Opinion
H044508
10-15-2018
THE PEOPLE, Plaintiff and Respondent, v. RICKEY PAUL MURRAY, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on October 15, 2018, be modified in the following particulars:
On page 15, at the end of the third full paragraph, add the following: For these same reasons, we conclude beyond a reasonable doubt that the mutual combat instruction did not contribute to the verdict. (See Chapman v. California (1967) 386 U.S. 18, 24.)
There is no change in the judgment. The petition for rehearing is denied.
/s/_________
BAMATTRE-MANOUKIAN, J.
/s/_________
ELIA, ACTING P.J.
/s/_________
MIHARA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161605A)
I. INTRODUCTION
Defendant Rickey Paul Murray appeals after a jury convicted him of 12 offenses involving weapons possession, narcotics possession, and shooting a firearm. The jury also found true several firearm allegations. The trial court sentenced defendant to an aggregate prison term of 15 years 8 months. The aggregate sentence included a consecutive term for one of the firearm use allegations and consecutive terms for three counts of possession for sale of different narcotics.
On appeal, defendant contends: (1) Penal Code section 654 required the trial court to stay two of the three terms imposed for possession for sale of narcotics; (2) three of his shooting-related convictions must be reversed because there was no substantial evidence to warrant a jury instruction on mutual combat; (3) a remand for resentencing is required so the trial court can exercise its discretion to strike the firearm use enhancement; and (4) the abstract of judgment reflects the incorrect number of custody credits.
We reject defendant's claims of Penal Code section 654 error and instructional error, but we will remand the matter to give the trial court an opportunity to exercise its discretion to strike the firearm use enhancement, and we will order additional custody credits be reflected on the abstract of judgment.
II. BACKGROUND
On September 30, 2017, defendant was involved in a shooting at a hotel in Salinas. After the shooting, a search of defendant's hotel room revealed he was in possession of cocaine, methamphetamine, and heroin. At trial, defendant claimed that he shot in self-defense and that he possessed the narcotics for personal use.
A. The Shooting
At about 10:15 p.m. on September 30, 2017, Salinas Police officers responded to a report of shots fired at a hotel on North Main Street. The hotel was known for drug trafficking and for being frequented by people with guns.
Officers located a bullet fragment next to a parked car, and they observed a bullet strike on the hood of the car. There were also bullet strikes on the hood of an SUV parked next to the car. Officers found bullet strikes on the motel exterior, including the office area. They found a bullet jacket and a fired bullet in the parking lot, along with a .380-caliber shell casing.
Surveillance video showed some males kicking and knocking on hotel doors at about 10:10 p.m. At about 10:12 p.m., a male wearing a gray shirt and white pants walked past the hotel office. A few minutes later, a Honda Accord drove into the hotel parking lot. There were at least two people in the Accord: the driver and a front seat passenger.
The time stamp on the surveillance video was about 16 minutes later than the actual time. Times stated in this opinion are the corrected times.
About 20 seconds after the Accord parked, defendant walked past the Accord. Defendant looked inside the Accord. In response to a gesture by the Accord driver, defendant put his hands up with his palms forward. Defendant then ran to a hotel room. Defendant went inside the hotel room for a few seconds, and then exited, carrying a gun behind his back.
Meanwhile, the male in the gray shirt walked up to the Accord and began speaking to the passenger and driver. The passenger and driver got out of the Accord, and the driver pulled out a gun from his waistband.
Defendant walked back from the hotel room towards the Accord, still holding the gun behind his back. When he neared the Accord, he took a "shooting stance" and exchanged gunfire with the driver; both men were crouched on opposite sides of a parked car. The male in the gray shirt and the passenger were crouched behind another car; neither was shooting.
At trial, an officer who had reviewed the surveillance video testified that it appeared that the Accord driver fired first, but only after defendant pointed his firearm at the Accord driver.
After the shooting, the male in the gray shirt and the passenger walked away, and the Accord driver drove away. Defendant ran back into the hotel room. The police arrived and used a bullhorn to order defendant to exit the hotel room. After about 15 minutes, defendant and Christina Hampton came out of the hotel room. Defendant and Hampton were both arrested.
