People v. Young CA2/4 ( 2021 )

Filed 4/5/21 P. v. Young CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B294537
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA064957)
v.
REGINALD RAYDELL YOUNG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Charles Chung, Judge. Modified in part;
affirmed in all other respects.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Charles S. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Reginald Young appeals from his conviction for
felony murder, attempted robbery, and burglary. He contends
the court erred by denying his request for a hearing in support of
his petition to disclose juror information. He also urges remand
to allow the trial court to exercise its discretion to strike the
firearm enhancements imposed under Penal Code sections
12022.53 and 12022.5,1 and for a hearing on his ability to pay the
fines and fees imposed at sentencing. Finally, he points out
several errors in the abstract of judgment, sentencing minute
order, and his award of conduct credits, all of which respondent
Attorney General concedes requires correction. We conclude the
trial court did not abuse its discretion in finding appellant had
not established good cause for a hearing on the disclosure of juror
information. Further, we do not find remand warranted for
sentencing or regarding appellant’s ability to pay. We therefore
affirm the judgment and order the trial court to correct errors in
the abstract of judgment and sentencing minute order as detailed
below.
PROCEDURAL HISTORY
An information filed in 2015 and amended in 2017 charged
appellant, Erin Chase2, and Jason West with the murder of Marc
Spinner (§ 187, subd. (a), count one), attempted robbery (§§ 664,
211, count two), and burglary of an inhabited building (§§ 459,
667, subd. (c), count three). The information further alleged
appellant personally used a firearm (§ 12022.53, subds. (b)-(d)
[counts 1-2]; § 12022.5, subd. (a) [count 3]) and that a principal
1All further statutory references are to the Penal Code
unless otherwise indicated.
2Erin Chase is also referred to in the record as Joshua
Chase.
2
was armed with a firearm (§ 12022, subd. (a)(1) [counts 1-3]).
The information also alleged that the murder was committed
while appellant was engaged in the attempted commission of a
robbery (§ 190.2, subd. (a)(17)(A)).
In June 2017, the court declared a mistrial after the jury in
appellant’s first trial declared it was deadlocked. Appellant was
re-tried in October 2018. On October 30, 2018, the jury found
appellant guilty on all three counts. The jury also found true the
firearm allegations under section 12022.53, subdivision (d)
(counts one and two) and section 12022.5, subdivision (a) (count
three), as well as the allegation that appellant committed the
murder during the commission of an attempted robbery.
On December 11, 2018, appellant filed a petition for
disclosure of juror information. The People filed an opposition,
arguing that appellant had not shown good cause for release of
juror information. The court denied the motion.3
The court sentenced defendant to life in prison without the
possibility of parole on count one, plus 25 years to life pursuant to
section 12022.53, subdivision (d). On count two, the court
imposed the upper term of three years, plus 25 years to life
pursuant to section 12022.53, subdivision (d); on count three, the
court imposed the upper term of six years, plus the high term of
10 years pursuant to section 12022.5, subdivision (a). The court
stayed the sentences on counts two and three pursuant to section
654. Appellant timely appealed.
We discuss further details regarding this motion in
3
Discussion Section I below.
3
FACTUAL BACKGROUND
I. Prosecution Evidence
A. The incident
The victim, Marc Spinner, lived in Lancaster, California
with his mother and two brothers, Joshua and Cameron. Early
in the morning on June 28, 2014, deputy Wesley Guthrie of the
Los Angeles County Sheriff’s Department (LASD) responded to a
report of shots fired at the Spinner residence. Guthrie testified
that he entered the home through the open garage and saw bullet
holes in the door leading from the garage into the house. There
was something heavy blocking the door and he could see blood on
the floor, so he and another deputy entered the home through the
front door. In the hallway leading to the garage, the deputies
found Spinner slumped against the door. His hands and feet
looked like they had been bound and there was a safe on the
ground next to him. Spinner was pronounced dead at the scene.
Deputies discovered Cameron asleep in his bedroom. Cameron
testified that he did not hear anything during the incident and
was sleeping with noise cancelling headphones.
B. Investigation
LASD investigators found four gun cartridge cases in the
garage and one in the hallway, and five bullet holes in the door
from the garage into the house. Inside the safe found next to
Spinner, detectives discovered prescription pill bottles;
marijuana; a concentrated form of cannabis called “wax”; and
cash.
For several months, LASD detectives had no potential
suspects. Then, in November 2014, the results from DNA taken
from Spinner’s fingernails showed appellant’s DNA. Appellant
had been arrested in July 2014, about two weeks after the
4
incident, for possession of marijuana for sale and possession of a
handgun. After receiving the DNA results, detectives matched
the gun taken from appellant to the cartridge cases from the
murder scene. Appellant was arrested on December 16, 2014.
Detectives later arrested West and Chase.
