Filed 1/7/21 P. v. Reynoso CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALBERTO REYNOSO,

Defendant and Appellant.

B297989

(Los Angeles County

Super. Ct. Nos.

BA425009-10, BA425009-11)

THE PEOPLE,

Plaintiff and Appellant,

v.

GERARDO R. ROJAS,

Defendant and Appellant;

ALBERTO REYNOSO,

Defendant and Respondent.

B299317
2

CONSOLIDATED APPEALS from judgments of the 

Superior Court of Los Angeles County, Katherine Mader, Judge. 

Affirmed.

Susan Morrow Maxwell, under appointment by the Court of 

Appeal, for Defendant and Appellant and Defendant and 

Respondent Alberto Reynoso.

Jackie Lacey, District Attorney, Phyllis C. Asayama, 

Matthew Brown and John Niedermann, Deputy District 

Attorneys, for Plaintiff and Appellant.

Gloria C. Cohen, under appointment by the Court of 

Appeal, for Defendant and Appellant Gerardo R. Rojas.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael R. Johnsen and Theresa A. Patterson, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

All parties assert sentencing error in this case. The People 

allege the trial court abused its discretion when it struck several 

prior strike convictions of Alberto Reynoso and Gerardo Rojas in 

the interest of justice. Reynoso and Rojas contend the court erred 

when it imposed two 5-year serious felony sentence 

enhancements pursuant to Penal Code section 667, 

subdivision (a)(1).1 We conclude the trial court acted within the 

1 All undesignated statutory references are to the Penal 

Code.
3

scope of its discretion when it struck the prior strikes and 

imposed the sentence enhancements. We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Reynoso and Rojas were among 13 defendants in a large, 

multi-year criminal prosecution of Mexican Mafia members and 

affiliates alleged to have participated in an extortion ring 

involving the collection of “taxes” from gangs and within state 

prisons. In the first amended information, Reynoso and Rojas 

were charged with conspiracy to commit extortion (§§ 182, subd. 

(a)(1)), 520). This offense was alleged to have been committed for 

the benefit of, at the direction of, and in association with a 

criminal street gang pursuant to section 186.22, subdivisions 

(b)(1)(A) and (b)(4). Reynoso was alleged to have suffered three 

prior strike convictions, and Rojas two prior strike convictions, 

for the purposes of section 667, subdivision (a)(1) and the “Three 

Strikes” law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)).

Reynoso, Rojas, and another defendant were the final 

defendants to resolve the charges against them. Both Reynoso 

and Rojas entered open pleas

2 of no contest to the conspiracy 

charge, admitted one of the 72 overt acts alleged in the amended 

information, and admitted the gang enhancement and prior 

conviction allegations.

2 An open plea is one by which the defendant is not offered 

any promises. (People v. Williams (1998) 17 Cal.4th 148, 156 

(Williams).) The defendant “plead[s] unconditionally, admitting 

all charges and exposing himself to the maximum possible 

sentence if the court later chose to impose it.” (Liang v. Superior 

Court (2002) 100 Cal.App.4th 1047, 1055–1056.)
4

In March 2019 the trial court held a full-day sentencing 

hearing. The court had prepared independently for the hearing, 

advising counsel at the start of the hearing that “what I have 

done is looked at all the records, the public records, or the records 

in the court file, and have taken judicial notice of everything that 

is in the court files of all the 13 original defendants in this case.” 

The court explained, “I believe that my role for each of the 

defendants before me is to look at the seriousness of their conduct 

and their prior history and come up with an appropriate 

sentence. So in order for me to do that properly, I decided it 

would be appropriate for me to look at the prior history, the 

activities alleged in this case[,] and the sentence that was given 

to the other nine[3] defendants in that case. [¶] I have 

accumulated a number of records. Some are preliminary hearing 

transcripts from other proceedings. Some are prior records of 

prior cases, including the facts underlying some of the prior 

convictions for the defendants in front of me in their prior strikes. 

These are all court files.” The court made the materials it 

reviewed available to counsel.

The court first reviewed the roles played in the extortion 

ring by the defendants who had already been sentenced, as well 

as their sentences, because the court “believe[d] that my role here 

is to try to fit in . . . these defendants’ conduct in this case and 

their prior record with everything that happened to the other 

nine defendants who were charged with the same conspiracy to 

commit extortion.” The court conducted this review on the record 

3 One other defendant had entered into a plea agreement but 

had not been sentenced, and the court indicated this defendant 

did not enter into its sentencing analysis.
5

for the purposes of appellate review, because “any reviewing 

court would want to make sure that I did not make a decision 

that was completely out of whack.”

