People v. Eldridge CA4/1

Filed 1/12/23 P. v. Eldridge CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079641
Plaintiff and Respondent,
v. (Super. Ct. No. FVI19003462)
REGINALD ELDRIDGE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, John P. Vander Feer, Judge. Affirmed in part; reversed in part;
remanded with directions.
Stephen M. Hinkle, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Steve
Oetting, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Reginald Eldridge of robbery (Pen. Code,1 § 211;
count 1) and unlawfully possessing a firearm (§ 29800, subd. (a)(1); count 2).
The jury also found true the allegation that Eldridge personally used a
firearm during the commission of count 1 (§ 12022.53, subd. (b)). In a
bifurcated proceeding, the court found that Eldridge suffered two prior
offenses that qualified as strike priors (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i)) and serious felony priors (§ 667, subd. (a)(1)).
The court sentenced Eldridge to prison for 10 years for the firearm
enhancement plus 25 years to life for count 1. However, the court stayed
Eldridge’s sentence for count 2 under section 654. Also, the court struck
Eldridge’s two felony priors.
In addition, the court imposed a restitution fine of $300 (§ 1202.4) and
stayed a $300 parole revocation fine (§ 1202.45). As to count 1, the court
imposed a $30 conviction assessment (Gov. Code, § 70373) and a $40 court
security assessment (§ 1465.8).
Eldridge appeals, contending the trial court erred by: (1) imposing a
criminal protective order; (2) failing to realize it had discretion to impose
punishment for a lesser, uncharged firearm enhancement; and (3) imposing
various fines and assessments without holding an ability to pay hearing. The
People correctly concede the trial court lacked the authority to impose the
criminal protective order. In addition, we agree with Eldridge that it does
not appear, on the record before us, that the trial court understood that it had
the discretion to strike the firearm enhancement under section 12022.53,
subdivision (b) and sentence Eldridge under a lesser, uncharged firearm
enhancement. Accordingly, we vacate Eldridge’s sentence and remand the
matter back to the superior court to conduct a new sentencing hearing
1 Statutory references are to the Penal Code unless otherwise specified.
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consistent with this opinion. Because we are remanding the matter for
resentencing, we do not address Eldridge’s challenge to the fines and
assessments imposed without an ability to pay hearing. At the resentencing,
he may address that issue as well. In all other respects, we affirm the
judgment.
FACTUAL BACKGROUND
The underlying facts of Eldridge’s crimes are not in dispute or germane
to our analysis of the issues before us. Yet, to provide some context, we adopt
the statement of facts as set forth in the respondent’s brief.
Prosecution
Eldridge was a regular customer at the Chevron Extra Mile
convenience store on Palmdale Road. Typically, he would use the store to
purchase Newport and Camel cigarettes. On the day in question, Eldridge
began acting suspiciously as he was waiting in line. He kept looking out the
window and “[j]ust like looking everywhere.” When it was his turn, Eldridge
asked for two cartons of Camel cigarettes. Once they were in a bag and he
was rung up, Eldridge brandished a firearm and told the cashier to give him
money. There was about $70 in the register. After the clerk put the money in
the bag, Eldridge fled the scene with his loot.
After the robbery, Eldridge came back to the store four or five times.
Like his previous visits, Eldridge purchased tobacco. Sometimes the
employees would call the police when they saw Eldridge, but the police never
arrived in time to apprehend him. About 15 months after the robbery, police
located and arrested Eldridge in a parking lot behind the convenience store.
At trial, the victim identified Eldridge as the robber with 100 percent
certainty.
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Defense
Eldridge’s defense was that he had been misidentified. He called an
officer to testify that the victim said the robber had a mustache. Eldridge did
not have a mustache when he was detained. He also presented evidence that
he had been identified as the robber at a live show up. Eldridge then called
an expert witness who testified about the difficulties involved in the
eyewitness identification process.
DISCUSSION
I
THE CRIMINAL PROTECTIVE ORDER
A. Eldridge’s Contentions
Eldridge contends, and the People concede, that the trial court erred
when it imposed a criminal protective order (CPO). We agree with the
parties that the CPO is not authorized under statute. Accordingly, it must be
stricken.
B. Background
At sentencing, the prosecutor stated that the victim was requesting a
CPO. Eldridge’s trial counsel objected, pointing out that Eldridge was “not
going to get out of prison any time soon . . . . So there is . . . no good cause to
issue the CPO.” Citing to section “136.2Gi,”2 the court stated it had
authority to grant “an order protecting a witness in a violent crime from all
contact at that time by the defendant. . . .” The court then announced, “I am
going to grant the criminal protective order.” The court explained that terms
2 In the transcript, the court referred to section 136.2Gi. However, there
is no subdivision (G)(i). Thus, it appears the court was referring to
section 136.2, subdivision (a)(1)(G)(i). The copy of the court’s order in the
record simply states that it was imposed under “Penal Code, § 136.2.”
