Filed 1/5/21 P. v. Smith CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID JACOB SMITH,

Defendant and Appellant.

 B304928

 (Los Angeles County

 Super. Ct. No. NA098545)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Mark C. Kim, Judge. Affirmed.

Ava Stralla, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Marc A. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

After affirming appellant David Smith’s murder and 

assault convictions, we remanded his case so the trial court could 

exercise its discretion to retain or strike a firearm enhancement 

under Penal Code section 12022.53, subdivision (h).1 At the 

resentencing hearing, the trial court declined to strike the section 

12022.53, subdivision (d) enhancement, leaving appellant’s 

aggregate sentence of 40 years to life unchanged. 

Appellant contends the trial court abused its discretion not 

by failing to strike the enhancement, but by failing to consider 

imposing instead a lesser enhancement under section 12022.53, 

subdivisions (b) or (c). We agree with respondent Attorney 

General that appellant forfeited this claim by failing to bring the 

putative error to the trial court’s attention and affirm. 

BACKGROUND

The facts and procedural history underlying appellant’s 

convictions are set forth in our prior opinion, People v. Smith

(Jan. 8, 2019, B283278) [nonpub. opn.]. For purposes of this 

appeal, it is sufficient to state that appellant was convicted of 

second degree murder (§ 187) and assault with a firearm (§ 245, 

subd. (a)(2)) after he and his brother engaged in an altercation 

with two individuals on a public sidewalk. The parties 

exchanged words and blows before appellant pulled a gun and

fatally shot victim Christopher Lane twice in the back and once 

in the cheek. The jury rejected a gang enhancement (§ 186.22, 

subd. (b)(1)(C)) but found true an allegation that appellant or a 

principal personally and intentionally discharged a firearm, 

causing great bodily injury or death (§ 12022.53, subds. (d) & 

1All further statutory references are to the Penal Code 

unless otherwise indicated. 
3

(e)).2 The trial court sentenced appellant to a total term of 40 

years to life: 15 years to life for the murder, an additional 

consecutive 25 years to life for the firearm enhancement, and a 

concurrent three years for the assault. 

We affirmed appellant’s convictions on appeal. We agreed 

with the parties, however, that remand of the matter was 

necessary to permit the trial court to exercise its discretion under 

then-newly enacted section 12022.53, subdivision (h), which gave 

trial courts the discretion to strike section 12022.53 enhancement 

allegations. (See People v. Smith, supra.)

On remand, appellant filed a lengthy sentencing 

memorandum urging the trial court to dismiss or strike the 

section 12022.53, subdivision (d) enhancement. He argued that 

“mitigating factors, including that the decedent and the witness 

were the aggressors and/or provokers, the unusual circumstances 

surrounding the shooting, Mr. Smith [sic] conduct being partially 

excusable by the use of self-defense, his lack of a prior criminal 

record, his background, character and prospects substantially 

outweighed . . . any aggravating factors,”3 and the “relevant 

objectives of sentencing” would be served by “dismissing and/or 

striking the 12022.53 enhancements.” Appellant attached to his 

memorandum a 10-page biography, as well as exhibits including 

2The information also alleged firearm enhancements under 

section 12022.53, subdivisions (b) and (c). Both parties represent

that the more severe section 12022.53, subdivision (d) allegation 

was the only firearm enhancement allegation presented to the 

jury.

3As we noted in our previous opinion, the jury “rejected 

[appellant’s] theories of self-defense and defense of others.” 

(People v. Smith, supra.) 
4

photographs, certificates, transcripts, and letters from family and 

community members. 

The prosecution filed an opposing memorandum. It argued 

that appellant’s “background or social history” was not relevant 

to the resentencing inquiry, and that aggravating circumstances 

enumerated in the California Rules of Court warranted imposing 

the enhancement. 

The trial court heard the matter on February 18, 2020. 

