People v. Painia CA2/4 ( 2021 )

Filed 5/27/21 P. v. Painia CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301726
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA468072)
v.
MANUEL PAINIA
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Affirmed.
Lori A. Nakaoka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
Dissatisfied with repairs performed on his vehicle,
appellant Manuel Painia entered a repair shop and demanded a
refund from the shop owner, pointed a gun at him, threatened
him, then moved outside the shop and fired the gun into the air.
A jury convicted appellant on five counts arising from the
incident, including assault with a firearm and discharge of a
firearm. On appeal, appellant challenges the court’s sentencing
on the discharge count, arguing that the court erred in finding a
separate and distinct act for purposes of Penal Code section 654.1
He also contends the trial court failed to recognize its discretion
under the three strikes law to impose a concurrent sentence on
that count. Lastly, he argues that the court abused its discretion
in refusing to strike his prior strike convictions. We affirm.
PROCEDURAL HISTORY
An information filed in 2018 charged appellant with
assault with a semi-automatic firearm (§ 245, subd. (b); count
one), criminal threats (§ 422, subd. (a); count two), discharge of a
firearm with gross negligence (§ 246.3, subd. (a); count three),
possession of a firearm by a felon with four priors (§ 29800, subd.
(a)(1); count four), and unlawful possession of ammunition
(§ 30305, subd. (a)(1); count five2). The information further
alleged appellant personally used a firearm as to counts one and
two (§ 12022.5), suffered two prior serious or violent felony
convictions within the meaning of the three strikes law (§§ 667,
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The information omitted count five and designated the
unlawful possession of ammunition charge as count six. The trial
court later designated the count as count five for clarity during
trial.
2
subds. (b)-(j), 1170.12, subd. (b)), suffered two prior serious felony
convictions (§ 667, subd. (a)(1); counts one through three), and
served two prior prison terms (§ 667.5, subd. (b)).
Appellant’s first trial ended in a mistrial after the court
found the jury was deadlocked. On retrial, the jury found
appellant guilty as charged on all five counts and further found
true the allegation that appellant personally used a firearm.
Following a court trial on appellant’s prior convictions, the
court found true the allegations regarding appellant’s two prior
strike convictions. The court found the People failed to prove the
allegations regarding prior prison convictions under section
667.5, subdivision (b), and therefore struck them. The court
denied appellant’s Romero3 motion to strike his prior strikes.
The court sentenced appellant to a total of 56 years to life
in prison as follows: on count one, the court imposed the upper
term of nine years, tripled pursuant to section 667, subdivision
(e)(2)(a), plus four years for the firearm enhancement under
section 12022.5 to run consecutively, for a total of 31 years. On
count two, the court imposed a term of 25 years to life pursuant
to the three strikes law, plus four years for the firearm
enhancement. The court stayed the sentence on count two
pursuant to section 654. On count three, the court imposed a
consecutive term of 25 years to life pursuant to the three strikes
law. On each of counts four and five, the court imposed three-
year terms, doubled pursuant to section 1170.12, and stayed
pursuant to section 654. The court struck the five-year prior
conviction enhancements under section 667, subdivision (a) as to
counts one through three. Appellant timely appealed.
3People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3
FACTUAL BACKGROUND
I. Prosecution Evidence
Andre Francois owned an auto repair shop called Islander
Auto Repair, at the corner of West 46th Street and Western
Avenue in Los Angeles. He also owned the restaurant next door.
Francois testified that he had seen appellant two or three times
prior to the incident and worked on appellant’s car about two
months earlier. The morning of May 11, 2018, appellant came
into the shop. He was accompanied by Chris Thompson, whom
Francois knew because Thompson grew up down the street from
the shop. Francois testified that he first saw appellant that
morning riding in his motorized wheelchair, coming through the
alley behind the shop. Francois approached appellant at the
front of the shop, and appellant said that Francois owed him over
$800 and needed to pay him today. Appellant showed him a
receipt from car repairs done at another shop, stood up from the
wheelchair, and said, “I need my fucking money today, otherwise
I’m going to fuck up the shop.”
Francois smelled alcohol on appellant, so Francois told
appellant to “come back another time with the right state of mind
and we [sic] talk about this.” Appellant grew angrier and said,
“You [sic] going to fucking give me my money today or I’m going
to blow the motherfucker up.” Francois testified that he did not
pay attention to these statements; instead, he walked back into
the shop. Appellant continued to stand on the sidewalk,
swearing. Francois told another mechanic, “Don’t worry about it.
He’s drinking.” Appellant and Thompson left and Francois went
back to work.
Appellant returned about 10 to 15 minutes later. He was
again accompanied by Thompson, who was now on a bicycle.
