1

Filed 11/5/20 P. v. Schafer CA3

Opinion on transfer from Supreme Court

See concurring & dissenting opinion

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL GENE SCHAFER,

Defendant and Appellant.

C083560

(Super. Ct. No. 15F04925)

OPINION ON REMAND

A jury found defendant Daniel Gene Schafer guilty of attempted first degree 

robbery, first degree robbery, first degree burglary, and possession of a firearm by a 

felon.

1

 It also found defendant personally used a firearm during the commission of the 

attempted robbery, robbery, and burglary. After the court found defendant had been 

convicted of seven prior strike offenses, it sentenced him to 98 years four months to life 

1 Defendant and codefendant Michalei Brown were tried during the same trial but 

by separate juries. Brown is not a party to this appeal. 
2

in prison. On appeal, defendant argues two evidentiary and multiple sentencing errors. 

We agree with defendant’s sentencing contentions and remand to the trial court for 

resentencing. 

FACTUAL AND PROCEDURAL BACKGROUND

I

The Crimes

In August 2015, Wade M., Brown, and defendant were in Wade’s garage figuring 

out a way they could get drugs without having to pay for them because none of them had 

any money. The group decided they would rob Peter L., a drug dealer they knew, who 

had recently been in a car accident and was couch-bound. The group discussed a plan 

and defendant told them he had a gun to commit the robbery. Wade would not 

participate in the actual robbery because Peter did not like him and would know 

something was wrong if he saw Wade. Brown was injured at the time and could not 

walk. 

Brown called Peter and asked if she could go to his house to buy drugs. After 

Peter spoke with defendant to assure himself defendant was trustworthy, Peter allowed 

Brown and defendant to come over.2 Given the time of Brown’s call (between 4:00 a.m.

and 5:00 a.m.) and his own vulnerable condition, Peter thought it best to ask a friend to 

come over, so he was not alone when Brown and defendant arrived. Peter texted his 

friend Ivan B. to come over to help with house work and Ivan agreed. Ivan arrived at 

Peter’s house soon after. 

Around 5:00 a.m., Peter told Ivan his friends were coming over and that Ivan 

needed to meet them outside with Peter’s wheelchair because Brown could not walk. 

When Ivan got outside and defendant parked his truck, Ivan attempted to help Brown out 

2 Although he testified under a grant of immunity, Peter denied being a drug dealer. 

Instead, he testified Brown and defendant came over to sell him food stamps. 
3

of the truck but defendant said he would do it. Wade was crouched in the backseat of the 

truck hidden from view and Ivan did not see him. Only defendant and Brown followed 

Ivan into Peter’s house with defendant pushing Brown in the wheelchair. 

When they got inside, defendant locked the door behind him and told Ivan to keep 

his hands visible. Ivan asked if defendant was joking, and defendant responded by 

pulling out a handgun and demanding Ivan get on the ground or he would be shot. Ivan 

complied. Defendant also demanded Ivan give him his cell phone, which Ivan did by 

placing it on a nearby couch. Defendant picked it up and handed it to Brown who 

appeared to go through the contents of Ivan’s phone. 

Defendant then took several steps toward Peter. Peter pulled out a gun and 

pointed it at defendant and also verbally threatened to shoot him. Peter’s gun was a BB 

gun but appeared to be real. Defendant immediately retreated behind Brown and 

crouched down. Peter and defendant both yelled threats at each other and at Brown. 

Peter called his landlord on his cell phone, who lived next door, and told her he was 

being held at gunpoint. The landlord immediately hung up and called the Sacramento 

County Sheriff’s Department. 

Following Peter’s conversation with his landlord, defendant backed out of Peter’s 

house with Brown while still holding the gun at both Peter and Ivan. When they got 

outside, defendant helped Brown into his truck and drove away. Defendant told Wade 

that they were unable to get “anything” from Peter because Peter had a gun. 

When the group arrived back at Wade’s house, they went into the garage and 

again brainstormed about ways to “get high.” Wade went into the house and returned 

with a check from his mother’s bank account. He filled it out for $200 payable to 

defendant and forged his mother’s signature. He gave the check to defendant to cash, 

who said he would be back shortly with the money; however, defendant never returned. 

