People v. Tinsley CA3 ( 2021 )

Filed 3/9/21 P. v. Tinsley CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C087871
Plaintiff and Respondent, (Super. Ct. No. 16FE016082)
v.
DASHAWN KWAMA TINSLEY et al.,
Defendants and Appellants.
A jury found defendants Dashawn Kwama Tinsley and RV Allahali Watson guilty
of one count of murder and three counts of attempted murder and found true allegations
that both defendants personally and intentionally discharged firearms in the commission
of the offenses. The trial court sentenced Tinsley to an aggregate indeterminate term of
121 years to life consecutive to a determinate term of 20 years and—after finding true the
allegation that Watson suffered a prior serious felony conviction—sentenced Watson to
an aggregate indeterminate term of 167 years to life, consecutive to a determinate term of
40 years.
Tinsley argues: (1) we must remand for the trial court to exercise its discretion to
strike the firearm enhancements (pursuant to a law that became effective seven months
1
before Tinsley was sentenced), because the record affirmatively shows the trial court was
unaware it had such discretion; and (2) in the alternative, trial counsel provided
ineffective assistance by failing to ask the trial court to strike the firearm enhancements.
We disagree with those contentions.
Watson argues we must remand to permit the trial court to exercise its discretion
to strike one or more of the five-year prior serious felony enhancements it imposed,
because of changes to the law while this appeal was pending.
We agree with this contention.
Finally, both defendants argue we must strike a fee the trial court imposed. The
People agree. We accept the People’s concession and will strike the fee.
BACKGROUND
Factual and Procedural Background
We provide only the background necessary for resolution of this appeal.
On December 24, 2015, defendants each used a handgun to fire multiple shots at a
victim, who survived. They laughed about the shooting immediately afterwards. A few
days later, defendants each used a handgun to fire multiple shots into a car with three
occupants, killing one person, and injuring a second.
On June 5, 2018, a jury found defendants guilty of one count of murder and three
counts of attempted murder. (Pen. Code, §§ 187, 664.)1 The jury found true allegations
that each defendant personally used and intentionally discharged a firearm in the
commission of the crimes. (§ 12022.53, subds. (b)-(d).)
In anticipation of an August 24, 2018, sentencing hearing, Tinsley’s counsel filed
a “social history” report detailing Tinsley’s childhood, and Watson’s counsel filed a
“sentencing memorandum” that asked the trial court to exercise its discretion to strike the
firearm enhancements.
1 Further undesignated statutory references are to the Penal Code.
2
At the hearing, after the trial court found true the allegation that Watson suffered a
prior serious felony conviction, and announced that “[t]he matter [was] on for the
imposition of judgment and sentence for both defendants,” Watson’s counsel requested
the trial court continue Watson’s sentencing so that she could “file a Romero motion.”2
The trial court granted Watson’s request, and proceeded to Tinsley’s sentencing.
The trial court said Tinsley’s crimes were “appalling,” and reflected “a total
disregard for human life,” as Tinsley “basically hunted down” his four victims, all of
whom “easily” could have been killed. The trial court imposed an aggregate
indeterminate sentence of 121 years to life consecutive to a determinate term of 20 years,
consisting of: for each of the three attempted murders, consecutive terms of seven years
to life, for a total of 21 years to life; for the gun enhancements, three consecutive terms of
25 years to life for the three offenses that caused great bodily injury (§ 12022.53, subd.
(d)), and a consecutive term of 20 years for the unharmed attempted murder victim
(§ 12022.5, subd. (c)); and for the murder, a consecutive term of 25 years to life.
Regarding costs, the trial court ordered Tinsley to pay a $10,000 restitution fine
(§ 1202.4, subd. (b)), county jail administrative fees of $402.38 and $99.19 (Gov. Code,
§ 29550.2), a court security fee of $160 ($40 per offense) (§ 1465.8), and a conviction
assessment of $120 ($30 per offense) (Gov. Code, § 70373). The trial court also imposed
a “20 percent criminal impact fee,” and reserved the issue of victim restitution.
