People v. Salmen CA2/2 ( 2021 )

Filed 4/12/21 P. v. Salmen CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301822
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA449759)
v.
JUSTIN SALMEN,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County. Robert J. Perry, Judge. Modified and affirmed
with directions.
Judith Kahn, under appointments by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Roberta L. Davis and William H.
Shin, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Justin Salmen appeals the judgment entered following a
jury trial in which he was convicted of first degree murder. (Pen.
Code,1 § 187, subd. (a); count 1.) The trial court sentenced
appellant to a total term of 62 years to life in prison. The
sentence consisted of 25 years to life on count 1, doubled to 50
years to life for a prior strike conviction (§§ 667, subd. (d),
1170.12, subd. (b)), plus one year for the personal use of a knife
(§ 12022.5, subd. (b)), five years for a prior serious felony
conviction (§ 667, subd. (a)(1)), and one year each for six prior
prison terms (§ 667.5, subd. (b)).
Appellant contends the trial court abused its discretion in
excluding evidence of the victim’s alleged prison gang tattoo and
substantial evidence does not support the jury’s finding of
premeditation and deliberation. We disagree and affirm the
judgment of conviction. Appellant further asserts and
respondent agrees that the one-year prior prison term
enhancements imposed under section 667.5, subdivision (b) must
be stricken in accordance with Senate Bill No. 136. We also
agree and modify the judgment to strike the six one-year
enhancements and affirm the judgment as modified. Finally, we
reject appellant’s assertion that remand is required to allow the
trial court to consider striking the five-year prior serious felony
conviction enhancement. (§ 667, subd. (a)(1).)
FACTUAL BACKGROUND
In August 2016, appellant and Kenneth Dowell (both White
men) shared an apartment at Sober Clarity, a sober living
facility. Dowell served as the “maintenance man” around the
facility and got along well with the facility manager and other
1 Undesignated statutory references are to the Penal Code.
2
Sober Clarity staff members who were Black. Before appellant
moved in, Dowell had a Black roommate with whom he was good
friends. Dowell and appellant also seemed to “get along just
fine,” and they occasionally worked together.
According to appellant, however, Dowell was a White
supremacist who had killed people for the Aryan Brotherhood
while he was in prison. Appellant had a Black girlfriend while he
and Dowell were roommates, and Dowell made his disapproval of
appellant’s interracial relationship very clear through
“subliminal messages.” Early in August 2016, appellant
complained to a facility staff member that Dowell was a racist.
On August 28, 2016, sometime before 8:00 p.m., appellant
killed Dowell by stabbing him in the neck 30 to 40 times.
According to appellant, a fight had started when appellant
walked into the room with a wedding ring and told Dowell he was
going to propose to his pregnant girlfriend. Dowell made some
insulting racist remarks about the girlfriend, who was of mixed
race and called appellant a “nigger[2] lover.” When appellant
reacted, Dowell punched appellant in the face. Dowell picked up
a pair of scissors and appellant thought Dowell was going to kill
him. Appellant grabbed the scissors away as the two men began
to struggle. Appellant threw Dowell on the bed and started
“beating his fucking ass.” But Dowell continued to fight back.
Appellant grabbed a knife and stabbed Dowell in the eye to stop
Dowell from killing him. When Dowell still came after him,
appellant began “[c]utting his neck” “[a] lot.” Appellant dragged
2 This offensive term is replaced hereafter with “n” so as
not to repeat it.
3
Dowell into the bathroom “so he could bleed out” as he continued
to stab Dowell in the neck.
When the fighting ended, Dowell was lying facedown on the
bathroom floor, bleeding. Appellant broke the blade off the knife
and flushed it down the toilet. He then dragged Dowell into the
living room and tried to clean the blood from the bathroom.
When he wiped the blood off his own body and realized he had
not been injured, he inflicted wounds on himself to make it look
like he had been assaulted. Appellant changed his clothes and
left to get some gasoline from a gas station to “burn the place
down” “so the murder didn’t happen.”
After appellant left the apartment, he told one of the
facility’s staff that Dowell had stabbed him in the eye with a
screwdriver. Appellant then asked for the gate to be opened so he
could go get some gas for Dowell’s truck. Appellant returned
with the gasoline about 20 minutes later. He piled blankets, a
mattress, and other items on top of Dowell, poured the gasoline
on the pile, and attempted to set it ablaze.
