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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v. ANGEL AYALA DIAZ, Defendant and Appellant. F064787 (Super. Ct. No. 11CM2175)



### OPINION

THE COURT * APPEAL from a judgment of the Superi or Court of Kings County. Donna L. Tarter, Judge. Carol Foster, 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, Michael P. Farrell, Assistant Atto rney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys Genera l, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J ., Kane, J. and Poochigian, J.2. Defendant and appellant Angel Ayala Di az 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 tw o prior offenses arose from the same act. That fact is not demonstrated by the presen t record. Accordingly, in affirming the judgment against appellant, we are not requir ed to, and do not, re ach the legal theory defendant asserts. FACTS AND PROCED URAL 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 st rike 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 s ee 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. De fendant was charged by information with one count of bringing a controlled substan ce into a jail, a violation of Penal Code section 4573. The information alleged two pr ior prison term enha ncements (Pen. Code, § 667.5, subd. (b)) based on 2005 and 2007 co nvictions, a gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1), a nd, most significantly for this appeal, two strikes pursuant to Penal Code sections 667, subdivisions (b) through (i), and 1170.12,3. subdivisions (a) through (d). A jury found de fendant 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 Pe nal 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 st rikes. Counsel also contended as further mitigation that defendant’s act of smuggling th e 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 sin ce 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 st rike conviction; however, because of the defendant’s prior violent crimin al 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 ye ars 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 seri ous and/or violent felony conv ictions, 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 violent4. felonies.” ( People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court clearly considered the enumerated factors and reas onably concluded defe ndant could not be deemed outside the “spirit” of the Three Strikes law. Defendant does not contend otherwise. Defendant does contend, howe ver, that there is a special instance in which the trial court is compelled to exercise its discretion in favo r of striking a strike for sentencing purposes: because “both conv ictions arose out of the same criminal act, [defendant] should have been sent enced as though he had only b een previously convicted of one serious felony.” He assert s 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 co nvictions 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 resolv e the issue presented in Burgos and Scott because the record does not esta blish that defendant’s strike convictions for carrying a concealed weapon and active participa tion in a gang were based on the same, single act. In particula r, 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. Co de, § 654.) While defense counsel asserted at sentencing in the present case that defend ant told him the strikes were based on only one crime, counsel did not take the further st ep 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 crim inal conduct that supported the two strike convictions.5. 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 woul d support application of that rule to his

case. DISPOSITION The judgment is affirmed.