Filed 7/27/21 P. v. Palmer CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE OF THE STATE 

OF CALIFORNIA,

Plaintiff and Respondent,

v.

SAMUEL DWAYNE PALMER,

 Defendant and Appellant.

2d Crim. No. B308952

(Super. Ct. No. MA071018)

(Los Angeles County)

Appellant Samuel Dwayne Palmer was convicted of 

attempted willful, deliberate and premeditated murder (Pen.

Code,

1 §§ 187, subd. (a), 664), shooting at an inhabited dwelling 

(§ 246), being a felon in possession of a firearm (§ 29800, subd. 

(a)(1)), and unlawful possession of ammunition (§ 30305, subd. 

(a)(1)). The jury found true an allegation that appellant

personally discharged a firearm in committing the attempted 

1 Unless otherwise noted, all statutory references are to the 

Penal Code.
2

murder (§ 12022.53, subds. (b), (c)), and he admitted having a 

prior serious felony conviction that also qualified as a strike (§§

667, subds. (a)(1), (b)-(j), 1170.12, subds. (a)-(d)). The trial court 

sentenced him to an aggregate term of 14 years to life plus 25

years in state prison, which includes a five-year prior serious 

felony enhancement pursuant to section 667, subdivision (a)(1). 

In appellant’s prior appeal from the judgment, we 

remanded for the trial court to decide whether to exercise its 

discretion to strike the five-year prior serious felony 

enhancement in the interests of justice pursuant to Senate Bill 

No. 1393, which went into effect on January 1, 2019. (People v. 

Palmer (Sept. 25, 2019, B289617 [nonpub. opn.].) Following a 

hearing on remand, the trial court declined to exercise its 

discretion to strike the enhancement. Appellant contends the 

court’s ruling amounts to an abuse of discretion. We affirm. 

STATEMENT OF FACTS2 

On the night of April 14, 2017, Gregory Robinson’s family 

held a going away party for him at the Palmdale home of his 

girlfriend Andrea Burton. Appellant, a member of the Harlem 

Crip Rolling 30’s gang, came to the party uninvited along with 

his adult son Samuaje. Appellant was in the front yard drinking 

alcohol when his girlfriend Moneak Johnson arrived. As soon as 

Johnson entered the front yard, appellant began hitting her in 

the face and chest. 

Burton asked appellant to leave but he refused. Appellant 

continued to hit Johnson and eventually knocked her to the 

2 We reiterate verbatim the facts set forth in our prior 

unpublished opinion, of which we take judicial notice. (Evid. 

Code, §§ 452, subd. (a), 459, subd. (a); Cal. Rules of Court, rule 

8.1115(b).)
3

ground. Robinson’s brother-in-law David tried to help Johnson 

up and appellant swung at him. Robinson pushed appellant and 

told him to “take that back around the corner.” Appellant 

became aggressive toward Robinson and Robinson hit him, 

causing him to fall. Samuaje intervened and hit Robinson in the 

eye.

Appellant said that he was going to get a gun and ran 

away. As Robinson was telling Samuaje to follow appellant and 

stop him from returning, a gunshot rang out. Samuaje said, “Oh, 

that’s my dad” and took off running. Robinson saw appellant 

coming around the corner with a gun and told everyone to go in 

the house and get on the ground. Robinson retrieved his gun and 

ammunition from the house, went back outside, knelt behind a 

tree, and saw appellant crawling on the ground toward a truck 

parked across the street. Appellant got behind the truck, pointed 

his gun toward Burton’s house, and asked, “Where you at?” 

Robinson replied, “I’m right here. There’s kids in the house.”

Appellant started shooting and Robinson fired one shot in return. 

When police sirens could be heard approaching, appellant 

stopped firing his weapon and ran away.

Eight .40-caliber casings were recovered from the scene of 

the shooting and bullet strikes were found on Burton’s fence, the 

stucco near the front door, and two vehicles parked in front of the 

residence. Appellant’s jacket, bandana, and cell phone were 

found on a wall in the yard. 

Johnson told the police appellant was staying at her 

residence about two blocks away and had recently brought a .40-

caliber Glock into the house. Johnson did not want the gun in 

her house so appellant put it in his car. In searching Johnson’s 

house the morning after the shooting, the police found five .40-
4

caliber rounds of ammunition that matched the spent casings 

found at the scene of the shooting. Appellant was arrested that 

same day and gunshot residue was found on both of his hands. 

DISCUSSION

Appellant contends the trial court abused its discretion on 

remand by declining to exercise its discretion to strike his section 

667, subdivision (a)(1) five-year prior serious felony

enhancement. We disagree.

When appellant was initially sentenced, the trial court had 

no authority to strike or dismiss his prior serious felony 

enhancement. Senate Bill 1393, which went into effect while the 

appeal was pending and applies retroactively to nonfinal 

judgments, deleted the provision of section 1385 that mandated 

the imposition of a section 667 prior serious felony enhancement.

