Filed 3/26/21 P. v. Carreles CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077989
Plaintiff and Respondent,
(Super. Ct. No. PCF339731A)
v.
RUBEN JESSE CARRELES, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Antonio A.
Reyes, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C.
Leal, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
During a traffic stop, defendant Ruben Jesse Carreles ran from the vehicle and
then fired a shot at the pursuing police officer, striking him. Defendant was convicted by
jury of the attempted premeditated murder of a peace officer (Pen. Code, §§ 664/187,
subd. (a), 189, subd. (a); count 1),1 assault with a firearm on a peace officer (§ 245,
subd. (d)(1); count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3),
and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 4). In addition to
its findings that the attempted murder was willful, deliberate, and premeditated and
committed on a peace officer (§ 664, subds. (a), (e)), the jury found true the firearm
enhancement allegations attached to the attempted murder and assault counts
(§ 12022.53, subds. (b)–(d)). In a bifurcated proceeding, the trial court found that
defendant served a prior prison term (§ 667.5, former subd. (b)).2
The trial court sentenced defendant to 15 years to life for attempted murder and
imposed additional consecutive terms of 25 years to life for the firearm enhancement
under section 12022.53, subdivision (d), and one year for the prior prison term
enhancement pursuant to section 667.5, former subdivision (b), for a total term of
41 years to life.3 Sentences on counts 2 through 4 were imposed and stayed under
section 654.4 In addition, the trial court imposed the maximum restitution fine of
1 All further statutory references are to the Penal Code unless otherwise stated.
2 As addressed in part IV. of the Discussion, section 667.5, subdivision (b), was amended
effective January 1, 2020, to limit the convictions upon which a prior prison term enhancement
may be based. (Stats. 2019, ch. 590, § 1, pp. 1–4 (Senate Bill No. 136).)
3 Defendant was also sentenced in Tulare Superior Court case No. PCF278405 following
the trial court’s finding that he violated his probation. We do not summarize those proceedings,
which are not relevant to this appeal.
4 The trial court imposed the one-year prior prison term enhancement on counts 1, 2, and 3,
and the minute order reflects in error that it was imposed on all four counts. A prior prison term
enhancement is “to be applied once to the indeterminate sentence and once to the determinate
sentence, unless the court elects to strike the conviction under section 1385.” (People v. Minifie
(2018) 22 Cal.App.5th 1256, 1265, fn. omitted.) Thus, as to one of the determinate counts, it
2.
$10,000 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of
$10,000 under section 1202.45, subdivision (a), suspended; a court operations assessment
of $160 under section 1465.8; and a court facilities assessment of $120 under
Government Code section 70373.
On appeal, defendant claims the jury’s premeditation finding is not supported by
substantial evidence. He also claims the trial court abused its discretion when it declined
to strike the section 12022.53, subdivision (d), firearm enhancement and, alternatively,
remand is required under People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) to
allow the court to consider imposing one of the lesser firearm enhancements; under
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), he is entitled to remand for an
ability-to-pay hearing on the fines and court assessments imposed; and under Senate Bill
No. 136, he is entitled to have the prior prison term enhancement stricken and remand for
resentencing.5
The People concede defendant is entitled to relief from the prior prison term
enhancement under Senate Bill No. 136, but they disagree that remand for resentencing
on that issue is required and they dispute defendant’s entitlement to any relief on his
other claims.
We reject defendant’s substantial evidence claim and his challenges to the firearm
enhancement, and we conclude that by failing to exercise his statutory right to object to
the $10,000 restitution fine, he forfeited his Dueñas claim in its entirety. (§ 1202.4,
subd. (d).) We agree with the parties that the prior prison term enhancement must be
stricken in light of Senate Bill No. 136, but remand for resentencing is unnecessary.
appears the court erred when it imposed the enhancement. Any error in the imposition of the
enhancement is moot, however, as is the clerical error in the minute order, given defendant’s
entitlement to relief from the enhancement under Senate Bill No. 136.
5 As discussed post, this court declined to follow Morrison in People v. Tirado (2019) 38
Cal.App.5th 637, 644, review granted Nov. 13, 2019, S257658 (Tirado).
3.
Therefore, we strike the prior prison term enhancement, which reduces defendant’s
sentence on count 1 from 41 years to life in prison to 40 years to life in prison. Except as
modified, the judgment is affirmed.
FACTUAL SUMMARY
I. Prosecution Case
A. Officer Perez
Around 11:15 p.m. on August 18, 2016, Porterville Police Officers Perez and
Duran were on patrol when Perez, who was a newer officer at the time, saw a car pass by
without a working rear license plate light. Perez activated his marked patrol vehicle’s
overhead lights, pulled behind the car, and notified the dispatcher of the stop. The car
slowed but kept going, and Perez then activated the red and blue emergency lights. He
thought the driver might be planning to pull over on Olive Avenue, so he was not
concerned.
