People v. Reed CA4/2

Filed 10/10/14 P. v. Reed CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E057411

v. (Super.Ct.No. FSB1202628)

SHAWN ROMAN REED et al., OPINION

Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed with directions.

Jan B. Norman, under appointment by the Court of Appeal, for Defendant and

Appellant, Shawn Roman Reed.

Catherine White, under appointment by the Court of Appeal, for Defendant and

Appellant Gregory Daniel Flores.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Anthony Da Silva, and Peter

Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

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 I

INTRODUCTION

Defendants Shawn Roman Reed and Gregory Daniel Flores appeal their criminal

convictions for gang-related crimes.

The jury convicted Flores of three criminal counts: false imprisonment, making

criminal threats, and street terrorism. (Pen. Code, §§ 236, 422, and 186.22.1) The jury

also found true the allegations of gang-related conduct on counts 1 and 2. (§ 186.22,

subd. (b)(1).) The court sentenced Flores to a total indeterminate prison term of 50 years

to life, plus an additional 25 years, including nine consecutive years for the gang

enhancements.

The jury convicted Reed of false imprisonment and assault with a deadly weapon.

(§§ 236, 245, subd. (a)(1).) The jury also found true the allegations of gang-related

conduct. (§ 186.22, subd. (b)(1).) The court sentenced Reed to 11 years eight months in

prison, including six consecutive years for the gang enhancements.

On appeal, both defendants challenge the sufficiency of the evidence for the gang

allegations. Additionally, Flores challenges his conviction for street terrorism and raises

several issues about the application of the Three Strikes Law.

The parties agree the abstract of judgment should be corrected to show Flores was

convicted of false imprisonment, not kidnapping, and to correct the enhancements. The

parties also agree the case should be remanded for resentencing on Flores’s false

1 All further statutory references are to the Penal Code unless otherwise indicated.

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imprisonment conviction. Otherwise, we reject appellants’ contentions and affirm the

judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

A. Trial Evidence

The testimony of the victim, Ryan Wilhite, and his girlfriend, Jesalyn Price, was

disjointed, confusing, and contradictory. The primary factual dispute involves whether

Reed and Flores were trying to recover money that Wilhite had borrowed from Richard

“Chone” Cabral or whether it was money Wilhite owed to Reed for drugs.

In May 2012, Wilhite borrowed $100 from Cabral. A few days later, when

Wilhite and his girlfriend, Jesalyn Price, entered their Redlands home, Cabral and Luis

“Joker” Irene were waiting inside. Irene shoved Price outside and Cabral and Irene beat

Wilhite until his friend, Curtis, intervened. When Cabral and Irene left, Cabral told

Wilhite, “you better pay me my money or it’s going to get worse.” Because Wilhite was

scared of what might happen if he did not repay the loan, he stayed away from home.

Wilhite did not immediately report the attack because Wilhite did not want to “mess”

with members of the Varrio Redlands street gang.2

About May 25, 2012, when Wilhite received his disability paycheck, he paid

Cabral the $100 that he originally borrowed. However, Cabral told Wilhite that he owed

an additional $100.

2 Defendants stipulated that the Varrio Redlands gang is a criminal street gang.

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 On May 30, 2012, Cabral and Irene returned a second time, demanded more

money, and beat Wilhite almost to unconsciousness. Cabral struck the left side of

Wilhite’s head and caused a severe cut.

On June 1, 2012, Wilhite contacted police and reported the second attack. Before

the police arrived, Wilhite hid in a drainage ditch near his residence.

Price testified that, between June 1 and June 15, 2012, Cabral came by their home

every day looking for Wilhite. Reed came by “off and on.” Reed was Price’s former

boyfriend.

Wilhite testified Reed sold him and Price $100 worth of methamphetamine on

June 14, 2012, on the condition they pay Reed later. Wilhite pawned a water cooler for

$40 on June 15, 2012, and paid Reed that money and owed him $60.

