Opinion
A150193
07-12-2018
THE PEOPLE, Plaintiff and Respondent, v. SEAN DSHA BLACKMON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1503789)
Defendant Sean Blackmon was convicted of eight criminal offenses, including two counts of kidnapping to commit robbery. He contends the guilty verdicts on those two counts are unsupported by substantial evidence. He also raises three sentencing issues. We conclude substantial evidence supports the kidnapping to commit robbery verdicts but that his sentencing arguments are well taken. We thus remand for resentencing but otherwise affirm the judgment.
BACKGROUND
The Facts
On August 14, 2015, Emmanuel Herrera lived with his two brothers and their fiancées in a house on Buhne Street in Eureka. They were moving out of the house soon, so they were in the process of packing up their belongings. That afternoon, Herrera went out for lunch with his close friend, Hector Carranza, who was helping with the move and had spent the night at the house. When they returned to the house after lunch, Herrera unlocked the front door but was unable to open it. He peered in a window and saw a pole wedged up against the door. Pushing harder on the door, he was able to open it about eight inches. Through the crack, he saw a hand and heard a male voice say, " '[H]old on.' " Herrera walked around towards left side of the house and was surprised to see an unfamiliar backpack on the deck. He picked it up and was putting it down by a car parked in the driveway in front of the house when defendant came around the right side of the house, carrying a shotgun that Herrera recognized as the one he kept next to his bed. Pointing the cocked shotgun at Herrera, defendant asked, " 'What are you guys doing here?' " Herrera responded, " 'I live here.' "
Pointing the shotgun at Herrera and Carranza, defendant told them to walk around to the back of the house and go inside. Herrera asked why he was doing this, and defendant answered, " 'You messed with the wrong people.' " As they were walking to the back of the house, defendant periodically touched the shotgun to the back of Herrera's head. He told them to keep their hands where he could see them and demanded their cell phones and keys. Both of them gave defendant their phone, but Herrera purposefully dropped his keys on the ground to try to create a distraction. Defendant told them, " 'Don't try anything funny. I'll blast you right now.' " Herrera felt "[t]errified, confused, frustrated, angry."
Still walking behind Herrera and Carranza with the shotgun, defendant hurried them along the narrow path down the right side of the house, down some steps, and up a set of stairs that led to a deck off the back of the house. He directed them to enter the house through the backdoor on the deck. Once inside, Herrera and Carranza could see that boxes of packed belongings had been rifled through.
Still pointing the shotgun at them, defendant directed them into a backroom and ordered them to empty their pockets. Carranza turned over his keys, but Herrera dropped his wallet on the floor and then kicked it out of sight when defendant was not looking. Defendant ordered Herrera to sit and Carranza to tie him up. Carranza began to sweat profusely and hyperventilate, so defendant gave him a paper bag to breathe into. Carranza then loosely tied Herrera's hands behind his back with an extension cord.
Defendant ordered Carranza into the living room, where he told him to sit in a recliner, bound his hands behind him, and tied a sweatshirt over his head. Defendant left the room, and Carranza was immediately able to free his hands from the restraints and remove the sweatshirt.
Meanwhile, Herrera had also escaped his bindings. He got up to listen to what defendant was doing to Carranza, but he heard defendant returning so he ran back to his seat and returned his hands to the bindings. Defendant came back into the room still carrying the shotgun, retied Herrera's hand, and left the room. Herrera again escaped his bindings, and got up to listen for defendant. This pattern repeated about six times.
Eventually, Herrera made his way into the living room, where he saw Carranza sitting in a recliner with his hands tied behind his back and a towel covering his face. Herrera heard defendant coming, so he returned to his chair in the backroom and put his hands back in the bindings. Defendant came in and asked, " 'Where's all the drugs and money?' " Herrera told him he had the wrong house. At one point, Herrera asked defendant if he would leave Herrera's guns at the house since he was only after drugs and money. Defendant said he would put the guns inside the car and leave it at the DMV and then left the room.
Eventually, Herrera communicated with Carranza to run out the back door. When they could hear defendant rifling through the rooms upstairs, they made a break for it. As they passed through the kitchen, Herrera grabbed his rifle, which defendant had apparently placed on the kitchen counter.
