Filed 10/18/22 P. v. Smith CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RAY VERNON SMITH, JR.,

Defendant and Appellant.

 D079541

 (Super. Ct. No. INF1800239)

APPEAL from a judgment of the Superior Court of Riverside, James T. 

Latting & Russell L. Moore, Judges. Affirmed and remanded for 

resentencing.

Lizabeth Weis, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa 

Mandel, Paige B. Hazard, and Joy Utomi, Deputy Attorneys General, for 

Plaintiff and Respondent.
2

Ray Vernon Smith, Jr. was convicted of burglary and attempted 

robbery, and sentenced to 25 years to life plus 11 years under the “Three 

Strikes” law. On appeal, Smith asserts resentencing is necessary because the 

trial court declined to strike one of his prior strike convictions under an 

erroneous belief that it lacked discretion to consider his substance abuse as a 

mitigating factor and improperly found he had failed to pursue drug and 

alcohol treatment. Smith also asserts that he is entitled to remand and 

resentencing under recently enacted Assembly Bill No. 518 (2021-2022 Reg. 

Sess., AB 518), which gives trial courts new discretion to impose a shorter 

sentence. 

We reject Smith’s assertion the trial court erred by declining to strike 

his prior strikes, but agree with Smith that resentencing is required under 

the changes made by AB 518. Accordingly, we remand for the limited 

purpose of allowing the trial court to exercise its new sentencing discretion. 

In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Ricky P. was in a long-term relationship with Smith’s aunt and had 

known Smith for 20 years. Ricky was the manager of a rooming house that 

was being renovated to eventually have six rooms for rent. Ricky testified 

that he allowed Smith to stay in the house whenever there were vacant 

rooms available, although Smith did not have a key to the house or any of its 

locking doors. 

During the afternoon on February 5, 2018, Smith was at the house and 

acting erratically. Police records showed that Ricky called the police around 

4:49 p.m. to report Smith was throwing rocks. Palm Springs Police Officer 

Jeremy Beach came to the house, but did not find Smith there. 
3

That evening Ricky rented a room to Starr T. Starr had been homeless 

for four years and was looking for a safe place to stay. She gave Ricky $500 

for her first month’s rent. Starr did not know if other people lived in the 

house. Starr moved her belongings inside her room and, exhausted, quickly 

fell asleep. Twenty minutes later, she was awakened by Smith walking into 

her room. Smith seemed aggravated and asked Starr, “Who are you?” Starr 

responded, “Get the hell out of my room.” Smith left, and Starr fell back 

asleep. 

Another 20 minutes passed, and Starr was awakened again by a noise 

inside the room. Smith was in the room again, this time standing near Starr 

and holding a hammer over his head. Smith said, “Give me all your dope and 

money.” Starr jumped up and yelled at Smith to get out of her room and 

Smith left.

Starr went to Ricky’s apartment next door to the rooming house and 

told him what had happened. Ricky checked Starr’s room and then called 

911. When Officer Beach arrived, Ricky told him that Smith had been in the 

house. Police searched the house and found Smith hiding inside another 

room. Beach also found Smith’s belongings in the room and a hammer. 

Ricky told the police that Smith had been acting strangely earlier that day 

and was not supposed to be inside the rooming house that evening. At trial, 

Ricky denied making these statements to the police.1

1 Ricky also denied calling 911, instead stating that Starr called. Direct 

evidence contradicted Ricky’s trial testimony, and showed he called 911 then 

and earlier in the day. 
4

Smith was arrested and charged with burglary of an inhabited dwelling 

(Pen. Code, § 459,2 count 1) and attempted robbery with personal use of a 

deadly and dangerous weapon (§§ 664/211, 212.5, subd. (a), 12022, subd. 

(b)(1), count 2). The jury convicted Smith of both counts and found true the 

deadly weapon allegation. In a separate proceeding, the trial court found 

true the allegations that Smith had committed two prior serious felonies that

also constituted prior strike convictions.

