P. v. Moreno

Filed 12/27/18 P. v. Moreno CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
FREDDY MORENO,
Defendant and Appellant.
B285783
(Los Angeles County
Super. Ct. No. NA091859)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Gary J. Ferrari, Judge. Affirmed in part and
remanded with directions.
Joy A. Maulitz, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Margaret E. Maxwell and Marc A. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________

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Nineteen-year-old gang member Freddy Moreno shot into a
crowd at a party, wounding three people. A jury convicted him of
three counts of attempted premeditated murder as charged
(Pen. Code, §§ 187, 664)1 and one count of attempted voluntary
manslaughter as a lesser included offense of attempted murder
(§§ 192, 664). It found firearm use and gang enhancements to be
true. (§§ 186.22, subd. (b); 12022.5; 12022.53, subds. (b)–(d).)
After Moreno admitted he had suffered a strike for a prior
juvenile robbery adjudication when he was 16 years old, the trial
court sentenced him to 165 years to life. Had the trial court
stricken the prior juvenile adjudication as Moreno requested
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero), he theoretically would have been sentenced to 120
years to life.
Moreno contends that both his age at the time of his
current crimes (19) and his age at the time of his prior strike
adjudication (16) render his sentence cruel and unusual
punishment pursuant to recent cases and statutory changes
concerning lengthy sentences for juvenile offenders. He also
contends his sentence violates due process and his right to a jury
trial by enhancing his adult sentence with a juvenile
adjudication. Finally, he contends the trial court abused its
discretion in denying his Romero motion to strike his juvenile
prior. We reject his contentions. We correct aspects of his
sentence and remand for resentencing pursuant to newly enacted
sections 12022.5, subdivision (c) and 12022.53, subdivision (h),
which grant the trial court discretion to strike firearm
enhancements. In all other respects, we affirm.
1 All undesignated statutory citations refer to the Penal
Code.

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FACTUAL BACKGROUND
Moreno was a self-admitted Rancho San Pedro (RSP) gang
member. On March 18, 2012, he attended a house party in Los
Angeles County. He was asked to leave, and he exited the house
with his friends. A verbal confrontation broke out between him
and Nestor Reyes. Moreno pulled a handgun. He shot twice in
the air, and then at a group of people. Bullets struck Eddie
Olmos, Bryant Gomez, and Michael Sena. Olmos was hit in the
cheek, Gomez was hit in the back of his thigh, and Sena was hit
in both thighs, one of which entered through the back of his
thigh.
The party was held in RSP territory, and before firing,
appellant asked Reyes what gang he was from. Based on a
hypothetical tracking the facts of the case, the prosecution’s gang
expert testified that the shooting was gang-related.
Moreno testified in his defense. He admitted joining RSP
in 2005 when he was 12 years old and admitted he had
committed a robbery as a juvenile at some time before the
current crimes.
He brought a loaded gun to the party because he was
“trying to get there safe,” although he had never “handled” a gun
before and did not like guns. He went to the party to see friends
who were hosting it. He was only there about 10 minutes when
someone wearing a shirt reading “security” directed him to leave
and refused to allow him to speak to his friends. The man was
holding something that looked like a black metal baton. Moreno
agreed to leave and exited the party, using profanity on the way
out.

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An intoxicated man reacted angrily and approached
Moreno as if he wanted to fight. The intoxicated man, the man in
the security shirt, and a few others followed Moreno out of the
house. People started changing “fight, fight,” and Moreno was
scared he was going to get “jumped.” As he walked on the
sidewalk, he saw a group of eight to 12 men coming up behind
him. Moreno displayed the gun and fired two warning shots into
the air. The men continued to approach him, and the intoxicated
man started swinging at him, so he fired around ten times. He
hit Olmos, Gomez, and Sena (twice), but missed the intoxicated
man and the man in the security shirt.
Moreno claimed that he aimed at the ground, and he called
the shooting an “accident.” He was scared and did not mean to
shoot the victims. He ran away and threw the gun in a sewer so
it would not be found.
Crystal Cardona testified that the party was for her 18th
birthday. She grew up with Moreno and considered him to be
like a brother. She said he was at the party for maybe an hour.
She remembered Eduardo Gomez (victim Bryant Gomez’s
brother) was wearing a security shirt and had a flashlight, and
she remembered a man being drunk.
Crystal’s brother Victor Cardona also attended the party.
He had invited Moreno and considered Moreno to be like a
brother. Although Victor was familiar with RSP, he did not know
at the time that Moreno was a gang member. Victor also testified
Moreno was at the party for hours before the shooting. Victor
testified that Eduardo was wearing a shirt with the word
“security” on it and was carrying a flashlight.
In the People’s rebuttal, Eduardo Gomez testified that he
was not wearing a shirt with the word “security” on it, even

