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March 10, 2026 Get Citation Alerts Download PDF Add Note

People v. Valencia

California Court of Appeal

• Citations: None known

• Docket Number: B338672

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.8K)

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Combined Opinion

Filed 3/10/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B338672

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA117390
v.

ISAIAS DEJESUS VALENCIA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Affirmed and remanded
with directions.
George Schraer, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jonathan J. Kline and Herbert S. Tetef,
Deputy Attorneys General, for Plaintiff and Respondent.

---

Isaias Valencia used methamphetamine and cocaine and
began driving his pickup. He would not comply with police
orders to pull over. Police chased Valencia until he crashed into a
parked car. He jumped out, ran to his nearby apartment, and
barricaded himself in his bedroom. Thus began an overnight
standoff in which the 38-year-old Valencia would shoot one officer
to death and seriously wound another. A SWAT team eventually
blew through his bedroom wall and blasted down his bedroom
door. The jury convicted Valencia of murder and other felonies.
Valencia’s appeal challenges the warrantless entry of police
into his apartment. We hold that jurors could find exigent
circumstances justified the initial warrantless entry and, further,
that police did not need to seek a warrant once they were in the
apartment.
We likewise reject Valencia’s claim that, because he fired
only six rounds, he could be convicted of only six crimes.
The prosecution agrees with Valencia that the trial court
committed sentencing errors, which we order corrected on
remand. Undesignated code citations are to the Penal Code.
I
At about 8 p.m., the Pomona Police Department dispatched
officers to Palomares Street to look for a drunk driver. The
officers sought a Chevy Silverado pickup. On that street they
saw Valencia in a Silverado. Police turned on their overhead
lights, and Valencia took off. He drove on the wrong side of the
road, ignored stop signs, and broke the speed limit. The car
chase ended when Valencia crashed.
Valencia’s route was peculiar: it was circular, not linear.
He drove south on Palomares, made a U-turn, drove north on the
same street, made another U-turn to drive south again, and U-

2
turned again to drive north, all on the same street. Then he
turned left and drove around the block. Finally, he crashed into a
parked car across the street from where police had first seen him.
Valencia had led police on a high-speed, reckless chase that
ended where it began. The chase did not fit the standard pattern
of a desperate effort to get away.
There was another irregular aspect to this pursuit.
Valencia stuck his head out of his window and laughed at the
police. He was “wide eyed.” The prosecution argued Valencia
was “taunting” the police.
After his crash, Valencia leapt from the truck and sprinted
to a nearby apartment building. Officers ran after him, leaving
both doors of their police cruiser standing open: their pursuit
was hot. They lost sight of Valencia momentarily, but a member
of Valencia’s family led them to his apartment.
Police rushed into the apartment through the front door,
which was open. As they entered, they saw the same family
member standing outside a closed interior bedroom door. She
was calling to Valencia, using his first name.
Officers asked whether there were guns or weapons in the
apartment. That family member said no. Valencia’s brother, on
the other hand, might have—at least at some point—conveyed to
police that Valencia had a knife and it seems there was some
concern for the safety of the family members who also occupied
the apartment and had summoned the police.
Had these local patrol officers believed Valencia was armed
with a gun, they would not have tried to enter the apartment on
their own, but would have consulted their watch commander for
strategy. As it was, however, the sergeant on the scene saw no
need for a SWAT unit.

3
Officers heard Valencia in the bedroom moving furniture
and concluded he was barricading the bedroom door. They called
for him to come out. Valencia would not come out.
Police huddled to work out a plan. They did not know the
layout of the apartment complex. One said “we don’t know
what’s gonna happen.” The police department began sending
more resources to the standoff.
First, police attempted further negotiations. They kept
knocking on the door, calling out, and were constantly addressing
Valencia. They shouted, “We are police officers. We’re not here
to hurt you. We’re here to help you. We need you to come out
and talk to us.” “Please come out.” The police made these
announcements in person from inside the apartment in English
and Spanish, and then also from an outside public address
system on an armored unit called a BearCat they brought to the
scene. Valencia did not respond or come out.
Then police announced they now had a police dog: “We
have a K-9. We’ll send in the dog and it will bite you.” Valencia
did not come out.
When the Pomona police despaired of coaxing Valencia out,
they called for a battering ram and a “ballistics shield.” One
officer was in charge of the ram and another—Officer Greggory
Casillas—held the shield. Many officers lined up behind the ram
and the shield. The officer with the ram opened the bedroom
door. Casillas charged in with the shield, with other officers
following in a line behind him.
Using a .357 magnum revolver, Valencia shot Casillas in
the forehead and Officer Alex Nguyen in the cheek.

