People v. Wilson CA2/1

Filed 1/30/23 P. v. Wilson CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B315417
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA151540)
v.
MARCUS WILSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Sean D. Coen, Judge. Affirmed.
Barbara A. Smith, 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, Scott A. Taryle and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant Marcus Wilson was convicted of one count of
first degree murder and one count of possession of a firearm by a
felon. The jury also found that in committing the murder, Wilson
personally and intentionally discharged a firearm thereby
causing the victim’s death within the meaning of Penal Code 1
section 12022.53, subdivision (d). Additionally, the jury found
true firearm enhancement allegations under section 12022.53,
subdivisions (b) and (c). The trial court sentenced Wilson to an
aggregate prison term of 80 years to life, which includes a
sentence of 25 years to life imposed pursuant to section 12022.53,
subdivision (d). The court imposed, but stayed, a 10-year
sentence mandated by section 12022.53, subdivision (b) and a
20-year sentence provided under subdivision (c) of that statute.
On appeal, Wilson claims the People failed to present
sufficient evidence demonstrating that he was the individual who
shot the victim. Wilson further claims the trial court erred in
failing to consider whether to reduce the 25-year-to-life firearm
enhancement to a lesser sentence provided under
section 12022.53, subdivision (b) or (c), or under section 12022.5,
subdivision (a).
Wilson’s sufficiency of the evidence challenge fails because
he asks us to reweigh the evidence; weighing evidence is a matter
exclusively within the province of the factfinder. In particular,
Wilson assails the credibility of a witness who testified that she
saw a gun handle sticking out of Wilson’s pants on the date of the
murder, she overheard Wilson tell the victim that the victim
owed Wilson money, she transported Wilson and the victim to the
location at which the murder later occurred, and Wilson
1 Undesignated statutory citations are to the Penal Code.
2
confessed to the murder. Because Wilson fails to establish that it
was physically impossible for this witness to perceive these
events or that this testimony is false on its face, Wilson’s
attempts to discredit her are not cognizable on appeal.
Furthermore, other trial evidence corroborates aspects of this
witness’s testimony.
Wilson has not demonstrated the trial court failed to
consider reducing the 25-year-to-life firearm enhancement under
section 12022.53, subdivision (d) to a lesser sentence under
subdivision (b) or (c) of that statute. On the date sentence was
pronounced, case law established that the trial court had
discretion to substitute these lesser sentence enhancements for
the greater one so long as all the enhancement allegations were
charged and found true by the jury, as was the case here. We
presume that the trial court was aware of this discretion and
considered whether to exercise it. Wilson has not overcome that
presumption.
Lastly, we acknowledge there is a split of authority among
Courts of Appeal regarding whether a trial court may impose an
uncharged 3-, 4-, or 10-year enhancement under section 12022.5,
subdivision (a) in lieu of a greater charged enhancement in
section 12022.53. Regardless of whether the trial court had such
authority, remanding to allow the court to consider whether to
exercise that discretion would be futile, given that the court
believed the nature and seriousness of the murder warranted the
imposition of the 25-year-to-life enhancement.
Finding no reversible error, we affirm the judgment.
3
FACTUAL AND PROCEDURAL BACKGROUND2
We summarize only those facts pertinent to our disposition
of this appeal.
1. The information and Wilson’s not guilty plea
On November 30, 2020, the People filed an information
charging Wilson with one count of murder, in violation of
section 187, subdivision (a); and one count of possession of a
firearm by a felon, in violation of section 29800,
subdivision (a)(1). In connection with the murder count, the
People alleged firearm enhancements pursuant to
section 12022.53, subdivisions (b), (c), and (d).
2 Portions of our factual and procedural background and
Discussion, part A, post, are derived from admissions made in the
parties’ appellate briefing and assertions the Attorney General
makes in the respondent’s brief to which Wilson does not
respond in his reply. (See Williams v. Superior Court (1964)
226 Cal.App.2d 666, 668, 674 [criminal case in which the Court of
Appeal stated: “ ‘An express concession or assertion in a brief is
frequently treated as an admission of a legal or factual point,
controlling in the disposition of the case.’ ”]; Artal v. Allen (2003)
111 Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs and argument . . . are
reliable indications of a party’s position on the facts as well as the
law, and a reviewing court may make use of statements therein
as admissions against the party.’ ”]; Reygoza v. Superior Court
(1991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal case in which
the Court of Appeal assumed that an assertion made by
respondent was correct because the “defendant did not dispute
respondent’s claim in his reply”]; Rudick v. State Bd. of
Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding that the
appellants made an implicit concession by “failing to respond in
their reply brief to the [respondent’s] argument on th[at] point”].)