When interviewed by the police, defendant denied having participated in the shooting, despite the police telling him that there was surveillance video. Defendant never claimed to have acted in self-defense, even after an officer suggested that defendant might have shot "for protection" after the "other guys" shot at him first.
B. Search of the Hotel Room
Officers obtained a search warrant for defendant's hotel room. They found a loaded handgun concealed in a bag of cat food. The handgun's serial number had been removed.
Inside of a refrigerator, officers found two plastic baggies of suspected heroin on top of a plastic Tupperware container. The combined weight of the two baggies of heroin was 8.8 grams. Inside of a dresser drawer, officers found another Tupperware container, which held four baggies of methamphetamine, two baggies of cocaine, and a baggie of heroin. One baggie contained 12 bindles of methamphetamine with a combined weight of 7.7 grams. A second baggie contained 15.1 grams of methamphetamine crystals. A third baggie contained 21.3 grams of "large shards" of methamphetamine. A fourth baggie contained 24 bindles of methamphetamine with a combined weight of 4.8 grams. A fifth baggie contained four bindles of cocaine with a combined weight of 1.6 grams. A sixth baggie contained 4.1 grams of rock and powder cocaine. The heroin was wrapped in 10 pieces of wax paper, and its combined weight was 3.2 grams.
A notebook was located inside the hotel room. The notebook contained a "pay-owe sheet." Defendant's cell phone contained another pay-owe document referencing people named Marisol, Poncho, Dope Fiend, and Lo Lo. No drug paraphernalia was found in the hotel room.
C. Defense Case
Hampton, defendant's girlfriend, testified that she and defendant were living in the hotel together on September 30, 2016. At about 10:00 p.m. that evening, Hampton noticed a man standing by the front door of a different room at the hotel, where her friend was staying. Hampton saw the man and another person kicking on her friend's door. Hampton went over and told them to leave, then returned to her room. One of the men started banging on Hampton's door. Scared, she called defendant and "told him what was going on."
Later that evening, Hampton saw one of the men shooting a gun at defendant. She also saw defendant shooting. However, she later told the police that she "didn't know anything about a gun." She did not tell the police about someone kicking on her door, about being scared, or about calling defendant. Neither she nor defendant ever called 911.
Hampton was using cocaine at the time, but she was not selling drugs and did not know there were drugs in the hotel room.
Defendant testified that he was at Starbucks when Hampton called him. He drove back to the hotel, parked across the street, and ran towards the hotel. When he saw the Accord driver point a gun at him from inside a car, defendant put up his hands. He could see another person at that point, too. He was scared for himself and for Hampton.
Defendant ran back to the hotel room but looked back at the men in the parking lot. He saw them coming down the hallway, so he went into his room and shut the door. He "went for" his gun and told Hampton to go lie down in the bathtub, thinking the men were going to come kick in the hotel door or shoot through a window. He did not intend to shoot anyone; he planned to show the Accord driver that he had a gun, too.
Defendant left his hotel room with the gun behind his back. He walked towards the men, who were standing near a vending machine. When defendant showed his gun to the men, one of them raised his gun and fired at defendant. Defendant ducked and fired back.
Defendant admitted that when the police interviewed him, he denied being one of the shooters, even when an officer suggested that he might have shot in self-defense. Defendant had prior felony convictions and was not supposed to possess any firearms.
Defendant admitted he had possessed the narcotics in the hotel room, claiming he planned to use them himself.
D. Rebuttal Evidence
When a defense investigator interviewed Hampton in November 2016, Hampton did not mention having a friend in another hotel room. Hampton described seeing someone shoot at defendant from inside a car. She saw defendant walk towards the car and "start firing back."
An investigator from the District Attorney's office retrieved photographs from one of defendant's cell phones and found photographs of various firearms.
E. Verdicts and Sentence
Defendant was convicted of two weapons possession charges: possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 1) and possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1); count 2).
Defendant was convicted of six narcotics offenses: one count of possession of cocaine for sale (Health & Saf. Code, § 11351; count 3), one count of possession of heroin for sale (Health & Saf. Code, § 11351; count 4), one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378); count 5), and three counts of possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); counts 6-8).
Defendant was convicted of four shooting-related charges: assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); count 9), shooting at an inhabited dwelling (Pen. Code, § 246; count 10), shooting at an unoccupied vehicle (Pen. Code, § 247, subd. (b); count 11), and discharging a firearm with gross negligence (Pen. Code, § 246.3, subd. (a); count 12).
