People v. Reynoso CA2/8 ( 2021 )

Filed 1/7/21 P. v. Reynoso CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B297989
(Los Angeles County
Plaintiff and Respondent, Super. Ct. Nos.
BA425009-10, BA425009-11)
v.
ALBERTO REYNOSO,
Defendant and Appellant.
THE PEOPLE, B299317
Plaintiff and Appellant,
v.
GERARDO R. ROJAS,
Defendant and Appellant;
ALBERTO REYNOSO,
Defendant and Respondent.
CONSOLIDATED APPEALS from judgments of the
Superior Court of Los Angeles County, Katherine Mader, Judge.
Affirmed.
Susan Morrow Maxwell, under appointment by the Court of
Appeal, for Defendant and Appellant and Defendant and
Respondent Alberto Reynoso.
Jackie Lacey, District Attorney, Phyllis C. Asayama,
Matthew Brown and John Niedermann, Deputy District
Attorneys, for Plaintiff and Appellant.
Gloria C. Cohen, under appointment by the Court of
Appeal, for Defendant and Appellant Gerardo R. Rojas.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
All parties assert sentencing error in this case. The People
allege the trial court abused its discretion when it struck several
prior strike convictions of Alberto Reynoso and Gerardo Rojas in
the interest of justice. Reynoso and Rojas contend the court erred
when it imposed two 5-year serious felony sentence
enhancements pursuant to Penal Code section 667,
subdivision (a)(1).1 We conclude the trial court acted within the
1 All undesignated statutory references are to the Penal
Code.
2
scope of its discretion when it struck the prior strikes and
imposed the sentence enhancements. We affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Reynoso and Rojas were among 13 defendants in a large,
multi-year criminal prosecution of Mexican Mafia members and
affiliates alleged to have participated in an extortion ring
involving the collection of “taxes” from gangs and within state
prisons. In the first amended information, Reynoso and Rojas
were charged with conspiracy to commit extortion (§§ 182, subd.
(a)(1)), 520). This offense was alleged to have been committed for
the benefit of, at the direction of, and in association with a
criminal street gang pursuant to section 186.22, subdivisions
(b)(1)(A) and (b)(4). Reynoso was alleged to have suffered three
prior strike convictions, and Rojas two prior strike convictions,
for the purposes of section 667, subdivision (a)(1) and the “Three
Strikes” law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)).
Reynoso, Rojas, and another defendant were the final
defendants to resolve the charges against them. Both Reynoso
and Rojas entered open pleas2 of no contest to the conspiracy
charge, admitted one of the 72 overt acts alleged in the amended
information, and admitted the gang enhancement and prior
conviction allegations.
2 An open plea is one by which the defendant is not offered
any promises. (People v. Williams (1998) 17 Cal.4th 148, 156
(Williams).) The defendant “plead[s] unconditionally, admitting
all charges and exposing himself to the maximum possible
sentence if the court later chose to impose it.” (Liang v. Superior
Court (2002) 100 Cal.App.4th 1047, 1055–1056.)
3
In March 2019 the trial court held a full-day sentencing
hearing. The court had prepared independently for the hearing,
advising counsel at the start of the hearing that “what I have
done is looked at all the records, the public records, or the records
in the court file, and have taken judicial notice of everything that
is in the court files of all the 13 original defendants in this case.”
The court explained, “I believe that my role for each of the
defendants before me is to look at the seriousness of their conduct
and their prior history and come up with an appropriate
sentence. So in order for me to do that properly, I decided it
would be appropriate for me to look at the prior history, the
activities alleged in this case[,] and the sentence that was given
to the other nine[3] defendants in that case. [¶] I have
accumulated a number of records. Some are preliminary hearing
transcripts from other proceedings. Some are prior records of
prior cases, including the facts underlying some of the prior
convictions for the defendants in front of me in their prior strikes.
These are all court files.” The court made the materials it
reviewed available to counsel.