Spinner’s autopsy revealed three gunshot wounds: a fatal
wound on the top of the head, one through his left thigh, and a
superficial wound on his abdomen. The parties stipulated at trial
that duct tape on Spinner’s ankle contained DNA of Spinner and
Chase, and nail clippings from Spinner’s hands contained DNA
from Chase and appellant. The parties also stipulated that the
gun recovered from appellant fired the bullet found in Spinner’s
head, as well as the five cartridge cases recovered from the
residence and two expended bullets found inside the home.
C. Appellant’s interviews
LASD detective Louis Aguilera and his partner conducted
two interviews with appellant after he was arrested on December
16, 2014.4 The prosecution played excerpts of the interviews for
the jury.
During the first interview, appellant denied knowing or
recognizing Spinner. He admitted that the gun he had at the
time of his arrest in July was his and said he bought it in mid-
July from a guy known as “G-man.”
A few hours later, during his second interview, appellant
admitted that he heard about Spinner from West, who was his
“wife’s sister’s baby father.” West told appellant that “he knew a
guy that knew how to bake my weed into ‘Wax.’” Appellant told
4 The court found that appellant had validly waived his
rights under Miranda v. Arizona (1966) 384 U.S. 436 at the start
of the interviews.
5
the detectives that on June 27, 2014, he was hanging out with
West and appellant’s cousin, Chase. Around 7:00 p.m., West
suggested that they should meet Spinner because West wanted to
buy some “Xanax bars.” West drove them to Spinner’s house.
Appellant claimed they had not planned to rob Spinner, but that
during the car ride, West told them that Spinner had two safes in
his room. Appellant also said that “before we even got out of the
car it was a discussion with me and [West] about the guy having
stuff in the house. So, I guess you could say yes, we did plan to
rob it.”
After they parked near Spinner’s house, West went in first
to buy the Xanax bars, while Chase and appellant waited in the
car. Once West returned, he told appellant that he could “go in
there and meet the guy,” to see if he would sell appellant some
marijuana, and that Spinner was not a “small time guy.”
Appellant and Chase walked up to the house and saw that the
garage door was partially open. They walked into the garage and
knocked on the door leading from the inside of the garage into the
house. Spinner opened the door and appellant told him they
wanted to talk about buying some weed. Appellant said Spinner
seemed high, and he asked if they wanted to smoke some
marijuana. The three men went to Spinner’s bedroom, smoked
marijuana, and talked. Appellant said that he was looking
around Spinner’s bedroom, but did not see any of the big safes
that West had described, just one little safe. According to
appellant, Spinner “start[ed] getting hysterical” and saying they
were going to rob him. Appellant insisted that was not true.
Appellant had noticed a rifle in the room, and when Spinner
appeared to move toward the rifle, appellant grabbed Spinner.
Appellant grabbed the rifle and threw it on the bed, then Chase
6
started punching Spinner.
Appellant admitted that he had his gun with him. He
stated that at this point he was just trying to leave, and he drew
his gun while Chase duct taped Spinner’s wrists so he would not
come after them. Appellant explained that when things
escalated, he thought “this is obviously getting violent, so I’m like
well, there might be something in the safe so let’s go ahead and
just tie him up.” Then Chase grabbed the safe and left the room.
However, Chase dropped the safe near the garage door. He later
told appellant that he could not open the door and the safe was
too heavy. As appellant was leaving, he was trying to close the
door between the garage and the house, when he saw Spinner
coming around the corner holding the rifle. Appellant fired his
gun through the door back into the house multiple times, then
took off running. He claimed that he did not intend to use his
gun or shoot at anyone, and he did not intend to hit Spinner, but
was “hoping that it would scare him off enough so we could just
leave.” Appellant learned later from West that Spinner had died,
but he thought maybe Spinner was killed in some other incident
“because when I shot, I was on the other side of the door.”
II. Defense Evidence
Appellant testified that he was 25 years old at the time of
the incident. He first learned about Spinner a few days before
the incident, when West mentioned he knew a dealer who might
be a more consistent marijuana supplier. Appellant claimed that
when he met with West and Chase on June 27, 2014, he was
thinking about finding a supplier, not about robbing Spinner.
As they headed to Spinner’s house, West started talking
about how Spinner was “big time,” and had large safes and lots of
money, but appellant just thought West was trying to convince
7
him to meet with Spinner, not to rob him. Appellant testified
that he and Chase entered Spinner’s house through the garage
and knocked on the door. Spinner answered and they explained
who they were, went to his room, talked, and smoked marijuana.
