Filed 4/5/22 P. v. Vasquez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed in part, reversed in part and remanded.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Acting Assistant Attorney General, Steve Oetting and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Jose Rincon Vasquez appeals from a judgment sentencing him to prison for 50 years to life for murdering a rival gang member with a firearm. On appeal, he contends the matter must be remanded for resentencing because the trial court failed to consider reducing one of his sentencing enhancements to a lesser enhancement. In light of the Supreme Court’s recent decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado), we agree. We therefore reverse appellant’s sentence and remand the matter for a new sentencing hearing. In all other respects, we affirm the judgment.

PROCEDURAL BACKGROUND

In 2020, a jury found appellant guilty of second degree murder for fatally shooting a rival gang member during a confrontation in Orange. It also found true an allegation that appellant personally discharged a firearm causing death within the meaning of Penal Code section 12022.53, subdivision (d).[1] Following that verdict, appellant then pleaded guilty to receiving stolen property and aggravated assault arising from a separate incident.

At sentencing, appellant admitted enhancement allegations he had suffered a prior strike conviction and a prior serious felony conviction. Although the trial court struck those enhancements in the interest of justice, it declined appellant’s request to strike the firearm enhancement. It then sentenced appellant to prison for 50 years to life, including 25 years to life for that enhancement.

DISCUSSION

Appellant does not challenge the trial court’s refusal to strike his firearm enhancement under section 12022.53, subdivision (d). Rather, he contends the case should be remanded for resentencing to permit the trial court to consider whether the interests of justice warrant reducing that enhancement to a lesser enhancement under section 12022.53. For the reasons explained below, we agree.

Section 12022.53 contains three separate firearm enhancements. The most serious, which the jury found applicable in this case, is the 25-year-to-life enhancement set forth in subdivision (d) for causing death by discharging a firearm. The statute also contains lesser enhancements of 20 years for discharging a firearm, and 10 years for using a firearm, under subdivisions (c) and (b), respectively. In addition, subdivision (h) gives the trial court discretion to strike or dismiss those enhancements in the interest of justice pursuant to section 1385.[2]

At the time appellant was sentenced in 2021, there was a split of authority over whether the power to strike or dismiss a section 12022.53, subdivision (d) enhancement included the power to reduce that enhancement to one of the lesser enhancements set forth subdivision (c) or (b) of that section. (Compare People v Morrison (2019) 34 Cal.App.5th 217 [trial courts do have such power] with People v. Garcia (2020) 46 Cal.App.5th 786 [trial courts do not have such power].) However, in January of 2022, after briefing in this case was complete, the California Supreme Court issued its opinion in Tirado, which answered that question in the affirmative. In particular, Tirado held, “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.” (Tirado, supra, 12 Cal.5th at p. 692.)

In response to our request for additional briefing, respondent admits the holding in Tirado regarding the scope of the trial court’s sentencing discretion is applicable in this case, and appellant may be entitled to have his 25-year firearm enhancement reduced to a lesser enhancement under section 12022.53. However, respondent argues appellant forfeited his right to consideration of that relief because he only asked the trial court to strike his enhancement, he did not ask the court to reduce it to a lesser one. Otherwise, appellant would be entitled to a remand under Tirado. We find this argument unpersuasive.

“As a general rule, ‘issues not raised in the trial court cannot be raised for the first time on appeal.’ [Citation.] On a number of occasions, however, appellate courts have relaxed this rule and have permitted a party to raise belatedly ‘a pure question of law which is presented on undisputed facts.’ [Citations.]” (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) For example, in In re Sheena K. (2007) 40 Cal.4th 875, the Supreme Court considered the defendant’s challenge to a probation condition, even though she did not object to it at the time of sentencing, because the challenge presented a purely legal issue that could be resolved without regard to the particular facts of the underlying case. (Id. at p. 889.)

Likewise, here, appellant’s appeal involves the purely legal question of whether the trial court had the authority to reduce his firearm enhancement to a lesser enhancement. And we now know, by virtue of the Supreme Court’s decision in Tirado, that the answer to that question is yes. Therefore, appellant’s failure to seek a reduction – as an alternative to outright dismissal – of the enhancement is not fatal to his appeal, and we will remand the matter for resentencing. This will permit the trial court to fashion a fair and just sentence for appellant knowing the full scope of its sentencing authority. (See generally People v. Welch (1993) 5 Cal.4th 228, 236 [noting appellate courts have been reluctant to apply the forfeiture rule if the defendant’s claim involves clear and correctable legal error that could result in him or her spending too much time in custody].) We offer no suggestion about what that sentence might be.

Given this disposition, we need not consider appellant’s additional claim that the imposition of certain fines and fees violated his due process rights. (See People v. Dueñas (2019) 30 Cal.App.5th 1157.) Since the case must be remanded for other reasons, we express no opinion on this issue and leave its resolution to the trial court in the first instance.

DISPOSITION

Appellant’s sentence is reversed, and the matter is remanded for full resentencing. In all other respects, the judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

SANCHEZ, J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Unless noted otherwise, all further statutory references are to the Penal Code.

[2] Section 1385 states, “(a) The judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” This provision has been construed to allow trial courts to dismiss an entire action or any part thereof, including an enhancement allegation. (See People v. Marsh (1984) 36 Cal.3d 134, 143.)