People v. Smith CA2/3

Filed 10/30/24 P. v. Smith CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B330512

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA142223) v.

JOSHUA TYRECE SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Connie R. Quinones, Judge. Affirmed. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Joshua Tyrece Smith appeals from the modified judgment entered after this court remanded the matter for further proceedings following a prior appeal. (People v. Smith (Sept. 22, 2022, B308972 [nonpub. opn.].) Smith’s counsel has asked us to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm. In 2018, a jury convicted Smith of first degree murder (Pen. Code, § 187, subd. (a); count 1),1 and found true principal firearm use (§ 12022.53, subds. (d), (e)(1)) and gang allegations (§ 186.22, subd. (b)(1)(C)). The trial court imposed a 25-years-to-life sentence for the firearm enhancement, consecutive to a 25-years- to-life sentence on the murder conviction. In Smith’s first appeal, this court rejected the contentions he raised, but concluded he was entitled to benefit from Assembly Bill No. 333 (2021–2022 Reg. Sess.), which amended section 186.22 and became effective while the appeal was pending. Due to the changes in the law, we reversed the true findings on the gang enhancement and gang-related gun use enhancement. We remanded the matter to the trial court to allow the prosecution the option of retrying the enhancements and establishing all elements required by Assembly Bill No. 333. However, we rejected Smith’s argument that section 1109 entitled him to a new trial on the underlying substantive charge. On remand, the People declined to retry the gang allegations. The trial court therefore struck the section 12022.53, subdivisions (d) and (e) and section 186.22, subdivision (b)(1)(C) allegations, and the accompanying 25-years-to-life sentence, leaving in place only the 25-years-to-life sentence for first degree