Opinion
F085823
01-03-2024
THE PEOPLE, Plaintiff and Respondent, v. DESMOND JEROME PERRY, Defendant and Appellant.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF173254A. John W. Lua, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Desmond Jerome Perry appeals following a remand for resentencing under People v. Tirado (2022) 12 Cal.5th 688 (Tirado). (People v. Perry (June 2, 2022, F079881) [nonpub. opn.] (Perry II).) In this appeal, defendant challenges the trial court's denial of his request for relief from one or both firearm enhancements under Penal Code section 1385 as amended by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81), effective January 1, 2022. Defendant was resentenced in January 2023, more than one year after the effective date of Senate Bill 81. Following supplemental briefing on the issue, we conclude that defendant forfeited review of his claims by failing to object in the trial court and we reject his derivative claim of ineffective assistance of counsel (IAC). Even if we were to reach the merits of his claims, however, we find no error. Accordingly, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL HISTORY
Defendant was charged with two counts of willful, deliberate and premediated murder with a multiple-victims special circumstance (counts 1 &2), and one count of shooting at an occupied dwelling (count 3). (§§ 187, subd. (a), 189, subd. (a), 190.2, subd. (a)(3), 246.) The jury convicted defendant of two counts of murder, but found the attached premeditation allegations not true. The jury also convicted defendant of shooting at an occupied dwelling and, on all three counts, found true that defendant personally and intentionally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) On counts 1 and 2, the trial court sentenced defendant to two consecutive terms of 15 years to life for second degree murder plus an additional 25 years to life for the firearm enhancement, for a total indeterminate term of 80 years to life. On count 3, the trial court sentenced defendant to the lower term of three years plus an additional term of 25 years to life for the firearm enhancement, stayed under former section 654.
In his first appeal, defendant argued that defense counsel rendered IAC when counsel failed to request that the trial court exercise its discretion to substitute a lesser uncharged firearm enhancement under section 12022.53 in lieu of the greater enhancement found true by the jury. Relatedly, defendant argued that he was entitled to remand so the trial court could exercise its discretion to substitute a lesser enhancement and that the trial court abused its discretion when it declined his request to strike the firearm enhancement under former section 1385. Finally, he argued that the trial court abused its discretion in imposing consecutive sentences on counts 1 and 2.
The People disputed defendant's entitlement to relief. In Perry I, we found no errors and affirmed the judgment. (People v. Perry (Dec. 22, 2021, F079881) [nonpub. opn.] (Perry I).) The California Supreme Court granted review and transferred the matter back to us with directions to vacate our opinion and reconsider the cause in light of the decision in Tirado, supra, 12 Cal.5th 688. We did so and, in Perry II, we again found no sentencing error under section 1385, but concluded that defendant was entitled to relief under Tirado and remanded for resentencing. (Perry II, supra, F079881 [2022 Cal.App. Unpub. Lexis 3438, *3, 19, 23, 31].) In rejecting defendant's claim for relief under section 1385, we noted that on remand, the parties and the trial court could address the amendment to the statute under Senate Bill 81. (Perry II, supra, F079881 [2022 Cal.App. Unpub. Lexis 3438, *3 &fn. 4, 23, 31].)
Section 1385 was amended subsequent to Senate Bill 81, but that amendment is not relevant to the issues raised in this appeal. (Assembly Bill No. 200 (2021-2022 Reg. Sess.) [amending § 1385, eff. June 30, 2022].) The Legislature also recently made nonsubstantive changes to numerous code sections as part of a code maintenance bill, including section 1385. (Assem. Bill No. 1754, approved by the Governor July 27, 2023 (2023-2024 Reg. Sess.) Stats. 2023, ch. 131, § 160, eff. Jan. 1, 2024.)
On remand, the trial court declined to exercise its discretion to impose lesser uncharged enhancements in lieu of the greater enhancements found true by the jury or to dismiss one of the enhancements under section 1385 as amended by Senate Bill 81. The court reimposed the same sentence and defendant filed a timely notice of appeal, claiming sentencing error under section 1385 as amended. The People dispute defendant's entitlement to any relief on appeal.
After a review of the record, we provided the parties the opportunity to file supplemental letter briefs addressing whether defendant forfeited his claims by failing to object and, if so, whether defense counsel was ineffective. (Gov. Code, § 68081.) Defendant argues that his request for relief under section 1385 was sufficient to preserve his appellate claims or, alternatively, that he had no meaningful opportunity to object. If this court disagrees, defendant argues that counsel rendered IAC and the error was prejudicial. The People contend defendant's claims are forfeited and defense counsel was not ineffective.
We conclude that defendant's failure to object on the grounds now advanced on appeal forfeits review of his claims and that counsel's failure to object to the sentencing decision does not constitute IAC. Further, defendant's claims of sentencing error fail even if we consider the merits. Therefore, the judgment is affirmed.