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of the order, and that “for the next three years, [Eldridge was] . . . to have no
contact with [the victim].”
C. Analysis
Section 136.2, subdivision (a)(1), authorizes a trial court to issue orders
protecting victims or witnesses in a criminal matter. (People v. Ponce (2009)
173 Cal.App.4th 378, 382.) Courts have construed section 136.2,
subdivision (a) to authorize imposition of protective orders that remained in
effect only during the pendency of the criminal action. (People v. Corrales
(2020) 46 Cal.App.5th 283, 286; People v. Stone (2004) 123 Cal.App.4th 153,
159-160; People v. Selga (2008) 162 Cal.App.4th 113, 118-119.) In response to
this restrictive judicial construction, the Legislature created an exception to
the preconviction limitation of a section 136.2 restraining order by adding
subdivision (i). (Stats. 2011, ch. 155, § 1; People v. Beckemeyer (2015) 238
Cal.App.4th 461, 465.) That subdivision permits a court to issue a
postconviction protective order of up to 10 years when a defendant is
convicted of a crime involving domestic violence, certain enumerated sexual
offenses, street terrorism, or crimes that require sex offender registration
under section 290. (§ 136.2, subd (i)(1).) Except as set forth in
subdivision (i)(1), “section 136.2 generally does not authorize a trial court to
impose a postjudgment restraining order against a criminal defendant.”
(Corrales, at p. 286; Beckemeyer, at p. 465.)
Here, the court imposed a postjudgment restraining order against
Eldridge. The order appears to have been imposed under section 136.2,
subdivision (a)(1)(G)(i). Because that provision only permits courts to issue
CPOs during the pendency of a criminal action, and not postjudgment, the
order was not proper under section 136.2, subdivision (a)(1)(G)(i).
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In addition, the CPO was not a proper postjudgment restraining order
under section 136.2, subdivision (i). In People v. Garcia (2022) 76
Cal.App.5th 887, the defendant “was found guilty of second degree robbery
and assault with a deadly weapon.” (Id. at p. 890.) “The court imposed an
eight-year prison term, suspended execution of sentence and placed
defendant on five years’ formal probation.” (Ibid.) “The court also imposed a
10-year protective order pursuant to Penal Code section 136.2,
subdivision (i)(1).” (Ibid.) On appeal, the defendant argued that “the court
exceeded its authority in imposing the postconviction protective order.”
(Ibid.) The People agreed. (Id. at p. 901.) As the court explained,
“Section 136.2, subdivision (i) provides authority for the imposition of
postconviction protective orders where a defendant is convicted of a
qualifying domestic violence offense.” (Ibid.) Because the defendant’s
convictions for robbery and assault were not domestic violence offenses “[t]he
court did not have statutory authority to impose the postconviction protective
order. . . .” (Ibid.) Therefore, the court concluded that the protective order
must be stricken. (Ibid.)
Like Garcia, Eldridge’s robbery and unlawful firearm possession
convictions did not involve domestic violence, a gang, or a sex crime. As such,
this was not a proper postconviction CPO under section 136.2, subdivision (i).
Because the order was not properly imposed during the pendency of the
criminal action or properly imposed as a postconviction order, the court
exceeded its authority by imposing the order under section 136.2.
Consequently, the subject CPO must be stricken.
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II
THE FIREARM ENHANCEMENT
A. Eldridge’s Contentions
Eldridge argues that the trial court erred by failing to consider
imposing an uncharged lesser included firearm enhancement under
section 12022.5, subdivision (a) rather than imposing the charged firearm
enhancement under section 12022.53, subdivision (b).
B. Background
The jury found true the allegation that Eldridge personally used a
firearm during the commission of a robbery. Before sentencing, Eldridge
moved to strike the firearm enhancement under section 1385, subdivision (a).
At the sentencing hearing, the court denied the motion. In doing so, it
recognized its discretion to strike the enhancement but observed that the
Legislature had provided increased punishment for criminals who use guns
because firearms can cause “great damage.” The court further noted that if
Eldridge’s gun had been fired, “people could have died.”
C. Analysis
Section 12022.5, subdivision (a) provides that “any 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.”
