The opinion
Filed 4/18/25 P. v. Escobar CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B330195
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA114280)
v.
PETE ESCOBAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Chet L. Taylor, Judge. Affirmed as
modified.
Micah Reyner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Pete Escobar appeals from a judgment of conviction for
attempted murder, assault with a deadly weapon, and two counts
of possession of a firearm by a felon. On appeal, Escobar
contends his trial attorney rendered ineffective assistance of
counsel by failing to object to inadmissible evidence. He also
contends the trial court committed two sentencing errors and the
abstract of judgment must be corrected. We conclude Escobar
failed to show his trial counsel’s performance was deficient. We
modify the judgment and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 1, 2020, around 10:00 p.m., Joseph Cigliano was
shot in the backyard of a residence in San Pedro. The police
found casings from a .9mm firearm at the scene. A neighbor’s
surveillance camera recorded the suspect running on the street
next to the residence after the shooting.
When interviewed at the hospital, Cigliano refused to
identify the shooter, indicating only that the shooter belonged to
the Rancho San Pedro gang. A police officer familiar with that
gang reviewed the surveillance video and identified Escobar as
the suspect.
On April 13, 2020, detectives with the Los Angeles Police
Department (LAPD) conducted a recorded video interview with
Escobar in connection with their investigation of the shooting.
They questioned Escobar about a .44 Magnum revolver police
found at his residence during a search. Escobar denied the gun
belonged to him and said he did not know where it came from.
2
The police showed Escobar a still from the neighbor’s
surveillance video from the night of the shooting. They told
Escobar that he had been identified as the person who shot
Cigliano. Escobar denied that he was the person in the photo and
said he had been home with his children. The detectives told
Escobar that they had surveillance footage of him with a gun
near the scene. They asked Escobar for his side of the story,
including “if [he was] trying to protect [him]self or something like
that . . . .” Escobar said he could not help detectives and that he
had “no story to tell.”
Escobar confirmed that he knew Cigliano. Cigliano had
dated Escobar’s ex-wife in 2015, while Escobar was incarcerated.
Escobar told police he got into an altercation with Cigliano at a
domestic violence class the year before. Escobar said Cigliano
and his ex-wife had neglected his five children while Escobar was
incarcerated. Escobar’s daughter told him Cigliano had hit her.
He told detectives that he “wanted to kill the guy back then, but
[he] didn’t[,]” and he no longer felt that way.
The People charged Escobar with willful, deliberate, and
premeditated attempted murder (Pen. Code, §§ 664, 187,
subd. (a); count 1)1; assault with a firearm (§ 245, subd. (a)(2);
count 2); and possession of a firearm by a felon (§ 29800,
subd. (a)(1); counts 3 & 4). The information alleged firearm
enhancements as to count 1 (§§ 12022.5, subd. (a), 12022.53,
subds. (b)–(d)) and count 2 (§ 12022.5, subds. (a), (d)).2 It further
1 All further undesignated statutory references are to the
Penal Code.
2 The People added the section 12022.5, subdivision (a)
firearm enhancement to count 1 by interlineation during trial.
3
alleged as to counts 1 and 2 that Escobar personally inflicted
great bodily injury on Cigliano (§ 12022.7, subd. (a)). The People
also alleged that Escobar had suffered a prior strike, had
numerous prior convictions of increasing seriousness, and had
served a prior prison term. (§§ 667, subd. (d), 1170.12, subd. (b),
1170, subd. (h); Cal. Rules of Court, rule 4.421(b)(2), (3).)
At trial, the prosecution called several witnesses, including
neighbors who had called 911 after the shooting and LAPD
officers who responded to the scene and conducted the
investigation. Neighbors testified to hearing gunshots, but there
were no eyewitnesses to the shooting. Cigliano also testified.
According to Cigliano, on the night of the shooting, Escobar
appeared to be hiding in the yard of the unit where Cigliano
lived. Escobar shot him in both legs, unprovoked, when Cigliano
stepped outside to go to the store. The prosecution also played a
video of Escobar’s April 13, 2020 interview with police.