4
To escape flying bullets, other officers in the entering line
dodged into an adjoining bathroom. Crossfire trapped three
officers in that bathroom.
Officers dragged Casillas out of the apartment. Casillas
died. Nguyen survived, but the bullet in his face meant he would
have trouble opening his mouth or speaking.
Police kept shooting at Valencia, which allowed the three
trapped officers to escape to safety.
At this point, the local Pomona department asked the Los
Angeles County Sheriff’s Department for help. The Sheriff’s
Department is much larger than the local Pomona force. With
some 10,000 officers, the Sheriff’s Department had more
specialized units and equipment than did the local police.
The Sheriff’s SWAT team arrived shortly before midnight
and took over. This team’s pressing business was to interview
those present and to size up the deadly emergency. Where was
Valencia? What was known of his mindset? Did Valencia have
hostages? Were others in the bedroom? What innocent people
might be in danger? The SWAT commander testified that
answers to these questions could change “the tactical situation
completely.”
The SWAT team concluded Valencia probably was in the
bedroom alone. But they were unsure: their conclusion might be
incorrect. The SWAT decisionmakers continued to appraise the
uncertainties of the situation.
The team evacuated residents from other apartments to
avoid gunfire injuries to innocent bystanders. The standoff had
trapped people in the surrounding apartments. The SWAT team
hurried them out.

5
The SWAT team formulated a plan to encourage Valencia
to come out voluntarily. The goal was a peaceable solution, for
Valencia’s sake as well as their own. As the SWAT commander
testified, when someone is in their own place, they know where
everything is. Police, on the other hand, “have no idea.” Thus
the officers were “at a disadvantage when we go inside a location;
so ideally we want people to come out to us.”
At the same time, their imperative was to end the
encounter as swiftly as possible. “If you don’t take action, bad
things can happen.” The commander told the jury about the
“Uvalde school incident,” where regrettably police on the scene
delayed action and, as a result, more “kids are getting shot.” The
SWAT team concentrated on avoiding unnecessary and
dangerous delay as well as hasty missteps.
Simply waiting Valencia out was an unattractive option.
Valencia had a gun. He had an unknown amount of ammunition,
food, and water. Waiting him out could take days, meaning
during that time neighbors would be homeless and without access
to their clothing and belongings. The neighborhood would
remain in crisis. Many police would be diverted from other
emergencies. There was a premium on resolving the situation.
Throughout the standoff, the SWAT team kept trying to
communicate with Valencia, in English and in Spanish. They
tossed a phone into the bedroom. They recorded a message from
Valencia’s mother, urging him to come out. They got a crisis
negotiation team to report to the scene, because Valencia was
refusing to use any device. The team spent hours on these
efforts. Valencia did not respond. “I don’t remember him ever
communicating with us.”

6
The SWAT team put a camera in through the rear window
of the apartment. The images showed Valencia had piled
everything in the room, including the contents of the closet, into
one big heap against the door. The pile reached nearly to the top
of the door. “There was debris everywhere. There was clutter
everywhere.” The SWAT team saw Valencia “making strange
gestures. It was just -- in my opinion, just erratic. There was no
rhyme or reason” to Valencia’s conduct.
The SWAT team next tried “cold” and “hot” gas canisters—
like tear gas, but more potent. Valencia tolerated each gas bomb,
however, by burying his head in the clothing on the ground.
More than 10 successive gas canisters failed to dislodge him.
The SWAT team eventually resorted to explosives. One
explosion ripped the bedroom door off its hinges. Other charges
blasted holes through the common wall of the adjoining
apartment. The side holes were preparation for possible entry
through the bedroom doorway so, “in case this individual wanted
to shoot at us, we had some support from that side.”
The SWAT team warned Valencia they would send their
police dog in if he did not come out. He did not respond. Police
sent in the dog, but Valencia did not surrender. He fought the
dog.
A large team of SWAT officers stormed in, and Valencia
battled them. Valencia pulled one officer down and tried to get
his gun. After a struggle, the SWAT team took Valencia into
custody. They took him to the hospital for treatment for gas
exposure and dog bites.
Lab work found methamphetamine and cocaine in
Valencia’s blood.

