People v. Williams CA1/1

Opinion

Filed 9/16/26 P. v. Williams CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A174476 v. EMMETT WILLIAMS, (Mendocino County Super. Ct. No. 24CR05522) Defendant and Appellant.

After defendant Emmett Williams pled no contest to possession of a firearm by a felon (Pen. Code,1 § 29800, subd. (a)(1)), the trial court denied his Romero2 motion to strike his prior strike conviction and sentenced him to 32 months in prison. Williams appeals from the court’s denial of his Romero motion. He argues the court prejudicially abused its discretion by relying on facts underlying counts which had been dismissed without a Harvey3 waiver, and by ignoring relevant factors and relying on personal experience as a former gang prosecutor to conclude he remained gang affiliated. We affirm.

1 Undesignated statutory references are to the Penal Code.

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

3 People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

1 I. BACKGROUND In September 2024, Williams was charged with possession of a firearm by a felon (§ 29800, subd. (a)(1); count one), carrying an unregistered, loaded firearm in public (§ 25850, subds. (a), (c)(6); count two), assault with a deadly weapon (§ 245, subd. (a)(1); count three), and disturbing the peace (§ 415, subd. (1); count four). The complaint also alleged a prior strike (§§ 667, 1170.12) for a 2018 conviction of threatening to commit a crime with intent to terrorize (§ 422). A. Underlying Offenses Because Williams entered a plea, we take the facts of the alleged offenses from the initial and supplemental probation reports and police reports. While Williams pled no contest only to count one, we summarize the circumstances surrounding all four counts because they are relevant to the issues raised on appeal. 1. Counts One, Two, and Four In September 2024, Williams and another man entered a market in Fort Bragg. They aggressively asked the 17-year-old market employee “ ‘Are you a Buster?’ ” and “ ‘Do you bang?’ ” He replied, “ ‘I just work here,’ ” and, feeling scared, went to the back of the store and told his sister and their boss that there were two guys “ ‘that are getting ready to jump me.’ ” The boss sold alcohol to the two men before they left. The sister called the police and reported that she knew the two men to be gang members. Security video footage showed that after they left the market, Williams and the man got into a white Toyota and left. Approximately 90 minutes later, a police officer located the Toyota and conducted a traffic stop. The vehicle contained four known members of the Sureño gang, so the officer ordered them to raise their hands. Initially, only 2 the driver complied. The officer opened the rear passenger door and repeated the command. Two other passengers complied but Williams remained with his hands in his lap until repeatedly ordered to show them. Williams complied and kept his hands on the back of the front seat. After the officer stated that he could be arrested, Williams perked up. As the officer moved around the vehicle to Williams’s door, Williams removed his hands from the seat and began grabbing at his clothing, quickly pulling up his shirt and reaching his left hand between his legs. When the officers ordered him to keep his hands visible and not reach into his jacket, Williams raised his hands then, despite repeated commands, brought his hands down, opened his jacket and reached inside. The officers grabbed one arm, pinned his other hand, and pulled Williams from the vehicle. Williams attempted to free his arm when the officer tried to handcuff him. After Williams was secured in the police vehicle, the police searched the rear passenger area and located a fanny pack inside a shopping bag, which had a loaded handgun. Williams later admitted the gun was his. When questioned by the police about the incident at the market, Williams apologized, stating he felt bad and that “ ‘[k]ids don’t deserve that.’ ” When asked why he did not get out of the gang life, Williams explained that he could not leave. He took ownership of his actions at the market, stating “ ‘I should have never talked to somebody who was not part of that life. ’ ” 2. Count Three In March 2024, a juvenile was playing outside when three male juveniles approached him. One of them, wearing a blue flannel, brandished a gun. Scared, the juvenile ran into his friend’s house. The probation report indicates that the friend’s father later identified the three suspects, including Williams, stating that Williams brandished the gun. The police report, 3 however, states that the juvenile told police he believed the suspects were White males between ages 14 and 18, one of whom he recognized from high school. Williams, who is Black and was 24 years old at the time, denied involvement. The probation report states that the father confirmed Williams as the suspect, and a subsequent photo lineup led to Williams’s identification. The police report, though, explains that the friend’s father had a hard time deciding between two of the photos. B. Romero Motion and Sentencing Proceedings In January 2025, Williams entered an open plea of no contest to count one—possession of a firearm by a felon—and admitted the prior strike conviction. On the People’s motion, the court dismissed the three remaining counts. Williams filed a Romero motion to strike his 2018 prior strike conviction, which the People opposed. According to the initial probation report, filed in April 2025, Williams relayed that he was part of an organized street gang called Crazy Vatos Controlan (CVC), affiliated with the Sureño gang. He had been a member of CVC for six to seven years and had two gang-related tattoos. He told probation he was no longer affiliated with CVC but the police report had noted that Williams stated he was unable to leave the gang life. His house had been shot at multiple times and he relayed it could have been gang- related, but he was unsure. Williams’s 2018 prior strike conviction was a felony violation of section 422, where he approached a 16-year-old who was wearing a red hat. A group of Sureños pinned the juvenile up against a fence and Williams forcefully grabbed the hat from his head. Williams was granted probation, which he violated multiple times, including for having gang indicia.

