People v. Radloff CA4/1 ( 2021 )

Filed 1/27/21 P. v. Radloff CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075891
Plaintiff and Respondent,
v. (Super. Ct. No. SCN370158)
JAMIE NICHOLE RADLOFF et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of San Diego County,
Carlos O. Armour, Judge. Affirmed.
Michael Bacall, under appointment by the Court of Appeal, for
Defendant and Appellant Jamie Nichole Radloff.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for
Defendant and Appellant Hector Samuel Galvez.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Jamie Nichole Radloff and Hector Samuel Galvez, Jr.
of first degree murder (Pen. Code,1 § 187, subd. (a); count 1); and robbery
(§ 211; count 2). With respect to both counts, the jury found true allegations
that Galvez intentionally and personally discharged a firearm (§ 12022.53,
subd. (d)) and that Radloff was a principal who was vicariously liable
(§ 12022, subd. (a)(1)). The jury also convicted Galvez of possessing a firearm
as a prohibited person (§ 29800, subd. (a)(1); count 3). Galvez subsequently
admitted a prior offense that constituted both a strike prior and a serious
felony prior.
The court sentenced Radloff to 25 years to life for count 1 plus a
consecutive one-year term for the special allegation. Under section 654, the
court stayed Radloff’s sentence on count 2 as well the special allegations
related to that count.
The court sentenced Galvez to 50 years to life on count 1 (25 years to
life, doubled due to the strike prior), plus an additional term of 25 years to
life for the firearm allegation and an additional five-year term for the serious
felony prior. Per section 654, the court stayed Galvez’s sentence as to the
remaining counts and true findings.
Both Radloff and Galvez timely appealed.
Radloff claims the trial court prejudicially erred by responding to the
jury’s question by providing language from CALCRIM No. 1603. She also
contends there was insufficient evidence to convict of murder under the
felony murder rule. We conclude neither contention has merit.
Galvez argues the matter must be remanded to allow the court the
option of striking his serious felony prior conviction under Senate Bill
No. 1393 (2017-2018 Reg. Sess.). However, Senate Bill No. 1393 was in effect
1 Statutory references are to the Penal Code unless otherwise noted.
2
at the time Galvez was sentenced, and he did not ask the court to strike his
prior under that provision. As such, he forfeited his objection here.
Moreover, on the record before us, we do not conclude that Galvez has carried
his burden in showing he received ineffective assistance of counsel.
Finding the arguments raised by Radloff and Galvez unpersuasive, we
affirm the judgments.
FACTUAL BACKGROUND
Prosecution
Radloff was a drug user who sometimes prostituted herself for drugs or
for money to buy drugs. Her boyfriend, Galvez, was a drug user and dealer.
Radloff also bought or was given drugs from Joel B., who was like an uncle to
Radloff, and although they were not related, they enjoyed a very close
relationship.
Despite considering each other family, Joel and Radloff occasionally
had sex, with Joel providing money or drugs to Radloff as part of the activity.
About a year before Joel was killed, he had asked Radloff to have sex for
money with two of his friends. However, when Radloff arrived for the
encounter, she discovered that she was supposed to have sex with Joel and
his friend. Joel and Radloff had sex multiple times after that experience.
The night before the shooting, Radloff and Galvez tried contacting Joel
to arrange a meeting. Between 8:00 p.m. and 10:00 p.m., Radloff and Galvez
went to Joel’s trailer and to his ex-girlfriend’s house, looking for him. Radloff
had previously told Joel’s ex-girlfriend about her sexual involvement with
Joel. While Radloff and Galvez were at the ex-girlfriend’s house, the ex-
girlfriend told Radloff that she had confronted Joel about his sexual
relationship with Radloff. Radloff was upset by this news because she did not
want to discuss her relationship with Joel in front of Galvez.
3
Around 10:00 p.m. that same evening, Radloff texted Joel, purportedly
looking for drugs. Joel texted back, asking Radloff who she was with.
Although Radloff was with Galvez, she lied to Joel and said that she was with
a female friend. During their text exchange, Joel confronted Radloff, asking
her why she had told Joel’s ex-girlfriend that Joel and another man had sex
with Radloff, but Radloff was “saying no the whole time.”
About an hour later, around 11:00 p.m., Joel met Radloff (who was with
Galvez) outside of Joel’s girlfriend’s apartment complex in Oceanside. They
talked outside for about 10 minutes. Radloff told Joel she wanted to buy a
quarter pound of methamphetamine. Joel was upset that people were talking
about his sexual relationship with Radloff, but he agreed to meet his supplier
to get the drugs. When Joel came back inside, he asked to borrow his
girlfriend’s car to go buy drugs.
Shortly after 11:00 p.m., Joel drove to his supplier and picked up a
quarter pound of methamphetamine. He agreed to pay $800 for the drugs,
but he did not pay for them up front. Joel told his supplier that he was
planning to meet up with Radloff later. Joel was upset and told his supplier
there were “rumors” about Joel and Radloff having a sexual relationship.
After meeting with Joel, Radloff and Galvez drove back to Hemet.
Around that same time, Galvez advertised on social media that he had a gun
for sale. They then drove back to Oceanside, arriving just before 4:00 a.m.
Joel was not there yet; so, Radloff and Galvez went into a convenience store
to buy food and cigarettes. A few minutes later, Joel arrived back in
Oceanside to meet with Radloff. He called his girlfriend to tell her he was
back, but that he had to quickly meet with his niece before returning inside.
Joel met with Radloff and Galvez by Galvez’s car. According to Radloff, Joel
told them that he had a quarter pound, but could only sell Radloff and Galvez
4
one ounce. Joel said that he could get more from his supplier; he began
calling her repeatedly, but she did not answer. He then sent his supplier a
text message, asking, “Can you get me another one?” A few minutes later,
Galvez took out his gun and pointed it at Joel, demanding money and drugs.
When Joel responded, “Fuck you,” Galvez shot Joel three times—once in the
stomach, once in the buttocks, and once in the arm. Joel fell to the ground,
screaming in pain and for help.
As Joel lay in the street, groaning in pain, Radloff started to slowly
drive away. Radloff then turned the car around, pulled up by Joel for 10 or
15 seconds, then drove away again. About an hour and a half after the
shooting, Galvez bragged on social media about robbing someone for drugs.
After hearing the gunshots, bystanders living in the apartment
complex came outside to help. They saw Joel laying in the street, trying to
crawl toward the side of the road. One of the bystanders asked what had
happened, and Joel responded that his niece’s boyfriend had shot him.
