Opinion
B300176
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. MANUEL ZATARAIN, JR., Defendant and Appellant.
Tracy J. Dressner, 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, Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SA090495) APPEAL from a judgment of the Superior Court of Los Angeles County. Kathryn Solorzano, Judge. Affirmed. Tracy J. Dressner, 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, Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
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Manuel Zatarain, Jr., appeals from the trial court's refusal to dismiss a firearm enhancement pursuant to Penal Code section 12022.53, subdivision (h) at his resentencing. Zatarain contends the trial court abused its discretion in making its decision because it relied on improper and unsupported circumstances rather than the mitigating factors he presented. Alternatively, Zatarain requests a second remand because, he claims, the trial court was not aware it had the discretion to impose a lesser enhancement under section 12022.53, subdivision (b) or (c), in lieu of imposing or striking the 25-year-to-life enhancement under section 12022.53, subdivision (d). We affirm the judgment.
All further section references are to the Penal Code.
PROCEDURAL HISTORY
Zatarain shot Jose C. seven times on January 1, 2011, at approximately 11:17 a.m., while he was leaving a New Year's Eve gathering with his brother Michael. Zatarain then walked to a waiting truck and drove away. Jose C. died. Zatarain shot Jose simply because he was a member of a rival gang who happened to be in an area claimed by Zatarain's gang. Zatarain had previously acknowledged he was a member of the Inglewood 13 gang and held the moniker "Trigger." The defense maintained Zatarain was at a party with a friend all night on New Year's Eve, and the friend believed he was asleep at her home most of the morning on January 1, 2011.
The jury found Zatarain guilty of first degree murder. (§ 187, subd. (a).) It also found true allegations that he personally discharged a firearm causing death (§ 12022.53, subd. (d)), and that he committed murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
The trial court sentenced Zatarain to a total term of 50 years to life, comprised of 25 years to life for first degree murder, plus an additional and consecutive 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d). The trial court imposed and stayed a 10-year term for the gang enhancement pursuant to section 186.22, subdivision (b)(1)(C).
After Zatarain's initial appeal, we struck the 10-year gang enhancement and remanded the matter to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancement under section 12022.53. We otherwise affirmed the judgment. (People v. Zatarain (May 8, 2018, B280905) [nonpub. opn.].)
At the resentencing hearing, the trial court declined to strike the firearm enhancement, relying on the circumstances of the crime. Defense counsel urged the trial court to consider the mitigating factors rather than focus on the circumstances of the crime. Defense counsel argued Zatarain, who was 48 years old at the time of resentencing, still faced a term of 25 years to life for the murder conviction. He pointed out that even without the gun enhancement, Zatarain would be 70 years old by the time he was eligible for parole and much less likely to reoffend. In addition, defense counsel claimed that Zatarain lacked an extensive criminal history. However, Zatarain had two prior felony convictions and multiple misdemeanors involving substance abuse. Defense counsel argued Zatarain's prior felonies did not involve violence or gangs. He presented evidence showing Zatarain's conduct in prison was good and he completed school certifications while incarcerated. He also presented letters from his family saying he was a good father, friend, and uncle.
The prosecutor opposed dismissing the firearm enhancement, arguing Zatarain belonged to "a very well-known family with a very long history of gang activity." Further, that "[t]his [wasn't] an isolated event where all of a sudden he became on the rise. He's rising to the level of OG [original gangster]. [¶] So the fact that maybe he hasn't been, you know, arrested before on something more egregious than carrying a gun, I don't find that to be anything less given what did occur and he was finally caught. [¶] Again, [he is a member of a] very notorious family for the gang."
The trial court indicated it had read all the letters from Zatarain's family and friends. It further acknowledged the presence of certain mitigating factors, but reiterated the murder was gang related, unprovoked, and "very close to lying in wait, . . . where . . . Mr. Zatarain . . . was waiting for this guy to walk out there." The trial court also noted Zatarain had previously been arrested with a gun and ammunition, held the gang moniker "Trigger," and was 44 years old at the time of the crime, not a "hot-headed" or "misguided" young man.