Following the incident, Ivan identified defendant in a six-pack photo lineup. At 

trial, Peter was “[p]retty sure” defendant was the man who attempted to rob him. Peter
4

testified, however, that he picked defendant out of the six-pack photo lineup because he 

looked the most like the man who attempted to rob him but did not think it was him. The 

deputy who administered the six-pack photo lineup disputed this account and testified 

that Peter confidently picked defendant after viewing the lineup for three to ten seconds.3 

II

Sentencing4

At sentencing, defendant moved to strike his prior strike convictions. The court 

denied his motion, reasoning that defendant committed his crimes after a short period of 

freedom from a long incarceration. Further, defendant’s current crimes were the same 

type of crimes for which he had previously been convicted. The court also found 

defendant’s prospects “are poor given what we have seen. There’s -- there’s little to no 

chance that the [d]efendant’s path would turn, at least in my mind, if history is any 

indication of the future, which generally that’s the best gauge we have.” After reciting 

the purpose of the three strikes law, the court found that defendant did not fall outside of 

its purpose. Indeed, it observed defendant “would be a model for why the three strikes 

law exists. So for those reasons the request to strike the strikes are denied.” 

The trial court then imposed 25 years to life for the attempted robbery conviction

plus 10 years for the gun enhancement under Penal Code5section 12022.53, 

3 Defendant testified in his own defense and claimed he did not participate in the 

crimes. Instead, he claimed he took Brown to pick up a food stamp card from Peter. He 

dropped Brown off at the corner near Peter’s house and drove away. Brown called him a 

few minutes later and he picked her up. He then drove her back to Wade’s house where 

Wade gave him money he owed him. Wade claimed his mother was covering the debt 

for him. 

4 Defendant raises multiple evidentiary claims on appeal. We will discuss the facts 

relevant to those claims in the relevant discussion section. 

5 Further section references are to the Penal Code, unless otherwise indicated. 
5

subdivision (b) attached to that conviction. It further imposed 25 years to life on the 

robbery conviction plus three years four months for the gun enhancement also under 

section 12022.53, subdivision (b) attached to that conviction. It imposed, and then stayed 

pursuant to section 654, 25 years to life for the burglary conviction and three years four 

months for the attached firearm enhancement under section 12022.5.6 As to the 

possession of a firearm by a convicted felon, the trial court imposed 25 years to life. It 

also imposed two prior serious felony conviction enhancements pursuant to section 667, 

subdivision (a), for a total term of 98 years four months to life in prison. When 

announcing defendant’s sentence, the court indicated it did not have the discretion to 

sentence defendant to concurrent terms as consecutive terms were mandated by statute. 

Defendant appeals. 

DISCUSSION

I

Evidentiary Claims

Defendant contends the trial court erred by admitting the facts underlying his prior 

robbery convictions to show intent and common plan pursuant to Evidence Code 

section 1101, subdivision (b). He also contends the trial court erred by excluding 

evidence the prosecutor knew Wade’s mother. We disagree. 

The trial court has broad discretion in determining the admissibility of evidence. 

“A trial court’s ruling to admit or exclude evidence . . . is reviewed for abuse of 

discretion and will be upheld unless the trial court ‘exercised its discretion in an arbitrary, 

capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” 

(People v. Ledesma (2006) 39 Cal.4th 641, 705.)

6 The court orally imposed four years three months, which the reporter’s transcript 

indicated was obvious error. The abstract of judgment, however, is missing any notation 

to defendant’s burglary conviction and the subsequently stayed sentence. 
6

A

The Court Did Not Abuse Its Discretion By Admitting The 

Facts Of Defendant’s Prior Robbery Convictions 

Defendant first challenges the court’s admission of the facts underlying his prior 

robbery convictions for the purposes of showing his intent and common plan. He argues 

that because he testified he did not rob Peter, his intent was not at issue and the evidence 

was irrelevant. He also argues the facts underlying his prior robbery convictions were 

not sufficiently similar to the facts of the current offense to show a common plan, making 

the evidence’s admission for that purpose prejudicial. 

1

Background

Defendant objected to the admission of the facts underlying the two prior 

robberies he committed when he was 16 years old. The court overruled the objection 

finding the prior robberies were sufficiently similar to the current robbery for the 

purposes of showing defendant’s intent and common scheme or plan. 