Price testified somewhat differently that Reed gave her $20 worth of

methamphetamine on June 15 on the condition Wilhite pay him later. Immediately

afterwards, Reed and Flores came to Price and Wilhite’s home. Price said Reed knew

Wilhite owed $100 to Cabral, which was separate from the $20 Wilhite owed Reed.

Wilhite testified that Flores, “Shy Boy,” and Reed, “Yogi,” came back to his

house on June 15, 2012 and asked for money, some of which was the drug debt owed to

Reed. Wilhite later told Redlands Police Officer Betty that defendants had also attempted

to collect the money for Cabral. He did not tell the officer that Reed had sold

methamphetamine to him and Price.

Reed threatened to “carve” Wilhite and sliced his chest with a razor. Flores and

Reed left but then returned between 2:00 and 4:00 a.m. on June 16, 2012. They said they

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had a flat tire and needed a place to stay. When Wilhite refused, they left again and, at

9:00 a.m., Reed sent a text message from the Stardust Motel asking Wilhite for money.

Wilhite called the police, who waited briefly outside Wilhite’s house before leaving on

another call.

As Wilhite was leaving his home, Flores and Reed drove up and ordered him into

their car. Wilhite told the police that Flores had grabbed him by the neck and forced him

into the car, striking his head on the doorjamb. At trial, he was equivocal about whether

he was forced. Reed demanded the money and Wilhite offered to take them to his

uncle’s real estate office in San Bernardino. When they arrived at the office, Wilhite

went inside and called the police to report he was being kidnapped and he was going to

try to return with defendants to a Redlands Starbucks. He took a drill from the office to

offer as collateral but defendants wanted money. At the Starbucks, Wilhite made contact

with the police who arrested defendants.

Officer Betty testified that Wilhite’s statements included the information that Reed

and Flores had arrived at Wilhite’s home on June 15. Wilhite did not say exactly what

defendants said but he did tell Officer Betty that Reed demanded that Wilhite pay the

debt he owed to Cabral. Flores warned he would beat up Wilhite and Price if Wilhite did

not pay.

Redlands Police Officer, Kyle Alexander, testified as the prosecutor’s gang expert.

He had served six years in the police department and on the county’s gang suppression

team for the past three years. He had received more than 140 hours of gang-related

training. Officer Alexander testified about gang culture and how gang members commit

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crimes to intimidate other gangs and the surrounding community so that the gang will be

“respected.” He also testified about the Varrio Redlands street gang, its territory, and the

use of street monikers.

Officer Alexander talked to Wilhite on June 1, 2012, after Wilhite had been hiding

in a ditch. Wilhite was petrified and scared. He told the officers that Cabral or Cabral’s

people were looking for him. He did not say that he owed Reed money for drugs.

One week before testifying in this trial, Wilhite encountered Irene on the street.

Irene warned Wilhite not to testify or “it’s going to be all bad.” The day before Wilhite

testified, he encountered Reed on the jail transport bus. Reed told Wilhite to claim that

he had been “high” and did not know what he was doing. Otherwise, “it’s going to be all

bad.” Wilhite interpreted Reed’s statement as a threat.

B. Defendants’ Arguments

Defendants did not testify.

Defense counsel for Flores argued that Wilhite and Price were not credible

witnesses. Cabral was not arrested or charged with crimes. Counsel argued that Wilhite

actually owed money to Reed who sold him methamphetamine and that Wilhite did not

owe money to Cabral. Counsel admitted that Flores had some connection to the Varrio

Redlands street gang. However, Flores did not kidnap Wilhite because Flores drove

Wilhite where he wanted to go—his uncle’s office and the Redlands Starbucks. Counsel

also argued Flores’s conditional statement to Wilhite did not threaten anyone with

immediate harm. No evidence was presented that Cabral had any connection with Flores

and Reed. The prosecutor failed to prove that Flores committed any crime for the benefit

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of a criminal street gang. Counsel argued that none of the charges against Flores had

been proven beyond a reasonable doubt.