7
From start to finish, the entire episode lasted some 15
hours: from about 9 p.m. until past noon the next day. Despite
the considerable duration of the standoff overall, the period
between first entry into the apartment and first entry into the
bedroom was between 25 minutes and “closer to an hour.”
The prosecution charged Valencia with 10 felonies: the
murder of Casillas, four counts of attempted murder, three
counts of assault, and one count each of gun possession and
reckless flight. The prosecution’s theory was the attempted
murder victims were the officers closest to the door and the
shooting, while the assault victims were those behind them but
still in the line of fire.
The prosecution also alleged each victim of the murder and
attempted murders was a peace officer engaged in the
performance of duty. These “performance of duty” allegations are
relevant on appeal because Valencia argues the police were not
on lawful duty because they entered his apartment without a
warrant.
A further allegation is pertinent. With our emphasis, that
is the allegation that Valencia murdered Casillas “for the purpose
of avoiding and preventing a lawful arrest, within the meaning of
Penal Code Section 190.2(a)(5).” Again, Valencia’s appellate
theory is his arrest was not lawful because officers entered his
apartment without a warrant.
Trial began on April 22, 2024 and lasted until May 13,
2024. After the close of evidence, the court instructed the jury
about the charges Valencia faced, including the two types of
allegations pertinent to this appeal: the “lawful duty” allegations
and the avoiding “lawful arrest” allegation.

8
The “lawful duty” allegations were as follows. CALCRIM
No. 724 explained the allegation charging that the murder of
Casillas was of an officer “lawfully performing” his duties.
CALCRIM No. 602 set forth the allied allegations that the
attempted murder and assault victims were officers “lawfully
performing” their official duties.
The second type of allegation concerned “lawful arrest.”
This “lawful arrest” allegation concerned only the charged
murder of Casillas. The court instructed the jury with CALCRIM
No. 723, which explained Valencia was charged with the special
circumstance of murder committed to prevent arrest in violation
of section 190.2(a)(5). To prove this special circumstance was
true, the prosecution had to prove that Valencia committed the
murder to avoid or prevent a “lawful arrest.”
The jury sided with the prosecution in all respects. It
rendered the following convictions:
1. Murder of Casillas;
2. Attempted murder of Nyugen;
3. Attempted murder of Officer Samantha Sutcliffe;
4. Attempted murder of Officer Max McNeeley;
5. Attempted murder of Officer Paul Lucifora;
6. Assault with a firearm on Officer Todd Samuels;
7. Assault with a firearm on Officer Christian Pagtakhan;
8. Assault with a firearm on Officer Joe Hernandez;
9. Possession of a gun by a felon; and
10. Felony evasion of a police officer.
We do not refer to these charges by numbered counts. The
court renumbered counts for the jury, and then renumbered
again at sentencing.

9
The court sentenced Valencia on June 10, 2024. The
sentence was life in prison without the possibility of parole, plus
278 years to life, plus two years. We return to this sentence at
the end of this opinion.
II
Valencia’s appeal raises three issues. On the first point, we
hold jurors could find the warrantless police entry was proper.
On the second, we reject Valencia’s claim that the number of
bullets fired must somehow correspond with the proper number
of convictions. The prosecution agrees with Valencia on his third
argument, which is that aspects of the sentence were erroneous.
We remand for correction of technical errors.
A
Jurors could find the warrantless entry was proper.
Valencia argues that police, to be acting lawfully, needed a
warrant. If they were acting unlawfully, he contends, this would
invalidate both the special circumstances allegations concerning
the Casillas murder and the attempted murders, as well as the
three counts of assault on peace officers. Police had ample
justification for their hot pursuit of a felon, however, and their
hot pursuit justified their warrantless entry. Once inside
Valencia’s apartment, law enforcement was not required to seek
a warrant to authorize their effort to end the standoff.
1
Our standard of review is deferential as to factual
questions. (People v. Ramirez (2022) 13 Cal.5th 997, 1117–1118;
see also People v. Jenkins (2000) 22 Cal.4th 900, 1020 [“Disputed
facts relating to the question whether the officer was acting
lawfully are for the jury to determine when such an offense is
charged”].) We independently review the legal contours of the

