The opinion
Filed 2/27/26 P. v. Mercado CA4/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084260
Plaintiff and Respondent,
v. (Super. Ct. No. FVI21001892)
GERMAN MERCADO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino,
Shannon L. Faherty, Judge. Affirmed in part; reversed in part; remanded
with directions.
Steven A. Torres, 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,
Christopher P. Beesley, and Kristen Kinnaird Chenelia, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury convicted German Mercado of attempted murder (Pen. Code,1
§§ 664, 187, subd. (a); count 1); assault with a firearm (§ 245, subd. (a)(2);
count 2); felon in possession of a firearm (§ 29800; count 3); and felon in
possession of ammunition (§ 30305; count 4). The jury also found true great
bodily injury enhancements (§ 12022.7, subd. (a)) and firearm enhancements
(§§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d)).
In a bifurcated proceeding, the trial court found true that Mercado had
two prior strike convictions (§ 1170.12, subds. (a)−(d), 667, subds. (b)−(i)) as
well as two prison prior convictions (§ 667, subd. (a)(1)) based on a guilty plea
taken on the same day in June 2010 regarding two separate cases.
Mercado subsequently moved to represent himself, which the court
granted. The court later denied Mercado’s motions for ancillary fees to pay
for a legal runner and an investigator.
The court sentenced Mercado to prison for an indefinite term of
52 years to life plus a determinative term of 10 years in prison, consisting of
nine years for count 1, tripled under section 1170.12, subdivision (c)(2)(A)(i);
a consecutive 25 years to life pursuant to the firearm enhancement
(§ 12022.53, subd. (d)); and two consecutive five year sentences for Mercado’s
prior prison convictions. (§ 667, subd. (a)(1).)2
Mercado appealed, contending the court improperly instructed the jury
regarding the use of his prior convictions, the prosecutor committed
misconduct by vouching for a witness’s credibility, and cumulative error
warrants reversal. Mercado also maintained that the trial court violated his
1 Statutory references are to the Penal Code unless otherwise specified.
2 Under sections 654 and 12022.53, subdivision (f), the court imposed
and stayed an additional 95 years in prison.
2
Sixth Amendment rights by denying his motion for ancillary funds to hire a
legal runner and private investigator.
Mercado also argued the trial court violated recent amendments to
section 1385 created by Senate Bill No. 81 (2021–2022 Reg. Sess.) (Senate
Bill 81) (Stats. 2021, ch. 721, § 1)3 in sentencing him. He argued the trial
court could not make a true finding that Mercado’s section 186.22,
subdivision (a) offense from 2010 qualified as a strike prior or a serious felony
because the prosecutor failed to prove, beyond a reasonable doubt, the
elements of that offense as explained in People v. Rodriguez (2012) 55 Cal.4th
1125 (Rodriguez) and/or as changed by Assembly Bill No. 333 (2021–2022
Reg. Sess.) (Assembly Bill 333).
In an unpublished opinion, we agreed with Mercado that the court’s
true finding that his 2010 conviction for violating section 186.22,
subdivision (a) constituted a prior strike and a serious felony did not pass
muster under Rodriguez. We thus remanded the matter back to the superior
court to allow the prosecution to retry Mercado on that issue only.
We disagreed, however, with Mercado’s alternative argument that
Assembly Bill 333’s change to the definitions for active gang participation
applied to Mercado’s final 2010 conviction for purposes of evaluating whether
it qualified as a strike prior.
The California Supreme Court granted and held Mercado’s petition for
review pending consideration of this later issue in People v. Fletcher,
S281282. (People v. Mercado, S288449, Supreme Ct. Mins., Jan. 22, 2025.)
3 The Legislature has amended section 1385, subdivision (c) twice since
enacting Senate Bill 81, but the more recent changes to section 1385,
subdivision (c) do not affect our analysis of defendant’s claim. (See
Stats. 2022, ch. 58, § 15; Stats. 2023, ch. 131, § 160.)
3
The Supreme Court concluded “where a defendant has suffered a conviction
under the prior version of section 186.22, Assembly Bill 333 applies to the
determination of whether the conviction qualifies as a prior serious felony
conviction under subdivision (c)(28) of section 1192.7 for purposes of the
Three Strikes law and prior serious felony enhancements.” (People v.
Fletcher (2025) 18 Cal.5th 576, 583 (Fletcher).) After reaching its decision
in Fletcher, the Supreme Court transferred this matter back to us with
directions to vacate our previous opinion and reconsider the cause.
We comply with the California Supreme Court’s instructions and
hereby vacate our prior opinion. We consider Mercado’s claims, taking into
consideration Fletcher. In their supplemental briefs (see Cal. Rules of Court,
rule 8.200(b)(1)), the parties agree the matter should be remanded for the
trial court to determine whether appellant’s prior conviction qualifies as a
strike prior and a serious felony prior after considering the ameliorative
changes of Assembly Bill 333. Accordingly, we remand the matter to the
superior court for further proceedings consistent with this opinion. In all
other respects, we affirm the judgment.
FACTUAL BACKGROUND
On July 2, 2021, deputies responded to a shooting near Puesta Del Sol
and Tawney Ridge in Victorville. There, Gilberto B. was lying in the roadway
with bullet wounds in the center of his back and behind his left ear.
Later, Christian R. came to the police station with information about
the shooting. Christian lived with his mother and younger brother nearby on
Calandria Way. Mercado lived next door.
On the day of the shooting, Christian returned home from work around
noon, changed his clothes, and smoked marijuana in his garage. Mercado
4
came over, told Christian someone had tried to break into his house, and
asked for a ride around the corner.
Christian drove Mercado to the intersection of Puesta Del Sol and
Barranca Way, a few blocks away. As Christian was about to turn right at
the stop sign, Mercado jumped out of the car, crossed in front of the car, and
began arguing with a man and a woman. They were yelling in Spanish.
Mercado pulled out a gun and shot the man in the abdomen and the face from
a few feet away. The man fell to the ground, and the woman screamed and
ran off. Christian did not know that Mercado had a gun.
Christian drove off as Mercado chased after the car. When Christian
arrived home, he closed the garage and checked on his brother. He saw
Mercado return home, but they did not speak. Christian and his mother
went to the police station that evening, and Christian told the police what
had happened.
Law enforcement executed a search warrant at Mercado’s home. They
found a black nylon pistol holder in the living room.
At trial, Gilberto, the gunshot victim, did not remember what happened
the day he was shot. The first thing he remembered was waking up in the
hospital. Gilberto did not know Mercado and could not identify him in court.
Gilberto said that since the shooting, he stutters and “get[s] lost in his
words.” He struggles with using his muscles and remembering how to do
everyday activities such as push-ups and putting on his shoes. Gilberto can
no longer see with his left eye or drive a truck for a living.
5
DISCUSSION
I. JURY INSTRUCTIONS
A. Mercado’s Contentions
Mercado asserts that the trial court did not properly instruct the jury
regarding the use of his prior conviction. Specifically, he insists the provided
instructions did not sufficiently explain the limited nature of Mercado’s
previous conviction and that the jury could not use it to conclude that
Mercado was a bad person and thus committed the underlying crimes. We
are not persuaded.
B. Background
Mercado stipulated to having a felony prior conviction for the purpose
of the felon in possession of a firearm (§ 29800; count 3) and ammunition
(§ 30305; count 4) charges. The parties agreed to provide the jury with
CALCRIM No. 303 on limited purpose evidence, as follows: “During the trial
certain evidence was admitted for a limited purpose. You may consider that
evidence only for that purpose and no other. It was stipulated that the
defendant has suffered a prior felony conviction.”
In addition, the trial court instructed the jury on count 3 with
CALCRIM No. 2511, as follows:
“The defendant is charged in Count 3 with unlawfully
possessing a firearm.
“To prove that the defendant is guilty of this crime, the
People must prove that:
“1. The defendant possessed a firearm;
“2. The defendant knew he possessed the firearm;
“AND
“3. The defendant had previously been convicted of a felony.
