People v. Thomas CA5 ( 2022 )

Filed 6/21/22 P. v. Thomas CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F078649
Plaintiff and Respondent,
(Super. Ct. No. F15907476)
v.
KESHAWN THOMAS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E.
Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney
General, Clara M. Levers, Jeffrey A. White, and Julie A. Hokans, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Meehan, J.
Keshawn Thomas (defendant) is currently serving an indeterminate prison
sentence for committing attempted murder and other related felonies. He appeals from an
order denying a request for relief under Senate Bill No. 620 (2017–2018 Reg. Sess.)
(Senate Bill 620), which gave trial courts discretion to “strike or dismiss” firearm use
enhancements in the interest of justice pursuant to Penal Code section 1385. (Id.,
§§ 12022.5, subd. (c), 12022.53, subd. (h); all further statutory references are to the Penal
Code.) Defendant’s judgment includes an enhancement under section 12022.53,
subdivision (d), which added a term of 25 years to life to a mitigated base term of five
years for attempted murder.
The trial court is alleged to have been unaware of its authority to replace the
charged and adjudicated enhancement with a lesser included, but uncharged,
enhancement under section 12022.53, subdivision (b) or (c). The California Supreme
Court’s recent decision in People v. Tirado (2022) 12 Cal.5th 688 supports this claim.
Accordingly, the cause will be remanded for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2016, a jury convicted defendant of attempted murder (§§ 187, 664;
count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), and attempted
robbery (§§ 211, 664; count 3). Firearm enhancement allegations under section
12022.53, subdivision (d) were found true in relation to counts 1 and 3. A firearm
enhancement allegation under section 12022.5, subdivision (a) was found true in relation
to count 2. No additional enhancements were alleged. 1
In April 2016, defendant was sentenced to an aggregate prison term of 30 years to
life based on the lower term of five years for count 1 plus the enhancement under section
1 Defendant’s unopposed request for judicial notice of the appellate record in case
No. F073552, which contains the underlying criminal information, is granted. Initially, count 1
also alleged personal infliction of great bodily injury for purposes of section 12022.7,
subdivision (a), but the allegation was dismissed before the case was submitted to the jury.
2.
12022.53, subdivision (d). Punishment for count 2 was stayed (§ 654) and a concurrent
prison term was imposed for count 3. The trial court emphasized it had no discretion
regarding the imposition of a life term under California’s “Use a gun and you’re done”
law, i.e., section 12022.53.
Defendant filed an appeal, which was pending when Senate Bill 620 took effect in
January 2018. The legislation amended sections 12022.5 and 12022.53 to allow trial
courts, “in the interest of justice pursuant to Section 1385 and at the time of sentencing,
[to] strike or dismiss [a firearm] enhancement otherwise required to be imposed ….”
(§§ 12022.5, subd. (c), 12022.53, subd. (h).) This court affirmed defendant’s convictions
but concluded Senate Bill 620 applied retroactively to his case. (People v. Thomas
(Sept. 13, 2018, F073552) [nonpub. opn.] (Thomas I).) The matter was remanded to
allow the trial court to consider exercising its expanded sentencing discretion under
sections 12022.53, subdivision (h), and 1385.
On January 3, 2019, the trial court conducted further proceedings and declined to
modify the sentence. Its reasoning is clearly stated in the record:
“… If I had the discretion to sentence [defendant] to a 12022.53(c)
enhancement on Count 1, I would consider granting the request … and
sentence him to up to 29 years determinate. Neither the statute nor any
reported case I have found, nor [the opinion in Thomas I] tells me that I
have that discretion. And if I were limited in my available sentence by
striking the 12022.53(d) enhancement to Count 1 to impose 19 years
determinate as the maximum sentence, I would find that that is an
inappropriate exercise of discretion.…
“So for what it’s worth, the Court declines to exercise its discretion
under 1385 with the understanding that it cannot replace the enhancement
with a lesser enhancement not found by the jury even though the facts
found by the jury, per their verdict[,] support that lesser enhancement. And
if the Court of Appeal[] feels that I can, in fact, impose that lesser
enhancement, this case should be remanded to me to exercise that
discretion, but I decline to exercise discretion under my understanding of
this code section, and what little case law there is that interprets it to this
point. The Court [of Appeal] says I could strike the enhancement and
3.
impose a different sentence. It says nothing about modifying the
enhancement, imposing a lesser enhancement, and I decline to strike the
enhancement if my only discretion is to drop to a sentence of 13, 16, or 19
years determinate.”
