Filed 4/28/22 P. v. Terrell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

NOLAN TANNER TERRELL,

Defendant and Appellant.

F081782

(Super. Ct. Nos. F19905005, 

F18907484)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Francine 

Zepeda, Judge.

Francine R. Tone, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. 

Cary, Jennifer Oleksa and Kari Mueller, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOoo-

* Before Levy, Acting P. J., Smith, J. and DeSantos, J.
2.

Defendant Nolan Tanner Terrell contends on appeal that (1) the trial court abused 

its discretion in denying his Romero1 motion to dismiss a prior felony “strike” conviction 

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

1170.12, subds. (a)–(d));2 and (2) his sentence on count 1 in case No. F19905005 must be 

vacated and his case remanded for resentencing in light of Senate Bill No. 567’s 

(2021–2022 Reg. Sess.) (Senate Bill 567) amendments to section 1170, subdivision (b). 

We vacate defendant’s sentence and remand for resentencing in light of amended 

section 1170, subdivision (b). In all other respects, we affirm.

PROCEDURAL SUMMARY

Case No. F18907484

On November 1, 2018, the Fresno County District Attorney filed a complaint in 

case No. F18907484 charging defendant with corporal injury to a cohabitant with a prior 

(§ 273.5, subd. (f)(1); count 1) and assault by means likely to produce great bodily injury 

(§ 245, subd. (a)(4); count 2). Defendant pled no contest to count 1. In exchange, the 

People dismissed count 2. Defendant was sentenced to 365 days in custody at the Fresno 

County jail. Defendant was subsequently sentenced to five years in prison for a violation 

of probation to be served concurrently with case No. F19905005.

Case No. F19905005

On January 7, 2020, the Fresno County District Attorney filed an amended 

complaint in case No. F19905005 charging defendant with two counts of corporal injury 

to a cohabitant with a prior (§ 273.5, subd. (f)(1); counts 1 & 6), dissuading a witness 

from testifying (§ 136.1, subd. (a)(1); count 2), and four counts of contempt of court in a 

pending case (§ 166, subd. (c)(1); counts 3–5 & 7). It was also alleged that defendant had 

a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, 

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

2 All statutory references are to the Penal Code unless otherwise noted.
3.

subds. (a)–(d)). Defendant pled no contest to counts 1 and 2 and admitted the prior strike 

and prior domestic violence conviction allegations; in exchange, the People dismissed the 

remaining counts. At sentencing, the court denied defendant’s Romero motion and 

sentenced defendant to 14 years in state prison.

On October 6, 2020, defendant filed a notice of appeal. On March 1, 2021, we 

granted defendant’s motion to construe the notice of appeal to include case 

No. F18907484.

FACTS3

In case No. F18907484, defendant’s girlfriend, CV,4reported a domestic violence 

incident, where defendant became angry because she was ignoring him speaking to her 

while she attempted to sleep. When CV asked defendant to stop speaking, defendant got 

on top of her and placed his hands on her throat, causing her to be unable to breath. She 

felt as if she was going to die. Defendant let go of CV when he saw that CV was 

bleeding from her lips. CV sustained visible injuries, including a red mark on her neck, a 

swollen red lip, and a swollen right pinky finger. When questioned by officers, defendant 

denied a physical altercation occurred. Defendant was later arrested in connection with 

this incident.

In case No. F19905005, defendant contacted CV multiple times over the course of 

several months, in violation of a criminal protective order that was in place from case 

No. F18902484. Defendant harassed and physically assaulted CV on multiple occasions. 

He threatened to go to her home and break items in her house; he insulted, pushed, 

head-butted, kicked, kneed, and chased her around the home and would not allow her to 

leave; he caused her to fall to the floor twice; and he grabbed her arms and held her down 

3 Because there was no jury trial in this case, the statement of facts for each case is 

based on the probation officer’s report. 