6
“A firearm is any device designed to be used as a weapon,
from which a projectile is expelled or discharged through a
barrel by the force of an explosion or other form of
combustion.
“The defendant and the People have stipulated, or agreed,
that the defendant was previously convicted of a felony.
This stipulation means that you must accept this fact as
proved.
“Do not consider this fact for any other purpose. Do not
speculate about or discuss the nature of the conviction.”
The trial court also instructed the jury on count 4 with CALCRIM
No. 2591:
“The defendant is charged in Count 4 with unlawfully
possessing ammunition.
“To prove that the defendant is guilty of this crime, the
People must prove that:
“1. The defendant possessed ammunition;
“2. The defendant knew he possessed the ammunition;
“AND
“3. The defendant had previously been convicted of a
felony.
“Ammunition means a bullet, cartridge, magazine, clip,
speed loader, autoloader, or projectile capable of being fired
from a firearm with a deadly consequence. Ammunition
includes reloaded ammunition.
“The defendant and the People have stipulated, or agreed,
that the defendant was previously convicted of a felony.
This stipulation means that you must accept this fact as
proved.
“Do not consider this fact for any other purpose. Do not
speculate about or discuss the nature of the conviction.”
7
C. Applicable Law
We review a claim of instructional error de novo. (People v. Posey
(2004) 32 Cal.4th 193, 218.) “Review of the adequacy of instructions is based
on whether the trial court ‘fully and fairly instructed on the applicable law.’
[Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In
determining whether error has been committed in giving jury instructions,
we consider the instructions as a whole and assume jurors are intelligent
persons, capable of understanding and correlating all jury instructions which
are given. (Ibid.) “ ‘Instructions should be interpreted, if possible, so as to
support the judgment rather than defeat it if they are reasonably susceptible
to such interpretation.’ [Citation.]” (Ibid.) “The crucial assumption
underlying our constitutional system of trial by jury is that jurors generally
understand and faithfully follow instructions.” (People v. Mickey (1991)
54 Cal.3d 612, 689, fn. 17.)
D. Analysis
Mercado’s primary argument challenging the jury instructions is that
the jury was not instructed that it could only consider Mercado’s previous
felony conviction for a limited purpose. This argument is not supported by
the record.
Because Mercado stipulated to having a prior felony conviction, the
trial court properly instructed the jury with CALCRIM Nos. 2511 and 2591,
with the additional supplemental instructions that the jury should “not
consider this fact for any other purpose” or “speculate about or discuss the
nature of the conviction.” Contrary to Mercado’s claim, the jury was informed
that his felony conviction could only be used for the limited purpose of
proving that element in counts 3 and 4. Accordingly, there was no
instructional error.
8
To the extent that Mercado now claims the given instructions were
incomplete, it was incumbent on him to request additional instructions
during trial. His failure to do so forfeits this contention on appeal. (See
People v. Lee (2011) 51 Cal.4th 620, 638.)
Mercado argues that we should reach the merits of his argument
because the alleged instructional error affected his substantial rights.
(§ 1259.) Yet, as we discussed ante, we find no error in the manner the court
instructed the jury. Thus, forfeiture is appropriate here.
In anticipation of a finding of forfeiture, Mercado argues that he
received ineffective assistance of counsel because his trial counsel did not
request additional instructions. To establish ineffective assistance of counsel,
a “[d]efendant must show that counsel’s performance was both deficient and
prejudicial, i.e., that it is reasonably probable that counsel’s unprofessional
errors affected the outcome.” (People v. Castillo (1997) 16 Cal.4th 1009,
1014–1015, citing Strickland v. Washington (1984) 466 U.S. 668, 687,
693–694.) “[I]f the record sheds no light on why counsel acted or failed to act
in the challenged manner, we must reject the claim on appeal unless counsel
was asked for an explanation and failed to provide one, or there could be no
satisfactory explanation for counsel’s performance.” (Castillo, at p. 1015.)
Obviously, given the correctness of the jury instructions, defense counsel
could have reasonably concluded that the instructions, as given, adequately
advised the jury and that no further instruction was necessary. (See id. at
p. 1018 [counsel could reasonably conclude pinpoint instruction relating
evidence of intoxication to premeditation was unnecessary because
instructions adequately advised jury].) Further, on the record before us, we
find no prejudice because the jury was explicitly instructed as to the limited
use of Mercado’s stipulation that he had been convicted of a prior felony, and
9
Mercado has offered no argument to challenge the assumption that the jury
understood and followed the instructions. (See People v. Mickey, supra,
54 Cal.3d at p. 689, fn. 17.)
II. PROSECUTORIAL MISCONDUCT
A. Mercado’s Contention
Mercado contends that the prosecutor improperly vouched for a
witness’s credibility during closing argument. We disagree.
B. Background
During her closing argument, Mercado’s trial counsel emphasized that
the prosecution’s case hinged entirely on the testimony of Christian.
Moreover, defense counsel suggested that Christian had a reason to lie
because “he [did not want to] get wrapped up as an accessory to this crime.”
And she emphasized why Christian was not to be believed.
During rebuttal closing argument, the prosecutor directly addressed
defense counsel’s assertion that Christian was not believable. To this end,
the prosecutor emphasized that Christian, Mercado, and the victim were the
only witnesses at the scene of the crime. She pointed out how well Christian
knew Mercado and Mercado’s family. The prosecutor explained that
Christian “ha[d] no motive to lie. Why would he risk getting the Mercados,
his next door neighbors, the people that he, his mom, and his 14 year-old
brother have to live next to, why would he risk getting them mad? Why
would he risk coming in and lying about their son and still have to go back to
the house and live next to them.”
After discussing the details of Christian’s testimony, the prosecutor
noted:
“If he was going to lie, wouldn’t he help the person that,
again, he knows, he knows his mom and dad, he lives next
door to them instead of the random person, [Gilberto], that
10
he’s never met and will probably never know? Why would
he help this random stranger? He's not helping anyone.
He’s telling the truth about what happened that day.”
Additionally, the prosecutor emphasized that Christian was scared and
hesitant to testify, but “he still came in to tell you the truth.” And the
prosecutor observed that Christian “didn’t ask for this . . . but he came in and
told you the truth.”
Mercado’s trial counsel did not object during the prosecutor’s rebuttal
closing argument.
C. Analysis
The law governing claims of prosecutorial misconduct is well
established. Prosecutorial misconduct exists “ ‘under state law only if it
involves “ ‘the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.’ ” ’ [Citations.]” (People v. Earp (1999)
20 Cal.4th 826, 858.) In more extreme cases, a defendant’s federal due
process rights can be violated when a prosecutor’s improper remarks so infect
the proceedings that it renders the trial fundamentally unfair. (Ibid.) On
appeal, “[t]o prevail on a claim of prosecutorial misconduct based on remarks
to the jury, the defendant must show a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or
erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly
infer’ that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th
894, 970 (Frye).) Moreover, “we must view the statements in the context of
the argument as a whole.” (People v. Cole (2004) 33 Cal.4th 1158, 1203.)
Generally, a prosecutor has “ ‘wide latitude to discuss and draw inferences
from the evidence at trial,’ and whether ‘the inferences the prosecutor draws
are reasonable is for the jury to decide.’ ” (Ibid.) The relevant question is
11
“ ‘whether there is a reasonable likelihood that the jury construed or applied
any of the complained-of remarks in an objectionable fashion.’ ” (Id. at
pp. 1202–1203.)
Nevertheless, “ ‘ “[a]s a general rule a defendant may not complain on
appeal of prosecutorial misconduct unless in a timely fashion—and on the
same ground—the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the impropriety.” ’
[Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 251–252.) An
exception to this rule provides “[a] defendant will be excused from the
necessity of either a timely objection and/or a request for admonition if either
would be futile. [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 820.)
Similarly, failure to request the jury be admonished does not forfeit the issue
for appeal if “ ‘ “an admonition would not have cured the harm caused by the
misconduct.” ’ [Citation.]” (Ibid.)
Here, Mercado has not established that an objection or request for
admonition would have been futile. Thus, Mercado’s contention is
accordingly forfeited. Anticipating this conclusion, Mercado claims the
failure to object constituted ineffective assistance of counsel.
