People v. Medina CA4/1 ( 2023 )

Filed 3/9/23 P. v. Medina CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080110
Plaintiff and Respondent,
v. (Super. Ct. No. SCD289362)
CHRISTINA MEDINA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Dwayne K. Moring, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Arlene A. Sevidal, James M. Toohey and Randall D. Einhorn, Deputy
Attorneys General, for Plaintiff and Respondent.
Christina Medina appeals from a judgment entered after a jury
convicted her of premeditated attempted murder (Pen. Code, §§ 664/187,
189)1 and shooting at an occupied motor vehicle (§ 246). She argues that:
(1) the trial court committed reversible error by instructing the jury with a
modified version of CALCRIM No. 604 on imperfect self-defense and with
CALCRIM No. 3472 on perfect self-defense; and (2) the 25-to-life firearm
enhancements imposed by the trial court are subject to mandatory dismissal
under section 1385, subdivision (c)(2)(C), because they resulted in a sentence
over 20 years. We find no reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting
Medina dated the victim Sean P. in 2020. At some point, they briefly
lived together and were engaged, but broke up in December 2020. According
to Medina, Sean was physically and verbally abusive during their
relationship, including two incidents of domestic violence she reported to the
police. Another former girlfriend of Sean’s also testified that he was
physically abusive during their two-year relationship.
In March 2021, Medina believed that Sean owed her $1,000. Medina
repeatedly texted him demanding that he pay her “the rack,” a slang term for
$1,000.
On the evening of March 8, 2021, Medina and Sean arranged to meet at
a park in Imperial Beach. Around 8:30 p.m., Sean drove there with two
friends, V.R. and A.G. Sean got out of his car and walked to where Medina
was standing alone nearby. They gesticulated and argued with each other
about the money, but neither made any aggressive movements. According to
Medina, Sean agreed to go to Bank of America to get the money. Sean and
Medina walked back to Sean’s car together, where Sean told his friends that
Medina was going to ride with them to Bank of America. At that point,
1 All further statutory references are to the Penal Code.
2
however, Medina’s son Francisco Garcia arrived in his car. Medina got in
Garcia’s car and followed Sean to Bank of America.
At the bank, Medina and Sean got out of their cars and walked to the
ATM. According to Medina, Sean tried to withdraw money, but there were
insufficient funds in his account. Sean showed her that he had less than $10
in the account. Medina became angry and told Sean to ask his friends for the
money.
Sean went back to his car and sat in the driver’s seat. Medina stood
outside the open driver’s seat door. She demanded that Sean give her the
$1,000 she claimed she was owed. Sean said he did not have $1,000, but gave
her some money, possibly around $100, and told her he had no more.
Medina grabbed the steering wheel of Sean’s car. She told Sean and
his friends to get out and said she was going to take the car as collateral.
Sean told her she could not have the car because it belonged to his mother.
Medina told Sean to call his mother so that she could talk to her. Sean made
the call around 9:00 p.m.
Around the same time, Medina’s son Garcia walked up to the passenger
side of Sean’s car, opened the passenger door, and threatened to beat up A.G.
if Sean did not give Medina the money she demanded. A.G. was scared.
Sean told Garcia not to hurt A.G.
Before Sean could say much to his mother on the phone, Medina pulled
a handgun from her waistband and pointed it at Sean’s face. She pulled the
trigger. There was a clicking noise, but nothing happened, likely because
there was no round in the chamber. Medina then pulled back the slide,
chambered a round, pointed the gun at Sean’s face again, and pulled the
trigger a second time. The gun discharged, striking Sean in the mouth or
neck. Medina then walked back to her car and drove away with her son.
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According to the passengers in Sean’s vehicle, neither they nor Sean
made any threats before the shooting. Sean did not make any aggressive
movements towards Medina and did not have any weapons. When Medina
pulled the gun, Sean was just sitting in the car.
The shooting was captured on the bank’s video surveillance. The
videotape was played for the jury at trial. Though blurry, it did not depict
Sean making any furtive movements or Medina appearing to be startled or
surprised before the shooting. The videotape showed that Medina blocked
Sean from shutting his driver’s door about a minute before the shooting. It
also showed Medina standing outside Sean’s car and pointing the gun at him
for nine seconds from 9:12:51 p.m. to 9:13 p.m., racking the slide at 9:13 p.m.,
then pointing the gun at him again and shooting him at 9:13:08 p.m.
