People v. Flores CA4/1

Filed 3/10/22 P. v. Flores CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079165

Plaintiff and Respondent,

v. (Super. Ct. Nos. SCD272842
& SCS290928)
MOISES FLORES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Robert F. O’Neill, Judge. Affirmed in part and remanded with directions.
Christine M. Aros, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
We have independently reviewed the record in this case consistent with
our obligations under People v. Wende (1979) 25 Cal.3d 436 (Wende) and
Anders v. California (1967) 386 U.S. 738 (Anders). We deem appellant’s
request for judicial notice filed December 14, 2021, to be a motion to augment
the record with documents properly before the trial court. Accordingly, we
grant the motion. (Cal. Rules of Court, rule 8.155(a).) We conclude there are
no arguable issues on appeal other than a correction of a clerical error on the
abstract of judgment. We, therefore, order the clerk of the superior court to
strike from the abstract of judgment the criminal justice administration fee
in the amount of $308 because it does not conform to the court’s
pronouncement of judgment. In all other respects, we affirm the judgment.

BACKGROUND1
A. Convictions and Sentencing
Moises Flores pleaded guilty in June 2017 to a charge of unlawful

possession of ammunition (Pen. Code,2 § 30305, subd. (a)(1)) in case number
SCS290928. He admitted he had a prior strike and served a prior prison
term. After indicating it would consider granting felony probation and
reducing the count to a misdemeanor, the court ordered Flores to return for
sentencing on July 24, 2017.
But roughly a week before his sentencing, Flores’s circumstances took a
decided turn for the worse. As we explained in our prior opinion, “In the
course of a chaotic fight in an apartment complex parking lot
between . . . Flores and two furniture delivery men, Flores used a baseball
bat and meat cleaver in what he claimed was self-defense, defense of others,
or defense of property. The jury [in case no. SCD272842] accepted Flores’s
claim to a point, acquitting him of robbery ([ ] § 211 [count 1]) and two counts
of assault with a deadly weapon (§ 245, subd. (a)(1) [counts 2 & 3]) in
connection with these events. But it did not accept that Flores acted in
lawful self-defense or defense of others when he ran into a stranger’s

1 We provide the following brief description of the facts and procedural
history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
2 Further undesignated statutory references are to the Penal Code.

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apartment, returned with a meat cleaver, and used it to strike one of the
delivery men in the leg. The jury convicted Flores of a single count of assault
with a deadly weapon (§ 245, subd. (a)(1) [count 4]), and he later admitted an
[out on bail] enhancement, a prison prior, and a strike prior. In a separate
proceeding, Flores pleaded guilty to an unrelated vandalism charge (§ 594,
subds. (a) & (b)(1) [count 5]). Denying his motion to strike his prior strike
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529−530, the
court sentenced Flores to a cumulative term of 10 years and four months in
state prison.” (People v. Flores (Apr. 17, 2020, D074964) [nonpub. opn.]
(Flores I).)
With respect to the unlawful possession of ammunition charge
(§ 30305, subd. (a)(1)) in case number SCS290928, the court imposed the
middle term of two years, doubled to four years for the strike, plus one year
for the prison prior. It ordered the term to run concurrently with the term
imposed for case number SCD272842.
B. Prior Appeal
In Flores’s prior appeal regarding case number SCD272842, we
concluded there was no error requiring reversal of his assault conviction and
no error in the court’s selection of a middle-term sentence for that count. We
also concluded that the trial court did not abuse its discretion in denying
Flores’s Romero motion. But in light of legislation passed after Flores was
sentenced, the People conceded the one-year enhancement for serving a prior
prison term no longer applied to Flores. We accordingly remanded the
matter for full resentencing, with directions to strike the one-year
enhancement under former section 667.5, subdivision (b). (Flores I, supra,
D074964.)