We rely on our factual summary in Perry II, supra, F079881 (2022 Cal.App. Unpub. Lexis 3438).
There was no dispute at trial that Michael Wiggins and his 12-year-old niece, Trinity Wiggins, were shot and killed by defendant on July 22, 2018.Wiggins, who was in a long-term relationship with defendant's cousin, T., was the intended target, but defendant claimed he fired in self-defense after Wiggins pointed a gun at him. Trinity was not a target and defendant was not aware of her presence, but she was struck and killed by one of the bullets that pierced the exterior wall of the house.
Because the victims share a last name, we will refer to Trinity by her first name. No disrespect is intended.
I. Prosecution Evidence
A. Background
At the time of the shooting, Wiggins, T., and their three young children lived with Wiggins's brother, D., at D.'s house in California City. D.'s father-in-law and brother-inlaw, V. and V.S., Jr., also lived at the house, and the four children D. shared with his estranged wife, including Trinity, visited often.
Wiggins and T. had been together for six or seven years, and they moved in with D. approximately six months before the shooting. T. testified that Wiggins was never abusive toward their three children, but, during the first half of their relationship, he physically abused her. During the three years leading up to the crime, although there was no physical abuse, the couple argued often and T. said Wiggins would threaten her. T. testified that Wiggins did not follow through on his threats, but, in statements, she said he had a bad temper, did not back away from conflict, was paranoid and controlling, did not like her talking to other men, and would not allow her to leave.
In contrast, D. testified he never witnessed any physical abuse between Wiggins and T. and never saw Wiggins try to control T. However, he worked and was not at home with them during the day. D. said the couple bickered occasionally, which he found "funny" and "hilarious," his testimony suggesting that the disagreements resolved quickly and were not serious. D. described Wiggins as calm and nonviolent, and he said T. did not seem afraid of Wiggins, she left the house with the children whenever she wanted, and she would not have listened to Wiggins had he tried to control her. Neither Wiggins nor T. had a vehicle, but D. testified he had seen T. threaten to leave before and, one time, he saw her pack up and leave with the children via Uber. D. said Wiggins was not unusually upset when T. left, and she returned home the next day.
T. and defendant met as children and had very sporadic contact over the years, falling in and out of touch with one another. Approximately one month before the shooting, T. reconnected again with defendant through Facebook. At the time, defendant lived in Acton, approximately 45 minutes to one hour away from California City. They did not see one another in person during this period, but communicated several times a day through Facebook Messenger. In the past, T. told defendant that Wiggins was "gang-related," and, when they reconnected, T. told defendant that she and Wiggins were having trouble and she wanted to leave. She mentioned going to a shelter, but defendant, who lived in an apartment with his girlfriend and their young daughter at the time, did not want her to do so, and he offered to let her and her children stay with him until she could get on her feet. T. told defendant that Wiggins was beating her up and had threatened to burn the house down. T. testified she was afraid of Wiggins, but she trusted defendant, whom she thought was calm enough to handle Wiggins without trouble arising.
B. The Shooting
On the day of the shooting, T. was messaging with defendant. T. testified she was feeling unsafe and at 6:09 p.m., she messaged defendant about going to a shelter. Defendant rejected that idea, and he asked where she was and what was happening. T. responded she was at home and said, "'BD is losing his mind,'" referring to Wiggins as "[b]aby daddy." Defendant asked her what Wiggins was doing and where she lived. T. provided the address and responded, "'Saying he's going to set the house on fire with me and the kids in it.'" Defendant told T. he was going to come and get her. When defendant told T. he was on his way, she messaged, "'Cuzzo, don't do nothing to get you in trouble.'"
At trial, T. explained she sent that warning because she was worried Wiggins, who was larger, might hurt defendant. However, she also testified that Wiggins was aware she and defendant were messaging each other and he "was okay with it." Wiggins had not taken any steps to carry out his alleged threat to burn the house down, and when defendant asked T. if Wiggins had touched her, she told him no.
At approximately 7:30 p.m., defendant messaged T. that he was there. She walked outside, hugged him, and told him she would be back with her stuff. Defendant was alone and standing at the end of the walkway. T. testified the children were playing inside and Wiggins was on their bed in the living room. Wiggins did not say anything to her, and she did not tell him where she was going. She went into a room in the back of the house and began packing items to go.
T. testified that she heard Wiggins and defendant talking outside, heard defendant tell Wiggins to go back inside, and then heard multiple gunshots. She said she did not see Wiggins go outside and did not see defendant with a gun. After hearing the shots, she was in shock and screamed. She saw Wiggins in the hallway lying down with a gunshot wound to his chest. He did not say anything to her and, when she looked outside, defendant was gone and no one else was around.
