1

Filed 5/15/24 P. v. West CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

SANTANA DUANE WEST,

Defendant and Appellant.

 A164873

 (San Francisco City & County

 Super. Ct. Nos. SCN226436, CRI14031086)

Santana Duane West1 appeals after a jury convicted him of 

forcible rape (Pen. Code, § 261, subd. (a)(2); count one),

2 sexual 

battery by restraint (§ 243.4, subd. (a); count six), two counts of 

assault with force likely to cause great bodily injury (§ 245, subd. 

(a)(4); counts eight-nine), false imprisonment (§ 236; count 11), 

and assault with intent to commit rape (§ 220, subd. (a)(1); a 

lesser included offense of count five). The jury also found true a

prior conviction allegation, which was alleged as a qualifying 

prior under the one strike law (§ 667.61, subds. (a), (c)(1), (d)(1)) 

and the habitual sexual offender law (§ 667.71, subds. (a), (c)(1)). 

That conviction (along with two others) were also alleged as 

1 The parties stipulated below that appellant’s birth name 

is Elon Collins, but he was charged as Santana Duane West and 

is therefore referred to as West throughout this opinion. 

2 Undesignated statutory references are to the Penal Code.
2

qualifying prior strikes under the three strikes law (§§ 667, 

subds. (d)-(e), 1170.12, subds. (b)-(c)). 

After a bifurcated court trial, at which the trial court found 

all three prior strike allegations true, West was sentenced to a 

prison term of 75 years to life. On appeal, West asserts claims of 

evidentiary, prosecutorial, and sentencing error. We find no 

prejudicial error and affirm.

BACKGROUND

A.

At around noon on December 2, 2014, Catherine S. went 

out to buy crack in the Tenderloin neighborhood of San Francisco. 

Although she had smoked crack earlier in the day, she was no 

longer feeling its effects. She met West, who said he had drugs

and asked Catherine if she wanted to get high. Catherine agreed 

and invited West to her apartment to smoke. Catherine testified 

that she and West did not discuss exchanging sex for crack. 

On their walk to Catherine’s apartment, West was drinking 

liquor. Catherine did not drink any alcohol with him, but she 

had consumed some earlier in the day. They entered her 

apartment, Catherine gave West a pipe, and he “took a hit.” 

Immediately thereafter, and within five minutes of 

entering the apartment, West punched Catherine in the face, 

knocking her onto the bed. He said, “[t]ake off your clothes, 

bitch,” and punched her again. Catherine was a cancer survivor 

and had not had sex in years. Catherine told him this and that 

she “can’t do nothing.” West responded that she was lying and 

claimed he had a nine-millimeter gun. Although Catherine never 

saw a gun, West said several times that he would “kill” or “shoot”

her if she did not comply. 

As Catherine struggled on the bed with West, she tried to 

bang on the wall (adjacent to an exterior hallway) to get 
3

someone’s attention. But West then held her hands and pressed 

a pillow down over her face. Catherine testified that she thought 

she was “going to die.” When he removed the pillow, Catherine 

said, “[O]kay man I quit. I quit. I quit.” West then penetrated 

Catherine’s vagina with his penis. 

Eventually, West stopped and went into Catherine’s 

kitchen in search of food. Catherine testified that he then hit her

several more times, threatened to kill her, and forcibly had 

sexual intercourse with her two or three more times. Over the 

course of the entire attack, which lasted between five and six 

hours, West pushed the pillow over her face three or four times. 

He also used his hands to cover her mouth and nose, and he 

strangled her—using both of his hands around her neck to hold 

her down. After a final act of forced intercourse, West fell asleep 

in Catherine’s bed. Catherine then ran to her neighbor’s 

apartment and called the police to report being raped. 

B.

Catherine’s neighbor (and friend) testified that, on the 

evening of December 2, 2014, Catherine knocked on his door and 

said she had been “violated.” Catherine’s eyes were puffy, and 

she appeared “shaken up.” 

San Francisco Police Department Officer Irving Garcia, Jr. 

responded to Catherine’s apartment building that night. When 

Officer Garcia met Catherine in the hallway, she was wearing 

only a jacket, with nothing on underneath. Catherine—who did 

not appear to be under the influence of cocaine—initially told 

Garcia, “he beat me up” and that her assailant was still in her 

apartment. She appeared frightened, agitated, and disheveled 

and had observable injuries to her face (including eyes, chin, lip, 

and jaw), as well as to her neck, shoulder, and arm. 

