Opinion
E078421
10-25-2023
THE PEOPLE, Plaintiff and Respondent, v. PAUL HOWARD HUPP, Defendant and Appellant.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF2101138. James B. Jennings, Judge.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MENETREZ J.
A jury convicted Paul Hupp of criminal threats, attempted criminal threats, and misdemeanor elder abuse. On appeal, Hupp contends that (1) the trial court violated his constitutional right to a fair trial by requiring him to wear a leg brace under his pants and by denying his request for two new shirts so he would not have to wear the same outfit each day of trial; (2) the evidence is insufficient to support his convictions for attempted criminal threats and elder abuse; (3) under the United States Supreme Court's recent decision in Counterman v. Colorado (2023) 600 U.S. 66 (Counterman), his threat-based convictions violate the First Amendment and therefore must be reversed; (4) the court violated Penal Code section 1385's prohibition against multiple enhancements by imposing the out-on-bail enhancement; (5) the court applied an incorrect legal standard in denying his motion to strike his 2013 strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); and (6) the abstract of judgment does not reflect that the court struck the restitution fine, or in the alternative, if the fine was not stricken, the court violated the principles articulated in People v. Duenas (2019) 30 Cal.App.5th 1157 by failing to determine Hupp's ability to pay.
We agree with Hupp that the trial court's remarks during sentencing demonstrate that it failed to consider the mandatory factors set out in People v. Williams (1998) 17 Cal.4th 148 (Williams) when determining whether he fell outside the spirit of the "Three Strikes" law for purposes of the Romero motion. We therefore vacate Hupp's sentence and remand for the trial court to reconsider the Romero motion. Because we are vacating the sentence, we need not decide the merits of Hupp's arguments concerning the restitution fine, but at resentencing he may raise arguments concerning ability to pay. We conclude that Hupp's remaining arguments lack merit, and we accordingly affirm the judgment in all other respects.
BACKGROUND
A. The Incidents
The victims are Hupp's neighbors, Sonja and Earl, a married couple in their 70's. Early in the evening on September 5, 2022, Sonja was walking her 20-pound Maltese, Dixie, past Hupp's house while Hupp happened to be in his front yard. Sonja noticed Hupp was holding a dog in his arms and standing near four other dogs who were off-leash and appeared to be pit bulls. Sonja remarked to Hupp as she walked by, "I hope you have control over them," to which Hupp responded "Fuck you, bitch." He told Sonja to mind her own business and proceeded to scream additional obscenities at her.
Scared and upset, Sonja cursed back and told Hupp he was breaking their homeowners association's rules by having that many dogs. As the two argued, another neighbor, Leilani, heard the commotion and came over to see what was going on. Sonja was shaking and seemed to Leilani to be upset. Thinking that Sonja might need help, Leilani joined in the argument and told Hupp that he could not talk to the neighbors that way. Hupp responded, "You fucking bitch, you need to go."
At trial, Leilani testified that Hupp threatened her and Sonja during the encounter. He said to Sonja, "You fucking whore, I'm going to kill you. You fucking bitch, I'm going to kill you." And he told Leilani, "I'm going to fucking kill you and your dogs." After the incident, Leilani filed a police report in which she claimed that she was not afraid of Hupp during the altercation. At trial, however, she told the jury she had in fact been afraid.
Sonja testified that she did not hear everything Hupp yelled at her during the argument. She heard him call her numerous derogatory names and threaten to kill Leilani, but she did not hear him threaten to kill her. Even so, Sonja testified that Hupp's outburst made her feel nervous, shaken, and scared.
Two days after Hupp's altercation with Sonja and Leilani, he attacked Sonja's husband, Earl, on the sidewalk. Earl is a 73-year-old Army veteran with multiple health conditions. He has high blood pressure and arthritis in both knees, and he lost his left eye and sustained arm and hip injuries in Vietnam. Because of the arthritis and hip injury, he has trouble walking or standing for long periods without assistance. On the morning of September 7, 2021, Earl was using his mobility scooter to take Dixie for a walk. As he was picking up after Dixie, he heard someone cussing at him from behind, calling him a "son of a bitch" and other derogatory names. He turned around to see Hupp standing about two feet away from him, "raging mad." When Earl asked what was the matter, Hupp shoved him in the chest with both hands, making him stumble backwards. Hupp called Sonja a "dirty cunt," told Earl he was going to kill them both, and drove off.
