In re J.R. CA3 ( 2022 )

Filed 11/22/22 In re J.R. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----
In re J.R., a Person Coming Under the Juvenile Court C094403
Law.
THE PEOPLE, (Super. Ct. No.
JDSQ2000026)
Plaintiff and Respondent,
v.
J.R.,
Defendant and Appellant.
A juvenile court committed J.R. (the minor) to the Division of Juvenile Justice for
15 years after finding he committed second degree murder. The minor now challenges
the court’s finding for two reasons. First, he contends the juvenile court’s finding that he
committed second degree murder lacks evidentiary support. Although he acknowledges
he unlawfully shot a man to death, he asserts he lacked the malice necessary for second
degree murder under the doctrine of imperfect self-defense—a doctrine that applies when
a person kills based on an honest but unreasonable belief in the necessity to defend
against imminent danger of death or great bodily injury. Second, he contends the
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juvenile court’s ruling followed from a misunderstanding of the doctrine of imperfect
self-defense and, in support, cites several instances where the court mischaracterized the
doctrine.
We reject both arguments. While the juvenile court misstated the law at times in
discussing imperfect self-defense, we are satisfied that it ultimately applied the correct
standard. We are also satisfied that substantial evidence in the record supports the court’s
finding that the minor committed second degree murder. Apart from addressing the
minor’s arguments, we also address one sentencing issue. Although, the juvenile court
found true an enhancement allegation that the minor personally used a firearm when he
committed the murder, it neither extended the minor’s commitment based on this
enhancement nor struck the enhancement. We will remand to the juvenile court to clarify
its decision. In all other respects, we affirm.
BACKGROUND
A district attorney filed a juvenile wardship petition under Welfare and Institutions
Code section 602 after the minor shot to death a man named Lonnie L. The district
attorney alleged in the petition that the minor committed murder and that he personally
used a firearm, personally discharged a firearm, and personally discharged a firearm
causing great bodily injury or death. The parties afterward stipulated that the minor shot
Lonnie in the chest, which damaged his heart, lung, and liver and caused his death.
At the hearing on the petition, several witnesses offered conflicting accounts of the
facts surrounding the shooting. Lonnie’s wife, Erica L., offered the following account.
She and Lonnie awoke to the sound of their son, J.L., screaming outside. They ran
outside in their bathrobes and found “a whole bunch of kids, older kids in their teens,”
including J.L. and the minor. Erica described the scene this way: “Everybody kind of
fighting everybody, kind of thing.” She yelled, “Knock it off. Let’s go inside. Knock it
off.” She also tried to get J.L. away from the fighting. After Erica, J.L., and Lonnie
started to leave, the minor pointed a gun at J.L. J.L. responded, “sorry, sorry, man.
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We’re leaving.” The minor then pointed the gun at Erica. But after Lonnie made a
comment, the minor turned the gun on Lonnie. Lonnie then taunted the minor, saying,
“Hey, you. Take that pellet gun, your little pellet gun, BB ass. Punk kids, get out of here
and go home.” He also called the minor stupid. Erica then heard a gunshot and heard
Lonnie say, “Oh, no babe. He shot me. No. Oh, babe.” The minor was about eight to
10 feet from Lonnie at the time. Erica never saw Lonnie holding a weapon nor saw him
approach the minor.
J.L. testified similarly. After hearing a disturbance outside his house, J.L. ran
outside and saw a boy yelling and punching his girlfriend’s cousin’s car. J.L. and another
person outside, Ja. L., began fighting shortly after. Several other people outside joined
the fight too. Lonnie and Erica came outside the house as the fighting went on. Lonnie
encouraged J.L. to win the fight, and Erica screamed as she tried “to make sense of what
[was] happening.” At some point during the fighting, the minor pointed a gun at J.L.’s
chest and told him he “was going to blow [his] fucking brains out.” J.L. put his hands up,
begged for forgiveness, and asked the minor to chill. Sometime later, the minor pointed
his gun at Lonnie, who, at the time, was trying to get J.L., J.L.’s girlfriend, and Erica
inside. Lonnie told the minor “[t]o go put that toy BB gun down and go to sleep.” J.L.
then heard a shot and heard Lonnie say, “Mom, he just shot me.” The minor was about
six feet from Lonnie at the time. J.L. never saw Lonnie with a weapon, never saw him
make any threats, and never saw him fighting anyone that evening.
