1

Filed 11/17/21 P. v. Floyd 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

JEFFREY VAUGHN FLOYD,

Defendant and Appellant.

C089078

(Super. Ct. No. 17FE019822)

A jury found defendant Jeffrey Vaughn Floyd guilty of felon in possession of a 

firearm, along with a gang enhancement for committing the crime for the benefit of and 

in association with a criminal street gang. With a strike and recidivist enhancements, he 

was sentenced to an aggregate thirteen-year term. 

Defendant contends insufficient evidence supported the gang enhancement. As to 

that contention, we consider whether, as defendant asserts, his possession of a firearm by 

a rap artist during the creation of a rap video was intended to facilitate defendant’s art and 

thus was not possessed for the benefit of and/or in association with a criminal street gang 
2

with the intent to promote, further or assist in any criminal conduct by gang members. 

We conclude this is not an either-or proposition — both can be true. A gang member can 

have multiple motives for his conduct and those motives can be both personal and gangrelated. Accordingly, we conclude substantial evidence supports the gang enhancement 

here. 

We, however, agree with defendant’s other contentions concerning Senate Bill No. 

136 (2019-2020 Reg. Sess.) (Senate Bill No. 136) and Senate Bill No. 1393 (2017-2018 

Reg. Sess.) (Senate Bill No. 1393). We thus strike the one-year prison term imposed 

under Penal Code section 667.5, subdivision (b)1 and remand for resentencing so the 

court may consider whether to exercise its discretion to strike or dismiss defendant’s

section 667, subdivision (a) enhancement in furtherance of justice under section 1385, 

subdivision (a) 

We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Prosecution’s Evidence 

The Charged Incident

On October 23, 2017, multiple gang suppression officers arrived at an apartment 

complex in Sacramento to execute a felony arrest warrant on Clarence Starnes. The

complex was in an area known to be occupied and frequented by members of the Trigga 

Mob gang. When the officers arrived, five men, including defendant, took off running. 

Defendant, Starnes, Legend Lewis, Kenneth Andrews, and Coddie Williams were 

ultimately arrested. Three loaded handguns were recovered from the opposite side of a 

1

 Undesignated statutory references are to the Penal Code in effect at the time of the 

charged offenses.
3

nearby fence — a .45-calibersemiautomatic and two nine-millimeter semiautomatics.

2

 A

loaded nine-millimeter semiautomatic was found on Lewis. 

Recovered from Williams was a GoPro video camera containing videos clips 

recorded that day at the apartment complex. In one video clip, defendant is depicted 

holding a handgun and taking apparent direction from someone behind the camera to put 

the gun in his pocket and pull it out on cue. The gun defendant held was one of the guns 

found on the other side of the fence. Another clip depicts a simulated robbery and 

shooting. It begins with Starnes taking a backpack off his back, opening it up and 

showing the contents to defendant and Andrews. Defendant then removes a handgun 

from the backpack in an apparent theft. Starnes then runs around the corner of a building,

and defendant and Andrews chase Starnes simulating a shooting as Starnes falls to the 

ground. Another clip shows the chase from the opposite direction and Andrews pointing 

a handgun as he runs. In another clip, defendant is seen rapping with several men behind 

him at the corner of the building where the simulated robbery/shooting took place. Lewis 

and Andrews brandish handguns in the background while defendant counts a stack of 

money and raps. 

The Gang Expert Testimony

At trial, several gang experts testified, providing the following testimony. 

Defendant, Starnes and Andrews are Trigga Mob gang members.3 The area where the 

arrest took place is “dominated by” Trigga Mob. The primary activities of Trigga Mob

are robbery, felon in possession of a firearm, assaults with firearms and other firearm2

 Defendant was charged with possessing the three handguns found on the opposite side 

of the fence. The prosecution argued that they were jointly possessed by defendant and 

other gang members. 

