People v. Harper CA4/1 ( 2022 )

Filed 10/7/22 P. v. Harper CA4/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D074943
Plaintiff and Respondent,
v. (Super. Ct. No. SCN308840)
JULIE E. HARPER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Blaine K. Bowman, Judge. Judgment of conviction affirmed; sentence
vacated and remanded for resentencing.
Cynthia Grimm, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys
General for Plaintiff and Respondent.
A jury convicted Julie Harper of second degree murder of her husband
Jason Harper and found true allegations that she personally discharged a
firearm (Pen. Code,1 § 12022.5, subd. (a)) and that the firearm’s discharge
resulted in Jason Harper’s death (§ 12022.53, subd. (d)). The court sentenced
her to 40 years to life in prison: 15 years to life for the murder conviction plus
25 years to life for the section 12022.53, subdivision (d) firearm enhancement.
The court stayed a 10-year term for the section 12022.5, subdivision (a)
firearm enhancement.
This is our third time considering Harper’s sentence; in her first
appeal, we remanded the matter so the trial court could exercise newly-
granted discretion in section 1385 (Sen. Bill No. 620) as to whether to strike
the firearm enhancements. (People v. Harper (Jan. 5, 2018, D069632)
[nonpub. opn.].) The trial court declined to strike the section 12022.53,
subdivision (d) firearm enhancement.2
1 Undesignated statutory references are to the Penal Code.
2 At Harper’s October 2018 resentencing hearing, the court observed:
“Now at sentencing the court did not have discretion to strike the gun
allegation and it was imposed. The court does have discretion at this point.
So the only issue that the court has to decide now is whether the interest of
justice would be served by striking the gun allegation pursuant to [section]
12022.53[, subdivision] (d). The court can consider all the facts of the case,
the impact to the victim’s family, all the circumstances that are present in
this case. This court, obviously, is very familiar with the facts of the case
2
Harper again appealed. In that second appeal (People v. Harper (Feb.
26, 2020, D074943) [nonpub. opn.]), Harper argued in part that she was
entitled to a remand under People v. Morrison (2019) 34 Cal.App.5th 217because the trial court was not aware of its discretion to impose a lesser,
uncharged gun enhancement under section 12022.53, subdivisions (b) or (c).
She also argued the court abused its discretion and violated her due process
rights by declining to strike the enhancement. We rejected the arguments
and affirmed the trial court’s decisions. In part, we held remand was not
required because the court was presented with a lesser sentencing option
than the 25-year-to-life firearm enhancement and was thus aware of the
scope of its discretion. (People v. Harper, supra, D074943.)
. . . . The court can consider all of those factors in determining whether or not
to strike the allegation.” The court placed “great weight” on the fact Harper
used a gun. It stated: “[T]he court believes that Jason Harper would still be
alive today without the introduction of this gun into this case. Could you
have stabbed him to death? Could you have beat him to death with a
baseball [bat], as your defense attorney suggests? Yes. But that’s why the
legislature imposes such harsh penalties when someone uses a gun, because
it’s very impersonal. All it takes is the pulling of a trigger. It does not take
repeated stabbing. It does not take repeated blows with a baseball bat to
effectuate the killing. It is very impersonal, very easy. But most
importantly, that decision that you made that day was final and it was
irreversible. Once you pulled that trigger and ended Jason Harper’s life
there was nothing anybody could do to bring him back and that is what led to
the devastation and broken hearts that resulted from your killing your
husband. [¶] So the question is, would the interest of justice be furthered by
striking the use of the gun allegation? I’ve given this a great deal of thought.
I’ve considered the length of the sentence, the 25 years to life imposed for it.
[¶] The court did not have discretion at the time of sentencing but the court
does now. [¶] The court finds that the interest of justice clearly would not be
furthered by striking the gun allegation and reducing the sentence. [¶]
Therefore, the sentence of 40 years to life will remain. The defense motion to
strike the allegation and reduce the sentence is denied.”
3
The California Supreme Court granted Harper’s petition for review. In
May 2022, it transferred the matter back to this court with directions to
vacate our decision and reconsider the cause in light of People v. Tirado
(2022) 12 Cal.5th 688 (Tirado). Harper has filed a supplemental brief; the
People have not responded.
DISCUSSION3
I. Remand for Resentencing Is Appropriate
A. People v. Tirado
Harper contends that her matter must be remanded for a full
resentencing hearing to allow the court to exercise its discretion to strike the
section 12022.53, subdivision (d) enhancement and impose punishment under
a lesser firearm enhancement under Tirado, supra, 12 Cal.5th 688, and to
apply other new laws applicable to her sentence.
