1

Filed 8/28/23 P. v. Sandwell CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Placer)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RONALD EUGENE SANDWELL,

Defendant and Appellant.

C096795

(Super. Ct. No. 62146616)

A jury found defendant Ronald Eugene Sandwell guilty of felony evading a peace 

officer. (Veh. Code, § 2800.2.) (Statutory section citations that follow are found in the 

Vehicle Code unless otherwise stated.) The trial court found true allegations that 

defendant had been convicted of multiple serious or violent felonies for purposes of the 

Three Strikes law, and it imposed an indeterminate sentence.

Defendant contends the trial court prejudicially erred by: (1) admitting evidence 

of a similar evasion he committed after this offense; (2) not giving a unanimity 

instruction; (3) allowing the prosecution to amend the information’s prior conviction 

allegations after the jury had been dismissed when the original information allegedly did 

not notify defendant of his exposure to an indeterminate sentence; and (4) denying his 

motion to strike the prior strike allegations.
2

We affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS

A. Prosecution case

Roseville police officers stopped defendant near Atkinson Street late on the night 

of February 15, 2016. He was driving a Chevy Impala with an expired registration. 

Defendant turned the car off. He told the officers the registration was expired because he 

had recently purchased the car. He gave one of the officers the car’s pink slip and other 

paperwork from the purchase. 

During this exchange, the second officer saw what appeared to be a baseball-sized 

bag of methamphetamine under defendant’s leg. The officer told the first officer to pull 

defendant out of the car. The first officer asked defendant to step outside the vehicle, but 

defendant started the car and sped away. The Impala’s tires screeched as defendant drove 

away westbound on Atkinson Street. The officers stepped back to avoid being hit. 

The officers sprinted back to their car and gave pursuit with the car’s flashing 

lights and siren on. Westbound Atkinson Street becomes PFE Road. The speed limit on 

Atkinson Street/PFE Road is 45 miles per hour. The officers were going 85 miles per 

hour, and defendant was going faster than that. The second officer testified their vehicle 

reached 90 miles per hour. He estimated defendant reached over 100 miles per hour 

immediately after he took off, and he maintained that speed throughout the pursuit.

Defendant ran three stop signs while being pursued. He ran the stop signs at PFE 

Road’s intersections with Antelope Road, Cook Riolo Road, and Pinehurst Drive. After 

chasing defendant for nearly three miles, the officers ended the pursuit between PFE 

Road’s intersections with Pinehurst Drive and Walerga Road, the next major intersection, 

because they had lost sight of the Impala’s taillights. 

Approximately eight months later, Sacramento police officers apprehended 

defendant after a high-speed chase. On the evening of October 8, 2016, the officers saw 
3

a silver Maserati driven by defendant that had no front license plate. They attempted to 

make a vehicle stop, but defendant speeded up. He drove recklessly. At one point, he 

drove into oncoming traffic. He drove into the bicycle lane to pass cars. The officers 

pursued defendant at 99 miles per hour, but defendant pulled away from them. One 

officer estimated defendant was traveling at well over 100 miles per hour. The officers 

ended the pursuit for safety reasons. 

Later that evening, the officers received a dispatch that the Maserati had crashed. 

Defendant was eventually located and arrested. In an interview with Sacramento police 

officers, defendant stated, “I seen you turn and I knew you were gonna get on me [¶] . . . 

[¶] I got up to 145 on the freeway but uh I will try to drive fast. I figure at the next turn, 

imma lose you and I did.” 

B. Defense

Defendant testified on his own behalf. He admitted that for the Sacramento 

incident, he was convicted of felony evading and for being a felon in possession of a 

firearm and ammunition. (§ 2800.2; Pen. Code, §§ 20800, 30305.) At the time of the 

Sacramento incident, defendant knew there was a warrant out for his arrest for the 

Roseville incident. When the Sacramento officers began following him, he decided, 

“ ‘I’m going for it. I’m going to run.’ ” He passed two cars while driving in the bicycle 

lane. He denied driving in the opposite lane of traffic. He admitted driving at 100 miles 

per hour in a 45-miles-per-hour speed limit zone and that driving at that speed was 

reckless. He admitted crashing the Maserati. He admitted running from the police and 

being arrested after crashing the car. 

