Filed 6/16/17 P. v. Bazan CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM BAZAN,

Defendant and Appellant.


G052730

(Super. Ct. No. 14WF3818)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed and remanded with directions.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant William Bazan appeals from the judgment entered after a jury found him guilty of unlawfully taking a vehicle. The jury also found he had suffered three prior convictions and served one prior prison term within the meaning of Penal Code section 667.5. (All further statutory references are to the Penal Code unless otherwise specified.) Bazan argues the trial court erred by denying his request to strike his prior strike convictions under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We affirm the judgment of conviction, but remand with directions that the trial court hold a hearing to reconsider and clarify the record regarding Bazan’s request to strike his prior strike convictions for purposes of sentencing.

FACTS
On October 6, 2014, a Hertz employee brought a Nissan Versa owned by Hertz into a Jiffy Lube in Huntington Beach for servicing. The car was serviced and parked outside the shop, ready to be picked up by Hertz personnel. Service technician Devon Zschernig placed the keys to the car on the counter because there was no room on the hook in the shop.
That same morning, Bazan rode his bicycle to the Jiffy Lube; he had previously worked with Zschernig. Zschernig gave Bazan permission to use the restroom at the shop. After Bazan came out of the bathroom, he said “thanks” and rode away on his bicycle.
Later that day, when a Hertz employee arrived to retrieve the car, Zschernig discovered the keys were missing and assumed he had misplaced them. When Zschernig arrived at work the following day, he saw the car was gone from the parking lot where it had been parked. After confirming that no Hertz employee had picked the car up, Zschernig contacted the police and reported that the car had been stolen. Zschernig provided Officer Douglas Martin of the Huntington Police Department with a description of the car. He also told Martin about Bazan’s visit the day before when the car keys were later discovered to be missing.
Detective Angela Bennett was provided information about the stolen car while she was on duty. In an unmarked police car, Bennett drove to Bazan’s neighborhood where she happened to pull up behind the stolen car itself. She followed the car and alerted dispatch.
Detective Toby Archer, who was also in an unmarked vehicle, pulled up next to the car Bennett had followed, looked inside, and saw Bazan driving it; he recognized Bazan from a prior contact. Archer saw Bazan pull into a strip mall, park, and walk into a beauty supply store near a pizza parlor. Archer saw Bazan walk back toward the car, look around him for 30 seconds as if “to see if someone was following him,” and then walk to the driver’s side of the car and get into the car. Archer used his car to block the stolen car from moving. Police officers in a marked unit arrived, ordered Bazan out of the vehicle, and took him into custody. The keys found in the car were on a Hertz keychain.
After being read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Bazan told officers that he had walked to the pizza parlor where a friend, who he would not identify or describe, gave him the keys to the car moments before the police officers detained him. He denied going to the beauty supply store that day, going to Jiffy Lube the day before, or knowing the car was stolen.

PROCEDURAL HISTORY
Bazan was charged in an information with one count of unlawfully taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). The information alleged, pursuant to sections 667, subdivisions (d) and (e)(2)(A) and 1170.12, subdivisions (b) and (c)(2)(A), that Bazan previously suffered “two and more serious and violent felony convictions and adjudications.” It further alleged in August 2004, he was previously convicted of violating section 186.22, subdivision (a) (active participation in a criminal street gang), former section 12021, subdivision (a)(1) (possession of a firearm by a felon), and former section 12316, subdivision (b)(1) (possession of ammunition by a felon), and that the two possession-related prior convictions were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The information also alleged that in August 2014, Bazan suffered a prior conviction for violating section 245, subdivision (a)(4), for which he served a prior prison term within the meaning of section 667.5, subdivision (b).
The jury found him guilty of the charged offense and found all of the prior conviction allegations and the prior prison term allegation true. Before the sentencing hearing, Bazan filed a sentencing brief and request under section 1385 to dismiss his three prior strike convictions pursuant to Romero, supra, 13 Cal.4th 497. The trial court denied Bazan’s request to strike his prior strike convictions, and sentenced Bazan to a total prison term of five years by imposing the middle term of two years for his conviction of the charged offense, doubling that two-year term because of the prior strike convictions, and adding a one-year term because of his prior prison term under section 667.5, subdivision (b). Bazan appealed.

