Filed 7/31/19
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION ONE


 THE PEOPLE,                         B293953

         Plaintiff and Respondent,   (Los Angeles County
                                     Super. Ct. No. TA137063)
         v.

 PATRICK PEARSON,

         Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed.
      David Y. Stanley, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Zee Rodriguez and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
                 ____________________________
       Desmond McMiller, Patrick Pearson, and Deshonda Young
killed Douglas Wooley on the morning of March 6, 2014. On
direct appeal of judgments entered after a jury trial, we affirmed
the trial court’s convictions of the three defendants. But because
the Legislature had enacted Senate Bill No. 620 (amending Penal
Code section 12022.53 1) to allow the trial court to strike a firearm
enhancement imposed pursuant to section 12022.53 after
sentencing but before the judgment were final, we remanded the
case to the trial court to hold a new sentencing hearing to
consider whether to exercise its discretion to “strike or dismiss an
enhancement otherwise required by section 12022.53.” (People v.
McMiller (May 24, 2018, B268622) [nonpub. opn.] (McMiller); §
12022.53, subd. (h).)
       On remand, the trial court denied Pearson’s motion to
strike the firearm enhancement pursuant to section 12022.53,
subdivision (h). We find no abuse of discretion and affirm.
                           BACKGROUND
       Wooley was gunned down at the intersection of 97th Street
and Main Street in Los Angeles by two men who emerged from
the passenger’s side of a gold Mercury Grand Marquis. Among
other injuries, Wooley suffered two gunshot wounds to the head,
two to the torso, several to “the upper extremities[,] and one to
the buttock.” 2 “The totality of all of the injuries led to [Wooley’s]
death,” probably within minutes of the shooting. Wooley was
developmentally disabled.


      1Further statutory references are to the Penal Code unless
otherwise specified.

      The background section is derived largely from our
      2

nonpublished opinion in McMiller, supra, B268622.)




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        Across the street, Mirna Martinez stood at her front door
and called her dog inside. Martinez screamed when she heard
the shots. Pearson turned his gun toward her home and fired,
hitting the residence.
        Pearson was found guilty of first degree murder (§ 187,
subd. (a)), assault with a machine gun or assault weapon on
witness Mirna Martinez (§ 245, subd. (a)(3)), possession of a
firearm by a felon (§ 29800, subd. (a)(1)), shooting at an inhabited
dwelling (§ 246), and dissuading a witness (Martinez) by force or
threat (§ 136.1, subd. (c)(1)). The jury also found true firearm
(§ 12022.53, subds. (d) & (e)(1)) and gang enhancements
(§ 186.22, subd. (b)). Pearson stipulated at trial that he had a
prior felony conviction for purposes of possession of a firearm by a
felon.
        Based on those findings, in December 2015 the trial court
sentenced Pearson to a total of 72 years to life, including 25 years
to life imposed based on the jury’s firearm enhancement finding.
On appeal, we affirmed the trial court’s judgment against
Pearson. But because the Governor signed into law Senate Bill
No. 620 on October 11, 2017 (while Pearson’s appeal was
pending), and because we could not conclusively determine from
the reporter’s transcript of the sentencing hearing whether the
trial court would have exercised its discretion to strike Pearson’s
firearm enhancement, we remanded the case to the trial court to
allow the trial court to exercise its discretion in the first instance.
        On remand, the trial court exercised its discretion to deny
Pearson’s request to strike the firearm enhancement. Pearson
timely appealed.




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                             DISCUSSION
       Under “section 12022.53, subdivision (d), a defendant
convicted of a qualifying felony who intentionally and personally
discharges a firearm, proximately causing great bodily injury or
death, is subject to an additional term of 25 years to life.” (People
v. Garcia (2002) 28 Cal.4th 1166, 1169.) “Section 12022.53,
subdivision (e)(1), imposes vicarious liability under this section
on aiders and abettors who commit crimes in participation of a
criminal street gang.” (Id. at p. 1171.)
       Senate Bill No. 620, which added section 12022.53,
subdivision (h), gave the trial court discretion “in the interest of
justice pursuant to Section 1385 and at the time of sentencing,
[to] strike or dismiss an enhancement otherwise required to be
imposed by this section.” (§ 12022.53, subd. (h).)
       “ ‘A court’s discretionary decision to dismiss or to strike a
sentencing allegation under section 1385 is’ reviewable for abuse
of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 373.)
“In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “[t]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.” ’ [Citations.] Second, a ‘ “decision will not be
reversed merely because reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’ ” ’
[Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so




