Filed 9/30/26 P. v. Bischoff CA4/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084120
v. (Super.Ct.No. RIf1802195)
JARED GORDON BISCHOFF et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Jerry C. Yang, Judge.
Affirmed in part, vacated in part, and remanded with directions.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant
and Appellant, Jared Bishchoff.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant, Danny Serrano.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant
Attorneys General, A. Natasha Cortina and Christine Levingston Bergman, Deputy
Attorneys General, for Plaintiff and Respondent.
1
Jared Gordon Bischoff and Danny Jair Davila Serrano conspired to murder
Bischoff’s estranged wife, Tonya B. They also planned to kill Tonya’s boyfriend, Justin
Hilbert. Another accomplice, Bailey Sharp, was also part of the plan to kill Tonya and
Hilbert. Tonya survived the plan, but Hilbert was killed. Several weeks later, Bischoff
killed Sharp.
On the basis of those events, a jury convicted Bischoff and Serrano of the
premeditated murder of Hilbert and conspiracy to murder Tonya. (Pen. Code, §§ 182,
subd. (a)(1), 187, 189, subd. (a); unlabeled statutory citations refer to this code.) The jury
convicted Bischoff of several additional offenses, including the premeditated murder of
Sharp (§§ 187, 189, subd. (a)), the attempted kidnapping of Sharp (§§ 207, 664), evading
a pursuing peace officer (Veh. Code, § 2800.2), and possession of a controlled substance
for sale (Health & Saf. Code, § 11378). The jurors convicted Serrano of one other
offense, possession of a firearm by a felon. (§ 29800, subd. (a)(1).)
On appeal, Bischoff argues that the trial court prejudicially erred by admitting a
photograph of Hilbert holding his infant son. Serrano joins the argument. Bischoff
further argues that the true finding on the kidnapping-murder special circumstance with
respect to Hilbert’s murder is not supported by substantial evidence. Serrano argues that
the court erred by sentencing him under the three strikes law for the firearm offense,
because the People did not plead and prove any prior strikes. He further argues that the
court erroneously calculated his presentence custody credits. Finally, both defendants
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contend that we should direct the court to correct errors concerning certain fines in the
sentencing minute orders and the abstracts of judgment.
We vacate Serrano’s three strikes sentence for the firearm offense, direct the court
to resentence him on that count, and direct the court to correct his abstract of judgment in
another respect. We also remand for the court to (1) reconsider Serrano’s presentence
custody credits and (2) conduct further proceedings regarding defendants’ restitution
fines, consistent with People v. Kopp (2025) 19 Cal.5th 1 (Kopp). We otherwise affirm
the judgments.
BACKGROUND
I. Trial evidence
Tonya and Hilbert dated when they were teenagers. They broke up for several
years in her early 20s, and during that time she met and married Bischoff.
Tonya and Bischoff were together for two to three years. They separated because
Bischoff was controlling and exhibited “violent tendencies.” Bischoff owned weapons,
including a knife and a shotgun. Early in the marriage, he threatened to kill Hilbert if
Tonya ever went back to him. Bischoff was jealous of Hilbert and did not like that Tonya
had a past with him.
Bischoff was in the navy and was stationed in San Diego. He was deployed for
roughly one year after he and Tonya separated, and they agreed that they would finalize
their divorce when he returned from deployment. He paid her spousal support in the
meantime. Tonya was afraid of him and communicated with him mostly through her
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mother after the separation. Bischoff had a life insurance policy on Tonya, which paid
out $100,000 in the event of her death. The policy was effective until they divorced.
After Bischoff deployed, Tonya resumed her relationship with Hilbert and had a
child with him. Hilbert used methamphetamine and marijuana and had struggled with
addiction since high school. He had gotten clean when Tonya became pregnant, and he
seemed happier and excited to be a father.
After Bischoff returned from deployment, he frequented a hookah lounge in
Riverside. Sharp was often there with him, and the two of them also hung out with
Serrano at the lounge. Richard O. worked at the hookah lounge and became friends with
Bischoff and Sharp around February or March 2016. Richard occasionally saw cocaine
in Bischoff’s car, and Sharp was helping him sell it. Bischoff and Sharp also appeared to
be in a romantic relationship; he professed his love for her and said that he wanted to
marry her.
In their conversations at the hookah lounge, Bischoff and Richard talked about
Tonya. Bischoff complained about how much money the divorce was costing him and
how he was going to “lose everything” once the divorce was final. Richard also
overheard Bischoff, Sharp, and Serrano discussing a plan to kill Tonya for insurance
money.1 They were planning to go to Tonya’s “house and get her.” In addition, Richard
1 Richard’s testimony about who was present for the conversation was inconsistent.
He initially testified that Serrano was not present during the conversation and that he
overheard only Bischoff and Sharp. He later testified that Serrano was present and
participated in the conversation, but he also said that he could not recall if Serrano was
there.
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overheard Bischoff and Serrano discussing a shotgun, and Bischoff often mentioned
having a shotgun at the naval base.
Hilbert was killed in June 2016. At the time, Tonya was living with her mother in
Riverside. Hilbert did not live there, but he visited the home every day to spend time
with Tonya and their infant son. Hilbert did not have a place of his own, so he stayed
with a friend or slept in his car down the street from Tonya’s home.
A few days before Hilbert’s death, Sharp sent Hilbert a “friend request” on social
media. Hilbert did not know her, but he exchanged messages with her. The next day, he
and his friend met Sharp at a fast food restaurant to buy methamphetamine from her.
