People v. King CA4/1

Filed 11/4/22 P. v. King CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079419

Plaintiff and Respondent,

v. (Super. Ct. No. FVI19001037)

PAUVEY JUANE KING,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino, Debra Harris, Judge. Affirmed. Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Warren J. Williams, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Pauvey Juane King of one count of murder (Pen.

Code,1 §§ 187, subd. (a) & 189, subd. (a) [victim M.S.]); and two counts of attempted murder (§§ 664, subd. (a), 187, subd. (a), & 189, subd. (a); [victims T.T. and A.S.]). The jury also found true multiple charged firearm enhancements as to each offense. In April 2021, the trial court sentenced King on the three substantive offenses and imposed the most severe firearm enhancement found true for each count. The court stayed the remaining firearm enhancements. On appeal, King contends that the case must be remanded for resentencing because the court was not aware of its discretion to impose the less severe firearm enhancements under People v. Tirado (2022) 12 Cal.5th 688 (Tirado), which was decided after King’s sentencing and held that a court may strike a section 12022.53 firearm enhancement and impose a lesser uncharged section 12022.53 enhancement. The People argue, among other things, that King forfeited the issue. We conclude that while King did not forfeit his opportunity to challenge the imposition of firearm enhancements, remand is unwarranted. The court was aware of its discretion to impose less severe firearm enhancements because, unlike in Tirado, those lesser enhancements were charged in the information as to each individual count, the jury found each of them to be true, and the court expressly stayed the lesser enhancements in favor of imposing the most severe enhancement for each count. Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND The three victims, two brothers (A.S. and M.S.) and their friend (T.T.), went to a house party in Victorville, California, on the night of April 5, 2013. A.S. was 13 years old at the time, and his brother M.S. and T.T. were both 17