Filed 6/3/22 P. v. Woods CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C087859
Plaintiff and Respondent, (Super. Ct. No. 14F00551)
v. OPINION ON TRANSFER
MONTRELL WOODS,
Defendant and Appellant.
This case returns to us following remand to the trial court to exercise its discretion
as to whether to strike defendant Montrell Woods’s firearm enhancement under Penal
Code1 section 12022.53, subdivision (d) pursuant to the trial court’s authority under
Senate Bill No. 620 (2017-2018 Reg. Sess.) and the associated amendment to section
12022.53, subdivision (h), effective January 1, 2018. (People v. Woods (2018) 19
Cal.App.5th 1080, 1090-1091.) Section 12022.53, subdivision (h) gives trial courts
discretion to “strike or dismiss” a section 12022.53 enhancement “in the interest of
justice pursuant to [s]ection 1385 and at the time of sentencing . . . .”
1 All further section references are to the Penal Code unless otherwise specified.
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At resentencing, the trial court declined to strike the enhancement. Defendant
contends the trial court abused its discretion in two ways: (1) in failing to recognize its
discretion to impose a lesser firearm enhancement in lieu of the 25-years-to-life
enhancement under section 12022.53, subdivision (d) in the interests of justice, as stated
in People v. Morrison (2019) 34 Cal.App.5th 217; and (2) based on a serious mistake of
law and fact regarding the impact of the enhancement on the timing of defendant’s first
youthful offender parole hearing. We reverse.
In an unpublished opinion, we initially affirmed and agreed with People v. Tirado
(2019) 38 Cal.App.5th 637 that, in considering whether to strike the section 12022.53,
subdivision (d) enhancement, the trial court did not have discretion to impose a lesser
firearm enhancement under section 12022.53, subdivisions (b) and (c). (People v. Woods
(Jan. 10, 2020, C087859) [nonpub. opn.].) Thereafter, our Supreme Court issued People
v. Tirado (2022) 12 Cal.5th 688, reversing the foregoing Tirado opinion and agreeing
with Morrison, concluding, “[w]hen an accusatory pleading alleges and the jury finds
true the facts supporting a section 12022.53(d) enhancement, and the court determines
that the section 12022.53(d) enhancement should be struck or dismissed . . . the court
may . . . impose an enhancement under section 12022.53(b) or (c).” (Tirado, 12 Cal.5th
at pp. 697, 700.) Our Supreme Court then transferred this matter back to us with
directions to vacate our prior unpublished decision and reconsider the cause in light of its
opinion. The parties filed no supplemental briefs following transfer.
Having reconsidered the matter, we reverse the judgment and remand for
resentencing. Because we conclude the trial court misunderstood the scope of its
discretion to impose a lesser firearm enhancement, we do not reach defendant’s
secondary argument that the trial court made a serious mistake of law and fact regarding
the impact of the enhancement on the timing of defendant’s first youthful offender parole
hearing.
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FACTUAL AND PROCEDURAL BACKGROUND
Due to the limited issues on appeal, we do not discuss the background facts of the
case at length. Suffice it to say defendant “shot Kenny Hernandez to death during a
confrontation between the two men at an apartment complex.” (People v. Woods, supra,
19 Cal.App.5th at p. 1082.) Defendant was charged with murder and being a felon in
possession of a firearm. It was further alleged he used, and intentionally and personally
discharged a firearm, and thereby proximately caused great bodily injury or death under
section 12022.53, subdivisions (b), (c), and (d). With regard to the enhancement, the jury
was instructed to consider only whether the allegation was true under section 12022.53,
subdivision (d).
The jury found defendant guilty of second degree murder and being a felon in
possession of a firearm. The jury further found true the enhancement under
section 12022.53, subdivision (d).
We affirmed the judgment on appeal but remanded the case to the trial court to
exercise its discretion as to whether to strike the firearm enhancement, as provided in
section 1385 and the amendment to section 12022.53, subdivision (h) under Senate Bill
No. 620. (People v. Woods, supra, 19 Cal.App.5th at pp. 1090-1091.)
Prior to the resentencing hearing, the trial judge requested the following
information from the California Department of Corrections and Rehabilitation (the
department): (1) defendant’s “activity/status in prison since his original sentencing”;
(2) “factors in mitigation/aggravation applicable to whether to dismiss the 25-years-to-
life firearm enhancement” and the department’s reasons for recommending the
enhancement be imposed; and (3) when defendant would be eligible for parole review
under section 3051 for youthful offenders if the enhancement was not imposed. As to the
last question, the department responded that defendant would be eligible for parole
review under section 3051, subdivision (b)(2) for youthful offenders during his 20th year
of incarceration if the enhancement was not imposed.