Escobar testified that he shot Cigliano in self-defense. He
stated Cigliano had acted violently toward him in the past and, at
the time of the shooting, he believed Cigliano wanted to kill him.
On April 1, 2020, Escobar went to the San Pedro residence to
visit another friend and was not aware Cigliano lived there.
When Escobar knocked, Cigliano opened the door, threatened to
kill him, and appeared to have a gun. Cigliano began “charging”
at him. Escobar backed away and fired a warning shot into the
ground in the space between them. When Cigliano did not stop
advancing, Escobar fired two or three more shots at the same
area, hitting Cigliano in the legs when he ran into the gunfire.
He did not tell the detectives that he acted in self-defense
because he did not want to be considered a “snitch” for telling
police Cigliano came at him with a gun.
4
The jury found Escobar guilty on all counts. It found the
attempted murder was willful, deliberate, and premeditated. It
also found true the firearm enhancements as to counts 1 and 2
and the great bodily injury allegation as to count 2. The court
sentenced Escobar to life imprisonment plus 13 years on count 1,
and a consecutive determinate term of four years on count 4. The
court imposed and stayed sentences on counts 2 and 3.
Escobar timely appealed.
DISCUSSION
I. Ineffective Assistance of Counsel
A. Standard of review
The Sixth Amendment to the United States Constitution
and article I, section 15 of the California Constitution guarantee
the right to the assistance of counsel in criminal prosecutions.
The “proper standard for attorney performance is that of
reasonably effective assistance.” (Strickland v. Washington
(1984) 466 U.S. 668, 687; People v. Pope (1979) 23 Cal.3d 412, 424
[attorney must provide “reasonably competent assistance”].) An
ineffective assistance claim “has two components. First, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” (Strickland, at p. 687.)
“Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel
[citation], and there is a ‘strong presumption that counsel’s
5
conduct falls within the wide range of reasonable professional
assistance.’ [Citation.] Defendant’s burden is difficult to carry on
direct appeal, as we have observed: ‘ “Reviewing courts will
reverse convictions [on direct appeal] on the ground of inadequate
counsel only if the record on appeal affirmatively discloses that
counsel had no rational tactical purpose for [his or her] act or
omission.” ’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415,
436–437.) “Where the record contains no explanation for the
challenged representation, we will reject an ineffective assistance
claim unless counsel was asked to explain his performance and
failed to provide an explanation, or unless there simply could be
no satisfactory explanation.” (People v. King (2010) 183
Cal.App.4th 1281, 1299; People v. Ledesma (1987) 43 Cal.3d 171,
218.)
B. Evidence regarding Escobar’s gang affiliation
Escobar argues his trial counsel rendered ineffective
assistance by: (1) failing to object to Officer Malagi Nua’s
testimony about Escobar’s membership in the Rancho San Pedro
gang and his moniker “Pistol Pete”; (2) failing to move to exclude
portions of the police interview in which Escobar and officers
discussed his moniker, “Pistol Pete”; and (3) failing to object to
Officer Daniel Rosales’s testimony recounting Cigliano’s
statement that the shooter was a member of “ ‘the Ranch.’ ” We
conclude Escobar fails to establish his trial counsel’s performance
was deficient.
1. Challenged evidence
Officer Rosales responded to the scene of the shooting on
April 1, 2020, and later spoke to Cigliano as part of his
investigation. He testified that at the hospital, Cigliano “didn’t
want to talk with officers, but then . . . he told us he didn’t want
6
to snitch and that the shooter was from ‘the Ranch,’ as in the
Rancho San Pedro Street Gang.”
