People v. Millbrook CA1/1

Filed 8/10/21 P. v. Millbrook CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A160684
v.
JEREMY L. MILLBROOK, (Alameda County
Super. Ct. No. H49349)
Defendant and Appellant.

In December 2009, when he was 18 years old, defendant Jeremy
Millbrook fired one shot at Sione Manoa while the two were arguing at a
party. The bullet hit Manoa in the chest and also struck the hand of
Matthew Galvan, Manoa’s friend who was trying to defuse the argument. In
the first trial in this case, a jury convicted Millbrook of attempted murder of
Manoa, assault with a firearm on Manoa, and assault with a firearm on
Galvan. This court reversed the conviction for attempted murder, concluding
that the trial court erred by not instructing the jury on the lesser included
offense of attempted voluntary manslaughter. (People v. Millbrook (2014)
222 Cal.App.4th 1122, 1151 (Millbrook I).)
The case was retried, and a jury again convicted Millbrook of attempted
murder. The jury also found true several enhancements involving the use of
firearms and the infliction of great bodily injury. The trial court sentenced

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Millbrook to a total term of 35 years and four months to life in prison. This
sentence included a term of 25 years to life for a firearm enhancement under
Penal Code section 12022.53, subdivision (d) (section 12022.53(d)), attached
to the attempted murder charge.1 The sentence also included a term of one
year and four months for a firearm enhancement under section 12022.5,
subdivision (a) (section 12022.5(a)), attached to the charge of assaulting
Galvan. Another term of one year for a firearm enhancement under
section 12022.5(a), attached to the charge of assaulting Manoa, was imposed
but stayed.
Millbrook again appealed after he was sentenced. While the appeal
was pending, Senate Bill No. 620 (2017–2018 Reg. Sess.) went into effect,
giving courts the discretion to strike or dismiss firearm enhancements in the
interest of justice pursuant to section 1385. This court subsequently affirmed
the convictions but remanded for the trial court to consider whether to strike
any firearm enhancement. (People v. Millbrook (Nov. 29, 2018, A148286)
[nonpub. opn.] (Millbrook II).)
On remand after Millbrook II, the trial court determined it would not
strike the section 12022.53(d) enhancement that was attached to the
attempted murder charge nor impose a lesser enhancement. The court did
not explicitly address the section 12022.5(a) enhancements on the assault
convictions.
On appeal, Millbrook argues that the trial court (1) abused its
discretion in not striking the section 12022.53(d) enhancement or imposing a
lesser one; and (2) was unaware of its discretion to strike the

1All further statutory references are to the Penal Code unless
otherwise noted.

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section 12022.5(a) enhancement on the Galvan assault count.2 We reject
these arguments and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On December 19, 2009, Fernanda Plascencia held a party at her San
Leandro home to celebrate her birthday.3 Among the guests was 19-year-old
Jennifer Diaz, a close friend of Plascencia, and Millbrook, Diaz’s fiancé. The
guests also included 20-year-old Manoa and 21-year-old Galvan, both co-
workers of Plascencia. Most of the guests, including Manoa and Galvan, were
drinking alcohol. At some point during the party, Manoa and Diaz began to
argue, yelling and cursing at each other. Around the same time, Manoa also
argued with Bianca Velez, another friend of Plascencia and Diaz.
Millbrook soon confronted Manoa in the kitchen about Manoa’s
behavior towards the women, and the two men began to argue. Galvan
stepped between them, facing Manoa, and tried to defuse the argument.
Manoa’s hands were clenched, and Galvan was concerned the fight would
turn physical. Manoa told Millbrook, “ ‘You better check your bitch,’ ” and
threatened to beat him up as well. Millbrook testified that Manoa seemed to
be trying to get around Galvan to attack either him or Diaz. Millbrook then
pulled out a gun and fired it at Manoa.

2Millbrook does not challenge the section 12022.5(a) enhancement
attached to the Manoa assault count.
3 We draw the underlying facts from Millbrook II, which addressed the
evidence presented at the second trial. As we explained in that opinion, there
were some differences between that evidence and the evidence presented at
the first trial, but they are not material to this appeal except as discussed
further below.

