People v. Burney CA4/1 ( 2022 )

Filed 7/15/22 P. v. Burney CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079646
Plaintiff and Respondent,
v. (Super. Ct. No. SCD238174)
TIFFANY NICOLE BURNEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Eugenia Eyherabide, Judge. Remanded with instructions.
Lynda A. Romero, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Andrew
Mestman, and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and
Respondent.
Tiffany Nicole Burney contends that this court must remand this case
for resentencing to allow the trial court to exercise its new discretion to
possibly select an uncharged, lesser firearm enhancement as explained by the
California Supreme Court in People v. Tirado (2022) 12 Cal.5th 688 (Tirado).
Additionally, Burney contends, and the Attorney General agrees, that
pursuant to Assembly Bill No. 1869 (Assembly Bill 1869), as of July 1, 2021,
Burney is no longer required to pay a $154 criminal justice administrative
fee.
In light of Tirado, we conclude that this case should be remanded for
resentencing to allow the trial court to consider exercising its discretion to
modify Burney’s Penal Code1 section 12022.53, subdivision (d) enhancement
to a lesser enhancement. We also determine that, under Assembly Bill 1869,
Burney is no longer required to pay any of the $154 criminal justice
administrative fee to the extent that she had not paid it as of July 1, 2021.
Accordingly, we will remand the matter for resentencing with instructions to
vacate the criminal justice administrative fee and amend the abstract of
judgment as necessary.
I
FACTUAL AND PROCEDURAL BACKGROUND
In December 2011, Burney shot her great aunt four times killing her.2
The prosecutor charged her with one count of murder under section 187,
subdivision (a), with an additional firearm enhancement for intentionally and
personally discharging a firearm causing death under section 12022.53,
subdivision (d). Prior to trial, the court held a mental competency hearing,
found Burney mentally incompetent to stand trial, and ordered her
1 Statutory references are to the Penal Code unless otherwise specified.
2 The underlying facts of this conviction are not relevant to this appeal.
Accordingly, we eschew the traditional factual background of the charged
crimes.
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commitment to a state hospital. A year later, the court held a second mental
competency hearing, found her mentally competent to stand trial, and
reinstated her criminal proceedings.
At trial, Burney entered a not guilty plea by reason of insanity. At the
guilt phase, the jury found her guilty of the murder count and found true the
firearm enhancement. However, at the sanity phase, the court declared a
mistrial due to a hung jury. Two years later, a second jury found Burney
sane at the time of the commission of the murder.
The court sentenced Burney to prison for 50 years to life, comprised of
the following: 25 years to life for the murder conviction and an additional
consecutive 25 years to life for the section 12022.53, subdivision (d) firearm
enhancement. In addition, the court ordered her to pay a $154 criminal
justice administrative fee pursuant to Government Code section 29550.
Burney appealed her conviction and this court affirmed the judgment
but remanded for resentencing for the limited purpose of considering whether
to strike, dismiss, or impose the section 12022.53, subdivision (d) firearm
enhancement sentence. At resentencing, Burney’s counsel requested the
court strike the section 12022.53, subdivision (d) firearm enhancement.
However, counsel did not ask the trial court to consider imposing a lesser
firearm enhancement.
The court denied Burney’s request to strike the enhancement and
imposed the additional 25 years to life term. During resentencing, the court
stated that it “never takes lightly when it sentences anybody to 50 years to
life.” The court further emphasized that “it is warranted to have the
additional 25 years to life because [Burney’s] conduct of shooting [the victim]
in the manner in which [Burney] did and the facts and the circumstances of
which [Burney] did.” The court specifically considered that Burney knew the
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victim was home alone, she went to great efforts to obtain a gun, she
continued to be a danger to others, she acquired subsequent rule violations in
custody3, and she maintained a disruptive attitude throughout court
proceedings.
After our high court issued its opinion in Tirado, supra, 12 Cal.5th 688,
Burney timely appealed, asking this court to remand this matter for
resentencing.
II
DISCUSSION
As a threshold matter, the Attorney General argues that Burney’s
request for remand is forfeited because her counsel did not ask the trial court
to consider imposing a lesser enhancement at resentencing. In the
alternative, the Attorney General argues that, on the merits, Burney’s
request for remand is futile because the record is clear that the trial court
would not have exercised its discretion to impose a lesser enhancement under
Tirado.