Officer Nua is an officer with the Harbor Division. Nua
testified that he was shown surveillance video collected during
the investigation of Cigliano’s shooting. Nua identified Escobar
in the video. Nua was familiar with Escobar because Nua had
prior contact with him in the late 1990s while Nua was a gang
officer. Nua testified that he had been involved in over 100
investigations of the Rancho San Pedro gang—known as “the
Ranch”—and had multiple conversations with Escobar during
these investigations. Nua knew Escobar to be a member of the
gang at that time and formed “the strong opinion” that his gang
moniker was “Pistol Pete.”
During rebuttal, the prosecution played a recording of
Escobar’s April 13, 2020 interview with police. The transcript
reflects that in the course of the interview, a detective asked
Escobar why he was called “Pistol Pete.” After initially evading
the question, Escobar denied being a current or former gang
member several times. In response to the detective’s question
about whether “Pistol Pete” was “what they used to call
[Escobar],” Escobar responded, “Yeah.”
2. Discussion
Escobar argues there could be no rational, tactical reason
for his trial counsel’s failure to challenge the relevance of the
aforementioned evidence because there was no allegation that the
shooting was gang-related. We disagree.
“A claim of ineffective assistance of counsel based on a trial
attorney’s failure to make a motion or objection must
demonstrate not only the absence of a tactical reason for the
omission [citation], but also that the motion or objection would
7
have been meritorious, if the defendant is to bear his burden of
demonstrating that it is reasonably probable that absent the
omission a determination more favorable to defendant would
have resulted.” (People v. Mattson (1990) 50 Cal.3d 826, 876.)
“ ‘[B]ecause trial counsel’s tactical decisions are accorded
substantial deference [citations], failure to object seldom
establishes counsel’s incompetence.’ [Citation.]” (People v.
Williams (1997) 16 Cal.4th 153, 215.)
We cannot conclude that no rational, tactical purpose
existed for defense counsel’s failure to object to evidence and
testimony regarding Escobar’s gang affiliation. Indeed, the
record affirmatively indicates why Escobar’s trial counsel elected
not to object to Nua’s testimony and suggests a tactical reason for
his failure to object to the other evidence of gang affiliation
Escobar challenges on appeal.
During a colloquy outside the presence of the jury during
Escobar’s direct examination, defense counsel argued testimony
regarding Cigliano’s past bad acts should be admitted because
the prosecution elicited testimony from Nua regarding Escobar’s
purported gang involvement. The court noted that counsel had
not objected to Nua’s testimony about Escobar’s gang
involvement. Defense counsel responded, “Two things with that.
One is, I don’t mind if [Nua] was given enough rope to hang
himself with. I think that’s phenomenal for the defense. Second
. . . I’ve been told by a thousand jurors, objections by the defense
are, ‘That scumbag is trying to keep evidence from us.’ So as a
matter of my own strategy, I don’t do that.”
Whether to object to testimony “is highly tactical, and
depends upon counsel’s evaluation of the gravity of the problem
and whether objection or other responses would serve only to
8
highlight the undesirable testimony.” (People v. Catlin (2001) 26
Cal.4th 81, 165.) Defense counsel here expressly stated that as a
strategic matter, he did not object to Nua’s testimony because he
felt it might discredit Nua and therefore be helpful to Escobar.
Counsel also believed an objection would leave jurors with the
impression the defense was hiding evidence related to Escobar’s
gang association. Counsel therefore made the rational
determination that objecting would be more hurtful than helpful
to Escobar’s case. The same reasoning could have applied equally
to other evidence of Escobar’s prior gang affiliation. (Ibid.)
Further, it appears defense counsel made a rational,
tactical choice to attempt to undermine the prosecution’s case
through cross-examination of Nua and Rosales, rather than by
objecting during the People’s case. (People v. Mixon (1982) 129
Cal.App.3d 118, 138 [counsel’s decision to undermine officer
identifications through cross-examination instead of objecting to
testimony was “ ‘an informed tactical choice’ ”].) Escobar’s trial
counsel extensively cross-examined Nua regarding the basis for
his opinion that Escobar was a gang member. In part, defense
counsel elicited testimony that Escobar never told Nua he was a
gang member; the gang unit had never documented Escobar’s
gang affiliation; Nua did not know if Escobar had been arrested
for gang activity or housed as a gang member in custody; and
Nua believed Escobar had been a gang member “in the past” but
did not know if he was at the time of trial. In his closing
argument, defense counsel referred to the unreliability of Nua’s
testimony to cast doubt on the integrity of the prosecution’s case
as a whole.
