The opinion
Filed 1/23/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084952
Plaintiff and Respondent,
(Super. Ct. No. BF185179A)
v.
FRANCISCO GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
William Safford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina
Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Francisco Gonzalez was convicted on three counts of possession of a
firearm by a person previously convicted of a felony (Pen. Code,1 § 29800, subd. (a)(1);
counts 3, 4 & 5), possession of methamphetamine while armed with a loaded and
operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 6), and two counts of
possession of ammunition by a person previously convicted of a felony (§ 30305, subd.
(a)(1); counts 7 & 8). In a bifurcated trial, the court found defendant was convicted in
2002 of a violation of former section 12021, subdivision (c)(1), with a gang enhancement
pursuant to section 186.22, subdivision (b)(1), which offense constituted a “strike” within
the meaning of the “Three Strikes” law. (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)).
The court also found true four factors in aggravation: (1) defendant had prior convictions
as an adult that were numerous and of increasing seriousness (Cal. Rules of Court,2
rule 4.421(b)(2)); (2) defendant served a prior prison term (rule 4.421(b)(3));
(3) defendant was on probation or parole when the crime was committed
(rule 4.421(b)(4)); and (4) defendant’s prior performance while on probation or parole
was unsatisfactory (rule 4.421(b)(5)).
The court sentenced defendant on count 3 to a six-year term, calculated by
doubling the upper term due to the strike; on each of counts 4 and 5 to consecutive 16-
month terms, calculated by doubling one-third of the middle term due to the strike; on
count 6 to an eight-year term, calculated by doubling the upper term due to the strike, and
stayed pursuant to section 654; and on each of counts 7 and 8 to a six-year term, and
stayed pursuant to section 654.
On appeal, defendant contends the court’s strike finding is not supported by
substantial evidence that his prior conviction involved conduct prohibited by section
1 Undesignated statutory references are to the Penal Code.
2 All further references to rules are to the California Rules of Court.
2.
186.22, as amended by Assembly Bill No. 333 (2021-2022 Reg. Sess.), statutes 2021,
chapter 699 (Assembly Bill No. 333). He further contends the imposition of upper-term
sentences based on the specified factors in aggravation was unauthorized. We reject
defendant’s contentions and affirm.
FACTUAL BACKGROUND
As the facts underlying the offenses have minimal relevance to the issues on
appeal, we summarize them only briefly. Law enforcement contacted defendant at a car
wash on the afternoon of December 29, 2020. Inside defendant’s vehicle, deputies
located two revolvers containing live ammunition. In the trunk, deputies located a
“sawed off shotgun.” In defendant’s right front pocket, they located 1.94 grams of
methamphetamine.
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTS THE PRIOR STRIKE FINDING
Defendant contends substantial evidence does not support the prior strike finding.
More specifically, he contends the determination of whether his prior conviction
constituted a strike must be made with reference to current law. He points out that
section 186.22 was amended after his prior conviction, the amendments took effect
before his current conviction became final, and the evidence presented in the trial court
does not establish his prior conviction involved conduct prohibited under the amended
law. Thus, he contends, the evidence does not support a finding that he committed a
strike within the meaning of the Three Strikes law.
We conclude defendant’s prior conviction constituted a strike on the date of that
prior conviction and therefore remains one today.
3.
A. Additional Background
The information alleged defendant suffered one prior strike based on a 2002
conviction for violation of former section 12021, subdivision (c)(1),3 with a gang
enhancement pursuant to section 186.22, former subdivision (b)(1).
The court conducted a bifurcated court trial on the prior strike allegation and
received into evidence a “certified RAP sheet” and a “certified 969b packet” reflecting
the conviction. Based on that evidence, the court found defendant was convicted of a
violation of former section 12021, subdivision (c)(1) with an enhancement pursuant to
section 186.22, subdivision (b)(1), and that the offense “does in fact qualify as what’s
commonly referred to as a strike prior.”
B. Standard of Review
Although phrased as a challenge to the sufficiency of the evidence, defendant’s
claims ultimately present questions of statutory interpretation.
“The proper interpretation of a statute is a question of law we review de novo.
[Citations.] ‘ “ ‘ “As in any case involving statutory interpretation, our fundamental task
here is to determine the Legislature’s intent so as to effectuate the law’s purpose.
[Citation.] We begin by examining the statute’s words, giving them a plain and
commonsense meaning.” ’ ” ’ [Citation.] ‘ “[W]e look to ‘the entire substance of the
statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]’
[Citation.] That is, we construe the words in question ‘ “in context, keeping in mind the
nature and obvious purpose of the statute . . . .” [Citation.]’ [Citation.] We must
harmonize ‘the various parts of a statutory enactment . . . by considering the particular
clause or section in the context of the statutory framework as a whole.’ ” ’ ” (People v.
Lewis (2021) 11 Cal.5th 952, 961.) “If there is no ambiguity in the language, we presume
3 Former section 12021, subdivision (c)(1) was recodified as section 29805.
(Stats. 2010, ch. 711, § 6.76.)
