P. v. Stultz

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Filed 5/19/20 P. v. Stultz CA4/2
See concurring opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWARDO STULTZ,
Defendant and Appellant.
E071841
(Super.Ct.No. INF1601918)
OPINION
APPEAL from the Superior Court of Riverside County. Russell L. Moore, Judge.
Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Idan Ivri and Michael J. Wise, Deputy Attorneys General, for Plaintiff and
Respondent.

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A jury found defendant and appellant, Edwardo Stultz, guilty of second degree
murder (Pen. Code § 187; count 1)1 and being a felon in possession of a firearm (§
29800; count 2). The jury additionally found true allegations that defendant personally
and intentionally discharged a firearm in his commission of the murder (§ 12022.53,
subd. (d)) and committed the murder for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The court thereafter
found true allegations that defendant had suffered a prior serious felony conviction and
prior strike conviction. (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).)
The court sentenced defendant to 55 years to life, including an indeterminate term
of 25 years to life on the section 12022.53, subdivision (d) enhancement. On appeal,
defendant contends the matter must be remanded for a new sentencing hearing because
the sentencing court misunderstood the scope of its discretion to strike the section
12022.53, subdivision (d) enhancement and impose a lesser included enhancement. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A witness testified that a person he saw earlier dressed the same as defendant shot
and killed the victim. A second witness told an officer he saw defendant and another
man shoot the victim seven times.
By interlineated felony information, the People charged defendant with murder
(§ 187, subd. (a); count 1) and being a felon in possession of a firearm (§ 29800;
1 All further statutory references are to the Penal Code unless otherwise indicated.

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count 2). The People additionally alleged that defendant personally and intentionally
discharged a firearm in his commission of the murder (§ 12022.53, subd. (d)); committed
the murder for the benefit of, at the direction of, or in association with a criminal street
gang (§ 186.22, subd. (b)(1)(C)); had suffered a prior serious felony conviction (§ 667,
subd. (a)); and had suffered a prior strike conviction (§§ 667, subds. (c) & (e)(1),
1170.12, subd. (c)(1)).
A jury found defendant not guilty of first degree murder, but guilty of second
degree murder (Pen. Code § 187; count 1) and being a felon in possession of a firearm
(§ 29800; count 2). The jury additionally found true allegations that defendant personally
and intentionally discharged a firearm in his commission of the murder (§ 12022.53,
subd. (d)) and committed the murder for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The court thereafter
found true allegations that defendant suffered from a prior serious felony conviction
(§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12,
subd. (c)(1)).
At the original sentencing hearing, defense counsel argued the court should use its
discretionary power to strike the firearm enhancement. The court asked whether, “if I
were so inclined, rather than . . . just entirely strike the gun enhancement, could I impose
a 20-year enhancement that’s not a life sentence on top of the murder?” Defense counsel
responded that it could impose a section 12022.5 enhancement. The court asked, “Why
would I have to go to an uncharged enhancement? Couldn’t I go to a lesser included, if it

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is indeed a lesser included, in other words, the same statue, but a different subdivision?
Instead of (d), (b)?” Defense counsel responded that it could.
The court noted, “I will say that the evidence, if believed by the jury, does support
the verdict, . . .” “If the jury believed the People’s evidence that [defendant] is
responsible, which they apparently did, if the jury believed that he personally,
intentionally discharged a firearm, causing at least great bodily injury, they showed
mercy and leniency” by finding defendant guilty of second degree murder rather than
first degree murder.
Of the issue, the People observed, “First in turn, the question was asked: Does the
Court have the power to find a [section] 12022.53[, subdivision] (c) in lieu of the jury
finding [section] 12022.53[, subdivision] (b) as a necessarily lesser included charge, if
you will, to the allegation which was found true? I don’t believe there’s any authority to
do that, Your Honor, because that’s a specific requirement and it has to be a necessarily
related charge that, I think, both counsel and I have to agree to it for the Court to consider
in that regard.”
Prior to sentencing defendant, the court stated, “I do not see myself as having the
authority to say, ‘Look the statute says you can impose the enhancement or you can
completely get rid of it. I’m going to pick something in the middle ground.’ ” “For
instance, in this case, if memory serves me, the People didn’t charge [section] 12022.53[,
subdivision] (c) or [section] 12022.53[, subdivision] (b). They only charged [section]
12022.53[, subdivision] (d). The jury found [section] 12022.53[, subdivision] (d), but I

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would say . . . if I felt I had the discretion . . . and authority to do so, I would be on the
fence about whether I would . . . .” “If I had that discretion, that would be a difficult call,
and I don’t know.”
The court sentenced defendant to an aggregate term of imprisonment of 60 years
to life, including 25 years to life on the section 12022.53, subdivision (d) enhancement.
The court later recalled the sentence, struck the prior serious felony conviction
enhancement, and resentenced defendant to 55 years to life, including the 25 years to life
on the section 12022.53, subdivision (d) enhancement.
II. DISCUSSION
Defendant contends the matter must be remanded for a new sentencing hearing
because the sentencing court misunderstood the scope of its discretion to strike the
section 12022.53, subdivision (d) enhancement and impose a lesser included
enhancement, particularly since the court in People v. Morrison (2019) 34 Cal.App.5th
217 (Morrison) later held that sentencing courts have such authority. We disagree.
“Section 12022.53 provides three different sentence enhancements for the personal
use of a firearm in the commission of enumerated offenses: a 10-year enhancement for
the personal use of a firearm [citation]; a 20-year enhancement for the personal and
intentional discharge of a firearm [citation]; and a 25-year-to-life enhancement for the
personal and intentional discharge of a firearm causing great bodily injury or death
[citation]. Recently, the Legislature amended the statute to include the following: ‘The
court may, in the interest of justice pursuant to Section 1385 and at the time of

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sentencing, strike or dismiss an enhancement otherwise required to be imposed by this
section. . . .’ [Citation.]” (People v. Yanez (2020) 44 Cal.App.5th 452, 458.) The court
in Morrison, supra, 34 Cal.App.5th 217, held that the amended statute provided authority
for the court to strike an enhancement under section 12022.53, subdivision (d), and
impose an uncharged enhancement under section 12022.53, subdivision (b) or (c).
(Morrison, at pp. 222-223.)
“ ‘ “ ‘When we interpret a statute, “[o]ur fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. We do not examine that language
in isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the enactment. If
the language is clear, courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the Legislature did not intend.” ’ ” ’
[Citation.] In construing any statute, ‘we may not broaden or narrow the scope of the
provision by reading into it language that does not appear in it or reading out of it
language that does. “Our office . . . ‘is simply to ascertain and declare’ what is in the
relevant statutes, ‘not to insert what has been omitted, or to omit what has been
inserted.’ ” [Citation.] “ ‘ “A court . . . may not rewrite the statute to conform to an
assumed intention which does not appear from its language.” ’ ” ’ [Citation.]” (People v.
Yanez, supra, 44 Cal.App.5th at pp. 458-459.)

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The court in People v. Tirado (2019) 38 Cal.App.5th 637, review granted
November 13, 2019, S257658, disagreed with the court in Morrison, noting that
“[n]othing in the plain language of sections 1385 or 12022.53, subdivision (h) authorizes
a trial court to substitute one enhancement for another.” (Tirado, at p. 643.) Thereafter,
this court in People v. Yanez, supra, 44 Cal.App.5th at 452, agreed with the court in
Tirado. This court observed: “[U]nder a plain reading, the Legislature’s use of the words
‘strike’ or ‘dismiss’ indicates the court’s power pursuant to these sections is binary.
[Citation.]” (Yanez, at p. 459.) This court additionally “decline[d] to adopt an
interpretation of section 12022.53, subdivision (h) which would vest the trial court with
discretionary power to essentially modify a charge brought by the prosecutor despite
sufficient evidence to support such a charge.” (Id. at p. 460.)
Most recently, the court in People v. Garcia (2020) 46 Cal.App.5th 786, also
agreed with the court in Tirado “that section 12022.53, subdivision (h) does not grant
trial courts the discretion to substitute lesser included firearm enhancements, at least
where the greater enhancement is legally and factually valid.” (Id. at pp. 790-791.) The
court posited three reasons for reaching that conclusion. First, the plain language of the
statue was unambiguous, granting courts discretion solely to strike or dismiss a firearm
enhancement. (Id. at p. 791.) Second, the separation of powers vested the executive with
the exclusive power to choose which enhancements to charge. (Id. at pp. 791-792.)
Third, where substantial evidence did not support instructing the jury on lesser included

