Opinion
B271587
03-01-2018
THE PEOPLE, Plaintiff and Respondent, v. KENDRICK D. CHESTER, Defendant and Appellant.
Lori Nakaoka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Nicholas J. Webster, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA100648) APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Reversed in part with directions and affirmed in part. Lori Nakaoka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted appellant Kendrick D. Chester of robbery, in violation of Penal Code section 211, and possession of a firearm by a felon, in violation of section 422, subdivision (a). The jury also found true an allegation pursuant to section 12022.53, subdivision (b), that Chester personally used a firearm in the robbery. The trial court sentenced Chester to 15 years in prison, including a 10-year enhancement as a result of the firearm allegation.
Unless otherwise specified, subsequent statutory references are to the Penal Code.
On September 28, 2017, we filed an opinion in which we affirmed the judgment. On October 11, 2017, before our opinion in Chester's case became final, the Governor signed into law Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620), which amends section 12022.53 to give trial courts the discretion to strike sentencing enhancements pursuant to that section in the interest of justice. (See § 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) The amendment became effective on January 1, 2018. (See Cal. Const., art. IV, § 8, subd. (c).)
On January 10, 2018, the California Supreme Court granted Chester's petition for review and transferred this case to us with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 620. We have done so, and we agree that Chester is entitled to a new sentencing hearing so that the trial court may decide whether to strike Chester's firearm enhancement. In all other respects, we affirm the trial court's judgment.
FACTS AND PROCEEDINGS BELOW
An information charged Chester with two counts—robbery, in violation of section 211 (count 1), and possession of a firearm by a felon, in violation of section 29800, subdivision (a)(1) (count 2)— related to events that occurred in the very early hours of October 24, 2015. The information also charged Chester with three additional counts pertaining to separate events in the weeks prior. These latter charges included: one count of criminal threats, in violation of section 422, subdivision (a) (count 3); one count of assault with a semi-automatic firearm, in violation of section 245, subdivision (b) (count 4); and an additional count of possession of a firearm by a felon, in violation of section 29800, subdivision (a)(1) (count 5).
The information alleged a sixth count of criminal threats, but the prosecution dropped this charge prior to trial.
A jury found Chester guilty of counts 1 and 2, for robbery and possession of a firearm by a felon, respectively. The jury also found true an allegation pursuant to section 12022.53, subdivision (b), that Chester personally used a firearm in the robbery. The jury could not reach a unanimous verdict on the other three counts. The trial court declared a mistrial on these counts and ultimately dismissed them on the People's motion. The court sentenced Chester to a total of 15 years in prison. This consisted of the high term of five years for robbery, plus an additional 10 years pursuant to section 12022.53, subdivision (b), for personal use of a handgun. The court sentenced Chester to three years for possession of a firearm by a felon in count 2, but stayed the sentence pursuant to section 654.
Although the jury convicted Chester only of the charges pertaining to October 24, 2015, the facts regarding the other three counts are relevant to issues Chester has raised on appeal. Consequently, the following description of the evidence introduced at trial includes testimony pertaining to counts that the trial court ultimately dismissed.
A. The Robbery of D.F.
D.F. was returning to his home in Long Beach at around 12:30 a.m. on October 24, 2015 when he noticed a car blocking the driveway. He got out of the car to investigate, and noticed a man riding toward him on a bicycle. The man put a mask over his head, stopped at the back of D.F.'s car, and asked for money. D.F. noticed the man was holding a drill with no drill bit.
D.F. felt afraid and got back into his car. The man reached into the open driver's side window with a gun and pointed it at D.F.'s chest. The man again asked D.F. for money, saying that he knew D.F. must have money because he was driving an expensive car. D.F. looked in the center console of his car and found two scratch-off lottery tickets, one worth $15, the other worth a free lottery ticket. D.F. handed over the tickets, and the man took them and left. D.F. then called 911. He told the operator that a Black man, approximately 22 years old, riding a BMX bicycle, and wearing a dark sweater with a Pittsburgh Penguins hockey logo, a baseball cap, and a mask, had robbed him of two lottery tickets.
