Filed 12/23/24 P. v. Garcia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E081788
v. (Super.Ct.No. BAF2101238)
TIZOC GARCIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
Judge. Affirmed in part, reversed in part, remanded with directions.
Joseph Doyle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Joshua
Trinh, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Tizoc Garcia shot a man with a shotgun. A jury
convicted him of assault with a firearm, among other charges. The trial court found true
allegations that he had two prior convictions that were serious felonies and strikes—one 1 in 2002 for participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), the
other in 2009 for aggravated assault (§ 245, subd. (a))—and sentenced him to 25 years to
life in prison, along with several stayed terms.
The parties disagree as to whether there is sufficient evidence to support the trial
court’s findings that Garcia’s 2009 conviction was a serious felony and a strike. We find
the evidence to be sufficient, and therefore affirm those findings.
The parties agree, however, that the trial court erred in three other ways.
Insufficient evidence supports the trial court’s finding that his 2002 conviction was a
serious felony and a strike. The minutes of Garcia’s sentencing and the abstract of
judgment have a clerical error, mixing up the sentences imposed for two counts. Also,
the court erred in pronouncing judgment on one of the counts, calculating a determinate
term based on an upper term of four years, when the upper term for the offense is three
years. We agree with the parties on these issues. Reversal in part and remand for further
proceedings is therefore necessary.
FACTS
On September 28, 2021, Garcia accused his victim—another boyfriend of his
girlfriend—of stealing his fentanyl, and they got into a fistfight. The next day, Garcia
1 Undesignated statutory references are to the Penal Code.
2 remained angry and convinced someone had stolen his drugs. He first brandished a
shotgun at a third man and then shot at the victim, hitting him in the leg.
In 2023, Garcia was tried and convicted of assault with a firearm (§ 245, subd.
(a)(2), count 1), being a felon in possession of a firearm (§ 29800, subd. (a)(1), count 2),
and being a felon in possession of ammunition (§ 30305, subd. (a), count 3). The jury
also found true as to count 1 that Garcia personally inflicted bodily injury (§ 12022.7,
subd. (a)) and personally used a firearm (§ 12022.5, subd. (a)) and as to count 2 that he
was personally armed with a firearm (§ 12022, subd. (a)(1)). The trial court found that
Garcia had two prior convictions that were serious felonies (§ 667, subd. (a)) and strikes
(§§ 667, subds. (b)-(i), 1170.12).
The court sentenced Garcia to 25 years to life in prison. The sentence includes a
term of 25 years to life on count 1, and stayed terms of 25 years to life on count 2 and 8
years on count 3. The court struck punishment for the enhancements of counts 1 and 2.
DISCUSSION
A. Garcia’s 2009 Conviction
The parties disagree whether substantial evidence supports the trial court’s finding
that Garcia’s 2009 conviction was a serious felony and thus a strike. We conclude it
does.
Before 2012, former section 245, subdivision (a)(1), “punishe[d] assault
committed either by means ‘likely to produce great bodily injury’ (GBI) or by use of ‘a
deadly weapon . . . other than a firearm.’” (People v. Delgado (2008) 43 Cal.4th 1059,
3 1063 (Delgado); see People v. Frahs (2018) 27 Cal.App.5th 784, 795 [discussing 2011
amendments to § 245].) By statute, “assault with a deadly weapon” is a serious felony
and a strike. (§ 1192.7, subd. (c)(31); see § 667, subds. (a)(4), (d)(1).) Serious felonies
also include all those “in which the defendant personally inflicts great bodily injury on
any person.” (§ 1192.7, subd. (c)(8), italics added.) “[A]ssault merely by means likely to
produce GBI, without the additional element of personal infliction, is not included in the
list of serious felonies.” (Delgado, at p. 1065.) Thus, a pre-2012 conviction under the
deadly weapon prong of former section 245, subdivision (a)(1), is a serious felony and a
strike, but a conviction under the GBI prong without the additional element of personal
infliction is not.
“Where, as here, the mere fact that a prior conviction occurred under a specified
statute does not prove the serious felony allegation, otherwise admissible evidence from
the entire record of the conviction may be examined to resolve the issue.” (Delgado,
supra, 43 Cal.4th at p. 1065.) “A common means of proving the fact and nature of a
prior conviction is to introduce certified documents from the record of the prior court
proceeding and commitment to prison, including the abstract of judgment describing the
prior offense.” (Id. at p. 1066.) “‘[The] trier of fact is entitled to draw reasonable
inferences from certified records offered to prove a defendant suffered a prior
conviction . . . .’” (Ibid.) Such records are presumed authentic, accurate, and sufficient,
in the absence of contrary evidence. (Ibid.; see Evid. Code, § 664 [official duty
presumption].) “However, if the prior conviction was for an offense that can be
4 committed in multiple ways, and the record of the conviction does not disclose how the
offense was committed, a court must presume the conviction was for the least serious
form of the offense.” (Delgado, at p. 1066.)
