People v. Perry CA5 ( 2021 )

Filed 12/22/21 P. v. Perry CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079881
Plaintiff and Respondent,
(Super. Ct. No. BF173254A)
v.
DESMOND JEROME PERRY, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Desmond Jerome Perry was charged with two counts of willful,
deliberate and premediated murder with a multiple-victims special circumstance, and one
count of shooting at an occupied dwelling. (Pen. Code, §§ 187, subd. (a), 189, subd. (a),
190.2, subd. (a)(3), 246.)1 The jury convicted defendant of two counts of murder, but
found the attached premeditation allegations not true. The jury also convicted defendant
of shooting at an occupied dwelling and on all three counts, found true that defendant
personally and intentionally discharged a firearm causing great bodily injury (GBI) or
death. (§ 12022.53, subd. (d).) On counts 1 and 2, the trial court sentenced defendant to
two consecutive terms of 15 years to life for second degree murder plus an additional
25 years to life for the firearm enhancement, for a total indeterminate term of 80 years to
life. On count 3, the trial court sentenced defendant to the lower term of three years plus
an additional term of 25 years to life for the firearm enhancement, stayed under
section 654.
On appeal, defendant advances several claims related to sentencing. He argues
that trial counsel rendered ineffective assistance of counsel when he failed to request that
the trial court exercise its discretion to substitute a lesser uncharged firearm enhancement
under section 12022.53 in lieu of the greater enhancement found true by the jury.
Relatedly, defendant argues that he is entitled to remand so the trial court may exercise its
discretion to substitute a lesser enhancement and that the trial court abused its discretion
when it declined his request to strike the firearm enhancement under section 1385.2
1 All further statutory references are to the Penal Code.
2 The Legislature recently amended section 1385. (Sen. Bill No. 81 (2021–2022 Reg.
Sess.) ch. 721, § 1, pp. 1–3.) Effective January 1, 2022, and applicable to sentencings occurring
after the effective date, section 1385 provides that “[n]otwithstanding any other law, the court
shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of
that enhancement is prohibited by any initiative statute.” (§ 1385, subd. (c)(1), (7), as amended
by Sen. Bill No. 81.)
2.
Finally, he argues that the trial court abused its discretion in imposing consecutive
sentences on counts 1 and 2.3
The People dispute defendant’s entitlement to relief.
We find no errors and affirm the judgment.
FACTUAL SUMMARY
There was no dispute at trial that Michael Wiggins and his 12-year-old niece,
Trinity Wiggins, were shot and killed by defendant on July 22, 2018.4 Wiggins, who was
in a long-term relationship with defendant’s cousin, T., was the intended target, but
defendant claimed he fired in self-defense after Wiggins pointed a gun at him. Trinity
was not a target and defendant was not aware of her presence, but she was struck and
killed by one of the bullets that pierced the exterior wall of the house.
I. Prosecution Evidence
A. Background
At the time of the shooting, Wiggins, T., and their three young children lived with
Wiggins’s brother, D., at D.’s house in California City. D.’s father-in-law and brother-in-
law, V. and V.S., Jr., also lived at the house, and the four children D. shared with his
estranged wife, including Trinity, visited often.
Wiggins and T. had been together for six or seven years, and they moved in with
D. approximately six months before the shooting. T. testified that Wiggins was never
abusive toward their three children, but, during the first half of their relationship, he
physically abused her. During the three years leading up to the crime, although there was
3 Defendant also argues that if we find his challenges to the trial court’s exercise of its
sentencing discretion forfeited for failure to object, trial counsel rendered ineffective assistance
of counsel. Given our determination that there was no error as to either imposition of the firearm
enhancements or imposition of consecutive sentences, we do not reach this claim. (People v.
McDaniel (2021) 12 Cal.5th 97, 129.)
4 Because the victims share a last name, we will refer to Trinity by her first name. No
disrespect is intended.
3.
no physical abuse, the couple argued often and T. said Wiggins would threaten her. T.
testified that Wiggins did not follow through on his threats, but, in statements, she said he
had a bad temper, did not back away from conflict, was paranoid and controlling, did not
like her talking to other men, and would not allow her to leave.
