The opinion
Filed 9/20/24 P. v. Jacobson CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
A164149
Plaintiff and Respondent,
v.
(Contra Costa County
NICHOLAS WADE JACOBSON, Super. Ct. No. XX-XXXXXXX-7)
Defendant and Appellant.
On a night in June 2017, Nicholas Wade Jacobson fatally shot Robert
Frazier, for which a jury convicted him of first degree murder and possessing
a firearm as a felon, while finding true an allegation that he personally
discharged a firearm causing death. (Pen. Code, §§ 187, subd. (a), 29800,
subd. (a)(1), 12022.53, subd. (d).)1 After the verdict—and represented by new
counsel—Jacobson moved for a new trial. He argued that the prosecutor
committed prosecutorial error by eliciting false evidence in violation of Napue
v. Illinois (1959) 360 U.S. 264 (Napue), and that his trial attorney provided
ineffective assistance of counsel by not using available video evidence to
disprove the allegedly false evidence. The trial court denied the motion and
sentenced Jacobson to 50 years to life, which included 25 years to life for the
firearm enhancement (hereafter section 12022.53(d) enhancement).
1 All undesignated statutory citations are to the Penal Code.
On appeal, Jacobson contends the false evidence requires reversal of
the judgment of conviction, or that it and the ineffective assistance of counsel
each require reversal with directions to order a new trial. We disagree that
the alleged false evidence requires reversal, decline to reach the ineffective
assistance claims on this direct appeal, and thus affirm his convictions.2 He
also claims we must remand for resentencing because the trial court was
unaware of its discretion to strike the firearm enhancement and impose a
lesser enhancement, rather than impose none at all. We agree. We will
remand for resentencing so the trial court may determine whether to strike
the section 12022.53(d) enhancement and, if so, whether to impose an
appropriate lesser uncharged statutory enhancement. (See People v. Tirado
(2022) 12 Cal.5th 688, 692 (Tirado).)
BACKGROUND3
For a period of time not specified in the record, but ending at least a
year before the June 2017 shooting, Jacobson dated Maria B. (Mimi). Their
2 In a related petition for habeas corpus (case No. A169767), Jacobson
raises multiple grounds for relief. They include claims of prosecutorial error
involving assertedly false evidence and claims of ineffective assistance of
counsel encompassing the substance of the ineffective assistance claim raised
on this appeal. By separate order issued today, we grant the petition in part,
requiring the Department of Corrections and Rehabilitation to show cause
why relief should not be granted on one claim of ineffective assistance that is
factually distinct from Jacobson’s claims on appeal, and otherwise deny the
petition.
3 In this section, we recite facts that the prosecution offered in evidence
at trial to support their theory of the case. Jacobson has not made a
substantial evidence challenge to the jury’s verdict. As noted (see fn. 2, ante)
he has filed a petition for writ of habeas corpus, in which he contends the
prosecutor used false evidence to induce the jury to find certain facts, and
that his counsel provided ineffective assistance by failing to use video
evidence to show what Jacobson contends are the true facts. On appeal, he
has raised some of the same claims. Our recitation of facts based on evidence
2
romantic relationship ended in 2016 or earlier, but he called Mimi repeatedly
during the first half of 2017. In May 2017, Mimi began dating Frazier, a
large, muscular man who worked security at a nightclub in Concord (the
club). Frazier knew of Mimi’s past relationship with Jacobson.
A week or two before the shooting, Jacobson was asked to leave the
club. On the night of the shooting, he had reserved a table at the club.
Although Frazier was not working that night, he knew of Jacobson’s
reservation, and he and Mimi planned to meet at the club.
The club’s entrance door did not open onto the sidewalk; instead, a
walkway led from the sidewalk to the door. A rope line on the sidewalk
funneled people approaching the club to the walkway. Security cameras
recorded the walkway, the rope-lined stretch of sidewalk, and the club’s
interior.
