Opinion
H043582
10-30-2019
THE PEOPLE, Plaintiff and Respondent, v. DANIEL RUIZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1452118)
Defendant Daniel Ruiz was convicted by jury of robbery (Penal Code, §§ 211, 212.5, subd. (c)). The jury also found true the allegation that defendant committed the robbery for the benefit of a criminal street gang (§ 186.22, subd. (b)). Defendant admitted the allegation that he had suffered a prior conviction that qualified as a strike (§§ 667, subds. (b)-(i), 1170.12) and as a serious felony (§ 667, subd. (a)). The trial court sentenced defendant to 21 years in prison.
Subsequent statutory references are to the Penal Code. --------
On appeal, defendant contends that (1) the record lacks substantial evidence supporting the jury's finding that one of the gang's primary activities was committing offenses listed in section 186.22, subdivision (e), (2) trial counsel rendered ineffective assistance by failing to object to the gang expert's testimony based on lack of foundation, and (3) the record lacks substantial evidence that defendant committed the robbery for the benefit of a gang. We reject these contentions. Defendant also contends, and the Attorney General concedes, that remand is appropriate to allow the trial court to exercise its discretion to strike the prior serious felony finding. We agree. Accordingly, we reverse and remand for further proceedings.
I. Evidence Presented at Trial
A. The Robbery
On August 2, 2014, at around 6:00 p.m., Jose Lopez Casas went to Franco's Imports in Gilroy to cash his paycheck. After Casas went inside the store, defendant approached him and asked for a cigarette. Casas looked at defendant, shook his head "left to right in a no motion," and walked to the check cashing counter. As Casas was waiting in line, defendant called him "Scrapa." Casas eventually cashed his check for $216. The man cashing the check put $216 in cash on the counter. Casas "started to take it, but [defendant] got to it first." Casas "kept part of it." Defendant "kept the two $100 bills, and [Casas] kept the change." Casas then said, "it's my money" and grabbed defendant's hand. The men engaged in a "tug-of-war" over the two $100 bills. Defendant then said that he had a gun and lifted his shirt to reveal the handle of a "black gun." This scared Casas, who did "[n]othing" in response. Defendant then left the store.
Jose Franco owned Franco's Imports and was working in the store at the time. He cashed the check for Casas and put the money on the counter. He recalled seeing another person come over to the counter and take Casas's money. Franco did not recall any "scuffle" between the two men, and did not see a weapon or hear any words exchanged.
Franco's son, Necandro, was also working in the store. Before Casas entered the store, defendant asked Necandro for a cigarette. He responded that the store did not sell cigarettes. Some time later, Casas came into the store. Defendant approached Casas and asked him for a cigarette. Later, while helping another customer wire money, Necandro looked over and saw defendant get "closer to [Casas]" and ask him "if he banged." Casas "basically shook his head no." Necandro finished assisting the customer. Defendant then "stormed out of the store," meaning he got "halfway out the exit and then ran." Right before he exited the store, defendant said, "I run this."
B. Gang Evidence
1. Defendant's Police Encounters
Sergeant Robert Locke-Paddon described several encounters he had had with defendant. In March 2007, during a field interview, defendant told Sergeant Locke-Paddon that he "used to claim Norteno." Sergeant Locke-Paddon noted defendant had a number of tattoos: the numbers 408, a garlic bulb tattoo, the word "Gilas," and "another locality tattoo indicating Gilroy." In February 2008, Sergeant Locke-Paddon encountered defendant twice. The first time, defendant was in an area of Gilroy "claimed" by Nortenos. Defendant was wearing a red shirt and black pants. The second time, defendant was at a park in Gilroy, which had been "frequented by the Norteno gang" for "a long time." Sergeant Locke-Paddon noticed that there were "other gang members" there as well, and that it appeared that "they were meeting for some reason."
In July 2007, Officer Jesus Contreras encountered defendant and talked with him. Defendant told Officer Contreras that his nickname was "Bird." Defendant was with Homer Garza.
Sergeant Geoff Guerin also encountered defendant in February 2008 in the same Gilroy park described by Sergeant Locke-Paddon. Sergeant Guerin noted that there were six other individuals around, including Martin Aldama.
In November 2008, defendant was required to register as a gang member. Defendant met with a probation officer and registered as a Norteno. The probation officer noted "ESG" on the registration form.