The court reasoned, "I have to rely very heavily on the facts in the case because that's . . . what I've learned about in this case. And, again, you are back to not just your standard first murder, rather an elevated first degree murder. That's one. [¶] Lying in wait then, though, it's not an allegation in this case. That was never proven to the jury. They could have. That's all I'm going to say about that. [¶] Then there was nothing. There was no provocation. Just based on the standards of the violation of what's appropriate and respect. And he did it and it's an aggravated crime because also there was no provocation whatsoever. [¶] And, again . . . the evidence in this case is that he's a longstanding member of that gang, . . . he's known by Trigger. He was arrested with a gun and arrested with ammunition before. [¶] It's not that night spontaneously he took a gun in hand for the first time."
Zatarain timely appealed.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion When It Refused to Strike the Firearm Enhancement
On appeal, Zatarain argues the trial court abused its discretion in declining to strike the firearm enhancement under section 12022.53, subdivision (h), because it failed to consider the mitigating factors he presented at resentencing and relied on unproven allegations and gang bias in reaching its decision. We disagree.
Senate Bill No. 620 (2017-2018 Reg. Sess.), effective January 1, 2018, amended section 12022.53, subdivision (h), to give the trial court discretion to strike previously mandatory firearm enhancements. (§ 12022.53, subd. (h) ["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."].) " '[A] court's discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is' reviewable for abuse of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 373.)
" 'In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " [Citation.] Second, a " 'decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." ' " [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' [Citation.]" (People v. Pearson (2019) 38 Cal.App.5th 112, 116 (Pearson).)
Absent a contrary affirmative showing in the record, we presume the trial court considered the relevant sentencing factors listed in the California Rules of Court when it determined whether to strike or dismiss the firearm enhancement. (Pearson, supra, 38 Cal.App.5th at p. 117; see Cal. Rules of Court, rules 4.409, 4.428(b) [striking enhancements], 4.410 [general objectives in sentencing], 4.421 [factors in aggravation], 4.423 [factors in mitigation].)
Here, the record does not affirmatively show the trial court ignored the relevant sentencing factors to determine whether to strike or dismiss the firearm enhancement. To the contrary, the court indicated it read all the letters submitted by Zatarain's friends and family. Additionally, it praised his good behavior in prison, his efforts to better himself, and his demeanor in court. (People v. Warren (1986) 179 Cal.App.3d 676, 689 ["postconviction behavior . . . must be considered by a trial court in determining whether or not to exercise [§] 1385 discretion in favor of striking enhancements"], abrogated on other grounds by People v. Bullock (1994) 26 Cal.App.4th 985, 989.)
Nevertheless, the trial court determined the factors in mitigation were not enough to overcome the circumstances of the crime, which involved shooting Jose seven times with no provocation. As stated by the trial court, "this [was] just an unprovoked . . . execution of a person who dared to flaunt his presence in their territory, essentially, who dared to disregard the basic rules." These facts demonstrated to the trial court great violence and a high degree of cruelty, viciousness, or callousness; planning and sophistication; and violent conduct that indicates a serious danger to society. (Cal. Rules of Court, rule 4.421(a)(1)-(2), (8), (b)(1).) The trial court did not abuse its discretion by declining to strike the firearm enhancement.
California Rules of Court, rule 4.421 lists factors in aggravation, including: "[(a)](1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; [¶] . . . [¶] "[(a)](8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism; [¶] . . . [¶] "[(b)](1) The defendant has engaged in violent conduct that indicates a serious danger to society."
We are not persuaded the trial court "punished" Zatarain for his family's involvement in Inglewood 13, for earning the moniker "Trigger," or for his unsubstantiated status as an "OG" who was very respected in the gang community and committed other uncharged crimes before finally getting caught in this case. While these issues were raised by the prosecutor, the record does not disclose the trial court relied on them to make its decision. Instead, the trial court agreed with defense counsel that it was not proven Zatarain "had all this gang power." The court also noted, "I don't know how he earned that [moniker, Trigger]." The trial court clarified it relied on the evidence at trial that demonstrated Zatarain's gang membership: "The broad cultural things that were testified to, his affiliation -- not his affiliation, but that gang -- their gang hangouts and all of that, that's allowed under the law. But . . . we know he is Trigger, we know he's a member of that gang. [¶] Those are broadly -- remember, right now -- I don't want to get down into too much detail about how they view him as being a problem to community or not, but the evidence was definitely he was a well-recognized and known member of this gang."
