Filed 7/27/23 P. v. Lopez-Suazo CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B318848
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA107838
v.
DAMIAN ANTONIO LOPEZ-
SUAZO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Chet L. Taylor, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Richard B. Lennon and Olivia Meme, 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, Stephanie A. Miyoshi and Kathy S.
Pomerantz, Deputy Attorneys Generals.
——————————
Appellant Damian Lopez-Suazo raises five issues in this
appeal. The People concede three of them. We affirm in part,
reverse in part, and remand with directions.
A jury convicted appellant of attempted premeditated
murder of a peace officer, attempted second degree robbery,
assault with a semiautomatic firearm, carjacking, driving or
taking a vehicle without consent, fleeing a pursuing peace
officer’s vehicle while driving recklessly, possession of a firearm
by a felon, and assault with a semiautomatic weapon upon a
peace officer. The jury also found true 12 allegations that
appellant personally used a handgun in violation of Penal Code1
sections 12022.53, subdivision (a) and 12022.5, subdivisions (b)
and (d). It was also alleged and found true that appellant
suffered a prior strike offense within the meaning of Penal Code
sections 667, subdivision (d), 1170.12, subdivision (b), and the
Three Strikes Law. The trial court sentenced appellant to a total
aggregate term of life plus 28 years four months in prison.
Appellant filed a timely notice of appeal.
STATEMENT OF FACTS
On November 7, 2017, Ruben Aguilar Melena parked his
pickup truck in the driveway of his Long Beach home and left it
running while he took his child inside the house. When he
returned to the driveway, he saw the truck being driven away.
The next day Officer James Kroeger of the Long Beach
Police Department responded to a call about a suspicious vehicle
in an alley off Stanley Avenue. When he arrived, Officer Kroeger
saw a pickup truck under a tarp and appellant standing next to
an open passenger-side door. In response to Officer Kroeger’s
1 Undesignated statutory references are to the Penal Code.
2
questions, appellant said the car was his; he had the keys; he was
not on probation or parole; he did not have a driver’s license;
there were no weapons in the truck; there was marijuana inside.
Officer Kroeger walked to his police car, reported the license
plate of the pickup truck, and learned it was stolen. He returned
to appellant, who did not comply with Officer Kroeger’s
instructions to interlace his fingers behind his head. Instead,
appellant grabbed at the front of Officer Kroeger’s uniform and
tugged on the holster of his gun, ultimately getting his weapon.
Both men fell to the ground. Officer Kroeger heard a “pop” and
felt pain near his left ear lobe. Appellant pointed the gun at
Officer Kroeger’s head, trying to fire it and saying, “I don’t want
to do this.” He then ran away through the gate of an apartment
complex. Officer Kroeger retrieved his shotgun from the patrol
car and pursued appellant on foot. Backup arrived and Officer
Kroeger was taken to the hospital. A live cartridge from a
firearm and a spent bullet with its casing were found in the alley.
A few hours later that night, Anthony Cruz and two friends
were in the living room of Cruz’s home on Stanton Place in Long
Beach, about 0.6 miles from the alley where Officer Kroeger was
shot. Cruz heard a noise outside, where he found appellant
trying to steal his mini motor bike. Cruz asked appellant what
he was doing and appellant responded that he needed the bike.
Cruz told appellant the bike would not start; appellant begged
him to let him have the bike. Cruz refused and appellant pulled
out a gun, waved it around, released its slide, and verbally
threatened Cruz.
3
As this was happening, Brittney Watson, Cruz’s girlfriend,
drove up in a red Honda Accord. Appellant got into the
passenger side of the Honda, pointed the gun at Watson, and told
her to drive. Cruz pulled Watson and the keys out of the car.
Appellant then got out and pointed the gun at everyone. Cruz
gave appellant the keys and he sped off in the Honda.
Law enforcement arrived at Cruz’s house in response to a
911 call and found a live handgun cartridge that matched the
style of ammunition used by the Long Beach Police Department.
Long Beach Police Officer Trevor Costin heard the call
about the carjacking, spotted the red Honda, and started to follow
it. After a highspeed pursuit, appellant drove through an Arco
station. He appeared to be trying to get out of the Honda. After
shots were fired, appellant was taken into custody.
