Filed 3/20/23 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078556
v. (Super.Ct.No. FSB19001842)
SAMANTHA LYNETTE HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,
Jr., Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Laura
Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Samantha Lynette Hernandez entered a mobile home in
San Bernardino that belonged to Herman Medina and his wife. While defendant was
inside the mobile home, Medina arrived and noticed that a window had been pried open
and one of the doors was ajar. He entered the mobile home and found defendant in a
bedroom, holding a pipe. She warned him that something was in the mobile home. She
left carrying a bag that belonged to Medina’s wife and contained items she took from the
mobile home. Defendant was apprehended down the street by police and was still in
possession of the bag. Defendant was also carrying a backpack, which contained a
magazine loaded with rounds of nine-millimeter ammunition. Defendant was convicted
of first degree burglary and unlawful possession of ammunition along with having
suffered a prior serious and violent felony conviction.
Defendant claims on appeal that (1) insufficient evidence was presented to support
her conviction of first degree burglary as the People failed to prove that the residence was
inhabited at the time of the burglary; (2) if this court reduces her conviction to second
degree burglary, the five-year term imposed on the prior serious felony conviction found
true under Penal Code section 667, subdivision (a),1 must be stricken and, in the
alternative, if his court upholds her conviction of first degree burglary, the trial court
abused its discretion by refusing to strike the section 667, subdivision (a), prior and it
should be dismissed on appeal; her conduct credits should be recalculated if this court
reduces her conviction to second degree burglary; and (4); remand for resentencing is
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 required in order for the trial court to consider the sentencing objectives of Senate Bill
No. 567.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was convicted of first degree burglary (§ 459; count 1) along with the
special allegation that it was a serious and violent felony conviction because the
residence was occupied (§§ 1192.7, subd. (c); 462, subd. (a); 667.5, subd. (c).) She was
also found guilty of unlawful possession of ammunition (§ 30305, subd. (a)(1); count 2.)
In a bifurcated proceeding, after defendant waived her right to a jury trial, the trial court
found the special allegation true for count 1 that she had suffered a prior serious felony
conviction (§§ 667, subd. (a).) In addition, the trial court found true that defendant had
suffered a serious or violent felony conviction on counts 1 and 2 pursuant to sections 667,
subdivisions (b) through (i), and 1170.12, subdivision (a), and had served a prior prison
term within the meaning of section 667.5, subdivision (b).
Defendant was sentenced on February 4, 2022, to the middle term of four years on
count 1 plus a consecutive eight-month term on count 2. Defendant was additionally
sentenced to five years for the section 667, subdivision (a)(1), prior serious felony
conviction.2 She received a total sentence of nine years eight months to be served in state
2 The trial court struck the prior serious and/or violent felony conviction for purposes of imposing count 1 and not doubling the sentence.
3 prison.3 She was granted 1,139 total credits pursuant to section 2933.1, consisting of 990
actual days and 149 conduct credits.
B. FACTUAL HISTORY
1. PEOPLE’S CASE-IN-CHIEF
On May 22, 2019, Herman Medina and his wife, Collette Moore, owned a mobile
home located at 2686 West Mill Street Space 138 in San Bernardino (mobile home). The
mobile home had three bedrooms and two bathrooms. It was furnished and all of the
utilities, including electricity and gas, were turned on. Medina maintained regular trash
service. On May 22, 2019, Medina stated that he and his wife were primarily storing
their items in the house because the floors had been damaged. He stated that they were
gradually moving things from the mobile home to their house in Rialto. His son lived in
the mobile home until November 2018 when the floors were damaged by a pipe that
burst. Medina’s son planned to move into the mobile home once the floors were fixed.
On May 22, Medina went to the mobile home. He had been to the mobile home
just a few days prior to that day. He had locked all of the doors when he left. During this
time in 2019, he would go to the mobile home about three times each week. He would
check on the mobile home and take the garbage out.
