People v. Lopez CA5 ( 2022 )

Filed 12/28/22 P. v. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F082854
Plaintiff and Respondent,
(Super. Ct. No. F13911536)
v.
JOHNY NUNEZ LOPEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
Law Office of Nicco Capozzi and Nicco Capozzi for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kari Ricci Mueller and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Smith, J. and Meehan, J.
INTRODUCTION
This case returns to us after we affirmed defendant Johny Nunez Lopez’s
convictions but remanded to give the trial court an opportunity to consider exercising its
new discretion under Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620) to
strike certain firearm enhancements.1 At a sentencing hearing in May 2021, the trial
court struck one firearm enhancement imposed under Penal Code section 12022.53,
subdivision (d) (§ 12022.53(d) or section 12022.53(d)), but declined to strike any others.2
On appeal, defendant argues the refusal to strike any additional firearm enhancements
was an abuse of discretion. We disagree and affirm.
FACTUAL SUMMARY3
In December 2013, after an afternoon and evening of drinking, defendant, who
was a member of a Norteño gang, obtained a semiautomatic .45-caliber handgun with an
extended magazine, and started walking through a residential neighborhood. He
encountered a woman, Joey, in a car who was helping her stepbrother look for his dogs.
When Joey saw a man later identified as defendant walking, she stopped to ask if he had
seen the dogs. In response to her question, Joey saw defendant reach for a gun in his
waistband, put the gun to her head, and she heard a clicking sound. No bullet fired, and
she quickly laid down across the front seat of her car, pushed the gas pedal down and
drove away.
Meanwhile, Joey’s stepbrother, Dylan, was in his front yard calling for his dogs.
A neighbor, Angel, and Angel’s wife had come out to ask Dylan what he was doing;
1 Senate Bill 620 amended Penal Code section 12022.53, subdivision (h), which gave the
trial court discretion “in the interest of justice pursuant to Section 1385 and at the time of
sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this
section.” (§ 12022.53, subd. (h); see Stats. 2017, ch. 682, § 2.)
2 All statutory references are to the Penal Code unless otherwise indicated.
3 This is a basic summary of the underlying facts taken from the original, nonpublished
opinion. (People v. Lopez (Jan. 16, 2020, F074405) [nonpub. opn].)
2.
during their conversation, Dylan heard a pop sound and saw someone he later identified
as defendant approaching him. Defendant walked toward Dylan and said he was going to
kill him. Dylan attempted to back up and tried to reason with defendant, but defendant
fired on Dylan twice, striking him in the chest and the stomach. Dylan dropped to the
ground and crawled under a truck, but defendant leaned down and shot him a third time.
Dylan crawled out from underneath the truck and ran while defendant followed, firing the
weapon. Angel and his wife ran for the safety of their house, but a stray bullet from
defendant’s gun struck Angel while in the house. Another neighbor confronted defendant
and was able to obtain the gun; defendant was subsequently arrested and charged.
Defendant testified he did not remember anything about the shooting, and he did
not recognize either Joey or Dylan. He had no idea where he received the gun that he
was carrying on the night of the incident, and he had never seen it before. He had no
memory of when he loaded the gun or the events that followed. Blood tests showed
defendant’s blood-alcohol content on the night of the incident was 0.22 percent.
A jury convicted defendant of two counts of attempted second degree murder
(§§ 664, 187, subd. (a); counts 1–2), assault with a semiautomatic weapon (§ 245,
subd. (b); count 3) and shooting at an inhabited dwelling causing injury (§ 246; count 4).
The jury also found true the following special enhancement allegations: defendant
personally and intentionally discharged a firearm, which caused great bodily injury in the
commission of attempted murder and in the commission of shooting at an inhabited
dwelling (counts 1 & 4) (§ 12022.53(d)); defendant personally used a firearm during the
commission of an attempted murder (count 2) (§ 12022.53, subd. (b)); and defendant
personally used a firearm in the commission of a felony (count 3) (§ 12022.5, subd. (a)).
The trial court sentenced defendant to the upper term of nine years, plus an
additional 10 years for personally using a firearm in the commission of the offense
(count 2); a consecutive determinate term of two years four months (one-third the middle
term), plus 25 years to life for the firearm enhancement under section 12022.53(d)
3.
(count 1); followed by a consecutive term of one year eight months (one-third the middle
term) for shooting at an inhabited dwelling, plus an additional 25 years to life for the
firearm enhancement under section 12022.53(d) (count 4). The court stayed the nine-
year term imposed on count 3, as well as the attached firearm enhancement. The total
term imposed was 23 years determinate, followed by two consecutive indeterminate
terms of 25 years to life.