4
On December 1, 2020, Wilson pleaded not guilty to both
charged offenses.
2. Brief overview of the People’s case3
At trial, the People called A.M. to the stand.4 In
January 2020, A.M. met Wilson through a friend. On
January 29, 2020, A.M. drove Wilson to meet one of his friends,
Stephen Meller. In the course of transporting Wilson, A.M.
noticed that Wilson had a gun handle sticking out of his pants.
A.M. drove Wilson and Meller to several places that day.
While she acted as a chauffeur for the two men, she overheard
Wilson tell Meller that Meller owed Wilson money. That evening,
at Wilson’s request, A.M. transported Wilson and Meller to a
location near a camper that was parked on 115th Street. A.M.
parked and got out of her vehicle for a brief period. After she
returned to her vehicle, she noticed that Wilson and Meller were
no longer inside, and she heard three gunshots.
After A.M. heard the gunshots, she tried telephoning
Wilson. Wilson later reappeared and told A.M. that they were
leaving without Meller. A.M. and Wilson left the area in A.M.’s
vehicle.
The People also called Oscar M. as a witness.5 Martinez’s
residence was across the street from the shooting. At around
8:40 p.m. on January 29, 2020, Martinez, who at that time was
3 Wilson did not call any witnesses at trial. We describe
the trial evidence in greater detail in Discussion, part A, post.
4The remainder of this paragraph and the following two
paragraphs summarize aspects of A.M.’s testimony.
5The remainder of this paragraph and the following
paragraph summarize portions of Martinez’s testimony.
5
outside in his driveway, heard three gunshots. Martinez saw a
man run to a vehicle and enter the passenger side; the vehicle
thereafter drove off.
Martinez noticed that someone was lying on the ground.
Martinez approached the person, and asked if the individual was
“okay”; Martinez received no response. Martinez contacted
emergency services. The parties do not dispute that the person
lying on the ground was Meller, or that after Meller was taken to
the hospital, he died from gunshot wounds.
A.M. testified that at some point after the shooting, Wilson
telephoned her. A.M. testified that during this call, Wilson told
her that he “ ‘got into it’ with [Meller]” and that “ ‘[Wilson] had to
shoot that fool.’ ”6 A.M. testified that she asked Wilson why he
shot Meller, but Wilson refused to discuss the matter further.
3. The jury’s verdict, the trial court’s sentence, and
Wilson’s notice of appeal
The jury found Wilson guilty of first degree murder and
possession of a firearm by a felon. The jury also found each of the
firearm enhancements alleged under section 12022.53,
subdivisions (b) through (d) to be true.
On September 28, 2021, the trial court sentenced Wilson to
an aggregate prison term of 80 years to life. The sentence
consists of a prison term of 25 years to life for the murder
conviction, which the trial court doubled to 50 years to life
pursuant to section 1170.12, subdivisions (a) through (d) and
section 667, subdivisions (b) through (i), along with consecutive
terms of imprisonment of 25 years to life pursuant to
6 Wilson does not dispute A.M. testified that Wilson made
these statements to her during the call.
6
section 12022.53, subdivision (d) and 5 years pursuant to
section 667, subdivision (a)(1).7
The court also imposed, but stayed, a 10-year prison
sentence pursuant to section 12022.53, subdivision (b) and a
20-year prison sentence pursuant to subdivision (c) of that
statute. Additionally, the court imposed a 6-year prison sentence
for the conviction for possession of a firearm by a felon, said
sentence to be served concurrently with Wilson’s 80-year
aggregate prison sentence for the murder conviction.8
7 Although the minute order for the sentencing hearing
indicates the trial court “ordered [Wilson] to serve 25 years in
state prison pursuant to . . . section 12022.5(d),” the reporter’s
transcript shows the court instead imposed a consecutive term of
“25 years to life in state prison” “[p]ursuant
to . . . section 12022.53[,] subdivision (d) . . . .” Because section
12022.53, subdivision (d) does authorize a 25-year-to-life prison
term (see § 12022.53, subd. (d)) and section 12022.5 does not (see
§ 12022.5, subds. (a)–(f) [authorizing enhancements of 3, 4, or 10
years, or 5, 6, or 10 years]), we conclude the minute order’s
reference to section 12022.5 was a typographical error. (See
People v. Smith (1983) 33 Cal.3d 596, 599 [“ ‘[W]hen . . . the
record is in conflict it will be harmonized if possible; but where
this is not possible that part of the record will prevail, which,
because of its origin and nature or otherwise, is entitled to
greater credence[.]’ ”].) We further note the abstract of judgment
identifies section 12022.53, subdivision (d) as the provision
authorizing the consecutive sentence of 25 years to life in prison.
