People v. Hiller

Filed 5/9/23

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

A165126

v.

NEIL THOMAS HILLER, (Del Norte County

Super. Ct. No. CRF21-9160)

Defendant and Appellant.

A jury convicted defendant Neil Thomas Hiller of second degree murder

and being a felon in possession of a firearm. The trial court found true a

number of enhancement allegations, including that defendant had suffered

convictions in the State of Washington for serious or violent felonies,

specifically robbery. On appeal, defendant contends that his earlier

convictions in Washington State do not qualify as serious or violent felonies

under California law; that the trial court erred in failing to instruct the jury

on the lesser included offense of involuntary manslaughter; that some of his

enhancements should have been dismissed or stricken; and that the sentence

for one of the offenses should have been stayed under Penal Code section

654.1

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this

*

opinion is certified for publication with the exception of sections I and III–VII

of the Discussion.

1 All undesignated statutory references are to the Penal Code.

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In the published portion of this opinion, we conclude that robbery

under Washington law does not require, as California law does, that the

defendant intends permanently to deprive another of personal property, and

that the trial court cannot supply this missing element of permanency by

construing facts recorded in a document supplying the factual basis for

defendant’s plea. We accordingly reverse the true findings regarding

defendant’s prior convictions of serious or violent felonies, vacate the

sentence, and remand the matter for further proceedings. We reject all but

one of defendant’s other challenges to his conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Killing

In the early morning hours of April 22, 2021, the Crescent City Police

Department and Del Norte County Sheriff’s Office received reports of a

gunshot and of someone lying in a road. Officers who responded to the scene

found Joseph Deford in the road. Deford briefly showed signs of life before

dying. He had a gunshot wound in his back. An autopsy revealed that the

bullet course was from back to front, slightly upward, and passed through his

heart, consistent with a path that would be expected if someone was running

away, leaning forward slightly.

II. Defendant’s Statements

In a surreptitiously taken recording, defendant acknowledged that he

killed Deford with a .22 caliber revolver. A .22 caliber bullet was found in the

residence where defendant was arrested.

Interviewed by a detective after his arrest, defendant admitted killing

Deford. He said he had taken four grams of methamphetamine and was

high. He went on, “I stopped, said, ‘What’s up?’ I said, ‘What’s up, fool?’ He

saw who it was, he ran, and I fired. That was it. I didn’t mean to hit him. I

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didn’t mean it. And we just took off.” Hiller said he and Deford had “issues”

in the past and that Deford ran away because he thought Hiller was going to

rob him. Hiller said he fired in the air and that he wanted to scare Deford.

He had a .22 revolver in his waistband. He said that would not have pulled

the gun out of his waistband if he had not been high and that he killed

Deford for no reason, but that he did not intend to kill Deford when he pulled

out his gun. He described the killing as an accident, saying the shot was

supposed to go over Deford’s head. When he realized he had shot Deford, he

and his companion “took off.” Afterward, he disposed of the gun in the ocean,

and it was never recovered.

III. Procedural History

Defendant was charged with murder (§ 187, subd. (a); count 1) and

possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). As to

count 1, the information alleged multiple firearm enhancements (§§ 12022.5,

subd. (a), 12022.53, subds. (b), (c), & (d)) and three prior serious or violent

felony convictions in the State of Washington (§ 1170.12, subd. (c)(2)), two of

which were separately alleged as serious felonies (§ 667, subd. (a)(1)). For

count 2, the information alleged enhancements for being armed with and

using a firearm (§§ 12022, subd. (a)(1), 12022.5, subd. (a)), and the same

three prior convictions. The jury convicted defendant on both counts; it also

found all the firearm enhancement allegations true, except that use of a

firearm (§ 12022.5, subd. (a)) on count 1 appears not to have been submitted

to the jury. In a bifurcated proceeding, the trial court found true the prior

conviction allegations.

Defendant moved for the trial court to exercise its discretion to strike

his “strike” priors. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

In anticipation of such a motion and in an effort to show that defendant

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lacked remorse and posed a risk to public safety, the District Attorney

submitted transcripts of recordings of phone calls defendant made while in

jail. In one, he told his girlfriend, “I don’t cry about killing this kid. I cry

that because I’m not gonna be there with you anymore.” In a second, he said,

“I love this life. . . . I love being a legend. I love being famous.” In a third, he

said he had pulled a gun on his mother in the past, and went on, “I’ll shoot

that bitch.” In a fourth, he insulted the victim’s family in vulgar terms and

spoke of his dislike of having them behind him in court, “sniffl[ing] and

cry[ing] and act[ing] like they’re . . . sad about this kid.”

On April 18, 2022, the trial court denied the Romero motion and

sentenced defendant to state prison for a total term of 116 years to life. On

count 1, the court designated an aggregate term of 80 years, calculated as 15

years to life for second degree murder, tripled under the Three Strikes law

(§ 1170.12, subd. (c)(2)(i); see § 667, subds. (b)–(i)); plus an additional 25

years to life for personal and intentional discharge of a firearm, causing great

bodily injury or death (§ 12022.53, subd. (d)); and two consecutive five-year

enhancements for prior serious felonies (§ 667, subd. (a)(1)). On count 2, the

aggregate term was 36 years, calculated as a consecutive 25 years to life for

possession of a firearm by a felon under the Three Strikes law, plus two

additional five-year terms for prior serious felonies (§ 667, subd. (a)(1)), and

one year for being armed with a firearm (§ 12022, subd. (a)(1)).2 Additional

2 The sentencing transcript refers to section 12022.5, subdivision (a)(1)

as the basis for the one-year enhancement. The parties agree that the actual

basis for this enhancement (as alleged in the information) is section 12022,

subdivision (a)(1), and that either the trial court misspoke or the court

reporter made a clerical error in transcription. As discussed below, they also

agree the enhancement was erroneously imposed. Section 12022.5,

subdivision (a) is the basis for a separate 10-year enhancement, which the

trial court stayed.

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enhancements, including a 10-year enhancement for personal use of a

firearm in connection with count 2 (§ 12022.5, subd. (a)), were imposed and

stayed.

DISCUSSION

I. Lesser Included Offense

Defendant contends the trial court erred in neglecting to instruct the

jury sua sponte on the lesser included offense of involuntary manslaughter.

The standards we apply to such a contention are well settled. A trial

court has a sua sponte duty to instruct on a lesser included offense “if there is

substantial evidence the defendant is guilty only of the lesser.” (People v.

