People v. Green CA5 ( 2024 )

Filed 4/3/24 P. v. Green CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085991
Plaintiff and Respondent,
(Super. Ct. No. 145370)
v.
DARNELL LEO GREEN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Carrie M.
Stephens, Judge.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E.
Zall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Peña, Acting P. J., Meehan, J. and DeSantos, J.
In 1998, defendant Darnell Leo Green was convicted by a jury of nine felony
offenses including robbery, burglary, active participation in a street gang, and unlawful
possession of a firearm. The jury also found true various enhancements and that
defendant had suffered a prior “strike” conviction within the meaning of the
“Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).1 In the
same year, he was sentenced to 48 years in prison. Defendant’s sentence was reduced
several times. Most recently, on February 24, 2023, the trial court recalled defendant’s
sentence pursuant to section 1172.1 (former §§ 1170, subd. (d)(1), 1170.03) and
resentenced him to a reduced term of 39 years. On appeal, defendant contends that
(1) the trial court abused its discretion in resentencing defendant to 39 years rather than
reducing his sentence to time served, and (2) the trial court erred in imposing an upper
term sentence without proof of circumstances in aggravation as required by section 1170,
subdivision (b)(2) and without determining that the aggravating circumstances justified
imposition of a sentence exceeding the middle term. Alternatively, as to defendant’s
second contention, he argues that to the extent he forfeited this claim by failing to object
below, his counsel was ineffective. The People disagree in all respects.
We ordered the parties to submit supplemental briefing regarding whether
defendant’s sentence was unauthorized because the trial court stayed rather than struck
the gang and firearm enhancements. The parties agree that the sentence was
unauthorized, that the sentence must be vacated, and that the matter must be remanded
for resentencing. We vacate defendant’s sentence and remand for resentencing.
1 All further statutory references are to the Penal Code unless otherwise noted.
2.
PROCEDURAL SUMMARY2
On June 10, 1998, the Stanislaus County District Attorney filed a second amended
information, charging defendant and two codefendants with two counts of attempted
robbery (§§ 211, 212.5, 664; counts I & IV), three counts of robbery (§§ 211, 212.5;
counts II, III, & V), burglary (§ 459; count VI), conspiracy to commit robbery (§§ 182,
211, 212.5; count VII), active participation in a street gang (§ 186.22, subd. (a);
count VIII), and unlawful possession of a firearm.3 As to counts I through IV and VI
through VIII, the second amended information alleged that defendant personally used a
firearm (§ 12022.5). As to count V, the second amended information alleged defendant
was armed with a firearm (§ 12022.5, subd (a)). As to counts I through VII and X, the
second amended information further alleged defendant committed the offense for the
benefit of a street gang (§ 186.22, subd. (b)(1)). As to all counts alleged against
defendant, the second amended information alleged that defendant had suffered a prior
strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), which also qualified as
a serious felony conviction (except as to count X). Finally, as to all counts alleged
2 Both parties’ references in their briefs to the clerk’s transcript appear to refer to the
clerk’s transcript in defendant’s prior appeal. The transcripts largely overlap, but some
documents relevant to the procedural history of the case that are present in the clerk’s
transcript in defendant’s prior appeal are not present in the clerk’s transcript for this case.
The parties also both cite to this court’s prior opinion. (People v. Green (June 9, 2022;
F083294) [nonpub. opn.] (Green).) We construe the parties’ reference to the clerk’s
transcript for defendant’s prior appeal as well as this court’s prior opinion as a request for
judicial notice of that record and opinion—the parties’ reliance on the transcript and prior
opinion makes clear that they each had reasonable opportunity to review that information.
(Evid. Code, §§ 452, subd. (c), 455, subd. (a)). We grant judicial notice of the clerk’s
transcript and opinion in Green, F083294. (Evid. Code, §§ 452, subd. (d), 459, subds.
(a)–(c).)
3 Count IX was alleged only against a codefendant.
3.
against defendant,4 the second amended information alleged that defendant had suffered
three prior prison terms (§ 667.5, former subd. (b)).