“The prosecution has the burden of proving beyond a reasonable doubt each
element of a prior conviction used to enhance a defendant’s sentence.” (People v.
Rodriguez (2004) 122 Cal.App.4th 121, 128.) We review the record in the light most
favorable to the judgment to determine whether it is supported by substantial evidence.
(Delgado, supra, 43 Cal.4th at p. 1067.)
In Delgado, our Supreme Court held that a notation in an abstract of judgment
describing a conviction in a manner that “tracks one, but only one, of the two specific,
discrete, disjunctive, and easily encapsulated forms of aggravated assault set forth in
section 245(a)(1)” is a presumptively reliable official record. (Delgado, supra, 43
Cal.4th at p. 1069.) Thus, without rebuttal evidence, such an abstract of judgment is
sufficient on its own to support a finding “beyond reasonable doubt that a prior serious
felony conviction had occurred.” (Id. at pp. 1069-1070.)
The abstract of judgment description that the Delgado court found sufficient
identified the statute under which the conviction occurred as “‘PC’ ‘245(A)(1),’ then
separately describe[d] the offense as ‘Asslt w DWpn.’” (Delgado, supra, 43 Cal.4th at p.
1069.) The abstract of judgment of Garcia’s 2009 conviction is substantially similar. It
identifies the statute under which the conviction occurred as “PC” “245(a)(1),” then
separately describes the offense as “Assault W/Deadly.”
5 Garcia argues the absence of the word “weapon,” “even in abbreviated form,”
means Delgado is distinguishable from this case. In his view, “it is impossible to say
whether it was just the word ‘weapon’ that was cut off or whether it was ‘weapon or with
force likely to cause great bodily injury’ (or some similar notation).” This argument
applies equally well, however, to the description at issue in Delgado, which could be
short for “Asslt w DWpn or GBI” or some similar notation. And Delgado expressly
rejected this line of reasoning: “Where, as here, the abstract first identified the statute by
section number, then separately and clearly described only one of the two means by
which the statute can be violated, the court was not required to assume the descriptive
language was mere surplusage. Absent any rebuttal evidence, the court could reasonably
infer that the words were there for a reason, that they meant what they said, and that they
accurately set forth the form of violation for which the defendant was convicted.”
(Delgado, supra, 43 Cal.4th at p. 1071.)
Moreover, the trial court that prepared Garcia’s 2009 abstract of judgment had the
benefit of our Supreme Court’s admonition in Delgado that “[w]hen a defendant is
convicted under a statute, such as section 245(a)(1), that covers in the alternative two
slightly different offenses, only one of which is defined as a serious felony . . . it is
necessary that the abstract of judgment specify, with scrupulous accuracy, the crime of
which the defendant was actually charged and convicted.” (Delgado, supra, 43 Cal.4th at
p. 1072.) Thus, in addition to the abstract of judgment being a “statutorily sanctioned,
officially prepared clerical record of the conviction and sentence” made at the time of the
6 trial (Id. at p. 1070), the trial court had been recently and emphatically instructed by our
Supreme Court that the abstract of judgment must reflect the precise distinction at issue.
In the absence of affirmative evidence to the contrary, we presume the court followed
that instruction.
In addition, in Delgado, our Supreme Court stated: “[A]n accusatory pleading may
specify that a charged offense involves facts making the offense a serious felony. The
serious felony issue will then be tried unless the defendant separately admits it as part of
a guilty plea. (§ 969f.) By this means as well, the serious felony nature of the offense
will become an explicit part of the record of conviction, leaving no room for confusion if
and when the issue becomes relevant to the sentence for a subsequent felony.” (Delgado,
supra, 43 Cal.4th at p. 1072; see § 969f, subd. (a) [“If the defendant pleads not guilty to
the offense charged in any count which alleges that the defendant committed a serious
felony, the question whether or not the defendant committed a serious felony as alleged
shall be tried by the court or jury which tries the issue upon the plea of not guilty.”)
The trial court and the prosecution here followed this procedure and, without
objection by the defense, the trial court took judicial notice that the information alleged
Garcia’s violation of section 245, subdivision (a)(1), was committed with a deadly
weapon, specifically, chains, making it a strike offense. Our opinion in Garcia’s direct
appeal from that conviction is in accord: “A jury found defendant guilty of assault with a
deadly weapon, to wit, chains.” (People v. Garcia (Mar. 1, 2011, E050587) [nonpub.
7 opn.]; see § 1172.6, subd. (d)(3) [“The court may also consider the procedural history of
the case recited in any prior appellate opinion”].)