After two bystanders helped Earl back onto his scooter, he went to the community management office to report Hupp. At trial, the community's property manager testified that Earl was very distressed when he reported the incident. She said that Earl was shaking, crying, and having a hard time breathing. He seemed frightened and kept saying he "felt so vulnerable" and there was "nothing [he] could do." At some point he called Sonja to warn her that Hupp was threatening to kill them both. He told her to be careful and not to open the door. Earl requested that Leilani, who is an emergency medical technician, perform a physical check on him.
Leilani testified that Earl appeared shaken up and told her that he was experiencing chest pain. His blood pressure reading was 200 over 120, which was "extremely high."
Earl testified that he was scared of Hupp during the incident and remains afraid of him.
B. Propensity Evidence
As permitted by Evidence Code section 1109, the prosecution presented evidence that in 2017 Hupp assaulted another neighbor by driving a car towards him and nearly hitting him. The neighbor, who was in his mid-70's, had a restraining order against Hupp at the time. As a result of the incident, Hupp was convicted of misdemeanor assault with a deadly weapon and violating a restraining order.
C. Verdict and Sentencing
The People tried Hupp on one count of criminal threats against Leilani, one count of attempted criminal threats against Sonja, one count of criminal threats against Earl, and one count of misdemeanor elder abuse against Earl. (Pen. Code, §§ 422, 664, 368, subd. (b)(1); unlabeled statutory citations refer to the Penal Code). The jury deadlocked on the charge of criminal threats against Leilani but convicted Hupp on the remaining counts. In a bifurcated trial, the court found that Hupp had suffered a prior strike conviction and also found true the allegation that he committed the present offenses while released on bail in a San Bernardino County case. (§§ 667, 1170.12, 12022.1.) The court sentenced Hupp to four years in prison for the offenses, and it imposed but stayed a two-year term for the on-bail enhancement pending the outcome of the San Bernardino County case.
That case is San Bernardino County case No. RIF1902599, in which a jury convicted Hupp of four counts of resisting an executive officer (§ 69). Hupp has filed an appeal from the judgment in that case (case No. E079543).
DISCUSSION
A. Right to a Fair Trial
Hupp, who represented himself at trial, argues that the court violated his constitutional right to a fair trial by (1) requiring him to wear an unnecessary physical restraint that he claims was visible to the jury and hampered his ability to present his defense and (2) denying his request for funds to purchase new shirts so that he would not have to wear the same outfit each day of trial. We disagree.
1. The leg brace
At a pretrial hearing on December 6, 2021, Hupp informed the court that he was wearing a leg brace, and he requested that he not be required to wear any physical restraints in front of the jury. The bailiff interjected, explaining that, for security reasons, any defendant who is not shackled must wear a leg brace under their pants while in the courtroom. When Hupp argued that the brace was obvious and the jury would be able to see it, the court asked him to stand so it could see his legs. The court remarked that it could not see the brace and did not think the jury would see it either. The court noted that it could see "some bulges" under Hupp's pant leg, but the court said that they looked more like bandages of some sort rather than a physical restraint. The court also observed that Hupp had no problems walking with the brace, to which Hupp responded, "it's not [about] walking around fine. It's [about] the jury seeing it, just standing up." After assuring Hupp that the jurors would not be able to see his legs if he stood at the lectern while addressing them, the court reserved its ruling and said that it would revisit the issue if Hupp decided to testify (which he never did).
The next day, the court told Hupp that it had "done some investigation of [its] own" by speaking with the Riverside County Sheriff about the reasons for the brace and had learned that the brace was "not specific to [Hupp]; that it is 100 percent applied to every defendant in every case where the defendant is in custody." The court said that it did not think it could interfere with the sheriff's decision to require Hupp to wear a leg brace, because it was part of a blanket policy that "applies to every defendant in Riverside County." Hupp responded, "it really doesn't matter if it applies to me or everyone in the entire system.... [I]f it's a violation of [a] constitutional right, it's a violation."