On October 5, 1998, the jury found defendant guilty on all nine counts and found
true all enhancements.
On November 23, 1998, the trial court sentenced defendant to 48 years in prison as
follows: on count II, 18 years (the upper term of nine years doubled due to the prior
strike conviction), plus a four-year firearm enhancement (§ 12022.5), plus a five-year
prior serious felony conviction enhancement (§ 667, subd. (a)); on count I, two years
(one-third of the middle term of three years, doubled due to the prior strike conviction)
plus a 16-month firearm enhancement (§ 12022.5), consecutive to the sentence on
count II; on both of counts III and IV, four years (one-third of the middle term of
six years, doubled due to the prior strike conviction), plus a 16-month firearm
enhancement (§ 12022.5), each consecutive to the terms imposed on the prior count; on
count V, four years (one-third of the middle term of six years, doubled due to the prior
strike conviction), plus a four-month firearm enhancement (§ 12022, subd. (a)),
consecutive to the sentence on count IV; and on count VIII, 16 months (one-third the
middle term of two years, doubled due to the prior strike conviction, plus a 16-month
firearm enhancement (§ 12022.5), consecutive to the term on count V. The court stayed
the sentences on counts VI, VII, and X.
On May 24, 2002, the Department of Corrections and Rehabilitation (CDCR) sent
the trial court a recommendation for sentence correction. On October 9, 2002, the trial
court reduced the base term on count IV from four years to two years, thereby reducing
the aggregate term from 48 to 46 years.
4 The second amended information identifies counts I through VIII and IX as the
counts for which the enhancement allegation was made against defendant. However,
defendant was charged in counts I through VIII and X.
4.
On February 12, 2015, the CDCR sent the trial court a second letter requesting
clarification on the sentence as modified October 9, 2002. On May 7, 2015, the court
modified defendant’s sentence as a result of the second CDCR letter by staying the
four-month firearm enhancement on count V for a total aggregate term of 45 years
eight months.
On February 18, 2021, the CDCR sent the trial court a third letter, recommending
recall and resentencing pursuant to former section 1170, subdivision (d)(1) due to
defendant’s “ ‘exceptional conduct while incarcerated.’ ” On August 19, 2021, the trial
court declined to exercise its discretion to recall defendant’s sentence.
On June 9, 2022, this court vacated the trial court’s order declining to exercise its
discretion to recall defendant’s sentence and resentence him in light of Assembly Bill
No. 1540 (2021–2022 Reg. Sess.), which modified the law to entitle an inmate for whom
the secretary of the CDCR filed a resentencing request to a hearing, reasoned decision,
appointment of counsel, and a rebuttable presumption in favor of recall and resentencing.
(Green, supra, F083294.)
On December 7, 2022, defendant filed a request for recall and resentencing,
supported by the February 18, 2021 letter from the secretary of the CDCR recommending
recall and resentencing; a CDCR cumulative case summary and evaluation report,
summarizing the offenses of conviction, defendant’s prior juvenile adjudications and
adult convictions, parole history, prison rules compliance record, and record of prison
programming completion and participation; letters from defendant apologizing to his
victims, admitting fault, and acknowledging the challenges he may face upon release and
setting out his plan of action (including relapse and parole violation prevention plans);
and letters from defendant’s support system.
On January 6, 2023, defendant filed a supplement, including a comprehensive risk
assessment based on a September 21, 2022 interview of defendant conducted by CDCR’s
5.
forensic assessment division for the board of parole hearings; an addendum to
defendant’s relapse prevention plan; and defendant’s career action plan.
