People v. Perry CA5

Filed 6/2/22 P. v. Perry CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079881
Plaintiff and Respondent,
(Super. Ct. No. BF173254A)
v.
DESMOND JEROME PERRY, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
This matter is before us for reconsideration following the California Supreme
Court’s recent decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado). As discussed
below, we shall remand for resentencing in accordance with Tirado.
PROCEDURAL HISTORY
Defendant Desmond Jerome Perry was charged with two counts of willful,
deliberate and premediated murder with a multiple-victims special circumstance
(counts 1 and 2), and one count of shooting at an occupied dwelling (count 3). (Pen.
Code, §§ 187, subd. (a), 189, subd. (a), 190.2, subd. (a)(3), 246.)1 The jury convicted
defendant of two counts of murder, but found the attached premeditation allegations not
true. The jury also convicted defendant of shooting at an occupied dwelling and on all
three counts, found true that defendant personally and intentionally discharged a firearm
causing great bodily injury (GBI) or death. (§ 12022.53, subd. (d).)2 On counts 1 and 2,
the trial court sentenced defendant to two consecutive terms of 15 years to life for second
degree murder plus an additional 25 years to life for the firearm enhancement, for a total
indeterminate term of 80 years to life. On count 3, the trial court sentenced defendant to
the lower term of three years plus an additional term of 25 years to life for the firearm
enhancement, stayed under former section 654.3
1 All further statutory references are to the Penal Code, unless otherwise indicated.
2 Assembly Bill No. 1171 made technical changes to section 12022.53, effective January 1,
2022, as a result of separate substantive changes to the crime of spousal rape. (Legis. Counsel’s
Dig., Assem. Bill No. 1171 (2021–2022 Reg. Sess.) Stats. 2021 ch. 626, § 65, pp. 101–103.)
The changes made do not affect our analysis in this case.
3 At the time of sentencing, section 654, former subdivision (a), provided, in relevant part,
“An act or omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one provision.” (Italics added.)
As amended by Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1)
effective January 1, 2022, section 654, subdivision (a), now provides, in relevant part, “An act or
omission that is punishable in different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or omission be punished under more
than one provision.” (Italics added.) Given defendant’s entitlement to resentencing under
2.
On appeal, defendant advanced several claims related to sentencing. He argued
that trial counsel rendered ineffective assistance of counsel when counsel failed to request
that the trial court exercise its discretion to substitute a lesser uncharged firearm
enhancement under section 12022.53 in lieu of the greater enhancement found true by the
jury. Relatedly, defendant argued that he was entitled to remand so the trial court could
exercise its discretion to substitute a lesser enhancement and that the trial court abused its
discretion when it declined his request to strike the firearm enhancement under former
section 1385.4 Finally, he argued that the trial court abused its discretion in imposing
consecutive sentences on counts 1 and 2.
The People disputed defendant’s entitlement to relief.
In our nonpublished opinion, People v. Perry (Dec. 22, 2021, F079881) 2021
Cal.App. Unpub. Lexis 8075 (Perry I), we found no errors and affirmed the judgment.5
The California Supreme Court granted review in Perry I and transferred the matter back
to us with directions to vacate our opinion and reconsider the cause in light of the
decision in Tirado, supra, 12 Cal.5th 688. We do so now.
Supplemental briefing is complete, and the parties disagree whether defendant is
entitled to remand for resentencing under Tirado. We conclude that he is entitled to
relief, and we remand the matter for resentencing in accordance with Tirado.
Tirado, the parties and the trial court may address defendant’s sentence under section 654 as
amended on remand. (People v. Sek (2022) 74 Cal.App.5th 657, 673–674.)
4 Effective January 1, 2022, section 1385 was amended by Senate Bill No. 81 (2021–2022
Reg. Sess.) Statutes 2021, chapter 721, section 1 (Senate Bill 81). Given the necessity of
resentencing under Tirado, the parties and the trial court may address defendant’s sentence under
section 1385 as amended on remand. (People v. Sek, supra, 74 Cal.App.5th at p. 674.)
5 Defendant argued that if we found his challenges to the trial court’s exercise of its
sentencing discretion forfeited for failure to object, trial counsel rendered ineffective assistance
of counsel. It was unnecessary to reach this claim in Perry I and we do not reach it on
reconsideration under Tirado. (People v. McDaniel (2021) 12 Cal.5th 97, 129.)
3.