Regarding the criminal justice administrative fee, the Attorney General
concedes that, as of July 1, 2021, Burney is no longer required to pay that fee
pursuant to Assembly Bill 1869. We consider each issue in turn.
A. Legal Standards
Section 12022.53 established a three-tiered system for firearm
enhancements that applies to defendants who use firearms during the
commission of certain felonies. (§ 12022.53.) First, a defendant who
3 In May 2017, Burney approached a corrections officer with closed fists
forcing the officer to push her away. In March 2019, Burney punched a
corrections officer in violation of California Code of Regulations, title 15,
section 3005, subdivision (d)(1). In April 2019, Burney spit on a corrections
officer. In January 2020, Burney spit on a nurse.
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“personally uses a firearm” during the commission of a felony is subject to an
additional and consecutive enhancement of 10 years to life. (§ 12022.53,
subd. (b).) Next, a defendant who “personally and intentionally discharges a
firearm” during the commission of a felony is subject to an additional and
consecutive enhancement of 20 years to life. (§ 12022.53, subd. (c).) Finally,
a defendant who “personally and intentionally discharges a firearm and
proximately causes great bodily injury[ ] . . . or death” during the commission
of a felony is subject to an additional and consecutive enhancement of 25
years to life. (§ 12022.53, subd. (d).) Section 12022.53 further provides that a
sentencing court may strike or dismiss an enhancement required by
subdivisions (b), (c), and (d) “in the interest of justice.” (§ 12022.53,
subd. (h).)
Before the California Supreme Court’s recent decision in Tirado, the
question of whether a trial court possessed the discretion to modify a
section 12022.53 firearm enhancement by imposing a lesser enhancement
divided California Courts of Appeal. (Compare People v. Morrison (2019) 34
Cal.App.5th 217, 223 (Morrison) with People v. Tirado (2019) 38 Cal.App.5th
637, 643, review granted November 13, 2019, S257658.) For example, in
Morrison, the court held that a trial court can strike a section 12022.53,
subdivision (d) enhancement and impose a lesser section 12022.53,
subdivision (b) or (c) enhancement instead. (Morrison, at p. 223.) However,
other courts held that section 12022.53 did not authorize a court to
“substitute one enhancement for another.” (People v. Tirado, at p. 643.)
The California Supreme Court recently resolved this split in Tirado by
holding, “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
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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[, subdivisions] (b) or (c).” (Tirado, supra, 12 Cal.5th
at p. 700.) Furthermore, even if the prosecution “did not specifically allege
enhancements under section 12022.53[, subdivisions] (b) or (c), the trial court
could impose those enhancements even when the section 12022.53[,
subdivision] (d) enhancement was not legally or factually inapplicable.” (Id.
at p. 697.)
B. Forfeiture
Generally, “only those claims properly raised and preserved by the
parties are reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354.)
Thus, a party who does not properly raise an issue, typically through an
objection, forfeits that issue on appeal. (See People v. Holman (2013) 214
Cal.App.4th 1438, 1449.) “However, neither forfeiture nor application of the
forfeiture rule is automatic.” (People v. McCullough (2013) 56 Cal.4th 589,
593.) “An appellate court may exercise its discretion to review a claim
affecting the substantial rights of the defendant despite forfeiture for failure
to raise the issue below.” (People v. Denard (2015) 242 Cal.App.4th 1012,
1020.) Furthermore, a reviewing court is “more inclined to find an exception
to the general rule of forfeiture when there has been a change in decisional
law that affects the rights of the parties.” (GreenLake Capital, LLC v. Bingo
Investments, LLC (2010) 185 Cal.App.4th 731, 739, fn. 6 (GreenLake Capital,
LLC).) Similarly, when determining if a defendant’s lack of objection forfeits
an issue on appeal, “Reviewing courts have traditionally excused parties
failing to raise an issue at trial where an objection would have been futile or
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wholly unsupported by substantive law then in existence.4” (People v. Welch
(1993) 5 Cal.4th 228, 237 (Welch).) “ ‘In determining whether the significance
of the change in the law excuses counsel’s failure to object at trial, we
consider the “state of the law as it would have appeared to competent and
knowledgeable counsel at time of the trial.” ’ ” (People v. Perez (2020) 9
Cal.5th 1, 8, quoting People v. De Santiago (1969) 71 Cal.2d 18, 23.)