As we discussed ante, to win reversal for ineffective assistance of
counsel, a defendant must show both that counsel performed below
professional norms of competence and that defendant was reasonably likely
to have obtained a more favorable result absent counsel’s incompetence.
(People v. Maury (2003) 30 Cal.4th 342, 389.)
Mercado claims that the prosecutor impermissibly vouched for
Christian’s credibility during the rebuttal closing argument. As our high
court has repeatedly held: “ ‘[A] prosecutor is prohibited from vouching for
the credibility of witnesses or otherwise bolstering the veracity of their
12
testimony by referring to evidence outside the record. [Citations.] Nor is a
prosecutor permitted to place the prestige of her office behind a witness by
offering the impression that she has taken steps to assure a witness’s
truthfulness at trial. [Citation.] However, so long as a prosecutor’s
assurances regarding the apparent honesty or reliability of prosecution
witnesses are based on the ‘facts of [the] record and the inferences reasonably
drawn therefrom, rather than any purported personal knowledge or belief,’
[the prosecutor’s] comments cannot be characterized as improper vouching.’ ”
(People v. Stewart (2004) 33 Cal.4th 425, 499, quoting Frye, supra, 18 Cal.4th
at p. 971, italics in Stewart; accord, People v. Seumanu (2015) 61 Cal.4th
1293, 1330; People v. Boyette (2002) 29 Cal.4th 381, 433 (Boyette).)
Mercado relies on United States v. Kerr (9th Cir. 1992) 981 F.2d 1050
(Kerr). There, the prosecutor made the following remarks during closing
argument: “ ‘Very frankly, ladies and gentlemen, it is very seldom you get
four people, the government was lucky enough to, to have hand-to-hand deals
with the defendant like they did here. So it is going to come down to your
judging the credibility of each one of those four individuals. Were they
hoodwinking [DEA Agent] Mr. Zarndt when I sat there on part of the
interviews, were they hoodwinking me, were they hoodwinking the Court,
when the Court accepts their plea agreements when they agreed to
cooperate?’ [¶] [Defense counsel]: ‘I object to him putting you in this, Judge.
You don't belong.’ [¶] THE COURT: ‘All right. Sustained. I agree.’ [¶] In
addition to this exchange, the transcript also reveals other instances of
vouching for government witnesses that went unchallenged:
‘I think he (Jim Ludden) was very candid.’
‘I don't think it was a pat story, because there are variations.’
‘I think he (Al Butler) was candid. I think he was honest.’
13
‘Al Butler was candid with you folks.’
‘The question is, were they hoodwinking you when they testified? I
think not.’ ” (Kerr, supra, 981 F.2d at pp. 1052–1053.)
The federal court concluded these statements amounted to misconduct,
explaining, “Here, an experienced United States attorney deliberately
introduced into the case his personal opinion of the witnesses’ credibility. He
repeatedly ignored his special obligation to avoid improper suggestions and
insinuations. A prosecutor has no business telling the jury his individual
impressions of the evidence. Because he is the sovereign’s representative, the
jury may be misled into thinking his conclusions have been validated by the
government’s investigatory apparatus.” (Kerr, supra, 981 F.2d at p. 1053.)
“[The prosecutor] added fuel to the fire by suggesting in his closing remarks
that the district court, in accepting the plea agreements of the witnesses, had
been satisfied as to the truthfulness of their proposed testimony. A
prosecutor must not abuse his position and his duty to see justice done by
invoking the authority of the court. ‘That particular form of vouching goes
beyond the mere proffer of an institutional warranty of truthfulness; rather,
it casts the court as an active, albeit silent, partner in the prosecutorial
enterprise.’ ” (Ibid.)
However, in this case, the prosecutor neither stated her personal belief
in the witnesses’ testimony nor invoked the authority of the court as a “silent
partner.” She did not repeatedly state that she personally believed in the
veracity of the witnesses. Indeed, she, unlike the assistant U.S. Attorney in
Kerr, did not refer to herself once in commenting on Christian’s testimony.
Moreover, a review of the statements on which Mercado relies underscores
the differences between Kerr and the instant matter.
14
Here, Mercado claims:
“During [her] final closing argument, the prosecutor
repeatedly told the jury that the witnesses testifying on
[her] behalf identifying [Mercado] were truthful. The
prosecutor argued, as to [Christian], ‘He’s not helping
anyone. He’s telling you the truth about what happened
that day.’ A paragraph later, the vouching continued: ‘This
is someone who is scared and yet he still came in to tell you
the truth.’ [Citation.] Finally, as to the victim, the
prosecutor stated, ‘He didn’t ask for this. [Gilberto] didn’t
ask for this, but he came in and told you the truth.’ ”
Mercado provides these select portions of the prosecutor’s rebuttal
closing argument, but he fails to supply any context and presents these
arguments as if the prosecutor made them out of whole cloth. As a threshold
matter, we note the prosecutor addressed Christian’s credibility only after
defense counsel argued in closing that Christian had motive to lie to avoid
being “wrapped up as an accessory” to the attempted murder charge. In
other words, counsel was telling the jury Christian was lying about Mercado
to ensure he was not criminally linked to the shooting of the victim.
Indeed, defense counsel doubled down on this theme, implying to the
jury that Christian was lying to the police to avoid being charged with
attempted murder:
“Again, yes, [Christian] was very upset, very fearful at the
time he was speaking to the police at the police station.
There’s lots of explanation for that. They don’t believe him.
What if they want some sort of corroborating evidence?
What if they test him for gunshot residue? The story
contemplates that he shot outside his vehicle some twenty
feet away. Would he not be able to explain to the police
how he, the shooter, didn’t get back in his car?”
So, defense counsel was arguing that Christian had motive to lie on the
stand as well as to the police to avoid criminal liability. In fact, counsel
15
suggested that Christian could have been the shooter. In response, the
prosecutor sought to bolster Christian’s credibility, not by vouching for him
but directly countering defense counsel’s argument by referring to the
evidence.
For example, the prosecutor made the statements, “He’s not helping
anyone. He’s telling you the truth about what happened that day,”
immediately after explaining to the jury that Christian had no motive to lie
to benefit the victim, a stranger to him, when he lived next to Mercado and
knows Mercado’s parents. Thus, the prosecutor was not vouching for
Christian. She merely was refuting defense counsel’s contention that
Christian had a reason to lie.
Additionally, when the prosecutor told the jury that Christian was
“scared and yet he still came in to tell you the truth,” she was basing this
argument on the evidence presented at trial. Christian testified that he was
nervous to testify at trial. He agreed that testifying in court was difficult for
him because he knew “Mercado as [his] neighbor.” He further stated that he
“just want[ed] to get everything out of the way as soon as possible.” Thus,
considering this context, the prosecutor’s statement did not reflect her
personal beliefs about Christian’s veracity, nor did it suggest she had
personal knowledge that was not in evidence.
Finally, the last comment on which Mercado relies does not give us
pause: “[Gilberto] didn’t ask for this, but he came in and told you the truth.”
Mercado claims that the prosecutor was vouching for the credibility of
Gilberto, but that argument is not supported by the record or the context in
which the prosecutor made the statement. Gilberto was the victim of the
shooting. However, at trial, he testified that he did not remember anything
about the day he was shot. And Gilberto could not even identify Mercado at
16
trial. Instead, the prosecutor appeared to be emphasizing again that
Christian told the truth at trial, based upon the evidence presented:
“We have that young man helping him out, being a good
neighbor, driving him around unsuspecting, didn’t know
that the defendant had a gun, didn’t know that the
defendant was going to jump out of the car. He said that
the car was still moving when the defendant jumped out.
He didn’t know that the defendant was going to confront
[Gilberto], a person who he also doesn’t know, had these
words, and see the defendant shoot him.
“He didn’t ask for this. [Gilberto] didn’t ask for this, but he
came in and told you the truth.”