The court first reviewed the roles played in the extortion
ring by the defendants who had already been sentenced, as well
as their sentences, because the court “believe[d] that my role here
is to try to fit in . . . these defendants’ conduct in this case and
their prior record with everything that happened to the other
nine defendants who were charged with the same conspiracy to
commit extortion.” The court conducted this review on the record
3 One other defendant had entered into a plea agreement but
had not been sentenced, and the court indicated this defendant
did not enter into its sentencing analysis.
4
for the purposes of appellate review, because “any reviewing
court would want to make sure that I did not make a decision
that was completely out of whack.”
After discussing the previously-sentenced defendants’
conduct, criminal history, and sentences, the court turned to
Reynoso. The court described in detail Reynoso’s conduct in the
larger conspiracy: In January 2014, a high level Mexican Mafia
member, Emiliano Lopez, instructed a confidential informant to
contact Reynoso in Folsom State Prison because Reynoso was
going to assume the job of collecting certain taxes; Reynoso told
the informant he would collect money in the prison and send it to
his wife, and also identified the people who would be collecting
money in other prisons; the informant was informed in March
2014 that Reynoso worked for Lopez; Reynoso’s wife told the
informant she planned to send heroin into the prison at Reynoso’s
request, and asked how much of the profit to give Lopez. In
telephone calls Reynoso discussed money and money orders and
inquired into an associate’s murder.
The court also recited Reynoso’s criminal history, including
his three prior strikes. In 1990 he was charged with murder,
which was reduced to manslaughter (§ 192), and sentenced to
seven years in state prison. This conviction, his first strike, “had
to do with the burglary of some cars with some other people, a
fight with somebody else who may or may not also have been
burglarizing cars. The defendant and his accomplices are alleged
to have beaten the victim to death.” In 1996, Reynoso was
sentenced to county jail for 180 days for misdemeanor vandalism.
Also in 1996, he was sentenced to 32 months in prison for being a
felon in possession of a firearm (§ 12021). He committed a
Vehicle Code violation in 1998, and in 1999 he was sentenced to
5
two years in state prison for assault with a deadly weapon other
than a firearm (§ 245, subd. (a)(1)) for an incident arising out of a
child custody dispute. The court considered this crime, Reynoso’s
second strike, more serious than the short sentence would have
suggested, as he had pursued the victim with a knife. Finally, in
2002, Reynoso was sentenced to 18 years in state prison for
making criminal threats (§ 422), his third strike, after he
absconded from parole, fired a gun in the air, threatened to kill
some people, and possessed a firearm and cocaine. The court
concluded, “So that is what I have learned about Mr. Reynoso in
terms of the facts of this case and his prior record,” and invited
counsel to provide any other information for its consideration.
Reynoso’s counsel, who advocated for a sentence “in the low
teens,” argued Reynoso was a late-comer and minimal participant
in the criminal scheme, he was commanded to participate by a
person connected to a main member of the Mexican Mafia, and he
knew he would be in danger if he did not comply. “The extent of
Mr. Reynoso’s involvement spans about five months that the
People are able to document. The [money] transfers and the
money order in total, I think, come out to somewhere in the $800
range. And that’s the extent of his participation with this
organization, solely to avoid being the victim and the target that
some of the co-defendants . . . were when they didn’t want to
quote, unquote, participate anymore.”
Reynoso’s counsel mentioned one codefendant who had
actively participated in the criminal scheme, had a prior strike,
and received an eight-year sentence, and another who was very
involved in the crimes but had no prior strikes, who received six
years. The court responded, “Well, you have to also be cognizant
of the type of strikes. I mean, your client’s prior behavior and his
6
18 years that he got for [making criminal threats] is on the top
level of egregious prior behavior.”
Counsel agreed and said Reynoso accepted responsibility
and did not mean to minimize his prior conduct. However, “[i]n
this particular case the only real consequence that anybody is
aware of is that [Lopez] would pay his kids money out of the
money he collected. There was never any evidence that the
money was going back into [the Mexican Mafia], back into buying
firearms or narcotics or anything like that. [Lopez] was just
sending the money to his family.”
Reynoso personally addressed the court, acknowledging his
criminal history and asking the court to consider that he was
young when he committed his crimes but was now 46 years old.