Defendant testified that during his interview with Sacramento police, he told the 

officers he ran from them because there was a warrant out for his evading police in Placer 

County in his Impala. He also told the officers that in the Placer County chase, he spun 

out while trying to turn onto Walerga Road. Defendant asserted he made that statement
4

to the officers because his buddy had heard on a police scanner that the high-speed chase 

ended on Walerga Road. 

Testifying about the Roseville incident, defendant stated that at the time of that 

chase, he was driving to his buddy’s in Roseville to drop off a saw. He pulled over after 

seeing the police lights behind him. He turned off the car, and he handed the paperwork 

to the first officer. The second officer then said to pull defendant out of the car, and he 

yelled the command a second time. Defendant was shocked by the officer’s tone of voice 

and did not know why he was yelling. He did not have anything under his leg. He 

started the car, put it in gear, and took off. 

Defendant testified he did not drive to Walerga Road during the chase. He 

decided to turn onto a side street to lose the officers. He turned left onto March Road and 

stopped the car. When heading westbound on Atkinson Street/PFE Road, March Road 

intersects with PFE Road before the Antelope Road intersection. Officers testified the 

first stop sign defendant ran was at the Antelope Road intersection. After defendant saw 

the officers drive past March Road, he drove back onto Atkinson Street/PFE Road and 

headed east toward his buddy’s house. Defendant admitted he had been speeding, but he 

denied committing any other Vehicle Code violations, including running the three stop 

signs. 

C. Rebuttal

One of the Roseville officers that pursued defendant testified on rebuttal that he 

never saw defendant’s car brake or slow down during the pursuit. He never saw the 

Impala turn left onto March Road. He heard and saw the Impala continue on PFE Road 

past March Road and go through the three stop signs. 
5

D. Verdict and sentence

The jury found defendant guilty of felony evading a peace officer in willful 

disregard for safety. (§ 2800.2.) The trial court found true allegations that defendant had 

been convicted of eight serious or violent felonies for purposes of Three Strikes. 

The trial court denied defendant’s Romero motion to strike the serious priors. 

(People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) It sentenced defendant to a 

prison term of 25 years to life. 

DISCUSSION

I

Admission of Other Crimes Evidence

The trial court admitted evidence of the Sacramento car chase and arrest under 

Evidence Code section 1101, subdivision (b) for establishing defendant’s intent and a 

common design or plan in the Roseville incident. The court found that the evidence was

not unduly prejudicial under Evidence Code section 352. 

Defendant contends the Sacramento incident did not demonstrate the existence of 

a common design or plan. He provides no further argument on this point in his opening 

brief. His lack of argument forfeits the issue on appeal. (Allen v. City of Sacramento

(2015) 234 Cal.App.4th 41, 52.)

Defendant further contends the trial court committed prejudicial error by admitting 

the Sacramento incident evidence to establish intent. He does not claim the evidence was 

too dissimilar to be admitted under Evidence Code section 1101, subdivision (b). Rather, 

he claims his intent was not at issue and the evidence was cumulative. 

Section 2800.2, the felony evading statute under which defendant was convicted, 

prohibits evading a pursuing peace officer with willful or wanton disregard for the safety 

of persons or property. (§ 2800.2, subd. (a).) Willful or wanton disregard for safety 
6

includes, but is not limited to, committing three or more traffic violations while fleeing 

which are assigned a traffic violation point count. (§ 2800.2, subd. (b).) 

Defendant argues that if the jury believed he fled from Roseville police as far as 

Walerga Road and ran three stop signs, his guilty intent was established under the terms 

of the statute. But if the jury believed defendant turned onto March Road, stopped his 

car, and then returned to Roseville, defendant asserts there was a reasonable argument he 

did not drive recklessly or commit a felony evading. He claims there was no middle 

ground from which the jury could conclude defendant committed felony evading without 

the requisite criminal intent. And he argues the issue was factual, and his presumed or 

inferred state of mind played no role in the jury’s decision. Finally, he says evidence of 

the Sacramento incident was cumulative and thus irrelevant on the issue of intent. 

Defendant relies on People v. Balcom (1994) 7 Cal.4th 414 (Balcom). In Balcom, 

the prosecution argued that evidence showing the defendant had committed rape in 

Michigan two months after committing the charged rape in California and had done so in 

a similar manner was admissible to establish intent for the charged rape. (Id. at p. 421.) 

