Opinion
F077363
05-13-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA MARCELLO HURTADO, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F15906007)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Joshua Marcello Hurtado went to the home of his acquaintance, Joseph Mazza and, while holding Mazza at gunpoint, took various items belonging to Mazza and Mazza's mother. Thereafter, defendant and his codefendants, Christopher Gasca and Alex Melgar, drove away with Mazza in Mazza's car. Defendant told Mazza not to say anything regarding the incident or he would face consequences. Mazza eventually escaped, and he testified against defendant at trial.
Melgar and Gasca were prosecuted separately. They are not parties to this appeal.
A jury convicted defendant of kidnapping to commit a robbery (Pen. Code, § 209.5, subd. (a); count 1), kidnapping to commit a carjacking (§ 209.5, subd. (a); count 2), and criminal threats (§ 422; count 3). The jury found firearm enhancements to each count to be true. (§ 12022.53, subd. (b), counts 1 and 2; § 12022.5, subd. (a), count 3.) Defendant admitted a prior prison term enhancement. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise stated.
After trial but before sentencing, defendant brought a motion for new trial on the grounds that (1) a posttrial letter from Mazza recanting his trial testimony constituted newly discovered evidence supporting defendant's claim of innocence, and (2) trial counsel was ineffective in failing to obtain and present alibi evidence. The motion was denied.
On count 1, defendant was sentenced to a term of life with the possibility of parole, plus 10 years for the firearm enhancement and one year for the prior prison term enhancement. Sentence on count 2, including firearm and prior prison term enhancements, was stayed. On count 3, defendant was sentenced to a concurrent term of three years; sentence on the associated firearm enhancement was stayed.
On appeal, defendant contends the trial court abused its discretion in denying his motion for new trial. He further contends the court did not recognize the discretion recently afforded to it pursuant to Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1, 2), and thus the matter must be remanded for the trial court to consider striking the firearms enhancements. Finally, defendant contends, and the People concede, his one-year prior prison term enhancements must be stricken pursuant to Senate Bill No. 136 (Stats. 2019, ch. 590, § 1).
We conclude the matter must be remanded for the trial court to consider whether to exercise its discretion to strike the firearm enhancements imposed pursuant to sections 12022.5 and 12022.53, and to strike the one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b). In all other respects, the judgment is affirmed.
FACTS
Mazza's Testimony
Mazza testified that, in the early morning hours of September 5, 2015, he was at home in his mother's condominium, packing his belongings because his mother wanted him out of the condo for not following her rules. He was hanging out with Gasca, a recent acquaintance with whom he regularly used methamphetamine. At approximately 2:30 or 2:45 a.m., he heard a loud bang on the garage door and, when he opened it, defendant and Melgar entered the garage. Mazza knew defendant as an acquaintance from middle school and Melgar as an acquaintance from high school. He had spent time with both of them in the weeks before the incident, although not at the same time.
Melgar had a knife and defendant put a small, semiautomatic firearm to Mazza's chest. Gasca remained seated in a chair in a garage. Defendant told Mazza to get back in the house and not to try anything. Defendant and Melgar told Mazza to sit on the couch and asked for the location of his money and belongings. Mazza stated he did not have any money. Defendant gave the gun to Melgar and went upstairs. At some point, Gasca entered the condo and also sat on the couch. Melgar kept the gun pointed at Mazza and took Mazza's phone and the belongings in his pockets. Gasca was on his phone and asked Mazza what he had done and what he had taken from defendant and Melgar, to which Mazza responded, " 'Nothing.' " Mazza questioned Gasca as to why he was still on his phone.
After about 10 minutes, defendant called Mazza upstairs and had him help carry a box downstairs and into the garage. The box contained Mazza's mother's old purses and paperwork belonging to Mazza and his mother. Defendant and Melgar removed some items from the trunk of Mazza's car and placed them in the back of Mazza's truck. Mazza and defendant then placed the box in the trunk of Mazza's car. Defendant said that Mazza owed him $10,000, but Mazza did not know what he was talking about.
They pointed the gun at Mazza and told him to get in the back of his car. Mazza got into the rear driver's side seat. Defendant got into the rear passenger seat. Melgar got into the driver's seat and Gasca got into the front passenger seat. Mazza estimated that the incident inside the condo took approximately 15 to 20 minutes, and it took an additional three minutes to get everything in the car to drive off.
While driving through the parking lot of the condominium complex, Melgar stopped the car and defendant got out. Defendant went to the passenger side of a white Dodge Charger parked in a parking stall. The car window opened, and defendant appeared to speak with someone before he ran back. As they left, the Dodge Charger started following them. They then exited the neighborhood and drove "way out into the country."
As they were driving, defendant pulled the clip out of his gun to show Mazza that it was real and loaded. He told Mazza not to saying anything or there would be consequences. Eventually, the car slowed to a stop and Mazza opened the door, ran, and hid in a grape field. He heard the car creep by and voices asking, "Do you see him?" He stayed quiet until he heard the car leave, and then he ran back toward town. He went to the home of his aunt, where his mother was staying, and told his mother and aunt what had occurred. Mazza estimated it took him approximately 30 minutes to reach his aunt's house.