When he was not in prison he had a steady job; he studied
electrical work in trade school and was close to graduating; and
he dreamed of becoming an electrician. He worked with children,
coached baseball, and was a father, grandfather, brother, and
son.
The prosecutor advocated for a sentence of 30 years to life.
He argued the person who instructed Reynoso to get involved in
the criminal scheme was not a major Mexican Mafia player.
While the prosecutor agreed Reynoso’s period of involvement was
at the end of an investigation that lasted almost two years, and
the total amount of money he was known to have collected was
not very high, Reynoso was nonetheless “very much involved as a
high associate within the Mexican Mafia, well[-]regarded and
trusted.” He was “still in up to his neck in the Mexican Mafia
trying to get ahead and working at it.” Striking prior strikes was
not appropriate because Reynoso did not in any way fall outside
the Three Strikes scheme: His prior strikes were violent. He
7
participated in beating a man to death. While the prosecutor
argued Reynoso deserved a 25-years-to-life sentence plus three
5-year sentence enhancements, he could envision the court
striking two of the three enhancements under section 667,
subdivision (a) on the basis of Reynoso’s age.
The court then reviewed Rojas’s participation in the crime
and his criminal history. Rojas had texted the confidential
informant in 2013 about the collection of money, texted the
informant that a team was “hungry and anxious to get at” others,
texted “they would have fun with” a Pasadena gang if it did not
cooperate, collected money from a Pasadena gang for Lopez in
January 2014, and promised to get money “from every joint.”
Rojas had committed vandalism as a juvenile in 1992. He was
convicted of his first strike, assault with a firearm (§ 245, subd.
(a)(2)), in 1995 after an altercation in which he shot someone in
the face, and he received a three-year sentence. He committed
more vandalism, then domestic violence, and in 2003, he
committed an assault with great bodily injury with a gang
allegation (§ 245, subd. (a)(1)), his second strike. Rojas’s
subsequent crimes were of decreasing seriousness: driving under
the influence, misdemeanor assault and concealed dirk or dagger,
and a felony driving under the influence with prior conviction
that resulted in a two-year sentence in 2013.
Rojas’s counsel described him as “overall . . . one of the
least involved individuals” prosecuted and a “fungible” foot
soldier rather than a planner of crime. Rojas’s involvement in
the entire multi-year tax collection scheme lasted only three
months. He had reported that his partners were not doing what
they were supposed to do and wanted to take over collections for
Pasadena. Rojas made a number of phone calls over the three
8
months and collected $1,200. Counsel acknowledged the
seriousness of the request to have “fun” with nonpaying parties
but said Rojas was under pressure at the time. Counsel pointed
out that other male defendants who were more actively involved
in the conspiracy received sentences of between seven and
13 years; while those defendants did not have two prior strikes,
Rojas’s second strike was only a strike because it had been
committed for the benefit of a gang. The female defendants had
fared even better: they were integral parts of the conspiracy but
one received a suspended sentence of eight years, and the other
six or seven years.
Rojas’s counsel described the assault with a firearm as “a
terrible offense,” but pointed out Rojas had been 18 years old at
the time. Rojas’s drunk driving offenses reflected his problem
with alcohol and being around other gang members. He was a
hard worker who worked at a packing company for six months
before his arrest. He lived at home when not in jail, and he was
close to his family, who had been involved and supportive during
the criminal proceedings. His family support and employment
“show that he has some caring and some ability beyond [what] we
usually see.” Rojas had been in jail for four years already, two of
which were in “the hole” not because of bad behavior but due to
policy; it took months to get him moved to the general population
so he could get an education. Counsel was unaware of Rojas
having any problems in county jail. In light of Rojas’s attempts
to educate himself, his family support, his ability to work hard if
he stayed sober, and the hard time he had already served, Rojas’s
counsel asked the court to reach a sentence of “ten years by
striking the prior, by finding the midterm or high term, and then
9
by adding the lesser period of time for the gang involvement that
will give it a serious crime.”
The prosecutor sought a 30-years-to-life sentence, arguing
Rojas’s texts and calls showed he was “all in” and actively sought
permission to use violence. He was “as helpful as he [could]
possibly be” to the Mexican Mafia, and he knew what he was
doing. Rojas’s conduct constituted multiple completed extortions.