Here, Burney did not forfeit her right to appeal on the resentencing
issue despite her failure to ask the trial court to impose a lesser enhancement
at resentencing. The Attorney General cites Morrison, supra, 34 Cal.App.5th
at page 220 as indicative that Burney forfeited the resentencing issue because
the court decided Morrison two years before Burney’s resentencing hearing.
In Morrison, the court concluded that a trial court has the discretion to
impose an uncharged, lesser enhancement under section 12022.53. (Id. at
pp. 222-223.) However, as the Attorney General acknowledges, at the time
the trial court considered whether to strike the firearm enhancement, the
question of whether it had the discretion to impose a lesser firearm
enhancement was unresolved. Indeed, this very issue prompted the Supreme
Court’s review in Tirado. (See Tirado, supra, 12 Cal.5th at pp. 696-697.)
Although asking the court to impose a lesser enhancement at the time of
Burney’s resentencing was not “wholly unsupported by substantive law,” the
discretion issue was not well established under California law. (Welch,
4 The Attorney General primarily argues that Burney’s failure to ask the
trial court to impose a lesser enhancement results in a forfeiture of the issue
on appeal. Because failing to raise an argument at the trial court and failing
to object to an issue at the trial court can produce the same legal result on
appeal (forfeiture,) we note the relevant legal standards from forfeiture cases
that arise from a defendant failing to object to an issue at trial and apply
those standards to our analysis in this case.
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supra, 5 Cal.4th at p. 237.) The Court of Appeal in People v. Tirado, supra,
38 Cal.App.5th 637, review granted, for example, reached the opposite
conclusion from the court in Morrison, prompting the Supreme Court’s
review. (Tirado, at p. 697.) In this case, we are “more inclined to find an
exception to the general rule of forfeiture” for Burney’s failure to request a
lesser enhancement at resentencing given the split in authority at the time.
(GreenLake Capital, LLC, supra, 185 Cal.App.4th at p. 739, fn. 6.) Therefore,
Burney’s decision to not ask the court to use its discretion to impose a lesser
enhancement at resentencing falls into the narrow category of exceptions to
the forfeiture rule, and Burney may request a remand for resentencing on
appeal.
C. Remand Is Appropriate for the Trial Court to Consider Whether It Should
Exercise Its Discretion to Impose a Lesser Enhancement
During sentencing, “a defendant is entitled to decisions made by a court
exercising informed discretion.” (Tirado, supra, 12 Cal.5th at p. 694;
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) Consequently,
“A court acting while unaware of the scope of its discretion is understood to
have abused it.” (Tirado, at p. 694; People v. Carmony (2004) 33 Cal.4th 367,
378.) When a trial court sentences a defendant while unaware of the scope of
its discretion, 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 it had such discretion.’ ” (Gutierrez, at
p. 1391, quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)
Here, remand is appropriate because the record does not clearly
indicate that the trial court would not have exercised its discretion had it
known it could modify Burney’s section 12022.53, subdivision (d)
enhancement pursuant to Tirado. The Attorney General argues that the
court’s remarks during resentencing when it upheld Burney’s
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section 12022.53, subdivision (d) enhancement clearly indicate that the court
would not have exercised such discretion. Therefore, the Attorney General
concludes that remand is futile. To this end, the Attorney General points to
the court’s statement that it “never takes lightly when it sentences anybody
to 50 years to life.” Furthermore, the court found that the enhancement was
warranted because of the “facts and circumstances” surrounding the homicide
such that Burney knew the victim was home alone, and she went to great
efforts to obtain a gun. In addition, the court believed imposing the
enhancement was warranted because of her subsequent rule violations in
custody and her disruptive attitude during her court appearances (including
trial).
