11/14/2020 People v.

Santana, G054592 | Casetext

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People v. Santana
COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE Jan 11, 2018

G054592 (Cal. Ct. App. Jan. 11, 2018)

G054592

01-11-2018

THE PEOPLE, Plaintiff and Respondent, v. ALBERT ARIAS SANTANA, Defendant and
Appellant.

Marcia R. Clark, 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, Collette C. Cavalier and Teresa Torreblanca,
Deputy Attorneys General, for Plaintiff and Respondent.

MOORE, ACTING P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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. (Super. Ct. No. 14CF2603) OPINION
Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge.
Affirmed and remanded. Marcia R. Clark, 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, Collette C.
Cavalier and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

***
2 *2

Defendant Albert Arias Santana and Joel Aguilar were charged together with a deliberate
and premeditated attempted murder (Pen Code,1 §§ 187, subd. (a), 664, subd. (a); count
one), conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a); count two), and
active participation in a criminal street gang (§ 186.22, subd. (a); count three). The
information alleged counts one and two were committed for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)). Additionally and particularly pertinent to this appeal, it was
alleged that defendant, a gang member and principal in the offenses charged in counts one
and two, vicariously discharged a firearm causing great bodily injury (GBI). (§ 12022.53,
subds. (d), (e)(1).)2 The jury found defendant guilty of conspiring to commit murder, and
active participation in a criminal street gang. The jury also found true the crime was
committed for the benefit of a criminal street gang and that defendant, a gang member,

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11/14/2020 People v. Santana, G054592 | Casetext

vicariously
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attempted murder charge. That charge was subsequently dismissed on the prosecutor's 1

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1 All undesignated statutory references are to the Penal Code. 2

Results People v. Santana Copy Cite

2Read
Aguilar Analyses
was tried separately
0 Briefsand
0 is not a party
Citing Casesto this
0 appeal. The separate charge and
sentencing allegations made against only Aguilar have been omitted.

The court sentenced defendant to 25 years to life on count two and a consecutive 25 years
to life on the section 12022.53 enhancement. Defendant contends the trial court abused its
discretion in refusing to strike the gang enhancement. (§ 186.22, subd. (b)(1).) He reasons
that had the court struck the gang enhancement, he would not have been subject to a
consecutive term of 25 years to life on the section 12022.53 enhancement. Defendant also
contends section 12022.53 violates equal protection because it only applies in gang crimes
3 and not to similar offenses by aiders and abettors of racist or terrorist organizations. *3

While defendant's appeal was pending, the Legislature enacted Senate Bill No. 620,
authorizing trial court's to strike section 12022.53 enhancements for purposes of sentencing.
In supplemental briefing, defendant sought remand to permit the trial court to exercise its
discretion directly on the section 12022.53 enhancement of 25 years to life. Although the
trial court denied defendant's invitation to strike the gang enhancement finding—apparently
believing it had the authority to grant the defendant's request—which would have had the
effect of making defendant ineligible for the section 12022.53 enhancement, we will
remand the matter. When the trial court denied defendant's invitation to strike the gang
enhancement finding, the public policy of California was to impose the firearm
enhancements across the board to all who came within the provisions of section 12022.53,
without concern for the circumstances of the defendant, as evidenced by former subdivision
(h) of that section.3 Senate Bill No. 620 changed the public policy. Now, "[t]he 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,
subd. (h).) With the amendment of subdivision (h) of section 12022.53, the penalties
provided in section 12022.53 are to be imposed after thoughtful application as to whether
the individual circumstances warrant imposition. If it appears to the sentencing court, upon
such contemplation, that a defendant who was unarmed and does not deserve the harsh
punishment provided by section 12022.53 (here, a term of 25 years to life consecutive to the
sentence imposed on the crime he committed) because he is young and has a de minimis
record, the court is free to strike the penalty imposed by section 12022.53. Because
California's public policy has changed and because defendant is entitled to have the
4 ameliorative amendment *4 applied retroactively (In re Estrada (1965) 63 Cal.2d 740), we
will remand the matter for the trial court to consider whether to strike the section 12022.53
enhancement in this matter in light of defendant's youth, lack of a substantial record, and
any other relevant facts.
3 "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an

allegation under this section or a finding bringing a person within the provisions of this
section." (§ 12022.53, former subd. (h), added by Stats. 2010, ch. 711, § 5, repealed by Stats.
2017, ch. 682, § 2, eff. Jan. 1, 2018.)

