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Filed 3/30/21 P. v. Gomez-Garcia CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE GOMEZ-GARCIA,

Defendant and Appellant.

C084227

(Super. Ct. No. 10F05320)

Over a period of months in 2002, defendant Jose Gomez-Garcia assaulted three 

victims. An amended information charged defendant with forcible sodomy, forcible rape, 

forcible oral copulation, and forcible digital penetration. The information also alleged 

defendant committed the offenses against multiple victims. The jury found defendant 

guilty as charged except for one multiple victim allegation and a mistrial was found on 

one count of forcible digital penetration. Sentenced to a determinate term of 116 years 

and an indeterminate term of 90 years to life, defendant appeals, alleging instructional 

error and sentencing error. We shall affirm the judgment.
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FACTUAL AND PROCEDURAL BACKGROUND

A third amended information charged defendant with two counts of forcible 

sodomy, counts one and six; six counts of forcible rape, counts two, five, and seven

through ten; one count of forcible copulation, count three; and one count of forcible 

digital penetration, count four. (Pen. Code, §§ 286, subd. (c)(2), 261, subd. (a)(2), former 

288a, subd. (c)(2), 289, subd. (a)(1).)1 The amended information also alleged defendant 

committed the offenses against multiple victims (§ 667.61, subd. (e)(4)) and that 

defendant suffered a prior conviction for a strike offense that qualified as a serious felony 

(§§ 667, subds. (a), (b)-(i), 1170.12, 1192.7, subd. (c)).

A jury trial followed. The following evidence of defendant’s assaults against the 

three victims in June, August, and October of 2002 was introduced at trial.

L.S.—forcible sodomy (count one); rape by force (count two)

The evening of June 29, 2002, L.S., seven months pregnant, was working as a 

prostitute. Defendant drove up and she got into his car. Defendant drove to an industrial 

area and grabbed her by the throat.

Defendant forcibly sodomized and raped L.S. Afterwards, defendant got back into 

his car and drove away.

L.S. called 911 from a nearby pay phone. The responding officer arrived and 

found her with her shirt torn. The officer took her to the hospital where she was 

examined and swab samples were taken. Defendant’s DNA profile was found on a 

cutting from a stain on L.S.’s shirt.

Prior to trial, out of fear police would not believe her, L.S. lied about how she met 

defendant. She did not want to get into trouble.

1

 All further undesignated statutory references are to the Penal Code.
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K.K.—forcible oral copulation (count three); penetration by foreign object (count four); 

rape by force, first, second and third penetration (counts five, seven & eight); forcible 

sodomy (count six)

In August 2002 K.K. was working as a prostitute. However, the night of the 

assault, she was not working as a prostitute.

Defendant came up to K.K., told her he had a knife, and ordered her into his car. 

Defendant drove to another location and tried to force her to orally copulate him. She

refused and defendant choked her. K.K. could not remember every detail of the assault, 

but she knew defendant raped her at least once with a condom on and sodomized her 

without the condom. After defendant drove off, she sought help.

The officer who responded found K.K. upset and crying. She took the officer to 

the scene and he found a used condom on site. At the hospital, K.K. was examined and 

swab samples were taken. Although she could not identify defendant at trial, defendant’s 

DNA profile was found on the swab samples.

D.S.—rape by force, first and second penetration (counts nine & ten)

In October 2002 D.S., a minor, had run away from home and was abandoned by 

the friend who had picked her up. That night, stranded, she turned to prostitution. She 

had one “customer” before defendant picked her up. He took D.S. to an industrial area, 

grabbed her in a headlock, and struck her repeatedly.

Defendant raped D.S. twice. He ejaculated. Defendant turned away and she ran. 

She sought help nearby and the police arrived.

Officers found D.S. crying and upset and took her to the hospital where she was 

examined and swabs were taken. She reported pain in, and the nurse observed bruises on,

her back, face, elbow, and ear. D.S. said defendant hit her with his closed fist and 

forcibly raped her. Her swabs yielded DNA with defendant’s DNA profile.
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At trial, D.S. acknowledged she lied to officers and hospital staff when she said 

defendant used a weapon to coerce her into his car. She lied out of fear that the officers 

would not believe her if she confessed to prostituting herself.

Defense Case

In January 2007 Detective Peter Willover interviewed each victim separately.

L.S. admitted to Willover that she lied to officers about how she met defendant. 

Her other statements concerning the assault largely corroborated her trial testimony.

K.K. never told Willover she was a prostitute and admitted she gave the 

responding officer a fake phone number and address. Her other statements corroborated 

her trial testimony.

