Filed 10/2/26 P. v. Merritt CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085003
v. (Super.Ct.No. SWF2301969)
TRAVIS STERLING MERRITT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge.
Affirmed.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Stephanie Chow and Robin
Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
A jury convicted defendant and appellant Travis Sterling Merritt of misdemeanor
assault (Pen. Code,1 § 240; count 1), assault with a deadly weapon (§ 245, subd. (a)(1);
count 2), misdemeanor battery (§ 242; count 3), and resisting arrest (§ 148, subd. (a)(1);
count 4). In a bifurcated proceeding, defendant admitted that he had suffered five prior
strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (e)(2)) and two prior
serious felony convictions (§ 667, subd. (a)), stemming from his convictions for four
counts of robbery (§ 211) in 2007 and one count of residential burglary (§§ 459, 460) in
2021.
In addition, the trial court found true six aggravating factors alleged against
defendant. These included (1) the violence of the crime showed that defendant was a
serious danger to society (Cal. Rules of Court,2 rule 4.421(b)(1)); (2) defendant had
served a prior prison term (rule 4.421(b)(3)); (3) defendant was on parole when he
committed the instant offenses (rule 4.421(b)(4)); (4) defendant’s prior performance on
parole was unsatisfactory (rule 4.421(b)(5)); (5) defendant’s prior convictions were
numerous and increasingly serious (rule 4.421(b)(2)); and (6) defendant was armed with
and used a deadly weapon during the offense (rule 4.421(a)(2)). After the trial court
denied defendant’s motion to dismiss his prior strike convictions and exercised its
1 All future statutory references are to the Penal Code.
2 All future citations to the rules will be to the California Rules of Court.
2
discretion to strike the prior serious felony convictions pursuant to section 1385, the court
sentenced defendant to an aggregate term of 25 years to life with additional concurrent
terms for the misdemeanor convictions.
On appeal, defendant contends (1) his admissions to his prior conviction
allegations were not knowingly and voluntarily made and thus his sentence and the true
findings on the allegations must be set aside; (2) the trial court abused its discretion in
denying his motion to strike his prior strike convictions; and (3) the trial court abuse its
discretion in failing to consider sentencing him as a second striker under Assembly Bill
No. 600 (2023-2024 Reg. Sess.). We reject these contentions and affirm the judgment.
II.
FACTUAL BACKGROUND
On the morning of December 20, 2023, M.R. went to get a haircut at a barbershop
in Murrieta with his five-year-old son and two nephews, ages five and eight. M.R. had
been going to the same barber, L.H., for 12 years. While M.R.’s eight-year-old nephew
was in the barber chair getting his hair cut, defendant entered the barbershop with his
“fists balled.” L.H. told defendant to leave and offered to talk to him at a later time.
Instead of leaving, defendant thrust forward at L.H. and struck him in the face with a
balled fist two or three times. Defendant’s punches caused L.H. to feel dizzy, as well as a
bloody nose and swelling to his eye and face.
M.R.’s nephew was an arm’s-length away from L.H. at the time. M.R. thus
intervened, rushed forward and punched defendant. M.R. wrestled defendant into a
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hallway outside of the main barbershop and told him to leave because there were children
present. Defendant eventually left.
Law enforcement were notified. M.R. called a family member to pick up the
children, and he stayed inside the barbershop, waiting for the police to arrive. The police
arrived shortly thereafter and spoke with the people inside the barbershop.
A short while later, about 15 to 20 minutes later, defendant returned to the
barbershop. Defendant tried to come through the door while L.H. held the door shut to
prevent him from entering. Despite L.H.’s efforts, defendant was able to open the door
and defendant slashed at L.H. through the door opening with a fully extended red box
cutter. M.R. rushed to the door, moved L.H. away from the door, and attempted to close
the door on defendant. M.R. was unsuccessful, and defendant approached L.H. with the
box cutter while striking him with his other hand. Defendant continued to thrust his fist
at L.H.
M.R. grabbed defendant’s jacket, pushed defendant out of the barbershop and
began striking him. Defendant then turned his focus to M.R. and began thrusting his fist
at him. The two men continued to hit each other and eventually, they both tumbled and
fell to the ground outside of the barbershop. While they were on the ground, L.H. yelled
that defendant had a knife. M.R. and L.H. then got up from the ground. M.R. was
prepared to fight some more, but defendant ran past M.R., away from the barbershop.
Someone inside the barbershop called 911 again, and M.R. provided the operator with a
description of defendant.
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M.R. was limping and realized he had been stabbed. He had lacerations on his
right triceps area and left knee. Photos of the injuries were introduced at trial. The injury
to his triceps took two weeks to heal. The laceration to his knee area required stitches,
took three to four weeks to heal, and had affected his ability to work. M.R. could not say
at what point in the fight he received these injuries, but he did not have them until the
second encounter with defendant. After the second attack, L.H. had redness to his face, a
black eye, a laceration above his left eyebrow, and a laceration on his lip. Photos of
L.H.’s facial injuries and an arm injury he sustained from falling into the wall were
introduced at trial. L.H. did not have these injuries before the incident. The incident was
captured on the barbershop’s surveillance camera, and the footage was played for the
jury. L.H. knew defendant from prior incidents and had been informed that defendant
had come looking for him before. L.H. had dated someone defendant had previously
dated. He denied having not treated her well.