The jury found true allegations that defendant was armed with a firearm (Pen. Code, § 12022, subd. (c)) in the commission of the three counts involving possession for sale of narcotics (counts 3-5), and that defendant personally used a firearm (Pen. Code, § 12022.5, subd. (a)) in the commission of the assault, shooting, and firearm discharge counts (counts 9-12).
The trial court sentenced defendant to 15 years 8 months in prison. The trial court selected count 9 (assault with a semiautomatic firearm) as the principal term and imposed the six-year middle term for that offense, with a consecutive three-year term for the associated firearm use enhancement. The trial court imposed consecutive one-year terms for counts 3 and 4 (possession of cocaine for sale and possession of heroin for sale), and a consecutive 8-month term for count 5 (possession of methamphetamine for sale). Finally, the trial court imposed consecutive 16-month terms for the arming allegations associated with counts 3, 4, and 5. The terms for all other counts were either imposed concurrently or were stayed pursuant to Penal Code section 654. The trial court dismissed count 12, finding it was a lesser-included offense of count 10.
The trial court held three sentencing hearings.
III. DISCUSSION
A. Penal Code Section 654
Defendant contends the trial court was required to stay the terms for two of his three convictions for possession for sale of narcotics.
1. Legal Standards
"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." (Pen. Code, § 654, subd. (a).) Thus, Penal Code section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza).) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
A trial court's finding of separate intents or objectives is "a factual determination that must be sustained on appeal if supported by substantial evidence [citation]." (People v. Osband (1996) 13 Cal.4th 622, 730.)
2. Analysis
At the sentencing hearing, the trial court cited People v. Monarrez (1998) 66 Cal.App.4th 710 (Monarrez) when it imposed consecutive terms for count 3 (possession of cocaine for sale), count 4 (possession of heroin for sale), and count 5 (possession of methamphetamine for sale).
In Monarrez, the police searched a residence and found narcotics packaged for sale. The defendant was convicted of possession for sale of heroin and possession for sale of cocaine, and the trial court imposed separate sentences for those offenses. (Monarrez, supra, 66 Cal.App.4th at p. 712.) The appellate court noted that prior cases had held "that Penal Code section 654 'does not preclude multiple punishment for simultaneous possession of various narcotic drugs.' [Citation.]" (Id. at p. 714.) The court agreed with those cases and found substantial evidence of the defendant's different intents and objectives in possessing the two types of narcotics for sale. "The evidence supported a finding that defendant had been engaged in multiple sales and intended to make multiple sales of the narcotics which he possessed." (Id. at p. 715.)
The Monarrez court added an additional reason why separate punishment was warranted: "The narcotics are separately classified and regulated by the Legislature; they have different effects and pose different hazards to society." (Monarrez, supra, 66 Cal.App.4th at p. 715.)
Defendant contends that the reasoning of Monarrez "does not survive" the California Supreme Court's more recent decision in People v. Jones (2012) 54 Cal.4th 350 (Jones). In Jones, the defendant was convicted of three firearm possession offenses based on his possession of one gun. (Id. at p. 352.) The trial court imposed separate sentences for the three offenses, and the appellate court upheld those separate sentences on appeal, but the California Supreme Court reversed, holding that Penal Code section 654 prohibited multiple punishment because the defendant's convictions "were based on a single act." (Jones, supra, at p. 360.) The Jones court rejected the notion that multiple punishment is permitted where a single act is punishable under multiple statutes "directed at distinct societal evils." (Jones, supra, at p. 356.)
The California Supreme Court recognized that "[i]n some situations, physical acts might be simultaneous yet separate for purposes of [Penal Code] section 654." (Jones, supra, 54 Cal.4th at p. 358.) For example, " 'simultaneous possession of different items of contraband' are separate acts" that may be subject to multiple punishment, since the possession of each item is " 'a separate act of possession.' [Citation.]" (Ibid.) The court specified that it did not "intend to cast doubt on the cases so holding." (Ibid.)
Defendant asserts that despite the Jones court's comments, its rationale "strongly undermines" the cases—including Monarrez—finding that Penal Code section 654 does not bar multiple punishment where the defendant has convictions for possession of multiple items.