D.S. did not tell Willover she worked as a prostitute. However, the rest of the 

interview corroborated her trial testimony.

A defense investigator testified L.S. gave varying versions of how she met 

defendant. Her description of the assault mirrored her testimony at trial.

Verdict and Sentencing

The jury found defendant guilty as charged except for the multiple victim 

allegation on count three and a mistrial was found on count four. The jury found the 

prior conviction allegation true.

The court sentenced defendant to a determinate term of 116 years and an 

indeterminate term of 90 years to life.

DISCUSSION

Instructional Error: Unanimity Instruction

Defendant faults the trial court’s instruction on unanimity, CALCRIM No. 3500 

because the prosecution elected specific acts for the forcible rape charges in counts five,

seven, eight, nine, and ten against K.K. and D.S. According to defendant, CALCRIM 

No. 3500 should only be given when the prosecution fails to elect a specific act among 
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many acts. However, the instruction told the jury it could find defendant guilty of the 

five counts if they agreed the prosecution proved defendant committed at least one of the 

acts and they agreed on which one.

Background

The jury considered five counts of forcible rape against K.K. and D.S. The 

amended information listed the acts as: (1) count five, “first penetration” as to K.K.; (2) 

count seven, “second penetration” as to K.K.; (3) count eight, “third penetration” as to 

K.K.; (4) count nine, “first penetration” as to D.S.; and (5) count ten, “second 

penetration” as to D.S.

After the assault, K.K. told the officer that defendant forcibly raped and 

sodomized her while he was standing outside the car and she was leaning into the car. 

Defendant forcibly raped her again in the same position. Defendant then took off the 

condom and forcibly raped her a third time.

The nurse who examined K.K. testified K.K. knew defendant forcibly raped her 

both with and without a condom. K.K. could not remember how many times or in what 

sequence. K.K. told Detective Willover in 2007 that defendant raped her after he 

sodomized her, and then raped her again without a condom.

At trial, K.K. testified defendant raped her at least once while using a condom 

while they were both in his car, and then sodomized her without a condom while he was 

outside the car. She could not recall if defendant committed any other sexual acts 

because of the passage of time.

D.S. testified that defendant raped her once with a condom and once without while 

she was on her stomach. She subsequently testified defendant did not have a condom on 

during either penetration. She also testified she was raped once while on her back and 

then again when defendant turned her over. This testimony mirrored her statements to 

officers at the scene.
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In considering the unanimity instruction the court and the parties made the 

following observations: 

“THE COURT: Okay. The unanimity instruction. I started going through it, and 

I don’t think it applies to all of the counts. In my mind the only counts it applies to are 

the multiple rape counts for [K.K.] Because like sodomy, there’s only one act of sodomy 

that’s been testified to, right?

“[PROSECUTOR]: There’s also multiple rape counts for [D.S.]

“THE COURT: Yeah, I’m getting to that. But my point is, to the extent there’s 

only evidence of one act of, in this case, sodomy for [D.S.], I don’t think the unanimity 

instruction applies.

“[PROSECUTOR]: Correct.

“THE COURT: The rape for [L.S.] I don’t think applies. It’s only one count. The 

oral copulation for [K.K.], I don’t think it applies. Sexual penetration for [K.K.] I don’t 

think applies. So then we get to -- and I think the sodomy for [K.K.] doesn’t apply. So 

we’ve got multiple counts for rape, three counts of rape for [K.K.] and two counts of rape 

for [D.S.]

“The only thing I wondered about [D.S.] is there were two incidents testified to. 

One with the condom and one without. I don’t recall that there was anything more than 

just those two acts. And I believe, correct me if I’m wrong, that the acts charged in 9 and 

10 are those two.

“[PROSECUTOR]: Yes.

“THE COURT: So I wondered whether or not the unanimity applies to [D.S.]

“[PROSECUTOR]: I think it does.

“THE COURT: Okay. So I’ll give it to both [D.S.] and [K.K.], but on the rape 

charges. I don’t think it applies to any of the others. Okay.

“[DEFENSE COUNSEL]: (Nodding head.)”
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The trial court instructed the jury with CALCRIM No. 3500: “The defendant is 

charged with rape by force or fear of [K.K.] in Counts five, seven, and eight and rape by 

force or fear of [D.S.] in Counts nine and ten. [¶] The People have presented evidence of 

more than one act to prove the defendant committed this offense. You must not find the 

defendant guilty unless you all agree that the People have proved that the defendant 

committed at least one of these acts and you all agree on which act he committed.”

