Filed 5/27/21 P. v. Painia CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL PAINIA

Defendant and Appellant.

 B301726

 (Los Angeles County

 Super. Ct. No. BA468072)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David V. Herriford, Judge. Affirmed.

Lori A. Nakaoka, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Nima Razfar, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Dissatisfied with repairs performed on his vehicle, 

appellant Manuel Painia entered a repair shop and demanded a 

refund from the shop owner, pointed a gun at him, threatened 

him, then moved outside the shop and fired the gun into the air. 

A jury convicted appellant on five counts arising from the 

incident, including assault with a firearm and discharge of a 

firearm. On appeal, appellant challenges the court’s sentencing 

on the discharge count, arguing that the court erred in finding a 

separate and distinct act for purposes of Penal Code section 654.

1

He also contends the trial court failed to recognize its discretion 

under the three strikes law to impose a concurrent sentence on 

that count. Lastly, he argues that the court abused its discretion 

in refusing to strike his prior strike convictions. We affirm. 

PROCEDURAL HISTORY

An information filed in 2018 charged appellant with 

assault with a semi-automatic firearm (§ 245, subd. (b); count 

one), criminal threats (§ 422, subd. (a); count two), discharge of a 

firearm with gross negligence (§ 246.3, subd. (a); count three), 

possession of a firearm by a felon with four priors (§ 29800, subd. 

(a)(1); count four), and unlawful possession of ammunition 

(§ 30305, subd. (a)(1); count five2). The information further 

alleged appellant personally used a firearm as to counts one and 

two (§ 12022.5), suffered two prior serious or violent felony 

convictions within the meaning of the three strikes law (§§ 667, 

1All further statutory references are to the Penal Code 

unless otherwise indicated.

2 The information omitted count five and designated the 

unlawful possession of ammunition charge as count six. The trial 

court later designated the count as count five for clarity during 

trial. 
3

subds. (b)-(j), 1170.12, subd. (b)), suffered two prior serious felony 

convictions (§ 667, subd. (a)(1); counts one through three), and 

served two prior prison terms (§ 667.5, subd. (b)). 

Appellant’s first trial ended in a mistrial after the court 

found the jury was deadlocked. On retrial, the jury found 

appellant guilty as charged on all five counts and further found 

true the allegation that appellant personally used a firearm. 

Following a court trial on appellant’s prior convictions, the 

court found true the allegations regarding appellant’s two prior 

strike convictions. The court found the People failed to prove the 

allegations regarding prior prison convictions under section 

667.5, subdivision (b), and therefore struck them. The court 

denied appellant’s Romero3 motion to strike his prior strikes. 

The court sentenced appellant to a total of 56 years to life 

in prison as follows: on count one, the court imposed the upper 

term of nine years, tripled pursuant to section 667, subdivision 

(e)(2)(a), plus four years for the firearm enhancement under 

section 12022.5 to run consecutively, for a total of 31 years. On 

count two, the court imposed a term of 25 years to life pursuant 

to the three strikes law, plus four years for the firearm 

enhancement. The court stayed the sentence on count two 

pursuant to section 654. On count three, the court imposed a 

consecutive term of 25 years to life pursuant to the three strikes 

law. On each of counts four and five, the court imposed threeyear terms, doubled pursuant to section 1170.12, and stayed 

pursuant to section 654. The court struck the five-year prior 

conviction enhancements under section 667, subdivision (a) as to 

counts one through three. Appellant timely appealed. 

3People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4

FACTUAL BACKGROUND 

I. Prosecution Evidence

Andre Francois owned an auto repair shop called Islander 

Auto Repair, at the corner of West 46th Street and Western 

Avenue in Los Angeles. He also owned the restaurant next door. 

Francois testified that he had seen appellant two or three times 

prior to the incident and worked on appellant’s car about two 

months earlier. The morning of May 11, 2018, appellant came 

into the shop. He was accompanied by Chris Thompson, whom 

Francois knew because Thompson grew up down the street from 

the shop. Francois testified that he first saw appellant that 

morning riding in his motorized wheelchair, coming through the 

alley behind the shop. Francois approached appellant at the 

front of the shop, and appellant said that Francois owed him over 

$800 and needed to pay him today. Appellant showed him a 

receipt from car repairs done at another shop, stood up from the 

wheelchair, and said, “I need my fucking money today, otherwise 

I’m going to fuck up the shop.” 

Francois smelled alcohol on appellant, so Francois told 

appellant to “come back another time with the right state of mind 

and we [sic] talk about this.” Appellant grew angrier and said, 

“You [sic] going to fucking give me my money today or I’m going 

to blow the motherfucker up.” Francois testified that he did not 

pay attention to these statements; instead, he walked back into 

the shop. Appellant continued to stand on the sidewalk, 

swearing. Francois told another mechanic, “Don’t worry about it. 

He’s drinking.” Appellant and Thompson left and Francois went 

back to work.

