Filed 9/15/20 P. v. Trice CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

NOAH RANDY TRICE,

 Defendant and Appellant.

2d Crim. No. B302249

(Super. Ct. No. BA443150)

(Los Angeles County)

Noah Randy Trice appeals from the judgment entered after 

a jury convicted him of second degree murder. (Pen. Code, 

§§ 187, 189.)1 The jury found true an enhancement allegation 

that, “within the meaning of Penal Code section 12022.53(d),” he 

had “personally and intentionally discharged a firearm” causing 

death to a human being. The trial court denied appellant’s 

motion to strike the firearm enhancement. It sentenced him to 

1 Unless otherwise stated, all statutory references are to 

the Penal Code.
2

15 years to life for the second degree murder plus a consecutive 

term of 25 years to life for the firearm enhancement. 

Appellant contends that the trial court abused its 

discretion in denying his motion to strike the enhancement. He 

also claims that, pursuant to People v. Dueñas (2019) 30 

Cal.App.5th 1157 (Dueñas), the matter must be remanded so that 

the trial court can conduct a hearing on his ability to pay 

assessments and fines. We affirm.

Facts

One afternoon Doris Diaz was walking through a park 

when she saw a younger man and an older man standing “really, 

really close to each other, . . . facing each other.” Diaz turned 

around. She heard four shots fired “really fast, like boom, boom, 

boom, boom.” Diaz turned around again so that she was facing 

the two men. The older man was lying on the ground. The 

younger man “walk[ed] over the” older man, “and he lifted his 

jacket and he put a gun in his waist.” The younger man fled in 

the direction of “the metro station.” Diaz identified appellant as 

the younger man. 

Brittish Stewart and her three children were at the park. 

While watching her children play in a playground, she heard 

“[t]wo pops” followed by a third pop. In “the picnic area” about 20 

feet away from her, she saw appellant standing with his “right 

arm extended directly forward from [his] body and down at a 45-

degree angle, pointing towards the ground.” Another man was 

sitting on a bench five to seven feet in front of appellant. The 

other man had been there when Stewart arrived at the park. He 

“was just sitting there” and was not “interact[ing] with anybody.” 

Stewart heard a fourth pop and saw appellant running away. 
3

She walked over to the other man. “He was on the ground, and 

[Stewart] saw blood.” 

Sandra Canote was inside her office when she heard two to 

three gunshots coming from the park. She looked out the window 

and saw one person standing over another person lying on the 

ground. The person who was standing had his right arm fully 

extended “at a 45-degree angle . . . pointing down towards the 

ground.” Canote heard a fourth gunshot, after which the person 

who had been standing ran away. 

The victim had four gunshot wounds. A wound to the head 

was fatal. 

Police officers were informed that a suspect in the shooting 

had “entered the metro expo line and was traveling westbound 

from the location.” The police stopped the train and went “from 

car to car to sweep it” in search of the suspect. When they 

entered “the second train unit,” appellant “approached [them] 

with his hands up.” 

During interrogation by the police, appellant said: “I just 

got, like, really angry for some reason. I just walked over to [the 

victim] and I can’t even remember . . . what [he] said, but . . . I 

saw him going for his waist. And I just . . . shot him . . . . [H]is 

body was on the fucking floor.” “I didn’t want to fucking shoot 

him. But I didn’t want to get shot . . . .” 

Appellant testified as follows: After entering the park, he 

saw the victim sitting on a bench in the picnic area and staring at 

him. The victim got up from the bench and walked toward 

appellant. They got into a “heated” argument. The victim 

reached toward his waist, and appellant “thought he was 

reaching for a gun.” Although appellant did not see a gun, he 

“thought [he] was going to be shot.” Appellant pulled out his gun 
4

and shot the victim. When appellant saw the police in the train, 

he walked toward them and said, “‘It’s me. I’m sorry.’” 

Factors to be Considered in Determining Whether

Court Should Strike a Firearm Enhancement

“In addition to the factors expressly listed for determining 

whether to strike enhancements listed in California Rules of 

Court, rule 4.428(b), the trial court is also to 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 . . . rules 4.421 and 4.423. ‘[U]nless the 

record affirmatively reflects otherwise,’ the trial court is deemed 

to have considered the factors enumerated in the California Rules 

of Court. (Cal. Rules of Court, rule 4.409.) Among other factors 

the court may have considered were that ‘[t]he crime involved 

great violence . . . threat of great bodily harm, or other acts 

disclosing a high degree of cruelty, viciousness, or 

callousness,’ . . . and that the ‘victim was particularly vulnerable.’

(Cal. Rules of Court, rule 4.421(a)(1)-(3).)” (People v. Pearson

(2019) 38 Cal.App.5th 112, 117 (Pearson).)

Trial Court’s Reasons for Denying 

Motion to Strike Firearm Enhancement

In declining to exercise its discretion to strike the firearm 

enhancement, the trial court said it had considered the following 

aggravating factors: (1) “[T]he crime involved great violence, 

great bodily harm, threat of great bodily harm and other acts 

disclosing a high degree of cruelty, viciousness and callousness.” 

