People v. Ferrell CA2/8 ( 2024 )

Filed 1/26/24 P. v. Ferrell CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B320625
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA081838-01
v.
SAMUEL FERRELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Robert G. Chu, Judge. Affirmed.
Katja M. Grosch, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Samuel Ferrell challenges the sufficiency of the evidence to
support his conviction for assault with a semiautomatic weapon
(Pen. Code,1 § 245, subd. (b)). He also contends the trial court
erred by imposing upper term sentences based on factors not
found true by a jury or admitted by him and erred by failing to
dismiss the section 12022.5 enhancement. We affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Two shootings took place in the parking lot of the Sahara
Motel in Lancaster on the evening of August 3, 2021.
Surveillance video from the first shooting captured a white Kia
parking in the lot. A Mercedes then entered the parking lot and
parked two car lengths away from the Kia. Three men emerged
from the Mercedes and appeared to be looking at a car between
the Kia and the Mercedes while they talked. A man stepped out
of the Kia’s passenger seat, in close proximity to the three men,
and exchanged words with them. The man re-entered the Kia
and the others walked back toward the Mercedes. As the Kia
drove away, the video captured three muzzle flashes of a firearm
being fired from the Kia’s passenger side. The three men ducked
behind the Mercedes and then fired back.
The video from the second shooting, approximately two
hours later, showed a white car, a black sport utility vehicle, and
a white Kia arriving at the motel and backing into parking
spaces. A man wearing a hoodie sweatshirt walked into the
parking lot. His right arm or hand was in his sweatshirt, pocket,
1 Undesignated statutory references are to the Penal Code.
2
or waistband. Two other men approached from the same
direction.
The Kia began to move, and immediately shots were fired
out of the Kia through its windshield. The man in the hoodie
ducked and then shot twice at the Kia as it drove away. The man
fled, and the black sport utility vehicle and the white car left the
parking lot.
Deputies found shell casings, bullet fragments, and several
vehicles with bullet holes in the parking lot. They recovered
many shell casings from the parking lot.
A. Lessier Interview
One week later deputies interviewed Ferrell’s girlfriend
Mikayle Lessier. Lessier confirmed she owned the white Kia and
she had been present for the shootings. She said she drove
Ferrell to the Sahara Motel to go to the room of his friend Ricky.
Ferrell argued with a man in the parking lot. Frightened,
Lessier told Ferrell she was leaving. Ferrell got back into the
Kia, and as Lessier began to drive away, he leaned out the
passenger window and fired a gun two or three times. Lessier
said people fired back.
Lessier told the deputies she was screaming and crying; she
wanted to drop Ferrell off, and they began to argue. They went
to Ferrell’s grandmother’s house, where Ferrell argued with his
grandmother. They drove to a gas station and met up with Ricky
and his sister. Together they had three cars: the Kia, a Mercedes
truck belonging to Ricky’s sister, and a white car.
According to Lessier, she wanted to go home, but instead
she drove Ferrell back to the motel after Ricky’s sister refused to
give Ferrell a ride. As they sat in the Kia in the parking lot,
Lessier saw a man walking toward her car; Ferrell, using his
3
phone, did not notice him. Lessier yelled and began to drive
away. As she drove, Ferrell and the man exchanged gunfire.
Ferrell shot through the Kia’s windshield. A deputy and Lessier
discussed Ferrell’s gun:
Q. “What kind of gun was it?”
A. “I think it was black. I don’t know exactly
[unintelligible].”
Q. “OK. Handgun? OK. Do you know the difference
between like a semi-automatic or like a cowboy gun? Like the
revolver? You know [the] type like this?”
A. “I don’t think it was a cowboy gun.”
Q. “No wheels. OK. So it look like this?”
A. “It was black.”
Q. “It was a handgun, right?”
A. “Yeah.”
Q. “OK.”
A. “It was black.”
Q. “Shell casings come out? The little . . . brass things?”
A. “I wanna say yeah but . . . I was just driving.”
B. Charges and Trial
By amended information, Ferrell was charged in counts 1
and 2 with attempted murder (§ 664/187, subd. (a)), in count 3
with assault with a semiautomatic firearm (§ 245, subd. (b)), in
count 4 with possession of a firearm by a felon (§ 29800,
subd. (a)(1)), and in counts 5 and 6, with discharging a firearm
with gross negligence (§ 246.3, subd. (a)). For counts 1, 2, and 3,
it was alleged that Ferrell personally used a firearm (§ 12022.5,
subd. (a)). For counts 1 through 4, it was alleged that Ferrell had
a prior serious and/or violent felony conviction within the
meaning of the “Three Strikes” law (§§ 667, subds. (b)-(j),
4
1170.12). The amended information alleged numerous
aggravating circumstances listed in California Rules of Court,
rule 4.421.
