Filed 11/17/21 P. v. Floyd CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089078
Plaintiff and Respondent, (Super. Ct. No. 17FE019822)
v.
JEFFREY VAUGHN FLOYD,
Defendant and Appellant.
A jury found defendant Jeffrey Vaughn Floyd guilty of felon in possession of a
firearm, along with a gang enhancement for committing the crime for the benefit of and
in association with a criminal street gang. With a strike and recidivist enhancements, he
was sentenced to an aggregate thirteen-year term.
Defendant contends insufficient evidence supported the gang enhancement. As to
that contention, we consider whether, as defendant asserts, his possession of a firearm by
a rap artist during the creation of a rap video was intended to facilitate defendant’s art and
thus was not possessed for the benefit of and/or in association with a criminal street gang
1
with the intent to promote, further or assist in any criminal conduct by gang members.
We conclude this is not an either-or proposition — both can be true. A gang member can
have multiple motives for his conduct and those motives can be both personal and gang-
related. Accordingly, we conclude substantial evidence supports the gang enhancement
here.
We, however, agree with defendant’s other contentions concerning Senate Bill No.
136 (2019-2020 Reg. Sess.) (Senate Bill No. 136) and Senate Bill No. 1393 (2017-2018
Reg. Sess.) (Senate Bill No. 1393). We thus strike the one-year prison term imposed
under Penal Code section 667.5, subdivision (b)1 and remand for resentencing so the
court may consider whether to exercise its discretion to strike or dismiss defendant’s
section 667, subdivision (a) enhancement in furtherance of justice under section 1385,
subdivision (a)
We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution’s Evidence
The Charged Incident
On October 23, 2017, multiple gang suppression officers arrived at an apartment
complex in Sacramento to execute a felony arrest warrant on Clarence Starnes. The
complex was in an area known to be occupied and frequented by members of the Trigga
Mob gang. When the officers arrived, five men, including defendant, took off running.
Defendant, Starnes, Legend Lewis, Kenneth Andrews, and Coddie Williams were
ultimately arrested. Three loaded handguns were recovered from the opposite side of a
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
2
nearby fence — a .45-caliber semiautomatic and two nine-millimeter semiautomatics.2 A
loaded nine-millimeter semiautomatic was found on Lewis.
Recovered from Williams was a GoPro video camera containing videos clips
recorded that day at the apartment complex. In one video clip, defendant is depicted
holding a handgun and taking apparent direction from someone behind the camera to put
the gun in his pocket and pull it out on cue. The gun defendant held was one of the guns
found on the other side of the fence. Another clip depicts a simulated robbery and
shooting. It begins with Starnes taking a backpack off his back, opening it up and
showing the contents to defendant and Andrews. Defendant then removes a handgun
from the backpack in an apparent theft. Starnes then runs around the corner of a building,
and defendant and Andrews chase Starnes simulating a shooting as Starnes falls to the
ground. Another clip shows the chase from the opposite direction and Andrews pointing
a handgun as he runs. In another clip, defendant is seen rapping with several men behind
him at the corner of the building where the simulated robbery/shooting took place. Lewis
and Andrews brandish handguns in the background while defendant counts a stack of
money and raps.
The Gang Expert Testimony
At trial, several gang experts testified, providing the following testimony.
Defendant, Starnes and Andrews are Trigga Mob gang members.3 The area where the
arrest took place is “dominated by” Trigga Mob. The primary activities of Trigga Mob
are robbery, felon in possession of a firearm, assaults with firearms and other firearm-
2 Defendant was charged with possessing the three handguns found on the opposite side
of the fence. The prosecution argued that they were jointly possessed by defendant and
other gang members.
3 Regarding defendant, in summary, the expert based his opinion on defendant’s
association with Trigga Mob gang members, posting videos that contain gang-related
indicia, and defendant displaying gang-related hand signs in those videos.