In contrast, D. testified he never witnessed any physical abuse between Wiggins
and T. and never saw Wiggins try to control T. However, he worked and was not at
home with them during the day. D. said the couple bickered occasionally, which he
found “funny” and “hilarious,” his testimony suggesting that the disagreements resolved
quickly and were not serious. D. described Wiggins as calm and nonviolent, and he said
T. did not seem afraid of Wiggins, she left the house with the children whenever she
wanted, and she would not have listened to Wiggins had he tried to control her. Neither
Wiggins nor T. had a vehicle, but D. testified he had seen T. threaten to leave before and,
one time, he saw her pack up and leave with the children via Uber. D. said Wiggins was
not unusually upset when T. left, and she returned home the next day.
T. and defendant met as children and had very sporadic contact over the years,
falling in and out of touch with one another. Approximately one month before the
shooting, T. reconnected again with defendant through Facebook. At the time, defendant
lived in Acton, approximately 45 minutes to one hour away from California City. They
did not see one another in person during this period, but communicated several times a
day through Facebook Messenger. In the past, T. told defendant that Wiggins was “gang-
related,” and, when they reconnected, T. told defendant that she and Wiggins were
having trouble and she wanted to leave. She mentioned going to a shelter, but defendant,
who lived in an apartment with his girlfriend and their young daughter at the time, did not
want her to do so, and he offered to let her and her children stay with him until she could
get on her feet. T. told defendant that Wiggins was beating her up and had threatened to
burn the house down. T. testified she was afraid of Wiggins, but she trusted defendant,
whom she thought was calm enough to handle defendant without trouble arising.
4.
B. The Shooting
On the day of the shooting, T. was messaging with defendant. T. testified she was
feeling unsafe and at 6:09 p.m., she messaged defendant about going to a shelter.
Defendant rejected that idea, and he asked where she was and what was happening. T.
responded she was at home and said, “‘BD is losing his mind,’” referring to Wiggins as
“[b]aby daddy.” Defendant asked her what Wiggins was doing and where she lived. T.
provided the address and responded, “‘Saying he’s going to set the house on fire with me
and the kids in it.’” Defendant told T. he was going to come and get her. When
defendant told T. he was on his way, she messaged, “‘Cuzzo, don’t do nothing to get you
in trouble.’”
At trial, T. explained she sent that warning because she was worried Wiggins, who
was larger, might hurt defendant. However, she also testified that Wiggins was aware
she and defendant were messaging each other and he “was okay with it.” Wiggins had
not taken any steps to carry out his alleged threat to burn the house down, and when
defendant asked T. if Wiggins had touched her, she told him no.
At approximately 7:30 p.m., defendant messaged T. that he was there. She walked
outside, hugged him, and told him she would be back with her stuff. Defendant was
alone and standing at the end of the walkway. T. testified the children were playing
inside and Wiggins was on their bed in the living room. Wiggins did not say anything to
her, and she did not tell him where she was going. She went into a room in the back of
the house and began packing items to go.
T. testified that she heard Wiggins and defendant talking outside, heard defendant
tell Wiggins to go back inside, and then heard multiple gunshots. She said she did not
see Wiggins go outside and did not see defendant with a gun. After hearing the shots, she
was in shock and screamed. She saw Wiggins in the hallway lying down with a gunshot
wound to his chest. He did not say anything to her and, when she looked outside,
defendant was gone and no one else was around.
5.
D. was not home when the shooting occurred, but V. and his son were in their
room. V. did not hear anything preceding the shooting and did not know where the shots
were coming from, so he told his son to exit the house through the window in their room.
V. then opened the door and saw Wiggins staggering down the hall. Wiggins was
bleeding and T. was behind him screaming hysterically. Wiggins slid down the wall and
told V. to call 911, which he did. V. heard T. saying something like “‘Desmond,’” and,
in her testimony, she identified her voice in the background of the 911 call saying, “‘It
was Desmond.’”
The police station was nearby and officers arrived quickly. Trinity was inside the
house on the floor, killed by a bullet that entered her right shoulder and traveled left
through her chest. Wiggins was in the hallway with a single gunshot wound and was still
conscious. He was able to provide his name and told police “‘her cousin’” shot him
before he started fading into unconsciousness.
