Filed 6/19/13 P. v. Diaz CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064787
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 11CM2175)
                   v.

ANGEL AYALA DIAZ,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
         Carol Foster, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen
A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Kane, J. and Poochigian, J.
       Defendant and appellant Angel Ayala Diaz contends the trial court abused its
discretion in failing to strike, for sentencing purposes, one of his prior convictions for a
serious or violent felony. He contends his two prior offenses arose from the same act.
That fact is not demonstrated by the present record. Accordingly, in affirming the
judgment against appellant, we are not required to, and do not, reach the legal theory
defendant asserts.
                       FACTS AND PROCEDURAL HISTORY
       Defendant testified he was in prison for other offenses and then was released on
parole. Shortly after his release, parole officers searched defendant’s house and
discovered a weapon (described in his brief as a short-barrel shotgun). Defendant was
arrested and jailed. Defendant pled to two strike felonies on March 9, 2011: “I didn’t
even know I was going to take two strikes until I found out my dad was dying. I threw
two strikes at them to let me go home to see my dad,” defendant testified in the present
case. He was released from custody and told to report for sentencing on April 8, 2011.
On that day, he was sentenced to an operative term of three years, four months, on the
two strikes, composed of the lower term (16 months) on count 1 (Pen. Code, § 12020,
subd. (a)(1)) together with a two year gang enhancement under Penal Code
section 186.22, subdivision (b)(1)(A), and a concurrent lower term of 16 months on
count 3 (Pen. Code, § 186.22, subd. (a)). Defendant was remanded to custody, where it
was determined that he had secreted three bindles in his rectum. Two of the bindles
contained marijuana and methamphetamine. Defendant was charged by information with
one count of bringing a controlled substance into a jail, a violation of Penal Code
section 4573. The information alleged two prior prison term enhancements (Pen. Code,
§ 667.5, subd. (b)) based on 2005 and 2007 convictions, a gang enhancement pursuant to
Penal Code section 186.22, subdivision (b)(1), and, most significantly for this appeal, two
strikes pursuant to Penal Code sections 667, subdivisions (b) through (i), and 1170.12,



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subdivisions (a) through (d). A jury found defendant guilty of the substantive charge and
found true the enhancement and special allegations.
       At the sentencing hearing in the present case, defense counsel asked the court to
exercise is discretion under Penal Code section 1385 to strike one of defendant’s strikes
for purposes of sentencing. (See People v. Superior Court (Romero) (1996) 13 Cal.4th
497, 529-530 (Romero).) Counsel stated: “[I]f I understand my client correctly, he
understands the history of that consecutive, although it’s legally two convictions, it’s
essentially one crime that led to” the two strikes. Counsel also contended as further
mitigation that defendant’s act of smuggling the contraband into prison was done in fear
of retaliation from gang members if he failed to comply with their smuggling directive.
The court denied the request to strike one of the strikes. The court found defendant had
been engaged in serious criminal activity since he was 12 years old, that he admitted the
“two strikes involving criminal street gangs, and before he could even make it to prison
for these offenses, he committed the instant offense of smuggling drugs into jail for the
benefit of a gang.” The court concluded its remarks, as follows: “Again, the Court
recognizes its discretion to strike the strike conviction; however, because of the
defendant’s prior violent criminal conduct and his reluctance to change his gang lifestyle
the Court will not be exercising its discretion.” The court sentenced defendant to a term
of 25 years to life, consecutive to three years on the gang enhancement and two years on
the prior prison term enhancements.
                                      DISCUSSION
       In exercising its discretion under Romero, supra, 13 Cal.4th at pages 529 through
530, the trial 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
[‘Three Strikes’] 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

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felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court clearly
considered the enumerated factors and reasonably concluded defendant could not be
deemed outside the “spirit” of the Three Strikes law. Defendant does not contend
otherwise.
       Defendant does contend, however, that there is a special instance in which the trial
court is compelled to exercise its discretion in favor of striking a strike for sentencing
purposes: because “both convictions arose out of the same criminal act, [defendant]
should have been sentenced as though he had only been previously convicted of one
serious felony.” He asserts this rule is mandated by People v. Burgos (2004) 117
Cal.App.4th 1209, although he recognizes that another court reached the opposite result
in People v. Scott (2009) 179 Cal.App.4th 920, 923. The analysis in Scott is significantly
more compelling than that in Burgos. In addition, we agree with Scott that Burgos does
not squarely hold (even though at one point it uses that language (see People v. Burgos,
supra, 117 Cal.App.4th at p. 1214)) that two convictions arising from the same criminal
act must result in only one strike for future sentencing purposes. (See People v. Scott,
supra, 179 Cal.App.4th at pp. 929-931.)
       In any event, we are not required in the present case to resolve the issue presented
in Burgos and Scott because the record does not establish that defendant’s strike
convictions for carrying a concealed weapon and active participation in a gang were
based on the same, single act. In particular, it is significant that the earlier sentencing
court did not stay the sentence on either count, as it would have been required to do if the
two crimes arose from the same act. (Pen. Code, § 654.) While defense counsel asserted
at sentencing in the present case that defendant told him the strikes were based on only
one crime, counsel did not take the further step of introducing the change of plea or
sentencing transcript from the earlier case, which could clearly have established whether
there was but one underlying crime. In the absence of a clear record, we decline to
speculate on the underlying criminal conduct that supported the two strike convictions.

                                              4.
Accordingly, even if the rule in People v. Burgos, supra, 117 Cal.App.4th at page 1214,
were the correct rule when two strikes arise from a single criminal act, defendant here has
not established the presence of facts that would support application of that rule to his
case.
                                      DISPOSITION
        The judgment is affirmed.




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