Opinion
B293575
04-06-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MERU BLUE, Defendant and Appellant.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA066161) APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. Chung, Judge. Affirmed and remanded with directions. Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.
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INTRODUCTION
In a previous appeal in this case, we affirmed Anthony Meru Blue's convictions for kidnapping to commit robbery and other offenses, but remanded for resentencing to allow the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), whether to strike a 10-year firearm enhancement the court imposed under section 12022.53, subdivision (b). (People v. Russell et al. (Jan. 31, 2018, B276650) [nonpub. opn.].) On remand the trial court exercised its discretion not to strike the enhancement, and Blue again appealed.
Undesignated statutory references are to the Penal Code.
Blue contends remand is again required to allow the trial court to (1) exercise the discretion he maintains the court had to impose, instead of the 10-year firearm enhancement under section 12022.53, subdivision (b), a lesser enhancement under section 12022.5, subdivision (a); (2) exercise its discretion under recently amended section 1385 to strike a five-year enhancement for a prior serious felony imposed under section 667, subdivision (a)(1); and (3) give Blue an opportunity to show he is unable to pay certain fines, fees, and assessments the court imposed. We (and the People) agree with Blue's second and third contentions only.
FACTUAL AND PROCEDURAL HISTORY
In 2016 a jury convicted Blue of kidnapping to commit robbery, robbery, and possession of a firearm by a felon. The jury also found true the allegations that, in committing the first two offenses, Blue personally used a firearm within the meaning of section 12022.53, subdivision (b). Blue admitted he was previously convicted for a serious felony within the meaning of section 667, subdivision (a)(1). The trial court sentenced Blue to a state prison term of 29 years to life, which included a 10-year firearm enhancement under section 12022.53, subdivision (b), on the conviction for kidnapping to commit robbery and a five-year enhancement for the prior serious felony conviction under section 667, subdivision (a)(1).
The trial court also imposed and stayed execution under section 654 a 10-year firearm enhancement under section 12022.53, subdivision (b), for the robbery conviction. The firearm enhancement on that conviction is not at issue on this appeal.
Blue appealed, challenging the sufficiency of the evidence to support his conviction for kidnapping to commit robbery and contending that then recently amended section 12022.53, subdivision (h), required remand for resentencing to allow the trial court to exercise its discretion whether to strike the 10-year firearm enhancement imposed under section 12022.53, subdivision (b). We affirmed the judgment of conviction, but remanded to allow the trial court to exercise its discretion whether to strike the 10-year firearm enhancement.
The Legislature amended section 12022.53, subdivision (h), effective January 1, 2018, to give the trial court discretion to strike, in the interest of justice, a firearm enhancement imposed under section 12022.53. Subdivision (h) previously prohibited the court from striking such an enhancement. (See People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080.)
On remand the trial court exercised its discretion under section 12022.53, subdivision (h), not to strike the enhancement. Again Blue timely appealed.
DISCUSSION
A. The Trial Court Exercised Informed Discretion in Not Striking the 10-year Firearm Enhancement
Blue first contends that remand is necessary because, in determining not to strike the 10-year firearm enhancement under section 12022.53, subdivision (b), the trial court did not consider another option Blue argues the court had discretion to consider: imposing a lesser firearm enhancement under section 12022.5, subdivision (a). "'[W]hen the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.'" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Blue has not shown the trial court failed to exercise informed discretion.
Section 12022.53 sets forth three, escalating sentence enhancements for the personal use of a firearm in the commission of specified felonies, including kidnapping to commit robbery: in subdivision (b), a 10-year enhancement for the personal use of a firearm; in subdivision (c), a 20-year enhancement for the personal and intentional discharge of a firearm; and in subdivision (d), a 25-years-to-life enhancement for the personal and intentional discharge of a firearm causing great bodily injury or death. (§§ 12022.53, subds. (a)-(d), 209, subd. (b); People v. Gonzalez (2008) 43 Cal.4th 1118, 1124-1125.) "For these enhancements to apply, the requisite facts must be alleged in the information or indictment, and the defendant must admit those facts or the trier of fact must find them to be true." (Gonzalez, at pp. 1124-1125; § 12022.53, subd. (j).) Section 12022.53, subdivision (h), provides that the trial court "may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section."
In a recent case central to Blue's argument in this appeal, People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), the court held that the sentencing court had discretion under section 12022.53, subdivision (h), not only to strike an enhancement required by subdivision (d), but to impose instead an uncharged enhancement under subdivision (b) or (c) "as a middle ground to a lifetime enhancement under . . . subdivision (d)." (Morrison, at p. 223.) The court in Morrison concluded remand was appropriate because, "[a]lthough the court stated adequate reasons for declining to strike the lifetime enhancement under section 12022.53, subdivision (d), the record does not reflect whether it understood that it could impose a lesser enhancement under section 12022.53, subdivision (b) or (c) instead." (Ibid.) Blue argues for extending the holding of Morrison to recognize a sentencing court's discretion under section 12022.53, subdivision (h), not only to strike an enhancement required under subdivision (b), but to impose instead a lesser enhancement under section 12022.5, subdivision (a). Section 12022.5, subdivision (a), provides that "any person who personally uses a firearm in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment . . . for 3, 4, or 10 years, unless use of a firearm is an element of that offense." Thus, under Blue's theory, the trial court had the option of imposing a three- or four-year enhancement under section 12022.5, subdivision (a), rather than a 10-year enhancement under section 12022.53, subdivision (b).
Several courts have declined to follow Morrison on this point, and the issue is pending before the California Supreme Court. (See, e.g., People v. Tirado (2019) 38 Cal.App.5th 637, review granted Nov. 13, 2019, S257658.)
But it didn't. Blue's argument founders on the plain language of section 12022.53, subdivision (j): "When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another enhancement provides for a greater penalty or a longer term of imprisonment." (Italics added.) (See People v. Palacios (2007) 41 Cal.4th 720, 726 & fn. 4 [each of subdivision (b), (c), and (d) of section 12022.53 "declares that its enhancements 'shall' be applied '[n]otwithstanding any other provision of law,'" and "a section 12022.53 enhancement must be imposed unless the defendant is subject to a different enhancement provision that specifies a longer term," italics omitted].) Because the jury made the requisite findings for an enhancement under section 12022.53, the trial court could not impose instead a lesser enhancement under a different statute, such as section 12022.5, subdivision (a). Contrary to Blue's contention, the trial court did not have discretion to impose a three- or four-year enhancement under section 12022.5, subdivision (a), instead of the 10-year enhancement under section 12022.53, subdivision (b), and remand for resentencing on this ground is not appropriate.
The other two cases on which Blue relies, People v. Fialho (2014) 229 Cal.App.4th 1389 and People v. Dixon (2007) 153 Cal.App.4th 985, are distinguishable because in neither case was the condition in section 12022.53, subdivision (j), satisfied—i.e., no enhancement specified in section 12022.53 was properly admitted or found to be true—as it was here. (See Fialho, at pp. 1393-1395 [no section 12022.53 enhancement applied because section 12022.53 did not apply to voluntary manslaughter or attempted voluntary manslaughter]; Dixon, at p. 1001 [no section 12022.53 enhancement applied because the prosecution failed to prove the defendant used a firearm within the meaning of section 12022.53].) --------
B. Remand Is Appropriate To Allow the Trial Court To Exercise Its Discretion Whether To Strike the Prior Serious Felony Enhancement
Blue next contends, the People concede, and we agree remand for resentencing is appropriate to allow the trial court to exercise its discretion whether to strike the five-year enhancement the court imposed under section 667, subdivision (a)(1), for Blue's prior serious felony conviction. The Legislature "amended section 667, subdivision (a), and section 1385, subdivision (b), as of January 1, 2019, to allow a court to strike or dismiss a prior serious felony conviction for sentencing purposes." (People v. Zamora (2019) 35 Cal.App.5th 200, 208; see Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019.) At the time of Blue's initial sentencing in 2016, as well as his resentencing on remand in 2018, "the trial court did not have authority 'to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667.' [Citation.] Instead, the trial court was required to impose a five-year enhancement for each prior serious felony conviction. [Citation.] This change in law . . . applies retroactively to those like [Blue] whose sentences were not final when [the amendments to sections 667, subdivision (a), and 1385, subdivision (b),] became effective." (Zamora, at p. 208.) We therefore remand for resentencing to allow the trial court to exercise its discretion whether to strike or dismiss the prior serious felony enhancement.
C. Remand Is Appropriate for a Determination of Blue's Ability To Pay Fines, Fees, and Assessments
Finally, citing People v. Dueñas (2019) 30 Cal.App.5th 1157, Blue contends remand is necessary because at sentencing the trial court imposed, without determining his ability to pay, various fines, fees, and assessments under section 1465.8, Government Code section 70373, and other provisions. (See Dueñas, at p. 1168 ["the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution"].) Quoting People v. Castellano (2019) 33 Cal.App.5th 485, the People suggest that, because remand for resentencing is appropriate to allow the trial court to exercise its discretion whether to strike the prior serious felony enhancement, "this Court should also 'remand the matter to the trial court so that [Blue] may request a hearing and present evidence demonstrating his inability to pay the fines, fees and assessments imposed by the trial court.'" Blue does not object to that sound suggestion. We therefore direct that on remand the trial court give Blue the opportunity to request a hearing on and present evidence of his inability to pay the fines, fees, and assessments the trial court imposed.
DISPOSITION
The trial court's order declining to strike the 10-year firearm enhancement under section 12022.53, subdivision (b), is affirmed. The matter is remanded to allow the trial court to exercise discretion whether to strike the five-year enhancement under section 667, subdivision (a)(1), and to give Blue an opportunity to request a hearing on and present evidence of his inability to pay the fines, fees, and assessments the court imposed.
SEGAL, J. We concur:
ZELON, Acting P. J.
FEUER, J.