Opinion
A144917
01-16-2019
THE PEOPLE, Plaintiff and Respondent, v. ZAVIER AYERS PIGUES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR296866)
Zavier Pigues appeals the judgment of conviction entered after a jury found him guilty of the second degree murder of Brian Beaufort (Pen. Code, §§ 187, subd. (a), 189) and found true an allegation that he personally and intentionally discharged a firearm causing Beaufort's death (§ 12022.53, subd. (d)), a finding that resulted in an enhancement of Pigues's sentence. Pigues contends the trial court erred by conducting an insufficient inquiry at a Marsden hearing and by refusing to give jury instructions on imperfect self-defense and voluntary intoxication. In supplemental briefing, Pigues argues, and the Attorney General concedes, that remand is required to (1) allow the trial court to exercise its discretion as to whether to strike the firearm enhancement in light of an amendment to section 12022.53, and (2) give the parties the opportunity to make a record with information that will be relevant at a future youth offender parole hearing under sections 3051 and 4801. We affirm Pigues's conviction but agree a remand is necessary for the purposes outlined by the parties.
Undesignated statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118.
I. BACKGROUND
In October 2012, Pigues was one of several people living in a six-bedroom house on Coot Lane in Suisun City. Pigues lived in one bedroom with his two children and his children's mother, Esmeralda Gomez. Tiffany Fox lived in the house with her boyfriend (Julius Yarbra) and her two children, but she was also in a romantic relationship with Pigues. Octavious Cook and Aujanee Shelton also had rooms at the house. Annie and Simon Jack were the landlords.
Fox testified that, in October 2012, Gomez moved out of the house with her children and into the home of Annie and Simon Jack. Gomez obtained a restraining order against Pigues. Fox stated Pigues was angry at Gomez and also at the Jacks for helping and protecting Gomez. Fox testified that Pigues's behavior began to deteriorate. He was not eating or sleeping and was drinking a lot. He was getting more and more angry, and Fox saw him with a gun. Pigues said he was going to go to the house where Gomez was staying, kick in the door and shoot up the house to kill everyone living there. Pigues was waving a loaded gun around and dropped it on the floor by Fox's two-year-old daughter. Fox told Pigues she thought he was crazy. Pigues told Fox to shut up or she was going to "get it" like Gomez, which Fox took as a threat to kill her.
In October 2012, Precious Cook and Brian Beaufort had been in a relationship for about two years. Precious Cook had a one-year-old son when she met Beaufort, and the couple had a son together in February 2012. In about August 2012, Precious Cook, Beaufort and their children moved into a house on Oceanic Court in Fairfield. Octavious Cook, who lived in the Coot Lane house in Suisun City, was Precious Cook's brother, and Pigues was her cousin.
On October 27, 2012, Precious Cook planned to go out dancing at a local club, Pepper Belly's, with her close friend Katiel Morris, and Morris's friend Brittany Fortenberry. Morris and Fortenberry arrived at Precious Cook's house at around 9:00 p.m. Also there were Beaufort, Octavious Cook and Pigues. The three women left for the club at around 11:00 p.m., and the men arrived there later. When the club closed at around 2:00 a.m., all of them returned to the house, with the women driving separately from the men.
After arriving back at the house on Oceanic Court, Precious Cook was in the kitchen preparing food with Beaufort's help, while the others sat on a couch or around the kitchen table. The chair on which Pigues was sitting broke. Beaufort and others told him he needed to pick up the pieces of the chair. Pigues said he would, but he did not do so. Beaufort and Pigues began yelling at each other, and an altercation ensued. Beaufort and Pigues were "tussling" or "wrestling," but no punches were thrown. Beaufort said Pigues never cleaned up after himself. As they tussled, Pigues told Beaufort " 'you're going to respect me as a man.' " Beaufort replied " 'you can get out of my house.' " The others broke up the altercation, but it later resumed in the garage, where the others broke it up again.
