Filed 8/31/26 P. v. Byrd CA5
Posting with correct case number
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089802
Plaintiff and Respondent,
(Super. Ct. No. F17904653)
v.
ERNEST BYRD, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M.
Skiles, Judge.
Ernest Byrd, in pro. per., and Sylvia W. Beckham, under appointment by the Court
of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Snauffer, J. and DeSantos, J.
INTRODUCTION
In 2018, appellant and defendant Ernest Byrd (defendant) was convicted of
robbery with an enhancement for personal use of a firearm (Pen. Code,1 § 12022.53,
subd. (b)), burglary, and misdemeanor resisting arrest, with prior conviction allegations
found true. He was initially sentenced to the third strike term of 50 years to life plus
30 years. This court affirmed defendant’s convictions but remanded three times for the
trial court to conduct resentencing hearings to consider whether to exercise its discretion
to reduce certain segments of his sentence pursuant to statutes that were amended. The
trial court ultimately dismissed one prior strike conviction and two prior serious felony
enhancements, declined to dismiss the firearm enhancement, and resentenced defendant
to the second strike determinate term of 18 years eight months.
At the third resentencing hearing, the trial court considered whether to exercise its
discretion to reduce the firearm enhancement to a lesser and uncharged enhancement,
pursuant to People v. McDavid (2024) 15 Cal.5th 1015 (McDavid), declined to do so, and
again sentenced defendant to 18 years eight months.
On appeal from the trial court’s ruling at the third resentencing hearing, appellate
counsel filed a brief that summarized the facts with citations to the record, raised no
issues, and asked this court to independently review the record. (People v. Wende (1979)
25 Cal.3d 436 (Wende).) In response to this court’s notice, defendant filed a
supplemental letter brief and argues the section 12022.53, subdivision (b) firearm
enhancement should have been stricken or reduced. We affirm.
FACTS2
“The morning of May 27, 2017, [Oscar F.] was robbed. According to [Oscar F.],
defendant asked him for a ride and [Oscar F.] agreed to give him one in exchange for
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2 After notice to the parties and without objection, we take judicial notice of the
entirety of the records before this court, including our nonpublished opinion, from
2.
$20. [Oscar F.] knew defendant through defendant’s sister and had met him about four
times before, but he did not know defendant’s name. He did not know where defendant
wanted to go. When defendant sat down in the passenger seat, he pointed a gun towards
[Oscar F.’s] chest and told [Oscar F.] to hand over his money and jewelry. Defendant
then pulled a chain off [Oscar F.’s] neck and rings off his fingers and grabbed
[Oscar F.’s] cellular phone. [Oscar F.] later saw defendant in pictures on Facebook
wearing his jewelry. He identified defendant as the perpetrator in a photographic lineup
after the robbery and at trial.” (Byrd I, supra, F077681 at pp. 4–5.)
“On August 10, 2017, defendant and another perpetrator burglarized a house while
the occupants [the H.s] were away. That day, [R.H.] received a call from police notifying
her someone had broken a window in her house. When [R.H.] returned home, the [H.s’]
jewelry and money were missing, including a bundle of approximately seventy $2 bills
they had kept in a jar. The kitchen window was broken, and the house had been
ransacked.” (Byrd I, supra, F077681 at pp. 2–3.)
“When responding to the burglary call, Officer Gunter Meiss saw two individuals,
including defendant, walking on the south side of the [H.s’] house. When defendant and
the other individual saw Officer Meiss, they started to run. Officer Meiss pursued them
in his police car. Defendant and the other man split up, and Officer Meiss followed
defendant. Officer Meiss came within 15 yards of defendant when defendant jumped
over a fence and Officer Meiss lost sight of him. Officer Meiss and another officer
established a perimeter to contain the suspects. The police ultimately apprehended
defendant inside a shed in a neighboring backyard after a police dog alerted them to his
presence. Upon searching defendant, the police discovered jewelry and money, including
a bundle of $2 bills in defendant’s pocket. [R.H.] identified the jewelry and $2 bills as
defendant’s direct appeal in People v. Byrd (Nov. 3, 2020, F077681) [nonpub. opn.]
