Opinion
C090370
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL DURAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62125829)
At a hearing conducted after we remanded in a prior appeal, the trial court declined to strike defendant's sentence of 25 years to life for a firearm enhancement. Defendant contends the trial court abused its discretion. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As recounted in our prior opinion, defendant pleaded guilty to three counts of attempted murder (Pen. Code, §§ 664, subd. (f), 187, subd. (a)) and admitted a firearm enhancement (§ 12022.53, subd. (d)). Defendant's three victims were peace officers performing their duties when defendant fired at them on two separate occasions, striking one officer in the face.
We grant the parties' requests that we take judicial notice of our decision in the earlier appeal. (People v. Duran (Nov. 5, 2018, C085251) [nonpub. opn.]; Evid. Code, § 452, subd. (d).)
Undesignated statutory references are to the Penal Code.
After the trial court imposed an aggregate state prison term of 70 years to life that included a term of 25 years to life for the firearm enhancement, Senate Bill No. 620 (2017-2018 Reg. Sess.) went into effect January 1, 2018 (Stats. 2017, ch. 682, §§ 1-2), amending section 12022.53 to remove the bar on striking a firearm enhancement and granting the trial court discretion pursuant to section 1385 to strike or dismiss the enhancement. Relevant here, in the earlier appeal we remanded to allow the trial court to exercise its discretion under Senate Bill No. 620 to strike the firearm enhancement.
"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." (§ 12022.53, subd. (h).)
At the hearing on remand, the trial court stated it had read the parties' pleadings, and then heard from the parties.
Defense counsel asked the trial court to "show[] mercy" to defendant, who was 38 years old at the time of the hearing, by striking the firearm enhancement, thereby reducing the aggregate sentence from 70 years to life to 45 to life. Under a "45-year to life sentence, [defendant] would be eligible" for parole "at about 80 years old," which would "give[] [defendant] not just hope, but . . . an opportunity to try to rehabilitate himself," counsel explained.
The People urged the trial court not to strike the 25-year enhancement, emphasizing that defendant "acted with premeditation in trying to kill three police officers at point blank range, lying in wait on two different occasions."
The trial court declined to strike the firearm enhancement, explaining: "The primary reason . . . is . . . given [defendant's] history leading up to this event, the fact that he was on parole, the prior offenses . . . the separate occasions to try to kill police officers in this case and all of the circumstances surrounding it leads me to conclude that [defendant] simply is a danger to society, and I don't feel that the sentence I imposed is unduly harsh or lengthy." (Italics added.)
Defendant timely appealed.
DISCUSSION
Defendant argues the trial court abused its discretion in declining to strike the firearm enhancement because it "imposed [a] draconian, unnecessarily long sentence," which, given defendant's age, is "an effective sentence of LWOP," or life without parole. The People argue the trial court did not abuse its discretion because it "considered [defendant's] . . . argument[s]" on remand for striking the firearm enhancement and was unpersuaded. We conclude the trial court did not abuse its discretion.
A trial court's discretionary decision to dismiss or strike an enhancement is reviewed for abuse of discretion. "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." ' [Citations.] 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.' " ' [Citations.] 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." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
The "interest of justice" analysis contemplated by section 1385 includes consideration of society's interests and individualized considerations of defendant's crimes. (See People v. Rocha (2019) 32 Cal.App.5th 352, 359 [explaining that new § 12022.53, subd. (h) "rest[s] upon section 1385, the same animating authority underlying" People v. Superior Court (Romero) (1996) 13 Cal.4th 497, thereby requiring the court to "weigh similar considerations when exercising its discretion, including the rights of the defendant, the interests of society represented by the People, and individualized considerations pertaining to the defendant and his or her offenses"].)
Here, the trial court listened to the parties' arguments, including defendant's argument relating to his age, and discussed defendant's offenses, noting that defendant tried to kill police officers on multiple separate occasions. Defendant has not shown the trial court acted so irrationally or arbitrarily that no reasonable person could agree with its ruling. Society has a very grave interest in protecting the lives of officers performing their law enforcement duties. (See People v. Rhodes (2005) 126 Cal.App.4th 1374, 1386 ["the imposition of severe punishment upon offenders who kill or injure peace officers serves to promote the societal interest of protecting peace officers engaged in the performance of their duties"].) The trial court did not abuse its discretion by declining to strike the firearm enhancement.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
DUARTE, Acting P. J. /s/_________
BUTZ, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.