At trial, Lessier testified she was in a relationship with
Ferrell and did not want to testify. She testified that on August
3, 2021, she drove Ferrell to the Sahara Motel, where he was
supposed to meet a friend and retrieve some possessions. They
parked the Kia and waited. Ferrell’s friend did not appear, and,
eventually, Lessier needed to leave.
Lessier testified three men she did not recognize
approached the area of her car. On direct examination, she
testified Ferrell spoke with them briefly and peacefully. On
cross-examination, Lessier testified it seemed to her the three
men were behaving confrontationally but she did not see
anything in their hands. On redirect, she testified she did not
know whether the tone of the exchange between the three men
and Ferrell was casual or aggressive because she was on her
phone at the time.
Lessier testified she drove away, and, as she did, she heard
bullets hitting her car. She did not see Ferrell fire a gun. Lessier
was terrified.
Later they returned to the motel because Ferrell still
wanted to retrieve his possessions. Lessier thought the people
who shot at them had probably left.
Lessier testified a white car and a black car went with
them to the motel. According to Lessier, they were about to leave
when a man dressed in black and wearing a ski mask, with his
hands on his belt, started to walk toward the front of Lessier’s
car. Ferrell did not see the man approaching the car because he
5
was texting his friend. Two other men approached the car as
well.
According to Lessier, she panicked and drove away. The
men shot at her car multiple times. She heard gunshots, but she
did not know if they came from inside or outside her car. She did
not see Ferrell pull out a gun. Lessier’s windshield was fine after
the first shooting, but after the second shooting, she saw a hole in
the middle of the front windshield.
Lessier testified she spoke with deputies about a week after
the shootings. She denied telling them that Ferrell had an
argument with the men who approached the car before the first
shooting. She denied saying Ferrell shot a gun from the
passenger side of the car. She denied saying Ferrell shot his gun
through the windshield of her car during the second incident.
She did not recall whether she said she saw Ferrell with a gun
because the deputies were threatening her life and she was
scared. Lessier said the deputies threatened her with arrest and
the loss of her child if they did not tell them what they wanted to
hear, and because she was being threatened, she did not recall
many things that were said at the police station.
Lessier acknowledged she had previously testified that
during the first incident she heard gunshots but did not know if
Ferrell actually shot a gun; she heard shots hitting her car but
did not hear anything coming from the inside of her car. Lessier
had also testified she did not know how her windshield was
damaged.
Prior to the verdict, Ferrell waived his right to a jury trial
and elected a court trial on his prior convictions and on
aggravating and mitigating factors for sentencing.
6
Ferrell was acquitted of both attempted murder counts and
convicted on the remaining charges. The jury found true the
allegation that Ferrell personally used a firearm in count 3. The
court found Ferrell had suffered five prior convictions, one of
which was a strike offense within the meaning of the Three
Strikes Law. The trial court denied Ferrell’s motion to strike his
strike prior. The court sentenced him to the upper term of 9
years on count 3, doubled pursuant to the Three Strikes Law, and
it imposed and stayed sentences on the other offenses pursuant to
section 654. The court also sentenced Ferrell to 10 consecutive
years for the personal use of a firearm, for a total sentence of
28 years in state prison. Ferrell appeals.
DISCUSSION
I. Sufficiency of the Evidence on Count 3
Ferrell contends the evidence was insufficient to support
his conviction on count 3, assault with a semiautomatic weapon.
“ ‘ “When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.] We determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” [Citation.] In so doing, a
reviewing court “presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1212–
7
1213.) We conclude the evidence was sufficient to support the
conviction on count 3.
