Filed 1/20/23 P. v. Vargasarellano CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

IVAN VARGASARELLANO,

Defendant and Appellant.

 H048062

 (Santa Clara County

 Super. Ct. No. C1481473)

Defendant Ivan Vargasarellano appeals following his resentencing, as ordered by 

this court in a prior nonpublished opinion, People v. Vargasarellano, (Nov. 25, 2019, 

H045538). 

On appeal, Vargasarellano argues that the minute order and abstract of judgment 

must be corrected to conform with the trial court’s oral pronouncement that all fines and 

fees are stayed until he is released from custody. The Attorney General concedes that 

argument, and we agree the concession is appropriate. 

In a supplemental brief,1 Vargasarellano argues that he is entitled to a new trial, 

with the gang evidence tried in bifurcated proceedings, pursuant to newly-enacted Penal 

1

In connection with his supplemental brief, Vargasarellano has requested that this 

court take judicial notice of excerpts of transcripts in the initial appeal from the judgment, 

People v. Vargas et al. (May 19, 2017, H041706 [nonpub. opn.]) (Vargas H041706). 

Specifically, Vargasarellano requests judicial notice of his pretrial motions in limine, the 

transcript of the hearing on those motions in limine, and the transcript of the gang expert 

witness’s direct examination at trial. The Attorney General did not oppose the request for 

(continued)
2

Code section 1109.2 He further contends that he is entitled to resentencing due to 

intervening legislative changes to section 654. The Attorney General does not agree that 

Vargasarellano is entitled to either a new trial or resentencing due to changes in the law. 

We agree with the Attorney General that Vargasarellano is not entitled to a new 

trial under newly-enacted section 1109. For the reasons explained below, we also agree 

with Vargasarellano that he is entitled to resentencing pursuant to the amended version of 

section 654, as it is not clear the trial court, in exercising its newly-granted discretion 

under that statute, would have imposed the same sentence. 

Accordingly, we will reverse the judgment and, on remand, direct the trial court to 

vacate the true findings on the gang enhancements (§ 186.22) charged in connection with 

counts 3 and 5 as well as the alternate penalty provision (§ 186.22, subd. (d)) charged in 

connection with count 6. The prosecutor may elect to retry the gang enhancement 

allegations and the alternate penalty provision. If the prosecutor elects not to proceed 

with a retrial, or at the conclusion of any such retrial, the trial court shall resentence 

Vargasarellano in accordance with current law and prepare a new minute order and 

abstract of judgment consistent with our instructions.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural background

In 2014, Vargasarellano was convicted by a jury of one count of burglary of an 

inhabited dwelling (§§ 459, 460, subd. (a); count 2), two counts of assault (§ 245, 

subd. (a)(4); counts 3, 5), and one count of misdemeanor vandalism (§ 594, subds. (a), 

(b)(2)(A); count 6). The jury also found true criminal street gang enhancements 

(§ 186.22, subd. (b)(1)(A), (C)) alleged in connection with the burglary (count 2) and 

judicial notice. We grant the request for judicial notice in its entirety. (Evid. Code, 

§§ 452, subd. (d), 459, subd. (a).)

2 Unspecified statutory references are to the Penal Code.
3

assault (counts 3, 5) charges. The trial court sentenced Vargasarellano to “a total term of 

16 years in prison, consisting of the middle term of eight years on count 2, plus a 

consecutive two-year term on count 5, along with the five year enhancement under 

Proposition 8 (§ 667.5, subd. (a)) and a one-year prison prior enhancement. The court 

further imposed, but stayed a middle term of six years on count 3 pursuant to section 654.

The court imposed a middle term of four years, to run concurrent, on count 6. The 10 

year gang enhancements were stricken.” (Vargas H041706, supra, at p. 6.)

On November 25, 2019, this court vacated the judgment and remanded the case 

for resentencing to allow the trial court to consider striking a serious felony conviction or 

a prison prior under amended statutes. (People v. Vargasarellano (Nov. 25, 2019, 

H045538) [nonpub. opn.] (Vargasarellano).)3 We also invited Vargasarellano to request 

a hearing on his ability to pay the fines and fees. (Ibid.) 

