Opinion
E071942
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. TYRIES KEIMON BROOKS, Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Tyries Keimon Brooks. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1501532) OPINION APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Affirmed and remanded with directions. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Tyries Keimon Brooks. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
In a previous appeal, we affirmed defendant Tyries Keimon Brooks's convictions on various felony charges, but remanded for resentencing. (See People v. Brooks (Feb. 27, 2018, E066277) [nonpub. opn.] (Brooks).) His sentence had included a term of 25 years to life for a firearm enhancement imposed pursuant to Penal Code section 12022.53. (Brooks, supra, E066277.) But after Brooks's sentencing, the Legislature had enacted Senate Bill No. 620 to allow the trial court, in its discretion, to strike or dismiss section 12022.53 enhancements. (See § 12022.53, subd. (h).) We therefore remanded the case so that the trial court could consider whether to exercise that discretion. (Brooks, supra, E066277.) We also ordered a stay pursuant to section 654 of a four-year term, previously imposed with respect to a section 186.22, subdivision (b)(1) enhancement, and the abstract of judgment corrected accordingly. (Brooks, supra, E066277.)
Further undesignated statutory references are to the Penal Code.
On remand, the trial court declined to dismiss the section 12022.53 firearm enhancement. Brooks argues here that this decision amounted to an abuse of discretion. He also notes that no corrected or modified abstract of judgment was filed in accordance with our holding staying the section 186.22, subdivision (b)(1) enhancement.
We find no abuse of discretion and affirm the trial court's ruling. We again remand to the trial court with instructions to prepare an amended abstract of judgment.
I. PROCEDURAL BACKGROUND
"A jury found [Brooks] guilty on one count of attempted premeditated murder (§§ 664, 187, subd. (a); count 1), one count of shooting from a motor vehicle (§ 26100, subd. (c); count 2), one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 3), and one count of carrying a loaded firearm by an active participant in a criminal street gang (§ 25850, subds. (a), (c)(3); count 4). With respect to counts 1, 2, and 4, the jury found true allegations that Brooks committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). With respect to counts 1 and 2, the jury found true allegations that Brooks personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53). The jury acquitted Brooks of a fifth charged count, possessing a concealed firearm in a vehicle (§ 25400, subd. (a)(1))." (Brooks, supra, E066277.)
The trial court imposed an indeterminate sentence of 40 years to life, plus a determinate sentence of seven years. The sentence consisted of indeterminate terms of 15 years to life for count 1, and 25 years to life for the section 12022.53, subdivision (d) enhancement of count 1, plus three years for count 4, and four years for the section 186.22, subdivision (b)(1) enhancement of count 4. The trial court also imposed sentences for counts 2 and 3, but stayed them pursuant to section 654. (Brooks, supra, E066277.)
In Brooks's first appeal, we ordered stayed pursuant to section 654 the four-year term for the section 186.22, subdivision (b)(1) enhancement of count 4, and directed that the abstract of judgment be corrected accordingly. We remanded the matter "for the trial court to consider striking the section 12022.53, subdivision (d) enhancement pursuant to sections 1385 and 12022.53, subdivision (h)." We affirmed the judgment in all other respects. (Brooks, supra, E066277.)
On remand, after briefing by the parties and oral argument by counsel, the trial court denied Brooks's request to strike the section 12022.53 enhancement.
II. FACTUAL BACKGROUND
"The events giving rise to counts 1 through 3 occurred on the evening of April 17, 2015. Although the testimony of the witnesses and the victim differ in some details, they are largely consistent at a broad level. The victim, Nelson Davis, was driving in Rialto, near the intersection of Spruce Avenue and Lorraine Place, with a female passenger, Ursula Tillman. He stopped his car near the entry of an alleyway and conversed briefly with a female friend, Giselle Davis, who was walking from a nearby liquor store. As they were conversing, a car driven by Destinee Reed, with Brooks in the front passenger seat and Reed's three-year-old child (Brooks's niece) in the back seat, drove past the victim's car and down the alley.
"Shortly thereafter, the two cars parked next to one another in parking spaces for the adjacent apartment complex a short distance down the alleyway; both pulled in facing forward, so that the passenger's side of Reed's car was adjacent to the driver's side of the victim's. Almost immediately, a verbal confrontation broke out between occupants of the two cars, during which Reed, Tillman, and the victim exited the vehicles, but Brooks did not. After a brief argument, Brooks said something to Reed—several witnesses heard something to the effect of 'back up' or 'back the car up,' punctuated with profanities, but Reed testified that he was telling her 'get . . . in the car.' Reed got back in her car, and maneuvered it out of the parking space. As she did so, Brooks fired multiple shots from a handgun out the passenger window, hitting the victim three times; first in the hand, then in the back, then in the leg.
