Filed 8/13/26 P. v. Lockhart CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B335012A
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA069600)
v.
JAMES HOLLOVER
LOCKHART,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sean D. Coen, Judge. Affirmed.
Heather J. Manolakas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri, Scott A. Taryle and Melanie Dorian,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Pursuant to an order by the California Supreme Court, we
vacate our original opinion and issue this opinion instead.
After being convicted of forcible rape (Pen. Code, § 261,
subd. (a)(2))1 and several other offenses, defendant and appellant
James Hollover Lockhart was sentenced to 106 years to life in
state prison, in part based on multiple serious felony convictions
he sustained in 1993 (the 1993 convictions). In 2023, defendant
was resentenced pursuant to section 1172.75; the trial court
reduced his total sentence to 105 years to life.
On appeal, defendant challenged the trial court’s failure to
strike both a five-year sentence enhancement for a prior serious
felony (§ 667, subd. (a)(1)) and any of the 1993 convictions, which
the trial court deemed prior “strike” convictions under
California’s “Three Strikes” law (§ 667, subds. (b)–(i)). We
affirmed, in part based on our rejection of defendant’s contention
that the court erred in ascribing 11 prior strikes to him based on
the 1993 convictions. (People v. Lockhart (Feb. 11, 2025,
B335012) [nonpub. opn.].)
Defendant filed a petition for review with the California
Supreme Court. On April 23, 2025, the Court granted review in
this case, and, in an order filed March 25, 2026, transferred the
case back to us with directions to vacate our prior opinion and
reconsider the cause in light of People v. Shaw (2025) 18 Cal.5th
1089 (Shaw).
We remain convinced that defendant is not entitled to
resentencing relief. Accordingly, we affirm the trial court’s order.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
BACKGROUND
I. The 1993 Convictions2
In February 1993, defendant was charged with 11 counts of
robbery. The information alleges that defendant robbed one
victim on November 17, 1992 (count 12); one victim3 on
November 27, 1992 (counts 1–2); three victims on December 19,
1992 (counts 8–10); and five victims on December 29, 1992
(counts 3–7). He was also charged with assaulting one of the
December 29 victims with a stun gun (count 11).
A contemporaneous probation report describes the
robberies as follows:
1. On November 17, 1992, defendant robbed a dry cleaners.
“[A] clerk[] reported defendant enter[ing] [the store]
holding a handgun which he pointed at her. He walked
behind the counter and told her to ‘give the money.’ In fear
for her life she removed her money from her pocket which
she gave the defendant. He then ordered her to walk to the
back of the store . . . . He demanded more money and the
victim opened the register from which she removed money
which she gave to the defendant . . . . Defendant demanded
her ring which she gave [him]. He also picked up her purse
. . . before he left[.]”
2 On May 21, 2026, defendant filed an unopposed motion to
augment the record with the information and probation report
from his 1993 convictions. We hereby grant the motion.
3 The probation report describes two victims of the November
27 incident.
3
2. On November 27, 1992, defendant robbed a second dry
cleaners. “The [store] owner . . . reported that [defendant]
entered the location and pointed a gun at [the owner] and
[an employee]. [¶] While pointing a gun at them the
defendant reportedly ordered both to lay on the floor. He
then removed money and jewelry from both and ordered
the owner to open the cash register from which he removed
money and then fled the location.”
3. On December 19, 1992, defendant robbed a store.
Defendant followed “the owner . . . to the rear [of the store]
. . . and started to walk into the office where he was told he
could not enter. At that time she saw the defendant
holding a small automatic gun in his right hand.
Defendant ordered [the owner and two customers] to the
office area and told them to lie face down on the floor and
empty their pockets and remove their jewelry . . . . The
defendant then told the owner to get up and to give him all
the money from the cash register . . . . He then said that he
knew she had more than that and [she] told him that he
could get the money out of her tote bag which was in the
office. They went back to the office, defendant again told
her to lie down and . . . picked up [her] stun gun. When
[one of the customers attempted to] overpower the
defendant[,] the defendant activated the stun gun which he
placed against the right side of [the customer’s] head
several times[,] . . . said ‘somebody is going to die here
tonight[,]’ . . . picked up the owner’s tote bag[,] . . . then
maced everyone and ran out of the front door.”