At Watson’s sentencing hearing, held one month later, the trial court denied the
Romero motion to strike the prior serious felony, explaining that Watson’s conduct had
“escalated tremendously” since his prior strike conviction, noting that he “easily” could
have killed four people, having showed “a total disregard for the law and authority” and a
“complete disregard for the value of human life.” Watson’s “conduct [was] exactly what
the Three Strikes Law was designed for,” the trial court emphasized.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3
The trial court also denied Watson’s request to strike the gun enhancements,
noting “the gun use in this case was egregious.”
The trial court imposed an aggregate indeterminate term of 167 years to life,
consecutive to a determinate term of 40 years, consisting of: for each of the three
attempted murders, consecutive terms of seven years to life, doubled for the prior strike,
for a total of 42 years to life; for the murder, a consecutive term of 25 years to life,
doubled to 50 years; for the gun enhancements, three consecutive terms of 25 years to life
for the three offenses that caused great bodily injury (§ 12022.53, subd. (d)), and a
consecutive term of 20 years for the unharmed attempted murder victim (§ 12022.5, subd
(c)); and, for each offense, a five-year enhancement (§ 667, subd. (a)), for another 20
years.
Regarding costs, as with Tinsley, the trial court ordered Watson to pay a $10,000
restitution fine (§ 1202.4, subd. (b)), county jail administrative fees of $402.38 and
$99.19 (Gov. Code, § 29550.2), a court security fee of $160 ($40 per offense) (§ 1465.8),
and a conviction assessment of $120 ($30 per offense) (Gov. Code, § 70373). The trial
court also imposed a “20 percent criminal impact fee.”
Defendants filed timely notices of appeal.
Recent Changes to Sentencing Statutes
Senate Bill No. 620 (2017-2018 Reg. Sess.), which went into effect on January 1,
2018, amended section 12022.53 to remove the bar on striking a firearm enhancement
and grants the trial court discretion pursuant to section 1385 to strike or dismiss an
enhancement. (Stats. 2017, ch. 682, §§ 1-2) “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.”
(§ 12022.53, subd. (h).)
4
Senate Bill No. 1393 (2017-2018 Reg. Sess.), which went into effect on January 1,
2019, amended sections 667, subdivision (a) (Stats. 2018, ch. 423, § 64), and 1385,
subdivision (b) (Stats. 2018, ch. 1013, § 2), to allow a trial court to exercise its discretion
to strike or dismiss a prior serious felony enhancement for sentencing purposes.
DISCUSSION
I
Tinsley’s Firearm Enhancements
Tinsley argues we must remand for the trial court to exercise its discretion to strike
the firearm enhancements pursuant to Senate Bill No. 620, because the record
“affirmatively shows that the trial court was unaware of its discretion to strike” those
enhancements when it sentenced Tinsley.
The People respond that, because the record is “silent,” we must presume the trial
court was aware of its discretion to strike the firearm enhancements. The People further
maintain that the trial court’s decision not to strike the firearm enhancements at Watson’s
sentencing hearing, one month after Tinsley’s sentencing hearing, “suggest[s] that the
court was aware” of its discretion “all along.”
We conclude the record does not affirmatively show the trial court was unaware of
its discretion to strike Tinsley’s firearm enhancements. Rather, the record suggests the
trial court was aware of its discretion.
“[U]nless the record affirmatively shows otherwise, a trial court is deemed to have
considered all relevant criteria in . . . making any . . . discretionary sentencing choice.”
(People v. Weaver (2007) 149 Cal.App.4th 1301, 1318, overruled on another ground in
People v. Cook (2015) 60 Cal.4th 922, 935, 939.) “[W]e may not assume the court was
unaware of its discretion simply because it failed to explicitly refer to its alternative
sentencing choices.” (People v. Weddington (2016) 246 Cal.App.4th 468, 492.)
“On a silent record, we presume the trial court” exercised its sentencing discretion;
a presumption that “is a logical extension of the rule ‘concerning the presumption of
5
regularity of judicial exercises of discretion apply[ing] to sentencing issues.’ ” (People v.
Burnett (2004) 116 Cal.App.4th 257, 261.)
