Filed 6/12/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TROY T. McVEY,

Defendant and Appellant.

B280966

(Los Angeles County

Super. Ct. No. BA432637)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Douglas W. Sortino and Henry J. Hall, Judges. 

Affirmed.

Sally Patrone Brajevich, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Senior Assistant 

Attorney General, Margaret E. Maxwell and Scott A. Taryle, 

Supervising Deputy Attorneys General, and Gregory B. Wagner, 

Deputy Attorney General, for Plaintiff and Respondent.

_________________________________
2

Troy T. McVey appeals the judgment entered following

three jury trials in which he was convicted of voluntary 

manslaughter (Pen. Code, § 192, subd. (a)) in count 1, and felony 

vandalism (Pen. Code, § 594, subd. (a)) in count 2.1 The jury 

found true the personal firearm use allegation. (Pen. Code, 

§ 12022.5, subd. (a).) The trial court imposed an aggregate 

sentence of 16 years 8 months, consisting of the mid-term of 

6 years for the voluntary manslaughter conviction, plus 10 years 

for the firearm enhancement, and a consecutive 8-month term for 

the felony vandalism conviction.

Appellant contends the trial court erroneously excluded 

evidence that the victim had been diagnosed with paranoid

schizophrenia and had behaved aggressively in two 

confrontations with police officers 20 years earlier in Florida. We 

disagree and affirm the judgment of conviction. Appellant 

further seeks remand for reconsideration of his firearm 

enhancement pursuant to Senate Bill No. 620,2 which amended 

Penal Code section 12022.5, subdivision (c) to remove the 

 

1 Appellant was charged in count 1 with first degree 

murder, but the jury in the first trial reached a verdict only on 

count 2 while deadlocking on count 1. In a retrial of count 1, the 

jury found appellant not guilty of first and second degree murder, 

but guilty of voluntary manslaughter. Following the verdict, the 

trial court granted a motion for a new trial on the ground that the 

prosecution’s late disclosure of evidence had prejudiced appellant 

in the second trial. A third trial on count 1 along with the verdict 

on count 2 from the first trial resulted in the judgment and 

sentence appellant now appeals.

2 Senate Bill No. 620 (2017–2018 Reg. Sess.) Statutes 2017, 

chapter 682, section 1.
3

prohibition on striking firearm enhancements. Because the trial 

court’s comments at sentencing unequivocally indicate that it

would not exercise its new discretion under Penal Code section 

12022.5, subdivision (c) to dismiss the firearm enhancement in 

appellant’s case, we decline his remand request.

FACTUAL BACKGROUND

In the late night hours of January 4, 2015, appellant and 

his friend, Coby, were walking on Cahuenga Boulevard in 

Hollywood. Appellant was carrying a semiautomatic .22-caliber 

handgun in his waistband behind his back. The magazine was 

fully loaded and there was a round in the chamber; the gun was 

cocked, and the safety was off. Outside an adult bookstore 

appellant and Coby were approached by two African-American 

men, who sold appellant what he believed to be cocaine for $40. 

Appellant and Coby crossed the street as the drug dealers drove 

away. When appellant and Coby examined the drugs they had 

just bought, appellant was upset to discover the substance was 

not cocaine, but powdered sugar.

The two men went to their car and changed clothes. They 

then returned to the area where the drug deal had taken place, 

and appellant saw what he thought was the car belonging to the 

drug dealers. Still upset about the fake drugs, he smashed all of

the car’s windows with the handle of a knife he was carrying. 

When an onlooker yelled at them, appellant stopped breaking the 

windows, and he and Coby walked away.

About a block away, appellant and Coby encountered a 

homeless man named Richard Miller, who was panhandling. 

Miller extended his hand toward appellant and asked for money. 
4

An altercation ensued,3 and appellant fired a shot at Miller. 

After a few seconds, appellant fired multiple shots in rapid 

succession. Miller collapsed on the sidewalk, and appellant 

walked away. Miller suffered a total of seven gunshot wounds, 

two of which were fatal.

Appellant and Miller stood between four and ten feet away 

from each other when appellant fired on Miller. According to 

seven eyewitnesses, Miller had made no aggressive moves toward 

appellant or threatened him before appellant fired his gun, but 

one witness reported seeing some pushing and shoving. None of 

the witnesses saw any weapon in Miller’s hands or in the area 

where he fell, nor did police find a weapon of any kind on or 

around Miller.

