P. v. Guzman
Filed 9/5/13 P. v. Guzman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JAIRO FIDEL GUZMAN,
Defendant
and Appellant.
E050850
(Super.Ct.No. RIF143965)
OPINION
APPEAL
from the Superior Court
of
County. J. Thompson
Hanks, Judge. Affirmed in part as
modified; reversed in part.
Dacia
A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gary W. Schons, Assistant Attorney General, Barry Carlton, Felicity Senoski and
Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant Jairo Fidel Guzman of
459),
stolen property (count 2—§ 496, subd. (a)), felon in possession of a
firearm (count 4—§ 12021, subd. (a)(1)), and active participation in a criminal
street gang (count 6—§ 186.22, subd. (a)).
The trial court found true allegations that defendant had suffered two
prior strike convictions. (§§ 667,
subds. (c) & (e), 1170.12, subd. (c)(2)(A).) Prior to sentencing, the court denied
defendant’s Romero
convictions. The court sentenced
defendant to an aggregate term of 75 years to life consisting of the
following: 25 years to life on count 1;
25 years to life on count 2, stayed pursuant to section 654; a consecutive 25
years to life on count 4; and a consecutive 25 years to life on count 6.
On
appeal, defendant raises three arguments:
(1) insufficient evidence supports defendant’s conviction for active
participation in a criminal street gang because the People failed to adduce evidence
defendant promoted, furthered, or assisted felonious conduct by members of his
gang; (2) the court erred in neglecting to stay the sentence on count 4
pursuant to section 654; and (3) the court erred in denying defendant’s
consider any admissible evidence of the circumstances of defendant’s prior
strike conviction behavior that, he asserts, constituted one course of
indivisible conduct. We agree that the
court erred in neglecting to stay the sentence on count 4; we, therefore,
modify defendant’s sentence to reflect the sentence on count 4 is stayed. In light of the California Supreme Court’s
decision in People v. Rodriguez
(2012) 55 Cal.4th 1125 (Rodriguez),
we reverse defendant’s conviction on count 6.
In all other respects, we affirm the judgment.
On
May 18, 2008, between 7:00 and 7:20
a.m., Lauree sat outside her home, which abuts the trail access to Mount
Rubidoux in the City of Riverside. She heard a vehicle with a very loud diesel
engine coming up the street. From her
yard she could see the vehicle was a large, white, full-sized truck with a
black construction rack and a broken taillight.
She saw the vehicle drive up her street, then heard it turn around and
drive back the way it came. She
identified defendant as the driver of the truck.
Lauree
then heard, in succession, the vehicle park, its door open, the sound of
shattering glass, an automobile alarm go off, the vehicle start back up, and
drive off. She saw the vehicle again as
it drove away. Lauree called the police;
she then went out her door where she saw a green van with a broken window. At trial, Lauree identified pictures of
defendant’s father’s vehicle as the truck she saw on May 18.
Jolanda
testified she had parked her van near Mount
Rubidoux, rolled up her windows,
locked her doors, and left for her daily walk.
When she returned from her walk, her van had been broken into; one of
her windows was broken and her purse had been stolen.
On
May 22, 2008, between 12:00 and 12:30
p.m., Jeff was in his driveway; he saw a white truck with a loud
diesel motor and a black construction rack driving up the street. Jeff wrote down the truck’s license plate
number. Defendant was the driver of the
vehicle. Jeff called the police and
provided them with a description of the vehicle and the license plate number.
Riverside
Police Detective Kevin Townsend, was assigned to investigate the May 18, 2008, vehicle burglary. He spoke with both Jeff and Lauree; the
former gave him the license plate number of the truck. Detective Townsend accessed a DMV database;
it revealed that “Fidel Guzman,†residing at an address in the City of Riverside,
was the registered owner of the vehicle.
Fidel Guzman was defendant’s father.
Detective Townsend monitored the residence over the next four or five
days. On May 27, 2009, he witnessed defendant driving the
truck. Detective Townsend called for a
marked police vehicle and together they conducted a traffic stop of
defendant.
Detective
Townsend then returned to the residence to conduct a search with other
officers. In one room he found pictures
of defendant; men’s clothing; mail in defendant’s name; East Side Riva (ESR)
gang graffiti, including defendant’s gang moniker “Frostâ€; a civil gang
injunction with defendant’s name on it; gang tattoo stencils; and a loaded
.38-caliber revolver. The handgun’s
serial number had been secreted under paint.