We agree that Jones does undermine the additional reason Monarrez upheld multiple punishment for possession of different narcotics—i.e., the fact that different statutes apply to different substances. (See People v. Chung (2015) 237 Cal.App.4th 462, 471.) However, Jones does not undermine the main rationale of Monarrez: that the defendant had different intents and objectives in possessing the two types of narcotics for sale, since the evidence supported a finding that the Monarrez defendant had previously engaged in multiple sales and intended to make "multiple sales of the narcotics which he possessed." (Monarrez, supra, 66 Cal.App.4th at p. 715.)
In the present case, substantial evidence supports a finding that defendant had multiple intents and objectives in possessing the three different narcotics substances. In light of the large amount of narcotics and the many separate packages, a reasonable trier of fact could find that defendant intended to make multiple sales of the narcotics to multiple different people. (Cf. In re Adams(1975) 14 Cal.3d 629, 635 [defendant "simultaneously transported a variety of illegal drugs with the single intent and objective of delivering them to" one person].) Defendant was not convicted of the three narcotics possession offenses based on "a single act or omission" (Deloza, supra, 18 Cal.4th at p. 591) but rather based on "simultaneous yet separate" physical acts (Jones, supra, 54 Cal.4th at p. 358). Multiple punishment was therefore not prohibited by Penal Code section 654.
B. Mutual Combat Instruction
Defendant contends the trial court erred by instructing the jury on mutual combat, claiming there was no substantial evidence to support that instruction. Defendant contends the error requires reversal of counts 9, 10, and 11 (assault with a semiautomatic firearm, shooting at an inhabited dwelling, and shooting at an unoccupied vehicle).
1. Proceedings Below
The trial court instructed the jury on self-defense and defense of another as to counts 9 through 12. The instruction told the jury that there were three requirements for finding that defendant acted in lawful self-defense or defense of another: (1) "the defendant reasonably believed that he or Christina Hampton was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully;" (2) "the defendant reasonably believed that the immediate use of force was necessary to defend against that danger;" and (3) "the defendant used no more force than was reasonably necessary to defend against that danger."
The trial court then instructed the jury on mutual combat pursuant to CALCRIM No. 3471: "A person who engages in mutual combat or who starts a fight has a right to self-defense only if: One, he actually and in good faith tried to stop fighting. Two, he indicated by word or by conduct to his opponent in a way that a reasonable person would understand that he wanted to stop fighting and that he had stopped fighting and, three, he gave his opponent a chance to stop fighting. If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] However, if the defendant used only non[-]deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force, and was not required to try to stop fighting, or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied, and must occur before the claim to self-defense arose."
When the trial court indicated it would give CALCRIM No. 3471, defendant's trial counsel commented, "I think we have to." But during argument to the jury, defendant's trial counsel argued, "This isn't a mutual combat situation . . . ."
2. Forfeiture/Invited Error
The Attorney General contends defendant's claim is forfeited by his failure to object, and that the claim is barred by the invited error doctrine because defendant's trial counsel "acquiesced in the trial court's decision" to give CALCRIM No. 3471.
Defendant acknowledges there was no objection in the trial court, but he argues no objection was needed to preserve his claim for appeal because the instruction affected his substantial rights. (See Pen. Code, § 1259.) He contends the invited error doctrine does not apply because the record fails to show his trial counsel had a tactical reason for acquiescing in the instruction.
We agree that the invited error doctrine does not apply on these facts. (See People v. Moon (2005) 37 Cal.4th 1, 28 [invited error doctrine does not apply if "the record fails to show counsel had a tactical reason for requesting or acquiescing in the instruction"].) And although defendant failed to object to the instruction in the trial court, we will address the merits of his claim in order to determine whether the error affected his substantial rights (see People v. Franco (2009) 180 Cal.App.4th 713, 719) and to forestall a claim that he received ineffective assistance of counsel (see People v. Lua (2017) 10 Cal.App.5th 1004, 1014).
3. Analysis
Jury instructions that are not supported by substantial evidence should not be given. (People v. Ross (2007) 155 Cal.App.4th 1033, 1050 (Ross).) " 'It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. [Citation.]' [Citation.]" (Ibid.)
