People v. Flores ( 2021 )

Filed 5/18/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL -- STATE OF CALIFORNIA
FOURTH DISTRICT
DIVISION TWO
THE PEOPLE, E072843
Plaintiff and Respondent,
v. (Super.Ct.No. RIF1402333)
CARL RAY FLORES, JR., ORDER MODIFYING OPINION
Defendant and Appellant.
[NO CHANGE IN JUDGMENT]
_______________________________________
THE COURT
The Court ORDERS the opinion modified by replacing the language in footnote 4 with
the following language instead:
Section 1170 is inapplicable because its relevant subdivisions address determinate
sentencing, and attempted murder receives an indeterminate sentence. (§ 1170, subds.
(a)-(c).) Section 190 is inapplicable because it provides the punishment for murder.
(Miranda, supra, 192 Cal.App.4th at p. 415.)
Except for this modification, which does not affect the judgment, the opinion is
unchanged.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
1
Filed 4/22/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072843
v. (Super.Ct.No. RIF1402333)
CARL RAY FLORES, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas Kelly, Judge.
Affirmed with directions.
Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
1
After hearing evidence that defendant Carl Ray Flores shot a man in the neck at
close range, a jury convicted him of attempted premeditated murder with a 25-year-to-life
gun enhancement. After trial, Flores admitted a prior serious felony, a prior prison term,
and two prior strike offenses, which made him a third strike offender and exposed him to
a life sentence under the “Three Strikes” law. (Pen. Code, §§ 667, subds. (c), (e)(2)(A),
unlabeled statutory citations refer to this code.) At sentencing, the judge struck the prison
prior and prior serious felony enhancements but nevertheless added them to the minimum
term of Flores’s life sentence, to reach a total indeterminate term of 69 years.
On appeal, Flores raises two routine sentencing issues and one new question about
the role of enhancements in third strike sentencing. If a trial court exercises its discretion
to strike an enhancement under section 1385 “in furtherance of justice,” may the
enhancement still be used to increase the minimum term of the defendant’s life sentence
under what is commonly called “Option 3” of third strike sentencing? (§ 667, subd.
(e)(2)(A)(iii).) We conclude the answer is no.
In cases involving Option 3, “the Three Strikes law uses enhancements in two
distinct ways: to calculate the minimum term of the indeterminate life sentence and to
add an additional, determinate term to be served before the indeterminate life sentence.”
(People v. Williams (2004) 34 Cal.4th 397, 403 (Williams).) Once a court exercises its
discretion to strike an enhancement under section 1385 for sentencing purposes, the
enhancement may no longer be used to increase punishment, whether as a separate
determinate term to be served before the life sentence or as a means of lengthening the
2
minimum term of the life sentence. As we’ll discuss, the judge in this case made the
additional error of adding the enhancements twice to the minimum term of Flores’s life
sentence.
The two other arguments Flores raises on appeal—that the judge erred by refusing
to strike or reduce the gun enhancement and treat his two prior strike convictions as a
single strike under People v. Vargas (2014) 59 Cal.4th 635 (Vargas)—lack merit. We
therefore remand for resentencing but affirm in all other respects.
I
FACTS
Flores is a member of the Moreno Valley Locos gang and goes by the name
Loquito. On May 31, 2014, the victim, Manley G. went to his friend Heather’s home to
collect a drug debt from a man named Moe. But before Manley could get the money,
another man, Frank, arrived to drive Moe someplace else. Angry that Frank was saving
Moe from paying up, Manley bashed in Frank’s front windshield and drove off. Manley’s
outburst brought the police to Heather’s, which did not sit well with Flores because her
home was a common hangout for his gang.
Later in the day, Manley was at another friend’s house when he received a call
from Heather. As he was on the phone with her, Flores pulled up and approached
Manley, armed with a .380-caliber handgun. Manley suspected Flores was angry with
him over the windshield incident. As he tried to explain his side of the story, Flores shot
him in the neck at point blank range and drove off.
