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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E050850
v. (Super.Ct.No. RIF143965)
JAIRO FIDEL GUZMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside 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.
1 A jury convicted defendant Jairo Fidel Guzman of vehicle burglary (count 1—Pen.
Code, § 459),1 receiving 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 Romero2 motion to strike his
prior strike 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 Romero
motion because it failed to 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
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2 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.
FACTUAL AND PROCEDURAL HISTORY
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
3 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 “Frost”; 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
4 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.”
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
5 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.
DISCUSSION
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 People
v. Rodriguez, S187680.” The California Supreme Court rendered its 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
6 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
7 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.]” (People v. Houston (2012) 54 Cal.4th
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, Rodriguez compels the reversal of defendant’s
conviction for active gang participation in count 2.
8 B. SECTION 654
Defendant contends his sentence for active participation in a criminal street gang
should be stayed 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 intent and
objective of the actor. If all of the offenses were incident to one 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].)
9 The “course of conduct” in the instant case is defendant’s burglary of Jolanda’s
vehicle and/or defendant’s possession of a firearm.3 Defendant’s conviction for count 1
accounted 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
3 The court neither instructed the jury nor did the jury indicate upon which underlying felony or felonies it was relying in rendering a guilty verdict on count 6.
10 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.]”
(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.”
11 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.]” (Castenada, supra, 23 Cal.4th at pp. 751-752.) Accordingly, the
underlying felony is an 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,” (§ 186.22, subd.
12 (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.4
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
4 We have considered the possibility the active participation offense could be used if a prosecutor did not want to charge the underlying felony; however, that reasoning also fails, because ultimately the prosecutor will have to prove a felony was committed. For example, in a case involving an assault, the prosecutor would need to show the assault amounted to a felony, rather than simple assault. Therefore, the prosecutor still has the burden of proving a felony occurred, meaning it would be logical for the prosecutor to simply charge the felony assault with a gang enhancement (rather than charging active participation), saving the prosecutor from proving the additional element of “active participation.” The active participation offense could also be an attempt to punish criminal activity by a gang member not “committed for the benefit of, at the direction of, or in association with any criminal street gang” as required by section 186.22, subdivision (b). However, without an express exemption from the dictates of section 654, we cannot discern how a defendant committing such an offense could be deemed to have a separate intent than that held when committing the underlying felony offense; thus, section 654 would appear to bar imposition of sentence on the former whenever a defendant is convicted of both.
13 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.” (§ 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.
14 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.]” (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 People v. Palacios, supra, 41 Cal.4th at p. 730 [the
phrase “‘notwithstanding any other 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
15 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
16 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
17 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.”
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.
18 “[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.”
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
19 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.]” (Id. at p. 377.) “‘Where the record demonstrates
that the 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 Romero. (See
People v. Benson, supra, 18 Cal.4th at p. 36, fn. 8.) A court may abuse its discretion by
declining 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,
supra, 117 Cal.App.4th at p. 1216.) However, the “Three Strikes” law “must be
20 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.)
21 Therefore, defendant’s failure to adduce evidence below that his strikes arose from the
same act forfeits this contention on appeal. (People v. Stowell (2003) 31 Cal.4th 1107,
1113 [forfeiture doctrine applies to failure to object to factual findings made at
sentencing].)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
5 In the event we find defendant forfeited the issue, as we do, defendant also argues his counsel below provided ineffective assistance of counsel by failing to object to the prosecutor’s statement of facts and the trial court’s reliance upon it. However, “[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) Here, the record fails to show why defense counsel failed to provide evidence that defendant’s prior convictions were the result of a single course of conduct or why he failed to object to the prosecutor’s recount of the facts. Nevertheless, there is a probable answer to be gleaned from the record: Defense counsel declined to so because, in fact, defendant’s prior conviction offenses were definitively divisible behavior. Thus, any attempt to contradict the prosecutor’s statements would be both frivolous and disingenuous. Therefore, defendant’s claim of ineffective assistance of counsel fails.
22 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. (People v. Tarris, supra, 180 Cal.App.4th at p. 626
[even in the absence of any 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 Romero
motion. Defendant had incurred five prior felony 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
23 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.
DISPOSITON
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.