People v. Daniel CA2/7

Filed 12/8/20 P. v. Daniel CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B294344
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA088303)
v.
SHAKIR LEON DANIEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court, Los
Angeles County, Michael Jesic, Judge. Convictions affirmed;
judgment reversed with directions.
Steven Schorr, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Michael C. Keller and David A.
Voet, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Shakir Leon Daniel of murder and found
true the allegation he personally and intentionally discharged a
firearm causing great bodily injury or death. Daniel appeals,
challenging four aspects of his sentence. We agree with three of
them, two of which the People concede and one of which raises an
issue currently before the Supreme Court. Consequently, we
direct the trial court to exercise its discretion whether to impose a
lesser firearm enhancement and whether to strike or dismiss a
five-year enhancement for a prior serious felony conviction. We
also direct the trial court to correct mistakes in the sentencing
minute order and the abstract of judgment. Because Daniel does
not challenge his convictions, we affirm them.
FACTUAL AND PROCEDURAL BACKGROUND
A. Daniel Kills His Friend
After Daniel slept with the ex-girlfriend of one of his
friends, his relationship with the friend deteriorated. Late one
evening they got into an argument, and Daniel shot his friend
several times at close range, killing him.
B. A Jury Convicts Daniel of Murder and Finds
a Firearm Allegation True
The People charged Daniel with one count of murder and
one count of possession of a firearm by a felon. The People
alleged Daniel personally used a firearm within the meaning of
Penal Code section 12022.53, subdivision (b),1 personally and
intentionally discharged a firearm within the meaning of section
1 Statutory references are to the Penal Code.
2
12022.53, subdivision (c), and personally and intentionally
discharged a firearm causing great bodily injury or death within
the meaning of section 12022.53, subdivision (d). The People also
alleged Daniel had a prior serious or violent felony conviction
within the meaning of the three strikes law (§§ 667, subds. (b)-(i),
1170.12) and a prior serious felony conviction within the meaning
of section 667, subdivision (a)(1).
The jury convicted Daniel of first degree murder and found
true the allegation he personally and intentionally discharged a
firearm causing great bodily injury or death within the meaning
of section 12022.53, subdivision (d). Although the People also
alleged Daniel personally used a firearm within the meaning of
section 12022.53, subdivision (b), and personally and
intentionally discharged a firearm within the meaning of section
12022.53, subdivision (c), the court instructed the jury only on
the enhancements under section 12022.53, subdivisions (b)
and (d), and the jury did not make any findings on the allegations
under section 12022.53, subdivisions (b) or (c). The jury also
convicted Daniel of possession of a firearm by a felon. Daniel
admitted, and the trial court found, he had a prior serious or
violent felony conviction within the meaning of the three strikes
law and a prior conviction for a serious felony within the meaning
of section 667, subdivision (a)(1).
The trial court granted Daniel’s motion under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to
dismiss his prior serious or violent felony conviction for purposes
of the three strikes law. On the murder conviction, the trial court
sentenced Daniel to 25 years to life, plus 25 years to life for the
firearm enhancement under section 12022.53, subdivision (d),
and five years for the prior serious felony conviction under
section 667, subdivision (a)(1), for a total prison term of 55 years
to life. On the conviction for possession of a firearm by a felon,
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the court sentenced Daniel to a concurrent term of two years. In
another case where Daniel pleaded no contest to possession of a
firearm by a felon and admitted he had a prior serious or violent
felony conviction (which the court did not strike under Romero),
the court sentenced Daniel to a consecutive term of two years,
doubled to four years under the three strikes law. Daniel timely
appealed.