Appellant returned about 10 to 15 minutes later. He was 

again accompanied by Thompson, who was now on a bicycle. 
5

Francois testified that he approached appellant and asked him 

what happened. Appellant pulled a black handgun out of his 

pocket, pointed it at Francois’s head, and said, “motherfucker, I 

need my motherfucking money now. I’ll blow your fucking head 

off.” Francois recalled that the gun was a few inches from him at 

the time. Francois put his hands up and told appellant, “you 

don’t have to do this.” Then Francois heard Thompson say 

something to appellant, causing appellant to turn away. As soon 

as this happened, Francois ran out of the shop, toward Western 

Avenue. 

When Francois got to the corner, he called 911. The 

prosecution played the call for the jury, placed at 9:08 a.m. on 

May 11, 2018. Francois told the 911 operator that a man in a 

wheelchair pointed a gun at his head. As he continued to give 

details of the incident, he told the operator that appellant was 

“shooting right now!” When the operator asked who the assailant 

was shooting at, Francois responded, “I don’t know,” and later 

that he was shooting “at the cars.” 

Francois testified that while he was on the phone with 911, 

he could see appellant on the sidewalk “pointing the gun at 

everything” and also pointing it back inside the shop. Francois 

crossed 46th street and lost sight of appellant as he hid. When 

he looked again, appellant was in front of the restaurant, moving 

toward Western in his wheelchair, still holding the gun. Then 

appellant raised his arm and fired the gun. As Francois 

described the shooting, appellant was not pointing up in the air, 

but was pointing across the street. The prosecution played 

surveillance video from the auto shop that showed the assailant

firing into the air. 
6

Francois saw appellant fire one shot. Afterward, he saw 

Thompson take off running and appellant head toward the alley. 

Francois then flagged down the police. He testified that he 

believed people were walking on the street at the time of the 

incident, and the nearby market was also open. 

Two mechanics working that morning at the auto repair 

shop also testified. Lavonne Phillips stated that he had seen 

appellant come into the shop several times before. That day, 

Phillips saw appellant come into the shop in his wheelchair, 

seeming angry. Appellant was going up and down the sidewalk 

in his “scooter wheelchair” yelling, “Andre, I want my $900.” 

Phillips testified that appellant also threatened Francois. 

Appellant was accompanied by Thompson; at one point, appellant 

told Thompson, “Go get the gun.” Phillips saw Thompson walk 

toward the alley, then return with a gun. Thompson passed the 

gun to appellant and appellant said, “We gonna blast these 

motherfuckers.” 

Phillips hid toward the back of the shop when he heard 

appellant say he was going to “blast” people; he also called 911. 

In the 911 call, which was played for the jury, Phillips reported 

that a man in a wheelchair pulled out a gun, and was 

“threatening a guy.” Phillips also said that the man pointed the 

gun and “threatened the guys here . . . say he gon’ shoot ’em.” 

Phillips testified that from his hiding spot, he saw appellant and 

Thompson leave the shop, heading toward Western Avenue. 

Then Phillips heard a gunshot. He did not see who fired the gun, 

he just saw people scatter. 

Dougal Toney, Francois’s cousin, was also working at the 

shop that morning. After he opened the shop that morning, he 

saw appellant in the alley, holding a bottle of cognac. Later, 
7

Toney saw appellant in the shop, in his wheelchair, approaching 

Francois. Toney testified that he could not hear their 

conversation. 

After about a minute, appellant left, accompanied by 

Thompson. They returned about five minutes later. Toney saw 

that appellant was holding a file with papers and a handgun. 

Appellant handed the papers to Francois, then said, “you going to 

give me my money or take this gun.” Toney understood that 

statement as a threat. He also saw appellant point the gun at 

Francois’s face. 

Toney testified that Francois walked away toward Western 

Avenue. Then Toney heard appellant tell Thompson that he was 

going to “light up the place.” Toney saw appellant and Thompson 

moving toward Western Avenue. He saw appellant standing 

near the edge of the shop and the restaurant; then appellant fired 

the gun straight up in the air. Toney could not recall if there 

were any pedestrians nearby at that time. 

Officers from the Los Angeles Police Department responded 

to the scene shortly after the shooting. Officer Gabriel Gonzales 

testified that as he and his partner arrived, he saw a person 

matching the description of the suspect (whom he identified as 

appellant at trial) traveling down the street in a wheelchair. He

took appellant into custody. The officers did not find any 

weapons on appellant or in the wheelchair.4 Gonzales then 

proceeded to the corner and spoke to Francois, who pointed to 

appellant and said, “hey, that’s him that shot.” 

4The officers also found and detained Thompson about a 

block away in the alley. 
8

Gonzales testified that appellant appeared intoxicated at 

the time of his arrest. Appellant was able to get out of the 

wheelchair and walk, but his speech was slurred, his eyes were 

red, and he smelled of alcohol. 

Gonzales found a handgun in the alley behind the repair 

shop. The ammunition inside the gun was the same type as a 

spent shell casing he found on the sidewalk in front of the auto 

repair shop. He also spoke to two mechanics inside the shop. 

Gonzales did not see anyone else walking on that side of the 

street during his investigation. He also noted that there was a 

middle school across the street. 

