People v. Daniel CA2/7 ( 2022 )

Filed 4/12/22 P. v. Daniel CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B305658
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA442821)
v.
DARIION DANIEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David V. Herriford, Judge. Reversed and
remanded with directions.
Mark R. Feeser, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David Madeo and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Dariion Daniel of murder, robbery,
kidnapping and carjacking following a trial covering two incidents
in 2015 and 2016. Daniel argues the trial court committed
prejudicial error by denying his motion to sever the trial of the two
incidents and his motions under Batson v. Kentucky (1986) 476
U.S. 79, 89 and People v. Wheeler (1978) 22 Cal.3d 258, 276-277
(Batson/Wheeler) following the People’s peremptory strikes of three
Black prospective jurors.
We disagree. The trial court did not abuse its discretion in
denying Daniel’s motion to sever, and joinder did not result in
gross unfairness. In addition, Daniel failed to make a prima facie
showing of discrimination for one of the challenged strikes, and
substantial evidence supported the court’s finding the other
strikes were not motivated by prejudice.
However, while the appeal was pending, the Legislature
amended Penal Code1 sections 1170, subdivision (b), and 654,
subdivision (a), which may result in a shorter sentence for Daniel.
The parties and the court agree judgment should be reversed for
resentencing under the amended statutes.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Incidents and the Charges
1. December 20, 2015 carjacking, kidnapping and robbery
Around 4:00 a.m. on December 20, 2015, Michael Yoshino
was driving for Uber when he picked up three young Black male
passengers at 46th Street and Vermont Avenue in Los Angeles.
One man (who Yoshino later identified as Daniel) sat in the front
passenger seat and instructed Yoshino to drive into an alley and
1 Undesignated statutory references are to the Penal Code.
2
stop the car. Daniel pulled out a gun and pointed it at Yoshino,
demanding his wallet and cell phones. A man in the backseat
reached into Yoshino’s pocket and took his wallet while Daniel
grabbed Yoshino’s two cell phones. Daniel ordered Yoshino to get
out of the car and lie face down on the ground while the three men
discussed whether to shoot him.
The men brought Yoshino back to the car, demanded his
ATM pin, and held him in the backseat at gunpoint. Daniel drove
the car to a nearby convenience store, where he and another man
withdrew $300 from Yoshino’s bank account. They got back into
the car, and Daniel resumed driving. Daniel told the two men in
the backseat with Yoshino to “do your thing.” The men in the
backseat punched Yoshino in the head. Daniel stopped the car,
and the men in the backseat dragged Yoshino out of the car and
onto the ground. Daniel “stomped” on Yoshino’s head, knocking
him unconscious. When Yoshino regained consciousness, his car
and the three men were gone.
2. January 4, 2016 murder and robbery
Around 7:00 p.m. on January 4, 2016, Stanley Montes,
Raphael Munoz, and brothers Fernando and Albert Gomez2 were
playing basketball on a parking lot court near 42nd Place and
South Figueroa Street in Los Angeles. Irving Garcia sat courtside
and filmed the game on Montes’s cell phone.
Two Black men approached Garcia and demanded his cell
phone. Garcia complied. The two men approached Montes on the
court. One of the men (who Fernando, Albert and Garcia later
identified as Daniel) held a gun. Daniel argued with Montes.
2 We refer to Fernando and Albert Gomez by their first names
for clarity.
3
Daniel fatally shot Montes several times in the chest before
leaving the scene with the other man.
3. The information
The amended information charged Daniel with six crimes for
the two incidents. For the December 2015 incident, Daniel was
charged with aggravated kidnapping for robbery (count 3; § 209,
subd. (b)(1)); aggravated kidnapping for carjacking (count 4;
§ 209.5, subd. (a)), carjacking (count 5; § 215, subd. (a)) and
robbery (count 6; § 211). For the January 2016 incident, Daniel
was charged with murder (count 1; § 187, subd. (a)) and robbery
(count 2; § 211). The information also specially alleged as to all
counts that Daniel personally used a firearm (§ 12022.53, subd.
(b)). Daniel pleaded not guilty to the charges and denied the
special allegations.
B. The Motion To Sever
Daniel’s counsel moved to sever the trial of counts 1 and 2,
arising from the January 2016 incident, from the trial of counts 3
through 6, arising from the December 2015 incident. Defense
counsel argued continued joinder3 would prejudice Daniel’s
defense because evidence of the separate incidents would not be
cross-admissible in separate trials, the incidents involved different
motives, and the stronger identification evidence in the carjacking
case would unfairly bolster the prosecution’s weaker identification
in the murder case, leading a jury to convict Daniel of murder
based on identification in the carjacking.
The People opposed, arguing there were similarities between
Yoshino’s carjacking in December 2015 and Montes’s murder in
3 The prosecutor previously successfully moved for joinder of
the cases relating to the carjacking and murder incidents.
4
January 2016. They occurred close in time and proximity.4 Each
incident involved accomplices, the wrongful taking of cell phones,
and Daniel’s use of a gun.5 The prosecutor also argued both cases
had “gang undertones.” Plus, because both incidents involved
assaultive crimes, they were of the same class for purposes of
joinder under section 954. Finally, the prosecutor contested
Daniel’s characterization of the murder case as weaker than the
carjacking case.
At the hearing, defense counsel argued the cell phone thefts
were ancillary crimes, and joinder made it difficult for a jury to
accept Daniel’s misidentification defense as to each incident. The
prosecutor reiterated both incidents involved gang undertones and
the same class of assaultive crimes, and neither case was weaker
than the other. Moreover, both offenses were reprehensible and
potentially subjected Daniel to life sentences.
The trial court acknowledged the judicial economy in joinder
and “agree[d] with the People that these are crimes of the same
class. They’re close in time. Close in proximity. There are a
certain number of similarities between the two incidents. They
4 The parking lot basketball court where Montes was fatally
shot is less than one mile from where Yoshino picked up Daniel.
5 Defense counsel argued it was unlikely the same gun was
used in the two incidents, given Yoshino’s testimony that Daniel
pointed a revolver at him during the carjacking, and a detective’s
testimony that Montes was fatally shot with a semiautomatic.
5
both have gang undertones. Both involve weapons. So for those
reasons the motion to sever is denied.”6
C. The Voir Dire and Batson/Wheeler Motions
During voir dire, the prosecutor exercised 16 peremptory
strikes against prospective jurors, and defense counsel exercised
11. Defense counsel made three Batson/Wheeler motions following
the prosecutor’s peremptory strikes of prospective jurors 1, 15 and
96, who were Black women. The trial court denied the motions as
discussed in detail below. Ultimately, the jury panel that heard
the case included two Black jurors.
