People v. Flores

• Decision Date: 22 April 2021
• Docket Number: E072843
• Citation: 63 Cal.App.5th 368,277 Cal.Rptr.3d 698
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carl Ray FLORES, Jr., Defendant and Appellant.

63 Cal.App.5th 368

277 Cal.Rptr.3d 698

The PEOPLE, Plaintiff and Respondent,

v.Carl Ray FLORES, Jr., Defendant and Appellant.

E072843

Court of Appeal, Fourth District, Division 2, California.

Filed April 22, 2021

As Modified May 18, 2021

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SLOUGH, J.

After hearing evidence that defendantCarl Ray Flores shot a man in the neck at close range, a jury convicted him of attempted premeditated murder with a 25-year-to-life gun enhancement.After trial, Flores admitted a prior serious felony, a prior prison term, and two prior strike offenses, which made him a third strike offender and exposed him to a life sentence under the "Three Strikes" law.( Pen. Code, §§ 667, subds. (c), (e)(2)(A), unlabeled statutory citations refer to this code.)At sentencing, the judge struck the prison prior and prior serious felony enhancements but nevertheless added them to the minimum term of Flores's life sentence, to reach a total indeterminate term of 69 years.

On appeal, Flores raises two routine sentencing issues and one new question about the role of enhancements in third strike sentencing.If a trial court exercises its discretion to strike an enhancement under section 1385"in furtherance of justice," may the enhancement still be used to increase the minimum term of the defendant's life sentence under what is commonly called "Option 3" of third strike sentencing?( § 667, subd. (e)(2)(A)(iii).)We conclude the answer is no.

In cases involving Option 3, "the Three Strikes law uses enhancements in two distinct ways: to calculate the minimum term of the indeterminate life sentence and to add an additional, determinate term to be served before the indeterminate life sentence."( People v. Williams(2004)34 Cal.4th 397, 403, 19 Cal.Rptr.3d 619, 98 P.3d 876( Williams ).)Once a court exercises its discretion to strike an enhancement under section 1385 for sentencing purposes, the enhancement may no longer be used to increase punishment, whether as a separate determinate term to be served before the life sentence or as a means of lengthening the minimum term of the life sentence.As we'll discuss, the judge in this case made the additional error of adding the enhancements twice to the minimum term of Flores's life sentence.

The two other arguments Flores raises on appeal—that the judge erred by refusing to strike or reduce the gun enhancement and treat his two prior strike convictions as a single strike under People v. Vargas(2014)59 Cal.4th 635, 174 Cal.Rptr.3d 277, 328 P.3d 1020( Vargas )—lack merit.We therefore remand for resentencing but affirm in all other respects.

IFACTS

Flores is a member of the Moreno Valley Locos gang and goes by the name Loquito.On May 31, 2014, the victim, Manley G. went to his friend Heather's home to collect a drug debt from a man named Moe.But before Manley could get the money, another man, Frank, arrived to drive Moe someplace else.Angry that Frank was saving Moe from paying up, Manley bashed in Frank's front windshield and drove off.Manley's outburst brought the police to Heather's, which did not sit well with Flores because her home was a common hangout for his gang.

Later in the day, Manley was at another friend's house when he received a call from Heather.As he was on the phone with her, Flores pulled up and approached Manley, armed with a .380-caliber handgun.Manley suspected Flores was angry with him over the windshield incident.As he tried to explain his side of the story, Flores shot him in the neck at point blank range and drove off.

Manley spent three days in the hospital and survived the shooting.The bullet entered the left side of his neck and exited through his back.Shrapnel fragments from the bullet were found in the soft tissue in his neck, as well as near his ribs and arteries.He suffered loss of hearing in his left ear and numbness in both arms.

The jury convicted Flores of attempted premeditated murder (§§ 664(a),187,189) and found he personally and intentionally discharged a firearm causing great bodily injury ( § 12022.53, subd. (d) ).Before sentencing, Flores admitted three prior felony convictions: carjacking and attempted murder in 1999 and manufacturing a weapon in prison in 2007.Both the carjacking and attempted murder convictions qualified as prior strike offenses ( § 667, subds. (c) & (e)(2)(A) ), but because they were tried in the same proceeding, they supported only one prior serious felony conviction for purposes of the five-year enhancement ( § 667, subd. (a) ).Flores also admitted he served a prior prison term (§ 667.5, subd. (b)) for the carjacking and attempted murder convictions.