When police arrived at the scene, Joel was laying in the street
screaming in pain and gasping for air. Loose methamphetamine was
scattered in the street as was the trash and food wrappers from the items
Radloff and Galvez had purchased from the convenience store. When police
asked Joel who had shot him, he stated, “My niece knows who did it.” Joel
lost consciousness shortly after the paramedics arrived at the scene. He died
at the hospital soon after.
During their investigation into Joel’s murder, police viewed
surveillance footage from the nearby convenience store and saw Radloff and
Galvez purchasing the items that were later found littered near Joel’s body.
Using cell phone data, police located Radloff and Galvez at a motel in Hemet.
5
An officer watching the motel saw Radloff leave the motel on foot and Galvez
drive away in his car. Radloff and Galvez were separately arrested by police.
Police searched Galvez’s car and found a gun in a hidden compartment.
Ammunition for the gun as well as Galvez’s cell phone was found inside the
car. Galvez also had $1,184 cash on his person. A BB Airsoft pistol, an
additional BB gun, BBs, and 9.2 grams of methamphetamine were found in
Radloff’s property. Subsequent DNA analysis found very strong support for
inclusion of Galvez as a contributor to DNA found on the gun used in the
shooting and limited support for exclusion of Radloff as a contributor.
When Radloff was arrested, she had methamphetamine on her that
was in larger pieces, consistent with the type of methamphetamine that a
dealer would have access to as opposed to a user. When Radloff was first
interviewed by police, she initially denied that she or Galvez had any
involvement in Joel’s death. She discussed her relationship with Joel and
told police that Joel was upset with her for telling his ex-girlfriend about
their sexual relationship. She claimed that Joel had raped her when she was
11 years old.
According to Radloff, although Joel was “addicted” to her and wanted to
have sex with her often, he denied it to other people and would speak badly
about Radloff. Radloff claimed Joel was a gang member and alleged that he
would get in trouble with his gang for having sex with Radloff. Later in the
interview, Radloff described Joel as “vicious” and “a beast.” She knew that he
carried weapons on him like handguns, knives, and crowbars.
About midway through her interview, Radloff changed course and
claimed that she had been the one to shoot Joel. She stated that she and Joel
had gotten into an argument about their sexual involvement. She admitted
that when she told Joel’s ex-girlfriend about her sexual involvement with
6
Joel, she would “eventually . . . have to bite that bullet.” Radloff said that she
told Joel that it made her feel bad to have sex with him, but he told her that
she was not his “real” niece and they were not related by blood. She also
stated that Joel was upset that Radloff had brought Galvez with her to the
meetup; he thought she would be alone. Radloff said that she shot Joel
during their argument. She told the police that the gun she used to kill Joel
belonged to her. She took full responsibility for the shooting, telling police,
“I’m responsible (unintelligible) what happened. It’s my fault. Because . . . I
brought the gun, it’s my uncle, we’re arguing and fighting.”
Referring to Galvez, Radloff stated, “He doesn’t know what . . . is going
on. He doesn’t know that me and my uncle have this sick quarrel of drug and
money and sex, and he don’t even use dope. He’s just . . . there and we’re in
his car and . . . I just felt like I just put all of us in a bad, bad position.”
However, later Radloff seemed to waver somewhat when police insisted
that evidence pointed to Galvez as the shooter. Although she never told
police that Galvez was the shooter, she eventually stated that Galvez had
stayed in the car and that, “Shots were fired from inside the car.”
During a brief subsequent conversation with the officers, Radloff
denied shooting Joel.
Defense
At trial, Radloff testified in her defense. She claimed that she was
“shocked” and “surprised” when Galvez shot Joel. She testified that after
Galvez shot Joel, he pointed his gun at Radloff and told her to “drive.” She
was too scared of Galvez to get out of the car to try and help Joel. Radloff
claimed that when they got back to Hemet, they checked into a motel room,
and Galvez told her that she needed to “take responsibility” for shooting Joel.
Galvez allegedly told her that if she did not, he was going to “visit [her]
7
family.” Radloff claimed that when her sister called on the phone, Galvez
made Radloff tell her that she had shot Joel. She was afraid to leave the
motel room, even while Galvez was taking a shower, because she was fearful
of what Galvez would do to her family.
On cross-examination, Radloff admitted to knowing that drug dealing
was a dangerous business, and that it was unlikely for a drug dealer to sell
drugs to someone (such as Galvez) that he did not know. She also admitted
to knowing that Joel was not the type of person who would be taken
advantage of and that she knew that Joel would fight back if necessary.
DISCUSSION
I
JURY INSTRUCTIONS
A. Radloff’s Contentions
Radloff contends the trial court committed prejudicial error when it
responded to a question from the jury seeking clarification as to when the
requisite intent for robbery must be formed. The court responded to the
question by providing the jury with a modified version of CALCRIM
No. 1603. Radloff argues the instruction allowed the jury to wrongly convict
her of felony murder, even if she only formed the intent to aid and abet the
robbery after Galvez shot the victim.
B. Background
Before closing arguments, among other things, the jury was instructed
on the general principles of aiding and abetting. (CALCRIM Nos. 400, 401.)
Specifically, the jury was instructed that to find a defendant guilty as an
aider and abettor, the prosecution needed to prove that (1) the perpetrator
committed the crime; (2) the defendant knew that the perpetrator intended to
commit the crime; (3) before or during the commission of the crime, the
8
defendant intended to aid or abet the perpetrator in committing the crime;
and (4) the defendant’s words or conduct did, in fact, aid and abet the
perpetrator’s commission of the crime. (CALCRIM No. 401.) The jury was
instructed that these principles of aiding and abetting did not apply to felony
murder. (CALCRIM Nos. 400, 401.)
With respect to the murder charge, the jury was instructed that Radloff
and Galvez were prosecuted under three separate theories of first degree
murder, each of which had different requirements. (CALCRIM Nos. 548,
521.) The jury was told that the requirements for felony murder were set
forth in CALCRIM No. 540, and it received such instructions.
With respect to robbery, the jury was instructed that the perpetrator
needed to have used force or fear to take the victim’s property, and that the
perpetrator’s intent to take the property must have been formed before or
during the time that he or she used force or fear. (CALCRIM No. 1600.) The
jury was told that if the perpetrator did not form the intent to take the
property until after the use of force or fear, no robbery was committed. (See
ibid.)