Tonya last saw Hilbert on June 20, when they had an argument at her home.
Tonya had recently received social media messages from Sharp, claiming that Hilbert
was cheating on Tonya with Sharp and that he was using methamphetamine again.
Tonya confronted him with the messages, and Hilbert admitted that he was talking to
Sharp and using drugs with her. They “made up” and had dinner, and Hilbert left at
around 7:30 or 8:00 p.m.
Sharp sent Tonya more social media messages that night starting at around 10:00
or 11:00 p.m. Their conversation continued until nearly 2:00 a.m. on June 21. Sharp said
that Hilbert had reached out to buy more methamphetamine and that she had screenshots
and voice messages to prove it, but she could not send them. Sharp asked Tonya to meet
so that she could share the proof. Sharp proposed that they meet at Tonya’s house or a
nearby gas station, but Tonya declined.
5
Sharp’s cell phone data showed that she received a message from Bischoff at
around 11:00 p.m. on June 20, asking her to contact him on “Snap.” The data showed
that she was near the hookah lounge. Snapchat is a social media application that permits
private conversations, because the application does not retain the content of messages
exchanged by users.
Sharp’s cell phone data next placed her near Tonya’s home at roughly 11:30 and
11:55 p.m. on June 20. The data also showed that she and Bischoff had a phone call at
midnight, which was one minute and 45 seconds long. Then, from about 1:30 a.m. to
1:45 a.m. on June 21, Sharp’s cell phone data placed her at Lake Matthews. Bischoff’s
cell phone data placed him at the naval base in San Diego, where he lived.
A local citizen found Hilbert’s body near Lake Matthews at approximately 2:00
a.m. on June 21. The call for service occurred at 2:11 a.m. Hilbert had a shotgun wound
above his left ear, which caused his death. There was a significant amount of blood
pooling around Hilbert’s head on the road where he was found, indicating that he was
shot there. He also had numerous cuts and abrasions on his neck, chest, and arms and a
stab wound on his left hand. Some of those wounds were defensive wounds. The cuts
appeared to have been made with a dull knife or other implement. The pattern of the
blood on his clothing indicated that he was in a seated position when the cuts and stab
wound were inflicted.
Around the same time that Hilbert’s body was found, Sharp’s cell phone data
placed her near the hookah lounge, and Sharp and Bischoff had a roughly five-minute
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call. Richard recalled that Sharp and Serrano came to the hookah lounge one night
between 2:00 and 3:00 a.m. Serrano was driving a car that looked like Hilbert’s car, and
Sharp was driving Bischoff’s car. Serrano was holding a knife when he entered the
lounge, and he had blood on his clothes. The tip of the knife appeared to be broken.
Serrano went directly to the bathroom to change, threw his bloody clothes in the
bathroom trash can, and told Richard to dispose of the trash bag. He threatened to kill
Richard if Richard told anyone.
Sharp’s cell phone data showed her traveling south toward San Diego starting at
around 5:00 a.m. on June 21. The cell phone data for Sharp, Serrano, and Bischoff
showed that all three of them were near the naval base in San Diego later on June 21.
Carlos A. was Richard’s friend and often went to the hookah lounge when Richard
was working. Richard introduced Carlos to Serrano, Bischoff, and Sharp. Sometime
after Hilbert’s death, Carlos and Richard encountered Sharp at the hookah lounge. She
told them that she and Serrano stabbed and shot “some guy” in the face at Lake
Matthews. Although she did not specify what type of gun they used, her hands mimicked
shooting a shotgun. On a second occasion, she told them that she pulled the trigger
because Serrano could not do it. She said that the plan was to kill the guy’s girlfriend and
child as well and that the killing was “about money.” Bischoff was going to get 50
percent of the payout, and Sharp and Serrano were going to get 25 percent each. Sharp
said that she and Serrano went to Tonya’s house and knocked on the door, but Tonya did
7
not answer. Later, after Tonya and Hilbert got into a fight, Hilbert was sitting outside the
house in his car, so Sharp and Serrano “grabbed [Hilbert] instead.”
In a separate conversation, Serrano told Carlos that he pulled the trigger, not
Sharp. Serrano also said that he and Sharp were doing someone a favor. At some point
after Hilbert’s death, Serrano asked Carlos to hide a shotgun, but Carlos refused. Serrano
said that the shotgun was “hot,” meaning that it had been used.
Several weeks after Hilbert’s death, on July 10, 2016, Bischoff killed Sharp.
Sharp had asked Richard to accompany her to a park, where she was going to meet
Bischoff. Sharp and Bischoff were fighting, and she was afraid to meet him by herself.
Richard went to the meeting spot and stood some distance away. Bischoff arrived,
jumped out of his car, and put his arm around Sharp like he was hugging her, but she
struggled to get away from him. He then stabbed Sharp multiple times and fled in his
car. Sharp sustained over 25 separate injuries, including stab wounds to her heart and
lung. The multiple sharp force injuries caused her death.
Bischoff was apprehended the next day, July 11. Officers in San Diego attempted
to stop him, and a vehicle pursuit ensued. The officers pursued him to his father’s home
in Riverside, where he was arrested. Officers found a large tactical knife in Bischoff’s
car. Blood on the knife matched Sharp’s DNA. The officers also found
methamphetamine in the car, and the quantity was consistent with possession for sale.