In May 2013, Corporal Lamonte Toney encountered defendant and noted defendant's tattoos: "East Side Gilroy" on his back, "Gilas" and "408" on his forearm, a "four dots" tattoo near his left hand, and a "one dot" tattoo near his right hand. Defendant was "very open in discussing . . . his gang affiliation." He told Corporal Toney that he was a member of a Norteno gang, specifically East Side Gilas (ESG), and that he had been a member for six years. Corporal Toney also encountered defendant at around 1:15 p.m. on the day of the robbery. Defendant "was wearing a white T-shirt, blue jean shorts, and he had a red bandana either hanging from his waistband or his pocket."
2. Predicate Gang Offenses
On February 26, 2008, Sergeant Guerin responded to a report of "a group of individuals chasing one individual." When Sergeant Guerin arrived, other officers had already found the victim, who had "a minor injury" to his lips and face. Defendant was detained nearby, along with three other suspects. The victim identified defendant and another person as his assailants. Officers recovered the victim's stolen necklace. Sergeant Guerin noted that defendant "had the letters ESG written in about three-inch letters on the back of his shoes." Defendant was convicted of robbery with a gang enhancement in connection with this incident.
On January 27, 2010, Officer Hugo Del Moral responded to a report of a shooting. When Officer Del Moral arrived, the victim showed him "a bullet hole on the front bumper, and there was also a bullet hole or marking on the hood of the vehicle." The victim identified Martin Aldama, whom he knew from high school, as the shooter. Aldama was convicted of shooting at a vehicle.
On April 27, 2013, Officer Mark Tarasco responded to a reported fight. When Officer Tarasco arrived at the scene, he saw "a mess"—there were "40, 50 people standing in and about the driveway to this duplex-style apartment. People yelling, screaming, a car that had been vandalized. It was pretty chaotic." Michael Campos, Michael Wario, and Jonathan Fernandez were convicted of felony vandalism with gang enhancements in connection with the April 27 incident.
3. Gang Expert Testimony
Detective Bill Richmond testified as an expert on criminal street gangs in Santa Clara County. At the time, Detective Richmond was assigned to the Gilroy Police Department's "Anti-Crime Team," the Department's gang unit. He had served in the gang unit for over four years and had attended numerous criminal street gang trainings and conferences. "Dating back to when [he] was first sworn as a police officer in the streets of Gilroy," Detective Richmond "had the opportunity to work with, speak with, communicate with gang members, both active and ex gang members on a regular basis, nearly daily basis." When asked how many gang members he had spoken with about gang culture over his career, he responded: "I think a thousand would be understating it. I believe it's way over that." He had testified as a gang expert in four other criminal trials.
Detective Richmond testified that "Gilroy has been predominantly a Norteno-based gang -- Norteno-gang-based city for many, many years, going back to the late seventies." After internal conflicts in the "gang that ran the east side of Gilroy," two major subsets emerged: East Side Gilas (ESG) and Outside Posse (OSP).
Detective Richmond described ESG as a Norteno subset active in Gilroy. As "a Norteno criminal street gang subset, . . . they . . . use Norteno criminal street gang symbols," tattoos, and the color red. He noted that they are "[a]bsolutely" part "of the Norteno criminal street gang as it's defined. They're a subset within the City of Gilroy. They claim Norteno." According to Detective Richmond, as of the date of the robbery, "[t]he east side of Gilroy, very plainly by the name, is controlled and dominated by ESG." This territory controlled by Nortenos includes Franco's Imports. As of the date of the robbery, Detective Richmond estimated that "ESG Nortenos" had "[g]reater than 65, 70" members.
Detective Richmond also testified as to another Norteno subset in Gilroy, the Brown Pride Kings (BPK). ESG and BPK associated "[r]egularly." He explained how the two subsets operate: "[T]hey fall under the Norteno criminal street gang umbrella. [¶] They follow the same rules . . . . They perform their criminal enterprise together. They operate quite often together. . . . [¶] And it's very common for the Nortenos in Gilroy to operate together, Brown Pride Kings and ESG or East Side Gilas specifically."
In that regard, Detective Richmond highlighted the prior testimony that defendant associated with Aldama. This was significant, according to Detective Richmond, because Aldama was a BPK member. This "validate[d] that the gang members within and around Gilroy . . . specifically ESG and BPK . . . hang around together." "And by hanging around and working together . . . , the power of the Norteno movement grows." He explained that to the general public, "whether they see a Brown Pride King with a Kinks hat on or East Side Gilas member with an E belt buckle on, the numbers are large, the intimidation is greater, and them working together makes them powerful and intimidating."
He also noted that Officer Contreras had seen defendant with Homer "King Demon" Garza, an active BPK member. Detective Richmond knew Garza "from numerous professional contacts, other crimes that he's committed and/or been part of. And he's admitted to me that he's an active member." Detective Richmond explained that these encounters "show[] that [ESG and BPK] are operating together, that people will know that they're together." He further explained that if the subsets were not operating together, "the leaders within the subset would" prohibit such contact.