Within a minute or two, Tom Diaz, a police officer with the Long Beach Police Department, responded to a dispatch call regarding the robbery. Near a donut shop on Pacific Coast Highway, a few blocks away from where the robbery had taken place, Diaz saw Chester, who is Black, and who was wearing dark clothing and sitting on a BMX-style bike. Diaz pulled into a nearby driveway and ordered Chester to hold his hands up. Chester rode away on his bicycle and Diaz pursued, eventually catching Chester when Chester crashed his bicycle in the parking lot of a nearby liquor store. During the pursuit, Diaz heard a heavy object fall to the ground near Chester, but he could not see what it was.
Diaz subdued Chester with a carotid restraint, or choke-hold, and rolled him over, discovering a semi-automatic handgun near Chester's waist. After he handcuffed Chester, Diaz went back to search for the object that had fallen during the chase and found a black cordless drill nearby.
Another Long Beach police officer, Kevin Skeen, who was also on the scene and assisted Diaz in subduing Chester, noticed the handgun on the ground after Diaz handcuffed Chester. Skeen also found a baseball cap with a black cotton cloth stuffed inside it on the ground underneath Chester. The cloth had eye-holes cut out of it so that it could be worn as a mask. Skeen searched Chester's pockets and discovered two scratch-off lottery tickets, one worth $15, and the other good for a free ticket.
Approximately 30 minutes after the robbery, officers transported D.F. to the liquor store to identify Chester. D.F. saw Chester from the rear seat of the patrol car at a distance of approximately 30 feet. Because D.F. had seen his assailant only with a mask on, he was uncertain whether Chester was the person who robbed him. D.F. thought, however, that Chester had the same height and complexion as his attacker. The police officers put the hat and cloth mask on Chester, and at that point, D.F. was positive Chester was his assailant. In court, D.F. identified Chester, along with the hat, mask, bicycle, gun, and sweater Chester wore. D.F. also confirmed that the lottery tickets the police recovered were the same tickets stolen in the robbery. D.F. acknowledged that Chester appeared to be in his 30's or early 40's, not approximately 22 years old as he stated to the 911 operator.
Chester testified on his own behalf. He claimed that he never interacted with D.F., and did not rob him. According to Chester, he was in the parking lot of the liquor store with friends when four or five police cars drove up. His friends scattered, and an officer pointed his gun at Chester and ordered him to put his hands up. Other officers grabbed his arms, and when Chester resisted, they choked him until he passed out. Chester denied that he possessed the lottery tickets, the drill, the handgun, the baseball cap, the mask, and the bicycle that the police officers testified they found in his possession or near him.
B. Donut Shop Incident
S.K., the owner of a Long Beach donut shop, testified that Chester was a regular at his store. According to S.K., a few days before the robbery, Chester entered the store, demanded that S.K. sell him donuts at a lower price, and asked other customers for money. S.K. argued with Chester, and Chester told him that if he ever saw S.K. outside the store, he would kill him. Chester told S.K. that he had a gun and was not joking. S.K. called the police, but the police never arrived, and eventually Chester left. Another employee of the donut shop, S.S., testified that a Black man who she could not identify came into the store and threatened S.K., and that S.K. called the police. S.S. saw the man put a sock on the counter of the shop, and it appeared that there was a gun inside the sock.
Defense counsel played for the jury surveillance video footage of Chester in the store on the day in question. Chester also testified about the events. He said that on the day in question, he was 10 cents short of the price of a donut and asked S.K. to let him pay the difference in price later. S.K. refused, so Chester asked another customer for a dime. S.K. became angry and told Chester to stop bothering his customers. According to Chester, S.K. told him to get out of the shop and threatened to shoot him.
