Filed 11/24/20 P. v. Jackson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

AMOS JACKSON et al.,

Defendants and Appellants.

 B301431

 (Los Angeles County

 Super. Ct. No. LA068581)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Michael V. Jesic, Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of 

Appeal, for Defendant and Appellant Amos Jackson.

John L. Staley, under appointment by the Court of 

Appeal, for Defendant and Appellant Charles Spencer.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey,
2

Senior Assistant Apttorney General, Zee Rodriguez and 

Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff 

and Respondent.

_____________________________________

INTRODUCTION

In 2013, a jury convicted appellants Amos Jackson and 

Charles Spencer of six counts of robbery, one count of grossly 

negligent discharge of a firearm, and one count of being a 

felon in possession of a firearm. The court sentenced each 

appellant to a total of 245 years to life, including six 10-year 

sentence enhancements for using a firearm during the 

commission of the crimes. In September 2019, pursuant to 

our direction in People v. Jackson (Dec. 14, 2016, B259915) 

2016 Cal.App.Unpub. LEXIS 8996 (Jackson I), the trial court 

resentenced appellants on the count for grossly negligent 

discharge of a firearm. During the resentencing there was 

no discussion whether to strike the firearm enhancements 

previously imposed.1 The only issue in this appeal is 

whether we should again remand, this time to permit the 

1 At the time of appellants’ 2014 sentencing, imposition of 

the firearms enhancements was mandatory. Effective January 1, 

2018, Penal Code section 12022.5, subdivision (c), gave the trial 

court discretion to strike the firearm enhancements in the 

interest of justice. (People v. Humphrey (2020) 44 Cal.App.5th 

371, 377-378.) At the time of appellants’ resentencing, the 

provision had been in effect for 20 months.
3

trial court to exercise its discretion to strike those firearm 

enhancements.

Appellants argue remand is required because the 

record does not clearly show the court would not have struck 

the sentence enhancements. In response to the People’s 

contention that he forfeited this argument due to his failure 

to ask the court to strike the enhancements (or object to the 

court’s failure to do so sua sponte), appellant Jackson argues 

the trial court lacked the power to strike the enhancements 

on resentencing, and therefore his failure to request such 

action does not constitute forfeiture. Both appellants also 

urge us to address their appeal on the merits “to forestall a 

claim of ineffective assistance of counsel.” 

We find appellants forfeited their argument by failing 

to object at the resentencing. Moreover, the trial court is 

presumed to know the law, and appellants have failed the 

show the court was unaware of its sentencing discretion. We 

affirm.

STATEMENT OF RELEVANT FACTS

In 2013, a jury convicted appellants of six counts of 

robbery, one count of grossly negligent discharge of a 

firearm, and one count of being a felon in possession of a 

firearm. In 2014, the court sentenced each appellant to a 

total of 245 years to life, which sentence included six 10-year 

enhancements under Penal Code section 12022.53, 

subdivision (b), for use of a handgun during the commission 

of these crimes. 
4

Following appeal, this court remanded to the trial 

court to correct errors in the abstracts of judgment, and for 

resentencing on the conviction for grossly negligent 

discharge of a firearm. (Jackson I, supra, 2016 

Cal.App.Unpub. LEXIS at *50-*51.) On September 5, 2019, 

the trial court resentenced appellants as we directed.2 

During resentencing the trial court said nothing about 

striking the firearm enhancements, and appellants neither 

asked the court to strike the enhancements, nor voiced any 

objection to its failure to do so. Appellants filed a timely 

appeal from the resentencing. 

DISCUSSION

A. Appellants Forfeited Their Argument

“‘[T]he right to challenge a criminal sentence on appeal 

is not unrestricted. In order to encourage prompt detection 

and correction of error, and to reduce the number of 

unnecessary appellate claims, reviewing courts have 

required parties to raise certain issues at the time of 

sentencing. In such cases, lack of a timely and meaningful 

objection forfeits or waives the claim.’” (People v. Cardenas

(2020) 53 Cal.App.5th 102, 125.) Our Supreme Court has 

held that “the waiver doctrine should apply to claims 

involving the trial court’s failure to properly make or 

2 The delay in resentencing apparently resulted from the 

failure of the Department of Corrections to receive a copy of the 

remittitur issued in March 2017. 
5

articulate its discretionary sentencing choices.” (People v. 

