Opinion
G057141
10-17-2022
THE PEOPLE, Plaintiff and Respondent, v. JOSE RAFAEL ALONZO, Defendant and Appellant.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Charles J. Sarosy, Wyatt E. Bloomfield and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 13NF1047 John Conley, Judge. Conditionally reversed and remanded with directions.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Charles J. Sarosy, Wyatt E. Bloomfield and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
A jury convicted defendant Jose Rafael Alonzo of one count of murder (Pen. Code, § 187, subd. (a); count 1) and one count of street terrorism (§ 186.22, subd. (a); count 2). The jury also found true allegations that count 1 was committed for the benefit of or to promote a criminal street gang. (§§ 190.2, subd. (a)(22), 186.22, subd. (b).) The jury further found true allegations that defendant personally used and discharged a firearm in the commission of count 1. (§§ 12022.5, subd. (a), 12022.53, subd. (d).)
All further statutory references are to the Penal Code unless otherwise stated.
The court sentenced defendant to 50 years to life in state prison as follows: (1) 25 years to life on count 1; (2) a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d) on count 1; (3) four years for the firearm enhancement under section 12022.5, subdivision (a) on count 1, which was stayed pursuant to section 654; (4) 10 years for the gang enhancement on count 1, which was stayed pursuant to section 654; and (5) 2 years on count 2, which was stayed pursuant to section 654. The court also imposed a $300 restitution fine (§ 1202.4), a $40 court operations fee for each of the two counts (§ 1465.8), and a $30 criminal conviction assessment fee for each of the two counts (Gov. Code, § 70373, subd. (a)(1)). The court further imposed and stayed a $300 parole revocation restitution fine. (§ 1202.45.)
On appeal, defendant contended the matter should be remanded for resentencing because the court was not aware of its discretion to modify the firearm enhancement imposed under section 12022.53, subdivision (d) to a lesser-included firearm enhancement. He also argued the court erred by imposing restitution fines and court fees without conducting a hearing on his ability to pay in violation of the holding in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
In June 2020, another panel of this court issued an opinion affirming the judgment. The California Supreme Court granted defendant's petition for review and subsequently decided People v. Tirado (2022) 12 Cal.5th 688 (Tirado). On April 27, 2022, the Supreme Court transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Tirado. On May 24, 2022, we vacated our prior decision in accordance with the transfer order. The parties also filed supplemental briefs agreeing the matter should be remanded for resentencing pursuant to Tirado.
We conditionally reverse the former section 12022.53, subdivision (d) enhancement and remand the matter for the trial court to determine whether to exercise its discretion to impose a lesser enhancement. Defendant may also raise his Dueñas claim before the trial court on remand.
FACTS
Defendant and Arturo Baltazar were members of the Anaheim Travelers City gang (Travelers City), and Alexis Solis, the victim, was a member of a rival gang called Pauline Street gang. Baltazar had threatened Solis in the past and had problems with him. One evening in March 2013, Solis was in the rear passenger seat of a car with his friend, her son, and two others. He told the driver to pull over into an alley so he could spray graffiti on a wall in territory claimed by Travelers City. After Solis and the driver walked out of the car together, they ran back a few minutes later and appeared to be panicked. As they drove away, defendant, who had been with Baltazar that evening, fired a gun shattering the car's rear window and injuring Solis who died from a gunshot wound to the back of his head. A passenger in the car heard defendant yell "Travelers City" as he fired the gun.
After defendant was arrested, he admitted to the shooting and to disposing the gun in a recorded jailhouse conversation with another Travelers City gang member who was in custody.
DISCUSSION
Remand for a new hearing on whether to modify the firearm enhancement to a lesser-included enhancement is necessary.
Both parties argue that remand for resentencing is necessary to give the trial court an opportunity to impose a lesser included firearm enhancement under section 12022.53. We agree.
Section 12022.53 sets forth three separate firearm enhancements. The jury found the most serious enhancement applicable in this case-the 25-year-to-life enhancement in subdivision (d) for discharge of a firearm causing death. Subdivisions (c) and (b) detail lesser included enhancements, which were neither charged nor found true by the jury. Those include a 20-year enhancement for discharging a firearm (§ 12022.53, subd. (c)) and a 10-year enhancement for using a firearm (§ 12022.53, subd. (b)).
At the time of our initial opinion, there was a split of authority as to whether a trial court has authority to strike a firearm enhancement and impose a lesser one that was neither charged nor proved. (Tirado, supra, 12 Cal.5th at p. 696.) In Tirado, our Supreme Court subsequently resolved the split in authority and held section 12022.53, subdivision (j) authorizes trial courts to impose a lesser firearm enhancement under certain circumstances. (Tirado, at pp. 699-702.) The court explained: "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 court may, under section 12022.53[, subdivision] (j), impose an enhancement under section 12022.53[, subdivision] (b) or (c)." (Id. at p. 700.) In other words, the "statutory framework permits a court to strike the section 12022.53[, subdivision] (d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead." (Id. at p. 692.)
Here, the trial court was not aware it had discretion to impose a lesser enhancement under section 12022.53, subdivision (b) or (c) at the time of defendant's sentencing in 2018. We accordingly remand for the court to determine whether to exercise such discretion.
Defendant may raise his challenge to the fines and fees at resentencing.
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant contends we should remand the matter for the court to determine if he has the ability to pay the restitution fines and court fees. As noted, ante, the court imposed a $300 restitution fine (§ 1202.4), a $40 court operations fee for each of the two counts (§ 1465.8), and a $30 criminal conviction assessment fee for each of the two counts (Gov. Code, § 70373, subd. (a)(1)). The court also imposed and stayed a $300 parole revocation restitution fine. (§ 1202.45.)
The Attorney General presents several arguments in response, including that: (1) defendant's contention challenging the restitution fines should be reviewed under the Eighth Amendment's excessive fines clause rather than the due process clause of the Fourteenth Amendment and his claim fails under this rubric because the restitution fines were not grossly disproportionate to his offense; and (2) any due process violation is harmless beyond a reasonable doubt because defendant has the capacity to work and earn prison wages to pay the fees.
Because we are remanding for resentencing, defendant may raise his inability to pay argument at the resentencing hearing.
DISPOSITION
The judgment is reversed, and the matter is remanded for resentencing. On remand, the court is directed to determine whether to exercise its discretion to impose a lesser firearm enhancement under section 12022.53. If the court reduces the enhancement, it shall resentence defendant accordingly. If it does not reduce the enhancement, it shall reinstate defendant's sentence. On remand, defendant may also raise his Dueñas claim that he is unable to pay the imposed fines and fees. In all other respects, the judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.