During deliberations, the jury sent the court a note with respect to
Radloff’s culpability for robbery:
“We need clarification on the law in this case via the
following question [¶] Radloff: What are our options on
assigning guilt to Radloff should we not agree on intent or
foreknowledge where the robbery is concerned? What is
her culpability?”
The note then instructed the trial court to see paragraph 10 of Penal Code
section 211 and asked, with respect to that paragraph: “What is the time
span of ‘during’ in this paragraph (Beginning and End) and Radloff’s
culpability by the letter of the law?”
9
The trial court and the attorneys discussed how to respond to the jury’s
questions. The court stated the jury was likely confused because the
paragraph of the robbery instruction mentioned in the note explained that
the perpetrator’s intent to take property must be formed before or “during”
the use of force or fear, while the felony murder instruction provided that a
robbery continues until the defendant reaches a place of temporary safety.
The prosecutor asserted that the timing of when an aider and abettor
forms the requisite intent to aid and abet is different as to guilt for felony
murder and guilt for robbery. As to felony murder, an aider and abettor must
form the intent to aid and abet before the perpetrator uses force. But, as to
robbery, an aider and abettor who intends to aid and abet in the asportation
or flight (after the use of force or fear) may still be found guilty of robbery.
The prosecutor pointed out that the jury had not been instructed with
CALCRIM No. 1603, which explains the requisite intent of an aider and
abettor to robbery.
The trial court agreed and suggested providing the jury with CALCRIM
No. 1603. Radloff’s trial counsel as well as Galvez’s trial counsel both
expressed concern that although CALCRIM No. 1603 applied to the
substantive robbery offense, it did not apply to felony murder and should not
be used by the jury as to the murder count. In response, the court pointed
out that the jury’s note did not mention felony murder. The court also
suggested explicitly limiting the instruction’s applicability to count 2, the
robbery count.
Counsel for Radloff stated that he would like the opportunity to explain
to the jury the distinction between liability for aiding and abetting a robbery
and liability for felony murder. He also stated that his preference would be
not to instruct the jury with CALCRIM No. 1603, but, instead, to tell them
10
that the intent must be formed before or during the use of force, and to apply
the ordinary definition of “during.”
To address the parties’ concerns, the trial court suggested instructing
with CALCRIM No. 1603, but explicitly telling the jury to apply the
instruction to aider and abettor liability for count 2 only and not to the felony
murder theory of murder. The prosecutor agreed. Radloff’s trial counsel
maintained that there was still a risk that the jury would wind up improperly
applying the instruction as to felony murder by using CALCRIM No. 1603 as
to robbery and then going on to improperly conclude that a robbery had been
committed as to the felony murder analysis.
The trial court reiterated that the jury’s question did not reference any
confusion as to the felony murder count. Ultimately, the trial court provided
the jury with the following response:
“DO NOT USE THIS INSTRUCTION AS TO FELONY
MURDER
“To be guilty of Robbery as set forth in Count 2 as an aider
and abettor, the defendant must have formed the intent to
aid and abet the commission of the robbery before or while
a perpetrator carried away the property to a place of
temporary safety. ¶ A perpetrator has reached a place of
temporary safety with the property if he or she has
successfully escaped from the scene, is no longer being
pursued, and has unchallenged possession of the property.
¶ See CALCRIM 540(a) and 540(b) for separate
instructions on felony murder.”
Later, after further deliberation, the jury sent out the following note:
“Based on the way we read the instructions to the jury . . . (540B) [¶] Once
we have agreed to Ms. Radloff’s guilt in the ROBBERY[,] are we committed to
finding her guilty of [first] degree murder OR can we choose [second] degree.”
11
The trial court responded by telling the jury that if it found the
defendant guilty of felony murder under either CALCRIM No. 540A or 540B,
it was murder in the first degree.
C. Analysis
Radloff contends that the trial court prejudicially erred in instructing
the jury under CALCRIM No. 1603 because it allowed the jury to find that
she was guilty of felony murder even if she did not aid and abet in the
robbery until after Joel was shot. Radloff is mistaken.
To be guilty of felony murder, an accomplice must assist or encourage
the commission of the underlying felony before the principal kills the victim.
(People v. Pulido (1997) 15 Cal.4th 713, 726 (Pulido).) Thus, to be guilty of
felony murder, Radloff must have intended to commit, or aid and abet the
felony robbery of Joel before or at the time Joel was shot. (People v.
McDonald (2015) 238 Cal.App.4th 16, 22-23, 25-26 (McDonald).) As we shall
explain, the jury was so instructed.
The jury was instructed on felony murder, actual killer, in the language
of CALCRIM No. 540A in pertinent part as follows:
“The defendant is charged in Count 1 with murder, under a
theory of felony murder. [¶] To prove that the defendant is
guilty of first degree murder under this theory, the People
must prove that: [¶] 1. The defendant intended to commit
or attempted to commit a robbery; [¶] 2. While committing
or attempting to commit the robbery a defendant caused
the death of another person; [¶] 3. The defendant was the
actual killer [¶] The person who actually killed, may be
guilty of felony murder even if the killing was
unintentional, accidental or negligent. [¶] To decide
whether the defendant committed or attempted to commit
Robbery, please refer to the separate instructions that I
will give you on that crime. You must apply those
instructions when you decide whether the People have
proved first degree murder under a theory of felony
12
murder. [¶] The defendant must have intended to commit
the felony of Robbery before or at the time that he or she
caused the death. [¶] The crime of Robbery continues until
a defendant has reached a place of temporary safety. [¶] It
is not required that the person die immediately, as long as
the act causing death occurred while the defendant was
committing the felony.” (CALCRIM No. 540A.)
The jury also was instructed on felony murder, another person causes
death, in the language of CALCRIM No. 540B, in relevant part, as follows:
“The defendant may also be guilty of murder, under a
theory of felony murder, even if another person did the act
that resulted in the death. I will call the other person the
perpetrator. [¶] To prove the defendant is guilty of first
degree murder under this theory, the People must prove
that: [¶] 1. The defendant committed or attempted to
commit or aided and abetted a robbery; [¶] 2. The
defendant intended to commit or intended to aid and abet
the perpetrator in committing the robbery; [¶] 3. If the
defendant did not personally commit or attempt to commit
robbery, then a perpetrator, whom the defendant was
aiding and abetting committed to attempted to commit a
robbery; [¶] 4. While committing or attempting to commit
robbery, the defendant or perpetrator caused the death of
another person. [¶] 5. The defendant’s participation in the
robbery began before or during the killing; [¶] AND [¶]
6a) The defendant was not the actual killer, but, with the
specific intent to kill, the defendant aided, abetted,
counseled, commanded, induced, solicited, requested or
assisted the actual killer in the killing; [¶] OR [¶] 6b) The
defendant was a major participant in the robbery AND
when the defendant participated in the robbery he or she
acted with reckless indifference to human life.”(CALCRIM
No. 540B.)
