The opinion
Filed 5/26/23; Certified for Publication 6/14/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094195
Plaintiff and Respondent, (Super. Ct. No. 18FE021180)
v.
JESSIE FARIAS et al.,
Defendants and Appellants.
SUMMARY OF THE APPEAL
This case is an example of why all parties to a legal proceeding should be reluctant to
forego attending hearings at which the court is likely to announce a verdict. Here,
defendant inmates, Jesse Farias and Fernando Miranda were found guilty of various
charges stemming from their attack on a fellow inmate. Defendants, their counsel, and
the People then agreed to allow the trial court to determine the truth of allegations that
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they had previously been convicted of crimes that constituted both serious felonies under
Penal Code section 667, subdivision (a), and strikes under Penal Code sections 667,
subdivision (e)(2), and 1170.12, subdivision (c)(2), without their appearances. (Statutory
section citations that follow are found in the Penal Code unless otherwise stated.)
In a detailed minute order issued following the trial court’s consideration of these
recidivist offender allegations, the trial court expressly found the prior convictions were
for serious felonies under section 667, subdivision (a), but made no mention of the
allegations under sections 667, subdivision (e)(2), and 1170.12, subdivision (c)(2).
However, at the sentencing hearing, the court imposed sentences on the defendants as if it
had found the strike allegations to be true. Had all parties attended the hearing on the
priors, we have little doubt that someone in the group would have requested the court
clearly make an oral record of its finding on the strike allegations and that the court
would have obliged and found the allegations to be true. Instead, we have a record that is
silent, with little way to know if the error was purely clerical in nature or if the trial court,
in fact, failed to consider the strike allegations at all.
On appeal, both defendants take the position that the court could not impose a
strike sentence here, because it made no strike finding. We agree that, as the record now
stands, a strike sentence was not appropriate, and we vacate the sentence without
prejudice as to the trial court’s ability to correct the record if it can be clearly shown that
the omission of strike findings was a clerical error and not a failure to make a finding and
disposition on those allegations.
In addition to joining Farias’s challenge to the strike sentence, Miranda also
challenges the trial court’s finding that two of his prior convictions were for serious
felonies as contemplated by section 667, subdivision (a), on the basis that those findings
are not supported by substantial evidence. While we affirm the trial court’s finding on
one of the two subject prior convictions, we agree with Miranda that, considering
changes to the law governing gang offenses, the trial court lacked substantial evidence to
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support its finding that his prior conviction under section 186.22, subdivision (a), was for
a serious felony as contemplated by section 667, subdivision (a).
Finally, both defendants argue that amendments to section 654 made after the trial
court entered its sentence in this matter apply here, and we must remand the case to allow
the trial court to exercise its discretion under the amended law. We agree the amendment
applies and that the trial court may apply the amended version of the law on remand.
FACTS AND HISTORY OF THE PROCEEDINGS
Because the guilt findings in this action are not in dispute, we provide only a brief
summary of the incident that gave rise to this action and the findings regarding that
specific incident. We provide greater detail on allegations and the trial court’s findings
regarding prior convictions, which play a central role in defendants’ appeals.
2018 Incident Giving Rise to this Action
On May 7, 2018, a correctional officer working on the C Yard of the California
State Prison, Sacramento witnessed inmates Farias and Miranda attack, beat, and stab a
third inmate, J.G. The officer made a call on her radio for help and an announcement to
“put the yard down.”
Correctional officers formed a scrimmage line and ran towards the fight, and
deployed pepper spray grenades. Miranda and Farias stopped their attack and were
detained. Farias had blood on his clothing, but Miranda and Farias both appeared
uninjured. One inmate-manufactured weapon was located on the grass near where
officers detained Miranda. Another was located closer to where officers detained Farias.
J.G. was transported to a hospital. He suffered multiple serious injuries that
required extensive treatment, including surgery.
Counts Charged, Enhancements, and Jury Findings Based on the 2018 Incident
In an Amended Information filed on April 23, 2021, which was further amended
on May 4, 2021, the People alleged four counts. Counts one and four were alleged
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against both defendants. Count one alleged both defendants, with malice aforethought,
attempted to murder J.G., in violation of section 664 and section 187, subdivision (a).
Appended to count one were two enhancement allegations: first, that in committing the
crime defendants inflicted great bodily injury on J.G. as contemplated by section
12022.7, subdivision (a); and, second that they used a dangerous weapon—“an inmate
manufactured stabbing weapon”—in the commission of the offense as contemplated by
section 12022, subdivision (b)(1). Count four alleged that defendants unlawfully
possessed and carried an inmate manufactured weapon while incarcerated on the day of
the alleged attack in violation of section 4502, subdivision (a).
Count two made allegations regarding Farias only. It alleged that Farias, with
malice aforethought, assaulted J.G. with a deadly weapon and by means of force likely to
cause great bodily injury while serving a life sentence in a California prison, in violation
of section 4500. Count two, like count one, contained enhancement allegations under
sections 12022.7, subdivision (a), and 12022, subdivision (b)(1).
Count three made allegations regarding Miranda only. It alleged that Miranda,
while incarcerated, assaulted J.G. with a deadly weapon, an inmate manufactured
stabbing instrument, in violation of section 4501, subdivision (a)(1). Count three
contained an enhancement allegation under section 12022.7, subdivision (a).
A jury found the defendants guilty on all counts, and found all of the alleged
enhancements appended to the counts to be true, with the exception of the section 12022,
subdivision (b)(1) (use of a deadly weapon) enhancement alleged with count two. The
verdict form for count two did not include a space for the jury to reach a finding on the
section 12022, subdivision (b)(1), enhancement, and when the clerk read the verdict it
made no mention of this enhancement.
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Alleged Prior Convictions
The information alleged Farias had two prior convictions. First, the information
alleged that on March 4, 1996, Farias was convicted of murder in the first degree in
violation of section 187 by the Superior Court for the County of Tulare. Second, the
information alleged that on March 4, 1996, Farias was convicted of attempted murder in
violation of sections 664 and 187 by the Superior Court for the County of Tulare.
The information also alleged Miranda had three prior convictions. First, the
information alleged that on September 15, 2014, Miranda was convicted of voluntary
manslaughter in violation of section 192, subdivision (a). Second, the information
alleged that on September 15, 2014, Miranda was convicted of assault with a deadly
weapon and the infliction of great bodily injury in violation of section 245, subdivision
(a)(1), and section 12022.7. Third, the information alleged that on August 11, 2009,
Miranda was convicted of the crime of performing acts in furtherance a criminal street
gang in violation of section 186.22, subdivision (a).
The information alleged all the defendants’ prior alleged convictions were (1) for
serious felonies within the meaning of section 667, subdivision (a), which provides for a
five-year sentence enhancement on certain subsequent convictions; and (2) eligible for a
three-strikes life sentence within the meaning of section 667, subdivision (e)(2), and
section 1170.12, subdivision (c)(2).
Defendants Waived the Right to be Present at a Bench Trial on the Priors
In court, while the jury was deliberating the current charges, Farias and Miranda
both waived jury trials on the prior convictions, their counsel concurred, and the People
joined.
After the jury verdicts were read, the judge stated it would reconvene the next
morning for the trial on the prior offenses.
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The Assistant District Attorney stated that she and counsel for Farias had a
preliminary hearing scheduled in another matter at the same time the judge intended to
hold the trial on the priors. The court told the parties a trial takes precedence and to let
the judge in the other department know, and then asked how much testimony the parties
anticipated. The People stated they were willing to submit on the documents; so the court
proposed meeting at 8:45 a.m., 15 minutes earlier than it had originally proposed
meeting. However, counsel for Miranda said he had to be in court in Yolo County at
some point the next day, and the court said it would move the hearing to 8:30 a.m.
The court then asked if defense counsel had seen the evidence the People had
submitted regarding the priors. Farias’s counsel said he had not, and proposed they
conduct the trial on the priors and sentencing at the same time, be that the next day or at
some later time. But, the court stated it planned to send the matter to Probation prior to
sentencing, and it would want Probation to have the verdict on the priors.
The court continued, “[s]o if you just want to submit on the documents, we can do
that and then I will render a ruling tomorrow and notify counsel. But I wanted to give
you an opportunity to argue on the record. But if you don’t plan to do that, you can
submit on the documents.” Farias’s counsel responded, “I am just prepared to object to
the documents as hearsay and submit on that.” Miranda’s counsel said, “I will do the
same.”
The court then allowed the People to argue why the documents were not hearsay.
The People argued the documents were certified official records from the California
Department of Corrections and Rehabilitation. The court stated, “presuming that counsel
is correct and they are certified and have the appropriate stamps, then I will overrule the
objection.” The court continued, “I will take a look at them in the morning and then I
will notify counsel, so you don’t have to be here if you don’t want any further argument
on the record.” The court asked if that would be satisfactory, and counsel for both
defendants said it was.