3

 Regarding defendant, in summary, the expert based his opinion on defendant’s 

association with Trigga Mob gang members, posting videos that contain gang-related 

indicia, and defendant displaying gang-related hand signs in those videos. 
4

related crimes. The “three main pillars” of Trigga Mob are generating revenue through 

legal and illegal means, power, and respect. The gang’s power comes from possessing 

firearms and having influence in the community “so that way they can get away with 

their criminal activities without the threat of community members calling the police.” 

They gain respect by their activities and the crimes they commit causing intimidation and 

fear in the community and other gang members. 

One of the primary means of communication between rival gangs in Sacramento is 

through rap music videos. Rap music glorifying and bragging about gang violence is 

central to Sacramento gangs. Sacramento gangs post rap videos online to call out other 

gangs and to claim themselves as more violent. Gangs will also brag online about 

crimes, violence, and shootings 

Trigga Mob made a number of rap videos at the apartment complex where the 

arrests took place. In the videos, Trigga Mob gang members disrespect rival gangs. In

the three years preceding the charged incident, numerous YouTube videos and Facebook 

photos were posted on the Internet featuring defendant, referencing gang-related 

incidents and insulting rival gangs. And in one video, defendant pledges allegiance to 

“my organization,” which the expert opined was Trigga Mob. 

Trigga Mob has been involved in back and forth videos with rival gangs. A “dis” 

rap video would be released and the rival gang would respond with violence and then rap 

about what they had done and “throw a dis back towards the other side.” And because of 

the violence, gang members armed themselves with firearms so they would not “get

caught slippin.”

One expert opined on the meaning of several lyrics in the video recovered on the 

day of the arrest. Defendant’s lyric, “ ‘All that money we was makin’, even if we have to 

strip a nigga naked we would do it,’ ” referenced an assault that occurred five days before 

the charged incident, where Trigga Mob members assaulted a member of a rival gang. 

As to the lyric “ ‘Gucci on the plate for the pistol like it’s the fashion, south sac, back to 
5

back, Trigga,’ ” the expert opined that “Gucci” is a reference to the two-G symbol for 

Gucci which is associated with the Guttah Gas gang, a Trigga Mob ally; “Trigga” 

referred to the Trigga Mob gang. 

In response to a hypothetical based on the facts of this case, an expert opined that 

defendant possessed the charged firearms for the benefit of the Trigga Mob gang and in 

association with Trigga Mob gang members. 

Regarding gang benefit, the demonstration of firearm possession in music videos

benefits Trigga Mob because it shows the gang’s ability to get firearms as well as its 

ability to commit violent crimes as a group. This increases the gang’s influence in the 

community and its ability to continue criminal activities without community members 

calling the police. For example, the video that the gang suppression unit interrupted 

involving a simulated robbery and shooting “showcase[d] the kind of behavior that they 

would participate in with that firearm.” It also showed the ability of the gang to commit 

acts of violence as a group. 

Regarding gang association, the firearm possession here was in association with 

Trigga Mob because there were multiple validated Trigger Mob members at the video 

shoot. And “[t]here are multiple members who are in possession of firearms illegally, 

whether it be due to the firearm itself, the condition that it’s in, being that they’re loaded, 

being that they’re unregistered, being that they’re being concealed in public.” 

Defense Evidence

The defense maintained that defendant’s firearm possession was merely a prop 

used to further his rap career, and he was not possessing it to promote Trigga Mob. The 

defense presented evidence that in the 11 months preceding the incident, defendant was 

living with his father and attending a music school in Riverside. Aside from the day of 

his arrest in the charged incident, defendant had not traveled to Sacramento since moving 

south. 
6

Verdict and Sentencing

The jury found defendant guilty of possession of a firearm by a felon (Pen. Code,

§ 29800, subd. (a)(1)) and found true a street gang enhancement (§186.22, subd. (b)(1)). 

The trial court found that defendant had suffered a prior serious felony conviction (§ 667, 

subds. (a)) and had served a prior prison term for unlawful possession of a firearm 

(§ 667.5 (b)). 

The trial court sentenced defendant to an aggregate 13-year term, calculated as 

follows: four years for possessing a firearm (the middle term doubled for the strike), plus 

the three-year middle term for the gang enhancement, five years for the prior serious 

felony enhancement, and one year for the prior prison term enhancement. 