3
Manley spent three days in the hospital and survived the shooting. The bullet
entered the left side of his neck and exited through his back. Shrapnel fragments from the
bullet were found in the soft tissue in his neck, as well as near his ribs and arteries. He
suffered loss of hearing in his left ear and numbness in both arms.
The jury convicted Flores of attempted premeditated murder (§§ 664(a), 187, 189)
and found he personally and intentionally discharged a firearm causing great bodily
injury (§ 12022.53, subd. (d)). Before sentencing, Flores admitted three prior felony
convictions: carjacking and attempted murder in 1999 and manufacturing a weapon in
prison in 2007. Both the carjacking and attempted murder convictions qualified as prior
strike offenses (§ 667, subds. (c) & (e)(2)(A)), but because they were tried in the same
proceeding, they supported only one prior serious felony conviction for purposes of the
five-year enhancement (§ 667, subd. (a)). Flores also admitted he served a prior prison
term (§ 667.5, subd. (b)) for the carjacking and attempted murder convictions.
1
Flores filed a Romero motion before sentencing, asking the judge to treat his
carjacking and attempted murder convictions as a single strike offense under Vargas
because they arose from the same incident and involved the same victim. The judge
denied the motion, concluding the two offenses arose from distinct acts with different
criminal objectives. The judge also declined Flores’s request to strike or reduce the gun
enhancement because of the violent and callous nature of the shooting. The judge
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4
sentenced him to a total of 69 years to life under Option 3 of the Three Strikes law. (§
667, subd. (e)(2)(A)(iii).)
II
ANALYSIS
A. The Gun Enhancement
Section 12022.53 provides three different sentence enhancements for the personal
use of a firearm in the commission of certain offenses: a 10-year enhancement for
personal use (§ 12022.53, subd. (b)); a 20-year enhancement for personal and intentional
discharge (§ 12022.53, subd. (c)); and a 25-year-to-life enhancement for personal and
intentional discharge causing great bodily injury or death (§ 12022.53, subd. (d)), which
is the one at issue here.
Section 12022.53 enhancements used to be mandatory, but as of January 1, 2018,
trial judges have discretion to strike or dismiss them “in the interest of justice” under
section 1385. (§ 12022.53, subd. (h); see also People v. Pearson (2019) 38 Cal.App.5th
112, 116 (Pearson) [“Senate Bill No. 620 . . ., which added section 12022.53, subdivision
(h), gave the trial court discretion . . . ‘[to] strike or dismiss an enhancement otherwise
required to be imposed by this section”’].) Flores argues the judge abused his discretion
by refusing to strike his gun enhancement or reduce it to a lesser enhancement in section
12022.53.2 We disagree.
2 Although the judge accepted defense counsel’s argument that if he did not think
it appropriate to strike the 25-year-to-life enhancement entirely, he could reduce it to a
lesser section 12022.53 enhancement, we note there is a split of authority on this issue.
[footnote continued on next page]
5
We review the denial of a motion to dismiss an enhancement for abuse of
discretion and will not reverse the ruling unless it “‘is so irrational or arbitrary that no
reasonable person could agree with it.’” (Pearson, supra, 38 Cal.App.5th at p. 116;
People v. Carmony (2004) 33 Cal.4th 367, 375, 377.)
Here, when ruling on Flores’s motion, the judge explained, “I don’t feel that I
should exercise discretion to [strike or] lessen that 25 to life [enhancement] because this
was a shot right through the neck, and I can’t imagine anything more serious. If it had
been just a couple centimeters one way or the other, this would have been a homicide.”
The judge also noted that Flores had been on parole for only about a month before
reoffending.
