P. v. Tellez

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Filed 7/6/20 P. v. Tellez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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THE PEOPLE,
Plaintiff and Respondent,
v.
ELPIDIO TELLEZ,
Defendant and Appellant.
C089819
(Super. Ct. No. 12F07541)
A trial court denied defendant Elpidio Tellez’s request to strike a firearm
enhancement under Penal Code section 12022.53; statutory section references that follow
are to the Penal Code unless otherwise stated. Defendant appeals that denial, arguing that
the court: (1) erred in excluding evidence of his activities in prison when considering
whether to strike the enhancement, and (2) failed to consider whether it should reduce,
rather than strike, the enhancement. We disagree with both claims and affirm the
judgment.

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FACTS AND PROCEEDINGS
Defendant shot and killed the victim outside a bar. At trial, defendant claimed that
he acted in self-defense. After his conviction of second degree murder with personal and
intentional discharge of a firearm causing death (§§ 187, 12022.53, subd. (d); count one),
possession of a firearm by a felon (§ 29800, subd. (a)(1); count two), and receipt of stolen
property (§ 496, subd. (a); count three), defendant appealed. We affirmed the judgment
but remanded the case so that the trial court could consider whether to exercise its
discretion under the newly enacted section 12022.53, subdivision (h) to strike the firearm
enhancement. (People v. Tellez (Jan. 16, 2019, C077915) [nonpub. opn.].)
The court held a hearing following the remand. Defense counsel brought
witnesses to testify at the hearing, including witnesses that could speak to defendant’s
activities while he had been in state prison. The court questioned the relevance of such
evidence, saying: “If I was at the sentencing, whenever this was sentenced, I wouldn’t
have had that information before me. If I’m only supposed to decide what I would have
done at that time, why would whatever he’s done since that time matter for the purposes
of mitigation?” The court eventually allowed defense counsel to question two witnesses.
The first witness, defendant’s ex-wife, testified to defendant’s activities raising his
children, nieces, and nephews. She also briefly spoke about defendant’s activities in
prison. Specifically, he coached sports teams at the prison, had received educational
certificates, and was serving as a religious cleric at the institution. On cross-examination,
the prosecutor elicited testimony that defendant had previously pleaded no contest to
false imprisonment arising out of a domestic violence incident with his ex-wife. The
second witness, defendant’s son, testified to defendant’s efforts to raise him, coach his
sports teams, and teach him about accountability and responsibility.
The court also reviewed seven reference letters submitted by defendant’s family
members. One letter described some of defendant’s activities while incarcerated, noting

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that he had completed several Alternative to Violence programs, was participating in
educational programming, assisting other inmates in earning their GEDs, was an athletic
coach for baseball, basketball, and football programs, and was a clerk for several
different religious denominations.
The court denied the request to strike the enhancement, saying, in part:
“Throughout all of these letters that were presented to the Court, over and over, and with
the testimony I heard, there is a constant refrain about things the defendant did for them.
He was a model of somebody who is sort of upstanding, somebody who, as a coach, in
his players inspires accountability and courage, and somebody who would encourage
people to do the right thing and stand up and be proud of yourself and who you are, and
be all that you can be. . . . He might be a very fine man, but what he did was, after
shooting this man down in front of a bar, he ran. He ran and he hid. And the police had a
pretty significant manhunt in order to find him. He tossed the gun, and tried to get rid of
the evidence. And I might add, he was a convicted felon for domestic violence against
his wife . . . he was a convicted felon, and never should have had a gun, and he never
should have gone to that bar. When he saw [the victim], he should have gone the other
direction. That’s all he had to do, was go away. He did not have to confront him. He did
not have to bring a gun. When you bring a gun to a conversation or a disagreement, you
are bringing it because you know you are going to use it. You prepare yourself mentally
for having to use it. And that’s what he did. He prepared himself. He armed himself.
He had a loaded gun that was a stolen gun . . . . The victim is dead, and you shot him
down. You shot him in the back, and you ran from the scene, and those facts do not
warrant the Court striking this enhancement.”