"[A]s used in this state's law of self-defense, 'mutual combat' means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities. . . . In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual." (Ross, supra, 155 Cal.App.4th at p. 1045, fn. omitted; see People v. Nguyen (2015) 61 Cal.4th 1015, 1044 (Nguyen).)
In claiming it was error to give the mutual combat instruction, defendant relies on this court's decision in Ross. In that case, the defendant engaged in "a heated exchange" with the female victim, who eventually walked over to the defendant and hit him two times. (Ross, supra, 155 Cal.App.4th at p. 1037.) The defendant then punched the victim, who subsequently needed surgery and suffered from blurred vision. The defendant was convicted of battery causing serious bodily injury and assault by means of force likely to produce great bodily injury. (Id. at p. 1041.)
On appeal, the Ross defendant argued that the trial court should not have instructed the jury on mutual combat, and this court agreed: "[O]n this record, viewed in its entirety, no reasonable juror could conclude beyond a reasonable doubt that defendant and [the victim] were engaged in 'mutual combat' when he punched her." (Ross, supra, 155 Cal.App.4th at p. 1050.) "Viewed most favorably to the prosecution, the evidence showed an exchange of belligerent comments culminating in an impulsive and unexpected blow by [the victim] to which defendant responded with a combination, flurry, or barrage of blows. There is simply not enough evidence for a reasonable juror to conclude beyond a reasonable doubt that when these blows were exchanged, both parties had formed the intent to engage in a fight." (Id. at p. 1052.)
In Ross, this court found that the mutual combat instruction was not harmless error. (Ross, supra, 155 Cal.App.4th at p. 1055.) First, the defendant had a prior trial in which the mutual combat instruction had not been given, and that proceeding had resulted in a mistrial. Second, the jury was not properly instructed on the meaning of "mutual combat," because that phrase had not been defined, even when the jury asked the trial court for a definition. (Id. at p. 1056.) Third, the evidence provided a basis for jurors to find that the defendant had acted in self-defense, since the victim had hit him two times and he could reasonably have expected to be hit again. (Id. at p. 1055.) Under those circumstances, there was a reasonable likelihood that the defendant would have achieved a more favorable result in the absence of the instructional error. (Ibid.; see People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
The Attorney General contends the evidence here supported the mutual combat instruction because a jury reasonably could have found that defendant and the Accord driver had an implied agreement to fight. The Attorney General notes that defendant had returned with a gun within "minutes" of the initial confrontation and that defendant and the Accord driver had exchanged gunfire within "seconds" of defendant's return to the parking lot. The Attorney General also cites two cases in which there was evidence that the defendant and victim were members of rival gangs. (See Nguyen, supra, 61 Cal.4th at p. 1044; People v. Quach (2004) 116 Cal.App.4th 294, 297.)
Defendant asserts that nothing about the interaction in the parking lot constituted an agreement to fight. He also points out there was no evidence suggesting that defendant and the Accord driver were rival gang members, and no other evidence as to any preexisting relationship between them.
For purposes of our analysis, we will assume that there was insufficient evidence to support the mutual combat instruction and proceed to examine whether the assumed error was prejudicial.
Our prejudice analysis is necessarily different from that in Ross, in several important respects. First, this case did not involve a prior trial resulting in a mistrial. Second, the jury here was properly instructed on the definition of "mutual combat," so the jury could assess whether or not the instruction applied to this case. (See Nguyen, supra, 61 Cal.4th at p. 1050 [noting that CALCRIM No. 3471 was revised after Ross to include a definition of "mutual combat"].) Third, the evidence of self-defense in this case was much weaker than the evidence of self-defense in Ross, where the victim struck the defendant first and was in a position to strike him again. Here, no such immediate danger was posed by the Accord driver, who remained sitting in his car with a gun as defendant passed by. Rather, defendant instigated the shooting by going to his hotel room, getting a gun, and approaching the Accord. Defendant also did not tell the police he acted in self-defense, even when the police suggested that scenario.
As noted above, the instruction provided: "A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied, and must occur before the claim to self-defense arose."
