Opinion
A143354
02-14-2018
THE PEOPLE, Plaintiff and Respondent, v. TOMAS ORONA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C171531)
After a multiple-day crime spree involving assaults with firearms, the unlawful taking of a vehicle, hostage taking, and the attempted murder of a sheriff's deputy, defendant Tomas Orona was convicted by a jury of 10 felonies involving multiple victims. He raises four issues on appeal: was there insufficient evidence to support his conviction for attempted premeditated murder, did the trial court err in not instructing the jury on the effect of voluntary intoxication in deciding whether he acted with intent to kill and with deliberation and premeditation, did the trial court commit sentencing error in applying Penal Code section 654, and should the case be remanded in any event to allow the trial court to consider the application of newly enacted Senate Bill No. 620, which gives trial judges discretion in imposing sentencing enhancements for firearms. We remand the matter for further consideration of the two sentencing issues and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On May 23, 2013, defendant was charged with the following crimes: assaulting Robert Duszynski with a firearm (count 1, Pen. Code, § 245, subd. (a)(2)) with an allegation of personal use of a firearm (§ 12022.5, subd. (a)); possessing a firearm as a felon (count 2, § 29800, subd. (a)(1)); assaulting James Gregory with a firearm (count 3, § 245, subd. (a)(2)) with allegations of personal use of a firearm (§ 12022.5, subd. (a)) and personally inflicting great bodily injury (§ 12022.7, subd. (a)); kidnapping James Gregory (count 4, § 207, subd. (a)) with an allegation of personal use of a firearm (§§ 12022.5, subd. (a) and 12022.53, subds. (b) and (g)); driving or taking a vehicle owned by Victoria Gray (count 5, Veh. Code, § 10851, subd. (a)); evading a peace officer (count 6, Veh. Code, § 2800.2, subd. (a)); assaulting a peace officer with a firearm (count 7, § 245, subd. (d)(1)) with an allegation that defendant personally used a firearm (§§ 12022.5, subds. (a) & (d), 12022.53, subd. (b)); attempting to murder a peace officer (count 8, §§ 187, subd. (a), 664, subd. (e)) with allegations that the attempt was willful, deliberate and premeditated (§ 664, subds. (e)-(f)) and that defendant personally and intentionally discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(c) & (g)); falsely imprisoning Fred Dudek by violence (count 9, § 236) with an allegation of personal use of a firearm (§ 12022.5, subd. (a)); and possessing a firearm as a felon (count 10, § 29800, subd. (a)(1)). The information also alleged defendant had been convicted of two prior serious felonies (§ 667, subd. (a)(1)) and three prior strikes (§ 667, subd. (e)(2)), and that he had served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless other stated.
We describe the facts briefly. On the evening of June 1, 2012, Robert Duszynski was at 574 High Street in Oakland (the High Street residence). Duszynski knew Steve Davis, who was the son of the owner of the High Street residence, and Duszynski was there to help move some furniture from the residence into an adjacent storage container. Duszynski wanted to move into the High Street residence himself someday and was hoping that Steve Davis's daughter Samantha and grandson, who had been living in the residence, had vacated it earlier on June 1.
Within two minutes of Duszynski's arrival, and while he was talking to Steve Davis outside the High Street residence, defendant and James Gregory came around the corner and approached him. Gregory knew defendant for 12 years from being in prison together and living on the streets "off and on." Duszynski was acquainted with defendant and knew Gregory enough to say "hi" to him. Gregory threatened Duszynski, ostensibly about Samantha Davis's statements that Duszynski was threatening her about her occupancy of the residence. Gregory told him to "get the F out of here" and threw a board at Duszynski's car. Duszynski, by then in his vehicle, backed up to get some distance from defendant and Gregory. He heard Gregory say "give me that thing" and saw defendant give Gregory a gun that defendant had been carrying in a leather case; Duszynski recognized the firearm as the .22 caliber gun defendant bought from Fred Dudek, who ran the storage rental facility next door to the High Street residence. Gregory threatened Duszynski with the gun, and then handed it back to defendant. As Duszynski attempted to drive away, defendant pointed the gun at Duszynski and repeatedly shot at him without saying a word. One of the bullets hit the car and Duszynski felt a bullet move across his shirt.
Gregory testified under a grant of immunity regarding the events of June 1.
The next events (and the facts that form the basis of counts 3 through 10) occurred a few days later, on June 4, 2012. That morning, Gregory was at a homeless encampment under the freeway in Oakland with two men, one called "TC" and the other Jason Pumpkinseed. Gregory was injecting heroin in his neck when he heard a "pop" that he later learned was the sound of defendant shooting Pumpkinseed in the leg, using the same gun defendant had used on June 1 to shoot at Duszynski. Defendant then "pistol whipped" Gregory, said he didn't trust Gregory, and shot Gregory in the leg. Defendant would not let Gregory leave his side or seek medical care.
A short time later, defendant (at the wheel), Gregory, Pumpkinseed and a man named Noah drove around in a stolen car (a Saturn), ostensibly on an odyssey to look for heroin. Gregory tried to use his need to get heroin as an attempt to extricate himself from the situation he found himself in with defendant. Before the men left the homeless encampment, Gregory saw defendant check that his gun was loaded and put more bullets in the gun. Defendant's loaded gun was wedged between the driver's seat and the center console. At one point, defendant let Noah and Pumpkinseed out of the car; at a later point defendant picked up another transient.
At about 7:30 p.m. that evening, Duane Fisher, an Alameda County Sheriff's deputy, saw defendant driving a Saturn that was identified as stolen. Fisher lost sight of the car for about 20 or 30 minutes, found it again, and then drove behind the Saturn intending to wait for backup and make a traffic stop. Gregory testified that defendant knew the sheriff's car was behind him. Gregory, in the passenger's seat, told defendant that he didn't want to get into a high speed chase with law enforcement because he had just been shot. Defendant told Gregory not to worry, and defendant's hands reached down toward the gun that was on the console.