4 Defendant’s girlfriend will be referred to as “CV” (confidential victim).
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before walking out of the room as he stated that she was “ ‘weak and would not call the 

police.’ ” Injuries that CV sustained from these incidents included bruises on her right 

upper arm and forearm, right elbow, right thigh, left upper arm and forearm, scratches to 

her mid-back, and a laceration between her eyebrows.

Defendant was subsequently arrested. Once again, defendant denied any 

altercations with CV had occurred. After his arrest, defendant sent a letter to his mother 

from the Fresno County jail asking her to tell CV not to testify or go to court, and to say 

that CV was lying.

DISCUSSION

I. Romero Motion

Defendant contends the trial court abused its discretion when it denied his Romero

motion to dismiss his prior strike conviction. The People disagree. We agree with the 

People. 

A. Background

As part of the plea agreement, defendant admitted he had been convicted of a 

strike offense in 2011, for felony first degree burglary of an inhabited dwelling. (§§ 459, 

460, subd. (a).) On August 11, 2020, defendant invited the court by oral motion to strike 

his 2011 prior strike conviction pursuant to section 1385 and Romero, supra, 13 Cal.4th 

497.

The trial court denied defendant’s Romero motion, concluding that the strike 

conviction was not remote in time considering his extensive criminal history both before 

and after his prior strike offense, including multiple domestic violence offenses; that his 

offenses had been consistently increasing in seriousness from misdemeanors to his 2011 

felony prior strike conviction for first degree burglary of an inhabited dwelling, which it 

considered to be a very serious offense, calling it “violent”; his subsequent domestic 

violence offense after the prior strike conviction, including his felony domestic violence

offenses in the related case No. F18907484, culminating in the circumstances of the 
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present felony domestic violence offense; that he had violated felony probation in case 

No. F18907484; and that he had been given the opportunity to go to a treatment program, 

but failed to attend.

B. Law

The intent of the Three Strikes law is “ ‘to ensure longer prison sentences and 

greater punishment for those who commit a felony and have been previously convicted of 

serious and/or violent felony offenses.’ ” (People v. Strong (2001) 87 Cal.App.4th 328, 

337, fn. omitted (Strong).) The Three Strikes law establishes a sentencing norm for 

longer sentences for repeat offenders and “carefully circumscribes the trial court’s power 

to depart from this norm,” requiring the trial court to explicitly justify its decision to 

depart from it. (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) “In doing 

so, the law creates a strong presumption that any sentence that conforms to these 

sentencing norms is both rational and proper.” (Ibid.) “[A] trial court does not abuse its 

discretion unless its decision is so irrational or arbitrary that no reasonable person could 

agree with it.” (Id. at p. 377.)

When exercising its limited discretion to dismiss a prior strike conviction, the trial

court must look at the totality of the circumstances to determine whether the person falls 

outside the spirit of the Three Strikes law. (In re Saldana (1997) 57 Cal.App.4th 620, 

626; see Strong, supra, 87 Cal.App.4th at p. 336 [The “spirit” of a law refers to the 

general meaning or purpose of the law.].) It must determine whether “in light of the 

nature and circumstances of [the defendant’s] 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 [Three Strikes] scheme’s 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.) The extent of a defendant’s criminal record is “ ‘undeniably 

relevant’ ” to the factors outlined in Williams. (People v. Garcia (1999) 20 Cal.4th 490, 
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500–501.) The sentence imposed by the trial court is, also, itself a factor when deciding a 

defendant’s prospects for committing future crimes because the defendant will have 

fewer opportunities to commit crimes while incarcerated. (People v. Gaston (1999) 74 

Cal.App.4th 310, 315.)

It is the defendant’s burden to provide the trial court with evidence to support his 

Romero motion. (People v. Lee (2008) 161 Cal.App.4th 124, 129.) 

