Opinion
B296032
03-11-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. FIMBRES, Defendant and Appellant.
Judith Kahn, 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, Acting Senior Assistant Attorney General, William H. Shin and Thomas C. Hsieh, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA430666) APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed. Judith Kahn, 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, Acting Senior Assistant Attorney General, William H. Shin and Thomas C. Hsieh, Deputy Attorneys General for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted Michael Fimbres of first degree murder and found true the allegation Fimbres personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of Penal Code section 12022.53, subdivision (d). Fimbres appealed. We affirmed the conviction and remanded with directions for the trial court to conduct a new sentencing hearing and to exercise its discretion whether to strike the firearm enhancement under the recent amendments to section 12022.53, subdivision (h).
Statutory references are to the Penal Code.
On remand the trial court declined to strike the firearm enhancement. Fimbres appealed again. He argues the trial court erred because it misunderstood the scope of its discretion, failed to consider mitigating evidence, and imposed a sentence in violation of the Eighth Amendment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Fimbres of first degree murder and found true the allegation he personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivision (d). The trial court sentenced Fimbres to 25 years to life for the murder conviction, plus 25 years to life for the firearm enhancement.
The People also alleged Fimbres used a firearm within the meaning of section 12022.53, subdivision (b), and personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c), but these allegations were not submitted to the jury. --------
Fimbres appealed. He contended, among other things, he was entitled to a new sentencing hearing because, after the trial court sentenced him, the Legislature amended section 12022.53, subdivision (h), to give the trial court discretion under section 1385 to strike or dismiss a firearm enhancement. We agreed with that contention, affirmed Fimbres's conviction, and remanded for the trial court to exercise its discretion under section 12022.53, subdivision (h), whether to strike the firearm enhancement under section 12022.53, subdivision (d). (People v. Fimbres (Jul. 25, 2018, B279962) [nonpub. opn.].)
On remand the trial court held a hearing and stated: "I have considered the issue. I'm disinclined to exercise my discretion. I remember the case very well. . . . I thought it was a callous, intentional killing, and I see no reason to exercise my discretion to strike the 12022.53(d) allegation." Counsel for Fimbres requested a continuance to obtain and submit "information in mitigation" that would show Fimbres was "doing well" in custody. The court stated: "I don't care if he's doing well . . . . He is someone who I believe should be locked up probably for the rest of his life. He has shown himself incapable of living in a civilized society." The trial court initially denied the request for a continuance and commented: "I think it's amazing that we now have this . . . law being modified and we're getting these folks coming back who were sentenced under the old 12022.53 statute before it was discretionary, but we're doing it. We're hearing it, and I've given you your hearing." Although the trial court stated the sentence it had previously imposed was "appropriate," the court continued the hearing to allow counsel for Fimbres to submit a sentencing memorandum. The court also stated, however, it did "not expect to change [its] ruling."
At the continued hearing the trial court complimented counsel for Fimbres for the "very thorough" sentencing memorandum and stated counsel "went through a lot of work" in presenting "the sad history that exists regarding Mr. Fimbres." The sentencing memorandum described Fimbres's troubled youth and "long struggle with substance abuse," which was "precipitated by a history of trauma and depression." The memorandum also stated Fimbres "voluntarily acknowledge[ed]" wrongdoing and was "remorseful." The trial court stated that Fimbres's "lengthy criminal history" was directly "tied to his drug use," that the court was "particularly impressed" Fimbres completed a 22-week drug program while previously on probation, and that it was a "sad situation" because he relapsed. The trial court recognized counsel for Fimbres "laid out [the] reasons [to strike the enhancement] very well in [the] sentencing memorandum," but the court said it was "not persuaded." The trial court stated: "I'm not inclined to strike the 12022.53(d) allegation. . . . [Fimbres] walked right up to the [victim] and shot him in cold blood. It was not anything but a very deliberate intentional act . . . . And I think that the use-a-gun-go-to-prison law, which is what, for many years, was designed to pass for the purpose of deterring people from using guns, supports the 25-year-to-life sentence." Fimbres appealed.
DISCUSSION
Prior to January 1, 2018 trial courts did not have discretion to strike firearm enhancements under section 12022.53. The Legislature amended section 12022.53, however, to give trial courts discretion to strike or dismiss an enhancement in the interest of justice. (Pen. Code, § 12022.53, subd. (h), amended by Stats. 2017, ch. 682, § 2.) Fimbres argues we should remand the matter again because the amended statute, "on its face, does not appri[se] judges that, on remand, they are free to impose one of the lesser firearm enhancements" and because "at the time of [re]sentencing 'no published case' existed that spelled out this option." Citing People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), decided two months after the trial court resentenced him, Fimbres argues the trial court, when exercising its discretion whether to strike a 25-years-to-life firearm enhancement under section 12022.53, subdivision (d), is not restricted to an "all-or-nothing path," but may impose a 10-year enhancement under section 12022.53, subdivision (b), or a 20-year enhancement under section 12022.53, subdivision (c). Fimbres contends that, because the trial court acknowledged Fimbres's "sad situation," the court might have been "inclined" to impose a lesser enhancement had the court been aware of its "full panoply of [sentencing] options."
The court in Morrison remanded for resentencing because "it [did] not appear" from the record the trial court understood it had discretion under the amended statute "to impose an enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement" under section 12022.53, subdivision (d). (Morrison, supra, 34 Cal.App.5th at pp. 223-224; see People v. Jones (2007) 157 Cal.App.4th 1373, 1383 [remand for resentencing is required where the trial court was "mistaken as to the scope of its discretionary powers"].) The court in Morrison stated that, although the trial court in that case "stated adequate reasons for declining to strike the lifetime enhancement," the record did not clearly indicate whether the trial court would have imposed a lesser enhancement had it known it had authority to do so. (Morrison, at p. 223.) The record in Morrison showed only that the trial court "thought a firearm enhancement was appropriate, but it [did] not show which firearm enhancement it believed was best suited." (Ibid.)