4.
the Legislature meant what it said and the plain meaning of the statute governs.” (People
v. Snook (1997) 16 Cal.4th 1210, 1215.) The same principles that govern our
interpretation of statutes enacted by the Legislature apply to those adopted by the
electorate. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)
C. The Three Strikes Law
“The Three Strikes law was ‘[e]nacted “to ensure longer prison sentences and
greater punishment for those who commit a felony and have been previously convicted of
serious and/or violent felony offenses” [citation], [and] “consists of two, nearly identical
statutory schemes.” ’ [Citation.] In March 1994, the Legislature codified its version of
the Three Strikes law by adding subdivisions (b) through (i) to Penal Code section 667.
A ballot initiative [Proposition 184] in November of the same year added a new
provision, section 1170.12. These two parallel enactments have reposed, somewhat
cumbersomely, in the code since that time.” (People v. Henderson (2022) 14 Cal.5th 34,
43, fns. omitted.)
Both section 667 and section 1170.12 provide that “[any] offense defined . . . in
subdivision (c) of [s]ection 1192.7 as a serious felony” qualifies as a prior strike.
(§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Pursuant to the Three Strikes law, a felony
offense that “would also constitute a felony violation of [s]ection 186.22” qualifies as a
strike. (§ 1192.7, subd. (c)(28); see §§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Gang-
enhanced felonies (see § 186.22, subd. (b)(1)) also qualify as strikes. (People v. Briceno
(2004) 34 Cal.4th 451, 462.)
Section 1170.12 also provides that “[t]he determination of whether a prior
conviction is a prior serious . . . felony conviction for purposes of this section shall be
made upon the date of that prior conviction.” (§ 1170.12, subd. (b)(1).) Section 667,
subdivision (d)(1), contains a similar provision with slightly different wording: “The
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.”
5.
Many courts have interpreted these provisions to mean that the question of whether a
prior offense constitutes a strike is determined by whether the prior offense qualified as a
strike at the time of the prior conviction. (E.g., People v. Green (1995) 36 Cal.App.4th
280, 283 [holding that, pursuant to § 667, subd. (d)(1), “the court is presently required to
look backward to see if, at the time of the conviction of the past offense, such past
offense qualified as a serious or violent offense under section 1192.7, subdivision (c) or
section 667.5, subdivision (c)”]; People v. Anderson (1995) 35 Cal.App.4th 587, 600
[“Clearly, the Legislature intended that the qualifying status of a conviction would be
fixed upon the date of the prior conviction, so that no subsequent actions . . . could alter
that status.”]; People v. Reed (1995) 33 Cal.App.4th 1608, 1611 [“the determination
whether an offense is a ‘strike’ must be made with reference to the date of the prior
conviction”].)
Also relevant to our analysis are the so-called “lock-in” provisions, which set the
effective date for determining qualifying offenses under the Three Strikes law. (See
Manduley v. Superior Court (2002) 27 Cal.4th 537, 578–579.) As originally enacted,
subdivision (h) of section 667 provided that “[a]ll references to existing statutes in
subdivisions (c) to (g), inclusive, are to statutes as they existed on June 30, 1993.” (Stats.
1994, ch. 12, § 1.) An uncodified portion of Proposition 184 similarly provided that
“[a]ll references to existing statutes [in section 1170.12] are to statutes as they existed on
June 30, 1993.” (Prop. 184, as approved by voters, Gen. Elec. (Nov. 8, 1994), § 2, eff.
Nov. 9, 1994.) “Thereafter, the Legislature classified additional crimes as serious or
violent, but did not amend the date provision to add convictions for these crimes for use
as strike priors under the Three Strikes law. Therefore, these additional serious or violent
crimes that resulted in conviction did not qualify as strike prior convictions despite the
fact that the current offense was committed after these particular prior offenses had been
classified as serious or violent.” (People v. Johnson (2015) 61 Cal.4th 674, 683–684.)
“In 2000, when Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of
6.
1998, reclassified certain felonies as serious or violent, it addressed this issue by also
adding sections 667.1 and 1170.125 to the Penal Code. These statutes provided that, with
respect to offenses committed on or after the effective date of Proposition 21, references
to existing statutes in the Three Strikes law were to the statutes as they existed on
March 8, 2000, the effective date of Proposition 21.” (Id. at p. 684.) “Similarly, when
Proposition 36 reformed the Three Strikes law, it amended sections 667.1 and 1170.125
to provide that, for offenses committed on or after its effective date, references in the
Three Strikes law to existing statutes were to the statutes as they existed on November 7,
2012, the effective date of Proposition 36.” (Ibid.)
D. Assembly Bill No. 333
Effective January 1, 2022, Assembly Bill No. 333 amended the language of
section 186.22 to modify the showing necessary to prove gang offenses and gang
enhancements. (Stats. 2021, ch. 669, § 3.) For example, Assembly Bill No. 333
narrowed the definition of “ ‘criminal street gang’ ” (Stats. 2021, ch. 699, § 3; see
§ 186.22, subd. (f)), modified the “ ‘pattern of criminal gang activity’ ” element of the
gang enhancement (Stats. 2021, ch. 699, § 3; see § 186.22, subd. (e)), and clarified that to
“benefit, promote, further, or assist” a gang “means to provide a common benefit to
members of a gang where the common benefit is more than reputational” (Stats. 2021,
ch. 699, § 3; see § 186.22, subd. (g)).