Police returned Mazza's car undamaged a few weeks after the incident, but all of the belongings inside of it were gone.
Mazza did not speak with Gasca again after the incident. He believed Gasca set him up. He was suspicious of Gasca because Gasca remained on his phone during the incident but refused to call police.
Mazza denied telling a friend named David Lopez that he faked the robbery after taking his mother's belongings himself to support his methamphetamine habit.
Mazza did not notice any injury or bandaging on defendant's right hand.
Gasca's Testimony
Gasca pled no contest to the charge of receiving stolen property in relation to the instant case and agreed to testify in the People's case at trial. He also admitted to other, prior felony convictions.
Gasca testified that, at the time of the incident, he was packing his belongings into Mazza's car because Mazza had agreed to drive Gasca to Gasca's fiancée's house out of town. They heard a loud knock on the garage door and, when Mazza opened it, defendant and Melgar rushed in. Defendant came in first and pointed a firearm at Mazza. They told Mazza he " 'messed up,' " and they were " 'going to get theirs any way that they could.' " Mazza backed up into the house, and defendant told Gasca to go into the house as well.
Gasca met defendant on one prior occasion, sometime in the week before the incident. He had not met Melgar before. At trial, he testified he was familiar with Melgar's name only because they had been codefendants in this case, but otherwise knew Melgar by a nickname.
Gasca and Mazza sat on the couch. Mazza was crying. Defendant handed the gun to Melgar and went upstairs. Eventually, defendant came downstairs, grabbed Mazza, and took him upstairs saying, " 'Show me the money.' " Defendant and Mazza later came back down with tubs containing various items and proceeded toward the garage. Defendant told Gasca to come with them. The men demanded Mazza's keys and put the baskets into the trunk of Mazza's car. To do so, they had to remove some of Gasca's belongings, such as a laptop and tattoo equipment, and Gasca put those items in the back of Mazza's truck.
Melgar pointed the gun at Mazza, and Mazza entered the rear passenger side of the vehicle and moved over to the rear driver's side. They told Gasca to get in the front passenger seat, while Melgar got into the driver's seat and defendant sat in the rear passenger seat. Melgar handed the gun to defendant and they drove away slowly. In the parking area, the car stopped in front of a parking stall and a white Charger flashed its headlights, which Gasca perceived as a signal. When they began driving again, that car followed them.
They then drove out to the countryside. Defendant showed Mazza the gun and released the magazine, which Gasca saw had bullets in it. A couple miles of outside of town, they stopped and told Mazza to get out of the car or he would be shot. Mazza ran out into a field and they drove away with Gasca still in the car. They told Gasca that, because he was "cool about the situation," they would drop him off at a location of his choosing. Gasca told them to leave him in a neighboring town and they did so.
Gasca never returned to the condominium to retrieve his belongings.
Gasca did not recall any injury to defendant's right hand.
Mazza's Mother's Testimony
Mazza's mother testified that, at the time of the incident, she was in the process of evicting Mazza for disobeying her house rules, doing drugs, lacking motivation, being lazy, and being disrespectful. While this was going on, she was not staying in the condominium. She denied Mazza ever took property from her house to buy drugs. She confirmed that, on the date of the incident, she lost 10 to 15 purses with a total value of approximately $200, as well as personal paperwork.
On the morning of the incident, she was at her sister's house. She was awoken around 4:00 or 4:30 a.m. when Mazza came and knocked on the door. Mazza was scared and told her three men went to the house, held him at gunpoint, ransacked the house, and took his car.
Investigation
Police officers were dispatched to the condominium at approximately 5:00 a.m. They found the upstairs portion of the condominium in disarray. In the garage, they found a pickup truck, shoes, and a black bag containing Gasca's identification, social security card, and personal items.
Police encountered defendant approximately one week later, and he had no visible injuries.
Defense Case
A nurse practitioner testified that defendant was seen in the hospital emergency department on August 23, 2015, almost two weeks before the incident, for two cuts to his right palm that he reported having sustained while working on a car window. One cut required nine sutures and the other required five sutures. The wound was wrapped, and a splint was applied, which would generally remain in place for one week. Defendant was seen again on August 28, 2015, and the nurse practitioner determined he could return to work without limitations on August 31, 2015.
David Lopez identified himself as defendant's childhood friend. He had known Mazza for approximately 10 years and spoke with him immediately after the alleged robbery. Lopez testified that Mazza initially told him he was robbed by someone else, then said he had stolen his mother's belongings himself and had made up the robbery to avoid getting in trouble. According to Lopez, Mazza was always stealing from his mother to purchase methamphetamine. Additionally, Lopez testified that Mazza stole $60,000 from his aunt and uncle while in high school, and his mother paid it back.
In the defense case, a police officer testified that Gasca was not able to identify defendant in a photo lineup. However, Gasca "looked at the photo so briefly" that the officer was not sure he examined each individual picture.
DISCUSSION
I. Motion for New Trial - Newly Discovered Evidence
Following trial, defendant sought a new trial based on newly discovered evidence, specifically, a notarized letter written by Mazza after trial, which stated defendant was not involved in the robbery. The court denied the motion after finding the letter was coerced and disingenuous. Defendant contends the court abused its discretion in denying the motion. We disagree.
