Filed 11/10/21 P. v. Torres CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075901
v. (Super.Ct.No. FVI1101609)
DAVID JERRY TORRES, OPINION
Plaintiff and Respondent.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed; remanded with directions.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and
Respondent.
1
This is defendant and appellant David Jerry Torres’s second appeal. He appeals
after the trial court declined to exercise its discretion under Penal Code1
section 12022.53, subdivision (h), to strike his firearm enhancement. On appeal,
defendant argues the matter should be remanded again because the sentencing court
failed to orally pronounce the sentence during the resentencing hearing and also because
the court did not understand its discretion to impose a lesser included firearm
enhancement. We agree that the matter must be remanded for the court to orally
pronounce sentence but disagree that the court has discretion to impose a lesser
uncharged firearm enhancement.
I
FACTUAL AND PROCEDURAL HISTORY
On March 10, 2017, a jury found defendant guilty of murder (§187, subd. (a)) and
also found true the firearm enhancement that defendant personally and intentionally
discharged a firearm causing death (§ 12022.53, subd. (d)). The trial court sentenced
defendant to state prison for 40 years to life: 15 years to life on the murder conviction
and a consecutive 25 years to life for the firearm enhancement.
On December 3, 2018, this court affirmed the judgment, but ordered the matter
remanded for resentencing on the firearm enhancement. We explained “[t]he sentence is
vacated and the matter is remanded for resentencing to allow the trial court to exercise its
1 All future statutory references are to the Penal Code unless otherwise stated.
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discretion as to whether the firearm enhancement under section 12022.53,
subdivision (d), should be stricken pursuant to section 1385.”
On July 26, 2019, the People filed a sentencing memorandum asserting that the
firearm enhancement should not be stricken. On that same day, the sentencing court
declined to exercise its discretion to strike the 25-year-to-life firearm enhancement.
Specifically, the court stated, “[t]he Court believes that this is not a case that justifies
striking and exercising my discretion to strike the 25-year enhancement, so that petition
to do so is denied[,]” and “[f]or the record, I should indicate that I think that it was
proven that Mr. Torres was indeed the actual person who did the killing⸺was the person
who personally discharged the firearm.” The court, however, did not explicitly
resentence defendant after refusing to exercise its discretion to strike the firearm
enhancement. Defendant appeals.
II
DISCUSSION
Defendant contends the matter should be remanded for resentencing because the
trial court failed to orally pronounce the sentence and did not understand its discretion to
impose a lesser included firearm enhancement. He explains that because the prior
sentence had been vacated, the trial court was required to pronounce a new sentence and
its failure to do so was unauthorized.
The People argue the trial court clearly indicated it was declining to exercise its
discretion to strike the firearm enhancement without altering the original sentence and
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that even if the court “should have orally pronounced the same sentence originally
imposed at that juncture, remand is unnecessary as it is not reasonably probable that the
court would impose a sentence any different than the sentence originally imposed.”
A. Remand to Orally Pronounce Sentence
“In a criminal case, judgment is rendered when the trial court orally pronounces
sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9; People v. Mesa (1975)
14 Cal.3d 466, 471.) “After conviction of a felony and where probation is denied, the
court must pronounce judgment upon the defendant by imposing a fine or a sentence of
imprisonment. [Citations.] [¶] Judgment must be pronounced orally in the presence of
the defendant, and it must reflect the court’s determination of the matter before it.
[Citation.] [¶] The pronouncement of judgment is a judicial act [citation], and is to be
distinguished from the ministerial act of entering the judgment as pronounced in the
minutes or records of the court. [Citation.]” (People v. Hartsell (1973) 34 Cal.App.3d 8,
13, disapproved on another point in People v. Karaman, at p. 345, fn. 11.)
“In a case where the court fails to pronounce judgment with respect to counts on
which convictions were validly obtained, the Court of Appeal has power to remand for
the purpose of pronouncement of a judgment in accordance with the verdict. [Citation.]
When such a mistake is discovered while defendant’s appeal is pending, the appellate
court should affirm the conviction and remand the case for a proper sentence.
[Citation.]” (People v. Taylor (1971) 15 Cal.App.3d 349, 353.)
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Although it is not reasonably probable the sentencing court would impose a
sentence any different than the sentence originally imposed if the matter were remanded,
defendant has to be sentenced properly. Once the prior sentence had been vacated by this
court, the sentencing court was under a mandatory duty to pronounce judgment upon
him. (Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 723-724.) Furthermore,
defendant has a right to be present when the sentencing court orally pronounces sentence.