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Before concluding the day’s hearing, the court addressed the defendants regarding
the proposal to hold a trial on the priors without them present, instructing them “your
counsel have indicated that they don’t need to be here, I can review the records, they’ve
already objected to the records and I’ve overruled the objections. [¶] But you have the
right to be here at the reading of the verdict. I’m going to review these documents and
determine whether or not you’re guilty of the priors, and when I do that, if you want to
waive your appearance, you are welcome to do that. Your attorneys have agreed to
waive their appearance, but that’s a personal right of yours and so you don’t have to
agree to that. You’re certainly welcome to, but I don’t want to have your counsel invoke
a constitutional right on your behalf without talking to you first.” The court then asked,
“[d]o you waive your appearance tomorrow for the verdict?” They both responded,
“[y]es.” Farias added, “[t]his is very boring. I am done.” The court replied, “I
understand. [¶] Thank you, gentlemen. Good luck.” Proceedings then concluded for the
day.
Bench Trial Regarding the Priors
The court held a bench trial regarding the priors on May 6, 2021. There is no
transcript of oral proceedings of the court reading its verdict on the priors. The clerk
entered a minute order memorializing the trial and findings. The minutes identify the
exhibits that were entered. We will provide more detail below regarding some of those
exhibits, when we consider Miranda’s separate arguments regarding the findings that his
prior convictions were serious felonies under section 664, subdivision (a).
According to the minute order, following the trial on the priors the court found
true that Farias had two prior convictions as follows:
“PRIOR CONVICTION #1 - On March 4, 1996, Superior Court of California,
County of Tulare, conviction of the crime of murder in the first degree in violation of
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Section 187 of the Penal Code, a serious felony, within the meaning of Section 667(a) of
the Penal Code - FOUND TRUE.
“PRIOR CONVICTION #2 - On March 4, 1996, Superior Court of California,
County of Tulare, conviction of the crime of attempted murder in violation of Section
664/187 of the Penal Code, a serious felony, within the meaning of Section 667(a) of the
Penal Code - FOUND TRUE.”
The court found true that Miranda had three prior convictions as follows:
“PRIOR CONVICTION #1 - On September 15, 2014, Superior Court of
California, County of Monterey, conviction of the crime of voluntary manslaughter in
violation of Section 192(a) of the Penal Code, a serious felony, within the meaning of
Section 667(a) of the Penal Code - FOUND TRUE.
“PRIOR CONVICTION #2 - On September 15, 2014, Superior Court of
California, County of Monterey, conviction of the crime of assault with a deadly weapon
and infliction of great bodily injury in violation of Section[s] 245(a)(1) and 12022.7 of
the Penal Code, a serious felony, within the meaning of Section 667(a) of the Penal Code
- FOUND TRUE.
“PRIOR CONVICTION #3 - On August 11, 2009, Superior Court of California,
County of Monterey, conviction of the crime of in furtherance of criminal street gang in
violation of Section 186.22 of the Penal Code, a serious felony, within the meaning of
Section 667(a) of the Penal Code - FOUND TRUE.”
A shorter minute order, contained on a document that listed multiple minute orders
in Farias’s case said (in all caps), “court finds prior convictions 1 and 2 to be true.” A
minute order contained on a similar list in Miranda’s case said (in all caps), “court finds
prior convictions 1, 2, and 3 to be true.”
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Sentencing
Both defendants were present with counsel at the sentencing hearing on June 3,
2021.
At the hearing, the trial court gave a recitation of the jury’s findings on the current
charges, as well as its findings on the priors. Regarding Farias’s priors, the court said,
“[h]is priors include the [March 4, 1996], Tulare County [section] 187 and the [March 4,
1996] Tulare County, attempt[ed] section 187.”
Regarding Miranda’s priors, the court said, “priors of [September 15, 2014,] in
Monterey County, [section] 192[, subdivision ](a), that’s found true; second prior of a
[section] 245[, subdivision] (a)(1) with a felony [section] 12022.7, both serious felonies,
were found to be true as well as the Monterey County [August 11, 2009,] for [section]
186.22. All three are serious felonies.”
When the court asked counsel if its description of the findings were correct,
Farias’s counsel responded, “[y]es, as to Court findings, jury findings, et cetera, yes.”
Miranda’s counsel responded, “[w]ith respect to the analysis of when the verdicts were
done and rendered, I believe so.”
The court stated it intended to stay sentences on counts two, three, and four under
section 654.
On count one, the court said it intended to impose a sentence of 27 years to life. It
selected the upper term and tripled it pursuant to section 667, subdivision (e)(2)(A). The
court said it would impose an additional one-year determinate term for the section 12022,
subdivision (b)(1), use of a deadly weapon enhancement, and a three-year term for the
great-bodily-injury enhancement under section 12022.7, subdivision (a).
As to Farias’s priors, the court noted both convictions were from the same
March 4, 1996, trial. So, it would triple the sentence, and provide the basis for one five-
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year prior. This would bring Farias’s total sentence to 27 years to life with an additional
nine-year determinate term.
As to Miranda’s priors, the court noted a five-year enhancement for the section
192, subdivision (a) felony under section 667, subdivisions (a) and (e)(2). It treated the
second conviction in September 2015, under sections 245, subdivision (a)(1), and
12022.7, subdivision (a), as the basis to triple the term for the offense at issue here. The
court stated it planned to impose a second five-year enhancement for the section 186.22,
subdivision (a), conviction in the 2009 case. This would bring Miranda’s sentence to a
total of 27 years to life with an additional 14-year determinate term.
Miranda’s counsel said he was objecting to the three-strikes sentence for Miranda.
He stated he believed, “findings by both the jury and the Court . . . don’t lend credence to
a three strike sentence and I’ll leave it at that.” Farias’s counsel reiterated that he had
objected to documentation submitted regarding prior convictions and stated, “I think
based on the Court’s findings also a three strike sentence is not appropriate, and I’ll
submit on that.”
After the People noted that defendants had not filed Romero motions under People
v. Superior Court (Romero) (1996) 13 Cal.4th 497, and that it had explained in its
sentencing brief why the defendants fell within the three strikes law, the court said, “the
Court does believe that it has the power and the authority to strike the priors, but this case
is not one in which the Court would seriously entertain that. A Romero motion is not
before the Court, but if it were, the Court would deny it based on the information on the
record, the testimony that the Court heard, and the fact that three strikes would be an
entirely appropriate statute that would apply to these two defendants based on their level
of violence and their prior history.” The court stayed counts two, three, and four, and
followed the intended disposition it read earlier in the hearing.
Both parties filed notices of appeal the day they were sentenced.
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Abstracts of Judgment
The abstract of judgment for Farias indicates he was found guilty on counts one,
two, and four; that enhancements were found and tied to count one under sections 12022,
subdivision (b)(1), and 12022.7, subdivision (a); and that a prior conviction enhancement
had been charged and found under section 667, subdivision (a). Notably absent from the
list of prior convictions found was a reference to section 667, subdivision (e)(2), though
the abstract indicates Farias was sentenced pursuant to section 667, subdivision (e)(2)(A).
The abstract of judgment for Miranda indicates he was found guilty on counts one,
three, and four; that enhancements were found and tied to count one under sections
12022, subdivision (b)(1), and 12022.7, subdivision (a); and that two prior conviction
enhancements had been charged and found under section 667, subdivision (a). Notably
absent from the list of prior convictions found was a reference to section 667, subdivision
(e)(2), though the abstract indicates Miranda was sentenced pursuant to section 667,
subdivision (e)(2)(A).
DISCUSSION
I
Strike Findings
Farias and Miranda both argue that the trial court could not sentence them under
the three strikes law because the trial court never actually found that their prior offenses
were strikes. They both argue that this matter should be remanded for resentencing
without the imposition of a term under the three strikes law. The People take the position
that the trial court made proper strike findings and appropriately sentenced the defendants
under the three strikes law. The People also argue that Farias failed to raise an
appropriate objection to the court’s findings in the trial court, and, therefore, failed to
preserve this argument for appellate review. The People also argue any error was
harmless. Finally, the People argue that if this court does find the trial court failed to
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make a finding on the prior strike allegations, the matter should be remanded for the
superior court to clarify its findings. Defendants are correct that on this record the
sentence is unauthorized. However, we make this finding without prejudice as to the trial
court’s ability to correct the judgment if the omission is shown to be purely a clerical
error.
