Filed 10/23/20 P. v. Smith CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

SHICOREY LEE SMITH,

Defendant and Appellant.

 B300420

 (Los Angeles County

 Super. Ct. No. BA437361)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David V. Herriford, Judge. Affirmed.

Jenny M. Brandt, 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, Colleen M. Tiedemann and 

Lindsay Boyd, Deputy Attorneys General, for 

Plaintiff and Respondent.

____________________________
2

A jury convicted Defendant Shicorey L. Smith of second 

degree robbery and carrying a loaded firearm that was not 

registered to him. The trial court sentenced Smith to an 

aggregate prison term of 12 years 8 months, which included a 10-

year enhancement for his use of a firearm during the robbery. 

Smith appealed the judgment, which we conditionally reversed 

because the trial court erred in failing to disclose to Smith a 

personnel complaint against one of the investigating officers. We 

remanded the matter to the trial court to provide Smith with the 

opportunity to show prejudice arising from the error, and allow 

the trial court to decide whether to strike the firearm 

enhancement.

Upon remand, the trial court denied Smith’s motion for a 

new trial based on evidence derived from the personnel 

complaint, declined to strike the firearm enhancement, and 

reinstated the original judgment. 

Smith appealed. Smith claims that the disclosure of the 

personnel complaint led to the discovery of evidence that entitled 

him to a new trial. Specifically, Smith asserts the detective who 

interviewed him had previously utilized coercive interrogation 

techniques against a suspect in another case. According to 

Smith, if he had been allowed to present this evidence at trial, he 

could have persuaded the jury that he falsely confessed to 

committing the robbery. Second, Smith challenges the trial 

court’s refusal to strike the firearm enhancement.

Both of Smith’s claims of error fail. First, Smith does not 

establish that he was prejudiced by the exclusion of the new 

evidence. Given that an audio recording and transcript of 

Smith’s interview with the detective were introduced at trial, the 

jury could readily assess the voluntariness of Smith’s confession 
3

without the newly discovered evidence. Smith may not obtain 

relief on his second claim because he fails to show that the trial 

court abused its discretion in refusing to strike the firearm 

enhancement where Smith not only brandished a firearm in the 

course of the robbery, but also carried an unregistered and loaded

firearm the very day following the robbery. Finding no error, we 

affirm.

PROCEDURAL BACKGROUND

We summarize only those facts that are relevant to this 

appeal.

An information charged Smith with one count of second 

degree robbery, as defined by Penal Code1 section 212.5, 

subdivision (c); and one count of carrying a loaded firearm not 

registered to Smith, in violation of section 25850, subdivision (a). 

(People v. Smith (Jan. 31, 2019, B281860) [nonpub. opn.] 

(Smith I).)2 The information alleged that Smith had personally 

used a firearm during the commission of the robbery for the 

purposes of section 12022.53, subdivision (b).3 (Smith I, supra, 

B281860.) 

1 Undesignated statutory citations are to the Penal Code.

2 Portions of the Procedural Background are derived from 

our opinion issued in connection with Smith’s prior appeal in 

Smith I. We have granted Smith’s request for judicial notice of 

the appellate record from Smith I.

3 Section 12022.53, subdivision (b) provides in pertinent 

part: “Notwithstanding any other provision of law, any person 

who, in the commission of a [robbery], personally uses a firearm, 

shall be punished by an additional and consecutive term of 

imprisonment in the state prison for 10 years. The firearm need 

not be operable or loaded for this enhancement to apply.” (See 
4

A jury convicted Smith of all counts and found the firearm 

enhancement to be true. (See Smith I, supra, B281860.)

At Smith’s sentencing hearing, the trial court remarked 

that the low base term on the second degree robbery conviction 

was appropriate because the “factors in mitigation outweigh the 

factors in aggravation.” In particular, the court stated that it did 

not “know that there are any factors in aggravation,” given that 

“[t]here was certainly no professionalism in this situation,” the 

court did not “think the victim was particularly vulnerable,” and 

“there is no cruelty, viciousness, or callousness.” The court also 

apparently found that Smith was not a “danger to society.” The 

court noted the following mitigating factors: Smith had no prior 

criminal history, and “[h]e did acknowledge his involvement at a 

relatively early stage in the proceedings.” Conversely, the court 

found that even if Smith’s “actions were motivated by a desire to 

provide resources” to his family, that fact would not “be a factor 

in mitigation.” Smith was thereafter sentenced to an aggregate 

prison term of 12 years 8 months, which was comprised of the low 

term of 2 years for the second degree robbery conviction and a 

10-year enhancement imposed pursuant to section 12022.53, 

subdivision (b), along with a consecutive 8-month term for 

carrying a loaded firearm that was not registered to him (i.e., 

one third of the mid-term for that offense). 