8 In the respondent’s brief, the Attorney General
mistakenly claims that Wilson “was sentenced to a total of
81 years to life in prison.” Although it is not entirely clear how
the Attorney General arrived at that figure, it does appear the
Attorney General overlooked the fact that Wilson’s 6-year prison
term for the firearm possession offense runs concurrent with the
7
Wilson timely appealed the judgment.
DISCUSSION
A. Wilson’s Sufficiency of the Evidence Challenge to His
Murder Conviction Fails
“ ‘In addressing a challenge to the sufficiency of the
evidence supporting a conviction, the reviewing court must
examine the whole record in the light most favorable to the
judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v. Ochoa
(2009) 179 Cal.App.4th 650, 656–657.) In conducting this
analysis, the reviewing court must “view[ ] all the evidence in the
light most favorable to the prosecution, and draw[ ] all reasonable
inferences in favor of the jury’s findings.” (See People v. Perez
(2017) 18 Cal.App.5th 598, 607.) Under this deferential standard
of review, “ ‘it is not a proper appellate function to reassess the
credibility of the witnesses.’ [Citation.]” (See People v. Friend
(2009) 47 Cal.4th 1, 41 (Friend).)
“[W]e must begin with the presumption that the evidence of
th[e] elements [of the offense] was sufficient, and the defendant
bears the burden of convincing us otherwise. . . . [¶] . . . [A]n
appellate court is ‘not required to search the record to ascertain
whether it contains evidence that will sustain [the defendant’s]
sentence imposed for the murder conviction. The Attorney
General also erroneously asserts the 5-year prison sentence
imposed under section 667, subdivision (a)(1) was appended to
Wilson’s sentence for the firearm possession count, rather than to
his sentence for murder.
8
contentions.’ [Citation.] . . . [¶] . . . [T]he defendant must set forth
in his opening brief all of the material evidence . . . in the light
most favorable to the People, and then must persuade us that
evidence cannot reasonably support the jury’s verdict.” (See
People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573–1574
(Sanghera).)
Wilson asserts “there was insufficient evidence [he] was the
actual shooter.” Wilson’s principal contention is that “[A.M.]’s
unreliable testimony combined with a grainy, barely visible
surveillance video” that did not “definitively identif[y] a shooter,”
and “a knife found near the victim’s person, [are] sufficient to
introduce doubt on the part of a reasonable trier of fact as to the
narrative the prosecutor presented to sustain conviction.” Wilson
also complains that “[t]he presence of other people at the shooting
was not investigated or pressed during questioning, . . . despite
the importance of this issue to the question of who shot the
victim.” Applying the deferential standard of review governing
claims of insufficiency of the evidence, we reject each of these
arguments for the reasons discussed below.
1. The jury was entitled to credit A.M.’s testimony
Before addressing Wilson’s challenges to A.M.’s credibility,
we observe Wilson concedes A.M. testified that: On
January 29, 2020, she drove Wilson and Meller to a location near
a camper parked on 115th Street; she later heard gunshots; and
Wilson, but not Meller, returned to her vehicle thereafter. Wilson
also acknowledges A.M. testified that after the shooting, Wilson
told her over the telephone that: “[Wilson] ‘got into it’ with
[Meller]” and “ ‘[Wilson] had to shoot that fool.’ ”
Notwithstanding these concessions, Wilson insists that
A.M. was “so thoroughly impeached that no trier of fact” could
9
have found her credible because her “testimony surrounding the
events prior to and during the shooting was vague, inaccurate,
and contradictory.” Specifically, Wilson argues “[A.M.]’s
statement [regarding] where she was when she heard the
gunshots varied from inside the car, in the middle of the road, or
outside the car while smoking marijuana.” Further, Wilson
asserts that A.M. “told detectives several versions of where [she
and Wilson] went after the shooting, including to a Jack in the
Box restaurant, and to a Casino,” and that “neither of these [was]
determined to be true and police found they actually went to
Long Beach.” Wilson also claims that A.M. “told two different
stories” at trial regarding where she and Wilson went after the
shooting, to wit, she first claimed “that they went to a mutual
friend[’s] . . . house in Long Beach, then changed her story to say
they went to Jack in the Box.” In addition, Wilson asserts A.M.
had “indicated that there were one or more other people present
at the shooting, such as [a person ]with whom she walked around
in the street smoking marijuana, but this could not be
corroborated in the video” surveillance introduced at trial.