4 In his interview with probation, Williams explained his recollection of the present incident was limited because he was heavily intoxicated. He took responsibility for possessing the gun, explaining he carried it for protection against individuals who might be affiliated with a gang or were out to get him. He acknowledged he could have harmed someone and expressed sadness because his actions distressed his family. He asserted he had severed ties with CVC, stating he disposed of gang-related clothing and planned to cover or remove his gang-related tattoos. He also claimed he no longer consumed alcohol or marijuana. But he admitted to drinking alcohol three days before the interview and smoking marijuana the day before. Since January 2025, he had attended Alcoholics Anonymous (AA) meetings four times per week. Williams began drinking alcohol and smoking marijuana when he was 15 years old. His alcohol consumption depended on his finances. Williams was in a relationship with his girlfriend since he was 17 years old and has four children. The probation report noted Williams has been known to law enforcement to be an active Sureño gang participant since approximately 2014. Probation asserted that while Williams was fairly young and was previously provided with an opportunity to rehabilitate, he continued to endanger and target minors and pose a significant risk to the community. He claimed he no longer associated with CVC but thought people could be after him, demonstrating his deep-rooted gang affiliation, which presented an ongoing threat to public safety. His disregard for the safety of minors, coupled with his willingness to instill fear in those unaffiliated with gang life, highlighted the danger he poses. His admission that he carries a gun due to fear for his life proves he is entrenched in the violent conflicts that come with gang involvement. The probation department recommended Williams be 5 sentenced to four years in prison—the two-year midterm doubled for the prior strike. Williams wrote letters taking responsibility for his actions. He explained that in the year before the current offense, his house and his car had been shot at in separate incidents. Shortly before the current offense, he began receiving threats towards him and his family. He bought the gun to protect his family. He explained that a major factor in his past decisions was his relationship with alcohol, which clouded his judgment. He committed to change and was working on becoming a better man and father. He was “no longer participating in gang activity” and did not “associate with gang members.” He was going to focus on his family. He regularly attended AA meetings and worked two jobs to provide for his family. His attendance at AA meetings was confirmed. Numerous character reference letters were submitted in support of Williams, including from his girlfriend, children, friends, manager at work, and present and past coworkers. At the May 2025 sentencing hearing, counsel argued the Romero motion. The trial court stated that the character reference letters “completely contrast what has been presented in the pre-sentence report and [Williams’s] background.” The court explained it did not have enough information about Williams—counsel told the court he was out of the gang life, he was “not doing the things anymore,” but the court gave that little weight; it did not know his psychological history or have information about him other than what the defense provided. The court stated its inclination that it did not find enough to overcome the presumption to keep the strike in place. Before it would rule on the Romero motion, the court ordered a diagnostic evaluation pursuant to section 1203.03. Williams was remanded into custody and transferred to prison for the evaluation.

6 A forensic psychologist conducted the diagnostic evaluation in July 2025 at the prison and submitted a report which includes the following. Williams was cooperative. His childhood involved both parents who drank heavily and physical abuse of his mother and himself by his father. He was in a relationship since he was 18 years old, and has two children and two stepchildren, who he treats as his own. He was working two jobs as a dishwasher at restaurants. He discussed his alcohol and marijuana consumption, both of which started at age 15. He admitted he had a problem with alcohol and stated he had been attending AA meetings since January 2025. But he told the psychologist he last consumed alcohol on June 5, 2025, which was the same day he was remanded into custody. He said with AA he could refrain from getting drunk and would just drink one or two beers. While he had letters documenting his attendance at AA meetings and letters from members documenting his commitment to sobriety, it was clear to the psychologist that those people were not aware that he continued to consume alcohol. Regarding gang affiliation, the psychologist explained that when she went to Williams’s building to interview him, he was “housed in an active gang building, and not in a sensitive needs yard (SNY, which is a building that houses gang drop outs).” Per the psychologist’s review of CDCR databases, upon arriving at the prison, Williams did not identify himself as a gang drop-out or request SNY housing. To the interview, Williams “arrived with a ‘shadow’ (another active gang member who ensures gang members do not participate in mental health services) and refused to participate in the evaluation.” The psychologist explained the purpose of the evaluation and that it was an opportunity for him. Williams stated that “he and the ‘shadow’