4
4. On December 29, 1992, defendant robbed a restaurant.
After speaking to the owner, defendant briefly exited the
restaurant only to return “[a] few minutes later . . . armed
with a gun and told all [four] customers [present] to lie on
the floor. They complied, and he took victims’ jewelry and
money. The defendant then told [the owner] to stand up.
When she did so he placed her in a choke hold, placed the
gun against her neck and walked her to the rear of the
restaurant and told her to give him all the money in the
cash register. After she complied he again told her to lie on
the floor and left locking the front doors.”
Defendant was convicted of 10 counts of robbery and one
count of assault with a stun gun, and was sentenced to 15 years
in prison. He was paroled on December 8, 2002.
II. The 2003 Conviction and Sentence
In 2003, a jury convicted defendant of forcible rape (§ 261,
subd. (a)(2); count 1), criminal threats (§ 422; count 2), false
imprisonment (§ 236; count 3), assault with a deadly weapon by
means likely to produce great bodily injury (§ 245, subd. (a)(1);
count 4), and forcible oral copulation (§ 288a, subd. (c)(2);
count 5).4 The events underlying these convictions took place on
or about April 16, 2003.
At a bifurcated bench trial, the trial court found that the
1993 convictions constituted serious felonies and prior strikes
4 The jury acquitted defendant of another count of forcible
oral copulation (count 6) and found not true the allegation that he
committed the rape with a knife.
5
under the Three Strikes law (§§ 667, subds. (a)–(i) & 1170.12,
subds. (a)–(d)).
The trial court sentenced defendant to a total of 106 years
to life. This aggregate sentence included a consecutive five-year
enhancement for defendant’s prior “strikes” per section 667,
subdivision (a)(1). Defendant also received a consecutive one-
year enhancement for the 1993 convictions pursuant to section
667.5, subdivision (b); a second enhancement under that statute
was stayed.
III. Resentencing; Appeal; Subsequent Events
A. Senate Bill No. 483
Effective January 1, 2022, Senate Bill No. 483 (2021–2022
Reg. Sess.) created section 1172.75 (former section 1171.1),5
which rendered “legally invalid” any section 667.5, subdivision (b)
sentence enhancement imposed prior to January 1, 2020, “except
for any enhancement imposed for a prior conviction for a sexually
violent offense[.]” (§ 1172.75, subd. (a).)
B. Recommendation and defendant’s motion for full
resentencing
In November 2022, the California Department of
Corrections and Rehabilitation recommended defendant’s case for
resentencing per section 1172.75.
In October 2023, defendant filed a motion asking the trial
court to “apply[] now-current[] California sentencing law” at his
resentencing hearing. Among other things, defendant asked the
5 Effective June 30, 2022, former section 1171.1 was
renumbered section 1172.75, with no substantive change. (Stats.
2022, ch. 58, § 12.) For simplicity, we refer to the section by its
new numbering.
6
trial court to dismiss his section 667, subdivision (a)(1) sentence
enhancement pursuant to section 1385, subdivision (c).
Defendant’s brief also included a variety of supplemental
exhibits, all of which showcased various personal and educational
development programs he completed while incarcerated.6
C. Resentencing hearing
On December 18, 2023, the matter proceeded to a
resentencing hearing. The trial court indicated that it had
reviewed all the papers submitted in the case, including
defendant’s motion and supplemental exhibits.
The trial court then recalled and resentenced defendant
pursuant to section 1172.75, subdivision (a). The court struck
both section 667.5, subdivision (b) enhancements. In all other
respects, the court reimposed defendant’s original sentence,
resulting in a total sentence of 105 years to life.
Although “[t]he [trial] [c]ourt [wa]s aware of its discretion
to dismiss the allegation pursuant to [§] 667[, subd. (a)(1)] and
the strike prior allegations[,]” it “cho[se] not to exercise [that]
discretion in this case.” The court explained that it “[did not]
believe the interest of justice in this matter would be served by
doing so[,]” even after “taking into consideration what
[defendant] has done . . . [and] how he’s progressing within”
prison.
The trial court found that although “the strike priors
occurred in one particular case[,]” they were committed “as
separate acts[.]” Moreover, defendant was paroled on the 1993
convictions in December 2002, and committed the rape and other
current offenses just four months later. Accordingly, the court
6 The following month, defendant submitted a second group
of exhibits further attesting to his progress in prison.
