Opinion
F079788
06-13-2022
THE PEOPLE, Plaintiff and Respondent, v. CHERYL LYNN LUCERO, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County. No. CRF44425 James A. Boscoe, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
This matter returns to us on a transfer from our Supreme Court with directions to vacate our prior opinion and reconsider in light of People v. Tirado (2022) 12 Cal.5th 688 (Tirado). Tirado held that "[w]hen an accusatory pleading alleges and the jury finds true the facts supporting a [25-year-to-life firearm enhancement under Penal Code section 12022.53(d) …, and the court determines that the section 12022.53(d) enhancement should be struck or dismissed under section 12022.53(h), the court may, under section 12022.53(j), impose a[ lesser firearm] enhancement under section 12022.53(b) or (c)." (Tirado, supra, 12 Cal.5th at p. 700.)
All further statutory references are to the Penal Code unless otherwise noted.
Our prior opinion has been vacated and we consider the matter anew. Defendant Cheryl Lynn Lucero was convicted of first degree murder with a firearm enhancement. Defendant argues that the trial court failed to exercise its discretion to strike the 25-year-to-life firearm enhancement and impose a lesser enhancement. She therefore contends that we should vacate her sentence and remand the matter to the trial court to exercise its discretion. We conclude that remand is not necessary because the trial court understood the scope of its discretion to include striking the 25-year-to-life firearm enhancement and imposing a lesser enhancement but declined to do so. The trial court correctly understood its discretion and did not abuse its discretion. We affirm.
On August 17, 2020, this court took judicial notice of our prior nonpublished opinion in People v. Lucero (Jan. 28, 2019, F072676). On our own motion, we take judicial notice of the appellate record in that case. (Evid. Code, §§ 452, subd. (d), 459.)
The Tuolumne County District Attorney charged defendant with the murder of Rick Roberts and alleged various firearm enhancements. (§§ 187, subd. (a), 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d).) The jury found defendant guilty of first degree murder and determined that she personally and intentionally discharged a firearm, resulting in Roberts's death. (§ 12022.53, subd. (d).) The jury did not make findings on the lesser firearm enhancements. The trial court sentenced defendant to a term of 25 years to life for murder and a consecutive term of 25 years to life for the firearm enhancement.
On January 28, 2019, we vacated defendant's sentence and remanded for resentencing in light of Senate Bill No. 620 (2017-2018 Reg. Sess.; Stats. 2017, ch. 682, § 1) (Senate Bill 620), which granted trial courts the discretion to strike firearm enhancements if justice so requires. (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
On August 2, 2019, the trial court declined to strike the 25-year-to-life firearm enhancement and reimposed the original sentence.
On August 7, 2019, defendant filed a notice of appeal.
On December 7, 2020, we affirmed defendant's sentence. Defendant sought review and, on February 10, 2021, our Supreme Court granted review.
On April 27, 2022, our Supreme Court transferred the matter back to this court with directions to "vacate [our] decision and reconsider the cause in light of People v. Tirado …." The parties have since briefed the issue.
Because the issues before us are purely legal in nature, we omit a factual summary.
Defendant argues that the trial court did not understand that it had the discretion to strike her 25-year-to-life firearm enhancement and impose a lesser firearm enhancement. She contends "the trial court gave no indication that it had considered imposition of a lesser firearm enhancement. Its comments were directed solely to the issue whether the enhancement should be stricken in its entirety." The People respond that our conclusion in the now-vacated prior opinion-that the trial court understood its discretion to include the authority to strike the 25-year-to-life enhancement and impose a lesser enhancement-is fatal to defendant's claim. Because our prior opinion was ordered vacated, it does not control or influence our decision. However, reviewing the matter anew, we again reach the conclusion that the trial court understood its discretion to include the authority to strike the 25-year-to-life firearm enhancement and impose a lesser firearm enhancement. For that reason, we conclude that the trial court correctly understood the scope of its discretion and did not abuse its discretion.
First, we begin with the presumption that the trial court was aware of, and did not misunderstand the scope of, its discretion. Nothing in the record rebuts that presumption. Second, we further conclude that the trial court clearly exercised its discretion to not strike the 25-year-to-life firearm enhancement in favor of imposition of a lesser enhancement.
A. Tirado and the Trial Court's Discretion to Strike a Section 12022.53 Enhancement in Favor of a Lesser Section 12022.53 Enhancement
Section 12022.53 sets out three different sentence enhancements for the personal use of a firearm in the commission of certain enumerated felony offenses: subdivision (b) provides for a 10-year enhancement for the personal use of a firearm, subdivision (c) provides for a 20-year enhancement for the personal and intentional discharge of a firearm, and subdivision (d) provides for a 25-year-to-life enhancement for the personal and intentional discharge of a firearm causing great bodily injury or death.