7 had to go ‘ask’ someone else ‘if [he] could participate.’ He returned to the office a few minutes later and said he ‘would be allowed’ to participate.” The psychologist told Williams that due to the building he was housed in and the events which just transpired, it appeared he continued to be an active gang member. Williams replied, “ ‘I just didn’t want to be around chomos (meaning child molesters) and people like that. Anyway, I never told the officer I couldn’t leave the gang, but even if I did, I would still have enemies. I told some of them I’m going to go my own way, and some were cool with it but some not really. I wasn’t really even participating in gang activity when my house got shot up, but I guess it was from things in the past.’ ” The psychologist reported that Williams “was evasive when asked again about his gang drop-out status” and it was clear that he “continue[d] to associate with his gang as he is housed in an active Sureño (Southerner) building and ha[d] to ask permission from members to engage in specific activities.” Williams was remorseful. There was too much alcohol in his system and his past was getting back to him—“my house getting shot up made me feel like anyone was a target.” Now, he wanted to get his family taken care of. He was a good dad and a hard worker. Alcohol was a challenge for him, but he said he would not go back to it. He would continue with AA, was willing to participate in programs to get ahead, and was interested in employers that hire felons so he could go further and get benefits. He took responsibility for what he did and believed that without alcohol he would not have done it. The psychologist stated that Williams had already been afforded several opportunities to habilitate and leave the gang life and alcohol behind, but “he not only continues to be a safety threat to the community but appears 8 to target minors.” He “continued to be a gang member” and violated probation three times. It was unlikely he would comply with probation terms. And despite believing he would not have committed the offense were it not for alcohol, he continued to drink alcohol even while attending AA meetings. The psychologist recommended probation be denied, opining Williams “may continue his criminal behavior and pose a threat to the community.” Williams filed a reply to the diagnostic evaluation. Mainly, Williams disputed any representation that he continued to be an active gang member. He asserted that when he arrived at the prison for intake, he spoke with a classification officer regarding his past gang involvement and tattoos. He explained he had covered or altered his tattoos to distance himself from CVC and stated that he no longer identified as a gang member. When the officer informed him that he was listed as a Sureño gang member and could be placed in protective custody, he requested housing in general population because he did not want to be housed with sex offenders. In general population he was sent to the Sureño group and complied with their rules not as gang allegiance but as the only way to avoid punishment and violence and to acquire privileges. The probation department filed a supplemental probation report after reviewing the diagnostic evaluation. The supplemental report noted that during the pre-sentencing investigation, Williams had stated he had severed ties with CVC, disposed of gang clothing, and planned to cover his gang tattoos. But while in prison he was housed in “an active gang unit” rather than a sensitive needs yard, which is designated for inmates who have dropped out of gangs. A review of the CDCR databases confirmed Williams had not identified as a gang drop-out nor requested sensitive needs yard 9 housing. The report also discussed Williams’s arrival at the psychologist’s interview with a shadow and needing permission to be interviewed. Based on these observations, the probation department opined that Williams “remain[ed] actively involved with his gang.” Williams continued to consume alcohol, remained involved in gang activity, and had previously violated probation. The probation department maintained its recommendation that Williams be sentenced to four years. On September 17, 2025, the trial court conducted the final sentencing hearing. By that point, Williams had his gang-related tattoos covered. This “impressed” the prosecutor, who recommended the low term sentence of 32 months. After counsel argued the Romero motion, the court stated the following: The court acknowledged Williams’s supportive family and the character reference letters, stating they contradicted “what the [c]ourt was seeing in this case and with [his] prior conviction.” When Williams went to prison for the diagnostic evaluation, the court hoped he would disavow the gang and sacrifice his comfort to go to “a drop-out yard, or a PC yard,” where there would be no full-pledged gang members. But he did not do that. He chose not to be housed with child molesters, “who would not be interested in” him anyways. It defied common sense for him to think there would not be gang members in general population. But, even if Williams did not know initially, once he found out, “you could have notified prison officials, and told them you could suck it up for the sake of your family, and your community, . . . and get out of there, and hang out with child molesters.” “That is what stood out to the [c]ourt the most, that you chose to stay in the gang yard, even after finding out it was a gang yard, over your family. [¶] And that’s how I see this. You chose the gang over your family” and “over the community that supports you. You could have changed that. . . . [¶] I’m not a stranger to this 10 process. I’m not a stranger to gang cases, or gang members, or gang members who don’t want to be gang members any[]more. [¶] And I’m quite familiar with the process by which people can do that, and I have seen that done by folks. And it just shocked me to see that that’s your choice. And that’s what really struck me was the loudest noise for the [c]ourt. [¶] Out of everything else, that was the loudest message I heard, that you have made a choice that you can’t get out of gang life.” The trial court explained it was “shocking” that the psychologist recommended prison, when usually after a diagnostic evaluation the psychologist does not recommend prison. The court referenced the “shadow gang member” going before Williams to get permission to be interviewed by the psychologist, which told the court he would not be successful on probation. The court stated, “Your prior probation case, it is clear you continue to associate with gang members. You violated [probation] for gang issues. You have not given up gang life. [¶] You might have covered up a tattoo or two, but you’re still a gang member. You’ve chosen that path.” The diagnostic evaluation could have shown that Williams “[got] rid of the gang life or chose a different path, and I would have probably given you probation, but you didn’t.” The trial court acknowledged that Williams’s prior strike offense was not a violent felony, but it was gang related and he violated probation multiple times for gang issues. While the current offense is not a violent felony, the court explained that it indicated Williams was a greater degree of danger to society because he was “still engaging in gang activity that can cause someone to react violently, or if you so chose and you didn’t like the answer, whoever you were with could increase the violence, and you would have as a gang member had to join them or suffer the consequences.”