3
related crimes. The “three main pillars” of Trigga Mob are generating revenue through
legal and illegal means, power, and respect. The gang’s power comes from possessing
firearms and having influence in the community “so that way they can get away with
their criminal activities without the threat of community members calling the police.”
They gain respect by their activities and the crimes they commit causing intimidation and
fear in the community and other gang members.
One of the primary means of communication between rival gangs in Sacramento is
through rap music videos. Rap music glorifying and bragging about gang violence is
central to Sacramento gangs. Sacramento gangs post rap videos online to call out other
gangs and to claim themselves as more violent. Gangs will also brag online about
crimes, violence, and shootings
Trigga Mob made a number of rap videos at the apartment complex where the
arrests took place. In the videos, Trigga Mob gang members disrespect rival gangs. In
the three years preceding the charged incident, numerous YouTube videos and Facebook
photos were posted on the Internet featuring defendant, referencing gang-related
incidents and insulting rival gangs. And in one video, defendant pledges allegiance to
“my organization,” which the expert opined was Trigga Mob.
Trigga Mob has been involved in back and forth videos with rival gangs. A “dis”
rap video would be released and the rival gang would respond with violence and then rap
about what they had done and “throw a dis back towards the other side.” And because of
the violence, gang members armed themselves with firearms so they would not “get
caught slippin.”
One expert opined on the meaning of several lyrics in the video recovered on the
day of the arrest. Defendant’s lyric, “ ‘All that money we was makin’, even if we have to
strip a nigga naked we would do it,’ ” referenced an assault that occurred five days before
the charged incident, where Trigga Mob members assaulted a member of a rival gang.
As to the lyric “ ‘Gucci on the plate for the pistol like it’s the fashion, south sac, back to
4
back, Trigga,’ ” the expert opined that “Gucci” is a reference to the two-G symbol for
Gucci which is associated with the Guttah Gas gang, a Trigga Mob ally; “Trigga”
referred to the Trigga Mob gang.
In response to a hypothetical based on the facts of this case, an expert opined that
defendant possessed the charged firearms for the benefit of the Trigga Mob gang and in
association with Trigga Mob gang members.
Regarding gang benefit, the demonstration of firearm possession in music videos
benefits Trigga Mob because it shows the gang’s ability to get firearms as well as its
ability to commit violent crimes as a group. This increases the gang’s influence in the
community and its ability to continue criminal activities without community members
calling the police. For example, the video that the gang suppression unit interrupted
involving a simulated robbery and shooting “showcase[d] the kind of behavior that they
would participate in with that firearm.” It also showed the ability of the gang to commit
acts of violence as a group.
Regarding gang association, the firearm possession here was in association with
Trigga Mob because there were multiple validated Trigger Mob members at the video
shoot. And “[t]here are multiple members who are in possession of firearms illegally,
whether it be due to the firearm itself, the condition that it’s in, being that they’re loaded,
being that they’re unregistered, being that they’re being concealed in public.”
Defense Evidence
The defense maintained that defendant’s firearm possession was merely a prop
used to further his rap career, and he was not possessing it to promote Trigga Mob. The
defense presented evidence that in the 11 months preceding the incident, defendant was
living with his father and attending a music school in Riverside. Aside from the day of
his arrest in the charged incident, defendant had not traveled to Sacramento since moving
south.
5
Verdict and Sentencing
The jury found defendant guilty of possession of a firearm by a felon (Pen. Code,
§ 29800, subd. (a)(1)) and found true a street gang enhancement (§186.22, subd. (b)(1)).
The trial court found that defendant had suffered a prior serious felony conviction (§ 667,
subds. (a)) and had served a prior prison term for unlawful possession of a firearm
(§ 667.5 (b)).
The trial court sentenced defendant to an aggregate 13-year term, calculated as
follows: four years for possessing a firearm (the middle term doubled for the strike), plus
the three-year middle term for the gang enhancement, five years for the prior serious
felony enhancement, and one year for the prior prison term enhancement.
