Opinion
F077140
09-24-2020
THE PEOPLE, Plaintiff and Respondent, v. DANIEL WAYNE RANNELS, Defendant and Appellant.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MF012486A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted defendant Daniel Rannels of four counts of infliction of corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), assault with a caustic chemical (§ 244), dissuading a witness by force or threat (§ 136.1, subd. (b)(1)), and misdemeanor false imprisonment (§ 236). He appeals his convictions, arguing his counsel was ineffective in failing to file a Batson/Wheeler motion during voir dire. He further contends the trial court erred in denying his motion for self-representation during sentencing as untimely. Finally, he argues his case should be remanded for a new sentencing hearing to permit the court to exercise its discretion and decide whether to strike the prior serious felony enhancement in light of Senate Bill No. 1393. (Stats. 2018, ch. 1013, §§ 1-2, pp. 1-6 (Senate Bill No. 1393).)
Unless otherwise indicated, all further statutory references are to the Penal Code.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
We remand for a new sentencing hearing to permit the court to exercise its discretion and determine whether to strike defendant's prior serious felony enhancement. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, C.M., was previously in a relationship with defendant; they lived together and had two children together. C. and defendant began using methamphetamine and marijuana and accusing each other of infidelities. Over time, defendant became violent.
The prosecution introduced expert testimony that C. had a significantly depressed IQ, she suffered from major depression, and her use of methamphetamine affected the functioning of her brain.
At trial, C. testified regarding numerous instances of domestic violence. She recalled an incident in 2016 when defendant accused her of infidelity; she denied his accusation and he punched her in the forehead, causing her to bleed. The wound took approximately a month to heal and resulted in a scar on C.'s forehead. On another occasion, defendant again accused C. of infidelity and "head-butted" her in her mouth causing her tooth to become loose. He once gave C. a black eye; another time, he stomped on her shins in steel-toed boots, resulting in painful marks that took three weeks to heal. He also once sprayed C. in the face with pepper spray, threatening to blind her while accusing her of infidelity.
Defendant would lock C. in their room when he left the house and handcuff her to the nightstand at night; C. believed he used the handcuffs for her protection. Defendant would not let C. leave their house because he thought she was having sex with other men. He was also concerned she was letting men in their house and having sex with them. C. testified defendant was paranoid because of the methamphetamine. She recalled that he would sleep with a firearm; she saw him point the firearm at the closet on occasion because he believed someone was there.
Eventually, defendant's children snuck C. out of the house and took her to stay in Las Vegas. C. did not pack clothes, her phone or identification because she "had to go." She eventually called the police.
A forensic nurse examined C. and documented her injuries, including a healed scar on C.'s face and multiple healed scars and injuries all over her body, including on her back, shoulder, ankle, wrist, bicep, and right forearm. The prosecutor introduced photographs of the marks on C.'s back that, C. testified, resulted from defendant punching and jabbing her.
Defendant testified on his own behalf that he and C. met in 2010 and had a common law marriage. He noticed a change in C. in 2013; she became "irradical [sic], very illusive [sic], strange, ... and very, very extra promiscuous." She used methamphetamine when she was out and would hide it from defendant. She would be intoxicated and became disrespectful and could not maintain eye contact. Defendant suggested it was best for C. to stay in the house because the neighborhood was dangerous. He wanted to keep her away from the people she was hanging out with who were influencing her to do drugs. He suspected that C. was sleeping with other men for money.
Defendant recalled C. having a black eye at one point; C. told him the neighbor had hit her after they did drugs and had sex. He testified C. had a scar on her forehead when he met her and that she was "jumped" by three women once, and they left marks on C.'s back. He denied prohibiting C. from leaving the house or handcuffing her against her will. He testified he called C.'s aunt three different times to come pick her up; the first time he wanted C. to get help for her drug addiction. The second and third times he called C.'s aunt because C. had taken things from their house to support her drug addiction and brought men into their house. Each time C.'s aunt brought her back because she could not take care of her.