In his defense, appellant admitted he stole the pickup truck
and planned to sleep inside of it because he was unhoused. He
also admitted he was a regular abuser of methamphetamine and
was especially paranoid the night of his arrest. He panicked
when Officer Kroeger told him to put his hands behind his head,
“man-handling” him by putting him in a chokehold. He believed
Officer Kroeger was going to kill him so appellant reached for the
gun. He denied pointing the gun at anyone or threatening to kill
anyone. He was “so high . . . so out of it” that he drove the red
Honda in circles firing a round through the roof of the car. The
police shot him with a rubber bullet and took him to the hospital.
He woke up in jail two days later with no memory of being in the
hospital.
4
DISCUSSION
I. The Trial Court Abused Its Discretion When It
Refused to Consider the District Attorney’s Special
Directive as Relevant to the People’s Motion to
Dismiss the Firearm Enhancement Allegations.
The People filed a motion to dismiss the 12 firearm
enhancements alleged against appellant. In support of their
motion, the People cited Los Angeles County District Attorney
George Gascon’s “Special Directives 20-08, 20-08.1, 20-08.2 and
20-14.” The Directives, issued in December 2020, set out policy
reasons why dismissal of the enhancements was in the interest of
justice. Special Directive 20-08 explained that the current
statutory ranges for criminal offenses alone, without
enhancements, are sufficient to both hold people accountable and
also to protect public safety. It also stated that “studies show
that each additional sentence year causes a 4 to 7 percent
increase in recidivism that eventually outweighs the
incapacitation benefit.” The Directive instructed deputy district
attorneys in pending cases to move to dismiss or withdraw
sentence enhancement allegations.
Judge Richard M. Goul presided over the hearing on the
motion, which he denied because the court requires “a specific
cause or reason regarding this defendant and the circumstances
of this defendant in this case. [¶] . . . [¶] . . . [A] generalized
motion to dismiss based upon a policy is unlawful and the court
may not follow it, so it is denied.”
5
A. Standard of Review
Denial of a motion to dismiss a sentence enhancement
under section 1385 is reviewed for abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 373–374.) A court abuses its
discretion if it is not aware of its discretion to dismiss a
sentencing allegation under section 1385 or if the court
considered impermissible factors. (Id. at p. 378.)
B. Applicable Law
In 2018, the Legislature enacted Senate Bill No. 620 (2017–
2018 Reg. Sess.), which gives a trial court discretion to dismiss a
firearm enhancement in the interest of justice under section
1385. (Stats. 2017, ch. 682, § 1.) Section 1385, subdivision (a)
provides that a judge may, upon motion of a prosecutor, “and in
furtherance of justice” order that an action or an enhancement
allegation dismissed. (§ 1385, sub. (a); People v. Bonnetta (2009)
46 Cal.4th 143, 145–146.)
In determining whether to dismiss a firearm enhancement,
a court analyzes the same factors considered in imposing a
sentence. (Nazir v. Superior Court (2022) 79 Cal.App.5th 478,
497 (Nazir).) “These factors include those listed in California
Rules of Court, rule 4.410 (general objectives in sentencing), rules
4.421 and 4.423 (circumstances in aggravation and mitigation),
and rule 4.428(b) (discretion in striking an enhancement and
punishment for an enhancement under § 1385.)” (Nazir, at
p. 497.) These rules refer to circumstances specific to the crime,
the defendant’s criminal history, and broader social objectives
such as deterrence and public safety. (Ibid.)
6
C. Analysis
In light of Nazir, the People concede the trial court erred in
not considering the policy considerations set out in the Special
Directives. We agree. In Nazir, Division 7 of this District
reversed a trial court’s refusal to consider the same Special
Directives for the same reason given by the trial court here—that
policy considerations do not warrant the exercise of discretion in
the absence of individualized characteristics of the offender and
the offense. (Nazir, supra, 79 Cal.App.5th. at pp. 487–488.) The
Nazir Court found the Special Directive’s stated goals of
deterring crime and reducing recidivism, objectives of the
criminal justice system, are proper considerations, along with
other factors, in determining whether to impose or dismiss a
firearm enhancement. (Id. at pp. 497–498, 502.)
