Filed 9/28/20 P. v. Jackson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076497
Plaintiff and Respondent,
v. (Super. Ct. No. SCD218179)
JEOVANI JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Runston G. Maino, Judge. Affirmed and remanded with directions.
Gary V. Crooks, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant Jeovani Jackson pled guilty in 2009 and was sentenced to a
term of 20 years. In 2019 his sentence was returned to the court for review
pursuant to Penal Code1 section 1170, subdivision (d). The court reduced
defendant’s sentence to 18 years. Defendant contends this sentence is
incorrect, the court abused its discretion in failing to strike a firearm
enhancement and in failing to adequately consider defendant’s age and
mental health status when resentencing him. We affirm the judgment, as we
explain.
I.
BACKGROUND
Factual Background
Defendant has stipulated that the preliminary hearing transcript
provides the factual basis for his plea. The transcript is not part of the record
on appeal. For purposes of this appeal, it is sufficient to note that on
January 12, 2009, defendant committed an assault with a firearm on victim
J.R. Defendant also personally used a gun, inflicted great bodily injury on
J.R., and committed the crime for the benefit of a street gang.
Procedural Background
On May 8, 2009, an information was filed in the Superior Court for
San Diego County. In count 1, it was alleged defendant committed
attempted, willful, deliberate and premeditated murder in violation of
sections 664, 187, subdivision (a), and 189, along with allegations of
personally discharging a gun, causing great bodily injury (§ 12022.53, subd.
(d)), personal use of a firearm (§ 12022.5, subd. (a)), personal infliction of
great bodily injury (§ 12022.7, subd. (a)), and commission of a felony offense
for the benefit of a street gang (§ 186.22, subd. (b)(1)). As to count 2, it was
alleged defendant committed an assault with a firearm, in violation of section
245, subdivision (a)(2), with allegations of personal use of a firearm in
1 Further statutory references are to the Penal Code.
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violation of section 12022.5, subdivision (a), personal infliction of great bodily
injury in violation of section 12022.7, subdivision (a), and commission of a
felony for the benefit of a gang in violation of section 186.22, subdivision
(b)(1).
On July 7, 2009, pursuant to a negotiated plea, defendant entered a
plea of guilty to count 2, assault with a firearm, and admitted the allegations
of personal use of a firearm, personal infliction of great bodily injury, and
commission of a felony for the benefit of a street gang. The balance of the
charges were dismissed. Defendant stipulated to a sentence range between
17 and 22 years.
On December 22, 2009, following defendant’s unsuccessful motion to
withdraw his guilty plea, the trial court sentenced him to an aggregate prison
term of 20 years. The court imposed the upper term of four years on the
assault with a firearm, along with three years on the great bodily injury
enhancement, three years on the gun enhancement, and 10 years on the gang
enhancement, all consecutive.
On September 4, 2018, the Office of the Secretary of the California
Department of Corrections and Rehabilitation (CDCR) sent a letter to the
trial judge, advising him that defendant’s sentence should be recalled
pursuant to section 1170, subdivision (d), explaining the court should not
have imposed sentence enhancements under both section 12022.7 subdivision
(a) and 186.22, subdivision (b)(1)(C). The 10-year penalty for the gang
enhancement applies when the underlying crime is a violent felony.
(§ 186.22, subd. (b)(1)(C).) Defendant’s assault with a firearm is a violent
felony only if the defendant inflicted great bodily injury (§ 12022.7) or used a
firearm (§ 12022.5). (See § 667.5, subd. (c)(8) [violent felony].)
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As a result of the letter, the trial court held a resentencing hearing on
September 5, 2019. Defendant requested that the court exercise its new
discretion to strike the firearm enhancement, and that it reduce the total
sentence. The People agreed the three-year term under section 12022.7 must
be stayed, and the trial court could use its discretion to strike the gun
enhancement. The court sentenced defendant to 18 years in prison,
consisting of the upper term of four years on the assault with a firearm
charge, with the midterm of four years consecutive pursuant to section
12022.5 for the gun enhancement, and 10 years consecutive for the gang
enhancement pursuant to section 186.22, subdivision (b)(1)(C). The court
restated defendant’s original credit for time served (345 days actual and 51
days conduct credit).
A timely notice of appeal was filed.
II.
ANALYSIS
A. Sentencing for the Gang and Firearm Use Enhancements Was Appropriate
Defendant first argues the trial court erred by imposing both the
personal firearm use enhancement of section 12022.5, subdivision (a), and an
enhancement for committing a violent felony to benefit a criminal street
gang, pursuant to section 186.22, subdivision (b)(1)(C). We conclude there is
no error.
As defendant acknowledges, People v. Vega (2013) 214 Cal.App.4th
1387 (Vega) holds a trial court may sentence a defendant for both the firearm
enhancement and the gang enhancement. (Id. at pp. 1393–1395.) The
assault was a violent felony for two reasons: the use allegation and great
bodily injury allegation were both found true. (§ 667.5, subd. (c)(8).) Where
it was found true that the defendant both personally used a firearm and
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personally inflicted great bodily injury, the court can impose one of those
enhancements and the gang enhancement for a violent felony. (Vega, at
p. 1395.)