Ferrell claims “the prosecution did not introduce any
evidence whatsoever that could support a finding that the
firearm used by appellant was a semiautomatic,” but this is not
the case. In the recorded interview of Lessier played for the jury
at trial, when the deputy asked if she knew the difference
between a semiautomatic gun and a “cowboy gun,” which he
indicated was “[l]ike [a] revolver,” Lessier said she did not think
Ferrell’s gun was a cowboy gun. From this it may be inferred
Ferrell had the other type of gun the deputy mentioned, a
semiautomatic gun. To confirm this, the deputy asked if shell
casings popped out of the gun when it fired, and Lessier gave a
positive, though equivocal, answer. Viewing Lessier’s testimony
in the light most favorable to the prosecution, as we must, a jury
could reasonably conclude beyond a reasonable doubt the gun
Ferrell fired was semiautomatic.
Citing People v. Cruz-Partida (2022) 79 Cal.App.5th 197,
202, fn. 2, Ferrell asserts that “[e]vidence sufficient to support a
conviction for use of a semiautomatic firearm includes a
photograph of the weapon and bullet casings found at the scene.”
As the appellant in Cruz-Partida did not challenge the sufficiency
of the evidence that his weapon was semiautomatic (id. at
p. 206), in no way does that decision establish what evidence is
necessary or sufficient to establish a weapon was semiautomatic.
Cases are not authority for propositions not considered. (People
v. Johnson (2012) 53 Cal.4th 519, 528.)
8
II. Imposition of Upper Term Sentences
Ferrell argues the trial court impermissibly sentenced him
to the upper term sentences on count 3 and the firearm
enhancement. We disagree.
A. Sentencing
Before sentencing, Ferrell filed a motion to dismiss his
prior strike and a sentencing memorandum under a single cover.
In the sentencing memorandum, Ferrell set forth the law that the
court may impose an upper term sentence only when
circumstances in aggravation of the crime justify a term of
imprisonment exceeding the middle term, and the facts
underlying those circumstances have been stipulated to by the
defendant or found true beyond a reasonable doubt by a jury or
the judge. (§ 1170, subd. (b)(2).) Ferrell evaluated the
applicability of various aggravating and mitigating factors set
forth in the California Rules of Court, conceding the applicability
of various aggravating factors and arguing the presence of
multiple mitigating factors.
On May 25, 2022, the court found true five prior offenses
alleged in the amended information and concluded one
constituted a strike. The court proceeded to sentencing and
Ferrell informed the court that he had been seen in an outpatient
clinic for mental health issues and had been taking medication
for depression; documentation of this was provided to the People.
Ferrell’s mother, in addition to describing Ferrell’s good
character, his desire to change, and his new child, advised the
court Ferrell suffered “really bad head trauma” from a fall when
he was a baby. She reported Ferrell had “problems” as a result:
9
his head swelled, he had “swelling on his brain,” and he suffered
nightmares as a child.
The People argued for the maximum sentence. They
argued Ferrell posed a great danger to the community, reviewed
the convictions found true, which featured several crimes
committed shortly after Ferrell was paroled or released from
custody, and argued it was “clear that not long after he is
released he commits additional crimes.” The People argued that
in the current offenses, Ferrell had shot at multiple people,
multiple times; he endangered not only his victims but
bystanders and Lessier; and he attempted to dissuade Lessier
from testifying. They argued Ferrell lacked remorse, endangered
the community and his loved ones, and believed the law did not
apply to him. The People acknowledged Ferrell’s youth at the
time of the offense (31 years old), his young child and his loving
family, but argued no mitigating factor warranted anything less
than the maximum sentence.
The court said it had reviewed the court file, the probation
report,2 Ferrell’s criminal history, and Ferrell’s sentencing
memorandum, which it praised for its detail. The court then
spoke at length, frequently without distinguishing between
factors relevant to the motion to strike Ferrell’s strike prior
versus aggravators and mitigators.3 The court said it had
2 The parties stipulated the court could use the probation
report for sentencing.
3 “Factors in aggravation and mitigation listed in the
California Rules of Court may be relevant to the court’s inquiry”
when considering a request to strike a prior strike. (People v.
Dryden (2021) 60 Cal.App.5th 1007, 1029.)
10
considered the objectives of sentencing and whether Ferrell had a
record of committing similar crimes or crimes of violence. It
discussed similarities between the instant case and Ferrell’s prior
strike case and mentioned his prior convictions for possession of
firearms. The court said, “It appears [Ferrell] is prone to violent
behavior making him a threat to the safety and wellbeing of
others.”