A. Additional Factual Background
Defendant's Motion
The jury rendered its verdict on June 22, 2017. On October 23, 2017, defendant filed a motion for new trial, arguing newly discovered evidence supported his claim of innocence. This evidence was comprised of a notarized letter, signed by Mazza on August 9, 2017, in which Mazza stated:
"Dear your Honor I am writing this letter today to let you know [defendant]. [Sic] When I was on the stand I wasn't in my right mind because I was on multiple drugs, meth, weed & pills and when I made the 911 call I was under the influence of meth.Additionally, defendant submitted a declaration, dated October 18, 2017, from Hector Contreras, an apparent acquaintance of both Mazza and defendant, in which Contreras stated:
"Now that I'm getting sober and help I understand all the problems this cause [sic]. [Defendant] did not do anything to me. [Defendant] was not even at the seen [sic]. I feel bad for putting [defendant] through all of this whole big misunderstanding situation."
"On Wednesday, August 9, 2017, Joey Mazza was at my residence. While we were hanging out, [Mazza] stated that now that he was sober he felt terrible for what he put [defendant] through. I told him that he could make it right by telling the Court the truth. [Mazza] decided to write a letter to the judge. A notary public office ... came to my house and notarized [Mazza's] letter."
The People's Opposition
On January 5, 2018, the People filed an opposition to the motion for new trial. The People submitted a declaration from Mazza, dated December 28, 2017, stating, "I am in fear for my life, my mother's life, and my grandmother's life," and stating that his statements contained in two police reports were true. The police reports were also included as exhibits to the opposition. The first police report detailed a law enforcement contact with Mazza on August 10, 2017, in which Mazza claimed to have been threatened by defendant's brother, "Jesse" Gonzalez. Mazza explained to police that, on August 9, 2017, he went to a trailer park to meet with an individual regarding the sale of a tablet. While waiting in the trailer park for that individual, several vehicles pulled up, and several subjects exited the vehicles and surrounded Mazza. The individuals included Gonzalez and defendant's mother. Gonzalez stated, " 'If you're going to take my brother for life, I'm going to take a part of your life.' " Gonzalez also stated that Mazza "better not show up to the sentencing ... '[o]r else.' " Gonzalez referred to "[t]aking care of" Mazza, his mother, and his grandmother if Mazza proceeded with the case. Defendant's mother stated she spent too much money trying to get defendant out of jail for Mazza to mess it up, and she would do what she needed to get defendant out. Gonzalez dictated a letter to the court for Mazza to write. Another man stamped the letter with a notary seal and signature. Mazza gave the police a copy of the letter he had written. He also identified Gonzalez from a photo array.
The second police report detailed a follow up interview with Mazza a few days later. In the follow up interview, Mazza stated that two of defendant's female cousins were present for the August 9, 2017 encounter, as well as Contreras, who was the brother of the person Mazza intended to meet in the trailer park. Mazza reported that Contreras told him he needed to fix the problem regarding defendant. Defendant's mother provided Mazza with a piece of paper and the name and address of the court, and she and Gonzalez told Mazza what to write. Gonzalez told Mazza he knew the confidential location where Mazza was staying. Mazza had seen a white Dodge Charger drive by that location several times and believed it to be the same vehicle that followed his vehicle when they left his home after the robbery.
The People also produced jail phone calls between defendant and his mother, in which defendant and his mother discussed Mazza and the letter. In one call, defendant's mother stated that Mazza wrote the letter in front of her of his own free will. However, defendant told his mother, "[Y]ou didn't have nothing to do with the letter. You ... were never there." Defendant's mother responded that "the truth is already out."
Defendant's Response
With his response to the People's objection, defendant submitted several declarations to support the credibility of Mazza's letter. Gonzalez provided a declaration stating he attended a funeral with his mother and a female cousin on August 9, 2017. Around 3:00 p.m., Gonzalez and his cousin arrived at the trailer park. His mother arrived with a notary shortly thereafter. Mazza and Contreras were inside a shed when Gonzalez arrived and, when they came out, Mazza sat at a table and began writing the statement. At approximately 4:00 p.m., everyone left. Later that evening, Gonzalez, Contreras, and two of Gonzalez's female cousins met Mazza in a parking lot and gave him a copy of the statement. Gonzalez denied threatening or coercing Mazza, knowing where he lived, driving by any locations where Mazza was located, or being parked in the condominium parking lot at the time of the incident. However, he acknowledged he owned the vehicle described by Mazza as having driven past the confidential location.
