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Filed 9/12/22 P. v. Siackasorn CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JIMMY KEE SIACKASORN,

Defendant and Appellant.

C094024

(Super. Ct. No. 07F11789)

Defendant Jimmy Kee Siackasorn appeals from his April 2021 resentencing and, 

specifically, from the trial court’s denial of his request to strike a firearm sentencing 

enhancement imposed pursuant to Penal Code section 12022.53, subdivision (d).1 

Defendant contends our Supreme Court’s decision in People v. Tirado (2022) 12 Cal.5th 

688 (Tirado) requires that we vacate his sentence and remand for the trial court to 

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 Undesignated statutory references are to the Penal Code.
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exercise the discretion clarified by Tirado to strike the enhancement and impose a lesser 

enhancement in its stead. The Attorney General responds defendant forfeited this 

argument by not raising it in the trial court and, in any event, the record clearly indicates 

the trial court would not have stricken the enhancement even if it had been aware of its 

option to impose a lesser enhancement. We agree with the latter point and affirm.

FACTS AND PROCEEDINGS

In 2010, a jury found defendant guilty of first degree murder of a peace officer 

(§§ 187, subd. (a), 189) and found true an allegation that defendant personally and 

intentionally discharged a firearm and proximately caused death (§ 12022.53, subd. (d)). 

The trial court declined to exercise its discretion to impose a sentence of 25 years to life 

in prison for murder and instead sentenced defendant to life in prison without the 

possibility of parole (LWOP) (§§ 190.2, subd. (a)(7), 190.5), denied defendant’s motion 

to find the LWOP sentence unconstitutional, and imposed a consecutive term of 25 years 

to life in prison for the firearm enhancement (§ 12022.53, subd. (d)). 

Defendant appealed, and this court affirmed his conviction and sentence. 

(People v. Siackasorn (May 17, 2012, C065399) [nonpub. opn.], review granted Aug. 29, 

2012, S203568, and matter transferred with directions.) The California Supreme Court 

granted review and transferred the matter back to this court with directions to reconsider 

in light of the United States Supreme Court’s opinion in Miller v. Alabama (2012) 

567 U.S. 460. On transfer, this court affirmed defendant’s conviction but vacated his 

sentence and remanded for the trial court to resentence defendant without considering 

LWOP as the presumptive sentencing choice. (People v. Siackasorn (Dec. 7, 2012,

C065399) [nonpub. opn.], review granted Mar. 20, 2013, S207973, review dism. July 9, 

2014.) On remand, the trial court determined that defendant was one of the rare juvenile 

offenders referenced by Miller for whom LWOP was the appropriate sentence, and again 

imposed a consecutive term of 25 years to life for the firearm enhancement. (See Miller,

at pp. 479-480.) 
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Defendant appealed again, and, in 2018, after the Legislature passed Senate Bill 

No. 620 (2017-2018 Reg. Sess.), which gave trial courts discretion to strike 

section 12022.53 firearm enhancements, and after our Supreme Court decided People v. 

Superior Court (Lara) (2018) 4 Cal.5th 299, requiring retroactive transfer hearings for 

juvenile offenders, this court conditionally reversed defendant’s conviction and sentence. 

(People v. Siackasorn (Aug. 13, 2018, C083469) [nonpub. opn.].) We remanded the case 

to the juvenile court to determine whether it would have transferred defendant’s case to a 

court of criminal jurisdiction. (Ibid.) 

On remand, the juvenile court decided that both defendant’s offense and his 

behavior while in custody since the offense justified transferring defendant to a court of 

criminal jurisdiction. After the transfer, the trial court held a hearing to decide whether to 

strike defendant’s firearm enhancement. The court noted it had resentenced a number of 

juvenile offenders who had “demonstrated dramatic reformation,” such that “there was a 

case to be made for reducing or otherwise in some fashion or another ameliorating their 

sentence” but determined: “This is not one of those cases.” 

The trial court recounted that defendant had shot the victim peace officer three 

times from about 14 feet away. Before the shooting, defendant had made a number of 

threats against police officers and after the shooting, defendant bragged about killing the 

officer and threatened to kill other law enforcement personnel he encountered. The trial 

court then noted: “It strikes me that among the cases that I have handled where [someone 

is killed with a firearm], this is certainly on the end of the continuum of the worst of 

those [section] 12022.53 findings.” The court also rejected defendant’s argument that 

striking the enhancement would be purely symbolic, given that defendant had already 

been sentenced to LWOP, but would recognize the fact that defendant was a child when 

he committed the offense and had matured mentally since that time. Instead, the court 

agreed with the prosecution that the legal landscape was shifting and suggested that 

defendant’s “entrenched antisocial personality” warranted the consecutive term of 25 
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years to life in the event his LWOP sentence was ever reduced. Accordingly, the court 

denied defendant’s request to strike his firearm enhancement. 

Defendant timely appealed. After multiple continuances for both parties’ briefing 

and record preparation, the case was fully briefed on June 23, 2022, and assigned to this 

panel shortly thereafter. 

