Thursday, May 16, 2019
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Court of Appeal Rejects Contention That Remand Would Be Pointless
Says Judge’s Observation That Sentence Was ‘Appropriate’ Does Not Signal Unwillingness To Strike Firearm Enhancement Upon Being Apprised of Discretion to Do So
By a MetNews Staff Writer
The Court of Appeal for this district yesterday rejected the contention by the Office of Attorney General that there was no point in returning a case to a judge who was apparently unaware at the time of sentencing that he had power under a newly enacted statute to strike a firearm enhancement because the jurist had commented that the aggregate sentence was “appropriate.”
Los Angeles Superior Court Judge John A. Torribio on April 12, 2018, sentenced a murderer, Manuel Anthony Garibay, to 50 years to life in prison. The sentence was comprised of 25 years to life for murder conviction plus 25 years to life based on firearm enhancement.
The judge said the sentence, as recommended by the prosecution, was “not only appropriate” but also “mandated by law.”
Change in Law
The judge was apparently unaware that under SB 620, Penal Code §12022.53 had been amended by 2017 legislation to provide, in ¶(h):
“The court may, in the interest of justice…and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.”
However, the Attorney General’s Office argued on appeal, a remand was pointless in light of Torribio’s remark that the sentence was “appropriate.”
Lui’s Opinion
Disagreeing, Presiding Justice Elwood Lui of Div. Two said in an opinion that was not certified for publication:
“The prosecutor’s memorandum contained no reference to the court’s discretion, and the court’s vague statement that the People’s sentencing recommendations were ‘appropriate’ is hardly an unambiguous statement of intent to impose the maximum sentence allowed regardless of any discretion to do otherwise. Given that the Legislature has expanded the field of ‘appropriate’ sentences under section 12022.53, the trial court’s characterization of the proposed sentence as ‘appropriate’ sheds no light whatsoever on how the court would have exercised discretion it plainly did not know it had.
“On this record, we cannot say that no reasonable court would strike the firearm enhancement, and we will not speculate as to how the trial court here might exercise its discretion. We therefore remand the matter to afford the trial court an opportunity to exercise its discretion to strike or impose the firearm enhancement in accordance with section 12022.53, subdivision (h).”
The case is People v. Garibay, B289440.
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