Hilbert’s car was found on July 13 in Santa Ana. Serrano’s DNA was found in the
interior of the car, and his palm print was on the exterior of the driver’s door. The blood
8
on the passenger seat and the passenger side door indicated that Hilbert’s cuts and stab
wounds could have been inflicted while he was in the passenger seat. Serrano’s cell
phone data placed him in the area of Hilbert’s car on several occasions before Hilbert’s
death. Sharp’s cell phone data placed her in the same area on June 21 at roughly 4:30
a.m.
Bischoff and Tonya’s divorce was finalized on June 21, 2016, the day that
Hilbert’s body was found. Before that date, Bischoff asked Tonya’s mother what day the
divorce would be finalized.
II. Verdict and sentencing
The jurors convicted Bischoff and Serrano of the premeditated murder of Hilbert
and conspiracy to murder Tonya. The jurors also found that both defendants committed
Hilbert’s murder while they were engaged in or accomplices in the commission of
kidnapping. (§ 190.2, subd. (a)(17)(B).) And with respect to both defendants, the jurors
found that a principal was armed with a firearm in the commission of Hilbert’s murder.
(§ 12022, subd. (a)(1).)
The jurors further convicted Bischoff of the premeditated murder of Sharp, the
attempted kidnapping of Sharp, evading a pursuing peace officer, and possession of a
controlled substance for sale. The jurors found that Bischoff was convicted of more than
one murder in this proceeding and personally used a deadly and dangerous weapon in
connection with Sharp’s murder. (§§ 190.2, subd. (a)(3), 12022, subd. (b)(1).)
9
Finally, the jurors convicted Serrano of possession of a firearm by a felon, and
Serrano admitted that he had a prior serious felony conviction for violating section 273.5,
subdivision (a) (willful infliction of corporal injury on an intimate partner).
The court sentenced Bischoff to life without the possibility of parole for Hilbert’s
murder and Sharp’s murder, 25 years to life for conspiracy to murder Tonya, and a total
determinate term of three years 10 months for the remaining offenses and enhancements.
The court sentenced Serrano to life without the possibility of parole for Hilbert’s
murder and 25 years to life for conspiracy to murder Tonya. With respect to the firearm
offense, the court sentenced Serrano to a determinate term of nine years.
DISCUSSION
I. Photograph of Hilbert and his infant son
Bischoff argues that the court prejudicially erred by admitting a photograph of
Hilbert smiling and holding his infant son, and Serrano joins the argument. We agree
that the court erred, but the error was harmless.
A. Additional background
At trial, both Bischoff and Serrano objected to admission of the photograph.
Defense counsel argued that the photograph would evoke sympathy from the jurors,
resulting in undue prejudice under Evidence Code section 352. The prosecutor argued
that the photograph was relevant because there was some evidence that defendants and
Sharp had conspired to kill the infant in addition to Tonya and Hilbert. The prosecutor
also explained that the picture was taken around the time of Hilbert’s death.
10
The court ruled that the photograph was admissible. The court reasoned that the
photograph evoked “some level” of emotional response, but it was not overly prejudicial.
As to the probative value of the evidence, the court noted that the photograph showed the
targets of the alleged conspiracy, which was the subject matter of the case. The court
also observed that the People were seeking to admit only one photograph of the infant,
and the infant was turned away from the camera so that his face was not visible.
The prosecutor introduced the photograph during Tonya’s examination. Tonya
testified that the photograph showed Hilbert and their infant child and that the photograph
accurately depicted Hilbert and their child in 2016. The prosecutor also showed it to a
witness who said that Hilbert was one of his best friends. The friend testified about the
“friend request” that Hilbert received from Sharp and the meeting between Hilbert and
Sharp at which she sold him methamphetamine. As to the photograph, the friend testified
that it depicted Hilbert around the time of his death.
B. Analysis
Relevant evidence generally is admissible but may be excluded under Evidence
Code section 352. (Evid. Code, §§ 210, 350, 352.) Section 352 grants the court
discretion to “exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
We review for abuse of discretion the court’s ruling under Evidence Code section 352.
(People v. Johnson (2019) 8 Cal.5th 475, 521.)
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For purposes of Evidence Code section 352, “prejudicial” means that the evidence
“‘uniquely tends to evoke an emotional bias against a party as an individual, while having
only slight probative value with regard to the issues.’” (People v. Thomas (2012) 53
Cal.4th 771, 807.) Our Supreme Court has “repeatedly cautioned against the admission
of photographs of murder victims while alive unless the prosecution can establish the
relevance of such items. [Citations.] Otherwise, there is a risk that the photograph will
merely generate sympathy for the victims.” (People v. DeSantis (1992) 2 Cal.4th 1198,
1230 (DeSantis).)
The court in this case abused its discretion by admitting the photograph of Hilbert
and his infant son. The photograph had no relevance or probative value. There was no
dispute about Hilbert’s identity or his appearance. Nor was there any evidence
suggesting that the mother of his child or his close friend could not correctly identify him.