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DISCUSSION
I
Evidence Considered on Remand
Defendant argues that the trial court was required to consider evidence of his
conduct in prison because such evidence is customary in sentencing decisions and would
demonstrate that defendant is “on the road to reformation.” The People respond that the
remand was limited in scope, the court had discretion to limit the evidence, and, in any
case, any error was harmless. If there was error here, we agree that it was harmless.
Both parties agree that any error in this instance only warrants reversal if it was
prejudicial under the standard set forth in People v. Watson (1956) 46 Cal.2d 818.
(People v. Partida (2005) 37 Cal.4th 428, 439; People v. Dobbins (2005)
127 Cal.App.4th 176, 182.) Under Watson, we “ask whether it is reasonably probable the
verdict would have been more favorable to the defendant absent the error.” (Partida, at
p. 439.) Our “review focuses not on what a reasonable [factfinder] could do, but what
such a [factfinder] is likely to have done in the absence of the error under consideration.
In making that evaluation, an appellate court may consider, among other things, whether
the evidence supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result.” (People v.
Breverman (1998) 19 Cal.4th 142, 177.) When deciding whether to strike a sentence
enhancement, a trial court is entitled to consider general sentencing objectives,
circumstances in aggravation and mitigation listed in the California Rules of Court, and
“any other relevant consideration.” (Cal. Rules of Court, rule 4.428(b); People v.
Pearson (2019) 38 Cal.App.5th 112, 117.)
As the trial court explained in its decision, defendant was previously convicted of
domestic violence against his then wife. As a convicted felon, he was not entitled to have

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a firearm, but he still procured a stolen gun for the purpose of confronting the victim and
then shooting him in the back. He could have opted out of the crime at several junctures,
but still proceeded to shoot and kill the victim. After he had killed the victim, he ran, hid,
and tried to dispose of incriminating evidence, leading police on a significant manhunt to
find him. Finally, the court contrasted defendant’s situation with the victim’s: “I know
being in prison is hardly the type of life that anybody wants to lead, but are you [sic] not
dead. The victim is dead, and you shot him down. You shot him in the back, and you ran
from the scene, and those facts do not warrant the Court striking this enhancement.”
Moreover, the court did, in fact, consider some evidence of defendant’s
postconviction activities in prison. Defendant’s ex-wife testified that he was coaching
sports teams in prison and was working to be a “role model for the guys in there, and he
has helped shape a lot of the guys even in prison to help them on a better way and path in
life.” Similarly, her written reference letter explained that defendant was participating in
educational programming in prison and had led the prison football team to a
championship in 2018. The court did not give great weight to these statements, saying
that although the reference letters and testimony cast him as a role model who inspired
others to “accountability and courage,” the facts of his crime, which involved shooting a
man in the back and fleeing afterwards, undercut those statements.
Given the weight of the evidence the court cited in its decision, it is unlikely that
additional evidence of defendant’s conduct in prison would have altered the result of the
hearing. We conclude that it is not reasonably probable that the court’s decision would
have been more favorable to the defendant had he been permitted to present more
evidence of his postconviction activities. Any error was thus harmless.

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II
Reduction of the Firearm Enhancement
Defendant contends that the trial court did not understand that it had the ability to
reduce his firearm enhancement, rather than strike it wholesale, and thus could not have
exercised informed discretion, as it was required to do. In support of his argument,
defendant points to People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), a recent
decision from the First District Court of Appeal, that held that a court exercising its
discretion to strike an enhancement under section 1385 can instead opt to impose a lesser
enhancement in the interest of justice. Defendant notes that People v. Tirado (2019)
38 Cal.App.5th 637, review granted Nov. 13, 2019, S257658 (Tirado), a decision from
the Fifth District Court of Appeal, has taken a contrary position, but urges us to adopt the
Morrison approach. We agree with Tirado, and decline defendant’s invitation.
“ ‘Section 12022.53 sets forth the following escalating additional and consecutive
penalties, beyond that imposed for the substantive crime, for use of a firearm in the
commission of specified felonies, including . . . murder: a 10-year prison term for
personal use of a firearm, even if the weapon is not operable or loaded (id., subd. (b)); a
20-year term if the defendant “personally and intentionally discharges a firearm” (id.,
subd. (c)); and a 25-year-to-life term if the intentional discharge of the firearm causes
“great bodily injury” or “death, to any person other than an accomplice” (id., subd. (d)).
For these enhancements to apply, the requisite facts must be alleged in the information or
indictment, and the defendant must admit those facts or the trier of fact must find them to
be true.’ [Citation.] Section 12022.53, subdivision (f) provides, ‘Only one additional
term of imprisonment under this section shall be imposed per person for each crime. If
more than one enhancement per person is found true under this section, the court shall
impose upon that person the enhancement that provides the longest term of
imprisonment . . . .’ ” (Morrison, supra, 34 Cal.App.5th at p. 221.) Under section