At one point, Gregory got out of the car and was able to slowly walk away, while defendant sped off, eventually pulling into Lyons Liquors. It was there that Deputy Fisher parked his patrol car behind the Saturn. Defendant got out of the Saturn, told Fisher he had done no wrong, and demanded to know why he was stopped. Fisher told defendant to get back in the car and keep his hands visible. Defendant got back in the car, but "[dug] around the vehicle in the console area between the seats . . . and in the front." Another one of the passengers got out of car, and defendant drove off, disobeying Fisher's order.
With lights and siren activated, Fisher pursued defendant over the course of two miles through a residential neighborhood. At various times during the chase, defendant drove on the sidewalk, drove at a high rate of speed, and ran stop signs. Fisher observed that defendant seemed bent on doing anything to "get away from the pursuit," including driving through a dirt lot and kicking up a lot of dust before defendant eventually stopped in front of the High Street residence.
Fisher pulled up his patrol car right behind defendant and the Saturn. Defendant was standing near the front bumper of the Saturn. Defendant "fairly quickly . . . [brought] his hands together in front of his face, and then that's when [Fisher saw] the gun," pointed right at Fisher's head. Fisher testified:
"[F]rom doing a lot of practice shooting myself and being on many different ranges, I can definitely tell the look of somebody when they're focusing on a target. When you look down the barrel of a gun, your eyes focus on the sight and on the target itself, and I could recognize that right there . . . ." From Fisher's perspective, defendant's "eyes had that narrowed look over the barrel, over the sight, and he looked like he was ready to kill me. He was very angry, very serious look on his face." Fisher thought there was no escape and that he was "dead right there."
Somehow Fisher managed to get in his patrol car, put the car in reverse, and floor it to speed around a corner just as he heard a gunshot and saw defendant jump over a fence surrounding the High Street residence.
A truck driver named Colee Williams, who happened to be parked nearby, witnessed the end of the hot pursuit and saw defendant shoot at Fisher. He saw defendant get out of the Saturn and heard him shout something like "I didn't do it." From Williams' perspective, the shooter (defendant) got out of the car, sighed, pulled out a revolver, and shot at Fisher. The shooter seemed to pause before shooting at Fisher, as if "he stopped and made a decision." Williams testified defendant fired two or three shots, ran through the gate and "busted open" the door at the High Street residence with his shoulder.
Fred Dudek, who managed the storage units on High Street with his wife and was acquainted with defendant as someone from the neighborhood, was inside the High Street residence with Samantha Davis and her young son when defendant barged in after the shooting. Defendant was holding a gun, and told Dudek to get out of the house. Dudek wanted to take Samantha Davis and her son with him, but defendant would not permit them to leave; defendant said he wanted Samantha Davis and the child to stay inside with him so that the police would not "rush in on him." Dudek eventually convinced defendant to let the other two leave while Dudek stayed behind with him. Sometime after midnight, defendant released Dudek from the house. Defendant surrendered to law enforcement at 3:00 a.m. on June 5. In the course of the evening and the early morning hours before defendant surrendered, he had spoken to various police negotiators.
Defendant was interviewed at the Oakland police station on June 5 by Jason Andersen, a police sergeant, who at one point left defendant alone to get some food. When Andersen returned, he saw that defendant had superficial cuts on his wrists, apparently self-inflicted with a soda can. Andersen went to get help; when he returned to the interview room, defendant had eaten the food. Andersen testified that defendant did not seem high on drugs or "not there" or "not in the proper mental capacity."
Defendant's gun, a .22 caliber revolver, was found on a wicker chair on the front porch outside the High Street residence. Defendant placed it there when he gave himself up. The gun had two live rounds in it and three spent shell casings. In the stolen Saturn an evidence technician found, among other things, two plastic baggies filled with live ammunition and a black bag with an empty gun holster, two spent cartridge cases, and indicia with defendant's name inside. A criminalist from the Oakland crime lab testified that two casings in the black bag and two of the three casings found in the .22 caliber revolver were fired in the same gun; the third casing was likely fired in the same gun. Although the evidence technician searched the scene near the High Street residence, the technician did not find any bullets, which is not uncommon. The criminalist testified that the gun used by the defendant does not eject casings when it is fired; the casings stay in the chamber until they are manually ejected.
Defendant called three witnesses at trial. First, his 17-year-old stepdaughter testified he had been homeless in the year and a half before his arrest and had a drug problem. When she saw him three days before his arrest on June 5, he seemed happy to see her but stressed out. Oakland Police Officer Matt McGiffert testified that he responded to the High Street residence at about 10:15 p.m. on June 4 as part of the SWAT team. He saw defendant come out of the house with a gun pointed to his own head. Defendant eventually surrendered. Finally, defendant called Paul Berg, a psychologist, who interviewed defendant for slightly more than two hours and opined that defendant suffered from major depressive disorder and poly-substance abuse disorder. It was Berg's opinion that this diagnosis could lead to the kind of behavior that defendant exhibited at the time of the crimes. Defendant told Berg that he shot at Fisher because he "just wanted to get away because he was out to get his Schnapps" and heroin, and did not intend to hurt anyone.
Verdict and Sentence
On May 1, 2014, defendant was found guilty of all charges except for the kidnapping of James Gregory (count 4); the jury also found defendant guilty of the lesser included offense to count 4 of false imprisonment of Gregory by violence (§ 236) and found true the allegation that defendant personally used a firearm (§ 12022.5, subd. (a)). The jury found true all of the related special allegations.
On May 16, 2014, the court granted the prosecution's motion to dismiss the third prior strike allegation as duplicative, and found true the remaining allegations relating to his prior crimes.
At the sentencing hearing on August 29, 2014, the trial court struck one of the prior strike allegations, and defendant was sentenced to an indeterminate term of 30 years to life, plus a consecutive 45-year 4-month determinate term.