FACTUAL SUMMARY
There was no dispute at trial that Michael Wiggins and his 12-year-old niece,
Trinity Wiggins, were shot and killed by defendant on July 22, 2018.6 Wiggins, who was
in a long-term relationship with defendant’s cousin, T., was the intended target, but
defendant claimed he fired in self-defense after Wiggins pointed a gun at him. Trinity
was not a target and defendant was not aware of her presence, but she was struck and
killed by one of the bullets that pierced the exterior wall of the house.
I. Prosecution Evidence
A. Background
At the time of the shooting, Wiggins, T., and their three young children lived with
Wiggins’s brother, D., at D.’s house in California City. D.’s father-in-law and brother-in-
law, V. and V.S., Jr., also lived at the house, and the four children D. shared with his
estranged wife, including Trinity, visited often.
Wiggins and T. had been together for six or seven years, and they moved in with
D. approximately six months before the shooting. T. testified that Wiggins was never
abusive toward their three children, but, during the first half of their relationship, he
physically abused her. During the three years leading up to the crime, although there was
no physical abuse, the couple argued often and T. said Wiggins would threaten her. T.
testified that Wiggins did not follow through on his threats, but, in statements, she said he
had a bad temper, did not back away from conflict, was paranoid and controlling, did not
like her talking to other men, and would not allow her to leave.
In contrast, D. testified he never witnessed any physical abuse between Wiggins
and T. and never saw Wiggins try to control T. However, he worked and was not at
home with them during the day. D. said the couple bickered occasionally, which he
6 Because the victims share a last name, we will refer to Trinity by her first name. No
disrespect is intended.
4.
found “funny” and “hilarious,” his testimony suggesting that the disagreements resolved
quickly and were not serious. D. described Wiggins as calm and nonviolent, and he said
T. did not seem afraid of Wiggins, she left the house with the children whenever she
wanted, and she would not have listened to Wiggins had he tried to control her. Neither
Wiggins nor T. had a vehicle, but D. testified he had seen T. threaten to leave before and,
one time, he saw her pack up and leave with the children via Uber. D. said Wiggins was
not unusually upset when T. left, and she returned home the next day.
T. and defendant met as children and had very sporadic contact over the years,
falling in and out of touch with one another. Approximately one month before the
shooting, T. reconnected again with defendant through Facebook. At the time, defendant
lived in Acton, approximately 45 minutes to one hour away from California City. They
did not see one another in person during this period, but communicated several times a
day through Facebook Messenger. In the past, T. told defendant that Wiggins was “gang-
related,” and, when they reconnected, T. told defendant that she and Wiggins were
having trouble and she wanted to leave. She mentioned going to a shelter, but defendant,
who lived in an apartment with his girlfriend and their young daughter at the time, did not
want her to do so, and he offered to let her and her children stay with him until she could
get on her feet. T. told defendant that Wiggins was beating her up and had threatened to
burn the house down. T. testified she was afraid of Wiggins, but she trusted defendant,
whom she thought was calm enough to handle defendant without trouble arising.
B. The Shooting
On the day of the shooting, T. was messaging with defendant. T. testified she was
feeling unsafe and at 6:09 p.m., she messaged defendant about going to a shelter.
Defendant rejected that idea, and he asked where she was and what was happening. T.
responded she was at home and said, “‘BD is losing his mind,’” referring to Wiggins as
“[b]aby daddy.” Defendant asked her what Wiggins was doing and where she lived. T.
provided the address and responded, “‘Saying he’s going to set the house on fire with me
5.
and the kids in it.’” Defendant told T. he was going to come and get her. When
defendant told T. he was on his way, she messaged, “‘Cuzzo, don’t do nothing to get you
in trouble.’”
At trial, T. explained she sent that warning because she was worried Wiggins, who
was larger, might hurt defendant. However, she also testified that Wiggins was aware
she and defendant were messaging each other and he “was okay with it.” Wiggins had
not taken any steps to carry out his alleged threat to burn the house down, and when
defendant asked T. if Wiggins had touched her, she told him no.
At approximately 7:30 p.m., defendant messaged T. that he was there. She walked
outside, hugged him, and told him she would be back with her stuff. Defendant was
alone and standing at the end of the walkway. T. testified the children were playing
inside and Wiggins was on their bed in the living room. Wiggins did not say anything to
her, and she did not tell him where she was going. She went into a room in the back of
the house and began packing items to go.
T. testified that she heard Wiggins and defendant talking outside, heard defendant
tell Wiggins to go back inside, and then heard multiple gunshots. She said she did not
see Wiggins go outside and did not see defendant with a gun. After hearing the shots, she
was in shock and screamed. She saw Wiggins in the hallway lying down with a gunshot
wound to his chest. He did not say anything to her and, when she looked outside,
defendant was gone and no one else was around.