Smith appealed the judgment. (Smith I, supra, B281860.) 

We conditionally reversed the judgment and remanded the 

matter to the trial court for further proceedings. (Id.) We 

directed the trial court to order the disclosure of a personnel 

§ 12022.53, subd. (b); see also § 12022.53, subd. (a)(4) [“This 

section applies to the following felonies: [¶] . . . [¶] Section 211 

(robbery).”].)
5

complaint concerning Detective Gerald Harden, a document that 

the lower court had reviewed in connection with a motion that 

Smith had filed pursuant to Pitchess v. Superior Court (1974) 

11 Cal.3d 531.4 (See Smith I, supra, B281860.) We further 

directed the trial court to afford Smith an opportunity to 

demonstrate that this undisclosed evidence entitled him to a new 

trial, and determine whether to strike the firearm enhancement 

pursuant to an amendment to the Penal Code that took effect 

after Smith’s sentencing hearing. (Id.) 

On remand, Smith filed a motion for a new trial based on 

evidence derived from the personnel complaint against Harden. 

Attached to the new trial motion was a report prepared by an 

investigator. According to the report, Wendell Carter told the 

investigator that Carter filed a personnel complaint against 

Detective Harden in 2014.5 Carter stated that he was taken to a 

police station for questioning after an unknown person picked up 

a firearm that had been dropped by a police officer. Carter 

claimed that during his interview with Detective Harden at the 

station, Harden “threatened to search [Carter’s] house and send 

him to jail,” which Carter interpreted “as threats because he was 

innocent.” Further, although Carter did not “have a specific 

recollection of Detective Harden threatening him with bodily 

4 A Pitchess motion is a means by which “[a] criminal 

defendant, on a showing of good cause, [may obtain] discovery of 

information in the confidential personnel records of a peace 

officer when that information is relevant to defend against a 

criminal charge.” (See People v. Gaines (2009) 46 Cal.4th 172, 

176 (Gaines).)

5 The remainder of this paragraph summarizes pertinent 

portions of the investigator’s report.
6

force if [Carter] didn’t cooperate,” Carter asserted that “probably” 

did “happen.” Carter told the investigator that he was “not 

willing to testify in this case.” 

On June 24, 2019, the trial court held a hearing on Smith’s 

new trial motion and on whether to strike the firearm 

enhancement. The court denied the new trial motion on the 

ground that “it would not be probable that the outcome would 

[have been] different” had Carter testified at trial. 

Additionally, upon “consider[ing] all of the facts and 

circumstances of the incident,” the trial court declined to strike 

the 10-year firearm enhancement imposed by section 12022.53, 

subdivision (b). The court reasoned that although it previously 

found in connection with the robbery conviction that “[t]here were 

[a] number of factors in mitigation,” there were no mitigating 

factors “with respect to the use of the gun.” Furthermore, in 

response to defense counsel’s argument that Smith committed 

the robbery to “get money for” his family, the court stated,

“[T]here are other ways [to] do that that don’t involve violence.” 

The court also remarked that the robbery victim “was obviously 

unsettled at the minimum, if not terrorized by this act.” 

Upon denying the new trial motion and declining to strike 

the firearm enhancement, the trial court reinstated the original 

judgment against Smith. 

Smith timely appealed. 

FACTUAL BACKGROUND

1. The People’s theory of the case

On the evening of June 12, 2015, Jorge Gonzalez was 

working at a mini-market that he and his wife owned. Smith 

entered the mini-market, pointed a gun at Gonzalez, and 
7

demanded money from him. Gonzalez recognized Smith because 

he had previously come into his store to make purchases. Smith 

threatened to shoot Gonzalez, and Gonzalez thereafter gave 

Smith money from the cash register. Gonzalez later reported the 

crime to the police. 