C. Football Game Assault
C.B. testified that he was a referee of a youth football game on October 4, 2015, about three weeks before Chester's arrest. At halftime, after the referees had made some controversial calls in the game, Chester approached C.B. and another referee and said, "You all refs better call this game right. That's on Crip." After the game, Chester again approached C.B. Chester reached into the front pocket of his hoodie and pulled out a gun wrapped in a plastic bag. Chester pointed the gun at C.B.'s torso and said, "What's up now, ref? This is my neighborhood." According to C.B., the gun was a semi-automatic pistol, and Chester pointed it at C.B.'s stomach from about five feet away. C.B. went back to the field and told the athletic director, who called the police. C.B. later identified Chester from a six-pack lineup as the man who had threatened him, and Chester also identified a picture of the gun recovered from Chester's arrest as the gun used to threaten him.
The coach of the football team for which Chester's son played testified that he witnessed Chester confronting C.B. both at halftime and after the game. According to the coach, Chester pulled out an iPad, rather than a gun.
Chester denied that he brought a gun to the football game and that he threatened C.B. According to Chester, after the game, he told C.B. that it had been a good game even though C.B. had made a bad call. C.B. then challenged Chester to fight. Chester pulled an iPad from his waistband, and C.B. ran away, shouting that Chester had a gun.
DISCUSSION
Chester raises several contentions on appeal. He contends that the trial court violated his Sixth Amendment rights by denying his requests to substitute counsel and to represent himself. Next, Chester contends that the trial court violated his Fourteenth Amendment right to a fair trial by admitting an in-court identification that was tainted by a suggestive and unreliable out-of-court identification procedure. Next, Chester contends that the trial court violated his Fourteenth Amendment right to a fair trial by denying his motion to sever the counts pertaining to the donut shop and football game from those pertaining to the robbery.
Finally, in an issue Chester raised in his petition for review in the Supreme Court, Chester contends that he is entitled to a new sentencing hearing so that the trial court may decide whether to exercise its discretion and strike the firearm enhancement pursuant to Senate Bill No. 620. We agree that Chester is entitled to a new sentencing hearing in light of Senate Bill No. 620. Otherwise, we reject Chester's arguments and affirm the judgment.
I. DENIAL OF CHESTER'S REQUEST TO SUBSTITUTE COUNSEL OR TO REPRESENT HIMSELF
Chester contends that the trial court violated his constitutional rights by denying his requests, made on the eve of trial, to substitute his retained counsel with another attorney who had agreed to represent him, or to represent himself. We disagree. The trial court did not apply an incorrect standard or err in its finding that Chester's requests were untimely.
A. Relevant Proceedings
On two consecutive days just before trial, Chester requested to replace his attorney with new retained counsel or to represent himself. The first request occurred just before jury selection began, and the second took place after jury selection had already started. The trial court denied these requests.
1. September 16 proceedings
Just before jury selection began, Chester spoke out in open court, just after the trial court had called the courtroom to order: "Are you saying that the trust that you're now administering is the Kendrick Chester trust?" The court admonished Chester not to disrupt the proceedings, but Chester continued, saying, "I'm not a fictitious entity. I'm a living human being with a soul. [My attorney] failed to fully disclose to me that he and the prosecutor are involved." At this point, the court said, "Looks like there's a Marsden motion," and asked the prosecutor to leave the courtroom during the hearing. (Italics added.)
People v. Marsden (1970) 2 Cal.3d 118.
In the hearing, Chester alleged that his attorney was colluding with the prosecutor and denied that he was Kendrick Chester or that the court had jurisdiction over him. His attorney explained that he had encouraged Chester to accept the prosecutor's offer of a 15-year prison term, which was set to expire that day. The trial court then stated, "Marsden motion is denied." (Italics added.) Chester complained that his attorney had refused to file certain motions on his behalf, and reiterated that he did not want his attorney to represent him. The court asked, "Do you have anyone to try this case besides him? Who do you have?" Chester answered, "Myself." The court ended the Marsden hearing and invited the prosecutor to return to the courtroom.