The court said it did not believe Ferrell participated in the
instant offense due to provocation, coercion, or duress not
amounting to a defense. The court noted that in the first
shooting, Ferrell shot first. While the court acknowledged the
defense view that Ferrell acted in self-defense in the second
incident, it was not persuaded because Ferrell chose to return to
the location after the first incident, bringing a firearm and
friends, and he again chose to fire first.
The court said Ferrell was not young and without a
significant criminal record. Listing Ferrell’s five prior offenses,
the court said, “The defendant has shown no signs of ceasing his
criminal behavior. Instead it appears that his behavior is
increasing in severity and seriousness.”
The court said it had “thought about the nature,
seriousness and the circumstances of this crime in this case.”
Noting Ferrell had chosen to fire his gun in an area with
bystanders, voluntarily returned to the location, and again fired
his gun with conscious disregard for the safety of others, the
court found he would be a danger to others if he were not in
prison.
The court acknowledged Ferrell’s strike was nine years old
but observed Ferrell had continued to commit crimes since then.
It expressly found Ferrell had “a long and continuous criminal
11
career,” only interrupted by incarceration, and his crimes
increased in seriousness and severity throughout the years.
It ruled, “Based on all the information that the court has been
provided and based on the same reasoning the court has just
stated, the court is not satisfied on how dismissing the
defendant’s prior strike allegation would be in the interest of
justice and; therefore, defense motion to strike his prior strike
will be denied.”
The court found the circumstances in aggravation “far
outweigh any mitigation.” Based on “the court’s discretion, based
on the nature of the case, defendant’s criminal history, and the
reasonings the court has just cited,” the court imposed upper
term sentences on count 3 and the associated enhancement.
B. Applicable Law
Prior to January 1, 2022, former section 1170,
subdivision (b) provided that when a defendant was sentenced to
prison for a crime with a sentencing triad, the choice of the
appropriate term rested within the sound discretion of the trial
court. Effective January 1, 2022, Senate Bill No. 567 (2021–2022
Reg. Sess.) (Senate Bill No. 567) amended former section 1170 to
provide that a court “shall, in its sound discretion, order
imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2).” (§ 1170, subd. (b)(1); Stats.
2021, ch. 731, § 1.3.) In turn, subdivision (b)(2) of the statute
provides that “[t]he court may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of
the crime that justify the imposition of a term of imprisonment
exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have
been found true beyond a reasonable doubt at trial.” (§ 1170,
12
subd. (b)(2).) Thus, the legislation makes the middle term the
presumptive sentence unless aggravating circumstances
admitted or proven beyond a reasonable doubt justify the upper
term. (People v. Fox (2023) 90 Cal.App.5th 826, 830–831.)
C. Briefing History
Ferrell’s opening brief includes an argument entitled, “The
Trial Court Erred in Imposing the High Term Based on Factors
Neither Found True by the Jury Nor Admitted by Appellant.”
The parties’ briefing on this issue can only be described as
deficient. First, neither Ferrell nor the People disclosed that
Ferrell had waived the right to a jury trial and selected a court
trial on aggravating and mitigating factors. Second, the People
appeared unaware Ferrell had been sentenced after the effective
date of Senate Bill No. 567; their arguments were founded on the
inaccurate premise that Ferrell had been sentenced under an
earlier sentencing scheme.
We therefore requested supplemental briefing on the
following question: “Recognizing that appellant was sentenced in
May 2022, after the effective date of the amendments to Penal
Code section 1170 made by Senate Bill No. 567 (Stats. 2021,
ch. 731, § 1.3), what is the effect of appellant’s express waiver of a
jury trial on aggravating factors (Reporter’s transcript, p. 204) on
his argument that the imposition of the upper term sentence
violated Penal Code section 1170, subdivision (b)(2) because the
factors relied upon by the trial court to justify the upper term
were neither admitted by appellant nor found true by a jury?”
The People did not respond. In supplemental briefing,
Ferrell argued that although he waived a jury trial on
aggravating factors, the trial court relied on impermissible
13
factors in imposing the upper term because he had the right to a
court trial with findings made beyond a reasonable doubt.