The jury was further instructed under CALCRIM No. 540B that to
determine whether the defendant and the perpetrator committed or
attempted to commit robbery, and to determine whether the defendant aided
and abetted the commission of robbery, it should refer to the separate
13
instructions on those topics. (See CALCRIM No. 540B.) The instruction also
stated that “[t]he defendant must have intended to commit or aid and abet
the felony of Robbery before or at the time that he or she caused the death.”
(See CALCRIM No. 540B.)
Notwithstanding the above instructions, Radloff contends that
CALCRIM No. 1603 allowed the jury to find her guilty of felony murder even
if she did not aid and abet in the robbery until after Joel was shot. The jury
was instructed in the language of CALCRIM No. 1603 as follows: “To be
guilty of robbery as an aider and abettor, the defendant must have formed
the intent to aid and abet the commission of the robbery before or while a
perpetrator carried away the property to a place of temporary safety.” In
addition, the court modified CALCRIM No. 1603 to instruct the jury that it
could not use the instruction to convict Radloff of felony murder and
specifically referred the jury to CALCRIM Nos. 540A and 540B for felony
murder.
Radloff was charged with aiding and abetting the robbery of Joel. In
People v. Cooper (1991) 53 Cal.3d 1158, 1170, our Supreme Court held that
when a defendant is charged with aiding and abetting a robbery, the court
has a sua sponte duty to instruct the jury that “the commission of the crime
of robbery is not confined to a fixed place or a limited period of time and
continues so long as the stolen property is being carried away to a place of
temporary safety.” Thus, arguably, the trial court was required to instruct
the jury in the language of CALCRIM No. 1603. In this case, it only did so
when the jury expressed confusion as to the timing of Radloff’s intent as it
related to the robbery.
As Radloff points out, the bench notes to CALCRIM No. 1603 caution,
“Do not give this instruction if the defendant is charged with felony murder.”
14
(Bench Notes to CALCRIM No. 1603 (2020) p. 1139.) Bench notes, however,
do not have the force of law (see McDonald, supra, 238 Cal.App.4th at p. 26),
and no authority is cited in support of the note. In any event, we reject
Radloff’s assertion that CALCRIM No. 1603 conflicts with CALCRIM
Nos. 540A and 540B as given in this case. CALCRIM Nos. 540A and 540B
specifically pertain to felony murder and the jury was instructed consistent
with those instructions that to be guilty of felony murder, “[t]he defendant
must have intended to commit or aid and abet the felony of Robbery before or
at the time that he or she caused the death.” (See CALCRIM No. 540B.) On
the other hand, CALCRIM No. 1603 provides that “[t]o be guilty of robbery as
an aider and abettor, the defendant must have formed the intent to aid and
abet the commission of the robbery before or while a perpetrator carried away
the property to a place of temporary safety.” CALCRIM No. 1603 does not
address whether or under what circumstances a defendant could be guilty of
felony murder. Further, in providing the jury with CALCRIM No. 1603, the
jury was explicitly advised that it could not use CALCRIM No. 1603 to find
Radloff guilty of felony murder.
Here, Radloff urges us to follow Pulido, supra, 15 Cal.4th 713 and
McDonald, supra, 238 Cal.App.4th 16 and find the court improperly
instructed the jury. Neither case is helpful to Radloff’s position.
In Pulido, supra, 15 Cal.4th 713, the issue was whether a defendant
could be liable for a felony murder committed before he aided and abetted the
killer in the commission of a robbery. (Id. at p. 716.) Our high court
answered the question in the negative because, in such a case, the “killer and
accomplice were not ‘jointly engaged at the time of such killing’ in a robbery.”
(Ibid.) An accomplice’s liability for felony murder is based on a homicide
“committed in furtherance of a ‘common purpose’ [citation] or ‘common
15
design’ [citation] of robbery” and does not extend to “a killing that preceded
any agreement or intent to participate in the robbery, because the killer was
not then acting in pursuit of any such common design or purpose.” (Id. at
p. 722.)
The court, however, held the failure to instruct the jury that an aider
and abettor cannot be convicted of a felony murder committed by another if
the defendant only aided and abetted the robbery after the murder occurred
did not require reversal because the issue was decided adversely to the
defendant under other, proper instructions. (Pulido, supra, 15 Cal.4th at
p. 716.) The jury in Pulido had been instructed it could not find the
defendant guilty of the robbery-murder unless he was engaged in the robbery
“at the time of the killing.” In addition, the jury also had been instructed to
determine whether the murder occurred “ ‘while the defendant was engaged
or was an accomplice in’ robbery. . . .” (Id. at p. 727, italics omitted.)
In the instant matter, we are not faced with an improper instruction
like the one in Pulido. Here, the jury was properly instructed under
CALCRIM No. 540B that an intent to aid and abet the robbery had to be
formed before the killing occurred. As such, Pulido is not instructive in this
matter.
In McDonald, the court held that the trial court erred in instructing the
jury with CALCRIM No. 1603 and a truncated version of CALCRIM No. 540B
because “[t]aken together, [those instructions] permitted defendant to be
found guilty of felony murder even if he did not aid and abet the robbery until
after commission of the act that caused [the victim’s] death.” (McDonald,
supra, 238 Cal.App.4th at p. 27.) There, as in the present case, the trial court
gave CALCRIM No. 1603 in conjunction with the instructions on robbery, and
CALCRIM No. 540B in conjunction with the instructions on felony murder.
16
(McDonald, at pp. 21-22.) Unlike the present case, however, the trial court
omitted the paragraph that would have told jurors “ ‘[t]he defendant must
have (intended to commit[,]/ [or] aid and abet[,]/ [or] been a member of a
conspiracy to commit) the (felony/felonies) of __________ before or at the time that (he/she) caused the
death.]’ ” (Id. at pp. 22-23, italics omitted.) In concluding that the trial court
erred in instructing the jury, the court found that “the omitted paragraph of
CALCRIM No. 540B . . . was a correct statement of the law and was factually
applicable to the present case. Although the record does not show defendant
objected to its omission, we believe the trial court should have included it on
its own motion, with a slight modification so that the final clause referred to
the time the perpetrator (rather than the defendant) caused death.” (Id. at
p. 25.)