Contreras provided a declaration stating that he encountered Mazza at the trailer park at 10:30 a.m. on August 9, 2017. Contreras notified defendant's mother that Mazza was there. Eventually, Mazza told Contreras he had lied about the incident and had given his mother's belongings to a "dope dealer" who showed up to the house to collect on Mazza's debts. Mazza told Contreras he fabricated the incident to avoid being kicked out by his mother, and he accused defendant because "he (Joshua) is black." Mazza stated he was now sober and remorseful for lying and wished to make things right. He volunteered to write a statement exonerating defendant, but not Melgar or Gasca (who "made a deal with the DA"). Mazza explained that he did not want to get in trouble with the police or his mother for lying, and therefore wished to maintain the narrative that he was robbed by someone. Contreras notified defendant's mother and told her to bring a notary to witness Mazza's statement. When defendant's mother arrived, Mazza told her he was sorry, and that defendant was innocent. Various members of defendant's family were present when Mazza wrote his statement. The notary signed the statement and took it with him. Contreras confirmed he later went with Gonzalez and two of Gonzalez's cousins to a parking lot to give Mazza a copy of the statement, which Mazza put in his pocket. The day after Mazza "made the false police report," Contreras contacted Mazza "to ask him why he made the false report," and Mazza reported that his father found the statement, got angry, and made Mazza call the district attorney.
Contreras's sister provided a declaration stating she looked out the window of the trailer and heard Mazza say to defendant's mother, "I'm sorry for putting [defendant] in jail by lying but I hope with this I made things right," and "I just don't want to go to jail."
The notary provided a declaration stating he did not know defendant's mother and had not spoken to her at any time prior to receiving a call from her on August 9, 2017, to provide notary services. When he arrived at the trailer park, he was introduced to Mazza and told that Mazza wanted to write a letter to the judge who presided over his case. According to the notary, "[Mazza] was worried about wording of the letter, as he did not want to be in trouble for lying on the stand. People were giving him suggests [sic] on how to word the letter so that he, [Mazza], did not incriminate himself." The notary did not witness anyone threatening or forcing Mazza to write the letter. The notary described Mazza as nervous, but not scared. The notary confirmed he took the letter with him when he left and arranged for defendant's mother to pick up the original and copies at his office.
David Lopez, who testified on defendant's behalf at trial, provided a declaration stating that Mazza informed him on August 9, 2017 that he " 'made it right' " by writing a letter to the judge in defendant's trial and telling the truth about what happened. Lopez stated he had been in "constant contact" with Mazza after that date, and Mazza never mentioned being forced or threatened into writing the letter. However, Mazza told Lopez he feared going to jail for perjury based on his trial testimony.
One of defendant's attorneys provided a declaration stating that Mazza came to her office on February 20, 2018, stated he was there of his own free will, and asked to write a letter to the court. In Mazza's February 20, 2018, letter, which also was included as an exhibit to the response, Mazza stated he was under the influence of drugs at the time of the incident and had mistakenly assumed the perpetrator of the incident was defendant, solely because the perpetrator was dark skinned.
Defendant's mother, Sophia Oloffson, provided a declaration stating she was attending a funeral when she received a message and phone call from Contreras telling her Mazza was at the trailer park. Later, she received a call from Contreras stating that Mazza wished to "make things right" for defendant by writing a letter to the judge, and suggesting she bring a notary to the trailer park. She contacted a notary she had no prior knowledge of, and he agreed to meet her at the trailer park. When she arrived, Mazza told her he was sorry. Contreras provided Mazza paper, and Mazza wrote the letter, and the notary signed it and took it with him. Mazza told Oloffson he was sorry and that he did not want to go to jail. Neither she, nor her family, friends, or acquaintances threatened or coerced Mazza.
The Court's Ruling
The court held a hearing on the motion for new trial and the parties submitted the matter on the papers. The court ultimately determined that Mazza's August 9, 2017, letter was "disingenuous" and the product of coercion. The court stated, "I sat through the trial. I heard the evidence. I heard the direct examination, the cross-examination, I heard the statements from other witnesses, and the information that was provided by [Mazza] was corroborated during the course of the trial." Accordingly, the court determined "there is no newly discovered evidence" and denied the motion.
B. Applicable Law
A defendant may move for a new trial based on newly discovered evidence. (§ 1181, subd. (8); People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) The granting or denial of a motion for new trial on the ground of newly discovered evidence rests in the sound discretion of the trial court. (Ibid.) We will not disturb the ruling " ' " ' "absent a manifest and unmistakable abuse of discretion." ' " [Citation.]' [Citation.]" (Ibid.)
"In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ' "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." '[Citations.]" (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)
"The role of the trial court in deciding a motion for new trial based upon a witness's recantation is to determine whether the new evidence is credible, i.e., worthy of belief by the jury. That determination is made after a consideration of all the facts pertinent to the particular issue. The trial court is not the final arbiter of the truth or falsity of the new evidence. [¶] Once the trial court has found the recantation to be believable, it must then decide whether consideration of the recantation would render a different result on retrial reasonably probable. [Citation.]" (People v. Minnick (1989) 214 Cal.App.3d 1478, 1482 (Minnick).) Generally, however, "the recantation of a witness should be given little credence." (Id. at p. 1481.) "It has long been recognized that 'the offer of a witness, after trial, to retract his sworn testimony is to be viewed with suspicion.' [Citations.]" (In re Roberts (2003) 29 Cal.4th 726, 742 (Roberts).) "[T]he trial court is in the best position to determine the genuineness and effectiveness of the showing in support of the motion [citation]." (Minnick, at p. 1481.)
