Opinion
C083233 C083648
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. DESMOND EADDY, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. AARON NEWBY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F02249)
Defendants Desmond Eaddy and Aaron Newby met with the victim to buy some marijuana. They argued, and Newby shot and killed the victim. Appealing from their felony murder and robbery convictions, defendants raise the following contentions: (1) Both of them claim the trial court erred when it admitted testimony establishing they were unemployed at the time of the murder; (2) Newby contends the court abused its discretion when it denied his request for a continuance to procure a witness; (3) Eaddy claims insufficient evidence supports the felony murder special circumstance finding he acted with reckless indifference to human life; and (4) both ask us to remand for resentencing on a firearm enhancement under Senate Bill 620 (2017-2018 Reg. Sess.) (SB 620). (Stats. 2017, ch. 682.)
On our own motion, we have consolidated the appeals for purposes of argument and decision.
Except to remand for resentencing on the firearm enhancement and order the preparation of corrected abstracts of judgment, we affirm the judgments. We hold: (1) Defendants forfeited their claims against the trial court's admission of evidence of their unemployment, and in any event, any error was harmless; (2) the court did not abuse its discretion denying Newby's request for a continuance, as it reasonably concluded the prejudicial impact on the trial outweighed the probative value of the proposed witness's testimony; and (3) sufficient evidence supports the special circumstance finding against Eaddy; his use of a firearm to carry out the robbery and his decisions not to restrain Newby, limit the violence, or aid the victim support the jury's finding he acted with reckless indifference to human life.
FACTS
The victim was a marijuana dealer. On April 26, 2015, he and his fiancée, C., brought several pounds of marijuana and a scale to C.'s apartment. The marijuana was in a large garbage bag. The victim borrowed the keys to a car belonging to C.'s roommates, D. and K., and he placed the marijuana in the car's trunk.
Around noon, C. left to go to a fair. As she did, she noticed a silver car parked in the driveway that had been there a while. Two people were inside the car.
Later that day, the victim met with both defendants in the courtyard of C.'s apartment complex. At the victim's request, a friend brought him a Swisher for defendants to sample the marijuana. Then the three went inside C.'s apartment.
The victim asked D. to get the marijuana from the trunk of D.'s car. D. brought the bag to the apartment and gave it to the victim. D. thought the marijuana was bad quality. The victim took the bag into the bedroom and showed it to defendants. D. stayed in the apartment a few minutes and then walked outside.
When C. returned from the fair, she noticed the silver car was still parked in the same place and in the same position. Inside the apartment, she found the victim and defendants in her bedroom. They left the room, and as they did, they took a bag of marijuana with them. C. heard the victim arguing with someone else who was outside in the apartment courtyard.
Surveillance video recorded the events that occurred outside of C.'s apartment in the parking lot and courtyard area. Portions of the video were played to the jury.
K. was outside in the courtyard playing with her children and grandchildren and feeding them pizza. She saw Eaddy come out of the apartment carrying a big garbage bag. In the next moment, K. and D. heard two gun shots. Newby then ran out of the apartment, and the victim staggered out after him. He had been shot. Both defendants ran to a gray car. Eaddy carried a gun, and he dropped the gun clip and the marijuana on the way to the car. They got in the car, which was already occupied by two other men, and it drove away. K. picked up the gun clip and handed it to D. The victim leaned against the apartment building and collapsed.
Moments later, the car returned. Defendants got out of the car. One stood next to the car, pointed a gun at the apartment complex, and told the other, "I gotcha; don't worry." The other ran into the courtyard, picked up the dropped bags of marijuana, and ran back. The surveillance video showed he was carrying two bags. The two jumped into the car, and the car drove away. Paramedics declared the victim dead some minutes later.
The gun clip K. picked up belonged to a semiautomatic firearm. Police, however, found no shell casings from a semiautomatic at the scene. If the victim was shot with a revolver, police would not expect to find any kind of shell casings, as a revolver does not eject casings. If a revolver was used to kill the victim, it would mean there were two guns at the scene.
Detective Thomas Shrum testified marijuana at that time typically sold for $1,000 per pound, but lesser quality marijuana would sell in the low hundreds. The marijuana seized from the apartment where Eaddy was later arrested was of a "not so good" quality.