11 The trial court did not find that it would be in the interest of justice to strike the strike, and therefore it denied the Romero motion. The court sentenced Williams to prison for the low term of 16 months, doubled to 32 months for the strike. II. DISCUSSION Williams argues the trial court prejudicially abused its discretion in denying his Romero motion by relying on facts underlying counts which had been dismissed without a Harvey waiver, and by ignoring relevant factors and relying on personal experience as a former gang prosecutor to conclude he remained gang affiliated. A. General Legal Principles and Standard of Review “California’s ‘Three Strikes’ law applies to a criminal defendant who is currently charged and convicted of a felony and who has previously been convicted of one or more serious or violent felonies.” (In re Coley (2012) 55 Cal.4th 524, 528.) But this scheme does not eliminate a court’s discretion to dismiss a defendant’s prior strike conviction. (Romero, supra, 13 Cal.4th at pp. 529–530.) Either on the court’s own motion or on application of the prosecuting attorney, the court may order a prior strike conviction dismissed “in furtherance of justice.” (§ 1385, subd. (a); People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).) “A [sentencing] court’s discretion to strike prior felony conviction allegations in furtherance of justice is limited.” (Romero, supra, 13 Cal.4th at p. 530.) It “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 [Three Strikes law’s] spirit, in whole or in part, and hence should be treated as though he had not previously been convicted 12 of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) “Cumulative circumstances, including that a defendant’s crimes were related to drug addiction and the defendant’s criminal history did not include actual violence, may show that the defendant is outside the spirit of the Three Strikes law.” (People v. Avila (2020) 57 Cal.App.5th 1134, 1140–1141 (Avila).) We review a trial court’s ruling on a Romero motion under the deferential abuse of discretion standard. (Carmony, supra, 33 Cal.4th at p. 376.) Given the “strong presumption” that any sentence imposed in conformity with the Three Strikes law is rational and proper, a trial court abuses its discretion in denying a Romero motion only in limited circumstances—e.g., where the court was not aware of its discretion to dismiss, where it considered impermissible factors, or where applying the Three Strikes law to a set of facts would produce an arbitrary, capricious, or patently absurd result. (Carmony, at p. 378.) In short, it is not enough to show that reasonable minds might disagree; where the record is silent or “ ‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.’ ” (Ibid.) Because the circumstances must be “ ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the’ ” Three Strikes law scheme, “the circumstances where no reasonable people could disagree that” he falls outside the spirit of the scheme “must be even more extraordinary.” (Ibid.) It is the defendant’s burden to show the trial court abused its discretion. (Id. at p. 376.)

13 B. Dismissed Counts Three and Four Williams argues the trial court abused its discretion by considering facts underlying two counts which had been dismissed without a Harvey waiver to deny his Romero motion. 1. Additional Facts Williams was charged with four counts. He pled no contest to count one—possession of a firearm by a felon—and the three remaining counts were dismissed. At issue on appeal are the circumstances surrounding counts three and four.4 Count three—assault with a deadly weapon—was for an offense in March 2024 alleging that Williams brandished a gun in front of a juvenile. Count four—disturbing the peace—involved an alleged offense on the same day of the pled offense in September 2024. According to the probation report, Williams and another gang member entered a market and asked the juvenile store employee “ ‘Are you a Buster?’ ” and “ ‘Do you bang?’ ” The employee was scared and told his sister and their boss that there were two men “ ‘getting ready to jump’ ” him. During the sentencing proceedings, Williams argued the trial court should strike references in the probation report to the facts and circumstances of counts three and four because they were dismissed without a Harvey waiver. The court requested, and the parties submitted, further briefing on the issue. Ultimately, the court concluded that the probation report should include facts related to count four because it was transactionally related to count one. The court stated it would not “just take in a vacuum on this day at this location he possessed a firearm and he’s a prohibited person. That’s not what the [c]ourt does in sentencing. The 4 Williams does not challenge consideration of the circumstances underlying the count two charge at sentencing.