During his argument, and in remarks appellant made directly to 

the court, appellant repeatedly asserted that the court should 

strike the section 12022.53, subdivision (d) enhancement. On two 

occasions, however, appellant suggested that the court had the 

discretion to “impose a sentence of 10- 20-, or 25-to-life” by 

invoking subdivisions (b) or (c) of section 12022.53 instead of 

subdivision (d). The prosecutor briefly argued that the 

circumstances of the case did not warrant “any type of leniency” 

before submitting on her written opposition. 

The court began its oral ruling by noting that the matter 

had been remanded “for the sole exercise of discretion under 

section 12022.53(h), . . .; that is, whether or not the court had 

discretion to strike the 12022.53(d) allegation that a firearm was 

used during the course of a homicide.” Therefore, it explained, it 

was not going to revisit disputed factual issues the parties had 

argued about, including “the issue of self-defense” and “whether 

or not Mr. Lane had a gun.” The court said that it was going to 

focus on “whether or not there are aggravating factors and 

whether or not there are mitigating factors, and when you 

balance it, whether or not the court should exercise it’s [sic] 

discretion to strike the firearm allegation.” 
5

The court found there were “sufficient aggravating factor[s] 

why the court should not strike the gun enhancement.” These 

included the great violence involved in the crime, appellant’s use 

of a firearm, and the victims’ vulnerability. The court stated that 

the victims “were just walking on the sidewalk, just like any one 

of us would do,” and “the male victim was especially vulnerable[, 

because] he had turned his back when he was shot twice in the 

back and once on his cheek.” The court remarked, “[t]hat does 

not tell this court that he [the victim] was actually the 

aggressor,” and added that it was not persuaded by appellant’s 

assertion that he was provoked into shooting the victim. “Based 

on those three grounds,” the court concluded it would “not 

exercise its discretion to strike the gun allegation.” Neither 

appellant nor the prosecutor objected, asked for any clarification 

of the ruling, or made further argument regarding section 

12022.53, subdivisions (b) and (c). The minute order 

documenting the hearing states in relevant part, “Court exercises 

its discretion in sentencing and previously imposed 25 years to 

life as to enhancement 12022.53(d) of the Penal Code to stand. 

Sentence of 40 years to life imposed on 6-12-2017 remains the 

same.” 

Appellant timely appealed. 

DISCUSSION 

Section 12022.53 contains three firearms enhancements of 

increasing severity that may be charged in connection with 

certain felonies. Section 12022.53, subdivision (b) provides for an 

additional and consecutive term of ten years where a defendant 

“personally uses a firearm” during the commission of a felony 

enumerated in section 12022.53, subdivision (a). (§ 12022.53, 

subd. (b).) Section 12022.53, subdivision (c) provides for an 
6

additional and consecutive term of 20 years where a defendant 

“personally and intentionally discharges a firearm” during the 

commission of a felony enumerated in section 12022.53, 

subdivision (a). (§ 12022.53, subd. (c).) Section 12022.53, 

subdivision (d), the most severe, provides for an additional and 

consecutive term of 25 years to life where a defendant “personally 

and intentionally discharges a firearm and proximately causes 

great bodily injury, as defined in Section 12022.7, or death, to any 

person other than an accomplice” during the commission of a 

felony enumerated in section 246, subdivision (a), or section 

26100, subdivisions (c) or (d). (§ 12022.53, subd. (d).) 

Section 12022.53, subdivision (h) provides that the trial 

court “may, in the interest of justice pursuant to Section 1385 

and at the time of sentencing, strike or dismiss an enhancement 

otherwise required to be imposed by this section.” (§ 12022.53, 

subd. (h).) There is no dispute that subdivision (h) authorizes the 

trial court to fully strike a firearm enhancement if justice so 

requires, or to fully impose it. Appellant contends that 

subdivision (h) gives the court discretion beyond this binary: 

rather than make the stark choice between imposing an 

enhancement of 25 years to life under subdivision (d) or no 

enhancement at all, he contends the court is authorized to impose

one of the lesser enhancements under subdivision (b) or (c) and 

must consider if doing so would be in the interests of justice. 

