes through the Anti-Recidivism Coalition.
Forman completed courses on criminal addictive thinking, anger
management, and reentry preparation. In 2019, he was
recognized for his rehabilitative achievement with an award for
“ ‘participation in approved group or individual activities which
promote the educational, behavioral, or rehabilitative
development of an inmate.’ ” He also completed the requirements
for a GED.
We do not overlook the significance of Forman’s prior
criminal history, but we conclude that besides the trial court’s
singular and therefore misguided focus on public safety, it abused
its discretion under the principles of proportionality set out in
Romero. Indeed we invoke the comments of the Dryden court,
which we find apt: “A trial court’s sentencing discretion is very
broad, and rightly so. Among other considerations, as a
reviewing court we are not able to observe the demeanor of
defendants or witnesses, and we therefore do not substitute our
discretion for that of the trial court. Notwithstanding its broad
discretion and our deferential standard of review, a trial court’s
ruling on a Romero motion remains reviewable. The sentence of
25 years to life consecutive to 15 years imposed here presented
that rare instance of an absurd result under the Three Strikes
law that goes beyond mere disagreement with the trial court’s
decision. We will therefore reverse and remand for
reconsideration.” (Dryden, supra, 60 Cal.App.5th at p. 1031.)
16
Some may question how we can affirm the trial court’s
finding that Forman poses a danger to the community yet find
the trial court erred in imposing a Three Strikes sentence on
Forman. We see no incongruity. Balanced proportionality is the
key in analyzing a request to strike under Romero. It is one
thing to find it appropriate for Forman to remain in custody for
an additional five years because he still poses a danger to the
community. With that finding, the trial court is not required to
balance any other factors. (Walker, supra, 16 Cal.5th 1029–
1030.) However, it is quite another to label Forman a career
criminal deserving of a 25-to-life sentence for the petty theft that
occurred here, without balancing the equation, as required by
Romero and Williams, by considering his personal history of
trauma and abuse and efforts at rehabilitation. A Three Strikes
sentence of 25 years-to-life for stealing four bottles of vodka and
throwing a punch at a pursuing store guard is a patently absurd
and disproportionate result. (Carmony, supra, 33 Cal.4th at p.
378[arbitrary, capricious or absurd sentences are properly
reviewed for abuse of discretion].)
17
DISPOSITION
The judgment is reversed in part and affirmed in part. The
matter is remanded to the trial court to enter a new order
granting Forman’s Romero motion in whole or in part, and to
impose a sentence proportionate to Forman’s offenses, criminal
history, prospects, and background. The trial court shall enter an
amended judgment and transmit a new abstract of judgment to
the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
SCHERB, J.
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