Summary
In Yanez, this court agreed with Tirado and concluded that judges lack discretion under sections 1385 or 12022.53 to impose a lesser enhancement.
Summary of this case from People v. PorterOpinion
E070556
01-21-2020
The PEOPLE, Plaintiff and Respondent, v. Salvador YANEZ IV, Defendant and Appellant.
Raymond Mark DiGuiseppe, Southport, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General; Julie L. Garland, Assistant Attorney General, and Daniel Rogers, Adrianne Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II C., III A.-C., and III E.
Raymond Mark DiGuiseppe, Southport, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General; Julie L. Garland, Assistant Attorney General, and Daniel Rogers, Adrianne Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS, J. I. INTRODUCTION
On March 11, 2015, Gilbert Lopez died from gunshot wounds following a verbal argument with defendant and appellant, Salvador Yanez IV. Defendant was charged and convicted by a jury of the second degree murder of Lopez ( Pen. Code, § 187, subd. (a) ) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The jury also found true special allegations that defendant discharged a firearm and caused great bodily injury or death in the commission of the murder. (§ 12022.53, subd. (d).) In a bifurcated proceeding, the trial court found defendant had suffered a prior conviction for a serious or violent felony pursuant to section 667, subdivision (a) and a prior strike conviction pursuant to section 667, subdivisions (b) through (i). Defendant was sentenced to a total of 60 years to life in state prison, representing 30 years to life for the murder conviction, an additional 25 years to life for the firearm enhancement, and an additional consecutive five years for the prior serious felony conviction.
Unless otherwise noted, all undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) the trial court abused its discretion in admitting expert gang testimony which should have been excluded as unduly prejudicial under Evidence Code section 352 ; (2) the prosecutor engaged in misconduct warranting reversal by referencing jury deliberations during argument on defendant's motion to strike his firearm enhancement conviction; (3) defendant was not given constitutionally adequate advisement when waiving his right to a jury trial on his prior conviction and prior strike allegations; (4) the matter should be remanded to allow the trial court to exercise discretion to impose a lesser, uncharged firearm enhancement pursuant to section 12022.53, subdivision (h); and (5) the matter should be remanded to allow the trial court to exercise its discretion to strike a five-year enhancement pursuant to recent amendments made to sections 667 and 1385. We remand the matter for resentencing pursuant to amended sections 667 and 1385. In all other respects, we affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. Facts
On March 11, 2015, Gilbert Lopez became involved in a verbal argument with defendant. Gilbert was visiting his brother, Angel Lopez, and the two were hanging out on the balcony of Angel's apartment when two men approached and called out to them from below. Defendant was one of the two men.
Because they share the same surnames, we will refer to Gilbert Lopez and Angel Lopez by their first names for convenience and clarity, intending no disrespect.
Defendant looked up and initiated a verbal conversation with Angel by asking if Angel had seen an individual named "Stoner." When Angel responded that he had not seen "Stoner," defendant then asked Angel where he was from. Angel understood this to be a question regarding what gang he was in, and in response replied: " ‘I don't bang.’ " However, Gilbert responded with: " ‘Wait a minute’ ... ‘[w]hy are you coming over here and saying where are you from?’ "
In response to Gilbert, defendant identified himself as "Downer" from "JT." Gilbert proceeded to walk downstairs to confront defendant and a verbal argument ensued. Gilbert was heard saying: " ‘Why are you coming over here gangbanging to my brother?’ " and " ‘Let's get down then.’ " In response, defendant stated: " ‘Nah, not with all of these kids here.’ " At some point, Gilbert pulled out a gun, to which defendant responded: " ‘What the fuck is wrong with you?’ " Their verbal confrontation escalated to a point where others in the apartment complex called their children inside. Eventually, Gilbert returned to Angel's apartment and explained he had been arguing with defendant about gang-related activities like "not representing his hood."
While in Angel's apartment, Gilbert exchanged text messages with a friend. During this text exchange, Gilbert asked if his friend knew "Downer from J-T"; explained that he had been in a confrontation with Downer; stated that "I pulled out my strap ‘cause I didn't know who it was"; and expressed concern stating "on the real homes if anything is—if anyone has beef to get at me on the street, Polfast." Shortly after his text exchange, Gilbert left Angel's apartment.
Angel watched from the balcony of his apartment as Gilbert walked towards the parking area of the apartment complex. Angel heard someone call out, " ‘[h]ey,’ " watched as Gilbert turned in the direction of the voice, and watched Gilbert walk out of sight. Angel exited his apartment to follow Gilbert and heard several gunshots while doing so. As Angel ran toward the sound of the shots, he observed defendant run away from the area, enter a white car, and drive away quickly. Angel saw a black object in defendant's hand as defendant was running toward the car, but could not specifically identify the object. He then discovered Gilbert shot and called an ambulance.