After discussing the previously-sentenced defendants’ 

conduct, criminal history, and sentences, the court turned to 

Reynoso. The court described in detail Reynoso’s conduct in the 

larger conspiracy: In January 2014, a high level Mexican Mafia 

member, Emiliano Lopez, instructed a confidential informant to 

contact Reynoso in Folsom State Prison because Reynoso was 

going to assume the job of collecting certain taxes; Reynoso told 

the informant he would collect money in the prison and send it to 

his wife, and also identified the people who would be collecting 

money in other prisons; the informant was informed in March 

2014 that Reynoso worked for Lopez; Reynoso’s wife told the 

informant she planned to send heroin into the prison at Reynoso’s 

request, and asked how much of the profit to give Lopez. In 

telephone calls Reynoso discussed money and money orders and 

inquired into an associate’s murder.

The court also recited Reynoso’s criminal history, including 

his three prior strikes. In 1990 he was charged with murder, 

which was reduced to manslaughter (§ 192), and sentenced to 

seven years in state prison. This conviction, his first strike, “had 

to do with the burglary of some cars with some other people, a 

fight with somebody else who may or may not also have been 

burglarizing cars. The defendant and his accomplices are alleged 

to have beaten the victim to death.” In 1996, Reynoso was 

sentenced to county jail for 180 days for misdemeanor vandalism. 

Also in 1996, he was sentenced to 32 months in prison for being a 

felon in possession of a firearm (§ 12021). He committed a 

Vehicle Code violation in 1998, and in 1999 he was sentenced to 
6

two years in state prison for assault with a deadly weapon other 

than a firearm (§ 245, subd. (a)(1)) for an incident arising out of a 

child custody dispute. The court considered this crime, Reynoso’s 

second strike, more serious than the short sentence would have 

suggested, as he had pursued the victim with a knife. Finally, in 

2002, Reynoso was sentenced to 18 years in state prison for 

making criminal threats (§ 422), his third strike, after he 

absconded from parole, fired a gun in the air, threatened to kill 

some people, and possessed a firearm and cocaine. The court 

concluded, “So that is what I have learned about Mr. Reynoso in 

terms of the facts of this case and his prior record,” and invited 

counsel to provide any other information for its consideration.

Reynoso’s counsel, who advocated for a sentence “in the low 

teens,” argued Reynoso was a late-comer and minimal participant 

in the criminal scheme, he was commanded to participate by a 

person connected to a main member of the Mexican Mafia, and he 

knew he would be in danger if he did not comply. “The extent of 

Mr. Reynoso’s involvement spans about five months that the 

People are able to document. The [money] transfers and the 

money order in total, I think, come out to somewhere in the $800 

range. And that’s the extent of his participation with this 

organization, solely to avoid being the victim and the target that 

some of the co-defendants . . . were when they didn’t want to 

quote, unquote, participate anymore.”

Reynoso’s counsel mentioned one codefendant who had 

actively participated in the criminal scheme, had a prior strike, 

and received an eight-year sentence, and another who was very 

involved in the crimes but had no prior strikes, who received six 

years. The court responded, “Well, you have to also be cognizant 

of the type of strikes. I mean, your client’s prior behavior and his 
7

18 years that he got for [making criminal threats] is on the top 

level of egregious prior behavior.”

Counsel agreed and said Reynoso accepted responsibility 

and did not mean to minimize his prior conduct. However, “[i]n 

this particular case the only real consequence that anybody is 

aware of is that [Lopez] would pay his kids money out of the 

money he collected. There was never any evidence that the 

money was going back into [the Mexican Mafia], back into buying 

firearms or narcotics or anything like that. [Lopez] was just 

sending the money to his family.”

Reynoso personally addressed the court, acknowledging his 

criminal history and asking the court to consider that he was 

young when he committed his crimes but was now 46 years old. 

When he was not in prison he had a steady job; he studied 

electrical work in trade school and was close to graduating; and

he dreamed of becoming an electrician. He worked with children, 

coached baseball, and was a father, grandfather, brother, and 

son.

The prosecutor advocated for a sentence of 30 years to life. 