Sean and his friends drove to the hospital immediately after the
shooting. Sean suffered a gunshot wound to his mouth, tongue, and left
middle finger. He survived but had to have extensive reconstructive surgery.
On multiple occasions after the shooting, he suffered convulsions and
temporarily lost the ability to speak. The last time this occurred was a few
weeks before trial during a meeting with the prosecutor. Sean did not testify
at trial because his doctor believed it could trigger another seizure.
The police recovered a 9-millimeter bullet casing and a tooth from the
Bank of America parking lot. In Sean’s car, there was blood on the steering
wheel and driver’s side floorboard, and bone or tooth fragments on both front
floorboards. There were no weapons in the car, but there was a baseball bat
in the back seat. The police also recovered two cell phones, a wallet with no
money, and a folding knife from Sean’s clothing at the hospital.
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The police arrested Medina and her son at their apartment the next
morning. They never found the handgun or clothing worn by Medina at the
time of the shooting.
B. Medina’s Testimony
Medina testified on her own behalf. In early March 2021, she had
liposuction and her brother died. She began taking oxycodone for pain and
trazodone for insomnia. She believed that the drugs affected her brain
function. Around the same time, she discovered that someone had borrowed
money from a lending agency using her personal information, and the
amount owed was $1,000. She thought that Sean was responsible for the
fraud.
On the day of the shooting, Medina texted Sean and they agreed to
meet. Sean told Medina that he was bringing a “homie” with him. Medina
interpreted this to mean that Sean was “bringing backup,” so she brought her
gun to protect herself and placed it inside her clothing.
At their initial meeting at the park, Medina confronted Sean about the
fraud and asked him to give her at least half the money owed. Sean gave her
$60 or $65 and agreed to go to the Bank of America to get the rest. Medina
did not want to ride with Sean because she was scared and uncomfortable.
She rode with Garcia instead.
At the bank, Medina became angry after Sean tried to withdraw money
from the ATM and the insufficient funds message appeared. She told him to
ask his friends for money and then demanded his car as collateral. After
Sean said the car belonged to his mother, Medina demanded that he call his
mother to verify that the car was hers. Sean called his mother from inside
his car, but then he only said, “Mom, mom, mom” and hung up. This further
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angered Medina because she believed that Sean was lying about the car
ownership.
Medina’s son Garcia was standing at the passenger side of Sean’s car.
He told the front passenger, A.G., to pay Medina or they would take the car.
He demanded that A.G. get out of the car and told Sean, “If you don’t pay up,
I’m going to beat up your homie.” According to Medina, Sean laughed and
said, “You’re not going to do nothing” and “I’m going to pop you,” which is
slang for “I’ll shoot you.” Garcia told Sean, “do it now.”
According to Medina, she saw Sean “going for something that to me
looked like a gun.” She saw a handgun and a nail filer near the gear shift
between the front seats. She thought that Sean was going to shoot her son
and then shoot her.
Medina pulled out her gun. She racked the slide, pointed the gun at
Sean, and pulled the trigger. According to Medina, she only pulled the
trigger once, and the gun fired.
After the shooting, Medina walked back to Garcia’s car and placed the
gun on the floorboard. Garcia drove her home. She took a shower and
disposed of her clothing because she was too weak to do laundry. She did not
call the police or tell anyone else about the shooting that night.
C. Trial Court Proceedings
A jury convicted Medina of premeditated attempted murder
(§§ 664/187, 189) and shooting at an occupied motor vehicle (§ 246). The jury
also found true multiple firearm enhancements associated with both counts.
(§ 12022.53, subds. (b), (c) & (d).)
The trial court sentenced Medina to seven years to life for the
premeditated attempted murder, plus 25 years to life for the associated
firearm use enhancement under section 12022.53, subdivision (d). The court
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imposed a concurrent term of five years for the shooting at an occupied motor
vehicle, plus 25 years to life for the associated firearm use enhancement
under section 12022.53, subdivision (d). The court imposed and stayed
punishment for the lesser firearm enhancements.
DISCUSSION
I
Medina first contends that the trial court committed reversible error by
instructing the jury with a modified version of CALCRIM No. 604 on
imperfect self-defense and with CALCRIM No. 3472 on perfect self-defense.
