Filed 12/17/19 P. v. Acosta CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EDGARDO ACOSTA,

Defendant and Appellant.

F078519

(Super. Ct. No. BF156178A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge.

Kendall D. Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

During a brawl involving members of two neighboring families, appellant Edgardo Acosta shot a combatant in the shoulder with a small handgun, and the bullet struck appellant’s own 13-year-old daughter in her forehead. Both victims recovered from their wounds. At trial, appellant contended that he fired the gun in defense of another. A jury found him not guilty of attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1), but guilty of the lesser included charge of attempted voluntary manslaughter (§§ 664/192, subd. (a); count 1) and guilty of child endangerment (§ 273a, subd. (a); count 2). The jury found true that he personally inflicted great bodily injury upon both victims (§ 12022.7, subd. (a)) and he used a firearm in both crimes (§ 12022.5, subd. (a)). Finally, as to both victims, the jury found him not guilty of either assault with a firearm or simple assault (§§ 245, subd. (a)(2), 240; counts 3 & 4). He received an aggregated prison sentence of eight years. This included a low term of two years for the child endangerment in count 2, a concurrent low term of one year six months for the attempted voluntary manslaughter in count 1, three years for the firearm enhancement in count 2, and three years for the personal infliction of great bodily injury in count 2.

In our unpublished opinion in People v. Acosta (November 27, 2017, F071683), we affirmed appellant’s judgment. In that appeal, appellant had raised various constitutional claims regarding the admission of his recorded statements to a child protective services employee. He had further raised claims of insufficient evidence and instructional error. Finally, he had argued that the trial court erred in permitting a deputy district attorney to testify at trial.

On December 29, 2017, appellant filed a petition for review with the California Supreme Court. On January 8, 2018, appellant filed a motion for consideration of additional issues. On February 21, 2018, the high court granted appellant’s request for consideration of an additional issue. It granted a petition for review of our opinion and transferred this matter back to this court with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 620 (Stats. 2017, ch. 682). This bill, which became effective January 1, 2018, gave trial courts new discretion to strike or dismiss firearm enhancements otherwise required to be imposed at the time of sentencing. (§§ 12022.5, subd. (c); 12022.53, subd. (h).)

Via supplemental briefing the parties agreed, as did we, that the amendment to section 12022.5 applied retroactively to appellant’s case, which was not yet final. We remanded the matter to the trial court so it could exercise its sentencing discretion regarding whether to strike or dismiss the firearm enhancement. (§ 12022.5, subd. (c).) We otherwise affirmed the judgment.

The remittitur was issued on July 26, 2018. On December 5, 2018, appellant filed a motion in the lower court to strike his firearm enhancement (§ 12022.5, subd. (a)). Two days later, the court denied appellant’s motion. The court stated it remembered “this case very well.” It recalled that probation had recommended either a mid or upper term sentence, but the court had imposed the low term. The court stated that “[t]he facts of the case do not suggest to me that I should exercise my discretion to go lower than the current sentence.” The court ordered the previously imposed sentence to remain in effect. That same day, appellant filed the present appeal.

Appellant’s counsel subsequently filed a brief with this court that raised no issues, but it asked us to review the record independently. (See People v. Wende (1979) 25 Cal.3d 436.) In June 2019, we advised appellant of his right to file a supplemental brief. Appellant did not file one.

We have conducted an independent review of the entire appellate record. We determine that no arguable factual or legal issues exist. (See People v. Wende, supra, 25 Cal.3d at p. 443.) As such, we again affirm appellant’s judgment.

DISPOSITION

The judgment is affirmed.