Birks (1998) 19 Cal.4th 108, 118.) The purpose of this rule is to ensure “ ‘the

most accurate possible verdict encompassed by the charge and supported by

the evidence.’ [Citation.] In light of this purpose, the court need instruct the

jury on a lesser included offense only ‘[w]hen there is substantial evidence

that an element of the charged offense is missing, but that the accused is

guilty of’ the lesser offense.” (People v. Shockley (2013) 58 Cal.4th 400, 403–

404.) The substantial evidence standard “is not satisfied by ‘ “any evidence

. . . no matter how weak,” ’ but rather by evidence from which a jury

composed of reasonable persons could conclude ‘that the lesser offense, but

not the greater, was committed.’ ” (People v. Avila (2009) 46 Cal.4th 680,

705.) We review this claim de novo. (People v. Licas (2007) 41 Cal.4th 362,

366.)

Manslaughter is “the unlawful killing of a human being without

malice.” (§ 192.) Involuntary manslaughter is an unlawful killing “in the

commission of an unlawful act, not amounting to a felony; or in the

commission of a lawful act which might produce death, in an unlawful

manner, or without due caution and circumspection.” (§ 192, subd. (b).) Case

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law has construed involuntary manslaughter to include “an unlawful killing

in the course of an inherently dangerous assaultive felony without malice.”

(People v. Brothers (2015) 236 Cal.App.4th 24, 33–34 (Brothers).) Involuntary

manslaughter is ordinarily a lesser included offense of murder. (People v.

Ochoa (1998) 19 Cal.4th 353, 422.)

Malice is implied when a killing “resulted from an intentional act, the

natural consequences of which are dangerous to human life, performed with

knowledge of and conscious disregard for the danger to human life.” (People

v. Thomas (2012) 53 Cal.4th 771, 814.) For instance, malice may be implied

where a defendant brandishes a weapon and unintentionally shoots, if the

jury concludes the act was dangerous to human life and the defendant acted

in conscious disregard for life, or where a person points a loaded gun at a

victim and threatens to shoot. (Id. at pp. 814–815.)

Defendant contends his statement to police that he intended only to

shoot in the air and scare Deford would support a finding that he did not act

with implied malice, that is, with a conscious disregard for human life. We

disagree. There can be no doubt that the natural consequences of the act of

shooting a loaded gun toward a person are dangerous to human life. And,

even crediting defendant’s statement that he sought only to frighten Deford

and wanted the bullet to pass over him, there is no evidence that would

reasonably support a finding he did not subjectively realize the danger posed

by shooting in Deford’s direction. Because there was no substantial evidence

defendant acted without malice, the trial court was not obligated to instruct

the jury sua sponte on involuntary manslaughter. (See Brothers, supra, 236

Cal.App.4th at p. 35.)

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II. Prior Felonies in Washington State

Defendant contends the evidence does not support the trial court’s

finding that his prior convictions in the State of Washington qualified as

serious or violent felonies under California law for purposes of sentencing

him under the Three Strikes law and imposing two five-year enhancements

under section 667, subdivision (a). He bases this argument on the contention,

conceded by the Attorney General, that the elements of the offense of robbery

in Washington are broader than those of the same offense in California.

Robbery in California is defined as “the felonious taking of personal property

in the possession of another, from his person or immediate presence, and

against his will, accomplished by means of force or fear.” (§ 211.)

Importantly, California law requires an intent to deprive the victim of

property permanently. (People v. Bacon (2010) 50 Cal.4th 1082, 1117.)

This is the element lacking in Washington’s definition of robbery. The

applicable Washington statute defines robbery as being committed when one

“unlawfully takes personal property from the person of another or in his or

her presence against his or her will by the use or threatened use of

immediate force, violence, or fear of injury to that person or his or her

property or the person or property of anyone.” (Wn. Rev. Code § 9A.56.190.)3

An implied element of robbery is the intent to commit theft (State v. Kjorsvik

(1991) 117 Wn.2d 93, 98), but Washington law does not include an intent to

deprive the victim of property permanently as an element of theft or, by

extension, of robbery.4 (State v. Komok (1989) 113 Wn.2d 810, 816–817

The statute was amended to make it gender-neutral in 2011. (2011

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Wn. Sess. Laws 2299.)

4The Attorney General points to one decision of a Washington

appellate court, State v. Ralph (2013) 175 Wn.App. 814, 824, that states the

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[theft]; State v. Milojevich (Wn.Ct.App. Mar. 9, 2009, No. 61707-9-1) 2009

Wash.App. Lexis 571, p. *5;5 State v. Martinez (Wn.Ct.App. Aug. 13, 2012,

No. 65950-2-1) 2012 Wash.App. Lexis 1917, p. *12 & fn. 36 [citing Komok,

“[i]ntent to permanently deprive is not an element of the crime of robbery”];

see also People v. Riel (2000) 22 Cal.4th 1153, 1205–1206 [Komok interprets

theft statute as no longer requiring permanent deprivation].) As a result, one

may be convicted of robbery in Washington for conduct that would not be

robbery under California law, and, defendant contends, for his prior

convictions there was neither a finding beyond a reasonable doubt nor an

admission that his conduct satisfied all elements of the crime of robbery in

California. (See People v. Gallardo (2017) 4 Cal.5th 120, 136 (Gallardo).) As

we shall explain, this point is well taken.

A. Additional Procedural Background

1. Washington Offenses

In pleading guilty in 2008 to two counts of robbery in Washington,

defendant stated he did not believe he was guilty, but he agreed there was a

crime of robbery includes the nonstatutory element of the specific intent to

steal, which in turn is the equivalent of the specific intent to deprive the

victim of property permanently. But the Attorney General acknowledges

that this statement of the appellate court appears to be based on a

misreading of two cases of the Washington Supreme Court, State v. Sublett

(2012) 176 Wn.2d 58, 88, and In re Pers. Restraint of Lavery (2005) 154 Wn.2d

249, 255, both of which held the crime of robbery in Washington includes the

nonstatutory element of a specific intent to steal, but neither of which said

the intent to deprive the victim of possession permanently was an element of

the offense.

5 Courts in other states may cite unpublished decisions of Washington

courts, although such decisions have no precedential value. (Wn. R. Gen.

Application 14.1(a) & (b).)

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substantial likelihood of conviction and wished to take advantage of a plea

offer.6 In pleading guilty in 2013 to another robbery in Washington,

defendant said he entered the plea in order to take advantage of plea

negotiations, and he acknowledged there were sufficient facts for a

substantial likelihood of conviction if he proceeded to trial. In connection

with all three offenses, he agreed the court could review the police reports

and/or a statement of probable cause supplied by the prosecution to establish

a factual basis for the plea.

As to the two 2008 convictions, the declaration of probable cause said

that defendant and two other people confronted two teenagers and demanded

their bicycles, the contents of their pockets, and the gloves one of the victims

was wearing. Defendant took the gloves. Throughout the event, defendant

had his hand in his pocket and made a clicking sound, as if he had a gun. He

told the victims to cooperate or he would have to “ ‘take this out and use it.’ ”

Officers found the three perpetrators nearby and detained them, the victims’

property still in their possession. Defendant told police one of the victims

had been insulting him, which prompted him to ask for the gloves; he said

that victim handed them over voluntarily and did not ask for them back. For

the 2013 conviction, the declaration of probable cause explained that

defendant was confronted by a loss prevention officer after shoplifting items

from a Safeway store. He pulled out a knife and tried to stab the officer then

6 The plea form stated “Alford/Newton Plea,” a reference to North

Carolina v. Alford (1970) 400 U.S. 25, which holds that a defendant may take

advantage of a plea agreement without admitting guilt, and State v. Newton

(1976) 87 Wn.2d 363, 370–371 (Newton), which allows such a procedure

under Washington law if a factual basis for the plea can nonetheless be

established.

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fled on foot, again trying to stab the officer chasing him, until deputies

caught and arrested him.

ii. Findings in Current Case

The trial court found true the allegations that defendant had been

convicted of three serious or violent felonies in Washington. These offenses

were used to treat his current offenses as third strikes (§§ 667, subds. (b)–

(j), 1170.12) and to impose two five-year enhancements under section 667,

subdivision (a)(1). The Three Strikes law applies if a defendant has suffered

a conviction of an offense in another jurisdiction that includes all the

elements of a serious or violent felony in California. (§§ 667, subds. (a)(1),

(d)(2), 1170.12, subd. (b)(2).) The section 667, subdivision (a)(1)

enhancements apply if a conviction in another jurisdiction includes all the

elements of any serious felony.

B. Forfeiture

As a threshold matter, the Attorney General contends defendant

forfeited his challenge by failing to raise his constitutional objection to the

trial court’s consideration of his records of conviction to determine whether

the Washington priors were serious or violent felonies. He is correct that, “as

a general rule, ‘the failure to object to errors committed at trial relieves the

reviewing court of the obligation to consider those errors on appeal,’ ” and

that this rule applies to claims of violations of constitutional rights. (In re

Seaton (2004) 34 Cal.4th 193, 198.) Defendant argues that if the claim is

forfeited, his counsel provided ineffective assistance in failing to raise it.

During the hearing on the prior convictions, defendant argued that the

People’s evidence did not show that the conduct underlying his robbery

convictions in Washington also qualified as robbery in California. He did not,

however, raise the issue again at the sentencing hearing or show that the

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offense of robbery in Washington lacked an element necessary for robbery

under California law, and he did not couch his argument in terms of the Sixth

Amendment or the rule of Gallardo, which we discuss in detail below.

We will not treat defendant’s claim as forfeited. First, he frames his

argument as a challenge to the sufficiency of the evidence to support the

findings that the Washington robberies were serious or violent felonies. Not

only did defendant raise this contention at least once in the trial court, but a

challenge to the sufficiency of the evidence is generally not subject to

forfeiture. (People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.) As our

Supreme Court explains, a defendant cannot forfeit “his right to challenge the

sufficiency of the evidence on which [a strike] allegation was found true until

it was found true and, then, only by failing to file a timely notice of appeal.”

(People v. Rodriguez (1998) 17 Cal.4th 253, 262.) In any event, we have

discretion to reach forfeited claims. (People v. Smith (2003) 31 Cal.4th 1207,

1215 [appellate court has discretion from reaching forfeited claims]; People v.

Williams (1998) 17 Cal.4th 148, 162–162, fn. 6.) To the extent defendant did

not preserve the precise constitutional claims he raises here, in the interest of

justice we exercise our discretion to consider them nevertheless. We

therefore need not address defendant’s contention that his counsel rendered

ineffective assistance in failing to make the argument below that he now

makes on appeal.

C. Analysis

The People must prove every element of a sentence enhancement

beyond a reasonable doubt. (People v. Miles (2008) 43 Cal.4th 1074, 1082.)

This includes the duty to prove the prior conviction is a serious or violent

felony. (People v. Frierson (2017) 4 Cal.5th 225, 233 (Frierson).) Where the

prior conviction is based on a guilty plea, the prosecution must prove the

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defendant admitted all elements of the California offense. (People v. Strike

(2020) 45 Cal.App.5th 143, 150 (Strike).) If the mere fact of a conviction does

not prove the offense was a qualifying felony, admissible evidence from the

record of conviction, including certified documents from the prior proceeding,

may be examined to resolve the issue. (Miles, at p. 1082.)

This inquiry is constrained by the protections of the Sixth Amendment,

an issue explored at length by our high court in Gallardo. The defendant in

Gallardo, like defendant here, had, based on a guilty plea, suffered a prior

conviction whose definition was broader than the definition of a “ ‘serious

felony.’ ” (Gallardo, supra, 4 Cal.5th at pp. 123, 136.) Specifically, the prior

conviction was for assault with a deadly weapon or with force likely to

produce great bodily injury, a conviction that would qualify as a serious

felony only if it were committed with a deadly weapon. (Id. at p. 136; former

§ 245, subd. (a); § 1192.7, subd. (c)(31).)

The question in Gallardo was whether the trial court acted properly in

reviewing the transcript of the preliminary hearing in the assault case to

determine that the defendant used a deadly weapon in committing the

assault. (Gallardo, supra, 4 Cal.5th at p. 123.) The transcript showed that

the victim testified that the defendant had tried to frighten her with a knife,

pushed her, and punched her. (Id. at p. 126.)

Our high court noted that in an earlier case it had held that the Sixth

Amendment permits courts to review the record of a prior conviction to

determine whether it is a serious felony for purposes of sentencing laws, but

that the inquiry is a “ ‘limited one’ that ‘focus[es] on the elements of the

offense of which the defendant was convicted.’ ” (Id. at p. 124, citing People v.

McGee (2006) 38 Cal.4th 682, 706.) According to the court in McGee, in

carrying out this inquiry the trial court could properly review the record to

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determine whether “the conviction realistically may have been based on

conduct that would not constitute a serious felony under California law.”

