Filed 8/20/26 P. v. Hunter CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B344348
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA057774)
v.
DAMIAN JAMAL HUNTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lisa M. Strassner, Judge. Affirmed as modified.
Phillip A. Talbert, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan
Ivri and David A. Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
In 2025, the trial court recalled defendant Damian Jamal Hunter’s
sentence pursuant to Penal Code section 1172.75,1 struck three one-year
prior prison term enhancements (§ 667.5, sub. (b)) and a five-year serious
felony enhancement (§ 667, subd. (a)) and resentenced him to 25 years to life.
On appeal, defendant contends the trial court abused its discretion in
denying his motion under section 1385, subdivision (a) and People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 (Romero) to dismiss a prior strike
conviction (§§ 667, subds. (b)-(i), 1170.12). Defendant also contends he is
entitled to have his abstract of judgment modified to vacate the restitution
fine pursuant to section 1465.9, subdivision (d). While we disagree with
defendant’s alleged resentencing error, we agree with defendant’s contention
that his restitution fine must be vacated. Therefore, we affirm the judgment
as modified.
FACTUAL BACKGROUND2
On October 24, 2012, at approximately 8:00 p.m., a delivery driver for
Rigatoni’s Pizza (the victim), made a delivery to an apartment complex. The
items delivered were pizza, chicken wings, and two liters of coke. When he
arrived, the victim saw a woman waiting for him outside and a man standing
behind a truck in the driveway. The victim removed the food from his vehicle
1 All further statutory references are to the Penal Code, unless otherwise
stated.
2 We draw these facts from defendant’s prior appeal. (People v. Hunter
(May 24, 2016, B263599) [nonpub. opn.].)
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and handed the receipt to the woman. As he waited for her to pay, the man
walked up to him, placed what the victim thought was a gun to his stomach,
pushed him against his delivery vehicle, and said, “[G]ive me all your money,
mother fucker.” The victim gave the man all the money he had in his
pockets. The man took the money and food and walked away.
The victim returned to his vehicle and drove away. He found a sheriff's
vehicle several blocks away, stopped, and reported the robbery. The deputy
responded to the apartment complex. In an apartment rented by Robin
Castro, the deputy found chicken wings on the table, pizza in a plastic bag in
the oven, and a red hooded sweatshirt in a hall closet.
Later that evening, another sheriff’s deputy brought the victim back to
the apartment complex for a field line-up. The victim sat in the back of a
sheriff’s vehicle while officers shined a spotlight on each of four
individuals who were found in Castro’s apartment. Defendant was one of the
four. The victim was unable to identify anyone in the lineup as the robber.
Detective Donnel testified at trial that after the field line-up, the victim told
him that defendant “appeared to be too tall because he believed the person
that robbed him was about the same height as him or slightly shorter than
him.”
At trial, the victim described the robber as a Black man who wore a red
zip-up hooded sweatshirt. The victim was shown an exhibit of the red hooded
sweatshirt found in Castro’s apartment and identified it as the sweatshirt the
robber was wearing. When asked by the prosecutor if anyone in the
courtroom matched the description of the robber, the victim identified
defendant, stating, “He looks like the guy. I mean, I can’t say for sure. It
was over a year ago but it looks like him.” When asked how sure he was, the
victim testified that he was approximately 80 percent sure. On cross-
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examination, the victim acknowledged that it was fair to say his memory of
events directly after the robbery was better than it was on the day of trial,
which was 14 months later.
The prosecution called Castro as a witness. The parties stipulated that
the order called into Rigatoni’s Pizza was placed on Castro’s phone. She
testified that she did not know defendant. The prosecution then introduced
her prior testimony from the preliminary hearing. She identified defendant,
testifying that he was at her apartment the night of the robbery and left her
apartment around eight in the evening, wearing the red hooded sweatshirt
that was later found in her closet. She also testified that defendant borrowed
her phone before leaving the apartment and returned approximately 45
minutes later with the food order in a grocery bag. When he returned, he was
no longer wearing the red hooded sweatshirt.
The prosecution also called Danyelle Bates as a witness. Bates was
convicted for her involvement in the robbery and at the time of trial was
serving her sentence. In response to the prosecution’s question whether she
recalled seeing defendant at Castro’s apartment the night of the robbery, she
testified that she did not. The prosecution then introduced her prior
statements made in an interview with Detective Donnel. During a recorded
interview, she told the detective that she was with defendant at Castro’s
apartment on the night of the robbery. She also said she was the one who
called in the order and that she and defendant brought the food back to
Castro’s apartment. After the recording of the interview was played for the
jury, Bates testified she lied in her interview out of spite because the
detective told her that defendant blamed her for the robbery. She then
testified she committed the robbery by herself.