The first robbery occurred in January 1997 when defendant and his girlfriend 

entered a high-end furniture store and defendant held two store clerks at gunpoint after 

initially going to the bathroom and leaving his girlfriend to talk with the clerks. 

Defendant demanded money and access to the safe. When a clerk told defendant the 

store did not carry cash and that customers paid with credit cards, defendant took the 

clerks’ purses and wallets. Before fleeing, defendant unplugged the handsets to all of the 

phones, but the clerks were able to call police using the speaker phone. At trial, one of 

the clerks testified to the facts of the robbery. When asked to identify defendant, she 

asked not to because she did not want to look at him given the traumatic nature of the 

robbery.

The second robbery occurred in February 1997 when defendant and a female 

companion held a taxi cab driver at gunpoint, forcing him to give them his wallet, cash, 
7

and wedding ring. They took the man to an apartment complex that night and tied him up 

before deciding to make him drive them to an ATM, where he could withdraw cash to 

give them. After taking money from the driver’s bank account, defendant tied the driver 

to the driver’s seat of his taxi cab and fled. The driver testified to the facts of this robbery 

and said the event was very traumatic for him. 

As a result of these robberies, defendant had seven felony convictions and served 

18 years in prison. He was released 16 months before the current crimes occurred. After 

admission of these prior acts, the trial court instructed the jury: “This is not what we call 

propensity evidence, that is [defendant] did these acts, then therefore he must have done 

this act he’s charged with now. That’s not what this evidence was for. This -- in -- prior 

to your beginning to hear evidence, I had ruled that certain evidence can come in under 

an Evidence Code section. This evidence would be used by the People to show what we 

call intent or common scheme or plan. And when the People argue their case, that is 

what the People will use the evidence for, not to show that because the prior acts were 

committed, this act must have been committed. . . . It is only to be used by the People to 

show a common scheme or plan or to show evidence of intent.” 

2

Discussion

Evidence Code section 1101, subdivision (a) prohibits the admission of evidence 

of uncharged offenses to prove propensity or disposition to commit the charged crime. 

(People v. Ewald (1994) 7 Cal.4th 380, 393; People v. Hendrix (2013) 214 Cal.App.4th 

216, 238.) However, subdivision (b) of that section provides that such evidence is 

admissible “when relevant for a noncharacter purpose -- that is, when it is relevant to 

prove some fact other than the defendant’s criminal disposition, such as ‘motive, 

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake of fact or 

accident.’ ” (Hendrix, at p. 238.) “ ‘Evidence of uncharged crimes is admissible to prove 

identity, common design or plan, or intent only if the charged and uncharged crimes are 
8

sufficiently similar to support a rational inference of identity, common design or plan, or 

intent.” (People v. Lenart (2004) 32 Cal.4th 1107, 1123.) 

Ewoldt provides the framework to analyze defendant’s claim: “The least degree of 

similarity (between the uncharged act and the charged offense) is required in order to 

prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with 

each instance) to negative accident or inadvertence or self-defense or good faith or other 

innocent mental state, and tends to establish (provisionally, at least, though not certainly) 

the presence of the normal, i.e., criminal, intent accompanying such an act. . . .’ 

[Citation.] In order to be admissible to prove intent, the uncharged misconduct must be 

sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the 

same intent in each instance.” ’ ” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)

“A greater degree of similarity is required in order to prove the existence of a 

common design or plan. . . . ‘[T]he difference between requiring similarity, for acts 

negativing innocent intent, and requiring common features indicating common design, for 

acts showing design, is a difference of degree rather than of kind; for to be similar 

involves having common features, and to have common features is merely to have a high 

degree of similarity.’ ” (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403; see also 

People v. Thomas (2011) 52 Cal.4th 336, 355.) “To establish the existence of a common 

design or plan, the common features must indicate the existence of a plan rather than a 

series of similar spontaneous acts, but the plan thus revealed need not be distinctive or 

unusual.” (Ewoldt, at p. 403.)

Because establishing a common scheme or plan requires a greater degree of 

similarity than establishing intent, we will address defendant’s arguments in reverse 

order. Defendant relies on Leon and Foster to show his case lacked the degree of 

similarity required in those cases to show common scheme or plan. (People v. Leon 

(2015) 61 Cal.4th 569; People v. Foster (2010) 50 Cal.4th 1301.) 
9

In Leon, the defendant was convicted of multiple counts of murder and robbery 

related to a month-long crime spree. (People v. Leon, supra, 61 Cal.4th at p. 576.) Our 

California Supreme Court held evidence of prior robberies was properly admitted, 

reasoning that the uncharged robberies and the charged robberies occurred at small stores 

located in the same general neighborhood. (Id. at pp. 594, 598.) Additionally, the 

uncharged robberies occurred only a few days before and after the charged robberies and 

a gun stolen in one of the uncharged robberies was used to commit some of the charged 

robberies and the murders. (Id. at p. 598.)

In Foster, the defendant was convicted of first degree felony murder, second 

degree burglary, and second degree robbery. (People v. Foster, supra, 50 Cal.4th at p. 

1307.) At trial, the prosecution introduced evidence of two uncharged robberies that 

shared the following features with the current crime: the defendant “visit[ed] an office in 

the middle of the day, determin[ed] that a woman was alone in the office, return[ed] in 

the middle of the day, mov[ed] the woman to a more remote area of the premises, 

demand[ed] the woman’s money and any other cash available on the premises, and 

violently attack[ed] her when she resisted.” (Id. at pp. 1326-1327, 1329.) The trial court 

accepted the other-crimes evidence as sufficiently similar to prove common plan, intent, 

and identity (id. at p. 1327), and our Supreme Court upheld this ruling, however, declined 

to determine whether the evidence was also admissible to prove identity (id. at p. 1329).

Defendant contends his case is unlike those cited because his prior crimes were 

not committed close in time to the current offense and he previously robbed people 

engaged in the public trade of goods and services and not drug dealers. He further 

contends the similarities are those found in “virtually every robbery,” in that defendant 

robbed people he did not know with a female companion and a gun. We disagree.

First, the long passage of time is explained by defendant’s extended incarceration 

between the offenses. (See People v. Lewis (2009) 46 Cal.4th 1255, 1287 [noting that the 

defendant had been incarcerated much of the time between the prior misconduct and the 
10

charged crimes].) Second, we do not see a meaningful distinction between the 

professions of defendant’s prior victims and his current one. The important aspect is that 

defendant believed he was robbing people engaged in a trade that provided them with 

access to money. Finally, in all of defendant’s robberies, he gained access to his victims’

place of business under the guise of innocence before holding his victims at gunpoint and 

demanding property. He attempted to remove their means of communication by either 

tying them up or taking their phones, rendering them helpless and without the ability to 

promptly report the crimes. He did all of these offenses with a female companion, 

seeming to initially provide comfort to his victims by presenting an innocent-looking 

coconspirator or someone who knew the victim. That these characteristics may be 

somewhat common among other robberies is of no consequence. It is enough that it 

appears defendant had a common plan during these offenses, the plan “need not be 

distinctive or unusual.” (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) Given these 

similarities, we conclude the trial court did not abuse its discretion in finding the 

evidence admissible to show common scheme or plan.

Despite the similarities between defendant’s crimes, he relies on Bowen to argue 

that his intent was not at issue and the evidence should not have been admitted on that 

basis. (Bowen v. Ryan (2008) 163 Cal.App.4th 916.) In Bowen, a civil case, a dentist 

who had treated as many as 45,000 patients during his 28-year career was accused of 

choking a patient in order to give him an injection and then shoving him against a wall. 

(Id. at pp. 918, 925.) The patient sought to admit nine other instances of the dentist 

acting improperly to show the dentist’s intent and common scheme of being violent 

toward uncooperative patients. (Id. at pp. 921-924.) We held the evidence was not 

admissible to prove intent: “[P]laintiff contended that defendant put his arm against his 

neck and choked him, and then shoved him against a wall. Had defendant conceded 

doing these acts but sought to defend them as occurring by accident or otherwise, 

evidence of uncharged acts might have been admissible to establish his intent. [Citation.]
11

But that is not the case. Instead, defendant denied choking or shoving plaintiff. Because 

the act was not conceded or assumed, defendant’s intent was not at issue.” (Id. at p. 926.)

Bowen, however, was a civil case. Thus, the plaintiff did not have the burden of 

proving intent beyond a reasonable doubt. In this criminal case, Scott is controlling. 