Upon defendant’s appeal, the convictions were affirmed but the matter was
remanded for the trial court to consider whether to exercise its new discretion under
Senate Bill 620 to strike the section 12022.53 firearm enhancements. At a sentencing
hearing in May 2021, the trial court elected to exercise its discretion with respect to one
firearm enhancement under section 12022.53(d) attached to count 4 for shooting at an
inhabited dwelling and causing injury. That enhancement carried a term of 25 years to
life, which was stricken from defendant’s sentence, and defendant’s aggregate sentence
was reduced to 23 years determinate followed by an indeterminate term of 25 years to
life. Defendant appeals again and asserts the trial court abused its discretion in refusing
to strike the remaining firearm enhancements.
DISCUSSION
Section 12022.53 provides three different sentence enhancements for the personal
use of a firearm in the commission of certain offenses: a 10-year enhancement for
personal use (§ 12022.53, subd. (b)); a 20-year enhancement for personal and intentional
discharge (§ 12022.53, subd. (c)); and a 25-year-to-life enhancement for personal and
intentional discharge causing great bodily injury or death (§ 12022.53(d)).
Section 12022.53 enhancements used to be mandatory, but, as of January 1, 2018,
pursuant to Senate Bill 620, trial judges have discretion to strike or dismiss them “in the
interest of justice” under section 1385. (§ 12022.53, subd. (h); see People v. Pearson
(2019) 38 Cal.App.5th 112, 116 (Pearson) [“Senate Bill No. 620 …, which added
4.
section 12022.53, subdivision (h), gave the trial court discretion … ‘[to] strike or dismiss
an enhancement otherwise required to be imposed by this section.’”].)
A trial court’s refusal to strike a section 12022.53 firearm enhancement under
section 1385 is reviewed for an abuse of discretion. (People v. Carmony (2004) 33
Cal.4th 367, 374–375; Pearson, supra, 38 Cal.App.5th at p. 116.) That standard is
guided by two “fundamental precepts”: first, the burden is on the party attacking the
sentence to clearly show the sentencing decision was irrational or arbitrary; 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.”’” (People v. Carmony, supra, at
pp. 376–377.) Second, a decision will not be reversed simply because reasonable people
might disagree; a reviewing court is “‘“‘neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge.’”’” (Id. at p. 377.) Taken together, these
precepts establish reversal is not required unless the defendant clearly shows the trial
court’s decision is so irrational and arbitrary that no reasonable person could agree with
it. (Ibid.)
Here, although the trial court struck the section 12022.53(d) firearm enhancement
imposed as to count 4, defendant argues the trial court abused its discretion in refusing to
strike the firearm enhancements associated with counts 1 and 2 (also § 12022.53
enhancements). Defendant maintains the trial court failed to account for his “‘whole’
person” and his life history. Among several factors defendant argues are mitigating, he
points to his relative youth and his intoxication at the time the crimes were committed;
his good record of employment prior to the crimes; his minimal prior criminal history;
and that he has availed himself of prison programs and education, has no record of rules
violations, and has formally disavowed his gang affiliation. According to defendant,
these factors weigh strongly in favor of a more proportional sentence, which is
exemplified by the Legislature’s enactment of Senate Bill No. 81 (2021–2022 Reg. Sess.)
5.
(Senate Bill 81), effective January 1, 2022, that significantly amended section 1385 and
gave new dimension to how trial courts should evaluate various factors in dismissing
enhancements. Given all these factors in favor of striking the firearm enhancements,
defendant argues the trial court abused its discretion in not doing so.
The People maintain the trial court properly focused on the nature and
circumstances of the crimes, and the court is presumed to have considered all other
relevant factors. The People contend defendant’s mere disagreement with how the trial
court weighed the relevant facts does not establish an abuse of discretion. Finally, the
People argue defendant’s reliance on the amendments to section 1385 under Senate
Bill 81 is misplaced because that law does not apply retroactively to sentencings that
occurred before January 1, 2022, like that at issue here.
Defendant submitted a memorandum prior to resentencing along with several
supporting exhibits that addressed potential mitigating factors. At the sentencing hearing,
defense counsel argued eloquently that all of the firearm enhancements should be stricken
to provide a more proportional sentence in light of many relevant factors, including,
among others, defendant’s youth at the time the crime was committed and his exemplary
conduct in prison. The sentencing hearing reflects the trial court’s careful consideration
of whether to strike the firearm enhancements with particular attention given to the facts
of the case and the proportionality of the overall sentence in relation to the crimes and
conduct at issue.