D. was not home when the shooting occurred, but V. and his son were in their room. V. did not hear anything preceding the shooting and did not know where the shots were coming from, so he told his son to exit the house through the window in their room. V. then opened the door and saw Wiggins staggering down the hall. Wiggins was bleeding and T. was behind him screaming hysterically. Wiggins slid down the wall and told V. to call 911, which he did. V. heard T. saying something like "'Desmond,'" and, in T.'s testimony, she identified her voice in the background of the 911 call saying, "'It was Desmond.'"
The police station was nearby and officers arrived quickly. Trinity was inside the house on the floor, killed by a bullet that entered her right shoulder and traveled left through her chest. Wiggins was in the hallway with a single gunshot wound and was still conscious. He was able to provide his name and told police "'her cousin'" shot him before he started fading into unconsciousness.
Wiggins was transported to the hospital, where he died from his injury. He had methamphetamine; benzoylecgonine, a metabolite of cocaine; and THC, the active ingredient in marijuana, in his system when he died. However, D. had never seen Wiggins use drugs, T. did not see him use drugs that day, and police did not find any drugs or drug paraphernalia in the house.
At the scene, T. told Officer Hulse defendant was texting her and Hulse took her phone. Defendant had asked if Wiggins was okay and if the police were there. Hulse responded from T.'s phone, "'I'm scared. What should I do?'" Defendant responded that "'one of his friends got into it, right,'" and Hulse texted back, "'I don't know what you are talking about. Where are you?'" Defendant responded, "'the 15. I'm hide in Vegas.'" After more texting back and forth, defendant texted, "'[I]t was two. He shot from the car. He is going to San Fran. I told him to shoot if he pulled a gun.'"
T. gave multiple statements to law enforcement. Hulse testified that T. said she saw defendant pull his gun first and she saw Wiggins point a pellet gun at defendant. Officer Hansen testified that T. stated she heard Wiggins tell the children to go inside, and she heard Wiggins and defendant begin arguing. When she looked outside, she saw defendant grab a large black weapon from the trunk of his car, heard four or five shots, saw Wiggins struggling inside, and saw defendant put his gun back in the car and drive off. She also told Hansen there was possibly a black male driving the car and defendant was possibly the passenger. At trial, T. denied making those statements and maintained she did not see either man with a gun and did not see defendant leave.
C. Other Evidence
Officers located five shell casings at the scene and four bullet holes in the front of the house in a pattern that suggested the shooter was moving while firing. Three of the bullets went through the exterior wall into the home. Although the murder weapon was never located, there was no dispute at trial that defendant used his legally purchased and owned Smith &Wesson M&P Sport, an AR-15-type semiautomatic rifle. Officers also located a pellet gun just inside the front door of D.'s house. It lacked any markings to identify it as a pellet gun, and Hulse conceded it could be mistaken for a real gun "In the heat of the moment ._"
On August 1, 2018, defendant's car was found abandoned in the desert off a dirt road after a county employee working in the area saw it and called it in. The same day, based on his cell phone location, defendant was tracked down at the Lancaster apartment of a coworker and arrested.
T. later wrote Wiggins's and Trinity's family an apology letter. In the letter, she asked for forgiveness and stated she knew they were angry, but she was not at fault and was also "'hurting just as much ....'" She said defendant was only supposed to pick her up and he "'made the decision .. . on his own to shoot [Wiggins].'" She also wrote, "'You guys know how Junior is,'" referring to Wiggins, and "'I told him Junior was angry and he was making threats towards me and the boys. I also told him that I wasn't in any danger.'" However, none of her messages with defendant reflected that she told him things had calmed down and, on cross-examination, she conceded she did not tell him she was no longer in danger or to go back home.
II. Defense Evidence
A. Character Evidence
Defendant's mother, his girlfriend with whom he lived and shared a young daughter, and one of his coworkers testified to defendant's character. All three described defendant as even tempered and honest, and stated he was not aggressive or confrontational. Defendant was a full-time city bus driver in Los Angeles, and his coworker testified it was a daily challenge dealing with people, but defendant had a good reputation with other drivers, and he was always bubbly and helpful.
B. Defendant's Girlfriend's Testimony
Defendant's girlfriend was at home with defendant the day of the shooting. She testified that when he left their apartment that evening, he was concerned about his cousin, but not angry or upset. He owned a firearm that used to be kept in the closet, but was more recently kept in the trunk of his car. Defendant did not come home or call her after he left the apartment that day and he did not respond to her text messages. She testified that when deputies searched their apartment two days after the shooting, she told them defendant's gun was not in the apartment anymore because of their daughter. She denied she told police he had it with him for protection from T.'s boyfriend.
