Filed 7/21/15 P. v. Keith CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

COKILYA TABU KEITH,

Defendant and Appellant.

 H040440

 (Santa Clara County

 Super. Ct. No. C1109943)

A jury found appellant Cokilya Tabu Keith guilty of five counts of second degree 

robbery (Pen. Code, §§ 211-212.5, subd. (c), 1counts 1-5), and as to all counts, found true 

the allegation that appellant was armed with a handgun within the meaning of 

section 12022, subdivision (a)(1). In a bifurcated proceeding, the jury found true the 

allegation that appellant had four prior felony convictions: assault with a firearm (§ 245, 

subd. (a)(2), assault with a deadly weapon or by means of force likely to cause great 

bodily injury with a criminal street gang enhancement (former § 245, subd. (a)(1), 

§ 186.22, subd. (b)(1)); kidnapping (§ 207, subd. (a)), and threats to commit a crime 

resulting in death or great bodily injury (§ 422).

After the court denied appellant’s Romero motion (People v. Superior Court

(Romero) (1996) 13 Cal.4th 497 (Romero)), on November 22, 2013, the trial court 

sentenced appellant to an indeterminate term of 25 years to life consecutive to a 

 

1

 All further section references are to the Penal Code unless otherwise indicated.
2

determinate term of 11 years in state prison. The court imposed various fines and fees 

and awarded appellant 1019 days’ credit for time served.

Appellant filed a timely notice of appeal on November 25, 2013.

On appeal, appellant requests that this court conduct an independent review of the 

in camera hearing that was held on his Pitchess motion (Pitchess v. Superior Court 

(1974) 11 Cal.3d 531 (Pitchess)). Further, appellant argues that the trial court abused its 

discretion and violated his state and federal constitutional right to due process and the 

effective assistance of counsel when the court denied his request for a continuance of the 

sentencing hearing. Finally, appellant contends that the trial court erred in denying his 

motion to strike three of his four prior convictions. For reasons that follow, we affirm the 

judgment. 

Facts and Proceedings Below

Given the issues on appeal, briefly, we set forth the evidence adduced at trial.

On June 21, 2011, around 11:00 p.m., five employees of Seniore’s Pizza in 

Santa Clara were closing up the pizzeria for the night. Suddenly, two African-American 

men, Gilbert Foster and Sean Nevels, entered the pizzeria through the open back door. 

At gunpoint, Foster and Nevels ordered the employees to get down on the ground; the 

employees complied. The two men were wearing hooded sweatshirts and gloves; each 

was wearing a mask.

Foster moved Jesus Sanchez to the office and demanded that he open the safe. 

Sanchez was unable to open the safe because he did not have the key; he told Foster he 

could not open it. Foster struck Sanchez in the back of the head a couple of times with 

the gun and Sanchez fell to the ground. Foster dragged Sanchez to the cash registers and 

made him open them. Foster and Nevels took approximately $1,200 from the cash 

registers.

While the employees were still lying on the ground, Foster and Nevels bound their 

hands with duct tape and electrical wiring. After being in the pizzeria for less than five 
3

minutes, Foster and Nevels fled outside through the back. The employees called 911. 

Walid Eid, the manager of the pizzeria, was watching remotely from San Francisco on his 

cellular telephone as the employees were closing the pizzeria. Eid witnessed Foster and 

Nevels enter the pizzeria. Immediately, Eid called 911.

City of Santa Clara Police Officer Anthony Layton arrived at the scene within a 

few minutes of the dispatch call regarding a robbery in progress at the pizzeria. When 

Officer Layton pulled into the pizzeria’s parking lot with his lights and siren off, he saw a 

white sedan backed into a parking stall near the back door of the pizzeria. Officer Layton 

got out of his patrol car and “deployed” his “AR-15 type assault weapon.”

2 Officer 

Layton saw that the brake lights of the sedan flashed several times. Appellant was alone 

in the white sedan. A few seconds later, appellant attempted to leave the parking lot. At 

that point Officer Robert Martinez arrived. When appellant attempted to drive out of the 

parking lot, Officer Martinez pulled in and appellant veered toward Officer Layton.

Officer Layton pointed his assault rifle at appellant and ordered appellant to stop. 

