People v. Gonzalez CA6

Filed 7/13/22 P. v. Gonzalez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048806
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. C1901959)
v.
MIGUEL GONZALEZ,
Defendant and Respondent.
Defendant and respondent Miguel Gonzalez kicked his ex-girlfriend during an
altercation in her apartment and, after her roommates intervened and led him outside and
down the exterior stairs, pulled out a handgun and shot past the roommates at the
occupied apartment. Gonzalez pleaded no contest to felony assault and other charges
related to the firing of the handgun and to the infliction of corporal injury on his ex-
girlfriend, and admitted a prior serious felony conviction. At sentencing, the trial court
struck the punishment on the five-year enhancement for the prior serious felony
conviction alleged pursuant to Penal Code section 667, subdivision (a)1 (Proposition 8)
and imposed an aggregate sentence of 12 years in prison, comprised in part of a
concurrent rather than consecutive sentence on one of the counts.
1
Unspecified statutory references are to the Penal Code.
The District Attorney of Santa Clara County (district attorney) appeals from the
judgment. On appeal, the district attorney contends that the trial court’s imposition of a
concurrent prison term on the infliction of corporal injury count violated the mandatory
consecutive sentencing rule under the Three Strikes law, as interpreted in People v.
Lawrence (2000) 24 Cal.4th 219 (Lawrence), for felony offenses that were “not
committed on the same occasion” and did not arise “from the same set of operative facts”
(§§ 667, subd. (c)(6), (7), 1170.12, subd. (a)(6), (7)). The district attorney also contends
that the trial court abused its discretion in striking the punishment for the prison sentence
enhancement alleged pursuant to Proposition 8. For the reasons explained below, we
affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND2
A. Facts
On the evening of January 19, 2019, San Jose police officers responded to a report
of a firearm being discharged at a San Jose apartment complex. According to the
individuals interviewed, Edith F.3 rented a room from a couple, Alondra C. and
Christopher A. The 10-year-old son of Alondra and Christopher also lived with them.
Edith had been in a dating relationship with defendant Gonzalez for approximately
seven to eight months before the incident. Earlier that evening, Gonzalez texted Edith
that he would be coming over. Edith, who was not at the residence, contacted her
roommate Alondra and asked that she not let Gonzalez inside. When Edith arrived home,
she found Gonzalez sitting in the living room.
Edith walked into her bedroom, followed by Gonzalez. Gonzalez appeared to be
intoxicated and under the influence of cocaine. Edith demanded that Gonzalez leave the
2
There was no preliminary hearing or trial conducted in this matter. We take the
facts from the probation report and sentencing briefs submitted by the parties, which
derived their factual summaries from a San Jose Police Department report.
3
To protect the privacy of the victims, we refer to their last names by first initial.
(Cal. Rules of Court, rule 8.90(b)(4).)
2
room. Gonzalez grabbed Edith’s right arm. As Edith attempted to push him out of the
room, Gonzalez kicked her extremely hard on the left leg, causing a baseball-sized
contusion. Christopher intervened and walked Gonzalez out of the bedroom. Shortly
after, Edith heard a gunshot.
Alondra reported that she escorted Gonzalez out of the apartment and down the
stairs when he yelled “ ‘Norte,’ ” reached behind his back, and pulled out a handgun.
Gonzalez “racked the slide of the handgun, which ejected one round, then pointed the
handgun up towards their residence balcony, where her family was standing, and fired
one round.” Christopher similarly reported that he was standing on the balcony with his
son, watching Alondra walk Gonzalez downstairs, when Gonzalez “pulled out a handgun,
racked the slide and shot one round” toward them.
Police officers recovered one spent shell casing and one unfired round at the base
of the stairs. The path of the bullet went through a wall in the apartment, into the
neighboring apartment, where it penetrated the ceiling of a closet and exited through the
roof of the building. Gonzalez was apprehended some weeks later.
B. Procedural History
1. Charges
On January 28, 2019, the district attorney filed a felony complaint charging
Gonzalez with assault with a semi-automatic firearm (§ 245, subd. (b); count 1), child
endangerment (§ 273a, subd. (a); count 2), shooting at an inhabited dwelling house
(§ 246; count 3), felon in possession of a firearm (§ 29800, subd. (a)(1); count 4), and
inflicting corporal injury on a specified person (§ 273.5, subd. (a); count 5). As to the
child endangerment charge, the complaint alleged that Gonzalez personally used a semi-
automatic firearm pursuant to section 12022.5, subdivision (a). In addition, the complaint
alleged that Gonzalez had suffered a prior serious felony conviction for assault with a
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deadly weapon while personally inflicting great bodily injury (§ 245, subd. (a)), within
the meaning of section 667, subdivision (a).4
2. Indicated Sentence and Sentencing Briefs
On February 10, 2020, after receiving an indicated sentence from the trial court of
a sentencing range of 10 to 13 years in prison, with a maximum possible sentence of 29
years, Gonzalez pleaded no contest to all charges and admitted the allegation. The trial
court advised Gonzalez that its indicated sentence was non-binding, which meant the
court could decide at sentencing, after reviewing the probation report, to impose up to the
maximum sentence. Gonzalez indicated he understood, and the trial court accepted
Gonzalez’s plea.
Both parties filed sentencing briefs prior to the scheduled sentencing hearing. The
district attorney’s sentencing brief summarized Gonzalez’s current and prior offenses and
challenged the basis for the trial court’s indicated sentence. It asserted that the probation
officer’s sentencing report mistakenly understood the non-binding, indicated sentence as
providing a “ ‘top’ ” or maximum of 13 years, and so “to ‘keep within the parameters of
the negotiated plea’ ” the probation report recommended only the midterm of 12 years in
prison for count 1, despite noting that Gonzalez’s firearm offense and criminal history
“ ‘demonstrate[d] a pattern of serious violent behavior’ ” and that Gonzalez had multiple
circumstances in aggravation and only one in mitigation.
