Filed 11/10/20 P. v. Moore CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076879
Plaintiff and Respondent,
v.
(Super. Ct. No. 16CR016503)
KALEEM RAY MOORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Lisa M. Rogan, Judge. Affirmed.
Jennifer Peabody, 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, Michael
Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and
Respondent.
This is the second appeal by defendant Kaleem Moore arising from his
conviction on three counts of robbery (Pen. Code, § 211),1 with attendant
firearm-use enhancements (§ 12022.53, subd. (b)), which resulted in his being
sentenced to 23 years eight months in prison (consisting of seven years for
the robbery counts, and 16 years eight months for the firearm
enhancements). In his prior appeal, we rejected Moore’s challenge to the
validity of a search warrant, and affirmed his convictions. (See People v.
Moore (Jan. 24, 2019, D074567 [nonpub. opn.] (Moore I).)2 However, because
the Legislature had since enacted Senate Bill No. 620, which amended
section 12022.53, subdivision (h) to grant trial courts the discretion to strike
or dismiss firearm enhancements when doing so furthers the interest of
justice, we remanded with direction that the trial court consider whether to
exercise its newly vested discretion.
This second appeal arises from the trial court’s decision on remand not
to strike or dismiss Moore’s firearm enhancements. Moore contends the trial
court abused its discretion by (1) failing to consider all relevant factors,
including Senate Bill No. 620’s underlying purpose; (2) basing its decision on
a mistaken recollection of the facts of the case; and (3) failing to consider
whether to substitute a lesser firearm enhancement (rather than merely
whether to dismiss the greater enhancements outright). For reasons we will
explain, we reject Moore’s contentions and affirm.
1 Further undesignated statutory references are to the Penal Code.
2 We grant Moore’s unopposed request to take judicial notice of our file in
Moore I, supra, D074567. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
2
FACTUAL AND PROCEDURAL BACKGROUND
Original Trial and Sentencing3
“Moore and [and codefendant Mark] Smith were charged with three
counts each of kidnapping to commit robbery (§ 209, subd. (b)(1)) and second
degree robbery (§ 211), with firearm personal-use enhancement allegations
(§ 12022.53, subd. (b)).[4]” (Moore I, supra, D074567, at p. 3, fn. omitted.)
Prosecution Evidence
“In the early morning hours of May 4, 2016, maintenance worker Ralph
D. was working the overnight shift at a Walmart store in Victorville. A
female employee told him two men were in the women’s restroom. Ralph
reported this information to two assistant managers (Ron R. and D.D.), who
investigated but did not find anyone. Ralph later saw two men in the middle
of the store dressed in black and wearing neon green safety vests. One of the
men was wearing black and white ‘Chuck Taylor’ Converse shoes, and the
other was wearing black ‘Jordan’ shoes. The men’s faces were not covered,
and Ralph identified Smith at trial as one of the two men. When Ralph asked
the men what they were doing there, they said they were cleaning the floors.
Ralph ‘immediately knew something was going on’ because that was his
responsibility that night. Ralph calmly left to alert Ron and D.D. to the
suspicious men’s presence.” (Moore I, supra, D074567, at pp. 3-4.)
3 We quote Moore I extensively in this section.
4 Section 12022.53, subdivision (b) provides: “Notwithstanding any other
provision of law, any person who, in the commission of a felony specified in
subdivision (a), [which includes robbery,] personally uses a firearm, shall be
punished by an additional and consecutive term of imprisonment in the state
prison for 10 years. The firearm need not be operable or loaded for this
enhancement to apply.”
3
“In the meantime, the assistant managers were standing in the front of
the store when the two suspects came around a corner toward them. The
suspects wore hoodies, leaving only a portion of their faces showing.