Appellant made a left turn and stopped in front of the pizzeria. Police officers assisted

appellant, who is a paraplegic, in getting out of the Camry; they arrested him.

The police set up a perimeter in the surrounding neighborhood in an attempt to 

find two suspects who had fled from the pizzeria. Approximately, 30 minutes later, about 

a block away from Seniore’s Pizza, Officers Enos and Bonenberger saw two AfricanAmerican men walking down a driveway of an apartment building on Homestead Road. 

When the officers attempted to make contact with the men, one of them ran. 

Immediately, the officers arrested Foster. A canine officer located Nevels hiding in the 

laundry room of a house on Madison Street. Inside the wall of the laundry room, the 

police found a “do-rag,” a head garment, containing $258 in cash.

 

2

 Officer Layton testified that his AR-15 assault weapon is a rifle.
4

Officers searched the backyards that were between the pizzeria’s parking lot and 

Homestead Road where the police had first seen Foster and Nevels. Officers found two 

surgical masks, duct tape, a blue cloth bag containing cash, cash by itself (some with 

blood on it), a .38-caliber revolver, a .380-caliber semi-automatic pistol, a blue 

sweatshirt, a “wheatish-gold . . . color” sweatshirt, two pairs of pants, a green knit cap, 

gloves, a point of sales card from the pizzeria, and a shoeprint on a container.

Inside the white sedan, the police found a police scanner, a black backpack 

containing Foster’s resume and parole papers, .380-caliber bullets inside a plastic bag, 

and a soft-zipper handgun pouch. On the navigation system inside the white sedan the 

second most recent address was 1468 Kelly Court in San Jose, which was Foster’s 

address. The crime lab determined that the .380-caliber ammunition found in the white 

sedan matched the .380-caliber ammunition the police found in the magazine clip of the 

semi-automatic handgun that they recovered from one of the backyards in the 

neighborhood they searched.

Foster’s DNA was found in a DNA mixture on the .380-caliber ammunition and 

magazine clip of the semi-automatic handgun, one of the surgical masks and possibly on 

two of the gloves, and a duct tape roll. Foster’s and appellant’s DNA was found on a 

water bottle seized from the Camry. The .380-caliber ammunition contained a mixture of 

DNA and there was evidence to conclude that appellant’s DNA was part of that mixture. 

Nevels’s DNA was found on the other surgical mask, a duct tape roll, and possibly on 

one of the gloves.

Forensic cell phone analyses conducted on a Blackberry phone found on the 

driver’s floorboard of the Camry, a Motorola phone found on Foster’s person, and a 

Huawei phone found in a shoe on the Camry’s rear passenger floorboard revealed the 

following. The Blackberry’s call log included an incoming call from a contact listed as 

“Black” and Foster’s cell phone number at 10:36 p.m. on June 21, 2011; and Foster’s cell 

phone number and the contact name “Black” were found in the Huawei phone’s contact 
5

list. Foster’s phone had many incoming and outgoing calls to a contact listed as “Gotti” 

with the number (702) 503-0752, i.e., the phone number for the Blackberry phone. 

Foster’s phone had contacts for “Sean” and “DueceBlack.” The number connected to the 

“DueceBlack” contact was listed as (408) 469-5836.

When the police researched other possible connections between appellant and 

Foster, they learned that Officer Steven Russo of the Marina Police Department had 

stopped appellant in his vehicle on December 21, 2005. Foster was a passenger in the 

vehicle.

Defense

Foster testified for appellant at trial that on June 21, 2011, appellant gave him a 

ride from a job interview and he left his black backpack in appellant’s car. About 

9:30 p.m. that evening, he called appellant to buy some marijuana from him since he 

knew that appellant had a medical marijuana card. Foster said that he rented a black 

Acura or Toyota from a drug user and around 10:00 or 10:15 p.m., he and Nevels met 

appellant at a McDonald’s in Santa Clara. By that time, he and Nevels had already 

planned to rob Seniore’s Pizzeria. Foster said he had a “robbery kit,” which included 

two loaded guns—a .38-caliber and a .380-caliber, extra bullets in a plastic bag, gloves, 

two hooded sweatshirts, sweatpants, an extra pair of shoes, and a police scanner with him 

when he got into appellant’s car.