II. Defense Evidence

Appellant testified that his fiancée lived near the repair

shop and he had seen Francois around the neighborhood in the 

past. Appellant paid the auto shop $1,600 to fix his car, but his 

fiancée made all of the arrangements; he never dealt with the 

shop directly. After they got the car back, it started having 

problems right away. Appellant had the car fixed by another 

shop, which cost $ 900. Although he was dissatisfied with the 

repair, he claimed he never spoke to Francois or asked for his 

money back. He also denied that he was at the shop on the day of 

the incident. 

Appellant acknowledged using a wheelchair at times 

because of injuries to his knees. At the time he was arrested, he 

was in his wheelchair on Western Avenue, coming from a 

restaurant called Master Burger, heading back to his fiancée’s 

place. He denied drinking that morning and claimed he did not 

have a handgun. He also denied having any argument with 

Francois, threatening anyone, or shooting a gun. He testified 

that he was not the person pictured on the video shooting the 
9

gun. 

Appellant admitted that he was convicted of a felony in 

1997. He was also convicted of felony domestic violence causing 

injury in 2010, but testified that the conviction was overturned. 

He was also convicted in 2016 of felony corporal injury to a 

spouse with a prior conviction for the same offense. 

DISCUSSION

I. Section 654

Appellant contends that the court should have stayed the 

imposition of his sentence on count three, for discharge of a

firearm with gross negligence. He argues that count three was 

committed with the same intent and objective as counts one and 

two, and therefore the court violated section 654 by imposing a 

separate sentence on count three. We disagree.

A. Background

During the sentencing hearing, the court indicated it 

thought that counts one (assault) and two (threats) merged for 

purposes of section 654, and that it saw “an issue” as to whether 

count 3 (discharge of a firearm) also merged. The court stated it 

was inclined to find that count three “was separate not only in 

time but in intent because it seemed to be directed not toward 

Mr. Francois but towards basically everyone in that area.” 

Appellant’s counsel argued that “the whole course of 

conduct . . . all related to this $800 or $900 that Mr. Painia felt he 

was owed,” and that appellant shot into the air with the same 

intent and objective “to still bring fear to the victim in order to, 

hopefully, lead him to pay the money that Mr. Painia felt was 

owed to him.” He also noted that it was “only a matter of 

minutes” between the time that appellant pointed the gun at 

Francois and threatened him (counts one and two), then walked 
10

outside and fired into the air (count three). Thus, “in my reading 

of this it still is a single course of conduct that Mr. Painia is 

taking in order to recover that money.” 

The prosecutor acknowledged that the firearm discharge 

happened “just minutes after the threat and the assault with a 

firearm,” but argued that after he was threatened, Francois “did 

flee and seek cover and was no longer in the immediate vicinity. 

And at that time Mr. Painia continued to threaten the other 

employees. And, even though the victim was no longer in front of 

him, then decided to negligently discharge the firearm. So, I do 

think there is enough to distinguish them as not being from the 

same course of conduct.” The court agreed with the prosecution, 

finding that count three was “a separate and distinct act from 

counts 1 and 2 and that there were separate objectives.” 

B. Legal framework

Section 654, subdivision (a) provides in relevant part: “An 

act or omission that is punishable in different ways by different

provisions of law shall be punished under the provision that 

provides for the longest potential term of imprisonment, but in no 

case shall the act or omission be punished under more than one 

provision.”

The section precludes imposition of multiple punishments 

for conduct that violates more than one criminal statute but 

constitutes an indivisible course of conduct. (See People v. 

Harrison (1989) 48 Cal.3d 321, 335; People v. Perez (1979) 23 

Cal.3d 545, 551–552.) The purpose behind section 654 is “to 

insure that a defendant’s punishment will be commensurate with 

his culpability.” (People v. Perez, supra, 23 Cal.3d at p. 552.) 

“‘Whether a course of criminal conduct is divisible and therefore 

gives rise to more than one act within the meaning of section 654 
11

depends on the intent and objective of the actor. If all of the 

offenses were incident to one objective, the defendant may be 

punished for any one of such offenses but not for more than one.’” 

(People v. Latimer (1993) 5 Cal.4th 1203, 1208, [Citation 

omitted].)

If, on the other hand, a defendant harbored “multiple 

criminal objectives,” which were independent of and not merely 

incidental to each other, he may be punished for each statutory 

violation committed in pursuit of each objective, “even though the 

violations shared common acts or were parts of an otherwise 

indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 

625, 639.)

Additionally, “a course of conduct divisible in time, 

although directed to one objective, may give rise to multiple 

violations and punishment. [Citations.]” (People v. Beamon, 

supra, 8 Cal.3d at p. 639, fn. 11; see also People v. Kwok (1998) 63 

Cal.App.4th 1236, 1253-1254.) This is particularly so where the 

offenses are temporally separated so that the defendant had an 

opportunity to reflect between offenses, so that the subsequent 

offense represents a renewed intent as well as a new (and often 

increased) risk of harm. (See People v. Kwok, supra, 63 

Cal.App.4th at pp. 1255-1256.)

