Filed 1/27/20 P. v. Jackson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JSHAUN TYRELL JACKSON,

Defendant and Appellant.

G055999, G056468

(Super. Ct. No. 15NF0265)

O P I N I O N

Appeal from a judgment and order of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed.

Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Jshaun Tyrell Jackson pleaded guilty to one count of second degree robbery (Pen. Code, §§ 211; 212.5, subd. (c)) and one count of street terrorism (§ 186.22, subd. (a)). He also admitted the second degree robbery count was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that he was a principal in a gang-related offense in which another principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)).

The court sentenced defendant to 12 years in state prison, which consisted of the low term of two years for the second degree robbery count and 10 years for the firearm enhancement. The court stayed sentences on both the street terrorism count and the gang enhancement under section 654.

On appeal, defendant contends the court was not fully aware of the scope of its discretion to strike or dismiss the firearm enhancement in whole or in part. Assuming the court was fully aware of its discretion, defendant alternatively argues the court abused its discretion by refusing to strike or dismiss the firearm enhancement, or, alternatively, to substitute a different firearm enhancement carrying a shorter term of imprisonment. Finally, he argues the court abused its discretion by denying his request to recall his sentence. We disagree with defendant’s contentions and affirm the judgment and order.

FACTS

The Incident

In 2015, codefendants Tyler Daniel Mason and Quinten Joseph Carr entered a Verizon store. Mason pointed a handgun at an employee and told her to put her hands up. She complied and was directed to the back room where Mason and Carr stole cell phones from an open safe.

Outside, a customer observed a car parked beside the Verizon store. The customer waited behind the car for it to move and honked her horn, but the driver “flipped her off.” The customer then drove around the car and parked in front of the store. As she entered the store, Mason and Carr exited and got into the car that had caused her parking problem. At the employee’s request, the customer then called the police. The customer described the car as a Nissan Altima with paper plates.

A deputy sheriff located the car and attempted to initiate a traffic stop. The driver initially continued to drive, while merchandise and other items were thrown out of the car. When the car eventually stopped, Mason and Carr fled on foot. The driver turned out to be defendant. He remained in the car and was arrested. Deputies collected cell phones and a loaded handgun that had been discarded during the pursuit. They also found a set of license plates inside the car and later arrested Mason and Carr.

At the sheriff’s station, defendant admitted he drove Mason and Carr to the Verizon store to “‘get some phones’” in a car belonging to his girlfriend. He said Mason and Carr had offered gas money to him in return. He also said he remained in the car while Mason and Carr were inside the store and did not know they had a handgun. According to defendant, Mason and Carr threw items out of the car before he pulled over. Defendant admitted, “I fucked up, man.”

Defendant, Mason, and Carr were charged with second degree robbery and street terrorism. Carr was also charged with criminal threats. As to the robbery, it was alleged the three defendants committed the offense for the benefit of a street gang (§ 186.22, subd. (b)(1)), that Mason personally used a firearm (§ 12022.53, subd. (b)), and that defendant and Carr were principals in a gang-related offense in which another principal personally used a firearm (§ 12022.53, subd. (e)(1)).

Defendant’s Guilty Plea and Sentencing Brief

After defendant’s case was severed from his codefendants, defendant pleaded guilty to both second degree robbery and street terrorism. He also admitted the firearm and gang enhancements.

Defendant later filed a sentencing brief and statement in mitigation, which requested the court strike both enhancements and impose the low term of two years on the second degree robbery count. He argued the court should consider that he was induced by his friend, Carr, to participate in the crime and did not understand the gravity of his participation as the driver. He noted he did not flee like his codefendants when he brought the car to a stop, voluntarily admitted guilt immediately after his arrest, and cooperated with the police and told them he was unaware Mason was armed. He further argued he played a minor role in the offense by remaining in the car and noted he “never actually took any of the property,” “was not personally armed,” and “was not even acting as a look-out.”

Defendant also pointed to circumstances in mitigation that were not limited to the offense. For example, he noted he was only 22 years old at the time of the incident and had “no prior criminal record as a juvenile.” Prior to the incident, he had only been arrested once in 2011 for being in possession of his aunt’s pain medication, which he took because he was in pain from chemotherapy for his testicular and kidney cancer. He successfully completed diversion, and the charge was dismissed.

Defendant also submitted letters of support from various adults who knew him. Defendant’s pastor and his aunt, a public school teacher, believed the offense was a one-time mistake defendant would not repeat. The youth director of defendant’s church described defendant as an “extraordinary young man” who “has always been very respectful, kind and a leader to his peers.” A family friend described defendant as “one of the finest, respectful, and mannerable young men” she knew and she “never knew him to get into any kind of trouble.” A former employer said defendant “was an excellent employee” with a great attitude and that he “would be eager to hire him back . . . .” Defendant’s brother described him as a “role model.”