C. Defendant's Testimony
Defendant also testified. He and T. did not maintain consistent contact, but they reconnected periodically. Several years before the shooting, T. told him Wiggins was "'gang-related'" after he went to pick her up and some "really aggressive" men came out of the house to question him.
Approximately three weeks before the shooting, they reconnected through Facebook and T. told him via Facebook Messenger that Wiggins was threatening her and the kids. Defendant testified that T. also said Wiggins pointed "'a big ass gun'" at them and she mentioned going to a shelter. Defendant did not want T. to go to a shelter and he told her she could come to his house. On the day of the shooting, she messaged defendant that Wiggins had threatened to burn down the house with her and the kids in it. Defendant was concerned and worried, but he did not call police because he had the impression from their conversations that T. did not want the police involved.
Defendant owned an unmodified semiautomatic firearm he purchased from a licensed dealer six or seven years before the shooting. He also owned three 10-round magazines, one of which was loaded, and he kept everything in a gun bag. Defendant testified he initially bought the gun for personal protection, but only used it for target practice at a gun range. He had moved the unloaded firearm and magazines from a shelf in his closet to the trunk of his car about a year earlier, after his daughter grew curious and attempted to reach the shelf with a stool.
Defendant went to pick T. up that evening. He got out of the car after he arrived, opened the trunk, and moved stuff around to make room for T.'s bags. He spotted his firearm in the trunk at that time. T. came out and greeted him and then said she was going to get her belongings. Defendant did not see any children, but he knew T. and Wiggins had three children and he saw a man's head through the front door when T. reentered the house.
As defendant waited between the rear passenger door and the trunk, two of T.'s and Wiggins's children came out of the house and he said hi to them. Wiggins then came out and told the children to go back in the house. He did not appear upset or angry to defendant, but he asked defendant, "'What's up?'" Defendant responded that he was taking T. and the kids with him, and Wiggins appeared shocked. Wiggins told defendant that he was not going to take the kids and T, and defendant responded that it was T.'s choice, not his or Wiggins's.
Wiggins seemed upset, but was not yelling. He stated defendant was "not gonna fucking take the kids and [T.]" Defendant told Wiggins he was just there to pick up his cousin and was not there to argue or fight, but Wiggins stated, "'Shut the fuck up. I'll beat your ass.'" Defendant told Wiggins to go back inside the house, and Wiggins repeated the threat and told defendant he was going to kill defendant and T. Defendant again told Wiggins to go back inside the house. Wiggins repeated his threats and moved toward defendant aggressively. Afraid, defendant then grabbed his rifle from the trunk, but did not point it at Wiggins. He told Wiggins to leave him alone and go back in the house.
Wiggins smirked and defendant realized the orange gun lock was on the weapon. Defendant removed the lock, and Wiggins "stormed" into the house after telling defendant, "'Yeah, you're not going nowhere ....'" As defendant went to retrieve his cell phone from his car, Wiggins reappeared carrying what defendant said looked like a large rifle. Defendant testified that Wiggins was manipulating the gun and he moved to the trunk as fast as he could, grabbed a magazine and loaded his rifle. Wiggins was then pointing his weapon from the doorway of the house. As defendant prepared to fire, Wiggins pulled the gun back through the doorway. Wiggins stuck the gun out of the door again after manipulating it. Defendant testified he thought Wiggins was loading the gun and that it was real, so when Wiggins pointed it at him the second time, he fired five shots as he ran.
Defendant stated he was only trying to hit Wiggins and did not know Trinity was in the house. After Wiggins retreated into the house, defendant jumped in his car and drove off. He testified he was terrified and had never shot at anyone before. He just kept driving down dirt roads until eventually his car got stuck in the desert sand and he was unable to free it. He texted T. to ask if everyone was okay and if she had called the police. After she responded and asked what she should do, his fear increased and he made up a story about someone else shooting. He then called a coworker he dated briefly in the past during a period of separation from his girlfriend and she picked him up. He testified he threw his gun in the dirt near the car and left it there.
Defendant said he learned two people died in the shooting when someone from his work posted a news article about it to a Facebook group chat. At one point between the shooting and his arrest, he went to Texas with his coworker, but they later returned to California and he was arrested at her apartment.
D. Hulse's Testimony
Hulse testified that defendant's car was recovered on August 1, 2018. It was found in the desert approximately 20 minutes from the scene of the shooting, near a county building. The location was still within city limits, but was off a dirt road and officers needed 4x4 off-road vehicles to access the area.
III. Rebuttal Evidence
Hulse testified that 10-15 officers spent all day searching the desert around defendant's car, but never found the firearm. However, there was a pond by the county building, approximately 100-150 yards from the car, and it was surrounded by so much vegetation that they could not search it. Hulse also testified that on the day of defendant's arrest, he did not turn himself in right away. Instead, he did so that night after law enforcement waited outside his coworker's apartment all day.