The next day, Gonzalez approached police officers and told 

them that Smith, who was walking down the street nearby, had 

robbed him. Smith ran away after one of the officers approached 

him. As the police pursued Smith on foot, he dropped a loaded 

gun; Gonzalez later identified this weapon as the gun that Smith 

used to rob him. At the conclusion of the pursuit, the police 

apprehended Smith. 

2. Smith’s interview with Detective Harden

At trial, Detective Harden testified that he interviewed 

Smith at a police station on the evening of June 13, 2015. 

Harden authenticated a redacted audio recording of the interview 

that was admitted into evidence. Although the audio recording 

itself is not in the record before us, a transcript thereof is in the 

appellate record.6

During the interview, Harden stated that Smith’s girlfriend 

attempted to conceal from the police the gun that Smith had 

dropped.7 Harden accused Smith of committing a robbery and 

6 This transcript was also admitted into evidence. Our 

description of the contents of the interview is based on the 

transcript. 

7 The People’s counsel referred to this person as Smith’s 

girlfriend, whereas defense counsel called her Smith’s fiancée, 

and Smith’s appellate counsel at times designates her as Smith’s 
8

stated that Smith’s girlfriend “knows what [Smith] did with that 

gun.” Although Harden initially intimated that Smith’s 

girlfriend was “go[ing] to jail” because “she picked up [Smith’s] 

gun to help [him] out,” Harden shortly thereafter stated that 

“she’s going to leave tonight . . . [and] not going to get booked 

tonight . . . because she told me what’s up[,] . . . [s]he told me the 

truth.” Harden further suggested that a video recording showed 

that Smith was at the scene of the robbery. 

Later during the interview, Harden stated he understood 

that Smith was “providing for [his] family,” “trying to keep the 

lights on, [and] trying to keep [his] baby fed”; Harden told Smith 

that he had an “opportunity . . . to tell [Harden Smith’s] side of 

the story, from [Smith’s] perspective.” Smith stated that he 

“wasn’t trying to hurt nobody.” Harden replied in pertinent part, 

“I believe you, okay? . . . Write down what happened, okay?[8]. . . 

Think about your kids, think about what you’ll be able to tell 

them, okay, that you told the truth, and you tell the truth 

always.” 

The transcript indicates that shortly thereafter, Harden 

stated: “[Y]ou told [the victim] to open the register and give [you] 

the money, yes? . . . You said it over and over again, give me the 

money, give me the money.” Smith responded: “I [unintelligible] 

wife. Her precise relationship to Smith has no bearing on the 

instant appeal.

8 Harden testified that during the interview, he provided 

Smith with a form on which he could “write his side of the story,” 

and that Smith filled out the form. Although that form was 

admitted into evidence, it is not in the record before us. In any 

event, there is no dispute that Smith confessed to the robbery 

during his interview with Harden. 
9

only said it once, and he just walked over.” Harden next said: 

“And then you raised the gun up over your head as if you were 

going to hit him with it, but you didn’t,” and Smith replied: “No, 

I didn’t.” Smith then claimed the victim handed him only $40, 

whereas Harden replied that the victim “thinks it was $60.” 

At trial, Harden admitted “[t]here was no video” of the 

robbery, and that he had told Smith such a video existed “as a 

ruse.” Harden also admitted that Smith’s girlfriend never told 

him that she knew what Smith “did with that gun.” Additionally, 

Harden testified that although he “alluded to the fact” that 

Smith’s girlfriend “might be going home,” he did not promise to 

release Smith’s girlfriend if Smith told him the truth. Harden 

also testified that he did not “impl[y]” that Smith’s girlfriend 

“was leaving jail.” 

DISCUSSION

Smith argues he is entitled to a new trial because if he had 

been allowed to present evidence that Harden employed coercive 

interrogation techniques against Carter, there is a reasonable 

probability that the jury would not have convicted Smith of 

second degree robbery. In the alternative, he contends that the 

trial court erred in declining to strike the firearm enhancement. 

For the reasons discussed below, we disagree with both 

contentions. 

A. Smith Fails to Establish that Carter’s Allegations 

Entitled Him to a New Trial

“To obtain relief, . . . a defendant who has established that 

the trial court erred in denying Pitchess discovery must also 

demonstrate a reasonable probability of a different outcome had 

the evidence been disclosed.” (Gaines, supra, 46 Cal.4th at 
10

p. 182.) “The reasonable-probability standard of prejudice we 

have applied in Pitchess cases is the same standard we have 

applied generally to claims that the prosecution improperly 

withheld exculpatory evidence in violation of a defendant’s right 

to due process.” (Id. at p. 183.) 

