Opinion
C078358
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. XUAN LE et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08F08600)
A jury found defendants Xuan Le and Darann Sing guilty of discharging a firearm from a motor vehicle (former Pen. Code, § 12034, subd. (d), now § 26100, subd. (d); unless otherwise set forth statutory references that follow are to the Penal Code), discharging a firearm at an inhabited dwelling (§ 246), and attempted murder (§§ 664/187, subd. (a)). In addition, the jury found true the allegations that defendants were principals in the offenses, that at least one principal personally used and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d) & (e)(1)), and that defendants committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury also found true the allegations that Le personally used and intentionally discharged a firearm (§ 12022.53, subds. (b), (c) & (d)) but found these allegations untrue as to Sing. The trial court sentenced Le to an aggregate term of 34 years to life and Sing to an aggregate term of 30 years to life.
On appeal, defendants contend that their sentences constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Sing further contends that the gang enhancement must be stricken from the abstract of judgment, and that the abstract of judgment contains a clerical error that must be corrected. In supplemental briefing, defendants contend that if their constitutional claim fails, they are entitled to a remand, as discussed in People v. Franklin (2016) 63 Cal.4th 261 (Franklin), for the purpose of placing facts into the record that would assist them at their eventual youth offender parole hearings. In addition, defendants contend that Proposition 57, the Public Safety and Rehabilitation Act of 2016, applies retroactively to this case and requires us to conditionally reverse the judgment entered below and remand for further proceedings. Finally, defendants contend that, in light of the recent passage of Senate Bill No. 620, this matter must be remanded to permit the trial court to consider whether it should exercise its newly-granted discretion to strike or dismiss the firearm enhancements imposed under section 12022.53.
In view of our high court's recent decision in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), we find that Proposition 57 applies retroactively to benefit defendants. Therefore, we will conditionally reverse the judgment and remand the matter to the juvenile court for a transfer hearing wherein the court will determine defendants' fitness for treatment within the juvenile justice system. (Welf. & Inst. Code, § 707.) If, after conducting the hearing, the juvenile court determines that defendants should be transferred to adult court, then their convictions and sentences will be reinstated. The trial court shall then exercise its newly-granted discretion to determine whether any of the firearm enhancements imposed under section 12022.53 should be stricken or dismissed, and correct the sentencing and clerical errors we identify below. If the trial court declines to exercise its discretion to strike or dismiss the 25 years to life firearm enhancements imposed under section 12022.53, it must then determine, pursuant to Franklin, whether defendants were afforded an adequate opportunity to make a record of information that will be relevant to the Parole Board at their eventual youth offender parole hearings.
If the juvenile court determines that defendants are fit for juvenile court treatment, the juvenile court is ordered to treat defendants' convictions as juvenile adjudications and impose an appropriate juvenile disposition after a dispositional hearing. (Welf. & Inst. Code, §§ 702 [§ 602 wardship determination], 706 [disposition hearing].)
Because we conditionally reverse the judgment and remand the matter to the juvenile court for a transfer hearing wherein the court could determine that defendants are fit for juvenile court treatment, and because the trial court will have discretion to strike or dismiss the 25 years to life firearm enhancements if the juvenile court transfers the matter to adult court, we conclude that defendants' Eight Amendment claim is premature. Therefore, we decline to address it.
FACTS AND PROCEEDINGS
In light of the issues raised on appeal, a detailed recitation of the underlying facts and procedural history of the case is unnecessary. It suffices to say that defendants were both involved in a drive-by shooting in which 32 shots were fired at a group of individuals standing outside a residence. One person was shot twice and two others were shot once. Le was identified as one of the shooters while Sing was identified as a passenger in the vehicle involved in the drive-by.
Defendants, who were 16 years old at the time of the shooting, were charged as adults. (See Former Welf. & Inst. Code, § 707, subds. (b) & (d)(1); Stats. 2008, ch. 179, § 236, pp. 653-656 [an accusatory pleading may be filed in criminal court where a minor 16 years of age or older is accused of committing one of the violent or serious offenses enumerated in section 707, subdivision (b), including attempted murder].) Following a jury trial, defendants were convicted of multiple offenses, including attempted murder (§§ 664/187, subd. (a)). The jury also found true several sentence enhancement allegations as to both defendants, including firearm enhancements (§ 12022.53) and a gang enhancement (§ 186.22, subd. (b)(1)). The trial court sentenced Le to an aggregate term of 34 years to life and Sing to an aggregate term of 30 years to life. As part of their respective sentences, the trial court imposed a consecutive sentence of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). At the time of sentencing, a consecutive sentence for the firearm enhancement was mandatory.