“ ‘ “ ‘To warrant the rejection [by an appellate court] of the
statements given by a witness who has been believed by the [trier
of fact], there must exist either a physical impossibility that they
are true, or their falsity must be apparent without resorting to
inferences or deductions.’ ” ’ [Citation.]” (See Friend, supra,47 Cal.4th at p. 41, first bracketed insertion added.) Under this
standard, “impeachment arguments” that amount to nothing
more than “simple conflicts in the evidence” do not warrant
reversal of the judgment (e.g., the trial testimony “differed in
some details from [the witness’s] previous statements”). (See id.at pp. 40–41.)
10
In attempting to discredit A.M., Wilson identifies
discrepancies that tend to undermine her trustworthiness but fall
short of satisfying the insufficiency-of-the-evidence standard.
Wilson’s argument that A.M. made several different statements
vis-à-vis her precise location at the time she heard the gunshots
(i.e., in her car, in the middle of the road, or outside the car while
smoking marijuana), does not demonstrate that it was physically
impossible for her to hear the gunshots. For instance, Wilson
does not claim that any of these locations was so far from the
crime scene that no reasonable factfinder could infer she heard
the gunshots. Nor does Wilson’s argument establish, “ ‘ “ ‘without
resort[ ] to inferences or deductions’ ” ’ ” (see Friend, supra, 47
Cal.4th at p. 41), the falsity of the other inculpatory aspects of
her testimony (e.g., A.M. saw a gun handle sticking out of
Wilson’s pants that day, A.M. overheard Wilson tell Meller that
he owed Wilson money, and Wilson confessed to A.M. that he
shot Meller).
Likewise, Wilson’s claim that A.M. provided several
inconsistent accounts about where she and Wilson went after the
shooting does not establish that other portions of her testimony
were physically impossible or false on their face. The same is
true with respect to Wilson’s assertion that surveillance footage
undercuts A.M.’s claim that other individuals were “present at
the shooting.”
Thus, the jury was entitled to credit the portions of A.M.’s
testimony indicating that Wilson shot Meller.
2. Wilson’s complaints regarding the surveillance video
footage do not warrant reversal
Although Wilson admits that People’s exhibit 5 is
“surveillance footage from Oscar M.’s home security camera,
11
which captured the shooting from across the street,” Wilson
asserts the video does not reveal the identity of the shooter or
“the details of the shooting.” In particular, Wilson contends this
video “was made from a low quality home security camera at
night, some distance across a poorly lit street, with the area of
the shooting partially obscured by trees and a large tractor-
trailer.”
The Attorney General does not claim that the footage in
People’s exhibit 5 was clear enough to allow the jury to identify
the shooter. Furthermore, the record before us does not contain
any video evidence.9 In any event, assuming arguendo this
exhibit does not disclose the shooter’s identity, other evidence
discussed in this opinion links Wilson to the shooting.10 For
9 If Wilson wanted us to consider any of this surveillance
footage, then he should have filed a notice of designation with the
trial court to ensure that these exhibits were transmitted to us.
(See Cal. Rules of Court, rule 8.320(e) [“Exhibits admitted in
evidence, refused, or lodged are deemed part of the record, but
may be transmitted to the reviewing court only as provided in
rule 8.224.”]; Cal. Rules of Court, rule 8.224(a)–(b) [specifying the
procedure by which “a party wanting the reviewing court to
consider any . . . exhibits” may file a notice of designation,
thereby obligating the trial court clerk or a party in possession of
the exhibits to “send them to the reviewing court”].) We have no
record of him doing so.
10 Wilson argues for the first time in his reply brief that
“[i]t is unclear that the video [in People’s exhibit 5] even
portrayed a shooting . . . .” Wilson has forfeited this contention
by failing timely to raise it. (People v. Taylor (2004)
119 Cal.App.4th 628, 642–643 [concluding that a defendant
had forfeited a contention by raising it for the first time in a
reply brief].)
