Opinion
E068540
10-30-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE PILAR FLORES GUZMAN, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1600163) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey L. Gunther, Judge. (Retired judge of the Sacramento Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Jose Pilar Flores Guzman of making criminal threats (Pen. Code, § 422, count 2) and assault with a semiautomatic firearm (§ 245, subd. (b), count 3). As to count 2, the jury also found true the allegation that defendant personally used a firearm. (Former §§ 12022.5, subd. (a), 1192.7, subd. (c)(8).) The trial court sentenced him to a total term of six years in state prison, consisting of two years on count 2, plus a consecutive four years on the firearm enhancement. The court stayed the sentence on count 3, pursuant to section 654.
All further statutory references will be to the Penal Code unless otherwise noted.
The jury found defendant not guilty of the charge in count 1. --------
On appeal, defendant contends that: (1) there was insufficient evidence to support the conviction for assault with a semiautomatic firearm; (2) the case should be remanded for the court to exercise its discretion to strike or dismiss the firearm enhancement pursuant to the recent amendment to section 12022.5; and (3) the two protective orders that were issued pretrial should be stricken. The People concede, and we agree, that the matter should be remanded for the trial court to exercise its discretion to strike or dismiss the firearm enhancement and the protective orders should be terminated. Otherwise, we affirm.
FACTUAL BACKGROUND
In 2016, M.V. lived in an apartment with her parents and son. A few years prior to that, defendant lived with them, when he and M.V. were dating. However, they broke up, and defendant did not take the breakup well. He told her several times he did not want to see her with anyone else.
In or around October 2015, defendant came to M.V.'s apartment and knocked on her window. He showed her a gun and asked her to open the door. He said he wanted her to keep the gun for him.
Approximately one month later, defendant came to M.V.'s apartment and knocked on her bedroom window again. Her son, who was six years old at the time, said, "Hola, Papi." Her son then told M.V. that defendant had a gun. M.V. heard defendant rack and load the gun, then shoot it. In describing the sound at trial, M.V. made a motion as if she was racking a gun. When asked if it was a wooden sound or a metallic sound, she said it was a metallic sound.
In January 2016, M.V. was sitting in her living room with her parents and her boyfriend, T.L. (the victim). Defendant entered the apartment through the back door and appeared to have been drinking. He went to say hello to M.V.'s mother and to the victim. Defendant touched the victim on the back and said everything was fine. He then moved over to where M.V. was seated and became angry. Defendant pulled out a gun, pointed it upward, and said to the victim, "What if I shoot you?" The victim said, "Do it." M.V. and her mother told defendant to put the gun away, so he did. However, M.V. stood in front of the victim, and defendant pulled the gun out again and pointed it at the victim's head. M.V. and her mother pushed defendant out the door. M.V. called 911.
M.V. testified at trial that defendant's gun was black and square. She said it did not have a round cylinder in the middle of it.
The victim testified at trial that when defendant pointed the gun at his head, he was scared. He also testified that the gun was black and square. He said he knew what a revolver was from television, and defendant's gun was not a revolver. The victim said the gun appeared to be a semiautomatic, and it had a "loading mechanism."
M.V.'s father also testified at the trial. He said defendant's gun was black, and it had a rack to slide back on the top of it to prepare to fire it.
Officer Knudsen, who was the investigating police officer on defendant's case, also testified. He said he conducted a search of defendant's apartment, pursuant to a warrant. He found two nine-millimeter unspent bullets, which were for use in a semiautomatic handgun. The officer also testified about semiautomatic firearms, describing how they function. The prosecutor asked how to get the initial round (or bullet) into the chamber to be fired. The officer demonstrated with his hands and explained that if the magazine was in the firearm, there was a slide release that ran on the side of the firearm that one could depress, which would send the slide forward. The other technique one could use would be to just grab the upper frame of the firearm and pull the slide back, and that action would disengage the slide release; then when the slide was released, it would feed the round into the firearm. He reiterated that to chamber a round, someone would have to rack the firearm by moving the slide forward again with his or her hand, or just pull the slide back and release it, and it would slide forward on its own.
On cross-examination, the defense counsel asked if nine-millimeter bullets could be used in revolvers, and the officer testified that, "to some degree, [they] could, but they're not designed for that." However, when asked again, he said, "I'm not sure."
ANALYSIS
I. The Evidence Was Sufficient to Support Defendant's Conviction for Assault With a
Semiautomatic Firearm
Defendant contends there was insufficient evidence to support his conviction for assault with a semiautomatic firearm. He claims the prosecution proved he assaulted the victim with a firearm but did not prove the firearm was a semiautomatic. He points out that only the victim used the term "semiautomatic" and did so because he thought that was what guns like the one defendant used were called on television. We conclude the evidence was sufficient.
A. Standard of Review
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. The Evidence Was Sufficient
The evidence was sufficient to support defendant's conviction for assault with a semiautomatic firearm. Both M.V. and the victim testified that the gun defendant used during the assault was black and square. M.V. said it did not have a round cylinder in the middle of it, and the victim said it was not a revolver. Moreover, M.V. testified that the gun appeared to be the same one defendant used when he previously came to her window and asked her to keep his gun. She also testified that the second time defendant came and knocked on her window, her son looked out the window and said defendant had a gun. She then heard the sound of a gun being racked and loaded.
Furthermore, the victim testified that the gun defendant used appeared to be a semiautomatic and that it had a "loading mechanism." M.V.'s father similarly testified that defendant's gun had a rack to slide back on the top of it.
In addition, Officer Knudsen found two nine-millimeter bullets, which were for use in a semiautomatic handgun, at defendant's residence. The officer demonstrated for the jury how to load a semiautomatic handgun. He testified that in order to chamber a round, one would move the slide on top of the gun back and either release it to slide forward on its own or move it forward with his or her hand. Based on all of the evidence presented, a reasonable trier of fact could easily conclude that defendant used a semiautomatic firearm.
Defendant argues that none of the percipient witnesses' testimony proved his gun was semiautomatic, since none of them had experience with firearms. He asserts that the victim only used the term "semiautomatic" because he learned that term from television shows. Defendant also contends that although the officer testified the bullets he found in defendant's residence were generally used in semiautomatic firearms, they could conceivably be used in a revolver. Nonetheless, we note that M.V.'s demonstration and description of the sound defendant's gun made when she thought he was loading it was consistent with the officer's testimony of how to load a semiautomatic handgun. Moreover, the victim testified that defendant's gun had a "loading mechanism." Similarly, M.V.'s father testified that defendant's gun had a rack to slide back on top of it.
Viewing the evidence in a light favorable to the judgment, as we must, we conclude there was sufficient evidence to support defendant's conviction for assault with a semiautomatic firearm.
II. The Matter Should Be Remanded for the Trial Court to Exercise its Discretion
Pursuant to the Recent Amendment to Section 12022.5
Defendant contends that the matter should be remanded for the trial court to exercise its discretion to strike the firearm enhancement pursuant to the recent amendment to section 12022.5. Respondent concedes, and we agree.
The jury found true the firearm enhancement alleged under former section 12022.5, subdivision (a). At the time of sentencing, the trial court had no power to strike the firearm enhancement under section 1385. (See former § 12022.5.) However, in 2017, the Legislature approved, and the Governor signed Senate Bill 620, which, as of January 1, 2018, gives trial courts the discretion to strike enhancements found true under section 12022.5, in the interest of justice. (§ 12022.5, subd. (c); see People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080.)
Defendant asks that he be given the benefit of the current version of section 12022.5, subdivision (c), and that we remand the matter for the trial court to exercise the discretion now provided by the statute. Both defendant and the People agree that Senate Bill 620's amendment to section 12022.5, subdivision (c), applies retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 747-748 (Estrada); People v. Francis (1969) 71 Cal.2d 66, 75-76 (Francis); People v. Brown (2012) 54 Cal.4th 314, 323.) They also agree that the instant matter is not final, and it must be remanded for the trial court to exercise its discretion for possible resentencing under section 12022.5, subdivision (c).
Under Estrada, supra, 63 Cal.2d 740, "courts presume that, absent evidence to the contrary, the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal." (People v. Watts (2018) 22 Cal.App.5th 102, 119; see Estrada, at pp. 747-748.) "Estrada has been applied not only to amendments reducing the penalty for a particular offense, but also to amendments giving the court the discretion to impose a lesser penalty." (Watts, at p. 119; see Francis, supra, 71 Cal.2d at pp. 75-76.)
We therefore reverse the firearm enhancement imposed under former section 12022.5, subdivision (a), and remand the matter to the trial court for resentencing, where the court can exercise its discretion and determine whether or not to strike the enhancement imposed.
III. The Pretrial Protective Orders Should Be Terminated
Defendant contends two protective orders issued pretrial, pursuant to section 136.2, should be stricken because he was sentenced to prison. The People agree that the orders became ineffective when defendant was sentenced to prison and should be stricken.
"[D]uring the pendency of a criminal proceeding when the court has a 'good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur,' the court is authorized to issue a restraining order [under section 136.2]. However, section 136.2 is limited 'to the pendency of [a] criminal action' because section 136.2 'is aimed at protecting only "victim[s] or witness[es]." ' " (People v. Selga (2008) 162 Cal.App.4th 113, 118.) In other words, "its only purpose is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued in order to allow participation without fear of reprisal." (People v. Stone (2004) 123 Cal.App.4th 153, 159 (Stone), superseded by statute on other grounds, as explained in Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 951.)
On April 13, 2016, the trial court issued two protective orders pursuant to section 136.2. Both orders stated that they expire on April 13, 2019. Thus, they were issued for three years and were not limited to the pendency of the criminal proceeding. Because the only purpose of orders under section 136.2 is to protect victims and witnesses during the criminal proceeding, and defendant has now been convicted and sentenced to prison, the two orders should be terminated. (Stone, supra, 123 Cal.App.4th at p. 160.) We note that the Judicial Council Form, form CR-160, utilized by the trial court for the orders states that courts should use Judicial Council Form, form CR-165, Notice of Termination of Protective Order in Criminal Proceeding (CLETS), to terminate the orders.
DISPOSITION
The sentence is reversed and remanded to the trial court so that it may exercise its discretion to impose or strike the firearm enhancement under the amended provision of section 12022.5, subdivision (c). Furthermore, the protective orders against defendant are terminated, and the trial court should utilize the appropriate form(s) needed to terminate them. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.