DISCUSSION
I
Proposition 57
While the appeals in this case were pending, Proposition 57 became effective. Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors in adult criminal court. Certain categories of minors—which would include defendants—can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as their age, maturity, intellectual capacity, mental and emotional health, degree of criminal sophistication, prior delinquent history, whether they can be rehabilitated, and the circumstances and gravity of the offense alleged. (Welf. & Inst. Code, § 707, subd. (a).)
Defendants contend that Proposition 57 applies retroactively to this case and requires us to conditionally reverse the judgment entered below and remand for further proceedings. We need not address defendants' arguments supporting their contention that Proposition 57 should apply retroactively to this case, or the People's arguments in opposition, because our high court has resolved the issue.
In Lara our Supreme Court held: "The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, [the] inference of retroactivity [set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada)] applies. As nothing in Proposition 57's text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at pp. 303-304.) Accordingly, Proposition 57 applies to this case.
Having determined that defendants are entitled to the retroactive benefit of Proposition 57, we must now decide the appropriate remedy under the circumstances of this case. Defendants contend that the judgment must be conditionally reversed and the matter remanded to the juvenile court with directions to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707, subdivision (a). We agree.
The procedural posture of Lara was not the same as this case. In Lara, the prosecutor had direct-filed charges in adult criminal court, but the real party in interest had not been tried at the time Proposition 57 took effect. (Lara, supra, 4 Cal.5th at p. 304.) Here, defendants had been tried, convicted, and sentenced in adult criminal court before Proposition 57 took effect. However, the Lara court endorsed a remedy for such cases provided in People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298 (Vela).
In Vela, the defendant had been charged in adult criminal court, tried, convicted, and sentenced prior to the enactment of Proposition 57. (Vela, supra, 11 Cal.App.5th at pp. 71-72, review granted.) After the passage of Proposition 57, the Vela court concluded that Proposition 57 applied retroactively to the defendant's case under the rule in Estrada. (Vela, at pp. 76-81, review granted.) Regarding the remedy fashioned in Vela, our high court in Lara wrote: "After finding that the defendant was entitled to a transfer hearing, the Vela court considered the remedy. It began by noting that the 'jury's convictions, as well as its true findings as to the sentencing enhancements, will remain in place. Nothing is to be gained by having a "jurisdictional hearing," or effectively a second trial, in the juvenile court.' [Citation.] Noting that an 'appellate court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances[]" [citation],' the court ordered a limited remand. [Citation.] [¶] Specifically, the Vela court ordered as follows: 'Here, under these circumstances, Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. [Citation.] When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela's cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then Vela's convictions and sentence are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' " (Lara, supra, 4 Cal.5th at pp. 309-310, quoting Vela, at pp. 81-82, review granted.)
The Lara court endorsed the Vela remedy. (Lara, supra, 4 Cal.5th at pp. 312-313.) In doing so, the court considered the Vela remedy in discussing another Court of Appeal case which concluded that the complexity of remedies such as the remedy provided in Vela supported the denial of transfer hearings to cases already pending in adult criminal court. (Lara, at pp. 312-313, discussing People v. Superior Court (Walker) (2017) 12 Cal.App.5th 687, 704-705 & fn. 20.) Rejecting this rationale for denying transfer hearings, the Lara court concluded that "complexity is inherent when juveniles are to be treated as adults," and stated that "remedies like those provided in Vela and [People v. Cervantes (2017) 9 Cal.App.5th 569, review granted May 17, 2017, S241323] are readily understandable, and the courts involved can implement them without undue difficulty. The potential complexity in providing juveniles charged directly in adult court with a transfer hearing is no reason to deny the hearing." (Lara, at p. 313.)
Consistent with the Lara court's endorsement, we conclude the remedy in Vela is appropriate here. Accordingly, we will conditionally reverse the judgment and remand the matter to the juvenile court with directions to conduct a transfer hearing wherein the court will determine defendants' fitness for treatment within the juvenile justice system. (Welf. Inst. Code, § 707, subd. (a).) If the juvenile court determines it would have transferred the case to adult court if the prosecutor had originally filed a juvenile petition in juvenile court and then moved to transfer the matter to adult court, then this case will be transferred to adult court and defendants' convictions and sentences shall be reinstated. (Welf. & Inst. Code, § 707.1, subd. (a).) The trial court shall then conduct additional proceedings consistent with this opinion and correct the clerical errors we identify below.