Here, unlike McDonald, the jury was instructed on the timing of an
aider and abettor’s formation of intent regarding felony murder. While the
trial court did not modify the instruction to refer to the time the perpetrator
(rather than the defendant) caused death, the meaning of the instruction was
clear—to be guilty of felony murder, the defendant must have intended to
commit or aid and abet in the felony robbery of Joel before or at the time Joel
was shot. Further, in providing CALCRIM No. 1603, the court specifically
told the jury it could not apply that instruction to felony murder.
Accordingly, Radloff’s claim that the trial court erred in instructing the jury
on the crime of felony murder fails.
17
II
SUBSTANTIAL EVIDENCE
A. Radloff’s Contentions
Radloff contends her murder conviction cannot stand because she was
neither a major participant in the crime nor did her actions reflect a reckless
indifference to human life. She argues that substantial evidence does not
support her conviction.
B. Standard of Review
We review a sufficiency of the evidence claim under the familiar and
deferential substantial evidence standard of review. (See People v. Hicks
(1982) 128 Cal.App.3d 423, 429.) Substantial evidence is evidence that is
“reasonable, credible, and of solid value.” (People v. Rodriguez (1999) 20
Cal.4th 1, 11.) In reviewing for substantial evidence, we presume in support
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence. (See People v. Lee (2011) 51 Cal.4th 620, 632.) “Conflicts
and even testimony which is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.”
(People v. Maury (2003) 30 Cal.4th 342, 403.)
“When a jury’s verdict is attacked on the ground that there is no
substantial evidence to sustain it, the power of an appellate court begins and
ends with the determination as to whether, on the entire record, there is any
substantial evidence, contradicted or uncontradicted, which will support it,
and when two or more inferences can reasonably be deduced from the facts, a
reviewing court is without power to substitute its deductions for those of the
18
jury. It is of no consequence that the jury believing other evidence, or
drawing different inferences, might have reached a contrary conclusion.”
(People v. Brown (1984) 150 Cal.App.3d 968, 970, italics omitted.) Whether
the evidence presented at trial is direct or circumstantial, the relevant
inquiry on appeal remains whether any reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt. (See People v.
Manibusan (2013) 58 Cal.4th 40, 92; Jackson v. Virginia (1979) 443 U.S. 307,
319.) Moreover, unless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a conviction.
(See People v. Dominguez (2010) 180 Cal.App.4th 1351, 1356.)
C. Analysis
Since the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.), the
felony murder statute now explicitly incorporates the requirements of the
felony murder special circumstance. (§ 189, subd. (e)(3); People v. Solis (2020)
46 Cal.App.5th 762, 775.) Therefore, for felony murder liability to attach, a
non-killer defendant who does not intend to kill must be a major participant
in the underlying crime who acts with reckless indifference to human life.
(§ 189, subd. (e)(3).) The “major participant” and “reckless indifference”
requirements codify the limits announced in Tison v. Arizona (1987) 481 U.S.
137. (People v. Estrada (1995) 11 Cal.4th 568, 575.) Tison, in turn, expanded
upon Enmund v. Florida (1982) 458 U.S. 782. (People v. Banks (2015) 61
Cal.4th 788, 799-802 (Banks).)
Here, Radloff argues that substantial evidence does not support the
jury’s finding that she was a major participant in the robbery or that she
acted with a reckless indifference to human life. We will analyze each of
these issues separately.
19
As a threshold matter, we acknowledge there were competing
narratives presented at trial regarding the meeting among Joel, Radloff, and
Galvez. Radloff claimed she and Galvez were merely trying to buy drugs
from Joel. The prosecution, however, argued Radloff and Galvez intended to
rob Joel. It is not our role to reweigh the evidence supporting each theory of
the case (see People v. Nelson (2011) 51 Cal.4th 198, 210), but, instead, for
purposes of our analysis here, we review the evidence in light most favorable
to the judgment to ascertain whether there is substantial evidence showing
Radloff and Galvez intended to rob Joel (see People v. Manibusan, supra, 58
Cal.4th at p. 92).
Radloff and Galvez brought a loaded gun to the meeting with Joel.
Further, Radloff initially told the police the gun was hers. There was
ammunition for the gun found in Radloff’s cell phone box. Also, Radloff lied
to Joel about who she was with before their first meeting on the night in
question. She told Joel she was with a female friend when she was actually
with Galvez. The jury could infer from such evidence that Radloff did not
want Joel to be prepared for Radloff to be accompanied by a male. Moreover,
there was evidence proffered at trial that Radloff was in a dispute with Joel
and had motive to hurt him. They were fighting about Radloff’s decision to
tell Joel’s ex-girlfriend about their sexual relationship. Indeed, Radloff told
the police that, when they met on the subject night, Joel was upset about the
fact that Radloff disclosed the sexual nature of their relationship. Also, there
was little evidence that Radloff expressed any shock or surprise when Joel
was shot. In short, substantial evidence supports the prosecution’s theory
that Radloff and Galvez intended to rob Joel.
20
We next turn to whether substantial evidence supports a finding that
Radloff was a “major participant” in the robbery. In doing so, we consider the
following factors:
“What role did the defendant have in planning the criminal
enterprise that led to one or more deaths? What role did
the defendant have in supplying or using lethal weapons?
What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or
past experience or conduct of the other participants? Was
the defendant present at the scene of the killing, in a
position to facilitate or prevent the actual murder, and did
his or her own actions or inaction play a particular role in
the death?” (Banks, supra, 61 Cal.4th at p. 803.)
Here, there was substantial evidence that Radloff was at least
somewhat involved in the planning of the robbery, was present at the scene of
the crime, was in a position to facilitate or prevent Joel’s murder, and her
actions or inaction played a role in Joel’s death. (Banks, supra, 61 Cal.4th at
p. 803.)
In regard to planning the robbery, it is undisputed that Radloff
contacted Joel to arrange the meeting. Radloff had a close relationship with
Joel. In contrast, Galvez had never met Joel before he shot him. Put
differently, Radloff selected the target of the robbery. As such, the first fact
supports Radloff’s role as a major participant. (See People v. Gonzalez (2016)
246 Cal.App.4th 1358, 1385 (Gonzalez) [the defendant’s act of luring the
victim to the scene of the crime was “ ‘critical to the robbery’s success’ ”].)
Although Galvez shot Joel, there was significant evidence offered about
Radloff’s knowledge and use of guns. She initially told the police the gun
used to kill Joel was hers. She provided details to the police about the gun
and about shooting various types of guns. The ammunition for the gun used
21
to kill Joel was found in the car Radloff and Galvez were traveling in to meet
Joel when he was shot.