The court next instructed with CALCRIM No. 3515: “Each of the counts charged 

in this case is a separate crime. You must consider each count separately and return a 

separate verdict for each one.”

The prosecutor during closing argument discussed the forcible rape counts against 

K.K. and D.S., telling the jury: “You are going to get multiple verdict forms for each of 

the counts, okay? And some of the verdict forms are going to say first penetration, 

second penetration, third penetration. Because each time the penis is removed and it 

penetrates again, that is a new count. It only applies to Counts 5, 7 and 8 on [K.K.] And 

I’ll tell you, on the stand [K.K.] can’t remember after all these years how many times. 

But in her prior statement, she says he put it in my vagina, then he took it out, then he 

tried to get it in my anus. He couldn’t. He got mad. Then he put it back in my vagina. 

Then he pulled out, took off the condom, put it back in my vagina and then ejaculated. 

That’s three penetrations of her vagina. [¶] [D.S.], she says two penetrations of her 

vagina, right? At first she’s taken from behind, he pulled it out. She says he flipped me 

over, he put it back in. He ejaculated. Two penetrations on [D.S.]”

Defense counsel, during argument, questioned inconsistencies in K.K.’s and 

D.S.’s testimony regarding the sequence of events in the sexual assaults. The prosecutor

responded: “So the fact that they don’t remember a finger going in or if it was vaginal 

rape first and then he anally raped me or, no, he anally raped me first and then he 

vaginally raped me, does that really matter? Does that really matter? Does that really 
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make them have zero credibility because they can’t remember which order it went in first

when he violated them?”

At the conclusion of closing argument, the court instructed with CALCRIM 

No. 3550: “Your verdict on each count and any special findings must be unanimous. 

This means that, to return a verdict, all of you must agree to it . . . [¶] . . . [¶] . . . If you 

are able to reach a unanimous decision on only one or only some of the charges, fill in 

those verdict forms only, and notify the court attendant.”

Discussion

The trial court must instruct, even in the absence of a request, on the general 

principles of law relevant to the issues raised by the evidence. These general principles 

refer to those principles closely and openly connected with the facts before the court, and 

necessary to the jury’s understanding of the case. (People v. Sedeno (1974) 10 Cal.3d 

703, 715.) We assess the jury instructions as a whole to determine whether there is a 

reasonable likelihood the jury misconstrued or misapplied its words. (People v. Campos 

(2007) 156 Cal.App.4th 1228, 1237.) We review the instructions de novo. (People v. 

Hamilton (2009) 45 Cal.4th 863, 948.)

“In a criminal case, a jury verdict must be unanimous. [Citations.] . . . [Citation.] 

Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. 

[Citation.] Therefore, cases have long held that when the evidence suggests more than 

one discrete crime, either the prosecution must elect among the crimes or the court must 

require the jury to agree on the same criminal act.” (People v. Russo (2001) 25 Cal.4th 

1124, 1132.)

The “ ‘requirement of unanimity as to the criminal act “is intended to eliminate the 

danger that the defendant will be convicted even though there is no single offense which 

all the jurors agree the defendant committed.” [Citation.] . . . [Citation.] “The 

[unanimity] instruction is designed in part to prevent the jury from amalgamating 
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evidence of multiple offenses, no one of which has been proved beyond a reasonable 

doubt, in order to conclude beyond a reasonable doubt that a defendant must have done 

something sufficient to convict on one count.” [Citation.]’ [Citations.]” (People v. 

Norman (2007) 157 Cal.App.4th 460, 464-465.)

According to defendant, when the prosecution has elected one act as the basis for 

each charged offense, the court must not give the unanimity instruction. Here, defendant 

claims, the prosecution elected on act as the basis for each count of forcible rape against 

K.K. and D.S. Therefore, the court erred in instructing the jury on unanimity. 

We find the evidence much more equivocal than defendant suggests. 

Defendant was charged with three counts of penetration involving K.K.: counts 

five, seven, and eight. The evidence at trial revealed eight possible acts: once or twice 

with a condom while she and defendant were in the car; once or twice with a condom 

while defendant was outside the car and she was leaning into the car; and the same four 

acts without a condom.

Defendant was also charged with two counts of forcible rape involving D.S.: 

counts nine and ten. The evidence at trial revealed three possible acts: with a condom 

while she was leaning into the car; without a condom while she was leaning into the car; 

or without condom when she was on her back.