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irrational or arbitrary that no reasonable person could agree with
it.” (Id. at pp. 376-377.)
       After hearing argument regarding Pearson’s firearm
enhancement and his resulting sentence, the trial court denied
Pearson’s request to strike the enhancement. In doing so, the
trial court stated: “This is a situation of a drive-up in a car, the
three of you. Two of you get out. And a young man, who, I
believe, was a special needs individual, you executed him in cold
blood. Both of you had acted in concert, both of you gangbangers,
and there was sufficient evidence with regard to not only the
underlying crime, not only the gun allegation, but certainly the
gang allegation. [¶] So the court recognizes its ability to strike
the 12022.53; however, in this particular case, based on the
conduct of these particular individuals, I am not going to do that.
And the sentence, as imposed before, remains.”
       Pearson contends the trial court’s statement means that
the trial court “lumped Mr. Pearson together with his co-
defendant McMiller, who clearly was the more culpable of the
two, but also relied entirely on the nature of the offense in
declining to strike the enhancement.” Pearson contends the trial
court should have also considered the likelihood that Pearson
would continue to be a danger to society in the future: “Future
dangerous[ness] should be a critical factor here, as in the parole
context . . . .” Pearson’s arguments here imply that the factors to
be considered on a remand for resentencing under Senate Bill No.
620 are a blank slate.
       We disagree. Resentencing after new legislation that
applies to sentences not yet final can deprive context from what
would otherwise be a decision made during the original
sentencing hearing. In addition to the factors expressly listed for




                                 5
determining whether to strike enhancements listed in California
Rules of Court, rule 4.428(b), the trial court is also to consider the
factors listed in California Rules of Court, rule 4.410 (listing
general objectives in sentencing), as well as circumstances in
aggravation and mitigation under rules 4.421 and 4.423.
“[U]nless the record affirmatively reflects otherwise,” the trial
court is deemed to have considered the factors enumerated in the
California Rules of Court. (Cal. Rules of Court, rule 4.409.)
Among other factors the court may have considered were that
“[t]he crime involved great violence . . . threat of great bodily
harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness,” that the “defendant was armed with
or used a weapon at the time of the commission of the crime,” and
that the “victim was particularly vulnerable.” (Cal. Rules of
Court, rule 4.421(a)(1)-(3).) Indeed, the record reflects that the
trial court did consider these factors. When the trial court
referred to the victim as a “special needs individual,” it expressly
considered that “[t]he victim was particularly vulnerable.” (Cal.
Rules of Court, rule 4.421(a)(3).) When the trial court referred to
the defendant and McMiller “execut[ing the victim] in cold blood,”
it expressly considered whether “[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” and that “[t]he defendant has engaged in violent
conduct that indicates a serious danger to society.” (Cal. Rules of
Court, rule 4.421(a)(1), (b)(1).) When the trial court referred to
there being sufficient evidence with regard to the gun allegation,
it expressly considered whether “[t]he defendant was armed with
or used a weapon at the time of the commission of the crime.”
(Cal. Rules of Court, rule 4.421(a)(2).)




                                  6
       But nothing in the record affirmatively establishes that the
trial court did not consider other relevant factors it was required
to consider. (Cal. Rules of Court, rule 4.409 [“Relevant factors
enumerated in these rules must be considered by the sentencing
judge, and will be deemed to have been considered unless the
record affirmatively reflects otherwise”].)
       Pearson’s brief makes an eloquent and elegant argument
about trends in felony sentencing generally and in California
specifically. But it ignores the context in which sentencing
decisions like the one at issue here will typically be made. The
factors that the trial court must consider when determining
whether to strike a firearm enhancement under section 12022.53,
subdivision (h) are the same factors the trial court must consider
when handing down a sentence in the first instance.
       Pearson acknowledges that the trial court’s discretion is
“delimited by . . . applicable legal standards, a departure from
which constitutes an ‘abuse’ of discretion.” (See City of
Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.)
The trial court did not depart from applicable legal standards
here. The trial court considered the factors it was required to
consider when sentencing a felony defendant; denying Pearson’s
request to strike the firearm enhancement here was squarely
within the bounds of the trial court’s discretion.




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                       DISPOSITION
     The judgment is affirmed.
     CERTIFIED FOR PUBLICATION




                                     CHANEY, J.

We concur:



             ROTHSCHILD, P. J.



             BENDIX, J.




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