Opinion
B290686
04-06-2020
THE PEOPLE, Plaintiff and Respondent, v. TERRY DONELL GALLOWAY, Defendant and Appellant.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA445445) APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Modified and, as so modified, affirmed; remanded for further proceedings. Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Terry Donell Galloway was convicted by a jury of two counts of assault with a firearm and being a felon in possession of a firearm. He contends that his convictions must be reversed because a six-pack photo identification procedure was impermissibly suggestive, and the trial court erred by admitting evidence of a rifle found in a crawl space underneath Galloway's aunt's residence. In supplemental briefing, he contends that due to a recent amendment to Penal Code section 667.5, two one-year prior prison term enhancements must be stricken. We agree with Galloway's last contention and order the enhancements stricken and the matter remanded for resentencing. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. People's evidence
Viewed in accordance with the usual rules governing appellate review (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence adduced at trial was as follows.
(i) The March 9, 2016 hit-and-run accident
At approximately 9:00 a.m. on March 9, 2016, Rosa Benavidez was driving her new 2016 Honda Civic in Los Angeles. Her husband, Andres Benavidez, was seated in the front passenger seat. When they were near Main and 70th Streets, a green Mazda MPV minivan, driven by Galloway, hit the Honda's right passenger side, scraping the Honda.
For ease of reference, and with no disrespect, we hereinafter refer to Mr. and Mrs. Benavidez by their first names.
The Mazda did not stop. Rosa followed, pulled alongside the driver's side of the Mazda, and told Galloway to stop. Andres rolled down his window and yelled, "Hey, you hit us." Galloway said, "F this," pulled out a gun, and pointed it at Rosa. Both Rosa and Andres called 911. The Mazda bore a Disabled Person license plate, and Andres informed the 911 operator of a portion of the plate number. Both Rosa and Andres observed Galloway's face.
The 911 operator advised that Rosa should wait at a safe location for an officer to arrive, and she drove to a nearby market. While Rosa and Andres were waiting, a 2001 Lexus ES 300 pulled up, with Galloway and two other men inside. The three men got out and surrounded the Honda. Rosa immediately recognized Galloway from the earlier incident, and he stood in front of the Honda. He and one of the other men pulled out guns. Galloway pointed his gun at Rosa and said, "Fuck Flowers, it was your fault, fuck you." Rosa and Andres drove away.
Rosa dropped Andres off at her mother's house and went to the nearby police station, where she explained to an officer what had happened. She described the assailant as a Black male, approximately five feet four inches tall, between 25 and 28 years old, with a shaved head and tattoos on both arms.
(ii) Discovery of the Mazda and the investigation
On March 13, 2016, at approximately 9:00 p.m., Los Angeles Police Department (L.A.P.D.) officers responded to a traffic accident at 65th and Main Streets in Los Angeles, involving the Mazda minivan and another vehicle. No one was inside the Mazda when the officers arrived, but they were informed that three Black males had exited the Mazda and fled. One was armed with an assault rifle and another was armed with a handgun. In the Mazda, an officer discovered a Patron tequila box, spent bullet casings, and ammunition. Two of the fingerprints on the Patron box matched Galloway's fingerprints.
On March 17, 2016, Rosa identified a photograph of the Mazda that had been involved in the March 13, 2016 accident as the one that had hit her on March 9, 2016. She identified a photograph of Galloway as the driver. An audio tape of a portion of the identification procedure was played for the jury. Rosa also identified Galloway at the preliminary hearing, and at trial. She testified that she was very confident that her identification was correct. Andres identified Galloway at trial as well.
Andres did not testify at the preliminary hearing.
On March 31, 2016, L.A.P.D. officers searched the front dwelling of a duplex or "two unit" residence located at 233 West 65th Street. Galloway was present when officers arrived. In a padlocked crawl space underneath the house, an officer found an SK rifle, a shotgun, a magazine, a revolver cylinder, and ammunition. Forensic testing revealed that the cartridge cases recovered from inside the Mazda minivan had been fired from the SK rifle found under the house.