Surveillance video showed appellant come downstairs from
the apartment at 8:24 p.m. with his shirt on fire. He removed his
burning shirt, returned to the apartment, and came back
downstairs with a skateboard at 8:25 p.m. At 8:31 p.m.,
appellant climbed over the front gate and fled on his skateboard.
Appellant was arrested and interviewed by police two days
later on August 30, 2016. During the interview appellant stated
that he had “exterminated” Dowell because he was “tired of
[Dowell] being a racist and fussy and bitchy.” But appellant
insisted that, throughout the confrontation, Dowell was trying to
“take [appellant’s] life,” and Dowell would have killed him if he
didn’t kill Dowell first.
4
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in
Excluding Evidence of the Victim’s Alleged
Prison Gang Tattoo
Appellant contends the trial court abused its discretion in
excluding evidence of Dowell’s Aryan Brotherhood tattoo, which
he allegedly got while serving 33 years in prison for murder.
Asserting that the tattoo signified lifetime fealty to a violent
White supremacist gang, appellant maintains that the evidence
was critical to establishing appellant’s claim of self-defense, and
the trial court’s error in excluding it requires reversal. We
disagree.
A. Relevant background
Prior to trial, the prosecution sought to exclude “Any
Reference to the Victim’s 1982 Murder Conviction” as well as
“Any Reference to the Victim Belonging to a Prison Gang.” The
trial court ruled that evidence of the murder conviction was
admissible only to the extent appellant himself testified about it.
As for the alleged gang tattoo, the court agreed with the
prosecutor that any suggestion that Dowell might have been part
of a notorious prison gang based on a faded tattoo of unknown
origin was tenuous and speculative.
B. Applicable law
A trial court is vested with considerable discretion to
determine the relevance of evidence, defined as “having any
tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action,” including a
witness’s credibility. (Evid. Code, § 210; People v. Contreras
(2013) 58 Cal.4th 123, 152.) Under Evidence Code section 352, a
trial court has similarly broad discretion to exclude even relevant
5
evidence if it determines the probative value of the evidence “is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (Evid. Code, § 352; People v. Johnsen
(2021) 10 Cal.5th 1116, 1176.) Evidence that bears on the
credibility of a witness may be relevant, but nevertheless
collateral to the case and subject to exclusion by the trial court.
(Contreras, at p. 152.) Further, “as long as the excluded evidence
would not have produced a ‘ “ ‘significantly different
impression’ ” ’ of the witness’s credibility, the confrontation
clause and related constitutional guarantees do not limit the trial
court’s discretion in this regard.” (Ibid.)
We review the trial court’s rulings on the relevance and
admissibility of evidence under Evidence Code section 352 for
abuse of discretion. (People v. Jones (2017) 3 Cal.5th 583, 609.)
“We will not reverse a court’s ruling on such matters unless it is
shown ‘ “the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” ’ ” (People v. Merriman (2014) 60 Cal.4th
1, 74.)
C. Analysis
Appellant contends that “[t]he trial court erred in
precluding counsel from adducing evidence, known to appellant,
that Dowell belonged to the Aryan Brotherhood when serving 33
years in prison and had a tattoo signifying his membership in a
violent White Supremacist prison gang.” But contrary to
appellant’s claim, the only evidence excluded was evidence of a
faded tattoo that may or may not have signified Dowell’s
6
allegiance to the Aryan Brotherhood gang at some point in his
life, possibly while he was in prison.
At trial, evidence of the tattoo was not introduced, but
evidence that Dowell committed murder and belonged to the
Aryan Brotherhood gang while he was serving a 33-year sentence
for murder was introduced through appellant’s testimony.
Appellant testified that after he moved in with Dowell, Dowell
told him “he was a White supremist [sic], he killed people for the
Aryan Brotherhood and he told [appellant] he believes the
supreme White power.” Defense counsel also asked appellant
about his knowledge of Dowell’s time in prison:
“[Defense counsel]: [Y]ou mentioned [Dowell] killed people
for the Aryan Brotherhood?