Whether section 654 “applies in a given case is a question 

of fact for the trial court, which is vested with broad latitude in 

making its determination. [Citations.] Its findings will not be 

reversed on appeal if there is any substantial evidence to support 

them. [Citations.] We review the trial court’s determination in 

the light most favorable to the respondent and presume the 

existence of every fact the trial court could reasonably deduce 

from the evidence. [Citation.]” (People v. Jones (2002) 103 
12

Cal.App.4th 1139, 1143; see also People v. Brents (2012) 53 

Cal.4th 599, 618; People v. Osband (1996) 13 Cal.4th 622, 730; 

People v. Williams (1992) 9 Cal.App.4th 1465, 1473.)

C. Analysis

Appellant contends that the court should have stayed the 

sentence on count three under section 654 because that count 

was “incident to the same objective shared by counts 1 and 2.” We 

are not persuaded. The evidence supported the conclusion that in 

committing counts one and two, appellant harbored the intent to 

force Francois to refund his money. Appellant’s statements, as 

related by all three direct witnesses to the incident, were 

demands to return his money and threats to shoot if he was not 

repaid. Both Francois and Toney testified that appellant made 

these statements while pointing the gun directly at Francois.

Although appellant contends that he harbored the same 

intent and objective when he fired his gun into the air outside the 

shop, substantial evidence supports the court’s conclusion to the 

contrary. After Francois ran from the shop, Toney testified that 

he heard appellant tell Thompson that he was going to “light up 

the place.” He then saw appellant move down the street and fire 

the gun straight up in the air. Francois testified that after he ran 

across the street and called 911, he saw appellant on the 

sidewalk “pointing the gun at everything” before he fired one 

shot. Phillips did not see appellant fire, but he heard appellant 

tell Thompson, “We gonna blast these motherfuckers,” then saw 

appellant move toward the street and heard the gunshot. 

Appellant’s act of firing into the air was also captured on 

surveillance video. This evidence supports the trial court’s 

conclusion that, at the time he fired, appellant’s intent was no 

longer directed at making demands from Francois. Thus, 
13

appellant’s act of shooting into the air was done with a separate 

objective and therefore not subject to section 654.

There was also substantial evidence to support the trial 

court’s conclusion that the acts were divisible in time and 

therefore separately punishable. Appellant argues that the 

evidence showed at most the passage of a few minutes between 

the assault and criminal threats at the auto shop and his later 

discharge of the gun on the sidewalk. He contends this “slight” 

passage of time was insufficient for purposes of section 654. But 

the passage of a few minutes may be sufficient where, as here, 

appellant performed separate acts and had sufficient time 

between the acts for reflection. 

For example, in People v. Trotter (1992) 7 Cal.App.4th 363, 

367–368, the appellate court affirmed the imposition of 

consecutive sentences where the defendant fired two shots about 

a minute apart at a pursuing police car. The court found that the 

defendant’s conduct “became more egregious with each successive 

shot. Each shot posed a separate and distinct risk to [the officer] 

and nearby freeway drivers.” (Id. at p. 368.) Moreover, the court 

pointed out that the conduct at issue involved multiple volitional 

acts, and that “[e]ach shot required a separate trigger pull . . . 

separated by periods of time during which reflection was possible. 

None was spontaneous or uncontrollable. ‘[D]efendant should . . .

not be rewarded where, instead of taking advantage of an 

opportunity to walk away from the victim, he voluntarily 

resumed his . . . assaultive behavior.’” (Ibid., quoting People v. 

Harrison, supra, 48 Cal.3d at p. 338.)

Similarly, here, there was evidence that appellant 

assaulted and threatened Francois in the front of the auto shop; 

then, when appellant was distracted, Francois ran away. 
14

Francois testified that he ran to the corner, called 911, crossed 

the street and hid, and then saw appellant come down the street 

and fire the gun. The other eyewitnesses also saw appellant leave 

the shop and head down the street before the gunshot. Thus, the 

two acts were sufficiently separate in time “to afford the 

defendant opportunity to reflect and to renew his or her intent.” 

(See Kwok, supra, 63 Cal.App.4th at pp. 1255-1256.) Moreover, 

appellant’s act of shooting into the air on a public street, across 

from a school, posed a separate and distinct risk from his earlier 

conduct inside the repair shop, thereby justifying separate 

punishment.

II. Mandatory Consecutive Sentencing under Section 

667

Appellant contends that the trial court incorrectly held it 

was required to impose consecutive sentences on counts one and 

three pursuant to the three strikes law. We reach the merits 

despite the Attorney General’s claim that appellant forfeited his 

claim by not objecting in the trial court, because appellant also 

raises a claim of ineffective assistance of counsel. We conclude 

that the trial court did not have discretion to impose concurrent 

sentences, and therefore affirm.