He arrived at the mobile home between 1:00 and 2:00 p.m. He was just going to
pick up the mail when he observed that the side door to the mobile home was ajar. He
went inside and heard a noise coming from one of the bedrooms. When he entered one of
3 The trial court struck the section 667.5, subdivision (b), prior.
4 the bedrooms, he saw defendant holding a 15-inch pipe that he recognized had been in
the house. He said, “Who the ‘F’ are you?” Defendant responded, “There is someone in
here. There’s someone in here.” Medina told her, “Yeah, you.” Defendant told Medina
that someone had invited her to stay in the mobile home.
Defendant stated that there was “something” in the mobile home. Defendant had a
bag under her arm. The bag had the words Arrowhead Medical Center (AMC) printed on
it. Moore had worked at AMC as a nurse and the bag belonged to her. Defendant walked
past him out of the bedroom. He did not stop her because he was afraid of her strange
behavior. She exited the mobile home by the side door. Medina followed her. He yelled
at her to give back his items or he was going to call the police. Defendant responded that
the items belonged to her.
Medina followed her down the street. Defendant flagged down a man on a
bicycle. She got on the handlebars and left with him. Police officer Dimola responded to
a 911 call from Medina at around 1:40 p.m. on May 22, 2019. Medina pointed to the
direction that defendant had left on the bicycle. Officer Dimola observed a male
Hispanic riding a bicycle with a female, identified as defendant, on the handlebars.
Officer Dimola followed them. Once defendant got off the bicycle, Officer Dimola
approached defendant. She was wearing black clothing and had both a black backpack
and the AMC bag. Officer Dimola detained defendant. The male with defendant ran off.
Medina identified defendant as the female who had been in his house.
Officer Prinz was called to Medina’s mobile home at approximately 1:55 p.m. on
May 22, 2019. Officer Prinz observed the window that had been damaged. A person
5 could fit through the window. Officer Dimola brought defendant’s backpack and the
AMC bag back to the house. Inside the backpack was a magazine for a Ruger
semiautomatic firearm that was loaded with 13 rounds of nine-millimeter ammunition.
Inside the AMC bag was some of Moore’s makeup. In addition, keys to a vintage
motorcycle that had been in one of the kitchen drawers was in the bag. Also in the bag
was a knife shaped like a gun that Moore had given Medina. It had been stored in a
kitchen drawer. Moore had not put these items in the AMC bag.
Medina also found his wife’s purse, which contained her jewelry, in a recycle bin
outside the home. The holder for the knife found in the AMC bag was inside one of the
purses. In addition, Medina’s wife’s checkbook was in the purse. Moore kept the purses
in her bedroom. Medina did not own any guns or ammunition.
Medina looked around the mobile home after the police left. It appeared that
someone had used both of the toilets but had not flushed them. He found a bag of female
clothes in the laundry room that did not belong to him or Moore. There were dirty dishes
in the kitchen, which had been left by Medina’s son from November 2018. Medina had
left them in the sink advising his son that he had to clean them.
Moore had never met defendant and did not give her permission to take any of
Moore’s items. Medina had not given anyone permission to enter his house. He did not
give defendant permission to enter the house or take Moore’s bag. The parties stipulated
that defendant had suffered a prior conviction, which prohibited her from possessing
ammunition.
Defendant presented no evidence on her behalf.
6 DISCUSSION
A. INSUFFICIENT EVIDENCE OF FIRST DEGREE BURGLARY
Defendant contends the evidence was insufficient to support her conviction of first
degree burglary as it was not proven that the house was inhabited.
“ ‘A substantial evidence inquiry examines the record in the light most favorable
to the judgment and upholds it if the record contains reasonable, credible evidence of
solid value upon which a reasonable trier of fact could have relied in reaching the
conclusion in question. Once such evidence is found, the substantial evidence test is
satisfied. [Citation.] Even when there is a significant amount of countervailing evidence,
the testimony of a single witness that satisfies the standard is sufficient to uphold the
finding.’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 711.)
Burglary involves the act of unlawful entry accompanied by the specific “intent to
commit grand or petit larceny or any felony.” (§ 459.) First degree burglary requires
entry into an “inhabited” dwelling house. (§ 460, subd (a).)