Detective Shrum interviewed Newby after he was arrested. Newby confessed to shooting the victim.
Defense
Eaddy presented no evidence at trial.
Newby testified in his own defense before both juries. He had bought and sold marijuana before. The night before the murder, he met with the victim to buy a couple of pounds of higher quality marijuana. He carried a firearm that night. He carries a firearm when he buys or sells marijuana in case something happens. He did not intend to rob the victim of marijuana that night.
The next day, Newby went back to the apartment complex to buy marijuana from the victim for reselling. He brought $1,800 to buy marijuana, even though he was not employed in a paying job at the time. He made money by selling marijuana and from SSI payments.
Newby said buyers and sellers of marijuana negotiate a price. He did not agree on a price with the victim outside in the courtyard. He went inside the apartment and into the bedroom. They talked about the marijuana the victim showed them. Newby thought it was a mixture of different levels of quality, some high quality and some "low budget." When the victim's girlfriend came into the room, they went into the living room and kitchen. Newby saw a scale in the kitchen.
Newby disagreed with the victim over the price. He told Eaddy, who was with him, he did not want to buy the marijuana because it was not enough to sell out of state. He decided to give the victim $1,500 for the marijuana, but he gave him only $500 and told him he would pay the rest later. They argued for a minute, and then got into a "scuffle." Eaddy grabbed two bags of marijuana and walked out of the apartment. This surprised Newby. The victim grabbed Newby by his arm in a tight grip as Newby turned to walk out. The victim outweighed Newby significantly. Newby pulled out his gun, a revolver. He had the gun in the same hand the victim had grabbed. They tussled, and the gun fired. Newby did not try to cock the hammer or pull the trigger. He did not intend to fire the gun.
When Newby spoke with the detective, he told him he tried to aim or shoot the gun at the victim's foot. He testified, however, that his statement was not correct, and that when they tussled with the gun, it fired into the ground. They continued tussling with the gun until it fired again and hit the victim in the shoulder.
Newby testified he did not at any time intend to take the victim's marijuana without paying for it. He did not intend to scare the victim into giving him the marijuana, or to hurt him and take the marijuana afterward. He did not intend to steal from the victim or to kill him. He did not intend to fire the gun.
Newby left the apartment and got into the waiting car. The car drove away, and then someone noticed the marijuana was not in the car. They drove back to the apartment. Eaddy got out of the car to retrieve the marijuana. Newby also got out and stood by the car holding a gun. He did not point the gun at anyone or try to scare anyone. At that point, he did not know something wrong had happened after the gun fired in the apartment. He learned later from the news that someone had died there.
In his first interview with detectives, Newby said they went to the apartment complex to rob the victim. At trial, he testified that statement was not true, and he did not remember why he said it.
On cross-examination, Newby stated Eaddy introduced the victim to him as a person who sold a lot of marijuana and could sell it in large quantities. Also, Newby told a detective that when he went to visit the victim the night before the murder, the person who took him there was going to "rip-off" the victim if he had the marijuana on him, and Eaddy had told the driver, "what's going on." At trial, Newby testified he lied to the detective when he said this.
Newby testified that on the day of the shooting, the victim was supposed to have 10 pounds of marijuana. If the marijuana was good quality, that amount would sell for $8,000 or $9,000, much more money than Newby had.
During the negotiations with the victim, Newby had his hand on his gun in his pocket the entire time. Eaddy actually showed a "chunk" of his gun to the victim before he left the apartment.
JUDGMENT AND SENTENCE
Separate juries found both defendants guilty of first degree murder (§ 187, subd. (a)), and first degree robbery (§ 211). The juries also found true (1) a special circumstance the murder was committed during the commission of a robbery within the meaning of section 190.2, subdivision (a)(17); and (2) allegations as to both felonies that defendants used firearms during their commission within the meaning of section 12022.53, subdivisions (b)-(d).
The court sentenced Eaddy to serve a state prison term of life without the possibility of parole, plus 10 years, calculated as follows: The indeterminate term on the murder count, plus a consecutive 10 years for the firearm enhancement. The court imposed and stayed a consecutive term of one year four months on the robbery count plus 10 years for the firearm enhancement.