D. Ferrell’s Contentions
1. Initial Briefing
It is difficult to discern arguments from the opening brief
because Ferrell’s assertions are general and conclusory, he does
not acknowledge his waiver of a jury trial, and although there are
occasional references to proving aggravating factors to the jury or
the court, he generally appears to argue that the absence of a
jury trial requires the sentence to be vacated, as in his contention
that the purported error was not harmless because “it cannot be
concluded with sufficient certainty that some of the aggravating
factors on which the trial court relied would have been found true
if submitted to the jury.” Ferrell then admitted in his
supplemental brief that he waived his right to a jury trial on
aggravating circumstances. Therefore, we do not address
contentions that the aggravators should have been tried to a jury.
To the extent we can identify other coherent arguments from
Ferrell’s briefing, we address them below.
Ferrell contends the trial court relied on impermissible
factors in imposing the upper term. He asserts the court relied
on four factors to impose the upper term: (1) five priors, including
one strike, and the true finding on the firearm enhancement;
(2) Ferrell was not acting in self-defense or in response to
provocation in either incident; (3) Ferrell had a lengthy and
continuous criminal career and his criminal behavior appeared to
be increasing in seriousness; and (4) Ferrell was a danger to
others. Ferrell acknowledges that pursuant to section 1170,
subdivision (b)(3), the court could properly rely on his prior
14
convictions as a basis for imposing the upper terms. He then lists
in a brief, conclusory manner what appear to be four alleged
errors.
First, Ferrell argues the court’s comment that he was not
acting in self-defense or in response to provocation was “baseless”
because the jury had been given a self-defense instruction and
found him not guilty of two counts of attempted murder. We
reject this argument. The acquittals for attempted murder
related to the first shooting, but the court imposed the upper
term sentences on a count and enhancement that arose from the
second shooting. We therefore discern no way in which the self-
defense instruction and acquittals on attempted murder charges
has any bearing on the conviction and enhancement upon which
Ferrell was sentenced, and his single-sentence argument neither
acknowledges that the acquittals pertained to a different incident
nor provides reasoned argument as to the relevance of the
acquittals to the upper term sentences.4
Next, Ferrell argues that his “arrests and other convictions,
not found true, categorically cannot be used to impose a high
term.” This argument, presented in a single sentence and
supported by neither reasoned argument nor citation to legal
authority, fails to demonstrate error. The court found true five
4 The court did mention both shootings in its remarks, but it
clearly stated that it was considering whether Ferrell
participated in “this crime”—that is, count 3, upon which he was
sentenced—in self-defense, and the court’s reference to the first
shooting was very brief, in contrast to its more detailed
discussion of whether Ferrell acted in self-defense in the second
shooting.
15
prior convictions. In addressing altogether the factors relevant to
its decision not to strike a prior strike under People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 (Romero) and the factors in
aggravation and mitigation, the court discussed Ferrell’s “lengthy
criminal history,” including his history of arrests and convictions
and the fact that his prior strike was for the same offense as that
committed here. The court concluded Ferrell was “prone to
violent behavior[,] making him a threat to the safety and
wellbeing of others.” The court also found (1) Ferrell had “a long
and continuous criminal career” that paused only when he was
incarcerated, and (2) his crimes increased in seriousness and
severity throughout the years. As Ferrell acknowledges, these
findings correspond to California Rules of Court, rules 4.421(b)(1)
(“The defendant has engaged in violent conduct that indicates a
serious danger to society”) and 4.421(b)(2) [“The defendant’s prior
convictions as an adult or sustained petitions in juvenile
delinquency proceedings are numerous or of increasing
seriousness”]).
Ferrell asserts, without explanation, argument, or citation
to authority, that the “court’s finding that appellant’s criminal
history was lengthy, continuous, and increasing in severity are no
longer permissible factors to support imposition of the high
term.” However, as noted above, California Rules of Court, rule
4.421(b)(2) lists as a factor in aggravation that “[t]he defendant’s
prior convictions as an adult or sustained petitions in juvenile
delinquency proceedings are numerous or of increasing
seriousness.”