Nevertheless, at trial the managers identified Moore and Smith as the
suspects. When one of the managers asked the men to remove their hoods
and how he could help them, the suspects each pulled out a gun and said,
‘[t]his is how you can help us.’ The suspects told the managers to take them
to the ‘CO,’ or ‘cash office,’ and warned the managers not to ‘try anything
funny’ because ‘they know where it’s at.’ As the group walked toward the
cash office, the suspects saw maintenance worker Ralph and told him, ‘[g]et
over here, or I'm going to shoot your ass.’ Ralph complied, and the five men
then headed to the cash office, about 25 to 50 feet away.” (Moore I, supra,
D074567, at p. 4.)
“Assistant manager D.D. unlocked the door to the cash office, and the
suspects told the employees to get on the floor. Due to limited space in the
‘very tiny’ cash office, Ralph laid down on the floor, Ron ‘halfway laid down,’
and the suspects had D.D. remain standing. The suspects asked D.D. to open
the ‘war wagon’—a heavy, rolling, locked cart into which ‘money bags’ of cash
from the registers are deposited. The managers explained they did not have
the keys to the war wagon on their key chains. One of the suspects escorted
D.D. at gunpoint to another office about 400 feet away to retrieve the keys to
the war wagon. While D.D. and the first suspect were gone, the suspect in
the cash office spoke by walkie-talkie to the first suspect and to a third
suspect.” (Moore I, supra, D074567, at pp. 4-5.)
“D.D. returned with the keys, unlocked the war wagon, and helped
place the money bags into pillowcases the suspects provided. The other
suspect loaded up money bags that were already in the cash office. Once the
4
pillowcases were loaded, the suspects took the employees’ cellphones and said
they would leave them by the shopping carts at the store entrance. The
suspects handcuffed D.D. to the war wagon and left. The suspects took
approximately $80,000.” (Moore I, supra, D074567, at p. 5.)
“As the suspects left the cash office, D.D. kicked the door closed so it
would lock, then announced on his walkie-talkie for any employee listening to
call 911. Ron called 911 from a landline inside the cash office. After 20 or 30
seconds, D.D. left the cash office still shackled to the war wagon, and
observed a trail of money bags the suspects had dropped on their way out.
He put them in the war wagon.” (Moore I, supra, D074567, at p. 5.)
“Employee Justin A. was in his car in the parking lot on his lunch
break when he heard the call for help on the walkie-talkie. Justin
approached the store’s open front door, saw the suspects approaching, and
manually closed the sliding door. One of the suspects asked him, ‘Do you
want to get shot, homey?’ Justin responded, ‘Nope,’ backed away, and ran
back toward his car. Justin saw a gold Jeep with no license plates speed
toward the store. The two suspects got in the Jeep, and it sped away. Justin
called 911, and law enforcement arrived within minutes.” (Moore I, supra,
D074567, at p. 5.)
“Justin found the assistant managers inside the store and went to the
hardware section to retrieve bolt-cutters to free D.D. from the war wagon.
Justin then helped Ron look for his cellphone near the cart area, but they
could not find the phone. Using Justin’s cellphone, Ron tracked his own
phone with a GPS locator ‘app,’ which located the device several miles away.
Justin showed his phone to one of the responding sheriff’s deputies, who had
Justin accompany him in a sheriff's vehicle to locate the missing phone.”
(Moore I, supra, D074567, at pp. 5-6.)
5
“The locator app led Justin and the deputy to an apartment
complex . . . about three freeway exits away from the Walmart.” (Moore I,
supra, D074567, at p. 6.) After helping deputies search, “Justin saw a gold
Jeep with no license plates, which he recognized ‘[r]ight away’ as the
suspects’ getaway vehicle.” (Ibid.) Deputies observed indicia that the Jeep
had recently been driven and hastily parked. (Ibid.) They followed
distinctive Chuck Taylor Converse shoeprints to an apartment unit,
established a perimeter, and attempted to make contact with the occupants.
(Id. at pp. 6-7.) After about two hours, Moore, Smith, and a third occupant
exited the apartment. (Id. at p. 7.)
