Opinion
B293765
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES PHILLIP ANDERSON, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Theresa A. Patterson, Deputy Attorney General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. LA083261) APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas Rubinson, Judge. Affirmed and remanded for resentencing. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Theresa A. Patterson, Deputy Attorney General for Plaintiff and Respondent.
INTRODUCTION
James Anderson shot and killed James Miller after learning Miller was having an affair with Anderson's girlfriend. A jury convicted Anderson of second degree murder rather than first degree murder or voluntary manslaughter. Anderson argues that substantial evidence does not support his conviction for second degree murder and that the jury should have convicted him of voluntary manslaughter. Anderson also contends that the trial court abused its discretion in admitting a video taken by a witness to the crime and that the matter should be remanded for resentencing. We agree with Anderson's last contention, which the People do not oppose, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Miller Becomes Involved with Two Dominatrices
Michelle Newman was a professional dominatrix specializing in bondage, discipline, sadomasochism, and other fetishes that involved a "consensual give and take of power" but no sex. Her working name was "Red." Her friend Carolyn Pourhabib, whose working name was "Corrine," was also a dominatrix. Newman met Pourhabib through a friend Pourhabib "was also love-triangling with."
Pourhabib introduced Newman to Anderson, who worked in construction and as a "fetish photographer" taking pictures of dominatrices. Anderson was in a relationship with Pourhabib and was very protective of her. Anderson and Pourhabib also had a domination business that included a "dungeon" in Anderson's house with "implements, whips and whatnot hanging from the walls, chains from the ceiling," and other "fancy implements" they used. Unbeknownst to Anderson, Pourhabib was also in a relationship with Miller, a close friend of Newman's, known as "Tommy Guns." Miller used drugs and shared them with Newman and Pourhabib.
B. Anderson Finds Miller In Flagrante Delicto and Kills Him
One evening Newman and Pourhabib were at Miller's house. As Newman was getting ready to leave, Anderson came to the door. Anderson, who had several telephone calls with Pourhabib earlier in the day, asked Newman if Pourhabib was there. Newman lied and said she was not. Anderson "seemed calm and concerned." Anderson asked about Pourhabib, and Newman said she was fine. Anderson said, "Okay. I'm going to leave. I'm going home." Anderson walked down the driveway, and Newman closed the door.
Newman went to the back bedroom of the house and told Miller and Pourhabib what had happened and "gave them a quick briefing" of her conversation with Anderson. Newman went back out the front door when she saw Anderson jump out from behind Miller's truck and point a gun at her head. Anderson seemed agitated, "determined and aggressive." Newman screamed, "He's got a gun." When Anderson told her to "shut up," Newman again screamed, "He's got a gun." Anderson pushed Newman back into the house and ran toward the bedroom where Miller and Pourhabib were "fooling around" naked and "doing things."
Miller ran from the bedroom and out the front door in his underwear. Anderson ran out after Miller, and Newman heard two gunshots. Newman "poked" her head out the front door and saw a car drive away. Newman walked down the driveway and heard Miller scream, "Somebody help me."
Newman ran back into the house and found Pourhabib "naked, spinning around in circles." Newman said, "Look, you need to get out there. I think [Miller] has been shot." Pourhabib said, "I don't have any clothes." Newman got Pourhabib some clothes, and Pourhabib ran outside.
Newman went outside and found Miller at the end of the 129-foot driveway. Pourhabib was crouched down next to Miller, "covered in his blood."
Meanwhile, Jesus Villanueva was driving slowly down the street that evening. He heard three shots and saw three flashes of light 15 feet away. He saw "the person who was doing the shooting" and "the person who fell down." He saw, through the rearview mirror of his truck, Anderson put a gun into his waist, get into a pickup truck, and drive away in Villanueva's direction "at a high speed" with his truck's headlights off. Villanueva, who saw Anderson's face clearly as Anderson drove by, said he was "100 percent" certain Anderson was the shooter. After memorizing some of the numbers of the license plate on Anderson's truck, Villanueva turned around and went to help Miller. Villanueva also took a video recording at the scene, which the prosecutor played for the jury at trial.
One of the bullets entered Miller's back and tore his right pulmonary artery and damaged his spinal cord, causing paraplegia and bleeding into his chest. The treating physicians could not maintain his blood pressure, and Miller died seven days later from cardiac arrest.
Homicide detectives arrested Anderson two days later in Las Vegas. Police recovered from Anderson's truck and from a gun safe 11 weapons, including a rifle, a shotgun, a .40-caliber semiautomatic pistol, two revolvers, and "a lot of ammunition."
