People v. Lucero CA5

Filed 12/7/20 P. v. Lucero CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F079788 Plaintiff and Respondent, (Super. Ct. No. CRF44425) v.

CHERYL LYNN LUCERO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Smith, J. and Meehan, J.

Defendant Cheryl Lynn Lucero stands convicted of first degree murder with a firearm enhancement. On appeal, defendant contends that the trial court failed to exercise its discretion to strike the 25-years-to-life firearm enhancement and impose a lesser enhancement. The People argue the trial court had no such discretion and, in any event, would not have stricken the 25-years-to-life firearm enhancement and imposed a lesser firearm enhancement even if it had the discretion to do so. We affirm. PROCEDURAL SUMMARY1 The Tuolumne County District Attorney charged defendant with the murder of Rick Roberts and alleged various firearm enhancements. (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a), 12022.53, subds. (b)–(d).)2 The jury found defendant guilty of first degree murder and determined that she personally and intentionally discharged a firearm, resulting in Roberts’s death. (§ 12022.53, subd. (d).) The jury did not make findings on the lesser firearm enhancements. The trial court sentenced defendant to a term of 25 years to life for murder and a consecutive term of 25 years to life for the firearm enhancement. On January 23, 2019, we vacated defendant’s sentence and remanded for resentencing in light of Senate Bill No. 620 (2017–2018 Reg. Sess.; Stats. 2017, ch. 682, § 1), which granted trial courts the discretion to strike firearm enhancements if justice so requires. (§§ 12022.5, subd. (c), 12022.53, subd. (h).) On August 2, 2019, the trial court declined to strike the 25-years-to-life firearm enhancement and reimposed the original sentence. On August 7, 2019, defendant filed a notice of appeal.