As the California Supreme Court stated in Boyette, supra, 29 Cal.4th at
page 433, “Although a prosecutor may not personally vouch for the credibility
of a witness, a prosecutor may properly argue a witness is telling the truth
based on the circumstances of the case. [Citation.] Here, although the
prosecutor argued [the witness] was credible, she did so in the context of his
being an eyewitness to the crime and argued that aspects of his testimony
suggested he was telling the truth. This was permissible argument.” As in
Boyette, the prosecutor’s comments here did not suggest she “was privy to
undisclosed information and thus constituted improper vouching for [the
witness’s] credibility. It was, instead, simply argument based on inferences
from the evidence presented.” (Ibid.) In short, the prosecutor’s arguments
regarding Christian’s credibility were tied to evidence in, and reasonable
inferences from, the record. There was no misconduct.
Because there was nothing improper about the prosecutor’s rebuttal
argument, Mercado cannot show that his attorney provided ineffective
assistance by failing to object to the prosecutor’s argument.
17
III. CUMULATIVE ERROR
Mercado also argues that the multiple alleged errors outlined ante
cumulatively require reversal. We disagree.
“ ‘[A] series of trial errors, though independently harmless, may in
some circumstances rise by accretion to the level of reversible and prejudicial
error.’ ” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) We have
rejected Mercado’s two asserted errors. Because there were no other actual
or assumed errors, much less a series of errors that warrants reversal, we
conclude there was no cumulative error. (See People v. Reed (2018)
4 Cal.5th 989, 1018 [“Because we have found but one error—which was
harmless—there is no prejudice to cumulate.”].)
IV. MOTION FOR ANCILLARY SERVICES
A. Mercado’s Contention
Mercado asserts the trial court abused its discretion and violated his
Sixth Amendment right to present a defense when it denied his motions for
ancillary funds to hire a legal runner and an investigator to assist with his
motion for a new trial. We are not persuaded that the trial court abused its
discretion.
B. Background
After the jury returned its verdict but before sentencing, Mercado
requested to represent himself. He offered the following explanation
regarding why:
“Because there’s certain evidence that I would like to enter
and the public defender’s office didn’t want to help me with
that matter. So I think I would―I’m better off doing it on
my own.”
In response to Mercado’s request, the trial court provided the necessary
admonitions and discussed the disadvantages of self-representation. The
18
court also expressed concern that Mercado was seeking to represent himself
out of frustration. Mercado replied:
“No. It’s just my main thing I’m going pro per is just to
pretty much subpoena the people that testified on me to
prove that it was a false witness who testified on me. And I
was getting no help with that from the public defender’s
office. They were just giving me the runaround on certain
things. So I would rather just get a private investigator
and bring those individuals in so that they can―so we can
find out the truth on the false witness that testified on me.”
Mercado also further emphasized that he was not frustrated with the
public defender’s office, explaining that “I’m telling them who was the one
that testified on me and they went and interviewed a whole other witness,
somebody who I didn’t even say was involved in it.”
The trial court then asked Mercado what he intended to do, considering
where his case was in the process. Mercado explained:
“Subpoena witnesses and just―pretty much what
happened, your Honor, was the victim’s brother was the
one who testified on me. And I was telling [defense
counsel] that, on what I know on that behalf, and she
wasn’t going, reaching out to them. She interviewed a
whole other brother who I never said was involved and
testified on me, and they haven’t went over there and
pretty much got to the bottom of that.
“So I would rather do it myself, subpoena witnesses and
just question them myself to find out what really happened
so that I can get a mistrial motion and process.”
The court ultimately accepted Mercado’s waiver to his right to counsel
and allowed him to represent himself. Per Mercado’s request, the court
scheduled the next hearing for 30 days later. The court asked Mercado what
he intended to do at the next hearing, to which Mercado responded as follows:
“To see―I’m still trying to figure this out as I go. I’ve never represented
19
myself, so what I’m trying to do is put motions and to subpoena people and
things of that nature.” The court told Mercado that it would not “help with
any of that” and made sure Mercado understood he would be sentenced at the
next hearing (January 6, 2023).
At the January 6 hearing, the court asked the parties if they were
ready to proceed with sentencing. The prosecutor responded in the
affirmative. The court and Mercado then engaged in the following exchange
about Mercado’s preparedness for sentencing:
“THE DEFENDANT: No. I actually need to waive some
time because I need a private investigator. I need the
Court to assign me a private investigator and I need a legal
runner.
“THE COURT: You need to file those documents. I can’t do
that for you.
“THE DEFENDANT: Yeah. That’s why I’m letting the
Court know that that’s what I need to do.
“THE COURT: That’s not how it works. You don’t just tell
me. What I need to do is go forward with sentencing here.
“THE DEFENDANT: I barely went pro per, and I need to
properly―I’m trying to put in a motion for a mistrial and I
can’t properly do that without having a private investigator
and a legal runner to assist me in those matters. So I
haven’t been able to get neither because I haven’t got a
private investigator to help me.
“THE COURT: I told you when you decided to go pro per
that I was not going to help you with any of these things.
“THE DEFENDANT: I’m not asking you to help me. I’m
telling you what I need.
“THE COURT: You’re the one that has to file motions for
those. [¶] Here’s what I’m going to do. I’m going to set
this out thirty days. If there are not motions filed by that
time we will be proceeding with sentencing. [¶] Come back
20
on February the 3rd at 8:30 in the morning for
pronouncement of judgment. And we will put that in the
minute order, the Court makes that representation. [¶] So
if you have things to do, you need to get them done.
Otherwise, we’re sentencing February 3rd.
“THE DEFENDANT: I can’t give no time for that? Before
that you guys were pressing my time forward and forward
and forward, and now I need a little bit more time to figure
this out and you guys want to hurry up and sentence me?
“THE COURT: It’s not about figuring it out. You decided
to represent yourself.
“THE DEFENDANT: Yes. I’m representing myself but I
need to gather certain things. What happened on my trial
was a false witness testified on the stand.
“THE COURT: We’re not going to talk about that.
“THE DEFENDANT: Why can’t we talk about that?
That’s what happened at trial.?
“THE COURT: You need to file a motion.
“THE DEFENDANT: I know, but―
“THE COURT: Mr. Mercado, we’re not going to argue. You
need to file it in a motion. I would not let an attorney stand
here and argue about what happened at the trial; therefore,
I am not letting you.
“THE DEFENDANT: I’m not arguing with you. I’m just
letting you know what happened and the motion that I
need to submit. I need to have it on record and you’re not
letting me talk.
“THE COURT: No, because it needs to be a written motion.
If you were an attorney you would know that a motion for
new trial would be written and not an oral motion. You’re
the one that does not have an attorney.
“THE DEFENDANT: You’re stopping me from taking on
my rights.
21
“THE COURT: You have to understand what I’m saying.
You are trying to make an oral motion. You cannot make
an oral motion for a new trial.
“THE DEFENDANT: Being a judge you’re going to let a
false witness testify?
“THE COURT: Sir, you are more than welcome to have an
attorney represent you. I am happy to reappoint one for
you right now.
“THE DEFENDANT: So because I’m representing myself
that’s the issue here?
“THE COURT: The issue is, you chose―
“THE DEFENDANT: I talked to my public defender and
they weren’t trying to assist me on these matters at all.
They said that they couldn’t help me on this false witness
that testified on the stand.
“THE COURT: I understand. The representation was
actually made.
“THE DEFENDANT: I had to go pro per so that I can help
myself, but in order to do that I need a private investigator
in order to get the evidence I need to submit the motion for
a mistrial.
“THE COURT: I hear all of this, and this is everything
that I told you was going to happen when you decided to
represent yourself.
“THE DEFENDANT: I know. And I need time to get it
together.
“THE COURT: Right. I’m giving you thirty days. If I don’t
see that you’ve made any progress in those thirty days―if
you have made progress we’ll talk about more time. If
we’re just here and you’re asking for more time and not
doing anything, we’re done and sentencing you. I would
give the same admonition to the attorney. [¶] I will see
you back on February 3rd.”