D. was not home when the shooting occurred, but V. and his son were in their
room. V. did not hear anything preceding the shooting and did not know where the shots
were coming from, so he told his son to exit the house through the window in their room.
V. then opened the door and saw Wiggins staggering down the hall. Wiggins was
bleeding and T. was behind him screaming hysterically. Wiggins slid down the wall and
told V. to call 911, which he did. V. heard T. saying something like “‘Desmond,’” and,
6.
in T.’s testimony, she identified her voice in the background of the 911 call saying, “‘It
was Desmond.’”
The police station was nearby and officers arrived quickly. Trinity was inside the
house on the floor, killed by a bullet that entered her right shoulder and traveled left
through her chest. Wiggins was in the hallway with a single gunshot wound and was still
conscious. He was able to provide his name and told police “‘her cousin’” shot him
before he started fading into unconsciousness.
Wiggins was transported to the hospital, where he died from his injury. He had
methamphetamine; benzoylecgonine, a metabolite of cocaine; and THC, the active
ingredient in marijuana, in his system when he died. However, D. had never seen
Wiggins use drugs, T. did not see him use drugs that day, and police did not find any
drugs or drug paraphernalia in the house.
At the scene, T. told Officer Hulse defendant was texting her and Hulse took her
phone. Defendant had asked if Wiggins was okay and if the police were there. Hulse
responded from T.’s phone, “‘I’m scared. What should I do?’” Defendant responded
that “‘one of his friends got into it, right,’” and Hulse texted back, “‘I don’t know what
you are talking about. Where are you?’” Defendant responded, “‘the 15. I’m hide in
Vegas.’” After more texting back and forth, defendant texted, “‘It was two. He shot
from the car. He is going to San Fran. I told him to shoot if he pulled a gun.’”
T. gave multiple statements to law enforcement. Officer Hulse testified that T.
said she saw defendant pull his gun first and she saw Wiggins point a pellet gun at
defendant. Officer Hansen testified that T. stated she heard Wiggins tell the children to
go inside, and she heard Wiggins and defendant begin arguing. When she looked
outside, she saw defendant grab a large black weapon from the trunk of his car, heard
four or five shots, saw Wiggins struggling inside, and saw defendant put his gun back in
the car and drive off. She also told Hansen there was possibly a black male driving the
car and defendant was possibly the passenger. At trial, T. denied making those
7.
statements and maintained she did not see either man with a gun and did not see
defendant leave.
C. Other Evidence
Officers located five shell casings at the scene and four bullet holes in the front of
the house in a pattern that suggested the shooter was moving while firing. Three of the
bullets went through the exterior wall into the home. Although the murder weapon was
never located, there was no dispute at trial that defendant used his legally purchased and
owned Smith & Wesson M&P Sport, an AR-15-type semiautomatic rifle. Officers also
located a pellet gun just inside the front door of D.’s house. It lacked any markings to
identify it as a pellet gun, and Officer Hulse conceded it could be mistaken for a real gun
“in the heat of the moment.”
On August 1, 2018, defendant’s car was found abandoned in the desert off a dirt
road after a county employee working in the area saw it and called it in. The same day,
based on his cell phone location, defendant was tracked down at the Lancaster apartment
of a coworker and arrested.
T. later wrote Wiggins’s and Trinity’s family an apology letter. In the letter, she
asked for forgiveness and stated she knew they were angry, but she was not at fault and
was also “‘hurting just as much .…’” She said defendant was only supposed to pick her
up and he “‘made the decision … on his own to shoot [Wiggins].’” She also wrote,
“‘You guys know how Junior is,’” referring to Wiggins, and “‘I told him Junior was
angry and he was making threats towards me and the boys. I also told him that I wasn’t
in any danger.’” However, none of her messages with defendant reflected that she told
him things had calmed down and, on cross-examination, she conceded she did not tell
him she was no longer in danger or to go back home.
8.
II. Defense Evidence
A. Character Evidence
Defendant’s mother, his girlfriend with whom he lived and shared a young
daughter, and one of his coworkers testified to defendant’s character. All three described
defendant as even tempered and honest, and stated he was not aggressive or
confrontational. Defendant was a full-time city bus driver in Los Angeles, and his
coworker testified it was a daily challenge dealing with people, but defendant had a good
reputation with other drivers, and he was always bubbly and helpful.
