Filed 7/24/24 P. v. Williams CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RODNEY WILLIAMS,

Defendant and Appellant.

 D083779

 (Super. Ct. No. FVI20003436)

APPEAL from a judgment of the Superior Court of San Bernardino

County, Kyle S. Brodie, Judge. Affirmed.

Shay Dinata-Hanson, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. 

Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys 

General, for Plaintiff and Respondent. 

A jury convicted Rodney Williams of attempted grand theft and seconddegree burglary. The trial court found Williams had a prior strike and 
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denied his motion to strike it. It sentenced Williams to four years for seconddegree burglary and stayed a two-year sentence for attempted grand theft. 

Williams first argues the court erred in failing to correctly exercise its 

discretion under Penal Code section 1385(c) to dismiss the prior strike. We 

conclude section 1385(c), which gives a trial court direction in exercising its

discretion to dismiss an “enhancement,” does not apply to prior strikes. 

Second, Williams argues we must remand for the trial court to consider its 

discretion under section 654(a) to impose and execute sentencing on the count 

with the shorter term and stay the longer term. We conclude the silent 

record does not show the court misunderstood its discretion; thus, Williams 

forfeited this issue by not raising it below. He further fails to meet his heavy 

burden on direct appeal to establish ineffective assistance of counsel. We 

thus affirm.

I.

A jury convicted Williams of attempted grand theft (§§ 487(a), 664; 

count 1) and second-degree burglary (§ 459; count 2). In a bifurcated trial, 

the court found true that Williams had a prior strike (§§ 211, 667(b)-(i), 

1170.12(a)-(d)) and three aggravating factors (§ 1170(b)(2)). 

The court subsequently denied Williams’ motion to strike his prior 

strike and sentenced him to a four-year prison term—double the middle 

term—for the second-degree burglary count. Having neglected to address the 

attempted grand theft count, the court held another sentencing hearing and 

imposed a term of two years—double the middle term—stayed pursuant to 

section 654(a). 
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II.

A.

Williams argues the trial court erred in failing to correctly exercise its 

discretion under section 1385(c) to strike his prior strike. His argument fails 

because section 1385(c) does not apply to prior strikes.

Section 1385(c) gives the trial court discretion to dismiss “an 

enhancement” if doing so furthers justice. (§ 1385(c).) The well-established 

“technical meaning” of “enhancement” under California Law is “an additional 

term of imprisonment added to the base term.” (People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497, 526-527 (Romero); Cal. Rules of Court, 

rule 4.405(5).) It is equally well-established that the Three Strikes law is an 

alternative sentencing scheme and not an enhancement. (Romero, at p. 527.) 

Because the plain language of section 1385(c) applies only to an 

“enhancement,” which the Three Strikes law is not, section 1385(c) is 

inapplicable. (People v. Burke (2023) 89 Cal.App.5th 237, 243 (Burke).) 

Williams challenges Burke’s interpretation of section 1385(c) on three 

main grounds, each of which we reject. 

First, Williams argues it “appears” the Legislature has not adopted the 

meaning of “enhancement” Burke found controlling because “enhancement” 

as used in the Three Strikes law appears to encompass a Three Strikes 

sentence.1 Specifically, the Three Strikes law states: (1) in the context of 

specifying its application to juvenile adjudications, “[a] prior juvenile 

adjudication constitutes a prior serious or violent felony conviction for 

purposes of sentence enhancement if it meets” certain listed criteria

(§§ 667(d)(3), 1170.12(b)(3)); and (2) “[f]or purposes of subdivisions (b) to (i), 

1 Williams also argues “enhancement” in section 1170.1 seems to 

encompass a Three Strikes sentence; however, we find this argument 

unconvincing given that section was repealed prior to Williams’ sentencing.
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inclusive, and in addition to any other enhancement or punishment 

provisions that apply, [certain sentencing requirements] apply if a defendant 

has one or more prior serious or violent felony convictions” (§ 667(e)). We 

decline to conclude the use of the term “enhancement” in the context of the 

Three Strikes law converts a Three Strikes sentence into an “enhancement” 

as that term is used in section 1385(c). Doing so would create a conflict 

between section 1385(c) and the Three Strikes law itself. Requiring a court to 

treat the fact that a prior conviction is over five years old as a mitigating 

circumstance under section 1385(c)(2)(H) would conflict with section 667(c)(3) 

of the Three Strikes law, which provides: “The length of time between the 

prior serious or violent felony conviction and the current felony conviction 

shall not affect the imposition of sentence.” (Italics added; see also

§ 1170.12(a)(3).) We do not presume the Legislature intended to repeal 

section 667(c)(3) when it enacted section 1385(c)(2)(H) and we decline to rely 

on the Legislature’s use of “enhancement” in section 667 to presume an intent

to depart from its well-established meaning when enacting section 1385(c). 