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C. Resentencing on Remand
The trial court struck the one-year prior prison term enhancement as
directed and conducted a full resentencing hearing. The court received
supplemental sentencing briefs from the parties. It also considered and
denied Flores’s renewed Romero motion to strike his prior strike. The court
then resentenced Flores in case number SCD272842 to a cumulative term of
nine years, four months based on the middle term of three years, doubled to
six years for count 4, plus one-third the middle term of eight months, doubled
to 16 months for count 5 and two years for the out-on-bail enhancement
(§ 12022.1).
The court next considered a letter it received from the California
Department of Corrections and Rehabilitation (CDCR) stating that the court
imposed an illegal sentence in case number SCS290928 by running the full
sentence for the unlawful possession of ammunition offense concurrent with
the sentence for the convictions in case number SCD272842. According to the
letter, the sentences should have been consecutive pursuant to section 667,
subdivision (c)(6) and the court should have imposed only one-third the
middle term for a consecutive sentence pursuant to section 1170.1,
subdivision (a). Flores asked the court to reduce the unlawful possession of
ammunition charge to a misdemeanor so that it could run concurrently with
the sentence in case number SCD272842 and he would not receive more time
than originally imposed. The court denied the request, noting Flores’s
criminal history and that his arrest for case number SCD272842 was only
weeks after entering the plea for unlawful possession of ammunition. It then
sentenced him in case number SCS290928 to eight months (one-third the
middle term of two years) doubled to 16 months, to run consecutive to case

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number SCD272842. The total prison term for both cases is 10 years, eight
months.
D. Current Appeal and Post-Appeal Corrections of Judgment
Flores appealed the judgments in both cases and requested a certificate
of probable cause. He contended the increase in his sentence was “judicial
vindictiveness,” he was denied effective assistance of counsel because he was
not informed about a plea offer, and the court failed to state new or
additional grounds for imposing the middle term rather than a low term. The
court granted the certificate of probable cause.
Thereafter, Flores’s appellate counsel sent letters to the trial court
requesting correction of clerical errors on the abstract of judgment regarding
assessments and credits. Counsel also asked that the criminal justice
administration fee imposed pursuant to Government Code section 29550.1 be
deleted from the amended abstract because authorization for those fees had
been repealed by the Legislature. (Assem. Bill No. 1869 (2019-2020 Reg.
Sess.), § 2 eff. Sept. 18, 2020, operative July 1, 2021.) Amended Government
Code section 6111, subdivision (a) made “the unpaid balance of any court-
imposed costs” pursuant to Government Code section 29550.1 “unenforceable
and uncollectible and any portion of a judgment imposing those costs shall be

vacated.”3

3 Government Code section 6111 provides: “On and after July 1, 2021,
the unpaid balance of any court-imposed costs pursuant to Section 27712,
subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and
29550.3, as those sections read on June 30, 2021, is unenforceable and
uncollectible and any portion of a judgment imposing those costs shall be
vacated.” Courts have held the balance of any costs imposed pursuant to
these sections that remains unpaid as of July 1, 2021, must be vacated
(People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953–954 (Lopez-Vinck);
People v. Greeley (2021) 70 Cal.App.5th 609, 626–627.)

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 In response, the court made several changes to the abstract of
judgment. It corrected the amounts of the court operations assessment and
the criminal conviction assessment and added custody credits to include the
actual days from the time of his arrest to the time of his resentencing and his

pre-sentence conduct credits, which accrued while he was in local custody.4
The court also stated the criminal justice administration fee in the amount of
$308 “is deleted.” That fee, however, remains on the amended abstract.
DISCUSSION
I.
Appellate counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436
indicating she identified no reasonably arguable issues for reversal on appeal.
She asked this court to review the record as mandated by Wende. Counsel
identified a number of issues she considered to assist the court in conducting
our independent review of the record. (Anders, supra, 386 U.S. at pp. 744,
745; In re Phoenix H. (2009) 47 Cal.4th 835, 843.)
We offered Flores the opportunity to file a supplemental brief on his
own behalf. He submitted a brief identifying nearly the same issues
identified by his attorney. He contends the trial court’s denial of his renewed
Romero motion and the request to reduce the unlawful possession of
ammunition charge to a misdemeanor was the “result of judicial
vindictiveness” and the decision was based on “impermissible factors.” He
also contends the prosecutor made improper arguments about his criminal

4 For case number SCD272842, there were 1,431 actual days plus 458
days for pre-sentence conduct credits for a total credit of 1,889 days. For case
SCS290928, because of consecutive sentencing, Flores had two actual days
plus two days pre-sentence conduct credits for a total of four days. (People v.
Johnson (2004) 32 Cal.4th 260, 263, 267–268.)