While these comments highlight the court’s position on the decision to
strike or impose the enhancement altogether, they are not conclusive of
whether remand would be futile if the court knew it had the discretion to
impose a lesser enhancement. For example, at least one appellate court
found that a trial court’s remarks about the egregious nature of the
defendant’s crime, the defendant’s recidivism, and the imposition of
consecutive sentences, two of which the trial court here highlighted as
reasons for upholding Burney’s enhancement at resentencing, “cannot alone
establish what the court’s discretionary decision would have been.” (People v.
McDaniels (2018) 22 Cal.App.5th 420, 427.) Thus, the appellate court
determined it prudent to remand the matter because the record did not
clearly indicate that the trial court would not strike one or more firearm
enhancements. (Ibid.) Here, the court’s statements alone are not sufficient
to “clearly indicate” that the trial court would have imposed the section
12022.53, subdivision (d) enhancement if it knew it had the discretion to
impose a lesser enhancement. (See Gutierrez, supra, 58 Cal.4th at p. 1391.)
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The statements highlighted by the Attorney General merely illustrate the
court’s reasoning as to whether it should entirely impose or strike Burney’s
section 12022.53, subdivision (d) enhancement.
Simply put, there is nothing in the record to show that, given the choice
to impose either of the lesser firearm enhancements under section 12022.53,
subdivision (b) or (c), the trial court would have imposed the same sentence
when it believed it only had the binary choice to dismiss or impose the
section 12022.53, subdivision (d) enhancement. Furthermore, even when the
record reflects that the resentencing court “understood that they had some
discretion in sentencing,” the record still needs to clearly indicate that the
court “would have imposed the same sentence had they been aware of the full
scope of their discretion.” (Gutierrez, supra, 58 Cal.4th at p. 1391.) Here, the
court at resentencing acknowledged that it had “discretion not to impose that
25 year to life [enhancement,]” yet there is no indication that the court
realized it had the option to impose a lesser firearm enhancement. Thus, we
conclude that remand for resentencing is appropriate in this case.
D. Criminal Justice Administrative Fee
Pursuant to Assembly Bill 1869, Government Code section 6111
repealed Government Code section 29550 in part to “eliminate all
outstanding debt incurred as a result of the imposition of administrative
fees.” (Assem. Bill No. 1869 (2019-2020 Reg. Sess.) § 2; Gov. Code, §§ 6111,
29550.) Government Code section 6111 provides, “On and after July 1, 2021,
the unpaid balance of any court-imposed costs pursuant to Section 27712,
subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and
29550.3, as those sections read on June 30, 2021, is unenforceable and
uncollectible and any portion of a judgment imposing those costs shall be
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vacated.” (Gov. Code § 6111, subd. (a).) It further specifies that, “This
section shall become operative on July 1, 2021.” (Gov. Code § 6111, subd. (b).)
In People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953 (Lopez-Vinck),
the court interpreted Assembly Bill 1869 and held that “[b]y specifying the
precise date on which the costs that have been imposed . . . become
unenforceable and uncollectible, the Legislature made clear that any
amounts paid prior to that time need not be vacated.” The court further held
that the defendant was not entitled to a vacatur of all fees the defendant paid
prior to July 1, 2021. (Ibid.) However, the defendant received a vacatur of
the criminal justice administrative fee that remained unpaid as of July 1,
2021, and the court instructed the trial court to modify the judgment
consistent with the vacatur. (Ibid.)
At sentencing, the trial court ordered Burney to pay a $154 criminal
justice administrative fee pursuant to Government Code section 29550. The
parties acknowledge that, under Assembly Bill 1869, as of July 1, 2021,
Burney’s unpaid balance of $154 became “unenforceable and uncollectible.”
(Lopez-Vinck, supra, 68 Cal.App.5th at p. 951.) We agree with the parties.
Therefore, on remand, we instruct the trial court to vacate the $154 criminal
justice administrative fee and amend the abstract of judgment accordingly.
DISPOSITION
We remand this case to the trial court with instructions to conduct a
new sentencing hearing so the trial court may consider exercising its
discretion in accordance with Tirado. We offer no opinion as to the results of
that resentencing. We further instruct the trial court to vacate any portion of
the $154 criminal justice administrative fee that was not paid before July 1,
2021. Following the resentencing hearing, the court is to prepare an
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amended abstract of judgment and forward it to the California Department of
Corrections and Rehabilitation.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
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