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REMANDED: Middle Term Sentence Consideration Required

People v. Gaines Court: California Courts of Appeal, Docket: F083168 (Fifth Appellate District), Opinion Date: July 5, 2023. Defendants B.G. and D.R. were making a purchase at a convenience store where they exchanged words with a man who was accompanied by his girlfriend and her two young children. A short time after leaving the store, B.G. stopped his vehicle in the street near where the man, girlfriend, and children were walking on the sidewalk while D.R. exited the vehicle and shot at the individuals multiple times. Defendants were convicted of premeditated attempted murder and related charges and were sentenced to terms of seven years to life plus 10 years (as to B.G) and seven years to life plus 49 years and eight months (as to D.R). Defendants challenged their convictions for discharging a firearm from a vehicle and permitting someone to discharge a firearm from a vehicle because Ross was not in the vehicle when the shooting occurred. Defendants argued that recent amendments to the sentencing law require we remand their cases for resentencing. The Fifth Appellate District vacated the sentences and remanded for resentencing in accordance with section 1170, as amended by Senate Bill 567. The judgments are otherwise affirmed. The court explained that when a court is unaware of the scope of its discretionary powers, “the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]’ that the trial court would have reached the same conclusion even if it had been aware that it had such discretion. After reviewing the trial court’s comments and sentence in this case, the court was unable to conclude that the trial court would not exercise its discretion to impose different sentences.

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