4
Francois testified that he approached appellant and asked him
what happened. Appellant pulled a black handgun out of his
pocket, pointed it at Francois’s head, and said, “motherfucker, I
need my motherfucking money now. I’ll blow your fucking head
off.” Francois recalled that the gun was a few inches from him at
the time. Francois put his hands up and told appellant, “you
don’t have to do this.” Then Francois heard Thompson say
something to appellant, causing appellant to turn away. As soon
as this happened, Francois ran out of the shop, toward Western
Avenue.
When Francois got to the corner, he called 911. The
prosecution played the call for the jury, placed at 9:08 a.m. on
May 11, 2018. Francois told the 911 operator that a man in a
wheelchair pointed a gun at his head. As he continued to give
details of the incident, he told the operator that appellant was
“shooting right now!” When the operator asked who the assailant
was shooting at, Francois responded, “I don’t know,” and later
that he was shooting “at the cars.”
Francois testified that while he was on the phone with 911,
he could see appellant on the sidewalk “pointing the gun at
everything” and also pointing it back inside the shop. Francois
crossed 46th street and lost sight of appellant as he hid. When
he looked again, appellant was in front of the restaurant, moving
toward Western in his wheelchair, still holding the gun. Then
appellant raised his arm and fired the gun. As Francois
described the shooting, appellant was not pointing up in the air,
but was pointing across the street. The prosecution played
surveillance video from the auto shop that showed the assailant
firing into the air.
5
Francois saw appellant fire one shot. Afterward, he saw
Thompson take off running and appellant head toward the alley.
Francois then flagged down the police. He testified that he
believed people were walking on the street at the time of the
incident, and the nearby market was also open.
Two mechanics working that morning at the auto repair
shop also testified. Lavonne Phillips stated that he had seen
appellant come into the shop several times before. That day,
Phillips saw appellant come into the shop in his wheelchair,
seeming angry. Appellant was going up and down the sidewalk
in his “scooter wheelchair” yelling, “Andre, I want my $900.”
Phillips testified that appellant also threatened Francois.
Appellant was accompanied by Thompson; at one point, appellant
told Thompson, “Go get the gun.” Phillips saw Thompson walk
toward the alley, then return with a gun. Thompson passed the
gun to appellant and appellant said, “We gonna blast these
motherfuckers.”
Phillips hid toward the back of the shop when he heard
appellant say he was going to “blast” people; he also called 911.
In the 911 call, which was played for the jury, Phillips reported
that a man in a wheelchair pulled out a gun, and was
“threatening a guy.” Phillips also said that the man pointed the
gun and “threatened the guys here . . . say he gon’ shoot ’em.”
Phillips testified that from his hiding spot, he saw appellant and
Thompson leave the shop, heading toward Western Avenue.
Then Phillips heard a gunshot. He did not see who fired the gun,
he just saw people scatter.
Dougal Toney, Francois’s cousin, was also working at the
shop that morning. After he opened the shop that morning, he
saw appellant in the alley, holding a bottle of cognac. Later,
6
Toney saw appellant in the shop, in his wheelchair, approaching
Francois. Toney testified that he could not hear their
conversation.
After about a minute, appellant left, accompanied by
Thompson. They returned about five minutes later. Toney saw
that appellant was holding a file with papers and a handgun.
Appellant handed the papers to Francois, then said, “you going to
give me my money or take this gun.” Toney understood that
statement as a threat. He also saw appellant point the gun at
Francois’s face.
Toney testified that Francois walked away toward Western
Avenue. Then Toney heard appellant tell Thompson that he was
going to “light up the place.” Toney saw appellant and Thompson
moving toward Western Avenue. He saw appellant standing
near the edge of the shop and the restaurant; then appellant fired
the gun straight up in the air. Toney could not recall if there
were any pedestrians nearby at that time.
Officers from the Los Angeles Police Department responded
to the scene shortly after the shooting. Officer Gabriel Gonzales
testified that as he and his partner arrived, he saw a person
matching the description of the suspect (whom he identified as
appellant at trial) traveling down the street in a wheelchair. He
took appellant into custody. The officers did not find any
weapons on appellant or in the wheelchair.4 Gonzales then
proceeded to the corner and spoke to Francois, who pointed to
appellant and said, “hey, that’s him that shot.”
4Theofficers also found and detained Thompson about a
block away in the alley.
7
Gonzales testified that appellant appeared intoxicated at
the time of his arrest. Appellant was able to get out of the
wheelchair and walk, but his speech was slurred, his eyes were
red, and he smelled of alcohol.
Gonzales found a handgun in the alley behind the repair
shop. The ammunition inside the gun was the same type as a
spent shell casing he found on the sidewalk in front of the auto
repair shop. He also spoke to two mechanics inside the shop.
Gonzales did not see anyone else walking on that side of the
street during his investigation. He also noted that there was a
middle school across the street.