Chester then explained that he was not ready to try the case himself, but needed additional time to file motions. He stated that he expected his attorney to have already filed a Pitchess motion and to have subpoenaed certain surveillance footage, and only found out that day that his attorney had not done so. The court told Chester that in order to proceed on a pro. per. basis, he would need to sign a document waiving his right to counsel. Chester refused to sign a waiver and refused to speak with the court about it. The court stated, "[B]ecause defendant is unwilling to even follow the basic, basic rules of procedure and courtroom protocol so the court can fairly evaluate the status to go pro[.] per[.], pro[.] per[.] is denied."
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
When court was back in session at 1:30 that afternoon, Chester's attorney informed the court that Chester had obtained new counsel to represent him. The court stated, "[I]f the attorney shows up we'll deal with it at that point." Chester decided not to attend further proceedings in the absence of his new attorney, and jury selection proceeded in his absence.
At 2:50 p.m., a new attorney appeared in court and requested to substitute in as Chester's counsel. The court asked the new attorney to come back the next morning to inform the court whether he was ready to substitute in and begin the trial. For the remainder of the afternoon, Chester's original attorney continued to represent him in jury selection. At the end of the day, the court instructed the new attorney to return the following morning and explain whether he had been retained as counsel and was ready to proceed. The court continued, "[I]f you say yes, I have no problem allowing you to sub in."
2. September 17 proceedings
The next morning, Chester's proposed substitute attorney appeared and informed the court that he was prepared to take the case through trial on a pro bono basis. He stated that he was not ready to proceed with trial immediately, however, because Chester's first attorney had not obtained a 911 tape or resolved other discovery issues. After an in-camera hearing, the trial court then found that Chester's refusal to communicate was a stalling tactic, and that no genuine conflict existed. The court denied the new attorney's request to substitute in as counsel as untimely.
Shortly thereafter, Chester's attorney informed the court that Chester wanted another Marsden hearing. The court answered, "He is not entitled to [a] Marsden motion, because [his attorney is] privately retained." (Italics added.) Chester then said, "I would like to go pro[.] per[.] for lack of . . . communication between me and my so-called lawyer." This time, Chester filled out the pro. per. waiver form. When the trial court asked Chester why he had waited so long to request to represent himself, Chester began to describe his conflicts with his attorney. At this point, the court paused the proceedings and excused the prosecutor from the courtroom. The court explained, "[Y]ou are not entitled to a Marsden motion, which is basically a request for [a] new attorney, because [your existing attorney] was privately retained by you. But I don't want [the prosecutor] to hear what you have to say because I don't want him to know potential strategy . . . about your case." (Italics added.)
Chester reiterated that he no longer wanted his attorney to represent him because his attorney had failed to file motions that Chester believed were necessary to his defense. Furthermore, Chester complained that his attorney had visited him in jail only once and did not know the details of his case. Chester's attorney responded that he had made a tactical decision not to file a Pitchess motion, and that he had investigated but could not find any additional relevant surveillance footage. The attorney also denied that he lacked familiarity with the case, that he failed to communicate sufficiently with Chester, or that he was colluding with the prosecutor.
The trial court then explained that it was willing to grant Chester's request to represent himself, but only if he could be ready to proceed with the case within four days. Chester was unwilling to proceed with the case without a longer continuance, and the court then told him that it would continue with jury selection, and that he could make a final decision at the end of the day. Later in the afternoon, the court asked Chester for a final decision, and Chester replied that he would need at least 30 days to obtain evidence. The court then denied the request, finding that under the circumstances, the request was untimely.