Section 12022.53 established a three-tiered system for firearm
enhancements that applies to defendants who use firearms during the
commission of certain felonies. (§ 12022.53.) First, a defendant who
“personally uses a firearm” during the commission of a felony is subject to an
additional and consecutive enhancement of 10 years to life. (§ 12022.53,
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subd. (b).) Next, a defendant who “personally and intentionally discharges a
firearm” during the commission of a felony is subject to an additional and
consecutive enhancement of 20 years to life. (§ 12022.53, subd. (c).) Finally,
a defendant who “personally and intentionally discharges a firearm and
proximately causes great bodily injury[ ] . . . or death” during the commission
of a felony is subject to an additional and consecutive enhancement of 25
years to life. (§ 12022.53, subd. (d).) Section 12022.53 further provides that a
sentencing court may strike or dismiss an enhancement required by
subdivisions (b), (c), and (d) “in the interest of justice.” (§ 12022.53,
subd. (h).)
Before the California Supreme Court’s recent decision in People v.
Tirado (2022) 12 Cal.5th 688 (Tirado), the question of whether a trial court
possessed the discretion to modify a section 12022.53 firearm enhancement
by imposing a lesser enhancement divided California Courts of Appeal.
(Compare People v. Morrison (2019) 34 Cal.App.5th 217, 223 (Morrison) with
People v. Tirado (2019) 38 Cal.App.5th 637, 643, review granted
November 13, 2019, S257658.) For example, in Morrison, the court held that
a trial court can strike a section 12022.53, subdivision (d) enhancement and
impose a lesser section 12022.53, subdivision (b) or (c) enhancement instead.
(Morrison, at p. 223.) However, other courts held that section 12022.53 did
not authorize a court to “substitute one enhancement for another.” (People v.
Tirado, at p. 643.)
The California Supreme Court recently resolved this split in Tirado by
holding, “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
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court may, under section 12022.53[, subdivision] (j), impose an enhancement
under section 12022.53[, subdivisions] (b) or (c).” (Tirado, supra, 12 Cal.5th
at p. 700.) Furthermore, even if the prosecution “did not specifically allege
enhancements under section 12022.53[, subdivisions] (b) or (c), the trial court
could impose those enhancements even when the section 12022.53[,
subdivision] (d) enhancement was not legally or factually inapplicable.” (Id.
at p. 697.) In explaining its reasoning, the court reviewed the legislative
intent underlying the amendments to section 12022.53 and concluded “the
statutory framework permits a court to strike the section 12022.53,
[subdivision] (d) enhancement found true the jury to impose a lesser
uncharged statutory enhancement instead.” (Tirado, at p. 692.)
Here, arguably, Eldridge’s claim of error requires an extension of the
holding in Tirado. There, our high court considered a narrower issue. It did
not consider whether trial courts have discretion to strike a section 12022.53,
subdivision (b) enhancement and substitute an uncharged, section 12022.5,
subdivision (a) enhancement. However, in the instant action, Eldridge
asserts “there is no basis—in logic or in precedent—for limiting the court to
enhancements contained within the same statutory provision as the charged
enhancement.” The People counter that subdivision (j) of section 12022.533
provides that the only lesser enhancement that may be imposed when an
enhancement under section 12022.53 has been found true would be another
enhancement under that section.
3 Section 12022.53, subdivision (j) states that when an enhancement
under section 12022.53 “has been admitted or found to be true, the court
shall impose punishment for that enhancement pursuant to this section
rather than imposing punishment authorized under any other law, unless
another enhancement provides for a greater penalty or a longer term of
imprisonment.”
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After briefing was complete in the instant action, at least two published
opinions addressed the precise issue before us, concluding Eldridge’s
argument is more persuasive. (See People v. Johnson (2022) 83 Cal.App.5th
1074, 1085-1086 (Johnson), review granted Dec. 14, 2022, S277196
[concluding that under Tirado the trial court may impose an uncharged
lesser included enhancement per section 12022.5 after striking a greater
enhancement under section 12022.53]; People v. Fuller (2022) 83 Cal.App.5th
394, 397 (Fuller), review granted Nov. 22, 2022, S276762 [same].) However,
a recent published case came to the opposite conclusion. (See People v. Lewis
(2022) 86 Cal.App.5th 34 [concluding § 12022.53, subdivision (j) prevented
the trial court from substituting the defendant’s § 12022.53 firearm
enhancement for a more lenient firearm enhancement under § 12022.5,
subdivision (a)].) In addition, we are aware of an unpublished decision that
reached the same supposition as Lewis. Our high court granted the
appellant’s petition for review in the unpublished opinion and denied the
People’s request to publish.4
Although our high court will resolve this split and provide the trial
courts with the appropriate guidance, until then, we must weigh in on this
issue to resolve Eldridge’s challenge here. In doing so, however, we shall
refrain from saying more than what has already been said. Our colleagues on
both sides of the dispute have done an excellent job of analyzing the salient
issues. That said, we agree with the analysis and conclusion set forth in
Johnson, supra, 83 Cal.App.5th at pages 1088 through 1093, review granted.
