Opinion
C087800
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. ROBERT GENE McCORMACK, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE012920)
During an altercation between defendant Robert Gene McCormack's girlfriend (Shirley Jones) and her former boyfriend, Kert Lackey, defendant hit Lackey with a baseball bat, retrieved a gun from his bedroom, and shot and killed Lackey. A jury found defendant guilty of second degree murder and being a felon in possession of a firearm.
On appeal, defendant argues that the trial court erred in finding that he was previously convicted of a serious felony, erred in instructing the jury, and erred in failing to stay his sentence for firearm possession. He adds that we must remand to provide the trial court the opportunity to dismiss his five-year recidivist enhancement and identifies multiple sentencing errors.
We agree that multiple sentencing errors occurred, and the case must be remanded to allow the trial court to exercise its discretion to dismiss the five-year enhancement. We modify the judgment to correct errors in pronouncement, affirm the judgment as modified, and remand for exercise of discretion, possible resentencing, and preparation of a new abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Shooting
Defendant and Lackey knew each other for many years. Jones dated Lackey from 2010 to 2013, and in 2013 Jones began dating defendant. In April 2016 Jones and defendant moved into a house together in Sacramento.
In approximately February 2016, Lackey began contacting Jones with increasing frequency. Defendant became aware that Jones and Lackey were talking; while he was not "thrilled about it," "he went along." Eventually Lackey began visiting Jones, typically during the day when defendant was not home.
In June 2016 Jones asked defendant if Lackey could come over for dinner and bring them marijuana. Defendant was not happy about the request, but he agreed. Defendant and Lackey drank beer in the front yard together while Jones made dinner. Defendant went inside to use the restroom, and he told Jones that Lackey had offered him cocaine. While defendant used the restroom, Jones confronted Lackey and asked him to leave. Lackey refused to leave, and he grabbed Jones by the wrists, pinning her against defendant's truck in the driveway.
Defendant saw the altercation between Lackey and Jones, and he came out of the house with a baseball bat. He hit Lackey several times with the bat, causing Lackey to release Jones and fall to one knee in the driveway. Defendant went back into the house and locked the steel security door behind him. Lackey pushed past Jones to get to the security door, and he kicked and pulled the door while threatening defendant.
Defendant went to his bedroom and retrieved a loaded handgun. Jones had purchased the gun in 2016 after she was assaulted; Jones and defendant made the mutual decision to purchase the gun, and Jones made the purchase with defendant's money. The gun was stored in an unlocked drawer in Jones's jewelry box. Defendant came outside with the gun. Defendant testified he told Lackey to leave the property and warned that he would shoot. When Lackey was "almost on" defendant, he shot and killed Lackey.
Defendant testified he threw the gun across the driveway and went to the back yard to call his mother and his boss. But after 10 hours investigating the scene, a detective found the gun in a bin near the walkway to the backyard. Defendant testified he did not put the gun in the bin and did not know how it got there. The detective who found the gun testified the gun was not damaged in the way one would expect a gun to be damaged after throwing it across an asphalt area.
When police arrived, defendant admitted to shooting Lackey, but he claimed he did so in self-defense. Defendant denied that he shot Lackey in a jealous rage.
Verdict and Prior Conviction Allegation
A jury found defendant guilty of second degree murder (Pen. Code, § 187, subd. (a); count one) and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count two). The jury found true the allegations that defendant intentionally and personally discharged a firearm proximately causing Lackey's death (§ 12022.53, subd. (d)) and that he personally used a firearm in the commission of a felony (§ 12022.5, subd. (a)).
Further undesignated statutory references are to the Penal Code.
In bifurcated proceedings, the jury found true the allegation that defendant "was previously convicted of a violation of Penal Code section 245(a)(1), assault with a dangerous or deadly weapon." The trial court then found the previous conviction constituted a serious felony, a strike. (§ 1192.7.) Additional facts related to these proceedings will be set forth in the discussion, as these findings are the subjects of a claim of error.
The trial court sentenced defendant to an indeterminate term of 15 years to life for count one, doubled to 30 years to life due to the prior strike, with a consecutive term of 25 years to life for the gun enhancement to count one. The court also sentenced defendant to a consecutive determinate term of three years for count two, doubled to six years due to the prior strike, and a consecutive five-year term for the serious felony prior.
The court awarded defendant 1,556 days of credit to be applied against his determinate sentence, based on 778 actual days of pre-sentence custody.
