People v. Purnell CA2/7

Filed 11/9/26 P. v. Purnell CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN THE PEOPLE, B342844 Plaintiff and (Los Angeles County Respondent, Super. Ct. No. BA455718) v. CAPICE PURNELL, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Craig J. Mitchell and Serena R. Murillo, Judges. Affirmed with directions. Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jonathan M. Krauss and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.  _______________________ This is Capice Purnell’s second appeal from a judgment entered following his conviction for second degree robbery and possession of a firearm by a felon. In his first appeal we conditionally reversed the judgment and remanded to the trial court with directions to conduct a supplemental in camera review of certain law enforcement personnel records pursuant to Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We instructed the court to order the Los Angeles Police Department to produce discoverable information regarding two complaints against Los Angeles Police Officer Louis Garcia we identified in Purnell’s first appeal and any relevant information from the supplemental in camera review. We also directed the trial court to allow Purnell an opportunity to demonstrate prejudice based on the failure of the court to disclose information from the in camera reviews and to order a new trial if it found a reasonable probability that the outcome would have been different had the information been disclosed before trial. In addition, we reversed Purnell’s unauthorized sentence on the gang enhancement and ordered the court to conduct a full resentencing and to exercise its discretion whether to strike one or both of his prior serious or violent felony convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). On remand, the trial court conducted an in camera review and released three additional complaints against Garcia, but the court denied Purnell’s motion for a new trial based on the newly disclosed information. At the resentencing hearing, the court 2 denied Purnell’s motion to dismiss his two prior strike convictions, and it resentenced him to 25 years to life. Purnell contends the trial court abused its discretion by denying his motion for a new trial and refusing to dismiss his prior strike convictions. Purnell also contends, the People concede, and we agree that the abstract of judgment must be amended to reflect an award of 3,096 days of actual custody credits. In all other respects we affirm. FACTUAL AND PROCEDURAL BACKGROUND A. The Robbery and Information On the afternoon of April 23, 2016, Demitrio Morales-Reyes (Morales) was in the parking lot of the Pueblo del Rio Housing Project (the housing project) where he lived. Morales was working on his car with two acquaintances when two Black men, whom Morales later identified as Purnell and John Stewart White, approached him. Purnell and White pointed guns at him, and White demanded Morales hand over his gold necklace. Morales gave his necklace to White, and White and Purnell fled down an alley. The robbery lasted 10 to 15 seconds. Two or three hours later, Morales went to the police station to report the robbery, and he identified Purnell and White from photographs shown to him by Garcia. An information charged Purnell and White with second degree robbery (Pen. Code, § 211),1 including special allegations that Purnell and White each personally used a firearm 1 Further undesignated statutory references are to the Penal Code. 3 (§ 12022.53, subd. (b)) and a principal personally used a firearm in the commission of the robbery (§ id., subds. (b) & (e)(1)). The information also charged Purnell with possession of a firearm by a felon (§ 29800, subd. (a)(1)). The information further alleged both offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1)(A) & (C).) The information also alleged Purnell suffered two prior convictions of a serious or violent felony under the three strikes law (§§ 667, subd. (b)-(i), 1170.12) and two prior serious felonies within the meaning of section 667, subdivision (a)(1). B. The Trial, Convictions, and Sentencing 1. The identification testimony When Morales first arrived at the police station to report the robbery, his initial interview with the desk officer was recorded by the officer’s body camera, and the footage was played for the jury. Morales spoke only Spanish, and his daughter translated the conversation for Morales and the desk officer. Morales described the man who approached him from the front, later identified as White, as having his face covered with a hoodie. He was “fat,” approximately 200 pounds, around 25 years old, and approximately six feet tall. Morales indicated, through his daughter, that he would be able to identify the man if he saw him again. Morales described the man who approached him from behind, later identified as Purnell, as having something over his face and being “well covered up.” Morales said Purnell had a hat or a hoodie covering his face, with just part of his face and eyes showing. Morales stated Purnell was approximately five feet, 4 nine inches tall, weighed around 160 or 170 pounds, and appeared to be in his early 30’s. When asked whether