According to Foster, he and Nevels along with appellant were inside appellant’s 

car smoking marijuana. Foster told appellant that he planned to go to his “girl’s house

and just to go look at the spot around the corner”; and after that he planned to go to his 

mom’s house “immediately”. Foster told appellant that he would call him when he got to 

his mom’s house to let him know that he was “out of harm’s way” and “safe.” Before 

Foster and Nevels left appellant’s car, each put on a “hoody” and gloves, changed their 

shoes, and armed themselves with guns. Foster took his blue bag but forgot his 

backpack, police scanner, and extra bullets; they were left in appellant’s car. The plan 
6

was to escape in the car that Foster had rented, which was parked nearby. Foster said that 

his last words to appellant were, “I’m about to go around the corner and check out this 

little pizza parlor[,]” “I’m going to my girl’s house,” and “I’m going in the house after 

that.” After that, Foster and Nevels robbed the pizzeria. As they were leaving the 

pizzeria, Foster saw a flash of red light, thought it was the police, and attempted to escape 

with Nevels through the backyards in the neighborhood until they were apprehended by 

the police.

Appellant testified on his own behalf. He said that he and Foster were friends and 

Foster often helped him when he travelled to Las Vegas. On June 21, 2011, about 

10:00 p.m., he drove from his house to a hair appointment in Santa Clara. On his way to 

his appointment, Foster called him to say that he had accidentally left his backpack in 

appellant’s car; Foster asked to meet with him. Appellant said that he met Foster at a 

McDonald’s and met Nevels for the first time. All three men smoked marijuana in 

appellant’s car. Appellant thought Foster seemed agitated—“he just didn’t seem 

normal . . . .” When appellant saw Foster and Nevels put on their “hoodies” and change 

their shoes and speak to one another in his car, he realized what was happening. Foster 

told appellant that he was looking to rob the pizzeria. Appellant watched Foster and 

Nevels walk toward Foster’s car and then walk away. After sitting in his car for a few 

minutes, appellant decided to try to prevent Foster from robbing the pizzeria. When 

appellant went to look for Foster, he could not find him, so he drove to the pizzeria that 

Foster had described to him. When appellant arrived at the pizzeria, everything seemed 

normal and he parked in the parking lot. Appellant left his car running, finished smoking 

his marijuana, and checked the location of the hair appointment on his GPS system.

A few minutes later, a police officer drove into the parking lot and appellant tried 

to leave. The officer signaled for appellant to park in a spot; the officer was holding a 

rifle. Appellant pulled into the stall and parked his car. When a second officer arrived, 

they told appellant to get out of his car. Appellant informed them that he required
7

assistance because he is paralyzed. The police helped him out of his car. When they 

requested it, he gave them permission to search his car. Appellant did not know what 

was in the backpacks or that there were bullets in the car. After the police arrested 

appellant, they questioned him at the police station. Appellant believed that the officers 

were trying to implicate him in the robbery and he failed to answer many of their 

questions honestly.

Discussion

Pitchess

Prior to trial, appellant filed a motion pursuant to Pitchess, supra, 11 Cal.3d 531.

Specifically, appellant moved to have the personnel files of numerous Santa Clara 

Officers (Tyson Green, Stephen Sims, Tony Layton, David Schneider, Robert Martinez, 

Todd Cummins, Dave Tanquary, Stacy MacFarlane, and Kiet Nguyen) disclosed to the 

extent that they revealed complaints regarding dishonesty, illegal searches and seizures, 

fabrication of evidence and/or charges, inaccurate police reporting, or excessive use of 

force.

On March 14, 2013, counsel for the City of Santa Clara filed an opposition to 

appellant’s Pitchess motion. In so doing, counsel noted that defense counsel’s 

declaration addressed solely excessive force and false reporting by the various officers; 

counsel requested that disclosure of information regarding complaints, if any, be limited 

to those two areas.

On March 20, 2013, the trial court held an in-camera hearing on the matter. 

The court found that there were no relevant documents to be disclosed to the defense. 

The court ordered the transcript sealed and ordered that the documents that the custodian 

of records brought to the court be maintained for “any period of further review by the 

appellate court . . . .” The trial court conducted an in camera hearing and reviewed the 

officers’ personnel files and files relating to Internal Affairs investigations for some of 
8

the officers, after which the court determined and ordered that no disclosures would be 

made.