The district attorney further asserted that under the Three Strikes law, Gonzalez
“must receive” a consecutive, not concurrent, sentence for count 5, inflicting corporal
injury on a specified person, because the domestic violence offense that Gonzalez
committed against his former girlfriend inside the apartment was separate in time and
4
The complaint also alleged that Gonzalez had served three prior prison terms
within the meaning of then-current section 667.5, subdivision (b). On February 10, 2020,
following the amendment of that statute based on the passage of Senate Bill No. 136,
effective January 1, 2020, and upon the district attorney’s motion, the trial court
dismissed the three prior prison term allegations.
4
manner from the offenses committed outside the apartment against her roommates. Thus,
the district attorney argued that the Three Strikes provisions (§§ 667, subds. (c)(6), (7),
1170.12, subds. (a)(6), (7)), required consecutive sentences, and the circumstances of
Gonzalez’s offenses precluded any application of the narrow exception to that sentencing
rule.
The district attorney relied on the California Supreme Court’s analysis in
Lawrence, supra, 24 Cal.4th 219. The district attorney argued that a trial court’s
discretion to impose a concurrent sentence if the felony offenses were committed on the
same occasion and arose from the same set of operative facts (id. at pp. 223, 233; see
§§ 667, subd. (c)(6), 1170.12, subd. (a)(6)) could not apply in this case, where the
offenses were not committed simultaneously or even against the same group of victims.
Rather, the district attorney asserted that Gonzalez kicked Edith while in the apartment
and—only after her roommates had interceded and led him outside and downstairs—
turned and fired a gun at the roommates from the exterior stairway. The district attorney
maintained that a concurrent sentence under these circumstances would be inconsistent
with the factors and outcome in Lawrence.
The district attorney also challenged the recommendation to dismiss the prior
serious felony conviction enhancement under section 667, subdivisions (a) (Proposition
8) and (b)–(i) (Three Strikes law) “without conducting an individualized analysis as
required by section 1385.” The district attorney argued that dismissal of the prior serious
felony enhancement was improper, as Gonzalez had been incarcerated or on probation,
parole, or post-release-community-supervision “continuously for the past thirteen years,”
had committed new violent crimes shortly after being released, had done little to
rehabilitate himself, and “falls squarely within the spirit of Proposition 8 and the Three
Strikes law.”
Gonzalez also filed a sentencing brief which focused on the circumstances of the
charged offenses, his criminal history and strike prior, and personal circumstances. The
5
defense’s brief described Gonzalez’s experience of domestic violence and abandonment
as a child. Gonzalez’s father was a severe alcoholic who regularly became intoxicated
and beat Gonzalez, his siblings, and his mother. When Gonzalez was in elementary
school, his father was arrested on domestic violence charges, and when Gonzalez was 13
years old, his father was incarcerated. His mother began dating a new man, and when
Gonzalez did not feel safe at the man’s apartment and asked to go home, his mother
dropped him at a bus station and told him to forget he had a mother. The brief argued
that at age 15, Gonzalez succumbed to the negative social and environmental pressures of
the neighborhood and joined a gang for safety and survival. He began experimenting
with illegal drugs and consuming alcohol.
Gonzalez’s brief acknowledged he had his first encounter with the criminal justice
system at age 17 and has been in and out of custody since then, serving time in county
jail and prison. In 2018, Gonzalez was released on his most recent felony conviction, for
possession of a stolen vehicle, before committing the current offenses in January 2019.
Gonzalez’s strike prior occurred in December 2009 when Gonzalez was 20 years old.
Gonzalez had confronted a former friend with a knife and called him a “snitch” for
confessing to a theft they had committed together, which had resulted the year prior in
Gonzalez’s conviction for theft from a person (§ 487, subd. (c)). Gonzalez tried to stab
the victim near the face and neck, who raised his right arm to defend himself. Gonzalez
slashed the victim’s arm from the elbow to the wrist before the victim ran away and was
driven to the hospital for treatment. Gonzalez was convicted of assault with a deadly
weapon (§ 245, subd. (a)(1)), a felony, and admitted an allegation that he personally
inflicted great bodily injury upon the victim, in violation of section 12022.7. Gonzalez
received a five-year prison sentence, which was the longest sentence to date he had
received.
6
Gonzalez also detailed his efforts to address anxiety, depression, and addiction,
and to overcome his cycles of addiction and crime, including through enrolling in
numerous parenting and rehabilitation programs both in custody and out of custody.
3. Sentence
On October 26, 2020, the trial court sentenced Gonzalez in accordance with its
indicated sentence. The court determined the circumstances in aggravation and
mitigation under California Rules of Court, rules 4.421 and 4.423, noting the factors in
aggravation included Gonzalez’s prior history and acts of violence, that he served prior
prison terms, and that he did not complete his prior supervision satisfactorily. In
mitigation, it found that Gonzalez had accepted responsibility for the instant offenses
early in the proceedings.
As for the indicated sentence, the trial court recognized the district attorney’s
position that count 5 should be a consecutive term but concluded the domestic violence
offense and firearm discharge were part of a single, continuous altercation, thus
warranting a concurrent sentence. It explained, “I find that all of the offenses are part of
Mr. Gonzalez’[s] altercation with his, then, girlfriend, and that the other victims became
involved, consequently, during the altercation, as they tried to separate Mr. Gonzalez and
his girlfriend, and then ushered Mr. Gonzalez out of the apartment. [The] [o]ffenses also
occurred at the same location and very close in time, as part of the continuous evasive
actions committed by Mr. Gonzalez.” The court also noted that while it was “doubling
the applicable terms for the counts” pursuant to sections 667, subdivision (b) and
1170.12, it would strike the additional five years of punishment that could be imposed
under section 667, subdivision (a). It further found the offenses alleged in counts 1, 3,
and 4 shared the same actus reus, and pursuant to section 654 Gonzalez could be
punished only for the offense with the longest term under count 1.