Finally, defendant submitted a letter accepting responsibility for his actions and acknowledging that the incident “put [him] on the right path to be [a] better man . . . .” He recognized the pain he caused his family, expressed his resolve not to repeat his mistake, and asked for “one more chance to help complete [his] change into becoming a better person.”

Given all of these circumstances in mitigation, defendant’s counsel argued he “is the deserving defendant that is at the heart and spirit of Senate Bill 620” and requested the court strike the firearm and gang enhancements.

Sentencing

At the sentencing hearing, the court denied defendant’s request to strike the enhancements and imposed a prison term of 12 years, consisting of the low term of two years for the robbery and 10 years for the firearm enhancement under section 12022.53, subdivisions (b) and (e)(1).

In denying defendant’s request to strike the firearm enhancement, the court explained: “I’ve struggled with this decision primarily because you have tremendous support from your family. They’ve been here on multiple court appearances. They wrote the probation department letters. They provided me letters today. [¶] And I do feel though your mind set today is very different than it was when you committed the crime. I do believe you understand the ramifications of the crime you committed. [¶] And I put the matter over from Friday until today and, again, even a little more this morning so I can make sure I’ve given all of those things consideration. [¶] The law does give me the discretion to strike the gun use. That’s new. That’s not something that the court has had the discretion to do before.”

The court continued: “And as I look at that, and I look at what was the Legislature intending when it says you may do so in the interest of justice. I was looking to determine whether or not there was a reason that demand[s] that justice would compel me to make that decision, and I’m trying—and in doing that analysis, I realize the punishment is really great for that gun use, but I should [not] be making that decision merely because I think it’s too lengthy a period of time with additional incarceration. So I’ve struggled with the decision.”

The court concluded: “I gave it a lot of consideration. I don’t believe the facts or the interest of . . . justice require that.” “You have family who loves you. You have a wife who loves you. Their support, I believe, will be with you, but when I look at all of the sentencing factors, I don’t believe the interest of justice—well, the interest of justice does not compel me to strike the gun use.”

As circumstances in aggravation, the court noted defendant’s mindset had changed since the incident but he was not a passive participant in the crime. The court found the crime involved the threat of great bodily harm because a codefendant was armed with a firearm. The court further found the manner in which the crime was carried out indicated planning and sophistication. Given that there were paper plates on the car and officers found the license plates inside the car, the court believed “there was an effort to remove the license plates.” The court also noted defendant parked the car in a way that was “readily accessible” to his codefendants, “stayed there despite there being another person trying to honk forcing [him] to move,” and initially did not pull over for the police.

As circumstances in mitigation, the court found defendant had “an insignificant, almost non-existent, criminal record” that made the decision “difficult.” The court further noted defendant admitted guilt following his arrest and “successfully completed diversion on [his] prior drug offense.”

Defendant filed a request to recall his sentence and pointed out that Carr was sentenced to 9 years 8 months while Mason who displayed the firearm was sentenced to 12 years. Defendant argued the court should recall his sentence in the interest of promoting uniformity of sentencing and avoiding harsher punishment for a defendant with a lesser role in the offense.

The court issued a minute order denying defendant’s request for recall of his sentence. The court found section 1170, subdivision (d) “‘does not confer standing on a defendant to initiate a motion to recall a sentence.’” The court also held there were “no compelling circumstances warranting a recall of defendant’s sentence on the [c]ourt’s own motion.” Defendant appeals from the judgment and order denying the request for recall of his sentence.

DISCUSSION

Defendant contends the case should be remanded for resentencing because the court did not understand the full scope of its discretion to strike or dismiss the firearm enhancement for two reasons. First, defendant claims the court’s discretion to “strike or dismiss” the firearm enhancement under section 1385 allowed the court to strike or dismiss the enhancement allegation in part and thereby reduce it to a lesser enhancement. Second, relying on the court’s statements at the sentencing hearing, defendant contends the court “was under the erroneous impression it could not take into account the harsh effect” of the 10-year enhancement and failed to understand that the interest of justice did not need to “compel” the court to strike or dismiss the enhancement. Assuming the court was aware of the full scope of its discretion, he argues the court abused its discretion by refusing to strike or dismiss the firearm enhancement and by declining to recall the sentence. We disagree for the reasons below.

The Court Was Aware of the Full Scope of Its Discretion

A. Senate Bill No. 620

Signed into law in 2017, Senate Bill No. 620 (2017-2018 Reg. Sess.) amended section 12022.53 to give the trial court authority to strike or dismiss firearm enhancements, including the one imposed in this case, in the interest of justice. Effective January 1, 2018, subdivision (h) of the amended statute 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.” (§ 12022.53, subd. (h).)