As the car turned onto Olive, the passenger door opened and a man, later identified
as defendant, jumped out and ran. The car then came to rest along the curb. Officers
Perez and Duran exited their patrol vehicle, and Perez pursued defendant on foot while
Duran stayed with the driver, who was defendant’s girlfriend.
Defendant ran across the street with Perez chasing behind. Perez did not see
anything in defendant’s hands, which were visible to him, and he did not have anything
in his own hands; his taser and firearm were holstered. Perez announced himself as a
police officer and warned defendant he would get tasered if he did not stop.
Defendant looked back at Perez twice from approximately 10 feet away and
appeared surprised. Defendant then turned and from a “shooting stance” or a “[l]ow-
ready stance,” he pointed a gun at Perez. Perez saw a muzzle flash and as he turned to
avoid getting shot in the face, he felt a hit to his right buttock. Perez unholstered his
firearm and shot at defendant several times.
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Officer Duran ran toward Perez, who emptied his 15-round magazine at defendant.
Duran also fired several shots at defendant, and Perez recalled dropping behind Duran to
reload his firearm. When he looked up again, defendant was lying on the ground with his
firearm approximately six inches away. Perez took cover and saw defendant reaching for
his firearm. Approximately four times, Perez commanded defendant to stop or he would
be shot, Perez then fired at defendant several more times as defendant kept reaching for
the firearm. Defendant ceased reaching for his firearm at that point, and Perez informed
Duran he was shot and needed to get help.
Perez radioed for help and he testified that by then, he had forgotten about the
female driver, possibly due to his shock and extreme pain. As he walked toward the
patrol vehicle, he saw the driver running toward him and, unsure if she was armed, he
aimed his firearm at her and ordered her to stop multiple times. She finally dropped to
the ground about five feet from him.
Backup then arrived and Perez was taken to the hospital by ambulance. He was
shot one time through his right buttock and the bullet exited his inner thigh. His wound
was treated with stitches and he was off duty for four or five weeks.
B. Officer Duran
Officer Duran testified that after Officer Perez began chasing defendant and he
stayed with the driver, he heard two distinct gunshots. He took cover and heard
additional gunshots. He saw Perez and defendant facing each other approximately
15 yards apart, both in “postured stance[s]” with their hands on their firearms. Duran
aimed at defendant and fired one shot. Perez and defendant then entered a parking lot
and Duran lost sight of defendant behind a bush.
Duran ran to assist Perez and when he could see both again, defendant was still in
a postured stance with his gun in his hands. Duran heard multiple shots and fired his gun
again. Defendant then fell on the ground, face down. Perez approached and told Duran
he had been shot in the leg. The two took cover and Perez reloaded. Perez then moved
5.
to take cover behind a shipping container and Duran took cover behind a dumpster. They
ordered defendant to show his hands and Perez shot defendant again when defendant
lifted his left arm to point his gun at them.
Duran testified that defendant yelled, “‘Please stop, please stop.’” They told him
to show his hands and he attempted to do so, but was unable. His firearm was on the
ground within arm’s reach.
Duran heard someone say, “‘I want to see my babe. I want to see my babe.’” He
turned and saw the driver walking toward them. She finally got down on the ground after
repeated commands to do so.
Duran testified that Perez broke his cover. Although he told Perez to stay where
he was and that he would cover the driver, Perez kept moving forward. Duran thought
Perez was going to cover the driver, so he focused on defendant. Duran then heard the
driver say, “‘I want to see my babe’” two more times. Duran saw the driver was standing
again and he did not see Perez, so he commanded the driver to get down again. After
several commands, she complied, and Duran kept his focus on both the driver and
defendant.
Once backup arrived, defendant was handcuffed, and Duran was able to check on
Perez.
C. Other Evidence
One of the responding officers testified that when defendant was detained, he was
“[r]oughly” 10 feet away from his firearm, which was a revolver. The revolver held five
rounds, four live and one spent.
Investigators determined that the officers fired 29 shots, although only 27 shell
casings were recovered.
II. Defense Case
Defendant testified that he was not aware there was a gun in the car until his
girlfriend told him that the police were behind them and she had a gun. Neither of them
6.
was supposed to have a gun, and she asked him to take it and run so she would not get
caught with it. Defendant testified he put the gun in one pocket and her bag of
ammunition in another pocket. He then jumped from the car and ran.
Defendant saw an officer was gaining on him. He wanted to get rid of the gun, so
he reached into his pocket and as he turned to toss the gun, it discharged. Officer Perez
then fired at him, and he was “trying to dip and dodge,” and put the gun down. Perez
kept firing and defendant was hit, or possibly tripped, and went to the ground on his
stomach. Defendant testified he was calling out for them to stop and for help, and he was
telling officers that he did not have a gun. Defendant heard his girlfriend calling “‘babe’”
and he saw her running toward him. He was yelling that he surrendered and to stop
shooting him, but he could feel rounds hitting him. He testified he was shot at least five
times and right before he was handcuffed, he said, “‘I’m sorry, I don’t know—I don’t
know what’s going on.’”
Defendant testified he was surprised when the gun discharged. He denied he was
trying to fire the gun or that he intended to kill Perez.
On cross-examination, defendant conceded that he and his girlfriend each had
three felony convictions, and that they were codefendants in one of the cases. He also
conceded that he had a gun in his hand, but explained he was trying to avoid getting shot
and was not thinking about the gun he was holding. He said it all happened so fast and he
was in shock, and, even after reviewing the police report, he stated he did not recall
telling a police officer that he shot Perez because he was afraid.
III. Rebuttal
Sergeant Clower, whose family owns a gun shop and who has decades of
experience with firearms, explained that “pounds of pressure is how many pounds of
pressure on the trigger it takes to make the mechanism on the gun work to bring the
hammer back and fire the weapon.” He was familiar with defendant’s gun, a Charter
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.357 magnum, and testified that “[t]here is no way that that gun could fire without the
trigger being pulled.”
Officer Stoker testified that after defendant was taken into custody, Stoker asked
why defendant shot an officer. Defendant responded that he was scared, and he did not
state that it was an accident or that he did not mean to do it. Stoker also estimated
defendant’s gun was approximately five feet away from him when he was taken into
custody.
DISCUSSION
I. Substantial Evidence Challenge to Premeditation Finding
A. Standard of Review
“The Due Process Clause of the Fourteenth Amendment denies States the power to
deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt
every element of the charged offense[]” (Carella v. California (1989) 491 U.S. 263, 265,
citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by
substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the
relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
(People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must disclose substantial
evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Zamudio, supra, at p. 357.)
“In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.” (People v. Zamudio, supra, 43
Cal.4th at p. 357.) “‘[I]t is the jury, not the appellate court which must be convinced of
the defendant’s guilt .…’” (People v. Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “A
8.
reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict.” (People v. Zamudio, supra, at p. 357.)
B. Elements of Attempted Premeditated Murder
“An attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)
While murder is an unlawful killing with express or implied malice aforethought (§§ 187,
subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220), attempted murder
requires specific intent to kill, or express malice, “‘and the commission of a direct but
ineffectual act toward accomplishing the intended killing’” (People v. Smith (2005) 37
Cal.4th 733, 739; accord, People v. Gonzalez (2012) 54 Cal.4th 643, 653–654).6 Express
malice is shown when the defendant “‘either desires the victim’s death, or knows to a
substantial certainty that the victim’s death will occur.’” (People v. Houston (2012) 54
Cal.4th 1186, 1217; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
“For an attempt, the overt act must go beyond mere preparation and show that the
killer is putting his or her plan into action; it need not be the last proximate or ultimate
step toward commission of the crime or crimes [citation], nor need it satisfy any element
of the crime [citation].” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8;
accord, People v. Garton (2018) 4 Cal.5th 485, 514.) “[E]vidence of motive is often
probative of intent to kill[,]” but it “is not required to establish intent to kill[.]” (People v.
Smith, supra, 37 Cal.4th at p. 741.) Intent “may in many cases be inferred from the
defendant’s acts and the circumstances of the crime.” (Ibid.)
Unlike murder, “attempted murder is not divided into degrees, but the sentence
can be enhanced if the attempt to kill was committed with premeditation and
6 Section 188 was amended effective January 1, 2019, but that amendment is not relevant
to the issues raised in this appeal. (Stats. 2018, ch. 1015, § 2, p. 3.)
9.
deliberation.” (People v. Gonzalez, supra, 54 Cal.4th at p. 654.) More than a specific
intent to kill is required to support a finding of deliberation and premeditation. (People v.
Koontz (2002) 27 Cal.4th 1041, 1080.) “‘Deliberation’ refers to careful weighing of
considerations in forming a course of action; ‘premeditation’ means thought over in
advance.” (Ibid.) “‘The process of premeditation and deliberation does not require any
extended period of time. “The true test is not the duration of time as much as it is the
extent of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly.…” [Citations.]’” (Ibid.)