In Tirado, supra, 12 Cal.5th 688, the California Supreme Court—
resolving the conflict between People v. Morrison, supra, 34 Cal.App.5th 217and other Court of Appeal decisions—held that the “statutory framework” of
section 12022.53, as amended by Senate Bill No. 620, “permits a court to
strike the section 12022.53[, subdivision] (d) enhancement found true by the
jury and to impose a lesser uncharged statutory enhancement instead.”
(Tirado, at p. 692.) “When an accusatory pleading alleges and the
jury finds true the facts supporting a section 12022.53[, subdivision] (d)
enhancement, and the court determines that the section 12022.53
[, subdivision] (d) enhancement should be struck or dismissed under section
12022.53[, subdivision] (h), the court may, under section 12022.53
[, subdivision] (j), impose an enhancement under section 12022.53
3 The facts of the underlying offense are recounted in our prior opinions
and need not be repeated here.
4
[, subdivisions] (b) or (c).” (Id. at p. 700.) “[T]he Legislature has permitted
courts to impose the penalties under section 12022.53[, subdivisions] (b), (c),
or (d) so long as the existence of facts required by the relevant subdivision
has been alleged and found true.” (Id. at p. 702.)
Tirado reaffirmed that a defendant facing sentencing is entitled to
decisions made by a court exercising its informed discretion. (Tirado, supra,
12 Cal.5th at p. 694, citing People v. Gutierrez (2014) 58 Cal.4th 1354, 1391;
see also People v. Flores (2020) 9 Cal.5th 371, 431.) “A court acting while
unaware of the scope of its discretion is understood to have abused it.”
(Tirado, at p. 694.) Remand for resentencing is appropriate “unless the
record ‘clearly indicate[s]’ that the trial court would have reached the same
conclusion ‘even if it had been aware that it had such discretion.’ ”
(Gutierrez, at p. 1391.)
Here, Harper maintains nothing in the record indicates the trial court
anticipated Tirado’s holding, or otherwise understood it had discretion to
impose a lesser uncharged section 12022.53 enhancement; rather, according
to her, the hearing indicates the court believed it had only a choice to either
impose or strike the section 12022.53, subdivision (d) enhancement. She asks
us to reconsider the conclusion we reached in our prior opinion: that remand
was not required because the trial court was presented with a lesser
sentencing option than the 25 year-to-life enhancement it declined to strike,
namely, the section 12022.5, subdivision (a) enhancement, and it accordingly
“had a clear indication of its authority to strike the greater firearm
enhancement and impose the lesser.” (People v. Harper, supra, D074943.)
The trial court did not have the benefit of Tirado’s clarification of the
law and its holding that lower courts have the discretion to impose a lesser,
uncharged section 12022.53, subdivision (b) or (c) enhancement where the
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prosecution has charged the greater enhancement and the facts supporting
imposition of the lesser enhancement have been alleged in the accusatory
pleading and found true. (Tirado, supra, 12 Cal.5th at p. 697, see also id. at
pp. 700-701.) Nor has it considered cases making other clarifications since
Tirado. (E.g., People v. Johnson (2022) ___ Cal.App.5th ___ [2022 WL
4905411] [trial court has discretion to impose a lesser uncharged firearm
enhancement under section 12022.5, subdivision (a) when it exercises its
discretion to strike a section 12022.53, subdivision (b) firearm enhancement];
People v. Fuller (2022) ___ Cal.App.5th ___, ___ [2022 WL 4244595].) We
elect to permit the trial court in the first instance to consider these
clarifications and resentence Harper so as to ensure it understands and
exercises the full scope of its discretionary authority with respect to the
firearm enhancements. Under these circumstances, a remand for
resentencing will allow the court to exercise its informed discretion. We
express no view on how the court should exercise its discretion.
B. Other Sentencing Considerations
Harper contends that remand for resentencing is appropriate for two
additional reasons. First, she argues the court must consider new mitigating
circumstances as a result of changes to section 1385 made by Senate Bill No.
81 (2021-2022 Reg. Sess.). The law now requires courts to dismiss
enhancements if this furthers justice. (§ 1385, subd. (c)(1), as amended by
Stats. 2021, ch. 721, § 1.) The trial court must consider “and afford great
weight” to evidence of specific enumerated mitigating factors in exercising its
discretion to strike or dismiss a sentencing enhancement. (Stats. 2021, ch.
721, § 1.) These factors include that the enhancement could result in a
sentence of over 20 years in which case “the enhancement shall be
dismissed,” or the current offense is “connected to” mental illness or prior
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victimization. (§ 1385, subd. (c)(2) (C), (D), (E), see also § 1385, subd. (c)(5),
(6).)4 Proof of one or more of these circumstances weighs greatly in favor of
dismissing the enhancement unless the court finds dismissal would endanger
public safety. (§ 1385, subd. (c)(2).)
