People v. Stewart CA4/3

Filed 6/15/22 P. v. Stewart CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060088
v. (Super. Ct. No. 12NF3868)
PAUL ANTHONY STEWART, JR. OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Gregg L. Prickett, Judge. Reversed and remanded with directions.
Martin Kassman, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Respondent.
In 2015, a jury convicted Paul Anthony Stewart of attempted murder (Pen.
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Code, §§ 187, subd. (a), 664, subd. (a)) and found true enhancement allegations that he
personally had discharged a firearm causing great bodily injury (§ 12022.53, subd. (d))
and had committed the offense to benefit a criminal street gang (§ 186.22, subd. (b)).
The trial court sentenced Stewart to a seven-year prison term on the attempted murder
conviction, with a consecutive 10-year sentence on the criminal street gang enhancement
and a consecutive 25-years-to-life sentence on the discharge of firearm enhancement. In
a nonpublished opinion, People v. Stewart (May 16, 2018, G053869), a panel of this
court affirmed the judgment of conviction against Stewart.
Stewart filed the present appeal after the trial court, at a resentencing
hearing, declined to strike or dismiss the discharge of firearm enhancement imposed
under section 12022.53, subdivision (d) (section 12022.53(d)). Stewart argues his trial
counsel was ineffective by not proposing to the trial court that as an alternative it impose
one of the two lesser enhancements under section 12022.53, subdivision (b) (10 years) or
subdivision (c) (20 years). Without deciding whether Stewart’s counsel was ineffective,
we reverse and remand to permit the trial court to consider all sentencing options under
section 12022.53.
FACTS
The facts are taken from People v. Stewart, supra, G053869.
“On March 31, 2012, at approximately 2 p.m., a gunman approached a
vehicle parked outside an apartment complex in an area of La Habra claimed by the
Monos criminal street gang. Juan Yni[g]uez and Raul Martinez, both members of the
Monos gang, occupied the vehicle and had the passenger side window rolled down
approximately two inches. Although reluctant to discuss the shooting with the police, the
victims admitted the gunman called out, ‘Where are you from,’ and then stuck the gun
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Statutory and code references are to the Penal Code.
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‘through like where that little hole is’ in the lowered window. The gunman pulled the
trigger either as Yniguez and Martinez fled out of the car, or after they exited it, and two
bullets struck Yniguez in his shoulder and his leg.
“Forensic investigators recovered Stewart’s thumb and palm prints on the
outside of the front passenger window of the victims’ vehicle. An investigator explained
at trial that because of the palm print’s location ‘all the way up to the top edge of the
window,’ the print ‘had to be deposited while that window was rolled down’; otherwise,
the rubber trim around the door would have prevented a print there with the window up.
Based on the film of dust and dirt that covered the rest of the car, but was absent in the
area of ‘“recent disturbances”’ marked by the prints, the investigator concluded the prints
were fresh. The investigator acknowledged that dating the disturbances was inexact —
the prints could have been left the previous day or as much as a week before, including,
for example ‘in a mall parking lot,’ as Stewart’s attorney suggested.
“Yniguez and Martinez testified at trial, but neither would identify Stewart
as the shooter. Both testified they did not want to be a ‘rat’ and that ‘bad things’
happened to rats, including beatings and murders. Yniguez similarly had refused to
disclose the shooter’s identity to the police. At trial, Yniguez testified he did not see the
person who shot him and did not remember anything about the shooting. Martinez
testified affirmatively on cross-examination that Stewart was not the shooter. Stewart’s
cousin testified Stewart was not in La Habra at the time of the shooting.
“Officer Michael Costanzo of the La Habra Police Department testified as
the prosecution’s gang expert. He opined that Stewart was a member of the All West
Coast criminal street gang (AWC), and he explained that AWC and Monos were rivals.
