Opinion
C088426
05-13-2020
THE PEOPLE, Plaintiff and Respondent, v. SAM PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F00958)
A jury had found defendant Sam Perez guilty of premeditated attempted murder, and sustained firearm and gang allegations. It acquitted two codefendants. The trial court sentenced defendant to state prison in November 2015 for an aggregate term of 42 years to life. On appeal, defendant had raised a number of challenges to his conviction for attempted murder, and contended the trial court erred in imposing sentence on the gang enhancement rather than increasing his minimum life term for the attempted murder. At defendant's request, we also took the matter off the November 2017 oral argument calendar for the purpose of receiving supplemental briefing from the parties on whether a (then) recent amendment to the firearm enhancement statute on which he was sentenced (Pen. Code, § 12022.53 (§ 12022.53)), effective January 1, 2018, retroactively applied to defendant's pending appeal and required remand for resentencing. The People conceded the sentencing error and the retroactive application of the statutory amendment, but contended it was not reasonably probable that the trial court would grant any relief under its new discretion to strike or reduce the enhancement. We disagreed; although the remarks at sentencing did not seem to indicate that the trial court would be inclined to exercise its discretion in defendant's favor, it never expressly stated that it would never exercise any sentencing discretion it might have in favor of defendant, and simply spoke of its mandatory choices. As the discretion was for the trial court to exercise and not this court in the first instance (Collateral Loan & Secondhand Dealers Assn. v. County of Sacramento (2014) 223 Cal.App.4th 1032, 1041, fn. 7), we remanded for resentencing. (People v. Perez (Mar. 29, 2018, C080851) [nonpub. opn.].)
Effective January 1, 2018, the Legislature amended section 12022.53, which now provides in pertinent part, "The court may, in the interest of justice . . . and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)
On remand, the trial court held a brief hearing in November 2018 before the trial judge. The trial court declined to exercise its discretion to strike or modify the firearm enhancement, and reimposed it. Defendant now appeals, contending the record does not affirmatively reflect that the trial court was aware it could impose one of the less severe subdivisions of section 12022.53 (that the jury had sustained) as an alternative to striking the findings entirely and therefore we should remand for yet another sentencing hearing. He also raises the issue du jour, contending the record does not contain a finding that he had the ability to pay the minimal fines, fees, and assessments that the trial court imposed, and we must therefore remand for such a finding. We shall affirm the judgment.
We do not include a separate statement of facts here, given that the circumstances underlying the conviction are recited in our prior opinion (which we incorporate by reference) and in any event are not directly relevant to the present issues. We will incorporate such few facts as are necessary in our Discussion below.
DISCUSSION
1.0 The Trial Court Did Not Abuse Its Discretion in Declining to Strike or Reduce the Firearm Enhancement
In addition to submitting written testimonials in mitigation regarding defendant's background, at the hearing defense counsel began by emphasizing defendant's youth and the purported ease with which involvement with gangs can come about. Counsel specifically argued to the court that it could strike the 25-year firearm enhancement or modify the sentence by imposing one of the lesser section 12022.53 allegations that the jury had also sustained. ("I believe the Court under the new law has discretion to either strike the gun enhancement entirely, strike the entire 25 to Life, or impose a modified sentence on the gun; for example, either 20 years for intentional discharge or 10 years for personal use of a gun.") The prosecutor rested on her written arguments, which detailed the circumstances of the offense and the violent nature of defendant's record dating back to his assault on a teacher when he was 13, through his commission of the present offense at the age of 18.
The trial court noted there had been trial testimony about defendant's background in addition to the materials defense counsel had submitted, which it found "helpful." The primary factors to which the trial court kept returning was the "overwhelming and undisputed" evidence (which it discussed) that defendant had been on the hunt for trouble with rival gang members, and the only reason the victim did not die was the extraordinary medical intervention. While the court tried to empathize with the very different background from which defendant came, "that empathy does not cause me in my discretion to be willing to find . . . that the . . . enhancement should be stricken or modified. This was the use of a gun to try to kill someone. And, as I said, the only reason why it's not a murder case is because of extreme, heroic medical intervention . . . ." (Italics added.) It therefore declined to accept the invitation to exercise its discretion in defendant's favor.
We do not need to detail the mitigation materials that defense counsel submitted. The record is explicit that the trial court considered them and found them helpful. The manner in which the trial court decided to weigh them is beyond the power of this court to gainsay, nor is the trial court required to elaborate on its reasoning as to why it did not find them persuasive. (Cf. People v. Sperling (2017) 12 Cal.App.5th 1094, 1102; People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583.) We cannot honor defendant's claim that "a lesser term was the proper choice" based on his youth and these other factors. The trial court was entitled to determine that the cold-blooded disregard of human life was not excused by youth and a bad childhood.
Contrary to defendant's claim, the record does not show the trial court "never acknowledged that it had the authority to not only strike the greatest enhancement, but to impose one of the lesser two." In echo of defense counsel's own term for imposing one of the two lesser terms, as we emphasized above, the court declined to strike or "modify" the sentence. We cannot fathom to what "modify" would apply other than the choice of one of the lesser enhancements. We therefore conclude the trial court did not abuse its discretion in declining to exercise its discretion in defendant's favor.
2.0 Defendant is Not Entitled to a Remand on Ability to Pay
In sentencing, the trial court reimposed a $300 restitution fine (along with its shadow, the stayed parole-revocation fine in the same amount), a $40 assessment for court operations, and a $30 assessment for his criminal conviction. Defendant argues briefly that the trial court erred in imposing these financial sanctions without determining his ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We are not convinced that Dueñas was correctly decided in fashioning this obligation out of the rights under due process to access to the courts, and to be free from incarceration for an involuntary failure to pay fees or fines. (People v. Hicks (2019) 40 Cal.App.5th 320, 325 (Hicks) [briefly summarizing the reasoning of Dueñas], review granted, Nov. 26, 2019, S258946.)
As a result, we need note only that our Supreme Court has started the process of reviewing this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (review granted, Nov. 13, 2019, S257844), which agreed with Dueñas (Kopp, at pp. 95-96). In the meantime, we simply join those authorities that have rejected Dueñas (e.g., Hicks, supra, 40 Cal.App.5th 320, 329) without the need to elaborate any further, and thus do not need to consider the lengthy opposing arguments of the People. The request for a Dueñas remand is denied.
The analysis in Hicks disapproving of the reasoning in Dueñas is adopted in People v. Kingston (2019) 41 Cal.App.5th 272, 279-281 and is paralleled in People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069, People v. Caceres (2019) 39 Cal.App.5th 917, 927, and in the opinions of individual justices in People v. Santos (2019) 38 Cal.App.5th 923, 937-938 (dis. opn. of Elia, J.), and People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1040 (conc. opn. of Benke, J.). --------
DISPOSITION
The judgment is affirmed.
/s/_________
BUTZ, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
HOCH, J.