Opinion
F084749
07-18-2023
THE PEOPLE, Plaintiff and Respondent, v. DANIEL AARON RHOADS, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kari Ricci Mueller and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF174783A. John S. Somers, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kari Ricci Mueller and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
In 2019, Daniel Aaron Rhoads (defendant) was sentenced to 40 years to life in prison: 15 years to life for second degree murder plus 25 years to life for a gun enhancement. In People v. Rhoads (Feb. 23, 2022, F079979) (nonpub. opn.) (Rhoads I), this court vacated the original sentence and ordered resentencing in light of People v. Tirado (2022) 12 Cal.5th 688. In July 2022, the trial court reimposed the same sentence. In this appeal, defendant claims the trial court erred by not considering a January 2022 amendment to Penal Code section 1385. (All undesignated statutory references are to the Penal Code.)
By enactment of Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81), section 1385 now reflects a legislative preference for the dismissal of enhancements if certain "mitigating circumstances" are shown to exist. (§ 1385, subd. (c)(2).) One such circumstance is where imposing an enhancement "could result in a sentence of over 20 years." (Id., subd. (c)(2)(C).) Sentencing courts must "consider and afford great weight" to the specified circumstances, meaning "the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (Id., subd. (c)(2).)
The appellate districts have interpretated section 1385 in different ways, creating a split of authority now under review by the California Supreme Court. One view holds the "mandate to 'afford great weight' to mitigating circumstances erects a rebuttable presumption that obligates a court to dismiss the enhancement unless the court finds that dismissal of that enhancement-with the resultingly shorter sentence-would endanger public safety." (People v. Walker (2022) 86 Cal.App.5th 386, 391, review granted Mar. 22, 2023, S278309 (Walker).) The opposing view is that enhancements may be imposed without a public safety determination, even if one or more of the mitigating circumstances are established. (People v. Ortiz (2023) 87 Cal.App.5th 1087, 1096-1098, review granted Apr. 12, 2023, S278894 (Ortiz).)
Relying on Walker, defendant claims the trial court erred by imposing the gun enhancement without finding that dismissing it would endanger public safety. Arguing the trial court "clearly was not aware" of the amendments to section 1385, he seeks to have the matter remanded for another sentencing hearing. Defendant also alleges ineffective assistance of counsel (IAC). The People assert multiple counterarguments, some of which rely on the holding of Ortiz.
Although sentencing courts are presumed to know of relevant changes in the law, we conclude this presumption is rebutted by the record on appeal. And while there is a split of authority regarding the degree to which section 1385 restricts a court's ability to impose or dismiss enhancements, the amount of discretion that once existed has clearly been circumscribed. "[W]hen the record indicates the court misunderstood or was unaware of the scope of its discretionary powers, we should remand to allow the court to properly exercise its discretion." (People v. Bolian (2014) 231 Cal.App.4th 1415, 1421.) Accordingly, defendant's sentence will be vacated and the cause remanded for a new sentencing hearing.
FACTUAL AND PROCEDURAL BACKGROUND
On our own motion, we take judicial notice of the record on appeal in Rhoads I. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
In December 2018, detectives from the Kern County Sheriff's Office questioned defendant about the disappearance of William Alford (the victim), who had been reported missing several weeks earlier. Both men were involved in the marijuana trade, and they had a history of disagreements and confrontations. Defendant confessed to killing the victim but claimed it was in self-defense. Although forensic evidence corroborated the confession, the victim's body was never found.
According to defendant's custodial statements, the victim had come to his house one night saying he was there "'to make amends.'" Defendant thought the victim "was being too nice," and his suspicions were confirmed when the victim began accusing him of stealing marijuana. Defendant armed himself with a rifle and said, "You need to leave me alone," but the victim talked over him and made threatening remarks. Reacting to the victim's body language and demeanor, defendant fired a single bullet into his chest.
After being shot, the victim reportedly said, "'I'm sorry. Call an ambulance.'" Defendant did not seek aid, though he claimed the victim had died within seconds. He admitted to leaving the corpse on his kitchen floor for approximately three hours before deciding to "bag[] him" and "put him in the trash." Defendant described wrapping the body in a tarp "like a [human] burrito," then loading it into a truck and discarding it in a garbage bin somewhere "along the side of the road." When a detective commented on his treatment of the victim's remains, defendant said, "I feel like he's a piece of trash."