DISCUSSION
I. Sufficiency of the Evidence Supporting the Gang Enhancement
Defendant challenges the sufficiency of the evidence supporting the gang
enhancement. He argues insufficient evidence established that his possession of the gun
benefited a criminal street gang or that he committed the act with the requisite intent to
promote any criminal conduct by gang members. He argues “it is clear that [defendant’s]
intention in possess[ing] the firearm was to promote himself as a rap artist.” He further
maintains that “no specific evidentiary support” underlay the gang expert’s opinion that
he possessed a firearm in the videos to benefit the Trigga Mob gang, and he notes that he
did not display gang signs, engage in gang graffiti, or wear clothing promoting Trigga
Mob in the video recorded on the day of his arrest. Defendant argues he is a victim of
guilt by association. We conclude that the evidence — which includes defendant’s rap
videos promoting the gang — sufficed to support the jury’s gang enhancement finding.
The gang enhancement requires that the prosecution establish: (1) the crime was
“committed for the benefit of, at the direction of, or in association with any criminal
street gang,” and (2) the crime was committed “with the specific intent to promote,
further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1);
6
People v. Albillar (2010) 51 Cal.4th 47, 59 (Albillar); People v. Ramirez (2016) 244
Cal.App.4th 800, 818; People v. Rios (2013) 222 Cal.App.4th 542, 561.) We refer to
these two prongs as the “gang-related prong” and the “specific intent prong.” (Ramirez,
at p. 818.)
As this court has previously noted, “[t]here is no requirement that the defendant be
an active or current member of the gang to establish the enhancement under section
186.22, subdivision (b)(1).” (People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 539.)4
But gang membership is “circumstantial evidence establishing that the crime was gang-
related and a motive for why a defendant may have harbored the ‘specific intent to
promote, further, or assist in any criminal conduct by gang members.’ ” (Ibid.)
As to the gang-related prong, “ ‘[e]xpert opinion that particular criminal conduct
benefited a gang’ . . . can be sufficient to support [a] gang enhancement.” (People v.
Vang (2011) 52 Cal.4th 1038, 1048 (Vang).) And expert opinion that such conduct
“benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the
inference that the conduct was ‘committed for the benefit of . . . a[] criminal street
gang’ . . . .” (Albillar, supra, 51 Cal.4th at p. 63.)
As to the specific intent prong, courts recognize that specific intent to promote,
further, or assist, “usually must be inferred from the facts and circumstances surrounding
the offense” and is rarely “susceptible of direct proof.” (Rios, supra, 222 Cal.App.4th at
pp. 567-568.) And “if substantial evidence establishes that the defendant intended to and
did commit the charged felony with known members of a gang, the jury may fairly infer
that the defendant had the specific intent to promote, further, or assist criminal conduct
by those gang members.” (Albillar, supra, 51 Cal.4th at p. 68.)
4 Defendant asserts he is not a Trigga Mob gang member and the evidence was
insufficient to establish he is. We disagree that the evidence was insufficient in this
regard, but even if it was, given the other evidence, that deficiency would not alter the
result.
7
On appeal, we review the sufficiency of the evidence supporting a gang
enhancement “in the light most favorable to the judgment to determine whether it
contains substantial evidence.” (Albillar, supra, 51 Cal.4th at p. 60.) Substantial
evidence includes circumstantial evidence and the reasonable inferences allowed
therefrom. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) “If the circumstances
reasonably justify the trier of facts’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.” (Albillar, at p. 60.) In other words, “ ‘[a] reversal for insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Penunuri (2018) 5
Cal.5th 126, 142 (Penunuri.))