Defendant contends the “strike or dismiss” language in sections 1385 and 12022.53, subdivision (h) did not limit the court’s discretion “to strike the firearm use enhancement as an all or nothing proposition.” Instead, he argues the court had discretion to impose an “intermediate alternative” by striking the firearm enhancement under section 12022.53, subdivision (e)(1) in part and thereby reducing it to a lesser enhancement. According to defendant, “section 1385 permitted the . . . court to strike or dismiss the language characterizing [his] offense as gang-related and thereby reduce the enhancement [under section 12022.53, subdivision (e)(1)] to participation in an offense in which a principal was armed with a firearm under subdivision (a) of section 12022.” Because the court did not consider imposing this lesser included enhancement, he contends the court was not aware of the full scope of its discretion and requests that we remand the matter.

Most of the cases defendant cites in support of his argument are distinguishable. The courts in those cases reduced certain firearm enhancements because they were either inapplicable or were based on insufficient evidence. (See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195-1197, overruled on a different point in People v. Rangel (2016) 62 Cal.4th 1192, 1216 [reducing firearm enhancement under § 12022.5 to an enhancement under § 12022, subd. (b) for use of a dangerous or deadly weapon where pellet gun did not qualify as a firearm]; People v. Dixon (2007) 153 Cal.App.4th 985, 1001-1002 [court properly substituted deadly weapon enhancement under § 12022, subd. (b) as a lesser included enhancement to § 12022.53 subd. (b) where the weapon used did not qualify as a firearm]; People v. Fialho (2014) 229 Cal.App.4th 1389, 1395-1396 [court properly substituted uncharged lesser included enhancement for personal use of a firearm under § 12022.5, subd. (a) where charged enhancement under § 12022.53 which was found true by the jury, did not apply to conviction for voluntary manslaughter]; People v. Allen (1985) 165 Cal.App.3d 616, 626-627 [reducing firearm enhancement under § 12022.5 to enhancement under § 12022, subdivision (a) where evidence did not establish which of the two defendants used the firearm].) Given defendant’s guilty plea in the instant case, his firearm enhancement could not possibly be either inapplicable or based on insufficient evidence.

Defendant also relies on People v. Marsh (1984) 36 Cal.3d 134. In Marsh, our Supreme Court held “‘[t]he authority to dismiss the whole includes, of course, the power to dismiss or “strike out” a part.’” (Id. at p. 143.) But Marsh did not consider or approve of reducing a sentencing enhancement to a lesser included enhancement. Instead, Marsh found the trial court had discretion under section 1385 to dismiss factual allegations of ransom and bodily harm during kidnapping, which were “similar in effect to prior conviction and weapons use findings in that they require an enhanced sentence.” (Ibid.)

In his reply brief, defendant further points to People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), which was decided after defendant filed his opening brief. In Morrison, the jury convicted the defendant of first degree murder with an enhancement for personally and intentionally discharging a firearm causing death under section 12022.53, subdivision (d). (Morrison, at p. 220.) The defendant argued the trial court misunderstood the scope of its discretion under section 1385, which included the discretion to impose a lesser firearm enhancement. (Morrison, at p. 221.) Division Five of the First District Court of Appeal agreed and held that trial courts have “discretion to impose an enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d), if such an outcome [is] found to be in the interests of justice under section 1385.” (Id. at p. 223.) In reaching this conclusion, Morrison relied on cases where courts “impose[d] a ‘lesser included’ enhancement that was not charged in the information when a greater enhancement found true by the trier of fact is either legally inapplicable or unsupported by sufficient evidence.” (Id. at p. 222.) The court explained it saw “no reason a court could not also impose one of these enhancements after striking an enhancement under section 12022.53, subdivision (d), under section 1385.” (Id. at pp. 222-223.) According to the court, this conclusion was “further buttressed by” People v. Marsh, supra, 36 Cal.3d at pages 143-144. (Morrison, at p. 223.)

More recently, the Fifth District considered the same issue as Morrison but came to the opposite conclusion in People v. Tirado (2019) 38 Cal.App.5th 637, review granted November 13, 2019, S257658. In Tirado, the jury found the defendant was guilty of robbery and that he personally and intentionally discharged a firearm under section 12022.53, subdivision (d). (Tirado, at p. 639.) The defendant argued the trial court was unaware of its discretion to substitute a different enhancement. (Ibid.) Disagreeing with Morrison, the Fifth District found “[n]othing in the plain language of sections 1385 and 12022.53, subdivision (h) authorizes a trial court to substitute one enhancement for another.” (Tirado, at p. 643.) The court focused on statutory construction and legislative intent: “Section 12022.53, subdivision (h) uses the verbs ‘strike’ and ‘dismiss,’ and section 1385, subdivision (a) states the court may ‘order an action to be dismissed.’ This language indicates the court’s power pursuant to these sections is binary: The court can choose to dismiss a charge or enhancement in the interest of justice, or it can choose to take no action. There is nothing in either statute that conveys the power to change, modify, or substitute a charge or enhancement.” (Ibid.) “Had the Legislature intended the trial court’s power to be broader than what is proscribed by section 1385, it would have said so.” (Ibid.) The court also emphasized that the language in section 1385 differs from other statutes that expressly allow a court to modify a charge or enhancement. (Ibid. [citing sections 1260 and 1181, subdivision (6)].)