(McGee, at p. 706.) In Gallardo, the court reconsidered this holding and

disapproved McGee to the extent the case suggested it is constitutionally

permissible for the sentencing court to find a disputed fact about the conduct

underlying the earlier conviction that was not established by virtue of the

conviction itself. (Gallardo, supra, 4 Cal.5th at p. 125.)

Gallardo’s reasoning and holding are based on cases from the United

States Supreme Court applying this rule: “ ‘The Sixth Amendment

contemplates that a jury—not a sentencing court—will find’ the facts giving

rise to a conviction, when those facts lead to the imposition of additional

punishment under a recidivist sentencing scheme.” (Gallardo, supra,

4 Cal.5th at p. 134, quoting Descamps v. United States (2013) 570 U.S. 254,

269 (Descamps).) In Descamps, the Supreme Court explained that there are

two permissible approaches to determining whether a prior offense qualifies

to enhance a sentence under a federal statute, the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(e). One is the “ ‘categorical approach,’ ” which

compares the elements of the statute forming the basis of the prior

defendant’s conviction with the elements of the generic crime that serves as

the basis for the enhancement. (Descamps, at p. 257.) The prior conviction

may be used to enhance the current sentence only if its elements “are the

same as, or narrower than, those of the generic offense.” (Ibid.) The other

approach, the “ ‘modified categorical approach,’ ” may be used when the prior

conviction is for a “ ‘divisible statute,’ ” which “sets out one or more elements

of the offense in the alternative—for example, stating that burglary involves

entry into a building or an automobile.” (Ibid., italics omitted.) In that case,

the sentencing court may “consult a limited class of documents, such as

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indictments and jury instructions, to determine which alternative formed the

basis of the defendant’s prior conviction,” before “compar[ing] the elements of

the crime of conviction (including the alternative element used in the case)

with the elements of the generic crime.” (Ibid.) Where, on the other hand,

the prior conviction was under an “ ‘indivisible’ statute—i.e., one not

containing alternative elements—that criminalizes a broader swath of

conduct than the relevant generic offense,” use of the modified categorical

approach is impermissible. (Id. at p. 258.) That is, the sentencing court may

not properly “decide, based on information about a case’s underlying facts,

that the defendant’s prior conviction qualifies as an ACCA predicate even

though the elements of the crime fail to satisfy [the] categorical test.”

(Descamps, at p. 258.)

Although Descamps was interpretating a federal statute, the Supreme

Court explained that the categorical approach is underpinned by the Sixth

Amendment, which “contemplates that a jury—not a sentencing court—will

find such facts, unanimously and beyond a reasonable doubt. And the only

facts the court can be sure the jury so found are those constituting elements

of the offense—as distinct from amplifying but legally extraneous

circumstances.” (Descamps, supra, 570 U.S. at pp. 269–270.) The court went

on to state that similarly, “when a defendant pleads guilty to a crime, he

waives his right to a jury determination of only that offense’s elements;

whatever he says, or fails to say, about superfluous facts cannot license a

later sentencing court to impose extra punishment.” (Id. at p. 270, citing

Shepard v. United States (2005) 544 U.S. 13, 24–26.)

Three years later, in Mathis v. United States (2016) 579 U.S. 500, 503,

the Supreme Court reprised this theme. It explained that a sentencing court

“can do no more, consistent with the Sixth Amendment, than determine what

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crime, with what elements, the defendant was convicted of.” (Id. at pp. 511–

512.) The court may not make “a disputed determination about ‘what the

defendant and [prior] judge must have understood as the factual basis of the

prior plea.’ ” (Id. at p. 511.)

The court in Gallardo reviewed these authorities, acknowledging that

they were decided on statutory grounds but explaining that the Supreme

Court’s interpretation of the statute in question “was informed by an

understanding of certain basic, background Sixth Amendment principles, and

the court’s explication of those principles was both considered and

unequivocal: The jury trial right is violated when a court adds extra

punishment based on factfinding that goes ‘beyond merely identifying a prior

conviction’ by ‘try[ing] to discern what a trial showed, or a plea proceeding

revealed, about the defendant’s underlying conduct.’ ” (Gallardo, supra,

4 Cal.5th at pp. 134–135.) These principles apply to California adjudications

as well, although California courts are concededly not “constitutionally

compelled to emulate the [United States Supreme Court’s] version of the

categorical approach in all of its particulars.” (Id. at p. 135.) Under these

principles, when an enhancement relies on a finding regarding the

defendant’s conduct, but the jury did not make that finding and the

defendant did not admit that fact, the defendant’s Sixth Amendment rights

are violated. (Ibid.)

Applying these principles, our high court held that “a court considering

whether to impose an increased sentence based on a prior qualifying

conviction may not determine the ‘nature or basis’ of the prior conviction

based on its independent conclusions about what facts of conduct

‘realistically’ supported the conviction. . . . The court’s role is, rather, limited

to identifying those facts that were established by virtue of the conviction

15

itself—that is, facts the jury was necessarily required to find to render a

guilty verdict, or that the defendant admitted as the factual basis for a guilty

plea.” (Gallardo, supra, 4 Cal.5th at p. 136.) Based on this rule, the trial

court in Gallardo erred in relying on the preliminary hearing transcript to

determine the basis of the defendant’s prior conviction. (Id. at p.137.) The

defendant there did not specify that she used a deadly weapon when entering

her guilty plea, nothing in the record showed she adopted the preliminary

hearing testimony as supplying the factual basis for her plea, and the

sentencing court could know neither whether a jury would have credited the

victim’s testimony nor whether by pleading guilty the defendant

acknowledged the truth of the testimony that she used a knife. (Id. at

p. 136.) The court therefore remanded the matter to permit the trial court to

determine what facts the defendant admitted in entering her plea under the

correct standards. (Id. at pp. 137–140.)

Following Gallardo, the court in Strike, supra, 45 Cal.App.5th at

pages 152–153, concluded that a defendant’s guilty plea to participation in a

street gang (§ 186.22) did not mean that he admitted to the factual

allegations contained in the charging document, which included factual

allegations beyond those then required for commission of the offense. (See

People v. Hudson (2018) 28 Cal.App.5th 196, 203, 208–209 [although

information stated pipe was used as deadly weapon and there was evidence of

it in the preliminary hearing transcript, record was silent on whether

defendant pled to assault based on great bodily injury, use of deadly weapon,

or both].)