Alternatively, if the juvenile court finds that it would not have transferred defendants to adult court, it shall treat defendants' convictions as juvenile adjudications and enter appropriate findings consistent with Welfare and Institution Code section 702. (Welf. & Inst. Code, §§ 602 [defining ward], 702 [wardship determination].) It shall thereafter impose an appropriate disposition after a dispositional hearing. (Welf. & Inst. Code, § 706.)
II
SB 620
On October 11, 2017, the Governor signed into law Senate Bill No. 620 (2017-2018 Reg. Sess.) (hereafter Senate Bill 620), which amended section 12022.53, subdivision (h), effective January 1, 2018 (Stats. 2017, ch. 682, § 2). Prior to the enactment of Senate Bill 620, and at the time defendants were sentenced by the trial court, section 12022.53 required mandatory imposition of sentencing enhancements in certain enumerated situations. As amended, this provision now states: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).) Here, as noted above, the sentences imposed in this case include firearm enhancements under section 12022.53.
Defendants argue that this matter must be remanded to permit the trial court to exercise its newly-granted discretion to decide whether to strike or dismiss the firearm enhancements under section 12022.53 subdivision (h). The People agree that defendants are entitled to the retroactive ameliorative effect of the amendment to section 12022.53 and that remand is appropriate as to Sing. However, the People argue that remand is not appropriate as to Le. According to the People, because the trial court imposed the upper term on the attempted murder count as to Le and characterized his conduct as "very serious" and "frightening beyond measure," there is no reasonable probability that the court would strike the firearm enhancement if given the opportunity to do so on remand.
For the reasons stated by this court in People v. Woods (2018) 19 Cal.App.5th 1080 (Woods), we conclude that the recent amendment to section 12022.53 is retroactive and applies to this case. (See id. at pp. 1090-1091.) We further conclude the matter must be remanded to the trial court to provide it the opportunity to exercise its discretion to strike or dismiss the firearm enhancements in the first instance. We are not persuaded by the People's contention that remand is not required in the instant case as to Le because remand would be futile. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez) [remand not required where trial court's comments at sentencing and sentence itself show that "no purpose" would be served by a remand].)
Gutierrez is distinguishable. In Gutierrez, the appellate court concluded that it need not remand the case for the trial court to exercise its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike a prior conviction under the "Three Strikes" law, because the record showed that the trial court would not have exercised such discretion. (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) At sentencing in that case, the trial court "stated that imposing the maximum sentence was appropriate" and that the defendant was " 'the kind of individual the law was intended to keep off the street as long as possible.' " (Ibid.) The trial court increased the defendant's sentence "beyond what it believed was required by the three strikes law, by imposing the high term for count 1 and by imposing two additional discretionary one-year enhancements." (Ibid.) On these facts, the appellate court concluded that the trial court would not exercise its discretion to lessen the sentence, and therefore "no purpose would be served in remanding for reconsideration." (Ibid.)
In contrast to Gutierrez, the trial court in this case gave no indication whether it would have exercised its discretion to lessen the length of the sentences imposed. As the People correctly point out, the trial court noted at sentencing that the drive-by shooting was "frightening beyond measure" and a "very serious" crime. It involved "a great many rounds" fired from semi-automatic or automatic weapons into a crowd of people. The trial court further noted that there were four injuries, one of which was serious, and that a number of people could have been killed. In selecting the upper term for Le and the lower term for Sing on the attempted murder count, the court found that their conduct was violent, they represented a serious danger to society, and they were on probation at the time of the shooting. The court also noted that Sing had "prior issues with the law enforcement." The court found that there were "great aggravating factors" and only one mitigating factor— defendants' youth. The record, however, is silent as to the court's thoughts regarding the firearm enhancements. The fact that the trial court chose the upper term of nine years for Le and characterized defendants' conduct as very serious is potentially suggestive. However, it is not equivalent to adding an additional 25 years to life to their terms. The record does not clearly indicate that the court would not, in any event, have exercised its discretion to strike or dismiss the firearm enhancements had it been possible to do so at the time of the original sentencing. (See Romero, supra, 13 Cal.4th at p. 530, fn. 13.) Further, the amendments effected by Senate Bill 620 allow the court to strike, among others, enhancements under section 12022.53, subdivision (d), which involve the discharge of a firearm resulting in death or great bodily injury. Thus, while the trial court's comments reflect the seriousness of defendants' conduct, the Legislature has determined that it might be appropriate to strike or dismiss firearm enhancements even in serious cases. We express no opinion as to how the trial court should exercise its newly granted discretion under section 12022.53, subdivision (h) on remand. We conclude only that it is the trial court's function to exercise this discretion in the first instance. " 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see id. at pp. 1391-1392 [remand was appropriate because the record did not clearly indicate the trial courts would have imposed the same sentence had they been aware of full scope of their discretion after change in law].)