(Byrd I), from which the following factual statement is taken.
3.
hers but reported her family’s real gold jewelry was still missing. Officers identified
defendant at trial as the individual they saw by the [H.s’] property whom they pursued
and ultimately apprehended.” (Byrd I, supra, F077681 at p. 3.)
“While in custody, defendant made calls from jail that were recorded and
monitored by detectives. In one of the calls, defendant instructed the listener where to
retrieve some of the real gold jewelry he had hidden after the burglary. Police went to the
location defendant discussed and recovered a red jewelry box that was hidden near the
shed where defendant was apprehended. [R.H.] identified the jewelry box and the
jewelry inside as her family’s and noted that some of it was real gold jewelry.” (Byrd I,
supra, F077681 at pp. 3–4.)
“In the same jail call in which defendant discussed the location of the [H.s’]
jewelry box, defendant also discussed creating an alibi for May 27, 2017, and he stated
the ‘Facebook pictures’ were ‘the only evidence.’ ” (Byrd I, supra, F077681 at p. 5.)
PROCEDURAL HISTORY
On October 12, 2017, a first amended consolidated information was filed in
Fresno County Superior Court that charged defendant with count 1, second degree
robbery of Oscar F. (§ 211) with personal use of a firearm (§ 12022.53, subd. (b));
count 2, first degree residential burglary of the H. residence (§§ 459,460, subd. (a)); and
count 3, misdemeanor resisting an officer (§ 148, subd. (a)(1)).
It was further alleged defendant had two prior strike convictions (§ 667,
subds. (b)–(i)), two prior serious felony enhancements (§ 667, subd. (a)(1)), and two prior
prison term enhancements, based on his two convictions for first degree burglary in 2012
and 2015 in Fresno County.
Convictions and Sentence
On March 20, 2018, after a jury trial, defendant was convicted of all counts, and
the jury found the firearm enhancement true. The trial court found the prior conviction
allegations true.
4.
On June 20, 2018, the trial court conducted the sentencing hearing. The court
found defendant was on postrelease community supervision for the 2012 and 2015 prior
burglary convictions when he committed the offenses in this case. The court denied
defendant’s request to dismiss the two prior strike convictions.
The court imposed an aggregate term of 30 years plus 50 years to life based on the
third strike term of 25 years to life for count 1, robbery, plus 10 years for the personal use
of a firearm enhancement; a consecutive third strike term of 25 years to life for count 2,
burglary; 10 years for the two prior serious felony enhancements; and 180 days in jail for
misdemeanor count 3, resisting, with credit for time served. The court dismissed the
prior prison term enhancements. 3
Direct appeal
On direct appeal from the original judgment, this court rejected defendant’s
challenges to the robbery and burglary convictions. (Byrd I, supra, F077681 at pp. 1–2.)
However, this court remanded the matter for the trial court to conduct a new
sentencing hearing because of the following statutory amendments. “Senate Bill
No. 1393 [2017–2018 Reg. Sess.], signed into law on September 30, 2018, amended
sections 667 and 1385 to provide the trial court with discretion to dismiss, in furtherance
of justice, five-year enhancements pursuant to section 667, subdivision (a)(1). [Citation.]
The new law took effect on January 1, 2019. Senate Bill No. 620 [2017–2018 Reg.
Sess.], signed into law on October 11, 2017, amended sections 12022.5 and 12022.53 to
provide the trial court with discretion to dismiss, in furtherance of justice, firearm
enhancements pursuant to sections 12022.5, subdivision (c) and 12022.53,
subdivision (h) [citation]. The new law took effect on January 1, 2018.” (Byrd I, supra,
F077681 at p. 41.)
3 As will be discussed below, the trial court did not realize it had discretion to
dismiss the section 12022.53, subdivision (b) personal use enhancement.
5.