Defendant attempts to discount this evidence, claiming it takes each version of 

K.K.’s narrative and pares them into “separate acts based on discrepancies like 

condom/no condom or inside car/leaning into car. K.K. never related eight possible acts 

occurring in any one of her narratives.” Defendant then admits K.K. gave these varying 

versions of events to the nurse examiner at the hospital and the responding officer. As 

for D.S., defendant notes the trial court described two incidents, one with a condom and 

one without, and the prosecutor agreed. However, given the fluidity and multiplicity of 
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the acts both victims testified to, the unanimity instruction appears to have been justified 

and merited by the evidence.2

CALCRIM No. 3500 requires the jury to unanimously agree that defendant 

committed at least one of the acts charged and unanimously agree which act defendant 

committed for each offense. CALCRIM No. 3515, also given, told the jurors to consider 

each count separately and return separate verdicts for each count. Given together, these 

instructions informed the jury that they needed to agree on the acts constituting each 

offense. We find no error.

Instructional Error: Modification of CALCRIM No. 1000

Defendant labels the court’s modification of CALCRIM No. 1000, setting forth 

the elements of forcible rape as “unnecessary, redundant, and argumentative.” 

Specifically, defendant objects to the court’s addition of the phrase: “A separate and 

distinct act of sexual intercourse occurs each time a new and separate penetration, 

however slight, occurs.”

Background

During jury instruction discussions, the prosecutor requested a modification of the 

pattern instruction, CALCRIM No. 1000, by adding a sentence to “illuminate the point 

that says -- or the principle that says, each rape is separate because it is a separate 

penetration.” Defense counsel objected to any modification, arguing the instruction 

already told jurors that sexual intercourse for purposes of rape meant any penetration, 

however slight, and the requested change highlighted the same language already in the 

instruction.

2

 Defendant also points to the prosecutor’s closing argument as proof the prosecution 

made an election as to the acts relied upon. However, elsewhere in his briefing defendant 

states: “Nor does ‘the prosecutor’s artful argument [ ] replace careful instruction.’ 

(People v.Malhado [(1998)] 60 Cal.App.4th [1529,] 1539.)”
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The court, after citing People v. Harrison (1989) 48 Cal.3d 321 (Harrison), agreed 

to the modification. The court instructed pursuant to CALCRIM No. 1000 and included 

the modification: 

“The defendant is charged . . . with rape . . . by force in violation of Penal Code 

section 261(a).

“To prove that the defendant is guilty of this crime, the People must prove that:

“1. The defendant had sexual intercourse with a woman;

“2. He and the woman were not married to each other at the time of the 

intercourse;

“3. The woman did not consent to the intercourse;

“AND

“4A. The defendant accomplished the intercourse by force, violence, duress, 

menace, or fear of immediate and unlawful bodily injury to the woman or to someone 

else.

“OR

“4B. The defendant accomplished the intercourse by threatening to retaliate in the 

future against the woman or someone else when there was a reasonable possibility that 

the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, falsely 

imprison, or inflect extreme pain, serious bodily injury, or death.

“Sexual intercourse means any penetration, no matter how slight, of the vagina or 

genitalia by the penis. A separate and distinct act of sexual intercourse occurs each time 

a new and separate penetration, however slight, occurs. Ejaculation is not required.”

Discussion

Defendant argues the court erred in modifying CALCRIM No. 10000 over defense 

counsel’s objection. He contends the added language was “not meant for instructing 
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jurors” and emphasized “the prosecution’s evidence that multiple rapes had occurred 

based on multiple penetrations.”

We find the modification to be an accurate statement of the law that did not 

mislead or inflame the jury. The trial court considered Harrison in crafting the 

modification. In Harrison, the defendant digitally penetrated the victim three times 

during a single incident which lasted only a few minutes. Each insertion lasted only a 

manner of seconds, since each time the victim was able to break free. (Harrison, supra,

48 Cal.3d at pp. 325-326.) The Supreme Court held that each sexual penetration that

occurred during the continuous assaultive encounter constituted a separate statutory 

violation. (Id. at p. 328) 

The modified instruction aided the jury in considering the testimony of the three 

victims as to each act of penetration. The instruction did not lessen the prosecution’s 

burden of proof or disadvantage the defendant. 

Instructional Error: Witness Testimony Instructions

The trial court instructed with CALCRIM No. 301, testimony of a single witness, 

and CALCRIM No. 1190, testimony of a witness in a sexual assault case. Defendant 

argues the court erred in giving CALCRIM No. 1190 because it is duplicative of 

CALCRIM No. 301.