“[Appellant]: Yes.
“[Defense counsel]: Did he say under what circumstances
or where that happened?
“[Appellant]: No. Well he said that . . . he was in prison.”
Defense counsel continued to press appellant about
Dowell’s time in prison, and appellant testified that Dowell was a
racist and told appellant he had killed people in prison: “[Dowell]
got caught for one of them. He did 30 years for it,” and then “[h]e
killed more people in prison.” Appellant explained that he made
the decision to kill Dowell because he knew his “life was in
danger [because] this man was [a] killer.”
During closing argument, defense counsel emphasized
Dowell’s time in prison for murder and repeatedly referred to the
things Dowell “used to do in prison for the Aryan Brotherhood.”
In the context of the self-defense instruction, the jury was
specifically informed that it could consider information that
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appellant knew “Dowell had threatened or harmed others in the
past” to decide if appellant’s conduct and beliefs were reasonable.
“ ‘A person claiming self-defense is required to “prove his
own frame of mind,” and in so doing is “entitled to corroborate his
testimony that he was in fear for his life by proving the
reasonableness of such fear.” ’ ” (People v. Minifie (1996) 13
Cal.4th 1055, 1065; People v. Sotelo-Urena (2016) 4 Cal.App.5th
732, 745.) Evidence that Dowell had earned a gang tattoo as a
member of the Aryan Brotherhood while serving time in prison
might have been relevant to corroborate appellant’s claimed
belief in the immediate need to defend himself with deadly force,
but only if a foundation could be laid to establish a link between
Dowell’s tattoo and the Aryan Brotherhood gang. Laying the
requisite foundation would have required the testimony of an
Aryan Brotherhood gang expert or someone with personal
knowledge of the circumstances of Dowell’s acquisition of the
gang tattoo, along with evidence that appellant had personal
knowledge of Dowell’s tattoo being a symbol of allegiance to the
Aryan Brotherhood gang.
Even if a foundation could be established, the probative
value of the evidence was minimal: The tattoo’s sole relevance
was to corroborate appellant’s claim that Dowell was a member of
the Aryan Brotherhood. But in light of appellant’s testimony
that Dowell actually told him he was a White supremacist and he
had killed people for the Aryan Brotherhood while he was in
prison, evidence of the tattoo⎯even if it was an Aryan
Brotherhood tattoo⎯was merely cumulative. On the other hand,
the detour necessary to establish the relevance of this evidence
would have consumed a significant amount of time and created a
substantial danger of confusing the issues and misleading the
8
jury, thus outweighing the slim probative value of the evidence.
The trial court properly excluded the tattoo evidence pursuant to
its broad authority to do so under Evidence Code section 352.
In this regard, appellant’s reliance on federal cases
discussing Aryan Brotherhood gang culture to argue the
importance of the tattoo evidence is misplaced. The issue here is
not whether the Aryan Brotherhood is a dangerous prison gang.
Rather, the admissibility of the evidence of Dowell’s tattoo under
Evidence Code section 352 turned on whether its probative value
was outweighed by the risks of prejudice, undue consumption of
time, confusing the issues, or misleading the jury. After properly
weighing these factors, the trial court did not abuse its discretion
in excluding evidence of the tattoo while still allowing appellant
to testify to his knowledge of Dowell’s violent history as a
member of the Aryan Brotherhood.
As for appellant’s claim that the trial court’s ruling
stripped him of his right to present a defense, we observe that as
a general matter, application of “ ‘the ordinary rules of evidence
do not impermissibly infringe on the accused’s right to present a
defense.’ ” (People v. Turner (2020) 10 Cal.5th 786, 818; People v.
Linton (2013) 56 Cal.4th 1146, 1202.) “ ‘ “Although completely
excluding evidence of an accused’s defense theoretically could rise
to this level, excluding defense evidence on a minor or subsidiary
point does not impair an accused’s due process right to present a
defense.” ’ ” (People v. Thornton (2007) 41 Cal.4th 391, 443,
quoting People v. Boyette (2002) 29 Cal.4th 381, 427–428.)
