Opinion
H043490
10-24-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL XANE COHEN et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. F25855, F25857)
Daniel Cohen and his mother, Diana Cohen, were convicted of murdering the property manager for the apartment they lived in and were sentenced to life in prison without the possibility of parole. They contend their convictions should be reversed because law enforcement obtained evidence through violations of their constitutional rights. They also contend they received ineffective assistance of counsel and that the trial court incorrectly instructed the jury. Finding no error, we will affirm the judgments.
Daniel Cohen also filed a petition for writ of habeas corpus, which we deny by a separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
I. BACKGROUND
Gordon Smith was found dead on the floor at his office in Capitola on a November morning in 2013. He had been shot four times, including twice in the head. Pooled blood around his body indicated he had been dead for some time.
Police interviewed Smith's administrative assistant, who told them Smith was in the property management business and had recently had some unusually negative interactions with two tenants he was attempting to evict, defendants Daniel and Diana Cohen. The assistant described defendants as "disgruntled" and "threatening" and recounted an incident several weeks before when Daniel came to the office to confront Smith about an eviction notice. Daniel was erratic and angry and told Smith that proceeding with the eviction would be like "murdering his mom," who was in poor health. After the incident, Smith remarked to his assistant that he was relieved Daniel "didn't just come down and shoot" him. The assistant also relayed to police that on the day he was shot, Smith received a phone call from Daniel and became visibly upset during the conversation.
Police obtained a warrant to search defendants' apartment and car. While waiting for the warrant to be issued, a team of officers maintained surveillance on the apartment. When defendants left in their car, several officers followed. Police conducted a high risk vehicle stop, meaning defendants were ordered out of the car at gunpoint and forced to the ground. While they were detained in the back of a police car, a recording device captured them discussing what to say if asked about their interactions with Smith. They were transported to the police station where they were kept in separate rooms, held overnight, and questioned at length.
The search of defendants' apartment and car yielded four expended bullet casings and an invoice from a storage facility in Santa Cruz. The invoice led police to a storage unit rented to Daniel Cohen. Inside was a .357 caliber revolver. The revolver had six bullet chambers; two bullets remained in the gun, and the other four chambers were empty. Forensic analysis confirmed the bullets that killed Smith were fired from that gun, and that Daniel's fingerprints were on it. DNA from a blood spot on Daniel's shoe was a match to Smith.
Statements from a used car dealer and witnesses at Smith's office, along with surveillance footage and records from the storage facility where the gun was found, chronicled defendants' activities the day of the killing. That morning, they took an SUV from a used car dealership, purportedly for a test drive. After obtaining the SUV—which Diana drove off the lot— they went to the storage facility (arriving at 12:38 p.m.), then left 14 minutes later. They were next seen in the parking lot of Smith's office building at around 5:15 p.m. The borrowed SUV was backed into a parking space with Daniel in the passenger seat. Cigarette butts found in the parking lot had DNA from both Daniel and Diana. Data extracted from an office computer indicated that Smith last used it at 6:42 p.m., at which time he would have been alone in the office. Twelve minutes later, defendants were back at the storage facility (which is about a four-minute drive from Smith's office).
The Santa Cruz County District Attorney charged Daniel Cohen with first degree murder (Pen. Code, § 187, subd. (a)), with the special circumstance allegation that he committed the murder while lying in wait (Pen. Code, § 190.2, subd. (a)(15)), and several enhancements for personal use of a firearm. (Pen. Code, §§ 12022.5, subd. (a)(1); 12022.53, subds. (b)-(d); 12022.53, subd. (d)). Diana Cohen was charged with first degree murder under an aiding and abetting theory, with the special circumstance of lying in wait. The jury found both defendants guilty of first degree murder and the special allegations true. The trial court sentenced Daniel Cohen to life without the possibility of parole, with a consecutive 25-years-to-life term for the Penal Code section 12022.53, subdivision (d) firearm enhancement. Diana Cohen was sentenced to life without the possibility of parole.
II. DISCUSSION
A. PROBABLE CAUSE TO ARREST
Before trial, both defendants moved under Penal Code section 1538.5 to suppress evidence of statements they made after being stopped by police and detained for questioning. They argued that in ordering them out of their car, taking them to the police station, and detaining them overnight, the police in effect arrested them and the arrest was not supported by probable cause as required by the Fourth Amendment to the United States Constitution. The trial court denied the motions. At trial, parts of the recorded conversation between defendants in the police car and parts of their recorded interviews were played for the jury. Defendants contend the trial court erred by denying the motions to suppress.