The trial court sentenced Newby to serve a state prison term of life without the possibility of parole, plus 25 years to life, calculated as follows: The indeterminate term on the murder count, plus a consecutive 25 years to life for the firearm enhancement. The court imposed and stayed a consecutive term of one year four months on the robbery count plus 25 years to life for the firearm enhancement.
The abstracts of judgment incorrectly state each defendant was sentenced for an indeterminate term pursuant to section 667.5, subdivision (a)(1). We will order the trial court clerk to correct the abstracts to state each defendant was sentenced for an indeterminate term pursuant to section 190.2, subdivision (a)(17)(A).
DISCUSSION
I
Evidence of Defendants' Unemployment
Detective Shrum testified he found no evidence either defendant had a job at the time of the shooting. Eaddy's girlfriend, S., testified Eaddy was not working at the time of the shooting. Both defendants contend this evidence was unduly prejudicial under Evidence Code section 352, and the trial court abused its discretion in admitting it.
Both defendants have forfeited this claim on appeal. Eaddy's counsel objected to the testimony on the basis of relevance, not prejudice. An objection on the basis of relevance does not preserve a claim under Evidence Code section 352. (See People v. Barnett (1998) 17 Cal.4th 1044, 1130.) Newby's counsel did not object or join in Eaddy's objections. Newby forfeited the issue by not objecting. (People v. Chism (2014) 58 Cal.4th 1266, 1293.)
Assuming only for the sake of argument that defendants properly objected and the trial court erred by admitting the evidence, the error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Watson (1956) 56 Cal.2d 818, 836.) In each instance, the testimony was very brief. (See People v. McDermott (2002) 28 Cal.4th 946, 999 [admitting evidence of the defendant's poverty not prejudicial where testimony was relatively brief among other reasons].) Also, the prosecutor never argued the evidence established motive. Moreover, the evidence against defendants was very strong. Most of their actions outside the apartment were recorded by surveillance video. They were drug dealers. They were armed, and they used force to obtain the marijuana. Eaddy showed his gun to the victim during the negotiations. In that process, Newby shot and killed the victim. Under these circumstances, it is beyond a reasonable doubt the brief references to defendants' unemployment had no impact on the juries' verdicts.
II
Request for Continuance
Newby contends the trial court abused its discretion and denied him his due process rights when it denied his request midtrial for a four-day continuance over a weekend in order to present an out-of-state witness. We disagree. The court did not abuse its discretion when it determined the probative value of the witness's testimony did not warrant a delay in trial.
The witness, Newby's middle school counselor from 2007 through 2009, would allegedly testify to how Newby's disadvantaged upbringing, learning disabilities, a hearing disability, behavioral issues, and inability to deal with authority led him to tell an interviewing detective he robbed the victim when he allegedly never formed the intent to rob prior to the shooting. Counsel submitted a mitigation letter written by the counselor describing her background and the interactions she had with Newby while he attended her school. There was no evidence the counselor had any contact with Newby in the six years since he left middle school.
We granted Newby's request to augment the record with the letter.
The trial court denied the request. It ruled under Evidence Code section 352 that the prejudicial effect on the trial from granting the request outweighed the evidence's probative value. The counselor had no recent contact with Newby, and Newby had no apparent difficulty understanding the detective. The interview spoke for itself. The value of the counselor's testimony was questionable, and the court found it was not sufficiently probative to justify a delay in trial.
The trial court did not abuse its discretion or violate defendant's due process rights by denying the request. "Continuances in criminal cases may be granted only for good cause. (§ 1050, subd. (e).) 'A "trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. [Citation.] A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence." [Citation.] Such discretion "may not be exercised so as to deprive the defendant or his [or her] attorney of a reasonable opportunity to prepare." [Citation.] "To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges." [Citation.]' [Citation.]" (People v. Riggs (2008) 44 Cal.4th 248, 296.)
Newby did not establish good cause for granting the request. He laid no foundation from which the court could determine whether the counselor could testify to the points he claimed she would. The counselor's only contacts with Newby had been at school at least six years earlier, and there was no evidence she had any contact with him since that time. There was no evidence the counselor had viewed Newby's interview with the detective or even knew the charges against him. There was no evidence her expertise included the knowledge and experience to explain how Newby could have not intended to use the word "rob" in the particular interview.
Juxtaposed against this lack of evidence was Newby's behavior and statements in the interview. Nothing in the interview indicated he did not understand what the detective said to him or what he said to the detective.
Newby contends his request was reasonable. That is not the issue before us. At issue is whether the court abused its discretion denying his request. In light of the lack of foundation supporting the proposed testimony and its minimal probative value, we conclude the court did not abuse its discretion.
III
Sufficiency of Evidence Supporting Special Circumstance
Eaddy contends insufficient evidence supports his robbery-murder special circumstance. He claims the evidence was insufficient to establish he acted with reckless indifference to human life, an element of the special circumstance when the defendant is not the actual killer and does not intend to kill. We disagree with his contention. Sufficient evidence supports the jury's finding Eaddy acted with reckless indifference to human life.
An accomplice who aids and abets a felony murder but who lacks the intent to kill may still be found eligible for the death penalty if the accomplice's involvement is substantial and he or she demonstrates "a reckless indifference to the grave risk of death" created by his or her actions. (§ 190.2, subd. (d); People v. Banks (2015) 61 Cal.4th 788, 794.) Reckless indifference "encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his [or her] actions." (People v. Clark (2016) 63 Cal.4th 522, 617 (Clark).)
Acting recklessly "encompasses both subjective and objective elements. The subjective element is the defendant's conscious disregard of risks known to him or her. But recklessness is not determined merely by reference to a defendant's subjective feeling that he or she is engaging in risky activities. Rather, recklessness is also determined by an objective standard, namely what 'a law-abiding person would observe in the actor's situation.' (Model Pen. Code § 2.02, subd. (2)(c).) The commentary to this section of the code makes this clear: '[T]he point is that the jury must evaluate the actor's conduct and determine whether it should be condemned. The Code proposes, therefore, that this difficulty be accepted frankly, and that the jury be asked to measure the substantiality and unjustifiability of the risk by asking whether its disregard, given the actor's perceptions, involved a gross deviation from the standard of conduct that a law-abiding person in the actor's situation would observe.' (Model Pen. Code & Commentaries com. to § 2.02, p. 237, fn. omitted.)" (Clark, supra, 63 Cal.4th at p. 617.)
Because the elements required for the felony-murder special circumstance are different from those required for first degree felony murder, "what is sufficient to establish the elements for an aider and abettor of first degree felony murder is not necessarily sufficient to establish the elements of the felony-murder aider and abettor special circumstance." (Clark, supra, 63 Cal.4th at p. 616.) For example, a defendant involved in a felony enumerated in the first degree felony-murder statute (§ 189), such as robbery, does not by definition exhibit reckless indifference to human life. (Ibid.)
In addition, "while the fact that a robbery involves a gun is a factor beyond the bare statutory requirements for first degree robbery felony murder, this mere fact, on its own and with nothing more presented, is not sufficient to support a finding of reckless indifference to human life for the felony-murder aider and abettor special circumstance. (Banks, supra, 61 Cal.4th at p. 809.) As [the Supreme Court] stated: '[Felony murderers] who simply had awareness their confederates were armed and armed robberies carried a risk of death[] lack the requisite reckless indifference to human life.' (Ibid.)" (Clark, supra, 63 Cal.4th at pp. 617-618.)
The Supreme Court has identified the following factors to consider when determining whether a defendant, a non-shooter aider and abettor, acted with reckless indifference to human life in armed robbery felony murders: (1) knowledge of weapons, and use and number of weapons; (2) physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) duration of the felony; (4) the defendant's knowledge of a cohort's likelihood of killing; and (5) the defendant's efforts to minimize the risks of the violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-623.) " '[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient.' (Banks, supra, 61 Cal.4th at p. 803.)" (Clark, at p. 618.) We review each factor as it may apply here to determine whether the prosecution introduced sufficient evidence to support the special circumstance finding against Eaddy beyond a reasonable doubt. (Ibid.)