E. Relevant Case Law
Defendant argues Assembly Bill No. 333’s amendments to section 186.22 apply
retroactively to alter the strike status of his 2002 conviction. More specifically, he
contends the Three Strikes law requires the court, in determining whether a prior felony
constitutes a strike, to apply the law in existence at the time the current offense was
committed. Because his current offense was committed in 2020, but his conviction for
that offense is not yet final, he contends the determination of whether the prior offense
constitutes a strike requires proof that he committed a felony which would constitute a
7.
gang-related offense under the current version of section 186.22, as amended by
Assembly Bill No. 333.
Several recent cases have addressed this question. Additionally, our Supreme
Court has granted review to address this question.4 We review the existing cases in turn.
As in the instant case, the defendant in People v. Scott (2023) 91 Cal.App.5th
1176, 1179, review granted September 27, 2023, S280776 (Scott), argued there was
insufficient evidence his gang-enhanced prior felony constituted a strike due to the
amendments effectuated by Assembly Bill No. 333. The Court of Appeal noted the
Three Strikes law provides: “ ‘Notwithstanding any other law . . . : [¶] . . . The
determination of whether a prior conviction is a prior serious or violent felony conviction
for purposes of this section shall be made upon the date of that prior conviction . . . .’ ”
(Scott, at p. 1181.) The court explained: “In other words, ‘the Legislature intended that
the qualifying status of a conviction would be fixed upon the date of the prior conviction
. . . .’ [Citation.] This ‘mean[s] that the court is presently required to look backward to
see if, at the time of the conviction of the past offense, such past offense qualified as a
serious or violent offense . . . .’ [Citation.] It therefore does not matter if the definition
of a strike has subsequently changed.” (Id. at pp. 1181–1182.) The court noted that the
defendant’s prior conviction was “long since final” and “[w]hen it became final, it was a
4 In People v. Fletcher (2023) 92 Cal.App.5th 1374, review granted September 27,
2023, S281282 (Fletcher), our Supreme Court identified the issues to be briefed and
argued as follows:
“(1) Does Assembly Bill No. 333 amend the requirements for a true finding
on a prior strike conviction (Pen. Code, §§ 667, subds. (b)–(i) & 1170.12,
subds. (a)–(d)) and a prior serious felony conviction (Pen. Code, § 667,
subd. (a)), or is that determination made on ‘the date of that prior
conviction’? (See Pen. Code, §§ 667, subd. (d)(1) & 1170.12, subd. (b)(1).)
(2) Does Assembly Bill No. 333 (Stats. 2021, ch. 699), which modified the
criminal street gang statute (Pen. Code, § 186.22), unconstitutionally
amend Proposition 21 and Proposition 36, if applied to strike convictions
and serious felony convictions?”
8.
strike.” (Id. at p. 1184.) The court therefore concluded, “The fact that the Legislature
has changed the definitions of active gang participation and of a gang enhancement under
section 186.22 cannot change the status of defendant’s final . . . conviction as a strike
prior.” (Ibid.)
Another court recently agreed with Scott. In People v. Aguirre (2023) 96
Cal.App.5th 488, review granted January 10, 2024, S282840 (Aguirre), the People
alleged the defendant had suffered a prior strike conviction based on a 2021 conviction
for a gang-enhanced felony. (Id. at p. 491.) Finding no evidence to meet the new
elements of section 186.22 added by Assembly Bill No. 333, the trial court concluded the
conviction no longer qualified as a strike. The Court of Appeal disagreed, holding: “In
2012, the electorate passed Proposition 36, which provides that, for all offenses
committed on or after November 7, 2012, determining whether a prior conviction
qualifies as a serious felony conviction or ‘strike’ must be made ‘upon the date of that
prior conviction’ and based on the relevant statute ‘as [it] existed on November 7, 2012.’
[Citation.] These provisions fix or lock in the status of a conviction as a strike on the
date of the prior conviction. Assembly Bill No. 333 (2021-2022 Reg. Sess.) . . . did not
change that. A gang-enhanced felony committed before Assembly Bill No. 333’s
effective date still qualifies as a prior serious felony.” (Aguirre, at p. 491.)
Relatedly, in Fletcher, supra, 92 Cal.App.5th at page 1379, review granted, a
different panel of the same court that decided Scott held that, if Assembly Bill No. 333
was construed to apply to serious felonies and strike priors premised on violations of
section 186.22, it would constitute an improper legislative amendment of a ballot
initiative, specifically Proposition 36. The court noted that Proposition 36 defined a
serious felony for purposes of the Three Strikes law as “what constituted a serious felony
in 2012,” and thus determined Assembly Bill No. 333 could only apply if it satisfied
Proposition 36’s amendment requirements. (Fletcher, at p. 1381.) Because it did not
9.
satisfy those requirements, the court held it was not required to vacate the true findings
on prior serious felony or prior strike convictions. (Id. at p. 1382.)