(iii) Gang evidence
Officer Luis Anchondo and Detective Gerald Harden testified as the People's gang experts. In Anchondo's opinion, Galloway was a member of the 76 East Coast Crips criminal street gang. He had numerous East Coast Crips tattoos, including a "76ers" tattoo on his face, had self-admitted his membership to Anchondo in March 2015, and was depicted in photographs wearing gang attire and "throwing" gang signs. Anchondo and Harden variously testified about, inter alia, the East Coast Crips gang's hierarchy, subsets, territory, primary activities, symbols, tattoos, culture, rivals, and predicate crimes, as well as the importance of respect, reputation, and fear in gang culture. "Flowers" is a derogatory name for Florencia 13, a predominantly Hispanic gang that is a rival of the East Coast Crips. The area where the assaults occurred was within the East Coast Crips gang's claimed territory. When given a hypothetical based on the evidence adduced at trial, Anchondo opined that the assaults would have benefitted the East Coast Crips gang.
Because Galloway does not challenge either Officer Anchondo's or Detective Harden's expert qualifications, or the sufficiency of the evidence to support the gang enhancement, we do not fully detail that evidence here.
Another officer also testified that Galloway admitted to him, in December 2015, that he was a 76 East Coast Crips gang member.
(iv) Prior conviction
Galloway stipulated that he had suffered a prior felony conviction.
b. Defense evidence
Galloway's aunt, Tonya Lewis, lived in the residence at 233 West 65th Street. She testified to the following. Galloway never lived there with her, although he would occasionally visit. Galloway did not have a Mazda and did not drive a car. He had been an East Coast Crips gang member but left the gang in 2013. On March 31, 2016, when police searched her residence, Galloway and several other guests were staying overnight at Lewis's home to celebrate Lewis's birthday. Lewis had never seen the gun found under the house before.
Galloway's estranged wife, Megan Galloway, testified that Galloway had ceased active gang membership prior to 2012; in 2016, she and Galloway lived in Inglewood; she and Galloway were at Lewis's house on March 31, 2016, to celebrate Lewis's birthday; and Galloway did not own a minivan and did not drive.
DNA swabs taken from the Mazda and various items inside it were tested, and DNA from multiple contributors was present. However, due to the quality or quantity of the samples, usable results were obtained on only two of the swabbed areas, and the identity of the contributor in those samples was unknown.
Alex Alonso, a professor at California State University Long Beach, testified for the defense as a gang expert. Among other things, he opined that a gang member can leave a gang without getting his tattoos removed. "Flowers" might be used as a derogatory term for a person of Latin descent, rather than for the Florencia 13 gang. When given a hypothetical based on the evidence adduced at trial, Alonso opined that he would need more information before determining whether the offenses were committed for the gang's benefit.
Expert Mitchell Eisen testified regarding factors affecting the accuracy of eyewitness identifications. He opined, inter alia, that memory is changeable, and people may fill in memory gaps using inferences, or revise their recollections in the face of new information. If an identification procedure is not suggestive, a quick and confident identification tends to indicate accuracy. It is possible for an identification to be accurate even if a procedure is suggestive. Trauma, or the presence of a gun, may cause a witness to be unable to recall details. Cross-racial identifications are more prone to be erroneous. When a witness makes an identification, he or she tends to stick with it whether or not it is accurate.
2. Procedure
A jury convicted Galloway of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). It found that one of the assault offenses (count 2), was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)). Galloway admitted serving four prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced him to a term of 11 years 8 months in prison, configured as follows. On count 2, assault with a firearm, it imposed the midterm of three years, plus five years for the gang enhancement. On count 1, assault with a firearm, and count 3, possession of a firearm by a felon, it imposed one-third of the midterm, one year, and eight months, respectively. It also imposed two section 667.5, subdivision (b) prior prison term enhancements, based on Galloway's prior convictions for receiving stolen property (§ 496) and possession of an assault weapon (former § 12280, subd. (b).) The court struck the remaining two section 667.5, subdivision (b) priors. It imposed a restitution fine, a suspended parole revocation restitution fine, a criminal conviction assessment, and a court operations assessment.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The photo identification procedure
Galloway argues that a pretrial photographic identification procedure was "rigged by police," rendering Rosa's identification of him unreliable and violating his due process rights. We disagree.
a. Additional facts
On March 17, 2016, an L.A.P.D. detective interviewed Rosa. After he obtained Rosa's account of the incidents, she identified Galloway in a six-pack photographic lineup. Prior to showing her the photographs, the detective read Rosa a standard advisement indicating that the six-pack might or might not contain a picture of the culprit; hairstyles, beards and mustaches may easily be changed; photographs may not always depict a person's true complexion, which may be lighter or darker than in the photograph; and she was to ignore any differences in the type or style of the photos. The admonishment instructed that after viewing the photos, she was to tell the detective "whether or not you see the person who committed the crime." Rosa affirmed that she understood. The detective reiterated that because styles can change, Rosa should focus on the facial features "and see if you recognize anybody from that day." The following colloquy then transpired:
"[Detective]: . . . Anyone look similar?
