People v. Smith CA2/4

Filed 1/5/21 P. v. Smith CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, B304928

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA098545) v.

DAVID JACOB SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Affirmed. Ava Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

After affirming appellant David Smith’s murder and assault convictions, we remanded his case so the trial court could exercise its discretion to retain or strike a firearm enhancement under Penal Code section 12022.53, subdivision (h).1 At the resentencing hearing, the trial court declined to strike the section 12022.53, subdivision (d) enhancement, leaving appellant’s aggregate sentence of 40 years to life unchanged. Appellant contends the trial court abused its discretion not by failing to strike the enhancement, but by failing to consider imposing instead a lesser enhancement under section 12022.53, subdivisions (b) or (c). We agree with respondent Attorney General that appellant forfeited this claim by failing to bring the putative error to the trial court’s attention and affirm. BACKGROUND The facts and procedural history underlying appellant’s convictions are set forth in our prior opinion, People v. Smith (Jan. 8, 2019, B283278) [nonpub. opn.]. For purposes of this appeal, it is sufficient to state that appellant was convicted of second degree murder (§ 187) and assault with a firearm (§ 245, subd. (a)(2)) after he and his brother engaged in an altercation with two individuals on a public sidewalk. The parties exchanged words and blows before appellant pulled a gun and fatally shot victim Christopher Lane twice in the back and once in the cheek. The jury rejected a gang enhancement (§ 186.22, subd. (b)(1)(C)) but found true an allegation that appellant or a principal personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subds. (d) &