10
constitutional warrant requirement. (See, e.g., Lange v.
California (2021) 594 U.S. 295, 298–299 (Lange).)
The Fourth Amendment to the Constitution protects
Americans against unreasonable police searches and seizures in
their homes. The touchstone is reasonableness, which generally
requires a judicial warrant before police can enter a home
without permission. An exception is for exigent circumstances,
which arise when the situation makes the needs of law
enforcement so compelling that a warrantless search is
objectively reasonable. This exception enables police to handle
emergencies: situations presenting a compelling need for official
action that leave no time to secure a warrant. Officers, for
example, may enter a home without a warrant to render
emergency assistance to an injured occupant, to protect an
occupant from imminent injury, or to ensure their own safety.
Police may make a warrantless entry to prevent the imminent
destruction of evidence or to prevent a suspect’s escape. The
delay required to obtain a warrant in those circumstances would
have immediate and serious consequences, so courts excuse the
absence of a warrant. Courts generally apply the exigent-
circumstances exception on a case-by-case basis, which reflects
the various nature of emergencies. Whether a now-or-never
situation actually exists—in other words, whether an officer has
no time to secure a warrant—depends upon facts on the ground.
Courts thus look at the totality of circumstances confronting
officers as they decide to make warrantless entries. (Lange,
supra, 594 U.S. at pp. 301–302.)
Hot pursuit can justify warrantless entry, but not always.
Pursuit of a fleeing misdemeanor suspect does not always—that
is, categorically—justify a warrantless entry into a home.

11
(Lange, supra, 594 U.S. at pp. 299, 313.) “An officer must
consider all the circumstances in a pursuit case to determine
whether there is a law enforcement emergency. On many
occasions, the officer will have good reason to enter—to prevent
imminent harms of violence, destruction of evidence, or escape
from the home. But when the officer has time to get a warrant,
he must do so—even though the misdemeanant fled.” (Id. at p.
313, italics added.)
The rules about hot pursuant of felons are somewhat
uncertain. Some thought the Supreme Court in United States v.
Santana (1976) 427 U.S. 38 (Santana) had treated the matter on
a per se basis: a felon’s flight into the home always justified
warrantless entry by pursuing police. (See Lange, supra, 594
U.S. at pp. 302–305; see id. at pp. 315 [concurring opinion of
Kavanaugh, J.] & 320 [concurring opinion of Roberts, C.J.].) But
the Lange majority opinion merely assumed this was so, without
reaching the issue. (Id. at pp. 304–305.)
The Lange opinion stated that “in a great many cases flight
creates a need for police to act swiftly.” (Lange, supra, 594 U.S.
at p. 307; see also People v. Escudero (1979) 23 Cal.3d 800, 810,
fn. 6 [“The hot pursuit doctrine is designed to prevent the escape
of fleeing felons”]; People v. Soldoff (1980) 112 Cal.App.3d 1, 6
[“One recognized rule is known as the ‘hot pursuit’ doctrine to
preclude escape of a suspected felon”].)
Another conventional factor tipping the balance in favor of
exigent circumstances is the need to preserve evidence. (See
Lange, supra, 594 U.S. at p. 307; Santana, supra, 427 U.S. at
p. 43 [“Once Santana saw the police, there was likewise a
realistic expectation that any delay would result in destruction of
evidence”].)

