Opinion
H046883
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. FREDDY GOMEZ CARRANZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS132242)
Defendant Freddy Gomez Carranza appeals from the trial court's decision on a limited remand from this court not to strike a Penal Code section 12022.53, subdivision (d) firearm enhancement. He claims that the court misunderstood the scope of its discretion and therefore failed to exercise it. He also argues that his trial counsel was prejudicially deficient in failing to argue that the court had discretion to impose a lesser enhancement. We reject his contentions and affirm.
I. Background
Defendant was convicted by jury trial of second degree murder (Pen. Code, § 187), and the jury also found true an allegation that he had personally used a firearm to cause great bodily injury or death (Pen. Code, § 12022.53, subd. (d)) in the commission of the murder. The trial court sentenced him to 15 years to life for the murder count and 25 years to life for the firearm enhancement.
In his original appeal from the judgment, defendant sought, among other things, a remand for the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), which took effect after defendant was sentenced, to strike the firearm enhancement. In October 2018, we reversed the judgment and remanded the case to the trial court for the limited purpose of permitting the court to exercise its discretion under Penal Code section 12022.53, subdivision (h).
Defendant's trial counsel submitted a very brief motion, dated February 2019 but not filed until May 2, 2019, asking the court to "strike the personal use of a firearm enhancement" because, "[a]lthough the jury did not agree with the self-defense claim, the jury did agree the murder was not premeditated . . . ." At the May 2 hearing on the motion, defendant's trial counsel submitted the matter without argument. The prosecutor argued that "the 12022.53 [enhancement was] appropriate in this case" because defendant was "an active drug dealer" who killed the unarmed victim by "plac[ing[ a shotgun in the victim's chest" "from point-blank range" and "pull[ing] the trigger." "The People believe that 12022.53 is appropriate and just, and the sentence he's serving he should continue to serve."
The trial court noted that it "remember[ed] the facts in this case." "[B]ased upon the gravity of the offense involved, the defendant's conduct in the offense involved, clearly it was a very significant and serious murder of an individual" and "[c]onsidering . . . defendant's behavior on other occasions, the Court does not find that it is appropriate to strike this allegation."
II. Analysis
Defendant claims that another remand is required because the trial court misunderstood the scope of its discretion and failed to consider "whether to modify" the 25-years-to-life Penal Code section 12022.53, subdivision (d) enhancement to a 20-year Penal Code section 12022.53, subdivision (c) enhancement or a 10-year Penal Code section 12022.53, subdivision (b) enhancement.
Defendant relies on the First District Court of Appeal's April 11, 2019 decision in People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) in which the First District considered whether a trial court had discretion to modify a Penal Code section 12022.53, subdivision (d) enhancement to a subdivision (c) or a subdivision (b) enhancement. The validity of the First District's holding in Morrison that the court does have that discretion is currently pending before the California Supreme Court in People v. Tirado (2019) 38 Cal.App.5th 637, review granted Nov. 13, 2019, S257658 (Tirado). In Tirado, the Fifth District Court of Appeal disagreed with the First District and held that a trial court has no such discretion. (Tirado, at p. 644.) Tirado was published on August 12, 2019.
Defendant claims that "as in Morrison, the trial court was not aware of the full range of options" because "neither the court nor the parties mentioned or considered the 20 or 10-year" enhancements as options. In Morrison, as defendant acknowledges, the First District proclaimed: "[A]fter the publication of our decision today, the usual presumption that a sentencing court correctly applied the law will apply and will ordinarily prevent remand where the record is silent as to the scope of a court's discretion." (Morrison, supra, 34 Cal.App.5th at p. 225.)
Defendant concedes that Morrison was published "four weeks prior to" the hearing on remand in this case, but he claims that "it is clear that neither the court nor appellant's counsel were aware of this recent decision" and "none of the court's or counsel's comments indicated that they were aware of that decision."