D. The Trial
1. December 2015 kidnapping, carjacking and robbery
(counts 3-6)
a. The prosecution’s evidence
Yoshino identified Daniel in court as the front passenger
who had pulled a gun on him the night of the carjacking. Yoshino
testified that when he regained consciousness after the carjacking,
he walked to a nearby business and called 911. The responding
police officers drove Yoshino around the area so he could point out
where that night’s events took place. Yoshino saw his car
traveling in the police patrol car’s direction. Yoshino’s car pulled
into a nearby driveway, and the driver got out and fled the scene.
The driver’s clothes looked like those worn by the front passenger
who pulled the gun on Yoshino that night.
6 Before voir dire, defense counsel moved for reconsideration
of the motion to sever, arguing the jury might improperly use
evidence of the carjacking as past-act character evidence to find
Daniel guilty of Montes’s murder. The trial court denied the
motion.
6
Investigators recovered one of Yoshino’s cell phones and a
convenience store receipt from his car. Investigators identified
two suspects based on latent fingerprints pulled from Yoshino’s car
and showed Yoshino two six-pack photographic lineups about a
month after the carjacking. Yoshino testified he recognized
Daniel’s photograph in the first lineup as the front passenger who
pulled a gun on him the night of the carjacking, and he identified
one of Daniel’s accomplices in the carjacking in the second lineup.
Detective Eric Good also testified to Yoshino’s identification of
Daniel and an accomplice.
A police forensic print specialist testified he compared the
latent prints recovered from Yoshino’s car the day after the
carjacking with Daniel’s prints. The expert said he was “very
confident” that the same person had made both sets of prints.
An FBI special agent, who was a member of the agency’s
cellular analysis survey team, testified he analyzed Daniel’s cell
phone records and determined Daniel’s phone was pinging cell
towers close in time and proximity to both the carjacking and the
murder.
A hospital doctor examined Yoshino the night of the
carjacking. Yoshino did not display the key symptoms of and was
not diagnosed with a concussion.
b. The defense’s evidence
Cross-examination revealed discrepancies in Yoshino’s recall
of events and details from the night of the carjacking, including his
description of the gun-wielding front passenger’s physical
characteristics and clothing. In addition, Yoshino acknowledged
his glasses were knocked off during the carjacking and robbery,
after which he could not see faces as clearly.
7
Defense counsel cross-examined the prosecution’s forensic
print specialist with a 2008 audit of his lab. Although the audit
recommended blind verification7 as a quality control measure, the
lab no longer did it. A cognitive psychology professor testified
about factors compromising eyewitness identification accuracy. A
forensic DNA consultant testified it was possible to swab a car’s
interior for DNA evidence. But no DNA evidence was presented.
2. January 2016 murder and robbery (counts 1 and 2)
a. The prosecution’s evidence
Fernando and Albert identified Daniel in court as the person
who shot Montes and took Garcia’s cell phone.
Albert testified that three days after the shooting, he saw a
man on the street who had been involved in the shooting, and
Albert placed an anonymous 911 call reporting his sighting. In a
second 911 call, Albert reported that police had detained the man
he had seen. When calling 911, Albert “definitely one hundred
percent recognized” the man later identified as Daniel. Albert was
“a hundred percent sure” when identifying Daniel in court that he
was the man who had shot Montes.
Police detectives were interviewing Fernando about the
shooting when Albert made his 911 calls. Detective Christopher
Courtney testified that during the interview, they received a radio
call stating a suspect in the shooting (Daniel) was detained
nearby. The detectives transported Fernando to where Daniel was
detained for a field show up. On the way to the field show up,
Detective Courtney provided an admonishment to Fernando with
7 Blind verification refers to when two forensic specialists
separately compare fingerprints for a match and do not know each
other’s results until they both have completed the process.
8
instructions on how the field show up would be conducted. Both
Fernando and Detective Courtney testified to Fernando’s field
identification of Daniel. Specifically, Fernando testified that he
identified Daniel as the person who took Garcia’s cell phone and
shot Montes three days earlier. An audio recording of Fernando’s
field identification was admitted into evidence. Officer Alfredo
Aguayo testified that during an interview the night of the
shooting, Fernando described the shooter as someone of
approximately the same build, height and ethnicity as Daniel.
Munoz testified to the shooter’s height, build and skin color,
all of which were like Daniel’s.
When Garcia was shown Daniel’s booking photo at trial,
Garcia testified he recognized Daniel “a little bit,” based on his
facial hair, as the man who shot Montes and took Garcia’s phone.
b. The defense’s evidence
Defense counsel elicited testimony from Fernando and
Munoz that Daniel had referred to his accomplice as his younger
brother before the shooting. But a detective on the case did not
find any information indicating Daniel had a younger brother.
Cross-examination revealed numerous inconsistencies
between the eyewitnesses’ descriptions to law enforcement of the
shooter’s purported height, age, complexion and facial attributes.
Daniel had facial tattoos, but no eyewitness reported seeing
tattoos on the shooter’s face. Both Fernando and Albert testified
nothing had stood out to them about the shooter’s face on the night
of the shooting. Albert acknowledged he initially told police
detectives that he believed Daniel was the accomplice rather than
the shooter, but he had talked to Fernando, who thought Daniel
was the shooter.
9
Garcia testified he did not get a good look at the shooter’s
face. Garcia told defense counsel Garcia did not know whether
Daniel was the shooter.
When Munoz was shown a photographic lineup four days
after the shooting that had included Daniel’s photograph, he did
not recognize any of the individuals.
E. The Verdict and Sentencing
The jury found Daniel guilty of all counts and found true the
firearm allegations.8 The trial court sentenced Daniel to an
aggregate term of 50 years to life on count 1 (25 years to life for
first degree murder plus 25 years to life for the firearm
enhancement), plus 13 years on count 2 (the middle term of three
years plus 10 years for the firearm enhancement) to run
concurrently with the term imposed on count 1. The court
imposed a life term plus 10 years (for the firearm enhancement) on
count 3. The court stayed the sentences on the remaining counts
under section 654.