C. Analysis

The trial court did not abuse its discretion in denying defendant’s Romero motion 

to dismiss his 2011 prior strike conviction. Based on the record before the trial court at 

the time of its ruling, its denial of defendant’s motion is “not so irrational or arbitrary that 

no reasonable person could agree with it.” (See Carmony, supra, 33 Cal.4th at p. 377.) 

The trial court clearly considered the “the entire picture” when denying defendant’s 

motion to dismiss his prior strike and defendant falls squarely within the spirit of the 

Three Strikes law “ ‘to ensure longer prison sentences and greater punishment for those 

who commit a felony and have been previously convicted of serious and/or violent felony 

offenses.’ ” (See Strong, supra, 87 Cal.App.4th at p. 337, fn. omitted; see People v.

Alvarez (1997) 14 Cal.4th 968, 975.)

The trial court was not required to explicitly state its reasons for denying 

defendant’s motion. (See Carmony, supra, 33 Cal.4th at p. 378.) However, it did discuss

defendant’s “ ‘present felonies and prior serious and/or violent felony convictions,’ ” and 

the particulars of his “ ‘background, character, and prospects,’ ” which weighed against 

dismissing defendant’s 2011 prior strike conviction. (See Carmony, at p. 377.) The trial 

court outlined the factors that it considered from the record before it at the time of the 

motion, such as defendant’s probation report detailing defendant’s extensive criminal 

history, which included numerous domestic violence offenses against both CV and other 

victims, both before and after his 2011 prior strike conviction; the increasing seriousness 
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of his offenses; his violation of felony probation in case No. F18907484; and his failure 

to avail himself of the treatment program he was directed by the trial court to attend. 

Defendant’s probation report considered by the trial court showed that defendant 

had numerous criminal convictions: disorderly conduct (§ 647, subd. (f)) in 2005;

vandalism and possession/manufacture/sale of dangerous weapons (§§ 594, 

subd. (b)(2)(a), 12020) in 2007; driving under the influence of alcohol/drugs (Veh. Code, 

§ 23152, subd. (a)) in 2007; driving while license suspended/revoked and speed in excess 

of 55 m.p.h. maximum (Veh. Code, §§ 14601.2, subd. (a), 22349, subd. (b)) in 2008;

driving while license suspended/revoked (Veh. Code, § 14601.1, subd. (a)) in 2008;

battery on a spouse/cohabitant (§ 243, subd. (e)(1)) in 2009; driving while license 

suspended/revoked (Veh. Code, § 14601.1, subd. (a)) in 2009; corporal injury of a 

spouse/cohabitant (§ 273.5, subd. (a)) in 2011; battery on a spouse/cohabitant (§ 243, 

subd. (e)(1)) in 2011; his prior strike conviction for felony first degree burglary of an 

inhabited dwelling (§§ 459, 460, subd. (a)) in 2011; vandalism, attempt to dissuade a 

witness, terrorist threats, assault with force and possible great bodily injury, and corporal 

injury of a spouse/cohabitant (§§ 594, subd. (b)(2)(a), 136.1, subd. (b)(1), 422, 245, 

subd. (a)(4), 273.5, subd. (a)) in 2012; driving under the influence of alcohol over 

0.08 percent (Veh. Code, § 23152, subd. (b)) in 2017; as well as the offenses for which 

defendant violated his felony probation in case No. F18907484.

The record before the trial court did not indicate whether there was another person 

present during defendant’s first degree burglary of an inhabited dwelling for which he 

received his 2011 prior strike conviction, such that it could be classified as “violent” as 

the trial court misstated when it outlined its reasons for denying defendant’s Romero 

motion. However, we need not address this argument by defendant because the totality 

of circumstances considered by the trial court, discussed above, overwhelmingly support 

the trial court’s ruling that defendant falls squarely within the spirit of the Three Strikes 

law. Defendant’s criminal record and other factors relied upon by the trial court strongly 
8.

support the trial court’s denial of defendant’s Romero motion when considering the entire 

picture. 

Defendant also argues that the trial court improperly found that his prior strike 

conviction was not sufficiently remote in time to be dismissed. However, “[i]n 

determining whether a prior conviction is remote, the trial court should not simply 

consult the Gregorian calendar with blinders on.” (People v. Humphrey (1997) 58 

Cal.App.4th 809, 813; see People v. Solis (2015) 232 Cal.App.4th 1108, 1124 [a prior 

strike conviction is not properly stricken merely because it is 30 years old].) “To be sure, 

a prior conviction may be stricken if it is remote in time. In criminal law parlance, this is 

sometimes referred to as ‘washing out.’ [Citations.] The phrase is apt because it carries 

the connotation of a crime-free cleansing period of rehabilitation after a defendant has 

had the opportunity to reflect upon the error of his or her ways.” (Humphrey, at p. 813.) 

Here, defendant did not live a legally blameless life either before or after his prior strike 

conviction. The trial court noted that throughout defendant’s criminal career, he had 

“eight or nine” domestic violence convictions, both against CV and other victims, as well 

as another conviction for dissuading his domestic violence victim from testifying as a 

witness against him. Three of his convictions were in the interim period between the 

2011 prior strike conviction and the current offenses. The trial court also noted that his 

offenses had increased in seriousness over time, from misdemeanors before his 2011 

prior strike conviction, up to the most recent felony offenses at issue here. Thus, 

defendant’s prior strike conviction is not so remote that he falls outside the spirit of 

Three Strikes law. 

The trial court’s reliance on these factors, along with the presumption that denial 

of a Romero motion is a proper exercise of discretion, convince us that, when looking at 

the entire picture, the trial court’s denial of defendant’s motion was not an abuse of 

discretion. (See Carmony, supra, 33 Cal.4th at p. 378). The trial court’s decision was 

not “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, 
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at p. 377.) Defendant falls squarely within the spirit of the Three Strikes law. (See 

Williams, supra, 17 Cal.4th at p. 161; Strong, supra, 87 Cal.App.4th at p. 336.)

II. Senate Bill 567

Defendant contends the trial court’s sentence to the upper term on count 1 in case 

No. F19905005 should be vacated and remanded in light of Senate Bill 567’s 

amendments to section 1170, subdivision (b). The People argue that although Senate 

Bill 567’s amendments to section 1170, subdivision (b), apply here, vacating defendant’s 

sentence and remanding the case for resentencing is unnecessary because the trial court 

relied on defendant’s prior criminal history, in accordance with section 1170, 

subdivision (b)(3), in imposing the upper term on count 1 in case No. F19905005. We 

remand defendant’s case for resentencing.

A. Background

In case No. F19905005, the trial court sentenced defendant to the upper term of 

five years. In case No. F18907484, defendant was sentenced to the middle term of 

two years. Both sentences were doubled as a result of defendant’s 2011 prior strike 

conviction, resulting in an aggregate sentence of 14 years.

Defendant admitted one prior strike offense, first degree burglary of an inhabited 

dwelling, from 2011. At the time of the plea, no factual basis was stated on the record. 

There was no preliminary hearing held from which a factual basis could be made. The 

following exchange occurred:

“THE COURT: Factual basis?

“[DEFENSE COUNSEL]: By defense.

“[THE PEOPLE]: By the People, Judge.”

The facts supporting this conviction are found only in the probation report, which 

summarizes facts from a police report. There are no statements made by defendant.
10.

