People v. Riberal CA3

Filed 11/10/26 P. v. Riberal CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) THE PEOPLE, C104354 Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- v. 2013-0005786) BRANDON ROCKY RIBERAL, Defendant and Appellant. Defendant Brandon Rocky Riberal appeals following a resentencing in which the trial court denied his request under Penal Code section 1385 to strike or reduce certain firearm enhancements. (Statutory section citations that follow are to the Penal Code.) Defendant argues that, in reaching its decision, the court improperly relied on: (1) facts not found true by a jury beyond a reasonable doubt, in violation of his constitutional right to a jury trial; and (2) facts that were also elements of the firearm enhancements, in violation of the prohibition against dual use of facts. We reject defendant’s first claim and find the second claim forfeited. We affirm the judgment. FACTS AND HISTORY OF THE PROCEEDINGS In 2014, a jury found defendant guilty of murder (§ 187, subd. (a)); premeditated, willful, and deliberate attempted murder (§§ 187, 664); conspiracy to commit murder (§ 182, subd. (a)(1)); discharging a firearm from a motor vehicle (§ 26100, subd. (c)); carrying a concealed firearm by a gang member (§ 25400, subd. (c)(3)); carrying a loaded 1 firearm by a gang member (§ 25850, subd. (c)(3)); and participation in a criminal street gang (§ 186.22, subd. (a)). (People v. Riberal (Sept. 29, 2020, C077018) [nonpub. opn.] (Riberal) [2020 Cal. App. Unpub. LEXIS 6349.) 1 The jury found true the special circumstances that defendant was an active participant in a criminal street gang and committed the murder to further the activities of the gang (§ 190.2, subd. (a)(22)), and that the murder was committed while discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)). (Ibid.) The jury also found true numerous firearm, great bodily injury, and gang enhancements, including section 12022.53, subdivision (d) enhancements associated with the murder and attempted murder convictions. (Ibid.) The trial court sentenced defendant to life without the possibility of parole (LWOP) for the murder conviction and seven years to life for the premeditated attempted murder conviction. (Riberal, supra, C077018 [2020 Cal. App. Unpub. LEXIS 6349].) The trial court also ordered a sentence of 25 years to life each for two firearm enhancements associated with the murder and attempted murder convictions. (Ibid.) Defendant’s aggregate sentence was LWOP plus 57 years to life. (Ibid.) The court imposed and stayed the sentences on the remaining counts and enhancements pursuant to section 654. (Ibid.) On direct appeal, we reversed defendant’s vicarious firearm enhancements (§ 12022.53, subd. (e)(1)), the gang special circumstance (§ 190.2, subd. (a)(22)), and certain other gang enhancements. (Riberal, supra, C077018 [2020 Cal. App. Unpub. LEXIS 6349].) We vacated defendant’s sentence and remanded the matter for resentencing and for the trial court to consider whether to strike certain firearm enhancements. (Ibid.) 1 On our own motion, we take judicial notice of this court’s unpublished opinion in defendant’s appeal of the original judgment (Riberal, supra, C077018). (Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, subd. (a).) 2  On remand, when deciding whether to strike any of defendant’s firearm enhancements under section 1385, the trial court considered the presence of certain aggravating circumstances enumerated in California Rules of Court, rule 4.421. The court explained: “[1.] The crime did involve great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high-degree of cruelty, viciousness, or callousness. [¶] The crime involved shooting a number of victims. … [¶] 2. The defendant was armed or used a weapon during the commission of the offense. [¶] 3. The victims were particularly vulnerable. [¶] And, [¶] 8. The manner in which the crime was carried out indicates planning, sophistication, and professionalism.” The court ultimately declined to strike either of defendant’s section 12022.53, subdivision (d) firearm enhancements. The court again sentenced defendant to LWOP for the murder conviction; seven years to life for the attempted murder conviction; and 25 years to life for each of the section 12022.53, subdivision (d) enhancements associated with those convictions. Defendant’s aggregate sentence remained LWOP plus 57 years to life. Defendant’s appeal is timely. DISCUSSION I Use of Aggravating Circumstances Defendant first argues the trial court erred in finding and relying on aggravating circumstances to decline striking or reducing the section 12022.53, subdivision (d) enhancements. Defendant maintains that, by doing so, the trial court violated his constitutional rights to have a jury determine any fact used to increase his punishment. As relevant here, section 12022.53, subdivision (d) provides that “a person who … personally and intentionally discharges a firearm and proximately causes great bodily injury … or death … shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” Section 12022.53, subdivision (h) 3 provides that a “court may, in the interest of justice pursuant to section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.” Section 1385, subdivision (a), in turn, provides that a court may, “in furtherance of justice, order an action to be dismissed.” “Though section 1385 literally authorizes the dismissal of ‘an action,’ it has been construed to permit the dismissal of parts of an action [citation], including a weapon or firearm use enhancement.” (People v. Tirado (2022) 12 Cal.5th 688, 696.) Section 1385, subdivision (c) further provides that “the court shall dismiss an enhancement