On February 24, 2023, the trial court recalled defendant’s sentenced and
resentenced him to an aggregate term of 39 years as follows: on count II, 18 years (the
upper term of nine years, doubled due to the prior strike conviction), plus a four-year
firearm enhancement (§ 12022.5), plus a five-year prior serious felony conviction
enhancement (§ 667, subd. (a)); on counts I, III, IV, two years (one-third of the
middle term of three years, doubled due to the prior strike conviction), each consecutive
to the term on the prior count; on count V, four years (one-third of the middle term of
six years, doubled due to the prior strike conviction), consecutive to the term on
count IV; and on count 8, 16 months (one-third the middle term of two years, doubled
due to the prior strike conviction), plus a 16-month firearm enhancement (§ 12022.5), all
stayed.5 As to counts I, III, IV, and V, the trial court imposed and stayed firearm
enhancements (§ 12022.5) and gang enhancements (§ 186.22, subd. (a)(1)), but not the
underlying counts. The terms on all other counts and enhancements were stayed in their
entirety pursuant to section 654.
On March 21, 2023, defendant filed a notice of appeal.
DISCUSSION6
I. The Trial Court Did Not Abuse Its Discretion In Refusing To Further
Reduce Defendant’s Sentence To Time Served
Defendant argues the trial court erred in failing to reduce defendant’s sentence to
time served (or by more than seven years). Specifically, he argues that the trial court put
undue weight on “its belief ‘that any further reduction in the defendant’s sentence …
5 The trial court did not explain whether the term on count VIII was stayed pursuant
to section 654 or on some other basis.
6 Because defendant challenges only sentencing issues and because the record
before us does not contain a transcript of the trial testimony, we omit a factual summary.
6.
would pose an unreasonable risk to danger of public safety due to the defendant’s
significant criminal history, the heinous nature of the offense, [and] the defendant’s prior
poor performance when he was out of custody.’ ” Those considerations, defendant
argues, “all refer to a time when [he] was in his 20s or younger, a high school dropout,
involved in the gang life, … well before he matured and realized the advantages of
participating in the programming opportunities offered by CDCR,” and still suffered from
substance abuse issues. Now, more than 26 years later, and with the secretary of the
CDCR’s recommendation for recall of his sentence, defendant argues that the trial court’s
refusal to grant his immediate release was an abuse of discretion. The People respond
that the trial court explicitly considered defendant’s entire file and was within its
discretion to sentence defendant to 39 years. We agree with the People.7
A. Additional Background
On February 24, 2023, the trial court heard argument from the parties, outlined
defendant’s crimes of conviction and the procedural history of the case, recalled
defendant’s sentence, and resentenced him to 39 years in custody. The trial court
indicated that it “considered the entire file: all of the pleadings, the factors of the offense,
… [and] defendant’s conduct while incarcerated for the last 26 years.” The court went on
to comment that “the offenses [of conviction] themselves were … heinous [and] …
involved multiple victims. … People were stripped down naked and … there were
7 Because the parties agree that the sentence imposed was unauthorized, we need
not consider whether the trial court erred in imposing the upper term despite aggravating
factors not having been proved in compliance with section 1170, subdivision (b).
However, we note that section 1172.1 requires a trial court that recalls and resentences
defendant pursuant to that section to “apply any changes in law that reduce sentences or
provide for judicial discretion so as to eliminate disparity of sentences and promote
uniformity of sentencing.” (§ 1172.1, subd. (a)(2).) The changes to section 1170
wrought by Senate Bill No. 567 (2021–2022 Reg. Sess.) and Assembly Bill No. 124
(2021–2022 Reg. Sess.) are the kinds of changes in law identified in section 1172.1,
subdivision (a)(2) which must be applied when a defendant’s sentence is recalled and
they are resentenced.
7.
children involved that were victims and subject to the offenses …. A weapon was used.
…[D]efendant, prior to that heinous day, had a significant criminal history with prior
poor performance on parole. He was not a youthful offender when the crimes were
committed. [He] presents a medium risk [of reoffending] pursuant to the board of
parole’s comprehensive risk assessment …. He appears to have a substance use disorder,
and that disorder has played a role in his prior criminality. He used drugs up until 2014
while incarcerated. And it appears to the [c]ourt tha[t] drugs played a significant factor in
… defendant’s criminality.”