(See also Fuller, supra, 83 Cal.App.5th at pp. 400-403, review granted.) As
such, it appears that remand is necessary to allow the court to exercise its
4 See People v. McDavid (July 14, 2022, D078919) [Cal.App. Unpub.
LEXIS 4364], review granted Sept. 28, 2022, S275940.
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informed discretion to determine whether to strike the enhancement under
section 12022.53, subdivision (b) and impose a lesser enhancement under
section 12022.5, subdivision (a).5
Nonetheless, the People argue that it is clear, on the record before us,
that the court would have declined to impose a lesser included enhancement.
To this end, they point out that, at the sentencing hearing, the court
emphasized that “[a] firearm is something that causes great damage” and
noted that had Eldridge’s gun had been fired, “people could have died” and
“been seriously injured.” The court also observed that a gun “generates”
“fear,” and the victim remained traumatized by the experience. The People
assert the court’s comments show that it would not have opted to impose a
lesser enhancement during sentencing.
However, the court’s comments only explained why it was not willing to
strike the enhancement under section 12022.53, subdivision (b). At that
time, no one was arguing that the court could impose a lesser enhancement
5 We summarily reject the People’s argument that Eldridge forfeited this
issue on appeal by failing to raise it in the trial court. At the time of
Eldridge’s May 21, 2021 sentencing hearing, the California Supreme Court
had not yet issued its opinion in Tirado, supra, 12 Cal.5th 688, and there is
nothing in the record indicating that the trial court anticipated the Supreme
Court’s holding or otherwise believed it had the discretion to strike the
firearm enhancement under section 12022.53, subdivision (b) and instead
impose a lesser, uncharged enhancement under 12022.5, subdivision (a).
Further, we are not persuaded by the People’s argument that Eldridge was
on notice to make such an argument because Morrison, supra, 34 Cal.App.5th
217 was decided two years before Eldridge was sentenced. There was a split
among the appellate courts regarding whether a court could impose a lesser
included enhancement. That split was resolved in Tirado, eight months after
Eldridge was sentenced. (See GreenLake Capital, LLC v. Bingo
Investments, LLC (2010) 185 Cal.App.4th 731, 739, fn. 6 [a reviewing court is
“more inclined to find an exception to the general rule of forfeiture when
there has been a change in decisional law that affects the rights of the
parties”].)
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under section 12022.5, subdivision (a). Accordingly, the court’s comments
highlight the court’s position on the decision to strike or impose the
enhancement altogether, but they are not conclusive of whether remand
would be futile if the court knew it had the discretion to impose a lesser
enhancement.
In short, here, the court’s statements alone are not sufficient to “clearly
indicate” that the trial court would have imposed the section 12022.53,
subdivision (b) enhancement if it knew it had the discretion to impose a
lesser enhancement under section 12022.5, subdivision (a). (See People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) The statements
highlighted by the People merely illustrate the court’s reasoning as to
whether it should entirely impose or strike the section 12022.53,
subdivision (b) enhancement.
Simply put, there is nothing in the record to show that, given the choice
to impose the lesser firearm enhancements under section 12022.5,
subdivision (a) rather than the enhancement under subdivision (b) of
section 12022.53, the trial court would have imposed the same sentence as
when it believed it only had the binary choice to dismiss or impose the
section 12022.53, subdivision (b) enhancement. Further, even when the
record reflects that the resentencing court “understood that they had some
discretion in sentencing,” the record still needs to clearly indicate that the
court “would have imposed the same sentence had they been aware of the full
scope of their discretion.” (Gutierrez, supra, 58 Cal.4th at p. 1391.) Thus, we
conclude that remand for resentencing is appropriate in this case.
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VI
THE ABSENCE OF AN ABILITY TO PAY HEARING
At sentencing, the court imposed a restitution fine of $300 (§ 1202.4)
and stayed a $300 parole revocation fine (§ 1202.45). As to count 1, the court
imposed a $30 conviction assessment (Gov. Code, § 70373) and a $40 court
security assessment (§ 1465.8).
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Eldridge
contends that imposition of these various fines, fees, and assessments,
without a determination of his ability to pay, violated his constitutional right
to due process. He also argues the accessed fees and fines violate the Eighth
Amendment to the United States Constitution. As such, Eldridge asserts his
case should be remanded to allow the trial court to determine whether he has
the ability to pay the subject fines and assessments. We conclude this claim
is moot because we already have determined this matter must be remanded
for Eldridge to be resentenced. If Eldridge so chooses, he may address the
imposition of any fees or fines during his resentencing hearing.
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DISPOSITION
Eldridge’s sentence is vacated. This matter is remanded to the superior
court with directions to: (1) strike the criminal protective order and
(2) resentence Eldridge consistent with this opinion. In all other respects, the
judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DO, J.
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