The jury reached a verdict on seven of nine charged counts against defendant. The court declared a mistrial as to the remaining two counts and the prosecutor dismissed them. The jury convicted defendant of felony infliction of corporal injury on a spouse/cohabitant on her shins (count 1) and found true an enhancement defendant used a deadly weapon—steel-toed boots—in the commission of the offense. They also convicted defendant of felony infliction of corporal injury on a spouse/cohabitant with pepper spray (count 2), in the infliction of a scar on the head of his spouse/cohabitant (count 3), and in relation to the bruises on C.'s back (count 4). They further convicted defendant of assault with a caustic chemical (count 5), preventing or dissuading a witness from reporting a crime, enhanced by an allegation he acted maliciously through the use of force or threat of force or violence (count 9), and misdemeanor false imprisonment (count 10).
The court declined to dismiss defendant's strike prior and sentenced defendant to an aggregate term of 23 years' imprisonment: the upper term of eight years on count 1, a consecutive term of two years (one-third of the midterm) on count 2, a consecutive term of two years (one-third of the midterm) on count 3, a consecutive term of two years (one-third of the midterm) on count 4, the upper term of eight years on count 5 stayed pursuant to section 654, and a consecutive term of four years (the midterm) on count 9 enhanced by a term of five years for defendant's prior serious felony conviction pursuant to section 667, subdivision (a)(1).
DISCUSSION
I. Counsel Was Not Ineffective for Failing to Raise a Batson/Wheeler Challenge
Defendant argues his counsel was ineffective for failing to raise a Batson/Wheeler challenge. We disagree.
A. Relevant Factual Background
During voir dire, prospective Juror No. 9, who is African-American like defendant, reported she knew defense counsel because he had represented her in a fraud case seven years earlier. In response to subsequent questioning, Juror No. 9 revealed she had previously served on a hung jury in a criminal case of which she was in the minority. She agreed if she were to serve on the jury in this case she had a duty to attempt to reach a verdict and that she could disregard her prior jury experience. She reported her brother-in-law (her husband's brother) had been charged with crimes similar to the spousal abuse charges in this case; but she agreed not to be influenced by her brother-in-law's experience. She also stated her husband went to jail as a result of a clerical error. She stated she believed she could be fair.
The prosecutor used a preemptory challenge to strike Juror No. 9. Defense counsel did not bring a Batson/Wheeler motion based on the strike and stated on the record the reasoning behind his decision:
"[DEFENSE COUNSEL]: ... your Honor, the reason I did not make a Batson-[W]heeler motion is for several reasons. Number one, [Juror No. 9] was my client. I remember actually meeting her mother as well. We got that case—
"THE COURT: She was prosecuted by the D.A.'s Office?
"[DEFENSE COUNSEL]: Absolutely. And I defended her when I was in the Public Defender's Office on a misdemeanor. And this is over ten years ago, way over ten years ago. And she had her case dismissed. It was obvious that she did not think I was an inept nincompoop. So she was satisfied with that.
"She was in a jury where she had been part of the minority in a hung jury. She has several members of her family that have been prosecuted by the D.A., including herself. Her husband was kept—or her brother-in-law was kept in jail because of a clerical error caused by actions initiated by the D.A.'s office.
"For all those reasons, it became obvious to me—I am an experienced attorney. I hope I am good experienced. And my client, not having that, he could have neglected to see the reasons why [the prosecutor] can lawfully exercise a peremptory challenge. There was nothing improper on his conduct.
"The reason I am putting this on the record is because I want to make sure that is clear so that in case that this thing goes for another court to look at—[Juror No. 9] is African-American. My client is African-American. And normally I will have made a grumbling noise at least, but there was no basis for me to make that.
"I am obligated, beyond my obligation to my client, to the Court, not to make frivolous motions. I am not going to do that because I have a duty, as an attorney, not to do such things...."
The prosecutor also "preemptively" stated his reasons for striking Juror No. 9 on the record, indicating defense counsel "hit it on the head." The juror's previous participation on a hung jury, of which she was in the minority, was ultimately the deciding factor:
"Normally, I wouldn't care that she had a brother-in-law accused of domestic violence, though that would be a point against. I am willing to look past that, but that is a factor to consider.