Based on that recitation, the trial court recalled defendant’s sentence, stayed the
firearm enhancements on counts I, III, IV, and stayed count VIII in its entirety. The court
otherwise imposed the same sentence imposed on May 7, 2015, for an aggregate term of
39 years. The court commented that it “believe[d] that any further reduction in …
defendant’s sentence under the circumstances … described previously pose an
unreasonable risk to danger of public safety due to the defendant’s significant criminal
history, the heinous nature of the offense[s], [and] defendant’s prior poor performance
when he was out of custody.”
B. Relevant Legal Principles
Section 1172.1, subdivision (a)(1) states: “When a defendant, upon conviction for
a felony offense, has been committed to the custody of the [s]ecretary of the [CDCR] …,
the court may … at any time upon the recommendation of the secretary … recall the
sentence and commitment previously ordered and resentence the defendant in the same
manner as if [the defendant] had not previously been sentenced, whether or not the
defendant is still in custody, and provided the new sentence, if any, is no greater than the
initial sentence.”
Section 1172.1 includes an express presumption in favor of recall and resentencing
a defendant for whom the secretary of the CDCR has made a recommendation in favor of
recall and resentencing. (§ 1172.1, subd. (b)(2).) That presumption “may only be
8.
overcome if a court finds the defendant currently poses an unreasonable risk of danger to
public safety.” (Ibid.)
If a trial court recalls a defendant’s sentence and resentences them pursuant
section 1172.1, the court “shall … apply any changes in law that reduce sentences or
provide for judicial discretion.” (§ 1172.1, subd. (a)(2); People v. Pierce (2023) 88
Cal.App.5th 1074, 1078.) The CDCR makes such recommendations “not only to bring to
the trial court’s attention sentences in need of correction (e.g., unauthorized sentences)
but also to invite the court to recall sentences based upon equitable considerations (e.g.,
extending the benefit of an ameliorative change in the law to a defendant whose judgment
is final).” (People v. Williams (2021) 65 Cal.App.5th 828, 834.) The “recommendation
furnishes the court with jurisdiction it would not otherwise have to recall and resentence
and is ‘an invitation to the court to exercise its equitable jurisdiction.’ ” (People v.
McMurray (2022) 76 Cal.App.5th 1035, 1040.)
Further, in resentencing a defendant pursuant to section 1172.1, a trial court “shall
consider postconviction factors, including, but not limited to, the disciplinary record and
record of rehabilitation of the defendant while incarcerated, evidence that reflects
whether age, time served, and diminished physical condition, if any, have reduced the
defendant’s risk for future violence, and evidence that reflects that circumstances have
changed since the original sentencing so that continued incarceration is no longer in the
interest of justice.” (§ 1172.1, subd. (a)(5).)
We review a trial court’s resentencing determination for abuse of discretion.
(People v. Frazier (2020) 55 Cal.App.5th 858, 863.) “ ‘In reviewing for abuse of
discretion, we are guided by two fundamental precepts. First, “ ‘[t]he burden is on the
party attacking the sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.’ ”
9.
[Citations.] Second, a “ ‘decision will not be reversed merely because reasonable people
might disagree. “An appellate tribunal is neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge.” ’ ” [Citation.] Taken together, these
precepts establish that a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.’ ” (People v. Strother
(2021) 72 Cal.App.5th 563, 571.)
C. Analysis
Defendant argues that the trial court “misapplied the facts and law” when it
refused to reduce defendant’s sentence further because “ ‘any further reduction … would
pose an unreasonable risk to danger of public safety ….’ ”
First, defendant contends that the trial court’s refusal to reduce the sentence
further based on an unreasonable risk of danger to public safety was legally erroneous.
Defendant correctly notes that a finding that a defendant “currently poses an
unreasonable risk of danger to public safety” is the conclusion required to overcome the
presumption in favor of entitlement to recall and resentencing.8 (§ 1172.1, subd. (b)(2).)