Appellant requests that this court conduct an independent review of the reporter’s 

transcript of the in camera Pitchess hearing where the trial court reviewed the files for 

each officer. Appellant asks this court to determine whether any police personnel records 

were withheld incorrectly.

“When a trial court concludes a defendant’s Pitchess motion shows good cause for 

discovery of relevant evidence contained in a law enforcement officer’s personnel files, 

the custodian of the records is obligated to bring to the trial court all ‘potentially relevant’ 

documents to permit the trial court to examine them for itself. [Citation.] [An] officer’s 

personnel record will commonly contain many documents that would, in the normal case, 

be irrelevant to a Pitchess motion, including those describing marital status and 

identifying family members, employment applications, letters of recommendation, 

promotion records, and health records. [Citation.] Documents clearly irrelevant to a 

defendant’s Pitchess request need not be presented to the trial court for in camera 

review.” (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 (Mooc).)

The California Supreme Court has explained that the custodian of records “should 

be prepared to state in chambers and for the record what other documents (or category of 

documents) not presented to the court were included in the complete personnel record, 

and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s 

Pitchess motion.” (Mooc, supra, 26 Cal.4th at p. 1229.)

In this case, after placing the custodian of records under oath, the custodian of 

records produced for the court a long-term personnel file and a short-term personnel file 

for each named officer,

3

plus five Internal Affairs investigations related to some of the 

officers. The custodian of records testified that any investigation related to misconduct or 

 

3

 The custodian of records was unable to produce a personnel record for 

Officer Sims because he no longer worked for the City of Santa Clara Police Department. 
9

excessive force or acts of dishonesty would be located in the files he had brought with 

him. As to each officer, after reviewing all of the files for each named officer that the 

custodian of records produced, the court stated which files it had reviewed.

4

The sealed record at issue here includes a full transcript of the in camera hearing, 

but not the actual personnel files that formed the basis of the trial court’s ruling barring 

disclosure of the requested materials. It appears that the court reviewed everything in the 

short and long term personnel files for each officer as well as documents related to the 

internal affairs investigations for some officers. The sealed transcript that is before us, in 

which the court “state[d] for the record what documents it examined,” is adequate for 

purposes of conducting a meaningful appellate review. (Mooc, supra, 26 Cal.4th at 

p. 1229.)

We have reviewed the record under seal and independently conclude that the trial 

court did not abuse its discretion in its ruling upon the Pitchess motion. (See People v.

Hughes (2002) 27 Cal.4th 287, 330, [an abuse-of-discretion standard of review applies].)

Denial of Appellant’s Motion for a Continuance

Appellant contends that the trial court abused its discretion and violated his right 

to due process by denying his motion for a continuance. We disagree.

At the sentencing hearing held on November 22, 2013, defense counsel stated that 

he had been in contact with appellant’s hairdresser, Vernida Nichols. According to 

defense counsel, Ms. Nichols would have confirmed that appellant had an appointment 

with her to have his hair braided on the night he was arrested. Defense counsel stated 

that appellant’s former counsel, Jacklyn Bentley, did not interview Ms. Nichols or 

attempt to secure her attendance at trial. Defense counsel noted that Ms. Nichols 

indicated to him that she would have been willing to come to trial to testify on appellant’s 

 

4

 It appears that the court reviewed everything in the short and long term 

personnel files for each officer as well as documents related to the internal affairs 

investigations for some officers.
10

behalf if she had been called as a witness. Accordingly, defense counsel asked the court 

to grant a continuance to give him additional time to reduce Ms. Nichols’ statement to a 

declaration and to add an ineffective-assistance-of-counsel claim to appellant’s motion 

for a new trial based upon his former defense counsel’s failure to adequately investigate 

the case in this regard.

The prosecutor opposed defense counsel’s request for a continuance. 

The prosecutor noted that the case had been tried six months earlier and the information 

was just being presented to the court. The prosecutor added that a motion for new trial 

was not “the proper vehicle to explore what she [Nichols] would have said, what she 

would say in court, what she’d say once I cross-examined her, what the trial attorney 

would say about the matter in a habeas corpus-like litigation prior to the judgment in the 

case.” The prosecutor argued that even if the offer of proof proved to be true, it made 

no difference to the case that appellant missed a hair appointment on the night of the 

robbery.

