Filed 4/12/21 P. v. Pedraza CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE,
Plaintiff and Respondent,
v.
OSIRIS LENIN GARFIAS PEDRAZA,
Defendant and Appellant.
|
G058743
(Super. Ct. No. 17NF2318)
O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Reversed and remanded.
J. Courtney Shevelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Osiris Lenin Garfias Pedraza appeals from the judgment following his conviction of first degree murder. The jury found he personally used a firearm to cause his victim’s death. The court sentenced him to an indeterminate term of life without the possibility of parole, plus a consecutive term of 25 years to life for his personal use of a firearm.
Pedraza does not challenge his conviction; he argues only that the court erred by failing to exercise its discretion to strike his firearm enhancement conferred by the Legislature in Senate Bill No. 620.
Senate Bill No. 620, effective January 1, 2018, added the following language to the firearm enhancement provisions of Penal Code[1] sections 12022.5 and 12022.53: “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. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1, 2.)
“The general rule is that a trial court is presumed to have been aware of and followed the applicable law,” including laws providing it with discretion in sentencing issues. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) The presumption applies when the record is silent; it can be overcome by affirmative evidence demonstrating error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
In this case, although Pedraza was sentenced in January 2020, two years after the effective date of Senate Bill No. 620, the experienced trial court’s own comments suggest it was unaware it had discretion to strike Pedraza’s firearm enhancement, rather than impose an additional term of imprisonment for it. The court twice stated that Pedraza’s sentence was “pretty much mandated by law,” and more specifically noted that “personal discharge of a firearm causing death would be 25 to life.”
The Attorney General concedes “it appears that the trial court misunderstood the scope of its sentencing discretion” under the amended statutes, and states he “does not oppose remanding the matter for the trial court to exercise its discretion as to whether to strike the firearm enhancement.”
We agree that is the appropriate disposition of this appeal.
DISPOSITON
We reverse the judgment and remand the case to the trial court with directions to exercise its discretion in determining whether to strike Pedraza’s firearm enhancement, rather than impose an additional term of 25 years to life for it. In all other respects the judgment is affirmed.
GOETHALS, J.
WE CONCUR:
MOORE, ACTING P. J.
IKOLA, J.
[1] All further statutory references are to this code.
