Filed 6/6/22 P. v. Tuiono CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071886
v. (Super.Ct.No. RIF1800197)
SAMUEL TUIONO, OPINION ON TRANSFER
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed in part; reversed in part; and remanded with directions.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys
General, A. Natasha Cortina, Amanda E. Casillas, Arlene A. Sevidal and Junichi P.
Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Samuel Tuiono of attempted murder (Pen. Code, 1
§§ 664, 187, subd. (a), count 1) and robbery (Pen. Code, § 211, count 2), and found true
the firearm use enhancement attached to both offenses. (§§ 12022.53(d),2 1192.7,
subd. (c)(8).) The trial court sentenced him to a total term of 32 years to life in state
prison, including 25 years to life for the firearm use enhancement.3
Defendant appealed, arguing remand was necessary (1) to permit the court to
exercise its authority—under section 12022.53(h)—to strike the 25-year enhancement
under section 12022.53(d), and impose a lesser uncharged enhancement under either
section 12022.53(b) or section 12022.53(c), and (2) to give defendant the opportunity to
request a hearing on his ability to pay the various fines and fees imposed. Defendant
further argued there was a sentencing error in the abstract of judgment.
On March 25, 2020, we filed a nonpublished opinion rejecting his arguments and
affirming the judgment. The California Supreme Court granted review of our opinion;
issued People v. Tirado (2022) 12 Cal.5th 688, 692 (Tirado), which held that “the
statutory framework permits a court to strike the section 12022.53(d) enhancement found
true by the jury and to impose a lesser uncharged statutory enhancement instead”;
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 For clarity, we will omit “subdivision” when citing to section 12022.53, i.e.,
section 12022.53(d), 12022.53(h), etc.
3 Defendant’s sentence was as follows: count 1 (attempted murder), seven years,
plus a consecutive 25-year-to-life term for the gun use enhancement; count 2 (robbery),
five years, plus a consecutive 25-year-to-life term for the gun use enhancement, with the
total term on count 2 stayed. (§ 654.)
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vacated the March 25, 2020 opinion; and transferred this case back to us for
reconsideration in light of Tirado.
Following remand, the parties filed supplemental briefing. Defendant contends,
and the People concede, remand for a new sentencing hearing is necessary so the trial
court may consider whether to impose a lesser uncharged enhancement under
section 12022.53. (Tirado, supra, 12 Cal.5th at p. 692.) Defendant also contends, and
the People again concede, that the matter must be remanded for resentencing
(1) consistent with Assembly Bills No. 124 and 518 (2021-2022 Reg. Sess.), and Senate
Bill No. 567 (2021-2022 Reg. Sess.); and (2) to strike the various fees eliminated by the
passage of Assembly Bills No. 1869 (2019-2020 Reg. Sess.) and 177 (2021-2022 Reg.
Sess.). We agree and remand the matter to the trial court for resentencing. The judgment
of conviction is otherwise affirmed.
I. PROCEDURAL BACKGROUND AND FACTS
Defendant (born in Dec. 2000) responded to the victim’s online offer to sell a
backpack, agreeing to meet at a Riverside restaurant. On October 19, 2017, the victim,
his wife, and son arrived at the restaurant. While his family waited in the car, the victim
brought the backpack into the restaurant, where he saw two young men (later identified
as defendant and B.H.). The victim approached the young men and defendant suggested
they go outside. Once outside, defendant pointed a gun at the victim’s face and said,
“‘Look, Cuz, it’s a stick-up.’” Defendant and B.H. began walking away with the victim’s
backpack, without paying for it; however, the victim followed. When the victim got
close to defendant, he fired his gun, shooting the victim in the thigh.
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II. DISCUSSION
A. Remand of the Firearm Enhancement Sentence Is Warranted.
Section 12022.53 creates three firearm enhancements: (1) a 25-year enhancement
for “personally and intentionally discharg[ing] a firearm and proximately caus[ing] great
bodily injury” (§ 12022.53(d)); (2) a 20-year enhancement for “personally and
intentionally discharg[ing] a firearm” (but without proximately causing great bodily
injury) (§ 12022.53(c)); and (3) a 10-year enhancement for “personally us[ing] a firearm”
(§ 12022.53(b)). The trial court is vested with the discretion to “strike or dismiss an
enhancement” it was “otherwise required to . . . impose[]” “in the interest of justice
pursuant to Section 1385” (§ 12022.53(h)), and to impose any enhancement so long as
“the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the
accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact” (§ 12022.53, subd. (j)).
