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

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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 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. 
2. 

 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, 
3. 

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 
4. 

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. 
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 would support application of that rule to his 

case. 

DISPOSITION 

 The judgment is affirmed.