At resentencing, the trial court struck the one year prison prior imposed under 

section 667.5, subdivision (b) due to the redesignation of that prior conviction from a 

felony to a misdemeanor.4 The court reimposed an eight year term on Vargasarellano’s 

first degree burglary conviction (§§ 459, 460; count 2), consisting of the middle term of 

3 That appeal arose from Vargasarellano’s resentencing following this court’s 

2017 nonpublished decision in People v. Vargas et al. (May 19, 2017, H041706), in 

which Vargasarellano sought to redesignate a prior conviction for receipt of stolen 

property as a misdemeanor pursuant to section 1170.18, subdivision (k). (Vargas

H041706, supra, at p. 18.) In that opinion, we also directed the trial court to strike a 

prison prior enhancement and stay the sentence on one of Vargasarellano’s two assault 

convictions (§ 245, subd. (a)(4)) under former section 654. (Vargas H041706, supra, at 

p. 18.) On our own motion, we take judicial notice of our prior opinions in Vargas and 

Vargasarellano. (Evid. Code, §§ 452, 459.)

4 The redesignation was the result of Vargasarellano’s petition for writ of habeas 

corpus alleging that his trial counsel was ineffective for failing to file a renewed petition 

seeking such redesignation under section 1170.18. (In re Vargasarellano (Nov. 25, 2019, 

H047012) [nonpub. ord.].) After this court issued an order to show cause, the trial court 

granted the relief sought and Vargasarellano withdrew his habeas petition. 
4

four years, doubled due to a prior strike (§ 1170.12). Consistent with our prior opinion, 

the trial court stayed the middle term sentence on both of Vargasarellano’s assault 

convictions (§ 245; counts 3, 5), pursuant to section 654. The court reimposed a 

concurrent four year term on the felony5 vandalism conviction (§ 594; count 6.)

Consistent with its original sentencing, the court struck the gang enhancements (§ 186.22, 

subd. (b)(1)(a)) associated with the assault charges (§ 245; counts 3, 5). Due to 

Vargasarellano’s demonstrated efforts at rehabilitation, the trial court exercised its 

discretion and struck the five year prior serious felony enhancement (§ 667, subd. (a)). 

The trial court also noted that it was striking this enhancement because it was relying on 

the same prior serious felony conviction to double the punishment imposed on count 2. 

Vargasarellano’s aggregate sentence was eight years. 

With respect to fines and fees, the court imposed a restitution fine of $4,000 

(§ 1202.4, subd. (b)), a $4,000 parole revocation fine (suspended) (§ 1202.45), a $41 

crime prevention fine (including penalty assessments (§ 1202.5)), a $60 criminal 

conviction assessment (Gov. Code, § 70373), and a court security fee of $80 (§ 1465.8). 

The court reimposed victim restitution (§ 1202.4, subd. (f)) in the amount of $3,782, with 

joint and several liability to Vargasarellano’s codefendants. The court emphasized that it 

was staying all fines and fees until Vargasarellano’s release from prison.6

During the pendency of the instant appeal, Vargasarellano asked that the trial court 

amend the sentencing minute order and abstract of judgment. Because the minute order 

used the singular “FINE” rather than the plural “FINES” and did not specify which 

“FINE” was stayed, the California Department of Corrections and Rehabilitation (CDCR)

5 At Vargasarellano’s original sentencing, the court elevated this offense from a 

misdemeanor pursuant to section 186.22, subdivision (d). 

6 The trial court expressly noted Vargasarellano’s obligation to pay direct victim 

restitution was not stayed. 
5

would not stay any of the fines and fees imposed.7In response, the superior court clerk 

prepared an amended minute order, drawing an arrow between the words “Fine/Fees” to 

the word “STAYED.” The trial court also prepared a signed order stating, “The 

03/06/2020 minute order to be amended to show: Fines/Fees stayed until release from 

CDCR.” However, the preprinted minute order form itself continued to state “Fine/Fees” 

rather than “Fines/Fees” and the abstract of judgment was not amended. 