Background

While discussing jury instruction, defense counsel argued that either CALCRIM 

No. 301 or CALCRIM No. 1190 be given, but not both. Counsel explained “1190 

encompasses everything and you don’t need 301.” The prosecutor pointed out that 

CALCRIM No. 301 covers all witnesses and the CALCRIM NO. 1190 applies to 

witnesses to sexual assault. The court noted a statement by a single witness favorable to 

the defense case and defense counsel agreed it made sense to give both instructions.
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The court instructed with CALCRIM No. 301: “The testimony of only one 

witness can prove any fact. Before you conclude that the testimony of one witness 

proves a fact, you should carefully review all the evidence.” The court subsequently gave 

CALCRIM No. 1190: “Conviction of a sexual assault crime may be based on the 

testimony of a complaining witness alone.”

Discussion

Defendant argues CALCRIM No. 1190 has “outlived its usefulness,” 

“impermissibly directs jurors to the nature of the crime rather than the nature of the 

evidence,” and “the combination of the two instructions has the potential to lighten the 

prosecution’s burden of proof through misrepresentation.” However, defendant also 

concedes the Supreme Court held otherwise in People v. Gammage (1992) 2 Cal.4th 693 

(Gammage).

In Gammage, the Supreme Court considered former CALJIC instructions which 

are substantially similar to the current instructions. The defendant argued giving both 

instructions created a preferential credibility standard for the complaining witness. The 

Supreme Court disagreed: “Although the two instructions overlap to some extent, each 

has a different focus. CALJIC No. 2.27 focuses on how the jury should evaluate a fact 

(or at least a fact required to be established by the prosecution) proved solely by the 

testimony of a single witness. It is given with other instructions advising the jury how to 

engage in the fact-finding process. CALJIC No. 10.60, on the other hand, declares a 

substantive rule of law, that the testimony of the complaining witness need not be 

corroborated. It is given with other instructions on the legal elements of the charged 

crimes.” (Gammage, supra, 2 Cal.4th at pp. 700-701.) 

The court rejected the defendant’s assertion that the instructions created a 

preferential credibility standard for the complaining witness or suggested the witness was 

entitled to special deference: “The one instruction merely suggests careful review when a 
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fact depends on the testimony of one witness. The other tells the jury there is no legal 

corroboration requirement. Neither eviscerates or modifies the other . . . [Citation.] 

. . . [Citation.] The instructions in combination are no less correct, and no less fair to 

both sides, than either is individually.” (Gammage, supra, 2 Cal.4th at p. 701.) 

The same reasoning applies in our case. CALCRIM No. 301 provides that the 

testimony of only one witness is necessary to prove any fact, but cautions that the jury 

must carefully review all the evidence. CALCRIM No. 1190 provides that the conviction 

of a sexual assault crime may be based on the testimony of a single witness, the victim. It 

does not negate the admonition that the jury consider all the evidence, nor does it accord 

the victim’s testimony special deference. We find no error.3

Prior Serious Felony Conviction

Defendant asserts it was impermissible for the jury, rather than the trial court, to 

determine that his prior conviction for section 246 constituted a serious felony. In 

addition, neither the jury nor the court made a finding that his prior conviction constituted 

a serious felony.

Background

The third amended information alleged defendant suffered a prior strike conviction 

in 1998 for a violation of section 246, discharge of firearm at dwelling or vehicle, a case 

in which defendant entered a guilty plea. The prosecution sought to prove the conviction 

was a serious felony based upon section 1192.7, subdivision (c)(8), personal use of a 

firearm, and section 1192.7, subdivision (c)(33), discharge of a firearm at an inhabited 

dwelling.

The court discussed with counsel whether the court or the jury would make the 

finding as to whether the prior conviction constituted a serious felony. Defense counsel 

3

 Since we find no error in the jury instructions given, we need not address defendant’s 

cumulative jury instruction error claim.
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argued that no documents be before the jury because the prosecution had not established 

that the prior conviction was a strike offense and the statute was not divisible. Counsel 

also argued that identity should be decided by the jury, not the trial court. The prosecutor

said he intended to submit the copy of the plea transcript, a certified copy of the plea 

form and complaint, and call a witness to explain the documents and a prison packet.

The trial court agreed it would review the documents “to determine whether or not 

it qualifies as a serious felony.” The court determined it could use the documents to 

determine whether the elements of the crime have been met, “including whether or not 

the transcript of the change of plea indicates as a factual basis that it was an inhabited 

dwelling.” The court found this would not be an “impermissible judicial fact finding, and 

that the jury does not need to hear the nature of the offense,” but the jury “would still 

have to determine that [defendant] suffered the prior conviction.”