As a result of these amendments, defendant and the People agreed that remand
was required for a new sentencing hearing. “Here, as the parties note, defendant was
sentenced in this case on June 20, 2018, after Senate Bill No. 620 was passed and took
effect, but before Senate Bill No. 1393 was passed and took effect. Thus, at the time of
sentencing, the trial court did not have discretion to strike the prior serious felony
enhancements but did have discretion to strike the 10-year firearm enhancement imposed
pursuant to section 12022.53, subdivision (b). However, the record indicates the trial
court was unaware of its newfound discretion under Senate Bill No. 620 to strike the
firearm enhancement, believing instead that the enhancement was ‘mandatory.’ It also
noted the ‘five-year priors’ pursuant to section 667, subdivision (a)(1) were ‘mandatory.’
And nothing in the record ‘clearly indicates’ the court would not have struck either the
prior serious felony enhancements or the firearm enhancement if it was aware of its
discretion to do so. Thus, we agree with defendant and accept the People’s concession
that remand is required on this basis.” (Byrd I, supra, F077681 at p. 42.)
We remanded for the trial court to conduct a new sentencing hearing “to permit
the trial court to exercise its discretion regarding whether to strike the prior serious felony
enhancements imposed pursuant to … section 667, subdivision(a)(1) in light of Senate
Bill No. 1393 and defendant’s firearm enhancement imposed pursuant to …
section 12022.53, subdivision (b) in light of Senate Bill No. 620.” (Byrd I, supra,
F077681 at p. 44.) We also ordered correction of clerical errors in the original abstract of
judgment. (Ibid.)
First Resentencing Hearing4
On September 23, 2021, the trial court held the first resentencing hearing. “The
trial court noted defendant’s positive conduct in prison (three years into [a] 25-year
4 Judge Skiles, who presided over defendant’s jury trial and conducted the original
sentencing hearing, also conducted the three resentencing hearings on remand.
6.
sentence, which included no new charges or serious rules violations, as well as
participation in educational and vocational training) and relative youth at the time he
committed one of the strike priors, but it could not ignore the facts and circumstances
surrounding defendant’s use of a firearm to commit the robbery. The court then
exercised its discretion and struck the first strike prior and the two prior serious felony
enhancements. The court did not strike the firearm enhancement. The court sentenced
defendant to an aggregate term of 18 years eight months as follows: for robbery
(count 1), three years, doubled to six years based on the remaining strike, plus 10 years
for the firearm enhancement, for a total term of 16 years; for burglary (count 2), one year
four months, doubled based on the remaining strike, for a total term of two years eight
months; and for delaying (count 3), time served.”
Appeal from the first resentencing hearing
In People v. Byrd (Dec. 7, 2022, F083515) [nonpub. opn.] (Byrd II), this court
reversed the trial court’s sentencing order from the first resentencing hearing.5 This court
agreed with the parties the matter must be remanded for another resentencing hearing
“for the trial court to consider the changes made to section 1170, subdivision (b)(6) by
Senate Bill No. 567 (2021–2022 Reg. Sess.).”
We noted that at the first resentencing hearing, “defendant’s attorney also argued
that the trial court possessed the discretion to strike the section 12022.53, subdivision (b)
firearm enhancement and instead impose a lesser included uncharged firearm
enhancement from the lower triad enhancements of section 12022.5, subdivision (a).”
5 The following summary of this court’s opinion in Byrd II is from this court’s
nonpublished opinion after the second resentencing hearing, People v. Byrd
(Nov. 26, 2024, F087189) (Byrd III) [nonpub. opn.], which was filed with the trial court
prior to the third resentencing hearing and is part of the record on appeal.
7.
Byrd II “rejected defendant’s argument and concluded that the lower court did not
possess such discretion.”6
Second Resentencing Hearing
On October 23, 2023, the trial court conducted the second resentencing hearing.
Defendant addressed the trial court and explained his efforts at rehabilitation,
self-improvement, and his motivation to return to society to be a father to his child.