Defense counsel disagreed with the prosecutor and urged the court under the 

authority of “the Fosselman case”5to determine the ineffective assistance of counsel 

claim. Counsel argued “there’s nothing preventing this court from determining that 

claim.”

The trial court denied the request for a continuance. The court stated, “I think the 

major disagreement is whether or not that’s a colorable claim. I don’t think it is. So I’m 

going to deny your request for a continuance. But the record has reflected your offer of 

proof, and both sides weighed in on that, and that will be my ruling.”

Section 1050 governs continuances in criminal cases. The statute provides that in 

 

5

 According to defense counsel, “the Fosselman case, in fact, says that if a trial 

court can determine an ineffective assistance claim, it should.” We assume that defense 

counsel was referring to People v. Fosselman (1983) 33 Cal.3d 572, in which the 

California Supreme Court held that criminal defendants may raise claims of ineffective 

assistance of counsel in a new trial motion. (Id. at pp. 582-583.) 
11

order to continue any hearing in a criminal proceeding, “a written notice shall be filed 

and served on all parties to the proceeding at least two court days before the hearing 

sought to be continued, together with affidavits or declarations detailing specific facts 

showing that a continuance is necessary . . . .” (§ 1050, subd. (b), italics added.) “When 

a party makes a motion for a continuance without complying with the requirements of 

subdivision (b), the court shall hold a hearing on whether there is good cause for the 

failure to comply with those requirements. At the conclusion of the hearing, the court 

shall make a finding whether good cause has been shown . . . . If the moving party is 

unable to show good cause for the failure to give notice, the motion for continuance shall 

not be granted.” (§ 1050, subd. (d).)

Defense counsel made an oral request for a continuance at the start of the 

sentencing hearing without providing the written advance notice to the prosecution or the 

trial court. Plainly, there was a failure to comply with the substantive and procedural 

requirements of section 1050, subdivision (b). However, it does appear that the trial 

court excused defense counsel’s failure to comply with section 1050. 

A continuance may be granted only for good cause, and trial courts have broad 

discretion to determine whether good cause exists. (§ 1050, subd. (e); People v.

Alexander (2010) 49 Cal.4th 846, 934 (Alexander).) The denial of a motion for 

continuance is reviewed for abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 

1101, 1118.) This standard applies to motions to continue sentencing hearings. (See e.g., 

People v. Snow (2003) 30 Cal.4th 43, 77 [continuance to prepare a new trial motion].) 

The party challenging the denial of a continuance bears the difficult burden of 

establishing that the court’s discretion was abused. (People v. Beames (2007) 40 Cal.4th 

907, 920 (Beames).)

Appellant argues the sole issue for the court was whether there was a sufficient 

reason offered to grant a continuance for a few days so counsel could investigate and 

research additional grounds for a motion for a new trial. He asserts that the trial court 
12

denied a continuance on the ground that the additional grounds were not properly raised 

in a motion for a new trial. Appellant misreads the record.

In considering whether to grant a continuance motion, the trial court should 

consider whether the continuance would be useful. (Owens v. Superior Court (1980) 28 

Cal.3d 238, 251.) Further, in determining whether a denial of a continuance amounts to a 

denial of due process, the appellate court looks to the circumstances of each case and the 

reasons presented for the request. (People v. Howard (1992) 1 Cal.4th 1132, 1171-1172.)

The granting or denial of a motion for continuance traditionally rests within the 

sound discretion of “ ‘ “the trial judge who must consider not only the benefit which the 

moving party anticipates but also the likelihood that such benefit will result, the burden 

on . . . the court and, above all, whether substantial justice will be accomplished or 

defeated by a granting of the motion.” ’ [Citation.]” (People v. Barnett (1998) 17 

Cal.4th 1044, 1125-1126.)

