Opinion
B300826
04-29-2020
THE PEOPLE, Plaintiff and Respondent, v. PULUPAKI FIFITA, Defendant and Appellant.
Sally Patrone Brajevich, 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, David E. Madeo and Kathy S. Pomerantz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NA100695) APPEAL from an order of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed. Sally Patrone Brajevich, 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, David E. Madeo and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Pulupaki Fifita challenges the trial court's denial of his petition for resentencing under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, pp. 5104-5106) (Senate Bill No. 620). Among other claims, Fifita contends that the trial court's decision not to strike a 20-year enhancement (see Pen. Code, § 12022.53, subds. (c) & (e)(1)) from his sentence for attempted murder (§§ 187, subd. (a), 664) was an abuse of discretion. We affirm.
Subsequent statutory references are to the Penal Code. In this case, the enhancement was based on the joint operation of two subdivisions of section 12022.53. Subdivision (c) imposes a 20-year enhancement for personally and intentionally discharging a firearm in the commission of an enumerated felony. The jury did not find that Fifita personally fired the weapon, but the enhancement nevertheless applied because the jury found that a principal fired a weapon and the crime was gang related. (See § 12022.53, subd. (e)(1).)
FACTS AND PROCEEDINGS BELOW
On the afternoon of October 27, 2014, Fifita was driving a white Chevrolet sports utility vehicle (SUV) with his codefendant, Lee Eastwood Manako, in the passenger seat. They encountered the victim, Frank Kuaea, crossing the street with some friends at a crosswalk. As we described in our previous nonpublished opinion in this case, People v. Fifita (Feb. 23, 2018, B276521), "[s]ome words were 'exchanged' between one of Kuaea's friends and the occupants of the white SUV. Kuaea started running because he got 'spooked' and was 'afraid' and because one of his friends started running." (Id. at p. 3.)
"Kuaea ran toward a nearby Pizza Hut restaurant. At first, he tried to enter the Pizza Hut through the locked delivery driver's door. Then he went around the side of the building and entered the Pizza Hut through the customer entrance. Once inside, Kuaea jumped the counter, telling the Pizza Hut employees that ' "somebody's chasing me" ' and that they should call the police. According to one of the Pizza Hut employees, Kuaea looked 'panicked.'
"Once inside the Pizza Hut, Kuaea heard pounding on the locked driver's door that he had first tried to use. As he hid in the back of the restaurant, Kuaea heard a gunshot and the sound of one of the restaurant's windows shattering. As he fled from the Pizza Hut, Kuaea saw the same white SUV that had nearly hit him in the crosswalk." (People v. Fifita, supra, B276521, p. 4.)
Shortly thereafter, a police officer detained the SUV, with Fifita still driving, and took him and Manako into custody. Officers searched the vehicle and discovered "a shotgun on the vehicle's backseat that had a spent round in the gun's chamber and smelled as though it ha[d] recently been fired. As the police removed the shotgun from the car, Manako said to the police, 'Be careful with that. That's my baby.' " (People v. Fifita, supra, B276521, pp. 4-5.) After a subsequent, more thorough search of the SUV, officers discovered a loaded .32 caliber revolver that also had one spent cartridge in the cylinder.
A jury convicted Fifita of (count 1) attempted murder (§§ 187, subd. (a), 664), and found that the crime was committed willfully, deliberately, and with premeditation. The jury also found that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C).) The jury found true three allegations of firearm use: (1) that a principal intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); (2) that a principal intentionally used a firearm (§ 12022.53, subds. (b) & (e)(1)); and (3) that Fifita personally and intentionally used a firearm (§ 12022.53, subd. (b)). The jury found not true an allegation that Fifita personally and intentionally discharged a firearm. (§ 12022.53, subd. (c).) The jury also convicted Fifita of (count 3) shooting at an occupied building (§ 246), and found true the same allegations of firearm use. Finally, the jury convicted Fifita of (count 2) assault with a firearm (§ 245, subd. (a)(2)), and found that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)), and that Fifita personally used a firearm (§ 12022.5, subd. (a)).
The trial court sentenced Fifita to life with the possibility of parole for attempted murder (count 1). Under the law at the time of sentencing, the court was required to impose the firearm enhancement with the longest sentence and to stay the rest. (See § 12022.53, subd. (f).) The court therefore imposed a 20-year consecutive term on the ground that a principal discharged a firearm in the offense. (§ 12022.53, subds. (c) & (e)(1).) The court stayed the sentence on the other enhancements and on counts 2 and 3.