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though Crystal identified him as wearing it. He saw Moreno at
the party but denied telling him to leave, and Eduardo did not get
involved in the argument between Moreno and Reyes. Eduardo
acknowledged that at one point during the party he borrowed a
small flashlight to help look for a lost wallet. He also testified
that Moreno was with a group of men who were “kind of like
gangster looking.”
An officer testified that, to his knowledge, no one reported
seeing a large flashlight or seeing anyone other than Reyes
arguing with Moreno.
DISCUSSION
I. Moreno’s Sentence Was Constitutional
A. Procedural Background
Moreno was sentenced to 165 years to life, consisting of
three consecutive terms of 55 years to life on each of the three
attempted murder counts: three base terms of 15 years to life,
doubled to 30 years due to his prior juvenile strike, plus
consecutive terms of 25 years to life on each count for his
personal discharge of a firearm causing great bodily injury
pursuant to section 12022.53 subdivision (d). He was sentenced
to 21 years on the attempted voluntary manslaughter count to
run concurrently.2
Moreno received his prior juvenile strike adjudication for
robbery in 2009 (§ 211), when he was 16 years old, after he
robbed an individual on the street and issued a gang-related
challenge. He had other juvenile adjudications, including a gang-
related assault with a deadly weapon in 2008 (§ 245, subd. (a)(1)),
2 As we will explain, the term of 21 years for count 4 was
statutorily unauthorized and resentencing is necessary on that
count.

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minor in possession of an alcoholic beverage in 2009 (Bus. & Prof.
Code, § 25662, subd. (a)), and gang-related exhibiting an
imitation firearm and resisting an officer in 2010 (§§ 417.4; 148,
subd. (a)(1)).
At the sentencing hearing, defense counsel requested that
the trial court strike the prior juvenile robbery adjudication
pursuant to Romero. He cited Moreno’s age of 16 at the time of
the prior offense, the lengthy sentence Moreno would face
without the strike, and the fact that the jury found Moreno guilty
of the lesser offense of voluntary manslaughter on one count.
Defense counsel added, “The other consideration, which is not a
traditional factor but because of changes in the law since Prop 57,
is that one of the things that youthful offenders can participate in
state prison based on their ultimate sentence is what kind of
programming and rehabilitative programs Mr. Moreno might
avail himself to.” He added, “I’m hoping that based on the lesser
sentence that Mr. Moreno might avail himself to certain
rehabilitative programs that are available in the Department of
Corrections. And I think that striking the strike makes him
available for some of those programs, if not all of those
programs.”
The prosecutor opposed the request based on Moreno’s
criminal history and the nature of the instant crimes. With
regard to Moreno’s age, the prosecutor argued, “I know counsel
has referred to the youth of Mr. Moreno. But I think at this point
California law has built in protections and considerations that
allow for Mr. Moreno to have those considerations be taken into
account, that’s been built in in the last few years based on the
changes in California law.”

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The court denied the request to strike the prior pursuant to
Romero. It explained: “The juvenile prior for robbery, it was in
2009 and this crime occurred in 2012, that’s a very, very short
period of time. These are serious charges, there were serious
injuries, it’s gang-related. I don’t really think that based upon
the facts and circumstances of this case that the defendant is
entitled to any particular consideration for leniency.”
B. Moreno’s Sentence Does Not Violate the Eighth
Amendment or the California Constitution
Moreno argues his sentence of 165 years to life violates the
state and federal constitutional bans on cruel and/or unusual
punishments due to his age at the time of the prior adjudication
and his current crimes.3 Respondent contends Moreno forfeited
this challenge by failing to object on this ground in the trial court.
It is true that “[a] claim that a sentence is cruel or unusual
usually requires a ‘fact specific’ inquiry and is forfeited if not
raised below.” (People v. Baker (2018) 20 Cal.App.5th 711, 720
(Baker).) Moreno contends he preserved the issue by moving to
strike his prior juvenile adjudication pursuant to Romero and,
alternatively, we should exercise our discretion to decide the
issue. We need not address these contentions because he also
argues that, if the contention is forfeited, his counsel was
ineffective for failing to object in the trial court. We must
therefore address the merits in any event “ ‘to show counsel was
not constitutionally ineffective by failing to make a futile or
meritless objection.’ ” (Baker, supra, at p. 720.)
3 Moreno does not separately argue his state constitutional
claim, so we will resolve it in the same way we resolve his federal
constitutional claim.