Detective Richmond also discussed the April 27, 2013 incident that resulted in the arrest of Campos, Wario, and Fernandez. Detective Richmond was on duty that day and responded. Based on his personal observations and investigation, he concluded that the incident was a "gang crime." In addition, based on "the complete circumstances and facts of this crime," and based on his debrief of the three men, it was his opinion that Campos, Wario, and Fernandez were active members of the BPK subset.
Detective Richmond described "the primary activities of the ESG Nortenos": "Well, criminal activity is the primary activity. You can start with any of the crimes enumerated in [section] 186.22(e), which would include -- not all, but it could include robbery, assault with a deadly weapon, assault [with] likelihood to cause great bodily injury, carjacking, torture, witness intimidation, false imprisonment, felony vandalism, shooting into a vehicle, shooting into a household." He added that their primary activities also included vehicle theft, narcotics distribution, and felon in possession of a firearm.
In response to a hypothetical based on the facts of defendant's case, Detective Richmond opined that such a robbery would be committed for the benefit of the Norteno gang. Detective Richmond first noted: "When you call somebody a scrap or scrapa, that is a very specific thing. It is a Norteno gang member referring to a Sureno gang member. Nothing else." Similarly, asking someone, " 'Do you bang' has one single meaning: It's asking that person if he's a gangbanger if he's ready to go to war." Detective Richmond explained that these challenges have a public dimension. They communicate to anyone listening that the speaker is willing to challenge someone in a public place. Such challenges "bolster the movement of the entire gang and intimidate everyone" in the area. "[B]ecause of all that, the general public will not challenge Norteno gang members. [¶] It . . . benefits the entire movement of the entire Norteno criminal street gang."
As to the crime of robbery, Detective Richmond continued: "This is what gangs do. They conduct criminal activity, alone or with another. And when conducting that criminal activity, everything that they do bolsters their reputation of the gang, furthers the intimidation factor to the general public. [¶] The more violent the crime, the robbery being a violent crime, the more violent with a firearm, even more violent, it benefits the gang because the general public, their rival gang members, people in the area are aware of the fact that this gang is perfectly willing to commit violent crime and because of that, their reputation grows, their power grows, and people's willingness to call the police or admit to being victims or to identify are -- they're scared to do that, they're not going to be contacting the police because of these gang members' willingness to commit a violent crime." Similarly, Detective Richmond also noted that committing crimes, specifically robberies, helps with recruitment: "[T]he younger generation will see that power and want that power. [¶] They'll want to be part of the team that they see as getting away with things or being able to operate how they want, when they want, wherever they want with little or no boundaries or control."
Detective Richmond also opined, based on the testimony and evidence of defendant's criminal history, encounters with police, and statements, that defendant was "an active participant of Nortenos." He concluded: "He's an active ESG -- East Side Gilas member, Norteno criminal street gang member."
II. Discussion
A. Primary Activities
Defendant contends that the record lacks substantial evidence that one of ESG Nortenos' primary activities was committing a crime listed in section 186.22, subdivision (e). Defendant asserts that the evidence "showed no more than occasional commission of enumerated crimes by the gang's members." He also contends that Detective Richmond's expert testimony about the gang's primary activities lacked an adequate factual foundation.
Section 186.22 defines a " 'criminal street gang' " as "a group of three or more persons" that has as "one of its primary activities the commission of one or more of the criminal acts enumerated" in the statute. (§ 186.22, subd. (f).) It must also have "a common name or common identifying sign or symbol," and its members must "engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).)
"The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.]" (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Proof that a "group's members consistently and repeatedly have committed criminal activity listed in the gang statute" is sufficient to establish the gang's primary activity. (Id. at p. 324.) The occasional commission of crimes by the gang's members, however, is insufficient. (Ibid.) The trier of fact may consider past offenses and the charged offenses in determining whether the primary activity element is satisfied. (Id. at pp. 320, 323.) Expert testimony may also be used to establish that one of the group's primary activities is the commission of statutorily enumerated offenses. (Id. at p. 324.) However, such testimony must be based on reliable information. Thus, "[t]he testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang's primary activities." (People v. Duran (2002) 97 Cal.App.4th 1448, 1465.)