Wiggins was transported to the hospital, where he died from his injury. He had
methamphetamine; benzoylecgonine, a metabolite of cocaine; and THC, the active
ingredient in marijuana, in his system when he died. However, D. had never seen
Wiggins use drugs, T. did not see him use drugs that day, and police did not find any
drugs or drug paraphernalia in the house.
At the scene, T. told Officer Hulse defendant was texting her and Hulse took her
phone. Defendant had asked if Wiggins was okay and if the police were there. Hulse
responded from T.’s phone, “‘I’m scared. What should I do?’” Defendant responded
that “‘one of his friends got into it, right,’” and Hulse texted back, “‘I don’t know what
you are talking about. Where are you?’” Defendant responded, “‘the 15. I’m hide in
Vegas.’” After more texting back and forth, defendant texted, “‘It was two. He shot
from the car. He is going to San Fran. I told him to shoot if he pulled a gun.’”
T. gave multiple statements to law enforcement. Officer Hulse testified that T.
said she saw defendant pull his gun first and she saw Wiggins point a pellet gun at
6.
defendant. Officer Hansen testified that T. stated she heard Wiggins tell the children to
go inside, and she heard Wiggins and defendant begin arguing. When she looked
outside, she saw defendant grab a large black weapon from the trunk of his car, heard
four or five shots, saw Wiggins struggling inside, and saw defendant put his gun back in
the car and drive off. She also told Hansen there was possibly a black male driving the
car and defendant was possibly the passenger. At trial, T. denied making those
statements and maintained she did not see either man with a gun and did not see
defendant leave.
C. Other Evidence
Officers located five shell casings at the scene and four bullet holes in the front of
the house in a pattern that suggested the shooter was moving while firing. Three of the
bullets went through the exterior wall into the home. Although the murder weapon was
never located, there was no dispute at trial that defendant used his legally purchased and
owned Smith & Wesson M&P Sport, an AR-15-type semiautomatic rifle. Officers also
located a pellet gun just inside the front door of D.’s house. It lacked any markings to
identify it as a pellet gun, and Officer Hulse conceded it could be mistaken for a real gun
“in the heat of the moment.”
On August 1, 2018, defendant’s car was found abandoned in the desert off a dirt
road after a county employee working in the area saw it and called it in. The same day,
based on his cell phone location, defendant was tracked down at the Lancaster apartment
of a coworker and arrested.
T. later wrote Wiggins’s and Trinity’s family an apology letter. In the letter, she
asked for forgiveness and stated she knew they were angry, but she was not at fault and
was also “‘hurting just as much .…’” She said defendant was only supposed to pick her
up and he “‘made the decision … on his own to shoot [Wiggins].’” She also wrote,
“‘You guys know how Junior is,’” referring to Wiggins, and “‘I told him Junior was
angry and he was making threats towards me and the boys. I also told him that I wasn’t
7.
in any danger.’” However, none of her messages with defendant reflected that she told
him things had calmed down and, on cross-examination, she conceded she did not tell
him she was no longer in danger or to go back home.
II. Defense Evidence
A. Character Evidence
Defendant’s mother, his girlfriend with whom he lived and shared a young
daughter, and one of his coworkers testified to defendant’s character. All three described
defendant as even tempered and honest, and stated he was not aggressive or
confrontational. Defendant was a full-time city bus driver in Los Angeles, and his
coworker testified it was a daily challenge dealing with people, but defendant had a good
reputation with other drivers, and he was always bubbly and helpful.
B. Defendant’s Girlfriend’s Testimony
Defendant’s girlfriend was at home with defendant the day of the shooting. She
testified that when he left their apartment that evening, he was concerned about his
cousin, but not angry or upset. He owned a firearm that used to be kept in the closet, but
was more recently kept in the trunk of his car. Defendant did not come home or call her
after he left the apartment that day and he did not respond to her text messages. She
testified that when deputies searched their apartment two days after the shooting, she told
them defendant’s gun was not in the apartment anymore because of their daughter. She
denied she told police he had it with him for protection from T.’s boyfriend.
C. Defendant’s Testimony
Defendant also testified. He and T. did not maintain consistent contact, but they
reconnected periodically. Several years before the shooting, T. told him Wiggins was
“‘gang-related’” after he went to pick her up and some “really aggressive” men came out
of the house to question him.
Approximately three weeks before the shooting, they reconnected through
Facebook and T. told him via Facebook Messenger that Wiggins was threatening her and
8.
the kids. Defendant testified that T. also said Wiggins pointed “‘a big ass gun’” at them
and she mentioned going to a shelter. Defendant did not want T. to go to a shelter and he
told her she could come to his house. On the day of the shooting, she messaged
defendant that Wiggins had threatened to burn down the house with her and the kids in it.
Defendant was concerned and worried, but he did not call police because he had the
impression from their conversations that T. did not want the police involved.
Defendant owned an unmodified semiautomatic firearm he purchased from a
licensed dealer six or seven years before the shooting. He also owned three 10-round
magazines, one of which was loaded, and he kept everything in a gun bag. Defendant
testified he initially bought the gun for personal protection, but only used it for target
practice at a gun range. He had moved the unloaded firearm and magazines from a shelf
in his closet to the trunk of his car about a year earlier, after his daughter grew curious
and attempted to reach the shelf with a stool.
Defendant went to pick T. up that evening. He got out of the car after he arrived,
opened the trunk, and moved stuff around to make room for T.’s bags. He spotted his
firearm in the trunk at that time. T. came out and greeted him and then said she was
going to get her belongings. Defendant did not see any children, but he knew T. and
Wiggins had three children and he saw a man’s head through the front door when T. re-
entered the house.
As defendant waited between the rear passenger door and the trunk, two of T.’s
and Wiggins’s children came out of the house and he said hi to them. Wiggins then came
out and told the children to go back in the house. He did not appear upset or angry to
defendant, but he asked defendant, “‘What’s up?’” Defendant responded that he was
taking T. and the kids with him, and Wiggins appeared shocked. Wiggins told defendant
that he was not going to take the kids and T, and defendant responded that it was T.’s
choice, not his or Wiggins’s.
9.
Wiggins seemed upset, but was not yelling. He stated defendant was “not gonna
fucking take the kids and [T.]” Defendant told Wiggins he was just there to pick up his
cousin and was not there to argue or fight, but Wiggins stated, “‘Shut the fuck up. I’ll
beat your ass.’” Defendant told Wiggins to go back inside the house, and Wiggins
repeated the threat and told defendant he was going to kill defendant and T. Defendant
again told Wiggins to go back inside the house. Wiggins repeated his threats and moved
toward defendant aggressively. Afraid, defendant then grabbed his rifle from the trunk,
but did not point it at Wiggins. He told Wiggins to leave him alone and go back in the
house.
Wiggins smirked and defendant realized the orange gun lock was on the weapon.
Defendant removed the lock, and Wiggins “stormed” into the house after telling
defendant, “‘Yeah, you’re not going nowhere.’” As defendant went to retrieve his cell
phone from his car, Wiggins reappeared carrying what defendant said looked like a large
rifle. Defendant testified that Wiggins was manipulating the gun and he moved to the
trunk as fast as he could, grabbed a magazine and loaded his rifle. Wiggins was then
pointing his weapon from the doorway of the house. As defendant prepared to fire,
Wiggins pulled the gun back through the doorway. Wiggins stuck the gun out of the door
again after manipulating it. Defendant testified he thought Wiggins was loading the gun
and that it was real, so when Wiggins pointed it at him the second time, he fired five
shots as he ran.
Defendant stated he was only trying to hit Wiggins and did not know Trinity was
in the house. After Wiggins retreated into the house, defendant jumped in his car and
drove off. He testified he was terrified and had never shot at anyone before. He just kept
driving down dirt roads until eventually his car got stuck in the desert sand and he was
unable to free it. He texted T. to ask if everyone was okay and if she had called the
police. After she responded and asked what she should do, defendant testified he became
more scared and made up a story about someone else shooting. He then called a
10.
coworker he had dated briefly during a period of separation from his girlfriend and she
picked him up. He testified he threw his gun in the dirt near the car and left it there.