Here, Tinsley’s sentencing occurred seven months after Senate Bill No. 620
became effective, and though the trial court did not explicitly refer to its discretion to
strike the firearm enhancements, the record does not affirmatively show the trial court
was unaware of that discretion. Indeed, before the August 2018 hearing at which both
Tinsley and Watson were to be sentenced, Watson filed a pleading asking the trial court
to exercise its discretion to strike firearm enhancements. Though the trial court denied
that request in September 2018, the record indicates the trial court was prepared to
sentence Watson at the August 2018 hearing, and therefore that the trial court had read
Watson’s pleading. Thus, consistent with the presumption of regularity, the record
suggests the trial court was aware of its discretion to strike the firearm enhancements at
the August 2018 hearing when it sentenced Tinsley. Even without the Watson pleading,
the record is, at most, “silent.”3
We conclude no remand is required.
II
Tinsley’s Ineffective Assistance of Counsel Claim
Tinsley raises the alternative argument that his trial counsel provided ineffective
assistance in failing to request the trial court strike the firearm enhancements. The
People disagree.
We reject this claim.
3 In his opening brief, Tinsley argued the probation report “indicated that the
firearm enhancements were mandatory,” but—after considering the People’s response to
that point, which Tinsley acknowledged was “correct”—Tinsley argued the probation
report had a “clear implication” the trial court “lack[ed] . . . discretion to strike” the
firearm enhancements.
An incorrect “implication” in a probation report (that the trial court may not have
had discretion), does not amount to an affirmative showing the trial court was unaware of
its sentencing discretion.
6
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 (Strickland); People v.
Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) A reviewing court may reject a
claim of ineffective assistance of counsel without addressing both components if a
defendant makes an insufficient showing as to either prong. (Strickland, 466 U.S. at
p. 697.)
“ ‘Surmounting Strickland’s high bar is never an easy task.’ ” (Harrington v.
Richter (2011) 562 U.S. 86, 105 (Richter).) This is because “[a]n ineffective-assistance
claim can function as a way to escape rules of waiver and forfeiture and raise issues not
presented at trial . . . .” (Ibid.) Thus, we apply the Strickland standard “with scrupulous
care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process
the right to counsel is meant to serve.” (Ibid.) To that end, “if the record ‘ “sheds no
light on why counsel acted or failed to act in the manner challenged,” ’ we must reject the
claim ‘ “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” ’ ” (People v. Caro (2019) 7 Cal.5th
463, 488.)
To show prejudice, defendant must show a reasonable probability of a more
favorable result had counsel’s performance not been deficient. (Strickland, supra,466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d 171 at pp. 217-218.) “The
likelihood of a different result must be substantial”—showing the errors had some
conceivable effect on the outcome is insufficient. (Richter, supra, 562 U.S. at pp. 104,
112.)
Here, even assuming for the sake of argument that trial counsel’s performance was
constitutionally deficient, Tinsley has not demonstrated a reasonable probability of a
more favorable result.
7
Tinsley’s “prejudice” argument is that “[t]he trial court had a large range of
options,” and “could have imposed a sentence as low as 46 years” “if all of the
enhancements were stricken but all counts still run consecutive.” But this explains
merely what was possible or conceivable; not what was reasonably probable. (See In re
Welch (2015) 61 Cal.4th 489, 521 [“the prejudice inquiry requires us to examine whether
it is reasonably probable, not merely possible”]; People v. Almanza (2015)
233 Cal.App.4th 990, 1007 [“Strickland speaks not of possibilities, but reasonable
probabilities”].) We conclude Tinsley has not carried his burden and this claim is
rejected.
III
Watson’s Prior Serious Felony Enhancements
Watson argues that, because Senate Bill No. 1393 became effective while his
appeal was pending, we must remand to permit the trial court to exercise its discretion to
strike one or more of the section 667, subdivision (a) five-year enhancements it imposed.
The People contend remanding for resentencing in this case would not be appropriate,
“based upon comments made by the [trial] court at sentencing,” and because the trial
court “gave Watson the maximum sentence.”
We conclude remand is appropriate.4
“ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
4 Watson argues that a decision by the trial court to strike even one of the section
667, subdivision (a) enhancements could affect his “inmate classification or housing.”
Even absent this representation, we would not consider our remand to be an idle act. (See
People v. McDaniels (2018) 22 Cal.App.5th 420, 427 [because “even a very long reduced
sentence may someday be further reduced through other avenues of postconviction relief
or retroactive legislative changes,” a remand for the exercise of sentencing discretion “is
not an idle act just because a defendant may not derive a present practical benefit should
the trial court exercise its discretion in the defendant’s favor”].)