When Officer Garcia entered Catherine’s apartment, he 

found West asleep, in her bed, wearing a white shirt but nothing 
4

else. Spots of blood were on West’s shirt. When asked about it, 

West said he thought he had a cut on his finger. While Officer 

Garcia remained with West, a transmission on the police radio 

referenced an ambulance for “a possible 261 victim.” West 

immediately stated, “ ‘I did not have sexual relations with this 

woman. I know what 261 means.’ ” 

Officer Garcia returned to the hallway to interview 

Catherine. Catherine told him that, when she first met West

around noon, West offered her crack, and they went back to her 

apartment to get high. Catherine said that she never actually 

ingested any drugs because, once they arrived at her apartment, 

West beat her, raped her three or four times, and she only 

escaped when West fell asleep. 

Crime scene investigators did not find a gun in Catherine’s 

apartment, but they collected a bra, which had an apparent blood 

stain on it. Her mattress and nearby wall also showed what 

appeared to be blood. 

C.

Catherine was examined by a nurse practitioner at San 

Francisco General Hospital. The nurse practitioner testified as 

an expert in conducting forensic sexual assault examinations and 

in the identification of symptoms of strangulation. 

When Catherine was examined, she was crying but did not 

appear to be intoxicated. She had a bruise on her left shoulder, 

scratches on both arms and her face, swelling around her eyes,

and bruising around her eyelids, forehead, and lips. Both of 

Catherine’s eyes showed recent subconjunctival hemorrhages and 

her voice was hoarse. The nurse practitioner opined that these

injuries were consistent with manual strangulation and were 

likely suffered in the last 24 hours. A sexual assault exam also 

revealed that Catherine had suffered recent injuries to her 
5

genitalia consistent with sexual trauma—including tears, 

bruising, and petechia (ruptured blood vessels). 

When interviewed (at the hospital) by San Francisco Police 

Department Sergeant Andrea Creed, Catherine stated that West 

had strangled her during the assault. Sergeant Creed also 

interviewed West a few hours after his arrest. Portions of the 

interview recording were played for the jury. After he waived his 

rights under Miranda v. Arizona (1966) 384 U.S. 436, West told 

Creed that he had consensual sex with Catherine (two or three 

times) but denied hitting (or otherwise injuring) her. 

When West was photographed, he had a bandage on his 

neck and an abrasion on his shoulder. With respect to the 

apparent bloodstains on his shirt, West repeated the explanation 

about a cut to his hand. But no fresh wounds were seen on his 

hands. 

Pursuant to Evidence Code section 1108, the trial court 

admitted a certified copy of West’s 2003 conviction for forcible 

rape (Pen. Code, § 261, subd. (a)(2)). 

D.

West testified, in his own defense, that he offered 

Catherine crack in exchange for sex. She agreed and invited him 

to her apartment. When he entered the apartment, he did not

intend to assault Catherine. They both smoked crack, then West 

initiated sex, and Catherine agreed. West consensually 

penetrated Catherine twice but could not maintain an erection. 

West testified that Catherine made fun of his inability to 

maintain an erection, they both smoked some more, and he drank 

some alcohol. At some point, Catherine demanded more drugs. 

Catherine told him that she was “ ‘going to hurt [him]’ ” and 

started to reach under the bed. West, who is a Vietnam combat 

veteran and has combat-related posttraumatic stress disorder, 

was in fear because he did not know what she was reaching for. 
6

He “reacted” to the perceived threat by grabbing her hand. Then 

a “fight” ensued. West testified that Catherine was trying to 

scratch and bite him, and despite being in fear for his life, he was 

merely trying to restrain her. Although West admitted slapping 

Catherine two or three times, he testified that he never punched 

or strangled her. West eventually fell asleep and woke up when 

officers entered the apartment. 

In rebuttal, additional portions of West’s interview with 

Sergeant Creed were played for the jury. During that interview, 

West never mentioned having problems maintaining an erection, 

Catherine commenting about such dysfunction, Catherine 

reaching for something that made him fear for his safety, or that 

he had restrained Catherine in self-defense. West also made no 

attempt to explain his earlier statement (to Officer Garcia) that 

he and Catherine did not have sex. 

E.

The jury convicted West of one count each of forcible rape, 

sexual battery by restraint, and false imprisonment; two counts 

of assault with force likely to cause great bodily injury; and 

assault with intent to commit rape as a lesser included offense to 

count five—which was originally charged as assault with intent 

to commit sexual assault during a burglary (§§ 220, subd. (b), 

460, subd. (a)). The jury also found true an allegation that West

had been previously convicted of forcible rape, which made him 

eligible for punishment under the one strike law (§ 667.61, subds. 

(a), (c)(1), (d)(1)), as well as under the habitual sex offender law 

(§ 667.71, subds. (a), (c)(1)). 