7
found that the prior convictions fell “within the spirit of the strike
law[,]” and declined to exercise its discretion to strike defendant’s
prior serious felony enhancement or any of his prior strike
convictions under section 1385.
Defendant timely appealed, and we affirmed the judgment.
(People v. Lockhart (Feb. 11, 2025, B335012) [nonpub. opn.].)
Following remand from the Supreme Court, the parties filed
supplemental briefs regarding the application of Shaw, supra, 18
Cal 5th 1089.
DISCUSSION
I. Background Legal Principles
A. Scope of resentencing under section 1172.75
“In general, ‘ “once a judgment is rendered and execution of
the sentence has begun, the trial court does not have jurisdiction
to vacate or modify the sentence.” ’ [Citation.]” (People v. Cota
(2023) 97 Cal.App.5th 318, 329 (Cota).) One exception to this
rule is section 1172.75, which “requires a full resentencing” at
which the trial court may reconsider all of its prior sentencing
decisions. (People v. Monroe (2022) 85 Cal.App.5th 393, 402
(Monroe).)
The statute provides “specific instructions” for the trial
court to exercise broad resentencing authority. (People v. Carter
(2023) 97 Cal.App.5th 960, 966.) Among other things, section
1172.75 requires the trial court to “apply any . . . changes in law
that reduce sentences or provide for judicial discretion so as to
eliminate disparity of sentences and to promote uniformity of
sentencing.” (§ 1172.75, subd. (d)(2).) Moreover, in resentencing
a defendant, the court “may consider postconviction factors,
including, but not limited to, the disciplinary record and record of
rehabilitation of the defendant while incarcerated, evidence that
8
reflects whether age, time served, and diminished physical
condition, if any, have reduced the defendant’s risk for future
violence, and evidence that reflects that circumstances have
changed since the original sentencing so that continued
incarceration is no longer in the interest of justice.” (§ 1172.75,
subd. (d)(3).)
B. Section 1385
“[S]ection 1385, subdivision (c)(1) . . . provides that ‘the
court shall dismiss an enhancement if it is in the furtherance of
justice to do so,’ and subdivision (c)(2) states that ‘[i]n exercising
its discretion under this subdivision, the court shall consider and
afford great weight to evidence’ of nine listed ‘mitigating
circumstances,’ any ‘one or more’ of which ‘weighs greatly in favor
of dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.’ ”
(People v. Mazur (2023) 97 Cal.App.5th 438, 443–444.)
The enumerated mitigating factors include, as relevant
here, that (1) “application of an enhancement could result in a
sentence of over 20 years[,] . . . . [i]n [which] instance[] the
enhancement shall be dismissed” (§ 1385, subd. (c)(2)(C)) and (2)
“[t]he enhancement is based on a prior conviction that is over five
years old” (§ 1385, subd. (c)(2)(H)).
C. The Three Strikes law
“The Three Strikes law is an alternative sentencing scheme
that prescribes longer sentences for felony convictions when the
defendant has previously been convicted of one or more felony
offenses designated as serious or violent—otherwise known as
‘strikes.’ ” (Shaw, supra, 18 Cal.5th at p. 1094.) “Under current
law, defendants with two or more prior strikes are subject to a
third strike, indeterminate life sentence . . . under certain
9
circumstances, including if their current offense is: serious or
violent; . . . one of various enumerated sex offenses; or one in
which the defendant used a firearm, was armed with a firearm or
deadly weapon, or intended to cause great bodily injury.
[Citation.]” (Id. at p. 1095; see also § 667, subd. (e)(2)(A), (C).)
Additionally, defendants who are “convicted of a serious
felony [and] previously ha[ve] been convicted of a serious felony
. . . shall receive . . . a five-year enhancement for each such prior
conviction on charges brought and tried separately.” (§ 667,
subd. (a)(1).)
II. Standard of Review
A trial “court’s failure to dismiss or strike a prior conviction
allegation is subject to review under the deferential abuse of
discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367,
374 (Carmony); see also People v. Garcia (2024) 101 Cal.App.5th
848, 856–857 [same, as to a resentencing court’s decision not to
reduce a defendant’s sentence under section 1172.75].)
