Filed 4/20/21 P. v. Gilmore CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMAL LEE GILMORE,

Defendant and Appellant.

 B305762

 (Los Angeles County

 Super. Ct. No. NA105314)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Julian C. Recana, Judge. Affirmed.

Robert F. Somers, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey,
2

Senior Assistant Attorney General, Zee Rodriguez and 

William N. Frank, Deputy Attorneys General, for Plaintiff 

and Respondent.

____________________________________________

INTRODUCTION

Between November 2002 and February 2015, appellant 

Jamal Lee Gilmore suffered a series of juvenile adjudications 

and criminal convictions, as a result of which he was 

sentenced to a four-year prison term and multiple terms of 

probation. In July 2015, while still on probation for a prior 

offense, appellant pled guilty to inflicting corporal injury on 

the mother of his two children, and to dissuading her from 

testifying. The latter offense qualified as a strike under the 

“Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 

1170.12) and a serious felony under Penal Code section 667, 

subdivision (a). In October 2016, while still on probation for 

his July 2015 offenses, appellant caused a disturbance in a 

court’s lockup sally port, prompting peace and custodial 

officers to move appellant into a cell. Appellant violently 

resisted the officers, bruising a custodial officer’s legs and 

causing a peace officer to suffer a torn meniscus in his right 

knee. The jury convicted appellant of felony battery on the 

peace officer and misdemeanor battery on the custodial 

officer, and found that appellant inflicted great bodily injury 

on the peace officer. 

The trial court selected the three-year upper term for 

appellant’s felony battery conviction, relying on a
3

psychological evaluation indicating appellant harbored anger 

against and a desire to fight law enforcement (from which 

the court inferred that appellant posed a risk of danger to 

public safety), the fact that appellant was on probation when 

he committed the instant offenses, and appellant’s poor 

performance on probation. The court sentenced appellant to 

an aggregate prison term of 14 years, including a five-year 

enhancement for appellant’s prior serious felony under Penal 

Code section 667, subdivision (a). In an unpublished 

opinion, we affirmed the judgment, concluding, inter alia,

that the court did not err in selecting the upper term for the 

reasons it stated. (People v. Gilmore (Dec. 11, 2018, No. 

B284043).) However, we remanded to the trial court with 

directions to decide whether to exercise its newly granted 

discretion to strike the prior-serious-felony enhancement

under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2; 

(S.B. 1393)). On remand, the court declined to strike the 

enhancement, relying on the same reasons it had articulated 

when selecting the upper term.

On appeal, appellant contends the trial court abused 

its discretion in declining to strike the prior-serious-felony 

enhancement, arguing the court’s decision was so arbitrary 

or irrational that no reasonable person could agree with it. 

We affirm. 
4

FACTUAL BACKGROUND

A. Appellant’s Prior Offenses

Between November 2002 and February 2015, appellant

suffered a series of juvenile adjudications and criminal 

convictions, including a 2008 conviction for transporting 

controlled substances for sale.1(Health & Saf. Code, 

§ 11352, subd. (a).) Appellant was sentenced to a four-year 

prison term on his transportation-for-sale conviction, and to 

probation on his other convictions. 

In July 2015, while still on probation for his February 

2015 offense, appellant pled guilty to inflicting corporal 

injury on the mother of his two children (Pen. Code, § 273.5, 

subd. (a)), and to dissuading her from testifying (id., § 136.1, 

subd. (b)(2)). The latter offense qualified as a strike and a 

serious felony. (Id., §§ 667, subd. (a)(4), 1170.12, subd. 

(b)(1), 1192.7, subd. (c)(37).) Pursuant to a plea deal, 

appellant was sentenced to three years of probation. 

1

In addition to his 2008 transportation-for-sale conviction, 

appellant also suffered: (1) a 2002 juvenile adjudication for 

attempted robbery (Pen. Code, §§ 211, 664); (2) a 2005 juvenile 

adjudication for threats against school employees (id., § 71); (3) a 

2006 juvenile adjudication for a probation violation (Welf. & Inst. 