(See People v. Osband (1996) 13 Cal.4th 622, 676-677 [a neighbor identified the murder
victim by the wrong last name, and a photograph of the victim “helped lay to rest a
question the jury might otherwise have had about whether [the neighbor] actually knew
whom she saw”].) The People argue that the photograph was relevant to show one of
Bischoff’s motives, namely, anger that Tonya had a child with Hilbert not long after her
separation from Bischoff. But there was no dispute about the existence of the child or
who the father was. Tonya testified that she and Hilbert had a child together before the
People introduced the photograph. And even if the infant was also a target of the
conspiracy, the infant’s appearance was not relevant. The People further argue that the
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photograph was relevant to rebut any bad character evidence, such as the evidence that
Hilbert was using drugs and “may have interacted inappropriately with Sharp.” They do
not persuasively explain how the photograph evidenced Hilbert’s good character, and we
do not see how it was relevant to his character.
For all of these reasons, the photograph of the smiling murder victim holding his
infant child was likely to “merely generate sympathy for the victim[]” and evoke an
emotional bias against defendants. (DeSantis, supra, 2 Cal.4th at p. 1230.) That was the
type of undue prejudice that Evidence Code section 352 guards against. And that risk of
undue prejudice substantially outweighed the nonexistent probative value of the
evidence.
Nevertheless, the admission of the photograph was harmless. There is no
reasonable probability that defendants would have achieved a better outcome if the court
had excluded the photograph, because “this was not a close case in which sympathy for
the victim[] might have led the jury to improperly convict.” (DeSantis, supra, 2 Cal.4th
at p. 1231.) The evidence showed that Bischoff threatened to kill Hilbert if Tonya got
back together with Hilbert. The evidence also showed that Bischoff acted on his
expressed intent with the help of his friends, Serrano and Sharp. Bischoff, Serrano, and
Sharp were overheard planning to kill Tonya for life insurance proceeds, and Sharp told
witnesses that the plan was to kill Tonya, Hilbert, and their child. Tonya was afraid of
Bischoff and communicated with him only through her mother, so the group could not
rely on Tonya willingly meeting Bischoff. Instead, Sharp reached out to Hilbert days
13
before his death and sold him drugs. Sharp then contacted Tonya to convey that Hilbert
was cheating on Tonya and using drugs. Hilbert often slept in his car near Tonya’s
house. The night of Hilbert’s death, Sharp had a roughly two-minute call with Bischoff
when she was outside of Tonya’s house at midnight. Sharp’s cell phone data later placed
Sharp at Lake Matthews at about 1:30 a.m., which is where Hilbert’s body was found at
roughly 2:00 a.m. Sharp said that she and Serrano encountered Hilbert in his car outside
of Tonya’s house and “grabbed” him. Sharp also tried to lure Tonya out of her house by
offering to show her proof that Hilbert wanted to buy more drugs, but Tonya refused to
meet.
Sharp’s cell phone data then placed her at the hookah lounge when Hilbert’s body
was found. That was consistent with Richard’s memory that she and Serrano arrived at
the lounge between 2:00 and 3:00 a.m. one night. Serrano was driving a car resembling
Hilbert’s car, and Sharp was driving Bischoff’s car. Serrano was wearing bloody clothes
and was holding a knife. He changed clothes in the restroom, threw the clothes in the
bathroom trashcan, directed Richard to dispose of the trash bag, threatened Richard, and
told him to keep quiet. The cell phone evidence showed that Sharp and Serrano then
dumped Hilbert’s car in Santa Ana, where it was later found with Serrano’s palm print on
it and his DNA inside it. The physical evidence also supported the reasonable inference
that Hilbert was stabbed and cut in his car but shot with a shotgun at Lake Matthews.
Bischoff owned a shotgun. The cell phone evidence also placed Sharp, Serrano, and
Bischoff together at the naval base in San Diego after Hilbert’s murder. Both Sharp and
14
Serrano admitted shooting Hilbert, either for money or because they were doing someone
a favor. All of the pertinent events occurred right before Bischoff and Tonya’s divorce
was finalized, at which point the life insurance policy would no longer cover Tonya.
In sum, the evidence showing that Bischoff, Serrano, and Sharp executed a plan to
murder Hilbert was strong. Given the strength of the evidence, it is not reasonably
probable that defendants would have achieved a better result if the court had excluded the
photograph of Hilbert. (People v. Boyette (2002) 29 Cal.4th 381, 424 [any error in
admitting photographs of the victims “was manifestly harmless in light of the strong
evidence of guilt”]; People v. Kimble (1988) 44 Cal.3d 480, 499 [error in admitting a
photograph of the victims was not prejudicial because the case against the defendant was
“quite strong”].)
Bischoff also argues that the admission of the photograph violated his
constitutional right to due process, but the argument lacks merit. The “admission of
evidence, even if erroneous under state law, results in a due process violation only if it
makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.)
The prosecutor used the photograph very briefly on two occasions. In the context of the
two-week trial, the evidence was far from significant. We are not persuaded that
admission of the photograph rendered the trial fundamentally unfair. (People v. Bonilla
(2007) 41 Cal.4th 313, 355 [one line of inadmissible hearsay was “inconsequential” and
did not render the defendant’s trial fundamentally unfair].)
15
For all these reasons, the court erred by admitting the photograph of Hilbert
holding his infant child, but the error was not prejudicial.
II. Kidnapping-murder special circumstance
Bischoff argues that the record does not contain substantial evidence supporting
the jury’s true finding on the kidnapping-murder special circumstance with respect to
Hilbert’s murder. (§ 190.2, subd. (a)(17)(B).) We disagree.
In general, proof of kidnapping requires proof of three elements: “‘(1) a person
was unlawfully moved by the use of physical force or fear; (2) the movement was
without the person’s consent; and (3) the movement of the person was for a substantial
distance.’” (People v. Hartland (2020) 54 Cal.App.5th 71, 77.)