The minor offered a very different account of the shooting. He was staying at his
girlfriend’s house at the time. After hearing his girlfriend’s brother was getting jumped,
he ran outside and saw J.L. and Ja. L. fighting. The minor was friends with Ja. L. The
minor ran back inside his girlfriend’s house, grabbed his gun, and returned to the
fighting. He grabbed the gun for protection and to break up the fight. The minor, who
kept his gun hidden at the time, told J.L. to “let my friend get up.” J.L. eventually
complied. But shortly after, J.L. and Ja. L. began fighting again. A man in a robe
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(Lonnie) came toward the minor around this time, acted aggressive, looked crazy, and
appeared to be on drugs. Lonnie carried an object about 12 to 18 inches long that looked
like a wooden post.
The minor twice told Lonnie to stop his approach and, when Lonnie failed to
listen, the minor pulled out his gun and said, “This is what I have. Just go inside.”
Lonnie responded, “You punk kid. Put that BB gun away.” He then continued his
approach and added, “What are you going to do about it?” The minor warned him, “I’m
not like these other people. I will really shoot you.” He then cocked the gun and pointed
it at the ground, but Lonnie only laughed at him, saying, “You punk kid. . . . Put that BB
gun away.” The minor began stepping back to maintain a four-foot gap between him and
Lonnie, but Lonnie continued his approach.
After Lonnie “kind of” moved his arm, the minor fired the gun. He pointed the
gun at Lonnie’s chest and then aimed to the right before firing, intending to prove to
Lonnie he had a real gun and to scare Lonnie without hitting him. The minor then
“[c]asually” turned around and walked back to his girlfriend’s house, thinking at first that
he had missed Lonnie and later, after Lonnie said he had been shot, that he might have
grazed him. Before firing the gun, the minor felt scared for his life, believed anything
could have happened with Lonnie so close, and did not believe he could turn his back on
Lonnie and run away. He also felt disrespected by Lonnie but more afraid than
disrespected. The minor said he had no experience with guns at the time.
The minor’s friend, Phillip Rutherford, described the events consistent with the
minor. He saw J.L. and Ja. L. fighting and, at one point, J.L. tried to fight him too. After
J.L. got on top of Ja. L. and started hitting his head into the ground, Rutherford tried to
push J.L. off Ja. L. But as he tried to intervene, Lonnie hit him once or twice in the back
with “a bar or a bat or something” and left him with a bruise. Lonnie then began hitting
Ja. L. too and encouraged J.L. to “beat his ass.” Lonnie also ran at other people with his
weapon and swung it around, but he never hit anyone else. Rutherford said he was
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“pretty intoxicated” at the time of the fighting. He drank “at least two bottles of Jack
Daniels” before the fighting started, and about a quart of brandy afterward with his
mother.
Lonnie and Erica’s neighbor, Robert Lawrence, also testified about the night of the
shooting. After hearing noises outside, he went outside and saw a fight in the middle of
the street. Both J.L. and Lonnie were present and outnumbered. J.L. was fighting
someone, and Lonnie was trying to pull someone off J.L. and break up the fight. Several
kids hit Lonnie and Lonnie, in turn, hit back while trying to end the fight. According to
Lawrence’s initial testimony, he never saw Lonnie with a weapon, though he saw
“something next to him” after he was shot. But after a three-day break in his testimony,
he said Lonnie in fact did have a weapon, which was about 18 inches long. He also said
Lonnie raised the weapon threateningly, though he never swung it. Lawrence stated he
was heading back toward his home when he heard a gunshot. He then heard Lonnie say,
“They shot me in the dick,” and saw Lonnie grab that area.
During the questioning of several witnesses, the parties asked about a souvenir
baseball bat found at the scene. Erica said she had never seen the bat before. J.L., on the
other hand, said he had seen the bat. After the shooting, J.L. saw others run, heard a bat
fall to the ground, and then saw a bat on the ground about 14 feet from Lonnie. The
souvenir baseball bat was the bat he saw. J.L. added that he never saw anyone holding
the bat and had never seen that bat in his house. Rutherford also recalled seeing a
souvenir baseball bat, though in his telling, Lonnie used the bat as a weapon. He said
Lonnie’s weapon “looked like one of those little souvenir baseball bats you get at the
baseball parks. It looked like one of those.” But he then said he only made that
determination at a later date; around the time of the shooting, he did not “know what it
was.” Lawrence did not recognize the bat, but he said the weapon he saw Lonnie
carrying was about the size of the bat.
