People v. Hunter CA2/4

Opinion

Filed 8/20/26 P. v. Hunter CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B344348

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA057774) v.

DAMIAN JAMAL HUNTER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. Strassner, Judge. Affirmed as modified. Phillip A. Talbert, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION In 2025, the trial court recalled defendant Damian Jamal Hunter’s sentence pursuant to Penal Code section 1172.75,1 struck three one-year prior prison term enhancements (§ 667.5, sub. (b)) and a five-year serious felony enhancement (§ 667, subd. (a)) and resentenced him to 25 years to life. On appeal, defendant contends the trial court abused its discretion in denying his motion under section 1385, subdivision (a) and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to dismiss a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). Defendant also contends he is entitled to have his abstract of judgment modified to vacate the restitution fine pursuant to section 1465.9, subdivision (d). While we disagree with defendant’s alleged resentencing error, we agree with defendant’s contention that his restitution fine must be vacated. Therefore, we affirm the judgment as modified.

FACTUAL BACKGROUND2

On October 24, 2012, at approximately 8:00 p.m., a delivery driver for Rigatoni’s Pizza (the victim), made a delivery to an apartment complex. The items delivered were pizza, chicken wings, and two liters of coke. When he arrived, the victim saw a woman waiting for him outside and a man standing behind a truck in the driveway. The victim removed the food from his vehicle 1 All further statutory references are to the Penal Code, unless otherwise stated. 2 We draw these facts from defendant’s prior appeal. (People v. Hunter (May 24, 2016, B263599) [nonpub. opn.].)

2 and handed the receipt to the woman. As he waited for her to pay, the man walked up to him, placed what the victim thought was a gun to his stomach, pushed him against his delivery vehicle, and said, “[G]ive me all your money, mother fucker.” The victim gave the man all the money he had in his pockets. The man took the money and food and walked away. The victim returned to his vehicle and drove away. He found a sheriff's vehicle several blocks away, stopped, and reported the robbery. The deputy responded to the apartment complex. In an apartment rented by Robin Castro, the deputy found chicken wings on the table, pizza in a plastic bag in the oven, and a red hooded sweatshirt in a hall closet. Later that evening, another sheriff’s deputy brought the victim back to the apartment complex for a field line-up. The victim sat in the back of a sheriff’s vehicle while officers shined a spotlight on each of four individuals who were found in Castro’s apartment. Defendant was one of the four. The victim was unable to identify anyone in the lineup as the robber. Detective Donnel testified at trial that after the field line-up, the victim told him that defendant “appeared to be too tall because he believed the person that robbed him was about the same height as him or slightly shorter than him.” At trial, the victim described the robber as a Black man who wore a red zip-up hooded sweatshirt. The victim was shown an exhibit of the red hooded sweatshirt found in Castro’s apartment and identified it as the sweatshirt the robber was wearing. When asked by the prosecutor if anyone in the courtroom matched the description of the robber, the victim identified defendant, stating, “He looks like the guy. I mean, I can’t say for sure. It was over a year ago but it looks like him.” When asked how sure he was, the victim testified that he was approximately 80 percent sure. On cross- 3 examination, the victim acknowledged that it was fair to say his memory of events directly after the robbery was better than it was on the day of trial, which was 14 months later. The prosecution called Castro as a witness. The parties stipulated that the order called into Rigatoni’s Pizza was placed on Castro’s phone. She testified that she did not know defendant. The prosecution then introduced her prior testimony from the preliminary hearing. She identified defendant, testifying that he was at her apartment the night of the robbery and left her apartment around eight in the evening, wearing the red hooded sweatshirt that was later found in her closet. She also testified that defendant borrowed her phone before leaving the apartment and returned approximately 45 minutes later with the food order in a grocery bag. When he returned, he was no longer wearing the red hooded sweatshirt. The prosecution also called Danyelle Bates as a witness. Bates was convicted for her involvement in the robbery and at the time of trial was serving her sentence. In response to the prosecution’s question whether she recalled seeing defendant at Castro’s apartment the night of the robbery, she testified that she did not. The prosecution then introduced her prior statements made in an interview with Detective Donnel. During a recorded interview, she told the detective that she was with defendant at Castro’s apartment on the night of the robbery. She also said she was the one who called in the order and that she and defendant brought the food back to Castro’s apartment. After the recording of the interview was played for the jury, Bates testified she lied in her interview out of spite because the detective told her that defendant blamed her for the robbery. She then testified she committed the robbery by herself.