B. The Denial of the Requests for Substitute Counsel
The standards for responding to a criminal defendant's request to replace his attorney depend on whether he is represented by retained or appointed counsel. Although the Sixth Amendment guarantees criminal defendants who cannot afford to hire an attorney the right to representation by appointed counsel, this "does not include the right to demand appointment of more than one counsel." (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1 (Ortiz).) When a defendant requests to replace his appointed attorney, the trial court must hold a Marsden hearing to determine if the defendant has "show[n] good cause for replacing appointed counsel." (People v. Lara (2001) 86 Cal.App.4th 139, 151 (Lara).) The court should consider whether the defendant has shown that his " 'right to the assistance of counsel would be substantially impaired if his request [to substitute counsel] was denied.' " (Ibid.)
When a defendant retains his own counsel, he has greater freedom to replace his attorney. "In contrast to situations involving appointed counsel, a defendant may discharge his retained counsel of choice at any time with or without cause." (Lara, supra, 86 Cal.App.4th at p. 152.) The right to discharge retained counsel is not absolute, however. "The trial court, in its discretion, may deny such a motion if discharge will result in 'significant prejudice' to the defendant [citation], or if it is not timely, i.e., if it will result in 'disruption of the orderly processes of justice.' " (Ortiz, supra, 51 Cal.3d at p. 983.)
Chester contends that the trial court erred by applying the Marsden standard even though he had retained his own counsel. Chester also argues that, even if the court did apply the correct standard, it erred by finding that Chester's request was untimely. We are not persuaded by either of these contentions.
Chester is correct that, during the proceedings that took place on September 16, the trial court erroneously described Chester's request to replace his attorney as a "Marsden motion." (Italics added.) Marsden motions and hearings are appropriate only when a defendant is represented by appointed counsel. (See Ortiz, supra, 51 Cal.3d at p. 986.) It is clear from the record, however, that the court applied the correct standard in deciding Chester's request. During proceedings on September 16, the court asked Chester, "Do you have anyone to try this case besides him? Who do you have?" This suggested that, if Chester had retained substitute counsel who was prepared to try the case, the court was prepared to allow the substitution. This was confirmed when Chester's proposed substitute attorney appeared in court during the afternoon of September 16. The court stated explicitly that it would condition the substitution only on the new attorney's preparedness to proceed, not on a showing of good cause. The court stated that if the new attorney said that he was ready to proceed with trial, "I have no problem allowing you to sub in."
During the proceedings on September 17, the court made it even more clear that it was not applying the standard applicable to appointed counsel. On two occasions, the court stated that, because Chester had retained counsel, he was "not entitled to [a] Marsden motion." (Italics added.) Instead, the court conditioned the substitution of counsel only on the attorney's preparedness.
Chester argues that the court erred by holding closed hearings, in which the prosecutor was excluded from the courtroom, regarding the substitution of counsel. Although closed hearings are necessary in Marsden proceedings to allow the defendant to discuss trial strategy without allowing the prosecution to gain an unfair advantage (People v. Barnett (1998) 17 Cal.4th 1044, 1094), they serve no apparent function when a defendant seeks to substitute retained counsel. We disagree that the use of this procedure showed that the trial court applied an incorrect standard, however. The court excluded the prosecutor from the courtroom not because it intended to apply an incorrect standard, but because it was clear that Chester intended to discuss his attorney's trial strategy. Although it was not a Marsden hearing, excluding the prosecutor was appropriate to protect Chester's right to a fair trial.
Regardless of the court's initial language referring to a Marsden hearing or motion, the record shows that when the court made its decision regarding Chester's representation, it applied the standard appropriate for substitution of retained counsel.
Nor do we agree with Chester that the court abused its discretion by denying the motion to substitute counsel on grounds of timeliness. Chester argues that, although he did not request substitute counsel until the day of the trial, his request was nevertheless timely because he only learned that day of his attorney's failure to file a Pitchess motion or to seek additional surveillance. He contends that his case is similar to Lara, supra, 86 Cal.App.4th at pp. 162-163, in which the court held that the defendant's motion to substitute counsel on the eve of trial was timely because the defendant had only learned of his attorney's deficiencies on the day of trial.