II. Defense Evidence
Appellant testified that his fiancée lived near the repair
shop and he had seen Francois around the neighborhood in the
past. Appellant paid the auto shop $1,600 to fix his car, but his
fiancée made all of the arrangements; he never dealt with the
shop directly. After they got the car back, it started having
problems right away. Appellant had the car fixed by another
shop, which cost $ 900. Although he was dissatisfied with the
repair, he claimed he never spoke to Francois or asked for his
money back. He also denied that he was at the shop on the day of
the incident.
Appellant acknowledged using a wheelchair at times
because of injuries to his knees. At the time he was arrested, he
was in his wheelchair on Western Avenue, coming from a
restaurant called Master Burger, heading back to his fiancée’s
place. He denied drinking that morning and claimed he did not
have a handgun. He also denied having any argument with
Francois, threatening anyone, or shooting a gun. He testified
that he was not the person pictured on the video shooting the
8
gun.
Appellant admitted that he was convicted of a felony in
1997. He was also convicted of felony domestic violence causing
injury in 2010, but testified that the conviction was overturned.
He was also convicted in 2016 of felony corporal injury to a
spouse with a prior conviction for the same offense.
DISCUSSION
I. Section 654
Appellant contends that the court should have stayed the
imposition of his sentence on count three, for discharge of a
firearm with gross negligence. He argues that count three was
committed with the same intent and objective as counts one and
two, and therefore the court violated section 654 by imposing a
separate sentence on count three. We disagree.
A. Background
During the sentencing hearing, the court indicated it
thought that counts one (assault) and two (threats) merged for
purposes of section 654, and that it saw “an issue” as to whether
count 3 (discharge of a firearm) also merged. The court stated it
was inclined to find that count three “was separate not only in
time but in intent because it seemed to be directed not toward
Mr. Francois but towards basically everyone in that area.”
Appellant’s counsel argued that “the whole course of
conduct . . . all related to this $800 or $900 that Mr. Painia felt he
was owed,” and that appellant shot into the air with the same
intent and objective “to still bring fear to the victim in order to,
hopefully, lead him to pay the money that Mr. Painia felt was
owed to him.” He also noted that it was “only a matter of
minutes” between the time that appellant pointed the gun at
Francois and threatened him (counts one and two), then walked
9
outside and fired into the air (count three). Thus, “in my reading
of this it still is a single course of conduct that Mr. Painia is
taking in order to recover that money.”
The prosecutor acknowledged that the firearm discharge
happened “just minutes after the threat and the assault with a
firearm,” but argued that after he was threatened, Francois “did
flee and seek cover and was no longer in the immediate vicinity.
And at that time Mr. Painia continued to threaten the other
employees. And, even though the victim was no longer in front of
him, then decided to negligently discharge the firearm. So, I do
think there is enough to distinguish them as not being from the
same course of conduct.” The court agreed with the prosecution,
finding that count three was “a separate and distinct act from
counts 1 and 2 and that there were separate objectives.”
B. Legal framework
Section 654, subdivision (a) provides in relevant part: “An
act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no
case shall the act or omission be punished under more than one
provision.”
The section precludes imposition of multiple punishments
for conduct that violates more than one criminal statute but
constitutes an indivisible course of conduct. (See People v.
Harrison (1989) 48 Cal.3d 321, 335; People v. Perez (1979) 23
Cal.3d 545, 551–552.) The purpose behind section 654 is “to
insure that a defendant’s punishment will be commensurate with
his culpability.” (People v. Perez, supra, 23 Cal.3d at p. 552.)
“‘Whether a course of criminal conduct is divisible and therefore
gives rise to more than one act within the meaning of section 654
10
depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.’”
(People v. Latimer (1993) 5 Cal.4th 1203, 1208, [Citation
omitted].)
If, on the other hand, a defendant harbored “multiple
criminal objectives,” which were independent of and not merely
incidental to each other, he may be punished for each statutory
violation committed in pursuit of each objective, “even though the
violations shared common acts or were parts of an otherwise
indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d
625, 639.)
Additionally, “a course of conduct divisible in time,
although directed to one objective, may give rise to multiple
violations and punishment. [Citations.]” (People v. Beamon,
supra, 8 Cal.3d at p. 639, fn. 11; see also People v. Kwok (1998) 63
Cal.App.4th 1236, 1253-1254.) This is particularly so where the
offenses are temporally separated so that the defendant had an
opportunity to reflect between offenses, so that the subsequent
offense represents a renewed intent as well as a new (and often
increased) risk of harm. (See People v. Kwok, supra, 63
Cal.App.4th at pp. 1255-1256.)
