People v. Burciaga CA2/5 ( 2024 )

Filed 10/31/24 P. v. Burciaga CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B329464
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. KA105904)
MICHAEL BURCIAGA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Juan Carlos Dominguez, Judge. Sentence
vacated; remanded for resentencing.
Heather L. Beugen, 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, Senior
Assistant Attorney General, Idan Ivri and Nikhil Cooper, Deputy
Attorneys General for Plaintiff and Respondent.
In 2014, Michael Burciaga was convicted of two counts of
attempted murder, one count of shooting at an occupied motor
vehicle, and one count of felon in possession of a firearm, with
associated enhancements. In 2022, Burciaga filed a petition for
writ of habeas corpus with the trial court that the court granted
in part. In 2023, the trial court fully resentenced Burciaga and
dismissed certain enhancements that were not supported by the
evidence, but reimposed a personal firearm use enhancement of
25 years to life in the attempted murder in count 1 pursuant to
Penal Code1 section 12022.53, subdivision (d).
On appeal, Burciaga contends that the trial court did not
understand that, pursuant to section 1385, subdivision (c)(2), it
had discretion to dismiss the section 12022.53, subdivision (d)
enhancement in count 1, and he urges us to remand the case to
permit the court to exercise its discretion in the first instance.
The People counter that Burciaga forfeited the contention on
appeal by failing to object at the resentencing hearing. In the
event that we conclude the contention was not forfeited, the
People acknowledge that the trial court misstated the analysis for
determining whether to impose an enhancement under section
1385, subdivision (c)(2), but assert that the error was harmless
because the trial court would have exercised its discretion to
impose the enhancement, regardless. The People further assert
that the trial court imposed and stayed 20-year enhancements
pursuant to section 12022.53, subdivision (c) in counts 2 and 3,
and that the abstract of judgment must be corrected to properly
reflect the trial court’s pronouncement of sentence.
We agree with Burciaga. We vacate the sentence and
remand the matter to permit the trial court to fully resentence
1 All further statutory references are to the Penal Code.
2
Burciaga and determine whether to exercise its discretion
pursuant to section 1385.2 In all other respects, the judgment is
affirmed.
FACTS AND PROCEDURAL HISTORY
A. The Shooting3
On May 19, 2013, Edward Campbell, an original member of
the Puente Trece gang and a member of its Perth Street clique,
drove a vehicle to La Puente and picked up Adrian Torres,
another member of that gang and a member of the Ballista
clique. Campbell offered to give Torres a ride home, but told
Torres that he first had to go to Burciaga’s brother Matthew’s
house, to get answers about the death of a Puente Trece gang
member who had been shot the night before. Torres knew there
was “bad blood” between Campbell and Matthew.
When Campbell and Torres arrived at Matthew’s house,
there were three people outside in front of the garage: Mathew,
Robert Valdivia, and Burciaga. Burciaga and Valdivia were
members of the Puente Trece gang.
2 Contrary to the People’s assertions, viewing the trial
court’s comments as a whole, it appears likely that the court
intended to impose and stay 10-year enhancements pursuant to
section 12022.53, subdivision (b) in counts 2 and 3. In light of our
disposition, which remands for full resentencing, we need not
address the issue.
3 The facts are taken from this court’s prior unpublished
opinion in People v. Burciaga (Apr. 7, 2016, B263517).
3
Before getting out of the vehicle, Campbell handed Torres a
gun, which Torres placed in the center console. Campbell then
told the men who were in front of the garage, “I’m not armed. I
just—I just need to ask some questions.”
Campbell exited the vehicle and walked toward Matthew,
Valdivia, and Burciaga. Torres remained in the vehicle.
Burciaga approached Campbell; Matthew and Valdivia remained
near the garage. Burciaga and Campbell stood close to one
another and spoke. The conversation led to an argument. Torres
then heard four or five gunshots and saw Burciaga shoot
Campbell. Campbell backed up, holding his stomach. Matthew
and Valdivia were still near the garage.
Campbell walked toward the vehicle; he was crouched over
and holding his stomach. Torres moved from the passenger seat
of the vehicle to the driver’s seat. Campbell, whose shirt was
bloody, entered the passenger seat of the vehicle and asked
Torres to take him to a hospital. While Campbell’s car was still
parked, Torres heard Valdivia yell, “That’s his nephew. Get
him.” Burciaga shot at the vehicle. Torres returned fire and
drove off. En route to the hospital, Torres put his hand on
Campbell’s stomach to hold in Campbell’s organs.