In People v. Tirado (2019) 38 Cal.App.5th 637, review granted Nov. 13, 2019, S257658, however, the court disagreed with Morrison and held: "Nothing in the plain language of sections 1385 and 12022.53, subdivision (h) authorizes a trial court to substitute one enhancement for another. . . . This language indicates the court's power pursuant to these sections is binary: The court can choose to dismiss a charge or enhancement in the interest of justice, or it can choose to take no action. There is nothing in either statute that conveys the power to change, modify, or substitute a charge or enhancement." (Tirado, at p. 643; see People v. Yanez (2020) 44 Cal.App.5th 452 [agreeing with Tirado].) The Supreme Court granted review in Tirado to resolve the conflict between Morrison and Tirado by deciding whether the trial court can impose an enhancement under section 12022.53, subdivision (b) (for personal use of a firearm) or (c) (for personal and intentional discharge of a firearm), as part of its authority under section 1385 and section 12022.53, subdivision (h), to strike an enhancement under subdivision (d) (for personal and intentional discharge of a firearm resulting in death or great bodily injury), even if the lesser enhancements were not charged in the information or indictment and were not submitted to the jury.
In this case, however, we do not need to take sides in the Morrison-Tirado split because the record clearly indicates that, even if the trial court believed it had discretion to impose an enhancement under section 12022.53, subdivision (b) or (c), instead of under subdivision (d), the court would not have imposed either of the lesser enhancements. (See People v. Jones (2019) 32 Cal.App.5th 267, 272-273 ["We are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement' even if it had the discretion."]; People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [remand is not necessary if "the record reveals a clear indication that the trial court would not have reduced the sentence"]; People v. Gamble (2008) 164 Cal.App.4th 891, 901 [if the record clearly shows "'the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required'"]; cf. People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081 [remand is appropriate where "the record does not 'clearly indicate' the court would not have exercised discretion to strike the firearm allegations had the court known it had that discretion"]; People v. Chavez (2018) 22 Cal.App.5th 663, 714 [absent a "clear indication" that the trial court would not have imposed a lesser sentence, "the appropriate remedy is to remand for resentencing"].) "In reviewing whether the trial court made such an unequivocal indication, we consider the trial court's statements and sentencing decisions." (People v. Franks (2019) 35 Cal.App.5th 883, 892; see People v. Jones (2019) 32 Cal.App.5th 267, 273 ["The trial court need not have specifically stated at sentencing it would not strike [or reduce] the enhancement if it had the discretion to do so."].)
Here, the trial court at resentencing stated Fimbres shot his victim "in cold blood" and committed a "callous, intentional killing." The court stated that the 25-years-to-life enhancement "is appropriate" and that Fimbres "should be locked up probably for the rest of his life" because he is "incapable of living in a civilized society." Given this record, there is no possibility the court would have imposed a lesser firearm enhancement even if the court believed it had the discretion to do so. (See People v. McVey (2018) 24 Cal.App.5th 405, 419 [trial court's "pointed comments on the record[ ] and its deliberate choice of the highest possible term for the firearm enhancement" clearly indicated there was "no possibility that, if the case were remanded, the trial court would exercise its discretion to strike [or reduce] the enhancement"]; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 ["no purpose would be served in remanding" where the record clearly indicated "imposing the maximum sentence was appropriate"].)
Fimbres also argues the trial court exercised its discretion in an "arbitrary manner" because the trial court showed "distaste for the new law" and "ignored" mitigating evidence. The record does not support his contention. As the People appropriately point out, even if the trial court disagreed with the new law, that "does not demonstrate that the court failed to apply it." The trial court gave Fimbres the opportunity to be heard, including by continuing the hearing and allowing counsel for Fimbres to submit additional briefing and provide mitigating evidence. And although the trial court initially stated it did not "care" if Fimbres was doing well in prison, the court read and considered counsel for Fimbres's sentencing memorandum, recognized Fimbres's "sad situation," and was "impressed" Fimbres had completed a drug program (information counsel for Fimbres provided in her 35-page sentencing memorandum). The trial court did not find there was no mitigating evidence, only that the court was "not persuaded" by that evidence. (See People v. Pearson (2019) 38 Cal.App.5th 112, 117 ["nothing in the record affirmatively establishes that the trial court did not consider other relevant factors it was required to consider"]; Cal. Rules of Court, rule 4.409 ["Relevant [sentencing] factors . . . will be deemed to have been considered unless the record affirmatively reflects otherwise."].)
Finally, Fimbres argues the enhancement under section 12022.53, subdivision (d), violates the prohibition against cruel and unusual punishment under the Eighth Amendment to the United States Constitution. It does not. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213-1214; People v. Martinez (1999) 76 Cal.App.4th 489, 495; see also People v. Em (2009) 171 Cal.App.4th 964, 977 ["If terms of 25 years to life and 50 years to life are not '"grossly disproportionate"' for petty theft with prior felony convictions, then defendant's total sentence of 50 years to life is not grossly disproportionate to the crime of murder . . . for the vicarious discharge of a firearm resulting in death."].)
DISPOSITION
The judgment is affirmed.
SEGAL, J. We concur:
ZELON, Acting P. J.
FEUER, J.