III
Remand Under People v. Franklin
In 2013, the California Legislature passed Senate Bill No. 260, which changed parole eligibility and parole considerations for youthful offenders. (§§ 3051, 4801, subd. (c).) The current version of section 3051, subdivision (a)(1), provides that: "A youth offender parole hearing is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense." Juveniles sentenced to an indeterminate base term of 25 years to life will receive a hearing during their 25th year of incarceration. (§ 3051, subd. (b)(3).) The youth offender parole hearing "shall provide for a meaningful opportunity to obtain release." (§ 3051, subd. (e).) The Board of Parole Hearings "shall take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual." (§ 3051, subd. (f)(1).)
Although our Supreme Court in Franklin held that the juvenile offender "need not be resentenced," it remanded "the matter to the trial court for a determination of whether [the defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) This was because defendant had raised "colorable concerns" over "whether he was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth." (Id. at p. 269.) The court explained: "The criteria for parole suitability set forth in Penal Code sections 3051 and 4801 contemplate that the Board's decisionmaking at [the defendant]'s eventual parole hearing will be informed by youth-related factors, such as his cognitive ability, character, and social and family background at the time of the offense." (Ibid.)
Franklin observed that section 3051, subdivision (f)(2) "provides that '[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime . . . may submit statements for review by the board,' " and that "[a]ssembling such statements 'about the individual before the crime' is typically a task more easily done at or near the time of the juvenile's offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away." (Franklin, supra, 63 Cal.4th at pp. 283-284, quoting § 3051, subd. (f)(2).)
"Because [the defendant] was sentenced before the high court decided [Miller v. Alabama (2012) 567 U.S. 460 (Miller)] and before our Legislature enacted [sections 3051 and 4801], the trial court understandably saw no relevance to mitigation evidence at sentencing. In light of the changed legal landscape, we remand this case so that the trial court may determine whether [the defendant] was afforded sufficient opportunity to make such a record at sentencing. This remand is necessarily limited; as section 3051 contemplates, [the defendant]'s two consecutive [25-year-to-life sentences] remain valid, even though the statute has made him eligible for parole during his 25th year of incarceration." (Franklin, supra, 63 Cal.4th at p. 269.)
Our Supreme Court described the procedure to be followed on remand: "If the trial court determines that [the juvenile] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [The juvenile] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors [citation] in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law.' [Citation.]" (Franklin, supra, 63 Cal.4th at p. 284.)
In this case, defendants were sentenced prior to Franklin but after Graham, Miller, and Caballero and the enactment of sections 3051 and 4801. Because Franklin was decided after the People filed their respondent's brief and the day before Le filed his reply brief, we requested supplemental briefing on the issue of whether a limited remand under Franklin was proper. In their respective supplemental briefs, defendants argue that Franklin requires a remand to the trial court because the importance of a juvenile's sentencing hearing in creating the record of information for a youth offender parole hearing was not clear prior to Franklin, and because there was no discussion at sentencing about creating a record for use at their future youth offender parole hearings. The People disagree, arguing that a remand is unnecessary because defendants had notice that they should make a record of information relevant to their eventual youth parole hearings prior to the sentencing hearing, and because the record shows that defendants did in fact place such information in the record at sentencing.