A. Sentencing under section 667

During sentencing, the court stated that it was imposing a 

mandatory consecutive sentence on count three pursuant to the 

three strikes law, specifically, section 667, subdivision (c)(7) 

(§ 667(c)(7)). “When a defendant is sentenced under the three 

strikes law (Pen. Code, § 667, subds.(b)-(i)) because he has 

previously been convicted of one or more serious and/or violent 

felony offenses (§ 667, subds. (b), (c)), the three strikes provisions 

mandate that ‘[i]f there is a current conviction for more than one
15

felony count not committed on the same occasion, and not arising 

from the same set of operative facts, the court shall sentence the 

defendant consecutively on each count pursuant to [this 

section].’” (People v. Lawrence (2000) 24 Cal.4th 219, 222–223 

(Lawrence), quoting § 667, subd. (c)(6) (§ 667(c)(6)); see also § 

667(c)(7) [providing that for current convictions of “more than one 

serious or violent felony as described in paragraph (6), the court 

shall impose the sentence for each conviction consecutive to the 

sentence for any other conviction for which the defendant may be 

consecutively sentenced in the manner prescribed by law”].)5

5Prior to the passage of Proposition 36, our Supreme Court 

held that the trial court had discretion to impose concurrent 

sentences for felonies committed on the same occasion or arising 

from the same operative facts. (See People v. Hendrix (1997) 16 

Cal.4th 508, 513-514 (Hendrix); Lawrence, supra, 24 Cal.4th at p. 

223.) Proposition 36, approved by the voters in 2012, “amended 

section 1170.12, subdivision (a)(7), which concerns consecutive 

sentencing for multiple current serious and/or violent crimes, but 

it did not make corresponding changes to the previously identical 

statute, section 667, subdivision (c)(7).” (People v. Torres (2018) 

23 Cal.App.5th 185, 197 (Torres).) The parties dispute whether 

the discretion under Hendrix remained good law following the 

passage of Proposition 36, or whether the court was also 

mandated to impose consecutive sentences for serious or violent 

felony convictions committed on the same occasion or arising from 

the same set of operative facts. Our sister courts are split on this 

question, which is currently before the California Supreme Court. 

(See People v. Henderson (2020) 54 Cal.App.5th 612, 621, review 

granted, Dec. 23, 2020 [holding that “Proposition 36 eliminated 

the trial court’s discretion to impose concurrent sentences on 

multiple current serious or violent felony convictions”]; but see 

People v. Marcus (2020) 45 Cal.App.5th 201 [holding that court 
16

The analysis appropriate for determining the application of 

section 667, subdivisions (c)(6) and (7), is not coextensive with the 

test for determining the application of section 654. (People v. 

Deloza (1998) 18 Cal.4th 585, 591–595 (Deloza) [“Indeed, section 

654 is irrelevant to the question of whether multiple current 

convictions are sentenced concurrently or consecutively”].) The 

California Supreme Court has explained: “We read the 

mandatory consecutive-sentencing provision of the three strikes 

law as follows: If there are two or more current felony 

convictions ‘not committed on the same occasion,’ i.e., not 

committed within close temporal and spacial proximity of one 

another, and ‘not arising from the same set of operative facts,’ 

i.e., not sharing common acts or criminal conduct that serves to 

establish the elements of the current felony offenses of which 

defendant stands convicted, then ‘the court shall sentence the 

defendant consecutively on each count’ pursuant to subdivision 

(c)(6).” (Lawrence, supra, 24 Cal.4th at p. 233.)

B. Deloza and Lawrence

Appellant argues that the assault (count one) and 

retains discretion]; People v. Gangel (2019) 42 Cal.App.5th 58 

[same]; People v. Buchanan (2019) 39 Cal.App.5th 385 [same]; 

Torres, supra, 23 Cal.App.5th 185 [same].) We need not reach 

this issue, as we determine that the convictions here were not 

committed on the same occasion and did not arise from the same 

set of operative facts. They thus fall squarely within the 

mandatory sentencing provisions of section 667(c). (See, e.g., 

Torres, supra, 23 Cal.App.5th at p. 201 [consecutive sentencing 

mandate remains for “‘all felonies “not committed on the same 

occasion, and not arising from the same set of operative facts’”

(§§ 667, subdivision (c)(6), 1170.12, subd. (a)(6))”].)
17

discharge of a firearm (count three) “were against a single victim 

committed essentially in one location and arose from the same set 

of operative facts.” He cites two California Supreme Court cases, 

Deloza and Lawrence, which we agree are instructive.

6

In Deloza, the defendant and an armed companion entered 

a furniture store, took money from the cash register and from two 

salespersons, and then from a customer who happened to walk up 

while the robbery was in progress. (Deloza, supra, 18 Cal.4th at 

p. 595.) The court found that the defendant’s “robberies were 

committed in one location, and were apparently brief in duration. 

They were committed essentially simultaneously against the 

same group of victims, i.e., persons in the furniture store. . . . 

Nor was there any other event that could be considered to 

separate one ‘occasion’ of robbery from another.” (Id. at pp. 595-

596.) Thus, for purposes of the three strikes law, “[g]iven the 

close temporal and spatial proximity of defendant’s crimes 

against the same group of victims, they were clearly committed 

on the ‘same occasion.’” (Ibid.)