DISCUSSION

I. Sufficiency of the Evidence Supporting the Gang Enhancement

Defendant challenges the sufficiency of the evidence supporting the gang 

enhancement. He argues insufficient evidence established that his possession of the gun 

benefited a criminal street gang or that he committed the act with the requisite intent to 

promote any criminal conduct by gang members. He argues “it is clear that [defendant’s]

intention in possess[ing] the firearm was to promote himself as a rap artist.” He further 

maintains that “no specific evidentiary support” underlay the gang expert’s opinion that 

he possessed a firearm in the videos to benefit the Trigga Mob gang, and he notes that he 

did not display gang signs, engage in gang graffiti, or wear clothing promoting Trigga 

Mob in the video recorded on the day of his arrest. Defendant argues he is a victim of 

guilt by association. We conclude that the evidence — which includes defendant’s rap 

videos promoting the gang — sufficed to support the jury’s gang enhancement finding.

The gang enhancement requires that the prosecution establish: (1) the crime was 

“committed for the benefit of, at the direction of, or in association with any criminal 

street gang,” and (2) the crime was committed “with the specific intent to promote, 

further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1); 
7

People v. Albillar (2010) 51 Cal.4th 47, 59 (Albillar); People v. Ramirez (2016) 244 

Cal.App.4th 800, 818; People v. Rios (2013) 222 Cal.App.4th 542, 561.) We refer to 

these two prongs as the “gang-related prong” and the “specific intent prong.” (Ramirez, 

at p. 818.) 

As this court has previously noted, “[t]here is no requirement that the defendant be 

an active or current member of the gang to establish the enhancement under section 

186.22, subdivision (b)(1).” (People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 539.)4

But gang membership is “circumstantial evidence establishing that the crime was gangrelated and a motive for why a defendant may have harbored the ‘specific intent to 

promote, further, or assist in any criminal conduct by gang members.’ ” (Ibid.) 

As to the gang-related prong, “ ‘[e]xpert opinion that particular criminal conduct 

benefited a gang’ . . . can be sufficient to support [a] gang enhancement.” (People v. 

Vang (2011) 52 Cal.4th 1038, 1048 (Vang).) And expert opinion that such conduct 

“benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the 

inference that the conduct was ‘committed for the benefit of . . . a[] criminal street 

gang’ . . . .” (Albillar, supra, 51 Cal.4th at p. 63.) 

As to the specific intent prong, courts recognize thatspecific intent to promote, 

further, or assist, “usually must be inferred from the facts and circumstances surrounding 

the offense” and is rarely “susceptible of direct proof.” (Rios, supra, 222 Cal.App.4th at 

pp. 567-568.) And “if substantial evidence establishes that the defendant intended to and 

did commit the charged felony with known members of a gang, the jury may fairly infer 

that the defendant had the specific intent to promote, further, or assist criminal conduct 

by those gang members.” (Albillar, supra, 51 Cal.4th at p. 68.)

4

 Defendant asserts he is not a Trigga Mob gang member and the evidence was 

insufficient to establish he is. We disagree that the evidence was insufficient in this 

regard, but even if it was, given the other evidence, that deficiency would not alter the 

result.
8

On appeal, we review the sufficiency of the evidence supporting a gang 

enhancement “in the light most favorable to the judgment to determine whether it 

contains substantial evidence.” (Albillar, supra, 51 Cal.4th at p. 60.) Substantial 

evidence includes circumstantial evidence and the reasonable inferences allowed 

therefrom. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) “If the circumstances 

reasonably justify the trier of facts’s findings, reversal of the judgment is not warranted 

simply because the circumstances might also reasonably be reconciled with a contrary 

finding.” (Albillar, at p. 60.) In other words, “ ‘[a] reversal for insufficient evidence “is 

unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient 

substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Penunuri (2018) 5 

Cal.5th 126, 142 (Penunuri.))

