People v. Perry CA5, F079881A

Background

Desmond Perry was convicted of two counts of murder (premeditation allegations not found) and one count of shooting at an occupied dwelling; jury found he personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53(d)).
The trial court imposed consecutive indeterminate terms: two consecutive 15‑to‑life terms for the murders plus two consecutive 25‑to‑life firearm enhancements (total 80‑to‑life); the enhancement on the shooting count was stayed under former § 654.
At sentencing the court declined Perry’s motion under former § 1385 to strike the firearm enhancements; defense argued alternatively the court could substitute a lesser uncharged § 12022.53 enhancement.
On initial appeal this court affirmed (Perry I); the California Supreme Court granted review and transferred the case back for reconsideration in light of People v. Tirado (2022).
On reconsideration this court applied Tirado, held Perry is entitled to resentencing so the trial court can consider striking the § 12022.53(d) enhancements and, if appropriate, impose lesser § 12022.53(b) or (c) enhancements for the murder counts; the court affirmed the denial of relief under former § 1385 and affirmed consecutive sentences.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court may strike a §12022.53(d) finding and impose a lesser, uncharged §12022.53(b) or (c) enhancement	People: trial court lacked authority to modify an enhancement the jury found true	Perry: trial court may, under §1385 and §12022.53(j), strike (d) and impose (b) or (c)	Court: Under People v. Tirado, trial court may strike (d) and impose (b)/(c) when (d) necessarily includes (b)/(c); remand for resentencing on counts 1–2.
Whether counsel was ineffective for not requesting substitution of a lesser enhancement	People: counsel’s failure not prejudicial or was reasonable given then‑controlling authority	Perry: counsel was ineffective because the request could have led to a lesser sentence	Court: did not decide ineffectiveness on reconsideration; remand ordered so court can exercise discretion under Tirado.
Whether trial court abused discretion by refusing to strike firearm enhancements under former §1385	People: denial was reasonable based on evidence and jury verdict	Perry: court failed to adequately consider mitigation and abused discretion	Held: No abuse — court’s denial was within broad sentencing discretion under law as it then stood.
Whether imposition of consecutive sentences was an abuse of discretion	People: consecutive terms appropriate given multiple victims and facts	Perry: absent aggravating factors, concurrent sentences required	Held: No abuse — multiple victims alone support consecutive indeterminate terms.

Key Cases Cited

People v. Tirado, 12 Cal.5th 688 (Cal. 2022) (trial court may strike a §12022.53(d) enhancement and impose §12022.53(b) or (c) when a (d) finding necessarily includes those lesser findings)
People v. Morrison, 34 Cal.App.5th 217 (Cal. Ct. App. 2019) (trial court may substitute a lesser, uncharged §12022.53 enhancement)
People v. Gutierrez, 58 Cal.4th 1354 (Cal. 2014) (remand required when sentencing court unaware of the scope of its discretion)
People v. Carmony, 33 Cal.4th 367 (Cal. 2004) (standard of review for §1385 dismissal/striking is abuse of discretion)
People v. Shaw, 122 Cal.App.4th 453 (Cal. Ct. App. 2004) (multiple victims may justify consecutive sentences)
People v. McDavid, 77 Cal.App.5th 763 (Cal. Ct. App. 2022) (retrospective application of Tirado in nonfinal cases)