Opinion
F075543
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. SHALANDER DENNIS GIVENS, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Eric L. Christoffersen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F11902313 )
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Peña, J. and Smith, J.
-ooOoo-
INTRODUCTION
Appellant Shalander Dennis Givens was before the trial court after remand for resentencing on multiple felonies, including three counts of premeditated attempted murder, shooting at an occupied motor vehicle, two counts of being a felon in possession of a firearm, and firearm enhancements. He filed an appeal and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. On this court's own motion, we asked the parties to brief the applicability of Senate Bill 620 and the changes to Penal Code section 12022.53 to this case and its effect on the firearm enhancements.
References to code sections are to the Penal Code unless otherwise specified. --------
The parties agree Senate Bill 620 is applicable to Givens's case, but disagree on whether remand for the trial court to exercise discretion is required. We affirm without remand.
FACTUAL AND PROCEDURAL SUMMARY
Givens was previously before this court, which resulted in an unpublished decision. (People v. Givens (Nov. 3, 2016, F068848 [nonpub. opn.] (Givens I.)). We grant Givens's request for judicial notice filed July 19, 2017, and take judicial notice of the appellate record and opinion in Givens I. Portions of the factual and procedural summary set forth below are taken from the opinion in Givens I.
Givens was accused of firing multiple bullets into a car occupied by an adult and two children. He was charged by information with three counts of premeditated attempted murder (§§ 187, 664, subd. (a); counts 1-3), one count of shooting at an occupied vehicle (§ 246; count 4), one count of being a felon in possession of a firearm at the time of the shooting (§ 29800, subd. (a); count 5), and one count of being a felon in possession of a firearm on a separate occasion (count 6). Counts 1, 2, and 4 included enhancement allegations for personal and intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)). Count 3 alleged personal and intentional discharge of a firearm in violation of section 12022.53, subdivision (c). Each offense was alleged to be gang-related within the meaning of section 186.22, subdivision (b). Givens faced additional punishment for having three prior convictions that qualified as strikes under California's Three Strikes law.
On June 25, 2010, a father and his two young children came under gunfire while stopped at a stop sign in southwest Fresno. Father had been driving a black 2006 Chevrolet HHR and was on his way to visit his sister. He was accompanied by his ten-year-old daughter and six-year-old son.
Father was stopped at the corner of South Plumas Street and East Eden Avenue when a large sport utility vehicle (SUV) pulled up next to him and opened fire. He instinctively moved to shield his children and was wounded on the left side of his body. His son was not hit, but one of the bullets struck his daughter in the head and entered her brain, causing serious though non-lethal injuries. Investigators found over twenty 7.62 x 39 mm cartridge casings at the crime scene, which suggested that the perpetrator had used a high-powered assault rifle.
When police spoke to father about the incident, he described himself as "a father minding his own business" and indicated that the shooting must have been a case of mistaken identity. He had seen two men driving near his sister's neighborhood in the same type of car as his, a black Chevrolet HHR, and suspected they had been the shooter's intended targets. The two individuals were African-American, wore their hair in dreadlocks, and, he believed, were members of a gang from the "Strother" neighborhood, located just a few streets away from his sister's home. Father was not involved in gang activity himself, but had seen these men in the area on prior occasions and knew about "the [type of] people that hang out around there."
The shooting was partially witnessed by a resident of Plumas Street who had looked out of her window after hearing the sound of gunshots. She saw two people in an SUV, including an African-American male who was holding a gun out of the passenger side window. The witness got a good look at the passenger's face, and her eyes were drawn to something on his forehead. She picked Givens out of a photographic lineup the following day, even though police had taken the precaution of obscuring the foreheads of the people in the photographs. After later seeing Givens in court, she realized he had a birthmark in the middle of his forehead. The witness identified Givens at the preliminary hearing and again at trial, testifying that she was certain he was the gunman.
The prosecution submitted a certified prison packet (§ 969b) to prove the prior strike allegations. The documents showed that Givens had suffered felony convictions in 1997 for aggravated kidnapping (§ 209, subd. (b)) and two counts of first degree robbery (§§ 211, 212.5, subd. (a)). Accordingly, all three prior strike allegations were found to be true.