“To establish an abuse of discretion, [a] defendant[] must
demonstrate that the trial court’s decision was so erroneous that
it ‘falls outside the bounds of reason.’ [Citations.] A merely
debatable ruling cannot be deemed an abuse of discretion.
[Citations.] An abuse of discretion will be ‘established by “a
showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” ’ [Citation.]” (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 390 (Bryant, Smith and
Wheeler).)
Related questions of statutory interpretation are reviewed
de novo. (People v. Lewis (2021) 11 Cal.5th 952, 961.)
10
III. Analysis
A. The trial court did not err
As required by section 1172.75, once notified of defendant’s
eligibility for recall and resentencing, the trial court held a full
resentencing hearing, giving defendant the opportunity to argue
that other sentencing reforms should also reduce his sentence.
(Monroe, supra, 85 Cal.App.5th at p. 402.)
At defendant’s request, the trial court applied section 1385,
declining to strike defendant’s five-year sentence enhancement
for a serious prior felony conviction (§ 667, subd. (a)) or any of his
prior strike convictions under the Three Strikes law. Our
question thus becomes whether the trial court abused its
discretion in failing to strike those sentencing elements.
We conclude that the trial court did not abuse its
discretion. The court stated that it had read and considered
defendant’s briefing which, inter alia, argued that two mitigating
factors enumerated in section 1385—namely, subdivisions
(c)(2)(C) and (c)(2)(H)—were present in his case. Because the
court did not “find[] that dismissal of the [challenged]
enhancement[s] would endanger public safety[,]” it was tasked
with weighing “[p]roof of . . . these [mitigating] circumstances
. . . greatly in favor of dismissing the enhancement.” (§ 1385,
subd. (c)(2).)
However, the trial court ultimately found that strong
countervailing factors, including defendant’s extensive criminal
history, negated the available mitigating factors. (People v.
Walker (2024) 16 Cal.5th 1024, 1036 (Walker) [at resentencing, a
trial court may reimpose a challenged enhancement upon
“find[ing] substantial, credible evidence of countervailing factors
that . . . ‘neutralize . . . the great weight of the mitigating
11
circumstance, such that dismissal of the enhancement is not in
furtherance of justice’ ”].) The court did not reduce defendant’s
sentence beyond striking the statutorily invalidated section
667.5, subdivision (b) enhancements, concluding that “the
interest of justice in this matter would [not] be served by” any
further reduction.
On this record, we cannot conclude that the trial court’s
resentencing decision was “arbitrary, capricious, or patently
absurd[.]” (Bryant, Smith and Wheeler, supra, 60 Cal.4th at
p. 390.)
B. Defendant’s counterarguments
Defendant raises what boil down to five counterarguments.
First, he contends that section 1385 entitles him to “a rebuttable
presumption in favor of dismissing the enhancement,” since the
trial court did not find that dismissal “would endanger the public
safety.” Not so; as defendant recognizes in his reply brief, our
Supreme Court recently held that “section 1385 . . . does not erect
a rebuttable presumption in favor of dismissal.” (Walker, supra,
16 Cal.5th at p. 1033.) Instead, “absent a finding that dismissal
would endanger public safety, a court retains [its] discretion to
impose or dismiss enhancements provided that it assigns
significant value to the [statutorily] enumerated mitigating
circumstances when they are present.” (Id. at p. 1029, italics
added.)
Second, defendant disputes whether the trial court actually
“assign[ed] significant value to the . . . mitigating circumstances”
present in this case. (Walker, supra, 16 Cal.5th at p. 1029.)
Defendant first focuses on subdivision (c)(2)(C), which
provides that “[i]n th[e] instance” that “the application of an
enhancement could result in a sentence of over 20 years[,]” “the
12
enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(C).)
Defendant insists that the plain text of this subdivision requires
dismissal of the challenged enhancement; since the trial court
failed to enter an automatic dismissal, it must not have
adequately considered this element.