Although we find it to be a close case, we remand this matter to the trial court for the limited purpose of determining whether defendants had a sufficient opportunity to make a record of information that will be relevant to their eventual youth offender parole hearings. In doing so, we recognize that defendants presented some mitigating evidence tied to their youth at sentencing, i.e., psychiatric evaluation reports. However, it is not clear from the sentencing briefs and the transcript from the sentencing hearing whether defendants understood that the sentencing hearing would serve as the primary mechanism for creating the record of information required for their eventual youth parole offender hearings. (See People v. Jones (2017) 7 Cal.App.5th 787, 819 (Jones) ["Franklin made clear that the sentencing hearing has newfound import in providing the juvenile with an opportunity to place on the record the kinds of information that 'will be relevant to the [parole board] as it fulfills its statutory obligations under sections 3051 and 4801' "].)
The record contains sentencing briefs filed by Le but does not include a sentencing brief filed by Sing. In Le's supplemental sentencing brief, he notes that his psychiatric evaluation report describes him as lacking maturity with an underdeveloped sense of responsibility at the time of the crime, vulnerable and susceptible to negative influences and outside pressures, and someone who presents a low recidivism risk. In support of his request for a sentence of 15 years, Le's brief also stated: "The Court . . . has received an in-depth analysis of Mr. Le's psychological make up at the time of the commission of the crime. He grew up in a neighborhood with rampant gang activity. His motivation for gang membership was, primarily social, i.e., he wished for an extended family and social acceptance. He has a particularly naïve and unsophisticated understanding of complex interpersonal relationships. He is emotionally and socially immature. He shows low scores for psychopathy, thus making him an excellent candidate for rehabilitation."
While there were a few references at the sentencing hearing to the fact that the defendants were young at the time of the offense and that psychiatric evaluation reports were prepared, there was no discussion on the record of youth-related factors, such as defendants' cognitive ability, character, and social and family background at the time of the offense. Nor did the parties or trial court address whether the evidence submitted in connection with the sentencing hearing provided an accurate record of defendants' characteristics and circumstances at the time of the offense so that the parole board can properly discharge its obligation to " 'give great weight to' " youth-related factors in determining whether the defendants are " 'fit to rejoin society.' " (Franklin, supra, 63 Cal.4th at p. 284 [explaining that making such a record is more easily done at or near the time of the offense "rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away"].) Aside from the psychiatric evaluation reports, defendants did not submit any mitigating evidence that will be relevant to the parole board in their future youth offender parole hearings. For instance, as noted by the trial court at sentencing, the record does not contain any character reference letters attesting to the good character of the defendants as contemplated by section 3051, subdivision (f)(2). While Sing's attorney noted that "anything with respect to social or family letters w[as] incorporated in [the psychological] report," he acknowledged that there were no letters attached to the report.
On this record, it is unclear to us whether defendants understood both the need and opportunity to develop the type of record contemplated by Franklin at sentencing. In the absence of a clear record, we conclude that the trial court is in the best position to determine whether the defendants should be permitted to submit additional evidence that may be relevant to their eventual youth offender parole hearings. (See Jones, supra, 7 Cal.App.5th at pp. 819-820 [remanding to trial court where it was unclear whether defendant "understood both the need and the opportunity to develop the type of record contemplated by Franklin"].) Accordingly, if the trial court declines to exercise its discretion to strike or dismiss the 25 years to life firearm enhancements imposed under section 12022.53, it shall determine whether defendants were afforded an adequate opportunity to make a record of information that will be relevant to the Parole Board at their eventual youth offender parole hearings. Alternatively, if the trial court strikes or dismisses the 25 years to life enhancements, it need not make this determination.
IV
Sentencing Errors
Sing contends that the gang enhancement must be stricken from the abstract of judgment because it was not part of the oral pronouncement of sentence. Sing further contends that because the gang enhancement was unauthorized, it must be stricken from the abstract of judgment.
Section 12022.53 imposes enhancements for persons convicted of certain felonies who personally used a firearm, personally and intentionally discharged a firearm, or personally and intentionally discharged a firearm proximately causing great bodily injury or death. (§ 12022.53, subds. (b), (c), & (d); People v. Brookfield (2009) 47 Cal.4th 583, 589 (Brookfield).) Those additional terms must be in addition and consecutive to the term imposed for the underlying crime. (§ 12022.53, subds. (b), (c), & (d).) Section 12022.53, subdivision (e)(1) extends those enhancements beyond persons who personally committed the stated acts to any defendant who was a principal in the commission of the offense if the prosecution pleads and proves that (1) the defendant committed the offense to benefit a criminal street gang within the meaning of section 186.22 subdivision (b)(1) and (2) a principal in the offense personally used a firearm or personally and intentionally discharged a firearm. (Brookfield, at p. 590.)