Because the trial court failed to expressly consider imposing one 

of the lesser enhancements here, he argues, it failed to appreciate 

the full scope of and therefore abused its discretion. (People v. 

Gutierrez (2014) 58 Cal.4th 1354, 1391.)

Failure to appreciate the scope of available discretion 

constitutes an abuse of discretion. (People v. Gutierrez, supra, 58 
7

Cal.4th at p. 1391.) Whether the trial court here operated under 

such a misapprehension is an open question, however. Currently 

pending before the Supreme Court in People v. Tirado (2019) 38 

Cal.App.5th 637, rev. granted Nov. 13, 2019 (S257658) (Tirado), 

is the question whether the trial court can “impose an 

enhancement under Penal Code section 12022.53, subdivision (b), 

for personal use of a firearm, or under section 12022.53, 

subdivision (c), for personal and intentional discharge of a 

firearm, as part of its authority under section 1385 and 

subdivision (h) to strike an enhancement under subdivision (d) 

for personal and intentional discharge of a firearm resulting in 

death or great bodily injury, even if the lesser enhancements 

were not charged in the information or indictment and were not 

submitted to the jury.” 

The appellate court in Tirado held that the trial court did 

not have the discretion to impose section 12022.53, subdivision 

(b) or (c) enhancements because the only enhancement charged 

and found true by the trier of fact was section 12022.53, 

subdivision (d). (Tirado, supra, 38 Cal.App.5th at pp. 640, 644.) 

Appellant acknowledges that “Tirado addressed the situation in 

appellant’s case,” to the extent that his jury did not consider or 

render findings regarding section 12022.53, subdivisions (b) or 

(c). He maintains, however, that remand is necessary because 

the trial court “said nothing about the lesser subdivision (c) or (b) 

enhancements” despite his two references to them during 

argument, and the court in People v. Morrison (2019) 34 

Cal.App.5th 217 remanded in such a situation. 

We agree with the Attorney General that the problem for 

appellant is that he also said nothing about section 12022.53, 

subdivision (b) or (c) when the trial court pronounced its ruling. 
8

“[C]omplaints about the manner in which the trial court exercises 

its sentencing discretion and articulates its supporting reasons 

cannot be raised for the first time on appeal.” (People v. Scott

(1994) 9 Cal.4th 331, 356; see also People v. Trujillo (2015) 60 

Cal.4th 850, 856.) Appellant did not raise any complaints about 

the trial court’s exercise of discretion below, and there is no 

indication in the record that such an objection would have been 

futile. The trial court overruled the prosecutor’s continuing 

objections to appellant’s extensive presentation regarding his 

personal background and permitted him to play a videotaped 

statement from his mother, indicating a willingness to entertain 

appellant’s theories and arguments. 

Appellant contends he did not forfeit the issue because 

“counsel twice argued the court could either strike the Penal 

Code subdivision (d) enhancement or impose one of the lesser 

firearm enhancements” during the resentencing hearing.4 We 

are not persuaded. Appellant requested that the court “strike the 

gun enhancement, either wholly or impose a 10- or 20-year 

sentence under the triad that is given to the court” but did not 

object or seek clarification when the court exercised its discretion

without addressing that aspect of his argument. “Had he timely 

and specifically objected below, the trial court presumably would 

have had an opportunity to correct, and could have corrected, any 

4Appellant also asserts that he “extensively present[ed] the 

defense position in [his] sentencing memorandum,” but did not 

provide a page citation beyond a range covering the entire 

memorandum and all of its exhibits. Our review of the 

memorandum and exhibits located only arguments to “dismiss or 

strike the 12022.53 enhancements” entirely, not to impose a 

subdivision (b) or (c) enhancement in lieu of the subdivision (d) 

enhancement. 
9

error” or oversight. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 

1372.) The “general rules concerning the presumption of 

regularity of judicial exercises of discretion apply to sentencing 

issues.” (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) In the 

absence of a timely objection from appellant, we apply those rules 

here. 

DISPOSITION 

Affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.