We address each of these instructions separately applying a de novo standard
of review. (People v. Posey (2004) 32 Cal.4th 193, 218 [de novo standard of
review for claims of instructional error].)
A. Modified Version of CALCRIM No. 604
The trial court gave CALCRIM No. 604 on attempted voluntary
manslaughter committed with an unreasonable belief in the need for self-
defense or defense of another (known as imperfect self-defense). At the
prosecution’s request, however, the court modified this instruction by adding
the following sentence taken from CALCRIM No. 571 on voluntary
manslaughter: “Imperfect self-defense does not apply when the defendant,
through her own wrongful conduct, has created circumstances that justify her
adversary’s use of force.” Defense counsel objected to this modification.
We see no error. The modification is a correct statement of settled law.
(People v. Enraca (2012) 53 Cal.4th 735, 761 (Enraca); In re Christian S.
(1994) 7 Cal.4th 768, 773, fn. 1.) Even Medina concedes in her opening brief
that “[i]n general, self-defense and imperfect self-defense cannot be invoked
where a defendant, by her own wrongful conduct, creates the circumstances
in which the adversary’s attack is legally justified.”
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Medina nevertheless asserts error based on the holding of People v.
Vasquez (2006) 136 Cal.App.4th 1176 (Vasquez). There, the trial court
refused to give any instruction on imperfect self-defense—on the ground that
the defendant had induced the quarrel by luring the victim into an alley to
confront him. In reversing, the Court of Appeal stated the relevant law as
follows: “Imperfect self-defense does not apply if a defendant’s conduct
creates circumstances where the victim is legally justified in resorting to self-
defense against the defendant. [Citation.] But the defense is available when
the victim’s use of force against the defendant is unlawful, even when the
defendant set in motion the chain of events that led the victim to attack the
defendant.” (Id. at pp. 1179–1180.) Because there was evidence at trial that
“the victims, not the defendants, used unlawful force first,” the court
concluded that an imperfect self-defense instruction should have been given.
(Id. at p. 1180; see also People v. Randle (2005) 35 Cal.4th 987, 1001–1003
[defendant entitled to instruction on imperfect self-defense even though he
set in motion the series of events leading to the shooting, because victim’s use
of force was legally unjustified].)
In contrast to Vasquez, the trial court here gave a jury instruction on
imperfect self-defense. Moreover, the trial court’s modification to CALCRIM
No. 604 was consistent with Vasquez. It did not state that imperfect self-
defense is unavailable whenever the defendant is the initial aggressor or sets
in motion the chain of events leading to a killing. It merely stated that
imperfect self-defense does not apply when the defendant “has created
circumstances that justify her adversary’s use of force.” In other words, the
modification correctly stated that a defendant cannot engage in threatening
conduct that legally justifies her victim’s use of force, then invoke the victim’s
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justifiable force as a basis for claiming imperfect self-defense. This is exactly
what Vasquez held. (Vasquez, supra, 136 Cal.App.4th at pp. 1179–1180.)
To the extent Medina is suggesting that the prosecutor misstated the
law in arguing this point to the jury, she has forfeited the claim by failing to
object to the prosecutor’s argument on this basis at trial and failing to
request an admonition or curative instruction. (See People v. Centeno (2014)
60 Cal.4th 659, 674 (Centeno) [prosecutor’s misstatement of burden of proof
in closing argument “was forfeited” by defendant’s failure to object because
“[a] prosecutor’s misstatements of law are generally curable by an admonition
from the court”].) Thus, we conclude that Medina has failed to demonstrate
any error arising from the trial court’s modification of CALCRIM No. 604 on
imperfect self-defense.
B. CALCRIM No. 3472
Medina also argues that the trial court committed reversible error by
giving CALCRIM No. 3472 on contrived self-defense as follows: “A person
does not have the right to self-defense if he or she provokes a fight or quarrel
with the intent to create an excuse to use force.” Medina objected to this
instruction at trial but did not request that the court give any further
clarifying instruction.
Once again, this instruction as given by the trial court is a correct
statement of California law. (Enraca, supra, 53 Cal.4th at p. 761 [approving
materially identical CALJIC analog to CALCRIM No. 3472]; People v. Eulian
(2016) 247 Cal.App.4th 1324, 1333–1334 (Eulian) [holding that CALCRIM
No. 3472 is “a correct statement of law” under Enraca].)