They ran out of the house, jumped over the deck railing to the ground, and around to the street in front of the house, where they flagged down a passer-by who called the police. Looking back towards the house, they could see defendant carrying items out of the house and loading them into Carranza's car. Defendant got in the car just as a police car approached the house in response to a report of a robbery in progress. He sped away with the police in pursuit. After a high-speed chase, defendant eventually came to a stop when he crashed Carranza's car into a brick wall. He was arrested after he got out of the car and attempted to flee on foot.
The Proceedings Below
Defendant was charged with the following eight felonies: kidnapping to commit robbery (counts 1 and 2); first degree robbery (counts 3 and 4); first degree residential burglary (count 5); assault with a firearm (counts 6 and 7); and possession of a firearm by a felon with one prior (count 8). As to counts 1 through 4, 6, and 7, it was alleged defendant personally used a firearm. (Pen. Code, §§ 12022.53, subd. (b) [counts 1 through 4], 12022.5, subd. (a) [counts 6 and 7].) It was further alleged defendant had two prior strikes and a prior prison term.
All statutory references are to the Penal Code.
Defendant was tried before a jury in September 2016. After two-and-a-half hours of deliberation, the jury found him guilty on all counts and found the weapons allegations to be true. The prosecutor dismissed one of the prior strike allegations, and in a trial on the remaining strike and prison prior allegations, the jury found both allegations to be true.
Defendant was sentenced to 32 years in state prison, followed by an indeterminate term of life with possibility of parole after 28 years, calculated as follows:
Counts 1 and 2: life in prison with eligibility for parole after seven years, doubled to 14 years due to the strike, plus 10 years consecutive for the firearm enhancement, plus one year (stayed) for the prior prison term;
Counts 3 and 4: consecutive one year, four months (one-third the midterm), doubled to two years, eight months due to the strike, plus 10 years consecutive for the firearm enhancement; stayed pursuant to section 654;
Count 5: consecutive upper term of six years, doubled to 12 years due to the strike, plus one year (stayed) for the prior prison term;
Counts 6 and 7: consecutive one year (one-third the midterm), doubled to two years due to the strike, plus one year, four months (one-third the midterm) for the firearm enhancement; stayed pursuant to section 654;
Count 8: concurrent upper term of three years, doubled to six years due to the strike.
Defendant filed a timely notice of appeal.
DISCUSSION
Substantial Evidence Supports the Convictions for Kidnapping to Commit Robbery
In his first argument, defendant challenges the sufficiency of the evidence to support the jury's verdict finding him guilty of two counts of kidnapping to commit robbery in violation of section 209, subdivision (b)(1) (counts 1 and 2). "The test on appeal for determining if substantial evidence supports a conviction is whether ' "a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt." ' [Citation.] In making this determination, we " 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Rayford (1994) 9 Cal.4th 1, 23 (Rayford).) Applying that standard here, we conclude there was ample evidence from which the jury could find defendant guilty of kidnapping to commit robbery.
Section 209, subdivision (b)(1) provides for life in prison with the possibility of parole for aggravated kidnapping, or kidnapping to commit robbery or certain sex offenses. Aggravated kidnapping requires proof that "the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying [robbery]." (§ 209, subd. (b)(2).) Thus, the asportation element of aggravated kidnapping requires movement of the victim that: (1) is more than merely incidental to the underlying crime, and (2) increases the risk of physical or psychological harm to the victim beyond that inherent in the underlying crime. (People v. Nguyen (2000) 22 Cal.4th 872, 885-886; People v. Martinez (1999) 20 Cal.4th 225, 232-233; Rayford, supra, 9 Cal.4th at p. 12; People v. Daniels (1969) 71 Cal.2d 1119, 1139 (Daniels); People v. Shadden (2001) 93 Cal.App.4th 164, 168.)
As to the first element—whether the movement is more than merely incidental to the crime of robbery—"the jury considers the scope and nature of the movement, which includes the actual distance a victim is moved, although there is no minimum number of feet the defendant must move the victim. The context of the environment in which the movement occurred must also be considered." (Rayford, supra, 9 Cal.4th at pp. 3, fn. 3, 12; accord, People v. Dominguez (2006) 39 Cal.4th 1141, 1151-1152 (Dominguez); People v. Salazar (1995) 33 Cal.App.4th 341, 346-347 ["Although actual distance is a factor for consideration, it is not conclusive. [Citations.] Instead, the approach must focus on the 'context of the environment in which the movement occurred.' "].) If the movement changes the victim's environment, it does not have to be a great distance to be substantial. (People v. Shadden, supra, 93 Cal.App.4th at p. 169.)