Nowhere in the statutory scheme is that finding related to a limitation on maximum
reduction in term or a floor for resentencing. Defendant therefore argues that refusal to
reduce his sentence further based on the finding that he posed an unreasonable risk of
danger to public safety was legally erroneous. We disagree. The court very clearly
expressed its understanding of that statutory requirement. It explained: “There is a
presumption in favor of recall and resentencing of the defendant, which may only be
overcome if the [c]ourt finds the defendant is an unreasonable risk of danger to the
8 The phrase “currently poses an unreasonable risk of danger to public safety,”
within the meaning of section 1172.1 subdivision (b)(2), means an unreasonable risk that
the defendant will commit a new particularly serious or violent felony, known
colloquially as a “ ‘ “super strike[]” ’ ” offense. (People v. Braggs (2022) 85
Cal.App.5th 809, 818; see §§ 667, subd. (e)(2)(C)(iv), 1170.18, subd. (c), 1172.1,
subd. (b)(2).)
10.
public.” The court then explicitly recalled defendant’s sentence and resentenced him to a
lesser term. Moreover, while the court said further reduction “would pose an
unreasonable risk to danger of public safety,” it did not purport to make the requisite
finding for that conclusion, i.e., that defendant posed an unreasonable risk of commission
of a new super strike offense or even discuss those offenses. Based on the court’s clear
understanding of the impact of the conclusion that defendant posed an unreasonable risk
of danger to public safety within the meaning of section 1172.1, we must conclude that
the court simply imprecisely used the statutorily defined term; it did not conclude that
defendant posed an unreasonable risk of danger to public safety within the meaning of
section 1172.1.
Placing the trial court’s statement in context, the court refused to further reduce
defendant’s sentence because it concluded “any further reduction in … defendant’s
sentence under the circumstances … described previously would pose an unreasonable
risk to danger of public safety due to the defendant’s significant criminal history, the
heinous nature of the offense, [and] defendant’s prior poor performance when he was out
of custody.” The court’s summary reinforces our conclusion that the court used the
statutory phrase loosely and without the statutorily defined meaning. Further, we note
that the goal of protecting society and the identified underlying considerations—
defendant’s criminal history, the nature of the offense, defendant’s performance when out
of custody, the offense involved multiple victims,9 the offense involved minor victims,
9 “Effective January 1991, ‘multiple victims,’ which had been listed as an
aggravating circumstance in former [California Rules of Court,] rule 421(a)(4), was
deleted. The Advisory Committee comment explained it ‘was deleted to avoid confusion;
cases in which that possible circumstance was relied on were frequently reversed because
there was only a single victim in a particular count.’ ” (People v. Crabtree (2009) 169
Cal.App.4th 1293, 1326, fn. 11.) However, “[n]either section 1170 nor the California
Rules of Court attempt to provide an inclusive list of aggravating circumstances. Thus, a
trial court is free to base an upper term sentence upon any aggravating circumstance that
(1) the court deems significant and (2) is reasonably related to the decision being made.”
(People v. Moberly (2009) 176 Cal.App.4th 1191, 1196; see rule 4.421(c) [besides the
11.
defendant’s use of a weapon, defendant’s drug use or addiction—correlate to appropriate
considerations in resentencing a defendant after recall. (See Cal. Rules of Court,
rules 4.410(a)(1) [protecting society is a general objective of sentencing], 4.421(a)(1)
[“acts disclosing a high degree of cruelty, viciousness, or callousness”], (a)(2)
[“defendant was armed with or used a weapon”], (a)(3) [“[t]he victim was particularly
vulnerable”], (b)(1) [“defendant has engaged in violent conduct that indicates a serious
danger to society”], (b)(2) [“defendant’s prior convictions as an adult or sustained
petitions in juvenile delinquency proceedings are numerous or of increasing
seriousness”], (b)(5) [“defendant’s prior performance on probation, mandatory
supervision, postrelease community supervision, or parole was unsatisfactory”];
§ 1172.1, subd. (a)(5) [the “disciplinary record and record of rehabilitation of the
defendant while incarcerated” as they relate to “defendant’s risk for future violence”].)
In short, the trial court’s imprecise use of the phrase “pose an unreasonable risk of danger
to public safety” does not indicate that it abused its discretion by considering
inappropriate factors in imposing defendant’s sentence.