14 [c]ourt looks at the facts behind the particular charge.” As to count three, the court determined it needed to be included in the probation report but was “not giving it much weight.” Therefore, the only language the court struck from the probation report was the inaccurate statements that those counts had been dismissed with a Harvey waiver. 2. Legal Principles Under Harvey, supra, 25 Cal.3d at p. 758, without a waiver by the defendant, a court may not consider facts underlying a dismissed count to impose “adverse sentencing consequences.” But this rule does not preclude the court from “ ‘reviewing all the circumstances relating to’ ” a defendant’s admitted offenses in sentencing. (Ibid.) The Harvey court denominated such facts as “transactionally related to the offense to which [the] defendant pleaded guilty.” (Ibid., italics omitted; Crump v. Appellate Division of Superior Court (2019) 37 Cal.App.5th 222, 246.) A transactional relationship exists where “it could at least be inferred that some action of the defendant giving rise to the dismissed count was also involved in the admitted count.” (People v. Beagle (2004) 125 Cal.App.4th 415, 421.) 3. Analysis The People acknowledge there was no Harvey waiver. As to dismissed count four, the People assert that the facts were transactionally related to admitted count one. We agree with Williams that People v. Berry (1981) 117 Cal.App.3d 184 is instructive. There, the defendant was apprehended in a stolen car with a pistol under the seat. (Id. at pp. 196–197.) He was charged with, as relevant here, unlawfully taking a vehicle, carrying a concealed weapon, and carrying a loaded firearm. He pled guilty to the vehicle charge in return for dismissal of the weapons charges. (Id. at pp. 188, 193–194.) The trial court imposed 15 the upper term on the vehicle count, based in part on the gun possession. (Id. at pp. 190, 193.) The appellate court concluded that there was no transactional relationship between the admitted and dismissed counts. The court observed that the question “whether the possession of the gun was transactionally related to the driving of the vehicle is a close one. . . . In each of [several cases that the court cited where there was no Harvey error] it may be seen that there was a close relationship between the offense to which there was a plea of guilty and the dismissed offense. [¶] In the instant case, no such relationship appears. There is nothing to show that the defendant used the pistol to obtain or retain possession of the vehicle. He did not drive the vehicle while brandishing the weapon. The vehicle merely served as a container for it. Such a tenuous connection between the dismissed counts and the vehicle theft does not rise to the status of being ‘transactionally related.’ ” (Id. at p. 197.) Here, it cannot be inferred that Williams’s alleged actions in the market were also involved in the admitted count for gun possession. According to the probation report, Williams entered the market and asked the employee “ ‘Are you a Buster?’ ” and “ ‘Do you bang?’ ” Approximately 90 minutes later, the police conducted a traffic stop of the vehicle Williams was in and, when searching the vehicle, found a gun which Williams admitted was his. There is no evidence, nor argument by the People, that Williams brandished the gun at the market employee or that he even had the gun on him when he was in the market. (See People v. Berry, supra, 117 Cal.App.3d at p. 197.) We cannot, therefore, infer a relationship between the alleged incident in the market and Williams later being found with a gun. The People argue the circumstances in counts one and four were transactionally related because they were closely related in their motive and 16 time. They contend the facts underlying the charges share a common factor—gang affiliation and gang violence. They assert that because Williams had explained that his house had been shot at, he possessed the gun for protection from other gang members, and he told the police officer the night of the arrest that it was a mistaken identity of the market clerk related to his house being shot at, both charges were driven by recent gang violence and were committed alongside other Sureño members. We reject the People’s position for the reasons stated above. It is an overbroad interpretation of the Harvey exception to conclude that gang affiliation and the presence of other gang members in both the dismissed and admitted counts means they were transactionally related. Further, the People cite no authority that the 90- minute period between the alleged market offense and the gun possession offense mandates an inference of transactional relationship. This is especially so considering that the record does not show that Williams had the gun with him when he was in the market. People v. Bradford (1995) 38 Cal.App.4th 1733, cited by the People, is distinguishable. There, the dismissed count for gun possession was transactionally related to the count for marijuana cultivation to which the defendant pled guilty. (Id. at p. 1736.) The cultivation was a continuing crime and the guns were found in the defendant’s cabin located in a compound dedicated to marijuana cultivation. (Id. at pp. 1738–1739.) The record permitted a fair inference that the defendant was present in his cabin with the weapons at some point during the marijuana cultivation. Therefore, the defendant was armed with the guns during the cultivation offense. (Id. at p. 1739.) The circumstances here are distinguishable for the reasons discussed above.