In accordance with Nazir, we reverse the order denying the
People’s motion to dismiss the firearm enhancements and
remand the matter to the trial court to consider whether the
Special Directives, among other factors, support dismissal of the
enhancements in the interest of justice.
II. The Enhancements Must be Remanded to Permit the
Trial Court to Conduct the Mitigation Review Now
Required by Senate Bill No. 81.
The jury found true 12 firearm enhancements. The trial
court imposed sentence on 10 of the 12 enhancements. Appellant
contends that Senate Bill No. 81 compels the dismissal of all but
one of the enhancements where, as here, multiple enhancements
are alleged in a single case. We agree a remand is appropriate,
but not for the reasons proffered by appellant.
7
A. Applicable Law
Senate Bill No. 81 (2021–2022 Reg. Sess.) amended section
1385 to require a court to dismiss enhancements if such dismissal
is in the interest of justice. (Stats. 2021, ch. 721, § 1.) The court
must consider certain enumerated factors when exercising this
discretion and must afford great weight to the presence of any
mitigating circumstances listed in the statute, unless the court
finds that “dismissal of the enhancement would endanger public
safety.” (§ 1385, subd. (c)(2).) The statute applies to sentencings
after the effective date of the statute, January 1, 2022.
Appellant’s sentencing occurred after January 1, 2022.
The legislation lists one of the mitigating circumstances as
“(B) Multiple enhancements are alleged in a single case. In this
instance, all enhancements beyond a single enhancement shall be
dismissed.” (§ 1385, subd. (c)(2)(B).)
B. Analysis
Appellant contends the language in subdivision (c)(2) of
section 1385 compels dismissal of all but one enhancement where
multiple enhancements are alleged in a single case. We disagree.
Instead, we agree with and adopt Division Two’s analysis in
People v. Walker (2022) 86 Cal.App.5th 386, review granted
March 22, 2023, S278309. Division Two rejected the idea that all
but one enhancement must necessarily be dismissed where
multiple enhancements are charged. Instead, it found that the
broad provision is modified, as is consideration of all the
mitigating factors, by the condition that dismissal must not
“ ‘endanger public safety.’ ” (Id. at p. 397.) Rather than repeat
Division Two’s thorough analysis, we simply state that we find it
persuasive, thoughtful, and apt.
8
Because the record does not reflect whether the trial court
considered the specific factors enumerated in section 1385 and
whether dismissing the enhancements would endanger public
safety, we reverse the order denying appellant’s motion to
dismiss and remand the matter for a new hearing.
III. On This Record, Appellant’s Foreign Conviction Does
Not Qualify as a Serious Felony.
In 2021, appellant pleaded guilty to reckless driving
causing death in Nevada. The People alleged this prior
conviction was a serious felony under section 1192.7, and a
“strike” under the Three Strikes Law. The trial court agreed,
designated it as a “strike” for sentencing and then declined to
consider it for sentencing purposes.
Appellant contends the Nevada offense cannot be
considered a strike because conviction does not require that the
defendant personally inflict great bodily injury upon a person
other than an accomplice, an element required under the Three
Strikes Law.
A. Standard of Review
The question of whether appellant’s foreign conviction
qualifies as a serious felony under section 1192.7, subdivision
(c)(8) is a question of law subject to de novo review. (People v.
Lewis (2021) 11 Cal.5th 952, 961.)
B. Applicable Law
A foreign conviction qualifies as a prior conviction of a
serious or violent felony in California if it “includes all of the
elements of a particular violent felony as defined in subdivision
(c) of section 667.5 or serious felony as defined in subdivision (c)
9
of section 1192.7. (§ 667, subd. (d)(2).) Thus, a defendant whose
prior conviction was sustained in another jurisdiction is subject to
the same punishment as a person previously convicted of an
offense involving the same conduct in California. (People v.
Myers (1993) 5 Cal.4th 1193, 1201.)