We review the entire record to determine whether there is reasonable, credible evidence from which a trier of fact could reasonably find the gang enhancement to be true beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139, overruled on another ground in People v. Nelson (2008) 43 Cal.4th 1242.) "We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
Here, Detective Richmond based his testimony on a proper foundation, thereby allowing the jury to determine its reliability. At the time of trial, Detective Richmond had testified as a gang expert in four other criminal trials and had served in the Gilroy Police Department's gang unit for over four years. Since becoming a police officer, he had spoken with at least 1,000 active and inactive gang members "on a regular basis, nearly daily basis." He also regularly attended street gang conferences and trainings. He testified about the structure of the Norteno criminal street gang in Gilroy. Detective Richmond testified that the primary activities of "ESG Nortenos" included "robbery, assault with a deadly weapon, assault [with] likelihood to cause great bodily injury, carjacking, torture, witness intimidation, false imprisonment, felony vandalism, shooting into a vehicle, shooting into a household," vehicle theft, narcotics distribution, and felon in possession of a firearm.
Other officers also testified as to specific incidents involving Nortenos operating on the east side of Gilroy, including robbery, shooting at a vehicle, and felony vandalism. Sergeant Guerin testified to defendant's February 26, 2008 arrest for robbery with a gang enhancement. Officer Del Moral recounted the January 27, 2010 shooting of a car, which resulted in Aldama's conviction for shooting at a vehicle. Detective Richmond explained that Aldama was a known member of the Norteno subset BPK. Sergeant Guerin noted that he encountered defendant and Aldama in February 2008, at a park frequented by Norteno gang members. Finally, Officer Tarasco testified to the car vandalism incident on April 27, 2013, involving Campos, Wario, and Fernandez. Detective Richmond testified that, based on his personal knowledge, this incident was a gang crime and that these men were active members of a Norteno subset. Thus, both expert testimony and specific examples of criminal conduct constituted substantial evidence supporting the jury's finding regarding the primary activities of the criminal street gang.
Defendant's reliance on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.) is misplaced. In Alexander L., when the gang expert was asked about the gang's primary activities, he testified that "he 'kn[e]w' that the gang had been involved in certain crimes. No specifics were elicited as to the circumstances of these crimes, or where, when, or how [he] had obtained the information. He did not directly testify that criminal activities constituted" the gang's primary activities. (Id. at pp. 611-612.) Thus, the reviewing court held that the expert's testimony lacked foundation. (Id. at p. 612.) In contrast to Alexander L., here, Detective Richmond directly testified that specific qualifying criminal activities constituted the criminal street gang's primary activities. In addition, he testified regarding when and how he had obtained the information about Nortenos, and he provided further information as to the circumstances of the gang's activities.
In sum, there was an adequate foundation for Detective Richmond's testimony regarding the "primary activities" element of the gang enhancement. There was also substantial evidence that the gang repeatedly committed statutorily enumerated crimes.
Defendant also contends that his trial counsel was prejudicially deficient when he failed to object to Detective Richmond's testimony about primary activities based on lack of foundation.
To establish a claim of ineffective assistance of counsel, a defendant must make a two-prong showing of deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." (Id. at p. 700.) The prejudice prong requires a defendant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
We have already rejected defendant's assertion, made in the context of his sufficiency claim, that Detective Richmond's testimony lacked foundation. With respect to his instant claim, defendant again relies on Alexander L. and argues that its holding is applicable here because it involved "virtually identical testimony" that the reviewing court found lacked foundation. As we have explained, the testimony in Alexander L. was not similar to the testimony in this case.
Because Detective Richmond's testimony had an adequate foundation, defendant cannot show that a lack-of-foundation objection by his trial counsel would have been successful. Accordingly, he cannot show prejudice, and his claim of ineffective assistance cannot succeed. (Strickland, supra, 466 U.S. at p. 687.)
B. Sufficiency of the Evidence
Defendant also challenges the sufficiency of the evidence to support the gang enhancement.
The gang enhancement required proof that defendant committed the substantive offense (1) "for the benefit of, at the direction of, or in association with any criminal street gang," and (2) "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b).) Defendant argues that the record lacks substantial evidence of either element.
Here, Detective Richmond explained that calling "somebody a scrap or scrapa" is a "very specific thing . . . [i]t is a Norteno gang member referring to a Sureno gang member." Similarly, asking someone, "Do you bang," is a challenge to a rival gang member. Doing so in public, Detective Richmond noted, benefits the gang as a whole and bolsters its reputation in the area. Detective Richmond also explained that robbery, in particular, bolsters the reputation and power of a gang, and diminishes the public's willingness to call police or identify as victims. He noted that Franco's Imports was located in Norteno territory. Further, as defendant exited the store, he said, "I run this," which the jury could reasonably conclude was a reference to the Nortenos' control of the area.