Here, substantial evidence supports both prongs of the gang enhancement. As to 

the gang related prong, the evidence supports two section 186.22, subdivision (b) 

theories: “for the benefit of” and “in association with.” And only one theory need be 

proven to support a true finding on the enhancement. (People v. Morales (2003) 112 

Cal.App.4th 1176, 1198 [only one of the three gang-related prong theories need be 

proven — the crime was committed “(1) for the benefit of, (2) at the direction of, or (3) in 

association with a gang”].)

As for the “for the benefit of” theory, there was expert testimony that possessing 

firearms in music videos posted on the Internet showed Trigga Mob’s ability to acquire 

firearms and to commit violent acts as a group. Indeed, the video defendant and the other 

Trigga Mob gang members were recording when interrupted by gang suppression officers 

“showcased[d]” behavior they would engage in with firearms. And it demonstrated their 

ability to commit acts of violence as a group. This increases the gang’s influence in the 

community and fosters an environment where community members are intimidated and

unwilling to call the police. That testimony, along with video evidence of defendant and 

other Trigga Mob members possessing and brandishing concealable firearms supports the 
9

jury’s finding that defendant’s gun possession was committed for the benefit of a gang.

(See People v. Vang, supra, 52 Cal.4th at p. 1044 [gang experts may testify about the 

culture and habits of gangs]; Albillar, supra, 51 Cal.4th at p. 63 [relying on expert 

opinion that reports of violent conduct by way of mainstream media or word of mouth 

benefited the gang by raising the level of fear and intimidation in the community].)

5

The evidence also satisfies the gang related prong under a “in association with” 

theory. Defendant indisputably possessed a firearm in the presence of known Trigga 

Mob gang members. Indeed, during one of the video clips, defendant is depicted as 

taking physical possession of one of the guns from a backpack carried by Starnes, another 

Trigga Mob gang member. In this scene Andrews, also a Trigga Mob gang member, had 

a concealed firearm as well. Thus, substantial evidence supported a finding that 

defendant and fellow gang members “came together as gang members” to jointly possess 

the firearms used in the video. (See Albillar, supra, 51 Cal.4th at p. 62 [concluding that 

there was substantial evidence codefendant gang members “came together as gang 

members” to commit sexual assault crimes and thus “they committed these crimes in 

association with the gang”]; Morales, supra, 112 Cal.App.4th at p. 1198 [“The jury could 

5

 Defendant points to two cases finding insufficient evidence to support a gang 

enhancement: People v. Ochoa (2009) 179 Cal.App.4th 650, 653, 662 [insufficient 

evidence supported first prong, where defendant acted alone in committing a carjacking 

and the offense did not occur in his gang’s territory] and In re Daniel C. (2011) 195 

Cal.App.4th 1350, 1361-62 [insufficient evidence supported second prong where 

defendant robbed a liquor store alone after his companions, known gang members, had 

left]. Defendant argues a similar lack of evidence exists here. We are unpersuaded. For 

one, in those cases, the defendants acted alone, while here defendant jointly possessed 

guns with Trigga Mob members. For another, a review for substantial evidence 

“necessarily calls for analysis of the unique facts and inferences present in each case, and 

therefore comparisons between cases are of little value.” (People v. Rundle (2008) 43 

Cal.4th 76, 137-138). In other words, the substantial evidence standard of review 

requires that we look at the totality of circumstances in the case before us to determine 

whether there is substantial evidence, and not merely make a side-by-side comparison 

with other cases regarding evidence that supported or failed to support a finding of 

substantial evidence in those other cases.
10

reasonably infer the requisite association from the very fact that defendant committed the 

charged crimes in association with fellow gang members”].) 

The specific intent prong — intent to promote, further, or assist gang member 

criminal conduct — is also supported by substantial evidence. For this prong, we first 

identify what criminal conduct was promoted, furthered, or assisted. Here, we need look 

no further than the illegal possession of firearms.

6

 Defendant possessing a firearm in one 

video clip in the presence of other Trigga Mob gang members, and taking possession of a 

concealed firearm from a Trigga Mob gang member in another clip, establishes his intent

to promote, further, or assist gang members in carrying concealed firearms, possessing 

loaded and unregistered firearms, and possessing firearms as felons. (§§ 25400, subd. 