Appellant had his gun with him because he generally carried it
with him. When Spinner became agitated and accused them of
being there to rob him, appellant denied it and tried
unsuccessfully to calm him down. Appellant had noticed a rifle
near the door when they entered the room. As Spinner became
more agitated, appellant thought Spinner was “going for the
rifle,” so appellant grabbed his arm. He could not tell at the time
that the rifle was a BB gun. They started shoving and then
punching each other. Appellant tried to leave but the fight
continued, so he told Chase to grab the duct tape on Spinner’s
dresser and tape Spinner so they could leave. He took out his gun
while Chase was taping Spinner’s wrists, to “get him to be still.”
Appellant explained that when he told police that “I guess
you could say we did plan to rob him,” he meant it could be
perceived that way after the fact, not that he had that intention
at the time. Appellant had agreed with the detectives when they
asked if he decided to rob Spinner during the fight because he
“felt like it was what they wanted to hear.” Appellant noted that
he did not take anything from Spinner’s house and did not tell
Chase to take anything. He claimed he did not see Chase grab
the safe.
Appellant left the room and was trying to close the garage
door behind him when he saw Spinner coming around the corner.
He thought Spinner was holding the rifle and was going to shoot
him, so he “pulled the trigger.” His intention was to scare
Spinner off. He did not know at the time that he had hit him.
8
Appellant also presented two witnesses who testified that
appellant did not have the character for violence or robbery.
DISCUSSION
I. Disclosure of Juror Information
Appellant contends the trial court erred in finding he did
not make a prima facie showing of good cause in support of his
petition for disclosure of juror identifying information. We find
no abuse of discretion and therefore affirm.
A. Background
During a break from the presentation of the defense case at
trial, the court stated that it had received information requiring
inquiry of jurors number 6 and 12. First, the court asked juror
number 6 whether there was anyone associated with the case
who spoke to her. The juror disclosed that “before I knew who
that person was,” she had an interaction with a woman she
believed to be “the grandmother of the first gentleman that
testified [Spinner’s brother Cameron]. . . . I don’t know that for
sure.” Juror number 6 further explained that while waiting in
the court cafeteria to order food, she was standing behind the
woman, “[a]nd she said, ‘the menu is up here.’ And I thought she
was a juror and she said, ‘I’m not a juror.’ And I said, ‘Oh.’ But
she said, ‘it would be improper for me to tell you who I am’ at
that point.” Later on a break, after Cameron testified, another
juror told juror number 6 that she thought the woman from the
cafeteria was Cameron’s grandmother. The juror stated she had
not had any other conversations with this woman. She
responded “no” when asked if there was anything about that
interaction that would cause her to favor one side over the other.
Next, juror number 12 told the court that after hearing
appellant’s police interviews, he realized that he graduated from
9
the same high school at the same time as appellant. The juror
also recognized appellant’s wife when she came into court,
although he said they were not friends or even acquaintances.
The court indicated it did not see an issue with either juror.
Neither side raised an objection and both jurors remained on the
jury.
After trial had concluded, appellant filed a petition for
disclosure of juror information. His counsel asserted that he
needed to communicate with the jurors “for the purpose of
verifying that no discussions about anything not received through
evidence happened,” and that the information might lead to
evidence supporting a motion for a new trial. He noted that the
jury foreperson (juror number 12) attended high school with
appellant and that appellant’s family “asserts that some jurors
were speaking outside with the victim’s family during the trial.”
The People filed an opposition, arguing that appellant had not
shown good cause for release of juror information.
In support of his claim, appellant filed a second motion
requesting access to the court hallway security video footage.
The supervising judge denied the motion, finding that appellant
had not established good cause and that his evidentiary proffer
was “too speculative” to justify the cost and the risk to court
security.
Following denial of appellant’s motion to obtain security
footage, the trial court heard argument regarding appellant’s
motion to discover juror information. Appellant’s counsel stated
that he had spoken with appellant’s family, who indicated there
was an additional contact between juror number 6 and someone
in the victim’s family outside the courtroom. Appellant’s counsel
also noted the relationship previously disclosed by juror number
10
12.
The court recalled the questioning of jurors number 6 and
12 during trial, that juror number 6 stated that the conversation
was brief and “wholly unrelated” to the case, both jurors
confirmed that they could be fair, and both remained on the jury.
The court found that “[t]o go beyond that and say that somehow
because of that improper jury deliberations were had or improper
information was relayed to the jury I think is speculative at best.”
The court then turned to appellant’s new allegations and
inquired whether appellant had supporting evidence regarding
the latest contact. Samantha Maybon, appellant’s mother,
testified that she saw an older lady from Spinner’s family
approach the water fountain on a break and “exchange[ ] words”
with juror number 6, but she did not know what was said.
