Filed 3/10/22 P. v. Flores CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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. No s . SCD272842 & SCS290928 )

APPEAL from a judgment of the Superior Court of San Diego County,
Robe rt 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 review ed 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 are2

no arguable issues on appeal other than a correction of a clerical error on the abstract of judgment. We, therefore, order t he clerk of the superior court to strike from the abstract of judgment the criminal justice administration fee
i n the amount of $308 because it does not conform to the court’s pronouncement of judgment. In all other respects, we affirm the judgment

. BACKGROUND 1
A. Convictions and Sentencing Moises Flores pleaded guilty in June 2017 to a charge of unlawful

posse ssion 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 , t he 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 , “ I n 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. T he jury [in case n o. SCD272842] accepted Flores ’ s claim to a po int, 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 s trike
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, s u bd. (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 t o run concurrently with the term imposed for case number SCD272842.
B. Prior Appeal
In Flores’s prior appea l regarding case number SCD272842 , we concluded there was no error requiring reversal of his assault conviction and
no error in the court’s select ion 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 enhanceme nt for serving a prior prison term no longer applied to Flores. W e accordingly remanded the

matter for full resentencing, with directions to strike th e one
- year enhancement under former section 667.5, subdivision (b). ( Flores I , supra , D074964

. )4

C. Resentencing on Remand
The trial court struck the one

- year prior prison term enhancement as
directed and conducted a full re sentencing hearing. The cour t 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 month s 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)

. T he court next considered a letter it received from the California Department of Correctio ns and Rehabilitation (CDCR) stat ing that the court imposed an illegal sentence in case number SCS290928 by running the full

sentence for the unlawful possession of ammunition offen s e concurre nt with the sentence for the convictions in case number SCD272842

. According to the letter, t he 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 conse cutive 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 recei ve 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 case5

number SCD272842. The total prison term for both cases is 10 years, eight
months.
D. Current Appeal and Post

- Appeal Corrections o f Judgment Flores appealed the judgment s in both cases and requested a certificate of probable cause. He contended the increase in his sentence was “judicial vindictiveness,” he was denie d 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

requ esting 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 295 5 0.1 be
deleted from the amended abstract because authorization for those fees had
been repealed by the Legislature . (As sem

. 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 court

imposed costs” pursuant to Government Code section 295 5 0.1 “unenforceable and uncollectible and any portion of a judg ment 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 ( P eopl e 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, t he 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 incl ude 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 de leted. ” T hat 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 issue s for reversal on appeal. She ask ed 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.4 th 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 t he 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 crimina l

4 For case number SCD2728 4 2, the re were 1,431 actual days plus 458 days for pre

- sentence conduct credits for a total credit of 1 , 88 9 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 str ike
the strike to which Flores admitted in case number SCD272842. A fter further discussion wi th 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, t he court considered Flores’s renewed motion
and comm ented 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 crim inal 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 t rial 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 mitiga ting and aggravating factors

. ( People v. Estrada (2020) 58 Cal.App.5th 839, 843

. ) I t must state on the record the reasons for its sentencing choice ( § 1170, subd. (c).) Flores’s8

counsel requested the low term of two years for assault with a deadly

weapon

. (§ 24 5, 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, 201 8, 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 crimina l history both before and after this plea was taken. The court noted that the plea agreement included a Cruz 5 waiver in which Flores acknowledged that if he were arrested for or committed another crime before sentencing, he would be sente nced unconditionally. Nevertheless, h e 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 1 247 ; “A ‘ Cruz waiver ’ gi ves a trial court the power to ‘ withdra w its approval of the defendant’ s plea and impose a sentence in ex cess of the bargained

- for term,’ if the defendant” breaches the agreement’ s conditions. ( People v. Puente (2008) 165 Cal.App.4 th 1143, 1146, fn. 3.)9

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

a n unauthori zed sentence “i s 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 (19 73) 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

co rrected 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 appell ant denied effec tive assistance of trial counsel?
To establ ish 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

c laims, our scrutiny of an attorney’s performance “ ‘ must be highly deferenti al ’ ” 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 act ed or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and10

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 conduc t 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 rend er a trial fundamentally unfair is error under s tate law only when it involves “ ‘ “ the use of deceptive or reprehensible methods to attempt to persuad e either the court or the jury. ” ’ ” ’ [Citation.] ‘ “ A defendant ’ s conviction will not be reversed fo r 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.)11

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. T he original complaint in case number SC D272842 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 Harvey 6 waive r 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 poss ession 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 reason ably arguable appellate issues for reversal of the judgment. Competent counsel has represented Flores on this appeal.
II.
T he 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 s hould 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. T he 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, t he matter is remanded with
direction s 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.