In contrast, an appellate court reached a seemingly different conclusion in People
v. Farias (2023) 92 Cal.App.5th 619, review granted September. 27, 2023, S281027
(Farias). The appeal involved two defendants, both of whose sentences involved prior
serious felonies under section 667, subdivision (a), and strikes under sections 667,
subdivision (e)(2) and 1170.12, subdivision (c)(2). (Farias, at p. 626.) The appellate
court noted the record confirmed the trial court found true all the serious felony
allegations under section 667, subdivision (a), but was silent as to whether the trial court
also found true the strike allegations. (Farias, at pp. 630–631, 635.) There was some
indication in the record that this may have been a clerical omission. (Id. at pp. 631–632,
637–638.) Nonetheless, the appellate court determined it was necessary to treat the
defendants as if the trial court had concluded the strike allegations were not true and to
vacate the sentence, but without prejudice to the trial court’s ability to correct the record
if it could be shown that the omission of a strike finding was a clerical error. (Id. at
p. 626.)
One of the prior serious felony and strike allegations for one of the defendants in
Farias arose out of a 2009 conviction for participation in a street gang pursuant to section
186.22, subdivision (a). (Farias, supra, 92 Cal.App.5th at p. 628, rev. granted.) Thus,
the Court of Appeal proceeded to address whether these allegations were affected by
intervening changes to section 186.22. (Farias, at pp. 644–655.) The court first
addressed the status of the prior conviction as a serious felony pursuant to section 667,
subdivision (a), and noted that section 186.22, subdivision (a) had been narrowed by our
Supreme Court’s decision in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez).5
5 In Rodriguez, our Supreme Court held that a defendant could not be convicted of
violating section 186.22, subdivision (a) as a sole perpetrator. (Rodriguez, supra, 55
Cal.4th at p. 1128.)
10.
(Farias, at pp. 645–650.) On that basis, the court determined substantial evidence did not
support the trial court’s finding that the prior conviction constituted a prior serious felony
under section 667, subdivision (a). (Farias, at p. 648.) The court also noted that section
186.22 had been amended by Assembly Bill No. 333, and the amended version of section
186.22 would apply on remand. (Farias, at pp. 650–653.) Thus, the appellate court
directed the trial court on remand to “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).” (Id. at p. 653.)
In passing, the Farias court also noted that this holding would extend to the strike
allegation that was based on the prior gang participation felony, to the extent the trial
court was able to correct the record to show the omission of a strike finding was 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 [the defendant] 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.” (Farias, supra, 92 Cal.App.5th at pp. 653–654, rev. granted.)
F. Analysis
We agree with those courts that have concluded Assembly Bill No. 333 does not
change the status of a defendant’s conviction as a prior strike. The plain language of the
Three Strikes law compels the conclusion that the status of defendant’s prior conviction
as a strike was fixed upon the date of his prior conviction. (§ 1170.12, subd. (b)(1); see
§ 667, subd. (d)(1); see also Aguirre, supra, 96 Cal.App.5th at p. 491, rev. granted; Scott,
supra, 91 Cal.App.5th at p. 1181, rev. granted.) Defendant was convicted of his prior
offense in 2002. Because the gang-enhanced felony was a strike then (People v. Briceno,
11.
supra, 34 Cal.4th at p. 462; see § 1192.7, subd. (c)(28); see also §§ 667, subd. (d)(1),
1170.12, subd. (b)(1)), it remains so today.
Additionally, defendant was convicted of his current offenses on or after
November 7, 2012. Thus, for purposes of the Three Strikes law, the references to section
1192.7, subdivision (c) in sections 667 and 1170.12 are to that subdivision as it existed on
November 7, 2012. (§§ 667, subd. (h), 667.1, 1170.125; see People v. Johnson, supra, 61
Cal.4th at p. 684; Fletcher, supra, 92 Cal.App.5th at p. 1381, rev. granted [“the definition
of a serious felony for purposes of the Three Strikes law is what constituted a serious
felony in 2012”].) On November 7, 2012, defendant’s gang-enhanced felony qualified as
a serious felony. (§ 1192.7, subd. (c)(28).) Thus, on all relevant dates, defendant’s
conviction constituted a strike. Assembly Bill No. 333 did not change that status.