He argued the person who instructed Reynoso to get involved in 

the criminal scheme was not a major Mexican Mafia player. 

While the prosecutor agreed Reynoso’s period of involvement was 

at the end of an investigation that lasted almost two years, and 

the total amount of money he was known to have collected was 

not very high, Reynoso was nonetheless “very much involved as a 

high associate within the Mexican Mafia, well[-]regarded and 

trusted.” He was “still in up to his neck in the Mexican Mafia 

trying to get ahead and working at it.” Striking prior strikes was 

not appropriate because Reynoso did not in any way fall outside 

the Three Strikes scheme: His prior strikes were violent. He 
8

participated in beating a man to death. While the prosecutor 

argued Reynoso deserved a 25-years-to-life sentence plus three 

5-year sentence enhancements, he could envision the court 

striking two of the three enhancements under section 667, 

subdivision (a) on the basis of Reynoso’s age.

The court then reviewed Rojas’s participation in the crime 

and his criminal history. Rojas had texted the confidential 

informant in 2013 about the collection of money, texted the 

informant that a team was “hungry and anxious to get at” others, 

texted “they would have fun with” a Pasadena gang if it did not 

cooperate, collected money from a Pasadena gang for Lopez in 

January 2014, and promised to get money “from every joint.” 

Rojas had committed vandalism as a juvenile in 1992. He was 

convicted of his first strike, assault with a firearm (§ 245, subd. 

(a)(2)), in 1995 after an altercation in which he shot someone in 

the face, and he received a three-year sentence. He committed 

more vandalism, then domestic violence, and in 2003, he 

committed an assault with great bodily injury with a gang 

allegation (§ 245, subd. (a)(1)), his second strike. Rojas’s 

subsequent crimes were of decreasing seriousness: driving under 

the influence, misdemeanor assault and concealed dirk or dagger, 

and a felony driving under the influence with prior conviction 

that resulted in a two-year sentence in 2013.

Rojas’s counsel described him as “overall . . . one of the 

least involved individuals” prosecuted and a “fungible” foot 

soldier rather than a planner of crime. Rojas’s involvement in 

the entire multi-year tax collection scheme lasted only three 

months. He had reported that his partners were not doing what 

they were supposed to do and wanted to take over collections for 

Pasadena. Rojas made a number of phone calls over the three 
9

months and collected $1,200. Counsel acknowledged the 

seriousness of the request to have “fun” with nonpaying parties 

but said Rojas was under pressure at the time. Counsel pointed 

out that other male defendants who were more actively involved 

in the conspiracy received sentences of between seven and 

13 years; while those defendants did not have two prior strikes, 

Rojas’s second strike was only a strike because it had been 

committed for the benefit of a gang. The female defendants had 

fared even better: they were integral parts of the conspiracy but 

one received a suspended sentence of eight years, and the other 

six or seven years.

Rojas’s counsel described the assault with a firearm as “a 

terrible offense,” but pointed out Rojas had been 18 years old at 

the time. Rojas’s drunk driving offenses reflected his problem 

with alcohol and being around other gang members. He was a 

hard worker who worked at a packing company for six months 

before his arrest. He lived at home when not in jail, and he was 

close to his family, who had been involved and supportive during 

the criminal proceedings. His family support and employment 

“show that he has some caring and some ability beyond [what] we 

usually see.” Rojas had been in jail for four years already, two of 

which were in “the hole” not because of bad behavior but due to 

policy; it took months to get him moved to the general population 

so he could get an education. Counsel was unaware of Rojas 

having any problems in county jail. In light of Rojas’s attempts 

to educate himself, his family support, his ability to work hard if 

he stayed sober, and the hard time he had already served, Rojas’s 

counsel asked the court to reach a sentence of “ten years by 

striking the prior, by finding the midterm or high term, and then 
10

by adding the lesser period of time for the gang involvement that 

will give it a serious crime.”

The prosecutor sought a 30-years-to-life sentence, arguing 

Rojas’s texts and calls showed he was “all in” and actively sought 

permission to use violence. He was “as helpful as he [could] 

possibly be” to the Mexican Mafia, and he knew what he was 

doing. Rojas’s conduct constituted multiple completed extortions. 