DISCUSSION
A. Resentencing Is Appropriate for the Trial Court To
Exercise Its Discretion Whether To Impose a Lesser
Firearm Enhancement Under Section 12022.53 and
Whether To Strike the Five-year Enhancement Under
Section 667, Subdivision (a)(1)
As stated, in sentencing Daniel on his murder conviction,
the trial court imposed a term of 25 years to life for the firearm
enhancement under section 12022.53, subdivision (d), for
personally and intentionally discharging a firearm causing great
bodily injury or death. The trial court sentenced Daniel after the
Legislature amended section 12022.53, subdivision (h), to give
the court the discretion to strike or dismiss firearm
enhancements under section 12022.53. (Stats. 2017, ch. 682, § 2,
eff. Jan. 1, 2018.) The trial court recognized it had discretion
under section 1385 and section 12022.53, subdivision (h), to
strike the enhancement under section 12022.53, subdivision (d),
but the court chose not to strike the enhancement. Daniel argues
that, while the court understood it had discretion to strike or
dismiss the enhancement under section 12022.53, subdivision (d),
it is “unclear from the record . . . whether the court necessarily
understood that dismissing the enhancement need not
necessarily have resulted in the imposition of no punishment
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whatsoever directed at the use and/or discharge of the firearm in
conjunction with the murder. Rather, it still could have added
either 10 or 20 years to the sentence by opting to impose the
terms prescribed under subdivisions (b) or (c), respectively, of
section 12022.53. Moreover, since the record provides no
indication that the court knew it had these alternatives, it is
impossible to tell whether or not it would have ruled in the same
way if it had understood the full scope of its discretion.”2
Daniel’s argument squarely raises the issue on which the
courts of appeal in People v. Morrison (2019) 34 Cal.App.5th 217(Morrison) and People v. Tirado (2019) 38 Cal.App.5th 637,
review granted November 13, 2019, S257658 (Tirado), reached
opposite conclusions and which the Supreme Court granted
review in Tirado to decide. Thus, we write on a slate that is
neither clean nor destined (at least the writing on it) to last long.
As the court in People v. Garcia (2020) 46 Cal.App.5th 786,
review granted June 10, 2020, S261772 (Garcia), summarized the
issue before siding with Tirado over Morrison: “Trial courts now
have the discretion to ‘strike or dismiss’ a firearm enhancement
pled by the People and found true by a jury beyond a reasonable
doubt. [Citation.] But does a trial court have the discretion to
substitute the firearm enhancement found true by the jury for a
lesser enhancement never presented to that jury? So far, the
courts have split on the question. [Morrison] says ‘yes,’ while
[Tirado] says ‘no.’ Our Supreme Court has granted review on
this question . . . .” (Garcia, at p. 788.)
2 Daniel also contends, the People concede, and we agree
remand for resentencing is appropriate to allow the trial court to
exercise its discretion whether to strike the five-year
enhancement the court imposed under section 667, subdivision
(a)(1), for Daniel’s prior serious felony conviction.
5
Putting aside the slight procedural differences between this
case and Garcia, Tirado, and Morrison,3 and until the Supreme
Court decides the issue, we weigh in on the Morrison side of the
ledger. As the court in Morrison explained, “Case law has
recognized that 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.”4
(Morrison, supra, 34 Cal.App.5th at p. 222.) The same principle
gives the court discretion to impose an enhancement under
section 12022.53, subdivision (b) or (c), when the court has
3 In Garcia the People alleged all three firearm
enhancements under section 12022.53, but “with the concurrence
of the parties,” instructed only on the enhancement under section
12022.53, subdivision (d). (Garcia, supra, 46 Cal.App.5th at
p. 789.) In Tirado the People alleged, and the trial court
instructed on, only the firearm enhancement under section
12022.53, subdivision (d). (Tirado, supra, 38 Cal.App.5th at
pp. 640, 644.) And in Morrison the People originally alleged all
three firearm enhancements under section 12022.53, but at trial
the People moved to dismiss the allegations under section
12022.53, subdivisions (b) and (c), “leaving only the enhancement
for personal discharge causing death under section 12022.53,
subdivision (d),” which the jury found true. (Morrison, supra,
34 Cal.App.5th at p. 221.) Here, the People alleged all three
firearm enhancements, the trial court instructed on only two of
them, and the jury returned a true finding only on the allegation
under section 12022.53, subdivision (d).
4 There is no dispute the enhancements in section 12022.53,
subdivision (b) and (c), are “lesser included enhancements” of the
enhancement in section 12022.53, subdivision (d). There is no
way to commit acts that satisfy the latter without also
committing acts that satisfy the former.
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stricken an enhancement under section 12022.53, subdivision (d).
Indeed, the Legislature’s purpose in amending section 12022.53,
subdivision (h), was to expand the trial court’s discretion to
reduce criminal sentences in appropriate cases, not to restrict it.
