Opinion
B319892
02-28-2024
THE PEOPLE, Plaintiff and Respondent, v. JOE PATRICK GAINES, Defendant and Appellant.
Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Nicholas J. Webster and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. TA063063 Ricardo R. Ocampo, Judge.
Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Nicholas J. Webster and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
In 2002, a trial court sentenced Joe Gaines to life without the possibility of parole plus 25 years to life for using a gun to commit a murder, per Penal Code section 12022.53, subdivision (d). Ultimately, the matter was remanded to the trial court to consider whether to strike the section 12022.53, subdivision (d), enhancement. The trial court denied Gaines's request to strike that enhancement, and he now appeals. Finding no abuse of discretion, we affirm the order denying Gaines's request for resentencing.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
I. The underlying crime, verdict, and sentence
The facts underlying Gaines's crime are from People v. Gaines (Nov. 24, 2003, B160388) [nonpub. opn.], of which we have taken judicial notice at Gaines's request.
In July 2001, 17-year-old Gaines and 16-year-old Ollie Hawkins lived near each other and went to school together. One day that month, Gaines told Hawkins they were going to visit a girl named Nicole. Gaines gave Hawkins a gun.
Gaines and Hawkins walked to Nicole's house, and Nicole's grandmother, Kathryn Dawson, opened the door. Dawson knew Gaines, as he had been at her house previously for a party and Dawson's son had dated Gaines's mother. Dawson invited them in. After talking for a bit in the living room, Dawson went to the kitchen. Gaines gestured to Hawkins to use the gun. Hawkins refused and gave the gun to Gaines, who went into the kitchen, pointed the gun at Dawson, and told her to give him money. Dawson dumped the contents of her purse onto the floor. Gaines gave the gun back to Hawkins and began gathering the money. Gaines ordered Dawson to go to a bedroom. When Dawson tried to lock herself in the bedroom, Gaines punched her, began to smother her with a pillow, and told Hawkins to shoot Dawson. Hawkins refused, so Gaines shot Dawson in the head through the pillow. Later, Gaines told "Leo" that he, Gaines, had" 'popped that bitch.'" (People v. Gaines, supra, B160388.)
In 2002, a jury convicted Gaines of special circumstance first degree murder (§§ 187, subd. (a), 190.2, subd. (a)(17); count 1), first degree burglary (§ 459; count 2), attempted first degree robbery (§§ 664, 211; count 3), and first degree home invasion robbery (§ 211; count 4). The jury found true personal gun use allegations (§§ 12022.53, subds. (b), (c) &(d), 12022.5, subd. (a)(1)) and a principal-armed allegation (§ 12022, subd. (a)(1)). That same year, the trial court sentenced Gaines on count 1 to life without the possibility of parole plus 25 years to life for the section 12022.53, subdivision (d), firearm enhancement and imposed but stayed sentences on the remaining counts and enhancements.
On appeal, this Division vacated the attempted robbery conviction and related special circumstance finding but affirmed the judgment in all other respects. (People v. Gaines, supra, B160388.)
II. Postconviction proceedings
In 2015, Gaines petitioned for a writ of habeas corpus, alleging that his sentence was cruel and unusual. The trial court held a resentencing hearing but reimposed the same sentence. On appeal, this Division found that Gaines's constitutional challenge to his sentence was moot. However, the appellate court remanded the matter to the trial court to consider then recent amendments to section 12022.53 giving trial courts discretion to strike firearm enhancements in the interest of justice. (People v. Gaines (Aug. 20, 2018, B277126) [nonpub. opn.].)
The court also remanded the matter for a hearing under People v. Franklin (2016) 63 Cal.4th 261.
On remand, Gaines moved to strike or to dismiss his firearm enhancements; he did not alternatively ask the trial court to impose a lesser enhancement. On January 20, 2022, the trial court held a hearing on the motion and denied it. In doing so, the trial court said it had considered, among others, the probation officer's reports, court transcripts, the Court of Appeal opinion on direct appeal, and matters related to Gaines's youth or age when he committed the crime. The trial court adopted the findings of the original sentencing judge: that Gaines used his prior relationship with Dawson to gain entry to her home; he used a gun to rob Dawson; and when Gaines punched and then shot Dawson, Gaines already had the money and therefore there was "no further necessity" for the violence. The trial court stated that this "is far from the case in which the court should exercise its discretion to strike or dismiss such an allegation or such allegations. For these reasons, as I indicated, the sentence . . . will remain the same."
DISCUSSION
As we have detailed, Gaines was charged with and the jury found true personal gun use allegations under section 12022.53, subdivisions (b), (c), and (d). The trial court sentenced Gaines to 25 years to life under subdivision (d) of that section, and, at the January 20, 2022 hearing on whether to strike that enhancement, refused to do so. On the same day as the hearing, our California Supreme Court issued People v. Tirado (2022) 12 Cal.5th 688, 694 (Tirado), which clarified the scope of a trial court's discretion when considering whether to strike a firearm enhancement. Gaines therefore now contends that the trial court misunderstood the scope of its discretion, namely that it could either strike the section 12022.53 enhancement or sentence him to a lesser term under subdivisions (b) and (c). As we now explain, we disagree.
The People argue that Gaines forfeited this argument because his motion only asked the trial court to strike the enhancement and did not ask, alternatively, that a lesser term be imposed. We address the issue on the merits, without deciding whether it was forfeited.
A defendant is entitled to a trial court's exercise of informed discretion at sentencing. (Tirado, supra, 12 Cal.5th at p. 694.) If a court acts unaware of the scope of its discretion, the court will have abused its discretion. (Ibid.) Absent evidence to the contrary, we presume the trial court knew and applied governing law. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
When sentencing a defendant before 2018, trial courts had to impose a section 12022.53 enhancement. (Tirado, supra, 12 Cal.5th at p. 695.) Therefore, when the trial court originally sentenced Gaines in 2002, it had to impose the enhancement. But the Legislature thereafter enacted Senate Bill No. 620 to give trial courts discretion to strike the enhancement in the interest of justice. (Tirado, at pp. 695-696; § 12022.53, subd. (h).) Tirado, at page 692, clarified that under the new law, trial courts have discretion either to strike the enhancement or to impose an uncharged lesser enhancement under subdivisions (b) or (c) of section 12022.53.
Here, Gaines argues that the trial court was unaware it could impose a 10-or-20-year term under subdivisions (b) or (c) because Tirado was issued the same day as his resentencing hearing. Tirado, however, resolved a split in the Courts of Appeal about whether a trial court could strike a greater enhancement and sentence a defendant on an uncharged lesser enhancement not found true by a jury. Here, Gaines was charged with the lesser enhancements, the jury found them true, and the trial court stayed them in favor of imposing the most severe enhancement. Even before Tirado, courts had discretion under section 1385 to strike the greater enhancement and impose the charged, lesser one. People v. Morrison (2019) 34 Cal.App.5th 217, 222, thus observed that in a case where a jury has "also returned true findings of the lesser enhancements under section 12022.53, subdivisions (b) and (c), the striking of an enhancement under section 12022.53, subdivision (d) would leave intact the remaining findings, and an enhancement under the greatest of those provisions would be mandatory unless those findings were also stricken in the interests of justice." (Accord, People v. Wang (2020) 46 Cal.App.5th 1055, 1091.) Thus, at the time of Gaines's January 20, 2022 hearing, there was no uncertainty in the law that Tirado resolved where, as here, the lesser enhancements were charged and found true by the jury.
DISPOSITION
The order is affirmed.
We concur: LAVIN, J., ADAMS, J.