Gilbert had been shot five times, with gunshot wounds in his neck, torso, pelvis, right thigh, and left arm. The shots appeared to have been fired at close range and most of them indicated Gilbert had been shot from the backside. Gilbert died from these gunshot wounds.
B. Charges
On December 31, 2015, defendant was charged in an information with one count of murder (count 1; § 187, subd. (a) ) and one count of unlawful possession of a firearm (count 2; § 29800, subd. (a)(1)). The information further alleged that defendant intentionally discharged a firearm causing great bodily injury or death in the commission of count 1 in violation of sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8). Finally, the information alleged that defendant had a serious felony prior (§ 667, subd. (a)), as well as a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
See footnote *, ante .
D. Verdict and Sentencing
On March 1, 2018, a jury found defendant guilty of second degree murder on count 1. The jury also found true the allegation that defendant discharged a firearm causing great bodily harm or death in the commission of the murder. In a bifurcated proceeding, the trial court found true the special allegations that defendant had been previously convicted of a serious felony and strike offense.
Defendant requested that the court exercise its discretion to strike the firearm enhancement and prior strike conviction pursuant to sections 12022.53, subdivision (h) and 1385. The trial court denied both requests. Defendant was sentenced to 55 years to life on count 1, representing 15 years on the murder conviction, doubled to 30 years for the prior strike conviction and increased by an additional 25 years for the firearm enhancement. Defendant was also sentenced to an additional five years for the prior serious felony enhancement, to run consecutively with the sentence on count 1. III. DISCUSSION
The trial court also sentenced defendant to four years on count 2, to run concurrently with the sentence on count 1.
See footnote *, ante .
D. Remand of the Firearm Enhancement Sentence Is Not Warranted
Defendant requested that the trial court exercise its discretion to strike his firearm enhancement pursuant to section 12022.53, subdivision (h) and the request was denied. Nevertheless, defendant contends that the matter must be remanded to allow the trial court to exercise its discretion to potentially impose a lesser, uncharged firearm enhancement under section 12022.53, subdivision (h), relying on People v. Morrison (2019) 34 Cal.App.5th 217, 245 Cal.Rptr.3d 849 as authority for such "newly-granted discretion." We respectfully disagree with the reasoning set forth in that opinion and conclude that the statute does not afford any such discretion. We therefore decline to remand the matter on this basis.
Section 12022.53 provides three different sentence enhancements for the personal use of a firearm in the commission of enumerated offenses: a 10-year enhancement for the personal use of a firearm (§ 12022.53, subd. (b)); a 20-year enhancement for the personal and intentional discharge of a firearm (§ 12022.53, subd. (c)); and a 25-year-to-life enhancement for the personal and intentional discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). Recently, the Legislature amended the statute to include the following: "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...." (§ 12022.53, subd. (h).)
Thus, the question we consider here is whether the statute, as amended, provides authority for a trial court to exercise discretion to impose a lesser included, uncharged enhancement in the interests of justice pursuant to section 1385, notwithstanding a finding by the trier of fact in support of a greater enhancement. In Morrison , our colleagues in the First District concluded that it does, analogizing to cases recognizing the trial court's discretionary authority to impose a lesser included, uncharged enhancement where a greater enhancement found true by the trier of fact is determined either legally inapplicable or unsupported by sufficient evidence. ( People v. Morrison, supra , 34 Cal.App.5th at pp. 222-223, 245 Cal.Rptr.3d 849.) More recently, our colleagues in the Fifth District reached the opposite conclusion in People v. Tirado (2019) 38 Cal.App.5th 637, 251 Cal.Rptr.3d 412, review granted November 13, 2019, S257658, concluding that the statute contained no language suggesting the Legislature intended to grant such discretion in sentencing. ( Id. at pp. 642-644, 251 Cal.Rptr.3d 412.) After conducting our own independent analysis of section 12022.53, subdivision (h), we agree with the conclusion reached in Tirado .
" ‘ "When we interpret a statute, ‘[o]ur fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.’ " ’ " ( Hassell v. Bird (2018) 5 Cal.5th 522, 540, 234 Cal.Rptr.3d 867, 420 P.3d 776.) In construing any statute, "we may not broaden or narrow the scope of the provision by reading into it language that does not appear in it or reading out of it language that does. ‘Our office ... "is simply to ascertain and declare" what is in the relevant statutes, "not to insert what has been omitted, or to omit what has been inserted." ’ [Citation.] ‘ " ‘A court ... may not rewrite the statute to conform to an assumed intention which does not appear from its language.’ " ’ " ( Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545, 67 Cal.Rptr.3d 330, 169 P.3d 559.)
Here, nothing in the plain language of sections 1385 or 12022.53, subdivision (h) suggests an intent to allow a trial court discretion to substitute one sentencing enhancement for another. We agree with our colleagues in the Fifth District that under a plain reading, the Legislature's use of the words "strike" or "dismiss" indicates the court's power pursuant to these sections is binary. ( People v. Tirado, supra , 38 Cal.App.5th at p. 643, 251 Cal.Rptr.3d 412.) We note that our colleagues in Division Three of this district reached the same conclusion when considering the plain meaning of the term "strike" in the context of a similar drug sentencing enhancement statute in People v. Harvey (1991) 233 Cal.App.3d 1206, 285 Cal.Rptr. 158. There, the court analyzed Health and Safety Code section 11370.4, subdivision (e), which provides the trial court may "strike" an enhancement if it determines that there are circumstances in mitigation. ( People v. Harvey, supra , at p. 1229, 285 Cal.Rptr. 158.) In concluding that the word "strike" did not include discretion to impose a lesser enhancement, the court explained: "The wording of the section makes it clear that the sentencing court has only two alternatives. If the court does not feel there are mitigating circumstances sufficient to justify the striking of the enhancement, it must impose the enhancement. Otherwise, if it finds that mitigating circumstances do exist which would justify striking the enhancement, it may be stricken. Nowhere does the section indicate the court may impose only a portion of the enhancement. In interpreting the statute, the Legislature is presumed to have meant what it said, and the plain meaning of the language governs. [Citation.] Nowhere in the statute does it indicate the court has any discretion besides either imposing the full enhancement or striking it in its entirety." ( Id. at pp. 1229-1230, 285 Cal.Rptr. 158.) The same reasoning would apply here.
Further, even if the wording of section 12022.53, subdivision (h) were ambiguous, "we apply ‘reason, practicality, and common sense to the language at hand’ [citation] ... consider[ing] the consequences that will flow from a particular interpretation" in order to reach a proper interpretation of the statute. ( MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1084, 36 Cal.Rptr.3d 650.) Here, we must consider the impact any proposed interpretation of section 12022.53, subdivision (h) may have on the separation of powers. " ‘The California Constitution (art. III, § 3 ) provides that "the powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by [the] Constitution." [¶] It is well settled that the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. [Citations.] ... The prosecution's authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch.’ " ( People v. Andreotti (2001) 91 Cal.App.4th 1263, 1268, 111 Cal.Rptr.2d 462, citing People v. Birks (1998) 19 Cal.4th 108, 134, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) In light of such, we decline to adopt an interpretation of section 12022.53, subdivision (h) which would vest the trial court with discretionary power to essentially modify a charge brought by the prosecutor despite sufficient evidence to support such a charge.
Here, the People charged defendant with a sentencing enhancement pursuant to section 12022.53, subdivision (d) and the jury found those allegations true. There is no suggestion that the jury's verdict was unsupported by the law or the evidence as would justify the imposition of a lesser offense . Because we reach a conclusion contrary to that in Morrison , we decline to remand the matter for resentencing on the ground that the trial court has newly granted discretion to impose a lesser, uncharged enhancement.
To the extent the Legislature has provided statutory authority for a trial court to modify a verdict in order to impose a lesser offense or lesser punishment than that found true by a jury, it has specified that such should occur only when the verdict is contrary to the law or evidence. (§ 1181.)
Finally, we note that even if we were to adopt a different interpretation and find section 12022.53, subdivision (h) vests the trial court with discretion to modify a charge otherwise supported by sufficient evidence, we would find that defendant forfeited the argument in this case. "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." ( People v. Sperling (2017) 12 Cal.App.5th 1094, 1100, 219 Cal.Rptr.3d 570.) The amended statute became effective January 1, 2018 and defendant was not sentenced until May of 2018. While the defendant requested the trial court strike the enhancement pursuant to the amended statute, there was no request to modify or reduce the enhancement. Accordingly, even if we were to hold that the amended statute gave the trial court discretion to impose a lesser enhancement, any such argument was forfeited by failing to raise the issue below. E. Remand to Exercise Discretion to Strike the Prior Conviction Enhancement
See footnote *, ante .
IV. DISPOSITION
The conviction is affirmed. The matter is remanded to permit the trial court to determine whether to strike the enhancement under section 667, subdivision (a) and to resentence defendant accordingly. In all other respects the judgment is affirmed.
We concur:
CODRINGTON, Acting P. J.
RAPHAEL, J.