As set forth above, the trial court’s ruling excluded only the
tattoo evidence; appellant presented his defense that he killed
Dowell because he believed his life was in immediate danger from
this killer who had served a 30-year prison sentence for murder
9
and committed multiple murders in prison as a member of the
Aryan Brotherhood. His counsel argued the killing was in self-
defense based on Dowell’s violent history. And the jury was given
a self-defense instruction that allowed it to consider information
that appellant knew “Dowell had threatened or harmed others in
the past” in deciding if appellant’s conduct and beliefs were
reasonable. Given that the tattoo evidence would have been
merely cumulative, its exclusion did not impair appellant’s right
to present a defense.
II. The Jury’s Finding of Premeditation and
Deliberation Is Supported by Substantial
Evidence
Selectively citing the evidence supporting his claim that he
killed Dowell on sudden impulse and in self-defense, while
ignoring evidence to the contrary, appellant contends there was
insufficient evidence of premeditation and deliberation to support
a finding of first degree murder. Appellant’s claim, however, is
belied by the record.
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ [Citation.] In so doing, a
reviewing court ‘ “ ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
10
evidence.’ ” ’ ” (People v. Morales (2020) 10 Cal.5th 76, 88
(Morales), quoting People v. Beck and Cruz (2019) 8 Cal.5th 548,
626.)
The same standard applies when the prosecution relies
primarily on circumstantial evidence to obtain a conviction
(People v. Lenart (2004) 32 Cal.4th 1107, 1125 (Lenart)), and the
reviewing court must accept any logical inferences the jury might
have drawn from the circumstantial evidence. (People v.
Zamudio (2008) 43 Cal.4th 327, 357.) “Where the circumstances
reasonably justify the trier of fact’s findings, a reviewing court’s
conclusion the circumstances might also reasonably be reconciled
with a contrary finding does not warrant the judgment’s
reversal.” (Id. at p. 358.) The reviewing court resolves neither
credibility issues nor evidentiary conflicts: “ ‘Conflicts and even
testimony [that] 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.’ ” (Id. at p. 357.) Indeed, “ ‘[a] reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to
support’ ” the jury’s verdict.’ ” (People v. Penunuri (2018) 5
Cal.5th 126, 142, quoting Zamudio, at p. 357.)
“ ‘Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.’ (Pen. Code, § 187, subd. (a).) If
the murder is ‘willful, deliberate, and premeditated,’ it is first
degree murder. (Id., § 189, subd. (a).) ‘ “ ‘In this context,
“premeditated” means “considered beforehand,” and “deliberate”
means “formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against
11
the proposed course of action.” ’ ” [Citation.] “ ‘An intentional
killing is premeditated and deliberate if it occurred as the result
of preexisting thought and reflection rather than unconsidered or
rash impulse.’ ” [Citations.] “The true test is not the duration of
time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly.” ’ ” (Morales, supra, 10
Cal.5th at p. 88; see also Lenart, supra, 32 Cal.4th at p. 1127
[“[The California Supreme Court has] never required that there
be an extensive time to premeditate and deliberate”].)
In People v. Anderson (1968) 70 Cal.2d 15, 26–27
(Anderson), our Supreme Court identified three types of evidence
that will support a finding of premeditation and deliberation:
“(1) planning activity, or ‘facts about how and what defendant did
prior to the actual killing which show that the defendant was
engaged in activity directed toward, and explicable as intended to
result in, the killing’; (2) motive, or ‘facts about the defendant’s
prior relationship and/or conduct with the victim from which the
jury could reasonably infer a “motive” to kill the victim’; and
(3) manner of killing, or ‘facts about the nature of the killing from
which the jury could infer that the manner of killing was so
particular and exacting that the defendant must have
intentionally killed according to a “preconceived design” to take
his victim’s life in a particular way for a “reason.” ’ ” (Morales,
supra, 10 Cal.5th at pp. 88–89; Lenart, supra, 32 Cal.4th at
p. 1127.)
