People v. Ballard CA1/3

Filed 6/1/22 P. v. Ballard CA1/3 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A155287 v. (City & County of San Francisco TRUMILLION BALLARD, Super. Ct. Nos. 12018288, 221133-02) Defendant and Appellant.

OPINION ON TRANSFER1 A jury found defendant Trumillion Ballard guilty of, among other things, first degree murder (§ 187, subd. (a)), and it found true a firearm enhancement that Ballard “personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury.” (§ 12022.53, subd. (d); People v. Ballard (Feb. 22, 2021, A155287) [nonpub. opn.], review granted May 12, 2021, and cause remanded Apr. 27, 2022, S267308 (Ballard).) In August 2018, the trial court sentenced Ballard to 50 years to life in prison — 25 years to life for the first degree murder conviction and a consecutive 25

We resolve this case by memorandum opinion pursuant to California 1

Standards of Judicial Administration, section 8.1, reciting only those facts necessary to resolve the issue raised. Undesignated statutory references are to the Penal Code. 1

years to life for the firearm enhancement. (Ballard, A155287.) Without stating its reasons, the court rejected Ballard’s request that it exercise its discretion under section 12022.53, subdivision (h) to strike the firearm enhancement. (Ballard, A155287.) Ballard appealed, arguing remand was necessary for the trial court to consider whether to exercise its discretion to strike the section 12022.53, subdivision (d) firearm enhancement carrying a term of 25 years to life, and to impose a lesser, 10-year or 20-year enhancement under subdivisions (b) or (c). (Ballard, supra, A155287, rev.gr.) We rejected this argument in our prior opinion, concluding the court lacked the discretionary authority to strike a firearm enhancement and impose a lesser enhancement that was not found true. (Ibid.) The California Supreme Court granted review, then transferred the matter to this court with directions to vacate our decision and reconsider the cause in light of its decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado). Based on Tirado, we now agree remand for resentencing is necessary. There are three firearm enhancements under section 12022.53 — a 10- year enhancement for personal use of a firearm (id., subd. (b)); a 20-year enhancement for the personal and intentional discharge of a firearm (id., subd. (c)); and a 25-years-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death to a person other than an accomplice (id., subd. (d)). At sentencing, the trial court may, in the interest of justice, strike or dismiss an enhancement it was otherwise required to impose. (Id., subd. (h).) The court may impose any enhancement if “the existence of any fact required under subdivision (b), (c), or (d)” is