The California Supreme Court disagreed. It found that the other-crime evidence had 

“limited probative value” on the issue of intent which was “outweighed by the substantial 

prejudicial effect of such evidence.” (Id. at p. 423.) 

The Balcom court acknowledged that the defendant’s not guilty plea placed all 

elements of the charged crime at issue, including intent. (Balcom, supra, 7 Cal.4th. at 

pp. 422-423.) But given the facts presented—the victim testified defendant raped her 

after placing a gun to her head, while the defendant conceded the two had sex but 

claimed it was consensual and did not involve a gun or force—the “wholly divergent 

accounts create[d] no middle ground from which the jury could [have] conclude[d] that 

defendant committed the proscribed act of engaging in sexual intercourse with the victim 

against her will by holding a gun to her head, but lacked criminal intent because, for 

example, he honestly and reasonably, but mistakenly, believed she voluntarily had 
7

consented.” (Id. at p. 422.) Because the victim’s testimony of being raped at gunpoint, if 

believed, established the requisite intent, admitting evidence of the defendant’s 

uncharged similar offenses would be cumulative on that issue. (Id. at p. 423.)

The circumstances here are different than those in Balcom. Unlike in Balcom, 

where the evidence left “no middle ground” for the jury between a finding of rape with 

the requisite intent and a finding of not guilty (Balcom, supra, 7 Cal.4th at p. 422), the 

evidence of defendant’s intent was not so unambiguous that the trial court could conclude 

the prosecution, in essence, was relieved of proving the element of defendant’s unlawful 

intent.

To establish defendant violated section 2800.2, the prosecution had to prove 

defendant (1) willfully fled a pursuing peace officer’s vehicle with the intent to evade, 

and (2) drove his vehicle “in a willful or wanton disregard for the safety of persons or 

property.” (§ 2800.2, subd. (a); People v. Taylor (2018) 19 Cal.App.5th 1195, 1201.) 

Under the statute, the prosecution could establish defendant drove in willful or wanton 

disregard for the safety of persons or property by showing he either drove in a manner 

manifesting the mental state required to commit reckless driving in violation of 

section 23103 or, alternatively, he committed three or more traffic violations that are 

assigned traffic violation points. (§ 2800.2, subd. (b); Taylor, at p. 1203.)

The prosecution argued to the jurors that some of them could agree defendant 

drove in willful or wanton disregard, and the others could agree defendant committed 

three or more traffic violations during the chase. Unanimity was not required on either of 

these elements; each juror had to find at least one of them true. 

Thus, if the jury agreed with defendant that he did not run the three stop signs and 

instead turned onto March Road, acquittal was not the jury’s only choice. Defendant’s 

claim—if he did not run the stop signs, he did not commit felony evading—is incorrect. 

The jury could still convict defendant for felony evasion by his driving recklessly in 

violation of section 23103 from the moment he drove away from the vehicle stop.
8

There was substantial evidence that defendant harbored the intent to commit 

reckless driving. He took off fast. His tires screeched when the officers were mere 

inches from his car, causing the officers to jump back to avoid being hit. As the pursuit 

began, the officers were about a quarter mile behind him. The posted speed limit at that 

point was 45 miles per hour. As the officers reached the point where Atkinson Street 

turned into PFE Road, their car was going 85 or 90 miles per hour, and defendant was 

pulling away from them, as he had been the entire pursuit. The second officer estimated 

defendant was traveling at over 100 miles per hour and had reached that speed 

immediately after he took off. 

Because reckless driving was an alternate set of facts to establish defendant’s 

intent, his intent remained at issue even if he did not run the three stop signs. Hence,

evidence of the Sacramento incident was relevant to establishing defendant’s intent by 

showing defendant harbored the same intent in the Sacramento incident as he did in the 

Roseville incident. The evidence was not cumulative “because the balance of the 

evidence does not render [defendant’s] intent and actions beyond dispute.” (People v. 

Foster (2010) 50 Cal.4th 1301, 1331.)

Defendant nonetheless claims the trial court erred by determining evidence of the 

Sacramento incident was not unduly prejudicial under Evidence Code section 352. 