12
instance, as we explain in Discussion, part A.4, post, the People
introduced evidence showing that Wilson’s cellular telephone was
in the vicinity of the crime scene at around the time the shooting
occurred.
3. Wilson’s arguments concerning the presence of a knife
and other persons at the crime scene do not
undermine the judgment
Wilson contends that “a knife [was] found near the victim’s
person,” “but law enforcement failed to collect it as evidence or
document it in a police report.”11 Wilson does not claim the
presence of the knife at the scene would negate murder liability
for shooting Meller (e.g., via self-defense). Rather, he contends “a
reasonable trier of fact could not have avoided doubt that
[Wilson] is the shooter . . . .” (Italics added.) Furthermore, not
only does Wilson acknowledge that a medical examiner testified
Meller was killed by gunshots to the head and chest, but he also
does not dispute the examiner’s conclusion as to the cause of
death. Accordingly, Wilson fails to demonstrate the relevance of
the knife to his challenge to the sufficiency of the evidence
11 In his opening brief, Wilson claims that “a knife was
found on the person of the victim, but law enforcement failed to
collect it as evidence or document it in a police report.” (Italics
added.) In the respondent’s brief, the Attorney General correctly
points out that the excerpts from Officer Augustin Hernandez’s
testimony that Wilson cites do not indicate the knife was on
Meller’s person, but instead show the officer saw a knife near
Meller’s clothing after paramedics had removed him from the
crime scene. Wilson ostensibly retreats from that position in his
reply, asserting instead there was “a knife found near the victim’s
person . . . .”
13
supporting his murder conviction. (See Sanghera, supra, 139
Cal.App.4th at p. 1573 [holding that a defendant “bears the
burden of convincing us” that “ ‘the evidence is insufficient’ ” to
support the verdict].)
Wilson further argues that even though A.M. “indicated
that there were one or more other people present at the shooting,
[including a person with whom A.M.] walked around in the street
smoking marijuana, . . . [t]he presence of other people at the
shooting was not investigated or pressed during questioning, nor
were [A.M.’s smoking companion] or any others called as
witnesses, despite the importance of this issue to the question of
who shot the victim.”
This argument is confusing. Wilson seems to believe that
“one or more other people” were not “present at the shooting”
because he claims their presence “could not be corroborated in the
video” presented at trial. Yet, he faults the People for failing to
investigate and present further evidence on that point.
In any event, the sheer possibility that other individuals
were present when the shooting occurred falls short of
demonstrating that no reasonable jury could credit the People’s
evidence tying Wilson to the shooting (e.g., A.M.’s testimony).
(See People v. Misa (2006) 140 Cal.App.4th 837, 842 [“In
considering the sufficiency of the evidence, we cannot reweigh the
evidence, as the credibility of witnesses and the weight to be
accorded to the evidence are matters exclusively within the
province of the trier of fact,” italics added].)
4. Other evidence placed Wilson at the crime scene
We observe that other evidence supports the jury’s implied
finding that Wilson was present at the crime scene when the
shooting occurred. Wilson admits that a homicide investigator
14
assigned to this case, Officer Issac Fernandez, testified that a
cellular telephone “found at the scene of the crime . . . . was
registered to” Wilson. Wilson further admits that an FBI special
agent testified that telephone records show two cellular
telephones “were in the vicinity of the crime scene around the
time the crime occurred.” Officer Fernandez testified that the
number for one of those two telephones was registered to Wilson.
A.M. testified that the other number corresponded to a telephone
that belonged to her daughter, and that A.M. was using that
telephone “around January 29th, 2020.”
In sum, we conclude for the reasons provided above that a
reasonable jury could have relied on A.M.’s testimony and the
People’s other trial evidence to find that Wilson shot Meller.
Wilson thus fails to demonstrate there was insufficient evidence
to support his murder conviction.
B. Wilson Fails to Demonstrate the Trial Court Erred In
Declining To Reduce His Firearm Enhancement to a
Lesser Enhancement Under Section 12022.53,
Subdivision (b) or (c)
Section 12022.53, subdivision (d) provides that any “person
who, in the commission of a [murder], . . . personally and
intentionally discharges a firearm and proximately causes . . .
death . . . shall be punished by an additional and consecutive
term of imprisonment in the state prison for 25 years to life.”