Pigues walked out of the open garage door toward his car, apparently leaving. Beaufort and the others went back into the house. Everyone thought the altercation had ended. Beaufort turned on the television and then returned to the kitchen, where Precious Cook continued her food preparation. After about five minutes, Beaufort went out to the garage to smoke a cigarette, and he took a drink with him.
A few minutes later, the women heard several loud bangs. None initially realized the sound was gunshots. Precious Cook went to check on Beaufort. When she reached the front door, she saw Pigues's Mercedes leaving the court. Precious Cook entered the garage and saw Beaufort lying on the ground, with blood around him and the glass from his drink shattered. Fortenberry and Morris heard Precious Cook scream, and they ran to the garage. Beaufort opened his eyes, gasped for air and then closed his eyes again.
Beaufort died from multiple gunshot wounds. One bullet entered the left side of his lower chest area. Several other bullets entered from behind him, including entry wounds to the left side of his back, the back left side of his neck, the back of his left thigh and the back of his right arm.
Tiffany Fox heard later that morning that Beaufort had been shot. That night, Pigues called Fox. He said he was innocent, people were trying to set him up, and he needed Fox's help. Pigues told Fox that he could not be out in Fairfield and needed money for a motel room. To raise money, Pigues enlisted Fox and Aujanee Shelton (both residents of the Coot Street house where Pigues lived) to exchange stolen items for gift cards at retail stores and then to obtain cash for the gift cards at a different mall. After completing the exchanges, Pigues, Fox, Shelton and another friend of Pigues's went to a motel in San Pablo.
While at the motel (and while Shelton and the other friend had gone to get food), Pigues told Fox that he and Beaufort had an altercation in which Pigues's glasses were knocked off. Pigues left Beaufort's house, but he had to return to get his glasses and brought his gun for protection. When Fox was with Pigues at the motel, he had a broken pair of glasses.
Pigues told Fox that when he returned to Beaufort's house, he was looking for his glasses on the ground. Beaufort came out of the house and was verbally aggressive. Pigues told Fox that Beaufort ran at him, and he pushed Beaufort back, pulled out his gun and started shooting. Pigues did not say that Beaufort touched him during this confrontation. Pigues told Fox that he kept shooting until the gun was empty. He did not see where he was shooting, because he was looking around to make sure nobody saw him.
Pigues told Fox that he felt disrespected by Beaufort, as well as by Esmeralda Gomez and Annie and Simon Jack. Pigues said he had a "hit list," a written list of people he wanted to get rid of that included Gomez and the Jacks. Pigues told Fox he did not mean to kill Beaufort, but since everyone had been disrespecting him, he reached a breaking point and "he had to show everybody." Fox testified that Pigues told her he intended to kill everyone on the list, and if she told anyone what he had told her she too would be on the list.
Shelton testified that when she returned to the motel room she overheard Pigues and Fox talking. Pigues said he had killed Beaufort. Pigues had not planned to do so, but Beaufort had made Pigues feel disrespected and belittled. Pigues said he was angry not with Beaufort but with Gomez, the Jacks, and the Jacks' son Julius, who was Fox's ex-boyfriend. Pigues kept saying those other people needed to be eliminated.
Police later arrested Pigues outside the motel.
Octavious Cook contacted Fox a few months before she testified at trial. Octavious said Pigues needed to talk to Fox before she testified, but he did not say why. Pigues and Octavious Cook repeatedly called Fox, but she did not answer their calls.
At the conclusion of the trial, the jury acquitted Pigues of first degree murder, but convicted him of second degree murder and found true the allegation he personally and intentionally discharged a firearm causing Beaufort's death. The court sentenced him to 40 years to life in prison. The sentence was composed of a term of 15 years to life for second degree murder (§ 190, subd. (a)) and a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)). Pigues appealed.
II. DISCUSSION
A. The Marsden Motion
1. Additional Background
On June 19, 2014 (several months before the trial began), Pigues filed a written Marsden motion seeking replacement of his appointed counsel. Pigues checked most of the boxes on a preprinted form as the bases for his motion, including that counsel had failed to confer with him about preparation of the defense, failed to subpoena favorable witnesses, failed to perform necessary investigation, failed to present an affirmative defense at the preliminary hearing, failed to secure and present expert witnesses, and failed to declare a conflict of interest, thus taking on the role of a surrogate prosecutor against Pigues's interests. Pigues also checked a box labeled "Other," and provided a handwritten statement of his concerns. He stated that he and his counsel, Robert Boyle, did not see eye to eye and therefore Pigues did not feel comfortable going to trial with him. Pigues stated that counsel had failed to cross-examine witnesses adequately during the preliminary hearing. He declared that counsel "oversteps my decisions . . . ." Pigues stated he had not received copies of discovery and had not met his investigator. Finally, Pigues stated that counsel had expressed to him a doubt that he could get a good outcome other than a plea and had been adamant about settling the case.
The trial court heard the motion the same day. The court gave a preliminary explanation of the Marsden motion proceeding, accepted Pigues's written motion for filing and read it into the record. The court then asked Pigues: "Anything else, sir?" Pigues responded: "That's pretty much it." The court then asked counsel to respond. Counsel stated he believed that Pigues's dissatisfaction was a recent development and that Pigues had lost confidence in him after it appeared there was an agreement with the prosecutor to resolve the matter with Pigues receiving a 21-year prison term, but the prosecutor then told counsel he was not permitted to settle the case.
Counsel stated he had investigated the case thoroughly. He hired an expert witness to review the autopsy and went over it with Pigues. He had met with Pigues "so many times I can't even count" and had played the videotaped discovery for him on a laptop computer. Counsel explained that he had not provided Pigues with hard copies of the discovery because in other cases the documents were read by inmates who then claimed the defendant had confessed to them. Counsel also stated that giving an in-custody defendant hard copies made it difficult to control attorney-client privileged information. Counsel said he had been prepared to go to trial when the prosecutor provided some late discovery. Counsel also had been trying to subpoena a percipient witness to the shooting but was having a difficult time serving the subpoena on the witness. Counsel stated he had a lengthy discussion with Pigues in which he explained his view that if the case went to trial the likely verdict would be either voluntary manslaughter (which would result in a determinate prison term) or second degree murder (which would result in a sentence of 40 years to life).
The court then addressed Pigues and stated it was denying the Marsden motion because it appeared his frustrations had more to do with the prosecutor than anything his counsel had done. The court explained it could not force a settlement, but it planned to meet with counsel for the parties to explore whether one was possible. In response to a question from the court, Pigues acknowledged that he had been wondering what was going on when a deal he thought he had was withdrawn.
2. Analysis
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 [])—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." (People v. Smith (2003) 30 Cal.4th 581, 604.)
Pigues does not contend that, based on the information developed at the Marsden hearing, the court's denial of his motion was an abuse of discretion. He argues, however, that the court did not conduct an adequate inquiry into his concerns about his counsel. We disagree. As noted, the court accepted (and read into the record) Pigues's written Marsden motion and gave him the opportunity to supplement what he had written. He did not add anything. The court then asked counsel to respond, which counsel did, outlining some of his efforts in connection with subpoenaing witnesses, obtaining experts, and keeping Pigues informed about discovery and other developments in the case, all of which were areas of concern identified by Pigues in his motion. Counsel also recounted in some detail the course of plea negotiations and stated his view that the prosecutor's withdrawal of a plea offer had undermined Pigues's confidence in defense counsel. The court then denied the Marsden motion, stating that it appeared Pigues's frustration with his counsel arose primarily from the prosecutor's withdrawal of the plea offer rather than from anything defense counsel had done. At no point did the court prevent Pigues from stating or elaborating on any concerns he had.
Pigues contends the court should have gone further and asked him and his counsel to address specifically each of the items he checked off or mentioned in the written Marsden motion, such as counsel's alleged failure to subpoena witnesses, secure experts and conduct necessary investigation. We are not persuaded this was essential. The court conducted a reasonable inquiry, giving Pigues the opportunity to supplement what he had written, and asking counsel to provide a response (which, as noted, addressed several of the issues mentioned in the Marsden motion, while stating the view that the real cause of Pigues's new lack of confidence in counsel was the collapse of plea negotiations).
The cases cited by Pigues do not support his claim that the court's inquiry here was insufficient under Marsden. For example, in People v. Cruz (1978) 83 Cal.App.3d 308, the case on which Pigues primarily relies, the appellate court held that the trial court, by allowing the defendant to state the reasons for his dissatisfaction with counsel, "clearly satisfied the requirements of Marsden," although the court should have conducted a further inquiry before allowing the defendant to waive counsel and represent himself (an issue not presented here). (Cruz, supra, 83 Cal.App.3d at pp. 317-318.) In People v. Ivans (1992) 2 Cal.App.4th 1654, 1665-1666 & fn. 8, where the defendant listed reasons he was dissatisfied with counsel but then stated those were only some of the reasons, the appellate court held the trial court erred by failing to inquire into the unstated reasons. Here, in contrast, the court asked Pigues if he had anything to add to what he included in his written motion, and Pigues responded, "That's pretty much it." And in People v. Munoz (1974) 41 Cal.App.3d 62, 66, after the defendant alleged that his attorney did not want to fight to defend him, the court failed to inquire into the attorney's state of mind. Unlike the situation in Munoz, the court here asked counsel to respond to Pigues's concerns, and counsel gave a detailed response. We find no error.
B. The Refusal to Instruct on Imperfect Self-Defense
1. Additional Background
In his proposed jury instructions, Pigues requested that the court instruct the jury with CALCRIM No. 571 (addressing voluntary manslaughter under the doctrine of imperfect self-defense). During pretrial discussions, Pigues's counsel stated he did not expect the evidence to support an instruction on complete self-defense, but he anticipated it would support a theory of heat of passion/sudden quarrel and perhaps "some element of imperfect self-defense."
As the trial neared the completion of the evidentiary phase, the court and the parties discussed jury instructions. The trial court stated it was inclined to instruct on both self-defense and imperfect self-defense. The prosecutor argued that an instruction on imperfect self-defense requires evidence that the defendant had an actual belief that he feared great bodily injury or death, and there was no evidence to support the instruction. Pigues had not testified, and the prosecutor contended circumstantial evidence was not sufficient to show Pigues had the required actual belief. Pigues's counsel disagreed and argued there was sufficient evidence to support the instruction.
The following day, after further argument, the court stated the case law required two actual beliefs—one in the imminence of the threat and one in the need to use deadly force to repel the threat. The court found there was no evidence of what Pigues was thinking when he pulled the gun and started firing at Beaufort. The court declined to instruct on either (1) the defense of complete self-defense, or (2) the imperfect self-defense theory of voluntary manslaughter. The court did, however, instruct on the sudden quarrel/heat of passion theory of voluntary manslaughter (CALCRIM No. 570).
2. Analysis
" ' "Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." ' " (People v. Manriquez (2005) 37 Cal.4th 547, 581.) For this " 'narrow' " doctrine to apply, the defendant must actually believe there is an imminent danger to life or great bodily injury. (Ibid.; see People v. Hardin (2000) 85 Cal.App.4th 625, 629-630 [under self-defense doctrine, "deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury"].) The court must instruct on imperfect self-defense "whenever there is evidence substantial enough to merit consideration by the jury that under this doctrine the defendant is guilty of voluntary manslaughter." (Manriquez, supra, at p. 581.) We review de novo the court's refusal to instruct on this issue. (Ibid.)
Pigues contends there was substantial evidence supporting a finding that he killed Beaufort because he actually believed Beaufort represented a threat of death or serious bodily harm. We disagree. Pigues did not testify. The other people at the Oceanic Court house (Precious Cook, Octavious Cook, Morris and Fortenberry) were not in the garage with Beaufort when Pigues returned with his gun. There was no evidence that Beaufort had a weapon at any point, or that the earlier tussling or wrestling between Pigues and Beaufort involved threats of deadly harm. The testimony of neighbors Daniel Cunningham and Matthew Sutton, cited by Pigues, supported a finding that there was another verbal exchange when Pigues returned, and that Pigues may have assaulted Beaufort. Cunningham testified he heard someone (presumably Beaufort) say " 'get the "f" out of my house' " in a loud voice before the shots (although he was inconsistent as to whether this occurred immediately before the shots). Matthew Sutton testified he heard Beaufort say " 'Get your hands off me,' " followed by shots. This testimony, while suggesting Pigues assaulted Beaufort, does not support an inference that Beaufort did anything that caused Pigues to hold a subjective belief that he faced an imminent threat of death or serious bodily injury.
In support of his argument that an instruction on imperfect self-defense was required, Pigues relies primarily on Fox's testimony about Pigues's statements to her after the crime. Fox testified that Pigues said Beaufort was verbally aggressive and ran or walked toward him. Fox testified at trial that Pigues did not say Beaufort physically assaulted (or even touched) him during this confrontation. On cross-examination, defense counsel elicited that Fox testified at the preliminary hearing that Pigues said Beaufort started to assault him (or came at him to assault him). Pigues responded with deadly force. He pushed Beaufort back, pulled out his gun, and fired until it was empty (with most of the bullets that hit Beaufort entering the back of his body). Pigues said he was angry at Beaufort because Beaufort had disrespected him, just as Esmeralda Gomez and Annie and Simon Jack had disrespected him.
Pigues's statements to Fox do not support an inference that he actually feared imminent death or serious bodily injury. At most, they support an inference that he believed Beaufort might resume their earlier altercation (one consisting of non-life-threatening tussling). Although Fox and Shelton testified that Pigues stated Beaufort "beat him up" at some unspecified time that evening, there was no evidence Beaufort inflicted any injuries. The evidence did not support an inference that Pigues, upon his return to the garage, believed Beaufort was about to escalate to a different level of violence and to engage in deadly force or force likely to cause great bodily injury. There was no evidence Beaufort displayed a weapon or threatened to kill or seriously harm Pigues. On this record, any conclusion that Pigues believed Beaufort suddenly posed a much greater threat (requiring him to respond with deadly force) would be based not on substantial evidence, but on speculation about what may have been said or done upon Pigues's return. The court correctly declined to instruct on this theory.
As we discuss further below, any suggestion that Pigues may have been voluntarily intoxicated is irrelevant to the question whether he acted in imperfect self-defense. (People v. Soto (2018) 4 Cal.5th 968, 970 (Soto).) Accordingly, any supposed intoxication does not support Pigues's claim that he was entitled to an instruction on an imperfect self-defense theory.
C. The Refusal to Instruct on Voluntary Intoxication
1. Additional Background
During pretrial discussions on motions in limine, Pigues's trial counsel stated his view that voluntary intoxication would be an issue in the case. When the court and the parties later discussed jury instructions, the court noted Pigues's request for a voluntary intoxication instruction. The prosecutor argued the instruction should not be given because there was no evidence Pigues was intoxicated. Defense counsel contended the evidence supported the instruction. The court concluded there was not enough evidence to support the voluntary intoxication instruction (CALCRIM No. 625) and declined to give it. The court stated its refusal to give the instruction "would not preclude, though, an argument based upon the evidence regarding sudden quarrel, heat of passion and the role that drinking might have played in that."
2. Analysis
Pigues contends the court prejudicially erred by refusing to give CALCRIM No. 625 because there was evidence of voluntary intoxication that was relevant to the issues of intent to kill and imperfect self-defense. We find no error.
In its recent decision in Soto (decided after the close of briefing in this appeal), our Supreme Court clarified the appropriate role of evidence of voluntary intoxication in a case involving a murder charge and a claim of imperfect self-defense. Murder is an unlawful killing with express or implied malice. (§§ 187, subd. (a), 188; Soto, supra, 4 Cal.5th at p. 974.) Express malice requires an intent unlawfully to kill, while the mental state for implied malice is that the defendant " 'knows that his conduct endangers the life of another and . . . acts with conscious disregard for life.' " (Soto, supra, 4 Cal.5th at p. 974.)