We need not resolve the conflict between Morrison and Tirado in this case. Defendant was sentenced after the publication of Morrison and before the publication of Tirado. Thus, the only authority at the time of his sentencing held that a trial court had discretion to select a lesser enhancement. Because it is "the general rule that a trial court is presumed to have applied the law correctly in the absence of a clear indication to the contrary, [courts have] concluded that in cases in which the trial court record is silent, ordinary principles of appellate review require that an appellate court presume the trial court properly understood" its discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944 (Fuhrman).) When the record is silent, remand is not available, and a defendant must seek relief by habeas. (Id. at pp. 944-945.)
We are bound by the California Supreme Court's decision in Fuhrman. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Fuhrman had been sentenced under the "Three Strikes" law before the California Supreme Court held in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) that a trial court had discretion to strike a strike. (Romero, at p. 531; Fuhrman, supra, 16 Cal.4th at pp. 941-942.) The Romero decision resolved a split of authority on whether the trial court had such discretion and was explicitly "retroactive." (Fuhrman, at pp. 942-943.) In Fuhrman, the California Supreme Court rejected a line of Court of Appeal cases that had held that remands were appropriate where the defendant was sentenced prior to the Romero decision. (Fuhrman, at p. 945.) Instead, the California Supreme Court held that in those cases remand would be appropriate only where there was an "affirmative indication in the record that the trial court" misunderstood its discretion. (Id. at pp. 945-946.)
Defendant fails to identify any "affirmative indication in the record" that the trial court in this case misunderstood the scope of its discretion at the May 2, 2019 hearing. Indeed, he concedes that the record contains no such affirmative indication. Morrison was the only case authority in existence at that time. None of the statements made by the trial court, defendant's trial counsel, or the prosecutor at the sentencing hearing amounted to an "affirmative indication" that the trial court lacked discretion to select a lesser enhancement. Since, at the time of defendant's sentencing hearing, the only authority concerning the scope of discretion to select a lesser enhancement was Morrison, we must presume that the trial court followed Morrison. Indeed, the First District in Morrison anticipated that there would be cases like the one before us and explicitly acknowledged that this presumption would apply and that remand would not be available. Under these circumstances, we are bound to reject defendant's request for a second remand.
Defendant's claim that his trial counsel was prejudicially deficient in failing to expressly address Morrison also cannot succeed. "To succeed on an appellate claim of ineffective assistance, a defendant must establish that his trial counsel's performance was deficient and that his defense was prejudiced by the deficiency. [Citations.] 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.] Whenever counsel's conduct can be reasonably attributed to sound strategy, a reviewing court will presume that the conduct was the result of a competent tactical decision, and the defendant must overcome that presumption to establish ineffective assistance. [Citation.]" (People v. Fromuth (2016) 2 Cal.App.5th 91, 113.)
Defendant's claim is actually that, if we find forfeiture, his trial counsel was prejudicially deficient in failing to address the issue at the hearing on remand. We do not find forfeiture. However, we understand defendant to be claiming that his trial counsel's failure to argue the issue at the hearing was prejudicially deficient even if we do not find forfeiture. --------
Defendant claims that his trial counsel could have had "no tactical purpose" for failing to argue for a lesser enhancement. We disagree. If defendant's trial counsel believed that the trial court was unaware of Morrison, she reasonably could have concluded that defendant had the most to gain by arguing that the trial court's discretionary choice was binary. That way, if the trial court was inclined to reduce defendant's sentence and believed it had only the choice between striking or not striking the 25-years-to-life enhancement, it might choose to strike the enhancement entirely, which would reduce defendant's sentence from 40 years to life to 15 years to life. In contrast, an argument that the court could select one of the lesser enhancements might have produced a sentence of 25 years to life or 35 years to life. We cannot say that a strategy aimed at achieving the best result for defendant was unreasonable.
In any case, even if making this strategic choice was unreasonable, defendant cannot establish prejudice on this record. There is no indication in the record that an argument by defendant's trial counsel that, under Morrison, the court had the discretion to select one of the lesser enhancements would have had any prospect of success. The record before us contains no indication that the trial court might have been inclined to reduce defendant's sentence to 25 years to life or 35 years to life even though it was unwilling to reduce it to 15 years to life. On such a record, an appellate ineffective assistance claim cannot succeed.
III. Disposition
The reinstated judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Bamattre-Manoukian, J.