A sheriff’s deputy responded to the scene and searched for defendant. He located
defendant walking at a very rapid pace in a nearby parking lot. The deputy told
defendant he just wanted to talk to him, and defendant repeatedly responded that he had
not done anything. The deputy asked whether he had any weapons. Defendant
responded he had one in his waistband. When the deputy noticed blood on defendant’s
left hand, he told defendant to sit down. Instead of complying, defendant reached into his
pockets and repeated that he had not done anything wrong. The deputy then told
defendant to turn around and place his hands behind his back. Defendant remained
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noncompliant, kept reaching into his pockets, and then took off running. The deputy told
defendant to stop, but he did not. After chasing defendant for a half mile, the deputy
caught up with him and tackled him to the ground. These events were captured on the
deputy’s body worn camera, and the footage was played for the jury. The deputy and
other deputies did not find the box cutter or a similar sharp weapon.
Defendant did not offer any affirmative evidence, but in closing, his counsel
generally argued that the People failed to meet their burden of proof and that defendant
acted in self defense.
III.
DISCUSSION
A. Admission of Prior Convictions
Defendant argues he did not receive proper advisements before admitting to his
prior conviction allegations and therefore, his admissions were not knowing and
voluntary. He thus believes his sentence and the true findings on the prior conviction
allegations must be set aside as a violation of his due process rights.
1. Background of Defendant’s Admissions
During pretrial discussions, defense counsel indicated defendant desired a
bifurcated trial on the prior conviction allegations. The court replied: “Okay. What I am
going to do is ask you to have a discussion with your client, let me know when we come
back on Tuesday whether that will be a jury trial if it becomes necessary. Obviously if he
is not convicted it is a moot point. But if it becomes necessary, let me know if you guys
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want a jury trial or court trial on that issue.” Defense counsel assured the court he would
discuss the matter with defendant, and the court granted the request for bifurcation.
Later, after both parties rested at the close of evidence, but before the jury returned
its verdict, the trial court inquired as to how defendant wished to proceed with the
bifurcated trial on the aggravating factors and the prior conviction allegations. Defense
counsel indicated defendant had elected to have a bench trial on the aggravating factors
and the prior conviction allegations. The court then asked defense counsel to take a
waiver from his client on the record, and the following colloquy occurred:
“[DEFENSE COUNSEL]: Sure. You understand, Mr. Merritt [defendant], as we
have discussed before, that you have a right to have a jury decide the truth of your prior
convictions and the aggravating factors that are alleged against you; correct?
“THE DEFENDANT: Yes.
“[DEFENSE COUNSEL]: Okay. Have we had ample time to discuss your right
to a jury trial on those matters?
“THE DEFENDANT: Yes.
“[DEFENSE COUNSEL]: Okay. And it’s your intention to waive a jury in
deciding those matters, that is, the priors and the aggravating factors, and rather do what
we call a bench trial. Bench trial is where Judge Gallon will hear the evidence and then
make a decision. The standard of proof will be the same, beyond a reasonable doubt. Do
you understand all that?
“THE DEFENDANT: Yes
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“[DEFENSE COUNSEL]: Okay. And so it is your intention to waive your right to
a jury and proceed with a bench trial; is that correct?
“THE DEFENDANT: Yes.
“[DEFENSE COUNSEL]: Join.
“THE COURT: Just to be clear, that is a bench trial on both the strike priors, the
nickel priors, as well as any and all aggravating factors; correct?
“THE DEFENDANT: Yes.
“[DEFENSE COUNSEL]: Join.”
By the time of the sentencing hearing, however, defendant had changed his mind
and decided to admit the prior conviction allegations. Specifically, the following
colloquy occurred between defendant and his counsel, who was a different counsel than
the one who represented him at trial:
“[DEFENSE COUNSEL]]: [¶] With respect to the two nickel priors, one and
two, the first one from 2007 for a 211 and then the one from 2021 for first degree 459.
Mr. Merritt after discussions is going to be admitting that. And furthermore, he would be
admitting the four 211s from 2007 and the—obviously the 459 from 2021, they are
alleged as strike priors.
“THE COURT: All right. And why don’t you go ahead ask him if that is the case.
“[DEFENSE COUNSEL]: Mr. Merritt, you have a right to have a trial, a bench
trial, related to the priors that have been alleged on the information, specifically the 2007
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four 211s and the 2021 459. Do you give up your right to a bench trial and are you
willing to admit that these priors are you and that they happened?
“THE DEFENDANT: Yes, I am. I admit.
“THE COURT: Court accepts those at this time. And you join that, ma’am?
“[DEFENSE COUNSEL]: I do, your Honor.”
No further advisements were given. After defendant admitted the prior conviction
allegations, defendant was placed under oath at sentencing and made a statement. After
he concluded, the prosecutor cross-examined him about the instant case and his prior
convictions. Defendant admitted he had been convicted of four counts of robbery in
2007, and he discussed his participation in those events. Moreover, defendant admitted
that he had pled guilty to the robbery charges, and replied in the affirmative to the
prosecutor’s question of whether he “made a statement about [the robbery charges] in
your allocution to the court.” And both defense counsel and the prosecutor agreed that
the prior convictions were all obtained by guilty pleas.
2. Legal Background
When a defendant admits a prior conviction allegation that can increase the term
of punishment, the trial court must ensure the admission is intelligent and voluntary.