The trial court accordingly imposed a prison sentence of 12 years on count 1,
based on the midterm doubled, and a concurrent, midterm (doubled) of eight years on
7
count 2, plus a concurrent, four-year term on the enhancement under section 12022.5,
subdivision (a). The court further imposed the midterms (doubled) of 10 years for count
3, and four years for count 4, and stayed punishment on those counts pursuant to section
654, subdivision (a). Lastly, as to count 5, the trial court imposed a concurrent middle
term (doubled) of six years. The court struck the punishment for the five-year
enhancement under section 667, subdivision (a), for an aggregate term of 12 years.
The district attorney timely filed a notice of appeal.
II. DISCUSSION
The district attorney raises two claims of error. First, the district attorney contends
that because the offenses in count 1 (assault with a semi-automatic firearm) and count 5
(inflicting corporal injury on Edith) were distinct in nature, involved different victims,
and were separated in space and time, the Three Strikes regime governing Gonzalez’s
sentence mandated the imposition of a consecutive, rather than concurrent, prison
sentence on count 5. The district attorney also contends that based upon the nature and
circumstances of the offenses committed, and given Gonzalez’s prior convictions and
recidivism, the trial court abused its discretion by striking the punishment for the five-
year enhancement for the prior violent felony alleged pursuant to Proposition 8.
A. Mandatory Consecutive Sentence Provision
1. Statutory Framework
In enacting the Three Strikes law, the Legislature sought “to ensure longer prison
sentences and greater punishment for those who commit a felony and have been
previously convicted of one or more serious or violent felony offenses.” (§ 667, subd.
(b).) The law “prescribes increased punishment for a person who is convicted of a felony
after sustaining one or more qualifying prior felony convictions or juvenile adjudications,
which are commonly known as strikes. ([] §§ 667, subds. (b)-(i), 1170.12.)” (People v.
Barragan (2004) 32 Cal.4th 236, 239.)
8
The consecutive mandatory sentencing provision of the Three Strikes law is set
forth in section 667, subdivision (c)(6) (hereafter, section 667(c)(6); see also § 1170.12,
subd. (a)(6)). The statute states, “If there is a current conviction for more than one felony
count not committed on the same occasion, and not arising from the same set of operative
facts, the court shall sentence the defendant consecutively on each count pursuant to
subdivision (e).” (§ 667(c)(6).) Section 667(c)(6) thus “increases the punishment for
certain recidivist offenders by making consecutive sentences mandatory in Three Strikes
cases when the defendant was convicted of more than one offense not committed on the
same occasion or arising out of the same operative facts.” (People v. Hojnowski (2014)
228 Cal.App.4th 794, 800.)
To determine whether a defendant’s current felony offenses are subject to
mandatory consecutive sentencing, we look to our high court’s interpretation in Lawrence
of the statutory phrases “not committed on the same occasion” (§ 667(c)(6)) and “not
arising from the same set of operative facts.” (Ibid.) The court in Lawrence, relying on
earlier precedent interpreting the first part of subdivision (c)(6), stated that the phrase
“ ‘ “committed on the same occasion” is commonly understood to refer to at least a close
temporal and spatial proximity between two events, although it may involve other factors
as well.’ ” (Lawrence, supra, 24 Cal.4th at p. 226, quoting People v. Deloza (1998) 18
Cal.4th 585, 594, italics omitted (Deloza).)
“The law deprives the trial court of discretion and requires consecutive sentencing
only if the current crimes arose on different occasions and out of different sets of
operative facts.” (People v. Coelho (2001) 89 Cal.App.4th 861, 884, italics added
(Coelho).) Thus, if the reviewing court determines the current felony convictions were
“committed on the same occasion” within the meaning of section 667(c)(6), the
mandatory consecutive sentencing rule does not apply and there is no need to ascertain
whether the convictions arose from the same set of operative facts.
9
2. Standard of Review
Our review of the trial court’s decision here is necessarily informed by the
appliable standard of review. The district attorney does not articulate the applicable
standard of review in his opening brief but appears to suggest the trial court erred as a
matter of law because the court lacked discretion to impose a concurrent sentence where
the current felony convictions were separated in space and time and did not arise from the
same set of operative facts. (See Deloza, supra, 18 Cal.4th at p. 596, fn. 7.) Gonzalez
counters that sentencing decisions are generally reviewed under the deferential abuse of
discretion standard, though the level of deference may vary in accordance with the
statutory grant of authority and the aspect of the ruling under review.
Where “a specific statute affects the extent and nature of a trial court’s discretion,
we examine [the] trial court’s actions in light of the specific law bearing on that
discretion.” (People v. Rodriguez (2016) 1 Cal.5th 676, 685 (Rodriguez).) “[J]udicial
discretion must be measured against the general rules of law and, in the case of a
statutory grant of discretion, against the specific law that grants the discretion.”
(Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th
359, 393.) We therefore consider whether the trial court’s exercise of discretion is
consistent with the statute’s intended purpose and the legal principles governing the
subject of the action. (Rodriguez, at p. 685.)
We also recognize “[t]he abuse of discretion standard is not a unified standard; the
deference it calls for varies according to the aspect of a trial court’s ruling under review.
The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of
law are reviewed de novo, and its application of the law to the facts is reversible only if
arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712,
fns. omitted.) If the trial court applies an incorrect legal standard or considers
impermissible factors, those errors constitute an abuse of discretion. (People v. Knoller
(2007) 41 Cal.4th 139, 156 (Knoller).)
