Filed 7/5/22 P. v. Torres CA4/2 Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E075901
v. (Super.Ct.No. FVI1101609)
DAVID JERRY TORRES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed in part, remanded with directions in part.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Charles C. Ragland and Julie
L. Garland, Assistant Attorneys General, Robin Urbanski and Brendon W. Marshall,
Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION
Defendant and appellant David Jerry Torres challenges the trial court’s decision
declining to exercise its discretion under Penal Code1 section 12022.53, subdivision (h),
to strike his firearm enhancement. He argues the matter should be remanded because the
sentencing court failed to orally pronounce the sentence during the resentencing hearing
and also because the court did not understand its discretion to impose a lesser included
firearm enhancement.
We previously agreed that the matter must be remanded for the court to orally
pronounce sentence but disagreed that the court had discretion to impose a lesser
uncharged firearm enhancement. The California Supreme Court granted review,
S272226, and deferred further action pending consideration and disposition of a related
issue in People v. Tirado, S257658. The Supreme Court subsequently issued People v.
Tirado (2022) 12 Cal.5th 688 (Tirado), which addressed whether a court may impose a
lesser uncharged firearm enhancement under section 12022.53, subdivisions (b) or (c).
The Supreme Court transferred the case back to this court with directions to vacate our
decision and reconsider the matter in light of Tirado. We thereafter vacated our decision
filed November 10, 2021, and allowed the parties to file supplemental briefs.
In his supplemental brief, defendant asserts the matter should be remanded for
resentencing because the trial court did not understand its discretion to consider whether
1 All future statutory references are to the Penal Code unless otherwise stated.
2 to impose a lesser included firearm enhancement. Because defendant’s case is not yet
final and the law has changed since defendant was sentenced, the People agree that the
matter should be remanded for resentencing. We vacate the sentence and remand for
resentencing in light of Tirado. In all other respects, the judgment is affirmed.
II
PROCEDURAL BACKGROUND 2
On March 10, 2017, a jury found defendant guilty of murder (§187, subd. (a)), and
also found true the firearm enhancement that defendant personally and intentionally
discharged a firearm causing death (§ 12022.53, subd. (d)). The trial court sentenced
defendant to state prison for 40 years to life: 15 years to life on the murder conviction
and a consecutive 25 years to life for the firearm enhancement.
On December 3, 2018, this court affirmed the judgment, but ordered the matter
remanded for resentencing on the firearm enhancement. We explained “[t]he sentence is
vacated and the matter is remanded for resentencing to allow the trial court to exercise its
discretion as to whether the firearm enhancement under section 12022.53,
subdivision (d), should be stricken pursuant to section 1385.” (Torres I, supra, E069238,
at p. 6.)
On July 26, 2019, the People filed a sentencing memorandum asserting that the
firearm enhancement should not be stricken. On that same day, the sentencing court
2Because the factual background underlying defendant’s conviction is unnecessary to our resolution of the limited issue presented in this appeal, we will not recount those details. The factual details can be found in defendant’s prior appeal in case No. E069238. (See People v. Torres (Dec. 3, 2018, E069238) [nonpub. opn.] (Torres I).)
3 declined to exercise its discretion to strike the 25-year-to-life firearm enhancement.
Specifically, the court stated, “[t]he Court believes that this is not a case that justifies
striking and exercising my discretion to strike the 25-year enhancement, so that petition
to do so is denied[,]” and “[f]or the record, I should indicate that I think that it was
proven that Mr. Torres was indeed the actual person who did the killing⸺was the person
who personally discharged the firearm.” The court, however, did not explicitly
resentence defendant after refusing to exercise its discretion to strike the firearm
enhancement. Defendant subsequently appealed.
On November 10, 2021, we concluded the trial court lacked authority to impose a
lesser included firearm enhancement at the resentencing hearing but concluded the matter
should be remanded for pronouncement of sentence as the court had failed to orally
pronounce a sentence at the resentencing hearing.
On January 19, 2022, the California Supreme Court granted review of this case,
and deferred briefing pending the decision in Tirado.
The Supreme Court subsequently issued its decision in Tirado, supra, 12 Cal.5th
688, and on April 27, 2022, transferred this matter back to us with directions to vacate
our decision filed November 10, 2021, and reconsider the cause in light of Tirado.
On April 29, 2022, we vacated our November 10, 2021, decision, and allowed the
parties to file supplemental briefs.
4 III
DISCUSSION
Defendant maintains the matter should be remanded for resentencing because the
trial court did not understand it had the ability to reduce his firearm enhancement to an
uncharged lesser enhancement in lieu of striking it. The People agree the matter should
be remanded for a resentencing hearing in light of Tirado. We agree that remand is
appropriate for the trial court to exercise its informed discretion.
“Section 12022.53 sets forth the following escalating additional and consecutive
penalties, beyond that imposed for the substantive crime, for use of a firearm in the
commission of specified felonies, including attempted premeditated murder: a 10-year
prison term for personal use of a firearm, even if the weapon is not operable or loaded
(id., subd. (b)); a 20-year term if the defendant ‘personally and intentionally discharges a
firearm’ (id., subd. (c)); and a 25-year-to-life term if the intentional discharge of the
firearm causes ‘great bodily injury’ or ‘death, to any person other than an accomplice’
(id., subd. (d)).” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124 (Gonzalez); see
Tirado, supra, 12 Cal.5th at p. 696; People v. Morrison (2019) 34 Cal.App.5th 217, 221
(Morrison).) For any of these enhancements to be imposed, the requisite facts must “be
alleged in the accusatory pleading and either admitted by the defendant in open court or
found to be true by the trier of fact.” (§ 12022.53, subd. (j); Tirado, at p. 695; Gonzalez,
at pp. 1124-1125.)
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Filed 7/5/22 P. v. Torres CA4/2 Opinion following transfer from Supreme Court
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 TWO
THE PEOPLE,
Plaintiff and Respondent, E075901
v. (Super.Ct.No. FVI1101609)
DAVID JERRY TORRES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed in part, remanded with directions in part.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Charles C. Ragland and Julie
L. Garland, Assistant Attorneys General, Robin Urbanski and Brendon W. Marshall,
Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION
Defendant and appellant David Jerry Torres challenges the trial court’s decision
declining to exercise its discretion under Penal Code1 section 12022.53, subdivision (h),
to strike his firearm enhancement. He argues the matter should be remanded because the
sentencing court failed to orally pronounce the sentence during the resentencing hearing
and also because the court did not understand its discretion to impose a lesser included
firearm enhancement.
We previously agreed that the matter must be remanded for the court to orally
pronounce sentence but disagreed that the court had discretion to impose a lesser
uncharged firearm enhancement. The California Supreme Court granted review,
S272226, and deferred further action pending consideration and disposition of a related
issue in People v. Tirado, S257658. The Supreme Court subsequently issued People v.
Tirado (2022) 12 Cal.5th 688 (Tirado), which addressed whether a court may impose a
lesser uncharged firearm enhancement under section 12022.53, subdivisions (b) or (c).
The Supreme Court transferred the case back to this court with directions to vacate our
decision and reconsider the matter in light of Tirado. We thereafter vacated our decision
filed November 10, 2021, and allowed the parties to file supplemental briefs.
In his supplemental brief, defendant asserts the matter should be remanded for
resentencing because the trial court did not understand its discretion to consider whether
1 All future statutory references are to the Penal Code unless otherwise stated.
2 to impose a lesser included firearm enhancement. Because defendant’s case is not yet
final and the law has changed since defendant was sentenced, the People agree that the
matter should be remanded for resentencing. We vacate the sentence and remand for
resentencing in light of Tirado. In all other respects, the judgment is affirmed.
II
PROCEDURAL BACKGROUND 2
On March 10, 2017, a jury found defendant guilty of murder (§187, subd. (a)), and
also found true the firearm enhancement that defendant personally and intentionally
discharged a firearm causing death (§ 12022.53, subd. (d)). The trial court sentenced
defendant to state prison for 40 years to life: 15 years to life on the murder conviction
and a consecutive 25 years to life for the firearm enhancement.
On December 3, 2018, this court affirmed the judgment, but ordered the matter
remanded for resentencing on the firearm enhancement. We explained “[t]he sentence is
vacated and the matter is remanded for resentencing to allow the trial court to exercise its
discretion as to whether the firearm enhancement under section 12022.53,
subdivision (d), should be stricken pursuant to section 1385.” (Torres I, supra, E069238,
at p. 6.)
On July 26, 2019, the People filed a sentencing memorandum asserting that the
firearm enhancement should not be stricken. On that same day, the sentencing court
2Because the factual background underlying defendant’s conviction is unnecessary to our resolution of the limited issue presented in this appeal, we will not recount those details. The factual details can be found in defendant’s prior appeal in case No. E069238. (See People v. Torres (Dec. 3, 2018, E069238) [nonpub. opn.] (Torres I).)
3 declined to exercise its discretion to strike the 25-year-to-life firearm enhancement.
Specifically, the court stated, “[t]he Court believes that this is not a case that justifies
striking and exercising my discretion to strike the 25-year enhancement, so that petition
to do so is denied[,]” and “[f]or the record, I should indicate that I think that it was
proven that Mr. Torres was indeed the actual person who did the killing⸺was the person
who personally discharged the firearm.” The court, however, did not explicitly
resentence defendant after refusing to exercise its discretion to strike the firearm
enhancement. Defendant subsequently appealed.
On November 10, 2021, we concluded the trial court lacked authority to impose a
lesser included firearm enhancement at the resentencing hearing but concluded the matter
should be remanded for pronouncement of sentence as the court had failed to orally
pronounce a sentence at the resentencing hearing.
On January 19, 2022, the California Supreme Court granted review of this case,
and deferred briefing pending the decision in Tirado.
The Supreme Court subsequently issued its decision in Tirado, supra, 12 Cal.5th
688, and on April 27, 2022, transferred this matter back to us with directions to vacate
our decision filed November 10, 2021, and reconsider the cause in light of Tirado.
On April 29, 2022, we vacated our November 10, 2021, decision, and allowed the
parties to file supplemental briefs.
4 III
DISCUSSION
Defendant maintains the matter should be remanded for resentencing because the
trial court did not understand it had the ability to reduce his firearm enhancement to an
uncharged lesser enhancement in lieu of striking it. The People agree the matter should
be remanded for a resentencing hearing in light of Tirado. We agree that remand is
appropriate for the trial court to exercise its informed discretion.
“Section 12022.53 sets forth the following escalating additional and consecutive
penalties, beyond that imposed for the substantive crime, for use of a firearm in the
commission of specified felonies, including attempted premeditated murder: a 10-year
prison term for personal use of a firearm, even if the weapon is not operable or loaded
(id., subd. (b)); a 20-year term if the defendant ‘personally and intentionally discharges a
firearm’ (id., subd. (c)); and a 25-year-to-life term if the intentional discharge of the
firearm causes ‘great bodily injury’ or ‘death, to any person other than an accomplice’
(id., subd. (d)).” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124 (Gonzalez); see
Tirado, supra, 12 Cal.5th at p. 696; People v. Morrison (2019) 34 Cal.App.5th 217, 221
(Morrison).) For any of these enhancements to be imposed, the requisite facts must “be
alleged in the accusatory pleading and either admitted by the defendant in open court or
found to be true by the trier of fact.” (§ 12022.53, subd. (j); Tirado, at p. 695; Gonzalez,
at pp. 1124-1125.)
5 Senate Bill No. 620 amended section 12022.53, subdivision (h), which previously
prohibited sentencing courts from striking a firearm enhancement found true under the
statute. (Tirado, supra, 12 Cal.5th at pp. 695-696.) Effective January 1, 2018,
subdivision (h) now provides that a sentencing 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); Tirado, at
pp. 695-696.) After the amendment to section 12022.53, subdivision (h), in Morrison,
supra, 34 Cal.App.5th 217, Division Five of the First Appellate District held that trial
courts have “discretion to impose an enhancement under section 12022.53,
subdivision (b) or (c) as a middle ground to a lifetime enhancement under
section 12022.53, subdivision (d), if such an outcome [is] found to be in the interests of
justice under section 1385.” (Morrison, at p. 223.)
In Tirado, our Supreme Court concluded that Morrison “correctly described the
scope of a trial court’s sentencing discretion under section 12022.53.” (Tirado, supra, 12
Cal.5th at p. 697.) The Supreme Court explained that the “statutory framework” of
section 12022.53, as amended by Senate Bill No. 620, “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, at p. 692.) “To summarize:
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
6 under section 12022.53[, subdivision] (h), the court may, under section 12022.53[,
subdivision] (j), impose an enhancement under section 12022.53[, subdivisions] (b)
or (c).” (Tirado, at p. 700.) The court explained “the Legislature has permitted courts to
impose the penalties under section 12022.53[, subdivisions] (b), (c), or (d) so long as the
existence of facts required by the relevant subdivision has been alleged and found true.”
(Tirado, at p. 702.)
Tirado decisively establishes that the trial court has the discretion to strike the
section 12022.53, subdivision (d) enhancement and impose a lesser enhancement under
subdivisions (b) or (c) of that section, since by finding the greater enhancement true the
jury necessarily found true facts supporting the lesser enhancements. (See Tirado, supra,
12 Cal.5th at p. 700.) In addition, it is clear the trial court “‘proceeded with sentencing
on the . . . assumption it lacked [such] discretion.’” (People v. McDaniels (2018) 22
Cal.App.5th 420, 425 (McDaniels).) At the resentencing hearing, the trial court found
that defendant was the actual shooter, and therefore declined to “exercise[e] [its]
discretion to strike the 25-year enhancement.” As the People note, the trial court’s
statements indicate that it believed a gun use enhancement was appropriate but fails to
suggest the court was aware of its discretion to substitute the section 12022.53,
subdivision (d) enhancement with a lesser enhancement, instead of only striking the
enhancement. The court did not “clearly indicate[ ]” it would have declined to impose
one of the lesser enhancements even if it believed it had discretion to do so. (McDaniels,
at p. 425.) Therefore, we agree with the parties that a remand is required for the trial
7 court to exercise its discretion as clarified by Tirado. We express no opinion as to how
the court should exercise its discretion on remand.
IV
DISPOSITION
Defendant’s sentence, imposed on July 26, 2019, is vacated and the matter is
remanded for the trial court to consider whether to exercise its discretion to strike the
firearm enhancement under section 12022.53, subdivision (d), and impose a lesser
enhancement under section 12022.53, subdivision (b) or (c). The judgment is otherwise
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
RAMIREZ P. J.
SLOUGH J.