Code, § 778); (4) a June 2012 misdemeanor conviction for trespass 

(Pen. Code, § 602); (5) August 2012 misdemeanor convictions for 

battery (id., § 242) and vandalism (id., § 594); and (6) a February 

2015 misdemeanor conviction for vandalism (ibid.). 
5

B. Appellant’s Instant Offenses

On October 19, 2016, following an appearance at the 

Long Beach courthouse, appellant awaited a bus in the 

lockup sally port.2 Upon learning that the bus was full, 

appellant became upset and demanded a place on the bus. 

Los Angeles County Custody Assistant Xochitl 

Walden-Ramirez and other lockup personnel told him to 

return to the lockup, but he refused to do so. 

Appellant -- who was still on probation for his July 

2015 offenses -- lunged at the deputy sheriff assigned to 

drive the bus and said, “I will show you, gangster.” Los 

Angeles County Deputy Sheriff Darren Williams, the lockup 

supervisor, grabbed appellant and directed other deputy 

sheriffs to return appellant to the lockup. As the deputy 

sheriffs dragged appellant into the lockup, he thrashed his 

head, kicked his feet, and tried to turn around. Appellant 

said to custody assistant Walden-Ramirez, “Bitch, I’m going 

to kill you. Fucking bitch. I’m going to get you.” 

Inside the lockup, Williams instructed two other 

deputy sheriffs to place appellant in a cell. At the door of the 

cell, appellant hooked or locked his legs in an effort to avoid 

entering it. The deputy sheriffs and Walden-Ramirez 

2

The facts regarding appellant’s instant offenses are taken 

from our unpublished opinion affirming the judgment and 

remanding for consideration of the court’s discretion under S.B. 

1393.
6

nonetheless moved appellant into the cell, where he 

continued to resist them. 

In order to allow the other deputy sheriffs and 

Walden-Ramirez to back out of the cell, Deputy Sheriff 

Williams put his legs against appellant, who had braced his 

feet on a bench attached to the cell’s wall. Appellant then 

pushed off from the bench, causing Williams’s knees to 

hyperextend. As a result, Williams suffered a torn meniscus 

in his right knee. Also injured was Walden-Ramirez, who 

was shoved into the cell’s benches and suffered bruises on 

her calves. 

Williams tried to close the cell door, but the door moved 

slowly, enabling appellant to move himself into the doorway. 

Appellant spit at Walden-Ramirez, but hit a deputy sheriff. 

A lockup sergeant then appeared and ordered the deputy 

sheriff to pepper spray appellant, which rendered him

“semicompliant.” 

At appellant’s trial on battery charges, the jury viewed 

video recordings of the pertinent events and heard testimony 

from Williams, Walden-Ramirez, and the deputy sheriff on 

whom appellant spat. The jury convicted appellant of felony 

battery on Deputy Sheriff Williams (Pen. Code, § 243, subd. 

(c)(2)), and found that appellant inflicted great bodily injury 

on him (id., § 12022.7, subd. (a)). The jury also convicted 

appellant of misdemeanor battery on Custody Assistant 

Walden-Ramirez. (Id., § 243, subd. (b).)
7

C. The Original Sentencing Hearing

In preparation for sentencing, appellant produced a 

report of his evaluation by psychologist Michelle Margules, 

Psy.D. Dr. Margules described appellant’s reported history 

of physical and sexual abuse in his childhood and treatment

for “Bipolar/Schizophrenia,” and noted that his mother

reportedly had been murdered in his youth. She reported 

that appellant told her “he struggles now with anger and 

wanting to fight with police,” and that he “acknowledged 

general anger toward law enforcement.” Dr. Margules 

diagnosed appellant with bipolar disorder and a childhood 

history of physical and sexual abuse. She concluded, 

“Regardless of Mr. Gilmore’s legal outcome, he appears to 

require mental health treatment (including a medication 

evaluation by a psychiatrist) to address anger management, 

mood disturbance and a history of trauma.” 