After the sentencing hearing, but before we decided Fifita's appeal, the Legislature enacted Senate Bill No. 620, which gives trial courts discretion to strike firearm enhancements in the interest of justice. (See § 12022.53, subd. (h).) We affirmed Fifita's conviction but remanded the case to the trial court to consider whether to strike the firearm enhancements pursuant to Senate Bill No. 620. (People v. Fifita, supra, B276521, pp. 50-51)
On remand, Fifita filed a motion to strike the firearm enhancements. At the resentencing hearing, the court had the option to strike the 20-year enhancement and to impose a previously stayed 10-year enhancement under section 12022.53, subdivision (b). Alternatively, the trial court could have struck all of the enhancements. Instead, the trial court decided not to strike any enhancements.
DISCUSSION
Fifita raises three arguments on appeal. First, he contends that, in light of his lack of a prior criminal record and that no one was injured in the shooting, the trial court abused its discretion by denying his motion to strike the 20-year firearm enhancement. Next, he contends that we must remand the case for another resentencing hearing because it was not clear that the trial court understood it could strike the enhancements and impose a lesser enhancement. Finally, he contends that the trial court disobeyed the instructions in our prior opinion by failing to consider striking the stayed enhancements.
A. Exercise of Discretion in Refusing to Strike Enhancements
Prior to the enactment of Senate Bill No. 620, trial courts lacked discretion to strike firearm enhancements under section 12022.53. (See former § 12022.53, subd. (h).) Under the new law, however, "[t]he 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." (§ 12022.53, subd. (h).) The change in the law applies retroactively to defendants like Fifita whose convictions were not final at the time the law went into effect on January 1, 2018. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.) We remanded Fifita's case for resentencing under this provision.
When conducting a resentencing hearing under Senate Bill No. 620, the trial court applies the same factors that it would have considered if the legislation had been in place at the original sentencing hearing. (See People v. Pearson (2019) 38 Cal.App.5th 112 (Pearson).) Thus, the trial court considers "the factors expressly listed for determining whether to strike enhancements . . . in California Rules of Court, rule 4.428(b)," as well as "the factors listed in California Rules of Court, rule 4.410 (listing general objectives in sentencing)," and "circumstances in aggravation and mitigation under California Rules of Court, rules 4.421 and 4.423. '[U]nless the record affirmatively reflects otherwise,' the trial court is deemed to have considered the factors enumerated in the California Rules of Court." (Pearson, supra, 38 Cal.App.5th at p. 117, quoting Cal. Rules of Court, rule 4.409.) We review the trial court's decision for abuse of discretion. (Pearson, supra, at p. 116.)
At the hearing, the trial court explained its decision not to strike Fifita's firearm enhancements: "I do take into account the factors that are relevant to this decision. Defendant did have a no-record prior to this, but the evidence was strong as to his use of a shotgun which is obviously an extremely dangerous situation. Gang motivation here. So exercising my discretion, I decide not to strike any firearm enhancements."
Fifita contends that this decision represented an abuse of discretion. He points to mitigating factors, including his youth—he was 23 years old at the time of the shooting—and his lack of a prior criminal record. He also notes that he graduated high school and had finished one year of junior college before the shooting, and that he had had no disciplinary incidents or further convictions during his time in custody. He argues that in several respects, his case is less severe than Pearson, where this division affirmed the trial court's refusal to strike firearm enhancements in a case involving the murder of an individual with special needs. (See Pearson, supra, 38 Cal.App.5th at p. 116.) Unlike in Pearson, the victim in this case was not particularly vulnerable and no one was injured. In addition, he notes that although the jury found that he personally and intentionally used a shotgun in the offense, it did not find that he personally fired the shotgun.
Fifita has failed to show that the trial court's decision amounted to an abuse of discretion. As this division explained in Pearson, " '[i]n 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.' " (Pearson, supra, 38 Cal.App.5th at p. 116.)
Although we do not disagree with Fifita that mitigating circumstances were present, other factors supported the trial court's decision not to strike the enhancement. Fifita and Manako, armed with two firearms and driving an SUV, pursued an apparently unarmed pedestrian to a Pizza Hut. When they could not gain immediate access to the store, one of them fired a shotgun into the restaurant, intending to kill Kuaea and endangering the lives of everyone else inside. The jury found that they took these actions for the benefit of a criminal street gang. In his opening brief on appeal, Fifita describes the incident as a "garden variety shooting." Such generalizations are of no assistance. In any case, the label does not detract from the viciousness of the defendants' actions. Fortunately, no one was injured, but that does not minimize the dangerousness of the shooting. Even if the jury did not find beyond a reasonable doubt that Fifita personally fired the shotgun, he played a major role in the crime. By all accounts, Fifita was driving the SUV both before and after the shooting and appears to have been a willing participant throughout.
There is no indication in the record that the trial court failed to apply the correct standards, or that its decision was " 'so irrational or arbitrary that no reasonable person could agree with it.' " (Pearson, supra, 38 Cal.App.5th at p. 116.) For this reason, we may not reverse the trial court on this issue.