Flores argues the judge’s decision was irrational because he placed too much
weight on the seriousness of the injury and failed to recognize that even defendants who
kill their victims are eligible to have their firearm enhancements stricken under Senate
Bill No. 620. According to Flores, “Logically, one would be more lenient toward a
defendant who does not kill his victim, but here the court took the opposite and irrational
position, blaming appellant because he almost killed the victim.” This argument boils
(See, e.g., People v. Morrison (2019) 34 Cal.App.5th 217 [trial court may reduce gun
enhancement]; People v. Tirado (2019) 38 Cal.App.5th 637, review granted Nov. 13,
2019, S257658 [trial court may not reduce enhancement].) In People v. Yanez (2020) 44
Cal.App.5th 452, our court agreed with Tirado and concluded judges lack discretion
under sections 1385 or 12022.53 to impose a lesser enhancement. (Yanez, at pp. 556-
557.) In any event, because we conclude the judge did not abuse his discretion in
imposing the enhancement, declining to reduce the enhancement would not be error even
under the Morrison view.
6
down to a claim that defendants who don’t kill their victims should be treated with more
leniency than those who do.
But the law doesn’t reward sheer luck. The factors a trial court must consider
when determining whether to strike a gun enhancement “are the same . . . the trial court
must consider when handing down a sentence in the first instance.” (Pearson, supra, 38
Cal.App.5th at p. 117, citing Cal. Rules of Court, rules 4.410, 4.421 & 4.423.) Among
those factors are whether “‘[t]he crime involved great violence, . . . threat of great bodily
harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness’” and
whether ‘“[t]he defendant has engaged in violent conduct that indicates a serious danger
to society.”’ (Pearson, at p. 117, italics added.)
Contrary to Flores’s argument, none of these factors places any import on whether
the victim died from the defendant’s use of a gun. The focus, rightly so, is on the threat
of violence or injury and the degree of danger the defendant poses to the public. As such,
the trial judge acted well within his discretion when he focused on the seriousness of the
injury Flores inflicted and the high degree of callousness it takes to shoot someone in the
neck at close range over a minor transgression. And, given that Flores tried to kill the
victim after only recently having been released from prison for the very same offense, the
judge could reasonably conclude he posed a serious danger to the public. We uphold the
decision to impose the enhancement rather than dismiss or reduce it.
7
B. The Prior Strikes
Next, Flores argues the judge erred by denying his motion to treat his carjacking
and attempted murder convictions as a single strike under Vargas, which held that
multiple convictions “arising out of a single act against a single victim” count as only one
strike. (Vargas, supra, 59 Cal.4th at p. 637.) As we’ll explain, the judge properly
determined Vargas does not apply because Flores’s offenses were based on separate
criminal acts.
1. Facts
Because Flores pled guilty to the carjacking and attempted murder charges, the
following facts come from the victim’s preliminary hearing testimony in that case.
Around 3:30 a.m. on March 28, 1998, Flores and codefendant Joseph Marruffo asked the
victim to drive them to a minimart in San Jacinto so they could use the payphone. When
the victim reached the intersection where he planned to turn, Flores, who was in the front
passenger seat, told him to keep driving straight. From the backseat, Marruffo pulled out
a knife and pressed it against the victim’s torso. The victim drove until they came across
a dark alley next to an empty field, where Flores told him to pull over.
As Flores got out of the car and walked to the driver’s side, the victim locked his
door, took his wallet from the glove box, and considered whether to make a run for it. But
before he could do so, Marruffo grabbed his wallet and ordered him to unlock the door.
The victim complied, and Flores pulled him out of the car by his belt. As Flores searched
him for valuables, the victim noticed Flores also had a knife. After the search Marruffo
8
told Flores to kill the victim. Flores tried to stab him in the chest, but he twisted away and
the blade caught his arm instead. The victim fell down and was able to run off as Flores
got into the driver’s seat and drove away.
2. Analysis
As with the gun enhancement, a court may dismiss a prior strike conviction under
section 1385 “in furtherance of justice,” and we review a decision not to do so for abuse
of discretion. (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 161.)
Flores argues the judge should have treated the carjacking and attempted murder
convictions as a single strike under Vargas because the offenses “arose from the same
case and were part of an indivisible transaction, committed at the same time, against a
single victim.” Thus, he argues, the crimes were so “closely connected” they constitute a
single strike. This mischaracterizes Vargas.
In that case, the defendant had two prior strike convictions—carjacking and
robbery—that arose from the single act of forcibly taking the victim’s car. When the
defendant was later convicted of another felony, the trial court treated the convictions as
two separate strikes under the Three Strikes law. (Vargas, supra, 59 Cal.4th at p. 638.)
