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Filed 7/23/21 P. v. Vezina CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL FLOYD VEZINA,

Defendant and Appellant.

 A159359

 (San Mateo County

 Super. Ct. No. SF397785A)

In this appeal from a resentencing proceeding, Daniel Floyd Vezina 

contends the trial court erred by declining to strike a 20-year firearm 

enhancement (Pen. Code, § 12022.53, subd. (c)).1 We disagree and affirm. 

BACKGROUND

In 2015, 16-year-old James C. was driving along Highway 1 near Half 

Moon Bay. His older brother, Russell, was in the passenger seat. Vezina 

1 Undesignated statutory references are to the Penal Code. We 

incorporate by reference our unpublished opinion in Vezina’s prior appeal, 

People v. Vezina (Aug. 16, 2017, A148691), reciting only those facts necessary 

to resolve the issue presented in this appeal. By separate order filed this 

date, we deny Vezina’s petition for writ of habeas corpus (case No. A160274).
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followed their car into a highway turnout, pointed a rifle at Russell, and fired

it. The bullet “whizz[ed]” by Russell’s head.

At the conclusion of a bench trial, the court found Vezina guilty of the 

attempted murder of Russell (§§ 187, subd. (a), 664) and found true an 

allegation that Vezina personally and intentionally discharged a firearm in 

the commission of that offense (§ 12022.53, subd. (c)). On the attempted 

murder charge, the court found “Vezina got out of his [car] in the turnout, 

went to his trunk, opened it, took out the rifle, placed it on the open trunk lid, 

used the sights, and fired in Russell’s direction. The court found Vezina 

intended to kill Russell. Missing the target was explained by intoxication, 

the moveable shooting platform, and the moving target.”

The court also found Vezina guilty of assault with a semiautomatic 

firearm on Russell (§ 245, subd. (b)) and found true an allegation that Vezina 

personally used a firearm in the commission of the offense (§ 12022.5, 

subd. (a)). Finally, the court found Vezina guilty of grossly negligent 

discharge of a firearm (§ 246.3, subd. (a)) and two misdemeanor counts of 

driving under the influence of alcohol (Veh. Code, § 23152, subds. (a), (b)).

In 2016, the court sentenced Vezina to 25 years in state prison, 

comprised of the low term of five years on the attempted murder conviction 

plus a mandatory consecutive 20-year term for personally and intentionally

discharging a firearm during the attempted murder (§ 12022.53, subd. (c)). It

imposed and stayed sentence on certain other convictions, including the

assault with a firearm conviction and the corresponding firearm 

enhancement (§ 12022.5, subd. (a)).

A.

Vezina appealed. He challenged the sufficiency of the evidence 

supporting the attempted murder conviction. We affirmed. (People v. Vezina,
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supra, A148691.) Later, the California Supreme Court remanded the case to 

the trial court for resentencing in light of Senate Bill No. 620 (2017–2018 

Reg. Sess.), which amended sections 12022.5 and 12022.53 to give trial courts 

discretion to strike firearm enhancements imposed under those sections in 

the interest of justice.

B.

When the case returned to the trial court, Vezina moved to represent 

himself (Faretta v. California (1975) 422 U.S. 806) and the court granted his 

request. Vezina asked the court to strike the firearm enhancements because 

he had no prior criminal record and had demonstrated “above average” 

behavior in prison. He also claimed the 20-year enhancement was 

“excessive,” particularly when attached to a crime he “did not commit.”

The prosecution urged the court to leave the 25-year prison sentence 

intact. It highlighted the numerous factors in aggravation, including 

Vezina’s dangerous, callous behavior. The prosecution argued Vezina was

a “dangerous and violent person” who committed “a random and 

unpredictable act of violence. He has expressed no remorse or regret, 

repeatedly denying culpability. This court can have no confidence that 

[Vezina] would not be a danger to the community should he be released 

sooner than the 25 years previously imposed. . . . [¶] He should be sentenced 

in accordance with the most severe penalty permissible to the court.”

The court denied Vezina’s request to strike the firearm enhancements. 

It began by reciting the relevant sentencing criteria enumerated in California 

Rules of Court, rules 4.410, 4.421, and 4.423. Then it noted the 

circumstances in aggravation: that Vezina “acted callously” by shooting at 

“the victim with an intent to kill” and that he failed “to express any regret or 

remorse.” It described Vezina’s behavior—training his loaded rifle and firing
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“on an unsuspecting young man for no discernable reason”—as 

“reprehensible.” Next, the court found the victim was unarmed and 

vulnerable. Balanced against these aggravating factors, the court found one 

mitigating factor: that Vezina had no prior record. The court concluded that

“in light of the nature and circumstances of the conduct at issue, all of the 

factors in aggravation and particulars of [Vezina’s] background,” striking the 

section 12022.53, subdivision (c) enhancement was not “appropriate.”

The court sentenced Vezina to 25 years in state prison.

DISCUSSION

Vezina’s sole claim on appeal is that the court abused its discretion by 

declining to strike the section 12022.53 firearm enhancement. We are not 

persuaded.

As relevant here, Senate Bill No. 620 added section 12022.53, 

subdivision (h), giving trial courts “discretion ‘in the interest of justice 

pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss 

an enhancement otherwise required to be imposed by this section.’ ” (People 

v. Pearson (2019) 38 Cal.App.5th 112, 116.) The factors “the trial court must 

consider when determining whether to strike a firearm enhancement under 

section 12022.53, subdivision (h) are the same factors the trial court must 

consider when handing down a sentence in the first instance,” including 

whether “ ‘[t]he crime involved great violence . . . threat of great bodily harm, 

or other acts disclosing a high degree of cruelty, viciousness, or callousness’ ” 

and whether “ ‘[t]he defendant has engaged in violent conduct that indicates 

a serious danger to society.’ ” (Id. at p. 117.)

We review a trial court’s decision not to strike a firearm enhancement 

under section 12022.53, subdivision (h) for abuse of discretion. (People v.

Pearson, supra, 38 Cal.App.5th at p. 118.) The party challenging the 
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sentence has the burden of showing the court’s decision was “ ‘ “irrational or 

arbitrary.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 376.) We will not 

reverse “ ‘ “merely because reasonable people might disagree” ’ ” with the 

decision. (Id. at p. 377.)

Vezina has not satisfied his burden. As Vezina acknowledges, the court 

carefully considered the relevant factors, including the numerous aggravating 

factors and the lone mitigating factor. His claim that the enhancement is 

“unduly harsh” and “out of balance” with the purpose behind section 12022.53

does not demonstrate an abuse of the court’s discretion. (People v. Pearson,

supra, 38 Cal.App.5th at p. 118 [in denying motion to strike section 12022.53

enhancement, trial court considered required factors; its decision “was 

squarely within the bounds of [its] discretion”]; People v. Flores (2021) 

63 Cal.App.5th 368, 376–377 [upholding imposition of section 12022.53 

enhancement; trial court correctly focused on the seriousness of the injury,

the degree of callousness the defendant exhibited, and the danger he posed to 

society].)

DISPOSITION

The judgment is affirmed.
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_________________________

Rodriguez, J.*

WE CONCUR:

_________________________

Needham, Acting P. J.

_________________________

Burns, J.

A159359

* Judge of the Superior Court of Alameda County, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.