“In People v. Anderson (1968) 70 Cal.2d 15, 26–27 [(Anderson)], [the Supreme]
[C]ourt reviewed earlier decisions and developed guidelines to aid reviewing courts in
assessing the sufficiency of evidence to sustain findings of premeditation and
deliberation. [Citation.] [The court] described three categories of evidence recurring in
those cases: planning, motive, and manner of killing.” (People v. Halvorsen (2007) 42
Cal.4th 379, 419–420.) “[H]owever, ‘[u]nreflective reliance on Anderson for a definition
of premeditation is inappropriate.’” (People v. Koontz, supra, 27 Cal.4th at p. 1081;
accord, People v. Casares (2016) 62 Cal.4th 808, 824, disapproved on another ground by
People v. Dalton (2019) 7 Cal.5th 166, 214.) The California Supreme Court recently
reiterated, “In the years since Anderson, ‘“we have emphasized that its guidelines are
descriptive and neither normative nor exhaustive, and … reviewing courts need not
accord them any particular weight.”’ [Citation.] Anderson provides ‘a framework to aid
in appellate review,’ but it does not ‘define the elements of first degree murder or alter
the substantive law of murder in any way.’” (People v. Morales (2020) 10 Cal.5th 76,
89, citing People v. Rivera (2019) 7 Cal.5th 306, 324 & quoting People v. Perez (1992) 2
Cal.4th 1117, 1125; accord, People v. Casares, supra, at p. 824; People v. Halvorsen,
supra, at p. 420.)
10.
C. Analysis
Defendant does not challenge his conviction for the attempted murder of a peace
officer, but he argues that the evidence is insufficient to support the jury’s finding that the
attempted murder was willful, deliberate and premeditated. For support, he relies on the
Court of Appeal’s decision in People v. Boatman (2013) 221 Cal.App.4th 1253
(Boatman) and the asserted absence of evidence supporting the Anderson factors. We are
unpersuaded, as the facts in this case are distinguishable from those in Boatman, and the
California Supreme has repeatedly cautioned against “‘[u]nreflective reliance on
Anderson .…’” (People v. Koontz, supra, 27 Cal.4th at p. 1081.)
In Boatman, the defendant shot and killed his girlfriend, but claimed it was
accidental. (Boatman, supra, 221 Cal.App.4th at p. 1257.) The Court of Appeal
concluded the evidence was insufficient to support the jury’s finding of premeditation
and deliberation, and it reduced the defendant’s murder conviction from first degree to
second degree. (Ibid.)
There was evidence that the defendant and his girlfriend, who were in a bedroom
when the shooting occurred, argued prior to the shooting. (Boatman, supra, 221
Cal.App.4th at p. 1258.) Afterward, defendant was “horrified and distraught .…” (Id. at
p. 1267.) He could be heard in the background of the 911 call crying and repeating,
“‘[n]oooo,’ ‘[b]aby,’ and ‘[b]aby are you alive, baby’” (id. at p. 1261); he told responding
police to call an ambulance (id. at p. 1258); and he cried during the trip to the police
station, inquired about his girlfriend, and expressed that he could not lose her and would
do anything for her (id. at p. 1259).
In reviewing the evidence, the court stated, “Although [the defendant’s] statements
regarding the shooting were inconsistent in significant respects, there is nothing in any of
his statements to indicate that he considered shooting [her] beforehand or carefully
weighed considerations for and against killing her.” (Boatman, supra, 221 Cal.App.4th
at p. 1265.) The court then considered the circumstantial evidence, finding, “[t]he
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present case lacks any planning evidence whatsoever,” and “[t]here is little or no relevant
motive evidence here.” (Id. at p. 1267.) As to the manner of killing, the court
acknowledged that the defendant shot his girlfriend in the face, but observed, “Even
when manner of killing evidence is strong, cases in which findings of premeditation and
deliberation are upheld typically involve planning and motive evidence as well.” (Id. at
p. 1268.)
Ultimately, the court held, “A first degree murder conviction premised upon
premeditation and deliberation requires more than a showing of the intent to kill; it
requires evidence from which reasonable jurors can infer that the killing is the result of
the defendant’s preexisting thought and reflection. [Citations.] Here, viewing the
evidence in the entire record in the light most favorable to the prosecution, we conclude
that there is ample evidence to support the jury’s verdict of murder, but insufficient
evidence to support the finding that [the] defendant killed [his girlfriend] with
premeditation and deliberation. We will therefore reduce the conviction to second degree
murder.” (Boatman, supra, 221 Cal.App.4th at p. 1274.) Critical to the court’s view of
the evidence was its recognition that “[a]lthough the jury could refuse to believe [the
defendant’s] testimony, such disbelief cannot support an inference ‘that [the] defendant
did that which he denied doing.’” (Id. at p. 1267, quoting People v. Velazquez (2011)
201 Cal.App.4th 219, 231.)
In this case and in contrast with Boatman, the jury was apprised of how the
shooting unfolded by virtue of the testimony of multiple witnesses. While there is no
evidence the shooting was planned well in advance, there is evidence on the issues of
motive and method. The events unfolded relatively rapidly, but, viewed in the light most
favorable to the prosecution, defendant was fleeing police, demonstrating his motivation
to escape. Initially, the gun was in his pocket, along with a bag of ammunition in another
pocket. Defendant turned twice while running and, realizing Officer Perez was gaining
12.