The factors pertinent to the second element of asportation—whether the movement subjects the victim to an increased risk of harm above and beyond that inherent in robbery—include "the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes," although the fact that these dangers do not in fact materialize does not mean that the risk of harm was not increased. (Rayford, supra, 9 Cal.4th at pp. 13-14.) Additionally, "Any determination of the increase in the risk of harm involves a comparison of the victim's physical location before and after the asportation." (People v. Salazar, supra, 33 Cal.App.4th at p. 348.)
In Dominguez, supra, 39 Cal.4th 1141, our Supreme Court summarized the controlling principles this way:
"The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. [Citation.] We have articulated various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes. . . .
"Measured distance . . . is a relevant factor, but one that must be considered in context, including the nature of the crime and its environment. In some cases a shorter distance may suffice in the presence of other factors, while in others a longer distance, in the absence of other circumstances, may be found insufficient. For example, moving robbery victims between six and 30 feet within their home or apartment [citation] or 15 feet from the teller area of a bank to its vault [citation] may be viewed as merely incidental to the commission of the robbery and thus insufficient to satisfy the asportation requirement of aggravated kidnapping. Yet, dragging a store clerk nine feet from the front counter of a store to a small back room for the purpose of raping her [citation] or forcibly moving a robbery victim 40 feet within a parking lot into a car [citation] might, under the circumstances, substantially increase the risk of harm to the victim and thus satisfy the asportation requirement. These examples are illustrative only; each case must be considered in the context of the totality of its circumstances.
"Robberies and sex crimes, the necessary predicates for an aggravated kidnapping (see § 209), can of course be committed in a variety of ways. To catalog all the myriad and various possible aspects of such crimes would be impossible. But . . . the applicable test under former section 208(d) is clear: for aggravated kidnapping, the victim must be forced to move a substantial distance, the movement cannot be merely incidental to the target crime, and the movement must substantially increase the risk of harm to the victim. Application of these factors in any given case will necessarily depend on the particular facts and context of the case." (Dominguez, supra, 39 Cal.4th at pp. 1152-1153.)
It is important to note that, like Dominguez, many cases speak in terms of the movement "substantially" increasing the risk of harm to the victim. This standard was first articulated in Daniels, supra, 71 Cal.2d at p. 1140 and subsequently codified in section 209. However, in 1997, the Legislature deleted the word "substantially" from section 209, subdivision (b)(2). (People v. Vines (2011) 51 Cal.4th 830, 869, fn. 20.) The Supreme Court has recognized that this amendment "modified the asportation standard by eliminating the requirement that the movement of the victim 'substantially' increase the risk of harm to the victim." (Ibid.; People v. Martinez, supra, 20 Cal.4th at p. 232, fn. 4 [aggravated kidnapping statute "does not require that the movement 'substantially' increase the risk of harm to the victim"].) Thus, the second element of asportation requires only that the movement increase the risk of harm to the victim, despite defendant's reference throughout his briefs to the outdated "substantially increase" requirement.
Turning to the facts of this case, the jury could reasonably have found defendant's movement of Herrera and Carranza was not merely incidental to the robbery. Herrera and Carranza were outside in front of the house when defendant came around from the back, armed with a shotgun. He ordered them to the back of the house, directing them down a path on the right side of the house, down some steps, and then up a set of stairs that led to the back deck. From the deck, he ordered them to enter the house through the back door. Once inside the backroom, he demanded their valuables, obtaining keys from Carranza, including the key to the car that defendant eventually used to make his getaway. Thus, defendant forced his victims at gunpoint to move from outside in front of the house where they were visible from the street to the back of house and ultimately inside, where he had an unfettered ability to rob them of their belongings.
The jury could also have reasonably found that defendant's movement of Herrera and Carranza increased the risk of harm to them. Having first encountered Herrera and Carranza in front of the house where they were visible to passers-by on the street, defendant pointed a cocked shotgun at them and ordered them to the back of the house, where they would be out of view and not likely to be detected. As they were walking down the path alongside the house, defendant pressed the shotgun to the back of Herrera's head and threatened to "blast" them—a threat he could easily have followed through on—if they tried anything "funny." Once inside the house, he isolated them, directing Herrera to the backroom and Carranza to the living room, keeping a shotgun trained on them except when he needed to re-tie their restraints. From this evidence, a rational person could conclude defendant's movement of his victims increased the risk of harm to them.