C. The Jury Convicts Anderson of Second Degree Murder
The People charged Anderson with first degree premeditated murder, assault with a firearm, and first degree burglary. The People alleged in connection with the murder charge Anderson personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b), personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c), and personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivision (d).
Undesignated statutory references are to the Penal Code.
The jury found Anderson not guilty of first degree murder, but guilty of second degree murder, assault with a firearm, and first degree burglary. The jury also found true all three firearm allegations.
On the murder conviction, the trial court sentenced Anderson to a prison term of 15 years to life, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), while the court imposed and stayed execution of the 10-year and 20-year enhancements under section 12022.53, subdivisions (b) and (c). On the assault with a firearm conviction (which involved a different victim, Newman), the court imposed a consecutive middle term of three years. Finally, on the burglary conviction, the court imposed and stayed execution under section 654 of the middle term of four years. Anderson timely appealed.
DISCUSSION
A. Substantial Evidence Supported Anderson's Conviction for Second Degree Murder
1. Governing Law and Standard of Review
"Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements—i.e., willfulness, premeditation, and deliberation—that would support a conviction of first degree murder." (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102, italics omitted.) "'Malice may be either express or implied. It is express when the defendant manifests "a deliberate intention unlawfully to take away the life of a fellow creature." [Citation.] It is implied . . . "when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life" [citation].' [Citation.] In other words, express malice requires an intent to kill. Implied malice does not." (People v. Delgado (2017) 2 Cal.5th 544, 571.)
"Voluntary '[m]anslaughter, a lesser included offense of murder, is an unlawful killing without malice. . . . Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense.'" (People v. Soto (2018) 4 Cal.5th 968, 974; see § 192; People v. Dungo (2012) 55 Cal.4th 608, 615, fn. 4 ["When an unlawful killing occurs 'upon a sudden quarrel or heat of passion' [citation] the killer lacks malice, and the crime is voluntary manslaughter, a lesser offense necessarily included within the crime of murder."]; People v. Moye (2009) 47 Cal.4th 537, 549 ["'"a defendant who intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' [citation] or when the defendant kills in 'unreasonable self-defense'"'"].)
"Heat of passion arises if, '"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."' [Citation.] Heat of passion, then, is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation. While some measure of thought is required to form either an intent to kill or a conscious disregard for human life, a person who acts without reflection in response to adequate provocation does not act with malice." (People v. Beltran (2013) 56 Cal.4th 935, 942.) "'To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection. . . . [T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene.' [Citation.] '[P]rovocation is sufficient not because it affects the quality of one's thought processes but because it eclipses reflection.'" (People v. Beck and Cruz (2019) 8 Cal.5th 548, 650.) In addition, the defendant must "actually be motivated by passion in committing the killing. '[I]f sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . .'" (Beltran, at p. 951; see People v. Daniels (1991) 52 Cal.3d 815, 868 [for a killing to be manslaughter, it must be "'suddenly as a response to the provocation, and not belatedly as revenge or punishment'"].)
"'"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Beck and Cruz, supra, 8 Cal.5th at p. 626.) "'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.'" (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
2. There Was Substantial Evidence Anderson Killed Miller with Malice
There was substantial evidence that Anderson, who shot Miller three times, intended to kill him, or at least that Anderson acted intentionally, knowing his conduct endangered Miller's life and with conscious disregard for Miller's life. Although the jury acquitted Anderson of first degree murder, there was evidence Anderson planned and strategized how he would shoot Miller. After calling Pourhabib earlier in the day, Anderson went to Miller's residence armed with a gun. (See People v. Lee (2011) 51 Cal.4th 620, 636 [evidence the "defendant brought a loaded handgun with him on the night [the victim] was killed, indicating he had considered the possibility of a violent encounter," showed the killing was premeditated]; People v. Wells (1988) 199 Cal.App.3d 535, 540-541 [possession of a handgun "is consistent with [an] intent to kill . . . even if it does not provide solid evidence of prior planning to kill [a] particular victim"].) When he saw Newman at the front door of Miller's residence, Anderson created a ruse by pretending to leave, hid behind Miller's truck in the driveway until Newman left the house, and when Newman emerged Anderson assaulted her with his gun and forced her back into the house.