(People v. Scott (2011) 52 Cal.4th 452.) “ ‘[A] fact -- like defendant’s intent -- generally 

becomes “disputed” when it is raised by a plea of not guilty or a denial of an allegation. 

[Citation.] Such a fact remains “disputed” until it is resolved.’ [Citation.] [¶] A 

defendant may seek to limit the admissibility of . . . evidence by stipulating to certain 

issues. However, defendant did not do so here.” (Id. at p. 471.) Here, the prosecution 

had the burden of showing defendant intended to permanently deprive the owner of

property or remove it from him for an extended period of time. (CALCRIM No. 1600.) 

Defendant’s prior acts tended to prove he knew the consequences of his actions, and thus 

acted with the required intent when committing the actions. (See People v. Ewoldt, 

supra, 7 Cal.4th at p. 402.) The court did not abuse its discretion under Evidence Code 

section 1101, subdivision (b).

To the extent defendant argues the evidence should have been excluded because 

its relevance was outweighed by its prejudicial effect, that argument also lacks merit. 

Evidence is inadmissible under Evidence Code section 352, “if its probative value is 

substantially outweighed by the probability that its admission will (a) necessitate undue 

consumption of time or (b) create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury.” Evidence is unduly prejudicial if it uniquely tends to 

evoke an emotional bias against a party as an individual, or if it would cause the jury to 

prejudge a person or cause on the basis of extraneous factors. (People v. Foster, supra, 

50 Cal.4th at p. 1331.) Defendant points to the emotional testimony of his prior victims

as being unduly prejudicial. We disagree. 

While both witnesses described the experiences as traumatic, the record does not 

reflect that the testimony was “fraught with emotion,” as defendant contends. The 
12

testimony was relatively short and relayed the facts of defendant’s prior robberies. There 

was no indication the witnesses were crying or unable to relate what happened to them 

due to their trauma. The store clerk did not want to look at defendant, but even then, this 

was but one statement before she was excused from the witness stand. The trauma these 

victims experienced was apparent from the facts they related, their statement that the 

incident was traumatic added little to their overall testimony. Neither were the facts of 

the prior robberies so severe as to bias the jury. Defendant’s prior conduct was similar to 

his current offense, all of which were traumatic to his victims, and his prior crimes did 

not involve physical injury leading to potential jury bias. Further, the jury knew 

defendant’s age when committing these prior crimes and the extent to which he was 

punished, ensuring it would not punish him for committing these past robberies. On 

balance, the testimony of defendant’s prior victims was not unduly prejudicial and the 

trial court did not abuse its discretion under Evidence Code section 352. Accordingly, we 

similarly reject defendant’s argument that the court’s ruling violated his right to due 

process. (See People v. Cunningham (2001) 25 Cal.4th 926, 998 [proper application of 

the rules of evidence ordinarily does not violate due process].) 

B

The Court Did Not Abuse Its Discretion By Excluding Evidence Of 

A Prior Relationship Between The Prosecutor And A Witness

Defendant next challenges the trial court’s exclusion of evidence under Evidence 

Code section 352 that the prosecutor knew Wade’s mother because he believes the 

evidence was relevant to show her bias for the prosecution and it served to explain why 

Wade received a favorable plea deal. This evidence was not outweighed, defendant 

argues, by its undue prejudice. We disagree.
13

1

Background

The prosecutor moved to exclude evidence that he knew Wade’s mother, who 

testified at trial. The prosecution’s written motion in limine provides, “The People make 

a motion to exclude under Evidence Code section 352 mention of [Wade’s mother’s] 

connection with [the prosecutor]. [She] previously worked with [the prosecutor’s] stepmother approximately 10 years ago. During that time, [the prosecutor] met [her] 

approximately 5 to 10 times when [he] would visit his step-mother at her work. This 

evidence has no probative value to the current case and can only lead to undu[e]

prejudice and confusion of the jury.” 

Defendant argued for admission of this evidence because it tended to show why 

Wade received a favorable deal from the prosecution. The court granted the 

prosecution’s motion to exclude the evidence. 