The primary thrust of defendant's argument to the contrary is that his movement of Herrera and Carranza was not for the purpose of robbing them, but was merely to enable him to complete the burglary. He claims that his "intent all along was to commit a burglary, not to engage in a confrontation—and that his purpose in bringing the victims inside was simply to preclude them from impeding that burglary." That is one interpretation of the evidence. But the evidence, which we must construe in favor of the judgment (Rayford, supra, 9 Cal.4th at p. 21), also supports a finding that defendant initially intended to commit a burglary but when he was interrupted by Herrera and Carranza, he saw an opportunity to obtain additional valuables by robbing them. And so rob them he did, first demanding their belongings when he forced them down the path and then again demanding their belongings once they were inside. It is irrelevant whether or not defendant intended to commit a robbery when he entered the house; the evidence showed that he did so—and did so by kidnapping his victims—when the opportunity presented itself.
Defendant also attempts to minimize the fact that he robbed Herrera and Carranza by suggesting that when he told them to empty their pockets, "this was primarily an effort to ensure that they could not threaten appellant with anything in their possession or call the police rather than an effort to obtain more property." Again, the evidence supports a finding to the contrary, that defendant seized the opportunity to rob them of their valuables, demonstrated by the fact that he obtained Carranza's car key and then stole his car.
Additionally, defendant contends the distance he moved Herrera and Carranza "could not have been great. It was a house, not an office building or even a mansion. Accordingly, the distance involved here was a matter of feet—not a matter of miles, blocks or even the width of a parking lot." As discussed, however, there is no required minimum distance so long as the movement is substantial. (Dominguez, supra, 39 Cal.4th at p. 1152.) A jury could reasonably find that defendant's movement of his victims from the front of the house (where they were visible to the public), down the side path, down some steps, up a set of stairs, onto the back deck, and into the house (where they were out of sight) was substantial, given the totality of the circumstances.
Dominguez, supra, 39 Cal.4th at p. 1141, is instructive. There, defendant moved the victim 25 feet from a public road to an orchard, 10 to 12 feet below the road level, which "tended to obscure [the] defendant's crime from any onlookers." (Id. at pp. 1153-1154.) According to the court, this movement was more than incidental to the crime (in that case, rape rather than robbery) because the movement "changed the victim's environment from a relatively open area along side the road to a place significantly more secluded, substantially decreasing the possibility of detection, escape or rescue. This case is thus unlike the brief and trivial movements of the robbery victims around a room, as in Daniels, supra, 71 Cal.2d 1119, . . . movements found to be merely incidental to commission of the offense. [The] defendant's movement of the victim down an embankment and into an orchard cannot be said to have been merely incidental to the rape. [¶] . . . [¶] . . . . Moreover, a reasonable jury could have concluded that the place to which the victim was moved was in fact one obscured from public view." (Ibid.) Likewise here.
Defendant relies on a series of cases that he contends support his claim there was insufficient asportation here. The cases are all distinguishable.
In Daniels, supra, 71 Cal.2d 1119, defendants robbed and sexually assaulted several women after knocking on the doors of their residences and forcing their way in at gunpoint when the women answered the door. Once inside, defendants moved the women from one room to another or across a room. (Id. at pp. 1123-1125.) They were convicted of aggravated kidnapping, among other things, but the Supreme Court reversed, concluding there was insufficient asportation of the victims. (Id. at pp. 1122, 1139-1140.) Defendant argues that "[a]s in Daniels, where the defendants accosted each victim at the doorway of her residence, the victims' movement in this case from outside the house to inside was minimal." Unlike in Daniels, however, defendant here forced Herrera and Carranza from outside in front of the house, down a path alongside the house, down some steps, up a set of stairs to the back deck, into the house, and into separate rooms, substantially more movement than in Daniels.