The court again stated it would make the identity finding, and the jury would 

determine whether defendant suffered the prior conviction. The court requested that the 

prosecution “submit a certified copy of the change of plea transcript and whatever

approved documents . . . you wish the Court to consider to determine whether or not it 

qualifies as a serious felony.”

The prosecutor stated: “It is the People’s request that the issue of whether it was a 

serious felony factually or the factual basis for the 246 conviction I believe should go to 

the jury. [¶] The People are offering two theories on that that is reflected in the verdict 

form and the instructions and will be made -- asking them to make a unanimous decision 

on all of those findings. [¶] The -- the two theories are personal use of a firearm under 

1192.7(c)(8) and the 246 language which is under 1192.7, sub. (c)(33).”

The trial court held that, except for identity, “I think given the Court’s review of 

the transcript, given the alternative theories that the . . . People want to proceed under, I 

believe it’s best that this be reserved for the jury to make its factual finding.”
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The court instructed the jury: “The People have alleged in the Information that the 

defendant . . . was on March 17th 1998 . . . convicted of the crime of discharge of a 

firearm at a dwelling or vehicle, a violation of section 246 of the Penal Code, within the 

meaning of Section 667(a) of the Penal Code. [¶] The purpose of this part of the trial is 

for you to determine whether or not the People, after they present their evidence, have 

proven the truth of the allegation beyond a reasonable doubt.”

The prosecution presented testimony from a prosecutor in the district attorney’s 

office, Chris Carlson, who explained the prison packet, the minute order from the plea, 

the complaint, and the change of plea transcript.

The prison packet contained the abstract of judgment, detailing the crime for 

which defendant was previously convicted and the terms of imprisonment, and a 

fingerprint and photo page. The complaint charged defendant with shooting at an 

inhabited or occupied building. It also alleged the charge was a serious felony because 

defendant personally used a firearm. The abstract of judgment stated the conviction was 

for “discharge of a firearm, inhabited dwelling, et cetera.” Carlson stated “et cetera” 

referred to the different ways section 246 could be violated. Carlson also testified that, in 

1998, a serious felony under section 1192.7, subdivision (c)(8) could be committed by 

either personal use of a firearm or personal infliction of great bodily injury on another.

During jury instruction discussions, the trial court stated: “With respect to the 

Court modifying the jury instructions to eliminate any reference as to whether or not the 

Court is to make a finding of whether or not the two Penal Code sections -- 246 was a 

serious felony, the Court believes that it is the juror’s province to make a factual 

determination, and they are, in fact making a finding of whether or not the facts support a 

serious felony. [¶] But it is then the province of the Court to make a legal finding of 

whether or not the factual finding by the jury meets the legal requirement of whether or 

not it is a serious felony or not. [¶] In the Court’s opinion, the Defense is asking this 

jury to invade the province of the Court, and that is undertake a legal determination, 
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answer a question of law, not a question of fact. That is the reason why the Court 

modified the instruction and verdict forms as it did. [¶] . . . [¶] The jury’s goal and 

purpose here is simply to determine whether there was a conviction that was suffered by 

[defendant] and whether or not the People have proven the two theories.”

The prosecutor during closing argument stated defendant was guilty under both 

theories, but the jury need only unanimously find either defendant discharged a firearm at 

an inhabited dwelling, vehicle or aircraft or personally used a firearm in the commission 

of the crime in order to find the prior conviction allegation true. According to the 

prosecutor, “The only thing you’re deciding is was there a conviction?” and “The other

thing you’re deciding is, what was is based on?”

The court instructed the jury: “The People allege that the defendant has been 

convicted of a violation of Penal Code section 246 on March 17, 1998 . . . . [¶] In 

deciding whether the People have proved the allegation, consider only the evidence 

presented in this proceeding . . . [¶] . . . [¶] You must decide whether the evidence proves 

the following:

“1. Whether the defendant was convicted for a violation of Penal Code section 246 

on March 17, 1998 . . . .

“AND

“2. If you determine that the defendant . . . was convicted of a violation of Penal 

Code section 246, you must decide upon the following two theories:

“A. That the crime was based upon the discharge of a firearm at an inhabited 

dwelling, vehicle or aircraft; 

“B. The defendant . . . personally used a firearm in the commission of that crime.

“You must unanimously agree on which theory has been proved the People 

beyond a reasonable doubt.”

