Filed 5/20/22 P. v. Gonzalez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B314809
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA072383)
v.
JOVANNY GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kathleen Blanchard, Judge. Affirmed and
remanded with instructions.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Michael R. Johnsen and Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant, Jovanny Gonzalez, a member of the Midtown
Criminals, and his fellow gang member shot and killed a rival
gang member, Armando Reyes. (People v. Gonzalez (Apr. 10,
2020, B296206) [nonpub. opn.] (Gonzalez) at pp. 3, 6.) In a tape-
recorded conversation with an informant, Gonzalez said, “ ‘[W]e
smoked him’ ” and confirmed Gonzalez himself was the shooter.
(Id. at p. 9.) Gonzalez indicated he did not shoot Reyes’s
girlfriend, who was at the scene, because his “ ‘bullets were
empty.’ ” (Ibid.)
This is defendant’s second appeal. In the first appeal, we
reversed the conviction for the attempted murder of Reyes’s
girlfriend. We affirmed Gonzalez’s numerous other convictions,
including the conviction for the first degree murder of Reyes.
Following remand, the People elected not to retry defendant on
the second degree murder charge, and the trial court resentenced
defendant.
In the current appeal, defendant argues when the trial
court resentenced him and imposed a Penal Code1
section 12022.53, subdivision (d) firearm enhancement, the trial
court did not understand it had discretion to impose an
uncharged firearm enhancement under section 12022.53,
subdivision (b) or (c). Defendant argues we must remand the
matter the trial court to exercise that discretion. Following
People v. McDavid (2022) 77 Cal.App.5th 763 (McDavid), we
conclude defendant is entitled to retroactive application of the
Supreme Court’s opinion in People v. Tirado (2022) 12 Cal.5th
688 (Tirado), which held that a trial court has discretion to
impose a lesser uncharged firearm enhancement. We remand the
1 Undesignated statutory citations are to the Penal Code.
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case for the trial court to exercise its discretion to determine
whether to impose a lesser firearm enhancement and otherwise
affirm.
BACKGROUND
The jury convicted defendant of the first degree murder of
Reyes and found true the gang enhancement and the allegation
that Gonzalez personally and intentionally discharged a firearm
within the meaning of section 12022.53, subdivision (d). The jury
also found true the allegation that a principal personally and
intentionally discharged a firearm within the meaning of section
12022.53, subdivisions (d) and (e)(1).
The jury convicted defendant of the attempted murder of
Reyes’s girlfriend and found true several enhancements attached
to that charge.
The jury found Gonzalez guilty of shooting at an occupied
vehicle and found as true the gang allegation on that count. The
jury also found defendant personally and intentionally
discharged a firearm within the meaning of section 12022.53,
subdivision (d) and a principal personally and intentionally
discharged a firearm within the meaning of section 12022.5,
subdivisions (d) and (e)(1). “[T]he jury found Gonzalez guilty of
two counts of possession of a firearm by a felon, for one of which a
gang allegation was found true, and of two counts of unlawful
possession of ammunition; only one count included a gang
allegation, which the jury found true.” (Gonzalez, supra,
B296206.)
“Gonzalez admitted that he suffered a prior conviction for
robbery. He also admitted that it was a serious and violent
felony, and that it qualified under sections 667, subdivision (a)
and 667.5, subdivision (b).” (Gonzalez, supra, B296206.)
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At the original sentencing hearing, the trial court found it
was not in the interest of justice to strike the prior strike
allegation. The court explained: “At age 15, he had a sustained
petition for robbery. At age 15, he had a sustained petition for
burglary. He suffered the adult conviction for robbery.” The
court continued: “He was paroled on February 26th of 2016.
Three months after being discharged from that parole, he picked
up a misdemeanor domestic violence offense. And then . . . this
offense.” The court emphasized that defendant was the actual
shooter in this case.
The trial court further explained: “There’s nothing in the
facts of this case, which involves Mr. Gonzalez as the actual
shooter, and all of the things that led up to it, as well as his
criminal history which would make the court believe that it
would be in the interest of justice to strike any of those charges.”
The court sentenced Gonzalez to an indeterminate term of 100
years to life and a determinate term of 30 years 4 months.
In April 2020, this court reversed the attempted murder
conviction and remanded the case to the trial court for a possible
retrial and resentencing. The People elected not to retry the
attempted murder.
The trial court resentenced defendant on August 27, 2021.
For the murder conviction, the court sentenced defendant to 80
years to life consisting of a 25-year-to-life term doubled pursuant
to section 667, subdivisions (b)–(j) and 25 years to life for the
section 12022.53, subdivision (d) firearm enhancement and five
years for the section 667, subdivision (a) enhancement. The court
struck the gang enhancement and the section 12022.53,
subdivision (e) enhancement.
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For possession of a firearm by a felon (on a date different
from the murder), the trial court sentenced defendant to the
upper term of three years doubled pursuant to section 667,
subdivisions (b)–(j). The court stayed its sentence pursuant to
section 654 on the remaining counts.
At the resentencing hearing, defense counsel asked the
court to strike the section 667, subdivision (a) enhancement. The
court indicated, “[I]f you want to be heard on why it would be in
the interest of justice, I’ll certainly hear you.” Defense counsel
stated, “Your Honor, I’m just going to make the motion and
submit it.”