In January 2019, defendant was charged with one count of willful, deliberate, and premeditated murder (§ 187, subd. (a)). For enhancement purposes, he was alleged to have killed the victim by personal and intentional discharge of a firearm (§ 12022.53, subd. (d)). The case went to trial in April 2019. The jury acquitted defendant of first degree murder but found him guilty of second degree murder. A true finding was made on the firearm allegation.
In May 2019, defense counsel moved to strike/dismiss the firearm enhancement in the interests of justice. (See §§ 1385, 12022.53, subd. (h).) The People opposed the request. The motion hearing and sentencing both occurred on September 4, 2019. The trial court denied the motion, citing the "very callous" manner "in which [a firearm] was used in this particular case." Defendant was sentenced to 15 years to life on the murder count and received a consecutive term of 25 years to life for the enhancement.
In Rhoads I, defendant complained that neither his defense counsel nor the trial court considered the possibility of "a lesser enhancement" instead of the all-or-nothing choice between striking the enhancement or imposing punishment under section 12022.53, subdivision (d). While the appeal was pending, a split of authority on that issue was resolved in defendant's favor. (People v. Tirado, supra, 12 Cal.5th at p. 697.) Accordingly, we vacated defendant's sentence and ordered a new sentencing hearing. The disposition in Rhoads I instructed the trial court to "consider all sentencing options under section 12022.53." The remittitur was issued on April 25, 2022.
At defense counsel's request, further proceedings originally scheduled for June 2022 were continued to the following month. On July 18, 2022, the defense filed a motion to strike or dismiss the enhancement found true by the jury and replace it with a 10-year enhancement under section 12022.53, subdivision (b). The recent amendments to section 1385 were not mentioned.
The defense motion alleged four mitigating circumstances. First, based on defendant's custodial statements, it was argued "'[t]he victim was an initiator of, willing participant in, or aggressor or provoker of the incident.'" (Quoting Cal. Rules of Court, rule 4.423(a)(2); further rule references are to the California Rules of Court.) The second argument was that defendant, then age 48, had no prior felony convictions and "'an insignificant record of criminal conduct .. ..'" (Quoting rule 4.423(b)(1).) Third, defendant was said to be a model prisoner with exception of "one small writeup" for "covering his cell window with a cardboard box on or about January 2, 2020." (See People v. Yanaga (2020) 58 Cal.App.5th 619, 627 [in deciding whether to strike a gun enhancement, "the resentencing court may consider ... the defendant's postsentencing behavior in prison"].) Fourth, defendant was alleged to be a military veteran.
According to the probation report, defendant had an outstanding warrant at the time of the murder for carrying a loaded firearm in public (Pen. Code, § 25850, subd. (a)) and falsely identifying himself to a peace officer (id., § 148.9). He had been convicted of violating the same firearm statute in 2016, and of driving on a suspended or revoked license (Veh. Code, § 14601.1), but was granted misdemeanor probation. His earliest documented conviction was in 1993 for disturbing the peace by loud and unreasonable noise (Pen. Code, § 415, subd. (2)). The probation report also listed five alcohol-related driving violations between 1994 and 2007, another conviction in 2007 for driving without a license, and a 2014 conviction for failure to appear in court.
The probation report indicated an "[o]ther than honorable discharge" from the United States Navy following service between 1992 and 1993. However, at the resentencing hearing, the trial court found "his discharge was honorable" and said it was "considering him a veteran for purposes of [sentencing]."
The prosecutor filed an opposition, which also failed to discuss the amendments to section 1385. The prosecutor argued there were "no factors in mitigation" and "numerous factors in aggravation." Referencing the May 2019 probation report, the prosecutor wrote "that the defendant's conduct in the instant offense was exceptionally violent and represents a danger to society." This alluded to rule 4.421(b)(1) ["The defendant has engaged in violent conduct that indicates a serious danger to society"], which the probation department had quoted without providing further analysis. The opposition brief also cited "defendant's criminal history and his prior criminal conduct involving firearms, the extreme callousness and violence of the murder that he committed, his continued unwillingness to discuss what really happened to the victim's body [a disputed contention], and his continued rule violation in prison."
On July 26, 2022, the motion was heard and denied. The court addressed each alleged circumstance in mitigation and aggravation, beginning with the victim being portrayed as the initial aggressor:
"[T]his is not a situation where [defendant] was acting in self-defense nor was it one where he had an honest but unreasonable belief that he was acting in self-defense. [¶] It's not and never has been entirely clear to me what the full motivation was for [defendant] shooting the victim in this particular case and killing him. There obviously was some significant degree of animosity between the parties. He would not have shot and killed him had that not been the case.... [B]ut I don't find his motivation one way or the other particularly dispositive as to the level of the firearm enhancement that should be imposed. I'm more concerned with the manner in which the crime was committed, which I will address in a minute or two."