In Eulian, the trial court gave the same instruction and the Court of
Appeal concluded: “The instruction is a correct statement of law.” (Eulian,
supra, 247 Cal.App.4th at p. 1334.) However, the court acknowledged that
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under the holding of People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez),
CALCRIM No. 3472 “might require modification in the rare case in which a
defendant intended to provoke only a nondeadly confrontation and the victim
responds with deadly force.” (Eulian, at p. 1334.) Accordingly, CALCRIM
No. 3472 has now been modified (effective September 2022, after Medina’s
trial) to add a bracketed second sentence for use only in such cases as follows:
“However, if the defendant used only non-deadly force, and the opponent
responded with such sudden and deadly force that the defendant could not
withdraw from the fight, then the defendant had the right to defend
(himself/herself) with deadly force and was not required to stop fighting.”
(CALCRIM No. 3472.)
Because the first sentence of CALCRIM No. 3472 is a correct statement
of law, and Medina did not request any amplifying or clarifying instruction,
she has forfeited any claim that the instruction as given was erroneous
without modification. “The long-standing general rule is that the failure to
request clarification of an instruction that is otherwise a correct statement of
law forfeits an appellate claim of error based upon the instruction given.”
(People v. Rundle (2008) 43 Cal.4th 76, 151.) “ ‘A party may not complain on
appeal that an instruction correct in law and responsive to the evidence was
too general or incomplete unless the party has requested appropriate
clarifying or amplifying language.’ ” (People v. Jennings (2010) 50 Cal.4th
616, 671.)
Medina contends that her case is similar to Ramirez, in which a divided
panel concluded that CALCRIM No. 3472 and the prosecutor’s arguments
prejudicially misstated the law as applied to the particular circumstances of
the case. In Ramirez, there was evidence that the defendants confronted
rival gang members intending to start a fight, but not to shoot or kill anyone.
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(Ramirez, supra, 233 Cal.App.4th at p. 944.) One of the defendants
(Armando) testified that after a fistfight broke out, one of the rival gang
members (Rivera) raised his hand holding an object that looked like a gun.
Armando then pulled his own gun from his sweatshirt pocket and fatally shot
Rivera. (Id. at p. 945.)
At trial, the defense argued that because Armando’s group started the
fight intending to use only non-deadly force, and Rivera responded with
sudden and deadly force, Armando still had a right to use deadly force in self-
defense. (Ramirez, supra, 233 Cal.App.4th at p. 948.) But in response, the
prosecutor repeatedly invoked CALCRIM No. 3472 to argue to the jury that
the defendants had forfeited any right of self-defense (perfect or imperfect) if
they were the initial aggressors, even if they only intended to provoke a
fistfight. (Ramirez, at pp. 943, 946, 948–949, 950.) In other words, the
prosecutor argued that “contriving to use any amount of ‘force’ entirely
precluded defendants’ self-defense claim, whether Rivera actually drew a gun
to escalate the confrontation to deadly force or Armando only thought he did.”
(Id. at p. 950.) The prosecutor repeatedly told the jury that, under CALCRIM
No. 3472, “it doesn’t matter” whether Rivera escalated a non-deadly conflict
to deadly proportions. (Ibid.) She “erroneously argued CALCRIM No. 3472
obliterated all forms of self-defense—both perfect and imperfect self-defense
alike—if the defendant contrived to use any force.” (Ibid.)
Although the Ramirez court acknowledged that “CALCRIM No. 3472
states a correct rule of law in appropriate circumstances” (Ramirez, supra,
233 Cal.App.4th at p. 947), the majority nevertheless concluded that
“CALCRIM No. 3472 as given here and as argued by the prosecutor
erroneously foreclosed defendants’ imperfect self-defense claim.” (Id. at
p. 952.) “In essence, the instructions and the prosecutor’s argument
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erroneously required the jury to conclude that in contriving to use force, even
to provoke only a fistfight, defendants entirely forfeited any right to self-
defense.” (Id. at p. 953.)