Here, the jury was instructed on burglary that it had to find (1) defendant entered a
building/room within a building/structure; and, (2) when she entered a building/room
within the building/structure, she intended to commit theft. They were further instructed,
“Burglary is divided into two degrees. If you conclude that the defendant committed a
burglary, you must then decide the degree. [¶] First degree burglary is burglary of an
inhabited house [or a room within an inhabited house].” [¶] “A house is inhabited if
someone uses it as a dwelling, whether or not someone is inside at the time of the alleged
entry. [¶] A house is inhabited if someone used it as a dwelling and left only because a
7 natural or other disaster caused him or her to leave. [¶] A house is not inhabited if the
former residents have moved out and do not intend to return, even if some personal
property remains inside. [¶] All other burglaries are second degree. [¶] The People
have the burden of proving beyond a reasonable doubt that the burglary was first degree
burglary. If the People have not met this burden, you must find the defendant not guilty
of first degree burglary.”
Defendant disputes that there was sufficient evidence presented that the mobile
home was inhabited. “ ‘[I]nhabited’ for purposes of section 460 ‘means currently being
used for dwelling purposes, whether occupied or not.’ [Citation.] . . . ‘It has never been
held that a person loses his residence by reason of a brief absence from the house where
he lives, and without evidence of an intention to depart therefrom and go to live in some
other place.’ [Citation.] ‘Numerous cases . . . have held that a residence is still
“inhabited” for purposes of [section] 460 even though the residents of the house are
temporarily away from the premises, where they have indicated no intention to stop
living there.’ [Citation.] . . . [A] house ‘is “inhabited” if it is currently being used for
residential purposes, even if it is temporarily unoccupied, i.e., no person is currently
present. A formerly inhabited dwelling becomes uninhabited only when its occupants
have moved out permanently and do not intend to return to continue or to resume using
the structure as a dwelling.’ ” (People v. Tessman (2014) 223 Cal.App.4th 1293, 1299-
1300.) Whether a dwelling is inhabited is a question of fact. (People v. Burkett (2013)
220 Cal.App.4th 572, 582.)
8 In People v. Marquez (1983) 143 Cal.App.3d 797, 801-802, the defendant entered
the home of the victim through a window and took the victim’s television and stereo. At
the time of the burglary, the owner of the home had been moved into a boarding home
and it was uncertain when she could return to her home. The home was maintained by a
friend. The appellate court upheld the trial court’s finding that the house was inhabited
because the owner intended to return and there was no evidence that she vacated or
abandoned the property. (Id. at pp. 799-802.)
In People v. DeRouen (1995) 38 Cal.App.4th 86, the defendant entered several
vacation homes stealing various items from the homes. He was convicted of several
counts of first degree burglary. (Id. at pp. 89-91.) On appeal, the defendant argued that
the vacation homes were not inhabited because they were not the victims’ primary living
quarters. (Id. at pp. 90-91.) The appellate court noted that burglary laws are “ ‘based
primarily upon a recognition of the dangers to personal safety created by the usual
burglary situation—the danger that the intruder will harm the occupants in attempting to
perpetrate the intended crime or to escape and the danger that the occupants will in anger
or panic react violently to the invasion, thereby inviting more violence.’ ” (Id. at p. 91.)
It found that, “the societal interests present in one’s second or vacation home are equally
as important as those present in one’s primary residence. Each of the victims testified
they resided in their [vacation] residences sporadically. The potential danger of an
unexpected intruder into these dwellings, surprising the occupants and inciting violence is
the same potential danger a burglar poses to occupants of their primary residence.” (Id.
at p. 92.)
9 Here, substantial evidence supported the jury’s finding that the mobile home was
inhabited. Medina stated that at the time they were storing their items in the house and
were moving items to their other home in Rialto. They had not moved all of their
belongings. Medina went to the mobile home three days each week to check on it and get
the mail. Their belongings—including beds and dishes—were still in the home. The
electricity and gas were still turned on. Medina stated that the floors had been damaged
and needed to be fixed. Once they were fixed, his son would move back into the house.
Medina and Moore were still inhabiting the house as they were gradually moving to
Rialto. There was no evidence that they had abandoned or vacated the mobile home.
