People v. Gonzalez CA2/1

Filed 5/20/22 P. v. Gonzalez CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B314809

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA072383) v.

JOVANNY GONZALEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Affirmed and remanded with instructions. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________

Defendant, Jovanny Gonzalez, a member of the Midtown Criminals, and his fellow gang member shot and killed a rival gang member, Armando Reyes. (People v. Gonzalez (Apr. 10, 2020, B296206) [nonpub. opn.] (Gonzalez) at pp. 3, 6.) In a tape- recorded conversation with an informant, Gonzalez said, “ ‘[W]e smoked him’ ” and confirmed Gonzalez himself was the shooter. (Id. at p. 9.) Gonzalez indicated he did not shoot Reyes’s girlfriend, who was at the scene, because his “ ‘bullets were empty.’ ” (Ibid.) This is defendant’s second appeal. In the first appeal, we reversed the conviction for the attempted murder of Reyes’s girlfriend. We affirmed Gonzalez’s numerous other convictions, including the conviction for the first degree murder of Reyes. Following remand, the People elected not to retry defendant on the second degree murder charge, and the trial court resentenced defendant. In the current appeal, defendant argues when the trial court resentenced him and imposed a Penal Code1 section 12022.53, subdivision (d) firearm enhancement, the trial court did not understand it had discretion to impose an uncharged firearm enhancement under section 12022.53, subdivision (b) or (c). Defendant argues we must remand the matter the trial court to exercise that discretion. Following People v. McDavid (2022) 77 Cal.App.5th 763 (McDavid), we conclude defendant is entitled to retroactive application of the Supreme Court’s opinion in People v. Tirado (2022) 12 Cal.5th 688 (Tirado), which held that a trial court has discretion to impose a lesser uncharged firearm enhancement. We remand the