12
Evidence of intoxicated driving usually exists in a suspect’s
bloodstream—but merely for a finite interval. Presence of this
evidence is incriminating. Its absence is exculpating. As time
passes, however, humans metabolize this evidence and thereby
destroy it. The failure to test blood promptly means this
opportunity to develop evidence of guilt or innocence will be lost.
The high court grappled with the transience of blood
evidence in Mitchell v. Wisconsin (2019) 588 U.S. 840, 853
(Mitchell). The plurality opinion held circumstances are exigent
when blood alcohol evidence is dissipating, as it always is, and a
pressing health, safety, or law enforcement need takes priority
over a warrant application. (Ibid. (plur. opn. of Alito, J.).) In just
a moment, we will apply this rule.
We shift from blood evidence to standoffs. Federal
constitutional law guides our analysis of standoffs and warrants.
The decision in Fisher v. City of San Jose (9th Cir. 2009) 558 F.3d
1069, 1076 (Fisher) held that, once police have probable cause for
a warrantless arrest, they need not obtain a warrant to cope with
a barricaded suspect. Fisher is not controlling, but we endorse its
sound reasoning.
The facts of the Fisher case are germane. Steven Fisher
threatened police on a common area near his apartment. (Fisher,
supra, 558 F.3d. at p. 1072.) More than 60 officers came to the
scene in the course of a 12-hour standoff in which Fisher, with
many guns, holed up in his apartment. Police finally talked
Fisher into surrendering. (Id. at p. 1073.)
Fisher sued the police for violating his civil rights,
contending their warrantless arrest violated his constitutional
rights. The Fisher opinion rejected this claim, on the following
logic. When Fisher threatened police, he gave them probable

13
cause for a warrantless arrest. (Fisher, supra, 558 F.3d. at p.
1075.) As the standoff progressed, police were not required
periodically to reassess whether the exigency persisted
throughout the standoff. The many hours of the fluid
engagement between Fisher and police represented a single
seizure of Fisher. (Id. at pp. 1077–1078.)
We adopt and apply the Fisher rule in the next section.
2
Jurors could find police did not need a warrant to enter
Valencia’s apartment. Officers witnessed him commit a felony
violation of Vehicle Code section 2800.2 by driving recklessly to
evade pursuing police. The prosecution charged Valencia with
this felony, and the jury convicted him on this count. Valencia’s
dangerous and bizarre conduct—wide-eyed laughing at police
during an irrational high-speed chase leading nowhere, ending
with a crash into a parked car—gave officers grounds for
suspecting Valencia’s blood would contain evidence of intoxicants.
The officers were justified in continuing their pursuit of Valencia
through the front door of his apartment in an effort to arrest him
before his metabolism eliminated evidence of intoxicated driving.
Under Mitchell, the circumstances were exigent because
the blood evidence was dissipating, as it always is, and a pressing
safety need took priority over a warrant application. (Mitchell,
supra, 588 U.S. at p. 853.) Valencia’s conduct had been
irrational, unpredictable, confrontational, and hazardous to the
public and himself. He had posed a flagrant risk to others, to
himself, and to the property of others. Once in his second-floor
apartment, would he try to escape via a fire exit, a balcony, or a
window? Would he try ropes, sheets, a hanging drop, or a wild
leap onto some intermediate surface? Would he harm himself?

14
Would he take hostages? Would he hurt people in the
apartment? Would he procure or fashion weapons? Would he
light fires? How rapidly would the situation evolve? For every
possibility, the answer for the pursuing police was: who knows?
No limits were apparent. And shocking surprises indeed
were in store. Valencia was on the move and actively and
irrationally dangerous. Police testified they were “trying to
eliminate possibilities and consider the various threats.” Once in
the bedroom, Valencia escalated the crisis with his .357 magnum.
The Fourth Amendment’s calculus of reasonableness must allow
police officers to make split-second judgments in circumstances
that are tense, uncertain, and rapidly evolving. (Graham v.
Connor (1989) 490 U.S. 386, 396–397; City & Cnty. of San
Francisco v. Sheehan (2015) 575 U.S. 600, 612 (Sheehan).)
Police had ample reason for immediately apprehending this
tornado of chaos. Bizarre pursuit behavior suggests intoxication,
and predicting what dangerous act will follow can be impossible.
(Cf. People v. Bipialaka (2019) 34 Cal.App.5th 455, 457 [after
using methamphetamine, the defendant ran a red light and
deliberately sped at another car without braking because ‘I was
just going crazy and felt like freaking them out’ ”].)
Exigent circumstances thus justified police entry through
the apartment door.
Once inside, police were not required to interrupt their
efforts to seek a warrant. Officers on the scene must be able to
devote their full attention to the threat they face. The Fourth
Amendment did not require them periodically to reassess
whether the exigency persisted throughout the standoff. (Fisher,
supra, 558 F.3d at p. 1077.) Exigencies can persist while police
pursue time-consuming courses of action. (Estate of Bing v. City