Defendant argues that Gallardo should be read restrictively, in

conjunction with Decamps, to allow a sentencing court to consider only the

elements of the prior offense, and to prohibit consideration of any additional

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facts a defendant might have admitted in entering a guilty plea. This

argument founders on Gallardo, which indicates that the admissions a

defendant made in entering a guilty plea may also properly be used in

considering the effect of a prior conviction (Gallardo, supra, 4 Cal.5th at

pp. 137–140; see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d

450, 455 [we are bound by high court’s rulings]).

Alternatively, defendant argues that, even if the court may look to facts

admitted during the plea, the evidence does not show his Washington

robberies are serious or violent felonies in California. This argument fares

better. Defendant admitted the elements of the Washington robberies

through his guilty pleas, but the record before us does not contain any direct

admissions of additional facts that would make the robberies serious or

violent felonies in California.

The Attorney General argues that the declarations of probable cause,

which defendant agreed the trial court could review to establish a factual

basis for his plea, show unambiguously that defendant intended to deprive

his victims of their property permanently, and the trial court could therefore

treat the Washington convictions as serious or violent felonies for purposes of

California law. The Attorney General points to language in Gallardo where,

in concluding the trial court could not properly look to the preliminary

hearing transcript to determine that a prior offense was a strike, the high

court noted that “[n]othing in the record shows that defendant adopted the

preliminary hearing testimony as supplying the factual basis for her guilty

plea.” (Gallardo, supra, 4 Cal.5th at p. 136.) In contrast, defendant here

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adopted the statements of probable cause for the factual basis and is bound

by their contents, the Attorney General argues. We are not persuaded.

Under Washington law, the requirement of a factual basis means not

that the trial court must be convinced of the defendant’s guilt beyond a

reasonable doubt, but only that there must be a prima facie case—enough

evidence for a jury to conclude a defendant is guilty. (Newton, supra, 87

Wn.2d at pp. 369–370.) And if a defendant wishes to plead guilty while

refusing to admit guilt, the trial court may accept the plea if a factual basis

can nevertheless be established through other evidence, such as witness

affidavits or the prosecutor’s statement. (Id. at pp. 370–371; see In re Pers.

Restraint of Cross (2013) 178 Wn.2d 519, 525–526.) Although defendant

admitted the elements of the offense in pleading guilty to it and agreed the

court could look to the declarations of probable cause to find a factual basis,

there is no indication in this record that he admitted the truth of any

statements in the declarations of probable cause.

Courts have consistently differentiated between an admission that a

document or recitation contains a factual basis for a plea and an admission

that statements in that document or recitation are true. (See People v. Saez

(2015) 237 Cal.App.4th 1177, 1194–1195, 1206–1208 [by pleading guilty the

defendant admitted elements of crime, but stipulating to the complaint as

factual basis did not constitute admission to additional facts in complaint];

People v. French (2008) 43 Cal.4th 36, 51 [defense counsel’s statement that

witnesses would testify consistent with prosecutor’s recitation of factual basis

was not stipulation that recitation was correct]; People v. Rivera (2021) 62

Cal.App.5th 217, 235 [stipulation to grand jury transcript as factual basis is

not admission of truth of evidence in the transcript]; see also People v. Flores

(2022) 76 Cal.App.5th 974, 991 [defendant’s stipulation that a preliminary

18

hearing “transcript provided a factual basis for the plea is not a ‘ “binding

admission for all purposes” ’ ”].) Defendant thus did not admit facts beyond

the elements of the crime of robbery in Washington, as is necessary to make

the crime a serious or violent felony in California.

Moreover, our high court has cautioned that sentencing courts “may not

determine the ‘nature or basis’ ” of a prior conviction through their own

“conclusions about what facts or conduct ‘realistically’ supported the

conviction.” (Gallardo, supra, 4 Cal.5th at p. 136.) Even if defendant had

admitted to the factual allegations in the probable cause declarations, those

allegations do not conclusively establish—although they strongly suggest—

his intent to keep the property. Defendant neither admitted such an intent,

nor did a jury find it beyond a reasonable doubt, and we conclude that under

Gallardo, the sentencing court may not infer such intent in order to impose a

sentencing enhancement, no matter how strongly the facts would support

such an inference. Because no jury found—and nothing in this record shows

defendant admitted—that he intended permanently to deprive his victims of

their property, the trial court erred in treating the Washington robberies as

serious or violent felonies for purposes of California law.

D. Remedy

The question of remedy remains. In Strike, after concluding the

defendant had not admitted to factual allegations in a charging document

that were necessary to support a gang enhancement, the appellate court

noted that a prior-conviction allegation may be retried when a true finding is

reversed. It vacated the sentence and remanded for further proceedings in

which, for instance, the prosecution might be able to provide a transcript of

the plea proceedings or other documentation that could show what the

defendant admitted in tendering his guilty plea. (Strike, supra, 45

19

Cal.App.5th at p. 154; see Gallardo, supra, 4 Cal.5th at p. 139 [remanding

case to allow People to demonstrate, “based on the record of the prior plea

proceedings, that defendant’s guilty plea encompassed a relevant admission

about the nature of her crime”]; People v. Barragan (2004) 32 Cal.4th 236,

239 [retrial of strike allegation permissible when appellate court reverses

finding for insufficient evidence].) The same is appropriate here. We shall

remand the matter for a new hearing on the prior convictions and

resentencing, at which the People may present evidence of any admissions

made by defendant when he entered his guilty pleas.

The remainder of defendant’s challenges are to sentencing decisions the

trial court made. Although we do not know whether the court will again find

the Washington robberies qualify as serious or violent felonies under

California law, and we cannot know how the court will exercise its discretion

in resentencing, we briefly consider these challenges for the guidance of the

trial court on remand.

III. Mitigating Factors Under Section 1385

Defendant contends section 1385 required the trial court to dismiss the

enhancements, and that it erred in declining to do so. This argument

requires us to construe amendments to section 1385 that took effect shortly

before Hiller was sentenced.7

As amended, section 1385 provides that unless prohibited by an

initiative statute, a court “shall dismiss an enhancement if it is in the

furtherance of justice to do so.” (§ 1385, subd. (c)(1).) “In exercising its

7 The amendments at issue were enacted in 2021, effective January 1,

2022, and added subdivision (c) to section 1385. (Sen. Bill No. 81,

Stats. 2021, ch. 721, § 1.) Further amendments to the statute, enacted in

2022, do not affect the substance of the provisions at issue in this case.