Mimi arrived at the club shortly after 11:45 p.m. A minute later,
Jacobson arrived at the club with a friend. Security camera video showed
they entered without being searched. Jacobson was wearing a collared shirt.
Once inside the club, however, he removed it and spent the rest of the night
in a T-shirt. At 1:00 a.m., Frazier arrived with a friend. Security camera
video showed they too were not searched.
Evidence at trial indicated that, during the nearly two hours he was at
the club, Jacobson got drunk, groped Mimi and two female servers, including
A.A., and danced in a sexually aggressive way with Mimi. A.A. testified that,
after Frazier entered the club, Mimi moved between the two men’s tables,
which upset Jacobson. Just after 1:35 a.m., Mimi led Jacobson off the floor to
talk to security. Frazier followed but did not become involved in the
offered at trial is not meant to establish the veracity of any such facts but
only to provide context for analyzing, based on the record at trial, the issues
raised on appeal.
3
conversation. A security guard, M.M., asked Jacobson to leave, and he
agreed.
At 1:44 a.m., Jacobson walked out of the club and down the
entranceway to the sidewalk. About 15 seconds later, he briefly returned to
the entrance to insist on shaking hands with a security guard in the club
named Alfonso who had, earlier in the night, accused Jacobson of “grabbing
on” his girlfriend. Jacobson then walked back to the sidewalk and proceeded
to a Chevy Suburban parked about 40 yards away.
While Jacobson was at his vehicle, Frazier walked out of the club to the
sidewalk, leaving the club about 35 seconds after Jacobson’s handshake with
Alfonso. Jacobson then walked back from his vehicle toward the club.
According to M.M., Jacobson and Frazier had a brief verbal confrontation on
the sidewalk between the club entrance and the location of Jacobson’s vehicle,
outside the cameras’ view, and then separated. Jacobson walked a second
time to his Suburban.
About 10 seconds later, Jacobson walked quickly back toward the club.
Frazier stepped in his path, saying, “Fuck this shit.” Jacobson said, “What’s
up? Do you want to do this?” or “Let’s do this.” He drew a handgun from his
waistband. With one hand, Frazier reached for the gun; with the other he
threw a punch. The men struggled briefly over the gun until Jacobson pulled
the trigger once. The bullet pierced Frazier’s heart; he collapsed and soon
died. Jacobson fled in the Suburban but was later apprehended after
crashing a different vehicle.
The district attorney charged Jacobson with murder (§ 187, subd. (a)),
with an enhancement for personally and intentionally firing a gun causing
great bodily injury and death (§ 12022.53, subd. (d)), and with possessing a
4
firearm as a felon (§ 29800, subd. (a)(1)). The case proceeded to trial in
March 2021.
In his opening statement, the prosecutor identified jealousy as a central
motive for the shooting. He noted that M.M., the security guard, would
testify that security at the club “will pat search people before they enter the
[club] to make sure that weapons aren’t brought into the club.” The
prosecutor also stated that, after being asked to leave the club, Jacobson
went to his vehicle and “instead of driving home . . . grabbed a handgun,”
returned, and shot Frazier.
When M.M. took the stand, the prosecutor asked him about the club’s
search procedure, and he testified: “We do a full search. No in-and-outs.
Once you go in, you are searched.” M.M. testified that everyone was
supposed to be searched, but that he did not recall if he searched Jacobson
that night. Neither party offered other evidence about searches or played the
video that showed Jacobson and Frazier, and their respective friends, each
enter the club without being searched.
In his initial closing statement, the prosecutor argued that, after the
first confrontation with Frazier on the sidewalk outside the club, Jacobson
went to his vehicle to get a gun. The prosecutor described Jacobson’s choice
“to return with the gun” as evidence of the premeditation required for first
degree murder. (§ 189, subd. (a).) The prosecutor also identified as evidence
of premeditation that Jacobson brought a gun that night to the area of the
club and, before confronting Frazier, hid the gun in his waistband.
