Filed 10/6/26 P. v. Carrillo CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G064873
v. (Super. Ct. No. 19CF1341)
VICTOR ERICK CARRILLO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Michael J. Cassidy, Judge. Reversed and remanded with instructions.
David P. Lampkin, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Arlene A. Sevidal, Assistant
Attorney General, Christopher Beesley and Daniel Rogers, Deputy Attorneys
General, for Plaintiff and Respondent.
* * *
Victor Erick Carrillo appeals the sentence imposed on his
convictions for attempted murder and related offenses in connection with a
drive-by assault on a bicyclist in Santa Ana. Because of his age at the time of
the offense, the trial court stayed the 20-year firearm enhancement to be
imposed under Penal Code1 section 12022.53, subdivision (c), and instead
imposed a 10-year enhancement under section 12022.5, subdivision (a).
Carrillo argues the court erred by staying, rather than striking, the 20-year
enhancement.
We agree and hold that, pursuant to section 12022.53,
subdivision (f), the court lacked authority to stay the longer enhancement
under section 654, rather than striking it under section 1385, subdivision (c).
We reverse the sentence as unauthorized by law, and remand for the limited
purpose of striking the section 12022.53, subdivision (c) enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
We do not summarize the underlying facts of the case because
they are not relevant to the analysis of this appeal. By way of the operative
information filed September 10, 2024, Carrillo was charged with willful,
deliberate, premeditated attempted murder (count one) (Pen. Code, §§ 664,
subd. (a), 187, subd. (a)); assault with a semiautomatic firearm (count two)
(Pen. Code, § 245, subd. (b)); evading while driving recklessly (count three)
(Veh. Code, § 2800.2); carrying a loaded firearm in public with a prior
1 All undesignated statutory references are to the Penal Code.
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conviction (count four) (Pen. Code, § 25850, subds. (a), (c)(5)); and carrying a
concealed firearm as a person with a prior conviction (count five) (Pen. Code,
§ 25400, subds. (a)(2), (c)(5)).
The following enhancements were charged. In connection with all
counts, Carrillo was alleged to have been released on bail when he committed
the crime (§ 12022.1, subd. (b).) Respecting count one only, he was alleged to
have intentionally and personally discharged a firearm under section
12022.53, subdivision (c). Respecting counts one and two, he was alleged to
have personally used a firearm in the commission of the offense under section
12022.5, subdivision (a). Multiple aggravating factors were also alleged in
connection with all counts, including prior convictions and violent conduct.
(See Cal. Rules of Court, rule 4.421(a), (b).)
A jury convicted Carrillo on all counts. As to count one, the jury
made true findings on the two firearm enhancements and the allegation that
the attempted murder charged was willful, deliberate, and premeditated.
Carrillo’s counsel submitted a sentencing brief, pointing out his
difficult upbringing and learning challenges that may have contributed to his
interaction with the justice system. Carillo’s counsel asked the court to
sentence him to the low term on count two as a youthful offender. The
prosecution submitted its own sentencing brief, seeking a total sentence of
seven years to life, plus 20 years and eight months on all counts.
At sentencing, the trial court struck the section 12022.1,
subdivision (b) enhancement under section 1385.2 The court found “the
2 Section 1385, subdivision (c)(1), states: “Notwithstanding any
other law, the court shall dismiss an enhancement if it is in the furtherance
of justice to do so, except if dismissal of that enhancement is prohibited by
3
factors in aggravation far exceed any factors in mitigation,” and that “[t]he
main factor in mitigation where the defendant is concerned is the fact that he
is young when these offenses occurred.” Based on Carrillo’s conduct in the
case, the court sentenced him to seven years to life on count one and stayed
the sentences on counts two through five pursuant to section 654.3
As to the firearm enhancements, the court said the following:
“[B]ased upon his youth at the time, as far as the gun use is concerned, if I
were to impose [section] 12022.53[,subdivision ](c) that would definitely be a
sentence of more than 20 years. So I’m going to choose to sentence him on
[section] 12022.5[,subdivision ](a). Based on the factors in aggravation, I will
choose the upper term of ten years. [¶] And as far as [section] 12022.53[,
subdivision ](c), I will stay that pursuant to [section] 654.” The court imposed
a total term of seven years to life, plus 10 years under section 12022.5,
subdivision (a).
Carrillo timely appealed.
DISCUSSION
Carrillo’s argument on appeal focuses on his sentence.
Specifically, he contends the trial court erred in staying, rather than striking,
the 20-year enhancement. He is correct.
any initiative statute.” The case on which Carrillo was out on bail had not yet
been resolved at the time of sentencing.
3 Section 654, subdivision (a), states: “An act or omission that is
punishable in different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or omission be
punished under more than one provision. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under
any other.”
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I.
STANDARD OF REVIEW
“In general, we review for abuse of discretion the trial court's
decision not to strike a sentence enhancement under section 1385,
subdivision (a).” (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.)
