People v. Embry CA5

Filed 6/16/22 P. v. Embry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080697 Plaintiff and Respondent, (Super. Ct. No. 0BF160677A) v.

MONTY DUAL EMBRY, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- This matter is before us for reconsideration following the California Supreme Court’s recent decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado).

Defendant Monty Dual Embry was charged, in part, with the murder of Darrelle Robertson and assault with a firearm on Robertson’s girlfriend, J.W. With respect to the murder count, it was alleged he personally and intentionally discharged a firearm, which proximately caused great bodily injury to another person (Pen. Code, § 12022.53(d)). 1 With respect to the assault count, it was alleged he personally used a firearm (§ 12022.5, subd. (a)). The jury convicted him of second degree murder and assault with a firearm and found the enhancements true. In a bifurcated proceeding, the trial court also found true a prior serious felony enhancement allegation (§ 667, subd. (a)(1)). Embry was sentenced to an aggregate term of 83 years to life in prison. While Embry’s first appeal was pending, Senate Bill Nos. 620 and 1393 were enacted, giving trial courts discretion to strike or dismiss section 12022.5 and 12022.53 enhancements and prior serious felony enhancements, respectively. (Stats. 2017, ch. 682, §§ 1, 2; Stats. 2018, ch. 1013, §§ 1, 2; People v. Garcia (2018) 28 Cal.App.5th 961, 965, 971.) We affirmed his conviction but vacated his sentence and remanded the case for the trial court to consider striking or dismissing the firearm enhancements and the prior serious felony enhancement. Subsequently, the trial court declined to strike or dismiss any of the enhancements and reimposed the original sentence. In his second appeal, Embry claimed the trial court was unaware of its discretion to substitute, for the section 12022.53(d) enhancement, a different enhancement within the same section (§ 12022.53b) or (c)). The only section 12022.53 enhancement charged and found true by the jury was subdivision (d). In an unpublished opinion filed June 23, 2021, a majority of this court, with Justice Franson dissenting, concluded that although the trial court had the discretion to strike or dismiss that enhancement pursuant to