Filed 3/28/22 P. v. Webb CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SCOTT WEBB,

Defendant and Appellant.

 H045312

 (Santa Clara County

 Super. Ct. No. C1642789)

A jury convicted defendant Scott Webb of mayhem (Pen. Code, § 203),1and 

assault with a deadly weapon (§ 245, subd. (a)(1)) and found that he had personally used 

a deadly weapon while committing the offenses (§ 12022, subd. (b)(1)), and that he had 

personally inflicted great bodily injury in the commission of the assault with a deadly 

weapon (§§ 12022.7, subd. (a), 1203, subd. (e)(3)). In a separate proceeding, the trial 

court found that Webb had suffered two prior strike convictions (§§ 667, subds. (b)-(i); 

1170.12), and a prior serious felony conviction (§ 667, subd. (a)).

On appeal, Webb asserts the trial court erred by restricting his expert’s testimony 

on witness identification, denying his motion to suppress the victim’s in-court 

identification, limiting defense counsel’s closing argument, refusing to give pinpoint jury 

instructions on witness identification and the definition of mayhem, and failing to instruct

the jury on battery with serious bodily injury as a lesser included offense of simple

1 All further statutory references are to the Penal Code.
2

mayhem. Webb also asserts there was not substantial evidence to support his conviction 

for mayhem, his New Mexico prior convictions do not qualify as strikes or serious 

felonies under California law, and the matter must be remanded for resentencing under 

Senate Bill No. 1393.

We agree that Webb is eligible for resentencing under Senate Bill No. 1393, and 

otherwise reject Webb’s claims on appeal. We will remand the matter for the trial court 

to exercise its discretion to strike the five-year serious felony enhancement under section 

667, subdivision (a)(1). (Sen. Bill No. 1393, ch. 1013, §§ 1, 2.)

I. STATEMENT OF THE FACTS AND CASE

In April 2016, G. met a man in a parking lot near G.’s apartment in San Jose who 

said his name was “Scotty” (Webb). Webb had a white four-door car with New Mexico 

license plates. The two took Webb’s car to G.’s apartment where they smoked 

methamphetamine. Webb told G. that he lived in his car and usually parked it in the 

VTA parking lot near G.’s apartment. Webb had an ex-wife and son who lived nearby. 

Webb offered to give G. a massage, during which G. fell asleep. When G. woke 

up, his cell phone was missing, and Webb was gone. G. looked for Webb for about two 

weeks and found him on May 7, 2016, sitting in his car in the VTA parking lot. G. went 

to talk to Webb in his car, and Webb told him that he had taken G.’s phone by accident.

Webb asked G. if there was anyone in his apartment and if G. had any drugs. The two 

went to G.’s apartment, and Webb asked him if he had a knife. G. and Webb started to 

smoke methamphetamine. 

G. agreed to let Webb give him a massage. Webb got on top of G., who was lying 

face-down, and started to massage him. After a while, Webb told G. that he needed to 

heat up the massage oil. Webb went into the kitchen, and G. could hear the microwave 

running. Webb came back from the kitchen and poured the jar of oil on him. G. felt pain 

in his arm; when he looked back, he saw Webb had stabbed him. Webb grabbed G. 
3

around his throat and cut G.’s forehead. Eventually, G. ran out of his apartment and to 

his neighbors’ residence for help.

G. had eight stab wounds to his left arm and face, stab wounds to his left chest, 

back, right hand, and right ear, as well as damage to one of his lungs and a broken rib.

Dr. Jonathan Lee was the plastic surgeon who repaired G.’s ear injury. Dr. Lee said that 

G.’s ear was almost completely transected, and the injury was severe and disfiguring. 

While G. was at the hospital being treated for his injuries, he talked to a police 

officer. G. reported to the officer that he had been stabbed by a man named “Scotty.” He 

told the officer that Scotty was in his 30s to 40s, six feet tall, white and had tattoos on his 

arms that went down to his elbows, as well as tattoos on his neck. G. also told the officer 

that Scotty slept in a white four-door car in the VTA parking lot near his apartment.

During the investigation, police showed G. photographs of men in an attempt to 

have G. identify his attacker. G. looked at two photo lineups without Webb’s picture and 

did not identify any of the men as his attacker. Subsequently, G. looked at a photo lineup 

with Webb’s picture and did not identify him as the attacker. Police showed G. two 

pictures of Webb from his Facebook page, and G. did not identify him. G. looked at 

another photo lineup that included Webb’s picture and he did not identify Webb. G. first 

identified Webb as his attacker at the preliminary hearing held in October 2016, and later 

at the trial. 

In G.’s apartment, police found two knives on the floor of G.’s bedroom. One of 

the knives was branded “Good Cook,” was bent, and had blood on the blade. The other 

knife was branded “Forever Sharp.” This knife was not damaged and did not have blood 

on the blade or handle. Only G.’s DNA was on the “Good Cook” knife, whereas Webb’s 

DNA was found on the handle of the “Forever Sharp” knife. 

Webb’s former sister-in-law, R., said that her sister and Webb had a son, and in 

May 2016, Webb was homeless. R. said that her sister had been living very close to the 

VTA station where Webb slept in his car.
4

Webb was arrested on June 24, 2016, as he was walking toward the driver’s side 

of a white four-door car with New Mexico license plates in south San Jose. Webb was

six feet one inch tall, about 180 pounds, and had tattoos on his arms down to his elbows. 

Webb was charged by information with aggravated mayhem—count 1 (§ 203),

and assault with a deadly weapon—count 2 (§ 245, subd. (a)(1)). The information also 

alleged that Webb personally used a deadly weapon in the commission of both offenses 

(§ 12022, subd. (b)(1)). Regarding count 2, the information alleged that Webb personally 

inflicted great bodily injury. (§§ 12022.7, subd. (a), 1203, subd. (e)(3).) Finally, the 

information alleged that Webb had suffered two prior strike convictions and a conviction 

for a prior serious felony. (§§ 667, subd. (a), 667 subds. (b)-(i), 1170.12.) 

Webb’s case proceeded to jury trial. Webb’s defense was that he did not commit 

the crimes, and G. had falsely identified him. Webb offered Dr. Kathy Pezdek as an 

expert in eyewitness identification. Over the objection of defense counsel, the trial court 

limited Dr. Pezdek’s testimony to factors affecting the accuracy of eyewitness 

identification. Dr. Pezdek testified regarding various issues relevant to the accuracy of 

eyewitness identification. She stated that memory does not function “like a video 

camera” and decreases over time. She described certain factors affecting memory,

including the amount of time someone is exposed to a person or event, lighting, and 

suggestions after the event. Dr. Pezdek indicated that if a person is initially unsure of an 

identification, but over time becomes more confident, the increase in certainty is an 

indication that “there was confirming feedback along the way.” She stated that there is 

no relationship between a witness’s confidence in his identification and the accuracy of 

the identification. 

Following the presentation of evidence, the trial court granted Webb’s section 

1118.1 motion in part, finding there was insufficient evidence to support a conviction for 

aggravated mayhem (§ 205). The prosecutor amended the information to charge simple 

mayhem (§ 203) in count one, with the personal use of a knife (§ 12022, subd. (b)(1)). 
5

Webb was found guilty as charged, and all of the additional allegations in the 

information were found true. In a bifurcated proceeding, the trial court found that Webb 

had been convicted of two prior strikes (§§ 667, subds. (b)-(i); 1170.12) based on 

evidence of his prior convictions from New Mexico for armed robbery and for 

aggravated battery with a deadly weapon. The court also found he had been convicted of 

a prior serious felony for the armed robbery (§ 667, subd. (a)) but found not true the 

allegation that Webb had been convicted of a serious felony for aggravated battery as it 

was not tried separately from the armed robbery conviction. 