(Stats. 2022, ch. 58, § 15.)

20

discretion” under the amended statute, the court is directed to “consider and

afford great weight” to evidence of any of several mitigating circumstances,

proof of which “weighs greatly in favor of dismissing the enhancement, unless

the court finds that dismissal of the enhancement would endanger public

safety.” (§ 1385, subd. (c)(2).)

Two of the mitigating circumstances are at issue here. One exists when

“[m]ultiple enhancements are alleged in a single case. In this instance, all

enhancements beyond a single enhancement shall be dismissed.” (§ 1385,

subd. (c)(2)(B), italics added.) Another exists when “[t]he 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), italics added.)

Defendant contends the italicized language means that if one of these

circumstances exists, the trial court in fact has no discretion; it must dismiss

the enhancement whether or not doing so would endanger public safety. We

review this question of statutory interpretation de novo. (See Walker v.

Superior Court (2021) 12 Cal.5th 177, 194.) We seek to determine the

Legislature’s intent, looking first to the statutory language and considering it

in light of the entire substance of the statute and seeking to harmonize the

various parts of an enactment. (People v. Mendoza (2023) 88 Cal.App.5th

287, 294 (Mendoza).)

Read in isolation, the unequivocal language upon which defendant

relies—that the enhancements “shall be dismissed”—could lead to the result

he seeks (§ 1385, subd. (c)(2)(B) & (C)), but viewing the language in light of

the entire statute, defendant’s construction fails. (Mendoza, supra, 88

Cal.App.5th at p. 294.) The court in Mendoza recently rejected the argument

defendant makes here, and held that a court need not consider the mitigating

factors in subdivision (c)(2) of section 1385, if it finds that dismissal of an

21

enhancement would endanger public safety. (Mendoza, at p. 297.) Mendoza

looked first to the general language of section 1385, subdivision (c)(2),

providing that “[i]n exercising its discretion under this subdivision” the court

must consider the listed mitigating factors in determining whether to dismiss

an enhancement “ ‘unless the court finds that dismissal of the enhancement

would endanger public safety.’ ” (Mendoza, at p. 296.) This language, the

court concluded, means that “if the court finds that dismissal of an

enhancement ‘would endanger public safety,’ then the court need not consider

the listed mitigated circumstances.” (Ibid.) Bolstering this conclusion, the

court noted that if dismissal of an enhancement “ ‘would endanger public

safety,’ (§ 1385[, subd. ](c)(2)), then it is difficult to imagine the circumstances

under which dismissal would be ‘in the furtherance of justice,’ which the

court must find in order to dismiss (id., subd. (c)(1)).” (Mendoza, at p. 296,

fn. 4.) Thus, Mendoza explained, “the statute does not appear to give the

court discretion, let alone a mandatory duty, to dismiss an enhancement if

doing so would endanger public safety.” (Ibid.)

The court in Mendoza also explained that any other result would result

in the implied repeal of other statutes. For instance, if a court were obligated

to dismiss an enhancement that would result in a sentence of more than 20

years, it would be impossible to impose a firearm enhancement under

subdivision (c) or (d) of section 12022.53, which provide for firearm

enhancements of 20 and 25 years. (Mendoza, supra, 88 Cal.App.5th at

pp. 296–297.)

Other recent cases have considered the issue and reached the same

conclusion. (People v. Anderson (2023) 88 Cal.App.5th 233, 238–241, review

granted Apr. 19, 2023, S278786; People v. Lipscomb (2022) 87 Cal.App.5th 9,

17–21; People v. Walker (2022) 86 Cal.App.5th 386, 391, 396–398, review

22

granted March 22, 2023, S278309.) We agree with these authorities and

reject defendant’s argument as well.

IV. Danger to Public Safety

As a second challenge to the trial court’s refusal to strike the

enhancements, defendant argues the trial court abused its discretion by

looking to the circumstances at the time of sentencing—rather than at the

time his base sentence is completed—in evaluating the danger to public

safety. Defendant was 34 years old at the time of sentencing, with

approximately a year of custody credits, and his three-strikes sentence for

murder and firearm possession before enhancements was 70 years to life. He

would thus be 103 years old when first eligible for release, if the

enhancements are dismissed. At that age, he argues, he is unlikely to pose

any risk to public safety, and the parole board can deny parole if there is any

continuing risk.

Defendant’s argument finds strong support in People v. Williams (2018)

19 Cal.App.5th 1057 (Williams). The defendant in Williams was convicted in

Nevada County of grand theft (§ 487), unlawful driving or taking a vehicle

(Veh. Code, § 10851), and escape, and in El Dorado County of grand theft; he

admitted three strike priors (§ 667, subds. (b)–(i)), and he received a total

sentence of 193 years to life. (Williams, at p. 1060.) He later sought

resentencing under the Three Strikes Reform Act of 2012 (see § 1170.126),

which, with certain exceptions, allows a person serving a Three Strikes

sentence for a felony that is not serious or violent to petition for resentencing

as a second strike offender. (Williams, at pp. 1059, 1061.) The trial court

denied the motion, citing the defendant’s criminal history, his disciplinary

record and methamphetamine use in prison, and the fact that the current

23

crime was committed while on the run. (Id. at p. 1061.) The appellate court

reversed and remanded the matter.

In language upon which defendant relies, Williams explained that

“[d]etermining whether resentencing a defendant poses an unreasonable risk

of danger to society is necessarily a forward-looking inquiry. [In this inquiry]

the trial court must look to when a defendant would be released if the

petition is granted and the defendant is resentenced. A defendant who would

obtain immediate release if the petition is granted poses a different potential

danger to society than a defendant who could be released only in his or her

70’s. This applies with even greater force to a defendant who would still be

serving a sentence greater than a human lifespan even if the petition were

granted. . . . If a defendant’s term is still effectively life without parole after

resentencing, then resentencing cannot pose an unreasonable risk to public

safety.” (Williams, supra, 19 Cal.App.5th at p. 1063.) Because the trial court

did not determine which of the defendant’s convictions were eligible for

resentencing, it necessarily did not consider what effect granting the petition

would have on the ultimate sentence, and thus could not carry out this

forward-looking inquiry. (Ibid.) And, the court noted, when the defendant

became eligible for parole, the Board of Parole Hearings would assess his

dangerousness before granting parole. (Id. at pp. 1063–1064.) The matter

was remanded for the trial court to determine which crimes were eligible for

resentencing, and only then to determine whether resentencing posed an

unreasonable risk of danger to public safety. (Id. at p. 1064.)