“After obtaining a search warrant . . . , law enforcement searched [the
apartment] and found the following evidence: one pair of Chuck Taylor
Converse shoes (size five and a half) and one pair of ‘Jordan Retro 11[]’ shoes;
two black handguns (one hidden in the tank of a toilet, the other in a safe);
one neon vest; one pair of red, black, and gray gloves matching those seen in
Walmart’s surveillance footage of the robbery; one pair of blue gloves; a
keychain with a Jeep Commander key on it; 25 money bags located between
the coffee table and couch; eight money bags containing coins; a bag full of
Walmart receipts; a large amount of currency stacked on the coffee table;
additional currency wrapped in a sheet partially hanging from an attic access
point; additional currency between the mattress and box spring of the bed in
the master bedroom; and a Walmart paystub addressed to Moore. Excluding
coins and checks, law enforcement recovered approximately $60,000 in
currency from the apartment.” (Moore I, supra, D074567, at pp. 7-8, fn.
omitted.)
6
“In addition to testimony from the Walmart and law enforcement
witnesses, the prosecution presented extensive video surveillance footage
from the Walmart store.” (Moore I, supra, D074567, at p. 8.)
Defense Evidence
“Neither Moore nor Smith testified or presented any other affirmative
evidence. In closing, Moore’s counsel essentially conceded the robbery counts,
but argued there was insufficient asportation to support the kidnapping
counts, which carry a life sentence. (§ 209, subd. (b)(1).) Smith argued in
closing that he had been misidentified by the victims.” (Moore I, supra,
D074567, at p. 8, fn. omitted.)
Verdicts and Sentencing
“The jury found Moore and Smith not guilty of the three kidnapping
counts, and guilty of the three robbery counts. The jury also found true the
firearm-use allegation attached to each robbery count.” (Moore I, supra,
D074567, at p. 8.)
“The trial court sentenced each defendant to 23 years eight months in
prison, consisting of the following consecutive terms: a five-year principal
term for the first robbery count (the aggravated term on a 2/3/5-year triad
under § 213, subd. (a)(2)); two 1-year subordinate terms for the remaining
robbery convictions (one-third of the three-year middle term); a 10-year term
on the firearm-use enhancement attached to the principal robbery count; and
two additional three-year four-month terms for the firearm-use
enhancements attached to the subordinate robbery counts (one-third of each
10-year enhancement).” (Moore I, supra, D074567, at pp. 8-9.)
Moore’s Previous Appeal
Moore appealed, raising two issues. First, he challenged the trial
court’s denial of his motion to quash the search warrant and to suppress the
7
resulting evidence. We affirmed the trial court’s order. (Moore I, supra,
D074567, at pp. 9-18, 30-31.)
Second, Moore requested that we remand for resentencing. When the
trial court sentenced Moore, section 12022.53, subdivision (h) prohibited the
court from striking the firearm enhancements. (§ 12022.53, former subd. (h)
["the court shall not strike an allegation under this section"], italics added.)
While his appeal was pending, however, the Legislature amended this
subdivision to provide that “[t]he court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.” (§ 12022.53,
subd. (h), italics added; see § 1385, subd. (a) [“The judge or magistrate may,
either of his or her own motion or upon the application of the prosecuting
attorney, and in furtherance of justice, order an action to be dismissed.”].)
We concluded this amendment applied retroactively to Moore’s nonfinal
judgment, vacated his sentence, and remanded for the trial court to exercise
its newly vested discretion to determine whether to strike the firearm
enhancements attached to each robbery conviction. (Moore I, supra,
D074567, at pp. 30-31.) “We express[ed] no opinion on how the trial court
should exercise its discretion in this regard.” (Id. at p. 30.)
Proceedings on Remand
On remand, Moore filed an informal request that the trial court dismiss
the firearm enhancements.5 The sole basis for the motion was Moore’s
assertion that “[s]ince he has been in custody, he has been an exemplary
5 Although the express language of section 1385, subdivision (a) does not
grant defendants the right to file a formal motion, it “is settled . . . that a
defendant may ‘informally suggest’ that the magistrate consider dismissal on
the magistrate’s own motion.” (People v. Konow (2004) 32 Cal.4th 995, 1022.)