West was acquitted of the other charged offenses, including 

two additional counts of forcible rape (counts two and three),3

3 An additional count of forcible rape (count four) was 

dismissed by the court, pursuant to section 1118.1, before 

deliberations. 
7

making criminal threats (§ 422; count 10), and burglary (§ 459; 

count 16).

The trial court found true allegations that West had 

suffered three prior felony convictions—second degree robbery 

(§ 211) in 1987, first degree robbery (§ 212.5, subd. (a)) in 2003, 

and forcible rape in 2003. All three qualified as strikes under the 

three strikes law (§§ 667, subds. (d)-(e), 1170.12, subds. (b)-(c)).

West was sentenced, on count one, to a prison term of 25 years to 

life pursuant to the habitual sex offender law (§ 667.71, subd.

(b)), which was tripled to 75 years to life under the three strikes 

law (§§ 667, subd. (e)(2)(A)(i), 1170.12, subd. (c)(2)(A)(i)). 

DISCUSSION

A.

West contends the trial court abused its discretion under 

Evidence Code section 352 by admitting evidence of his prior rape 

conviction under Evidence Code section 1108. He is wrong.

1.

Although evidence of prior criminal acts is ordinarily 

inadmissible to show a defendant’s disposition to commit such 

acts (Evid. Code, § 1101), the Legislature has created an 

exception to this rule in cases involving sexual offenses. (Id.,

§ 1108; People v. Reyes (2008) 160 Cal.App.4th 246, 251.) When 

accused of a sex offense, Evidence Code section 1108 allows 

admission of evidence of the defendant’s commission of other sex 

crimes to demonstrate the defendant’s disposition to commit 

similar crimes. (People v. Avila (2014) 59 Cal.4th 496, 514–515.) 

The court has discretion, under Evidence Code section 352, to 

exclude the evidence if its probative value is substantially

outweighed by the probability that it will consume an undue 

amount of time or create a substantial danger of undue prejudice, 

confusion of issues, or misleading the jury. (Evid. Code, § 352; 

Avila, supra, at p. 515.) However, Evidence Code section 1108
8

evidence is presumed admissible. (People v. Loy (2011) 52 

Cal.4th 46, 62 (Loy).) 

Like any ruling under Evidence Code section 352, the trial 

court’s admission of uncharged sex offense evidence is reviewed 

for abuse of discretion. (People v. Cordova (2015) 62 Cal.4th 104, 

132.) 

2. 

Before trial, defense counsel moved to exclude evidence of 

West’s 2003 conviction for rape. West argued the evidence was 

inadmissible testimonial hearsay because the previous 

complaining witness had since died and never been crossexamined. West also asserted any evidence was neither

admissible under Evidence Code section 1101, subdivision (b), nor 

under Evidence Code section 1108, because the 2003 rape was 

remote and dissimilar, and because admitting the evidence would 

lead to undue consumption of time and jury confusion. The 

prosecutor filed a competing motion to admit the evidence under 

Evidence Code sections 1101, subdivision (b), and 1108. 

After lengthy pretrial arguments and an Evidence Code

section 402 hearing, the trial court admitted the fact of West’s 

prior rape conviction, pursuant to Evidence Code section 1108,

but only in sanitized form (the certified record of conviction). The 

court excluded all evidence of the underlying conduct. The People 

filed a motion to reconsider the latter ruling, which the trial court 

denied. 

3.

The trial court did not abuse its discretion in admitting the 

fact of West’s 2003 rape conviction. 

West first contends that his prior conviction was wholly 

irrelevant because it was undisputed that he and Catherine had 

sex. The argument is specious. It was the fact that West claimed 
9

they had sex consensually, and denied using force (or threats of 

force) to overcome Catherine’s will, that made the probative value 

of his prior conviction so high. (See Loy, supra, 52 Cal.4th at p. 

61 [“ ‘[s]ection 1108 assists the jury’s task by allowing the 

accused’s sexual misconduct history to be considered for whatever 

light it might shed on [whether the conduct took place as the 

victim described it]’ ”].)

Similarity between sex crimes increases the probative 

value of uncharged sexual offense evidence. (People v. Lewis 

(2009) 46 Cal.4th 1255, 1287.) However, unlike Evidence Code 

section 1101, subdivision (b), admissibility under Evidence Code 

section 1108 does not require a significant degree of similarity 

between charged and uncharged offenses. (People v. Merriman

(2014) 60 Cal.4th 1, 41.) It is enough that both the charged and 

uncharged offenses are sex offenses as defined by Evidence Code 

section 1108. (People v. Jones (2012) 54 Cal.4th 1, 50; Loy, supra,

52 Cal.4th at p. 63.) Here, both the prior and current offenses 

involved forcible rape (Pen. Code, § 261, subd. (a)(2)), which 

means that they are sufficiently similar. (See Evid. Code, § 1108, 

subd. (d)(1)(A); Jones, supra, at p. 50.) Accordingly, the trial 

court properly presumed that the evidence was admissible.