Defendant does not argue the point on its merits. Rather, he argues that despite the 

court’s giving the jury a limiting instruction on how they could use the evidence, the jury 

likely used the evidence as propensity evidence in violation of Evidence Code 

section 1101, subdivision (a). Defendant cites no evidence in the record that would 

support this argument. 

The court instructed the jurors that they could use the evidence only for the limited 

purpose of establishing intent or common scheme or plan. With no evidence to the 

contrary, we presume the jury followed the instruction. (People v. Washington (2017) 

15 Cal.App.5th 19, 26.) The trial court did not abuse its discretion admitting evidence of 
9

the Sacramento incident because the evidence demonstrated defendant’s intent and the 

existence of a common design or plan, it was not cumulative on the issue of intent, and, 

without evidence to the contrary, the jury is deemed to have complied with the court’s 

limiting instruction.

II

Lack of Unanimity Instruction

A criminal jury must unanimously agree the defendant is guilty of a specific 

crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Generally, if the prosecution 

introduces evidence of multiple discrete crimes to prove a single count, either the 

prosecution must elect among the crimes or the trial court must instruct the jury to agree 

on the same criminal act. (Ibid.) 

Defendant contends the trial court erred by denying his request for a unanimity 

instruction. He argues a unanimity instruction was required because under 

section 2800.2, willful or wanton disregard for the safety of persons or property can be 

established by showing alternative crimes based on competing theories—reckless driving 

or three or more traffic violations. Although defendant asserts the jury would not have 

convicted him of felony evasion if they believed he did not run the three stop signs during 

the pursuit, a point we dispute, he claims jury unanimity was necessary because there 

were two competing factual scenarios supported by separate legal theories. 

The trial court did not err in rejecting defendant’s request for a unanimity 

instruction. A unanimity instruction is appropriate “ ‘when conviction on a single count 

could be based on two or more discrete criminal events,’ but not ‘where multiple theories 

or acts may form the basis of a guilty verdict on one discrete criminal event.’ ” (People 

v. Russo, supra, 25 Cal.4th at p. 1135.) The instruction is not required when the evidence 

“merely presents the possibility the jury may divide, or be uncertain, as to the exact way 

the defendant is guilty of a single discrete crime.” (Ibid.)
10

Defendant’s discrete criminal event was his unlawful flight from Roseville police. 

The flight was continuous and not broken into discrete criminal events. The individual 

offenses defendant committed during the pursuit—running three stop signs, speeding, and 

possibly reckless driving—were the basis for satisfying section 2800.2’s element of 

willful or wanton disregard for safety of persons or property, not separate chargeable 

offenses under section 2800.2. Divisions by the jury over these predicate crimes would 

be disagreements on the manner defendant evaded police in willful or wanton disregard 

of safety, not discrete criminal events of felony evasion.

Our reasoning mirrors that of People v. Varela (2011) 193 Cal.App.4th 1216 and 

People v. Datt (2010) 185 Cal.App.4th 942, opinions the trial court relied on to reject 

defendant’s request for a unanimity instruction. The defendants in both cases were 

convicted of felony evasion under section 2800.2. In Varela, the defendant, while 

evading police on a “pocket bike,” did not stop at stop signs, failed to signal before 

turning, and drove on the wrong side of the road and on the sidewalk. (Varela, at 

p. 1218.) In Datt, the evading defendant disregarded multiple stop signs and two stop 

lights, broke traction with the asphalt, drove on the shoulder, twice drove in the opposite 

lane of traffic, and drove at speeds between 45 and 100 miles per hour in a 25-mile-perhour zone. (Datt, at p. 945.) Both defendants argued their juries had to agree 

unanimously on which traffic law violations were the predicate offenses under 

section 2800.2. (Varela, at p. 1220; Datt, at p. 949.)

Both Courts of Appeal disagreed with the defendants. A unanimity instruction 

was not required “merely because the jury may be divided on the exact way the defendant 

may be guilty of the charged count. [Citation.] Here the evidence shows but a single 

violation of section 2800.2. No unanimity instruction is required simply because the jury 

may not have agreed on the predicate violations.” (People v. Varela, supra, 

193 Cal.App.4th at p. 1220.) “[N]o unanimity instruction was required because the 

predicate violations were simply alternate ways of proving a necessary element of the 
11

charged offense.” (Ibid.) “The different Vehicle Code violations upon which the ‘willful 

or wanton’ element could have been premised were simply ‘alternate ways of proving’

that element, not separate chargeable offenses of reckless evading.” (People v. Datt, 

supra, 185 Cal.App.4th at p. 950.)