17 In sum, the inference that some action of Williams giving rise to dismissed count four was also involved in admitted count one is not reasonable. Accordingly, the facts underlying count four are not transactionally related to the admitted gun possession count. As to count three—the assault with a deadly weapon charge based on Williams allegedly approaching a juvenile and brandishing a gun in March 2024—the People do not argue this count is transactionally related to admitted count one. Instead, they contend that the trial court did not consider the circumstances surrounding count three. While asserting that the court was not prohibited from considering the facts—the rule is only that the defendant cannot suffer adverse sentencing consequences by the facts of the dismissed count—the People argue that the trial court did not actually consider those facts. We conclude that the trial court could not consider the facts underlying dismissed counts three and/or four to impose “adverse sentencing consequences.” (Harvey, supra, 25 Cal.3d at p. 758.) That is, in denying Williams’s Romero motion. As discussed, post, the court considered these facts, at least in part, in reaching its decision. Therefore, it erred. C. Gang Considerations and Other Factors Williams argues the trial court ignored relevant factors and focused on his alleged gang affiliation, which was not supported by substantial evidence but, rather, the court’s experience as a former gang prosecutor. In reviewing a Romero motion, the trial court needed to have considered the nature and circumstances of Williams’s present felony and prior strike convictions and the particulars of his background, character, and prospects. (People v. Williams, supra, 17 Cal.4th at p. 161.)

18 The present gun possession offense is not a serious or violent felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).) The prior strike offense for making a criminal threat is a serious, but not violent, felony. (Ibid.) Williams was 25 years old when he committed the present offense and 18 years old when he committed the prior strike offense. His 2018 prior strike conviction was his sole felony conviction, and sole criminal conviction overall, before the present conviction. Williams attributes his present offense to being intoxicated and having an alcohol abuse problem. He started attending AA meetings and represented he was sober. Williams has a long-term girlfriend and four children and was working two jobs to support his family. Numerous character reference letters show support from his family, coworkers, and the community. Williams argues the trial court ignored relevant factors, including his fatherhood, relative youth, employment history, and substance use problem. We disagree. The trial court acknowledged that the present and prior strike offenses were non-violent and the present offense was not serious. It repeatedly acknowledged his family and the support he was receiving. It mentioned his “alcohol side.” At an earlier sentencing hearing, the court acknowledged Williams’s youth. Moreover, the above information was part of the record. The trial court “is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary” (People v. Myers (1999) 69 Cal.App.4th 305, 310), and nothing in the record suggests the court did not consider the factors Williams mentions. In fact, by implication, the record demonstrates that the court believed these factors weighed in Williams’s favor, as demonstrated by the court’s main reliance on Williams’s gang membership in its ruling. In denying the Romero motion, the court stated that Willliams “chose the gang.” The court explained that if 19 the diagnostic evaluation had demonstrated that Williams got “rid of the gang life or chose a different path,” then the court “would have probably given [him] probation, but [he] didn’t.” Williams relies on Avila, supra, 57 Cal.App.5th 1134 to contend that the above factors demonstrate he falls outside the spirit of the Three Strikes law. In Avila, the defendant harassed roadside fruit vendors, demanding they pay him money to sell at the location. When they did not pay him, the defendant threw the fruit to the ground and stomped on it. (Id. at p. 1139.) After he was convicted of attempted second degree robbery and attempted extortion, the trial court denied the defendant’s Romero motion and imposed a third strike sentence. (Id. at pp. 1139–1140.) The Court of Appeal concluded the trial court abused its discretion by not striking any of the defendant’s prior strikes. (Avila, supra, 57 Cal.App.5th at p. 1140.) The court included the following conclusions in its analysis. First, the trial court appeared to agree the prior strikes were remote in time (preceding his current convictions by 28 and 26 years) but seemed to question whether such remoteness could be considered. (Id. at p. 1141.) Second, the trial court mistakenly believed it could not consider that the defendant was under 21 years old at the time of the prior strikes as a mitigating factor. (Id. at pp. 1141–1142.) Third, the trial court went beyond consideration of appropriate factors when it speculated about what might have happened in the current attempted robbery and attempted extortion offenses had the police not been called, and it erred in mischaracterizing those offenses as violent crimes. (Id. at pp. 1142–1143.) Fourth, the defendant had long struggled with drug addiction, but it could not be said he had never addressed it. And his wife spoke well of his character. (Id. at pp. 1143–1144.) Fifth, because the defendant was 47 years old when 20 sentenced, the court observed his Three Strikes sentence, coupled with the determinate term he received, meant “he will likely die in prison,” which was an “unjust” consequence the trial court appeared not to consider. (Id. at p. 1144.) The Avila court determined that “no reasonable person could agree that the sentence imposed on Avila was just.” (Id. at p. 1145.) Avila is distinguishable. Here, the trial court considered the relevant factors, as discussed above. There is no demonstration that it believed that it could not consider certain appropriate factors. Additionally, despite the probation department’s recommendation to impose the two-year midterm, doubled to four years because of the prior strike, the trial court imposed the 16-month low term, doubled to 32 months. This is not an excessively lengthy term and cannot be said to be unjust. (See People v. Garcia (1999) 20 Cal.4th 490, 500 [“[A] defendant’s sentence is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.”].) We do, however, agree with Williams’s assertion that the trial court improperly speculated about how his gang involvement could have led to a worse outcome. In discussing the “current case,” the court stated that it indicated Williams posed a greater degree of danger to society “because you’re still engaging in gang activity that can cause someone to react violently, or if you so chose and you didn’t like the answer, whoever you were with could increase the violence, and you would have as a gang member had to join them or suffer the consequences.” The court was clearly referring to the facts of dismissed count four, where Williams and another gang member allegedly entered the market and asked the juvenile employee if he banged and was a buster. As discussed above, it was error for the court to consider the facts 21 underlying count four in deciding to deny the Romero motion. Further, the court was speculating “about what might have happened had” Williams not liked the employee’s answer, but what did not actually happen. (Avila, supra, 57 Cal.App.5th at p. 1142.) “Sentencing is not the proper venue for the trial court’s imagination.” (Ibid.) Instead, the court must consider “the nature and circumstance of the crime actually committed, not a crime that might have occurred.” (Ibid.) To the extent the court’s statements weighed in its decision to deny the motion, the court erred. Next, Williams argues that the trial court’s determination that he had not left the gang is unsupported by substantial evidence. Rather, he contends, the court based the finding on its prior experience as a gang prosecutor.5 We disagree. The record discloses substantial evidence from which the trial court could conclude that Williams remained gang affiliated. At the time of the present offense, Williams had been a member of CVC, affiliated with the Sureño gang, for six to seven years. In his Romero motion, Williams acknowledged that both the present and prior strike offenses involved membership in the gang. Leading up to the present offense, his house and vehicle had been shot at and he had received threats. He reported that these instances could have been gang-related. He obtained the gun to protect his 5 The People argue Williams forfeited any argument that the trial court improperly relied on personal experience as a gang prosecutor to conclude that Williams was still a gang member and, consequently, deny his Romero motion because he failed to object. Assuming Williams forfeited this challenge, we exercise our discretion to consider it to forestall a claim for ineffective assistance of counsel. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1126.) Based on this conclusion, we need not address Williams’s argument that his trial counsel provided ineffective assistance of counsel.