In his argument to the contrary, defendant relies in part on People v. Watts (2005)
131 Cal.App.4th 589 (Watts), and People v. Strike (2020) 45 Cal.App.5th 143 (Strike) to
argue the prosecution was required to submit proof, beyond a reasonable doubt, that his
prior conviction met the current elements of the gang-related allegation under section
186.22, subdivision (b). However, these cases are inapposite. The defendant in Watts
was convicted in 2000 for violation of former section 12031, subdivision (a)(2)(C), a
misdemeanor offense that became a felony when the perpetrator was an “ ‘active
participant in a criminal street gang,’ ” as defined in section 186.22. (Watts, at p. 592;
see former § 12031, subd. (a)(2)(C).) However, when the defendant was convicted in
2000, section 186.22 did not define “ ‘active participant in a criminal street gang.’ ”
(Watts, at p. 592.) Subsequent to the defendant’s prior conviction, our Supreme Court
determined in People v. Robles (2000) 23 Cal.4th 1106, 1115, that the phrase “ ‘active
participant in a criminal street gang,’ ” as used in former section 12031, subdivision
(a)(2)(C), was ambiguous, and ultimately construed it to require proof of all three
elements of the substantive gang offense described in section 186.22, subdivision (a).
(Robles, at p. 1115; see Watts, at p. 593.) Based on Robles, the defendant in Watts
12.
argued his prior conviction did not constitute a strike because his plea to the former
section 12031 violation did not constitute an admission of all the elements of section
186.22, subdivision (a).6 (Watts, at p. 594.) Because our Supreme Court had determined
the phrase “ ‘active participant in a criminal street gang,’ ” as used in former section
12031, subdivision (a)(2)(C), was ambiguous, the Court of Appeal concluded it could not
determine with certainty that the defendant’s pre-Robles plea admitted all the elements of
section 186.22, subdivision (a). (Watts, at pp. 596–597.) Accordingly, the court held the
record did not support a conclusion that the prior conviction was a strike. (Id. at p. 597.)
In Strike, the Court of Appeal considered whether the defendant’s prior conviction
for violation of section 186.22, subdivision (a) constituted a strike. (Strike, supra, 45
Cal.App.5th at p. 146.) Although the elements of felony gang participation in section
186.22, subdivision (a) had not changed between the defendant’s prior offense and
current offense, judicial interpretation of those elements had evolved. (Strike, at p. 146.)
Specifically, at the time of the defendant’s prior conviction, it was thought that a
defendant could be convicted of violating section 186.22, subdivision (a) as a sole
perpetrator. (Strike, at p. 146.) However, subsequent to our Supreme Court’s 2012
decision in Rodriguez, supra, 55 Cal.4th 1125, that was no longer the case. (Rodriguez,
at p. 1128; see Strike, at p. 146.) Rather, the high court held that section 186.22,
subdivision (a) required an active gang member to commit a felony offense with one or
more members of his gang. (Rodriguez, at pp. 1128, 1139.) In determining that the
defendant’s prior conviction constituted a strike, the trial court considered the facts
admitted by the defendant as the basis for his prior plea, as well as facts alleged in the
charging document regarding the offense. (Strike, at pp. 146–147.) The Court of Appeal
determined this constituted impermissible factfinding by the trial court and therefore
6 The parties agreed that section 1192.7, subdivision (c)(28) was the only basis by
which the offense could qualify as a strike. (Watts, supra, 131 Cal.App.4th at pp. 593,
596.)
13.
struck the prior strike finding. (Id. at p. 147.) The court remanded for retrial of the prior
conviction allegation, noting the prosecution could try to prove the defendant admitted
additional facts that would demonstrate the plea included an admission that the felony
offense was committed with another gang member. (Id. at p. 154.)
Both Watts and Strike were relied on by the defendant in Scott. (Scott, supra, 91
Cal.App.5th at pp. 1182–1183, rev. granted.) However, the Scott court determined that
neither case was controlling “because they dealt with changes in the judicial
interpretation of a statute, rather than amendments to the statute itself.” (Id. at p. 1183.)
The court explained: “ ‘Whenever a decision undertakes to vindicate the original
meaning of an enactment, putting into effect the policy intended from its inception,
retroactive application is essential to accomplish that aim. [Citation.]’ [Citation.]
Accordingly, in Robles and Rodriguez, when the Supreme Court interpreted section
186.22, subdivision (a), it declared not only what that section meant at that time, but what
it had always meant—including when the defendants in Watts and Strike suffered their
respective prior convictions.” (Id. at pp. 1183–1184, italics added.) We agree with Scott
that Watts and Strike are inapposite for this reason. Assembly Bill No. 333 is a statutory
amendment and was not declaratory of previously existing law. It does not alter our
understanding of the elements of the gang enhancement under the version of section
186.22 in effect at the time defendant’s prior conviction became final, and therefore
cannot change the status of defendant’s prior conviction as a prior strike.7
We find defendant’s reliance on Farias equally unpersuasive. The Farias court
did not meaningfully analyze the applicability of Assembly Bill No. 333 to the prior
7 We also agree with Scott that Watts and Strike did not consider the relevant
language of the Three Strikes law, and specifically the mandate that “[t]he determination
of whether a prior conviction is a [strike] shall be made upon the date of that prior
conviction.” (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1); see Scott, supra, 91
Cal.App.5th at p. 1184, fn. 4, rev. granted.)