In his closing argument, Jacobson’s attorney, Erik Babcock, contended
it had been Frazier who was jealously focused on Jacobson, while no evidence
showed Jacobson knew of Frazier’s relationship with Mimi. Babcock argued
there was no evidence that Jacobson’s purpose in walking back toward the
5
club was to confront Frazier, and there was another explanation: Jacobson
came back to get the collared shirt he had left behind. When the physically
imposing Frazier stepped angrily in his path and threw a punch, Jacobson
acted in self-defense.
In his closing rebuttal argument, the prosecutor noted A.A.’s testimony
that Mimi’s attention to Frazier in the club had upset Jacobson. The
prosecutor stated several times that Jacobson went to his vehicle to “get” or
“grab” a gun. He also argued that Jacobson’s past experience with the search
policy had led him to leave the gun in his vehicle when he arrived that night:
“He had been kicked out of the [club] beforehand. He had also been pat
searched beforehand because it had been stated by [M.M.] that everybody
gets pat searched. He knew what he was doing when he brought the gun
with him and left it in the car. He knew exactly what he was doing when he
went and got that gun.” After asking rhetorically, “What’s the evidence of
premeditation and deliberation?” the prosecutor stated, “Over 40 yards to and
from that Suburban all the time to weigh and reflect. Nobody is following
me. I can just go home.” But Jacobson “decided that he wanted to grab a
gun,” confront Frazier, and make him back down or else shoot him.
The jury convicted Jacobson on both charges and found the allegations
supporting the firearm enhancement true.
Before sentencing, Jacobson moved for a new trial. His new attorneys
submitted video clips—excerpted from the full video files submitted at trial—
that showed him and Frazier each enter the club without being searched. As
relevant here, Jacobson claimed the prosecutor violated Napue, supra,
360 U.S. 264 by offering false evidence that everyone entering the club was
searched and by assertedly arguing that, because Jacobson had been
searched, he could not have had a gun, so he must have gone to his vehicle to
6
get one. Jacobson claimed this argument was “crucial to proving the element
of premeditation and deliberation.” He also argued that Babcock provided
ineffective assistance of counsel by not using the video to rebut the
prosecutor’s argument by noting that Jacobson could have had the gun all
night, rather than having gone to his car to retrieve the gun after an initial
confrontation with Frazier.
The prosecutor opposed the new trial motion. After a hearing in
October 2021, the trial court denied it. For several reasons, the court found
no prejudicial violation of Napue. It also found no ineffective assistance of
counsel.
At sentencing, the trial court denied Jacobson’s request to strike the
firearm enhancement (§ 12022.53, subd. (d)). It sentenced him to 50 years to
life, which included 25 years to life on the enhancement.
DISCUSSION
I.
Jacobson Has Not Shown Prosecutorial Error.
Jacobson claims the prosecutor denied him due process by eliciting
false evidence, in violation of Napue, supra, 360 U.S. 264, to prove the
premeditation element of first degree murder. (§ 189, subd. (a).) Jacobson
describes the alleged violation as follows. Despite knowing from the video
that Jacobson had entered the club without being searched, the prosecutor
elicited false testimony that security searched all guests and then relied on it
to argue Jacobson was searched that night. The prosecutor based his theory
of premeditation on that false premise by arguing that, because Jacobson had
been searched, he could not have had a gun in the club, so his purpose in
going to his vehicle before the shooting must have been to get one, which
showed premeditation.
7
Claims that a prosecutor elicited false evidence or made a deceptive
argument are claims of prosecutorial error. (People v. Avila (2009) 46 Cal.4th
680, 711; People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853–854
(Daveggio) [preferring “prosecutorial error” over “prosecutorial misconduct”].)
The standards governing such claims are well settled: Prosecutorial error
“occurs, as a matter of state law, when a prosecutor ‘engage[s] in deceptive or
reprehensible tactics in order to persuade the trier of fact to convict.’ ” (Id. at
p. 854.) Federal constitutional error occurs only if a prosecutor’s conduct
made a trial “ ‘so unfair that the resulting conviction violates the defendant’s
right to due process of law.’ ” (Ibid.) The use of false evidence qualifies as
federal constitutional error. (Napue, supra, 360 U.S. at pp. 265, 269 [due
process bars conviction secured by eliciting or failing to correct false
evidence].)
