People v. Yanaga

58 Cal.App.5th 619

272 Cal.Rptr.3d 612

The PEOPLE, Plaintiff and Respondent,

v.Thomas Nolan YANAGA, Defendant and Appellant.

2d Crim. No. B302291

Court of Appeal, Second District, Division 6, California.

Filed December 14, 2020

Dwyer + Kim and Jin H. Kim, San Francisco, 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, Julie A. Harris, Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.

YEGAN, J.

Thomas Nolan Yanaga appeals a postjudgment order denying his motion to strike a firearm enhancement after we had remanded the matter for resentencing on the enhancement. We conclude that the trial court prejudicially erred because it was unaware of the scope of its discretionary power. It refused to consider appellant's postjudgment rehabilitative efforts in prison because it mistakenly believed it could consider only information before the original sentencing court. We reverse and remand.

Procedural Background

In a nonpublished opinion ( People v. Yanaga (Sept. 25, 2017, B267571), 2017 WL 4230429 ), we affirmed the judgment entered after a jury had convicted appellant of second degree murder. ( Pen. Code §§ 187, subd. (a), 189.)¹ The jury found true an enhancement allegation that he had personally and intentionally discharged a firearm causing death. (§ 12022.53, subd. (d).) Appellant was sentenced to prison for an aggregate term of 40 years to life: 15 years to life for second degree murder plus 25 years to life for the firearm enhancement.

The California Supreme Court granted review. It transferred the matter to us "with directions to vacate [our] decision and reconsider the cause in light of S.B. [Senate Bill No.] 620 (Stats. 2017, ch. 682)." Senate Bill No. 620 amended subdivision (h) of section 12022.53 to authorize the striking of a firearm enhancement in the interest of justice pursuant to section 1385.

In a second nonpublished opinion ( People v. Yanaga (May 17, 2018, B267571), 2018 WL 2252171 ), we reversed the trial court's imposition of a 25-year-to-life term for the firearm enhancement. We concluded that, because appellant's judgment was not final, he was entitled to the benefit of the legislative determination that the previous bar on striking firearm enhancements was too severe. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308, 228 Cal.Rptr.3d 394, 410 P.3d 22.) We remanded the matter for the limited purpose of allowing the trial court to exercise its discretion whether to strike the enhancement in the interest of justice pursuant to sections 12022.53(h) and 1385. It declined to strike the firearm enhancement.

Facts Presented at Trial

Ashley Moss and appellant were friends. They frequently used methamphetamine together. Moss was living in a spare room in the home of appellant and his wife, Joyce.

Moss and the victim, Marshall Savoy, had a dating relationship. Savoy visited Moss at appellant's home when appellant was present.

On March 13, 2015, Savoy visited Moss at a trailer parked outside appellant's home. He heard appellant and Joyce arguing inside the home. Savoy entered the home and accused appellant of disrespecting his wife.

Joyce testified that Savoy took off his shirt and was trying to provoke appellant, but appellant just "sat there." Savoy threw the shirt at appellant. Appellant said to Savoy in a "stern" voice, "please get off my property." Savoy refused. Appellant repeatedly said to Savoy, "Get out of my house." When Savoy lunged at him, appellant shot Savoy. He told Joyce to call 911.

Moss testified that she saw appellant grab a gun that was on the kitchen island. He inserted a loaded magazine into the gun. With a "happy smirk" on his face, he walked out of the kitchen and said, " ‘Hey, Marshall.’ " Moss could not see appellant and then she heard gunshots. Appellant "yell[ed] at his wife to call 911 and tell them that there was an intruder."

Deputy sheriffs responded to Joyce's 911 call. They found Savoy dead in the driveway. Appellant told the deputies, "He charged me.... The gun's in the house."