Finally, Ferrell states, “Contrary to the trial court’s
pronouncement, self-defense is a factor in mitigation and lack
thereof is not a factor in aggravation.” The court said it did not
16
believe Ferrell had participated in the crime due to provocation,
coercion, or duress not amounting to a defense, but we find no
indication the court considered the absence of self-defense an
aggravating factor. To the contrary, it appears the court was at
that point in its remarks addressing possible mitigators, as it
next considered whether Ferrell had no significant record of prior
criminal conduct, another mitigating factor listed in California
Rule of Court, rule 4.423.
2. Supplemental Briefing
In his supplemental briefing, Ferrell argues he was entitled
to a court trial on each aggravating factor, “with a finding that
they were true beyond a reasonable doubt,” and the court was
required to “rely on factors found true beyond a reasonable doubt
pursuant to Penal Code section 1170(b)(2).” To the extent Ferrell
is arguing his sentence is invalid because the trial court did not
expressly state it was employing a reasonable doubt standard, he
has failed to present argument and legal authority to support this
claim, and we find it to be without merit.
First, at the sentencing hearing Ferrell did not challenge
the imposition of the upper terms on this basis or ask the trial
court to clarify whether it was finding any or all of the
aggravating factors it relied on true beyond a reasonable doubt.
The forfeiture doctrine “appl[ies] to claims involving the trial
court’s failure to properly make or articulate its discretionary
sentencing choices.” (People v. Scott (1994) 9 Cal.4th 331, 353.)
The court’s failure to state on the record that it was finding true
beyond a reasonable doubt each aggravating factor it relied on in
imposing upper terms is precisely the type of sentencing error
that is forfeited unless raised in the trial court. (Id. at pp. 351–
353.) “Routine defects in the court’s statement of reasons are
17
easily prevented and corrected if called to the court’s attention.”
(Id. at p. 353.)
Second, Ferrell has not identified any authority requiring
the court to state on the record that it was finding the
aggravating circumstances true beyond a reasonable doubt.
Section 1170, subdivision (b)(5) requires the court only to “set
forth on the record the facts and reasons for choosing the
sentence imposed.” (§ 1170, subd. (b)(5).) The California Rules of
Court provide that when, as here, “the sentencing judge is
required to give reasons for a sentence choice, the judge must
state in simple language the primary factor or factors that
support the exercise of discretion. The statement need not be in
the language of the statute or these rules.” (Cal. Rules of Court,
rule 4.406(a).) Here, the trial court complied with these
authorities by stating on the record the factors it relied on in
imposing the upper terms.
Finally, “[i]n the absence of evidence to the contrary, we
presume that the court ‘knows and applies the correct statutory
and case law.’ ” (People v. Thomas (2011) 52 Cal.4th 336, 361.)
The record contains no indication the trial court was unaware of
the requirements of section 1170, subdivision (b), as amended by
Senate Bill No. 567, effective January 1, 2022, at the sentencing
hearing in May 2022. In fact, the record affirmatively
demonstrates the court knew of the changes in the law, because it
expressly advised Ferrell he had a right to a jury trial on
aggravating factors. Thus, there is no basis for departing from
the presumption that the court knew of and correctly applied
section 1170, subdivision (b).
18
At the close of his supplemental briefing, Ferrell argues,
“When the trial court imposed the high term after denying the
appellant’s Romero motion, it added the high term was ‘based on
the court’s discretion, based on the nature of the case, defendant’s
criminal record and the reasoning the court has just cited.’ . . .
However, the trial court no longer had that discretion, as it can
only rely on factors found true beyond a reasonable doubt
pursuant to Penal Code section 1170(b)(2). The ‘nature of the
case’ is too vague to be an aggravating factor [under California
Rules of Court, rule] 4.421 even if it was found beyond a
reasonable doubt, which it was not. The only valid basis for
imposing the high term were the priors, which were indeed found
true.” Taking the court’s statement in isolation, Ferrell presents
it as though the court purported to have unfettered discretion to
impose upper terms based purely on its assessment of the case.
But when the court made this statement, immediately before
pronouncing sentence, it had already found true Ferrell’s prior
convictions and multiple aggravating factors, rejected several
mitigating factors, and concluded the factors in aggravation “far
outweigh[ed]” any factors in mitigation. Reading the sentence in
context, we understand the court to say it had the discretion to
select upper terms based on Ferrell’s criminal record, the
aggravating factors it had found true pursuant to section 1170,
subdivision (b)(2), and its conclusion that the aggravators
outweighed any mitigators; and that, on the totality of the
circumstances, it chose to exercise that discretion to impose
upper term sentences. (§ 1170, subd. (b)(2).) Ferrell has not
demonstrated error.