Maybon also stated, without further detail, that Spinner’s family
member “even approached me before.” Maybon testified that this
interaction occurred prior to the jury verdict, and at the time she
texted appellant’s counsel to inform him. When asked by the
court about the length of the exchange, she initially stated she
did not know, estimating “[m]aybe three minutes.” When the
court noted that “three minutes is a long conversation,” Maybon
replied: “It may have been just a moment. She walked up, they
exchanged some words, and then they walked off.” She also told
the court that “[i]t wasn’t a conversation.” Defense counsel noted
that at the time, he thought Maybon was referring to the contact
in the cafeteria about which the juror had already testified.
Appellant’s wife, Patricia Young, testified that she went to
the bathroom during a break in trial, and saw two of the victim’s
family or friends “discussing the case and how they were happy
that they finally found out what happened” and that they felt
11
sorry for the victim’s mother. Young stated she believed there
were also two jurors in the bathroom at the time.
The court denied the motion. The court found the
conversation relayed by Young to be “pretty innocuous at best. I
don’t see anything remotely wrong with that. I think there is
always some relief when we find out what happened in terms of a
loved one, and to make that statement I don’t think would have
prejudiced anyone one way or the other. As far as feeling sorry
for the mom, I think if it were something more like, you know, we
feel sorry for the mom, she’s older, the victim was the only one
that cared for her. . . . If they went into details like that and then
I can see how the jury would be impacted. But there is always
sympathy in a murder case. . . . And the mere statement of we
feel sorry for the mom with nothing more, I don’t think it is
anything that would impact the jury.”
The court also found the testimony regarding the contact at
the water fountain was “speculative at best.” The court reasoned,
“So on the one hand I was told that it was a three-minute
conversation. On the other hand I was told it was not a
conversation. That words were just exchanged and then – from
everything I gathered it was more of a passing thing. For all I
know the person said are you done at the fountain or, you know –
and we make comments like that all the time. Or it may have
been excuse me, sorry to bother you. There was nothing to
indicate that it was anything more than perhaps a polite
exchange that is common in everyday life. There was nothing
testified to that there was any physical reaction, any facial
reaction, any emotional reaction or even extended exchanging of
words. And generally that happens all the time. . . . So without
anything more I don’t find that there was good cause . . . to
12
discover the juror information.”
B. Legal framework
Under Code of Civil Procedure section 237, any person may
petition the trial court for access to personal juror identifying
information. (Code Civ. Proc., § 237, subd. (b).) Subject to
exceptions not applicable here, “[t]he court shall set the matter
for hearing if the petition and supporting declaration establish a
prima facie showing of good cause for the release of the personal
juror identifying information. . . .” (Ibid.) “Good cause, in the
context of a petition for disclosure to support a motion for a new
trial based on juror misconduct, requires ‘a sufficient showing to
support a reasonable belief that jury misconduct occurred. . . .’”
(People v. Johnson (2015) 242 Cal.App.4th 1155, 1161–1162
(Johnson), quoting People v. Cook (2015) 236 Cal.App.4th 341,
345–346.) The alleged misconduct must be “of such a character
as is likely to have influenced the verdict improperly.” (People v.
Jefflo (1998) 63 Cal.App.4th 1314, 1322.) “Good cause does not
exist where the allegations of jury misconduct are speculative,
conclusory, vague, or unsupported.” (People v. Cook, supra, 236
Cal.App.4th at p. 346, citing People v. Wilson (1996) 43
Cal.App.4th 839, 852.) Requests for the release of confidential
juror records “‘should not be used as a “fishing expedition” to
search for possible misconduct. . . .’” (People v. Avila (2006) 38
Cal.4th 491, 604.)
If the trial court does set a hearing, it must provide notice
to each of the jurors, either by personal service or by mail to his
or her last known address. (Code Civ. Proc., § 237, subd. (c).)
“Any affected former juror may appear in person, in writing, by
telephone, or by counsel to protest the granting of the petition.”
(Ibid.) “After the hearing, the records shall be made available as
13
requested in the petition, unless a former juror’s protest to the
granting of the petition is sustained. The court shall sustain the
protest of the former juror if, in the discretion of the court, the
petitioner fails to show good cause, the record establishes the
presence of a compelling interest against disclosure . . ., or the
juror is unwilling to be contacted by the petitioner.” (Id. subd.
(d).)