he could identify the man if he saw him again, Morales answered (in Spanish), “No. Yes, I prefer—” and was cut off by his daughter who said, “Yeah.” After Morales’s initial interview, the desk officer called Garcia to the lobby to meet with Morales. At the time, Garcia was assigned to monitor and investigate the criminal street gang that was associated with the housing project where Morales lived. Garcia was familiar with the gang members who frequented the area and had taken or collected photographs of many of them, which he kept on his police department cell phone. Garcia and Morales spoke in Spanish for approximately 10 to 15 minutes in the lobby. Garcia searched his police department cell phone for photographs that matched the general description Morales had provided and showed Morales a series of five photographs.2 Garcia testified that, prior to showing Morales the photographs on his phone, he gave him an admonition in Spanish that the photographs “may or may not be the people involved in the robbery,” and Morales should be aware that “facial features change, such as facial hair and skin tones differ between different pictures, but if he recognizes them or does not, to just please be honest. . . .” Morales identified Purnell and White within the first five photographs Garcia showed him. 2 Garcia acknowledged that he selected Purnell’s photograph to show Morales based on the general description Morales provided (five feet, nine inches), although Purnell was over six feet tall. 5  Garcia then prepared two six-pack photographic lineups, one for Purnell and one for White, using a computer system that identified photographs matching the description and facial features of the suspects. Garcia gave Morales another admonishment regarding identification before showing him the photographs. Morales identified Purnell and White from the photographic lineups. Morales’s trial testimony differed in some respects from his initial recorded statements to the desk officer regarding the robbery. Morales testified Purnell was wearing a hood or hat that covered his face but had holes cut out to expose his eyes, nose, and chin. As Purnell was running away after the robbery, he took off the face covering, and Morales saw his “whole face.” Morales recognized Purnell from the neighborhood. At trial Morales and Garcia also provided their accounts of the statements Morales made to Garcia at the police station, which accounts differed in some respects. Garcia testified Morales told him Purnell was wearing a hoodie and was trying to cover his face. But Morales did not say he could see only Purnell’s eyes. Nor did Morales tell Garcia that Purnell removed his face covering at any point during the robbery. Morales initially testified he told Garcia that Purnell had been wearing a hat that covered his whole face except for his eyes and nose. However, after additional questioning, Morales stated he did not remember whether he told Garcia that he could see only Purnell’s eyes, but he believed he had. Morales then stated he was certain he had. Morales also testified he did not remember whether he told Garcia that he had seen Purnell’s entire face. Later in his testimony Morales stated he had told Garcia that Purnell took off his face covering. 6  Morales also testified he recalled Garcia showing him printed photographs rather than photographs on his phone. When asked on cross-examination whether Garcia provided an admonition prior to showing him the photographs on his phone, Morales responded, “I don’t remember. I don’t think so.” Morales further stated he did not recall whether Garcia said anything specific prior to showing him the six-pack photographic lineup. However, Garcia used his body camera to record the photographic lineup procedure, which showed Garcia giving an admonition in Spanish. The recording was played for the jury. Both Purnell and White presented expert testimony at trial concerning the fallibility of witness identification and proper photographic lineup procedures. Three experts testified regarding the inaccuracies of cross-racial identification, the impaired ability of a witness to focus on a suspect’s face when a weapon is present, suggestibility during photographic identification, and confirmation bias. 2. The Pitchess discovery and related trial court proceedings Prior to trial Purnell filed a Pitchess motion seeking discovery of Garcia’s personnel records related to dishonesty and excessive use of force. The trial court granted the motion and, after an in camera hearing, ordered the disclosure of four complaints against Garcia. One of the complainants testified at trial. Julio Martinez testified that in 2013 he was having a party in the parking lot of his apartment building. Garcia arrived and told Martinez to lower the volume of the music that was playing. Martinez complied, and Garcia left. Garcia returned a few minutes later 7 and told Martinez he was going to arrest him for drinking in public. Martinez walked up the stairs toward his front door. Garcia grabbed Martinez on the back of his shirt collar, and bent Martinez’s arm behind his back. Martinez fell and hit his knees on the stairs. Martinez’s wife told Garcia to stop, and Garcia pushed her. When they arrived at the police station, Garcia searched Martinez and claimed he found a small bindle of drugs in Martinez’s pocket. Martinez maintained the drugs were not his and were not in his pocket prior to the arrest. During trial, Purnell sought with respect to another disclosed complaint to admit evidence regarding a civil complaint filed against Garcia in federal court. The complaint alleged that in 2013 Garcia shot a handcuffed suspect in the back while the suspect was hiding under a police vehicle. The suspect sustained serious injuries. The lawsuit was settled prior to trial, and the complainant had since passed away as a result of unrelated causes. Purnell argued the incident was relevant to show Garcia’s prior bad acts, moral turpitude, and use of excessive force. The trial court excluded the evidence, finding that admission of the allegations in the complaint would require a trial within a trial, and even if the allegations were true, they would have only minimal relevance to Garcia’s credibility. Purnell did not seek to admit evidence concerning the remaining two complaints produced in the Pitchess discovery. 3. The verdicts and sentencing The jury found Purnell and White guilty of second degree robbery and found true the allegation they each personally used a firearm in violation of section 12022.53, subdivision (b), and the gang enhancement allegation under section 186.22, 8 subdivision (b)(1)(C). The jury also found Purnell guilty of possession of a firearm by a felon and found true the gang enhancement allegation with respect to this count under section 186.22, subdivision (b)(1)(A). In a bifurcated proceeding, the trial court found true that Purnell had suffered two prior serious or violent felony convictions within the meaning of the three strikes law and section 667, subdivision (a)(1). The trial court sentenced Purnell as a third strike offender to an aggregate sentence of 65 years to life for the robbery, including the enhancements, and a concurrent term of 25 years to life for possession of a firearm by a felon. C. The First Appeal and Remand In his first appeal Purnell challenged the photographic identification and argued the trial court committed multiple sentencing errors. He also requested we review the sealed record of the court’s in camera Pitchess hearing to determine whether all relevant complaints were disclosed. We concluded the identification procedures employed by Garcia were not unduly suggestive under the totality of the circumstances. (See People v. Purnell (March 16, 2020, B287145) [nonpub. opn.].) We also reviewed the sealed transcripts of the Pitchess hearing and found the trial court had not complied with its obligations because it had not placed the custodian of records under oath. We further identified two additional complaints against Garcia that should have been disclosed. Accordingly, we conditionally reversed the judgment and directed the court to conduct an in camera review of Garcia’s personnel records relating to dishonesty and excessive use of force and to order the Los Angeles Police Department to disclose the complaints and 9 other information regarding the two additional identified complaints and any other complaints identified during the Pitchess hearing. We further directed that, “[f]ollowing the disclosures, the court must allow Purnell and White an opportunity to demonstrate prejudice, and if the court finds there is a reasonable probability the outcome would have been different had the information been disclosed, the court is to order a new trial. For any defendant unable to show prejudice, the original judgment is to be reinstated. . . .” In addition, we ordered that if the court reinstated Purnell’s judgment, then it had to resentence him and correct several sentencing errors. (Purnell I, B287145.) D. The Motion for a New Trial on Remand On remand, the trial court conducted a supplemental Pitchess hearing and ordered disclosure of three additional complaints against Garcia. One complaint related to a 2021 incident in which an individual drove by police officers, including Garcia, who were detaining four gang members that the complainant knew from the neighborhood. The complainant purposefully sped up to distract the officers. The officers followed the complainant and arrested him for attempting to run them down. The complainant alleged Garcia had lied in his police report by stating the complainant had tried to run the officers over and was a gang member. A second complainant stated he was falsely arrested by Garcia in 2016. Garcia stopped the complainant while he was standing near his girlfriend’s vehicle in the housing project. Garcia arrested him for witness intimidation and violation of his probation. The complainant was never charged. 10  The third complaint alleged Garcia had been harassing the complainant’s friend, including by arresting him twice. Purnell’s attorney hired an investigator to contact the friend, who gave the investigator a three-hour recording he had surreptitiously made with his cell phone the second time Garcia arrested him. At one point in the recording, Garcia told another officer that the arrestee had asked him about the 2013 shooting of the unarmed suspect who had been handcuffed under the patrol car. Garcia said, “I think he’s been looking me up cause then he asked me about ah how I shot that guy that was unarmed. . . . Right and I was like, shot him in the ass, the little bitch [laughs]. And then he was just like, ‘But he was unarmed.’ . . . I go, ‘I’m still here, aren’t I?’. . . . Yeah, and I told him, I was like, ‘No matter what you say, this family’s got my back, bro.’” After obtaining information regarding these three complaints, Purnell moved for a new trial. He argued the newly discovered Pitchess information would undermine Garcia’s credibility, which would have impacted the reliability of Morales’s identification at trial. The attorney noted there had been discrepancies between Garcia’s and Morales’s accounts of the photographic identification. For example, Morales did not recall Garcia showing him photographs on his cell phone, nor did he recall Garcia giving him an admonition that the individuals in the photographs may or may not be the robbers and that he should be honest about whether he recognized them. The trial court (the same judge who presided over the trial) denied the motion for a new trial. The court stated it had carefully reviewed the trial record and concluded “the trial testimony of Garcia was such that it called into question the credibility of [Morales]. In reality, Garcia’s testimony, if believed, 11 impeached the testimony of [Morales]. To clearly make this point, the court need merely cite the fact that on several key points, Garcia contradicts [Morales]. . . . In reality, Garcia’s testimony was far more beneficial to the defense than the prosecution.” The court further noted that Morales’s in-court identification of Purnell was “unshakeable,” and Morales had recognized Purnell from the neighborhood. Accordingly, the court found “[t]here is no reasonable probability that, had the defense been in possession of the previously undisclosed Pitchess material, that the outcome of the trial would have been different.” E. Purnell’s Resentencing Purnell moved to dismiss one or both of his prior strike convictions under Romero and section 1385 and requested he be resentenced as a first- or second-strike offender. On November 12, 2024 the trial court denied the motion.3 The court sentenced Purnell as a third-strike offender to an indeterminate term of 25 years to life for robbery. The court struck the two firearm enhancements (§ 12022.53, subds. (b) & (e)(1)), the gang enhancement (§ 186.22, subd. (b)(1)(C)), and the two prior serious felony enhancements (§ 667, subd. (a)(1)). The court imposed a concurrent term of two years on the conviction for possession of a firearm by a felon. Purnell timely appealed. 3 By the time of the sentencing hearing, the judge that had presided over the trial and denied the motion for a new trial (Judge Craig J. Mitchell) was unavailable, and a different judge (Judge Serena R. Murillo) sentenced Purnell. 12  DISCUSSSION A. The Trial Court Did Not Abuse Its Discretion in Denying Purnell’s Motion for a New Trial 1. Governing law and standard of review A trial court’s erroneous failure to disclose Pitchess information is not reversible per se. “Rather, the failure to disclose relevant information in confidential personnel files, like other discovery errors, is reversible only if there is a reasonable probability of a different result had the information been disclosed.” (People v. Gaines (2009) 46 Cal.4th 172, 176.) This inquiry involves “an assessment or weighing of the persuasive value of the evidence that was presented and that which should have been presented.” (Id. at p. 182.) However, the “determination that information in the requested records ought to have been disclosed is not equivalent to a finding . . . that such information would have been admissible, inasmuch as the trial court’s duty to disclose encompasses information that is not itself admissible but which ‘may lead to admissible evidence.’” (Ibid.) “A defendant must do more than show that ‘helpful’ evidence was withheld.” (Id. at p. 183.) “To obtain relief, then, a defendant who has established that the trial court erred in denying Pitchess discovery must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed.” (Id. at p. 182.) “‘“‘We review a trial court’s ruling on a motion for a new trial under a deferential abuse-of-discretion standard.’ [Citations.] ‘“A trial court’s ruling on a motion for new trial is so completely within that court’s discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable 13 abuse of that discretion.”’”’” (People v. McCurdy (2014) 59 Cal.4th 1063, 1108; accord, People v. Parker (2022) 13 Cal.5th 1, 88.) “‘[T]he trial court’s factual findings, express or implied, made on a motion for new trial will be upheld if supported by substantial evidence.’” (People v. Cua (2011) 191 Cal.App.4th 582, 609.) 