In People v. Timmons (1971) 4 Cal.3d 411, defendant entered the victims' car, told them it was a holdup, and ordered one of them to drive. After five blocks, he told the driver to stop and got out of the car with the victims' money. (Id. at pp. 413-414.) The Supreme Court reversed defendant's aggravated kidnapping convictions, holding that the "reasonably brief movement" for the purpose of facilitating the robbery was incidental to the commission of the robbery and that while the movement of the car increased the risk of harm to the victims, it did not substantially increase the risk, since the victims drove their own car in broad daylight, there was no police pursuit, high-speed chase, or reckless driving, and defendant was not armed. (Id. at pp. 414-415.) According to defendant, the facts of this case are "even less compelling" because the movement here was "even more minimal than in Timmons" and while defendant here had a gun, "the manner in which appellant wielded it imposed no greater risk of harm than would be posed in any armed robbery . . . ." First, the standard is not whether the asportation presented a greater risk than in another armed robbery; the standard is whether it increased the risk of harm to the victims beyond that inherent in robbery. (Rayford, supra, 9 Cal.4th at p. 13.) Second, unlike in Timmons, defendant was armed with a cocked shotgun, and he walked behind Herrera touching it to the back of his head and threatening to "blast" them if they tried anything. Third, again unlike in Timmons, defendant moved the two men from a location where they were visible to passers-by to a location where they would not be detected.
In People v. Williams (1970) 2 Cal.3d 894, defendant pulled into a service station and asked the attendant if they sold car batteries; he responded that they did and escorted defendant inside the station. Defendant pulled out a gun, demanded money, and then locked the attendant in the bathroom. A few minutes later, defendant moved the attendant to the office. A customer entered the station, and defendant took the customer to the " 'lube room' " and took his wallet. Defendant and the customer walked to the office, and the attendant and customer helped carry tires and a tool box out to the street and put them by defendant's car. Defendant then ordered them to leave the station. (Id. at pp. 899-900.) The Supreme Court reversed defendant's aggravated kidnapping conviction, determining that the movements of the attendant on gas station premises were "solely to facilitate the commission of the crime of robbery" and were thus incidental to the robbery, and did not substantially increase the risk of harm to the victim above that necessarily present in the robbery itself. (Id. at p. 902.) But while defendant in Williams merely moved the victims around the premises to rob them, that was not the case here.
In People v. Hoard (2002) 103 Cal.App.4th 599, defendant entered a jewelry store, brandished a gun, and ordered the sales women into the office at the back of the store. He bound and gagged them, and then returned to the front of the store to steal the jewelry from the cases. When one of the women tried to call the police, defendant returned to the office, threatened the women, ripped the phone out of the wall, and left the store. (Id. at p. 602.) The Court of Appeal agreed with defendant that his brief movement of the women from the front of the store to the back office was incidental to the robbery and did not substantially increase the risk of harm. (Id. at p. 607.) This result is consistent with authorities recognizing that mere movement within the premises is insufficient asportation for aggravated kidnapping. (See, e.g., People v. Williams, supra, 2 Cal.3d at p. 902; Daniels, supra, 71 Cal.2d 1119.) But, again, that is not what happened here.
The Trial Court Erred in Failing to Stay the Sentence on Count 8 (Felon in Possession of a Firearm)
As noted, the jury found defendant guilty on count 8, felon in possession of a firearm in violation of section 29800, subdivision (a). At the sentencing hearing, the court announced the following tentative sentence on that count: "As to Count 8, felon in possession of a firearm. That's not a strike. The triad is 16 months, 2 years, 3 years. And I'm, as previously mentioned, selecting the upper term of 3 years. That would be doubled, so the term for that is six years. I would tentatively order that that be served concurrently. It's part and parcel of the same event, same course of conduct, same occasion, same operative facts." Defendant contends the trial court erred in failing to stay the sentence pursuant to section 654.
Section 654, subdivision (a) provides: "An 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." "[W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence." (People v. Alford (2010) 180 Cal.App.4th 1463, 1466; accord, People v. Jones (2012) 54 Cal.4th 350, 353.) In light of this, the trial court erred in not staying the sentence on count 8.
Section 29800, subdivision (a)(1) makes it a felony for an individual previously convicted of a felony to own, purchase, receive, or have in his or her possession or control a firearm. In order to justify the imposition of sentence for a violation of section 29800, subdivision (a), the prosecutor must prove that defendant's possession of the firearm was antecedent to the commission of the other crimes. (People v. Jones (2002) 103 Cal.App.4th 1139, 1144-1146; People v. Blake (1998) 68 Cal.App.4th 509, 512.) As explained in People v. Jones: " ' "Whether a violation of [former] section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense." ' [Citations.] [¶] It is clear that multiple punishment is improper where the evidence 'demonstrates at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense . . . .' [citation.]" (People v. Jones, supra, at pp. 1143-1144, fn. omitted.)
