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Name: People v. Gonzalez (2024) 98 Cal.App.5th 1300
Case #: F084952
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/23/2024

Assembly Bill No. 333’s amendments to Penal Code section 186.22 did not change the status of defendant’s prior conviction as a strike. Defendant was found guilty of multiple firearm and drug offenses. The trial court sentenced him as a second strike offender after finding that he had been convicted in 2002 of felony possession of a firearm with a gang enhancement. On appeal, defendant argued that his prior conviction no longer qualified as a strike after AB 333’s amendments to section 186.22. Held: Affirmed. The Court of Appeal agreed with other cases holding that the plain language of the Three Strikes law compels the conclusion that the status of the defendant’s prior conviction as a strike was fixed upon the date of his prior conviction. (§ 1170.12(b)(1); see § 667(d)(1).) Here, defendant’s prior conviction was a strike in 2002, and it remains so today. The court disagreed with People v. Farias (2023) 92 Cal.App.5th 619, review granted 9/27/23 (S281027/C094195), on the grounds that Farias did not meaningfully analyze the applicability of AB 333 to the prior strike finding, and also did not consider the “lock-in” provisions of the Three Strikes law (§§ 667(h), 667.1, 1170.125) or the language of section 1170.12(b)(1), which provides that, for purposes of the Three Strikes law, “[t]he determination of whether a prior conviction is a prior serious or violent felony conviction for purposes of this section shall be made upon the date of that prior conviction.” The court also disagreed with defendant’s argument that the plain language of the Three Strikes law compels the conclusion that prior strike determinations were intended to be made with reference to current law. [Editor’s Note: This issue is pending in the California Supreme Court in People v. Fletcher (2023) 92 Cal.App.5th 1374, review granted 9/27/2023 (S281282/E077553), which presents the following issues: (1) Does Assembly Bill No. 333 amend the requirements for a true finding on a prior strike conviction (Pen. Code, §§ 667, subds. (b)–(i) & 1170.12, subds. (a)–(d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)), or is that determination made on “the date of that prior conviction”? (See Pen. Code, §§ 667, subd. (d)(1) & 1170.12, subd. (b)(1).) (2) Does Assembly Bill No. 333 (Stats. 2021, ch. 699), which modified the criminal street gang statute (Pen. Code, § 186.22), unconstitutionally amend Proposition 21 and Proposition 36, if applied to strike convictions and serious felony convictions?]

The trial court had authority to impose an aggravated term. On appeal, defendant challenged the trial court’s reliance on aggravating factors to impose upper-term sentences. In a bifurcated proceeding, the trial court found four factors true, namely, that defendant had prior convictions as an adult that were numerous and of increasing seriousness, had served a prior prison term, was on probation or parole when the crime was committed, and had prior unsatisfactory performance while on probation or parole. Defendant contended that each of these factors related to his criminal history, and not his current offenses, and thus were unauthorized. Specifically, he argued that section 1170(b)(3), which permits consideration of a defendant’s prior convictions in sentencing, applies only after the court has determined that “circumstances in aggravation of the crime” under subdivision (b)(2) authorize an upper-term sentence. The court disagreed, holding that the trial court was permitted to rely on defendant’s criminal history. Subdivision (b)(3) provides: “notwithstanding paragraphs (1) and (2), the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (Italics added.) Thus, by its plain language, section 1170(b)(3) applies, despite the limitations set forth in (b)(1) and (b)(2), and authorizes the court to impose an upper-term sentence based on a defendant’s prior convictions.

The trial court’s reliance on factors enumerated in rule 4.421(b) did not violate the nondelegation doctrine. People v. Wright (1982) 30 Cal.3d 705 held that the legislative direction for the Judicial Council to adopt former rules 421 and 423 (the predecessors to rules 4.421 and 4.423) did not constitute an invalid delegation of legislative power. Here, defendant argued that Wright was no longer controlling because it derived entirely from its orientation as a creature of guidance and discretion, and a rule purporting to define aggravating circumstances for jury consideration would not survive a Wright analysis. The Court of Appeal disagreed, noting that in this case, defendant was not subject to an upper-term sentence based on factors that were submitted to a jury. Thus, the court was not called upon to resolve whether a rule purporting to set forth aggravating factors for jury consideration constitutes a valid delegation of legislative authority. The trial court properly considered the defendant’s prior convictions under section 1170(b)(3) and rule 4.421(b). Wright expressly holds that the development of these factors by the Judicial Council, and thus reliance on these factors by the court, does not involve an unconstitutional delegation of power.

The full opinion is available on the court’s website here: