Filed 6/15/22 P. v. Flores CA5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge.

Lisa A. Smittcamp, District Attorney, Galen Rutiaga, Chief Deputy District Attorney, and Stacey L. Phillips, Deputy District Attorney, for Plaintiff and Appellant.

David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Respondent.

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INTRODUCTION

Defendant Salvador Castellanos Flores pled no contest to attempted residential robbery (Pen. Code,[1] §§ 211, 664; count 1), with the allegation that he personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)); attempted residential burglary with the allegation that a nonparticipant was present (§§ 459, 460, subd. (a), 664, 667.5, subd. (c)(21); count 2); and assault with a firearm (§ 245, subd. (a)(2); count 3). At sentencing, the court imposed the upper term of three years on count 1 and stayed sentence on the remaining counts pursuant to section 654. In place of sentencing on the firearm enhancement admitted under section 12022.53, subdivision (b), the court imposed a three-year term for an uncharged firearm enhancement under section 12022.5, subdivision (a), stating it had the discretion to do so.

The People appealed, arguing the court had no authority to substitute one firearm enhancement for another in the circumstances presented here. In our original majority opinion, we agreed with the People and held that section 12022.53, subdivision (h) does not permit a court to impose a lesser firearm enhancement that was not charged or found true by the jury. Accordingly, we reversed.

The California Supreme Court granted defendant’s petition for review (S269778). The state high court thereafter issued its opinion in People v. Tirado (2022) 12 Cal.5th 688 (Tirado), holding that the discretion afforded by section 12022.53, subdivision (h) permits a trial court to strike a section 12022.53 enhancement and impose a lesser, uncharged firearm enhancement (Tirado, at p. 700). The high court then transferred the instant matter to us with directions to vacate our opinion and reconsider the cause in light of Tirado.

Pursuant to the California Supreme Court’s order, we vacated our prior opinion. Defendant submitted supplemental briefing arguing Tirado compels the conclusion the trial court had the authority to strike the section 12022.53, subdivision (b) enhancement and impose the lesser enhancement under section 12022.5, subdivision (a). The People did not file a response.

We agree with defendant and affirm.

BACKGROUND

Defendant was charged with attempted residential robbery (§§ 211, 664; count 1), with the allegation that he personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)); attempted residential burglary with the allegation that a nonparticipant was present (§§ 459, 460, subd. (a), 664, 667.5, subd. (c)(21); count 2); and assault with a firearm (§ 245, subd. (a)(2); count 3). The charges arose out of an incident in which the victim, who was at home with two young children in the early morning, heard a loud noise and looked outside to see Alfonzo Martinez standing outside her security door, which was then unlocked.[2] Martinez attempted to tell the victim that he knew her husband, but did not respond when the victim asked him her husband’s name. The victim quickly locked her security door and, as she did so, saw defendant leaning against the wall. Defendant then moved away from the wall, stood next to Martinez, and pointed a firearm at the victim. The victim screamed and closed the wooden front door, at which point a neighbor called 911. Martinez was apprehended shortly thereafter, but defendant took flight and eventually was apprehended in a backyard. Martinez and defendant were identified by the victim. Officers recovered a revolver with five live rounds of ammunition from a recycling dumpster in the area where defendant first took flight.

On the date trial was set to begin, the court met with the parties in chambers and provided an indicated sentence to defendant and Martinez. The court then memorialized the discussion on the record, stating that it had given defendant an indicated sentence of no more than six years in state prison, which would involve the court exercising its discretion pursuant to section 1385 and People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), to impose a lesser firearm enhancement than that charged on count 1. The court additionally stated that review had been granted the previous day in this court’s opinion in People v. Tirado (2019) 38 Cal.App.5th 637, which later was reversed with directions by Tirado, supra, 12 Cal.5th 688. In the court’s view, this left Morrison as the “controlling authority” on the court’s ability to exercise its discretion to impose a lesser included firearm enhancement.

The People stated their understanding that defendant would “plead to the sheet,” and noted that the People had not made an offer in the case.[3] The People further stated that they had not alleged a lesser firearm allegation pursuant to section 12022.5 and did not intend to amend the information to allege a lesser firearm enhancement.

Thereafter, defendant entered a plea of no contest to all the charges and admitted all the allegations. Defense counsel confirmed that, although defendant had entered a plea of no contest to a firearm allegation under section 12022.53, subdivision (b), the court intended to exercise its discretion at sentencing, pursuant to section 1385 and Morrison, supra, 34 Cal.App.5th 217, to impose sentence on a lesser firearm enhancement.

In a subsequent sentencing brief, the People again objected to the court’s stated intent to strike the section 12022.53, subdivision (b) enhancement and impose instead a lesser enhancement under section 12022.5, subdivision (a).