The Anderson factors provide “ ‘a framework to aid in
appellate review,’ but [do] not ‘define the elements of first degree
murder or alter the substantive law of murder in any way.’ ”
(Morales, supra, 10 Cal.5th at p. 89; People v. Booker (2011) 51
12
Cal.4th 141, 173 [“These three categories are merely a framework
for appellate review”]; People v. Perez (1992) 2 Cal.4th 1117,
1125.) The high court has stressed that these “ ‘ “guidelines are
descriptive and neither normative nor exhaustive, and that
reviewing courts need not accord them any particular weight.” ’ ”
(Morales, at p. 89, quoting People v. Rivera (2019) 7 Cal.5th 306,
324.) Indeed, “[t]hese factors need not be present in any
particular combination” (People v. Stitely (2005) 35 Cal.4th 514,
543), nor are they “the exclusive means of establishing
premeditation and deliberation.” (Lenart, supra, 32 Cal.4th at
p. 1127.) However, “[w]hen the record discloses evidence in all
three categories, the verdict generally will be sustained.” (People
v. Proctor (1992) 4 Cal.4th 499, 529.)
The record in this case reveals substantial evidence of
premeditation and deliberation based on all three of the
Anderson factors.
Appellant focuses on the fact that he did not enter the room
armed or carrying a concealed weapon to argue that there was no
evidence of planning activity. But there was plenty of time after
appellant entered the room and got into an argument with
Dowell over appellant’s pregnant girlfriend for appellant to
formulate a plan to kill Dowell and carry it out. Appellant’s own
statements to the police showed that once he had overpowered
Dowell by attacking him on the bed, appellant decided to kill
Dowell with a knife he grabbed from the kitchen. He dragged
Dowell to the bathroom where he proceeded to stab him multiple
times in the neck. “Planning activity” need not occur over any
particular length of time; indeed, “[t]he act of planning—
involving deliberation and premeditation—requires nothing more
than a ‘successive thought[] of the mind.’ ” (People v. San Nicolas
13
(2004) 34 Cal.4th 614, 658 (San Nicolas).) Here, appellant’s
successive decisions to kill Dowell, obtain a knife, and
deliberately move him into the bathroom where Dowell “could
bleed out” amply demonstrated planning activity, and constituted
substantial evidence supporting the jury’s finding of
premeditation and deliberation.
The number and location of the stab wounds demonstrated
that appellant had chosen a manner of killing that would
certainly result in death, from which a rational jury could infer
that the manner of killing showed deliberation and
premeditation. By appellant’s own estimate, he stabbed Dowell
30 to 40 times. The sheer amount of time it took appellant to
inflict so many wounds gave him ample time to reflect on his
actions. (See People v. Pride (1992) 3 Cal.4th 195, 247 [“A violent
and bloody death sustained as a result of multiple stab wounds
can be consistent with a finding of premeditation”]; see also San
Nicolas, supra, 34 Cal.4th at pp. 658–659 [“sheer number” of
lethal wounds provided sufficient evidence of deliberation and
premeditation].)
After confessing he had “exterminated” Dowell, appellant
described his motive for the killing during his interview with
police: “I’m tired of him being racist and bitchy and fussy and
complaining about me not doing this and me not doing that.”
Appellant explained that after Dowell had called him an “n lover”
and punched him, “I killed him ’cause I’m tired of people being
racist.”
Appellant confirmed his motive at trial, testifying that
Dowell had let him know through “subliminal messages” that he
disapproved of appellant’s Black girlfriend. Appellant also
testified that immediately before the killing, Dowell had called
14
appellant an “n lover” and insulted appellant’s girlfriend. And
about two weeks before the killing, when appellant complained to
one of the facility’s employees that Dowell was a racist, appellant
was “very irate . . . very upset.”
All of this evidence of planning, the manner of killing, and
the motive adds up to overwhelming evidence in support of the
jury’s finding of premeditation and deliberation. Appellant’s
substantial evidence challenge to his first degree murder
conviction fails.
III. Senate Bill No. 136 Requires that Appellant’s
One-Year Prior Prison Term Enhancements Be
Stricken
Appellant’s sentence includes six consecutive one-year
enhancements pursuant to former section 667.5, subdivision (b)
for having served six prior prison terms on felony convictions.
However, effective January 1, 2020, Senate Bill No. 136 amended
section 667.5, subdivision (b) to apply only if the prior prison
term was served “for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions
Code.” (Pen. Code, § 667.5, subd. (b); see Sen. Bill No. 136 (2019–
2020 Reg. Sess.) § 1.) None of appellant’s prior prison term
enhancements was based on a conviction for a sexually violent
offense under Welfare and Institutions Code section 6600,
subdivision (b).