Defendant's overall behavior in prison was found to be “good.” The court explained, “The one rule violation that he does have is not particularly significant to me from a weight standpoint in terms of determining what firearm enhancement should be imposed in this particular case.” Defendant's lack of disciplinary issues and his participation in educational and rehabilitative programs were viewed as weighing “in favor of potentially reducing the firearm enhancement and imposing a lesser one than that which was found in the trial."
Defendant's criminal history was evaluated as a neutral factor. The absence of prior felonies was a positive circumstance, but his misdemeanor record was lengthy and included firearm offenses. The trial court said, "Candidly they don't particularly weigh all that strongly in one direction or the other. Maybe very minimally in favor of imposing the serious firearm enhancement, but certainly not significantly enough to be dispositive. The factors are relatively balanced overall ...."
The trial court rejected the prosecutor's argument regarding the violent nature of the crime: "[A]lthough the fact that a crime was committed with great violence, generally speaking, is a circumstance in aggravation and can be a factor that is a significant one in terms of determining what sentence to impose[,] I'm not really considering that factor here because all murders are violent in some respects."
The dispositive circumstance was "the callousness that [defendant] exhibited towards the victim and towards his life." The trial court stated, "In terms of his attitude towards the victim, it was very callous. That may be a reflection of the degree of animosity between the parties or what the issue was between them. I don't really know. I just know that his attitude towards the victim in this particular case struck the Court as being one where the victim was not really, to [defendant], a human being of any significance but just a problem to be disposed of. I think that's an unfortunate attitude. It may not be reflective of his overall attitude and it may be a function of the relationship between him and the victim in this particular case, but it was there."
Thus, "while there [were] factors weighing in both directions," the trial court reimposed the aggregate sentence of 40 years to life.
DISCUSSION
I. Legal Overview
Section 12022.53 provides for sentencing enhancements based on a defendant's personal use of a firearm in the commission of certain enumerated felonies. There is a 10-year enhancement for the personal use of a firearm (id., subd. (b)); a 20-year enhancement for the personal and intentional discharge of a firearm (id., subd. (c)); and an enhancement of 25 years to life for the personal and intentional discharge of a firearm causing great bodily injury or death (id., subd. (d)).
As discussed in People v. Tirado, supra, 12 Cal.5th 688, section 12022.53, subdivision (h) "authorizes courts to strike certain enhancements in the interests of justice under the authority of section 1385 ." (Tirado, at p. 692, italics added.) Published on January 20, 2022, the Tirado opinion holds that sentencing courts may strike a gun enhancement pled and proven under section 12022.53, subdivision (d), and then impose "a lesser uncharged enhancement under either section 12022.53, subdivision (b) ... or section 12022.53, subdivision (c)." (12 Cal.5th at p. 692.) However, Tirado does not address the amendments to section 1385 that took effect just a few weeks prior to its publication.
Senate Bill 81's amendments to section 1385 "apply to all sentencings occurring after January 1, 2022." (§ 1385, subd. (c)(7).) When defendant was resentenced in July 2022, the relevant provisions of section 1385, subdivision (c), provided as follows:
"(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
"(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.
'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
"(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
"(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.
"(D) The current offense is connected to mental illness.
"(E) The current offense is connected to prior victimization or childhood trauma.
"(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.
"(G) The defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case.
"(H) The enhancement is based on a prior conviction that is over five years old.
"(I) Though a firearm was used in the current offense, it was inoperable or unloaded."
The Walker opinion, issued in December 2022, was the first published decision to interpret the above quoted language. The case addressed two questions. First was whether the "shall be dismissed" language in section 1385, subdivision (c)(2)(B) is a mandatory directive of automatic dismissal. "Second, what does it mean to 'greatly weigh' a mitigating circumstance in deciding whether to dismiss an enhancement?" (Walker, supra, 86 Cal.App.5th at p. 391, review granted.)
The Second Appellate District, Division Two, concluded sentencing courts retain some discretion to impose multiple enhancements even though section 1385, subdivision (c)(2)(B) says, "all enhancements beyond a single enhancement shall be dismissed." (See Walker, supra, 86 Cal.App.5th at pp. 396-397, review granted.) However, with regard to all nine of the enumerated circumstances, the Walker court determined "section 1385's use of the additional phrase 'great weight' ... erects a presumption in favor of the dismissal of the enhancement unless and until the court finds that the dismissal would 'endanger public safety'. . .." (Id. at pp. 398-399, italics added.)