In order to prove the special circumstance, the prosecutor must show that the
murder was committed while the defendant was engaged in or was an accomplice in the
commission of kidnapping. (§ 190.2, subd. (a)(17)(B).) Conspiracy and aiding and
abetting are theories of accomplice liability. (See People v. Prettyman (1996) 14 Cal.4th
248, 259; People v. Jenkins (2000) 22 Cal.4th 900, 1024.) The court thus instructed the
jurors that the People had to prove that (1) defendants committed, aided and abetted, or
were members of a conspiracy to commit kidnapping, and (2) defendants intended to
commit kidnapping, intended to aid and abet the perpetrator in committing kidnapping, or
intended that one or more members of the conspiracy commit kidnapping. (CALCRIM
No. 731.)
16
“‘Evidence of a defendant’s state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as direct evidence to support’” a jury’s finding.
(People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) We review the jury’s finding on the
kidnapping-murder special circumstance for substantial evidence. (People v. Bonilla
(2007) 41 Cal.4th 313, 355.) We “review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find” the special circumstance true “beyond a reasonable doubt.” (People v.
Hillhouse (2002) 27 Cal.4th 469, 496.) We draw all reasonable inferences in support of
the finding, and we do not resolve credibility issues or evidentiary conflicts. (People v.
Penunuri (2018) 5 Cal.5th 126, 142.) The resolution of those matters is the exclusive
province of the jury. (Ibid.)
Bischoff acknowledges that substantial evidence supports the conclusion that he
intended to kill Hilbert. And he does not challenge the evidence that Hilbert was
murdered while Serrano and Sharp were engaged in kidnapping Hilbert. Instead,
Bischoff argues that the evidence was insufficient to show that he intended to kidnap
Hilbert, intended to aid and abet the kidnapping of Hilbert, or intended that Sharp and
Serrano kidnap Hilbert.
But there is substantial evidence from which a rational trier of fact could have
found the necessary intent. The evidence showed that Sharp and Serrano encountered
Hilbert in his car outside of Tonya’s house. Hilbert left Tonya’s house that night at
17
around 7:30 or 8:00 p.m., and he often slept in his car nearby. Sharp’s cell phone data
showed that she was near Tonya’s house at around midnight, when she had a nearly two-
minute call with Bischoff. The data next placed her at Lake Matthews from about 1:30
a.m. to 1:45 a.m., where Hilbert’s body was found around 2:00 a.m. The physical
evidence showed that he was shot at Lake Matthews. The jurors could reasonably infer
from the foregoing evidence that during the call at midnight, Sharp and Bischoff
discussed the circumstances that Sharp encountered outside Tonya’s house, namely, that
Hilbert was there in his car. The jurors could also reasonably infer that Sharp and
Serrano had Bischoff’s shotgun, Bischoff knew that his accomplices had the shotgun, he
would not want them to shoot Hilbert right outside of Tonya’s house, and Bischoff
therefore would have wanted them to move Hilbert to a more remote location. The jurors
could therefore reasonably conclude that Sharp and Bischoff discussed forcibly moving
Hilbert. And the record supports the further reasonable conclusion that Sharp and
Serrano would have consulted Bischoff on what to do with Hilbert, because Bischoff was
driving the plan—he wanted to kill his estranged wife and her new partner, and he was
going to share the life insurance proceeds with his accomplices. In short, substantial
evidence supports the conclusion that Bischoff knew that his accomplices were going to
kidnap Hilbert and intended that they do so. The fact that it was possible to draw other
reasonable inferences from the evidence is irrelevant. (People v. Hill (1998) 17 Cal.4th
800, 850.)
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For all these reasons, we reject Bischoff’s substantial evidence challenge to the
kidnapping-murder special circumstance.
III. Serrano’s sentence under the three strikes law
Serrano argues that the People did not plead and prove that he had a prior strike,
so the court erred by sentencing him under the three strikes law for the firearm offense.
We agree.
A. Additional background
The operative information alleged that Serrano had a prior serious felony (a
violation of section 273.5) “within the meaning of Penal Code section 667, subdivision
(a).” Subdivision (a) of section 667 subjects a defendant to a five-year sentence
enhancement—“a so-called ‘nickel prior.’” (People v. Fletcher (2025) 18 Cal.5th 576,
582.) The information did not allege that the prior conviction qualified as a prior strike
and did not otherwise contain allegations citing the three strikes law.
During trial, defense counsel moved to bifurcate trial on the prior serious felony
allegation. The court asked Serrano if it was his “intent to bifurcate the trial on [his]
priors,” and Serrano answered in the affirmative. The court granted the request, again
referring to trial on Serrano’s “priors.” The minute order of the proceedings states that
Serrano made an oral motion to bifurcate the “prior,” and the court granted the motion.
At a later hearing, Serrano waived his right to a jury trial on the allegation. The
prosecutor referred to the relevant allegation as a “strike prior.” The court then asked:
“So Mr. Serrano, do you understand that you do have a right to have a jury consider those
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facts regarding your strike prior and that they would have to find unanimously beyond a
reasonable doubt the truth of those allegations; do you understand that?” Serrano
answered affirmatively and waived his right to a jury trial, and defense counsel joined in
the waiver. The minute order of the proceedings states: “Prior conviction will be
bifurcated and a bench trial will be held.”
