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Filed 1/19/24 P. v. S ydnor CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ANTJUAN SYDNOR,

Defendant and Appellant. C096333 (Super. Ct. No. 15F03945)

In a prior opinion, we affirmed the murder conviction of defendant Antjuan
S ydnor but remanded for the trial court to consider its discretion to strike a firearm
enhancement under then recen tly enacted Senate Bill No. 620 (2017

- 2018 Reg. Sess.)

. On remand, the trial court declined to strike the enhancement.
D efendant appeals, contend ing the trial court misinterpreted and mis applied Penal
Code section 1385 and erred in not considering other interim sentenc ing changes under
Senate Bill No. 567 ( 2021

- 2022 Reg. Sess. ) and Assembly Bill No. 518 ( 2021

- 2022 Reg.
Sess. )

. (Undesignated statutory references are to the Penal Code.)2

We conclude the trial court acted within its discretion in declining to strike defendant’s firearm enhancement but abused its discretion by failing to consider other interim changes in the senten cing law

. The sentence is vacated , a nd the matter remanded for resentencing

. The judgment is otherwise affirmed.

FACTUAL AND PROCEDURAL BACKGROUND Defendant and a codefendant entered the home of “Byron D., bound Byron and his girlfriend, and forced them to the floor. [Defendant and the codefendant] then beat Byron while repeatedly asking him for money. Byron was shot in the head and killed when he did not give them money.” ( People v. Sydnor (May 27, 2021, C085040, C085760) [nonpub. opn.] ( Sydnor )

. ) A jury found defendant guilty of first degree murder with a robbery special circumstance, robbery, and the enhancement of personally discharging a firearm causing death for both counts (§ 12022.53, subd. (d)) . The trial court sentenced
defendant to life wit hout parole for the murder conviction plus 25 years to life for the firearm enhancement. The court also sentenced defendant to the upper term of six years for robbery but stayed that sentence, along with its firearm enhancement. Defendant appealed , and we affirmed his convictions but remanded for the trial
court to consider its discretion to strike defendant ’ s firearm enhancement. ( Sydnor , supra , C085040.) In April 2022, the trial court held a hearing and noted this court “affirmed the conviction but remanded to this Court solely to exercise the Court ’ s discretion under the intervening legislation, [Senate Bill No.] 620, from 2017 that now gives the Court the discretion to strike the enhancement for person al discharge of a firearm causing
death

. . . . There is not a full resentencing .” At the hearing, the trial court pointed out to the People that “one of the strongest arguments” by the defense was “if there’s already a sentence of life without the

poss ibility of parole, what does the additional 25

- years

- to

- life add, other than it looks like a sentence that would be imposed in Mississippi. For practical purposes, the Court has3

sentenced [defendant] to spend the rest of his life in prison.” The People r esponded, “there is really no reason that the Court can cite to” in section 1385 “to allow something to be stricken in this case.” The trial court then asked defense counsel if there were any mitigating circumstances, adding “this was a fairly cold

- bloode d killing. The victim was bound, tied in his own home [,] and then shot execution style. [Defendant] was on federal parole at the time.” Defense counsel responded: “All I can do is just submit the matter, your Honor.”
The trial court declined to exerc ise its discretion , explaining it had “two reasons
under what I ’ m calling the old traditional interest of justice analysis. Looking at the circumstances of the crime, the fact that [defendant] was on federal parole at the time and conduct in prison, there are no mitigating circumstances that would argue it ’ s in the interest of justice to strike the enhancement. [¶] Under a more specific analysis of the Legislature ’ s amendment to [section] 1385 [, subdivision ] (c), I don ’ t think this results in

a sentence that exceeds 20 years. Obviously it ’ s life without, but I think the Legislature there was talking about determinant sentencing; otherwise, the enhancement under
12022.53 [, subdivision ] (d) could not be applied. But assuming for the sake of argument
that 20

- year sentence is a mitigating factor, the Court would still find that dismissal could endanger public safety given the nature of the circumstances of this offense. I ’ m going to not exercise my discretion to resentence, and I ’ m not modifying the sentenc e at all from
the remit t[itu] r.”
Defendant timely appeal s

. DISCUSSION
Defendant contends the trial court violated three different statutes: (1) section 1385, (2) Senate Bill No. 567 ’ s changes to section 1170; and (3) Assembly Bill No. 518 ’ s changes to section 654. W e review the trial court ’ s sentencing decisions for an abuse of discretion ( People v. Sandova l (2007) 41 Cal.4th 825, 847), but review alleged error s of law de novo ( People v. Tran (2013) 215 Cal.App.4th 1207, 1217

- 1218).4 I
The Firearm Enhancement
Senate Bill No. 620 amended sections 12022.53 and 12022.5 to permit trial court s to strike these firearm enhancement s in the interests of justice pursuant to section 1385

. ( § § 12022.5, subd. (c), 12022.53, subd. (h).) Section 1385 sub division (c)(1) states in relevant part, “[n] otwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do s o.” Subdivision (c)(2) provides: “ In exercising its discretion under this subdivision, the cou rt shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor o f dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘ Endanger public safety ’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other seriou s danger to others. ” On e mitigating circumstance listed in
section 138 5 , subdivision (c)(2) is if “[t] he application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed. ” (§ 1385, subd. (c)(2)(C).) First, d efendant argues reversal is required under section 1385 because “the trial court misunderstood the scope of its discretion to strike or stay an enhancement under section 1385, subdivision (c) when it found that it did not apply en hancements imposed upon indeterminate sentences.” We disagree.
Defendant ’ s argument rests on a misinterpretation of the plain language of the statute. The mitigating circumstance he relies on states the “application of an
enhancement could result in a se ntence of over 20 years.” (§ 1385, subd. (c)(2)(C).) Here, the sentence could and likely will be a term of over 20 years, but independent from
the application of the enhancement