Because the resentencing we have directed will take place after
January 1, 2022, we agree the court must apply the new law (as well as any
other applicable new sentencing laws) in any such proceeding. (People v. Sek
(2022) 74 Cal.App.5th 657, 674 [Senate Bill No. 81 must be applied in a
resentencing to occur after January 1, 2022]; see also People v. Valenzuela
(2019) 7 Cal.5th 415, 424-425 [“the full resentencing rule allows a court to
revisit all prior sentencing decisions when resentencing a defendant”]; People
v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on
review, on remand for resentencing ‘a full resentencing as to all counts is
appropriate’ ”].)
Second, Harper argues the court must consider whether an upper term
on her stayed section 12022.5 subdivision (a) enhancement is still
appropriate in light of Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3), which
4 Newly added subdivision (c) of section 1385 provides in part: “(1)
Notwithstanding 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. [¶] (2) In exercising its
discretion under this subdivision, the court shall consider and afford great
weight to evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are present. Proof of
the presence of one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” (§ 1385, subd. (c); see also Sen.
Bill 81, ch. 721, § 1, pp. 1-3.) New section 1385, subdivision (c)(7) provides:
“This subdivision shall apply to all sentencings occurring after January 1,
2022.”
7
now creates a presumptive mandate for a middle term that can be overcome
only if Harper admits to aggravating factors, or such factors are found true by
a trier of fact beyond a reasonable doubt. (§ 1170, subd. (b)(1), (2).)5 We
agree the amendments to section 1170 apply retroactively to Harper. (See
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308; People v. Lopez
(2022) 78 Cal.App.5th 459, 465 [“The People properly concede that Senate
Bill No. 567’s ameliorative amendments to section 1170, subdivision (b) apply
retroactively to all cases not yet final as of January 1, 2022”].)
We need not address the latter issue further. Because we remand the
matter for resentencing, Harper can present her sentence-related arguments
to the trial court on remand. (Accord, People v. Fuller, supra, ___ Cal.App.5th
___ [2022 WL 4244595, at *10].) We express no view on the sentence Harper
may receive under the new laws.
II. Government Code Section 29550 Criminal Justice Administration Fee
The court ordered Harper to pay a $154 criminal justice administration
fee, also known as a “booking fee,” pursuant to Government Code section
29550. Harper asks us to vacate this fee because the Legislature eliminated
the statute authorizing it. We direct the trial court to vacate the fee.
5 Harper did not have a prior criminal record, a circumstance that was
identified by the probation officer as one factor in mitigation. The probation
report identifies three factors in aggravation: “The crime involved great
bodily harm and other acts, disclosing a high degree of cruelty and
callousness. After shooting the [victim] and leaving him lying on the ground
to die, the defendant then covered his body with linens, pillows, boxes and
luggage to conceal her crime.” (Cal. Rules of Court, rule 4.421(a)(1).) “The
defendant took advantage of a position of trust or confidence to commit the
offense in that she was married to the victim over 10 years.” (Cal. Rules of
Court, rule 4.421(a)(11).) “The defendant has engaged in violent conduct
which indicates a serious danger to society as evidenced by her actions in the
[i]nstant [o]ffense.” (Cal. Rules of Court, rule 4.421(b)(1).)
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“Assembly Bill No. 1869 ‘abrogated the authority to impose and collect
. . . the criminal justice administration fee.’ [Citation.] Newly enacted
Government Code section 6111 provides that ‘[o]n and after July 1, 2021, the
unpaid balance of any court-imposed costs pursuant to . . . subdivision (c) or
(f) of Section 29550 . . . is unenforceable and uncollectible and any portion of a
judgment imposing those costs shall be vacated.’ [Citation.] In other words,
‘by its plain terms,’ Government Code section 6111 ‘make[s] any unpaid
portion of the identified assessments, as they existed on June 30, 2021,
“unenforceable and uncollectible” as of July 1, 2021. [Citation.]’ [Citation.]
Further, ‘the statute . . . mandates that any portion of a judgment imposing
those fees be vacated.’ ” (People v. Thompson (2022) ___ Cal.App.5th ___, ___
[2022 WL 4130708, at *28], quoting People v. Greeley (2021) 70 Cal.App.5th
609, 626-627.)
We agree under Government Code section 6111, the unpaid balance of
the criminal justice administration fee must be vacated. (People v.
Thompson, supra, ___ Cal.App.5th at p.___ [2022 WL 4130708, at *28].)
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DISPOSITION
Harper’s sentence is vacated and the matter is remanded for
resentencing. On remand, the trial court shall consider Tirado, supra, 12
Cal.5th 688 and whether to exercise its discretion to strike the section
12022.53, subdivision (d) firearm enhancement or to impose a lesser firearm
enhancement, as well as any other new sentencing laws applicable to
Harper’s sentence. The court shall vacate the portion of the $154 criminal
justice administration fee (Gov. Code, § 29550) that remained unpaid as of
July 1, 2021 (Gov. Code, § 6011). In all other respects the judgment is
affirmed.
O’ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
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