on him, he removed his gun from his pocket, adopted a shooting stance with both hands
on the gun, aimed at Officer Perez, and pulled the trigger.
Although defendant only fired one of five rounds, the jury was not obligated to
believe his testimony that the gun discharged accidentally as he was trying to throw it.
Evidence of the shooting stance he adopted when he turned and then fired undermines
this testimony. Moreover, there is no evidence that defendant threw his gun at any point,
and Officer Stoker testified unequivocally that the revolver could not discharge unless the
trigger was pulled due to the pounds of pressure required to fire it. There is also evidence
that after defendant fell to the ground, he, at best, reached repeatedly for his gun or, at
worst, raised it at officers; and both officers perceived that he presented a continuing
threat. After the shooting, defendant did not express concern for Officer Perez, he did not
state either that the shooting was an accident or that he did not mean to do it, and he did
not otherwise express remorse. (Cf. Boatman, supra, 221 Cal.App.4th at p. 1267.)
Instead, after he was shot and lying on the ground, defendant testified that he called out
he surrendered, and he later offered a single explanation to police regarding why he shot
Officer Perez: he was scared.
This evidence amply supports the jury’s conclusion that the shooting “‘“‘occurred
as the result of preexisting thought and reflection rather than unconsidered or rash
impulse.’”’” (People v. Morales, supra, 10 Cal.5th at p. 88; accord, People v. Nelson
(2011) 51 Cal.4th 198, 213 [taking up firearm, climbing out of a moving car, sitting on
window frame, reaching across roof, bracing, and aiming at victim sufficient to show
intent to kill and premeditation]; People v. Perez (2010) 50 Cal.4th 222, 230 [shooting a
single bullet at someone from close range that could have inflicted mortal wound
supported findings of intent to kill and premeditation].) Accordingly, we reject
defendant’s contrary argument and affirm the jury’s finding of willfulness, deliberation
and premeditation.
13.
II. Firearm Enhancement
A. Background
As stated, the jury found the firearm enhancement allegations under
section 12022.53, subdivisions (b)–(d), true, and the trial court imposed the greatest term
of 25 years to life under subdivision (d) when it sentenced defendant on July 20, 2018.
Pursuant to Senate Bill No. 620, effective January 1, 2018, section 12022.53,
subdivision (h), was amended 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.” (Stats. 2017, ch. 682, § 2, p. 3 (Senate
Bill No. 620).) Prior to this amendment, imposition of a firearm enhancement found true
under section 12022.53 was mandatory and if more than one enhancement was found
true, the court was required to impose the greatest term. (§ 12022.53, subd. (f).)
Defendant advances two challenges to imposition of the firearm enhancement
under section 12022.53, subdivision (d). First, he claims the trial court abused its
discretion when it imposed the enhancement of 25 years. Second, relying on Morrison,
he claims this matter must be remanded because the trial court was unaware of the scope
of its discretion to impose a lesser firearm enhancement of either 10 years under
subdivision (b) or 20 years under subdivision (c) of section 12022.53. We reject both
arguments.
B. Abuse of Discretion
Although defendant does not claim his sentence is unconstitutional or
unauthorized, his assertion that the trial court abused its discretion in imposing the
firearm enhancement under section 12022.53, subdivision (d), appears to draw in spirit
from those legal principles. Defendant argues first that in this case, “a life sentence with
a mandatory 15 years constitutes substantial punishment that serves the penological
interests of the state and interests of justice” while a sentence of “41 years to life does
not.” Second, he cites to People v. Young (1983) 146 Cal.App.3d 729 and argues that the
14.
court “used the victim’s law enforcement status as a factor to raise [his] sentence for the
premeditated attempted murder of Officer Perez which had already been increased
‘beyond the maximum otherwise prescribed’ by subdivision (f) of section 664.”