When defense counsel contacted the trial court, she was advised that the 

preprinted language was standard, but the courtroom clerk supervisor would contact the 

judge about the issue. The trial court took no action to amend the minute order and 

abstract of judgment.

B. Factual background8

The two victims, Liliana Grajeda and Alejandro Montes, were in their upstairs 

apartment when they saw a juvenile, associated with Vargasarellano and his codefendant, 

Martinez, steal a box of strawberries from a vendor’s cart. (Vargas H041706, supra, at 

pp. 3-4.) Montes went out and confronted Vargasarellano and the others, telling them 

they should pay the vendor for the berries, but Vargasarellano responded that it was none 

of Montes’s business. (Id. at p. 4.) 

Grajeda indicated that she was going to call the police, and Martinez yelled back 

that Grajeda should go ahead because the police would “take [her family]” instead since 

they were “wetbacks.” (Vargas H041706, supra, at p. 4.) Martinez then shouted 

obscenities at Montes, poured beer on him, and hit him on the head with the beer can 

7 Similarly, the abstract of judgment provides: “Fine stayed until release from 

CDCR.” 

8 A more detailed summary of the evidence introduced at Vargasarellano’s trial is 

found in this court’s opinion in Vargas, supra, (May 19, 2017, H041706 [nonpub. opn.]). 

We provide a brief summary of the facts, which we derive from our prior opinion.
6

several times. (Id. at pp. 4-5.) Four other people surrounded Montes, and Vargasarellano 

took off his shirt, challenging Montes to fight. (Id. at p. 5.) 

When Martinez dared Montes to hit her, Grajeda called out that Montes would not 

hit a woman and said Martinez should come up and fight her instead. (Vargas H041706, 

supra, at p. 5.) Martinez ran upstairs and attacked Grajeda in her apartment, punching 

her in the head several times, breaking her nose and drawing blood.9(Id. at pp. 5, 6.)

Shantinee10 and another person tried to pull Martinez off of Grajeda, breaking a small 

window in the struggle. (Id. at pp. 5, 6.) Montes and his nephew also ran up to the 

apartment, followed closely by Vargasarellano and two other men. (Ibid.) Montes tried 

to close the door behind him, but Vargasarellano and the others pushed their way in and 

attacked Montes. (Ibid.) Vargasarellano’s brother broke a larger window in the 

apartment, showering Martinez and Grajeda with broken glass. (Id. at p. 6.)

After the fight ended, Vargasarellano’s brother told the victims, “this is what 

happens when you mess with us” and “Norte,” which Grajeda’s daughter knew referred 

to Norteño gangs. (Vargas H041706, supra, at p. 5.) 

A neighbor testified for the defense, saying she heard Shantinee scream, “They’re 

stabbing me,” followed by Vargasarellano saying he had to get Shantinee out of the 

apartment.11 (Vargas H041706, supra, at p. 7.) When Shantinee exited the apartment, 

the neighbor could see her arm was bleeding. (Ibid.) The neighbor did not see 

Vargasarellano strike anyone, break any windows, or kick the victims’ door. (Ibid.)

9 Grajeda underwent surgery for her broken nose. (Vargas H041706, supra, at 

p. 6.)

10 Shantinee was Vargasarellano’s girlfriend.

11 Montes’s nephew, who was in the apartment during the assault, testified that 

Shantinee did not call out that she was being stabbed. (Vargas H041706, supra, at p. 14.)
7

II. DISCUSSION

A. The minute order and abstract of judgment must be corrected

Vargasarellano argues, and the Attorney General concedes, that the minute order 

and abstract of judgment must be corrected to reflect the trial court’s oral pronouncement 

that all fines and fees, with the exception of the victim restitution fine, are stayed until 

Vargasarellano is released from prison. We agree that the concession is well taken.