Oscar F., the robbery victim, addressed the trial court and stated defendant almost
killed him and should not be released. Oscar F. further stated he was the victim of a
home-invasion robbery in 2022 and suffered a skull fracture during that crime. Oscar F.
said prior to the 2022 crime, he had seen defendant’s relative in his apartment complex,
6 We note that according to the reporter’s transcript for the first resentencing
hearing, the trial court erroneously stated the midterm for count 1, second degree robbery,
was four years, and doubled that term to eight years as the second strike sentence. In
doing so, the trial court mistakenly cited the midterm for first degree robbery. (§ 213,
subd. (a)(1).) It is undisputed, however, that defendant was convicted in count 1 of
second degree robbery, and the sentence range for that offense is two, three, or four
years. (§ 213, subd. (a)(2).) The minute order and abstract of judgment for the first
resentencing hearing correctly stated that defendant was sentenced to the midterm of
three years doubled to six years for second degree robbery.
As will be explained below, the trial court at both the second and third
resentencing hearings on remand imposed the same aggregate sentence of 18 years eight
months. In the reporter’s transcripts, the trial court correctly stated the midterm for
second degree robbery was three years, doubled to six years as the second strike term for
count 1; the same sentence was recited in the minute orders and abstracts of judgment.
Conflicts between the reporter’s and clerk’s transcripts are generally presumed to
be clerical in nature and are resolved in favor of the reporter’s transcript unless the
particular circumstances dictate otherwise. (People v. Cleveland (2004) 32 Cal.4th 704,
768; People v. Smith (1983) 33 Cal.3d 596, 599.) In this situation, we would have
deemed the minute order and abstract of judgment to prevail over the reporter’s transcript
from the first resentencing hearing. (People v. Cleveland, supra, 32 Cal.4th 704, 768;
People v. Thompson (2009) 180 Cal.App.4th 974, 978.)
For purposes of this appeal, however, the trial court’s erroneous statement in the
reporter’s transcript for the first resentencing hearing was no longer relevant once this
court vacated the judgment on appeal in Byrd II, and remanded the matter for the second
resentencing hearing, later followed by the third resentencing hearing, where the trial
court imposed the midterm of three years for second degree robbery, doubled to six years.
8.
and he believed the home invasion was coordinated by defendant’s girlfriend and
defendant’s accomplice who committed the robbery against him.
The trial court again sentenced defendant to the second strike determinate term of
18 years eight months. “As it had done previously, the court struck the two prior serious
felony enhancements and one of the strike priors, but declined to strike the
section 12022.53 firearm enhancement. In deciding to impose the midterm three-year
sentence for the robbery offense, the court found the following aggravating factors: the
robbery was a crime of violence that indicated a serious danger to society, a 2012
burglary conviction (which was stricken as a strike but still considered for aggravation)
involved an occupied dwelling, defendant was on parole during the commission of the
two recent felonies, defendant had unsatisfactory performances while on parole, and
defendant had a criminal history that began as a juvenile and reflected numerous
convictions of increasing seriousness. In mitigation, the court noted defendant’s behavior
and positive programming while incarcerated.”
After the trial court made these findings, defense counsel said defendant was
confused that his sentence was not reduced. Defendant again addressed the court and
stated that he successfully attended programs in prison, rehabilitated himself, and was no
longer a threat to society.
The trial court replied it could not “ignore the fact that you picked up a residential
burglary when you were a juvenile, as soon as you turned an adult you picked up another
residential burglary, while still on parole for that you picked up another residential
burglary, and then while still on parole for that, you picked up this case, which is a
robbery and a burglary. That string of convictions – I’m not saying what you’re doing
isn’t significant and has seriously reduced your sentence, but I can’t completely ignore
those. That’s why we’re still where we’re at.”
9.
Appeal from Second Resentencing Hearing
On appeal from the second resentencing hearing, defendant requested remand for
the trial court to consider whether to reduce or dismiss the firearm enhancement based on
McDavid, supra, 15 Cal.5th 1015, which the Supreme Court decided after the second
resentencing hearing.