Defendant said he learned two people died in the shooting when someone from his
work posted a news article about it to a Facebook group chat. At one point between the
shooting and his arrest, he went to Texas with his coworker, but they later returned to
California and he was arrested at her apartment.
D. Officer Hulse’s Testimony
Officer Hulse testified that defendant’s car was recovered on August 1, 2018. It
was found in the desert approximately 20 minutes from the scene of the shooting, near a
county building. The location was still within city limits, but was off a dirt road and
officers needed 4x4 off-road vehicles to access the area.
III. Rebuttal Evidence
Officer Hulse testified that 10 to 15 officers spent all day searching the desert
around defendant’s car, but never found the firearm. However, there was a pond by the
county building, approximately 100 to 150 yards from the car, and it was surrounded by
so much vegetation that they could not search it. Hulse also testified that on the day of
defendant’s arrest, he did not turn himself in right away. Instead, he did so that night
after law enforcement waited outside his coworker’s apartment all day.
Hulse testified that on the day they searched defendant’s apartment, his girlfriend
texted him to turn himself in, but he never responded to her. During her interview, which
was not recorded, defendant’s girlfriend said he usually kept his gun in the closet. She
did not know why it was not in the apartment, but said he might have taken it for
protection. She also did not know who defendant would need protection from, but said
maybe his cousin’s boyfriend.
11.
DISCUSSION
I. Imposition of Firearm Enhancements
As to all three counts, the prosecutor alleged defendant personally and
intentionally discharged a firearm proximately causing GBI or death, in violation of
section 12022.53, subdivision (d). The jury found the sentence enhancement allegations
true, resulting in imposition of additional, consecutive sentences of 25 years to life. The
trial court had the discretion to strike or dismiss the enhancement in the interest of justice
under section 1385, but declined to do so. (§§ 12022.53, subd. (h), 1385, subd. (a).)
Based on a split in the Courts of Appeal regarding whether the trial court has the
discretion to impose a lesser uncharged enhancement in lieu of the greater enhancement
found true by the jury, defendant advances two related claims. He argues that the trial
court abused its discretion when it failed to substitute a lesser enhancement under
section 12022.53 and trial counsel’s failure to request the substitution constituted
ineffective assistance of counsel. He also argues that the trial court’s denial of his motion
to strike the firearm enhancement was an abuse of discretion.
A. Discretion to Substitute Enhancement
1. Split of Authority
Because this determination informs the disposition of defendant’s first two claims,
we turn first to whether the trial court had discretion to impose a lesser uncharged
enhancement under section 12022.53 when defendant was only charged with, and the
jury only tasked with determining, the greater firearm enhancement under
section 12022.53, subdivision (d).
As in this case, the jury in Morrison convicted the defendant of murder and found
the firearm enhancement allegation under section 12022.53, subdivision (d), true.
(People v. Morrison (2019) 34 Cal.App.5th 217, 220 (Morrison).) Because the
prosecutor had dismissed the lesser enhancements alleged under section 12022.53,
subdivisions (b) and (c), they were not before the jury for consideration. (Morrison,
12.
supra, at p. 221.) On appeal, the defendant claimed the trial court misunderstood the
scope of its discretion to modify the enhancement to one of the “‘lesser included’
enhancement[s]” under the statute. (Ibid.)
The First District Court of Appeal considered whether the trial court had discretion
to impose a lesser enhancement under section 12022.53 that had not been found true by
the jury. (Morrison, supra, 34 Cal.App.5th at p. 220.) The court concluded that because
“the court may impose a ‘lesser included’ enhancement that was not charged in the
information when a greater enhancement found true by the trier of fact is either legally
inapplicable or unsupported by sufficient evidence” (id. at p. 222), the trial court also has
the discretion under section 1385 to strike the greater enhancement under
section 12022.53, subdivision (d) and impose a lesser enhancement under subdivision (b)
or (c) of section 12022.53, notwithstanding that the jury did not make findings as to those
enhancements (Morrison, supra, at pp. 222–223).