Under this standard of prejudice, “ ‘[t]he question is not 

whether the defendant would more likely than not have received 

a different verdict with the evidence, but whether in its absence 

he received a fair trial, understood as a trial resulting in a verdict 

worthy of confidence. . . . [¶] . . . [I]t is not a sufficiency of evidence 

test. A defendant need not demonstrate that after discounting 

the inculpatory evidence in light of the undisclosed evidence, 

there would not have been enough left to convict.’ ” (People v. 

Harrison (2017) 16 Cal.App.5th 704, 710.) Put differently, “ ‘the 

conviction must be reversed[ ] only if the evidence is material in 

the sense that its suppression undermines confidence in the 

outcome of the trial.’ ” (See Gaines, supra, 46 Cal.4th at p. 185.)

Smith contends Carter’s allegations against Detective 

Harden “corroborated the defense that Mr. Smith falsely 

confessed.” Smith seems to advance two separate, but related, 

theories of prejudice—i.e., the introduction of evidence that 

Harden previously used coercive interrogation tactics would have: 

(1) “giv[en] the jury a factual basis to reject the Detective’s 

testimony that he never implied to Mr. Smith that he would not 

release his girlfriend unless Mr. Smith confessed”; and 

(2) “show[ed] that Detective Harden knew exactly what he was 

communicating [to Smith]: that Mr. Smith needed to confess or 

else his family would be harmed” because Smith’s girlfriend 

would not be released from custody. (Italics added.) Neither 

theory establishes a reasonable probability that the new evidence 
11

would have persuaded one or more jurors that Smith’s confession 

was coerced.

As we noted in the Factual and Procedural Background, an 

audio recording of Harden’s interview with Smith was admitted 

into evidence, along with a transcript of that interview. Smith 

does not explain why the jury could not have relied solely on the 

recording and the transcript to assess whether Harden impliedly 

threatened to keep Smith’s girlfriend in custody if Smith refused 

to confess to the robbery. Although the recording and the 

transcript contained redactions, Smith does not claim that these 

omissions prevented the jury from determining whether Smith’s 

confession was coerced. Indeed, Smith apparently claims that at 

trial, Harden falsely claimed that the recording did not show he 

had “suggested” that if Smith “confessed to the robbery, police 

would release his [girlfriend] . . . .” 

Thus, Smith fails to demonstrate that if Carter’s 

allegations against Harden had been presented at trial, there is a 

reasonable probability that at least one juror would have found 

that Smith’s confession was coerced. (See People v. Anthony

(2019) 32 Cal.App.5th 1102, 1139 [“We must presume all 

intendments and presumptions in favor of the judgment, and 

‘ “ ‘on matters as to which the record is silent, . . . error must be 

affirmatively shown.’ ” ’ ”].) 

Insofar as Smith believes the new evidence establishes that 

Detective Harden believed he was impliedly threatening Smith 

during the interview, such evidence would not have been relevant 

to the jury’s analysis of Smith’s confession. In determining

whether Smith’s confession was coerced, the jury was required to 

ascertain the extent to which Harden’s conduct prompted Smith 

to make the confession, and not whether the detective was
12

subjectively aware that his conduct would have such an effect.

(See People v. Gutierrez (2002) 28 Cal.4th 1083, 1133 [“[T]he 

voluntariness inquiry is, of course, concerned with defendant’s

subjective state of mind at the time of the questioning, not that of 

[the] [investigating d]etective . . . .”]; People v. Xiong (2020)

54 Cal.App.5th 1046, 1070–1071 [noting that “evidence of 

defendant’s state of mind . . . was relevant to [his] false 

confession defense,” and that “the issue of voluntariness” of the 

defendant’s confession called for an assessment of “ ‘the 

circumstances that prompted his confession’ ”].)

Smith further contends that “[t]he only other evidence of 

guilt [(i.e., besides his confession)] was [Gonzalez’s] eyewitness 

testimony,” which was “unreliable” because “(1) it was a crossracial identification; (2) the victim only saw the perpetrator for a 

brief period of time; (3) the victim was under extreme stress 

during the short time in which he observed the perpetrator; 

(4) the victim observed the perpetrator while he held a gun; and 

(5) one day passed before the victim identified” Smith.9 Smith 

also suggests his confession was unreliable because it contained 

“many inaccuracies,” including his statement to Harden that he 

9 We note that during the proceedings below, Smith 

did not argue that the eyewitness testimony was reason alone to 

grant a new trial, nor could he have done so. There were only 

two issues on remand: Whether the failure to disclose 

information leading to the discovery of Carter’s allegations 

against Harden required a new trial and whether the court would 

exercise its discretion to strike the firearm enhancement. 