"The fact that her husband had a case, that also is not a make-or-break deal. But that's always a concern, for the same reason that the defense has been kicking anyone who knows a victim of domestic violence.
The fact is, when you see someone that's been through what the other side has gone through, you are always worried about undue sympathies.
"Even the fact that she was represented by [defense counsel], I was already flip-flopping on that when we heard it before she was even sat, because that's a real concern. She said she can be fair, but there's no guarantee. And I have learned through my experience that I have had jurors tell me to my face they can be fair, and I only found out later they were lying. And I don't get to take that back. I don't have a right to appeal. And I was very concerned about that.
"What ultimately made up my mind was when I did hear that she was part of a hung jury and in the minority, which indicates to me—I don't know the specifics. I wasn't going to ask her. You know, I can't speculate as to the exact reason why. But there's just another significant chance that her perception on how to read evidence is different than the majority of jurors. It's not guaranteed, but that's—at this point there's too many chances that I couldn't take. And so that's why I made a motion."
The court also memorialized on the record it did not see a prima facie case of discrimination:
"THE COURT: I will confirm that, obviously, the Court is always thinking about Batson-Wheeler issues during jury selection. And I realize that Juror No. 9 ... was the only African-American in the group of 12. [Defendant] is African-American. So I knew that that had to be something that we'd think about. However, I was also thinking about the same things that both counsel have pointed out.
"There are a number of good reasons why a reasonable, nonracist, nonbiased prosecutor would have good cause to—or have a reasonable basis to want to excuse a juror. And the reasons counsel have stated would all be included. I did not find a prima facie case of discrimination under the Batson-Wheeler rules existed, and I will confirm that as well."
B. Standard of Review
"To demonstrate ineffective assistance of counsel, a defendant must show that counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) To establish prejudice, a defendant must show a reasonable probability that, but for counsel's failings, the result of the proceeding would have been more favorable to the defendant. (Id. at p. 694.)" (People v. Hinton (2006) 37 Cal.4th 839, 876 (Hinton).) We "'"... defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation] ....'" (Ibid.) "'"[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." [Citation.]'" (Ibid.)
C. Applicable Law
The federal and state Constitutions forbid the removal of prospective jurors "based on group bias, such as race or ethnicity[.]" (People v. Blacksher (2011) 52 Cal.4th 769, 801.) Claims that the prosecution impermissibly exercised a peremptory challenge based on group bias require a three-step analysis. (See People v. Duff (2014) 58 Cal.4th 527, 545.) First, the defendant must "'make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the ... exclusion" by offering permissible ... neutral justifications for the strikes. [Citations.] Third, "[i]f a ... neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful ... discrimination." [Citation.]'" (Ibid.)
"Although the question at the first stage concerning the existence of a prima facie case depends on consideration of the entire record of voir dire as of the time the motion was made [citation], [the California Supreme Court has] observed that certain types of evidence may prove particularly relevant. [Citation.] Among these are that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and 'clearly established' in the record [citations] and that necessarily dispel any inference of bias." (People v. Scott (2015) 61 Cal.4th 363, 384.)
"[W]e independently review the record" to determine whether "the circumstances of the case raise an inference that the prosecutor excluded a prospective juror based on race[]" or another cognizable ground. (People v. Harris (2013) 57 Cal.4th 804, 834.)
D. Analysis
Defendant asserts the record establishes a prima facie case of discrimination. He contends the prosecutor's stated reasons for striking Juror No. 9 were "clearly pretextual" given that the prosecutor did not ask Juror No. 9 follow-up questions to learn more about the prior case or whether it would have a lasting impact on the juror. Additionally, the juror stated "that it would not affect her service and agreed she was obligated to try to reach a verdict in this case." Defendant argues the prosecutor's use of the preemptory challenge violated his right to equal protection, due process, and the "fair-cross-section requirement[,]" and his counsel's failure to act was ineffective assistance requiring reversal of the judgment. The People respond defense counsel articulated on the record the reasons he did not believe there was a prima facie case of purposeful discrimination resulting from the prosecutor's excusal of Juror No. 9—he had previously represented the juror, she was part of a hung jury in the past, and the juror's family members had been prosecuted by the district attorney's office. Accordingly, defense counsel "had a reasonable basis not to make a Batson/Wheeler motion when the prosecutor excused [Juror No. 9]." We agree with the People.
"Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) And here, defense counsel reasonably determined a Batson/Wheeler motion would be futile.
As defense counsel, the prosecutor, and the court all acknowledged, the voir dire record revealed permissible, race-neutral grounds upon which the prosecutor could strike Juror No. 9, including her previous participation on a hung jury. (See People v. Manibusan (2013) 58 Cal.4th 40, 78 ["[T]he circumstance that a prospective juror has previously sat on a hung jury is a legitimate, race-neutral ... reason for exercising a strike."]; People v. Farnam (2002) 28 Cal.4th 107, 138 [previous service as juror in case that resulted in hung jury "'constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a unanimous verdict'" and was an ample reason for which counsel could reasonably strike juror].) While it is true the prosecutor's striking of Juror No. 9—the only prospective African-American juror—could be probative of an intent to discriminate, this fact is not considered in isolation when considering whether an inference of discrimination exists. (See People v. Scott, supra, 61 Cal.4th at pp. 384-385.) Rather, the court is tasked with considering "the totality of the relevant facts in determining whether an inference of discrimination exists." (Id. at p. 385.)
Because, when viewed as a whole, the record here establishes nondiscriminatory reasons for excusing prospective Juror No. 9 that dispel an inference of bias, it was not unreasonable for defense counsel not to pursue a Batson/Wheeler motion he believed to be meritless. (See People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24 ["The Sixth Amendment does not require counsel to raise [such] futile motions."].) Thus, defendant has not overcome the strong presumption that defense counsel's conduct fell within the wide range of reasonable professional assistance.
Furthermore, in light of the court's explicit comments on the record and the neutral grounds for the prosecutor's preemptory challenge, we cannot conclude defendant was prejudiced by his counsel's failure to bring a Batson/Wheeler motion. Here, the court expressly stated on the record that it did not find a prima facie case of discrimination; thus, it is clear the court would have denied a Batson/Wheeler challenge had one been raised. And, as discussed, the court would have acted within its discretion in denying such a motion in light of the neutral, nondiscriminatory reasons for the prosecutor's use of the preemptory strike. Accordingly, defendant has not established he was prejudiced by his counsel's failure to bring such a challenge. (Strickland, supra, 466 U.S. at p. 687.)
We reject defendant's first contention.
II. Court Did Not Err in Denying Defendant's Motion for Self-representation
Defendant next argues the trial court erred in denying his request to represent himself during the sentencing proceeding under Faretta v. California (1975) 422 U.S. 806 (Faretta).
A. Procedural History
The jury rendered its verdict on January 23, 2018. The sentencing hearing was initially scheduled to occur on February 22, 2018. On that day, the parties appeared and defense counsel sought a continuance of the hearing until March 8, 2018.
On March 8, 2018, right before the sentencing hearing, defendant moved to discharge his counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The court denied the motion. Defendant then moved to represent himself during the sentencing proceedings pursuant to Faretta. The court held the motion "was not made within a reasonable time before trial[,]" and it believed at that stage defendant "intended to misuse this motion to unjustifiably delay the sentencing and [it] would obstruct the orderly administration of justice." Accordingly, the court denied the motion and proceeded with sentencing.
B. Standard of Review and Applicable Law
A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution, including sentencing. (People v. Doolin (2009) 45 Cal.4th 390, 453 (Doolin).) However, a defendant also has the constitutional right to waive his right to counsel and represent himself upon a timely and unequivocal request. (Faretta, supra, 422 U.S. at pp. 819, 834-835; People v. Marshall (1997) 15 Cal.4th 1, 20.)