B. Failure to Consider Lesser Enhancements
Fifita contends that we must remand the case to the trial court for another resentencing hearing because the record does not affirmatively disclose that the trial court understood it could impose a lesser enhancement instead of the 20-year enhancement under section 12022.53, subdivision (c), even if the lesser enhancement was not charged. We disagree.
Fifita argues that reversal is required under People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison). In that case, the defendant shot and killed the victim during an argument. The trial court imposed a sentence for first degree murder, as well as an enhancement under section 12022.53, subdivision (d) because the jury found that the defendant fired a weapon and proximately caused the victim's death. (See Morrison, supra, 34 Cal.App.5th at p. 220.) The trial court held a hearing to consider striking the enhancement following the enactment of Senate Bill No. 620, but declined to do so. (Morrison, supra, at p. 220.) On appeal, the court remanded for a new sentencing hearing because it was not clear that the trial court understood that it could strike the enhancement and impose a lesser enhancement under section 12022.53, subdivisions (b) or (c). (Morrison, supra, at pp. 223-224.) Fifita contends that the record in this case similarly does not show that the court understood it could impose a lesser enhancement, and that we must remand to give the trial court the opportunity to do so.
We disagree. In Morrison, the prosecutor withdrew the allegations of lesser enhancements under section 12022.53, subdivisions (b) and (c) from the information before the end of the trial, with the result that the enhancement under section 12022.53, subdivision (d) was the only enhancement the jury found true. (See Morrison, supra, 34 Cal.App.5th at p. 221.) Section 12022.53, subdivision (h), newly enacted by Senate Bill No. 620, gives trial courts the authority to " 'strike or dismiss an enhancement otherwise required to be imposed by this section,' " but does not specify that the court may substitute a lesser enhancement in place of the enhancement the jury found true. Because there was no published case at the time holding that the trial court at a resentencing hearing may reduce an enhancement to an uncharged lesser enhancement, the court in Morrison concluded that it could not be sure that the trial court understood it had that authority. (See Morrison, supra, 34 Cal.App.5th at p. 224.)
In this case, by contrast, the jury found true two enhancements under section 12022.53, subdivision (b) in addition to the enhancement under section 12022.53, subdivision (c). The court could have reduced the length of Fifita's enhancement simply by striking the enhancement under section 12022.53, subdivision (c) and imposing rather than staying one of the enhancements under section 12022.53, subdivision (b). We instructed the trial court to consider this possibility in our prior opinion in this case, where we directed the trial court "to reconsider the firearm enhancements—both imposed and stayed." (People v. Fifita, supra, B276521, p. 51.) When it denied Fifita's motion, the trial court stated, "I decide not to strike any firearm enhancements." The record thus shows that the trial court understood its discretion to reduce the enhancement but chose not to do so.
Fifita argues that the trial court may not have understood that it had the authority to reduce the enhancement to one under section 12022.5, subdivision (a), which was not charged in the information. Although the court in Morrison, supra, 34 Cal.App.5th at pp. 222-223 held that the trial court in a resentencing hearing under Senate Bill No. 620 may reduce an enhancement to an uncharged lesser enhancement, at least three other published cases have disagreed with Morrison on this point. (See People v. Garcia (2020) 46 Cal.App.5th 786, 790; People v. Yanez (2020) 44 Cal.App.5th 452, 458-460; People v. Tirado (2019) 38 Cal.App.5th 637, 643 [251 Cal.Rptr.3d 412, 417], review granted Nov. 13, 2019, S257658.) We need not take sides in this disagreement because even if we assume for the sake of argument that the trial court had the authority to reduce Fifita's enhancement to an uncharged enhancement under section 12022.5, subdivision (a), remanding for this purpose would be futile. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The trial court stated unequivocally that it had "decide[d] not to strike any firearm enhancements." Having elected not to reduce Fifita's enhancement from 20 years under section 12022.53, subdivision (c) to 10 years under section 12022.53, subdivision (b), there is no possibility that the court would have decided to reduce the enhancement even further to three, four, or 10 years under section 12022.5, subdivision (a).
Section 12022.5, subdivision (a) provides for an enhancement of three, four, or 10 years for using a firearm in the commission of any felony or attempted felony. Enhancements under section 12022.53 apply only to defendants convicted of certain enumerated felonies. (See § 12022.53, subd. (a).)
C. Failure to Consider Stayed Enhancements
Fifita contends that we must remand the case for another resentencing hearing because the trial court did not follow our instruction to consider striking the stayed enhancements, in addition to those that were imposed.
This argument is without merit. The trial court stated, "I decide not to strike any firearm enhancements." (Italics added.) We infer that the trial court followed our direction and was referring to the stayed enhancements in addition to the enhancement imposed under section 12022.53, subdivision (c).
DISPOSITION
The trial court's order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
JOHNSON, J.
WEINGART, J.*