People v. Sams CA5

Filed 6/15/22 P. v. Sams CA5 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F080738 Plaintiff and Respondent, (Super. Ct. No. F14906439) v.

VANCE EUGENE SAMS, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge. Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Levy, J. and Detjen, J.

INTRODUCTION This case is before us for the third time after a jury found defendant Vance Eugene Sams, Jr., guilty of second degree murder (Pen. Code,1 § 187, subd. (a)) and found that he personally and intentionally discharged a firearm in the commission of the offense (§ 12022.53, subd. (d)). For the offense of murder, defendant was sentenced to a term of 15 years to life, with a consecutive term of 25 years to life for the firearm enhancement. In his first appeal, we affirmed the judgment but remanded for the trial court to make corrections to the abstract of judgment and to consider whether to exercise its newly afforded discretion to strike or dismiss the firearm enhancement (§ 12022.53, subd. (h)) under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2). (People v. Sams (June 26, 2019, F074751) [nonpub. opn.] (Sams).)2 On remand, the trial court declined to strike the firearm enhancement. In his second appeal, defendant asserted the trial court was unaware it possessed discretion to replace the firearm enhancement imposed pursuant to section 12022.53, subdivision (d) with a lesser included, uncharged firearm enhancement under section 12022.53, subdivision (b) or (c). Defendant argued remand was necessary for the court to exercise its discretion as to whether to impose a lesser included firearm enhancement. In our second opinion, we held that section 12022.53, subdivision (h) does not permit a court to impose a lesser firearm enhancement that was not charged or found true by the jury. Accordingly, we affirmed. The California Supreme Court granted defendant’s petition for review (S269706). The state high court thereafter issued its opinion in People v. Tirado (2022) 12 Cal.5th 688 (Tirado), holding that the discretion afforded by section 12022.53, subdivision (h)