Defendant contends Varela and Datt do not apply because there were two distinct 

criminal events which could have supported his conviction—either the officer’s scenario 

of running three stop signs and speeding, or defendant’s scenario of just speeding. 

Defendant claims the latter scenario, if relied on by the jury, was a different offense than 

that described by the Roseville officers. 

The argument fails. No matter which scenario the jurors found true—reckless 

driving or traffic violations—both scenarios were alternate ways of proving the single

element of willful or wanton disregard of safety. “Juror unanimity is not required simply 

because different theories of liability are presented.” (People v. Napoles (2002) 

104 Cal.App.4th 108, 115, fn. 5.)

Another related point of law justifies the trial court’s decision not to give a 

unanimity instruction. A court is not required to give a unanimity instruction if the crime 

constitutes a continuous course of conduct. (People v. Maury (2003) 30 Cal.4th 342, 

423.) This occurs when, among other times, “ ‘the acts are so closely connected that they 

form part of one and the same transaction, and thus one offense.’ ” (People v. Napoles, 

supra, 104 Cal.App.4th at p. 115.) 

In that circumstance, this exception applies if the defendant tenders the same 

defense or defenses to each act closely connected in time and there is no reasonable basis 

for the jury to distinguish between them. (People v. Crandell (1988) 46 Cal.3d 833, 875, 

abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365; 

People v. Datt, supra, 185 Cal.App.4th at p. 951.)

The court in Datt ruled that this exception applied to its facts, and we agree the 

exception applies here. (People v. Datt, supra, 185 Cal.App.4th at p. 951.) Defendant’s 
12

acts were committed during the pursuit, which lasted for only 2.8 miles at speeds over 90

miles per hour. There was no reasonable basis for the jury to distinguish between the 

various violations. They all occurred during one dangerous short drive. And defendant’s 

defense was the same as to all the acts—he was afraid of the tone of voice taken by the 

officers when they demanded he get out of the car, and he did not run the stop signs 

because he turned off early. The trial court was not required to give a unanimity 

instruction under these circumstances.

III

Notice of Exposure to Indeterminate Sentence

Generally, a defendant who has two or more strike priors and whose current 

offense is not a serious or violent felony is sentenced under the Three Strikes law to twice 

the term provided for punishment of the current offense, as if the defendant had only one 

strike prior. (Pen. Code, § 667, subd. (e)(2)(C), (e)(1).) But if the prosecution pleads and 

proves the defendant was previously convicted of certain sexually violent offenses

(“super strikes”), the defendant is sentenced to the third strike sentence of an 

indeterminate life term with a minimum term that is the largest of three possible 

sentences, which in this case was an indeterminate term of 25 years to life. (Pen. Code, 

§§ 667, subd. (e)(2)(A), (e)(2)(C)(iv)(I); 1170.12, subd. (c)(2)(A), (c)(2)(C)(iv)(I).) 

Some of defendant’s prior convictions were super strike sexually violent offenses. 

Although the information alleged defendant was eligible for a sentence under the Three 

Strikes law, the prosecution sought leave to amend the information following the jury’s 

verdict and after the jury was discharged to allege the super strike provisions under which 

defendant qualified for the indeterminate term. The trial court granted the prosecution’s 

motion and sentenced defendant to the indeterminate term.

Defendant contends he was denied his due process right to notice in these 

circumstances of the laws under which he would be sentenced.
13

A. Background

The original information alleged that defendant had previously been convicted of 

nine separately identified serious or violent felonies for purposes of the Three Strikes law

under Penal Code section 667, subdivisions (b) through (i), and section 1170.12, 

subdivisions (a) through (d). The information alleged that in 1980, defendant was 

convicted of one count of robbery. (Pen. Code, § 211.) The information also alleged that 

in 1985, defendant was convicted of assault with a deadly weapon, forcible sexual 

penetration while armed with a firearm, forcible rape in concert while armed with a 

firearm, forcible sodomy while armed with a firearm, two counts of robbery while armed 

with a firearm, attempted forcible rape in concert, and attempted forcible sodomy in 

concert. (Pen. Code, §§ 245, subd. (a)(1); 289; 264.1; 211; 664/264.1; 664/286, 

subd. (d).) 