Flores filed a Romero¹ motion before sentencing, asking the judge to treat his carjacking and attempted murder convictions as a single strike offense under Vargas because they arose from the same incident and involved the same victim.The judge denied the motion, concluding the two offenses arose from distinct acts with different criminal objectives.The judge also declined Flores's request to strike or reduce the gun enhancement because of the violent and callous nature of the shooting.The judge sentenced him to a total of 69 years to life under Option 3 of the Three Strikes law.( § 667, subd. (e)(2)(A)(iii).)

IIANALYSIS

A.The Gun Enhancement

Section 12022.53 provides three different sentence enhancements for the personal use of a firearm in the commission of certain offenses: a 10-year enhancement for personal use ( § 12022.53, subd. (b) ); a 20-year enhancement for personal and intentional discharge ( § 12022.53, subd. (c) ); and a 25-year-to-life enhancement for personal and intentional discharge causing great bodily injury or death ( § 12022.53, subd. (d) ), which is the one at issue here.

Section 12022.53 enhancements used to be mandatory, but as of January 1, 2018, trial judges have discretion to strike or dismiss them "in the interest of justice" under section 1385.( § 12022.53, subd. (h);see alsoPeople v. Pearson(2019)38 Cal.App.5th 112, 116, 250 Cal.Rptr.3d 580( Pearson )["Senate BillNo. 620 ..., which added section 12022.53, subdivision (h), gave the trial court discretion ... ‘[to] strike or dismiss an enhancement otherwise required to be imposed by this section’ "].)Flores argues the judge abused his discretion by refusing to strike his gun enhancement or reduce it to a lesser enhancement in section 12022.53.²We disagree.

We review the denial of a motion to dismiss an enhancement for abuse of discretion and will not reverse the ruling unless it " ‘is so irrational or arbitrary that no reasonable person could agree with it.’ "( Pearson, supra , 38 Cal.App.5th at p. 116, 250 Cal.Rptr.3d 580;People v. Carmony(2004)33 Cal.4th 367, 375, 377, 14 Cal.Rptr.3d 880, 92 P.3d 369.)

Here, when ruling on Flores's motion, the judge explained, "I don't feel that I should exercise discretion to [strike or] lessen that 25 to life [enhancement] because this was a shot right through the neck, and I can't imagine anything more serious.If it had been just a couple centimeters one way or the other, this would have been a homicide."The judge also noted that Flores had been on parole for only about a month before reoffending.

Flores argues the judge's decision was irrational because he placed too much weight on the seriousness of the injury and failed to recognize that even defendants who kill their victims are eligible to have their firearm enhancements stricken under Senate BillNo. 620.According to Flores, "Logically, one would be more lenient toward a defendant who does not kill his victim, but here the court took the opposite and irrational position, blaming appellant because he almost killed the victim."This argument boils down to a claim that defendants who don't kill their victims should be treated with more leniency than those who do.

But the law doesn't reward sheer luck.The factors a trial court must consider when determining whether to strike a gun enhancement "are the same ... the trial court must consider when handing down a sentence in the first instance."( Pearson, supra , 38 Cal.App.5th at p. 117, 250 Cal.Rptr.3d 580, citingCal. Rules of Court, rules 4.410,4.421 & 4.423.)Among those factors are whether " ‘[t]he crime involved great violence , ... threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness’ " and whether " ‘[t]he defendant has engaged in violent conduct that indicates a serious danger to society.’ "( Pearson , at p. 117, 250 Cal.Rptr.3d 580, italics added.)

Contrary to Flores's argument, none of these factors places any import on whether the victim died from the defendant's use of a gun.The focus, rightly so, is on the threat of violence or injury and the degree of danger the defendant poses to the public.As such, the trial judge acted well within his discretion when he focused on the seriousness of the injury Flores inflicted and the high degree of callousness it takes to shoot someone in the neck at close range over a minor transgression.And, given that Flores tried to kill the victim after only recently having been released from prison for the very same offense, the judge could reasonably conclude he posed a serious danger to the public.We uphold the decision to impose the enhancement rather than dismiss or reduce it.

B.The Prior Strikes

Next, Flores argues the judge erred by denying his motion to treat his carjacking and attempted murder convictions as a single strike under Vargas , which held that multiple convictions "arising out of a single act against a single victim" count as only one strike.( Vargas, supra , 59 Cal.4th at p. 637, 174 Cal.Rptr.3d 277, 328...