The court reached the opposite conclusion in Lawrence, 

supra, 24 Cal.4th 219. There, the defendant committed a theft in 

a market, assaulted an individual while fleeing the scene, then 

entered a residential backyard and assaulted two homeowners. 

The court distinguished Deloza, reasoning, “[b]ecause the 

defendant’s crimes in Deloza were committed in one location, 

were brief in duration, and were committed essentially 

simultaneously against the same group of victims, we had no 

6Respondent did not address this argument in its brief, but 

focused only on the issue of whether the court retained discretion 

following Proposition 36.
18

difficulty concluding they were ‘committed on the same occasion.’” 

(Id. at p. 227.) The crimes in Lawrence, by contrast, involved 

“two separate locations (a market and a residence one to three 

blocks away),” were committed “most likely within two or three 

minutes” of each other, and included two entirely separate groups 

of victims (the employees and a patron of the market, and [the 

homeowners], who had no connection to the first crime).” 

(Lawrence, supra, 24 Cal.4th at p. 228.)7 Thus, the court 

concluded that the theft and the assaults in the backyard were 

not committed on the “same occasion” for purposes of section 667. 

(Id. at p. 229.)

The Lawrence court also considered the test for whether 

offenses “arise from the same set of operative facts” under section 

667. The court cited the analysis in People v. Durant (1999) 68 

Cal.App.4th 1393 (Durant), where the defendant committed a 

burglary and two attempted burglaries by walking around a 

condominium complex and committing three crimes at three 

different houses. As the Supreme Court explained, the appellate 

court in Durant “found that the three crimes did not come within 

the ‘same occasion/same operative facts’ exception despite the 

fact that defendant had committed all the offenses at the same 

general location (a housing complex), against what arguably 

might be deemed the same group of victims (persons in the 

housing complex whom he burglarized or attempted to 

7The court distinguished Hendrix, supra, 16 Cal.4th 508 on 

the same basis. (See Lawrence, supra, 24 Cal.4th at p. 228.) In 

Hendrix, the defendant pointed a gun at four people seated at a 

table and demanded their money. (Id. at p. 510.) He was 

convicted of two counts of robbery and two counts of attempted 

robbery. (Id. at p. 511.)
19

burglarize), and although the offenses occurred in succession 

without intervening events. The Durant court emphasized that 

the two attempted burglaries, by their nature and elements, were 

completed before defendant committed the completed burglary, 

and that the crimes did not occur on the ‘same occasion’ as that 

term is commonly understood. Nor did the duration of the crimes 

overlap, each being distinct and completed when defendant 

attempted to enter or successfully entered a residence and then 

left to go burglarize another residence.” (Lawrence, supra, 24 

Cal.4th at p. 232, discussing Durant, supra, 68 Cal.App.4th at pp. 

1396-1400.) Thus, “Durant suggests that the nature and 

elements of the current charged offenses—for example, the extent 

to which common acts and elements of such offenses unfold 

together or overlap, and the extent to which the elements of one 

offense have been satisfied, rendering that offense completed in 

the eyes of the law before the commission of further criminal acts 

constituting additional and separately chargeable crimes—are 

additional factors the court must consider in determining 

whether multiple current crimes arose from the ‘same set of 

operative facts’ when the offenses are committed more than 

seconds apart.” (Lawrence, supra, 24 Cal.4th at p. 233.)

Turning to the facts before it, the court in Lawrence found 

that the defendant’s offenses did not arise from the same set of 

operative facts: “Defendant’s initial crime was the shoplifting 

theft of a bottle of brandy from a market. Although still in flight 

from the crime scene, he thereafter chose to commit new and 

different offenses: the trespass into the [residential] backyard, 

and the ensuing assaults against [the homeowners]. The first 

crime involved an act of theft directed at one group of victims, the 

second involved assaultive conduct directed at an unrelated pair 
20

of victims. The two criminal episodes were separated spacially by 

at least one to three city blocks, and temporally by two to three or 

more minutes . . . . [¶] On these facts we conclude that 

defendant’s felony assault upon [one of the homeowners] did not 

arise out of the ‘same set of operative facts’ as the theft from the 

market.” (Lawrence, supra, 24 Cal.4th at pp. 233-234; see also 

People v. Jenkins (2001) 86 Cal.App.4th 699, 706-707 [consecutive 

sentencing mandatory where defendant assaulted first victim, 

went downstairs to search for weapon, pushed away a bystander, 

then returned upstairs to commit attempted murder of second 

victim].)

C. Analysis

We find the facts of the instant case to be closer to 

Lawrence than Deloza. Appellant committed the assault in the 

auto repair shop by pointing a gun directly at Francois. The 

evidence suggested that several minutes after Francois left, 

appellant moved to the street and then toward the corner, where 

he fired the gun into the air. Thus, the crimes were separated by 

at least a few minutes and occurred in two separate locations. 