8 Before sentencing, defense counsel moved for a new trial
arguing, among other things, that the incidents should have been
severed for trial, and that the evidence at trial showed the
prosecution’s carjacking case against Daniel was significantly
stronger its homicide case. The trial court denied the motion.
10
DISCUSSION
A. The Trial Court Did Not Err by Denying Daniel’s Motion To
Sever, and Joinder Did Not Result in Gross Unfairness
1. Relevant law
“Section 954 allows for the joint trial of ‘two or more
different offenses . . . of the same class of crimes or offenses.’”9
(People v. Gomez (2018) 6 Cal.5th 243, 275 (Gomez).) “Joinder is
ordinarily favored because it avoids the increased expenditures of
funds and judicial resources that may result from separate trials.
[Citation.] Joinder, therefore, ‘is the course of action preferred by
the law.’” (People v. Simon (2016) 1 Cal.5th 98, 122 (Simon).)
“Nonetheless, a trial court has discretion to sever properly
joined charges in the interest of justice and for good cause.”
(Simon, supra, 1 Cal.5th at p. 122.)
2. Standard of review
Review of a trial court’s denial of a motion to sever requires
two steps.
In the first step, we review the order “for abuse of
discretion.” (People v. Vargas (2020) 9 Cal.5th 793, 817 (Vargas).)
Specifically, “we examine whether, in light of the information
available at the time, the trial court abused its discretion in
denying the severance motion prior to the guilt phase. [Citation.]
9 Section 954 provides in relevant part: “An accusatory
pleading may charge . . . two or more different offenses of the same
class of crimes or offenses, under separate counts . . . . [T]he court
in which a case is triable, in the interests of justice and for good
cause shown, may in its discretion order that the different offenses
or counts set forth in the accusatory pleading be tried separately
or divided into two or more groups and each of said groups tried
separately.”
11
Where, as here, the statutory requirements for joinder are met, a
defendant must make a ‘clear showing of prejudice’ to establish
that the trial court abused its discretion in denying the motion.
[Citation.] A defendant seeking severance of properly joined
charged offenses must make a stronger showing of potential
prejudice than would be necessary to exclude evidence of other
crimes in a severed trial.” (Simon, supra, 1 Cal.5th at pp. 122–
123.) “[T]he defendant must demonstrate the denial of his motion
[to sever] exceeded the bounds of reason.” (People v. Capistrano
(2014) 59 Cal.4th 830, 848 (Capistrano), overruled on another
ground in People v. Hardy (2018) 5 Cal.5th 56 (Hardy).)
We look at four factors to determine if a trial court abused
its discretion: First, “we consider ‘whether evidence of the crimes
to be jointly tried is cross-admissible.’ [Citation.] Second, we
address whether the charges are especially inflammatory. Third,
we consider whether a weak case has been joined to a strong one
‘so that the spillover effect of aggregate evidence might alter the
outcome of some or all of the charges.’ [Citation.] Finally, we
consider whether joinder renders the case capital when it would
not otherwise have been.”10 (Vargas, supra, 9 Cal.5th at p. 817.)
In the second step of reviewing a denial of a severance
motion, “[e]ven if a defendant fails to demonstrate the trial court’s
joinder ruling was an abuse of discretion when it was made,
reversal may nonetheless be required if the defendant can
demonstrate that ‘the joint trial resulted in such gross unfairness
as to amount to a due process violation.’” (People v. Landry (2016)
2 Cal.5th 52, 77 (Landry).)
10 Even without severance, Daniel did not face a capital case.
12
3. The trial court did not abuse its discretion by denying
Daniel’s motion to sever
The amended information properly joined the December
2015 and January 2016 incidents under section 954. Murder,
kidnapping and carjacking are all assaultive crimes against a
person and consequently of the same class. (See Vargas, supra, 9
Cal.5th at p. 817; Simon, supra, 1 Cal.5th at p. 150; Capistrano,
supra, 59 Cal.4th at p. 848.)
Daniel has not made a “clear showing of prejudice” (Simon,
supra, 1 Cal.5th at p. 123) or demonstrated the trial court’s denial
of his motion to sever “exceeded the bounds of reason” (Capistrano,
supra, at p. 848).
a. The evidence was not cross-admissible
The People concede evidence of the carjacking and evidence
of the murder would not be cross-admissible at separate trials.
But “‘the absence of cross-admissibility does not, by itself,
demonstrate prejudice.’” (People v. Vines (2011) 51 Cal.4th 830,
856, overruled in part on other ground as stated in Hardy, supra, 5
Cal.5th at p. 104; see People v. Johnson (2015) 61 Cal.4th 734, 751
[“absence of cross-admissibility cannot alone establish the
substantial prejudice necessary to make severance mandatory”].)
“‘[T]he absence of cross-admissibility alone would not be sufficient
to establish prejudice where (1) the offenses were properly joinable
under section 954, and (2) no other factor relevant to the
assessment of prejudice demonstrates an abuse of discretion.’”
(Capistrano, supra, 59 Cal.4th at pp. 849–850.)
b. The carjacking was not especially inflammatory
“‘The animating concern . . . is not merely whether evidence
from one offense is repulsive,’ but ‘“whether ‘“strong evidence of a
lesser but inflammatory crime might be used to bolster a weak
13
prosecution case” on another crime.’”’” (Gomez, supra, 6 Cal.5th at
p. 277; see People v. Elliott (2012) 53 Cal.4th 535, 553.) Where the
evidence underlying each of the counts joined in a single trial is
similar and equally reprehensible, the likelihood that particular
evidence will “unduly inflam[e]” the jury is remote. (People v.
McKinnon (2011) 52 Cal.4th 610, 631.) Moreover, “[t]he fact that
evidence of two violent crimes might lead a jury to infer that a
defendant is violent does not establish that any of the charges
were unusually likely to inflame the jury.” (Landry, supra, 2
Cal.5th at p. 78.)
Daniel’s sole argument is the carjacking was more likely to
inflame the jury than the murder because the carjacking was
particularly “repulsive” given the random and violent nature of the
assault.
We disagree that carjacking was more likely to inflame the
jury. First, as Daniel concedes, an assaultive crime resulting in
death is inherently more inflammatory than an assaultive crime
not resulting in death. Second, there was strong evidence of the
murder, including two eyewitnesses who identified Daniel as the
shooter and another eyewitness who identified the man in Daniel’s
booking photo as the shooter. Third, comparing the two crimes,
Montes’s murder was more repulsive and inflammatory than
Yoshino’s carjacking. Daniel sought out Montes on the basketball
court and fired four shots into Montes’s chest at close range, at
least three of which were independently fatal, in front of Montes’s
friends. While Yoshino testified Daniel had “stomped” on his head
during the carjacking, Yoshino did not experience signs of a
concussion when examined at the emergency room hours after the
incident.