2. The trial court did not abuse its discretion in finding there was no reasonable probability of a different outcome had the Pitchess materials been disclosed prior to trial Purnell contends he met his burden to demonstrate that had the trial court disclosed the additional Pitchess information before trial, there was a reasonable probability of a different outcome because the evidence undermined Garcia’s character and credibility.4 Specifically, Purnell argues the complaints about 4 Purnell also contends on appeal that it is reasonably probable the additional Pitchess information would have changed several of the trial court’s evidentiary and procedural rulings, including the following: denial of Purnell’s motion to examine Morales outside the presence of the jury prior to Morales’s testimony (regarding Morales’s change in his account of events following his initial conversation with Garcia); the court’s denial of Purnell’s request for contact information for Morales’s daughter (to enable counsel to interview her about Morales’s conversation with Garcia); the court’s exclusion of evidence regarding the federal civil lawsuit against Garcia; and the court’s denial of Purnell’s request to bifurcate trial on the gang enhancements. However, Purnell failed to raise any of these arguments in the trial court. Accordingly, he has forfeited the arguments. (People v. Seumanu (2015) 61 Cal.4th 1293, 1320 [failure to raise argument in trial court results in forfeiture on appeal].) 14 Garcia would have supported his theory that Garcia conducted a suggestive procedure in showing Morales the five photographs on Garcia’s phone and the six-pack photographic lineup, and Garcia included Purnell in the photographs for his “own reasons” despite the fact that Purnell did not match Morales’s initial description of the suspect’s height. Purnell further argues the newly disclosed evidence showed that Garcia had a pattern of targeting specific individuals he believed were gang members and leveling false charges against them. However, even if this evidence were admissible (which Purnell does not address), the trial court did not abuse its discretion in finding the evidence was not reasonably probable to change the outcome in the case. Purnell’s conviction did not depend on Garcia’s identification of Purnell as a suspect or his testimony about Purnell’s actions. Rather, it was Morales who testified about the robbery and his identification of Purnell in the series of photographs and six-pack photographic lineup, and he provided an unequivocal in-court identification of Purnell. Despite the extensive expert testimony regarding the unreliability of witness identification and the problems with the photographic lineup, the jury still credited Morales’s testimony that Purnell was one of the robbers. Purnell has failed to show how evidence that Garcia had previously acted improperly in detaining or arresting other individuals would have cast doubt on the reliability of Morales’s identification. Moreover, Purnell’s contention that Garcia’s prior conduct with other suspects showed that Garcia somehow influenced Morales to identify Purnell as the robber was based solely on speculation. Thus, the trial court did not abuse its discretion in finding that the additional evidence was not reasonably probable to have changed the outcome of the trial. 15  Purnell also challenges the trial court’s finding that Garcia’s testimony helped the defense by undermining Morales’s credibility (and thus evidence challenging Garcia’s credibility would not benefit Purnell). Substantial evidence supported the court’s finding. Purnell acknowledges “the defense cross- examined Garcia to track how Morales’[s] account changed,” yet Purnell asserts the inconsistences revealed by Garcia’s testimony did not benefit Purnell. In making this argument, Purnell ignores the fact that Garcia’s testimony showed that Morales left out critical information in his description of the robbery and suspects that he initially provided to Garcia. For example, on the day of the robbery Morales told Garcia that he could only see the robber’s eyes and nose because of the robber’s face covering, but Morales changed his account at trial, testifying that he could see the robber’s face as he ran away because he removed his face covering. Thus, Garcia’s testimony undermined Morales’s credibility with respect to his in-court identification of Purnell at trial. Yet the jury, in convicting Purnell, impliedly found Morales’s testimony credible. Additional evidence undermining Garcia’s credibility was therefore not likely to have benefitted Purnell at trial. B. The Trial Court Did Not Abuse Its Discretion in Denying Purnell’s Romero Motion 1. The 2024 resentencing hearing As discussed, the trial court found Purnell had suffered two prior serious or violent felonies within the meaning of the three strikes law: a 2006 conviction for robbery and a 2013 conviction for assault with a firearm. In his sentencing memorandum, Purnell moved to strike one or both of his prior strike convictions 16 under Romero and section 1385. Purnell argued he grew up in an unstable home, his mother was a drug user, his father was incarcerated, and he was physically abused by his parents and an uncle. At some point Purnell was removed from his mother’s custody and placed with his grandmother. Purnell’s grandmother subsequently suffered a stroke, and Purnell became her caretaker. Purnell was referred to the regional center when he was 14 years old due to learning disabilities and impaired intellectual functioning, but