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In recent years, the United States Supreme Court has
circumscribed the range of possible sentences for juvenile
offenders under the Eighth Amendment prohibition against cruel
and unusual punishments. Under these cases, “(1) no individual
may be executed for an offense committed when he or she was a
juvenile (Roper[ v. Simmons (2005) 543 U.S. 551, 578 (Roper)]);
(2) no juvenile who commits a nonhomicide offense may be
sentenced to [life without parole] (Graham[ v. Florida (2010) 560
U.S. 48, 74 (Graham)]; and (3) no juvenile who commits a
homicide offense may be automatically sentenced to [life without
parole] (Miller[ v. Alabama (2012) 567 U.S. 460, 476–477
(Miller)].” (People v. Franklin (2016) 63 Cal.4th 261, 273–274
(Franklin).) These cases were based on the observation that
“children are ‘constitutionally different . . . for purposes of
sentencing.’ ” (Id. at p. 274.)
The California Supreme Court has extended these cases to
lengthy juvenile sentences, including sentences that are the
functional equivalent of life without parole. (See People v.
Contreras (2018) 4 Cal.5th 349, 367 (Contreras) [50-years-to-life
and 58-years-to-life sentences for juvenile non-homicide offenders
unconstitutional under Graham]; Franklin, supra, 63 Cal.4th at
p. 276 [Miller applies to functional equivalent of life without
parole for juvenile homicide offender]; People v. Caballero (2012)
55 Cal.4th 262, 268–269 (Caballero) [110-years-to-life sentence
for juvenile non-homicide offender violated Graham].)
We reject Moreno’s suggestion that this reasoning applies
to his current offenses, which he committed when he was 19
years old. A line has been drawn at the age of 18 to separate
juveniles from adults for Eighth Amendment purposes.
(See Graham, supra, 560 U.S. at pp. 74–75 [drawing line at age of

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18 for life without parole for nonhomicide crimes]; Roper, supra,
543 U.S. at p. 574 [“The age of 18 is the point where society
draws the line for many purposes between childhood and
adulthood. It is, we conclude, the age at which the line for death
eligibility ought to rest.”]; see also Contreras, supra, 4 Cal.5th at
p. 371 [Graham drew “clear line” at age 18 for juvenile and adult
offenders]; People v. Gutierrez (2014) 58 Cal.4th 1354, 1380
(Gutierrez) [U.S. Supreme Court has drawn line at 18 years old in
Eighth Amendment jurisprudence].) We decline to redraw that
line to encompass Moreno’s current crimes. (See People v.
Windfield (2016) 3 Cal.App.5th 739, 766 [refusing to extend
Miller to defendant who was 18 years old at time of crime], rev.
granted S238073 (Jan. 11, 2017); People v. Argeta (2012) 210
Cal.App.4th 1478, 1482 [refusing to apply Graham, Miller, and
Caballero to defendant who was 18 years and five months old at
time of crime].)
Moreno goes a step further to argue that his sentence was
unconstitutional under this line of cases because it was enhanced
by a prior juvenile offense committed when he was 16 years old.
At first glance, his argument appears to have no practical impact
on his sentence. With the prior juvenile strike, his 165-years-to-
life sentence extended beyond his natural life expectancy and was
unquestionably the functional equivalent of life without parole.
(See Caballero, supra, 55 Cal.4th at pp. 268–269.) Without the
strike, he could have been sentenced to 120 years to life, which
was still the functional equivalent of life without parole. (Ibid.)
However, without the strike, he would be eligible for parole
consideration after serving 25 years pursuant to newly enacted
statutory provisions providing parole eligibility for offenders who
committed their crimes at the age of 25 or younger. (§ 3051,

