Filed 1/5/21 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B304928
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA098545)
v.
DAVID JACOB SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark C. Kim, Judge. Affirmed.
Ava Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
After affirming appellant David Smith’s murder and
assault convictions, we remanded his case so the trial court could
exercise its discretion to retain or strike a firearm enhancement
under Penal Code section 12022.53, subdivision (h).1 At the
resentencing hearing, the trial court declined to strike the section
12022.53, subdivision (d) enhancement, leaving appellant’s
aggregate sentence of 40 years to life unchanged.
Appellant contends the trial court abused its discretion not
by failing to strike the enhancement, but by failing to consider
imposing instead a lesser enhancement under section 12022.53,
subdivisions (b) or (c). We agree with respondent Attorney
General that appellant forfeited this claim by failing to bring the
putative error to the trial court’s attention and affirm.
BACKGROUND
The facts and procedural history underlying appellant’s
convictions are set forth in our prior opinion, People v. Smith
(Jan. 8, 2019, B283278) [nonpub. opn.]. For purposes of this
appeal, it is sufficient to state that appellant was convicted of
second degree murder (§ 187) and assault with a firearm (§ 245,
subd. (a)(2)) after he and his brother engaged in an altercation
with two individuals on a public sidewalk. The parties
exchanged words and blows before appellant pulled a gun and
fatally shot victim Christopher Lane twice in the back and once
in the cheek. The jury rejected a gang enhancement (§ 186.22,
subd. (b)(1)(C)) but found true an allegation that appellant or a
principal personally and intentionally discharged a firearm,
causing great bodily injury or death (§ 12022.53, subds. (d) &
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
(e)).2 The trial court sentenced appellant to a total term of 40
years to life: 15 years to life for the murder, an additional
consecutive 25 years to life for the firearm enhancement, and a
concurrent three years for the assault.
We affirmed appellant’s convictions on appeal. We agreed
with the parties, however, that remand of the matter was
necessary to permit the trial court to exercise its discretion under
then-newly enacted section 12022.53, subdivision (h), which gave
trial courts the discretion to strike section 12022.53 enhancement
allegations. (See People v. Smith, supra.)
On remand, appellant filed a lengthy sentencing
memorandum urging the trial court to dismiss or strike the
section 12022.53, subdivision (d) enhancement. He argued that
“mitigating factors, including that the decedent and the witness
were the aggressors and/or provokers, the unusual circumstances
surrounding the shooting, Mr. Smith [sic] conduct being partially
excusable by the use of self-defense, his lack of a prior criminal
record, his background, character and prospects substantially
outweighed . . . any aggravating factors,”3 and the “relevant
objectives of sentencing” would be served by “dismissing and/or
striking the 12022.53 enhancements.” Appellant attached to his
memorandum a 10-page biography, as well as exhibits including
2The information also alleged firearm enhancements under
section 12022.53, subdivisions (b) and (c). Both parties represent
that the more severe section 12022.53, subdivision (d) allegation
was the only firearm enhancement allegation presented to the
jury.
3As we noted in our previous opinion, the jury “rejected
[appellant’s] theories of self-defense and defense of others.”
(People v. Smith, supra.)
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photographs, certificates, transcripts, and letters from family and
community members.
The prosecution filed an opposing memorandum. It argued
that appellant’s “background or social history” was not relevant
to the resentencing inquiry, and that aggravating circumstances
enumerated in the California Rules of Court warranted imposing
the enhancement.
The trial court heard the matter on February 18, 2020.
During his argument, and in remarks appellant made directly to
the court, appellant repeatedly asserted that the court should
strike the section 12022.53, subdivision (d) enhancement. On two
occasions, however, appellant suggested that the court had the
discretion to “impose a sentence of 10- 20-, or 25-to-life” by
invoking subdivisions (b) or (c) of section 12022.53 instead of
subdivision (d). The prosecutor briefly argued that the
circumstances of the case did not warrant “any type of leniency”
before submitting on her written opposition.
The court began its oral ruling by noting that the matter
had been remanded “for the sole exercise of discretion under
section 12022.53(h), . . .; that is, whether or not the court had
discretion to strike the 12022.53(d) allegation that a firearm was
used during the course of a homicide.” Therefore, it explained, it
was not going to revisit disputed factual issues the parties had
argued about, including “the issue of self-defense” and “whether
or not Mr. Lane had a gun.” The court said that it was going to
focus on “whether or not there are aggravating factors and
whether or not there are mitigating factors, and when you
balance it, whether or not the court should exercise it’s [sic]
discretion to strike the firearm allegation.”
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The court found there were “sufficient aggravating factor[s]
why the court should not strike the gun enhancement.” These
included the great violence involved in the crime, appellant’s use
of a firearm, and the victims’ vulnerability. The court stated that
the victims “were just walking on the sidewalk, just like any one
of us would do,” and “the male victim was especially vulnerable[,
because] he had turned his back when he was shot twice in the
back and once on his cheek.” The court remarked, “[t]hat does
not tell this court that he [the victim] was actually the
aggressor,” and added that it was not persuaded by appellant’s
assertion that he was provoked into shooting the victim. “Based
on those three grounds,” the court concluded it would “not
exercise its discretion to strike the gun allegation.” Neither
appellant nor the prosecutor objected, asked for any clarification
of the ruling, or made further argument regarding section
12022.53, subdivisions (b) and (c). The minute order
documenting the hearing states in relevant part, “Court exercises
its discretion in sentencing and previously imposed 25 years to
life as to enhancement 12022.53(d) of the Penal Code to stand.