We find Ramirez to be distinguishable. In contrast to Ramirez, the jury
here could not have understood anything the prosecutor said as an argument
that Medina forfeited any right of self-defense if she or her son contrived to
use any amount of force, even non-deadly force. Rather, the prosecutor
argued that Medina was the one who initiated the threat of deadly force by
pulling out a gun, pointing it at Sean, pulling the trigger, racking the slide,
then pulling the trigger again and shooting Sean in the face because she was
angry. He also argued that it was simply not credible that Sean reached for a
weapon, as Medina claimed. Moreover, even if any of the prosecutor’s
arguments could be construed to suggest that Medina had no right of self-
defense if she or her son contrived to use only non-deadly force, Medina did
not object and has therefore forfeited any claim that the prosecutor misstated
the law. (Centeno, supra, 60 Cal.4th at p. 674.)
Even assuming any error in giving CALCRIM No. 3472 without
modification, we would find it to be harmless on this record. The evidence is
undisputed that Medina and her son were the initial aggressors who
demanded money from Sean and tried to take his car. The only evidence that
Sean responded by threatening to shoot them or reaching for a weapon was
Medina’s uncorroborated trial testimony, which was contradicted by the
testimony of other witnesses and the surveillance videotape. Defense counsel
argued both perfect and imperfect self-defense to the jury based on Medina’s
testimony, as well as a heat of passion theory of attempted voluntary
manslaughter. Yet the jury rejected all these defense theories and found the
attempted murder to be premeditated. The jury reached this verdict even
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though the trial court instructed it with CALCRIM No. 3471, which stated in
relevant part that “if the defendant used only non-deadly force and the
opponent responded with such sudden and deadly force that the defendant
could not withdraw from the fight, then the defendant had the right to defend
herself or another with deadly force and was not required to try to stop
fighting . . . .” Thus, the jury by its verdict necessarily rejected Medina’s
version of events.
Finally, it is improbable that CALCRIM No. 3472 contributed to the
jury’s verdict because there was no evidence that Medina “provoke[d] a fight
or quarrel with the intent to create an excuse to use force.” (Italics added.)
The evidence established that Medina provoked a fight or quarrel with the
intent to get money from Sean, not to manufacture a contrived excuse to use
force against him. Notably, the court instructed the jury: “Some of these
instructions may not apply depending on your findings about the facts of the
case. Do not assume, just because I give a particular instruction, that I am
suggesting anything about the facts.” Giving an irrelevant or inapplicable
instruction is generally harmless error. (People v. Cross (2008) 45 Cal.4th 58,
67.)
In these circumstances, any error in giving CALCRIM No. 3472 would
be harmless under either the Watson standard for state-law error or the
Chapman standard for federal constitutional error. (People v. Watson (1956)
46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)
II
Medina next argues that the 25-to-life firearm enhancements imposed
for counts one and two are unauthorized. She contends that these
enhancements are subject to mandatory dismissal under section 1385,
13
subdivision (c)(2)(C), because they resulted in a sentence over 20 years. We
disagree.
“For all criminal sentencing after January 1, 2022, our Legislature in
Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) has
provided direction on how trial courts are to exercise their discretion in
deciding whether to dismiss sentencing enhancements.” (People v. Walker
(2022) 86 Cal.App.5th 386, 391 (Walker).) Specifically, section 1385,
subdivision (c)(1) now provides that “the court shall dismiss an enhancement
if it is in the furtherance of justice to do so,” and subdivision (c)(2) states that
“[i]n exercising its discretion under this subdivision, the court shall consider
and afford great weight to evidence” of nine listed “mitigating circumstances,”
any one of which “weighs greatly in favor of dismissing the enhancement,
unless the court finds that dismissal of the enhancement would endanger
public safety.” Subdivision (c)(3) further provides: “While the court may
exercise its discretion at sentencing, this subdivision does not prevent a court
from exercising its discretion before, during, or after trial or entry of plea.”
The nine listed “mitigating circumstances” include factors such as
mental illness, prior victimization, childhood trauma, use of an inoperable or
unloaded firearm, the defendant’s status as a juvenile, and the use of a prior
conviction that is over five years old. (§ 1385, subd. (c)(2)(A)-(I).) They also
include the following two mitigating circumstances of relevance to this
appeal: “(B) Multiple enhancements are alleged in a single case. In this
instance, all enhancements beyond a single enhancement shall be dismissed.
[¶] (C) The application of the enhancement could result in a sentence of over
20 years. In this instance, the enhancement shall be dismissed.” (§ 1385,
subd. (c)(2), italics added.)
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Medina argues that because the 25-to-life firearm enhancements
resulted in a sentence of over 20 years, they must be dismissed under section
1385, subdivision (c)(2)(C). She contends that the trial court lacked any
discretion to impose these enhancements because the “shall be dismissed”
language of subdivision (c)(2)(C) made dismissal mandatory.