B. Conviction and Sentencing
In 2014, the jury found Burciaga guilty of the attempted
murders of Campbell and Torres (§§ 187, subd. (a) & 664, counts
1 and 2, respectively), shooting at an occupied motor vehicle
(§ 246, count 3), and felon in possession of a firearm (§ 29800,
subd. (a)(1), count 4). The jury found true the allegations that
Burciaga personally and intentionally discharged a firearm in the
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commission of the offenses charged in counts 1 through 3
(§ 12022.53, subds. (b)–(d)), and that those offenses were
committed for the benefit of a criminal street gang in violation of
section 186.22, subdivision (b). In a separate proceeding, the trial
court determined that Burciaga had suffered three prior
convictions within the meaning of section 667.5, subdivision (b).
The trial court sentenced Burciaga to consecutive 40-year-to-life
terms on counts 1 and 2, plus one year for each prior conviction,
for a total of 83 years to life in prison. The trial court stayed
imposition of sentence on counts 3 and 4 pursuant to section 654.
C. Appeal and First Resentencing
On appeal in 2016, another panel of this court reversed the
gang enhancement in count 1 and modified the judgment to
accurately reflect Burciaga’s custody credits, but otherwise
affirmed the judgment.
Following remand, the trial court struck the gang
enhancement in count 1 and resentenced Burciaga to 73 years to
life in prison.4
D. Habeas Corpus Petition
In 2022, Burciaga, acting in pro. per., filed a habeas corpus
petition with the trial court, arguing in relevant part that the
section 12022.53, subdivision (d) personal gun use enhancements
in counts 1 and 2 and the section 186.22, subdivision (b)
enhancements in counts 1 through 3 should be dismissed based
4 It is unclear how the court calculated the total sentence.
5
on the Los Angeles District Attorney’s Office Special Directives
from December 2020.5 The trial court granted the petition in
part, but on a different basis. The court ruled that, based on the
People’s concession that neither of the victims in counts 1 and 2
was struck by gunfire, there was insufficient evidence to support
the findings that Burciaga personally discharged a firearm
causing great bodily injury or death under section 12022.53,
subdivision (d) in those two counts. The People further conceded,
and the trial court agreed, that a gang enhancement pursuant to
section 186.22, subdivision (b)(4)(B), was also insufficiently
supported. The matter was set for resentencing.
E. Resentencing
At the resentencing hearing, the trial court indicated that
it intended to strike the section 12022.53, subdivision (d)
enhancements in counts 1 and 2 and the section 186.22,
subdivision (b)(4)(B) enhancement in count 3. In counts 1 and 2,
the court was undecided regarding whether to impose
enhancements under section 12022.53, subdivision (b) or
subdivision (c), which the jury also found true. The court stated
that it intended to impose one of those two enhancements in each
count and was deciding between a total sentence of 34 years to
life or 54 years to life. However, the court continued the hearing
so that the parties could obtain the records of Burciaga’s conduct
in prison for the court to consider, explaining: “I am on the fence
on whether to impose the 10- or the 20-year [enhancement] . . . as
5 The habeas petition is not contained in the record on
appeal.
6
I sit now, I will impose one of those two. Now, of course my
position may change after I see his [conduct file] . . . .”
The parties subsequently provided the court with
Burciaga’s prison records for the next hearing.
At the final hearing on resentencing, the court explained
that both the court and the People were previously mistaken in
their belief that neither of the attempted murder victims was
shot. In fact, Campbell, the victim in count 1, had been shot and
seriously injured, so there was substantial evidence to support
the section 12022.53, subdivision (d) enhancement in count 1. As
the People conceded, however, there was insufficient evidence to
support the enhancements associated with the attempted murder
of Torres in count 2 and the shooting at an occupied vehicle
conviction in count 3 because no one was shot in connection with
either count. The court stated that it was fully resentencing
Burciaga to a term of 39 years to life in prison, as follows: In
count 1, the court imposed a term of 7 years to life for the
attempted murder, plus 25 years to life for the gun enhancement
pursuant to section 12022.53, subdivision (d). In count 2, a
consecutive term of 7 years to life for the attempted murder, plus
a 10-year term pursuant to section 12022.53 that the trial court
stayed. In count 3, five years for shooting at an occupied vehicle,
plus a 10-year enhancement pursuant to section 12022.53, both
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stayed pursuant to section 654.6 Finally, in count 4, a term of
two years, also stayed pursuant to section 654.7
After the court pronounced sentence, Burciaga asked to be
heard regarding the District Attorney’s Office Special Directives.
The court explained that the directives were not law, but could be
followed at the discretion of the prosecutor. The trial court asked
if the People would consider withdrawing the section 12022.53,
subdivision (d) enhancement, and the prosecutor declined.