Whether section 654 “applies in a given case is a question
of fact for the trial court, which is vested with broad latitude in
making its determination. [Citations.] Its findings will not be
reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in
the light most favorable to the respondent and presume the
existence of every fact the trial court could reasonably deduce
from the evidence. [Citation.]” (People v. Jones (2002) 103
11
Cal.App.4th 1139, 1143; see also People v. Brents (2012) 53
Cal.4th 599, 618; People v. Osband (1996) 13 Cal.4th 622, 730;
People v. Williams (1992) 9 Cal.App.4th 1465, 1473.)
C. Analysis
Appellant contends that the court should have stayed the
sentence on count three under section 654 because that count
was “incident to the same objective shared by counts 1 and 2.” We
are not persuaded. The evidence supported the conclusion that in
committing counts one and two, appellant harbored the intent to
force Francois to refund his money. Appellant’s statements, as
related by all three direct witnesses to the incident, were
demands to return his money and threats to shoot if he was not
repaid. Both Francois and Toney testified that appellant made
these statements while pointing the gun directly at Francois.
Although appellant contends that he harbored the same
intent and objective when he fired his gun into the air outside the
shop, substantial evidence supports the court’s conclusion to the
contrary. After Francois ran from the shop, Toney testified that
he heard appellant tell Thompson that he was going to “light up
the place.” He then saw appellant move down the street and fire
the gun straight up in the air. Francois testified that after he ran
across the street and called 911, he saw appellant on the
sidewalk “pointing the gun at everything” before he fired one
shot. Phillips did not see appellant fire, but he heard appellant
tell Thompson, “We gonna blast these motherfuckers,” then saw
appellant move toward the street and heard the gunshot.
Appellant’s act of firing into the air was also captured on
surveillance video. This evidence supports the trial court’s
conclusion that, at the time he fired, appellant’s intent was no
longer directed at making demands from Francois. Thus,
12
appellant’s act of shooting into the air was done with a separate
objective and therefore not subject to section 654.
There was also substantial evidence to support the trial
court’s conclusion that the acts were divisible in time and
therefore separately punishable. Appellant argues that the
evidence showed at most the passage of a few minutes between
the assault and criminal threats at the auto shop and his later
discharge of the gun on the sidewalk. He contends this “slight”
passage of time was insufficient for purposes of section 654. But
the passage of a few minutes may be sufficient where, as here,
appellant performed separate acts and had sufficient time
between the acts for reflection.
For example, in People v. Trotter (1992) 7 Cal.App.4th 363,
367–368, the appellate court affirmed the imposition of
consecutive sentences where the defendant fired two shots about
a minute apart at a pursuing police car. The court found that the
defendant’s conduct “became more egregious with each successive
shot. Each shot posed a separate and distinct risk to [the officer]
and nearby freeway drivers.” (Id. at p. 368.) Moreover, the court
pointed out that the conduct at issue involved multiple volitional
acts, and that “[e]ach shot required a separate trigger pull . . .
separated by periods of time during which reflection was possible.
None was spontaneous or uncontrollable. ‘[D]efendant should . . .
not be rewarded where, instead of taking advantage of an
opportunity to walk away from the victim, he voluntarily
resumed his . . . assaultive behavior.’” (Ibid., quoting People v.
Harrison, supra, 48 Cal.3d at p. 338.)
Similarly, here, there was evidence that appellant
assaulted and threatened Francois in the front of the auto shop;
then, when appellant was distracted, Francois ran away.
13
Francois testified that he ran to the corner, called 911, crossed
the street and hid, and then saw appellant come down the street
and fire the gun. The other eyewitnesses also saw appellant leave
the shop and head down the street before the gunshot. Thus, the
two acts were sufficiently separate in time “to afford the
defendant opportunity to reflect and to renew his or her intent.”
(See Kwok, supra, 63 Cal.App.4th at pp. 1255-1256.) Moreover,
appellant’s act of shooting into the air on a public street, across
from a school, posed a separate and distinct risk from his earlier
conduct inside the repair shop, thereby justifying separate
punishment.
II. Mandatory Consecutive Sentencing under Section
667
Appellant contends that the trial court incorrectly held it
was required to impose consecutive sentences on counts one and
three pursuant to the three strikes law. We reach the merits
despite the Attorney General’s claim that appellant forfeited his
claim by not objecting in the trial court, because appellant also
raises a claim of ineffective assistance of counsel. We conclude
that the trial court did not have discretion to impose concurrent
sentences, and therefore affirm.