In Tirado, our Supreme Court explained that, when a true finding under section 12022.53, subdivision (d) necessarily includes a true finding under section 12022.53 subdivision (b) or (c), "and the court determines that the section 12022.53(d) enhancement should be struck or dismissed …, the court may … impose an enhancement under section 12022.53(b) or (c)." (Tirado, supra, 12 Cal.5th at p. 700.)
The Tirado court gave examples of offenses attached to which a section 12022.53, subdivision (d) enhancement could be found true that would not necessarily imply a true finding as to subdivisions (b) or (c). (Tirado, supra, 12 Cal.5th at p. 700, fn. 12.) Murder is not one such offense.
B. Additional Background
On remand from our January 28, 2019 opinion, defendant moved the trial court to strike the 25-year-to-life firearm enhancement, or in the alternative, strike that enhancement and impose a lesser firearm enhancement. In support of her argument in the alternative, defendant relied upon People v. Morrison (2019) 34 Cal.App.5th 217. In Morrison, the defendant was charged with murder and a 25-year-to-life firearm enhancement under section12022.53, subdivision (d). (Id. at p. 220.) The defendant was convicted of first degree premeditated murder and the firearm enhancement was found true. (Ibid.) The defendant was sentenced to 25 years to life for murder and 25 years to life for the firearm enhancement. (Ibid.) After sentencing, the defendant requested a recall of the sentence in light of Senate Bill 620, which amended sections 12022.5, subdivision (c), and 12022.53, subdivision (h). (Ibid.) The trial court recalled the sentence but denied the request to strike the firearm enhancement. It then reimposed the original sentence. On appeal, the First District Court of Appeal vacated the sentence and remanded for resentencing because it concluded that the trial court was unaware that it had the discretion to strike the 25-year-to-life firearm enhancement (§ 12022.53, subd. (d)), and impose a lesser included firearm enhancement (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (c)), if it was in the interest of justice to do so. (Morrison, at pp. 222-225.)
In her written response, the prosecutor argued that the 25-year-to-life firearm enhancement should not be stricken because it would not be in the interest of justice. That response was silent regarding whether the trial court could impose a lesser firearm enhancement. However, during the hearing on defendant's motion, the prosecutor appears to have assumed that the trial court had the discretion to substitute a lesser firearm enhancement but contended it was not in the interest of justice to do so. She argued that "to impose a lesser gun enhancement makes no sense because those enhancements relate to, did she discharge a firearm in the commission of an offense. Well, yes. But she killed somebody with it. And that is what 12022.53(d) is designed to punish. [¶] To impose a lesser gun enhancement doesn't really match the conduct in this case. The (c) enhancement is just her discharging a weapon, not killing someone with it. And the (a) and the (b) is just for personal use of a weapon in the commission of a crime .…"
At the time of resentencing, Morrison was the only published case on the issue.
The trial court considered the parties' arguments and stated that it had read the parties' briefs, but it did not squarely address whether it believed it had the discretion to impose a lesser firearm enhancement. After the parties' arguments, the trial court relayed the facts of the offense and found "no circumstances" that would lead it to "find that it would be in the interest of justice to strike the firearm enhancement previously imposed at the time of sentencing." The trial court found that the evidence was compelling. It explained that the "stalking," "the continued deflection of responsibility to other people, the timing of the purchase of the weapon[, ] … the actual murder of Mr. Roberts …[, ] and the [existence of] the shrine, the photographs, the tattooing, [and] the wedding invitations" all support imposition of the 25-year-to-life firearm enhancement.
C. Analysis
First, in the absence of any affirmative indication to the contrary," 'a trial court is presumed to have been aware of and followed the applicable law. [Citations.]' [Citations.] This rule derives in part from the presumption of Evidence Code section 664 'that official duty has been regularly performed.'" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) This presumption, however, is rebutted where "the record demonstrates the trial court was unaware of its discretion or that it misunderstood the scope of its discretion under the applicable law." (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 334.)
Here, the record is absent of any indication that the trial court did not believe that it had the discretion to strike the 25-year-to-life enhancement and impose a lesser firearm enhancement. When the trial court resentenced defendant, Morrison was the only published opinion addressing the issue and the parties appeared to agree that the trial court could impose a lesser firearm enhancement if justice so required. Further, the trial court's decision-to not strike the 25-year-to-life enhancement-was not inconsistent with it holding the belief that it had discretion to impose a lesser enhancement. We therefore must conclude that the trial court understood its discretion to encompass striking the 25-year-to-life enhancement and imposing a lesser firearm enhancement, but it declined to exercise that discretion.
Defendant's abuse of discretion argument is premised on the trial court having misunderstood its discretion. Defendant does not argue that the trial court understood the scope of its discretion but nevertheless abused its discretion. Our conclusion that the trial court understood the scope of its discretion therefore resolves defendant's claim.
When the trial court resentenced defendant, on August 2, 2019, the trial court's understanding of its discretion was consistent with our Supreme Court's recent holding in Tirado regarding that discretion. We find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
[*] Before Poochigian, Acting P. J., Smith, J. and Meehan, J.