Second, defendant contends that some of the factors relied upon by the trial court
to reach the conclusion that he posed an unreasonable risk of danger to public safety were
unsupported by the record. Specifically, he contends that findings that defendant
presently had a substance abuse disorder that increased his risk of violent reoffending and
that his violent criminal history indicated a present risk of violent recidivism were
enumerated circumstances in aggravation, a court may rely on “[a]ny other factors
statutorily declared to be circumstances in aggravation or that reasonably relate to the
defendant or the circumstances under which the crime was committed”]; see also
California Rules of Court, rule 4.408(a).) “[A]lthough multiple victims is no longer
expressly enumerated as a circumstance in aggravation in the California Rules of Court,
the existence of multiple victims continues to be a valid aggravating circumstance that
would support the imposition of the upper term.” (Crabtree, at p. 1326, fn. omitted;
accord People v. Valenzuela (1995) 40 Cal.App.4th 358, 365.)
12.
inconsistent with the recommendation by the secretary of the CDCR and the documents
filed in support of it.
As noted above, in resentencing a defendant pursuant to section 1172.1, a court is
required to consider “postconviction factors, including … [a defendant’s] disciplinary
record and record of rehabilitation …” to determine whether defendant posed a “reduced
… risk for future violence.” Otherwise, after a court has recalled a sentence, “the court
still has discretion in imposing a new sentence. The new sentence cannot be more than
the original sentence, but a court would not necessarily impose a lower sentence if the
court did not otherwise feel that one was appropriate (unless a change in law from the
time of the original sentence mandated a lower sentence).” (Assem. Com. on Public
Safety, Analysis of Assem. Bill No. 1540 (2021–2022 Reg. Sess.) as amended Apr. 22,
2021, p. 6.)
In this case, the trial court made clear that it “considered the entire file …,
[including] … defendant’s conduct while incarcerated for the last 26 years.” The court
then imposed a lesser term than previously imposed by imposing and staying firearm
enhancements on counts I, III, and IV that were previously imposed and staying the term
on count VIII in its entirety. It declined to impose a sentence less than 39 years in light
of “defendant’s significant criminal history, the heinous nature of the offense, [and]
defendant’s prior poor performance when … out of custody,” as well as “the
circumstances that [it] … described previously,” which included defendant’s substance
abuse disorder and “medium risk” for re-offense “pursuant to the board of parole’s
comprehensive risk assessment.” The court’s description of defendant’s history of
substance abuse appears to be consistent with the record. It described that defendant
“appear[ed] to have a substance use disorder, and that disorder … played a role in his
prior criminality. He used drugs up until 2014 while incarcerated.” The cumulative case
summary and evaluation report prepared for the recall and resentencing process reflected
that defendant suffered a rules violation report on February 13, 2014, for a positive drug
13.
test for marijuana while in custody. The comprehensive risk assessment for the board of
parole hearings report reflects that defendant believed his substance abuse contributed to
prior crimes, but not the offenses that led to his incarceration in this case. It further
indicated that he participated in substance abuse awareness courses,10 but also “me[t]
criteria for DSM-5 diagnoses of Alcohol, Cannabis, and Cocaine Use Disorders, [i]n
sustained remission, [i]n a controlled environment.” The report further reflected that
defendant’s “[s]ubstance abuse as a risk factor [for violence] continues to bear high
relevance to future risk management strategies ….” Also contained in the record was a
list defendant prepared of his triggers and a set of coping strategies to avoid relapse. In
short, while the record indicated that defendant had not tested positive for any controlled
substance in a controlled environment since 2014, the risk of his relapse when released
merited consideration. The court does not appear to have overstated or put undue
emphasis on defendant’s history of substance abuse. Consideration of that factor in
assessing defendant’s risk of future violence (§ 1172.1, subd. (a)(4)) was indicated by the
record and not an abuse of discretion.
Next, the trial court summarized the basic details of defendant’s offenses leading
to his confinement and noted his significant prior criminal history. Based on the record
before us, the summary of the offenses and criminal history appear to have been accurate.