The trial court granted Webb’s Romero2 motion and dismissed one of his strike 

convictions. Webb was sentenced to state prison for an aggregate term of 22 years

consisting of the following: eight years doubled to 16 years under section 667, 

subdivision (e) for the mayhem conviction in count 1 (§ 203), plus one year consecutive

for the personal use of a deadly weapon in the commission of the crime (§ 12022, subd. 

(b)(1)), and five years to be served consecutive under section 667, subdivision (c). The 

court imposed four years doubled to eight years under section 667, subdivision (e) for the 

assault with a deadly weapon conviction in count 2 (§ 245, subd. (a)(1)), three years for 

inflicting great bodily injury (§ 12022.7, subd. (a)) and stayed one year for the personal 

use of a deadly weapon (§ 12022, subd. (b)(1)). The sentence imposed for count 2 was

stayed pursuant to section 654. 

Webb filed a timely notice of appeal.

II. DISCUSSION

A. Restriction of Defense Expert’s Testimony on Witness Identification

Webb first asserts that the trial court abused its discretion by limiting the expert 

testimony of Dr. Pezdek regarding eyewitness identification more stringently than 

required by the California Supreme Court in People v. McDonald (1984) 37 Cal.3d 351 

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
6

(McDonald) (overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 

914). Specifically, he asserts that the trial court erred when it excluded the expert’s 

testimony regarding the particular circumstances of G.’s identification of Webb as his 

attacker, and her opinion that G.’s identification was unreliable. Webb argues the trial 

court’s restriction of Dr. Pezdek’s testimony violated his rights to due process, a fair trial, 

and his right to present a defense. Applying the abuse of discretion standard elucidated in 

McDonald, we find no error. (Id. at p. 355.)

Dr. Pezdek was permitted to testify about the various factors relevant to the 

accuracy of eyewitness testimony in general, including the witness’s familiarity with the 

person identified, the amount of time the witness was exposed to the person, the witness’s

distance from the person and the lighting at the scene. Dr. Pezdek also testified about the 

significance of same-race identification, post-event suggestion, and the inherent 

suggestiveness of in-court identification. Over the objection of defense counsel, the trial 

court excluded Dr. Pezdek’s opinion that G.’s failure to identify Webb as his attacker in 

the first photographic lineup signified that Webb was not the perpetrator. Dr. Pezdek was 

also not permitted to opine that G. had a good look at the perpetrator because the two had 

been in close physical contact before the stabbing, the attack occurred in a well-lighted 

apartment, the photographic lineup that was shown to G. on June 22, 2016 could have 

suggestively influenced G., and G.’s identification of Webb at the preliminary hearing 

and at trial was unreliable. 

In McDonald, the California Supreme Court concluded that the trial court erred 

when it excluded the defense expert’s testimony concerning the psychological factors that 

can affect eyewitness identification. (McDonald, supra, 37 Cal.3d at p. 369.) Six 

eyewitnesses identified the defendant as the perpetrator, and one witness unequivocally 

said that the defendant was not the perpetrator. The defendant produced six alibi 

witnesses who said he was out of the state when the crime occurred. (Id. at pp. 355-360.) 

The defendant wanted to introduce testimony from an expert on eyewitness 
7

identification; however, the trial court ruled that the proposed testimony was 

inadmissible. (Id. at pp. 361-363.)

In finding that the trial court erred when it excluded the expert testimony offered 

by the defendant, the Supreme Court reasoned that in certain cases, expert testimony 

regarding the accuracy of eyewitness identification could be helpful because that 

information might be beyond the common experience of jurors. (McDonald, supra, 37 

Cal.3d at pp. 361-363.) The court noted that the accuracy of the eyewitnesses’ testimony 

was critical to the prosecution and the proposed expert testimony could have assisted the 

jury in resolving the uncertainty of the identifications. In addition, the veracity of the 

eyewitness testimony was the basis of the defense. (Id. at pp. 373-376.) The court found

the trial court’s exclusion of the testimony was prejudicial to the defendant because there 

was no other direct or circumstantial evidence linking the defendant to the crime, there 

were weaknesses in the eyewitnesses’ testimony that the expert could have exposed, and 

there were witnesses who provided the defendant an alibi. (Id. at p. 376.)

Webb relies on language in McDonald that “[t]he expert testimony in question 

does not seek to take over the jury’s task of judging credibility: as explained above, it 

does not tell the jury that any particular witness is or is not truthful or accurate in his 

identification of the defendant. Rather, it informs the jury of certain factors that may 

affect such an identification in a typical case; and to the extent that it may refer to the 

particular circumstances of the identification before the jury, such testimony is limited to 

explaining the potential effects of those circumstances on the powers of observation and 

recollection of a typical eyewitness.” (McDonald, supra, 37 Cal.3d at pp. 370-371.) 

From this he argues the trial court abused its discretion when it would not allow the 

testimony of the expert applying the factors affecting the accuracy of eyewitness 

identification to the particular circumstances of G.’s identification of Webb, asserting that 

“McDonald only purports to prevent eyewitness experts from testifying ‘that any 
8

particular witness is or is not truthful or accurate in his identification of the defendant.’ 

McDonald, 37 Cal.3d at 370.” 

While we agree that McDonald does permit the admission of opinion evidence

referencing the particular circumstances of an identification, it does not compel the 

introduction of such evidence or persuade us that the trial court erred by excluding the 

expert’s testimony here. The McDonald court noted that the trial court has broad 

discretion to admit or exclude expert testimony on witness identification, stating: “ ‘[W]e 

do not intend to “open the gates” to a flood of expert evidence on the subject.’ ” 

(McDonald, supra, 37 Cal.3d at p. 377.) The court further stated that “such evidence will 

not often be needed, and in the usual case the appellate court will continue to defer to the 

trial court’s discretion in this matter.” (Ibid., fn. omitted.)

In People v. Sanders (1995) 11 Cal.4th 475, 509 (Sanders), the Supreme Court 

reaffirmed McDonald but found its facts distinguishable. Concluding that the trial court 

had properly exercised its discretion to exclude the eyewitness identification expert

testimony, the court noted that there was incriminating circumstantial evidence 

corroborating the eyewitnesses’ identifications, and that the eyewitnesses’ testimony in 

Sanders was not the only evidence that the defendant had committed the crime. 

(Sanders, supra, 11 Cal.4th at pp. 509-510.) The Sanders court further opined that if the 

trial court did err in excluding the expert testimony, the error was harmless because the 

eyewitnesses were cross-examined about the accuracy and reliability of their 

identifications, defense counsel emphasized the factors that tended to undermine the 

accuracy and reliability of the identifications in closing argument, the identifications were 

corroborated, and the defendant offered no alibi. (Id. at p. 510.)

Finding this case similar to Sanders, we conclude that the trial court did not abuse 

its discretion here. Further, the exclusion of a portion of Dr. Pezdek’s proffered

testimony did not violate Webb’s rights to due process or to present a defense. The trial 

court did not wholly preclude Dr. Pezdek’s testimony as the trial court did in McDonald, 
9

but allowed the expert to describe various factors that could influence the accuracy of 

witness identification. Dr. Pezdek thus provided general information about eyewitness 

identification that could have been beyond the jury’s common experience. (See

McDonald, supra, 37 Cal.3d at p. 369.) With the framework to critique the limitations of 

eyewitness testimony that Dr. Pezdek provided, the jury was able to assess the accuracy 

of G.’s identification of Webb. Defense counsel vigorously cross-examined G. about his 

observation of his attacker and his ultimate identification of Webb as that person. This 

cross-examination provided the jury with the opportunity to assess G.’s credibility,

informed as well by Dr. Pezdek’s testimony. Defense counsel also argued extensively 

during closing argument that G.’s identification of Webb was the result of post-event 

suggestibility. On this record, we determine that the court did not preclude Webb from 

presenting and arguing his defense of mistaken identification.

Even assuming the trial court did err in excluding portions of Dr. Pezdek’s 

testimony, we find the error would be harmless. As in Sanders, here, there was 

incriminating evidence that Webb committed the attack. This evidence corroborated G.’s 

identification of Webb and gave it independent reliability. (See Sanders, supra, 11 

Cal.4th at pp. 509-510.) Specifically, G. described his attacker to the police as a person

named “Scotty,” who was a white male around six feet tall, with tattoos on his arms that 

went only to his elbows. G. also told police that the attacker drove a four-door white car 

with New Mexico license plates and had an ex-wife and son who lived not far from G. 

This information was consistent with Webb’s name, his physical appearance, his tattoos, 

the car he drove, and the location of Webb’s family members. While Webb’s DNA was 

not found on the bloody and bent knife found in G.’s bedroom, his DNA was located on a 

knife found on the bedroom floor adjacent to it, thus further corroborating G.’s testimony 

that Webb was in his apartment. As in Sanders, Webb presented no alibi defense. Given 

the additional evidence presented at trial indicating that Webb was the perpetrator of the 

attack on G., we find it is not reasonably probable that Webb would have received a more 
10

favorable verdict had the expert testimony not been limited. (People v. Watson (1956) 46 

Cal.2d 818, 836-837 (Watson).)

B. Motion to Suppress Victim’s In-Court Identification

Webb next asserts the trial court erred when it denied his motion to exclude G.’s 

in-court identification of him. He argues the identification was tainted because the police 

showed G. impermissibly suggestive photographic lineups and single images of Webb

during the investigation.

An identification procedure is unfair if it “suggests in advance of identification by 

the witness the identity of the person suspected by the police.” (People v. Slutts (1968) 

259 Cal.App.2d 886, 891.) Admission of eyewitness identification evidence may violate 

a defendant’s constitutional due process rights if the identification procedures were 

“unnecessarily suggestive and conducive to irreparable mistaken identification . . . .”

(Stovall v. Denno (1967) 388 U.S. 293, 302.) 

In People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 746 the 

California Supreme Court reiterated the test from People v. Cunningham (2001) 25 

Cal.4th 926 (Cunningham), to determine if the admission of identification evidence 

violates due process. “ ‘[W]e consider (1) whether the identification procedure was 

unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was 

nevertheless reliable under the totality of the circumstances, taking into account such 

factors as the opportunity of the witness to view the suspect at the time of the offense, the 

witness’s degree of attention at the time of the offense, the accuracy of his or her prior 

description of the suspect, the level of certainty demonstrated at the time of the 

identification, and the lapse of time between the offense and the identification.’ 

[Citations.]” Citing People v. Lemcke (2021) 11 Cal.5th 644, 665 the Supreme Court 

noted: “[t]here is [now] near unanimity in the empirical research that “ ‘ “under most 

circumstances, witness confidence or certainty is not a good indicator of identification 

accuracy.” ’ ” (Holmes, at p. 746.)
11

In determining whether an identification procedure is unduly suggestive, “[t]he 

question is whether anything caused defendant to ‘stand out’ from the others in a way 

that would suggest the witness should select him [or her].” (People v. Carpenter (1997) 

15 Cal.4th 312, 367, abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th 

1176.) “The defendant bears the burden of demonstrating the existence of an unreliable 

identification procedure.” (Cunningham, supra, 25 Cal.4th at p. 989.) Whether an 

identification procedure is “unduly suggestive” for due process purposes is a mixed 

question of law and fact that we review de novo. (People v. Kennedy (2005) 36 Cal.4th 

595, 608-609.) If the defendant fails to meet his or her initial burden of demonstrating 

that the identification procedure was unduly suggestive, we “need not reach the question 

‘whether the identification was nevertheless reliable under the totality of circumstances.’ 

[Citations and fn. omitted.]” (People v. Carter (2005) 36 Cal.4th 1114, 1164.)

Here, G. participated in a number of identification procedures with detectives

during the investigation. In May 2016, G. looked at two different photo lineups that did 

not include Webb’s picture, and he did not identify any of the men as his attacker. In 

June 2016, G. looked at a photo lineup that included Webb’s picture, and he did not 

identify Webb as his attacker. G. was then shown two pictures of Webb from Webb’s 

Facebook page and did not identify him. G. looked at another photo lineup that included 

Webb’s picture and did not identify him as the attacker. Later on the same day, G. was 

shown pictures of Webb’s tattoos and could not positively identify them. The day after 

looking at the pictures of the tattoos, G. called Detective Palmer to say that he had 

changed his mind about the tattoos and thought the man in the pictures might be his 

attacker. G. positively identified Webb as his attacker at the preliminary hearing held in 

October 2016, and later at the trial. 

Webb asserts the identification procedures were unduly suggestive because G. was 

shown photo displays that included Webb’s face several times before the in-court 

identification, was shown individual photographs of Webb and his tattoos during the 
12

investigation and saw Webb in jail clothing and shackles in a court proceeding prior to 

the preliminary examination where G. first positively identified Webb. He asserts that 

when law enforcement shows a single person photo of a suspect to a crime victim, the 

individual in the photo is inevitably highlighted as the likely perpetrator of the offense. 

Apart from the seriatim displays of the images that Webb alleges impermissibly 

influenced G’s in-court identification, Webb does not identify any statements or actions 

of the detectives showing the various images that suggested a positive identification of 

Webb.

We do not find support in case authorities for Webb’s assertion that the in-court 

identification was impermissibly tainted by his prior exposure to images. In People v. 

Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa), the California Supreme Court held that the 

use of a single-person photographic identification is not inherently unfair or 

impermissibly suggestive. In addition, “[s]howing the witnesses a single photo of the 

defendant is no more impermissibly suggestive than an in-court identification with the 

defendant personally sitting at the defense counsel table in the courtroom.” (People v. 

Yonko (1987) 196 Cal.App.3d 1005, 1008-1009.) “A single person photograph is 

analogous to a single person showup that ‘may pose a danger of suggestiveness, but such 

lineups or showups are not necessarily or inherently unfair.’ ” (People v. Chavez (2018) 

22 Cal.App.5th 663, 674.) A single person showup procedure is considered unfair when 

it is not neutral and unnecessarily suggeststo the witness in advance the identity of the 

person suspected by the police. (People v. Yeoman (2003) 31 Cal.4th 93, 123-124; 

Ochoa, at pp. 412-413.) There is no due process violation if the challenged identification 

procedure is not impermissibly suggestive. (Ochoa, at p. 412.)

We conclude the detective’s presentation of single pictures of Webb and his 

tattoos in this case was not unduly suggestive. Before showing G. the individual images 

of Webb, G. viewed two different photo lineups that did not include Webb and made no 

identification of his assailant. After he was shown the Facebook page images of Webb, 
13

G. was shown a lineup that included Webb, and made no identification of his assailant. 

We do not agree that it follows that G. identified Webb at the preliminary examination 

because he had previously seen photos of Webb. Further, there is nothing in the record 

demonstrating that law enforcement did more than present the arrays of photos and the 

individual images of Webb in a neutral way to G. Although G. saw a cumulation of 

photos over time, there is no evidence that the police accompanied any of the photo 

lineups or individual photos with statements or actions that indicated that Webb was G.’s 

assailant. Nor do we perceive any constitutional violation simply because law 

enforcement presents various photos at different times to a victim. We agree with the 

trial court that Webb did not meet his burden of showing “any of the prior 

identification[s] to be so impermissibly suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification.”