At the sentencing hearing, the prosecutor urged the 

court to impose the three-year upper term for appellant’s 

felony battery conviction, arguing that appellant had been “a 

danger to society for many many years.” He argued that 

appellant’s troubled history had factored into the leniency 

appellant already had received in being sentenced to 

probation on his domestic violence and witness intimidation 

convictions, and that further leniency should yield to the 

protection of the public. 

Defense counsel urged the court to impose the low 

term. Counsel observed there was “no reason to even 

characterize” appellant’s instant offenses because the court 
8

had “seen what his actions were” when it viewed the video 

recordings played at trial. Counsel nevertheless argued that 

appellant had committed the offenses while struggling with 

the deputy sheriffs, not while “criming,” and that but for the 

injury to Deputy Sheriff Williams, “a lay person would 

probably say there is no crime there.” Relying on Dr. 

Margules’s report, he argued appellant “needs help or he 

needs to be treated or moved from society.” Finally, defense 

counsel argued that appellant was facing a disproportionate 

sentence as a result of his plea deal in the domestic violence 

and witness intimidation case, in which the prosecution had 

“offer[ed] him the front door to the courtroom if he . . . t[ook] 

a five-year prior and a strike.” 

Before pronouncing sentence, the court heard from 

appellant, who expressed remorse for the incident involving 

Deputy Sheriff Williams, stating, “I don’t know what 

happened right there.” Appellant maintained that he had no 

criminal record of violence aside from his domestic violence 

conviction, which he characterized as “little stuff,” 

commenting, “Nothing happened. I just pushed her to the 

ground because she was slapping me.” He noted that he had 

taken classes on domestic violence and obtained mental 

health treatment. 

The court observed it had little discretion over the 

aggregate term other than in the selection of the base term. 

It selected the upper term, explaining, “I have taken into 

consideration, seeing Mr. Gilmore on multiple occasions, 

some days Mr. Gilmore has been very pleasant, some days 
9

not so much. Maybe that is attributed to his psychological 

history from the evaluation by Ms. Margules by his bipolar 

and manic depressive state. . . . [¶] I will also note . . . there 

were two portions in [Dr. Margules’s] report where it stated, 

one, that he struggles now with anger and wants to fight the 

police; and two, that, quote, ‘he has a general anger towards 

law enforcement,’ unquote. [¶] I am fully sympathetic as to 

his history. There [are] allegations of . . . the death of his 

mother early on, physical abuse, [and] sexual abuse as to Mr. 

Gilmore that may have contributed to his personality. The 

court can look at that as a source of mitigation. But based 

on even [appellant’s proffered] psychologist evaluation, [he]

poses a danger to society. It’s -- if he is a danger to law 

enforcement, then how is he going to be towards the regular 

citizens of the community? . . . [¶] The court also takes into 

consideration that . . . he was on probation when the crime 

was committed[;] [that] [h]is probation was unsatisfactory 

during that time; [and] that he served a prior prison term. 

All of those are circumstances that make the high term the 

appropriate term.” 

The court sentenced appellant to an aggregate term of 

14 years, comprising the three-year upper term for the 

felony battery conviction (doubled to six years under the 

Three Strikes law), a three-year enhancement for the 

infliction of great bodily injury, and a five-year enhancement 

for appellant’s prior serious felony under Penal Code section 

667, subdivision (a).
10

D. Our Prior Opinion

Appellant appealed the judgment, contending, inter 

alia, that the trial court had erred in selecting the upper 

term. He argued the court had failed to give due weight to 

his mental illness and difficult childhood, the harshness of 

the mandatory aspects of his sentence, and the consequences 

of a lengthy sentence for the possibility of his rehabilitation. 

