Filed 9/24/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION EIGHT

THE PEOPLE,                            B289035

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. BA417074)
       v.

JUAN RAMIREZ,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Leslie A. Swain, Judge. Affirmed and remanded
for an amended abstract of judgment.
      Law Office of Elizabeth K. Horowitz and Elizabeth K.
Horowitz, 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, Senior Assistant
Attorney General, Scott A. Taryle, Supervising Deputy Attorney
General, and Nancy Lii Ladner, Deputy Attorney General, for
Plaintiff and Respondent.
               _________________________________




                                   1
       A jury convicted Juan Ramirez of a shotgun murder. On
appeal, Ramirez argues a range of errors. We hold there was no
instructional error, prosecutorial misconduct, or cumulative
error. Ramirez forfeited his ability-to-pay argument. There was
no sentencing error. By agreement, the abstract of judgment
must be amended. References are to the Penal Code.
                                   I
       Given the verdict, the facts are these. When Ramirez was
20, his co-defendant Armando Semidey held a wedding reception
at an apartment complex. Murder victim Salvador Zambrano
attended, got drunk, grabbed a woman, and started fighting.
Zambrano hit groom Semidey in the face and knocked him down.
Guests forced Zambrano out of the complex, but he and a group
gathered nearby. Ramirez heard Zambrano struck Semidey.
Ramirez and four others drove to confront Zambrano and his
group. Ramirez got out with a sawed-off shotgun and said “Who
is the mother fucker who hit my brother, my friend?” A second
fight started. Ramirez withdrew, took the shotgun back to the
truck, put it inside, and stayed there. Then one of Ramirez’s
group told him, “Kill that mother fucker. Kill him. Kill him.”
Ramirez got the shotgun and fired a deadly blast into Zambrano’s
back.
                                  II
       Ramirez appeals on six grounds.
                                  A
       We independently review Ramirez’s appeal about jury
instructions.
       A trial court must instruct the jury on general principles of
law necessary for the jury’s understanding of the case.




                                 2
Defendants have a right to an instruction pinpointing their
defense theory, but the court may refuse incorrect,
argumentative, duplicative, or confusing instructions. (People v.
Hovarter (2008) 44 Cal.4th 983, 1021.)
      The trial court instructed the jury about voluntary
manslaughter using CALCRIM No. 570. Ramirez requested two
special instructions. The trial court properly declined them.
      Ramirez’s first proposed special instruction stated
“Provocation sufficient to reduce murder to voluntary
manslaughter may accumulate over a period of time and may be
based upon a series of acts.” This instruction duplicated the
sentence in CALCRIM No. 570 that “Sufficient provocation may
occur over a short or long period of time.” The main difference is
the CALCRIM sentence is concise and the proposed instruction is
not. The trial court rightly rejected this duplicative instruction.
      Ramirez’s second proposed special instruction was
argumentative. This second proposal was “A defendant may
witness potential acts of provocation and/or be informed of them
afterwards.” Nothing in CALCRIM No. 570 was to the contrary.
This CALCRIM does not say Ramirez himself had to witness the
provocation, or that merely being informed of the provocation was
suspect or insufficient. To the contrary, the CALCRIM required
only that Ramirez “was provoked,” and that the provocation
would have caused an average person to act from passion.
Because the CALCRIM contained no restrictions on the means of
provocation—eyewitness observation versus being informed by
others—Ramirez’s second proposal could contribute no logical
content. It would simply add emphasis that would favor one side
and not the other, which is to say the proposal was
argumentative. The trial court correctly rejected this instruction.