When Miller ran out of the house, Anderson pursued him and shot him three times from behind. (See People v. Smith (2005) 37 Cal.4th 733, 742 ["the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice" and intended to kill]; People v. Jackson (1989) 49 Cal.3d 1170, 1201 ["the very act of firing a shotgun toward the [victim] would permit an inference of intent to kill"]; People v. Medina (2019) 33 Cal.App.5th 146, 153 ["[f]iring a gun at [the victims] from . . . close range was substantial evidence from which the jury could find a specific intent to kill"]; see also People v. Covarrubias (2016) 1 Cal.5th 838, 892 ["'act of shooting a firearm toward a victim at close range in a manner that could have inflicted a mortal wound had the shot been on target is sufficient to support an inference of an intent to kill'"]; People v. Lashley (1991) 1 Cal.App.4th 938, 945 ["[t]he very act of firing a .22-caliber rifle toward the victim at a range and in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill"].) Pursuing Miller while he was running away and attempting to escape was further evidence Anderson intended to kill him. (See People v. Bolin (1998) 18 Cal.4th 297, 319 ["firing at a fleeing victim reasonably reflects an intention to kill"]; People v. Pettie (2017) 16 Cal.App.5th 23, 53 ["jury could reasonably infer from" evidence the defendant "fired multiple shots after [the victim] fled" that the defendant "harbored an intent to kill"].)
It was a reasonable inference from this evidence that, rather than becoming overwhelmed with passion at the sudden discovery of his girlfriend with Miller in the bedroom, Anderson arrived at Miller's house, armed with a firearm, intending to kill Miller, and that the execution of this plan resulted in Miller's death. (See People v. Brooks (2017) 3 Cal.5th 1, 57 ["'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.'"].) Substantial evidence supported Anderson's conviction for second degree murder.
Anderson argues "there was sufficient evidence of provocation which negated malice." Perhaps there was. Anderson asserts "the facts support [his] claim he acted in a heat of passion." Perhaps they did. And as Anderson points out, and the trial court recognized in giving (over the People's objection) jury instructions on provocation and voluntary manslaughter, the facts of the case were consistent with the classic law school example of provocation to support heat of passion voluntary manslaughter. (See People v. Logan (1917) 175 Cal. 45, 49 ["the sight of a wife in adultery, or even a reasonable belief that his wife was committing an act of adultery, although the belief may be unfounded, has been held sufficient evidence to go to the jury as creating 'the heat of passion' in the mind of the defendant"]; People v. Thompkins (1987) 195 Cal.App.3d 244, 249 ["At least as early as Manning's Case (1793) 83 Eng.Rep. 112, an archtypical illustration of adequate provocation sufficient to invoke the common law heat-of-passion theory for voluntary manslaughter has been the defendant's discovery of his wife in bed with another man."]; Witmer-Rich, The Heat of Passion and Blameworthy Reasons to Be Angry (2018) 55 Am. Crim. L.Rev. 409, 450 ["In the traditional legal imagination, a paradigmatic heat of passion case involves sexual infidelity: a man discovering his wife in the act of having sex with another man and killing either the wife or the other man (or both)."]; see, e.g., People v. Berry (1976) 18 Cal.3d 509, 515 [trial court erred in refusing to instruct on voluntary manslaughter where the "[d]efendant's testimony chronicle[d] a two-week period of provocatory conduct by his wife . . . that could arouse a passion of jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause him to act rashly from this passion"].)
The doctrine has its critics. "Contemporary scholars naturally have questioned the continued viability of the paradigm of infidelity killings in a society that no longer embraces the view that women are property. Although this is the more troubling of the two paradigms, the real trouble with it lies deeper than its sexist tradition. The infidelity paradigm rests on a fundamentally flawed and inadequately examined premise: the provocation defense nonchalantly asserts, and the dominant scholarship regarding the defense accepts, that to a certain extent we simply cannot expect people to control themselves when faced with the sight of a faithless spouse. This is not true. We should, and in fact do, have more control over our passions than the defense and the prevailing scholarship assume." (Rozelle, Controlling Passion: Adultery and the Provocation Defense (2005) 37 Rutgers L.J. 197, 199, fn. omitted.)