We rejected this contention, observing that the court had 

“attended carefully to appellant’s showing of mitigating 

circumstances,” had found several aggravating factors, and 

“could reasonably have concluded that public safety was best 

served if appellant addressed his mental health issues while 

incarcerated.” We affirmed the judgment, but remanded to 

the trial court with directions to decide whether to exercise 

its newly granted discretion under S.B. 1393 to strike the 

prior-serious-felony enhancement. The remittitur issued on 

February 14, 2019. 

E. The Resentencing Hearing

On February 20, 2020, the court held a resentencing 

hearing to decide whether to strike the prior-serious-felony 

enhancement. At the outset, the court noted that it had 

reread Dr. Margules’s report and the transcript of the 

original sentencing hearing, and that it had additionally 

read several documents produced by appellant concerning 

his activities while incarcerated (including a vocational 

welding program, mental health treatment, and a “12 steps” 

program). 
11

The court heard from appellant, who described his 

activities while incarcerated and denied that he harbored

any anger against law enforcement, claiming he had never 

expressed such anger to Dr. Margules. Appellant also 

expressed remorse for the instant offenses. 

Defense counsel informed the court that appellant had 

received no discipline while incarcerated. He argued the 

video recordings of the instant offenses (which are not in the 

record) showed appellant’s conduct had been merely reckless 

rather than intended to cause injury. He observed that the 

prior-serious-felony enhancement arose from a plea deal 

appellant had accepted in order to be released on probation, 

which he characterized as a “fool’s deal,” despite 

acknowledging the same deal likely would have been struck 

had he represented appellant in the prior case. 

The prosecutor acknowledged that appellant had done 

“a good job in prison,” but argued that appellant already had 

been granted leniency in being sentenced to probation on his 

domestic violence and witness intimidation convictions, and 

that the court should not grant him further leniency by 

striking the prior-serious-felony enhancement. 

The court noted that it remembered the video 

recordings of the instant offenses. It referred counsel to its

stated rationale, during the original sentencing hearing, for 

selecting the upper term for appellant’s felony battery 

conviction, which it summarized as follows: “I stated I was 

fully sympathetic to Mr. Gilmore’s mental health history, his 

prior history of losing his mother, physical abuse, [and] 
12

sexual abuse. However, I also did consider the evaluation by 

Dr. Margules; that he was on probation; [and] that he was 

unsatisfactory during probation. For those reasons, I chose 

the high term.” Relying on “those reasons” and “that same 

rationale,” the court declined to strike the prior-seriousfelony enhancement. The court added, “I went again and 

read the report by Dr. Margules in light of what Mr. Gilmore 

stated. It looks like -- I mean talking about what making a 

positive -- being in a bad situation and being in jail or state 

prison [sic], he is [making every] effort that he can to 

advance himself, the 12 steps. He is taking classes and 

treatment. All the more reason, and to quote from the last 

page [of Dr. Margules’s report], quote, ‘Regardless of 

Mr. Gilmore’s legal outcome, he appears to require mental 

health treatment, including a medication evaluation by a 

psychiatrist to address anger management, mood 

disturbance and the history of trauma,’ unquote.” The court 

concluded that “for those reasons,” the court would not 

exercise its discretion to strike the enhancement, and 

appellant’s 14-year aggregate term would stand. 

Appellant timely appealed. 

DISCUSSION

Appellant contends the trial court abused its discretion 

in declining to strike the prior-serious-felony enhancement.3

3

The People misconstrue appellant’s contention as separate 

claims that his sentence is cruel or unusual, and that the trial 

(Fn. is continued on the next page.)
13

As appellant acknowledges, “‘a trial court does not abuse its 

discretion unless its decision is so irrational or arbitrary that 

no reasonable person could agree with it.’” (People v. 

Sperling (2017) 12 Cal.App.5th 1094, 1102, quoting People v. 