This appeal followed.
DISCUSSION
I. Sufficiency of Evidence of Premeditation and Deliberation
Defendant contends the prosecution presented insufficient evidence that defendant acted willfully, deliberately and with premeditation in connection with the attempted murder of Fisher, and that the jury erred by finding this "premeditation allegation" true. We disagree.
" 'When a defendant challenges the sufficiency of the evidence, " '[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " ' [Citation.] 'The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.' [Citation.] 'Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' [Citation.] ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (People v. Casares (2016) 62 Cal.4th 808, 823-824.)
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) A verdict of deliberate and premeditated attempted murder requires more. (§ 664, subds. (e ) & (f).) " ' "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' [Citation.] ' " 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .' " ' " (People v. Casares, supra, 62 Cal.4th at p. 824.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the California Supreme Court "identified three factors commonly present in cases of premeditated murder: '(1) [F]acts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as "planning" activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of "a pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed" [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way for a "reason" which the jury can reasonably infer from facts of type (1) or (2).' " (People v. Koontz (2002) 27 Cal.4th 1041, 1081.)
The Anderson factors have also been applied in analyzing whether, as here, attempted murder is willful, deliberate and premeditated in light of section 664. (See, e.g., People v. Gonzalez (2012) 210 Cal.App.4th 875, 887.)
Our high court has cautioned that Anderson " 'did not refashion the elements of first degree murder or alter the substantive law of murder in any way.' [Citation.] In other words, the Anderson guidelines are descriptive, not normative. 'The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.' " (People v. Koontz, supra, 27 Cal.4th at p. 1081.) Thus, the Anderson "factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citation.] However, '[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.' " (People v. Stitely (2005) 35 Cal.4th 514, 543.)
The Attorney General describes three cases where substantial evidence supported the jury finding of premeditation and deliberation and which he contends support the same conclusion in this appeal. In People v. Mayfield (1997) 14 Cal.4th 668, as here, a defendant shot a law enforcement officer behind a gas station, fled the scene, and took hostages to a home nearby. (Id. at pp. 703-710.) During the course of hostage negotiations, the defendant inquired about the well-being of the officer and would not surrender until his father came to the scene. (Id. at pp. 709-711.) In post-arrest statements, the defendant stated that he " 'had to do it' " (referring to the shooting) and that " 'all I could think about was getting his gun and shooting him so he couldn't arrest me.' " (Id. at p. 767.) Our Supreme Court concluded that substantial evidence supported a finding that Mayfield had "made a cold and calculated decision to take [the officer's] life after weighing considerations for and against," based on the post-arrest statements, defendant's action in leading the police officer behind the service station where he could carry out his plan without witnesses, the firing of multiple shots, and firing at the officer's face which is "consistent with a preexisting intent to kill." (Id. at pp. 767-768.) Our Supreme Court in Mayfield noted that the Anderson factors are "not well adapted" to cases where a defendant makes post arrest statements that provide "substantial insight" into his thought processes. Nonetheless, the court in Mayfield found that there was evidence relating to each of the Anderson categories: "[d]efendant's movement to the back of the service station (where no witnesses would be likely to observe) is planning activity, his statement that he was determined to prevent [the victim officer] from arresting him provides a motive, and the firing of the gun at [the victim's] face is a manner of killing that was entirely consistent with a preconceived design to take his victim's life." (Id. at p. 768.) On this record, the evidence was sufficient to support the jury's implied finding of premeditation and deliberation. (Id. at p. 769.)
In reply, defendant attempts to distinguish the facts of the three cases relied on by the Attorney General, contending that the decisions do not "dictate" the result here. We agree there are factual differences and the cases are not on all fours with this one, but they illustrate the application of a range of factors that courts have considered in determining whether there is sufficient evidence of premeditation and deliberation, where, for example, there are post-arrest statements indicative of a motive to get away, shots fired in remote locations or places of safety, or shots fired from or near cars.
The second case is People v. Lenart (2004) 32 Cal.4th 1107, 1127-1128, an attempted murder case where the court found substantial evidence of premeditation and deliberation. A woman came into a bar where the defendant had just murdered the bartender. The defendant pointed his gun at the woman and ordered her on the floor, but they struggled, the gun fired, and the woman managed to flee. The defendant followed her outside as she fled. (Id. at p. 1126.) The court found that the evidence, "although circumstantial, amply supported the jury's findings that defendant premeditated and deliberated a willful murder of [the woman victim] patterned on the just completed murder of [the] bartender." (Id. at pp. 1127-1128.) The attorney general cites Lenart as analogous to defendant here, who was ready armed, willing and ready to use deadly force, having shot Pumpkinseed and Gregory in the morning, reloaded his weapon, and kept it accessible from the driver's seat.
The third case is People v. Rand (1995) 37 Cal.App.4th 999, an apparent gang murder case where the facts are only sketchily described, since the fact section of the opinion is unpublished. But the Attorney General cites Rand for its conclusion that there was sufficient evidence of premeditation and deliberation where, among other circumstances, an avowed gang member shoots a rival gang member because of enmity between them, calling "nonsensical" defendant's argument that it was simply a " 'proverbial "kneejerk" reaction.' " (Id. at p. 1001.) Among the circumstances, the court relied on evidence that defendant had the driver "slow[] [the car] down and virtually stop while he aimed deliberately at the stranded persons he believed" were members of the rival gang. (Id. at p. 1000.)
