Opinion
G052954
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. GARY RAY RAMIREZ, Defendant and Appellant.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 05ZF0119) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed with directions. Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The trial court denied Gary Ray Ramirez's petition for resentencing under Penal Code section 1170.126 (all statutory citations are to the Penal Code unless otherwise noted), finding him statutorily ineligible because he was serving a prison term for committing felony drug offenses to benefit a criminal street gang (§ 186.22, subd. (b)(1) [186.22(b)(1)]), which rendered his convictions serious (§ 1192.7, subd. (c)(28); People v. Briceno (2004) 34 Cal.4th 451 (Briceno)). Ramirez contends he was eligible for resentencing because when he initially was sentenced the court struck the gang enhancements for "all purposes." We do not find the contention persuasive and therefore affirm the order finding Ramirez ineligible for resentencing, but direct the trial court to correct its minutes to reflect the jury found to be true the section 186.22(b) allegations on counts 1 through 4.
I
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006, a jury convicted Ramirez of possession for sale of heroin (Health & Saf. Code, § 11351), possession for sale of methamphetamine (Health & Saf. Code, § 11378), sale or transportation of heroin (Health & Saf. Code, § 11352, subd. (a)), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and active gang participation (§ 186.22, subd. (a)). The jury found he committed the drug crimes (counts 1-4) for the benefit, in conjunction with, or at the direction of a criminal street gang (§ 186.22(b)(1)). The trial court also found he had five prior serious or violent felonies under the Three Strikes law (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)) and two serious or violent felonies per section 667, subdivision (a)(1). The court imposed concurrent terms of 25 years to life under the Three Strikes law for each count, plus two five-year enhancements for the section 667, subdivision (a), priors. The court struck the gang allegations.
This court affirmed the judgment. (People v. Ramirez (March 30, 2009) G038125, opn. ordered nonpub. July 8, 2009, S173336.) In 2014, the superior court granted Ramirez's petition for writ of habeas corpus and vacated his conviction for active gang participation (§ 186.22, subd. (a)).
Accordingly, the section 186.22, subd. (a), conviction is no longer a basis for denying Ramirez eligibility under section 1170.126.
In November 2012, voters enacted the Three Strikes Reform Act of 2012 (Reform Act or Act). The Act added section 1170.126, which authorizes resentencing for eligible persons presently serving prior indeterminate terms under the Three Strikes law.
In July 2014, Ramirez petitioned the Orange County Superior Court for resentencing under section 1170.126. In December 2015, the court found Ramirez was ineligible for resentencing and denied his petition.
II
DISCUSSION
A. The Record Reflects the Trial Court Struck the Gang Enhancements Only for Sentencing Purposes
The Reform Act generally provides a person serving an indeterminate life term imposed under the Three Strikes law for felonies that are not defined as serious (§ 1192.7) or violent (§ 667.5) may petition for resentencing as a second strike offender. (§ 1170.126; People v. Frierson (2017) 4 Cal.5th 225, 234 [petitioning defendant has the initial burden of establishing eligibility; the prosecution bears the burden of proving ineligibility beyond a reasonable doubt].)
Section 1192.7, subdivision (c), provides "'serious felony' means any of the following . . . [¶] . . . (28) any felony offense, which would also constitute a felony violation of Section 186.22." In Briceno, supra, 34 Cal.4th 451, 456, the Supreme Court held the definition of "'serious felony'" in section 1192.7, subd. (c)(28), includes any felony offense committed to benefit a criminal street gang within the meaning of section 186.22(b)(1). (See People v. Amaya (2015) 239 Cal.App.4th 379, 383.)
When Ramirez was sentenced in December 2006, the trial court had the option to strike the gang enhancement under section 186.22, subdivision (g), which provided: "Notwithstanding any other law, the court may strike the additional punishment for the [gang] enhancements provided in this section . . . where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition."
Section 1385 also grants trial courts the power to strike enhancements under certain circumstances. That section provides, "(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. . . . [¶] . . . [¶] (c)(1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a). [¶] (2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a)." (See People v. Thomas (1992) 4 Cal.4th 206, 209-210 [power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing such as allegations a defendant has prior felony convictions].)
Here, the issue is whether the trial court dismissed or struck the gang enhancements "altogether," or struck only the additional punishment for the enhancements. (People v. Fuentes (2016) 1 Cal.5th 218, 222 [trial court has the discretion to strike "gang enhancement altogether" under section 1385, subd. (a)].) Generally, striking a serious or violent felony enhancement for sentencing does not alter the nature of the conviction in future proceedings.