(See Sen. Com. on Public Safety, Analysis of Sen. Bill No. 620
(2017-2018 Reg. Sess.) as amended Mar. 28, 2017, p. 3 [Sen. Bill
No. 620 “would allow a court to use judicial discretion when
applying a sentence enhancement when a person uses or
discharges a firearm when a person is convicted for committing a
felony”]; id. at p. 8 [Sen. Bill No. 620 “allows a court to use
judicial discretion and take into account the nature and severity
of the crime and other mitigating and aggravating factors during
sentencing” and “provides judges the ability to impose sentences
that fit the severity of the offense”]; Assem. Com. on Public
Safety, Analysis of Sen. Bill No. 620 (2017-2018 Reg. Sess.) as
amended Mar. 28, 2017, p. 8 [Sen. Bill No. 620 “allows a judge to
take into account the nature and severity of the crime, as well as
the individual’s culpability, during sentencing” and “provides
judges the ability to impose sentences that fit the severity of the
offense, helping to ensure that incarcerated Californians do not
serve unnecessarily long sentences”]; Sen. 3d reading analysis of
Senate Bill No. 620 (2017-2018 Reg. Sess.) as amended June 15,
2017, p. 3 [Sen. Bill No. 620 “allows a judge to exercise discretion
on whether or not to make a long sentence longer if it is in the
interest of justice”].)
The conclusion of the courts in Tirado and Garcia that trial
courts do not have discretion to impose a 10- or 20-year
enhancement under section 12022.53, subdivision (b) or (c), if the
court strikes or dismisses a 25-years-to-life enhancement under
section 12022.53, subdivision (d), was based on the rationale that
“[n]othing in the plain language of sections 1385 and 12022.53,
subdivision (h) authorizes a trial court to substitute one
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enhancement for another.” (Tirado, supra, 38 Cal.App.5th at
p. 643; see Garcia, supra, 46 Cal.App.5th at p. 791 [“section
12022.53, subdivision (h) confers the authority to ‘strike or
dismiss’ a firearm enhancement set forth in section 12022.53”
and “says nothing about substituting or modifying
enhancements”].) As the court in Tirado stated, “This language
indicates the court’s power pursuant to these sections is binary:
The court can choose to dismiss a charge or enhancement in the
interest of justice, or it can choose to take no action. There is
nothing in either statute that conveys the power to change,
modify, or substitute a charge or enhancement.” (Tirado, at
p. 643.)
But by asking the wrong question, the courts in Tirado and
Garcia arrived at the wrong answer. The question is not whether
the court has the “binary” discretion “pursuant to” the plain
language of section 12022.53, subdivision (h), to impose a lesser
enhancement after the greater enhancement has been stricken or
is otherwise unavailable. The question is whether the plain
language of section 12022.53, subdivision (h), takes away
discretion the court already has. And it doesn’t. As the
concurring opinion in People v. Valles (2020) 49 Cal.App.5th 156,
review granted July 22, 2020, S262757, explained: “The question
is not whether the amended statute conveys the power to impose
an uncharged lesser enhancement (or change or modify an
enhancement). Rather, the question is whether, having exercised
its power under the amended statute to strike a greater
enhancement, the court still has its previously recognized power to
impose an uncharged lesser.” (Id. at p. 171 (conc. opn. of
Menetrez, J.).) There is no “only” in section 12022.53,
subdivision (h).
The separation of powers concern relied on by the court in
Garcia has no application here. The court in Garcia stated that
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the “decision of what charges to bring (or not to bring)—and,
more to the point here, which sentencing enhancement to allege
(or not to allege)—ordinarily belongs to the prosecutors who are
charged with executing our state’s criminal law” and that
“[c]onstruing section 12022.53, subdivision (h) to allow a court to
substitute a lesser included firearm enhancement would overstep
the carefully drawn line delineating the powers of the judicial
and executive branches.” (Garcia, supra, 46 Cal.App.5th at
pp. 791-792.) Here, the prosecution alleged all three
enhancements under section 12022.53. The court, however,
instructed on only two of them, and the jury made a finding on
only one of them.
Finally, as Daniel argues and the People do not dispute,
there is no indication in the record the trial court was aware it
had discretion to strike the 25-years-to-life firearm enhancement
under section 12022.53, subdivision (d), and impose either the 10-
year enhancement under section 12022.53, subdivision (b), or the
20-year enhancement under section 12022.53, subdivision (c).
(See Morrison, supra, 34 Cal.App.5th at p. 224.) “‘“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 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. Flores (2020) 9 Cal.5th 371, 431-432; see People v. Ochoa
(2020) 53 Cal.App.5th 841, 853.) The trial court stated it was
exercising its discretion not to strike the enhancement under
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section 12022.53, subdivision (d), but the court, which sentenced
Daniel five months before the Morrison decision, did not mention
the two lesser enhancements. The record does not indicate at all,
let alone clearly, that the trial court would have imposed the
enhancement under section 12022.53, subdivision (d), if it knew it
had the discretion to impose a lesser enhancement under section
12022.53, subdivision (b) or (c). Indeed, the court granted
Daniel’s motion under Romero, supra, 13 Cal.4th 497 to strike his
prior serious or violent felony conviction under the three strikes
law. Remand for resentencing is appropriate.
B. The Trial Court Did Not Err in Imposing a Full
Determinate Term on Daniel’s Second
Conviction for Possession of a Firearm by a Felon
As discussed, the trial court sentenced Daniel on two
convictions in separate cases for possession of a firearm by a
felon, one on a jury verdict of guilty and one on a plea of no
contest. In the first case, the court imposed the middle term of
two years; in the second case the court imposed a term of two
years, doubled under the three strikes law to four years. Daniel
argues that, on the second conviction for possession of a firearm
by a felon, the court should have imposed a term of one-third the
middle term of two years, or eight months, doubled to one year
four months. Daniel suggests the trial court “may have lost track
of the determinate term it had already imposed” on the other
conviction for possession of a firearm by a felon.
The trial court did not err. As stated, the court sentenced
Daniel on his conviction for possession of a firearm by a felon in
the second case to a consecutive term of four years. Section 669,
subdivision (a), requires that, where the court sentences the
defendant to a life sentence (here, 25 years to life for first degree
murder), the consecutive determinate term (here, four years),
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“shall be served first.” (See People v. Rodriguez (2012)
207 Cal.App.4th 204, 211 [“When the defendant is sentenced to
determinate and indeterminate terms, the determinate term is
served first.”]; Craver v. Ducart (C.D.Cal. June 3, 2015,
No. CV 14-5766 R SS) 2015 WL 4040609, p. 3 [under California
law, “determinate terms are served before indeterminate
terms”].) The two-year determinate term the court imposed on
Daniel’s conviction for possession of a firearm by a felon in the
first case was then concurrent to the four-year term Daniel had to
serve in the second case before serving the indeterminate term of
25 years to life. Because the determinate sentences on the two
convictions for possession of a firearm by a felon were concurrent,
the court was correct in not using the formula of one-third the
middle term on the second determinate sentence under section
1170.1, subdivision (a). (See People v. Thompson (2009)
177 Cal.App.4th 1424, 1432 [“‘[b]ecause concurrent terms are not
part of the principal and subordinate term computation under
section 1170.1, subdivision (a), they are imposed at the full base
term, not according to the one-third middle term formula’”],
disapproved on another ground in Johnson v. Department of
Justice (2015) 60 Cal.4th 871, 888; People v. Quintero (2006)
135 Cal.App.4th 1152, 1156, fn. 3 [same].) The trial court
properly imposed a full term on the second conviction for
possession of a firearm by a felon.
C. The Trial Court Should Correct the Minute Order for
the Sentencing Hearing and the Abstract of Judgment
The minute order for the sentencing hearing and the
abstract of judgment indicate the court sentenced Daniel on his
murder conviction under the three strikes law. As stated,
however, the court granted Daniel’s motion under Romero, supra,13 Cal.4th 497 to strike his prior serious or violent felony
11
conviction and imposed the second 25-years-to-life term under
section 12022.53, subdivision (d), not the three strikes law.
Daniel argues, the People concede, and we agree the trial court
should correct these mistakes.
DISPOSITION
The convictions are affirmed. The judgment is reversed
with directions for the trial court to exercise its discretion
whether to impose a lesser firearm enhancement under section
12022.53, to exercise its discretion whether to strike or dismiss
the five-year enhancement under section 667, subdivision (a)(1),
and to correct the sentencing minute order and abstract of
judgment. The trial court is also directed to forward a new
abstract of judgment to the Department of Corrections and
Rehabilitation.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
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