                                3
                                 B
       Ramirez’s second argument is that there was prosecutorial
misconduct. There was not.
       Ramirez characterizes two categories of comments as
prosecutorial misconduct. The first involves four comments in
which Ramirez contends the prosecutor improperly equated
voluntary manslaughter with justified or excused killing.
Ramirez says these statements were misleading, inaccurate, and
inappropriate because they implied to the jury that it would be
forgiving or lenient to find Ramirez guilty of the lesser crime.
The second category involves two comments where, according to
Ramirez, the prosecutor implied that if a reasonable person
would not kill under the circumstances of this case, the legal
standard for provocation has not been met. We address each
category in turn.
                                 1
       In closing argument, the prosecutor argued a punch did not
justify the defendant shooting Zambrano in the back, and that
drinking and being a “jerk” did not justify or excuse Zambrano’s
shooting. The prosecutor made similar arguments that “you don’t
get to” shoot somebody because “you heard they punched your
friend or may have been rude or insulting.” The trial court
overruled Ramirez’s objection to the third of a total of four such
comments. Ramirez argues these comments conflated the law of
voluntary manslaughter with a justified or excusable killing,
constituting prosecutorial misconduct.
       The prosecutor’s comments were not prosecutorial
misconduct. The prosecutor never said the law barred the jury
from finding the alleged provocations caused Ramirez to act
without deliberation and reflection. Instead she argued a




                                4
reasonable person would not have acted in the heat of passion
based on what Ramirez heard and saw in this case. The first two
comments were made as the prosecutor was working her way
through the evidence, not when she discussed the elements of
homicide and voluntary manslaughter. The third comment
appears in the transcript four pages after the prosecutor stated
the law of voluntary manslaughter; it was part of her argument
that a reasonable person would not act in the heat of passion
based on what happened here. This was her theory of the case.
She was entitled to advance this theory in closing argument. The
same goes for her fourth comment: that shooting Zambrano
because you heard he punched your friend or was being rude at a
party was first degree murder, not manslaughter.
       Ramirez cites cases. According to the Najera case, it is
acceptable for a prosecutor to say a voluntary manslaughter
conviction would give a defendant a “break.” (People v. Najera
(2006) 138 Cal.App.4th 212, 220 (Najera).) But according to
Ramirez, the Peau case made it unacceptable for prosecutors to
call an imperfect self-defense instruction a “loophole.” (People v.
Peau (2015) 236 Cal.App.4th 823, 832 (Peau).)
       Ramirez incorrectly argues his case is more like Peau than
Najera. While explaining the elements of imperfect self-defense,
the Peau prosecutor indeed called imperfect self-defense a
“loophole.” (Peau, supra, 236 Cal.App.4th at p. 832.) But that
prosecutor went on to say “[i]mperfect self-defense doesn’t apply.
The defendant is not walking out of these doors using this excuse.”
(Ibid., italics added.) That prosecutor misleadingly suggested a
finding of imperfect self-defense would free the defendant.
Ramirez’s prosecutor did not.




                                5
       This prosecutor’s comments were more like those in Najera
than Peau. By arguing Ramirez’s behavior was not “justified” or
“excused,” she may have implied the jury would be giving him a
break if they reduced murder to manslaughter. That is different
from implying the jury would be letting him escape all criminal
punishment. And the court’s jury instructions told the jury a
finding of provocation could reduce the charge from murder to
voluntary manslaughter, not eliminate the charges altogether.
The prosecutor’s comments were not improper.
                                  2
       The second category of allegedly impermissible argument
involves two comments where, according to Ramirez, the
prosecutor implied that, if a reasonable person would not kill
under the circumstances of this case, the legal standard for
provocation has not been met. It is true the standard for
reducing murder to manslaughter under a heat of passion theory
is not whether a reasonable person would have killed in a similar
scenario, but whether a reasonable person would have acted
rashly or without deliberation. (Najera, supra, 138 Cal.App.4th
at p. 223, citing People v. Breverman (1998) 19 Cal.4th 142, 163.)
       Ramirez has forfeited this argument on appeal. A
defendant may not complain of prosecutorial misconduct on
appeal absent a timely and specific objection. (People v. Stanley
(2006) 39 Cal.4th 913, 952.) Ramirez did nothing. That is
forfeiture.
       Ramirez incorrectly says the doctrine of futility excused his
silence. This doctrine is inapplicable. (See People v. Clark (2011)
52 Cal.4th 856, 960.) Ramirez argues the trial court overruled
one of his objections. This does not demonstrate futility. (See
People v. Peoples (2016) 62 Cal.4th 718, 797.)