In Byrd III, supra, F087189, this court agreed the matter should again be
remanded. We explained that at the time of defendant’s appeal after the first
resentencing hearing, “there was a split among the courts of appeal over whether trial
courts had the ability and discretion to impose an uncharged lesser included firearm
offense outside of section 12022.53 after the trial court strikes, pursuant to
section 12022.53, subdivision (h), a charged and proved section 12022.53 firearm
enhancement.”
After the second resentencing hearing, McDavid was decided and resolved the
issue. It held that “when a court has exercised its discretion under [section 12022.53,]
subdivision (h) to strike a section 12022.53 [firearm] enhancement and finds that no other
section 12022.53 enhancement is appropriate, the second sentence of subdivision (j) is
inapplicable and does not bar the court from imposing a lesser included, uncharged
enhancement under a law other than section 12022.53.” (McDavid, supra, 15 Cal.5th at
p. 1030, italics added.)
Byrd III held that when the trial court conducted the second resentencing hearing,
it was “unaware of its ability and discretion to impose an uncharged lesser included
firearm enhancement from a statute other than section 12022.53, as explained by
McDavid. Indeed, the People expressly concede that the court was unaware of the scope
of its discretion.” The record did not clearly indicate the trial court would have imposed
the same sentence if it had been aware of its discretion, and it was necessary to remand
for a third resentencing hearing “to permit the trial court to resentence defendant in light
10.
of the clarifications of law announced in McDavid, supra, 15 Cal.5th 1015 regarding
firearm enhancements.”
THE THIRD RESENTENCING HEARING
Defendant’s current appeal is from the third resentencing hearing. Prior to that
hearing, defense counsel filed a brief that argued the trial court should reduce the firearm
enhancement because of defendant’s positive behavior in prison.
On March 14, 2025, defendant, acting in propria persona, filed his own “motion”
for the trial court to reduce the section 12022.53 firearm enhancement, with documentary
exhibits about his childhood trauma, programming, and accomplishments in prison.
On May 2, 2025, the trial court conducted the third resentencing hearing. The
court stated it read defense counsel’s briefing. Over the prosecutor’s objection, the court
stated it would look at the pleadings and documents that defendant personally filed.
Oscar F., the victim of the burglary, appeared and said defendant’s sentence had
been reduced enough, and defendant should serve the maximum sentence because he was
a menace to society and tried to kill him.
The trial court stated it would not exercise its discretion to dismiss the
section 12022.53, subdivision (b) firearm enhancement, or reduce it to a lesser included
uncharged firearm enhancement, and again sentenced defendant to the second strike
determinate term of 18 years eight months.
The trial court stated defendant’s sentence had been substantially reduced from the
original third strike term of 50 years to life plus 30 years, to the determinate term of
18 years eight months. The court reduced defendant’s sentence because of both changes
to California law, and the recognition that defendant made significant steps in prison to
try to improve himself.
The trial court stated it was not going to strike or reduce the firearm enhancement
because defendant’s use of the firearm in the commission of the robbery “was extremely
11.
serious and egregious.” “Where we’re at is far as I’m willing to go as far as any
reductions to the sentence. I don’t believe it would be appropriate for the [c]ourt to
modify or strike the firearm enhancement. So the sentence is remaining as currently set.
I’m not making any modifications to the sentence, and that is with full awareness of the
[c]ourt’s discretion as it relates to the firearm enhancement.”
DISCUSSION
As noted above, appellate counsel filed a Wende brief with this court. The brief
also includes counsel’s declaration that defendant was advised he could file his own brief
with this court. In response to this court’s notice, defendant filed an eight-page
supplemental letter brief.7 We address his contentions.
I. The Trial Court’s Decision Not to Dismiss the Firearm Enhancement
In his supplemental letter brief, defendant raises several challenges to the trial
court’s ruling on the firearm enhancement at the third resentencing hearing.
A. Personal Use of a Firearm
Defendant asserts the section 12022.53, subdivision (b) enhancement for personal
use of a firearm in the commission of the robbery should have been dismissed or reduced
because he never fired the gun, the victim was not injured, and the gun was never found.