"[Rosa]: He kinda does, but I don't know.
"[Detective]: Okay. That's fine. Okay. Go ahead and circle him. Just initial and [indicate the date and time].
[¶] . . . [¶]
"[Detective]: What about him is similar?
"[Rosa]: The way his eyes look.
"[Detective]: The way his eyes?
"[Rosa]: Yeah. And then the skin color.
"[Detective]: Skin color?
"[Rosa]: Yeah.
"[Detective]: Anything else about him that stands out to you?
"[Rosa]: Yeah, the eyes, the way he's looking, the skin color, the nose.
"[Detective]: The nose?
"[Rosa]: Yeah, and the hair looks like it was braided, but it was similar to this, but like short, like this.
"[Detective]: Okay.
"[Rosa]: Yeah.
"[Detective]: So, in this picture what number is that?
"[Rosa]: Four.
"[Detective]: Four, okay. So you're saying his nose, his eyes, basically his facial features resemble?
"[Rosa]: Yeah. The mustache, I don't know about the mustache because [unintelligible].
"[Detective]: That's fine. I mean, like I said, like the hairstyles and beards, try not to pay attention too much to, just, those change like I read to you.
"[Rosa]: Yeah.
"[Detective]: Okay. Just write how he looks, basically in your words why you chose number four. Pretty much what you just told me, kinda write it down.
"[Rosa]: Okay.
"[Detective]: And this is, I'm sorry, this is the guy that was?
"[Rosa]: Suspect one.
"[Detective]: Driving the green van?
"[Rosa]: Yes.
"[Detective]: He's the guy that returns later in the gold Lexus?
"[Rosa]: Yes.
"[Detective]: Okay. Yeah, in your words, I chose picture number four because of the following, you know.
"[Rosa]: Okay.
"[Detective]: I can't tell you what to write, but you pretty much already said why you chose him already."
Rosa then completed an identification report. As she did so, the following transpired:
"[Rosa]: Okay. 'I chose number four.'
"[Detective] [reading Rosa's writing]: 'Due to his skin color, nose and eyes.' Just write little bit more, and just kinda write what he was doing. You said he was suspect number one, write he's the guy that did what?
"[Rosa]: The hit and run.
"[Detective]: Like he's the guy that, you said he was what?
"[Rosa]: Driving the Mazda.
"[Detective]: Driving. I can't tell you what to write, but I know this is your first time.
"[Rosa]: Yeah.
"[Detective]: I'm trying to explain.
"[Rosa]: Okay.
"[Detective]: Let me see [reading]: 'I chose number four due to the skin color, nose and eyes. He was the guy driving the Mazda minivan that hit my car on March 9th, 2016.' Perfect. [¶] Did he do anything else?
"[Rosa]: He pulled out a gun.
"[Detective]: Okay. Let me see what you got. 'I chose number four due to the skin color, nose and eyes. He was the guy that was driving the Mazda minivan that hit my car on March 9th, 2016. He also pulled out a gun. Then after a few minutes, he returned with two more persons [i]n a different car as well, he again pulled a gun.' Perfect. [¶] Pretty much just sign after that. Pretty much make sure no one else does it. Circle the same one you circled here, number four. And then just initial right above it."
At trial, Rosa explained that after initially stating the photograph "kind of" looked like the culprit, she focused on the facial features and recognized Galloway. She was sure her identification of Galloway was correct.
b. Forfeiture
Preliminarily, we agree with the People that Galloway has forfeited this contention. The record does not reflect that Galloway objected to or sought to exclude Rosa's identification of him as her assailant in the photographic lineup or at trial. Therefore, his argument has been forfeited. (People v. Elliott (2012) 53 Cal.4th 535, 585-586; People v. Virgil (2011) 51 Cal.4th 1210, 1250-1251; People v. Medina (1995) 11 Cal.4th 694, 783.) Because Galloway argues that his counsel erred by failing to exclude Rosas's identification of him, we address his contention through the lens of an ineffective assistance of counsel claim.
c. Applicable legal principles
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.]' " (People v. Bell (2019) 7 Cal.5th 70, 125.) " ' "If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' [Citations.]" (Id. at pp. 125-126.)