Sentence of 40 years to life imposed on 6-12-2017 remains the
same.”
Appellant timely appealed.
DISCUSSION
Section 12022.53 contains three firearms enhancements of
increasing severity that may be charged in connection with
certain felonies. Section 12022.53, subdivision (b) provides for an
additional and consecutive term of ten years where a defendant
“personally uses a firearm” during the commission of a felony
enumerated in section 12022.53, subdivision (a). (§ 12022.53,
subd. (b).) Section 12022.53, subdivision (c) provides for an
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additional and consecutive term of 20 years where a defendant
“personally and intentionally discharges a firearm” during the
commission of a felony enumerated in section 12022.53,
subdivision (a). (§ 12022.53, subd. (c).) Section 12022.53,
subdivision (d), the most severe, provides for an additional and
consecutive term of 25 years to life where a defendant “personally
and intentionally discharges a firearm and proximately causes
great bodily injury, as defined in Section 12022.7, or death, to any
person other than an accomplice” during the commission of a
felony enumerated in section 246, subdivision (a), or section
26100, subdivisions (c) or (d). (§ 12022.53, subd. (d).)
Section 12022.53, subdivision (h) provides that the trial
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).) There is no dispute that subdivision (h) authorizes the
trial court to fully strike a firearm enhancement if justice so
requires, or to fully impose it. Appellant contends that
subdivision (h) gives the court discretion beyond this binary:
rather than make the stark choice between imposing an
enhancement of 25 years to life under subdivision (d) or no
enhancement at all, he contends the court is authorized to impose
one of the lesser enhancements under subdivision (b) or (c) and
must consider if doing so would be in the interests of justice.
Because the trial court failed to expressly consider imposing one
of the lesser enhancements here, he argues, it failed to appreciate
the full scope of and therefore abused its discretion. (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Failure to appreciate the scope of available discretion
constitutes an abuse of discretion. (People v. Gutierrez, supra, 58
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Cal.4th at p. 1391.) Whether the trial court here operated under
such a misapprehension is an open question, however. Currently
pending before the Supreme Court in People v. Tirado (2019) 38
Cal.App.5th 637, rev. granted Nov. 13, 2019 (S257658) (Tirado),
is the question whether the trial court can “impose an
enhancement under Penal Code section 12022.53, subdivision (b),
for personal use of a firearm, or under section 12022.53,
subdivision (c), for personal and intentional discharge of a
firearm, as part of its authority under section 1385 and
subdivision (h) to strike an enhancement under subdivision (d)
for personal and intentional discharge of a firearm resulting in
death or great bodily injury, even if the lesser enhancements
were not charged in the information or indictment and were not
submitted to the jury.”
The appellate court in Tirado held that the trial court did
not have the discretion to impose section 12022.53, subdivision
(b) or (c) enhancements because the only enhancement charged
and found true by the trier of fact was section 12022.53,
subdivision (d). (Tirado, supra, 38 Cal.App.5th at pp. 640, 644.)
Appellant acknowledges that “Tirado addressed the situation in
appellant’s case,” to the extent that his jury did not consider or
render findings regarding section 12022.53, subdivisions (b) or
(c). He maintains, however, that remand is necessary because
the trial court “said nothing about the lesser subdivision (c) or (b)
enhancements” despite his two references to them during
argument, and the court in People v. Morrison (2019) 34
Cal.App.5th 217 remanded in such a situation.
We agree with the Attorney General that the problem for
appellant is that he also said nothing about section 12022.53,
subdivision (b) or (c) when the trial court pronounced its ruling.
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“[C]omplaints about the manner in which the trial court exercises
its sentencing discretion and articulates its supporting reasons
cannot be raised for the first time on appeal.” (People v. Scott
(1994) 9 Cal.4th 331, 356; see also People v. Trujillo (2015) 60
Cal.4th 850, 856.) Appellant did not raise any complaints about
the trial court’s exercise of discretion below, and there is no
indication in the record that such an objection would have been
futile. The trial court overruled the prosecutor’s continuing
objections to appellant’s extensive presentation regarding his
personal background and permitted him to play a videotaped
statement from his mother, indicating a willingness to entertain
appellant’s theories and arguments.
Appellant contends he did not forfeit the issue because
“counsel twice argued the court could either strike the Penal
Code subdivision (d) enhancement or impose one of the lesser
firearm enhancements” during the resentencing hearing.4 We
are not persuaded. Appellant requested that the court “strike the
gun enhancement, either wholly or impose a 10- or 20-year
sentence under the triad that is given to the court” but did not
object or seek clarification when the court exercised its discretion
without addressing that aspect of his argument. “Had he timely
and specifically objected below, the trial court presumably would
have had an opportunity to correct, and could have corrected, any
4Appellant also asserts that he “extensively present[ed] the
defense position in [his] sentencing memorandum,” but did not
provide a page citation beyond a range covering the entire
memorandum and all of its exhibits. Our review of the
memorandum and exhibits located only arguments to “dismiss or
strike the 12022.53 enhancements” entirely, not to impose a
subdivision (b) or (c) enhancement in lieu of the subdivision (d)
enhancement.
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error” or oversight. (People v. Ortiz (2012) 208 Cal.App.4th 1354,
1372.) The “general rules concerning the presumption of
regularity of judicial exercises of discretion apply to sentencing
issues.” (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) In the
absence of a timely objection from appellant, we apply those rules
here.
DISPOSITION
Affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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