(a)(2), subd. (c)(1), (c)(6); 29800, subd. (a)(1).) Then after possessing the gun, defendant 

rapped, referencing the gang and an ally gang, with Trigga Mob members behind him 

flashing their gang’s signs and derogatory signs to rivals and brandishing guns. This 

satisfied the specific intent prong. (See Morales, supra, 112 Cal.App.4th at pp. 1198-

1199 [defendants’ “intentional acts, when combined with [their] knowledge that those 

acts would assist crimes by gang members, afforded sufficient evidence of the requisite 

specific intent”].) 

Additionally, a gang expert testified about past videos in which defendant 

appeared with Trigga Mob gang members, spoke of Trigga Mob, and personally flashed 

gang hand signs. In one video, defendant pledged his allegiance to his “organization,” 

which an expert opined was a reference to Trigga Mob. The evidence of these prior 

videos, which served to promote the gang, provided additional support that the charged 

6

 As our high court has noted: “[T]he scienter requirement in section 186.22(b)(1) —

i.e., ‘the specific intent to promote, further, or assist in any criminal conduct by gang 

members’ — is unambiguous and applies to any criminal conduct, without a further 

requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense 

of conviction sought to be enhanced.” (Albillar, supra, 51 Cal.4th at p. 66.)
11

firearm possession was committed with the specific intent to promote criminal conduct 

by the gang. 

Defendant’s argument that he possessed the gun to promote himself as a rap artist 

and not to promote the gang is unavailing.

7 Self-promotion as a rap artist does not 

preclude the jury from finding defendant also intended to promote, further, or assist 

Trigga Mob. Nothing in the gang enhancement statute requires a defendant’s motive to 

be strictly gang-related. Indeed, a gang member may harbor multiple motives —

personal and gang-related — when committing crimes.8 The fact that a gang member 

may have personal motives in addition to a gang-related motive does not negate the 

requisite specific intent. 

Moreover, defendant’s argument ignores our standard of review. We review for 

substantial evidence, looking at the evidence in a light most favorable for the judgment.

(Albillar, supra, 51 Cal.4th at p. 60.) When the circumstances reasonably justify the 

jury’s findings, reversal “is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding.” (Ibid.) And this case is certainly not 

one where “upon no hypothesis whatever is there sufficient substantial evidence to 

support the jury’s verdict.” (Penunuri, supra, 5 Cal.5th at p. 142.) 

Finally, arguing that the rap lyrics cannot be used as evidence because they 

purportedly have little probative value, defendant relies on In re George T. (2004) 33 

7

 As we have noted, all the guns seized by the gang suppression officers were loaded. 

Given the fact that they were loaded, the argument that they were just “props” for the 

video hardly seems credible.

8

 Albillar, supra, 51 Cal.4th 47, is a good example, where the defendants had dual 

motives. In that case, three gang members raped a teenage girl. (Id. at pp. 51-53.) It is 

apparent that they had at least two motives – personal sexual gratification and to benefit 

the gang.
12

Cal.4th 620 (George T.).

9

In George T., the minor was found to have made criminal 

threats based on a poem he wrote. (Id. at pp. 624, 629.) On appeal, our high court found 

the lyrics ambiguous and not amounting to a criminal threat. (Id. at p. 636.) Here, 

defendant argues that, like the poem, his rap lyrics cannot be used as evidence absent 

some meaningful way to determine that they are true. We are unpersuaded. 

The crime of criminal threats in George T. arose from a poem, while here the 

criminal conduct was possessing guns. The rap lyrics were circumstantial evidence of the 

crime’s connection to the gang and defendant’s specific intent while possessing the gun. 

And the videos themselves were visual evidence of defendant’s gun possession and the 

gang engaging in one of its primary activities — illegal possession of firearms. And as 

for defendant’s argument related to the absence of evidence that the lyrics were true, we 

note that courts have relied on rap lyrics as circumstantial evidence of intent. (See e.g. 