" 'In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.]' [Citation.] If the answer to the first question is 'no,' because we find that the challenged procedure was not unduly suggestive, our inquiry into the due process claim ends. [Citation.]" (People v. Virgil, supra, 51 Cal.4th at p. 1256; People v. Sanchez (2019) 7 Cal.5th 14, 35; People v. Clark (2016) 63 Cal.4th 522, 556; People v. Chavez (2018) 22 Cal.App.5th 663, 674-675.) The defendant has the burden of demonstrating that an identification procedure was unduly suggestive or unreliable. (People v. Avila (2009) 46 Cal.4th 680, 700; People v. Chavez, at p. 675.) " 'A due process violation occurs only if the identification procedure is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." ' [Citations.]" (People v. Sanchez, at p. 35; see People v. Garcia (2016) 244 Cal.App.4th 1349, 1359.) "A claim that an identification procedure was unduly suggestive raises a mixed question of law and fact to which we apply a standard of independent review, although we review the determination of historical facts regarding the procedure under a deferential standard." (People v. Clark, at pp. 556-557.)
d. Galloway has failed to demonstrate that the identification procedure was unduly suggestive
Galloway does not contend the composition of the six-pack was itself suggestive. Instead, he avers that the identification procedure was suggestive because the detective "improperly influenced Rosa to pick out" photograph no. four. It appears this contention is based on the fact that the detective told Rosa to circle photograph no. four even though she initially stated she was unsure whether it depicted the culprit.
Galloway's arguments distort the record. The detective did not say or do anything indicating Rosa should select photograph no. four. Without prompting, Rosa selected it on her own, after being given an advisement cautioning her that the perpetrator might, or might not, be included in the six-pack. The detective "did not say that the man was in the lineup and did not suggest which, if any, of the six photographs" she should select. (People v. Sanchez, supra, 7 Cal.5th at p. 38.)
That Rosa was initially uncertain did not mean the detective had to act as if she was unable to identify anyone. Witnesses frequently make tentative identifications or indicate a suspect only resembles a perpetrator. (See, e.g., People v. Virgil, supra, 51 Cal.4th at p. 1255 [witness "chose defendant's photograph," writing on the identification form that it " ' "look[ed] like the person [she] saw the day of the incident more so than anyone else in the six-pack file" ' "]; see also People v. Thomas (2012) 54 Cal.4th 908, 931-932.) In response to Rosa's tentative identification, the detective did not state or imply that she had chosen correctly, or assume her identification was definitive. Instead, he properly questioned her regarding why she thought he looked "similar." There was nothing improper about such questions, nor was there any suggestiveness in his statement that she should keep in mind hairstyles and facial hair were easily changeable. (See People v. Avila, supra, 46 Cal.4th at p. 699 [advisement that person's appearance at the time of the crime might be different from the photograph was not suggestive].) It is clear the detective's statement, "That's fine," was an affirmation that it was "fine" if Rosa was unsure. And, viewed in context, his use of the word "perfect" was not a suggestion she had chosen the right suspect, but an indication she had filled out the form with the relevant information, after she had selected the photograph and explained why she did so. In short, our review of the record reveals no suggestiveness. (See People v. Sanchez, supra, 7 Cal.5th at p. 38.)
Galloway asserts that the detective "acted as if he was the witness and offered reasons why Rosa chose Number 4." It is readily apparent that in the cited portion of the record, the detective is simply reading what Rosa had already written on the identification report, not telling her what to write.
Since the identification procedure was not impermissibly suggestive, defense counsel cannot be faulted for failing to seek to exclude Rosa's identifications of Galloway. For a witness identification procedure to violate due process, " 'the state must, at the threshold, improperly suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.' " (People v. Virgil, supra, 51 Cal.4th at pp. 1210, 1250-1251.) "Failure to raise a meritless objection is not ineffective assistance of counsel." (People v. Bradley (2012) 208 Cal.App.4th 64, 90; People v. Kendrick (2014) 226 Cal.App.4th 769, 780.)