For jury selection, each side was given 20 peremptory challenges due to the 

sentencing exposure. During pretrial matters, the prosecutor stated defendant was being 

charged with “a life crime.” The prosecutor also said defendant “knows that he’s doing a 

life sentence, and he knows that he’s pending another life sentence here.” 

Following the jury’s verdict, defendant waived his right to a jury trial on the 

bifurcated strike prior allegations. The court discharged the jury. 

The prosecutor then moved to amend the information. The proposed amendment 

reduced the number of strike priors to eight, deleting the alleged conviction of forcible 

sodomy while armed with a firearm. Otherwise, it charged the same strike priors that 

were alleged in the original information pursuant to Penal Code sections 667, 

subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). 

The proposed amendment also alleged that defendant was eligible for a Three 

Strikes life sentence under Penal Code sections 667, subdivision (e)(2)(C)(iv)(I) and 

1170.12, subdivision (c)(2)(C)(iv)(I), the super strike provisions. Defendant’s prior 
14

convictions under Penal Code sections 264.1, 286, and 289 qualified as sexually violent 

offenses for purposes of this exception. (Pen. Code, § 667, subd. (e)(2)(C)(iv)(I); Welf. 

& Inst. Code, § 6600, subd. (b).)

Initially, the parties agreed that the prosecutor could make the motion to amend 

orally at the beginning of the bifurcated trial. But to avoid confusion, the prosecutor 

asked the court for time to file a written motion, and the court agreed. The court said that 

if defendant then wanted to object to the motion, it would hear the argument. 

At the hearing on the motion, defendant objected. He planned to ask the court at 

sentencing to sentence defendant as a two-strike defendant under Penal Code section 667, 

subdivision (e)(1), so he would be asking the court essentially to strike the amendment to 

the information. Defendant argued that new legislation effective the following year 

would give the court more discretion to strike serious priors, so the court might not want 

to restrict itself in sentencing just to the statute alleged in the amendment. 

The prosecutor argued in effect that even without the amendment, the Three

Strikes sentence would still be alleged because the information alleged defendant 

suffered serious priors under Penal Code section 667, subdivisions (b) through (i), which 

included the super strike provisions. That allegation would also include sentencing 

defendant on any other applicable provision of the Three Strikes law if the court so 

found. The prosecutor proposed the amendment to ensure the proper code section for 

sentencing was specifically alleged. Defendant had been aware the entire time this case 

was a life case, as evidenced by the number of preemptory challenges the parties had at

jury selection. 

The trial court granted the motion to amend, and the court trial proceeded. The 

court found defendant had been convicted of the eight serious priors alleged in the 

amended complaint within the meaning of the Three Strikes law, including Penal Code 

sections 667, subdivision (e)(2)(C)(iv) and 1170.12, subdivision (c)(2)(C)(iv), the super 

strike provisions. 
15

The court sentenced defendant to 25 years to life. The sentence is consecutive to 

defendant’s sentence for the Sacramento incident of 50 years to life. 

B. Analysis

Defendant contends the information did not provide him with adequate notice that 

the prosecution would seek the third strike indeterminate sentence against him. He 

argues that although the original information properly pleaded his prior strikes and the 

sentence-doubling consequence, it did not expressly allege the statutes under which his 

priors qualified as super strikes and which subjected him to the third strike sentence. The 

amended information, which expressly alleged the super strike exception, was not filed 

until after the verdict and after the jury was discharged. And any awareness defendant 

may have had during trial that the prosecution was seeking an indeterminate term was 

inadequate without the express allegation in the information. 

Although the Attorney General contends defendant has forfeited this argument by 

not objecting at trial on the ground he raises here, we choose to address the merits of his 

argument because if he is correct, his sentence is unauthorized.

“A defendant has a due process right to fair notice of the allegations that will be 

invoked to increase the punishment for his or her crimes.” (People v. Houston (2012) 

54 Cal.4th 1186, 1227; see People v. Mancebo (2002) 27 Cal.4th 735, 747.) The Three 

Strikes law sets forth what constitutes fair notice that the prosecution seeks a third strike 

sentence even though the current offense is not a strike. The prosecution must plead and 

prove (1) the defendant has two or more prior strikes; and (2) “ ‘any’ of the exceptions to 

second strike sentencing eligibility listed in subdivision (e)(2)(C)(i) through (iv) apply.” 