(People v. Cross (2015) 61 Cal.4th 164, 170.) To do so, the court “must inform the
defendant of three constitutional rights—the privilege against compulsory self-
incrimination, the right to trial by jury, and the right to confront one’s accusers—and
solicit a personal waiver” of each right pursuant to Boykin v. Alabama (1969) 395 U.S.
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238, 243-244 (Boykin) and In re Tahl (1969) 1 Cal.3d 122, 130-133 (Tahl). (Cross, at
p. 170.)
Although trial courts are required to advise defendants of these constitutional
rights, the failure to do so does not automatically result in reversal. (People v. Mosby
(2004) 33 Cal.4th 353, 361 (Mosby).) Where, as here, the record reflects incomplete
advisements and waivers, we “must examine the record of ‘the entire proceeding’ to
assess whether the defendant’s admission of the prior conviction was intelligent and
voluntary in light of the totality of circumstances.” (Ibid.) We may consider a
defendant’s past experience with the criminal justice system as relevant to the defendant’s
knowledge of and sophistication about the defendant’s legal rights. (Id. at p. 365.) “The
focus is not on whether a prior would have been found true, but on whether the defendant
knew of [the defendant’s] constitutional rights.” (People v. Stills (1994) 29 Cal.App.4th
1766, 1770.)
In concluding the defendant voluntarily and intelligently admitted the prior
conviction despite the incomplete advisement by the trial court, the Mosby court
explained that the defendant had admitted the prior conviction immediately after a jury
found him guilty of the substantive offense following a trial in which he was represented
by counsel and did not testify. (Mosby, supra, 33 Cal.4th at p. 364.) “Thus, he not only
would have known of, but had just exercised, his right to remain silent at trial, forcing the
prosecution to prove he had sold cocaine. And, because he had, through counsel,
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confronted witnesses at that immediately concluded trial, he would have understood that
at a trial he had the right of confrontation.” (Ibid.)
The court added, “[a] review of the entire record also sheds light on [the]
defendant’s understanding. For instance, ‘a defendant’s prior experience with the
criminal justice system’ is, as the United States Supreme Court has concluded, ‘relevant
to the question [of] whether he knowingly waived constitutional rights.’ [Citation.] That
is so because previous experience in the criminal justice system is relevant to a
recidivist’s ‘ “knowledge and sophistication regarding his [legal] rights.” ’ [Citations.]
Here [the] defendant’s prior conviction was based on a plea of guilty, at which he would
have received Boykin–Tahl advisements. As the Court of Appeal here concluded: ‘[H]e
knew he did not have to admit [the prior conviction] but could have had a jury or court
trial, had just participated in a jury trial where he had confronted witnesses and remained
silent, and had experience in pleading guilty in the past, namely, the very conviction that
he was now admitting.’ ” (Mosby, supra, 33 Cal.4th at p. 365, fn. omitted.)
Having considered the record in its entirety, we conclude defendant voluntarily
and intelligently admitted the prior conviction allegations. Defendant’s counsel advised
defendant of his right to a jury trial or court trial on the prior conviction allegations but
did not specifically advise him of the rights to remain silent and to confront adverse
witnesses. Although the trial court erred in failing to advise defendant of his rights to
remain silent and confront adverse witnesses, defendant’s admission occurred shortly
after he had participated in a jury trial in which such rights were exercised. At trial,
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defendant chose not to testify. Thus, defendant was aware of his right to remain silent.
In addition, during the jury trial on the substantive charges, defendant, through counsel,
vigorously confronted adverse witnesses. Having been represented by counsel during the
jury trial, it is reasonable to infer defendant was aware that he had the right to remain
silent and confront witnesses against him on the prior conviction allegations.
Furthermore, presumably defendant’s trial counsel explained to defendant his
rights and the penal consequences of an admission to a prior conviction allegation. The
prior conviction allegations were all specified in the information, which referenced the
Penal Code sections creating the possibility of an increased sentence. We may presume
defendant discussed the information and the effect of an admission with his counsel. (See
People v. Bow (1993) 13 Cal.App.4th 1551, 1560 [it is the role of counsel to explain to
his client the charges and enhancements]; Strickland v. Washington (1984) 466 U.S. 668,
690 [counsel is presumed competent].) Indeed, the record contains defense counsel’s
assurance that he would discuss with defendant his right to a jury trial, and the record
affirmatively discloses that defendant discussed whether to admit the prior conviction
allegations with his attorney in private discussions.
Relying on People v. Lloyd (2015) 236 Cal.App.4th 49 (Lloyd), defendant argues
that his admission was not voluntary and intelligent because it did not occur until seven
months after the jury trial. Lloyd is distinguishable.
In Lloyd, a jury found the defendant guilty of assault with a deadly weapon and
found true the allegation he inflicted great bodily injury on the victim. (Lloyd, supra, 236
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Cal.App.4th at p. 52.) In a bifurcated proceeding conducted more than seven months
later, the defendant admitted having served five prior prison terms. (Id. at p. 59.) “In the
interim, [the] defendant’s trial counsel declared a conflict of interest and was relieved as
counsel of record, new counsel was appointed to represent [the] defendant, and the matter
was continued a number of times for trial on the state prison priors and sentencing.”
(Ibid.)