(2) “[T]he victim was particularly vulnerable.” (3) Appellant “has 

engaged in violent conduct that indicates he is a serious danger 

to society.” (4) Appellant has another pending case for possessing 

a weapon while in custody. (5) Appellant’s “prior convictions as 
5

an adult or sustained petitions as [a] juvenile . . . are of 

increasing seriousness.” The court found only a single mitigating 

factor: “he has no record or has [an] insignificant record of 

criminal conduct.” 

The court continued, “Balancing the circumstances in 

aggravation versus the circumstances in mitigation, I am going 

[t]o decline to exercise my discretion [to strike] the firearm 

[enhancement].” Appellant did not object to the trial court’s 

statement of reasons for not striking the enhancement. 

Standard of Review

“[S]ection 12022.53, subdivision (h), [gives] 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.’ (§ 12022.53, 

subd. (h).) [¶] . . . ‘In reviewing for abuse of discretion, we are 

guided by two fundamental precepts. First, “‘[t]he burden is on 

the party attacking the sentence to clearly show that the 

sentencing decision was irrational or arbitrary. [Citation.] In the 

absence of such a showing, the trial court is presumed to have 

acted to achieve legitimate sentencing objectives, and its 

discretionary determination to impose a particular sentence will 

not be set aside on review.’” [Citation.] Second, a “‘decision will 

not be reversed merely because reasonable people might disagree. 

“An appellate tribunal is neither authorized nor warranted in 

substituting its judgment for the judgment of the trial judge.”’” 

[Citation.] Taken together, these precepts establish that a trial 

court does not abuse its discretion unless its decision is so 

irrational or arbitrary that no reasonable person could agree with 

it.’ [Citation.]” (Pearson, supra, 38 Cal.App.5th at p. 116.)
6

Appellant Forfeited Claim that the

Trial Court Abused Its Discretion

Appellant claims that “the trial court abused its discretion 

by relying on aggravating factors unsupported by the evidence 

and failing to consider mitigating factors supported by the 

evidence.” The claim is forfeited because appellant did not object 

to the trial court’s statement of reasons for denying his motion to 

strike the enhancement. 

“In [People v.] Scott [(1994) 9 Cal.4th 331, 353 (Scott), the] 

court . . . announced a new rule: A party in a criminal case may 

not, on appeal, raise ‘claims involving the trial court’s failure to 

properly make or articulate its discretionary sentencing choices’ 

if the party did not object to the sentence at trial. [Citation.] The 

rule applies to ‘cases in which the stated reasons allegedly do not 

apply to the particular case, and cases in which the court

purportedly . . . misweighed the various factors, or failed to state 

any reasons or give a sufficient number of valid reasons’ 

[citation], but the rule does not apply when the sentence is legally 

unauthorized [citation].” (People v. Gonzalez (2003) 31 Cal.4th 

745, 751.) Here, the court’s refusal to strike the firearm

enhancement did not result in the imposition of a legally 

unauthorized sentence. 

Even if Appellant Had Objected, the Trial Court

Would Not Have Prejudicially Abused Its Discretion

Even if appellant had properly objected to the trial court’s 

statement of reasons, he would not be entitled to a reversal 

because he has failed to show that the trial court prejudicially 

abused its discretion. Appellant contends that the court “abused 

its discretion by relying on the [aggravating factor of the] 

particular vulnerability of the victim, where that factor was not 
7

supported by the evidence.” (Bold omitted.) We disagree. 

Irrespective of whether the victim was particularly vulnerable 

when the first three shots were fired, evidence supports his 

particular vulnerability when the fourth shot was fired. Based on 

the testimony of Sandra Canote, the court could reasonably infer 

that appellant fired the fourth shot after the victim had been shot 

three times and had collapsed to the ground. According to 

Canote, appellant was standing over the victim with his right 

arm fully extended “at a 45-degree angle . . . pointing down 

towards the ground.” Canote then heard a fourth gunshot. All 

four shots struck the victim. Canote’s version of events is 

corroborated by Brittish Stewart’s testimony that, before she 

heard the fourth gunshot, she saw appellant standing with his 

“right arm extended directly forward from [his] body and down at 

a 45-degree angle, pointing towards the ground.” 

Appellant argues that the trial court abused its discretion 

in finding that his “prior convictions as an adult or sustained 

petitions as [a] juvenile . . . are of increasing seriousness.” We 

agree that the evidence does not support this aggravating factor. 

Appellant was 18 years old at the time of the murder. According 

to the probation report, he had no juvenile history and no prior 

adult convictions. The only entry in the report under “Adult 

History” is the filing of a criminal complaint for driving without a 

license and resisting a police officer. The report states that the 

disposition of these charges is “unknown.”

“When [the trial] court errs in identifying or articulating its 

sentencing choices, [and, unlike the present case, there is no 

forfeiture by a failure to object,] the reviewing court has no choice 

but to remand the matter for resentencing unless it finds the 

error nonprejudicial, i.e., it is ‘not reasonably probable that a 
8

more favorable sentence would have been imposed in the absence 

of the error.’ [Citation.]” (Scott, supra, 9 Cal.4th at p. 355.) 