We will refer to Moore’s request colloquially as a motion.
8
inmate.” He attached to his request several positive write-ups provided by
prison officials, and a list showing the classes he had taken while
incarcerated.
Moore attended the hearing on his motion, represented by a deputy
public defender who was filling in for his regular deputy public defender who
had filed the motion. The trial court stated it had “received and . . . read the
motion,” and invited further comment. Moore’s counsel stated she “would
submit on the motion,” unless the court required further argument, in which
case she would need to request a continuance so Moore’s usual counsel could
appear and argue. For his part, the prosecutor argued “there [was] not a
sufficient reason to strike the enhancements.”
The trial court denied Moore’s motion, explaining:
“All right. And the Court was the trial court for the trial.
“The facts in this case were extensive in the use, and
typically a use can be a wide variety of things when dealing
with a gun, but in this particular case, it was very highly-
sophisticated planning, and the use was extensive, and it
involved numerous victims who at varying degrees or times
during the incident, it was a long incident where a Wal-
Mart was taken over after hours.
“Mr. Moore had prior experience with Wal-Mart due to his
employment. They knew the layout.
“Mr. Moore actually at one point cocked the handgun and
put it at the head of one of the victims.
“One of the victims was handcuffed to what they called ‘a
war wagon,’ which was a cash cart.
“They were locked in a small room.
“All of the victims’ phones were taken from them.
“The gun use was extensive.
9
“At this time the Court, in recalling all of those factors in
the planning, the sophistication, the victims being at a very
vulnerable point, being that they are taken to a small room,
their phones were taken away from them, their guns were
pointed at them, they were told they would be shot if they
looked at the defendants during this time, the Court is not
going to strike the use.
“If this were something as simple as they just brandished
without any of those aggravating factors, it would be a case
more likely that the Court would exercise some discretion
in striking, but because of the fact pattern that was
involved here, I am not going to strike that.
“So the sentencing as previously imposed by the Court will
remain as stands.”
The prosecutor and deputy public defender each thanked the court, and
the hearing ended.
DISCUSSION
Moore contends the trial court abused its discretion by denying his
motion to dismiss the firearm-use enhancements. Specifically, he contends
the court erred by (1) failing to consider all relevant factors, including Senate
Bill No. 620’s underlying purpose; (2) basing its decision on a mistaken
recollection of the facts of the case; and (3) failing to consider whether to
substitute a lesser firearm enhancement (rather than merely whether to
dismiss the greater enhancements outright).
Moore did not raise any of these challenges in the trial court, which
would ordinarily forfeit them on appeal. (See People v. Gonzalez (2003) 31
Cal.4th 745, 751 (Gonzalez) [“A party in a criminal case may not, on appeal,
raise ‘claims involving the trial court’s failure to properly make or articulate
its discretionary sentencing choices’ if the party did not object to the sentence
at trial.”], quoting People v. Scott (1994) 9 Cal.4th 331, 353.) However, under
the particular circumstances of this case, which included a very brief hearing
10
at which Moore was represented by substitute counsel who conveyed her
unfamiliarity with the case and potential need for a continuance, we decline
to declare a forfeiture as to Moore’s claims regarding the trial court’s
consideration of relevant factors and factual recollection. But because
Moore’s claim regarding substitution of a lesser firearm enhancement
presents a legal question that his regular public defender could have raised
when he filed the motion on Moore’s behalf, we explain in part IV, post, why
we find this challenge forfeited.
I. Legal Principles
Under section 12022.53, subdivision (b), a defendant who personally
uses a firearm during the commission of certain specified felonies—including
robbery (§ 12022.53, subd. (a)(4))—“shall be punished by an additional and
consecutive term of imprisonment in the state prison for 10 years.”