Appellant testified that Miller approached him from 

behind, gesturing with his palm up and asking for money. 

Appellant felt Miller was pushing him toward a wall. Looking 

over his shoulder, appellant saw Miller reach into his pocket, and 

appellant took out his gun. Still with his back to Miller, 

appellant fired a warning shot into the ground. Appellant then

turned around to face Miller, who had balled his hands into fists. 

The men were about six to eight feet apart. Appellant told Miller 

to get away, but Miller ignored him. Appellant noticed a knife in 

Miller’s right hand and shot Miller in the right leg out of fear. 

But the shot appeared to have no effect, and Miller continued to 

 

3 Three eyewitnesses heard appellant say to Miller, “Give 

me back my money,” but one eyewitness testified that it was 

Miller who demanded money from appellant. Another eyewitness 

observed some pushing and shoving but could not hear what the 

men were saying.
5

advance. Appellant fired another shot at Miller’s other leg to 

make him fall, but Miller lunged at appellant, leaving appellant 

no choice but to aim higher and fire again. Appellant shot Miller 

three more times before walking away.

DISCUSSION

I. The Trial Court Properly Excluded Medical 

Records and Police Reports Pertaining to the 

Victim, as Well as the Defense Expert’s 

Testimony Based on Those Records

A. Procedural history

1. The motion for a new trial

Following appellant’s conviction for voluntary 

manslaughter in the second trial, appellant moved for a new trial. 

The basis for the motion was the prosecution’s delay until the end 

of trial in turning over evidence that Miller may have suffered 

from bipolar disorder or schizophrenia. (Brady v. Maryland

(1963) 373 U.S. 83, 87.) Attached as exhibits to the motion were 

Miller’s medical records and two police reports from Florida.

The medical records contained observations of Miller 

between August and November 1995, while he was housed in 

Pinellas County jail. The observations included descriptions of 

Miller as “psychotic,” “delusional,” and “paranoid,” and 

documented “very bizarre behavior,” including urinating and 

smearing feces on the walls. Doctors diagnosed Miller with 

paranoid schizophrenia, and on November 14, 1995, he was 

transferred to Florida State Hospital in Chattahoochee, Florida,

after a Pinellas County court found him incompetent to stand 

trial. The medical records included a California subpoena 

directed to the custodian of records for the Pinellas County 

Sheriff’s Office. In support of the new trial motion, defense 
6

counsel also submitted a declaration with two additional exhibits 

which included doctors’ reports from Miller’s stay at Florida State 

Hospital from 1995 to 1997.

One of the police reports was from the Tarpon Springs 

Police Department. It described an encounter with police on 

July 27, 1995, in which Miller put his hand in his pocket and told 

officers to shoot him. Miller threw something at police and 

struggled violently as an officer attempted to conduct a pat-down 

search. After two officers subdued him, Miller was arrested on 

suspicion of resisting arrest with violence. The second police 

report, titled, “Fort Lauderdale Police Department: Offense 

Incident Report,” described an incident on May 21, 1998, in which 

Miller reacted violently to officers who had awoken him when 

they found him sleeping on the beach. Miller resisted arrest, and 

police used pepper spray to bring him into custody.

At the hearing on the motion for a new trial, the defense 

psychiatric expert, Dr. Stephen Wilson, testified that the Florida 

medical records and police reports showed Miller had been found 

incompetent four times between 1995 and 1996, and the 

prevailing diagnosis across all the medical records was that 

Miller suffered from schizophrenia. He stated that a person 

suffering from schizophrenia typically hears imaginary voices and 

displays aggressive behavior. Dr. Wilson explained that 

schizophrenia is a lifelong illness that can be controlled with 

medication, but never cured. The medical records described 

Miller’s behavior “as hostile, arrogant and delusional” throughout 

his commitment, but there was no indication that Miller acted out 

violently in the psychology ward or the state hospital. The police 

reports told a slightly different story, showing Miller behaving 

aggressively on two occasions in contacts with police.
7

Dr. Wilson opined that Miller’s behavior in 2015 would 

likely be consistent with the behavior he exhibited in 1995 as 

documented in the medical records and police reports. However,

the doctor acknowledged that it is not possible to predict behavior 

on a particular night in 2015 based on 20-year-old documents.