Our Supreme Court reversed the sentence, holding that a “single act against a single
victim” cannot supply the basis for more than one strike offense. (Id. at p. 637, italics
added.) The court explained that when a person commits a single act that violates
multiple provisions of the Penal Code, they do not pose a greater risk to society simply
9
because the Legislature has chosen to criminalize the act in different ways. (Vargas, at
p. 646.)
Vargas distinguished this “extraordinary” circumstance from the more common
situation where a defendant commits “multiple criminal acts . . . in a single course of
conduct.” (Vargas, supra, 59 Cal.4th at p. 648.) That’s what happened in People v.
Benson (1998) 18 Cal.4th 24, where the defendant’s two prior strike convictions (for
burglary and assault) arose from a single incident during which he entered his neighbor’s
apartment, forced her to the floor, and stabbed her repeatedly. (Id. at p. 27.) The Benson
court held the burglary and assault convictions could not be treated as a single strike
because, though there was only one incident, the defendant engaged in multiple criminal
acts during the incident, and the strike convictions were based on separate acts. (Id. at
pp. 28-31, 36, fn. 8.)
Flores is therefore wrong that a “close connection” between the offenses or the
fact they arose during the same incident against the same defendant triggers Vargas
treatment. It is the act, not the incident or course of conduct, that must be the same. And
here, Flores’s carjacking and attempted murder of the victim were clearly based on
separate acts. Flores completed the carjacking when he pulled the victim out of his car,
and he committed the attempted murder when he stabbed the victim sometime later, after
searching him and determining he had nothing else worth stealing. Unarmed and
outnumbered, the victim posed no danger to Flores or his codefendant. Flores could have
taken the car without trying to kill him, but he didn’t, and his two crimes posed two
10
different dangers to the public. The judge therefore properly declined to treat these
offenses as a single strike.
C. Sentencing Errors
The parties agree the judge miscalculated Flores’s sentence under the Three
Strikes law but disagree as to the impact that striking the prior serious felony
enhancement has on the sentence. As we’ll explain, enhancements may be added only
once to the minimum indeterminate term under Option 3, and enhancements that are
stricken may not be used to lengthen any aspect of the sentence.
We start by setting out the rules for third strike sentencing then turn to Flores’s
sentence.
1. Third strike sentencing
The Three Strikes law requires all third strike offenders to receive a life sentence
with the “minimum term” (the amount of time they must serve before becoming eligible
for parole) as the longest of three options. (§ 667, subd. (e)(2)(A); see also People v.
Dotson (1997) 16 Cal.4th 547, 550, 552 (Dotson).) In addition, the term for any
applicable enhancement is imposed as separate determinate term to be served before the
life sentence. (Williams, supra, 34 Cal.4th at p. 403.)
The three options for calculating the minimum term of the life sentence (the
“minimum indeterminate term” or simply the “minimum term”) are set out in section
667, subdivision (e)(2)(A). “Option 1” calculates the minimum term by tripling the term
that would otherwise apply to the offense. (§ 677, subd. (e)(2)(A)(i).) The minimum term
11
in “Option 2” is 25 years to life. (§ 677, subd. (e)(2)(A)(ii).) And “Option 3,” sometimes
referred to as the “traditional sentencing” option, calculates the minimum term using
normal determinate and indeterminate sentencing procedures, including enhancements.
Under Option 3, the minimum term is “the term determined by the court pursuant to
section 1170 for the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with section 1170) of Title 7 of Part 2, or any period
prescribed by Section 190 or 3046.” (§ 667(e)(2)(A)(iii).)