Jacobson’s claim fails for three reasons: He has identified no false
evidence, the prosecutor never argued Jacobson was searched that night, and
the prosecutor’s actual argument was not improper. First, Jacobson
identifies no false evidence. Here, the only evidence about searches was
M.M.’s testimony, and Jacobson has not shown it to be false. The prosecutor
asked M.M. if the club had a “procedure in place . . . for searching people” to
keep out things “you don’t want in the club.” He answered, “We do a full
search. No in-and-outs. Once you go in, you are searched.” On cross-
examination, he affirmed “everyone is supposed to be pat-searched before
they come in.” On the night of the shooting, he oversaw searches when he
was at the entrance, but he was not at the entrance all night. He recalled
searching unspecified “people” that night but did not recall if he searched
Jacobson.
8
The video does not show any of that testimony to be false. It shows
only that one or two guards that night allowed some guests—including
Jacobson and Frazier—to enter without being searched. Jacobson does not
claim M.M. himself let guests enter without being searched or was aware of
other guards doing so. Jacobson thus has not shown M.M.’s testimony was
untruthful, or that the policy did not exist. To the contrary, the video on
which he relies shows guards searching many guests. His own motion for a
new trial acknowledged that M.M. “appeared to have been correct about the
club’s general policy of searching male patrons.”
Because Jacobson has identified no false evidence, we next assess his
claim under state law barring the use of deceptive means to persuade a jury.
(Daveggio, supra, 4 Cal.5th at p. 854.)4 As such, the claim fails for the second
reason noted above: The prosecutor never stated Jacobson was searched that
night. Instead, the prosecutor stated he “brought a gun with him in that
Suburban” and later decided to “go to his car, get the gun,” and “return with
[the] gun.” Contrary to Jacobson’s assertions, the prosecutor never argued he
could not have had a gun in the club, or had to get one from his car, because
he was searched that night.
4 Jacobson briefly asserts federal due process bars the use of “false or
misleading argument,” but neither decision he cites holds that “false
argument” alone, without false evidence, can violate due process. (See Miller
v. Pate (1967) 386 U.S. 1, 7 [conviction obtained by “use of false evidence”];
People v. Sakarias (2000) 22 Cal.4th 596, 633 [referring to “use of false
evidence or argument” but not applying “false argument” concept].) In any
event, it does not matter if “false or misleading argument” alone can violate
due process, for Jacobson cites no federal due process standard defining “false
or misleading argument,” let alone one differing from the state law standard
barring use of “ ‘deceptive . . . tactics.’ ” (Daveggio, supra, 4 Cal.5th at
p. 854.)
9
The third reason Jacobson’s claim fails is that the prosecutor’s actual
argument was not deceptive. He referred only once to Jacobson having been
“searched,” and his words referred to a previous night. He stated Jacobson
“had been kicked out of the [club] beforehand. He had also been pat searched
beforehand because it had been stated by [M.M.] that everybody gets pat
searched. He knew what he was doing when he brought the gun with him and
left it in the car.” (Italics added.) In context, “beforehand” meant before that
night: Because Jacobson had been searched before the night of the shooting,
he chose when he arrived at the club that night to leave his gun in his car.