14
c. Spillover prejudice was unlikely
“Even if the evidence in one case might be considered
stronger than the other, ‘[a] mere imbalance in the evidence . . .
will not indicate a risk of prejudicial ‘spillover effect,’ militating
against the benefits of joinder and warranting severance of
properly joined charges.’” (People v. Thomas (2012) 53 Cal.4th
771, 799.) “Furthermore, the benefits of joinder are not
outweighed—and severance is not required—merely because
properly joined charges might make it more difficult for a
defendant to avoid conviction compared with his or her chances
were the charges to be separately tried.” (People v. Soper (2009) 45
Cal.4th 759, 781 (Soper).) Instead, a defendant must show
sufficient disparity among joined counts such that “‘“‘the
“spillover” effect of aggregate evidence on several charges might
well alter the outcome of some or all of the charges.’”’”
(Capistrano, supra, 59 Cal.4th at p. 848.)
Daniel contends the People’s identification evidence was
stronger for the carjacking than the murder.
We disagree. The identification evidence in the two
incidents was equally strong. For the murder, three eyewitnesses
testified and identified Daniel as the shooter. Two witnesses,
Fernando and Albert, identified Daniel in court and out of court.
One witness, Garcia, identified the man in Daniel’s booking photo
as the shooter. For the carjacking incident, Yoshino testified and
identified Daniel in and out of court as his assailant. And Daniel’s
fingerprints were found in Yoshino’s car. Plus, Daniel’s cell phone
records placed him near both the murder and carjacking.
4. The joint trial did not result in gross unfairness
“In determining whether joinder resulted in gross
unfairness, [the Supreme Court has] observed that a judgment will
15
be reversed on this ground only if it is reasonably probable that
the jury was influenced by the joinder in its verdict of guilt.”
(Simon, supra, 1 Cal.5th at pp. 129-130.) “Appellate courts have
found ‘“no prejudicial effect from joinder when the evidence of each
crime is simple and distinct, even though such evidence might not
have been admissible in separate trials.”’” (Soper, supra, 45
Cal.4th at p. 784.)
Daniel has failed to show it is reasonably probable the jury
was influenced by joinder in its guilty verdicts. The evidence of
the murder and carjacking incidents was simple and distinct. (See
Elliott, supra, 53 Cal.4th at p. 552 [trial was not “grossly unfair”
where the testimony of one or more eyewitnesses identified the
defendant as the gunman involved in each incident].) None of the
eyewitnesses or crime scene evidence overlapped. The trial court
reinforced this evidentiary distinction to the jury at the transition
from testimony concerning the murder to testimony about the
carjacking: “So I think I mentioned to you at the beginning that
there are two incidents involved. You’ve been hearing about the
incidents that are the basis of counts 1 and 2. Now, we’re going to
switch over to . . . the separate incident that is the basis of counts
3, 4, 5 and 6.”
B. The Trial Court Did Not Err by Denying Daniel’s
Batson/Wheeler Motions
1. Relevant law
“Both the United States and California Constitutions
prohibit the exercise of peremptory strikes on the basis of race or
ethnicity.” (People v. Battle (2021) 11 Cal.5th 749, 772 (Battle),
citing Batson v. Kentucky, supra, 476 U.S. at p. 89, and People v.
Wheeler, supra, 22 Cal.3d at pp. 276-277.) “‘[A] prosecutor, like
any party, may exercise a peremptory challenge against anyone,
16
including members of cognizable groups. All that is prohibited is
challenging a person because the person is a member of that
group.’” (Hardy, supra, 5 Cal.5th at p. 78; see People v. Smith
(2018) 4 Cal.5th 1134, 1146 [a party “‘may exercise a peremptory
challenge for any permissible reason or no reason at all’”].)
“We follow a familiar three-step process in evaluating a
defendant’s Batson/Wheeler motion. First, the defendant must
make a prima facie case by showing facts sufficient to support an
inference of discriminatory purpose. [Citation.] Second, if the
defendant makes a prima facie showing, the burden shifts to the
prosecutor to offer a permissible, nondiscriminatory explanation
for the strike. [Citation.] Third, if the prosecutor offers a
nondiscriminatory explanation, the trial court must decide
whether that explanation is genuine, or whether impermissible
discrimination in fact motivated the strike.” (Battle, supra, 11
Cal.5th at p. 772.) “The defendant has the ultimate burden of
persuasion regarding the prosecutor’s motivation.” (Hardy, supra,
5 Cal.5th at p. 81; see People v. Gutierrez (2017) 2 Cal.5th 1150,
1158 (Gutierrez) [“In order to prevail, the movant must show it
was ‘“more likely than not that the challenge was improperly
motivated.”’”].)
On the third step, “‘“[t]he proper focus of a Batson/Wheeler
inquiry . . . is on the subjective genuineness of the race-neutral
reasons given for the peremptory challenge, not on the objective
reasonableness of those reasons . . . . All that matters is that the
prosecutor’s reason for exercising the peremptory challenge is
sincere and legitimate, legitimate in the sense of being
nondiscriminatory.”’ [Citation.] ‘“‘[T]he issue comes down to
whether the trial court finds the prosecutor’s race-neutral
explanations to be credible. Credibility can be measured by,
among other factors, the prosecutor’s demeanor; by how
17
reasonable, or how improbable, the explanations are; and by
whether the proffered rationale has some basis in accepted trial
strategy.’”’” (People v. Miles (2020) 9 Cal.5th 513, 539 (Miles).)
To assist the court in reaching its conclusion, a comparative
juror analysis “may be probative of purposeful discrimination at
Batson’s third stage.” (Gutierrez, supra, 2 Cal.5th at p. 1173; see
also People v. Mills (2010) 48 Cal.4th 158, 177 [“‘[c]omparative
juror analysis is a form of circumstantial evidence’ [citation] courts
can use to determine the legitimacy of a party’s explanation for
exercising . . . peremptory challenge[s]”].) “When a court
undertakes comparative juror analysis, it engages in a comparison
between, on the one hand, a challenged panelist, and on the other
hand, similarly situated but unchallenged panelists who are not
members of the challenged panelist’s protected group.” (Gutierrez,
at p. 1173.) In this case, a comparative analysis would compare
Black prospective jurors stricken by the prosecutor based on a
specific justification and similarly situated prospective jurors of a
different race whom the prosecutor did not challenge.