Absent evidence to the contrary, courts presume “the
Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the statute’s
operative date.” (People v. Brown (2012) 54 Cal.4th 314, 323.)
Appellant’s conviction was not final when Senate Bill No. 136
took effect because his case was (and remains) on appeal, and the
15
time for filing a petition for writ of certiorari in the United States
Supreme Court has not yet expired. (People v. Vieira (2005) 35
Cal.4th 264, 306; People v. Nasalga (1996) 12 Cal.4th 784, 789,
fn. 5.) Accordingly, the amendment to section 667.5,
subdivision (b) applies retroactively to this case. (People v. Winn
(2020) 44 Cal.App.5th 859, 872–873 [Senate Bill No. 136 applies
to nonfinal judgments on appeal]; People v. Lopez (2019) 42
Cal.App.5th 337, 341 [same].)
Remand for a new sentencing hearing is unnecessary in
this case, however, because the trial court has already exercised
its discretion to impose the maximum possible sentence. (People
v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 [“Because the
resentencing court had imposed the maximum possible sentence,
regardless of whether the two-year on-bail enhancement was
stricken, there is no need to remand the matter to the trial court
to exercise its sentencing discretion anew”]; People v. Winn,
supra, 44 Cal.App.5th at pp. 872–873 [same]; People v. Lopez ,
supra, 42 Cal.App.5th at p. 342 [same].)
IV. The Record Contains No Indication the Trial
Court Was Unaware of Its Discretion to Strike
the Prior Serious Felony Conviction
Enhancement; Remand Is Therefore
Unwarranted
Appellant contends that there is no clear indication that
the court would not have reduced his sentence if it had realized it
had discretion to strike the five-year enhancement imposed under
section 667, subdivision (a)(1). Accordingly, appellant argues
that remand is necessary to give the trial court the opportunity to
exercise its discretion to strike the enhancement. We disagree.
16
Senate Bill No. 1393, which amended sections 667 and
1385 to give trial courts the discretion to strike the five-year
enhancement under section 667, subdivision (a)(1), became
effective on January 1, 2019⎯nine months before appellant was
sentenced in this case. Appellant did not seek to have the trial
court strike the section 667 enhancement, thus forfeiting the
claim for appeal. (People v. Wall (2017) 3 Cal.5th 1048, 1075 [“a
defendant forfeits on appeal any ‘claims involving the trial court’s
failure to properly make or articulate its discretionary sentencing
choices’ in the absence of objection below”]; People v. Scott (1994)
9 Cal.4th 331, 353.)
Even if appellant’s claim were not forfeited, however,
remand would be unwarranted because there is no indication
that the trial court was unaware of its discretion to strike the
section 667 enhancement in this case. In order to merit remand
for resentencing, it is appellant’s burden to “affirmatively
demonstrate that the trial court misunderstood its sentencing
discretion.” (People v. Davis (1996) 50 Cal.App.4th 168, 172.)
“When ‘the record shows that the trial court proceeded with
sentencing on the erroneous assumption it lacked discretion,
remand is necessary so that the trial court may have the
opportunity to exercise its sentencing discretion at a new
sentencing hearing.” (People v. Lee (2017) 16 Cal.App.5th 861,
866–867; Davis, at p. 172.) But absent a contrary showing on the
record, the sentencing court is presumed to be aware of its
discretionary choices. (People v. Frazier (2020) 55 Cal.App.5th
858, 868 [“It is a fundamental tenet of appellate review that we
presume on a silent record the court properly exercised its
discretion”]; People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.)
17
Senate Bill No. 1393 became effective nine months before
appellant was sentenced in this case, and there is no indication in
the record that the court was unaware of its sentencing
discretion. Appellant thus failed to sustain his burden of proving
error; remand is unwarranted. (Lee, supra, 16 Cal.App.5th at
p. 867.)
DISPOSITION
The judgment is modified to strike the six one-year
enhancements imposed under Penal Code section 667.5,
subdivision (b). The trial court is directed to correct the abstract
of judgment and forward a certified copy to the Department of
Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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