People v. Frias CA2/8 ( 2024 )

Filed 10/23/24 P. v. Frias CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B329215
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA150959
v.
DANIEL FRIAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Roger Ito, Judge. Affirmed.
Benjamin Owens, 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 Amanda V. Lopez,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Daniel Frias of first degree murder and
found true several aggravating circumstances and firearm
enhancements.
After rival gang members carjacked and “pistol-whipped”
him at a Jack in the Box, Frias planned his revenge with two
others. Frias entered the home of a young “fool” he believed to be
one of the rivals while a compatriot robbed two people in front of
the home. Frias shot the assumed rival dead in a hallway,
emptying his firearm and shooting at close range, in front of
people Frias believed were the victim’s family. Frias admitted
these acts on tape and said he felt no remorse. In fact, he felt
better after the killing and only was remorseful that the victim,
or someone else, “made me look like a bitch.”
We do not detail additional evidence because Frias’s appeal
challenges just one aspect of his sentencing.
The trial court sentenced Frias in January 2023. This was
a full year after the effective date of Senate Bill No. 81 (2021-
2022 Reg. Sess.), which amended Penal Code section 1385 to
empower courts to dismiss enhancements in furtherance of
justice and added a list of mitigating circumstances heavily
favoring dismissal to guide this determination. (See People v.
Walker (2024) 16 Cal.5th 1024, 1030–1031 (Walker); Pen. Code,
§ 1385, subd. (c).) All further statutory citations are to the Penal
Code.
Frias’s sentencing also took place five years after the
effective date of Senate Bill No. 620 (2017-2018 Reg. Sess.), which
amended section 12022.53 to enable courts to strike firearm
enhancements. (See People v. Lipscomb (2022) 87 Cal.App.5th 9,
15–16.)
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Ahead of Frias’s sentencing, in October 2022, the
prosecution filed a sentencing memorandum that noted the court
had discretion to dismiss the firearm enhancements under
sections 1385 and 12022.53, subdivision (h). The memorandum
highlighted several aggravating factors and argued the court
should impose 50 years to life on the first count (for murder) and
should stay the punishment on the second count (for burglary).
Frias’s attorney filed a declaration that did not ask the
court to dismiss any enhancement. Rather, the declaration
explained Frias wished to proceed with sentencing before a
hearing under People v. Franklin (2016) 63 Cal.4th 261, as the
Franklin brief was a work in progress and the court had “very
little sentencing discretion.”
At the January 2023 sentencing hearing, Frias’s attorney
did not move to strike any enhancement. He reiterated that “this
is an indeterminate sentence” and said he largely did not object
to the prosecution sentencing memorandum.
The trial court acknowledged it had discretion to reduce or
stay the firearm allegation but determined it would not do so in
light of the circumstances of this crime, Frias’s “callous and
wanton use of the weapon.”
The court sentenced Frias to 50 years to life. This was 25
years to life on the murder count, plus a consecutive 25 years to
life for the firearm enhancement under section 12022.53,
subdivision (d) (personal and intentional discharge of a firearm
causing death). The court stayed the terms related to the
burglary count.
On appeal, Frias asserts section 1385, subdivision (c)(2)(C),
required dismissal of the firearm enhancement. This subdivision
lists the following as a mitigating circumstance: “The application
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of an enhancement could result in a sentence of over 20 years. In
this instance, the enhancement shall be dismissed.”
(§ 1385, subd. (c)(2)(C).)
Frias claims he satisfied this provision, and establishing
any of the listed mitigating circumstances erects a rebuttable
presumption the enhancement should be dismissed. Frias
further argues the trial court was unaware of its discretion and
violated his due process rights in imposing the enhancement
without making an explicit finding that dismissal would
endanger public safety.
Frias forfeited his appellate challenge by not objecting or
raising this issue at the trial court. (See People v. Scott (2015) 61
Cal.4th 363, 406 [absent an objection to the sentence at trial, a
defendant may not assert appellate claims involving the trial
court’s failure to make or to articulate discretionary sentencing
choices]; People v. Coleman (2024) 98 Cal.App.5th 709, 723–724
[defendant forfeited the claim that his enhancements should have
been stricken under amended section 1385 by not asking the trial
court to strike them].)
Contrary to what Frias claims, the record does not show
the trial court was unaware of section 1385, subdivision (c). And
there is no unauthorized sentence problem preventing forfeiture.
(See In re G.C. (2020) 8 Cal.5th 1119, 1130 [an unauthorized
sentence is one that could not lawfully be imposed in the case
under any circumstance].) In Walker, our Supreme Court
recently ruled there is no presumption in favor of dismissal under
amended section 1385, subdivision (c). (Walker, supra, 16 Cal.5th
at pp. 1028–1033.) Courts retain discretion to impose
enhancements even when mitigating circumstances are present
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and absent a finding that dismissal would endanger public safety.
(Id. at p. 1029.) Frias’s sentence thus was legally authorized.
Frias claims his trial counsel was ineffective in not seeking
to dismiss the enhancement under the Penal Code provision he
raises now. This claim requires Frias to show deficient
performance by counsel and prejudice. (People v. Johnsen (2021)
10 Cal.5th 1116, 1165.) On direct appeal, we find deficient
performance only if (1) the record shows counsel had no rational
tactical purpose for the challenged omission, (2) counsel was
asked for a reason and failed to provide one—something that did
not happen here—or (3) no satisfactory explanation could
exist. (See ibid.)
Defense counsel’s failure to raise subdivision (c)(2)(C) of
section 1385 was eminently rational. On its face, this subdivision
applies only when “application of an enhancement could result in
a sentence of over 20 years.” (§ 1385, subd. (c)(1)(C), italics
added.) Here, without the enhancement, the murder count
meant an indeterminate term of 25 years to life. (See § 190,
subd. (a).) Frias cites no case or other authority holding this
provision applies whenever the base term is greater than 20
years, as here. His interpretation of the statute is incorrect. (See
Couzens, Bigelow & Prickett, Sentencing California Crimes (The
Rutter Group 2024) § 12:11, subd. (F)(3) [“There will be no
entitlement to relief unless it is the application of the term for
the enhancement that results in a sentence of longer than 20
years. Accordingly, the right to relief under this provision will
not be available to defendant[s] sentenced under the
Indeterminate Sentencing Law (ISL).”].)
Presumably, the Legislature would say so if it intended to
do away with enhancements for defendants with indeterminate
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sentences. (See People v. Mendoza (2023) 88 Cal.App.5th 287,
295 [courts do not presume the Legislature, when enacting a
statute, intends to overthrow long-established legal principles
unless this intention is clearly expressed or necessarily implied].)
There was no ineffective assistance of counsel.
DISPOSITION
We affirm the judgment.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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