Defense counsel for Reed argued that Wilhite’s trial testimony—that Wilhite was

beaten for failing to pay Reed for methamphetamine—was more persuasive than

Wilhite’s pretrial, unsworn statements to police that he was beaten and hunted by Reed

and Flores under orders by Varrio Redlands street gang leader Cabral. Counsel argued

that Wilhite’s report to officers that Reed demanded, “where’s my money,” should be

interpreted as Reed demanding money for the methamphetamine not a demand for money

Wilhite owed to Cabral. Reed and Flores were not collecting money on behalf of the

Varrio Redlands street gang leader Cabral. Finally, counsel argued no kidnapping

occurred because Wilhite voluntarily accompanied Reed and Flores and Wilhite

fabricated the assault.

III

GANG ENHANCEMENTS

Defendants argue that insufficient evidence supports the jury’s true findings that

Reed committed false imprisonment (count 4) and assault with a deadly weapon (count 5)

and Flores committed false imprisonment (count 1) and criminal threat (count 2), for the

purpose of benefiting a criminal street gang within the meaning of section 186.22,

subdivision (b). Reed contends the evidence showed only that Reed was seeking

payment from Wilhite for drugs and no evidence proved that Reed was a gang member,

acting as an intermediary between Wilhite and the Varrio Redlands street gang. Flores

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admits he may have been a member of the Varrio Redlands gang but he contends he was

a disinterested chauffeur when Reed asked him to drive Wilhite somewhere to get money.

We conclude that sufficient evidence proved defendants attacked Wilhite and

forced him into their car so Wilhite could get money to pay Cabral, a Varrio Redlands

gang member. The jury resolved the disputed facts in favor of the prosecution and found

that Reed and Flores had committed their respective crimes to benefit the Varrio

Redlands gang.

A. Gang evidence

As already noted, defendants stipulated that the Varrio Redlands gang is a criminal

street gang. The gang expert, Officer Alexander, testified to having many years of gang-

related training and experience. He explained how street gangs operate by committing

crimes to intimidate the surrounding community and other gangs and to protect their

territory. The gangs are hierarchical with leaders and street soldiers who act on orders.

Alexander investigated crimes committed by Varrio Redlands. He qualified as an expert

witness about the gang, whose primary activities are selling methamphetamine, and

committing robbery, forgery, burglary, car theft, kidnapping, carjacking, stabbing,

shooting, and murder. Alexander offered an interpretation of Flores and Irene’s gang

tattoos on his chest.

The gang’s criminal history was extensive. In February 2008, a gang member,

Oscar Correa, shot at a group of people at a party because two rival gang members were

present. Correa pleaded guilty to committing assault with a deadly weapon. In May

2009, another gang member, Jose Lara, was arrested for possession of narcotics and

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marijuana for sale and for unlawfully possessing a firearm. Lara’s home was used as a

gang hideout. A third gang member, Mark Manzano, was convicted of committing a

carjacking in July 2001. Another gang member, Salman Villarea, was arrested in

October 2008 and April 2012, and convicted for being a felon in possession of a gun.

Officer Alexander knew Cabral personally. In July 2003, Cabral was arrested and

convicted for stealing a vehicle and possessing methamphetamine for sale. In August

2006, Cabral was arrested and convicted for evading a police officer. Cabral is a high-

ranking Varrio Redlands gang member, a “shot caller”, and a “key holder,” an acting

chief of the gang. Cabral directed Varrio Redlands’s criminal activities, including

punishing those gang members who did not follow his orders.

Officer Alexander also testified that Flores and three Varrio Redlands gang

members were arrested and convicted in February 2003, after shots were fired at

Redlands police officers. Flores was convicted of assault with a firearm, and possession

of a handgun. Flores also admitted that he committed those crimes to benefit a criminal

street gang. Flores was convicted in June 2008 of possessing narcotics for sale and

Flores admitted that he committed that crime for the benefit of a criminal street gang.