A. The Three Strikes Law
The California three strikes law is contained in section 667, subdivisions (b)-(i),
and section 1170.12. (See People v. Williams (1998) 17 Cal.4th 148, 152.) Under
section 667, subdivision (e), a defendant is subject to a sentencing enhancement when the
defendant has one or more “prior serious or violent felony conviction[s].” For purposes
of section 667, subdivision (e), the definition of a strike is contained in section 667,
subdivision (d), and includes, with certain exceptions not applicable here, “[a]n offense
defined in subdivision (c) of Section 667.5 as a violent felony or an offense defined in
subdivision (c) of Section 1192.7 as a serious felony in this state.” Section 1170.12,
subdivision (c), contains language similar to section 667, subdivision (e), which also
mandates penalty enhancements for defendants that have one or more “prior serious or
violent felony conviction.” For purposes of section 1170.12, subdivision (c), the
definition of “prior serious or violent felony conviction” is contained in section 1170.12,
subdivision (b), and also includes, with certain exceptions, “[a]ny offense defined in
subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision
(c) of Section 1192.7 as a serious felony in this state.” “In summary, both statutes have
this effect: When a defendant is convicted of a felony, and it is pleaded and proved that
he has committed one or more prior felonies defined as ‘violent’ or ‘serious,’ sentencing
proceeds under the Three Strikes law ‘[n]otwithstanding any other law’ (§ 667, subd. (c);
§ 1170.12, subd. (a).)” (Romero, supra, 13 Cal.4th at p. 505.)
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With certain exceptions, a prosecutor must, “plead and prove each prior serious or
violent felony conviction.” (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) And, “[d]ue
process requires the prosecution to shoulder the burden of proving each element of a
sentence enhancement beyond a reasonable doubt.” (People v. Tenner (1993)
6 Cal.4th 559, 566.)
B. Consideration of Priors and Impact of Findings
Here, though it was clear that both parties and their counsel opted to forego
attendance at a hearing during which the court considered evidence of the defendants’
priors and made findings as to the truth of the related enhancement allegations, it was not
clear to this court whether the trial court ever made an oral pronouncement of its findings.
We asked both parties to brief the impact of a lack of a reporter’s transcript or settled
statement in this appeal, and both defendants and the People took the position that record
before us provides sufficient information for our review. The People, in fact, take the
position that there were no oral proceedings to record. As such, we will treat the record
as containing a complete representation of all findings the trial court articulated on the
record with respect to the strike allegations.
“When a jury trial is waived, the judge or justice before whom the trial is had
shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall
be in substantially the form prescribed for the general verdict of a jury and shall be
entered upon the minutes.” (§ 1167.) With respect to findings on enhancements alleging
prior convictions, “[r]eference to the prior conviction must be included in the
pronouncement of judgment for if the record is silent in that regard, in the absence of
evidence to the contrary, it may be inferred that the omission was an act of leniency by
the trial court. In such circumstances the silence operates as a finding that the prior
conviction was not true.” (See In re Candelario (1970) 3 Cal.3d 702, 704 & 706, fn.
omitted, (Candelario) [hearing minutes and abstract did not contain a finding on a prior
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conviction to which defendant had admitted]; but see People v. Turner (1998)
67 Cal.App.4th 1258, 1267-1268 [finding Candelario did not apply when the appellant
had admitted to a prior serious felony under section 667, subdivision (a), but the trial
court did not expressly pronounce a sentence on the prior conviction; and distinguishing
section 667, subdivision (a), findings from strike findings].)
Here, the minute order upon which the court entered its findings on the recidivist
enhancement allegations is silent as to the existence of prior strike convictions. The
minute order explicitly identifies section 667, subdivision (a), but makes no mention of
section 667, subdivisions (d)-(e) or section 1170.12. At the sentencing hearing, although
the trial court imposed a sentence as if it had made a true finding on the strike allegations,
when the court recited its findings on the recidivist allegations, it did not use the word
“strike” or “violent” to describe any of its true findings, and only used the word
“serious.” Finally, much like the trial court’s statements at the sentencing hearing, while
the abstracts of judgment indicated defendants were sentenced under section 667,
subdivision (e)(2)(A) (the Three Strikes Law), under the portion of the abstract where the
court listed enhancement findings, it does not list findings under section 667,
subdivisions (d)-(e), or section 1170.12. In the face of this silence (1) in the minute order
prepared the day the trial court considered the prior-conviction allegations; (2) during the
portions of the sentencing hearing reciting findings on those allegations; and (3) in the
abstract of judgments’ lists of enhancement findings, we treat defendants as if the trial
court concluded the strike allegations were not true. (Candelario, supra, 3 Cal.3d at
p. 706.) Therefore, it appears the defendants should not have been sentenced under the
three strikes law. (Ibid.; accord People v. Mesa (1975) 14 Cal.3d 466, 471.)
The People make a variety of unpersuasive arguments to try to avoid the impact of
the trial court’s silence as to the strike allegations. First, the People point to the finding
in the shorter, less detailed minute orders, which simply state, “COURT FINDS PRIOR
CONVICTIONS . . . TO BE TRUE.” Yet, considering the more detailed findings of the
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longer minute order, the lack of specificity in this short-hand minute order does not
overcome the implications caused by the silence as to strike findings in the longer, more
detailed minute order, during the recitation of findings at the sentencing hearing, and in
the abstracts of judgment. (See § 1167 [requiring a judge following a bench trial to
announce his findings upon the issues of fact in substantially the form prescribed for the
general verdict of a jury, which shall then be entered upon the minutes].)
Next, the People suggest a finding of truth under section 667, subdivision (a),
which refers to “serious felonies” functionally incorporates a finding of truth that the
prior felony was “serious or violent” as contemplated by section 1170.12 and section 667,
subdivision (d). Though we see some strength in this argument, we find treating a truth
finding under section 667, subdivision (a), as a de facto truth finding under the three
strikes law would be contrary to statutory dictates that strike allegations must be pled and
proved (see §§ 667, subd. (f)(1), 1170.12, subd. (e)), and the reasoning in Candelario,
supra, 3 Cal.3d at page 706, in which our Supreme Court directed that silence on
enhancements is to be treated as an act of leniency. Nor are we convinced that we can
say the court made a truth finding on the strike allegations in the face of this silence in the
portions of the record that specifically memorialize the courts findings when it considered
the evidence of those priors because at the sentencing hearing one month later the trial
court (1) imposed a sentence as if it had made a strike finding, and (2) stated it would not
have seriously entertained a Romero motion. While these factors may suggest that, at the
time of the sentencing hearing, the trial court believed it should have made an affirmative
finding that the strike allegations were true when it considered the evidence regarding
those allegations, this suggestion is not the same as a record that shows the court actually
made those findings when acting as the trier of fact on the recidivist allegations.
Finally, the People argue this argument was not preserved for review, and that any
error was harmless. But, “[t]he error involved in an unauthorized sentence is not subject
to forfeiture, and can never be harmless.” (People v. Cabrera (2018) 21 Cal.App.5th
15
470, 477.) Additionally, at the sentencing hearing, counsel for both defendants stated
they felt the trial court’s findings on the Three Strikes allegations did not support a
punishment under the Three Strikes law, preserving the matter for further review.
C. Treatment on Remand
Based on the current record, it appears the trial court reached no conclusions as to
whether the prior convictions were strikes when it acted as a trier of fact regarding those
convictions, and we treat that silence as a finding that it was not true that the defendants
had prior strikes. On that basis, the sentence is unauthorized by the factual findings and
must be vacated. (People v. Bell (1971) 17 Cal.App.3d 949, 955 [When a court
pronounces a sentence which is unauthorized by the Penal Code, that sentence must be
vacated and a proper sentence imposed whenever the mistake is appropriately brought to
the attention of the court].) We note our holding is not the same as a holding that the trial
court made a true finding that was unsupported by substantial evidence, where we would
allow the trial court to retry the question on remand. (People v. Franz (2001)
88 Cal.App.4th 1426, 1455 [“Our Supreme Court has held that, where a prior conviction
finding is reversed on appeal for a lack of substantial evidence, the proper procedure is to
remand the case to the trial court for a retrial of the prior conviction allegation. (People
v. Morton (1953) 41 Cal. 2d 536, 543-545 []”].)
However, “a court has the inherent power to correct clerical errors in its records so
as to make these records reflect the true facts. [Citations.] The power exists
independently of statute and may be exercised in criminal as well as in civil cases.
[Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus
proceeding. [Citation.] The court may correct such errors on its own motion or upon the
application of the parties.” (Candelario, supra, 3 Cal.3d at p. 705; accord People v. Kim
(2012) 212 Cal.App.4th 117, 124.) “Clerical error . . . is to be distinguished from judicial
error which cannot be corrected by amendment. The distinction between clerical error
16
and judicial error is ‘whether the error was made in rendering the judgment, or in
recording the judgment rendered.’ (46 Am.Jur.2d, Judgments, § 202.) Any attempt by a
court, under the guise of correcting clerical error, to ‘revise its deliberately exercised
judicial discretion’ is not permitted. (In re Wimbs (1966) 65 Cal.2d 490, 498 [].)”