                                 6
       Alternatively, Ramirez argues his counsel was ineffective
because no plausible tactical reason could justify his decisions not
to object. Ramirez highlights two comments by the prosecutor.
The first was in the initial closing argument when the prosecutor
said, “[I]t is not reasonable that [the defendants] decided to go
kill Salvador Zambrano because he got drunk at a wedding
reception. That is not reasonable.” The second was during
rebuttal, when the prosecutor stated: “Ladies and gentlemen, a
person of average disposition in the same situation and knowing
the same facts. You’re reasonable people and think about it. You
hear about a fight. You’re going to go get a gun? That’s not
reasonable.”
       Ramirez argues these statements misled the jury and
misstated the law. Judicial scrutiny of counsel’s performance is
highly deferential. (Strickland v. Washington (1984) 466 U.S.
668, 689.) We presume counsel’s conduct falls within the wide
range of reasonable professional assistance. (Ibid.) Failure to
object rarely amounts to constitutionally ineffective
representation. (People v. Boyette (2002) 29 Cal.4th 381, 424.)
       Many sound reasons could explain the decisions not to
object to these comments. Counsel may have figured
counterargument held more rhetorical promise than a mere
objection. Or the jury may have looked bored, and the stimulus
of an objection may have awakened the jurors’ interest in a
counterproductive way. And so forth. We presume defense
counsel’s decisions about when and whether to object were
reasonable, and, based on the evidence before us, we do not
second-guess his tactics.




                                 7
                                     C
      There was no cumulative error because there were no
errors to cumulate.
                                     D
      Ramirez’s fourth argument concerns firearm
enhancements. This argument is illogical and invalid.
      Background is necessary. The jury convicted Ramirez of
second degree murder and found a gun allegation to be true
according to section 12022.53, subdivision (d). The People argued
this dictated a sentence of 40 years to life: 15 to life for the
second degree murder plus 25 to life for the gun enhancement
under that section, so 15 plus 25 equals 40. At sentencing,
Ramirez asked the court to strike the gun allegation, as section
12022.53, subdivision (h) allows but only when to do so would be
“in the interest of justice. . . .” The court refused because it did
not believe Ramirez’s bad conduct justified dismissing the
firearm allegation.
      Ramirez bases his argument on the fact the court, while
explaining why it would not further justice to strike this gun
enhancement, commented twice Ramirez would become eligible
for parole at the same time even if the court did reduce the
firearm enhancement. Ramirez says that is incorrect because
striking his gun enhancement would change his parole eligibility
date. With the 25-to-life gun enhancement, Ramirez would have
to wait until his 25th year of prison to become parole-eligible.
(See § 3051, subds. (b)(3), (a)(2)(B).) But if the court struck the
gun enhancement, that would make the 15-to-life term the
controlling offense. Section 3051 would then dictate Ramirez
would be eligible for parole during his 20th year of prison. (§
3051, subd. (b)(2).) So the court erred, Ramirez submits, by




                                 8
commenting that striking the gun allegation would not affect
Ramirez’s parole eligibility date, because striking the
enhancement would make him eligible for parole at the 20 year
mark instead of after 25 years.
       The trial court may have gotten the parole eligibility date
wrong, but that was not the reason it refused to strike the gun
enhancement. Nor was that the reason the court declined to
impose a lesser 10-year gun enhancement, as Ramirez’s counsel
also urged. (But see People v Tirado (2019) 38 Cal.App.5th 637,
641–644.) Rather, the trial court refused to strike the gun
enhancement because Ramirez’s shotgun assassination was
particularly reprehensible: pensively deliberate, in the teeth of
others begging him not to shoot, and cowardly: Ramirez shot
Zambrano in the back. The error was irrelevant.
       The court rejected leniency as contrary to justice. The fact
Ramirez might get parole earlier than the court thought possible
would not prompt a sentencing court to be more lenient under
these circumstances. This illogical argument fails.
                                   E
       Ramirez erroneously contends various assessments and a
fine should be vacated because he was entitled to a hearing on his
ability to pay. Ramirez forfeited this contention by failing to
object in the trial court. (See People v. Frandsen (2019) 33
Cal.App.5th 1126, 1153–1155.)
                                   F
       Ramirez contends and the People concede the abstract of
judgment does not reflect the court’s order that Ramirez’s
liability for the restitution orders to the victims in the amount of
$11,889 be joint and several with the other two defendants. The
trial transcript and minute order from the sentencing hearing
confirm the trial court ordered restitution to be joint and several