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Following the above witnesses’ testimony, several officers testified that each of
these witnesses had offered a materially different account in their statements shortly
following the shooting. Although, for instance, Lawrence testified he saw Lonnie hit
someone during the fighting, he told an officer that Lonnie never hit anyone. And
although Lawrence ultimately testified he saw Lonnie carrying a weapon during the
fighting, he told officers otherwise in his initial statement: “He did not see a weapon in
[Lonnie’s] hands.”
J.L.’s and Erica’s testimony likewise occasionally strayed from their statements to
officers. Although J.L. testified that the minor pointed a gun at him, he told officers he
only heard the gunshot; he never actually saw the gun. And although Erica testified that
the minor pointed the gun at her and J.L., she never mentioned that detail in her statement
to officers. Nor, in her statement to officers, did she say she saw the minor point the gun
at Lonnie or anyone else. Erica also informed the officers that she could not see exactly
who was involved because she was not wearing her glasses.
The minor’s and Rutherford’s testimony also occasionally departed from their
statements to officers. The minor, for instance, testified he had no experience with guns.
But he earlier told officers differently: He had been shooting with his father a couple of
times before Lonnie’s death. He also testified he believed Lonnie was on drugs, likely
methamphetamine. But he made no mention of this detail in his interview with the
officers. He further said Lonnie was eight feet away at the time he fired the gun, not four
feet away as he testified. Rutherford also described the facts somewhat differently in
these two settings. Although he testified about being present during the shooting, he
initially told an officer he knew nothing about the shooting. And after he acknowledged
being present in a later interview with officers, he told the officers that Lonnie hit him
with a weapon on the head—not, as he testified, that Lonnie hit him on the back.
The parties’ remaining evidence largely concerned security camera footage,
character evidence about Lonnie, and character evidence about the minor. A detective
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reviewed surveillance videos taken from several home security systems, including from
Lawrence’s house and Erica and Lonnie’s house. In viewing the video footage, the
detective never saw Lonnie carrying a weapon. But the detective acknowledged he could
not see Lonnie’s left hand and part of his left arm.
The character evidence about Lonnie was both good and bad. The good character
evidence came from a man who had dated Erica’s sister for nine years. He said he had
never witnessed Lonnie act violently toward anyone during the nine years he was with
Erica’s sister, never saw him use methamphetamine “or any of that type of stuff,” and
found him to be a “very kind, kind man.” The bad character evidence came from a 2009
article that the parties stipulated should be admitted into evidence. One minor, who was
11 years old at the time, said Lonnie asked her to perform oral sex on him and, when she
refused, Lonnie threatened to tie her up and throw her in the river if she told anyone.
Another minor, who was then 15 years old, said Lonnie gave him valium and a morphine
patch after he reported pain following yard work. Later the same day, Lonnie told the
boy to sleep with him and his wife and, the morning after, hit the boy in the legs with a
belt because he thought the boy disclosed what happened. A third minor, who was then
around 16 years old, said Lonnie and Erica gave her hallucinogenic mushrooms and tried
to have sex with her. After the minor refused, Lonnie and Erica had sex in front of her.
The character evidence about the minor concerned his good character. His mother
testified that he is nonviolent, loving, honest, and helpful with family. Another witness,
Jodi Hernandez, testified similarly. She met the minor when she was an assistant at an
in-school suspension room. She first became familiar with the minor and his family after
tutoring his sister at the minor’s home, and she later saw the minor at the in-school
suspension room after he stopped going to school. Over time, Hernandez became close
to the minor and his family. She believed the minor was honest, was not an aggressive
person, and was not violent.
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After hearing the parties’ evidence, the juvenile court found the minor committed
second degree murder. Although the minor claimed self-defense and imperfect self-
defense, the court found neither applicable. It reasoned, among other things, that the
evidence showed the minor acted because Lonnie “ma[d]e a wise crack about you’re just
basically a punk kid” and “that’s not a real gun,” not “because of a fear.” The court also
found the minor “personally used a firearm within the meaning of Penal Code [1 ] [s]ection
12022.5[, subdivision ](b) as alleged in the enhancement,” though the only statute cited
for the alleged enhancements was section 12022.53.2 The court committed the minor to
the Division of Juvenile Justice for 15 years for the murder. It intentionally added no
additional time for the firearm enhancement, but it never explicitly struck the
enhancement or the punishment for the enhancement.
