Since Senate Bill (SB) 620 had become effective, as well as a series of other new sentencing laws and the policies of Los Angeles District Attorney George Gascón have been publicized, we have received dozens of phone calls from inmates and families of inmates curious to know if their particular sentence might be reduced.
In most situations, the answer is no because the new law and the new polices by Gascón only apply to pending or open cases, or cases where the sentence is not yet final. However, when such a new law applies, the judge certainly can refuse to strike or reduce the enhancement, so it is helpful to understand the facts of a case where the judge declined to act and the appellate court found such a ruling proper.
In 2016 in San Bernardino Superior Court, a jury convicted Christopher A. Parramartinez of five counts, including simple kidnapping with a firearm use enhancement (Penal Code §§ 207, 12022.53(b)) and assault with a firearm with a personal firearm use enhancement (Penal Code §§ 245, 12022.5(a)).
The case arose after Parramartinez’s girlfriend broke up with him and the next day, at 1:00 or 2:00 a.m., he went to her house, where she lived with her father, to pick up some of his personal items stored in the garage. He was furious to find the lock on the garage had been changed.
He called the father about this and the father came down to open the garage for Parramartinez. While the father was there, Parramartinez pulled out a gun and held it to the father’s throat, saying he was going to kill the father and the father’s entire family. Parramartinez then left and the father called the police.
Later that day, Parramartinez called his now former girlfriend and asked her to meet with him. She agreed. He then forced her into his car and, with her in the car, called the father to demand he “remove” the police report or else he would kill his daughter. The father then called the police and told them his daughter was being kidnapped.
Parramartinez then drove his former girlfriend to an area near a shooting range and tried to shoot his gun, apparently just to test fire it, but perhaps also to scare his former girlfriend and to let her know the gun was loaded. The gun misfired, however, and jammed.
Parramartinez then drove his former girlfriend back home, where police found him. Parramartinez then led police on a high speed chase on freeways and surface streets before he was apprehended.
After the jury convicted Parramartinez, the judge (Ingrid A. Uhler) sentenced Mr. Parramartinez to a total of 18 years in state prison, which included the upper term of ten years for the firearm enhancement for the kidnapping charge and one year, four months (one-third the midterm) for the firearm enhancement to the assault of the father with a firearm.
Mr. Parramartinez appealed the verdict on many grounds to the Fourth Appellate District. While his appeal was pending, on October 11, 2017, the state legislature passed Senate Bill (SB) 620, which amended Penal Code §§ 12022.5 and 12022.5 to give the trial court judge authority to strike or dismiss a firearm enhancement pursuant to Penal Code § 1385, effective January 1, 2018.
Accordingly, the Fourth Appellate District remanded the case to the trial court to permit the trial court to consider whether to strike one or both firearm enhancements. The Fourth Appellate District did not express an opinion on how the trial court should exercise its discretion.
Judge Uhler then declined to strike either of the firearm enhancements and Parramartinez appealed this decision to the Fourth Appellate District as an abuse of discretion.
The Fourth Appellate District’s affirmed the trial court, finding no abuse of discretion.
The value of this article is here. The appellate court started from the general rule that an appellate court will not disturb a trial court’s ruling for an abuse of discretion unless the court exercised its discretion in an arbitrary, capricious or patently absurd manner that results in a manifest miscarriage of justice. People v. Williams (2013) 58 Cal. 4th 197, 270, 271. The decision will be upheld so long as there is a reasonable or even fairly debatable justification under the law for the court’s decision. Gonzales v. Nork (1978) 20 Cal. 3d 500, 507.
What is that law for the court’s decision on an “SB 620 Motion?” In People v. Pearson (2019) 38 Cal. App. 5th 112, 117, the Second Appellate District held the factors that the trial court must consider when deciding whether to strike a section 12022.53 firearm enhancement pursuant to the amendment are the same as those it is required to weigh when handing down a sentence in the first instance.
Included in the factors to be considered when considering sentencing on either a section 12022.5 or a section 12022.53 firearm enhancement are those expressly set forth in California Rules of Court, Rule 4.428(b). Those are: (i) the effect that striking the enhancement would have on the status of the crime as a strike; (ii) the accurate reflection of the defendant’s criminal conduct on his or her record; (iii) the effect it may have on the award of custody credits; and (iv) any other relevant consideration. Pearson, supra, 38 Cal. App. 5th at 117. Also to be considered are the general objectives in sentencing (Rule 4.410), as well as circumstances in aggravation and mitigation (Rules 4.421 and 4.423).
Here, on a review of the facts of the case, the Fourth Appellate District found no abuse of discretion whatsoever.
For more information about Senate Bill (SB) 620, please click on the following articles: