1 Filed 9/5/13 P. v. Guzman CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JAIRO FIDEL GUZMAN, Defendant and Appellant. E050850 (Super.Ct.No. RIF143965) OPINION

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed in part as modified; reversed in part. Dacia A. Burz, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Felicity Senoski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.2 A jury convicted defendant Jairo Fidel Gu zman of vehicle burglary (count 1—Pen. Code, § 459), 1 receiving stolen property (count 2—§ 496, subd. (a)), felon in possession of a firearm (count 4—§ 12021, subd. (a)(1)), a nd active participation in a criminal street gang (count 6—§ 186.22, subd. (a)). The trial court found true allegations that defendant had suffered two prior strike convictions. (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(2)(A).) Prior to sentencing, the court denied defendant’s Romero 2 motion to strike his prior strike convictions. The court sentenced defendant to an aggregate term of 75 years to life consisting of the followi ng: 25 years to life on count 1; 25 years to life on count 2, stayed pursuant to section 654; a cons ecutive 25 years to life on count 4; and a consecutive 25 years to life on count 6. On appeal, defendant raises three argumen ts: (1) insufficient evidence supports defendant’s conviction for activ e participation in a criminal street gang because the People failed to adduce evid ence defendant promoted, furthe red, or assisted felonious conduct by members of his gang; (2) the court erred in neglec ting to stay the sentence on count 4 pursuant to section 654; and (3) the court erred in denying defendant’s Romero motion because it failed to consider any ad missible evidence of the circumstances of defendant’s prior strike convic tion behavior that, he assert s, constituted one course of indivisible conduct. We agree that the court erred in neglecting to stay the sentence on count 4; we, therefore, modify defendant’s sent ence to reflect the se ntence on count 4 is

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497 ( Romero ).3 stayed. In light of the California Supreme Court’s decision in People v. Rodriguez (2012) 55 Cal.4th 1125 ( Rodriguez ), we reverse defendant’s convic tion on count 6. In all other respects, we affirm the judgment. FACTUAL AND PROC EDURAL HISTORY On May 18, 2008, between 7:00 and 7: 20 a.m., Lauree sat outside her home, which abuts the trail access to Mount Rubidoux in the City of Riverside. She heard a vehicle with a very loud diesel engine coming up the street. From her yard she could see the vehicle was a large, white, full-sized tr uck with a black construction rack and a broken taillight. She saw the vehicle drive up her street, then hear d it turn around and drive back the way it came. She identified de fendant as the driver of the truck. Lauree then heard, in succession, the ve hicle park, its door open, the sound of shattering glass, an automobile alarm go off, th e vehicle start back up, and drive off. She saw the vehicle again as it drove away. Laur ee called the police; she then went out her door where she saw a green van with a brok en window. At trial, Lauree identified pictures of defendant’s father’s vehicl e as the truck she saw on May 18. Jolanda testified she had parked her van near Mount Rubi doux, rolled up her windows, locked her doors, and left for he r daily walk. When sh e returned from her walk, her van had been broken into; one of her windows was broken and her purse had been stolen. On May 22, 2008, between 12:00 and 12:30 p.m., Jeff was in his driveway; he saw a white truck with a loud diesel motor and a black construction rack driving up the street. Jeff wrote down the truck’s license plate number. Defendant was the driver of the4 vehicle. Jeff called the police and provided them with a description of the vehicle and the license plate number. Riverside Police Detective Kevin Townse nd, was assigned to investigate the May 18, 2008, vehicle burglary. He spoke with both Jeff and Lauree; the former gave him the license plate number of the truck. Det ective Townsend accessed a DMV database; it revealed that “Fidel Guzman,” residing at an address in the City of Riverside, was the registered owner of the vehicle. Fidel Guzman was defendant’s father. Detective Townsend monitored the residence over the next four or five days. On May 27, 2009, he witnessed defendant driving the truck. De tective Townsend called for a marked police vehicle and together they conducte d a traffic stop of defendant. Detective Townsend then re turned to the residence to conduct a search with other officers. In one room he found pictures of defendant; men’s clothing; mail in defendant’s name; East Side Riva (ESR) gang graffiti, includi ng defendant’s gang moniker “Frost”; a civil gang injunction with defendant’s name on it; gang tattoo stencils; and a loaded .38- caliber revolver. The handgun’s serial number had been secreted under paint. Detective Townsend also found Jolanda’s pu rse in the trashcan in the driveway outside defendant’s house; the purse still contai ned a number of Jolanda’s cr edit cards. Additionally, Detective Townsend noticed a mo torcycle in the backyard; he took a picture of its VIN. When Detective Townsend ente red the VIN number it into a database it came back as stolen. Riverside Police Officer Aurelio Mele ndrez assisted Detective Townsend in the search of the residence. In the same r oom, Officer Melendrez also found mail with defendant’s name on it, photographs of defend ant, a newspaper article regarding a gang5 injunction against ESR that was marked with numerous items of gang graffiti, and a marking for the number “13,” an insigni a used by the Mexican Mafia. The People charged defendant by info rmation with vehicle burglary (count 1— § 459), receiving stolen property (the purse) (count 2—§ 496, subd. (a)), receiving stolen property (the motorcycle) (count 3—§ 496, subd. (d)), felon in possession of a firearm (count 4—§ 12021, subd. (a)(1)) with an atta ched gang enhancemen t (§ 186.22, subd. (b)), obliteration of the firearm’s serial number (count 5—§ 12090), and active participation in a criminal street gang (coun t 6—§ 186.22, subd. (a)). Prior to trial, defendant moved pursuant to section 995 to strike count 5 and the gang enhancement attached to count 4. Th e court granted the motion. At trial, Detective Brian Smith of the Riverside Police Department’s gang intelligence unit testified as the People’s expert gang witness. Defe ndant’s residence was in ESR territory. Defendant’s first contact with the gang task forc e was in April 2001, when defendant was photographed with 23 ESR members throwing ESR hand signs. Defendant was contacted in June 2004, in re lation to a robbery committed by three ESR members. Defendant admitte d being a member of “Clique Los Primos” (CLPS), a subgroup of ESR, and that his gang moniker was “Frost.” In August 2006, defendant registered with law enforcem ent as a member of ESR. He again admitted being a member of CLPS, with the moniker “Frost.” There were no tattoos noted on defendant at that time. In February 2005, defend ant pled guilty to the crime of assault with a deadly weapon while causing great bodi ly injury; he admitted that the offense was committed for the benefit of or in association with ESR; he also admitted6 being an active participant in ESR. Defendant again register ed as a member of CLPS on January 15, 2008, with the moni ker “Frost.” At that time, defendant was noted to have tattoos reading “CLPS” and “ESR” on his chest, “‘Park,’” and “‘Avenue’” on his triceps. “Park Avenue” is another subset of ESR. Papers found in defend ant’s room after the search of his residence contained numerous ESR gang-related gra ffiti. Defendant was one of the original 114 peopl e listed on the civil gang injunction entered against ESR. Since his incarceration, defendant had received a list of rules endorsed by the Mexican Mafia, which were only dispersed to active gang members. Detective Smith opined that defendant was an active memb er of ESR in May 2008. After the People rested, defendant moved to dismiss all counts pursuant to section 1118.1. The trial court granted defendant’s mo tion as to count 3, but denied it as to the remaining counts. DISCUSSION
A. INSUFFICIENCY OF THE EV IDENCE TO SUPPORT CONVICTION FOR THE SUBSTANTIVE GANG OFFENSE IN COUNT 6 We rendered our initial opini on in this matter on Januar y 4, 2012. On May 15, 2013, the parties filed a stipulation to re call the remittitur in view of the California Supreme Court’s denial of defendant’s petiti on for review on March 21, 2012, “without prejudice to any relief to which defendant may be entitled after this court decides People v. Rodriguez , S187680.” The California Supreme Court rendered its decision in Rodriguez on December 27, 2012. On June 25, 2 013, we issued an order recalling the remittitur, vacating our original opinion, and reinstating the appeal for the limited7 purpose of issuing a new opinion on the issu e of the sufficiency of the evidence of defendant’s conviction for activ e participation in a criminal street gang in light of Rodriguez

. Defendant contended that in order for a defendant to be convicted of active participation in a criminal street gang, th e People must prove the defendant committed a separate felony offense with other members of his gang . In other words, although defendant may be the primary perpetrator of the offense, unless it is committed with other members of his gang, a conviction for active par ticipation in a criminal street gang cannot be sustained. Thus, because the People faile d to adduce any evidence that defendant committed any of the un derlying offenses with members of his gang, his conviction on count 6 must be reversed. The People orig inally argued, to the contrary, that any felonious conduct committed by an active gang member constitutes active participation in a criminal street gang, regardless of whether other gang members participate in the underlying crimes. In our original opinion, we held th at the primary perpetrator of a crime may be found criminally liable for active participation in a criminal street gang whether or not he is accompanied by fello w gang members during the commission of the underlying offenses. “‘In reviewing a challenge to the sufficien cy of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it disclo ses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasona ble doubt.” [Citations.] We presume in support of the8 judgment the existence of ever y fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence a nd to special circumstance allegations. [Citation.] “[I]f the circumst ances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Cita tion.] We do not reweigh evidence or reevaluate a witness’s cr edibility.’ [Citation.]” ( People v. Houston (2012) 54 Cal.4th 1186, 1215.) Section 186.22, subdivision (a) reads: “Any person who activel y participates in any criminal street gang with knowledge that its members enga ge in or have engaged in a pattern of criminal gang activity, and who will fully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . .” In Rodriguez , supra , 55 Cal.4th 1125, the California Supreme Court he ld that “section 186.22(a) reflects the Legislature’s carefully structured endeavor to punish active participants for commission of criminal acts done collectively with gang members.” ( Id . at p. 1139.) Thus, the court concluded that a gang member who commits an offense alone, whether gang related or not, is not in violation of se ction 186.22, subdivision (a). ( Ibid .) Here, there was no evidence defendant co mmitted any of his offenses collectively with any other gang member. Thus, Rodriguez compels the reversal of defendant’s conviction for active gang par ticipation in count 2.9 B. SECTION 654 Defendant contends his sentence for activ e participation in a criminal street gang should be stayed beca use the underlying felonies supporting the conviction are the same felonies that constituted the other counts in this case. (§ 654.) We agree. Section 654, subdivision (a), provides: “A n act or omission that is punishable in different ways by different prov isions of law shall be punish ed under the provision that provides for the longest potential term of impr isonment, but in no case shall the act or omission be punished under more than one provision.” Our Supreme Court has “broadly” construed section 654. ( People v. Rodriguez (2009) 47 Cal.4th 501, 507.) Our high court has concluded section 654 applies “not only where there was but one ‘act’ in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether [the course of conduct] comprised a divisible transaction which could be punished under more than one statut e within the meaning of section 654.” [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act w ithin the meaning of sec tion 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” ( Rodriguez , at p. 507

. ) A trial court’s finding that se ction 654 is appl icable will be upheld on appeal if it is supp orted by substantial evidence. ( People v. Tarris (2009) 180 Cal.App.4th 612, 626 [Fou rth Dist., Div. Two].)10 The “course of conduct” in the instant ca se is defendant’s bur glary of Jolanda’s vehicle and/or defendant’s possession of a firearm. 3 Defendant’s conviction for count 1 accounted for the burglary of Jolanda’s vehicle. Defe ndant’s conviction on count 2 addressed the possession of Jola nda’s stolen purse. Defendant’s conviction for count 4 accounted for his prohibited possession of a firear m due to his status as a felon. Based upon these convictions, defendant’s “course of conduct” has already been divided into two individual acts. There is not a third act in the course of condu ct for us to analyze whether defendant harbored a separate or simultaneous intent. Rather, the active participation offense is based on the same ac ts that comprised the convictions for counts 1, 2, and/or 4. Therefore, presumably, sec tion 654 should result in a stay of sentence on count 6. However, the issue of whether defe ndant’s active partic ipation sentence should be stayed is not so easily resolved. Our Supreme Court is currently consid ering the issue of whether section 654 applies when a defendant has been given a sent ence for (1) active partic ipation in a street gang (§ 186.22, subd. (a)), and (2) a separate sentence for the crime used to prove the underlying felony element in the active participation offense. ( People v. Mesa (2010) 186 Cal.App.4th 773, review granted Oct. 27, 2010, S185688.) The Co urts of Appeal are split on the issue. This court has concluded section 654 bars the imposition of the active participation sentence when a defendant has already been sentenced for the act that

3 The court neither instructed the ju ry nor did the jury indicate upon which underlying felony or felonies it was relying in rendering a guilty verdict on count 6.11 constitutes the underlying felony in th e active participation offense. ( Sanchez , supra , 179 Cal.App.4th at p. 1316.) In Sanchez , we reasoned that if an offense were used to satisfy the underlying felony element of the active par ticipation offense, then the same act and intent “almost by definition” had to be involved in both crimes. Therefore, we concluded a defendant could not be punished for both active participation and the underlying felony, pursuant to section 654. ( Ibid. ) Courts “‘construe statutes and regula tions in a manner that carries out the legislative or regulatory intent. [Citation.] [Courts] must “‘ascert ain the intent of the [drafters] so as to effectuate the purpose’” of the regulations. [Citation.] The words used are the primary source for identifying the drafte r’s intent. [Citation.] [Courts] give those words their usual and ordinary meaning wher e possible. [Citations.] [Courts] give significance to every word, avoidi ng an interpretation that re nders any word surplusage. [Citation.] [Courts] also inte rpret words of a regulation in context, harmonizing to the extent possible all provisions relating to the same subject matter. [Citation.]’ [Citation.]” ( In re Espinoza (2011) 192 Cal.App.4th 97, 10 4 [Fourth Dist., Div. Two].) Section 186.22, subdivision (a), provides: “Any person who actively participates in any criminal street gang w ith knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully prom otes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”12 Looking at the plain language of the st atute, and giving the words their usual and ordinary meanings, it appears the statute was designed to punish people who actively participate in a gang. Our high court has concluded “that the phrase ‘actively participates’ needs no fu rther description.” ( People v. Albillar (2010) 51 Cal.4th 47, 58.) However, the Supreme Court explained that “s ection 186.22(a) imposes criminal liability not for lawful association, but only when a de fendant ‘actively partic ipates’ in a criminal street gang while also aiding and abetting a felony offense commi tted by the gang’s members. [Citation.]” ( Castenada , supra , 23 Cal.4th at pp. 751-752.) Accordingly, the underlying felony is an element of secti on 186.22, subdivision (a ). Therefore, every conviction for section 186.22, subdivisio n (a), includes the finding that defendant committed an underlying felony. A problem arises because the underlying felony is chargeable as an independent offense, e.g., robbery or rape. Additionally, if a defendant intended to assist or promote the gang, then that issue can be addressed by the gang enhancement set forth in section 186.22, subdivision (b). As a result, the s ubstantive offense of active participation in a gang is essentially meaningless, because if a defendant committed a felony to benefit a gang, then a prosecutor could simply charge the defendant with the felony and the gang enhancement—there is no need to charge the defendant w ith the active participation offense because the charges would be practica lly identical, and therefore, the application of section 654 would render th e active participation offense meaningless. For example, the gang enhancement requires the felony be committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members,” (§ 186.22, subd.13 (b)), while the active participation offense requires that a person “willfully promotes, furthers, or assists in any felonious crim inal conduct by members of [the] gang” (§ 186.22, subd. (a)). Accordingly, if section 654 is applicable to the active participation offense, then the active partic ipation offense is a redundanc y in the Penal Code, since it serves no purpose, as a defendant’s senten ce for the conviction would be stayed by section 654 due to the active participation o ffense always involving the same act as the underlying felony. 4 The plain language of the statute has left us with th e issue of section 186.22, subdivision (a), appearing redundant or superfluo us; therefore, we look to the legislative intent related to the subdivision and stat utory scheme. When enacting the Street Terrorism Enforcement and Pr evention Act, our Legislatur e found “that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of cr imes against the peaceful