Such an argument is well within a prosecutor’s “ ‘ “wide latitude to
vigorously argue” ’ ” a case and fairly comment on the evidence, which
includes urging reasonable inferences. (People v. Peoples (2016) 62 Cal.4th
718, 796.) While it is true that the club’s security guards did not follow the
search policy strictly on the night of the murder, the same video evidence on
which Jacobson relies shows that many patrons were searched on that
night—which, as we have noted, led Jacobson to acknowledge below “the
club’s general policy of searching male patrons.” At oral argument in this
appeal, Jacobson’s counsel emphasized the lack of evidence that Jacobson had
been searched on prior visits to the club, but nor was there evidence that he
had not been searched each time he frequented the club in the past. Thus,
contrary to appellate counsel’s assertions, it was not improper to urge the
jury to infer from M.M.’s testimony about the search policy, coupled with
evidence that Jacobson had visited the club previously, that Jacobson had
been searched on one or more prior visits, and the experience led him to leave
his gun in his vehicle when he arrived and parked that night. Whether the
inference was sound was for the jury to decide. (People v. Warren (1988)
45 Cal.3d 471, 485, fn. 1.)
10
At oral argument, appellant relied on a decision recently issued by our
colleagues in Division Two, In re Hill (Aug. 2, 2024, No. A166191)
__ Cal.App.5th __ [2024 Cal.App.Lexis 541], for the proposition that a
defendant can base a Napue claim on a showing that the prosecutor exploited
a misleading impression created by testimony that may have been true “ ‘in a
narrow, literal sense’ ” but was highly misleading in effect. (Id. at p. __
[2024 Cal.App.Lexis 541 at p. *39].) Hill is distinguishable from our case, for
it involved an unusual “multilayered” Napue claim based on misleading
testimony that the jury never heard, which concerned facts unrelated to the
crime, but which the prosecutor used to persuade the court to admit
incriminating evidence that the jury did hear. (Id. at p. __
[2024 Cal.App.Lexis 541 at p. *30].) A witness named McCray made a
statement to police implicating Hill as the killer, and himself as an
accomplice. (Id. at p. __ [2024 Cal.App.Lexis 541 at p. *4].) At Hill’s
preliminary hearing, McCray testified that he had not been “promised any
kind of leniency . . . if [he] would have testified” in the case. (Id. at p. __
[2024 Cal.App.Lexis 541 at p. *18].) At trial, the prosecutor called McCray,
who invoked the Fifth Amendment. (Ibid.) After the prosecutor declined to
provide McCray immunity, the court accepted his Fifth Amendment claim
and found him “unavailable” to testify. (Id. at p. __ [2024 Cal.App.Lexis 541
at p. *21].) On that basis, the court allowed the prosecutor to offer McCray’s
statements to police into evidence under a hearsay exception dependent on
the declarant being unavailable to testify. (Ibid.)
Hill based his habeas petition on his discovery, 20 years later, of a
letter the district attorney had sent to McCray’s counsel—before the
preliminary hearing—promising not to prosecute McCray. (In re Hill, supra,
__ Cal.App.5th at p. __ [2024 Cal.App.Lexis 541 at pp. *31–32].) The People
11
argued McCray’s preliminary-hearing testimony was not false because the
letter had not expressly tied its promise to future testimony. (Id. at p. __
[2024 Cal.App.Lexis 541 at p. *33].) Disagreeing, Division Two found it
“difficult . . . to view the prosecutor’s refusal to grant immunity to a witness it
has secretly promised not to prosecute as anything other than gaming the
system.” (Id. at p. __ [2024 Cal.App.Lexis 541 at p. *44].) The prosecutor
thus allegedly leveraged misleading preliminary hearing testimony to deceive
the judge about the validity of a witness’s invocation of the Fifth Amendment,
in order to secure the admission of hearsay statements incriminating the
defendant in a way preventing the defendant from cross-examining the
witness. (Id. at p. __ [2024 Cal.App.Lexis 541 at pp. *31–32].)