In People v. Rhodes (1989) 212 Cal.App.3d 541 (Rhodes) the
court set forth a balancing test for considering a defendant’s
request for disclosure of juror information.5 “[T]he Rhodes court
discerned several policy-based reasons to deny the defendant's
request for disclosure of juror identifying information. These
reasons included protecting a juror's state constitutional right to
privacy; the possible deterrence of prospective jurors from
fulfilling their obligation to serve if they knew they would be
subject to postverdict intrusions into their lives; reducing
incentives for jury tampering; promoting free and open discussion
among jurors in deliberations; and protecting the finality of
verdicts.” (Townsel, supra, at p. 1093, citing Rhodes, at pp. 548–
549.) The Rhodes court concluded that there was “an appropriate
middle ground which can harmonize and satisfy [these]
competing societal interests” by recognizing a rule that, upon
timely motion, counsel for a convicted defendant is entitled to
disclosure of juror identifying information “if the defendant sets
5Although Rhodes was decided before the statute’s present
enactment requiring a showing of good cause, the Rhodes test
survived the amendments. (See People v. Carrasco (2008) 163
Cal.App.4th 978, 990 (Carrasco); Townsel v. Superior Court
(1999) 20 Cal.4th 1084, 1095 (Townsel); People v. Wilson (1996)
43 Cal.App.4th 839, 852.)
14
forth a sufficient showing to support a reasonable belief that jury
misconduct occurred, that diligent efforts were made to contact
the jurors through other means, and that further investigation is
necessary to provide the court with adequate information to rule
on a motion for new trial. . . . [¶] Absent a satisfactory,
preliminary showing of possible juror misconduct, the strong
public interests in the integrity of our jury system and a juror's
right to privacy outweigh the countervailing public interest
served by disclosure of the juror information.” (Rhodes, supra, at
pp. 551–552; see also Carrasco, supra, 163 Cal.App.4th at p. 990.)
We review an order on a motion for disclosure of jurors’
identifying information under the deferential abuse of discretion
standard. (Carrasco, supra, 163 Cal.App.4th at p. 991.)
C. Analysis
Appellant contends he established a preliminary showing of
juror misconduct sufficient to require the court to order a hearing
and provide notice to the jurors pursuant to Code of Civil
Procedure section 237, subdivision (c). We find that the trial
court did not abuse its discretion in concluding that appellant
failed to make a prima facie showing that juror misconduct
occurred.
A defendant accused of a crime has a constitutional right
“to be tried by 12, not 11, impartial and unprejudiced jurors.”
(People v. Nesler (1997) 16 Cal.4th 561, 578, citing U.S. Const.,
6th and 14th Amends.; Cal. Const., art. I, § 16; Irvin v. Dowd
(1961) 366 U.S. 717, 722; In re Hitchings (1993) 6 Cal.4th 97,
110.) “‘Because a defendant charged with a crime has a right to
the unanimous verdict of 12 impartial jurors, it is settled that a
conviction cannot stand if even a single juror has been improperly
influenced.’” (People v. Nesler, supra, 16 Cal.4th at p. 578,
15
citations omitted.) “Juror misconduct, such as the receipt of
information about a party or the case that was not part of the
evidence received at trial, leads to a presumption that the
defendant was prejudiced thereby and may establish juror bias.
(Ibid., citing People v. Marshall (1990) 50 Cal.3d 907, 949–951; In
re Carpenter (1995) 9 Cal.4th 634, 650–655.)
During trial, the court questioned juror number 6
regarding her contact with Spinner’s grandmother in the
cafeteria, and questioned juror number 12 regarding his
disclosure that he attended high school with appellant.
Following those discussions, neither party objected to both jurors
remaining on the jury. The trial court found that juror number
6’s contact with Spinner’s grandmother was brief and unrelated
to the case. Appellant provided no evidence to suggest otherwise.
Thus, the court was well within its discretion to conclude that
this information did not establish good cause for a hearing on
juror misconduct.
The only other evidence in support of appellant’s petition
was the post-trial testimony of appellant’s witnesses regarding a
second encounter between juror number 6 and an older member
of Spinner’s family, presumably his grandmother, and a
discussion by Spinner’s family members in the restroom. The
trial court found that Maybon’s testimony regarding the
encounter at the water fountain suggested it was nothing more
than a “passing thing” or a polite exchange. The court relied on
Maybon’s testimony about the brief nature of the encounter and
the lack of reaction by the participants. Based on this evidence,
the fact that this was a second contact between Spinner’s
grandmother and juror number 6 did not, without more, establish
a reasonable probability that juror misconduct occurred. We find
16
no abuse of discretion in this conclusion.
We reject appellant’s suggestion that Maybon’s testimony
establishes the possibility that Spinner’s grandmother engaged in
additional improper contact with jurors. Although Maybon
testified that the grandmother approached her, she did not
identify any other encounters between any members of Spinner’s
family and any jurors, apart from the incident at the water
fountain.
Appellant also argues that the court reached its conclusion
by disbelieving Maybon’s testimony, thus conducting an improper
credibility assessment at the prima facie stage. (See Johnson,
supra, 242 Cal.App.4th at p. 1164, quoting Spaccia v. Superior
Court (2012) 209 Cal.App.4th 93, 111–112 [“‘A “prima facie”
showing refers to those facts demonstrated by admissible
evidence, which would sustain a favorable decision if the evidence
submitted by the movant is credited.’”].) Appellant cites the
court’s finding that the evidence of misconduct was “speculative”
as demonstrating such a credibility assessment of the witnesses.