His criminal history was lengthy and serious. Rojas’s behavior 

was “not the actions or conduct of someone who falls outside the 

scope of the Three Strikes scheme.” As with Reynoso, Rojas’s age 

was in his favor, but the prosecutor argued reducing a sentence 

merely because of a defendant’s age was inappropriate. The 

prosecutor distinguished the conduct and criminal history of the 

defendants who received lighter sentences and said Rojas “st[u]ck 

out in terms of his conduct and the nature of his conduct” and his 

informed willingness to go the extra mile for the Mexican Mafia.

The court acknowledged its decision whether to strike a 

strike was a matter of discretion that had to be supported by 

reasons placed on the record. It found Reynoso and Rojas were 

entrenched associates of the Mexican Mafia who had engaged in 

criminal behavior for decades and had not outgrown the criminal 

behavior of their youth. “What I saw in looking at the records is 

that while even people whose activity seems to decrease over the 

years in seriousness, such as Mr. Rojas, he still was very actively 

tangled up and engaged in Mexican Mafia activity after his last 

non-serious offense, the DUI with the priors. I’m not saying it’s 

not serious, but nonviolent or gang-related type offense. So all of 

a sudden he’s back being involved in the Mexican Mafia again, 

which seems like everybody really was. [¶] And . . . all of our 

defendants are mature. They’re grown men. They may have 
11

gotten married, and they may have children and such, but this 

playing gang members has never really stopped. And it’s despite 

the fact that they have the love of their family and family 

members.” That love and support “has not really stopped the 

behavior.” The court opined the defendants would be associated 

with the Mexican Mafia for the rest of their lives. They had not 

debriefed or taken steps to disassociate.

The court said, “It is disturbing to me that—and I see this 

so often in the criminal justice system[]—that depending upon 

the prosecutor, depending upon the different head deputy, there 

are different ways of looking at cases that make tremendous 

differences in people’s lives. [¶] So some people who were 

charged in this case, who are just, to me, as hard-core as the 

defendants in front of me, they inexplicably received more lenient 

sentences.” The court acknowledged the devastating impact of 

the Mexican Mafia and other gang activity in many communities, 

and it said it was not reluctant to impose third sentences in third 

strike cases when appropriate. But in this case, the court said, 

“[w]e don’t have anybody who was assaulted or killed, or we don’t 

have a situation where there’s an act of violence that’s actually 

carried out. We have threats that are made by various people but 

not carried out. [¶] So while I really do consider the conduct to 

be very serious and threatening to everybody who wants to walk 

the streets, I can’t equate the people getting life sentences for 

murder and attempted murder and discharge of a gun by a gang 

member and great bodily injury and those sorts of things. I 

cannot relate this to conspiracy to commit extortion even in 

furtherance of a gang. [¶] The victims, quote, unquote, in this 

case are street gang members themselves. There’s never been, as 

I understand it, any specific victim who has been identified who 
12

has testified . . . they felt fear in a classic case of extortion unless 

they paid up to any of these . . . individuals.” 

Reynoso, the court said, had been sentenced to seven years 

for manslaughter in 1990. “And in order to reach the sentence 

that I am going to impose, which I believe is appropriate in this 

case, which would be 23 years, I do need to strike that strike.” 

While it was willing to strike the 1990 strike, the court said 

Reynoso’s later criminal threats strike “definitely should not be 

struck.”4 The court stated it would select the high term of four 

years for the extortion, double it pursuant to the Three Strikes 

Law, add the high term of four years for the gang enhancement 

allegation, and impose two 5-year enhancements for serious 

felony convictions, for a total of 22 years in state prison. The trial 

court indicated its intent to strike one of Rojas’s strikes and to 

select the high term for the extortion, doubled, plus the high term 

for the gang enhancement and two 5-year serious felony 

conviction enhancements, also a total of 22 years in prison.

The court imposed sentence at subsequent hearings. For 

Reynoso, the court imposed the 22-year sentence it had 

previously announced. After further argument, the court selected 

the mid-term sentence for Rojas rather than the high term 

sentence it had earlier indicated, “because I do believe that in 

weighing the responsibility of Mr. Rojas compared to everybody 

else in this case and understanding that he had two prior strikes, 

but also understanding that there has been a lengthy period of 

time since the last strike, that his last 16 years the crimes have 

4 The court did not mention Reynoso’s assault with a deadly 

weapon strike at this hearing but later clarified it was striking 

two strikes.
13

been decreasing in seriousness and basically as a result of alcohol 

abuse and the fact that the conversations that were recorded that 

we know about[,] at least[,] really were of a briefer period of time 

than some of the other defendants. I think that mid term on the 

underlying offense is appropriate.” Rojas was sentenced to 

20 years in prison.