14.
strike finding. (Farias, supra, 92 Cal.App.5th at pp. 653–654, rev. granted.) Nor did the
Farias court consider the “lock-in” provisions of the Three Strikes law, which do not
apply to prior serious felony enhancements (§§ 667, subd. (h), 667.1, 1170.125; see
Aguirre, supra, 96 Cal.App.5th at p. 497), or the language of section 1170.12,
subdivision (b)(1), which provides that, for purposes of the Three Strikes Law, “[t]he
determination of whether a prior conviction is a prior serious or violent felony conviction
for purposes of this section shall be made upon the date of that prior conviction.”8
We also reject defendant’s argument that the plain language of the Three Strikes
law compels the conclusion that prior strike determinations were intended to be made
with reference to current law. Defendant contends section 1192.7, subdivision (c)(28) is
“[p]hrased prospectively,” inasmuch as it refers to an offense that “would also constitute
a felony violation of [s]ection 186.22.”9 Thus, he argues, section 1192.7, subdivision
(c)(28) was not intended to “broadly capture [prior] fixed points in time” but rather to
define the offenses by their present terms. He also contends that the list of qualifying
offenses contained in section 1192.7, subdivision (c) can be divided into three categories:
provisions which describe conduct, provisions which refer to a statutory definition, and
hybrid provisions that refer to both conduct and a statutory definition. The “hybrid”
8 We acknowledge the Farias court did address the somewhat differently worded
language of section 667, subdivision (d)(1), which provides, “ ‘[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 is not affected by
the sentence imposed unless the sentence automatically, upon the initial sentencing,
converts the felony to a misdemeanor.’ ” (Farias, supra, 92 Cal.App.5th at p. 652, rev.
granted.) The court held this language merely governs the determination of “ ‘whether
the prior conviction “is a prior felony conviction” rather than a conviction for a
misdemeanor.’ ” (Ibid., quoting People v. Sipe (1995) 36 Cal.App.4th 468, 478.) As we
have noted above, other courts have interpreted section 667, subdivision (d) more
broadly. (E.g., People v. Green, supra, 36 Cal.App.4th at p. 283; People v. Anderson,
supra, 35 CalApp.4th at p. 600; People v. Reed, supra, 33 Cal.App.4th at p. 1611.)
9 We disagree that the verb “would,” as used in section 1192.7, subdivision
(c)(28), is prospective or is used in the future tense.
15.
phrasing of section 1192.7, subdivision (c)(28), he contends, permits us to interpret that
subdivision to apply only to current law. Once again, however, this argument fails to
address the provisions of the Three Strikes law, discussed above, which expressly guide
us in determining the relevant date for determining whether a prior conviction constitutes
a strike.
In sum, Assembly Bill No. 333 does not apply to alter the status of defendant’s
prior strike conviction. Defendant does not dispute that substantial evidence supports a
finding that his prior conviction constituted a strike under the law as it existed prior to
Assembly Bill No. 333. Accordingly, substantial evidence supports the court’s finding
that defendant’s prior gang-enhanced felony constituted a strike.
II. THE COURT HAD AUTHORITY TO IMPOSE AN AGGRAVATED TERM
After finding true four factors in aggravation relating to defendant’s criminal
history, the court sentenced defendant to upper-term sentences on counts 3, 6, 7, and 8.
Defendant argues that, in imposing an upper-term sentence, the court may rely only on
factors in aggravation relating to the crime, and not on factors relating to the defendant,
such as his criminal history.10 Specifically, he contends the “rule-based” factors set forth
in rule 4.421(b) cannot justify “an upward departure from the presumption of middle term
sentencing.” He further argues rule 4.421(b) constitutes an unlawful delegation of the
Legislature’s authority to define punishments. We reject both contentions in turn.
10 The People argue defense counsel’s failure to object to the trial court’s reliance
on these factors in the trial court forfeits this claim on appeal. Defendant contends he is
challenging an illegal sentence, which challenge is not subject to forfeiture. However, to
the extent the claim is forfeited, defendant claims constitutionally ineffective assistance
of counsel. We decline to decide whether defendant forfeited this claim and instead
exercise our discretion to adjudicate its merits in light of defendant’s claim of ineffective
assistance of counsel. (See People v. Marlow (2004) 34 Cal.4th 131, 150 [Even where an
issue has been forfeited, if defendant “asserts his counsel thereby rendered ineffective
assistance . . . we turn to the merits of the claim.”].)
16.
A. Additional Background
The information alleged defendant (1) had prior convictions as an adult that were
numerous and of increasing seriousness (rule 4.421(b)(2)); (2) served a prior prison term
(rule 4.421(b)(3)); (3) was on probation or parole when the crime was committed
(rule 4.421(b)(4)); and (4) had prior unsatisfactory performance while on probation or
parole (rule 4.421(b)(5)).