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enhancements, the court could not substitute a lesser included enhancement. (Id. at
p. 792.)
We agree with the reasoning and holdings in Tirado, Yanez, and Garcia. Thus,
since defendant does not challenge the sufficiency of the evidence to support the section
12022.53, subdivision (d) enhancement, and the sentencing court expressly indicated the
evidence supported it, the court is without authority to reduce the enhancement. The
court acted within its discretion in determining it had no authority to reduce the
enhancement.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
I concur:
FIELDS
J.

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[People v. Stultz, E071841]
MENETREZ, J., Concurring.
I concur in the judgment because I am not aware of any basis to depart from our
division’s recent decision in People v. Yanez (2020) 44 Cal.App.5th 452, review granted
April 22, 2020, S260819 (Yanez). Yanez joined People v. Tirado (2019) 38 Cal.App.5th
637, review granted November 13, 2019, S257658 (Tirado), in rejecting People v. Morrison
(2019) 34 Cal.App.5th 217 (Morrison). But I write separately because, in my view, Tirado
and Yanez are mistaken.
The issue is whether a court that strikes a firearm enhancement under Penal Code
section 12022.53 (section 12022.53) has discretion to impose an uncharged lesser included
enhancement. (Morrison, supra, 34 Cal.App.5th at pp. 220-221; Yanez, supra, 44
Cal.App.5th at pp. 455, 458.) Morrison holds that the court has that discretion (Morrison, at
p. 220), but Tirado and Yanez hold that it does not (Tirado, supra, 38 Cal.App.5th at pp.
639-640; Yanez, at pp. 458-460).
Section 12022.53 provides for various firearm enhancements and, before the
Legislature amended the statute in 2017, expressly prohibited the striking of those
enhancements. (Morrison, supra, 34 Cal.App.5th at p. 221.) As amended, however, the
statute now expressly allows for those firearm enhancements to be stricken “in the interest
of justice.” (§ 12022.53, subd. (h); see Morrison, at pp. 221-222.) So the question is
whether, having stricken an enhancement pursuant to amended section 12022.53, the
sentencing court has the power to impose an uncharged lesser included enhancement.

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Prior case law uniformly holds that the court does have the power to impose an
uncharged lesser included enhancement when a greater enhancement is stricken. (People v.
Fialho (2014) 229 Cal.App.4th 1389, 1395-1396; People v. Strickland (1974) 11 Cal.3d
946, 961; People v. Lucas (1997) 55 Cal.App.4th 721, 743; People v. Allen (1985) 165
Cal.App.3d 616, 627; People v. Dixon (2007) 153 Cal.App.4th 985, 1001-1002.) Those
cases involved stricken enhancements that were either legally inapplicable or not supported
by sufficient evidence, rather than enhancements that were stricken in the interest of justice
and through an exercise of the court’s discretion. But I am aware of no reason why the
judicial power to impose an uncharged lesser included enhancement would exist in the one
context but not in the other. If a sentencing court has a long-established power to impose an
uncharged lesser included enhancement after striking a greater enhancement that is legally
inapplicable, why would that power disappear when the greater enhancement is stricken in
the interest of justice under amended section 12022.53?
I consequently believe that Tirado and Yanez frame the issue incorrectly by asking
whether the amended statute “conveys the power to change, modify, or substitute a charge
or enhancement.” (Tirado, supra, 38 Cal.App.5th at p. 643; see Yanez, supra, 44
Cal.App.5th at p. 458 [“the question we consider here is whether the statute, as amended,
provides authority for a trial court to exercise discretion to impose a lesser included,
uncharged enhancement”].) The question is not whether the amended statute conveys the
power to impose an uncharged lesser enhancement (or change or modify an enhancement).
Rather, the question is whether, having exercised its power under the amended statute to