In People v. Lipscomb (2022) 87 Cal.App.5th 9, the First Appellate District, Division Two, considered the language of section 1385, subdivision (c)(2)(C) (hereafter section 1385(c)(2)(C)): "'[Where] [t]he application of an enhancement could result in a sentence of over 20 years[,] ... the enhancement shall be dismissed.'" (Lipscomb, supra, at p. 15.) Like defendant herein, the Lipscomb appellant's sentence included a term of 25 years to life imposed under section 12022.53, subdivision (d). (Lipscomb, at p. 13.) The opinion holds that the mitigating circumstance of producing a sentence exceeding 20 years in prison "does not apply at all where the court finds that striking the enhancement would endanger public safety." (Id. at p. 18.) In other words, "the trial court retains discretion to impose the enhancement where failing to do so would endanger public safety." (Ibid.) Because the sentencing judge expressly found "that dismissal of [the appellant's] enhancement would endanger public safety" (id. at p. 14), the Lipscomb court declined to consider whether dismissal would have been mandatory without a finding of dangerousness (id. at p. 18).
The Ortiz opinion, issued by the Sixth Appellate District in January of this year, had an odd procedural posture. The appellant's sentence did not include an enhancement but rather a doubled base term for felony vandalism because of a prior strike conviction. (Ortiz, supra, 87 Cal.App.5th at p. 1093, review granted.) Relying on the amendments to section 1385, the Ortiz appellant argued the sentencing court should have granted his Romero motion and dismissed the prior strike for purposes of sentencing. (Ortiz, at pp. 1090-1092.) He alleged "the great weight contemplated by section 1385[,] [subdivision] (c)(2) [creates] a presumption in favor of dismissal that is rebuttable only by a danger to public safety." (Ortiz, at p. 1090.)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
As explained in the actual Romero case, the "Three Strikes" law is an alternative sentencing scheme, not an enhancement. (Romero, supra, 13 Cal.4th at p. 527.) As such, the claim in Ortiz could have been rejected based on the inapplicability of section 1385, subdivision (c). (E.g., People v. Burke (2023) 89 Cal.App.5th 237, 242-244 ["The plain language of subdivision (c) of section 1385 applies only to an 'enhancement,' and the Three Strikes law is not an enhancement"].) However, the Ortiz court chose to assume its applicability "for purposes of [the] appeal" (Ortiz, supra, 87 Cal.App.5th at p. 1095, review granted) and went on to expressly disagree with the Walker holding (Ortiz, at pp. 1097-1098). The Ortiz decision concludes sentencing courts may determine "that countervailing factors-other than the likelihood of physical or other serious danger to others-may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice." (Id. at p. 1098.)
In People v. Mendoza (2023) 88 Cal.App.5th 287, the imposition of a 20-year enhancement under section 12022.53, subdivision (c) resulted in a total prison term of approximately 27 years. (Mendoza, at p. 294.) The sentencing judge acknowledged section 1385(c)(2)(C) and concluded it "does not always require dismissal of a firearm enhancement under section 12022.53 ... even when imposition of the 20-year sentence for that enhancement results in a sentence of over 20 years." (Mendoza, at p. 291.) In declining to dismiss the enhancement, the judge found that "'reducing the sentence poses a likelihood that the defendant will commit a crime that results in physical injury or serious danger to others.'" (Id. at p. 294.)
On appeal to the Fourth Appellate District, Division Two, the Mendoza appellant claimed dismissal of his firearm enhancement was mandatory because it caused his prison sentence to exceed 20 years. (People v. Mendoza, supra, 88 Cal.App.5th at p. 295.) The appellate court disagreed, holding "that section 1385(c)(2)(C) does not mandate dismissal of an enhancement when the court finds that dismissal would endanger public safety." (Id. at p. 291.) As in Lipscomb, the sentencing judge's express finding of dangerousness made it unnecessary to determine whether dismissal would have been mandatory had such a finding not been made. (Mendoza, at p. 297.) However, the Mendoza court seemed to infer the Legislature had a reason for including the "shall be dismissed" language in only two of the nine mitigating circumstances listed in section 1385, subdivision (c)(2):
"Although we leave for another day any questions of statutory interpretation not squarely presented in this case, we note that it is possible to interpret the statute in such a way as to give full effect to all of its provisions, as follows: On the one hand, if the trial court finds that dismissal of an enhancement would endanger public safety, then it is hard to see how dismissal would further the interests of justice, so dismissal would not be authorized, let alone required. [Citation.] On the other hand, if the court does not find that dismissal of the enhancement would endanger public safety, then the court must dismiss any enhancement that 'could result in a sentence of over 20 years' (§ 1385(c)(2)(C)) or 'all enhancements beyond a single enhancement' when multiple enhancements are proven (§ 1385, subd. (c)(2)(B)). And if the court does not find that dismissal of the enhancement would endanger public safety and the defendant proves any of the remaining seven mitigating circumstances (§ 1385, subd. (c)(2)(A), (D)-(I)), then the proven circumstances weigh 'greatly in favor of dismissing the enhancement' (§ 1385(c)(2)), but the court is not required to dismiss the enhancement if the court otherwise concludes that dismissal is not 'in the furtherance of justice' (§ 1385(c)(1))." (Mendoza, at p. 297, fn. 6, italics added.)