Similarly, defense counsel used the cross-examination of
Rosales about Cigliano’s statement that the shooter was from the
9
Ranch gang as an opportunity to discredit Rosales and to
emphasize to the jury that Cigliano had a criminal history.
Cigliano admitted on cross-examination that he provided a fake
name to police because he had an outstanding warrant. Defense
counsel subsequently elicited testimony from Rosales raising the
possibility that Cigliano declined to cooperate with police to hide
his own criminal conduct, and not out of fear of gang retaliation.
In closing argument, defense counsel cited this testimony when
arguing that the entire case represented an example of
“government overreach” and bias. Defense counsel asserted
Rosales knew Cigliano lied because of his outstanding warrants,
yet Rosales disingenuously tried to make the jurors believe that
Cigliano feared gang retaliation. This line of attack would not
have been possible had defense counsel successfully objected to
Rosales’s testimony on direct.
With respect to the police interview, the record permits the
reasonable inference that counsel chose not to move to exclude
portions of the interview discussing the moniker “Pistol Pete”
because they also contained statements favorable to Escobar.
During the detectives’ line of inquiry into whether people called
Escobar “Pistol Pete,” Escobar repeatedly denied that he was ever
in a gang and insisted the moniker was just an old nickname.
These assertions were consistent with Escobar’s testimony at
trial that he was not, nor had he ever been, a gang member. On
this record, we cannot conclude that there could be no
satisfactory explanation for counsel’s decision not to move to
exclude the portions of the police interview referencing the “Pistol
Pete” moniker.
Moreover, defense counsel could reasonably question the
validity of an objection based on either relevance or undue
10
prejudice, as the evidence was at least arguably admissible on
issues of identity and witness credibility.
Rosales’s testimony established that after the shooting,
Cigliano identified the shooter only as someone “from ‘the
Ranch.’ ” Nua’s testimony explained how law enforcement was
able to identify Escobar as the shooter. Thus, although it
revealed a gang affiliation, evidence establishing that Escobar
was the shooter was relevant. (People v. Hernandez (2004) 33
Cal.4th 1040, 1049.) And, although identity was eventually
undisputed, the prosecution had the burden of proving all
elements of the charged crimes, including identity, during its
case-in-chief. (People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4
[“ ‘[T]he prosecution’s burden to prove every element of the crime
is not relieved by a defendant’s tactical decision not to contest an
essential element of the offense.’ ”].)
Further, “ ‘ “[e]vidence a witness is afraid to testify is
relevant to the credibility of that witness and is therefore
admissible. (Evid. Code, § 780; [citation].)” ’ ” (People v. Sanchez
(1997) 58 Cal.App.4th 1435, 1449.) Defense counsel attempted to
impeach Cigliano by noting details he had not disclosed to police
about the shooting. Rosales’s testimony provided an explanation
for Cigliano’s initial lack of cooperativeness: he believed Escobar
was associated with “the Ranch” and Cigliano was unwilling to
“snitch.” Nua’s testimony that he believed Escobar had been
associated with “the Ranch” and was known by the moniker
“Pistol Pete” lent credibility to Cigliano’s fear of retaliation, as
did Escobar’s statements in the police interview corroborating his
past use of the moniker.
Moreover, the trial court could reasonably have determined
the potential prejudicial effect of the evidence of Escobar’s gang
11
ties did not substantially outweigh its probative value. (Evid.
Code, § 352.) The evidence was limited and did not involve any
inflammatory information about the level of Escobar’s
involvement in the gang or specific gang activity. Escobar’s
counsel was not deficient in failing to object to evidence that was
arguably relevant and admissible. (People v. Beasley (2003) 105
Cal.App.4th 1078, 1092, citing People v. Price (1991) 1 Cal.4th
324, 387.)