Although Williams involves a different statute, there are parallels

between that case and this one. We acknowledge that in this case the trial

court clearly considered future dangerousness, pointing out defendant’s long

history of crimes and explaining that “prior conduct is usually an indicator of

24

future conduct.” Also, “you cannot get more dangerous to the public than

killing someone and shooting them in the back,” the court observed, and

defendant’s statements while in custody suggested he enjoyed his criminality.

Based on these considerations, the court concluded it could not in good

conscience strike the allegations under section 1385. But the court’s

explanation of its decision not to strike the enhancements did not address the

fact that, with all enhancements stricken, defendant would first be eligible

for parole at the age of 103, a circumstance that would appear highly relevant

in assessing whether his release would endanger the public. (See Williams,

supra, 19 Cal.App.5th at p. 1063.) Nor did the court acknowledge that

defendant would remain subject to two indeterminate life terms, meaning he

would only be released, even then, if the Board of Parole Hearings concluded

he posed no threat to public safety. (See id. at p. 1062, citing People v.

Johnson (2015) 61 Cal.4th 674, 695.)

Ultimately, we need not determine whether the trial court abused its

discretion in refusing to strike the enhancements in this case, since we have

already indicated defendant’s sentence must be vacated. But after retrial of

the prior conviction allegations, which may change the sentencing calculus,

the trial court will resentence defendant. In then assessing whether

defendant is entitled to have enhancements stricken under section 1385, the

trial court should bear in mind the considerations articulated in Williams.

V. Double Punishment for Counts 1 and 2

Defendant contends his sentence for count 2, possession of a firearm by

a felon, should have been stayed under section 654 because it was based on

the same act as the murder conviction. We are unpersuaded.

Section 654 prohibits multiple punishments for a single act or

indivisible course of conduct. (People v. Ramirez (2006) 39 Cal.4th 398, 478.)

25

Whether two offenses are separate is a question of fact for the trial court, and

we uphold the trial court’s express or implied determination if supported by

substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618; People v.

Leonard (2014) 228 Cal.App.4th 465, 499.) We review the trial court’s finding

in the light most favorable to it, and we presume the existence of every fact in

support of the finding that the trial court could reasonably deduce from the

evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)

The court in Jones applied these principles where a defendant was

convicted of both shooting at an inhabited dwelling and being a felon in

possession of a firearm, after he fired shots at a house from a car in which he

was a passenger. (Jones, supra, 103 Cal.App.4th at pp. 1141–1142.) The

court explained that where the evidence “ ‘demonstrates at most that

fortuitous circumstances put the firearm in the defendant’s hand only at the

instant of committing another offense’ ”—for instance, when a defendant

wrestles away an officer’s weapon and shoots at the officer, or where there

was evidence the defendant obtained the gun during a bar fight moments

before a shooting—multiple punishment is improper. (Id. at p. 1144.) But

where the evidence shows the defendant possessed the firearm before the

crime, with an independent intent, multiple punishment is proper. (Ibid.)

The court set forth the rule that “section 654 is inapplicable when the

evidence shows that the defendant arrived at the scene of his or her primary

crimes already in possession of the firearm.” (Id. at p. 1145.)

Other cases have similarly concluded section 654 bars separate

punishment only if the defendant fortuitously obtains a firearm at the

moment of committing another offense. (People v. Ratcliff (1990) 223

Cal.App.3d 1401, 1412; accord, People v. Bradford (1976) 17 Cal.3d 8, 13, 22–

23 [possession of weapon taken from victim not “ ‘antecedent and separate’ ”

26

from use in shooting]; People v. Venegas (1970) 10 Cal.App.3d 814, 821

[multiple punishment improper because evidence indicated defendant

obtained possession of gun simultaneously with shooting, with only objective

to shoot the victim].) The court in Ratcliff noted that some older cases had

sustained section 654 challenges on similar facts, but disagreed with them

and explained that they either failed to address the issue of prior or

subsequent possession of the weapon or were the result of concessions by the

People. (Ratcliff, at pp. 1412–1413.)

A straightforward application of the rules of Jones and Ratcliff leads to

the conclusion that section 654 does not bar multiple punishment here.

Defendant’s own statements show that he pulled over when he saw Deford

and took a gun out of his waistband and that he later disposed of the gun in

the ocean. The only reasonable conclusion is that he possessed the weapon

both before and after the killing, rather than coming upon it fortuitously and

using it immediately to shoot Deford. As in Jones, it “strains reason” to

assume otherwise. (Jones, supra, 103 Cal.App.4th at p. 1147.)

Defendant does not contend that Jones and Ratcliff were wrongly

decided, but rather argues that a close reading of the jury instructions and

findings shows that even under their reasoning, double punishment is

improper. The jury found true the allegation under count 2 that he

personally used a firearm (§ 12022.5, subd. (a)), and that statute applies

when someone “personally uses a firearm in the commission of a felony or

attempted felony” (ibid., italics added). And the jury was instructed that to

find this enhancement true, it must find defendant used the firearm in the

commission of the crime. From this, defendant argues, his conviction for

possessing a firearm must logically have been based only on his possession at

27

the time he shot Deford, not on his possession before or after that time, and

the bar on multiple punishment for one act necessarily applies.

For this point, defendant relies on the principle, expressed in different

contexts, that the trial court cannot make a factual finding contrary to the

jury’s verdict. For instance, in People v. Bradley (2003) 111 Cal.App.4th 765,

the court concluded multiple punishment for robbery and attempted murder

was unavailable. The evidence showed the defendant set up the victim to be

robbed and her accomplices unexpectedly shot him; she was convicted of

attempted murder based on a theory of natural and probable consequences.

(Id. at pp. 767–768.) Because the theory upon which the prosecution

proceeded required the defendant to entertain only the single objective of

robbing the victim, the trial court erred in making a contrary finding that she

personally had the objective also to kill him. (Id. at p. 770.)

In People v. Siko (1988) 45 Cal.3d 820, 826, our high court held that a

defendant convicted of rape, sodomy, and lewd conduct with a child could be

punished for only two of those offenses when the charging document and the

verdict form made clear that the lewd conduct in question was the rape and

sodomy, not other acts that might also have supported the lewd conduct

conviction.