15
of Whitehall (6th Cir. 2006) 456 F.3d 555, 566–569; cf. Sheehan,
supra, 575 U.S. at p. 612 (two entries were part of a single,
continuous search or seizure, so the officers were not required to
justify the continuing emergency with respect to the second
entry).)
Imposing a warrant requirement in this standoff situation
would introduce another element of uncertainty into the complex
and dangerous calculus the officers confronted. “Police would be
forced to ponder with each passing moment whether the exigency
justifying the warrantless arrest that existed at the start of the
standoff had sufficiently dissipated such that they must
immediately divert one or more officers from the task of resolving
the standoff to the time-consuming project of obtaining a
warrant.” (Fisher, supra, 558 F.3d at p. 1079.)
The officers thus were lawfully performing their duties.
Valencia murdered Casillas to avoid or prevent a lawful arrest.
Overwhelming evidence supported these jury findings. Valencia’s
challenges to the special circumstances findings and the assault
convictions fail.
B
We turn to Valencia’s second argument. He fired six
bullets but was convicted of eight crimes based on gun
discharges: murder, four counts of attempted murder, and three
counts of assault with a gun. Valencia maintains this cannot be.
We must reverse two of his assault convictions, he claims,
because the number of these gun-related convictions cannot
exceed the number of bullets he fired.
We emphasize the remedy Valencia seeks pertains only to
two of his assault convictions. This result would knock the total
of the shooting offenses from eight to six. For purposes of this

16
argument, Valencia accepts six as the proper number of
convictions. Six was the number of bullets he fired.
To reiterate, the particulars of Valencia’s eight shooting
convictions are these:
1. Murder of Casillas;
2. Attempted murder of Nyugen;
3. Attempted murder of Officer Sutcliffe;
4. Attempted murder of Officer McNeeley;
5. Attempted murder of Officer Lucifora;
6. Assault with a firearm on Officer Samuels;
7. Assault with a firearm on Officer Pagtakhan; and
8. Assault with a firearm on Officer Hernandez.
Valencia’s argument does not address his other two
convictions, which were for felony evading and felon in possession
of a gun.
Valencia’s argument is incorrect. The number of
convictions need not equal or be fewer than the number of shots
fired. People v. Raviart (2001) 93 Cal.App.4th 258, 263–287, for
instance, affirmed two convictions for assault with a firearm
against a defendant who fired no shots at all. This result follows
from the simple fact that this crime can be complete without any
fired bullets. Merely pointing a gun can suffice. Indeed, one need
not point at the victim. It can be enough that defendants bring a
gun into a position where they could have used it against the
victim. (Id. at p. 266.)
Further to this point, the trial court properly instructed the
jury that CALCRIM No. 860 does not list among the elements of
assault with a firearm the requirement that the defendant fired a
gun. Valencia does not challenge this instruction.