II. The Parties' Contentions
Citing Walker, defendant argues his sentence is "unauthorized" because the firearm enhancement was imposed without a finding of danger to public safety. The People argue Walker was wrongly decided, but our resolution of this claim does not require an endorsement of Walker or Ortiz. An unauthorized sentence is one that "could not lawfully be imposed under any circumstances in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Even under Walker, the trial court could lawfully impose a section 12022.53 enhancement if it found dismissal of the enhancement would endanger public safety. (Walker, supra, 86 Cal.App.5th at pp. 398-400, review granted.)
Next, defendant contends that "[e]ven if the enhancement was not strictly speaking unauthorized, the court clearly was not aware of and did not exercise its discretion under current section 1385 whether to strike the enhancement. This was a denial of [defendant's] due process right to the sentencing court's exercise of informed discretion." He argues remand would not be futile because (1) "the court could reasonably conclude that a chance of parole in 15 years [is] not a threat to public safety," and (2) "[g]iven that a parole board would have to approve his release, public safety would be protected in any case." Lastly, in anticipation of a forfeiture argument, defendant claims IAC based on defense counsel's failure to advocate for relief under section 1385(c)(2)(C).
The People do argue forfeiture, making related contentions about the trial court's presumed knowledge of the law. The People also claim the record supports an implied finding of dangerousness. In the alternative, they argue harmless error.
As noted in Rhoads I, this district has said a trial court's lack of knowledge regarding the scope of its discretion "may fall within a narrow class of sentencing issues that are reviewable in the absence of a timely objection." (People v. Leon (2016) 243 Cal.App.4th 1003, 1023; see In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1182.) Furthermore, appellate courts have discretion to consider most forfeited claims. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; e.g., People v. Nakano (2023) 89 Cal.App.5th 623, 634 ["Without deciding the forfeiture question, we exercise our discretion to consider the merits of [the appellant's] argument"].) We will consider defendant's primary claim on the merits, which moots the IAC issue.
III. Analysis
The People impliedly concede the applicability of section 1385(c)(2)(C). When a defendant is sentenced to a term of 15 years to life in prison, the Board of Parole Hearings decides when the prison term ends. (In re Butler (2018) 4 Cal.5th 728, 733; In re Monigold (1983) 139 Cal.App.3d 485, 491.) Without an enhancement, it is possible defendant's prison term would be less than 20 years. As such, the imposition of any enhancement under section 12022.53, including subdivision (b) or (c), "could result in a sentence of over 20 years." (§ 1385(c)(2)(C).) We therefore accept the People's implied concession.
We express no views on the question of whether section 1385(c)(2)(C) would apply in situations where the base term or aggregate punishment for multiple substantive offenses exceeds 20 years.
We further conclude defendant is entitled to a new sentencing hearing. This is not based on the holdings of Walker or Ortiz, but the fact Senate Bill 81 reflects a legislative preference for the dismissal of enhancements. A statutory preference in favor of certain sentencing choices does not eliminate a court's discretion, but it does circumscribe it. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1381-1382.) In cases where one or more "mitigating circumstances" listed in section 1385 are shown to exist, sentencing courts have less discretion to impose an enhancement than they did prior to the enactment of Senate Bill 81.
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, ... the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.)
We realize the disposition in Rhoads I did not mention the recent amendment to section 1385. It merely said "the trial court shall consider all sentencing options under section 12022.53." However, section 12022.53 expressly refers to section 1385, and the authority to impose a lesser enhancement pursuant to section 12022.53, subdivision (j) is inextricably connected with the power to dismiss an enhancement under section 1385. (See People v. Tirado, supra, 12 Cal.5th at pp. 692, 700.) Although defense counsel requested a 10-year enhancement under section 12022.53, subdivision (b), granting such relief would have still produced a sentence of over 20 years. Therefore, consideration of section 1385(c)(2)(C) was necessary in any event.