When the court conducted a bifurcated court trial on the prior strike allegation, it
also considered these four factors in aggravation. The court admitted the following
evidence: defendant’s “certified RAP sheet”; a “certified 969b packet” reflecting
defendant’s 2002 conviction for violation of former section 12021, subdivision (c)(1),
with an enhancement under section 186.22, former subdivision (b)(1); a “certified 969b
packet” reflecting defendant’s 2010 conviction for violation of section 245, subdivision
(a)(1); a “certified court docket” reflecting that defendant violated his parole in 2014; a
“certified court docket” reflecting that defendant violated his post-release community
supervision in 2016; a “certified court docket” and a “certified 969b packet” reflecting
that defendant was convicted in 2017 for violation of section 69; a “certified court
docket” reflecting defendant violated his post-release community supervision in 2017; a
“[c]ertified court docket” reflecting defendant violated his post-release community
supervision in 2020; and law enforcement testimony reflecting that defendant was on
probation at the time the offenses in the instant case occurred.
Based on the foregoing, the trial court found all four factors in aggravation true
beyond a reasonable doubt. At sentencing, the court noted there were no circumstances
in mitigation and four circumstances in aggravation. The court stated: “I do agree that
the upper term is appropriate and that’s based on several factors including the California
Rules of Court factors I just mentioned, the four different aggravating factors, and for that
reason . . . the upper term is completely warranted based on those aggravating factors I
mentioned, the four different ones, . . . and the lack of any mitigating factors.”
17.
B. Section 1170, Subdivision (b)
Section 1170, subdivision (b) governs imposition of a judgment of imprisonment
when a statute specifies three possible terms. Prior to 2007, section 1170, subdivision (b)
set the middle term as the presumptive term, but authorized the trial court to impose the
upper term if it found circumstances in aggravation. (§ 1170, former subd. (b).) The trial
court was required to set forth on the record the facts supporting imposition of the upper
term, and those facts were required to be established by a preponderance of the evidence.
(Ibid.; former rule 4.420(b).) However, in 2007, the United States Supreme Court
determined this sentencing scheme was unconstitutional because, “under the Sixth
Amendment, any fact [other than a prior conviction] that exposes a defendant to a greater
potential sentence must be found by a jury, not a judge, and established beyond a
reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v.
California (2007) 549 U.S. 270, 281; see id. at pp. 288–289.)
In response to Cunningham, the California Legislature amended section 1170,
subdivision (b) to eliminate the presumption for the middle term and to instead provide
that “the choice of the appropriate term shall rest within the sound discretion of the
court.” (Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007, as urgency legislation.) The intent of
this urgency legislation was to “maintain stability in California’s criminal justice system
while the criminal justice and sentencing structures in California sentencing [were] being
reviewed.” (Stats. 2007, ch. 3, § 1.) This statutory language providing trial courts broad
discretion to choose within the sentencing triad remained intact until January 1, 2022.
(See Stats. 2007, ch. 3, § 2; see also Stats. 2020, ch. 29, § 15.)
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended
section 1170, subdivision (b), to provide: “When a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2).” (Id., subd. (b)(1).) Subdivision (b)(2) in turn
18.
provides, “The court may impose a sentence exceeding the middle term only when there
are circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true beyond a reasonable
doubt at trial by the jury or by the judge in a court trial. . . .” Subdivision (b)(3) creates
an exception to this requirement: “Notwithstanding paragraphs (1) and (2), the court may
consider the defendant’s prior convictions in determining sentencing based on a certified
record of conviction without submitting the prior convictions to a jury.”
A trial court’s sentencing decisions are reviewable for abuse of discretion.
(People v. Panozo (2021) 59 Cal.App.5th 825, 837.) “An abuse of discretion is found
where the court ‘relies upon circumstances that are not relevant to the decision or that
otherwise constitute an improper basis for decision.’ ” (Ibid.; accord, People v. Carmony
(2004) 33 Cal.4th 367, 378 [trial court abused its sentencing discretion when it
“considered impermissible factors”].)
C. The Court Was Permitted To Rely on Defendant’s Prior Convictions
Defendant contends his sentence could exceed the middle term only if justified by
“circumstances in aggravation of the crime.”11 (§ 1170, subd. (b)(2).) He contends the
prior conviction factors relied on by the trial court constituted factors “ ‘relating to the
defendant’ ” (italics added), and not “circumstances in aggravation of the crime,” and
therefore could not justify imposition of upper-term sentences. He contends section
1170, subdivision (b)(3), which permits consideration of a defendant’s prior convictions
in sentencing, applies only after the court has determined whether “ ‘circumstances in
11 Defendant contends, “This is a clear match for California Rules of Court, rule
4.421(a), which defines a subset of ‘[c]ircumstances in aggravation’ which are classified
as ‘[f]actors relating to the crime.’ ” At least one Court of Appeal has expressly held that
“ ‘circumstances in aggravation,’ ” as used in section 1170, subdivision (b)(2), includes
the factors listed in rule 4.421(a). (Chavez Zepeda v. Superior Court (2023) 97
Cal.App.5th 65, 70–71.)
19.
aggravation of the crime’ ” authorize an upper-term sentence. In other words, defendant
contends section 1170, subdivision (b)(2) “sets a threshold requirement which must be
met before the upper term becomes an available option.” Thereafter, “[i]f all three terms
are available, the court can consider prior convictions in making its decision; if the only
two sentencing options are the middle and lower terms, the court can use prior
convictions in selecting between the two.”
We disagree with defendant’s interpretation of section 1170 and therefore reject
this argument. As we have already stated, subdivision (b)(3) provides: “Notwithstanding
paragraphs (1) and (2), the court may consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction without submitting the
prior convictions to a jury.” (Italics added.) “[N]otwithstanding” means “[d]espite; in
spite of.” (Black’s Law Dictionary (11th ed. 2019), p. 1281.) Thus, by its plain
language, section 1170, subdivision (b)(3) applies, despite the limitations set forth in
section 1170, subdivision (b)(1) and (2), and authorizes a court to impose an upper-term
sentence based on a defendant’s prior convictions.
D. Nondelegation Doctrine
Defendant argues that interpreting section 1170, subdivision (b) to refer to factors
listed in rule 4.421 violates the nondelegation doctrine. Our Supreme Court rejected this
argument in People v. Wright (1982) 30 Cal.3d 705 (Wright).
“The legislative branch of government, although it is charged with the formulation
of policy, properly may delegate some quasi-legislative or rulemaking authority to
administrative agencies.” (Carmel Valley Fire Protection Dist. v. State of California
(2001) 25 Cal.4th 287, 299.) However, “[a]n unconstitutional delegation of legislative
power occurs when the Legislature confers upon an administrative agency unrestricted
authority to make fundamental policy decisions.” (Wright, supra, 30 Cal.3d at p. 712.)
Thus, “[t]he Legislature must make the fundamental policy determinations, but after
declaring the legislative goals and establishing a yardstick guiding the administrator, it
20.
may authorize the administrator to adopt rules and regulations to promote the purposes of
the legislation and to carry it into effect.” (Id. at p. 713.)
Article VI, section 6 of the California Constitution grants the Judicial Council
authority to “adopt rules for court administration, practice and procedure.” (Cal. Const.,
art. VI, § 6, subd. (d).) Additionally, section 1170.3, subdivision (a)(2) directs the
Judicial Council to “promote uniformity in sentencing under [s]ection 1170” by adopting
rules “providing criteria for the consideration of the trial judge at the time of sentencing
regarding the court’s decision to: [¶] . . . [¶] . . . [i]mpose the lower, middle, or upper
prison term.” (§ 1170.3, subd. (a)(2).)
In Wright, our Supreme Court considered whether the legislative direction for the
Judicial Council to adopt former rules 421 and 423, the predecessors to rules 4.421 and
4.423, constituted an invalid delegation of legislative power. (Wright, supra, 30 Cal.3d at
p. 709.) The high court concluded it did not. (Id. at pp. 712–714.) The court explained:
“[T]he Legislature made the fundamental policy decision that terms were to be fixed by
choosing one of the alternatives on the basis of circumstances relating to the crime and to
the defendant. [Citation.] The Legislature directed the Judicial Council to adopt rules
establishing criteria for imposing the upper[, middle,] or lower terms in order to promote
uniformity. [Citation.] While promotion of ‘uniformity’ in some circumstances may not
provide a sufficient standard, the Legislature established the standard in the correlative
provision of Penal Code section 1170, [former] subdivision (b), providing that the criteria
be based on the absence or presence of aggravating or mitigating circumstances.” (Id. at
p. 713.) The court held these standards were “sufficiently precise in the circumstances.”
(Ibid.)
Defendant contends Wright is no longer controlling. He argues, “The ability of
the aggravating circumstances rule to pass constitutional muster in Wright was derived
entirely from its orientation as a creature of guidance and discretion. A rule purporting to
define aggravating circumstances for jury consideration would not survive a Wright
21.
analysis.” He contends “the Judicial Council lacks the authority to define punitive
enhancements for submission to a jury.”
However, defendant was not subject to an upper-term sentence based on factors
that were submitted to a jury. We are not called upon to resolve whether a rule
purporting to set forth aggravating factors for jury consideration constitutes a valid
delegation of legislative authority.12 Rather, in determining that an upper term was
authorized and warranted, the court, in the exercise of its discretion, properly considered
defendant’s prior convictions as factors relating to defendant pursuant to section 1170,
subdivision (b)(3) and rule 4.421(b). Wright expressly holds that the development of
these factors by the Judicial Council, and thus reliance on these factors by the court, does
not involve an unconstitutional delegation of power. (Wright, supra, 30 Cal.3d at
pp. 711–714.)
Accordingly, defendant’s contentions regarding the nondelegation doctrine are
without merit.
DISPOSITION
The judgment is affirmed.
DETJEN, Acting P. J.
WE CONCUR:
FRANSON, J.
MEEHAN, J.
12 Again, we note that at least one court has recently determined that section 1170,
subdivision (b)(2) refers to the aggravating factors listed in rule 4.421(a), and further
determined this reference does not violate separation of powers principles or constitute an
unconstitutional delegation of power. (Chavez Zepeda v. Superior Court, supra, 97
Cal.App.5th at pp. 70–71.)
22.