4 PROCEDURAL HISTORY

In 2015, a jury found defendant guilty of second-degree robbery (§ 211) but found not true a personal firearm use allegation (§ 12022.53). In a bifurcated proceeding, the trial court found true allegations that defendant had two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), two prior serious felony convictions (§ 667, subd. (a)) and three prior prison terms (§ 667.5, subd. (b)). The court denied defense counsel’s Romero motion, finding that defendant “falls squarely within the spirit of the Three Strikes law.” The court sentenced defendant to a total of 38 years to life in state prison, consisting of 25 years to life under the Three Strikes law, plus two five-year terms for the serious felony enhancements, and three one-year terms for the prior prison term enhancements. The court ordered defendant to pay, among other fines and fees, a $10,000 restitution fine pursuant to section 1202.4, subdivision (b). This court, comprised of a different panel, ordered one of the two five- year serious felony enhancements stricken but otherwise affirmed the judgment. On remand, the trial court struck one of the five-year serious felony enhancements, which reduced defendant’s sentence to 33 years to life in state prison. The California Department of Corrections and Rehabilitation subsequently identified defendant as an individual who might qualify for relief under section 1172.75. On January 25, 2024, the trial court verified defendant’s current judgment included prior prison term enhancements pursuant to section 667.5, subdivision (d), and recalled his sentence. Counsel was reappointed for defendant. Defendant filed a resentencing brief requesting that the court strike one prior strike conviction and the remaining 5 five-year serious felony enhancement. In addition, he requested the court dismiss the three one-year prior prison term enhancements. Defendant noted that his two prior strike convictions were for manslaughter and robbery, and both offenses were from the same incident in 1994 when defendant was 16 years old. He further noted that he was not the actual shooter in that incident. On February 25, 2025, the trial court held a resentencing hearing. At the outset, the court stated that it reviewed defendant’s resentencing brief and his prison “C file.” The court stated that defendant’s placement scores in prison have “fluctuated” since he was placed in custody in 2015. The court also stated defendant’s prison record included participation in a riot in 2017, willfully resisting a peace officer in 2018, and fighting with another inmate in 2023. However, the court noted that defendant’s rules violations were minor and that was mitigating. The court commended defendant on his personal growth programming, which included obtaining his GED while incarcerated. The court then stated defendant had been convicted of robbery with a gun in 2015 and had two prior strikes consisting of manslaughter and robbery from an incident in 1994 when he was only 16 years old. The court highlighted defendant’s sophistication in the 1994 case, which was a robbery of a jewelry store. The court explained defendant attempted to create a homemade silencer for the firearm using a potato and duct tape. The court also stated that defendant’s subsequent record included gun possession in 2003 and receiving stolen property in 2010, in addition to the crime in the instant case. The court noted that it considered the nature and circumstances of defendant’s current crime, his prior convictions and record, and the particulars of his background, character, and prospects, as well as danger to public safety.

6 Defense counsel interjected that the court mentioned “several times” that the current offense was a robbery with a gun, but the jury found the firearm allegation not true. The court acknowledged its mistake and stated that “while that is mitigation,” defendant’s behavior in the 1994 robbery involving a gun was concerning because, even if he was a minor, he was talking about building a silencer for the firearm that was ultimately used by the shooter. Furthermore, after serving time for those crimes, defendant was later convicted of gun possession, another theft-related offense, and then committed the instant robbery. The court described the robbery as a “crime of opportunity” and stated that defendant “certainly didn’t learn from whatever took place from 1994 to 2015.” The court clarified that the lack of a true finding on the firearm allegation “doesn’t change my position under a [section] 1385 analysis in balancing mitigation and aggravation.” The court ultimately found sufficient mitigation to dismiss the five-year serious felony enhancement in addition to dismissing the three one-year prior prison term enhancements. However, the court declined to dismiss a prior strike conviction. The court resentenced defendant to 25 years to life under the Three Strikes law. Defendant timely appealed.

DISCUSSION

I. The Romero Motion Defendant argues that the trial court abused its discretion in denying his motion to dismiss his strike conviction under section 1385, subdivision (a), and Romero. We conclude the record does not support this contention.