In view of the totality of the circumstances, it is not 

reasonably probable that the trial court would have struck the 

firearm enhancement had it not made the erroneous finding that 

appellant’s “prior convictions as an adult or sustained petitions 

as [a] juvenile . . . are of increasing seriousness.” The erroneous 

finding was rendered harmless by the court’s contrary finding 

that, as a mitigating factor, “he has no record or has [an] 

insignificant record of criminal conduct.” Moreover, it is 

important to consider that the shooting occurred in the picnic 

area of a park near a playground where children were playing. 

Appellant’s violent conduct endangered the safety of the children. 

When Brittish Stewart heard the gunshots, her “kids [were] all 

playing.” She saw “other people grabbing their stuffed dolls and 

kids and running.” Stewart was sitting on a “concrete little wall” 

about 20 feet away from the shooting. The wall surrounded the 

playground. 

Finally, appellant maintains that the trial court abused its 

discretion by failing to consider the following mitigating factors: 

(1) He “‘voluntarily acknowledged wrongdoing before arrest or at 

an early stage of the criminal process.’ ([Cal. Rules of Court,] 

Rule 4.423(b)(3).)” (2) Witnesses and letter writers vouched for 

his good, nonviolent character. (3) “At the sentencing hearing, 

appellant again accepted responsibility and expressed his 

remorse.” “‘The court is presumed to have considered all relevant 

factors unless the record affirmatively shows the contrary.

[Citations.]’ [Citation.] No contrary showing has been made 

here.” (People v. Sperling (2017) 12 Cal.App.5th 1094, 1102.)
9

People v. Dueñas

Defense counsel did not object to the trial court’s imposition 

of a $40 court operations assessment (§ 1465.8), a $30 criminal 

conviction assessment (Gov. Code, § 70373), a $300 restitution 

fine (§ 1202.4), and a $300 parole revocation restitution fine 

(§ 1202.45). Relying on Dueñas, supra, 30 Cal.App.5th 1157, 

appellant contends that the imposition of these assessments and 

fines “without a prior determination that [he] had the present 

ability to pay them violated [his] right to due process.” In Dueñas

the “court held it violated due process under both the United 

States and California Constitutions to impose a court operations 

assessment as required by Penal Code section 1465.8 or 

the court facilities assessment mandated by Government Code 

section 70373 . . . without first determining the convicted 

defendant’s ability to pay.” (People v. Castellano (2019) 33 

Cal.App.5th 485, 488-489.)

Appellant notes, “The Dueñas opinion was issued in

January of 2019, months prior to appellant’s sentencing on June

28, 2019.” Thus, defense counsel should have been aware of

Dueñas at the time of sentencing. Because counsel did not object

to the assessments and fines, the Dueñas issue is forfeited. 

(People v. Abrahamian (2020) 45 Cal.App.5th 314, 338; People v.

Torres (2019) 39 Cal.App.5th 849, 860; People v. Gutierrez (2019) 

35 Cal.App.5th 1027, 1033; People v. Frandsen (2019) 33 

Cal.App.5th 1126, 1153-1155; People v. Bipialaka (2019) 34 

Cal.App.5th 455, 464; People v. Avila (2009) 46 Cal.4th 680, 728-

729.)

Appellant claims that counsel’s failure to object denied him 

his constitutional right to the effective assistance of counsel. 

When, as here, “the record on appeal fails to show why counsel 
10

acted or failed to act in the instance asserted to be ineffective, . . .

unless there simply could be no satisfactory explanation, the 

claim [of ineffective counsel] must be rejected on appeal.” (People 

v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)

There is a satisfactory explanation why counsel did not 

object to the imposition of the assessments and fines. In view of 

appellant’s lengthy prison sentence, counsel could have 

reasonably concluded that appellant would be able to pay the 

assessments and fines from his prison wages. “‘“Ability to pay 

does not necessarily require existing employment or cash on 

hand.” [Citation.] “[I]n determining whether a defendant has 

the ability to pay a restitution fine, the court is not limited to 

considering a defendant’s present ability but may consider a 

defendant's ability to pay in the future.” [Citation.] This 

include[s] the defendant’s ability to obtain prison wages . . . . 

[Citation.]’ [Citations.]” (People v. Aviles (2019) 39 Cal.App.5th 

1055, 1076.)

“Nothing in this record suggests [appellant] might be 

unable to work, or that [he] might be ineligible for prison work 

assignments. As such, we can infer that [he] will have the 

opportunity to earn prison wages and [he] can start paying these 

financial obligations. [Citations.] [¶] ‘Prison wages range from 

$12 to $56 per month, depending on the prisoner's skill level.’

[Citations.]” (People v. Lowery (2020) 43 Cal.App.5th 1046, 1060.) 

We therefore reject appellant’s claim that he was denied the 

effective assistance of counsel.

Disposition

The judgment is affirmed.
11

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.
Craig Richman, Judge

Superior Court County of Los Angeles

______________________________

Kathy R. Moreno, 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, Senior 

Assistant Attorney General, Steven D. Matthews, Supervising 

Deputy Attorney General, Michael J. Wise, Deputy Attorney 

General, for Plaintiff and Respondent.