B. Defendant’s Girlfriend’s Testimony
Defendant’s girlfriend was at home with defendant the day of the shooting. She
testified that when he left their apartment that evening, he was concerned about his
cousin, but not angry or upset. He owned a firearm that used to be kept in the closet, but
was more recently kept in the trunk of his car. Defendant did not come home or call her
after he left the apartment that day and he did not respond to her text messages. She
testified that when deputies searched their apartment two days after the shooting, she told
them defendant’s gun was not in the apartment anymore because of their daughter. She
denied she told police he had it with him for protection from T.’s boyfriend.
C. Defendant’s Testimony
Defendant also testified. He and T. did not maintain consistent contact, but they
reconnected periodically. Several years before the shooting, T. told him Wiggins was
“‘gang-related’” after he went to pick her up and some “really aggressive” men came out
of the house to question him.
Approximately three weeks before the shooting, they reconnected through
Facebook and T. told him via Facebook Messenger that Wiggins was threatening her and
the kids. Defendant testified that T. also said Wiggins pointed “‘a big ass gun’” at them
and she mentioned going to a shelter. Defendant did not want T. to go to a shelter and he
told her she could come to his house. On the day of the shooting, she messaged
9.
defendant that Wiggins had threatened to burn down the house with her and the kids in it.
Defendant was concerned and worried, but he did not call police because he had the
impression from their conversations that T. did not want the police involved.
Defendant owned an unmodified semiautomatic firearm he purchased from a
licensed dealer six or seven years before the shooting. He also owned three 10-round
magazines, one of which was loaded, and he kept everything in a gun bag. Defendant
testified he initially bought the gun for personal protection, but only used it for target
practice at a gun range. He had moved the unloaded firearm and magazines from a shelf
in his closet to the trunk of his car about a year earlier, after his daughter grew curious
and attempted to reach the shelf with a stool.
Defendant went to pick T. up that evening. He got out of the car after he arrived,
opened the trunk, and moved stuff around to make room for T.’s bags. He spotted his
firearm in the trunk at that time. T. came out and greeted him and then said she was
going to get her belongings. Defendant did not see any children, but he knew T. and
Wiggins had three children and he saw a man’s head through the front door when T. re-
entered the house.
As defendant waited between the rear passenger door and the trunk, two of T.’s
and Wiggins’s children came out of the house and he said hi to them. Wiggins then came
out and told the children to go back in the house. He did not appear upset or angry to
defendant, but he asked defendant, “‘What’s up?’” Defendant responded that he was
taking T. and the kids with him, and Wiggins appeared shocked. Wiggins told defendant
that he was not going to take the kids and T, and defendant responded that it was T.’s
choice, not his or Wiggins’s.
Wiggins seemed upset, but was not yelling. He stated defendant was “not gonna
fucking take the kids and [T.]” Defendant told Wiggins he was just there to pick up his
cousin and was not there to argue or fight, but Wiggins stated, “‘Shut the fuck up. I’ll
beat your ass.’” Defendant told Wiggins to go back inside the house, and Wiggins
10.
repeated the threat and told defendant he was going to kill defendant and T. Defendant
again told Wiggins to go back inside the house. Wiggins repeated his threats and moved
toward defendant aggressively. Afraid, defendant then grabbed his rifle from the trunk,
but did not point it at Wiggins. He told Wiggins to leave him alone and go back in the
house.
Wiggins smirked and defendant realized the orange gun lock was on the weapon.
Defendant removed the lock, and Wiggins “stormed” into the house after telling
defendant, “‘Yeah, you’re not going nowhere.’” As defendant went to retrieve his cell
phone from his car, Wiggins reappeared carrying what defendant said looked like a large
rifle. Defendant testified that Wiggins was manipulating the gun and he moved to the
trunk as fast as he could, grabbed a magazine and loaded his rifle. Wiggins was then
pointing his weapon from the doorway of the house. As defendant prepared to fire,
Wiggins pulled the gun back through the doorway. Wiggins stuck the gun out of the door
again after manipulating it. Defendant testified he thought Wiggins was loading the gun
and that it was real, so when Wiggins pointed it at him the second time, he fired five
shots as he ran.
Defendant stated he was only trying to hit Wiggins and did not know Trinity was
in the house. After Wiggins retreated into the house, defendant jumped in his car and
drove off. He testified he was terrified and had never shot at anyone before. He just kept
driving down dirt roads until eventually his car got stuck in the desert sand and he was
unable to free it. He texted T. to ask if everyone was okay and if she had called the
police. After she responded and asked what she should do, his fear increased and he
made up a story about someone else shooting. He then called a coworker he dated briefly
in the past during a period of separation from his girlfriend and she picked him up. He
testified he threw his gun in the dirt near the car and left it there.
