Filed 3/10/22 P. v. Flores CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MOISES FLORES,

Defendant and Appellant.

 D079165

 (Super. Ct. Nos. SCD272842

 & SCS290928)

APPEAL from a judgment of the Superior Court of San Diego County, 

Robert F. O’Neill, Judge. Affirmed in part and remanded with directions. 

Christine M. Aros, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

No appearance for Plaintiff and Respondent. 

We have independently reviewed the record in this case consistent with 

our obligations under People v. Wende (1979) 25 Cal.3d 436 (Wende) and

Anders v. California (1967) 386 U.S. 738 (Anders). We deem appellant’s 

request for judicial notice filed December 14, 2021, to be a motion to augment 

the record with documents properly before the trial court. Accordingly, we 

grant the motion. (Cal. Rules of Court, rule 8.155(a).) We conclude there are 
2

no arguable issues on appeal other than a correction of a clerical error on the 

abstract of judgment. We, therefore, order the clerk of the superior court to 

strike from the abstract of judgment the criminal justice administration fee 

in the amount of $308 because it does not conform to the court’s 

pronouncement of judgment. In all other respects, we affirm the judgment. 

BACKGROUND1

A. Convictions and Sentencing

Moises Flores pleaded guilty in June 2017 to a charge of unlawful 

possession of ammunition (Pen. Code,2 § 30305, subd. (a)(1)) in case number 

SCS290928. He admitted he had a prior strike and served a prior prison 

term. After indicating it would consider granting felony probation and 

reducing the count to a misdemeanor, the court ordered Flores to return for 

sentencing on July 24, 2017. 

But roughly a week before his sentencing, Flores’s circumstances took a 

decided turn for the worse. As we explained in our prior opinion, “In the 

course of a chaotic fight in an apartment complex parking lot 

between . . . Flores and two furniture delivery men, Flores used a baseball 

bat and meat cleaver in what he claimed was self-defense, defense of others, 

or defense of property. The jury [in case no. SCD272842] accepted Flores’s 

claim to a point, acquitting him of robbery ([ ] § 211 [count 1]) and two counts 

of assault with a deadly weapon (§ 245, subd. (a)(1) [counts 2 & 3]) in 

connection with these events. But it did not accept that Flores acted in 

lawful self-defense or defense of others when he ran into a stranger’s 

1 We provide the following brief description of the facts and procedural 

history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) 

2 Further undesignated statutory references are to the Penal Code. 
3

apartment, returned with a meat cleaver, and used it to strike one of the 

delivery men in the leg. The jury convicted Flores of a single count of assault 

with a deadly weapon (§ 245, subd. (a)(1) [count 4]), and he later admitted an 

[out on bail] enhancement, a prison prior, and a strike prior. In a separate 

proceeding, Flores pleaded guilty to an unrelated vandalism charge (§ 594, 

subds. (a) & (b)(1) [count 5]). Denying his motion to strike his prior strike 

under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529−530, the 

court sentenced Flores to a cumulative term of 10 years and four months in 

state prison.” (People v. Flores (Apr. 17, 2020, D074964) [nonpub. opn.]

(Flores I).) 

With respect to the unlawful possession of ammunition charge 

(§ 30305, subd. (a)(1)) in case number SCS290928, the court imposed the 

middle term of two years, doubled to four years for the strike, plus one year 

for the prison prior. It ordered the term to run concurrently with the term 

imposed for case number SCD272842. 

B. Prior Appeal

In Flores’s prior appeal regarding case number SCD272842, we 

concluded there was no error requiring reversal of his assault conviction and 

no error in the court’s selection of a middle-term sentence for that count. We 

also concluded that the trial court did not abuse its discretion in denying 

Flores’s Romero motion. But in light of legislation passed after Flores was 

sentenced, the People conceded the one-year enhancement for serving a prior 

prison term no longer applied to Flores. We accordingly remanded the 

matter for full resentencing, with directions to strike the one-year 

enhancement under former section 667.5, subdivision (b). (Flores I, supra, 

D074964.) 
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C. Resentencing on Remand

The trial court struck the one-year prior prison term enhancement as 

directed and conducted a full resentencing hearing. The court received

supplemental sentencing briefs from the parties. It also considered and 

denied Flores’s renewed Romero motion to strike his prior strike. The court 

then resentenced Flores in case number SCD272842 to a cumulative term of 

nine years, four months based on the middle term of three years, doubled to 

six years for count 4, plus one-third the middle term of eight months, doubled 

to 16 months for count 5 and two years for the out-on-bail enhancement

(§ 12022.1). 