4 We have considered the possibility th e active participati on offense could be used if a prosecutor did not want to char ge the underlying felony; however, that reasoning also fails, because ultimately the prosecutor will have to prove a felony was committed. For example, in a case involving an assault, the prosecutor would need to show the assault amounted to a felony, rather than simple assault. Therefore, the prosecutor still has the burden of proving a felony occurred, meaning it would be logical for the prosecutor to simply ch arge the felony assault with a gang enhancement (rather than charging active participation), saving the prosecutor from proving the additional element of “active participation.” The activ e participation offense could also be an attempt to punish criminal activity by a gang member not “committed for the benefit of, at the direction of, or in association with an y criminal street gang” as required by section 186.22, subdivision (b). However, without an express exemption from the dictates of section 654, we cannot discern how a defenda nt committing such an offense could be deemed to have a separate intent than that held when committing the underlying felony offense; thus, section 654 wo uld appear to bar imposition of sentence on the former whenever a defendant is convicted of both.14 citizens of their neighborhoods.” (§ 186.21 .) As a result, the Legislature enacted the Street Terrorism Enforcement and Prevention Act with the intent of “seek[ing] the eradication of criminal activ ity by street gangs by focusing upon patterns of criminal gang activity and upon the organi zed nature of street gangs, which together, are the chief source of terror created by street gangs.” (§ 186.21.) There is nothing in the Legislature’s d eclared intent explaining how a conviction for active participation (§ 186. 22, subd. (a)) differs from a conviction of the underlying felony with a gang enhancement (§ 186.22, subd. (b)). For exam ple, it is not clear if the active participation offense was meant to resu lt in harsher sentences and therefore work as an exception to section 654; however, if the goal were ha rsher sentences, then it would seem easier to simply raise the prison te rm by providing for an associated gang enhancement, i.e., simply enhancing the sentence of a ny crime committed by any gang member. In sum, it appears the app lication of section 654 to th e active participation offense will render the provision superfluous because a defendant’s sentence for the offense will almost always be stayed pursuant to sec tion 654 due to the un derlying felony always comprising the same act as the acti ve participation act. As cited ante , we are aware of the rule that we should not interpret a provision to be su rplusage; however, we are not aware of any rule that allows a statute to be ex empted from the law set forth in section 654 simply because application of section 654 wi ll render the provision surplusage. In other words, the fact the application of section 6 54 will render this statut e superfluous is not a legal reason for exempting the provision from law set forth in section 654.15 A somewhat related, but alternate, theory we have considered is the possibility that section 186.22, subdivision (a), operates as a specific statute, and therefore trumps section 654, which is a general statute; ho wever, that reasoning also fails. There is a “well-established rule . . . that the Legislatur e may create an express exception to section 654’s general rule against double punishment by stating a specific legislative intent to impose additional punishment. [Citations.]” ( People v. Ramirez (1995) 33 Cal.App.4th 559, 572-573.) “‘A statute which provides that a defendant shall receive a sentence enhancement in addition to any other auth orized punishment constitutes an express exception to section 654.’” ( People v. Palacios (2007) 41 Cal.4th 720, 730.) We can find no language in the declar ed legislative intent (§ 186.21), or the provision itself, creating an exemption to the application for section 654. For example, there is no express reference to section 654. (§§ 186.21, 186.22.) Further there is not an implied reference to section 654, such as “n otwithstanding any other law” or similar language to the same effect. (See People v. Palacios , supra , 41 Cal.4th at p. 730 [the phrase “‘notwithstanding any ot her provision of law’” crea ted an exception to the application of section 654].) Since there is nothing in the statute or declared intent specifically creating an exception to section 654, we conclude the active participation provision was not meant to be interpreted as a specific statute that trumps the general rule set forth in section 654. Since it has been held the active par ticipation offense centers upon felonious conduct, rather than lawful association, it wo uld appear the underlying felony element of the active participation offense will always re sult in the sentence for active participation16 being stayed pursuant to secti on 654, because the same act w ill inevitability be at issue in the straight felony charge an d the active participation charge . As a result, it seems the active participation provision is superfluous. Further, there does not appear to be any legal exemption removing the active participati on sentence from the ambit of section 654. As a result, we conclude 654 does act as a bar to the imposition of defendant’s sentence for active participation (§ 1 86.22, subd. (a)). The trial c ourt incorrectly ordered that defendant’s sentence for the offense should be served consecutively, when the sentence should have been st ayed. Accordingly, we will di rect that defendant’s active participation sentence be stayed.