People v. Zepeda (2008) 167 Cal.App.4th 25, 35 [rap song recordings were probative of 

defendant’s loyalty to a criminal gang, the gang’s motive and intent to kill rivals as well 

as defendant’s motive and intent]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1373 

[handwritten rap lyrics properly admitted because they showed defendant’s familiarity 

with gang culture, loyalty to the gang, motive and intent].)10 Moreover, a rap lyric that 

9

 Defendant does not challenge the admissibility of the videos on appeal, probably 

because no such objection was made in the trial court. We understand his argument on 

appeal to be that we should not give this evidence any weight in the substantial evidence 

analysis.

10 The instant case is distinguishable from People v. Coneal (2019) 41 Cal.App.5th 951, 

where similar arguments were made in connection with an evidentiary challenge, but 

which is conspicuously absent from defendant’s briefing. In Coneal, the defendant was 

charged with murder. (Id. at p. 953.) The prosecution played rap videos made before the 

murder depicting defendant’s gang and a rival gang bragging about violence they had 

committed or intended to commit. (Id. at p. 954.) The court, for multiple reasons, 

concluded the videos should not have been admitted. For one, citing George T., supra,

33 Cal.4th at pp. 636-637, the Coneal court stated: “Absent some meaningful method to 
13

insults a rival gang or brags about violent crimes need not be literally true in order for the 

gang to reap benefits such as instilling fear in the community and rival gangs or 

otherwise disrespecting rival gangs. 

In sum, substantial evidence supports both prongs of the gang enhancement. 

II. The One-Year Prior Prison Term Enhancement

Defendant contends the one-year prior prison term enhancement (§ 667.4, subd.

(b)) must be stricken in light of Senate Bill No. 136. The People concede the issue, and 

we agree. 

Senate Bill No. 136 became effective on January 1, 2020, and amends section 

667.5(b) to authorize a one-year prior prison term enhancement only if a defendant 

served a prior prison term for a sexually violent offense. It applies retroactively to 

defendants whose judgments are not yet final. (People v. Gastelum (2020) 45

Cal.App.5th 757, 761, 772; People v. Winn (2020) 44 Cal.App.5th 859, 872-873; People 

v. Lopez (2019) 42 Cal.App.5th 337, 341.)

Here, defendant’s prior prison term for a previous firearm possession, did not arise 

from a sexually violent offense. We will therefore modify the judgment to strike the 

enhancement. 

determine which lyrics represent real versus made up events, or some persuasive basis to 

construe specific lyrics literally, the probative value of lyrics as evidence of their literal 

truth is minimal.” (Coneal, at p. 968.) But the Coneal court was careful to note: “We do 

not mean to suggest that lyrics are never probative of their literal truth. For example, 

where lyrics are written within a reasonable period of time before or after the charged 

crime and bear a sufficient level of similarity to the charged crime, their probative value 

as a statement of fact is increased.” (Id. at p. 969, italics added.) Thus, contrary to 

defendant’s argument here, we conclude where the evidence establishes a connection to 

reasonably contemporaneous past events, rap videos discussing those events have 

probative value and accordingly, can be weighed into a substantial evidence analysis. 

Here, the lyrics regarding the assault on a rival where he was stripped naked provided 

evidence of recent conduct for which Trigga Mob was taking credit in disrespecting a 

rival gang.
14

III. The Five-Year Serious Felony Enhancement

Defendant contends remand is required because the trial court was unaware of its 

discretion to strike the section 667, subdivision (a) five-year prior serious felony 

enhancement following Senate Bill No. 1393’s enactment. In support, he points to the 

trial court’s statement during sentencing, “I have to add another five consecutive for the 

667(a) so-called five-year nickel prior.” (Italics added.) 

The People respond that remand is unwarranted because the trial court understood 

its discretion and in fact denied defendant’s Romero11 request to strike the prior serious 

felony enhancement alleged as a strike conviction. We agree with defendant.

A. Additional Background

Defendant was sentenced one month after Senate Bill No. 1393 took effect, 

affording trial courts discretion to strike prior serious felony enhancements imposed 

under section 667, subdivision (a). 