C. Detective Halka’s testimony
Escobar also contends his trial counsel provided ineffective
assistance by failing to object to Detective Gregory Halka’s
testimony regarding ballistics evidence. Specifically, Escobar
argues defense counsel should have objected to Halka’s testimony
because: (1) it relied on inadmissible hearsay in the form of
Cigliano’s medical records; and (2) the prosecution had not
established Halka’s competence to testify to “how a victim’s
movements would alter the ballistics angle of the shooter’s bullet
. . . .” We reject Escobar’s arguments.
1. Background
Halka assisted in the investigation of the shooting. He
described his “background, training, and experience as it related
to guns, firing guns, and investigating shootings[.]” Halka
testified: “We are required to attend trainings multiple times
throughout the year. I’ve been a sworn [police] officer for
approximately 19 years. I’ve investigated multiple shooting
investigations, including but not limited to homicides, attempted
murders, robberies, [assault with a deadly weapon] shootings.”
On direct examination, Halka testified, among other things,
about the location of the shooter in the yard based on where
bullet casings were found at the scene.
12
After Escobar testified, the prosecution recalled Halka in
rebuttal. The prosecutor asked Halka if the nature of Cigliano’s
injuries was consistent with Escobar’s version of events. Halka
testified that based on his review of Cigliano’s injuries as
documented in his medical records, it appeared Cigliano was shot
by someone facing him. Halka further observed there was “a
slight angle” to Cigliano’s gunshot wounds, indicating Cigliano
was shot while he was standing still. Halka opined that the
bullet wounds would “be at a more flat angle” if Cigliano was
“charging or turning,” but were instead “perpendicular,”
reflecting that Cigliano had been standing and was “shot from a
downward angle.” Halka concluded the evidence was
inconsistent with Escobar’s testimony that Cigliano had been
“charging” at him, or that the two had been engaged in any sort
of struggle when Cigliano was shot.
2. Medical records
During trial, the prosecutor entered Cigliano’s medical
records into evidence “by stipulation.” The records included an
affidavit from the custodian of records “attesting they [were] true
and correct copies” of Cigliano’s treatment for the gunshot
wounds to his legs. The court received the records into evidence
without objection.
Under the business records exception, a hearsay writing is
admissible if it was “made in the regular course of a business,”
“at or near the time of the act, condition, or event,” a custodian
“testifies to its identity and the mode of its preparation,” and
“[t]he sources of information and method and time of preparation
were such as to indicate its trustworthiness.” (Evid. Code,
§ 1271.) “Hospital records, if properly authenticated, are
admissible under the business records exception to the hearsay
13
rule.” (People v. Orey (2021) 63 Cal.App.5th 529, 552 (Orey).)
Records “produced by the custodian or other qualified witness,
together with the affidavit described in [Evidence Code]
section 1561,” may establish the business records exception
without the need for live witness testimony.3 (People v. McVey
(2018) 24 Cal.App.5th 405, 414.)
We find no basis to conclude defense counsel’s failure to
object to Halka’s testimony based on Cigliano’s medical records
as hearsay constituted ineffective assistance of counsel. Escobar
does not contend that the affidavit from the custodian of records
failed to satisfy the foundational requirements of Evidence Code
section 1561. Nor does Escobar argue that Halka’s testimony
was based on content in the records not subject to the business
records exception. (See Orey, supra, 63 Cal.App.5th at p. 552
[notations on hospital records made by employees with duty to
accurately report “provid[ed] an exception to the second level of
hearsay” under public records or business records exception].)
Counsel therefore reasonably could have decided not to object to
Halka’s testimony based on the records because they were
properly authenticated and fell within an exception to the
hearsay rule. (Shugart v. Regents of University of California
(2011) 199 Cal.App.4th 499, 506 [properly authenticated medical
records provide foundation for expert opinion]; see also Wicks v.