Second, Williams contends Burke’s interpretation renders portions of 

section 1385(c) surplusage, so such construction should be avoided. (Delaney 

v. Superior Court (1990) 50 Cal.3d 785, 799.) Specifically, section 1385(c)(1)

precludes a court from dismissing an enhancement where “prohibited by any 

initiative statute.” Because the only statutes of which Williams is aware—

Proposition 83, precluding striking One Strike allegations; and 

Proposition 115, precluding striking murder special circumstances—are 

alternative penalty provisions and “not enhancements in the sense of Burke,” 

he contends Burke’s construction makes section 1385(c)(1) surplusage. 

However, the legislative history shows the Legislature included that 

language to ensure the law “would never run afoul of any initiative 
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measures,” which could include future measures specific to enhancements. 

(People v. Olay (2023) 98 Cal.App.5th 60, 66, fn. 7 (Olay).)

Williams also contends Burke’s interpretation renders surplusage 

section 1385(c)(2)(G), which provides that one mitigating circumstance is

when a defendant “was a juvenile when they committed the current offense 

or any prior offenses, including criminal convictions and juvenile 

adjudications, that trigger the enhancement” at issue. (§ 1385(c)(2)(G), 

italics added.) According to Williams, this provision must apply to prior 

strikes because a juvenile adjudication “does not trigger any ‘enhancement’ in 

the narrow sense.” Olay rejected this argument and we join in its skepticism 

that “the Legislature would have expressed an intent to reject the wellestablished legal meaning of ‘enhancement’ in such a roundabout manner” 

through an oblique reference to juvenile adjudications as one of the relevant 

mitigating circumstances. (Olay, 98 Cal.App.5th at p. 67.) At best, the 

provision creates an ambiguity, which takes us to the legislative history and 

Williams’ third and final argument. 

Williams asserts Burke’s interpretation of “enhancement” is contrary to 

legislative intent. The comprehensive discussion of the legislative history in 

Olay convinces us otherwise. (Olay, 98 Cal.App.5th at pp. 67-69.) An 

analysis by the Assembly Committee on Public Safety “distinguished an 

‘enhancement’ from ‘an alternative penalty scheme’ like the Three Strikes 

law,” and stated, “in no uncertain terms, that ‘[t]he presumption created by 

this bill applies to enhancements [ ] but does not encompass alternative 

penalty schemes.’” (Id. at p. 67; Assem. Com. on Public Safety, Analysis of 

Sen. Bill No. 81 (2021-2022 Reg. Sess.), as amended Apr. 27, 2021, at pp. 5-6.) 

We agree with Olay that this history is an “unambiguous statement of the 

Legislature’s intent to adopt the legal meaning of enhancement for 
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section 1385, subdivision (c).” (Olay, at p. 67.) Williams contends otherwise, 

urging the statute was subsequently amended to add the oblique reference to 

juvenile adjudications as one of the relevant mitigating circumstances. As 

discussed above, we reject the contention that the Legislature intended to 

extend section 1385(c) to prior strikes in such a roundabout manner. 

We thus decline to depart from Burke’s and Olay’s well-reasoned 

conclusions that section 1385(c) does not apply to prior strikes.

B.

Williams argues remand is necessary for the trial court to consider its

discretion under section 654(a) to impose and execute the shorter sentence for 

attempted grand theft and stay the longer sentence for second-degree 

burglary. We conclude Williams (1) forfeited this challenge because the silent 

record does not show the court misunderstood its sentencing authority, and

(2) fails to meet his heavy burden on direct appeal to establish ineffective 

assistance of counsel. 

Section 654(a) previously required the court to impose and execute 

sentence on the count with the longest term and stay the shorter term. 

(Stats. 1997, ch. 410, § 1.) Assembly Bill 518 amended the statute to provide 

the trial court with “discretion to impose and execute the sentence of either

term, which could result in the trial court imposing and executing the shorter 

sentence rather than the longer sentence.” (People v. Mani (2022) 

74 Cal.App.5th 343, 379; see Stats. 2021, ch. 441, § 1.) The court here 

sentenced Williams after Assembly Bill 518’s effective date. 

1.

Williams argues “the court did not appear to consider its new 

discretion” to impose and execute the shorter sentence for attempted grand 

theft and stay execution of the longer sentence for second-degree burglary. 
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Acknowledging defense counsel did not raise this issue below, Williams urges

“this is not the type of ‘silent record’ from which this court must presume the 

trial court understood the scope of its discretion.” We disagree.

“[T]he forfeiture rule for alleged sentencing errors” is that “unless a 

party makes a contemporaneous objection,” that party “generally cannot 

challenge a court’s ruling for the first time on appeal.” (People v. McCullough

(2013) 56 Cal.4th 589, 594.) There is, however, “a narrow class of sentencing 

issues that are reviewable in the absence of a timely objection.” (People v. 

Leon (2016) 243 Cal.App.4th 1003, 1023.)

“Defendants are entitled to sentencing decisions made in the exercise of 

the ‘informed discretion’ of the sentencing court.” (People v. Belmontes (1983) 

34 Cal.3d 335, 348, fn. 8.) A court “unaware of the scope of its discretionary 

powers” cannot exercise informed discretion. (Ibid.) “Failure to exercise a 

discretion conferred and compelled by law constitutes a denial of a fair 

hearing and a deprivation of fundamental procedural rights, and thus 

requires reversal.” (People v. Penoli (1996) 46 Cal.App.4th 298, 306.) 