(Candelario, supra, 3 Cal.3d at p. 705.) “An amendment that substantially modifies the
original judgment or materially alters the rights of the parties, may not be made by the
court under its authority to correct clerical error . . . unless the record clearly
demonstrates that the error was not the result of the exercise of judicial discretion.”
(Ibid., italics added.)
Given the same judge that considered the prior strike allegations sentenced the
parties as if it had found the allegations true and, at sentencing, stated, “three strikes
would be an entirely appropriate statute that would apply to these two defendants based
on their level of violence and their prior history,” it seems highly unlikely the trial court
intended to show lenience through silence in this matter. Given this, it is possible that the
judge has notes or other evidence from when it reviewed the prior convictions that might
reflect it did, in fact, make an explicit finding on the priors, but those findings did not
make it into the detailed minute order due to a clerical error. E.g., it is possible in cutting
and pasting text or preparing a document based on the judge’s oral statements, a member
of the court staff inadvertently omitted citations to the statutes governing the treatment of
strikes when preparing the detailed minute order, which, in turn, may have been relied
upon in preparing the abstract and reciting findings during sentencing. At this juncture,
we cannot foreclose the possibility that a showing could be made by the trial court that
the omission of the findings from the minute order was a just a clerical, and we do not
here prohibit the trial court from correcting the judgment to reflect that change.
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II
Prior Serious Felony Findings Under Section 664, Subdivision (a)
On appeal, Miranda challenges the trial court’s prior serious felony findings as to
his 2014 section 245, subdivision (a) and section 12022.7 conviction, and his 2009
section 186.22 conviction. He does not challenge the truth finding regarding the 2014
section 192, subdivision (a) conviction.
A. Additional Background
The following documents, in chronological order, were entered as evidence
regarding Miranda’s three prior alleged convictions:
A complaint filed on July 6, 2009, in the Superior Court of California, County of
Monterey, case No. SS0916684A (the 2009 Action). The complaint accusing Miranda of
the commission of various offenses, including, in the first count, carrying a loaded
firearm on one’s person as contemplated by section 12031, subdivision (a)(1).
Minutes from the August 11, 2009, preliminary hearing in the 2009 Action.
According to the minutes, the complaint in the action was orally amended at that time to
add a fourth count for felony violation of section 186.22, subdivision (a). According to
the minutes, Miranda then moved to withdraw his prior not guilty plea and enter a
conditional plea. “Defendant was informed that entry of plea would constitute 1
strike(s),” though the minutes do not specify if he was informed any specific offense to
which he was entering a plea of nolo contendere would constitute the strike. Defendant’s
motion was granted and he entered a plea of nolo contendere to the first and fourth counts
alleged in the complaint for the 2009 Action, as amended.
A waiver of rights and plea of guilty/no contest signed by Miranda on August 11,
2009, in the 2009 Action. According to the form, Miranda was pleading nolo contendere
to offenses under sections 12031, subdivision (a), and 186.22, subdivision (a). Written
under the line identifying the offenses to which he was entering a plea was, “1 strike.”
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Minutes from a “Supplemental Report” hearing in the 2009 Action on January 11,
2011. According to the minutes, Miranda’s probation was being revoked and the court
sentenced him to a term of 16 months on both the first and fourth counts, to be served
concurrently.
An abstract of judgment filed on January 13, 2011, in the 2009 Action. According
to the abstract, on August 11, 2009, Miranda was convicted of possessing a loaded
firearm under section 12031, subdivision (a)(1), and of committing a “street gang act”
under section 186.22, subdivision (a). The abstract stated Miranda’s sentence was
pronounced in the 2009 Action on January 11, 2011.
An FBI fingerprinting form for fingerprints taken on January 20, 2011. The form
bears a notation that Miranda had been cited for violating both section 12031, subdivision
(a)(1), and section 186.22, subdivision (a), in the 2009 Action.
An amended information filed on January 4, 2012, in case No. SS110928B (the
2011 Action). The information charges Miranda and a codefendant with the pre-
meditated murder of an unnamed “Victim 1” on May 7, 2011. It contains an
enhancement allegation to the murder allegation that Miranda committed the alleged
murder for the benefit of, at the direction of, or in association with a criminal street gang,
for the purpose of promoting, furthering, or assisting in the criminal conduct of gang
members in violation of section 186.22, subdivision (b)(1). The information alleged in a
second count that Miranda and the codefendant to that action engaged in street terrorism
on May 7, 2011, the same day they allegedly murdered victim 1. The information alleged
as enhancements to both counts that Miranda (1) had suffered a conviction for street
terrorism in violation of section 186.22, subdivision (a), in the 2009 Action on January
11, 2011, as contemplated by section 1170.12, subdivision (c)(1); and (2) was ineligible
to be sentenced to the county jail pursuant to section 1170, subdivision (h)(2), due to the
nature of the crimes alleged.
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Minutes from a September 15, 2014, hearing that appears to have occurred on the
fifth day of a jury trial in the 2011 Action. According to the minutes, on September 15,
2014, the trial court amended the information in the action upon the motion of the district
attorney. The information was amended to add an allegation that Miranda had committed
voluntary manslaughter as contemplated by section 192, subdivision (a). Three
enhancements were appended to the (new) third count: (1) a section 186.22, subdivision
(b)(1), gang enhancement; (2) a section 1170.12, subdivision (c)(1), strike enhancement;
and (3) a section 667, subdivision (a), serious felony enhancement allegation. According
to the minutes, Miranda then withdrew his prior plea of not guilty, and entered into a
conditional plea of guilty or nolo contendere to the third count and its enhancements.
Under the plea, he would receive a sentence of 37 years, to be served consecutive to a
penalty that would be imposed in case No. SS141298A (the 2014 Action), to reach a total
sentence of 42 years and 4 months in both cases. According to the minutes, Miranda was
informed that the plea would constitute a strike, a serious or violent felony under the
three strikes law. “Upon stipulation of Counsel,” the court found, “a factual basis for the
plea based on the evidence received during the jury trial and the Preliminary Hearing
transcript.” Defendant was advised conviction would require him to register as a gang
member under section 186.30.
The plea agreement signed by Miranda in the 2011 Action which was filed on
September 15, 2014. Miranda pled guilty to section 192, subdivision (a), voluntary
manslaughter; and admitted the gang enhancement, the prior strike enhancement under
section 1170.17, and the prior serious felony enhancement under section 667, subdivision
(a). The agreement stated the maximum prison term Miranda could serve based on these
admissions was 37 years.
Minutes from the October 17, 2014, sentencing hearing in the 2011 Action. The
court imposed a term of 11 years for the section 192, subdivision (a), voluntary
manslaughter conviction. That term was then doubled due to the prior strike under
20
section 1170.12, subdivision (c)(1). A 10-year gang enhancement was added under
section 186.22, subdivision (b)(1). A five-year prior serious felony enhancement was
added for the section 667, subdivision (a), prior serious felony. The minutes noted the
sentence was to be served consecutively with the sentence in the 2014 Action. Defendant
was required to register as a gang member pursuant to section 186.30. Upon the motion
of the District Attorney, all other charges, enhancements, and allegations were dismissed
under section 1385.
An abstract of judgment filed on October 21, 2014, in both the 2011 Action and
2014 Action. The abstract noted Miranda had been convicted of voluntary manslaughter
and would serve 22 years for that crime, with a 10-year enchantment under section
186.22, subdivision (b)(1)—this sentence was linked to the 2011 Action. The abstract
sentenced him to two years for “[a]ssault with a deadly weapon” under “PC” “245(a),”
with an enhancement of three years and four months under section 186.22, subdivision
(b)(1)—this sentence was linked to the 2014 Action. The abstract also denotes that the
court had found a section 12022.7, subdivision (a), enhancement appended to the section
245, subdivision (a), assault with a deadly weapon guilt finding in the 2014 Action, but
that the time imposed was “stricken.” The instructions for listing enhancements found
and sentences imposed for them states, “DO NOT LIST ENHACEMENTS FULLY
STRICKEN by the court.” The abstract also lists a five year enhancement to the sentence
under section 667, subdivision (a), without specifying if that enhancement was
specifically appended to the voluntary manslaughter or section 245, subdivision (a)
conviction. It also does not state the nature of the prior serious felony conviction at issue.
The total time for the sentence imposed on the 2011 and 2014 Actions according to the
abstract was 42 years and 4 months, which was consistent with the plea agreement
identified in the minutes from the September 15, 2014, in the 2011 Action.
A fingerprinting card for prints taken on October 28, 2014. The card identifies the
convictions and enhancements in the 2011 Action as section 192, subdivision (a)
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voluntary manslaughter, with section 186.22, subdivision (b)(1), and section 667,
subdivision (a), prior felony conviction enhancements. For the 2014 Action it identified
a section 245, subdivision (a), conviction for “FORCE/ADW NOT FIREARM:GBI” with
a section 186.22, subdivision (b)(1), enhancement.