22
At the February 3, 2023 hearing, the court asked the parties if they
were ready to proceed with sentencing. Although the prosecutor indicated
that she was, Mercado said he was not ready and informed the court that he
had two motions to file: “One for a legal runner [motion for funds under
section 987.2], and one for the notice and motions for multiple punishment.”
Mercado also said that he was attempting to “get[] a private investigator” but
the ones he tried to contact would not return his call.
The trial court allowed Mercado to submit the motions at the
February 3 hearing. The court also ordered that Mercado be provided with
stamped envelopes to mail any additional motions to the court. However, the
court again advised Mercado that if no progress was made by the next
appearance then sentencing would proceed.
The court denied Mercado’s motion for funds under section 987.2 to hire
a legal runner because the motion did not comply with numerous sections of
the “Superior Court of California, County of San Bernardino, Penal
Code § 987.2 Appointed Service and Expenditure Rules, Funding Application
and Payment Procedure, rev. October 18, 2013.” In addition, the motion did
not comply with the court’s Local Rules 1418 and 1419. The order directed
Mercado to the specific rules and statutes relevant to Mercado’s motion that
could be found on the court’s website.
On February 23, 2023, Mercado filed a motion for funds to hire a
private investigator. The court denied this motion a day later because the
court found the motion did not comply with the court’s requirements as well
as various local rules.
At the March 3, 2023 hearing, Mercado again informed the court that
he still was not prepared to proceed with sentencing. He further pointed out
that he had, two weeks prior, filed a motion for funds to hire a private
23
investigator. The court noted that Mercado’s motions had been denied
“because [he] didn’t do them right.” The court further observed that it had
continued sentencing twice (once on January 6 and again on February 3) to
allow Mercado to file his motions. Mercado responded that he was
representing himself for the first time and needed “time to properly be able to
defend [him]self.” The court commented:
“You were told―when you decided you wanted to represent
yourself, you were told that there would be down sides to
this. You would be held to the standard of an attorney. If
any one of these attorneys in this courtroom was told this is
going forward at the next hearing, it would go forward at
the next hearing, and I gave you twice.”
The court then proceeded to sentence Mercado.
C. Legal Principles
An indigent defendant is entitled to the appointment of trial counsel
and is generally entitled to ancillary services that are reasonably necessary
in preparation of a defense. (Ake v. Oklahoma (1985) 470 U.S. 68, 76–77;
Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319 (Corenevsky ).)
A right to ancillary defense services will arise if the defendant “has
demonstrated the need for such services by reference to ‘ “the general lines of
inquiry he wishes to pursue, being as specific as possible.” ’ [Citations.]”
(Corenevsky, at p. 320, fn. omitted.) “Defendant also must establish a
likelihood that the evidence sought to be procured by the funds would be
admissible, as ‘ “there is no point in spending money to obtain inadmissible
evidence.” ’ ” (People v. Thomas (2023) 14 Cal.5th 327, 353, quoting People v.
Clark (2016) 63 Cal.4th 522, 631.)
The defendant’s motion “can be granted only if supported by a showing
that the investigative services are reasonably necessary.” (Corenevsky,
supra, 36 Cal.3d at p. 320.) The trial court’s order regarding such services is
24
reviewed for abuse of discretion. (Id. at p. 321.) “[A]n appellate court will
reverse such an order only when ‘the circumstances shown compelled the
[trial] court to exercise its discretion only in one way, namely, to grant the
motion.’ [Citation.]” (Id. at p. 323.)
D. Analysis
Here, Mercado claims that the trial court denied his two motions for
ancillary services because he did not file proper motions, but Mercado accuses
the court of “citing to non-existent subdivisions and paragraphs[.]” Not so.
In both its written orders, the court explicitly detailed what provisions of the
“Superior Court of California, County of San Bernadino, Penal Code § 987.2
Appointed Service and Expenditure Rules, Funding Application and Payment
Procedures” (Application Procedures) that Mercado did not comply with. And
both orders referred Mercado to the San Bernadino County Superior Court
website for the Application Procedures and other relevant Local Rules.
Here, Mercado does not claim that either of his motions satisfied the
requirements of the Application Procedures or that he did not have to comply
with those procedures. Rather, he argues that the court did not properly
view his motions with the “considerable liberality” caselaw requires. Yet, the
language on which Mercado relies does not apply to the circumstances before
us. In addressing a trial court’s consideration of a motion for ancillary
services, our high court observed:
“Although such motions can be granted only if supported by
a showing that the investigative services are reasonably
necessary [citation], it has been recognized that because of
the early stage at which the request typically arises, it will
often be difficult for counsel to demonstrate a clear need for
such funds. [Citation.] Therefore the trial court should, in
appropriate circumstances, ‘view with considerable
liberality a motion for such pre-trial assistance.’
[Citation.]” (Corenevsky, supra, 36 Cal.3d at p. 320.)
25
Thus, the basis for the “considerable liberality” language assumes that
a motion for ancillary funds occurs early in a case (i.e., before trial). That is
not the case here where Mercado is asking for funds after the jury rendered
its verdict and right before the court was to sentence him. We therefore see
no abuse of discretion in the trial court allegedly failing to consider Mercado’s
two motions with “considerable liberality.”4
Mercado also raises two other challenges to the court denying his
motions. First, he claims that there is no indication in the record that he was
served with the orders. Although we agree there are no proofs of service in
the record for the subject orders, we note that the court orally informed
Mercado that his motions had been denied because he had not completed
them properly. At that time, Mercado did not object or otherwise complain
that he did not receive the orders. Rather, he stated that he needed more
time because “it was the first time representing [him]self.” The court
reminded him that he chose to represent himself and had already had the
benefit of two continuances.
Second, although he acknowledges that the orders pointed him to the
court’s website where the Application Procedures were located, Mercado
asserts that there is no indication in the record that he had access to a
computer in jail by which to retrieve those procedures. However, there is no
suggestion that Mercado informed the court that he lacked access to a
computer. Further, as the People point out, Mercado’s motions appear to
4 Mercado has provided no authority, nor have we found any, that
supports his claim that he was entitled to ancillary services to file a motion
for new trial. It is at least arguable that Mercado did not have such a right.
However, because the People assume that Mercado may have been entitled to
the requested services, and we find, as we explain post, that Mercado has not
suffered prejudice, we need not decide this threshold issue.
26
have been drafted on a computer as they are on pleading paper and include
citations to the proper Penal Code section and relevant case law.
Moreover, even if we were to assume that the trial court abused its
discretion in denying Mercado’s motions for ancillary services, we are not
persuaded by Mercado’s argument that he was prejudiced by the denials.
(See People v. Guerra (2006) 37 Cal.4th 1067, 1086.) Here, Mercado argues
the ancillary services were necessary to file a motion for a new trial. Thus,
without those services, he claims he was prejudiced because he could not
prepare his desired motion. Underlying Mercado’s argument, however, is the
assumption that his motion for a new trial would be successful or at the very
least, possess some merit. After all, a defendant has not suffered prejudice if
he or she is somehow prohibited from filing a meritless motion.
Mercado’s proposed motion for a new trial appears to have been based
on the theory that a witness testified falsely against him. However, the
identity of this lying witness is unclear. When explaining to the court why he
wanted to represent himself, Mercado stated that he wanted to “[s]ubpoena
witnesses and just―pretty much what happened, your Honor, was the
victim’s brother was the one who testified on me.” Mercado then faulted his
trial attorney for interviewing “a whole other brother who [Mercado] never
said was involved and testified on me.” So, Mercado informed the court that
he wanted to “subpoena witnesses and just question them myself to find out
what really happened so that I can get a mistrial motion and process.”
Neither Mercado’s statements to the court nor his motions for ancillary
services shed any light on who Mercado believes testified falsely against him
and who he intended to subpoena.
Only four witnesses testified during trial: two members of law
enforcement, Christian, and Gilberto. Thus, the brother of the victim
27
(Gilberto) who Mercado claims testified against him did not testify at trial.
Mercado does not identify this brother in his motions for ancillary services or
at any hearing in the trial court. Indeed, the People and Mercado’s appellate
counsel do not agree regarding Mercado’s proposed target for his subpoena.