22 family from people who might be affiliated with gangs or were out to get him. In 2018, Williams was sentenced to three years’ probation for the prior strike conviction. Between 2019 and 2020 he violated probation three times, all due to violating the gang terms. On the night of his arrest for the present offense in September 2024, Williams told the police officer he could not leave the gang life. But by March 2025, Williams claimed he had severed ties with CVC. The initial probation report stated that while Williams claimed he no longer associated with CVC, that people could still be after him demonstrated his deep-rooted gang affiliation which presented an ongoing threat to public safety. His admission that he carried a gun due to fear of his and his family’s lives “prove[d] he is entrenched in the violent conflicts that come with gang involvement.” At the May 2025 sentencing hearing, defense counsel reiterated that Williams was no longer participating in the gang life and intended to cover his gang-related tattoos. The trial court made clear that, at that time, it did not “find enough to overcome the presumption to keep [the strike] in place.” Because it wanted more information about Williams, the court ordered a diagnostic evaluation and Williams was remanded into custody to complete that process. Williams had been in prison for three weeks at the time of his diagnostic interview. The psychologist provided the following information relevant to Williams’s gang affiliation: Williams was housed in an “active gang building” and not in a sensitive needs yard which houses gang dropouts. He arrived to the interview with “a ‘shadow’ (another active gang member who ensures gang members do not participate in mental health services)” and initially refused to participate in the evaluation. But after the psychologist explained the purpose of the evaluation and the opportunity it provided him, Williams “and the ‘shadow’ had to go ‘ask’ someone else ‘if [he] could 23 participate.’ He returned to the office a few minutes later and said he ‘would be allowed’ to participate.” When the psychologist informed Williams that it appeared he continued to be an active gang member based on the building in which he was housed, the shadow, and his needing permission to speak with her, Williams explained he did not want to be around child molesters. He never told the officer he could not leave the gang. But even if he did leave, he would still have enemies. Williams stated, “ ‘I told some of them I’m going to go my own way, and some were cool with it but some not really.’ ” The psychologist reported that Williams “was evasive when asked again about his gang drop-out status” and it was clear that he “continue[d] to associate with his gang as he [was] housed in an active Sureño” building and he had “to ask permission from members to engage in specific activities.” This information from the diagnostic evaluation provides further substantial evidence supporting the trial court’s finding that Williams remained gang-affiliated. Williams argues that the trial court dismissed or ignored evidence that he had renounced his gang affiliation. Namely, that the psychologist reported that Williams had stated he “told some of them [gang members] I’m going to go my own way.” And by the time of the final sentencing hearing, Williams had covered up his gang-related tattoos. But this information was before the trial court and the court acknowledged that Williams had covered his tattoos. Still, it determined he remained a gang member. That there is evidence which Williams contends is in his favor and contrary to the court’s finding does not negate the substantial evidence supporting the court’s determination that Williams remained gang-affiliated. As to Williams’s contention that the trial court improperly relied on personal experience, he cites to two comments by the court at different parts of the sentencing proceedings. At the April 2025 hearing, defense counsel 24 characterized the “ ‘Do you bang?’ ” question to the minor in the market as being “a simple question,” and the court disagreed.6 In the colloquy, the court reminded counsel of the court’s prior experience as a gang prosecutor. Williams then points to the court’s conclusion at the final sentencing hearing that Williams chose the gang, explaining it was “not a stranger to gang cases” or to “gang members who don’t want to be gang members any[]more.” The court determined that Williams had not gone through the “process by which people can do that,” though, and he did not get out of gang life. We conclude that the trial court did not use its experience as evidence to determine that Williams had not left the gang. (See Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 287 [“The court’s personal experience is not evidence.”].) Williams argues the court took the information related to his being housed in general population, not in a sensitive needs yard, and improperly speculated about his gang affiliation based on what the court knew as a former gang prosecutor but what Williams—who had never been to prison before—allegedly did not know. We reject his contention. There is information separate from the court’s experience or statements which supports the determination. During the diagnostic evaluation, the psychologist explained to Williams that, in part because of the building he was housed in, it appeared he remained an active gang member. Williams claimed he did not want to be housed with child molesters. But there is nothing in the record demonstrating that at any point while in prison Williams requested to be removed from general population so that he could distance himself from gang members. The trial court acknowledged that even if Williams did not know 6 These facts pertain to dismissed count four.Therefore, to the extent the trial court relied on them in denying the Romero motion, it erred.