However, even assuming the procedures were unduly suggestive, G.’s in-court 

identification of Webb was reliable under the totality of circumstances. (Cunningham, 

supra, 25 Cal.4th at p. 989.) Although the in-court identification occurred six months 

after the attack, and was not fresh in time, the remaining factors as set forth in 

Cunningham support a finding of reliability of that identification. Specifically, G. had a 

significant opportunity to view Webb’s face when he saw him in the parking lot and 

when the two were in G.’s apartment immediately prior to the attack. G. said that he saw 

the attacker’s face just prior to being stabbed. After the attack, G. described the attacker 

to the police as a white male who was about six feet tall, named “Scotty” with tattoos on 

his arms and very rough hands. G. said that his attacker had an ex-wife and a son who 

lived near his apartment, and he drove a white four-door car with New Mexico license 

plates. These facts were consistent with Webb’s characteristics. 

We thus conclude the trial court did not err in denying Webb’s motion to suppress 

G.’s in-court identification. But even if the court did err, we find the error would be

harmless. As stated in Section A., ante, given the additional evidence presented at trial 
14

that Webb was G.’s assailant, it is not reasonably probable that Webb would have 

received a more favorable verdict had the trial court granted Webb’s motion to suppress 

the in-court identification. (Watson, supra, 46 Cal.2d at pp. 836-837.)

C. Limitation of Defense Counsel’s Closing Argument

Webb argues the trial court’s denial of defense counsel’s request to argue to the 

jury in closing that Webb did not confess to the crimes of which he was being charged

was prejudicial per se and requires reversal. When it ruled that defense counsel could not 

argue that Webb did not confess to the attack on G., the trial court stated: “If there was 

an interview and Mr. Webb did not confess in that interview, then that would be the state 

of the evidence that the Defense could properly argue. The context of the situation, 

however, is that there was an invocation of Mr. Webb’s Fifth Amendment right as he is 

entitled to do so. And the officer respected that invocation, as the officer was required to.

Therefore, there was no opportunity for the officer to talk further. Under those 

circumstances, the Court believes that the argument that there was no confession would 

not be appropriate. The Defense is not precluded from arguing the lack of evidence in 

this case. The ruling is only limited to pinpointing, among the lack of evidence, 

pinpointing to the lack of a confession. So that will be the Court’s ruling.”

Webb cites In re William F. (1974) 11 Cal.3d 249, 253-256 (William F.), for the 

proposition that a court’s limitation of closing argument is a violation of his 

constitutional right to the assistance of counsel, due process, and to present a defense, and 

is therefore prejudicial per se. In William F., the juvenile court precluded counsel for the 

minor from presenting a closing argument at the conclusion of the jurisdictional hearing. 

(Id. at p. 253.) The California Supreme Court found that the juvenile court’s refusal to 

allow the minor’s counsel to present closing argument violated the minor’s constitutional 

rights, was prejudicial per se, and reversed the judgment. (Id. at p. 255.) But we 

conclude that Webb’s reliance on William F. is misplaced, because here, unlike in

William F., the trial court did not preclude defense counsel from presenting any closing 
15

argument at all and did not prevent counsel from arguing about evidence presented at trial 

that was relevant to the defense theory of mistaken identity. We see no basis for finding 

a constitutional violation that resulted in per se prejudice.

We are also persuaded that the trial court has the responsibility to exercise its 

discretion to prevent improper argument by the parties, including attempts to present 

factually unsubstantiated contentionsto a jury. (People v. Ponce (1996) 44 Cal.App.4th 

1380, 1387-1389.) In exercising its discretion under section 1044, which allows the court 

to control the process of a criminal trial, the court must be impartial and must assure that 

a defendant is afforded a fair trial. When there is no patent abuse of discretion, a trial 

court’s determinations under section 1044 must be upheld on appeal. (People v. Cline 

(1998) 60 Cal.App.4th 1327, 1334.) 

We determine the trial court did not abuse its discretion in prohibiting defense 

counsel from arguing that Webb did not confess to the crimes. Webb asserted his right 

against self-incrimination under the Fifth Amendment when the police attempted to 

interview him, and as required by law, the police terminated their interview of him. The 

fact that an abbreviated police interview took place was not in evidence. We agree with 

the attorney general that defense counsel’s argument that Webb did not confess would 

have improperly referenced the fact of the police interview which was not before the jury.

However, assuming the trial court’s limitation of defense counsel’s closing 

argument was an abuse of discretion, we find the error would be harmless for the reasons

stated in Section A., ante. and conclude it is not reasonably probable that Webb would 

have received a more favorable verdict had defense counsel been permitted to argue to 

the jury that Webb did not confess to the crimes. (Watson, supra, 46 Cal.2d at pp. 836-

837.) 

D. Pinpoint Instruction on Witness Identification

Webb next contends that the trial court erred when it denied Webb’s request to 

provide a pinpoint jury instruction on witness identification. The proposed instruction 
16

read: “You are instructed that the identity of the Defendant as the person who committed 

the crime is an element of every crime. Therefore, the burden is on the State to prove

beyond a reasonable doubt not only that the crime alleged was committed, but also that 

the Defendant was the one who committed it. You must be satisfied beyond a reasonable 

doubt of the accuracy of the witness’[s] identification of the Defendant. In this regard, 

you are instructed that it is not necessary for the Defendant to prove that another person 

may have committed the crime nor is it the burden of the Defendant to prove his 

innocence. If facts and circumstances have been introduced into evidence which raise a 

reasonable doubt as to whether the Defendant was the person who committed the crime 

charged, then you should find the Defendant not guilty of that offense.” 

The trial court must instruct the jury on general principles “ ‘ “closely and openly 

connected to the facts and that are necessary for the jury’s understanding of the case” ’ ” 

including those instructions that “pinpoint” a defense theory. (People v. Hovarter (2008) 

44 Cal.4th 983 (Hovarter).) Pinpoint instructions are not warranted, however, when they 

are argumentative, such as when requested only to highlight particular evidence. (People 

v. Hughes (2002) 27 Cal.4th 287, 361.) The court may decline to give a pinpoint 

instruction if the proposed instruction is duplicative of other instructions given. 

(Hovarter, at p. 1021.) 
17

Here, in refusing to give Webb’s proposed pinpoint instruction, the trial court 

found that it was argumentative and duplicative of CALCRIM Nos. 3153and 1054, which

adequately instructed the jury about what factors to consider in evaluating the strength of 

a witness’s identification of a suspect, and the reliability of a witness’s testimony at trial. 

We agree. Although it would have been within the trial court’s discretion to give the 

proffered pinpoint instruction, CALCRIM Nos. 315 and 105, coupled with CALCRIM 

3 The CALCRIM No. 315 instruction given in this case states: “You have heard 

eyewitness testimony identifying the defendant. As with any other witness, you must 

decide whether an eyewitness gave truthful and accurate testimony. In evaluating 

identification testimony, consider the following questions: Did the witness know or have 

contact with the defendant before the event? How well could the witness see the 

perpetrator? What were the circumstances affecting the witness’s ability to observe, such 

as lighting, weather conditions, obstructions, distance, and duration of observation? How 

closely was the witness paying attention? Was the witness under stress when he or she 

made the observation? Did the witness give a description and how does that description 

compare to the defendant? How much time passed between the event and the time when 

the witness identified the defendant? Was the witness asked to pick the perpetrator out of 

a group? Did the witness ever fail to identify the defendant? Did the witness ever 

change his or her mind about the identification? How certain was the witness when he or 

she made an identification? Are the witness and the defendant of different races? Was 

the witness able to identify the defendant in a photographic or physical lineup? Were 

there any other circumstances affecting the witness’s ability to make an accurate 

identification? The People have the burden of proving beyond a reasonable doubt that it 

was the defendant who committed the crime. If the People have not met this burden, you 

must find the defendant not guilty.”