if it is in the furtherance of justice to do so. [¶] … In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the [enumerated] mitigating circumstances … are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” (§ 1385, subd. (c)(1)-(2).) Under the Fifth and Sixth Amendments to the United States Constitution, any fact, other than the fact of a prior conviction, “ ‘that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ ” (People v. Wiley (2025) 17 Cal.5th 1069, 1078 (Wiley).) In People v. Lynch (2024) 16 Cal.5th 730, our Supreme Court considered whether these constitutional guarantees were implicated by the determinate sentencing scheme set forth in section 1170, subdivision (b). Under that provision, an upper term sentence must be justified by circumstances in aggravation, and, except for the fact of a prior conviction, the facts underlying those circumstances must have been stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. (§ 1170, subd. (b)(1)-(b)(3).) Lynch ultimately concluded 4 that “a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence.” (Lynch, at p. 768.) In Erlinger v. United States (2024) 602 U.S. 821, the United States Supreme Court considered the scope of the prior conviction exception to the constitutional requirement. There, the defendant had pleaded guilty to unlawful possession of a firearm. (Id. at pp. 825-826.) As the United States Supreme Court explained, “a conviction for that offense ordinarily carried a sentence of up to 10 years in prison” but under a provision of the Armed Career Criminal Act, the punishment increased to a minimum of 15 years and a maximum of life “if the defendant ha[d] three prior convictions for ‘violent felon[ies]’ or ‘serious drug offense[s]’ that were ‘committed on occasions different from one another.’ ” (Erlinger, at p. 825.) The United States Supreme Court rejected the argument that the prior conviction exception “permit[ted] a judge to find … any fact related to a defendant’s past offenses, including whether he committed them on different occasions.” (Id. at p. 837.) Instead, “a judge may ‘do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.’ ” (Id. at p. 838.) Shortly thereafter, in Wiley, our Supreme Court applied Erlinger to conclude that the defendant’s constitutional right to a jury trial was violated when the trial court adjudicated certain facts related to his prior convictions in choosing to impose the upper term under section 1170, subdivision (b). (Wiley, supra, 17 Cal.5th at p. 1076.) Defendant selectively quotes from Lynch, Erlinger, and Wiley to argue that a jury was required to find any facts the trial court relied on when declining to strike or reduce his section 12022.53, subdivision (d) enhancements. Defendant confuses the issue. Here, it is undisputed that a jury found true the section 12022.53, subdivision (d) firearm enhancements, which provide for “an additional and consecutive term of imprisonment in the state prison for 25 years to life.” Section 1385 authorizes a trial court to strike or dismiss those enhancements in certain circumstances. But, unlike in the 5 cases cited by defendant, any facts the trial court considered in reaching a decision under section 1385 did not operate to increase defendant’s potential punishment beyond the punishment already set forth in section 12022.53, subdivision (d). As the United States Supreme Court explained in Cunningham v. California (2007) 549 U.S. 270: “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [¶] … [¶] ‘Our precedents make clear ... that the “statutory maximum” for [these] purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ ” (Id. at pp. 274-275, 283, first italics added.) In this case, the facts the trial court relied on to deny relief under section 1385 were not “ ‘fact[s] that expose[d] … defendant to a greater potential sentence’ ” (Wiley, supra, 17 Cal.5th at p. 1078), as the court was already authorized to impose a sentence of 25 years to life imprisonment for the enhancements by virtue of the jury’s verdict. Accordingly, we reject defendant’s claim that the court erred in relying on facts not proven beyond a reasonable doubt to a jury when declining to strike or reduce his section 12022.53, subdivision (d) enhancements. II Dual Use of Facts Defendant next argues the trial court erred by relying on certain aggravating circumstances when declining to strike or reduce the section 12022.53, subdivision (d) firearm enhancements. He submits that two of the aggravating circumstances cited—that the crime “involve[d] great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high-degree of cruelty, viciousness, or callousness” and that “defendant was armed or used a weapon during the commission of the offense”—were also elements of the firearm enhancement. Defendant contends that the prohibition of 6 dual use of facts in sentencing prohibited the court from relying on these aggravating circumstances when rendering its decision under section 1385. The People correctly respond that defendant has forfeited this claim by failing to object on this basis below. “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) “Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing.” (Id. at p. 353.) Defendant insists he preserved this issue for appeal by generally asking the court to strike the firearm enhancements. We disagree. (See People v. de Soto (1997) 54 Cal.App.4th 1, 7, 8 [though defendant raised general objection to sentence, “by failing to raise sufficiently specific objections at the time of sentencing, defendant … waived his right to claim” the court violated the dual use prohibition].) DISPOSITION The judgment is affirmed. /s/ HULL, J. We concur: /s/ EARL, P. J. /s/ ROBIE, J. 7