(Smith I, supra, B281860.) Smith argued below that the trial 

court’s Pitchess error was especially prejudicial because of the 

unreliability of the victim’s eyewitness identification of Smith as 

the man who robbed him at gunpoint. 
13

“did not raise the gun as if he was going to hit Gonzalez”; Smith 

asserted that Gonzalez “ ‘walked over’ ” after Smith demanded 

money from him, whereas Gonzalez claimed that he remained 

behind the counter throughout the robbery; and the fact that 

Smith “said he took $40, but Gonzalez said that he took $60.” 

The Attorney General counters that Gonzalez’s identification of 

Smith “was highly credible” because “Gonzalez recognized 

[Smith] as someone who came into his store frequently to buy 

soda and cigarettes”; “Gonzalez’s identification of [Smith] also 

occurred soon after the robbery, the next day, when Gonzalez saw 

[Smith] walking near the store”; “Gonzalez immediately notified 

nearby police officers that [Smith] was the man who robbed him 

the day before”; Smith “fled when approached by police officers 

the following day and had to be pursued on foot”; and Smith “had 

a loaded handgun on his person which matched the description 

given by Gonzalez, and which Gonzalez later identified as the 

gun used in the robbery.” 

Because Smith’s appellate claim hinges on his erroneous 

premise that there is a reasonable probability that Carter’s 

allegations against Harden would have persuaded the jury that 

Smith’s confession was coerced, we need not reach the parties’ 

other arguments concerning the reliability of Gonzalez’s 

eyewitness identification or the purported inaccuracies in Smith’s 

confession about the amount Smith robbed from the victim, 

whether Gonzalez “ ‘walked over’ ” after Smith demanded the 

money, and whether Smith raised his firearm in a threatening 

fashion. 

In sum, Smith’s claim of error fails because he has not 

shown that the exclusion of the new evidence “ ‘undermines 
14

confidence in the outcome of the trial.’ ” (See Gaines, supra, 

46 Cal.4th at p. 185.) 

B. The Trial Court Did Not Abuse Its Discretion in 

Declining to Strike the Firearm Enhancement

“Senate Bill No. 620 (2017–2018 Reg. Sess.), which added 

section 12022.53, subdivision (h), gave the trial court 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.’ [Citation.] [¶] 

‘ “[A] court’s discretionary decision to dismiss or to strike a 

sentencing allegation under section 1385 is” reviewable for abuse 

of discretion.’ [Citation.] ‘In reviewing for abuse of 

discretion, . . . . “ ‘[t]he burden is on the party attacking the 

sentence to clearly show that the sentencing decision was 

irrational or arbitrary. [Citation.]’ ” ’ ” (People v. Pearson (2019) 

38 Cal.App.5th 112, 116 (Pearson).) Under this standard, 

“ ‘ “ ‘[a]n appellate tribunal is neither authorized nor warranted 

in substituting its judgment for the judgment of the trial 

judge.’ ” ’ ” (Ibid.)

When determining whether to strike or dismiss an 

enhancement, the trial court must consider “the factors listed in 

California Rules of Court, rule 4.410 (listing general objectives in 

sentencing), as well as circumstances in aggravation and 

mitigation under California Rules of Court, rules 4.421 

and 4.423.” (See Pearson, supra, 38 Cal.App.5th at p. 117.) 

“ ‘[U]nless the record affirmatively reflects otherwise,’ the trial 

court is deemed to have considered the factors enumerated in the 

California Rules of Court.” (Ibid., quoting Cal. Rules of Court, 

rule 4.409.) One factor alone may be dispositive under the abuse 
15

of discretion standard. (Cf. People v. Lamb (1988) 206 Cal.App.3d 

397, 401 (Lamb) [regarding imposition of the upper term].)

Our standard of review is dispositive. On the record before 

us, we cannot conclude that the trial court’s refusal to strike the 

firearm was arbitrary or irrational.