(People v. Tennard (2017) 18 Cal.App.5th 476, 486.)

These requirements do not obligate the prosecution to plead the specific 

subsection under which the current nonstrike offense will be sentenced as a third strike. 

“The plain language of section 667, subdivision (e)(2)(C) only requires the prosecution to 
16

‘plead and prove’ that ‘any’ of the exceptions to second strike sentencing eligibility set 

forth in subparagraphs (i) through (iv) apply. Neither subdivision (e)(2)(C) nor any other 

part of section 667 requires the prosecution to specifically ‘plead and prove’ that an 

exception applies by using any particular language or by referencing the particular 

subparagraph of the exception or disqualifying factor.” (People v. Tennard, supra, 

18 Cal.App.5th at p. 486.)

The original information met this standard. It identified prior strike convictions 

for Penal Code sections 264.1, 286, and 289 which qualified as super strikes, and it 

referred to Penal Code sections 667, subdivisions (b) through (i) and 1170.12, 

subdivisions (a) through (d). These allegations were sufficient to satisfy the statute’s 

pleading and proof requirements because they put defendant on notice that his prior 

convictions could be used as the basis for three strikes sentencing. A specific reference 

to section 667, subdivision (e)(2)(A) or (C) was not required.

Defendant contends the information was inadequate under the holdings of People 

v. Mancebo, supra, 27 Cal.4th at pages 744-745, People v. Nguyen (2017) 

18 Cal.App.5th 260, 266, and People v. Saywers (2017) 15 Cal.App.5th 713, 723. These 

cases are distinguishable. In each case, the statutory enhancements used as a basis for 

imposing an enhanced sentence were either not alleged at all or were insufficiently 

alleged. (See Mancebo, at pp. 738-739, 742-745 [unalleged multiple-victim circumstance 

enhancement could not be basis for imposing “one strike” sentence despite the pleaded 

facts]; Nguyen, at pp. 262-263 [strike prior alleged as strike but not as a serious prior 

enhancement could not be basis for imposing the latter enhancement]; Saywers, at 

pp. 726-727 [information did not allege prior conviction as a strike].)

In addition to his understanding from the original information, defendant knew he 

was facing a possible indeterminate sentence when trial commenced. Because of his 

sentencing exposure, each side was given 20 peremptory challenges for jury selection. 

The prosecutor also stated at least twice that defendant was facing a life sentence. These 
17

facts, along with the allegations in the information, establish that defendant received fair 

notice of his possible third strike sentence.

IV

Denial of Romero Motion

Defendant challenges the trial court’s denial of his Romero motion to dismiss his 

strike priors. (Pen. Code, § 1385, subd. (a).) He states the trial court’s analysis was 

correct in a number of respects. The court correctly found that although he has a history 

of violence, the violence has not increased in seriousness since 1985. The court also 

correctly gave great weight to the nonviolent nature of the current offense, the fact that 

his strike priors were over five years old, and the fact that the 1980 robbery adjudication 

occurred when defendant was a juvenile. 

Defendant argues the trial court abused its discretion by not giving proper weight 

to other relevant sentencing factors. He claims the court (1) misconstrued his future 

prospects to his detriment; (2) did not consider the remoteness of his strike priors; and 

(3) decided incorrectly not to apply Penal Code section 1835, subdivision (c)(2)(C), 

which requires courts to dismiss any “enhancement” that results in a sentence of over 20 

years. 

We review the trial court’s denial of a motion to strike a prior conviction under the 

deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 

374.) The defendant must show that the court’s decision was “so irrational or arbitrary 

that no reasonable person could agree with it.” (Id. at p. 377.) 