When Redlands police officers contacted Flores in June 2012, Flores told them that he

was a Varrio Redlands gang member. Between 2003 and 2012, Flores admitted on

multiple occasions that he was a gang member. In the eight field contacts and four jail

classification contacts that Flores had with sheriff’s deputies, Flores admitted being a

Varrio Redlands gang member. Other Varrio Redlands gang members, including his

half-brother, claimed Flores as being a fellow gang member.

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 Officer Alexander opined that Flores is an active member of the Varrio Redlands

criminal street gang, based on Flores’s prior crimes, numerous contacts with and

admissions to law enforcement, documented contacts with other Varrio Redlands gang

members, and his gang tattoos.

Officer Alexander also answered a hypothetical question about gang involvement

based on the facts of this case: a person not repaying a $100 loan from a gang member;

the gang member adding a “tax” for late repayment; two gang members beating up the

borrower; a third gang member and a cohort threatening the borrower and using a metal

object to slash the borrower’s chest; and the third gang member and cohort forcibly

driving the borrower to different locations to collect money owed to the first gang

member. Based on these hypothetical facts, Alexander opined that the third gang

member and cohort acted for the benefit of the criminal street gang because it is not

uncommon for an older gangster to order a younger gang member to collect a debt. The

officer also stated that, because a nongang member assists a gang member to commit a

crime does not lessen the benefit to the gang. If Irene, a gang member, and Reed, a

nongang member, threatened Wilhite about testifying, that conduct was a form of

intimidation that benefited a criminal street gang.

Additionally, Wilhite, with Price present during the interview, told the police that

Reed and Flores had demanded on June 15, 2012, that Wilhite pay the money that he

owed to Cabral. Wilhite said Reed had made the actual demand and Flores said he would

beat up Wilhite and Price if Wilhite did not pay. Wilhite also testified that, when Reed

and Flores arrived at his home at night on June 15, Wilhite understood they wanted

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Cabral’s money and it was not because Wilhite owed money to Reed for drugs. Price

also testified that Reed knew that Wilhite owed money to Cabral, and that Wilhite’s debt

to Cabral was separate from the money that Wilhite owed Reed.

B. Sufficiency of Evidence

On appeal, we apply the substantial evidence standard of review, viewing the

evidence in the light most favorable to the judgment. Substantial evidence is, evidence

that is reasonable, credible, and of solid value, such that a reasonable trier of fact could

find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26

Cal.3d 557, 578; People v. Maury (2003) 30 Cal.4th 342, 396.) A reviewing court does

not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility

of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51

Cal.3d 294, 314.) Resolution of conflicts and inconsistencies in the testimony is the

exclusive province of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

Section 186.22, subdivision (b)(1), prescribes a sentence enhancement for crimes

“committed for the benefit of, at the direction of, or in association with any criminal

street gang, with the specific intent to promote, further, or assist in any criminal conduct

by gang members . . . . “ (§ 186.22, subd. (b); In re Daniel C. (2011) 195 Cal.App.4th

1350, 1358.) Expert testimony may prove the necessary elements. (People v.

Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) However, the record must provide

additional evidentiary support—other than the defendant’s record of offenses and past

gang activities or personal affiliations—for a finding that the crime was committed for

the benefit of, at the direction of, or in association with a criminal street gang. (People v.

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Ochoa, supra, 179 Cal.App.4th at p. 657.) Here, our independent review concludes

sufficient evidence supported the jury’s true finding that Reed and Flores each acted to

benefit the Varrio Redlands gang.

Both defendants committed felonies for the benefit of, at the direction of, or in

association with a criminal street gang. (In re Daniel C., supra, 195 Cal.App.4th at p.

1358.) Flores committed false imprisonment of Wilhite and made criminal threats to

Wilhite for the benefit of the Varrio Redlands gang. The expert witness testimony and

Wilhite’s statements to the police permitted the jury reasonably to conclude that Flores

committed the felonies of false imprisonment and criminal threat for the benefit of, at the

direction of, or in association with the Varrio Redlands criminal street gang.