Costanzo based his opinion Stewart was an active AWC member on multiple factors:
(1) Stewart’s tattoos, including a large ‘AWC’ tattoo across his abdomen, ‘All West
Coast’ tattooed on his left arm, and ‘AWC’ tattooed down his left leg; (2) field contacts
Costanzo personally made with Stewart in 2007 and other AWC members, including one
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in which Stewart claimed within hearing of other members that he was an AWC member;
(3) another field contact Costanzo personally made in 2009 in which Stewart admitted he
belonged to AWC and that his moniker was ‘Sage’; (4) the facts of the charged crime,
where the gunman shot a rival gang member after issuing a typical gang ‘hit up’
challenge (‘Where are you from’); and (5) Costanzo found ample gang indicia on
Stewart’s Facebook page, including photographs uploaded to the site in 2012 a few
months before the shooting.
“The social media photographs depicted: (a) Stewart’s gang tattoos, AWC
hand signs, and AWC graffiti; (b) a memorial photograph of a deceased AWC member;
and (c) a photo of Stewart pretending to be an employee of a fictitious organization called
‘West Coast Postal’ with his badge number displaying ‘345,’ a number commonly used
by AWC to identify the gang. Stewart’s Facebook page also included AWC-related
comments and interactions with other known AWC gang members. Additionally,
Costanzo testified he had been the investigating officer in a November 2008 incident in
which Stewart was present when other AWC members vandalized a home while calling
out ‘AWC.’
“Costanzo further explained that shooting a rival gang member in rival
gang territory right after saying, ‘Where are you from?’ benefits, furthers, and promotes a
street gang’s criminal activity and influence by increasing the gang’s reputation for
violence, elevating the individual’s status in the gang, assisting with recruitment of new
members by elevating the gang’s status, and frightening the gang’s rivals.
“Irving Gutierrez testified briefly about the November 2008 vandalism
incident at his apartment. He explained it arose when one of ‘my closest friends,’ an
AWC member named Matthew Garcia, ‘jumped my little brother, and I had already left
the party, so I didn’t know until after when my brother came home all bruised up.’ A few
days later, Gutierrez spotted Garcia walking by Gutierrez’s apartment, and confronted
Garcia about the beating. Garcia departed and returned later with several friends
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Gutierrez recognized as AWC members, including Stewart, whom Gutierrez knew as
Sage. Gutierrez described the damage from the incident as a ‘broken window,’ caused by
a ‘[b]eer bottle was thrown through it and then a few rocks.’ He testified the ‘subjects’
‘claimed’ AWC during the confrontation and reminded him ‘you live[ in] All West Coast
territory.’ Gutierrez did not say how the confrontation dissipated, but he knew vandalism
charges had been brought against several of those present, but only Garcia was
convicted.” (People v. Stewart, supra, G053869.)
POSTAPPEAL PROCEDURAL HISTORY
As noted, the jury convicted Stewart of attempted murder and found to be
true the discharge of firearm enhancement allegation under section 12022.53(d). In 2016,
when the trial court sentenced Stewart, the court did not have discretion to strike or
dismiss the section 12022.53(d) discharge of firearm enhancement. (§ 12022.53, former
subd. (h).) But the Legislature subsequently passed Senate Bill No. 620 (2017–2018
Reg. Sess.) (Senate Bill No. 620), which, effective January 1, 2018, amended section
12022.53 to grant the trial court such discretion. (Stats. 2017, ch. 682, § 2.) Section
12022.53, subdivision (h) (section 12022.53(h)) now states, “[t]he court may, in the
interest of justice . . . strike or dismiss an enhancement otherwise required to be imposed
by this section.” (See People v. Flores (2020) 9 Cal.5th 371, 431.)
In July 2019, Stewart filed a petition for writ of habeas corpus in the
California Supreme Court. He alleged he had received ineffective assistance of counsel
because his trial counsel had not sought retroactive application of section 12022.53(h).
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In May 2020, the Supreme Court issued an order to show cause and, as a result, a
resentencing hearing was scheduled to give the trial court the opportunity to consider
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The order to show cause stated: “The Secretary of the Department of
Corrections and Rehabilitation is ordered to show cause before the Orange County
Superior Court, when the matter is ordered on calendar, why petitioner is not entitled to
relief pursuant to Senate Bill No. 620.”