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subd. (b)(3) [“A person who was convicted of a controlling offense
that was committed when the person was 25 years of age or
younger and for which the sentence is a life term of 25 years to
life shall be eligible for release on parole by the board during his
or her 25th year of incarceration at a youth offender parole
hearing, unless previously released or entitled to an earlier
parole consideration hearing pursuant to other statutory
provisions.”].) He would also be eligible for parole under the
recently enacted Elderly Parole Program when he is 60 years old
and has served at least 25 years of continuous incarceration.
(§ 3055, subd. (a).) Defendants like Moreno with prior strikes,
however, are statutorily excluded from these parole provisions.
(§ 3051, subd. (h); § 3055, subd. (g).)
Moreno argues that the reasoning in Graham should apply
to his adult sentence enhanced by his juvenile strike. Graham
held that “the Eighth Amendment requires the state to afford the
juvenile offender a ‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation,’ and that ‘[a]
life without parole sentence improperly denies the juvenile
offender a chance to demonstrate growth and maturity.’
(Graham, supra, 560 U.S. at p. [73, 130 S.Ct. at pp. 2029–2030].)
The court observed that a life without parole sentence is
particularly harsh for a juvenile offender who ‘will on average
serve more years and a greater percentage of his life in prison
than an adult offender.’ (Id. at p. [70, 130 S.Ct. at p. 2028].)
Graham likened a life without parole sentence for nonhomicide
offenders to the death penalty itself, given their youth and the
prospect that, as the years progress, juveniles can reform their
deficiencies and become contributing members of society. (Ibid.)”
(Caballero, supra, 55 Cal.4th at p. 266.)

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Stated differently, “[w]hat emerges from Graham is not a
constitutional prohibition on harsh sentences for juveniles who
commit serious crimes. (Graham, supra, 560 U.S. at p. 71,
[‘Society is entitled to impose severe sanctions on a juvenile
nonhomicide offender to express its condemnation of the crime
and to seek restoration of the moral imbalance caused by the
offense.’].) Nor does Graham ‘require the State to release
[a juvenile nonhomicide] offender during his natural life. Those
who commit truly horrifying crimes as juveniles may turn out to
be irredeemable, and thus deserving of incarceration for the
duration of their lives.’ (Id. at p. 75.) But Graham ‘does prohibit
States from making the judgment at the outset that those
offenders never will be fit to reenter society.’ (Ibid.) ‘What the
state must do . . . is give defendants like Graham some
meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.’ (Ibid.)” (Contreras, supra, 4
Cal.5th at p. 367.)
The U.S. Supreme Court in Miller reiterated these concerns
in finding mandatory sentences of life without parole for juvenile
homicide offenders constituted cruel and unusual punishment.
The court explained: “Roper and Graham establish that children
are constitutionally different from adults for purposes of
sentencing. Because juveniles have diminished culpability and
greater prospects for reform, we explained, ‘they are less
deserving of the most severe punishments.’ [Citation.] Those
cases relied on three significant gaps between juveniles and
adults. First, children have a ‘ “lack of maturity and an
underdeveloped sense of responsibility,” ’ leading to recklessness,
impulsivity, and heedless risk-taking. [Citation.] Second,
children ‘are more vulnerable . . . to negative influences and

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outside pressures,’ including from their family and peers; they
have limited ‘contro[l] over their own environment’ and lack the
ability to extricate themselves from horrific, crime-producing
settings. [Citation.] And third, a child’s character is not as ‘well
formed’ as an adult’s; his traits are ‘less fixed’ and his actions less
likely to ‘evidence of irretrievabl[e] deprav[ity].’ [Citation.]
“Our decisions rested not only on common sense—on what
‘any parent knows’—but on science and social science as well.
[Citation.] In Roper, we cited studies showing that ‘ “[o]nly a
relatively small portion of adolescents” ’ who engage in illegal
activity ‘ “develop entrenched patterns of problem behavior.” ’
[Citation.] And in Graham, we noted that ‘developments in
psychology and brain science continue to show fundamental
differences between juvenile and adult minds’—for example, in
‘parts of the brain involved in behavior control.’ [Citation.]
We reasoned that those findings—of transient rashness,
proclivity for risk, and inability to assess consequences—both
lessened a child’s ‘moral culpability’ and enhanced the prospect
that, as the years go by and neurological development occurs, his
‘ “deficiencies will be reformed.” ’ [Citation.]
“Roper and Graham emphasized that the distinctive
attributes of youth diminished the penological justifications for
imposing the harshest sentences on juvenile offenders, even when
they commit terrible crimes. Because ‘ “[t]he heart of the
retribution rationale” ’ related to offender’s blameworthiness,
‘ “the case for retribution is not as strong with a minor as with an
adult.” ’ [Citations.] Nor can deterrence do the work in this
context, because ‘ “the same characteristics that render juveniles
less culpable than adults” ’—their immaturity, recklessness, and
impetuosity—make them less likely to consider potential