A defendant has "an absolute right to represent himself at sentencing and the trial court [is] required to grant his request for self-representation[]" if the request is timely and unequivocal, the defendant is "mentally competent[,]" and the request is made "'knowingly and intelligently,'" after the defendant is "'apprised of the dangers of self-representation.'" (People v. Miller (2007) 153 Cal.App.4th 1015, 1024 (Miller).) To be timely, "the request for self-representation at sentencing must be made within a reasonable time prior to commencement of the sentencing hearing." (Ibid.) When such a motion is not timely, self-representation is no longer a matter of right, but is subject to the to the trial court's discretion. (See People v. Valdez (2004) 32 Cal.4th 73, 103; People v. Mayfield (1997) 14 Cal.4th 668, 809, overruled on other grounds in People v. Scott, supra, 61 Cal.4th at p. 390, fn. 2.) In assessing an untimely motion, the court should consider the "quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (People v. Windham (1977) 19 Cal.3d 121, 128.)
C. Analysis
Defendant contends the court erred in denying his Faretta request because it was made before the sentencing hearing, he did not request a continuance of the hearing, and the court's conclusion the motion was made "to obstruct justice" was not supported by the record. He further argues the motion was timely; thus, its denial is reversible per se. Alternatively, he contends if the motion was untimely, the court abused its discretion in denying it. The People respond defendant made a last-minute Faretta motion at the sentencing hearing, which he had an opportunity to bring earlier. Accordingly, the court had discretion to deny the motion, and it acted within that discretion in concluding the motion "was aimed at unjustifiably delaying the sentencing and obstructing the orderly administration of justice." We agree with the People.
Here, defendant's motion was untimely; he moved to represent himself moments before the sentencing hearing was set to begin, despite having opportunities to raise his motion earlier. (See Doolin, supra, 45 Cal.4th at p. 454; Miller, supra, 153 Cal.App.4th at p. 1024.) Accordingly, the court had discretion to grant or deny the motion.
Defendant disagrees and relies upon Miller in arguing he had an absolute right to self-representation because he brought his Faretta motion before the sentencing hearing began; thus, his motion was timely. Miller does not assist defendant. In Miller, our court concluded the defendant's motion for self-representation made two months before the sentencing hearing was timely; thus, the defendant had an absolute right to self-representation during sentencing. (Miller, supra, 153 Cal.App.4th at p. 1024.) However, our court expressly held: "[m]uch as a request to represent oneself at trial must be made a reasonable time before trial commences, the request for self-representation at sentencing must be made within a reasonable time prior to commencement of the sentencing hearing." (Ibid., italics added.) And here, unlike in Miller, defendant did not make his motion for self-representation "within a reasonable time prior to commencement of the sentencing hearing[]"; he brought his Faretta motion moments before the sentencing hearing was set to begin. Thus, Miller is inapposite.
Additionally, as defendant acknowledges, in Doolin, the California Supreme Court held a request for self-representation made on the date of sentencing was "manifestly untimely." (Doolin, supra, 45 Cal.4th. at p. 454.) In so holding, the Doolin court noted the defendant "never requested self-representation during the guilt or penalty phase"; "[h]e appeared on the day set for sentencing and sought, not to act as his own counsel, but to replace his appointed lawyer with a new one and to secure a continuance[]"; and "[o]nly when this approach failed did [the] defendant seek self-representation, and only then with the appointment of an assistant to actually draft his moving papers." (Ibid.) Defendant argues Doolin is distinguishable because it is a capital case. We are not persuaded. The Doolin court did not limit the application of its analysis to the capital case context. Rather, its holding comports with the California Supreme Court's previous guidance that Faretta motions made at the commencement of trial are deemed untimely. (See People v. Windham, supra, 19 Cal.3d at pp. 127-128.)
Here, the court did not abuse its discretion in denying defendant's Faretta motion in light of the timing of the request, the stage of the proceedings, and its conclusion the motion was made to obstruct the orderly administration of justice. Defendant moved to discharge defense counsel multiple times during trial, including right before the commencement of the sentencing hearing and before he made his motion for self-representation. Each time, the court denied defendant's Marsden motion and concluded defense counsel was providing adequate representation. Indeed the court noted on the record that defense counsel was a "zealous advocate[]." Defendant then moved for self-representation moments before the sentencing hearing was set to begin. He could have raised this request at the originally scheduled sentencing hearing or in the weeks leading up to the final sentencing hearing; he failed to do so.