In Tirado, this court declined to follow Morrison’s lead with respect to the scope
of the trial court’s authority under section 1385 where the jury did not find a lesser
enhancement true. (People v. Tirado (2019) 38 Cal.App.5th 637, 644 (Tirado), review
granted Nov. 13, 2021, S257658.) The prosecutor in Tirado alleged, and the jury found
true, a firearm enhancement under section 12022.53, subdivision (d). (Tirado, supra, at
pp. 640–641, review granted.) As in Morrison, the defendant claimed on appeal that “the
trial court committed an abuse of discretion because it was unaware that pursuant to
sections 1385 and 12022.53, subdivision (h) it could have substituted the
section 12022.53, subdivision (d) enhancement with a different enhancement within the
same section.” (Tirado, supra, at p. 641, fn. omitted, review granted.)
This court interpreted section 12022.53, subdivision (h), and section 1385, and
concluded that the Legislature did not “grant the trial court the power to modify or reduce
a firearm enhancement .…” (Tirado, supra, 38 Cal.App.5th at p. 643, review granted.)
Tirado noted its “conclusion is consistent with the well-settled principle that ‘prosecuting
13.
authorities, exercising executive functions, ordinarily have the sole discretion to
determine … what charges to bring,’” and “because the People exercised their charging
discretion to allege only one enhancement, the trial court was limited to either imposing
or striking that enhancement.” (Id. at p. 644, review granted.) The court “recognize[d]
the trial court has the authority to impose a ‘“‘lesser included enhancement[]’”’ following
trial ‘when the charged enhancement is either factually unsupported or inapplicable to the
offense of conviction,’” but “the enhancement at issue … was neither unsupported by the
law nor unsupported by the evidence.” (Ibid., review granted.)
Subsequently, other Courts of Appeal followed Tirado. (People v. Hoang (2021)
66 Cal.App.5th 1020, 1023–1024, review granted Sept. 29, 2021, S270553; People v.
Delavega (2021) 59 Cal.App.5th 1074, 1094, review granted Apr. 14, 2021, S267293;
People v. Valles (2020) 49 Cal.App.5th 156, 167, review granted July 22, 2020, S262757;
People v. Garcia (2020) 46 Cal.App.5th 786, 790–791, review granted June 10, 2020,
S261772; People v. Yanez (2020) 44 Cal.App.5th 452, 457–458, review granted Apr. 22,
2020, S260819.) The California Supreme Court is now poised to issue a decision in
Tirado, which has been argued and submitted. (Cal. Rules of Court, rule 8.524(h).)5
2. Claims of Error Foreclosed Under Tirado
“‘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.’” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391; accord, People v. Flores (2020) 9 Cal.5th 371, 431–432; People v. Yanaga (2020)
58 Cal.App.5th 619, 625.) However, Morrison was decided just over four months before
defendant’s sentencing hearing and Tirado was decided approximately one and one-half
5 All further rules references are to the California Rules of Court.
14.
weeks before sentencing. Therefore, we presume both the trial court and trial counsel
were aware of the split of authority (People v. Jones (2017) 3 Cal.5th 583, 616; People v.
Blackburn (2015) 61 Cal.4th 1113, 1123–1124), and any claimed “‘“error must be
affirmatively shown”’” (People v. Giordano (2007) 42 Cal.4th 644, 666).
Moreover, we decline to depart from our holding in Tirado, which we believe to
be correctly decided. As explained in Tirado, the trial court lacked the discretion to
substitute a lesser enhancement under section 12022.53 where the jury only considered
and found true the enhancement alleged under subdivision (d) of section 12022.53. This
forecloses defendant’s claim that the trial court erred when it failed to impose, or
consider imposing, a lesser enhancement under section 12022.53.
It also forecloses defendant’s claim that trial counsel rendered ineffective
assistance of counsel. “‘To establish a violation of the constitutional right to effective
assistance of counsel, a defendant must show both that his counsel’s performance was
deficient when measured against the standard of a reasonably competent attorney and that
counsel’s deficient performance resulted in prejudice to defendant in the sense that it “so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.”’” (People v. Thompson (2010) 49 Cal.4th 79,
122.) “Counsel is not ineffective for failing to make frivolous or futile motions.” (Ibid.;
accord, People v. Bell (2019) 7 Cal.5th 70, 126–127.) Accordingly, given the holding in
Tirado, trial counsel did not commit error by failing to ask the trial court to exercise
discretion that it did not possess.