1. Knowledge of weapons , and use and number of weapons
Although a defendant's awareness that a gun will be used in the felony is not enough by itself to establish reckless indifference to human life (Clark, supra, 63 Cal.4th at p. 618), "[a] defendant's use of a firearm, even if the defendant does not kill the victim or the evidence does not establish which armed robber killed the victim, can be significant to the analysis of reckless indifference to human life." (Ibid.) Here, there is no evidence Eaddy knew Newby would fire his gun during the incident. However, both defendants carried firearms into the apartment. At some point before leaving the apartment and taking the marijuana, Eaddy displayed his gun to the victim. And when Eaddy left, Newby and the victim had not agreed on payment terms, and Eaddy was holding a gun in his hand while also carrying the marijuana as he came out. This evidence supports a conclusion by the jury that Eaddy intended to use a firearm to obtain the marijuana, he would have used lethal force if necessary, and he did in fact use the firearm, although not lethally.
2. Physical presence at the crime and opportunities to restrain the crime and/or aid the victim
"Proximity to the murder and the events leading up to it may be particularly significant where . . . the murder is a culmination or a foreseeable result of several intermediate steps, or where the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force. In such cases, 'the defendant's presence allows him [or her] to observe his [or her] cohorts so that it is fair to conclude that he [or she] shared in their actions and mental state. . . . [Moreover,] the defendant's presence gives him [or her] an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.' [Citation.]" (Clark, supra, 63 Cal.4th at p. 619.) The failure to render aid may also be considered. (Ibid.)
Here, Eaddy was present for the robbery, and he walked out of the apartment mere seconds before the shooting. The murder was a culmination of intermediate steps in which Eaddy was a significant participant. The first step occurred when he introduced Newby to the victim. Next, on the night before the murder, Newby and another man met with the victim with the intent to rob him, and Eaddy was aware of this. The following day, defendants met with the victim outside in the apartment courtyard and sampled the marijuana. Then they went inside to view it. In the living room, they purported to attempt to negotiate a sale. Newby told Eaddy he did not want to buy the marijuana, but he later made an offer. Before a deal was reached, Eaddy exposed his gun and left the apartment with the marijuana. By hearing Newby express his desire not to buy the marijuana, and seeing and hearing him make an offer but only proffer some of the money, then taking the drugs by showing his gun, Eaddy showed he shared Newby's intent of obtaining the marijuana by lethal force if necessary.
Eaddy did nothing to stop the argument or the robbery, despite having the opportunity to do so. When Newby told him he did not want to buy the marijuana, he could have ended the encounter then and encouraged Newby to leave with him. Eaddy also had to have heard the argument between Newby and the victim, as C. heard arguing while in her bedroom, but he took no action to stop it or mediate a deal. Instead, he walked out of the argument using a show of force.
Eaddy rendered no aid to the victim after the shooting. When he and Newby left the complex the first time and when they returned, they did not know if the victim was dead or alive. Immediately after the shooting, the victim walked outside into the courtyard and was still walking after defendants left. Although he was lying on the ground when Eaddy returned to get the marijuana, Eaddy made no attempt to see if the victim needed assistance or was dead. Newby testified he did not know the victim had died until later that day. He said the shooting was an accident, an assertion that emphasizes their reckless disregard of the victim after the shooting. From this, it is clear Eaddy had an opportunity to render aid instead of running away after the shooting and, upon returning, retrieving the marijuana and running away again.
The Attorney General contends Eaddy, when he returned to the scene to retrieve the marijuana he had dropped, also went inside the apartment to steal more marijuana. The surveillance video shows this assertion is incorrect. --------
3. Duration of the felony
"Courts have looked to whether a murder came at the end of a prolonged period of restraint of the victims by defendant. . . . Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation], possibly culminating in murder. The duration of the interaction between victims and perpetrators is therefore one consideration in assessing whether a defendant was recklessly indifferent to human life." (Clark, supra, 63 Cal.4th at p. 620.)