                                 9
with Semidey and Rodriguez. Accordingly, the abstract of
judgment must be amended.
                          DISPOSITION
      We direct the trial court to amend the abstract of judgment
to show restitution liability is joint and several. No hearing is
required. The judgment is affirmed in all other respects.



                                               WILEY , J.

I concur:




            BIGELOW, P. J.




                               10
STRATTON, J., Concurring and dissenting.

The Requested Pinpoint Instructions
       Although I concur in the result on this issue and agree that
ultimately appellant’s conviction should not be reversed because
the trial court refused to give the requested pinpoint instructions,
I write to set forth a different perspective on whether the trial
court erred in so refusing.
       Our Supreme Court has consistently held that in
appropriate circumstances, a trial court “ ‘may be required to give
a requested jury instruction that pinpoints a defense theory of
the case.’ ” (People v. Hartsch (2010) 49 Cal.4th 472, 500.)
Pinpoint instructions “ ‘ “relate particular facts to a legal issue in
the case or ‘pinpoint’ the crux of a defendant’s case.” ’ ” (People v.
Lujano (2017) 15 Cal.App.5th 187, 191.) A proper instruction
does not pinpoint evidence, it pinpoints the defendant’s theory of
the case. (People v. Ledesma (2006) 39 Cal.4th 641, 720
(Ledesma).)
       On request, “a criminal defendant is entitled to pinpoint
instructions that relate particular facts to an element of the
charged offense and highlight or explain a theory of the defense if
the instructions are supported by substantial evidence.” (People
v. Nelson (2016) 1 Cal.5th 513, 542 (Nelson).) A pinpoint
instruction must be given at a defendant’s request unless it
“incorrectly states the law, is argumentative, duplicative, or
potentially confusing [citation], or if it is not supported by
substantial evidence.” (People v. Moon (2005) 37 Cal.4th 1, 30;
People v. Mora and Rangel (2018) 5 Cal.5th 442, 498.)
       “In determining whether the evidence is sufficient to
warrant a jury instruction, the court does not determine the
credibility of the defense evidence, but only whether there was




                                  1
evidence, if believed by the jury, sufficient to raise a reasonable
doubt.” (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1418;
People v. Salas (2006) 37 Cal.4th 967, 982.)
      Here, the trial court gave the jury the following instruction
on voluntary manslaughter:
             “A killing that would otherwise be a murder is
      reduced to voluntary manslaughter if the defendant killed
      someone because of a sudden quarrel or in the heat of
      passion.
             “The defendant killed someone because of a sudden
      quarrel or in the heat of passion if:
                “1. The defendant was provoked;
                “2. As a result of the provocation the defendant
      acted rashly and under the influence of intense emotion
      that obscured his reasoning or judgment;
               “AND
                “3. The provocation would have caused a person of
      average disposition to act rashly and without due
      deliberation, that is, from passion rather than from
      judgment.
             “Heat of passion does not require anger, rage, or any
      specific emotion. It can be any violent or intense emotion
      that causes a person to act without due deliberation and
      reflection.
             “In order for heat of passion to reduce a murder to
      voluntary manslaughter, the defendant must have acted in
      the direct and immediate influence of provocation as I have
      defined it. While no specific type of provocation is required,
      slight or remote provocation is not sufficient. Sufficient
      provocation may occur over a short or long period of time.




