THE PEOPLE, Plaintiff and Respondent, v. JESSIE FARIAS et al., Defendants and Appellants.
C094195 (Super. Ct. No. 18FE021180)
IN THE COURT OF APPEAL OF THE STATE OF
Filed 5/26/23
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes
SUMMARY OF THE APPEAL
This case is an example of why all parties to a legal proceeding should be reluctant to forego attending hearings at which the court is likely to announce a verdict. Here, defendant inmates, Jesse Farias and Fernando Miranda were found guilty of various charges stemming from their attack on a fellow inmate. Defendants, their counsel, and the People then agreed to allow the trial court to determine the truth of allegations that they had previously been convicted of crimes that constituted both serious felonies under
In a detailed minute order issued following the trial court‘s consideration of these recidivist offender allegations, the trial court expressly found the prior convictions were for serious felonies under
On appeal, both defendants take the position that the court could not impose a strike sentence here, because it made no strike finding. We agree that, as the record now stands, a strike sentence was not appropriate, and we vacate the sentence without prejudice as to the trial court‘s ability to correct the record if it can be clearly shown that the omission of strike findings was a clerical error and not a failure to make a finding and disposition on those allegations.
In addition to joining Farias‘s challenge to the strike sentence, Miranda also challenges the trial court‘s finding that two of his prior convictions were for serious felonies as contemplated by
FACTS AND HISTORY OF THE PROCEEDINGS
Because the guilt findings in this action are not in dispute, we provide only a brief summary of the incident that gave rise to this action and the findings regarding that specific incident. We provide greater detail on allegations and the trial court‘s findings regarding prior convictions, which play a central role in defendants’ appeals.
2018 Incident Giving Rise to this Action
On May 7, 2018, a correctional officer working on the C Yard of the California State Prison, Sacramento witnessed inmates Farias and Miranda attack, beat, and stab a third inmate, J.G. The officer made a call on her radio for help and an announcement to “put the yard down.”
Correctional officers formed a scrimmage line and ran towards the fight, and deployed pepper spray grenades. Miranda and Farias stopped their attack and were detained. Farias had blood on his clothing, but Miranda and Farias both appeared uninjured. One inmate-manufactured weapon was located on the grass near where officers detained Miranda. Another was located closer to where officers detained Farias.
J.G. was transported to a hospital. He suffered multiple serious injuries that required extensive treatment, including surgery.
Counts Charged, Enhancements, and Jury Findings Based on the 2018 Incident
In an Amended Information filed on April 23, 2021, which was further amended on May 4, 2021, the People alleged four counts. Counts one and four were alleged against both defendants. Count one alleged both defendants, with malice aforethought, attempted to murder J.G., in violation of
Count two made allegations regarding Farias only. It alleged that Farias, with malice aforethought, assaulted J.G. with a deadly weapon and by means of force likely to cause great bodily injury while serving a life sentence in a California prison, in violation of
Count three made allegations regarding Miranda only. It alleged that Miranda, while incarcerated, assaulted J.G. with a deadly weapon, an inmate manufactured stabbing instrument, in violation of
A jury found the defendants guilty on all counts, and found all of the alleged enhancements appended to the counts to be true, with the exception of the
Alleged Prior Convictions
The information alleged Farias had two prior convictions. First, the information alleged that on March 4, 1996, Farias was convicted of murder in the first degree in violation of
The information also alleged Miranda had three prior convictions. First, the information alleged that on September 15, 2014, Miranda was convicted of voluntary manslaughter in violation of
The information alleged all the defendants’ prior alleged convictions were (1) for serious felonies within the meaning of
Defendants Waived the Right to be Present at a Bench Trial on the Priors
In court, while the jury was deliberating the current charges, Farias and Miranda both waived jury trials on the prior convictions, their counsel concurred, and the People joined.
After the jury verdicts were read, the judge stated it would reconvene the next morning for the trial on the prior offenses.
The Assistant District Attorney stated that she and counsel for Farias had a preliminary hearing scheduled in another matter at the same time the judge intended to hold the trial on the priors. The court told the parties a trial takes precedence and to let the judge in the other department know, and then asked how much testimony the parties anticipated. The People stated they were willing to submit on the documents; so the court proposed meeting at 8:45 a.m., 15 minutes earlier than it had originally proposed meeting. However, counsel for Miranda said he had to be in court in Yolo County at some point the next day, and the court said it would move the hearing to 8:30 a.m.
The court then asked if defense counsel had seen the evidence the People had submitted regarding the priors. Farias‘s counsel said he had not, and proposed they conduct the trial on the priors and sentencing at the same time, be that the next day or at some later time. But, the court stated it planned to send the matter to Probation prior to sentencing, and it would want Probation to have the verdict on the priors.
The court continued, “[s]o if you just want to submit on the documents, we can do that and then I will render a ruling tomorrow and notify counsel. But I wanted to give you an opportunity to argue on the record. But if you don‘t plan to do that, you can submit on the documents.” Farias‘s counsel responded, “I am just prepared to object to the documents as hearsay and submit on that.” Miranda‘s counsel said, “I will do the same.”
The court then allowed the People to argue why the documents were not hearsay. The People argued the documents were certified official records from the California Department of Corrections and Rehabilitation. The court stated, “presuming that counsel is correct and they are certified and have the appropriate stamps, then I will overrule the objection.” The court continued, “I will take a
Before concluding the day‘s hearing, the court addressed the defendants regarding the proposal to hold a trial on the priors without them present, instructing them “your counsel have indicated that they don‘t need to be here, I can review the records, they‘ve already objected to the records and I‘ve overruled the objections. [¶] But you have the right to be here at the reading of the verdict. I‘m going to review these documents and determine whether or not you‘re guilty of the priors, and when I do that, if you want to waive your appearance, you are welcome to do that. Your attorneys have agreed to waive their appearance, but that‘s a personal right of yours and so you don‘t have to agree to that. You‘re certainly welcome to, but I don‘t want to have your counsel invoke a constitutional right on your behalf without talking to you first.” The court then asked, “[d]o you waive your appearance tomorrow for the verdict?” They both responded, “[y]es.” Farias added, “[t]his is very boring. I am done.” The court replied, “I understand. [¶] Thank you, gentlemen. Good luck.” Proceedings then concluded for the day.
Bench Trial Regarding the Priors
The court held a bench trial regarding the priors on May 6, 2021. There is no transcript of oral proceedings of the court reading its verdict on the priors. The clerk entered a minute order memorializing the trial and findings. The minutes identify the exhibits that were entered. We will provide more detail below regarding some of those exhibits, when we consider Miranda‘s separate arguments regarding the findings that his prior convictions were serious felonies under
According to the minute order, following the trial on the priors the court found true that Farias had two prior convictions as follows:
“PRIOR CONVICTION #1 - On March 4, 1996, Superior Court of California, County of Tulare, conviction of the crime of murder in the first degree in violation of Section 187 of the Penal Code, a serious felony, within the meaning of Section 667(a) of the Penal Code - FOUND TRUE.
“PRIOR CONVICTION #2 - On March 4, 1996, Superior Court of California, County of Tulare, conviction of the crime of attempted murder in violation of Section 664/187 of the Penal Code, a serious felony, within the meaning of Section 667(a) of the Penal Code - FOUND TRUE.”
The court found true that Miranda had three prior convictions as follows:
“PRIOR CONVICTION #1 - On September 15, 2014, Superior Court of California, County of Monterey, conviction of the crime of voluntary manslaughter in violation of Section 192(a) of the Penal Code, a serious felony, within the meaning of Section 667(a) of the Penal Code - FOUND TRUE. “PRIOR CONVICTION #2 - On September 15, 2014, Superior Court of California, County of Monterey, conviction of the crime of assault with a deadly weapon and infliction of great bodily injury in violation of Section[s] 245(a)(1) and 12022.7 of the Penal Code, a serious felony, within the meaning of Section 667(a) of the Penal Code - FOUND TRUE.
“PRIOR CONVICTION #3 - On August 11, 2009, Superior Court of California, County of Monterey, conviction of the crime of in furtherance of criminal street gang in violation of Section 186.22 of the Penal Code, a serious felony, within the meaning of Section 667(a) of the Penal Code - FOUND TRUE.”
A shorter minute order, contained on a document that listed multiple minute orders in Farias‘s case said (in all caps), “court finds prior convictions 1 and 2 to be true.” A minute order contained on a similar list in Miranda‘s case said (in all caps), “court finds prior convictions 1, 2, and 3 to be true.”
Sentencing
Both defendants were present with counsel at the sentencing hearing on June 3, 2021.
At the hearing, the trial court gave a recitation of the jury‘s findings on the current charges, as well as its findings on the priors. Regarding Farias‘s priors, the court said, “[h]is priors include the [March 4, 1996], Tulare County [section] 187 and the [March 4, 1996] Tulare County, attempt[ed] section 187.”
Regarding Miranda‘s priors, the court said, “priors of [September 15, 2014,] in Monterey County, [section] 192[, subdivision ](a), that‘s found true; second prior of a [section] 245[, subdivision] (a)(1) with a felony [section] 12022.7, both serious felonies, were found to be true as well as the Monterey County [August 11, 2009,] for [section] 186.22. All three are serious felonies.”
When the court asked counsel if its description of the findings were correct, Farias‘s counsel responded, “[y]es, as to Court findings, jury findings, et cetera, yes.” Miranda‘s counsel responded, “[w]ith respect to the analysis of when the verdicts were done and rendered, I believe so.”
On count one, the court said it intended to impose a sentence of 27 years to life. It selected the upper term and tripled it pursuant to
As to Farias‘s priors, the court noted both convictions were from the same March 4, 1996, trial. So, it would triple the sentence, and provide the basis for one five-year prior. This would bring Farias‘s total sentence to 27 years to life with an additional nine-year determinate term.
As to Miranda‘s priors, the court noted a five-year enhancement for the
Miranda‘s counsel said he was objecting to the three-strikes sentence for Miranda. He stated he believed, “findings by both the jury and the Court . . . don‘t lend credence to a three strike sentence and I‘ll leave it at that.” Farias‘s counsel reiterated that he had objected to documentation submitted regarding prior convictions and stated, “I think based on the Court‘s findings also a three strike sentence is not appropriate, and I‘ll submit on that.”
After the People noted that defendants had not filed Romero motions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and that it had explained in its sentencing brief why the defendants fell within the three strikes law, the court said, “the Court does believe that it has the power and the authority to strike the priors, but this case is not one in which the Court would seriously entertain that. A Romero motion is not before the Court, but if it were, the Court would deny it based on the information on the record, the testimony that the Court heard, and the fact that three strikes would be an entirely appropriate statute that would apply to these two defendants based on their level of violence and their prior history.” The court stayed counts two, three, and four, and followed the intended disposition it read earlier in the hearing.
Both parties filed notices of appeal the day they were sentenced.
The abstract of judgment for Farias indicates he was found guilty on counts one, two, and four; that enhancements were found and tied to count one under
The abstract of judgment for Miranda indicates he was found guilty on counts one, three, and four; that enhancements were found and tied to count one under
DISCUSSION
I
Strike Findings
Farias and Miranda both argue that the trial court could not sentence them under the three strikes law because the trial court never actually found that their prior offenses were strikes. They both argue that this matter should be remanded for resentencing without the imposition of a term under the three strikes law. The People take the position that the trial court made proper strike findings and appropriately sentenced the defendants under the three strikes law. The People also argue that Farias failed to raise an appropriate objection to the court‘s findings in the trial court, and, therefore, failed to preserve this argument for appellate review. The People also argue any error was harmless. Finally, the People argue that if this court does find the trial court failed to make a finding on the prior strike allegations, the matter should be remanded for the superior court to clarify its findings. Defendants are correct that on this record the sentence is unauthorized. However, we make this finding without prejudice as to the trial court‘s ability to correct the judgment if the omission is shown to be purely a clerical error.
A. The Three Strikes Law
The California three strikes law is contained in
With certain exceptions, a prosecutor must, “plead and prove each prior serious or violent felony conviction.” (
B. Consideration of Priors and Impact of Findings
Here, though it was clear that both parties and their counsel opted to forego attendance at a hearing during which the court considered evidence of the defendants’ priors and made findings as to the truth of the related enhancement allegations, it was not clear to this court whether the trial court ever made an oral pronouncement of its findings. We asked both parties to brief the impact of a lack of a reporter‘s transcript or settled statement in this appeal, and both defendants and the People took the position that record before us provides sufficient information for our review. The People, in fact, take the position that there were no oral proceedings to record. As such, we will treat the record as containing a complete representation of all findings the trial court articulated on the record with respect to the strike allegations.
“When a jury trial is waived, the judge or justice before whom the trial is had shall, at the conclusion thereof, announce his findings upon the
Here, the minute order upon which the court entered its findings on the recidivist enhancement allegations is silent as to the existence of prior strike convictions. The minute order explicitly identifies
The People make a variety of unpersuasive arguments to try to avoid the impact of the trial court‘s silence as to the strike allegations. First, the People point to the finding in the shorter, less detailed minute orders, which simply state, “COURT FINDS PRIOR CONVICTIONS . . . TO BE TRUE.” Yet, considering the more detailed findings of the longer minute order, the lack of
Next, the People suggest a finding of truth under
Finally, the People argue this argument was not preserved for review, and that any error was harmless. But, “[t]he error involved in an unauthorized sentence is not subject to forfeiture, and can never be harmless.” (People v. Cabrera (2018) 21 Cal.App.5th 470, 477.) Additionally, at the sentencing hearing, counsel for both defendants stated they felt the trial court‘s findings on the Three Strikes allegations did not support a punishment under the Three Strikes law, preserving the matter for further review.
C. Treatment on Remand
Based on the current record, it appears the trial court reached no conclusions as to whether the prior convictions were strikes when it acted as a trier of fact regarding those convictions, and we treat that silence as a
However, “a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties.” (Candelario, supra, 3 Cal.3d at p. 705; accord People v. Kim (2012) 212 Cal.App.4th 117, 124.) “Clerical error . . . is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ (46 Am.Jur.2d, Judgments, § 202.) Any attempt by a court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted. (In re Wimbs (1966) 65 Cal.2d 490, 498 [].)” (Candelario, supra, 3 Cal.3d at p. 705.) “An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion.” (Ibid., italics added.)
Given the same judge that considered the prior strike allegations sentenced the parties as if it had found the allegations true and, at sentencing, stated, “three strikes would be an entirely appropriate statute that would apply to these two defendants based on their level of violence and their prior history,” it seems highly unlikely the trial court intended to show lenience through silence in this matter. Given this, it is possible that the judge has notes or other evidence from when it reviewed the prior convictions that might reflect it did, in fact, make an explicit finding on the priors, but those findings did not make it into the detailed minute order due to a clerical error. E.g., it is possible in cutting and pasting text or preparing a document based on the
II
Prior Serious Felony Findings Under Section 664, Subdivision (a)
On appeal, Miranda challenges the trial court‘s prior serious felony findings as to his 2014
A. Additional Background
The following documents, in chronological order, were entered as evidence regarding Miranda‘s three prior alleged convictions:
A complaint filed on July 6, 2009, in the Superior Court of California, County of Monterey, case No. SS0916684A (the 2009 Action). The complaint accusing Miranda of the commission of various offenses, including, in the first count, carrying a loaded firearm on one‘s person as contemplated by
Minutes from the August 11, 2009, preliminary hearing in the 2009 Action. According to the minutes, the complaint in the action was orally amended at that time to add a fourth count for felony violation of
A waiver of rights and plea of guilty/no contest signed by Miranda on August 11, 2009, in the 2009 Action. According to the form, Miranda was pleading nolo contendere to offenses under
Minutes from a “Supplemental Report” hearing in the 2009 Action on January 11, 2011. According to the minutes, Miranda‘s probation was being revoked and the court sentenced him to a term of 16 months on both the first and fourth counts, to be served concurrently.
An abstract of judgment filed on January 13, 2011, in the 2009 Action. According to the abstract, on August 11, 2009, Miranda was convicted of possessing a loaded firearm under
An FBI fingerprinting form for fingerprints taken on January 20, 2011. The form bears a notation that Miranda had been cited for violating both
An amended information filed on January 4, 2012, in case No. SS110928B (the 2011 Action). The information charges Miranda and a codefendant with the premeditated murder of an unnamed “Victim 1” on May 7, 2011. It contains an enhancement allegation to the murder allegation that Miranda committed the alleged murder for the benefit of, at the direction of, or in association with a criminal street gang, for the purpose of promoting, furthering, or assisting in the criminal conduct of gang members in violation of
Minutes from a September 15, 2014, hearing that appears to have occurred on the fifth day of a jury trial in the 2011 Action. According to the minutes, on September 15, 2014, the trial court amended the information in the action upon the motion of the district attorney. The information was amended to add an allegation that Miranda had committed voluntary manslaughter as contemplated by
The plea agreement signed by Miranda in the 2011 Action which was filed on September 15, 2014. Miranda pled guilty to
Minutes from the October 17, 2014, sentencing hearing in the 2011 Action. The court imposed a term of 11 years for the
An abstract of judgment filed on October 21, 2014, in both the 2011 Action and 2014 Action. The abstract noted Miranda had been convicted of voluntary manslaughter and would serve 22 years for that crime, with a 10-year enchantment under
A fingerprinting card for prints taken on October 28, 2014. The card identifies the convictions and enhancements in the 2011 Action as
A document dated June 15, 2020, that records Miranda‘s movements between, entry into, and parole from detention facilities.
The documents considered do not include a charging document, plea agreement, or minutes from a hearing at which the plea was entered in the 2014 Action, which was the action in which the
Miranda presented no evidence concerning the nature of his prior convictions.
B. Standard of Review
“The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. (People v. Tenner[, supra,] 6 Cal.4th [at p.] 566 [].)” (People v. Miles (2008) 43 Cal.4th 1074, 1082.) In identifying the facts proven by the existence of a prior conviction, “[t]he trial court‘s role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in ‘judicial factfinding that goes far beyond the recognition of a prior conviction.’ ” (People v. Gallardo (2017) 4 Cal.5th 120, 134.) “On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.” (Miles, at p. 1083.)
Under
D. Prior Conviction Under Section 245, Subdivision (a) , and 12022.7
Miranda argues there is insufficient evidence to support the trial court‘s true finding that, “[o]n September 15, 2014, Superior Court of California, County of Monterey, conviction of the crime of assault with a deadly weapon and infliction of great bodily injury in violation of Section[s]
Miranda argues substantial evidence does not support a finding he was convicted of a prior serious felony under
Citing People v. Barro (2001) 93 Cal.App.4th 62, 67 (Barro), Miranda argues that we cannot tell from this record why the
We find Barro inapplicable here. In Barro a defendant challenged a finding that his prior conviction for mayhem qualified as a strike on the grounds that the prior conviction had been dismissed under
Miranda would have us believe that because the abstract of judgment from the 2014 Action does not state the sentence was stricken under anything other
E. 2009 Conviction Under Section 186.22, Subdivision (a)
Miranda concedes that, taken together, the July 6, 2009, complaint; the August 11, 2009, waiver of rights and plea of guilty/no contest signed by Miranda; the August 11, 2009, minute order; the January 11, 2011, minute order; and the January 13, 2011, abstract of judgment provide sufficient proof that he was convicted by a plea of nolo contendere of violating
1. Section 186.22, Subdivision (a)
In 2009,
We note that the version of
In any event, between 2009 and the present time, while substantive changes to the greater statutory scheme punishing criminal street gang activity have occurred—we discuss some of those below—the language in
Under
2. Impact of People v. Rodriguez (2012) 55 Cal.4th 1125
Miranda‘s first argument regarding the 2009 conviction for street terrorism under
Miranda argues that due to this post-2009 change in the understanding of
To support his argument Miranda cites to People v. Strike (2020) 45 Cal.App.5th 143 (Strike), review denied June 10, 2020. We agree that Strike is instructive on this issue. In Strike, supra, 45 Cal.App.5th at pages 145-146, following a jury trial in which Christopher Strike was found guilty of various crimes, in a bifurcated proceeding, the trial court found Strike had a prior conviction in 2007 for gang participation under
The court stated that while the statutory text of
We note that Strike was concerned with the application of Rodriguez when the prior
The Attorney General unpersuasively tries to convince us to not apply Strike to require a remand in this case.
First, the Attorney General invites us to conclude that Strike was incorrectly decided, arguing any violation of
To begin with, we disagree with the Attorney General‘s decision that Strike was wrongly decided and observe there has yet to be a published decision challenging it or questioning its reasoning.
Next, we note that in advancing his argument on appeal, Miranda is not challenging the validity of his prior conviction at the time he was convicted. Instead, he is questioning whether it has been shown to qualify as a serious felony under
Next, the Attorney General argues that even applying Strike there was sufficient evidence in documents considered by the trial court to support a finding that the 2009 conviction under
This reads too much into the documents. A closer look at the minutes recording the circumstances under which the 2014 plea was entered reflect no admission that Miranda admitted to committing a
Moreover, the Attorney General‘s arguments regarding the value of the 2014 plea in the 2011 Action are functionally a request for us to find that Miranda‘s plea in 2014 should estop him from asserting that the 2009 conviction does not qualify as a prior serious offense here. But
3. Impact of Assembly Bill No. 333
As contemplated by
We note that the amended definition also contains added language that specifies that an offense used to establish the “pattern of criminal gang activity” must have “commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational.” (Compare
Prior to Assembly Bill 333‘s enactment, charged offenses could be counted as the predicate offenses. (See People v. Loeun (1997) 17 Cal.4th 1, 10 [finding in 1997 that “when the prosecution chooses to establish the requisite ‘pattern’ by evidence of ‘two or more’ predicate offenses committed on a single occasion by ‘two or more persons,’ it can, as here, rely on evidence of the defendant‘s commission of the charged offense“].)
The Legislature made various findings regarding problems with how the prior version of the gang enhancement statutes had been applied when it enacted Assembly Bill 333. (Stats. 2021, ch. 699, § 2.) These findings included that the gang enhancement statute had been found to be “applied inconsistently against people of color, creating a racial disparity“; that though the enhancements had been enacted as part of a scheme that was meant “to target crimes committed by violent, organized criminal street gangs” through amendments and court rulings, the statutes had been expanded such that gang enhancements had become ubiquitous; and that “[g]ang enhancements and
Miranda argues that under principles articulated in In re Estrada (1965) 63 Cal.2d 740, he is entitled to have the question of whether his prior conviction under
We agree that the amended version of
Absent evidence of contrary legislative intent, if an “amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies.” (In re Estrada, supra, 63 Cal.2d at p. 744; see also People v. Mani (2022) 74 Cal.App.5th 343, 379.) “This rule rests on an inference that when the Legislature has reduced the punishment for an offense, it has determined the ‘former penalty was too severe’ (Estrada, at p. 745) and therefore ‘must have intended that the new statute imposing the new lighter penalty . . . should apply to every case to which it constitutionally could apply’ (ibid.).” (People v. DeHoyos (2018) 4 Cal.5th 594, 600.) A judgment is not considered final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 305-306.)
Our Supreme court has applied the Estrada reasoning, “to statutes which redefine, to the benefit of defendants, conduct subject to criminal sanctions.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 301.) Additionally, “a defendant is entitled to the benefit of an amendment to an enhancement statute, adding a new element to the enhancement, where the statutory change becomes effective while the case was on appeal, and the Legislature did not
Here,
Because the revised definition of “pattern of criminal gang activity” was not in effect until 2022, the trial court entered its findings in 2021, and we are already remanding this action for reconsideration of the third prior serious felony enhancement based on the 2009
The People‘s efforts to convince us that defendant should not be able to argue the amended version of
First, the People point to
4. Treatment on Remand
“[R]eversal of a true finding on a prior conviction allegation does not prevent retrial of that enhancement. (People v. Barragan (2004) 32 Cal.4th 236, 241 [].) As explained in Gallardo, the appropriate remedy is to remand the case to the trial court for a new hearing. . . . (Gallardo, supra, 4 Cal.5th at p. 139.)” (Strike, supra, 45 Cal.App.5th at p. 154section 186.22, subdivision (a), conviction satisfied all the required elements to qualify as a prior serious felony as contemplated under section 667, subdivision (a).
5. Section 186.22 as a Strike
Above, we found that the record does not contain a truth finding on the strike allegations and that the strike sentences must therefore be vacated. However, we noted this finding was without prejudice as to the trial court‘s ability to correct the record of its findings if it is clearly shown the omission was only a clerical error. If the trial court were to revise its records to reflect an affirmative finding of truth as to the strike on priors, we observe that the above reasoning as to why substantial evidence does not support a finding that the prior
III
The Trial Court Can Exercise its Section 654 Discretion on Remand
At the time the trial court sentenced the defendants,
Miranda and Farias both argue that the amended version of
“Because Assembly Bill 518 was enacted while defendant‘s appeal was not yet final and it provides the trial court new discretion to impose a lower sentence, defendant is entitled to its ameliorative benefit.” (People v. Mani (2022) 74 Cal.App.5th 343, 379People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 court to exercise its discretion under section 654, because we are already remanding for the consideration of other factors related to the sentence. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ [Citations.]“].)
DISPOSITION
We do not foreclose the possibility that the absence of strike findings on the minute order and abstract of judgment is the result of a clerical error, and, if it can be clearly shown that the omission of those findings is result of a clerical error, the trial court may correct its judgment nunc pro tunc to more clearly state its strike findings.
As to Farias, if it cannot be clearly shown that the mistake was clerical in nature, the trial court must vacate his sentence and resentence him without applying the Three Strikes law. If it can be clearly shown the error was clerical and the trial court makes appropriate clarifications to its judgment, it may continue to apply the three strikes law to Farias, treating each of his prior convictions as a strike. The trial court may also reconsider Farias‘s sentence under the current version of
As to defendant Miranda, the trial court must vacate its finding that the 2009
HULL, J.
We concur:
ROBIE, Acting P. J.
BOULWARE EURIE, J.