These facts support Detective Richmond's expert opinion, reflected in his answer to the hypothetical mirroring the facts of this case, that such a robbery would be committed to bolster the reputation of the Norteno gang, intimidate the public, keep rival gang members away from its territory, and reduce the likelihood that victims or witnesses would cooperate with police. This supported both elements of the enhancement.
None of the cases upon which defendant relies provides support for his argument. In People v. Ramirez (2016) 244 Cal.App.4th 800 (Ramirez), the court concluded that evidence of one gang member shooting another, without more, was not an adequate basis for an expert's opinion that the shooting was for the benefit of the gang. (Id. at p. 819.) In summarizing the expert's opinion testimony, the Ramirez court concluded that it amounted to a claim that "the Sureños gang as a whole benefits when one Sureño member shoots another Sureño member." (Ibid.) Because the expert also testified that " '[e]very Hispanic gang member that resides south of Bakersfield is affiliated with the Surenos,' " on the facts of the case, his conclusion meant that one Sureno gang member shot another Sureno gang member to benefit the Sureno gang, which made "no sense." (Ibid.) In contrast, in this case, Detective Richmond's opinion was not logically inconsistent or otherwise at variance with the evidence. Rather, his opinion was entirely consistent with the testimony and evidence presented at trial.
Defendant's reliance on People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa) is no more helpful to his case. In Ochoa, the defendant challenged the sufficiency of the evidence to support the gang benefit element of the gang enhancement allegations attached to carjacking and possession of a firearm counts. (Id. at p. 652.) The defendant, a gang member, had acted alone in committing a carjacking with a shotgun. (Id. at p. 653.) The offense had not occurred in the defendant's gang's territory, the defendant "did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing the instant offenses. There was no evidence of bragging or graffiti to take credit for the crimes." (Id. at p. 662.) In contrast, here, there was evidence that defendant "called out" his victim as a rival gang member, that he took credit for his crime as he exited the store, and that the crime took place in Norteno territory.
We conclude that the jury could reasonably conclude that defendant committed the robbery to benefit the Norteno criminal street gang. The evidence also supports a reasonable inference that defendant intended to promote, further, or assist his fellow gang members in criminal conduct. Defendant committed the robbery in Norteno territory and he challenged the victim in public. He did so in broad daylight and brandished a weapon to accomplish the offense. The jury could infer from defendant's actions that he intended to promote, further, or assist the criminal conduct of his fellow gang members. Such an inference is bolstered by the fact that defendant said, "I run this," as he exited the store. Accordingly, substantial evidence supports the jury's true finding on the gang enhancement allegation.
C. Prior Serious Felony Enhancement
Defendant contends that the case must be remanded to permit the trial court to exercise its discretion to strike the prior serious felony enhancement.
In April 2016, defendant admitted the prior serious felony allegation. The trial court imposed a five-year consecutive term under section 667, subdivision (a), which was statutorily required when defendant was sentenced. (Former § 667, subd. (a).) "On September 30, 2018, the Governor signed Senate Bill [No.] 1393 which, effective January 1, 2019, amend[ed] sections 667(a) and 1385(b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)" (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)
Under In re Estrada (1965) 63 Cal.2d 740, "[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date. [Citation.]" (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) "The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses. [Citations.]" (People v. Nasalga (1996) 12 Cal.4th 784, 792.) Since nothing in Senate Bill No. 1393 suggests a legislative intent that the amendments to sections 667, subdivision (a), and 1385, subdivision (b), apply only prospectively, "it is appropriate to infer, as a matter of statutory construction, that the Legislature intended Senate Bill [No.] 1393 to apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final when Senate Bill [No.] 1393 becomes effective on January 1, 2019. [Citations.]" (Garcia, supra, 28 Cal.App.5th at p. 973.) Here, defendant's case was not final on January 1, 2019. (People v. Vieira (2005) 35 Cal.4th 264, 306 [" 'a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]' "].)
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.]' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) When the record shows that the trial court proceeded with sentencing on the assumption that it lacked discretion, remand for resentencing is necessary "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (Ibid.)
Here, there is no indication in the record whether the trial court would have decided to strike the prior serious felony enhancement. The Attorney General concedes that since defendant's case was not final on January 1, 2019, remand is appropriate. We agree that a remand is required.
III. Disposition
The judgment is reversed and the matter is remanded to permit the trial court to exercise its discretion pursuant to section 1385 to strike the serious felony enhancement. If the trial court declines to strike the enhancement, it shall reinstate the judgment. If it strikes the enhancement, it shall resentence defendant.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.