Further, the second crime involved a different set of potential 

victims, namely, all those at risk of appellant’s grossly negligent 

discharge of his firearm on a public street. As such, we find that 

the offenses were not committed on the same occasion for 

purposes of section 667.

Similarly, we conclude that the offenses did not arise from 

the same set of operative facts. Appellant’s contention that the 

discharge was “a continuation” of the assault and threats because 

appellant “continued his assault on Francois by following 

Francois while shouting profanities at him and discharging his 

firearm” is not supported by the evidence. Appellant completed 
21

his assault against Francois before choosing to commit a “new 

and different offense[ ]” by moving to the street and discharging 

his gun. (See Lawrence, supra, 24 Cal.4th at p. 232; Durant, 

supra, 68 Cal.App.4th at p. 1406, (“[W]here the elements of the 

original crime have been satisfied, any crime subsequently 

committed will not arise from the same set of operative facts 

underlying the completed crime; rather such crime is necessarily 

committed at a different time.”].) Further, there was no evidence 

that once appellant moved to the street, he attempted to further 

assault Francois, who testified that he was hiding. Thus, the 

commission of the assault necessarily arose out of different 

operative facts than those underlying the discharge offense. The 

trial court was correct in finding that a consecutive sentence for 

count 3 was mandated by the three strikes law.

III. Romero Motion to Strike Prior Strike Convictions

Appellant contends the trial court abused its discretion in 

refusing to strike his prior serious felony “strike” convictions. We 

find no abuse of discretion.

A. Background

Appellant filed a request to dismiss his prior strikes 

pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. The 

two strike convictions were for criminal threats (§ 422, subd. (a)) 

in 1996 and assault (§ 245) in 1997. He argued that other than 

his strike offenses, his prior convictions were “mostly a record of 

theft and drug abuse related misdemeanors,” except for a 

conviction for domestic violence (§ 273.5, subd. (a)). He also 

noted that his prior strikes were over 20 years old, the current 

offenses were non-violent except for the firearm enhancement on 

count two, and his “history indicates a presence of severe 

substance addiction and several mental health issues for which 
22

treatment is available and defendant is amenable.” 

The People opposed, noting appellant’s 13 prior convictions 

between 1990 and 2016, four of which were felonies. The 

prosecution argued that the age of appellant’s strike convictions 

was less material because in the intervening decades, appellant 

“has been convicted of charges in nine other cases, including two 

cases of felony domestic violence,” as well as “three DUIs, a theft 

conviction, [and] two convictions for battery.” 

At appellant’s sentencing hearing, the court acknowledged 

that the prior strikes were “somewhat remote” in time, but stated

that it had to consider appellant’s entire criminal history. That 

history included a 1990 misdemeanor conviction for unlawful 

possession of a weapon, a 1990 misdemeanor conviction for 

reckless driving, the prior strikes in 1996 and 1997, a 2004 

misdemeanor conviction for driving under the influence (DUI), a 

2004 misdemeanor conviction for battery, a 2007 misdemeanor 

conviction for driving without a license, a 2008 misdemeanor 

conviction for petty theft, a 2009 misdemeanor conviction for 

battery, a 2010 felony conviction for domestic violence,8 DUI 

misdemeanor convictions in 2013 and 2014, and a 2016 felony 

conviction for domestic violence, for which appellant was on 

probation at the time of instant offenses. In light of this 

8Appellant informed the court during trial that his 2010 

domestic violence conviction had been overturned on appeal. The 

court noted that the case was not included in the probation 

report. Appellant admitted only the 2016 conviction at trial for 

the purposes of counts four and five (possession with prior felony 

convictions). Appellant does not contend that the court 

erroneously relied on this conviction in denying his Romero

motion. 
23

“continuous history of criminal behavior, including violent 

offenses,” the court found that appellant was not outside the 

spirit of the three strikes law. 

The court agreed that there was “certainly some indication 

on the record of alcohol abuse,” but stated, “I don’t see any 

evidence of mental health issues present here. And I don’t think 

whatever the alcohol abuse that exists justifies the relief that 

[appellant is] requesting.” The court continued: “And, of course, 

I’m looking at circumstances of [the] particular offense where he 

has the perception where there’s a debt of about $900. And 

instead of dealing with that through the legal system or even 

going and speaking to the gentleman about the debt, he 

essentially goes to the location early in the morning verbally 

harassing the individuals there. And then obtains a firearm. 

Points it at the owner of the location and threatens him. And 

then, subsequently, shoots into the air one block away from an 

elementary school.” 

The court then stated: “Added on top of that is the fact that 

he chose to testify in this case. His testimony was completely not 

believable and the jury rejected it very quickly, so I think I have 

to take that into account as well. I don’t see any evidence of any 

remorse or any accountability.” The court concluded that 

“[b]ased upon the totality of factors, I don’t think [appellant] is

within that category of people who should be granted relief under 

Romero. So, the motion to strike the prior convictions is denied.” 

B. Legal framework

A trial court has discretion under section 1385, subdivision 

(a) to “strike or vacate an allegation or finding under the three 

strikes law that a defendant has previously been convicted of a 

serious and/or violent felony” in furtherance of justice. (People v. 
24

Carmony (2004) 33 Cal.4th 367, 373.) When evaluating whether 

a prior conviction should be stricken pursuant to Romero, a trial 

court must consider whether the defendant falls outside the 

“spirit” of the three strikes sentencing scheme by looking to the 

nature and circumstances of the present offense of conviction; the 

nature and circumstances of prior serious or violent felony 

convictions; and the particulars of the defendant’s background, 

character, and prospects. (People v. Williams (1998) 17 Cal.4th 

148, 161 (Williams).)

The three strikes law “creates a strong presumption that 

any sentence that conforms to [its] sentencing norms is both 

rational and proper.” (Carmony, supra, 33 Cal.4th at p. 378; see 

also People v. Myers (1999) 69 Cal.App.4th 305, 310 [“Where 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”].) 

We review for abuse of discretion a trial court’s decision not 

to dismiss a prior felony conviction allegation under section 1385. 

(Carmony, supra, 33 Cal.4th at p. 373.) In applying this 

deferential standard, we ask “whether the ruling in question 

‘falls outside the bounds of reason’ under the applicable law and 

the relevant facts.” (People v. Williams, supra, 17 Cal.4th at p. 

162, quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) 

“Because the circumstances must be ‘extraordinary . . . by which 

a career criminal can be deemed to fall outside the spirit of the 

very scheme within which he squarely falls once he commits a 

strike as part of a long and continuous criminal record, the 

continuation of which the law was meant to attack’ [citation], the 

circumstances where no reasonable people could disagree that 
25

the criminal falls outside the spirit of the three strikes scheme 

must be even more extraordinary.” (Carmony, supra, 33 Cal.4th

at p. 378.)

C. Analysis

The trial court did not abuse its discretion in denying 

appellant’s Romero motion. The court properly weighed and 

considered the evidence regarding appellant’s criminal history, 

the nature and circumstances of his current offenses, and the 

potentially mitigating factors of alcohol abuse and mental health 

issues. In particular, the court found that the remoteness of the 

prior strikes (also convictions for assault and criminal threats) 

was countered by appellant’s continuous criminal history 

following those convictions. Between 2004 and 2016, appellant 

suffered eight convictions, the last of which was a violent felony 

for which appellant was on probation at the time of the current 

offenses. We reject appellant’s contention that he had a “nonviolent and non-serious record.” The court was well within its 

discretion to conclude that appellant’s “continuous history of 

criminal behavior, including violent offenses,” over the past two 

decades brought appellant within the spirit of the three strikes 

law. (See People v. Leng (1999) 71 Cal.App.4th 1, 14 [“The wellrecognized purpose of the three strikes law is to provide increased 

punishment for current offenders who have previously committed 

violent or serious crimes and have therefore not been 

rehabilitated or deterred from further criminal activity as a 

result of their prior imprisonment.”]; see also Williams, supra, 17 

Cal.4th at p. 163 [finding that the defendant’s lengthy criminal 

history indicated that he “‘had been taught, through the 

application of formal sanction, that [such] criminal conduct was 

unacceptable—but had failed or refused to learn his lesson’”].)
26

The court also weighed heavily the circumstances of 

appellant’s current offenses. As the court explained, based on a 

disagreement over a $900 debt, appellant verbally harassed the 

auto shop employees, retrieved a gun, pointed it at Francois and 

threatened him. Appellant then fired his gun into the air on a 

public sidewalk, one block from an elementary school. In 

addition, the court considered the evidence of appellant’s history 

of alcohol abuse, but did not find it outweighed the other factors 

present. The court rejected the contention that appellant also 

suffered from mental health issues, finding that claim 

unsupported by the evidence. Appellant does not cite any 

evidence to the contrary.

Appellant argues that the court improperly relied on a 

finding that appellant’s trial testimony was not believable and 

was rejected by the jury. We are not persuaded that the trial 

court acted improperly. The court’s statements regarding 

appellant’s lack of credibility at trial were directly followed by the 

court’s finding that appellant lacked “any remorse or any 

accountability.” Appellant does not dispute that the court could 

properly consider a lack of remorse by appellant. (See People v. 

Bemore (2000) 22 Cal.4th 809, 854.) 

Moreover, the case cited by appellant, People v. Howard

(1993) 17 Cal.App.4th 999 (Howard), is inapposite. Howard did 

not involve a court’s discretion to reduce a sentence by striking a 

prior conviction. There, the court held that in order to impose an 

increased sentence on the ground the defendant committed 

perjury at trial, the trial court was required to make on-therecord findings as to all the elements of a perjury violation. (Id. 

at p. 1004.) 
27

In sum, appellant’s argument that the trial court should 

have weighed certain factors more heavily than others does not 

establish an abuse of discretion. Because the trial court properly 

“‘balanced the relevant facts and reached an impartial decision in 

conformity with the spirit of the law’” (Carmony, supra, 33 

Cal.4th at p. 378), its determination was not in error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.