The court reiterated that the brace was not recognizable as such under Hupp's pant leg. The court offered to give the jury instruction regarding physical restraints but remarked that doing so might call the jury's attention to what they otherwise would not notice. Hupp refused the instruction.
At trial, after the People rested, Hupp filed a motion to dismiss his case, arguing that the court had erred by deferring to the sheriff's general restraint policy and failing to make a finding of manifest need for the brace. He claimed that every juror had seen the brace when he gave his opening statement at the lectern and when they walked past him while entering and exiting the courtroom. The court denied the motion, reasoning that the likelihood of prejudice stemming from the brace was "minimal" because the sheriff's policy was of general application and therefore did not signal to the jury that Hupp was "particularly dangerous, or particularly a flight risk."
As Hupp argues and the People correctly concede, the trial court abused its discretion by deferring to the sheriff's policy. In People v. Duran (1976) 16 Cal.3d 282, our Supreme Court held that a defendant may be physically restrained at trial only if there is a "manifest need for such restraints." (Id. at p. 291.) As relevant here, a trial court "may not delegate to law enforcement personnel the decision whether to shackle a defendant." (People v. Seaton (2001) 26 Cal.4th 598, 651.) Rather, the court must base its finding of manifest need "upon a showing of unruliness, an announced intention to escape," or any other "nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained." (People v. Hill (1998) 17 Cal.4th 800, 841.) Moreover, the showing of nonconforming behavior must be specific to the defendant and "must appear as a matter of record." (Ibid.; see also Holbrook v. Flynn (1986) 475 U.S. 560, 568-569 ["shackling[ ] should be permitted only where justified by an essential state interest specific to each trial"], italics added.) By deferring to the sheriff's general policy instead of making a case-specific finding of manifest need for the restraint, the trial court erred.
But the court's error does not automatically require reversal. As the People point out, appellate courts have consistently held that unjustified restraints are not prejudicial "if there is no evidence that the jury saw the restraints, or that the [restraints] impaired or prejudiced the defendant's right to testify or participate in his defense." (People v. Anderson (2001) 25 Cal.4th 543, 596.) Despite Hupp's assertions to the contrary, there was no evidence that the jury became aware he was restrained and no evidence that the brace impaired his ability to present his defense. Hupp relies on the fact that he repeatedly asserted on the record that the jury had seen the brace. However, his speculation about what the jurors saw is not evidence and was in any event contradicted by the court's observations that the brace was not recognizable as a restraint. (See People v. Cleveland (2004) 32 Cal.4th 704, 740 [imposition of restraint was harmless where the court specifically found the jury had not seen the braces]; see also ibid. [noting that "brief observations of physical restraints generally have been found nonprejudicial"]; People v. Tuilaepa (1992) 4 Cal.4th 569, 584 ["Prejudicial error does not occur simply because the defendant 'was seen in shackles for only a brief period either inside or outside the courtroom by one or more jurors"'].) Even if we give Hupp the benefit of the doubt and assume that the bumps in his pant leg caused by the brace were visible to the jurors, there is no evidence-or even uncorroborated assertions by Hupp-that the jurors would have inferred he was wearing a physical restraint rather than bandages or some type of medical device. On this record, there is no evidence that the jury became aware that Hupp was physically restrained during trial.
Hupp also claims that the brace "caused him pain and distracted him both physically and mentally," but the record forecloses the argument. Not only did Hupp concede to the trial court that his objection to the brace was not based on discomfort but on the jury's ability to see it, but also the transcripts reveal that he competently and zealously advocated for himself during trial.
Hupp's reliance on People v. Burnett (1980) 111 Cal.App.3d 661 to contend otherwise is unavailing. In Burnett, the appellate court held that the unjustified shackling of the defendant to his chair was prejudicial because his election not to testify may have been "based on inhibition produced by the restraints." (Id. at p. 670.) In contrast, the record before us confirms that Hupp's much less restrictive restraint had no impact on his decision not to testify, because the court told him that it would revisit the issue if he elected to testify.
