Opinion
F076827
06-23-2020
THE PEOPLE, Plaintiff and Respondent, v. CHAYLIN MARILY FUNEZ-CALDERON, Defendant and Appellant.
Peter J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kimberley A. Donohue, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF351761)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Peter J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Chaylin Marily Funez-Calderon appeals following her conviction of second degree murder (Pen. Code, § 187, subd. (a) ), with an enhancement for use of a deadly weapon (§ 12022, subd. (b)(1)), and hit and run driving resulting in death or serious injury (Veh. Code, § 20001, subd. (b)(2)). Appellant raises four issues in this appeal, two with respect to her trial and two with respect to her sentencing. Concerning her trial, appellant contends the prosecutor prejudicially referred to her demeanor during the trial, thereby violating her rights to effective confrontation and to not testify. Appellant also contends the jury was improperly instructed with respect to their need to unanimously agree on the act constituting murder. Concerning her sentence, appellant argues she is entitled to a remand to permit her counsel to develop a factual record concerning her future youth offender parole hearing, alternatively arguing she received ineffective assistance of counsel because such a record was not previously created. Finally, appellant argues a remand is needed so that the trial court can exercise its discretion whether to impose or strike her use of a deadly weapon enhancement. For the reasons set forth below, we affirm.
All future statutory references are to the Penal Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On May 27, 2017, appellant got into a vehicle with her boyfriend, Eddie Perez, and drove that vehicle into Eric Fisher. After the initial impact, the car proceeded through a chain link fence. Appellant reversed the vehicle again impacting Fisher, this time causing him to become lodged under the car. She then proceeded to drive away, dragging Fisher along. After driving about a block, Perez opened his door and noticed Fisher underneath the vehicle. Fisher's body dislodged from the vehicle shortly thereafter, and appellant and Perez proceeded to flee the scene. Fisher was severely injured and eventually died from his injuries. Appellant concedes these general facts were not contested at trial. Appellant's state of mind and, intent, however, were heavily disputed.
The People alleged this incident constituted first degree murder. Evidence showed that Perez had gotten into an argument with someone walking their dog on the street and that Fisher, who lived in the area, had come out, asking the two to stop. Perez left this argument and got into the car with appellant. Witnesses stated that appellant made a U-turn, accelerated toward Fisher, reaching nearly 30 miles per hour, and struck him on the sidewalk. Several people saw the impact and, as the car first backed up then drove away, began yelling at appellant, telling her to stop because Fisher was trapped underneath the vehicle. Some described appellant as either smirking or laughing as she backed up and then drove away. Perez testified that the vehicle was driving as if it was stuck or there was a flat tire.
A police reconstruction expert testified the car was travelling between 15 and 25 miles per hour, was accelerating, and did not break after striking Fisher. Further, the expert testified Fisher was near the sidewalk when struck, traveled over the vehicle, and landed either at the edge of the sidewalk or in the gutter after the initial impact. He was crouched or on his hands and knees when struck the second time.
When police identified the vehicle used in the collision, they found the tire had been replaced and that there had been attempts to clean the vehicle. Despite this, they found blood and tissue samples still on the vehicle. Friends of appellant and Perez gave conflicting views on their demeanor afterwards, but some testified the two were not particularly upset. Later conversations recorded between the two showed appellant concerned over what Perez might tell the police.
The defense argued the collision was the result of appellant panicking. At the time, appellant was 18 years old. Evidence showed that Fisher had been drinking the evening of the collision and had a blood alcohol content of 0.12 percent. Perez testified that as appellant tried to drive them away, Fisher moved into the path of the vehicle. Perez stated appellant seemed hysterical after the initial impact, and that he was immediately telling her "go, go" after the collision, not knowing that Fisher was stuck under the vehicle. When Perez finally learned Fisher had been under the vehicle, he testified both he and appellant panicked, with appellant crying and having a hard time breathing. Perez admitted the two fled to appellant's home, but claimed they were shaken. Some of the testimony from their friends confirmed they appeared visibly upset.
The defense also provided an accident expert. This expert concluded appellant began braking in the middle of the street, prior to striking Fisher. He also concluded appellant had been faced with a sudden hazard when Fisher stepped into the roadway and noted that drivers will often swerve when confronted with such situations.
Relevant to the arguments raised on appeal, during closing arguments, the People made two similar arguments appellant contends were improper. The first occurred after returning from a brief recess. Prior to the break, the prosecutor had laid out a lengthy and detailed argument covering the facts of the case and contending that appellant struck Fisher with her car in an intentional act of revenge because she felt disrespected by his conduct. Upon returning, the prosecutor briefly recounted more facts regarding Fisher being dragged under the car before stating:
"Most likely with the maneuver there, she dislodged him. From then, went on with her daily life, watching movies, washing her dog, expressing no remorse at all, including during this trial. The only display of emotions by the defendant --
"[DEFENSE COUNSEL]: Your Honor, I'm going to object.· That's improper comment.
"[PROSECUTOR]: Was during --
"THE COURT: Overruled.
"[PROSECUTOR]: The only display of emotions by the defendant was during Eddie Perez's this morning, and watching Eddie Perez's video.
"[DEFENSE COUNSEL]: I object. That's improper.
"THE COURT: Overruled.
"[PROSECUTOR]: No emotion. Laughing away from the scene of having just knocked someone underneath her car. Revenge is what this case is about. You heard from Francisco Alvarado. You saw his hesitation. He was afraid of retaliation. He was afraid of revenge and revenge in her mind."
Later, in rebuttal, the prosecutor made a similar statement in the context of another lengthy description of the facts of the case. At the conclusion of that line of argument, the prosecutor stated:
"And then you have the fact that at the end of the call she again says, 'I've been thinking about it all day. Did you give them any details?' Because she knew that if there were details that were given, that she would be found guilty here in court today.
"And then you have her demeanor through the entire trial here. Her coldness, her callousness, her lack of emotion.
"[DEFENSE COUNSEL]: Your Honor, I'm going to object.
"THE COURT: Overruled."
Following argument, the jury was instructed on the law. In the course of those instructions, the court explained to the jury they "may not find the defendant guilty of first-degree murder unless all of you agree that the People have proved the defendant committed first-degree murder," and, in the context of the hit and run charge, they may "not find the defendant guilty unless all of you agree that the People have proved that the defendant failed to perform at least one of those required duties." Later, before releasing the jury to deliberate, the court explained that "of course, any verdict has to be unanimous. All 12 of you must agree. If there's a guilty verdict for murder, then it has to be agreed, once again, unanimously whether it's first- or second-degree murder." It reiterated this point on the lesser charge of voluntary manslaughter, stating: "Once again, it must be unanimous." No greater unanimity instruction was given.
The jury ultimately rejected the first degree murder charge, instead convicting on the lesser included offense of second degree murder but also finding true the allegation the murder was committed with the use of a deadly weapon. It also convicted appellant of the hit and run charge. Appellant was ultimately sentenced to an indeterminate term of 15 years to life for the second degree murder conviction, with an additional one-year determinate term for the use of a deadly weapon. A three-year sentence on the hit and run charge was stayed.
This appeal timely followed.
DISCUSSION
As noted above, appellant raises two issues with respect to her trial and two with respect to sentencing. I. Prosecutor's Reference to Appellant's Demeanor Was Harmless
First, appellant argues that the two references the prosecutor made to her demeanor during trial constituted prejudicial violations of her constitutional rights. Appellant contends prejudice is shown in this case because the jury was presented with two plausible explanations for appellant's conduct and the record shows that it was a close case as to which was proven. Appellant notes that in at least two instances during trial, speculative evidence on appellant's state of mind elicited by the prosecution was struck after an objection and claims this furthered the impact of the prosecutor's statements. Appellant then points to the fact that the jury had to deliberate for six hours to reach its verdict, despite a limited set of contested issues, and requested a readback of testimony and further instructions on the issue of malice to add support to the claim of prejudice. The People argue the statements were ambiguous or generally in a context that informed the jury they should disregard any emotion shown during trial. However, even if error were found, the People argue such error was harmless. We agree with the People that any alleged error was harmless.