(See § 12022.53, subd. (d); id., subd. (a)(1) [including murder in
the list of felonies subject to the enhancements imposed by
§ 12022.53].) Similarly, subdivision (b) imposes an additional
and consecutive term of imprisonment of 10 years for any person
who “personally uses a firearm” in the commission of a murder
(see id., subd. (b)), and subdivision (c) imposes an additional and
15
consecutive term of imprisonment of 20 years for any person who
“personally and intentionally discharges a firearm” in the course
of committing that offense (see id., subd. (c)).
Section 12022.53, subdivision (h) confers upon trial courts
the discretion to spare certain criminal defendants from
sentencing enhancements provided in that section. That
subdivision provides in pertinent part: “The court may, in the
interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section.” (§ 12022.53, subd. (h).) In turn,
section 1385 provides that a trial court “may, . . . in furtherance
of justice, order an action to be dismissed.” (See § 1385,
subd. (a).) The Legislature has recognized that in certain cases,
section 1385 authorizes the trial court to “strike or dismiss an
enhancement.” (See § 1385, subd. (b)(1).)
Here, the People averred firearm enhancement allegations
under section 12022.53, subdivisions (b), (c), and (d) in connection
with the murder charge. The jury found each of these firearm
enhancement allegations true. Further, in the course of imposing
the 25-year-to-life enhancement under section 12022.53,
subdivision (d), the trial court remarked: “I’m aware of my
discretion pursuant to Penal Code section 12022.53
subdivision (h). I do not find it to be in the interest of justice to
strike the gun enhancement in this matter based upon the
seriousness of the crime and the nature of the crime.” The court
thereafter imposed, but stayed, the 10-year and 20-year prison
terms authorized by section 12022.53, subdivisions (b) and (c),
respectively.
Wilson maintains the court “failed to exercise the entire
scope of its discretion [under section 12022.53,
16
subdivision (h)], . . . as it only considered striking the
enhancements, but not dismissing [them] or reducing” the 25-
year-to-life enhancement mandated by section 12022.53,
subdivision (d) to the 10-year or 20-year enhancements provided
in subdivisions (b) and (c), respectively. (Italics added.) Put
differently, Wilson argues the court erred in failing to consider
reducing his sentence for the firearm enhancement; he does not
claim the law required the court to impose one of the lesser
enhancements in lieu of the enhancement provided in
subdivision (d).12 Relatedly, Wilson raises an ineffective
assistance of trial counsel claim, arguing that trial “[c]ounsel . . .
did not object to the court’s failure to exercise the full scope of its
sentencing discretion concerning the firearm enhancements.”
Each claim of error fails for the reasons discussed below.
By the time Wilson was sentenced on September 28, 2021,
case law recognized that if the People had averred, and the jury
had found true, firearm enhancement allegations under
12 Although Wilson suggests in his briefing the trial court
also failed to consider whether to dismiss (as opposed to strike)
the 25-year-to-life enhancement, he does not clarify in his
briefing whether he believes there is any substantive difference
between dismissing the firearm enhancement and striking it.
(See also People v. Tirado (2022) 12 Cal.5th 688, 692, 696
(Tirado) [intimating that when a trial court exercises its
authority under § 1385 and § 12022.53, subd. (h) to strike a
firearm enhancement, it is “dismiss[ing a] part[ ] of an action”].)
Wilson has waived this argument by failing to adequately develop
it. (See People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley)
[“ ‘[E]very brief should contain a legal argument with citation of
authorities on the points made. If none is furnished on a
particular point, the court may treat it as waived, and pass it
without consideration.’ ” ”].)
17
section 12022.53, subdivisions (b), (c), and (d), then a court would
have discretion to strike the 25-year-to-life enhancement
provided under subdivision (d) and impose the 10-year
enhancement from subdivision (b) or the 20-year enhancement
from subdivision (c).13 Moreover, “ ‘[s]cores of appellate
decisions, relying on [Evidence Code section 664], have held that
“in the absence of any contrary evidence, we are entitled to
presume that the trial court . . . properly followed established
law.” ’ [Citations.]” (See People v. Abdelsalam (2022)
73 Cal.App.5th 654, 662–663; see also Evid. Code, § 664 [“It is
presumed that official duty has been regularly performed.”].)