The trial court (Judge Douglas W. Sortino) granted the new 

trial motion based on newly discovered evidence. In light of the 

jury’s acquittal on first and second degree murder, Judge Sortino

found that the jury must have accepted the defense to some 

extent, and concluded that “this additional information . . . could 

have, likely might have, resulted in a different verdict at trial.”

2. The trial court’s ruling on the admissibility of evidence of 

Miller’s mental illness and criminal history

Prior to the third trial, the prosecution sought to exclude 

the medical records, police reports, and any testimony by the 

defense expert based on those documents. The court (Judge 

Henry J. Hall) reviewed Dr. Wilson’s testimony from the new trial

motion along with the medical records and police reports. The 

court found the police reports were inadmissible hearsay under 

People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Noting the 

absence of any declaration or affidavit pursuant to Evidence Code 

section 15614 that would qualify the medical records under the 

business records exception, the court ruled the medical records 

inadmissible under Sanchez because they contained multiple 

layers of hearsay and did not fit under any hearsay exception. 

 

4 Undesignated statutory references are to the Evidence

Code.
8

The court further declared that the defense expert could not 

testify about the medical records.

During trial, defense counsel revisited the admissibility of 

the medical records. He advised the court that he had been

unable to obtain a certification of the records because they had 

been purged from the hospital’s records and the medical facility 

where Miller was treated had since closed. Nevertheless, “in light 

of the totality of the circumstances,” which included Judge 

Sortino’s ruling on the new trial motion, counsel asked the court 

to apply the pre-Sanchez rules for expert testimony and allow the 

expert to testify about Miller’s mental illness based on the 

contents of the medical records.

Finding the medical records to be case-specific hearsay, 

Judge Hall held the documents inadmissible under Sanchez.

Judge Hall added that he had strong reservations about the 

records’ reliability and would likely have excluded them even 

under the pre-Sanchez rules. The court reaffirmed its previous 

ruling prohibiting Dr. Wilson from relying on the medical records 

under section 802.5

B. Judge Sortino’s ruling granting the motion for a new 

trial had no bearing on the issue of whether the documents 

were admissible.

Appellant argues that in granting the new trial motion, 

Judge Sortino implicitly found “the defense could introduce the 

evidence of mental illness and aggression at the third trial.” 

 

5 Under section 802, a court in its discretion may prohibit

an expert from relying on case-specific hearsay to support her

trial testimony. (See People v. Williams (2016) 1 Cal.5th 1166, 

1200.)
9

Appellant is incorrect. The sole issue before the court in ruling on 

the new trial motion was whether the late disclosure of medical 

records and police reports prejudiced appellant by preventing him 

from fully investigating potentially material facts. The court’s 

decision on this issue was wholly separate from the question of 

whether particular records would be admissible in another trial. 

Indeed, as Judge Hall observed, there was nothing in the record 

of the new trial hearing “to suggest that Judge Sortino was 

making findings about the admissibility of these documents.”

Furthermore, even if Judge Sortino had made findings 

about the admissibility of the medical records and police reports, 

those evidentiary rulings would not have been binding on Judge 

Sortino himself or any other judge in a subsequent trial, for the 

trial “judge is free, in the exercise of sound judicial discretion, to 

alter a previous in limine ruling.” (Luce v. United States (1984) 

469 U.S. 38, 41–42; Ohler v. United States (2000) 529 U.S. 753, 

758, fn. 3 [“in limine rulings are not binding on the trial judge, 

and the judge may always change his mind during the course of a 

trial”]; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1174; 

Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096–1097, 1107.)

C. The medical records and police reports were

inadmissible hearsay, and under Sanchez, the defense 

expert could not testify about the contents of those records 

and reports.

1. The business records hearsay exception

Codified by section 1271, the business records exception to 

the hearsay rule permits admission of hearsay to prove an act, 

condition, or event if the following foundational requirements are 

met: “(a) The writing was made in the regular course of a 

business; [¶] (b) The writing was made at or near the time of the 

act, condition, or event; [¶] (c) The custodian or other qualified 
10

witness testifies to its identity and the mode of its preparation; 

and [¶] (d) The sources of information and method and time of 

preparation were such as to indicate its trustworthiness.” 

(§ 1271; People v. Zavala (2013) 216 Cal.App.4th 242, 246.) It is 

the burden of the party offering the evidence to establish that 

these foundational requirements have been met. (People v. 