The appellate court in Lloyd distinguished Mosby, noting that “the Supreme Court
stressed the defendant’s admission ‘immediately’ followed a trial in which he had ‘just’
exercised his right to silence and his right to confrontation, such that it was reasonable to
infer he would have been aware of the right to silence and confrontation at the time he
entered his admission.” (Lloyd, supra, 236 Cal.App.4th at p. 59.) “Here, on the other
hand, [the] defendant’s admission did not immediately follow his trial. In fact, the
admission was not made until seven months later.” (Ibid.) The reviewing court
concluded that, under the totality of the circumstances, the defendant’s admission of the
prior prison term allegations was neither voluntary nor intelligent. (Id. at pp. 59-60.)
The appellate court explained the over seven-month interval between the trial and
sentencing hearing, in conjunction with the defendant’s change in counsel, precluded any
inference that the defendant was aware of the rights he had exercised at trial when he
admitted the prior prison term allegations. (Id. at p. 59.) Nor was there any information
in the record that showed the defendant’s prior convictions stemmed from guilty pleas at
which he would have been advised of, and waived, his constitutional rights. (Id. at p. 60.)
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Here, although defendant’s admission came seven months after his trial like in
Lloyd and defendant was represented by a different attorney at his sentencing hearing, the
sentencing hearing was not the first time the topic of a trial on the prior conviction
allegations was discussed. As noted above, there was a pretrial discussion, an interim
trial discussion, and the sentencing hearing discussion on the prior conviction allegations.
At the pretrial discussion, defense counsel assured the trial court he would discuss with
defendant his option to have a jury trial or bench trial on the prior conviction allegations.
At the pre-verdict discussion, counsel obtained a waiver, on the record, of defendant’s
right to a jury trial. That waiver came during the trial at which defendant’s counsel had
cross-examined the prosecution’s witnesses and at which defendant knowingly and
intelligently waived his right to testify. This was not the case that defendant first heard
about his right to trial on the priors seven months after his verdict and immediately before
he made his admissions. Rather, this had been an ongoing discussion, with his counsel,
since before the trial began. And when he did admit to the priors, it was after discussions
with his counsel.
Furthermore, defendant was no stranger to the criminal justice system, having
suffered multiple prior felony convictions following guilty pleas—where he would have
received Boykin-Tahl advisements. Although not reported by the probation officer, both
defense counsel and the prosecutor agreed that the prior convictions were all obtained by
guilty pleas. Moreover, following his prior convictions, defendant pled guilty to
residential burglary in 2021. In 2023, defendant was convicted of four misdemeanor
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counts of contempt for violating a 2021 restraining order and misdemeanor battery. And
at the time of sentencing, defendant had three pending cases—two misdemeanor cases
involving assaults on other inmates while in jail and one felony aggravated assault case.
We can infer defendant’s understanding of his constitutional rights from his extensive
experience with the criminal justice system. (Mosby, supra, 33 Cal.4th at p. 365.) “That
is so because previous experience in the criminal justice system is relevant to a
recidivist’s ‘ “knowledge and sophistication regarding his [legal] rights.” ’ ” (Ibid.)
Defendant’s reliance on People v. Christian (2005) 125 Cal.App.4th 688
(Christian), is misplaced. In that case, the defendant had not just participated in a trial
wherein he would have exercised his right to confront witnesses and/or asserted his right
against self-incrimination. Instead, he pled no contest to the substantive charges and
admitted the prior allegations. (Id. at p. 693, 697.) Furthermore, there were no facts
regarding the circumstances of the defendant’s prior convictions, i.e., if they were by plea
or trial. (Id. at p. 697.) On appeal, our colleagues in the Second District found that
“[g]iven the lack of information regarding [the defendant’s] prior convictions, the
significant gap [in time between his last conviction and the present charges], and the lack
of other facts demonstrating an awareness and comprehension of his constitutional rights,
we cannot infer that [the defendant’s] prior experience in the criminal justice system
demonstrated his present knowledge and understanding of his rights. [Citations.]” (Id. at
pp. 697-698.)
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Here, in contrast to the facts in Christian and while “we are not privy to the
conversation” defendant had with his counsel about the prior conviction allegations
(Christian, supra, 125 Cal.App.4th at p. 698), only that the conversation took place,
defendant was advised of and acknowledged his right to a jury trial on the prior
conviction allegations. Defendant had just undergone a jury trial on the substantive
charges where he had chosen not to testify and remain silent. In addition, the parties
agree that defendant had pled guilty to the prior convictions. Moreover, defendant
admitted that he had pled guilty to the robbery charges. He replied in the affirmative to
the prosecutor’s question of whether he “made a statement about [the robbery charges] in
your allocution to the court.” Because the prior conviction allegations were based on
pleas of guilty, defendant would have received Boykin–Tahl advisements. (Mosby, supra,
33 Cal.4th at p. 365.) And defendant had extensive experience in the criminal justice
system.
People v. Kinnear (2025) 116 Cal.App.5th 1116 (Kinnear), which defendant relies
on in his reply brief, also does not support a different result. Kinnear is distinguishable
because it presented a “silent record,” missing all three mandated advisements, in contrast
to the incomplete advisement here. (Id. at p. 1124.) After the jury found the defendant
guilty, the only colloquy that occurred was as follows: The prosecutor stated it was his
understanding the defendant “ ‘wants to stipulate to the priors and the aggravating
factors.’ ” (Kinnear, supra, 116 Cal.App.5th at p. 1122.) The court then recited there
was an allegation of a prior strike offense and it was alleged “ ‘there are aggravating
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factors which could make your sentence longer,’ ” namely a prior prison term and the
new offense was committed while he was on supervision or parole. (Ibid.) After these
perfunctory remarks, the court asked the defendant, “ ‘[d]o you now stipulate or agree
that you suffered the prior strike and the aggravating factors are, in fact, true?’ ” (Ibid.)