                                 2
             “A desire for revenge does not qualify as a passion
      which would reduce a murder to voluntary manslaughter.
             “It is not enough that the defendant simply was
      provoked. The defendant is not allowed to set up his own
      standard of conduct. You must decide whether the
      defendant was provoked and whether the provocation was
      sufficient. In deciding whether the provocation was
      sufficient, consider whether a person of average disposition,
      in the same situation and knowing the same facts, would
      have reacted from passion rather than from judgment.
             “If enough time passed between the provocation and
      the killing for a person of average disposition to ‘cool off’
      and regain his or her clear reasoning and judgment, then
      the killing is not reduced to voluntary manslaughter on this
      basis.
             “The People have the burden of proving beyond a
      reasonable doubt that the defendant did not kill as the
      result of a sudden quarrel or in the heat of passion. If the
      People have not met this burden, you must find the
      defendant not guilty of murder.”

      Ramirez asked the court to also give the jury two pinpoint
instructions on voluntary manslaughter. The first was,
“[p]rovocation sufficient to reduce murder to voluntary
manslaughter may accumulate over a period of time and may be
based upon a series of acts.” Ramirez cited to the following
authority to support his request: People v. Le (2007)
158 Cal.App.4th 516, 525; People v. Wharton (1991) 53 Cal.3d
522, 569 (Wharton); People v. Berry (1976) 18 Cal.3d 509; and
People v. Borchers (1958) 50 Cal.2d 321. The second requested
jury instruction was, “[a] defendant may witness potential acts of




                                3
provocation and/or be informed of them afterwards.” Ramirez
supported this instruction with citations to People v. Brooks
(1986) 185 Cal.App.3d 687 (Brooks) and People v. Berry.
       The court agreed the requested pinpoint instructions were
accurate statements of law, but denied both requests. The court
told defendant he could argue these points to the jury, but
declined to include the instructions because it felt the case was
“just really at the border” of justifying the standard voluntary
manslaughter instruction.
       Ramirez argues this was error. The People do not argue
the requested instructions were inaccurate statements of the law;
rather, the trial court was not required to give them because they
were duplicative and unhelpful to the jury.
       The requested pinpoint instructions were simple,
straightforward statements of law; there was no risk of them
confusing the jury. Nor were they argumentative. An instruction
is argumentative if it directs the jury to consider specific
evidence. (Ledesma, supra, 39 Cal.4th at p. 720; Wharton, supra,
53 Cal.3d at p. 570.) Ramirez’s requested instructions did not
point to specific pieces of evidence in the record, they merely
pinpointed the crux of Ramirez’s defense theory: that a series of
provocative acts, some of which he witnessed and some of which
he heard about, caused him to act in the heat of passion when he
shot Zambrano. Interestingly, the trial court found no problem
with and sua sponte gave a pinpoint instruction to support the
People’s theory of prosecution: “A desire for revenge does not
qualify as a passion which would reduce a murder to voluntary
manslaughter.” I find Ramirez’s two proposed instructions were
just as mildly phrased in explicating his theory of defense.




                                4
       Nor were the instructions duplicative. Nothing in the
standard instruction given to the jury addressed the question
whether murder could be reduced to voluntary manslaughter if
the defendant did not witness the provocation, but learned of it
afterwards. Yet, this is the state of the law. (See Brooks, supra,
185 Cal.App.3d at p. 694.)
       With respect to the accumulation of provocative acts, the
standard instruction indicates that provocation may occur over a
long period of time, but it also states the provocation may not be
remote or slight, and that the defendant must have acted in the
direct and immediate influence of provocation. Ramirez’s theory
was that a number of provocative acts, each one of which might
not be sufficient on its own to cause a reasonable person to act in
the heat of passion, can build upon one another to the point
where a defendant may act rashly and without due deliberation
or reflection. I conclude that instructing the jury in this way does
not duplicate the standard instruction that provocation cannot be
remote or slight and must have exerted a direct and immediate
influence upon the defendant, yet can also occur over a long
period of time. In light of Ramirez’s theory of the case, it is not
unreasonable to conclude it would be potentially difficult for a
jury to reconcile these three concepts. Ramirez was therefore
entitled to an instruction informing the jury that an
accumulation of otherwise “slight” provocations, some of which
might be remote and some of which occurred right before or at
the time of the crime, could reduce murder to voluntary
manslaughter if the jury believed the sequence of provocations
would prompt a reasonable person to act in the heat of passion.
       The requested instructions were supported by substantial
evidence. Ramirez was not present when the victim punched




