P. v. Lucero

Filed 12/7/20 P. v. Lucero CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CHERYL LYNN LUCERO,
Defendant and Appellant.
F079788
(Super. Ct. No. CRF44425)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Smith, J. and Meehan, J.

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2.
Defendant Cheryl Lynn Lucero stands convicted of first degree murder with a
firearm enhancement. On appeal, defendant contends that the trial court failed to
exercise its discretion to strike the 25-years-to-life firearm enhancement and impose a
lesser enhancement. The People argue the trial court had no such discretion and, in any
event, would not have stricken the 25-years-to-life firearm enhancement and imposed a
lesser firearm enhancement even if it had the discretion to do so. We affirm.
PROCEDURAL SUMMARY1
The Tuolumne County District Attorney charged defendant with the murder of
Rick Roberts and alleged various firearm enhancements. (Pen. Code, §§ 187, subd. (a),
12022.5, subd. (a), 12022.53, subds. (b)–(d).)2 The jury found defendant guilty of first
degree murder and determined that she personally and intentionally discharged a firearm,
resulting in Roberts’s death. (§ 12022.53, subd. (d).) The jury did not make findings on
the lesser firearm enhancements. The trial court sentenced defendant to a term of
25 years to life for murder and a consecutive term of 25 years to life for the firearm
enhancement.
On January 23, 2019, we vacated defendant’s sentence and remanded for
resentencing in light of Senate Bill No. 620 (2017–2018 Reg. Sess.; Stats. 2017, ch. 682,
§ 1), which granted trial courts the discretion to strike firearm enhancements if justice so
requires. (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
On August 2, 2019, the trial court declined to strike the 25-years-to-life firearm
enhancement and reimposed the original sentence.
On August 7, 2019, defendant filed a notice of appeal.
1 On August 17, 2020, this court took judicial notice of our prior opinion in People
v. Lucero (Jan. 23, 2019, F072676) [nonpub. opn.]. On our own motion, we take judicial
notice of the appellate record in that case. (Evid. Code, §§ 452, subd. (d), 459.)
2 All further statutory references are to the Penal Code unless otherwise stated.

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3.
FACTUAL SUMMARY
Roberts was married. Defendant met Roberts in 2009 or 2010. At some point,
defendant and Roberts may have been involved in an extramarital romantic and sexual
relationship. Defendant may also have stalked Roberts and his family. Roberts drove a
race car. Defendant had that race car tattooed on her hip, kept photographs of Roberts
and a painting of his car in “shrine” in her apartment, told people that he was her
boyfriend, and created a handwritten wedding announcement for her marriage to Roberts.
On February 16, 2014, defendant shot Roberts twice, killing him. Defendant
eventually admitted shooting Roberts, but claimed she accidentally fired the gun while
trying to scare him. When defendant was told she was under arrest, she recanted and
blamed an ex-boyfriend for the shooting. At trial, defendant testified that she had lost the
gun before Roberts was shot. She insinuated that her boyfriend at the time of the
shooting may have taken her gun and shot Roberts.
DISCUSSION
Defendant argues that the trial court did not understand that it had the discretion to
strike her 25-years-to-life firearm enhancement and impose a lesser firearm enhancement.
She contends the trial court erroneously “thought it was faced with an all-or-nothing
choice” to strike the 25-years-to-life enhancement or to impose it. The People contend
that the trial court appeared to believe that it had the discretion to strike the 25-years-to-
life enhancement and impose a lesser firearm enhancement when, in fact, it did not.
We agree with the People. First, we presume that the trial court was aware of, and
did not misunderstand the scope of, its discretion, and nothing in the record rebuts that
presumption. Second, we conclude that the trial court lacked the discretion to impose a
lesser firearm enhancement. Third, we further conclude that even if the court had the
discretion to impose a lesser firearm enhancement and misunderstood that discretion,
such error was harmless because the trial court clearly indicated it would have reached
the same outcome even if it had such discretion.

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4.
A. Statutory Overview
“Section 12022.53 sets out three different sentence enhancements for the personal
use of a firearm in the commission of certain enumerated felony offenses:
subdivision (b) provides for a 10-year enhancement for the personal use of a firearm,
subdivision (c) provides for a 20-year enhancement for the personal and intentional
discharge of a firearm, and subdivision (d) provides for a 25-year-to-life enhancement for
the personal and intentional discharge of a firearm causing great bodily injury or death.
Before the enactment of Senate Bill No. 620 (2017–2018 Reg. Sess.) (Stats. 2017,
ch. 682, §§ 1, 2, eff. Jan. 1, 2018), section 12022.53, subdivision (h) expressly prohibited
trial courts from striking section 12022.53 enhancements. [Fn. omitted.] Senate Bill
No. 620 … amended section 12022.53, subdivision (h) to give trial courts discretion to
‘strike or dismiss’ enhancements imposed under this section ‘in the interest of justice
pursuant to [s]ection 1385.’ ” (People v. Tirado (2019) 38 Cal.App.5th 637, 642.)
B. Additional Background
On remand, defendant moved the trial court to strike the 25-years-to-life firearm
enhancement, or in the alternative, strike that enhancement and impose a lesser firearm
enhancement. In support of her argument in the alternative, defendant relied upon People
v. Morrison (2019) 34 Cal.App.5th 217 (Morrison). In Morrison, the defendant was
charged with murder and a 25-years-to-life firearm enhancement under section 12022.53,
subdivision (d). (Id. at p. 220.) The defendant was convicted of first degree
premeditated murder and the firearm enhancement was found true. (Ibid.) The defendant
was sentenced to 25 years to life for murder and 25 years to life for the firearm
enhancement. (Ibid.) After sentencing, the defendant requested a recall of the sentence
in light of Senate Bill No. 620. (Ibid.) The trial court recalled the sentence but denied
the request to strike the enhancement. It then reimposed the original sentence. On
appeal, the First District Court of Appeals vacated the sentence and remanded for
resentencing because it concluded that the trial court was unaware that it had the