(People v. Marquez, supra, 143 Cal.App.3d at pp. 801-802.) Further, their son was
moving back into the house as soon as the floors were fixed. Substantial evidence
supports the jury’s finding of habitation.
Defendant contends that Medina was only using the house for storage. However,
Medina still went to the location three times each week. Further, Medina testified they
were gradually moving to Rialto and that they were waiting to repair the floors, which
had been damaged by a pipe that burst, so Medina’s son could move in. Medina insisted
that his son was planning to occupy the mobile home. The evidence supported that
Medina and Moore were still inhabiting the house and that once the floor was repaired,
Medina’s son would move back in.
Defendant also argues that the mobile home was not inhabited because she
speculates there was no running water. She claims this is evidenced by the dishes still
being in the sink and the toilets not being flushed. However, there was no testimony that
10 the water had been shut off. In fact, Medina testified that he had kept the utilities on,
including electricity and trash service. Medina indicated the sink was full of dishes
because his son had left the dishes and he refused to clean them for his son, not because
the water had been turned off.
Finally, defendant contends the fact that the floors had not been fixed at the time
of her entry was evidence that Medina viewed the house merely as a place to store his
belongings and had no intention to return to inhabit the house. However, Medina
testified that he planned to fix the floors so his son could move back in. Further, the
utilities were kept on at the house. If Medina viewed the house only as a storage facility,
there would have been no reason to keep electricity or trash service.
The evidence supports that Medina and his family only vacated the premises
because the floors needed to be repaired. Medina was gradually moving items to their
new home in Rialto and had not abandoned the mobile home. They had every intention
of returning to inhabit the premises once the floors were fixed. Substantial evidence
supports defendant’s conviction of first degree burglary. 4
B. SECTION 667, SUBDIVISION (A) PRIOR CONVICTION
Defendant makes two alternative arguments regarding the section 667, subdivision
(a)(1), serious prior conviction. First, defendant argues that if this court reduces her
conviction in count 1 to second degree burglary, the section 667, subdivision (a)(1), prior
4 Defendant has contended that if this court reduces her conviction in count 1 to second degree burglary, her conduct credits should be recalculated pursuant to section 4019 rather than under section 2933.1. Since we have upheld her first degree burglary conviction, we need not address this claim.
11 no longer applies. As stated ante, the first degree burglary conviction was supported by
substantial evidence. As such, we need not strike the sentence imposed on the section
667, subdivision (a)(1), conviction on this ground. Defendant argues in the alternative
that if this Court upholds her first degree burglary conviction in count 1, then the trial
court abused its discretion by refusing to exercise its discretion to strike the prior
conviction.
1. ADDITIONAL FACTUAL HISTORY
According to the probation report, defendant was 25 years old. On January 30,
2014, she was convicted of assault with a deadly weapon and was sentenced to 24 months
in prison. At the same time she was convicted of receiving a stolen vehicle and was
sentenced to 32 months in county jail. She violated her parole for this charge four
separate times, including when she committed the instant offense. On November 29,
2018, she was convicted of grand theft, a misdemeanor, and was placed on probation.
The aggravating factors included for the current crime were that it involved a threat of
bodily harm, the manner in which the crime was committed was carried out with
planning and sophistication, and it involved the taking of property of great monetary
value. As for the aggravating factors for defendant, she was engaged in violent conduct
that was a serious danger to society, the prior convictions were numerous and increasing
in seriousness, she had served prior prison terms, she was on parole at the time of the
offense and her prior performance on parole was unsatisfactory. There were no
mitigating factors found by the probation department. It was recommended that she
receive a sentence of 14 years four months.
12 Defendant filed a People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero) motion to strike her prior conviction. She argued that her prior conviction was
suffered just prior to her 18th birthday. Defendant also submitted a biopsychosocial
report to be considered with the Romero motion. Defendant argued the trial court should
consider her unstable childhood in ruling on the Romero motion. Defendant reported that
her parents fought when she was young and that her father would whip her with a belt.