“‘“‘“[T]he trial court is not required to make specific or
detailed comments for the record to justify every instance in which
a prosecutor’s race-neutral reason for exercising a peremptory
challenge is being accepted by the court as genuine.”’”’ [Citation.]
But ‘“[w]hen the prosecutor’s stated reasons are either
unsupported by the record, inherently implausible, or both, more
is required of the trial court than a global finding that the reasons
appear sufficient.”’” (Miles, supra, 9 Cal.5th at p. 539.)
2. Standard of review
When a trial court has denied a Batson/Wheeler motion on
the first step, “we independently review the legal question whether
the trial court was required to elicit justifications” for the
18
challenged peremptory strike. (Unzueta v. Akopyan (2019) 42
Cal.App.5th 199, 213; accord, People v. Parker (2017) 2 Cal.5th
1184, 1211 [“‘we review the record independently to “apply the
high court’s standard and resolve the legal question whether the
record supports an inference that the prosecutor excused a juror”
on a prohibited discriminatory basis’”]; People v. Edwards (2013)
57 Cal.4th 658, 698 [“we independently review the record and
determine whether it ‘supports an inference that the prosecutor
excused a juror on the basis of race’”].) “Certain types of evidence
are especially relevant to this inquiry, including whether the
prosecutor has struck most or all of the members of the venire
from an identified group, whether a party has used a
disproportionate number of strikes against members of that group,
whether the party has engaged prospective jurors of that group in
only desultory voir dire, whether the defendant is a member of
that group, and whether the victim is a member of the group in
which the majority of the remaining jurors belong. [Citation.] We
may also consider nondiscriminatory reasons for the challenged
strikes that are ‘apparent from and “clearly established” in the
record.’ [Citation.] Yet we may do so only when these reasons
‘necessarily dispel any inference of bias,’ such that ‘“there is no
longer any suspicion . . . of discrimination in those strikes.”’”
(Battle, supra, 11 Cal.5th at p. 773.)
When a trial court has denied a Batson/Wheeler motion on
the “third-step determination on the ultimate issue of purposeful
discrimination, we apply the deferential substantial evidence
standard.” (Elliott, supra, 53 Cal.4th at 559.) In general,
“‘[r]eview of a trial court’s denial of a Wheeler/Batson motion is
deferential, examining only whether substantial evidence supports
its conclusions. [Citation.] “We review a trial court’s
determination regarding the sufficiency of a prosecutor’s
19
justifications for exercising peremptory challenges ‘“with great
restraint.”’ [Citation.] We presume that a prosecutor uses
peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses. [Citation.] So long as the trial court
makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are
entitled to deference on appeal.”’”11 (Miles, supra, 9 Cal.5th at
p. 539.)
“‘When a defendant asks for comparative juror analysis for
the first time on appeal, [the Supreme Court has] held that “such
evidence will be considered in view of the deference accorded the
trial court’s ultimate finding of no discriminatory intent.”’” (Miles,
supra, 9 Cal.5th at p. 541; see People v. Krebs (2019) 8 Cal.5th 265,
293.)
11 In 2020, the Legislature passed Assembly Bill 3070, which
enacted Code of Civil Procedure section 231.7 and codified the
principle that peremptory challenges may not be based on “race,
ethnicity, gender, gender identity, sexual orientation, national
origin, or religious affiliation, or the perceived membership of the
prospective juror in any of those group.” (Stats. 2020, ch. 318,
§§ 1-3; see Code Civ. Proc., § 231.7, subd. (a).) The statute imposes
new requirements on the party exercising a preemptory challenge,
the trial court’s evaluation of an objection to a preemptory
challenge and the standard of appellate review, including de novo
review of a denial of an objection made under the statute. (Code
Civ. Proc., § 231.7, subds. (c)-(g), (j).) The changes are effective for
criminal trials in which jury selection begins on or after January 1,
2022. (Code Civ. Proc., § 231.7, subd. (i).) Because Daniel was
tried in 2018 the new law does not apply to him.
20
3. Juror 1: Daniel failed to make a prima facie showing
of discrimination
a. Voir dire responses
Juror 1, a Black woman, worked as a bank call center
supervisor. Someone close to her had been arrested, and Juror 1
believed that person had been treated fairly. Juror 1 had been a
victim of attempted car theft but had not called the police.
Juror 1 said she previously served on two juries, one of
which did not reach a verdict. She found it frustrating when the
jury could not agree but believed the jurors had an honest
difference of opinion.
b. Batson/Wheeler motion
The prosecutor exercised his tenth peremptory challenge
against Juror 1. Defense counsel objected, made a Batson/Wheeler
motion, and requested a mistrial, arguing at sidebar that Juror 1
did not say anything tending to show bias and that Juror 1’s race
raised a protected class issue. The trial court responded, “I don’t
find a prima facie case at this time. I’ll deny any request for a
mistrial at this point. People don’t need to put anything on the
record, but if you want to you can.” The prosecutor offered, “The
primary reason for excusing juror number 1 is that they previously
served on a hung jury and we’re looking for people to resolve this
case and not people who come in and who have previously been in
a situation where they’re okay with not being able to resolve the
case in their minds. There’s nothing about this that is protective
[sic]. And, for the record, there still remains [sic] two other
African American jurors on the panel.” The trial court replied, “All
right. Thank you,” and excused Juror 1.
21
c. Analysis
The trial court denied Daniel’s Batson/Wheeler motion to the
People’s peremptory strike of Juror 1 at the first step.12
The trial court was not required to elicit a justification for
the challenged strike because the record did not support an
inference the prosecutor struck Juror 1 based on race. Juror 1
appears to have been the tenth prospective juror struck by the
People but the first Black individual. And two other Black
prospective jurors remained on the panel.13
In any case, the prosecutor provided a nondiscriminatory
reason for striking Juror 1. Juror 1 had served on a jury that
failed to reach a verdict after deliberation. More importantly,
Juror 1 had been frustrated by the experience. “[T]he
circumstance that a prospective juror has previously sat on a hung
12 Daniel argues this court should analyze each of his
Batson/Wheeler motions at the third step because the trial court
“did not clearly indicate whether it found a prima facie case,” and
“solicited and relied on the prosecution’s stated reasons” for the
strikes. Not true. The trial court explicitly said it did not find a
prima facie case for Juror 1. Although the court invited the
prosecutor to make a record of its reasons for striking Juror 1, the
court refrained from ruling on the proffered reason. “[A]n
appellate court properly reviews the first-stage ruling if the trial
court has determined that no prima facie case of discrimination
exists, then allows or invites the prosecutor to state reasons for
excusing the juror, but refrains from ruling on the validity of those
reasons.” (People v. Scott (2015) 61 Cal.4th 363, 386.)