C. Analysis
We conclude the trial court did not abuse its discretion in determining Mazza's letter was coerced and disingenuous, and therefore did not constitute newly discovered evidence to support granting a new trial.
We note the following timeline regarding Mazza's statements: First, Mazza identified defendant as the perpetrator at trial. Then, he recanted in the posttrial notarized letter. Immediately thereafter, however, he told police the notarized letter was coerced, then reaffirmed in a declaration that his statements to the police were true and that he feared for his life. Months later, he wrote another letter exonerating defendant. Mazza's original recantation warrants "little credence." (Minnick, supra, 214 Cal.App.3d at p. 1481.) That he subsequently disavowed his recantation further diminishes its credibility, particularly given his claim that the recantation was coerced. (Roberts, supra, 29 Cal.4th at p. 743 [the court is not required to disturb the jury's verdict "based upon a recantation that must be viewed with suspicion and was subsequently disavowed by [the witness]"].) That Mazza turned course once again and attempted to endorse his original recantation demonstrates only that he lied at some point, not that his letter of recantation was worthy of belief. (See ibid.)
We note as well that Mazza's alleged recantations are inconsistent and based, at best, on partial truths. Contreras and Lopez claimed that Mazza told them he stole his mother's belongings himself or gave them to a "dope dealer" and fabricated the robbery to avoid getting in trouble. His recantations, however, suggest the robbery occurred, but defendant was not involved. Contreras explained that this is because Mazza was unwilling to disavow the robbery in its entirety because he did not want to get in trouble for lying. Mazza was therefore unwilling to recant his story with respect to Melgar or Gasca. In other words, according to defendant's evidence, the recantations are true to the extent they exonerate defendant, but otherwise false. That the recantations are admittedly false, even if partially so, lends further support to the trial court's determination that they are not worthy of belief.
Furthermore, the court found it significant that Mazza's trial testimony was corroborated by other witnesses. Gasca's testimony was remarkably similar to Mazza's, and both witnesses testified that they had not communicated with one another since the night of the incident. Mazza's mother additionally testified that Mazza came to her sister's house at 4:00 or 4:30 a.m. on the morning of the incident and reported that he was robbed at gunpoint by three men who took his car. This testimony likewise corroborated Mazza's. Furthermore, evidence at the scene was consistent with a robbery and with Mazza's and Gasca's version of events. The corroborating testimony alone is sufficient to demonstrate the trial court did not abuse its discretion in denying the motion.
Nonetheless, defendant contends that the court was required to grant the motion because the newly discovered evidence contradicted the strongest evidence against defendant at trial, namely Mazza's own testimony. While " 'a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant,' " the newly discovered evidence must "significantly contradict or diminish any probative value of [the witness's] earlier testimony regarding defendant's guilt," as well as the strength of other evidence against the defendant, before a new trial will be granted. (Delgado, supra, 5 Cal.4th at p. 329.) Where, as here, the claim of newly discovered evidence is predicated on a witness's recantation that is determined by the trial court to be unworthy of belief, there is no probability of a different result on retrial and no basis for granting the motion. (See ibid.; cf. Minnick, supra, 214 Cal.App.3d at pp. 1481-1482.)
Finally, defendant contends the court did not review defendant's response to the People's opposition or the exhibits attached thereto, because it did not so state when it delivered its oral ruling. We reject this argument as unfounded. Two proceedings were held on the new trial motion: a hearing on the motion, and a proceeding for the court to deliver its oral ruling. Defendant mistakenly characterizes these as an "originally scheduled" hearing and a "rescheduled" hearing. However, at the first hearing, the court stated it had read and considered the motion, the People's opposition, and defendant's response, and was ready to take the matter under submission. The parties were invited to present additional evidence but submitted on the papers. The court gave its tentative ruling to deny the motion, stated it would reread the parties' briefs, and took the matter under submission. In other words, the first hearing was the hearing on the motion. Because the court stated at this hearing that it had considered defendant's response, we have no basis to conclude otherwise.
As stated by the court, the purpose of the second proceeding was solely "the ruling on the motion for a new trial." There, the court stated it had reviewed defendant's motion and the People's opposition, as well as voluminous exhibits, but did not specifically mention defendant's response. Nonetheless, its ruling was consistent with its tentative ruling (for which defendant's response was plainly considered), and its reasoning was based primarily on the evidence produced at trial. We will not disturb the court's ruling simply because it neglected to mention defendant's responsive documents a second time.
In sum, the court did not abuse its discretion in denying the motion for new trial on this basis.
II. Motion for New Trial - Ineffective Assistance of Counsel
Defendant's motion for new trial also alleged that defendant's trial counsel was ineffective in failing to obtain and present evidence suggesting defendant had an alibi on the night of the incident. The court denied the motion after finding that trial counsel's decisions were strategic and did not deny defendant a fair trial. Defendant contends the trial court abused its discretion in denying the motion on this basis. We disagree.