To the extent defendant is raising a substantial evidence issue, that is not
cognizable in this appeal from the third resentencing hearing. However, we briefly
address this contention. Section 12022.53, subdivision (b) states that an additional and
consecutive term of 10 years shall be imposed when a person “personally uses a firearm”
7 The first part of defendant’s eight-page supplemental letter brief is the same
“motion” that he filed with the trial court, in propria persona, prior to the third
resentencing hearing, with the original filing date of March 14, 2025, crossed out. The
second half of his letter brief appears to have been drafted after the third resentencing
hearing.
12.
in the commission of an enumerated felony, which includes robbery (subd. (a)(4)), and
the firearm “need not be operable or loaded” (subd. (b)).
In interpreting subdivision (b) of section 12022.53, “ ‘[w]hether a gun is ‘used’ in
the commission of an offense—‘at least as an aid’—is broadly construed within the
factual context of each case.’ ” (People v. Smit (2014) 224 Cal.App.4th 977, 988.)
“Personal use of a firearm may be found where the defendant intentionally displayed a
firearm in a menacing manner in order to facilitate the commission of an underlying
crime. [Citations.] [¶] ‘Thus when a defendant deliberately shows a gun, or otherwise
makes its presence known, and there is no evidence to suggest any purpose other than
intimidating the victim ... so as to successfully complete the underlying offense, the jury
is entitled to find a facilitative use rather than an incidental or inadvertent exposure.’ ”
(People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059.)
In this case, the jury found defendant was guilty of second-degree robbery with the
section 12022.53, subdivision (b) personal use enhancement, based on the trial evidence
that defendant pointed his gun at Oscar F., demanded his money and jewelry, and pulled
off his chain and rings and took his cell phone. (Byrd I, supra, F077681 at p. 4.)
Defendant’s conduct constituted personal use of his firearm in the commission of the
robbery as defined by subdivision (b).
B. Section 12022.53, Tirado, and McDavid
Defendant next states he did not understand the ruling in McDavid, and asserts
McDavid required the trial court to dismiss the 10-year enhancement for personal use of a
firearm under section 12022.53, subdivision (b), or impose the lesser term of four years
for personal use under section 12022.5, subdivision (a). Defendant argues the trial court
never considered mitigating circumstances including his childhood trauma, his positive
performance in prison, and that he was not currently dangerous.
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 (b)
13.
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 (c) mandates the imposition of a
20-year enhancement for personal and intentional discharge of a firearm; and
section 12022.53 (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.” (People v. Tirado (2022) 12 Cal.5th 688, 694–695 (Tirado),
fns. omitted.)
“Before January 1, 2018, section 12022.53 prohibited courts from striking its
enhancements. Former subdivision (h) of section 12022.53 provided: ‘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.’
[Citation.] Thus, if a section 12022.53 enhancement was alleged and found true, its
imposition was mandatory. [Citations.]” (Tirado, supra, 12 Cal.5th at p. 695.)
“In 2017, the Legislature enacted Senate Bill No. 620 [citation], amending
section 12022.53 (h) to remove this prohibition. [Citation.] Section 12022.53 (h) now
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.’ ” (Tirado, supra, 12 Cal.5th at p. 696.)
As a result, “[s]ection 12022.53, subdivision (h) … authorizes courts to strike
certain [firearm] enhancements in the interests of justice under the authority of section
1385.” (Tirado, supra, 12 Cal.5th at p. 692.) Tirado held this discretion includes striking
a section 12022.53 enhancement and then imposing a lesser included, uncharged
section 12022.53 enhancement when the facts supporting the lesser enhancement were
alleged and found true by the jury. (Tirado, supra, 12 Cal.5th at p. 692.)