It is quite apparent to this court that the trial court denied the motion for a 

continuance on the ground that even if Ms. Nichols’s testimony was as represented in 

defense counsel’s offer of proof, appellant would not be successful in maintaining an 

ineffective assistance of counsel claim on the ground that there was no prejudice to 

appellant.6

Defense counsel indicated that had appellant’s prior counsel interviewed 

Ms. Nichols and secured her trial testimony, she would have corroborated appellant’s 

testimony that he had a hair appointment with her on the night of the robbery. Such 

evidence would have been of no help to appellant’s defense. Plainly, appellant was at the 

crime scene and not at a hair appointment, as the police located him in the pizzeria’s 

 

6

 To prevail on a claim of ineffective assistance of counsel a defendant must 

establish that his counsel’s representation fell below an objective standard of 

reasonableness and there is a reasonable probability that, but for counsel’s deficient 

performance, the result of the trial would have been different. (Strickland v. Washington

(1984) 466 U.S. 668, 686-687; People v. Williams (1997) 16 Cal.4th 153, 215.)
13

parking lot just moments after the robbery. The only disputed issue at trial was 

appellant’s intent. Whether appellant failed to keep a hair appointment on the night of 

the robbery had little or no bearing on whether appellant’s intent was to aid and abet in 

the robbery of the pizzeria or his intent was to stop Foster from robbing it, as he claimed.

Further, the trial court did not violate appellant’s due process rights by denying the 

motion for a continuance. Certainly, the exercise of judicial discretion in granting or 

denying a continuance may not impair a criminal defendant’s constitutional right to due 

process. (People v. Maddox (1967) 67 Cal.2d 647, 655.) Here, the jury heard the

evidence that appellant had a hair appointment on the night of the robbery from appellant

and Foster. The same evidence from Ms.Nichols might have corroborated that that was 

appellant’s original intent, but it would have done nothing to help appellant’s defense as 

it had no bearing on what appellant’s intent was at the time of the robbery. 

For similar reasons, appellant has failed to demonstrate any prejudice stemming 

from the court’s denial of the motion for a continuance. (People v. Doolin (2009) 45 

Cal.4th 390, 450) The evidence that appellant was pursuing would not have changed the 

jury’s verdict. Again, whether appellant had a hair appointment with Ms. Nichols on the 

night of the robbery was irrelevant. Plainly, the trial evidence showed that appellant was 

not at the hair appointment. Thus, the testimony had neither alibi value nor relevance to 

appellant’s intent, since it did not show why appellant failed to keep his appointment. 

Furthermore, the trial evidence showed that appellant was in his car in the parking 

lot of the pizzeria with a police scanner, ammunition for the guns used in the robbery, and 

other items belonging to Foster. This evidence demonstrated that appellant acted with the 

intent to aid and abet Foster and Nevels in the robbery of the pizzeria. Thus, the evidence 

that he had a scheduled hair appointment, even if believed by the jury, would have had no 

bearing on the jury’s verdict. Appellant fails to convince this court that if Ms. Nichols 

had testified the jury would have believed appellant’s explanation of why he was in the 

parking lot of the pizzeria, to stop the robbery—rather than take into consideration the 
14

physical evidence that was in appellant’s vehicle that showed he was aiding and abetting 

the robbery. 

Consequently, we conclude that the trial court did not abuse its discretion in 

denying appellant’s request for a continuance.

Denial of Appellant’s Romero Motion

On November 15, 2013, appellant filed a Romero motion in which he asked the 

trial court to strike three of his four prior strike convictions pursuant to section 1385. 

Appellant’s strike offenses are (1) a 1997 conviction for assault with a firearm in which 

he was sentenced to 28 months in state prison; (2) a 1997 conviction for assault with a 

deadly weapon with a criminal street gang enhancement; (3) a 1997 conviction for 

kidnapping; and (4) a 1997 conviction for making criminal threats. In April 2002, 

appellant was released on parole and on April 1, 2005, appellant’s parole period ended.

In the motion, appellant argued that his current offense, his prior strikes, and his 

character and prospects placed him outside of the Three Strikes law. Appellant pointed 

out that he had had a turbulent childhood, spent most of his life without his father, and 

was forced to move repeatedly, which impacted his ability to maintain lasting 

relationships; moreover, he lived in a crime-ridden neighborhood in San Jose, and was 

paralyzed when he was shot in the back during the commission of one of his crimes. 

Appellant also pointed out that he had completed his parole term without any violations 

or additional offenses. Following his release from prison, appellant said he reestablished 

contact with his children, became a role model to others who suffered from paralysis, and 

lived crime-free for the next decade.