A document dated June 15, 2020, that records Miranda’s movements between,
entry into, and parole from detention facilities.
The documents considered do not include a charging document, plea agreement,
or minutes from a hearing at which the plea was entered in the 2014 Action, which was
the action in which the section 245, subdivision (a), and section 12022.7 conviction was
entered.
Miranda presented no evidence concerning the nature of his prior convictions.
B. Standard of Review
“The People must prove all elements of an alleged sentence enhancement beyond
a reasonable doubt. (People v. Tenner[, supra,] 6 Cal.4th [at p.] 566 [].)” (People v.
Miles (2008) 43 Cal.4th 1074, 1082.) 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.’ ” (People
v. Gallardo (2017) 4 Cal.5th 120, 134.) “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.” (Miles, at p. 1083.)
C. Applicable Statutes
Under section 667, subdivision (a)(1), “[a] person convicted of a serious felony
who previously has been convicted of a serious felony in this state . . . , shall receive, in
22
addition to the sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought and tried separately. The
terms of the present offense and each enhancement shall run consecutively.” “As used
in” section 667, subdivision (a), “ ‘serious felony’ means a serious felony listed in
subdivision (c) of Section 1192.7.” (Id. at subd. (a)(4).) In turn, section 1192.7,
subdivision (c) defines “serious felony” to mean any one of a list of 42 identified crimes,
including, for our purposes, “(1) Murder or voluntary manslaughter; . . . (8) any felony in
which the defendant personally inflicts great bodily injury on any person, other than an
accomplice, or any felony in which the defendant personally uses a firearm; . . . (28) any
felony offense, which would also constitute a felony violation of Section 186.22; . . . (31)
assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic
firearm or assault on a peace officer or firefighter, in violation of Section 245; . . . .”
D. Prior Conviction Under Section 245, Subdivision (a), and 12022.7
Miranda argues there is insufficient evidence to support the trial court’s true
finding that, “[o]n September 15, 2014, Superior Court of California, County of
Monterey, conviction of the crime of assault with a deadly weapon and infliction of great
bodily injury in violation of Section[s] 245(a)(1) and 12022.7 of the Penal Code, a
serious felony, within the meaning of Section 667(a) of the Penal Code.”
Miranda argues substantial evidence does not support a finding he was convicted
of a prior serious felony under section 245, subdivision (a), or section 12022.7. First, he
argues the record does not contain substantial evidence that the section 245, subdivision
(a), conviction was for assault with a deadly weapon or another form of section 245,
subdivision (a) assault that qualifies as a serious felony. Second, he argues that
substantial evidence does not support the finding that the prior section 245, subdivision
(a), conviction included a section 12022.7 enhancement that could have been considered
by the court in this action. We find that substantial evidence supports a finding that the
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prior conviction was for a felony in which Miranda inflicted great bodily injury as
contemplated by section 12022.7, subdivision (a), and, therefore, the trial court properly
concluded this prior conviction was for a serious felony.
Section 12022.7, subdivision (a), imposes a sentencing enhancement on a
defendant when it is found that the defendant “personally inflict[ed] great bodily injury
on any person other than an accomplice in the commission of a felony or attempted
felony.” The list of prior serious felonies that qualify for a section 667, subdivision (a),
enhancement includes those, “in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice . . . .” (§§ 667, subd. (a)(4), 1192.7, subd.
(c)(8).) According to the abstract of judgment recording the judgment in the 2014
Action, the court found true a section 12022.7, subdivision (a), enhancement to the
section 245, subdivision (a), conviction, but the sentence imposed for that enhancement
was “stricken.”
Citing People v. Barro (2001) 93 Cal.App.4th 62, 67 (Barro), Miranda argues that
we cannot tell from this record why the section 12022.7, subdivision (a), enhancement
was stricken, and, therefore, we must treat the strike as if it occurred in such a way that
the finding can no longer be used as a basis to enhance his current sentence—i.e., we
must treat him as if he was never prosecuted and convicted with a section 12022.7
enhancement.
We find Barro inapplicable here. In Barro a defendant challenged a finding that
his prior conviction for mayhem qualified as a strike on the grounds that the prior
conviction had been dismissed under section 1385. (Id., supra, 93 Cal.App.4th at p. 63.)
When the trial court sentenced Barro to probation in the case in which he had the prior
mayhem conviction, the court had noted, “ ‘[v]ery clearly on the record [it is reflected]
that at the successful completion of probation, that means no violations of probation or
the law, the People have indicated that they will dismiss count 2 [(mayhem)] and agree to
[section] 1203.4 dismissal of count 3 [(ADW)].’ ” (Id. at p. 65.) After Barro completed
24
probation, the court set aside the conviction, stating in its minute order, “[p]ursuant to the
plea bargain entered into May 7, 1993, the plea of guilty/conviction, as to count 2
(mayhem) is set aside, a plea of not guilty is entered and the matter is dismissed in
furtherance of justice under section 1385.” (Id. at pp. 65-66.) The court observed,
“decisional authority supports the conclusion that the effect of a dismissal under section
1385 is to wipe the slate clean as if the defendant never suffered the prior conviction in
the initial instance. In other words, ‘[t]he defendant stands as if he had never been
prosecuted for the charged offense. (People v. Simpson (1944) 66 Cal. App. 2d 319, 329
[].)’ (People v. Superior Court (Flores) (1989) 214 Cal. App. 3d 127, 136 [].)” (Barro,
at p. 67.) It also reasoned that if the Legislature had intended for dismissals under section
1385 to be able to serve as strikes in future instances, it could revise the statute to include
that language. (Ibid.)
Miranda would have us believe that because the abstract of judgment from the
2014 Action does not state the sentence was stricken under anything other than under
section 1385, we should assume it was stricken under section 1385, effectively wiping
the slate clean as to that conviction as would be required by Barro. But this argument
ignores the explicit language of the abstract of judgment: the form instructs the court to
list all enhancements charged and found to be true, and in all capital letters states, “DO
NOT LIST ENHACEMENTS FULLY STRICKEN by the court.” Moreover, the word
“stricken” is only listed under the column identifying “time imposed.” The abstract
demonstrates that the finding of truth on the section 12022.7, subdivision (a),
enhancement to the section 245, subdivision (a), assault was not itself stricken. Only the
sentence was stricken. Thus, the conviction in the 2014 Action was one for a crime, “in
which [Miranda] personally inflict[ed] great bodily injury on any person, other than an
accomplice,” which is a serious felony “listed in subdivision (c) of Section 1192.7,” and,
therefore, is a serious felony under section 667, subdivision (a). (§§ 667, subds. (a)(4),
1192.7, subd. (c)(8).)
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E. 2009 Conviction Under Section 186.22, Subdivision (a)
Miranda concedes that, taken together, the July 6, 2009, complaint; the August 11,
2009, waiver of rights and plea of guilty/no contest signed by Miranda; the August 11,
2009, minute order; the January 11, 2011, minute order; and the January 13, 2011,
abstract of judgment provide sufficient proof that he was convicted by a plea of nolo
contendere of violating section 186.22, subdivision (a), in the 2009 Action. However,
making one set of arguments based on a changed understanding of section 186.22,
subdivision (a), reflected in decisional authority announced after his 2009 conviction, and
another based on a recent Legislative amendment to the whole of section 186.22 and a
related procedural statute, Miranda argues the documents considered by the trial court do
not provide sufficient evidence that his prior conviction under section 186.22, subdivision
(a), was for a serious felony under the laws current meaning. We consider each argument
in turn, but first set out the basic statutory language of section 186.22, subdivision (a), in
2009 and now, and outline the elements of a section 186.22 cause of action.
1. Section 186.22, Subdivision (a)
In 2009, section 186.22, subdivision (a), provided a punishment for “[a]ny person
who actively participates in any criminal street gang with knowledge that its members
engage in or have engaged in a pattern of criminal gang activity, and who willfully
promotes, furthers, or assists in any felonious criminal conduct by members of that
gang.” (§ 186.22, subd. (a) (LexisNexis 2009 Ed.).) This language in section 186.22,
subdivision (a), remained the same in 2011 (§ 186.22, subd. (a) (LexisNexis 2011 Ed.))
and 2014 (§ 186.22, subd. (a) (LexisNexis 2014 Ed.)). By 2018, commas were added to
offset the phrase “or have engaged in” (§ 186.22, subd. (a) (LexisNexis 2018 Ed.)), and
that language remained in effect until January 1, 2022, (§ 186.22, subd. (a) (LexisNexis
2021 Ed.)). The version of section 186.22, subdivision (a), in effect between January 1,
2022, and December 31, 2022, contained nonsubstantive changes, providing a
26
punishment for “A person who actively participates in a criminal street gang . . .” instead
of “Any person who actively participates in a criminal street gang . . . .” (§ 186.22
(Deering, Lexis Advance through the 2022 Regular Session), italics added.) The version
of section 186.22(a) that came into effect on January 1, 2023, contained the same
language as the 2022 version. (Pen. Code, § 186.22 (Deering, Lexis Advance through the
2022 Regular Session).)
We note that the version of section 186.22 in effect through December 31, 2022,
differed from the one currently in effect in subdivision (b)(3), which provides direction to
courts on which sentencing enhancement to apply when there is a finding that that current
offense was committed for the benefit of a street gang. (See Stats. 2021, ch. 699, §§ 3 &
4 [compare versions of § 186.22, subd.(b)(3).) There are also some minor changes to the
language of section 186.22, subdivision (e)(1). Neither change alters our analysis here.