At sentencing in December 2006, the trial court (Judge Toohey) declined to strike Ramirez's prior convictions, which required the court to sentence Ramirez under the Three Strikes law. The court therefore imposed concurrent terms of 25 years to life for the current felonies, and also imposed two consecutive five-year enhancements under section 667, subdivision (a). The court then stated, "Based upon the substantial sentence required by the Three Strikes law, and the 667(a) mandates the court strikes the allegation under 186.22(b)(1) and 667.5 in the interest of justice, for a total term of 35 years to life in state prison." The court's sentencing minute order reflected the court struck the section 186.22(b)(1) gang "[e]nhancement[s] for purposes of sentencing only." The abstract of judgment does not list the gang enhancements.
Because Judge Toohey had retired by the time Ramirez filed his resentencing petition, the case was reassigned to Judge Kelly. (See § 1170.126, subd. (j) [if sentencing judge not available presiding judge shall designate another judge to rule on the defendant's petition].)
This was the amended abstract filed in February 2014, after the superior court vacated Ramirez's conviction for active gang participation and dismissed the charge. The court directed amendment of the sentencing minutes and abstract of judgment. We also have reviewed the original abstract filed in January 2007, which also did not list the gang enhancements in section 2. --------
In July 2014, Ramirez petitioned for resentencing under the Reform Act. The district attorney asked the trial court to dismiss the petition because Ramirez was serving prison terms for serious felonies and therefore ineligible. At a December 2015 hearing addressing Ramirez's eligibility for resentencing, Ramirez's counsel acknowledged the sentencing court's minutes provided "the 186.22(b)(1) was stricken for purposes of sentencing," but noted the court failed to cite the statutory authority that allowed the court to take that action. Counsel noted if the court struck the enhancement under section 186.22, subdivision (g), that would have "stricken that enhancement for punishment purposes only." Because the record was silent on the basis the sentencing court used to strike the enhancement, counsel argued "the court should give [him] the benefit of the doubt" and deem it "stricken under 1385(a)
The prosecutor relied on People v. Quinones (2014) 228 Cal.App.4th 1040, 1042 (Quinones), which held an arming enhancement found true by the jury, but dismissed for sentencing purposes at the defendant's original sentencing hearing, disqualified him for resentencing under Proposition 36.
After reviewing the record, Judge Kelly found Ramirez's current convictions were serious felonies based on the gang enhancements pursuant to Briceno, supra, 34 Cal.4th 451. The court determined "the minutes are [not] silent with respect to how it was stricken because it clearly says stricken for purposes of sentencing only." The court explained, "Judge Toohey could have given more time and he did not. He chose not to. He struck it, but for purposes of sentencing only." The court found "Quinones clearly states that when an enhancement is stricken for purposes of sentencing, it doesn't affect the Three Strikes situation," and Ramirez therefore was not eligible for resentencing.
Ramirez contends the resentencing court erred in concluding Judge Toohey struck the gang allegations only to affect the sentencing. Ramirez relies on Judge Toohey's oral pronouncement of judgment, which he asserts reflects the trial court struck the enhancements for all purposes. He also relies on section 2 of the abstract of judgment form, which directs the court to list "enhancements charged and found to be true tied to specific counts," and to enter time imposed using "S" if the court stayed punishment or "PS" for punishment stricken. The abstract advises "DO NOT LIST ENHANCEMENTS FULLY STRICKEN by the court." Because the abstract does not list the gang enhancements, Ramirez asserts the court must have "fully stricken" them.
Ramirez also notes Judge Toohey stated he was striking "the allegation under 186.22(b)(1)," not the "punishment for" the allegation or the "enhancement." Ramirez asserts "the allegation, [] is the entire accusation made in the second amended indictment." Ramirez relies on Judge Toohey's comments concerning Detective Flynn, who testified at trial as the prosecution's gang expert, to support his argument Judge Toohey intended to strike the enhancements for all purposes. In conjunction with a new trial motion, Ramirez's lawyer argued the court had erred by failing to sever the gang charge and enhancements because the gang evidence would not have been admissible in a trial of the drug charges alone. Counsel noted the court had not allowed Flynn to testify concerning Ramirez's alleged connections with the Mexican Mafia. Judge Toohey denied the new trial motion without comment. During the sentencing portion of the hearing that immediately followed, defense counsel objected to Flynn's statements contained in the presentence report that Ramirez was "one of the top members" in the Mexican Mafia gang and had been receiving letters in jail from Mexican Mafia associates. When sentencing Ramirez, the court stated the "biggest issue" was whether to exercise discretion under section 1385 to strike the priors making Ramirez eligible for sentencing under the Three Strikes law. The court declined to do so, noting it was "[g]iving [] Ramirez every benefit of the doubt and not considering the statements of Detective Flynn" in the probation report.