Additionally, the evidence showed that Radloff had significant
awareness as to the particular dangers posed by the nature of the crime,
especially the violent nature of both Joel and Galvez. At trial, Radloff
testified that she believed drug dealing was a dangerous business. She
emphasized, during her interview with police as well as at trial, that she
knew Joel was a violent person who would not tolerate being taken
advantage of. (See Gonzalez, supra, 246 Cal.App.4th at p. 1385 [where the
defendant knew that the proposed robbery victim was a drug dealer who had
been physically violent in the past, there was “a substantial probability the
robbery would result in resistance and the need to meet that resistance with
deadly force”].) And Radloff acknowledged to the police that she was aware of
Galvez’s violent past. During her interview, the police told Radloff that
Galvez “ha[d] this long history of violence, there’s a lot of violence. A lot of
guns, a lot of stuff in his background.” Upon hearing this information,
Radloff responded, “Yeah.” The jury could reasonably infer that Radloff was
indicating her awareness of Galvez’s violent nature and use of guns.
Radloff also was present at the scene of the robbery. She was not
merely the getaway driver who was offsite waiting for the robbery to be
committed. “Proximity to the murder and the events leading up to it may be
particularly significant where . . . the murder is a culmination or a
foreseeable result of several intermediate steps, or where the participant who
personally commits the murder exhibits behavior tending to suggest a
willingness to use lethal force. In such cases, ‘the defendant’s presence
allows him to observe his cohorts so that it is fair to conclude that he shared
in their actions and mental state.’ ” (People v. Clark (2016) 63 Cal.4th 522,
22
619 (Clark).) Further, “the defendant’s presence gives him an opportunity to
act as a restraining influence on murderous cohorts. If the defendant fails to
act as a restraining influence, then the defendant is arguably more at fault
for the resulting murders.” (Ibid.)
In addition to her presences at the scene, Radloff was in a position to
potentially prevent the actual murder, yet she did nothing. According to
Radloff’s trial testimony, Galvez suddenly decided to rob Joel by pointing a
gun at him and demanding the drugs and the money. Joel responded by
saying, “Fuck you,” and then tried to escape before Galvez shot him three
times. However, when Galvez first pointed the gun at Joel, there is no
evidence that Radloff did anything in response. She did not try to stop
Galvez. Although she knew both Joel and Galvez, she did not attempt to
deescalate the situation. In fact, there was no evidence that Radloff was
surprised by Galvez’s actions whatsoever. She did not protest. She did not
yell at Galvez to stop. She did not tell Joel to wait and not try to run away.
In short, she took no effort to ensure that Galvez did not shoot Joel. Again,
this evidence supports the jury’s finding that Radloff was a major participant.
(See In re Loza (2017) 10 Cal.App.5th 38, 51.)
Finally, Radloff’s actions after Joel was shot further support that she
was a major participant. After witnessing Joel being shot three times, lying
in the street, and screaming in agony, Radloff did nothing to help him. She
did not get out of the car. She did not render aid. She did not ask anyone
else for help. She did not call the police or an ambulance. Instead of helping
Joel, she chose to aid Galvez in escaping. (See In re Loza, supra, 10
Cal.App.5th at p. 51 [substantial evidence that the defendant was a major
participant where the defendant helped the perpetrator to leave the scene
after the shooting and fled with the perpetrator].) And the jury, as the trier
23
of fact, was in the best position to evaluate the credibility of Radloff’s claim
that she drove away out of fear of Galvez. Again, there was no evidence that
Radloff expressed surprise or shock when Joel was shot. Also, although
Radloff claimed that Galvez pointed the gun at her and demanded that she
drive away, Radloff did not immediately leave, but rather started to drive
slowly away then circled back toward Joel for several moments before slowly
driving away. Certainly it was reasonable for the jury to find that if Galvez
was actually threatening Radloff, Radloff would have left quickly and not
circled back toward Joel.
Here, Radloff does not address the evidence showing she was a major
participant in the robbery. Instead, she points at other evidence she claims
shows that she did not know Galvez was going to rob Joel and that she acted
under Galvez’s threats to harm her. In this sense, Radloff is simply asking
us to reweigh the evidence. This we cannot do. (See People v. Nelson, supra,51 Cal.4th at p. 210.) We must look at the evidence in a light most favorable
to the judgment. (See People v. Rivera (2019) 7 Cal.5th 306, 323-324.)
Through this lens, we are satisfied that substantial evidence supports the
jury’s finding that Radloff was a major participant in the robbery.
Having concluded that substantial evidence supports the finding that
Radloff was a major participant, we next analyze whether substantial
evidence supports the finding that Radloff acted with a “reckless indifference
to human life.” The phrase “reckless indifference to human life” does not
have any special meaning under the law, and simply requires that the
defendant be subjectively aware that the criminal activity that he or she is
participating in involves a grave risk of death. (People v. Mil (2012) 53
Cal.4th 400, 417; People v. Estrada, supra, 11 Cal.4th at p. 577.) As our high
court recognized, there is “ ‘significant[ ] overlap’ ” with respect to the factors
24
concerning major participation. (Clark, supra, 63 Cal.4th. at p. 615.) As
such, “the greater the defendant’s participation in the felony murder, the
more likely that he acted with reckless indifference to human life.” (Ibid.)
Like her argument that substantial evidence does not support a finding
that she was a major participant in the robbery, Radloff again focuses only on
the evidence that supports her position and ignores the contrary evidence. As
such, we summarily reject this argument as improper for a substantial
evidence challenge. (See People v. Rivera, supra, 7 Cal.5th at p. 323-324;
People v. Maury, supra, 30 Cal.4th at p. 403; People v. Brown, supra, 150
Cal.App.3d at p. 970.)
Here, application of the Clark factors to Radloff’s conduct shows that
she acted with reckless indifference. With respect to her knowledge that a
gun would be used, again, she told police that the gun belonged to her, and
the ammunition for the gun was found in the car she traveled in with Galvez
on the night Joel was killed. Even if the gun belonged to Galvez, there was
evidence that she knew he had it. Although simple awareness that a cohort
is armed does not by itself establish reckless indifference, it is still a factor in
the calculus. (Clark, supra, 63 Cal.4th at p. 618.)