                                 5
Semidey; rather, he heard about this provocative act shortly after
it occurred and it was definitely the event that provoked him,
based on his statement “Who was the mother fucker who hit my
brother, my friend?” Then he saw the victim continuing to be
belligerent and disrespectful to the wedding guests when the
second confrontation occurred and Zambrano and his group
knocked Guzman to the ground. Ramirez also stated during his
police interview that he heard some of the women at the
reception had been hit by the person who caused the trouble.
While these facts may not have been sufficient to provoke a
reasonable person to act in the heat of passion without due
deliberation and reflection, the weight to be given this evidence
was within the province of the jury, not the trial court.
       Nevertheless, the error does not require reversal. Reversal
is required only if the court, after an examination of the entire
cause, including the evidence, finds that it is reasonably probable
that a result more favor to Ramirez would have been reached in
the absence of the error. (Wharton, supra, 53 Cal.3d at p. 571.)
The evidentiary premise of a provocation theory is the
defendant’s emotional reaction to the conduct of another, which
may negate a requisite mental state. (Nelson, supra, 1 Cal.5th at
p. 541.) The provocative conduct must be sufficient to “ ‘cause an
ordinary person of average disposition to act rashly or without
due deliberation and reflection.’ ” (People v. Manriquez (2005)
37 Cal.4th 547, 583–584.) “ ‘ “Heat of passion arises when ‘at the
time of the killing, the reason of the accused was obscured or
disturbed by passion to such an extent as would cause the
ordinarily reasonable person of average disposition to act rashly
and without deliberation and reflection, and from such passion
rather than from judgment.’ ” ’ ” (Id. at p. 584.)




                                 6
       There was strong and persuasive evidence that Ramirez did
not act in the absence of due deliberation and reflection. He went
to the corner where Zambrano and his group congregated a full
45 minutes after learning his friend had been punched at his own
wedding. Furthermore, not only did witnesses observe Ramirez
go back into the Avalanche after Zambrano’s wife and sister-in-
law pleaded with him not to shoot the gun, Ramirez himself told
officers that, while in the Avalanche, he sat down and “pretty
much thought what . . . I was gonna do.” “And, unfortunately,”
he continued, “I got off the truck, and I didn’t do the right thing.”
In acquitting Ramirez of first degree murder, the jury clearly did
not find this brief respite sufficient to support premeditation and
deliberation. Nevertheless, the brief respite countermands the
theory that Ramirez acted in such heat of passion as to mandate
a conviction of voluntary manslaughter. I cannot say it is
reasonably probable that a more favorable result would have
obtained absent the trial court’s error.

Firearm Enhancement
      I dissent from the majority’s analysis of the trial court’s
exercise of discretion as to the firearm enhancement. At
sentencing, Ramirez urged the court to strike the 25-year firearm
enhancement the jury found true under Penal Code1 section
12022.53, subdivision (d). Ramirez also requested that the court
impose a lesser ten-year enhancement under section 12022.52 if

1     All further statutory references are to the Penal Code.

2     Section 12022.5, subdivision (a) punishes an offender who
personally uses a firearm in the commission of a felony by a
lesser, additional and consecutive term of 3, 4, or 10 years.