At sentencing, the court opined that Morrison, supra, 34 Cal.App.5th 217, correctly interpreted Senate Bill No. 620 (2017-2018 Reg. Sess.) to allow a trial court to consider imposition of “lesser included enhancements for personal use of a firearm.” The court noted that defendant had no adult criminal history and had been free from the juvenile justice system for several years before committing the instant offense, and on that basis should be afforded some relief, although not “an entirety of relief,” from the firearm enhancement. The court then stated it would exercise its discretion under section 1385 and in the furtherance of justice to “supplant” a section 12022.5 firearm allegation in place of the admitted section 12022.53 allegation.

Accordingly, on count 1, the court sentenced defendant to a term of three years, plus an additional three years for the firearm enhancement pursuant to section 12022.5, subdivision (a). Sentence on the remaining counts was imposed and stayed pursuant to section 654.

DISCUSSION

Section 12022.53 sets out three separate sentencing 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. (Tirado, supra, 12 Cal.5th at p. 695.) Section 12022.5, subdivision (a) sets out an additional enhancement for the personal use of a firearm in the commission or attempted commission of any felony, and provides for a three-, four-, or 10-year sentencing enhancement, unless the use of a firearm is an element of the underlying offense. (§ 12022.5, subd. (a).)

Prior to January 1, 2018, section 12022.53, subdivision (h) prohibited trial courts from striking section 12022.53 enhancements.[4] (Tirado, supra, 12 Cal.5th at p. 695.) However, Senate Bill No. 620 (2017-2018 Reg. Sess.) removed this prohibition. (Tirado, at p. 696; Stats. 2017, ch. 682, § 2.) “Section 12022.53[, subdivision (h)] now provides 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.” (Tirado, at p. 696.) Our Supreme Court has recently held that the discretion to strike or dismiss an enhancement includes the discretion to impose an uncharged, lesser included enhancement. “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).” (Tirado, at p. 700.) A court’s decision to strike or dismiss an enhancement pursuant to section 1385 is reviewed for abuse of discretion. (See Tirado, at p. 694; see also People v. Carmony (2004) 33 Cal.4th 367, 378.)

Here, the trial court relied on Morrison, supra, 34 Cal.App.5th 217, to conclude that section 1385 afforded the court discretion, not only to strike a section 12022.53 enhancement, but to substitute an uncharged lesser firearm enhancement under section 12022.5, subdivision (a). Morrison considered whether a trial court may reduce a firearm enhancement under subdivision (d) of section 12022.53 to an enhancement under either subdivision (b) or subdivision (c). (Morrison, at p. 221.) Morrison recognized that caselaw allows a trial court to impose an uncharged “ ‘lesser included’ ” enhancement “when a greater enhancement found true by the trier of fact is either legally inapplicable or unsupported by sufficient evidence.” (Id. at p. 222.) Morrison then extended this reasoning: “We see no reason a court could not also impose one of these enhancements after striking an enhancement under section 12022.53, subdivision (d), under section 1385.” (Id. at pp. 222-223.) Tirado cited to Morrison with approval, stating, “Morrison correctly described the scope of a trial court’s sentencing discretion under section 12022.53.” (Tirado, supra, 12 Cal.5th at p. 697.)

Pursuant to Tirado, a court may impose a lesser uncharged enhancement so long as “the existence of facts required by the relevant subdivision has been alleged and found true.” (Tirado, supra, 12 Cal.5th at p. 702.) The language and reasoning of Tirado afforded the trial court discretion to impose any lesser included uncharged enhancements, including those under section 12022.5, subdivision (a), so long as the factual elements for those lesser included enhancements were alleged in the information and found true by a jury or admitted by the defendant. (See Tirado, at p. 702; see also id., at pp. 697-699 [citing with approval to cases which involved imposition of a lesser included enhancement not listed in the enhancement statute that was charged].) Here, neither party has suggested that the facts required by section 12022.5, subdivision (a) were not alleged or admitted. Accordingly, the trial court acted within its discretion by striking the section 12022.53, subdivision (b) enhancement and imposing instead an enhancement under section 12022.5, subdivision (a).[5]

DISPOSITION

The judgment is affirmed.

* Before Hill, P. J., Detjen, J. and Franson, J.

[1] Undesignated statutory references are to the Penal Code.

[2] The factual background is taken from the probation officer’s report, which summarized the police reports. The parties stipulated that the police reports formed part of the factual basis for the plea. Martinez was a codefendant below but is not a party to this appeal.

[3] A “ ‘plea[] to the sheet’ ” represents a plea made “in the hope that the court will show leniency,” rather than “for a consideration which would support a contract.” (People v. Marsh (1984) 36 Cal.3d 134, 140 (Marsh).)

[4] Section 12022.5, subdivision (c) similarly prohibited trial courts from striking section 12022.5 enhancements. (See § 12022.5, former subd. (c).)

[5] Defendant seeks affirmance of the judgment but argues that, if we reverse, he is entitled to a full resentencing, application of recently amended sentencing laws, and an opportunity to move to withdraw his plea. Because we affirm, we do not address these arguments.