In Tirado, our Supreme Court held that a trial court that “determines that the
section 12202.53(d) enhancement should be struck or dismissed under section
12022.53(h) . . . may, under section 12022.53(j), impose an enhancement under section
12022.53(b) or (c),” “even if the lesser enhancements were not specifically charged . . . or
found true by the jury.” (Tirado, supra, 12 Cal.5th at pp. 696, 698.) Here, the trial court
rejected defendant’s request to exercise its discretion to strike or dismiss his firearm
enhancement under section 12022.53(d). Indeed, the court remarked that
section 12022.53(h) gives it the discretion to do so—either strike or dismiss the
enhancement—however, the court found that “it is not in the interest of justice to strike
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the allegation.” The People acknowledge that the court was unaware of its discretion to
dismiss the section 12022.53(d) enhancement, and replace it with an uncharged lesser
included enhancement under section 12022.53(b) or 12022.53(c). (People v. Gutierrez
(2014) 58 Cal.4th 1354, 1391 [A court that is unaware of the scope of its discretion
cannot exercise its discretion.].) They further concur that the appropriate remedy is to
remand “to give the sentencing court an opportunity to consider whether to impose a
lesser included firearm enhancement under section 12022.53.” We agree that remand is
required. (Tirado, at p. 702.)
B. Newly Enacted Sentencing Laws Apply on Remand.
While defendant’s appeal was pending, the Governor signed Assembly Bills
No. 124 and 518, and Senate Bill No. 567 into law, effective January 1, 2022. Among
other things, Assembly Bill No. 124 establishes a presumption that the trial court will
impose the lower term under specified circumstances, including, as relevant here, when a
defendant was under 26 years of age at the time of the offense and that was a contributing
factor in the commission of the offense. (§ 1170, subd. (b)(6)(B), added by Stats. 2021,
ch. 695, § 5.) Senate Bill No. 567, among other things, generally limits the trial court’s
ability to impose the upper term unless aggravating circumstances have been stipulated to
by the defendant or found true beyond a reasonable doubt by a jury or by the court in a
court trial. (§ 1170, subd. (b)(1), (2), added by Stats. 2021, ch. 731, § 1.3.) Assembly
Bill No. 518, provides the trial court with the discretion to choose which sentence to
impose when a defendant has been convicted under two different Penal Code provisions
for the same act. (§ 654, subd. (a); see Stats. 2021, ch. 441, § 1.)
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The parties agree the trial court is required to apply all newly enacted sentencing
laws on remand. We concur.
C. Discrepancies Between the Abstract of Judgment and Oral Pronouncement
of Sentence.
In their original briefing, defendant contended, and the People agreed, the abstract
of judgment requires correction because it does not reflect the trial court’s oral
pronouncement with respect to certain fines and fees. As the matter is being remanded
for resentencing, we conclude this issue is moot.
D. Imposition of Fines, Fees, and Assessments.
In his original briefing, defendant asserted that under the reasoning in People v.
Dueñas (2019) 30 Cal.App.5th 1157, 1168, the imposition of a $60 conviction
assessment/court facility fee (Gov. Code, § 70373), an $80 court operations
assessment/fee (Pen. Code, § 1465.8), and a $300 restitution fine (Pen. Code, § 1202.4)
without a determination of ability to pay violated his rights under the due process, equal
protection, and excessive fines clauses of the federal and California constitutions. Since
the matter is being remanded to the trial court for resentencing, defendant may request an
ability to pay hearing on his various fines and fees.
In supplemental briefing, the parties agree that the $514.58 booking fee (former
Gov. Code, § 29550) and $1,500 presentence incarceration cost fee (former Pen. Code,
§ 1203.1c) must be vacated because the passage of Assembly Bills No. 1869 and 177
eliminated them.
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Effective July 1, 2021, Assembly Bill No. 1869 eliminated a trial court’s authority
to impose a booking fee pursuant to former Government Code section 29550, as well as
the ability to collect unpaid balances on amounts previously imposed. (Gov. Code,
§ 6111, subd. (a); Stats. 2020, ch. 92, §§ 2, 11, effective Sept. 18, 2020, operative July 1,
2021.) Also, under Penal Code section 1465.9, the unpaid balance of the $1,500
presentence incarceration costs imposed under former Penal Code section 1203.1c is
“unenforceable and uncollectible,” and the portion of the judgment imposing this fee
must be vacated. (Pen. Code, § 1465.9, subd. (b); Stats 2020, ch. 92, § 62, eff. Sept. 18,
2020, operative July 1, 2021, amended by Stats. 2021, ch. 257, § 35, eff. Sep. 23, 2021;
see former Pen. Code, § 1203.1c (Stats 2021, ch. 257, § 25), eff. Sept. 23, 2021, repealed
Jan. 1, 2022.) According to the plain language of Government Code section 6111 and
Penal Code section 1465.9, the unpaid balances—remaining as of July 1, 2021—of the
booking and presentence incarceration cost fees must be vacated. (People v. Greeley
(2021) 70 Cal.App.5th 609, 626-627.)
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III. DISPOSITION
Defendant’s sentence is vacated, and this matter is remanded for resentencing. At
resentencing, the trial court shall consider whether to impose a lesser uncharged
enhancement under section 12022.53 (Tirado, supra, 12 Cal.5th at pp. 696, 700) and
exercise its discretion under Assembly Bills No. 124 and 518, and Senate Bill No. 567.
Any remaining unpaid balances, as of July 1, 2021, of the booking fee (former Gov.
Code, § 29550) and the presentence incarceration cost fee (former Pen. Code, § 1203.1c)
are vacated. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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