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5.
discretion to strike the 25-years-to-life firearm enhancement (§ 12022.53, subd. (d)), and
impose a “ ‘lesser included’ ” firearm enhancement (§§ 12022.5, subd. (a), 12022.53,
subds. (b) & (c)), if it was in the interest of justice to do so. (Morrison, at pp. 222–225.)
In her written response, the prosecutor argued that the 25-years-to-life firearm
enhancement should not be stricken because it would not be in the interest of justice.
That response was silent regarding whether the trial court could impose a lesser firearm
enhancement. However, during the hearing on defendant’s motion, the prosecutor
appears to have assumed that the trial court had the discretion to substitute a lesser
firearm enhancement but contended it was not in the interest of justice to do so.3 She
argued that “to impose a lesser gun enhancement makes no sense because those
enhancements relate to, did she discharge a firearm in the commission of an offense.
Well, yes. But she killed somebody with it. And that is what 12022.53(d) is designed to
punish. [¶] To impose a lesser gun enhancement doesn’t really match the conduct in this
case. The (c) enhancement is just her discharging a weapon, not killing someone with it.
And the (a) and the (b) is just for personal use of a weapon in the commission of a
crime .…”
The trial court considered the parties’ arguments and stated that it had read the
parties’ briefs, but it did not squarely address whether it believed it had the discretion to
impose a lesser firearm enhancement. After the parties’ argument, the trial court relayed
the facts of the offense and found “no circumstances” that would lead it to “find that it
would be in the interest of justice to strike the firearm enhancement that [it] previously
imposed at the time of sentencing.” The trial court found that the evidence was
compelling. It explained that the “stalking,” “the continued deflection of responsibility to
other people, the timing of the purchase of the weapon[,] … the actual murder of
3 As the People note, at the time of resentencing, Morrison was the only published
case on the issue. The prosecutor appears to have accepted it was correctly decided.

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6.
Mr. Roberts …[,] and the [existence of] the shrine, the photographs, the tattooing, [and]
the wedding invitations” all support imposition of the 25-years-to-life firearm
enhancement.
C. Analysis
First, in the absence of any affirmative indication to the contrary, “ ‘a trial court is
presumed to have been aware of and followed the applicable law. [Citations.]’
[Citations.] This rule derives in part from the presumption of Evidence Code section 664
‘that official duty has been regularly performed.’ ” (People v. Stowell (2003) 31 Cal.4th
1107, 1114.) This presumption, however, is rebutted where “the record demonstrates the
trial court was unaware of its discretion or that it misunderstood the scope of its
discretion under the applicable law.” (Barriga v. 99 Cents Only Stores LLC (2020) 51
Cal.App.5th 299, 334.)
Here, the record is absent of any indication that the trial court did not believe that
it had the discretion to strike the 25-years-to-life enhancement and impose a lesser
firearm enhancement. When the trial court resentenced defendant, Morrison was the only
published opinion addressing the issue and the parties appeared to accept that the trial
court could impose a lesser firearm enhancement if justice so required. Further, the trial
court’s decision—to not strike the 25-years-to-life enhancement—was not inconsistent
with it holding the belief that it had discretion to impose a lesser enhancement. We
therefore must conclude that the trial court understood its discretion to encompass
striking the 25-years-to-life enhancement and imposing a lesser firearm enhancement, but
it declined to exercise that discretion.
Second, we conclude—based on case authority published after defendant was
resentenced—that the trial court lacked the discretion to impose a lesser firearm
enhancement that was not found true by the jury. People v. Tirado, supra, 38
Cal.App.5th at p. 644, review granted November 13, 2019, S257658; People v. Garcia
(2020) 46 Cal.App.5th 786, 790–794, review granted June 10, 2020, S261772; and

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7.
People v. Yanez (2020) 44 Cal.App.5th 452, 458–460, review granted April 22, 2020,
S260819, are contrary to Morrison. We find these authorities more persuasive than
Morrison.
Third, recognizing that our Supreme Court will soon have the final word on the
matter, we also conclude that even assuming the trial court had the discretion to substitute
a lesser included firearm enhancement, and it did not understand that it had such
discretion, remand would be unnecessary in this case.
“ ‘ “Defendants are entitled to sentencing decisions made in the exercise of the
‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that ‘informed discretion’ than
one whose sentence is or may have been based on misinformation regarding a material
aspect of a defendant’s record.” [Citation.] In such circumstances, we have held that the
appropriate remedy is to remand for resentencing 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. Flores (2020) 9 Cal.5th 371, 431–432.)
Here, the trial court concluded that the interest of justice was not served by
“strik[ing] the firearm enhancement … previously imposed.” The trial court reimposed
the 25-years-to-life enhancement because the evidence was compelling that defendant
personally and intentionally shot Roberts, causing death. The record clearly indicates
that the trial court would not have stricken the 25-years-to-life enhancement and imposed
a lesser enhancement even if it had the discretion to do so.
DISPOSITION
The judgement is affirmed.

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