We disagree. The court’s statement that appellant’s evidence was
speculative demonstrated a finding that the evidence did not
support a showing of good cause. Indeed, the court credited
Maybon’s description of the encounter in determining that there
was insufficient evidence to establish anything other than a brief,
innocuous incident.
Young’s testimony regarding the discussion by Spinner’s
relatives in the bathroom does not alter this conclusion. The trial
court found the evidence innocuous, given that the speakers did
not offer details regarding the hardships faced by Spinner’s
family or other information that might improperly impact a juror,
even assuming there was indeed jurors in the bathroom at the
17
time. On this record, it was not an abuse of discretion for the
trial court to conclude that appellant’s evidence of juror
misconduct was speculative at best, and did not establish good
cause for further inquiry.
II. Firearm Enhancements
At appellant’s sentencing in December 2018, the trial court
imposed a consecutive term on count one of 25 years to life for the
firearm enhancement pursuant to section 12022.53, subdivision
(d). The court also imposed and stayed firearm enhancement
terms of 25 years to life on count two (§12022.53, subd. (d)) and
10 years on count three (§ 12022.5, subd. (a)). Appellant
contends his counsel was ineffective for failing to request at
sentencing that the court strike the enhancements in the interest
of justice under section 12022.53, subdivision (h). He also argues
that the case should be remanded to allow the court to exercise
its discretion to impose an uncharged lesser firearm
enhancement. We are not persuaded by either point.
A. Ineffective assistance principles
To prevail on a claim of ineffective assistance of counsel, a
defendant must establish both that counsel’s performance was
deficient and that he was prejudiced by the deficient
performance. (Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland).) First, to establish deficient performance, a
defendant must show that counsel’s representation was
objectively unreasonable “under prevailing professional norms.”
(Id. at p. 688.) Second, a defendant can show prejudice where
there is “a reasonable probability”—meaning “a probability
sufficient to undermine confidence in the outcome”—“that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Id. at p. 694; see also People v.
18
Goldman (2014) 225 Cal.App.4th 950, 957.) Unless defendant
establishes otherwise, we presume that “counsel’s performance
fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of
sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166,
1211.)
If the record “‘sheds no light on why counsel acted or failed
to act in the manner challenged,’ an appellate claim of ineffective
assistance of counsel must be rejected ‘unless counsel was asked
for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.’” (People v. Ledesma
(2006) 39 Cal.4th 641, 745-746.) “Otherwise, the claim is more
appropriately raised in a petition for writ of habeas corpus.”
(People v. Carter, supra, 30 Cal.4th at p. 1211.)
B. Analysis
Effective January 1, 2018, amended sections 12022.5,
subdivision (c) and 12022.53, subdivision (h) provide that “[t]he
court may, in the interest of justice pursuant to [s]ection 1385
and at the time of sentencing, strike or dismiss an enhancement”
otherwise required to be imposed by section 12022.5 or section
12022.53. Thus, at the time of appellant’s sentencing in
December 2018, the trial court had the discretion to strike the
firearm enhancements under sections 12022.5 and 12022.53.
Appellant contends that he was denied his right to effective
assistance of counsel because his counsel did not request that the
court strike the firearm enhancements.
At sentencing, the court stated it was selecting the high
term based on the following: “The defendant displayed a good
amount of planning and sophistication. It seemed that he was
acting in concert with someone else. That they had planned out
19
what was about to occur. It doesn’t seem to be a spontaneous act.
They went into the location. They seemed to know what they
were looking for. They utilized a ruse to get to that safe. And
then I also find that there was a good amount of cruelty and a
cold, calculated decision to commit this crime. As he was leaving,
the door was shut. He was out. I understand the victim may
have been chasing him but there was no reason for the defendant
to shoot through the door, which ultimately ended up killing the
victim.” The court also noted appellant’s “past criminal history is
such that it is increasing in nature.”
The record is silent as to appellant’s counsel’s reasons for
failing to request that the court strike one or more firearm
enhancements at sentencing. We are not persuaded that there
could be no satisfactory reason for counsel’s silence, particularly
given the evidence cited by the court, which supported the
conclusion that appellant planned the robbery, pointed his gun at
Spinner while Chase restrained him, and then fired multiple
shots through the door at Spinner even though his path to escape
was unimpeded.
Moreover, even if appellant’s counsel had raised an
objection, there is no reasonable probability that the court would
have exercised its discretion to strike the firearm enhancements.