Pursuant to that amendment, trial courts now have the 

discretion to strike or dismiss such enhancements in the interests 

of justice. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) §§ 1,2; 

People v. Garcia (2018) 28 Cal.App.5th 961, 973.)

The trial court’s refusal to strike or dismiss an 

enhancement for purposes of sentencing is reviewed for an abuse 

of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) 

We must defer to the trial court’s decision unless appellant has 

met his burden of showing that the ruling “is so irrational or 

arbitrary that no reasonable person could agree with it.” (Id. at 

p. 377.) Absent such a showing, the court is presumed to have 

considered all relevant sentencing factors and acted to achieve 

legitimate sentencing objectives, and its discretionary decision to 

impose a particular sentence will not be disturbed on appeal. (Id. 

at pp. 376-377; People v. Pearson (2019) 38 Cal.App.5th 112, 117.)
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At the original sentencing hearing, appellant brought a 

Romero3 motion to strike his prior strike conviction in the

interests of justice. Appellant contended the motion should be 

granted because the prior conviction was over 20 years old and 

appellant had not suffered any other felony convictions between 

the time of his prior conviction in 1997 and the instant offenses. 

In denying the motion, the court reasoned: “In looking at 

this the court has considered . . . the probation report. The court 

heard the evidence in the trial here and . . . considered the nature 

and circumstances of the current offenses, the prior convictions 

that have been suffered by [appellant], the particulars as 

provided to the court of his background, character and prospects 

and the court notes that [appellant] does have a very lengthy 

criminal history going back to 1989. He had in 1991 . . . an arrest 

for robbery but was reduced to grand theft person. He went to 

prison for that case in 1991. He in 1994 had a petty theft, was on 

probation. [In] 1995 while on probation he had some sort of 

municipal code violation. Again in 1995 he had a felony 

conviction for possessing a deadly or dangerous weapon. In 1996 

[he] had a misdemeanor public nuisance matter. [In] 1997 was 

the first degree burglary that is the strike. He was sentenced to 

three years in state prison. Since then he has had a very minor 

criminal history, mostly consisting of [misdemeanor] marijuana

related offenses.” 

The court continued: “So the court is mindful that 

[appellant] has had very little or very minor criminal history 

since . . . suffering the strike; however, the court also does still 

have to consider the seriousness of the current offense and at the 

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

(Romero).
6

trial we heard that [appellant] was observed to be beating . . . 

this woman . . . that he had a relationship with, Miss Johnson, 

and that . . . when other people tried to intervene . . . [appellant] 

turned his attention to these other people at the party and 

ultimately ended up shooting at Gregory Robinson and he was 

convicted of attempted murder, shooting at an inhabited 

dwelling, possession of a firearm by a felon and unlawful 

possession of ammunition, [and] also the willful, deliberate and 

premeditated allegation as to the attempted murder and the 

firearms allegation as to the attempted murder. Given 

[appellant’s] lengthy criminal history and the extraordinarily 

serious nature of the offenses in the current case the court does 

not believe it would be appropriate to strike the strike even 

though the strike is somewhat old. I don’t believe that he can be 

said to be outside the spirit of the Three Strikes law and I do not 

believe it would be in the interest of justice to strike the strike.” 

At the sentencing hearing on remand, appellant’s trial 

counsel stated that in urging the court to strike the prior serious 

felony enhancement he was relying on “the same argument” he 

made the at the Romero motion, i.e., that the prior conviction at 

issue was “very old.” In declining to strike the prior serious 

felony enhancement, the court stated: “[T]he Court does recall 

the trial, and for all the same reasons that were discussed during 

the Romero [motion] and [at] sentencing, given the factors 

pertaining to [appellant] and his history as well as the current 

offense[s] and the nature of the prior, the court does not believe 

that it would be in the interest of justice to strike the [section]

667(a)(1) prior; so the court will decline to do so.” 

The court did not abuse its discretion in declining to strike 

the prior serious felony enhancement. In arguing otherwise, 
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appellant claims that “[r]ather than considering all relevant 

factors, including the purpose of [Senate Bill] 1393, the age of the 

prior, the absence of continuing felony or violent criminal conduct 

and the sentence that could be imposed without the prior, the 

court focused solely on the seriousness of the current offense and 

[appellant’s] criminal history in refusing to strike the five-year 

prior.” The record belies this claim. In stating the reasons for its 

decision, the court expressly incorporated the reasons set forth in 

its detailed ruling denying appellant’s Romero motion. Appellant 

offers nothing to undermine the presumption that the court 

considered all of the relevant factors and sentencing objectives in 

issuing its ruling, so his claim that the ruling amounts to an 

abuse of discretion necessarily fails. (People v. Carmony, supra, 

33 Cal.4th at p. 374; People v. Pearson, supra, 38 Cal.App.5th at 

p. 117.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P. J.

TANGEMAN, J.
Shannon Knight, Judge

Superior Court County of Los Angeles

______________________________

Alice Tavoukjian, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill, Supervising Deputy 

Attorney General, Michael C. Keller, Deputy Attorney General, 

for Plaintiff and Respondent.