Defendant relies upon People v. Ahmed (2011) 53 Cal.4th 156, 164
(Ahmed) and People v. Rodriguez (2009) 47 Cal.4th 501, 508–509 (Rodriguez)
for the proposition it is not appropriate to sentence for both firearm
enhancements. However, Rodriguez does not involve great bodily injury and
Ahmed does not involve the gang enhancement. As Vega states, where the
defendant was convicted of a violent felony and the jury found the great
bodily injury allegation true, “nothing in section 1170.1, subdivision (f) or
Rodriguez prevented the trial court from imposing both the firearm use and
gang enhancements.” (Vega, supra, 214 Cal.App.4th at p. 1395.) Nor does
Ahmed assist defendant. Ahmed holds that section 1170.1 does not prohibit
imposition of separate enhancements where the defendant is found to have
inflicted great bodily injury in addition to using a firearm. (Ahmed, at
p. 164.)
Existing authority supports the imposition of the gang enhancement
and firearm use enhancement.
B. The Record Reflects the Trial Court Made a Discretionary Choice Not to
Strike the Firearm Enhancement
At the time of defendant’s original sentence, trial courts had no
authority to strike a firearm enhancement proved under sections 12022.5 and
12022.53. (See former §§12022.5, subd. (c), eff. 1/1/2005-9/30/2011; 12022.53,
subd. (h), eff. 1/1/2007-12/31/2011.) Effective January 1, 2018, Senate Bill
No. 620 (Sen. Bill 620) removed that prohibition and added the following
language to both sections 12022.5 and 12022.53: “The court may, in the
interest of justice pursuant to Section 1385 and at the time of sentencing,
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strike or dismiss an enhancement otherwise imposed by this section. The
authority provided by this subdivision applies to any resentencing that may
occur pursuant to any other law.”
The prosecutor conceded that the discretionary sentencing changes
brought by Sen. Bill 620 were applicable and that the court could reconsider
imposition of the firearm enhancement. She told the court at the hearing
that it had discretion pursuant to Sen. Bill 620 to strike the firearm
enhancement. She reminded the court that when the defendant saw the
victim walking down the street, the defendant said, “I’ll kill you,” or “I could
kill you right now,” aimed his gun and shot the victim in the neck. Defendant
also had multiple disciplinary writeups for acts of violence in prison. The
probation report stated that the victim was shot four times: twice in his
neck, once in his torso, and once in his left leg.
The record reflects the trial court took into consideration defendant’s
age, circumstances of the crime, disciplinary history in prison, and all
evidence presented by the parties, and exercised its discretion by declining to
strike the firearm enhancement. The court addressed defendant and stated
it could not see “anything less than 18 years on this case. I’ve considered the
offense. There were four shots, I believe, fired. I’ve considered your entire
record, and I’ve looked at everything, good and bad, since you’ve been
incarcerated. And I think the only proper sentence here is on the 245, the
upper term. 12022.5, the midterm of four years, the 12022.7, the statutory
term of three years imposed but stayed, and then the gang allegation term
which is the 186.22(b)(1)(c) of ten years, total of 18 years.”
We conclude that the court was aware of its discretion and reasonably
exercised it in deciding not to strike the firearm enhancement.
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C. The Court Considered Defendant’s Age in Setting the Sentence at 18 Years
The court considered defendant’s age—18—and mental health status at
the time of the crime before reviewing defendant’s sentence. Defendant
contends, however, that the court did not provide the “individualized
discretion” that is required when sentencing a person who committed a crime
as a juvenile. (People v. Franklin (2016) 63 Cal.4th 261, 275; see also Miller
v. Alabama (2012) 567 U.S. 460, 471–474.)
The court did not abuse its discretion. (People v. Sandoval (2007) 41
Cal.4th 825, 847 [courts have wide discretion in sentencing decisions].) The
defendant, though young, was not a juvenile and the sentence was for a term
of less than 20 years, not a life sentence or its functional equivalent. The
court considered defendant’s youth and mental health status, and weighed
them against the severity of the crime and defendant’s abysmal discipline
record while in prison. Its decision was well within the bounds of reason.
(Ibid.)
D. Certificate of Probable Cause
The California Supreme Court has concluded defendant is not required
to obtain a certificate of probable cause to ask a court of appeal to remand a
case to allow the trial court to consider its discretion to strike an
enhancement. (People v. Stamps (2020) 9 Cal. 5th 685, 696.) Given our
analysis, we do not consider it necessary to decide the hypothetical scenarios
offered by the People with respect to the possibility of remand.
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E. Custody Credits
Although not raised by either party, the court erred in restating the
original custody credits from 2009. When the court resentences pursuant to
section 1170, it is required to modify the judgment to reflect defendant’s
actual custody credits as of the date of the resentencing. (People v.
Buckhalter (2001) 26 Cal.4th 20, 23, 40–41; § 2900.1.) We remand the case
with directions to recalculate custody credits on remand.
DISPOSITION
We remand the case to the trial court to correct the custody credits and
to forward an amended abstract of judgment to CDCR. The judgment is
affirmed in all other respects.
BENKE, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
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