Trial court lacks discretion to strike a One Strike allegation (Pen. Code, § 667.61) in furtherance of justice pursuant to section 1385. A jury convicted Reyes of a number of sex offenses and found true a One Strike allegation that he committed a forcible rape and forcible oral copulation during the commission of a burglary with the intent to commit those crimes, and that the victim was a child under 14 (Pen. Code, § 667.61, subds. (d), (e), (l)). On appeal, Reyes argued that the trial court incorrectly believed that it lacked discretion to strike the One Strike allegation. Held: Affirmed. Section 1385, subdivision (a) gives a trial court authority to strike in furtherance of justice factual allegations relevant to sentencing, including both enhancement allegations and allegations that support an alternate sentencing scheme. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 518, 529-530.) However, the Legislature may eliminate a court’s power to strike or dismiss under section 1385 by giving a clear direction in the statute. Section 667.61, subdivision (g) provides such clear direction with respect to One Strike allegations. Subdivision (g) states, “[n]otwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section.” The “[n]otwithstanding Section 1385 or any other provision of law” phrase in a statute is a term of art which signals the legislative intent that the statute override or displace contrary or conflicting law, or whatever law would otherwise govern. Here, the Legislature expressly intended to override the trial court’s power under section 1385 by referencing that statute. The trial court did not misunderstand the scope of its discretion.

One Strike sentence of LWOP for committing two forcible sex offenses does not constitute cruel and unusual punishment. Reyes also argued that his One Strike LWOP sentence amounted to cruel and unusual punishment under the Eighth Amendment and article I, section 17 of the California Constitution, and that his trial counsel was prejudicially ineffective for failing to object on those grounds. The Court of Appeal disagreed. Reyes forced his way into a home and forcibly raped and orally copulated a 14-year-old minor. Because those are grave offenses that warrant severe punishment, his LWOP sentence was not so disproportionate to the crime for which it was imposed that it shocks the conscience and offends fundamental notions of human dignity. This is so even though Reyes did not use violence or physically injure the victim.

Prosecutor did not commit misconduct by arguing during closing rebuttal that the victim’s sexual orientation was evidence she did not consent. During closing rebuttal, the prosecutor remarked that the fact the victim was a gay female was evidence she did not consent to sex with Reyes, a man. Reyes argued that the prosecutor’s remarks amounted to reversible misconduct. The Court of Appeal disagreed. Prosecutors have broad discretion to argue inferences and deductions from the evidence to the jury. Misconduct cannot be based on a prosecutor’s remarks that are responsive to defense counsel’s argument, as long as those remarks do not go beyond the record. (People v. Hill (1967) 66 Cal.2d 536, 562.) Here, during closing, defense counsel argued there was evidence the victim consented. The prosecutor’s rebuttal responded to that argument and his remarks did not go beyond the record because the victim had testified about her sexual orientation, although not in the context of consent. The prosecutor’s rebuttal was a fair response to the defense’s closing.

Prosecutor’s misstatements concerning the reasonable doubt standard during his closing argument did not require reversal. During closing, the prosecutor argued, “Reasonable doubt comes into play only if you have a reasonable doubt.” Defense counsel objected that the prosecutor misstated the standard and the court instructed the jury to refer to the jury instructions. On appeal, Reyes argued that the misstatement amounted to reversible misconduct. The Court of Appeal disagreed. Reversal is required only if there is a reasonable likelihood the jury understood or applied the prosecutor’s misstatements in an improper or erroneous manner. (People v. Wilson (2005) 36 Cal.4th 309, 337.) Here, there was not a reasonable likelihood that the jury improperly applied the prosecutor’s misstatements. The court properly instructed on reasonable doubt with CALCRIM No. 200 and, after the challenged statements, the trial court referred the jury back to its instructions. A court presumes “that jurors treat the court’s instructions as a statement of law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Centeno (2014) 60 Cal.4th 659, 676.)

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069277M.PDF