13 In a March 22, 2021 letter to the superior court, the People
noted prospective jurors completed juror questionnaires during
voir dire, but that these questionnaires were not part of the
appellate record.
22
jury is a legitimate, race-neutral neutral reason for exercising a
strike.” (People v. Manibusan (2013) 58 Cal.4th 40, 78
(Manibusan); accord, People v. Reed (2018) 4 Cal.5th 989, 1001
(Reed); People v. Winbush (2017) 2 Cal.5th 402, 438-439 (Winbush)
[“Prior experience on a hung jury ‘constitutes a legitimate concern
for the prosecution, which seeks a jury that can reach a
unanimous verdict.’”].) That Juror 1 was struck for a race-neutral
reason is highlighted by the fact that the prosecutor had already
struck a non-Black juror, Juror 40, who previously served on a jury
that deliberated but disagreed on a verdict.
4. Juror 15: Substantial evidence supported the trial
court’s finding the strike was not motivated by
discrimination
a. Voir dire responses
Juror 15, also a Black woman, said she worked for the Los
Angeles County Department of Children and Family Services in
the bureau of finance and administration, collecting money from
lenders and sometimes daycare centers. She worked on the
clerical side, was not involved in department investigations, and
did not work directly with social workers. She had an aunt who
worked as a clerk for the sheriff’s department and another aunt
who worked as a human resources manager for the probation
department. She had positive experiences with Pasadena police
officers when she worked with the Pasadena school district. When
the court asked Juror 15, “It sounds to me like you can be fair and
impartial, right?” Juror 15 responded, “Yes.”
Defense counsel asked Juror 15 whether she would want a
juror with her state of mind if she were in Daniel’s seat. Juror 15
responded she would because she would be “fair” and “honest
about it.” She added that her job required her to “judge whether
23
or not someone is—if their paperwork is correct or whatnot. And I
just can’t look at one side and say, yeah, you’re lying or no you’re
not. I have to look at all sides of it and come up with a solution.”
Juror 15 confirmed that if, after deliberating, the other jurors were
prepared to vote guilty, but she was not convinced the People had
proved their case beyond a reasonable doubt, she would be able to
stick to her position.
The prosecutor asked Juror 15 about expert witness
testimony, “[W]hat are some of the things you would consider in
determining how much weight to give someone’s testimony?” Juror
15 responded she would consider “how long they’ve been in the
field.” When asked whether she would believe an expert
astrologer who had 45 years of experience and said the moon was
made of blue cheese, Juror 15 said she “would think he was lying
to me” because she had seen pictures of the moon and knew it was
not made of cheese. In response to the prosecutor’s questions,
Juror 15 said she did not have a problem using circumstantial
evidence even in the absence of direct evidence. But she clarified
she “probably” could conclude the prosecutor was sitting in a chair
if he left his fingerprint there and his pencil box, phone, business
cards, and coffee cup, noting that other prosecutors could have
been sitting in the chair, but no one looked for their fingerprints.
The prosecutor asked no other questions of Juror 15.
b. Batson/Wheeler motion
The prosecutor used his eleventh peremptory challenge to
excuse Juror 15 from the panel. Defense counsel again objected,
saying at sidebar, “Same argument. Same request.” The trial
court requested to hear from the prosecutor, who replied, “I’m
excusing her because she does work for the Department of
Children and Family Services. After some consideration, I’m not
24
[sic] looking based on her occupation, but I think it’s one that
involves listening to a lot and shuffling through a lot of paperwork
with a lot of people and telling conflicting stories and something
that involves social services. And based on her occupation, I don’t
feel that she would be the appropriate juror in this case.”
Defense counsel responded he understood Juror 15 to work
in “more of like a clerical job. I don’t believe there’s anything in
the record that she is dealing with high pressure [o]r high
emotional situations. And I think even if that was the case, I don’t
think that’s a reasonable reason to dismiss her. I don’t think
there’s any basis whatsoever that she has given in any of her
answers to suggest that she could be anything but fair and
impartial, and I would ask that she be allowed to s[t]ay on the jury
as the remedy.”
The trial court replied, “when I heard her answers I didn’t
see that she’s a clerical person, so I don’t know. I mean, obviously,
I must accept your explanations unless they’re completely
illogical.” When the court asked whether the prosecutor wanted to
add anything to the record, the prosecutor said, “It’s no more
illogical than excusing people who work in elementary schools or
any other particular line of work. I do think that as clerical staff
one of her duties is going to be reviewing and typing reports. She
has contact with that. Also, I’ll note that there is one African
American left on the panel that has not been kicked.” The court
observed, “Last time you noted there were two.” The prosecutor
continued, “there’s also a number of peremptory challenges that
have all been exercised across the board against men, women,
Hispanics, whites,” at which point the court interjected, “But not
Black.” The court continued, “I’ll just say these issues are always
very difficult. And I’m a little concerned about this one only
because her answers were very thoughtful and she seemed like a
25
very neutral person. However, I have to look at the overall
picture. And out of all of the [peremptory challenges], I think the
defense has excused one African American juror and the People
have excused two. And given the overall number of people
excused, I can’t say that I see a pattern of discrimination at this
point. But I am concerned. I’ll just say that. So I will deny the
request at this time.”
Defense counsel noted that the Black prospective juror he
had struck was an “ex-LAPD gang police officer.” The trial court
responded, “I understand why you excused him. And I’m certainly
not saying that was racially based at all. That was perfectly
logical. I’m just looking at the numbers. Because, again, the fact
that you excused him, the People probably would have accepted
him . . . . I’m just looking at it that way.” Defense counsel added,
“For the record, I am asking for remedy. I’m asking for her to
remain seated. If the court is unwilling to do that, I’m asking for a
new panel. If the court is not willing to do that, I’m asking for a
mistrial.” The trial court concluded, “all of those requests are
denied on the basis that I’m not making a finding that that
particular exercise of peremptory is unconstitutionally based.”
c. Analysis
The trial court denied Daniel’s Batson/Wheeler motion
regarding Juror 15 at the third step. The court’s implied finding
the prosecutor’s race-neutral explanation was genuine and
legitimate is supported by substantial evidence.