"With respect to counts 4 and 5, the prosecution presented evidence that on April 25, 2015, Brooks was the passenger in a car stopped by police in a traffic stop. The car was searched, leading to the discovery of a loaded handgun on the passenger's seat, and a second loaded handgun tucked between the center console and the passenger seat.
"The prosecution presented evidence that in April 2015, Brooks was an active member of the Five Time Hometown Crips (Five Time gang), a criminal street gang. Reed, too, is associated with the Five Time gang; she pleaded guilty to a charge of active participation in a street gang (§ 186.22, subd. (a)), among other things, in connection with the shooting at issue here, and her child's father is Brooks's brother, who also has convictions on gang charges. The color associated with [the] Five Time gang is blue. One of the main rivals of the Five Time gang is Hustla Squad; there have been numerous shootings in the last several years between the two gangs. Hustla Squad's associated color is red. The events of April 17, 2015, at issue in the present case took place within the territory of Hustla Squad. At the time of the shooting, the victim, Tillman, and Giselle Davis were all wearing red." (Brooks, supra, E066277.)
On remand, Brooks filed a written request that the trial court exercise its discretion to dismiss the section 12022.53 enhancement, as well as a statement in mitigation and supporting documentation pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin). Brooks argued that the circumstances of the offense showed several of the mitigating factors set out in California Rules of Court, rule 4.423 applied, including that the victim was "an initiator of and an aggressor in and a provoker of the incident." (See Cal. Rules of Court, rule 4.423.) Brooks also emphasized his youth, difficult upbringing, and history of mental health issues and a learning disability. As an attachment to his request, Brooks included a "Biopsychosocial Assessment," prepared by "Adina Silva MFT, AMFT," who found Brooks "was unfortunately not afforded the opportunity for pro-social learning, therapy, counseling, or any positive modeling throughout his life," and concluded Brooks "could lead a productive life given the opportunity to access mental health services, such as individual counseling, as well as vocational training and community resource linkages."
Franklin requires that a youthful offender be given an opportunity to make a record at the time of sentencing of information that will be "relevant to his [or her] eventual youth offender parole hearing," since this is "typically a task more easily done at or near the time of the . . . offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away." (Franklin, supra, 63 Cal.4th at pp. 283-284.) Brooks was 18 years old when he committed the offenses at issue here. (See § 3051, subd. (a) [providing for youth offender parole hearing for "any prisoner who was 25 years of age or younger. . . at the time of his or her controlling offense.")
During the hearing on Brooks's request, the trial court acknowledged some of Brooks's arguments, noting that "Mr. Brooks was young when this crime occurred," and also observing that, even without the section 12022.53 enhancement, Brooks would still be serving a life sentence. The trial court also noted, however, that Brooks had a "juvenile history" that included several felony offenses relating to firearms. It further commented as follows: "[L]et's also recognize that clearly, the [L]egislature in the State of California takes gun violence very seriously, and that's why you have the [section] 12022.53 enhancements, and that's why the time builds up so dramatically if you use a firearm; especially if you use a firearm and you cause death or great bodily injury. So I have to consider that as well. [¶] So I would really need something more to strike it. So, for example, was there some sort of credible issue during the trial? I was trial judge, so I remember the case. Is there some sort of dispute—credible dispute that Mr. Brooks did not use the firearm? Somebody else did. Or he was just an aider and abettor to someone who used a firearm. Some sort of credible evidence that [the gun] perhaps accidentally discharged. Or something else about the circumstances, like he was greatly provoked or something like that." After a discussion with counsel about the trial evidence regarding self-defense or provocation, the trial court concluded as follows: "So given that, I have to look at what happened here. We have a victim in this case who, by some kind of miracle, did not die. He got shot, I think, multiple times, suffered great bodily injury, including the loss of his liver. He was unarmed. There's no real evidence, I thought from the trial, that the victim confronted or provoked Mr. Brooks. Mr. Brooks was a known gang member. He used a gun. He personally used a gun. And he had the prior record that I mentioned as a juvenile that included possession of firearms. [¶] So for all those reasons, I will decline to strike the gun enhancement pursuant to [sections] 1385 and 12022.53(h)."
III. DISCUSSION
A. Applicable Law
When Brooks was first sentenced, the trial court was required to impose an additional and consecutive term of imprisonment of 25 years to life with respect to the section 12022.53, subdivision (d) enhancement of count 1. (See former § 12022.53, subd. (h) (effective Jan. 1, 2012 ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."].) On October 11, 2017, the Governor signed Senate Bill No. 620, which amends section 12022.53 to give the trial court the authority to strike in the interests of justice a firearm enhancement allegation found true under that statute. Effective January 1, 2018, section 12022.53, subdivision (h) is amended to state: "The 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. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 2(h).)