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punishment. [Citation.] Similarly, incapacitation could not
support the life-without-parole sentence in Graham: Deciding
that a ‘juvenile offender forever will be a danger to society’ would
require ‘mak[ing] a judgment that [he] is incorrigible’—but
‘ “incorrigibility is inconsistent with youth.” ’ [Citation.] And for
the same reason, rehabilitation could not justify that sentence.
Life without parole ‘forswears altogether the rehabilitative ideal.’
[Citation.] It reflects ‘an irrevocable judgment about [an
offender’s] value and place in society,’ at odds with a child’s
capacity for change. [Citation.]” (Miller, supra, 567 U.S. at pp.
471–473, fn. omitted.)
Moreno’s sentence as an adult recidivist does not implicate
these concerns related to the characteristics of youth. Unlike in
Graham and Miller, Moreno does not contend he was improperly
punished for the crime he actually committed as a juvenile, that
is, the robbery when he was 16 years old. Indeed, his juvenile
adjudication was consistent with Graham and other cases, given
the primary goal was rehabilitation. (Cf. In re Julian R. (2009)
47 Cal.4th 487, 496 (Julian R.) [“Juvenile proceedings continue to
be primarily rehabilitative, disallowing punishment in the form
of retribution.”].) When Moreno continued his criminal activity
into adulthood, he showed that rehabilitation failed and he did
not change in order to reenter society as a law-abiding citizen.
In other words, his juvenile prior “demonstrate[d] that [he] did
not respond to the state’s attempt at early intervention to prevent
a descent into further criminality.” (People v. Nguyen (2009)
46 Cal.4th 1007, 1024 (Nguyen).)
Graham, Miller, Caballero, and Contreras all rest on the
assumption that the deficiencies of juvenile offenders are not
fixed and their punishment must allow for a chance to show they

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have changed their criminal ways. Moreno had that chance, and
he reoffended as an adult. He was therefore “punished not just
for [his] current offense but for [his] recidivism. Recidivism in
the commission of multiple felonies poses a danger to society
justifying the imposition of longer sentences for subsequent
offenses.” (People v. Cooper (1996) 43 Cal.App.4th 815, 823–824.)
His adult sentence therefore falls outside the concerns about
juvenile offenders expressed in Graham, Miller, and other cases,
so his enhanced sentence as an adult repeat offender was not
cruel and unusual under the Eighth Amendment.
C. Moreno’s Sentence Does Not Violate Due Process or
His Right to a Jury Trial
Moreno contends the trial court’s use of a prior juvenile
strike to enhance his sentence violates due process and his right
to a jury trial under the Sixth Amendment. The California
Supreme Court has rejected this claim. (Nguyen, supra, 46
Cal.4th at p. 1024.) We are bound by that decision and likewise
reject his argument.
II. The Trial Court Did Not Abuse Its Discretion in
Denying Moreno’s Romero Motion and Defense
Counsel Was Not Ineffective
In deciding whether to strike a prior conviction, a trial
court must consider “whether, in light of the nature and
circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (People v. Williams (1998)

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17 Cal.4th 148, 161.) We review the court’s decision for abuse of
discretion. (Id. at p. 162.)
Moreno has not shown the trial court abused its discretion
in refusing to strike his juvenile prior. Moreno committed a
string of gang-related crimes, including his juvenile robbery
adjudication, culminating in the shooting at issue here. He
brought a loaded gun to a party and opened fire on a crowd,
wounding three unarmed people. He shot one victim in the face
and the other two victims in the backs of their legs, suggesting
they were running away from him. It is frankly remarkable that
no one was killed. Moreno’s criminal history and the
circumstances of the crime adequately supported the trial court’s
decision not to strike his juvenile prior conviction.
Moreno contends his trial counsel performed deficiently in
arguing the Romero motion because he “should have known” that
striking the juvenile prior would have made Moreno eligible for
parole after 25 years pursuant to section 3051, subdivision (b)(3)
or at age 60 pursuant to section 3055, subdivision (a). Moreno
also contends, “[i]f trial counsel had been familiar with” the
parole statute, he could have responded to the prosecutor’s
“inaccurate” assertion in response to his Romero motion that “at
this point California law has built in protections and
considerations that allow for Mr. Moreno to have those
considerations be taken into account, that’s been built in in the
last few years based on the changes in California law.”
Whether or not his counsel performed deficiently in these
respects, Moreno has not established that he suffered any
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 692,
697.) There is nothing in the record to show the trial court
misunderstood the law or would have stricken Moreno’s juvenile