(People v. Cordova, supra, 62 Cal.4th at p. 132.)

Nor did the trial court abuse its discretion by declining to 

exclude the evidence under Evidence Code section 352. “In 

deciding whether to exclude evidence of another sexual offense 

under [Evidence Code] section 1108, ‘trial judges must consider 

such factors as its nature, relevance, and possible remoteness, 

the degree of certainty of its commission and the likelihood of 

confusing, misleading, or distracting the jurors from their main 

inquiry, its similarity to the charged offense, its likely prejudicial 

impact on the jurors, the burden on the defendant in defending 

against the uncharged offense, and the availability of less 

prejudicial alternatives to its outright admission, such as 
10

admitting some but not all of the defendant’s other sex offenses, 

or excluding irrelevant though inflammatory details surrounding 

the offense.’ ” (People v. Story (2009) 45 Cal.4th 1282, 1295.) 

West fails to point to any circumstances that required the 

trial court to find the presumption in favor of admissibility had 

been overcome. It was appropriate for the trial court to admit the 

fact of West’s prior conviction, under Evidence Code section 1108, 

without testimony about the underlying circumstances. (See

People v. Wesson (2006) 138 Cal.App.4th 959, 968-969.) This did 

not make the uncharged offense wholly dissimilar or reduce its 

probative value to nil. (Id. at p. 969.) If West wished to 

emphasize the dissimilarity of his prior offense, he could have 

presented evidence on that issue. (See ibid.)

The prior rape was not too remote to demonstrate 

propensity simply because it occurred more than 10 years before 

the charged offense. (People v. Branch (2001) 91 Cal.App.4th 

274, 284-285.) As the trial court noted, West was incarcerated 

during a significant part of the 11-year gap between the charged 

offenses and his conviction on the uncharged rape. This 

circumstance mitigates any potential remoteness. (See People v. 

Dejourney (2011) 192 Cal.App.4th 1091, 1106.)

“Evidence of previous criminal history inevitably has some 

prejudicial effect. But under [Evidence Code] section 1108, this 

circumstance alone is no reason to exclude it.” (Loy, supra, 52 

Cal.4th at p. 62.) Here, the evidence was presented in an 

efficient fashion and without any inflammatory detail. In fact, 

the circumstance that West had been convicted of the 2003 

rape—having pled guilty to the charge—“strongly supports” its 

admission. (Loy, supra, at p. 61.) “His commission of those 

crimes had already been established and was thus certain, and 

[West] bore no new burden of defending against the charges. The 

jury would not be tempted to convict him of the charged crime to 

punish him for the earlier crimes.” (Ibid.)
11

The record shows that the court carefully considered the 

evidence, appropriately found that the fact of West’s prior rape 

conviction had significant probative value and took steps to 

minimize any confusion by excluding the conduct underlying his 

conviction. West fails to demonstrate the trial court abused its 

considerable discretion in admitting the evidence. 

B.

West also argues that the prosecutor committed numerous 

instances of misconduct, and that such misconduct in 

combination with the purported evidentiary error was 

prejudicial. We have rejected the notion that the trial court 

abused its discretion in admitting West’s prior rape conviction. 

We deem any prosecutorial error harmless.

1.

The United States Constitution is violated when a 

prosecutor’s conduct is so egregious that it infects the trial with 

such unfairness as to make the resulting conviction a denial of 

due process. (People v. Flores (2020) 9 Cal.5th 371, 403.) A 

prosecutor’s lesser misconduct will violate state law “ ‘ “if it 

involves the use of deceptive or reprehensible methods to 

persuade the . . . jury.” ’ ” (Ibid.) 

2.

In addition to excluding all evidence of the underlying 

conduct of West’s 2003 rape conviction, the trial court also ruled 

that, if West testified, the prosecutor could impeach him with 

three of his prior felony convictions, but that the convictions were 

to be sanitized and referred to only as “felony [convictions] of 

moral turpitude.” 

Despite these rulings, the prosecutor stated (in the People’s 

opening statement): “[Y]ou are also allowed to consider prior 

sexual misconduct in this case. [¶] And you will hear that in 2003 
12

Mr. West did suffer convictions for forcible rape, which is what 

he’s charged with here, as well as first-degree robbery. I will not 

ask you to convict him on that alone, but I will ask you to 

consider that as a factor when it’s time.” (Italics added.) 