B. Denial of Motion to Strike Firearm Enhancements
Next, defendant claims the trial court abused its discretion when it denied his
motion to strike the section 12022.53, subdivision (d), enhancements. Section 12022.53
provides for “escalating additional and consecutive penalties, beyond that imposed for the
substantive crime, for use of a firearm in the commission of specified felonies” (People v.
Gonzalez (2008) 43 Cal.4th 1118, 1124), subject to the trial court’s ability to exercise its
15.
discretion to strike or dismiss the enhancement under section 1385 (§ 12022.53,
subd. (h)). Section 1385 permits the enhancement to be stricken or dismissed if the trial
court determines it is “in furtherance of justice,” and the reasons underlying the exercise
of such discretion must be stated on the record. (§ 1385, subds. (a), (b).)
1. Standard of Review
“‘[A] court’s discretionary decision to dismiss or to strike a sentencing allegation
under section 1385 is’ reviewable for abuse of discretion.” (People v. Carmony (2004)
33 Cal.4th 367, 373.) “In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial
judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at pp. 376–377.)
2. Analysis
At sentencing, trial counsel made an oral motion requesting the court strike the
firearm enhancements given that defendant did not have a prior criminal history, there
was “at least some semblance of self-defense or conflict” between defendant and
Wiggins, and defendant did not intend Trinity’s death. The court declined, noting that
the jury rejected defendant’s claim of self-defense and he used an assault rifle. The court
also noted the enormity of the family’s loss.
Defendant argues that “[c]onsideration of all the circumstances does not support
imposition of the enhancement, rendering the court’s refusal to strike the enhancements
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arbitrary and unreasonable.” Not so. At bottom, defendant disagrees with imposition of
the enhancements, and his claim is founded on the proposition that because the trial court
determined it was not in the furtherance of justice to strike the enhancements and
declined to exercise its discretion to do so, it abused its discretion. This inverts the
applicable legal principles, however.
As a threshold matter, the felony sentencing rules relied on by defendant apply in
cases involving determinate sentences (rules 4.401, 4.403), or indeterminate sentences
“imposed under … section 1168[, subdivision ](b) only if [the sentence] is imposed
relative to other offenses with determinate terms or enhancements” (rule 4.403). In this
case, defendant was sentenced to indeterminate terms. In any event, however,
defendant’s claim fails.
The California Rules of Court provide that “the court may consider the effect that
striking the enhancement would have on the status of the crime as a strike, the accurate
reflection of the defendant’s criminal conduct on his or her record, the effect it may have
on the award of custody credits, and any other relevant consideration.” (Rule 4.428(b).)
Factors in aggravation and mitigation include any that “reasonably relate to the defendant
or the circumstances under which the crime was committed.” (Rules 4.421(c), 4.423(c).)
“Relevant factors enumerated in these rules must be considered by the sentencing judge,
and will be deemed to have been considered unless the record affirmatively reflects
otherwise.” (Rule 4.409.) Relevant to this specific claim, a trial court is required to give
a reason for its sentencing choice only when it grants relief under section 1385.
(Rule 4.406(b)(8).)
There is no showing that the court misunderstood the scope of its discretion or
imposed a sentence that was unauthorized. Rather, the linchpin in defendant’s argument
is that the court stated there were no aggravating circumstances and did not discuss any
mitigating factors beyond his lack of a criminal record, although additional factors in
mitigation existed.
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As defendant points out, mitigating circumstances under the rules include that
“[t]he victim was an initiator of, willing participant in, or aggressor or provoker of the
incident,” and that “[t]he crime was committed because of an unusual circumstance, such
as great provocation, that is unlikely to recur” (rule 4.423(a)(2), (3)). However, nothing
in the record suggests the trial court felt bound by the jury’s rejection of defendant’s self-
defense claim or that it otherwise disregarded the issue. Rather, the court noted that it
accepted the jury’s verdict but also stated, “To an extent the defense is now trying to
convince this Court that there was a semblance of self-defense which arose to a conflict
between the victim and the defendant, and based on the evidence presented, it does not
appear to the Court of such.”
