People v. Smith CA3

Filed 9/26/24 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C099567

Plaintiff and Respondent, (Super. Ct. No. 21FE018911)

v.

DEMONTE LAVASE SMITH,

Defendant and Appellant.

A jury found defendant Demonte Lavase Smith guilty of second degree murder and found true three firearm use allegations, as well as two aggravating circumstance allegations. The trial court sentenced defendant to 40 years to life in state prison, including a term of 25 years to life for the firearm enhancement. Defendant contends the trial court abused its discretion by declining to strike the firearm enhancement or impose a lesser enhancement instead. The People respond that defendant forfeited this issue, and in any event, the trial court did not abuse its discretion. We conclude the trial court did not abuse its discretion.

1

The parties agree, as do we, that the abstract of judgment must be corrected. The trial court has already issued an amended abstract that corrected many of the issues, but introduced another error. Accordingly, we will order the abstract corrected and affirm the judgment. BACKGROUND A jury found defendant guilty of second degree murder and found true allegations that, while committing the offense defendant: (1) intentionally and personally discharged a firearm causing great bodily injury or death; (2) personally discharged a firearm; and (3) personally used a firearm. The jury also found true allegations that the crime involved great violence, great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness and that defendant had been armed with or used a weapon when committing the crime. At sentencing, defendant asked the trial court to strike the enhancements based on his use of a firearm or to at least strike the two longer enhancements and impose the shorter enhancement. The People asked the court to impose the longest firearm enhancement, 25 years to life in prison, pursuant to Penal Code section 12022.53, subdivision (d).1 The trial court determined that dismissal of the longest enhancement would endanger public safety and declined to exercise its discretion to dismiss any enhancements or to impose a shorter enhancement instead. Accordingly, the court sentenced defendant to 15 years to life in prison for murder plus 25 years to life in prison for the section 12022.53, subdivision (d) firearm enhancement. Defendant timely appealed.