Detective Townsend also found Jolanda’s purse in the trashcan in the
driveway outside defendant’s house; the purse still contained a number of
Jolanda’s credit cards. Additionally,
Detective Townsend noticed a motorcycle in the backyard; he took a picture of
its VIN. When Detective Townsend entered
the VIN number it into a database it came back as stolen. Riverside Police Officer Aurelio Melendrez
assisted Detective Townsend in the search of the residence. In the same room, Officer Melendrez also
found mail with defendant’s name on it, photographs of defendant, a newspaper
article regarding a gang injunction against ESR that was marked with numerous
items of gang graffiti, and a marking for the number “13,†an insignia used by
the Mexican Mafia.
The
People charged defendant by information with vehicle burglary (count
1—§ 459), receiving stolen property (the purse) (count 2—§ 496, subd.
(a)), receiving stolen property (the motorcycle) (count 3—§ 496, subd. (d)),
felon in possession of a firearm (count 4—§ 12021, subd. (a)(1)) with an
attached gang enhancement (§ 186.22, subd. (b)), obliteration of the firearm’s
serial number (count 5—§ 12090), and active participation in a criminal street
gang (count 6—§ 186.22, subd. (a)).
Prior to trial, defendant moved pursuant to section 995 to strike count
5 and the gang enhancement attached to count 4.
The court granted the motion.
At
trial, Detective Brian Smith of the Riverside Police Department’s gang
intelligence unit testified as the People’s expert gang witness. Defendant’s residence was in ESR
territory. Defendant’s first contact
with the gang task force was in April 2001, when defendant was photographed
with 23 ESR members throwing ESR hand signs.
Defendant was contacted in June 2004, in relation to a robbery committed
by three ESR members. Defendant admitted
being a member of “Clique Los Primos†(CLPS), a sub-group of ESR, and that his
gang moniker was “Frost.â€
In
August 2006, defendant registered with law enforcement as a member of ESR. He again admitted being a member of CLPS,
with the moniker “Frost.†There were no
tattoos noted on defendant at that time.
In February 2005, defendant pled guilty to the crime of assault with a
deadly weapon while causing great bodily injury; he admitted that the offense
was committed for the benefit of or in association with ESR; he also admitted
being an active participant in ESR.
Defendant again registered as a member of CLPS on January 15, 2008, with
the moniker “Frost.†At that time,
defendant was noted to have tattoos reading “CLPS†and “ESR†on his chest,
“‘Park,’†and “‘Avenue’†on his triceps.
“Park Avenue†is another subset of ESR.
Papers found in defendant’s room after the search of his residence
contained numerous ESR gang-related graffiti.
Defendant was one of the original 114 people listed on the civil gang
injunction entered against ESR. Since
his incarceration, defendant had received a list of rules endorsed by the
Mexican Mafia, which were only dispersed to active gang members. Detective Smith opined that defendant was an
active member of ESR in May 2008.
After
the People rested, defendant moved to dismiss all counts pursuant to section
1118.1. The trial court granted
defendant’s motion as to count 3, but denied it as to the remaining counts.
A. INSUFFICIENCY OF THE EVIDENCE TO
SUPPORT CONVICTION FOR THE SUBSTANTIVE GANG OFFENSE IN COUNT 6
We
rendered our initial opinion in this matter on January 4, 2012. On May 15, 2013, the parties filed a
stipulation to recall the remittitur in view of the California Supreme Court’s
denial of defendant’s petition for review on March 21, 2012, “without prejudice
to any relief to which defendant may be entitled after this court decides
decision in Rodriguez on December 27,
2012. On June 25, 2013, we issued an
order recalling the remittitur, vacating our original opinion, and reinstating
the appeal for the limited purpose of issuing a new opinion on the issue of the
sufficiency of the evidence of defendant’s conviction for active participation
in a criminal street gang in light of Rodriguez.
Defendant
contended that in order for a defendant to be convicted of active participation
in a criminal street gang, the People must prove the defendant committed a
separate felony offense with other
members of his gang. In other words,
although defendant may be the primary perpetrator of the offense, unless it is
committed with other members of his gang, a conviction for active participation
in a criminal street gang cannot be sustained.
Thus, because the People failed to adduce any evidence that defendant
committed any of the underlying offenses with members of his gang, his
conviction on count 6 must be reversed.