We conclude there was sufficient evidence of premeditation and deliberation. Defendant shot at Fisher because he wanted to avoid being arrested, as did the defendant in Mayfield. Defendant told Dr. Berg as much; he "just wanted to get away." By the time he encountered Fisher on June 4, he was willing and ready to use force. Earlier that day at the homeless encampment he pistol whipped and shot Gregory and Pumpkinseed, and when he took off from the homeless encampment in the Saturn he made sure his gun was reloaded and that he had live ammunition in the car. Defendant's gun was easily accessible to him as he drove off with his victims in tow. Eventually defendant led Fisher on a chase from the Lyons Liquor store through a residential neighborhood, a chase that ended up at the High Street residence where he knew he could gain entry and take hostages to prevent law enforcement from arresting him. The last part of the chase was off road and through a dirt lot—familiar to defendant and presumably not to Fisher—and it kicked up dust and threw the officer off guard. Once the chase was on, all of this gave defendant time to deliberate and premeditate, and he got out of the Saturn, drew his weapon, stared at Fisher, and shot at him.
Considering the evidence from the perspective of the Anderson factors is also persuasive. There was planning: defendant's .22 caliber weapon was loaded and available to him in the car as he disobeyed Fisher's order to stay put and instead led Fisher on a chase back to the High Street residence. There was motive: in defendant's post arrest statement to his expert witness, Dr. Berg, he said he wanted to avoid being arrested. This was not without reason, in the face of defendant's escalating violence over several days. On June 1, defendant had assaulted Duszynski with a gun, and June 4 started with defendant shooting two other people, pistol whipping one of them, and then driving a stolen vehicle with his victims unwillingly in tow. Defendant knew that a law enforcement officer in a marked car (Fisher) was following him, even before the stop at Lyons Liquors. Defendant only made matters worse when, confronted by Fisher at the liquor store, he disobeyed Fisher's order to get back in the Saturn and sped off instead. Finally, there was the manner of killing from which a plan could be inferred. Defendant shot at Fisher at point blank range, and there was substantial evidence that he fired more than one shot, given Colee Williams's testimony and the forensic evidence.
Defendant hews to the Anderson case and to the cases discussed in that opinion to argue that the premeditation has not been shown. Conceding that defendant's possession of a gun and live ammunition (and the fact that defendant ensured the gun was loaded before he got into the Saturn on June 4 after shooting Pumpkinseed and Gregory) could constitute evidence of planning activity, defendant dismisses that this was evidence of planning since these facts were true prior to defendant's contact with Fisher. Further, defendant argues it is "merely a red herring" that defendant planned to utilize his ready and loaded weapon once the high speed chase started or when defendant led Fisher to the High Street residence. According to defendant, possessing and using the gun showed intent to kill but not that he "necessarily planned" to shoot Fisher. So, too, defendant argues the return to the High Street residence is "not necessarily indicative" of planning. The finder of fact "could . . . infer" that defendant arrived at a location known to him to carry out his attack, but then again the parking lot at Lyons Liquors was isolated, too, and defendant could have escaped an officer just as easily there. Further, the fact that defendant ran into the residence after the shooting simply showed fear, and not premeditation.
On the motive issue, defendant acknowledges that the Anderson court's inquiry as to facts about a defendant's prior relationship with the victim "may not adequately account for the entire range of potential motives" here. Defendant concedes that the statement to Dr. Berg about wanting to "get away" may provide "some evidence" of motive, but contends it provides "equal support" for another conclusion about defendant's mental state. Similarly, conceding that the "severity of the weekend's criminal acts did, in fact, escalate," and the prosecution's argument that defendant's conduct between June 1 and June 4 was an ongoing and escalating attempt to get away with prior criminal acts, defendant contends that this theory is undermined by other evidence. Posed as a series of questions, defendant asks why did he miss hitting Fisher or his car, why did he not shoot him in the parking lot of the Liquor Store, and why did he seem to "calm down" after the police negotiator told him no one was injured? Defendant further argues that Berg's testimony about defendant's mental state, Gregory's testimony that defendant was upset and "didn't care anymore" at the homeless encampment on June 4, and defendant's use of heroin and alcohol as described above, all "undermined" the prosecution's motive theory.
And as to the manner of killing, defendant contends that the point blank shooting simply wasn't as "deliberate" as in People v. Cartier (1960) 54 Cal.2d 300 (Cartier) (cited in Anderson, supra, 70 Cal.2d at pp. 27-29), where defendant, who was a butcher, hit his wife over the head, procured knives from the kitchen, brought them to the room where the wife's body was found and then gruesomely made superficial cuts to locate certain body parts and then murdered his wife by severing those body parts from her body.
Cartier was cited in Anderson as a case where there was "strong evidence" that the "manner of killing must have been the result of calculation." (Anderson, supra, 70 Cal.2d at pp. 28-29.)
We return to the issue on appeal which is whether "any rational trier of fact could have been persuaded beyond a reasonable doubt that defendant premeditated the murder." (People v. Perez (1992) 2 Cal.4th 1117, 1127.) Although defendant counters that his actions were not sufficient to show premeditation and deliberation, he does not defeat the sufficiency of the evidence merely by offering "competing inferences he wishes the jury had drawn." (People v. Casares, supra, 62 Cal.4th at p. 827; see People v. Albillar (2010) 51 Cal.4th 47, 60 ["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."].) In our view, that is what his argument on appeal amounts to; a series of competing inferences. For the reasons stated, the evidence as a whole was sufficient to sustain a finding of premeditation and deliberation.
II. Failure to Instruct on Voluntary Intoxication
Voluntary intoxication is admissible at trial on the issue of whether a defendant "actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b).) Defendant asked the trial court to instruct the jury on voluntary intoxication as it pertained to all of the charged specific intent crimes including the attempted murder charge. The trial court refused on the ground that there was insufficient evidence to support giving the instruction. On appeal, defendant challenges the court's decision not to instruct on voluntary intoxication, but only as it pertains to count 8, the attempted premeditated murder of Fisher. Defendant contends that there was sufficient evidence to warrant giving the instruction as to this offense, and the failure to instruct violated his Sixth and Fourteenth Amendment rights.
At the time of trial, the statute governing the admissibility of voluntary intoxication evidence was codified at section 22. It is undisputed for this appeal that there were no major substantive revisions that affect this case.
Defendant asked the court to give CALCRIM No. 625, the instruction addressing evidence of voluntary intoxication in homicide crimes, and later asked for CALCRIM No. 3426 for non-homicide offenses. On this appeal, defendant is only challenging the court's refusal to instruct with CALCRIM No. 625.
" '[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case.' (People v. Carter (2003) 30 Cal.4th 1166, 1219.) In addition, 'a defendant has a right to an instruction that pinpoints the theory of the defense [citations]; however, a trial judge must only give those instructions which are supported by substantial evidence. [Citations.] Further, a trial judge has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence.' (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) 'A party is not entitled to an instruction on a theory for which there is no supporting evidence.' (People v. Memro (1995) 11 Cal.4th 786, 868.)" (People v. Roldan (2005) 35 Cal.4th 646, 715 (Roldan), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390,421, fn. 22.)
An instruction on voluntary intoxication is a "pinpoint" instruction that may be given upon request. (People v. Verdugo (2010) 50 Cal.4th 263, 295.) A defendant who requests a voluntary intoxication instruction is entitled to one " 'only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's "actual formation of specific intent." ' " (Roldan, supra, 35 Cal.4th at p. 715, quoting People v. Williams (1997) 16 Cal.4th 635, 677.) Thus in People v. Williams, supra, there was no basis to instruct on voluntary intoxication where a witness testified that the defendant was " 'probably spaced out' " on the morning of the killings, and the defendant made statements to police in an interview that he was " 'doped up' and 'smokin' pretty tough then' " referring to around the time of the killings. Further, even if this "scant" evidence was substantial, there was "no evidence at all that voluntary intoxication had any effect on defendant's ability to formulate intent." (16 Cal.4th at pp. 676-678.)
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) We conclude the trial court did not make an error here.
In the trial court, defendant pointed to the testimony of Dudek and Gregory. Dudek testified that at some point when he was being held hostage in the High Street residence, defendant said he was thirsty and Dudek gave him a bottle of wine. According to Dudek, defendant drank the entire bottle of wine. Dudek was asked about defendant's demeanor when he first barged into the house after shooting at Fisher, specifically, "[d]id he seem to you like he was drunk?" Dudek replied: "I don't know. Can I explain that? I don't know him well enough to know if he was drinking or anything like that, so I told the police officers I don't know. I know he was upset." When asked whether Dudek would agree that "there's people that, even if you don't know them, you can tell if they're on drugs or drunk," Dudek answered, "Yes . . . [¶] There's some drunks you can always tell." But when pressed further whether there was anything about Dudek at that time that "told you that he was either drunk or on drugs or anything like that," Dudek testified, "Not right at that point, no."
On cross-examination, Dudek was asked about his prior testimony at defendant's preliminary hearing (which he said he no longer remembered). Dudek's prior testimony was read to the jury as follows:
"Question: And up to that point, you said he wanted a cigarette and beer. Did he seem intoxicated to you at all at that point?
"Answer: I'm pretty sure he did because he did find a bottle of wine that he drank.
"Question: Before that, before he started drinking alcohol in front of you, did he seem intoxicated?
"Answer: Again, when he first came in, that's what I am saying, I don't know him well enough to know or not, but you can tell when someone is not in their right mind. Just from what I would know, I would say yes."
Defendant concedes on appeal that "there is no evidence here that [he] used controlled substances on the day of the offense," but relies on Gregory's testimony that defendant had been using heroin consistently around that time. (Gregory also testified that he did not see defendant use alcohol on June 1 or June 4.)
Defendant contends that there was thus "substantial enough" evidence to warrant giving the voluntary intoxication instruction. In making this argument, he relies on People v. Reyes (1997) 52 Cal.App.4th 975 (Reyes). But Reyes—which addressed the admissibility of voluntary intoxication evidence in a receipt of stolen property prosecution—is distinguishable. There the defendant testified both that he was intoxicated with drugs (including methamphetamine and cocaine which he had taken the day before) when he was found with stolen property an hour after it was taken (id. at p. 985), and how his drug use affected his behavior in connection with the incident. (Id. at pp. 980-981 [" 'When I use drugs . . . I just have a compulsion, you know, just to pick . . . on trash cans. . . . In my state of mind, I think I'm treasure hunting' "].) Here, however, the testimony from Dudek about intoxication on June 4 was at best equivocal; Dudek said he didn't know defendant well enough to say whether he appeared intoxicated after defendant fired his gun at Fisher. Here there was no testimony about defendant's drug use on the days immediately prior to the June 4 attempted murder. Further, Gregory—who had actually known defendant for 12 years and was both coparticipant and a victim in this case—gave no testimony about intoxication or drug use or their effect on defendant on June 4. On this record, the trial court did not err in finding that there was not substantial evidence to support the giving of a voluntary intoxication instruction.
Implicitly conceding that Dudek's testimony is a slender thread on which to hang an instruction, defendant contends that when an instruction is requested by the defense, "[t]he fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon." (Quoting People v. Burnham (1986) 176 Cal.App.3d 1134, 1143.) Using this rationale, defendant contends that it should be of no consequence that Dudek's preliminary hearing testimony was qualified and that he never testified at trial that defendant was intoxicated. This position does not support giving the voluntary intoxication instruction in this case. At issue in Burnham was whether in a forcible rape prosecution the trial court erred in not sua sponte giving a mistake of fact instruction that defendant believed his wife consented to engage in sexual intercourse, the so-called "Mayberry instruction." (Id. at pp. 1141-1143.) The Burnham court makes clear that "the existence of substantial evidence" is still a "threshold issue" in determining whether to give a jury instruction. (Id. at p. 1144.) In the case before us, the trial judge's decision not to give the voluntary intoxication instruction was based on his view that the evidence simply wasn't present, not that its merits, in theory, were inherently unreasonable or not worthy of belief.