10
3. Analysis
Bearing in mind the interpretation of section 667(c)(6) provided by the California
Supreme Court in Lawrence and Deloza, we consider whether the factual record supports
the trial court’s determination that Gonzalez’s act in firing the handgun at the roommates
occurred on the same occasion and as part of the same altercation that began in the
apartment where Gonzalez harmed his ex-girlfriend.
The district attorney asserts that the trial court “focused solely on the close
temporal and spatial proximity of the two crimes” and “did not consider any of the other
required factors, such as the nature and elements of the current offenses, factors which
the Supreme Court held dispositively required consecutive sentencing in Lawrence.”
This argument overlooks an important aspect of the statutory rule: Where the offenses
occurred on the same occasion based upon their close temporal and spatial proximity
(Deloza, supra, 18 Cal.4th at pp. 594–596), it is immaterial whether they also arise from
the same set of common operative facts. (See id. at p. 596, fn. 7; People v. Hall (1998)
67 Cal.App.4th 128, 139; Coelho, supra, 89 Cal.App.4th at p. 884.)
Here, the record supplies substantial evidence to enable the trial court to determine
the firearm offenses occurred “on the ‘same occasion’ ” as the domestic violence
offense—as the phrase “ ‘same occasion’ ” is commonly understood—based on the
timing and proximity of the acts which formed the factual basis for Gonzalez’s
convictions. (Lawrence, supra, 24 Cal.4th at p. 233.)
Gonzalez was convicted in count 1 of assault with a semi-automatic firearm
(§ 245, subd. (b)) and in count 5 of inflicting corporal injury on a specified person
(§ 273.5, subd. (a)). It is true that the felonious acts (kicking Edith in the apartment, then
firing the handgun toward Christopher, Alondra, and their son outside the apartment
when he reached the bottom of the exterior stairwell) did not occur simultaneously or in
precisely the same location; the offenses were separated by the unspecified amount of
time it took Christopher to lead Gonzalez out the door of the apartment and Alondra to
11
lead him down the stairs. On the other hand, in reviewing the factual record based on the
summary contained in the probation report, it is difficult to conceive of the offenses
having occurred on separate “occasions” where, as the trial court observed, “the other
victims became involved [] during the altercation, as they tried to separate Mr. Gonzalez
and his girlfriend, and then ushered Mr. Gonzalez out of the apartment” and down the
stairs, at which point he turned and fired his weapon at the balcony of the home from
which he had just been removed.
We do not agree with the district attorney that by focusing only on the temporal
and spatial proximity of Gonzalez’s crimes, the trial court failed to consider the other
facts relevant to the Supreme Court’s determination as discussed in Lawrence. In Deloza
and Lawrence, our high court applied the phrase “committed on the same occasion” to
the factual circumstances in each case and drew distinctly different conclusions.
Comparing the circumstances in Deloza and Lawrence, and the high court’s analysis in
both instances under the mandatory consecutive sentence provision, to the circumstances
that formed the basis for Gonzalez’s convictions in this case, we are unable to conclude
that the trial court misapplied the relevant legal principles (see Rodriguez, supra, 1
Cal.5th at p. 685) or that its factual conclusions lack substantial evidence.
In Deloza, the California Supreme Court held that consecutive sentences were not
mandated where the defendant was convicted of four counts of second degree robbery
based on having entered a furniture store with an armed companion, robbed four victims,
and left. Our high court summarized the basis for its decision as follows: “[Defendant’s]
robberies were committed in one location, and were apparently brief in duration. They
were committed essentially simultaneously against the same group of victims, i.e.,
persons in the furniture store. While [a bystander] approached defendant, his criminal
activity was not thereby interrupted, but merely continued with her as an additional
victim. Nor was there any other event that could be considered to separate one ‘occasion’
of robbery from another. Given the close temporal and spatial proximity of defendant’s
12
crimes against the same group of victims, they were clearly committed on the ‘same
occasion,’ regardless of what additional factors may be found relevant in defining the
precise parameters of this phrase in future cases.” (Deloza, supra, 18 Cal.4th at pp. 595–
596.)
In Lawrence, our Supreme Court expanded on and distinguished Deloza. It noted
that because “the defendant’s crimes in Deloza were committed in one location, were
brief in duration, and were committed essentially simultaneously against the same group
of victims, we had no difficulty concluding they were ‘committed on the same occasion’
within the meaning of section 1170.12, subdivision (a)(6) and (7) (see also § 667, subd.
(c)(6) and (7)), and that consecutive sentencing was therefore not mandated.” (Lawrence,
supra, 24 Cal.4th at p. 227.) By contrast, the relevant offenses in Lawrence of felony
petty theft with a prior and felony assault occurred when the defendant stole a bottle of
brandy from a market, fled for a distance of one to three blocks (depending on the route
taken) into a nearby backyard, and hit a resident of the house with the brandy bottle as the
residents chased him from their backyard. (Id. at pp. 223–224, 228.) Our Supreme Court
held that based on factors not present in Deloza, including the time between the offenses
(“most likely” committed two or three minutes apart), their separate location (the market
and the residence), and the “two entirely separate groups of victims” (e.g., assault victims
who had no connection with the market) (id. at p. 228), the two felonies did not occur on
the same occasion within the meaning of subdivision (c)(6). (Id. at p. 229.)
In analyzing whether the felony offenses occurred on the “same occasion,” the
court in Lawrence rejected the assertion that section 667(c)(6) may be interpreted to not
apply to “crimes perpetrated against different groups of victims merely because the later
crimes occurred while the defendant was still in flight from the initial crime scene.”
(Lawrence, supra, 24 Cal.4th at p. 229.) The high court emphasized that rather than use
the distance he had gained from the market to flee along a public street and try to escape
apprehension, the defendant entered into the resident’s fully enclosed backyard and
13
“chose to commit new and separate crimes during his flight.” (Id. at p. 228, italics
omitted.)