However, the trial court purported to stay the 20-year
enhancement pursuant to section 654. People v. Corpening (2016) 2 Cal.5th
307, 312, provides, “At step one, courts examine the facts of the case to
determine whether multiple convictions are based upon a single physical act.
[Citation.] When those facts are undisputed—as they are here—the
application of section 654 raises a question of law we review de novo.” In
People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), the California Supreme
Court found that section 654 did not apply to whether the trial court properly
stayed the punishment for the firearm enhancement at issue in that case.
(Gonzalez, p. 1123, fn. 5.) The court stated, “Although the trial court correctly
stayed all of the prohibited firearm enhancements, it incorrectly issued those
stays under section 654, which applies only to offenses punishable in
different ways, not to prohibited enhancements committed in the commission
of an unstayed offense.” (Gonzalez, p. 1123, fn. 5.) Thus, the issue we resolve
is one of statutory interpretation regarding the trial court’s interpretation of
its authority to impose, stay, or strike firearm enhancements under sections
12022.53, subdivision (c), 12022.5, subdivision (a), and 1385.
We note the Attorney General does not contend that it was error
not to impose the punishment under section 12022.53, subdivision (c),
because that enhancement provided the greater punishment. The Attorney
General also does not assert that the trial court lacked discretion to dismiss
the section 12022.53, subdivision (c) enhancement under section 1385. The
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parties do not dispute that the jury returned true findings as to both the
section 12022.53, subdivision (c) and section 12022.5, subdivision (a)
enhancements as they attached to count one. Thus, the application of sections
654, 1385, 12022.53, subdivision (c), and 12022.5, subdivision (a), raises
questions of law which we review de novo.
II.
INVITED ERROR AND WAIVER
The Attorney General argues Carrillo invited the claimed error
by failing to ask the trial court to strike the section 12022.53, subdivision (c)
enhancement under section 1385, and by failing to object to the court’s
decision to stay the section 12022.53, subdivision (c) enhancement. “‘The
doctrine of invited error is designed to prevent an accused from gaining a
reversal on appeal because of an error made by the trial court at his behest. If
defense counsel intentionally caused the trial court to err, the appellant
cannot be heard to complain on appeal. . . . [I]t also must be clear that
counsel acted for tactical reasons and not out of ignorance or mistake.’ In
cases involving an action affirmatively taken by defense counsel, we have
found a clearly implied tactical purpose to be sufficient to invoke the invited
error rule.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
Here, Carrillo’s counsel asked the trial court to “stay sentencing
on the firearm enhancements since they are an element of Count 2.” As
Carrillo notes in his reply brief, this was because he was seeking to be
sentenced on count two, and not on count one. Count two was assault with a
firearm. The trial court clearly did not adopt this approach because it
sentenced Carrillo on count one. We do not find invited error because there is
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no indication counsel invoked section 654 as a deliberate tactical choice in
connection with count one.4
The Attorney General next argues that Carrillo forfeited any
objection to the trial court staying the 20-year enhancement because he did
not ask the court to strike it under section 1385. It is true that “‘any failure
on the part of a defendant to invite the court to dismiss under section
1385 . . . waives or forfeits his right to raise the issue on appeal.’” (People v.
Coleman (2024) 98 Cal.App.5th 709, 724.)
But the record suggests the trial court had section 1385 in mind
when it declined to impose the 20-year enhancement. While the court
purported to stay the enhancement under section 654, its stated reasoning
was that imposing the enhancement “would definitely be a sentence of more
than 20 years.” Under section 1385, subdivision (c)(2), the court is to
“consider and afford great weight to evidence” of mitigating circumstances in
determining whether to strike an enhancement. One of those mitigating
circumstances is if “[t]he application of an enhancement could result in a
sentence of over 20 years. In this instance, the enhancement shall be
dismissed.” (Id., subd. (c)(2)(C).) We presume “‘the court “knows and applies
the correct statutory and case law,”’” and that it knows of statutory
provisions even if does not specifically mention them. (See People v.
Caparrotta (2024) 103 Cal.App.5th 874, 905, disapproved on another ground
4 To the contrary, counsel appears to have been mistaken in
seeking a stay of the firearm enhancement as to count two. Section 12022.5,
subdivision (d), requires a trial court to impose “the additional term provided
by [section 12022.5] for any violation of Section 245 if a firearm is used . . . .”
Thus, section 12022.5, subdivision (d), prohibits a stay of such an
enhancement as to count two because it was a violation of section 245
involving use of a firearm.
7
in People v. SanMiguel (2026) 20 Cal.5th 254, 288, fn. 7.) Here, the trial court
explicitly referenced section 1385 when it struck Carrillo’s bail enhancement.