25 there would be gang members in general population when he arrived, once he found out there were, he could have requested to be moved. While Williams wants us to conclude that his inexperience with prison life “likely explains why” he did not request a housing change, there is an alternative, reasonable inference supported by the record—he did not request a sensitive needs yard because he remained affiliated with the gang. (See People v. Clark (2011) 52 Cal.4th 856, 943 [“ ‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.’ ”].) We cannot conclude that the court’s determination that Williams’s failure to request placement in a special needs yard indicated he had chosen the gang constituted speculation or was based on the court’s prior experience. Though a “trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence” (People v. Cluff (2001) 87 Cal.App.4th 991, 998), that is not the case here. The court’s analysis did not enter “the realm of imagination, speculation, supposition, [or] guesswork.” (Id. at p. 1002.) At best, the circumstances here “ ‘show that reasonable people might disagree about whether to strike’ ” a prior conviction, which is not sufficient to overcome the “strong presumption” that any sentence imposed in conformity with the Three Strikes law is rational and proper. (Carmony, supra, 33 Cal.4th at p. 378.) This is not an “extraordinary case” where the relevant factors “manifestly support the striking of a prior conviction and no reasonable minds could differ.” (Ibid.) Accordingly, the failure to strike Williams’s prior strike conviction did not constitute an abuse of discretion. Finally, even if we assume that the trial court erred by denying Williams’s Romero motion in reliance on the circumstances underlying dismissed counts three and/or four and on the court’s personal experience as 26 a gang prosecutor, the errors, individually or cumulatively, were harmless. “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492.) The trial court clearly made its decision based on Williams’s gang affiliation. It explained that had the diagnostic evaluation shown that Williams left the gang life, it “would have probably given [him] probation.” As we concluded above, substantial evidence—excluding any information related to the dismissed counts or based on the court’s experience—supports the finding that Williams remained gang affiliated. Therefore, it is not reasonably probable that the trial court would have granted Williams’s motion had it not made the assumed errors. In sum, the trial court did not prejudicially abuse its discretion in denying Williams’s Romero motion to strike his prior strike conviction. III. DISPOSITION The judgment is affirmed.

27 _________________________ LANGHORNE WILSON, J.

WE CONCUR:

_________________________ BANKE, Acting P. J.

_________________________ SMILEY, J.

People v. Williams / A174476