Opinion
B300801
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN FELLOWS, Defendant and Appellant.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Kristen J. Inberg, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA066874) APPEAL from the judgment of the Superior Court of Los Angeles County. Andrew E. Cooper, Judge. Affirmed. Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In People v. Fellows et al. (Nov. 19, 2018, B280629) [nonpub. opn.] (Fellows I), we affirmed appellant Benjamin Fellows's conviction for shooting from a motor vehicle in violation of Penal Code section 26100, subdivision (c). In sentencing appellant, the trial court had imposed a then-mandatory 25-year-to-life term for a firearm enhancement found true by the jury pursuant to section 12022.53, subdivision (d). We remanded to permit the trial court to exercise its discretion under section 12022.53, subdivision (h), to strike the firearm enhancement pursuant to recently enacted Senate Bill No. 620.
All further statutory references are to the Penal Code, unless otherwise stated.
On remand, the trial court declined to strike the enhancement. Appellant contends the trial court abused its discretion in declining to strike the enhancement. We find no abuse. Appellant also contends we must remand once more to permit the trial court to exercise its discretion to strike the firearm enhancement imposed under section 12022.53, subdivision (d) and replace it with one of the "lesser included" enhancements set out in subdivisions (b) and (c). For this proposition appellant relies on People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison). We find Morrison inapplicable.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We incorporate by reference our prior unpublished opinion in Fellows I. We recap the facts and procedural background only as necessary to our discussion here. 1. Factual Background
While Essac Jackson (Jackson) was helping his friend and friend's mother unload groceries from the car, appellant and Clarence Thomas (Thomas) approached them. An argument ensued. Appellant said, " 'I'm from L.A., Brim . . .' " Jackson's friend told appellant he was in Palmdale, not Los Angeles and continued: " 'Since you are in front of my mom's house, we have to get down.' " Fellows replied, " 'We don't get down. We shoot.' " Appellant and Thomas left.
A few minutes later, the driver of a gold Altima slowed down and shot a gun at Jackson as he stood by the apartment building. The car then drove off. Jackson was shot in the leg.
A description of the Altima was broadcast to law enforcement personnel. Deputies stopped three men in an Altima. Thomas was in the driver's seat, appellant was in the rear passenger seat, and a third man was in the front passenger seat. As one deputy was walking appellant to the patrol car, he broke free and ran away. The deputy saw appellant remove a gun from his waistband as he ran; the deputy searched the area and found a .38 caliber revolver. Appellant was detained in the backyard of a house. A bag containing give .38 caliber casings was found next to appellant under a blanket.
Gunshot residue tests (GSR) were conducted. Appellant's test showed numerous particles consistent with GSR, while Thomas had one particle consistent with GSR. The prosecution's gang expert opined appellant was a Fruit Town Brims gang member. 2. Conviction and Sentencing
Appellant was charged with two counts of attempted, willful, deliberate, and premeditated murder (§ 644/187, subd. (a); counts 1 and 2), and one count of shooting from a motor vehicle (§ 26100, subd. (c); count 3). As to all counts, it was alleged: 1) the crimes were committed for the benefit of a criminal street gang (§ 186.22, subds. (b)(1)(B) & (b)(1)(C)); 2) a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (b), (c) & (e)(1)); and 3) a principal personally and intentionally discharged a firearm which caused great bodily injury to victim Jackson (§ 12022.53, subds. (d) & (e)(1)). The firearm enhancements carried terms of 10 years (§ 12022.53, subd. (b)); 20 years (id., subd. (c)); and 25 years to life (id., subd. (d)).
The jury deadlocked on count 1, and the trial court declared a mistrial on that count. The court also granted the People's motion to dismiss count 2 and to dismiss the section 12022.53, subdivision (b) firearm enhancement allegation.
The jury found appellant guilty of one count of shooting from a motor vehicle—count 3. (§ 26100, subd. (c).) The jury found true both remaining firearm enhancements: during the commission of the crime, a principal—Thomas, not appellant—personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); and personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)). The jury also found true the allegation that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22).
The trial court sentenced appellant to the upper term of seven years for the shooting, plus 25 years to life on the section 12022.53, subdivision (d) enhancement. The court imposed and stayed the sentence for the gang enhancement per section 186.22. 3. Remand Hearing
We noted in Fellows I: "[T]he trial court in this case is not faced with an all-or-nothing choice with respect to enhancements. The jury in this case found true a 'lesser' firearm enhancement, and the trial court has the option to impose a shorter enhancement term than the current 25 years to life." Our remand instructions provided: "Since the trial court has not expressly and specifically stated how it would have exercised its discretion, defendants have the right to try to persuade the court, with appropriate mitigating evidence, to exercise its discretion to refashion the sentence by striking the firearm enhancement. The trial court may or may not be persuaded. We express no opinion on how the court should exercise its new authority."
At the remand hearing, the court denied appellant's request to strike the enhancement, explaining: "[T]he court has read and considered the briefs as well as now the oral arguments of all parties. [¶] I do note . . . that Mr. Fellows may receive the benefit of youthful offender parole hearing law. [¶] I have considered the facts of the case. I personally presided over this case. I considered the significant roles that both defendants played. [¶] The court acknowledges that Mr. Fellows was not the shooter. However, he is the one who stated to the victim that they do not fight, they shoot. He is also the one who fled from the police, in this court's opinion, in an attempt to evade capture and hide the firearm. [¶] Mr. Thomas actually fired the gun from the vehicle at the victim. [¶] This crime not only endangered the targeted victim, Mr. Essac Jackson, but also everyone present in this populated area where the crime occurred."