DISCUSSION
I
Sentencing Defendant as a Second Strike Offender
Defendant contends that the trial court erred by finding his 1998 conviction under former section 245, subdivision (a)(1) was for assault with a deadly weapon (a strike) rather than assault with force likely to produce great bodily injury (not a strike). He argues that the jury rather than the court was required to make factual findings in that regard. Alternatively, he contends the evidence was insufficient to find that he was previously convicted of a strike. He argues his entry of a guilty plea with a negotiated sentence to a violation of former section 245, subdivision (a)(1) did not require a determination as to the nature of his conviction as a strike or non-strike; thus, his plea could not now be deemed a specific admission to assault with a deadly weapon, a strike. As we explain, the jury in fact made the challenged findings and the evidence was sufficient.
A. Applicable Law
In 1998 when defendant pleaded guilty to a violation of section 245, subdivision (a)(1), the statute described two ways of committing aggravated assault within the same subdivision: (1) by use of a deadly weapon or instrument, or (2) by means of force likely to produce great bodily injury. Of these, only assault with a deadly weapon is a serious felony constituting a strike under the three strikes law. (§§ 1192.7, subd. (c)(31), 667, subd. (d)(1), 1170.12, subd. (b)(1).) "Accordingly, the mere fact of a conviction for aggravated assault under former section 245, subdivision (a)(1) would be insufficient to establish the prior conviction was a strike in any case in which the verdict or plea did not specify the precise means used to commit the offense." (People v. Learnard (2016) 4 Cal.App.5th 1117, 1122.)
In 2012 the Legislature amended section 245 by deleting the phrase "or by any means of force likely to produce great bodily injury" from subdivision (a)(1) and placing it in newly enacted subdivision (a)(4). (Stats. 2011, ch. 183, § 1.) Thus, the current version of the statute separates the strike and non-strike.
When determining whether defendant's prior conviction was for assault with a deadly weapon, "a sentencing court is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict [in the prior conviction case] or admitted by the defendant in entering a guilty plea [in the prior conviction case]." (People v. Gallardo (2017) 4 Cal.5th 120, 124.) But "when the criminal law imposes added punishment based on findings about the facts underlying a defendant's prior conviction, '[t]he Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt.' [Citation.]" (Ibid.)
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
B. Background
The prosecution submitted three documents in support of the allegation that defendant was previously convicted of assault with a deadly weapon. First, a September 1998 complaint deemed an information charged defendant with a "violation of Section 245(a)(1) of the Penal Code , a felony, committed as follows: . . . [defendant], . . . did willfully and unlawfully commit an assault upon [the victim], with a deadly weapon, to wit, a frying pan, and by means of force likely to produce great bodily injury. [¶] It is further alleged that the above offense is a serious felony within the meaning of Penal Code Section 1192.7(c)(23)." The clause "and by means of force likely to produce great bodily injury" was stricken. Second, a "Minute Order - Plea," dated November 16, 1998, reflected that defendant pleaded guilty to a violation of "[section] 245(a)(1) PC (CT 1)." Third, a "Minute Order & Order of Probation," signed by the court and dated December 14, 1998, reflected that defendant was convicted on November 16, 1998, of "CT 1 PC 245(A)(1) FEL Guilty by Plea," and, on the next line, "P.C. 1192.7(C)(23)."
Section 1192.7, subdivision (c)(23) defines a serious felony in part as "any felony in which the defendant personally used a dangerous or deadly weapon."
At the bifurcated jury trial on the prior conviction, Deputy District Attorney Brad Ng was called to testify about the significance of these documents. Ng testified that the section 1192.7, subdivision (c)(23) notation on the probation minute order demonstrated that defendant personally used a dangerous or deadly weapon in the commission of the offense. And, Ng testified, because defendant personally used a dangerous or deadly weapon, he was convicted of assault with a deadly weapon and not assault by means likely to produce great bodily injury. Ng also testified that striking the clause "and by means of force likely to produce great bodily injury" in the information was a common way to indicate the specific theory of the crime, here assault with a deadly weapon.
The prosecution argued to the jury, "That certified [minute order] clearly shows Mr. McCormack entered a guilty plea for violation of Penal Code section 245 (a)(1) with the allegation that he personally used a deadly weapon. So I just ask that you find that allegation to be true."