However, section 12022.53 has long been upheld against challenges on the ground
of cruel or unusual punishment, and, as stated, defendant is not pursuing a constitutional
claim. (People v. Garcia (2017) 7 Cal.App.5th 941, 951; People v. Vallejo (2013) 214
Cal.App.4th 1033, 1045; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1215–1216.)7
Nor can he claim, as he acknowledges, that in imposing the mandatory indeterminate
term and the sentence enhancement, the trial court impermissibly relied on “a dual use of
facts, prohibited by section 1170, subdivision (b),” which applies to determinate
sentencing. (People v. Young, supra, 146 Cal.App.3d at p. 734; see People v. Moberly
(2009) 176 Cal.App.4th 1191, 1197–1198 [discussing limited circumstances in which
dual use of facts is prohibited in determinate sentencing].)8
Section 12022.53 provides for “escalating additional and consecutive penalties,
beyond that imposed for the substantive crime, for use of a firearm in the commission of
specified felonies” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124), subject to the trial
7 This case does not involve any of the special considerations that may attach to juvenile or
young adult offenders; defendant was 29 years old at the time of the crime.
8 Subdivision (b) of section 1170, which applies to determinate sentencing, provides:
“When a judgment of imprisonment is to be imposed and the statute specifies three possible
terms, the choice of the appropriate term shall rest within the sound discretion of the court. At
least four days prior to the time set for imposition of judgment, either party or the victim, or the
family of the victim if the victim is deceased, may submit a statement in aggravation or
mitigation. In determining the appropriate term, the court may consider the record in the case,
the probation officer’s report, other reports, including reports received pursuant to
Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim is deceased, and any further
evidence introduced at the sentencing hearing. The court shall select the term which, in the
court’s discretion, best serves the interests of justice. The court shall set forth on the record the
reasons for imposing the term selected and the court may not impose an upper term by using the
fact of any enhancement upon which sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is suspended.” (Italics added.)
15.
court’s ability to exercise its discretion to strike or dismiss the enhancement under
section 1385 (§ 12022.53, subd. (h)). Section 1385 in turn permits the enhancement to be
stricken or dismissed if the trial court determines it is “in furtherance of justice,” and the
reasons underlying the exercise of such discretion must be stated on the record. (§ 1385,
subds. (a), (b).) At bottom, defendant disagrees with imposition of the enhancement, and
his claim is founded on the proposition that because the trial court determined it was not
in the furtherance of justice to strike the firearm enhancement and declined to exercise its
discretion to do so, it abused its discretion. This inverts the applicable legal principles.
We review the trial court’s sentencing decision for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) As the party challenging the sentence, defendant
bears the burden of “‘“clearly show[ing] that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.”’” (People
v. Carmony (2004) 33 Cal.4th 367, 376–377, quoting People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 977–978; accord, People v. Lee (2017) 16 Cal.App.5th 861, 866.)
Further, “a ‘“decision will not be reversed merely because reasonable people might
disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’”’” (People v. Carmony, supra, at p. 377,
quoting People v. Superior Court (Alvarez), supra, at p. 978.) “Taken together, these
precepts establish that a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.” (People v.
Carmony, supra, at p. 377.)
Defendant has no entitlement to relief from the firearm enhancement pursuant to
sections 12022.53, subdivision (h), and 1385, subdivision (b), and he cites no legal
authority and makes no legal argument to the contrary. Rather, his argument simply
expresses disagreement with the decision. Defendant shot a police officer while trying to
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escape from a traffic stop and, on this record, we can discern no viable basis for a claim
that because the court declined to exercise discretion to strike the enhancement, it abused
its discretion.
C. Lack of Informed Discretion in Imposing Greatest Enhancement
Next, defendant claims that remand is required because the trial court was
unaware of the scope of its discretion to select one of the two lesser firearm
enhancements. We conclude the record does not support this view.
1. Standard of Review
“‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, we have held
that the appropriate remedy is to remand for resentencing unless the record ‘clearly
indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.’” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391; accord, People v. Flores (2020) 9 Cal.5th 371, 431–432; People v. Yanaga (2020)
58 Cal.App.5th 619, 625.) However, “we presume that a judgment or order of the trial
court is correct, ‘“[a]ll intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively shown.”’”
(People v. Giordano (2007) 42 Cal.4th 644, 666.) Furthermore, remand is not required
when it would be an idle act. (People v. Flores, supra, at p. 432, citing People v.
McDaniels (2018) 22 Cal.App.5th 420, 425; accord, People v. Jefferson (2019) 38
Cal.App.5th 399, 409; People v. Allison (2019) 39 Cal.App.5th 688, 705–706.)
2. Morrison and Tirado
Defendant relies on the Court of Appeal’s decision in Morrison for support.