. Defendant is subject to a life without parole sentence
for the murder conv iction regardless of whether the enhancement is imposed

.5

Second, defendant argues that “[i]f the court had determined to strike appellant ’ s enhancement in total, appellant would still be incarcerated for the remainder of his life.
There is therefore no conceivable way that striking or reducing the enhancement would endanger public safety.” But whether striking the enhancement would endanger public safety is a consideration under subdivision (c)(2) that applies only if there is “[p] roof of the presence o f one or more of these [mitigating] circumstances .” (§ 1385, subd. (c)(2).)
Since no mitigating circumstances are applicable, subdivision (c)(1) ’s “furtherance of justice” analysis governed t he trial court ’ s discretion.
T he furtherance of justice analysis is one often applied to discretionary sentencing
decisions . “ ‘ [G]enerally applicable sentencing principles ’ relevant to a court ’ s determination of whether dismissal is in furtherance of justice ‘ relat[e] to matters such as
the defendant ’ s backgr ound, character, and prospects. ’ [Cit ation .] Those principles require consideration of circumstances in mitigation (and aggravation) in the broader context of the recognized objectives of sentencing, which are not limited to public safety. ” ( People v. O rtiz (2023) 87 Cal.App.5th 1087, 1097.) In declining to strike the enhancement, the trial court found that defendant “was on federal parole at the time,” and there were “no mitigating circumstances that would argue it ’ s in the interest of justice to
strik e the enhancement .” Defendant does not argue this reflects an abuse of discretion under the furtherance of justice analysis, nor can we make such a conclusion. We
therefore conclude the trial court acted within its discretion in declining to strike
defen dant’s firearm enhancement

. II Other Sentencing Changes
Defendant contends the trial court erred in failing to apply Senate Bill No. 567 and Assembly Bill No. 518 , both of which went into effect before the resentencing hearing on
remand

. Because defendant’s trial counsel did not request consideration of these sentencing changes in the trial court, the claims were forfeited. We nevertheless exercise6

our discretion to reach the merits of these claims to eliminate the need to address defendant’s alt ernative ineffective assistance of counsel claim

. ( People v. Crittenden (1994) 9 Cal.4th 83, 146 ; In re Victor L. (2010) 182 Cal.App.4th 902, 928

. ) We agree with defendant that remand is appropriate.
A. Senate Bill No. 567 and Assembly Bill No. 518
At the time of defendant ’ s original sentencing, trial courts had discretion under section 1170 to select the appropriate term if a statute prescribed a sentencing triad. (§ 1170, former subd. (b).) Pursuant to Senate Bill No. 567, effective January 1, 2022,

se ction 1170, subdivision (b)(1) now provides that “the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).” (§ 1170, subd. (b)(1); Stats. 2021, ch. 731, § 1 .3 .) The referenced exception provides a term exceeding the middle term may be imposed “only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term [ , ] and the facts underlying th ose circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) Assembly Bill No. 518, also effective January 1, 2022, modified section 654 to give trial courts discretion to choose the count on which they would stay execution of

sentence. (§ 654, subd. (a) ; S tats. 2021, ch. 441, § 1 .) “ Thus, under newly amended section 654, a trial court is no longer required to punish under the longest possible term of imprisonment when multiple offenses are based on the same act or omission. [Citation.] Section 654 ‘ now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. ’ [Citation.]” ( People v.
White (2022) 86 Cal.App.5th 1229, 1236.)7

Although our remittitur directed the trial court to consider whether to exercise its
discretion to strik e defendant’s firearm enhancement under Senate Bill No. 620, the trial court is not precluded from considering an intervening change of law after the issuance of
the remittitur that “was not, and could not have been, addressed in our remand order , and
so i t was not within the scope of the remittitur.” ( People v. Hargis (2019) 33 Cal.App.5th 199, 207.) Thus, Senate Bill No. 567 and Assembly Bill No. 518 , both of which became
effective after we issued our opinion , were applicable at resentencing. But the t rial court held the resentencing hearing “solely to exercise” its discretion under Senate Bill
No. 620. This was an abuse of discretion

. ( In re White (2020) 9 Cal.5th 455, 470.) When a trial court is unaware of the scope of its discretion, remand for resentencing is required “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. Gutierrez (201 4 ) 58 Cal.4th 1354, 1391.) Our record contai ns no such clear indication. Instead, the trial court expressed concerns over the length of defendant’s sentence

. Remand is therefore appropriate for the trial court to exercise its
discretion under Senate Bill No. 567 and Assembly Bill No. 518.
We re ject the People’s contention that defendant’s “conduct was simply too egregious for the trial court to even remotely entertain staying the most serious conviction of murder in favor of imposing such minimal punishment for robbery.” “When the applicable la w governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary power s at the time of sen tencing. Mere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear
indication of what a sentencing court might do on remand if it had been fully awa re of the scope of its discretionary powers.” ( People v. Salazar (2023) 15 Cal.5th 416, 431 .)8

Having concluded remand is appropriate, we need not consider the People’s
contention that the trial court properly relied on the aggravating factors in the probation report in selecting the upper term on the robbery count

. DISPOSITION
The sentence is vacated , and the matter is remanded for the trial court to consider exercising its discretio n under Senate Bill No. 567 and Assembly Bill No. 518. The trial court should also consider any additional, applicable changes to sentencing laws. The judgment is otherwise affirmed.

/s/ MESIWALA , J.

We concur:

/s/ MAURO, Acting P. J.

/s/ DUARTE , J.