The trial court instructed the jury in part: "The People have alleged that the defendant was previously convicted of another crime. It has already been determined that the defendant is the person named in [the admitted documents]. You must decide whether the evidence proves that the defendant was convicted of the alleged crime. [¶] The People allege defendant was convicted of felony violation of Penal Code section 245(a)(1) on or about September 28, 1998, case number 98F07378."
In returning a true finding, the jury signed a verdict form that read: "We, the jury in the above-entitled action, find the allegation that the defendant, Robert McCormack, was previously convicted of a violation of Penal Code section 245(a)(1), assault with a dangerous or deadly weapon, to be true." The trial court then found "that the prior conviction certifying Mr. McCormack in case 98F07378 is a strike, is a serious felony within the meaning of [section] 1192.7."
C. Analysis
As we have described in detail, the jury rather than the court found defendant pleaded to assault with a deadly weapon. Ng's testimony set forth the evidence supporting the conclusion that defendant had in fact entered his plea to assault with a deadly weapon. The prosecution then argued to the jury that the evidence showed defendant was previously convicted of violating section 245, subdivision (a)(1), with the allegation that he personally used a deadly weapon. Most importantly, the jury specifically found that defendant "was previously convicted of a violation of Penal Code section 245(a)(1), assault with a dangerous or deadly weapon." Because the jury, not the court, found defendant was previously convicted of assault with a deadly weapon (which is a strike as a matter of law), the court did not engage in impermissible judicial factfinding.
Further, substantial evidence supports the jury's finding. Defendant relies on Descamps v. United States (2013) 570 U.S. 254, in which the high court concluded that a prosecutor's reference to a legally irrelevant fact could not subject a defendant to increased punishment under the Armed Career Criminal Act of 1984 (ACCA) (18 U.S.C. § 924(e)). The ACCA prescribes increased penalties for certain firearm offenses if the defendant has three or more prior convictions for specified offenses, including burglary. (Taylor v. United States (1990) 495 U.S. 575, 599.) At issue in Descamps was whether a conviction for burglary in California qualified as a burglary as defined by the ACCA. Unlike the ACCA's "generic burglary" statute, the California burglary statute did not require proof of unlawful or unprivileged entry, and therefore it proscribed a broader range of conduct than did the ACCA. (Descamps, at pp. 264-265.) To determine whether the defendant's California burglary conviction qualified as a generic burglary for ACCA purposes, the trial court reviewed a transcript from the defendant's plea colloquy, in which the prosecutor stated that "the crime ' "involve[d] the breaking and entering of a grocery store." ' " (Id. at p. 259.) The court found the prosecutor's reference to the underlying conduct to be sufficient to show that the defendant's entry had been unlawful or unprivileged.
The high court reversed. It observed that California's burglary statute is not divided into lawful and unlawful entry alternatives, and therefore the prosecutor's reference to breaking and entering had no legal consequence. (Descamps v. United States, supra, 570 U.S. at pp. 264-265.) The court continued, "Our decisions authorize review of the plea colloquy or other approved extra-statutory documents only when a statute defines burglary not (as here) overbroadly, but instead alternatively, with one statutory phrase corresponding to the generic crime and another not. In that circumstance, a court may look to the additional documents to determine which of the statutory offenses (generic or non-generic) formed the basis of the defendant's conviction." (Id. at p. 265.)
Unlike the California burglary statute at issue in Descamps, as discussed, former section 245, subdivision (a)(1) could be committed alternatively (1) by use of a deadly weapon or instrument, or (2) by means of force likely to produce great bodily injury. In the case of a statute with alternative elements, Descamps authorizes the factfinder to look at additional documents to determine which alternative element served as the basis for the prior conviction. Our Supreme Court has expressly followed the high court's guidance (People v. Gallardo, supra, 4 Cal.5th at p. 135); defendant's reliance on Descamps is misplaced. Here, the jury considered additional documents and determined that defendant was previously convicted of assault with a deadly weapon. Substantial evidence supports the jury's finding.
II
Heat of Passion Pinpoint Instruction
Defendant contends the trial court's pinpoint instruction regarding heat of passion was confusing because it omitted a word essential to the instruction's meaning, lessened the prosecution's burden by instructing the jury that heat of passion required defendant to act in the "complete absence of judgment," and deprived him of due process and a fair trial. We agree that the pinpoint instruction was given in error, but we conclude the error was harmless.