First, the prosecutor gave a nondiscriminatory reason for the
challenged strike, supported by the record. The prosecutor said he
struck Juror 15 because she worked for a social services agency—
the Department of Children and Family Services. Daniel concedes
that a prosecutor may permissibly exercise a peremptory strike
26
against a prospective juror based on his or her employment in a
social services field. (See People v. Clark (2011) 52 Cal.4th 856,
907 [concluding as to juror who helped homeless people obtain
social service benefits, “[a] peremptory challenge based on a juror’s
experience in counseling or social services is a proper race-neutral
reason for excusal”].) Even though Juror 15 worked in a clerical
job and did not work directly with social workers, substantial
evidence supports the trial court’s implied finding the prosecutor’s
belief was genuine that people working for agencies like the
Department of Children and Family Services are ill-suited to serve
as jurors because they are not sympathetic to the prosecution.
(See People v. Chism (2014) 58 Cal.4th 1266, 1316 [“A peremptory
challenge may be based on employment [citation], and
‘“hunches[,]” and even “arbitrary” exclusion is permissible, so long
as the reasons are not based on impermissible group bias’”]; People
v. Reynoso (2003) 31 Cal.4th 903, 924-925 [although prosecutor’s
stated basis for a challenge to a prospective juror that she was a
customer service representative and therefore lacked sufficient
educational experience was not objectively persuasive, that did not
mean the justification was not sincere and legitimate].) “Whether
a prosecutor’s generalizations about a given occupation have any
basis in reality or not, a prosecutor ‘surely . . . can challenge a
potential juror whose occupation, in the prosecutor’s subjective
estimation, would not render him or her the best type of juror to
sit on the case for which the jury is being selected.’” (People v.
Trinh (2014) 59 Cal.4th 216, 242; accord, Reynoso, at pp. 924-925.)
Second, substantial evidence supports the trial court’s
finding, after reviewing each side’s peremptory challenges and the
makeup of the remaining panel, that there was not a pattern of
discriminatory challenges. Counsel had collectively exercised 18
peremptory strikes “against men, women, Hispanics, [and]
27
Whites” before the prosecutor requested to excuse Juror 15.
Defense counsel had excused one Black juror, and the prosecutor
had excused two Black jurors (Juror 1 and Juror 15). Moreover,
the court noted “the People probably would have accepted” the
Black juror excused by defense counsel, who had been a Los
Angeles Police Department gang police officer (although we
recognize that prosecutors typically would like to have police
officers on the jury). And the jury panel still included one Black
prospective juror.
Third, as Daniel acknowledges, two Black jurors remained
on the panel for trial after an additional jury panel was brought
into the courtroom and questioned. “[U]ltimate inclusion on the
jury of members of the group allegedly targeted by discrimination
indicates ‘“good faith”’ in the use of peremptory challenges, and
may show under all the circumstances that no Wheeler/Batson
violation occurred.” (People v. Garcia (2011) 52 Cal.4th 706, 747-
748; see People v. Bell (2007) 40 Cal.4th 582, 599 [no inference of
discrimination where the jury included three Black men, even
though the prosecutor had exercised peremptory challenges
against two of three Black women], disapproved on another ground
as stated in People v. Sanchez (2016) 63 Cal. 4th 665, 686; People
v. Arias (1996) 13 Cal.4th 92, 136, fn. 15 [the number and order of
minority prospective jurors challenged, compared to the
representation of such minority groups in the entire venire, was
not sufficient to establish prima facie case, particularly where the
jury included members of the same minority groups]; People v.
Jones (2017) 7 Cal.App.5th 787, 803, 806 [no inference of
discrimination where the prosecutor exercised three of nine
peremptory challenges against Black prospective jurors but
retained two Black jurors on the panel].)
Daniel’s counterarguments are unpersuasive.
28
Daniel argues the trial court failed to adequately scrutinize
the People’s justification based on its finding it had to accept the
People’s explanations unless they were illogical or nonsensical, but
this was inconsistent with the court’s duty to make “a ‘sincere and
reasoned effort to evaluate the nondiscriminatory justifications
offered.’” (Gutierrez, supra, 2 Cal.5th at p. 1159.)
But when a prosecutor’s reason for striking a prospective
juror is not inherently implausible and is supported by the record,
“‘“the trial court need not question the prosecutor or make detailed
findings.”’” (Hardy, supra, 5 Cal.5th at p. 76; accord, Gutierrez,
supra, at pp. 1159, 1171.) Although the trial court acknowledged
the striking of Juror 15 caused the court to be “concerned,” and we
agree, the justification provided by the prosecutor was plausible
and supported by the record. (See Miles, supra, 9 Cal.5th at
pp. 540-541 [“the trial court could have done more to make a fuller
record,” but because “the record show[ed] that the court considered
the prosecutor’s reasons,” and “those reasons were plausible and
supported by the record,” “the trial court’s findings [were] entitled
to deference”]; People v. Baker (2021) 10 Cal.5th 1044, 1080 [the
law “does not require a court in all circumstances to articulate and
dissect at length the proffered nondiscriminatory reasons for a
strike,” and “deference is appropriate” where the trial court makes
“a sincere and reasoned effort to evaluate the justifications
proffered”]; see People v. Mai (2013) 57 Cal.4th 986, 1053-1054
[“terse ruling” not incompatible with sincere and reasoned effort to
evaluate prosecutor’s reasons where those reasons were plausible
and supported by the record]; People v. Jones (2011) 51 Cal.4th
346, 361 [“the [trial] court was not required to do more than what
it did” where it denied Batson/Wheeler motion after listening to
prosecution’s reasons for its peremptory challenges and inviting
29
defense counsel to respond].) We defer to the court’s credibility
determination. (People v. Smith, supra, 4 Cal.5th at p. 1158.)
Daniel also argues the prosecutor’s reason for the strike was
likely a pretext to exclude a Black juror. Daniel contends the
prosecutor’s failure to ask Juror 15 any questions during voir dire
about her job belied the sincerity of the prosecutor’s justification
for striking Juror 15 based on that job. But both the trial court
and defense counsel had questioned Juror 15 about her job. (See
People v. Melendez (2016) 2 Cal.5th 1, 19 [prosecutor’s failure to
question a challenged juror was “of little significance” where the
court used a questionnaire and attorneys for the defendants
questioned the juror at length].)