Defendant's prejudice argument centers on the jury's requests during deliberations and the length of deliberations. However, the number of jury requests and questions were not "numerous," and the jury did not deliberate "for a long time." The jury asked to watch the surveillance video, requested a definition of "imminent," and asked for an instruction on "stand your ground." The jury deliberated for about two hours after jury instructions were given and for about three hours 30 minutes the following day. Moreover, the fact that the jury asked to review evidence and requested further instructions is indicative of the jury's diligence, not that the case was close. (See People v. Houston (2005) 130 Cal.App.4th 279, 301.) And the time the jury spent deliberating can " 'easily be reconciled with the jury's conscientious performance of its civic duty, rather than its difficulty in reaching a decision,' " particularly in light of the number of charges in this case. (See ibid.)
In arguing prejudice, defendant also notes that during argument to the jury, the prosecutor asserted that there had been mutual combat. The prosecutor discussed the jury instruction and then argued: "Now mutual combat, when it began or continued by mutual consent or agreement. Now, in this case, probably didn't begin that way, but when they both pull out guns, they're both shooting at each other, it's not clear who, if anyone, is acting in self-defense. We've achieved a mutual combat situation."
Nothing in the foregoing argument makes it reasonably probable that the jury was misled about mutual combat. Contrary to defendant's claim, the prosecutor did not erroneously imply that defendant could not be acting in self-defense if he and the Accord driver were "shooting simultaneously." The prosecutor acknowledged that one of the shooters might be "acting in self-defense" and told the jury that mutual combat required "mutual consent or agreement." Moreover, even if we assume that the prosecutor's argument was misleading, we presume the jury followed the instructions instead. (See People v. Centeno (2014) 60 Cal.4th 659, 676.)
Finally, an examination of the record shows that it is not reasonably probable any of the jurors would have found defendant acted in self-defense or defense of another had the trial court not given the mutual combat instruction. (See Watson, supra, 46 Cal.2d at p. 836.) The evidence did not show that defendant actually or reasonably believed he was in imminent danger. Rather, the evidence showed that after defendant saw the Accord driver brandish a gun while sitting in a car in the parking lot, defendant reached a place of safety—his hotel room—but decided to return to the parking lot with his own gun concealed behind his back. Defendant also made no self-defense claim when he was contacted by the police on the night of the shooting.
In sum, we find no prejudicial error with respect to the instruction on mutual combat.
C. Firearm Use Allegations
Defendant contends remand is required so the trial court can exercise its discretion to strike the firearm enhancement imposed pursuant to Penal Code section 12022.5, subdivision (a).
At the time of the sentencing hearing in this case, Penal Code section 12022.5, subdivision (c) provided: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."
Effective January 1, 2018, Senate Bill 620 amended Penal Code section 12022.5, subdivision (c) to provide: "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. . . ." (Stats. 2017, ch. 682, § 1.)
Defendant and the People agree that the amendment to Penal Code section 12022.5 should apply retroactively to cases not yet final on appeal. (See In re Estrada (1965) 63 Cal.2d 740, 746; People v. Francis (1969) 71 Cal.2d 66, 75-76; People v. Brown (2012) 54 Cal.4th 314, 323.) At least two published appellate decisions have held Senate Bill 620 applies retroactively in cases where the judgment is not yet final. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
Defendant contends that the matter should be remanded for the trial court to exercise its discretion under Penal Code section 12022.5, subdivision (c) and Penal Code section 1385.
The Attorney General contends that a remand is unnecessary "because nothing in the record shows that the trial court would have any possible basis to exercise its discretion under [Penal Code] section 1385."
1. Proceedings Below
At the initial sentencing hearing, the trial court found defendant was presumptively ineligible for probation but indicated it would deny probation if defendant was eligible, based on the factors in California Rules of Court, rule 4.414. The trial court cited "the nature, seriousness, and circumstances of the crime" and remarked that defendant appeared to have been "firing almost randomly" and thus causing risk to anyone in the vicinity. The trial court also cited the following facts: defendant had been armed with and used a firearm, defendant was an active participant in the crime, defendant's record of criminal conduct was increasingly serious, defendant's prior performance on probation or parole was unsatisfactory, defendant was not remorseful, and defendant would be a danger to others if not imprisoned.