A. The Law
The trial court has the duty " ' "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.]' " (People v. Kondor (1988) 200 Cal.App.3d 52, 56.) Appellate courts have repeatedly cautioned against using language from appellate decisions in jury instructions. (See, e.g., People v. Colantuono (1994) 7 Cal.4th 206, 221, fn. 13 ["The discussion in an appellate decision is directed to the issue presented. The reviewing court generally does not contemplate a subsequent transmutation of its words into jury instructions and hence does not choose them with that end in mind. We therefore strongly caution that when evaluating special instructions, trial courts carefully consider whether such derivative application is consistent with their original usage"]; People v. Adams (1987) 196 Cal.App.3d 201, 204-205 ["Language in an appellate court opinion which may be a good statement of law or of the reasoning of the appellate court does not necessarily make a good jury instruction"]; People v. Ramirez (1974) 40 Cal.App.3d 347, 355 ["To instruct juries by the use of quotations from appellate opinions taken out of context is to court disaster"].) " 'Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that . . . is . . . predominately legal. As such, it should be examined without deference.' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1217.)
B. Background
The trial court instructed the jury with CALCRIM No. 570, the standard instruction for voluntary manslaughter based on heat of passion, which provided in part: "The defendant killed someone because of a sudden quarrel or in the heat of passion if one, the defendant was provoked; two, as a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and three, the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment."
CALCRIM No. 570 also explained: "Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it.
"While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. 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.
"If enough time passed between the provocation and the killing for an ordinary person of average disposition to cool off and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
Over defendant's objection, the trial court added a pinpoint instruction to the end of CALCRIM No. 570: "For heat of passion to exist, the anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could and did not intervene." The written version of the instruction differed slightly: "For heat of passion to exist, the anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent the judgment could and did not intervene." (Italics added.) The pinpoint instruction was a (misquoted) passage from People v. Beltran (2013) 56 Cal.4th 935, in which our Supreme Court observed that, to satisfy the provocation requirement for heat of passion, "the anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene." (Id. at p. 949, italics added.)
C. Analysis
The pinpoint instruction omitted the word "not" from the quoted passage in Beltran. As such, the instruction changed the meaning of the quoted passage and was a confusing misstatement of the law. Further, the pinpoint instruction as it was meant to read was duplicative of CALCRIM No. 570. (See People v. Bolden (2002) 29 Cal.4th 515, 558 ["A trial court need not give a pinpoint instruction if it . . . merely duplicates other instructions"].) CALCRIM No. 570 instructed the jury that, in order for heat of passion to mitigate murder to voluntary manslaughter, defendant must have been provoked to such a degree that the defendant "acted rashly and under the influence of intense emotion that obscured his reasoning or judgment" and that the provocation must have been sufficient to "cause[ ] a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." The pinpoint instruction, even if it had correctly quoted Beltran, would have added nothing to that instruction. It was error for the court to give it.
But we do not agree with defendant that the erroneous instruction lessened the prosecution's burden by instructing the jury to find heat of passion voluntary manslaughter only in the complete absence of judgment. CALCRIM No. 570 requires that the defendant act "from passion rather than judgment" and "without due deliberation and reflection." Both the pinpoint instruction (without the omission) and CALCRIM No. 570 instructed the jury that, for provocation to mitigate murder to manslaughter, defendant must have acted from passion rather than from judgment, which was obscured due to the provocation. We see no difference between a standard requiring defendant to act from passion rather than from judgment and one requiring that defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene. In both circumstances, the result is the same: defendant acted from passion because the provocation obscured his judgment.
Where error has occurred, "the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility. . . . [S]uch misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Cal. Const., art. VI, § 13; [People v.] Watson [(1956)] 46 Cal.2d 818, 836.)" (People v. Breverman (1998) 19 Cal.4th 142, 165.) The same rule applies where the instructions on a lesser included crime were incompletely given. (Id. at pp. 169-170.)
When read as a whole, the jury instructions adequately informed the jury of the scope of heat of passion. Any confusion caused by the one-sentence pinpoint instruction inserted at the end of CALCRIM No. 570 would likely have been resolved by referring to the entirety of the instruction. If the jury were confused about a conflict between the provisions of the instruction as given, it was able to ask the court for clarification; it did not.