The record here adequately supports the trial court’s determination that the felony
offenses in this case unfolded in close succession, as part of a single altercation
comprising several criminal acts, more like the robberies at the furniture store in Deloza
than the theft at the market and assault a few minutes later of an unrelated victim in
Lawrence. Unlike in Lawrence, the victims were not “entirely separate groups”
victimized at “separate locations” at distinct points in time, at least two or three minutes
apart. (Lawrence, supra, 24 Cal.4th at p. 228.) Instead, it appears from the record that
Gonzalez fired the handgun at Christopher’s and Alondra’s apartment precisely because
they had become involved in the altercation by trying to remove him from the apartment
after he inflicted bodily injury on Edith, who was living with them.
We recognize that a different sentencing judge might have drawn a different
conclusion, but we identify no evidence in the record establishing that there was a break
in the altercation or a sufficient distinction between groups of victims and crimes
committed that would preclude the trial court from finding (as it did here) the offenses in
counts 1 and 5 were “committed on the same occasion.” (§ 667(c)(6).) This was not a
scenario, like in Lawrence, in which case the perpetrator of one offense fled the scene of
the first offense and subsequently committed a new and separate felony on an entirely
separate victim at a different location. (Cf. Lawrence, supra, 24 Cal.4th at p. 228.)
Instead, Christopher and Alondra intervened to remove Gonzalez, who had already
perpetrated the felony against Edith in the home, and during the course of that removal,
Gonzalez committed a new and separate felony directed at the family, which additionally
put others at risk (given the bullet’s trajectory).
The decisions in People v. Durant (1999) 68 Cal.App.4th 1393 (Durant) and
People v. Jenkins (2001) 86 Cal.App.4th 699 (Jenkins), cited by the district attorney, do
not alter our conclusion.
14
In Durant, the appellate court reversed the judgment after concluding the trial
court lacked discretion under the Three Strikes provisions to impose concurrent sentences
on three felony convictions—two attempted burglaries and one burglary—because the
offenses were separate offenses which “did not occur on the ‘same occasion’ as that term
is commonly understood.” (Durant, supra, 68 Cal.App.4th at p. 1407.) There, however,
the defendant had committed the separate offenses (id. at p. 1406) against three different
residences in a housing complex. Though the crimes were committed in succession, the
defendant spent several minutes or more at each residence he tried to enter (id. at
p. 1397), plus time spent walking through the complex after each attempted burglary and
before approaching the next residence. (Ibid.) We decide that the cadence between and
circumstances concerning the felony offenses at issue here bear little resemblance to what
occurred in Durant and are sufficient to support the trial court’s assessment that the
crimes occurred on the “same occasion.” (§ 667, subd. (c)(6), (7).)
So too, in Jenkins, the appellate court’s determination that the trial court properly
sentenced the defendant to consecutive sentences on convictions for attempted murder
and felony assault (Jenkins, supra, 86 Cal.App.4th at p. 707) does not dictate error here.
In Jenkins, the defendant broke into the apartment occupied by his ex-girlfriend Arlisa,
and Arlisa’s daughter, Jamila. He chased Arlisa upstairs but she ran into her bedroom
and pushed the door closed on him and took his knife. Meanwhile, Jamila took two
knives from the kitchen and went upstairs to confront the defendant, who shoved her
down the stairs. (Id. at p. 704.) He then went down the stairs, entered the kitchen,
rummaged through the drawers, exited with another knife in his hand and went back
upstairs, pushing aside the apartment manager who had entered and tried to step in front
of the defendant. The defendant forced his way into Arlisa’s bedroom and stabbed her
multiple times. (Ibid.) A jury found the defendant guilty of felony assault on Jamila and
the attempted murder of Arlisa. (Id. at p. 701.)
15
On appeal, the court rejected the defendant’s claim that the trial court was
“unaware it had discretion to sentence concurrently on” the attempted murder and felony
assault counts (Jenkins, supra, 86 Cal.App.4th at p. 705), noting among its reasons the
“defendant had completed his assault on Jamila well before he stabbed Arlisa,”
“his criminal conduct was interrupted for a significant time while he went downstairs,
looked for a weapon, located a weapon, armed himself with the knife, and then pushed
the manager out of the way before proceeding back up the stairs,” and that “[h]is criminal
conduct was further delayed while he searched for a weapon on the first floor.” (Id. at
p. 707.) In summarizing the relevant factors, the appellate court noted the separations
“both in time and location, although [the offenses] all occurred within the same
apartment” (ibid.), as well as the different people present and the time between offenses
such that the “defendant could consider the consequences of continuing to commit new
criminal acts.” (Ibid.)
The district attorney contends that unlike the trial court in this case, the court in
Jenkins “did not narrowly focus on the close temporal and spatial proximity between two
or more events” but “correctly applied the legal principles described in Deloza and
Lawrence.” However, the record before us gives no indication of any comparable
interruptions in timing between the offenses (such as while the defendant in Jenkins
returned downstairs and searched through the kitchen drawers for a knife) or in
interruptions in sequence (such as when the apartment manager in Jenkins entered the
apartment and tried to intercede) (Jenkins, supra, 86 Cal.App.4th at p. 707), that would
preclude a determination by the trial court that the offenses occurred on the “same
occasion,” as that phrase has been developed in the caselaw.
