THE PEOPLE, Plаintiff and Respondent, v. FRANCISCO GONZALEZ, Defendant and Appellant.
F084952
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 1/23/24
CERTIFIED FOR PUBLICATION; (Super. Ct. No. BF185179A)
OPINION
William Safford, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Francisco Gonzalez was convicted on three counts of possession of a firearm by a person previously convicted of a felony (
The court sentenced defendant on count 3 to a six-year term, calculаted by doubling the upper term due to the strike; on each of counts 4 and 5 to consecutive 16-month terms, calculated by doubling one-third of the middle term due to the strike; on count 6 to an eight-year term, calculated by doubling the upper term due to the strike, and stayed pursuant to
On appeal, defendant contends the court‘s strike finding is not supported by substantial evidence that his prior conviction involved conduct prohibited by section 186.22, as amended by Assembly Bill No. 333 (2021-2022 Reg. Sess.), statutes 2021, chapter 699 (Assembly Bill No. 333). He further contends the imposition of upper-term sentences based on the specified factors in aggravation was unauthorized. We reject defendant‘s contentions and affirm.
FACTUAL BACKGROUND
As the facts underlying the offenses have minimal relevance to the issues on appeal, we summarize them only briefly. Law enforcement contacted
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTS THE PRIOR STRIKE FINDING
Defendant contends substantial evidence does not support the prior strike finding. More specifically, he contends the determination of whether his prior conviction constituted a strike must be made with reference to current law. He points out that section 186.22 was amended after his prior conviction, the amendments took effect before his current conviction became final, and the evidence presented in the trial court does not establish his prior conviction involved conduct prohibited under the amended law. Thus, he contends, the evidence does not support a finding that he committed a strike within the meaning of the Three Strikes law.
We conclude defendant‘s prior conviction constituted a strike on the date of that prior conviction and therefore remains one today.
A. Additional Background
The information alleged defendant suffered one prior strike based on a 2002 conviction for violation of former section 12021, subdivision (c)(1),3 with a gang enhancement pursuant to section 186.22, former subdivision (b)(1).
The court conducted a bifurcated court trial on the prior strike allegation and received into evidence a “certified RAP sheet” and a “certified 969b packet” reflecting the conviction. Based on that evidence, the court found defendant was convicted of a violation of former section 12021, subdivision (c)(1) with an enhancement pursuant to section 186.22, subdivision (b)(1), and that the offense “does in fact qualify as what‘s commonly referred to as a strike prior.”
B. Standard of Review
Although phrased as a challenge to the sufficiency of the evidence, defendant‘s claims ultimately present questions of statutory interpretation.
C. The Three Strikes Law
“The Three Strikes law was ‘[e]nacted “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses” [citation], [and] “consists of two, nearly identical statutory schemes.” [Citation.] In March 1994, the Legislature codified its version of the Three Strikes law by adding subdivisions (b) through (i) to Penal Code section 667. A ballot initiative [Proposition 184] in November of the same year added a new provision, section 1170.12. These two parallel enactments have reposed, somewhat cumbersomely, in the code since that time.” (People v. Henderson (2022) 14 Cal.5th 34, 43, fns. omitted.)
Both
Many courts have interpreted these provisions to mean that the question of whether a prior offense constitutes a strike is determined by whether the prior offense qualified as a strike at the time of the prior conviction. (E.g., People v. Green (1995) 36 Cal.App.4th 280, 283 [holding that, pursuant to
Also relevant to our analysis are the so-called “lock-in” provisions, which set the effective date for determining qualifying offenses under the Three Strikes law. (See Manduley v. Superior Court (2002) 27 Cal.4th 537, 578–579.) As originally enacted, subdivision (h) of
1998, reclassified certain felonies as serious or violent, it addressed this issue by also adding sections 667.1 and 1170.125 to the Penal Code. These statutes provided that, with respect to offenses committed on or after the effective date of Proposition 21, references to existing statutes in the Three Strikes law were to the statutes as they existed on March 8, 2000, the effective date of Proposition 21.” (Id. at p. 684.) “Similarly, when Proposition 36 reformed the
D. Assembly Bill No. 333
Effective January 1, 2022, Assembly Bill No. 333 amended the language of
E. Relevant Case Law
Defendant argues Assembly Bill No. 333‘s amendments to
gang-related offense under the current version of
Several recent cases have addressed this question. Additionally, our Supreme Court has granted review to address this question.4 We review the existing cases in turn.