But that does not mean substantial evidence did not support Anderson's conviction for second degree murder. The jury undoubtedly could have convicted Anderson of voluntary manslaughter rather than second degree murder. The jury, however, did not have to accept Anderson's characterization of the evidence and view of the case. "'Generally, it is a question of fact for the jury whether the circumstances were sufficient to arouse the passions of the ordinarily reasonable person.'" (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1140; accord, People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705; see People v. Beltran, supra, 56 Cal.4th at pp. 950-951 ["'it is not a matter of law but a matter of fact for the jury in each case to determine under the circumstances of the case whether the assault or whether the blow, or whether the indignity or whether the affront, or whatever the act may be, was such as is naturally calculated to arouse the passion, and so lessen the degree of the offense by relieving it from the element of malice'"].) While the evidence might have supported a heat-of-passion theory, it also supported a malice killing. And the jury found Anderson guilty of second degree murder rather than voluntary manslaughter under instructions Anderson does not challenge and based on evidence that was substantial. (See Beltran, at p. 950 ["'as to the nature of the passion itself, our law leaves that to the jury, under . . . proper admonitions from the court'"].) A reviewing court may not second guess the jury's decision on this point. (See People v. Rivera (2019) 7 Cal.5th 306, 331 ["'If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.'"]; People v. Brown (2014) 59 Cal.4th 86, 106 ["'We do not reweigh evidence or reevaluate a witness's credibility.'"].)
B. The Trial Court Did Not Abuse Its Discretion in Admitting the Crime Scene Video
Anderson argues the trial court abused its discretion under Evidence Code section 352 and violated his due process rights by admitting into evidence the video recording Villanueva made of the crime scene immediately after the shooting. Anderson argues the video "was clearly cumulative to other evidence admitted to prove the commission of the offense," such as the testimony of Newman and Villanueva, and was "not necessary to prove any element of the offense." Anderson also argues the video, which "contained a gruesome image of Mr. Miller while still alive and the hysterical crying of Ms. Pourhabib," was "highly emotional and visually chilling" and "grim and harrowing."
Villanueva's video was not pleasant. But courts are "'"often asked to rule on the propriety of the admission of allegedly gruesome photographs. [Citations.] At base, the applicable rule is simply one of relevance, and the trial court has broad discretion in determining such relevance. [Citation.] '"[M]urder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant"' [citation]. . . . [W]e rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative [under Evidence Code section 352]. A trial court's decision to admit photographs . . . will be upheld on appeal unless the prejudicial effect . . . clearly outweighs their probative value. [Citation.] Finally, prosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case."'" (People v. Powell (2018) 6 Cal.5th 136, 163-164.) Reviewing courts "afford trial courts wide discretion in assessing whether in a given case a particular piece of evidence is relevant and whether it is more prejudicial than probative." (People v. Duff (2014) 58 Cal.4th 527, 558.)
Even though the jury heard testimony describing the shooting and Miller's injuries, the People were entitled to show the jury photographic and video evidence to prove how Anderson shot Miller. This is true "'even in the absence of a defense challenge to particular aspects of the prosecution's case'" or where, as here, the defendant argues "'photographs of a murder victim should be excluded as cumulative to other evidence in the case.'" (People v. D'Arcy (2010) 48 Cal.4th 257, 299; see People v. Merriman (2014) 60 Cal.4th 1, 80 ["the court is not required to exclude photographic or other documentary evidence simply because the images they depict could have been described by a witness," and "[s]o long as the probative value of graphic or disturbing material is not substantially outweighed by its prejudicial effects, a prosecutor is entitled to use such evidence to 'present a persuasive and forceful case'"]; People v. Sattiewhite (2014) 59 Cal.4th 446, 471 [defendant's concession he "shot the victim did not make the photographs irrelevant or merely cumulative"]; People v. Watson (2008) 43 Cal.4th 652, 684 [crime scene "photographs were not made inadmissible by the prosecutor's ability to prove motive, intent, and cause of death through other evidence"].) The videotape of Miller after Anderson shot him was qualitatively different from the verbal descriptions of the incident by Newman and Villanueva. (See People v. Duff, supra, 58 Cal.4th at p. 557 [photographs and videotapes of the victims after the shooting "necessarily provided crucial corroboration as to their positions and injuries and would have made it much easier to visualize which version of events fit," and because "a picture could be worth a thousand words; the images were not simply cumulative of other testimony"].) The videotape, which showed Anderson shot Miller in the back, was particularly probative on the primary issue at trial: whether Anderson intended to kill Miller. (See Sattiewhite, at p. 471 ["crime scene photographs were relevant to establish the killer's mental state, an issue that defense counsel did not concede"]; People v. Booker (2011) 51 Cal.4th 141, 170-171 [trial court did not abuse its discretion in admitting "particularly gruesome photographs" where they "tended to prove an intent to kill"].) The video, which included statements by Newman identifying Anderson, also confirmed Anderson as the killer.