Defendant timely appealed the judgment imposed on remand. In September 2019,
this court issued an unpublished opinion (People v. Thomas (Sept. 25, 2019, F078649)
(Thomas II)) affirming the judgment. The California Supreme Court later accepted the
case for review on a grant-and-hold basis. In April 2022, the cause was transferred back
to this court with directions to vacate the Thomas II decision and reconsider the appeal in
light of People v. Tirado, supra, 12 Cal.5th 688. The parties have since filed
supplemental briefs, and the matter has now been submitted.
DISCUSSION
Section 12022.53 provides for sentencing enhancements based on a defendant’s
personal use of a firearm in the commission of specified felonies. There is a 10-year
enhancement for the personal use of a firearm (id., subd. (b)); a 20-year enhancement for
the personal and intentional discharge of a firearm (id., subd. (c)); and a 25-year-to-life
enhancement for the personal and intentional discharge of a firearm causing great bodily
injury or death (id., subd. (d)). Trial courts may, “in the interest of justice pursuant to
Section 1385 …, strike or dismiss an enhancement otherwise required to be imposed by”
section 12022.53. (Id., subd. (h).)
In People v. Morrison (2019) 34 Cal.App.5th 217, Division Five of the First
Appellate District concluded trial courts have “discretion to impose an enhancement
under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime
enhancement under section 12022.53, subdivision (d), if such an outcome [is] found to be
in the interests of justice under section 1385.” (Id. at p. 223.) This district reached a
different conclusion in People v. Tirado (2019) 38 Cal.App.5th 637, which was later
reversed by People v. Tirado, supra, 12 Cal.5th 688. The high court’s decision holds that
“Morrison correctly described the scope of a trial court’s sentencing discretion under
4.
section 12022.53.” (People v. Tirado, supra, 12 Cal.5th at p. 697.) “To summarize:
When an accusatory pleading alleges and the jury finds true the facts supporting a section
12022.53(d) enhancement, and the court determines that the section 12022.53(d)
enhancement should be struck or dismissed under section 12022.53(h), the court may,
under section 12022.53(j), impose an enhancement under section 12022.53(b) or (c).”2
(Id. at p. 700.)
The People concede defendant is entitled to resentencing. We accept the
concession. “Relief from a trial court’s misunderstanding of its sentencing discretion is
available on direct appeal when such misapprehension is affirmatively demonstrated by
the record.” (People v. Leon (2016) 243 Cal.App.4th 1003, 1026.) The appealed
judgment was pronounced on January 3, 2019, which was 14 weeks prior to the
publication of People v. Morrison, supra, 34 Cal.App.5th 217. The district disagreed
with Morrison in a published opinion issued in August 2019, and the California Supreme
Court did not resolve the split of authority until January of this year. Therefore, the trial
court could not have known the scope of its discretion under section 12022.53 during the
proceedings following Thomas I. Given the trial court’s stated willingness to consider
sentencing defendant to a determinate prison term of 29 years if it had discretion to do so,
“the appropriate remedy is to remand for resentencing.” (People v. Gutierrez (2014) 58
Cal.4th 1354, 1391.)
2 “Section 12022.53(j) is the subdivision that authorizes the imposition of enhancements
under section 12022.53. It provides that for the penalties in section 12022.53 to apply, the
existence of any fact required by section 12022.53(b), (c), or (d) must be alleged in the
accusatory pleading and admitted or found true. Therefore, the question [considered by the
California Supreme Court was] not whether section 12022.53(h) authorizes the court to change,
modify, or substitute an enhancement. Rather, it [was] whether section 12022.53(j) authorizes
the court to impose an enhancement under section 12022.53(b) or (c) after striking a section
12022.53(d) enhancement.” (People v. Tirado, supra, 12 Cal.5th at p. 700.)
5.
DISPOSITION
Defendant’s sentence is ordered vacated and the cause is remanded for a new
sentencing hearing. On remand, the trial court shall consider all options under section
12022.53 and all other sentencing guidelines under current law. The judgment is
otherwise affirmed.
6.