While the minimum terms under Options 1 and 3 will vary from case to case,
Option 2 “essentially acts as a default to ensure that the defendant’s indeterminate term
will always be a minimum of 25 years.” (Dotson, supra, 16 Cal.4th at p. 552.) Option 1
triples the term for the offense, and doesn’t include enhancements, whereas Option 3
does include enhancements but doesn’t multiply the base term for the offense by any
number. (Williams, supra, 34 Cal.4th at p. 403.) As such, Option 1 will usually be the
greatest “when the current crime is particularly serious, and thus carries a significant
sentence,” and Option 3 will generally yield the greatest minimum term “when the
defendant has an extensive criminal recidivist history, and hence there are numerous
applicable enhancements.” (Dotson, at pp. 552-553.)
Next, because the Three Strikes law provides that a defendant’s life sentence
“shall be served consecutive to any other term of imprisonment for which a consecutive
term may be imposed by law” (§ 667, subd. (e)(2)(B)) and shall be “in addition to any
other enhancement or punishment provisions which may apply” (§ 667, subd. (e)), the
12
court imposes any applicable enhancements as a separate determinate sentence to be
served before the life sentence. Thus, though it may seem counterintuitive, in cases where
Option 3 yields the longest minimum indeterminate term, enhancements are used twice—
“to calculate the minimum term of the indeterminate life sentence and to add an
additional, determinate term to be served before the indeterminate life sentence.”
(Williams, supra, 34 Cal.4th at p. 403.) Our Supreme Court has held that this dual use of
enhancements in Option 3 sentences does not run afoul of section 654’s rule against
double punishment. (Dotson, supra, 16 Cal.4th at pp. 557, 560; Williams, at p. 403.)
People v. Miranda (2011) 192 Cal.App.4th 398 (Miranda) is instructive for cases
like this that involve Option 3 sentencing on an attempted murder conviction. The
defendant in Miranda was convicted of attempted premediated murder; he also had a 25-
3
year-to-life gun enhancement and a one-year prison prior enhancement. (Id. at p. 417.)
As we’ve seen, Option 3 directs the trial court to calculate the minimum term by using
one of three sentencing provisions: (i) section 1170, including “any enhancement
applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2,” (ii)
section 190, or (iii) section 3046. (§§ 667, subd. (e)(2)(A)(iii).)
3Although the defendant had two qualifying prior strike convictions, the
prosecution did not allege any prior serious felony enhancements. (§ 667, subd. (a);
Miranda, supra, 192 Cal.App.4th at p. 403.)
13
4
For attempted murder, the relevant provision is section 3046. (Miranda, supra,
192 Cal.App.4th at p. 415.) Under that provision, “an inmate imprisoned under a life
sentence shall not be paroled until he or she has served the greater of” either a “term of at
least seven calendar years” or a “term as established pursuant to any other law that
establishes a minimum term or minimum period of confinement under a life sentence
before eligibility for parole.” The Miranda court correctly noted that although section
3046 does not expressly mention enhancements, our Supreme Court has held that the
provision’s directive to impose a ‘term as established pursuant to any other provisions of
law,” includes terms for enhancements. (People v. Acosta (2002) 29 Cal.4th 105, 115
(Acosta) [when section 3046 is used to calculate the minimum indeterminate term under
Option 3 of third strike sentencing, that term “includes any applicable enhancement that
would be used to lengthen the term the defendant would receive absent the Three Strikes
law”].)
Thus, Miranda concluded the trial court’s use of the enhancements in both steps of
the sentence calculation was proper—to lengthen the defendant’s minimum indeterminate
term and as a separate determinate term. “[T]he trial court correctly determined that
defendant’s base sentence under Option 3 was 33 years”—that is, 7 years for the
attempted murder, plus 25 years, plus 1 year. (Miranda, supra, 192 Cal.App.4th at
4 Section 1170 is inapplicable because it governs determinate sentencing and
attempted murder receives an indeterminate sentence. Section 190 is inapplicable because
it provides the punishment for murder.
14
p. 417.) “To that base term the trial court properly added 26 years for the enhancements
. . . to establish the minimum parole eligibility period of 59 years.” (Ibid.)
To summarize, when Option 3 yields the longest minimum indeterminate term, the
court uses enhancements twice—once in calculating the minimum term and a second
time to add an additional term of punishment. We now turn to Flores’s sentence.
