California Court of Appeal Dec 23, 2024 No. E081788Unpublished
Filed 12/23/24 P. v. Garcia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081788
v. (Super.Ct.No. BAF2101238)
TIZOC GARCIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
Judge. Affirmed in part, reversed in part, remanded with directions.
Joseph Doyle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Joshua
Trinh, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Tizoc Garcia shot a man with a shotgun. A jury
convicted him of assault with a firearm, among other charges. The trial court found true
allegations that he had two prior convictions that were serious felonies and strikes—one 1 in 2002 for participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), the
other in 2009 for aggravated assault (§ 245, subd. (a))—and sentenced him to 25 years to
Thus, in 2023, when the prosecution sought to prove Garcia’s 2002 conviction
qualified as a strike, “the understanding of the elements of the offense had shifted.”
(People v. Strike (2020) 45 Cal.App.5th 143, 150 (Strike).) “Certain conduct that was
considered gang participation prior to Rodriguez no longer qualified. This change in the
interpretation of section 186.22(a) rendered a pre-Rodriguez conviction inconclusive on
its face as to whether it qualified as a strike.” (Ibid; accord People v. Farias (2023) 92
Cal.App.5th 619, 648-650; People v. Watts (2005) 131 Cal.App.4th 589, 596-597.) The
prosecution therefore “could not simply rely on the fact defendant had suffered a
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conviction for violating section 186.22(a),” but had to also “prove defendant admitted all
of the elements of the offense as explained by Rodriguez, including that he committed a
felony offense with another member of his gang.” (Strike, at p. 150.) The parties agree,
as do we, that the prosecution did not satisfy that evidentiary burden, so the trial court’s
true finding on the prior conviction allegation for Garcia’s 2002 conviction must be 2 reversed.
Nevertheless, “reversal of a true finding on a prior conviction allegation does not
prevent retrial of that enhancement.” (Strike, supra, 45 Cal.App.5th at p. 154.) Rather,
“the appropriate remedy is to remand the case to the trial court for a new hearing on the
prior strike allegation ‘to permit the People to demonstrate to the trial court, based on the
record of the prior plea proceedings, that defendant’s guilty plea encompassed a relevant
admission about the nature of [his] crime.’” (Ibid.) “Upon remand, the prosecution may
be able to provide a reporter’s transcript of the [2002] plea proceedings or other
documentation not previously provided, which may shed light on whether defendant
admitted any additional facts as part of his guilty plea.” (Ibid.) In the alternative, the
People may choose not to retry that prior strike allegation. In any case, the trial court will
need to resentence Garcia.
2 This conclusion based on Rodriguez and Strike means we need not address Garcia’s arguments relating to the changes to section 186.22 enacted by Assembly Bill No. 333 (2021-2022 Reg. Sess.).
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C. Conceded Clerical Error and Sentencing Error
The trial court sentenced Garcia to 25 years to life for count 2 and eight years for
count 3, staying both terms under section 654. The sentencing minute order and the
abstract of judgment, however, reversed this, showing the court imposed a stayed eight-
year term for count 2 and a stayed 25 years to life term for count 3. The parties agree, as
do we, that the court’s oral pronouncement of judgment controls. (See People v. Mitchell
(2001) 26 Cal.4th 181, 185-186.)
Also, the eight-year stayed term imposed for count 3 was calculated as the “upper
term” of “four years” for the offense of possessing ammunition as a felon in violation of
section 30305, subdivision (a), “doubled to eight years.” The upper term for violating
section 30305, subdivision (a), is three years, not four. (§§ 18, subd. (a); 1170, subd.
(h)(1); § 30305, subd. (a); see also People v. Butler (2022) 75 Cal.App.5th 216, 225.)
The parties agree, as do we, that Garcia’s failure to object to this error at sentencing does
not preclude him from seeking relief on appeal from the unauthorized sentence. (See
People v. Anderson (2020) 9 Cal.5th 946, 962.)
We are already vacating defendant’s sentence and remanding the matter for further
proceedings, including resentencing. We expect that the trial court will not repeat these
errors.
DISPOSITION
The trial court’s true findings on the serious felony prior and strike prior
allegations regarding Garcia’s 2002 conviction under section 186.22, subdivision (a), are
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reversed and Garcia’s sentence is vacated. We remand the matter for retrial of those prior
conviction allegations, if the People so choose, and resentencing. In all other respects,
the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's finding that the defendant's 2009 conviction was a strike, but reversed the finding regarding the 2002 conviction due to insufficient evidence and remanded for resentencing and potential retrial of the 2002 allegation.
Issues
Whether substantial evidence supports the trial court's finding that the defendant's 2009 conviction was a serious felony and a strike.
Whether the defendant's 2002 conviction for gang participation qualifies as a strike under current legal standards.
Whether the trial court committed clerical and sentencing errors regarding the term lengths and stayed sentences.
Disposition. Affirmed in part, reversed in part, and remanded.
Quotations verified verbatim against the opinion
“We find the evidence to be sufficient, and therefore affirm those findings.”
“Insufficient evidence supports the trial court’s finding that his 2002 conviction was a serious felony and a strike.”