Before sentencing, Smith asked the trial court to dismiss one of his 

prior strike convictions under the authority of section 1385. Smith argued 

his drug addiction was a mitigating factor and that the current crime was not 

as serious as the charges implied because Smith was not successful in his 

attempts to gain drugs or money from the victim. After argument by counsel 

at the sentencing hearing, the court declined to dismiss the prior strike. 

On count 2, the court sentenced Smith to an indeterminate term of 25 

years to life under the Three Strikes law and a determinate term of 11 years, 

consisting of two consecutive 5-year terms for the two serious felony priors 

under section 667, subdivision (a) and a one-year term for the personal use 

allegation. On count 1, the court imposed and stayed under section 654 an 

indeterminate term of 25-years-to-life and a determinate term of 10 years. 

Smith timely appealed from the judgment of conviction. 

DISCUSSION

I

Section 1385 Request to Strike

Smith asserts that the court abused its discretion in three ways with 

respect to its denial of his motion requesting the court strike one of his prior 

2 Subsequent statutory references are to the Penal Code.
5

convictions: (1) by adopting the prosecution’s description of the applicable 

law; (2) by failing to consider Smith’s drug use as a mitigating factor; and 

(3) by finding that Smith made no legitimate attempt to seek addiction 

treatment. The People respond that Smith’s claims are forfeited because they 

were not raised below. Alternatively, they argue the trial court is entitled to 

the presumption it understood and correctly applied the law, and here, the 

record shows the court undertook its own proper analysis and application of 

the law. 

A

Section 1385, subdivision (a), permits a trial court to “strike factual 

allegations relevant to sentencing, such as the allegation that a defendant 

has prior felony convictions.” (People v. Superior Court (Romero) (1996) 13 

Cal.4th 497, 504.) However, “ ‘the Three Strikes law does not offer a 

discretionary sentencing choice, as do other sentencing laws, but establishes 

a sentencing requirement to be applied in every case where the defendant 

has at least one qualifying strike, unless the sentencing court “conclud[es] 

that an exception to the scheme should be made because, for articulable 

reasons which can withstand scrutiny for abuse, this defendant should be 

treated as though he actually fell outside the Three Strikes scheme.” ’ ” 

(People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) “[T]he [T]hree 

[S]trikes law not only establishes a sentencing norm, it carefully 

circumscribes the trial court’s power to depart from this norm and requires 

the court to explicitly justify its decision to do so.” (Id. at p. 378.) 

In exercising its discretion, the court “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 
6

spirit, in 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 (Williams).) “[A] trial court 

does not abuse its discretion unless its decision is so irrational or arbitrary 

that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th 

at p. 377.)

B

As an initial matter, we reject the People’s assertion that Smith 

forfeited his arguments by not raising them below. A central argument made 

by Smith’s counsel at sentencing was that Smith’s drug addiction was a 

mitigating circumstance that supported a departure from the Three Strikes 

law. This argument encompasses Smith’s appellate contention that the trial 

court did not adequately factor Smith’s habitual drug use. Likewise, Smith’s 

trial counsel urged the court not to adopt the prosecutor’s legal analysis, 

which he now asserts was an abuse of discretion.

However, we agree with the People that Smith has not shown the trial 

court abused its discretion by declining to strike one of his prior convictions. 

Contrary to Smith’s assertion, the transcript from the sentencing hearing 

shows the court carefully considered the law presented by both parties in 

their briefing. As the People argue, the court was entitled to adopt the 

prosecution’s argument. That the court’s reasoning mirrored the 

prosecution’s opposition to Smith’s request that the court strike shows only 

that the court agreed with the People’s argument, not that the court did not 

engage in its own analysis. 

The transcript from the sentencing hearing shows that the court 

balanced the relevant facts and considered Smith’s individual background, 

including his drug use and addiction, in addition to his criminal record. The 
7

trial court’s conclusion that Smith had lived a life of crime, which included 

two earlier violent offenses, supported its determination that Smith was not 

within the few exceptions falling outside the spirit of the Three Strikes law. 

(See People v. Carmony, supra, 33 Cal.4th at p. 378 [“Because the 

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 once he commits a strike as part of a long and continuous criminal 

record, the continuation of which the law was meant to attack’ [citation], 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.”].)

The court accurately stated that Smith had multiple convictions, 

including two earlier violent felonies, served multiple terms in prison, and 

had multiple parole violations. The court acknowledged the defense’s

assertion that Smith’s background and drug addiction were mitigating 

circumstances warranting a departure from the Three Strikes law, but found 

that Smith had not made any sustained efforts at changing his lifestyle 

despite “numerous felony convictions, prison sentences, and parole 

violations.” 

Smith argues that the trial court abused its discretion by failing to 

consider “Smith’s individualized circumstances....” This argument is not 

supported by the appellate record. The court expressly recognized that Smith 

“suffered from a troubled upbringing, a narcotics addiction” and his argument

that these “underlying circumstances somehow warranted” dismissing a prior 

strike. However, the court found that Smith’s extensive criminal history 

demonstrated a high level of recidivism and that Smith had “failed to learn 

from his mistakes time and again, time and time again.” 
8

The record also contradicts Smith’s assertion that the court did not 

understand its discretion to consider Smith’s addiction and drug use as a 

mitigating factor. He argues that the court “mistakenly believed it was 

obligated as a matter of law to find Smith’s drug addiction was not a 

mitigating factor unless he had attempted to address the problem.” This 

argument mischaracterizes the trial court’s ruling and the cases it cited. The 

court expressly stated it was considering Smith’s background and character, 

including his drug use, but that it did not find Smith’s addiction to be a 

mitigating factor because Smith had not demonstrated any “legitimate 

attempt” to seek treatment. Smith himself admits on appeal that under the 

relevant cases, a defendant’s drug use “is not necessarily a mitigating factor” 

where the defendant “has a long-term problem and seems unwilling to pursue 

treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511; see also 

People v. Gaston (1999) 74 Cal.App.4th 310, 322 [drug dependency not a 

mitigating factor where defendant the record “barren of any attempts by 

[defendant] to ‘root out’ such destructive drug dependency”] and Williams, 

supra, 17 Cal.4th at p. 163 [drug use not a mitigating factor where defendant 

“did not follow through in efforts to bring his substance abuse problem under 

control.”].) The court’s decision declining to view Smith’s drug use as a 

mitigating factor was not an abuse of its discretion.

Finally, Smith argues that the court abused its discretion because the 

record did not support its implied finding that he had made no legitimate

attempts at rehabilitation. In support of this claim, Smith cites to the 

probation report, which noted that Smith had received some treatment for 

alcohol abuse. This statement does not contradict the court’s finding that 

Smith had never sought treatment for his drug use, which Smith professed 

was the cause of his current conviction. Further, Smith also told the 
9

probation officer that “[he] did not want to follow through” with the alcohol 

treatment, supporting the court’s implied finding that Smith had not made a 

legitimate attempt at rehabilitation. (See People v. Martinez, supra, 71 

Cal.App.4th at p. 1511.)

In sum, the record shows that the trial court considered Smith’s 

individual circumstances and appropriately found Smith’s drug use was not a 

mitigating factor supporting a departure from the Three Strikes law.

II

Recently Amended Section 654

Smith asserts that the recent enactment of AB 518 requires 

resentencing. The Attorney General concedes that the new discretion 

afforded by the law applies, but argues remand is not required because the 

trial court clearly indicated it would not have given Smith a lesser sentence if 

it had such discretion. 