The People and Reynoso appealed. Rojas joined Reynoso’s 

claim of sentencing error by filing a supplemental respondent’s 

brief.

DISCUSSION

I. Prior Strikes

In deciding whether to strike a prior strike conviction in 

the interest of justice (§ 1385), a trial court may not consider 

“factors extrinsic to the [Three Strikes] scheme, such as the mere 

desire to ease court congestion or, a fortiori, bare antipathy to the 

consequences for any given defendant.” (Williams, supra, 

17 Cal.4th at p. 161.) The 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 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 felonies.’ ” (People v. 

Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)

The People allege the trial court erred when it struck two of 

Reynoso’s prior strike convictions and one of Rojas’s prior strikes 

pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 

497. We review the trial court’s decision for abuse of discretion. 

(Carmony, supra, 33 Cal.4th at p. 376.) This standard of review 

“asks in substance whether the ruling in question ‘falls outside 
14

the bounds of reason’ under the applicable law and the relevant 

facts.” (Williams, supra, 17 Cal.4th at p. 162.) “In reviewing for 

abuse of discretion, we are guided by two fundamental precepts. 

First, ‘ “[t]he burden is on the party attacking the sentence to 

clearly show that the sentencing decision was irrational or 

arbitrary. [Citation.] In the absence of such a showing, the trial 

court is presumed to have acted to achieve legitimate sentencing 

objectives, and its discretionary determination to impose a 

particular sentence will not be set aside on review.’ ” Second, a 

decision will not be reversed merely because reasonable people 

might disagree. An appellate tribunal is neither authorized nor 

warranted in substituting its judgment for the judgment of the 

trial judge. “Taken together, these precepts establish that a trial 

court does not abuse its discretion unless its decision is so 

irrational or arbitrary that no reasonable person could agree with 

it.” (Carmony, at pp. 376–377.) Applying this standard, we find 

no abuse of discretion.

It is evident from the record the court invested considerable 

time and effort deciding the appropriate sentences for these 

defendants and exercised informed discretion in selecting their 

sentences. Prior to the sentencing hearing, the court collected 

and reviewed the defendants’ criminal history and examined 

their conduct and roles in the present matter, the conduct and 

roles of other defendants, and the outcomes for the other 

defendants. During the extensive sentencing hearing the court 

demonstrated a thorough knowledge of the relevant facts and 

sentencing considerations. 

Looking to Reynoso and Rojas’s personal characteristics, 

the court saw little redeeming value. The court understood the 

gravity of their criminal history, which in the case of Rojas did 
15

include crimes of decreasing seriousness, and it had little hope 

they would ever stop associating with the Mexican Mafia. In 

assessing the nature and circumstances of their present felonies 

and prior serious and/or violent felony convictions, however, the 

court concluded the concededly limited involvement of Reynoso 

and Rojas and their personal conduct in an ultimately nonviolent 

extortion racket restricted to gang members did not warrant 

subjecting them to 25-years-to-life sentences in prison. This 

analysis was appropriate under section 1385. The California 

Supreme Court has held in assessing the nature and 

circumstances of the defendant’s present felonies, “a trial court’s 

factual determinations with regard to the nature and 

circumstances of a defendant’s triggering offense may play a 

significant role in determining the sentence that is actually 

imposed upon the defendant under the Three Strikes law.” (In re 

Coley (2012) 55 Cal.4th 524, 560.) The California Supreme Court 

has also authorized trial courts to consider as part of the nature 

and circumstances of a defendant’s past and present convictions 

information “suggesting that the offenses were mitigated either 

in the manner of their commission (for example, an offense was 

committed in a less serious or violent manner than would 

normally be expected of such a crime) or in the level of 

defendant’s participation (for example, defendant played a 

subordinate role in the commission of the offense).” (People v. 

Wallace (2004) 33 Cal.4th 738, 753–754 (Wallace).)