The minor timely appealed.
DISCUSSION
I
Substantial Evidence
The minor first contends the juvenile court’s finding that he committed second
degree murder lacks evidentiary support. He reasons that because the prosecution
presented insufficient evidence to rebut his claim of imperfect self-defense, the juvenile
court should have found he committed voluntary manslaughter, not second degree
murder. We disagree.
“ ‘Second degree murder is the unlawful killing of a human being with malice, but
without the additional elements (i.e., willfulness, premeditation, and deliberation) that
would support a conviction of first degree murder.’ ” (People v. Chun (2009) 45 Cal.4th
1 Undesignated statutory references are to the Penal Code.
2 The court’s minute order, unlike its oral pronouncement, cites to section 12022.53,
subdivision (d). The court later cited this same provision during the disposition hearing.
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1172, 1181; see §§ 187, subd. (a), 189.) Voluntary manslaughter, in turn, is the unlawful
killing of another without malice. (§ 192, subd. (b).) In one of its forms, voluntary
manslaughter is called imperfect (or unreasonable) self-defense manslaughter. (People v.
Elmore (2014) 59 Cal.4th 121, 134 [“Unreasonable self-defense is ‘not a true defense;
rather, it is a shorthand description of one form of voluntary manslaughter’ ”].) Under
this theory of voluntary manslaughter, a person kills another based on “ ‘an honest but
unreasonable belief in the necessity to defend against imminent peril to life or great
bodily injury’ ” and lacks the malice necessary for first and second degree murder.
(Ibid.)
In this case, we find sufficient evidence supports the juvenile court’s finding that
the minor committed second degree murder. In evaluating the minor’s contention, we
must “ ‘ “review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the [the
minor committed the alleged act] beyond a reasonable doubt.” ’ ” (People v. Lee (2011)
51 Cal.4th 620, 632.) Our job is not to evaluate witness credibility, “ ‘for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends.’ ” (Ibid.) Nor is it
our job to reweigh the evidence. We instead must resolve all conflicts in the evidence in
favor of the judgment’s findings, so long as these findings are based on substantial
evidence and not speculation, supposition, or conjecture. (Ibid.; People v. Davis (2013)
57 Cal.4th 353, 360.)
Applying this deferential standard here, we find sufficient evidence supports the
finding of second degree murder. After seeing a friend in a fight with J.L., the minor
grabbed his gun from his girlfriend’s house, went back outside, and then approached J.L.
According to J.L., the minor pointed the gun at his chest and said he was “going to blow
[his] fucking brains out.” And according to Erica, the minor pointed the gun at J.L., then
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at her, and finally at Lonnie. Both J.L. and Erica heard Lonnie taunt the minor about the
gun, calling it a “BB gun” or a “pellet gun.” Erica also heard Lonnie call the minor
“stupid” and a “[p]unk kid[].” The minor acknowledged these comments left him
“pissed” (though “not mad”) and wanting to prove he had a real gun. He also
acknowledged he told Lonnie, “I’m not like these other people. I will really shoot you.”
Following Lonnie’s taunting, J.L. and Erica heard a shot and heard Lonnie say,
“He shot me” or “he just shot me.” Before the shooting, neither J.L. nor Erica saw
Lonnie carrying a weapon. Nor does any of the surveillance video footage show Lonnie
carrying a weapon, though, again, the footage never shows Lonnie’s left hand and part of
his left arm. J.L., moreover, never heard Lonnie make any threats, and neither J.L. nor
Erica ever saw Lonnie move toward the minor. Considering this record, we find the
evidence sufficiently supports a finding that the minor shot Lonnie because he was
“pissed” and wanted to prove he had a real gun, not because he feared for his safety. And
that is what the juvenile court found. In the court’s words, “That’s not somebody who is
acting because of a fear. . . . That’s somebody who is responding to somebody who
makes a wise crack about you’re just basically a punk kid. And that’s not a real gun.”
Although other evidence in the record also supports a contrary finding that the
minor acted because he feared Lonnie, the juvenile court acted within its discretion in
declining to credit this evidence. Relevant to this topic, three witnesses testified that
Lonnie had a weapon, described at various times as a bat, a bar, and a wooden post.