The court then repeated the board of parole hearings analyst’s conclusion that defendant
was a “[m]edium[] risk for violence.” The trial court’s conclusion that defendant
continued to pose some risk of violence was not unsupported by the record as defendant
contends. In short, we find no abuse of discretion.
II. Unauthorized Sentence
We ordered the parties to submit supplemental briefing on whether the trial court
imposed an unauthorized sentence by staying, rather than striking, the firearm and gang
10 A certificate of participation for one such course is contained in the record.
14.
enhancements. The parties agree that the sentence imposed was unauthorized because
the trial court was not permitted to stay the firearm enhancements on counts I, III, IV, V,
and VIII, and the gang enhancements on counts I through V. They further agree that the
appropriate remedy is to vacate defendant’s sentence and remand for resentencing. We
agree with the parties that the stay of enhancements on the counts that were not stayed
was unauthorized. However, because count VIII was stayed in its entirety,11 the stay of
the firearm enhancement on that count was not unauthorized.
Sections 12022.5, subdivision (c), and 12022.53, subdivision (h), grant trial courts
the authority to strike firearm enhancements in the interest of justice, pursuant to
section 1385. Likewise, section 186.22, subdivision (h) grants trial courts the authority to
strike additional punishment for gang enhancements in the interest of justice. On the
other hand, the sentence on a count and all enhancements must be stayed to avoid
multiple punishment for the same acts or omissions. (§ 654.) However, no authority
exists to permit a court to stay all gang and firearm enhancements on a count (without
also staying the entire sentence on the count pursuant to § 654). (See People v. Lopez
(2004) 119 Cal.App.4th 355, 364 (Lopez); § 1385, subds. (a), (b)(1) [authorizing courts to
strike or dismiss enhancements or the punishment for such enhancements]; cf. People v.
Gonzalez (2008) 43 Cal.4th 1118, 1129–1130 [§ 12022.53, subd. (f) limits imposition
and execution of firearm enhancements to one enhancement per count; all other firearm
enhancements as to that count must be stayed].)
“Ordinarily, an enhancement must be either imposed or stricken ‘in furtherance of
justice’ under … section 1385. [Citations.] The trial court has no authority to stay an
enhancement, rather than strike it—not, at least, when the only basis for doing either is its
11 Because the record before us does not contain a transcript of the trial testimony,
we cannot determine whether count VIII may have been appropriately stayed pursuant to
section 654. On remand, if the trial court again stays count VIII, it should clearly indicate
on what basis it stays that count.
15.
own discretionary sense of justice.” (Lopez, supra, 119 Cal.App.4th at p. 364.) “Rather,
the only authority for staying an enhancement is California Rules of Court, rule 4.447,
which applies when ‘an enhancement that otherwise would have to be either imposed or
stricken is barred by an overriding statutory prohibition. In that situation—and that
situation only—the trial court can and should stay the enhancement.’ ” (People v. Bay
(2019) 40 Cal.App.5th 126, 139.)
In this case, the trial court imposed and did not stay a firearm enhancement as to
count II; it imposed and stayed the firearm and gang enhancements (but not the
underlying offenses) on counts I, III, IV, and V, each of which involved different victims;
and it imposed and stayed a firearm enhancement and the term on count VIII. As the
parties agree, the stays of the firearm and gang enhancements on counts I, III, IV, and V
resulted in an unauthorized sentence. (People v. Lopez, supra, 119 Cal.App.4th at
p. 364.) The court was required to either impose (and not stay) or strike the
enhancements.
The parties agree, as do we, that the sentence must be vacated and the matter
remanded for resentencing because it is not clear that the trial court would have stricken
the enhancements on counts I, III, IV, and V had it understood the authorized sentencing
choices. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) We vacate the
sentence and remand for full resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893.)
We take no position on how the trial court should exercise its sentencing discretion on
remand.12
DISPOSITION
The sentence is vacated, and the matter is remanded for full resentencing
consistent with this opinion.
12 As the People correctly note, if the trial court exercises its discretion to strike the
enhancements pursuant to section 1385, it must state its reasons on the record. (§ 1385,
subd. (a); People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
16.