A foreign conviction must include all elements of a serious
felony in California. (People v. Warner (2006) 39 Cal.4th 548,
552–553.) To make that determination, a sentencing court is
permitted to identify those facts that were already necessarily
found by a prior jury in rendering a guilty verdict or admitted by
the defendant in entering a guilty plea. The court may not rely
on its own independent review of record evidence to determine
what conduct realistically led to the defendant’s conviction.
(People v. Gallardo (2017) 4 Cal.5th 120, 124.) The court may not
determine a disputed fact that has not been established by virtue
of the conviction itself. (Id. at p. 136.)
In California, gross vehicular manslaughter, a violation of
section 192, subdivision (c)(1), corresponds to reckless driving
causing death in Nevada. Gross vehicular manslaughter
qualifies as a serious felony if the defendant personally inflicted
great bodily injury on a person other than an accomplice. (People
v. Gonzales (1994) 29 Cal.App.4th 1684, 1694.) The Nevada
statute to which appellant pleaded guilty requires that the
defendant proximately cause death or substantial bodily harm to
another person. (Nev. Rev. Stat. Ann. § 484B.653(9).)
Proximately causing injury does not equate to personally
inflicting injury. (People v. Rodriguez (1999) 69 Cal.App.4th
341, 347; People v. Wilson (2013) 219 Cal.App.4th 500, 506
[defendant’s admission that a person was killed as a proximate
result of his conduct did not establish that he personally inflicted
10
injury]; People v. Valenzuela (2010) 191 Cal.App.4th 316, 321
[same].)
C. Analysis
The People agree with appellant that the record does not
establish that appellant personally inflicted great bodily injury
when he committed the crime of reckless driving causing death.
Neither was it proven that the victim was other than an
accomplice. We agree as well. Although the court did not rely on
this prior conviction to impose a sentence under the Three
Strikes Law, we vacate the court’s finding to ensure that this
particular prior conviction is not considered as part of a new
sentence unless the People are able to prove up the missing
elements at resentencing. (People v. Barragan (2004) 32 Cal.4th
236, 259 [reversal of a true finding on a prior conviction does not
bar retrial of the enhancement].)
IV. The Conviction for Possession of a Firearm by a
Felon Does Not Violate the Second Amendment.
Appellant was convicted of violating section 29800,
subdivision (a)(1) which prohibits any person who has been
convicted of a felony from possessing a firearm. He contends this
conviction violates the Second Amendment to the United States
Constitution, which guarantees an individual the presumptive
right to possess and carry a firearm for self-defense. (New York
State Rifle & Pistol Assn v. Bruen (2022) 597 U.S. ___ [142 S.Ct.
2111, 213 L.Ed. 2d 387].)
We disagree and adopt the analysis of People v. Alexander
(May 15, 2023, E078846) 91Cal.App.5th 469, 480, which
concludes that possession of a firearm by convicted felons is not
conduct protected by the Second Amendment.
11
V. The Record Supports the Trial Court’s Denial of
Appellant’s Pitchess Motion.
Appellant filed a pretrial motion for discovery pursuant to
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), asking
for information from the personnel records of Officer Kroeger
about any accusations against him of misconduct, dishonesty or
disciplinary proceedings. The trial court granted the motion for
accusations of false reporting and conducted an in-camera
hearing with the custodian of records for the City of Long Beach.
The court found no allegations of false reports and sealed the
records. Appellant asks us to review the sealed records to
determine if the trial court abused its discretion in finding no
discoverable evidence. (People v. Mooc (2001) 26 Cal.4th 1216,
1228.) The People do not object.
We have reviewed the transcript of the in-camera hearing
and find no discoverable information in Officer Kroeger’s
personnel file.
12
DISPOSITION
The firearm enhancements are vacated for reconsideration
under Senate Bill Nos. 620 and 81. The finding that the Nevada
conviction for reckless driving causing death constitutes a
California strike is vacated and remanded for retrial. The
judgment of conviction for possession of a firearm by a felon is
affirmed. The order finding no discoverable evidence of
dishonesty under Pitchess is affirmed. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
VIRAMONTES, J.
13