Officer Alexander admitted that he did not have any background information

about Reed being a member of the Varrio Redlands gang. However, Reed tried to

prevent Wilhite from testifying by threatening him before trial. Officer Alexander

testified that Reed acted to benefit a criminal street gang because he “was willing to act

as a gang member by intimidating somebody and threatening somebody, a witness, in

hopes . . . to instill fear in the witness to prevent him” from testifying against the gang or

a gang member. Officer Alexander’s analysis of the hypothetical question—that included

the nongang cohort using a metal object to cut a design in the chest of a person who owed

money to a gang member—determined that the nongang cohort’s action also benefited

the criminal street gang because it was undertaken to satisfy a debt owed to a high

ranking gang member.

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 Additionally, Wilhite testified that, on June 15, Reed, with Flores, demanded that

Wilhite give Reed the money owed to Cabral. Wilhite also testified inconsistently that he

was confused about whether Reed wanted the money for Cabral or for himself. The jury

could reasonably conclude that Reed’s demand for Cabral’s money was for the benefit of

the Varrio Redlands gang and was not related to the money owed by Wilhite and Price to

Reed.

Sufficient evidence also supported the jury’s findings that Reed and Flores

committed the charged crimes with the specific intent to promote, further, or assist the

criminal conduct of Varrio Redland’s gang members. Flores, an admitted gang member,

accompanied Reed to collect on Wilhite’s debt to Cabral. Subsequently, both engaged in

false imprisonment and other criminal conduct to execute their mission with the specific

intent to promote the street gang. Based on the testimony of Officer Alexander, Wilhite,

and Price, sufficient evidence supported the jury’s true findings that defendants

committed their respective crimes for the benefit of a criminal street gang. (§ 186.22,

subd. (b).)

IV

STREET TERRORISM

In a similar argument, Flores argues his conviction for committing street terrorism

(§ 186.22, subd. (a)) is not supported by sufficient evidence that he actively promoted or

participated in a criminal street gang. We conclude substantial evidence established that

Flores knew, promoted, and actively participated in the Varrio Redlands gang’s principal

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criminal activities. The gang expert’s testimony on this point was amply corroborated by

Wilhite and Price’s testimony.

Street terrorism has three elements: 1) the defendant’s active participation in a

gang that is more than nominal or passive; 2) the defendant’s knowledge that the gang

members engage in or have engaged in a pattern of criminal gang activity; and 3) the

defendant “‘willfully promotes, furthers, or assists in any felonious criminal conduct by

members of that gang.’” (People v. Lamas (2007) 42 Cal.4th 516, 523.)

Officer Alexander testified that the primary criminal activities of the Varrio

Redlands gang is selling methamphetamine, and committing robbery, forgery, burglary,

car theft, kidnapping, carjacking, stabbing, shooting, and murder. Flores admitted to

being a gang member and his gang-related criminal history was continuous from 2003

until 2012. He committed multiple offenses involving firearms and drugs while

associating with other Varrio Redlands gang members and sporting gang tattoos.

In this instance, Flores joined forces with Reed to collect Cabral’s money from

Wilhite. While Reed used a razor to cut Wilhite’s chest, Flores blocked Wilhite from

leaving.3 Flores threatened to beat Wilhite and Price if Wilhite did not repay Cabral.

Flores drove the car in which Wilhite was restrained. Based on these facts, the jury could

readily find that Flores participated actively in extorting money from Wilhite. On that

basis, Flores willfully promoted, furthered, or assisted in a felonious criminal gang

activity. (People v. Lamas, supra, 42 Cal.4th at p. 523.) Viewed in the light most

3 Reed conducted himself like a gang member and on behalf of and to benefit a
criminal street gang. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1132.)

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favorable to the judgment, the record contains sufficient evidence to sustain the jury’s

findings that Flores’s crimes were gang-related for purposes of section 186.22,

subdivision (a).