7 Section 1385, subdivision (a), gives a trial court the discretion to dismiss an “action” in the furtherance of justice. Under that section, a court may grant a defendant’s motion to strike prior felony conviction allegations brought under the “Three Strikes” law. (Romero, supra, 13 Cal.4th at pp. 529–530.) In assessing a Romero motion, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the denial of a Romero motion for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) “Abuse of discretion in failing to strike a prior conviction occurs in limited circumstances: where the trial court is not aware of its discretion; where the trial court considers impermissible factors; or where applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd result under the specific facts of a particular case.” (People v. Dryden (2021) 60 Cal.App.5th 1007, 1029.) Only in “extraordinary” cases does the trial court’s failure to strike a prior conviction constitute an abuse of discretion. (Carmony, supra, at p. 378.) Here, the trial court had before it ample evidence that defendant was precisely the type of criminal for whom the Three Strikes law was enacted. (See People v. Gaston (1999) 74 Cal.App.4th 310, 320, disapproved on another ground in People v. Dain (2025) 18 Cal.App.5th 246, 252.) Defendant committed his two prior strike convictions (robbery and manslaughter) at age 16 and then committed the current offense in this case at age 35. When 8 defendant was not incarcerated, he committed additional crimes. He was convicted of possession of a firearm by a felon in 2003 and then convicted of receiving stolen property in 2010. Moreover, his first offense and the most current one both involved robbery. As aptly noted by the trial court, defendant “certainly didn’t learn from whatever took place from 1994 to 2015.” Given his record, defendant has not demonstrated an abuse of discretion. Defendant cites People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff) to support his contention that the court abused its discretion in denying the Romero motion. There, the defendant was required to register as a sex offender after his convictions on nine counts of lewd and lascivious conduct with a child under the age of 14. (Id. at p. 994.) He served his sentence for those offenses and, upon release, diligently registered as a sex offender. However, a separate requirement that offenders annually “update” their registration within five days of their birthday was added by the Legislature five years after the defendant was released from prison. The defendant was subsequently convicted of failing to comply with this registration requirement. At sentencing, the trial court in Cluff denied the defendant’s Romero motion, finding he intentionally failed to update his registration in order to “obfuscate” his true residence. (Id. at pp. 1002-1003.) In reversing and remanding the case for a new Romero hearing, the Court of Appeal concluded that “none of the facts . . .support the inference that [the defendant] failed to update his registration in order to obfuscate his residence or escape the reach of law enforcement.” (Cluff, supra, 87 Cal.App.4th at p. 1003.) The court went so far as to say that “the trial court’s analysis became disconnected from 9 the evidence and entered the realm of imagination, speculation, supposition, and guesswork.” (Id. at p. 1002.) Cluff is inapplicable to the case at hand. We find no disconnect between the evidence and the court’s justification for denying the Romero motion. It is undisputed that the court initially had a mistaken belief that the jury found true personal use of a firearm by defendant. However, defense counsel promptly informed the trial court of its error, which the court then acknowledged and corrected. The court then stated that a not true firearm allegation in the current case was “mitigating,” but it ultimately did not change the result of its section 1385 analysis on whether to dismiss the prior strike conviction. Therefore, contrary to defendant’s contention, the trial court did not consider an impermissible factor in denying his Romero motion. (See e.g., Cluff, supra, 87 Cal.App.4th at p. 1002.)

II. Restitution Fine Defendant contends that the $10,000 restitution fine imposed at his original sentencing hearing and currently reflected in the abstract of judgment must be vacated pursuant to the recent amendment to section 1465.9. We agree. Effective January 1, 2025, Assembly Bill No. 1186 (Stats. 2024, ch. 805, § 1) amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 not paid within 10 years must be vacated. (§ 1465.9, subd. (d) [“Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to [s]ection 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.”]; In re Mattison (2025) 115 Cal.App.5th 1062, 1066.) The 10 restitution fine was originally imposed in 2015, and defendant was resentenced 10 years later. We therefore vacate the fine. DISPOSITION We direct the clerk of the superior court to prepare and forward to the California Department of Corrections and Rehabilitation an amended abstract of judgment vacating the restitution fine under section 1465.9, subdivision (d). The judgment is affirmed as modified. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ZUKIN, P. J.

We concur:

MORI, J.

TAMZARIAN, J.