Her parents divorced and she stayed with her mother until she was 12 years old. Her
mother had mental health and substance abuse issues and could not care for her. She
moved in with her father who physically abused her. She was placed in foster care at the
age of 13. She claimed to have been sexually assaulted when she was 14 years old. She
suffered from substance abuse, anxiety, depression, and paranoia. Defense counsel
withdrew the Romero motion after meeting with the prosecutor and the trial court, and
being advised as to the sentence that the trial court intended to impose.
At the sentencing hearing conducted on February 4, 2022, the trial court noted that
Medina and Moore had indicated they wanted defendant to be punished but not “to the
fullest extent of the law.” The trial court stated on the record the aggravating factors
included that defendant had a prior record, which indicated a pattern of regular and
increasingly serious criminal conduct. She was on parole at the time she committed the
instant offense and her prior performance on parole was unsatisfactory.
The trial court stated it had considered these factors when deciding whether to
impose or strike the section 667, subdivision (a), prior conviction. The trial court stated it
understood it had discretion to strike the prior but chose not to strike the prior conviction.
13 The trial court noted, “So the record is clear, the Court has read and considered the
sentencing report. After a discussion with both parties, the Court agrees that nine years,
eight months is an appropriate sentence in this case. [¶] The Court did exercise its
discretion pursuant to 1385 with respect to the strike allegation in order to accomplish
that nine years, eight months. [¶] The Court did not exercise, although the Court
understands the Court has discretion under 1385, with respect to 667 (a)(1), a five-year
enhancement.”
2. ANALYSIS
“[S]ection 667, subdivision (a) requires a trial court to impose a five-year
enhancement for each prior serious felony conviction.” (People v. Shaw (2020) 56
Cal.App.5th 582, 585.) On September 30, 2018, the Governor signed Senate Bill No.
1393 which amended sections 667, subdivision (a), and 1385, subdivision (b) to allow a
court to exercise its discretion to strike or dismiss a prior serious felony conviction for
sentencing purposes. It was effective January 1, 2019. (Stats. 2018, ch. 1013, §§ 1-2.)
The sentencing in this case was conducted in 2022, and the trial court stated that it
understood it had the discretion to strike the serious prior felony conviction.
As noted in People v. Shaw, supra, 56 Cal.App.5th 582, there are “few published
opinions following the enactment of Senate Bill 1393 that define the scope of a trial
court’s authority to strike a prior serious felony enhancement ‘in the furtherance of
justice’ [citation], or discuss in any detail the standard of appellate review.” (Id. at p.
585.) The court in Shaw first determined that a trial court, in determining whether to
strike a prior serious felony conviction should look to the nature of the offense and the
14 background of the offender as it does in choosing whether to impose or strike other types
of enhancements. (Id. at p. 587.) “No error occurs if the trial court evaluates all relevant
circumstances to ensure that the punishment fits the offense and the offender.” (Ibid.)
Review of “a trial court’s decision not to strike a prior serious felony enhancement [is
under the] abuse of discretion [standard].” (Id. at p. 585.)
Here, the trial court considered striking the section 667, subdivision (a),
enhancement despite defendant withdrawing her Romero motion. The trial court
reviewed all of the aggravating and mitigating factors. It found that defendant had a prior
record and had a pattern of increasingly serious felony convictions. Further, defendant
had been on parole at the time that she committed the instant offense. The trial court also
noted that defendant’s prior performance on parole had been unsatisfactory. There were
no mitigating factors. The trial court noted that it was aware it had the discretion to strike
the prior serious felony conviction and that it had looked to all of the aggravating factors
in determining whether to strike the prior conviction. The trial court did not abuse its
discretion, after considering all of the relevant circumstances in deciding not to strike the
section 667, subdivision (a), prior conviction.
C. SENATE BILL NO. 567
Defendant contends that Senate Bill No. 567’s (Stats. 2021, ch. 731, §§ 1.3, 4,
5.15)(SB 567) amendment to section 1170, subdivision (b), requires remand for
resentencing in order for the trial court to reconsider his sentence under the new law. The
People contend defendant forfeited his claim by failing to object to the imposition of the
middle term at sentencing. We agree that defendant has forfeited her claim.