Here, the jury not only convicted Smith of robbery with use 

of a firearm, but also of carrying an unregistered and loaded 

firearm the day after the robbery. (See Smith I, supra, B281860.) 

Thus, Smith’s use of a firearm in the robbery was not an isolated 

lapse of judgment. Smith, moreover, does not contest the trial 

court’s finding that during the robbery, Smith’s brandishing of a 

firearm unsettled, if not terrorized, the victim. Under these 

circumstances, we cannot conclude that the trial judge acted 

irrationally or arbitrarily in not striking the firearm 

enhancement. 

Smith counters that the trial court abused its discretion in 

declining to strike the 10-year firearm enhancement provided 

under section 12022.53, subdivision (b) because at Smith’s 

sentencing hearing, the lower court “expressly found that there 

were no aggravating facts to the crime, and that there were a 

number of mitigating facts.” This ignores the trial court’s express 

finding in considering whether to strike the firearm that there 

were no mitigating factors “with respect to the use of the gun.” 

Smith also argues the trial court should have stricken the 

enhancement because Smith was 19 years old at the time of the 

robbery and “it is now widely-accepted that persons under the 

age of 25 years have underdeveloped brains which makes [sic] 

them far less culpable for their conduct than adults.” Smith 

claims that his “age alone warranted the striking of the 

enhancement.” This argument ignores the applicable standard of 
16

review. Although another trial court might have given more 

weight to Smith’s age in deciding whether to strike the 

enhancement, we may set aside a contrary ruling only if the 

“ ‘ “ ‘decision is so irrational or arbitrary that no reasonable 

person could agree with it.’ ” ’ ” (See Pearson, supra, 

38 Cal.App.5th at p. 116, italics added.) As noted above, the 

record does not support the conclusion that, under the deferential 

standard of review applicable to Smith’s appellate claim, his

relative youth compels striking the firearm enhancement.

Smith contends the trial court’s ruling was an abuse of 

discretion because it “violated the general sentencing objectives 

set forth in [California] Rules of Court, [r]ule 4.410[(a)].” We 

reject this argument because it relies on evidence that is not in 

the record and for which Smith did not seek judicial notice (e.g., a 

study supposedly demonstrating “there is no relationship 

between length of sentence and deterrence”).10 (See People v. 

Endsley (2016) 248 Cal.App.4th 110, 123 [“[O]ur review on appeal 

10 This argument also relies on the trial court’s finding at 

the sentencing hearing that Smith did not pose a danger to 

society. Nonetheless, the trial court reasonably could have found 

that Smith’s use of a firearm posed a danger to society because 

Smith used a firearm during the robbery, he possessed an 

unregistered loaded firearm the following day, and his 

brandishing of a firearm had a profound effect on Gonzalez. 

Furthermore, although Smith correctly points out that the People 

did not seek restitution on Gonzalez’s behalf, we affirm the trial 

court’s imposition of the 10-year enhancement because it was 

reasonably supported by other relevant factors. (Cf. Lamb, 

supra, 206 Cal.App.3d at p. 401 [“One factor alone may warrant 

imposition of the upper term [under the abuse of discretion 

standard].”].) 
17

is limited to consideration of the matters contained in the record 

before us.”].) 

We disregard the following arguments Smith raises for the 

first time in his reply: (1) his status as a father of a young child 

is a mitigating factor; (2) he had never been to prison before; and 

(3) “[h]e would have credit for time served if [we] granted him 

relief.” (People v. Taylor (2004) 119 Cal.App.4th 628, 642 [“It is 

improper to raise new contentions in the reply brief.”].) Even 

considering these arguments on their merits, they do not 

demonstrate that the trial court’s refusal to strike the firearm 

was irrational or arbitrary given his terrorizing use of a firearm 

during the robbery and his carrying an unregistered loaded 

firearm on the very next day.

Lastly, while Smith apparently claims we should order his 

release from prison to protect him from “COVID-19 infested 

prisons in California,” he concedes that the pandemic did not 

arise until after the trial court decided not to strike the 

enhancement. Yet, Smith fails to explain how the trial court 

could have acted irrationally or arbitrarily by failing to consider a 

circumstance that did not exist at the time it refused to strike 

Smith’s firearm enhancement.

For these reasons, we conclude that Smith failed to 

establish that the trial court abused its discretion in declining to 

strike the 10-year firearm enhancement. 
18

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.