The People originally argued, to the contrary, that any felonious
conduct committed by an active gang member constitutes active participation in
a criminal street gang, regardless of whether other gang members participate in
the underlying crimes. In our original
opinion, we held that the primary perpetrator of a crime may be found
criminally liable for active participation in a criminal street gang whether or
not he is accompanied by fellow gang members during the commission of the
underlying offenses.
“‘In
reviewing a challenge to the sufficiency
of the evidence, we do not
determine the facts ourselves. Rather, we
“examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence
that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.†[Citations.]
We presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence. [Citation.]
[¶] The same standard of review
applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance
allegations. [Citation.] “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.†[Citation.]
We do not reweigh evidence
or reevaluate a witness’s credibility.’
[Citation.]†(
1186, 1215.)
Section
186.22, subdivision (a) reads: “Any
person who actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious
criminal conduct by members of that gang . . . .†In
Rodriguez, supra, 55 Cal.4th
1125, the California Supreme Court held that “section 186.22(a) reflects the
Legislature’s carefully structured endeavor to punish active participants for
commission of criminal acts done collectively with gang members.†(Id.
at p. 1139.) Thus, the court concluded
that a gang member who commits an offense alone, whether gang related or not,
is not in violation of section 186.22, subdivision (a). (Ibid.)
Here,
there was no evidence defendant committed any of his offenses collectively with
any other gang member. Thus,
defendant’s conviction for active gang participation in count 2.
B. SECTION 654
Defendant
contends his sentence for active participation in a
because the underlying felonies supporting the conviction are the same felonies
that constituted the other counts in this case.
(§ 654.) We agree.
Section
654, subdivision (a), provides: “An act
or omission that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest potential
term of imprisonment, but in no case shall the act or omission be punished
under more than one provision.†Our
Supreme Court has “broadly†construed section 654. (People
v. Rodriguez (2009) 47 Cal.4th 501, 507.)
Our high court has concluded section 654 applies “not only where there
was but one ‘act’ in the ordinary sense . . . but also where a course of
conduct violated more than one statute and the problem was whether [the course
of conduct] comprised a divisible transaction which could be punished under
more than one statute within the meaning of section 654.†[Citation.]
[¶] Whether a course of criminal conduct is divisible and therefore gives rise
to more than one act within the meaning of section 654 depends on the
objective, the defendant may be punished for any one of such offenses but not
for more than one.’ [Citation.]†(Rodriguez,
at p. 507.) A trial court’s finding that section 654 is
applicable will be upheld on appeal if it is supported by substantial
evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 626 [Fourth Dist.,
Div. Two].)
The
“course of conduct†in the instant case is defendant’s burglary of Jolanda’s
vehicle and/or defendant’s possession of a firearm.
for the burglary of Jolanda’s vehicle.
Defendant’s conviction on count 2 addressed the possession of Jolanda’s
stolen purse. Defendant’s conviction for
count 4 accounted for his prohibited possession of a firearm due to his status
as a felon. Based upon these
convictions, defendant’s “course of conduct†has already been divided into two
individual acts. There is not a third
act in the course of conduct for us to analyze whether defendant harbored a
separate or simultaneous intent. Rather,
the active participation offense is based on the same acts that comprised the
convictions for counts 1, 2, and/or 4.
Therefore, presumably, section 654 should result in a stay of sentence
on count 6. However, the issue of
whether defendant’s active participation sentence should be stayed is not so
easily resolved.
Our
Supreme Court is currently considering the issue of whether section 654 applies
when a defendant has been given a sentence for (1) active participation in a
street gang (§ 186.22, subd. (a)), and (2) a separate sentence for the crime
used to prove the underlying felony element in the active participation
offense. (People v. Mesa (2010) 186 Cal.App.4th 773, review granted Oct. 27,
2010, S185688.) The Courts of Appeal are
split on the issue.
This
court has concluded section 654 bars the imposition of the active participation
sentence when a defendant has already been sentenced for the act that
constitutes the underlying felony in the active participation offense. (Sanchez,
supra, 179 Cal.App.4th at p.
1316.) In Sanchez, we reasoned that if an offense were used to satisfy the
underlying felony element of the active participation offense, then the same
act and intent “almost by definition†had to be involved in both crimes. Therefore, we concluded a defendant could not
be punished for both active participation and the underlying felony, pursuant
to section 654. (Ibid.)
