People v. See CA5

Filed 6/29/23 P. v. See CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083317
Plaintiff and Respondent,
(Super. Ct. No. VCF342753B)
v.
APFU SEE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T.
Montejano, Judge.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and
Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
SEE CONCURRING OPINION
Defendant and appellant Apfu See was charged with murder (Pen. Code,1 § 187,
subd. (a) [count 1]), attempted murder (§§ 187, subd. (a), 664 [count 2]), shooting at an
occupied motor vehicle (§ 246 [count 3]), and arson (§ 451, subd. (d) [count 4]). The
operative information further alleged: (1) as to count 1, defendant intentionally killed the
victim while defendant was a participant in a criminal street gang and the murder was
carried out to further the activities of the gang (§ 190.2, subd. (a)(22)); (2) as to count 1,
defendant intentionally killed the victim by means of lying in wait (id., subd. (a)(15));
(3) as to counts 1 through 3, defendant personally used a firearm (§ 12022.53, subd. (b)),
personally and intentionally discharged a firearm (id., subd. (c)), and personally and
intentionally discharged a firearm that proximately caused great bodily injury and/or
death (id., subd. (d)); (4) as to counts 2 through 4, defendant committed the offense for
the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22,
subd. (b)); and (5) as to counts 1 through 4, defendant was previously convicted of
assault with a firearm, a serious felony (§ 667, subd. (a)(1)) and a qualifying “strike”
under the Three Strikes law (id., subds. (b)-(i), § 1170.12, subds. (a)-(d)).
Following a bench trial, defendant was found guilty as charged. The trial court
also found true the firearm and prior conviction allegations and found not true the gang
murder and lying-in-wait special circumstance allegations.2 Defendant received 50 years
to life for first degree premeditated murder, plus 25 years to life for intentionally
discharging a firearm that proximately caused death and five years for the prior serious
felony conviction, on count 1; 14 years to life for attempted first degree premeditated
murder, plus 25 years to life for intentionally discharging a firearm that proximately
caused great bodily injury and five years for the prior serious felony conviction, on
1 Unless otherwise indicated, subsequent statutory citations refer to the Penal
Code.
2
The court did not appear to expressly rule on the section 186.22 gang
enhancement allegations, but the parties concede these were found not true.
2.
count 2; and six years, plus five years for the prior serious felony conviction, on count 4.3
He was also ordered to pay various fines and assessments.
On appeal, defendant makes several contentions. First, he “did not knowingly and
intelligently waive his constitutional right to a jury trial . . . .” (Capitalization omitted.)
Second, “the evidence was insufficient to support his conviction for committing arson
. . . .” (Capitalization omitted.) Third, the trial court “abused its discretion in refusing to
strike the firearm enhancement.” Alternatively, a remand for resentencing is necessary
“to permit the court to consider imposing a lesser sentence under section 12022.53,
subdivision (b) or (c) in lieu of the term imposed under subdivision (d).” Fourth, a
remand for resentencing is necessary “so the trial court can exercise its discretion to
strike five-year enhancements for [defendant]’s prior serious felony conviction.”
(Capitalization omitted.) Fifth, a remand for resentencing is necessary as to “the upper
term sentence imposed in count 4” (capitalization omitted) in view of a recent statutory
amendment that “generally limits the trial court’s ability to impose the upper term unless
aggravating circumstances have been stipulated to by the defendant or found true beyond
a reasonable doubt by a jury or by the court in a court trial.” Finally, “the court violated
[defendant’s] due process rights by imposing the [various fines and assessments] without
determining whether he had the present ability to pay these amounts.”
We conclude: (1) defendant knowingly and intelligently waived his constitutional
right to a jury trial; (2) substantial evidence supported the arson conviction; (3) with
respect to the upper term of imprisonment imposed on count 4, a remand for resentencing
is unnecessary; and (4) defendant forfeits his other claims of error on appeal.
3Enhancements for personal firearm use and personal and intentional firearm
discharge were stayed as to counts 1 and 2.
Defendant also received 14 years, plus 10 years for personally using a firearm, on
count 3. Execution of punishment on this count was stayed pursuant to section 654.
3.
STATEMENT OF FACTS
On October 17, 2016, at around 12:10 a.m., gas station clerk Lloyd S. was near the
end of his work shift when he “heard a loud bang.” He then “heard four more.” Lloyd
called the Visalia Police Department. Officers arrived “[v]ery quickly” and encountered
a vehicle next to a gas pump. Larry T., the driver, had been shot in the leg. He was
subsequently transported to the hospital and ultimately survived. On the other hand,
Paul R., the front seat passenger, sustained multiple gunshot wounds and died at the
scene. Near the vehicle, officers recovered “seven spent 9-millimeter shell casings” and
several cigarette butts. Surveillance footage recorded prior to and during the shooting
showed (1) defendant “standing in front of the store smoking a cigarette”; (2) Larry and
Paul arriving; (3) Paul leaving the vehicle “for a short period of time”; (4) Paul returning
to the vehicle; (5) defendant approaching the vehicle; and (6) defendant drawing a
firearm from his waistband and shooting at the vehicle. Later that morning, the
California Highway Patrol came across a burning minivan near some almond fields in
Tulare. The vehicle belonged to Nora H., who had lent it to her daughter. At the time,
Nora’s daughter was dating Edgar Cardenas.
Defendant was arrested and a buccal swab was administered. Testing revealed the
swab and one of the cigarette butts retrieved from the gas station shared the same DNA
profile. Officers searched defendant’s home and found a gas can in the master bedroom.
They also combed through defendant’s social media account and found messages
between defendant and Michael See4 on October 17, 2016, at 5:22 p.m. In those
messages, defendant “ask[ed] Michael to go to his house and pick up his thang” and “to
get the box of shells that are in his jacket.”
4 Hereafter, to avoid confusion, we refer to Michael See either by his given name
or by his full name.
4.
Sergeant Swarthout of the Visalia Police Department interviewed Michael, who
admitted he was at the gas station at the time of the shooting. According to Michael, he
was a passenger in a minivan and “was on his phone” “in the back seat” “when he heard
some shots being fired.” The shooter was an Asian male.5 Michael was present when the
minivan was set on fire. Thereafter, Keith Keovilay came by to give him and defendant a
ride. Michael identified Cardenas as the individual “responsible for burning . . . the
van.”6 Next, Swarthout interviewed Keovilay, who confirmed he picked up defendant
and Michael at the scene of the vehicle fire.7 Lastly, Swarthout interviewed Cardenas,
who admitted he was at the gas station at the time of the shooting. According to
Cardenas, he drove the van and defendant was the shooter.8
Cardenas was charged with arson (§ 451, subd. (d) [count 5]) and accessory after
the fact (§ 32 [count 6]). The information further alleged: (1) as to count 5, he
committed the offense for the benefit of, at the direction of, or in association with a
criminal street gang (§ 186.22, subd. (b)(1)(B)); and (2) as to count 6, he was armed with
a handgun (§ 12022, subd. (a)(1)). Cardenas pled guilty as charged and admitted the
gang allegation.
5 The record shows defendant is of Thai descent.
6 At trial, Michael testified he had been intoxicated on October 17, 2016, and
could not recall what had transpired that day. He denied being at the gas station, being in
the van, knowing defendant, and getting a ride from Keovilay.
7 At trial, Keovilay testified he could not recall going somewhere on October 17,
2016, to pick up Michael.
8At trial, Cardenas testified he had been intoxicated on October 17, 2016. He
remembered driving the van, pumping gas, hearing gunshots, and “driving home” but
otherwise “[could]n’t remember that night.” Cardenas denied knowing defendant. He
admitted Michael—a “childhood friend”—was with him in the van.
5.
DISCUSSION
I. Defendant knowingly and intelligently waived his constitutional right
to a jury trial.
a. Background
At a July 13, 2017 trial setting conference, defense counsel stated, “[M]y client’s
willing to waive a jury on this case and argue this case on a court trial . . . .” The
prosecutor replied, “Your Honor, People are agreeable to that.” The following colloquy
transpired:
“[PROSECUTOR]: Your Honor, would the court get a personal
waiver of the jury trial from the defendant, please?
“THE COURT: Certainly. [¶] Mr. See, sir, excuse me, I know
you’re talking to [defense counsel]. [¶] Sir, you are entitled to have a jury
trial or a court trial. Are you willing to waive your right to have a jury
trial?
“THE DEFENDANT: Yes.
“THE COURT: Okay. Do you have any questions about that, like,
would you like to discuss further with [defense counsel]?
“[DEFENSE COUNSEL]: Your Honor, I met with him last night,
and discussed at length and I answered all of his questions last night, and he
understands what we’re doing here.
“THE COURT: Okay. So you don’t have any further questions for
[defense counsel], Mr. See?
“THE DEFENDANT: No, ma’am.”
b. Analysis
“A criminal defendant has the constitutional right to a jury trial. [Citations.] The
defendant may waive his constitutional right to a jury trial, provided the waiver is
‘ “knowing and intelligent, that is, ‘ “ ‘made with a full awareness both of the nature of
the right being abandoned and the consequences of the decision to abandon it,’ ” ’ as well
as voluntary ‘ “ ‘in the sense that it was the product of a free and deliberate choice rather
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than intimidation, coercion, or deception.’ ” ’ ” [Citations.] “[W]hether or not there is an
intelligent, competent, self-protecting waiver of jury trial by an accused must depend
upon the unique circumstances of each case.” ’ [Citation.]” (People v. Roles (2020) 44
Cal.App.5th 935, 949-950 (Roles).)
On appeal, defendant contends the trial court “did not properly advise [him] of his
constitutional right to a jury trial,” he “did not knowingly and intelligently waive his
constitutional right to a jury trial on the charged offenses,” and “the structural error is
reversible per se.” He cites People v. Sivongxxay (2017) 3 Cal.5th 151 (Sivongxxay) as
supporting authority. In that case, the California Supreme Court offered “some general
guidance to help ensure that a defendant’s jury trial waiver is knowing and intelligent,
and to facilitate the resolution of a challenge to a jury waiver on appeal.” (Id. at p. 169.)
The high court proposed:
“Going forward, we recommend that trial courts advise a defendant of the
basic mechanics of a jury trial in a waiver colloquy, including but not
necessarily limited to the facts that (1) a jury is made up of 12 members of
the community; (2) a defendant through his or her counsel may participate
in jury selection; (3) all 12 jurors must unanimously agree in order to
render a verdict; and (4) if a defendant waives the right to a jury trial, a
judge alone will decide his or her guilt or innocence. We also recommend
that the trial judge take additional steps as appropriate to ensure, on the
record, that the defendant comprehends what the jury trial right entails. A
trial judge may do so in any number of ways—among them, by asking
whether the defendant had an adequate opportunity to discuss the decision
with his or her attorney, by asking whether counsel explained to the
defendant the fundamental differences between a jury trial and a bench
trial, or by asking the defendant directly if he or she understands or has any
questions about the right being waived. Ultimately, a court must consider
the defendant’s individual circumstances and exercise judgment in deciding
how best to ensure that a particular defendant who purports to waive a jury
trial does so knowingly and intelligently.” (Sivongxxay, supra, 3 Cal.5th at
pp. 169-170.)
7.
The Supreme Court emphasized its guidance is “advisory” and “not intended to limit trial
courts to a narrow or rigid colloquy.” (Sivongxxay, supra, 3 Cal.5th at p. 170; accord,
Roles, supra, 44 Cal.App.5th at p. 950.)
In the instant case, there was no advisement akin to the one endorsed in
Sivongxxay. Nevertheless, a “departure from [Sivongxxay’s] recommended colloquy . . .
will not necessarily render an ensuing jury waiver invalid.” (Sivongxxay, supra, 3
Cal.5th at p. 170.) “The test of a valid waiver turns on whether the record affirmatively
shows that the waiver is voluntary and intelligent under the totality of the circumstances.”
(Roles, supra, 44 Cal.App.5th at p. 950; see Sivongxxay, supra, at p. 170 [“ ‘ “Matters of
reality, and not mere ritual, should be controlling.” ’ ”].) Here, defendant was
represented by an attorney. (See Sivongxxay, supra, at p. 167; People v. Langdon (1959)
52 Cal.2d 425, 432 (Langdon); cf. People v. Daniels (2017) 3 Cal.5th 961, 996 (lead opn.
of Cuéllar, J.) [the appellant “without the benefit of counsel when he proffered his
waiver”].) At the trial setting conference, defense counsel “initiated the request for a
court trial.” (Sivongxxay, supra, at p. 167; cf. People v. Daniels, supra, at p. 993 (lead
opn. of Cuéllar, J.) [the appellant “never explicitly requested or referenced a court trial”
until judge “broached the issue”].) The court informed defendant he was “entitled to
have a jury trial or a court trial” and asked if he was “willing to waive [his] right to have
a jury trial.” Defendant said, “Yes.” (See Langdon, supra, at p. 431 [“The Court: Mr.
Langdon, do you waive your right to a trial by jury, and want to be tried by the judge
without a jury? [¶] The Defendant Langdon: Yes, providing it stays in your court, your
Honor.”]; People v. Evanson (1968) 265 Cal.App.2d 698, 700 [“[The] appellant’s
response was verbal and explicit: ‘Yes sir’ to court’s question, ‘Is [waiver] agreeable
with you, Mr. Evanson?’ ”].) When the court asked defendant if he “ha[d] any questions
about that” or “would . . . like to discuss further with [defense counsel],” defense counsel
interjected, asserting he “met with [defendant] last night,” “discussed [the matter] at
length,” and “answered all of his questions last night” and defendant “understands what
8.
we’re doing here.” (See People v. Castaneda (1975) 52 Cal.App.3d 334, 345 [“[The
a]ppellant’s counsel told the judge that he had spent between an hour and two hours
discussing the matter with [the] appellant and that they had agreed to waive the jury
trial.”]; cf. People v. Blancett (2017) 15 Cal.App.5th 1200, 1203, 1206 [defense counsel
immediately requested court trial after appointment and there was no record of any
discussion between him and [the] appellant prior to the waiver].) When the court asked
defendant if he “ha[d] any further questions for [defense counsel],” defendant responded,
“No, ma’am.” (See People v. Diaz (1992) 3 Cal.4th 495, 571 [“[W]hen the court asked
whether he had any questions regarding the waiver, or wished to discuss it further with
counsel, [the] defendant answered in the negative.”].)
Defendant does not point to “anything in the record to show . . . he . . . was misled
as to the result which might occur from his waiving a jury trial.” (Langdon, supra, 52
Cal.2d at p. 432.) Furthermore, he “had prior experience with the criminal justice system
. . . .” (Sivongxxay, supra, 3 Cal.5th at p. 167.) As mentioned, the court found true the
allegation defendant was previously convicted of assault with a firearm. The record also
demonstrates defendant was convicted of misdemeanor receipt of a stolen vehicle in 2015
and misdemeanor battery in 2018 and sustained multiple juvenile adjudications since
2005. (See Langdon, supra, at p. 432 [“[The appellant] not only was represented by
counsel, but according to the record had also been before the criminal court[] on at least
three previous occasions.”]; cf. People v. Jones (2018) 26 Cal.App.5th 420, 437 [“Neither
the information nor the probation report reveals a prior criminal charge.”].) Thus, “we
conclude the totality of the circumstances demonstrates that defendant entered a knowing
and intelligent jury trial waiver.” (Roles, supra, 44 Cal.App.5th at p. 950.)
II. Substantial evidence supported defendant’s arson conviction.
a. Standard of review
“To determine the sufficiency of the evidence to support a conviction, we review
the entire record in the light most favorable to the prosecution to determine whether it
9.
contains [substantial] evidence that is reasonable, credible and of solid value, from which
a rational trier of fact could find that the elements of the crime were established beyond a
reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We “presume in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be
convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether
‘ “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” [Citation.]’ ” (People v. Tripp, supra, at p. 955, italics omitted.)
“This standard of review . . . applies to circumstantial evidence. [Citation.] If the
circumstances, plus all the logical inferences the [trier of fact] might have drawn from
them, reasonably justify the [trier of fact]’s findings, our opinion that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a reversal of
the judgment.” (Ibid.)
“Before the judgment of the trial court can be set aside for insufficiency of the
evidence to support the verdict of the [trier of fact], it must clearly appear that upon no
hypothesis what[so]ever is there sufficient substantial evidence to support it.” (People v.
Redmond, supra, 71 Cal.2d at p. 755.) “ ‘Conflicts and even testimony which is subject
to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.’ ” (People
v. Lee (2011) 51 Cal.4th 620, 632.)
b. Analysis
“A person is guilty of arson when he or she willfully and maliciously sets fire to or
burns or causes to be burned or who aids, counsels, or procures the burning of, any
structure, forest land, or property.” (§ 451; see § 31 [“All persons concerned in the
10.
commission of a crime, . . . whether they directly commit the act constituting the offense,
or aid and abet in its commission, . . . are principals in any crime so committed.”].)
On appeal, defendant “does not contest the fact the minivan had been burned” and
“the record contains ‘evidence that the minivan fire was of incendiary origin . . . .’ ” He
contends “there was insufficient evidence to establish [arson] on the theor[y] that [he]
was a direct perpetrator of this offense or aided and abetted this offense . . . .”
Specifically, he insists “there is ‘no evidence . . . that he had any intent of aiding or
encouraging his confederates lighting the minivan.’ ”
“ ‘[A] person aids and abets the commission of a crime when he or she, acting
with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or
purpose of committing, encouraging, or facilitating the commission of the offense, (3) by
act or advice aids, promotes, encourages or instigates, the commission of the crime.’
[Citation.]” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-296.) “[P]roof of
aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s
actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor’s mens
rea—knowledge of the direct perpetrator’s unlawful intent and an intent to assist in
achieving those unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the
aider and abettor that in fact assists the achievement of the crime.” (People v. Perez
(2005) 35 Cal.4th 1219, 1225.) “The ‘act’ required for aiding and abetting liability need
not be a substantial factor in the offense. ‘ “Liability attaches to anyone ‘concerned,’
however slight such concern may be, for the law establishes no degree of the concern
required to fix liability as a principal.” [Citation.]’ [Citation.]” (People v. Swanson-
Birabent (2003) 114 Cal.App.4th 733, 743.) “Intent is rarely susceptible of direct proof
and usually must be inferred from the facts and circumstances surrounding the offense.”
(People v. Pre (2004) 117 Cal.App.4th 413, 420.) “ ‘Among the factors which may be
considered in making the determination of aiding and abetting are: presence at the scene
of the crime, companionship, and conduct before and after the offense.’ [Citation.]”
11.
(People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) “ ‘Whether defendant aided and
abetted the crime is a question of fact, and on appeal all conflicts in the evidence and
reasonable inference must be resolved in favor of the judgment.’ [Citation.]” (People v.
Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).)
The record—viewed in the light most favorable to the prosecution—demonstrates
Cardenas drove defendant and Michael to the gas station, where defendant shot the
victims. Thereafter, the trio traveled a significant distance to a secluded area in Tulare,
where Cardenas set the minivan on fire. (See People v. Green (1983) 146 Cal.App.3d
369, 377 (Green) [“presence in the vicinity at the time of the fire” a factor relied upon by
courts in affirming arson convictions]); see also Campbell, supra, 25 Cal.App.4th at
p. 409 [“[The defendant] did not independently happen by the scene of the crime.”].)9
Given defendant had committed murder and attempted murder, his “possible motive for
arson was readily apparent: to spoliate [incriminating evidence].” (People v. Booker
(2011) 51 Cal.4th 141, 177; see Green, supra, at p. 377 [motive a factor relied upon by
courts in affirming arson convictions]). While the vehicle burned, defendant and Michael
left the scene with Keovilay. (See In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095
[“[F]light is one of the factors which is relevant in determining consciousness of guilt.”].)
Later, after defendant was arrested, law enforcement searched his residence and found a
gas can in the master bedroom. (See Green, supra, at p. 377 [“possession of
inflammatory materials” a factor relied upon by courts in affirming arson convictions].)
Under the totality of the circumstances, a reasonable factfinder could conclude defendant
aided and abetted arson and “was not simply an innocent, passive, and unwitting
bystander.” (Campbell, supra, at p. 410; see People v. Bloom (1989) 48 Cal.3d 1194,
9 Defendant claims “the recanted testimony of [his] alleged accomplice, co-
defendant Cardenas that [he] was at the scene is of no import” because “that testimony is
[not] corroborated by other evidence.” However, both Michael and Keovilay confirmed
defendant’s presence to Swarthout.
12.
1208 [“[C]ircumstantial evidence is as sufficient as direct evidence to support a
conviction.”].)
III. Defendant’s remaining claims are either forfeited or meritless.
a. Background
At the April 16, 2019 sentencing hearing, the trial court pronounced:
“The court finds that in aggravation, that the defendant induced others to
participate in the commission of the crime or occupied a position of
leadership, of dominance of other participants in the commission.
“Additionally, the defendant was engaged in violent conduct which
indicates a serious danger to society and also that defendant’s prior
convictions as an adult were numerous. [¶] . . . [¶]
“In Count 4, the defendant is committed to state prison for the
aggravated term of six years pursuant to [section] 1170.12[, subdivision
](c)(1) plus an additional and consecutive five years pursuant to [section]
667[, subdivision ](a)(1).
“The court is gonna comment right now that the court does have the
discretion to not impose the [section] 667[, subdivision ](a)(1)
enhancement. The court finds that based on the facts of this case that it’s
important to impose those enhancements, and so the court will do so. That
is for a total of 11 years with credit for 818 days spent in custody awaiting
sentence, zero conduct credits, for a total of 818 days. [¶] . . . [¶]
“In Count 1, the defendant is committed to state prison for the term
of 50-years-to-life pursuant to [section] 1170.12[, subdivision ](c)(1) plus
an additional and consecutive 25-years-to-life pursuant to [section]
12022.53[, subdivision ](d) plus an additional and consecutive five years
pursuant to [section] 667[, subdivision ](a)(1) with zero presentence credits.
This term is to run consecutive to Count 4.
“At this time, the court will also comment that recent change in law
allows the court to strike the sentencing enhancements for firearms. The
court does not think that’s appropriate in this case, and so the court is, in
fact, going to be sentencing as I just did the defendant to the firearm
enhancements.
“In Count 2, the defendant’s committed to state prison for the term
of 14-years-to-life pursuant to [section] 1170.12[, subdivision ](c)(1) plus
13.
an additional and consecutive 25-years-to-life pursuant to [section]
12022.53[, subdivision ](d) plus an additional and consecutive five years
pursuant to [section] 667[, subdivision ](a)(1) with zero presentence credits,
and that term is to run consecutive to Count 4.”
The court ordered defendant to pay a $10,000 restitution fine (§ 1202.4), a $10,000 parole
revocation restitution fine (§ 1202.45), $4,101.97 in victim restitution with interest to
accrue at a rate of 10 percent per annum (§ 1202.4, subd. (f)), a $160 court operations
assessment (§ 1465.8), and a $120 criminal conviction assessment for court facilities
(Gov. Code, § 70373). Defendant did not object.
b. Analysis
i. Firearm enhancements
“Section 12022.53 was first enacted in 1997 as part of the state’s ‘Use a Gun and
You’re Done’ law. [Citation.] The statute sets out ‘sentence enhancements for personal
use or discharge of a firearm in the commission’ of specific felonies. [Citation.] Section
12022.53, subdivision (a) lists the felonies to which the section applies. Section
12022.53[, subdivision ](b) mandates the imposition of a 10-year enhancement for
personal use of a firearm in the commission of one of those felonies; section 12022.53[,
subdivision ](c) mandates the imposition of a 20-year enhancement for personal and
intentional discharge of a firearm; and section 12022.53[, subdivision ](d) provides for a
25-year-to-life enhancement for personal and intentional discharge of a firearm causing
great bodily injury or death to a person other than an accomplice. The legislative intent
behind section 12022.53 is to impose ‘ “substantially longer prison sentences . . . on
felons who use firearms in the commission of their crimes.” ’ [Citation.]” (People v.
Tirado (2022) 12 Cal.5th 688, 694-695, fns. & italics omitted (Tirado II).)
“Before January 1, 2018, section 12022.53 prohibited courts from striking its
enhancements. Former subdivision (h) of section 12022.53 provided: ‘Notwithstanding
Section 1385 or any other provision of law, the court shall not strike an allegation under
this section or a finding bringing a person within the provisions of this section.’
14.
[Citation.] Thus, if a section 12022.53 enhancement was alleged and found true, its
imposition was mandatory. [Citations.] In 2017, the Legislature enacted Senate Bill
No. 620 (2017-2018 Reg. Sess.) . . . , amending section 12022.52[, subdivision ](h) to
remove this prohibition. [Citation.]” (Tirado II, supra, 12 Cal.5th at pp. 695-696.)
Section 12022.53, subdivision (h) now provides: “The court may, in the interest of
justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.” (See § 1385, subd. (a)
[“The judge or magistrate may, . . . in the furtherance of justice, order an action to be
dismissed.”]; Tirado II, supra, at p. 696 [§ 1385 “construed to permit the dismissal of
parts of an action” “including a weapon or firearm use enhancement”].)
On April 11, 2019, Division Five of the First Appellate District filed its opinion in
People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison). In that case, the appellate
court held, among other things:
“Courts now may ‘strike or dismiss’ an enhancement under section
12022.53, subdivision (d) in the interests of justice under section 1385. In a
case where the jury had also returned true findings of the lesser
enhancements under section 12022.53, subdivisions (b) and (c), the striking
of an enhancement under section 12022.53, subdivision (d) would leave
intact the remaining findings, and an enhancement under the greatest of
those provisions would be mandatory unless those findings were also
stricken in the interests of justice.” (Morrison, supra, 34 Cal.App.5th at
p. 222; see Tirado II, supra, 12 Cal.5th at p. 697 [“Morrison correctly
described the scope of a trial court’s sentencing discretion under section
12022.53.”].)
Here, by the time of the April 16, 2019 sentencing hearing, Senate Bill No. 620
(2017-2018 Reg. Sess.) and Morrison were already in effect. At said hearing, the court
noted a “recent change in law allows the court to strike the sentencing enhancements for
firearms” but “d[id] not think that’s appropriate in this case” in view of the circumstances
in aggravation. Defense counsel did not object or otherwise raise a claim of error below.
As a result, defendant forfeits claims raised for the first time on appeal. (See People v.
15.
Gonzalez (2003) 31 Cal.4th 745, 751 [“A party in a criminal case may not, on appeal,
raise ‘claims involving the trial court’s failure to properly make or articulate its
discretionary sentencing choices’ if the party did not object to the sentence at trial.”].)10
ii. Prior serious felony enhancements
“On September 30, 2018, the Governor signed Senate Bill [No.] 1393 [2017-2018
Reg. Sess.] which, effective January 1, 2019, amends sections 667[, subdivision ](a) and
1385[, subdivision ](b) to allow a court to exercise its discretion to strike or dismiss a
prior serious felony conviction for sentencing purposes.” (People v. Garcia (2018) 28
Cal.App.5th 961, 971, citing Stats. 2018, ch. 1013, §§ 1-2.)
Here, by the time of the April 16, 2019 sentencing hearing, Senate Bill No. 1393
(2017-2018 Reg. Sess.) was already in effect. At said hearing, the court recognized it
“ha[d] the discretion to not impose the [section] 667[, subdivision ](a)(1) enhancement”
but elected “to impose those enhancements” “based on the facts of th[e] case.” Defense
counsel did not object or otherwise raise a claim of error below. As a result, defendant
forfeits claims raised for the first time on appeal. (See People v. Gonzalez, supra, 31
Cal.4th at p. 751.)
iii. Selection of the upper term of imprisonment on count 4
“Section 1170, subdivision (b) governs imposition of a judgment of imprisonment
when a statute specifies three possible terms. Prior to 2007, section 1170, subdivision (b)
10 Defendant states the “Courts of Appeal were split on the question of whether a
trial court could strike the section 12022.53, subdivision (d) enhancement and, in its
place, impose a lesser enhancement under section 12022.53, subdivision (b) or (c).” He
cites People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado I), in which our court disagreed
with Morrison. However, our opinion in Tirado I was filed August 12, 2019, nearly four
months after defendant’s sentencing hearing. Since Morrison was the controlling
authority at the time of the hearing, an objection “would [not] have been futile or wholly
unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th
228, 237.) We also point out the California Supreme Court ultimately reversed Tirado I
and upheld Morrison. (See generally Tirado II, supra, 12 Cal.5th 688.)
16.
set the middle term as the presumptive term, but authorized the trial court to impose the
upper term if it found circumstances in aggravation. [Citation.] The trial court was
required to set forth on the record the facts supporting imposition of the upper term, and
those facts were required to be established by a preponderance of the evidence.
[Citations.] However, in 2007, the United States Supreme Court [in Cunningham v.
California (2007) 549 U.S. 270] determined this sentencing scheme was unconstitutional
because, ‘under the Sixth Amendment, any fact [other than a prior conviction] that
exposes a defendant to a greater potential sentence must be found by a jury, not a judge,
and established beyond a reasonable doubt, not merely by a preponderance of the
evidence.’ [Citations.]” (People v. Sallee (2023) 88 Cal.App.5th 330, 336-337 (Sallee).)
“In response to Cunningham, the California Legislature amended section 1170,
subdivision (b) to eliminate the presumption for the middle term and to instead provide
that ‘the choice of the appropriate term shall rest within the sound discretion of the court.’
[Citation.] The intent of this urgency legislation was to ‘maintain stability in California’s
criminal justice system while the criminal justice and sentencing structures in California
sentencing [were] being reviewed.’ [Citation.] This statutory language providing trial
courts broad discretion to choose within the sentencing triad remained intact until
January 1, 2022. [Citations.]” (Sallee, supra, 88 Cal.App.5th at p. 337.)
“Effective January 1, 2022, Senate Bill No. 567 [2021-2022 Reg. Sess.] amended
section 1170, subdivision (b), to provide: ‘When a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2).’ [Citation.] Subdivision (b)(2) in turn provides,
‘The court may impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true beyond a reasonable
17.
doubt at trial by the jury or by the judge in a court trial. . . .’ Subdivision (b)(3) creates
an exception to this requirement: ‘Notwithstanding paragraphs (1) and (2), the court may
consider the defendant’s prior convictions in determining sentencing based on a certified
record of conviction without submitting the prior convictions to a jury.’ ” (Sallee, supra,
88 Cal.App.5th at p. 337.)
On appeal, defendant contends “[t]hese amendments apply retroactively” “because
his conviction was not final when this legislation took effect.” The Attorney General
concedes “[Senate Bill No.] 567’s amendments to section 1170, subdivision (b), apply
retroactively to [defendant.]” (Boldface omitted.) We accept this concession. (See In re
Estrada (1965) 63 Cal.2d 740, 744-746 [a defendant whose case is not yet final is entitled
to the ameliorating benefits of newly enacted sentencing statutes absent a contrary
indication from the Legislature].)
The Attorney General maintains “remand is not necessary” because imposition of
the upper term on count 4 “complies with section 1170, subdivision (b), as amended by
[Senate Bill No.] 567.” We agree. Pursuant to section 1170, subdivision (b)(2), the
upper term of imprisonment may be imposed where the facts underlying the
circumstances in aggravation have been found true beyond a reasonable doubt by the
judge in a court trial. As noted, defendant waived his right to a jury trial and proceeded
with a court trial. The court—sitting as the trier of fact—found him guilty of first degree
premeditated murder (count 1), attempted first degree premeditated murder (count 2),
shooting at an occupied motor vehicle (count 3), and arson (count 4). It also found true
the allegations defendant was previously convicted of a serious felony (assault with a
firearm) and—in connection with counts 1 through 3—he personally used a firearm,
personally and intentionally discharged a firearm, and personally and intentionally
discharged a firearm that proximately caused great bodily injury and/or death. At the
sentencing hearing, the court cited the following circumstances in aggravation to justify
the imposition of the “aggravated” upper term on count 4: (1) “defendant induced others
18.
to participate in the commission of the crime or occupied a position of leadership, of
dominance of other participants in the commission” (accord, Cal. Rules of Court,
rule 4.421(a)(4)); (2) “defendant was engaged in violent conduct which indicates a
serious danger to society” (accord, id., rule 4.421(b)(1)); and (3) “defendant’s prior
convictions as an adult were numerous” (accord, id., rule 4.421(b)(2)). In addition,
defendant’s criminal history was established by certified records of his prior convictions
and juvenile adjudications.11
iv. Fines and assessments
On appeal, defendant argues “the court violated his due process rights by imposing
the restitution and parole revocation fines as well [as] the court operations fee and
criminal conviction assessment without determining whether he had the present ability to
pay these amounts.” He cites People v. Dueñas (2019) 30 Cal.App.5th 1157, in which
Division Seven of the Second Appellate District held that “due process of law requires
the trial court to conduct an ability to pay hearing and ascertain a defendant’s present
11Defendant also mentions Assembly Bill No. 124 (2021-2022 Reg. Sess.) and
Senate Bill No. 81 (2021-2022 Reg. Sess.).
Assembly Bill No. 124 (2021-2022 Reg. Sess.), which became effective on
January 1, 2022, “made a low-term sentence presumptively appropriate under specified
circumstances . . . .” (People v. Gerson (2022) 80 Cal.App.5th 1067, 1095.) In his brief,
defendant fails to explain the relevance of this bill to the instant case. “It is not this
court’s role to connect the dots.” (Perry v. City of San Diego (2021) 65 Cal.App.5th 172,
188, fn. 8.) As we will not develop defendant’s claim for him, we decline to address it.
(See Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
“In 2021, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) . . . ,
which amended section 1385 to specify factors that the trial court must consider when
deciding whether to strike enhancements from a defendant’s sentence in the interest of
justice.” (People v. Sek (2022) 74 Cal.App.5th 657, 674.) The amended law “ ‘shall
apply to sentencings occurring after the effective date of’ Senate Bill No. 81” (ibid.), i.e.,
January 1, 2022 (ibid.). Because we do not find resentencing necessary, Senate Bill
No. 81 (2021-2022 Reg. Sess.) does not currently apply.
19.
ability to pay” before it imposes any fines or assessments. (Id. at p. 1164.)12 The
decision in People v. Dueñas was filed January 8, 2019, more than three months before
defendant’s sentencing hearing. An objection “would [not] have been futile or wholly
unsupported by substantive law then in existence.” (People v. Welch, supra, 5 Cal.4th at
p. 237.) Yet, defense counsel did not object or otherwise raise a claim of error below. As
a result, defendant forfeits claims raised for the first time on appeal. (See People v.
Aguilar (2015) 60 Cal.4th 862, 864 [“[The] defendant’s failure to challenge the fees in
the trial court precludes him from doing so on appeal.”].)
DISPOSITION
The judgment is affirmed.
DETJEN, Acting P. J.
I CONCUR:
SMITH, J.
12Presently pending before our Supreme Court is People v. Kopp (2019) 38
Cal.App.5th 47, review granted November 13, 2019, S257844, in which review is limited
to (1) whether a court must consider a defendant’s ability to pay before imposing or
executing fines, fees, and assessments, and (2) if so, which party bears the burden of
proof regarding a defendant’s inability to pay.
20.
MEEHAN, J., Concurring:
I concur with the result reached by the majority on each issue, and I join their
reasoning in every regard except as it pertains to retroactive application of Penal Code
section 1170, subdivision (b),1 as it was amended by Senate Bill No. 567 (2021–2022
Reg. Sess.) (Senate Bill 567). I respectfully concur separately because, while I agree
with the majority that retroactive application of amended section 1170 does not require
resentencing in this case, I would reach that conclusion by applying the clear indication
test articulated in People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez). I join
the majority opinion and its result except for the portion of part III.b.iii. of the
Discussion, where I believe Gutierrez should be applied.
As the majority explains in part III.b.iii. of the Discussion, ante, the aggravating
circumstances the trial court relied on to impose the upper term for count 4 were properly
considered under amended section 1170, subdivision (b)(2), and defendant’s criminal
history was established by certified records as required under section 1170,
subdivision (b)(3). As a result, the upper term sentence comports with state law as
amended under Senate Bill 567, and it presents no jury trial issue under the Sixth
Amendment. However, for the reasons set out in People v. Falcon (2023) __
Cal.App.5th __ (2023 Cal.App. Lexis 480), resentencing is nonetheless required unless
the record clearly indicates the trial court would have imposed the upper term sentence
had it been aware of its narrowed discretion to do so under section 1170,
subdivision (b)(1) and (b)(2). (Id. at p. __ [2023 Cal.App. Lexis 480, *8–9, 77–78] [to
conclude resentencing is unnecessary upon retroactive application of Sen. Bill 567,
Gutierrez’s clear indication test must be satisfied]; accord, People v. Lewis (2023) 88
Cal.App.5th 1125, 1137–1138, review granted May 17, 2023, S279147.)
1 Further statutory references are to the Penal Code.
The record here contains such a clear indication. The trial court repeatedly
emphasized the facts of the case both to impose the upper term and in declining to strike
any enhancements, plainly indicating it ascribed heavy aggravating weight to defendant’s
conduct in committing the offenses. Defendant’s conduct was the basis for two of the
three aggravating circumstances relied on to impose the upper term sentence. Given the
weight afforded those circumstances, in addition to defendant’s prior convictions, which
the court also weighed in aggravation, the imposition of consecutive sentences, and the
refusal to strike any enhancements, the record clearly indicates the trial court would have
imposed the upper term even if it had been aware of its narrowed discretion to do so
under the presumption favoring a middle term maximum sentence.
MEEHAN, J.
2.