Defendant said he learned two people died in the shooting when someone from his
work posted a news article about it to a Facebook group chat. At one point between the
11.
shooting and his arrest, he went to Texas with his coworker, but they later returned to
California and he was arrested at her apartment.
D. Officer Hulse’s Testimony
Officer Hulse testified that defendant’s car was recovered on August 1, 2018. It
was found in the desert approximately 20 minutes from the scene of the shooting, near a
county building. The location was still within city limits, but was off a dirt road and
officers needed 4x4 off-road vehicles to access the area.
III. Rebuttal Evidence
Officer Hulse testified that 10 to 15 officers spent all day searching the desert
around defendant’s car, but never found the firearm. However, there was a pond by the
county building, approximately 100 to 150 yards from the car, and it was surrounded by
so much vegetation that they could not search it. Hulse also testified that on the day of
defendant’s arrest, he did not turn himself in right away. Instead, he did so that night
after law enforcement waited outside his coworker’s apartment all day.
Hulse testified that on the day they searched defendant’s apartment, defendant’s
girlfriend texted him to turn himself in, but he never responded to her. During her
interview, which was not recorded, she said defendant usually kept his gun in the closet.
She did not know why it was not in the apartment, but said he might have taken it for
protection. She also did not know who defendant would need protection from, but said
maybe his cousin’s boyfriend.
DISCUSSION
I. Imposition of Firearm Enhancements
As to all three counts, the prosecutor alleged defendant personally and
intentionally discharged a firearm proximately causing GBI or death, in violation of
section 12022.53, subdivision (d). The jury found the sentence enhancement allegations
true, resulting in imposition of additional, consecutive sentences of 25 years to life. The
trial court had the discretion to strike or dismiss the enhancement in the interest of justice
12.
under section 1385 as then in effect, but it declined to do so. (§§ 12022.53, subd. (h),
1385, former subd. (a).)
Based on the then-existing split in the Courts of Appeal regarding whether the trial
court had the discretion to impose a lesser uncharged enhancement in lieu of the greater
enhancement found true by the jury, defendant advanced two related claims in Perry I.
He argued that the trial court abused its discretion when it failed to substitute a lesser
enhancement under section 12022.53 and trial counsel’s failure to request the substitution
constituted ineffective assistance of counsel. He also argued that the trial court’s denial
of his motion to strike the firearm enhancement pursuant to former section 1385 was an
abuse of discretion. We rejected these arguments in Perry I. We now conclude that
defendant is entitled to remand for resentencing on counts 1 and 2 under Tirado, but we
again reject the claim that the trial court abused its discretion when it declined to strike
the firearm enhancement under former section 1385.
A. Entitlement to Remand Under Tirado
Defendant was sentenced on August 23, 2019. Approximately four months
earlier, the First District Court of Appeal considered whether the trial court had discretion
to impose a lesser enhancement under section 12022.53 that had not been found true by
the jury. (People v. Morrison (2019) 34 Cal.App.5th 217, 220 (Morrison).) Morrison
concluded that because “the court may impose a ‘lesser included’ enhancement that was
not charged in the information when a greater enhancement found true by the trier of fact
is either legally inapplicable or unsupported by sufficient evidence” (id. at p. 222), the
trial court also has the discretion under section 1385 to strike the greater enhancement
under section 12022.53, subdivision (d) and impose a lesser enhancement under
subdivision (b) or (c) of section 12022.53, notwithstanding that the jury did not make
findings as to those enhancements (Morrison, supra, at pp. 222–223).
One and one-half weeks before sentencing, this court addressed the same issue and
declined to follow Morrison. (People v. Tirado (2019) 38 Cal.App.5th 637, 644,
13.
reversed by Tirado, supra, 12 Cal.5th at p. 702.) In People v. Tirado, we interpreted
section 12022.53, subdivision (h), and section 1385, and concluded that the Legislature
did not “grant the trial court the power to modify or reduce a firearm enhancement .…”
(People v. Tirado, supra, at p. 643.)