Courts
“‘construe statutes and regulations in a manner that carries out the
legislative or regulatory intent.
[Citation.] [Courts] must
“‘ascertain the intent of the [drafters] so as to effectuate the purpose’†of
the regulations. [Citation.] The words used are the primary source for
identifying the drafter’s intent.
[Citation.] [Courts] give those
words their usual and ordinary meaning where possible. [Citations.]
[Courts] give significance to every word, avoiding an interpretation
that renders any word surplusage.
[Citation.] [Courts] also
interpret words of a regulation in context, harmonizing to the extent possible
all provisions relating to the same subject matter. [Citation.]’ [Citation.]â€
(In re Espinoza (2011) 192
Cal.App.4th 97, 104 [Fourth Dist., Div. Two].)
Section
186.22, subdivision (a), provides: “Any
person who actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious
criminal conduct by members of that gang, shall be punished by imprisonment in
a county jail for a period not to exceed one year, or by imprisonment in the
state prison for 16 months, or two or three years.â€
Looking
at the plain language of the statute, and giving the words their usual and
ordinary meanings, it appears the statute was designed to punish people who
actively participate in a gang. Our high
court has concluded “that the phrase ‘actively participates’ needs no further
description.†(People v. Albillar (2010) 51 Cal.4th 47, 58.) However, the Supreme Court explained that
“section 186.22(a) imposes criminal liability not for lawful association, but
only when a defendant ‘actively participates’ in a criminal street gang while
also aiding and abetting a felony offense committed by the gang’s members. [Citation.]â€
(Castenada,
element of section 186.22, subdivision (a).
Therefore, every conviction for section 186.22, subdivision (a),
includes the finding that defendant committed an underlying felony.
A
problem arises because the underlying felony is chargeable as an independent
offense, e.g., robbery or rape.
Additionally, if a defendant intended to assist or promote the gang,
then that issue can be addressed by the gang enhancement set forth in section
186.22, subdivision (b). As a result,
the substantive offense of active participation in a gang is essentially
meaningless, because if a defendant committed a felony to benefit a gang, then
a prosecutor could simply charge the defendant with the felony and the gang
enhancement—there is no need to charge the defendant with the active
participation offense because the charges would be practically identical, and
therefore, the application of section 654 would render the active participation
offense meaningless. For example, the
gang enhancement requires the felony be committed “with the specific intent to
promote, further, or assist in any criminal conduct by gang members,â€
(§ 186.22, subd. (b)), while the active participation offense requires
that a person “willfully promotes, furthers, or assists in any felonious criminal
conduct by members of [the] gang†(§ 186.22, subd. (a)). Accordingly, if section 654 is applicable to
the active participation offense, then the active participation offense is a
redundancy in the Penal Code, since it serves no purpose, as a defendant’s
sentence for the conviction would be stayed by section 654 due to the active
participation offense always involving the same act as the underlying felony.
The
plain language of the statute has left us with the issue of section 186.22,
subdivision (a), appearing redundant or superfluous; therefore, we look to the
legislative intent related to the subdivision and statutory scheme. When enacting the Street Terrorism
Enforcement and Prevention Act, our Legislature found “that the State of
California is in a state of crisis which has been caused by violent street
gangs whose members threaten, terrorize, and commit a multitude of crimes
against the peaceful citizens of their neighborhoods.†(§ 186.21.)
As a result, the Legislature enacted the Street Terrorism Enforcement
and Prevention Act with the intent of “seek[ing] the eradication of criminal
activity by street gangs by focusing upon patterns of criminal gang activity
and upon the organized nature of street gangs, which together, are the chief
source of terror created by street gangs.â€
(§ 186.21.)
There
is nothing in the Legislature’s declared intent explaining how a conviction for
active participation (§ 186.22, subd. (a)) differs from a conviction of the
underlying felony with a gang enhancement (§ 186.22, subd. (b)). For example, it is not clear if the active
participation offense was meant to result in harsher sentences and therefore
work as an exception to section 654; however, if the goal were harsher sentences,
then it would seem easier to simply raise the prison term by providing for an
associated gang enhancement, i.e., simply enhancing the sentence of any crime
committed by any gang member.