Our case is nothing like that.5 Unlike the prosecutor in Hill, the
prosecutor here did not conceal anything from the defense or impair its
ability to cross-examine witnesses. (See In re Hill, supra, __ Cal.App.5th at
pp. __, __[2024 Cal.App.Lexis 541 at pp. *70–71, *31–32] [holding that
concealment of promise not to prosecute violated Brady v. Maryland (1963)
373 U.S. 83, and noting large “overlap” between Napue and Brady claims].)
Instead, the prosecutor relied on truthful testimony about the Club’s search
5 While Jacobson has pointed out in this appeal certain inaccurate
testimony about searches given by M.M. at the preliminary hearing as
background for his claims of ineffective assistance of counsel, he has never
contended that the prosecutor used the false preliminary hearing testimony
in a way supporting relief under Napue. Nor did he request at oral argument
that he be permitted to newly assert a Napue claim based on the preliminary
hearing testimony. In any event, Hill is distinguishable, for the prosecutor
there relied on the false preliminary hearing testimony to persuade the judge,
at trial, to admit certain otherwise-inadmissible evidence, which the jury
heard. (In re Hill, supra, __ Cal.App.5th at p. __ [2024 Cal.App.Lexis 541 at
p. *39].) Here, Jacobson has never suggested the prosecutor made use of
M.M.’s inaccurate preliminary hearing testimony in a way that affected the
course of his trial.
12
policy, evidence that Jacobson had been to the club before, and a potentially
reasonable inference that because he was searched on a prior visit, that
experience led him to leave his gun in his vehicle when he arrived and parked
that night. Nothing prevented defense counsel from noting, as Jacobson’s
appellate counsel did at oral argument, the lack of evidence that Jacobson
had in fact been searched on prior visits, and arguing the opposite inference.
It was properly left up to the jury to agree with the prosecutor’s suggested
inference or not.
In sum, Jacobson has not shown that M.M.’s testimony was false, that
the prosecutor argued a fact he knew to be false, or that the argument he did
make was deceptive. He thus has not shown prosecutorial error.
II.
Jacobson’s Ineffective Assistance of Counsel Claim Should Be
Addressed on Habeas Review.
Jacobson also challenges the denial of his new trial motion. As relevant
here, he sought a new trial based on a claim that Babcock was ineffective for
not using the video to argue that, because Jacobson was not searched when
entering the club, he could have had a gun all night.6 The court denied his
ineffective assistance claim because Babcock had not explained why he did
not make that argument and the court perceived potential tactical reasons
not to do so, and also concluded Jacobson suffered no prejudice. Jacobson
contends the court erred, but we conclude that his ineffective assistance claim
is more properly reviewed by way of his pending petition for writ of habeas
corpus, which raises the same issues on a fuller record.
6 Jacobson also sought a new trial based on the alleged violation of
Napue, supra, 360 U.S. 264. Because no such violation occurred, we need not
assess the trial court’s stated reasons for declining to order a new trial on
that basis.
13
As our Supreme Court has explained, it is generally “inappropriate for
an appellate court to speculate as to the existence or nonexistence of a
tactical basis for a defense attorney’s course of conduct when the record on
appeal does not illuminate the basis for the attorney’s challenged acts or
omissions, [so] a claim of ineffective assistance is more appropriately made in
a habeas corpus proceeding, in which the attorney has the opportunity to
explain the reasons for his or her conduct. ‘Having afforded the trial attorney
an opportunity to explain, courts are in a position to intelligently evaluate
whether counsel’s acts or omissions were within the range of reasonable
competence.’ ” (People v. Wilson (1992) 3 Cal.4th 926, 936.) Accordingly,
appellate courts will reverse a conviction for ineffective assistance on direct
appeal “only if (1) the record affirmatively discloses counsel had no rational
tactical purpose for the challenged act or omission, (2) counsel was asked for
a reason and failed to provide one, or (3) there simply could be no satisfactory
explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
We conclude that, on the limited record on appeal, Jacobson has not
shown any of the conditions listed in People v Mai to be satisfied in a way
overriding the interests that favor resolving claims of ineffective assistance
via habeas review—especially when, as here, a defendant has concurrently
filed a habeas petition raising the same claims.
III.
The Case Must Be Remanded for Resentencing.
Finally, Jacobson claims we must remand for resentencing because the
trial court did not realize the full scope of its sentencing discretion when it
declined to strike his 25-year-to-life enhancement for personally and
intentionally discharging a firearm causing Frazier’s death (§ 12022.53,
subd. (d)). We agree.