15 SB 567 amended section 1170, effective January 1, 2022, which was one month
prior to defendant’s sentencing. It provided several changes to the imposition of upper,
middle and lower-term sentences. Section 1170, subdivision (b)(1) provides “When a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the court shall, in its sound discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2).” Subdivision (b)(2)
provides, “The court may impose a sentence exceeding the middle term only when there
are circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true beyond a reasonable
doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).)
Further, Section 1170, subdivision (b)(6) provides in pertinent part:
“Notwithstanding paragraph (1), and unless the court finds that the aggravating
circumstances outweigh the mitigating circumstances that imposition of the lower term
would be contrary to the interests of justice, the court shall order imposition of the lower
term if any of the following was a contributing factor in the commission of the offense:
[¶] (A) The person has experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual violence. [¶] (B) The
person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at
the time of the commission of the offense.” Section 1016.7, subdivision (b) provides that
“A ‘youth’ for purposes of this section includes any person under 26 years of age on the
date the offense was committed.”
16 The ameliorative changes to section 1170 were in effect at the time of defendant’s
sentencing. Defense counsel and the prosecutor apparently spoke with the trial court
about the appropriate sentence in chambers but the trial court did not place the discussion
on the record. Defendant withdrew her Romero motion based on the indicated sentence
discussed in chambers. Defendant was aware that the trial court intended to impose the
middle term on count 1 but did not object on the record or ask the trial court to consider
her age and childhood as a mitigating factor in imposing the middle term.
Defendant’s failure to raise the applicability of SB 567 after the effective date of
the amendment to section 1170 has forfeited the argument on appeal. (People v. Scott
(1994) 9 Cal.4th 331, 351; People v. Flowers (2022) 81 Cal.App.5th 680, 683-684,
review granted Oct. 12, 2022, S276237; but see People v. Panozo (2021) 59 Cal.App.5th
825, 840 [found no forfeiture in a case involving section 1170.91, which provides that the
court shall consider any trauma suffered by the defendant as a member of the United
States military as a factor in mitigation when imposing a sentence].)
Further, based on the silent record in this case, we must presume the trial court
was aware of the change in the law and properly applied it to defendant’s sentence. “[A]
trial court is presumed to have been aware of and followed the applicable law.” (People
v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) “These general rules concerning the
presumption of regularity of judicial exercises of discretion apply to sentencing issues.”
(People v. Mosley (1997) 53 Cal.App.4th 489, 497, 499 [presumed on a silent record that
the trial court was aware of its discretion to strike a prior conviction when sentencing
occurred 53 days after the issuance of the Romero opinion].) We must presume the trial
17 court was aware of its discretion under section 1170, as amended, in imposing the middle
term.
Even if defendant has not forfeited her claim, and we presume that the trial court
was unaware of its discretion under revised section 1170, remand is unnecessary as the
trial court would not have exercised its discretion to impose the low term. (People v.
Salazar (2022) 80 Cal.App.5th 453, 463 [“ ‘[T]he 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.” ’ ”
citing to People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see also People v. Barber
(2020) 55 Cal.App.5th 787, 814 [“When a court is unaware of its discretion, the remedy
is to remand for resentencing unless the record clearly indicates that the trial court would
have reached the same conclusion if it had been aware of its discretion”].)
The trial court was well aware of defendant’s childhood and age based on
defendant’s Romero motion to strike the prior serious felony conviction. Defendant
chose to withdraw the Romero motion based on the sentence indicated by the trial court.
All parties appeared to be satisfied that the sentence imposed was fair and just. There is
nothing to support the trial court would have imposed the low term in this case based on
defendant’s childhood and age as it had already stated that the appropriate sentence in the
case was nine years and eight months. The record clearly indicates that the trial court
would conclude that imposing the lower term was contrary to the interests of justice.
(§1170, subd. (b)(6).) “Remand for resentencing would be an idle act.” (People v.
Salazar, supra, 80 Cal.App.5th at p. 464, fn. omitted.)
18 DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
McKINSTER J.