Scott (1994) 9 Cal.4th 331, 353.)

It is undisputed that when the trial court resentenced

appellants, they neither asked the court to strike the firearm 

enhancements, nor objected to its failure to do so. Appellant 

Jackson argues we should nevertheless find he did not forfeit 

this argument on appeal because the trial court lacked the 

authority to strike the enhancements during resentencing.

3 

Both appellants additionally urge us to address their appeal 

on the merits “to forestall a claim of ineffective assistance of 

counsel.”

In 2016, we vacated the trial court’s sentence on the 

count for grossly negligent discharge of a firearm, and 

remanded the case for resentencing on that count. (Jackson 

I, supra, 2016 Cal.App.Unpub. LEXIS at *51.) “[W]hen part 

of a sentence is stricken on review, on remand for 

resentencing ‘a full resentencing as to all counts is 

appropriate, so the trial court can exercise its sentencing 

discretion in light of the changed circumstances.’” (People v. 

Buycks (2018) 5 Cal.5th 857, 893 (Buycks).) Thus, the court 

had discretion to strike the firearm enhancements during 

resentencing, and appellants’ lack of objection or request to 

strike resulted in forfeiture.

3 This is contrary to the acknowledgment in Jackson’s 

opening brief that “[t]he trial court had the discretion to consider 

whether to strike the firearm enhancements pursuant to the full 

resentencing rule.” Spencer’s opening brief also acknowledged 

the full resentencing rule. 
6

B. Remand Is Not Required

Citing People v. Almanza (2018) 24 Cal.App.5th 1104, 

1110, appellants contend “[r]emand is required unless the 

record reveals a clear indication that the trial court would 

not have reduced the sentence even if at the time of 

sentencing it had the discretion to do so.” (Ibid.) Appellants 

misread Almanza. There, the sentencing court lacked 

discretion to strike the firearm enhancements -- it was not 

until after the appeal was filed that the law granting the 

trial court such discretion became effective. (Id. at 1106, 

1109.) Almanza thus addressed the situation in which a 

court, through subsequent retroactive legislation, was 

granted discretion it did not have at the time of sentencing. 

(See also People v. McDaniels (2018) 22 Cal.App.5th 420, 424 

[“At the time it sentenced [the defendant], the trial court had 

no discretion to strike the three firearm enhancements 

imposed under section 12022.53”].) Here, as Spencer 

concedes and Jackson correctly conceded in his opening brief, 

the court had discretion to strike the firearm enhancements

when it resentenced them in September 2019. (Buycks, 

supra, 5 Cal.5th at 893.)

Nothing in the record indicates the court was unaware 

of its discretion. At the time of resentencing, the provision

granting the court discretion to strike the firearm 

enhancements had been in effect for over a year and a half. 

“[I]n light of the presumption on a silent record that the trial 

court is aware of the applicable law, including statutory 

discretion at sentencing, we cannot presume error where the 
7

record does not establish on its face that the trial court 

misunderstood the scope of that discretion.” (People v. 

Gutierrez (2009) 174 Cal.App.4th 515, 527; see also People v. 

Thomas (2011) 52 Cal.4th 336, 361 [“[i]n the absence of 

evidence to the contrary, we presume that the court ‘knows 

and applies the correct statutory and case law’”].) “When 

‘the record shows that the trial court proceeded with 

sentencing on the erroneous assumption it lacked discretion, 

remand is necessary so that the trial court may have the 

opportunity to exercise its sentencing discretion at a new 

sentencing hearing.’ . . . If the record is silent, however, the 

defendant has failed to sustain his burden of proving error, 

and we affirm.” (People v. Lee (2017) 16 Cal.App.5th 861, 

866-867.) Here, the record is silent. Appellants have failed

to sustain their burden of proving error.
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS.

 MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.