I
FACTS
The following facts suffice for purposes of the issues presented on appeal. Maria V. grew up
around Townsend Street gang territory. Her brothers are members of the Townsend Street
gang. She is aware that the West Myrtle Street gang is a rival of the Townsend Street gang.
Her husband is a member of the West Myrtle Street gang.
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Ontrial
8 days left in your free July 22, 2014,4 at approximately 11:30
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off if you Mariabywas
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up her children from the babysitter. She parked in the middle of the street and was talking to 1

CARA A.I. "cheri" "pham" JX

the babysitter when she heard four or five gunshots. She saw someone had been shot. She
§ AN

did not know the person who had been shot. 2

Results People v. Santana Copy Cite
4 Maria did not remember the date in July 2014.
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Santa Ana Police Corporal Galen Diaz was on duty on July 24, 2014, and responded to the
scene of the shooting on West Myrtle Street. He saw a man who had a gunshot wound to his
upper left chest and another to his left tricep. He was sitting in a chair with a number of
people congregating around him. Diaz identified the man as Antonio M. Diaz knew him by
his moniker, "Reaper." Diaz was familiar with him, having stopped him several times.
Antonio's tattoos indicated he belonged to the West Myrtle Street Gang. He had the number
2313 tattooed above his right eyebrow. The 23 represents W, the 23rd letter of the alphabet,
and the 13 represents the letter M, the 13th letter of the alphabet. Antonio thought he was
going to die and wanted to go to the hospital. He was uncooperative and Diaz received no
5 information about suspects from him, which Diaz said is typical in gang shooting cases. *5

Maria called 911 to report the shooting a little after midnight. She said she saw a blue Ford
Explorer from Townsend Street and saw Casper and Bam Bam in it. She said Bam Bam's
name is Julio Aguilar, and she told dispatch where Casper lived. Maria said Bam Bam was
in the backseat of the vehicle with the gun and Casper was driving. She later told Officer
Diaz that Bam Bam did the shooting. At trial, she identified defendant as Casper.5
5 At trial, Maria claimed not to have seen who fired the shots or from what vehicle they were

fired.

Two days after the shooting, Maria was interviewed by the police. She said she grew up
with Bam Bam (Aguilar) and identified a photograph of him. She said defendant is Casper
and that she knows his Ford Explorer. She said she was parked in the middle of street, saw
the Explorer approach, and immediately recognized the vehicle. Defendant was driving
with no front seat passenger. Aguilar was in the backseat. She saw Aguilar fire six shots
with a revolver. Then the Explorer "took off." She was upset because they had fired shots
while her children were present, so she drove to Townsend Street and stopped in the middle
of the street, where she saw Aguilar and "told him off."

Detective Chuck Elms of the Santa Ana Police Department testified as a gang expert. He
said the Townsend Street and the West Myrtle Street gangs are rivals. Their turfs border
each other. He said defendant and Aguilar each have Townsend Street gang tattoos. In
Elms's opinion, defendant and Aguilar were active participants in the Townsend Street gang
on July 22, 2014. In response to a hypothetical question containing the facts of this case,
Elms opined the shooting was done in association with and to assist and promote a criminal
6 street gang. *6

II
DISCUSSION
A. Section 1385 as it Related to Section 12022.53 Before its Recent Amendment

Section 12022.53, subdivision (a)(17), provides certain penalties for the use of a firearm
during enumerated crimes, including any crime punishable by life imprisonment. Defendant
was convicted of conspiracy to commit murder, a crime punishable by imprisonment in the
state prison for life. (§§ 182, subd. (a)(1), 187, subd. (a).) Any person who "personally and
intentionally discharges a firearm and proximately causes great bodily injury, . . . or death,

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11/14/2020 People v. Santana, G054592 | Casetext

to trial
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crimes, "shall be punished by an additional and consecutive term of imprisonment in the 1

CARA A.I.
state prison "cheri" "pham"
for 25 years to life." (§ 12022.53, subd. (d).) JX § AN

The 25 years to life enhancementPeopleprovided in subdivision (d) of section 12022.53 also

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applies to any principal in the crime (i.e., an aider and abettor) if the prosecution pleads and
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proves the defendant violated section 186.22, subdivision (b), and "[a]ny principal in the
offense" violated subdivision (d) of section 12022.53. (§ 12022.53, subds. (e)(1)(A), (B).)
As Aguilar personally and intentionally discharged a firearm causing GBI to Antonio and
the jury found defendant's participation in the crime was for the benefit of, at the direction
of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), defendant is subject
to the 25 years to life enhancement provided by section 12022.53, subdivision (e).