19
III. Failure to Dismiss the Section 12022.5 Enhancement
Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 721, § 1) amended section 1385 to require courts to consider
certain enumerated factors when exercising their discretion to
strike sentence enhancements and to afford great weight to the
presence of mitigating circumstances listed in the statute, unless
the court finds dismissal of the enhancement would endanger
public safety. (§ 1385, subd. (c)(2).) One of these mitigating
factors is, “The application of an enhancement could result in a
sentence of over 20 years. In this instance, the enhancement
shall be dismissed.” (Former § 1385, subd. (c)(3)(C)5.)
Because the imposition of the upper term on the
enhancement resulted in a total sentence in excess of 20 years,
Ferrell argues former section 1385, subdivision (c)(3)(C) “results
in mandatory relief: the statute says that in such an instance,
‘the enhancement shall be dismissed.’ ” This argument has been
rejected by numerous courts. (People v. Lipscomb (2022) 87
Cal.App.5th 9, 17–21; People v. Renteria (2023) 96 Cal.App.5th
1276, 1284–1291; People v. Mendoza (2023) 88 Cal.App.5th 287,
295–297; People v. Anderson (2023) 88 Cal.App.5th 233, 239–241,
review granted Apr. 19, 2023, S278786.) We agree with these
decisions and reject Ferrell’s argument that dismissal was
mandatory pursuant to section 1385 because the enhancement
resulted in a sentence exceeding 20 years.
5 This provision was later redesignated subdivision (c)(2)(C).
(Stats. 2022, ch. 58, § 15.)
20
In his reply brief, Ferrell acknowledges these authorities
but claims he argued in his opening brief that “the fact that the
enhancement made appellant’s sentence over 20 years greatly
favors dismissal.” To any extent the highly conclusory, six-
sentence analysis contained in this section of the opening brief
can be construed as raising any legal argument beyond the claim
that he is entitled to mandatory relief, it appears to be based on
appellant’s assertion that his “Romero motion included a request
that the [s]ection 12022.5 enhancement be stricken pursuant to
[s]ection 1385,” but the trial court only considered dismissing the
prior strike when ruling on the Romero motion.
In the trial court, Ferrell’s Romero motion sought only the
dismissal of his prior strike. Even when Ferrell discussed the
recent amendments to section 1385, he argued only that the
mitigating factors meant “the [c]ourt should dismiss the strike
prior.” Ferrell did not ask the court to dismiss the section
12022.5 enhancement in the Romero motion. It was appropriate
for the court, then, to have “only considered dismissing the strike
prior, saying nothing about the enhancement,” as Ferrell alleges.
Ferrell did mention the enhancement in the portion of his
post-trial pleading that constituted the sentencing memorandum.
The record demonstrates only that the court did not explain its
reasons for not dismissing the enhancement. Section 1385,
however, does not require the court to state its reasons when it
does not dismiss an enhancement. (See In re Coley (2012)
55 Cal.4th 524, 560 [“[A]lthough a trial court is required to state
on the record its reasons for striking a prior conviction (§ 1385,
subd. (a)), there is no similar statutory requirement of an on-the-
record statement of reasons when a court declines to strike a
prior”].)
21
Finally, Ferrell’s contention that the enhancement caused
his sentence to exceed 20 years greatly favors its dismissal
focuses on one isolated phrase to the exclusion of the rest of the
statutory language: section 1385 states the proof of mitigating
circumstances “weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety. ‘Endanger public
safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious
danger to others.” (§ 1385, subd. (c)(2), italics added.) Ferrell
also does not consider in this context the trial court’s statements
at sentencing that he was “a threat to the safety and wellbeing of
others” and he would be a danger to others if he were not in
prison. As Ferrell has not fully stated the applicable law,
acknowledged the court’s findings, or offered an argument that
accounts for the law in full and these facts, Ferrell has failed to
present reasoned argument in support of his perfunctory claim.
(People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [“We discuss
those arguments that are sufficiently developed to be cognizable.
To the extent defendant perfunctorily asserts other claims,
without development . . . they are not properly made, and are
rejected on that basis”], abrogated on other grounds by People v.
Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
22
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
23