People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry).
As described by the Supreme Court in People v. Williams (1992) 4 Cal.4th 354, 350, in Mayberry, supra, 15 Cal.3d 143, "this court held that a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape." A Mayberry defense has a subjective and an objective component. The subjective component "asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent." (People v. Williams, supra, 4 Cal.4th at pp. 360-361, fn. omitted.) The objective component "asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction." (Id. at p. 361.) The Williams court held that because the Mayberry instruction is premised on mistake of fact, "the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not." (Id. at p. 362.) Because there was no such substantial evidence in Williams, the jury instruction was not warranted. (Id. at p. 363.)
In fact, the very experienced trial judge, the Honorable C. Don Clay, thoroughly and carefully considered the request for this jury instruction at two jury instruction conferences; he was conversant with the evidence and the law, and distinguished Reyes, which defendant argued supported giving the instruction in the case. The trial judge emphasized that "I don't have any problem giving an instruction that's supported by the evidence, but I don't have—you tell me where I have evidence to support there's voluntary intoxication, and I'll give it to him. I really would." But there was no such evidence. The trial judge also noted that there was no testimony about defendant having glazed eyes or slurred speech or anything else that would support an inference that "maybe there is. . . intoxication here, voluntary or involuntary."
Concluding that there was no error in not giving the jury instruction, we do not address the issue of whether the error was harmless.
III. The Application of Section 654 in Sentencing
The trial court ordered that the sentences on count 2 (unlawful possession of a firearm on June 1, 2012), count 7 (assault with a firearm on peace officer) and count 10 (unlawful possession of a firearm on June 4, 2012) run concurrent to the sentence imposed. Defendant contends that by operation of section 654, the sentences on these counts should have been stayed, rather than imposed concurrently.
As we will discuss, at the sentencing hearing, there was only an inconclusive comment about section 654 by the prosecutor. Defendant contends, and the Attorney General does not dispute, that defendant's failure to raise the section 654 claim at sentencing does not forfeit the claim on appeal. (See People v. Hester (2000) 22 Cal.4th 290, 295; People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
Section 654, subdivision (a) provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." When section 654 applies to a particular count, the trial court must impose sentence on that count, but then stay its execution. (People v. Correa (2012) 54 Cal.4th 331, 337.)
" ' "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 885.)
" 'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' (People v. Harrison (1989) 48 Cal.3d 321, 335.) ' "The defendant's intent and objectives are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced." ' (People v. Coleman (1989) 48 Cal.3d 112, 162.)" (People v. Capistrano, supra, 59 Cal.4th at p. 886.)
" 'Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.' " (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378.)
Count 7
Defendant contends that the sentence on count 7 (assault with a firearm on Officer Fisher) must be stayed because the "the entirety of this conduct premised the attempted murder conviction."
The Attorney General's contends that in imposing concurrent sentences, the trial court made an "implied finding," supported by substantial evidence, that the assault on Fisher and the attempted murder of Fisher were separate violent acts. The argument is based on the theory that there was evidence of multiple gunshots, and that (apparently) one shot at Fisher was the attempted murder, and the other shot (or shots) was the assault. The Attorney General relies on dicta in People v. Ortega (2000) 84 Cal.App.4th 659, 665 (Ortega), in which this court acknowledged that it is "theoretically" possible for separate gunshots to be "more than a single act."
The problem with this argument is that even if there was evidence of more than one shot fired, here the trial court never made this finding, and what little reference there is in the record to section 654 undermines the Attorney General's argument. When the trial court was discussing its intended sentence as to the assault with a firearm (count 7) and attempted murder (count 8) convictions, it stated that "[c]ount 7 is concurrent because Count 7 and Count 8 are basically alternative." (Emphasis added.) The prosecutor then responded, "I'll submit under 654 those are—" and the court interjected "That's no question." This truncated record, which we have quoted in its entirety, is the only mention of section 654 at the sentencing hearing. The Attorney General concedes there was no express finding as to the applicability of section 654, but concludes in the face of this record that "[t]he prosecutor was not able to put his position on the record. Though the court made ambiguous comments about counts 7 and 8 being 'basically alternative,' the court ultimately imposed concurrent sentences on counts 7 and 8. The trial court's ultimate decision to impose concurrent sentences is an implied finding that Penal Code section 654 did not apply."
We do not read the record this way. It could just as easily suggest that the prosecutor understood section 654 applied, and the trial court agreed but inexplicably did not stay the sentence.
Typically, when prosecutors state they "submit" that means they are making no argument and are leaving the decision in the hands of the judge, without explicitly stating they concede the point.
The cases cited by the Attorney General do not elucidate the issue. In Ortega, supra, 84 Cal.App.4th at pages 662-663, the trial court concluded that section 654 applied and stayed a sentence on an assault with a firearm conviction in light of an attempted manslaughter conviction arising from a single act. The issue on appeal was whether the trial court should have dismissed one of the convictions under section 1385 in the interests of justice in order to avoid leaving Ortega with two strike priors; the issue was not whether section 654 applied. In addressing the theoretical possibility that a court might determine Ortega's was a single act, we discussed People v. Trotter (1992) 7 Cal.App.4th 363, 367-368 (Trotter), a case also relied on by the Attorney General here. In Trotter, it was not error under section 654 to punish defendant for multiple gunshots fired at a law enforcement officer pursuing defendant down a freeway, where "[e]ach shot required a separate trigger pull," in these circumstances described by the Trotter court: "Defendant, as he was driving, turned back, pointed, and shot his weapon. He resumed driving, paused for about a minute, turned back, and shot again. After another few seconds a third shot was fired. There was thus time prior to each shot for defendant to reflect and consider his next action." (Id. at p. 368.) The trial court remarked at sentencing that they were " 'separate acts of violence on different occasions coming down the freeway and putting different people—putting different officers in danger.' " (Ibid.)
