People v. Cox CA2/2 ( 2022 )

Filed 8/3/22 P. v. Cox CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B314658
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA368517)
v.
ALLEN COX,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed.
Verna Wefald, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Allen Cox (defendant) appeals
from the amended judgment entered after the trial court
substituted a firearm enhancement in place of one requiring a
longer period of incarceration on one of the attempted murder
counts but not the other. Defendant contends that the trial court
abused its discretion by failing to properly consider his young age
at the time his crimes were committed. We conclude that
defendant failed to meet his burden of demonstrating an abuse of
discretion. Accordingly, we affirm the judgment.
BACKGROUND
Prior proceedings
Defendant and two codefendants were charged with two
counts of attempted murder, counts 1 and 6, and other felony
counts after firing weapons toward several people in 2010, hitting
one of them in the knee. Defendant and codefendant Getz
Anderson were tried together in 2011. The jury found defendant
guilty of possession of a firearm by a felon (count 3), found
Anderson guilty of possession of an assault weapon (count 4), and
found true the gang allegation pursuant to Penal Code1 section
186.22 subdivision (b), as to both counts. The jury was unable to
reach verdicts on the remaining counts. A mistrial was declared,
count 2 (a violation of Veh. Code, § 10851, subd. (a)) was
dismissed, and a retrial on counts 1, 5, and 6 (which the court
renumbered counts 1, 2, and 3 on the verdict forms) was ordered.2
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 To avoid confusion, we will refer to renumbered counts 2
and 3 by referring first to the original number followed by the
retrial number in parentheses as follows: count 5(2) and count
2
At retrial in 2013, defendants were convicted of the
attempted murder of Steve Farias (count 1), and of “John Doe”
(count 6(3)) in violation of sections 664 and 187, subdivision (a),
and of shooting at an inhabited dwelling in violation of section
246 (count 5(2)). With regard to counts 1 and 6(3), the jury found
true the special allegations that a principal personally used a
firearm within the meaning of section 12022.53, subdivisions (b),
(c) and (e); and as to all three counts, the jury found true the
allegation that the offenses were committed for the benefit of, at
the direction of, or in association with a criminal street gang, as
alleged under section 186.22, subdivision (b). The jury found that
the attempted murders were committed willfully, deliberately
and with premeditation within the meaning of section 664,
subdivision (a); that a principal, personally and intentionally
discharged a firearm, which proximately caused great bodily
injury within the meaning of section 12022.53, subdivisions (d)
and (e)(1); and that a principal personally and intentionally
discharged a firearm within the meaning of section 12022.53,
subdivisions (c) and (e)(1).
Defendant was sentenced in September 2013 to two
consecutive life terms in prison for the attempted murders, plus a
consecutive firearm enhancements of 25 years to life, with the
remaining firearm enhancements stayed. As to count 5(2),
shooting at an inhabited dwelling, the court imposed a term of 15
years to life and stayed the term under section 654. For original
count 3, felon in possession of a firearm, the court imposed the
high term of three years plus a gang enhancement of four years
6(3). As the original count 3, possession of a firearm by a felon
was not renumbered, we refer to it as original count 3.
3
to run concurrently with the terms imposed for the attempted
murder counts.
After we affirmed the judgment the California Supreme
Court granted review and in 2019 transferred the matter back to
this court with instructions to vacate our prior decision and
reconsider the cause in light of People v. Canizales (2019) 7
Cal.5th 591. After reconsideration, we again affirmed the
judgment, but remanded to give the trial court the opportunity to
exercise discretion whether to strike firearm enhancements
imposed under section 12022.53. (See People v. Anderson
(Dec. 12, 2019, B251527) [nonpub. opn.].) Section 12022.53,
subdivision (h) had recently been amended to give the trial court
such discretion in the interest of justice pursuant to section 1385.
(See Stats. 2017, ch. 682, § 2.)
Current proceedings
On remand the trial court appointed defense counsel, who
filed a motion to strike the firearm enhancements. The motion
suggested mitigating factors based upon defendant’s age at the
time of the crimes (21 years), his traumatic childhood, his
supportive family, his relationship with his two children, and his
progress toward rehabilitation. Attached as exhibits were
certificates of completion for a 2020 anger management course;
high school equivalency in 2017; a 12-week story-telling program
in 2019; and evidence of participation in adult education, mental
health coping skills, and GED classes. The motion was heard by
the same judge who had presided over defendant’s retrial.
Defendant testified at the hearing on the motion as follows:
“I would just like to ask the court if they could
take into consideration before making its decision
today that I take responsibility for my actions. I was
young. I was careless. I didn’t understand the
4
impact and magnitude of the damage I was causing
the victim, my community, my family, my daughters,
and myself.
“And as I was into my prison sentence, six
years into it, I began to grow and productively
rehabilitate myself. I’ve taken numerous self-help
groups. I passed the G.E.D. I’m currently involved
in criminal gang anonymous groups. I’m no longer
involved or belong to any gang. I’m in the process of
being certified as a welder. I’m continuing to pay my
restitution through my maintenance mechanic job
that I have.
“I went from a level 4 prison to on my way to a
level 2 prison in December.
“And, you know, this is my first time in prison.
I have given over 11 years of my life for my
wrongdoing, and all I’m just asking for the court is if
I can just get another chance at becoming a
productive citizen.”
The trial court declined to strike the firearm
enhancements. Instead, the court resentenced defendant on the
enhancements in count 6(3) by imposing one 10-year
enhancement pursuant to section 12022.53, subdivision (b) in
place of the 25-year enhancement previously imposed pursuant to
subdivisions (d) and (e)(1). The court explained its ruling as
follows:
“I gave a lot of thought to this, and largely I’m
leaning with the prosecutor. I’m going to bring out
some more facts.
“First of all, at the time of this shooting
incident the defendant had already been convicted
twice of felonies. In 2007 he was convicted of I
5
believe possession of drugs for sale. In 2008 he was
convicted of felon with a firearm.
“He made some very telling comments both
during the shooting itself and after the shooting.
During the shooting, he went over and—let me just
see—he yelled, ‘Fuck these fools.’ So there’s no doubt
that this was a heartless, callow attack on an
unarmed young man.
“By the way, just to set the scene, there were
five people sitting in a backyard, they were just
sitting there in the backyard, and Mr. Cox and
Mr. Anderson drove by the place once, then parked
nearby. They ran up, and they just started shooting
at these people. [¶] [T]he people in the backyard
were not gang members. They were just young men,
and they shot at them.
“[T]he good news is that Cox and Anderson
were not good shots, and that Anderson’s gun
jammed. Anderson had sort of like an Uzi-type gun
that jammed, because based on the testimony at trial,
the bullets or something he was using were not made
for that kind of gun. [¶] And Cox, . . . at least from
what I was able to confirm, he at least fired four
times and hit one person in the leg. [¶] All these
people ran for cover, and, as I said, it was just, I
believe, luck that they didn’t get hit.
“While [Cox and Anderson are] having a
private conversation, as [the prosecutor] indicated,
they put them in a jail cell together, . . . and they
recorded it. And Cox made another statement, and
he was sort of telling—Cox described how he saw
Anderson attempt to shoot the motherfuckers.
“So there’s nothing mitigating about the
underlying facts of this case. You basically have
6
predators hunting people with high-powered
weaponry for no reason other than, I believe, they
were in a rival gang area. So they thought that they
were going to get some kind of glory by shooting
people in a rival gang area.
“And 21 years, 4 months, I mean, I’m just not
convinced by that argument that he’s not old enough
to be responsible for his conduct.
“Also, this whole thing about the gang thing,
while it has a nice ring to it that if you grow up in a
neighborhood where you don’t have as many chances
you end up in a gang, it certainly doesn’t follow that
if you end up in a gang that you’re going to shoot
people, unarmed, with high-powered weaponry for no
other reason than they’re sitting in their backyard.
“So all of that goes against Mr. Cox.
[¶] . . . [¶]
“. . . And the other, I guess, thing that I
considered is, while he had some record in the prison
and there’s some mitigation based on that, it’s not
like the greatest record I’ve seen in terms of people
that, you know, what they can do in prison, but it’s
certainly a good start.
“Anyway, what I was originally going to do and
what I had written as my original decision, and the
mitigating factors as detailed by the defense—his
age, lack of judgment, his bad childhood—and then
weigh the underlying facts of the cause of the case,
his underlying criminal history, the court would find
it very difficult to find it would be in the interest of
justice to strike the gun enhancements in this case. I
fully recognize the discretion I have and I have
chosen not to exercise it for the reasons given.”
7
On July 14, 2021, the trial court dismissed from count 6(3)
the section 12022.53, subdivisions (d) and (e)(1) allegation, and
imposed an enhancement of 10 years pursuant to section
12022.53, subdivisions (b) and (e), making the sentence on count
6(3) life in prison plus 10 years. The court explained: “. . . I do
want to recognize that people can change. I saw the documents
submitted by defense counsel. I do believe he’s legitimately
making efforts to change himself.” All other terms of the
sentence remained as previously entered.
Defendant filed a timely notice of appeal from the
judgment.
DISCUSSION
Section 12022.53, subdivision (h) was amended effective
January 1, 2018, to provide: “The 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. The authority provided by this
subdivision applies to any resentencing that may occur pursuant
to any other law.” (Stats. 2017, ch. 682, § 2.)
Defendant contends that the trial court abused its
discretion by denying that being 21 years old at the time of the
crime is a mitigating factor.3 Defendant recognizes that he bears
3 As amended effective March 14, 2022, California Rules of
Court, rule 4.423(b)(6) states the following mitigating factor:
“The defendant is under 26 years of age, or was under 26 years of
age at the time of the commission of the offense.” At the time
that defendant’s motion to strike the firearm enhancements was
heard and now, factors in mitigation have also included
circumstances that “reasonably relate to the defendant or the
8
the burden to demonstrate an abuse of discretion and to do so, he
must “ ‘clearly show that the sentencing decision was irrational
or arbitrary.’ (People v. Carmony (2004) 33 Cal.4th 36[7], 376.)”
Defendant argues that that the trial court refused to recognize or
agree that a 21-year-old offender could be as immature as an 18-
year-old and thus was unaware of the scope of its discretion in
this regard.
“When being sentenced, a defendant is entitled to decisions
made by a court exercising informed discretion. (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.) A court acting while
unaware of the scope of its discretion is understood to have
abused it. (People v. Carmony (2004) 33 Cal.4th 367, 378.)”
(People v. Tirado (2022) 12 Cal.5th 688, 694.)
We agree with respondent that the trial court was aware of
the scope of its discretion in considering defendant’s age as a
mitigating factor. The court stated that it had read all defense
documents. Defendant’s written arguments included references
to scientific papers regarding brain development and criminal
behavior. In addition the court heard defense counsel’s argument
that the studies show the brain is not fully developed until age
25, and the Legislature had provided a beneficial consideration
for parole for those under 25.
The trial court indicated that it had given this case a lot of
thought and considered youth as a mitigating factor, but found it
harder to give a special benefit to a person aged 21 years four
months at the time of the crimes than to a person of 18 years and
younger, given that people serve in the military and do all kinds
circumstances under which the crime was committed.” (Rule
4.423(c).)
9
of amazing things at the age of 21. The court later indicated that
it had prepared a decision refusing to strike the enhancements
altogether after considering the mitigating factors detailed by the
defense, including defendant’s age, lack of judgment, his bad
childhood, and weighing them against the underlying facts of
defendant’s case and his two prior felony criminal history. The
court noted the more egregious facts of the case: five people who
were not gang members were sitting in a backyard when
defendant and Anderson drove by, parked, ran up and started
shooting; and later in a recorded jailhouse conversation,
defendant described how he saw Anderson trying to shoot the
“motherfuckers.” The court referred to defendant and Anderson
as “predators hunting people with high-powered weaponry for no
reason than . . . they were in a rival gang area.”
The court’s comments disclose that it recognized
defendant’s age as a possible mitigating factor. The court found
in effect that it was outweighed by defendant’s “commit[ing] to
killing people for no other reason than they were in a different
neighborhood and might be rival gang members,” shooting people
in their backyard because they were different. “‘Sentencing
courts have wide discretion in weighing aggravating and
mitigating factors [citations], and may balance them against each
other in “qualitative as well as quantitative terms” [citation] . . . .
We must affirm unless there is a clear showing the sentence
choice was arbitrary or irrational.’” (People v. Avalos (1996) 47
Cal.App.4th 1569, 1582.)
It is not irrational to differentiate between the culpability
of a 17-year-old and someone 21 years old. (See People v. Hoyt
(2020) 8 Cal.5th 892, 953 [prosecutor’s argument to jury at
penalty phase not to consider age was not misconduct].) And
10
defendant failed to show the trial court’s weighing of this factor
was irrational in this instance. Defendant has pointed to no
evidence of his immaturity, nor presented a professional
evaluation of his maturity, mental or emotional capacity. We
thus cannot conclude that giving less weight to defendant’s age
than the facts of the crime was an abuse of discretion.4
DISPOSITION
The judgment is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
4 To the extent defendant’s contention is that the trial court
ruled that defendant’s age of 21 years could never be a mitigating
factor in any case, defendant would essentially be arguing that
the ruling is ambiguous. If so, defendant was required to seek
clarification in the trial court. As he did not, the claim may not
be raised for the first time on appeal. (See People v. Scott (1994)
9 Cal.4th 331, 351, 353.)
11