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12022.53, subdivision (h), “ ‘The court may, in the interest of justice pursuant to Section
1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section. The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.’ ” (Morrison, at pp. 221-222,
italics added.)
In Morrison, as in this case, the jury only found true an enhancement allegation
under section 12022.53, subdivision (d). (Morrison, supra, 34 Cal.App.5th at p. 221.)
The trial court declined to strike the enhancement, and defendant argued on appeal that
“the court did not understand the scope of its discretion,” in that it “had the discretion to
modify the enhancement from that established by section 12022.53, subdivision (d),
which carries a term of 25 years to life, to a ‘lesser included’ enhancement under section
12022.53, subdivision (b) or (c), which carry lesser terms of 10 years or 20 years,
respectively.” (Ibid.) The First District Court of Appeal agreed, based, in part, on cases
that concluded courts “may impose a ‘lesser included’ enhancement that was not charged
in the information when a greater enhancement found true by the trier of fact is either
legally inapplicable or unsupported by sufficient evidence.” (Id. at p. 222.) Morrison
also relied on an oblique reference by our Supreme Court to the “wide range of
sentencing choices” available to a trial court using section 1385 to strike a sentence
enhancement in People v. Marsh (1984) 36 Cal.3d 134, 144. (Morrison, at p. 223.)
Following Morrison, however, both the Fifth District Court of Appeal in Tirado, supra,
38 Cal.App.5th 637, review granted, and the Second District Court of Appeal in People v.
Garcia (2020) 46 Cal.App.5th 786, review granted June 10, 2020, S261772, have issued
opinions concluding that trial courts only have authority to strike or dismiss a section
12022.53 enhancement, rather than modify it.
We find Tirado and Garcia more persuasive. The plain language of both statutes
at issue, sections 1385 and 12022.53, subdivision (h), permit a court to “strike or dismiss
the enhancement,” but neither statute “conveys the power to change, modify, or substitute

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a charge or enhancement.” (Tirado, supra, 38 Cal.App.5th. at p. 643, review granted.)
Other statutes that permit such modification explicitly state so. (See, e.g., §§ 1260 [“The
court may reverse, affirm, or modify a judgment or order appealed from, or reduce the
degree of the offense or attempted offense or the punishment imposed . . . .”], 1181 [“the
court may modify the verdict, finding or judgment accordingly”]; Tirado, at p. 643,
review granted.)
Moreover, the case law that Morrison cites to justify the proposition that a “court
may impose a ‘lesser included’ enhancement that was not charged in the information
when a greater enhancement found true by the trier of fact is either legally inapplicable or
unsupported by sufficient evidence” did not rely on section 1385 and was thus not
restricted by section 1385’s language. (Morrison, supra, 34 Cal.App.5th at p. 222.) And,
those cases only imposed the lesser included enhancements when the greater
enhancement was found legally inapplicable or supported by insufficient evidence; they
do not stand for the proposition that a court may “substitute a perfectly valid greater
enhancement for a lesser included enhancement.” (People v. Garcia, supra,
46 Cal.App.5th at p. 793, review granted.)
Nor do we view Marsh as supportive of the Morrison court’s position. In Marsh,
our Supreme Court considered a situation with two sentence enhancement allegations and
noted that section 1385 provided a “wide range of sentencing choices” other than striking
or declining to strike both allegations. (People v. Marsh, supra, 36 Cal.3d at p. 144.) But
this statement does not mean that a trial court could modify, rather than strike the
enhancement allegations. Rather, it is describing a situation where the trial court could
choose to strike one of the two enhancements it was considering but leave the other
intact. (Ibid.)
Here, the prosecution charged only a sentence enhancement allegation under
section 12022.53, subdivision (d), and the jury found that allegation true. Neither party
contends that the true finding is legally inapplicable or supported by insufficient

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evidence. As explained above, the trial court did not have the ability to modify the
enhancement, and we thus conclude that the court properly understood the scope of its
discretion when it declined to strike defendant’s section 12022.53, subdivision (d)
enhancement.
DISPOSITION
The judgment is affirmed.
HULL, J.
We concur:
RAYE, P. J.
MURRAY, J.

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