Hulse testified that on the day they searched defendant's apartment, defendant's girlfriend texted him to turn himself in, but he never responded to her. During her interview, which was not recorded, she said defendant usually kept his gun in the closet. She did not know why it was not in the apartment, but said he might have taken it for protection. She also did not know who defendant would need protection from, but said maybe his cousin's boyfriend.
DISCUSSION
I. Procedural Background
Defendant was resentenced on January 27, 2023, more than one year after section 1385 was amended by Senate Bill 81. Prior to the resentencing hearing, defense counsel filed a sentencing brief requesting the trial court impose concurrent rather than consecutive sentences and either dismiss one of the firearm enhancements under section 1385 or, under Tirado and section 12022.53, subdivision (b), impose a lesser firearm enhancement of 10 years. In the sentencing brief, defense counsel identified the following six mitigating factors: the crime was out of character for defendant, who had no criminal record; the crime was related to one of Wiggins's suicidal or homicidal threats and his commission of domestic violence against defendant's cousin; the crime would not have occurred absent Wiggins's threatening behavior; the crime was committed due to unusual circumstances; Wiggins was the aggressor; and the crime was unlikely to recur. (Citing Cal. Rules of Court, rule 4.423(a)(1)-(5), (b)(1), (4)-(5).) Defense counsel also identified two aggravating factors, that the crime involved great violence or bodily harm, and defendant used a weapon. (Citing id., rule 4.421(a)(1)-(2).) Defense counsel argued that the mitigating factors outweighed the aggravating factors, and that imposition of both enhancements would result in a sentence that exceeded 20 years. (§ 1385, subd. (c)(2)(C).)
During the hearing, counsel submitted on the "fairly comprehensive" brief filed. The prosecutor then argued against the exercise of any leniency in sentencing, and stated that circumstances had not changed since the trial. Defense counsel responded that the changed circumstances were the numerous changes to the law in the interim, Trinity was not a target and her killing was accidental, defendant's actions that day were out of character for him, and both Wiggins's behavior and defendant's intent to help his cousin were mitigating factors.
In selecting consecutive terms, the trial court relied on the fact there were multiple victims. In exercising its discretion to impose both 25-year-to-life firearm enhancements, the trial court expressly recognized that in mitigation, defendant had a minimal or nonexistent criminal history and noted that the firearm used was legally registered to defendant so that factor would "not count against him." (Cal. Rules of Court, rule 4.423(b)(1), (c).) In aggravation, the court found that defendant's conduct inflicted great harm and was violent, involving shooting a high-powered rifle in the direction of an occupied house, killing two people. (Id., rule 4.421(a)(1), (b)(1).) The court also commented generally that "what was going through [defendant's] mind might not necessarily have been what was actually occurring" and it was not supported by other evidence, but he believed his cousin was in danger when he went to her house to pick her up. However, the jury had rejected his claim of self-defense.
On appeal, defendant argues that the trial court was required to determine whether dismissal of a firearm enhancement would endanger public safety and, if not, it must afford the fact of multiple firearm enhancements great weight that favored dismissal. Defendant claims that the court never mentioned public safety and, therefore, failed to engage in the requisite analysis under section 1385. Alternatively, if we imply the analysis, defendant claims the court abused its discretion in declining to dismiss one of the enhancements.
II. Section 1385
Following amendment by Senate Bill 81, effective January 1, 2022, section 1385, subdivisions (a) through (c)(2), provides, in relevant part:
"(a) The judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.
"(b) [¶] (1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).
"(2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).
"(c) [¶] (1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
"(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
"(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
"(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.
"(D) The current offense is connected to mental illness.
"(E) The current offense is connected to prior victimization or childhood trauma. "(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.
"(G) The defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case.
"(H) The enhancement is based on a prior conviction that is over five years old. "(I) Though a firearm was used in the current offense, it was inoperable or unloaded."
In this case, the circumstances enumerated under section 1385, subdivision (c)(2)(B) and (c)(2)(C), are at issue. Appellate courts have uniformly rejected the view that section 1385 as amended mandates dismissal if any of the enumerated mitigating circumstances are present, and defendant does not claim to the contrary. (E.g., People v. Cota (2023) 97 Cal.App.5th 318, 335; People v. Ortiz (2023) 87 Cal.App.5th 1087, 1098, review granted Apr. 12, 2023, S278894; People v. Walker (2022) 86 Cal.App.5th 386, 396 (Walker), review granted Mar. 22, 2023, S278309.) However, there is a split of authority over whether the presence of a mitigating circumstance creates a rebuttable presumption "that dismissal of an enhancement is in the furtherance of justice (and that its dismissal is required) unless the court makes a finding that the resultingly shorter sentence due to dismissal 'would endanger public safety.'" (Walker, supra, at p. 398 [interpreting § 1385, subds. (c)(1), (2)]; contra, Ortiz, supra, at p. 1098 [declining to follow Walker, and concluding that "the ultimate question before the trial court remains whether it is in the furtherance of justice to dismiss an enhancement"]; People v. Ponder (2023) 96 Cal.App.5th 1042, 1052 (Ponder) [following Ortiz].) The California Supreme Court has granted review to resolve that conflict, and resolution of the issues in this case does not require us to weigh in.