A. Sentencing under section 667
During sentencing, the court stated that it was imposing a
mandatory consecutive sentence on count three pursuant to the
three strikes law, specifically, section 667, subdivision (c)(7)
(§ 667(c)(7)). “When a defendant is sentenced under the three
strikes law (Pen. Code, § 667, subds.(b)-(i)) because he has
previously been convicted of one or more serious and/or violent
felony offenses (§ 667, subds. (b), (c)), the three strikes provisions
mandate that ‘[i]f there is a current conviction for more than one
14
felony count not committed on the same occasion, and not arising
from the same set of operative facts, the court shall sentence the
defendant consecutively on each count pursuant to [this
section].’” (People v. Lawrence (2000) 24 Cal.4th 219, 222–223
(Lawrence), quoting § 667, subd. (c)(6) (§ 667(c)(6)); see also §
667(c)(7) [providing that for current convictions of “more than one
serious or violent felony as described in paragraph (6), the court
shall impose the sentence for each conviction consecutive to the
sentence for any other conviction for which the defendant may be
consecutively sentenced in the manner prescribed by law”].)5
5Prior to the passage of Proposition 36, our Supreme Court
held that the trial court had discretion to impose concurrent
sentences for felonies committed on the same occasion or arising
from the same operative facts. (See People v. Hendrix (1997) 16
Cal.4th 508, 513-514 (Hendrix); Lawrence, supra, 24 Cal.4th at p.
223.) Proposition 36, approved by the voters in 2012, “amended
section 1170.12, subdivision (a)(7), which concerns consecutive
sentencing for multiple current serious and/or violent crimes, but
it did not make corresponding changes to the previously identical
statute, section 667, subdivision (c)(7).” (People v. Torres (2018)
23 Cal.App.5th 185, 197 (Torres).) The parties dispute whether
the discretion under Hendrix remained good law following the
passage of Proposition 36, or whether the court was also
mandated to impose consecutive sentences for serious or violent
felony convictions committed on the same occasion or arising from
the same set of operative facts. Our sister courts are split on this
question, which is currently before the California Supreme Court.
(See People v. Henderson (2020) 54 Cal.App.5th 612, 621, review
granted, Dec. 23, 2020 [holding that “Proposition 36 eliminated
the trial court’s discretion to impose concurrent sentences on
multiple current serious or violent felony convictions”]; but see
People v. Marcus (2020) 45 Cal.App.5th 201 [holding that court
15
The analysis appropriate for determining the application of
section 667, subdivisions (c)(6) and (7), is not coextensive with the
test for determining the application of section 654. (People v.
Deloza (1998) 18 Cal.4th 585, 591–595 (Deloza) [“Indeed, section
654 is irrelevant to the question of whether multiple current
convictions are sentenced concurrently or consecutively”].) The
California Supreme Court has explained: “We read the
mandatory consecutive-sentencing provision of the three strikes
law as follows: If there are two or more current felony
convictions ‘not committed on the same occasion,’ i.e., not
committed within close temporal and spacial proximity of one
another, and ‘not arising from the same set of operative facts,’
i.e., not sharing common acts or criminal conduct that serves to
establish the elements of the current felony offenses of which
defendant stands convicted, then ‘the court shall sentence the
defendant consecutively on each count’ pursuant to subdivision
(c)(6).” (Lawrence, supra, 24 Cal.4th at p. 233.)
B. Deloza and Lawrence
Appellant argues that the assault (count one) and
retains discretion]; People v. Gangel (2019) 42 Cal.App.5th 58[same]; People v. Buchanan (2019) 39 Cal.App.5th 385 [same];
Torres, supra, 23 Cal.App.5th 185 [same].) We need not reach
this issue, as we determine that the convictions here were not
committed on the same occasion and did not arise from the same
set of operative facts. They thus fall squarely within the
mandatory sentencing provisions of section 667(c). (See, e.g.,
Torres, supra, 23 Cal.App.5th at p. 201 [consecutive sentencing
mandate remains for “‘all felonies “not committed on the same
occasion, and not arising from the same set of operative facts’”
(§§ 667, subdivision (c)(6), 1170.12, subd. (a)(6))”].)
16
discharge of a firearm (count three) “were against a single victim
committed essentially in one location and arose from the same set
of operative facts.” He cites two California Supreme Court cases,
Deloza and Lawrence, which we agree are instructive.6
In Deloza, the defendant and an armed companion entered
a furniture store, took money from the cash register and from two
salespersons, and then from a customer who happened to walk up
while the robbery was in progress. (Deloza, supra, 18 Cal.4th at
p. 595.) The court found that the defendant’s “robberies were
committed in one location, and were apparently brief in duration.
They were committed essentially simultaneously against the
same group of victims, i.e., persons in the furniture store. . . .
Nor was there any other event that could be considered to
separate one ‘occasion’ of robbery from another.” (Id. at pp. 595-
596.) Thus, for purposes of the three strikes law, “[g]iven the
close temporal and spatial proximity of defendant’s crimes
against the same group of victims, they were clearly committed
on the ‘same occasion.’” (Ibid.)