As a threshold matter, we agree with defendants that when they were transported to the police station for questioning and held overnight, they were not merely detained but arrested. Though there is no bright-line rule distinguishing an investigatory detention that does not require probable cause from an arrest that does, we focus on whether the police conducted an investigation designed to dispel or confirm suspicions quickly using the least intrusive means reasonably available. (People v. Celis (2004) 33 Cal.4th 667, 674.) Important are the duration, scope, and purpose of the stop. (Ibid.) And the brevity of the encounter is significant in determining whether the seizure was " ' "so minimally intrusive" ' " as to constitute only a detention. (Ibid., citing United States v. Sharpe (1985) 470 U.S. 675, 685.) We have little difficulty concluding that what occurred in this case—ordering defendants out of their vehicle and into a police car, then taking them to the police station where they were held from that evening until the next morning—was an arrest. (See Kaupp v. Texas (2003) 538 U.S. 626, 631 [handcuffing subject and taking him from his home to police station for questioning in the middle of the night was an arrest].) Though the purpose of the stop (to investigate a murder) was important, its scope was broad and the encounter cannot reasonably be viewed as brief. Nor can it be considered minimally intrusive. The seizure therefore had to be supported by probable cause to arrest.
The existence of probable cause for an arrest presents a question of law we review using our independent judgment. (People v. Thompson (2006) 38 Cal.4th 811, 818.) Since the operative facts regarding probable cause here are undisputed, our entire review of the order denying the motions to suppress is de novo. (Ibid.) The concept of probable cause has been described as "incapable of precise definition." (People v. Celis, supra, 33 Cal.4th at p. 673.) But that is intentionally so, because " '[p]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts.' " (Illinois v. Gates (1983) 462 U.S. 213, 232.) "Probable cause exists when the facts known to the arresting officer would persuade someone of 'reasonable caution' that the person to be arrested has committed a crime." (People v. Celis, supra, 33 Cal.4th at p 673.) The substance of the definition of probable cause is " ' "a reasonable ground for belief of guilt." ' " (Ibid., citing Maryland v. Pringle (2003) 540 U.S. 366, 371.)
In this case, the facts known at the time of the arrest are easy to ascertain because a search warrant application for defendants' home and car had been made. We therefore look to the affidavit submitted in support of the search warrant to determine what facts police knew tying defendants to the crime. Whether the affidavit contains facts establishing probable cause for arrest is a close question. At the time of the arrest, police did not know that defendants were seen in the parking lot of the victim's office around the time he was shot. Nor did they know that defendants owned a gun of the type used in the killing. Even so, law enforcement had information that defendants were upset with the victim because he was attempting to evict them, and Daniel likened the eviction to "murdering" his mother. An office assistant observed both defendants to be disgruntled and threatening. A recent interaction with Daniel was so tense the victim expressed relief Daniel did not shoot him. Shortly before he was killed, the victim was visibly upset during a telephone conversation with Daniel. The question we must answer is whether those facts, viewed in context, provide a strong enough suspicion of guilt to allow for an arrest rather than a brief investigatory detention. We conclude they do. While clearly not enough to convict defendants, the facts known at the time of the arrest meet the significantly lower standard for probable cause: a reasonable basis for belief of guilt.
Defendants argue that the affidavit does no more than establish they were guilty of being bad tenants, since much of it is devoted to facts regarding disputes with neighbors. But as discussed, other facts showed they had an acute animosity toward the victim, had a motive to kill him, and exhibited threatening behavior toward him. Defendants assert that merely because they had a motive to commit a crime does not establish probable cause they did commit it, but that is where context becomes important: after interviewing multiple witnesses who knew the victim, law enforcement did not learn of anyone else with a reason to harm him. Taken together and viewed in context, the facts known at the time of the arrest provided sufficient cause to believe defendants killed the victim. It was not error to deny the motions to suppress defendants' post-arrest statements.
B. PROBABLE CAUSE FOR THE SEARCH WARRANT
Defendants also moved before trial to quash the search warrant and to suppress evidence from the searches of their apartment and car, arguing the warrant was not supported by probable cause so the searches violated the Fourth Amendment. The trial court denied those motions. Defendants renew in this court their arguments regarding lack of probable cause for the search.