The People did not file a sentencing brief. Serrano’s probation report noted that
there was a pending allegation for a prior serious felony enhancement, citing section 667,
subdivision (a). But the probation officer’s sentencing recommendation did not address
punishment for the prior serious felony enhancement, and the report did not mention the
three strikes law.
At the sentencing hearing, defense counsel stated that Serrano wanted to admit
“the prior felony.” The court asked Serrano: “And is it your intent to waive and give up
that right [to a bench trial], and instead agree by stipulation that on or about June 2nd,
2015, in the County of Riverside, State of California, that you were convicted for the
crime of inflicting corporal injury on a spouse with great bodily injury, a serious felony in
violation of Penal Code section 273.5? [¶] Do you admit that you sustained that
conviction?” Serrano answered affirmatively, counsel joined, and the court found that
the “prior conviction has been proven beyond a reasonable doubt.” The minute order for
the proceedings states: “Defendant Admits Prior(s) 1.”2
2 For purposes of the enhancement under subdivision (a)(1) of section 667, a
“‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”
(§ 667, subd. (a)(4).) A serious felony for purposes of the three strikes law is also
20
The court announced Serrano’s sentence, including the middle term of two years
for felon in possession of a firearm. The court stated that it was adding five years for the
“nickel prior,” so the total sentence on that count was seven years. The prosecutor then
stated that “there is the strike prior, which would double the two years to four years with
the nickel prior.” The court revised the sentence to nine years, consisting of two years
doubled under the three strikes law, plus five years for the prior serious felony
enhancement (§ 667, subd. (a)(1)). The court asked defense counsel whether he had “any
objections to that calculation.” Counsel replied: “No, your Honor.” The court stayed the
nine-year term under section 654.3
B. Analysis
The three strikes law imposes an alternative sentencing scheme if the defendant
has been convicted of a felony and it has been “pled and proved” that the defendant has
one or more prior serious or violent felony convictions. (§§ 667, subds. (c), (e), 1170.12,
subds. (a), (c).) The three strikes law thus “requires that prior felony convictions be
pleaded and proved.” (People v. Sawyers (2017) 15 Cal.App.5th 713, 720 (Sawyers);
§§ 667, subd. (f)(1), 1170.12, subd. (d)(1) [“The prosecuting attorney shall plead and
prove each prior serious or violent felony conviction”].) In addition to the statutory
defined as a serious felony listed in section 1192.7, subdivision (c). (§§ 667, subd. (d)(1),
1170.12, subd. (b)(1).)
3 The court imposed a sentence of 25 years to life for conspiracy to commit murder
but did not impose a three strikes sentence on that count (§§ 182, subd. (a), 190, subd.
(a)), even though the three strikes law provides that the “minimum term for an
indeterminate term shall be twice the term otherwise provided” if the defendant has one
prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
21
requirement, the defendant has a due process right to fair notice of the specific sentence
enhancements or alternative sentencing schemes that will be invoked to increase
punishment. (Sawyers, at p. 720.) “The ‘touchstone of determining the adequacy of an
accusatory pleading is whether the defendant had adequate notice of the charges against’”
them. (Id. at p. 723.)
As a preliminary matter, the People contend that Serrano forfeited any argument
concerning his three strikes sentence by failing to object at the sentencing hearing. We
exercise our discretion to reach the merits of Serrano’s argument to forestall any claim of
ineffective assistance of counsel. (People v. Crittenden (1994) 9 Cal.4th 83, 146.) We
also exercise our discretion to reach the merits because the claimed error “affected
substantial rights by depriving [Serrano] of timely notice of the potential sentence he
faced.” (People v. Anderson (2020) 9 Cal.5th 946, 963 (Anderson).)
On the merits, we agree with Serrano: The People failed to plead and prove that
he had a prior strike conviction. The operative information pled that he had a prior
serious felony conviction under subdivision (a) of section 667, which subjected him to a
sentence enhancement of five years. But it did not plead that the conviction qualified as a
prior strike subjecting him to the alternative sentencing scheme of the three strikes law.
And when Serrano admitted the prior felony, he admitted only that he sustained a prior
conviction for violating section 273.5. The court then found that the “prior conviction
has been proven beyond a reasonable doubt.” Neither his admission nor the court’s
finding referred to the three strikes law. The court therefore erred by imposing a three
22
strikes sentence. (Sawyers, supra, 15 Cal.App.5th at pp. 724, 726 [court erred by
imposing a three strikes sentence when the information alleged a prior serious or violent
felony under § 1170, subd. (h)(3), and a prior prison term enhancement under § 667.5,
subd. (b), but did not refer to the three strikes law].)
The People acknowledge that the three strikes law contains a pleading
requirement, but they argue that Serrano nevertheless had adequate notice that he would
be sentenced under the three strikes law. They point out that the prosecutor and the court
used the term “strike prior” when Serrano waived his right to a jury trial on the
allegation. But the one-time reference to the prior conviction as a strike did not give
Serrano adequate notice that he faced the possibility of three strikes sentencing. Both
before and after that, the parties and the court referred to the prior serious felony
allegation as a prior, a prior conviction, or a prior felony, and the minute orders for the
proceedings never referred to the prior conviction as a strike. The probation officer’s
sentencing recommendation did not mention the three strikes law, and the People did not
file a sentencing brief. The record thus lacks clarity concerning the allegation and did not
cure the pleading defect. (Sawyers, supra, 15 Cal.App.5th at p. 723 [court’s sole
reference to a prior conviction allegation as a strike “lacked meaningful context” and
“was insufficient to give” the defendant “notice that he was subject to Three Strikes
sentencing”].) It was “the People’s burden to properly plead” the allegations under the
three strikes law, not Serrano’s “responsibility to ferret them out.” (Id. at p. 727.)