Morrison concerned the trial court’s discretion to impose lesser enhancements under
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section 12022.53 that had not been found true by the jury. (Morrison, supra, 34
Cal.App.5th at p. 220.) In Morrison, the jury convicted the defendant of first degree
murder and found the firearm enhancement alleged under section 12022.53,
subdivision (d), true. (Morrison, supra, at p. 220.) However, the prosecutor had
dismissed the lesser enhancements alleged under section 12022.53, subdivisions (b) and
(c), and those enhancements were not presented to the jury for consideration. (Morrison,
supra, at p. 221.)
On appeal, the defendant claimed the trial court misunderstood the scope of its
discretion to modify the enhancement to one of the “‘lesser included enhancement[s]’”
under the statute. (Morrison, supra, 34 Cal.App.5th at p. 221.) The appellate court
concluded that because “the court may impose a ‘lesser included’ enhancement that was
not charged in the information when a greater enhancement found true by the trier of fact
is either legally inapplicable or unsupported by sufficient evidence,” the trial court also
has the discretion under section 1385 to strike the greater enhancement under
subdivision (d) and impose a lesser enhancement under subdivision (b) or (c) of
section 12022.53, notwithstanding that the jury did not make findings as to those
enhancements. (Morrison, supra, at pp. 222–223.)
After briefing was complete in this case, this court, in an opinion authored by
Justice Detjen, declined to follow Morrison’s lead with respect to the scope of the trial
court’s authority under section 1385 where the jury did not find a lesser enhancement
true. (Tirado, supra, 38 Cal.App.5th at p. 644, review granted; accord, People v.
Delavega (2021) 59 Cal.App.5th 1074, 1094; People v. Valles (2020) 49 Cal.App.5th
156, 167, review granted July 22, 2020, S262757; People v. Garcia (2020) 46
Cal.App.5th 786, 790–791, review granted June 10, 2020, S261772; People v. Yanez
(2020) 44 Cal.App.5th 452, 457–458, review granted Apr. 22, 2020, S260819.) In
Tirado, the prosecutor alleged, and the jury found true, a firearm enhancement under
section 12022.53, subdivision (d). (Tirado, supra, at pp. 640–641, review granted.) As
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in Morrison, the defendant claimed on appeal that “the trial court committed an abuse of
discretion because it was unaware that pursuant to sections 1385 and 12022.53,
subdivision (h) it could have substituted the section 12022.53, subdivision (d)
enhancement with a different enhancement within the same section.” (Tirado, supra, at
p. 641, review granted.)
This court interpreted section 12022.53, subdivision (h), and section 1385, and
concluded that the Legislature did not “grant the trial court the power to modify or reduce
a firearm enhancement .…” (Tirado, supra, 38 Cal.App.5th at p. 643, review granted.)
Tirado noted its “conclusion is consistent with the well-settled principle that ‘prosecuting
authorities, exercising executive functions, ordinarily have the sole discretion to
determine … what charges to bring,’” and “because the People exercised their charging
discretion to allege only one enhancement, the trial court was limited to either imposing
or striking that enhancement.” (Id. at p. 644.) The court “recognize[d] the trial court has
the authority to impose a ‘“‘lesser included enhancement[]’”’ following trial ‘when the
charged enhancement is either factually unsupported or inapplicable to the offense of
conviction’” but “the enhancement at issue was neither unsupported by the law nor
unsupported by the evidence.” (Ibid.)
This case does not present the same issue as in Morrison and Tirado because the
prosecutor charged three firearm enhancements under section 12022.53 and all three were
found true by the jury. (People v. Wang (2020) 46 Cal.App.5th 1055, 1090.) Thus, the
trial court could have exercised discretion to select one of the lesser enhancements, but it
did not do so. (Id. at pp. 1090–1091; Tirado, supra, 38 Cal.App.5th at p. 644, review
granted.) The question here is whether defendant has met his burden of showing the trial
court was unaware of the scope of its sentencing discretion. We conclude he has not.
3. Record Indicates Trial Court Aware of Scope of Discretion
The trial court expressed awareness of its discretion to strike firearm
enhancements pursuant to the amendment of section 12022.53, subdivision (h), effected
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by Senate Bill No. 620. Furthermore, after the trial court pronounced judgment, the
prosecutor revisited the firearm enhancement for the purpose of clarification, as follows:
“[PROSECUTOR]: … I’d like to just make sure the record is really
clear. I have a concern about the way you worded it on choosing ‘not to
use my discretion.’ And just to make it clear, and I think it is by the fact
that you did impose the 25-to-life, but that you are using your discretion
and imposing—
“THE COURT: I acknowledge my right to use my discretion. I
indicated the reason why I did not use my discretion to strike the special
allegation. I further noted that I used my discretion to impose the 25-to-life
special allegation.” (Italics added.)