At trial, Wade’s mother testified to her son’s prior drug use and that she had seen 

defendant socializing with her son on one occasion in her garage. She also testified that 

she did not sign the check Wade made out to defendant for $200 from her bank account 

and she did not give Wade permission to do so. Wade testified as to the facts leading up 

to the robbery, including the planning and execution of it. He also testified that he wrote 

the check to defendant for $200 without his mother’s permission. Wade testified pursuant 

to a plea bargain, wherein he promised to tell the truth in exchange for his plea of guilty 

to being an accessory to a felony. Part of the plea bargain was that he would not serve 

any jail time but would remain on probation for five years. 

2

Discussion

Evidence Code section 780 states in relevant part: “Except as otherwise provided 

by statute, the court or jury may consider in determining the credibility of a witness any 

matter that has any tendency in reason to prove or disprove the truthfulness of his 
14

testimony at the hearing, including but not limited to any of the following: [¶] . . . [¶] 

(f) The existence or nonexistence of a bias, interest, or other motive.”

The state of mind of a witness as to bias, prejudice, interest involved, and hostility 

or friendship toward a party are all subjects for investigation at the trial of a case. 

(People v. Payton (1939) 36 Cal.App.2d 41, 55.) Counsel should be allowed wide 

latitude in developing facts which show bias, prejudice, or interest on the part of a 

witness and which therefore affect the credibility of the witness. (People v. Avelar

(1961) 193 Cal.App.2d 631, 634.) On cross-examination, it is permissible to show the 

fact of relationship, fraternal or otherwise, existing between the witness and the party in 

whose interest he or she is called, as tending to affect his or her credibility. (People v. 

Pickens (1923) 61 Cal.App. 405, 407-408.)

Given the wide latitude afforded to counsel to establish a witness’s credibility, 

defendant argues it was error for the trial court to exclude evidence that Wade’s mother 

had a “personal relationship” with the prosecutor. We disagree. While defendant 

characterizes the prosecutor’s acquaintance with Wade’s mother as a “relationship,” that

“relationship” merely consisted of five to 10 meetings a decade before the trial. The 

record reflects the two may have had limited conversation when the prosecutor visited his 

stepmother at work; however, that does not indicate the prosecutor knew Wade’s mother 

beyond a few casual and brief conversations. This limited interaction was not of a 

serious or personal nature as defendant would have us believe. Also, her testimony held 

little relevance toward defendant’s charged crimes. Indeed, her testimony was offered

only to establish background regarding her son’s drug use and that she did not write the 

$200 check to defendant. 

Further, there was much risk of undue prejudice to the prosecution. Defendant 

argues the “relationship” could explain why Wade received a favorable plea deal, and in 

turn be relevant to Wade’s mother’s and Wade’s credibility. The fact a plea deal exists 

and the conditions of it are relevant to assess credibility. (People v. Bonilla (2007) 41 
15

Cal.4th 313, 337 [“ ‘ “full disclosure of any agreement affecting the witness is required to 

ensure that the jury has a complete picture of the factors affecting the witness’s 

credibility” ’ ”].) There is no indication that the 10 brief conversations the prosecutor had 

with Wade’s mother a decade before trial was the motivation behind Wade’s plea deal, 

which the trial prosecutor did not approve. The plea deal was approved by a different 

prosecutor. To admit evidence that allows the jury to make such an inference, when the 

evidence supporting it is weak, and when the jury already knew the terms of the deal to 

access witness credibility, would result in undue prejudice. 

C

There Was No Cumulative Error

Defendant seeks reversal based on cumulative error. “Under the ‘cumulative 

error’ doctrine, errors that are individually harmless may nevertheless have a cumulative 

effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Here, we 

concluded there was no error. Accordingly, there was no error to cumulative. 

II

Sentencing Claims

Defendant raises multiple sentencing errors. He contends his case should be 

remanded because the trial court did not know of its discretion to sentence him to 

concurrent sentences but instead thought it was required by statute to sentence him 

consecutively to those convictions not stayed pursuant to section 654. He also contends 

the court’s imposition of 25 years to life on his felon in possession of a firearm 

conviction was unauthorized because the prosecutor did not plead an exception to the 

sentencing scheme for nonviolent and nonserious offenses as required by the Three 

Strikes Reform Act. Finally, he contends recent changes to the law governing gun and 

serious felony conviction enhancements require remand so that the trial court can 

exercise its newly granted discretion when deciding whether to sentence him to these 

enhancements. We agree.
16

A

The Trial Court Had Discretion To Sentence 

Defendant’s Serious And Violent Felonies Concurrently

Defendant contends the trial court erred by sentencing him consecutively to his 

three strike convictions because it did not understand it had the discretion to sentence him 

concurrently.7 We agree. 

