Opinion
F073396
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ARTURO BECERRIL, Defendant and Appellant.
Gregory M. Chappel, 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, Catherine Chatman and A. Kay Lauterbach, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF160647A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Gregory M. Chappel, 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, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J., and Peña, J.
-ooOoo-
A jury convicted appellant Arturo Becerril of assault with a firearm on a peace officer (Pen. Code, § 245, subd. (d)(1)/count 4); possession of a firearm by a felon (§ 29800, subd. (a)(1)/count 5); assault with a firearm (§ 245, subd. (a)(2)/count 6); and attempted vehicle theft (§ 664; Veh. Code, § 10851, subd. (a)/count 8). The jury also found true a personal use of a firearm enhancement in count 4 (§ 12022.53, subd. (b)) and in counts 6 and 8 (§ 12022.5, subd. (a)). In a separate proceeding, the court found true a serious felony enhancement (§ 667, subd. (a)), a prior prison term enhancement (§ 667.5, subd. (b)), and allegations that Becerril had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On March 11, 2016, Becerril filed a timely appeal.
On January 11, 2017, appellate counsel filed a brief that raised no issues and asked this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
On November 13, 2017, appellate counsel filed a petition in this court seeking permission to withdraw his opening brief and file a replacement opening brief that addressed whether he was entitled to the benefit of a recent change in the law that allows trial courts to strike certain firearm enhancements.
On November 17, 2017, this court granted the petition.
On November 28, 2017, appellate counsel filed an opening brief contending: (1) Becerril is entitled to the retroactive application of the change in the law; and (2) the matter should be remanded to the trial court for it to consider whether to strike Becerril's firearm enhancements. We find merit to these contentions and remand the matter to the trial court. In all other respects, we affirm.
Since appellate counsel initially filed a Wende brief in this matter on January 11, 2017, this court sent Becerril a letter informing him that he could file additional briefing. On January 27, 2017, Becerril filed a letter raising several issues. We have considered these issues and find that none of them have merit.
FACTS
On June 26, 2015, at around 8:00 p.m., a group of people confronted Becerril in a commercial parking lot in Bakersfield after he was seen attempting to break into a car. Becerril became angry and had a heated exchange with the group. As he backed away, he drew a large gun from his waistband, and pointed it at the group before fleeing into an alley.
The group flagged down a California Highway Patrol Officer and reported the assault and attempted vehicle theft. The officer then left in his patrol car to search for Becerril and found him walking in an alley. Becerril fled and was able to evade the officer momentarily. However, the officer eventually located Becerril in the parking lot of a funeral home. As the officer drove into the lot, Becerril looked over his shoulder at him. He then turned towards the officer, raised his gun up, and pointed it at the officer before stumbling out of sight in front of a parked car. Becerril emerged on the other side of the car, discarded the gun, and was eventually taken into custody.
On March 11, 2016, the court sentenced Becerril to an aggregate term of 34 years four months: a doubled, upper term of 16 years on his assault on a peace officer conviction (count 4); a 10-year firearm enhancement (§ 12022.53, subd. (b)) in that count; a stayed term on his felon in possession of a firearm conviction (count 5); a consecutive two-year term on his assault with a firearm conviction (count 6); a 16-month term on the firearm enhancement (§ 12022.5, subd. (a)) in that count; a concurrent, aggregate seven-year term on count 8 that included a four-year firearm enhancement (§ 12022.5, subd. (a)), and a five-year serious felony enhancement.
DISCUSSION
On October 11, 2017, the Governor approved Senate Bill No. 620 (SB No. 620), which went into effect on January 1, 2018. (Stats. 2017, ch. 682, § 2.) This bill amends sections 12022.5 and 12022.53, to allow the trial court discretion to dismiss a firearm enhancement imposed pursuant to these sections. (§§ 12022.5, subd. (c) & 12022.53, subd. (h).)
As noted above, the court imposed firearm enhancements pursuant to sections 12022.5 or 12022.53 in counts 1, 6, and 8. Becerril contends the amendments to sections 12022.5, subdivision (c) and 12022.53, subdivision (h) apply retroactively to his case and that the matter must be remanded for the court to consider whether to exercise its discretion to strike these enhancements. Respondent concedes that these amendments apply retroactively to Becerril's case. However, citing People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez), respondent contends remand is not appropriate because there is no reason to believe the court would exercise its discretion to strike any of Becerril's firearm enhancements. We agree with the parties that SB No. 620 applies to Becerril's case and with Becerril that remand is appropriate so the trial court can consider whether to strike his firearm enhancements.
Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants like Becerril whose judgments are not yet final on the statute's operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Because there is no indication that the recent amendments to sections 12022.5 and 12022.53 were intended to operate prospectively only, SB No. 620 applies retroactively to Becerril's case.
Respondent argues remand is inappropriate because in sentencing Becerril, "[t]he trial court gave due consideration to all the facts and circumstances of the case and gave leniency where warranted." While the facts of this case suggest the trial court would not strike any of the firearm enhancements at issue here if it had discretion to do so at the time, we do not agree that there is no purpose to remanding this case.
Further, Gutierrez is distinguishable because in that case, when the trial court sentenced the defendant, it clearly stated it did not find "any good cause to strike" the prior conviction at issue and "a lot of reasons not to," and it concluded that the defendant was "the kind of individual the law was intended to keep off the street as long as possible." (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) In contrast, the court did not make any similar comments here when it imposed the firearm enhancements. This case, therefore, is more like People v. Brown (2007) 147 Cal.App.4th 1213, 1228, where the court noted that it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way. While we offer no position on how the trial court should act when exercising its newfound discretion under SB No. 620, we conclude the trial court should be provided the opportunity to exercise that discretion in the first instance.
Becerril also contends that he would be denied his constitutional right to equal protection if the amendments to sections 12022.5 and 12022.53 were not applied retroactively and the matter was not remanded to the trial court. This contention is moot in light of our conclusion that these amendments apply retroactively to Becerril's case and our decision to remand this matter to the trial court. --------
DISPOSITION
The matter is remanded to the trial court for the court to consider whether to exercise its discretion pursuant to Penal Code sections 12022.5, subdivision (c) and 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2), to strike any of Becerril's firearm enhancements and, if appropriate, following the exercise of that discretion, to resentence Becerril accordingly. In all other respects, the judgment is affirmed.