Prior to 2010, section 29800 was numbered section 12021. --------
Here, there was no evidence defendant possessed a weapon prior to entering Herrera's house. To the contrary, Herrera testified that he owned the shotgun defendant was carrying and that it had been next to his bed. Defendant had also moved a second weapon, the rifle Herrera grabbed off the kitchen counter as he fled the house, during the burglary, but defendant only possessed it as an item he temporarily acquired during the burglary. There was no evidence supporting an inference that defendant possessed either firearm prior to the burglary.
The trial court's own statement at sentencing confirms that count 8 fell within the scope of section 654. When sentencing defendant on that count, the court stated: "It's part and parcel of the same event, same course of conduct, same occasion, same operative facts." These findings are the precise findings consistent with a determination that section 654 precludes separate punishment on the gun possession charge. (See, e.g., People v. Bui (2011) 192 Cal.App.4th 1002, 1015 [section 654 prohibited multiple punishments because offenses were "same occasion and same set of operative facts"].) Accordingly, execution of the sentence on count 8 should have been stayed.
The Trial Court Erred in Staying Rather Than Imposing or Striking the Sentence Enhancement for Defendant's Prior Prison Term
The jury found true an allegation that defendant served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court stayed imposition of the one-year term for that enhancement. Defendant contends this was error, arguing the court must either impose or strike the sentence enhancement. As the People concede, defendant is correct: the trial court must either strike or impose sentence for an enhancement under section 667.5, subdivision (b). (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.)
The Matter Must Be Remanded for Resentencing to Permit the Trial Court to Exercise Its Discretion to Strike the Firearm Enhancements Imposed
When defendant was sentenced in December 2016, section 12022.53, subdivision (b) provided a 10-year enhancement for use of a firearm during certain enumerated felonies, including kidnapping for purposes of robbery, and section 12022.5, subdivision (a)(1) provided for a three-, four-, or 10-year enhancement for the use of a firearm during felonies not specified in section 12022.53, subdivision (b). Both statutes expressly prohibited a court from striking a firearm allegation. (Former §§ 12022.5, subd. (c), 12022.53, subd. (h).) Accordingly, the trial court here imposed 10-year firearm enhancements on counts 1 and 2, and imposed but stayed terms of one year, four months (one-third the midterm) for the firearm enhancements on counts 6 and 7.
On October 11, 2017, the Governor of California signed Senate Bill 620, which amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h) to grant the trial court discretion to "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).) Defendant contends that the amendments, which became effective January 1, 2018, apply retroactively. He is correct.
As a general rule, amendments to the Penal Code do not apply retroactively. (§ 3.) An exception exists, however, for amendments that reduce the punishment for a specific crime. In what is known as Estrada retroactivity, courts presume that the Legislature intended those amendments to apply retroactively to all non-final judgments. (People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745.) Estrada retroactivity applies to sentence enhancements. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 792 [Estrada rule applies to enhancement under section 12022.6]; People v. Vinson (2011) 193 Cal.App.4th 1190 [Estrada rule applies to amended section 666]; People v. Figueroa (1993) 20 Cal.App.4th 65 [Estrada rule applies to drug enhancement under section 11353.6].)
The amendments to sections 12022.5, subdivision (c) and 12022.53, subdivision (h) went into effect January 1, 2018, before defendant's case was final. (People v. Nasalga, supra, 12 Cal.4th 784, 792; In re Estrada, supra, 63 Cal.2d 740, 744 ["The key date is the date of final judgment."]; People v. Babylon (1985) 39 Cal.3d 719, 727 [defendants were entitled to benefits of amendment enacted while appeal was pending]; People v. Camba (1996) 50 Cal.App.4th 857, 865-866.) And where, as here, there is no savings clause, defendant is entitled to the benefit of the amendment. (People v. Babylon, supra, at p. 727.)
Defendant urges us to remand this case to allow the trial court to exercise its discretion with regard to sentencing on the firearm enhancements. The People, who agree the amendments apply retroactively, submit that remand is unnecessary because the record shows the trial court would not have dismissed or stricken the firearms enhancement even if it had had the discretion to do so. We do not view the record to be so unambiguous that we can say with certainty the court would not have exercised its discretion to strike or dismiss the enhancements. The matter must thus be remanded for resentencing on the firearm enhancements in light of the amendments. As the Supreme Court stated in People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8, "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.]"
DISPOSITION
The matter is remanded for resentencing consistent with this opinion. The clerk is directed to forward an amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Miller, J.