DISCUSSION

Our Supreme Court’s recent opinion in Tirado held that section 12022.53 permits 

a sentencing court to strike a section 12022.53, subdivision (d) firearm enhancement 

found true by the jury and impose a lesser uncharged enhancement. (Tirado, supra, 

12 Cal.5th at p. 700.) Defendant contends the trial court was unaware of this discretion 

when it declined to strike his section 12022.53, subdivision (d) enhancement, so we must 

vacate his sentence and remand for that court to consider whether it would strike the 

subdivision (d) enhancement if it could instead impose a lesser enhancement. The 

Attorney General concedes the trial court did not consider imposing a lesser 

enhancement, but argues defendant forfeited this claim by failing to request a lesser 

enhancement. On the merits, the Attorney General contends the record clearly indicates 

the trial court would not have stricken the enhancement even had it known it could then 

have imposed a lesser enhancement, so remand is unnecessary. Anticipating this 

argument, defendant argues that recent amendments to section 1385 change the 

procedures for resentencing juvenile offenders, making it less likely remand would be a 

futile exercise. The Attorney General responds that the section 1385 amendments 

expressly do not apply to defendant’s pre-2022 sentencing hearing, and the trial court 

already followed the procedures in the amended section 1385 in any event. 

Even if we assume without deciding that defendant did not forfeit his Tiradobased arguments, we conclude the record clearly indicates the trial court would not have 

imposed a lesser enhancement even if asked to do so, as we next explain.
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“A court acting while unaware of the scope of its discretion is understood to have 

abused it.” (Tirado, supra, 12 Cal.5th at 694.) Here, we agree with the parties that 

because the trial court apparently was not aware of its discretion to impose a lesser 

enhancement after striking a section 12022.53, subdivision (d) enhancement, the trial 

court abused its discretion. We then must consider whether the error requires us to vacate 

defendant’s sentence. (Cal. Const., art. VI, § 13.) When a court sentences without full 

awareness of its discretionary powers, “ ‘the appropriate remedy is to remand for 

resentencing unless the record “clearly indicate[s]”’ that the trial court would have 

reached the same conclusion “even if it had been aware that it had such discretion.” ’ ” 

(People v. Flores (2020) 9 Cal.5th 371, 432.)

Here, remand would be an idle act. Having already found defendant to be one of

the rare juveniles described in Miller “ ‘whose crime reflects irreparable corruption’ ” 

(see Miller v. Alabama, supra, 567 U.S. at pp. 479-480), and for whom LWOP is the 

appropriate sentence, the trial court then gave additional reasons why defendant’s 

characteristics and crimes warranted imposition of the consecutive term of 25 years to 

life in prison mandated by the section 12022.53, subdivision (d) enhancement. First, the 

court expressly ruled out “reducing or otherwise in some fashion or another ameliorating” 

defendant’s sentence by comparing him to other juveniles who had “demonstrated 

dramatic reformation,” whereas defendant had demonstrated an “entrenched antisocial 

personality.” Second, the court stated the facts of defendant’s offense were “on the end 

of the continuum of the worst of those [section] 12022.53 findings” the court had 

handled. Third, the court emphasized that the enhancement was an important part of 

defendant’s sentence because, in the event defendant’s LWOP sentence was ever 

reduced, defendant’s offense warranted the additional life sentence. Finally, even 

assuming defendant’s LWOP sentence remained, the court concluded that “it would fly in 

the face of all the other evidence and -- all the evidence in this case, and in particular of 

the victim of this offense and his memory” to not impose the enhancement prescribed for 
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defendants who cause great bodily injury or death, where here defendant had shot the 

victim to death. 

Thus, the record clearly indicates the trial court would not have stricken the 

section 12022.53, subdivision (d) enhancement had it known it could do so in favor of a 

lesser enhancement, even had that court been fully aware of its discretion. Further, the 

recent amendments to section 1385 do not affect our analysis because the Legislature 

expressly declined to give those amendments retroactive effect. (§ 1385, subd. (c)(7), as 

amended by Stats. 2021, ch. 721, § 1 [“This subdivision shall apply to all sentencings 

occurring after January 1, 2022”; see also Stats. 2022, ch. 58, § 15 [correcting drafting 

errors].) Our harmless error analysis determines what the trial court would have done 

had it been fully aware of its discretion at the time of the April 2021 sentencing hearing. 

(See People v. Flores, supra, 9 Cal.5th at p. 432.) A law that only applies to sentencing 

hearings occurring after January 1, 2022, does not factor into this determination.2

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 We agree that were we to remand for resentencing, the amendments to section 1385 

would apply to that new sentencing hearing. But because we are not remanding, for the 

reasons we have explained, there is no resentencing hearing to which the new law would

apply.
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DISPOSITION

The judgment is affirmed.

 /s/

Duarte, Acting P. J.

We concur:

 /s/

Hoch, J.

 /s/

Earl, J.