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 Manoa was shot in the chest, and it was stipulated that he suffered
great bodily injury. The bullet is still lodged in his spine and cannot be
removed, posing an ongoing risk of paralysis. Galvan was shot in the hand.
An unfired bullet and cartridge case and a cartridge case from a fired bullet
were found in the kitchen. This evidence suggested that Millbrook’s gun had
a bullet in the chamber when he pulled it out, that he unnecessarily ejected
that bullet by manually racking the gun’s slide, and that he fired one shot.
After the gunshot, guests dispersed, and Millbrook and Diaz fled the
party, disposed of the gun, and drove to Reno. Millbrook was soon
apprehended.
Millbrook’s explanation of the shooting changed over time. He
originally denied to the police that he had ever been at the party. In the first
trial, he admitted that he shot Manoa but claimed he did so only after Manoa
pulled a gun on him, which no other witness or evidence corroborated.
(Millbrook I, supra, 222 Cal.App.4th at pp. 1133–1134.) In the second trial,
Millbrook claimed that he pulled out the gun because he was angry and felt
disrespected. He wanted Manoa to back down, so he racked the slide to show
Manoa that he “meant business.” Millbrook testified that the gun then
accidentally discharged and that he never intended to fire it or shoot Manoa.
The second jury convicted Millbrook of attempted murder and found
true the enhancement allegation that he personally and intentionally
discharged a firearm causing great bodily injury to Manoa.4 As affirmed in
Millbrook I, Millbrook also stood convicted of assault with a firearm on

4 Millbrook was convicted of attempted murder under sections 187,
subdivision (a), and 664, subdivision (a). As we have said, the accompanying
firearm enhancement was found true under section 12022.53(d). It also
appears from the record that the jury found true lesser enhancements under
section 12022.53, subdivisions (b) and (c).

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Manoa and assault with a firearm on Galvan, with accompanying
enhancements on both convictions for personal use of a firearm and infliction
of great bodily injury.5
As we have said, the trial court sentenced Millbrook to a total term of
35 years and four months to life. This sentence was composed of consecutive
terms of seven years for the attempted murder; 25 years to life for the
personal and intentional discharge of a firearm causing great bodily injury;
one year for the assault with a firearm on Galvan; one year, four months for
the personal use of a firearm during that assault; and one year for the
infliction of great bodily injury during that assault. Terms of three years for
the assault with a firearm on Manoa, four years for the personal use of a
firearm during that assault, and three years for the infliction of great bodily
injury during that assault were imposed and stayed.
In Millbrook II, Millbrook raised seven arguments, including one in
which he sought a remand for the trial court to exercise its discretion under
Senate Bill No. 620, which was enacted after he was sentenced in the second
trial in April 2016.6 At the time of the sentencing, the court had no discretion
to strike enhancements under sections 12022.5(a) or 12022.53(d). (Former
§§ 12022.5, subd. (c), 12022.53, subd. (h).) Senate Bill No. 620, however,
went into effect on January 1, 2018, and it authorized trial courts “in the

5 The assault convictions were under section 245, subdivision (a)(2),
and the enhancement allegations were found true under sections 12022.5(a)
(use of firearm) and 12022.7, subdivision (a) (great bodily injury).
6 Millbrook also claimed, and this court agreed, that remand was
required under People v. Franklin (2016) 63 Cal.4th 261 to ensure he had a
sufficient opportunity to make a record for a future youth-offender parole
hearing. Our record shows that the trial court scheduled a hearing to give
Millbrook this opportunity, and the court’s response to this aspect of
Millbrook II is not at issue here.

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interest of justice pursuant to Section 1385 and the time of sentencing, [to]
strike or dismiss an enhancement otherwise required to be imposed by this
section.” (§§ 12022.5, subd. (c), 12022.53, subd. (h).) The Legislature made it
clear that Senate Bill No. 620 applied retroactively to all nonfinal cases.
(People v. Arredondo (2018) 21 Cal.App.5th 493, 507–508.)
Thus, in Millbrook II, we remanded for the trial court to consider
“whether the interest of justice will be vindicated by striking any of the
firearm enhancements because their application is too severe in this case.”
Specifically, the disposition directed the trial court “to consider whether to
strike or dismiss the firearm enhancements imposed under Penal Code
sections 12022.5, subdivision (a)[,] and 12022.53, subdivision (d).”
On June 12, 2020, the trial court held a hearing on remand. After
hearing arguments from counsel as to the section 12022.53(d) enhancement,
the court refused to strike the enhancement or substitute a lesser
enhancement under subdivision (b) or (c) of section 12022.53. The court did
not explicitly address the section 12022.5(a) enhancements on the assault
convictions, and they remained part of the sentence.
II.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Not Striking or
Dismissing the Section 12022.53(d) Enhancement.
Section 12022.53 establishes three sentencing enhancements of varying
lengths for the personal use of a firearm during the commission of certain
felonies, including attempted murder. Subdivision (b) requires a 10-year
enhancement for the personal use of a firearm during a qualifying offense,
subdivision (c) requires a 20-year enhancement if the firearm is personally
and intentionally discharged, and subdivision (d) requires a 25-years-to-life
sentence if the firearm is personally and intentionally discharged and

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proximately causes great bodily injury or death. The jury in the second trial
found true enhancements under all three subdivisions. Because Senate Bill
No. 620 amended section 12022.53 to provide the trial court with the
discretion to strike or dismiss these enhancements and because the jury
found true all three, it is settled that the court had discretion to strike the
subdivision (d) enhancement and impose a subdivision (b) or (c) enhancement
instead.7
At the hearing, Millbrook argued that mitigating factors, including his
family background, his young age at the time of the offense, and the context
of the shooting, warranted striking the section 12022.53(d) enhancement and
imposing a lesser enhancement to make the sentence determinative. The
prosecution argued that the trial court should not strike the enhancements,
in part because Millbrook was not in imminent danger when he shot Manoa
and Manoa suffered great bodily injury and still lives with the consequences
of the bullet in his spine. The court declined to strike the section 12022.53(d)
enhancement or impose a lesser enhancement. In doing so, the court stated,
“I just can’t reach the conclusion that I feel that the interest of justice would
best be served or be better served by doing so, and therefore I should not
exercise my discretion and strike the [section] 12022.53(d) enhancement.”
On appeal, Millbrook argues that the trial court abused its discretion in
not striking the section 12022.53(d) enhancement or in not imposing a lesser
one under section 12022.53, subdivision (b) or (c). He further contends that

7The issue whether a trial court can strike a firearm enhancement
under section 12022.53 and impose one of the lesser enhancements under the
statute if the jury did not separately find the lesser enhancements true is
currently on review in the Supreme Court. (People v. Tirado (2019)
38 Cal.App.5th 637, 639, review granted Nov. 13, 2019, S257658.) As the
jury here did separately find true the enhancements under section 12022.53,
subdivisions (b) and (c), this issue is not implicated here.

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the court “gave little consideration to eliminating the indeterminate feature
of [the] sentence and imposing a determinate enhancement in its place”; did
not give “much thought to [his] age at the time of the crimes”; and did not
consider that “the shooting occurred under conditions of great stress.” We are
not persuaded.
A trial court’s refusal to dismiss a section 12022.53 firearm
enhancement is reviewed under the deferential abuse of discretion standard.
(People v. Pearson (2019) 38 Cal.App.5th 112, 116 (Pearson).) “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 (2004)
33 Cal.4th 367, 377 (Carmony).) The burden is on the appellant to show that
the decision was irrational or arbitrary. (Id. at p. 376.)
To determine whether to strike a firearm enhancement in the interest
of justice, trial courts should consider the factors from California Rules of
Court, rule 4.428(b), as well as the general objectives of sentencing and the
circumstances in aggravation and mitigation. (Pearson, supra,
38 Cal.App.5th at p. 117.) “ ‘[U]nless the record affirmatively reflects
otherwise,’ ” a trial court is deemed to have considered these factors. (Ibid.)
The exercise of sentencing discretion must also be intensely fact-bound, and
the record must reflect that such an inquiry occurred. (People v. Superior
Court (Alvarez) (1997) 14 Cal.4th 968, 981–982.) “ ‘[W]here the record
demonstrates that the trial court balanced the relevant facts and reached an
impartial decision in conformity with the spirit of the law, we shall affirm the
trial court’s ruling.’ ” (Carmony, supra, 33 Cal.4th at p. 374.)
Millbrook relies on People v. Morrison (2019) 34 Cal.App.5th 217 to
argue that the trial court’s considerations were inadequate and warrant
remand. The decision does not aid him. In Morrison, the case was remanded

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for resentencing because the record did not show that the trial court
understood it could impose a lesser enhancement under section 12022.53,
subdivision (b) or (c). (Morrison, at pp. 223–225.) In contrast, the record here
shows that the trial court explicitly weighed the available options, stating,
“[D]o I narrow it down to strike the D”—i.e., the section 12022.53(d)
enhancement—“and give [Millbrook] the C”—i.e., the section 12022.53(c)
enhancement—“and make it a determinate 30 year or so sentence?” The
court also stated, “I got choices. One choice is, what you’re asking me to do, is
strike that punishment, 25 to life . . . . [¶] Or I could strike the 12022.53(d),
which is the 25 to life, and drop it down to the C . . . . [¶] Or I could drop
down even further and give him ten for the use.” Further, the court
recognized that it was “not just limited to all or nothing.” The court was
clearly aware of its discretion and available options.
The record also demonstrates that the trial court, which stated that it
had “been wrestling with [its decision] for months,” considered the relevant
sentencing factors and applied them to the facts of this case. The court read
the briefs, Millbrook’s letter to the court, this court’s Millbrook II opinion,
and the probation report; and, having presided over the retrial and
sentencing, took into account its own interactions with Millbrook. The court
also explicitly considered the following factors: the seriousness of the offense;
the fact that the attempted murder was intentional; the circumstances of the
“heated argument”; the shooting’s long-term health effects and risks for
Manoa; the evolution of Millbrook’s testimony; Millbrook’s lack of a criminal
record; Millbrook’s sentence in comparison to the sentence in comparable
cases; and Millbrook’s age at the time of the offense.
Indeed, the trial court addressed Millbrook’s age three times. It
observed, “As we get older, we look back and we realize we really were young

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and stupid . . . . [¶] So you got an 18-year-old guy who is packing a gun.” The
court also balanced “all these really bad things about this case, including the
long-term effects on [Manoa],” against the fact that Millbrook was a “young
and stupid 18-year-old who was stupid for even packing a gun in the first
place.” Finally, “weighing all these, the bad things against . . . the
mitigating[,] . . . [¶] . . . [¶] [n]ot the least of which are, he’s an 18-year old
kid,” the court concluded that the interests of justice would not be served by
striking the section 12022.53(d) firearm enhancement.
Although the trial court did not explicitly reference the California
Rules of Court, its considerations aligned with the relevant factors. (See, e.g.,
Cal. Rules of Court, rules 4.410 [general objectives of sentencing include
punishing defendant and achieving uniformity in sentencing], 4.421
[circumstances in aggravation include great bodily harm and use of weapon],
4.423 [circumstances in mitigation include victim’s provocation and
defendant’s clear record].) Nothing in the record suggests that the court
failed to consider other required factors. (See Cal. Rules of Court, rule 4.409
[“Relevant factors enumerated in these rules must be considered by the
sentencing judge, and will be deemed to have been considered unless the
record affirmatively reflects otherwise”].) Although Millbrook’s briefing
highlights the current sentencing trends that “acknowledge more factors
which mitigate against . . . extremely long sentences,” the factors in
determining whether to strike a firearm enhancement are the same as those
which a court must consider when handing down the sentence. (Pearson,
supra, 38 Cal.App.5th at p. 118.)
The trial court here was aware that it had the discretion to strike the
enhancement under section 12022.53(d) and to impose one of the lesser
enhancements instead. In exercising its discretion, the court balanced the