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strike a greater enhancement, the court still has its previously recognized power to impose
an uncharged lesser. Again, I am aware of no reason why it would not. The statutory
amendment did not convey the power to impose the uncharged lesser. The court had that
power already.
I am also unpersuaded by the separation of powers concerns articulated in Tirado,
supra, 38 Cal.App.5th at p. 644, and Yanez, supra, 44 Cal.App.5th at pp. 459-460. Under
prior case law, when (1) the prosecution exercises its discretion to place an all-or-nothing
wager by charging only a greater enhancement and no lessers, and (2) the prosecution loses
because the greater enhancement turns out to be legally inapplicable or factually
unsupported, the trial court has the power to spare the prosecution from the full
consequences of its bad bet by imposing an uncharged lesser included enhancement.
(People v. Fialho, supra, 229 Cal.App.4th at pp. 1395-1396.) No one has ever thought the
existence or exercise of that power raises separation of powers concerns because of judicial
encroachment on prosecutorial discretion. In my view, the separation of powers argument is
similarly implausible here.
For similar reasons, I disagree with the separation of powers analysis in People v.
Garcia (2020) 46 Cal.App.5th 786 (Garcia), which also follows Tirado and rejects
Morrison. Garcia asserts that the trial court’s previously recognized power to impose an
uncharged lesser included enhancement is merely a power “to salvage as much of the
prosecutor’s charging decision . . . as possible,” so as to “effectuate” the prosecutor’s
exercise of discretion. (Garcia, 46 Cal.App.5th at p. 793.) In my view, it is nothing of the

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kind. In the circumstances at issue, the prosecution has exercised its discretion not to
charge the lesser included enhancements. It could have charged them, but it chose not to.
Rather, it chose to go all-or-nothing. If the only charged enhancement turns out to be
legally inapplicable or factually unsupported, then effectuating the prosecutor’s exercise of
discretion would require imposing no enhancement at all. That was the prosecutor’s choice.
Imposing an uncharged lesser in those circumstances thus does not effectuate the
prosecutor’s exercise of discretion. It thwarts it. In effect, the holding of Tirado is that such
a power to thwart the prosecutor’s exercise of discretion exists when it would benefit the
prosecution but not when it would benefit the defense.
For all of these reasons, I respectfully disagree with Tirado, Yanez, and Garcia. But
mindful of principles of stare decisis, I am aware of no basis to depart from our division’s
recent decision in Yanez, so I concur in the judgment.1
MENETREZ
J.
1 I recognize that there are various interpretations of the familiar proposition that
there is no horizontal stare decisis in the California Court of Appeal. (In re Marriage of
Shaban (2001) 88 Cal.App.4th 398, 409.) In my view, we should treat the published
opinions of other divisions and districts as persuasive authority, but we should normally
follow the published opinions of our own division, absent a sufficient reason to depart from
them. (See Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn.
(2013) 55 Cal.4th 1169, 1180 & fn. 9; Eisen v. Tavangarian (2019) 36 Cal.App.5th 626,
637; Opsal v. United Services Auto. Assn. (1991) 2 Cal.App.4th 1197, 1203-1204; see
generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group
2019) ¶¶ 14:193-14:193.2.) When our division has recently taken a position on an issue that
is dividing the Courts of Appeal, I do not believe that my mere disagreement with our
division’s position is a sufficient reason.

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