In Brookfield, our Supreme Court examined the interplay between sections 12022.53 and 186.22 and interpreted section 12022.53, subdivision (e)(2) in the context of a case where, as here, the defendant (i.e., Sing) was convicted of a gang-related crime wherein he did not personally use or discharge a firearm, but his companion did (i.e., Le). (Brookfield, supra, 47 Cal.4th at pp. 586, 590-596.) Referring to section 12022.53, subdivision (e)(2), the Supreme Court said, "[a] defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 and the increased punishment provided for in section 12022.53. In contrast, when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an 'enhancement for participation in a criminal street gang . . . in addition to an enhancement imposed pursuant to' section 12022.53. [Citation.]" (Id. at p. 590, italics omitted.) When an enhancement specified in section 12022.53 has been found to be true, the court shall impose punishment for that enhancement rather than imposing punishment authorized under any other provision of law (e.g., § 186.22, subd. (b)), unless the other enhancement provides for a greater penalty or a longer term of imprisonment. (Brookfield, at p. 596, citing § 12022.53, subd. (j), italics omitted.) Thus, if, as here, a defendant did not personally use a firearm and is subject to an enhancement under section 12022.53 based on the acts of another principal, the court must select between the punishments provided under sections 12022.53 and 186.22 and must impose the greater penalty. (Brookfield, at p. 596.)
Here, the jury found Sing guilty of discharging a firearm from a motor vehicle (§ 12034, subd. (d)), discharging a firearm at an inhabited dwelling (§ 246), and attempted murder (§§ 664/187, subd. (a)). In addition, the jury found true the allegations that Sing was one of the principals in the offenses, that at least one principal personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d) & (e)(1)), and that he committed the charged offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury, however, found untrue the allegations that he personally used or personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c) or (d). Thus, Sing was found to be an accomplice to gang-related offenses in which another principal personally used and personally and intentionally discharged a firearm.
The trial court sentenced Sing to an aggregate prison term of 30 years to life. Count three, attempted murder, was identified as the principal term. The court selected the low term of five years, plus an additional 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), i.e., the greater penalty between the punishments provided under sections 12022.53 and 186.22. Although the abstract of judgment reflects the trial court imposed and stayed a gang enhancement on the attempted murder count, the record reflects that the trial court failed to orally impose a term and stay execution of sentence as to the enhancement, resulting in an unauthorized sentence. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 432 [the failure to pronounce sentence on a sentence enhancement allegation found true by the trier of fact results in an unauthorized sentence].)
Contrary to Sing's contention, the trial court was not required to strike the gang enhancement. Rather, the trial court was required to impose sentence on the gang enhancement and then stay execution, unless it exercised its discretion to strike the enhancement under section 186.22, subdivision (g). (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1127-1130 (Gonzalez) [when pronouncing sentence on any prohibited enhancement, the trial court must impose sentence and stay execution of, rather than strike, so much of the term as is prohibited by law or exceeds the applicable limitations on the imposition of multiple enhancements], citing Cal. Rules of Court, rule 4.447; People v. Sinclair (2008) 166 Cal.App.4th 848, 854-855 ["Subdivision (g) of section 186.22 accords the trial court discretion to strike a gang enhancement 'where the interests of justice would best be served' "].) Accordingly, this matter must be remanded for resentencing.
While not raised by either party, our review of the record discloses additional sentencing errors that require correction on remand. At the sentencing hearing, the trial court selected the attempted murder offense (count three) as the principal offense for both defendants and imposed a sentence for that offense (five and nine years, respectively), plus an additional 25 years to life for the firearm enhancement. (§ 12022.53, subd. (d).) The court then stayed the defendants' respective sentences as to the remaining counts (counts one and two) under section 654 but failed to orally pronounce a sentence for those counts, including a term for the applicable enhancements found true by the jury, and stay execution of the sentence.
It is well settled that when a court determines that a conviction is subject to section 654, it must impose a sentence and then stay the execution of the duplicative sentence, the stay to become permanent upon defendant's service of the portion of the sentence not stayed. (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Alford (2010) 180 Cal.App.4th 1463, 1469; People v. Salazar (1987) 194 Cal.App.3d 634, 640; People v. Niles (1964) 227 Cal.App.2d 749, 755-756.) "This procedure ensures that the defendant will not receive 'a windfall of freedom from penal sanction' if the conviction on which the sentence has not been stayed is overturned." (Salazar, at p. 640.) The trial court thus imposed an unauthorized sentence by failing first to impose a sentence on counts one and two and then stay execution of those sentences. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327; see People v. Miller (1977) 18 Cal.3d 873, 886 ["When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable"]; accord, People v. Deloza (1998) 18 Cal.4th 585, 591-592.) Because this constituted an unauthorized sentence, it may be corrected at any time. (People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13 [it is well established that the appellate court can correct a legal error resulting in an unauthorized sentence, including a misapplication of § 654, at any time].)
In addition, the trial court erred by failing to orally pronounce a term for each of the enhancements found true by the jury as to defendants on the attempted murder count (i.e., count three). The trial court was required to impose and then stay execution of all the enhancements found true under section 12022.53. (See Gonzalez, supra, 43 Cal.4th at pp. 1127-1130 ["We conclude section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements . . . that were found true for the same crime must be imposed and then stayed"].)
The trial court also erred in failing to impose or strike the gang enhancement under section 186.22, subdivision (g) with respect to Le on the attempted murder count. Where a principal in a gang offense also personally discharges the weapon, as here, the rule is as follows: "A defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 [i.e., the gang enhancement] and the increased punishment provided for in section 12022.53" for firearm enhancements. (Brookfield, supra, 47 Cal.4th at p. 590; see § 12022.53, subd. (e)(2), ["An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense"].)
V
Clerical Errors
Sing contends that the abstract of judgment must be corrected to reflect that he was sentenced to the lower term on the attempted murder offense, not the upper term. We agree.
" '[T]he certified abstract of the judgment constitutes the commitment. [Citations.] It is thus the order sending the defendant to prison and "the process and authority for carrying the judgment and sentence into effect." [Citations.]' [Citation.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.) "It is, of course, important that courts correct errors and omissions in abstracts of judgment." (Ibid.) "When an abstract of judgment does not reflect the actual sentence imposed in the trial judge's verbal pronouncement, [an appellate] court has the inherent power to correct such clerical error on appeal, whether on [its] own motion or upon application of the parties." (People v. Jones (2012) 54 Cal.4th 1, 89.)
The trial court sentenced Sing to the lower term of five years on the attempted murder count. (See § 664; People v. Lee (2003) 31 Cal.4th 613, 616 ["as a general matter, a person guilty of attempted murder must be punished by imprisonment for five, seven, or nine years"].) However, the abstract of judgment reflects that the five-year term imposed for this offense was the upper term, not the lower term. Accordingly, following resentencing, the trial court shall prepare a corrected abstract of judgment that reflects that Sing was sentenced to the lower term on the attempted murder offense.
Finally, our review of the record discloses additional clerical errors that must be corrected. As to both defendants, the trial court imposed a court operations assessment of $120 (§ 1465.8) and a conviction assessment of $90 (Gov. Code, § 70373). However, the defendants' respective abstracts of judgment reflect a court operations assessment of $40 and a conviction assessment of $30.
DISPOSITION
We conditionally reverse the judgment and remand the matter to the juvenile court for a transfer hearing wherein the court will determine defendants' fitness for treatment within the juvenile justice system. (Welf. & Inst. Code, § 707.) If defendants are found unfit for juvenile court treatment, the case will be transferred to adult court and their convictions and sentences reinstated. The trial court shall then exercise its newly-granted discretion under Senate Bill 620 to determine whether any of the firearm enhancements imposed under section 12022.53 should be stricken or dismissed, and correct the sentencing and clerical errors we have identified. The trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. If the trial court declines to exercise its discretion to dismiss or strike the 25 years to life firearm enhancements imposed under section 12022.53, it must then determine, pursuant to Franklin, whether defendants were afforded an adequate opportunity to make a record of information that will be relevant to the Parole Board at their eventual youth offender parole hearings.
If the juvenile court determines that defendants are fit for juvenile court treatment, the juvenile court is ordered to treat defendants' convictions as juvenile adjudications and impose an appropriate juvenile disposition after a dispositional hearing. (Welf. & Inst. Code, §§ 702 [§ 602 wardship determination], 706 [disposition hearing].)
HULL, Acting P. J. We concur: ROBIE, J. HOCH, J.