III. Analysis
A. Forfeiture
Defendant argues that the trial court's failure to make an express finding that dismissal of the firearm enhancement would endanger public safety demonstrates the court failed to engage in the requisite analysis under section 1385 and entitles him to either dismissal of both firearm enhancements or remand for resentencing. Alternatively, he claims the court abused its discretion when it declined to dismiss one of the firearm enhancements. He argues that the trial court failed to "'consider and afford great weight'" to the fact there were multiple enhancements in a single case under section 1385, subdivision (c)(2)(B), the aggravating factors do not overcome the great weight afforded the fact of multiple enhancements, and the totality of the circumstances does not support the trial court's decision. However, although defendant's sentencing brief requested relief under section 1385, subdivision (c)(2)(C), and stated that the circumstances in mitigation outweighed the circumstances in aggravation, defense counsel did not object to the court's sentencing decision or otherwise bring to the court's attention the issues he now advances on appeal: that the court failed to make a finding that dismissal would endanger public safety and, on the facts of this case, the denial of relief under section 1385 constituted an abuse of the court's sentencing discretion.
"'A party in a criminal case may not, on appeal, raise "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" if the party did not object to the sentence at trial. [Citation.] The rule applies to "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons ...."'" (People v. Scott (2015) 61 Cal.4th 363, 406.) "Strong policy reasons support this rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.] '"'"The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal."'"'" (People v. Stowell (2003) 31 Cal.4th 1107, 1114; accord, People v. Salazar (2016) 63 Cal.4th 214, 239-240; People v. French (2008) 43 Cal.4th 36, 46.)
"'[D]iscretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.'" (In re Sheena K. (2007) 40 Cal.4th 875, 887-888, fn. 7.) Absent a change in the law that applies retroactively (e.g., People v. Stamps (2020) 9 Cal.5th 685, 698-699), or an extenuating circumstance (e.g., People v. Perez (2020) 9 Cal.5th 1, 7-8), neither of which is applicable here, the policy reasons underlying the forfeiture doctrine fully support its application where a defendant remains silent in the trial court when sentenced and then seeks to obtain appellate relief based on asserted sentencing errors under a change in the law that had long been in effect.
Defendant does not dispute the foregoing legal principles, but argues that his request for relief under section 1385 was sufficient to preserve his claims for review or, alternatively, he did not have a meaningful opportunity to object. We disagree.
At the time of defendant's resentencing hearing, Senate Bill 81 had been in effect for more than one year, as we have stated. Defense counsel filed a sentencing memorandum that included a request for relief under section 1385 and the argument that section 1385, subdivision (c)(2), "'erects a presumption in favor of the dismissal of the enhancement' unless and until the court finds the dismissal would endanger public safety." The parties and the trial court referred to the multiple changes in sentencing laws during the sentencing hearing, and they had the benefit of the decision in Walker, addressed, ante.
The sentencing memorandum erroneously cited People v. Walker (May 17, 2022, B302037) (nonpub. opn.) for this principle, rather than Walker, supra, 86 Cal.App.5th at pages 398-399, review granted.
Nevertheless, defendant did not object that the court failed to make an express finding that relief would endanger public safety or otherwise call the court's attention to what he now characterizes as errors entitling him to relief from the court's ruling. Had defendant objected or otherwise alerted the court to the errors he now complains of, the errors could have been corrected or the record otherwise developed as to the issues. "[A] party cannot argue on appeal that the trial court erred in failing to conduct an analysis it was not asked to conduct" (People v. Fruits (2016) 247 Cal.App.4th 188, 208, fn. omitted), and strong policy reasons support application of the rule in the situation presented in this case (People v. Stowell, supra, 31 Cal.4th at p. 1114).
Nor are we persuaded that defendant did not have a meaningful opportunity to object. Defendant relies on Dorsey, in which the appellate court concluded that the forfeiture rule did not bar the People's claim the trial court erred when it granted the defendant probation because "the prosecutor had no opportunity, meaningful or otherwise, to object." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1224.) However, "[i]t is only if the trial court fails to give the parties any meaningful opportunity to object that the [forfeiture] rule becomes inapplicable." (People v. Gonzalez (2003) 31 Cal.4th 745, 752.) The sentencing record in this case does not support the claim that defendant did not have the opportunity to object or otherwise bring the errors he now complains of to the trial court's attention. Accordingly, we conclude that defendant forfeited review of his claims of sentencing error.