At the conclusion of the prosecutor’s statement and outside 

the presence of the jury, defense counsel objected, arguing that 

the prosecutor’s reference to West’s 2003 robbery conviction—

both orally and in a Power Point slide shown to the jury—was in 

violation of the court’s rulings. The trial court agreed. Although 

the trial court denied defense counsel’s motion for a mistrial, it

admonished the jury to disregard the prosecutor’s reference to a 

2003 robbery conviction. Specifically, the trial court instructed 

the jury (as defense counsel requested): “[Y]esterday during 

opening statements you heard the [prosecutor] . . . mention that 

the defendant had a conviction for a violation of a fi[r]st degree 

robbery. This was in violation of a previous Court order. [¶] You 

are not to consider for any reason the first degree robbery. Do 

not consider it for any reason whatsoever.” 

Later, while presenting the People’s case in rebuttal, the 

Prosecutor played an unredacted portion of Sergeant Creed’s 

interview with West that referenced him having been previously 

arrested and convicted. Although the record before us does not 

include defense counsel’s apparent objection or request for 

admonition, the trial court later admonished the jury: “[D]uring 

a portion of the playing of the audio, a portion of the audio was 

inadvertently played, which indicated, along the lines of the 

inspector saying, and the truth is that you have been arrested 

and convicted. That portion of the audio was inadvertently 

played. However, that portion of the audio relates to evidence 

that you have already been presented in this case. You are not to 

speculate to it being anything beyond that. So I’m instructing 

you to not use that portion . . . for anything in any portion of your 

deliberation.” 
13

3.

West contends that, in the above instances, the prosecutor 

committed prejudicial misconduct by exposing the jury to prior 

conviction information that they otherwise would not have 

learned. 

We agree that—by referring to West’s 2003 robbery 

conviction—the prosecutor violated the trial court’s pretrial 

evidentiary ruling, and thereby committed misconduct, 

regardless of whether the violation was intentional. (People v. 

Friend (2009) 47 Cal.4th 1, 33; People v. Crew (2003) 31 Cal.4th 

822, 839.) 

In the second instance of purported misconduct, the record 

is insufficient to demonstrate that West preserved his argument 

by raising a specific objection and requesting admonition. (See 

People v. Dykes (2009) 46 Cal.4th 731, 760 (Dykes) [“ ‘ “a

defendant may not complain on appeal of prosecutorial 

misconduct unless in a timely fashion—and on the same 

ground—the defendant made an assignment of misconduct and 

requested that the jury be admonished to disregard the 

impropriety” ’ ” (italics added)].) Nor does West demonstrate that 

objection may be excused because it would have been futile, or 

admonition would not have cured the harm. (Ibid.) 

In any event, any error is harmless (whether considered 

individually or cumulatively) on the record before us. A 

defendant’s conviction will be reversed for prosecutorial 

misconduct if “it is reasonably probable that a result more 

favorable to the defendant would have been reached without the 

misconduct.” (People v. Crew, supra, 31 Cal.4th at p. 839.)

First, in both instances, the trial court quickly gave 

admonitions that explicitly instructed the jury to disregard the 

prosecutor’s references to any prior conviction other than the 

2003 rape conviction. With respect to the prosecutor’s opening 
14

statement, the trial court also repeatedly instructed the jury that 

“what the attorneys say is not evidence.” We must presume that 

the jury followed these instructions “even where supposedly 

‘improper inflammatory attacks’ are at issue.” (People v. 

Daveggio and Michaud (2018) 4 Cal.5th 790, 857, 861; People v. 

Avila (2006) 38 Cal.4th 491, 571-574.) 

Second, the evidence against West was, if not 

overwhelming, very strong. “ ‘ “Improper evidence of prior 

offense results in reversal only where the appellate court’s review 

of the trial record reveals a closely balanced state of the 

evidence.” ’ ” (In re James B. (2003) 109 Cal.App.4th 862, 875.) 

Even though the jury apparently did not believe the prosecution 

had proved West guilty (beyond a reasonable doubt) of burglary, 

making criminal threats, or of multiple counts of rape, this is not 

such a case. 

Catherine’s testimony (regarding the counts on which West 

was convicted) was corroborated by the accounts she gave to her 

neighbor, the 911 dispatcher, Officer Garcia, and Sergeant 

Creed.

4 Catherine’s account was also corroborated by West’s 

prior rape conviction and the physical evidence. On the other 

hand, West’s testimony—that he and Catherine had consensual 

sex, that he was unable to maintain an erection, and that he 

thereafter only slapped Catherine and restrained her hand—is in 

conflict not only with the physical evidence but also with his own

initial prior statements to police. 

