People v. Johnson

• Docket Number: C094491
• Decision Date: 04 October 2022
• Citation: People v. Johnson, 83 Cal.App.5th 1074, 299 Cal.Rptr.3d 894 (Cal. App. 2022)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Fredrick Lamar JOHNSON, Defendant and Appellant.
• Court: California Court of Appeals

83 Cal.App.5th 1074

299 Cal.Rptr.3d 894

The PEOPLE, Plaintiff and Respondent,

v.Fredrick Lamar JOHNSON, Defendant and Appellant.

C094491

Court of Appeal, Third District, California.

Filed October 4, 2022

Barbara A. Smith, 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, Senior Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Duarte, J.

We are called upon to decide the extent to which fairly recent legislation, when considered together with the available caselaw interpreting that legislation, conferred new discretion on trial courts at sentencing. The discretion at issue here is a trial court's choice to impose an uncharged lesser included firearm enhancement in lieu of the greater enhancement of conviction, after the greater enhancement is stricken by the trial court in its exercise of discretion. In what has become the customary positioning in these cases, here the offender argues for more discretion and the Attorney General argues for less.

As we next explain, in this case we agree with defendant Fredrick Lamar Johnson that the trial court has broad discretion to impose a lesser uncharged firearm enhancement provided for by Penal Code section 12022.5, subdivision (a), when it exercises its discretion to strike a Penal Code section 12022.53, subdivision (b) firearm enhancement of conviction.¹ We remand the case for a full resentencing hearing, where the trial court may consider exercise of its discretion and any other new laws related to sentencing that may apply to defendant.

BACKGROUND

On January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620) went into effect. (Stats. 2017, ch. 682, §§ 1 - 2.) Senate Bill No. 620 amended sections 12022.5 and 12022.53, granting trial courts discretion pursuant to section 1385 to strike or dismiss certain firearm enhancements. ( §§ 12022.5, subd. (c) (12022.5(c))); 12022.53, subd. (h) (12022.53(h).)

Relying primarily on legislative intent, on January 20, 2022, our Supreme Court held in People v. Tirado (2022) 12 Cal.5th 688, 289 Cal.Rptr.3d 59, 502 P.3d 941 ( Tirado ) that although the amendments at issue spoke only in terms of striking or dismissing a firearm enhancement, trial courts also have discretion under Senate Bill No. 620 to impose uncharged lesser section 12022.53 enhancements after striking or dismissing the greater. As relevant here, this interpretation appeared to leave unresolved an apparent conflict with other unamended statutory provisions that require imposition of the harshest available punishment (see § 12022.53, subd. (f) (12022.53(f)) [requiring the court to impose "the enhancement that provides the longest term of imprisonment"]) and limit sentencing to enhancements contained within the same statute unless the other statute provided for harsher consequences ( § 12022.53, subd. (j) (12022.53(j)) [requiring the court to impose punishment for the § 12022.53 enhancement "rather than imposing punishment authorized under any other" statute unless the other enhancement provides for a more severe penalty or a longer prison term]).

Long before the passage of Senate Bill No. 620, in 2002, defendant pleaded no contest in two cases to various counts in connection with multiple armed robberies and, as relevant here, admitted seven section 12022.53, subdivision (b) (12022.53(b)) enhancements. He was sentenced to 46 years four months in prison ( People v. Johnson (Nov. 29, 2018, C086041) [nonpub. opn.]) and resentenced approximately 15 years later to 46 years in prison ( § 1170, subd. (d) ; People v. Hill (1986) 185 Cal.App.3d 831, 833, 230 Cal.Rptr. 109 ).

By the time we considered defendant's appeal from his second sentencing hearing, Senate Bill No. 620 had been enacted, and we remanded the case for discretionary resentencing pursuant to the new amendments, with directions to obtain and consider a supplemental probation report. ( People v. Johnson , supra , C086014.) At the resentencing hearing on remand, as relevant here, the trial court acknowledged it had discretion--pursuant to the amendments to section 12022.53 resulting from the passage of Senate Bill No. 620--to strike one or more of defendant's seven section 12022.53(b) firearm enhancements. ( § 12022.53(h).) After making a number of appropriate considerations, the court concluded the firearm enhancements were "inextricably entwined" with each of the robberies and assaults and declined to strike any of the enhancements. The court was not asked to consider imposing lesser firearm enhancements in lieu of the section 12022.53(b) enhancements of conviction.