The court reached the opposite conclusion in Lawrence,
supra, 24 Cal.4th 219. There, the defendant committed a theft in
a market, assaulted an individual while fleeing the scene, then
entered a residential backyard and assaulted two homeowners.
The court distinguished Deloza, reasoning, “[b]ecause the
defendant’s crimes in Deloza were committed in one location,
were brief in duration, and were committed essentially
simultaneously against the same group of victims, we had no
6Respondent did not address this argument in its brief, but
focused only on the issue of whether the court retained discretion
following Proposition 36.
17
difficulty concluding they were ‘committed on the same occasion.’”
(Id. at p. 227.) The crimes in Lawrence, by contrast, involved
“two separate locations (a market and a residence one to three
blocks away),” were committed “most likely within two or three
minutes” of each other, and included two entirely separate groups
of victims (the employees and a patron of the market, and [the
homeowners], who had no connection to the first crime).”
(Lawrence, supra, 24 Cal.4th at p. 228.)7 Thus, the court
concluded that the theft and the assaults in the backyard were
not committed on the “same occasion” for purposes of section 667.
(Id. at p. 229.)
The Lawrence court also considered the test for whether
offenses “arise from the same set of operative facts” under section
667. The court cited the analysis in People v. Durant (1999) 68
Cal.App.4th 1393 (Durant), where the defendant committed a
burglary and two attempted burglaries by walking around a
condominium complex and committing three crimes at three
different houses. As the Supreme Court explained, the appellate
court in Durant “found that the three crimes did not come within
the ‘same occasion/same operative facts’ exception despite the
fact that defendant had committed all the offenses at the same
general location (a housing complex), against what arguably
might be deemed the same group of victims (persons in the
housing complex whom he burglarized or attempted to
7The court distinguished Hendrix, supra, 16 Cal.4th 508 on
the same basis. (See Lawrence, supra, 24 Cal.4th at p. 228.) In
Hendrix, the defendant pointed a gun at four people seated at a
table and demanded their money. (Id. at p. 510.) He was
convicted of two counts of robbery and two counts of attempted
robbery. (Id. at p. 511.)
18
burglarize), and although the offenses occurred in succession
without intervening events. The Durant court emphasized that
the two attempted burglaries, by their nature and elements, were
completed before defendant committed the completed burglary,
and that the crimes did not occur on the ‘same occasion’ as that
term is commonly understood. Nor did the duration of the crimes
overlap, each being distinct and completed when defendant
attempted to enter or successfully entered a residence and then
left to go burglarize another residence.” (Lawrence, supra, 24
Cal.4th at p. 232, discussing Durant, supra, 68 Cal.App.4th at pp.
1396-1400.) Thus, “Durant suggests that the nature and
elements of the current charged offenses—for example, the extent
to which common acts and elements of such offenses unfold
together or overlap, and the extent to which the elements of one
offense have been satisfied, rendering that offense completed in
the eyes of the law before the commission of further criminal acts
constituting additional and separately chargeable crimes—are
additional factors the court must consider in determining
whether multiple current crimes arose from the ‘same set of
operative facts’ when the offenses are committed more than
seconds apart.” (Lawrence, supra, 24 Cal.4th at p. 233.)
Turning to the facts before it, the court in Lawrence found
that the defendant’s offenses did not arise from the same set of
operative facts: “Defendant’s initial crime was the shoplifting
theft of a bottle of brandy from a market. Although still in flight
from the crime scene, he thereafter chose to commit new and
different offenses: the trespass into the [residential] backyard,
and the ensuing assaults against [the homeowners]. The first
crime involved an act of theft directed at one group of victims, the
second involved assaultive conduct directed at an unrelated pair
19
of victims. The two criminal episodes were separated spacially by
at least one to three city blocks, and temporally by two to three or
more minutes . . . . [¶] On these facts we conclude that
defendant’s felony assault upon [one of the homeowners] did not
arise out of the ‘same set of operative facts’ as the theft from the
market.” (Lawrence, supra, 24 Cal.4th at pp. 233-234; see also
People v. Jenkins (2001) 86 Cal.App.4th 699, 706-707 [consecutive
sentencing mandatory where defendant assaulted first victim,
went downstairs to search for weapon, pushed away a bystander,
then returned upstairs to commit attempted murder of second
victim].)
C. Analysis
We find the facts of the instant case to be closer to
Lawrence than Deloza. Appellant committed the assault in the
auto repair shop by pointing a gun directly at Francois. The
evidence suggested that several minutes after Francois left,
appellant moved to the street and then toward the corner, where
he fired the gun into the air. Thus, the crimes were separated by
at least a few minutes and occurred in two separate locations.