The jury unanimously agreed defendant suffered a prior conviction for section 246 

and that the offense had been committed by discharging a firearm at an inhabited 
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dwelling, vehicle, or aircraft, and that defendant had personally used the firearm to 

commit the crime.

Discussion

Defendant argues the serious felony prior strike finding runs afoul of People v. 

Gallardo (2017) 4 Cal.5th 120 (Gallardo). The court, not the jury, should have made the 

determination as to whether his prior conviction was a serious felony.

The Sixth Amendment contemplates that a jury, not the court, will find the facts 

underlying a conviction, when those facts lead to the imposition of additional 

punishment. (Gallardo, supra, 4 Cal.5th at p. 134.) Where the fact of conviction alone 

under a statute does not prove the offense was a serious felony, otherwise admissible 

evidence from the record of conviction may be examined to resolve the issue. (People v. 

Miles (2008) 43 Cal.4th 1074, 1082.) The court reviews the record of a defendant’s 

conviction to determine whether the crime qualifies as a serious felony for purposes of 

the sentencing laws. (Gallardo, supra, 4 Cal.5th at p. 124.) 

In Gallardo, the Supreme Court determined the limits of a trial court’s authority to 

make findings necessary to characterize a prior conviction as a serious felony. The 

defendant in Gallardo had a prior conviction for assault with a deadly weapon or with 

force likely to produce great bodily injury. Two possibilities arose: if the defendant 

committed the assault with a deadly weapon, the conviction was a strike; if the defendant 

committed the assault by any means of force likely to produce great bodily injury, the 

prior conviction was not a strike. The trial court considered the prior conviction 

preliminary hearing transcript to determine which of the two crimes the defendant had 

been convicted of. (Gallardo, supra, 4 Cal.5th at p. 124-126.)

The Supreme Court disapproved of the trial court’s actions. The court stated, 

“This means that a sentencing court may identify those facts it is ‘sure the jury . . . found’ 

in rendering its guilty verdict, or those facts as to which the defendant waived the right of 
19

jury trial in entering a guilty plea. [Citation.] But it may not ‘rely on its own finding’ 

about the defendant’s underlying conduct ‘to increase a defendant’s maximum 

sentence.’ ” (Gallardo, supra, 4 Cal.5th at p. 134.) However, “questions about the 

proper characterization of a prior conviction are for a court to resolve, based on its 

evaluation of the facts necessarily encompassed by the guilty verdict or admitted by the 

defendant in pleading guilty to the prior crime.” (Id. at p. 139, fn. 6.)

Our review of the record reveals the court followed the dictates of Gallardo. The 

court informed counsel, “[section] 246 was a serious felony, the Court believes that it is 

the juror’s province to make a factual determination, and they are, in fact making a 

finding of whether or not the facts support a serious felony.” The court followed with the 

statement that “But it is then the province of the Court to make a legal finding of whether 

or not the factual finding by the jury meets the legal requirements of whether or not it is a 

serious felony or not.” The court reiterated: “The jury’s goal and purpose here is simply 

to determine whether there was a conviction suffered by [defendant].”

Defendant acknowledges the trial court reserved the legal determination as its own 

decision. However, defendant argues the court never made such a decision.

Our review of the record reveals, at the very least, the trial court made an implicit 

finding that the prior conviction constituted a serious felony and sufficient evidence 

supported the finding. (People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17; People v. 

Chambers (2002) 104 Cal.App.4th 1047, 1050-1051.) The record of defendant’s prior 

conviction, entered into evidence, showed defendant entered a guilty plea to a violation 

of section 246 on March 17, 1998. The record also revealed the factual basis for the plea.

At sentencing, the court stated it had reviewed the entire record, which included 

the record of prior conviction. The court found the prior conviction serious.
20

Supplemental Briefing

In supplemental briefing, defendant requests remand for the trial court to exercise 

its discretion to strike or dismiss the four 5-year serious felony prior enhancements under 

amended section 667, subdivision (a). The People acknowledge the amendment applies 

retroactively, but argue no remand is necessary because the record reveals the court 

would not have exercised that discretion.

In February 2017 the trial court imposed the then mandatory term of five years for 

the serious prior felony convictions under section 667, subdivision (a) as to each of the 

three indeterminate terms (counts one, six, nine), consecutive and imposed one 5-year 

enhancement as to all determinate terms (counts two, three, five, seven, eight, nine, ten),

consecutive.