Finally, Daniel’s comparative juror analysis on appeal is
unconvincing. Daniel’s analysis ignores the primary reason given
for the People’s strike—Juror 15’s employment at a social services
agency—and selectively compares Juror 15 to prospective jurors of
other races whose jobs included clerical duties and review of
paperwork in private professional services firms.
5. Juror 96: Substantial evidence supported the trial
court’s finding the strike was not motivated by
discrimination
a. Voir dire responses
Juror 96, also a Black woman, owned and managed a
childcare center. She said she was a good judge of credibility and
could be fair to both sides. She had been close to her late father-
in-law, a former police officer with the airport police department,
and she had neutral feelings about police officers in general.
Juror 96 said that she served as the foreperson on a jury
about 10 years prior, that the jury failed to reach a verdict, and
that she had found the experience frustrating in part because she
30
held the minority opinion on that jury. When asked whether the
jurors in that case had an honest disagreement or whether she
believed some jurors had not followed the rules, she responded, “I
think that it was kind of honest. It was just I think that the
lawyers probably could have done a better job as far as letting us
know some stuff was muddy. So because it was muddy that way,
we just couldn’t come up with an actual verdict on it.” She
believed some of the jurors “just didn’t understand the instructions
given by the judge. And even though we tried to explain it, we just
did not come to an agreement.” The “prosecutor wasn’t compelling
enough” in that case.
b. Batson/Wheeler motion
The prosecutor used his sixteenth peremptory challenge to
excuse Juror 96 from the panel. Defense counsel objected, saying
at sidebar, “That’s the third African American juror being kicked
by the People. We’re making the objection as we did on the
previous for Batson-Wheeler and we’re asking for her to remain
seated as a juror.” The trial court replied, “I think there may be a
prima facie case, but let me hear from the People.” The prosecutor
explained, “This particular juror indicated that she was previously
on a hung jury. As I previously indicated, we’re removing jurors
who we believe were previously on hung juries. Not only that, but
during questioning she suggested that she was in the minority and
voted not guilty on that hung jury. I also note there is not one but
two African American jurors on this panel.” The trial court
concluded, “The court again has to accept those explanations
unless they’re completely nonsensical. And she did make those
statements regarding the other jury. So I will deny your challenge
at this time and I will release her. She’ll be excused.”
31
c. Analysis
The trial court denied Daniel’s Batson/Wheeler motion
regarding Juror 96 at the third step. Again, although not explicit,
the trial court necessarily found the prosecutor’s race-neutral
explanation credible.
The court’s finding is supported by substantial evidence.
First, the prosecutor gave a nondiscriminatory reason for the
challenged strike, supported by the record. The prosecutor struck
Juror 96 because she previously had served on a hung jury and
had held a minority opinion on that jury. As discussed, “the
circumstance that a prospective juror has previously sat on a hung
jury is a legitimate, race-neutral neutral reason for exercising a
strike.” (Manibusan, supra, 58 Cal.4th at p. 78; accord, Reed,
supra, 4 Cal.5th at p. 1001; Winbush, supra, 2 Cal.5th at pp. 438-
439.) Moreover, as with Juror 1, the fact the prosecutor had
already struck a non-Black juror, Juror 40, who had previously
served on a hung jury, lends credibility to the People’s reason for
striking Juror 96.
Second, the final jury panel included two Black jurors,
indicating Juror 96 was struck in good faith for a
nondiscriminatory reason. (See People v. Garcia (2011) 52 Cal.4th
706, 747-748.)
Contrary to Daniel’s contention, the trial court did not fail to
scrutinize the People’s justification. Where, as here, the
prosecutor provided a legitimate reason for a strike, that reason
was supported by substantial evidence in the record, and the trial
court listened to both the prosecutor’s explanations and defense
counsel’s response, the law does not require the court to articulate
its analysis at length before its findings are entitled to deference.
(People v. Baker, supra, 10 Cal.5th at p. 1080; People v. Mai,
32
supra, 57 Cal.4th at pp. 1053-1054; People v. Jones, supra, 51
Cal.4th at p. 361; People v. Smith, supra, 4 Cal.5th at p. 1158.)
C. Daniel Is Entitled to Resentencing Under A.B. 518 and S.B.
567
The parties agree and the court concurs Daniel is entitled to
retroactive application of Assembly Bill 518 (Stats. 2021, ch. 731,
§ 1.3); (2) Assembly Bill No. 518 (2021-2022 Reg. Sess. (A.B. 518))
and Senate Bill 567 (2021-2022 Reg. Sess. (S.B. 567).
The Legislature passed these bills while this appeal was
pending. When Daniel was sentenced, section 654, subdivision (a)
“required an act or omission punishable in different ways by
different laws to be punished under the law that provided for the
longest potential term of imprisonment. A.B. 518 amended Penal
Code section 654 [subdivision (a)] to afford sentencing courts the
discretion to punish the act or omission under either provision.”
(People v. Mani (2022) 74 Cal.App.5th 343, 351). The amended
statute could change Daniel’s sentence on counts 3, 4, 5 and 6 and
shorten his sentence. Likewise, when Daniel was sentenced,
section 1170, subdivision (b), gave the court discretion to choose
whether to impose the lower, middle or upper prison term in the
interest of justice. S.B. 567 amended subdivision (b) to require the
imposition of the low term if, among other things, youth or a
defendant’s psychological, physical or childhood trauma
contributed to the offense “unless the court finds that the
aggravating circumstances outweigh the mitigating circumstances
that imposition of the low term would be contrary to the interest of
justice.” (§ 1170, subd. (b)(6)(A)-(B).) The amended statute could
potentially change Daniel’s sentence on counts 2, 5 and 6 and
shorten his sentence.
33
Because his judgment is not yet final and these statutes
were amended to lessen the punishment for his crimes, he should
be resentenced in light of them. “If the amendatory statute
lessening punishment becomes effective prior to the date the
judgment of conviction becomes final then, in our opinion, it, and
not the old statute in effect when the prohibited act was
committed, applies.” (In re Estrada (1965) 63 Cal.2d 740, 744.)
DISPOSITION
The judgment is reversed, and the case is remanded for
resentencing.
IBARRA, J.*
We concur:
SEGAL, Acting P. J.
FEUER, J.
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
34