Neither does the record disclose the trial court improperly penalized Zatarain for exercising his Fifth Amendment right not to testify to explain the cause of the shooting or to assure the court that he would not commit such a crime in the future. The court expressly acknowledged Zatarain did not have to testify but observed, "I don't have anything in front of me that indicates that Mr. Zatarain rejects any of the fundamental rules that apply to the gang culture." The court believed Zatarain would likely reoffend once he was out of custody since "[h]e did what he did because he thought he was right." These statements reflect the court's consideration of whether Zatarain continues to be a serious danger to society, a factor in aggravation to be considered under California Rules of Court, rule 4.421(b)(1). The court did not imply Zatarain was required to testify.
Zatarain has failed to meet his burden to clearly show the decision to impose the firearm enhancement was irrational or arbitrary. (Pearson, supra, 38 Cal.App.5th at p. 116.) II. The Trial Court Is Presumed to Have Applied the Controlling Law Under Morrison at Resentencing
Alternatively, Zatarain urges us to remand the matter to allow the trial court to consider whether it would impose the lesser 10- or 20-year enhancements under section 12022.53, subdivision (b) or (c). Zatarain asserts the trial court improperly believed it had only the all-or-nothing choice of imposing or striking the 25-year-to-life enhancement under section 12022.53, subdivision (d). Courts are split on the issue of whether the trial court may impose unpled lesser enhancements. (Compare People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) [court may] with People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado) [court may not], review granted Nov. 13, 2019, S257658.) We need not resolve that issue here.
As Zatarain acknowledges, the trial court's July 22, 2019 resentencing decision came more than three months after Morrison was published on April 11, 2019, but before Tirado was published on August 12, 2019. We presume the court followed Morrison as the only controlling law at the time. (Morrison, supra, 34 Cal.App.5th at pp. 224, 225 [noting "no published case had held an uncharged lesser firearm enhancement could be imposed in lieu of an enhancement under [§] 12022.53, subdivision (d)" but that "after the publication of our decision today, the usual presumption that a sentencing court correctly applied the law will apply and will ordinarily prevent remand where the record is silent as to the scope of a court's discretion"]; see also People v. Bradford (2010) 187 Cal.App.4th 1345, 1355.)
In any event, remand is not required here because the record reveals a clear indication that the trial court would not have reduced the sentence. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; see also People v. Chavez (2018) 22 Cal.App.5th 663, 713.) At resentencing, the trial court described as "harsh" and "draconian" the circumstances of shooting the victim seven times "because he was in the wrong place at the wrong time and his presence was not going to be tolerated based on the rules of [gang] subculture." Throughout the hearing, the court emphasized the lack of provocation and the planning involved in waiting for the victim to leave the party to kill him. Likewise, defense counsel acknowledged, "I have not addressed the facts of the case for a reason, because the facts of the case as presented are very bad." We agree and find there is no reasonable possibility the trial court would have reduced the sentence.
For the same reason, we reject Zatarain's argument that defense counsel provided ineffective assistance by failing to specifically request the trial court impose the lesser enhancements under section 12022.53, subdivisions (b) and (c). A defendant must show a reasonable probability that "but for counsel's deficient performance, the result of the trial would have been different." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) If a defendant fails to show that his or her attorney's challenged performance was prejudicial, the reviewing court may reject the defendant's claim of ineffective assistance of counsel without deciding whether the attorney's performance was deficient. (People v. Kipp (1998) 18 Cal.4th 349, 366.) As discussed above, Zatarain has failed to show he was prejudiced by his counsel's failure to request a lesser enhancement be imposed.
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J. We Concur:
GRIMES, J.
WILEY, J.