strike.” (Id. at p. 1184.) The court therefore concluded, “The fact that the Legislature has changed the definitions of active gang participation and of a gang enhancement under section 186.22 cannot change the status of defendant‘s final . . . conviction as a strike prior.” (Ibid.)
Another court recently agreed with Scott. In People v. Aguirre (2023) 96 Cal.App.5th 488, 491, review granted January 10, 2024, S282840 (Aguirre), the People alleged the defendant had suffered a prior strike conviction based on a 2021 conviction for a gang-enhanced felony. (Ibid.) Finding no evidence to meet the new elements of section 186.22 added by Assembly Bill No. 333, the trial court concludеd the conviction no longer qualified as a strike. The Court of Appeal disagreed, holding: “In 2012, the electorate passed Proposition 36, which provides that, for all offenses committed on or after November 7, 2012, determining whether a prior conviction qualifies as a serious felony conviction or ‘strike’ must be made ‘upon the date of that prior conviction’ and based on the relevant statute ‘as [it] existed on November 7, 2012.’ [Citation.] These provisions fix or lock in the status of a conviction as a strike on the date of the prior conviction. Assembly Bill No. 333 (2021-2022 Reg. Sess.) . . . did not change that. A gang-enhanced felony committed before Assembly Bill No. 333‘s effective date still qualifies as a prior serious felony.” (Ibid.)
Relatedly, in Fletcher, supra, 92 Cal.App.5th at page 1379, review granted, a different panel оf the same court that decided Scott held that, if Assembly Bill No. 333 was construed to apply to serious felonies and strike priors premised on violations of section 186.22, it would constitute an improper legislative amendment of a ballot initiative, specifically Proposition 36. The court noted that Proposition 36 defined a serious felony for purposes of the
satisfy those requirements, the court held it was not required to vacate the true findings on prior serious felony or prior strike convictions. (Id. at p. 1382.)
In contrast, an appellate court reached a seemingly different conclusion in People v. Farias (2023) 92 Cal.App.5th 619, review granted September. 27, 2023, S281027 (Farias). The appeal involved two defendants, both of whose sentences involved prior serious felonies under
One of the prior serious felony and strike allegations for one of the defendants in Farias arose out of a 2009 conviction for participation in a street gang pursuant to
(Farias, at pp. 645–650.) On that basis, the court determined substantial evidence did not support the trial court‘s finding that the prior conviction constituted a prior serious felony under
In passing, the Farias court also noted that this holding would extend to the strike allegation that was based on the prior gang participation felony, to the extent the trial court was able to correct the record to show the omission of a strike finding was 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 section 186.22, subdivision (a), conviction was a serious felony would support a like holding that substantial evidence does not support a finding that the conviction was a strike. As such, if the trial court amends its judgment to reflect it did, in fact, find true that in 2009 [the defendant] was convicted under section 186.22, subdivision (a), and that conviction was for a strike, that finding would need to be vacated and subject to further evidence on remand.” (Farias, supra, 92 Cal.App.5th at pp. 653–654, rev. granted.)