(§ 12022.53, subd. (b).)6 Senate Bill No. 620 amended 12022.53, subdivision
(h), effective January 1, 2018, to grant trial courts the discretion “in the
interest of justice pursuant to Section 1385 and at the time of sentencing, [to]
strike or dismiss an enhancement otherwise required to be imposed by this
section.” (§ 12022.53, subd. (h); Stats. 2017, ch. 682, § 1.)
“The factors that the trial court must consider when determining
whether to strike a firearm enhancement under section 12022.53, subdivision
(h) are the same factors the trial court must consider when handing down a
6 Section 12022.53 provides a three-tiered enhancement based on the
nature of the defendant’s firearm use during the commission of an
enumerated offense: subdivision (b) provides for a 10-year enhancement for
personally using a firearm; subdivision (c) provides for a 20-year
enhancement for personally discharging a firearm; and subdivision (d)
provides for a 25 to life enhancement for personally discharging a firearm
causing great bodily injury or death.
11
sentence in the first instance.” (People v. Pearson (2019) 38 Cal.App.5th 112,
117 (Pearson).) These include the general objectives in sentencing (Cal. Rules
of Court, rule 4.410),7 circumstances in aggravation (rule 4.421), and
circumstances in mitigation (rule 4.423). (See Pearson, at p. 117.) “ ‘[U]nless
the record affirmatively reflects otherwise,’ the trial court is deemed to have
considered the factors enumerated in the California Rules of Court.” (Ibid.,
quoting rule 4.409.) The fact that a court expressly discusses certain factors
does not affirmatively reflect that it failed to consider others. (See People v.
Myers (1999) 69 Cal.App.4th 305, 310 (Myers) [“the fact that the court focused
its explanatory comments on the violence and potential violence of appellant’s
crimes does not mean that it considered only that factor”].)
“ ‘[A] court's discretionary decision to dismiss or to strike a sentencing
allegation under section 1385 is’ reviewable for abuse of discretion.” (People
v. Carmony (2004) 33 Cal.4th 367, 373; see Pearson, supra, 38 Cal.App.5th at
p. 116.) The burden is on the party attacking the sentence “ ‘ “to clearly show
that the sentencing decision was irrational or arbitrary.” ’ ” (Carmony, at
p. 376.)
II. Consideration of All Relevant Factors
Moore contends the trial court abused its discretion by failing to
consider all relevant factors, such as (1) the “underlying purpose” of Senate
Bill No. 620, (2) Moore’s individual characteristics (e.g., his age, minimal
criminal record, and conduct in prison), and (3) the fact the court cited certain
of the same aggravating factors in denying Moore’s motion as it had relied on
in imposing the upper term and running sentences consecutively. This
7 All further rule references are to the California Rules of Court.
12
challenge fails because the trial court’s stated rationale affirmatively reflects
that the court expressly considered various applicable sentencing factors.
Specifically, in addition to aggravating circumstances directly arising
from Moore’s extensive firearm use, the court cited the following aggravating
circumstances: (1) the crime reflected “very highly-sophisticated planning”
(see rule 4.421(a)(8) [“[t]he manner in which the crime was carried out
indicates planning, sophistication, or professionalism”]); (2) “the victims
[were] at a very vulnerable point, being that they are taken to a small room,
their phones were taken away from them, . . . guns were pointed at them,
[and] they were told they would be shot if they looked at the defendants
during this time” (see rule 4.421(a)(3) [“[t]he victim was particularly
vulnerable”]); and (3) “Moore had prior experience with Wal-Mart due to his
employment” (see rule 4.421(a)(11) [“[t]he defendant took advantage of a
position of trust or confidence to commit the offense”]). Additionally, at the
original sentencing hearing, the trial court also found that the theft of
$60,000 implicated the aggravating circumstance that the “crime involved
an . . . actual taking . . . of great monetary value.” (Rule 4.421(a)(8).)