Lawrence, for example, testified that he saw Lonnie carrying a weapon about 18 inches
long. But his testimony varied on this topic. First, he testified that Lonnie carried no
weapon. But then, three days later, he testified that Lonnie did carry a weapon. And
later still, he testified that he spoke truthfully with an officer about what transpired
shortly after the shooting; and at that time, he said he did not see any weapon in Lonnie’s
hands. Given Lawrence’s conflicting statements, the juvenile court reasonably could
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have decided to credit Lawrence’s initial characterization of the facts in his statement to
an officer—which in Lawrence’s own telling, was the truth.
Two other witnesses also testified about seeing Lonnie carrying a weapon:
Rutherford and the minor. But the juvenile court reasonably found both their statements
not credible. Rutherford was the minor’s friend, said he testified to help the minor, and
acknowledged he was “pretty intoxicated” the night of the shooting, having had “at least
two bottles of Jack Daniels” with a friend before the shooting and a quart of brandy after
the shooting with his mother. He also gave conflicting statements about the details of the
shooting. He initially told officers he knew nothing about the shooting. But later he told
officers otherwise. He also told officers Lonnie hit him on the head with a weapon. But
at the hearing, he said Lonnie hit him on the back. He further claimed at the hearing that
the weapon “looked like one of those little souvenir baseball bats,” apparently similar to
the baseball bat found at the scene. But he then said that at the time of the shooting he
did not actually know what the weapon looked like; he only later managed to determine
that the weapon “looked like one of those little souvenir baseball bats.” Considering
Rutherford’s motive to help the minor, his intoxication the night of the shooting, and his
changing statements, the juvenile court reasonably could have doubted (and ultimately
did doubt) his credibility.
The juvenile court also had grounds for doubting the minor’s credibility. The
minor, as covered already, gave conflicting statements about his experience with
firearms. At the hearing, he said he had no experience using guns. But in his earlier
interview with a detective, he acknowledged he had shot guns with his father before
Lonnie’s death. The minor’s characterization of the night of the shooting also appeared
questionable. He said Lonnie had a weapon, acted aggressively, appeared to be on drugs,
and acted unafraid of the gun. He added that he could not turn his back on Lonnie
because Lonnie was only four feet away and “anything could happen.” But he then said
that after he fired his gun to scare Lonnie, he casually turned his back on Lonnie and
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started walking away—even though he initially thought he had missed Lonnie and even
though he had just claimed he could not turn his back on Lonnie because Lonnie was so
close and “anything could happen.” Considering this testimony, the juvenile court
reasonably expressed doubt about the minor’s credibility. It said: “If there was an
imminent [danger3 ] and [the minor] was not sure he hit him, he wouldn’t just be turning
around to walk away. And if he’s only firing at him to scare him, one might think he
would have immediately gone over to see if he was okay. This was all an accident. But
he did not.”
The minor nonetheless maintains that the juvenile court should have found in his
favor. But in making his argument, he evinces a misunderstanding of the relevant
standard on appeal. He argues: “[S]ubstantial evidence supported the verdict of
voluntary manslaughter on the theory of an actual but unreasonable belief that [Lonnie]
was about to assault [the minor] with the potential for killing him or inflicting great
bodily injury upon him. Therefore, [the minor’s] second-degree murder conviction
(count found true) must be reversed and a finding that he committed a voluntary
manslaughter imposed.” But the question is not whether substantial evidence supports
the minor’s position; it is instead whether substantial evidence supports the juvenile
court’s decision. And for the reasons covered, we find it does.
3 The court omitted the word danger in its statement. It said: “If there was an imminent
and [the minor] was not sure he hit him.” But shortly before this statement, the court
discussed the requirements for self-defense, stating that the minor must have “reasonably
believed that he was in imminent danger of being killed or suffering great bodily injury.”
Considering this context, we understand that the court meant to say “an imminent
danger,” not simply “an imminent.”
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II
The Juvenile Court’s Misstatements About Imperfect Self-Defense
The minor also contends the juvenile court prejudicially misunderstood the
standard for imperfect self-defense. He notes that the juvenile court wrongly
characterized imperfect self-defense as follows: “Imperfect self-defense is where there’s
one who would use like an excessive force; where one might have a defense of self-
defense and use excessive or inappropriate force.” The minor adds that the juvenile court
applied this flawed understanding of imperfect self-defense to the facts of this case when
it stated: “[This is] not a situation where there might be some force that would be
appropriate and somebody uses excessive force. So that is why I don’t think it’s
imperfect self-defense.” We reject his argument.