The court next considered a letter it received from the California 

Department of Corrections and Rehabilitation (CDCR) stating that the court

imposed an illegal sentence in case number SCS290928 by running the full 

sentence for the unlawful possession of ammunition offense concurrent with 

the sentence for the convictions in case number SCD272842. According to the 

letter, the sentences should have been consecutive pursuant to section 667, 

subdivision (c)(6) and the court should have imposed only one-third the 

middle term for a consecutive sentence pursuant to section 1170.1, 

subdivision (a). Flores asked the court to reduce the unlawful possession of 

ammunition charge to a misdemeanor so that it could run concurrently with 

the sentence in case number SCD272842 and he would not receive more time 

than originally imposed. The court denied the request, noting Flores’s 

criminal history and that his arrest for case number SCD272842 was only 

weeks after entering the plea for unlawful possession of ammunition. It then

sentenced him in case number SCS290928 to eight months (one-third the 

middle term of two years) doubled to 16 months, to run consecutive to case 
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number SCD272842. The total prison term for both cases is 10 years, eight 

months. 

D. Current Appeal and Post-Appeal Corrections of Judgment

Flores appealed the judgments in both cases and requested a certificate 

of probable cause. He contended the increase in his sentence was “judicial 

vindictiveness,” he was denied effective assistance of counsel because he was 

not informed about a plea offer, and the court failed to state new or 

additional grounds for imposing the middle term rather than a low term. The 

court granted the certificate of probable cause. 

Thereafter, Flores’s appellate counsel sent letters to the trial court 

requesting correction of clerical errors on the abstract of judgment regarding 

assessments and credits. Counsel also asked that the criminal justice 

administration fee imposed pursuant to Government Code section 29550.1 be 

deleted from the amended abstract because authorization for those fees had 

been repealed by the Legislature. (Assem. Bill No. 1869 (2019-2020 Reg. 

Sess.), § 2 eff. Sept. 18, 2020, operative July 1, 2021.) Amended Government 

Code section 6111, subdivision (a) made “the unpaid balance of any courtimposed costs” pursuant to Government Code section 29550.1 “unenforceable 

and uncollectible and any portion of a judgment imposing those costs shall be 

vacated.”3 

3 Government Code section 6111 provides: “On and after July 1, 2021, 

the unpaid balance of any court-imposed costs pursuant to Section 27712, 

subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 

29550.3, as those sections read on June 30, 2021, is unenforceable and 

uncollectible and any portion of a judgment imposing those costs shall be 

vacated.” Courts have held the balance of any costs imposed pursuant to 

these sections that remains unpaid as of July 1, 2021, must be vacated 

(People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953–954 (Lopez-Vinck); 

People v. Greeley (2021) 70 Cal.App.5th 609, 626–627.) 
6

In response, the court made several changes to the abstract of 

judgment. It corrected the amounts of the court operations assessment and 

the criminal conviction assessment and added custody credits to include the 

actual days from the time of his arrest to the time of his resentencing and his 

pre-sentence conduct credits, which accrued while he was in local custody.4

The court also stated the criminal justice administration fee in the amount of 

$308 “is deleted.” That fee, however, remains on the amended abstract. 

DISCUSSION

I.

Appellate counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436 

indicating she identified no reasonably arguable issues for reversal on appeal.

She asked this court to review the record as mandated by Wende. Counsel 

identified a number of issues she considered to assist the court in conducting 

our independent review of the record. (Anders, supra, 386 U.S. at pp. 744, 

745; In re Phoenix H. (2009) 47 Cal.4th 835, 843.) 

We offered Flores the opportunity to file a supplemental brief on his 

own behalf. He submitted a brief identifying nearly the same issues 

identified by his attorney. He contends the trial court’s denial of his renewed 

Romero motion and the request to reduce the unlawful possession of 

ammunition charge to a misdemeanor was the “result of judicial 

vindictiveness” and the decision was based on “impermissible factors.” He 

also contends the prosecutor made improper arguments about his criminal 

4 For case number SCD272842, there were 1,431 actual days plus 458 

days for pre-sentence conduct credits for a total credit of 1,889 days. For case 

SCS290928, because of consecutive sentencing, Flores had two actual days 

plus two days pre-sentence conduct credits for a total of four days. (People v. 

Johnson (2004) 32 Cal.4th 260, 263, 267–268.) 
7

history resulting in a denial of a fair hearing and due process. We briefly 

address each identified issue. 

1. Did the trial court abuse its discretion in denying appellant’s 

renewed Romero motion? 