The court selected the upper term on counts two and three, as
well as the high term of 10 years for the firearm enhancement on
count three pursuant to section 12022.5, subdivision (a). The
court also detailed the bases for its selection of the high term,
including that appellant “displayed a good amount of planning
and sophistication” in planning the crimes and acting in concert
with others; that appellant and the others “utilized a ruse to get
to that safe”; that appellant displayed “a good amount of cruelty
20
and a cold, calculated decision to commit this crime,” particularly
by shooting through the door at the victim when there was “no
reason” to do so; and that appellant’s “past criminal history is
such that it is increasing in nature.” Thus, the court’s rulings
and comments are a clear indication it would not strike the
enhancement in any event, and therefore that appellant was not
prejudiced by his counsel’s failure to seek a reduction of his
sentence. (See People v. Chavez (2018) 22 Cal.App.5th 663, 713;
People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
Appellant also suggests that the trial court could have
reduced the firearm enhancement to an uncharged lesser
included enhancement,6 citing People v. Morrison (2019) 34
Cal.App.5th 217 (Morrison). We respectfully disagree with the
reasoning set forth in that opinion and conclude that the statute
does not afford any such discretion.
In Morrison, the appellate court construed section
12022.53, subdivision (h) to give a trial court discretion not only
to strike an enhancement, but also to “impose an enhancement
under section 12022.53, subdivision (b) or (c) as a middle ground”
option, notwithstanding a finding by the trier of fact in support of
a greater enhancement. (Morrison, supra, 34 Cal.App.5th at p.
223.) The court analogized to cases recognizing the trial court's
discretionary authority to impose a lesser included, uncharged
6Section 12022.53 provides three different sentence
enhancements for the personal use of a firearm in the commission
of enumerated offenses: a 10-year enhancement for the personal
use of a firearm (§ 12022.53, subd. (b)); a 20-year enhancement
for the personal and intentional discharge of a firearm
(§ 12022.53, subd. (c)); and a 25-year-to-life enhancement for the
personal and intentional discharge of a firearm causing great
bodily injury or death (§ 12022.53, subd. (d)).
21
enhancement where a greater enhancement found true by the
trier of fact is determined to be either legally inapplicable or
unsupported by sufficient evidence. (Id. at pp. 222-223, citing
People v. Fialho (2014) 229 Cal.App.4th 1389, 1395–1396
[uncharged firearm enhancement under section 12022.5,
subdivision (a) was authorized when defendant was convicted of
voluntary manslaughter as a lesser included offense of murder,
rendering section 12022.53 enhancement inapplicable]; People v.
Allen (1985) 165 Cal.App.3d 616, 627 [arming enhancement
under section 12022 imposed when section 12022.5 did not apply
to conviction]; People v. Dixon (2007) 153 Cal.App.4th 985, 1001–
1002 [substitution of deadly weapon enhancement under section
12022, subd. (b) for section 12022.53, subd. (b) enhancement,
when BB or pellet gun did not qualify as “firearm” under
statute].) The court concluded: “We see no reason a court could
not also impose one of these [lesser] enhancements after striking
an enhancement under section 12022.53, subdivision (d), under
section 1385.” (Morrison, supra, 34 Cal.App.5th at pp. 222-223.)
The reasoning in Morrison has been rejected by a number
of our sister courts. (See People v. Valles (2020) 49 Cal.App.5th
156, 164, review granted July 22, 2020, S262757; People v. Yanez
(2020) 44 Cal.App.5th 452, 458, review granted April 22, 2020,
S260819; People v. Garcia (2020) 46 Cal.App.5th 786, 790-794,
review granted June 10, 2020, S261772; People v. Tirado (2019)
38 Cal.App.5th 637, 644, review granted Nov. 13, 2019, S257658.)
We agree with the conclusion reached by these courts. “The
express language of sections 1385 and 12022.53, subdivision (h)
refers only to dismissing (or striking) actions or enhancements;
neither section authorizes the substitution of a lesser
enhancement for a greater enhancement, properly found true at
22
trial, and for which there is no legal impediment to imposition. It
does not give the court the right to disregard the verdict of a jury
and pronounce a sentence that does not respond to the verdict as
rendered.” (People v. Valles, supra, 49 Cal.App.5th at p. 166.) As
such, we conclude that under a plain reading, the Legislature’s
use of the words “‘strike’ or ‘dismiss’ indicates the court’s power
pursuant to these sections is binary.” (See People v. Tirado,
supra, 38 Cal.App.5th at p. 643.)
Here, the enhancements at issue were neither unsupported
by the law nor unsupported by the evidence. Accordingly, remand
is unwarranted.
III. Fines and Fees
Appellant contends the trial court erred by requiring him to
pay various fines and fees without finding that he had the ability
to pay them. He contends a hearing on his ability to pay was
required under People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas) despite his failure to request such a hearing or
otherwise object to any of the fines and fees imposed.7 We
disagree.
At sentencing, the trial court imposed a $10,000 restitution
fine (§ 1202.4, subd. (b)), a $10,000 parole revocation fine, stayed
(§ 1202.45), a $40 court operations assessment (§ 1465.8, subd.