The California Supreme Court subsequently concluded Morrison was correctly
decided and reversed our decision in People v. Tirado. (Tirado, supra, 12 Cal.5th at
pp. 697 & 702.) The high court explained, “When an accusatory pleading alleges and the
jury finds true the facts supporting a section 12022.53[, subdivision ](d) enhancement,
and the court determines that the section 12022.53[, subdivision ](d) enhancement should
be struck or dismissed under section 12022.53[, subdivision ](h), the court may, under
section 12022.53[, subdivision ](j), impose an enhancement under section 12022.53[,
subdivisions ](b) or (c).” (Id. at p. 700, fn. omitted.) The court cautioned, “however, that
this general rule only applies when a true finding under section 12022.53[,
subdivision ](d) necessarily includes a true finding under section 12022.53[,
subdivisions ](b) or (c). That would not be the case if a section 12022.53[,
subdivision ](d) enhancement were added to a charge under section 246 [shooting at an
inhabited dwelling house] or under subdivisions (c) or (d) of section 26100 [shooting
from a motor vehicle]. Those offenses are not ‘specified in subdivision (a),’ as required
for imposition of an enhancement under section 12022.53[, subdivisions ](b) or (c).
(§ 12022.53[subds. ](b), (c).)” (Ibid., fn. 12.)
In this case, the general rule articulated in Tirado is applicable to counts 1 and 2,
as murder is one of the offenses specified in subdivision (a) of section 12022.53.
Therefore, as to counts 1 and 2, the trial court has the authority to strike the
enhancements under subdivision (d) of section 12022.53 and impose enhancements under
subdivision (b) or (c) of section 12022.53. (Tirado, supra, 12 Cal.5th at p. 700.)
Notwithstanding the recent decision in Tirado, the People maintain that defendant
is not entitled to reversal for resentencing because the record does not affirmatively
14.
demonstrate error and defendant fails to show prejudice. We are not persuaded by these
arguments.
We stated in Perry I that “we presume both the trial court and trial counsel were
aware of the split of authority (People v. Jones (2017) 3 Cal.5th 583, 616; People v.
Blackburn (2015) 61 Cal.4th 1113, 1123–1124), and any claimed ‘“‘error must be
affirmatively shown’”’ (People v. Giordano (2007) 42 Cal.4th 644, 666).” (Perry I,
supra, 2021 Cal.App. Unpub. Lexis 8075, *21.) However, our statement should not be
divorced from the context in which it was made. Courts “exercising inferior jurisdiction
can and must make a choice between the conflicting decisions” (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 456), but “[a]s a practical matter, a superior court
ordinarily will follow an appellate opinion emanating from its own district even though it
is not bound to do so” (McCallum v. McCallum (1987) 190 Cal.App.3d 308, 315–316,
fn. 4). Central to our rejection of defendant’s claim in Perry I was our decision in People
v. Tirado, which declined to follow Morrison.
We explained in Perry I, “[T]he trial court lacked the discretion to substitute a
lesser enhancement under section 12022.53 where the jury only considered and found
true the enhancement alleged under subdivision (d) of section 12022.53. This forecloses
defendant’s claim that the trial court erred when it failed to impose, or consider imposing,
a lesser enhancement under section 12022.53. [¶] It also forecloses defendant’s claim
that trial counsel rendered ineffective assistance of counsel.” (Perry I, supra, 2021
Cal.App. Unpub. Lexis 8075, *21–22.) “‘Counsel is not ineffective for failing to make
frivolous or futile motions.’ ([People v. Thompson (2010) 49 Cal.4th 79, 122]; accord,
People v. Bell (2019) 7 Cal.5th 70, 126–127.) Accordingly, given the holding in [People
v.] Tirado [38 Cal.App.5th 637], trial counsel did not commit error by failing to ask the
trial court to exercise discretion that it did not possess.” (Id. at *22.)
“‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
15.
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, we have held
that the appropriate remedy is to remand for resentencing unless the record ‘clearly
indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.’” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391; accord, Tirado, supra, 12 Cal.5th at p. 694; People v. Flores (2020) 9 Cal.5th 371,
431–432.) Given the silent record in this case and, critically, the overruling of our
district’s decision in People v. Tirado, it is appropriate to remand the matter to allow the
trial court to consider whether to strike the section 12022.53, subdivision (d)
enhancements attached to counts 1 and 2 and substitute enhancements under
subdivision (b) or subdivision (c) of section 12022.53. (See People v. McDavid (2022)
77 Cal.App.5th 763, 772–774 [entitlement to retrospective application of Tirado in
nonfinal cases].)
The People’s prejudice argument, which is tethered to defendant’s claim of
ineffective assistance of counsel, does not persuade us otherwise. Nothing in the record
clearly indicates that remand would be an idle act in this case and, therefore, remand for
resentencing under Tirado is the appropriate disposition. (People v. Gutierrez, supra, 58
Cal.4th at p. 1391.)