C. ROMERO MOTION Defendant contends the se ntencing court abused its discretion in denying his motion to strike one of his two prior strike offenses because the co urt failed to make a determination, based upon fa cts with evidentiary value, regarding whether defendant’s prior convictions constituted a continuous cour se of conduct such that they should be treated as one, rather than two, prior strikes. We hold the court acted within its discretion in declining defendant’s invitation to strike one of his prior strike convictions. On April 1, 2010, after defe ndant’s conviction, he filed a Romero motion requesting the court strike at least one of his two prior st rike convictions. Defendant noted that his prior two strikes were based on a single course of conduct. Defendant cited People v. Benson (1998) 18 Cal.4th 24, for the proposition that “there are some circumstances in which two prior felony convictions are so closely connected—for example, when multiple conv ictions arise out of a single act by the defendant as17 distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its disc retion under section 1385 if it failed to strike one of the priors.” ( Id . at p. 36, fn. 8.) Moreover, defendant cited People v. Burgos (2004) 117 Cal.App.4th 1209, for the proposition “that the failure to strike one of . . . two prior convictions that arose from a single act constitutes an abuse of discretion.” ( Id . at p. 1214, fn. omitted.) Defendant concluded, “[ h]ere, [defendant’s] two prior convictions were, in the language of Benson , ‘so closely connected,’ having arisen from the same single act, that failure to strike one of them must be deemed an abuse of discretion.” (Italics added.) Although the People filed opposition to defe ndant’s motion, they did not address the issue of whether defendant’s prio r convictions constituted a single course of conduct. The probation officer’s repor t filed on May 7, 2010, provi ded “a brief synopsis of the circumstances” of defendant’s prior co nvictions: “On June 12, 2004, officers responded to a ‘man with a gun’ call in the area of 10th Street and Brockton Avenue, in the City and County of Rivers ide. A witness called 911 to report three Hispanic males, later identified as [defendant, Michael and Moises] were in a lowered car pointing a handgun at people. Officers in the area locate d a vehicle matching the description at 14th Street and Brockton Avenue. As they were conducting a felony stop, dispatch broadcasted a robbery had just occurred in the ar ea of 11th Street and Locust Avenue. [¶] While officers detained the defe ndant[;] another officer contacted the victim[.] He was riding his bicycle on University Avenue, when the vehicle and suspects drove through the parking lot, ‘mad dogging’ the victim. At that time, [Moises] as ked if the victim was18 from ‘1200 Blocc’ (an active Black street ga ng that claims Eastside Riverside). The victim told them he was not in a gang a nd the suspects challenged him to fight. The victim was struck several times, at one poi nt having an advantage on [Moises]. The defendant and [Michael] then exited the vehi cle and surrounded the victim. [Michael] told the victim, he was going to ‘dump on hi m’ (meaning he was going to be shot). The victim was able to run away as his bi cycle was taken by one of the suspects.” At the sentencing hearing on May 7, 2010 , the court noted it had read defendant’s motion and the People’s opposition It then engaged in the followi ng colloquy with the People: “[Court]: [W]e also discu ssed in chambers . . . his prio r convictions that constitute the strikes; and if I’m remembering correc tly, the defendant, along with some others, robbed the victim of his bicy cle, and then the victim got away and went to a place of seeming safety and to discuss the matter with his friend and his friend’s mother. “[Prosecutor]: Yes, Your Honor. “[Court]: “And the defendant and the ot hers came after him and made threats to him at that time. “[Prosecutor]: Again, yes. [J]ust to clarify, Your Honor, it wasn’t just a robbing of the bicycle, they also beat him at that point. “[Court]: Okay. Bu t then there was the di stance—they separated? “[Prosecutor]: Th at’s correct. “[Court]: And then the defendant returned and made threats. “[Prosecutor]: Correct.19 “[Court]: Okay. All right. Now as to the Romero motion, . . . it would appear to me that under those circumstances, that . . . the robbery and the threats are not one continuous course of conduct, but rather ther e’s an intermission and a distance that don’t take place at the same place or at the same time, albeit, the same victim and the same defendant.” Defense counsel then