14
The prosecution urged the trial court to impose consecutive terms of
25 years to life for murder, 25 years to life for the enhancement, and an
upper term of 3 years for possessing a firearm as a felon, for a total of
53 years to life. Jacobson, by contrast, asked the court to strike the
enhancement and stay imposition of sentence on the possession count.
Neither party mentioned the possibility of striking the section 12022.53(d)
enhancement and imposing a lesser enhancement.
At the October 2021 sentencing hearing, the trial court stated, “I’m well
aware that I have discretion to strike the [section] 12022.53(d)
enhancement.” But it never expressed a view as to whether, if it struck the
enhancement, it would have discretion to impose a lesser, uncharged
enhancement. After declining to strike the enhancement, it sentenced
Jacobson to 25 years to life for the murder, a consecutive term of 25 years to
life on the enhancement, and a concurrent two-year midterm for possessing a
firearm as a felon.
At the time of the sentencing hearing, it was uncertain whether a trial
court had discretion to strike a section 12022.53(d) enhancement and then
impose a lesser, uncharged firearm enhancement, or had only a “binary”
discretion either to impose or to strike a section 12022.53(d) enhancement.
(Tirado, supra, 12 Cal.5th at pp. 692, 694.) Section 12022.53 created “a
tiered system of sentencing enhancements for specified felonies involving
firearms.” (Tirado, at p. 692.) Subdivisions (b), (c), and (d) mandate
enhancements of 10 years for personally using a firearm during such a felony,
20 years for personally and intentionally discharging a firearm, and 25 years
to life for doing so and causing great bodily injury or death. (Tirado, at
p. 695, citing § 12022.53, subds. (b)–(d).) As enacted, the statute barred trial
courts from striking those enhancements. (Tirado, at p. 695.) But in 2017,
15
the Legislature amended it to enable courts to do so in the interest of justice.
(Id. at p. 696, citing Stats. 2017, ch. 682, § 2.)
Following that amendment, Courts of Appeal disagreed as to whether a
trial court could strike a section 12022.53(d) enhancement and then impose a
lesser, uncharged enhancement. (Tirado, supra, 12 Cal.5th at p. 696.) In
2019, our Supreme Court granted review to resolve the split. (People v.
Tirado, review granted Nov. 13, 2019, S257658.) When the trial court
sentenced Jacobson in 2021, the Supreme Court’s review was still pending.
Three months after Jacobson was sentenced, the Supreme Court issued
Tirado, supra, 12 Cal.5th 688. It held trial courts have discretion—after
striking a section 12022.53(d) enhancement—to impose a lesser, uncharged
firearm enhancement. (Tirado, at p. 697.)
Based on that clarification of the law, Jacobson contends he is entitled
to a remand for resentencing, so the court can exercise a discretion it did not
realize it had. The Attorney General disagrees on two grounds. Neither has
merit. The first is a misguided claim that Jacobson has not overcome the
presumption a trial court knew and applied governing law. (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1390.) The People argue that, given the
grant of review in Tirado almost two years before Jacobson’s sentencing, we
must presume the court knew of the conflicting Court of Appeal opinions and
its ability to follow either view. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 456.) But the presumption a court knew the law “does
not apply where the law in question was unclear or uncertain when the lower
court acted.” (People v. Jeffers (1987) 43 Cal.3d 984, 1000.)
Second, the People contend that even if the trial court did not realize
the scope of its discretion, remand would be an idle act. We disagree. As we
have previously acknowledged, if a court has imposed sentence while
16
assuming it lacked a discretion later conferred, we must remand so it can
exercise its full discretion. (People v. McDaniels (2018) 22 Cal.App.5th 420,
425 (McDaniels). The only instance in which we can decline to remand is if
“ ‘ “the record shows that the trial court would not have exercised its
discretion even if it believed it could do so.” ’ ” (Ibid.) The standard is
whether the court “clearly indicated when it originally sentenced the
defendant that it would not in any event have stricken [the relevant]
enhancement.” (Ibid.)