In any event, between 2009 and the present time, while substantive changes to the
greater statutory scheme punishing criminal street gang activity have occurred—we
discuss some of those below—the language in section 186.22, subdivision (a), has
remained relatively unchanged.
Under section 186.22, subdivision (a), there are three elements to a gang
participation offense. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) They are,
“[f]irst, active participation in a criminal street gang, in the sense of participation that is
more than nominal or passive; second, knowledge that the gang’s members engage in or
have engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.”
(Ibid.)
2. Impact of People v. Rodriguez (2012) 55 Cal.4th 1125
Miranda’s first argument regarding the 2009 conviction for street terrorism under
section 186.22, subdivision (a), is related to the changed understanding that developed
27
after 2009 about the nature of the third element of a section 186.22, subdivision (a)
offense. Essentially, Miranda asserts that at the time he was convicted under 186.22,
subdivision (a), the subdivision could be interpreted to allow for a gang participation
finding when the alleged perpetrator acted alone. However, in 2012, in People v.
Rodriguez, supra, 55 Cal.4th at page 1131, our Supreme Court considered “whether the
third element” of a section 186.22, subdivision (a), offense “is satisfied when a gang
member commits a felony while acting alone,” and concluded it is not.
Miranda argues that due to this post-2009 change in the understanding of section
186.22, subdivision (a), in order for the trial court to find his 2009 conviction was for a
serious felony as contemplated by section 667, subdivision (a), and section 1192.7,
subdivision (c)(28), the trial court needed to find not only that he had a prior conviction
under section 186.22, subdivision (a), as it existed in 2009, but also that he committed the
act that lead to his conviction in the 2009 Action with another member of the gang rather
than alone. He argues that the trial court made no finding that he acted with another gang
member, and, more importantly, the documents admitted regarding his prior convictions
contain no evidence to support such a finding. He argues that, therefore, the trial court’s
finding that his 2009 conviction under section 186.22, subdivision (a), was a prior serious
felony must be reversed and the matter should be remanded to the trial court for retrial on
this prior conviction. We agree.
To support his argument Miranda cites to People v. Strike (2020) 45 Cal.App.5th
143 (Strike), review denied June 10, 2020. We agree that Strike is instructive on this
issue. In Strike, supra, 45 Cal.App.5th at pages 145-146, following a jury trial in which
Christopher Strike was found guilty of various crimes, in a bifurcated proceeding, the
trial court found Strike had a prior conviction in 2007 for gang participation under section
186.22, subdivision (a), “which qualified as a ‘strike’ under the ‘Three Strikes’ law.
(§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1).)” The trial court doubled Strike’s
base sentence due to the strike finding. (Id. at p. 146.)
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On appeal, the Fourth District Court of Appeal found that the trial court had
engaged in impermissible fact finding to determine that Strike’s 2007 offense was
committed with a fellow gang member, and reversed the trial court’s findings. (Strike,
supra, 45 Cal.App.5th at pp. 147-149.) In so doing, it discussed the impact of the
Rodriguez decision in the assessment of when a pre-2012 conviction under section
186.22, subdivision (a), can qualify as strike under the Three Strikes law. (See id. at
p. 149, et seq.)
The court stated that while the statutory text of section 186.22, subdivision (a), and
the basic list of the three elements of a gang participation offense might have remained
unchanged between the 2007 date Strike entered his section 186.22, subdivision (a), plea
and 2020, the interpretation of the third element of the gang participation offense had
changed with our Supreme Court’s issuance of the Rodriguez opinion in 2012. (Strike,
supra, 45 Cal.App.5th at p. 149.) The court observed that, as a consequence, while “at
the time defendant entered his [2007] plea, it was not a required element of the gang
participation offense that defendant had committed a felony offense with another member
of his gang. [¶] . . . [¶] [f]ollowing the Supreme Court’s decision in Rodriguez, a
conviction for gang participation under section 186.22[, subdivision ](a), requires the
prosecution to prove the alleged gang member engaged in felonious conduct with another
member of his or her gang.” (Id. at pp. 149-150.) As a result, “in 2017, when the
prosecution sought to prove defendant’s 2007 gang participation conviction qualified as a
strike, the understanding of the elements of the offense had shifted. Rodriguez had
narrowed the scope of section 186.22[, subdivision ](a). Certain conduct that was
considered gang participation prior to Rodriguez no longer qualified. This change in the
interpretation of section 186.22[, subdivision ](a), rendered a pre-Rodriguez conviction
inconclusive on its face as to whether it qualified as a strike. (See People v. Watts (2005)
131 Cal.App.4th 589, 596–597 [32 Cal. Rptr. 3d 260] [holding a strike finding was not
supported by the record where the defendant pleaded guilty to the offense, a violation of
29
§ 12031, subd. (a)(2)(C), prior to a Supreme Court decision clarifying its elements].) A
conviction under section 186.22[, subdivision ](a), prior to Rodriguez could have been
committed in ways that would not warrant a conviction and therefore a strike post-
Rodriguez. Thus, to prove the strike allegation here, the prosecution could not simply
rely on the fact defendant had suffered a conviction for violating section 186.22[,
subdivision ](a). The prosecution had to prove defendant admitted all of the elements of
the offense as explained by Rodriguez, including that he committed a felony offense with
another member of his gang. (See People v. Miles[, supra,] 43 Cal.4th [at p.] 1082 [] [an
alleged sentence enhancement must be proved beyond a reasonable doubt].)” (Strike,
supra, 45 Cal.App.5th at pp. 149-150, fn. omitted.)
We note that Strike was concerned with the application of Rodriguez when the
prior section 186.22, subdivision (a), offense was being used as a strike for purposes of a
sentencing enhancement under sections 667, subdivisions (d) and (e)(1), and 1170.12,
subdivisions (b) and (c)(1), and here we are primarily concerned with its application
when the prior section 186.22, subdivision (a), offense is being used to enhance
Miranda’s sentence due to its nature as a serious felony as contemplated under section
667, subdivision (a). (Strike, supra, 45 Cal.App.5th at p. 146.) However, in both cases,
the court is looking to a list of felonies identified in section 1192.7, subdivision (c)—
namely subdivision (c)(28)’s reference to “any felony offense, which would also
constitute a felony violation of Section 186.22.” (Strike, supra, 45 Cal.App.5th at p. 146;
see also § 667, subds. (a)(1), (a)(4) & (d)(1).) Thus, we find Strike’s explanation of the
impact of Rodriguez on how we consider pre-2012 convictions under section 186.22,
subdivision (a), to be instructive in our consideration of a pre-2012 offense that is being
relied on to support a prior serious felony allegation under section 667 subdivision (a).
Nothing in the record before the trial court suggests that Miranda committed the 2009
gang offense with another member of his gang. As such, substantial evidence did not
support the trial court’s finding that the section 186.22, subdivision (a), conviction
30
qualified as a prior serious felony under section 667, subdivision (a). (Strike, supra,
45 Cal.App.5th at pp. 149-150.)
The Attorney General unpersuasively tries to convince us to not apply Strike to
require a remand in this case.
First, the Attorney General invites us to conclude that Strike was incorrectly
decided, arguing any violation of section 186.22, subdivision (a), is a “strike” offense,
and that when Miranda pleaded guilty to a section 186.22, subdivision (a), offense in
2009, he admitted every element of the crime. Therefore, the Attorney General reasons,
Miranda’s 2009 guilty plea conclusively proves he satisfied the third element for a 186.22
conviction, and the change in the nature of that element effectuated by Rodriguez does
not change this. He argues that in order to attack the validity of his prior conviction,
Miranda needs to bring a collateral challenge to that conviction.
To begin with, we disagree with the Attorney General’s decision that Strike was
wrongly decided and observe there has yet to be a published decision challenging it or
questioning its reasoning.
Next, we note that in advancing his argument on appeal, Miranda is not
challenging the validity of his prior conviction at the time he was convicted. Instead, he
is questioning whether it has been shown to qualify as a serious felony under section 667,
subdivision (a), at the time he was sentenced in this action. Under that section, the
conviction must satisfy the current (i.e., post-Rodriguez) understanding of the offense.
Though the record establishes defendant’s 2009 conviction for gang participation, the
documents provided do not prove that the conviction constitutes a violation of section
186.22, subdivision (a), as interpreted in Rodriguez. (Strike, supra, 45 Cal.App.5th at
p. 150.) “The prosecution had to prove defendant admitted all of the elements of the
offense as explained by Rodriguez, including that he committed a felony offense with
another member of his gang.” (Ibid.) This the prosecution did not do.
31
Next, the Attorney General argues that even applying Strike there was sufficient
evidence in documents considered by the trial court to support a finding that the 2009
conviction under section 186.22, subdivision (a), was for a serious felony. He notes that
in the 2011 Action, the complaint alleged Miranda had suffered a prior serious and
violent felony under section 1170.12, subdivision (c)(1), which is one of two statutory
schemes containing the “Three Strikes” law. (See Strike, supra, 45 Cal.App.5th at
p. 146.) He then notes that in 2014 when Miranda entered a negotiated plea in the 2011
Action, in which he entered a plea to a voluntary manslaughter charge, he admitted to
having a prior strike. The Attorney General then reasons that this admitted strike must
have been the 186.22 gang offense alleged in the complaint, and that in admitting to the
strike in 2014, Miranda was functionally conceding the 2009 conviction qualified as a
strike in the post-Rodriguez understanding of the offense.
This reads too much into the documents. A closer look at the minutes recording
the circumstances under which the 2014 plea was entered reflect no admission that
Miranda admitted to committing a section 186.22, subdivision (a), gang offense with
another gang member in 2009. According to the minutes, when the trial court allowed
the People to amend the operative complaint in the 2011 action to include a count for
voluntary manslaughter, it also allowed the People to add enhancement allegations tied to
the count for a prior strike under section 1170.12, subdivision (c)(1), and a prior serious
felony under section 667, subdivision (a). Miranda then admitted to these new
allegations. The minutes do not say the prior crime contemplated by the allegations was
the 2009 gang offense, and the handwritten note on the amended complaint, which
possibly, captures the amendments made orally at the 2014 hearing does not specify the
underlying prior offense was the conviction in the 2009 Action. Additionally, the plea
signed by Miranda does not allude to the nature of the prior crime and/or strike to which
he was admitting as part of the plea. In signing the plea agreement in 2014, the parties
did not state the factual basis supporting the plea could be found in a court document
32
regarding prior offenses—e.g., in the abstracts of judgment from the 2009 case. Instead,
the minutes from the 2014 hearing state the factual basis for the plea is “based on the
evidence received during the jury trial and the Preliminary Hearing transcript.” Much
like in Strike where the court reversed a strike finding because the record only showed
that Strike admitted to committing a gang offense in 2007, but not that he admitted to
committing that offense with another gang member (Strike, supra, 45 Cal.App.5th at
pp. 153-155), here all the record shows is that in reaching a plea agreement in 2014,
Miranda admitted he had previously committed some crime that qualified as a strike.
Moreover, the Attorney General’s arguments regarding the value of the 2014 plea
in the 2011 Action are functionally a request for us to find that Miranda’s plea in 2014
should estop him from asserting that the 2009 conviction does not qualify as a prior
serious offense here. But section 667, subdivision (f), requires a “prosecuting attorney
[to] plead and prove each prior serious or violent felony conviction.” “The Legislature
has thus rejected the application of collateral estoppel by the prosecutor to prior
conviction and has, instead, required the prior to be specifically proven in the new action
regardless of whether or not a previous jury found the prior ‘true.’ ” (People v. Rice
(1988) 200 Cal.App.3d 647, 654.) The plea and resulting conviction in the 2011 action,
and its inclusion of a strike and prior serious felony enhancement, does not serve to
remove from the People their burden of proving those enhancement allegations in this
action.
3. Impact of Assembly Bill No. 333
As contemplated by section 186.22, a criminal street gang is a group whose
members, among other things, engage in “a pattern of criminal gang activity.” (§ 186.22,
subd. (f).) In 2021, the Legislature enacted Assembly Bill No. 333 (2021-2022 Reg.
Sess.) (Assembly Bill 333), which amended section 186.22 effective January 1, 2022,
after the trial court sentenced defendant. Some of those amendments made changes to
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subdivision (e)’s definition of “pattern of criminal gang activity.” (Stats. 2021, ch. 699,
§ 3, amending § 186.22, subd. (e).) Among other things the definition added a
requirement that the “currently charged offense shall not be used to establish the pattern
of criminal gang activity.” (Stats. 2021, ch. 699, § 3, amending § 186.22, subd. (e)(2).)
We note that the amended definition also contains added language that specifies
that an offense used to establish the “pattern of criminal gang activity” must have
“commonly benefited a criminal street gang, and the common benefit of the offense is
more than reputational.” (Compare § 186.22, subd. (e) (2021) with § 186.22, subd. (e)(1)
(2023).)
Prior to Assembly Bill 333’s enactment, charged offenses could be counted as the
predicate offenses. (See People v. Loeun (1997) 17 Cal.4th 1, 10 [finding in 1997 that
“when the prosecution chooses to establish the requisite ‘pattern’ by evidence of ‘two or
more’ predicate offenses committed on a single occasion by ‘two or more persons,’ it
can, as here, rely on evidence of the defendant’s commission of the charged offense”].)
The Legislature made various findings regarding problems with how the prior
version of the gang enhancement statutes had been applied when it enacted Assembly
Bill 333. (Stats. 2021, ch. 699, § 2.) These findings included that the gang enhancement
statute had been found to be “applied inconsistently against people of color, creating a
racial disparity”; that though the enhancements had been enacted as part of a scheme that
was meant “to target crimes committed by violent, organized criminal street gangs”
through amendments and court rulings, the statutes had been expanded such that gang
enhancements had become ubiquitous; and that “[g]ang enhancements and allegations
have additionally been used to legitimize severe punishment.” (Stats. 2021, ch. 699, § 2,
subds. (d)(1), (g), & (i).)
Miranda argues that under principles articulated in In re Estrada (1965) 63 Cal.2d
740, he is entitled to have the question of whether his prior conviction under section
186.22, subdivision (a), qualifies as a “felony offense, which would also constitute a
34
felony violation of Section 186.22,” and therefore as a serious felony, under the amended
version of the law. Additionally, he argues that, under the current record, there was not
sufficient evidence that the concurrently charged offense was not used to establish the
pattern of criminal gang activity by the group in which he participated.
We agree that the amended version of section 186.22 should be considered on
remand.
Absent evidence of contrary legislative intent, if an “amendatory statute lessening
punishment becomes effective prior to the date the judgment of conviction becomes final
then . . . it, and not the old statute in effect when the prohibited act was committed,
applies.” (In re Estrada, supra, 63 Cal.2d at p. 744; see also People v. Mani (2022)
74 Cal.App.5th 343, 379.) “This rule rests on an inference that when the Legislature has
reduced the punishment for an offense, it has determined the ‘former penalty was too
severe’ (Estrada, at p. 745) and therefore ‘must have intended that the new statute
imposing the new lighter penalty . . . should apply to every case to which it
constitutionally could apply’ (ibid.).” (People v. DeHoyos (2018) 4 Cal.5th 594, 600.) A
judgment is not considered final until the time for petitioning for a writ of certiorari in the
United States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 305-
306.)
Our Supreme court has applied the Estrada reasoning, “to statutes which redefine,
to the benefit of defendants, conduct subject to criminal sanctions.” (Tapia v. Superior
Court (1991) 53 Cal.3d 282, 301.) Additionally, “a defendant is entitled to the benefit of
an amendment to an enhancement statute, adding a new element to the enhancement,
where the statutory change becomes effective while the case was on appeal, and the
Legislature did not preclude its effect to pending cases.” (People v. Figueroa (1993)
20 Cal.App.4th 65, 68.) As discussed above, in Strike, the appellate court explained that
in order to prove a prior gang enhancement operated as a strike—i.e., that was a serious
felony listed in section 1192.7, subdivision (c)—the People needed to prove all the
35
elements of the offense as it was understood after our Supreme Court rendered its opinion
in Rodriguez. (Strike, supra, 45 Cal.App.5th at pp. 149-150.) That is, in order for the
prior offense to qualify as an enhancement, it needed to meet the post-Rodriquez
understanding of the law.
Here, section 186.22 has been amended in a way that narrowed the definition of
what qualifies as a street gang offense. Consequently, what it means for a prior crime to
be a “felony offense, which would also constitute a felony violation of Section 186.22” as
contemplated in sections 1192.7, subdivision (c)(28), and by extension, a serious felony
under section 667, subdivision (a)(4), has also narrowed. In adding a new element to
what it means to “constitute a felony violation of Section 186.22,” the Legislature added
a new element to a prior serious felony enhancement based on the crimes serious nature
as listed in section 1192.7, subdivision (c)(28). Under Estrada and its progeny, Miranda
is entitled to have this new definition apply when the trial court reconsiders his case on
remand.
Because the revised definition of “pattern of criminal gang activity” was not in
effect until 2022, the trial court entered its findings in 2021, and we are already
remanding this action for reconsideration of the third prior serious felony enhancement
based on the 2009 section 186.22, subdivision (a), conviction, we decline Miranda’s
invitation to consider whether the evidence was insufficient to satisfy the current
definition. Instead, we direct the trial court to apply the recently amended definition
when it reconsiders whether the prior conviction was for a serious felony under section
667, subdivision (a).
The People’s efforts to convince us that defendant should not be able to argue the
amended version of section 186.22 should not apply here are not persuasive.
First, the People point to section 667, subdivision (d), which states, “[t]he
determination of whether a prior conviction is a prior felony conviction for purposes of
subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and
36
is not affected by the sentence imposed unless the sentence automatically, upon the initial
sentencing, converts the felony to a misdemeanor.” “Read in context, the ‘determination’
at issue must be whether the prior conviction ‘is a prior felony conviction’ rather than a
conviction for a misdemeanor. This determination is made ‘upon the date’ of the
conviction, so subsequent events, such as a reduction to a misdemeanor . . . , will not
affect its classification as a felony conviction.” (People v. Sipe (1995) 36 Cal.App.4th
468, 478.) This is not a statement that a defendant convicted under a statute in place in
2009 cannot benefit from a narrower definition of the crime under that statute when
considering if that crime it qualifies as a serious felony for purposes of a section 667,
subdivision (a), sentencing enhancement.
The People’s second argument is much like the argument they raised in arguing
Strike ought not to apply. They argue Estrada is only meant to apply to nonfinal
judgements, and they treat Miranda’s argument as an attack on the finality of 2009
conviction. But, as we stated above, in raising this argument, Miranda is not arguing that
the conviction was incorrect at the time it was entered; rather he is functionally arguing
that what he was convicted of at the time does not satisfy the elements that must be met
to impose a section 667, subdivision (a), sentencing enhancement in the current action.
In light of the Legislative findings about the problems with the prior version of section
186.22, to not allow persons with convictions under the prior version of the law to utilize
the newer version when considering whether to enhance their sentences under section
667, subdivision (a), seems particularly harsh: it exposes those who having already
obtained final sentences under a version of the law that our Legislature has found was
inequitably applied, resulted in severe penalties, and punished a wider swath of behavior
than originally intended (Stats. 2021, ch. 699, § 2, subds. (d)(1), (g), & (i)), to harsher
sentencing enhancements than those who have engaged in similar acts after the law was
amended.
37
4. Treatment on Remand
“[R]eversal of a true finding on a prior conviction allegation does not prevent
retrial of that enhancement. (People v. Barragan (2004) 32 Cal.4th 236, 241 [].) As
explained in Gallardo, the appropriate remedy is to remand the case to the trial court for
a new hearing. . . . (Gallardo, supra, 4 Cal.5th at p. 139.)” (Strike, supra, 45 Cal.App.5th
at p. 154.) Thus, on remand, the trial court may hold a new hearing on whether the 2009
section 186.22, subdivision (a), conviction satisfied all the required elements to qualify as
a prior serious felony as contemplated under section 667, subdivision (a).
5. Section 186.22 as a Strike
Above, we found that the record does not contain a truth finding on the strike
allegations and that the strike sentences must therefore be vacated. However, we noted
this finding was without prejudice as to the trial court’s ability to correct the record of its
findings if it is clearly shown the omission was only a clerical error. If the trial court
were to revise its records to reflect an affirmative finding of truth as to the strike on
priors, we observe that the above reasoning as to why substantial evidence does not
support a finding that the prior section 186.22, subdivision (a), conviction was a serious
felony would support a like holding that substantial evidence does not support a finding
that the conviction was a strike. As such, if the trial court amends its judgment to reflect
it did, in fact, find true that in 2009 Miranda was convicted under section 186.22,
subdivision (a), and that conviction was for a strike, that finding would need to be
vacated and subject to further evidence on remand.
III
The Trial Court Can Exercise its Section 654 Discretion on Remand
At the time the trial court sentenced the defendants, section 654, subdivision (a)
(2021), required trial courts to impose a sentence under the provision providing for the
38
longest sentence when an act was punishable under more than one provision. The trial
court would then stay punishments for the same act available under other provisions.
(See § 654, subd. (a) (2021).) After the trial court entered its judgment, the California
Legislature passed Assembly Bill 518 (2021-2022 Reg. Sess.) (Assembly Bill 518),
amending section 654. Section 654 now grants trial courts the discretion to choose which
sentencing provision to apply when the courts sentence defendants who commit criminal
acts that are punishable under more than one criminal provision—i.e., trial courts are no
longer obligated to impose the sentence under the provision that contains the longest
sentence and may, instead, stay the term of the longer sentence and apply an applicable
provision that contains a shorter term. (Stats. 2021, ch. 441, § 1 (Assembly Bill 518).)
Assembly Bill 518’s amendments to section 654 took effect on January 1, 2022, while
this appeal was still pending. (Ibid.; see also Cal. Const., art. IV, § 8, subd. (c), par. (1).)
Miranda and Farias both argue that the amended version of section 654 applies to
their sentences, and this matter should be remanded for the trial court to exercise its
discretion under the amended section 654. The Attorney General agrees that the
amended version of section 654 applies to both defendants, but argues that remand is
inappropriate because the record indicates the trial court would not exercise its discretion
to stay the greater term and impose lesser sentences on the defendants. We agree that the
amended version of section 654 applies, and will allow the trial court to reconsider its
sentence to exercise its new discretion on remand.
“Because Assembly Bill 518 was enacted while defendant’s appeal was not yet
final and it provides the trial court new discretion to impose a lower sentence, defendant
is entitled to its ameliorative benefit.” (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
Under these circumstances, remand is required “unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had been aware
that it had such discretion.’ [Citations.]” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391.) Here, we need not reach the issue of whether remand is required to allow the trial
39
court to exercise its discretion under section 654, because we are already remanding for
the consideration of other factors related to the sentence. (See People v. Buycks (2018)
5 Cal.5th 857, 893 [“[W]hen part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed circumstances.’ [Citations.]”].)
DISPOSITION
We do not foreclose the possibility that the absence of strike findings on the
minute order and abstract of judgment is the result of a clerical error, and, if it can be
clearly shown that the omission of those findings is result of a clerical error, the trial
court may correct its judgment nunc pro tunc to more clearly state its strike findings.
As to Farias, if it cannot be clearly shown that the mistake was clerical in nature,
the trial court must vacate his sentence and resentence him without applying the Three
Strikes law. If it can be clearly shown the error was clerical and the trial court makes
appropriate clarifications to its judgment, it may continue to apply the three strikes law to
Farias, treating each of his prior convictions as a strike. The trial court may also
reconsider Farias’s sentence under the current version of section 654.
As to defendant Miranda, the trial court must vacate its finding that the 2009
section 186.22, subdivision (a), conviction was for a serious felony, and it may retry it
applying Rodriguez and recent amendments to section 186.22, then apply those findings
in sentencing Miranda. If it can be clearly shown that the omission of strike findings
regarding the recidivist allegations was clerical in nature and the trial court opts to correct
the record to more definitively state these findings, on remand the trial court would still
need to vacate the strike finding as to the 2009 section 186.22, subdivision (a),
conviction, and the court would have the ability to reconsider if the crime was a strike. If
it cannot be clearly shown that the omission of explicit strike findings on all of Miranda’s
priors was clerical in nature, the trial court must resentence Miranda without applying the
40
Three Strikes law. On remand, the trial court may exercise its discretion under the
current version of section 654.
HULL, J.
We concur:
ROBIE, Acting P. J.
BOULWARE EURIE, J.
41
Filed 6/14/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C094195
Plaintiff and Respondent, (Super. Ct. No. 18FE021180)
v. ORDER CERTIFYING
OPINION FOR
JESSIE FARIAS et al., PUBLICATION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Sacramento County, Donald J.
Currier, Judge. Remanded with directions.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant Jesse Farias.
Gillian Black, under appointment by the Court of Appeal, for Defendant and
Appellant Fernando Miranda.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christofferssen,
Robert C. Nash, Deputy Attorney General, for Plaintiff and Respondent.
1
THE COURT:
The opinion in the above-entitled matter filed on May 26, 2023, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered
BY THE COURT:
ROBIE, Acting P. J.
HULL, J.
BOULWARE EURIE, J.