argued: “I would sa y that it is indivisible in the following sense: That you have the same perpetrators, the same victim close in time, close in space and in terms of distance. It’s not like they ca me back the next day. It was during the heat of battle of young and foolish actors who essentially had a continuing course of conduct, and is indivisible in that sense. It’s not lik e they came back the next day, or the next week, or had different victims. ” The court then found: “[a] s to the Romero motion . . . I do find that . . . the prior offenses occurred at different times and in different places, and for that reason, it does not appear that they are from one continuous act.” Moreover, the court concluded that as to “whe ther it’s in the interest of ju stice to exercise discretion to strike it, . . . I can’t help but be swayed by th e fact that he goes to prison and keeps going, gets paroled and keep s going back, because a pparently he keeps violating his parole, continues in the gang affiliation. It does not a ppear that he is the kind of person that does not fall within the parameters of the thr ee-strikes laws.” The court then denied defendant’s motion. “[A] court’s failure to dism iss or strike a prior convic tion allegation is subject to review under the deferential abuse of discretion standard.” ( People v. Carmony (2004) 33 Cal.4th 367, 374.) Under th is standard, defendant bears the burden of establishing an20 abuse of discretion. In the ab sence of such a showing, the tr ial court is presumed to have acted correctly. The appellate court may not substitute its judgment for that of the trial court when determining whether the trial court’ s decision to strike the prior was proper. ( Id. at pp. 376-377.) “‘[I]n ruli ng whether to strike or vacate a prior serious and/or violent felony conviction allegation or findi ng under the Three Strikes law, on its own motion, “in furtherance of justice” pursuant to . . . section 1385[, subdivision] (a), or in reviewing such a ruling, the court in questi on must consider whether, in light of the nature and circumstances of his present fel onies and prior serious and/or violent felony convictions, and the particulars of his ba ckground, 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 convi cted of one or more serious and/or violent felonies.’ [Citation.]” ( Id . at p. 377.) “‘Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of th e law, we shall affirm the tria l court’s ruling, even if we might have ruled differently in th e first instance’ [citation].” ( Id . at p. 378.) Where a prior court stayed imposition of sentence on one or more prior strike offenses pursuant to section 654, a subseque nt court should evaluate that fact when determining whether to strike the prior strike conviction pursuant to Romero . (See People v. Benson , supra , 18 Cal.4th at p. 36, fn. 8.) A court may abuse its discretion by declining to strike a prior co nviction upon which sentence was stayed pursuant to section 654, when multiple convictions arose from a single act. (See Ibid ; People v. Burgos , supra , 117 Cal.App.4th at p. 1216.) However, the “Three Strikes” law “must be21 interpreted to permit—but not necessarily require—a qualif ying prior conviction to be treated as a strike even if the sentence on the conviction has been stayed pursuant to the provisions of section 654.” ( Benson , at p. 36.) Any contention that a prior strike conviction upon which sent ence has been stayed must be stricken in a later proceeding is “untenable.” ( Ibid .) Defendant maintains that the Prosecuto r’s comments to the court were entitled to no evidentiary value whatsoev er. Moreover, defendant c ontends the facts in the probation officer’s report are insufficient for th e court to have made a factual finding that defendant’s prior convictions involved divisi ble behavior. Thus, defendant argues the court’s finding his prior co nviction behavior involved divisible behavior was not supported by substantial ev idence and, therefore, the court’s denial of his Romero motion, based in part on this determinati on, was an abuse of discretion. Defendant requests that this court remand the matter for resentencing, at which time the parties may adduce admissible evidence concerning th e circumstances involved in defendant’s commission of the prior strike conduct. We hold sufficient admi ssible evidence was adduced below to suppo rt the court’s ruling. Moreov er, the court acted within its discretion in denying defendant’s Romero motion. First, as the People note, by “making his Romero motion, defendant undertook the burden to show that a strike should be stricken . Thus, to the extent defendant wanted to show that his two strikes arose from the same act, he had the burden to provide evidence of that fact. Thus, gaps or ambiguities about the facts of his two strikes would normally cut against defendant.” ( People v. Scott (2009) 179 Cal.App.4t h 920, 925, fn. 2.)22 Therefore, defendant’s failure to adduce evidence below that his strikes arose from the same act forfeits this c ontention on appeal. ( People v. Stowell (2003) 31 Cal.4th 1107, 1113 [forfeiture doctrine app lies to failure to object to factual findings made at sentencing].) 