The defendant replied, “ ‘Yes, sir.’ ” (Ibid.) The record before us is profoundly different.
Kinnear thus does not sway our conclusion.
Under the totality of the circumstances, we conclude defendant knowingly and
intelligently admitted his prior conviction allegations.
B. Denial of Motion to Strike
Defendant contends the trial court abused its discretion in denying his motion to
strike his prior convictions and sentence him as a second striker because it failed to
properly consider the relevant factors, primarily his youth at the time he committed the
prior strikes.
Prior to the sentencing hearing, defense counsel filed a motion pursuant to People
v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and argued that defendant
was “forced to go to trial,” rather than accept responsibility for his actions, because the
People were unwilling to negotiate a resolution, and defendant was facing a life sentence
given the prior conviction allegations. Defendant also argued that he was 17 years old
when he committed the robbery offenses giving rise to four of his prior strike
convictions. Defendant noted that his subsequent brushes with the law, after being
released from prison, could be attributed to his impulsive behavior, his inability to do
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what he thought was right, and a toxic relationship with the mother of his children. He
also pointed out that his father was absent, and he had a difficult upbringing, mainly due
to his having to move a lot by virtue of being in a military family. Defendant further
noted that he was a good father and availed himself of educational opportunities while
incarcerated.
The People filed an opposition to the motion, in which they discussed the facts of
the current case and pointed out that since defendant was incarcerated for this case, he
had committed and been convicted of two misdemeanor assaults on inmates and prior to
his incarceration for this case, he had attacked an additional inmate. The People also
noted defendant had a lengthy criminal history that included numerous crimes of
violence, and even being incarcerated had not deterred him from committing additional
violent crimes. The People argued that defendant fell within the spirit of the Three
Strikes Law.
After considering the parties’ written motions and hearing their arguments at the
sentencing hearing, the court ruled as follows: “With respect to the Romero motion, the
court, in considering all of the information in front, including the seriousness of the prior
strikes but also the youth, I considered very greatly how old he was but also looked at the
sophisticated level of these prior strikes, multiple, multiple strikes, multiple violent
offenses, and the bridge between them and the current offense with additional criminal
conduct, state prison sentences, looking at all of the reasons under the Romero case and
subsequent decisions, including the current offense being a serious or violent offense, use
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of a weapon, injury, prior violent offenses, sophisticated, even while pending trial, he’s
got multiple assaultive cases including for the prelim, hitting someone in the head with
waist chains causing bleeding, which I guess the People reduced to a misdemeanor, but it
is very serious conduct. [¶] For all those reasons, I believe it would be abuse of
discretion to strike the strikes at this time. And the Romero motion is respectfully
denied.”
In Romero, our Supreme Court “explained that the ‘power to dismiss an action,’
‘in furtherance of justice’ pursuant to Penal Code section 1385[, subdivision] (a),
‘includes the lesser power to strike . . . allegations’ or vacate findings ‘relevant to
sentencing, such as the allegation’ or finding ‘that a defendant has prior felony
convictions.’ ” (People v. Williams (1998) 17 Cal.4th 148, 151 (Williams).)
In ruling on a motion to dismiss a prior serious and/or violent felony under the
Three Strikes Law, the court must consider the “nature and circumstances” of the present
felonies and prior convictions, as well as the defendant’s “background, character, and
prospects.” (Williams, supra, 17 Cal.4th at p. 161.) The court must then determine
whether the defendant should be considered outside of the spirit of the Three Strikes
sentencing scheme, in whole or in part, and thus should be treated as though he had not
previously been convicted of one or more strike offenses. (Ibid.)
We review an order on a Romero motion for an abuse of discretion. (Williams,
supra, 17 Cal.4th at p. 162.) This review is guided by two fundamental precepts.
(People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).) First, the party challenging
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the sentence has the burden to clearly demonstrate the sentencing decision was arbitrary
or irrational. (Ibid.) Otherwise, we presume the trial court acted to achieve legitimate
sentencing objectives and will not set aside its discretionary determination to impose a
particular sentence. (Id. at pp. 376-377.) Second, we will not reverse a sentencing
decision merely because reasonable people may disagree. (Id. at p. 377.) “Taken
together, these precepts establish that a trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.”
(Ibid.)
“Because the circumstances must be ‘extraordinary . . . by which a career criminal
can be deemed to fall outside the spirit of the very scheme within which he squarely falls
once he commits a strike as part of a long and continuous criminal record, the
continuation of which the law was meant to attack’ [citation], the circumstances where no
reasonable people could disagree that the criminal falls outside the spirit of the three
strikes scheme must be even more extraordinary.” (Carmony, supra, 33 Cal.4th at
p. 378.)
The trial court’s denial of defendant’s Romero motion was not irrational or
arbitrary. The trial court considered all of the relevant factors in denying the motion,
including the seriousness of the prior strikes and defendant’s youth. The court also
considered the sophistication and violent nature of the prior strikes, the current offenses,
and his pending criminal charges involving violence while incarcerated. While defendant
claimed he acted in self-defense and M.R. intervened, both M.R. and L.H. sustained
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injuries. The serious and violent nature of the current offenses clearly supports the trial
court’s conclusion that defendant does not fall outside of the spirit of the Three Strikes
sentencing scheme. (See Williams, supra, 17 Cal.4th at p. 161.)