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exercising its discretion under section 12022.53(h). The trial court conducted a
resentencing hearing on February 19, 2021.
After hearing argument from counsel, the court, in the interest of justice,
declined to exercise its discretion under section 12022.53(h) to strike or dismiss the
firearm discharge enhancement and stated the reasons for its decision at length on the
record. After acknowledging its discretion granted by Senate Bill No. 620, the trial court
analyzed the legislative history behind the discharge of firearm enhancement under
section 12022.53(d). The trial court next considered each of the general objectives in
sentencing listed in rule 4.410 of the California Rules of Court, circumstances in
aggravation under rule 4.421, circumstances in mitigation under rule 4.423, and factors
affecting imposition and striking of enhancements under rule 4.428(b). In conclusion, the
court stated: “[T]his was a violent criminal episode that resulted in the intentional
shooting of a perceived rival gang member who was simply sitting in the car. [Stewart]
exhibited a callous disregard for the safety of others by shooting into the window of the
car, causing two separate bullets to penetrate the victim’s shoulder and his leg.”
Stewart appealed. His appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738(Anders). After the California Supreme Court filed its opinion in People v. Tirado (2022)
12 Cal.5th 688 (Tirado), Stewart requested leave to file supplemental briefing to raise an
ineffective assistance of counsel claim based on his trial counsel’s failure to apprise the
trial court of its discretion to substitute a lesser firearm use enhancement for the section
12022.53(d) enhancement. We granted the request, and Stewart filed a supplemental
brief. The Attorney General has not filed a brief in response.
DISCUSSION
Section 12022.53 sets forth three separate sentence enhancements based on
a defendant’s personal use of a firearm in the commission of certain felonies. The most
serious, which the jury found applicable in this case, is the 25-years-to-life enhancement
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of section 12022.53(d) for causing great bodily injury or death by discharging a firearm.
Section 12022.53 also contains lesser enhancements of 10 years for personal use of a
firearm (id., subd. (b)) and 20 years for personal and intentional discharge of a firearm
(id., subd. (c)).
At the time of the resentencing hearing in this case, there was a split of
authority on the issue whether the power under section 12022.53(h) to strike or dismiss a
section 12022.53(d) enhancement included the power to reduce that enhancement to one
of the lesser enhancements set forth in subdivision (b) or (c) of that section. In People v.
Morrison (2019) 34 Cal.App.5th 217, a panel of Division Five of the First Appellate
District concluded trial courts have “discretion to impose an enhancement under section
12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement under
section 12022.53, subdivision (d), if such an outcome [is] found to be in the interests of
justice under section 1385.” (Id. at p. 223.) In People v. Tirado (2019) 38 Cal.App.5th
637, reversed with directions, Tirado, supra, 12 Cal.5th 688, a panel of the Fifth
Appellate District concluded section 12022.53(h) does not grant trial courts the discretion
to substitute lesser firearm enhancements. (People v. Tirado, supra, at p. 640; see People
v. Garcia (2020) 46 Cal.App.5th 786, 790-791 [reaching same conclusion]; People v.
Yanez (2020) 44 Cal.App.5th 452, 458 [same].)
In Tirado, the California Supreme Court resolved the split by concluding,
“Morrison correctly described the scope of a trial court’s sentencing discretion under
section 12022.53.” (Tirado, supra, 12 Cal.5th at p. 697.) The Supreme Court held, “the
statutory framework permits a court to strike the section 12022.53(d) enhancement found
true by the jury and to impose a lesser uncharged statutory enhancement instead.” (Id. at
p. 692.) “To summarize: “When an accusatory pleading alleges and the jury finds true
the facts supporting a section 12022.53(d) enhancement, and the court determines that the
section 12022.53(d) enhancement should be struck or dismissed under section
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12022.53(h), the court may, under section 12022.53(j), impose an enhancement under
section 12022.53(b) or (c).” (Id. at p. 700.)