4 The CALCRIM No. 105 instruction given in this case states: “In evaluating a 

witness’s testimony, you may consider anything that reasonably tends to prove or 

disprove the truth or accuracy of that testimony. Among the factors that you may 

consider are: How well could the witness see, hear, or otherwise perceive the things 

about which the witness testified? How well was the witness able to remember and 

describe what happened? What was the witness’s behavior while testifying? Did the 

witness understand the questions and answer them directly? Was the witness’s testimony 

influenced by a factor such as bias or prejudice, a personal relationship with someone 

involved in the case, or a personal interest is how the case is decided? What was the 

witness’s attitude about the case or about testifying? Did the witness make a statement in 

the past that is consistent or inconsistent with his or her testimony? How reasonable is 

the testimony when you consider all the other evidence in the case? Did other evidence 

prove or disprove any fact about which the witness testified?” 
18

No. 103, which defines the standard for reasonable doubt, informed the jury that the 

prosecution was required to prove that Webb was the person who committed the crimes 

in this case. The given instructions also informed the jury of all of the applicable 

considerations when evaluating a witness’s trial testimony and identification of a suspect. 

The content of the pinpoint instruction was adequately conveyed to the jury through 

CALCRIM Nos. 103, 105 and 315, and as a result, the trial court acted within the bounds 

of its discretion when it concluded the instruction would have been duplicative. The trial 

court did not err in denying Webb’s request to give the pinpoint instruction on witness 

identification. (See Hovarter,supra, 44 Cal.4th at p. 1021.) 

E. Instruction on Battery with Serious Bodily Injury as a Lesser Included 

Offense of Simple Mayhem

Webb asserts the trial court had a sua sponte duty to instruct the jury on battery 

with serious bodily injury5as a lesser included offense of simple mayhem.

A trial court must instruct the jury sua sponte on a lesser included offense only if 

there is substantial evidence, “ ‘that is, evidence that a reasonable jury could find 

persuasive’ ” [citation], which, if accepted, “ ‘would absolve [the] defendant from guilt of 

the greater offense’ [citation] but not the lesser.” ’ ” (People v. Licas (2007) 41 Cal.4th 

362, 366 (Licas).) “ ‘[A] lesser offense is necessarily included in a greater offense if 

either the statutory elements of the greater offense, or the facts actually alleged in the 

accusatory pleading, include all the elements of the lesser offense, such that the greater 

cannot be committed without also committing the lesser.’ ” (Id. at p. 366; see People v. 

Hicks (2017) 4 Cal.5th 203, 208-209 (Hicks).) “If a lesser offense shares some common 

elements with the greater offense, or if it arises out of the same criminal course of 

5 Battery with serious bodily injury is battery that causes “a serious impairment of 

physical condition, including, but not limited to, the following: loss of consciousness; 

concussion; bone fracture; protracted loss or impairment of function of any bodily 

member or organ; a wound requiring extensive suturing; and serious disfigurement.” 

(§ 243, subd. (f)(4).) 
19

conduct as the greater offense, but it has one or more elements that are not elements of 

the greater offense as alleged, then it is a lesser related offense, not a necessarily included 

offense.” (Hicks, at p. 209.) “ ‘We apply the independent or de novo standard of review 

to the failure by the trial court to instruct on an assertedly lesser included offense.’ ” 

(Licas, at p. 366.)

Here, the trial court granted Webb’s section 1118.1 motion, finding there was 

insufficient evidence presented at trial to support a conviction of aggravated mayhem 

(§ 205), as charged in count 1. However, the trial court commented that there was 

“sufficient evidence for [simple] mayhem or battery with serious bodily injury.” In 

response, the prosecutor moved to amend the information to allege simple mayhem in 

count 1, which is defined in section 203 as follows: “[e]very person who unlawfully and 

maliciously deprives a human being of a member of his body, or disables, disfigures, or 

renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, 

or lip, is guilty of mayhem.” 

Applying the principles described above under the de novo standard, we determine 

that the trial court had no sua sponte duty instruct the jury on battery with serious bodily 

injury as a lesser included offense to simply mayhem. Although courts have described 

the terms “serious bodily injury” and “great bodily injury” as the same in certain 

contexts, “the terms in fact ‘have separate and distinct statutory definitions.’ [Citation.] 

This distinction may make a difference when evaluating jury instructions that provide 

different definitions for the two terms.” (People v. Santana (2013) 56 Cal.4th 999, 1008-

1009; see People v. Poisson (2016) 246 Cal.App.4th 121, 125 [citing Santana and 

rejecting the proposition that the terms great bodily injury and serious bodily injury 

should be used “interchangeably”].) While great bodily injury is an element 

of mayhem (People v. Brown (2001) 91 Cal.App.4th 256, 272.), serious bodily injury is 

not. (Santana, at p. 1007.) Therefore, battery with serious bodily injury is not a lesser 

included offense to mayhem, and the trial court had no duty to provide the jury with any 
20

instruction related to that crime. The trial court had no sua sponte duty to instruct the 

jury on battery with serious bodily injury.

F. Substantial Evidence to Support Mayhem Conviction

Webb asserts there is not sufficient evidence to support his mayhem conviction 

because G.’s injuries do not fit within the definition of the crime as originally drafted in 

the Coventry Act of 1670.

When a defendant challenges the sufficiency of evidence on appeal, “we review 

the whole record in the light most favorable to the judgment below to determine whether 

it discloses substantial evidence—evidence that is reasonable, credible, and of solid 

value—such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt. [Citations.] A reviewing court must reverse a conviction where the 

record provides no discernible support for the verdict even when viewed in the light most 

favorable to the judgment below. [Citation.] Nonetheless, it is the jury, not the 

reviewing court, that must weigh the evidence, resolve conflicting inferences, and 

determine whether the prosecution established guilt beyond a reasonable doubt. 

[Citation.] And if the circumstances reasonably justify the trier of fact’s findings, the 

reviewing court’s view that the circumstances might also reasonably be reconciled with a 

contrary finding does not warrant reversal of the judgment.” (People v. Hubbard (2016) 

63 Cal.4th 378, 392.)

Penal Code section 203 defines simple mayhem as follows: ‘Every person who 

unlawfully and maliciously deprives a human being of a member of his body, or disables, 

disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits 

the nose, ear, or lip, is guilty of mayhem.” Webb’s argument rests on the proposition that 

the injury to G.’s ear does not qualify as a “slit” within the definition of the word in the 

1670s when the crime of mayhem was first codified. Webb cites A Copious Dictionary 

in Three Parts (1674), by Francis Gouldman, for the definition of “slit” as “to cleave or 

rive,” meaning to “cut into pieces.” Webb asserts that the definition of “slit” extant when 
21

the crime of mayhem was first drafted should apply to this case. Since G.’s ear was not 

completely severed from his head, or cut into pieces, Webb argues his injury is not a 

“slit,” and he cannot be convicted of the crime of mayhem.

In Santana, supra, the California Supreme Court considered the evolution of the 

mayhem statute from its inception. The court stated: “[t]hough section 203 contains 

‘verbal vestiges’ of the common law and the Coventry Act of 1670, ‘ “the modern 

rationale of the crime may be said to be the preservation of the natural completeness and 

normal appearance of the human face and body, and not, as originally, the preservation of 

the sovereign’s right to the effective military assistance of his subjects.” ’ (People v. 

Newble (1981) 120 Cal.App.3d 444, 451, 174 Cal.Rptr. 637; see [People v.] Keenan 

[(1991)] 227 Cal.App.3d [26], 34, 277 Cal.Rptr. 687 [describing cases that ‘have 

expanded mayhem to include acts not within the original definition of the crime’].) In 

other words, section 203 ‘protects the integrity of the victim’s person.’ (People v. 

Page (1980) 104 Cal.App.3d 569, 578, 163 Cal.Rptr. 839 (Page); see People v. 

Green (1976) 59 Cal.App.3d 1, 3, 130 Cal.Rptr. 318; see also Keenan, supra, 227 

Cal.App.3d at p. 34, 277 Cal.Rptr. 687 [recognizing cases as ‘practical and proper 

applications of an old statute to modern-day reality’].)” (Santana, supra, 56 Cal.4th at 

p. 1004.)

Consistent with the court’s reasoning in Santana, we conclude that the original 

definition of “slit” from 1670, which would require the assailant to cut the victim’s ear 

from the head or into pieces to commit the crime of mayhem, is too limited to capture the 

meaning of the offense of mayhem today. The noun “slit” is currently defined in the 

Merriam-Webster dictionary as “a long narrow opening.”6 The verb “slit” means to a: to 

6 Definition of slit, noun, Merriam-Webster Dictionary https://www.merriamwebster.com/dictionary/slit [as of March 25, 2022], archived at <https://perma.cc/C8MSM2U6>.
22

make a slit in; b: to cut off or away: SEVER; c: to form into a slit.”7 These modern 

definitions more accurately reflect the Santana court’s statement that section 203 is 

designed to protect “ ‘the integrity of the victim’s person,’ ” and the normal appearance 

and completeness of the person’s appearance. (Santana, supra, 56 Cal.4th at p. 1004.) 

We thus find their use appropriate.

Applying the modern meaning of the word “slit,” we find there is substantial

evidence supporting Webb’s conviction for mayhem. When Webb attacked G. with the 

knife, G.’s ear was almost completely transected and required surgical repair to reattach 

it. According to the surgeon who treated him, G. sustained a “very disfiguring injury.” 

There is no question that that G.’s ear was “slit” within the modern meaning of the word. 

Reversal of Webb’s conviction is not warranted because his conduct “did not fall within 

the ancient definition of mayhem.” (Keenan, supra, 227 Cal.App.3d at p. 34.) Sufficient 

evidence supports Webb’s conviction for mayhem under section 203.

G. Pinpoint Instruction on Mayhem

Webb argues the trial court had a sua sponte duty to give a pinpoint instruction on 

the legal definition of the word “slit,” because, according to Webb, it is not a word that is 

commonly understood. Webb suggests that the court should have instructed the jury that 

the word “slit” means to “cleave” or “rive” or “cut off or away” the ear.

The trial court has a sua sponte duty to instruct, including giving, amplifying or 

clarifying instructions where the term used in an instruction has a “ ‘particular and 

restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of 

law [citation].” (People v. Chaffin (2009) 173 Cal.App.4th 1348, 1351.) There is no 

duty to give a clarifying instruction if the term in the instruction has a plain and 

7 Definition of slit, verb, Merriam-Webster Dictionary https://www.merriamwebster.com/dictionary/slit [as of March 25, 2022], archived at <https://perma.cc/GX39-

RDTL>.
23

unambiguous meaning that is “ ‘commonly understood by those familiar with the English 

language . . . .’ ” (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872.)

Here, the trial court properly instructed the jury on the crime of mayhem using 

CALCRIM No. 801 as follows: “The defendant is charged in Count 1 with mayhem in 

violation of Penal Code section 203. [¶] To prove that the defendant is guilty of 

mayhem, the People must prove that the defendant unlawfully and maliciously: [¶] Slit 

someone’s ear. [¶] Someone acts maliciously when he or she intentionally does a 

wrongful act or when he or she acts with the unlawful intent to annoy or injury someone 

else. [¶] A disfiguring injury may be permanent even if it can be repaired by medical 

procedures.”

As discussed in Section F., ante, we reject Webb’s contention that the definition of 

“slit” from 1670 should apply to the contemporary crime of mayhem. We determine that 

the trial court had no sua sponte duty to instruct on a specialized definition of “slit,” as 

the word is commonly understood and needs no additional explanation.

H. Cumulative Error

Webb argues that the cumulative impact of the errors discussed above rendered the 

trial fundamentally unfair. As we have rejected each of Webb’s individual challenges, 

we find no basis for Webb’s separate claim of cumulative error. (People v. 

Watkins (2012) 55 Cal.4th 999, 1036.)

I. New Mexico Prior Convictions as Strikes

The trial court found Webb had been convicted of armed robbery and aggravated 

battery with a deadly weapon in New Mexico, and that these convictions qualified as 

both strike offenses (§§ 667, subds. (b)-(i); 1170.12), and prior serious felony convictions

(§ 667, subd. (a)), that could be used to enhance Webb’s sentence. Webb contends that 

there was insufficient evidence to sustain the sentence enhancements under section 667. 

An out-of-state or foreign conviction may be found to be a strike offense in 

California if the conviction “is for an offense that includes all of the elements of a 
24

particular felony as defined in subdivision (c) of [s]ection 667.5 or subdivision (c) of 

[s]ection 1192.7.” (§ 667, subd. (d)(2); see also § 1170.12, subd. (b)(2).) Thus, “[a] 

defendant whose prior conviction was suffered in another jurisdiction is . . . subject to the 

same punishment as a person previously convicted of an offense involving the same 

conduct in California.” (People v. Myers (1993) 5 Cal.4th 1193, 1201 (Myers).)

To determine whether a prior conviction from another state contains all of the 

elements of the California felony, the trier of fact may not look outside the record of 

conviction. The court may consider any evidence in the record of conviction “if not 

precluded by the rules of evidence or other statutory limitation.” (Myers, supra, 5 Cal.4th 

at p. 1201.) If the record does not disclose any of the facts of the offense actually 

committed, the court will presume the prior conviction was for the least offense 

punishable under the law of that jurisdiction. (People v. Guerrero (1988) 44 Cal.3d 343, 

355.)

1. Armed Robbery

The prosecution provided the record of conviction of the New Mexico priors. 

These documents included the April 9, 2009 criminal information, the judgment, the plea 

and disposition form, and two copies of CLETS printouts containing Webb’s criminal 

record. The April 9, 2009 criminal information alleged in Count 1 that Webb committed 

the crime of armed robbery as follows: “[O]n or about February 20, 2009, the abovenamed defendant took papers and currency from Pete Casen by the use of force or threats 

of force while armed with a knife, a second degree felony, contrary to Section 30-28-2 

and Section 30-16-2, NMSA 1978.” In Count 2 it alleged that he committed 

“Aggravated Battery (Deadly Weapon) . . . did touch or apply force to the person of Pete 

Casen with a deadly weapon to wit; a knife . . . contrary to Section 30-3-5, NMSA, 

1978.” In Count 3 Webb was charge with tampering and interference with 

communications. The June 12, 2009 plea and disposition agreement stated that Webb 

pleaded in count 1 to “[a]rmed [r]obbery, § 30-28-2 and § 30-16-2, NMSA 1978, a 
25

second degree felony.” The plea agreement indicated that “[T]his agreement, unless 

rejected or withdrawn, serves to amend the . . . information to charge the offense to which 

the defendant pleads, without the filing of any additional pleading.” The August 3, 2009 

judgment provided that Webb “was convicted on June 11, 2009, pursuant to a no contest 

plea accepted by the court of the offense[] of Armed Robbery, a second degree felony, 

contrary to § 30-16-02, NMSA 1978, occurring on or about February 20, 2009, as 

charged in Count 1 of the Criminal Information[.]” 

The parties disagree regarding what facts the record of conviction proves, and 

what can lawfully be inferred from the record. Webb asserts that although he was 

charged in the April 9, 2009 information with robbery “while armed with a knife,” that 

information was amended by the terms of the June 12, 2009 plea agreement. As a result, 

Webb argues that he pled to armed robbery without admitting that he possessed or used a 

knife. Webb contends that as defined in New Mexico law, armed robbery without proof 

or an admission of use of a knife does not share the same elements as robbery in 

California, and thus the trial court erred in finding the New Mexico robbery prior to be a 

serious felony or a strike offense. 