Moreover, both parties forcefully argued that heat of passion did not apply to the facts of this case. The prosecution charged defendant with murder and argued that heat of passion did not apply. And defense counsel argued, "So what I want to do now is go over the law with you first. [The prosecutor] talked about these other defenses. I'm going to start there. I'm going to make it clear, the only defense we are claiming is self-defense. [¶] . . . [¶] Again, [the prosecutor] thinks that I'm going to argue to you that this is some kind of voluntary manslaughter based on heat of passion. I'm not. It is not." Later, defense counsel concluded, "You can take a look at [the heat of passion instruction]. Bottom line is, doesn't apply. It doesn't." Additionally, defendant testified that he acted in self-defense and not from a "jealous rage." Because it is not reasonably probable that the instructional error affected the outcome, the error was harmless.
III
CALCRIM No. 371
Defendant contends the trial court erroneously instructed the jury with CALCRIM No. 371, which provided in relevant part: "If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself." Defendant contends the instruction was not supported by sufficient evidence because the gun was in plain sight and because he admitted to shooting Lackey immediately after police arrived at the scene. We disagree.
" 'The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.] "It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference." ' " (People v. Alexander (2010) 49 Cal.4th 846, 920-921.) To warrant a consciousness of guilt instruction, " 'there need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference.' " (Id. at p. 921.)
Substantial evidence supports the suppression of evidence instruction. Detectives found the gun in a bin on the walkway to the back yard after 10 hours of searching defendant's property. While defendant testified that he threw the gun across the driveway after the shooting, a detective testified that the gun showed no signs of having been thrown across an asphalt area. And although defendant admitted to police that he shot Lackey, the jury was permitted to weigh that fact against the evidence that he hid the gun and thereby successfully slowed attempts to find it. There is substantial evidence to support the instruction.
IV
Section 654Defendant next contends his sentence for felon in possession of a firearm must be stayed under section 654 because the firearm possession occurred during a single and continuous course of conduct and shared a criminal purpose with the murder. As we explain, this is not the case.
A. The Law
Section 654, subdivision (a) provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 applies not only where there was one act in the ordinary sense, but also where there was a course of conduct that violated more than one statute but nevertheless constituted an indivisible transaction. (People v. Perez (1979) 23 Cal.3d 545, 551.) However, if the evidence discloses that a defendant entertained multiple criminal objectives, he may be punished for the independent violations committed in pursuit of each objective. (Ibid.) " 'It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.' " (People v. Hicks (1993) 6 Cal.4th 784, 789.)
" 'The defendant's intent and objective are factual questions for the trial court.' " (People v. Coleman (1989) 48 Cal.3d 112, 162.) Trial courts have broad latitude to determine whether a defendant harbored one or more objectives, and we uphold their findings on appeal if there is any substantial evidence in the record to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) " 'We review the court's determination of [a defendant's] "separate intents" for sufficient evidence in a light most favorable to the judgment, and presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]' [Citation.]" (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.) Here, the trial court sentenced defendant consecutively on counts one and two because "the crimes were predominately independent of one another."
Whether a violation of section 29800, prohibiting a convicted felon from possessing a firearm, constitutes a divisible transaction from another offense in which defendant possessed or used a firearm depends upon the facts and circumstances of the case. The elements of felon in possession are conviction of a felony and knowing possession, custody, or control of a firearm. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1052.) " 'A defendant possesses a weapon when it is under his dominion and control. [Citation.] A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others. [Citations.]' [Citation.] 'Implicitly, the crime is committed the instant the felon in any way has a firearm within his control.' " (Ibid.) " 'The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: [for example] his residence.' " (People v. Johnson (1984) 158 Cal.App.3d 850, 854.) Possession may be shared with others. (People v. Neese (1969) 272 Cal.App.2d 235, 245.)
"[S]ection 654 will not bar punishment for both firearm possession by a felon (§ 12021, subd. (a)(1) [(now § 29800)]) and for the primary crime of which the defendant is convicted" where the convicted felon "commits a crime using a firearm, and arrives at the crime scene already in possession of the firearm, [so that] it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime." (People v. Jones (2002) 103 Cal.App.4th 1139, 1141; see also People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412-1414; People v. Garcia (2008) 167 Cal.App.4th 1550, 1565.)