His criminal history was lengthy and serious. Rojas’s behavior
was “not the actions or conduct of someone who falls outside the
scope of the Three Strikes scheme.” As with Reynoso, Rojas’s age
was in his favor, but the prosecutor argued reducing a sentence
merely because of a defendant’s age was inappropriate. The
prosecutor distinguished the conduct and criminal history of the
defendants who received lighter sentences and said Rojas “st[u]ck
out in terms of his conduct and the nature of his conduct” and his
informed willingness to go the extra mile for the Mexican Mafia.
The court acknowledged its decision whether to strike a
strike was a matter of discretion that had to be supported by
reasons placed on the record. It found Reynoso and Rojas were
entrenched associates of the Mexican Mafia who had engaged in
criminal behavior for decades and had not outgrown the criminal
behavior of their youth. “What I saw in looking at the records is
that while even people whose activity seems to decrease over the
years in seriousness, such as Mr. Rojas, he still was very actively
tangled up and engaged in Mexican Mafia activity after his last
non-serious offense, the DUI with the priors. I’m not saying it’s
not serious, but nonviolent or gang-related type offense. So all of
a sudden he’s back being involved in the Mexican Mafia again,
which seems like everybody really was. [¶] And . . . all of our
defendants are mature. They’re grown men. They may have
10
gotten married, and they may have children and such, but this
playing gang members has never really stopped. And it’s despite
the fact that they have the love of their family and family
members.” That love and support “has not really stopped the
behavior.” The court opined the defendants would be associated
with the Mexican Mafia for the rest of their lives. They had not
debriefed or taken steps to disassociate.
The court said, “It is disturbing to me that—and I see this
so often in the criminal justice system[]—that depending upon
the prosecutor, depending upon the different head deputy, there
are different ways of looking at cases that make tremendous
differences in people’s lives. [¶] So some people who were
charged in this case, who are just, to me, as hard-core as the
defendants in front of me, they inexplicably received more lenient
sentences.” The court acknowledged the devastating impact of
the Mexican Mafia and other gang activity in many communities,
and it said it was not reluctant to impose third sentences in third
strike cases when appropriate. But in this case, the court said,
“[w]e don’t have anybody who was assaulted or killed, or we don’t
have a situation where there’s an act of violence that’s actually
carried out. We have threats that are made by various people but
not carried out. [¶] So while I really do consider the conduct to
be very serious and threatening to everybody who wants to walk
the streets, I can’t equate the people getting life sentences for
murder and attempted murder and discharge of a gun by a gang
member and great bodily injury and those sorts of things. I
cannot relate this to conspiracy to commit extortion even in
furtherance of a gang. [¶] The victims, quote, unquote, in this
case are street gang members themselves. There’s never been, as
I understand it, any specific victim who has been identified who
11
has testified . . . they felt fear in a classic case of extortion unless
they paid up to any of these . . . individuals.”
Reynoso, the court said, had been sentenced to seven years
for manslaughter in 1990. “And in order to reach the sentence
that I am going to impose, which I believe is appropriate in this
case, which would be 23 years, I do need to strike that strike.”
While it was willing to strike the 1990 strike, the court said
Reynoso’s later criminal threats strike “definitely should not be
struck.”4 The court stated it would select the high term of four
years for the extortion, double it pursuant to the Three Strikes
Law, add the high term of four years for the gang enhancement
allegation, and impose two 5-year enhancements for serious
felony convictions, for a total of 22 years in state prison. The trial
court indicated its intent to strike one of Rojas’s strikes and to
select the high term for the extortion, doubled, plus the high term
for the gang enhancement and two 5-year serious felony
conviction enhancements, also a total of 22 years in prison.
The court imposed sentence at subsequent hearings. For
Reynoso, the court imposed the 22-year sentence it had
previously announced. After further argument, the court selected
the mid-term sentence for Rojas rather than the high term
sentence it had earlier indicated, “because I do believe that in
weighing the responsibility of Mr. Rojas compared to everybody
else in this case and understanding that he had two prior strikes,
but also understanding that there has been a lengthy period of
time since the last strike, that his last 16 years the crimes have
4 The court did not mention Reynoso’s assault with a deadly
weapon strike at this hearing but later clarified it was striking
two strikes.
12
been decreasing in seriousness and basically as a result of alcohol
abuse and the fact that the conversations that were recorded that
we know about[,] at least[,] really were of a briefer period of time
than some of the other defendants. I think that mid term on the
underlying offense is appropriate.” Rojas was sentenced to
20 years in prison.
The People and Reynoso appealed. Rojas joined Reynoso’s
claim of sentencing error by filing a supplemental respondent’s
brief.
DISCUSSION
I. Prior Strikes
In deciding whether to strike a prior strike conviction in
the interest of justice (§ 1385), a trial court may not consider
“factors extrinsic to the [Three Strikes] scheme, such as the mere
desire to ease court congestion or, a fortiori, bare antipathy to the
consequences for any given defendant.” (Williams, supra,17 Cal.4th at p. 161.) The court “ ‘must consider whether, in light
of the nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies.’ ” (People v.
Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
The People allege the trial court erred when it struck two of
Reynoso’s prior strike convictions and one of Rojas’s prior strikes
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497. We review the trial court’s decision for abuse of discretion.
(Carmony, supra, 33 Cal.4th at p. 376.) This standard of review
“asks in substance whether the ruling in question ‘falls outside
13
the bounds of reason’ under the applicable law and the relevant
facts.” (Williams, supra, 17 Cal.4th at p. 162.) “In reviewing for
abuse of discretion, we are guided by two fundamental precepts.
First, ‘ “[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.’ ” Second, a
decision will not be reversed merely because reasonable people
might disagree. An appellate tribunal is neither authorized nor
warranted in substituting its judgment for the judgment of the
trial judge. “Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.” (Carmony, at pp. 376–377.) Applying this standard, we find
no abuse of discretion.
It is evident from the record the court invested considerable
time and effort deciding the appropriate sentences for these
defendants and exercised informed discretion in selecting their
sentences. Prior to the sentencing hearing, the court collected
and reviewed the defendants’ criminal history and examined
their conduct and roles in the present matter, the conduct and
roles of other defendants, and the outcomes for the other
defendants. During the extensive sentencing hearing the court
demonstrated a thorough knowledge of the relevant facts and
sentencing considerations.
Looking to Reynoso and Rojas’s personal characteristics,
the court saw little redeeming value. The court understood the
gravity of their criminal history, which in the case of Rojas did
14
include crimes of decreasing seriousness, and it had little hope
they would ever stop associating with the Mexican Mafia. In
assessing the nature and circumstances of their present felonies
and prior serious and/or violent felony convictions, however, the
court concluded the concededly limited involvement of Reynoso
and Rojas and their personal conduct in an ultimately nonviolent
extortion racket restricted to gang members did not warrant
subjecting them to 25-years-to-life sentences in prison. This
analysis was appropriate under section 1385. The California
Supreme Court has held in assessing the nature and
circumstances of the defendant’s present felonies, “a trial court’s
factual determinations with regard to the nature and
circumstances of a defendant’s triggering offense may play a
significant role in determining the sentence that is actually
imposed upon the defendant under the Three Strikes law.” (In re
Coley (2012) 55 Cal.4th 524, 560.) The California Supreme Court
has also authorized trial courts to consider as part of the nature
and circumstances of a defendant’s past and present convictions
information “suggesting that the offenses were mitigated either
in the manner of their commission (for example, an offense was
committed in a less serious or violent manner than would
normally be expected of such a crime) or in the level of
defendant’s participation (for example, defendant played a
subordinate role in the commission of the offense).” (People v.
Wallace (2004) 33 Cal.4th 738, 753–754 (Wallace).)
Ultimately, the court concluded that although the
defendants’ background, character, or prospects did not suggest
they fell outside the ambit of the Three Strikes law, their conduct
in the present case partially, though not completely, placed them
outside its spirit. It sentenced them accordingly, with considered
15
sentences reflecting their recidivism and gang membership: Both
Reynoso and Rojas were sentenced as second-strikers, doubling
the term they would otherwise have received; and the court chose
the high term enhancement on the gang allegation and imposed
multiple optional five-year sentence enhancements for their prior
serious felony convictions. While other courts might not in the
first instance have made the sentencing choices the trial court
made, we cannot say striking Reynoso and Rojas’s prior strikes
was “so irrational or arbitrary that no reasonable person could
agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)
The People argue the trial court improperly struck the
defendants’ strikes “because it believed a life sentence was not
appropriate for ‘nonviolent’ conduct.” Characterizing the court as
“impos[ing] its own additional requirements” to the Three Strikes
law, they argue the trial court struck the strikes out of hostility
to third strike sentencing and impermissibly reasoned backwards
to achieve its preferred sentence in violation of People v. Dent
(1995) 38 Cal.App.4th 1726, 1731 (Dent). To support this
argument, they rely primarily on two trial court comments.
First, the court said it could not “equate” life sentences for
murder and other violent crimes to a conspiracy to commit
extortion, even one committed for the benefit of a gang. Second,
after the trial court mentioned Reynoso’s manslaughter
conviction, it said that “in order to reach the sentence that I am
going to impose, which I believe is appropriate in this case, which
would be 23 years, I do need to strike that strike.”
The court’s comments must be understood in context.
Immediately before making the statements on which the People
rely, the court stated it had no antipathy toward third strike
cases and had imposed third strike sentences in the past. The
16
court then described the facts and circumstances of the present
offense: The defendants’ conduct was “very serious and
threatening” to the community, but at the same time, there were
no assaults; there was no violence; the “victims, quote, unquote,”
of the crime were gang members themselves; and there had never
been evidence any victim experienced fear of what would happen
if he or she did not pay Reynoso or Rojas. The court’s reference to
equating crimes, made in the course of describing the particular
attributes of this offense, appears in context not to be a
pronouncement that conspiracy to commit extortion could never
warrant a life sentence, as the People suggest, but an explanation
why this particular conspiracy to commit extortion, given its
characteristics, was mitigated in the manner of its commission,
justifying the court’s decision to strike some of the defendants’
strikes. (Wallace, supra, 33 Cal.4th at pp. 753–754.) “A court
might . . . be justified in striking prior conviction allegations with
respect to a relatively minor current felony, while considering
those prior convictions with respect to a serious or violent current
felony.” (People v. Garcia (1999) 20 Cal.4th 490, 499.)
Having discussed its reasons for striking some strikes, the
court then announced the sentence for each defendant
individually, identifying which specific strikes it intended to
strike and how it calculated each sentence. While the court’s
reference to needing to strike one of Reynoso’s strikes could be
interpreted as indicating an impermissible intent, it may also be
understood as an end-of-day shorthand combining the court’s
already-explained intent to strike some of Reynoso’s strikes with
a statement of its desire to impose a heavy sentence that took
into account his recidivism and his gang activity through second
strike sentencing, high terms for the offense and the gang
17
enhancement, and enhancements for his prior serious felonies.
We understand the court to have been saying this was the
sentence it believed appropriate for Reynoso based on the
considerations previously articulated; this was how the court
arrived at it; and this was the ruling to be made to effectuate it,
including identifying the strike it had selected to strike.5 This
interpretation is consistent with the court’s statement, made
shortly thereafter, identifying another of Reynoso’s strikes as one
it concluded “definitely should not be struck.” “In the absence of
a clear showing that its decision was arbitrary or irrational, a
trial court should be presumed to have acted to achieve
legitimate objectives and, accordingly, its discretionary
determinations ought not be set aside on review.” (People v.
Preyer (1985) 164 Cal.App.3d 568, 573–574.)
We disagree with the People that this case is akin to Dent,
supra, 38 Cal.App.4th at page 1731. In Dent, the trial court
failed to exercise its discretion: it disregarded the defendant’s
background and the nature of his offenses, imposing sentence not
on the basis of individualized consideration but in an express
effort to circumvent the Three Strikes law. (Ibid.) In contrast,
here the trial court extensively examined the defendants’
backgrounds, character, and prospects, the nature of their prior
offenses, and the details of their present offense and the current
case. It “focuse[d] on considerations that [we]re pertinent to the
specific defendant being sentenced.” (Ibid.)