All further rule references are to the California Rules of Court. --------
The trial court then noted that "[i]n determining the appropriate sentence," it had found a number of factors in aggravation. (See rule 4.421.) Specifically: the crime involved a threat of great bodily harm and callousness, defendant used a weapon, the manner in which the crime was carried out indicated "some professionalism and sophistication," defendant engaged in violent conduct that indicated a serious danger to society, and defendant's prior convictions as an adult were of increasing seriousness.
The trial court found there were "perhaps" two factors in mitigation. (See rule 4.423.) First, the defendant appeared to think that he was acting in self-defense. Second, the victim was a willing participant in the incident.
The trial court next explained it had determined that some of defendant's offenses were "appropriate for consecutive sentences." (See rule 4.425.) The trial court found that the crimes of assault with a firearm (count 9) and possession of narcotics for sale while armed with a firearm (counts 6-8) were "crimes with objectives predominantly independent of each other." And, as detailed above, the trial court found that that consecutive sentences were appropriate for the three convictions of possession of narcotics for sale (counts 3-5).
2. Analysis
The Attorney General contends that in determining whether to remand the matter to allow the trial court to exercise its discretion, this court should determine whether there is a reasonable probability of a more favorable outcome for defendant. The Attorney General notes that the "reasonably probable" standard was applied in People v. Coelho (2001) 89 Cal.App.4th 861, where the sentencing error involved "a misunderstanding concerning the scope of the discretion." (Id. at p. 889.)
Since the filing of the briefs in this case, other appellate courts have addressed the question of what standard to apply in assessing whether to remand a case in light of Senate Bill 620. In People v. McDaniels (2018) 22 Cal.App.5th 420 (McDaniels), the court determined that a "remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (Id. at p. 425.) Other appellate courts have agreed that the McDaniels case sets forth the appropriate standard. (See People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.)
In determining whether remand is required under the McDaniels standard, the salient question is whether the trial court "express[ed] its intent to impose the maximum sentence permitted." (McDaniels, supra, 22 Cal.App.5th at p. 427.) "When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor." (Ibid.) Thus, in People v. McVey (2018) 24 Cal.App.5th 405, where the trial court made a "deliberate choice of the highest possible term for the firearm enhancement," the record showed "no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether." (Id. at p. 419.)
Here, the record does not "clearly indicate[]" the trial court would not have exercised its discretion to strike the firearm use allegation had the court known it had that discretion. (See McDaniels, supra, 22 Cal.App.5th at p. 425.) The trial court did not "impose the maximum sentence permitted" (id. at p. 427), and nothing in the sentencing record informs us as to whether the court would have exercised its Penal Code section 1385 discretion as to either of the Penal Code section 12022.5 enhancements. Moreover, appellate courts "do not have the power to substitute their discretion" for that of a trial court that fails to exercise its discretion based on a mistaken belief about its authority to do so. (People v. Orabuena (2004) 116 Cal.App.4th 84, 100.) We will therefore remand the matter to allow the trial court to consider whether to strike the Penal Code section 12022.5, subdivision (a) enhancement allegation under Penal Code section 1385.
D. Custody Credits
Defendant contends he is entitled to additional custody credit. The Attorney General concedes that the abstract of judgment contains an apparent clerical error as to defendant's custody credits, and that the error should be corrected.
The abstract of judgment states that as of the June 6, 2017 sentencing hearing, defendant had earned 238 days of actual custody credit and 35 days of conduct credit. However, the minute order for that date states that defendant was awarded 250 days of actual custody credit and 37 days of conduct credit.
The record reflects that the minute order was correct. Defendant was arrested on September 30, 2016, and he was in custody through the date of sentencing—a period of 250 days. Because defendant was convicted of a felony offense listed in Penal Code section 667.5, subdivision (c), he was limited to earning 15 percent of that time in conduct credit. (See Pen. Code, § 2933.1, subd. (a).) Thus, defendant was entitled to 37 days of conduct credit, for a total of 287 days of credit.
IV. DISPOSITION
The judgment is reversed and the matter is remanded for the purpose of allowing the trial court to consider whether to strike the Penal Code section 12022.5 enhancement under Penal Code section 1385. If the trial court strikes the Penal Code section 12022.5 enhancement, it shall resentence defendant. If the trial court does not strike the Penal Code section 12022.5 enhancement, it shall reinstate the sentence. In either event, the trial court shall order the abstract of judgment corrected to reflect the proper number of custody credits.
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.