“A trial court deciding, or appellate court reviewing the decision, whether to strike 

a prior felony conviction allegation under [Penal Code] section 1385, subdivision (a), 

‘must consider whether, in light of the nature and circumstances of his present felonies 

and prior serious and/or violent felony convictions, and the particulars of his background, 

character, and prospects, the defendant may be deemed outside the scheme’s spirit, in 
18

whole or in part, and hence should be treated as though he had not previously been 

convicted of one or more serious and/or violent felonies.’ (People v. Williams (1998) 

17 Cal.4th 148, 161 [].) ‘[T]he circumstances must be “extraordinary . . . by which a 

career criminal can be deemed to fall outside the spirit of the very scheme within which 

he squarely falls . . . .” ’ ([People v.] Carmony, supra, 33 Cal.4th at p. 378.) As such, in 

reviewing the trial court’s decision, ‘the circumstances where no reasonable people could 

disagree that the criminal falls outside the spirit of the three strikes scheme must be even 

more extraordinary.’ (Ibid.)” (People v. Mendoza (2022) 74 Cal.App.5th 843, 856-857.)

Two of the factors that defendant contends the trial court did not properly weigh, 

remoteness of his strikes and his sentence exceeding 20 years, arise under Penal Code 

section 1385, subdivision (c) (subdivision (c)). This subdivision lists a number of 

mitigating factors a court must consider before imposing an enhancement. Our court has 

held that subdivision (c)’s provisions do not apply to Three Strikes sentencing, as prior 

convictions are not enhancements. (People v. Burke (2023) 89 Cal.App.5th 237, 244.)

Nonetheless, had subdivision (c) applied, the trial court did not abuse its discretion 

in its consideration of those factors. The court considered that defendant’s strike priors 

were remote by being over five years old and that his 1980 robbery prior occurred when 

defendant was a juvenile. (Pen. Code, § 1385, subd. (c)(2)(G), (H).) The court also gave 

great weight to these facts. It did not abuse its discretion in its analysis or application of 

these factors.

The trial court also did not abuse its discretion concerning the fact defendant’s 

sentence would be more than 20 years. Under subdivision (c), the fact that applying the 

enhancement could result in a sentence of over 20 years is a factor entitled to great 

weight in favor of dismissing the enhancement. (Pen. Code, § 1385, subd. (c)(2)(C).) 

Although the statute states that in such an instance, the enhancement must be dismissed, 

the trial court interpreted the provision as not eliminating the court’s discretion. 
19

Defendant asserts the trial court erred in claiming discretion not to apply the 20-

year provision. He is incorrect. The factor is a mitigating circumstance for the court to 

consider in exercising its discretion to strike an enhancement in furtherance of justice. It 

need not be considered when the court finds dismissing the enhancement would endanger 

public safety. (People v. Lipscomb (2022) 87 Cal.App.5th 9, 18-19.) The trial court 

correctly interpreted the provision and, as required by the statute, gave the factor great 

weight. It did so even though it ultimately found that dismissing the strike allegations 

would endanger public safety. 

Finally, defendant contends the trial court misconstrued his “future prospects” 

because it misapprehended the length of his sentence for the Sacramento incident. His 

probation report, which the trial court considered, stated his Sacramento sentence was 25 

years to life, when in fact it was 50 years to life. Defendant claims that as a result, the 

“net effect” of the life sentence in this matter was greater than the court recognized. 

Defendant argues the trial court would have been justified in striking the prior 

convictions in this case because they had been accounted for in the Sacramento case. 

That sentence already made it unlikely defendant would ever return to society, and if he 

did, his prospects for committing future offenses would be significantly diminished. 

The trial court did not abuse its discretion in the manner it considered defendant’s 

future prospects. The trial court was not unaware of defendant’s sentence in the 

Sacramento incident. The prosecutor’s sentencing briefs, which the court read and 

considered, correctly stated that defendant’s Sacramento sentence was 50 years to life. 

Moreover, the court considered defendant’s future prospects as a law-abiding and 

contributing member of society, not just whether his prospects for committing offenses in 

the future would be diminished. It stated that although defendant wanted to become a 

productive member of society, his prospects for a stable, crime-free life were “difficult” 

due to his history of criminal convictions and incarceration, which extended beyond his 

strike priors. Defendant had some prospect of employment because he had prior 
20

experience in the sandblasting business, but his prospects would be limited due to his 

criminal history. By conducting this analysis, the trial court did not abuse its discretion 

in analyzing defendant’s future prospects as part of ruling on defendant’s Romero

motion.

DISPOSITION

The judgment is affirmed.

 

HULL, Acting P. J.

We concur:

 

ROBIE, J.

 

HORST, J.*

*

 Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.