Garcia presented no evidence or argument in support of a different conclusion
about his prior conviction. Thus, here as in Delgado, the prosecution “presented prima
facie evidence, in the form of a clear, presumptively reliable official record of
defendant’s prior conviction, that the conviction was for the serious felony of assault with
a deadly weapon. Defendant produced no rebuttal evidence. Utilizing the presumption
of official duty, and drawing reasonable inferences from the official record, the trial
court, as a rational trier of fact, could thus properly find beyond a reasonable doubt that a
prior serious felony conviction had occurred.” (Delgado, supra, 43 Cal.4th at p. 1070.)
Garcia argues that Delgado “conflicts with recent case law from both the United
States and California Supreme Courts about the limits of judicial factfinding.” He quotes
Descamps v. United States (2013) 570 U.S. 254, 268 (Descamps) for the proposition that
“the only facts the court can be sure the jury so found are those constituting elements of
the offense—as distinct from amplifying but legally extraneous circumstances.”
(Descamps, at pp. 269-270) And he cites Mathis v. United States (2016) 579 U.S. 500
(Mathis) and People v. Gallardo (2017) 4 Cal.5th 120 for similar points. (See Mathis, at
pp. 511-512 [“...only a jury, and not a judge, may find facts that increase a maximum
penalty, except for the simple fact of a prior conviction,” so a judge “can do no more,
consistent with the Sixth Amendment, than determine what crime, with what elements,
the defendant was convicted of”]; Gallardo, at p. 124 [“While a sentencing court is
8 permitted to identify those facts that were already necessarily found by a prior jury in
rendering a guilty verdict . . . the court may not rely on its own independent review of
record evidence to determine what conduct ‘realistically’ led to the defendant’s
conviction.”].)
We disagree that Delgado is incompatible with Descamps, Mathis, or Gallardo.
Delgado does not authorize the trial court to independently review the record evidence to
find facts beyond those constituting elements of the offense. Rather, it holds that, in the
absence of rebuttal evidence, an abstract of judgment that meets certain criteria is
sufficient evidence to support a determination of “what crime, with what elements, the
defendant was convicted of.” (Mathis, supra, 579 U.S. at pp. 511-512; see Delgado,
supra, 43 Cal.4th at p. 1071 [“Absent any rebuttal evidence, the court could reasonably
infer that the words were there for a reason, that they meant what they said, and that they
accurately set forth the form of violation for which the defendant was convicted”].) This
is precisely the kind of judicial fact finding approved by Descamps, Mathis, and
Gallardo, focused on determining what facts the jury must have found when it found the
defendant guilty.
Garcia relies on People v. Hudson (2018) 28 Cal.App.5th 196, 210 (Hudson), in
which the court of appeal found that the abstract of judgment alone did not show the
defendant was convicted under the deadly weapon prong of section 245, subdivision
(a)(1), despite its plain language. Hudson involved an abstract of judgment describing
the defendant’s conviction in similar terms to that abstract of judgment considered in
9 Delgado: “‘Assault w/ deadly weapon.’” (Hudson, at p. 209.) Nevertheless, in Hudson,
the court of appeal commented that “the abstract may reflect the court’s own
interpretation and factfinding of the available evidence.” (Id., at p. 210.)
The context of this comment, however, is important. Hudson involved a possible
conflict between the accusatory pleadings, which had been amended with handwritten
language, and the abstract of judgment. (Hudson, supra, 28 Cal.App.5th at pp. 202-203.)
Moreover, the defendant had pleaded guilty, and the record was “silent” as to the basis
for his plea. (Id. at p. 208.) Thus, although the abstract of judgment was unambiguous
on its face, there was “rebuttal evidence” (Delgado, supra, 43 Cal.4th at p. 1071) that
arguably could support a different conclusion about the nature of the defendant’s prior
conviction. The trial court in Hudson relied on the preliminary hearing transcript to
resolve the evidentiary conflict. (Hudson, at pp. 202-203 & fn. 3, 208-209.) In doing so,
the Hudson court of appeal concluded the trial court ran afoul of the rules regarding
judicial fact finding articulated in Descamps, Mathis, and Gallardo. (See Hudson at pp.
208-209 [citing Gallardo].) There was no analogous conflict in the evidence or
impermissible judicial fact finding in Delgado, nor is there any in the case before us.
B. Garcia’s 2002 Conviction
Garcia argues, and the People concede, there is insufficient evidence to support the
trial court’s determination that Garcia’s 2002 conviction was a strike. The parties also
agree the appropriate remedy is a remand so that the People may retry that strike
allegation. We agree on both points.
10 “[A]ny felony offense, which would also constitute a felony violation of Section
186.22,” is a serious felony and a strike. (§ 1192.7, subd. (c)(28); see §§ 667, subds.