3 Evidence Code section 1561, subdivision (a) provides that
an affidavit accompanying records must state: (1) the affiant is a
custodian or other qualified witness with the authority to certify
the records; (2) the documents are true copies of the records
requested; (3) the records were prepared in the ordinary course of
business at or near the time of the act, condition, or event; (4) the
identity of the records; and (5) a description of the mode of
preparation of the records.
14
Antelope Valley Healthcare Dist. (2020) 49 Cal.App.5th 866, 876
[“The medical records were properly authenticated as the
hospital’s business records, and as such, they are not hearsay.”].)
3. Halka’s opinions regarding bullet trajectory
Escobar contends his trial counsel also provided deficient
representation by failing to object to Halka’s testimony for lack of
foundation. He argues Halka was not qualified to testify
regarding how Cigliano’s physical movements affected the angle
of the bullets.
Even assuming defense counsel could have raised a
meritorious objection as to the foundation for Halka’s testimony,
we cannot conclude that there was no satisfactory explanation for
counsel’s failure to object. As with previous witnesses, Escobar’s
attorney could have reasonably elected to cross-examine Halka to
reveal flaws in the investigative procedure and weaknesses in
Halka’s conclusions rather than object to Halka’s qualifications.
The record reflects counsel did so with some success, having
elicited from Halka that the police did not use “trajectory rods”
during the investigation, which were specifically designed to
determine “the angle to which the bullet travels from Point A, the
exit of the barrel, to Point B, which is whatever object or thing it
strikes.” In addition, the record does not establish that, had
defense counsel objected, the prosecutor would have been unable
to lay additional foundation for Halka’s testimony. Defense
counsel could reasonably choose to avoid that risk.
In sum, Escobar has not shown that his trial counsel failed
to provide reasonably competent representation by not objecting
to the challenged testimony and evidence.
15
II. Sentencing
Escobar also contends that the trial court made several
errors in sentencing. He argues the trial court erroneously
applied a prior strike to his sentence without “clearly
adjudicating” the prior conviction allegation. Escobar also
contends, and the prosecution concedes, that (1) the trial court
erroneously sentenced him on a great bodily injury enhancement
on count 1 that was not presented to the jury; and (2) the abstract
of judgment fails to reflect that the court stayed the sentencing
enhancements on count 2. We reject Escobar’s argument that the
trial court failed to adjudicate his prior strike. We agree with the
parties as to the error in the sentence on count 1 and the abstract
of judgment, and we modify the judgment accordingly.
A. Background
In the information, the prosecution alleged that appellant
sustained a prior conviction in 2015 that qualified as a strike
offense. Before the trial began, Escobar admitted suffering the
prior conviction. After the parties submitted the case to the jury,
Escobar waived his right to a jury trial on the prior conviction.
At the sentencing hearing, the court began the proceedings
by asking, “We’re also here for, I guess, a trial on the priors and
the [California Rules of Court, rule] 4.421 factor?” The
prosecutor agreed and noted that Escobar had previously
admitted the prior. The prosecutor submitted “a three-page
certified [section] 969(b) packet, and an eight-page certified
CLETS.” Defense counsel confirmed that he had reviewed the
exhibits. The court received the exhibits into evidence and heard
argument.
The court then sentenced Escobar on count 1 (attempted
murder) to an indeterminate term of life in prison with the
16
possibility of parole, with 14 years to be served before parole
eligibility. The court struck the section 12022.53 firearm
enhancement, finding “that the [section] 12022.5(a) enhancement
is more than appropriate in this case, in light of the fact that Mr.
Escobar has a prior strike.” The court imposed a 10-year prison
term on the section 12022.5, subdivision (a) firearm
enhancement. The court then stated, “And then we have the
[great bodily injury] on the [section] 12022.7, and that is three
years . . . .” The court ordered the 10-year sentence on the
firearm enhancement and the three-year sentence on the great
bodily injury enhancement to run consecutive to count 1.
