Considering changes to the law governing gang offenses, the trial court lacked substantial evidence to support its finding that defendant’s prior conviction under Penal Code section 186.22(a) was for a serious felony. Farias and Miranda were convicted of attempted murder and assault offenses after attacking and stabbing a fellow prison inmate. They appealed, raising multiple issues. Held: Remanded for resentencing and retrial of Miranda’s prior section 186.22(a) conviction. Miranda argued there was insufficient evidence that his 2009 prior conviction under section 186.22(a) was for a serious felony under current law, relying on People v. Rodriguez (2012) 55 Cal.4th 1125 and Assembly Bill No. 333. The Court of Appeal agreed that, after Rodriguez, in order for the trial court to find his 2009 conviction was for a serious felony as contemplated by section 667(a), and section 1192.7(c)(28), the trial court needed to find not only that he had a prior conviction under section 186.22(a), as it existed in 2009, but also that he committed the act that led to his conviction with another member of the gang rather than alone. Here the trial court made no finding that Miranda acted with another gang member and the documents admitted regarding his prior convictions contained no evidence to support such a finding. Applying Estrada, the Court of Appeal also concluded that the question of whether Miranda’s prior section 186.22(a) conviction qualifies as a serious felony should be considered under the current version of the law as amended by AB 333, which narrowed the definition of what qualifies as a street gang offense. “In adding a new element to what it means to ‘constitute a felony violation of Section 186.22,’ the Legislature added a new element to a prior serious felony enhancement based on” the offense. [Editor’s Note: The Court of Appeal also noted that its reasoning as to why substantial evidence does not support a finding that the prior section 186.22(a) conviction was a serious felony would support a like holding that substantial evidence does not support a finding that the conviction was a strike.]

Based on the current record, defendants’ sentence under the Three Strikes law is unauthorized because there was no finding that their strike priors were true. Farias, Miranda, their attorneys, and the People waived their presence at a bench trial on alleged prior convictions. The trial court then issued a minute order stating that it found the prior convictions true within the meaning of Penal Code section 667(a). Although the information alleged Farias and Miranda were eligible for a three-strikes life sentence within the meaning of section 667(e)(2), and Penal Code section 1170.12(c)(2), the minute order did not mention these statutes. Despite this, Farias and Miranda were sentenced under the Three Strikes law. On appeal, they argued that the trial court erred because it never actually found that their prior offenses were strikes. The Court of Appeal agreed that the sentence is unauthorized. After reviewing the record, the court treated the trial court’s silence on the strike priors as a not-true finding. However, the Court of Appeal noted it seems highly unlikely the trial court intended to show lenience through silence and that the absence of explicit findings on the strike priors in the record may have been due to clerical errors. As a result, the trial court may correct the judgment if the omission is shown to be purely a clerical error. [Editor’s Notes: (1) The Court of Appeal concluded substantial evidence supported a finding that Miranda’s prior conviction under Penal Code section 245(a) was for a felony in which Miranda inflicted great bodily injury as contemplated by section 12022.7(a), and, therefore, the trial court properly concluded this prior conviction was for a serious felony. (2) The Court of Appeal also concluded that the amended version of Penal Code section 654 (AB 518) applies in this case, and the trial court may reconsider its sentence to exercise its new discretion on remand.]