Defendant had different counsel during the preliminary hearing who was discharged and replaced by defense counsel based on a breakdown of the attorney-client relationship.
On this record, "[t]he court reasonably could conclude that [the] defendant was well represented by counsel, that he had some proclivity to vacillate with respect to representation by counsel, and that the granting of the motion would disrupt the orderly [administration of justice]." (People v. Jenkins (2000) 22 Cal.4th 900, 962.) And though defendant did not expressly request a continuance on the record, the court could have reasonably expected a continuance would be needed if the Faretta motion was granted. Irrespective, "[t]he circumstance that [the] defendant did not seek a continuance is not determinative." (Id. at p. 963 [trial court did not abuse its discretion denying Faretta motion made after start of trial even though the defendant did not seek a continuance]; see People v. Howze (2001) 85 Cal.App.4th 1380, 1397 [trial court had discretion to deny Faretta motion unaccompanied by a request to continue when made two days prior to trial date].) Accordingly, the court did not abuse its broad discretion in denying defendant's motion for self-representation.
We reject defendant's second contention.
III. Remand for Consideration of Senate Bill No. 1393
Senate Bill No. 1393, signed into law on September 30, 2018, amended sections 667 and 1385 to provide the trial court with discretion to dismiss, in furtherance of justice, five-year enhancements imposed pursuant to section 667, subdivision (a)(1). The new law took effect on January 1, 2019. The law is applicable to those parties, like defendant, whose appeals were not final on the law's effective date. (See In re Estrada (1965) 63 Cal.2d 740, 748.)
Defendant contends his case should be remanded to permit the court to exercise its newfound discretion and consider whether to strike the prior serious felony enhancement imposed pursuant to section 667, subdivision (a). The People agree the legislation is retroactive, but deny defendant is entitled to a remand. They contend the record clearly indicates the court would not have dismissed the prior serious felony enhancement even if it had discretion to do so because the court denied defendant's pre-sentence motion to strike his prior Three Strikes conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and it imposed the aggravated term on count 1. We conclude remand is warranted.
The California Supreme Court has held, when a court is unaware of the scope of its discretionary powers, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Here, as the parties note, defendant was sentenced in this case on March 8, 2018, before Senate Bill No. 1393 was passed and took effect. At sentencing, the court imposed the five-year section 667, subdivision (a), enhancement, noting it was "quite clear" it did not have discretion to strike it. The court concluded a prison sentence was justified because the victim suffered "repeated acts of violence" and defendant's "actions present a serious danger to the victim and community." The court acknowledged it had discretion to strike defendant's strike prior, but it denied defendant's Romero motion based upon defendant's "history of violent criminal acts and ongoing pattern of criminality." And, as the People note, the court imposed the aggravated term on count 1 without further comment.
Despite the court's conclusions a prison sentence was justified, defendant did not fall outside the scheme of the Three Strikes law, and its imposition of the aggravated term on count 1, it remains that at the time defendant was sentenced, the court lacked the discretion to strike or stay defendant's prior serious felony enhancement. And we cannot conclude the record before us clearly indicates the trial court would not have struck this enhancement if it had had discretion to do so. Accordingly, because defendant is entitled to be sentenced in the exercise of informed discretion, remand is appropriate so that the trial court may exercise its discretion in the first instance in light of the amendments to sections 667 and 1385. We express no opinion on how the trial court should exercise its discretion on remand.
DISPOSITION
We remand to the trial court for a new sentencing hearing to permit the trial court to exercise its discretion regarding to strike the prior serious felony enhancement in light of Senate Bill No. 1393. In all other respects, the judgment is affirmed.
MEEHAN, J. WE CONCUR: LEVY, Acting P.J. POOCHIGIAN, J.