Each of Givens's convictions for premeditated attempted murder was punishable by an indeterminate life sentence with a minimum parole ineligibility period of seven years. (§§ 187, 664, subd. (a), 3046.) Because of true findings on the gang enhancements, sentencing for counts 1-3 was imposed pursuant to the alternate penalty provision in section 186.22, subdivision (b)(5), which requires a prison term of 15 years to life. Pursuant to certain parts of the Three Strikes law (§ 667, subd. (e)(2)(A)(i)-(iii)), each of those terms was tripled, resulting in consecutive base terms of 45 years to life for counts 1-3. The separate firearm enhancements under section 12022.53, subdivision (d) added consecutive terms of 25 years to life to counts 1-2, and the section 12022.53, subdivision (c) enhancement added a consecutive 20-year determinate term to count 3, thereby resulting in a total prison sentence of 185 years to life, plus 20 years. The trial court imposed a stayed sentence for count 4 and concurrent sentences for counts 5-6.
Givens appealed the convictions and in Givens I, we affirmed the judgment in part, reversed in part, and remanded for further proceedings. The section 186.22, subdivision (b) enhancement findings for counts 1, 2, 3, 4, and 5 were reversed pursuant to People v. Elizalde (2015) 61 Cal.4th 523 and People v. Sanchez (2016) 63 Cal.4th 665. Based on the holdings of Elizalde and Sanchez, we concluded the trial court committed prejudicial error in the bifurcated trial of the gang enhancements.
We remanded the matter to the trial court for resentencing, subject to the People's election to retry the gang enhancement allegations. On February 23, 2017, the People elected not to retry the gang enhancement allegations and to proceed with resentencing.
The probation department filed an updated sentencing report on April 21, 2017. The probation department recommended a sentence of 20 determinate years, followed by five consecutive indeterminate terms of 25 years to life, for a total of 145 years to life. As to counts 1 and 2, the probation report recommended the imposition of consecutive indeterminate terms of 25 years to life pursuant to section 12022.53, subdivision (d). As to count 3, probation recommended the imposition of a term of 20 years for the section 12022.53, subdivision (c) enhancement. It was recommended that the section 12022.53, subdivision (d) enhancement appended to count 4 be stricken pursuant to section 12022.53, subdivision (f).
At the April 21, 2017 resentencing hearing, both the People and defense counsel had received and reviewed the updated sentencing report. Defense counsel asked that Givens be treated as though he had "a single strike as part of his sentencing structure." The trial court rejected the request.
The trial court noted that it had reviewed the updated sentencing report, as well as all of the previously filed probation reports. The trial court found that factors in aggravation "clearly" outweighed "those in mitigation." As recommended in the probation report, the trial court imposed consecutive terms of 25 years to life for the section 12022.53, subdivision (d) enhancements appended to counts 1 and 2; and a consecutive term of 20 years for the section 12022.53, subdivision (c) enhancement appended to count 3. The section 12022.53, subdivision (d) enhancement appended to count 4 was stricken pursuant to section 12022.53, subdivision (f). The aggregate term of imprisonment imposed was 20 determinate years, followed by five consecutive indeterminate terms of 25 years to life, for a total of 145 years to life.
Givens filed a notice of appeal on April 24, 2017.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on July 19, 2017. That same day, this court issued its letter to Givens, inviting him to submit a supplemental brief. No supplemental brief was filed.
On February 1, 2018, on its own motion, this court ordered the parties to submit supplemental briefing on the effect of Senate Bill 620 (SB 620) and section 12022.53, subdivision (h), effective January 1, 2018, on the section 12022.53, subdivision (c) and (d) enhancements imposed on Givens. Supplemental appellant's, respondent's, and reply briefs were filed on the issue of application of SB 620 to Givens's sentence.
Senate Bill No. 620
The trial court imposed consecutive terms of 25 years to life for the section 12022.53, subdivision (d) enhancements appended to counts 1 and 2; and a consecutive term of 20 years for the section 12022.53, subdivision (c) enhancement appended to count 3. The section 12022.53, subdivision (d) enhancement appended to count 4 was stricken pursuant to section 12022.53, subdivision (f). The aggregate term of imprisonment imposed was 20 determinate years, followed by five consecutive indeterminate terms of 25 years to life, for a total of 145 years to life.