A. Standard of Review and Relevant Law
"Defendant is correct that a prosecutor may not comment on a defendant's demeanor or behavior during the guilt phase unless it is to tell the jury to ignore a defendant's demeanor or behavior." (People v. Houston (2012) 54 Cal.4th 1186, 1223.) "'In criminal trials of guilt, prosecutorial references to a nontestifying defendant's demeanor or behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendant's right not to testify. (3) Consideration of the defendant's behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character.'" (People v. Boyette (2002) 29 Cal.4th 381, 434.)
"'"A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.'"'" (People v. Tully (2012) 54 Cal.4th 952, 1009.) A prosecutor's misconduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Id. at pp. 1009-1010.)
We review de novo a defendant's claim of prosecutorial misconduct. (People v. Uribe (2011) 199 Cal.App.4th 836, 860.)
B. Alleged Error Was Harmless
Appellant's arguments raise allegations that the prosecutor's conduct was improper under several constitutional principles. The People dispute that any error occurred, alleging the prosecutor was not actually commenting on appellant's demeanor or was effectively telling the jury that demeanor during trial was irrelevant. In context, we do not see the prosecutor's comments as innocuous as the People suggest we should. Rather, it appears the prosecutor was attempting a thematic argument that all of appellant's conduct was consistent with a lack of compassion for her victim.
We need not, however, specifically resolve whether an error occurred, or whether the error rose to the level of constitutional concern, as we conclude that any error was harmless beyond a reasonable doubt. The record contains substantial and credible evidence demonstrating appellant intended to strike Fisher with her vehicle. This included evidence that appellant entered the car after Fisher's argument with Perez and, instead of driving away, made a U-turn and drove toward Fisher. Witnesses then described how appellant drove toward Fisher and struck him on the sidewalk, drove past him, then reversed, striking him again, and drove away, dragging his body behind. During this time, several witnesses testified that bystanders were yelling at appellant about her conduct. Although disputed, additional evidence suggested appellant did all this in a calm manner, suggesting her conduct was intentional.
Despite this evidence, appellant contends the case remained close because the jury deliberated for an extended period of time and asked for additional readbacks and instructions related to the contested issues. We do not agree that this demonstrates the conviction for second degree murder was close. Rather, in this context we note that the People originally charged appellant with first degree murder. Against this charge, appellant argued the killing was the product of Fisher's conduct and appellant's panicked reaction. The jury, in convicting of second degree murder, necessarily considered appellant's state of mind and rejected both the prosecutor's argument that she formed the specific intent required for first degree murder and the defense argument that this was an accident. The jury's result indicates the bounds of its deliberative process and fairly demonstrates it took its charge seriously and weighed the competing evidence regarding the narratives provided to it, not that it was a particularly close case.
Against this backdrop of substantial evidence and indications the case was not particularly close on the second degree murder charge, we also consider the fleeting nature of the prosecutor's comments. Although potentially problematic in content, the prosecutor only made two brief references to appellant's demeanor, did not directly ask the jury to consider that demeanor as evidence of guilt (although the implication could reasonably be seen), and did not indicate in any way that appellant's decision not to testify should be held against her. Contrasted with the extended discussion of the facts of the case, these references were not central to the prosecution's theme.
Accordingly, upon review of the record, we readily conclude that any error that arose from the prosecutor's comments was harmless beyond a reasonable doubt due to the overwhelming evidence of guilt. (See Houston, supra, 54 Cal.4th at p. 1223 [overwhelming evidence of guilt showed error was harmless]; Boyette, supra, 29 Cal.4th at pp. 434-435 [fleeting nature of comments part of determination error was harmless].) II. Trial Court Was Not Required to Provide an Additional Unanimity Instruction
Appellant's second contention is that the trial court erred by failing, sua sponte, to give an additional instruction concerning the unanimity requirement for conviction. Appellant contends that the record shows there were two distinct acts that could form the basis for a murder conviction (either initially striking the victim or later driving away with the victim stuck under the car) and, thus, the jury was required to agree as to which act supported the conviction. The People respond that the jury must merely agree on the theory and that there is a single continuing course of conduct supporting their theory for the murder charge. The People again argue any potential error was harmless.
A. Standard of Review and Relevant Law
"In a criminal case, a jury verdict must be unanimous. [Citations.] ... Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)
"The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a 'particular crime' [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. [¶] In the first situation, but not the second, it should give the unanimity instruction." (Russo, supra, 25 Cal.4th at p. 1135.)