Here, substantial evidence supports both prongs of the gang enhancement. As to
the gang related prong, the evidence supports two section 186.22, subdivision (b)
theories: “for the benefit of” and “in association with.” And only one theory need be
proven to support a true finding on the enhancement. (People v. Morales (2003) 112
Cal.App.4th 1176, 1198 [only one of the three gang-related prong theories need be
proven — the crime was committed “(1) for the benefit of, (2) at the direction of, or (3) in
association with a gang”].)
As for the “for the benefit of” theory, there was expert testimony that possessing
firearms in music videos posted on the Internet showed Trigga Mob’s ability to acquire
firearms and to commit violent acts as a group. Indeed, the video defendant and the other
Trigga Mob gang members were recording when interrupted by gang suppression officers
“showcased[d]” behavior they would engage in with firearms. And it demonstrated their
ability to commit acts of violence as a group. This increases the gang’s influence in the
community and fosters an environment where community members are intimidated and
unwilling to call the police. That testimony, along with video evidence of defendant and
other Trigga Mob members possessing and brandishing concealable firearms supports the
8
jury’s finding that defendant’s gun possession was committed for the benefit of a gang.
(See People v. Vang, supra, 52 Cal.4th at p. 1044 [gang experts may testify about the
culture and habits of gangs]; Albillar, supra, 51 Cal.4th at p. 63 [relying on expert
opinion that reports of violent conduct by way of mainstream media or word of mouth
benefited the gang by raising the level of fear and intimidation in the community].)5
The evidence also satisfies the gang related prong under a “in association with”
theory. Defendant indisputably possessed a firearm in the presence of known Trigga
Mob gang members. Indeed, during one of the video clips, defendant is depicted as
taking physical possession of one of the guns from a backpack carried by Starnes, another
Trigga Mob gang member. In this scene Andrews, also a Trigga Mob gang member, had
a concealed firearm as well. Thus, substantial evidence supported a finding that
defendant and fellow gang members “came together as gang members” to jointly possess
the firearms used in the video. (See Albillar, supra, 51 Cal.4th at p. 62 [concluding that
there was substantial evidence codefendant gang members “came together as gang
members” to commit sexual assault crimes and thus “they committed these crimes in
association with the gang”]; Morales, supra, 112 Cal.App.4th at p. 1198 [“The jury could
5 Defendant points to two cases finding insufficient evidence to support a gang
enhancement: People v. Ochoa (2009) 179 Cal.App.4th 650, 653, 662 [insufficient
evidence supported first prong, where defendant acted alone in committing a carjacking
and the offense did not occur in his gang’s territory] and In re Daniel C. (2011) 195
Cal.App.4th 1350, 1361-62 [insufficient evidence supported second prong where
defendant robbed a liquor store alone after his companions, known gang members, had
left]. Defendant argues a similar lack of evidence exists here. We are unpersuaded. For
one, in those cases, the defendants acted alone, while here defendant jointly possessed
guns with Trigga Mob members. For another, a review for substantial evidence
“necessarily calls for analysis of the unique facts and inferences present in each case, and
therefore comparisons between cases are of little value.” (People v. Rundle (2008) 43
Cal.4th 76, 137-138). In other words, the substantial evidence standard of review
requires that we look at the totality of circumstances in the case before us to determine
whether there is substantial evidence, and not merely make a side-by-side comparison
with other cases regarding evidence that supported or failed to support a finding of
substantial evidence in those other cases.
9
reasonably infer the requisite association from the very fact that defendant committed the
charged crimes in association with fellow gang members”].)
The specific intent prong — intent to promote, further, or assist gang member
criminal conduct — is also supported by substantial evidence. For this prong, we first
identify what criminal conduct was promoted, furthered, or assisted. Here, we need look
no further than the illegal possession of firearms.6 Defendant possessing a firearm in one
video clip in the presence of other Trigga Mob gang members, and taking possession of a
concealed firearm from a Trigga Mob gang member in another clip, establishes his intent
to promote, further, or assist gang members in carrying concealed firearms, possessing
loaded and unregistered firearms, and possessing firearms as felons. (§§ 25400, subd.