For count 2 (assault with a deadly weapon), the court
imposed a sentence of “three years times two, per the three-
strikes law for six years, plus you have the [great bodily injury
enhancement], three years, and the [section] 12022.5, which
would be four years.” The court then stayed the sentence on
count 2. As to count 3, the court selected the midterm of two
years, doubled to four years for the prior strike, and stayed the
sentence. For count 4, the court selected the midterm of two
years, doubled to four years for the prior strike, and ordered the
sentence to run consecutively. Toward the end of the hearing, the
prosecutor asked if “the court actually did make a finding that
the alleged prior was true . . . ?” The court confirmed it had. The
court admitted the People’s two exhibits into evidence, without
objection.
B. Prior strike finding
Escobar contends the trial court erred by failing to
adjudicate the prior conviction allegation on the record before
imposing a sentence pursuant to the Three Strikes law. We
disagree.
17
When making a finding on a prior strike allegation, trial
courts must make “ ‘[r]eference to the prior conviction . . . in the
pronouncement of judgment’ ”; a silent record permits the
inference that the trial court made a finding that the prior strike
conviction was not true. (People v. Farias (2023) 92 Cal.App.5th
619, 635, review granted Sept. 27, 2023, S281027.)
The record here was not silent. Rather, it reflects that the
trial court adjudicated Escobar’s prior strike. It is undisputed
that Escobar admitted the prior conviction before trial. The
prosecution introduced his certified prison records and a report of
his criminal history. The trial court formally admitted the
documents without objection. Escobar’s attorney had the
opportunity to argue on his behalf. When imposing the sentence,
the court made numerous express references to Escobar’s prior
strike. It struck the section 12022.53 enhancement “in light of
the fact that Mr. Escobar has a prior strike.” The court doubled
his sentence on count 2 “per the three-strikes law.” Before
reading Escobar his right to appeal, the court clarified in
response to the prosecutor’s inquiry that it had, in fact, found the
alleged prior to be true. The trial court’s implied and explicit
findings on the record that the prior strike was true were
sufficient to adjudicate the allegation. (See People v. Clair (1992)
2 Cal.4th 629, 691, fn. 17 [after defendant waived jury trial on
prior, court considered certified record of conviction, and the
parties presented argument, court “impliedly—but sufficiently”
found true a prior conviction allegation by imposing enhancement
expressly for the prior]; see also People v. Williams (2002) 99
Cal.App.4th 696, 701 [trial court impliedly found felony was
serious for purposes of Three Strikes by imposing term of
imprisonment under § 667, subd. (a)].)
18
C. Remaining issues
Both parties agree, as do we, that the trial court
erroneously imposed a sentence for a great bodily injury
enhancement on count 1 that was not submitted to the jury.
Although Escobar contends this court must remand for a full
resentencing, he fails to identify the sentencing choices it would
be appropriate for the trial court to restructure flowing from the
elimination of the great bodily injury enhancement on count 1.
(People v. Francis (2017) 16 Cal.App.5th 876, 887.) We exercise
our authority to modify the sentence on appeal and strike the
three-year term imposed for the great bodily injury enhancement
as to count 1.
The parties further agree that the abstract of judgment
erroneously omits any notation indicating that, as to count 2, the
sentences of three years for the great bodily injury allegation and
four years for the firearm allegation are stayed. “Where there is
a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral
pronouncement controls.” (People v. Zackery (2007) 147
Cal.App.4th 380, 385.) We agree that the abstract of judgment
must be corrected to reflect the oral pronouncement of the court.
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DISPOSITION
The judgment is modified as follows: the three-year great
bodily injury enhancement (§ 12022.7) on count 1 is stricken.
The trial court is directed to prepare a corrected abstract of
judgment reflecting the above modification to count 1, and that
the three-year great bodily injury enhancement and four-year
firearm enhancement on count 2 are stayed. The trial court is
directed to forward a copy of the corrected abstract of judgment to
the California Department of Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
EGERTON, J.
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