It is the jury’s duty to weigh the evidence and assess the credibility of the
witnesses in reaching the verdict, but the trial court, as well, exercises its sentencing
discretion through the lens of the evidence adduced at trial. Although defendant
disagrees with the court’s decision, he identifies nothing in the record that shows the
court’s exercise of discretion exceeded the bounds of reason. There was conflicting
evidence regarding who initiated the armed confrontation, and T. told Officers Hulse and
Hansen that it was defendant who pointed a gun first. The court’s view of the facts,
therefore, is not only supported by evidence adduced at trial, but that evidence
undermines the mitigating factors relied on by defendant in support of his argument.
Furthermore, although the trial court found no aggravating factors, the facts in this
case could have easily supported a contrary finding. (See People v. Brooks (2017) 3
Cal.5th 1, 39 [“‘“[W]e review the ruling, not the court’s reasoning and, if the ruling was
correct on any ground, we affirm.”’”].) Defendant fired five shots at the occupied
dwelling. While defendant was only aiming for Wiggins and did not know Trinity was
inside, he nevertheless fired at the house with a high-powered weapon knowing, at a
minimum, that T. and her three young children were inside. (Rule 4.421(a)(1) [“crime
involved great violence, great bodily harm, threat of great bodily harm, or other acts
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disclosing a high degree of cruelty, viciousness, or callousness”], id., (b)(1) [“defendant
has engaged in violent conduct that indicates a serious danger to society”].)
As stated, the trial court is presumed to have properly exercised its sentencing
discretion and defendant bears the burden of showing error. (People v. Carmony, supra,33 Cal.4th at pp. 376–377.) Neither a defendant’s nor a reviewing court’s mere
disagreement with the ruling will suffice as grounds to set it aside. (Id. at p. 377.) The
facts of this case are unusual and tragic in that defendant did not have a prior criminal
record and was a contributing member of society, there was no indication he was an
aggressive person, and he drove to California City planning only to help his cousin and
her three young children leave what he believed to be, and what may have been, an
abusive situation. However, defendant fired multiple rounds from a high-powered rifle at
a house, killing two people, one of them a child, and in declining to strike the firearm
enhancements, the trial court acted well within the bounds of its broad sentencing
discretion. (Ibid.)
II. Imposition of Consecutive Sentences
Finally, defendant claims the trial court abused its discretion in imposing
consecutive sentences. Although he acknowledges the existence of multiple victims can
support imposition of consecutive sentences, he argues that “[c]onsidering the absence of
aggravating factors, imposition of concurrent sentences was the only reasonable choice.”
The trial court had broad discretion to impose consecutive sentences (§ 669;
People v. Shaw (2004) 122 Cal.App.4th 453, 458), and it was not required to state its
reasons for selecting consecutive indeterminate terms (People v. Arviso (1988) 201
Cal.App.3d 1055, 1058, superseded by rule on another ground as stated in People v.
Calhoun (2007) 40 Cal.4th 398, 407, fn. 6; see § 1170, subd. (c) [statements of reasons
for selecting determinate sentencing choice required]; rule 4.403 [rules apply to
determinate sentencing]). Nevertheless, even when the law requires a reason be stated,
the existence of one aggravating factor suffices (People v. Davis (1995) 10 Cal.4th 463,
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552; accord, People v. Leon (2010) 181 Cal.App.4th 452, 468–469), and the court may
properly rely on the fact that the offenses were committed against multiple victims
(People v. Shaw, supra, at pp. 458–459; accord, People v. Leon, supra, at p. 468).
As discussed ante, there was evidence to support a finding of additional
aggravating factors, but even in the absence of such evidence, the trial court had the
discretion to impose consecutive indeterminate terms based solely on the fact that the
shooting killed two people. (People v. Shaw, supra, 122 Cal.App.4th at pp. 458–459;
People v. Leon, supra, 181 Cal.App.4th at p. 468.) Therefore, the record does not
support defendant’s claim of error.
DISPOSITION
The judgment is affirmed.
MEEHAN, J.
WE CONCUR:
LEVY, Acting P. J.
DeSANTOS, J.
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