We review a magistrate's decision to issue a search warrant using our independent judgment to determine whether the warrant was supported by probable cause. (People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 203.) But searches conducted under a warrant are preferable to warrantless searches; in line with that preference we give deference to the issuing magistrate's initial determination of probable cause. Marginal cases are resolved by upholding the search. (Ibid.) Probable cause in the search warrant context is defined similarly to probable cause for arrest: whether there was "a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing." (People v. French (2011) 201 Cal.App.4th 1307, 1315.)
We have already concluded that the facts stated in the affidavit for the search warrant established probable cause to arrest defendants. It follows that those facts also establish a fair probability that a search of their belongings would uncover evidence of the crime; most significantly, the means of killing the victim. It was reasonable to infer that the gun or other evidence might well be in defendants' apartment or car. (See Illinois v. Gates (1983) 462 U.S. 213, 238 [there must be a fair probability that the evidence described in the warrant will be found in the identified places].) We will therefore uphold the magistrate's decision to issue the search warrant and find no error in denying the motions to quash and suppress.
C. COUNSEL WERE NOT INEFFECTIVE
Both defendants contend their respective attorneys were ineffective for failing to object to evidence that a rifle not used in the crime was found in their apartment, and for failing to object to certain questions posed to witnesses by the prosecutor and to what they characterize as improper closing argument. We review a contention of ineffective assistance of counsel with two questions in mind: whether counsel's performance fell below an objective standard of reasonableness under prevailing professional norms (People v. Gray (2005) 37 Cal.4th 168, 207), and whether "the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome." (Ibid., citing Strickland v. Washington (1984) 466 U.S. 668, 694.) It is presumed that an attorney's performance was within the broad range of professional competence and that any inactions were part of a sound trial strategy, so the burden is on defendants to establish ineffective assistance. (People v. Gray, supra, 37 Cal.4th at p. 207.) We are mindful in reviewing a failure to object "that 'an attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.' " (People v. Avena (1996) 13 Cal.4th 394, 421, citing People v. Kelly (1992) 1 Cal.4th 495, 540.)
1. Other Gun Evidence
Defendants assert that the trial court improperly admitted evidence of a rifle found in their apartment during the search conducted by police. In their view, since that gun was not used in the commission of the crime it was not relevant and therefore inadmissible. They acknowledge no objection was made to the evidence (which means the contention is forfeited), but they urge us to reach the merits of the issue under an ineffective assistance of counsel analysis. Whether analyzed as a direct claim of error in the admission of evidence or as counsel's ineffectiveness for failing to object, the contention fails because the evidence that defendants had a rifle in their apartment was relevant to the special circumstance allegation that the murder was committed while lying in wait. Defendants traveled to their storage unit apparently to obtain a handgun to kill the victim, even though they had another—much more difficult to conceal—firearm available at their residence. That tends to show they sought to conceal their purpose from the victim before killing, as required to prove lying in wait. (See CALCRIM No. 728.) The evidence was also relevant to prove premeditation, because retrieving the handgun from the storage unit in lieu of using the readily available rifle shows planning. There was no error in admitting the rifle evidence nor was counsel ineffective for not objecting.
2. Questions by the Prosecutor
Defendants assert that the prosecutor committed misconduct by using the term "murder" to refer to the killing when questioning witnesses. They argue that by using the word murder more than a dozen times and eliciting responses from witnesses containing the term, the prosecution improperly conditioned the jury to find the homicide was in fact murder (as opposed to a lawful killing in self-defense or voluntary manslaughter). No one objected to any of the questions or references, so the contention that using the word "murder" was prosecutorial misconduct has been forfeited. (People v. Hill (1998) 17 Cal.4th 800, 820 [timely objection is generally required to preserve issue of prosecutorial misconduct].) Here again, defendants ask us to analyze the merits of the issue under the standards for ineffective assistance of counsel based on a failure to object.
