Filed 4/29/22 P. v. Sims CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093534
Plaintiff and Respondent, (Super. Ct. No. 13F02391)
v.
RICKY SIMS,
Defendant and Appellant.
A jury convicted defendant Ricky Sims of attempted murder and criminal threats,
and found true several enhancements. The trial court sentenced defendant to a
determinate term of 46 years in prison, with 10 of those years being from two serious
felony conviction enhancements, and an indeterminate term of 14 years to life. In the
second of two prior appeals, this court remanded for the trial court to consider its
discretion to dismiss the prior serious felony conviction enhancement allegations and to
amend and correct the abstract of judgment. On remand, the trial court declined to
dismiss those enhancements, but did not amend and correct the abstract.
In this third appeal, defendant now contends (1) the trial court abused its discretion
by failing to consider his age in declining to dismiss those enhancements, and (2) the
abstract of judgment should be amended. The People agree the abstract should be
amended. Finding that the trial court did not abuse its discretion in declining to dismiss
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the enhancements, we will affirm the judgment but once again direct the trial court to
amend and correct the abstract of judgment.
BACKGROUND
In April 2013, defendant fired three shots at his niece’s boyfriend (a member of a
rival gang), striking the boyfriend in the arm.
The jury found defendant guilty of attempted murder (Pen. Code, §§ 664, 187,
subd. (a))1 and making criminal threats (§ 422), also finding true enhancement
allegations that defendant personally used and personally discharged a firearm
(§ 12022.53, subds. (b), (c)) and that the crime was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)). In addition, the trial court also found true
an allegation that defendant had a prior serious felony conviction. (§ 667, subd. (a).)
The trial court sentenced defendant to seven years to life for the attempted murder,
doubled for the prior strike conviction; 20 years for the firearm enhancement; 10 years
for the gang enhancement; three years for the criminal threats conviction, doubled for the
prior strike; and a five-year term on each conviction for the prior serious felony
enhancement.
In the first appeal, this court reversed the gang enhancement because there was no
substantial evidence that a primary activity of defendant’s gang was any of the
enumerated offenses in section 186.22, subdivision (e). (People v. Sims (Mar. 16, 2018,
C074948) [nonpub. opn.] [pp. 14-15].) This court also modified the judgment to award
24 days of presentence conduct credit. This court remanded the matter to permit the trial
court to exercise its newly granted discretion whether to dismiss the firearm
enhancement, and directed the trial court to amend and correct the abstract of judgment to
reflect the judgment as modified and as orally imposed. (Id. [p. 25].)
1 Undesignated statutory references are to the Penal Code.
2
On remand, the trial court declined to dismiss the firearm enhancement, but it did
not amend or correct the abstract of judgment to reflect the judgment as modified or
orally imposed. In a second appeal, this court again directed the trial court to amend and
correct the abstract of judgment to eliminate the gang enhancement, to include the
modified presentence credit, and to reflect the judgment as orally imposed. (People v.
Sims (Feb. 19, 2020, C088395] [nonpub. opn.].) In addition, this court remanded to
allow the trial court to exercise its newly granted discretion regarding whether to dismiss
the five-year prior serious felony enhancements, and also to allow a determination of
whether defendant had the ability to pay the imposed fines and fees. (Id. [pp. 4-6].)
At a trial court hearing on January 15, 2021, defense counsel noted, in support of
dismissing the prior serious felony enhancements, that defendant was “approximately 49
years old” at the time of the crime, so if he ever leaves prison he will be very old, even
without the two five-year enhancements. The trial declined to dismiss the enhancements,
stating: “[G]iven the nature of this particular crime, its gang motivations, the criminal
history of the [d]efendant, and its significance, the numerous shots that were fired at the
victim, the completely unjustifiable basis for this crime occurring, almost nonsensical,
except in a gang context, the Court, understanding its ability to strike the 5-year priors,
declines to do so, believing it was overall an appropriate enhancement that should have
been given in this case.” Defendant then asked about the gang enhancement that had
been reversed in the first appeal, and the trial court said that had already been stricken
and took no further action.
DISCUSSION
I
Defendant argues the trial court abused its discretion in denying his request to
dismiss the prior serious felony conviction enhancements. He asserts trial courts must
consider both the nature of the offense and the offender, so remand is required because
the trial court did not consider defendant’s age, and that the elimination of even one of
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the five-year enhancements would still result in a lengthy sentence, guaranteeing he
would be in prison until he is an “old man.”
Section 667, subdivision (a) mandates that for each serious felony a defendant
“shall receive . . . a five-year enhancement for each such prior conviction on charges
brought and tried separately.” (§ 667, subd. (a)(1).) A sentencing court, however, may
dismiss a serious felony enhancement “in the furtherance of justice.” (§ 1385,
subd. (b)(1); see People v. Gonzalez (2019) 39 Cal.App.5th 115, 123.) “We review a
court’s decision to deny a motion to strike a five-year prior serious felony enhancement
for an abuse of discretion. No error occurs if the trial court evaluates all relevant
circumstances to ensure that the punishment fits the offense and the offender.” (People v.
Shaw (2020) 56 Cal.App.5th 582, 587.)
We find no abuse of discretion here. As the trial court noted, defendant’s crime
was serious. He fired multiple shots at the victim as he tried to flee, hitting him in the
arm, and the motivation for the crime was the victim’s actual or perceived gang
affiliation.
The trial court also considered the offender, referencing defendant’s criminal
history. Although the trial court did not specifically mention defendant’s age, there is no
requirement that it expressly mention every characteristic, as long as it considers the
relevant circumstances. Defendant’s counsel referenced defendant’s age in arguing for
dismissal. Under the circumstances, we presume the trial court considered the argument
in making its decision. (People v. Brugman (2021) 62 Cal.App.5th 608, 638 [“In the
absence of evidence to the contrary, we presume that the trial court considered all of the
relevant factors and properly applied the law”].)
II
Defendant also asks us to direct the trial court to amend and correct the abstract of
judgment to reflect the judgment as modified and as orally imposed. The People agree.
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The judgment as orally imposed and as modified is still not reflected on
defendant’s abstract of judgment, despite this court’s directives in the first and second
appeals. The abstract of judgment still shows the 10-year gang enhancement and does
not include the 24 days of presentence conduct credit. It also still lists the attempted
murder sentence as seven years to life and the criminal threats sentence as three years
even though both were doubled for the prior strike conviction.
We again direct the trial court to amend and correct the abstract of judgment to
reflect the judgment as orally imposed and modified.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended
and corrected abstract of judgment reflecting the following: remove reference to the 10-
year gang enhancement (§ 186.22, subd. (b)(1)(c)); provide for 24 days of presentence
conduct credit; indicate that the sentence on the attempted murder conviction (§§ 664,
187, subd. (a) -- count one) is 14 years to life; and indicate that the sentence on the
criminal threats conviction (§ 422 -- count three) is six years. The trial court shall
forward a certified copy of the amended and corrected abstract of judgment to the
Department of Corrections and Rehabilitation.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
RENNER, J.
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