DISCUSSION
Under section 1385, a trial court has the discretion to strike a prior conviction for purposes of sentencing. (Romero, supra, 13 Cal.4th 497.) In deciding whether to exercise that discretion, the court must consider the nature and circumstances of the present and previous felony convictions, as well as the defendant’s background, character, and prospects, to determine whether the defendant is outside the spirit of the “Three Strikes” law. (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Bazan argues the trial court abused its discretion by refusing to strike his strikes based on express findings that were unsupported by the record. At the sentencing hearing, the trial court stated in relevant part: “At this time the court is not going to strike the strikes. Although they are 11 years old at this point they are—first of all, there are three of them. The court would find that even though they are a while back, they are still really relative to what has been going on in his life. [¶] He hasn’t had a nice time period of any chunk of time where he hasn’t been still committing offenses. Although his mom is suggesting, and I think she genuinely believes that he has not been in trouble lately, but if I just go backwards from today’s event, he has an 11377(a) in 2013. He has a 245 in 2013. He has a gun possession in 2012. He has a 459 in 2012. He has another gun possession in 2003. [¶] So there is a little bit of nine years in there, but he spent a fair amount of time in custody. From 2012 to now he has been pretty active in criminal activity. When you think most people don’t pick up any cases, much less these, he has had a few. I am not inclined to strike the strikes.”
Bazan argues, among other things, the trial court erroneously found that Bazan had suffered a second conviction for possession of a firearm in 2012, and relied on that fact in denying Bazan’s request to dismiss his strikes. As acknowledged by the Attorney General in the respondent’s brief, our record does not show Bazan suffered a second possession of a firearm conviction in 2012. Unfortunately, no party at the hearing corrected the trial court’s misunderstanding of the record on that point.
Bazan also argues the trial court incorrectly found he had suffered three prior strikes. Any error regarding which of Bazan’s prior convictions qualified as serious or violent felonies and, thus, strikes under the Three Strikes law, can be explained by the inconsistent positions taken by the parties in the trial court. Within the confines of his own sentencing brief and request that the court dismiss his prior strikes pursuant to section 1385 and Romero, supra, 13 Cal.4th 497, Bazan inconsistently (1) requested, initially, that the court “dismiss the prior felony conviction alleged pursuant to Penal Code section 667, subdivisions (d) and (e)(2) and Penal Code section 1170.12, subdivisions (b) and (c)(2)”; (2) later stated “[i]t was found true that Mr. Bazan suffered three prior strike convictions”; and then, finally, (3) asserted “Defendant is alleged to have two prior serious or violent felony convictions.” (Italics added.)
In his opening brief on appeal, Bazan stated he “pled guilty to committing two serious felony ‘strikes’ on October 15, 2003, consisting of unlawful possession of a firearm by a felon . . . and unlawful possession of ammunition by a prohibited person [citation], with gang allegations.” In his reply brief, Bazan is critical of the trial court’s statement that Bazan had suffered three prior strikes, stating, “not only was this quantitatively false, but in legal effect appellant had committed only one—the unlawful possession of a loaded firearm by a felon. [¶] Rather than concede the truth of this, respondent curiously chooses to misstate the record. It argues appellant in fact suffered three strikes and the jury itself so found. [Citation.] The record is to the contrary. The jury found appellant had two felony convictions that qualified as prior strikes. [Citation.] The other two felonies were not strikes. [Citation.]”
Although our record shows the jury made findings regarding whether Bazan suffered prior convictions, the jury did not make separate findings on whether any or all of them constituted serious or violent felony strikes. Neither party, in the trial court or on appeal, cited legal authority or otherwise analyzed which of these convictions, based on the record before us, qualifies as a strike. (See e.g., People v. Briceno (2004) 34 Cal.4th 451, 458, fn. 6 [“Section 186.22(a) is a substantive offense that is punishable as either a misdemeanor or a felony”].)
Citing People v. Vargas (2014) 59 Cal.4th 635 (Vargas), in his opening brief, Bazan argues that, in any event, because his prior convictions for possession of a firearm by a felon and possession of ammunition by a felon with gang enhancements “arose from a single act—possession of a loaded firearm—the trial court was required by law to treat them as one strike.” In Vargas, the California Supreme Court held that because two felony convictions were “not only tried in the same proceeding and committed during the same course of criminal conduct, they were based on the same act, committed at the same time, against the same victim . . . neither the electorate [citation] nor the Legislature [citation] could have intended that both such prior convictions would qualify as separate strikes.” (Id. at pp. 638-639.) The Supreme Court further held “the trial court should have dismissed one of them and sentenced defendant as if she had only one, not two, qualifying strike convictions.” (Id. at p. 639.)
Our record does not show that any party cited Vargas, supra, 59 Cal.4th 635 to the trial court, much less provided any relevant factual or legal analysis regarding the circumstances of the prior convictions showing whether Bazan’s prior convictions should be considered a single strike for purposes of sentencing because they arose out of the same act within the meaning of that opinion.
Although the trial court stated on the record that Bazan’s request to have his prior strikes dismissed was denied, and that it counted three strikes, the court imposed the same punishment that would have been imposed if two of the three strikes had been dismissed, by doubling the middle term for the charged offense.
We commend the trial court for explaining its sentencing decision, and acknowledge the sentence ultimately imposed by the trial court might not constitute an abuse of discretion. As discussed ante, however, given the court’s mistaken understanding of Bazan’s recent criminal record, and the dearth of analysis by the parties regarding Bazan’s prior strike convictions, and their failure to cite Vargas, supra, 59 Cal.4th 635, in the trial court, we remand the matter to the trial court with directions that the court hold a hearing to reconsider Bazan’s request to strike strikes and thereafter


clarify the record on this point. We express no opinion whether the court should grant or deny Bazan’s request.

DISPOSITION
The judgment of conviction is affirmed. We remand with directions that the trial court hold a hearing to reconsider Bazan’s request to strike prior convictions for the purpose of sentencing and impose sentence. We further direct the court to prepare an amended abstract of judgment and a forward a certified copy to the Department of Corrections and Rehabilitation.



FYBEL, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.