We review a claim of instruction error under the de novo standard of review. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570.)
B. Record Did Not Require Additional Unanimity Instruction
Appellant's argument for a specific unanimity instruction requires accepting that the conduct described in this case consists of multiple potentially criminal acts rather than a single course of conduct constituting a criminal act. We do not agree the conduct in his case can be parsed so finely, and conclude the discussion in Russo demonstrates that no additional unanimity instruction was required.
As explained in Russo, the "requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" (Russo, supra, 25 Cal.4th at p. 1132.) However, "where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (Ibid.) Focusing on the crimes of bribery and burglary, where multiple discrete acts could readily support multiple charges, the court in Russo explained the need to ensure the jury convicted on a specific course of conduct, as opposed to agreeing some bribery or burglary act occurred but not agreeing on which one. (Id. at pp. 1132-1133.) Russo's discussion of multiple acts of burglary, one occurring on a Tuesday at one house and another on Wednesday at a different house, provided a clear indication of the difference between multiple act allegations and single theory allegations. (Id. at p. 1133.)
With this understanding, it is apparent how appellant's citation to People v. Jones (1990) 51 Cal.3d 294 is distinguishable. In People v. Jones, a child sexual assault case, the charges focused upon an allegation that one or more distinct criminal acts occurred on multiple days, but within a specified time period defined by the statue. (Id. at pp. 300-301.) In that context, the court explained that the unanimity instruction designed for such cases should be given where the jurors might disagree as to the particular acts the defendant committed within that timeframe but was not required where the case did not require the jury to distinguish between acts, but merely accept or reject the allegations. (Id. at p. 321.)
This case does not require the identification of specific acts in the course of appellant's conduct in order to properly convict her of murder. Rather, the question presented to the jury was whether her relatively brief and uniform course of conduct resulted in Fisher's death and whether she had the requisite state of mind to be convicted of murder during that course of conduct. To suggest the jury had to identify when in that conduct her intent first arose - i.e. whether she intended to kill at the first strike, when she backed up, or when she drove away - attempts to treat a uniform course of conduct as if it is a separate number of burglaries over multiple days. We see nothing in the law or facts of this case that required such parsing and, thus, conclude no additional specific unanimity instruction was required. III. A Franklin Remand Is Not Required
Third, appellant claims she is entitled to a remand for a Franklin hearing, so that she can prepare a record for her future youth offender parole hearing. Although recognizing she is in a different factual position than those typically afforded a remand, because the youth offender parole hearing law was in place at the time of her conviction and sentencing, appellant contends her probation report and related sentencing arguments are not sufficient to present her arguments. To the extent a remand is not appropriate, therefore, appellant alleges ineffective assistance of counsel for failure to insist upon a formal Franklin hearing. The People respond that appellant had a full opportunity to present her parole eligibility facts and that there is no indication of deficient performance or prejudice that would support an ineffective assistance claim.
People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
A. Standard of Review and Relevant Law
The youth offender parole hearing law is a provision enacted in 2014 that retrospectively applied "to all eligible youth offenders regardless of the date of conviction." (Franklin, supra, 63 Cal.4th at pp. 276-278.) Because of the retroactive nature of the law, the need to provide an opportunity to present evidence for use at the later parole hearings became evident. Thus, in Franklin, our Supreme Court determined it was necessary to remand cases of those convicted and sentenced before the law passed for the limited purpose of determining whether or not the juvenile offender "was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.)
This was done because the youth offender parole hearing was to "provide for a meaningful opportunity to obtain release" (§ 3051, subd. (e)), the statutory scheme "contemplate[s] that information regarding the juvenile offender's characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board's consideration" (Franklin, supra, 63 Cal.4th at pp. 283-284, citing § 3051, subd. (f)), and it was "not clear" whether the juvenile offender in Franklin "had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Id. at p. 284.)
With respect to ineffective assistance of counsel claims, "a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. (Strickland v. Washington (1984) 466 U.S. 668 ....) To demonstrate deficient performance, [the] defendant bears the burden of showing that counsel's performance '"'"fell below an objective standard of reasonableness ... under prevailing professional norms."'"' (People v. Lopez (2008) 42 Cal.4th 960, 966 ....) To demonstrate prejudice, [the] defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).)