A. Additional Factual Background
With his motion for new trial, defendant submitted a declaration stating that, on the morning of the incident, he left a party at 1:00 a.m. to walk to a convenience store. At approximately 1:30 a.m., he was on his way back to the party when he was stopped by a police officer, who ran a search of defendant's name. Although defendant was permitted to leave, the police officer wrote an incident report regarding the encounter. Defendant returned to the party and did not leave until approximately 2:30 a.m., when he received a ride home. He then went to Contreras's house, where the two played dice and smoked marijuana and methamphetamine until defendant fell asleep at approximately 6:00 a.m. Defendant left Contreras's house at 10:00 a.m. Defendant stated that he informed his trial counsel of the police stop and his time with Contreras. However, counsel did not obtain the report and did not call Contreras as a witness. With his new trial motion, defendant provided a copy of the incident report, which confirmed he was subject to a suspicious person stop at 1:28 a.m. Defendant's mother submitted a declaration confirming that she provided the incident report number and information concerning Contreras's whereabouts to counsel.
In opposition, the People argued the incident report was harmful to the defense because it placed defendant less than seven miles from the incident in the relevant time period. The People also submitted a declaration from defendant's trial counsel and trial counsel's investigator. Counsel explained that he did not present an alibi witness because the defense theory was that no robbery occurred. In support of this theory, counsel subpoenaed Lopez to testify that Mazza told him there was no robbery, and subpoenaed Mazza's mother to testify that Mazza was being evicted from her home due to his behavior.
The defense investigator declared that Contreras reported being with defendant "sometime around the month of the robbery" to play dice, drink, and use methamphetamine and marijuana, but could not elaborate on a date and time and did not recall defendant having a wounded hand. Counsel stated that Contreras was not a viable witness because he "never knew any specifics" and had no recollection of defendant having a wounded hand, despite playing dice with him that night. Because the defense attempted to undermine the testimony of Mazza and Gasca by pointing out they failed to notice defendant's injured hand, such testimony from Contreras would not have been helpful to the defense theory. Neither declaration addressed counsel's failure to obtain the police incident report.
In response, defendant argued that, because he was on foot, it would have been impossible for him to arrive at the scene of the incident at the time alleged, given the suspicious person stop.
The court ruled:
"[I]n terms [o]ver which witnesses to call, that type of thing, the attorney is the captain of the ship, as it is phrased in case law. And the Court read the declarations of both the investigator ... as well as [trial counsel], and the Court is satisfied that the decisions that were made are strategic decisions and that are not grounds for a motion for new trial. Uh, [defendant] may not agree with those decisions, but the Court does not believe that the decisions that were made were such that they denied him a fair and impartial trial and constituted ineffective assistance of counsel. The Court is aware of [trial counsel's] history, his experience, and the Court is satisfied that his performance in this case was appropriate. For those reasons the Court is going to respectfully deny the motion for new trial."
B. Applicable Law
Defendant bears the burden of demonstrating ineffective assistance of counsel. (People v. Mickel (2016) 2 Cal.5th 181, 198.) " '[A] defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two-pronged showing: that counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.' [Citations.] Rarely is ineffective assistance of counsel established on appeal since the record usually sheds no light on counsel's reasons for action or inaction." (People v. Woodruff (2018) 5 Cal.5th 697, 736 (Woodruff).) In determining whether counsel's performance was deficient, we consider whether " ' " 'counsel's representation fell below an objective standard of reasonableness under prevailing professional norms.' " ' " (People v. Johnson (2016) 62 Cal.4th 600, 653.) We " 'defer[] to counsel's reasonable tactical decisions' and presume that 'counsel acted within the wide range of reasonable professional assistance.' [Citation.]" (People v. Arredondo (2019) 8 Cal.5th 694, 711 (Arredondo).) Thus, we may reverse " '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.' [Citations.]" (Ibid.)
Where the trial court has denied a motion for a new trial based on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent they are supported by substantial evidence, but reviewing de novo the ultimate question of whether the facts demonstrate a violation of the right to effective counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725 (Taylor); accord People v. Rodriguez (2019) 38 Cal.App.5th 971, 977 (Rodriguez).)
C. Analysis
We conclude counsel was not ineffective in failing to obtain or present the police incident report regarding the suspicious person stop of defendant at 1:28 a.m.
On appeal, defendant does not challenge counsel's decision not to call Contreras as a witness.
First, this is not a circumstance in which there is no satisfactory explanation for counsel's decision. (See Arredondo, supra, 8 Cal.5th at p. 711.) As counsel himself declared, he elected not to pursue alibi evidence because the defense was grounded on the theory that no offense occurred, and thus no alibi was necessary. Moreover, the record discloses an additional tactical reason for declining to pursue the incident report: the incident at issue here was alleged to have occurred at approximately 2:30 a.m. Thus, an incident report placing defendant seven miles from the scene of the crime at 1:28 a.m. does not provide him with an alibi for the offense. To the contrary, the incident report placed defendant in close proximity to the scene of the crime in the immediately preceding time period. Although defendant argues he was on foot and could not have travelled seven miles in one hour, evidence at trial suggested defendant was in contact with at least one other vehicle in the condominium complex where the incident occurred. It therefore is not apparent defendant traveled to the scene on foot. Given the likelihood that the incident report could implicate defendant, reasonable trial counsel could have made a tactical choice not to pursue it.