Section 1385, subdivision (a), generally gives courts the authority to dismiss an action in
the furtherance of justice. "'"'[I]n furtherance of justice,' requires consideration both of the
constitutional rights of the defendant, and the interests of society represented by the People,
in determining whether there should be a dismissal. [Citation.]" [Citations.]'" (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) "If the court has the authority
7 pursuant to subdivision (a) to strike or dismiss an *7 enhancement, the court may instead
strike the additional punishment for that enhancement in the furtherance of justice in
compliance with subdivision (a)." (§ 1385, subd. (c)(1).)

At sentencing, defendant invited the trial court to strike the section 186.22, subdivision (b)
(1), true finding. He reasoned that while subdivision (h) of section 12022.53 prohibits the
court from striking the firearm enhancement (and its consecutive 25 years to life penalty),
the court may strike the section 186.22, subdivision (b)(1), enhancement, and the finding on
that enhancement is a prerequisite to the firearm enhancement applying in defendant's case.6
In other words, if the court struck the section 186.22, subdivision (b)(1) finding, the firearm
enhancement would not apply. The trial court denied the request to strike the gang
enhancement. The court did not conclude it lacked the authority under section 1385 to strike
the gang enhancement. Rather, it exercised its discretion and denied the request, stating its
multiple reasons for doing so.
6 In October 2017, the Governor signed Senate Bill No. 620, which becomes effective on

January 1, 2018. That bill amended subdivision (h) of section 12022.53 to specifically provide
the trial court has the authority to dismiss or strike the enhancement provided in section
12022.53. The application of this amendment to this appeal is discussed in section C, infra. ----
----

As a general rule, a trial court has the authority under section 1385 to strike a gang
enhancement under section 186.22, subdivision (b)(1). (People v. Fuentes (2016) 1 Cal.5th
218, 221-222.) However, given the language in section 12022.53, subdivision (h) then in
effect, withdrawing the court's section 1385 authority—"the court shall not strike an
allegation under this section or a finding bringing a person within the provisions of this
section"—may the court strike a gang enhancement when it has the effect of removing a
section 12022.53 enhancement as well? We need not decide this issue here, because the
court acted as if it had the authority to strike the gang enhancement and its decision denying
8 the request does not amount to an abuse of discretion. *8

When a trial court has section 1385 authority, its refusal to dismiss or strike an
enhancement is reviewed for an abuse of discretion. (See People v. Carmony (2004) 33
Cal.4th 367, 375.) A court abuses its discretion if its decision "'"falls outside the bounds of
reason."'" (People v. Fuiava (2012) 53 Cal.4th 622, 711.) Here, the court gave a number of
reasons for denying defendant's request: the offense was "a violent felony"; the offense was
"more serious than other felonies"; the victim suffered GBI; "the facts and circumstances of

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11/14/2020 People v. Santana, G054592 | Casetext

thetrial
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fellow gang member drove to the location to shoot a rival gang member; defendant drove 1

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mitigating circumstance; and defendant was not remorseful. We reject defendant's 2

Results
contention that the court failed toPeople v. Santana
take into Copy Cite
account defendant was in his early 20's at the
time ofRead
the offense. The
Analyses 0 court was
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not mention his age or his relatively minimal past record does not mean they were not
considered. B. Equal Protection

The 25 years to life enhancement provided by section 12022.53, subdivision (d), applies to
individuals who (1) commit an offense enumerated in subdivision (a) of that section, and
(2) personally and intentionally discharge a firearm, proximately causing GBI or death to
one other than an accomplice. Subdivision (e) contains an exception and requires
imposition of the enhancement on a nonshooter, if he or she (1) was an aider and abettor
who committed the crime for the benefit of, or in association with, a criminal street gang,
and (2) another principal in the crime personally and intentionally discharged the firearm
causing GBI or death. (§ 12022.53, subd. (e)(1).) Defendant contends subdivision (e) of
section 12022.53 violates equal protection. According to defendant, he is similarly situated
9 with nongang member aiders *9 and abettors, and the Legislature did not have a compelling
reason for treating gang members differently.

Defendant did not raise the equal protection argument below and has technically forfeited
the issue. (People v. Pecci (1999) 72 Cal.App.4th 1500, 1503.) We address the issue to
foreclose a future claim of ineffective assistance of counsel.