In sum, the factual basis set forth in the probation report for Gonzalez’s current
convictions suggests that the felony offenses at issue happened in quick succession and
formed part of the same altercation, centered on the confrontation with Edith in her
apartment and with Christopher and Alondra as they escorted Gonzalez outside. Under
16
these circumstances, the trial court’s largely factual determination that the convictions
were “committed on the same occasion” (§ 667(c)(6)) finds substantial support in the
record. Consequently, the trial court had the authority to exercise its discretion in
electing a concurrent or consecutive sentence as to count 5, and we reject the district
attorney’s argument that the trial court imposed an unlawful or “illegal” concurrent
sentence. The district attorney does not otherwise challenge the trial court’s exercise of
discretion under section 667(c)(6), and we perceive no abuse of discretion in the trial
court’s imposition of a concurrent sentence on count 5, consistent with the statutory
language. (§§ 667(c)(6), 1170.12, subd. (a)(6); see Knoller, supra, 41 Cal.4th at p. 156.)
B. Prior Serious Felony Enhancement
1. Statutory Framework
In 1982, California voters passed Proposition 8, which added sections 667 and
1192.7 to the Penal Code. Section 667, subdivision (a)(1) states, “A person convicted of
a serious felony who previously has been convicted of a serious felony in this
state . . . shall receive, in 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.” (§ 667, subd. (a)(1).)
Historically, section 1385 prohibited a judge from striking a prior serious felony
enhancement imposed pursuant to section 667, subdivision (a). (See People v. Dryden
(2021) 60 Cal.App.5th 1007, 1032 (Dryden), citing § 1385, former subd. (b); People v.
Shaw (2020) 56 Cal.App.5th 582, 586 (Shaw) [explaining former section 1385,
subdivision (b), which “made imposition of the five-year enhancement mandatory in all
cases; courts had no discretion to strike or dismiss the enhancement pursuant to section
1385”].)
The passage of Senate Bill No. 1393 (Senate Bill 1393), effective January 2019,
amended sections 1385, subdivision (b)(1) and 667, subdivision (a)(1), to permit a court
17
to strike a prior serious felony enhancement in furtherance of justice. (People v. Stamps
(2020) 9 Cal.5th 685, 692 (Stamps); § 1385, subds. (a), (b)(1); Stats. 2018, ch. 1013, § 2,
eff. Jan. 1, 2019.) As amended, the new law gave courts authority to dismiss an action or
to strike or dismiss an enhancement “in the furtherance of justice.” (§ 1385, subd. (a).)
That provision was operative in 2020 when Gonzalez was sentenced.
As the California Supreme Court explained in Stamps, “Senate Bill 1393 removed
provisions that prohibited a trial court from striking a serious felony enhancement in
furtherance of justice under section 1385.” (Stamps, supra, 9 Cal.5th at p. 700.) The
measure “was intended to bring a court’s discretion to strike a five-year serious felony
enhancement in line with the court’s general discretion to strike other enhancements.
Thus, the Legislature gave a court the same discretion to strike a serious felony
enhancement that it retains to strike any other sentence enhancing provision.” (Id. at
p. 702.)
Section 1385 subsequently underwent further amendments. (See Stats. 2021,
ch. 721, § 1, eff. Jan. 1, 2022 (Senate Bill No. 81).) Section 1385 now requires a trial
court to dismiss an enhancement if it is in the furtherance of justice to do so, affording
“great weight to evidence offered by the defendant to prove” that specified mitigating
circumstances are present, unless the court finds that dismissal would endanger public
safety, as defined. (§ 1385, subd. (c)(1), (2).)
2. Standard of Review
As the district attorney points out, and other appellate courts have noted, there are
“few published opinions following the enactment of Senate Bill 1393 that define the
scope of a trial court’s authority to strike a prior serious felony enhancement ‘in
furtherance of justice’ (§ 1385, subd. (b)), or [that] discuss in any detail the standard of
appellate review.” (Shaw, supra, 56 Cal.App.5th at p. 585.)
In Shaw, the court reasoned that based upon cases decided in the “short window”
in which courts previously had discretion to strike a prior felony conviction in
18
furtherance of justice, before statutory changes abrogated that authority, only to reinstate
it with the passage of Senate Bill 1393 (Shaw, supra, 56 Cal.App.5th at pp. 586–587,
citing People v. Fritz (1985) 40 Cal.3d 227, superseded by statute as noted in People v.
Fuentes (2016) 1 Cal.5th 218, 230–231), the standard of review of a trial court’s decision
not to strike a prior serious felony enhancement is abuse of discretion. (Shaw, at p. 586.)
Similarly, in Dryden, upon ordering reversal of the judgment and remand for
resentencing on a separate issue under section 1385, subdivision (a), and People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero),5 this court directed the trial
court to exercise its “new discretion” under Senate Bill 1393, and sections 667,
subdivision (a) and 1385, to decide “whether, in the interest of justice, defendant’s
sentence should be reduced by [five] . . . years.” (Dryden, supra, 60 Cal.App.5th at
p. 1033.)
While the parties dispute the extent to which case authority delineating the bounds
of discretion to strike prior felony convictions under the Three Strikes regime is relevant
or useful in guiding our review of trial court decisions concerning the application of prior
serious felony enhancements under Proposition 8, there is little question that the
applicable standard of review is abuse of discretion. (See People v. Carmony (2004) 33
Cal.4th 367, 373 (Carmony).) “[A] trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at
p. 377.)
3. Analysis
The district attorney challenges the trial court’s decision to strike the punishment
for the five-year enhancement under Proposition 8 as an abuse of discretion that is both
5
The court in Dryden determined the trial court had abused its discretion by
declining to strike any of the defendant’s prior Three Strikes convictions under section
1385, subdivision (a) and Romero, and reversed the judgment and remanded for
resentencing on that ground. (Dryden, supra, 60 Cal.App.5th at pp. 1029–1032.)
19
unsupported by the record and contrary to the spirit of Proposition 8 and the Three
Strikes law. He maintains that under the circumstances of this case, considering the
nature and circumstances of Gonzalez’s current felonies, his age, his pattern of recidivism
while on probation and parole, prior prison terms, and the absence of intrinsic mitigating
factors, the trial court abused its discretion in striking the punishment for the prior serious
felony enhancement in a seeming effort to stay within an arbitrary and preselected term
of imprisonment.
