Opinion
F077695
10-01-2019
THE PEOPLE, Plaintiff and Respondent, v. MARCELLE DEVON GRAY, Defendant and Appellant.
Matthew H. Wilson, 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, Louis M. Vasquez, Ian Whitney, Amanda D. Cary, and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F12908580)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. Matthew H. Wilson, 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, Louis M. Vasquez, Ian Whitney, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
-ooOoo-
An amended information charged appellant Marcelle Devon Gray and codefendant Robert Kelso with: assaulting Anthony Welch (Welch) with a firearm (count 1 - Pen. Code, § 245, subd. (a)(2)); assaulting Mark Panopio (Panopio) with a firearm (count 2 - § 245, subd. (a)(2)); possessing a firearm as a felon (counts 3 and 4 - § 12021, subd. (a)(1)); and street terrorism (count 5 - § 186.22, subd. (a)). The information also alleged that in the commission of the assaults, appellant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)) on Welch and Panopio. The information further alleged that both assaults were committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) Finally, the information alleged that codefendant Kelso had suffered a prior serious felony conviction. (§§ 667, subds. (a)(1) & (b)-(i), 1170.12, subds. (a)-(d).)
All further statutory references are to the Penal Code unless otherwise stated.
A jury convicted appellant and his codefendant on all charges and special allegations. The court sentenced appellant to an aggregate term of 31 years eight months.
On appeal from that judgment, this court reversed appellant's conviction on count 5, and the gang enhancements to counts 1 and 2. (People v. Gray (Jan. 12, 2016, F068698) [nonpub. opn.].) On remand, the district attorney elected to not retry the reversed count or enhancements. The parties stipulated that appellant (and his codefendant) would be resentenced.
A new probation report was prepared and filed with the court on April 25, 2018. Under the heading "Enhancements," the report said:
"Counts One and Two: It was alleged in the Second Amended Information and the Jury found that the defendant committed the specific firearm enhancement pursuant to PC 12022.5(a). This enhancement mandates the defendant serve an additional and consecutive term of three, four, or ten years.
"Counts One and Two: It was alleged in the Second Amended Information and the Jury found that the defendant committed the specific GBI enhancement pursuant to PC 12022.7(a). This enhancement mandates the defendant serve an additional and consecutive term of three years."
The probation report's recommendation included imposition of these enhancements.
At resentencing, the court asked defense counsel if she had received the updated probation report, dated April 17, 2018. Defense counsel replied that she had received the report. She offered no additional comments or objections.
The court then said:
"We do still have the enhancements in Counts 1 and 2, it was alleged in the Second Amended Information, and the jury found, the defendant committed a specific firearm enhancement pursuant to 12022.5(a), this enhancement mandates that the defendant serve an additional consecutive term of 3, 4, or 10 years.
"As to Counts 1 and 2 it was alleged in the Second Amended Information, and the jury found true, that the defendant committed the specific great bodily injury enhancement pursuant to Penal Code Section 12022.7(a), this enhancement mandates the defendant serve an additional and consecutive term of 3 years."
On count 3, the court imposed an aggravated term of three years doubled to six years "pursuant to Penal Code Section 667(e)(1) to be served concurrently."
The court proceeded to pronounce the rest of defendant's sentence and advised defendant of his appellate rights. The court asked whether defendant understood his appellate rights and whether he had any questions. Defendant indicated he understood and had no questions. The court remanded defendant to the Department of Corrections and the hearing concluded.
DISCUSSION
I. The Sentences on the Firearm Enhancements are Affirmed
Section 12022.5, subdivision (a) imposes a sentence enhancement for personal use of a firearm in the commission of a felony or attempted felony. (§ 12022.5, subd. (a).) "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss" this enhancement. (§ 12022.5, subd. (c).)
Senate Bill No. 620, which vested the court with discretion to strike or dismiss certain firearm enhancements in the interest of justice, became effective January 1, 2018, some months before appellant's resentencing on April 25, 2018. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 424.)
Defendant says the resentencing court was not aware of its discretion under section 12022.5, subdivision (c) to strike or dismiss his firearm enhancements. However, we presume sentencing courts know the law and follow it. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517) Defendant's attempt to overcome this presumption hinges on the use of the word "mandates" in the court's statement that section 12022.5, subdivision (a) "mandates that the defendant serve an additional consecutive term of 3, 4, or 10 years." As explained below, we conclude the court's use of the word "mandates" does not overcome the presumption that the court understood it could strike the enhancement in the interest of justice, especially considering the similarly mandatory language in the enhancement statute itself.
Section 12022.5, subdivision (a) uses mandatory language when describing the additional terms it imposes. (§ 12022.5, subd. (a) ["shall be punished by an additional..." (italics added)].) Subdivision (c) of that section does give the court discretion to strike or dismiss the enhancement. But even that provision acknowledges the otherwise mandatory nature of the enhancement when it says the court may "strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.5, subd. (c), italics added.) In other words, the enhanced sentence is mandatory unless the court strikes it in the interest of justice. Given the presumption that sentencing courts are aware of the law (People v. Martinez, supra, 65 Cal.App.4th at p. 1517), we conclude the resentencing court's use of the word "mandates" most likely reflects the mandatory language of the statute rather than an unawareness of the law.
Additionally, we observe that defendant never objected or requested that the court exercise its discretion to strike the enhancement. (Cf. People v. Carmony (2004) 33 Cal.4th 367, 374-375.) And defense counsel received the probation report before the hearing, which clearly recommended that the court impose the firearm enhancements. While we do not rely on the doctrine of forfeiture here, we do note that any confusion on the issue could have easily been cleared up by counsel. --------
Moreover, we note the court also said that the great bodily injury enhancement statute (§ 12022.7) "mandates" defendant serve an additional term of 3 years. Yet, sentencing courts have long had the power to strike such enhancements. (See People v. Meloney (2003) 30 Cal.4th 1145, 1155-1156.) This bolsters our conclusion that the resentencing court's use of the word "mandates" did not reflect an understanding the court lacked discretion to strike the enhancements, but rather that the enhanced sentences were "mandatory" unless stricken.
II. The Second-Strike Sentence on Count 3 was Erroneous
The court doubled defendant's sentence on count 3 from three years to six years "pursuant to" section 667, subdivision (e)(1). However, defendant was not charged as a second-strike defendant and no strike allegations were found true against him. Therefore, the parties agree the sentence was erroneous. The parties agree the sentence on count 3 should be modified to a concurrent three-year term. We accept this concession.
DISPOSITION
The sentence on count 3 is modified from a concurrent six-year term to a concurrent three-year term. The trial court is directed to have a new abstract of judgment prepared and transmitted to all appropriate parties and entities. In all other respects, the judgment is affirmed.