Radloff also planned a crime that, by its very nature, involved a high
risk of danger. Here, there is evidence that Radloff knew that her targeted
victim was dangerous (she described him as “vicious” and “a beast”). By
choosing to rob a drug dealer in front of an apartment complex, where
bystanders could be present and at risk of being shot, Radloff demonstrated
reckless indifference to human life. Radloff also indicated awareness of
Galvez’s violent history.
Additionally, Radloff took action to increase the level of danger in the
robbery of Joel. In her police interview, she stated that she was the one who
25
brought up the topic of her sexual involvement with Joel during their
meeting. The discussion of her possibly unwilling sexual involvement with
Joel and another man upset Joel and only increased the tension and risk of
danger.
Radloff was present at the scene of the robbery, witnessed the shooting,
and then took no action to help Joel; this also is highly probative of her
reckless indifference. Because Radloff was physically present at the scene of
the murder, she had the opportunity to restrain the murderer or aid the
victim, yet she did neither. (See People v. Garcia (2020) 46 Cal.App.5th 123,
148 [“Presence at the scene of the murder is a particularly important aspect
of the reckless indifference inquiry.”].)
After Joel was shot, he fell to the ground and began screaming for help.
Radloff did not get out of the car to render any aid to Joel, and she did not
call 911 or ask anyone else to help Joel. Instead, she slowly started to drive
away, then circled back to Joel, then slowly drove away with Galvez. Her
actions, again, demonstrated reckless indifference. (See People v. Lopez
(2011) 198 Cal.App.4th 1106, 11172 [“After hearing what [the defendant]
knew was a gunshot, she failed to help the victim or call 911. Instead she
went to [a] house and stayed with [her accomplices] for the rest of the
night . . . . Her actions reflect utter indifference to the victim’s life.”];
People v. Smith (2005) 135 Cal.App.4th 914, 927-928 [the defendant acted
2 We note our high court disapproved of People v. Lopez, supra, 198
Cal.App.4th 1106 to the extent it holds the knowledge of one’s accomplice is
armed can, by itself, establish reckless indifference to human life under
section 190.2, subdivision (d). (See Banks, supra, 61 Cal.4th at p. 809, fn. 8.)
As the Supreme Court observed, there was other evidence in the record that
supported the jury’s finding that the defendant acted with reckless
indifference to life. (Ibid.) We emphasize that we are not relying on Lopez
for the proposition that a defendant simply knowing an accomplice is armed
is sufficient, by itself, to establish reckless indifference to human life.
26
with reckless indifference to human life where he knew the victim was
injured and chose to flee with the killer rather than come to the victim’s aid
or summon help].)
Although she ignores the evidence supporting the jury’s finding that
she exhibited reckless indifference to human life, Radloff claims her case is
analogous to In re Bennett (2018) 26 Cal.App.5th 1002 (Bennett). That case is
no help to Radloff.
In Bennett, the petitioner participated in the planning of a robbery,
which resulted in the shooting of the victim. He had a preexisting
relationship with the victim, contacted and located the victim, and drove the
other two participants to the victim’s apartment. He also called the victim
and lured the victim out of his apartment. (Bennett, supra, 26 Cal.App.5th at
pp. 1019-1020.) There was also evidence that the petitioner knew the other
two participants were armed. (Id. at p. 1020.) However, the petitioner was
not aware of the violent nature of the other two participants. (Ibid.)
Yet, the petitioner “ ‘ did not see the shooting happen, did not have
reason to know it was going to happen, and could not do anything to stop the
shooting or render assistance.’ ” (Bennett, supra, 26 Cal.App.5th at p. 1023.)
He was not “ ‘aware of and willingly involved in the violent manner in which
the particular offense [was] committed. . . .’ ” (Ibid.) Consequently, the
appellate court determined that substantial evidence did not support a
finding that the petitioner had exhibited reckless indifference to human life.
(Id. at p. 1026.)
In contrast to the petitioner in Bennett, here, there was evidence
supporting the inference that Radloff knew Galvez was violent. In addition,
unlike the petitioner in Bennett, Radloff was present at the scene when the
shooting occurred, did not do anything to stop the shooting from happening,
27
and did not render aid or ask anyone to help after Joel was shot. Simply put,
Radloff’s role in the robbery was much more involved than that of the
petitioner in Bennett. Thus, Bennett, supra, 26 Cal.App.5th 1002 is not
instructive here.
In short, substantial evidence supports the finding that Radloff was a
major participant in the robbery and exhibited a reckless indifference to
human life.
28
III
THE FIVE YEAR ENHANCEMENT IMPOSED ON GALVEZ3
A. Galvez’s Contentions
Galvez argues that we must remand his case to allow the trial court the
opportunity to consider whether to strike his serious felony prior conviction,
which resulted in a term of five years being added to his sentence. To this
end, he contends that, under Senate Bill No. 1393, he was entitled to have
the trial court consider exercising its discretion to strike the enhancement.
Acknowledging that he made no such request although Senate Bill No. 1393
was effective at the time of his sentencing, Galvez asserts his attorney was
constitutionally ineffective for failing to ask the court to strike the prior
series felony.
B. Background
At the April 24, 2019 hearing during which Galvez admitted his serious
felony prior conviction, the trial court inquired as to whether Galvez would be
admitting “only” to the strike prior, or whether he would also be admitting to
the alleged prison priors and the alleged serious felony prior. The court also
noted that the serious felony prior was based on the same conduct as the
strike prior: “A serious felony, which is the same as a strike prior.” In
3 Although Galvez, in his opening brief, joined in the arguments
advanced by Radloff, he did not supply any additional argument on any of the
issues raised by Radloff. Joinder may be broadly permitted (Cal. Rules of
Court, rule 8.200(a)(5)), but each appellant has the burden of demonstrating
error and prejudice. (People v. Coley (1997) 52 Cal.App.4th 964, 972;
Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“Because of the
need to consider the particulars of the given case, rather than the type of
error, the appellant bears the duty of spelling out in his brief exactly how the
error caused a miscarriage of justice.”].) Because all of Radloff’s arguments
on appeal are based on her unique role in the underlying crimes, we do not
see how they apply to Galvez.
29
response, Galvez’s trial counsel stated that, “whether or not the strike prior
served as a serious felony prior . . . or it will be used as a serious felony
prior . . . it’s within the discretion of the court under current case law. So I
don’t think we even have to admit to that, per se. [¶] However, by operation
of law, we are admitting to the strike prior. How the court should receive it is
something that we can address at sentencing.”
The court then noted that “[t]he underlying charges for the serious
felony prior are the same as the strike prior” and then confirmed that Galvez
was “going to admit to the strike and the serious felony prior[.]”