And in People v. Jones (2012) 54 Cal.4th 350, 352, the high court ruled

that a defendant convicted of possession of a firearm by a felon, carrying a

readily accessible concealed and unregistered firearm, and carrying an

unregistered loaded firearm in public could be punished for but one of those

crimes because all three were based on a single act. The court explained that

although there was evidence the defendant obtained the gun three days

before it was found in his car, the record showed he was convicted of all three

offenses due to his being caught with the gun on a single occasion: the

28

information alleged all three crimes were committed on the same day, and

the prosecutor argued there were “ ‘three different counts for the same exact

conduct.’ ” (Id. at p. 359.) The court thus concluded that the “defendant’s

guilt on all three charges was premised solely on his having the gun in his car

when arrested on May 26, 2008.” (Ibid.)

These authorities are readily distinguishable from the case before us,

and they do not assist defendant. There is no inconsistency between the

jury’s finding, that while illegally possessing the firearm defendant used it to

shoot Deford, and the court’s implicit finding that defendant possessed the

gun before the shooting and did not come into possession fortuitously.

Defendant points out that in seeking to persuade the jury of his guilt on

count 2, the prosecutor argued that the fact that defendant threw the

revolver in the ocean “doesn’t mean that he didn’t possess a firearm when he

shot and killed Joseph Deford.” But the prosecutor also pointed out to the

jury that defendant “decided . . . to carry [the gun] in his waistband,” and, in

any case, the theory of the prosecution was in no manner inconsistent with

defendant’s preexisting possession of the gun. We thus conclude substantial

evidence supports the trial court’s implied finding that the two offenses were

separate for purposes of section 654.

VI. Gun Use Enhancements and Serious Felony Finding

As an alternative to his contention that section 654 bars double

punishment for counts 1 and 2, defendant attacks the gun use enhancement

on count 2, and with it the determination that his conviction for being a felon

in possession of a firearm is a serious or violent felony that merits a three-

strikes sentence.

Section 12022.5, subdivision (a) provides for an enhancement of up to

10 years for personal use of a firearm in the commission or attempted

29

commission of a felony. As to count 2, felon in possession of a firearm, the

jury found this enhancement true. Although the sentencing court stayed the

prison term it imposed for the enhancement, the jury’s true finding affected

defendant’s sentence in two other ways. First, under the Three Strikes law a

defendant who uses a firearm during an offense and who has suffered two or

more prior convictions of serious or violent felonies receives an indeterminate

term with a minimum of at least 25 years. (§§ 667, subds. (a)(4),

(e)(2)(A), 1170.12, subds. (b)(1), (c)(2)(A); see §§ 667.5, subd. (c)(8), 1192.7,

subd. (c)(8).) Second, section 667, subdivision (a)(1) provides for consecutive

five-year enhancements for prior convictions of serious felonies when a

person is convicted of a new serious felony. Among the qualifying serious

felonies is one in which the defendant personally uses a firearm. (§ 667,

subd. (a)(4), 1192.7, subd. (c)(8).) Defendant’s sentence was enhanced under

both of these provisions as a result of the jury’s finding that he used a firearm

in connection with count 2.

Defendant contends that if his conviction for firearm possession was

based on his conduct before the murder, when he was carrying the gun

around in his waistband, then logically he did not use the firearm in the

commission of this felony. As a result, he argues, he should not have received

an indeterminate 25-year term for count 2 under the Three Strikes law, nor

the extra 10 years for two prior serious felonies.

This argument has a superficial appeal, but it misconstrues the nature

of possession of a firearm by a felon. It is a continuing offense (see People v.

Warren (1940) 16 Cal.2d 103, 112), one that is “ ‘complete at the first instance

the elements are met,’ ” i.e., when the felon first possesses the gun, but

“ ‘nevertheless not completed’ ” as long as the possession continues. (People v.

Mason (2014) 232 Cal.App.4th 355, 365, quoting Wright v. Superior Court

30

(1997) 15 Cal.4th 521, 525–526.) In such a case, there is only a single offense

even if the proscribed conduct extends over an indefinite period. (Mason, at

pp. 365–366.)

As we have explained, substantial evidence supports the trial court’s

implied finding that defendant possessed the firearm before, and separate

from, his action in shooting Deford, and separate punishment was therefore

proper under section 654. But the offense continued as long as he possessed

the weapon, and the facts show unambiguously that during that possession—

that is, during the continuing commission of the offense—he used the firearm

to kill Deford. In the circumstances, we see no error in imposing a sentence

and enhancements for count 2 that reflected his use of the firearm.

VII. One-Year Term for Firearm Enhancement

In sentencing defendant for count 2, possession of a firearm by a felon

(§ 29800), the trial court imposed a one-year term under section 12022,

subdivision (a)(1), which provides for an additional year of imprisonment for

“a person who is armed with a firearm in the commission of a felony or

attempted felony . . . unless the arming is an element of that offense.”

Defendant contends this was error, and the Attorney General correctly

concedes this point. Courts have consistently concluded that the section

12022, subdivision (a)(1) enhancement does not apply to the offense of felon

in possession of a firearm. (People v. Osuna (2014) 225 Cal.App.4th 1020,

1027, fn. 3, 1032 [“a defendant convicted of violating section [29800] does not,

regardless of the facts of the offense, risk imposition of additional

punishment pursuant to section 12022”], disapproved on another point in

Frierson, supra, 4 Cal.5th at p. 240, fn. 8; People v. Hicks (2014) 231

Cal.App.4th 275, 283–284; see People v. Conley (2016) 63 Cal.4th 646, 659.)

31

We agree that the one-year enhancement was erroneously imposed and must

be stricken.

DISPOSITION

The one-year arming enhancement (§ 12022, subd. (a)(1)) is stricken.

The trial court’s true findings regarding the prior felony allegations under

sections 667, subdivision (a) and the Three Strikes law are reversed, and

defendant’s sentence is vacated. The matter is remanded for retrial of the

prior conviction allegations and resentencing in accordance with the views

expressed in this opinion. In all other respects, the judgment is affirmed.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

PETROU, J.

People v. Hiller (A165126)

32

Trial Court: Del Norte County Superior Court

Trial Judge: Hon. Darren McElfresh

Counsel: J. Wilder Lee, under appointment by the Court of Appeal,

for Defendant and Appellant

Rob Bonta, Attorney General of California, Lance E.

Winters, Chief Assistant Attorney General, Jeffrey M.

Laurence, Senior Assistant Attorney General, Eric D.

Share, Supervising Deputy Attorney General, and Kelly

A. Styger, Deputy Attorney General for Plaintiff and

Respondent

People v. Hiller (A165126)

33