Third, neither fleeting reference to West’s criminal history

is particularly prejudicial when compared to the Evidence Code 

section 1108 evidence, which was properly admitted to show

4 Catherine was impeached with her prior arrest, in 

December 2013, for falsely identifying herself to a police officer. 

She also admitted her own history of violent behavior, including a

conviction for misdemeanor domestic violence and an arrest for 

allegedly pulling a knife on a stranger on a bus. 
15

West’s disposition to commit sex offenses. Indeed, in his own 

appellate briefs, West maintains that the prosecutor’s misconduct 

was prejudicial only in conjunction with the purported 

evidentiary error. Having already concluded that West’s prior 

rape conviction was not admitted in error, we also decide that the 

impact of the prosecutor’s brief reference to West’s 2003 robbery 

conviction was negligible. 

On this record, it is not reasonably probable the jury would 

have reached a more favorable result absent the prosecutorial

error. For the same reasons, the trial court did not abuse its 

discretion in denying West’s motion for a mistrial. (People v. 

Ayala (2000) 23 Cal.4th 225, 283 [standard of review].) West’s 

chances of receiving a fair trial were not irreparably damaged. 

(Ibid.) 

4.

West complains of other instances of purported 

prosecutorial misconduct, which we need not address in detail. 

We have reviewed the record surrounding each instance and 

conclude that, by failing to raise prosecutorial misconduct 

objections and request corresponding admonitions below, West 

forfeited these claims on appeal. (Dykes, supra, 46 Cal.4th at pp. 

763, 766.) Furthermore, any misconduct was harmless (either

considered alone or cumulatively) for the reasons stated above 

and because the trial court sustained other objections, gave 

requested admonishments, and/or granted motions to strike in 

every complained of instance. “A party generally is not 

prejudiced by a question to which an objection has been 

sustained.” (People v. Johnson (2003) 109 Cal.App.4th 1230, 

1236; accord, Dykes, at p. 763.)

C. 

Next, West insists the trial court erred in denying his 

motion to continue sentencing so that he could prepare a motion 
16

for discovery under the California Racial Justice Act of 2020

(Racial Justice Act; §§ 745, 1473, subd. (f), 1473.7, subd. (a)(3)). 

We disagree.

1.

Effective January 1, 2021, the Racial Justice Act permits a 

criminal defendant to challenge a conviction or sentence on the 

ground that it was obtained “on the basis of race, ethnicity, or 

national origin.” (§ 745, subd. (a); Stats. 2020, ch. 317, § 3.5.) 

“The Act sets forth four categories of conduct, any of which, if 

proved, is enough to ‘establish’ a violation of section 745, 

subdivision (a).” (Young v. Superior Court (2022) 79 Cal.App.5th 

138, 147 (Young).) A defendant may establish a violation by 

proving, by a preponderance of the evidence, that “[a] longer or 

more severe sentence was imposed on the defendant than was 

imposed on other similarly situated individuals convicted of the 

same offense, and longer or more severe sentences were more 

frequently imposed for that offense on people that share the 

defendant’s race, . . . than on defendants of other races, . . . in the 

county where the sentence was imposed.” (§ 745, subd. (a)(4)(A).) 

The statute also provides a discovery mechanism: “A 

defendant may file a motion requesting disclosure to the defense 

of all evidence relevant to a potential violation of subdivision (a) 

in the possession or control of the state. A motion filed under this 

section shall describe the type of records or information the 

defendant seeks. Upon a showing of good cause, the court shall 

order the records to be released.” (§ 745, subd. (d).) “[I]n order to 

establish good cause for discovery under the Racial Justice Act, a 

defendant is required only to advance a plausible factual

foundation, based on specific facts, that a violation of the Racial 

Justice Act ‘could or might have occurred’ in his case.” (Young, 

supra, 79 Cal.App.5th at p. 159.) 

“[A]lthough the plausible justification standard is 

‘minimal,’ it must still be ‘based on specific facts.’ [Citation.] 
17

Thus, preparing a discovery motion under the [Act] necessarily 

entails a fairly thorough review of the trial record for any 

remarks or conduct by the trial judge, attorneys, experts, jurors, 

and law enforcement officers that may plausibly support the 

conclusion that a . . . violation ‘ “could or might have occurred” in 

[the] case.’ ” (People v. Garcia (2022) 85 Cal.App.5th 290, 297

(Garcia).) 

Continuances of any criminal hearing “shall be granted 

only upon a showing of good cause.” (§ 1050, subd. (e).) “Whether 

good cause exists is a question for the trial court’s discretion but 

requires at a minimum that the party seeking continuance 

demonstrate it has prepared for the hearing with due diligence.” 