Further, the second crime involved a different set of potential
victims, namely, all those at risk of appellant’s grossly negligent
discharge of his firearm on a public street. As such, we find that
the offenses were not committed on the same occasion for
purposes of section 667.
Similarly, we conclude that the offenses did not arise from
the same set of operative facts. Appellant’s contention that the
discharge was “a continuation” of the assault and threats because
appellant “continued his assault on Francois by following
Francois while shouting profanities at him and discharging his
firearm” is not supported by the evidence. Appellant completed
20
his assault against Francois before choosing to commit a “new
and different offense[ ]” by moving to the street and discharging
his gun. (See Lawrence, supra, 24 Cal.4th at p. 232; Durant,
supra, 68 Cal.App.4th at p. 1406, (“[W]here the elements of the
original crime have been satisfied, any crime subsequently
committed will not arise from the same set of operative facts
underlying the completed crime; rather such crime is necessarily
committed at a different time.”].) Further, there was no evidence
that once appellant moved to the street, he attempted to further
assault Francois, who testified that he was hiding. Thus, the
commission of the assault necessarily arose out of different
operative facts than those underlying the discharge offense. The
trial court was correct in finding that a consecutive sentence for
count 3 was mandated by the three strikes law.
III. Romero Motion to Strike Prior Strike Convictions
Appellant contends the trial court abused its discretion in
refusing to strike his prior serious felony “strike” convictions. We
find no abuse of discretion.
A. Background
Appellant filed a request to dismiss his prior strikes
pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. The
two strike convictions were for criminal threats (§ 422, subd. (a))
in 1996 and assault (§ 245) in 1997. He argued that other than
his strike offenses, his prior convictions were “mostly a record of
theft and drug abuse related misdemeanors,” except for a
conviction for domestic violence (§ 273.5, subd. (a)). He also
noted that his prior strikes were over 20 years old, the current
offenses were non-violent except for the firearm enhancement on
count two, and his “history indicates a presence of severe
substance addiction and several mental health issues for which
21
treatment is available and defendant is amenable.”
The People opposed, noting appellant’s 13 prior convictions
between 1990 and 2016, four of which were felonies. The
prosecution argued that the age of appellant’s strike convictions
was less material because in the intervening decades, appellant
“has been convicted of charges in nine other cases, including two
cases of felony domestic violence,” as well as “three DUIs, a theft
conviction, [and] two convictions for battery.”
At appellant’s sentencing hearing, the court acknowledged
that the prior strikes were “somewhat remote” in time, but stated
that it had to consider appellant’s entire criminal history. That
history included a 1990 misdemeanor conviction for unlawful
possession of a weapon, a 1990 misdemeanor conviction for
reckless driving, the prior strikes in 1996 and 1997, a 2004
misdemeanor conviction for driving under the influence (DUI), a
2004 misdemeanor conviction for battery, a 2007 misdemeanor
conviction for driving without a license, a 2008 misdemeanor
conviction for petty theft, a 2009 misdemeanor conviction for
battery, a 2010 felony conviction for domestic violence,8 DUI
misdemeanor convictions in 2013 and 2014, and a 2016 felony
conviction for domestic violence, for which appellant was on
probation at the time of instant offenses. In light of this
8Appellant informed the court during trial that his 2010
domestic violence conviction had been overturned on appeal. The
court noted that the case was not included in the probation
report. Appellant admitted only the 2016 conviction at trial for
the purposes of counts four and five (possession with prior felony
convictions). Appellant does not contend that the court
erroneously relied on this conviction in denying his Romero
motion.
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“continuous history of criminal behavior, including violent
offenses,” the court found that appellant was not outside the
spirit of the three strikes law.
The court agreed that there was “certainly some indication
on the record of alcohol abuse,” but stated, “I don’t see any
evidence of mental health issues present here. And I don’t think
whatever the alcohol abuse that exists justifies the relief that
[appellant is] requesting.” The court continued: “And, of course,
I’m looking at circumstances of [the] particular offense where he
has the perception where there’s a debt of about $900. And
instead of dealing with that through the legal system or even
going and speaking to the gentleman about the debt, he
essentially goes to the location early in the morning verbally
harassing the individuals there. And then obtains a firearm.
Points it at the owner of the location and threatens him. And
then, subsequently, shoots into the air one block away from an
elementary school.”
The court then stated: “Added on top of that is the fact that
he chose to testify in this case. His testimony was completely not
believable and the jury rejected it very quickly, so I think I have
to take that into account as well. I don’t see any evidence of any
remorse or any accountability.” The court concluded that
“[b]ased upon the totality of factors, I don’t think [appellant] is
within that category of people who should be granted relief under
Romero. So, the motion to strike the prior convictions is denied.”