Although the parties' interaction from beginning to end lasted some minutes, there is no evidence defendants restrained the victim for a prolonged period, or that the actual confrontation lasted a lengthy period.
4. Eaddy's knowledge of Newby's likelihood of killing
"A defendant's knowledge of factors bearing on a cohort's likelihood of killing [is] significant to the analysis of reckless indifference to human life. Defendant's knowledge of such factors may be evident before the felony or may occur during the felony." (Clark, supra, 63 Cal.4th at p. 621.) There is no evidence Eaddy actually knew any factors that indicated Newby was likely to kill.
5. Eaddy's efforts to minimize the risks of violence during the felony
"[A] defendant's apparent efforts to minimize the risk of violence can be relevant to the reckless indifference to human life analysis. If the evidence supports an argument that defendant engaged in efforts to minimize the risk of violence in the felony, defendant may raise that argument and the appellate court shall consider it as being part of all the relevant circumstances that considered together go towards supporting or failing to support the jury's finding of reckless indifference to human life." (Clark, supra, 63 Cal.4th at p. 622.)
Here, there is no evidence Eaddy made any efforts to minimize the risk of violence. Rather, the evidence demonstrates Eaddy's actions likely increased the risk of violence. Eaddy exposed his gun and took the marijuana before the parties agreed to a price and after Newby disclosed he would not pay all of the money at that time.
Eaddy claims the evidence suggests defendants planned the robbery in such a way as to minimize the risk of violence. He argues the evidence shows he expected to take the victim's marijuana in broad daylight and in a public place where friends and acquaintances of the victim and children were coming and going. To the contrary, this evidence suggests defendants were reckless in their planning and implementation to conduct an armed robbery in the middle of the day with so many adults and children around. Indeed, the surveillance video shows adults and children walking in and out of the very apartment where, and while, defendants met with the victim.
To summarize, after considering the "aspects of the present felony that provide insight into both the magnitude of the objective risk of lethal violence and a defendant's subjective awareness of that risk" (Clark, supra, 63 Cal.4th at p. 623), we conclude sufficient evidence supports the jury's finding Eaddy acted with reckless indifference to human life while participating in the robbery. Eaddy used his gun as a means of forcefully taking the marijuana. The murder was a culmination of incremental steps in which Eaddy participated. He exacerbated the risk of violence by showing his gun and taking the marijuana instead of stopping the robbery or mediating an agreement while he had the opportunity to do so. He rendered no aid to the victim. And he and Newby planned the robbery to take place in the middle of the day in an apartment complex where adults and children were nearby and in and out of the apartment where they shot the victim. This is sufficient evidence to uphold Eaddy's special circumstance finding.
IV
Firearm Enhancements
After briefing in this case was completed, the Legislature passed and the Governor signed into law Senate Bill No. 620, which gave trial courts discretion to strike certain firearm enhancements in the interest of justice. Defendants filed supplemental briefs asserting SB 620 can be applied retroactively to cases not yet final and, therefore, we must remand for the trial court to determine in its discretion whether to strike the firearm enhancements imposed against them. The Attorney General agrees with them on this point. We agree with the parties.
Effective January 1, 2018, SB 620 authorizes a court to exercise its discretion under section 1385 to strike or dismiss a firearm enhancement allegation or finding made pursuant to sections 12022.5 and 12022.53. (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1 & 2.) The legislation is retroactive and applies to cases that were not final as of January 1, 2018, in which firearm enhancements were imposed. (Stats. 2017, ch. 682; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
Defendants' cases were not final when SB 620 became effective. We will thus remand them for the trial court to have an opportunity to exercise its sentencing discretion on the firearm enhancements imposed on defendants under section 12022.53, subdivision (c).
DISPOSITION
The judgments are remanded to the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.; Stats. 2017, ch. 682, § 2), and, if appropriate following exercise of that discretion, to resentence defendants accordingly and prepare corrected abstracts of judgment. In all other respects, the judgments are affirmed.
Further, we order the clerk of the trial court to prepare corrected abstracts of judgment that indicate each defendant was sentenced for an indeterminate term pursuant to Penal Code section 190.2, subdivision (a)(17)(A), and to deliver certified copies of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
MAURO, J.