Finally, we reject Hupp's contention that the court erred by failing to provide an instruction on physical restraints "once the jury became aware" he was wearing the brace. Hupp is correct that a trial court has a sua sponte duty to provide a jury instruction on physical restraints if the restraints are visible. "In those instances when visible restraints must be imposed the court shall instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant's guilt. However, when the restraints are concealed from the jury's view, this instruction should not be given unless requested by defendant since it might invite initial attention to the restraints and thus create prejudice which would otherwise be avoided." (People v. Duran, supra, 16 Cal.3d at pp. 291-292, italics added.) However, the duty was not triggered during his trial. The brace was not visible; it was covered by his pant leg, and there is no evidence that the jury became aware that he was wearing a restraint. Hupp relies on his own assertions in his motion to dismiss as evidence to the contrary, but his speculation on the matter is not evidence. Consequently, the sua sponte duty never arose in this case, and it was incumbent on Hupp to request the instruction.
The rule against unjustified physical restraints "seeks to avoid . . . the 'possible prejudice in the minds of the jurors, the affront to human dignity,"' and "the effect such restraints have upon a defendant's decision to take the stand." (People v. Anderson, supra, 25 Cal.4th at p. 596.) Because there is no evidence of any such effect at Hupp's trial, we conclude that the court's unjustified imposition of the leg brace did not render the proceedings unfair.
2. Clothing
Before trial, Hupp filed a motion asking for "two (2) new 2XL polo shirts for trial," which the trial court denied. After the close of evidence, Hupp filed a motion to dismiss on the ground that he had been "forced to wear the exact same clothes every day for trial" and his shirt and pants had become dirty. The court denied the motion.
Hupp argues that the trial court violated his right to a fair trial by failing to provide him with the means to avoid wearing the same outfit in front of the jury five days in a row. As the People correctly point out, Hupp's claim is not grounded in a constitutional right. Although criminal defendants are constitutionally entitled to wear civilian clothing at trial, the right is no more specific than that. In other words, there is no constitutional right to clean civilian clothing or to a different outfit each day of trial. Hupp cites no authority to the contrary.
"[T]he State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes ...."
(Estelle v. Williams (1976) 425 U.S. 501, 512.) "There are substantial reasons for the rule that a criminal defendant is entitled to be tried in ordinary clothing." (People v. Taylor (1982) 31 Cal.3d 488, 494 (Taylor).) First, "jail clothing is a constant reminder to the jury that the defendant is in custody, and tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor." (Ibid.) "'The prejudice may only be subtle and jurors may not even be conscious of its deadly impact, but . . . [j]urors required by the presumption of innocence to accept the accused as a peer, an individual like themselves who is innocent until proved guilty, may well see in an accused garbed in prison attire an obviously guilty person to be recommitted by them to the place where his clothes clearly show he belongs.'" (Ibid., quoting Estelle, at pp. 518-519 (dis. opn. of Brennan, J.).) Second, "the defendant may be handicapped in presenting his defense by the embarrassment associated with his wearing jail garb." (Taylor, at p. 495.)
In this case, there was no risk of such harms because Hupp was not clothed in prison attire; he wore civilian clothing throughout the proceedings. Hupp contends, however, that having to wear the same outfit in front of the jury for five days nevertheless "suggest[s]" his incarceration. We are not persuaded. Because there are reasons besides being incarcerated why a person might wear the same outfit every day of trial, Hupp's clothing was not a "constant reminder to the jury that [he was] in custody." (Taylor, supra, 31 Cal.3d at p. 494.) We therefore reject Hupp's claim that the court violated his right to a fair trial by failing to provide him with new shirts.
B. Attempted Criminal Threat Conviction
Hupp contends that his conviction for attempted criminal threats is not supported by substantial evidence. We disagree.