However, “in light of the presumption on a silent record that the trial court is 

aware of the applicable law, including statutory discretion at sentencing, we 

cannot presume error where the record does not establish on its face that the 

trial court misunderstood the scope of that discretion.” (People v. Gutierrez

(2009) 174 Cal.App.4th 515, 527.) The defendant must “‘affirmatively 

demonstrate that the trial court misunderstood its sentencing discretion.’” 

(People v. Lee (2017) 16 Cal.App.5th 861, 866 (Lee).)

Here, neither party mentioned Assembly Bill 518 in its sentencing brief 

or at the sentencing hearings. Probation recommended executing sentence on 

the second-degree burglary count and staying the sentence on the attempted 

grand theft count, without discussing the court’s discretion under Assembly 
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Bill 518. At the second sentencing hearing to address the attempted grand 

theft count, the court explained its inclination to sentence Williams to the 

middle term, doubled for the prior strike, and to stay that sentence under 

section 654(a). The court asked whether either party would like to be heard 

and both parties declined. 

Williams urges this record is ambiguous because “‘the trial court’s 

comments during sentencing raise serious doubts’ as to knowledge of its 

discretion.” (Quoting People v. Ochoa (2020) 53 Cal.App.5th 841, 853-854.) 

However, he only points to the court’s discussion of aggravating and 

mitigating factors in declining to impose the upper term over the middle term 

for the second-degree burglary conviction. Based on this, Williams argues 

“the record does not conclusively show that the court would not have chosen 

to” execute sentence for attempted grand theft and stay the sentence for 

second-degree burglary. Williams’ argument is misplaced because, while this 

may address whether remand would be futile, it does not indicate 

ambiguousness as to whether the court misunderstood its sentencing 

discretion under section 654(a). We thus conclude the record is silent, rather 

than ambiguous, on the court’s awareness and exercise of that discretion. 

Williams does not contend the trial court was required to affirmatively

explain its exercise of discretion under section 654(a) on the record. (Cf.

§ 1385(a) [requiring “a statement of a reason” when “[g]ranting relief under 

section 1385,” but not when denying relief; Cal. Rules of Court, rule 4.406(b)

[listing sentencing choices that generally require statement of reason].) As 

such, Williams has failed to “‘affirmatively demonstrate that the trial court 

misunderstood its sentencing discretion.’” (Lee, 16 Cal.App.5th at p. 866.)

In sum, on this silent record, we cannot conclude the court 

misapprehended, and thus failed to exercise, its sentencing discretion under 
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section 654(a). Accordingly, Williams forfeited his claim that the court failed 

to properly exercise its discretion to impose and execute the shorter sentence.

2.

Anticipating forfeiture, Williams claims his trial counsel’s failure to 

argue that the court should exercise its discretion under Assembly Bill 518 to 

stay the longer sentence deprived him of his constitutional right to effective 

assistance of counsel. We disagree. 

To establish ineffective assistance of counsel, the defendant must show 

both that: (1) “counsel’s representation fell below an objective standard of 

reasonableness . . . under prevailing professional norms,” and (2) “there is a 

reasonable probability”—one that “undermine[s] confidence in the 

outcome”—“that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” (Strickland v. Washington (1984) 

466 U.S. 668, 688, 694.) There is a strong presumption counsel acted 

reasonably, so, “[o]n direct appeal, a conviction will be reversed for ineffective 

assistance only if (1) the record affirmatively discloses counsel had no 

rational tactical purpose for the challenged act or omission, (2) counsel was 

asked for a reason and failed to provide one, or (3) there simply could be no 

satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

Williams claims there could be no tactical reason to not request a stay 

of the longer sentence. We, however, conclude Williams fails to establish his 

counsel’s performance was constitutionally deficient. The record is silent as 

to defense counsel’s reasons for not seeking a stay of the longer sentence, and 

thus it does not affirmatively disclose an absence of tactical purpose. (People 

v. Ledesma (1987) 43 Cal.3d 171, 218.) Williams therefore has not carried his 

burden of establishing that his counsel’s representation was objectively 

unreasonable, at least for purposes of direct appeal.
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Even if we assume the court was unaware of its sentencing discretion, 

Williams has not met his burden of showing it is reasonably probable the 

court would have stayed the longer sentence had his counsel so requested. 

Williams urges the court’s lenience in choosing the middle term over the 

prosecution’s request for the upper term shows the court would have further 

tailored his sentence by staying the longer term. Although the court showed 

leniency by imposing middle terms for both counts, it declined defense 

counsel’s request to impose the low term, finding the aggravating factors 

outweighed the mitigating factors, and further declined to strike the prior 

strike. On this record, Williams fails to establish any ineffective assistance of 

counsel prejudiced him. 

III.

We affirm the judgment. 

CASTILLO, J.

WE CONCUR:

BUCHANAN, Acting P. J.

KELETY, J.