                                 7
the court declined to strike the 25-year enhancement.3 The trial
court did not strike the 25-year enhancement and, in articulating
its decision, incorrectly stated that even if it reduced the
enhancement to ten years, Ramirez would not be eligible for a
youthful offender parole hearing until he had served 25 years in
prison.
       Section 3051, subdivision (b)(2) provides that “[a] person
who was convicted of a controlling offense4 that was committed
when the person was 25 years of age or younger and for which
the sentence is a life term of less than 25 years to life shall be
eligible for release on parole by the [Parole Board] during his or
her 20th year of incarceration at a youth offender parole hearing,
unless previously released or entitled to an earlier parole
consideration hearing pursuant to other statutory provisions.”
(Italics added.) Under section 3051, subdivision (b)(3), a person
under 25 who was convicted of a controlling offense carrying a life
term of 25 years to life is eligible for a parole hearing during his
or her 25th year of incarceration.

3      It is uncontested that the trial court could have imposed a
lesser, uncharged enhancement; it is also uncontested that the
trial court believed it had the authority to do so. Indeed, our
Supreme Court has “expressly permitted the substitution of a
charged enhancement with an uncharged enhancement that
‘would be applicable in any case’ in which the charged
enhancement applies.” (People v. Fialho (2014) 229 Cal.App.4th
1389, 1395, quoting People v. Strickland (1974) 11 Cal.3d 946,
961.)
4     The “controlling offense” is the offense or enhancement for
which the court imposed the longest term of imprisonment.
(§ 3051, subd. (a)(2)(B).)




                                 8
       Here, Ramirez’s controlling offense, for the purposes of
section 3051, is the 25-year firearm enhancement. That 25 years-
to-life sentence subjected him to section 3051, subdivision (b)(3),
that is parole consideration at his 25th year of incarceration.
However, had the court chosen to impose a 10-year firearm
enhancement under section 12022.5, his controlling offense would
have been the second degree murder conviction for which he was
sentenced to 15 years to life. He would therefore have been
eligible for parole consideration after serving 20 years under
section 3051, subdivision (b)(2).
       The court believed incorrectly that even if it reduced the
enhancement to 10 years, Ramirez would not have his parole
hearing until he served 25 years in prison. The court
misunderstood the impact of its decision on Ramirez’s future
parole eligibility date.
       The People acknowledge the court misunderstood the
impact of the available enhancements on Ramirez’s parole
eligibility date, but urge us to affirm the trial court, arguing it is
clear from the court’s comments the court would have imposed
the 25-year enhancement even if it had not been mistaken. The
People point out the trial court stated it would be inappropriate
to strike the firearm enhancement in this case because Ramirez
did not use the firearm reflexively; rather, he was begged not to
use the gun, went back into the Avalanche, thought about what
to do, and chose to shoot Zambrano in the back.
       The court’s statements, however, demonstrate only that the
court was unwilling to strike the firearm enhancement entirely,
not which firearm enhancement it believed “was best suited to
this case.” (People v. Morrison (2019) 34 Cal.App.5th 217, 223.)
A court which is unaware of the scope of its discretionary powers




                                  9
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. (Id. at p. 224.) Here,
the court clearly misunderstood the consequences of the exercise
of its discretion. This impacted its ability to exercise informed
discretion in considering the different impact of the various
available firearm enhancements on Ramirez’s parole eligibility
date.
       I also note the court stated at sentencing that it did not
believe the legislature granted the trial court discretion to strike
firearm enhancements “intending that every case where there
was a gun allegation would result in a court doing an aggravation
versus mitigation balancing as it would as if – as it would if
considering probation.” While this may be technically true in
that the law does not require a formal balancing of aggravating
and mitigating factors when deciding whether to impose a
firearm enhancement, the practical reality is that all sentencing
courts consider the interplay of various statutes within a complex
statutory sentencing scheme, and weigh the various options
available to them in fashioning a reasonable sentence. Here, the
court did just this when it stated it believed Ramirez would not
get a parole hearing at 25 years regardless of which enhancement
it imposed. Unfortunately, its analysis was incorrect.
       I would remand to the trial court with directions to exercise
its discretion whether to impose an alternative firearm
enhancement in full consideration of all applicable sentencing
statutes.




                                     STRATTON, J.




                                10