The People presume that Mercado “sought an investigator to interview a
witness to prove a trial witness, likely Christian, was lying.” Mercado’s
appellate attorney interprets the People’s argument as opining that Mercado
wanted to subpoena Christian. Mercado’s appellate attorney disagrees,
arguing that Mercado wanted to subpoena Gilberto.
It makes little sense that Mercado would seek to subpoena either
Christian or Gilberto, both of whom testified at trial and were subject to
cross-examination. Instead, Mercado makes a vague reference to “the
victim’s brother who testified on [him].” But as we discussed ante, Gilberto’s
brother, to the extent he has one, did not testify against Mercado. And there
is no indication in the briefs or the record of the identity of this mystery
witness that Mercado seeks. Without more information, it appears that
Mercado’s proposed motion relies on someone he believes might be able to
show that a witness at trial lied. On the record before us, Mercado’s new
trial theory rests on no more than speculation, which does not support a
claim of prejudice.
V. SENATE BILL 81
A. Mercado’s Contentions
Mercado raises two issues concerning Senate Bill 81, which amended
section 1385. First, he claims that the trial court was required to apply
Senate Bill 81 to his prior strikes. Second, he argues that the trial court
erred by not dismissing the firearm enhancement and at least one of the
prison priors. We are not persuaded.
28
B. Analysis
Whether Senate Bill 81’s amendments to section 1385 apply to prior
strike convictions is a question of statutory interpretation, which we review
de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694 (Tirado).)
Section 1385 governs a trial court’s discretion to dismiss various
elements of an action or sentence on its own motion. This includes the ability
to dismiss all or any portion of an action, including enhancements and prior
strikes. (§ 1385, subds. (a)−(c); People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 508.) Under section 1385, subdivision (a), the trial court
“may . . . in furtherance of justice, order an action to be dismissed.” This
authority includes the power to “strike or vacate an allegation or finding
under the Three Strikes law that a defendant has previously been convicted
of a serious and/or violent felony . . . .” (People v. Williams (1998) 17 Cal.4th
148, 158.)
Effective January 1, 2022, Senate Bill 81 added subdivision (c) to
section 1385 to give trial courts more discretion to strike sentence
enhancements under certain conditions. (See People v. Burke (2023)
89 Cal.App.5th 237, 242–243 (Burke).) As relevant here, section 1385,
subdivision (c) provides, in part: “(c)(1) Notwithstanding any other law, the
court shall dismiss an enhancement if it is in the furtherance of justice to do
so, except if dismissal of that enhancement is prohibited by any initiative
statute. [¶] (2) In exercising its discretion under this subdivision, the court
shall consider and afford great weight to evidence offered by the defendant to
prove that any of the mitigating circumstances in subparagraphs (A) to (I)
are present. Proof of the presence of one or more of these circumstances
weighs greatly in favor of dismissing the enhancement, unless the court finds
29
that dismissal of the enhancement would endanger public safety.”
(§ 1385, subd. (c)(1)−(2), as amended by Stats. 2021, ch. 721, § 1.)
In Burke, supra, 89 Cal.App.5th 237, our colleagues in the Third
Appellate District considered whether the changes enacted by Senate Bill 81
applied to prior strikes as well as enhancements. They concluded Senate
Bill 81 did not apply to strikes. In reaching that conclusion, the Burke court
explained that “[t]he term ‘enhancement’ has a well-established technical
meaning in California law,” specifically, that it is “ ‘ “an additional term of
imprisonment added to the base term.” ’ ” (Burke, at p. 243.) Meanwhile,
“[i]t is equally well established that the Three Strikes law is not an
enhancement; it is an alternative sentencing scheme for the current offense.”
(Ibid., citing Romero, supra, 13 Cal.4th at p. 527.) The court “presume[d] the
Legislature was aware of, and acquiesced in, both this established judicial
definition of enhancement and the distinction between an enhancement and
an alternative sentencing scheme such as the Three Strikes law.” (Burke, at
p. 243.) Therefore, because “[t]he Legislature did not otherwise define the
word ‘enhancement’ in section 1385,” and “the statutory language is clear and
unambiguous,” the court opted to follow that language without considering
any legislative history materials. (Id. at p. 243.)
We agree with Burke and conclude that “section 1385, subdivision (c)’s
provisions regarding enhancements do not apply to the Three Strikes law.”
(Burke, supra, 89 Cal.App.5th at p. 244.)
Mercado argues Burke was wrongly decided and urges us not to
follow it. We decline Mercado’s invitation. There is no split of authority on
this issue among the California Courts of Appeal post Burke.
The First District Court of Appeal, Division Five in People v. Olay
(2023) 98 Cal.App.5th 60 (Olay) more recently examined additional
30
arguments—based on section 1385, subdivision (c)(2)(G)—that were not
addressed by the Burke court. (Olay, at pp. 66−69.) In Olay, the court
analyzed the legislative history of Senate Bill 81 and found it supports the
conclusion that the Legislature intended “enhancement” to accord with its
accepted meaning. That court was “skeptical the Legislature would have
expressed an intent to reject the well-established legal meaning of
‘enhancement’ in such a roundabout manner by obliquely referencing
‘juvenile adjudications’ as one of the relevant mitigating circumstances” and
that “[t]he legislative history confirms the Legislature had no such intent.”
(Olay, at p. 67.) The court noted that the legislative history includes a
statement that “[a]n enhancement differs from an alternative penalty
scheme,” and “[t]he presumption created by this bill applies to enhancements,
but does not encompass alternative penalty schemes.” (Assem. Com. on
Public Safety, Analysis of Sen. Bill No. 81 (2021–2022 Reg. Sess.) as amended
Apr. 27, 2021, pp. 5−6.) “A more unambiguous statement of the Legislature’s
intent to adopt the legal meaning of enhancement for section 1385,
subdivision (c) can hardly be imagined.” (Olay, at p. 67.) Moreover
“subsequent history makes no reference whatsoever to the Three Strikes law
or any other alternative sentencing scheme.” (Id. at p. 68.)
Thus, the legislative history only reinforces that “enhancement” as
used in section 1385, subdivision (c), is not ambiguous. It is therefore not
warranted to resort to the canon against surplusage. “If the plain language
of a statute or regulation is clear and unambiguous, our task is at an end and
there is no need to resort to the canons of constructions or extrinsic aids to
interpretation.” (Butts v. Board of Trustees of California State University
(2014) 225 Cal.App.4th 825, 838.)
31
As noted ante, the Olay court “still agree[d] with Burke’s ultimate
conclusion—that section 1385, subdivision (c) does not apply to the Three
Strikes law.” (Olay, supra, 98 Cal.App.5th at p. 67.) We agree with the
holdings in Burke and Olay that section 1385, subdivision (c)’s provisions
regarding enhancements do not apply to the Three Strikes law. (Burke,
supra, 89 Cal.App.5th at p. 244; Olay, at p. 69; accord People v. Tilley (2023)
92 Cal.App.5th 772, 776, fn. 2.) As such, we conclude the trial court did not
err when it did not apply Senate Bill 81 to strike Mercado’s prior strikes.
Mercado’s next argument under Senate Bill 81 fares no better.
Mercado contends the trial court’s sentence in this case violates current
section 1385, subdivision (c)(2)(C) because the use of “shall” in that provision
mandates the dismissal of any enhancement that would result in a sentence
of over 20 years. We are not persuaded.
Section 1385 has long permitted trial courts to dismiss sentence
enhancements, or the additional punishment associated with such
enhancements, if doing so is in the furtherance of justice. (See former § 1385,
amended by Stats. 1986, ch. 85, § 2, eff. May 6, 1986.) As we discussed ante,
Senate Bill 81 amended section 1385 to not only grant trial courts the
authority, but to also impose a duty upon them to strike or dismiss certain
sentence enhancements when it is in the interest of justice to do so. As
relevant here, section 1385, subdivision (c) now states in pertinent part:
“(c)(1) Notwithstanding any other law, the court shall
dismiss an enhancement if it is in the furtherance of justice
to do so, except if dismissal of that enhancement is
prohibited by any initiative statute.