McDavid extended Tirado to find “the same statutory framework permits a [trial]
court, after striking a section 12022.53 enhancement, to impose a lesser included,
uncharged enhancement authorized elsewhere in the Penal Code — that is, outside of
14.
section 12022.53.” (McDavid, supra, 15 Cal.5th at p. 1021.) When the trial court “has
exercised its discretion under subdivision (h) to strike a section 12022.53 enhancement
and finds that no other section 12022.53 enhancement is appropriate,” the trial court may
impose “a lesser included, uncharged enhancement under a law other than section
12022.53” if it is supported by facts that have been alleged and found true. (McDavid,
supra, 15 Cal.5th at p. 1030, italics added; Tirado, supra, 12 Cal.5th at p. 697.)
We review a trial court’s determination of whether to dismiss a firearm
enhancement or to impose a lesser included, uncharged enhancement for an abuse of
discretion. (People v. Gonzalez (2024) 103 Cal.App.5th 215, 225.) We will not disturb
the trial court’s ruling unless the court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that results in a manifest miscarriage of justice. (People v.
Williams (2013) 58 Cal.4th 197, 270–271.) “Defendants are entitled to sentencing
decisions made through the exercise of informed discretion. [Citation.] A court acting
while unaware of the full scope of its discretion is deemed to have abused it. [Citation.]”
(McDavid, supra, 15 Cal.5th at p. 1023.)
C. Analysis
At defendant’s original sentencing hearing, the trial court imposed an aggregate
third strike term of 50 years to life plus 30 years, which included 10 years for the
section 12022.53, subdivision (b) enhancement for personal use of a firearm. (Tirado,
supra, 12 Cal.5th at p. 695.) As this court noted in Byrd I, the trial court was not aware
that it had discretion to dismiss the firearm enhancement at the time of sentencing.
At the first resentencing hearing after the direct appeal, the trial court recognized
that it now had discretion to dismiss the firearm enhancement pursuant to
recently-enacted legislation, and that it could also dismiss the prior felony conviction
enhancements. (Tirado, supra, 12 Cal.5th at pp. 695–696.) At that hearing, the court
acknowledged defendant’s positive conduct in prison and his relative youth when he
committed the current convictions and dismissed one prior strike conviction and the two
15.
prior serious felony enhancements. However, the court stated that it would not dismiss
the firearm enhancement because “it could not ignore the facts and circumstances
surrounding defendant’s use of a firearm to commit the robbery.” The trial court also
rejected defense counsel’s request to impose a lesser included firearm enhancement based
on the statutory provisions and applicable law at that time.
At the second resentencing hearing, the trial court again rejected defendant’s
request to dismiss or reduce the firearm enhancement. The court recognized mitigating
circumstances of defendant’s positive behavior and programming in prison, but found
aggravating factors that the robbery was a crime of violence that indicated a serious
danger to society, his prior burglary conviction in 2012 involved an occupied dwelling,
defendant was on parole during the commission of the two recent felonies, defendant had
unsatisfactory performances while on parole, and defendant had a criminal history that
began as a juvenile and reflected numerous convictions of increasing seriousness. When
defendant complained the trial court did not dismiss the firearm enhancement, the court
explained that it could not “ignore the fact that you picked up a residential burglary when
you were a juvenile, as soon as you turned an adult you picked up another residential
burglary, while still on parole for that you picked up another residential burglary, and
then while still on parole for that, you picked up this case, which is a robbery and a
burglary. That string of convictions – I’m not saying what you’re doing isn’t significant
and has seriously reduced your sentence, but I can’t completely ignore those. That’s why
we’re still where we’re at.”
By the time of the third resentencing hearing, the trial court was aware of the
recent ruling in McDavid, and that it now had discretion either to dismiss the firearm
enhancement under Tirado or impose a lesser included, but uncharged, firearm
enhancement under McDavid. In making this determination, the trial court reviewed
defense counsel’s brief and, over the prosecutor’s objection, review the materials that
16.
defendant filed in propria persona, which included descriptions of his alleged childhood
trauma.