Furthermore, given the timing of the incident report and the timing of the offense, the report had little probative value, and provided weak, if any, support for an alibi offense. Defendant therefore has not demonstrated it is reasonably probable he would have achieved a more favorable result if not for defense counsel's inaction. (See Woodruff, supra, 5 Cal.5th at p. 736.) Defendant has not demonstrated ineffective assistance of counsel.
Nonetheless, defendant contends the trial court's failure to specifically mention the incident report in its ruling on the new trial motion constituted an abuse of discretion and warrants, at the very least, a limited remand. However, there appears to be no factual dispute that the incident report states what defendant claims and that counsel did not pursue it. There being no factual dispute, the question of whether counsel's omission constituted ineffective assistance of counsel is a question of law, for which we do not rely on the trial court's determination. (Taylor, supra, 162 Cal.App.3d at pp. 724-725; accord, Rodriguez, supra, 38 Cal.App.5th at p. 977; see People v. Hamilton (2009) 45 Cal.4th 863, 923 ["The determination of whether a defendant received ineffective assistance of counsel is a legal one made by a reviewing court, not a factual one entrusted to a finder of fact"].) Because we have independently determined that defendant has not demonstrated ineffective assistance of counsel on the undisputed facts, there is no basis for remand.
III. Senate Bill No. 620
Defendant contends the court was unaware of its recently afforded discretion to strike his firearm enhancements. Accordingly, defendant contends, the matter must be remanded for the court to make a "fully informed decision on whether to strike the gun enhancement[s]." We agree the record reflects the court was not aware of its sentencing discretion, and we cannot conclude that remand in this case would be futile. Accordingly, we will remand for the court to determine whether to exercise its discretionary sentencing authority to strike the firearm enhancements.
The court imposed a firearm enhancement on each of three counts but stayed the sentence on counts 2 and 3. It is unclear from the opening brief whether defendant intends to challenge all of the enhancements, or merely the enhancement to count 1. We will address all of the enhancements, as they are all subject to the same analysis.
A. Background
Senate Bill No. 620 (2017-2018 Reg. Sess.) was signed by the Governor on October 11, 2017, and became effective January 1, 2018. It amended the firearm enhancement provisions in sections 12022.5 and 12022.53 to grant trial courts, for the first time, the discretion to strike firearm enhancements arising under those sections: "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." (§§ 12022.5, subd. (c), 12022.53, subd. (h); as amended by Stats. 2017, ch. 682, §§ 1, 2.)
Defendant was sentenced on April 13, 2018, after Senate Bill No. 620 became effective. Each of the three counts for which defendant was to be sentenced included a firearm enhancement that was found true by the jury. Counts 1 and 2 included enhancements pursuant to section 12022.53, subdivision (b). Count 3 included an enhancement pursuant to section 12022.5, subdivision (a). Prior to the sentencing hearing, defendant filed a sentencing memorandum, in which he asked the court to strike the section 12022.53, subdivision (b) enhancements pursuant to Senate Bill No. 620.
Prior to imposing sentence, the court stated:
"I get no pleasure in sentencing people to prison, I really don't. And I really don't have discretion in this case in so much as, uh, the Penal Code, specifically prescribes what is mandatory, uh, in this situation. So my hands are- are tied. Uh, not to say that I would exercise many changes, because the allegations in this case were kidnapping and personal use of a firearm, those types of behaviors cannot be tolerated in a civilized society. I don't care what a person's circumstances are currently or what the person wanted to achieve by engaging in those acts. It's unacceptable, and the legislature has made that determination by having specific sentencing requirements as for those offenses, because they likewise find that that behavior is unacceptable and cannot be allowed in a civilized society. You are a very young man and it really troubles me to see you being sentenced to such a sentence. It really does." (Italics added.)The court further noted that, pursuant to section 12022.53 and section 1203.06, defendant was not eligible for probation: "So even though if this Court determined that, 'You know what, I think he should get probation,' I legally cannot give him probation." The court continued:
"With respect to the enhancements, um, the 12022.53(b), it was alleged in the second amended information and proven by the jury that you committed the specific firearm enhancement pursuant to 12022.53(b), and that mandates that you serve an additional consecutive term of ten years. And
you heard me said, 'Mandates.' It doesn't give the Court any discretion in that regard." (Italics added.)
The court also noted that the section 12022.5, subdivision (a) enhancement to court 3 was mandatory, but that it would be stayed. --------
After the sentence was pronounced and the defendant committed to custody, the following discussion took place:
"[THE PROSECUTOR]: Judge, can I have one comment only?
"THE COURT: Yes.
"[THE PROSECUTOR]: Just because the law changed, you - under your discretion, you're not taking the discretion to strike the 12022.53 enhancement, which you do have. I just want to make sure for the record.
"THE COURT: No, not under the circumstances. I heard the evidence in the case.
"[THE PROSECUTOR]: I understand. I'm just saying, if you did strike all that, he could be probation eligible. I just want to make sure that that's clear.
"THE COURT: I'm making sure that's clear, not when there's a kidnapping and guns.
"[THE PROSECUTOR]: I understand. I'm just saying that law changed in the interim.
"THE COURT: I appreciate you for pointing that out.