V

FLORES’S JUVENILE OFFENSE

Section 667, subdivision (d)(3)(A)—the use of a juvenile adjudication for the

purpose of imposing a Three Strikes sentence—requires a showing that Flores was 16

years old or older when he committed second degree robbery as a juvenile. Contrary to

Flores’s claim, sufficient evidence was presented in the bifurcated court trial that Flores

was 17 years old when he committed the robbery that was adjudicated by the juvenile

court in 1998.4

The prosecutor specially alleged Flores was adjudicated by a juvenile court to

have committed serious or violent felony crimes in three cases: robbery (§ 211) about

which the juvenile court made a true finding in 1998, in superior court case No.

YA80266; and two separate crimes (§ 186.22) for which he was convicted on October 23,

2003, and July 2, 2009, in superior court case Nos. FRE05942 and FSB902225,

respectively.

At the bifurcated court trial, the court reviewed records of Flores’s prior crimes.

The records of the adult offenses in 2003 and 2009 included the information that Flores

was born on October 14, 1980, and his convictions were “strike” convictions. Exhibit 48

4 According to the probation report, Flores was born on October 14, 1980.

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pertains to the true finding by the Superior Court of Flores’ second degree robbery in the

juvenile case, number YA80266, in 1998. The court noted that Flores was born on

October 14, 1980; it found true that Flores was 17 years old when the juvenile court

rendered its disposition in 1998; and the true finding was a “strike” conviction.

At the close of the bifurcated hearing, Flores’s defense counsel objected to the

court considering Flores’s 2003 street terrorism conviction in case No. FRE05942 as a

“strike” conviction and reasoned that conviction for street terrorism was not a “strike”

conviction on October 23, 2003. Later court decisions held that convictions for street

terrorism were retroactively considered as “strike” convictions.

Flores did not object to the trial court’s true finding that he was at least 17 years

old when he committed the second degree robbery. He has forfeited this challenge for

appellate review. Even if Flores had timely objected to the trial court finding concerning

his 1998 second degree robbery conviction, the court could have continued the

proceedings for clarification. However, failure to make a timely objection forfeits the

issue. (See People v. Simon (2001) 25 Cal.4th 1082, 1103.)

Even if reviewable on the merits, the prosecutor’s evidence established that Flores

was 16 years or older when he committed the underlying second degree robbery. Flores

turned 16 on October 14, 1996. In 1998, he was 17 years old until he turned 18 in

October 1998. Sufficient evidence supported the trial court’s true finding that Flores was

over 16 years old when he committed the underlying robbery, which was a “strike” for

purposes of imposing a Three Strikes sentence.

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 Additionally, we reject the contention that the trial court improperly sentenced

Flores because it wrongly relied on his 1998 juvenile adjudication as a basis for finding

him eligible to be sentenced under the Three Strikes law. The California Supreme

Court’s decision in People v. Nguyen (2009) 46 Cal.4th 1007, 1028, holds that “the

absence of a constitutional or statutory right to jury trial under the juvenile law does not,

under Apprendi [v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]],

preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the

maximum sentence for a subsequent adult felony offense by the same person.” The

Nguyen court held that a prior juvenile adjudication could constitutionally be used as a

strike under California’s Three Strikes law in subsequent adult proceedings even though

juveniles are not entitled to a jury trial. (Nguyen, at p. 1028.) The Nguyen court

reasoned that the use of reliably obtained juvenile adjudications to enhance later adult

criminal proceedings does not offend an adult defendant’s constitutional right to a jury

trial in adult criminal proceedings. (Id. at p. 1021.) If an accused adult is accorded his

right to a jury trial in the adult proceeding as to all facts that influence the maximum

permissible sentence, no reason appears why a constitutionally-reliable prior adjudication

of criminality, obtained pursuant to all procedural guarantees—specifically including the

right to proof beyond a reasonable doubt—should not also be for that sentencing

purposes. (Id. at p. 1023.) The Nguyen court concluded “the Fifth, Sixth, and Fourteenth

Amendments, as construed in Apprendi, do not preclude the sentencing-enhancing use,

against an adult felon, of a prior valid, fair, and reliable adjudication that the defendant,

while a minor, previously engaged in felony misconduct, where the juvenile proceeding

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included all the constitutional protections applicable to such matters, even though these

protections do not include the right to jury trial.” (Id. at p. 1019.) We are bound by the

Nguyen holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454-

455.) Furthermore, Flores’s 2003 and 2009 felony convictions make him subject to being

sentenced under the Three Strikes law. (§§ 667, subd. (e)(2)(A), 1192.7, subd. (c)(28).)