The prosecutor opposed the motion. In so doing, the prosecutor argued that 

appellant could not be deemed to be outside the spirit of the Three Strikes law due to the 

nature and circumstances of his present offenses, his prior serious felony convictions, and 

the particulars of his background, character, and prospects.
15

The trial court denied the motion. The trial court commended both attorneys with 

respect to their briefs on the Romero motion. The court found that they were “both very 

thorough and thought provoking.” However, the court found that appellant was 

“precisely the kind of person that was contemplated by the law with respect to these 

offenses and in considering all of his background.”

Appellant contends that the trial court erred in denying his motion to strike three 

of his four prior strike convictions. We disagree.

In Romero, supra, 13 Cal.4th 497, our Supreme Court held that in cases brought 

under the Three Strikes law a trial court retains the discretion under section 1385 to 

dismiss a prior strike conviction “ ‘in furtherance of justice.’ ” (Romero, supra, at 

p. 530.) A “defendant has no right to make a motion, and the trial court has no obligation 

to make a ruling, under section 1385.” (People v. Carmony (2004) 33 Cal.4th 367, 375.) 

However, a defendant has “the right to ‘invite the court to exercise its power by an 

application to strike a count or allegation of an accusatory pleading, and the court must 

consider evidence offered by the defendant in support of his assertion that the dismissal 

would be in furtherance of justice.’ [Citation.]” (Ibid.) The court in Romero emphasized 

that “[a] court’s discretion to strike prior felony conviction allegations in furtherance of 

justice is limited. Its exercise must proceed in strict compliance with section 1385(a), 

and is subject to review for abuse.” (Romero, supra, at p. 530.)

Recently, in People v. Vargas (2014) 59 Cal.4th 635, our Supreme Court reiterated

that “when facing a motion to dismiss a strike allegation, the trial court ‘must consider 

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 [the 

defendant’s] background, character, and prospects, the defendant may be deemed outside 

the 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.’ ” (Id. at 

p. 641.) In People v. Carmony, supra, 33 Cal.4th 367 the court explained that “[b]ecause 
16

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.” (Id. at p. 378.) Thus, the law creates “a strong 

presumption that any sentence that conforms to [the] sentencing norms is both rational 

and proper.” (Ibid.)

As noted, the granting of a Romero motion is “subject to review for abuse of 

discretion. This standard is deferential. [Citations.] But it is not empty. Although 

variously phrased in various decisions [citation], it asks in substance whether the ruling in 

question ‘falls outside the bounds of reason’ under the applicable law and the relevant 

facts. [Citations.]” (People v. Williams (1998) 17 Cal.4th 148, 162; see also People v.

Garcia (1999) 20 Cal.4th 490, 503.) This abuse-of-discretion standard applies to 

appellate review of the denial of Romero motions. (People v. Carmony, supra, 33 

Cal.4th at pp. 374-376.) It is the defendant’s burden as the party attacking the sentencing 

decision to show that it was arbitrary or irrational, and absent such showing, there is a 

presumption that the court acted to achieve the legitimate sentencing objectives, and its 

discretionary determination to impose a particular sentence will not be set aside on 

review. (Id. at p. 377.) Such a discretionary decision will not be reversed merely 

because reasonable people might disagree. An appellate tribunal is neither authorized nor 

warranted in substituting its judgment for the judgment of the trial judge. (Ibid.)

Appellant argues that his role in the offenses was minimal; and there was no 

evidence offered during trial to substantiate the prosecutor’s claims that he was the 

mastermind behind the robbery. He never entered the pizzeria and did not commit any 

acts of violence. We are not persuaded. 
17

The nature of, and circumstances surrounding, appellant’s present felonies 

supported the court’s decision not to strike any of his prior convictions. Appellant was 

convicted of five counts of robbery. The robberies were violent and serious felonies. 

(§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19)). Appellant, who was at the time a felon, 

was vicariously armed during these five robberies. His status as a felon with a firearm 

was a dangerous combination during the commission of the robberies. (Cal. Rules of 

Court, rule 4.421(a)(2); 7see People v. Pepper (1996) 41 Cal.App.4th 1029, 1037-1038 

[due to the potential for death or great bodily injury from the improper use of firearms, 

public policy generally abhors even momentary possession of guns by convicted felons 

who, the Legislature has found, are more likely to misuse them].)