The trial court also reasonably relied on defendant’s prior criminal history. In
2001, defendant sustained four strike convictions when he was 19 years old, including
four counts of robbery in a single case. He was sentenced to state prison for those
offenses, and less than one year after being discharged from parole following that
commitment, defendant was convicted of aggravated assault and sent back to state prison.
Less than one year after being released on parole, defendant was convicted of another
strike offense—residential burglary—and he was sent to back to prison again. After
being released from prison, defendant committed several misdemeanor offenses,
including assaults while he was incarcerated for the current charges. Several charges,
including felony assault, remained pending at the time defendant was sentenced in this
case. Defendant’s extensive criminal history leading up to his incarceration for the
current offense demonstrates “he is the kind of revolving-door career criminal for whom
the Three Strikes law was devised.” (People v. Gaston (1999) 74 Cal.App.4th 310, 320
(Gaston).)
The circumstances of the current offenses also support the trial court’s denial of
defendant’s motion to strike his prior convictions. Defendant entered a barbershop and
punched the barber as he was cutting a child’s hair. After being forcibly removed,
defendant intentionally reentered the barbershop and escalated his violent conduct against
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L.H. and M.R. Defendant struck both L.H. and M.R. with a box cutter, and eventually
struck and cut a patron attempting to diffuse the situation. Defendant’s use of a weapon
and violence toward multiple victims show the danger he poses to society. Following the
current incident, defendant continued to commit violence while incarcerated, including an
assault using his waist chains on a fellow inmate, demonstrating prison has not deterred
him from continuing to commit crimes.
Defendant relies on his youth at the time of the offenses. According to the
probation report, defendant’s first strike offenses for four counts of robbery were
committed on May 18, 2007, when he was 19 years old.3 Defendant committed the fifth
prior strike offense for first degree burglary in July 2021 when he was 33 years old. He
committed the current offenses in December 2023 when he was 35 years old. We agree
that his youth was a relevant consideration, particularly in light of the “increasing
recognition that young adults are constitutionally different from adults for sentencing
purposes because of their diminished culpability and greater prospects for reform.”
(People v. Avila (2020) 57 Cal.App.5th 1134, 1141-1142 (Avila).) But given the
circumstances of the current offenses, defendant’s continued criminal conduct while
incarcerated on the current charges, and defendant’s criminal history, we cannot say that
the presence of youth as a factor rendered the trial court’s ruling unreasonable.
3 Defendant was born on May 1, 1988. In his motion to strike and at the
sentencing hearing in this case, defendant incorrectly stated that he was 17 years old or a
minor at the time he committed the 2007 robbery offenses. The probation report notes
that defendant had no juvenile adjudicated offenses and in his opening brief, defendant
admits that he had no juvenile criminal history. At the sentencing hearing, defendant
testified that he committed the four robberies in 2006 when he was a minor.
22
Moreover, defendant failed to demonstrate that he has made any effort at rehabilitation
while incarcerated. And the court considered these factors as evidenced by the court’s
decision to strike defendant’s prior serious felony convictions. Instead, the record reveals
defendant has been charged with multiple in-prison offenses since his conviction on the
current offenses. This undermines defendant’s suggestion that he has reformed his crime
committing ways and should be treated as a second strike offender.
To the extent defendant claims that the trial court did not properly consider the
remoteness of his prior strike convictions, we reject it. “The court is presumed to have
considered all of the relevant factors in the absence of an affirmative record to the
contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310; accord, People v. Edwards
(2022) 76 Cal.App.5th 523, 529; People v. Brugman (2021) 62 Cal.App.5th 608, 637.)
Rather, the court was aware of when the strike convictions occurred and considered
defendant’s youth at the time he committed his prior strike convictions. Nonetheless, the
court was permitted to consider, as it did, that defendant had a lengthy criminal history
with multiple violent offenses, including committing additional offenses in custody while
the current case was pending. The fact that his 2007 prior strike convictions for four
counts of robbery occurred 17 years ago from the current offenses and when defendant
was a youth did not necessarily take defendant out of the spirit of the Three Strikes Law.
(See People v. Vasquez (2021) 72 Cal.App.5th 374, 390 [“In analyzing whether a
defendant’s prior criminal conduct was ‘remote,’ a trial court should consider whether the
defendant ‘was incarcerated a substantial part of the intervening time and thus had little
23
or no opportunity to commit’ additional crimes.”]; see also Avila, supra, 57 Cal.App.5th
1134 at p. 1141 [“[T]he remoteness of prior strikes alone is not sufficient to take a
defendant out of the spirit of the Three Strikes law.”].)
Avila, a case relied upon by defendant, does not persuade us otherwise. In Avila,
the Court of Appeal concluded the trial court abused its discretion in denying the
defendant’s Romero motion. (Avila, supra, 57 Cal.App.5th at p. 1145.) The Avila court
concluded the defendant’s current offenses, which related in part to the defendant
smashing oranges, were not violent and “less reprehensible conduct” and “[m]uch of his
criminal conduct appear[ed] to be related to his drug addiction.” (Ibid.) The court also
found it significant that the defendant’s prior strikes were “remote and committed when
he was of diminished culpability based on his age,” in that he was under 21 years old.
(Id. at pp. 1141, 1145.)