(a)(1)), a $30 criminal conviction assessment (Gov. Code,
7The California Supreme Court has granted review in
People v. Kopp (2019) 38 Cal.App.5th 47, review granted
November 13, 2019, S257844, on the issue of whether a trial
court must “consider a defendant's ability to pay before imposing
or executing fines, fees, and assessments” and if so, “which party
bears the burden of proof regarding the defendant's inability to
pay.”
23
§ 70373), and $10 crime prevention fee (§ 1202.5).8 At the time of
sentencing, the statutory minimum fine under section 1202.4 was
$200. Thus, the $10,000 restitution fine the trial court imposed
exceeded the statutory minimum. Even prior to Dueñas, section
1202.4 permitted a defendant to present information regarding
his or her ability to pay any fine amount above the minimum. (§
1202.4, subd. (c).) Thus, by failing to object to the restitution fine
and to present evidence he did not have the ability to pay it,
appellant forfeited the argument that the trial court erred in
imposing the fine without considering his ability to pay. (See
People v. Avila (2009) 46 Cal.4th 680, 729; People v. Smith (2020)
46 Cal.App.5th 375, 395; People v. Gutierrez (2019) 35
Cal.App.5th 1027, 1033; People v. Frandsen (2019) 33
Cal.App.5th 1126, 1154.)
With respect to the non-punitive court operations
assessment and court construction fees, we note that given
appellant’s failure to object to the $10,000 restitution fine based
on the ability to pay, it is unlikely he would have done so with
respect to $80 in assessments. (See People v. Frandsen, supra, 33
Cal.App.5th at p. 1154; accord People v. Aviles (2019) 39
Cal.App.5th 1055, 1074; People v. Gutierrez, supra, 35
Cal.App.5th at p. 1033.) Moreover, the imposition of $80 in fees
and assessments was harmless given appellant’s ability to earn
wages during his lengthy prison sentence and his youth at the
time of sentencing. (See People v. Johnson (2019) 35 Cal.App.5th
134, 139–140 [any error under Dueñas harmless when defendant
“will have the ability to earn prison wages over a sustained
period”]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837
8We discuss the corrections to these amounts in section IV,
post. We have used the corrected amounts here.
24
[defendant’s ability to pay includes the future ability to obtain
prison wages and to earn money after release from custody].)
For this reason we also reject appellant’s contention that
any forfeiture was a result of the ineffective assistance of counsel.
Appellant has not shown his counsel had no tactical reason not to
object to the assessments, or that he had a reasonable possibility
of prevailing by establishing that he was unable to pay the
assessments.
IV. Correction of Sentencing Errors
Appellant contends the sentencing minute order and
abstract of judgment contain several errors that must be
corrected. Respondent agrees.
First, the parties point out discrepancies in the imposition
of assessments and fees between the court’s oral pronouncement
of judgment, the minute order from the hearing, and the abstract
of judgment. In orally pronouncing appellant’s sentence, the
court imposed one $40 court operations assessment (§ 1465.8,
subd. (a)(1)) and one $30 criminal conviction assessment (Gov.
Code, § 70373). However, the minute order and the abstract of
judgment reflect three court operations assessments ($120 total)
and three criminal conviction assessments ($90 total). Generally,
where there is a discrepancy between the oral pronouncement of
judgment and the abstract of judgment or minute order, the oral
pronouncement controls, and we may order correction of any such
errors. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Second, the court imposed two $10 crime prevention fines
(§ 1202.5), one each on counts two and three. The parties agree
that this fine may not be imposed on count two, as attempted
robbery is not one of the enumerated offenses under section
1202.5, subdivision (a). (People v. Jefferson (2016) 248
25
Cal.App.4th 660, 663 [“attempted robbery is not among the
enumerated offenses for which a local crime prevention programs
fine may be imposed”].) We agree, and order the crime
prevention fee imposed on count two stricken.
Finally, the parties agree that appellant should have
received 1,457 days of actual custody credit, rather than the
1,455 actual days awarded by the trial court. We may correct an
error in calculating the award of presentence credits at any time.
(See People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.)
Therefore, the judgment is modified to reflect that appellant is to
receive presentence credits of 1,457 days of actual custody credit.
DISPOSITION
We modify the judgment to (1) reflect a $40 court
operations assessment (§ 1465.8, subd. (a)(1)) and a $30 criminal
conviction assessment (Gov. Code, § 70373) on count one, and a
$10 crime prevention fine (§ 1202.5) on count three, and (2)
award appellant two additional days of presentence custody
credit. The judgment of the trial court is affirmed in all other
respects. The trial court is directed to prepare an amended
abstract of judgment and forward a certified copy to the
California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J. CURREY, J.
26