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contextual factors of the offense, including Millbrook’s age at the time. The
court did not abuse its discretion because its decision was not arbitrary or
irrational.
B. The Trial Court Was Aware of Its Discretion to Strike the
Section 12022.5(a) Enhancement, and We Presume the Trial
Court Performed Its Duty.
Millbrook also claims that the trial court abused its discretion in not
striking the section 12022.5(a) enhancement on the assault conviction on
Galvan. He contends that the court was unaware of its discretion to strike
that enhancement as well. Again, we are not persuaded.
As we have said, Millbrook was convicted of assault with a firearm on
Manoa and Galvan, and the jury found true section 12022.5(a) firearm
enhancements on both charges. An enhancement under section 12022.5(a)
adds an additional and consecutive term of imprisonment for 3, 4, or 10 years
for personally using a firearm in the commission of a felony or attempted
felony.8 Millbrook’s sentence included a consecutive term of one year, four
months for the use of a firearm during the assault on Galvan, which is the
only section 12022.5(a) enhancement challenged in this appeal. Senate Bill
No. 620 gave trial courts discretion to strike section 12022.5(a) enhancements
in the interest of justice. (People v. Baltazar (2020) 57 Cal.App.5th 334, 337;
§ 12022.5, subd. (c).)
An abuse of discretion can occur “where the trial court was not ‘aware
of its discretion.’ ” (Carmony, supra, 33 Cal.4th at p. 378.) Where the record
is silent, however, there is a presumption that the court correctly applied the
law. (People v. Bolian (2014) 231 Cal.App.4th 1415, 1422; People v. Gillispie

8 A section 12022.5(a) firearm enhancement can be imposed on a
conviction of assault with a firearm even though the use of the firearm is an
element of that offense. (People v. Scott (2001) 91 Cal.App.4th 1197, 1212.)

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(1997) 60 Cal.App.4th 429, 434; see Evid. Code, § 664 [“It is presumed that
official duty has been regularly performed”].) This principle applies to
statutory discretion at sentencing. “[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 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.)
True enough, the hearing here focused on the more consequential
section 12022.53(d) enhancement, and neither the trial court nor counsel
explicitly discussed exercising discretion to strike the section 12022.5(a)
enhancements. But this court’s disposition in Millbrook II was clear in
directing the trial court to determine whether to strike not only the
section 12022.53(d) enhancement but also the section 12022.5(a)
enhancements, and we see no reason to assume the trial court failed to heed
these directions. During the hearing, the court referenced, albeit indirectly,
the section 12202.5(a) enhancement when it stated, “[A]m I going to exercise
[the discretion] now and take some action with respect to the 12022.53
enhancement or enhancements that were found to be true by the jury.”
In light of this record, we must presume the trial court understood its
discretion and properly performed its duty. In arguing otherwise, Millbrook
cites People v. Lua (2017) 10 Cal.App.5th 1004, which involved a trial court’s
discretion under section 1385. We do not find Lua helpful. In that case, the
record was ambiguous as to whether the trial court understood the scope of
its discretion to strike certain drug-related enhancements. (Lua, at p. 1020.)
Specifically, the trial court may have characterized 17 years as “ ‘the lowest
sentence possible’ ” even though striking the enhancements would result in a
sentence of less than 17 years. (Id. at p. 1012.) Due to this ambiguity, the

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case was remanded for resentencing. (Id. at p. 1022.) The record here,
however, contains no such ambiguity or suggestion that the trial court
believed it was unable to strike the section 12022.5(a) enhancements. In
these circumstances, we assume the court performed its duty as directed by
Millbrook II, and no remand is required.
III.
DISPOSITION
The judgment is affirmed.

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Banke, J.

_________________________
Sanchez, J.

People v. Millbrook A160684

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