8
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant's record.’ [Citation.] In such circumstances, we have held
that the appropriate remedy is to remand for resentencing 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.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391.)
In People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, the appellate court
refused to remand to allow the trial court to determine whether to dismiss a strike under
section 1385, reasoning that “[u]nder the circumstances, no purpose would be served in
remanding for reconsideration.” (Gutierrez, at p. 1896.) The trial court had stated the
maximum sentence was appropriate, especially since defendant “is the kind of individual
the law was intended to keep off the street as long as possible.” (Ibid.) As such,
reasoned the appellate court, the trial court had “indicated that it would not, in any event,
have exercised its discretion to lessen the sentence.” (Ibid.; see also People v. Chavez
(2018) 22 Cal.App.5th 663, 713-714 [absent a clear indication by the trial court that it
would not have exercised discretion to strike or dismiss a firearm enhancement even if it
had the discretion to do so at sentencing, the appropriate remedy is to remand for
resentencing to allow the trial court to consider whether to exercise its discretion to strike
it].)
Here, during sentencing, the trial court noted that Watson showed “a total
disregard for the law and authority” and a “complete disregard for the value of human
life.” The trial court denied the Romero motion, concluding Watson’s “conduct [was]
exactly what the Three Strikes Law was designed for.” Watson does not dispute the
People’s assertion that the maximum sentence was imposed.
But the denial of Watson’s Romero motion, and what the trial court said when it
denied that motion, is not a “clear indication” of the trial court’s views on the distinct
sentencing issue presented by Senate Bill No. 1393 and the five-year enhancement
9
contemplated by section 667, subdivision (a). (See People v. Bell (2020) 47 Cal.App.5th
153, 200 [the trial court’s statement denying a Romero motion is “only a ‘clear
indication’ of its views on that particular sentencing decision”]; cf. People v. Williams
(2004) 34 Cal.4th 397, 401-405 [discussing the different statutory and policy backdrops
of § 667, subd. (a) and the three strikes law].)
And while the trial court may have imposed the maximum sentence, it made no
statement regarding such imposition. (See People v. Billingsley (2018) 22 Cal.App.5th
1076, 1081 [remanding to permit the trial court to exercise its sentencing, in part, because
“the court did not express an intention to impose the maximum possible sentence”],
italics added.)
Accordingly, we conclude remand is the appropriate remedy to allow the trial
court to exercise its discretion to strike some or all of the prior serious felony
enhancements.
IV
The 20 Percent Criminal Impact Fee
Defendants argue imposition of a 20 percent criminal impact fee was
unauthorized, because no punitive “base fine” was imposed, leaving nothing for the
criminal impact fee to rest on. The People agree. We accept the People’s concession and
will strike this fee.
Section 1465.7, subdivision (a) provides: “A state surcharge of 20 percent shall be
levied on the base fine used to calculate the state penalty assessment as specified in
subdivision (a) of Section 1464.” Section 1464 contemplates “a state penalty in the
amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon
every fine, penalty, or forfeiture imposed and collected by the courts for all criminal
offenses . . . .”
But we agree with the parties that none of the costs imposed by the trial court fall
within the meaning of “fine, penalty, or forfeiture” as used in section 1464. (See
10
§ 1202.4, subd. (e) [“[t]he restitution fine shall not be subject to penalty assessments
authorized in Section 1464”]; People v. Alford (2007) 42 Cal.4th 749, 759 [the court
security fee is not punitive]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112
[conviction assessment is not punitive].)
Accordingly, the 20 percent criminal impact fee must be stricken.
DISPOSITION
As to both defendants, the judgment is modified to strike the 20 percent criminal
impact fee. As to defendant Tinsley, the judgment is affirmed in all other respects. As to
defendant Watson, the cause is remanded so the trial court may consider exercising its
discretion under Senate Bill No. 1393. The clerk of the trial court shall send amended
abstracts of judgment to the Department of Corrections and Rehabilitation.
/s/
HOCH, Acting P. J.
We concur:
/s/
RENNER, J.
/s/
KRAUSE, J.
11