The video shows blood from the wound on Miller's back, and Miller can be heard asking for water. But the risk of undue prejudice did not substantially outweigh the very strong probative value of the video. (See People v. Sanghera (2016) 6 Cal.App.5th 365, 373 ["under [Evidence Code] section 352, the prejudicial effect or other counterweights must 'substantially outweigh[ ]' the probative value"].) Miller is face down in the video; his face is not visible. The scene is dark, and it is often hard to make out what is occurring. "Although unpleasant," the video depicts "the nature of the crime without unnecessarily playing upon the jurors' emotions." (People v. Watson, supra, 43 Cal.4th at p. 684.) The trial court did not abuse its discretion in admitting the video. (See People v. Winbush (2017) 2 Cal.5th 402, 459 [trial court did not abuse its discretion under Evidence Code section 352 in admitting photographs of the murder victim where the photographs showed the victim's body "on its side, facing away from the camera . . . lying on a blood-soaked shirt" and "focus[ed] on the wounds to the back of her head and neck" and where the jury "would hear testimony detailing all facts relating to the crime scene and victim"].)
Anderson also argues "the erroneous admission of evidence in violation of Evidence Code section 352 can violate a defendant's federal due process right." Because the trial court did not abuse its discretion under Evidence Code section 352, the admission of the video did not violate Anderson's due process rights or make Anderson's trial fundamentally unfair. (See People v. Caro (2019) 7 Cal.5th 463, 507-508; People v. Riccardi (2012) 54 Cal.4th 758, 809, disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
C. Remand Is Necessary To Allow the Trial Court To Exercise Its Discretion Whether To Strike the Firearm Enhancements and To Give Anderson the Opportunity To Request a Hearing on His Ability To Pay the Fines and Assessments
When the trial court sentenced Anderson in October 2018, section 12022.53, subdivision (h), provided: "The 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." The Legislature had amended section 12022.53 to include this language effective January 1, 2018. (See People v. Ellis (2019) 43 Cal.App.5th 925, 934 ["the Governor signed Senate Bill No. 620, which amended sections 12022.5 and 12022.53 effective January 1, 2018, to permit a trial court, in the furtherance of justice, to strike or dismiss a firearm enhancement otherwise required to be imposed under the statute"]; People v. Easter (2019) 34 Cal.App.5th 226, 230 [Senate Bill No. 620, which became "effective January 1, 2018, affords trial courts discretion to strike or dismiss a Penal Code section 12022.53 firearm enhancement"].) At the sentencing hearing, however, the trial court stated the true finding on the allegation under section 12022.53, subdivision (d), required the court to impose a "mandatory sentence of 25 years" to life.
Anderson argues, the People concede, and we agree the court erred. Under the law at the time of sentencing, imposition of the firearm enhancement under section 12022.53 was discretionary, not mandatory. As the People concede: "Despite the change in the law, the trial court stated that the firearm enhancement was 'mandatory.' Thus, a remand is warranted because it appears that the trial court misunderstood the scope of its discretion." (See People v. Lee (2017) 16 Cal.App.5th 861, 875 [where the trial court misunderstands the scope of its discretion, remand is appropriate to give the trial court an opportunity to exercise its discretion]; People v. Jones (2007) 157 Cal.App.4th 1373, 1383 [where the trial court is "mistaken as to the scope of its discretionary powers, a remand for resentencing is appropriate"].)
Citing this court's decision in People v. Dueñas (2019) 30 Cal.App.5th 1157, Anderson also argues: "Because the sentencing court imposed [certain] fines and restitution fine without considering [Anderson's] ability to pay, this court should vacate the assessments and restitution fines subject to a showing that he has the ability to pay." The People concede a remand is appropriate on this issue as well: "[B]ecause this case must be remanded for resentencing to allow the trial court to consider whether to strike the firearm enhancement in light of Senate Bill [No.] 620," "this Court should also 'remand the matter to the trial court so that [Anderson] may request a hearing and present evidence demonstrating his inability to pay the fines, fees and assessments imposed by the trial court.'" The People's suggestion is a sound one. (See People v. Castellano (2019) 33 Cal.App.5th 485, 490.)
DISPOSITION
The judgment is affirmed. The matter is remanded for resentencing to allow the trial court to exercise its discretion whether to strike the firearm enhancement and to allow Anderson to request a hearing to determine his ability to pay the assessments and fines imposed by the trial court.
SEGAL, J. We concur:
ZELON, Acting P. J.
FEUER, J.