B. IAC
Defendant argues that if his claims are forfeited, then defense counsel was ineffective. We again disagree.
To prevail on a constitutional claim of IAC, a defendant "'must satisfy a twopronged showing: that counsel's performance was deficient, and that [he] was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.'" (People v. Woodruff (2018) 5 Cal.5th 697, 736 (Woodruff), quoting People v. Alexander (2010) 49 Cal.4th 846, 888; accord, Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "'[T]he standard for judging counsel's representation is a most deferential one.' (Harrington v. Richter (2011) 562 U.S. 86, 105 (Richter).) We 'must indulge a "strong presumption" that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.' (Bell v. Cone (2002) 535 U.S. 685, 702.) 'Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.' (Richter, at p. 105.)" (In re Long (2020) 10 Cal.5th 764, 773 (Long).)
Therefore, a "defendant's burden [is] 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on [IAC] on direct appeal only if there is affirmative evidence that counsel had '"'no rational tactical purpose'"' for an action or omission." (People v. Mickel (2016) 2 Cal.5th 181, 198, quoting People v. Lucas (1995) 12 Cal.4th 415, 437.) "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Strickland, supra, 466 U.S. at p. 690; accord, People v. Barrett (2012) 54 Cal.4th 1081, 1105 (Barrett).) At issue here, "'[d]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.'" (People v. Carrasco (2014) 59 Cal.4th 924, 985, quoting People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
"Counsel is not ineffective for failing to make frivolous or futile motions" (People v. Thompson (2010) 49 Cal.4th 79, 122; accord, People v. Bell (2019) 7 Cal.5th 70, 126-127, and counsel may, in the exercise of his or her professional judgment, determine that an objection would not result in a more favorable determination for his or her client (Strickland, supra, 466 U.S. at p. 690; accord, Barrett, supra, 54 Cal.4th at p. 1105). Defendant does not argue that the trial court was required to dismiss one of the firearm enhancements, and defense counsel could have determined, very reasonably, that having made the best argument he could in favor of leniency, objecting to the court's exercise of its discretion not to grant relief under section 1385 on the grounds now advanced on appeal would not have benefitted defendant.
Again, counsel is presumed competent and familiar with the relevant law, and counsel was familiar with facts of this case and his client's history. (Strickland, supra, 466 U.S. at p. 690; Long, supra, 10 Cal.5th at p. 773; Barrett, supra, 54 Cal.4th at p. 1105.) As this court stated in Perry II, "[n]either a defendant's nor a reviewing court's mere disagreement with the ruling will suffice as grounds to set it aside. [Citation.] The facts of this case are unusual and tragic in that defendant did not have a prior criminal record and was a contributing member of society, there was no indication he was an aggressive person, and he drove to California City planning only to help his cousin and her three young children leave what he believed to be, and what may have been, an abusive situation. However, defendant fired multiple rounds from a high-powered rifle at a house, killing two people, one of them a child, and in declining to strike the firearm enhancements, the trial court acted well within the bounds of its broad sentencing discretion." (Perry II, supra, F079881 [2022 Cal.App. Unpub. Lexis 3438, *29, citing People v. Carmony (2004) 33 Cal.4th 367, 376, 377].)
On remand, the trial court expressed that it had been considering the appropriate sentence since the remittitur was issued in Perry II, including striking or imposing a lesser enhancement. As defendant points out, his lack of a criminal record and the fact he had been a productive member of society were mitigating factors. They were not dispositive of the matter, however. The discretion to determine whether dismissing an enhancement would endanger public safety and whether it was in the interest of justice to dismiss an enhancement was vested in the trial court, and the facts of this case do not compel a finding in defendant's favor on either question. Although the jury found the shootings were not premeditated, it also rejected the theory that the killings were justified because defendant acted in self-defense or defense of another or that defendant acted under an unreasonable but good faith belief in the need to use deadly force to defend himself or another. Given the evidence and the jury's determinations in this case, which the trial court expressly cited at both sentencing hearings, the court could well have concluded that notwithstanding defendant's previously law-abiding conduct and his intent to aid his cousin and her children, his actions in retrieving a high-powered weapon from his truck, firing multiple rounds at a dwelling he knew adults and children were inside, and then fleeing were so violent and egregious that dismissal of the enhancements would endanger public safety.
Under these circumstances and given defense counsel's familiarity with the facts of the case, the parties, and the judge, counsel may have reasonably determined that objecting would not have been fruitful. Accordingly, we find defendant has not met his burden of demonstrating that defense counsel's failure to object to the sentencing decision constituted IAC.