Wilson does not direct us to any authority that obligated the trial
court, upon imposing sentence, to state expressly that it had
contemplated reducing the 25-year-to-life enhancement to a
lesser one. Accordingly, we cannot infer from the trial court’s
silence on this matter that it abdicated its responsibility to
consider that option. (Cf. Abdelsalam, at pp. 662–663 [presuming
that the trial court properly employed the preponderance of the
evidence standard in assessing the legality of a guilty plea in part
because, although the court did not identify expressly the burden
of proof it employed, the defendant failed to cite any authority
that obligated the court to do so].)
13 (See, e.g., People v. Wang (2020) 46 Cal.App.5th 1055,
1089–1091 [rejecting the defendant’s argument that the matter
needed to be remanded to allow the trial court to decide whether
to strike a firearm enhancement under § 12022.53, subd. (d) and
impose a lesser one under subd. (b) or (c), given that all three
enhancements were charged and found true by the jury, and the
trial court was presumptively aware that “striking the
enhancement under section 12022.53, subdivision (d) ‘would
leave intact the remaining findings’ ”].)
18
Wilson’s claim of ineffective assistance of counsel “ ‘has two
components: A [defendant] must show that counsel’s
performance was deficient, and that the deficiency prejudiced the
defense.’ [Citations.]” (In re Gay (2020) 8 Cal.5th 1059, 1073.)
“ ‘[T]o establish deficient performance, a [defendant] must
demonstrate that counsel’s representation “fell below an objective
standard of reasonableness,” ’ as measured by ‘ “prevailing
professional norms.” ’ [Citation.] When applying this standard,
we ask whether any reasonably competent counsel would have
done as counsel did.” (Ibid.)
We have already concluded earlier in this part that Wilson
has not shown the trial court failed to consider whether to reduce
the 25-year-to-life enhancement to a lesser one under
section 12022.53, subdivision (b) or (c). It follows that the
ineffective assistance claim fails, given that trial counsel could
not have rendered deficient performance by not objecting to a
nonexistent sentencing error. (Cf. People v. Flowers (2022)
81 Cal.App.5th 680, 683–684, fn. 3 [rejecting a defendant’s claim
that trial counsel rendered ineffective assistance by failing to
object to the trial court’s imposition of the upper term because
the lower court’s sentencing decision was not erroneous], review
granted Oct. 12, 2022, S276237.)
In sum, we reject Wilson’s claim that the trial court failed
to consider whether to reduce his firearm enhancement to
another enhancement under section 12022.53, subdivision (b) or
(c), along with his related claim of ineffective assistance of trial
counsel.
C. Wilson Is Not Entitled to an Order Remanding the
Matter to the Trial Court To Consider Whether To
19
Reduce the Firearm Enhancement to a Lesser
Enhancement Under Section 12022.5, Subdivision (a)
Several months after the September 28, 2021 sentencing
hearing, the Supreme Court issued an opinion that resolved a
“split” among the Courts of Appeal by holding that a trial “court
can strike [a] section 12022.53(d) enhancement and, in its place,
impose a lesser enhancement under section 12022.53(b) or
section 12022.53(c), even if the lesser enhancements were not
specifically charged in the information or found true by the jury.”
(See Tirado, supra, 12 Cal.5th at pp. 688, 692, 696 [issued on
Jan. 20, 2022].) Relying on the Tirado decision, several Courts of
Appeal have held that a trial court has discretion to impose an
uncharged lesser included enhancement under section 12022.5,
subdivision (a) after striking a greater enhancement under
section 12022.53.14 (See People v. Fuller (2022) 83 Cal.App.5th
394, 397, 403 [Fourth Dist., Div. Two], review granted
Nov. 22, 2022, S276762; People v. Johnson (2022) 83 Cal.App.5th
1074, 1080, 1088 [Third Dist.], review granted Dec. 14, 2022,
S277196.) At least one Court of Appeal arrived at the opposite
conclusion in a published decision. (See People v. Lewis (2022)
86 Cal.App.5th 34, 36, 39, 41 [Fifth Dist.].) On
September 28, 2022, the Supreme Court granted review of an
unpublished Court of Appeal decision that likewise concluded
that a trial court lacks such authority. (See People v. McDavid
14 As relevant here, section 12022.5, subdivision (a)
provides: “[A]ny person who personally uses a firearm in the
commission of a felony or attempted felony shall be punished by
an additional and consecutive term of imprisonment in the state
prison for 3, 4, or 10 years, unless use of a firearm is an element
of that offense.” (See § 12022.5, subd. (a).)