B. Denial of Section 1385 Motion to Strike Firearm Enhancements
However, we again reject defendant’s claim that the trial court abused its
discretion when it denied his motion to strike the firearm enhancements under former
section 1385 as the law then stood. As stated in footnote 4, section 1385 was amended
effective January 1, 2022, by Senate Bill No. 81. The parties and the trial court may
address the amendment of section 1385 on remand.
16.
1. Standard of Review
“‘[A] court’s discretionary decision to dismiss or to strike a sentencing allegation
under section 1385 is’ reviewable for abuse of discretion.” (People v. Carmony (2004)
33 Cal.4th 367, 373.) “In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial
judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at pp. 376–377.)
2. Analysis
Section 12022.53 provides for “escalating additional and consecutive penalties,
beyond that imposed for the substantive crime, for use of a firearm in the commission of
specified felonies” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124), subject to the trial
court’s ability to exercise its discretion to strike or dismiss the enhancement under
section 1385 (§ 12022.53, subd. (h)). Section 1385 permits the enhancement to be
stricken or dismissed if the trial court determines it is “in furtherance of justice,” and the
reasons underlying the exercise of such discretion must be stated on the record. (§ 1385,
subds. (a), (b).)
At sentencing, trial counsel made an oral motion requesting the court strike the
firearm enhancements given that defendant did not have a prior criminal history, there
was “at least some semblance of self-defense or conflict” between defendant and
Wiggins, and defendant did not intend Trinity’s death. The court declined, noting that
17.
the jury rejected defendant’s claim of self-defense and he used an assault rifle. The court
also noted the enormity of the family’s loss.
Defendant argued that “[c]onsideration of all the circumstances does not support
imposition of the enhancement, rendering the court’s refusal to strike the enhancements
arbitrary and unreasonable.” At bottom is defendant’s disagreement with imposition of
the enhancements, and his claim is founded on the proposition that because the trial court
determined it was not in the furtherance of justice to strike the enhancements and
declined to exercise its discretion to do so, it abused its discretion. We disagree.
The felony sentencing rules relied on by defendant apply in cases involving
determinate sentences (Cal. Rules of Court, rules 4.401, 4.403),7 or indeterminate
sentences “imposed under section 1168[, subdivision ](b) only if [the sentence] is
imposed relative to other offenses with determinate terms or enhancements” (rule 4.403).
In this case, defendant was sentenced to indeterminate terms, but his claim fails in any
event.
The rules provide that “the court may consider the effect that striking the
enhancement would have on the status of the crime as a strike, the accurate reflection of
the defendant’s criminal conduct on his or her record, the effect it may have on the award
of custody credits, and any other relevant consideration.” (Rule 4.428(b).)8 Factors in
aggravation and mitigation include any that “reasonably relate to the defendant or the
circumstances under which the crime was committed.” (Rules 4.421(c), 4.423(c).)
“Relevant factors enumerated in these rules must be considered by the sentencing judge,
and will be deemed to have been considered unless the record affirmatively reflects
7 Further references to rules are to the California Rules of Court.
8 Effective March 14, 2022, the Judicial Council amended the Advisory Committee
Comment to rule 4.421 and amended rules 4.406, 4.423 and 4.428. Those amendments do not
relate to the subdivisions relied on herein, with the exception of (b)(8) of rule 4.406 cited in
Perry I, which has been renumbered to (b)(7).
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otherwise.” (Rule 4.409.) Relevant to this specific claim, a trial court is required to give
a reason for its sentencing choice only when it grants relief under section 1385. (§ 1385,
subd. (a); rule 4.406(b)(7).)
There is no showing that the court misunderstood the scope of its discretion or
imposed a sentence that was unauthorized. Rather, the linchpin in defendant’s argument
was that the court stated there were no aggravating circumstances and did not discuss any
mitigating factors beyond his lack of a criminal record, although additional factors in
mitigation existed.
As defendant points out, mitigating circumstances under the rules include that
“[t]he victim was an initiator of, willing participant in, or aggressor or provoker of the
incident” (rule 4.423(a)(2)), and that “[t]he crime was committed because of an unusual
circumstance, such as great provocation, that is unlikely to recur” (id., (a)(3)). However,
nothing in the record suggests the trial court felt bound by the jury’s rejection of
defendant’s self-defense claim or that it otherwise disregarded the issue. Rather, the
court noted that it accepted the jury’s verdict, but also stated, “To an extent the defense is
now trying to convince this Court that there was a semblance of self-defense which arose
to a conflict between the victim and the defendant, and based on the evidence presented,
it does not appear to the Court of such.”