Before the trial court took Galvez’s admission, it advised Galvez that
the strike prior “will double any base term on any charge that you have
suffered,” while the serious felony prior “has a possibility of adding five years
to any total period of incarceration that you may suffer.” Galvez indicated
that he understood what the court was stating. The court then found that
Galvez “made a voluntary, knowing and intelligent waiver as far as his rights
to trial, which he previously waived, and his acknowledgement of the
consequences of his admission to the serious felony prior and the strike
prior.”
At Galvez’s subsequent sentencing hearing, Galvez’s trial counsel
asked the trial court to strike Galvez’s strike prior and to exercise its
discretion with respect to the gun-use allegation, but did not ask the court to
strike Galvez’s serious felony prior conviction. After declining to strike
Galvez’s strike prior and declining to impose a lesser term for the gun-use
allegation, the trial court stated that it would “also impose the serious felony
prior under [section] 667(a) for five years.”
The trial court then went on to strike the sentence for the serious
felony prior conviction as to count 2, the robbery conviction. The trial court
30
stated that while it was imposing the five-year enhancement as to the
murder count, it was striking it as to the robbery count. In doing so, the trial
court indicated that probation recommended imposing punishment for the
serious felony prior conviction on both counts, but that the trial court would
“strike that [section] 667(a) allegation as to the [section] 211.” Upon request
for clarification from defense counsel, the court later reiterated that it was
“striking the nickel prior” for purposes of count 2.
C. Analysis
Effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.)
amended sections 667, subdivision (a)(1), and 1385, subdivision (b), to give
trial courts the discretion to dismiss five-year serious felony sentence
enhancements under section 667, subdivision (a). Galvez’s sentencing took
place on June 19, 2019. Therefore, at Galvez’s sentencing, Senate Bill
No. 1393 was already in effect, and the trial court had discretion to strike his
five-year serious felony prior. Galvez, however, did not explicitly ask the trial
court to do so. Because he did not, he has forfeited the issue on appeal. (See
People v. Carmony (2004) 33 Cal.4th 367, 375-376 [“any failure on the part of
a defendant to invite the court to dismiss under section 1385 . . . waives or
forfeits his or her right to raise the issue on appeal”].)
To avoid forfeiture, Galvez claims that his trial counsel’s failure to ask
the trial court to strike his serious felony prior conviction enhancement
constituted ineffective assistance of counsel.
To demonstrate ineffective assistance of counsel, Galvez must
demonstrate his trial attorney’s performance (1) fell below an objective
standard of reasonableness under prevailing professional norms, and (2) the
deficient performance prejudiced him. (Strickland v. Washington (1984) 466
U.S. 668, 687-688.) We evaluate the attorney’s conduct with deference, and
31
we “indulge a strong presumption that counsel’s acts were within the wide
range of reasonable professional assistance.” (People v. Dennis (1998) 17
Cal.4th 468, 541.)
“ ‘ “[If] the record on appeal sheds no light on why counsel acted or
failed to act in the manner challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Cash (2002) 28 Cal.4th
703, 734 [“ ‘ “ ‘record must affirmatively disclose the lack of rational tactical
purpose for challenged act or omission.’ [Citation.]” ’ ”].)
Here, the record does not indicate why Galvez’s trial counsel failed to
ask for the serious felony prior to be stricken. Perhaps defense counsel may
have believed that her earlier comments acknowledging the court’s discretion
under Senate Bill No. 1393 and the trial court’s earlier comments
acknowledging the same were sufficient to bring the matter before the trial
court. Alternatively, counsel made the tactical choice to focus on convincing
the trial court to strike Galvez’s strike prior or to impose a lesser punishment
for the gun use enhancement, either of which (if successful) would have had a
greater impact on Galvez’s overall sentence. On the record before us, we
cannot say that there was no tactical reason for defense counsel’s choice not
to request the court to strike Galvez’s serious felony prior.
In addition, even if Galvez could meet the first prong of the test for
ineffective assistance of counsel, he cannot meet his burden to show he
“suffered prejudice to a reasonable probability.” (People v. Johnson (2016) 62
Cal.4th 600, 653.) The record demonstrates that the trial court was aware of
its discretion to strike the five-year enhancement, should it have seen fit to
do so. When the trial court accepted Galvez’s admission to his strike prior, it
32
also addressed Galvez’s serious felony prior conviction (which was based on
the same underlying conduct) and noted that it had “a possibility” of adding
five years to Galvez’s sentence. At sentencing, the trial court stated that it
would “also impose the serious felony prior conviction,” again indicating
through its language that its decision to impose punishment was not
mandatory. Finally, and perhaps most significantly, the trial court actually
struck the prior serious felony as to the robbery count. The trial court
indicated that probation recommended imposing punishment for the serious
felony prior conviction on both counts, but that the trial court would “strike
that [section] 667(a) allegation as to the [section] 211.” Thus, not only was
the court aware of its discretion to strike serious felony prior convictions, it
exercised its discretion to do so in this case. And, it did so without a
corresponding request by trial counsel. Had the court wanted to exercise that
discretion with respect to the murder count, the record suggests that it would
have done so, even without a request from counsel.
In addition, the trial court’s discretionary choices not to strike Galvez’s
strike prior and to impose the greatest possible term for the firearm
enhancement also demonstrate a lack of prejudice as to the serious felony
prior conviction enhancement. At sentencing, when the trial court denied
Galvez’s motion to strike his prior strike conviction, the trial court noted that
the prior conviction (which also formed the basis of the serious felony prior
conviction) was recent and involved firearms. The court stated its opinion
that “there’s nothing for the Court really to consider here as far as striking
the strike that is of any benefit to [Galvez].”
Further, with respect to Galvez’s firearm enhancement term, the court
stated that “[b]ased on the circumstances of this case, the cold-blooded nature
of this case, [and] the Defendant’s history with weapons,” it would not reduce
33
or strike the enhancement term. The court stated it “will not reduce the
[section] 12022.53(d) to any lesser offense. I will not strike it. I will impose it
fully at 25 years to life.” Immediately after that, the court went on to state
that it “will impose the serious felony prior under [section] 667(a) for five
years.” In light of the trial court’s comments, there is no substantial
probability that the court would have ignored all of those factors (including
the recency of the prior conviction and the “cold-blooded” murder in this case)
to strike the five-year enhancement.
Accordingly, Galvez’s claim that his trial counsel was constitutionally
ineffective fails.
DISPOSTION
The judgments are affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.
34