Accordingly, in addition to correcting several prejudicial errors affecting defendant’s
sentence, we remanded the matter to permit the trial court to consider whether to strike
one or both firearm enhancements. (People v. Parra Martinez (August 22, 2019,
E070694) [nonpub. opn.].) We did not express an opinion on how the trial court should
exercise its discretion. (Ibid.) We affirmed the judgment in all other respects. (Ibid.)
1. The trial court’s decision not to strike the firearm enhancements
At the hearing on the remittitur, the court declined to strike either of the firearm
enhancements based on factors considered at the time of sentencing and reconsidered at
the time of remittitur hearing.
Defendant appealed.
DISCUSSION
On appeal, defendant argues the court abused its discretion by not striking the
firearm enhancements.
As mentioned above, the firearm enhancement provisions set forth in sections
12022.5 and 12055.53 were amended effective January 1, 2018 upon the passage of
Senate Bill No. 620. (2017-2018 Reg. Sess.; Stats. 2017, ch. 682.) The operative
amending language was the same for each statute: “The court may, in the interest of
4
justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.” (§§ 12022.5, subd. (c);
12022.53, subd. (h).) The purpose of the amendments was to eliminate the requirement
of imposing firearm enhancements without regard to the circumstances of a crime and
instead permit the trial court discretion to decide whether or not to extend a defendant’s
sentence. (Stats 2017, ch. 682, § 1.)
In People v. Pearson, Division One of the Second District held the factors the trial
court must consider when deciding whether to strike a section 12022.53 firearm
enhancement pursuant to the amendment are the same as those it is required to weigh
when handing down a sentence in the first instance. (People v. Pearson (2019) 38
Cal.App.5th 112, 117 (Pearson).) We agree. And, because the language and purpose of
authorizing the court to strike or dismiss the firearm enhancements are identical for both
section 12022.5 and12022.53, we extend Pearson’s holding concerning consideration of
initial sentencing factors to decisions whether to strike or dismiss a section 12022.5
firearm enhancement.
Included in the factors to be considered when considering sentencing on either a
section 12022.5 or a section 12022.53 firearm enhancement are those expressly set forth
in rule 4.428(b). Those are: (i) the effect that striking the enhancement would have on
the status of the crime as a strike; (ii) the accurate reflection of the defendant’s criminal
conduct on his or her record; (iii) the effect it may have on the award of custody credits;
and, (iv) any other relevant consideration. (Pearson, supra, 38 Cal.App.5th at p. 117.)
5
Also to be considered are the general objectives in sentencing (rule 4.410) as well as
circumstances in aggravation and mitigation (rules 4.421 and 4.423). (Pearson at p. 117.)
Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have
considered all the relevant sentencing factors set forth in the rules. (Pearson at p. 117;
rule 4.409.)
We review the trial court’s decision not to dismiss a firearm enhancement for an
abuse of discretion, that is, we will not disturb its ruling unless the court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest
miscarriage of justice. (People v. Williams (2013) 58 Cal.4th 197, 270-271.) If the
person attacking the sentence fails to establish the sentencing decision was irrational or
arbitrary, the trial court is presumed to have acted to achieve legitimate sentencing
objectives. (Pearson, supra, 38 Cal.App.5th at p. 116.) The decision will be upheld so
long as there is a reasonable or even fairly debatable justification under the law for the
court’s decision. (Gonzales v. Nork (1978) 20 Cal.3d 500, 507.)
Here, the record demonstrates the trial court considered the appropriate
circumstances and exercised its discretion in a reasonable manner when it declined to
strike the firearm enhancements imposed at the time of defendant’s sentencing. At the
outset of the remand hearing, the court announced it had given an “indicated ruling”
alerting the parties it was not going to strike the enhancements based on factors
considered at the time of sentencing, which it had again considered for the remand
hearing. The factors noted at the time of sentencing included the mitigating circumstance
6
that defendant had no significant prior criminal history and the aggravating facts that he
had made threats of great bodily injury and/or death, and that he was armed with and
used a weapon at the time of the offense.
At the remand hearing, the court “appreciate[d]” defendant was apologetic but
recalled he had not taken the opportunity to express remorse when he was sentenced but
had instead denied using a gun and kept trying to place the blame on the victims. The
court noted defendant did not merely have passive control over the firearm. Rather, he
held a loaded gun to a person’s head and threatened to kill them, conduct the court
deemed “very serious.” The court also found defendant had taken advantage of a
position of trust based on the girlfriend’s previous dating relationship with him. It
described the girlfriend as a particularly vulnerable victim, and recounted the facts that
defendant had taken her to a remote location where he forced her out of the car at gun
point, then actually held the gun to her head while asking if he should kill her or her
father.
Defendant posits no reasonable person could agree with the sentence imposed and,
therefore, it is reasonably probable the trial court would have stricken one or more of the
enhancements had it considered the following:
(i) The court had expressed satisfaction with a lesser sentence;
(ii) defendant did not have a serious criminal history and the particularly punitive
sentence upended his entire life;
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(iii) defendant expressed “regret” when first sentenced and made a showing of
“remorse” at the remand hearing, actions which he suggests come within the mitigating
factor set forth rule 4.423(b)(3), that is, the defendant voluntarily acknowledged
wrongdoing before arrest or at an early stage of the criminal process; and,
(iv) his conduct came within mitigation rule 4.423(a)(3), that is, the crime was
committed because of an unusual circumstance, such as great provocation, that is unlikely
to recur.
Although defendant posits the trial court would not have declined to strike the
firearm enhancements had it given proper consideration to the aforementioned subjects,
the record does not affirmatively establish that the trial court failed to consider relevant
sentencing factors set forth in the rules of court. Accordingly, we may presume those
factors were properly considered. (Rule 4.409.)
Even if there was no presumption that the sentencing factors were properly
considered, defendant would not prevail. His claim that the trial court would likely have
stricken one or both enhancements if it had considered the “information” set forth in his
brief is not supported by the record.
Defendant’s assertion that the court “was satisfied that a shorter sentence was
sufficient to fulfill the purposes of incarceration” is belied by the facts it heard arguments
by the parties with respect to the length of his sentence at the time of the original
sentencing hearing and again on remand, and declined to make any changes.
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Contrary to defendant’s claim, there is nothing in the record to suggest he comes
within rule 4.423(b)(3). He did not cite, and we have not found, any evidence he
voluntarily acknowledged any wrongdoing either when he was arrested or during an early
stage of the criminal process.
Nor does the record support defendant’s contention that the court ignored his
statement of regret contained in the probation report at his initial sentencing and
expression of remorse (made in a statement apparently submitted at the remand hearing
but which is not included in the record on appeal). At the hearing, the court explained it
had, at the time of the initial sentencing, sent the matter “back to probation” to give
defendant an opportunity to make a full statement but defendant did not express remorse
at that time. The probation officer reported defendant expressed regret about “everything
that happened.” Although he said he regretted arguing with the father and regretted being
in a relationship with the girlfriend, he added, “[b]ut one shouldn’t bring charges on
someone just because you don’t like him,” a quotation specifically considered by the
court at the remand hearing. The court appreciate[d] defendant was apologetic at the
time of the remand hearing but noted “sometimes it’s too late.”
Also lacking in merit is defendant’s argument that his crimes came within
mitigation rule 4.423 because they resulted from an unusual set of events that are not
likely to recur. He claims his conduct was an “aberration caused by [the girlfriend]
breaking up with him and [the father] preventing him from retrieving his belongings by
changing the garage lock.” He goes on to say the situation “escalated” because the
9
father’s complaint to the police resulted in a report, which defendant “tried to get
rescinded by driving with [the girlfriend] after she voluntarily got in the car and did not
take advantage of opportunities to escape or get help.” Defendant concludes that those
circumstances “will almost certainly never reoccur.”
What defendant’s “aberration” claim fails to grapple with is that it was his own ⸺
not his victims’ ⸺ conduct and reactions that caused his crimes to be committed. It was
he who reacted with fury and death threats to the inconvenience to him of his possessions
being in a locked garage when he came to collect them around 1:00 or 2:00 in the
morning after the girlfriend broke up with him the previous day. It was he who decided
to convince the girlfriend to get the police report “remove[d].” And, it was he who
undertook to “convince” the girlfriend by taking her to a remote location, brandishing a
gun, and holding it to her head while demanding she choose between him killing her or
her father. Certainly those facts are not proper fodder for finding a mitigating factor
pursuant to rule 4.423(a)(3).
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION RAMIREZ P. J. We concur:
McKINSTER J.
FIELDS J.
10
AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in declining to strike firearm enhancements under Penal Code sections 12022.5 and 12022.53, as the record demonstrates the court properly considered relevant sentencing factors and acted within its authority.
Issues
Whether the trial court abused its discretion by declining to strike firearm enhancements under Penal Code sections 12022.5 and 12022.53.
Whether the trial court failed to consider relevant mitigating factors when deciding whether to strike firearm enhancements.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The purpose of the amendments was to eliminate the requirement of imposing firearm enhancements without regard to the circumstances of a crime and instead permit the trial court discretion to decide whether or not to extend a defendant’s sentence.”
“We review the trial court’s decision not to dismiss a firearm enhancement for an abuse of discretion, that is, we will not disturb its ruling unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner”
“the record demonstrates the trial court considered the appropriate circumstances and exercised its discretion in a reasonable manner when it declined to strike the firearm enhancements imposed at the time of defendant’s sentencing.”