Opinion
F075542
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CHACON, Defendant and Appellant.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF142972A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
Appellant Anthony Chacon appeals from his sentence following a remand for resentencing by this court.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On our own motion, we take judicial notice of the entire appellate record in People v. Chacon (Oct. 21, 2016, F069786) [nonpub. opn.].
In June 2014, a jury convicted appellant as follows: first degree drive-by murder (Pen. Code, §§ 187, 189/count 1); attempted murder (§§ 187, 664/count 2); and shooting at an inhabited dwelling (§ 246/count 3).
All statutory references are to the Penal Code. --------
As to count 1, the jury found that appellant committed the murder by means of a drive-by shooting and to further the activities of a criminal street gang (§ 190.2, subds. (a)(21) & (22)); that appellant personally discharged a firearm causing death (§ 12022.53, subd. (d)); that appellant inflicted great bodily injury or death by shooting a firearm from a motor vehicle (§ 12022.55); and that the murder was committed for the benefit of, at the direction of, or in association with any criminal street gang as set forth in section 186.22, subdivision (b).
As to count 2, the jury found appellant personally discharged a firearm causing death under section 12022.53, subdivision (c), and that he committed the crime for the benefit of, at the direction of, or in association with any criminal street gang as set forth in section 186.22, subdivision (b).
As to count 3, the jury found appellant committed the crime for the benefit of, at the direction of, or in association with any criminal street gang as set forth in section 186.22, subdivision (b).
The trial court sentenced appellant as follows: life without the possibility of parole, plus 25 years to life, on count 1, plus 10 years stayed under California Rules of Court, rule 4.447; 15 years to life, plus 20 years on count 2, to be served consecutive to count 1; and 15 years to life on count 3, stayed under section 654.
Appellant appealed his conviction. This court remanded the matter to the trial court with directions to resentence appellant on count 2, and in all other respects affirmed appellant's conviction. This court reasoned the 15 years to life sentence on count 2 was improper because the jury convicted appellant of attempted murder, and pursuant to section 664, the sentence for attempted murder is five, seven or nine years unless it has been pled, and the jury found the attempted murder was willful, deliberate and premeditated. Since the jury did not so find, the sentence imposed on count 2 was unauthorized.
The Kern County Superior Court resentenced appellant on April 26, 2017. After finding no circumstances in mitigation and several circumstances in aggravation, the court sentenced appellant on count 2 to the upper term of nine years, plus 10 years for the section 186.22, subdivision (b)(1)(C) enhancement, plus 20 years for the section 12022.53, subdivision (c) enhancement, to be served consecutive to count 1. The balance of the sentence and fees imposed remained unchanged.
Appellant filed a notice of appeal from resentencing on April 26, 2017. Appointed counsel filed a brief on July 31, 2017, asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to appellant advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. This court received no communication from appellant.
After review of the record, this court issued an order directing appellant to file a supplemental letter brief addressing whether the pending matter should be remanded to the trial court to exercise its newfound discretion pursuant to section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.) to strike the firearm enhancement(s) (Stats. 2017, ch. 682, § 2). The order granted respondent 15 days from the date of the filing of the supplemental brief to file a response. On January 17, 2018, appointed counsel filed a supplemental brief asking that the matter be remanded for the trial court to exercise its discretion pursuant to section 12022.53, subdivision (h). Respondent did not file a response.
At the time appellant was charged, convicted, and sentenced, subdivision (h) of section 12022.53 provided: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." However, Senate Bill No. 620, which became effective on January 1, 2018, amended section 12022.53, subdivision (h) to delete the prohibition on striking a section 12022.53 enhancement. As amended, subdivision (h) of section 12022.53 now provides: "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." This amendment applies retroactively to appellant, whose judgment of conviction was not final when the legislation became effective. (See In re Estrada (1965) 63 Cal.2d 740; People v. Francis (1969) 71 Cal.2d 66.)
DISPOSITION
The matter is remanded to the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), whether to strike the section 12022.53 enhancement. In all other respects, the judgment is affirmed.