(People v. Johnson (2013) 218 Cal.App.4th 938, 942, italics 

added.) The party challenging the trial court’s continuance 

ruling bears the heavy burden of establishing an abuse of 

discretion. (People v. Beames (2007) 40 Cal.4th 907, 920.)

2.

The jury returned its verdicts on August 30, 2021. About 

five weeks later, on October 5, 2021, the trial court found West’s 

prior conviction allegations true, and set West’s sentencing 

hearing for December 10, 2021—over the People’s objection that 

delaying sentencing was unfair to Catherine. In doing so, the 

trial court cautioned West: “I have agreed . . . to give you a little 

additional time, based on [defense counsel’s] concerns [about your

age and COVID-19 conditions at San Quentin], and . . . based on 

the amount of research and information that will be necessary to 

provide a thorough sentencing memorandum. . . . I need you to 

understand that [December 10] is the date for sentencing. [¶] . . . 

[¶] . . . [I]f you do not appear on that date, I will proceed with the 

sentencing without you being present.” 

In its presentencing report (received on October 27, 2021), 

the probation department recommended West be sentenced to an 

aggregate term of 176 years and four months to life. Sentencing 
18

was continued, on West’s request, to January 28, 2022, and then 

to February 10, 2022. In the interim, the People filed their 

sentencing memorandum, on January 19, 2022, which requested 

imposition of an aggregate sentence of 76 years and four months 

to life. 

In his sentencing brief, West asked the trial court to 

dismiss or strike all three of his prior strikes, pursuant to section 

1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497

(Romero). West also argued that imposition of the life sentence 

mandated by either the one strike law or the habitual sex 

offender law—or any sentence that totaled more than 20 years—

would constitute cruel and unusual punishment given his age 

(68) at that time. 

Two days before the date then set for sentencing, the trial 

court issued its tentative ruling—indicating the court’s intent to 

sentence West to an aggregate term of 75 years to life. On 

February 10, 2022, West refused to appear at the sentencing 

hearing. Sentencing was once again continued to March 3, 2022. 

West was again ordered present, and counsel was ordered to 

notify him that sentencing would proceed in his absence if he did 

not voluntarily appear on that date. 

A little more than a week before the sentencing hearing, 

defense counsel filed a motion for continuance, in which West—

who is African American—requested six weeks to “investigate . . . 

[racially] disparate sentences.” The People opposed the 

continuance request, noting that sentencing had now been set 

and continued several times—at great emotional cost to 

Catherine. The prosecutor also maintained that defense counsel 

had over five months to file a motion for discovery and did not 

present a reasonable excuse for delaying the filing. 

The trial court denied West’s motion to continue 

sentencing—on the grounds that it was untimely and 

unsupported by good cause. Sentencing went forward as 
19

calendared, on March 3, 2022, after West waived his personal 

presence (§§ 977, subd. (b), 1043, subd. (d)). 

At sentencing, the trial court partially granted West’s 

Romero motion and dismissed the strike for the 2003 robbery, but 

otherwise denied the motion. Because West had been previously 

convicted of forcible rape in 2003, the trial court determined that 

his sentence on count one was 25 years to life, under the habitual 

sexual offender law (§ 667.71, subds. (a), (b), (c)(1)) and stayed his 

sentence under the one strike law (and remaining counts). (See 

People v. McQueen (2008) 160 Cal.App.4th 27, 38.) The trial 

court tripled the 25-years-to-life term under the three strikes law 

(§§ 667, subds. (d)-(e), 1170.12, subd. (c)(2)(A)(i)) due to its 

previous findings that he had suffered two prior strikes. 

3.

The trial court did not abuse its discretion by denying 

West’s request for a continuance. 

Defense counsel did not present a reasonable excuse for 

delaying the filing of a motion for discovery approximately five 

months after entry of the jury’s verdicts. In her declaration, 

defense counsel stated that she began looking into a claim under 

the Racial Justice Act after receiving the trial court’s indicated 

sentence, on February 8, 2022. Defense counsel stated that, 

although it already had information suggesting a racially 

disparate pattern of arrests and charging for sex crimes in San 

Francisco, the defense needed more time to investigate racial 

disparity in sentencing. 

This was not sufficient to establish due diligence. After all, 

the Racial Justice Act had been enacted more than a year earlier. 

(Stats. 2020, ch. 317, § 3.5.) And defense counsel had known of 

West’s vulnerability to an extremely long three strikes sentence 

for approximately five months. The trial court’s sentencing 

discretion was limited. (See §§ 667.61, subds. (a), (g), 667.71, 
20

subds. (b), (d); People v. Vargas (2014) 59 Cal.4th 635, 641; People 

v. Hammer (2003) 30 Cal.4th 756, 761; People v. Murphy (2001) 

25 Cal.4th 136, 159–160; People v. Snow (2003) 105 Cal.App.4th 

271, 281, 283.) Despite all this, defense counsel chose not to 

pursue discovery under the Racial Justice Act until immediately 

before the sentencing hearing, after the hearing had already been 

repeatedly delayed. 