But there are crucial differences between this case and Lara. In Lara, the trial court incorrectly applied the Marsden standard to the defendant's request to discharge his retained counsel. In rejecting the defendant's request under this standard, the trial court made no finding regarding the timeliness of the request. (See Lara, supra, 86 Cal.App.4th at p. 162.) Because the trial court did not apply the correct standard and did not gather and consider all material facts, the Court of Appeal did not defer to the trial court's findings. (See id. at pp. 165-166.) Here, by contrast, the court applied the correct standard and explicitly found Chester's request untimely. We may therefore reverse the trial court only if its decision was an abuse of discretion. (See People v. Dowdell (2014) 227 Cal.App.4th 1388, 1411.)
In Lara, the court noted that "there is no evidence to suggest that appellant raised such complaints in an effort to improperly delay the proceedings." (Lara, supra, 86 Cal.App.4th at p. 162.) In this case, however, Chester made a series of bizarre statements that he was "not a fictitious entity" and that the court lacked authority to administer his case. Furthermore, his complaints about his attorney's performance appeared to be less substantial than the defendant's in Lara. Chester believed that his attorney was scheming with the prosecution apparently on the basis that he did not like the prosecutor's offered plea agreement. He was annoyed that his attorney had failed to obtain surveillance footage that his attorney stated did not exist. And Chester admitted that his attorney spoke with him after each pretrial hearing. In light of this evidence, we cannot conclude that the trial court erred by finding that Chester request was untimely.
To grant Chester's request to replace his attorney would have required a delay in his trial, at a point when both sides had already invested a significant amount of time preparing and when jury selection was about to begin. We do not agree that the trial court abused its discretion by denying the request on the ground that it would "result in 'disruption of the orderly processes of justice.' " (Ortiz, supra, 51 Cal.3d at p. 983.)
C. Denial of the Requests for Self-Representation
In Faretta v. California (1975) 422 U.S. 806, 820-821 (Faretta), the United States Supreme Court established that a criminal defendant has a Sixth Amendment right to represent himself at trial. "A trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial." (People v. Welch (1999) 20 Cal.4th 701, 729.) A violation of this right is reversible per se. (People v. Valdez (2004) 32 Cal.4th 73, 98.)
In this case, the trial court denied Chester's requests to represent himself as untimely. Chester contends that this was error. We disagree. In People v. Lynch (2010) 50 Cal.4th 693, 724 (Lynch), abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th 610, 637-638, our Supreme Court held that "timeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but upon consideration of the totality of the circumstances that exist in the case at the time the self-representation motion is made. An analysis based on these considerations is in accord with the purpose of the timeliness requirement, which is 'to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.' "
Although Chester contends that a Faretta motion may be timely even if it is filed on the first day of jury selection, our Supreme Court has "held on numerous occasions that Faretta motions made on the eve of trial are untimely." (Lynch, supra, 50 Cal.4th at p. 722.) Chester argues that, in this case, he was justified in waiting until the eve of trial to make his motion because it was only then that he discovered his attorney's alleged inadequacy. For the same reasons that we have cited with respect to Chester's motion to substitute counsel, however, the trial court was justified in concluding that Chester's motion was untimely.
II. IDENTIFICATION PROCEDURE
Chester contends that the trial court violated his Fourteenth Amendment right to a fair trial by admitting D.F.'s in-court identification of him, which he claims was tainted by an unduly suggestive and unreliable out-of-court identification procedure. " 'In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.' " (People v. Virgil (2011) 51 Cal.4th 1210, 1256.)