In arguing that the trial court’s decision falls outside the bounds of its discretion,
the district attorney relies on case authority interpreting judicial discretion to strike a
prior strike allegation under section 1385. He asserts that “[l]ogically, the analysis of
whether to strike or dismiss a prior serious or violent felony conviction alleged pursuant
to Proposition 8 or the Three Strikes law must be similar because the ‘scheme’ of
Proposition 8 and the Three Strikes law is the same. Both sentencing enhancements were
passed by the California voters for the purpose of increasing the punishment for those
who have been previously convicted of serious and/or violent felony offenses and to
restrict courts’ discretion in sentencing repeat offenders.” (Bolding omitted.)
Gonzalez counters that the district attorney’s reliance on Three Strikes cases is
misplaced. He argues that a court’s discretion for dismissing a strike is fundamentally
narrow. Under Romero, a court may strike prior felony conviction allegations in cases
arising under the Three Strikes law “subject, however, to strict compliance with the
provisions of section 1385 and to review for abuse of discretion.” (Romero, supra, 13
Cal.4th at p. 504.) By contrast, Gonzalez submits that pursuant to Senate Bill 1393, the
discretion to dismiss a prior serious felony enhancement under Proposition 8 turns simply
on whether, in the interest of justice, the applicable five-year enhancement or
enhancements should be stricken. (§ 1385.)
The statute in effect at the time of Gonzalez’s sentencing expressly authorized the
trial court to strike a serious felony enhancement “in furtherance of justice.” (§ 1385,
20
subds. (a), (b)(1).) Turning to the Supreme Court’s examination of that phrase in
Romero, we note that within the meaning of section 1385, “ ‘ “ ‘furtherance of justice,’
requires consideration both of the constitutional rights of the defendant, and the interests
of society represented by the People, in determining whether there should be a
dismissal.” . . . At the very least, the reason for dismissal must be “that which would
motivate a reasonable judge.” ’ ” ’ ” (Romero, supra, 13 Cal.4th at pp. 530–531, internal
citations omitted.)
Ultimately, we need not decide for purposes of resolving this appeal the extent to
which a trial court’s authority to strike a serious felony enhancement “in furtherance of
justice” (§ 1385, subds. (a), (b)(1)) is properly informed by appellate case authority under
the Three Strikes law and Romero, which defines the scope of discretion to strike a prior
strike conviction. Even if we assume, without deciding, that a court’s discretion to strike
a prior serious felony enhancement is confined to similar limits as constrain a court’s
exercise of discretion under Romero, we do not agree that the trial court abused its
discretion in this instance.
The trial court indicated from the outset at the sentencing that it had reviewed the
sentencing briefs and probation report and identified the circumstances in aggravation
and mitigation under California Rules of Court, rules 4.421 and 4.423. The trial court
listed several factors in aggravation, including Gonzalez’s criminal history, prior violent
felony, prior prison terms, and failure to complete his supervision satisfactorily, and
explicitly referenced one factor in mitigation, based on Gonzalez’s acceptance of
responsibility early in the proceedings. Thus, the trial court was well aware of the factors
the district attorney contends precluded an exercise of discretion under section 1385.
Nevertheless, the court elected to exercise its discretion to strike the punishment for the
Proposition 8 prior. It explained, “In this matter, given the other – given both the
acceptance of responsibility, I still find that Mr. Gonzalez has some relative – or relevant
and relative youth. My hope is that a 12-year sentence will satisfactorily be a deterrent
21
for any future conduct in this case, particularly, given that in sentencing him within a
strike-sentencing scheme I don’t believe that the additional five years of punishment
would be in the interest of justice in this case. And, therefore, as I indicated earlier, for
that reason, I am not going to be imposing it.”
In articulating these factors (particularly after having recognized other, significant
circumstances in aggravation under the California Rules of Court), the trial court
demonstrated it recognized and had considered such factors as might have persuaded it to
impose the punishment for the five-year enhancement; yet it ultimately concluded, based
on other mitigating factors—particularly Gonzalez’s “acceptance of responsibility,” that
the 12-year (midterm doubled) prison term would serve to deter future criminal conduct
and so imposing the additional five years was not in furtherance of justice. We
furthermore can infer from the court’s finding as to Gonzalez’s acceptance of
responsibility, and in light of its consideration of the parties’ sentencing briefs, that in
drawing this conclusion the court weighed and credited the lengthier statement of
responsibility and discussion of Gonzalez’s character and prospects as presented in
Gonzalez’s papers.
Gonzalez’s sentencing brief described in detail his initial success, upon release in
2018 from his most recent felony commitment, both in obtaining employment and
devoting time toward building a strong, healthy relationship with his daughter, for whom
he “ ‘wanted to be a father, a role model.’ ” Gonzalez began working for his father’s
company in the sheet metal industry in February 2019, but his employment ended shortly
after because his postrelease community supervision did not permit him to continue the
position due to the amount of travel required for the job. Gonzalez’s brief acknowledged
22
that Gonzalez became frustrated and turned to drinking again, leading him to act
recklessly, to lose focus, and to fail to consider the consequences of his actions.6
On this record, we cannot say the trial court’s decision to strike the punishment for
the enhancement was so irrational or arbitrary as to constitute an abuse of discretion.
(Carmony, supra, 33 Cal.4th at p. 377.) The reasons articulated by the trial court for
declining to impose the five-year term attached to the prior serious felony enhancement
in light of the other sentencing factors considered are not outside the bounds of that
which would motivate a reasonable judge exercising its discretion under section 1385.
(Romero, supra, 13 Cal.4th at pp. 530–531.)