The court further explained: "The court has also considered the criminal records of the defendants. The court refreshed its recollection by reviewing the probation report, specifically sequence 1 of each defendant. I also considered the street gang membership of both defendants. [¶] The court finds that striking the allegation pursuant to Penal Code section 12022.53 subsection (h) would not be in furtherance of justice and declines its — its discretion to do so. [¶] That's the court's order."
DISCUSSION
I. The Trial Court Did Not Abuse its Discretion When it Declined to Strike the Firearm Enhancement
Appellant argues the trial court's decision not to strike the section 12022.53, subdivisions (d) firearm enhancement "which added 25 years to life to appellant's upper term sentence of seven years, was arbitrary and an abuse of discretion, resulting in an unfair sentence." We disagree.
As amended by legislation that took effect on January 1, 2018, section 12022.53, subdivision (h) now permits trial courts to exercise discretion to strike or dismiss a firearm enhancement in furtherance of justice, pursuant to section 1385. (§ 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1-2.) When conducting a resentencing hearing under Senate Bill No. 620, the trial court applies the same factors—sentencing objectives and circumstances in aggravation and mitigation—that it would have considered if the legislation had been in place at the original sentencing hearing. (People v. Pearson (2019) 38 Cal.App.5th 112, 117 (Pearson).)
We review a trial court's decision not to strike a sentencing allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The party challenging the sentence has the burden of showing the court's decision was " ' "irrational or arbitrary." ' " (Id. at p. 376.) " ' "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." ' " (Id. at pp. 376-377.)
The record demonstrates the trial court considered appellant's written brief and his attorney's argument at the hearing. The court stated that it had presided over appellant's trial, and had refreshed its recollection by reviewing records. The court noted the "significant roles" appellant and Thomas played in the offense; although Thomas was the shooter, the court noted appellant was the one in possession of the gun when apprehended and broke free and fled from the officers "in an attempt to evade capture and hide the firearm." The court alluded to the "street gang membership" of both defendants.
Appellant argues the trial court misremembered facts when it remarked that appellant had told the victim, " 'We don't get down. We shoot.' " Indeed, appellant's statement was not directed to the victim Jackson, but was a reply to Jackson's friend, who had said, " 'Since you are in front of my mom's house, we have to get down.' " However, it does not matter to whom appellant addressed his statement; what matters is the substance of what he said—that they "shoot", not fight. Further, the statement was made in Jackson's presence.
The court also alluded to the fact that the crime endangered "everyone [who was] present in this populated area." To this end, appellant argues the shooting took place in the parking lot of an apartment building, which was not a populated zone. Appellant concedes, "Arguably, at particular times of the day the parking lot may have had more persons milling about, but, based on the record the only individuals in the parking lot at the time of the shooting were [Jackson and his friend]." We believe the court's statement was a fair one. The parking lot and vicinity of an inhabited apartment building may constitute a populated area. The crime did endanger everyone there, and the record reflects Jackson was present along with his friend, his friend's mother, and the mother's daughter-in-law. At least one neighbor also heard the incident and called 911.
Finally, as a mitigating factor, appellant brings up his youth—he was 18-years-old at the time of the incident. He also notes that that jury found Thomas, not appellant, was the shooter. We do not disagree with appellant that mitigating circumstances were present; however, other factors in aggravation as stated by the trial court support its decision not to strike the enhancement. Appellant was a willing and full participant throughout the commission of the crime. He made a threat-like statement by saying they "shoot", not fight; the casings were hidden near where he sat in the car; and he tried to get rid of the weapon when he attempted to flee from the police.
There is nothing in the record to suggest the trial court's decision was " 'so irrational or arbitrary that no reasonable person could agree with it.' " (Pearson, supra, 38 Cal.App.5th at p. 116.)
II. No Further Remand is Required under Morrison
Appellant next asserts another remand is required under Morrison, decided two days after appellant's resentencing hearing. We disagree.
In Morrison, the trial court imposed a sentence on the charged section 12022.53, subdivision (d) enhancement found true by the jury. (Morrison, supra, 34 Cal.App.5th at p. 220.) The court considered striking this sole enhancement pursuant to Senate Bill No. 620, but declined to so. (Ibid.) On appeal, our colleagues in First District Court of Appeal remanded for a new sentencing hearing because the record did not affirmatively disclose the trial court understood it could have imposed a lesser enhancement under subdivisions (b) or (c), even if the lesser enhancements were not charged. (Id. at pp. 221-225.)
Here, appellant argues a remand is necessary because "the record in [his] case is unclear regarding whether or not the trial court would have stricken the firearm allegation and imposed a lesser firearm allegation had it been aware of its discretion to do so." Not so. The record is not unclear.
First, absent evidence to the contrary, we presume that the trial court knew and applied the governing law. (People v. Thomas (2011) 52 Cal.4th 336, 361.) Moreover, we advised the court of it options in our Fellows I opinion: "[T]he trial court in this case is not faced with an all-or-nothing choice with respect to enhancements. The jury in this case found true a 'lesser' firearm enhancement, and the trial court has the option to impose a shorter enhancement term than the current 25 years to life." Thus, the trial court could have stricken the greater enhancement (§ 12022.53, subd. (d)) and imposed the lesser enhancement (id., subd. (c)). We find the trial court was aware of the availability of the lesser enhancement as a sentencing option and decided against it.
Second, Morrison addressed the situation where a trial court may not have known that it could have imposed an uncharged lesser enhancement. In that vein, we find it clear that the trial court would not have imposed the lesser uncharged subdivision (b) enhancement had it considered it an option. This is so because the trial court declined to impose the lesser enhancement under subdivision (c), which was charged and found true. We conclude it is not possible under any circumstances that the trial court would have imposed the even more lenient uncharged enhancement under subdivision (b).
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
BIGELOW, P. J.
GRIMES, J.