A court's discretionary decision not to dismiss or strike a sentencing enhancement under section 1385 is "subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citation.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
B. Analysis
Brooks contends that the trial court abused its discretion by denying his request to strike or dismiss the section 12022.53 enhancement because: (1) it failed to consider the "'mitigating qualities of youth,'" including both those qualities typical of youth generally, and those demonstrated by Brooks's individual history and circumstances; (2) its decision was "wholly out of step with the clear public purposes of the [Senate Bill No.] 620 ameliorative changes to the law" and demonstrates a misunderstanding of the scope of its new discretion; and (3) it failed to give "due consideration" to evidence of "the victim . . . and his cohorts . . . engaging in actual or ostensible verbal and/or physical gang-related provocations that sparked the shooting."
First, the record does not support Brooks's contention that the trial court failed to consider the "'mitigating qualities of youth'" in making its decision. (Italics omitted.) During the hearing on Brooks's request, the trial court expressly acknowledged: "Yes. Mr. Brooks was young when this crime occurred." The trial court also expressly acknowledged that it had read and considered Brooks's written motion, as well as his Franklin statement in mitigation and the packet of documents in support of that statement, where Brooks addressed the issue in depth. As Brooks notes, in its "stated reasoning" the trial court did not discuss in any detail the "particular attributes or features of youth" that are relevant considerations as factors tending to weigh in favor of striking or dismissing the enhancement. It does not follow, however, that the trial court was unaware of these factors or failed to consider them. Rather, we are required to draw the opposite inference from the trial court's general acknowledgment of the issue: "On appeal, we presume that a judgment or order of the trial court is correct, '"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Giordano (2007) 42 Cal.4th 644, 666; see also Cal. Rules of Court, rule 4.409 ["Relevant factors enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise."].)
Next, we are not persuaded that the trial court's comments during sentencing demonstrate that it "misunderstood materially the manifest public policies underpinning, and the full extent of the scope of the court's discretion . . . afforded by [Senate Bill No.] 620," as Brooks argues. Rather, the trial court correctly noted that, although it now had the discretion to strike a section 12022.53 enhancement, the same policy considerations that underpin the adoption of those enhancements by the Legislature also remain valid. As our colleagues in the Second District recently observed: "Resentencing after new legislation that applies to sentences not yet final can deprive context from what would otherwise be a decision made during the original sentencing hearing." (People v. Pearson (2019) 38 Cal.App.5th 112, 117.) It was proper, for example, for the trial court to consider that the crime "involved great violence" and "great bodily harm," and that Brooks personally "was armed with or used a weapon at the time of the commission of the crime." (Cal. Rules of Court, rule 4.421(a)(1),(2).) The trial court also properly considered whether Brooks "has engaged in violent conduct that indicates a serious danger to society," and whether he had a juvenile record that included numerous felony offenses, including offenses relating to firearms. (Cal. Rules of Court, rule 4.421(b)(1), (2).) We understand the trial court's comments to indicate that it viewed the facts and policy considerations weighing in favor of striking or dismissing Brooks's section 12022.53 enhancement to be outweighed by the facts and policy considerations that weighed against doing so. We find nothing in the record that affirmatively reflects that the trial court in fact misunderstood the scope of its discretion in any respect.
Finally, we find nothing in the record suggesting that the trial court failed to give "due consideration" to evidence of "the victim . . . and his cohorts . . . engaging in actual or ostensible verbal and/or physical gang-related provocations that sparked the shooting," as Brooks argues. In our previous opinion in this matter, we found there was no evidence of provocation sufficient to require the trial court to instruct the jury on voluntary manslaughter based on heat of passion or sudden quarrel, and noted that the jury "specifically found that defendant intended to kill when he acted, carefully weighed his decision and, knowing the consequences, decided to kill before completing the act of attempted murder." (Brooks, supra, E066277.) To the extent the evidence might support a finding that the victim or his associates initiated the verbal altercation with Brooks and Reed that preceded Brooks shooting the victim, we find no abuse of discretion in the trial court's decision not to give such evidence any more mitigating weight than it did.
Because Brooks has demonstrated no abuse of discretion in the trial court's decision not to strike or dismiss the section 12022.53 enhancement, we will not disturb the ruling.
IV. DISPOSITION
The matter is remanded to the trial court with directions to prepare an amended abstract of judgment reflecting our order in Brooks, supra, E066277, modifying Brooks's sentence by staying the section 186.22, subdivision (b)(1) enhancement of count 4. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. The judgment otherwise is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: RAMIREZ
P. J. FIELDS
J.