17
These points demolish the argument about relating bullets
to convictions. Assault with a firearm does not require any shots
fired. The law contains no formula linking the number of
convictions to the number of flying bullets.
Valencia cites three cases that do not assist him.
People v. Smith (2005) 37 Cal.4th 733, 736 affirmed two
counts of attempted murder against a defendant who had fired
one bullet. This holding undercuts Valencia’s argument.
People v. Perez (2010) 50 Cal.4th 222, 225 held that firing
one shot at eight people constituted one offense of attempted
murder. The jury also convicted the defendant of eight counts of
assault for that one bullet shot. The high court wrote the
defendant “could properly be separately punished” for these eight
assault convictions. (Ibid.) In short, one fired bullet supported
eight assault convictions. Valencia cannot use this decision as
authority for overturning his assault convictions.
People v. McCloud (2012) 211 Cal.App.4th 788, 807 & fn.**
refused to allow citation of its analysis of assault counts. This
decision is not a basis for overturning Valencia’s assault
convictions.
Valencia’s argument that the conviction number cannot
exceed the shot number fails.
C
The parties rightly agree the trial court imposed an
erroneous sentence. The sentence must be corrected. Explaining
the error requires us to delve into the current intricacies of felony
sentencing, which are bewildering to newcomers and can be
challenging for even the most experienced and diligent bench
officers.

18
Our state has two different sentencing schemes:
determinate sentencing and indeterminate sentencing. (People v.
Felix (2000) 22 Cal.4th 651, 654; cf. Cassou & Taugher,
Determinate Sentencing in California: The New Numbers Game
(1978) 9 Pac. L.J. 5, 6–22 [recounting historical development];
Zimring, Hawkins, and Kamin, Punishment and Democracy
(2001) pp. 3–16, 109–115 [describing and assessing the advent of
1994 Three Strikes Law]; Vitiello Three Strikes: Can We Return
to Rationality (1997) 87 J. Crim. L. & Criminology 395, 400–432
[same].)
The jury convicted Valencia of five crimes carrying
determinate sentences:
1. Assault on Samuels with a firearm in violation of section
245, subdivision (d)(1);
2. Assault on Pagtakhan with a firearm in violation of
section 245, subdivision (d)(1);
3. Assault on Hernandez with a firearm in violation of
section 245, subdivision (d)(1);
4. Felony evasion in violation of Vehicle Code section
2800.2, and
5. Gun possession in violation of section 29800, subdivision
(a)(1).
As to the three assault counts, the jury found true the
allegations about firearm use in violation of subdivision (d) of
section 12022.53, which results in an enhancement with the
indeterminate term of 25 years to life.
The trial court ruled it would make these sentences
consecutive.
This situation spawned a complexity: the underlying
assault counts carried determinate sentences of four, six, or eight

19
years, while their enhancements were subject to the
indeterminate term of 25 years to life. The complexity was how
to aggregate these sentences when they were consecutive. The
key provision is section 1170.1.
Let us grasp the meaning of this section. We quote the
pertinent language in this statutory formula:
“Except as otherwise provided by law, and subject to
Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different
proceedings or courts, and whether by judgment rendered by the
same or by a different court, and a consecutive term of
imprisonment is imposed under Sections 669 and 1170, the
aggregate term of imprisonment for all these convictions shall be
the sum of the principal term, the subordinate term, and any
additional term imposed for applicable enhancements for prior
convictions, prior prison terms, and Section 12022.1. The
principal term shall consist of the greatest term of imprisonment
imposed by the court for any of the crimes, including any term
imposed for applicable specific enhancements. The subordinate
term for each consecutive offense shall consist of one-third of the
middle term of imprisonment prescribed for each other felony
conviction for which a consecutive term of imprisonment is
imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.”
(§ 1170.1, subd. (a) italics added.)
To reiterate and summarize, then, with consecutive
determinate sentences, the “subordinate term” for consecutive
offenses “shall consist of one-third of the middle term of
imprisonment . . . .” (§ 1170.1, subd. (a), italics added.)
The middle term varies, depending on the particular crime.

