Full Opinion

Filed 10/19/26 See dissenting opinion. CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B345690 (Super. Ct. No. 23F-07253) Plaintiff and Appellant, (San Luis Obispo County) v. JONATHON ABENIDO PERKINS, Defendant and Respondent. Jonathon Abenido Perkins pleaded guilty with the clear expectation that the trial court would consider a Romero 1 motion a different judge had denied. The People did not object at the time of plea or sentencing. The court granted the Romero motion and sentenced defendant to 27 years and eight months in prison. Unsatisfied with this outcome, the People appealed, asserting for the first time that the trial court erred by even allowing a 1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). renewed Romero motion. The forfeiture doctrine, animated by the principles of fairness and efficiency, bars this belated claim. The People also argue the court abused its discretion in dismissing a strike under Romero. We reject this claim on the merits. Accordingly, we will affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND 2 In September 2023, defendant went to the home of his ex- girlfriend, Z.C., despite a no-contact criminal protective order. Defendant entered the bathroom as Z.C. prepared for a shower. Defendant was upset that Z.C. was not allowing him to stay there. He said he “was giving her a last chance and he was going to make her want him there.” Defendant then punched Z.C. in her midsection and jaw. Defendant shut and locked the bathroom door, but others in Z.C.’s home forced it open. As Z.C. was trying to leave, defendant grabbed Z.C.’s right hand as well as her hair. Z.C. escaped and 911 was called. After law enforcement arrived, defendant did not comply with verbal commands and was saying, “Shoot me.” After he was restrained, defendant “was making statements like we should kill him or shoot him.” When removed from the patrol vehicle at county jail, defendant was combative and kicked a correctional sergeant, grazing him. Z.C. underwent surgery to address the injuries to her jaw. Her jaw was wired shut, and a plate with four screws was inserted to the left side of her jaw. Z.C. suffered nerve damage that could be permanent. 2 The factual summary of this case is derived from the preliminary hearing transcript. 2 In October 2023, defendant was charged with (1) corporal injury to a spouse/cohabitant with a qualifying prior conviction, a felony (Pen. Code, § 273.5, subd. (f)(1) 3; count 1), along with an enhancement for great bodily injury involving domestic violence (§ 12022.7, subd. (e)); (2) false imprisonment by violence, a felony (§ 236; count 2); resisting an executive officer, a felony (§ 69; count 3); resisting, obstructing, or delaying a peace officer, a misdemeanor (§ 148, subd. (a)(1); count 4); misdemeanor vandalism (§ 594, subd. (b)(2)(A); count 5); and contempt of court for violating a protective and stay away order, a misdemeanor (§ 166, subd. (c)(1); count 6). The information alleged two prior strike convictions—a 2004 conviction for first degree burglary (§§ 459, 460) and a 2012 conviction for criminal threats (§ 422). (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c).) Two serious felony enhancements were alleged based on the same two convictions. (§ 667, subd. (a).) The information alleged one or more aggravating factors listed in California Rules of Court, rule 4.421(a)-(b) may apply. As to the first degree burglary, defendant’s grandmother told responding officers that defendant was sleeping in her backyard. After officers contacted defendant there, he admitted he forced entry into the residence to eat, take cash, and for necessary items. Defendant stated he had nowhere else to go. His grandmother said he had been diagnosed with fetal alcohol syndrome. Her greatest concern was defendant’s well-being. She chose to file charges because he needed help. The precise factual basis for the criminal threats conviction is unclear. In a motion, defendant indicated it “involved an argument between defendant and his son’s mother 3 Undesignated statutory references are to the Penal Code. 3 regarding visitation of their son.” Defendant was convicted of misdemeanor assault (§ 241, subd. (a)) and misdemeanor domestic violence battery (§ 243, subd. (e)(1)) in the same case as the criminal threats conviction. In November 2024, defendant filed a Romero motion, which the People opposed. The People argued defendant committed the current offenses just days after his release from custody for a prior domestic violence incident involving Z.C. The People also noted Z.C. had four teeth removed. In January 2025, Judge Catherine Swysen denied the motion after stating, “[T]his is a very difficult, very difficult decision to make.” In March 2025, the parties appeared before Judge Barry LaBarbera. Counsel confirmed defendant was prepared to plead to all charges. Counsel stated defendant “wants to renew his Romero motion, which has always been his goal.” Judge LaBarbera stated “[t]he main point here is that you want to have me strike a strike, presumably the oldest strike. And I want to make sure you know I’m not promising anything to you. . . . [A]t the time of sentencing, everybody is going to have their say, and then I’m going to decide what I think is a fair result.” After indicating he understood, defendant pleaded guilty to all charges and admitted both the great bodily injury enhancement and the two strikes. At the April 2025 sentencing before Judge LaBarbera, the People stated Judge Swysen previously denied a Romero motion and provided her rationale. After argument, Judge LaBarbera granted the Romero motion as to the burglary strike. He cited the nature of that offense and defendant’s