In arguing that the trial court’s stated reasons for striking the punishment are not
valid under People v. Williams (1998) 17 Cal.4th 148, the district attorney fails to
acknowledge that a defendant’s acceptance of responsibility—not merely by taking an
early plea but by recognizing the underlying causes and committing to address the related
issues of alcohol and substance abuse—is a consideration that sentencing courts may
properly weigh even under the Three Strikes scheme. As expressed in Williams,
6
In his sentencing brief, Gonzalez expressed that he was “ ‘so frustrated’ with
himself, questioning why he keeps surrendering to addiction and returning to old habits.”
Gonzalez stated that he recognized he turned to alcohol to cope with his feelings of
depression and anxiety and familial pressures. He feared what he would face returning to
prison, from drug addiction, violence, depression and anxiety, but described his daughter
as the one thing that gave him hope. Gonzalez stated that he writes in his journal to his
daughter “[e]very day, . . . apologizing for the actions that l[e]d him here, begging her to
learn from his mistakes, and reminding her that he will always be her biggest fan, her
greatest supporter, and her dad.” Gonzalez stated he is hopeful “that he can regain his
relationship with [his daughter] when he is released from custody and return to his
hobbies of working on cars, bike riding, and listening to music.” He planned to “strive[]
for a union job in the sheet metal industry” and “to obtain a sponsor through Alcoholics
Anonymous, work the steps, join a support group, and continue to fight and conquer his
addiction.” Through programming in custody, Gonzalez stated he was “ ‘really trying to
get the things they teach [him]. [He] want[s] to understand why [he] do[es] the things
[he] do[es]. When [he] get[s] triggered, [he] want[s] to stop [him]self and find a better
route.’ ”
23
“preponderant weight must be accorded to factors intrinsic to the scheme, such as the
nature and circumstances of the defendant’s present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character, and
prospects.” (Id. at p. 161.) Nor is there any evidence in the record to suggest the trial
court here struck the punishment simply because Gonzalez pleaded guilty, “solely ‘to
accommodate judicial convenience or because of court congestion’ ” (Romero, supra, 13
Cal.4th at p. 531), or out of “ ‘a personal antipathy for the effect that the [sentencing
enhancement] would have on [Gonzalez]’ while ignoring ‘defendant’s background,’
[and] ‘the nature of his present offenses.’ ” (Ibid.)
Ultimately, the district attorney takes issue with the trial court’s weighing of
factors in application of the statutory framework “in furtherance of justice” (§ 1385,
subds. (a) and (b)(1)), not with the propriety of factors presented to and considered by the
trial court. But even if this court were to agree with the district attorney that the trial
court gave undue weight to mitigating factors like youth and responsibility while failing
to accord weight to aggravating factors like violence and recidivism, this court’s
disapproval of the trial court’s discretionary exercise does not warrant reversal. “A
reviewing court’s disagreement with the trial court’s weighing of proper factors (as
distinct from the trial court’s reliance on improper factors in the weighing process) does
not constitute an abuse of discretion.” (Dryden, supra, 60 Cal.App.5th at p. 1029.) As a
reviewing court, we are not able to observe the demeanor of the defendant or evaluate his
sincerity in taking responsibility for his criminal acts, and “we therefore do not substitute
our discretion for that of the trial court.” (Id. at p. 1031.)
The district attorney asserts that because Proposition 8 is narrower in scope than
the Three Strikes law (applying to defendants convicted only of a serious felony who
have been previously convicted of one or more serious felonies (§ 667, subd. (a)(1)), as
opposed to defendants convicted of a felony who have a prior serious felony conviction
(§ 667, subds. (b)–(i)), a trial court’s discretion to dismiss a prior strike conviction
24
alleged pursuant to Proposition 8 must be more limited than its discretion to dismiss the
same prior strike conviction alleged pursuant to the Three Strikes law. He offers,
however, no authority for this proposition, and we see no basis for it in the statutory text.
We recognize the district attorney’s frustration with the sentence imposed by the
trial court. Another sentencing judge might have parsed the facts differently or exercised
her discretion to include the additional five-year sentence for the prior serious felony
enhancement in Gonzalez’s aggregate sentence. Gonzalez undoubtedly engaged in
dangerous behavior, causing a serious injury to Edith and recklessly firing a bullet at an
occupied apartment. Gonzalez has been in prison or under supervision for most of his
adult life, and his crimes arguably show an increasing pattern of severity.
On the other hand, Gonzalez is still a young man and presented a number of
mitigating factors in his sentencing papers, notably traumatic childhood experiences that
the Legislature has recently identified as presumptively warranting reduced punishment.
(See § 1170, subd. (b)(6)(A).) Moreover, Gonzalez’s longest prison term before these
offenses had been five years—the trial court’s sentence in this matter is far more severe
than any he had previously received.
We have carefully reviewed the record and the cases relied upon by the district
attorney. As we cannot conclude the trial court misapplied the law or selected a sentence
falling outside the bounds of its discretion, we affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
25
______________________________________
Danner, Acting P.J.
I CONCUR:
____________________________________
Wilson, J.
H048806
People v. Gonzalez
Lie, J., Concurring:
Although I otherwise join the majority’s analysis and conclusions, I
respectfully disagree with the majority’s analysis in section II.B.3. But recent changes to
Penal Code section 1385 appear to have rendered moot the District Attorney’s challenge
to the adequacy of the trial court’s stated reasons for dismissing the serious felony
enhancement under Penal Code section 667, subdivision (a). (See Pen. Code, § 1385,
subd. (c)(2)(B).) Because the Legislature’s amendment of Penal Code section 1385 in
my view makes it unnecessary to address the merits of this particular claim, I will not
belabor them here.
____________________________
LIE, J.
H048806
People v. Gonzalez