This right “‘extends to the imposition of a new sentencing package after an original
sentencing package is vacated in its entirety on appeal and the case is remanded for
resentencing. [Citation.]’” (In re Guiomar (2016) 5 Cal.App.5th 265, 278; see People v.
Rodriguez (1998) 17 Cal.4th 253, 260 [defendant has a right to be present following
limited remand for a section 1385 hearing to strike prior convictions], superseded by
statute on other grounds as noted in People v. James (2001) 91 Cal.App.4th 1147, 1149;
People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414, 1417 [resentencing on count
previously stayed required presence of defendant].)
Accordingly, we find the matter must be remanded for the sentencing court to
orally pronounce sentence.
B. Discretion to Impose Lesser Firearm Enhancement
Relying on People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), defendant
also contends the matter should be remanded for resentencing because the trial court did
not understand the scope of its sentencing discretion to impose a lesser included
uncharged firearm enhancement. We disagree.
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Section 12022.53, subdivision (h), provides in part: “The 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.” In turn, section 1385,
subdivision (a), states that a judge may, “in [the] furtherance of justice, order an action to
be dismissed.” Where the court has the authority to strike or dismiss an enhancement,
“the court may instead strike the additional punishment for that enhancement . . . .”
(§ 1385, subd. (b)(1).)
“Section 12022.53 provides three different sentence enhancements for the personal
use of a firearm in the commission of enumerated offenses: a 10-year enhancement for
the personal use of a firearm [citation]; a 20-year enhancement for the personal and
intentional discharge of a firearm [citation]; and a 25-year-to-life enhancement for the
personal and intentional discharge of a firearm causing great bodily injury or death
[citation]. Recently, the Legislature amended the statute to include the following: ‘The
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.’ [Citation.]” (People v. Yanez (2020) 44 Cal.App.5th 452, 458 (Yanez), review
granted Apr. 22, 2020, S260819.) The court in Morrison, supra, 34 Cal.App.5th 217,
held that the amended statute provided authority for the court to strike an enhancement
under section 12022.53, subdivision (d), and impose an uncharged enhancement under
section 12022.53, subdivision (b) or (c). (Morrison, at pp. 222-223.)
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The court in People v. Tirado (2019) 38 Cal.App.5th 637, review granted
November 13, 2019, S257658, disagreed with the court in Morrison, noting that
“[n]othing in the plain language of sections 1385 or 12022.53, subdivision (h) authorizes
a trial court to substitute one enhancement for another.” (Tirado, at p. 643.) Thereafter,
this court in Yanez, supra, 44 Cal.App.5th 452, agreed with the court in Tirado. (Yanez,
at p. 458.) In doing so, the panel disagreed with Morrison and held that section 12022.53
“does not afford any” discretion to impose a lesser firearm enhancement, and declined
“to remand the matter for resentencing on the ground that the trial court has newly
granted discretion to impose a lesser, uncharged enhancement.” (Yanez, at pp. 458, 460.)
This court explained, “under a plain reading, the Legislature’s use of the words ‘strike’ or
‘dismiss’ indicates the court’s power pursuant to these sections is binary. [Citation.]”
(Yanez, at p. 459.) This court additionally “decline[d] to adopt an interpretation of
section 12022.53, subdivision (h) which would vest the trial court with discretionary
power to essentially modify a charge brought by the prosecutor despite sufficient
evidence to support such a charge.” (Id. at p. 460.)
Most recently, the court in People v. Garcia (2020) 46 Cal.App.5th 786,
review granted June 10, 2020, S261772, also agreed with the court in Tirado “that
section 12022.53, subdivision (h) does not grant a trial court the discretion to substitute
lesser included firearm enhancements, at least where the greater enhancement is legally
and factually valid.” (Garcia, at pp. 790-791.) The court posited three reasons for
reaching that conclusion. First, the plain language of the statute was unambiguous,
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granting courts discretion solely to strike or dismiss a firearm enhancement. (Id. at
p. 791.) Second, the separation of powers vested the executive branch with the exclusive
power to choose which enhancements to charge. (Id. at pp. 791-792.) Third, where
substantial evidence did not support instructing the jury on lesser included enhancements,
the court could not substitute a lesser included enhancement. (Id. at p. 792.)
We agree with the reasoning and holdings in Tirado, Yanez, and Garcia. Thus,
since defendant does not challenge the sufficiency of the evidence to support the
section 12022.53, subdivision (d) enhancement, and the sentencing court expressly
indicated the evidence supported it, the court is without authority to reduce the
enhancement to a lesser uncharged firearm enhancement.
III
DISPOSITION
The conviction is affirmed. The matter is remanded for pronouncement of
sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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