The night before Savoy was shot, Moss heard appellant say, " ‘I have always wondered what it would be like to kill somebody.’ " That same night, Wesley Hart, Moss's and Savoy's friend, heard appellant say: " ‘I just want to kill someone. I just want to shoot somebody.’ " About two months before the shooting, appellant threatened Maddison McCullough, a friend of Savoy. He said " ‘I'll kill you on my property and say it's an intruder and get away with it.’ "

Appellant did not testify at trial. But after the shooting, appellant told the police that he was inside the garage with Joyce when appellant came "bargin’ in." Without knocking, Savoy "burst through the [screen] door [into the garage], gets in my face." He "[j]ust starts mouthin’ off about, you know, just starts ramblin’." He "tell[s] me he was gonna bash my head in." Appellant thought Savoy "was gonna smack me in the head and fuckin’ crush my skull in." "And, then all of a sudden he charges me." Appellant fired the gun three or four times.

Appellant's Request that Trial Court Consider His Post-Sentencing Conduct

Appellant requested that the trial court consider his post-sentencing conduct in determining whether to strike the firearm enhancement. Appellant submitted to the court a "laudatory chrono" from a catholic prison chaplain; a "[c]haracter [r]eference [l]etter" from a protestant prison chaplain; and commendations for his active participation in a "12-step self-help rehabilitation program," an "Anti-Recidivism Coalition Youth Offender Mentoring Program," and a "live-in placement" program that trains dogs to serve wounded veterans. In addition, appellant submitted certificates presented to him for successfully completing three 10-week rehabilitation programs.

Trial Court's Ruling

The original sentencing judge had retired. Therefore, a different judge (resentencing judge) conducted a hearing on appellant's motion to strike the firearm enhancement. The resentencing judge said that she had "had an opportunity to review the entirety of the trial transcripts," including "the pre-trial rulings, the trial testimony, and ... the sentencing hearing."

The resentencing judge believed that her task was "to essentially attempt now to make a determination as to whether with the evidence that was presented during the trial, the Court would have exercised discretion under [section] 12022.53, subsection (h) at the time of [original] sentencing to strike the [firearm enhancement]." She was "putting [her]self back in the situation of [the original sentencing judge] at the time of sentencing."

As aggravating factors, the resentencing judge found that "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." On the other hand, a mitigating factor was that appellant "had either no prior record or an insignificant record of criminal conduct." The resentencing judge considered expert testimony at the trial that the victim had been shot five times and that "the final wound was to his left scapula [shoulder blade] on his back. So he was clearly shot in the back at the very end of that discharge of five rounds." She also considered that when he was shot the victim "was shirtless with no weapons, no implements that could be used as a weapon."

The resentencing judge continued: "I see why [the original sentencing court] made the statement ... about [appellant] having essentially been a productive member of society prior to the event. But ... he had spiraled into a lifestyle that involved associations with people who used drug[s], that he was ... regularly carrying a firearm; that essentially this situation in which he shot an individual who was shirtless with no weapons five times had a certain inevitability to it given the lifestyle and the continued carrying around of a firearm and the association with the people who testified during this trial. [¶] So weighing all of those factors ..., I believe that the interest of justice would not be served by striking [the firearm enhancement] ...."

The resentencing judge said that she did not consider appellant's post-sentencing conduct: "I don't believe that that information is appropriately before the Court for purposes of determining whether to exercise discretion because it appears to me that the [section] 12022.53, subsection (h) analysis should occur at the time of [original] sentencing ... with the information before the sentencing judge, which that judge would not have had. So all of the behavior -- and really it's model behavior that [appellant] has exhibited while at CDCR [California Department of Corrections and Rehabilitation]. I am not taking that behavior into consideration for purposes of the analysis." "I'm relying primarily upon the testimony presented during the trial and the information that would have been presented to the judge at the time of [original] sentencing."

Resentencing Judge's Mistaken Belief Regarding Consideration of Postjudgment Conduct in Prison

Appellant contends that the order declining to strike the firearm enhancement must be reversed because the resentencing judge mistakenly believed that she could not consider his four years of postjudgment conduct in prison. We agree. " ‘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.’ " ( People v. Gutierrez (2014) 58 Cal.4th 1354, 1391, 171 Cal.Rptr.3d 421, 324 P.3d 245 ( Gutierrez ).)

"[I]t is well settled that when a case is remanded for...