"On appeal, we do not second-guess trial counsel's reasonable tactical decisions." (People v. Lucas (2014) 60 Cal.4th 153, 278, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.) "[The] defendant's burden [is] 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction ... on direct appeal only if there is affirmative evidence that counsel had '"'no rational tactical purpose'"' for an action or omission." (Mickel, supra, 2 Cal.5th at p. 198.)
We review both claims de novo. (See People v. Medrano (2019) 40 Cal.App.5th 961, 966-968 (Medrano) [applying de novo review to Franklin request]; People v. Tapia (2018) 26 Cal.App.5th 942, 950 [ineffective assistance claim].)
C. Appellant Had Sufficient Opportunity to Make Record
As appellant concedes, in this case that she "is not in the same position as the defendant in Franklin, since section 3051 was passed well before she was sentenced." Yet appellant contends the lack of a thorough record on her fitness for parole in the future demonstrates a remand remains necessary. We do not agree.
Remand is not required because, "unlike the defendant in Franklin[, supra, 63 Cal.4th 261], [appellant] was not sentenced at a time when youth offender parole hearings were not yet part of California law." (People v. Woods (2018) 19 Cal.App.5th 1080, 1088.) At the time of her sentencing, section 3051 applied to offenders like appellant, and section 4801, subdivision (c), "already identified the various factors to be considered at a youth offender parole hearing." (See Woods, supra, at p. 1088.) Thus, appellant "had both the opportunity and incentive to put information on the record related to a future youth offender parole hearing." (Id. at p. 1089; see Medrano, supra, 40 Cal.App.5th at p. 967 [noting "it appears that he merely failed—whether by choice or by inadvertence—to exercise" right to present evidence].)
Indeed, the existence of this law was well known to counsel, who submitted a sentencing brief referencing the law and noting appellant would be entitled to a future hearing if sentenced to a life term. In addition, counsel submitted several letters on appellant's behalf from those that knew her, noted at sentencing that she was subject to the youthful offender laws, and discussed her youth in terms of mitigating factors. It is thus apparent that appellant was provided an opportunity to provide relevant evidence regarding her future youth offender parole hearing and that counsel made a decision as to how much evidence to present. Under these circumstances, there is no basis for a Franklin remand. (Woods, supra, 19 Cal.App.5th at p. 1089; see also Medrano, supra, 40 Cal.App.5th at p. 968.)
D. Appellant Has Not Demonstrated Ineffective Assistance of Counsel
Appellant continues, however, to argue that the lack of a specific Franklin hearing and additional evidence demonstrates her counsel was ineffective, contending there could be no valid tactical reason for counsel not to request a full hearing. We do not agree.
There is at least one recognizable tactical reason not to request a full hearing, the inability to generate additional evidence that could not be presented through the sentencing process. While it is true that appellant would qualify for a future hearing, and thus may have had substantial evidence of youthful indiscretion available, it is equally possible that the evidence counsel presented was the best counsel could generate at the time or that additional evidence was duplicative or irrelevant to the factors counsel identified.
In addition, we note that appellant has identified no specific additional and beneficial information relevant to the youth offender parole hearing that was available but not presented. Without such additional information, it is not possible to say that any error on counsel's part was prejudicial. Counsel recognizes this problem, but argues such a "requirement is not easily translatable to the Franklin situation." We do not agree. As nothing precludes appellant from preparing for a future hearing by continuing to gather information, it is incumbent to demonstrate some prejudice in failing to do so now to demonstrate ineffective assistance of counsel where counsel clearly acknowledged the relevant factors but tactically chose not to present additional evidence. Indeed, in this context we note that our Supreme Court has recently held that a youthful offender whose conviction and sentence are final may file a motion under section 1203.011 to make a record of youth-related mitigating evidence. (In re Cook (2019) 7 Cal.5th 439, 446-447.) IV. Remand Is Not Appropriate Under Section 12022 , Subdivision (B)(1)
Finally, appellant contends the trial court prejudicially erred because it did not understand it had the authority to strike the use of a deadly weapon enhancement applied under section 12022, subdivision (B)(1). Appellant notes that none of the relevant sentencing documents identified the court could strike the enhancement, that there is only one published case, People v. Jones (2007) 157 Cal.App.4th 1373 (Jones), holding the court has that authority, and that the statute is written in a manner that suggests the court does not have the authority to strike the enhancement. Appellant argues that the trial court's failure to identify its discretion demonstrated it was unaware of the authority and therefore abused its discretion by failing to properly consider whether to strike the enhancement. While the People agree that the court had discretion to strike the enhancement, they note there is no indication the court was unaware of that authority or would have acted differently had it been requested to.
A. Standard of Review and Applicable Law
On this issue, appellant recognizes that published case law confirms the court's authority to strike her use of a deadly weapon enhancement. (Jones, supra, 157 Cal.App.4th at p. 1383.) This authority is statutorily derived and has been discussed heavily in the case law generally. One widely known example is People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 518, which explained, in detail, that "the judicial power to reduce a defendant's sentence by striking a sentencing allegation in furtherance of justice is statutory. Because the power is statutory, the Legislature may eliminate it. [Citations.] To do so, the Legislature need not expressly refer to section 1385. [Citation.] This does not mean, however, that any statute defining the punishment for a crime can be read as implicitly eliminating the court's power to impose a lesser punishment by dismissing, or by striking sentencing allegations, under section 1385. This is because the statutory power to dismiss in furtherance of justice has always coexisted with statutes defining punishment and must be reconciled with the latter. [Citation.] For this reason, we will not interpret a statute as eliminating courts' power under section 1385 'absent a clear legislative direction to the contrary.'"
Generally, a court is presumed to have understood and applied the law and, as our Supreme Court has stated, even in cases with conflicting published opinions on whether authority to strike exists, "in the absence of any affirmative indication in the record that the trial court committed error or would have exercised discretion under section 1385 to strike ... if it believed it had such discretion, relief on appeal is not appropriate." (People v. Fuhrman (1997) 16 Cal.4th 930, 944, 945.)
As to whether the court properly understood its discretion, "'"the determination of whether the trial court selected the proper legal standard[ ] in making [a discretionary] determination is reviewed de novo."'" (Daws v. Superior Court (2019) 42 Cal.App.5th 81, 86.)
B. Language of Section 12022 Does Not Suggest Lack of Discretion
Although recognizing the People's argument that appellant must show the court misunderstood its discretion, appellant contends this principle does not apply because "the express terms of Penal Code section 12022, subdivision (b)(1) appear to preclude the striking of the enhancement." Appellant contends this fact, coupled with the fact there is only one published case holding the court had such discretion, "makes a prima facie case that the trial court would not have recognized that it had such discretion." We do not agree.
The court in Jones considered whether the plain language of section 12022, subdivision (b) precluded striking the enhancement in light of later language in subdivision (f) that did not mention subdivision (b) within the court's authority to strike an enhancement. There, the court wrote: "[I]n light of the well-established case law referenced above that even mandatory language requiring imposition of a sentencing enhancement is insufficient, standing alone, to strip a court of its discretion to strike an enhancement, it is difficult to understand how, as a matter of both logic and statutory construction, language that simply confirms the court's authority to strike enhancements in particular situations could be an adequate basis on which to conclude the court has been deprived of its power to do so in other circumstances." (Jones, supra, 157 Cal.App.4th at p. 1381.) The court then continued to consider the legislative history of the statute, ultimately finding no reason why the longstanding ability to strike enhancements in the interest of justice would not apply. (Id. at pp. 1382-1383.)
We agree with the analysis in Jones that the well-settled authority to strike enhancements in the interest of justice is not precluded by the language of section 12022, subdivision (b). Moreover, we note that our research has uncovered no case law suggesting the opposite. Thus, we conclude that it is wholly appropriate to apply the standard presumption that the court understood and considered its discretion where the record does not demonstrate otherwise. As we see nothing in the record suggesting the court affirmatively misunderstood its authority, we conclude appellant has demonstrated no error.
DISPOSITION
The judgment is affirmed.
SMITH, J. WE CONCUR: LEVY, Acting P.J. SNAUFFER, J.