Error and/or relief
On resentencing under section 1172.75, the court erred in imposing the firearm enhancement on count 2.
First Holding:
In affirming the trial court’s decision to deny the defendant’s request for dismissal of the firearm enhancement attached to count 1, we review the trial court’s sentencing decision at a section 1172.75 resentencing for an abuse of discretion, including a court’s determination of dangerousness. Section 1172.75(d) vests the superior court with broad discretion based on an inherently factual inquiry.
Under an abuse of discretion standard, we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.
A court also abuses its discretion if the decision is made without the sentencing court’s informed discretion or if the court is unaware of the scope of its discretionary powers.
The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.
A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion. We assume the trial court was aware of and followed applicable law.
Authority:
People v. Gonzalez (2024) 103 Cal.App.5th 215, 225
People v. Mendoza (2023) 88 Cal.App.5th 287, 298
People v. Garcia (2024) 101 Cal.App.5th 848, 856–857
People v. Fredrickson (2023) 90 Cal.App.5th 984, 988
People v. Carmony (2004) 33 Cal.4th 367, 376
People v. Coleman (2024) 98 Cal.App.5th 709, 725
People v. Calhoun (1983) 141 Cal.App.3d 117, 126 [a court’s sentencing decision implies requisite subsidiary findings]
Second Holding:
On count 2, the defendant had been convicted of section 246 (shooting at an occupied vehicle), enhanced under section 12022.53(d) for an additional 25 years to life. (In the prior appeal from the conviction, the appellate court struck the enhancements on count 2 under sections 12022.53(b) and (c), because section 246 is not one of the crimes listed in 12022.53(a) that subdivisions (b) and (c) can apply to.) At the 1172.75 resentencing hearing, the court imposed the lesser enhancement on count 2, under section 12022.53(c), for an enhancement of a determinate term of 20 years instead of the indeterminate 25 years to life he was serving under section 12022.53(d).
Because section 246 is not a crime listed under section 12022.53(a) to which subdivisions (b) and (c) can be applied, it was error to reduce the section 12022.53(d) enhancement to 12022.53(c).
While the trial court could dismiss the section 12022.53(d), firearm enhancement as to count 2, it could not impose a lesser enhancement under section 12022.53(c). We vacate the sentence as to count 2 and remand for resentencing as to that count only.
(Gary note: The court did not mention it as an option, but the trial court can dismiss the section 12022.53 (as the appellate court stated) and impose an enhancement on a lesser included enhancement, such as section 12022.5.
(Under People v. McDavid (2024) 15 Cal.5th 1015, the Supreme Court extended its holding of Tirado (which held that a court could exercise its discretion to impose a lesser section 12022.53 enhancement to the one that was found true) to expressly permit striking section 12022.53 and imposing a lesser included, uncharged enhancement authorized elsewhere in the Penal Code, outside section 12022.53. Under McDavid, the court in this case could strike the 12022.53(d) enhancement and impose an enhancement under section 12022.5, for example. In other words, the court is not faced with a choice of it’s either all or nothing.)
Authority:
PEN 12022.53(a)
People v. Tirado (2022) 12 Cal.5th 688, 699, fn. 12
(People v. McDavid (2024) 15 Cal.5th 1015)