Neither Trotter nor Ortega are like the facts here, nor do they shed light on whether the trial court here made an implied finding that section 654 did not apply. We presume that the experienced trial judge considered the applicability of section 654 in imposing sentence. (See Cal. Rules of Court, rule 4.424 ["[b]efore determining whether to impose either concurrent or consecutive sentences on all counts on which the defendant was convicted, the court must determine whether the proscription in section 654 . . . requires a stay of execution of the sentence imposed on some of the counts"].) But in light of the ambiguous record, we cannot say that substantial evidence supports that the trial judge made an implied finding that section 654 does not apply. We will remand to the trial court to consider and clarify whether and how section 654 applies to these counts.
Counts 2 and 10
Defendant contends that the sentences on count 2 and count 10, the unlawful possession of firearm on June 1 and June 4, respectively, must also be stayed because defendant had "already been convicted of other criminal conduct - with associated firearm enhancements" for acts on June 1 and June 4.
The trial court ordered the sentences on count 2 and count 10 served concurrently.
Defendant relies on People v. Lujano (2014) 229 Cal.App.4th 175,190-191, a case where both sides agreed on appeal that the trial court erred in not staying a sentence for possession of a firearm by a felon where that same firearm was the basis for the receipt of stolen property conviction. The Court of Appeal in Lujano agreed, noting that the trial court, in taking the plea, stated it was inclined to apply section 654, and during the sentencing hearing stated that the two counts "related to 'essentially . . . one [and] the same act,' " thereby implicitly finding defendant harbored a single intent. (Id. at p. 191.)
Here, defendant contends, the trial court commented at the sentencing, apparently referring to enhancements, that "[t]he gun use in those counts are basically the ex-felon in possession of a firearm." From this defendant concludes that section 654 should apply to counts 2 and 10, since the trial court here seemed to be indicating, as defendant frames it on appeal, that "in possessing the firearm, appellant harbored the same intent as he did with other sentences and enhancements."
The Attorney General contends that firearm enhancements attached to other charges do not make section 654 applicable to counts 2 and 10. His argument is two pronged. First, he argues that section 654 does not preclude punishment for both a substantive offense and an enhancement. Second, he argues that even if section 654 does apply here, it does not preclude punishment in defendant's case. We address the second point and find there was no error here.
The Attorney General principally relies on People v. Jones (2002) 103 Cal.App.4th 1139 (Jones), where a defendant was convicted of shooting at an inhabited dwelling and being a felon in possession of a firearm and sentenced to concurrent sentences. The court held that "when an ex-felon commits a crime using a firearm, and arrives at the crime scene already in possession of the firearm, it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime. Therefore, section 654 will not bar punishment for both firearm possession by a felon [citation] and for the primary crime of which the defendant is convicted." (Id. at p. 1141.) The defendant in Jones had been convicted of shooting at the inhabited dwelling of a woman and being a felon in possession of a firearm. Although the defendant had a restraining order prohibiting him from contacting his ex-girlfriend, he continued to contact her. On the night in question, Jones was a passenger in a car that drove to his ex-girlfriend's home, and sat in the car while it was parked in front of her house and the driver of the car rang the doorbell and tried to make contact with the ex-girlfriend. Jones remained in the car as it drove off, and 15 minutes later he was still in the passenger seat when the car drove slowly past the ex-girlfriend's house and he fired several gunshots are her house. The Jones court distinguished the defendant's situation there from ones where simply "fortuitous" circumstances resulted in a firearm in the defendant's hand only at the instant that he committed the offense and section 654 applied. (Jones, supra, 103 Cal.App.4th at p. 1144, discussing People v. Bradford (1976) 17 Cal.3d 8 [where an ex-felon was stopped by a highway patrol officer for speeding, wrestled away the officer's revolver and then shot him with it]; and People v. Venegas (1970) 10 Cal.App.3d 814 [where there was a shooting in a bar but no evidence defendant possessed a gun before assault].)
In Jones, supra, 103 Cal.App.4th 1139, the firearm possession by a felon was charged as section 12021, subdivision (a)(1), which was repealed effective January 1, 2012 and recodified as part of the Deadly Weapons Recodification Act of 2010. Former section 12021, subdivision (a) is now codified at section 29800, subdivision (a), which is the basis of counts 2 and 10 here. (See People v. Correa, supra, 54 Cal.4th at p. 334, fn. 1 [explaining recodification and noting that the provision was "carried over 'without substantive change' "].)
In People v. Jones (2012) 54 Cal.4th 350 (Jones II), involving a different defendant but coincidentally with the same surname, our Supreme Court considered whether a convicted felon can "be punished separately for the crimes of possession of a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered loaded firearm in public" (id. at p. 352), and concluded that "[s]ection 654 prohibits multiple punishment for a single physical act that violate[d] different provisions of law," explicitly overruling In re Hayes (1969) 70 Cal.2d 604. (Jones II at p. 358.) In so holding, however, our Supreme Court referenced Jones, supra, 103 Cal.App.4th 1139, which it described as "collecting and discussing the cases" concerning "how section 654 applies to a defendant who is convinced of possession of a firearm by a felon and of committing a separate crime with that firearm." (Jones II, supra, 54 Cal.4th at p. 358, fn. 3.) Our Supreme Court continued, "These cases concern a very different situation, and we do not intend to cast doubt on them." (Ibid.)
Here, substantial evidence supports the trial court's implied finding that defendant's possession of his firearm was separate from his other criminal conduct and the trial court did not err by imposing concurrent sentences. On June 1, defendant arrived at the High Street residence, gun in tow, and was there with Gregory. Then defendant chose to approach Duszynski and shoot at him. And on June 4, defendant showed up at the homeless encampment with his gun and at some point later shot Pumpkinseed and Gregory. Defendant then drove around in the stole Saturn for several hours with the gun in his possession. In the words of Jones, possession of the firearm here was "antecedent to and separate from" the convictions that had firearms enhancements associated with them. (Jones, supra, 103 Cal.App.4th at p. 1147.)