At the time Givens was charged, convicted, and sentenced, subdivision (d) of section 12022.53 provided: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), ... , personally and intentionally discharges a firearm and proximately causes great bodily injury, ... shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." Section 12022.53, subdivision (c) provided: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." Subdivision (a) of section 12022.53 includes attempted murder as one of the specified offenses.
In addition, at the time Givens was convicted, sentenced, and at resentencing after remand, former section 12022.53, subdivision (h) precluded a trial court from striking an enhancement under this code section. Subdivision (f) of section 12022.53 provided the only exception to mandatory imposition of a section 12022.53 enhancement.
Thus, the trial court here was required to, and did, enhance Givens's sentence pursuant to section 12022.53, subdivisions (c) and (d) by imposing a 20-year consecutive term for the section 12022.53, subdivision (c) enhancement appended to count 3; and two, 25-year-to-life terms for the section 12022.53, subdivision (d) enhancement appended to counts 1 and 2. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1128.)
After Givens was resentenced after remand, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 620. (Stats. 2017, ch. 682, §§ 1, 2.) As of January 1, 2018, subdivision (h) of section 12022.53 provides: "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."
Relying primarily upon People v. Francis (1969) 71 Cal.2d 66 and In re Estrada (1965) 63 Cal.2d 740, the People concede the foregoing amendment applies retroactively to Givens's case when the amendment went into effect. We accept the concession without further analysis, and turn to the People's claim remand is not appropriate because no reasonable court would exercise its discretion to strike Givens's firearm enhancements. We agree.
Givens was convicted of three counts of attempted premediated murder, and one count of shooting at an occupied motor vehicle. Givens shot into a motor vehicle carrying a father and his two young children. Over twenty cartridges from a high-powered assault rifle were found at the scene. The father was injured, as was his daughter. She was hit in the head by a bullet, causing serious injuries, and leaving her in critical condition. In addition, one of her fingers was nearly severed by bullets and had to be reattached.
Givens had suffered prior felony convictions in 1997 for aggravated kidnapping (§ 209, subd. (b)) and two counts of first degree robbery (§§ 211, 212.5, subd. (a)). He had three prior strike convictions at the time he committed the current offenses. Although Givens asked to be treated at resentencing as though he had a single strike, the trial court refused to do so and indicated it would apply all applicable strikes based upon the opinion in Givens I.
The initial probation report prepared for sentencing noted there were no factors in mitigation and multiple factors in aggravation. Among the factors in aggravation were that the offenses involved great violence, great bodily harm, threat of great bodily harm, or other facts disclosing a high degree of cruelty, viciousness, or callousness. Factors in aggravation pertaining to Givens included that he had engaged in violent conduct that posed a serious danger to society; he was on parole or probation at the time of the current offenses; his prior convictions were numerous and of increasing seriousness; he had served a prior prison term; and his performance on parole or probation was unsatisfactory. At resentencing, the trial court noted it had reviewed the prior probation reports and aggravating factors.
Furthermore, when faced with the discretion to impose a greater or lesser punishment, the trial court exercised its discretion to impose the more severe punishment. The trial court exercised its discretion to impose the aggravated terms of imprisonment on counts 5 and 6. On the terms imposed for counts 1, 2, and 3, the trial court exercised its discretion to impose consecutive, not concurrent, terms of imprisonment.
In sum, Givens committed a vicious crime by firing a high-powered assault rifle multiple times at a father and his young children. This reckless and vicious act caused great bodily harm to two innocent victims. Givens committed these crimes while he was on parole and/or probation, and had suffered three prior strikes before committing the current offenses. In imposing a sentence, it is apparent the trial court gave careful consideration to the sentence to be imposed and carefully crafted a total sentence that it felt was appropriate for the offenses and the offender.
Although Givens contends the matter should be remanded for an exercise of the trial court's discretion, we agree with the People it is inconceivable the trial court would strike any of the firearm enhancements on remand, considering defendant's record and the trial court's sentencing rationale. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
DISPOSITION
The judgment is affirmed.