After considering Morrison and Tirado, and pending further guidance from our Supreme Court, we subscribe to the view expressed in Tirado and decline to follow Morrison. We accordingly find the court properly understood the scope of its discretion in imposing the firearm enhancement under 12022.53, subdivision (e)(1). In light of our conclusion, we need not decide whether defendant forfeited his contentions by failing to raise them below.

B. The Court’s Statements at the Sentencing Hearing

Defendant next contends the court did not understand the full scope of its discretion because of certain statements it made at the sentencing hearing. According to defendant, the court improperly assumed it could not consider the harsh effect of the 10-year enhancement. Defendant also claims the court “proceeded on the assumption it had discretion to strike the enhancement only if it determined the interest of justice ‘compelled,’ rather than merely permitted, it to do so.” When viewed in their context, the court’s comments do not suggest the court proceeded on these erroneous assumptions.

In deciding whether to strike or dismiss the firearm enhancement, the court explained, “I should [not] be making that decision merely because I think it’s too lengthy a period of time with additional incarceration.” In other words, the court held it could not strike or dismiss the enhancement solely because it was lengthy and properly found it had to consider additional factors, which it proceeded to do. The court also stated it looked “to determine whether or not there was a reason that demand[s] that justice would compel” striking or dismissing the enhancement. Although the court used the word “compel,” it considered the circumstances in aggravation and mitigation and ultimately determined the interest of justice did not require striking or dismissing the enhancement. We find no error based on this record.

The Court Did Not Abuse Its Discretion by Refusing to Strike or Dismiss the Firearm Enhancement

Assuming the court understood the full scope of its discretion, defendant contends the court abused its discretion by failing to strike or dismiss the firearm enhancement. The court’s refusal to strike or dismiss the enhancement is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373.) Under that standard, defendant must show the court’s decision was “irrational or arbitrary.” (Id. at p. 376.) 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.’”’” (Id. at p. 377.)

Here, the court acknowledged it “struggled with [the] decision” to strike or dismiss the firearm enhancement. On the one hand, defendant submitted letters of support from various individuals, had an “insignificant” criminal record, understood the ramifications of the crime, and admitted guilt following his arrest. On the other hand, the crime involved the threat of great bodily harm, “there was an effort to remove the [car’s] license plates,” which suggested planning and sophistication, and defendant parked the car in a manner that was “readily accessible” to his codefendants. Defendant also initially did not pull over for the police. Taking all of these factors into consideration, the court determined the interests of justice did not warrant striking or dismissing the firearm enhancement. Based on this record, defendant has not shown the court’s decision was arbitrary or irrational. Instead, he presents information from which a different conclusion reasonably could be drawn. That reasonable people might disagree or reach a different conclusion does not mean the court abused its discretion. Given our standard of review, we cannot conclude that no reasonable judge would have refused to strike or dismiss the enhancement.

The Court Did Not Abuse Its Discretion by Denying Defendant’s Request to Recall His Sentence

Defendant further claims the court abused its discretion by declining to recall his sentence. Section 1170, subdivision (d)(1) provides that a court “may, within 120 days of the date of commitment on its own motion . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” In resentencing, the court “shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (Ibid.) We review the court’s decision not to recall the sentence for an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 375.)

Here, defendant’s request to recall his sentence informed the court that his two codefendants pleaded guilty and were sentenced at separate proceedings. He noted that one of the codefendants received a shorter sentence while the other codefendant with the firearm received the same sentence as defendant. Given defendant’s “lesser role in the offense,” he argues his sentence was “not in conformity with the express purposes of section 1170, subdivision (d)(1), to eliminate disparity of sentences and to promote uniformity of sentencing.”

But a disparity in sentencing imposed on a defendant and his codefendants does not establish a defendant’s sentence is disproportionate to the offense. (People v. Riel (2000) 22 Cal.4th 1153, 1223.) “Evidence of the disposition of a codefendant’s case, as opposed to evidence of the codefendant’s complicity and involvement in the offense, is not relevant to the decision at the penalty phase, which is based on the character and record of the individual defendant and the circumstances of the offense.” (People v. Mincey (1992) 2 Cal.4th 408, 476.) For the same reasons and circumstances described above, defendant’s sentence cannot be said to be disproportionate to his own culpability. The court’s decision not to recall accordingly was not an abuse of discretion.

DISPOSITION

The judgment and order are affirmed.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.