It is the jury’s duty to weigh the evidence and assess the credibility of the
witnesses in reaching the verdict, but the trial court, as well, exercises its sentencing
discretion through the lens of the evidence adduced at trial. Although defendant
disagrees with the court’s decision, he identifies nothing in the record that shows the
court’s exercise of discretion exceeded the bounds of reason. There was conflicting
evidence regarding who initiated the armed confrontation, and T. told Officers Hulse and
Hansen that it was defendant who pointed a gun first. The court’s view of the facts,
therefore, is not only supported by evidence adduced at trial, but that evidence
undermines the mitigating factors relied on by defendant in support of his argument.
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Furthermore, although the trial court found no aggravating factors, the facts in this
case could have easily supported a contrary finding. (See People v. Brooks (2017) 3
Cal.5th 1, 39 [“‘“[W]e review the ruling, not the court’s reasoning and, if the ruling was
correct on any ground, we affirm.”’”].) Defendant fired five shots at the occupied
dwelling. While defendant was only aiming for Wiggins and did not know Trinity was
inside, he nevertheless fired at the house with a high-powered weapon knowing, at a
minimum, that T. and her three young children were inside. (Rule 4.421(a)(1) [“crime
involved great violence, great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness”], id., (b)(1) [“defendant
has engaged in violent conduct that indicates a serious danger to society”].)
As stated, the trial court is presumed to have properly exercised its sentencing
discretion and defendant bears the burden of showing error. (People v. Carmony, supra,33 Cal.4th at pp. 376–377.) Neither a defendant’s nor a reviewing court’s mere
disagreement with the ruling will suffice as grounds to set it aside. (Id. at p. 377.) The
facts of this case are unusual and tragic in that defendant did not have a prior criminal
record and was a contributing member of society, there was no indication he was an
aggressive person, and he drove to California City planning only to help his cousin and
her three young children leave what he believed to be, and what may have been, an
abusive situation. However, defendant fired multiple rounds from a high-powered rifle at
a house, killing two people, one of them a child, and in declining to strike the firearm
enhancements, the trial court acted well within the bounds of its broad sentencing
discretion. (Ibid.)
Therefore, we reject defendant’s claim of error. The trial court might make
different sentencing choices on remand in light of Tirado and Senate Bill No. 81’s
amendment of section 1385, but it did not abuse its discretion when it declined to strike
the enhancements under section 1385 as the law stood in 2019.
20.
II. Imposition of Consecutive Sentences
Finally, defendant claimed the trial court abused its discretion in imposing
consecutive sentences. Although he acknowledged the existence of multiple victims can
support imposition of consecutive sentences, he argues that “[c]onsidering the absence of
aggravating factors, imposition of concurrent sentences was the only reasonable choice.”
We again reject this claim.
The trial court had broad discretion to impose consecutive sentences (§ 669;
People v. Shaw (2004) 122 Cal.App.4th 453, 458), and it was not required to state its
reasons for selecting consecutive indeterminate terms (People v. Arviso (1988) 201
Cal.App.3d 1055, 1058, superseded by rule on another ground as stated in People v.
Calhoun (2007) 40 Cal.4th 398, 407–408, fn. 6; see § 1170, subd. (c) [statement of
reasons for selecting determinate sentencing choice required]; rule 4.403 [rules apply to
determinate sentencing]). Nevertheless, even when the law requires a reason be stated,
the existence of one aggravating factor suffices (People v. Davis (1995) 10 Cal.4th 463,
552; accord, People v. Leon (2010) 181 Cal.App.4th 452, 468–469), and the court may
properly rely on the fact that the offenses were committed against multiple victims
(People v. Shaw, supra, at pp. 458–459; accord, People v. Leon, supra, at p. 468).
As discussed ante, there was evidence to support a finding of additional
aggravating factors, but even in the absence of such evidence, the trial court had the
discretion to impose consecutive indeterminate terms based solely on the fact that the
shooting killed two people. (People v. Shaw, supra, 122 Cal.App.4th at pp. 458–459;
People v. Leon, supra, 181 Cal.App.4th at p. 468.) Therefore, the record does not
support defendant’s claim of error.
21.
DISPOSITION
The matter is remanded for resentencing. The judgment is otherwise affirmed.
MEEHAN, J.
WE CONCUR:
LEVY, Acting P. J.
DeSANTOS, J.
22.