Unlike in Avila, here, defendant was not “of diminished culpability” when he
committed his 2007 and 2021 prior strike convictions. Defendant was 19 years old,
according to the probation report, when he committed the 2007 robberies, 33 when he
committed the 2021 first degree burglary, and 35 when he committed the instant offenses.
And the majority of his prior convictions were not for conduct related to drugs, but rather
involved serious and violent felonies including robberies, residential burglary, and assault
by means of force likely to inflict great bodily injury. Moreover, the trial court expressly
considered defendant’s youth at the time of the prior strike convictions and found that it
was not a basis to strike those convictions given defendant’s consistent criminal behavior.
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Defendant’s present offenses involved an unprovoked violent attack upon two victims in
a barbershop while young children were present. Despite having been to prison for
serious and violent offenses before, and having been released on parole supervision,
defendant clearly failed to rehabilitate as demonstrated by repeatedly committing
criminal offenses, even while incarcerated. As previously noted, defendant is “the kind
of revolving-door career criminal for whom the Three Strikes law was devised.”
(Gaston, supra, 74 Cal.App.4th at p. 320.) Accordingly, Avila is inapposite.
To conclude, based on the record before this court, we find the trial court’s
decision not to dismiss defendant’s prior strike convictions was not “so irrational or
arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at
p. 377.) Even if we disagreed with the trial court’s ruling, our role is to determine
whether it abused its discretion, not to substitute its judgment with our own.
Accordingly, defendant has not demonstrated an abuse of discretion, and this claim lacks
merit.
C. Assembly Bill No. 600
Defendant also asserts guidance provided by the Legislature in Assembly Bill
No. 600 (2023-2024 Reg. Sess.) (Stats. 2023, ch. 446), requires the trial court to consider
the mitigating circumstances enumerated in section 1385, subdivision (c), in deciding
whether to strike a prior strike, and the matter must therefore be remanded to allow the
trial court to reconsider its decision not to strike his prior strike convictions.
25
In Romero, the California Supreme Court held that section 1385, subdivision (a),
permits a trial court “on its own motion to strike prior felony conviction allegations in
cases brought under the Three Strikes law.” (Romero, supra, 13 Cal.4th at pp. 529-530.)
“In 2021, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) . . . which
amended section 1385 to specify factors that the trial court must consider when deciding
whether to strike enhancements from a defendant’s sentence in the interest of justice.
(Stats. 2021, ch. 721, § 1.)” (People v. Sek (2022) 74 Cal.App.5th 657, 674, italics
added.) Section 1385, subdivision (c) now provides that “the court shall dismiss an
enhancement if it is in the furtherance of justice to do so” and that “the presence of one or
more [enumerated mitigating] circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the enhancement would endanger
public safety.” (§ 1385, subd. (c)(1), (2).)
The enumerated mitigating factors are: the punishment would result in a
discriminatory racial impact (§ 1385, subd. (c)(2)(A)); the case involves multiple
enhancements (§ 1385, subd. (c)(2)(B)); an enhancement could result in a sentence of
over 20 years (§ 1385, subd. (c)(2)(C)); the current offense is connected to mental illness
(§ 1385, subd. (c)(2)(D)); the current offense is connected to prior victimization or
childhood trauma (§ 1385, subd. (c)(2)(E)); the current offense is not a violent felony
(§ 1385, subd. (c)(2)(F)); the defendant was a juvenile when he committed the present or
triggering prior convictions (§ 1385, subd. (c)(2)(G)); the enhancement is based on a
prior conviction that is over five years old (§ 1385, subd. (c)(2)(H)); and any firearm used
26
in the current offense was inoperable or unloaded (§ 1385, subd. (c)(2)(I)). These
mitigating factors are not exclusive. (§ 1385, subd. (c)(4).)
Since these amendments, as defendant acknowledges, several courts have held that
section 1385, subdivision (c), does not apply to the trial court’s decision whether to strike
a prior strike, because the Three Strikes Law presents an alternative sentencing scheme,
which is different than an enhancement. (See People v. Serrano (2024) 100 Cal.App.5th
1324, 1328; People v. Olay (2023) 98 Cal.App.5th 60, 67; People v. Burke (2023) 89
Cal.App.5th 237, 242 (Burke).)
More recently, the Legislature passed Assembly Bill No. 600 to amend
section 1172.1. Section 1172.1 “provides an exception to the general rule that a trial
court has no jurisdiction to resentence a defendant after execution of the original
sentence, by authorizing a recall and resentencing procedure that may be invoked when,
for example, the Secretary of the Department of Corrections and Rehabilitation
recommends resentencing.” (People v. Dowdy (2024) 107 Cal.App.5th 1, 10 (Dowdy).)
Effective January 1, 2024, Assembly Bill No. 600 expanded this exception to allow a trial
court discretion to resentence a defendant on its own motion when “applicable sentencing
laws at the time of original sentencing are subsequently changed by new statutory
authority or case law.” (§ 1172.1, subd. (a)(1), as amended by Stats. 2023, ch. 446, § 2;
see Dowdy, at p. 10.)
