Filed 11/4/22 P. v. King CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

PAUVEY JUANE KING,

Defendant and Appellant.

 D079419

 (Super. Ct. No. FVI19001037)

APPEAL from a judgment of the Superior Court of San Bernardino, 

Debra Harris, Judge. Affirmed.

Patricia A. Scott, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Charles C. Ragland, Assistant Attorney General, 

Collette C. Cavalier, Warren J. Williams, and Eric A. Swenson, Deputy 

Attorneys General, for Plaintiff and Respondent.
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A jury convicted Pauvey Juane King of one count of murder (Pen. 

Code,1 §§ 187, subd. (a) & 189, subd. (a) [victim M.S.]); and two counts of 

attempted murder (§§ 664, subd. (a), 187, subd. (a), & 189, subd. (a); [victims 

T.T. and A.S.]). The jury also found true multiple charged firearm 

enhancements as to each offense. In April 2021, the trial court sentenced 

King on the three substantive offenses and imposed the most severe firearm 

enhancement found true for each count. The court stayed the remaining 

firearm enhancements. 

On appeal, King contends that the case must be remanded for 

resentencing because the court was not aware of its discretion to impose the

less severe firearm enhancements under People v. Tirado (2022) 12 Cal.5th 

688 (Tirado), which was decided after King’s sentencing and held that a court 

may strike a section 12022.53 firearm enhancement and impose a lesser 

uncharged section 12022.53 enhancement. The People argue, among other 

things, that King forfeited the issue. We conclude that while King did not 

forfeit his opportunity to challenge the imposition of firearm enhancements, 

remand is unwarranted. The court was aware of its discretion to impose less 

severe firearm enhancements because, unlike in Tirado, those lesser 

enhancements were charged in the information as to each individual count, 

the jury found each of them to be true, and the court expressly stayed the 

lesser enhancements in favor of imposing the most severe enhancement for 

each count. Accordingly, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

The three victims, two brothers (A.S. and M.S.) and their friend (T.T.), 

went to a house party in Victorville, California, on the night of April 5, 2013.

A.S. was 13 years old at the time, and his brother M.S. and T.T. were both 17 

1 All further undesignated statutory references are to the Penal Code.
3

years old. After a fight broke out between the victims and other individuals

at the party, the victims ran outside and got into M.S.’s car. Before M.S. 

could drive away, King and Brian McCaleb, who were also at the party, came 

out and opened fire into the vehicle from close range. 

M.S. yelled that he had been hit and the car lurched forward until it 

jumped a curb, hit a fire hydrant, and eventually came to a stop in a nearby 

residence’s backyard. A.S. exited the vehicle to assist his brother, using his 

shirt to try and cover his brother’s wounds. M.S. later succumbed to his 

injuries, which included gunshot wounds to his left eye and chest. 

King’s account of that night shifted over the course of his interviews

with law enforcement. He ultimately told detectives that the fight inside the 

house started when one of the victims allegedly made threatening remarks to 

someone at the party who King and McCaleb were affiliated with. After the 

victims ran from the house and got into their car, McCaleb fired shots into 

the vehicle and King joined in the shooting soon after. King said that he

opened fire because he heard about the threatening remarks, but he had not 

met M.S. before and did not know his name. 

After the shooting, King and McCaleb got into another car and went to 

a friend’s apartment where they discussed what happened. According to a

witness who was present in the apartment, King talked about shooting at the 

victims and said about one of them, “Bro’s gone.” 

The People charged King by information with three counts: firstdegree murder as to M.S. in count one (§§ 187, subd. (a) & 189, subd. (a)), 

attempted murder as to T.T. in count two (§§ 664, subd. (a), 187, subd. (a), & 

189, subd. (a)), and attempted murder as to A.S. in count three (ibid.). The 

People also charged the following firearm enhancements: as to count one

only, personal and intentional discharge of a firearm, proximately causing 
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great bodily injury or death (§ 12022.53, subd. (d)); as to all counts, 

personally and intentionally discharging a firearm (§ 12022.53, subd. (c)); and 

as to all counts, personally using a firearm (§§ 12022.5, subd. (a) & 12022.53, 

subd. (b)).2

A jury found King guilty on all three counts, and it also found each of 

the charged firearm enhancements to be true. For the murder charged in 

count one, the jury found true each of the charged firearm enhancements 

under sections 12022.53, subdivisions (b), (c), and (d), and 12022.5, 

subdivision (a). For each of the other two counts, the jury found true each of 

the charged firearm enhancements under sections 12022.53, subdivisions (b) 

and (c) and 12022.5, subdivision (a). 