23
Moreover, the violation of the pleading and proof requirement prejudiced Serrano.
The pleading requirement “is meant to give sufficient notice to permit the defense to
make informed decisions about the case.” (Anderson, supra, 9 Cal.5th at p. 964 [failure
to plead a particular firearm enhancement was not harmless when the defendant received
notice midway through the sentencing hearing, which was “too late to consider the
prosecution’s pretrial plea deal or reshape his trial strategy”].) The People contend that
any error was harmless, because the prior serious felony allegation gave Serrano “a
reasonable opportunity to prepare and present a defense,” and the failure to allege the
applicability of the three strikes law “could not have possibly changed the defense
strategy or altered any of appellant’s ‘key decisions[,]’ including whether to admit the
allegation or what strategy to deploy at trial.”
We are not persuaded that Serrano’s defense strategy would not have changed.
That is, there is a reasonable probability that he would have changed his strategy in at
least one significant respect: He may have moved to strike or dismiss any prior strike
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The
enhancement that the People actually pled subjected Serrano to an additional five years in
prison. But a properly pled and proven three strikes allegation subjected Serrano to twice
the term otherwise provided, including the minimum term for indeterminate sentences.
(§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) Accordingly, he could have received 50
years to life for the conspiracy count, rather than 25 years to life. (See fn. 3, ante.) It is
reasonably probable that he would have changed his strategy by filing a Romero motion
24
if he had notice of the potential doubling of that minimum term. A Romero motion asks
the court to consider evidence on a range of issues, including the nature and
circumstances of the present felonies, the nature and circumstances of the prior felonies,
and the particulars of the defendant’s “background, character, and prospects.” (People v.
Williams (1998) 17 Cal.4th 148, 161.) A competent motion would have required
preparation and could not have been raised orally at the sentencing hearing, when the
court announced its intention to impose a three strikes sentence. The violation of the
statutory pleading requirement therefore was prejudicial. (People v. Watson (1956) 46
Cal.2d 818, 836.) And for the same reasons, to the extent that the pleading defect
violated Serrano’s due process right to fair notice, the People have not shown that the
error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S.
18, 24; In re Vaquera (2024) 15 Cal.5th 706, 726 [the People’s failure to give the
defendant notice of his potential sentence under the one strike law violated his right to
due process and was not harmless].)
In sum, the People did not properly plead and prove the applicability of the three
strikes law, so the court erred by imposing a three strikes sentence on Serrano for count 2
(felon in possession of a firearm). The violation of the pleading and proof requirement
prejudiced Serrano. We therefore vacate his sentence on count 2 and direct the court to
resentence him on that count without applying the three strikes law.4
4 The record also contains a clerical error with respect to the sentence on count 2.
Serrano received a determinate term for that count, but the count appears on the abstract
of judgment for Serrano’s indeterminate terms (Judicial Council form CR-292). The
court should have prepared a separate abstract of judgment for the determinate term
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IV. Restitution fines
Bischoff and Serrano argue that we should direct the court to correct the record
concerning their restitution fines. They contend that the court found them to be indigent
and waived their restitution fines, but the abstracts of judgment and sentencing minute
orders do not reflect that. We remand for the court to conduct further proceedings on the
issue under Kopp.
At the sentencing hearing, the court found that Serrano did not have the “ability to
pay the fines and fees” and “waive[d] them per” People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas). Counsel for Bischoff also asked the court to “dismiss[] or set aside” any
fines under Dueñas, and the court “waive[d] the fines and fees” on the ground that
Bischoff was indigent.
With respect to both defendants, the minute orders of the proceedings state:
“Court makes a finding of indigency. [¶] … [¶] Court orders defendant to pay a
restitution fine [PC 1202.4(b)] in the amount of $10000.00. Execution is stayed. [¶] Pay
additional Parole Revocation restitution fine in the amount of $10000.00 pursuant to
1202.45(c); fine is suspended unless parole is revoked.” Defendants’ abstracts of
judgment reflect that the court imposed a restitution fine of $10,000 and a parole
revocation restitution fine in the same amount. But they contain a note in the “Other
orders” section stating that execution of the restitution fine “is stayed.”
(Judicial Council form CR-290). We therefore direct the court to (1) correct Serrano’s
abstract of judgment for his indeterminate terms by removing count 2, and (2) prepare a
separate abstract of judgment reflecting his determinate term on count 2.
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Section 1202.4 requires the court to impose a restitution fine “[i]n every case
where a person is convicted of a crime,” unless the court “finds compelling and
extraordinary reasons for not doing so and states those reasons on the record.” (§ 1202.4,
subd. (b); id., subd. (c).) For felony convictions, the fine must be at least $300 but not
more than $10,000. (§ 1202.4, subd. (b)(1).) The amount of the fine “shall be set at the
discretion of the court and commensurate with the seriousness of the offense.” (Ibid.)
“A defendant’s inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine,” but inability to pay may be considered in
determining the amount of the fine. (§ 1202.4, subds. (c), (d).)
Section 1202.45 requires the court to impose a “parole revocation restitution fine”
whenever the defendant’s sentence “includes a period of parole.” (§ 1202.45, subd. (a).)