Defendants cite several cases for the proposition that it is generally improper for a prosecutor to refer to an unadjudicated homicide as a "murder." And we agree that it was inappropriate for the prosecutor to do so in these circumstances, where the nature of the homicide—murder or manslaughter—was a disputed issue for the jury to decide. We see no indication from the record that the prosecutor consciously used the term murder in an attempt to condition the jury to convict. That does not affect our analysis, however, because a claim of prosecutorial misconduct is not defeated by a showing of the prosecutor's good faith. (People v. Price (1991) 1 Cal.4th 324, 447.) Prosecutorial misconduct can occur based on statements that are inadvertent or negligent. (People v. Jasso (2012) 211 Cal.App.4th 1354, 1362.) The question we must ultimately answer, though, is whether the misconduct was prejudicial, since defendants' ineffective assistance of counsel contention cannot otherwise succeed. On that point, we conclude that the prosecutor referring to the homicide as a murder a dozen times over the course of the trial (which spanned several months and featured testimony from at least 37 witnesses), although improper, is not something likely to have affected the outcome. That is our conclusion despite no admonition to the jury to disregard the references. The evidence against defendants was strong, and included eyewitnesses and DNA placing them at the murder scene. Daniel Cohen's manslaughter theory based on imperfect defense of another was legally flawed, as the harm he purportedly believed would befall his mother was future rather than imminent harm. We have no reason to believe the result of the trial would have been different had counsel objected to the improper references to murder.
People v. Garbutt (1925) 197 Cal. 200, 204; People v. Johnson (1951) 105 Cal.App.2d 478; People v. Price (1991) 1 Cal.4th 324, 475; People v. Hines (1997) 15 Cal.4th 997, 1045.
3. Closing Argument by the Prosecutor
Defendants assert that the prosecutor committed misconduct by misstating the law during closing argument and that their attorneys were ineffective for not objecting. One purported misstatement they identify is the prosecutor's characterization of the requirement that a threat of harm be imminent in order for a killing to be voluntary manslaughter due to imperfect self-defense. The jury was instructed that a killing which would otherwise be murder is reduced to voluntary manslaughter if the defendant killed because of a real but unreasonable belief in the need to use deadly force, and that "[b]elief in future harm is not sufficient, no matter how great or how likely the harm is believed to be." (CALCRIM No. 571.) In arguing the point to the jury, the prosecutor stated, "And you'll see the instruction for voluntary manslaughter says 'future harm is not enough.' And should there be a death that resulted were they to be evicted, that's future harm, folks. So on its face that instruction doesn't apply. On its face. Period." We are not persuaded that is an incorrect statement of law. It is true the prosecutor summarized the concept by saying " 'future harm is not enough,' " rather than "belief in future harm is not enough." But some latitude must be allowed for attorneys to express legal principles during closing argument in a way they believe will be understandable to the jury (particularly when the argument is prefaced by pointing the jury to the relevant instruction, as was done here). The underlying point—that Daniel Cohen's belief an eviction would result in the death of his mother lacked the imminence required for imperfect defense of another—was entirely correct. Further, even if we were to consider it a misstatement of law, there would be no resulting prejudice because the jury was specifically admonished by the judge that "the actual instruction states 'belief in future harm is not sufficient.' [¶] So you may find minor differences in how the attorneys talk about the instructions and that's why I point out if you're not sure about something look at the written instructions." The jury was also instructed to follow the court's instructions on the law in favor of any conflicting arguments of counsel: "If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
Defendants next complain the prosecutor's argument misstated the elements of first degree murder. The prosecutor told the jury, "It has to be deliberate, which means you weigh the considerations. Now, a lot of people talk about—it's somebody did it with—it was premeditated and with deliberation. Deliberating is what you folks are going to do. Deliberately is what you intended to do. You did it on purpose. So deliberation has absolutely nothing to do with first degree murder." Viewed in isolation, the statement "deliberation has absolutely nothing to do with first degree murder" is clearly incorrect. Deliberation has much to do with first degree murder since that offense is defined as a killing done "willfully, deliberately and with premeditation." (CALCRIM No. 521.) Taken as a whole though, the prosecutor's argument did not suggest that the jury need not find defendants acted deliberately to convict them of first degree murder. Rather, the prosecutor seemed to be saying that "deliberately" is something of a redundancy since it would be difficult for one to act with premeditation yet not deliberately. Perhaps it was not articulated as the prosecutor had envisioned, but it was not improper to argue that if the jury found defendants acted with premeditation it necessarily must find they acted deliberately. And we are confident that the outcome of the trial was not affected by confusion about the meaning of "deliberately:" during deliberations the jury sent a question asking for clarification of that definition, and the trial court appropriately responded, "The definition of 'deliberately' as used in Instruction 521 [for first degree murder] is contained in that instruction." At most the prosecutor's argument was confusing, but any confusion was remedied by the court's response to the jury's question. There was no prejudice to defendants from the lack of objection to the argument and we reject defendants' ineffective assistance of counsel claim premised on that decision. (See also People v. Riel (2000) 22 Cal.4th 1153, 1202-1203 ["Whether to object at trial is among 'the minute to minute and second to second strategic and tactical decisions which must be made by the trial lawyer during the heat of battle.' [¶] Here, so far as the record shows, trial counsel fought what they reasonably believed were the genuine fights at trial. We cannot find counsel acted ineffectively in selecting which objections to make and which not to make."].)