In resolving a substantial evidence claim, we review "the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) We resolve all conflicts in the evidence and credibility questions in favor of the verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
The elements of a criminal threat in violation of section 422 are: (1) The defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person; (2) the defendant made the threat with the specific intent that the statement was to be taken as a threat, even if there was no intent of actually carrying it out; (3) the threat was, on its face and under the circumstances in which it was made, so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat actually caused the person threatened to be in sustained fear for their own safety or for their immediate family's safety; and (5) the threatened person's fear was reasonable under the circumstances. (See generally People v. Bolin (1998) 18 Cal.4th 297, 337-340 &fn. 13.) A person commits an attempted criminal threat if, with the "requisite intent," they make a "sufficient threat directly to the threatened person, but for some reason the threatened person does not understand the threat." (People v. Toledo (2001) 26 Cal.4th 221, 231.)
The record contains sufficient evidence to support the conviction for attempted criminal threats because Hupp told Sonja that he was going to kill her but she did not hear it and hence did not understand it. Leilani testified that Hupp told Sonja, "You fucking whore, I'm going to kill you. You fucking bitch, I'm going to kill you." Although Sonja testified that Hupp had screamed various insults and obscenities at her, his threat to kill her was not one of the things that she heard. On the basis of that evidence, the jury could reasonably conclude that Hupp committed an attempted criminal threat against Sonja.
In arguing otherwise, Hupp contends that his statement was merely an emotional outburst. He claims that he was merely reacting to Sonja and Leilani's provocation (i.e., their arguing with him), and he points out that he never "moved toward" Sonja during the interaction and his "dogs never left his property." That is the same characterization of the incident that Hupp presented during closing argument, and the verdict demonstrates that the jury rejected it.
The record supports the jury's determination. As an initial matter, an utterance can be both an emotional outburst and a criminal threat. It is not difficult to imagine a criminal threat resulting from provoked anger. Additionally, for purposes of guilt under section 422, it does not matter that Hupp did not act on his statement or even intend to. (See People v. Wilson (2010) 186 Cal.App.4th 789, 806 ["section 422 does not require an intent to actually carry out the threatened crime"].) What matters is that when he made the statement, the circumstances suggested he was prepared to carry it out-that is, "the threat must be such that it would cause a reasonable person to fear for his or her safety." (Ibid.)
In deciding whether that was the case, the jury could consider the totality of the circumstances surrounding the statement, such as Hupp's "mannerisms, affect, and actions" as he spoke, "as well as [his] subsequent actions." (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.) The record contains evidence that Hupp was visibly angry during his argument with Sonja and was still angry two days later when he pushed Sonja's husband and threatened to kill both him and Sonja. On the basis of that evidence, the jury was free to disbelieve Hupp's claim that he was merely ranting and to conclude instead that his words to Sonja were a threat. We therefore conclude that the attempted criminal threats conviction was supported by substantial evidence.
C. Elder Abuse Conviction
Hupp also contends that his conviction for elder abuse is not sufficiently supported by the record because there was no evidence that his act of pushing Earl was "likely to produce great bodily injury." We disagree.
Subdivision (b)(1) of section 368 provides that "[a] person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering," is guilty of elder abuse. (Italics added.) Whether the injury is inflicted under circumstances likely to produce great bodily injury is a factual question for the jury. (People v. Sargent (1999) 19 Cal.4th 1206, 1221.) Circumstances relevant to that consideration "include, but are not limited to, (1) the characteristics of the victim and the defendant, (2) the characteristics of the location where the abuse took place, (3) the potential response or resistance by the victim to the abuse, (4) any injuries actually inflicted, (5) any pain sustained by the victim, and (6) the nature of and amount of force used by the defendant." (People v. Clark (2011) 201 Cal.App.4th 235, 245.)
The prosecution presented evidence that Hupp screamed at, threatened to kill, and pushed a 73-year-old man with high blood pressure, arthritic knees, and injuries that further impair his ability to stand and walk. As an immediate result of the push, Earl stumbled backward and almost fell. Not long afterwards, he experienced pain in his chest, high blood pressure, and trouble breathing and speaking. From that evidence, the jury could reasonably find that Earl was a particularly vulnerable target for whom even a shove would be dangerous (that is, likely to produce great bodily harm).