Section 667, subdivision (a)(1) provides for a five-year enhancement for a prior 

serious felony conviction when a defendant is convicted of a serious felony. Under prior 

law, the trial court had no discretion to strike an enhancement under the statute. Former 

section 1385, subdivision (b) stated “This section does not authorize a judge to strike any 

prior conviction of a serious prior felony for purposes of enhancement of a sentence 

under Section 667.” In September 2018 the Governor signed Senate Bill No. 1393 

(2017-2018 Reg. Sess.) and the law changed, ending the limitation on sentencing 

discretion by removing subdivision (b), effective January 1, 2019. (See Stats. 2018, 

ch. 1013, §§ 1, 2.)

The parties agree the amendment is retroactive under In re Estrada (1965) 

63 Cal.2d 740. Defendant argues remand is required for the trial court to exercise its 

discretion; the People argue no remand is necessary.

Remand for resentencing is not required if the record shows a trial court clearly 

indicated at the original sentencing it would not have stricken the enhancement even if it 

possessed the discretion. “The trial court need not have specifically stated at sentencing 

that it would not strike the enhancement if it had the discretion to do so. Rather, we 
21

review the trial court’s statements and sentencing decisions to infer what its intent would 

have been.” (People v. Jones (2019) 32 Cal.App.5th 267, 273.) 

Accordingly, we consider the trial court’s reasoning in sentencing defendant. The 

trial court denied defendant’s Romero4 motion, finding defendant had an extensive 

criminal record including juvenile adjudications. The trial court also noted defendant’s 

prior conviction was not remote in time and the current crime involved actual and 

threatened violence. After reviewing the circumstances of defendant’s sexual assaults, 

the trial court stated: “Each of the victims endured physical and psychological violence, 

as well as extreme physical violations committed by the defendant, as well as verbal 

threats to their safety.” The court found defendant’s prior conviction did not reflect “a 

single course of abhorrent conduct.” In denying the motion, the trial court considered 

defendant’s background. Defendant was 42 years old, illegally in the country, and had no 

known employment or personal history. The court also denied defendant’s request to 

impose concurrent indeterminate sentences.

The trial court subsequently sentenced defendant to full-term consecutive 

sentences under 667.6, subdivision (c) because the “crimes disclosed a high degree of 

cruelty, viciousness and callousness.” The court explained: “In each attack involving 

each of the three victims, they were brutally and violently raped and sodomized. They 

were subjected to other physical violence, including being choked, punched and placed in 

a headlock during the assaults. One of the victims . . . was raped while visibly pregnant. 

After the assaults, the defendant left two of the victims in deserted industrial areas, and 

. . . the third victim, ran away after the assault, but she had also been driven by the 

defendant to a deserted industrial area.”

4

 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
22

In sentencing defendant to the upper term on counts two, five, seven, eight, and 

ten of eight years on each count, doubled under three strikes to 16 years, the court found 

the crimes involved “clear planning, sophistication or professionalism” and defendant 

had “selected prostitutes or women who appeared to be prostitutes knowing that they 

were vulnerable and possibly would not be believable victims or witnesses to law 

enforcement.” The trial court denied defendant’s motion to dismiss the strike conviction 

due to the mandate imposed by section 667, subdivision (c)(7), but explained “if there is 

any doubt about the Court’s authority to impose consecutive sentences under Penal Code 

section 667(c)(7), the court would impose consecutive sentences on all counts.”

Prior to imposing sentence, the court stated: “While this trial occurred many, 

many months ago, nevertheless, the Court has in mind all the facts and circumstances and 

the testimony and evidence that was elicited throughout that trial. [¶] These were 

horrific crimes committed against the most vulnerable victims, women that you preyed 

upon because you thought they would not report to law enforcement. [¶] One of the 

victims . . . , was visibly pregnant while you violated her. [¶] [Defendant], it is now the 

time for you to answer for your crimes. You have no right or role to be in a civilized 

society, and you deserve to be punished, as the Court is going to punish you for your 

cruelty and despicable acts. [¶] I have no qualms about imposing the maximum sentence 

upon you. It is something you will have to answer for the rest of your life in prison.”

Given the court’s comments regarding defendant’s culpability, we find remand 

unnecessary. As in Jones: “Besides not exercising its discretion for leniency when it 

could have, the trial court made clear its intention to impose the most stringent sentence it 

could justifiably impose.” (Jones, supra, 32 Cal.App.5th at pp. 274-275.)
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DISPOSITION

The judgment is affirmed. 

 /s/

RAYE, P. J.

We concur:

 /s/

HULL, J.

 /s/

HOCH, J.