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PROCEDURAL HISTORY
In 2015, a jury found defendant guilty of second-degree robbery (§ 211)
but found not true a personal firearm use allegation (§ 12022.53). In a
bifurcated proceeding, the trial court found true allegations that defendant
had two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)),
two prior serious felony convictions (§ 667, subd. (a)) and three prior prison
terms (§ 667.5, subd. (b)). The court denied defense counsel’s Romero motion,
finding that defendant “falls squarely within the spirit of the Three Strikes
law.” The court sentenced defendant to a total of 38 years to life in state
prison, consisting of 25 years to life under the Three Strikes law, plus two
five-year terms for the serious felony enhancements, and three one-year
terms for the prior prison term enhancements. The court ordered defendant
to pay, among other fines and fees, a $10,000 restitution fine pursuant to
section 1202.4, subdivision (b).
This court, comprised of a different panel, ordered one of the two five-
year serious felony enhancements stricken but otherwise affirmed the
judgment. On remand, the trial court struck one of the five-year serious
felony enhancements, which reduced defendant’s sentence to 33 years to life
in state prison.
The California Department of Corrections and Rehabilitation
subsequently identified defendant as an individual who might qualify for
relief under section 1172.75. On January 25, 2024, the trial court verified
defendant’s current judgment included prior prison term enhancements
pursuant to section 667.5, subdivision (d), and recalled his sentence. Counsel
was reappointed for defendant. Defendant filed a resentencing brief
requesting that the court strike one prior strike conviction and the remaining
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five-year serious felony enhancement. In addition, he requested the court
dismiss the three one-year prior prison term enhancements. Defendant noted
that his two prior strike convictions were for manslaughter and robbery, and
both offenses were from the same incident in 1994 when defendant was 16
years old. He further noted that he was not the actual shooter in that
incident.
On February 25, 2025, the trial court held a resentencing hearing. At
the outset, the court stated that it reviewed defendant’s resentencing brief
and his prison “C file.” The court stated that defendant’s placement scores in
prison have “fluctuated” since he was placed in custody in 2015. The court
also stated defendant’s prison record included participation in a riot in 2017,
willfully resisting a peace officer in 2018, and fighting with another inmate in
2023. However, the court noted that defendant’s rules violations were minor
and that was mitigating. The court commended defendant on his personal
growth programming, which included obtaining his GED while incarcerated.
The court then stated defendant had been convicted of robbery with a
gun in 2015 and had two prior strikes consisting of manslaughter and
robbery from an incident in 1994 when he was only 16 years old. The court
highlighted defendant’s sophistication in the 1994 case, which was a robbery
of a jewelry store. The court explained defendant attempted to create a
homemade silencer for the firearm using a potato and duct tape. The court
also stated that defendant’s subsequent record included gun possession in
2003 and receiving stolen property in 2010, in addition to the crime in the
instant case. The court noted that it considered the nature and
circumstances of defendant’s current crime, his prior convictions and record,
and the particulars of his background, character, and prospects, as well as
danger to public safety.
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Defense counsel interjected that the court mentioned “several times”
that the current offense was a robbery with a gun, but the jury found the
firearm allegation not true. The court acknowledged its mistake and stated
that “while that is mitigation,” defendant’s behavior in the 1994 robbery
involving a gun was concerning because, even if he was a minor, he was
talking about building a silencer for the firearm that was ultimately used by
the shooter. Furthermore, after serving time for those crimes, defendant was
later convicted of gun possession, another theft-related offense, and then
committed the instant robbery. The court described the robbery as a “crime
of opportunity” and stated that defendant “certainly didn’t learn from
whatever took place from 1994 to 2015.” The court clarified that the lack of a
true finding on the firearm allegation “doesn’t change my position under a
[section] 1385 analysis in balancing mitigation and aggravation.”
The court ultimately found sufficient mitigation to dismiss the five-year
serious felony enhancement in addition to dismissing the three one-year prior
prison term enhancements. However, the court declined to dismiss a prior
strike conviction. The court resentenced defendant to 25 years to life under
the Three Strikes law.
Defendant timely appealed.
DISCUSSION
I. The Romero Motion
Defendant argues that the trial court abused its discretion in denying
his motion to dismiss his strike conviction under section 1385, subdivision
(a), and Romero. We conclude the record does not support this contention.