neither his mother nor grandmother followed up to obtain services for him. Purnell began selling drugs when he was 14 or 15 years old. Further, Purnell argued, in the absence of a male role model, he “gravitated toward the male comradery bond that came with the gang.” Purnell urged the trial court to strike the 2006 robbery conviction because he was only 20 years old at the time, no weapons were used during the offense, and his conviction was 18 years old (as of the 2024 resentencing hearing). He argued the court should strike his 2013 assault with a firearm conviction because he never fired or used the firearm to strike anyone, he apologized for his behavior, he was only 27 years old with limited intellectual functioning, and the conviction was 11 years old. Purnell also asserted in his memorandum that while in custody he had enrolled in domestic violence, drug education, anger management, and parenting programs. He successfully completed a parenting program and an addiction and recovery program, and he was on waiting lists for additional services and programs. Purnell had also begun the process of removing his gang tattoos. Purnell had no disciplinary incidents from 2019 to 17 2021.5 The memorandum concluded, “Purnell has strong family ties and values family. He has demonstrated a maturity within the last 8 years by staying out of trouble in prison. . . . He is almost 40 years old and is not interested in violence.” Purnell submitted two psychological assessments. A psychologist’s assessment stated Purnell had low average to average mental status with no evidence of impairment. The social worker’s assessment stated Purnell’s past behavior “reflect[s] someone who is impulsive, immature, and reckless, all of which lessened his capacity to extricate himself from crime- producing settings.” However, Purnell was “working towards changing his past maladaptive behaviors.” Purnell also submitted a letter from his sister stating that he had strong ties to his family and wanted to make a meaningful contribution to the community. The People opposed Purnell’s Romero motion, arguing Purnell had numerous prior convictions and had “never successfully completed a probationary grant.” Purnell had seven convictions or juvenile adjudications between 2001 and 2016, including his prior strike convictions in 2006 and 2013 and the current conviction in 2017. Further, Purnell committed many of the offenses while he was on parole or probation or shortly after he had been released from custody. At the November 2024 resentencing hearing, the court allowed Purnell to address the court. Purnell recounted that he had a difficult upbringing and did not have any healthy role 5 Purnell did not provide information on his disciplinary record after January 2021. At the end of 2020, he was transferred to Los Angeles County jail, where he remained until his resentencing hearing. 18 models. He was responsible for his disabled grandmother as well as his younger siblings. Regarding the 2006 strike offense, he stated he “made a bad decision [and] went to go rob somebody to put food in my house.” He acknowledged that he was arrested again six months later. He stated, “I’m not no threat to society. I never was.” After hearing argument, the trial court denied Purnell’s Romero motion. The court stated it had reviewed the moving papers and exhibits; probation reports from Purnell’s juvenile adjudications and from the current offense; our opinion in Purnell I, supra, B287145; and Purnell’s criminal history. The court also noted Purnell did not have any rule violations and had successfully completed programming while incarcerated. The court stated that Purnell “very persuasively outlines his sincerity in how he’s improved and reconsidered the conduct that he has engaged in since he was 15 years old. I do not hold it against him. I do feel that his body language and tone do suggest some level of remorse and frankly resignation, and I consider that.” The court also acknowledged the difficulties of Purnell’s childhood, including that he had no stable caregiver and did not receive needed services, adding that the court was “very empathetic as to many of the circumstances presented by [Purnell’s attorney].” However, the court observed that the prior strike offenses were not remote, having occurred 10 and four years before the current offense (which took place in 2016), and they involved violence or use of a weapon. Further, Purnell’s “record is plagued with robbery after robbery or some level of violence against a member of the public, and there has been no respite from that. . . . He gets out of prison, [he] does it again even in his 19 young life.” The court continued, “There was not a single aberrant period. . . . He has a history of violence since he was 15 years old. At the time of the sentencing in this case it was escalating.” The court listed the factors it must consider under Romero and People v. Williams (1998) 17 Cal.4th 148 (Williams) and concluded sentencing Purnell pursuant to the three strikes law was not “outside the scope of what the [three] strikes law was intended to protect.” The court declined to strike either prior conviction. 