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For a gun assault on a police officer, the statutory terms
are four, six, or eight years. (§ 245, subd. (d)(1).) With this triad,
the middle term is six years. One third of six is two.
Under the statutory catchall provision for determinate
sentencing, the statutory triad for gun possession and also for
felony evading is 16 months, two years, or three years. (See
§ 29800, subd. (a)(1) [any person who has been convicted of a
felony and possesses any firearm “is guilty of a felony”]; Veh.
Code, § 2800.2, subd. (a) [if a person flees a pursuing peace officer
and drives in disregard for safety, the driver “shall be punished
by imprisonment in the state prison”]; § 1170, subd. (h)(1) [“a
felony punishable pursuant to this subdivision where the term is
not specified in the underlying offense shall be punishable by a
term of imprisonment in a county jail for 16 months, or two or
three years”].)
One third of a middle term of two years is eight months.
Following section 1170.1, then, the prosecution’s sentencing
memorandum recommended determinate sentencing for five of
Valencia’s convictions, as follows:
1. Assault on Samuels: eight years plus 25 years to life.
This was the “principal term” under subdivision (a) of section
1170.1.
2. Assault on Pagtakhan: two years (which is one-third of
the middle statutory term of six years) plus 25 to life. This was a
“subordinate term.”
3. Assault on Hernandez: two years (which is one-third of
the middle statutory term of six years) plus 25 to life. This also
was a “subordinate term.”

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4. Gun possession: eight months (which is one-third of the
middle statutory term of two years). This also was a
“subordinate term.”
5. Evading: eight months (which is one-third of the middle
statutory term of two years). This also was a “subordinate term.”
In two respects, the trial court departed from the
prosecution’s sentencing recommendations. First, the court
imposed the middle term of six years rather than the high term of
eight years for the first assault conviction. No one has challenged
this decision. The second departure, however, has created
controversy, because both parties on appeal say it was error.
This second departure concerned whether section 1170.1
governed.
Despite the prosecution’s urging that section 1170.1 did
govern, the trial court stated “the court feels otherwise.” Its logic
was that imposing indeterminate enhancements to an underlying
determinate offense meant section 1170.1 no longer applied: on
this view, the indeterminate enhancement made the
indeterminate sentencing law the governing authority for the
entire sentence on this charge. As a result, the court imposed a
consecutive sentence of six years plus 25 years to life for each of
the three assault counts. That is, the court did not reduce any
sentence to one-third of the middle term. The court also imposed
a consecutive sentence of two years on the evasion count and
stayed a sentence of two years for the gun count. Again, the
court did not reduce these sentences to one-third of the middle
term.
The court cited no authority for its view that the
indeterminate enhancements made section 1170.1 inapplicable.

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The rule is to the contrary. It applies when (1) a court
imposes consecutive terms for crimes carrying determinate
terms, as did the assault counts in this case, and (2) they are
accompanied by enhancements carrying indeterminate terms,
like Valencia’s firearm enhancements in this case under section
12022.53, subdivision (d). Under these circumstances, the
principal term and not the enhancement determines whether
section 1170.1, subdivision (a), applies. (People v. Sanders (2010)
189 Cal.App.4th 543, 558 (Sanders).)
The prosecution and the defense agree with this analysis.
Both cite Sanders as the governing case.
The proper approach thus was to impose one full term plus
four terms calculated at one-third the middle term.
The correct sentence with respect to one count of evading
an officer and three counts of a gun assault on a peace officer
thus is as follows:
1. A middle term of six years on one of the assault counts,
plus 25 years to life for the enhancement;
2. A consecutive term of two years (which is one-third of the
middle term) for the second assault count, plus 25 years to life for
the enhancement;
3. A consecutive term of two years for the third assault
count, plus 25 years to life for the enhancement;
4. A consecutive term of eight months for the evasion count,
and
5. A stayed term of eight months for the gun count.
(See § 1170.1, subd. (a).)
This correction lowers the aggregate determinate terms for
the four offenses from the current 20 years (six times three plus
two) to 10 years and eight months (six plus two, plus two, plus

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eight months). The technical error on the gun term has no
practical effect, because the court stayed that term.
Nevertheless, all the errors must be corrected.
DISPOSITION
We affirm in all respects except that we remand for the
trial court to correct the sentence as follows: reduce the term for
the felony evading sentence to eight months, and reduce the
determinate terms for two of the assault convictions to two years
each. Although the trial court stayed the sentence for illegal gun
possession by a felon, this imposed but stayed sentence likewise
must be corrected to eight months, which is one third of the
midterm of two years.

WILEY, J.

We concur:

STRATTON, P. J.

SCHERB, J.

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