At sentencing, the court stated its tentative decision was to adopt the 

probation report’s recommendations, which included imposing the most 

severe firearm enhancement charged and found true for each count and 

staying the lesser firearm enhancements charged and found true for each 

count. King’s attorney said that he “wanted to emphasize the . . . new laws 

that indicate” the court “has discretion” regarding the firearm enhancements. 

The court invited King’s attorney to make arguments “[r]egarding judicial 

discretion as far as the gun enhancement and any other information you’d 

like for me to hear . . . .” 

King’s attorney stated: “As to the gun enhancement, I know the Court 

is aware of the law and I just was reminding the Court that since this 

probation officer’s report, there has [sic] been changes in the law giving the 

2 The firearm enhancements carry the following additional sentences, to 

be served consecutive to any sentence for the underlying substantive offense:

for section 12022.5, subdivision (a), three, four, or 10 years; for section 

12022.53, subdivision (b), 10 years; for section 12022.53, subdivision (c), 20 

years; and for section 12022.53, subdivision (d), 25 years to life.
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judges discretion, as it should, especially in youthful offenders, to consider 

not imposing all of those excessive enhancements.” The prosecutor argued in 

response that the enhancements “as to each count . . . were found true by a 

unanimous jury” and that circumstances in the case “warrant the imposition 

of the enhancements as recommended in the probation report.” The 

prosecutor stated that those aggravating circumstances included, among 

other things, that King and McCaleb did not just brandish firearms and point 

them at the victims, they “each pulled the trigger” multiple times as the 

victims were trying to leave. The prosecutor further stated: “So while the 

Court does have discretion with regard to the imposition of the personal use 

enhancements, the facts and circumstances of this case warrant the 

imposition of those enhancements as recommended by probation.” 

Before imposing the sentence, the court noted “[t]here’s been an appeal 

for the discretion to be used regarding the gun enhancement.” The court 

observed, however, that King had expressed little regret about how his 

actions “changed the lives of other people[]” like the victim’s family. The 

court also noted that “the nature and circumstances of the crime were very 

serious” as compared with other similar crimes. When considering 

aggravating factors, the court found that the crime “involved great violence, 

great bodily harm, threat of great bodily harm, and [a] high degree of 

cruelty.” The court further found that King “engaged in violent conduct that 

indicates a serious danger to society.”

Regarding mitigation, the court stated that King’s lack of criminal 

history “cuts both ways” because he seemed to have a supportive family who 

presumably “taught [him] how he should behave in society,” but the court

acknowledged that his conviction and imprisonment would “seriously affect 

[King’s] life.” The court found no mitigating facts relating to the crime itself. 
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The court ultimately sentenced King in accordance with the probation 

report’s recommendations: for count one, 25 years to life, plus 25 years to life 

for the firearm enhancement under section 12022.53, subdivision (d); and as 

to each of counts two and three, 7 years to life, plus 20 years to life for the 

firearm enhancement under section 12022.53, subdivision (c). The court 

imposed and stayed the lesser remaining firearm enhancements. Because 

the sentences for all counts were consecutive, King’s total sentence was an 

aggregate indeterminate term of 104 years to life. 

King timely appealed. 

DISCUSSION

King argues on appeal that the case must be remanded for 

resentencing because the trial court did not consider whether it could impose 

less severe firearm enhancements. More specifically, King argues it is 

unclear whether the court knew it had discretion to impose reduced firearm 

enhancements, as opposed to believing it had only the binary choice under 

section 12022.53, subdivision (h), of imposing the most severe enhancements 

or striking enhancements entirely.3 He contends that at the time of his 

sentencing, the law was unsettled regarding a court’s discretion to impose an 

uncharged lesser-included firearm enhancement, but the Supreme Court

subsequently decided in Tirado, supra, 12 Cal.5th 688, that courts do have 

that discretion, and the case should therefore be remanded in light of that 

3 Section 12022.53, subdivision (h), provides in relevant part: “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.” 

Section 1385, subdivision (c)(1) provides that: “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 

any initiative statute.”
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decision. (See id. at pp. 696–697 [citing cases on either side of split in 

authority].)