At an initial hearing after remand, the court indicated it would strike 

the strike to which Flores admitted in case number SCD272842. After 

further discussion with counsel and Flores, however, the court found good 

cause to grant a continuance of the sentencing hearing to allow additional 

briefing by both parties. 

At the continued hearing, the court considered Flores’s renewed motion 

and commented that it was a “close call.” It noted, however, that Flores had 

been released on bail for the unlawful possession of ammunition charge at 

the time of the assault offense. The court quoted extensively from our prior 

opinion in which we determined, based on Flores’s criminal history and poor 

performance in past periods of supervision, that “the denial of his Romero 

motion was neither irrational nor arbitrary.” The court again denied the 

Romero motion for the reasons it previously indicated. The record 

demonstrates the trial court did not abuse its discretion in denying the 

renewed Romero motion to strike Flores’s prior strike. (People v. Carmony

(2004) 33 Cal.4th 367, 377–378.) 

2. Did the trial court err in failing to state new or additional 

grounds for imposing the middle term, rather than the low term? 

Section 1170, subdivision (b) gives the court discretion to choose, under 

certain circumstances, whether to impose the upper, middle or lower 

determinate term based on its consideration of mitigating and aggravating 

factors. (People v. Estrada (2020) 58 Cal.App.5th 839, 843.) It must state on 

the record the reasons for its sentencing choice (§ 1170, subd. (c).) Flores’s 
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counsel requested the low term of two years for assault with a deadly 

weapon. (§ 245, subd. (a)(1).) The court selected the “presumptive mid[dle] 

term of three years” stating it could find no factors in mitigation and there 

were four factors in aggravation. The court referred to and incorporated the 

probation report dated March 23, 2018, which cited the four aggravating 

factors. All the factors that existed at the time of the original sentencing

hearing remained appropriate considerations at the time of resentencing. 

3. Did the trial court abuse its discretion in denying appellant’s 

request to reduce his conviction in case number SCD290928 to a 

misdemeanor? 

The court considered and rejected Flores’s request to reduce his 

conviction in case number SCD290928 to a misdemeanor under section 17, 

subdivision (b) considering his criminal history both before and after this plea 

was taken. The court noted that the plea agreement included a Cruz5 waiver 

in which Flores acknowledged that if he were arrested for or committed 

another crime before sentencing, he would be sentenced unconditionally. 

Nevertheless, he was arrested only shortly after this plea for the assault with 

a deadly weapon and vandalism charges in case number SCD272842. The 

court did not abuse its discretion. (People v. Tran (2015) 242 Cal.App.4th 

877, 887–891.) 

5 People v. Cruz (1988) 44 Cal.3d 1247; “A ‘Cruz waiver’ gives a trial 

court the power to ‘withdraw its approval of the defendant’s plea and impose 

a sentence in excess of the bargained-for term,’ if the defendant” breaches the 

agreement’s conditions. (People v. Puente (2008) 165 Cal.App.4th 1143, 1146, 

fn. 3.) 
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4. Was the increase in appellant’s sentence the result of judicial 

vindictiveness? 

Correcting the sentencing error identified in the CDCR letter had the 

effect of increasing Flores’s prison sentence. It is well settled, however, that

an unauthorized sentence “is subject to correction . . . ‘whenever the error 

comes to the attention of the court, even if the correction creates the 

possibility of a more severe punishment.’ ” (People v. Vizcarra (2015) 236 

Cal.App.4th 422, 432; People v. Serrato (1973) 9 Cal.3d 753, 764 [an 

unauthorized sentence “is subject to being set aside judicially and is no bar to 

the imposition of a proper judgment thereafter, even though it is more severe 

than the original unauthorized pronouncement.”].) The fact that the 

corrected sentence resulted in more prison time for Flores does not indicate 

judicial vindictiveness, nor is there any other basis for reaching that 

conclusion based on the record. 

5. Was appellant denied effective assistance of trial counsel?

To establish ineffective assistance of counsel, a defendant has the 

burden to show counsel’s performance fell below the standard of

reasonableness under prevailing professional norms and that the attorney’s 

deficient performance was prejudicial in that he would have obtained a more 

favorable result absent the alleged error. (Strickland v. Washington (1984) 

466 U.S. 668, 687, 694.) When we review ineffective assistance of counsel 

claims, our scrutiny of an attorney’s performance “ ‘must be highly 

deferential’ ” and a defendant “must overcome the ‘presumption that, under 

the circumstances, the challenged action “might be considered sound trial 

strategy.” ’ ” (Bell v. Cone (2002) 535 U.S. 685, 698.) “ ‘[I]f the record on 

appeal fails to show why counsel acted or failed to act in the instance

asserted to be ineffective, unless counsel was asked for an explanation and 
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failed to provide one, or unless there simply could be no satisfactory 

explanation, the claim must be rejected on appeal.’ ” (People v. Huggins

(2006) 38 Cal.4th 175, 206.) Flores did not pursue this argument in his 

supplemental brief and we find no basis for reversal on this issue from our 

independent review of the record. 