(a)(2), subd. (c)(1), (c)(6); 29800, subd. (a)(1).) Then after possessing the gun, defendant
rapped, referencing the gang and an ally gang, with Trigga Mob members behind him
flashing their gang’s signs and derogatory signs to rivals and brandishing guns. This
satisfied the specific intent prong. (See Morales, supra, 112 Cal.App.4th at pp. 1198-
1199 [defendants’ “intentional acts, when combined with [their] knowledge that those
acts would assist crimes by gang members, afforded sufficient evidence of the requisite
specific intent”].)
Additionally, a gang expert testified about past videos in which defendant
appeared with Trigga Mob gang members, spoke of Trigga Mob, and personally flashed
gang hand signs. In one video, defendant pledged his allegiance to his “organization,”
which an expert opined was a reference to Trigga Mob. The evidence of these prior
videos, which served to promote the gang, provided additional support that the charged
6 As our high court has noted: “[T]he scienter requirement in section 186.22(b)(1) —
i.e., ‘the specific intent to promote, further, or assist in any criminal conduct by gang
members’ — is unambiguous and applies to any criminal conduct, without a further
requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense
of conviction sought to be enhanced.” (Albillar, supra, 51 Cal.4th at p. 66.)
10
firearm possession was committed with the specific intent to promote criminal conduct
by the gang.
Defendant’s argument that he possessed the gun to promote himself as a rap artist
and not to promote the gang is unavailing.7 Self-promotion as a rap artist does not
preclude the jury from finding defendant also intended to promote, further, or assist
Trigga Mob. Nothing in the gang enhancement statute requires a defendant’s motive to
be strictly gang-related. Indeed, a gang member may harbor multiple motives —
personal and gang-related — when committing crimes. 8 The fact that a gang member
may have personal motives in addition to a gang-related motive does not negate the
requisite specific intent.
Moreover, defendant’s argument ignores our standard of review. We review for
substantial evidence, looking at the evidence in a light most favorable for the judgment.
(Albillar, supra, 51 Cal.4th at p. 60.) When the circumstances reasonably justify the
jury’s findings, reversal “is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (Ibid.) And this case is certainly not
one where “upon no hypothesis whatever is there sufficient substantial evidence to
support the jury’s verdict.” (Penunuri, supra, 5 Cal.5th at p. 142.)
Finally, arguing that the rap lyrics cannot be used as evidence because they
purportedly have little probative value, defendant relies on In re George T. (2004) 33
7 As we have noted, all the guns seized by the gang suppression officers were loaded.
Given the fact that they were loaded, the argument that they were just “props” for the
video hardly seems credible.
8 Albillar, supra, 51 Cal.4th 47, is a good example, where the defendants had dual
motives. In that case, three gang members raped a teenage girl. (Id. at pp. 51-53.) It is
apparent that they had at least two motives – personal sexual gratification and to benefit
the gang.
11
Cal.4th 620 (George T.).9 In George T., the minor was found to have made criminal
threats based on a poem he wrote. (Id. at pp. 624, 629.) On appeal, our high court found
the lyrics ambiguous and not amounting to a criminal threat. (Id. at p. 636.) Here,
defendant argues that, like the poem, his rap lyrics cannot be used as evidence absent
some meaningful way to determine that they are true. We are unpersuaded.
The crime of criminal threats in George T. arose from a poem, while here the
criminal conduct was possessing guns. The rap lyrics were circumstantial evidence of the
crime’s connection to the gang and defendant’s specific intent while possessing the gun.
And the videos themselves were visual evidence of defendant’s gun possession and the
gang engaging in one of its primary activities — illegal possession of firearms. And as
for defendant’s argument related to the absence of evidence that the lyrics were true, we
note that courts have relied on rap lyrics as circumstantial evidence of intent. (See e.g.
People v. Zepeda (2008) 167 Cal.App.4th 25, 35 [rap song recordings were probative of
defendant’s loyalty to a criminal gang, the gang’s motive and intent to kill rivals as well
as defendant’s motive and intent]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1373
[handwritten rap lyrics properly admitted because they showed defendant’s familiarity
with gang culture, loyalty to the gang, motive and intent].)10 Moreover, a rap lyric that
9 Defendant does not challenge the admissibility of the videos on appeal, probably
because no such objection was made in the trial court. We understand his argument on
appeal to be that we should not give this evidence any weight in the substantial evidence
analysis.
10The instant case is distinguishable from People v. Coneal (2019) 41 Cal.App.5th 951,
where similar arguments were made in connection with an evidentiary challenge, but
which is conspicuously absent from defendant’s briefing. In Coneal, the defendant was
charged with murder. (Id. at p. 953.) The prosecution played rap videos made before the
murder depicting defendant’s gang and a rival gang bragging about violence they had
committed or intended to commit. (Id. at p. 954.) The court, for multiple reasons,
concluded the videos should not have been admitted. For one, citing George T., supra,
33 Cal.4th at pp. 636-637, the Coneal court stated: “Absent some meaningful method to
12
insults a rival gang or brags about violent crimes need not be literally true in order for the
gang to reap benefits such as instilling fear in the community and rival gangs or
otherwise disrespecting rival gangs.
In sum, substantial evidence supports both prongs of the gang enhancement.
II. The One-Year Prior Prison Term Enhancement
Defendant contends the one-year prior prison term enhancement (§ 667.4, subd.
(b)) must be stricken in light of Senate Bill No. 136. The People concede the issue, and
we agree.
Senate Bill No. 136 became effective on January 1, 2020, and amends section
667.5(b) to authorize a one-year prior prison term enhancement only if a defendant
served a prior prison term for a sexually violent offense. It applies retroactively to
defendants whose judgments are not yet final. (People v. Gastelum (2020) 45
Cal.App.5th 757, 761, 772; People v. Winn (2020) 44 Cal.App.5th 859, 872-873; People
v. Lopez (2019) 42 Cal.App.5th 337, 341.)
Here, defendant’s prior prison term for a previous firearm possession, did not arise
from a sexually violent offense. We will therefore modify the judgment to strike the
enhancement.
determine which lyrics represent real versus made up events, or some persuasive basis to
construe specific lyrics literally, the probative value of lyrics as evidence of their literal
truth is minimal.” (Coneal, at p. 968.) But the Coneal court was careful to note: “We do
not mean to suggest that lyrics are never probative of their literal truth. For example,
where lyrics are written within a reasonable period of time before or after the charged
crime and bear a sufficient level of similarity to the charged crime, their probative value
as a statement of fact is increased.” (Id. at p. 969, italics added.) Thus, contrary to
defendant’s argument here, we conclude where the evidence establishes a connection to
reasonably contemporaneous past events, rap videos discussing those events have
probative value and accordingly, can be weighed into a substantial evidence analysis.
Here, the lyrics regarding the assault on a rival where he was stripped naked provided
evidence of recent conduct for which Trigga Mob was taking credit in disrespecting a
rival gang.
13
III. The Five-Year Serious Felony Enhancement
Defendant contends remand is required because the trial court was unaware of its
discretion to strike the section 667, subdivision (a) five-year prior serious felony
enhancement following Senate Bill No. 1393’s enactment. In support, he points to the
trial court’s statement during sentencing, “I have to add another five consecutive for the
667(a) so-called five-year nickel prior.” (Italics added.)
The People respond that remand is unwarranted because the trial court understood
its discretion and in fact denied defendant’s Romero11 request to strike the prior serious
felony enhancement alleged as a strike conviction. We agree with defendant.
A. Additional Background
Defendant was sentenced one month after Senate Bill No. 1393 took effect,
affording trial courts discretion to strike prior serious felony enhancements imposed
under section 667, subdivision (a).
Prior to sentencing, defendant asked the trial court to strike his prior strike
conviction and his prior prison term enhancement. As part of the request, defense
counsel wrote, “adding an additional five years and doubling the base term would be
unusually harsh.” Defendant did not expressly ask the court to strike or dismiss the
separate section 667, subdivision (a) enhancement, either in writing or orally at
sentencing.
Denying defendant’s request, the trial court stated: “having looked at all of the
facts that I’m required to look at in terms of sentencing factors, the objectives of the three
strikes law and the defendant, I conclude that at this point that you cannot make a
credible case that the defendant would be deemed outside the spirit of the three strikes
law and the scheme; and therefore, I’m going to deny the motion to strike the strike and
11 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
14
also to strike the — either to the strike itself or the punishment for any of these
enhancements.” (Italics added.)
Later, when summarizing the aggregate sentence, after stating the sentences for
the firearm possession count, the gang enhancement and the prior prison term, the court
stated: “And then I have to add another five consecutive for the 667(a) so-called five-
year nickel prior, that will be consecutive. Total aggregate time, 13 years state prison.”
(Italics added.)
B. Analysis
A criminal defendant is entitled to “ ‘sentencing decisions made in the exercise of
the “informed discretion” of the sentencing court,’ and a court that is unaware of its
discretionary authority cannot exercise its informed discretion.” (People v. Brown (2007)
147 Cal.App.4th 1213, 1228.) Where the record shows the trial court proceeded with
sentencing on the assumption it lacked discretion, remand is necessary to afford the trial
court an opportunity to exercise its sentencing discretion at a new sentencing hearing.
(Ibid.)
On this record, we are not sure the court was aware of its newly authorized
discretion to strike the prior serious felony enhancement. The statement, “And then I
have to add another five consecutive” indicates the court may have been operating under
the pre-Senate Bill No. 1393 rule, wherein the section 667, subdivision (a) enhancement
sentence was mandatory. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972).
Nothing stated as part of the Romero request convinces us otherwise. Indeed, it appears
the trial court’s singular focus in ruling on the Romero motion was whether defendant
should be “deemed outside the spirit of the three strikes law.”
Accordingly, we will remand to allow the trial court to consider exercising
discretion to strike or dismiss the section 667, subdivision (a) enhancement “in
furtherance of justice” under section 1385, subdivision (a).
15
DISPOSITION
We modify the judgment to strike the section 667.5, subdivision (b) prior prison
term enhancement. We remand to allow the trial court to consider exercising its
discretion to dismiss or strike the section 667, subdivision (a) prior serious felony
enhancement in furtherance of justice under section 1385, subdivision (a). The trial court
is directed to prepare an amended abstract of judgment and to send a certified copy to the
Department of Corrections and Rehabilitation. In all other respects we affirm.
/s/
MURRAY, J.
I concur:
/s/
ROBIE, Acting P. J.
16
DUARTE, J., Concurring.
I agree with the majority’s ultimate conclusion, reached in part I of its Discussion,
that the true finding on the gang enhancement at issue in this case was supported by
sufficient evidence. I write separately to make clear that my agreement is specific to the
particular facts of this case and the current state of the applicable law. (See 1988 STEP
Act, Pen. Code, § 186.20 et seq., added by Stats. 1988, ch. 1242, § 1, eff. Sept. 23, 1988;
Assembly Bill No. 333 (2021-2022 Reg. Sess.) Stats. 2021, ch. 699, known as the STEP
Forward Act of 2021, which amended § 186.22 and added § 1109 to the Pen. Code, eff.
Jan. 1, 2022.)
On that narrow basis, I agree with the majority’s conclusion that the true finding
on the gang enhancement was supported by sufficient evidence, as well as the majority’s
ultimate conclusions that modification and remand for exercise of sentencing discretion
are appropriate.
/s/
DUARTE, J.
1