The 1998 juvenile adjudication for robbery was properly relied upon by the trial

court to find Flores eligible for sentencing under the Three Strikes law. The true findings

that he was convicted of street terrorism in 2003 and 2009 also rendered him subject to

being sentenced under the Three Strikes law.

VI

FLORES’S CONVICTION FOR FALSE IMPRISONMENT

On count 1, the jury acquitted Flores of kidnapping, convicting him instead on the

lesser included offense of false imprisonment (§ 236). The jury further found the gang

enhancement (§ 186.22, subd. (b)) allegation true as to this count.

Under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) as it existed before

Proposition 36,5 a defendant convicted of two prior serious or violent felonies would be

subject to a sentence of 25 years to life upon conviction of a third felony. Under the

Reform Act, however, a defendant convicted of two prior serious or violent felonies is

subject to the 25-year-to-life sentence only if the third felony is itself a serious or violent

felony. If the third felony is not a serious or violent felony, the court will sentence

5On November 6, 2012, voters approved Proposition 36, the Three Strikes
Reform Act of 2012 (the Reform Act).

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defendant as though the defendant had only one prior serious or violent felony

conviction, and is therefore a second-strike, rather than a third-strike, offender.

Here, the trial court found that false imprisonment in count 1 was a “serious”

felony within the meaning of the revised Three Strikes law because of the gang

enhancement. Finding that the false imprisonment was a serious felony, the court

imposed an additional five-year term under section 667, subdivision (a), and an additional

four-year term under section 186.22, subdivision (b)(1).

However, false imprisonment is not a serious felony. While section 1192.7,

subdivision (c)(28), makes “any felony offense, which would also constitute a felony

violation of Section 186.22” a serious felony, the California Supreme Court has explained

this provision is only applicable when the defendant reoffends: “Thus, section

186.22(b)(1)(A), (B), and (C) speaks to an event that occurs in the current proceeding.

Section 1192.7, subdivision (c), on the other hand, comes into play only if the defendant

reoffends, at which time any prior felony that is gang related is deemed a serious felony.

Thus, any felony that is gang related is not treated as a serious felony in the current

proceeding, giving effect to section 186.22(b)(1)(A). . . . [¶] [W]hile it is proper to

define any felony committed for the benefit of a criminal street gang as a serious felony

under section 1192.7(c)(28), it is improper to use the same gang-related conduct again to

obtain an additional five-year sentence under section 186.22(b)(1)(B).” (People v.

Briceno (2004) 34 Cal.4th 451, 465.) Therefore, the false imprisonment count was not as

a serious felony for sentencing. The court should have calculated the term of the

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enhancement based on section 186.22, subdivision (b)(1)(A) (one-third of the middle

term of three years, or one year).

Furthermore, the abstract of judgment should be corrected to show that Flores was

convicted of false imprisonment, not kidnapping, and that the court imposed the single

one-year term under section 667.5; the remaining three terms were five-year terms

imposed pursuant to section 667, subdivision (a).

VII

DISPOSITION

We remand so that the trial court may correct the abstract of judgment to reflect

that Flores was convicted of false imprisonment not kidnapping and that the court

imposed a consecutive one-year sentence enhancement pursuant to section 667.5 and

three consecutive five-year sentence enhancements pursuant to section 667.

Additionally, the court should resentence Flores on the false imprisonment conviction,

according to the Three Strikes Reform Act.

Otherwise, we affirm the judgment against Flores and Reed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

RAMIREZ
P. J.

KING
J.

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