youth (age 19) at the time. Judge LaBarbera also relied on a neuropsychologist’s report that relayed defendant’s history of mental illness, along 4 with allegations of childhood physical and sexual abuse. Judge LaBarbera noted “this is [defendant’s] first violent felony” and commented on his rehabilitative efforts in jail. Judge LaBarbera believed the “ultimate sentence” he would pronounce “is a just sentence” that both protected the People and recognized the damage done to Z.C. and her family. The court sentenced defendant to a total term of 27 years and eight months in prison. DISCUSSION Consideration of Renewed Romero Motion The People forfeited their contention that Judge LaBarbera erred in allowing the renewed Romero motion. “The forfeiture doctrine is a ‘well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not— raised in the trial court. [Citation.]’ . . . Strong policy reasons support this rule: ‘It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.’” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) The People argue an imperfect objection was made. We disagree. Although the prosecutor discussed Judge Swysen’s prior ruling at the sentencing hearing, the prosecutor never stated or even implied that Judge LaBarbera lacked the authority to consider the Romero motion. Instead, the prosecutor invoked Judge Swysen’s ruling for its persuasive value. Accordingly, the People have forfeited this claim of error by failing to object. We decline to excuse the People’s forfeiture. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 [appellate court has discretion 5 to review a forfeited claim].) All parties knew at the time of the plea that Judge LaBarbera would hear the Romero motion at sentencing. If the People had timely objected, Judge LaBarbera could have made a finding regarding Judge Swysen’s availability, or defendant could have reevaluated his decision to plead guilty. By not objecting, the People (intentionally or not) created a situation whereby Judge LaBarbera would either deny the Romero motion, or the People could claim on appeal that Judge LaBarbera erred by hearing the motion at all. The unfairness to defendant, who could once again face life in prison, is evident. Under these circumstances, we will not exercise our discretion to review the forfeited claim. Both in their reply brief and at oral argument, the People cited section 1469, which provides in part that “[u]pon appeal by the people the reviewing court may review any question of law involved in any ruling affecting the judgment or order appealed from, without exception having been taken in the trial court.” (§ 1469.) However, that section “is part of the title and chapter of the Penal Code addressing appeals in misdemeanor and infraction cases and is therefore, on its face, inapplicable.” (People v. Christiana (2010) 190 Cal.App.4th 1040, 1047, superseded by statute on other grounds as stated in People v. Lameed (2016) 247 Cal.App.4th 381, 396, fn. 3.) To the extent the People argue an objection would have been futile, they have failed to make an adequate showing to that effect. (See People v. Jaime (2023) 91 Cal.App.5th 941, 946 [futility exception to the forfeiture rule applies only in unusual and extreme circumstances].) The dissent laments the “judge shopping lamp has now been lit.” We respectfully disagree. Because we do not reach the 6 merits, our opinion leaves undisturbed the principles regarding judicial reconsideration, as articulated in People v. Sons (2008) 164 Cal.App.4th 90 and other cases. Those well-established principles require no further repetition on our part. By contrast, allowing a party to reap the benefit of silence on these facts would confound both the due administration of justice and the public interest. (People v. Scott (1994) 9 Cal.4th 331, 351 [forfeiture invoked “as a matter of policy to ensure the fair and orderly administration of justice”].) Our decision reinforces the importance of vigilance and curtails the possibility that litigants will engage in gamesmanship by purposefully not objecting to a second judge’s reconsideration, secure in the knowledge that the ruling will be overturned on appeal if deemed unfavorable. Application of the forfeiture doctrine in this case is our attempt to keep both the forest and the tree in view. Granting of Romero Motion Trial courts may dismiss a prior strike allegation “in furtherance of justice.” (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 530.) Courts deciding a Romero motion “‘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.’” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) The Three Strikes law “carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so.” (Carmony, supra, 33 7 Cal.4th at p. 378.) “Only extraordinary circumstances justify finding that a career criminal is outside the Three Strikes law.” (People v. Avila (2020) 57 Cal.App.5th 1134, 1140 (Avila).) A court’s decision to dismiss a strike is reviewed for abuse of discretion. (People v. Williams (1998) 17 Cal.4th 148, 162.) Reversible error exists only if “no reasonable judge would have agreed with the trial court’s decision. [Citations.] Unless that standard is met, the appellate court must affirm the decision, even if it ‘“might have ruled differently”’ on the Romero motion ‘“in the first instance.”’” (People v. Dain (2025) 18 Cal.5th 246, 258.) A court can abuse its discretion by, for example, dismissing a strike solely to accommodate judicial convenience or because the defendant pleads guilty. (Romero, supra, 13 Cal.4th at p. 531). Here, the trial court did not abuse its discretion. The court acknowledged the severity of defendant’s conduct in the current case but also significantly weighed the relatively benign nature of the burglary strike, as well as his tender age at that time. Although defendant has not remained crime-free even apart from the strike offenses, the court observed he had not previously sustained a violent felony. (Cf. Avila, supra, 57 Cal.App.5th at pp. 1140-1141.) The court also considered defendant’s challenging background and his efforts in jail. Especially given the court’s thorough explanation, we cannot say that no reasonable judge would agree with its decision. The People rely on People v. Vasquez (2021) 72 Cal.App.5th 374, but that case is distinguishable. Vasquez’s prior strikes were two armed robberies, both serious and violent felonies. (§ 667.5, subd. (c); § 1192.7, subd. (c).) Vasquez’s current charges included attempted murder and two additional armed robberies. 