It is well established that “ ‘ “[r]endition of judgment is an oral pronouncement.” ’ 

[Citation.] When there is a discrepancy between the oral pronouncement of judgment 

and the minute order, the oral pronouncement controls.” (People v. Morales (2014) 224 

Cal.App.4th 1587, 1594.)

Here, the trial court was clear in stating that all fines and fees imposed, except for 

victim restitution, were to be stayed while Vargasarellano was in prison. We will 

therefore direct the trial court to amend the minute order and abstract of judgment 

accordingly. 

B. Vargasarellano was not prejudiced by failure to bifurcate the gang 

enhancements

Effective January 1, 2022, Assembly Bill No. 333 (2021-2022 Reg. Sess.) 

amended section 186.22 (Stats. 2021, ch. 699, § 4) and added section 1109 (Stats. 2021, 

ch. 699, § 5) to the Penal Code. Section 1109, subdivision (a) provides that, upon 

request by the defense, a gang enhancement charged under subdivision (b) or (d) of 

section 186.22 shall be tried separately after determination of the defendant’s guilt 

of the underlying charge. Section 1109, subdivision (b) provides that a violation of 

section 186.22, subdivision (a) shall be tried separately from all other charges that do not 

require gang evidence as an element of the offense. 

In supplemental briefing, Vargasarellano argues that the bifurcation requirement 

created by section 1109 applies retroactively to his conviction, which is not yet final. He 

further argues that the failure to bifurcate requires that we reverse the entire judgment and 
8

remand for a new bifurcated proceeding because the introduction of the unduly 

prejudicial and inflammatory gang evidence deprived him of a fair trial. The Attorney 

General disagrees on both points. 

As our Supreme Court has recently noted, case law is split on the question of 

whether section 1109 applies retroactively to convictions that are not yet final. (People v. 

Tran (2022) 13 Cal.5th 1169, 1208.) Although the Supreme Court declined to resolve 

that split in authority (Tran, supra, at p. 1208),

12 it held that, absent a showing that the 

failure to bifurcate rendered the original trial fundamentally unfair, the matter will be 

reviewed for harmless error under Watson.

13

 (Tran, supra, at p. 1209.) As we will 

explain, we take the same approach here. Assuming without deciding that section 1109 

applies retroactively, any asserted failure to bifurcate the trial of the gang allegations was 

harmless as to Vargasarellano’s guilty verdicts. 

First, the evidence of Vargasarellano’s guilt on the underlying charges of burglary, 

assault, and vandalism included detailed testimony about the offenses from the victims. 

Grajeda testified that, after she and Montes observed Vargasarellano’s companion steal a 

box of strawberries, Montes went down and confronted the group. (Vargas H041706, 

supra, at pp. 3-4.) She testified that, after challenging Martinez, Martinez ran upstairs to 

Grajeda’s apartment and began to assault her. (Id. at p. 5.) Montes testified that, after 

Martinez struck him on the head with a beer can, she ran upstairs to attack Grajeda. (Id. 

at p. 6.) Montes also ran upstairs, with Vargasarellano right behind him. (Id. at pp. 5-6.) 

Montes further testified that when he tried to close the door behind him, Vargasarellano 

and another man shoved the door open and attacked him. (Ibid.) In the course of the 

struggle, the attackers broke two windows in the apartment. (Ibid.) In such 

12 The question of whether section 1109 applies retroactively is currently under 

review by the California Supreme Court in People v. Burgos (2022) 77 Cal.App.5th 550, 

review granted July 13, 2022, S274743.

13 People v. Watson (1956) 46 Cal.2d 818, 836.
9

circumstances, “it is unlikely the defendant was harmed by the format of the trial.” 

(People v. E.H. (2022) 75 Cal.App.5th 467, 480 (E.H.), citing People v. Pinholster 

(1992) 1 Cal.4th 865, 931, overruled on other grounds in People v. Williams (2010) 49 

Cal.4th 405, 459 [failure to bifurcate was harmless because of overwhelming evidence of 

defendant’s guilt on relevant charges].) 