B. Analysis
Here, there is substantial evidence that defendant had constructive possession of the gun before he developed the intent to kill Lackey. At the time of the murder, the gun was stored in an unlocked drawer in defendant's bedroom. During the incident, defendant was able to quickly access the gun without Jones's permission or help. Although the record does not specify when Jones and defendant began storing the gun in their bedroom, it is reasonable to believe the gun was stored in the unlocked drawer well before defendant developed the intent to kill Lackey. Therefore, we are easily able to infer that the gun was under defendant's dominion and control well before defendant developed the intent to kill Lackey during their visit that night. There is substantial evidence defendant possessed the gun as a separate and antecedent offense, carried out with an independent, distinct intent from the murder.
V
Senate Bill No. 1393
Defendant contends Senate Bill No. 1393 (2017-2018 Reg. Sess.) applies retroactively to his case. The People properly concede the matter.
On September 30, 2018, the Governor signed Senate Bill No. 1393, which, effective January 1, 2019, amends sections 667, subdivision (a) and 1385, subdivision (b) to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony allegation for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the pre-2019 versions of these statutes, the court was required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony" (§ 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667" (§ 1385, subd. (b)).
The statutory changes of Senate Bill No. 1393 apply retroactively to any case that is not final on January 1, 2019, under the rule of In re Estrada (1965) 63 Cal.2d 740. "The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not." (People v. Conley (2016) 63 Cal.4th 646, 657.)
The same inference of retroactivity applies when an amendment ameliorates the possible punishment. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) When a statutory amendment " 'vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty,' " there is "an inference that the Legislature intended retroactive application 'because the Legislature has determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances.' " (Ibid., quoting People v. Francis (1969) 71 Cal.2d 66, 76.)
Under the Estrada rule, as applied in Francis and Lara, we infer as a matter of statutory construction that the Legislature intended Senate Bill No. 1393 to apply to all cases not yet final on January 1, 2019. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Accordingly, we remand the matter to the trial court for the limited purpose of the exercise of its discretion as to whether to strike the five-year enhancement.
VI
Sentencing Errors
Defendant has identified multiple sentencing errors, as have the People. We have identified several, and we shall correct them.
In the interests of judicial economy, we have proceeded in the absence of supplemental briefing. Any aggrieved party may invoke the remedy provided by Government Code section 68081. --------
First, the trial court orally imposed a five-year enhancement for the serious felony prior, but the court incorrectly identified the statutory basis for the enhancement as section 667, subdivision (c) rather than section 667, subdivision (a)(1). The abstract of judgment reflects that error, and it incorrectly lists the enhancement on the indeterminate abstract rather than on the determinate abstract. This error should be corrected on remand if the enhancement is not stricken.
Second, the trial court purported to award 778 days of presentence conduct credits against defendant's determinate sentence. But a defendant convicted of murder does not accrue conduct credits. (§ 2933.2, subds. (a), (c); People v. Wheeler (2003) 105 Cal.App.4th 1423.) The abstract of judgment omits the conduct credits and does not require amendment, but the judgment must be modified to correct the error.
Third, the indeterminate abstract of judgment reflects a sentence of 25 years to life pursuant to section 667, subdivision (e)(1) that the trial court did not impose. This reference must be removed.
Finally, the abstract of judgment reflects that the trial court imposed a $80.00 court operations assessment (§ 1465.8) and a $60.00 conviction assessment (Gov. Code, § 70373). But the court did not orally impose those fees, and therefore it was clerical error to include those fees on the abstract of judgment.
"In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. [Citation.] To the extent a minute order diverges from the sentencing proceedings it purports to memorialize, it is presumed to be the product of clerical error. [Citation.] Likewise, the abstract of judgment ' "cannot add to or modify the judgment which it purports to digest or summarize." ' [Citations.] As with other clerical errors, discrepancies between an abstract and the actual judgment as orally pronounced are subject to correction at any time, and should be corrected by a reviewing court when detected on appeal." (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)
Because we are remanding for the trial court's consideration of the new law, we also direct the court to either orally impose the two fees at issue or remove them from the abstract of judgment after providing the parties an opportunity to be heard.
DISPOSITION
The judgment is modified to strike the conduct credit award and correct the statutory basis for the prior serious felony enhancement in a manner consistent with this opinion. As modified, the judgment is affirmed. The matter is remanded to the trial court for the limited purposes of the exercise of discretion regarding the prior serious felony enhancement and consideration of the two unimposed fees in a manner consistent with this opinion. The trial court is directed to prepare a new abstract of judgment at the conclusion of proceedings on remand and to forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Murray, J.