“[Penal Code section] 654 precludes multiple punishments for a single 

act or indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 

294.) At the time of sentencing, former section 654, subdivision (a) required 

that a defendant who committed an act punishable by two or more provisions 

of law be punished under the provision that provided for the longest possible 

term. (Stats. 1997, ch. 410, § 1.) Effective January 1, 2022, AB 518 amended 

section 654, subdivision (a) to permit an act or omission punishable under 

two or more provisions of law to “be punished under either of such 

provisions.” (§ 654, subd. (a); Stats. 2021, ch. 441, § 1.) Thus, under newlyamended section 654, a trial court now has the discretion to punish the

defendant under any of the applicable laws.
10

At sentencing, the trial court determined that section 654 applied to 

this case, finding that Smith had a single criminal objective for the burglary 

and attempted robbery, which was to steal drugs and money from Starr. 

Accordingly, the court imposed the higher term for count 2, consisting of an 

indeterminate term of 25-years-to-life and a determinate term of 11 years. 

The determinate term, in turn, consisted of two five-year terms for each 

serious felony prior under section 667, subdivision (a) and a one-year 

enhancement for the true finding on the personal use of a deadly weapon 

allegation attached to count 2. The court stayed the lesser sentence required 

for count 1, consisting of an indeterminate term of 25-years-to-life and a 

determinate term of 10 years (two 5-year terms for the serious felony priors). 

The parties agree the discretion newly conferred by AB 518 alters the 

court’s options with regard to which of these sentences to stay or execute. In 

addition, the Attorney General concedes this amendment to section 654 

applies retroactively to Smith, as the amendment is ameliorative and the

judgment was not final when it became effective. The concession is well 

taken. (See, e.g., People v. Mani (2022) 74 Cal.App.5th 343, 379 [AB 518 

applies retroactively to all nonfinal judgments under the Estrada rule]; 

People v. Jones (2022) 79 Cal.App.5th 37, 45 [same].) 

Ordinarily, remand is the appropriate course when retroactive changes 

in law affect the sentencing court’s discretion. This is so because 

“ ‘[d]efendants are entitled to sentencing decisions made in the exercise of the 

“informed discretion” of the sentencing court’ ” (People v. Gutierrez (2014) 58 

Cal.4th 1354, 1391 (Gutierrez)), and “ ‘a court that is unaware of its 

discretionary authority cannot exercise its informed discretion.’ ” (People v. 

McDaniels (2018) 22 Cal.App.5th 420, 425.) An exception to this requirement 

exists, however, in the circumstance where “the record ‘clearly indicate[s]’ 
11

that the trial court would have reached the same conclusion ‘even if it had 

been aware that it had such discretion.’ ” (Gutierrez, at p. 1391.) When

“ ‘ “the record shows that the trial court would not have exercised its 

discretion even if it believed it could do so, then remand would be an idle act 

and is not required.” ’ ” (McDaniels, at p. 425; see People v. Flores (2020) 9 

Cal.5th 371, 431–432 [holding remand to resentence defendant to exercise 

sentencing discretion conferred by statutory amendment would be an idle 

act].) 

In the Attorney General’s view, the record is clear on this issue because 

the trial court denied Smith’s Romero motion and declined to strike the 

serious felony enhancements under section 667, subdivision (a), rejecting 

Smith’s argument that the 25 years to life sentence was too harsh and that 

the court should not further increase the sentence. Smith responds that the 

record is not sufficiently clear to preclude remand. He asserts that the court 

made no statement clearly showing it would not have exercised discretion to 

impose a term that was one year shorter. 

As Smith points out, remand for resentencing is required “unless the 

record shows that the trial court clearly indicated when it originally 

sentenced the defendant that it would not in any event have [exercised its 

discretion in a manner favorable to the defendant].” (McDaniels, supra, 22 

Cal.App.5th at p. 425, italics added.) Although the one year difference in the 

sentence is relatively small, we agree with Smith that his case should be 

remanded for resentencing on this limited issue. Although the record may 

suggest it is unlikely the trial court will choose the lesser sentence, it does 

not clearly show that the court will not. Accordingly, we remand for 

resentencing and express no opinion as to how the trial court should exercise 

its discretion.
12

DISPOSITION

The cause is remanded to allow the superior court to exercise its 

discretion under section 654. In all other respects, the judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

O'ROURKE, J.