The Fourteenth Amendment prohibits states from denying "any person within its
jurisdiction the equal protection of the laws." (U.S. Const., 14th Amend.) California's
Constitution also contains an equal protection clause. (Cal. Const., art. I, § 7.) The state and
federal equal protection provisions "'"are substantially equivalent and analyzed in a similar
fashion."'" (People v. Noyan (2014) 232 Cal.App.4th 657, 666.)

"'"The concept of the equal protection of the laws compels recognition of the proposition
that persons similarly situated with respect to the legitimate purpose of the law receive like
treatment."' [Citation.] 'The first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a classification that affects two or
more similarly situated groups in an unequal manner.' [Citations.] This initial inquiry is not
whether persons are similarly situated for all purposes, but 'whether they are similarly
situated for purposes of the law challenged.' [Citation.]" (Cooley v. Superior Court (2002)
29 Cal.4th 228, 253.)

Consequently, the threshold question is "whether two classes that are different in some
respects are sufficiently similar with respect to the law[] in question to require the
government to justify its differential treatment of these classes under [the challenged]
law[]." (People v. McKee (2010) 47 Cal.4th 1172, 1202.) If individuals are not similarly
situated for purposes of the law, there is no arguable equal protection violation. (People v.
Buffington (1999) 74 Cal.App.4th 1149, 1155.)

Upon a determination that two or more similarly situated groups are treated disparately, the
next step is to decide upon the level of scrutiny to which the state's purported justification
10 must be subjected. (Pederson v. Superior Court (2003) 105 *10 Cal.App.4th 931, 940.)
Generally, the court applies the rational-basis standard. (Nordlinger v. Hahn (1992) 505
U.S. 1, 10-11.) "Under rational-basis review, where a group possesses 'distinguishing
characteristics relevant to interests the State has the authority to implement,' a State's
decision to act on the basis of those differences does not give rise to a constitutional
violation. [Citation.] 'Such a classification cannot run afoul of the Equal Protection Clause
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if trial
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governmental purpose.' [Citations.]" (Board of Trustees v. Garrett (2001) 531 U.S. 356, 1

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Only when the disparate treatment operates to the disadvantage of a suspect class or
2
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interferes with the exercise of a fundamental right is legislation subject to strict scrutiny
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analysis. (Massachusetts Bd. of Retirement v. Murgia (1976) 427 U.S. 307, 312.) Under
strict scrutiny analysis, the state has the burden of proving the disparate treatment is
narrowly tailored to serve a compelling state interest. (Perry Educ. Ass'n v. Perry Local
Educators' Ass'n (1983) 460 U.S. 37, 45.)

The defendant in People v. Gonzales (2001) 87 Cal.App.4th 1, 11-12, claimed section

12022.53 violated equal protection. He contended he was similarly situated with other
aiders and abettors who encouraged the commission of an offense that resulted in murder,
but who were not eligible for the 25 years to life enhancement set forth in section 12022.53,
subdivision (e). (People v. Gonzales, supra, 87 Cal.App.4th at p. 13.) The court, however,
found the defendant's challenge failed at the threshold stage because, he was not similarly
situated with those who did not qualify for imposition of the enhancement. "Unlike other
aiders and abettors who have encouraged the commission of a target offense resulting in a
murder, defendants committed their crime with the purpose of promoting and furthering
their street gang in its criminal conduct." (Ibid.) We agree with the Gonzales court and
reject defendant's contention that "[t]here is no real difference in conduct between aiders
11 and abettors in gang shootings and non-gang shootings." *11

A criminal street gang consists of three or more people "whether formal or informal, having
as one of its primary activities the commission of one or more of the criminal acts
enumerated" in subdivision (e) of section 186.22, "having a common name or common
identifying sign or symbol, and whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) The group
becomes a criminal street gang only after a member or members have had a juvenile
petition sustained or suffered a conviction for two or more of the offenses listed in
subdivision (e) of section 186.22, "provided at least one of these offenses occurred after the
effective date of this chapter and the last of those offenses occurred within three years after
a prior offense, and the offenses were committed on separate occasions, or by two or more
persons." (§ 186.22, subd. (e).)

In enacting the California Street Terrorism Enforcement and Prevention Act of which
section 186.22 is a part, the Legislature found "that the State of California is in a state of
crisis which has been caused by violent street gangs whose members threaten, terrorize, and
commit a multitude of crimes against the peaceful citizens of their neighborhoods. These
activities, both individually and collectively, present a clear and present danger to public
order and safety and are not constitutionally protected. The Legislature finds that there are
nearly 600 criminal street gangs operating in California, and that the number of gang-
related murders is increasing. The Legislature also finds that in Los Angeles County alone
there were 328 gang-related murders in 1986, and that gang homicides in 1987 have
increased 80 percent over 1986. It is the intent of the Legislature in enacting this chapter to
seek the eradication of criminal activity by street gangs by focusing upon patterns of
criminal gang activity and upon the organized nature of street gangs, which together, are the
chief source of terror created by street gangs. The Legislature further finds that an effective
means of punishing and deterring the criminal activities of street gangs is through forfeiture
12 of the profits, proceeds, and *12 instrumentalities acquired, accumulated, or used by street
gangs." (§ 186.21, italics added.)

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What
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pattern of signature crimes for the purpose of promoting the gang's criminal reputation. 1

CriminalCARA A.I.
street gangs"cheri" "pham"
commit crimes not only for money, but also to instill JX
fear the § AN

community. "When community members fear a gang, they are reluctant to report crime or 2
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to testify against gang members."People (People v. v.Santana Copy Cite
Vega (2013) 214 Cal.App.4th 286, 290.) Fear
is instilled
Read in the community
Analyses 0 through
Briefs 0 the commission
Citing Cases 0 of violent acts. (Ibid.) It is this "state
of crisis," resulting from the "clear and present danger" posed by criminal street gangs that
forms the basis for imposing section 12022.53, subdivision (d)'s 25 years to life term on
aiders and abettors when the crime was committed for the benefit of a criminal street gang
and another principal discharges a firearm causing GBI or death. Aiders and abettors who
do not commit their offense for the benefit of a criminal street gang do not pose the same
danger to the public.

In People v. Hernandez (2005) 134 Cal.App.4th 474, an equal protection challenge was
again made to section 12022.53, subdivision (e). In an apparent effort to avoid the result
reached in People v. Gonzales, supra, 87 Cal.App.4th 1, the defendant narrowed his equal
protection argument to: "section 12022.53 violates the guarantee of equal protection of the
law because it unreasonably discriminates between aiders and abettors of firearm users who
commit murder for the benefit of a 'criminal street gang' and aiders and abettors of firearm
users who commit murder for the benefit of equally dangerous criminal associations such as
drug cartels, White supremacist groups and terrorist organizations." (People .v Hernandez,
supra, 134 Cal.App.4th at p. 481.) In addressing the claim, the Hernandez court observed,
"Certainly a cogent argument can be made those who aid and abet a murder for the benefit
of a 'criminal street gang' are similarly situated with those who aid and abet a murder for the
benefit of other outlaw organizations. Indeed it could be argued the two classes of aiders
13 and abettors are so *13 similar section 12022.53 does not distinguish between them and
there is no equal protection issue." (Ibid., italics added.) In other words, drug cartels, racist
organizations, and terrorist organizations may also qualify as criminal street gangs under
sections 186.22. If they do, there is no difference in treatment between them. (See People v.
Johnson (2016) 62 Cal.4th 600, 607-608 [Pen1, a White supremacist organization, qualified
as a criminal street gang].)

If there is a drug cartel or terror organization that has not qualified as a criminal street gang,
it would seem it is only a matter of time until they do. Criminal street gangs do not spring
forward fully formed. A certain history is required for a group to qualify as a criminal street
gang. (§ 186.22, subds. (e), (f).) Prior to qualifying as a criminal street gang the
organization does not present the "clear and present danger" criminal street gangs present
(see § 186.21), justifying the imposition of the enhancement provided in section 12022.53,
subdivision (e).

While the court in People v. Hernandez, supra, 134 Cal.App.4th at pages 481-483, went on
to decide the equal protection issue on the assumption the defendant made the requisite
showing of disparate treatment of similarly situated groups, we will not because we find
defendant has not shown he is similarly situated with aiders and abettors who commit one
or more of the offenses listed in section 12022.53, subdivision (a), but who did not commit
the crime(s) for the benefit of a criminal street gang in violation of section 186.22,
subdivision (b)(1). C. Senate Bill No. 620

As mentioned above, Senate Bill No. 620 amended subdivision (h) of section 12022.53,
which prohibited a court from striking or dismissing an enhancement found true pursuant to
section 12022.53. "Notwithstanding Section 1385 or any other provision of law, the court
shall not strike an allegation under this section or a finding bringing a person within the
14 provisions of this section." (§ 12022.53, former subd. (h).) *14 After defendant's conviction,
the Legislature passed Senate Bill No. 620. The Governor signed the bill and it took effect

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ontrial
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court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, 1

CARA A.I.
strike or "cheri" "pham"
dismiss an enhancement otherwise required to be imposed by this JX §
section. The AN

authority provided by this subdivision applies to any resentencing that may occur pursuant 2
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to any other law." People v. Santana Copy Cite
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In a supplemental opening brief, defendant argued Senate Bill No. 620 should be given
retroactive effect and we should remand the matter to the superior court for the trial court to
exercise its discretion in deciding whether to strike the section 12022.53 enhancement. We
then issued an order for the Attorney General to file a supplemental brief on the issue, and
permitted defendant to file a reply.