The court then stated: “Now, pursuant to new legislation
1385, it has a bullet point that says no enhancement can be more
than 20 years or that would lead a sentence to over 20 years.
That does not apply to [section] 12022.53[, subdivision] (d)
because by its very terms it calls for [a] 25-to-life sentence. If the
court—if the court were to follow the new legislation—I just read
a case yesterday that came out on this—it would mean an
effective repeal of that statute; in other words, that the 1385—the
new 1385 legislation would effectively repeal [section]
12022.53[, subdivision] (d), would also repeal [section]
12022.53[, subdivision] (b); so that does not apply. So that
6 The court inconsistently identified the 10-year firearm use
enhancements in counts 2 and 3 as being imposed under section
12022.53, subdivision (c)—under which a 20-year enhancement
must be imposed—and “the lowest one”—i.e., section 12022.53,
subdivision (b), which carries a 10-year enhancement term.
7 In total, the court struck the section 12022.53,
subdivision (d) enhancements in counts 2 and 3, the section
186.22, subdivision (b)(4)(B) enhancement in count 3, and the
three one-year prior prison term enhancements imposed
pursuant to section 667.5, subdivision (b).
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enhancement will stand. All of the other enhancements in your
case have been stricken because you had three one-year priors.
Of course, the other two [section 12022.53, subdivision] (d)
enhancements didn’t apply to you, but the court could have
imposed [section 12022.53, subdivision] (c) or (b), but I did impose
but stayed.”
Burciaga timely appealed.
DISCUSSION
A. Legal Principles
Section 12022.53, subdivision (d) provides that when, in the
commission of a specified felony, a person “personally and
intentionally discharges a firearm and proximately causes great
bodily injury, as defined in [s]ection 12022.7, or death, to a
person other than an accomplice, [the person discharging the
firearm] shall be punished by an additional and consecutive term
of imprisonment in the state prison for 25 years to life.” When
Burciaga was sentenced in 2014, “section 12022.53 prohibited
courts from striking its enhancements. Former subdivision (h) of
section 12022.53 provided: ‘Notwithstanding [s]ection 1385 or
any other provision of law, the court shall not strike an allegation
under this section or a finding bringing a person within the
provisions of this section.’ (Stats. 1997, ch. 503, § 3, p. 3137.)
Thus, if a section 12022.53 enhancement was alleged and found
true, its imposition was mandatory. [Citations.] In 2017, the
Legislature enacted Senate Bill No. 620 (2017–2018 Reg. Sess.)
(Senate Bill 620), amending section 12022.53[, subdivision] (h) to
remove this prohibition. (Stats. 2017, ch. 682, § 2.) Section
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12022.53[, subdivision] (h) now provides that a ‘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 this section.’ ” (People v. Tirado (2022) 12
Cal.5th 688, 695–696.)
At the time that Senate Bill 620 became effective, “[s]ection
1385 provide[d] that a court may, ‘in furtherance of justice, order
an action to be dismissed.’ (Id., subd. (a).) Though section 1385
literally authorizes the dismissal of ‘an action,’ it [was] construed
to permit the dismissal of parts of an action (see People v. Burke
(1956) 47 Cal.2d 45, 51), including a weapon or firearm use
enhancement (see People v. Price (1984) 151 Cal.App.3d 803,
818–819, People v. Dorsey (1972) 28 Cal.App.3d 15, 17–18).”
(People v. Tirado, supra, 12 Cal.5th at p. 696.) Subsequently,
“Senate Bill No. 81 [(2021–2022 Reg. Sess.)] and Assembly Bill
No. 200 (2021–2022 Reg. Sess.) . . . respectively added, and later
amended, section 1385, subdivision (c).” (People v. Cota (2023) 97
Cal.App.5th 318, 334–335.) “[S]ection 1385, subdivision (c)(1)
now provides that ‘the court shall dismiss an enhancement if it is
in the furtherance of justice to do so,’ and subdivision (c)(2) states
that ‘[i]n exercising its discretion under this subdivision, the
court shall consider and afford great weight to evidence’ of nine
listed ‘mitigating circumstances,’ any ‘one or more’ of which
‘weighs greatly in favor of dismissing the enhancement, unless
the court finds that dismissal of the enhancement would
endanger public safety.’ ” (People v. Mazur (2023) 97 Cal.App.5th
438, 443–444, review granted Feb. 24, 2024, S283229.) Among
the mitigating circumstances enumerated in section 1385 is
subdivision (c)(2)(C), at issue here, which states: “The application
of an enhancement could result in a sentence of over 20 years. In
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this instance, the enhancement shall be dismissed.”8 Despite this
facially mandatory language, all appellate courts to consider the
issue have concluded that section 1385, subdivision (c)(2)(C)
permits, but does not require a court to dismiss an enhancement,
like section 12022.53, subdivision (d), that would result in a
sentence of over 20 years in prison. (People v. Cota, supra, 97
Cal.App.5th at p. 337; People v. Renteria (2023) 96 Cal.App.5th
1276, 1284–1290; People v. Mendoza (2023) 88 Cal.App.5th 287,
294–297; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15–21.)