Other California courts have consistently rejected this mandatory
dismissal argument in construing the “shall be dismissed” language of
subdivisions (c)(2)(B) and (c)(2)(C). (See People v. Mendoza (Feb. 10, 2023,
E078534) ___ Cal.App.5th ___, ___ [2023 WL 1878568, at *3–*6]; People v.
Anderson (Feb. 7, 2023, B320627) ___ Cal.App.5th ___, ___ [2023 WL
1790118, at *3–*5]; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15–21;
Walker, supra, 86 Cal.App.5th at pp. 391, 395–398.)
We find the reasoning of these cases to be persuasive. The statutory
words “shall be dismissed” cannot be read in isolation. Construed as a whole,
the statute makes clear that the listed mitigating circumstances merely guide
the court’s discretion in determining whether a dismissal is in furtherance of
justice. Subdivision (c)(1) first sets forth the governing “furtherance of
justice” standard for dismissal, then subdivision (c)(2) states that the court
must consider the listed mitigating circumstances “[i]n exercising its
discretion” whether to dismiss. Subdivision (c)(2) further states that
dismissal is not required if the court finds that it would “endanger public
safety.” Subdivision (c)(3) confirms the discretionary nature of this decision
by stating that the court “may exercise its discretion at sentencing” but is not
prevented “from exercising its discretion” earlier in the proceedings.
Consistent with the holdings of our sister courts, we therefore conclude that
the “shall be dismissed” language of subdivision (c)(2)(C)—read in the context
of the statute as a whole—applies only after a court has exercised its
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discretion in determining that a dismissal is “in the furtherance of justice”
and would not “endanger public safety.” (§ 1385, subds. (c)(1), (c)(2).)
Medina’s contrary interpretation would mean that a 25-to-life firearm
enhancement could never be imposed. By her reasoning, dismissal of the
enhancement would be mandatory in every case because the resulting
sentence would always exceed 20 years. This interpretation would effectively
nullify section 12022.53, subdivision (d), which mandates “an additional and
consecutive term of imprisonment in the state prison for 25 years to life” for
personal and intentional discharge of a firearm proximately causing great
bodily injury or death in the commission of specified felonies. Such implied
repeals “are strongly disfavored.” (People v. Superior Court (Ortiz) (2022) 81
Cal.App.5th 851, 883.) “Absent an express declaration of legislative intent,
we will find an implied repeal ‘only when there is no rational basis for
harmonizing the two potentially conflicting statutes [citation], and the
statutes are “irreconcilable, clearly repugnant, and so inconsistent that the
two cannot have concurrent operation.” ’ ” (Garcia v. McCutchen (1997) 16
Cal.4th 469, 477.) Here, there is a rational basis for harmonizing the
statutes—by following the decisions of other California courts and holding
that the “shall be dismissed” language of subdivisions (c)(2)(B) and (c)(2)(C)
applies only if the trial court in the exercise of its discretion finds that
dismissal is in furtherance of justice and would not endanger public safety.
On appeal, Medina does not assert that the trial court abused its
discretion by impliedly determining that dismissal of these enhancements
was not in the furtherance of justice or would endanger public safety. Her
sole argument is that dismissal of the firearm enhancements was mandatory.
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Because we reject her sole claim of error, we affirm the trial court’s
imposition of the 25-to-life firearm enhancements.2
DISPOSITION
The judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
2 We also note that it is questionable whether this mitigating
circumstance even applies here. Medina was sentenced to seven years to life
for the premeditated attempted murder. It was arguably the life sentence
and not the firearm enhancements that “result[ed] in a sentence of over 20
years . . . .” (§ 1385, subd. (c)(2)(C).) One treatise has suggested: “There will
be no entitlement to relief unless it is the application of the term for the
enhancement that results in a sentence of longer than 20 years. Accordingly,
the right to relief under this provision will not be available to defendant’s
[sic] sentenced under the Indeterminate Sentencing Law (ISL). It is the
function of the sentence on the base term that results in the life sentence, not
the enhancement.” (Couzens et al., Sentencing California Crimes (The
Rutter Group 2022) § 12:11, p. 746.) We need not decide this question,
however, because we reject Medina’s argument for the other reasons we have
explained.
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