“(2) In exercising its discretion under this subdivision, the
court shall consider and afford great weight to evidence
offered by the defendant to prove that any of the mitigating
circumstances in subparagraphs (A) to (I) are present.
Proof of the presence of one or more of these circumstances
32
weighs greatly in favor of dismissing the enhancement,
unless the court finds that dismissal of the enhancement
would endanger public safety. ‘Endanger public safety’
means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other
serious danger to others.”
The statute outlines nine mitigating circumstances the court must
consider, including as relevant herein: “(C) The application of an
enhancement could result in a sentence of over 20 years. In this instance, the
enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(C).) Subdivision (c) of
section 1385 applies to all sentences occurring after its effective date.
(§ 1385, subd. (c)(7).)
“[O]ur first task in construing a statute is to ascertain the intent of the
Legislature so as to effectuate the purpose of the law. In determining such
intent, a court must look first to the words of the statute themselves, giving
to the language its usual, ordinary import and according significance, if
possible, to every word, phrase and sentence in pursuance of the legislative
purpose. A construction making some words surplusage is to be avoided.
The words of the statute must be construed in context, keeping in mind the
statutory purpose, and statutes or statutory sections relating to the same
subject must be harmonized, both internally and with each other, to the
extent possible.” (Dyna-Med, Inc. v. Fair Employment & Housing Com.
(1987) 43 Cal.3d 1379, 1386–1387.) As stated ante, we review questions of
statutory interpretation de novo. (Tirado, supra, 12 Cal.5th at p. 694.)
Two of our sister courts have persuasively concluded that the “shall be
dismissed” language in subdivision (c)(2)(C) of section 1385 does not require
the trial court to dismiss an enhancement if doing so would endanger public
safety. (People v. Lipscomb (2022) 87 Cal.App.5th 9, 17–21 (Lipscomb);
People v. Mendoza (2023) 88 Cal.App.5th 287, 295–297 (Mendoza).)
33
The appellate courts in both Lipscomb and Mendoza determined that
the language “the enhancement shall be dismissed” where “application of an
enhancement could result in a sentence of over 20 years” per section 1385,
subdivision (c)(2)(C), does not require the trial court to dismiss an
enhancement if doing so would endanger public safety. The Lipscomb court
understood it “cannot read [parts of the statute] in isolation” but “must
consider the statute as a whole.” (Lipscomb, supra, 87 Cal.App.5th at p. 18.)
In doing so, the circumstance “that the enhancement could produce a
sentence over 20 years . . . does not apply at all where the court finds that
striking the enhancement would endanger public safety.” (Ibid.) The court
determined that “[t]o the extent that the statute is ambiguous, indicators of
the Legislature’s intent support [this] reading” because the “versions of
[Senate Bill 81] confirm the Legislature’s intent that the trial court retain the
ability to impose an enhancement where failure to do so would endanger
public safety.” (Id. at pp. 18–19.) Following review of the various versions
considered by the Legislature in enacting Senate Bill 81, the Lipscomb court
concluded that “every version of the statute—including . . . the current one—
expressly empowered the court to impose the enhancement upon a finding
that dismissing it would endanger public safety.” (Lipscomb, at p. 19.)
In Mendoza, the appellate court noted that interpreting section 1385,
subdivision (c)(2)(C) as requiring dismissal of an enhancement “gives no
effect to the clause ‘unless the court finds that dismissal of the enhancement
would endanger public safety’ ” in section 1385, subdivision (c)(2). (Mendoza,
supra, 88 Cal.App.5th at p. 296.) The court recognized it must “avoid
interpretations that render statutory language surplusage” and “also must
avoid interpretations that lead to absurd results.” (Ibid.) Under the
defendant’s interpretation, “the statute required the sentencing court to
34
endanger public safety,” which the court found “cannot be what the
Legislature intended.” (Ibid., italics omitted.)
Although Mercado cites both Lipscomb and Mendoza, he does not
explain why we should not follow those cases. Nor does he attempt to
distinguish them whatsoever. Moreover, we believe Lipscomb and Mendoza
were correctly decided, and we follow them on the issue before us. Thus, we
conclude that section 1385, subdivision (c)(2)(C) does not require dismissal of
a sentencing enhancement where the trial court concludes dismissal would
not be in the furtherance of justice and/or would endanger public safety.
(§ 1385, subd. (c)(2).)
Nonetheless, Mercado essentially argues that even if we follow
Lipscomb and Mendoza, the trial court did not make the necessary
dangerousness finding. In this sense, he argues that the court did not realize
it had discretion to strike the subject enhancements under section 1385 and
thus we should remand the matter to allow the court to exercise its
discretion. We disagree.
Here, the trial court specifically acknowledged that it had discretion to
stay the 25-year firearm enhancement but declined to do so “because of the
high level of violence that was involved in this case.” So, although the court
did not make an explicit finding that dismissing the firearm enhancement
would endanger the public, the court clearly believed Mendoza’s crimes were
too violent to warrant a lesser sentence. As such, we struggle to contemplate
how an analysis under section 1385, subdivision (c)(2)(C) would have caused
the court to reach a contrary result. In other words, if the court found that
Mendoza’s crime was too violent to warrant a stay of the firearm
enhancement, it logically follows that it would not have determined that the
same enhancement should have been dismissed based on a different statute.
35
(Cf. People v. Walker (2024) 16 Cal.5th 1024, 1038.) In short, the record
clearly indicates that the trial court would have reached the same conclusion
even if it evaluated the enhancements under section 1385. Remand,
therefore, is not warranted.5 (See People v. Barber (2020) 55 Cal.App.5th
787, 814.)
VI. THE PRIOR STRIKE AND SERIOUS FELONY
A. Mercado’s Contention
Mercado asserts that the trial court’s true findings that his 2010
conviction for violating section 186.22, subdivision (a) qualified as a prior
strike and serious felony must be reversed and remanded because the
evidence presented was insufficient.
B. Background
The prosecution alleged that Mercado suffered a section 186.22,
subdivision (a) conviction on June 11, 2010, in San Bernardino Superior
Court case No. FSB903904 (case No. FSB903904). The amended information
alleged that this prior conviction qualified as a prior strike (§§ 667,
subds. (b)−(i), 1170.12, subds. (a)−(d)) and a serious felony (§ 667,
subd. (a)(1)).
At the bench trial on the prior convictions, the court stated:
“Reviewing Exhibit [21], this is a certified prior packet for
FSB903904. Contained within was a certified minute order
from June 11th, 2010 wherein the defendant pled guilty to
Count 7 of the indictment. Count 7 is Penal Code
5 We observe that Mercado argues that the trial court should have struck
one of his prison priors under section 1385, subdivision (c)(2)(C). Yet, the
prison prior resulted in an additional five-year sentence. Mercado does not
explain how that five-year sentence falls under the subject subdivision.
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Section 186.22(a) which does qualify as a serious felony
under Penal Code Section 1192.7.”6
The court then found that Mercado’s conviction under section 186.22,
subdivision (a) comprised a prior strike conviction.7
In addition, the indictment in case No. FSB903904 indicates that
Mercado was one of about 37 named defendants. Indeed, for count 7
(§ 186.22, subd. (a)), to which Mercado pleaded guilty, the indictment names
over 30 other defendants in addition to Mercado.
C. Analysis
Mercado challenges the trial court’s finding that his prior conviction for
violating section 186.22, subdivision (a) constituted a prior strike and a
serious felony for two reasons. First, he claims that his plea, standing alone,
does not prove that he committed a violation of section 186.22, subdivision (a)
as that crime was understood after Rodriguez, supra, 55 Cal.4th 1125. Thus,
he urges us to follow People v. Strike (2020) 45 Cal.App.5th 143 (Strike) and
conclude that his prior conviction under section 186.22, subdivision (a) cannot
constitute a prior strike or serious felony. Second, Mercado argues that the
trial court’s findings must be reversed because of changes in the law under
Assembly Bill 333.