As relevant here, in the uncodified preamble to Assembly Bill No. 600, the
Legislature found and declared: “(a) It is the intent of the Legislature that, in
27
resentencing proceedings pursuant to Section 1172.1 of the Penal Code, all ameliorative
laws and court decisions allowing discretionary relief should be applied regardless of the
date of the offense or conviction. [¶] (b) It is the further intent of the Legislature that
courts have full discretion in resentencing proceedings pursuant to Section 1172.1 of the
Penal Code to reconsider past decisions to impose prior strikes. The list of factors
considered in [Romero] is not exhaustive. Courts should consider Section 1385 of the
Penal Code, postconviction factors, or any other evidence that continued incarceration is
no longer in the interests of justice.” (Stats. 2023, ch. 446, § 1, para. (b).)
Defendant relies on the above uncodified preamble, suggesting that trial courts
should consider section 1385, in addition to the factors listed in Romero, when
resentencing a defendant pursuant to section 1172.1, to assert that trial courts must now
consider the mitigating factors enumerated in section 1385 whenever it considers whether
to strike a prior strike.
Whether the foregoing statement of intent in Assembly Bill No. 600 requires a trial
court to consider the mitigating factors enumerated in section 1385, subdivision (c),
whenever it considers whether to strike a prior strike is a question of statutory
interpretation that we review de novo. (Burke, supra, 89 Cal.App.5th at p. 242.)
At least two other courts have rejected similar arguments. (See Dowdy, supra, 107
Cal.App.5th at p. 9 [“We join the chorus of appellate opinions rejecting these
arguments”]; People v. Dain (2024) 99 Cal.App.5th 399, 410- 411, review granted
May 29, 2024, S283924.) As the court in Dowdy explained: “It is well established . . .
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that section 1385, subdivision (c) applies by its terms to a sentence ‘enhancement,’ but
not to a sentence derived from the alternative sentencing scheme of the Three Strikes
law.” (Dowdy, at p. 9.) “For several reasons, the uncodified legislative intent pertinent to
section 1172.1 does nothing to suggest that section 1385, subdivision (c) should apply
when considering whether to strike a prior conviction under the Three Strikes law,” when
resentencing under a provision other than 1172.1. (Dowdy, at p. 10.)
First, “Assembly Bill [No.] 600 explicitly limited its declaration of intent to
‘resentencing proceedings pursuant to Section 1172.1 of the Penal Code.’ (Stats. 2023,
ch. 446, § 1, subd. (b), italics added.) Nothing in Assembly Bill [No.] 600 indicates that
the declaration applies to all resentencings or all Romero motions.” (Dowdy, supra, 107
Cal.App.5th at p. 11.) Second, “Assembly Bill [No.] 600 expresses the Legislature’s
intent that trial courts have full ‘discretion’ to reconsider past decisions to impose prior
strikes, that the list of ‘factors’ in Romero not be exhaustive, and that courts should
consider section 1385 ‘or any other evidence that continued incarceration is no longer in
the interests of justice.’ ” (Dowdy, at p. 11, italics added.) “[I]t does not say that the
‘great weight’ afforded to mitigating circumstances under section 1385, subdivision (c)
should be applied in all Romero motions.” (Dowdy, at p. 11.) “Third, even if the
Legislature had harbored such an intent in drafting the uncodified preamble to
section 1172.1, as a matter of law, Assembly Bill [No.] 600 cannot apply the
section 1385, subdivision (c) mitigating factors to Romero motions in a way that alters
29
the operation of the Three Strikes law,” because doing so would improperly undermine a
voter initiative. (Dowdy, at p. 12.) We agree with the analysis in Dowdy.
“[T]he Legislature could have explicitly said that the more liberal treatment of
Romero motions it contemplated in judge-initiated recall under section 1172.1 applied to
all Romero hearings.” It did not. Defendant asserts it makes no sense for the Legislature
to impose a different standard for addressing Romero motions in the context of
section 1172.1 as opposed to all other pending (or past) Romero motions. We disagree.
Assembly Bill No. 600 addresses a very specific scenario, where the trial court, on its
own motion, wishes to recall a sentence it imposed because of subsequent changes to the
sentencing law. In that scenario, the Legislature has expressed an intent that the court
have significant discretion in reconsidering its prior sentencing decisions. Absent an
express statement from the Legislature, we decline to extend the statement of the
Legislature’s intent in that narrow context to apply to all cases in which judgment has not
yet become final.
Moreover, even if “the uncodified legislative intent in Assembly Bill [No.] 600
was sufficient to require the application of section 1385, subdivision (c) and its mitigating
factors to Romero motions under section 1172.75,” defendant has not demonstrated that
the trial court failed to consider any mitigating factor here. (See Dowdy, supra, 107
Cal.App.5th at p. 13.) The factors defendant identified are that the prior strike
convictions were more than five years old, that he was youthful when he committed four
of the prior offenses, and his sentence results in a sentence of over 20 years. Defendant
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also notes that he had untreated mental illness, substance abuse, and trauma in his
childhood. Defendant identified these factors in his Romero motion and pointed them out
during the sentencing hearing, and the trial court stated it had reviewed the Romero
motion and heard defendant’s statement and argument made by defense counsel.
However, as the trial court noted, he had multiple prior violent offenses and continued to
commit violent, serious and sophisticated offenses, even while incarcerated pending the
current case. The court also specifically stated it had “greatly” considered defendant’s
youth as a factor. Given the trial court’s comments on the record, we are not persuaded
that the trial court failed to consider the mitigating factors in declining to strike the prior
strike convictions.
For the foregoing reasons, we decline to remand the matter to the trial court for
resentencing based on the trial court’s discretion to strike the prior strike.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
FIELDS
J.
MENETREZ
J.
31