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prior if defense counsel has explicitly pointed out his eligibility
for parole. “Absent evidence to the contrary, we presume that the
trial court knew and applied the governing law.” (Gutierrez,
supra, 58 Cal.4th at p. 1390; see Julian R., supra, 47 Cal.4th at
p. 499.) We therefore presume the trial court was aware of
Moreno’s potential parole eligibility without the strike but
concluded his criminal history and the violent circumstances of
his current crimes justified his enhanced sentence under the
three strikes law. The presumption is not undermined by the
prosecutor’s ambiguous comment that Moreno enjoyed
unidentified “built in protections” under the law. Moreno
therefore suffered no prejudice from any alleged deficiencies in
his counsel’s performance.
III. Moreno Must Be Resentenced on the Attempted
Voluntary Manslaughter Count
For count 4, Moreno was convicted of attempted voluntary
manslaughter in violation of section 192, subdivision (a), and
section 664. The jury also found true a firearm enhancement
pursuant to section 12022.5 and a gang enhancement pursuant to
section 186.22, subdivision (b)(1)(c). The court orally sentenced
him to a concurrent term of 21 years, comprised of a base term of
six years, doubled to 12 years due to his strike, plus four years for
the firearm enhancement and five years for the gang
enhancement.
The parties agree that the trial court incorrectly imposed
the base term for voluntary manslaughter, not attempted
voluntary manslaughter, which is one-half of the statutory term
for the completed offense. (§ 664, subd. (a).) The sentencing triad
for voluntary manslaughter is three, six, and 11 years (§ 193,
subd. (a)), so the applicable triad for attempted voluntary

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manslaughter is 18 months, three years, and five years six
months. Moreno suggests we simply correct the sentence to
15 years by imposing the middle term of three years as the base
term. Respondent suggests we remand for resentencing since we
are already remanding for resentencing on the firearm
enhancements, as discussed below. We will follow respondent’s
suggestion and remand for resentencing so the court may
reconsider Moreno’s sentence on count 4 within the proper
statutory framework for attempted voluntary manslaughter.
Furthermore, the abstract of judgment incorrectly states
that Moreno was convicted in count 4 for “PC 664/187
ATTEMPTED WILLFUL DELIBERATE AND PREMED
MURDER,” when he was convicted of attempted voluntary
manslaughter. We will order the abstract of judgment corrected
accordingly.
IV. Moreno’s Case Must Be Remanded for Resentencing
on the Firearm Enhancements
Moreno seeks remand for resentencing in light of Senate
Bill 620, effective January 1, 2018, which amended sections
12022.5, subdivision (c) and 12022.53, subdivision (h) to give the
trial court discretion whether to strike previously mandatory
firearm enhancements. (§ 12022.5, subd. (c) [“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 this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant
to any other law.”]; § 12022.53, subd. (h) [same].)
The discretion to strike a firearm enhancement may be
exercised as to any defendant whose conviction is not final as of
the effective date of the amendment. (See In re Estrada (1965) 63

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Cal.2d 740, 742–748; People v. Brown (2012) 54 Cal.4th 314, 323.)
Because Moreno’s conviction was not final when Senate Bill No.
620 went into effect, respondent agrees that remand is proper, as
do we. (See People v. Vieira (2005) 35 Cal.4th 264, 305 [“a
defendant generally is entitled to benefit from amendments that
become effective while his case is on appeal”]; People v. Smith
(2015) 234 Cal.App.4th 1460, 1465 [“[a] judgment becomes final
when the availability of an appeal and the time for filing a
petition for certiorari have expired”]; see also Bell v. Maryland
(1964) 378 U.S. 226, 230 [“[t]he rule applies to any such
[criminal] proceeding which, at the time of the supervening
legislation, has not yet reached final disposition in the highest
court authorized to review it”].)
On remand, the court may exercise its discretion under
section 12022.53, subdivision (h), to strike all of the firearm
enhancements under that provision or impose any one of the
enhancements. If the court chooses to impose a firearm
enhancement, it must strike any enhancement(s) providing a
longer term of imprisonment, and impose and stay any
enhancement(s) providing a lesser term. (§ 12022.53, subds. (f) &
(h).) For example, the court may choose to impose the 25-year-to-
life enhancement under section 12022.53, subdivision (d). If so, it
should impose and stay the enhancements under section
12022.53, subdivisions (c) and (b). If the court imposes the 20-
year enhancement under section 12022.53, subdivision (c), it
must then strike the 25-year-to-life enhancement under section
12022.53, subdivision (d), and impose and stay the 10-year
enhancement under subdivision (b). Moreover, any enhancement
imposed under section 12022.53 must be imposed consecutively
rather than concurrently.