Hovarter (2008) 44 Cal.4th 983, 1011.) The trial court is vested 

with broad discretion to determine whether a party has laid a 

proper foundation for admission of records under section 1271, 

and the court’s exercise of that discretion “ ‘will not be disturbed 

on appeal absent a showing of abuse.’ ” (Zavala, at pp. 245–246.)

Hospital records and similar documents are often 

admissible as business records, assuming a custodian of records 

or other duly qualified witness provides proper authentication to 

meet the foundational requirements of the hearsay exception. (In 

re R.R. (2010) 187 Cal.App.4th 1264, 1280; People v. Landau

(2016) 246 Cal.App.4th 850, 872, fn. 7.) Compliance with a 

subpoena duces tecum may dispense with the need for a live 

witness to establish the business records exception if the records 

are produced by the custodian or other qualified witness, together 

with the affidavit described in section 1561. (§ 1560, subd. (b); In 

re R.R., at p. 1280; In re Troy D. (1989) 215 Cal.App.3d 889, 903.) 

As relevant here, the affidavit must include “[a] description of the 

mode of preparation of the records” and a statement to the effect 

that “[t]he affiant is the duly authorized custodian of the records 

or other qualified witness and has authority to certify the 

records” and “[t]he records were prepared by the personnel of the 

business in the ordinary course of business at or near the time of 

the act, condition, or event.” (§ 1561, subd. (a)(1), (3), (5).)

The medical records appellant sought to introduce in this 

case were not authenticated in any way and plainly did not meet 
11

the requirements for the business records exception. Defense 

counsel advised the trial court that the medical records had been 

destroyed by the Florida state hospital that had generated and 

maintained them, and counsel had obtained copies of the records 

pursuant to a subpoena directed to the Pinellas County Sheriff’s 

Office in Florida. But defense counsel admitted that obtaining 

the requisite certification from the hospital would be impossible. 

And contrary to appellant’s assertion, the mere fact that the 

medical records had been subpoenaed did not make them reliable 

or otherwise admissible as business records. (People v. Blagg

(1968) 267 Cal.App.2d 598, 609–610 [in the absence of live 

testimony of a qualified witness, affidavit of an authenticating 

witness is required in order to lay a proper foundation for 

admissibility].)

The record on appeal in this case demonstrates that the 

sources of the medical records were third party entities which 

could supply no information about who prepared the documents, 

the circumstances and method of preparation, how the records 

were maintained by the hospital, or even whether the copies 

provided were the complete records. There being no proper 

foundation for the admission of the medical records under the 

business records exception to the hearsay rule, the trial court 

properly exercised its discretion in excluding the documents.

The police reports were similarly inadmissible. As a 

general rule, police reports do not fall under the business records 

exception. Our Supreme Court has explained: “Business records 

are defined as writings made in the regular course of business, at 

or near the time of the event, and created through sources of 

information and a method of preparation reflecting its 

trustworthiness. (§ 1271; see also § 1280 [record by public 

employee].) When a record is not made to facilitate business 
12

operations but, instead, is primarily created for later use at trial, 

it does not qualify as a business record.” (Sanchez, supra, 63 

Cal.4th at p. 695, fn. 21; see Melendez-Diaz v. Massachusetts

(2009) 557 U.S. 305, 321 [certain documents kept in regular 

course of business—like police reports generated by law 

enforcement officials—not subject to business or official records 

hearsay exceptions because “the regularly conducted business 

activity is the production of evidence for use at trial”].)

In any event, the absence of any affidavit or live testimony

from an authenticating witness in this case is fatal to appellant’s 

claim that the police reports were admissible as business records. 

Because there is nothing about these documents to indicate any 

particular degree of trustworthiness, the trial court did not abuse 

its discretion in excluding them.

2. Sanchez

In Sanchez, our Supreme Court clarified the limits on the 

extent to which an expert witness can relate and rely upon 

hearsay in support of an opinion, based upon the distinction 

between “ ‘case-specific hearsay’ ” and hearsay which is “part of 

the ‘general background information’ acquired by the expert 

through out-of-court statements as part of the development of his 

or her expertise.” (People v. Stamps (2016) 3 Cal.App.5th 988, 

995 (Stamps); Sanchez, supra, 63 Cal.4th at pp. 678, 686.) 