In
sum, it appears the application of section 654 to the active participation
offense will render the provision superfluous because a defendant’s sentence
for the offense will almost always be stayed pursuant to section 654 due to the
underlying felony always comprising the same act as the active participation
act. As cited ante, we are aware of the rule that we should not interpret a
provision to be surplusage; however, we are not aware of any rule that allows a
statute to be exempted from the law set forth in section 654 simply because
application of section 654 will render the provision surplusage. In other words, the fact the application of
section 654 will render this statute superfluous is not a legal reason for
exempting the provision from law set forth in section 654.
A
somewhat related, but alternate, theory we have considered is the possibility
that section 186.22, subdivision (a), operates as a specific statute, and
therefore trumps section 654, which is a general statute; however, that
reasoning also fails. There is a
“well-established rule . . . that the Legislature may create an express exception
to section 654’s general rule against double punishment by stating a specific
legislative intent to impose additional punishment. [Citations.]â€
(People v. Ramirez (1995) 33
Cal.App.4th 559, 572-573.) “‘A statute
which provides that a defendant shall receive a sentence enhancement in
addition to any other authorized punishment constitutes an express exception to
section 654.’†(People v. Palacios (2007) 41 Cal.4th 720, 730.)
We
can find no language in the declared legislative intent (§ 186.21), or the
provision itself, creating an exemption to the application for section
654. For example, there is no express
reference to section 654. (§§ 186.21,
186.22.) Further there is not an implied
reference to section 654, such as “notwithstanding any other law†or similar
language to the same effect. (See
provision of law’†created an exception to the application of section
654].) Since there is nothing in the
statute or declared intent specifically creating an exception to section 654,
we conclude the active participation provision was not meant to be interpreted
as a specific statute that trumps the general rule set forth in section 654.
Since
it has been held the active participation offense centers upon felonious
conduct, rather than lawful association, it would appear the underlying felony
element of the active participation offense will always result in the sentence
for active participation being stayed pursuant to section 654, because the same
act will inevitability be at issue in the straight felony charge and the active
participation charge. As a result, it
seems the active participation provision is superfluous. Further, there does not appear to be any legal
exemption removing the active participation sentence from the ambit of section
654. As a result, we conclude 654 does
act as a bar to the imposition of defendant’s sentence for active participation
(§ 186.22, subd. (a)). The trial court
incorrectly ordered that defendant’s sentence for the offense should be served
consecutively, when the sentence should have been stayed. Accordingly, we will direct that defendant’s
active participation sentence be stayed.
C. ROMERO
MOTION
Defendant
contends the sentencing court abused its discretion in denying his motion to
strike one of his two prior strike offenses because the court failed to make a
determination, based upon facts with evidentiary value, regarding whether
defendant’s prior convictions constituted a continuous course of conduct such
that they should be treated as one, rather than two, prior strikes. We hold the court acted within its discretion
in declining defendant’s invitation to strike one of his prior strike
convictions.
On
April 1, 2010, after defendant’s conviction, he filed a Romero motion requesting the court strike at least one of his two
prior strike convictions. Defendant
noted that his prior two strikes were based on a single course of conduct. Defendant cited People v. Benson (1998) 18 Cal.4th 24, for the proposition that
“there are some circumstances in which two prior felony convictions are so
closely connected—for example, when multiple convictions arise out of a single
act by the defendant as distinguished from multiple acts committed in an
indivisible course of conduct—that a trial court would abuse its discretion
under section 1385 if it failed to strike one of the priors.†(Id.
at p. 36, fn. 8.) Moreover, defendant
cited People v. Burgos (2004) 117
Cal.App.4th 1209, for the proposition “that the failure to strike one of . . .
two prior convictions that arose from a single act constitutes an abuse of
discretion.†(Id. at p. 1214, fn. omitted.)
Defendant concluded, “[h]ere, [defendant’s] two prior convictions were,
in the language of Benson, ‘so
closely connected,’ having arisen from the same single act, that failure to
strike one of them must be deemed an abuse of discretion.†(Italics added.) Although the People filed opposition to
defendant’s motion, they did not address the issue of whether defendant’s prior
convictions constituted a single course of conduct.