5 The two-strike sentence selected by the court was only
available if the court struck two strikes; later, when imposing
sentence, the court struck two of Reynoso’s prior strikes.
18
The People argue comparing Reynoso and Rojas with the
previously-sentenced defendants was not appropriate because
Reynoso and Rojas, as third-strike defendants, were differently
situated, but the trial court’s comments indicate it was aware of,
and took into account, this distinction between Reynoso and
Rojas and the other defendants, as well as the conduct
underlying their strike convictions; and in recognition of this
difference it imposed longer sentences on Reynoso and Rojas than
the other defendants had received. The People also contend the
court should not have stricken strikes here because “it is
arguable,” though not established by authority, that the crime of
conspiracy to commit extortion with a gang allegation is
punishable with a life sentence, and because the Three Strikes
law previously has been reformed to limit the availability of third
strike sentences. These arguments illustrate the People’s
disagreement with the trial court’s reasoning but do not establish
any abuse of discretion. We may not substitute our judgment
for that of the trial court. (Carmony, supra, 33 Cal.4th at
pp. 376–377.)
II. Five-Year Sentence Enhancements
Reynoso and Rojas argue the trial court lacked authority to
impose five-year serious felony enhancements pursuant to section
667, subdivision (a)(1). We disagree.
Section 667, subdivision (a)(1) provides for the imposition of
a consecutive five-year sentence enhancement for any person
“convicted of a serious felony who previously has been convicted
of a serious felony.” Section 1192.7, subdivision (c), lists serious
felonies; although conspiracy to commit extortion is not among
the specifically enumerated felonies, the statute also provides
that “any felony offense, which would also constitute a felony
19
violation of Section 186.22” is a serious felony. (Id., subd. (c)(28).)
In People v. Briceno (2004) 34 Cal.4th 451, 459 (Briceno), the
California Supreme Court held “section 1192.7(c)(28) includes
within its ambit any felony offense committed for the benefit of a
criminal street gang under the section 186.22(b)(1) gang sentence
enhancement.” Because Reynoso and Rojas each admitted a gang
allegation under section 186.22, subdivision (b)(1), their
convictions for conspiracy to commit extortion qualified as serious
felonies for the purposes of section 667, subdivision (a)(1).
In Briceno, the court held that “while it is proper to define
any felony committed for the benefit of a criminal street gang as
a serious felony under section 1192.7[, subdivision] (c)(28), it is
improper to use the same gang-related conduct again to obtain an
additional five-year-sentence under section 186.22[, subdivision]
(b)(1)(B).” (Briceno, supra, 34 Cal.4th at p. 465.) The improper
bootstrapping and double punishment with which the Briceno
court was concerned did not occur here. The trial court did not
impose a serious felony sentence enhancement under
section 186.22, subdivision (b)(1)(B) in addition to deeming the
crime a serious felony. It deemed the crime a serious felony,
imposed the gang enhancement applicable to any felony, and
imposed two sentence enhancements under section 667,
subdivision (a) because the instant offense was a serious felony
and each defendant had prior serious felony convictions.
Reynoso and Rojas rely on Briceno to argue a gang
enhancement only allows an offense to be treated as a serious
felony in a future proceeding, not in the current proceeding. This
argument reads Briceno too broadly and was rejected in People v.
Bautista (2005) 125 Cal.App.4th 646, 656: “[W]hile Briceno does
make a distinction between current and former offenses
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enhanced by gang findings, the opinion holds only that a court is
not permitted to ‘bootstrap’ a current felony with a gang
enhancement into both a serious felony for purposes of section
667, subdivision (a) and a felony subject to the five-year
additional sentence prescribed by section 186.22, subdivision
(b)(1)(B).” The California Supreme Court has cited Bautista with
approval and has rejected arguments that “overstate[] the scope”
of the Briceno decision. (People v. Jones (2009) 47 Cal.4th 566,
573–574.) The trial court did not err when it imposed sentence
enhancements under section 667, subdivision (a)(1).
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
WILEY, J.
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