After reviewing these documents, the trial court stated it would not exercise its
discretion as to the firearm enhancement. The court stated it had already reduced
defendant’s sentence from an indeterminate third strike term of 50 years to life plus
30 years, to the determinate term of 18 years eight months. The court recognized
defendant had taken significant steps to improve himself in prison, but it would not
dismiss or reduce the firearm enhancement because defendant’s use of the firearm in the
commission of the robbery “was extremely serious and egregious.” “Where we’re at is
far as I’m willing to go as far as any reductions to the sentence. I don’t believe it would
be appropriate for the [c]ourt to modify or strike the firearm enhancement.”
Defendant asserts the trial court abused its discretion because it declined to reduce
his sentence “with no solid reason when it’s suppose[d] to be about humanity.” The
entirety of the record from the third resentencing hearing shows the trial court was aware
of the full extent of its discretion under Tirado and McDavid and explained the reasons
why it would not dismiss or reduce the firearm enhancement. The court considered the
entirety of defendant’s mitigating circumstances when it dismissed one prior strike
conviction and both prior serious felony conviction enhancements, but it would not
dismiss or reduce the firearm enhancement, “with full awareness of the [c]ourt’s
discretion as it relates to the firearm enhancement.”
II. Defendant’s Arguments About Other Sentencing Statutes
Also in his letter brief, defendant raises additional issues based on other
sentencing statutes.
A. The Court’s Imposition of the Second Strike Sentences.
Defendant claims the trial court imposed an illegal and unconstitutional sentence
when it doubled the terms imposed for count 1, robbery, and count 2, burglary. At the
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original sentencing hearing, the court found the two prior strike allegations true and
imposed two consecutive third strike terms of 25 years to life for each of counts 1 and 2.
At the first resentencing hearing, the trial court dismissed one prior strike
conviction along with the two prior felony conviction enhancements and thereafter
imposed an aggregate second strike determinate sentence based on three years doubled to
six years for count 1, robbery, and a consecutive term of eight months (one-third the
midterm) doubled to one year four months for count 2, burglary. The court did not
further reduce defendant’s sentence at the second and third resentencing hearings.
The trial court’s imposition of the second strike terms by doubling the sentences
for robbery and burglary was authorized by law and constitutional. (See, e.g., People v.
Nguyen (1999) 21 Cal.4th 197, 203-204.)
B. Section 1172.75
Next, defendant asserts he is entitled to another full resentencing hearing because
the trial court had a mandatory duty to dismiss the firearm enhancement and impose a
lesser sentence under section “1172.75.”
Section 1172.75 only applies to resentencing hearings which are required when a
defendant’s sentence includes certain prior prison term enhancements that were imposed
pursuant to section 667.5, subdivision (b), and are no longer valid. (People v. Burgess
(2022) 86 Cal.App.5th 375, 380.)
Defendant is ineligible for resentencing under section 1172.75 because the trial
court never sentenced him to any prior prison term enhancement, it dismissed these
enhancements at his original sentencing hearing, and it did not reimpose them at the
subsequent resentencing hearings.
C. Assembly Bill No. 2483
Finally, defendant asserts he is “the perfect candidate” for resentencing under
“AB 2483.” “Effective January 1, 2025, Assembly Bill [No.] 2483 enacted section 1171,
which sets forth various procedures under subdivision (c) that apply to all postconviction
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proceedings to modify a sentence or conviction under ameliorative statutes, including
section 1172.1. [Citations.] Section 1171 explicitly states that the procedures set forth in
subdivision (c) do not apply where ‘there is a conflict with a more specific rule
established in statute, in which case the more specific statute shall apply.’ [Citation.]”
(People v. Brinson (2025) 112 Cal.App.5th 1040, 1047.)
Section 1171, subdivision (c) states that at a postconviction hearing, the trial court
must appoint counsel, consider relevant circumstances that have arisen since the prior
sentence was imposed, it has jurisdiction to modify every aspect of defendant’s sentence,
and it shall state on the record the reasons for its decision. Defendant received all these
procedural safeguards at his first, second, and third resentencing hearings.
After independent review of the record, we find no reasonably arguable factual or
legal issues exist.
DISPOSITION
The trial court’s judgment at the third resentencing hearing on May 2, 2025,
sentencing defendant to 18 years eight months in prison, is affirmed.
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