Carmony (2004) 33 Cal.4th 367, 377.)

The trial court acted within its discretion in declining 

to strike the prior-serious-felony enhancement. The court 

relied on the reasons it had articulated at appellant’s 

original sentencing hearing for imposing the upper term, 

including its finding that appellant posed a risk of danger to 

public safety. We previously found no error in the court’s

reliance on those reasons in selecting the upper term. We 

now find no error in the court’s reliance on the same reasons 

in declining to shorten appellant’s sentence by five years. 

The court’s finding that appellant posed a risk of danger to 

court failed to adequately state reasons for declining to strike the 

enhancement. The People then argue these purported claims are 

both forfeited and without merit. In reply, appellant observes 

that the People misconstrued his contention, and argues he did 

not forfeit it. 

We find no forfeiture. We directed the trial court to 

consider whether to strike the enhancement, and appellant urged 

the court to strike it, arguing largely the same grounds he 

advances on appeal. Thus, the court had an opportunity to avoid 

the asserted error in the first instance, satisfying the principal 

purpose of the forfeiture doctrine. (See, e.g., People v. Scott

(1994) 9 Cal.4th 331, 353 [“As in other waiver cases, we hope to 

reduce the number of errors committed in the first instance and 

preserve the judicial resources otherwise used to correct them”].)
14

public safety was supported by appellant’s prior conviction 

for a domestic violence offense, his failure to conform to the 

law despite serving a prior prison term and repeatedly being 

placed on probation, and his infliction of great bodily injury 

during the instant offense of battery on a peace officer. We 

conclude the court’s decision to leave the prior-serious-felony 

enhancement in place was not so arbitrary or irrational that 

no reasonable person could agree with it. (See People v. 

Shaw (2020) 56 Cal.App.5th 582, 558 [trial court acted 

within its discretion in declining to strike prior-seriousfelony enhancement under S.B. 1393, where court relied on 

frequency of defendant’s prior convictions and “stood by the 

reasons [it] had articulated at the original sentencing 

hearing,” including the serious nature of defendant’s most 

recent offense].)

Appellant insists his instant and past offenses were 

“relatively minor,” and points to his asserted rehabilitative 

efforts since the original sentencing hearing. But the trial 

court considered these matters. Moreover, we previously 

observed that the court “could reasonably have concluded 

that public safety was best served if appellant addressed his 

mental health issues while incarcerated.” This conclusion 

has not become arbitrary or irrational merely because 

appellant has received some treatment since his original 

sentencing hearing. Finally, appellant understates the 

seriousness of his criminal history, particularly with respect 
15

to his convictions for abusing the mother of his children and 

dissuading her from testifying.4

In sum, the trial court’s decision not to shorten 

appellant’s sentence by five years was not so irrational or 

arbitrary that no reasonable person could agree with it. 

Thus, the court acted within its discretion in declining to 

strike the prior-serious-felony enhancement.

4 While appellant argues his sentence of probation on his 

domestic violence and witness intimidation convictions

demonstrates that the People and the court did not deem them

serious, his argument overlooks the fact that he was sentenced to 

probation pursuant to a plea deal. As appellant’s counsel 

acknowledged at both sentencing hearings, that deal carried 

consequences for any subsequent conviction, including imposition 

of the prior-serious-felony enhancement (which the court then

lacked discretion to strike). On the record before us, a reasonable 

person could agree with the trial court’s decision to hold 

appellant to the expected consequences of his bargain. (Cf. 

People v. Arnold (2004) 33 Cal.4th 294, 308 [where defendant 

enters plea deal pursuant to which he receives probation and 

waives custody credits, application of credits to defendant’s 

prison term upon revocation of probation would be “unjust 

enrichment, as the defendant would be getting the benefit of the 

bargain reached at his original sentencing and later be permitted 

to revoke the consideration he gave up to obtain the benefit of 

that bargain”].) 
16

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.