“In the absence of evidence to the contrary, we presume that the court ‘knows and
applies the correct statutory and case law’” (People v. Thomas (2011) 52 Cal.4th 336,
361), and as stated, “‘“error must be affirmatively shown”’” (People v. Giordano, supra,
42 Cal.4th at p. 666). Here, the trial court’s express statement indicates it understood the
scope of its sentencing discretion as to the firearm enhancements found true by the jury.
Defendant advances no argument that persuades us otherwise on this record and,
notwithstanding this court’s contrary decision in Tirado, his reliance on Morrison is
misplaced where, as here, the jury found all three section 12022.53 enhancements true.
III. Dueñas Claim
As previously set forth, the trial court imposed a maximum restitution fine of
$10,000 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of
$10,000 under section 1202.45, subdivision (a), suspended; a total court operations
assessment of $160 under section 1465.8; and a total court facilities assessment of $120
under Government Code section 70373. Defendant challenges the imposition of fines,
fees and assessments without a determination on his ability to pay, in accordance with the
postsentencing decision in Dueñas. The People dispute defendant’s entitlement to any
relief under Dueñas.
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Defendant had a statutory right to object to the $10,000 restitution fine when it
was imposed, based on inability to pay, but he did not do so. (§ 1202.4, subds. (c), (d).)
Accordingly, we conclude defendant forfeited appellate review of his claim that the trial
court erred in imposing the fines and court assessments without determining his ability to
pay. (People v. Montelongo (2020) 55 Cal.App.5th 1016, 1033–1035; People v. Taylor
(2019) 43 Cal.App.5th 390, 399–400; People v. Gutierrez (2019) 35 Cal.App.5th 1027,
1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1154.) We recognize that
the imposition of court operations and facilities assessments under Penal Code
section 1465.8 and Government Code section 70373 is statutorily mandated irrespective
of ability to pay, but we agree with the Court of Appeal in People v. Gutierrez that “[a]s a
practical matter, if [defendant] chose not to object to a $10,000 restitution fine based on
an inability to pay, he surely would not complain on similar grounds regarding an
additional $[280] in fees.” (People v. Gutierrez, supra, at p. 1033; accord, People v.
Montelongo, supra, at p. 1034.)
In People v. Taylor, the Court of Appeal applied the forfeiture doctrine where the
defendant failed to object to the imposition of the maximum restitution fine, but declined
to do so with respect to the court operations and facilities fees, reasoning that the
defendant’s failure to object to the restitution fine despite a statutory right to do so may
have been based on reasons unrelated to his ability to pay. (People v. Taylor, supra, 43
Cal.5th at pp. 400–401; accord, People v. Oliver (2020) 54 Cal.App.5th 1084, 1100–
1101.) We are unpersuaded on that point, however, and conclude that defendant forfeited
his ability-to-pay claim under Dueñas in its entirety by failing to object to the $10,000
restitution fine.
IV. Senate Bill No. 136
Finally, pursuant to section 667.5, subdivision (a), and subject to an exception not
relevant here, trial courts are required to impose a three-year sentence for each prior,
separate prison term served by the defendant for a violent felony where the current
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offense is also a violent felony, as defined in subdivision (c) of the statute. For other
felonies, pursuant to former subdivision (b), and subject to exceptions not relevant here,
trial courts are required to impose an additional one-year term for each prior, separate
prison term or county jail felony term. As amended by Senate Bill No. 136,
subdivision (b) of section 667.5 limits imposition of the additional one-year term to each
prior, separate prison term served for a conviction of a sexually violent offense as defined
in Welfare and Institutions Code section 6600, subdivision (b).
We agree with the parties that Senate Bill No. 136 is retroactive under the rule
articulated in In re Estrada (1965) 63 Cal.2d 740, 748 and that defendant’s prior
conviction under section 496, subdivision (a), for receiving stolen property is not a
qualifying offense under section 667.5, subdivision (b), as amended. Therefore, we order
the one-year prior prison term enhancement stricken, which reduces defendant’s sentence
on count 1 from 41 years to life to 40 years to life.9
DISPOSITION
The judgment is modified to reflect that the one-year prior prison term
enhancement imposed under section 667.5, former subdivision (b), is stricken pursuant to
Senate Bill No. 136. The trial court shall issue an amended abstract of judgment and
9 As the People contend, remand for resentencing on this issue is not required given
defendant’s mandatory sentence of 15 years to life on count 1 pursuant to section 664,
subdivision (f). (People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.)
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forward a certified copy to the appropriate authorities. The judgment is otherwise
affirmed.
MEEHAN, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
DETJEN, J.
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