Ultimately, the court concluded that although the 

defendants’ background, character, or prospects did not suggest 

they fell outside the ambit of the Three Strikes law, their conduct 

in the present case partially, though not completely, placed them 

outside its spirit. It sentenced them accordingly, with considered 
16

sentences reflecting their recidivism and gang membership: Both 

Reynoso and Rojas were sentenced as second-strikers, doubling 

the term they would otherwise have received; and the court chose 

the high term enhancement on the gang allegation and imposed 

multiple optional five-year sentence enhancements for their prior 

serious felony convictions. While other courts might not in the 

first instance have made the sentencing choices the trial court 

made, we cannot say striking Reynoso and Rojas’s prior strikes 

was “so irrational or arbitrary that no reasonable person could 

agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)

The People argue the trial court improperly struck the 

defendants’ strikes “because it believed a life sentence was not 

appropriate for ‘nonviolent’ conduct.” Characterizing the court as 

“impos[ing] its own additional requirements” to the Three Strikes 

law, they argue the trial court struck the strikes out of hostility 

to third strike sentencing and impermissibly reasoned backwards 

to achieve its preferred sentence in violation of People v. Dent

(1995) 38 Cal.App.4th 1726, 1731 (Dent). To support this 

argument, they rely primarily on two trial court comments. 

First, the court said it could not “equate” life sentences for 

murder and other violent crimes to a conspiracy to commit 

extortion, even one committed for the benefit of a gang. Second, 

after the trial court mentioned Reynoso’s manslaughter 

conviction, it said that “in order to reach the sentence that I am 

going to impose, which I believe is appropriate in this case, which 

would be 23 years, I do need to strike that strike.”

The court’s comments must be understood in context. 

Immediately before making the statements on which the People 

rely, the court stated it had no antipathy toward third strike 

cases and had imposed third strike sentences in the past. The 
17

court then described the facts and circumstances of the present 

offense: The defendants’ conduct was “very serious and 

threatening” to the community, but at the same time, there were 

no assaults; there was no violence; the “victims, quote, unquote,” 

of the crime were gang members themselves; and there had never 

been evidence any victim experienced fear of what would happen 

if he or she did not pay Reynoso or Rojas. The court’s reference to 

equating crimes, made in the course of describing the particular 

attributes of this offense, appears in context not to be a 

pronouncement that conspiracy to commit extortion could never 

warrant a life sentence, as the People suggest, but an explanation 

why this particular conspiracy to commit extortion, given its 

characteristics, was mitigated in the manner of its commission, 

justifying the court’s decision to strike some of the defendants’ 

strikes. (Wallace, supra, 33 Cal.4th at pp. 753–754.) “A court 

might . . . be justified in striking prior conviction allegations with 

respect to a relatively minor current felony, while considering 

those prior convictions with respect to a serious or violent current 

felony.” (People v. Garcia (1999) 20 Cal.4th 490, 499.)

Having discussed its reasons for striking some strikes, the 

court then announced the sentence for each defendant 

individually, identifying which specific strikes it intended to 

strike and how it calculated each sentence. While the court’s 

reference to needing to strike one of Reynoso’s strikes could be 

interpreted as indicating an impermissible intent, it may also be 

understood as an end-of-day shorthand combining the court’s 

already-explained intent to strike some of Reynoso’s strikes with 

a statement of its desire to impose a heavy sentence that took 

into account his recidivism and his gang activity through second 

strike sentencing, high terms for the offense and the gang 
18

enhancement, and enhancements for his prior serious felonies. 

We understand the court to have been saying this was the 

sentence it believed appropriate for Reynoso based on the 

considerations previously articulated; this was how the court 

arrived at it; and this was the ruling to be made to effectuate it, 

including identifying the strike it had selected to strike.5 This 

interpretation is consistent with the court’s statement, made 

shortly thereafter, identifying another of Reynoso’s strikes as one 

it concluded “definitely should not be struck.” “In the absence of 

a clear showing that its decision was arbitrary or irrational, a 

trial court should be presumed to have acted to achieve 

legitimate objectives and, accordingly, its discretionary 

determinations ought not be set aside on review.” (People v. 

Preyer (1985) 164 Cal.App.3d 568, 573–574.)

We disagree with the People that this case is akin to Dent, 

supra, 38 Cal.App.4th at page 1731. In Dent, the trial court 

failed to exercise its discretion: it disregarded the defendant’s 

background and the nature of his offenses, imposing sentence not 

on the basis of individualized consideration but in an express 

effort to circumvent the Three Strikes law. (Ibid.) In contrast, 

here the trial court extensively examined the defendants’ 

backgrounds, character, and prospects, the nature of their prior 

offenses, and the details of their present offense and the current 

case. It “focuse[d] on considerations that [we]re pertinent to the 

specific defendant being sentenced.” (Ibid.)