It is reasonable to infer the trial court was aware of section 1385,
subdivision (c)(2)(C), when it paraphrased that subdivision in staying the
section 12022.53, subdivision (c) enhancement, specifically stating, “if I were
to impose [section] 12022.53[, subdivision ](c) that would definitely be a
sentence of more than 20 years.” It is thus reasonable to conclude the trial
court was implicating its authority under section 1385, subdivision (c)(2)(C),
when it chose to stay the section 12022.53, subdivision (c) enhancement, and
the issue was not forfeited.
III.
THE SENTENCE IMPOSED WAS UNAUTHORIZED
“It is well settled . . . that the court acts in ‘excess of its
jurisdiction’ and imposes an ‘unauthorized’ sentence when it erroneously
stays or fails to stay execution of a sentence under section 654.” (People v.
Scott (1994) 9 Cal.4th 331, 354, fn. 17.) “When two or more enhancements
may be imposed for being armed with or using a dangerous or deadly weapon
or a firearm in the commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense.” (§ 1170.1, subd. (f).)
Here, two such enhancements were pleaded and proven. Under
section 12022.53, “a person who, in the commission of a felony specified in
subdivision (a), personally and intentionally discharges a firearm, shall be
punished by an additional and consecutive term of imprisonment in the state
prison for 20 years.” (Id., subd. (c).) Attempted murder is one of the
enumerated felonies to which the enhancement may apply. (Id., subd. (a)(1),
(18).) Section 12022.5, subdivision (a), provides that “any person who
personally uses a firearm in the commission of a felony or attempted felony
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shall be punished by an additional and consecutive term of imprisonment in
the state prison for 3, 4, or 10 years, unless use of a firearm is an element of
that offense.” Both enhancements were alleged in connection with count one
and found to be true.
“Only one additional term of imprisonment under [section
12022.53] shall be imposed per person for each crime. If more than one
enhancement per person is found true under [section 12022.53], the court
shall impose upon that person the enhancement that provides the longest
term of imprisonment.” (§ 12022.53, subd. (f).) “An enhancement involving a
firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person
in addition to an enhancement imposed pursuant to [section 12022.53].”
(§ 12022.53, subd. (f).)
“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 [section 12022.53].” (§ 12022.53,
subd. (h), italics added.) Additionally, section 12022.53, subdivision (j),
provides that its stated enhancements are to be imposed “rather than
imposing punishment authorized under any other law, unless another
enhancement provides for a greater penalty or a longer term of
imprisonment.” (Ibid.)
The court chose to sentence Carrillo on count one. The 20-year
enhancement under section 12022.53, subdivision (c), provided the longer
term of imprisonment. Only after imposing the “punishment for the section
12022.53 firearm enhancement with the longest term of imprisonment [may]
the remaining section 12022.53 firearm enhancements and any section
12022.5 firearm enhancements that were found true for the same
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crime . . . be imposed and then stayed.” (Gonzalez, supra, 43 Cal.4th at
pp. 1122–1123.)
This means lesser enhancements can be imposed and stayed; not
that the longest enhancement can be stayed in favor of a lesser enhancement.
To allow a stay of the longer enhancement and the imposition of a lesser
would undermine section 12022.53’s objective of “ensur[ing] that defendants
who use a gun remain in prison for the longest time possible.” (Gonzalez,
supra, 43 Cal.4th at p. 1129.)
As discussed earlier, the Attorney General does not argue that
the longer enhancement should have been imposed and executed. It is
reasonable to infer from the trial court’s statements that the court was aware
of its discretion under section 1385, subdivision (c)(2)(C). The court
paraphrased this section when it stated, “if I were to impose [section]
12022.53[, subdivision ](c) that would definitely be a sentence of more than
20 years.” The trial court’s statements and its sentencing choices show that it
did not intend to impose the section 12022.53, subdivision (c) enhancement.
If the trial court did not wish to impose the longer enhancement
because of the mitigating circumstance listed in section 1385,
subdivision (c)(2)(C), it had to strike the longer enhancement under
section 1385 first, and then impose the remaining enhancement with the
longest term of imprisonment—in this case, the section 12022.5,
subdivision (a) enhancement.5 Thus, section 12022.53, subdivision (h),
section 1385, subdivision (c)(2)(A), and Gonzalez required the court to strike
5 We recognize this issue was not raised before the trial court or
brought to its attention, but “under the unauthorized sentence rule, a party
does not forfeit the right to argue that a sentence is unlawful by failing to
object in the trial court.” (People v. King (2022) 77 Cal.App.5th 629, 635.)
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the section 12022.53, subdivision (c) enhancement rather than stay it. We
therefore reverse the judgment and remand the case to the trial court for a
resentencing in order to strike the section 12022.53, subdivision (c)
enhancement.
DISPOSITION
The judgment is reversed, and the case is remanded for a
resentencing in accordance with this opinion. In all other aspects, the
judgment is affirmed.
SCHWARM, J.*
WE CONCUR:
MOTOIKE, P. J.
SCOTT, J.
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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