The court explained: “I heard the evidence in this case,
including the actions of Mr. Gonzalez, who . . . was the actual
shooter, who I would describe as someone who very deliberately
targeted a rival gang member . . . .” The court continued: “He
has a history in the adult and juvenile system . . . . He basically
[has] chosen this life style, and repeatedly committed these
crimes . . . .” The court indicated, “I don’t believe I can make a
finding that it would be in the interest of justice to strike that
667(a) allegation, so I am going to reimpose that 5-years.”
Defendant timely appealed.
DISCUSSION
On appeal, defendant argues that the court did not
understand it had discretion to impose a 20-year enhancement
(§ 12022.53, subd. (c)) or a 10-year enhancement (id., subd. (b))
instead of the 25-year-term imposed pursuant to
section 12022.53, subdivision (d). Defendant argues that the case
should be remanded to the trial court to permit the trial court to
exercise its discretion. The Attorney General argues the claim is
forfeited, the record does not affirmatively show the trial court
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misunderstood its discretion, and defendant did not suffer
prejudice from the alleged error. We disagree.
As amended in 2018, section 12022.53, subdivision (h)
affords a trial court discretion to dismiss a personal gun use
enhancement. Section 12022.53, subdivision (h) provides: “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. The authority
provided by this subdivision applies to any resentencing that may
occur pursuant to any other law.”
Defendant’s resentencing hearing occurred in August 2021.
At that time, there was a split of appellate authority over
whether the power to strike or dismiss a section 12022.53,
subdivision (d) enhancement includes the power to reduce the
enhancement to a lesser included enhancement. People v.
Morrison (2019) 34 Cal.App.5th 217 held that a trial court could
strike a section 12022.53, subdivision (d) enhancement and
impose a lesser uncharged firearm enhancement. (Morrison,
at pp. 220, 223.) Morrison explained: “The [trial] court had the
discretion to impose an enhancement under section 12022.53,
subdivision (b) or (c) as a middle ground to a lifetime
enhancement under section 12022.53, subdivision (d), if such an
outcome was found to be in the interests of justice under
section 1385.” (Morrison, at p. 223.) This district reached the
opposite conclusion in People v. Garcia (2020) 46 Cal.App.5th
786, which on April 20, 2022, the Supreme Court ordered to be
vacated and depublished.
The Supreme Court resolved this split of authority in
January 2022, after defendant’s resentencing hearing. In Tirado,
supra, 12 Cal.5th 688, the high court held a trial court may
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“strike the section 12022.53(d) enhancement found true by the
jury and . . . impose a lesser uncharged statutory enhancement
instead. (Tirado, at p. 692.) The high court observed “Morrison
correctly described the scope of a trial court’s sentencing
discretion under section 12022.53.” (Tirado, at p. 697.)
Although the Attorney General correctly cites the general
rule that the failure to raise a discretionary sentencing issue in
the trial court forfeits that issue on appeal (People v. Sperling
(2017) 12 Cal.App.5th 1094, 1100–1101), the general rule is
inapplicable here. As McDavid explains, “because Tirado
resolved a split of authority among the Courts of Appeal . . . ,
Tirado applies retrospectively to [defendant’s] nonfinal judgment
and, therefore, remand for resentencing is required regardless of
any forfeiture.” (McDavid, supra, 77 Cal.App.5th at p. 772.)
Here, as in McDavid, defendant’s judgment was not final and he
is entitled to the retrospective application of Tirado. (McDavid,
at p. 772.)
The general presumption that the trial court applied the
correct law, also relied on by the Attorney General, does not
pertain here because “the law in question was unclear or
uncertain when the lower court acted ([citations]).” (People v.
Jeffers (1987) 43 Cal.3d 984, 1000.) The silent record thus
requires remand to the trial court to exercise its discretion
because the record does not demonstrate the trial court
anticipated the Tirado decision and understood the scope of its
discretion.
Although, as the Attorney General points out, the trial
court declined to strike other enhancements, the record does not
conclusively show whether the trial court would have nonetheless
imposed a lesser firearm enhancement. “Remand is required
7
unless the record reveals a clear indication that the trial court
would not have reduced the sentence even if at the time of
sentencing it had the discretion to do so. [Citation.] Without
such a clear indication of a trial court’s intent, remand is
required when the trial court is unaware of its sentencing
choices.” (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)
The record here contains no such clear indication of the trial
court’s intent.
We remand the case to the trial court to conduct another
resentencing hearing at which it shall exercise its discretion
whether or not to strike the section 12022.53 subdivision (d)
enhancement, and instead impose a lesser albeit uncharged
enhancement, “if the factual elements for those lesser included
enhancements were alleged in the information and found true by
the jury . . . .” (McDavid, supra, 77 Cal.App.5th at p. 775.) We
express no opinion on how the trial court should exercise its
discretion.
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DISPOSITION
The sentence imposed August 27, 2021 is vacated and the
case is remanded for the limited purpose of allowing the trial
court to exercise its discretion whether to strike the Penal Code
section 12022.53, subdivision (d) enhancement and impose a
lesser uncharged enhancement. In all other respects the
judgment is affirmed. If the court modifies its sentence, it shall
amend the abstract of judgment and forward a copy of the
amended abstract of judgment to the Department of Corrections
and Rehabilitation.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
MORI, J.*
* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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