Filed 11/24/20 P. v. Jackson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301431
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA068581)
v.
AMOS JACKSON et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael V. Jesic, Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of
Appeal, for Defendant and Appellant Amos Jackson.
John L. Staley, under appointment by the Court of
Appeal, for Defendant and Appellant Charles Spencer.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Apttorney General, Zee Rodriguez and
Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff
and Respondent.
_____________________________________
INTRODUCTION
In 2013, a jury convicted appellants Amos Jackson and
Charles Spencer of six counts of robbery, one count of grossly
negligent discharge of a firearm, and one count of being a
felon in possession of a firearm. The court sentenced each
appellant to a total of 245 years to life, including six 10-year
sentence enhancements for using a firearm during the
commission of the crimes. In September 2019, pursuant to
our direction in People v. Jackson (Dec. 14, 2016, B259915)
2016 Cal.App.Unpub. LEXIS 8996 (Jackson I), the trial court
resentenced appellants on the count for grossly negligent
discharge of a firearm. During the resentencing there was
no discussion whether to strike the firearm enhancements
previously imposed.1 The only issue in this appeal is
whether we should again remand, this time to permit the
1 At the time of appellants’ 2014 sentencing, imposition of
the firearms enhancements was mandatory. Effective January 1,
2018, Penal Code section 12022.5, subdivision (c), gave the trial
court discretion to strike the firearm enhancements in the
interest of justice. (People v. Humphrey (2020) 44 Cal.App.5th
371, 377-378.) At the time of appellants’ resentencing, the
provision had been in effect for 20 months.
2
trial court to exercise its discretion to strike those firearm
enhancements.
Appellants argue remand is required because the
record does not clearly show the court would not have struck
the sentence enhancements. In response to the People’s
contention that he forfeited this argument due to his failure
to ask the court to strike the enhancements (or object to the
court’s failure to do so sua sponte), appellant Jackson argues
the trial court lacked the power to strike the enhancements
on resentencing, and therefore his failure to request such
action does not constitute forfeiture. Both appellants also
urge us to address their appeal on the merits “to forestall a
claim of ineffective assistance of counsel.”
We find appellants forfeited their argument by failing
to object at the resentencing. Moreover, the trial court is
presumed to know the law, and appellants have failed the
show the court was unaware of its sentencing discretion. We
affirm.
STATEMENT OF RELEVANT FACTS
In 2013, a jury convicted appellants of six counts of
robbery, one count of grossly negligent discharge of a
firearm, and one count of being a felon in possession of a
firearm. In 2014, the court sentenced each appellant to a
total of 245 years to life, which sentence included six 10-year
enhancements under Penal Code section 12022.53,
subdivision (b), for use of a handgun during the commission
of these crimes.
3
Following appeal, this court remanded to the trial
court to correct errors in the abstracts of judgment, and for
resentencing on the conviction for grossly negligent
discharge of a firearm. (Jackson I, supra, 2016
Cal.App.Unpub. LEXIS at *50-*51.) On September 5, 2019,
the trial court resentenced appellants as we directed.2
During resentencing the trial court said nothing about
striking the firearm enhancements, and appellants neither
asked the court to strike the enhancements, nor voiced any
objection to its failure to do so. Appellants filed a timely
appeal from the resentencing.
DISCUSSION
A. Appellants Forfeited Their Argument
“‘[T]he right to challenge a criminal sentence on appeal
is not unrestricted. In order to encourage prompt detection
and correction of error, and to reduce the number of
unnecessary appellate claims, reviewing courts have
required parties to raise certain issues at the time of
sentencing. In such cases, lack of a timely and meaningful
objection forfeits or waives the claim.’” (People v. Cardenas
(2020) 53 Cal.App.5th 102, 125.) Our Supreme Court has
held that “the waiver doctrine should apply to claims
involving the trial court’s failure to properly make or
2 The delay in resentencing apparently resulted from the
failure of the Department of Corrections to receive a copy of the
remittitur issued in March 2017.
4
articulate its discretionary sentencing choices.” (People v.
Scott (1994) 9 Cal.4th 331, 353.)
It is undisputed that when the trial court resentenced
appellants, they neither asked the court to strike the firearm
enhancements, nor objected to its failure to do so. Appellant
Jackson argues we should nevertheless find he did not forfeit
this argument on appeal because the trial court lacked the
authority to strike the enhancements during resentencing.3
Both appellants additionally urge us to address their appeal
on the merits “to forestall a claim of ineffective assistance of
counsel.”
In 2016, we vacated the trial court’s sentence on the
count for grossly negligent discharge of a firearm, and
remanded the case for resentencing on that count. (Jackson
I, supra, 2016 Cal.App.Unpub. LEXIS at *51.) “[W]hen part
of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances.’” (People v.
Buycks (2018) 5 Cal.5th 857, 893 (Buycks).) Thus, the court
had discretion to strike the firearm enhancements during
resentencing, and appellants’ lack of objection or request to
strike resulted in forfeiture.
3 This is contrary to the acknowledgment in Jackson’s
opening brief that “[t]he trial court had the discretion to consider
whether to strike the firearm enhancements pursuant to the full
resentencing rule.” Spencer’s opening brief also acknowledged
the full resentencing rule.
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B. Remand Is Not Required
Citing People v. Almanza (2018) 24 Cal.App.5th 1104,
1110, appellants contend “[r]emand is required unless the
record reveals a clear indication that the trial court would
not have reduced the sentence even if at the time of
sentencing it had the discretion to do so.” (Ibid.) Appellants
misread Almanza. There, the sentencing court lacked
discretion to strike the firearm enhancements -- it was not
until after the appeal was filed that the law granting the
trial court such discretion became effective. (Id. at 1106,
1109.) Almanza thus addressed the situation in which a
court, through subsequent retroactive legislation, was
granted discretion it did not have at the time of sentencing.
(See also People v. McDaniels (2018) 22 Cal.App.5th 420, 424
[“At the time it sentenced [the defendant], the trial court had
no discretion to strike the three firearm enhancements
imposed under section 12022.53”].) Here, as Spencer
concedes and Jackson correctly conceded in his opening brief,
the court had discretion to strike the firearm enhancements
when it resentenced them in September 2019. (Buycks,
supra, 5 Cal.5th at 893.)
Nothing in the record indicates the court was unaware
of its discretion. At the time of resentencing, the provision
granting the court discretion to strike the firearm
enhancements had been in effect for over a year and a half.
“[I]n light of the presumption on a silent record that the trial
court is aware of the applicable law, including statutory
discretion at sentencing, we cannot presume error where the
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record does not establish on its face that the trial court
misunderstood the scope of that discretion.” (People v.
Gutierrez (2009) 174 Cal.App.4th 515, 527; see also People v.
Thomas (2011) 52 Cal.4th 336, 361 [“[i]n the absence of
evidence to the contrary, we presume that the court ‘knows
and applies the correct statutory and case law’”].) “When
‘the record shows that the trial court proceeded with
sentencing on the erroneous assumption it lacked discretion,
remand is necessary so that the trial court may have the
opportunity to exercise its sentencing discretion at a new
sentencing hearing.’ . . . If the record is silent, however, the
defendant has failed to sustain his burden of proving error,
and we affirm.” (People v. Lee (2017) 16 Cal.App.5th 861,
866-867.) Here, the record is silent. Appellants have failed
to sustain their burden of proving error.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
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People v. Jackson CA2/4
Combined Opinion