Assuming arguendo that the five-year sentence
enhancement provided for in section 667, subdivision (a) “could
result” in defendant’s sentence being over 20 years long (§ 1385,
subd. (c)(2)(C)),7 we would still disagree with defendant’s
interpretation of the statute. Despite its facially mandatory
language, all appellate courts to consider the issue have
concluded that section 1385, subdivision (c)(2)(C) permits, but
does not require, a court to dismiss an enhancement that could
result in a sentence of over 20 years. (See Mazur, supra,
97 Cal.App.5th at p. 445; Cota, supra, 97 Cal.App.5th at p. 337;
People v. Renteria (2023) 96 Cal.App.5th 1276, 1284–1290; People
v. Mendoza (2023) 88 Cal.App.5th 287, 294–297; People v.
Lipscomb (2022) 87 Cal.App.5th 9, 15–21.)
This court came to the same conclusion regarding similar
language in section 1385, subdivision (c)(2)(B),8 and we abide by
that reasoning here: “The phrase . . . [‘]shall be dismissed’ is not
a standalone mandate of section 1385. Instead, it appears in the
statute appended to [two] of the nine [enumerated] mitigating
circumstances . . . . Section 1385 explicitly instructs that the
7 Defendant’s sentence totaled 100 years to life before
applying the section 667, subdivision (a)(1) enhancement.
8 Section 1385, subdivision (c)(2)(B) states that “in th[e]
instance” that “[m]ultiple enhancements are alleged in a single
case[,]” “all enhancements beyond a single enhancement shall be
dismissed.”
13
existence of a[ny of those] . . . circumstance[s] . . . ‘weighs greatly
in favor of dismiss[al]’ of an enhancement as the court
. . . exercis[es] its discretion . . . to evaluate whether dismissal is
in the furtherance of justice . . . . If we were to read the phrase
appended to the [two facially mandatory] mitigating factor[s] as
automatically mandating dismissal of all but one enhancement
whenever multiple enhancements exist, then the existence of
multiple enhancements would not ‘weigh greatly’ in favor of
dismissal—it would weigh dispositively. But that is not what the
statute says, and we are not allowed to rewrite the statute.
[Citation.]” (People v. Walker (2022) 86 Cal.App.5th 386, 397,
overruled on other grounds by Walker, supra, 16 Cal.5th 1024,
italics in original.)
Anticipating our rejection of his automatic dismissal
argument, defendant alternatively contends that both
subdivisions (c)(2)(C) and (c)(2)(H) of section 1385 warrant
dismissal of the challenged enhancement. Defendant points out
that “absent a danger to public safety, the presence of an
enumerated mitigating circumstance will generally result in the
dismissal of an enhancement[.]” (Walker, supra, 16 Cal.5th at
p. 1036.)
However, as stated above, Walker permits a trial court to
reimpose an enhancement upon “find[ing] substantial, credible
evidence of countervailing factors that . . . ‘neutralize . . . the
mitigating circumstance, such that dismissal of the enhancement
is not in furtherance of justice.’ ” (Walker, supra, 16 Cal.5th at
p. 1036.)
Defendant contends that the trial court did not comply with
Walker, but instead “merely . . . weigh[ed] . . . mitigating and
aggravating [factors].” But the process described in Walker is,
14
essentially, a weighing test: A trial court must determine
whether “substantial, relevant, and credible evidence of
aggravating [circumstances] . . . neutralize the ‘great weight’ of
the mitigating circumstance[s]” at play. (Walker, supra, 16
Cal.5th at p. 1036 [internal citations omitted].) As described
above, that is exactly what the court did here.
Third, defendant contends that the trial court’s silence as
to mitigation factors enumerated under section 1172.75,
subdivision (d)(3)—namely his age, time served, and potential for
future violence—suggests that the court failed to consider these
factors or accord them the proper weight. Citing no supporting
legal authority, defendant asserts that “the court’s disregard” of
these factors, or its favoring “some factors related to recidivism
and not others,” constitutes an abuse of discretion.
Defendant’s argument ignores the long-settled rule that “in
light of the presumption on a silent record that the trial court is
aware of the applicable law, including statutory discretion at
sentencing, we cannot presume error where the record does not
establish on its face that the trial court misunderstood the scope
of that discretion.” (People v. Gutierrez (2009) 174 Cal.App.4th
515, 527.) Absent an “affirmative[] demonstrat[ion] that the trial
court was unaware of or misunderstood the scope of its
sentencing discretion” (People v. Coleman (2024) 98 Cal.App.5th
709, 724), we instead presume that the court “ ‘ “acted to achieve
legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review[]” ’ ” (Carmony, supra, 33 Cal.4th at pp. 376–
377).