Sanchez defined case-specific facts as “those relating to the 

particular events and participants alleged to have been involved 

in the case being tried,” and held that an expert is prohibited 

from testifying to such facts if they are outside the expert’s 

personal knowledge and do not fall under an exception to the 

hearsay rule or have not been independently established by 

competent evidence. (Sanchez, at pp. 676–677, 686.)
13

Traditionally, an expert’s testimony concerning her general 

knowledge and background in her field of expertise, even if 

technically hearsay and offered for its truth, has not been subject 

to exclusion on hearsay grounds. (Sanchez, supra, 63 Cal.4th at 

pp. 676, 685.) But it falls to the trial court “to exclude expert 

testimony when necessary to prevent unreliable evidence and 

insupportable reasoning from coming before the jury.” (Stamps, 

supra, 3 Cal.App.5th at p. 994; Sargon Enterprises, Inc. v. 

University of Southern California (2012) 55 Cal.4th 747, 753.) 

Thus, “[w]here general background hearsay is concerned, the 

expert may testify about it so long as it is reliable and of a type 

generally relied upon by experts in the field, again subject to the 

court’s gatekeeping duty under Sargon.” (Stamps, at p. 996; 

Sanchez, at pp. 676–679.)

Sanchez also explained that an “expert may still rely on 

hearsay in forming an opinion, and may tell the jury in general 

terms that he did so.” (Sanchez, supra, 63 Cal.4th at p. 685.) 

However, “[i]t has long been the rule that an expert may not 

‘ “under the guise of reasons [for an opinion] bring before the jury 

incompetent hearsay evidence.” ’ ” (Id. at p. 679.) Thus, “[w]hat 

an expert cannot do is relate as true case-specific facts asserted in 

hearsay statements” about which the expert has no independent 

knowledge and for which there is no independent competent 

evidence, unless a hearsay exception applies. (Id. at p. 686.) In 

addition, an underlying fact that has not been proven by 

independent admissible evidence may not be included in a 

hypothetical question posed to the expert. (Id. at pp. 677, 686; 

Stamps, supra, 3 Cal.App.5th at p. 996.) “Like any other hearsay 

evidence, [case-specific hearsay considered by an expert] must be 

properly admitted through an applicable hearsay exception. 

Alternatively, the evidence can be admitted through an 
14

appropriate witness and the expert may assume its truth in a 

properly worded hypothetical question in the traditional manner.”

(Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted; People v. 

Jeffrey G. (2017) 13 Cal.App.5th 501, 510 (Jeffrey G.).)

Appellant maintains that Sanchez does not preclude expert 

testimony based on medical records and police reports showing 

Miller was schizophrenic and had been aggressive in contacts 

with Florida police 20 years earlier because “an expert may still 

rely on hearsay in forming an opinion and may tell the jury he did 

so in general terms, with a hypothetical including case specific 

facts.” What appellant proposes is not simply informing the jury 

“in general terms” what the expert relied on, however. Rather, by 

appellant’s reasoning, the exception would swallow the rule by 

allowing an expert to rely on case-specific hearsay under the 

fiction that it is not offered for its truth—precisely what Sanchez

prohibits. As the high court explained, “There is a distinction to 

be made between allowing an expert to describe the type or 

source of the matter relied upon as opposed to presenting, as fact, 

case-specific hearsay that does not otherwise fall under a 

statutory exception.” (Sanchez, supra, 63 Cal.4th at p. 686.) The 

former properly allows the jury to evaluate the probative value of 

the expert’s testimony, while the latter purports to transform 

otherwise inadmissible hearsay into competent evidence offered 

for its truth. (Id. at pp. 683, 686.) In short, Sanchez precluded 

the defense expert from relating to the jury the contents of the 

medical records and police reports pertaining to the victim in this 

case.

The trial court also properly excluded the defense expert’s 

testimony based on the documents, for without disclosure of the 

contents of the records, any opinion the expert might have offered

would have been irrelevant. As Sanchez recognized, “When an 
15

expert relies on hearsay to provide case-specific facts, considers 

the statements as true, and relates them to the jury as a reliable 

basis for the expert’s opinion, it cannot logically be asserted that 

the hearsay content is not offered for its truth.” (Sanchez, supra, 

63 Cal.4th at p. 682.) Thus, the validity of the expert’s opinion 

depends entirely on the truth of the hearsay: “If the underlying 

hearsay is not true, the opinion is rendered irrelevant to the case 

at hand.” (Jeffrey G., supra, 13 Cal.App.5th at p. 509; Sanchez, at 

pp. 682–683.)