Defendant first argues the rule enunciated in In re Estrada, supra, 63 Cal.2d 740, requires
Senate Bill No. 620 be given retroactive effect. Under Estrada, "[i]f the amendatory statute
lessening punishment becomes effective prior to the date the judgment of conviction
becomes final then, in our opinion, it, and not the old statute in effect when the prohibited
act was committed, applies." (Id. at p. 744.) The Attorney General concedes Senate Bill No.
620 should be retroactively applied to all judgments that are not yet final as of the date the
bill becomes effective, but takes the position that remand is unnecessary because the trial
court already undertook a section 1385 analysis in considering whether to strike the gang
enhancement finding, which would have had the effect of making defendant ineligible for a
section 12022.53 enhancement.

In People v. Francis (1969) 71 Cal.2d 66, 69-70, the defendant was charged with selling
and giving away marijuana. The matter was tried to the court and submitted on the
preliminary examination transcript. (Id. at p. 70) The court found defendant guilty of
possession of marijuana as a lesser included offense. (Ibid.) At the time of the defendant's
sentencing in Francis, possession of marijuana was punishable by a term of one to 10 years
15 in prison. The court also had the authority to grant the defendant *15 probation and require
him to serve time in the county jail as a condition of probation. (People v. Francis, supra,
71 Cal.2d at p. 75.) The trial court sentenced the defendant to state prison. (Id. at p. 70.)
After his conviction, but prior to the conclusion of his appeal, the Legislature amended the
Health and Safety Code, authorizing a trial court to reduce a conviction for possession of
marijuana to a misdemeanor, punishable by a term in county jail. (Ibid.)

The appellate court held the amendment should be given retroactive effect pursuant to In re
Estrada, supra, 63 Call.2d 740. (People v. Francis, supra, 71 Cal.2d at pp. 75-76.) In
arguing against remand, the Attorney General pointed out the trial court rejected the idea of
placing the defendant on probation and to impose county jail time as a condition of
probation. (Id. at p. 76.) In rejecting that contention, the appellate court stated, "[T]he mere
fact the fact that the Legislature changed the offense from a felony to a felony-misdemeanor
conceivably might cause a trial court to impose a county jail term or grant probation in a
case where before the amendment the court denied probation to a defendant eligible
therefor and sentenced the defendant to prison." (Id. at p. 77.)

The same reasoning applies in the present case. The trial court did appear to deny
defendant's invitation to strike the gang enhancement finding while believing it had the
authority to grant the request. However, at the time it did so, it had to have been apparent to
the court the Legislature was against striking a section 12022.53 enhancement given
subdivision (h) of that section purported to prohibit a court from not imposing a section
12022.53 enhancement. Just the fact the Legislature made possession of marijuana
punishable as a felony or a misdemeanor might cause a court to reject a state prison
sentence and to declare the offense to be a misdemeanor, so too might the Legislature
making it clear the enhancements provided in section 12022.53 may be Draconian in given
cases be enough to cause a court to strike the section 12022.53 enhancement in this case.
https://casetext.com/case/people-v-santana-398?q="cheri" "pham" &p=6&tab=keyword&jxs=ca&sort=date-descending&type=case#pa7 8/9
11/14/2020 People v. Santana, G054592 | Casetext

After
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16 record; his only juvenile adjudication occurred when he was *16 16 years old, five years 1

prior toCARA A.I.

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offense; he served but 60 days on that matter; his liability JX §
for the section AN

12022.53 enhancement (25 years to life) is vicarious and based not on his use of a firearm 2
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because he did not use one, but on People v. Santana use;
his codefendant's Copy Cite
and in the approximately two
years defendant
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violation (failing to rise for count) which resulted in the loss of commissary use for three
days.

III
DISPOSITION
The convictions are affirmed. The matter is remanded for the trial court to consider striking
the section 12022.53, subdivision (d), enhancement pursuant to sections 1385 and
12022.53, subdivision (h).

MOORE, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.

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