(a)(4), (d)(1), 1170.12, subd. (b)(1).) In 2002, Garcia pleaded guilty to violating former
section 186.22, subdivision (a).
In 2012, however, our Supreme Court clarified the meaning of section 186.22,
subdivision (a), holding that a gang member acting alone cannot violate it; rather, an
active gang member must commit a felony offense with one or more fellow gang
members. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131-1132, 1138-1140 (plur.
opn. of Corrigan, J.) (Rodriguez); see also id. at pp. 1139-1140 (conc. opn. of Baxter, J.).)
Because judicial decisions are generally “‘given retroactive effect,’” Rodriguez “declared
not only what that section meant at that time, but what it had always meant,” including
when Garcia “suffered [his] prior conviction[].” (People v. Scott (2023) 91 Cal.App.5th
1176, 1183-1184, review granted Sept. 27, 2023, S280776.)
Thus, in 2023, when the prosecution sought to prove Garcia’s 2002 conviction
qualified as a strike, “the understanding of the elements of the offense had shifted.”
(People v. Strike (2020) 45 Cal.App.5th 143, 150 (Strike).) “Certain conduct that was
considered gang participation prior to Rodriguez no longer qualified. This change in the
interpretation of section 186.22(a) rendered a pre-Rodriguez conviction inconclusive on
its face as to whether it qualified as a strike.” (Ibid; accord People v. Farias (2023) 92
Cal.App.5th 619, 648-650; People v. Watts (2005) 131 Cal.App.4th 589, 596-597.) The
prosecution therefore “could not simply rely on the fact defendant had suffered a
11 conviction for violating section 186.22(a),” but had to also “prove defendant admitted all
of the elements of the offense as explained by Rodriguez, including that he committed a
felony offense with another member of his gang.” (Strike, at p. 150.) The parties agree,
as do we, that the prosecution did not satisfy that evidentiary burden, so the trial court’s
true finding on the prior conviction allegation for Garcia’s 2002 conviction must be 2 reversed.
Nevertheless, “reversal of a true finding on a prior conviction allegation does not
prevent retrial of that enhancement.” (Strike, supra, 45 Cal.App.5th at p. 154.) Rather,
“the appropriate remedy is to remand the case to the trial court for a new hearing on the
prior strike allegation ‘to permit the People to demonstrate to the trial court, based on the
record of the prior plea proceedings, that defendant’s guilty plea encompassed a relevant
admission about the nature of [his] crime.’” (Ibid.) “Upon remand, the prosecution may
be able to provide a reporter’s transcript of the [2002] plea proceedings or other
documentation not previously provided, which may shed light on whether defendant
admitted any additional facts as part of his guilty plea.” (Ibid.) In the alternative, the
People may choose not to retry that prior strike allegation. In any case, the trial court will
need to resentence Garcia.
2 This conclusion based on Rodriguez and Strike means we need not address Garcia’s arguments relating to the changes to section 186.22 enacted by Assembly Bill No. 333 (2021-2022 Reg. Sess.).
12 C. Conceded Clerical Error and Sentencing Error
The trial court sentenced Garcia to 25 years to life for count 2 and eight years for
count 3, staying both terms under section 654. The sentencing minute order and the
abstract of judgment, however, reversed this, showing the court imposed a stayed eight-
year term for count 2 and a stayed 25 years to life term for count 3. The parties agree, as
do we, that the court’s oral pronouncement of judgment controls. (See People v. Mitchell
(2001) 26 Cal.4th 181, 185-186.)
Also, the eight-year stayed term imposed for count 3 was calculated as the “upper
term” of “four years” for the offense of possessing ammunition as a felon in violation of
section 30305, subdivision (a), “doubled to eight years.” The upper term for violating
section 30305, subdivision (a), is three years, not four. (§§ 18, subd. (a); 1170, subd.
(h)(1); § 30305, subd. (a); see also People v. Butler (2022) 75 Cal.App.5th 216, 225.)
The parties agree, as do we, that Garcia’s failure to object to this error at sentencing does
not preclude him from seeking relief on appeal from the unauthorized sentence. (See
People v. Anderson (2020) 9 Cal.5th 946, 962.)
We are already vacating defendant’s sentence and remanding the matter for further
proceedings, including resentencing. We expect that the trial court will not repeat these
errors.
DISPOSITION
The trial court’s true findings on the serious felony prior and strike prior
allegations regarding Garcia’s 2002 conviction under section 186.22, subdivision (a), are
13 reversed and Garcia’s sentence is vacated. We remand the matter for retrial of those prior
conviction allegations, if the People so choose, and resentencing. In all other respects,
the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
RAMIREZ P. J.
CODRINGTON J.