5 Second, it is clear from the record defe ndant had no dispute with the prosecutor’s recount of the facts regarding defendant’s ear lier convictions; he merely disagreed with the prosecution’s interpretation of those facts. From the probation officer’s report, which defendant concedes has evidentia ry value, it is clear that tw o separate incidents were at issue regarding defendant’s pr ior convictions. The police we re called out initially when someone reported persons, including defendant, driving around pointin g a gun; the police were called again later with a report of a r obbery. Thus, the probation officer’s report alone supported a determination that at le ast two separate offe nses had occurred. Additionally, from the court’s recitation of the facts immediately upon going on the record, it is clear that the court and counsel ha d an extensive, off th e record discussion of

5 In the event we find de fendant forfeited the issue, as we do, defendant also argues his counsel below provided ineffective a ssistance of counsel by failing to object to the prosecutor’s statement of facts and the tria l court’s reliance upon it. However, “[i]f the record on appeal fails to show why coun sel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.” ( People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) Here, the record fails to show why defe nse counsel failed to provid e evidence that defendant’s prior convictions were the result of a single c ourse of conduct or w hy he failed to object to the prosecutor’s recount of the facts. Nevertheless, ther e is a probable answer to be gleaned from the record: Defe nse counsel declined to so because, in fact, defendant’s prior conviction offenses were definitively divisible behavior. Thus, any attempt to contradict the prosecutor’s statements wo uld be both frivolous and disingenuous. Therefore, defendant’s claim of ineffec tive assistance of counsel fails.23 the facts concerning the prior strike conduc t. Thus, the court did not render a factual determination based upon the prosecutor’s statements alone, but made its findings after reading the probation officer’s report and hearing argument from both counsel regarding the matter. Third, a review of the abstract of judg ment from the prior convictions reveals that the court that sentenced defendant on those offenses did not stay any of the counts pursuant to section 654. Thus, the very cour t which had the most thorough understanding of the facts of the prior strike convictions had made a determination that they did not involve a single course of conduct. ( People v. Tarris , supra , 180 Cal.App.4th at p. 626 [even in the absence of any reference to sect ion 654 during sentencing, the fact the court did not stay the sentence on any count is deemed to reflect an implied finding that each count constituted a separate offense].) Ther efore, the court had before it substantial, admissible evidence upon which to render its finding that defendant’s prior strike convictions did not involve one continuous act. Finally, the court properly exercised its discretion in denying defendant’s Romero motion. Defendant had incurred five prior fe lony convictions; four with true findings on attached gang enhancements. Defendant had incurred one prior misdemeanor conviction, likewise with a true finding on an attached gang enhancement. Defendant had an established history of serious, violent offenses. After being paroled, defendant had twice been returned to custody for violations of his parole conditions. Defendant was on parole when he committed the instant offenses; he had been releas ed from prison less than five24 months earlier. The trial court balanced the relevant factors and came to an impartial decision. Defendant cannot be said to be outside the Three Strikes scheme. DISPOSITON Defendant’s sentence for count 4 is modified to reflect that the sentence is stayed, pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) Defendant’s conviction on count 6 is reversed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER J.

We concur:

/s/ McKINSTER Acting P. J.

/s/ CODRINGTON J.