Additionally, in California, victims have a right to a prompt 

conclusion of the case. (Cal. Const., art. I, § 28, subd. (b)(9); 

§ 679.02, subd. (a)(10).) By the time of the continued sentencing 

hearing, more than seven years had elapsed since the commission 

of the charged offenses. On this record, the trial court acted well 

within its discretion in denying West’s motion for a continuance.

(See People v. Alexander (2010) 49 Cal.4th 846, 935.)

West’s reliance on Garcia, supra, 85 Cal.App.5th 290 is 

misplaced. In Garcia, our colleagues in division three reversed a 

trial court order denying a continuance of sentencing that was 

requested, in part, for investigation of a Racial Justice Act claim. 

(Id. at pp. 294, 297.) In that case, new counsel was appointed for 

the defendant on remand for resentencing. And counsel had less 

than a week after her appointment “to familiarize herself with 

the case, prepare the sentencing brief, and marshal facts for and 

prepare a motion for discovery under the [Racial Justice Act].” 

(Id. at p. 297.) The Garcia court concluded that the one-week 

period was insufficient and that the “defendant should have been 

given a reasonable opportunity to review the trial record and 

gather relevant information to prepare a motion for discovery.” 

(Ibid.)

Here, in contrast, defense counsel was not new to the case 

and had approximately five months to prepare and file a motion

for discovery, or to otherwise advance the requisite “plausible 

factual foundation” for a claim under the Racial Justice Act. 

(Young, supra, 79 Cal.App.5th at p. 159.) 
21

D.

West also maintains that the trial court abused its 

purported discretion, under recent amendments to section 1385, 

by tripling his 25-years-to-life term on count one. He is wrong.

1.

Effective January 1, 2022, Senate Bill No. 81 (2021–2022 

Reg. Sess.) amended section 1385 to add subdivision (c). (Stats. 

2021, ch. 721, § 1; People v. Olay (2023) 98 Cal.App.5th 60, 64.) 

Section 1385, subdivision (c)(1) provides: “Notwithstanding any 

other law, the court shall dismiss an enhancement if it is in the 

furtherance of justice to do so, except if dismissal of that 

enhancement is prohibited by any initiative statute.” (Italics 

added.) Section 1385, subdivision (c)(2) provides that, in 

determining whether to dismiss an enhancement “under this 

subdivision,” the court must “consider and afford great weight to” 

nine listed mitigating circumstances if proven by the defendant 

(id., subds. (c)(2)(A)–(I)), “unless the court finds that dismissal of 

the enhancement would endanger public safety.” (Id., subd. (c)(2), 

italics added.) One of the mitigating circumstances is: “The 

application of an enhancement could result in a sentence of over 

20 years. In this instance, the enhancement shall be dismissed.”

(Id., subd. (c)(2)(C), italics added.)

West argued, in his sentencing brief, that dismissal of all 

three of his strikes was required under section 1385, subdivision 

(c)(2)(C). The People disagreed. 

2.

Although West concedes that the trial court exercised its 

preexisting Romero, supra, 13 Cal.4th 497 discretion to dismiss

one of his strikes (for the 2003 robbery conviction), West argues

(as he did in his sentencing brief below) that—absent a showing 

that it would endanger public safety—dismissal of all three of his 

strikes was required under section 1385, subdivision (c)(2)(C). In 
22

other words, he insists that the trial court necessarily abused its 

discretion by declining to dismiss the remaining prior strike 

allegations under section 1385, subdivision (c)(2)(C). The People 

have the better argument. 

This division recently held, after extensive review of Senate 

Bill No. 81’s legislative history, that section 1385, subdivision (c),

does not apply to this situation because the three strikes law is 

an alternative sentencing scheme, not an enhancement. (People 

v. Olay, supra, 98 Cal.App.5th at pp. 67, 69; accord, People v. 

Burke (2023) 89 Cal.App.5th 237, 242-244 [“plain language of 

subdivision (c) of section 1385 applies only to an ‘enhancement,’

and the Three Strikes law is not an enhancement”].) West 

presents no reason for us to reconsider that ruling. Accordingly, 

West fails to show any abuse of discretion. 

DISPOSITION 

The judgment is affirmed.

BURNS, J. 

WE CONCUR:

JACKSON, P. J.

CHOU, J.

People v. West (A164873)