The People argue in response that King forfeited his challenge because 

he did not ask the trial court to modify the firearm enhancements. According 

to the People, defense counsel in this case could have requested lesser firearm 

enhancements because even though there was a split in authority before 

Tirado was decided, case law existed that would have supported King’s 

request. (See, e.g., People v. Morrison (2019) 34 Cal.App.5th 217, 222–223 

(Morrison) [trial court can impose lesser uncharged enhancement after 

striking more severe enhancement].) The People further argue that even if 

the issue is not forfeited, the trial court was aware of its discretion, and the 

record shows the court would not have imposed a lesser enhancement. 

We conclude that King has not forfeited his challenge because his 

attorney specifically asked the trial court to use its discretion to “consider not 

imposing all of those excessive enhancements.” The prosecutor also conceded 

that the court “does have discretion with regard to the imposition of the 

personal use enhancements . . . .” The court expressly acknowledged its 

discretion and heard arguments from both sides regarding the issue. Finally, 

in imposing sentence, the court recognized King’s “appeal for . . . discretion to 

be used regarding the gun enhancement[,]” but ultimately concluded that the 

sentence it imposed, which included the most severe enhancements, was

“about justice for the act that was committed.” Accordingly, the issue of the 

court’s discretion regarding firearm enhancements was properly raised before 

the trial court and King has not forfeited the claim.

However, King’s challenge is without merit. Both parties overlook the 

dispositive fact here that, unlike in Tirado and Morrison, King was actually 

charged with the lesser-included firearm enhancements for each count, along 
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with the more severe enhancements. By contrast, the issue in Tirado and 

Morrison was whether a court may strike a firearm enhancement and instead 

impose a lesser uncharged firearm enhancement. (See Tirado, supra, 12 

Cal.5th at p. 696 [“The question is whether the court can strike the section 

12022.53(d) enhancement and, in its place, impose a lesser enhancement . . . 

even if the lesser enhancements were not specifically charged in the 

information or found true by the jury.” (Italics added.)]; Morrison, supra, 34

Cal.App.5th at pp. 224–225 [whether court has discretion to impose 

uncharged lesser firearm enhancements “only arises in cases where those 

enhancements have not been charged in the alternative and found true”

(Italics added.)].) The jury here found all of the charged firearm 

enhancements to be true, and the trial court expressly stayed the lesser 

enhancements in favor of imposing the greatest enhancement for each count,

after explaining its reasons for doing so. 

This is not a case where the court may have thought it only had a 

binary choice under section 12022.53, subdivision (h), to either strike the 

most severe enhancements or impose none of them. Even before the Supreme 

Court’s decision in Tirado, under sections 1385 and 12022.53, subdivisions 

(h) and (j), courts had discretion to strike more severe enhancements and 

impose lesser enhancements “alleged in the accusatory pleading and . . .

found to be true by the trier of fact.” (§ 12022.53, subd. (j); see, e.g., Morrison,

supra, 34 Cal.App.5th at p. 222 [recognizing that striking more severe 

enhancements pursuant to section 1385 still leaves intact any remaining 

lesser enhancements found by jury].) The record reflects that the trial court 

was aware of this discretion and declined to exercise it. Even King concedes 

it is “safe to conclude” the court was aware of its discretion to strike the 

firearm enhancements. Thus, the court knew that, for each count, it had a 
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choice to strike the most severe firearm enhancement and instead impose 

only one of the lesser firearm enhancements charged and found true by the 

jury. Instead, the court knowingly made a discretionary choice to impose the 

most severe firearm enhancement for each count and stay all the lesser 

firearm enhancements. King has not argued that the court abused its 

discretion in making this sentencing choice. Accordingly, we must affirm the 

trial court’s judgment.

DISPOSITION

The judgment is affirmed. 

BUCHANAN, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.