The trial court’s silence on the identified section 1172.75,
subdivision (d)(3) factors is not enough to establish an abuse of
15
discretion, particularly where, as here, the court indicated that it
read and considered defendant’s briefing requesting
consideration of each factor.
Fourth, defendant claims that “the trial court’s reliance on
[his] prior criminal history as the leading cause for denying relief
is an abuse of discretion.” But a court properly “g[i]ve[s] primary
weight to [a] [d]efendant’s extensive criminal history” when his
prior convictions “reflect a career criminal who is unable to
remain out of prison for more than a few years at a time.” (People
v. Mendoza (2022) 74 Cal.App.5th 843, 857.) As the court noted
at the resentencing hearing, here, defendant had been
incarcerated since he was 22 years old, only lasting out on parole
for four months before being arrested for his current convictions.
The trial court properly considered this countervailing factor at
defendant’s resentencing hearing.
Lastly, in his most recent supplemental brief, defendant
argues that our Supreme Court’s recent opinion in Shaw, supra,
18 Cal.5th 1089, warrants vacation of his sentence and remand
for a new sentencing hearing.
In Shaw, the court held that “a trial court is required to
dismiss a strike when two of a defendant’s prior strikes are the
result of the same act[,]” including when the strikes arise from
“the defendant’s single act [which] harmed multiple victims.”
(Shaw, supra, 18 Cal.5th at p. 1103, disapproving People v.
Rusconi (2015) 236 Cal.App.4th 273, 280.) Under Shaw,
defendant suffered four—not eleven—strikes, because his eleven
prior convictions arise from four separate acts.
Defendant concedes that “four prior strikes are still
significant,” but contends that the trial court nonetheless erred
by “rel[ying] on [the] improper premise” that defendant had
16
eleven strikes, which “could have significantly impacted the
court’s decision.” The record belies this assertion. The trial court
“clear[ly] indicat[ed] that [it] would not have reduced
[defendant’s] sentence even if[,] at the time of sentencing[,]” it
had been aware that defendant suffered four, rather than eleven,
prior strikes. (People v. Almanza (2018) 24 Cal.App.5th 1104,
1110 (Almanza); see People v. Gutierrez (1996) 48 Cal.App.4th
1894, 1896 (Gutierrez) [remand unnecessary where “the trial
court indicated that it would not, in any event, have exercised its
discretion to lessen the sentence”].)
In denying defendant’s request to strike either the prior
serious felony enhancement or any of his prior strike convictions,
the trial court did not rely solely on the number of defendant’s
prior strikes. (See People v. Carrasco (2008) 163 Cal.App.4th 978,
993 (Carrasco) [“We view the totality of the trial court’s
statement of reasons, not just one snippet.”].) The court
explained that it “[did not] believe the interest of justice in this
matter would be served by” further reducing defendant’s
sentence, even after weighing the relevant mitigating factors.
Moreover, the trial court found that defendant’s prior convictions
fell “within the spirit of the strike law” because of the extremely
short time—four months—between defendant’s release on parole
for the 1993 convictions and his commission of the current
offenses. (See People v. Williams (1998) 17 Cal.4th 148, 161 [in
determining whether to strike a prior strike conviction, the court
must consider the “circumstances of [the defendant’s] present
felonies and prior serious and/or violent felony convictions”];
Carrasco, supra, 163 Cal.App.4th at pp. 993–994 [no abuse of
discretion in deciding not to strike the defendant’s one prior
strike conviction because, among other things, he “did not remain
17
free from further imprisonment for at least five years after his
[initial] release” (italics added)].)
On this record, reducing defendant’s prior strikes to four
would not affect the trial court’s decision regarding defendant’s
prior strike convictions and the associated five-year
enhancement. We decline to issue a futile remand. (Almanza,
supra, 24 Cal.App.5th at p. 1110; Gutierrez, supra,
48 Cal.App.4th at p. 1896.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
GOORVITCH
We concur:
________________________, P. J.
LUI
________________________, J.
RICHARDSON
18