We are not persuaded by Ramirez's arguments. The sentencing court's minutes state the court struck the gang "[e]nhancement[s] for purposes of sentencing only." The clerk has an official duty to record accurately the court's sentence. (See People v. Zackery (2007) 147 Cal.App.4th 380, 382 [court clerk may not include in the minutes and the abstract of judgment provisions that were not in the judge's pronouncement of sentence].) Nothing suggests the clerk did not correctly perform this duty. (Evid. Code, § 664.) The court's minutes were consistent with and did not contradict Judge Toohey's oral pronouncement. (Cf. People v. Contreras (2015) 237 Cal.App.4th 868, 880-881 [oral pronouncement of judgment generally given credence over a contradictory minute order].)
Judge Toohey's express statement during the sentencing hearing further supports our conclusion. As noted, Judge Toohey stated "[B]ased upon the substantial sentence required by the Three Strikes law, and the 667(a) mandates the court strikes the allegation under 186.22(b)(1) . . . in the interest of justice . . . ." His remarks in context suggest he concluded the interests of justice did not warrant additional punishment. Nothing suggests the court held doubts about the jury's gang findings other than the punishment. Indeed, just before sentencing, Judge Toohey denied Ramirez's new trial motion premised in part on the insufficiency of the evidence to sustain the substantive gang conviction and gang enhancements. The sentencing court also implicitly declined Ramirez's invitation, contained in the new trial motion, to exercise its discretionary power to "dismiss" the gang conviction and enhancements under section 1385.
Ramirez interprets the sentencing court's oral pronouncement at sentencing to "show[] that appellant's argument regarding Flynn's testimony had some influence on the trial court's sentencing decisions." The court's statements concerning Flynn related to the officer's opinion in the presentence report that Ramirez had connections to the Mexican Mafia. The trial court's comments do not support Ramirez's argument the court intended to strike the gang enhancements for all purposes. Indeed, Judge Toohey did not expressly state an intent to dismiss the gang enhancements for all purposes under section 1385, subdivision (a). His comments suggest he did not want to impose additional punishment because of the lengthy sentence already imposed. This was consistent with the reasons listed in the minutes, which explained the court struck the priors for "sentencing purposes."
Quinones is instructive. There, a jury convicted the defendant of drug offenses, possession of a firearm by a convicted felon and found he was personally armed with a firearm during the drug offenses. At sentencing, the trial court struck the arming "allegation 'at this time as being unnecessary,'" but imposed a sentence on the felon-in-possession charge, noting the defendant possessed a pistol when he committed the drug offenses. (Quinones, supra, 228 Cal.App.4th at p. 1042.) Based on the defendant's prior serious or violent felonies, the court imposed a life sentence under the Three Strikes law.
The defendant filed a resentencing petition alleging his felony convictions were not serious or violent because the sentencing judge "'did not just strike the punishment; rather, it struck the enhancement allegations completely.'" (Quinones, supra, 228 Cal.App.4th at p. 1042.) The appellate court in Quinones disagreed, noting the jury found the defendant possessed a firearm while committing the offenses, and the sentencing judge suggested the same during the sentencing proceeding. Quinones explained that although the sentencing judge found the additional term for the firearm enhancement to be "unnecessary" and declined to impose it, apparently because of the lengthy Three Strikes sentence imposed, "that [did] not change the fact that defendant was armed with a firearm during the commission of the current offenses. Nothing in the record on appeal suggests any legal infirmity with the enhancement, such as a lack of evidentiary support, or other legal defect. [¶] Nor, contrary to repeated implications by defendant, did the sentencing judge dismiss the enhancement under section 1385. Defendant concedes that at the time, section 1170.1, subdivision (h) permitted trial courts to strike the 'additional punishment' for the armed enhancement. [Citation.] The record, read in context, shows that is what occurred." (Quinones, supra, 228 Cal.App.4th at p. 1044; see People v. Shirley (1993) 18 Cal.App.4th 40, 47 [striking great bodily injury enhancement at sentencing did not preclude a later court from concluding prior conviction was a serious felony; enhancement is not nullified by sentencing court's leniency].)
Similar to Quinones, here the jury found the gang allegations true beyond a reasonable doubt. As in Quinones, the court declined to punish Ramirez for the enhancement apparently because it had imposed a lengthy Three Strikes sentence. Nothing suggests Judge Toohey believed Ramirez did not commit the drug offenses for a gang-related purpose. And nothing in the record suggests an infirmity with the enhancements, such as a lack of evidentiary support, or other legal defect. The trial court did not state it was dismissing the enhancement under section 1385, subdivision (a). Section 186.22, subdivision (g), and section 1385, subdivision (c), permitted the sentencing court to strike the additional punishment for the gang enhancement.