Moore infers from the fact that the trial court expressly mentioned only
aggravating circumstances that the court must not have considered any
mitigating circumstances. The law precludes the drawing of such an
inference, however, unless the record affirmatively reflects the court failed to
consider mitigating circumstances. (See rule 4.409; Pearson, supra, 38
Cal.App.5th at p.117; Myers, supra, 69 Cal.App.4th at p. 310.) The record
here does not.
To support his claim that the record affirmatively shows the trial court
failed to consider the underlying ameliorative purpose of Senate Bill No. 620,
Moore cites the court’s suggestion that it would have been more inclined to
13
strike the enhancements “[i]f this were something as simple as they just
brandished without any of those aggravating factors.” Moore claims this
shows the trial court mistakenly construed Senate Bill No. 620 as authorizing
the court to strike firearm enhancements only in cases involving “simple
brandish[ing].” To the contrary, by acknowledging that firearm use “can be a
wide variety of things,” the trial court’s reference to simple brandishing
clearly was intended to demarcate the lower end of the firearm-use
continuum. By then articulating the numerous aggravating circumstances
the court found applicable, the court conveyed its view that Moore’s firearm
use fell at the upper end of the use continuum.8 In this context, the court’s
reference to simple brandishing did not reflect a misunderstanding that the
court lacked the authority to dismiss the enhancements; it reflected the
court’s judgment that it would be inappropriate to do so in this case.
Moreover, although Moore emphasizes that Senate Bill No. 620 is part
of a trend “against draconian sentencing measures in the state of California,”
his brief’s “eloquent and elegant argument about trends in felony
sentencing . . . ignores the context in which sentencing decisions like the one
at issue here will typically be made. The factors that the trial court must
consider when determining whether to strike a firearm enhancement under
section 12022.53, subdivision (h) are the same factors the trial court must
consider when handing down a sentence in the first instance.” (Pearson,
supra, 38 Cal.App.5th at p. 117.)
As to consideration of his individual characteristics (e.g., his age,
relatively minor criminal record, and conduct in prison), Moore argues that
because the trial court did not expressly discuss them, the record therefore
8 The firearm-use continuum is bounded at the upper end by the 20-year
enhancement for discharging a firearm. (§ 12022.53, subd. (c).)
14
reflects that the court did not consider them. The law presumes the contrary.
(See rule 4.409; rule 4.423 [setting forth mitigating circumstances “relating to
the defendant”]; Pearson, supra, 38 Cal.App.5th at p. 117; Myers, supra, 69
Cal.App.4th at p. 310.) Moreover, by stating that it had received and
reviewed Moore’s motion, which was based solely on his conduct in prison,
the trial court implicitly indicated it had considered at least this
individualized characteristic.
Regarding aggravating circumstances, Moore does not contend the trial
court failed to articulate a sufficient number of them to support each of its
discretionary sentencing decisions. Rather, he contends that in denying his
motion to strike the firearm enhancements based on certain aggravating
factors, the court “failed to take into consideration the manner in which it
already considered” the same aggravating factors “at the original sentencing
hearing to impose both the aggravated term and consecutive terms.” We will
not presume the court was unfamiliar with its earlier actions. (See People v.
Connolly (1951) 103 Cal.App.2d 245, 248 [“This court will not presume that
the trial court was not familiar with the record when passing on defendant's
application for probation.”]; Pearson, supra, 38 Cal.App.5th at p. 117 [unless
the record affirmatively reflects otherwise, we presume the court considered
all relevant factors].)
In sum, Moore has not shown that the trial court failed to consider all
relevant factors.
III. Mistaken Recollections of Fact
Moore also contends the trial court abused its discretion because its
ruling was based on two mistaken recollections of fact—that Moore (rather
than Smith) “cocked [a] handgun and put it at the head of one of the victims,”
and by characterizing the robbery as “a long incident.” We disagree.
