People v. Gonzalez

317 Cal.Rptr.3d 450

The PEOPLE, Plaintiff and Respondent,

v.Francisco GONZALEZ, Defendant and Appellant.

F084952

Court of Appeal, Fifth District.

Filed January 23, 2024

West Codenotes

Prior Version Recognized as Unconstitutional

Cal. Penal Code § 1170(b)

APPEAL from a judgment of the Superior Court of Kern County. Gregory A. Pulskamp, Judge. (Super. Ct. No. BF185179A)

William Safford, Palo Alto, 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.

OPINION

DETJEN, Acting P. J.

INTRODUCTION

Defendant Francisco Gonzalez was convicted on three counts of possession of a firearm by a person previously convicted of a felony (Pen. Code,¹ § 29800, subd. (a)(1); counts 3, 4 & 5), possession of methamphetamine while armed with a loaded and operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 6), and two counts of possession of ammunition by a person previously convicted of a felony (§ 30305, subd. (a)(1); counts 7 & 8). In a bifurcated trial, the court found defendant was convicted in 2002 of a violation of former section 12021, subdivision (c)(1), with a gang enhancement pursuant to section 186.22, subdivision (b)(1), which offense constituted a "strike" within the meaning of the "Three Strikes" law. (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)). The court also found true four factors in aggravation: (1) defendant had prior convictions as an adult that were numerous and of increasing seriousness (Cal. Rules of Court,² rule 4421(b)(2)); (2) defendant served a prior prison term (rule 4.421(b)(3)); (3) defendant was on probation or parole when the crime was committed (rule 4.421(b)(4)); and (4) defendant's prior performance while on probation or parole was unsatisfactory (rule 4.421(b)(5)).

The court sentenced defendant on count 3 to a six-year term, calculated 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 section 654; and on each of counts 7 and 8 to a six-year term, and stayed pursuant to section 654.

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 defendant at a car wash on the afternoon of December 29, 2020. Inside defendant’s vehicle, deputies located two revolvers containing live ammunition. In the trunk, deputies located a "sawed off shotgun." In defendant’s right front pocket, they located 1.94 grams of methamphetamine.

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, subdivi- sion (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.

[1–4] "The proper interpretation of a statute is a question of law we review de novo. [Citations.] ‘ " ‘ "As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We begin by examining the statute’s words, giving them a plain and commonsense meaning." ' " ' [Citation.] ‘ "[W]e look to ‘the entire substance of the statute … in order to determine the scope and purpose of the provision …. [Citation.]’ [Citation.] That is, we construe the words in question ‘ "in context, keeping in mind the nature and obvious purpose of the statute …." [Citation.]’ [Citation.] We must harmonize ‘the various parts of a statutory enactment … by considering the particular clause or section in the context of the statutory framework as a whole.’ " ’ " (People v. Lewis (2021) 11 Cal.5th 952, 961, 281 Cal.Rptr.3d 521, 491 P.3d 309.) "If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs." (People v. Snook (1997) 16 Cal.4th 1210, 1215, 69 Cal.Rptr.2d 615, 947 P.2d 808.) The same principles that govern our interpretation of statutes enacted by the Legislature apply to those adopted by the electorate. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.)

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, 301 Cal.Rptr.3d 243, 520 P.3d 116, fns. omitted.)

Both section 667 and section 1170.12 provide that "[any] Offense defined … in subdivision (c) of [s]ection 1192.7 as a serious felony" qualifies as a prior strike. (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Pursuant to the Three Strikes law, a felony offense that "would also constitute a felony violation of [s]ection 186.22" qualifies as a strike. (§ 1192.7, subd. (c)(28); see §§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Gang-enhanced felonies (see § 186.22, subd. (b)(1)) also qualify as strikes. (People v. Briceno (2004) 34 Cal.4th 451, 462, 20 Cal.Rptr.3d 418, 99 P.3d 1007.)

Section 1170.12 also provides that "[t]he determination of whether a prior conviction is a prior serious … felony conviction for purposes of this section shall be made upon the date of that prior conviction." (§ 1170.12, subd. (b)(1).) Section 667, subdivision (d)(1), contains a similar provision with slightly different wording: "The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior convic- tion." 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, 42 Cal. Rptr.2d 249 [holding that, pursuant to § 667, subd. (d)(1), "the court is presently required to look backward to see if, at the time of the conviction of the past offense, such past offense qualified as a serious or violent offense under section 1192.7, subdivision (c) or section 667.5, subdivision (c)"]; People v. Anderson (1995) 35 CalA.pp.4th 587, 600, 41 Cal.Rptr.2d 474 ["Clearly, the Legislature intended that the qualifying status of a conviction would be fixed upon the date of the prior conviction, so that no subsequent actions … could alter that status."]; People v. Reed (1995) 33 Cal. App.4th 1608, 1611, 40 Cal.Rptr.2d 47 ["the determination whether an offense is a ‘strike’ must be made with reference to the date of the prior conviction"].)

Also relevant to our analysis are the socalled "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, 117 Cal.Rptr.2d 168, 41 P.3d 3.) As originally enacted, subdivision (h) of section 667 provided that "[a]ll references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on June 30, 1993." (Stats. 1994, ch. 12, § 1.) An uncodified portion of Proposition 184 similarly provided that "[a]ll references to existing statutes [in section 1170.12] are to statutes as they existed on June 30,...