By July 2022, nearly eight months after the amendments to section 1385 had taken effect, the attorneys and the trial court should have been aware of the current law. We say this not as criticism of any oversight by those involved, but merely as a statement of what the law presumes. (See People v. Scott, supra, 9 Cal.4th at p. 353 ["[C]ounsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing"]; In re David C. (2020) 53 Cal.App.5th 514, 521 ["We presume district attorneys and probation officers stay abreast of changes in the law"]; People v. Mosley (1997) 53 Cal.App.4th 489, 496 ["The general rule is that a trial court is presumed to have been aware of and followed the applicable law"].)
The People rely on the principle that courts are presumed to know and follow the relevant law. This presumption, however, is rebuttable. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549-550.) "[R]emand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1229, italics added.) "But when a judge's remarks preceding a ruling reflect a misapprehension of the law upon which that ruling is based, the appellate court must consider the judge's remarks in its review." (People v. Carter (2014) 227 Cal.App.4th 322, 324.) Recent cases hold the presumption may be rebutted when the record "is at the very least ambiguous" in terms of the trial court's "awareness of its discretionary authority." (People v. Ochoa (2020) 53 Cal.App.5th 841, 853, 852; accord, People v. Panozo (2021) 59 Cal.App.5th 825, 839 ["where the record is not silent, but rather is 'at the very least ambiguous as to whether the court understood its [statutory] obligation to consider youth-related mitigating factors at sentencing before making the discretionary sentencing decision . . ., remand is appropriate"].)
Here, despite the statutory mandate to "afford great weight" to the fact that imposing the enhancement "could result in a sentence of over 20 years" (§ 1385, subd. (c)(2)(C)), there is no indication the trial court gave any weight to that circumstance. It discussed multiple circumstances in detail, most of which were described as being of minimal importance, and concluded by saying, "Those are the factors that I've considered in exercising my discretion. I hope I have made a little bit more effective record this time than I previously did." Given the quoted statement, we are hard pressed to assume unspoken consideration was given to section 1385(c)(2)(C) or the issue of potential danger to public safety. The record is not silent, but at best ambiguous, regarding the trial court's awareness of Senate Bill 81's changes to section 1385. (Cf. People v. Ochoa, supra, 53 Cal.App.5th at pp. 852-853.)
The People argue the finding of callousness necessarily implies "a finding of danger to the public." We disagree. A general disregard for all human life might support a finding of danger to public safety, but the trial court stopped short of reaching such a conclusion. It acknowledged defendant's callousness "may not be reflective of his overall attitude" and was merely indicative of his disdain for the victim. The record does not clearly indicate the result would have been the same had full consideration been given to section 1385(c)(2)(C). (See People v. Gutierrez, supra, 58 Cal.4th at p. 1391.) We express no opinion about how the trial court should rule on remand.
To provide further guidance and forestall avoidable future claims, we note there is a split of authority on the question of whether a sentencing court may strike a section 12022.53 enhancement and replace it with an uncharged lesser enhancement under a different statute, e.g., section 12022.5, subdivision (a). In People v. Lewis (2022) 86 Cal.App.5th 34, a different panel from this district rejected the proposition. (Id. at pp. 39-42.) However, the issue is now pending before the California Supreme Court. (See People v. McDavid (July 14, 2022, D078919) [nonpub. opn.], review granted Sept. 28, 2022, S275940.) We also note defendant's future eligibility for California's Elderly Parole Program. Effective January 2021, subject to exceptions not applicable here, inmates are eligible for parole if they are "50 years of age or older and [have] served a minimum of 20 years of continuous incarceration on [their] current sentence, serving either a determinate or indeterminate sentence." (§ 3055, subd. (a).) The record indicates defendant has been continuously incarcerated since late 2018 or early 2019, when he was 45 years old. Despite his current aggregate sentence of 40 years to life, he would be eligible for parole under section 3055 at age 65. In practical effect, striking the firearm enhancement would accelerate his parole eligibility by approximately five years.
DISPOSITION
The judgment is affirmed but the sentence is vacated and the cause is remanded for a new sentencing hearing. On remand, the trial court shall consider all applicable sentencing laws.
[*] Before Franson, Acting P. J., Pena, J. and De Santos, J.