1. Rodriguez and Strike
Mercado contends the trial court’s true findings on the prior strike and
serious felony allegation must be reversed because the evidence offered to
6 The trial court referred to the subject exhibit as Exhibit 20.
Apparently, the court misspoke. Exhibit 21 corresponds to case
No. FSB903904.
7 The trial court made a similar finding regarding another felony for
which Mercado had been convicted in a separate case. Because that
conviction is not challenged here, we do not address it further.
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prove his underlying 2010 conviction for active gang participation (§ 186.22,
subd. (a)) is insufficient to establish that he committed the offense with
another active member of his gang, as provided in Rodriguez, supra,
55 Cal.4th 1125. We agree.
“ ‘The People must prove all elements of an alleged sentence
enhancement beyond a reasonable doubt. [Citation.]’ [Citation.] In
identifying the facts proven by the existence of a prior conviction, ‘[t]he trial
court’s role is limited to determining the facts that were necessarily found in
the course of entering the conviction. To do more is to engage in “judicial
factfinding that goes far beyond the recognition of a prior conviction.’ ”
[Citation.] ‘On review, we examine the record in the light most favorable to
the judgment to ascertain whether it is supported by substantial evidence. In
other words, we determine whether a rational trier of fact could have found
that the prosecution sustained its burden of proving the elements of the
sentence enhancement beyond a reasonable doubt.’ [Citation.]” (People v.
Farias (2023) 92 Cal.App.5th 619, 641 (Farias).)8
Section 186.22, subdivision (a) makes it unlawful to “actively
participate[] in a criminal street gang with knowledge that its members
engage in, or have engaged in, a pattern of criminal gang activity, and [to]
willfully promote[], further[], or assist[] in felonious criminal conduct by
members of that gang.” Pursuant to section 1192.7, “any felony offense,
which would also constitute a felony violation of section 186.22,” qualifies as
8 The Supreme Court granted review of Farias, supra, 92 Cal.App.5th
619 on September 27, 2023, S281027, and deferred briefing pending
consideration and disposition of People v. Fletcher, S281282. The Supreme
Court dismissed the Farias petition after issuing its decision in Fletcher,
supra, 18 Cal.5th 576. Therefore, Farias, supra, 92 Cal.App.5th 619 remains
citable. (Cal. Rules of Court, rules 8.1105(e)(2) and 8.1115(e)(2).)
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both a prior serious felony and a prior strike offense. (See §§ 667,
subds. (d)(1), (e), 1192.7, subd. (c)(28).)
In 2012, our high court determined that section 186.22, subdivision (a)
is not violated when an active gang member commits a felony offense but acts
alone. (Rodriguez, supra, 55 Cal.4th at p. 1139.) In Strike, supra,
45 Cal.App.5th 143, our colleagues in Division Three of this court recognized
that 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.” (Strike, at p. 150.) In Farias, supra, 92 Cal.App.5th 619, the Third
Appellate District reached the same conclusion regarding section 667,
subdivision (a) prior serious felony allegations. (Farias, at pp. 647−648.)
The defendant in Strike pleaded guilty in 2007 to active gang
participation under section 186.22, subdivision (a). After he admitted the
prior conviction in a 2017 prosecution, the trial court found the admission
extended to the elements of section 186.22, subdivision (a) “as now
understood” based on the allegations in the 2007 charging document that a
codefendant was a member of the defendant’s gang. (Strike, supra,
45 Cal.App.5th at pp. 146–147.) Because the record did not show the
defendant had admitted the factual allegations contained in the 2007
charging document as part of his guilty plea, the court of appeal concluded
that the trial court had engaged in impermissible factfinding. (Id. at
pp. 152–153.) The court reasoned that the trial court had “ ‘invade[d] the
jury’s province by . . . mak[ing] disputed findings about “what a trial showed,
or a plea proceeding revealed, about the defendant’s underlying conduct.” ’ ”
(Id. at p. 152.) The matter was remanded for a new hearing on the prior
strike for the prosecution to demonstrate, based on the record of the 2007
proceeding, that the defendant’s guilty plea encompassed a relevant
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admission in light of Rodriguez’s clarification that the defendant must have
committed the offense with at least one other gang member.9 (Strike, at
p. 154.) A similar result was reached in Farias regarding a prior serious
felony conviction allegation for which there was no evidence offered to prove
the defendant had admitted committing the offense with another active
member of his gang. (Farias, supra, 92 Cal.App.5th at pp. 647−648.)
Here, the prosecution offered no evidence to prove Mercado acted with
another member of his gang in committing the section 186.22, subdivision (a)
offense upon which his prior strike and serious felony conviction allegations
are based. The prosecution introduced a certified prior conviction and
commitment packet, consisting of an indictment dated September 22, 2009,
and minute order dated June 11, 2010. Although the indictment is aimed at
37 named defendants (strongly suggesting that Mercado was not acting
alone), it is not clear from the minute order that Mercado incorporated or
agreed to any portion of the indictment in pleading guilty. Rather, the
minute order states that Mercado was informed of the elements of the charge,
a factual basis was established, and Mercado pleaded guilty. And because
this plea was entered before Rodriguez, we are left to guess whether Mercado
admitted to committing the subject felony with another gang member.
Therefore, the evidence is insufficient to prove the prior strike and serious
felony conviction allegation.
Because the evidence is insufficient to prove the truth of the prior
strike and serious felony conviction allegations, those findings must be
9 Division Three noted that the elements of felony gang participation in
section 186.22, subdivision (a) had not changed between the defendant’s prior
offense and current offense, but the judicial interpretation of those elements
had evolved. (Strike, supra, 45 Cal.App.5th at p. 146.)
40
reversed. The People, however, are entitled to retry the matter. (Strike,
supra, 45 Cal.App.5th at p. 154.) Accordingly, we shall reverse the prior
conviction finding as to the section 186.22, subdivision (a) violation, vacate
Mercado’s sentence, and remand for retrial of the prior conviction allegations
and resentencing.
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2. Assembly Bill 333
Mercado also contends the true findings on his prior conviction
allegation based on section 186.22, subdivision (a) must be reversed for
insufficient evidence and that the matter must be remanded for retrial of
those allegations pursuant to recent amendments to section 186.22, per
Assembly Bill 333, which went into effect after his sentencing.
“In 2021, the Legislature amended section 186.22 with the passage of
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), enacting
the STEP Forward Act of 2021. (Stats. 2021, ch. 699, § 1.) Among other
things, Assembly Bill 333 changed the elements of gang offenses and
enhancements by narrowing the definitions of ‘criminal street gang,’ ‘pattern
of criminal activity,’ and ‘what it means for an offense to have commonly
benefitted a street gang.’ ” (Fletcher, supra, 18 Cal.5th at p. 583.)
The Supreme Court held that Assembly Bill 333’s ameliorative
amendments to section 186.22 apply to a current determination of whether a
conviction based on section 186.22 qualifies as a prior serious felony
conviction for purposes of the Three Strikes law and prior serious felony
enhancements. (Fletcher, supra, 18 Cal.5th at pp. 583, 587, 605.) Where
there is no indication a defendant’s prior conviction was obtained under the
more stringent requirements of Assembly Bill 333, the proper remedy is
“reversal of the findings on these enhancements for retrial under the correct
law.” (Id. at p. 607.)
The parties agree remand is necessary in this case for retrial of the
allegations related to Mercado’s 2010 conviction for violating section 186.22,
subdivision (a).
DISPOSITION
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The trial court’s true findings on the prior strike and serious felony
allegations regarding Mercado’s 2010 conviction for violating section 186.22,
subdivision (a) are reversed, and Mercado’s sentence is vacated. We remand
the matter to the superior court for trial of the allegations for the challenged
prior conviction only (if the People choose to retry the matter). After the
retrial, the superior court is to resentence Mercado. If there is no retrial, the
court is to resentence Mercado consistent with this opinion. In all other
respects, the judgment is affirmed.
HUFFMAN, J.*
WE CONCUR:
CASTILLO, Acting P. J.
RUBIN, J.
* Retired Associate Justice of the Court of Appeal, Fourth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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