The crime of armed robbery in New Mexico is defined as taking “anything of 

value from the person of another or from the immediate control of another, by use or 

threatened use of force or violence. [¶] Whoever commits a robbery is guilty of a third 

degree felony. [¶] Whoever commits robbery while armed with a deadly weapon is, for 

the first offense, guilty of a second degree felony and, for second and subsequent 

offenses, is guilty of a first degree felony.” (N.M. Stat. Ann. § 30-16-2.)

Robbery in California is defined as “the felonious taking of personal property in 

the possession of another, from his person or immediate presence, and against his will, 

accomplished by means of force or fear.” (§ 211; see People v. Clark (2011) 52 Cal.4th 

856, 944 (Clark).) The elements of robbery are (1) the defendant took property that was 

not his or hers; (2) the property was taken from another person’s possession and 
26

immediate presence; (3) the property was taken against the person’s will; (4) the 

defendant used force or fear to take the property or to prevent the person from resisting; 

and (5) when the defendant used force or fear to take the property, the defendant intended 

to remove it from the owner’s possession for such an extended period of time the owner 

would be deprived of a major portion of the value of the property. (Clark, at p. 943.)

Webb argues his robbery conviction from New Mexico does not qualify as a strike 

in California unless it can be proved to have committed while armed with a knife, 

because the force required to commit a robbery in New Mexico differs from that required 

in California. In California, “it is established that something more is required than just 

the quantum of force which is necessary to accomplish the mere seizing of the property.” 

(People v. Morales (1975) 49 Cal.App.3d 134, 139.) Thus “[g]rabbing or snatching 

property from the hand has often been held to be grand larceny, and not robbery.” 

(People v. Church (1897) 116 Cal. 300, 303; citing State v. Clokey, 553 P.2d 1260 (N.M. 

1976)), Webb asserts that a lesser amount of force is sufficient to support a robbery in 

New Mexico, such that even if no resistance is offered by the victim of a purse snatch, 

the force accompanying the snatching of the purse is sufficient to support a robbery 

conviction.

We need not determine whether armed robbery as described in New Mexico is the 

equivalent of robbery as defined under California law because we conclude that the 

record demonstrates that Webb was armed with a knife when he committed the robbery. 

Although Webb pled no contest to armed robbery as charged in the information, and the 

information alleged that he took property “by the use of force or threats of force while 

armed with a knife,” Webb argues the trial court could not infer that he pled to armed 

robbery while armed with a knife. He points to the language in the plea form that states: 

“this agreement, unless rejected or withdrawn, serves to amend the complaint, indictment, 

or information to charge the offense to which the defendant pleads, without the filing of 

any additional pleading.” (Emphasis added.) He asserts the judgment stating that Webb 
27

“was convicted on June 11, 2009, pursuant to a no contest plea accepted and recorded by 

the Court, of the offenses of Armed Robbery, a second degree felony . . . as charged in 

Count 1 of the Criminal Information; [and] Aggravated Battery (Deadly Weapon), a third 

degree felony . . . as charged in Count 2 of the Criminal Information,” did not refer back 

to the original criminal information filed on April 1, 2009, but reflected instead the 

“amended” information that allowed Webb to plead to armed robbery and aggravated 

battery (deadly weapon) without reference to the specific information that Webb was 

armed with a knife. 

We do not agree. The reference to amending the information in the plea form 

addressed the fact that the remaining charges from the information, which were 

tampering with evidence and interference with communications, were dismissed. Webb 

pleaded to armed robbery and aggravated battery (deadly weapon), which are the same 

two charges alleged in counts 1 and 2 in the information. It is reasonable to infer that the 

allegations from the information were incorporated in the plea because the judgment 

states that Webb pleaded guilty to armed robbery “as charged in Count 1 of the Criminal 

Information.” The plea in this case thus included the allegation that Webb stole papers 

and currency from the victim by use of force or threats of force while armed with a knife. 

Webb cites People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), for the 

proposition that the trial court was prevented from considering the criminal information 

in this case to conclude that he was armed with a knife when he committed the robbery. 

In Gallardo, the trial court reviewed the preliminary hearing testimony of the victim of 

an assault to conclude that the defendant was armed with a knife during the commission 

of the crime. (Id. at p. 126.) The fact that the defendant was armed with a knife elevated 

the assault to a serious felony and a strike that could serve as a prior to enhance the 

defendant’s sentence. (Ibid.) Our Supreme Court concluded that it was improper for the 

trial court to use the victim’s testimony at the preliminary hearing in finding that the 

defendant was armed with a knife while committing the assault when the defendant did
28

not adopt the testimony as a factual basis for the guilty plea. (Id. at p. 136.) The trial 

court was only permitted to consider the plea itself, and the defendant did not specify that 

she used a knife when entering her guilty plea. (Ibid.)

Webb also cites People v. Strike (2020) 45 Cal.App.5th 143 (Strike), in which the 

Fourth District Court of Appeal applied Gallardo, finding that the trial court “engaged in 

impermissible judicial factfinding” by considering the factual allegations in the charging 

document to find that the defendant committed the offense with another gang member, 

making the crime a prior strike. (Id. at p. 153.) In Strike, the defendant pleaded guilty to 

participating in a criminal street gang (§ 186.22, subd. (a)), which was reflected in his 

change of plea form. However, the fact that he participated in the crime with another 

gang member was not part of the plea form; rather, it was contained in the charging 

documents. (Strike, at p. 153.) The change of plea form did not refer to the defendant’s 

plea to the charge “as alleged.” (Ibid.) Therefore, the Strike court held it was improper 

for the trial court to consider the allegations in the charging document. (Ibid.)

Webb’s reliance on both Gallardo and Strike is misplaced. In Gallardo, the 

defendant’s guilty plea to assault contained no reference to the fact that she was armed 

with a deadly weapon and did not adopt the testimony elicited at the preliminary hearing 

as a factual basis of her guilty plea. As a result, there were no facts in the record of 

conviction from which the trial court could conclude that Gallardo was armed with a 

knife when she committed the assault. Similarly, in Strike, the defendant’s change of 

plea form for his guilty plea made no reference to the defendant committing the crime 

with a gang member nor did it refer to the defendant pleading guilty to the crime “as 

alleged.” Therefore, there were no facts upon which the court could properly rely that the 

defendant committed the crime with a gang member. Here, on the other hand, Webb’s 

record of conviction includes facts from which to conclude that he was armed with a 

knife when he committed armed robbery and aggravated battery. Webb pleaded no 

contest to armed robbery and aggravated battery (deadly weapon), with a specific 
29

reference to the allegations in the information that Webb was armed with a knife. It was 

not improper for the trial court in this case to consider the criminal information because 

Webb pleaded to the crimes “as charged in the criminal information.” The criminal 

information provides the facts necessary to demonstrate that Webb was armed with a 

knife during the commission of the crimes. 

The armed robbery to which Webb pleaded no contest involved the taking of 

property “by the use of force or threats of force while armed with a knife.” The fact that 

the record of conviction establishes that Webb was armed with a knife when he 

committed the robbery is sufficient to satisfy the requirements of robbery in California. 

The New Mexico robbery conviction thus qualifies as a prior strike (§§ 667, subds. (b)-

(i); 1170.12), and a prior serious felony conviction (§ 667.5, subd. (a)). 

2. Aggravated Battery

As with the New Mexico robbery conviction, Webb argues that his New Mexico 

conviction for aggravated battery is not a California equivalent. We are not persuaded.

Webb pled no contest to aggravated battery (deadly weapon), which in New 

Mexico is defined as: “A. Aggravated battery consists of the unlawful touching or 

application of force to the person of another with intent to injure that person or another. 

[¶] B. Whoever commits aggravated battery, inflicting an injury to the person which is 

not likely to cause death or great bodily harm, but does cause painful temporary 

disfigurement or temporary loss or impairment of the functions of any member or organ 

of the body, is guilty of a misdemeanor. [¶] C. Whoever commits aggravated battery 

inflicting great bodily harm or does so with a deadly weapon or does so in any manner 

whereby great bodily harm or death can be inflicted is guilty of a third degree felony.” 

(N.M. Stat. Ann. § 30-3-5.) Aggravated battery with a deadly weapon under New 

Mexico law does not require serious bodily injury; rather, it only requires that a deadly 

weapon be used. (Ibid.)
30

The criminal information alleged that Webb committed the crime of aggravated 

battery (deadly weapon) as follows: “[O]n or about February 20, 2009, [Webb] did touch 

or apply force to the person of Pete Casen with a deadly weapon to wit; a knife, a thirddegree felony, contrary to Section 30-3-5, NMSA 1978.” The plea and disposition 

agreement states that Webb pleaded no contest to “[c]ount 2: Aggravated Battery 

(Deadly Weapon), § 30-3-5, NMSA 1978, a third-degree felony.” The judgment 

provided that Webb “was convicted on June 11, 2009, pursuant to a no contest plea 

accepted by the court of the offense[] of Aggravated Battery (Deadly Weapon), a third 

degree felony, contrary to § 30-3-5 (C), NMSA 1978, as charged in Count 2 of the 

Criminal Information[.]” 

Simple battery in California is defined in section 242 as “any willful or unlawful 

use of force or violence upon the person of another.” Felony battery is defined in section 

243, subdivision (d) as “[w]hen a battery is committed against any person and serious 

bodily injury is inflicted on that person . . . .” Assault with a deadly weapon under 

California law is defined as follows: “an assault upon the person of another with a deadly 

weapon . . . .” (§ 245, subd. (a)(1).) “Assault” is defined as “an unlawful attempt, 

coupled with a present ability, to commit a violent injury on the person of another.” 

(§ 240.) Assault with a deadly weapon in violation of section 245 qualifies as a strike

because it is defined as a serious felony under section 1192.7, subd. (c)(31).

Aggravated battery in New Mexico requires that an actual battery must occur, 

whereas assault with a deadly weapon in California requires only an attempted battery. 

(N.M. Stat. Ann. § 30-3-5; §§ 245, subd. (a)(1); 240.) Therefore, because the New 

Mexico statute requires more than the California statute, the New Mexico crime is 

necessarily encompassed in the California crime. A violation of the New Mexico statute 

for aggravated battery (deadly weapon) (N.M. Stat. Ann. § 30-3-5, subd. (C)), is also a 

violation of the California statute for assault with a deadly weapon (§ 245, subd. (a)(1).)
31

Webb pled no contest to aggravated battery (deadly weapon), as alleged in count 2 

of the criminal information. The criminal information alleged that Webb committed 

aggravated battery by applying force to the victim with a knife. This conduct by 

definition qualifies as an assault with a deadly weapon pursuant to section 245, subd. 

(a)(1), which is defined as “an assault upon the person of another with a 

deadly weapon . . . .” (§ 245, subd. (a)(1).)

As we concluded regarding Webb’s armed robbery conviction, we are not 

persuaded by his argument that the trial court could not consider the facts in the criminal 

information when determining that he was armed with a knife during the commission of 

the New Mexico crimes. The judgment reflects that Webb pled no contest to counts 1 

and 2 as alleged in the criminal information. We do not agree that the original 

information was amended by the plea form to remove the facts supporting the criminal 

charges. Webb’s plea to aggravated battery (deadly weapon), included the admission that 

he used force against the victim with a knife. Therefore, there is substantial evidence to 

support the trial court’s conclusion that the conviction qualifies as a strike under sections 

667, subdivisions. (b)-(i) and 1170.12.

8

J. Remand for Resentencing Pursuant to Senate Bill No. 1393

At the time of Webb’s sentencing, the trial court was required to impose the fiveyear enhancement under section 667, former subdivision (a)(1), based on Webb’s prior 

serious felony conviction. However, effective January 1, 2019, section 667, subdivision 

(a)(1), and section 1385 were amended to permit a trial court, in the furtherance of 

justice, to strike or dismiss a five-year enhancement under section 667, subdivision 

(a)(1). (Sen. Bill No. 1393, ch. 1013, §§ 1, 2.)

8 The trial court granted Webb’s Romero motion, and struck the prior aggravated 

battery conviction for the purpose of sentencing. The trial court found the allegation that 

the prior aggravated battery qualified as a prior serious felony pursuant to section 667, 

subdivision (a) not true following the court trial.
32

Webb argues his case should be remanded for the trial court to exercise its 

discretion to strike his prior serious felony conviction enhancement. The parties agree 

that the statutory amendments apply retroactively in this case. (People v. Garcia (2018) 

28 Cal.App.5th 961, 971-973; People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425

(McDaniels).) The parties disagree as to whether remand for resentencing is required in 

this case.

The Attorney General argues remand would be futile in this case because the trial 

court’s sentencing decisions demonstrate that it would not have stricken Webb’s prior 

serious felony conviction enhancement even if it had the discretion to do so. Specifically, 

the trial court imposed the aggravated term for the mayhem and assault convictions, 

noting that the crimes involved “great violence showing a high degree of cruelty, 

viciousness, and callousness[.]” The Attorney General asserts the fact that the trial court 

found the crimes to be violent, and imposed the aggravated term as a result, demonstrates 

that remand for the trial court to exercise its discretion would be futile. 

A defendant is entitled to “ ‘sentencing decisions made in the exercise of the 

“informed discretion” of the sentencing court,’ and a court that is unaware of its 

discretionary authority cannot exercise its informed discretion. [Citation.] But if ‘ “the 

record shows that the trial court would not have exercised its discretion even if it believed 

it could do so, then remand would be an idle act and is not required.” ’ [Citation.]” 

(McDaniels, supra, 22 Cal.App.5th at p. 420; see also, People v. Gutierrez (2014) 58 

Cal.4th 1354, 1391; [if the record clearly indicates that the trial court would have reached 

the same conclusion even if it had been aware that it had discretion, remand for 

resentencing is not required].)

We are not persuaded the trial court’s sentencing decisions and findings in this 

case unequivocally demonstrate that it will not exercise its newfound discretion to strike 

the prior serious felony enhancement. “ ‘[W]hen the record shows that the trial court 

proceeded with sentencing on the . . . assumption it lacked discretion, remand is 
33

necessary so that the trial court may have the opportunity to exercise its sentencing 

discretion at a new sentencing hearing. [Citations.]” (McDaniels, supra, 22 Cal.App.5th 

at p. 420.) 

At the time Webb was sentenced, the trial court lacked the discretion to strike or 

stay the prior serious felony enhancement. Webb is entitled to be sentenced in the 

exercise of informed discretion and remand is appropriate so that the trial court may 

exercise its discretion in the first instance in light of the amendments to sections 667 and 

1385. We express no opinion on how the trial court should exercise its discretion on 

remand. (McDaniels, supra, 22 Cal.App.5th at p. 428.) 

III. DISPOSITION

The judgment is reversed, and the matter is remanded for the sole purpose of 

resentencing, and for the trial court to exercise its discretion whether to strike the fiveyear serious felony enhancement under section 667, subdivision (a)(1). (Sen. Bill 

No. 1393, ch. 1013, §§ 1, 2.)
_______________________________

Greenwood, P. J.

WE CONCUR:

_________________________________

 Elia, J.

_______________________________________________

 Bamattre-Manoukian, J.

People v. Webb

H045312