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Section 1385, subdivision (a), gives a trial court the discretion to
dismiss an “action” in the furtherance of justice. Under that section, a court
may grant a defendant’s motion to strike prior felony conviction allegations
brought under the “Three Strikes” law. (Romero, supra, 13 Cal.4th at pp.
529–530.) In assessing a Romero motion, the court “must consider whether,
in light of the nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review the denial of a Romero motion for abuse of discretion.
(People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) “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
under the specific facts of a particular case.” (People v. Dryden (2021) 60
Cal.App.5th 1007, 1029.) Only in “extraordinary” cases does the trial court’s
failure to strike a prior conviction constitute an abuse of discretion.
(Carmony, supra, at p. 378.)
Here, the trial court had before it ample evidence that defendant was
precisely the type of criminal for whom the Three Strikes law was enacted.
(See People v. Gaston (1999) 74 Cal.App.4th 310, 320, disapproved on another
ground in People v. Dain (2025) 18 Cal.App.5th 246, 252.) Defendant
committed his two prior strike convictions (robbery and manslaughter) at age
16 and then committed the current offense in this case at age 35. When
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defendant was not incarcerated, he committed additional crimes. He was
convicted of possession of a firearm by a felon in 2003 and then convicted of
receiving stolen property in 2010. Moreover, his first offense and the most
current one both involved robbery. As aptly noted by the trial court,
defendant “certainly didn’t learn from whatever took place from 1994 to
2015.” Given his record, defendant has not demonstrated an abuse of
discretion.
Defendant cites People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff) to
support his contention that the court abused its discretion in denying the
Romero motion. There, the defendant was required to register as a sex
offender after his convictions on nine counts of lewd and lascivious conduct
with a child under the age of 14. (Id. at p. 994.) He served his sentence for
those offenses and, upon release, diligently registered as a sex offender.
However, a separate requirement that offenders annually “update” their
registration within five days of their birthday was added by the Legislature
five years after the defendant was released from prison. The defendant was
subsequently convicted of failing to comply with this registration
requirement.
At sentencing, the trial court in Cluff denied the defendant’s Romero
motion, finding he intentionally failed to update his registration in order to
“obfuscate” his true residence. (Id. at pp. 1002-1003.) In reversing and
remanding the case for a new Romero hearing, the Court of Appeal concluded
that “none of the facts . . .support the inference that [the defendant] failed to
update his registration in order to obfuscate his residence or escape the reach
of law enforcement.” (Cluff, supra, 87 Cal.App.4th at p. 1003.) The court
went so far as to say that “the trial court’s analysis became disconnected from
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the evidence and entered the realm of imagination, speculation, supposition,
and guesswork.” (Id. at p. 1002.)
Cluff is inapplicable to the case at hand. We find no disconnect
between the evidence and the court’s justification for denying the Romero
motion. It is undisputed that the court initially had a mistaken belief that
the jury found true personal use of a firearm by defendant. However, defense
counsel promptly informed the trial court of its error, which the court then
acknowledged and corrected. The court then stated that a not true firearm
allegation in the current case was “mitigating,” but it ultimately did not
change the result of its section 1385 analysis on whether to dismiss the prior
strike conviction. Therefore, contrary to defendant’s contention, the trial
court did not consider an impermissible factor in denying his Romero motion.
(See e.g., Cluff, supra, 87 Cal.App.4th at p. 1002.)
II. Restitution Fine
Defendant contends that the $10,000 restitution fine imposed at his
original sentencing hearing and currently reflected in the abstract of
judgment must be vacated pursuant to the recent amendment to section
1465.9. We agree. Effective January 1, 2025, Assembly Bill No. 1186 (Stats.
2024, ch. 805, § 1) amended section 1465.9 to add subdivision (d), providing
that any portion of a restitution fine under section 1465.9 not paid within 10
years must be vacated. (§ 1465.9, subd. (d) [“Upon the expiration of 10 years
after the date of imposition of a restitution fine pursuant to [s]ection 1202.4,
the balance, including any collection fees, shall be unenforceable and
uncollectible and any portion of a judgment imposing those fines shall be
vacated.”]; In re Mattison (2025) 115 Cal.App.5th 1062, 1066.) The
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restitution fine was originally imposed in 2015, and defendant was
resentenced 10 years later. We therefore vacate the fine.
DISPOSITION
We direct the clerk of the superior court to prepare and forward to the
California Department of Corrections and Rehabilitation an amended
abstract of judgment vacating the restitution fine under section 1465.9,
subdivision (d). The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, P. J.
We concur:
MORI, J.
TAMZARIAN, J.
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