6. Did the Prosecutor Commit Misconduct in His Resentencing 

Arguments?

Flores contends the prosecutor’s arguments at the resentencing hearing 

were improper because he stated that Flores had a history of domestic 

violence and that his current offenses occurred while he was on some form of 

supervision. Flores denies he has been convicted of domestic violence. He 

also states he was not under any form of supervision at the time he was 

arrested for the unlawful possession of ammunition charge, but admits he 

was on bail when he was arrested for the charges in case number 

SCD272842. 

“ ‘A prosecutor’s conduct violates a defendant’s constitutional rights 

when the behavior comprises a pattern of conduct so egregious that it infects 

“ ‘the trial with unfairness as to make the resulting conviction a denial of due 

process.’ [Citation.]” [Citation.] The focus of the inquiry is on the effect of 

the prosecutor’s action on the defendant, not on the intent or bad faith of the 

prosecutor. [Citation.] Conduct that does not render a trial fundamentally 

unfair is error under state law only when it involves “ ‘ “the use of deceptive 

or reprehensible methods to attempt to persuade either the court or the 

jury.” ’ ” ’ [Citation.] ‘ “A defendant’s conviction will not be reversed for 

prosecutorial misconduct, however, unless it is reasonably probable that a

result more favorable to the defendant would have been reached without the 

misconduct.” ’ ” (People v. Young (2019) 7 Cal.5th 905, 932–933.) 
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Flores did not object to these statements and, therefore, forfeited the 

issue for appeal. (People v. Tully (2012) 54 Cal.4th 952, 1014.) Even if he 

had objected, we would not find grounds for reversible misconduct. The 

original complaint in case number SCD272842 charged Flores with battery of 

his spouse (§ 243, subd. (e)(1)) within the same range of dates as those for the 

vandalism charge to which he pleaded guilty. Although the battery of a 

spouse charge was dismissed, Flores agreed to a Harvey6 waiver as part of 

his pleas in both cases. Therefore, it was not misconduct for the prosecutor to 

refer to this conduct in his sentencing arguments. Additionally, even if 

Flores was not under some form of supervision when he was arrested for the 

unlawful possession of ammunition charge, it is not reasonably probable he 

would have obtained a more favorable sentence absent this fleeting remark 

given his criminal history and his admission he was on bail when he 

committed the subsequent offenses. (People v. Crew (2003) 31 Cal.4th 822, 

839.) 

Our review of the record as mandated by Wende and Anders has 

disclosed no reasonably arguable appellate issues for reversal of the 

judgment. Competent counsel has represented Flores on this appeal. 

II.

The trial court stated in its December 2, 2021 minute order that the 

criminal justice administration fee in the amount of $308 fee was “deleted.” 

We determined in Lopez-Vinck, supra, 68 Cal.App.5th at pages 953 to 954 

that the unpaid balance of such fees should be vacated. We conclude the 

court’s order deleting the criminal justice administration fee intended to 

6 In People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey), the court held 

conduct underlying dismissed charges cannot be considered at sentencing 

absent a waiver. 
12

vacate any unpaid balance of the fee. The amended abstract of judgment, 

however, still reflects the imposition of the fee. When the abstract of 

judgment does not accurately reflect the judgment pronounced by the court,

we may correct the clerical error at any time. (People v. Mitchell (2001) 26 

Cal.4th 181, 185; People v. Rowland (1988) 206 Cal.App.3d 119, 123.) 

Because the abstract of judgment does not accurately reflect the judgment of 

the court, we direct the clerk of the superior court to strike the $308 fee from 

the amended abstract of judgment. (Ibid.) 

DISPOSITION

The judgment is affirmed. However, the matter is remanded with 

directions for the clerk of the superior court to strike the $308 criminal 

justice administration fee from the amended abstract of judgment. A 

certified copy of the corrected abstract of judgment shall be forwarded to the 

Department of Corrections and Rehabilitation. 

DATO, J.

WE CONCUR:

AARON, Acting P. J.

DO, J.