The juvenile court, it is true, misstated the applicable standard for imperfect self-
defense in these instances. As covered above, under the theory of imperfect self-defense,
the trier of fact considers whether the actor had “ ‘an honest but unreasonable belief in
the necessity to defend against imminent peril to life or great bodily injury’ ” (People v.
Elmore, supra, 59 Cal.4th at p. 134)—not, as the juvenile court represented, whether the
actor had some ground for acting in self-defense but used excessive force. Under the
applicable standard, an actor may have no valid reason for acting in self-defense, yet still
be entitled to invoke the doctrine of imperfect self-defense. But not so under the juvenile
court’s stated standard. Under the court’s understanding, even if the actor had an actual
but unreasonable belief in the necessity to defend against imminent danger of death or
great bodily injury, that would not be enough unless the actor also had a legitimate reason
for using at least some force in self-defense.
But although the juvenile court evinced a misunderstanding of the appropriate
inquiry in these statements, it ultimately (and appropriately) based its decision on an
evaluation of the minor’s actual beliefs. After discussing the minor’s conduct, it said the
following about the minor in rejecting his claim of imperfect self-defense: “That’s not
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somebody who is acting because of a fear. . . . That’s somebody who is responding to
somebody who makes a wise crack about you’re just basically a punk kid. And that’s not
a real gun.” The court similarly, discounting the minor’s claimed fear of Lonnie, said:
“If there was an imminent [danger] and [the minor] was not sure he hit him, he wouldn’t
just be turning around to walk away.” The minor’s conduct, in other words, belied his
claim that he feared Lonnie and feared imminent danger of death or great bodily injury.
These statements show the juvenile court ultimately rejected the minor’s claim of
imperfect self-defense on a valid ground—the evidence negated his claim that he acted
because he feared imminent peril. In the end, then, “even though the court, in isolated
instances, misstated the applicable standard,” “[t]he record of the hearing as a whole
persuades us . . . it nevertheless applied the proper concept.” (People v. Mayfield (1993)
5 Cal.4th 142, 196.)
III
Sentence Enhancement
Apart from addressing the minor’s arguments, we also address one sentencing
issue.
In its petition, the prosecution alleged three firearm enhancements. It alleged the
minor personally used a firearm within the meaning of section 12022.53, subdivision (b),
personally discharged a firearm within the meaning of section 12022.53, subdivision (c),
and personally discharged a firearm causing great bodily injury or death within the
meaning of section 12022.53, subdivision (d). The juvenile court purported to find one
of the alleged enhancements true. It found the minor “personally used a firearm within
the meaning of Penal Code [s]ection 12022.5[, subdivision ](b) as alleged in the
enhancement,” though, again, the prosecution alleged firearm enhancements within the
meaning of a different code section—section 12022.53. The court afterward committed
the minor to the Division of Juvenile Justice for 15 years and intentionally declined to
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impose any additional time for the firearm enhancement. But the court never purported
to strike either the enhancement or the additional punishment for the enhancement.
We will remand to the juvenile court to clarify the applicable statute for the
firearm enhancement and to clarify whether it intended to impose or strike the
enhancement. (See People v. Hunt (1977) 19 Cal.3d 888, 897 [“a use finding cannot be
dismissed or struck sub silentio”]; see also §§ 1385, subds. (a)-(b) [court can strike an
enhancement entirely or “instead strike the additional punishment for that
enhancement”]; § 12022.53, subd. (h) [“court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise
required to be imposed by this section”]; People v. Vizcarra (2015) 236 Cal.App.4th 422,
432 [“a trial court’s failure either (1) to pronounce sentence on a statutory sentence-
enhancement allegation based upon a finding by the trier of fact or an admission by the
defendant that the allegation is true, or (2) to exercise its discretion—to the extent
imposition of the enhancement is discretionary—to either strike the enhancement
allegation or impose the enhancement, results in an unauthorized sentence”].)
DISPOSITION
The matter is remanded to the juvenile court to clarify the applicable statute for the
firearm enhancement and to clarify whether it intended to impose or strike the
enhancement. The judgment is otherwise affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
HULL, Acting P. J.
/s/
MAURO, J.
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