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At the resentencing hearing, prior to the parties’ arguments, the trial judge said: “I
would just observe unfortunately, I would characterize it, the court’s decision is all or
nothing. This is either an additional term of 25 years to life or no enhancement.” The
judge discussed the factors in mitigation, including defendant’s developmental
disabilities, and that he had been discipline free, participated in programs, and worked
during incarceration. The judge then said: “I’m nevertheless not striking the
enhancement.” He explained: “I do not find it in the interest of justice to strike the
enhancement because of the nature of the crime and, the court’s view, having listened to
the evidence at trial that possession of a firearm was central to this murder.”
The decision was more complex than a “but for” analysis, the judge said.
“[Defendant] was on probation at the time. He had a felony conviction. He was not
supposed to have any firearms or ammunition on him. [The judge] just d[id]n’t think this
encounter that started off as just the rough-and-tumble encounters of life would have
escalated into a confrontation and a shooting had [defendant] not been carrying the
firearm.” After reviewing and discussing the facts of the case, the judge reiterated: “I
just don’t think this would have led to a shooting had [defendant] not been carrying a gun
in violation of law and his conditions on probation.” “So based on that, [the] tentative
decision w[as] to reimpose the same sentence that was imposed before.”
The judge gave counsel an opportunity to argue their positions. When the
prosecutor said, “[s]o in essence, the 15 to life or 40 to life, the 40 to life doesn’t mean
anything because of the automatic parole reviews that juveniles now get,” defense
counsel responded: “My understanding is that there is a separate procedure for
somebody who committed an offense as a juvenile. When this occurred, [defendant] was
not a juvenile, so he would not be avail [sic] of the same things that a juvenile offender
would be.” The judge responded: “Under Penal Code section 3051[, subdivision] (b)(3),
as I read it, he would be eligible for parole review after 25 years, regardless of the
sentence that I impose. Is that your reading, [prosecutor]?” The prosecutor said, “[y]es.”
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The judge continued: “So you’re right. He’s not a juvenile, but the Legislature has also
viewed younger offender older than juveniles.” Defense counsel said: “There’s also
another one for juveniles and that’s what -- I was confusing that.” The judge responded:
“My understanding is [defendant] would be eligible for parole review 25 years into his
sentence.” Defense counsel did not disagree with the trial court’s statement.
The court sentenced defendant to 15 years to life for the murder and to a
consecutive term of 25 years to life for the firearm enhancement found true under
section 12022.53, subdivision (d).
Defendant appeals.
DISCUSSION
Defendant contends the trial court misunderstood the scope of its discretion and
requests that we remand for the trial court to consider whether to substitute a lesser
enhancement under section 12022.53, subdivisions (b) or (c) for the greater enhancement
under subdivision (d) of the statute. We agree.
In Tirado, our Supreme Court explained the “statutory framework” of
section 12022.53, as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.), provides
trial courts with the discretion to strike a firearm enhancement found true by the jury and
to impose a lesser uncharged statutory enhancement instead. (People v. Tirado, supra, 12
Cal.5th at p. 692.) “To summarize: When an accusatory pleading alleges and the jury
finds true the facts supporting a section 12022.53(d) enhancement, and the court
determines that the section 12022.53(d) enhancement should be struck or dismissed
under section 12022.53(h), the court may, under section 12022.53(j), impose an
enhancement under section 12022.53(b) or (c).” (Tirado, at p. 700.) “[T]he Legislature
has permitted courts to impose the penalties under section 12022.53(b), (c), or (d) so long
as the existence of facts required by the relevant subdivision has been alleged and found
true.” (Tirado, at p. 702.)
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“ ‘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.) “Relief from a trial court’s misunderstanding of its sentencing discretion is
available on direct appeal when such misapprehension is affirmatively demonstrated by
the record.” (People v. Leon (2016) 243 Cal.App.4th 1003, 1026.)
Here, the record affirmatively demonstrates the trial court’s misapprehension. The
trial court expressly stated it “unfortunately” had to impose “all or nothing,” meaning “an
additional term of 25 years to life or no enhancement.” We thus cannot conclude the trial
court would have reached the same decision had it been aware of its discretion to impose
a section 12022.53, subdivision (b) or (c) firearm enhancement, and remand the matter
again for the trial court to decide whether to exercise its discretion pursuant
to section 1385 as to the section 12022.53, subdivision (d) enhancement, as set forth
in our Supreme Court’s Tirado decision.
In light of remanding the matter, we need not and do not address defendant’s
secondary argument the trial court made a serious mistake of law and fact regarding the
impact of the enhancement on the timing of defendant’s first youthful offender parole
hearing.
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DISPOSITION
The judgment is reversed as to defendant’s sentence and the matter remanded for
resentencing.
/s/
Robie, Acting P. J.
We concur:
/s/
Mauro, J.
/s/
Renner, J.
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