“So the Court’s main consideration at this point, candidly, are the
two [section] 12022.53(d) … enhancements. Each of those led to a
separate sentence of 25 years to life for [defendant]. I do believe that the
[section] 12022.53(d) … as to Count 1 is applicable and with my discretion
I am not exercising my discretion to strike that enhancement. As I believe I
commented at sentencing, the fact that that victim did not die is just short of
a miracle. That victim was shot numerous times. There was no mercy. He
was trapped under a car, he was pleading and [defendant] just shot him.
And I recognize [defendant] may have been under the influence of alcohol,
but that shooting was, as stated at sentencing, more than callous and the
6.
[section] 12022.53(d) is applicable and I’m not exercising my discretion [to
strike it].
“Count 4, however, is a different story. Count 4, while clearly
supported by the evidence is—and at the time the Court did not have
discretion even to consider not exercising that … once found true and
[once] the Court determined there’s sufficient evidence to support [it], I
could not strike it. But it does strike the Court that imposing … a total of
73 years to life is rather extreme, and for those reasons as to Count 4 alone,
I am exercising my discretion and striking the [section] 12022.53(d)
recognizing that that will now result in a 48-year-to-life sentence. It was a
very serious offense.
“I appreciate the family’s sentiment that they would like [defendant]
back in their life. I don’t fault them for that. That’s a very reasonable
perspective and request as is [defendant’s], but I can’t ignore his conduct
and I can’t ignore what happened here.
“I will also note, as both Counsel have noted … [defendant] has
significant remedies available to him concerning youthful offender hearings
where they may be able to address other issues, but for the reasons stated
and recognizing the discretion I have to address each firearm enhancement,
I’m denying that discretion except as to Count 4 and I’m striking the
[section] 12022.53(d) .… I’m not [resentencing] him on either Counts 1, 2,
3 or four, so therefore the total sentence is 48 years to life.…”
The factors a trial court must consider when determining whether to strike a gun
enhancement “are the same … the trial court must consider when handing down a
sentence in the first instance.” (Pearson, supra, 38 Cal.App.5th at p. 117, citing Cal.
Rules of Court, rules 4.410, 4.421 & 4.423.) Aside from the factors listed for
determining whether to strike enhancements listed in California Rules of Court,
rule 4.428(b), the trial court is also to consider those factors listed in California Rules of
Court, rule 4.410 (listing general objectives in sentencing), as well as circumstances in
aggravation and mitigation under California Rules of Court, rules 4.421 and 4.423.4
4 California Rules of Court, rule 4.428(b) provides, in relevant part that, “[i]n determining
whether to strike … the punishment for the enhancement, the court may consider the effect that
striking the enhancement would have on the status of the crime as a strike, the accurate reflection
7.
“[U]nless the record affirmatively reflects otherwise,” the trial court is deemed to have
considered factors enumerated in the California Rules of Court. (Cal. Rules of Court,
rule 4.409; see Evid. Code, § 664 [presumption that official duty has been regularly
performed].)
Among those factors is whether “[t]he crime involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness.” (Cal. Rules of Court, rule 4.421(a)(1).) The court expressly
considered this factor in refusing to strike the other enhancements besides that attached to
count 4, particularly as to count 1 where defendant trapped Dylan under a car and, despite
the victim’s pleas, shot Dylan multiple times, showing no mercy; the court observed the
fact Dylan did not die was “just short of a miracle.” The court noted defendant’s conduct
was “more than callous” and serious, reflecting that defendant had engaged in violent
conduct indicating a serious danger to society. (Id., rule 4.421(b)(1).)
The potential mitigating factors defendant highlights on appeal were before the
trial court in defendant’s sentencing brief, the supporting statements of his family, and
were well-articulated by defense counsel at the sentencing hearing. There is no
affirmative evidence the trial court refused or failed to consider the relevant factors or
misunderstood the scope of its discretion in any way. Rather, it appears the trial court did
not deem the mitigating factors defendant points to as outweighing the serious nature and
circumstances of the offenses. (See People v. Lamb (1988) 206 Cal.App.3d 397, 401
[court has wide discretion in weighing aggravating and mitigating factors, and the court
need not state reasons for minimizing or disregarding circumstances in mitigation].)
Even if another court might have concluded differently, the trial court’s refusal to strike
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.”
8.
the remaining firearm enhancements was squarely within the bounds of reason and does
not reflect any abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 377.)
As for Senate Bill 81, which amended section 1385 after the May 2021
resentencing in this case, the Legislature expressly indicated the law operates
prospectively only to sentencings occurring after January 1, 2022. (§ 1385, subd. (c)(7);
Stats. 2021, ch. 721, § 1.) It does not apply retroactively to the May 2021 resentencing
that occurred in this case.
DISPOSITION
The trial court’s judgment is affirmed.
9.