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history resulting in a denial of a fair hearing and due process. We briefly
address each identified issue.
1. Did the trial court abuse its discretion in denying appellant’s
renewed Romero motion?
At an initial hearing after remand, the court indicated it would strike
the strike to which Flores admitted in case number SCD272842. After
further discussion with counsel and Flores, however, the court found good
cause to grant a continuance of the sentencing hearing to allow additional
briefing by both parties.
At the continued hearing, the court considered Flores’s renewed motion
and commented that it was a “close call.” It noted, however, that Flores had
been released on bail for the unlawful possession of ammunition charge at
the time of the assault offense. The court quoted extensively from our prior
opinion in which we determined, based on Flores’s criminal history and poor
performance in past periods of supervision, that “the denial of his Romero
motion was neither irrational nor arbitrary.” The court again denied the
Romero motion for the reasons it previously indicated. The record
demonstrates the trial court did not abuse its discretion in denying the
renewed Romero motion to strike Flores’s prior strike. (People v. Carmony
(2004) 33 Cal.4th 367, 377–378.)
2. Did the trial court err in failing to state new or additional
grounds for imposing the middle term, rather than the low term?
Section 1170, subdivision (b) gives the court discretion to choose, under
certain circumstances, whether to impose the upper, middle or lower
determinate term based on its consideration of mitigating and aggravating
factors. (People v. Estrada (2020) 58 Cal.App.5th 839, 843.) It must state on
the record the reasons for its sentencing choice (§ 1170, subd. (c).) Flores’s

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counsel requested the low term of two years for assault with a deadly
weapon. (§ 245, subd. (a)(1).) The court selected the “presumptive mid[dle]
term of three years” stating it could find no factors in mitigation and there
were four factors in aggravation. The court referred to and incorporated the
probation report dated March 23, 2018, which cited the four aggravating
factors. All the factors that existed at the time of the original sentencing
hearing remained appropriate considerations at the time of resentencing.
3. Did the trial court abuse its discretion in denying appellant’s
request to reduce his conviction in case number SCD290928 to a
misdemeanor?
The court considered and rejected Flores’s request to reduce his
conviction in case number SCD290928 to a misdemeanor under section 17,
subdivision (b) considering his criminal history both before and after this plea

was taken. The court noted that the plea agreement included a Cruz5 waiver
in which Flores acknowledged that if he were arrested for or committed
another crime before sentencing, he would be sentenced unconditionally.
Nevertheless, he was arrested only shortly after this plea for the assault with
a deadly weapon and vandalism charges in case number SCD272842. The
court did not abuse its discretion. (People v. Tran (2015) 242 Cal.App.4th
877, 887–891.)

5 People v. Cruz (1988) 44 Cal.3d 1247; “A ‘Cruz waiver’ gives a trial
court the power to ‘withdraw its approval of the defendant’s plea and impose
a sentence in excess of the bargained-for term,’ if the defendant” breaches the
agreement’s conditions. (People v. Puente (2008) 165 Cal.App.4th 1143, 1146,
fn. 3.)

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 4. Was the increase in appellant’s sentence the result of judicial
vindictiveness?
Correcting the sentencing error identified in the CDCR letter had the
effect of increasing Flores’s prison sentence. It is well settled, however, that
an unauthorized sentence “is subject to correction . . . ‘whenever the error
comes to the attention of the court, even if the correction creates the
possibility of a more severe punishment.’ ” (People v. Vizcarra (2015) 236
Cal.App.4th 422, 432; People v. Serrato (1973) 9 Cal.3d 753, 764 [an
unauthorized sentence “is subject to being set aside judicially and is no bar to
the imposition of a proper judgment thereafter, even though it is more severe
than the original unauthorized pronouncement.”].) The fact that the
corrected sentence resulted in more prison time for Flores does not indicate
judicial vindictiveness, nor is there any other basis for reaching that
conclusion based on the record.
5. Was appellant denied effective assistance of trial counsel?
To establish ineffective assistance of counsel, a defendant has the
burden to show counsel’s performance fell below the standard of
reasonableness under prevailing professional norms and that the attorney’s
deficient performance was prejudicial in that he would have obtained a more
favorable result absent the alleged error. (Strickland v. Washington (1984)
466 U.S. 668, 687, 694.) When we review ineffective assistance of counsel
claims, our scrutiny of an attorney’s performance “ ‘must be highly
deferential’ ” and a defendant “must overcome the ‘presumption that, under
the circumstances, the challenged action “might be considered sound trial
strategy.” ’ ” (Bell v. Cone (2002) 535 U.S. 685, 698.) “ ‘[I]f the record on
appeal fails to show why counsel acted or failed to act in the instance
asserted to be ineffective, unless counsel was asked for an explanation and

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failed to provide one, or unless there simply could be no satisfactory
explanation, the claim must be rejected on appeal.’ ” (People v. Huggins
(2006) 38 Cal.4th 175, 206.) Flores did not pursue this argument in his
supplemental brief and we find no basis for reversal on this issue from our
independent review of the record.
6. Did the Prosecutor Commit Misconduct in His Resentencing
Arguments?
Flores contends the prosecutor’s arguments at the resentencing hearing
were improper because he stated that Flores had a history of domestic
violence and that his current offenses occurred while he was on some form of
supervision. Flores denies he has been convicted of domestic violence. He
also states he was not under any form of supervision at the time he was
arrested for the unlawful possession of ammunition charge, but admits he
was on bail when he was arrested for the charges in case number
SCD272842.
“ ‘A prosecutor’s conduct violates a defendant’s constitutional rights
when the behavior comprises a pattern of conduct so egregious that it infects
“ ‘the trial with unfairness as to make the resulting conviction a denial of due
process.’ [Citation.]” [Citation.] The focus of the inquiry is on the effect of
the prosecutor’s action on the defendant, not on the intent or bad faith of the
prosecutor. [Citation.] Conduct that does not render a trial fundamentally
unfair is error under state law only when it involves “ ‘ “the use of deceptive
or reprehensible methods to attempt to persuade either the court or the
jury.” ’ ” ’ [Citation.] ‘ “A defendant’s conviction will not be reversed for
prosecutorial misconduct, however, unless it is reasonably probable that a
result more favorable to the defendant would have been reached without the
misconduct.” ’ ” (People v. Young (2019) 7 Cal.5th 905, 932–933.)

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 Flores did not object to these statements and, therefore, forfeited the
issue for appeal. (People v. Tully (2012) 54 Cal.4th 952, 1014.) Even if he
had objected, we would not find grounds for reversible misconduct. The
original complaint in case number SCD272842 charged Flores with battery of
his spouse (§ 243, subd. (e)(1)) within the same range of dates as those for the
vandalism charge to which he pleaded guilty. Although the battery of a

spouse charge was dismissed, Flores agreed to a Harvey6 waiver as part of
his pleas in both cases. Therefore, it was not misconduct for the prosecutor to
refer to this conduct in his sentencing arguments. Additionally, even if
Flores was not under some form of supervision when he was arrested for the
unlawful possession of ammunition charge, it is not reasonably probable he
would have obtained a more favorable sentence absent this fleeting remark
given his criminal history and his admission he was on bail when he
committed the subsequent offenses. (People v. Crew (2003) 31 Cal.4th 822,
839.)
Our review of the record as mandated by Wende and Anders has
disclosed no reasonably arguable appellate issues for reversal of the
judgment. Competent counsel has represented Flores on this appeal.
II.
The trial court stated in its December 2, 2021 minute order that the
criminal justice administration fee in the amount of $308 fee was “deleted.”
We determined in Lopez-Vinck, supra, 68 Cal.App.5th at pages 953 to 954
that the unpaid balance of such fees should be vacated. We conclude the
court’s order deleting the criminal justice administration fee intended to

6 In People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey), the court held
conduct underlying dismissed charges cannot be considered at sentencing
absent a waiver.

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vacate any unpaid balance of the fee. The amended abstract of judgment,
however, still reflects the imposition of the fee. When the abstract of
judgment does not accurately reflect the judgment pronounced by the court,
we may correct the clerical error at any time. (People v. Mitchell (2001) 26
Cal.4th 181, 185; People v. Rowland (1988) 206 Cal.App.3d 119, 123.)
Because the abstract of judgment does not accurately reflect the judgment of
the court, we direct the clerk of the superior court to strike the $308 fee from
the amended abstract of judgment. (Ibid.)
DISPOSITION
The judgment is affirmed. However, the matter is remanded with
directions for the clerk of the superior court to strike the $308 criminal
justice administration fee from the amended abstract of judgment. A
certified copy of the corrected abstract of judgment shall be forwarded to the
Department of Corrections and Rehabilitation.

DATO, J.

WE CONCUR:

AARON, Acting P. J.

DO, J.

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