People v. Collins CA3

Filed 4/25/22 P. v. Collins CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092929

Plaintiff and Respondent, (Super. Ct. No. 06F07216)

v.

DENISHO DEMMETRIUS COLLINS,

Defendant and Appellant.

This case comes to us for the fourth time on appeal.1 Defendant Denisho Demmetrius Collins appeals the trial court’s order denying his motion to strike a 20-year firearm enhancement (Pen. Code, § 12022.53, subd. (c))2 after this court remanded the matter for resentencing on the enhancement following the passage of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2) while defendant’s second appeal was

1 The record on appeal incorporates the records, including our prior opinions, in defendant’s three previous appeals in case Nos. C062398, C083771, and C091738. 2 Further undesignated statutory references are to the Penal Code.

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pending. He argues the trial court abused its discretion in denying his motion to strike the enhancement because the court based its decision on an erroneous factual finding that he acted as a leader during the gang shooting that resulted in an accomplice’s death. He further contends the shooting was not more dangerous than other gang shootings, and that the trial court failed to properly consider defendant’s crime-producing background in mitigation. Alternatively, he contends the matter should be remanded to allow the trial court to exercise its discretion to impose a 10-year, lesser firearm enhancement also found true by the jury (§ 12022.53, subd. (b)), and that if his counsel forfeited any appellate arguments, he received ineffective assistance of counsel. Finding no merit to defendant’s contentions, we shall affirm. FACTUAL AND PROCEDURAL BACKGROUND A jury found defendant guilty of the first degree murder of David Perkins (§ 187, subd. (a), count one), after hearing evidence that Perkins, defendant, and others set out to avenge the killing of a fellow gang member. Defendant was also found guilty of unlawful possession of an assault weapon (§ 12280, subd. (b), count two), and being a felon in possession of a firearm (§ 12021, subd. (a), count three). The jury found true that during the commission of the murder defendant personally used and discharged a firearm (§ 12022.53, subds. (b) & (c)), and that he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). For the murder conviction, defendant was sentenced to 25 years to life plus a consecutive 20 years for the firearm enhancement and a consecutive 10 years for the gang enhancement. In defendant’s first appeal, we ordered the 10-year gang enhancement stricken and replaced with a minimum parole eligibility of 15 years under section 186.22, subdivision (b)(5); in all other respects we affirmed the judgment. (People v. Collins (May 9, 2011, C062398) [nonpub. opn.].) Defendant was thus left with a sentence of 25 years to life, plus 20 years on the firearm enhancement under section 12022.53, subdivision (c), and three additional years on the determinate counts.