We need not determine whether the identification procedure used here violated due process because, even if it did, any error was harmless under any standard of review. (See People v. Sandoval (1977) 70 Cal.App.3d 73, 86.) The evidence against Chester at trial was overwhelming. He was arrested mere minutes after the robbery with several of the items D.F. stated that his attacker had used, including a BMX bike, a handgun, a drill, and a hat with a piece of cloth fashioned into a mask. In addition, police discovered on Chester's person the same scratch-off lottery tickets D.F. reported that the robber stole. Chester's attorney was also able to limit any potential prejudicial effect of the identification by cross-examining D.F. regarding the tenuousness of his identification. (See People v. Sanders (1995) 11 Cal.4th 475, 510.) D.F. admitted that he did not get a good look at his attacker and was unable to identify Chester with confidence until the police put the mask on him. He also acknowledged that Chester was much older than his initial estimate of 22 years old, and that Chester was not wearing a sweater with a Penguins logo, as Chester told police. All these admissions during cross-examination reduced the possibility of prejudice to Chester.
III. JOINDER OF THE CHARGES AGAINST CHESTER
The Penal Code allows for a single pleading to "charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts." (§ 954.) The trial court, however, "in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (Ibid.)
Our Supreme Court has described the following factors to consider in evaluating whether the trial court abused its discretion by refusing to sever charges in a particular case: "(1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses; and (4) is any one of the charges a death penalty offense, or does joinder of the charges convert the matter into a capital case." (People v. Marshall (1997) 15 Cal.4th 1, 27-28.)
Chester contends that the trial court abused its discretion by refusing to sever the charges pertaining to the robbery (counts 1-2) from those pertaining to the events at the donut shop and the children's football game (counts 3-5). He argues that because the evidence from the various counts was not cross-admissible, and there was a spillover effect between stronger and weaker cases, the charges should have been severed. We are not persuaded.
Although cross-admissibility of evidence is ordinarily sufficient to dispel any inference of prejudice and show that the trial court acted within its discretion by denying severance, " 'lack of cross-admissibility is not dispositive of whether the court abused its discretion.' " (People v. Romero and Self (2015) 62 Cal.4th 1, 30.) We need not decide whether the evidence would have been cross-admissible in this case because an examination of the remaining three factors shows that the trial court did not abuse its discretion. (See ibid.) The second and fourth factors do not aid Chester because none of the charges against him were significantly more inflammatory than the others, and this was not a capital case.
As to the third factor, there was no large disparity between the strength of the various charges against Chester. Although the jury was unable to reach a unanimous verdict on counts 3-5, the evidence against Chester on those counts was strong. With respect to the incidents at the donut shop and at the football game, witnesses with no apparent reason for animus against Chester testified that Chester threatened them. In each case, a witness testified to seeing Chester with a firearm, and in the case of the football game, the witness testified that Chester pointed the weapon at him. In each instance, a witness identified Chester as the perpetrator from a photo lineup. At the time the trial court denied Chester's motions to sever the charges, the court knew that the prosecution intended to offer this evidence at trial. (See People v. Marshall, supra, 15 Cal.4th at p. 27 [court reviews trial court's decision on joinder on the basis of the facts known at the time of the trial court's ruling].) Thus, the trial court did not abuse its discretion by denying Chester's motion to sever counts 3-5.
IV. RESENTENCING UNDER SENATE BILL NO. 620
When sentencing Chester, the trial court imposed a 10-year enhancement pursuant to section 12202.53, subdivision (b), because the jury found that Chester personally used a firearm in the commission of the robbery. At the time of Chester's sentencing, enhancements under section 12022.53 were mandatory, and the trial court lacked the authority to strike or dismiss them. (See, e.g., People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363, citing former § 12022.53, subd. (h).) Before Chester had exhausted all of his opportunities to challenge the trial court's judgment in reviewing courts, the Legislature amended that statute to provide that the "court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) The amendment went into effect on January 1, 2018. (See Cal. Const., art. IV, § 8, subd. (c).) Chester contends that, because his judgment is not final, the statute should be applied retroactively to allow the trial court an opportunity to strike his firearm enhancement. We agree.