The robberies involved great violence or a threat of great bodily harm or acts

disclosing a high degree of viciousness—at least one victim was struck in the back of the 

head a couple of times with a gun and then dragged to the cash registers and forced to 

open them. (Rule 4.421(a)(1).) Foster and Nevels committed a take-over style robbery 

using loaded weapons against five unarmed, helpless victims who were struck, dragged, 

and/or bound.

The victims were surprised by the armed intruders who came through an open 

back door as they were closing and cleaning the pizzeria late at night, making them 

particularly vulnerable. (Rule 4.421(a)(3).) The victims were rendered defenseless 

against the armed gunmen when the robbers bound them. (See § 1170.84 [a robbery in 

which a person engages in any tying, binding, or confining of the victim is a

circumstance in aggravation].)

We reject appellant’s argument that he played a minimal role in the robberies. At 

the time, appellant was 35 years old and had a serious criminal record with four prior 

strike convictions. Foster was 25 years old at the time of the crime; and it appears that 

 

7

 All further rules references are to the California Rules of Court.
18

neither Foster nor Nevels had any strike priors. While appellant may have played a 

relatively passive role in executing the robberies, the evidence supports the conclusion 

that he played a major role in the planning of the robberies (despite his testimony to the 

contrary)—which included having two loaded handguns and using Foster and Nevels to 

carry out the robberies, choosing a closed pizzeria free of customers, taking advantage of 

the cover of darkness by committing the crime late at night, choosing a place with no foot 

traffic and a get-away plan through a dark parking lot, taking advantage of the employees 

opening the back door to empty the trash and backing into a stall with a view of the scene

where he waited with his engine running, Foster and Nevels wore surgical masks, 

“hoodies,” and gloves to avoid being identified and had clean clothes for getaway 

purposes, they retained additional ammunition in the getaway car, and had a police 

scanner in the getaway car in order to facilitate the getaway. Appellant’s conduct showed 

a high level of planning or sophistication in committing the robbery. (Rule 4.421(a)(8).) 

Finally, the nature and circumstances of appellant’s prior felony convictions 

supported the court’s decision not to strike any of the priors. Appellant’s four prior strike 

convictions were either serious and/or violent felonies: (1) a 1997 conviction for assault 

with a firearm; (2) a 1997 conviction for assault with a deadly weapon with a criminal 

street gang enhancement; (3) a 1997 conviction for kidnapping; and (4) a 1997 conviction 

for making criminal threats. (See §§ 667.5, subd. (c)(14), 1192.7, subd. (c)(20), (31), 

(38).) According to the probation officer’s report, the priors involved appellant accosting

a vulnerable victim, a 14-year-old boy, at gunpoint on one occasion and attempting to rob 

a convenience store clerk, which turned into a shootout in which appellant was shot on 

another occasion. That appellant chose to return to a life of crime despite the injury he 

received in the shootout in no way distances him from the spirit of the law.

Appellant’s background was far from favorable. Appellant was only 35 years old 

at the time of the robberies and he already had a lengthy criminal history, which started 

when he was just 19 years old. The record shows that appellant was a former gang 
19

member and that he minimized his membership in that gang when speaking with the 

probation officer. Further, he lied to the probation officer, telling him that he was 

“completely innocent” after the jury had already convicted him, which shows a complete

lack of remorse. (Rule 4.414(b)(7).) Although the record reveals that appellant had 

family who supported him and he led a conviction-free life for a period of time, plainly 

he continues to make selfish choices that have impacted his entire family, as well as the 

victims who were the subject of the robberies. Evidently, he has not learned from his 

prior imprisonments. 

In light of the foregoing, it is evident that the trial court did not err in declining to 

exercise its discretion to strike any of appellant’s prior strike convictions, as there was 

nothing to support the court’s doing so “in furtherance of justice.” Rather, the record 

reveals that appellant is precisely the type of offender who should not be deemed outside 

the spirit of the “Three Strikes” law. (See People v. Williams, supra, 17 Cal.4th at p. 163 

[defendant has been taught, through the application of formal sanction, that his criminal 

conduct was unacceptable, but he has failed or refused to learn his lesson].)

Disposition

The judgment is affirmed.
8

_________________________________

ELIA, J.

WE CONCUR:

_______________________________

RUSHING, P. J.

_______________________________

WALSH, J.*

The People v. Keith

H040440

 

*

Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution