People v. Smith CA4/1

Filed 6/30/23 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, D081410
Plaintiff and Respondent,
v. (Super. Ct. No. SCN399026)
ANDREW THOMAS SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Sim von Kalinowski, Judge. Affirmed.
Theresa Osterman Stevenson, 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,
Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General,
for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Andrew Thomas Smith of first degree murder (Pen.
Code, § 187, subd. (a)),1 and returned a true finding on an allegation that he
personally and intentionally discharged a firearm proximately causing death
(§ 12022.53, subd. (d)), after Smith shot his wife in the neck and killed her.
The trial court sentenced Smith to an indeterminate prison term of 50 years
to life, including a term of 25 years to life for the murder conviction and a
consecutive term of 25 years to life for the firearm enhancement.
In a prior appeal, we affirmed the judgment, in part, but remanded the
matter to allow the trial court to exercise its sentencing discretion to strike
the firearm enhancement and, in its place, impose an uncharged lesser
firearm enhancement pursuant to People v. Tirado (2022) 12 Cal.5th 688(Tirado).2 In this second appeal, Smith contends the trial court abused its
discretion because it declined to strike the firearm enhancement altogether.
Alternatively, he contends the court abused its discretion by failing to strike
the firearm enhancement and, in its place, impose a lesser firearm
enhancement under section 12022.53, subdivisions (b) or (c), or
section 12022.5. We discern no abuse of discretion. Therefore, the judgment
is affirmed.
1 All further statutory references are to the Penal Code.
2 When Smith was first sentenced, there was a split of authority among
the Courts of Appeal regarding whether a trial court may strike a
section 12022.53, subdivision (d) firearm enhancement and impose a lesser
firearm enhancement in its place under section 12022.53, subdivisions (b) or
(c). In Tirado, the Supreme Court determined a court may strike a
section 12022.53, subdivision (d) enhancement and replace it with a lesser
uncharged enhancement under section 12022.53, subdivisions (b) or (c).
(Tirado, supra, 12 Cal.5th at p. 700.)
2
II
BACKGROUND
A. Factual Background
The following summary of facts is taken from the factual background
section of this court’s opinion in the first appeal, as well as the reporter’s
transcripts from Smith’s trial. (People v. Smith (Aug. 3, 2022, D079350)
[nonpub. opn.].)
Smith shot his wife, Jean Smith (hereafter, Jean), in the neck and
killed her in April 2019. At the time of the murder, Smith and Jean had been
married for nearly 20 years. The couple had a tumultuous relationship. Jean
would often drink and verbally abuse Smith. At Smith’s trial, three
neighbors testified they could hear screaming and yelling from the Smith
home multiple times a week. One neighbor testified that Jean hurled “verbal
abuse” at Smith, like “you should kill yourself.” Another neighbor testified
she heard Smith yelling and using profanities, but not as often as Jean.
During the trial, multiple videos depicting Jean’s drunken behavior
were played for the jury, including videos in which Jean called Smith “fat,
ugly, and stupid,” and a “baby ass,” among other belittling phrases. The jury
was also shown a video, which depicts Smith calling Jean a “horrible bitch,”
“stupid idiot,” and other disparaging names. In the video, Smith also told
Jean, “Why – why don’t you just shoot yourself in the fucking head?”
Smith testified about the circumstances on the day of Jean’s murder.
He testified he and Jean had a good day together. They even hugged, kissed,
and watched a movie. However, he and Jean both got “quite drunk” as the
day progressed. Around 5:40 p.m., they sat at their respective desks where
Jean watched videos on her computer and Smith played solitaire on his
computer. A fight broke out when Jean asked her adult son to buy more
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alcohol with her credit card. Smith testified he did not want Jean’s son to use
the credit card because Jean’s son was diabetic and he might use it to buy
sugary food. Smith testified he offered to give Jean’s son just enough cash to
buy alcohol. Jean became “furiously angry,” “yelling and screaming” at him
in the “regular” way. Smith testified he stood up from his desk intending to
get cash for Jean’s son. Instead, he took a firearm out of his pocket, turned
towards Jean, and shot her in the neck as she sat facing away from him.
Smith said he “lost [his] temper” and “had enough at that time.”
Smith then called 911 and calmly reported that he had killed his wife.
Smith showed no remorse for the murder; instead, he expressed concern
about spending the rest of his life in jail and never sleeping in his own bed
again. The sheriff’s deputies arrived at the Smith residence to find Jean
slouched over in her chair with blood on her shoulders, still clutching her
computer mouse. Smith was arrested and charged with first degree murder.
After trial, the jury found Smith guilty of deliberate and premeditated
first degree murder and found true an allegation that he personally and
intentionally discharged a firearm and proximately caused his wife’s death.
Thereafter, Smith asked the trial court to reduce the first degree murder
conviction to a voluntary manslaughter conviction or, in the alternative, a
second degree murder conviction. The court denied the motion.
Smith appealed the first degree murder conviction, which this Court
affirmed. (Smith, supra, D079350.) As part of his appeal, Smith asserted he
was entitled to a resentencing hearing so that the trial court may exercise its
informed sentencing discretion to strike the firearm enhancement and, in its
place, impose a lesser uncharged firearm enhancement, in light of Tirado,
supra, 12 Cal.5th 688. We agreed with Smith on this particular issue and
remanded the matter for resentencing purposes only. (Ibid.)
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B. Resentencing Hearing
At the resentencing hearing, Smith urged the trial court to strike the
section 12022.53, subdivision (d) firearm enhancement altogether and to
resentence him based solely on the murder charge. Alternatively, Smith
asked the court to strike the firearm enhancement and, in its place, impose a
lesser uncharged firearm enhancement under section 12022.53,
subdivisions (b) or (c), or section 12022.5. Smith argued the greater
enhancement should be stricken altogether or replaced by a lesser uncharged
enhancement because the murder was connected to his own prior
victimization under section 1385, subdivision (c)(2)(E). He argued he was
living in a “vile environment” due to his wife’s abusive behavior. He also
asserted he posed no danger to the community based on his age, his
background, and the circumstances of the offense. In particular, he noted he
was already 61 years old, he had no prior record, and he was already serving
a substantial 25-year-to-life sentence for the murder charge alone.
The prosecution argued the murder was not related to Smith’s
purported prior victimization, as he claimed, because Smith and Jean had
“mutual” arguments back and forth with one another. The prosecution
further argued Smith posed a threat to the safety of the public and any future
partner should the court strike the enhancement, given that Smith owned
multiple firearms and murdered his intimate partner, Jean.
The trial court declined to strike the section 12022.53, subdivision (d)
firearm enhancement and resentenced Smith to 50 years to life, including a
term of 25 years to life for the murder charge and a consecutive term of 25
years to life for the firearm enhancement. In coming to this finding, the court
considered the nature of the present offense, Smith’s background, and other
individualized considerations. The court noted Smith had no prior criminal
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history and cooperated with the police. However, it found the nature of the
present offense was the extremely violent and serious murder of Smith’s wife.
The court also assessed the relevant mitigating factors set forth in
section 1385, subdivision (c) to determine whether the firearm enhancement
should be stricken. The court found that only one mitigating circumstance
enumerated in section 1385, subdivision (c), might be relevant—Smith’s
claim that the murder was connected to his alleged prior victimization.
(§ 1385, subd. (c)(2)(E).) The court noted Jean was the “primary perpetrator”
of the domestic violence that occurred during the couple’s marriage, but
Smith also participated in the verbally abusive behavior.
The court found that dismissal of the firearm enhancement would
endanger public safety as well. The court noted Smith acted with
premeditation when he shot his wife, as she sat facing away from him,
defenseless. The court noted Smith’s “extreme lack of remorse” after the
murder, including during the 911 call in which “he focused on himself” and
whether he would ever sleep in his bed again. The court also stated Smith
had viable options to get out of his contentious marriage, such as divorce or
separation, and he took none of them. The court stated Smith’s choice to
murder Jean was a “total overreaction” to a fight that was “no different” than
any other fight the couple had on any “other day for many years.” Because
the court found dismissal of the enhancement would endanger public safety,
the court declined to dismiss the enhancement altogether.
The court then assessed whether to strike the section 12022.53,
subdivision (d) firearm enhancement and impose a lesser firearm
enhancement in its place. The court again considered the circumstances of
the present crime and the defendant. As the court explained, the crime
“involved great violence” and “a high degree of callousness.” The court noted
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Smith was “equally verbally abusive” as Jean in “the days leading up to the
shooting,” exhibited a “total lack of emotion and remorse” on the 911 call, and
failed “to render any aid to the victim.” The court found the “great violence”
of the crime, the “execution-style” nature of the shooting, the victim’s
defenselessness during the crime, and the extreme callousness Smith
exhibited after the crime heavily outweighed Smith’s prior clean record and
his status as the secondary verbal abuser. The court determined these
factors called “for the longest punishment available in the Court’s discretion
over any lesser punishment.” Thus, the court declined to strike the greater
enhancement and impose a lesser uncharged enhancement in its place.
Smith appeals the judgment of conviction entered following the
resentencing proceedings.
III
DISCUSSION
Smith contends the trial court abused its discretion in declining to
strike the section 12022.53, subdivision (d) firearm enhancement altogether
or, alternatively, to strike the enhancement and impose a lesser firearm
enhancement under section 12022.53, subdivisions (b) or (c) or under
section 12022.5. Smith argues the court erred in finding that his mitigating
circumstances did not warrant a dismissal or reduction of the enhancement.
Relatedly, Smith argues the court erroneously determined that dismissal of
the firearm enhancement would likely result in a risk to public safety. We
disagree with both of these arguments.
A. Legal Principles
“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
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specified felonies. [Citation.] Section 12022.53, subdivision (a) lists the
felonies to which the section applies. Section 12022.53(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(c) mandates the
imposition of a 20-year enhancement for personal and intentional discharge
of a firearm; and section 12022.53(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.” (Tirado,
supra, 12 Cal.5th at pp. 694–695, fn. omitted.) Section 12022.53,
subdivision (h) provides in part that a 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.” Further, as
Tirado clarified, a court may strike a section 12022.53, subdivision (d)
enhancement found true and impose a lesser uncharged enhancement under
section 12022.53, subdivisions (b) or (c), in its place. (Tirado, at p. 692.)
Section 12022.5 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.”
Whereas section 12022.53 applies only when a defendant has perpetrated a
felony enumerated in section 12022.53, subdivision (a), section 12022.5
applies to “all felonies ....” (People v. Ledesma (1997) 16 Cal.4th 90, 96.)
Section 1385, subdivision (a) states, “[A] judge or magistrate may,
either on motion of the court or upon the application of the prosecuting
attorney, and in furtherance of justice, order an action to be dismissed.” The
phrase, “in the furtherance of justice,” is not defined by statute, but case law
has explained that it requires “consideration both of the constitutional rights
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of the defendant, and the interests of society represented by the People, in
determining whether there should be a dismissal.” (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 530, italics omitted.) Section 1385 applies to
a motion to dismiss “the entire action or, as here, only an enhancement
allegation.” (People v. Bonnetta (2009) 46 Cal.4th 143, 145-146.)
“In determining whether to dismiss a firearm enhancement under
section 12022.5 or 12022.53, a court considers the same factors considered
‘ “when handing down a sentence in the first instance.” ’ ” (Nazir v. Superior
Court (2022) 79 Cal.App.5th 478, 497.) These factors include the general
objectives of sentencing (Cal. Rules of Court, rule 4.410),3 circumstances in
aggravation and mitigation (Rules 4.421, 4.423), and factors affecting
imposition of enhancements (Rule 4.428). The court is deemed to have
considered all relevant sentencing factors set forth in the rules unless the
appellate record affirmatively demonstrates otherwise. (Rule 4.409.)
Additionally, due to recent amendments implemented by Senate Bill
No. 81 (Stats. 2021, ch. 721, § 1), the sentencing court must consider
applicable mitigating circumstances under section 1385, subdivision (c), to
determine whether to strike or reduce the enhancement in the furtherance of
justice. “Proof of the presence of one or more of these circumstances weighs
greatly in favor of dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety. ‘Endanger
public safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious danger to
others.” (§ 1385, subd. (c)(2).) Only one mitigating circumstance is relevant
to this appeal. It requires the court to consider and give great weight to
evidence that “[t]he current offense is connected to prior victimization ....”
3 Subsequent references to Rules are to the California Rules of Court.
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(Id., subd. (c)(2)(E).) “ ‘Prior victimization’ means the [defendant] was a
victim of intimate partner violence ... or the [defendant] has experienced
psychological or physical trauma, including, but not limited to, abuse ....”
(Id., subd. (c)(6)(B).)
We review the trial court’s decision not to strike or reduce a sentence
enhancement under section 1385 for abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 371 (Carmony).) Two guiding principles
govern our review. First, the appellant holds the burden 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.” ’ ” (Id. at pp. 376–377.) Under the highly deferential abuse
of discretion standard of review, we will uphold the decision of the lower
court if there is “a reasonable or even fairly debatable justification under the
law for the court’s decision.” (People v. Parra Martinez (2022) 78 Cal.App.5th
317, 322, citing Gonzales v. Nork (1978) 20 Cal.3d 500, 507.)
B. Application
As noted, Smith contends the trial court abused its discretion in
declining to strike the firearm enhancement altogether; or, alternatively, in
declining to strike the firearm enhancement and, in its place, impose a lesser
one. He asserts the court gave insufficient consideration to the mitigating
circumstances outlined in Rule 4.423(a)(2) and (a)(3), and section 1385,
subdivision (c)(2). In particular, he asserts the following factors weighed in
favor of a lesser firearm enhancement, or no enhancement at all: (1) Jean
was the initiator or aggressor of the incident (Rule 4.423(a)(2)); (2) Smith
10
experienced “prior victimization” from Jean’s physical and verbal abuse
(§ 1385, subd. (c)(2)(E)); (3) Smith committed the murder “because of an
unusual circumstance, such as great provocation, that is unlikely to recur,”
(Rule 4.423(a)(3)); (4) Smith has no prior criminal or violent history;
(5) Smith immediately called 911, assumed responsibility for the offense, and
cooperated with the police; and (6) Smith will be at least 80 years old by the
time he completes his sentence for the murder charge alone.
The record discloses that the court gave ample consideration to these
mitigating circumstances and acted well within its discretion in concluding
that, overall, they did not warrant striking the firearm enhancement due to
the existence of numerous aggravating circumstances. For instance, the
court acknowledged Jean was the “primary verbal abuser” in the couple’s
relationship, but remarked that Smith “had become equally verbally abusive”
towards Jean in the leadup to the murder. The court also noted Smith had
no prior record and cooperated with the police. (Rule 4.423(b)(1), (b)(8).) But,
as the court found, the “great violence” of the “execution-style” shooting, the
defenselessness of the victim, and Smith’s “extreme callousness” weighed
strongly against striking the firearm enhancement. (Rule 4.421(a)(1), (a)(2),
(a)(3).) Thus, the appellate record shows the trial court assessed all the
competing factors and came to a reasoned determination not to strike the
firearm enhancement. Although Smith disagrees with the court’s balance of
the relevant factors, a “ ‘ “decision will not be reversed merely because
reasonable people might disagree.” ’ ” (Carmony, supra, 33 Cal.4th at p. 377,
quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
The appellate record also shows the trial court appropriately assessed
and gave due weight to the pertinent mitigating factors set forth in
section 1385, subdivision (c)(2). Only one mitigating factor, Smith’s alleged
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“prior victimization,” potentially applied to this case. (§ 1385, subd. (c)(2)(E).)
The court found that Jean was the primary perpetrator of domestic abuse,
but also, importantly, that Smith verbally abused Jean as well. Thus, the
court considered and gave weight to this mitigating factor in the exercise of
its sentencing discretion. But it properly declined to strike the enhancement,
given Smith’s joint status as an aggressor and the extraordinarily serious
aggravating circumstances outlined above.
Even if Jean’s murder was related to Smith’s prior victimization, the
existence of a mitigating circumstance in section 1385, subdivision (c)(2) does
not weigh greatly in favor of dismissing an enhancement if “dismissal of the
enhancement would endanger public safety.” (§ 1385, subd. (c)(2).) Here, the
court properly found that striking the enhancement would endanger public
safety. As the court noted during resentencing, the murder was not
“understandable in any sense” because it was prompted by a mere everyday
argument, and it could have been avoided altogether if Smith had simply
separated from his wife. Further, Smith exhibited an “extreme lack of
remorse” during the 911 call. Given the sheer senselessness of Smith’s
violent conduct and his utter lack of remorse after he murdered Jean, the
court properly determined that the dismissal or reduction of the firearm
enhancement would pose a threat to public safety. Thus, Smith’s alleged
prior victimization did not weigh greatly in favor of dismissing the firearm
enhancement.
IV
DISPOSITION
The judgment is affirmed.
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McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
O’ROURKE, J.
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