That Earl merely stumbled and did not fall when pushed does not, as Hupp claims, show that Hupp's conduct "carried a low probability of serious injury." Although that may be true of a younger person in better physical health, Hupp chose to accost a man 13 years his senior with physical impairments.
Moreover, Hupp's focus on the immediate aftermath of the push overlooks the symptoms that Earl exhibited after Hupp drove off-the high blood pressure, trouble breathing, and pain in the chest. From that evidence, the jury could reasonably conclude not only that a broken bone was likely but also that Hupp's aggressive conduct was likely to have caused something more serious, like a heart attack. The jury could reasonably accord more weight to the evidence of Earl's vulnerability and the obvious signs of distress he showed shortly after the incident than to the fact that he did not fall when pushed.
For these reasons, we conclude that the record sufficiently supports the elder abuse conviction. D. The Counterman Decision
While this appeal was pending, the United States Supreme Court held in Counterman that the First Amendment requires a mens rea of at least recklessness for any offense based on a true threat. To obtain a conviction for such an offense, "the State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence." (Counterman, supra, 600 U.S. at p. 69.) We granted Hupp's request for supplemental briefing on the effect of that holding, if any, on Hupp's threat-based convictions. Having reviewed the parties' briefs, we agree with the People that the jury instructions exceeded the constitutional requirement articulated in Counterman because they required proof that Hupp intended his statements be taken as threats. Because willfulness is a more culpable mental state than recklessness, we reject Hupp's claim that his criminal threats and attempted criminal threats convictions violate the First Amendment.
E. Section 1385's Prohibition Against Multiple Enhancements
Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) amended section 1385 to include subdivision (c). (Stats. 2021, ch. 721.) As relevant here, the provision states that when multiple enhancements are alleged in a single case, "all enhancements beyond a single enhancement shall be dismissed." (§ 1385, subd. (c)(2)(B).) Hupp argues that the court violated that provision, which was in effect at the time of his sentencing, by imposing the on-bail enhancement while also doubling his sentence on count 3 under the Three Strikes law. We conclude that Hupp's claim fails because, as the court recently held in People v. Burke (2023) 89 Cal.App.5th 237 (Burke), the prohibition applies only to enhancements and the Three Strikes law is an alternate sentencing scheme, not an enhancement. (Burke, at p. 244.)
In Burke, the court explained that subdivision (c) of section 1385 expressly concerns enhancements, which have a "well-established technical meaning in California law" as "'additional term[s] of imprisonment added to the base term.'" (Burke, supra, 89 Cal.App.5th at p. 243.) Likewise, "[i]t is equally well established that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for the current offense." (Ibid.) Because we must presume that the Legislature was aware of both definitions, we agree with Burke that "section 1385, subdivision (c)'s provisions regarding enhancements do not apply to the Three Strikes law." (Id. at p. 244.)
We accordingly conclude that the trial court did not violate section 1385's prohibition against multiple enhancements by doubling Hupp's sentence on count 3 under the Three Strikes law and imposing the on-bail enhancement.
F. Romero Motion
Hupp argues that the trial court applied an incorrect legal standard when it denied his Romero motion. We agree.
Section 1385, subdivision (a), gives trial courts discretion to strike "prior felony conviction allegations in furtherance of justice." (Romero, supra, 13 Cal.4th at p. 530.) In making that determination, a trial court must balance the constitutional rights of defendants, including the right to avoid disproportionate punishment, against society's legitimate interest in the fair prosecution of properly charged crimes. (Id. at pp. 530531.) In Williams, our Supreme Court held that when considering a Romero motion, "the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's 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." (Williams, supra, 17 Cal.4th at p. 161.)
We review a trial court's decision not to strike a sentence enhancement under section 1385, subdivision (a), for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371.) The court abuses its discretion if its decision is arbitrary or the record affirmatively shows the court misunderstood the scope of its discretion or applied the wrong legal standard. (People v. Lua (2017) 10 Cal.App.5th 1004, 1020.)