Moreover, these same reasons preclude defendant from meeting his burden of demonstrating a reasonable probability of a more favorable outcome had counsel either objected or argued further on the points now advanced on appeal. (Woodruff, supra, 5 Cal.5th at p. 739; see Harrington v. Richter (2011) 562 U.S. 86, 112 ["The likelihood of a different result must be substantial, not just conceivable."].) Therefore, defendant's IAC claim is foreclosed.
Defendant cites Ponder in support of his argument that counsel's failure to object was prejudicial. In Ponder, at the defendant's original sentencing hearing, "[t]he trial court made extensive findings regarding [the] defendant's neurodevelopmental disorders, immaturity, and history of trauma and relied on these findings to strike the enhancement for the assault offense, but declined to strike the 25-year-to-life enhancement under section 12022.53, subdivision (d) (§ 12022.53(d)), associated with the murder conviction." (Ponder, supra, 96 Cal.App.5th at p. 1044.) In the defendant's first appeal, the Court of Appeal "concluded the trial court abused its discretion in denying the motion to strike the firearm enhancement under section 12022.53(d) for the murder conviction given its findings of considerable defendant-related mitigating circumstances and remanded the matter for resentencing." (Ibid.) On remand, the trial court imposed a lesser 10-year sentence for the firearm enhancement in lieu of the 25 years to life, the defendant appealed again; and the appellate court affirmed. (Id. at pp. 1044, 1053.) First, the underlying decision holding that the trial court abused its sentencing discretion, People v. Ponder (Dec. 22, 2021, A159260) (nonpub. opn.), is not published and may not be relied on by defendant (Cal. Rules of Court, rule 8.1115(a)-(b)). Second, as the appellate court subsequently explained in Ponder, in the defendant's first appeal, it had concluded that "'given the trial court's own express findings regarding the constellation of issues and circumstances affecting [the] defendant (including his immaturity, neurodevelopmental deficits, and traumatic upbringing) and its determination that the interest of justice would be served by striking the firearm enhancement in connection with count 2, ... this [wa]s the rare case where the court's ruling falls outside the bounds of reason.'" (Ponder, supra, 96 Cal.App.5th at p. 1046.) This case, in contrast, does not involve similar extensive factfinding of mitigating factors or inconsistent rulings under section 1385.
C. No Error
Finally, even if we were to reach the merits of defendant's claims, we would find no error. With respect to defendant's claim that the court failed to make an express finding that dismissal of the firearm enhancement would endanger public safety, "'[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Salazar (2023) 15 Cal.5th 416, 424; People v. Flores (2020) 9 Cal.5th 371, 431-432.) However, as defendant acknowledges, "[a]bsent evidence to the contrary, we presume that the trial court knew the law and followed it." (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) Thus, "we presume that a judgment or order of the trial court is correct, '"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Giordano (2007) 42 Cal.4th 644, 666.)
No error appears in the record. To the contrary, the record expressly reflects the trial court and the parties were aware of the change to the law. As such, we do not presume the court was unaware of the scope of its sentencing discretion under section 1385 as amended or that it failed to conduct the requisite analysis under the statute as amended.
With respect to defendant's alternative claim asserting that the trial court's decision to deny relief from an enhancement under section 1385 constituted an abuse of its sentencing discretion, we do not agree that the facts here compelled the court to dismiss one or both enhancements. First, there is some overlap in the mitigating factors identified in the sentencing brief, and some of the factors, such as those relating to Wiggins, were undermined by the jury's verdicts and were not found to be mitigating by the trial court. Second, the trial court had the discretion to balance the various factors and determine their weight; the analysis is not a mere counting exercise. Third, as discussed, the absence of a criminal record and defendant's belief that his cousin was in need of help to some extent did not compel the trial court to conclude that dismissal would not endanger public safety.
We review the court's ruling rather than its reasoning (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11; accord, People v. Camacho (2022) 14 Cal.5th 77, 123-124; People v. Brooks (2017) 3 Cal.5th 1, 39), and the jury rejected the theories of self-defense and imperfect self-defense. Thus, in assessing danger to public safety, the court could have reasonably concluded that defendant's actions in intentionally firing multiple rounds from a high-powered weapon at an occupied dwelling was such a staggeringly disproportionate response to the situation he confronted that there was little comfort to be had in the absence of a prior criminal record or prior violent conduct. Put another way, where defendant proved himself capable of committing a shocking, extremely violent act that resulted in the death of two people and then fleeing, describing the act as out of character for him was not necessarily reassuring in evaluating whether striking an enhancement would endanger public safety. Therefore, we conclude the trial court acted well within the bounds of its sentencing discretion in declining to strike the firearm enhancements under section 1385.
DISPOSITION
The judgment is affirmed.
[*]Before Levy, Acting P. J., Meehan, J. and DeSantos, J.