F. Analysis
We agree with those courts that have concluded Assembly Bill No. 333 does not change the status of a defendant‘s conviction as a prior strike. The plain language of the Three Strikes law compels the conclusion that the status of defendant‘s prior conviction as a strike was fixed upon the date of his prior conviction. (
Additionally, defendant was convicted of his current offenses on or after November 7, 2012. Thus, for purposes of the Three Strikes law, the references to
argued his prior conviction did not constitute a strike because his plea to the former section 12031 violation did not constitute an admission of all the elements of
In Strike, the Court of Appeal considered whether the defendant‘s prior conviction for violation of
struck the prior strike finding. (Id. at p. 147.) The court remanded for retrial of the prior conviction allegation, noting the prosecution could try to prove the defendant admitted additional facts that would demonstrate the plea included an admission that the felony offense was committed with another gang member. (Id. at p. 154.)
Both Watts and Strike were relied on by the defendant in Scott. (Scott, supra, 91 Cal.App.5th at pp. 1182–1183, rev. granted.) However, the Scott court determined that neither case was controlling “because they dealt with changes in the judicial interpretation of a statute, rather than amendments to the statute itself.” (Id. at p. 1183.) The court explained: ” ‘Whenever a decision undertakes to vindicate the original meaning of an enactment, putting into effect the policy intended from its inception, retroactive application is essential to accomplish that aim. [Citation.]’ [Citation.] Accordingly, in Robles and Rodriguez, when the Supreme Court interpreted
We find defendant‘s reliance on Farias equally unpersuasive. The Farias court did not meaningfully analyze the applicability of Assembly Bill No. 333 to the prior
strike finding. (Farias, supra, 92 Cal.App.5th at pp. 653–654, rev. granted.) Nor did the Farias court consider the “lock-in” provisions of the Three Strikes law, which do not apply to prior serious felony enhancements (
We also reject defendant‘s argument that the plain language of the Three Strikes law compels the conclusion that prior strike determinations were intended to be made with reference to current law. Defendant contends
phrasing of
In sum, Assembly Bill No. 333 does not apply to alter the status of defendant‘s prior strike conviction. Defendant does not dispute that substаntial evidence supports a finding that his prior conviction constituted a strike under the law as it existed prior to Assembly Bill No. 333. Accordingly, substantial evidence supports the court‘s finding that defendant‘s prior gang-enhanced felony constituted a strike.
After finding true four factors in aggravation relating to defendant‘s criminal history, the court sentenced defendant to upper-term sentences on counts 3, 6, 7, and 8. Defendant argues that, in imposing an upper-term sentence, the court may rely only on factors in aggravation relating to the crime, and not on factors relating to the defendant, such as his criminal history.10 Specifically, he contends the “rule-based” factors set forth in rule 4.421(b) cannot justify “an upward departure from the presumption of middle tеrm sentencing.” He further argues rule 4.421(b) constitutes an unlawful delegation of the Legislature‘s authority to define punishments. We reject both contentions in turn.
A. Additional Background
The information alleged defendant (1) had prior convictions as an adult that were numerous and of increasing seriousness (rule 4.421(b)(2)); (2) served a prior prison term (rule 4.421(b)(3)); (3) was on probation or parole when the crime was committed (rule 4.421(b)(4)); and (4) had prior unsatisfactory performance while on probation or parole (rule 4.421(b)(5)).
When the court conducted a bifurcated court trial on the prior strike allegation, it also considered these four factors in aggravation. The court admitted the following evidence: defendant‘s “certified RAP sheet“; a “certified 969b packet” reflecting defendant‘s 2002 conviction for violation of former section 12021, subdivision (c)(1), with an enhancement under section 186.22, former subdivision (b)(1); a “certified 969b packet” reflecting defendant‘s 2010 conviction for violation of section 245, subdivision (a)(1); a “certified court docket” reflecting that defendant violated his parole in 2014; a “certified court docket” reflecting that defendant violated his post-release community supervision in 2016; a “certified court docket” and a “certified 969b packet” reflecting that defendant was convicted in 2017 for violation of section 69; a “certified court docket” reflecting defendant violated his post-release community supervision in 2017; a “[c]ertified court docket” reflecting defendant violated his post-release community supervision in 2020; and law enforcement testimony reflecting that defendant was on probation at the time the offenses in the instant case occurred.
B. Section 1170, Subdivision (b)
In response to Cunningham, the California Legislature amended
Effective January 1, 2022, Senаte Bill No. 567 (2021-2022 Reg. Sess.) amended
provides, “The court may impose a
A trial court‘s sentencing decisions are reviewable for abuse of discretion. (People v. Panozo (2021) 59 Cal.App.5th 825, 837.) “An abuse of discretion is found where the court ‘relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.’ ” (Ibid.; accord, People v. Carmony (2004) 34 Cal.4th 367, 378 [trial court abused its sentencing discretion when it “considered impermissible factors“].)
C. The Court Was Permitted To Rely on Defendant‘s Prior Convictions
Defendant contends his sentence could exceed the middle term only if justified by “circumstances in aggravation of the crime.”11 (
aggravation of the crime’ ” authorize an upper-term sentence. In other words, defendant contends section 1170, subdivision (b)(2) “sets a threshold requirement which must be met before the upper term becomes an available option.” Thereafter, “[i]f all three terms are available, the court can consider prior cоnvictions in making its decision; if the only two sentencing options are the middle and lower terms, the court can use prior convictions in selecting between the two.”
We disagree with defendant‘s interpretation of section 1170 and therefore reject this argument. As we have already stated, subdivision (b)(3)
D. Nondelegation Doctrine
Defendant argues that interpreting section 1170, subdivision (b) to refer to factors listed in rule 4.421 violates the nondelegation doctrine. Our Supreme Court rejected this argument in People v. Wright (1982) 30 Cal.3d 705 (Wright).
“The legislative branch of government, although it is charged with the formulation of policy, properly may delegate some quasi-legislative or rulemaking authority to administrative agencies.” (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 299.) However, “[a]n unconstitutional delegation of legislative power occurs when the Legislature confers upon an administrative agency unrestricted authority to make fundamental policy decisions.” (Wright, supra, 30 Cal.3d at p. 712.) Thus, “[t]he Legislature must make the fundamental policy determinations, but after declaring the legislative goals and establishing a yardstick guiding the administrator, it
may authorize thе administrator to adopt rules and regulations to promote the purposes of the legislation and to carry it into effect.” (Id. at p. 713.)
Article VI, section 6 of the California Constitution grants the Judicial Council authority to “adopt rules for court administration, practice and procedure.” (
In Wright, our Supreme Court considered whether the legislative direction for the Judicial Council to adopt former rules 421 and 423, the predecessors to rules 4.421 and 4.423, constituted an invalid delegation of legislative power. (Wright, supra, 30 Cal.3d at p. 709.) The high court
Defendant contends Wright is no longer controlling. He argues, “The ability of the aggravating circumstances rule to pass constitutional muster in Wright was derived entirely from its orientation as a creature of guidance and discretion. A rule purporting to define aggravating circumstances for jury consideration would not survive a Wright
analysis.” He contends “the Judicial Council lacks the authority to define punitive enhancements for submission to a jury.”
However, defendant was not subject to an upper-term sentence based on factors that were submitted to a jury. We are not called upon to resolve whether a rule purporting to set forth aggravating factors for jury consideration constitutes a valid delegation of legislative authority.12 Rather, in determining that an upper term was authorized and warranted, the court, in the exercise of its discretion, properly considered defendant‘s prior convictions as factors relating to defendant pursuant to section 1170, subdivision (b)(3) and rule 4.421(b). Wright expressly holds that the development of these factors by the Judicial Council, and thus reliance on these factors by the court, does not involve an unconstitutional delegation of power. (Wright, supra, 30 Cal.3d at pp. 711–714.)
Accordingly, defendant‘s contentions regarding the nondelegation doctrine are without merit.
The judgment is affirmed.
DETJEN, Acting P. J.
WE CONCUR:
FRANSON, J.
MEEHAN, J.
Notes
“(1) Does Assembly Bill No. 333 amend the requirements for a true finding on a prior strike conviction (