"[¶] ... [¶]
"THE COURT: .... [Prosecutor], were you implying that you believe he should receive probation?
"[THE PROSECUTOR]: No, no, just that I know this is probably going to go up on appeal, and with those enhancements in there, he not eligible for probation as the Court - but the way it was written in the probation report, they do it a different way saying if you didn't strike it, then he could, and I just want to make sure that that's on the record, because I imagine this will be an appeal.
"THE COURT: No doubt. Thank you."
B. Analysis
Generally, absent evidence to the contrary, a reviewing court will presume that the trial court " ' "knows and applies the correct statutory and case law." '[Citation.]" (People v. Jones (2017) 3 Cal.5th 583, 616.) "A court is 'presumed to have been aware of and followed the applicable law' when imposing a sentence. [Citation.]" (People v. Reyes (2016) 246 Cal.App.4th 62, 82; accord People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 ["in light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion"].)
Here, however, the trial court repeatedly, and mistakenly, stated it had no discretion to strike the firearm enhancements. There is, therefore, evidence that the trial court may not have been aware of its discretion under Senate Bill No. 620 at the time the sentence was imposed. " 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) It is plain that the court here did not exercise informed sentencing discretion.
Nevertheless, the People argue that the court's post-sentencing colloquy with the prosecutor evidences the court's familiarity with Senate Bill No. 620. We are not so convinced. When the prosecutor attempted to confirm that the court was "not taking the discretion to strike the 12022.53 enhancement," the court stated, "No, not under the circumstances." When the prosecutor stated his desire to make it clear that, "if [the court] did strike all that, [defendant] could be probation eligible," the court stated, "I'm making sure that's clear, not when there's kidnapping and guns." However, the prosecutor did not specifically mention Senate Bill No. 620, and neither statement reflects that the court knew it had discretion to strike the firearms enhancements, particularly given the court's earlier statements to the contrary. Additionally, the court's query to the prosecutor, "[W]ere you implying that you believe he should receive probation," suggests the court was unsure regarding the point the prosecutor was trying to make.
Where the court has exercised its sentencing authority without being aware of the scope of its discretionary powers, our Supreme Court has held that "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.' [Citations.]" (Gutierrez, supra, 58 Cal.4th at p. 1391.) Here, the court believed it was statutorily prohibited from exercising discretion when it imposed the section 12022.53 enhancement on count 1 and imposed and stayed the section 12022.53 and 12022.5 enhancements on counts 2 and 3, respectively. It did not make any discretionary sentencing findings that would eliminate the need for a remand in this case. Any relevant statements the court did make were ambiguous. On the one hand, the court stated it would not make "many changes" to the sentence, even if it had discretion, because the kidnapping and personal use of a firearm were "behaviors [that] cannot be tolerated in a civilized society." On the other hand, the court also stated, "You are a very young man and it really troubles me to see you being sentenced to such a sentence." We therefore cannot say that a remand for an exercise of discretion under Senate Bill No. 620 would be futile in this case. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 ["Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so"]; People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [same]; cf. People v. Jones (2019) 32 Cal.App.5th 267, 274 [remand unnecessary where record clear trial court would not exercise discretion to strike enhancement under Sen. Bill No. 1393]; People v. McVey (2018) 24 Cal.App.5th 405, 419 [record clear trial court would not exercise discretion to strike enhancement under Sen. Bill No. 620].)
We will remand for the court to consider whether to exercise its discretionary sentencing authority to strike the firearm enhancements pursuant to 12022.5 and 12022.53.
IV. Senate Bill 136
Defendant's sentence includes 2 one-year prior prison term enhancements, one of which was stayed. (§ 667.5, subd. (b).) Defendant and the People agree that, on remand, the trial court should be instructed to strike the prior prison term enhancements.
Effective January 1, 2020, Senate Bill No. 136 amends section 667.5, subdivision (b) to provide that a one-year prior prison term enhancement will apply only if a defendant served a prior prison term for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.) Our Supreme Court has held that " ' "[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].' [Citations.]" (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v. DeHoyos (2018) 4 Cal.5th 594, 600.) The parties agree that Senate Bill No. 136 is retroactive and the amendment to section 667.5, subdivision (b), applies in this case.
Defendant's prior prison term arose out of convictions for receiving stolen property (§ 496) and carrying a concealed dirk or dagger (§ 21310), neither of which qualifies as a sexually violent offense under Welfare and Institutions Code section 6600, subdivision (b). We accept the People's concession that, on remand, the trial court must be instructed to strike the prior prison term enhancements imposed on counts 1 and 2. The trial court will be directed to prepare an amended abstract of judgment reflecting this modification.
DISPOSITION
The matter is remanded for the court to consider whether to exercise its discretion to strike the firearm enhancements imposed pursuant to sections 12022.5 and 12022.53. On remand, the court is directed to strike the one-year prior prison term enhancements to counts 1 and 2. (§ 667.5, subd. (b).) The trial court is directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation and to appellate counsel. In all other respects, the judgment is affirmed.
POOCHIGIAN, Acting P.J. WE CONCUR: PEÑA, J. DE SANTOS, J.