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In addition, the trial court has discretion to strike only the
punishment for the enhancement. (§ 1385, subdivision (a); In re
Pacheco (2007) 155 Cal.App.4th 1439, 1443–1446.) “In
determining whether to strike the entire enhancement or only
the punishment for the enhancement, the court may consider the
effect that striking the enhancement would have on the status of
the crime as a strike, the accurate reflection of the defendant’s
criminal conduct on his or her record, the effect it may have on
the award of custody credits, and any other relevant
consideration.” (Cal. Rules of Court, rule 4.428(b).)
DISPOSITION
The matter is remanded for resentencing on the attempted
voluntary manslaughter count and for the trial court to consider
striking the firearm enhancements. (§§ 12022.5, subd. (c);
12022.53, subd. (h).) Following resentencing, the court shall
issue an amended abstract of judgment that corrects the offense
in count 4 as attempted voluntary manslaughter. (§§ 192, 664.)
The court shall forward the amended and corrected abstract of
judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
BIGELOW, P.J.
I concur:
GRIMES, J.

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People v. Moreno - B285783
Rubin, J., concurring and dissenting.
I concur with the majority’s rationale, but would remand
for resentencing in the entirety, specifically, to allow defendant to
pursue a renewed motion pursuant to People v Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero) to strike his prior
juvenile adjudication within the meaning of the Three Strikes
law.
At issue in this case is the potential applicability of Penal
Code section 3051, which provides for youth offender parole
hearings for offenders who were 25 years of age or younger at the
time of their offenses. Pursuant to the statute, the eligibility
date for a parole hearing depends on the longest term of
imprisonment imposed for an offense or enhancement. As
currently sentenced, defendant’s longest term of imprisonment is
the 25-years-to-life firearm enhancement (Pen. Code, § 12022.53,
subd. (d)), which would enable defendant to be considered for
parole during his 25th year of incarceration. (Pen. Code, § 3051,
subd. (b)(3)). However, as defendant was sentenced pursuant to
the Three Strikes law for his prior juvenile adjudication, he is not
eligible for any youthful parole eligibility hearing. (Pen. Code,
§ 3051, subd. (h).)
Neither counsel truly focused argument on this issue
during argument on the Romero motion. Defendant’s counsel
suggested that if the motion were granted, defendant might be
eligible for certain rehabilitative programming in prison, which
would be unavailable to him if the strike remained, but did not
specifically call attention to the possibility of a youth offender
parole hearing. The prosecutor, in response, did not specifically

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2
address Penal Code section 3051 either, but did state, with
respect to defendant’s youth, “I think at this point California law
has built-in protections and considerations that allow for
[defendant] to have those considerations be taken into account,
that’s been built in in the last few years based on the changes in
California law.” To the extent this statement was meant to refer
to youth offender parole hearings, it left the incorrect impression
that “protections and considerations” would apply even if the
Romero motion were denied – which is, in fact, not the case.
I agree with the majority that defendant’s attorney’s failure
to properly respond to the prosecutor’s statement does not
constitute reversible ineffective assistance. I also agree that we
presume the court was aware of the contours and applicability of
the statute – particularly when the trial court was as experienced
and knowledgeable about criminal matters as the court was in
this case. I simply believe that, as we are remanding for the
court to consider whether to exercise its new discretion to strike
the firearm enhancements, and to resentence on the attempted
voluntary manslaughter count, the better practice would be to
allow the court to also reconsider the Romero motion, expressly in
light of the importance of the motion to defendant’s future parole
eligibility and the limited presentations of counsel.
RUBIN, J.*
* Presiding Justice of the Court of Appeal, Second Appellate
District, Division Five, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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