B. Legal framework
A trial court has discretion under section 1385, subdivision
(a) to “strike or vacate an allegation or finding under the three
strikes law that a defendant has previously been convicted of a
serious and/or violent felony” in furtherance of justice. (People v.
23
Carmony (2004) 33 Cal.4th 367, 373.) When evaluating whether
a prior conviction should be stricken pursuant to Romero, a trial
court must consider whether the defendant falls outside the
“spirit” of the three strikes sentencing scheme by looking to the
nature and circumstances of the present offense of conviction; the
nature and circumstances of prior serious or violent felony
convictions; and the particulars of the defendant’s background,
character, and prospects. (People v. Williams (1998) 17 Cal.4th
148, 161 (Williams).)
The three strikes law “creates a strong presumption that
any sentence that conforms to [its] sentencing norms is both
rational and proper.” (Carmony, supra, 33 Cal.4th at p. 378; see
also People v. Myers (1999) 69 Cal.App.4th 305, 310 [“Where the
record demonstrates that the trial court balanced the relevant
facts and reached an impartial decision in conformity with the
spirit of the law, we shall affirm the trial court’s ruling, even if
we might have ruled differently in the first instance”].)
We review for abuse of discretion a trial court’s decision not
to dismiss a prior felony conviction allegation under section 1385.
(Carmony, supra, 33 Cal.4th at p. 373.) In applying this
deferential standard, we ask “whether the ruling in question
‘falls outside the bounds of reason’ under the applicable law and
the relevant facts.” (People v. Williams, supra, 17 Cal.4th at p.
162, quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
“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
24
the criminal falls outside the spirit of the three strikes scheme
must be even more extraordinary.” (Carmony, supra, 33 Cal.4th
at p. 378.)
C. Analysis
The trial court did not abuse its discretion in denying
appellant’s Romero motion. The court properly weighed and
considered the evidence regarding appellant’s criminal history,
the nature and circumstances of his current offenses, and the
potentially mitigating factors of alcohol abuse and mental health
issues. In particular, the court found that the remoteness of the
prior strikes (also convictions for assault and criminal threats)
was countered by appellant’s continuous criminal history
following those convictions. Between 2004 and 2016, appellant
suffered eight convictions, the last of which was a violent felony
for which appellant was on probation at the time of the current
offenses. We reject appellant’s contention that he had a “non-
violent and non-serious record.” The court was well within its
discretion to conclude that appellant’s “continuous history of
criminal behavior, including violent offenses,” over the past two
decades brought appellant within the spirit of the three strikes
law. (See People v. Leng (1999) 71 Cal.App.4th 1, 14 [“The well-
recognized purpose of the three strikes law is to provide increased
punishment for current offenders who have previously committed
violent or serious crimes and have therefore not been
rehabilitated or deterred from further criminal activity as a
result of their prior imprisonment.”]; see also Williams, supra, 17
Cal.4th at p. 163 [finding that the defendant’s lengthy criminal
history indicated that he “‘had been taught, through the
application of formal sanction, that [such] criminal conduct was
unacceptable—but had failed or refused to learn his lesson’”].)
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The court also weighed heavily the circumstances of
appellant’s current offenses. As the court explained, based on a
disagreement over a $900 debt, appellant verbally harassed the
auto shop employees, retrieved a gun, pointed it at Francois and
threatened him. Appellant then fired his gun into the air on a
public sidewalk, one block from an elementary school. In
addition, the court considered the evidence of appellant’s history
of alcohol abuse, but did not find it outweighed the other factors
present. The court rejected the contention that appellant also
suffered from mental health issues, finding that claim
unsupported by the evidence. Appellant does not cite any
evidence to the contrary.
Appellant argues that the court improperly relied on a
finding that appellant’s trial testimony was not believable and
was rejected by the jury. We are not persuaded that the trial
court acted improperly. The court’s statements regarding
appellant’s lack of credibility at trial were directly followed by the
court’s finding that appellant lacked “any remorse or any
accountability.” Appellant does not dispute that the court could
properly consider a lack of remorse by appellant. (See People v.
Bemore (2000) 22 Cal.4th 809, 854.)
Moreover, the case cited by appellant, People v. Howard
(1993) 17 Cal.App.4th 999 (Howard), is inapposite. Howard did
not involve a court’s discretion to reduce a sentence by striking a
prior conviction. There, the court held that in order to impose an
increased sentence on the ground the defendant committed
perjury at trial, the trial court was required to make on-the-
record findings as to all the elements of a perjury violation. (Id.
at p. 1004.)
26
In sum, appellant’s argument that the trial court should
have weighed certain factors more heavily than others does not
establish an abuse of discretion. Because the trial court properly
“‘balanced the relevant facts and reached an impartial decision in
conformity with the spirit of the law’” (Carmony, supra, 33
Cal.4th at p. 378), its determination was not in error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
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