In adopting that strict standard, we rejected a standard that would
require remand only if there is a “ ‘reasonable probability’ ” the trial court
will strike an enhancement. (McDaniels, supra, 22 Cal.App.5th at p. 426.)
We noted that factors considered under that standard—such as the egregious
or recidivist nature of a defendant’s crimes—may be relevant to whether a
court is likely to exercise discretion in a defendant’s favor but “cannot alone
establish what the court’s discretionary decision would have been” on an
issue it never decided. (Id. at p. 427.) Remand is thus required unless such
factors led the trial court “to express its intent to impose the maximum
sentence permitted” or in some other way to indicate clearly that it “will not
exercise its discretion in the defendant’s favor.” (Ibid.)
Our Supreme Court recently cited McDaniels with approval and
reaffirmed the rigor of the “ ‘clearly indicate[d]’ ” standard. (People v. Salazar
(2023) 15 Cal.5th 416, 425, 431–432, citing McDaniels, supra, 22 Cal.App.5th
at p. 426.) When the law has changed, our high court cautioned, “it is almost
always speculative for a reviewing court to say what the sentencing court
would have done if it had known the scope of its discretionary powers.”
(Salazar, at p. 431.)
17
Here, the People try to show a clear indication the trial court would not
in any circumstances have stricken the section 12022.53(d) enhancement, but
they fall short. They note the court listed many aggravating factors that
weighed against striking the enhancement. They also quote the court’s
comments that Jacobson “is a very, very dangerous, dangerous man” and
would be “extremely dangerous if he ever is on the street and able to get
guns,” and its conclusion this was not a case in which to strike the
section 12022.53(d) enhancement “or the punishment for it” because this case
is “one that requires it.”
But the trial court made the latter comment while possibly believing its
only alternative was to impose no punishment at all for firearm use. It did
not state that this case required the maximum firearm-based punishment of
25 years to life rather than one of 10 or 20 years. (§ 12022.53, subds. (b)–(d).)
At most, the court’s other negative comments arguably make it likely it will
reimpose the section12022.53(d) enhancement on remand; they do not
“clearly indicate” it will do so. (McDaniels, supra, 22 Cal.App.5th at p. 425.)
Nor did the trial court indicate it would never exercise discretion in
Jacobson’s favor. (McDaniels, supra, 22 Cal.App.5th at pp. 425–426.) To the
contrary, it in fact did exercise such discretion in a way strikingly parallel to
McDaniels. The sentence there was identical to Jacobson’s: consecutive
terms of 25 years to life for murder and for a section 12022.53(d)
enhancement, and a two-year concurrent term for possessing a firearm as a
felon. (McDaniels, at p. 423.) We noted the trial court had “expressed no
intent to impose the maximum sentence” but instead “imposed the midterm
for being a felon in possession of a firearm” and made that term concurrent.
(Id. at p. 428.) Here, the trial court made exactly the same choice, rejecting
the prosecution’s request that it impose a three-year consecutive term.
18
That decision reduced Jacobson’s total sentence from the potential
maximum of 53 years to life to 50 years to life. We cannot say this record
clearly indicates the trial court will inevitably decline, on remand, to exercise
its discretion to further reduce the total sentence to 45 years to life or
35 years to life by striking the section 12022.53(d) enhancement and
imposing one of 10 or 20 years under subdivisions (b) or (c) of
section 12022.53. (McDaniels, supra, 22 Cal.App.5th at pp. 425–426.)
Whether to do so is a choice the trial court must in the first instance make.
(People v. Salazar, supra, 15 Cal.5th at p. 432.)
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated, and
the matter is remanded for resentencing.
19
LANGHORNE WILSON, J.
WE CONCUR:
BANKE, ACTING P. J.
SIGGINS, J.*
A164149
People v. Jacobson
* Retired Presiding Justice of the Court of Appeal, First Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
20