II. Remand Is Not Warranted for Reconsideration 

of the Firearm Enhancement

Appellant contends the case must be remanded for 

reconsideration of his firearm enhancement pursuant to Senate 

Bill No. 620, which gave trial courts discretion to strike firearm 

enhancements when the law became effective on January 1, 2018. 

Respondent concedes that the new legislation applies 

retroactively to cases in which judgment is not yet final on 

appeal. (See In re Estrada (1965) 63 Cal.2d 740, 748 [for a nonfinal conviction, “where the amendatory statute mitigates 

punishment and there is no saving clause, the rule is that the 

amendment will operate retroactively so that the lighter 

punishment is imposed”]; People v. Francis (1969) 71 Cal.2d 66, 

75–78 [where statute enacted during pending appeal gave trial 

court discretion to impose a lesser penalty, remand was required 

for resentencing].) Nevertheless, the Attorney General maintains 

that remand in this case is inappropriate because the trial court’s 

statements on the record affirmatively demonstrate that the trial 

court would not exercise its new discretion to strike appellant’s 

firearm enhancement. We agree.

The People rely on People v. Gutierrez (1996) 48 

Cal.App.4th 1894 (Gutierrez) to argue that no purpose would be 
16

served by a remand in this case. In Gutierrez, the Court of

Appeal declined remand to allow the trial court to exercise its 

new discretion under Romero6 to strike a prior conviction under 

the “Three Strikes” law. The court held that Romero did not 

require remand where the sentencing court had unequivocally 

indicated that it would not have exercised its discretion to strike 

the Three Strikes prior even if it had believed it could have done 

so. (Gutierrez, at p. 1896.) Given that the trial court had 

properly exercised its sentencing discretion to impose the 

maximum term, the court concluded that “no purpose would be 

served in remanding for reconsideration.” (Ibid.) Also in the 

Romero context, our Supreme Court has unambiguously held that 

“remand is not required where the trial court’s comments indicate 

that even if it had authority to strike a prior felony conviction 

allegation, it would decline to do so.” (People v. Fuhrman (1997) 

16 Cal.4th 930, 944; Romero, supra, 13 Cal.4th at p. 530, fn. 13; 

see People v. Gamble (2008) 164 Cal.App.4th 891, 901 [if “ ‘the 

record shows that the trial court would not have exercised its 

discretion even if it believed it could do so, then remand would be 

an idle act and is not required’ ”].)

Under Penal Code section 12022.5, subdivision (a), the trial 

court in this case had discretion to impose a 3-, 4-, or 10-year 

prison term for the firearm enhancement in count 1. In choosing 

the 10-year enhancement, the trial court identified several 

aggravating factors, including the lack of significant provocation, 

appellant’s disposition for violence, his lack of any remorse, and 

his “callous reaction” after shooting an unarmed homeless man 

 

6 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
17

six or seven times. These factors, the court said, far outweighed 

any mitigating factors. The court also noted that appellant “did 

not hesitate to shoot this unarmed homeless guy” multiple times, 

and described appellant’s attitude as “pretty haunting.” Thus, 

when it imposed the sentence enhancement under Penal Code 

section 12022.5, subdivision (a), the court declared, “[T]his is as 

aggravated as personal use of a firearm gets,” and “the high term 

of 10 years on the enhancement is the only appropriate sentence 

on the enhancement.”

In light of the trial court’s express consideration of the 

factors in aggravation and mitigation, its pointed comments on 

the record, and its deliberate choice of the highest possible term 

for the firearm enhancement, there appears no possibility that, if 

the case were remanded, the trial court would exercise its 

discretion to strike the enhancement altogether. We therefore 

conclude that remand in these circumstances would serve no 

purpose but to squander scarce judicial resources. (Fuhrman, 

supra, 16 Cal.4th at p. 946; Gutierrez, supra, 48 Cal.App.4th at 

p. 1896; cf. People v. McDaniels (2018) 22 Cal.App.5th 420, 423

[remand proper where record contains no clear indication of trial 

court’s intent not to strike firearm enhancement].)
18

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.