Ramirez argues "'[s]triking an enhancement is tantamount to dismissing it.' (People v. Aubrey (1998) 65 Cal.App.4th 279, 284.)" Aubrey held that the imposition of a section 667, subdivision (a), enhancement did not deprive the trial court of discretion to grant probation to an eligible defendant, reasoning that all defendants are eligible for probation unless a statute provides otherwise. (Id. at p. 281.) The court explained section 1385, subdivision (b)'s, prohibition against "striking" a section 667, subd. (a), prior does not necessarily preclude a court from staying the punishment on an enhancement incident to a grant of probation. (Id. at pp. 283-284.) The court cited the difference between striking and staying a prior. "Striking an enhancement is tantamount to dismissing it. [Citation.] By contrast, '"A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency."' [Citations.]" (Id. at p. 284.) Aubrey does not stand for the proposition an enhancement is dismissed when the court strikes punishment for the enhancement. Nor does Aubrey assist in ascertaining whether a court has dismissed or struck the gang enhancements "altogether," or merely struck the additional punishment for the gang enhancement.
Relying on People v. Banuelos (2005) 130 Cal.App.4th 601, Ramirez argues the record is at best ambiguous whether the court struck the gang allegation for all purposes, and therefore we must construe the ambiguity in his favor. In Banuelos, the defendant had suffered a prior conviction after pleading guilty to a violation of section 245, subdivision (a)(1), which prohibited "an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury . . . ." Assault with a deadly weapon was a serious felony, but assault by means of force likely to produce great bodily injury was not. (Ibid. at fn. 3.) The abstract of judgment described the violation of section 245, subdivision (a)(1), as "ASSAULT GBI W/DEADLY WEAPON." (Id. at p. 605.) The court held the reference to the crime was ambiguous and could be read to mean the assault was committed both by means of force likely to produce great bodily injury and with a deadly weapon, but could also be construed as a shorthand description of the criminal conduct covered by section 245, subdivision (a)(1). (Id. at p. 606.) The defendant's guilty plea to a criminal statute punishing alternative types of conduct is insufficient to prove the defendant committed each type of conduct, and was not substantial evidence a deadly weapon was in fact used during the commission of that offense. The court held, "To hold otherwise would improperly shift to the defense the burden of proof on the seriousness of the prior." (Ibid.; see People v. Ulloa (2009) 175 Cal.App.4th 405, 413 [record ambiguous whether § 186.22, subd. (d), allegation enhanced a felony or misdemeanor].) Banuelos is distinguishable because any ambiguity here is resolved by the court's minutes.
Ramirez argues even if the trial court struck the section 186.22(b)(1) allegation for sentencing purposes, he is nonetheless eligible for resentencing because the court did not impose punishment for the enhancements, and section 1170.126, subdivision (e), states an inmate is eligible for resentencing if he "is serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that are not defined as serious and/or violent felonies . . . ." (§ 1170.126, subd. (e), italics added.) The claim fails because his drug offenses, coupled with the gang enhancements, made the drug offenses serious felonies, and he was therefore serving indeterminate terms for the drug offenses, even if he was not serving additional time for the gang enhancements.
Finally, Ramirez complains his counsel at the resentencing hearing was ineffective because the reporter's transcript of the underlying sentence supported counsel's arguments and she allowed Judge Kelly to rule without the reporter's transcript. (See Strickland v. Washington (1984) 466 U.S. 668, 687.) Based on our review of the portions of the record allegedly omitted - the reporter's transcript and abstract of judgment - it is not reasonably probable the result of the proceeding would have been more favorable to Ramirez. (Strickland, supra, at pp. 693-694 [reasonable probability is a probability sufficient to undermine confidence in the outcome].) B. Court's April 12, 2006, Minutes
Ramirez notes the trial court's minutes from April 12, 2006, erroneously reflect the jury found true four 186.22, subd. (b), enhancements associated with count 1. The second amended indictment alleged a section 186.22, subd. (b), allegation as to each of the four counts. He asks this court to correct the minutes pursuant to the court's inherent power to correct clerical errors in the record. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will direct the trial court to correct its minutes.
III
DISPOSITION
The order denying resentencing under section 1170.126 is affirmed. The trial court is directed to correct its April 12, 2006, minutes to reflect the jury found a section 186.22, subd. (b), allegation to be true on counts 1 through 4.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.