Prior to sentencing, defendant asked the trial court to strike his prior strike 

conviction and his prior prison term enhancement. As part of the request, defense 

counsel wrote, “adding an additional five years and doubling the base term would be 

unusually harsh.” Defendant did not expressly ask the court to strike or dismiss the 

separate section 667, subdivision (a) enhancement, either in writing or orally at 

sentencing. 

Denying defendant’s request, the trial court stated: “having looked at all of the 

facts that I’m required to look at in terms of sentencing factors, the objectives of the three 

strikes law and the defendant, I conclude that at this point that you cannot make a 

credible case that the defendant would be deemed outside the spirit of the three strikes

law and the scheme; and therefore, I’m going to deny the motion to strike the strike and 

11 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
15

also to strike the — either to the strike itself or the punishment for any of these 

enhancements.” (Italics added.)

Later, when summarizing the aggregate sentence, after stating the sentences for 

the firearm possession count, the gang enhancement and the prior prison term, the court 

stated: “And then I have to add another five consecutive for the 667(a) so-called fiveyear nickel prior, that will be consecutive. Total aggregate time, 13 years state prison.” 

(Italics added.) 

B. Analysis

A criminal defendant is entitled to “ ‘sentencing decisions made in the exercise of 

the “informed discretion” of the sentencing court,’ and a court that is unaware of its 

discretionary authority cannot exercise its informed discretion.” (People v. Brown (2007) 

147 Cal.App.4th 1213, 1228.) Where the record shows the trial court proceeded with 

sentencing on the assumption it lacked discretion, remand is necessary to afford the trial 

court an opportunity to exercise its sentencing discretion at a new sentencing hearing. 

(Ibid.) 

On this record, we are not sure the court was aware of its newly authorized 

discretion to strike the prior serious felony enhancement. The statement, “And then I 

have to add another five consecutive” indicates the court may have been operating under 

the pre-Senate Bill No. 1393 rule, wherein the section 667, subdivision (a) enhancement

sentence was mandatory. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972).

Nothing stated as part of the Romero request convinces us otherwise. Indeed, it appears 

the trial court’s singular focus in ruling on the Romero motion was whether defendant 

should be “deemed outside the spirit of the three strikes law.” 

Accordingly, we will remand to allow the trial court to consider exercising

discretion to strike or dismiss the section 667, subdivision (a) enhancement “in 

furtherance of justice” under section 1385, subdivision (a). 
16

DISPOSITION

We modify the judgment to strike the section 667.5, subdivision (b) prior prison 

term enhancement. We remand to allow the trial court to consider exercising its 

discretion to dismiss or strike the section 667, subdivision (a) prior serious felony 

enhancement in furtherance of justice under section 1385, subdivision (a). The trial court 

is directed to prepare an amended abstract of judgment and to send a certified copy to the 

Department of Corrections and Rehabilitation. In all other respects we affirm.

 /s/

MURRAY, J.

I concur:

 /s/

ROBIE, Acting P. J.
1

DUARTE, J., Concurring.

I agree with the majority’s ultimate conclusion, reached in part I of its Discussion, 

that the true finding on the gang enhancement at issue in this case was supported by 

sufficient evidence. I write separately to make clear that my agreement is specific to the 

particular facts of this case and the current state of the applicable law. (See 1988 STEP 

Act, Pen. Code, § 186.20 et seq., added by Stats. 1988, ch. 1242, § 1, eff. Sept. 23, 1988; 

Assembly Bill No. 333 (2021-2022 Reg. Sess.) Stats. 2021, ch. 699, known as the STEP 

Forward Act of 2021, which amended § 186.22 and added § 1109 to the Pen. Code, eff. 

Jan. 1, 2022.)

On that narrow basis, I agree with the majority’s conclusion that the true finding 

on the gang enhancement was supported by sufficient evidence, as well as the majority’s 

ultimate conclusions that modification and remand for exercise of sentencing discretion 

are appropriate. 

 /s/

DUARTE, J.