8 (Vasquez, at p. 378.) Defendant’s prior strikes and current offenses, while certainly worthy of punishment, were not as severe. Moreover, the trial court in Vasquez relied on general principles of fairness and justice but “was unable to articulate any reasons” Vasquez fell outside the Three Strikes scheme. (Id. at p. 389.) Here, the court articulated multiple such reasons. The court did not err by referencing fairness, justice, or the lengthy sentence to be imposed even after the strike’s dismissal. (See People v. Garcia (1999) 20 Cal.4th 490, 500, 503.) DISPOSITION The judgment is affirmed. CERTIFIED FOR PUBLICATION. CODY, P. J. I concur: BALTODANO, J. 9 YEGAN, J., dissenting: I respectfully dissent. The judge shopping lamp has now been lit. The majority opinion is ever obedient to the time- honored rule explicated by Witkin that there must be an objection at the trial court level to preserve an issue for appeal. (See 9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 420, pp. 455-457.) This is a good rule which I have applied dozens, if not hundreds of times, in my appellate career. It is expedient and resolves the appellate dispute between the parties on a technical rule. The majority opinion sends the wrong message to the trial court. Witkin recognizes that there is an exception to the “objection below” requirement. The rule “does not apply to matters involving the public interest or the due administration of justice . . . .” (9 Witkin Cal. Procedure, supra, § 427, pp. 463-464.) The second judge should not have “reconsidered” the denial of a Romero motion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) It had the power to rule on a subsequent “Romero” motion. But just because it had the power to do so does not mean that it should have done so. It should have sent the matter back to the first judge who ruled against the defendant after an evidentiary hearing on the merits. This court has previously warned against this haphazard manner of deciding cases at the trial court level. (People v. Sons (2008) 164 Cal.App.4th 90, 100, fn. 7 (Sons).) The majority ignores our previous direction to the trial courts. When cases linger in the trial courts, it is even conceivable that a second judge would agree with the first judge and upon transfer to a third court, the third judge could disagree and rule for the defendant. This, of course, places a premium on judge- shopping and it serves only the defendant’s interests. But it does not serve the interests of the orderly administration of justice. This hypothetical was actually posed and the “shopping for a sympathetic judge” tactic, was rejected in In re Alberto (2002) 102 Cal.App.4th 421, 427. There is something else going on here. The majority opinion “mechanically” focuses on a tree and has, in my opinion, missed the forest. There is a bigger “picture” here. As the California Supreme Court has indicated, appellate courts should not suffer from myopia. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 291.) Here, the real issue transcends appellant Perkins and the district attorney of San Luis Obispo County. The real issue is the orderly administration of justice. As we have indicated in the past, one superior court judge should not have the right to “overrule” another superior court judge. This is precisely what the majority opinion allows and it is at variance with precedent. (See Sons, supra, 164 Cal.App.4th at pp. 99-100 & fn. 7; In re Alberto, supra, 102 Cal.App.4th at pp. 427-428.) There is no principled way to distinguish this precedent: one superior court judge cannot be an appellate court and “overrule” a colleague. “Mechanical Jurisprudence” has been considered and rejected by noted scholars, e.g., Dean Pound and Justice Cardozo. (See Aldisert, The Judicial Process, Theoretically Decision Making, “Roscoe Pound, Mechanical Jurisprudence,” ch. 2, § 5, pp. 304-314.) Application of a strict rule which leads to a result that does not do justice must be avoided. (E.g., Hynes v. New York Central Railroad Co. (1921) 231 N.Y. 229, reprinted in Aldisert, supra, pp. 307-309.) This is exactly what the majority opinion does. I am in the Cardozo and Pound camp. We should dispose of the real issue on the merits. (Wong v. Di Grazia (1963) 60 Cal.2d 525, 532, fn. 9.) We should reverse the grant of the 2 Romero motion, vacate the sentence, allow the defendant to withdraw his pleas and admissions, and refer the matter back to the first superior court judge. We should extinguish the judge shopping lamp. This serves the administration of justice. CERTIFIED FOR PUBLICATION. YEGAN, J. 3 Catherine J. Swysen, Judge Barry T. LaBarbera, Judge Superior Court County of San Luis Obispo ______________________________ Dan Dow, District Attorney, Richard J. Sachs, Senior Deputy District Attorney, for Plaintiff and Appellant. Ava Wallace, under appointment by the Court of Appeal, for Defendant and Respondent.