Second, section 1109 does not necessarily preclude gang-related evidence in a 

bifurcated trial if the evidence relates to the underlying charges. (People v. Ramos (2022) 

77 Cal.App.5th 1116, 1132.) Here, as in Ramos, much of the gang-related evidence was 

relevant to Vargasarellano’s actions prior to the assault, and his motive for his actions, 

i.e., assisting his fellow gang members. (Ibid.; see also People v. Hernandez (2004) 33 

Cal.4th 1040, 1049-1050 [“To the extent the evidence supporting the gang enhancement 

would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and 

bifurcation would not be necessary.”].) For example, after the incident was over, but 

before police arrived, one of the attackers (Vargasarellano’s brother) confronted the 

victims, saying “ ‘this is what happens when you mess with us’ ” and “ ‘Norte.’ ” 

(Vargas H041706, supra, at p. 5.) 

Even assuming section 1109 is retroactively applicable in this case, applying the 

Watson standard, we conclude that it is not reasonably probable that the outcome of the 

trial on the underlying charges would have been different in the absence of any gang 

evidence that would not have been otherwise admissible. Consequently, the failure to 

bifurcate the trial of the gang allegations was not prejudicial error and there is no basis 

for reversing Vargasarellano’s convictions. 

C. Reversal of gang enhancements and alternate penalty

Alternatively, in his original supplemental brief, Vargasarellano claims he is 

entitled to reversal and retrial of the gang enhancements that were based in part on 

evidence showing the alleged benefit to the gang in committing the offenses was 

reputational in nature. The Attorney General counters that this argument is moot because 
10

the trial court, at both the original sentencing hearing and the resentencing hearing, struck 

the gang enhancements.14 We agree with Vargasarellano that the gang enhancements, as 

well as the alternate penalty imposed on count 6, must be reversed. 

Section 186.22, subdivision (g), as amended by Assembly Bill No. 333, now 

provides: “As used in this chapter, to benefit, promote, further, or assist means to 

provide a common benefit to members of a gang where the common benefit is more than 

reputational. Examples of a common benefit that are more than reputational may include, 

but are not limited to, financial gain or motivation, retaliation, targeting a perceived or 

actual gang rival, or intimidation or silencing of a potential current or previous witness or 

informant.” As explained in E.H., supra, 75 Cal.App.5th 467, the amendment to section 

186.22, subdivision (g) “essentially adds new elements to the . . . enhancements in 

section 186.22” and therefore “the prejudice standard articulated in Chapman v. 

California (1967) 386 U.S. 18, 24 applies.” (E.H., supra, at p. 479.) As the jury was not 

(and could not have been) instructed pursuant to the amended version of section 186.22, 

any verdict on the gang enhancements must be reversed “unless ‘it appears beyond a 

reasonable doubt that the error did not contribute to th[e] jury’s verdict.’ ” (E.H., supra, 

at p. 479.)

The same logic would apply to the alternate penalty imposed on Vargasarellano on 

count 6. “[S]ection 186.22[, subdivision] (d) prescribes an alternate penalty when the 

14 Although Vargasarellano agreed with the Attorney General in his reply that his 

claim as to the gang enhancements alleged in connection with counts 3 and 5 was moot, 

he withdrew that concession at oral argument. He maintains that the gang enhancement 

alleged in connection with count 6 (§ 186.22, subd. (d)), on which the trial court relied to 

elevate his conviction from a misdemeanor to a felony, must be reversed and retried. At 

oral argument, the Attorney General pointed out that section 186.22, subdivision (d) is an 

alternate penalty provision, not an enhancement, citing Robert L. v. Superior Court

(2003) 30 Cal.4th 894, 900 (Robert L.). As discussed below, we disagree that the claim 

is moot with respect to either of the gang enhancements alleged in counts 3 and 5 or the 

alternate penalty provision alleged in count 6.
11

underlying offense is committed under specified circumstances; here, for the benefit of, at 

the direction of, or in association with, a criminal street gang.” (Robert L., supra, 30 