Under section 1385, the court "may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed," and generally, "to strike or dismiss an enhancement" or "strike the additional punishment for that enhancement." (§ 1385, subds. (a) & (c); see People v. Meloney (2003) 30 Cal.4th 1145, 1155.) --------
Generally, amendments to the Penal Code do not apply retroactively. (See § 3.) Our Supreme Court has, however, recognized an exception for amendments that reduce the punishment for a specific crime. (See In re Estrada (1965) 63 Cal.2d 740, 745; accord, People v. Brown (2012) 54 Cal.4th 314, 323-324.) The Estrada court explained that when the Legislature has reduced a crime's punishment, it has "expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act." (In re Estrada, supra, 63 Cal.2d at p. 745.) The Court inferred that "the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Ibid.) To "hold otherwise," the Court concluded, "would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (Ibid.)
The Supreme Court has extended the Estrada holding to amendments that do not necessarily reduce a defendant's punishment, but which give the trial court discretion to impose a lesser sentence. (People v. Francis (1969) 71 Cal.2d 66, 75-76; see also People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308.) Chester contends that under this case law, Senate Bill No. 620 applies retroactively to defendants in his position. The People concede that Chester is correct, and we agree.
Nevertheless, the People argue that we need not remand Chester's case for resentencing on the ground that, upon remand, the court would not exercise its discretion to reduce his sentence. The People cite People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), in which the defendant requested that his case be remanded to the trial court for resentencing after our Supreme Court decided in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 that trial courts have discretion to strike prior strikes in determining a defendant's sentence. The court in Gutierrez rejected the defendant's request, noting that "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence. It stated that imposing the maximum sentence was appropriate. It increased appellant's sentence beyond what it believed was required by the three strikes law, by imposing the high term . . . and by imposing two additional discretionary one-year enhancements. Under the circumstances, no purpose would be served in remanding for reconsideration." (Gutierrez, supra, 48 Cal.App.4th at p. 1896.)
The People argue that, by the same reasoning, there is no need to remand Chester's case. They point out that the court imposed a sentence longer than the minimum required. In addition to the then-mandatory enhancement, the court selected the high term of five years as Chester's base sentence, rather than the low term he requested. The court explained that Chester's "record on probation has been terrible," and included multiple violations. The court noted that Chester had five prior felony convictions, including three since 1997 that involved firearms. In light of these factors, the court concluded that "there is no justification for the low term." The People contend that there is thus no realistic probability that the court would show leniency to Chester at resentencing.
We are not persuaded. In Gutierrez, the trial court stated during the initial sentencing hearing that " 'this is the kind of individual the law was intended to keep off the street as long as possible,' " and indicated that it would not have exercised its discretion to lessen the sentence. (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) In the current case, although the trial court imposed a longer prison term than required, the court did not state or imply that it would have imposed the firearm enhancement even if it had the discretion not to do so.
Furthermore, because the law at the time of sentencing did not allow the trial court to strike firearm enhancements, Chester did not have a reason to argue that the court should strike his enhancement. As our Supreme Court explained in a somewhat similar circumstance in People v. Rodriguez (1998) 17 Cal.4th 253, "[t]he evidence and arguments that might be presented on remand cannot justly be considered 'superfluous,' because defendant and his counsel have never enjoyed a full and fair opportunity to marshal and present the case supporting a favorable exercise of discretion." (Id. at p. 258 [requiring the presence of defendant and counsel at a hearing in which the court would determine whether it could reasonably exercise its discretion to strike a prior strike].)
DISPOSITION
Our opinion filed September 28, 2017 is vacated.
Chester's sentence under count 1 is vacated. On remand, the trial court shall hold a new sentencing hearing to consider whether to exercise its discretion under section 12022.53, subdivision (h), to strike or dismiss an enhancement otherwise required by section 12022.53. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
LUI, J.