Defendant does not address Jones, let alone attempt to distinguish it. We conclude that the rationale of Jones supports the sentence here, and the trial judge did not err not staying imposition of the sentences for counts 2 and 10.
Defendant contends in reply that this conclusion cannot stand because it is "premised on [an] alleged implied finding that is contradicted by the court's express statements." We disagree. The trial judge's comments about the felon in possession of firearm charges, discussed above, are in the larger context of a lengthy discussion between court and counsel about whether some of the sentences were required mandatory consecutive sentences because this was a two strike case. As the court stated near the outset of the sentencing hearing (after having granted defendant's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and striking one of the strikes), "this is a two strike case, and I want the lawyers to understand the following: [¶] As I look at it, the only question I have here in terms of issues of calculations, et cetera, is whether or not there's mandatory consecutive sentences or discretionary consecutive sentence." The trial court and counsel then went on to discuss how many "separate events" there were for sentencing purposes, and to what extent the sentences were required by law to be "mandatory consecutive." It is clear from the transcript that the trial court and counsel were referring to the application of section 1170.12, and particularly subdivision (a)(6), which provides that "notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious and/or violent felony convictions as defined in subdivision (b), the court shall adhere to each of the following: . . . [¶] (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section."
At the sentencing hearing, after the trial court stated the intended sentence, which included which counts were consecutive to the principal term and which were concurrent sentences, the district attorney stated, "I just want to cite the authority for these, with each separate incident being consecutive, and that's 1170.126 [sic]. And so it would be the four separate, each of these should be consecutive sentences." The court replied in agreement, "That's how I look at it. And I'm going to do so accordingly." The trial court then asked defense counsel if he would like to be heard any further, but at that point defense counsel had nothing further to add. We assume that the reference to section 1170.126 is a stenographer's error. There is no such section in the Penal Code, but there is a section 1170.12 , subdivision (a)(6), that we quoted above and which in context must have been what the court and counsel were referring to in shorthand, and which the court reporter transcribed as "1170.126."
Thus, rather than as a discussion of the application of section 654, the trial court's comments about the felon in possession charges was a comment on whether it needed to be treated as a consecutive separate incident, or whether it could be treated as concurrent. In this context, the trial court chose concurrent, without objection from the prosecutor or defense counsel. In that context, and in light of section 654 and the reasoning of Jones, it was not error under section 654 to impose concurrent sentence on the felon in possession counts, counts 2 and 10. IV. Firearms Enhancement Reconsideration in Light of Senate Bill No. 620
In supplemental briefing, defendant asks us to remand the matter to the trial court to decide whether to strike the firearm enhancements imposed under sections 12022.5 and 12022.53, in light of newly enacted Senate Bill No. 620, effective January 1, 2018, which gives trial courts discretion whether to impose these enhancements. The imposition of these enhancements resulted in defendant receiving additional terms of imprisonment for counts 1, 3, 4, 7, 8 and 9.
The new law amends sections 12022.5, subdivision (c) and 12022.53, subdivision (h) to state: "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 authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
The Attorney General, in supplemental briefing, agrees that section 12022.53, subdivision (h) gives trial courts discretion to impose a lesser sentence, agrees that the amendments apply retroactively to defendants, such as Orona, whose judgments are not yet final, and agrees that "[b]ecause appellant's sentence was enhanced under section 12022.53, and 12022.5, the amendments apply to him retroactively." But the Attorney General contends that "remand is unnecessary" because the record below shows how the trial court would have exercised its discretion under section 1385, and that would be not to dismiss or strike the firearm enhancements. The Attorney General cites to the fact that the trial court sentenced defendant to a total aggregate term of 75 years four months to life, after reciting the circumstances and "great violence" involved in the crimes, finding multiple circumstances in aggravation under California Rules of Court, rule 4.421 and no circumstances in mitigation, and noting that defendant's prior convictions as an adult had "increased in number and severity" and that he was on misdemeanor probation when he committed the offenses of conviction in this case. Given the trial court's comments at sentencing, the Attorney General concludes that "[u]nder the circumstances, no purpose would be served in remanding for reconsideration" (quoting People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez)).
But Gutierrez was a very different case. The only issue on appeal there was whether the trial court had discretion to strike a prior felony conviction in the furtherance of justice under the then existing three strikes law. While the appeal was pending, the Supreme Court determined in Romero, supra, 13 Cal.4th 497 that courts do have discretion to strike three strikes prior convictions. As the Gutierrez court framed the issue: "The holding [in Romero] is made expressly retroactive. Reconsideration of sentencing is required under Romero where the trial court believed it did not have discretion to strike a three strikes prior conviction, unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) On the record in Gutierrez, the trial court stated it would not have exercised such discretion, in any event, to lessen Gutierrez's sentence; under those circumstances, "no purpose would be served in remanding for reconsideration," and the judgment appealed from was simply affirmed. (Ibid.)
Here, Senate Bill No. 620 does not require us to look to whether the trial court believed it did not have discretion in order for its terms to apply retroactively. Further, although the trial court imposed a very lengthy sentence on defendant, it did not state that it would not have exercised its discretion to impose a lesser sentence if the firearm enhancements had not been mandatory. In fact, the trial court exercised its discretion under Romero to strike a prior felony conviction.
Therefore we conclude that, as part of our remand, the trial court shall consider on resentencing whether it should in the interest of justice under section 1385 strike one or more of the firearm enhancements. We express no opinion on the outcome of this consideration.
DISPOSITION
The matter is remanded to the trial court for a sentencing hearing to consider the applicability of section 654 consistent with this opinion, and to consider whether it should in the interests of justice under section 1385 strike one or more of the firearms enhancements. In all other respects, the judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.