We recently accepted defendant’s arguments in People v. Gangl (2019) 42 

Cal.App.5th 58. There, we agreed with our colleagues in Division One of the First 

Appellate District and held Proposition 36’s amendments to section 1170.12, subdivision 

(a)(7) (and by implication 667, subdivision (c)(7)) resulted in the trial court having

discretion to sentence a defendant’s serious and violent felony convictions that occurred 

on the same occasion and arose out of the same facts concurrent to each other and then 

consecutive to all other convictions, including nonserious and nonviolent felonies and 

misdemeanor convictions. (Gangl, at pp. 69-71; People v. Torres (2018) 23 Cal.App.5th 

185, 201.) Here, defendant was convicted of serious and violent offenses, thus the trial 

court had discretion to sentence him concurrently to those convictions.

8

 

7 The People argue defendant forfeited this claim on appeal by not objecting in the 

trial court. We disagree. The trial court thought it was required by statute to sentence 

defendant consecutively, meaning that any objection by defendant would have been 

overruled by the trial court as meritless. (People v. Welch (1993) 5 Cal.4th 228, 237 

[“[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial 

where an objection would have been futile”].)

8 We note the trial court’s discretion is also tempered by section 654, which it 

utilized in this instance to stay the sentence on defendant’s conviction for burglary and 

the attached firearm enhancement. 
17

B

Defendant’s Third Strike Sentence For Being A Felon In 

Possession Of A Firearm Violates Due Process9

Defendant contends the trial court erred by imposing a 25-year-to-life sentence on 

his being a felon in possession of a firearm conviction because the information never 

alleged this offense was committed pursuant to an exception to the Three Strikes Reform 

Act. The People agree, as do we, that defendant was not adequately notified of the 

prosecution’s intent to seek a third strike sentence for his being a felon in possession of a 

firearm conviction. 

Our Supreme Court recently addressed a similar issue in Anderson. There, the 

defendant was charged with first degree murder and five counts of robbery, among other 

crimes. (People v. Anderson, supra, 9 Cal.5th at pp. 950-951.) The operative 

information alleged two personal use firearm enhancements on each of the robbery 

counts. The information also alleged a vicarious use firearm enhancement on the murder 

charge. (Ibid.) The trial court instructed the jury and approved verdict forms on the 

vicarious use enhancement as to the robbery counts, even though the enhancements had 

not been alleged as to those counts. (Id. at p. 951.) The jury found the enhancements 

true, and the trial court sentenced the defendant to a drastically increased sentence as 

required by the vicarious use enhancements. (Id. at pp. 951-952.)

Our Supreme Court concluded the trial court erred. It held the information failed 

to comply with the relevant statutory pleading requirements and principles of due process 

underlying them. (People v. Anderson, supra, 9 Cal.5th at pp. 953-955.) As to the 

9 We previously decided this issue against defendant. (People v. Schafer (Feb. 4, 

2020, C083560) [nonpub. opn.].) Our Supreme Court granted review on March 16, 2020, 

S261258, and deferred briefing of the matter pending People v. Anderson (2020) 9 

Cal.5th 946. 
18

pleading requirements of the statute, it provided that for the enhancement to apply, “the 

existence of any fact required [by the relevant provision] shall be alleged in the 

accusatory pleading and either admitted by the defendant in open court or found to be 

true by the trier of fact.” (§ 12022.53, subd. (j); see Anderson, at pp. 953, 955.) As to 

due process, our Supreme Court concluded the vicarious firearm discharge allegation as 

to the murder court was insufficient to provide fair notice the prosecution would seek 

such enhancements on the robbery counts. (Anderson, at p. 957.) Our Supreme Court 

was careful to note that it did “not mean to suggest that an information that fails to plead 

the specific numerical subdivision of an enhancement is necessarily inadequate.

[Citation.] Neither the relevant statutes nor the due process clause requires rigid code 

pleading or the incantation of magic words. But the accusatory pleading must adequately 

inform the defendant as to how the prosecution will seek to exercise its discretion.” (Id. 

at p. 957.)