Cal.4th at p. 900.) The alternate sentence prescribed by section 186.22, subdivision (d) 

may only be imposed however “when it is proven that the underlying offense has been 

committed for the benefit of, or in association with, a criminal street gang.” (Robert L., 

supra, at p. 899, italics added.) Because the standard for proving that a particular offense 

has been committed for the benefit of a criminal street gang has changed, by virtue of the 

amendments to section 186.22, subdivision (g), it stands to reason that any sentencing 

decision reliant on the former version of that statute, whether it be an enhancement or 

alternate penalty, is no longer valid. 

At trial, the prosecution presented gang expert testimony to show that one of the 

motivating factors for Vargasarellano and Martinez committing the burglary and assault 

was to bolster the reputation of their gang, by instilling fear in their community and 

demonstrating what happens to members of the public who try to stand up to them. 

Although there was evidence of benefits to Vargasarellano’s gang that was more than 

reputational, such as an effort to intimidate or silence the witnesses in this case, “we 

cannot rule out the possibility that the jury relied on reputational benefit to the gang as its 

basis for finding the enhancements true.” (People v. Sek (2022) 74 Cal.App.5th 657, 

669.) On this record, we cannot presume that a jury would have found true the gang 

enhancement allegations in counts 3 and 5 or that Vargasarellano committed the 

vandalism for the benefit of a criminal street gang as alleged in count 6 absent evidence 

of this reputational benefit. (Ibid.; E.H., supra, 75 Cal.App.5th at p. 480.)

The fact that the trial court has twice now struck the punishment associated with 

the gang enhancements in counts 3 and 5 does not render this issue moot. Striking an 

enhancement’s punishment is not the same as striking the enhancement itself and “an 

enhancement finding could impact defendant in a future case.” (People v. Fuentes (2016) 

1 Cal.5th 218, 225.) “Enhancements do not have a life of their own. They derive their 
12

vitality from and form a part of the crime to which they are attached and alter the 

consequences the offender may suffer. The most direct consequence is additional 

punishment. But there are other consequences[.] . . . Striking an aspect of an 

enhancement does not ‘operate to defeat the factual finding of the truth of the 

[allegation], instead, such act merely serves to prohibit a certain purpose for which the 

[allegation] may be used.’ ” (In re Pacheco (2007) 155 Cal.App.4th 1439, 1445.)

Accordingly, we will reverse the findings on the gang enhancement allegations as 

well as the finding that Vargasarellano committed vandalism for the benefit of a criminal 

street gang. On remand, the prosecutor may elect to retry those allegations or request that 

the trial court strike them.

D. Vargasarellano is entitled to resentencing under amended section 654 

Finally, Vargasarellano contendsthat the matter must be remanded for 

resentencing so that the trial court may exercise its discretion under recently amended 

section 654 and sentence him under count 5, instead of count 2. The Attorney General 

argues that remand would be an idle act as Vargasarellano’s original sentence of 16 years

was first reduced to 14 years (resentencing following Vargas, supra, (May 19, 2017, 

H041706 [nonpub. opn.]) and then, on March 6, 2020, reduced further to eight years 

(resentencing following Vargasarellano, supra, (Nov. 25, 2019, H045538 [nonpub. 

opn.]). In the most recent resentencing, the trial court exercised its discretion under 

amendments to sections 667, subdivision (a) and 1385, subdivision (b) and struck the 

five-year serious felony enhancement.

We agree with Vargasarellano that he is entitled to resentencing so that the trial 

court can exercise its discretion under section 654, as amended. 

Section 654 prohibits multiple punishment for a single act or omission. (See 

People v. Delgado (2017) 2 Cal.5th 544, 570.) At the time of Vargasarellano’s 

resentencing, section 654 required the trial court to punish a defendant “under the 
13

provision that provide[d] for the longest potential term of imprisonment.” (§ 654, former 

subd. (a).) 