15
While not seriously disputing that the trial court was mistaken about
which codefendant cocked his gun, the Attorney General maintains the trial
court was nonetheless correct that Moore’s overall firearm use was
“extensive.” We agree. Indeed, even Moore himself acknowledges “there is
no dispute that both [he] and Smith were armed with firearms and pointed
the guns at the victims . . . .” Thus, even if the trial court was mistaken
about one instance of Moore’s firearm use, the overall proposition on which
the trial court based its ruling was admittedly correct. Moreover, the trial
court cited numerous additional aggravating circumstances apart from
Moore’s firearm use. (See Discussion part II, ante.)
Moore fares no better with his contention that the trial court
erroneously recalled that the robbery “was a long incident.” As Moore
admits, he and Smith were in the store for a total of nearly four hours (from
about 11 p.m. to about 2:45 a.m.). That certainly qualifies as a long incident.
Even if we were to construe the “incident” as referring only to the
approximately nine-minute portion during which the actual robbery occurred,
we cannot say the trial court was mistaken. Indeed, the trial court’s
recounting of the events that transpired during those nine minutes—
extensive firearm use, moving multiple victims to different locations in the
store, locking them in a small room, shackling one of them to the cash cart,
taking their phones, and threatening another employee while fleeing the
store—provides context against which to evaluate the court’s comment. So
framed, the trial court did not abuse its discretion by basing its ruling on the
belief that the robbery “was a long incident.”
IV. Substituting a Lesser Enhancement
Moore argues that even if we conclude (as we have) that the trial court
did not abuse its discretion in declining to dismiss the firearm enhancements,
16
we must nonetheless remand for resentencing because the trial court “was
unaware of its discretion to reduce the section 12022.53, subdivision (b) [10-
year] enhancement to the lesser included [three-, four-, or 10-year]
enhancement set forth in section 12022.5.”9 (Italics added.) The Courts of
Appeal disagree about whether trial courts have such discretion, and the
issue is pending in the Supreme Court. (See, e.g., People v. Morrison (2019)
34 Cal.App.5th 217, 223 (Morrison) [courts have discretion to substitute
lesser enhancements]; People v. Tirado (2019) 38 Cal.App.5th 637, 643-644
[courts lack the discretion to substitute lesser enhancements], review granted
November 13, 2019, S257658.) We do not reach the merits of Moore’s
challenge because we conclude he forfeited it by failing to first raise it in the
trial court. (Gonzalez, supra, 31 Cal.4th at p. 751; see People v. Yanez (2020)
44 Cal.App.5th 452, 460 [applying the forfeiture doctrine to the same claim at
issue here], review granted Apr. 22, 2020, S260819 (Yanez).)
Moore filed his motion in October 2018. By then, Senate Bill No. 620
had been in effect for 10 months, and the Morrison decision—on which Moore
bases his appellate challenge—had been published for six months. Yet,
Moore requested only that the trial court dismiss his firearm enhancements;
he did not request that the trial court reduce them. By failing to first seek in
the trial court relief he now claims was authorized by then-existing authority
(the validity of which claim we do not address here), Moore has forfeited his
9 Section 12022.5, subdivision (a) provides: “Except as provided in
subdivision (b) [pertaining to assault weapons and machineguns], any person
who personally uses a firearm in the commission of a felony or attempted
felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm
is an element of that offense.” Section 12022.5 applies to any felony, whereas
section 12022.53 applies only to certain enumerated felonies.
17
ability to seek that relief on appeal. (See Yanez, supra, 44 Cal.App.5th at
p. 460, review granted.) Forfeiture is all the more appropriate here in light of
the Morrison court’s admonition that publication of its decision essentially
put defendants on notice of the need to affirmatively raise the issue in the
trial court. (Morrison, supra, 34 Cal.App.5th at p. 225 [“after the publication
of our decision today, the usual presumption that a sentencing court correctly
applied the law will apply and will ordinarily prevent remand where the
record is silent as to the scope of a court’s discretion”].)
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
18