Defendant also admitted a prior domestic violence conviction. The facts 

supporting this conviction are found in the probation report, which summarizes facts 

from a police report. The only statement made by defendant which was reported in the 

probation report was: “ ‘Since they are recommending a treatment program, I would like 

to attend West Care because that program really helped me. I heard the facility is closing 

soon, so if I can do three months inpatient and the remainder on outpatient.’ ”

The probation report for case No. F19905005 considered by the trial court also 

showed that defendant had numerous criminal convictions: disorderly conduct (§ 647, 

subd. (f)) in 2005; vandalism and possession/manufacture/sale of dangerous weapons 

(§§ 594, subd. (b)(2)(a), 12020) in 2007; driving under the influence of alcohol/drugs 

(Veh. Code, § 23152, subd. (a)) in 2007; driving while license suspended/revoked and 

speed in excess of 55 m.p.h. maximum (Veh. Code, §§ 14601.2, subd. (a), 22349, 

subd. (b)) in 2008; driving while license suspended/revoked (Veh. Code, § 14601.1, 

subd. (a)) in 2008; battery on a spouse/cohabitant (§ 243, subd. (e)(1)) in 2009; driving 

while license suspended/revoked (Veh. Code, § 14601.1, subd. (a)) in 2009; corporal 

injury of a spouse/cohabitant (§ 273.5, subd. (a)) in 2011; battery on a spouse/cohabitant, 

(§ 243, subd. (e)(1)) in 2011; his prior strike conviction for felony first degree burglary of 

an inhabited dwelling (§§ 459, 460, subd. (a)) in 2011; vandalism, attempt to dissuade a 

witness, terrorist threats, assault with force and possible great bodily injury, and corporal 

injury of a spouse/cohabitant (§§ 594, subd. (b)(2)(a), 136.1, subd. (b)(1), 422, 245, 

subd. (a)(4), 273.5, subd. (a)) in 2012; driving under the influence of alcohol over 

0.08 percent (Veh. Code, § 23152, subd. (b)) in 2017; as well as the offenses for which 

defendant violated his felony probation in case No. F18907484.

The trial court sentenced defendant to the upper term on count 1 in case 

No. F19905005, citing defendant’s criminal history as a factor in aggravation. The trial 

court stated:
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“Additionally, it’s a crime of violence. [¶] ... [¶]

“Okay. I’m looking at his record. He has eight or nine domestic 

violence cases. Initially they were misdemeanors, but I think he kept 

getting more and more cases. [Defendant’s prior strike conviction in] 2011 

is a [section] 459/460[, subdivision (a) first degree burglary of an inhabited 

dwelling]. Violent case. ... I consider that offense to be aggravated and 

it’s considered a crime of violence. So the fact that he admitted that, I am 

going to double any term I give him by that.” 

“He has another case where he did—is that the case I think I have in 

front of me, also a violation case where he also has a case there. He has 

been given opportunities to not only go to a program, West Care, get some 

assistance there, and he hasn’t availed himself of that. I just find that, and I 

don’t often find that I should give an aggravated term, but I find that in this 

case I should. That is what I’m going to impose.”

B. Law

On October 8, 2021, Senate Bill 567 was signed into law. It amends the 

determinate sentencing law, section 1170, subdivision (b), which delineates the trial 

court’s authority to impose one of three statutory terms of imprisonment, known as the 

lower, middle, or upper terms, by making the middle term the presumptive sentence for a 

term of imprisonment, unless certain circumstances exist. (See Stats. 2021, ch. 731, 

§ 1.3, adding § 1170, subd. (b)(1), (2).) Effective January 1, 2022, under the newly 

amended law, the trial court may impose an upper term sentence only where there are 

circumstances in aggravation, and the facts underlying all of the aggravating 

circumstances have been stipulated to by the defendant or found true beyond a reasonable 

doubt by a jury or court trial. (Ibid.) However, under section 1170, subdivision (b)(3), 

the trial court, 

“may consider the defendant’s prior convictions in determining sentencing 

based on a certified record of conviction without submitting the prior 

convictions to a jury.” (§ 1170, subd. (b)(3).)

Under amended section 1170, subdivision (b)(5), the trial court must “set forth on 

the record the facts and reasons for choosing the sentence imposed. The court may not 
12.

impose an upper term by using the fact of any enhancement upon which sentence is 

imposed under any provision of law.” (§ 1170, subd. (b)(5).)