2. Governing law and standard of review A trial court has discretion under section 1385, subdivision (a), to dismiss a strike conviction for purposes of sentencing in furtherance of justice. (Williams, supra, 17 Cal.4th at p. 158; Romero, supra, 13 Cal.4th at p. 530.) In determining whether to strike a prior conviction, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, at p. 161; accord, People v. Dain (2025) 18 Cal.5th 246, 257 (Dain).) “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); accord, Dain, supra, 18 Cal.5th at pp. 257-258.) A trial court does not abuse its discretion unless its ruling “is so irrational or arbitrary that no reasonable person could agree with 20 it.” (Carmony, at p. 377; accord, People v. McDowell (2012) 54 Cal.4th 395, 430.) The party challenging the sentence has the burden to show the sentence was irrational or arbitrary. (Carmony, at p. 376; People v. Avila (2020) 57 Cal.App.5th 1134, 1140.) “‘“ In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] . . . ‘“‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’” (Carmony, at pp. 376-377.) Because the three strikes law “creates a strong presumption that any sentence that conforms to [the law’s] sentencing norms is both rational and proper,” there are very limited circumstances under which the appellate court will find an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.) These circumstances include where the court is unaware of its discretion to strike a prior conviction; it considers impermissible factors; or, under the circumstances, imposition of a three strikes sentence would be irrational or arbitrary. (Ibid.; People v. Avila, supra, 57 Cal.App.5th at pp. 1140-1141.) Only under “‘extraordinary’” circumstances does the court’s failure to strike a prior conviction constitute an abuse of discretion. (Carmony, at p. 378; accord, People v. Finney (2012) 204 Cal.App.4th 1034, 1040 [“Once a career criminal commits the requisite number of strikes, the circumstance must be ‘extraordinary’ before he can be deemed to fall outside the spirit of the three strikes law.”].) 21  3. Purnell has not shown the trial court abused its discretion Purnell has failed to show the trial court’s ruling denying his Romero motion was “so irrational or arbitrary that no reasonable person could disagree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) The court was aware of its discretion and specifically considered the factors set forth in Williams, supra, 17 Cal.4th 148. As the court explained, Purnell had taken advantage of programming while incarcerated but nevertheless had an extensive criminal history. Further, between 2001 and 2016 Purnell suffered seven felony convictions or juvenile adjudications. In addition, Purnell committed many of the crimes while he was on parole or probation. Purnell argues the trial court failed to take into account his upbringing and the remoteness of the 2006 conviction. However, the court considered the circumstances of Purnell’s upbringing and acknowledged it played a role in Purnell’s repeated offenses. With respect to the remoteness of Purnell’s 2006 conviction, the court rejected Purnell’s argument the conviction was remote, noting the offense was committed only 10 years before he committed the current offense, and Purnell was incarcerated for several years during that period. Purnell is essentially arguing the court should have given less weight to his criminal history and greater weight to his rehabilitative progress and character. However, it is not the proper function of an appellate court to reweigh those factors. (People v. Myers (1999) 69 Cal.App.4th 305, 309.) We recognize that Purnell has made significant positive changes over the past decade. However, nothing in the record shows the court misunderstood its discretion or exercised its discretion in an irrational or arbitrary manner. 22  Finally, Purnell contends that given the Legislature’s “dramatic overhaul of sentencing statutes,” we should take into account that the spirit of the three strikes law is “changing and evolving.” Although Purnell is correct that the Legislature has recently made significant changes to the sentencing schemes for various enhancements, these have not included changes to the three strikes law. (See Dain, supra, 115 Cal.App.5th at p. 253 [although “sentencing laws in general” have recently changed, “the Three Strikes law itself has not changed”].)6 In any event, a trial court is “not free to dismiss [a] strike based on a perceived change in the ‘spirit’ of sentencing laws in general.” (Dain, at p. 653.) C. The Trial Court Must Correct the Abstract of Judgment Purnell contends, the Attorney General concedes, and we agree that the trial court erred in not recalculating Purnell’s custody credits at the 2024 resentencing hearing and in failing to include in the new abstract of judgment the total amount of custody credits the court awarded at the initial sentencing in 2017, plus the actual days Purnell served in custody from the initial sentencing to the 2024 resentencing hearing.7 6 The last significant change to the three strikes law was the voters’ adoption of Proposition 36, the Three Strikes Reform Act of 2012 (§ 1170.126), which reduces punishment for third-strike offenders where th