Because the identification procedure was not suggestive, we need not consider the question of reliability. (People v. Alexander (2010) 49 Cal.4th 846, 902; People v. Virgil, supra, 51 Cal.4th at p. 1256.)
2. The trial court did not err by admitting evidence of the rifle found in the crawl space
a. Additional facts
Prior to trial, defense counsel sought to exclude evidence of the assault rifle found in the crawl space underneath Galloway's aunt's residence. The People explained that on March 13, 2016, Galloway and two other men were suspected of committing a drive-by shooting of a bicyclist. They were in the same Mazda minivan Galloway was driving when he hit Rosa's car. As Galloway and his compatriots fled from the drive-by shooting scene, they were involved in a collision. Shortly thereafter, an eyewitness, M.G., observed Galloway walking down the street with an assault rifle. Officers searched Lewis's residence and discovered the assault rifle, and the witness identified it as the one she saw. Casings found in the Mazda minivan on March 13 were determined to have been fired from that weapon. Galloway had not yet been charged in regard to the March 13 incident.
The prosecutor agreed evidence of the drive-by shooting should be excluded. However, he sought to introduce evidence about the rifle's discovery and the casings to "link[] the defendant to the car which is the same car that was used in our incident." Defense counsel objected that the evidence was unduly prejudicial and had only marginal probative value because it related to a different incident, for which Galloway had not yet been charged. The trial court opined that the evidence tended to connect Galloway with the Mazda. "There is circumstantial evidence linking him to the van and therefore supporting the charge for March 9th[.]"
During trial, the prosecutor stated that M.G. was a reluctant witness, but was present and prepared to testify that day. The parties and the trial court discussed permissible bases for impeachment and rehabilitation of M.G., some of which would have revealed information about the drive-by shooting. The trial court deferred ruling until it had the opportunity to read various materials, including transcripts of audiotaped questioning of M.G. The prosecutor stated he hoped to call M.G. as a witness that day, "due to the issues of getting her into court." Ultimately, for reasons not revealed in the record, M.G. did not testify.
b. Discussion
Galloway argues that the trial court committed reversible error by admitting evidence that cartridge cases recovered from inside the Mazda were fired from the assault rifle found under Lewis's house. He argues that (1) the evidence was irrelevant and speculative because there was no connection between him and the rifle; (2) M.G. did not testify at trial, and therefore the court's ruling was based on "a fact that was not supported by the record"; and (3) because the firearm Rosa described was not an assault rifle, evidence of other weapons was prejudicial within the meaning of Evidence Code section 352. We disagree.
"Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) Relevant evidence includes all evidence having any tendency in reason to prove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210; People v. Tully (2012) 54 Cal.4th 952, 1010; People v. Bivert (2011) 52 Cal.4th 96, 116-117.) " 'The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' " (People v. Bivert, at pp. 116-117.) Evidence is substantially more prejudicial than probative under Evidence Code section 352 if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Beck and Cruz (2019) 8 Cal.5th 548, 656.) A trial court " 'enjoys broad discretion in determining the relevance of evidence and in assessing whether concerns of undue prejudice . . . substantially outweigh the probative value of particular evidence.' " (People v. Sanchez, supra, 7 Cal.5th at p. 54.) An appellate court applies the abuse of discretion standard to a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code section 352. (People v. Thompson (2016) 1 Cal.5th 1043, 1114.)
We detect no abuse of discretion here. Identity was a key issue in the case. The rifle was found in the crawl space of a house occupied by Galloway's relative. Galloway was at the house when officers arrived to search it. Therefore, contrary to his arguments, there was circumstantial evidence connecting him to the residence and therefore to the rifle. The fact cartridges fired from a rifle found at his aunt's home were in the Mazda tended to link him to the Mazda, and thereby supported Rosa's and Andres's testimony that Galloway was the driver of the Mazda who assaulted Rosa. Jurors could find it improbable that the connection between the Mazda, the cartridges, the firearm, and Galloway was merely a coincidence. Thus, while perhaps not overwhelming, the evidence was certainly probative circumstantial evidence tending to establish Galloway's identity as the perpetrator of the assaults.