B. Analysis
Burciaga argues that the trial court did not understand
that it had discretion to dismiss the 25-years-to-life personal gun
use enhancement in count 1 pursuant to section 1385,
subdivision (c)(2)(C). The People assert that Burciaga forfeited
the argument by failing to object at the resentencing hearing.
Alternatively, the People argue that, although the trial court
misstated the proper analysis under section 1385, subdivision (c),
any error was harmless because the court would have imposed
the section 12022.53, subdivision (d) enhancement in count 1
regardless. We agree with Burciaga.
We reject the People’s assertion that Burciaga forfeited his
contention by failing to raise it below. It is clear from the record
8 With the exception of the mitigating circumstance set
forth in section 1385, subdivision (c)(2)(B), the remaining
mitigating circumstances do not contain the “shall be dismissed”
language. Section 1385 is subdivision (c)(2)(B) provides:
“Multiple enhancements are alleged in a single case. In this
instance, all enhancements beyond a single enhancement shall be
dismissed.”
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that the trial court conducted a full resentencing under the
current laws, including amended section 1385. Burciaga
contends that the court was not aware of the scope of its
discretion. We may review such a legal error in sentencing when
raised for the first time on appeal. (People v. McCullough (2013)
56 Cal.4th 589, 594.)
As the People acknowledge, the trial court explained to
Burciaga at the hearing that section 1385, subdivision (c)(2)(C)
did not apply to an enhancement like section 12022.53,
subdivision (d), which itself imposes a prison term that exceeds
20 years, because if it did, section 1385, subdivision (c)(2)(C)
would effectively repeal section 12022.53, subdivision (d). The
court’s explanation is incorrect. Section 1385, subdivision
(c)(2)(C) would only have the effect of repealing section 12022.53,
subdivision (d) if the provision required that the court dismiss
enhancements imposed pursuant to section 12022.53, subdivision
(d) in every instance. That is not the case. As we stated above,
every appellate court to consider the issue has held that courts
have discretion to impose or dismiss a section 12022.53,
subdivision (d) enhancement pursuant to section 1385,
subdivision (c). (People v. Cota, supra, 97 Cal.App.5th at p. 337;
People v. Renteria, supra, 96 Cal.App.5th at pp. 1284–1290;
People v. Mendoza, supra, 88 Cal.App.5th at pp. 294–297; People
v. Lipscomb, supra, 87 Cal.App.5th at pp. 15–21.)
We are not persuaded by the People’s argument that the
court’s statement that Campbell “was hit in the stomach and was
seriously injured” demonstrates that the court impliedly found
that it was not in the furtherance of justice to dismiss the
enhancement. When the court made that statement, it was
explaining to the parties that it made a mistake when they
12
initially discussed the counts in which section 12022.53,
subdivision (d) enhancements were not supported by the
evidence. The court clarified that the evidence did not support
the enhancements in counts 2 and 3, because no one was injured
by a firearm in relation to those counts. Campbell was seriously
injured in count 1, however, “and that 25 to life, the [section
12022.53, subdivision] (d) [enhancement], applies to that. The
People conceded count 2 and count 3 [in response to Burciaga’s
habeas corpus petition]. They never conceded to count 1.”
The court’s explanation of which counts were affected by its
partial grant of Burciaga’s habeas petition is not tantamount to a
statement that it would have imposed the section 12022.53
enhancement in count 1 even if it knew that it had discretion to
dismiss the enhancement. Burciaga “is entitled to [a]decision[]
made by a court exercising informed discretion.” (People v.
Tirado, supra, 12 Cal.5th at p. 694.) Because the trial court was
not aware that it had discretion to dismiss the section 12022.53,
subdivision (d) enhancement in count 1, we vacate the sentence
and remand to the trial court for resentencing.
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DISPOSITION
We vacate the sentence and remand the matter to the trial
court for a full resentencing at which the court may determine
whether to exercise its discretion to strike the section 12022.53,
subdivision (d) enhancement in count 1. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED.
MOOR, Acting P. J.
WE CONCUR:
KIM, J.
DAVIS, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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