Defendants also take issue with the prosecutor's argument that their recorded statements undermined their credibility: "each of their interviews was replete with lies. And even lies they couldn't keep straight. [¶ ... ¶] All that[,] completely inconsistent. So when you're trying to, like, match stories, they're lies." Defendants contend the argument invited the jury to compare each of their statements and use the statements of one against the other, in violation of the constitutional right to confront witnesses. (See Richardson v. Marsh (1987) 481 U.S. 200, 207 [where two defendants are tried jointly, pretrial statements of one cannot be admitted against the other].) We reject that contention because the argument that defendants lied to police and were attempting to "match stories" did not require the jury to use the statement of one defendant against the other. During a recorded conversation while they were detained in the police car, each defendant made statements suggesting an effort to agree on what they should tell police if asked about what happened when they went to the victim's office: "Diana Cohen: (Unintelligible) two other guys in a dark sedan in there when we went up. [¶] Daniel Cohen: Yeah, really. [¶] Diana Cohen: Mm-hm. [¶] Daniel Cohen: Why aren't they taxing their asses? [¶] Diana Cohen: I don't know. 'Cause they were there when we left. Used the bathroom. [¶] Daniel Cohen: I don't know. Yeah, then we were kicking it at Vallarta [a nearby restaurant.] [¶] Diana Cohen: Mm-hm. [¶] Daniel Cohen: And then he called and was like, "We'll figure out a date later on next week for the pipe thing." Right? [¶] Diana Cohen: Yeah. [¶] Daniel Cohen: Yeah. [¶] Diana Cohen: The only way I'd bring that up is if he did. [¶] Daniel Cohen: Huh? [¶] Diana Cohen: Only way I'd bring the bathroom thing up is if he does."
Nothing corroborated defendants' claim that "two other guys in a dark sedan" were at the victim's office. Nor was there evidence to corroborate the claim that defendants were at a nearby restaurant at the time of the shooting. So the argument that defendants lied and attempted to match stories was a fair comment on the evidence, supported by statements made by each defendant. The prosecutor did not ask the jury to use one defendant's statement against the other. As the argument was not improper, there was no reason for counsel to object and no ineffective assistance.
D. THE JURY WAS PROPERLY INSTRUCTED
Both defendants contend the trial court erred by not sua sponte instructing the jury regarding the offense of voluntary manslaughter based on killing in the heat of passion, a lesser included offense of first degree murder. The trial court did instruct on manslaughter based on imperfect self-defense, on the theory that Daniel honestly—even if unreasonably—believed that killing the victim was necessary to save his mother's life. But no instruction was given regarding the alternative basis for manslaughter, that the killing occurred "because of a sudden quarrel or in the heat of passion." (CALCRIM No. 570.) We conclude there was no error in not giving the heat of passion instruction because there was insufficient evidence to support that theory.
A trial court must instruct sua sponte on all lesser included offenses that are raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The mere existence of any evidence the lesser offense was committed will not require instruction on it; an instruction is required only when there is substantial evidence of the offense. (Id. at p. 162.) " 'Substantial evidence' in this context is 'evidence from which a jury composed of reasonable persons could ... conclude[] that the lesser offense, but not the greater, was committed.' " (Ibid.)