Defendant timely appealed; the case was initially fully briefed on March 7, 2022, and assigned to the panel as presently constituted on May 5, 2022. On June 9, 2022, we directed the parties to file supplemental briefs. We set the case for oral argument, and it was argued and submitted on September 27, 2022.

Relying on the Supreme Court's recent decision in Tirado, supra, 12 Cal.5th 688, defendant argues we should again remand the case for resentencing to allow the trial court to exercise informed discretion on whether to strike one or more of the section 12022.53(b) firearm enhancements with the option to then substitute uncharged lesser enhancements for the stricken enhancements of conviction. The Attorney General did not respond to this claim in his responsive briefing; in supplemental briefing, he now argues section 12022.53(j) prohibits the trial court from imposing an uncharged section 12022.5(a) enhancement after striking a section 12022.53 enhancement of conviction, and contends our high court's decision in Tirado does not dictate a contrary conclusion. While this case was pending, Division Two of the Fourth Appellate District decided People v. Fuller (2022) 83 Cal.App.5th 394, 299 Cal.Rptr.3d 344 [2022 Cal.App. Lexis 787], which concluded that "under Tirado the sentencing court may impose an uncharged lesser included enhancement under section 12022.5 after striking a greater enhancement under section 12022.53." ( Id. at 83 Cal.App.5th at p. 397, 299 Cal.Rptr.3d 344.) Some unpublished decisions have come to this same result, but others have come to a contrary conclusion.²

We agree with defendant that remand is warranted, as we next explain.³

DISCUSSION

ILegal Principles

A. Standard of Review

This is a question of statutory interpretation, which we review de novo. ( People v. Medina (2018) 24 Cal.App.5th 61, 66, 233 Cal.Rptr.3d 758.) "Under fundamental rules of statutory construction, we must ascertain the intent of the Legislature, or the electorate, from examining the statute as a whole in order to effectuate the purpose of the law." ( People v. Saelee (2018) 28 Cal.App.5th 744, 752, 239 Cal.Rptr.3d 475.) "Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction." ( People v. Johnson (2002) 28 Cal.4th 240, 244, 121 Cal.Rptr.2d 197, 47 P.3d 1064.)

"Nevertheless, the ‘plain meaning’ rule does not prevent a court from determining whether the literal meaning of the statute comports with its purpose. [Citations.] Thus, although the words used by the Legislature are the most useful guide to its intent, we do not view the language of the statute in isolation. [Citation.] Rather, we construe the words of the statute in context, keeping in mind the statutory purpose. [Citation.] We will not follow the plain meaning of the statute ‘when to do so would "frustrate[ ] the manifest purposes of the legislation as a whole or [lead] to absurd results." ’ [Citations.] Instead, we will ‘ "interpret legislation reasonably and ... attempt to give effect to the apparent purpose of the statute." ’ " ( MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1083, 36 Cal.Rptr.3d 650.) Thus, to determine the most reasonable interpretation of a statute, we look to its legislative history and background. ( Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332, 104 Cal.Rptr.3d 219, 223 P.3d 77 ; People v. DeJesus (2019) 37 Cal.App.5th 1124, 1129-1130, 250 Cal.Rptr.3d 840.) " ‘We must harmonize "the various parts of a statutory enactment ... by considering the particular clause or section in the context of the statutory framework as a whole." ’ " ( People v. Camacho (2019) 32 Cal.App.5th 998, 1007, 244 Cal.Rptr.3d 398.)

We next consider the relevant statutory provisions and their statutory framework.

B. Section 12022.53

Section 12022.53 "sets out ‘sentence enhancements for personal use or discharge of a firearm in the commission’ of specified felonies. [Citation.] Section 12022.53, subdivision (a) lists the felonies to which the section applies. Section 12022.53(b) mandates the imposition of a 10-year enhancement for personal use of a firearm in the commission of one of those felonies; section 12022.53 [, subd.] (c) mandates the imposition of a 20-year enhancement for personal and intentional discharge of a firearm; and section 12022.53 [, subd.] (d) provides for a 25 year-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death to a person other than an accomplice." ( Tirado , supra , 12 Cal.5th at pp. 694-695, 289 Cal.Rptr.3d 59, 502 P.3d 941.)

The operative version of section 12022.53(h), effective after the passage of Senate Bill No. 620, provides that a "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." ( § 12022.53(h).) Both Tirado and People v. Morrison (20...