Nor, in our view, was the probative value of the evidence outweighed by any potential prejudice. The trial court excluded evidence of the drive-by shooting. As presented to the jury, the facts regarding the rifle and the casings were not inflammatory. While the evidence was no doubt unfavorable for the defense, " ' "[p]rejudice" in the context of Evidence Code section 352 is not synonymous with "damaging": it refers to evidence that poses an intolerable risk to the fairness of the proceedings or reliability of the outcome." ' " (People v. Duff (2014) 58 Cal.4th 527, 564.) The challenged evidence was not of such an ilk.
The fact neither M.G. nor any other witness testified to seeing Galloway carrying the rifle does not demonstrate error. "We normally review a trial court's ruling based on the facts known to the trial court at the time of the ruling." (People v. Cervantes (2004) 118 Cal.App.4th 162, 176.) Here, when the court ruled, M.G. was set to testify. Galloway did not move to strike the evidence when she failed to do so. In any event, the admissibility of the evidence did not turn on M.G.'s testimony. While evidence Galloway was seen carrying the rifle would doubtless have been beneficial for the People, for the reasons we have discussed, the evidence was probative even absent such testimony.
And, we are not persuaded that reversal is required by Galloway's citation to People v. Riser (1956) 47 Cal.2d 566, disapproved on other grounds in People v. Chapman (1959) 52 Cal.2d 95, 98 and People v. Morse (1964) 60 Cal.2d 631, 648-649.) There, the court held that evidence a defendant possessed a weapon not used in the commission of the offense is inadmissible for the purpose of showing he is the type of person who surrounds himself with weapons. (Riser, at p. 577 [where prosecution relies upon a specific type of weapon as the murder weapon, "it is error to admit evidence that other weapons were found in [the defendant's] possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons"]; People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393.) But, evidence of weapons other than the actual weapon used in the crime is admissible when probative on issues other than the defendant's propensity to possess weapons. (See People v. Jablonski (2006) 37 Cal.4th 774, 822-823; People v. Cox (2003) 30 Cal.4th 916, 956-957, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ["when weapons are otherwise relevant to the crime's commission, but are not the actual murder weapon, they may still be admissible"]; People v. Smith (2003) 30 Cal.4th 581, 614 ["although the ammunition and derringer were not used in the killing, '[t]heir circumstantial relevancy . . . seems clear,' " and they were properly admitted]; People v. Gunder (2007) 151 Cal.App.4th 412, 416.) Here, the rifle was not admitted to show Galloway was prone to carry firearms, but to link him to the Mazda in order to prove his identity as the assailant. There was no inconsistency with Riser.
3. Galloway's two prior prison term enhancements must be stricken
As noted ante, at sentencing, the trial court imposed two one-year prior prison term enhancements pursuant to section 667.5, subdivision (b). In supplemental briefing, Galloway contends that these enhancements must be stricken in light of the enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), effective January 1, 2020. (See People v. Lopez (2019) 42 Cal.App.5th 337, 341.) The People agree that Galloway is entitled to the ameliorative benefit of the new legislation, and so do we.
"Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years." (People v. Jennings (2019) 42 Cal.App.5th 664, 681; People v. Lopez, supra, 42 Cal.App.5th at p. 340.) Senate Bill 136 amended section 667.5, subdivision (b), to "limit its prior prison term enhancement to only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b)." (People v. Jennings, at p. 681; People v. Winn (2020) 44 Cal.App.5th 859, 872.) Senate Bill 136 applies retroactively to all defendants, such as Galloway, whose judgments were not yet final as of the statute's effective date. (People v. Jennings, at pp. 681-682; In re Estrada (1965) 63 Cal.2d 740, 748; see People v. Bermudez (2020) ___ Cal.App.5th ___ [2020 Cal.App.Lexis 128, *29-30]; People v. Petri (2020) 45 Cal.App.5th 82, 93-94; People v. Winn, supra, at p. 872.)
Galloway's prior offenses were not for sexually violent offenses. The two enhancements must therefore be stricken. In light of these changed circumstances, we remand for resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "]; People v. Jennings, supra, 42 Cal.App.5th at p. 682; People v. Keene (2019) 43 Cal.App.5th 861, 865.)
DISPOSITION
Galloway's sentence is vacated and the matter is remanded for resentencing. The court is directed to strike the two one-year enhancements imposed pursuant to former section 667.5, subdivision (b), and resentence Galloway. In all other respects, Galloway's convictions are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
DHANIDINA, J.