The
probation officer’s report filed on May 7, 2010, provided “a brief synopsis of
the circumstances†of defendant’s prior convictions: “On June 12, 2004, officers responded to a
‘man with a gun’ call in the area of 10th Street and Brockton Avenue, in the
City and County of Riverside. A witness
called 911 to report three Hispanic males, later identified as [defendant, Michael
and Moises] were in a lowered car pointing a handgun at people. Officers in the area located a vehicle
matching the description at 14th Street and Brockton Avenue. As they were conducting a felony stop,
dispatch broadcasted a robbery had just occurred in the area of 11th Street and
Locust Avenue. [¶] While officers detained the defendant[;]
another officer contacted the victim[.]
He was riding his bicycle on University Avenue, when the vehicle and
suspects drove through the parking lot, ‘mad dogging’ the victim. At that time, [Moises] asked if the victim
was from ‘1200 Blocc’ (an active Black street gang that claims Eastside
Riverside). The victim told them he was
not in a gang and the suspects challenged him to fight. The victim was struck several times, at one
point having an advantage on [Moises].
The defendant and [Michael] then exited the vehicle and surrounded the
victim. [Michael] told the victim, he
was going to ‘dump on him’ (meaning he was going to be shot). The victim was able to run away as his
bicycle was taken by one of the suspects.â€
At
the sentencing hearing on May 7, 2010, the court noted it had read defendant’s
motion and the People’s opposition It
then engaged in the following colloquy with the People:
“[Court]: [W]e also discussed in chambers . . . his
prior convictions that constitute the strikes; and if I’m remembering
correctly, the defendant, along with some others, robbed the victim of his
bicycle, and then the victim got away and went to a place of seeming safety and
to discuss the matter with his friend and his friend’s mother.
“[Prosecutor]: Yes, Your Honor.
“[Court]: “And the defendant and the others came after
him and made threats to him at that time.
“[Prosecutor]: Again, yes.
[J]ust to clarify, Your Honor, it wasn’t just a robbing of the bicycle,
they also beat him at that point.
“[Court]: Okay.
But then there was the distance—they separated?
“[Prosecutor]: That’s correct.
“[Court]: And then the defendant returned and made
threats.
“[Prosecutor]: Correct.
“[Court]: Okay.
All right. Now as to the Romero
motion, . . . it would appear to me that under those circumstances, that . . .
the robbery and the threats are not one continuous course of conduct, but
rather there’s an intermission and a distance that don’t take place at the same
place or at the same time, albeit, the same victim and the same defendant.â€
Defense
counsel then argued: “I would say that
it is indivisible in the following sense:
That you have the same perpetrators, the same victim close in time,
close in space and in terms of distance.
It’s not like they came back the next day. It was during the heat of battle of young and
foolish actors who essentially had a continuing course of conduct, and is
indivisible in that sense. It’s not like
they came back the next day, or the next week, or had different victims.†The court then found: “[a]s to the Romero motion . . . I do find
that . . . the prior offenses occurred at different times and in different
places, and for that reason, it does not appear that they are from one
continuous act.†Moreover, the court
concluded that as to “whether it’s in the interest of justice to exercise
discretion to strike it, . . . I can’t help but be swayed by the fact that he
goes to prison and keeps going, gets paroled and keeps going back, because
apparently he keeps violating his parole, continues in the gang
affiliation. It does not appear that he
is the kind of person that does not fall within the parameters of the
three-strikes laws.†The court then
denied defendant’s motion.
“[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.)
Under this standard, defendant bears the burden of establishing an abuse
of discretion. In the absence of such a
showing, the trial court is presumed to have acted correctly. The appellate court may not substitute its
judgment for that of the trial court when determining whether the trial court’s
decision to strike the prior was proper.
(Id. at pp. 376-377.) “‘[I]n ruling whether to strike or vacate a
prior serious and/or violent felony conviction allegation or finding under the
Three Strikes law, on its own motion, “in furtherance of justice†pursuant to .
. . section 1385[, subdivision] (a), or in reviewing such a ruling, 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.’
[Citation.]†(
trial court balanced the relevant facts and reached an impartial decision in
conformity with the spirit of the law, we shall affirm the trial court’s
ruling, even if we might have ruled differently in the first instance’
[citation].†(Id. at p. 378.)
