People v. Ballard CA1/3

Filed 6/1/22 P. v. Ballard CA1/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A155287
v. (City & County of San Francisco
TRUMILLION BALLARD, Super. Ct. Nos. 12018288,
221133-02)
Defendant and Appellant.
OPINION ON TRANSFER1
A jury found defendant Trumillion Ballard guilty of, among other
things, first degree murder (§ 187, subd. (a)), and it found true a firearm
enhancement that Ballard “personally and intentionally discharge[d] a
firearm and proximately cause[d] great bodily injury.” (§ 12022.53, subd. (d);
People v. Ballard (Feb. 22, 2021, A155287) [nonpub. opn.], review granted
May 12, 2021, and cause remanded Apr. 27, 2022, S267308 (Ballard).) In
August 2018, the trial court sentenced Ballard to 50 years to life in prison —
25 years to life for the first degree murder conviction and a consecutive 25
We resolve this case by memorandum opinion pursuant to California
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Standards of Judicial Administration, section 8.1, reciting only those facts
necessary to resolve the issue raised. Undesignated statutory references are
to the Penal Code.
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years to life for the firearm enhancement. (Ballard, A155287.) Without
stating its reasons, the court rejected Ballard’s request that it exercise its
discretion under section 12022.53, subdivision (h) to strike the firearm
enhancement. (Ballard, A155287.)
Ballard appealed, arguing remand was necessary for the trial court to
consider whether to exercise its discretion to strike the section 12022.53,
subdivision (d) firearm enhancement carrying a term of 25 years to life, and
to impose a lesser, 10-year or 20-year enhancement under subdivisions (b) or
(c). (Ballard, supra, A155287, rev.gr.) We rejected this argument in our
prior opinion, concluding the court lacked the discretionary authority to
strike a firearm enhancement and impose a lesser enhancement that was not
found true. (Ibid.) The California Supreme Court granted review, then
transferred the matter to this court with directions to vacate our decision
and reconsider the cause in light of its decision in People v. Tirado (2022)
12 Cal.5th 688 (Tirado). Based on Tirado, we now agree remand for
resentencing is necessary.
There are three firearm enhancements under section 12022.53 — a 10-
year enhancement for personal use of a firearm (id., subd. (b)); a 20-year
enhancement for the personal and intentional discharge of a firearm (id.,
subd. (c)); and a 25-years-to-life enhancement for personal and intentional
discharge of a firearm causing great bodily injury or death to a person other
than an accomplice (id., subd. (d)). At sentencing, the trial court may, in the
interest of justice, strike or dismiss an enhancement it was otherwise
required to impose. (Id., subd. (h).) The court may impose any enhancement
if “the existence of any fact required under subdivision (b), (c), or (d)” is
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“alleged in the accusatory pleading and either admitted by the defendant in
open court or found to be true by the trier of fact.” (Id., subd. (j).)
In Tirado, the court determined a trial court striking or dismissing
a section 12022.53, subdivision (d) enhancement has the discretion “under
section 12022.53 [subdivision (j) to] impose an enhancement under
[subdivisions (b) or (c)]” even if the lesser enhancements were not specifically
charged or found true by a jury. (Tirado, supra, 12 Cal.5th at pp. 696, 700.)
The court reasoned that by finding the greater subdivision (d) enhancement
true, the jury necessarily found true the facts supporting the lesser
enhancements under subdivisions (b) and (c). (Tirado, at p. 700 [allegation
that defendant “ ‘did personally and intentionally discharge a firearm which
proximately caused great bodily injury or death to another person,’ ” referred
to facts necessary to prove both the “use requirement” for a subdivision
(b) enhancement and the “discharge element” for a subdivision (c)
enhancement].)
Remand is necessary for the trial court to determine whether to strike
the section 12022.53, subdivision (d) enhancement and impose a lesser
enhancement. Ballard is entitled to sentencing decisions made in the
exercise of the court’s informed discretion. (People v. Billingsley (2018)
22 Cal.App.5th 1076, 1081.) But the court could not exercise this informed
discretion since it was unaware of the scope of its discretionary powers.
(Ibid.) At the time of Ballard’s sentencing, “no published case had held an
uncharged lesser firearm enhancement could be imposed in lieu of an
enhancement under section 12022.53, subdivision (d) in connection with
striking the greater enhancement,” and the record does not indicate “the
court considered the issue now raised” or anticipated the Tirado decision.
(People v. Morrison (2019) 34 Cal.App.5th 217, 224 [remanding for
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resentencing]; Ballard, supra, A155287, rev.gr.) Hence, the record does not
demonstrate the court understood the scope of its discretion when denying
Ballard’s request to strike the section 12022.53, subdivision (d) enhancement.
(Morrison, at p. 224.)
Contrary to the Attorney General’s assertions, Ballard did not forfeit
his claim regarding the trial court’s discretion to impose a lesser
enhancement by failing to raise it below. Parties may be excused for failing
to raise an issue where an objection is “ ‘wholly unsupported by substantive
law then in existence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 92.) We also
reject the Attorney General’s assertion the trial court was presumed to know
and apply the correct statutory and case law. That presumption does not
apply here since “the law in question was unclear or uncertain when the
lower court acted.” (People v. Jeffers (1987) 43 Cal.3d 984, 1000.)
DISPOSITION
The case is remanded for the trial court to consider whether to strike
the enhancement under section 12022.53, subdivision (d), and impose a lesser
enhancement. The judgment is otherwise affirmed.
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A155287
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