Effective January 1, 2022, section 654 was amended by Assembly Bill No. 518 to 

give the trial court discretion to select the provision under which a defendant would be 

punished. As relevant here, section 654 now provides, “An act or omission that is 

punishable in different ways by different provisions of law may be punished under either 

of such provisions, but in no case shall the act or omission be punished under more than 

one provision.” (§ 654, subd. (a), italics added.) 

The amendment of section 654 was an ameliorative change to the law as trial 

courts are no longer required to impose a sentence under the provision that provides for 

the longest term of imprisonment when a defendant is convicted of multiple crimes for a 

single act or omission. Thus, as the parties agree, Vargasarellano is entitled to the 

retroactive application of amended section 654 because there is no indication that the 

Legislature intended the law to apply prospectively only, and this case is not yet final on 

appeal. (See, e.g., People v. Mani (2022) 74 Cal.App.5th 343, 379-380; People v. Sek, 

supra, 74 Cal.App.5th at pp. 673-674; People v. Mendoza (2022) 74 Cal.App.5th 843, 

861-862.) 

A “remand [for resentencing] is required unless the record shows that the trial 

court clearly indicated when it originally sentenced the defendant that it would not in any 

event have stricken a[n] . . . enhancement.” (People v. McDaniels (2018) 22 Cal.App.5th 

420, 425.) The salient question is whether the trial court “express[ed] its intent to impose 

the maximum sentence permitted.” (Id. at p. 427.) “When such an expression is 

reflected in the appellate record, a remand would be an idle act because the record 

contains a clear indication that the court will not exercise its discretion in the defendant’s 

favor.” (Ibid.) Without a clear indication of the trial court’s intent, remand is required.

(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) Therefore, we must 
14

review the record to determine whether remand is required or if it “would be an idle act.” 

(People v. Flores (2020) 9 Cal.5th 371, 432.)

In this case, the record does not “ ‘clearly indicate[]’ ” whether the trial court 

would have decided to impose the longer sentence on count 2 and stay the shorter 

sentence on counts 3 or 5 had it the discretion to do so. (Gutierrez, supra, 58 Cal.4th at 

p. 1391.) The trial court resentenced Vargasarellano to the middle term of four years 

(doubled to eight years due to a strike prior) on the burglary conviction (§§ 459, 460;

count 2). However, this was the only possible outcome at the time since former section 

654 prohibited the trial court from sentencing Vargasarellano on the assaults on Grajeda 

or Montes (§ 245, subd. (a)(4); counts 3, 5), both of which arose from the same course of 

conduct but carried a lesser term. The trial court made no indication that it intended to 

impose the maximum possible sentence on Vargasarellano or that it would not impose a 

lesser sentence had it the power to do so. Section 654 as amended now permits the court 

to impose a lesser term and stay a longer one. 

On this record, we determine that remand is necessary so that the trial court can 

exercise its sentencing discretion under section 654, as amended. We express no opinion 

on how the trial court should exercise its discretion.

III. DISPOSITION

The judgment is reversed. The trial court is directed to vacate the true findings on 

the gang enhancements (Pen. Code, § 186.22) charged in connection with counts 3 and 5

and the alternate penalty provision (Pen. Code, § 186.22, subd. (d)) charged in connection 

with count 6. The matter is remanded to the trial court for a possible retrial of the gang 

enhancement allegations and alternate penalty provision. If the prosecutor elects not to 

proceed with a retrial, or at the conclusion of the retrial, the trial court shall resentence 

defendant, including by applying amended Penal Code section 654. The trial court is also 

instructed to ensure that the minute order and abstract of judgment prepared in 
15

connection with resentencing accurately reflect its intention to stay all fines and fees with 

the exception of victim restitution (Pen. Code, § 1202.4, subd. (f).) 
___________________________________

Wilson, J.

WE CONCUR:

______________________________________

 Bamattre-Manoukian, Acting P.J.

______________________________________

Danner, J.

People v. Vargasarellano

H048062