Where
a prior court stayed imposition of sentence on one or more prior strike
offenses pursuant to section 654, a subsequent court should evaluate that fact
when determining whether to strike the prior strike conviction pursuant to
(See People v. Benson,
to strike a prior conviction upon which sentence was stayed pursuant to section
654, when multiple convictions arose from a single act. (See Ibid;
People v. Burgos,
interpreted to permit—but not necessarily require—a qualifying prior conviction
to be treated as a strike even if the sentence on the conviction has been
stayed pursuant to the provisions of section 654.†(Benson,
at p. 36.) Any contention that a prior
strike conviction upon which sentence has been stayed must be stricken in a later proceeding is “untenable.†(Ibid.)
Defendant
maintains that the Prosecutor’s comments to the court were entitled to no
evidentiary value whatsoever. Moreover,
defendant contends the facts in the probation officer’s report are insufficient
for the court to have made a factual finding that defendant’s prior convictions
involved divisible behavior. Thus,
defendant argues the court’s finding his prior conviction behavior involved
divisible behavior was not supported by substantial evidence and, therefore, the
court’s denial of his Romero motion, based
in part on this determination, was an abuse of discretion. Defendant requests that this court remand the
matter for resentencing, at which time the parties may adduce admissible
evidence concerning the circumstances involved in defendant’s commission of the
prior strike conduct. We hold sufficient
admissible evidence was adduced below to support the court’s ruling. Moreover, the court acted within its
discretion in denying defendant’s Romero
motion.
First,
as the People note, by “making his Romero motion, defendant undertook
the burden to show that a strike should be stricken. Thus, to the extent defendant wanted to show
that his two strikes arose from the same act, he had the burden to provide evidence
of that fact. Thus, gaps or ambiguities
about the facts of his two strikes would normally cut against defendant.†(People
v. Scott (2009) 179 Cal.App.4th 920, 925, fn. 2.) Therefore, defendant’s failure to adduce
evidence below that his strikes arose from the same act forfeits this
contention on appeal. (
1107, 1113 [forfeiture doctrine applies to failure to object to factual
findings made at sentencing].)
name="_ftnref5" title="">[5]
Second,
it is clear from the record defendant had no dispute with the prosecutor’s
recount of the facts regarding defendant’s earlier convictions; he merely
disagreed with the prosecution’s interpretation of those facts. From the probation officer’s report, which
defendant concedes has evidentiary value, it is clear that two separate
incidents were at issue regarding defendant’s prior convictions. The police were called out initially when
someone reported persons, including defendant, driving around pointing a gun;
the police were called again later with a report of a robbery. Thus, the probation officer’s report alone
supported a determination that at least two separate offenses had
occurred. Additionally, from the court’s
recitation of the facts immediately upon going on the record, it is clear that
the court and counsel had an extensive, off the record discussion of the facts
concerning the prior strike conduct.
Thus, the court did not render a factual determination based upon the
prosecutor’s statements alone, but made its findings after reading the
probation officer’s report and hearing argument from both counsel regarding the
matter.
Third,
a review of the abstract of judgment from the prior convictions reveals that
the court that sentenced defendant on those offenses did not stay any of the
counts pursuant to section 654. Thus,
the very court which had the most thorough understanding of the facts of the
prior strike convictions had made a determination that they did not involve a
single course of conduct. (
reference to section 654 during sentencing, the fact the court did not stay the
sentence on any count is deemed to reflect an implied finding that each count
constituted a separate offense].)
Therefore, the court had before it substantial, admissible evidence upon
which to render its finding that defendant’s prior strike convictions did not
involve one continuous act.
Finally,
the court properly exercised its discretion in denying defendant’s
convictions; four with true findings on attached gang enhancements. Defendant had incurred one prior misdemeanor
conviction, likewise with a true finding on an attached gang enhancement. Defendant had an established history of
serious, violent offenses. After being
paroled, defendant had twice been returned to custody for violations of his
parole conditions. Defendant was on
parole when he committed the instant offenses; he had been released from prison
less than five months earlier. The trial
court balanced the relevant factors and came to an impartial decision. Defendant cannot be said to be outside the
Three Strikes scheme.
Defendant’s
sentence for count 4 is modified to reflect that the sentence is stayed,
pursuant to section 654. The trial court
is directed to prepare an amended abstract of judgment and to forward a
certified copy to the Department of
Corrections and Rehabilitation. (§§
1213, 1216.) Defendant’s conviction on
count 6 is reversed. In all other
respects, the judgment is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
/s/ MILLER
J.
We concur:
/s/ McKINSTER
Acting P. J.
/s/ CODRINGTON
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (Romero).