At the resentencing hearing, Stewart’s trial counsel asked the court only to
dismiss or strike the section 12022.53(d) enhancement and did not raise the possibility of
a lesser enhancement. Although claims of error in the trial court’s exercise of sentencing
discretion usually are forfeited if not raised at the sentencing hearing (People v. Trujillo
(2015) 60 Cal.4th 850, 856), we decline to find forfeiture for three reasons.
First, Stewart is entitled to retroactive application of Tirado. The general
rule is judicial decisions are given retroactive effect, and even non-retroactive decisions
govern all cases pending on direct review when the decision was rendered. (People v.
Guerra (1984) 37 Cal.3d 385, 400.) This rule applies to decisions of the California
Supreme Court, such as Tirado, that resolve conflicts between the Courts of Appeal or
establish the meaning of a statutory enactment. (Burris v. Superior Court (2005)
34 Cal.4th 1012, 1023; In re Borlik (2011) 194 Cal.App.4th 30, 40; People v. Walsh
(1996) 49 Cal.App.4th 1096, 1104.) Tirado was decided while this appeal was pending.
When Tirado was decided, the judgment in this case was not final, and it is not yet final,
because the sentence on the firearm discharge enhancement was and remains under
challenge in this appeal.
Second, application of the forfeiture rule in this case would not advance the
rule’s purpose of reducing “‘the number of errors committed in the first instance’” and
“‘the number of costly appeals brought on that basis.’” (People v. Smith (2001)
24 Cal.4th 849, 852.) The rationale is “[s]uch errors are essentially factual, and thus
distinct from ‘“clear and correctable”’ legal errors that appellate courts can redress on
appeal ‘independent of any factual issues presented by the record at sentencing.’”
(People v. Trujillo, supra, 60 Cal.4th at pp. 856-857.)
The policy considerations behind the forfeiture rule are inapposite here
because Stewart’s claim would not have reduced the number of appeals. (People v.
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Smith, supra, 24 Cal.4th at p. 852.) At the time of Stewart’s resentencing hearing, there
was a split of authority on the trial court’s discretion to impose a lesser enhancement
under section 12022.53. Thus, an appeal would have been likely even if defense counsel
had raised the issue and however the trial court might have ruled.
Finally, whether the trial court had discretion to reduce a firearm
enhancement under section 12022.53(d) and impose a lesser enhancement under section
12022.53 is a purely legal issue which we can resolve independently of factual issues
presented at the sentencing hearing. Appellate courts have been unwilling to apply the
forfeiture rule if the defendant’s claim involves clear legal error that is correctable on
appeal and, if not corrected, could result in a defendant spending too much time in
custody. (See People v. Welch (1993) 5 Cal.4th 228, 236.)
Because we decline to find forfeiture, we do not address Stewart’s claim of
ineffective assistance of counsel. We conclude instead the matter must be remanded with
directions to the trial court to conduct a new sentencing hearing at which the court shall
consider whether to exercise its discretion to substitute one of the lesser firearm use
enhancements in place of the firearm discharge enhancement under section 12022.53(d).
“‘Failure to exercise a discretion conferred and compelled by law constitutes a denial of a
fair hearing and a deprivation of fundamental procedural rights, and thus requires
reversal. [Citations.]’ [Citation.] Where, as here, a sentence choice is based on an
erroneous understanding of the law, the matter must be remanded for an informed
determination.” (People v. Leon (2016) 243 Cal.App.4th 1003, 1023.) We express no
opinion as to how the trial court should exercise its sentencing discretion on remand.
DISPOSITION
The order declining to exercise the trial court’s discretion under section
12022.53(h) to strike or dismiss the firearm discharge enhancement is reversed and the
sentence is vacated. The matter is remanded to the trial court with directions to conduct a
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new sentencing hearing. On remand, the trial court shall consider all sentencing options
under section 12022.53.
O’LEARY, P. J.
WE CONCUR:
GOETHALS, J.
SANCHEZ, J.
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