20
(July 14, 2022, D078919) [nonpub. opn.], review granted
Sept. 28, 2022, S275940.)
Wilson argues, “[T]he [trial] court did not exercise the full
scope of its discretion with regard to [Wilson’s] firearm
enhancements, which would have allowed [the court] to strike,
dismiss, or reduce the [section] 12022.53 enhancement[ ], and
impose . . . [a] lesser uncharged enhancement[ ] under
section 12022.5,” subdivision (a).15 As we discuss in greater
detail below, we decline to resolve this issue because, even if the
trial court had discretion to impose a section 12022.5,
subdivision (a) enhancement in lieu of the section 12022.53,
subdivision (d) enhancement, Wilson would still lack entitlement
to appellate relief on this claim of error.16
15 The presiding justice granted the parties leave to submit
supplemental briefing on this issue. Moreover, although Wilson
seems to suggest the trial court also should have contemplated
reducing the 25-year-to-life firearm enhancement to a lesser
uncharged enhancement provided under a statute other than
section 12022.5, subdivision (a), he does not identify explicitly
any other statutory provision the court ought to have considered.
Accordingly, Wilson waives this argument. (See Stanley, supra,10 Cal.4th at p. 793.)
16 In advancing this appellate claim, Wilson notes in
passing that the current version of section 1385 provides that as
a general rule, “if ‘[t]he application of an enhancement could
result in a sentence of over 20 years’ in prison, ‘the enhancement
shall be dismissed.’ ” (Quoting § 1385, subd. (c)(2)(C).) Although
Wilson claims this statutory text “is indicative of the
Legislature’s intent to allow nuanced downward adjustments to
an offender’s total sentence by adjusting the enhancements,” he
does not claim this subdivision of section 1385 applies to the
instant case. We note that the Legislature expressly stated
21
“ ‘Defendants are entitled to “sentencing decisions made in
the exercise of the ‘informed discretion’ of the sentencing court,”
and a court that is unaware of its discretionary authority cannot
exercise its informed discretion.’ [Citation.]” (People v.
McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).)
Accordingly, as a general rule, “ ‘[w]hen the record shows that the
trial court proceeded with sentencing on the . . . assumption it
lacked discretion, remand is necessary so that the trial court may
have the opportunity to exercise its sentencing discretion at a
new sentencing hearing. [Citations.] . . . .’ [Citation.]” (See ibid.)
Nevertheless, if “the record shows that the trial court clearly
indicated when it originally sentenced the defendant that it
would not in any event have stricken a firearm enhancement[,]”
“ ‘ “then remand would be an idle act and is not required.” ’
[Citation.]” (See ibid.)
In this case, we already concluded the trial court had
decided not to substitute a firearm enhancement under
section 12022.53, subdivision (b) or (c) for the enhancement
imposed by subdivision (d) thereof. (See Discussion, part B,
ante.) In declining to strike the subdivision (d) enhancement and
impose a reduced incarceration period provided in
section 12022.53, subdivision (b) or (c), the trial court remarked:
“I do not find it to be in the interest of justice to strike the gun
enhancement [under section 12022.53, subdivision (d)] in this
matter based upon the seriousness of the crime and the nature of
the crime.” Thus, the trial court believed the nature and
seriousness of the murder perpetrated by Wilson counseled
subdivision (c) of section 1385 “appl[ies] to all sentencings
occurring after January 1, 2022.” (See § 1385, subd. (c)(7), italics
added.) Wilson was sentenced on September 28, 2021.
22
against reducing the 25-year-to-life firearm enhancement under
section 12022.53, subdivision (d) to a 10-year or 20-year
enhancement under subdivision (b) or (c) of that statute. (See
§ 12022.53, subds. (b)–(d) [imposing firearm enhancements of
10 years, 20 years, and 25 years to life, respectively].) A fortiori,
the court “clearly indicated” it would not have decreased the
section 12022.53, subdivision (d) enhancement to one under
section 12022.5, subdivision (a) that is lower than those
authorized by subdivisions (b) and (c), to wit, a term of 3, 4, or 10
years. (See McDaniels, supra, 22 Cal.App.5th at p. 425;
§ 12022.5, subd. (a).) Because remanding the matter to the trial
court for resentencing would be “ ‘ “an idle act” ’ ” (McDaniels, at
p. 425), we decline to do so.
23
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
24