5 The two-strike sentence selected by the court was only 

available if the court struck two strikes; later, when imposing 

sentence, the court struck two of Reynoso’s prior strikes.
19

The People argue comparing Reynoso and Rojas with the 

previously-sentenced defendants was not appropriate because 

Reynoso and Rojas, as third-strike defendants, were differently 

situated, but the trial court’s comments indicate it was aware of, 

and took into account, this distinction between Reynoso and 

Rojas and the other defendants, as well as the conduct 

underlying their strike convictions; and in recognition of this 

difference it imposed longer sentences on Reynoso and Rojas than 

the other defendants had received. The People also contend the 

court should not have stricken strikes here because “it is 

arguable,” though not established by authority, that the crime of 

conspiracy to commit extortion with a gang allegation is 

punishable with a life sentence, and because the Three Strikes 

law previously has been reformed to limit the availability of third 

strike sentences. These arguments illustrate the People’s 

disagreement with the trial court’s reasoning but do not establish 

any abuse of discretion. We may not substitute our judgment 

for that of the trial court. (Carmony, supra, 33 Cal.4th at 

pp. 376–377.) 

II. Five-Year Sentence Enhancements

Reynoso and Rojas argue the trial court lacked authority to 

impose five-year serious felony enhancements pursuant to section 

667, subdivision (a)(1). We disagree.

Section 667, subdivision (a)(1) provides for the imposition of 

a consecutive five-year sentence enhancement for any person 

“convicted of a serious felony who previously has been convicted 

of a serious felony.” Section 1192.7, subdivision (c), lists serious 

felonies; although conspiracy to commit extortion is not among 

the specifically enumerated felonies, the statute also provides 

that “any felony offense, which would also constitute a felony 
20

violation of Section 186.22” is a serious felony. (Id., subd. (c)(28).) 

In People v. Briceno (2004) 34 Cal.4th 451, 459 (Briceno), the 

California Supreme Court held “section 1192.7(c)(28) includes 

within its ambit any felony offense committed for the benefit of a 

criminal street gang under the section 186.22(b)(1) gang sentence 

enhancement.” Because Reynoso and Rojas each admitted a gang 

allegation under section 186.22, subdivision (b)(1), their 

convictions for conspiracy to commit extortion qualified as serious 

felonies for the purposes of section 667, subdivision (a)(1). 

In Briceno, the court held that “while it is proper to define 

any felony committed for the benefit of a criminal street gang as 

a serious felony under section 1192.7[, subdivision] (c)(28), it is 

improper to use the same gang-related conduct again to obtain an 

additional five-year-sentence under section 186.22[, subdivision] 

(b)(1)(B).” (Briceno, supra, 34 Cal.4th at p. 465.) The improper 

bootstrapping and double punishment with which the Briceno

court was concerned did not occur here. The trial court did not 

impose a serious felony sentence enhancement under 

section 186.22, subdivision (b)(1)(B) in addition to deeming the 

crime a serious felony. It deemed the crime a serious felony, 

imposed the gang enhancement applicable to any felony, and 

imposed two sentence enhancements under section 667, 

subdivision (a) because the instant offense was a serious felony 

and each defendant had prior serious felony convictions.

Reynoso and Rojas rely on Briceno to argue a gang 

enhancement only allows an offense to be treated as a serious 

felony in a future proceeding, not in the current proceeding. This 

argument reads Briceno too broadly and was rejected in People v. 

Bautista (2005) 125 Cal.App.4th 646, 656: “[W]hile Briceno does 

make a distinction between current and former offenses 
21

enhanced by gang findings, the opinion holds only that a court is 

not permitted to ‘bootstrap’ a current felony with a gang 

enhancement into both a serious felony for purposes of section 

667, subdivision (a) and a felony subject to the five-year 

additional sentence prescribed by section 186.22, subdivision 

(b)(1)(B).” The California Supreme Court has cited Bautista with 

approval and has rejected arguments that “overstate[] the scope” 

of the Briceno decision. (People v. Jones (2009) 47 Cal.4th 566, 

573–574.) The trial court did not err when it imposed sentence 

enhancements under section 667, subdivision (a)(1).

DISPOSITION

The judgments are affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

WILEY, J.