2. Additional facts
In their sentencing brief, the People recommended a total sentence of 100 years to
life, which they reached by improperly adding the terms for Flores’s three enhancements
to his sentence three times instead of twice. That is, they used the enhancements twice
when calculating the minimum indeterminate term (to reach a term of 69 years) then
recommended the judge impose all three enhancements for an additional term of 31
years.
At the sentencing hearing, the judge noted he had discretion to strike the prison
prior and prior serious felony enhancements, and counsel for both sides pointed out he
also had discretion to strike the gun enhancement under a recent amendment to the Penal
Code. The judge declined to strike the gun enhancement (as we’ve seen) but concluded
he would strike the prison prior and prior serious felony enhancements.
The prosecutor agreed with the judge’s decision to strike the prison prior and prior
serious felony enhancements but impose the gun enhancement. However, she argued that
even if the judge struck the enhancements, he was still required to add them to Flores’s
minimum indeterminate term. Using the incorrect approach from her sentencing brief that
15
added enhancements to the minimum term twice, she argued the judge had no discretion
to reduce Flores’s minimum term below 69 years.
The judge ultimately accepted the prosecutor’s argument. He imposed a minimum
indeterminate term of 69 years then stated he was exercising his discretion not to impose
separate determinate terms for any of the enhancements because the minimum term was
punishment enough. The judge explained, “you’re absolutely right. That is—option 3 is a
minimum of 69 to life. I have no discretion to decrease that. But I do have discretion not
to go higher, and that’s what I’m exercising. [¶] . . . [¶] . . . 69 to life . . . sufficiently
punishes the defendant for what happened.”
While this appeal was pending, the Legislature eliminated prison prior
enhancements except in limited circumstances not present here. (E.g., People v. Jennings
(2019) 42 Cal.App.5th 664, 681 [“Effective as of January 1, 2020, Senate Bill No. 136
. . . amends section 667.5, subdivision (b) to limit its prior prison term enhancement to
only prior prison terms for sexually violent offenses”].)
3. Analysis
Flores’s sentence is the product of two errors. The first is that the judge added the
terms for each of the three enhancements to the minimum indeterminate term twice. In
Option 3 cases, enhancements are used twice in total, but only once in calculating the
minimum indeterminate term. The second time they are used is to add a separate
determinate term to the life sentence. (Williams, supra, 34 Cal.4th at p. 403.)
16
The judge’s second error was to conclude enhancements may be stricken from one
aspect of the sentence but not the other. In other words, he determined that even if he
struck an enhancement, he nevertheless had to include it when calculating Flores’s
minimum indeterminate term. This is incorrect; if an enhancement or its punishment is
stricken under section 1385, it cannot be used to increase any aspect of punishment.
“[S]entencing enhancements ‘derive their vitality from and form a part of the
crime to which they are attached and alter the consequences the offender may suffer. The
most direct consequence is additional punishment.’” (People v. Fuentes (2016) 1 Cal.5th
218, 225 (Fuentes).) Section 1385 authorizes trial judges to strike an enhancement
altogether or to strike only the “punishment” for the enhancement. If a judge strikes the
enhancement, it’s as if the fact of the enhancement never existed—it will not remain on
the defendant’s criminal record nor will it affect them in any potential future sentencing.
If, however, a judge strikes the punishment only, the fact of the enhancement will remain
in the defendant’s criminal record, but the enhancement cannot be used to “add any
punishment” in the current case. (See Fuentes, at pp. 225-226, italics added.)
Here, it’s undisputed that setting a minimum indeterminate term is a form of
punishment. The longer that term, the more time a defendant must serve in prison before
becoming eligible for parole. Thus, the People correctly concede that because Flores’s
prison prior enhancement is no longer authorized, it must be removed from his sentence
entirely. That is, it cannot be used to calculate the minimum indeterminate term nor can it
be imposed as a separate one-year term to be served before the life sentence.