C. Analyis

Senate Bill 567 went into effect on January 1, 2022. Absent evidence to the 

contrary, the Legislature intends amendments to statutes that reduce the punishment for a 

particular crime to apply to all defendants whose judgments are not yet final on the 

amendment’s operative date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 

307–308 [discussing In re Estrada (1965) 63 Cal.2d 740]; People v. Brown (2012) 54 

Cal.4th 314, 323.) The “consideration of paramount importance” is whether the 

amendment lessens punishment. (Estrada, at p. 744.) If so, the “inevitable inference [is] 

that the Legislature must have intended that the new statute” apply retroactively. 

(Estrada, at p. 745.) As Senate Bill 567’s amendments to section 1170, subdivision (b), 

lessen punishment, and there is no indication that the Legislature intended it to apply 

prospectively only, the new law must be retroactively applied. Therefore, the amendment 

to section 1170, subdivision (b), applies to all cases not final on Senate Bill 567’s 

effective date. (Estrada, at pp. 745–746; People v. Flores (2022) 73 Cal.App.5th 1032, 

1039.)

As defendant contends, defendant’s case was not final on January 1, 2022, and he 

was sentenced to the upper term on count 1 in case No. F19905005 under the former 

section 1170. We agree. Defendant is entitled to the benefit of Senate Bill 567.

Here, defendant’s sentence to the upper term on count 1 in case No. F19905005 by 

the trial court is not consistent with the requirements of Senate Bill 567’s amendment to 

section 1170, subdivision (b), because the record does not reflect that the trial court relied 

upon certified records of defendant’s prior convictions, and because the trial court 

considered factors outside the records of conviction that were not admitted by defendant 

or proved beyond a reasonable doubt. 
13.

The trial court clearly considered defendant’s criminal history as a factor in favor 

of sentencing defendant to the upper term for count 1 in case No. F19905005. When it 

determined that it was sentencing defendant to the upper term, the trial court stated, “I’m 

looking at his record. He has eight or nine domestic violence cases. Initially they were 

misdemeanors, but I think he kept getting more and more cases. [Defendant’s prior strike 

conviction in] 2011 is a [section] 459/460[, subdivision (a) first degree burglary of an 

inhabited dwelling.] ... So the fact that he admitted that, I am going to double any term I 

give him by that.” Under amended section 1170, subdivision (b)(3), a trial court may 

only consider the defendant’s prior convictions in determining sentencing based on a 

certified record of conviction without submitting the prior convictions to a jury. (§ 1170, 

subd. (b)(3).) If the prior convictions are not included in the record in a certified record 

of conviction, then they must be proven by a jury. (Ibid.) In this case, the trial court 

relied on neither, but only on the probation report summarizing defendant’s criminal 

history. 

The trial court’s statement also shows that it relied on the probation report not only 

for defendant’s criminal history, but also to prove the facts underlying defendant’s prior 

convictions. However, under amended section 1170, subdivision (b), the facts underlying 

all aggravating circumstances must be stipulated to by the defendant or found true 

beyond a reasonable doubt by a jury or court trial. (§ 1170, subd. (b)(2).) Here, they 

were not. The underlying facts of defendant’s prior convictions were contained only in 

the probation report, which summarizes facts from a police report.

The trial court relied not only on defendant’s criminal history, but also other 

factors, as discussed above, when imposing the upper term on count 1 in case 

No. F19905005. As the record does not reflect that the trial court considered a certified 

record of his prior convictions and there was no jury or court trial to prove the underlying 

facts upon which the trial court also stated that it relied, we must vacate defendant’s 
14.

sentence and remand for resentencing in light of section 1170, subdivision (b). We 

express no opinion on how the trial court should rule.

DISPOSITION

The sentence is vacated and the matter is remanded for resentencing in light of 

amended section 1170, subdivision (b).