After the court found that Hupp had suffered a 2013 conviction for criminal threats and the conviction qualified as a strike for purposes of the Three Strikes law, Hupp filed a Romero motion asking the court to strike the conviction on the ground that he fell outside the spirit of that law. At sentencing, the court considered the motion at length and explained its reasoning for denying it. The court began by agreeing with Hupp that one of his current offenses, the attempted criminal threat against Sonja, was the result of provocation. But the court stated that although the provocation for that offense, Hupp's age, and the fact that he had never physically injured anyone were mitigating factors for other sentencing considerations, "they don't go to whether [to] strike the strike. They don't go to that."
The court reasoned that because Hupp had reoffended after sustaining the 2013 strike conviction, it had no choice but to find that he fell within the spirit of the Three Strikes law because Hupp was supposed to have been "deterred from this for the rest of your life .... And you weren't." The court had "looked for a way to get rid of the strike" but could not find a legal basis for doing so because of the similarities between the criminal threat offense against Earl and Hupp's prior strike offense, which was also for criminal threats. The court explained, "I personally find that there's no legal cause that I can use to say that that strike should be stricken in view of what you did . . . to [Earl]."
The appellate record does not contain information regarding the facts of Hupp's strike offense.
Hupp argues that the record demonstrates that the court misapplied Williams's standard for determining whether he fell outside the spirit of the Three Strikes law. We agree. As Hupp points out, the factors that the court stated it could not consider-his age, the fact that he was provoked before committing one of the current offenses, and the fact that he had never physically injured anyone-are mandatory considerations under Williams. They relate to Hupp's background and the nature of his current and past offenses. (See Williams, supra, 17 Cal.4th at p. 161 [courts "must consider" the "nature and circumstances" of the defendant's present offenses and prior strike offenses, as well as the defendant's "background, character, and prospects"].)
The People argue that Hupp has not affirmatively shown error because it is unclear from the court's comments whether it viewed those factors as "irrelevant" or instead merely determined that they "did not justify striking the prior strike." As we interpret the court's remarks, there is nothing to indicate it had considered the factors and concluded that they were outweighed by others. The court stated that although the factors "ought to go to other things," they "don't go [to] whether to strike the strike. They don't go to that." In our view, that statement lends itself to only one reasonable interpretation: The court believed that the factors were relevant to other sentencing considerations, but it viewed them as irrelevant or inapplicable to the Romero analysis. Under Williams, that was error. (Williams, supra, 17 Cal.4th at p. 161.)
Moreover, we cannot say that the error was harmless. The court remarked at multiple points in its analysis that it had looked for a way to strike the strike but could not find a legal basis for doing so. Given those remarks, we cannot conclude that there is no reasonable probability that Hupp would have obtained a more favorable result but for the court's error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Rather, given the totality of the court's analysis, there is at least a reasonable probability that the court would have granted the Romero motion had it known that it was required to consider the factors that it identified as mitigating. We therefore vacate Hupp's sentence and the order denying the Romero motion, and we remand for the court to reconsider the motion under the correct standard and then resentence Hupp. We express no opinion on whether the Romero motion should be granted.
G. Restitution Fine
At sentencing, the court imposed a restitution fine of $3,000 (Pen. Code, § 1202.4), a $120 court operations assessment fee (Pen. Code, § 1465.8, subd. (a)(1)), and a $90 criminal conviction assessment fee (Gov. Code, § 70373, subd. (a)(1)). Hupp objected that he could not afford to pay the fines, and when the court asked the People for a response, the prosecutor said, "They're generally stricken under Duenas, I believe." The court replied, "All right. I'll strike them." The abstract of judgment reflects that the court struck the court operations assessment and criminal conviction assessment fees but imposed the $3,000 restitution fine. On appeal, Hupp argues that the abstract of judgment conflicts with the court's oral ruling.
Because we vacate Hupp's sentence, the fines and fees are vacated as well. Hupp remains free to argue at resentencing that he lacks the ability to pay.
DISPOSITION
The sentence and the order denying the Romero motion are vacated, and the matter is remanded for the trial court to reconsider whether to strike the 2013 strike conviction under the standard articulated in Williams and then resentence Hupp. In all other respects, the judgment is affirmed.
We concur: MILLER Acting P. J. RAPHAEL J.