17
The People take a different position on the prior serious felony, however. They
acknowledge the judge struck the enhancement but argue that “once a qualifying prior
conviction is used as a strike, it must also be used to calculate the [minimum]
indeterminate term” under Option 3. They argue that because the judge declined to
dismiss one of Flores’s two strike offenses, the judge was required to add the five years
associated with the prior serious felony enhancement to the minimum indeterminate term.
For support, they point to the sentence in Acosta, in which the five years for a prior
serious felony enhancement was included in the defendant’s minimum indeterminate
term.
The problem with the People’s argument is it equates strike convictions with prior
serious felony enhancements, which are distinct concepts with different sentencing
consequences. A prior serious felony enhancement functions to add an additional term of
punishment to a defendant’s sentence. Prior strike convictions, in contrast, trigger
application of the Three Strikes law, which is not an enhancement but rather an alternate
penalty provision. “The Three Strikes law is a penalty provision, not an enhancement. It .
. . does not add an additional term of imprisonment to the base term. Instead, it provides
for an alternate sentence . . . when it is proven that the defendant has suffered at least two
prior serious felony convictions.” (People v. Williams (2014) 227 Cal.App.4th 733, 744.)
The People’s reliance on the sentence in Acosta is misplaced because prior serious
felony enhancements were mandatory when that sentence was imposed. As a result, the
court had no choice but to add the five-year term for the enhancement to the defendant’s
18
minimum indeterminate term under Option 3. (Acosta, supra, 29 Cal.4th at p. 115.) Now,
however, judges have discretion to strike or dismiss a prior serious felony enhancement;
and they may do so even if they choose not to also dismiss a prior strike conviction.
A few months before Flores was sentenced, “a new law went into effect permitting
the trial court to strike a serious felony enhancement in furtherance of justice.” (People v.
Stamps (2020) 9 Cal.5th 685, 692-693 [“on September 30, 2018, the governor approved
Senate Bill No. 1393 . . . allowing a trial court to dismiss a serious felony enhancement”];
see also Stats. 2018, ch. 1013, §§ 1, 2.) According to the legislative history of the new
law, making such enhancements mandatory resulted in a “‘rigid and arbitrary system
[that] has meted out punishments that are disproportionate to the offense, which does not
serve the interests of justice, public safety, or communities.’” (Stamps, at p. 702, quoting
Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1393 (2017-2018 Reg. Sess.) as
amended May 9, 2018, pp. 1-2.) Giving trial courts discretion to strike the enhancement
brings section 667, subdivision (a) in line with other sentence enhancements while still
retaining existing penalties for serious crimes and recidivism. (Stamps, at p. 702.)
This is because, now that the enhancements are discretionary, there is no reason a
judge could not strike the punishment associated with the enhancement but decline to
dismiss the underlying strike conviction. In such a case, the strike conviction would
trigger the alternative punishment mandated under the Three Strikes law (thereby
punishing the defendant for their recidivism), but the defendant would not receive the
additional punishment associated with the prior serious felony enhancement. We
19
therefore reject the People’s argument that the refusal to strike or dismiss a prior strike
conviction has any bearing on the impact of the decision to strike a prior serious felony
enhancement.
“‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court.’” (People v. Gutierrez (2014) 58 Cal.4th
1354, 1391.) Where “a court may have been influenced by an erroneous understanding of
the scope of its sentencing powers,” the proper remedy is remand for resentencing.
(People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) Remand is appropriate here
because the judge misunderstood the scope of his sentencing discretion under the Three
Strikes law. Specifically, he mistakenly believed (i) he had no discretion to remove
stricken enhancements from the minimum indeterminate term and (ii) enhancements are
included twice in calculating that term.
On remand, the judge must remove the prison prior enhancement from both
aspects of the sentence and resentence Flores. However, because the judge misunderstood
the impact striking an enhancement has on the sentence, he should exercise his informed
discretion on the remaining enhancements. Stricken enhancements may not be used to
“add any punishment” to the sentence, whether as an additional determinate term or as a
means of lengthening the minimum indeterminate term. (Fuentes, supra, 1 Cal.5th at
p. 226, italics added.)
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III
DISPOSITION
We remand for resentencing but in all other respects affirm the judgment.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
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