California Court of Appeal Nov 10, 2021 No. E075901Unpublished
Filed 11/10/21 P. v. Torres CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
Plaintiff and Respondent.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed; remanded with directions.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and
Respondent.
1
This is defendant and appellant David Jerry Torres’s second appeal. He appeals
after the trial court declined to exercise its discretion under Penal Code1
section 12022.53, subdivision (h), to strike his firearm enhancement. On appeal,
defendant argues the matter should be remanded again because the sentencing court
failed to orally pronounce the sentence during the resentencing hearing and also because
granted Apr. 22, 2020, S260819.) The court in Morrison, supra, 34 Cal.App.5th 217,
held that the amended statute provided authority for the court to strike an enhancement
under section 12022.53, subdivision (d), and impose an uncharged enhancement under
section 12022.53, subdivision (b) or (c). (Morrison, at pp. 222-223.)
6
The court in People v. Tirado (2019) 38 Cal.App.5th 637, review granted
November 13, 2019, S257658, disagreed with the court in Morrison, noting that
“[n]othing in the plain language of sections 1385 or 12022.53, subdivision (h) authorizes
a trial court to substitute one enhancement for another.” (Tirado, at p. 643.) Thereafter,
this court in Yanez, supra, 44 Cal.App.5th 452, agreed with the court in Tirado. (Yanez,
at p. 458.) In doing so, the panel disagreed with Morrison and held that section 12022.53
“does not afford any” discretion to impose a lesser firearm enhancement, and declined
“to remand the matter for resentencing on the ground that the trial court has newly
granted discretion to impose a lesser, uncharged enhancement.” (Yanez, at pp. 458, 460.)
This court explained, “under a plain reading, the Legislature’s use of the words ‘strike’ or
‘dismiss’ indicates the court’s power pursuant to these sections is binary. [Citation.]”
(Yanez, at p. 459.) This court additionally “decline[d] to adopt an interpretation of
section 12022.53, subdivision (h) which would vest the trial court with discretionary
power to essentially modify a charge brought by the prosecutor despite sufficient
evidence to support such a charge.” (Id. at p. 460.)
Most recently, the court in People v. Garcia (2020) 46 Cal.App.5th 786,
review granted June 10, 2020, S261772, also agreed with the court in Tirado “that
section 12022.53, subdivision (h) does not grant a trial court the discretion to substitute
lesser included firearm enhancements, at least where the greater enhancement is legally
and factually valid.” (Garcia, at pp. 790-791.) The court posited three reasons for
reaching that conclusion. First, the plain language of the statute was unambiguous,
7
granting courts discretion solely to strike or dismiss a firearm enhancement. (Id. at
p. 791.) Second, the separation of powers vested the executive branch with the exclusive
power to choose which enhancements to charge. (Id. at pp. 791-792.) Third, where
substantial evidence did not support instructing the jury on lesser included enhancements,
the court could not substitute a lesser included enhancement. (Id. at p. 792.)
We agree with the reasoning and holdings in Tirado, Yanez, and Garcia. Thus,
since defendant does not challenge the sufficiency of the evidence to support the
section 12022.53, subdivision (d) enhancement, and the sentencing court expressly
indicated the evidence supported it, the court is without authority to reduce the
enhancement to a lesser uncharged firearm enhancement.
III
DISPOSITION
The conviction is affirmed. The matter is remanded for pronouncement of
sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
RAMIREZ P. J.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a trial court must orally pronounce a sentence after a remand, but it lacks the legal authority to impose a lesser, uncharged firearm enhancement under Penal Code section 12022.53, subdivision (h).
Issues
Whether a trial court is required to orally pronounce a sentence following a remand for resentencing.
Whether a trial court has the discretion to impose a lesser, uncharged firearm enhancement under Penal Code section 12022.53, subdivision (h).
Disposition. Affirmed; remanded with directions.
Quotations verified verbatim against the opinion
“In a criminal case, judgment is rendered when the trial court orally pronounces sentence.”
“We agree that the matter must be remanded for the court to orally pronounce sentence but disagree that the court has discretion to impose a lesser uncharged firearm enhancement.”