Defendants argue the jury could have found that Daniel killed because he was provoked and acted rashly as a result of that provocation, which would meet the elements for heat of passion manslaughter. (See People v. Breverman, supra, 19 Cal.4th at p. 163.) But heat of passion manslaughter has both subjective and objective components—the defendant must subjectively experience the heat of passion, but the circumstances must also be viewed objectively: they must be " 'sufficient to arouse the passions of the ordinarily reasonable [person].' " (People v. Steele (2002) 27 Cal.4th 1230, 1252.) As stated in the instruction, "[i]t is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (CALCRIM No. 570.) Under that standard, no reasonable jury could find that being evicted from an apartment—even unfairly and under circumstances that would adversely affect the health of one's mother—would cause a person of average disposition to kill from passion, without judgment. That theory was insufficient as a matter of law to support the objective component required for heat of passion manslaughter. There was no error in not giving the instruction.
Daniel separately argues that the instruction regarding defense of others was incomplete because it did not include optional, bracketed language found in the form instruction. The language he contends should have been used defines when a danger is sufficiently imminent to apply the doctrine of imperfect defense of another: "A danger is imminent if, when the fatal wound occurred, the danger actually existed or the defendant believed it existed. The danger must seem immediate and present, so that it must be instantly dealt with. It may not be merely prospective or in the near future." (CALCRIM No. 571.)
Trial counsel did not request that language. The contention that the trial court erred by not instructing with the optional language has therefore been forfeited. Daniel advances an alternative ineffective assistance of counsel argument, but that argument has no merit because counsel cannot be deemed ineffective for making a reasonable tactical decision. (People v. Fosselman (1983) 33 Cal.3d 572, 581 [a conviction will be reversed for ineffective assistance of counsel only if the record affirmatively discloses no rational tactical purpose].) Here, counsel had an excellent reason for not requesting the more specific definition of imminent danger: it would have completely undermined his client's claim of imperfect self-defense. It would already be difficult to prove that harm to Diana Cohen from an eviction which had not yet occurred constituted imminent (as opposed to future) harm; the language Daniel now contends should have been given would have assured the theory did not succeed. The definition makes clear that the danger "may not be merely prospective or in the near future." Since the purported danger to Diana Cohen (to the extent it existed) was without question in the future, giving the jury the optional language would have led it to conclude that imperfect self-defense did not apply.
E. NO REMAND REQUIRED FOR FIREARM ENHANCEMENTS
Daniel Cohen asks that we remand his case for resentencing on the enhancement for personal use of a firearm causing death (Pen. Code, § 12022.53, subd. (d)) based on Senate Bill 620 (Stats. 2017, ch. 682, § 2), which amended Penal Code section 12022.53 to give the trial court discretion to strike a firearm enhancement in the interest of justice. (See Pen. Code, § 12022.53, subd. (h).) Though that amendment was not effective until after his sentencing, he contends it applies because his case is not yet final and the trial should decide whether to strike the enhancement. It is correct that the amendment to Penal Code section 12022.53 applies to cases where sentence has been imposed but which are not yet final. (People v. Robbins (2018) 19 Cal.App.5th 660, 679.) But we need not remand to allow the trial court to consider whether to exercise its newly created discretion if "the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so." (People v. Almanza (2018) 24 Cal.App.5th 1104; 1110.)
We find just such a clear indication here. At sentencing the trial court stated its view that the facts of the case warranted the longest sentence allowable: "So based on the loss, based on your planning, based on the seriousness, the Court is going to impose the maximum sentence that I can at this time." Consistent with that stated intention, Daniel was sentenced to life without parole and a consecutive 25-years-to-life term for the most serious firearm enhancement, personal discharge of a weapon causing death (the two other enhancements the jury found true carry sentences of 10 years and 20 years). Given the trial court's clear indication that it would not impose a lesser sentence even if allowed the opportunity, no useful purpose would be served by remanding the case, particularly when the base term is life without parole.
The Attorney General notes that sentence was not imposed on either of the two lesser firearm enhancements the jury found true (Pen. Code, §§ 12022.5, subd. (a) and 12022.53, subd. (c)). Acknowledging that if imposed, sentence on those enhancements would have to be stayed under Penal Code section 654 (prohibiting multiple punishments for the same act), the Attorney General asks us to impose and stay sentence on the enhancements. We are a reviewing court, not a sentencing court, so we will not impose sentencing enhancements in the first instance. It is correct that at the time of sentencing, the sentence was unauthorized because the applicable enhancements were mandatory under Penal Code section 12022.53, subdivision (h). But with the recent amendment to that statute, the enhancements are no longer mandatory and the sentence need not be corrected.
III. DISPOSITION
The judgments are affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Premo, J.