The statutory provisions at issue here are contained within the Three Strikes 

Reform Act, as set forth in sections 667 and 1170.12. Those sections require that when 

the current felony is not a serious or violent felony, the prosecutor must plead and prove 

an enumerated disqualifying factor to invoke the greater penalty of an indeterminate three 

strike term. (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2)(C).) Here, the 

disqualifying factor was that “[d]uring the commission of the current offense, the 

defendant used a firearm, was armed with a firearm or deadly weapon, or intended to 

cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, 

subd. (c)(2)(C)(iii).) 

The information contained firearm allegations on all counts except defendant’s 

being a felon in possession of a firearm charge. It further did not contain an allegation 

defendant possessed the firearm as a felon pursuant to a disqualifying factor exposing 

him to a harsher sentence. Indeed, as the People point out, the first time a third strike 

term was contemplated for that conviction was in the amended probation report after 
19

defendant was found guilty. Thus, under Anderson, defendant did not have adequate 

statutory notice of the possibility he could be sentenced to a third strike term nor did the 

information adequately inform him as to how the prosecution sought to exercise its 

discretion. Accordingly, defendant’s third strike sentence on this count violates due 

process.

C

While On Remand, The Trial Court Shall Also Exercise 

Its Newly Granted Discretion When Sentencing Defendant To The 

Gun Enhancements And The Prior Serious Felony Conviction Enhancements

Defendant contends his case should be remanded for the trial court to exercise its 

newly granted discretion when sentencing him to the gun and prior serious felony 

conviction enhancements. The People contend that while the amendments apply to 

defendant, remand would be futile because it is clear the trial court would not sentence 

defendant any differently. We agree with the parties that the recent amendments apply to 

defendant. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.) We further 

agree with defendant that his case must be remanded for the court to exercise its newly 

granted discretion.

As it pertains to defendant’s firearm enhancements, the People’s argument is moot 

because we are remanding defendant’s case for resentencing for other reasons. The 

amendment enacted by Senate Bill No. 620 allows for a court to exercise its discretion 

whenever a defendant’s case is remanded for resentencing. (§ 12022.53, subd. (h).) 

Because we have concluded defendant’s case should be remanded for the trial court to 

exercise its informed discretion when sentencing him to his three strike offenses, it is 

appropriate for the court to also consider its newly granted discretion when sentencing 

defendant to his firearm enhancements.

The amendments enacted by Senate Bill No.1393, however, do not include the 

same directive when a defendant’s case is already remanded for resentencing. (§ 667, 
20

subd. (f)(2).) In any event, we conclude remand is appropriate for the trial court to 

consider its newly granted discretion under Senate Bill No. 1393. Generally, when the 

record shows the trial court proceeded with sentencing on the erroneous assumption it 

lacked discretion, remand is necessary so the trial court may have the opportunity to 

exercise its sentencing discretion at a new sentencing hearing. (People v. Gutierrez

(1996) 48 Cal.App.4th 1894, 1895.) While the trial court made statements indicating it 

believed defendant fell within the spirit of the three strikes law, it did not make 

statements indicating what it would have done had it known it had discretion to strike 

defendant’s prior serious felony conviction enhancements under Senate Bill No. 1393, 

which carried a much lower term of imprisonment. Accordingly, we must remand 

defendant’s case for the trial court to exercise its informed discretion when sentencing 

him to these enhancements.

DISPOSITION

Defendant’s case is remanded for resentencing. The trial court shall exercise its 

informed discretion when sentencing defendant to his convictions as well as the firearm 

and prior serious felony conviction enhancements. The trial court shall not impose a 

third strike sentence on defendant’s conviction for being a felon in possession of a 

firearm, as that sentence violates due process. When preparing the abstract of judgment, 

the trial court shall include defendant’s conviction for burglary and the fact that the 

sentence was stayed pursuant to section 654 before forwarding the abstract of judgment 

to the Department of Corrections and Rehabilitation. 

/s/ 

Robie, J.

I concur:

/s/ 

Blease, Acting P. J.
1

Krause, J., Concurring and Dissenting. 

I concur in the majority opinion except for part II.A of the Discussion. To that 

part, I dissent for the reasons articulated in my dissenting opinion in People v. Gangl 

(2019) 42 Cal.App.5th 58 (conc. & dis. opn. of Krause, J.). 

/s/ 

Krause, J.