The parole revocation restitution fine shall be the same amount as the restitution fine
(ibid.), and the fine “shall be suspended unless the person’s parole … is revoked” (id.,
subd. (c)).
Dueñas held that “although the trial court is required by … section 1202.4 to
impose a restitution fine, the court must stay the execution of the fine until and unless the
People demonstrate that the defendant has the ability to pay the fine.” (Dueñas, supra, 30
Cal.App.5th at p. 1172.) The Dueñas court based its holding on the defendant’s
constitutional right to due process. (Id. at p. 1171.)
After this appeal was fully briefed, our Supreme Court decided Kopp. The Kopp
court expressly disapproved of Dueñas’s reasoning concerning restitution fines. (Kopp,
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supra, 19 Cal.5th at p. 23 & fn. 17.) Our high court held that there is no “due process
requirement to hold an ability to pay hearing before imposing” the restitution fine. (Id. at
p. 23.) Rather, the “excessive fines analysis” under the federal and state Constitutions,
“which considers ability to pay, is the proper vehicle to challenge” the restitution fine.
(Kopp, at p. 23; U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
The trial court waived Bischoff’s and Serrano’s restitution fines on the basis of
Dueñas, which is no longer good law on that point. Defendants did not bring an
excessive fines challenge in the trial court. Consistent with Kopp, we remand to give
Bischoff and Serrano “the opportunity to assert the legal analyses applicable to such a
challenge and argue how the particular facts of this case inform such an inquiry.” (Kopp,
supra, 19 Cal.5th at p. 23.) In addition, the court may consider defendants’ inability to
pay as a statutory factor in deciding whether to impose a restitution fine above the
minimum $300. (Ibid.; § 1202.4, subds. (c), (d).) The court must impose the parole
revocation restitution fine in the same amount as the restitution fine. (Kopp, at p. 30;
§ 1202.45, subd. (a).)
V. Serrano’s custody credits
Serrano argues that the court erroneously calculated his presentence custody
credits. We remand for the court to reconsider his custody credits.
The probation report observed that Serrano was charged in this matter on July 26,
2022, and that sentencing was scheduled for June 7, 2024, so the report recommended
that the court award 683 days of custody credit. The report also observed that there were
28
“previous custody commitments that may not be related to this matter.” The court
awarded Serrano 683 days of custody credit.
In his opening brief, Serrano points out that the criminal complaint against him
was filed on May 4, 2018, and he appeared in court on August 31, 2018, when the court
recalled a bench warrant and denied bail. He contends that he was entitled to custody
credits from August 31, 2018, amounting to 2,108 days of credit.
The People respond that the record lacks clarity concerning the days of custody
attributable to this case. Under section 2900.5, “credit shall be given only where the
custody to be credited is attributable to proceedings related to the same conduct for which
the defendant has been convicted.” (§ 2900.5, subd. (b).) Section 2900.5 does “not
entitle a defendant to credit toward his sentence for a period of presentence custody
when, during that same period, he was serving a prison term for a prior unrelated
offense.” (People v. Cofer (2026) 20 Cal.5th 1, 11.) “[S]ection 2900.5 is intended to
provide equitable treatment for one held in pretrial custody on mere charges of crime,
not to give credit for time already being served and credited on another term or sentence
for unrelated violations.” (People v. Bruner (1995) 9 Cal.4th 1178, 1192.)
The People point out that Serrano appeared to be serving a prison term for an
unrelated offense during at least some part of the pretrial proceedings in this case. For
instance, the record shows that when he appeared for the proceedings on August 31,
2018, he was transported from and back to Folsom State Prison. He was also transported
from and back to Folsom State Prison for an appearance on December 20, 2019. And
29
according to the probation report, in October 2016, he was transported to Wasco State
Prison to serve a five-year term after he admitted a probation violation in an earlier case.
Because it is unclear how much of Serrano’s presentence custody is attributable
solely to this case, the People ask us to remand the matter for the trial court to reconsider
his custody credits. In his reply brief, Serrano states that he “has no objection to remand
for a thorough review of which dates of actual custody should be attributed to this case.”
We agree that the court should reconsider the issue on remand. And on remand, Serrano
bears the burden of showing that he is entitled to the claimed credits. (People v. Bruner,
supra, 9 Cal.4th at pp. 1180, 1193-1194.)
DISPOSITION
Serrano’s sentence on count 2 is vacated, and the matter is remanded for the court
to resentence him on that count without applying the three strikes law. In addition, the
court is directed to (1) remove count 2 from the abstract of judgment for Serrano’s
indeterminate terms and (2) prepare a separate abstract of judgment for the determinate
term on count 2.
The court’s orders waiving Bischoff’s and Serrano’s restitution fines and imposing
a parole revocation restitution fine are vacated. On remand, defendants may challenge
the restitution fine as excessive under the federal and state Constitutions, and the court
shall consider defendants’ inability to pay in deciding whether to impose a restitution fine
above the statutory minimum of $300. Once the court determines the amount of the
restitution fines, it shall impose a parole revocation restitution fine in the same amount.
30
The court is directed to reconsider the amount of Serrano’s presentence custody
credits consistent with this opinion. The court shall prepare amended abstracts of
judgment reflecting the foregoing changes and corrections and forward the amended
abstracts of judgment to the Department of Corrections and Rehabilitation. In all other
respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
McKINSTER
Acting P. J.
RAPHAEL
J.
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