"Voluntary '[m]anslaughter, a lesser included offense of murder, is an unlawful killing without malice. . . . Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense.' " (Soto, supra, 4 Cal.5th at p. 974.) " 'Self-defense, when based on a reasonable belief that killing is necessary to avert an imminent threat of death or great bodily injury, is a complete justification, and such a killing is not a crime. [Citations.] A killing committed when that belief is unreasonable is not justifiable. Nevertheless, "one who holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury does not harbor malice and commits no greater offense than manslaughter." ' " (Ibid.)
Under section 29.4, evidence of voluntary intoxication is not admissible to "negate the capacity to form" a mental state for a charged crime (§ 29.4, subd. (a)), but is admissible on the issue of whether the defendant "actually formed" certain mental states (id., subd. (b)). Specifically, subdivision (b) of the statute provides: "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (Italics added.) "Because harbored implied malice does not appear in this enumerated list, section 29.4 prohibits the use of evidence of voluntary intoxication to establish that a defendant acted without implied malice." (Soto, supra, 4 Cal.5th at p. 975.)
In addition, as to express malice, the Soto court clarified the scope of section 29.4. The court held that, under that statute, evidence of voluntary intoxication, while admissible on the question whether a defendant intended to kill (a prerequisite to finding express malice), is not admissible on the question whether the defendant believed it necessary to act in self-defense (a belief that, as noted, can preclude the formation of express or implied malice). (Soto, supra, 4 Cal.5th at pp. 970, 974-976.) CALCRIM No. 625, as given in Soto, correctly reflected that distinction. (Soto, supra, at p. 970.) Soto disposes of a significant portion of Pigues's appellate argument as to both error and prejudice, as he focuses primarily on the purported relevance of intoxication to his claim of imperfect self-defense.
CALCRIM No. 625 states: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill[,] [or] [the defendant acted with deliberation and premeditation[,]] [[or] the defendant was unconscious when (he/she) acted[,]] . . . . [¶] . . . You may not consider evidence of voluntary intoxication for any other purpose." In his appellate brief (filed before the Soto decision), Pigues argues the trial court should have given a modified version of CALCRIM No. 625 that stated the jury could consider evidence of voluntary intoxication not only to determine whether he intended to kill, but to determine the existence of "express malice" more broadly (i.e., to consider intoxication evidence in determining whether he believed he needed to act in self-defense, thus precluding the formation of malice).
As noted, evidence of voluntary intoxication was admissible on the question whether Pigues intended to kill Beaufort. (§ 29.4, subd. (b); Soto, supra, 4 Cal.5th at p. 970.) But the court's refusal to instruct on that point provides no basis for reversal. To warrant an instruction on voluntary intoxication, there must be substantial evidence of the defendant's voluntary intoxication and that "the intoxication affected the defendant's 'actual formation of specific intent.' " (People v. Williams (1997) 16 Cal.4th 635, 677.) Here, there was scant evidence that Pigues was intoxicated on the evening in question and no evidence that any such intoxication precluded the formation of an intent to kill.
Evidence of voluntary intoxication also is admissible on the question whether a defendant in a murder case premeditated and deliberated (§ 29.4, subd. (b)), a finding that would support a verdict of first degree murder (§ 189). As Pigues concedes, in light of the jury's second degree murder verdict, he was not prejudiced by any error in failing to instruct that voluntary intoxication was relevant to premeditation and deliberation.
As noted, Pigues did not testify. No witness testified to having seen him drink on the night of the shooting, either at Pepper Belly's or at the Oceanic Court home of Beaufort and Precious Cook. Fortenberry testified that Pigues seemed intoxicated, although she also testified she did not see him drink and was guessing that he was intoxicated. Neighbor Hilda Becerra testified that when she saw Pigues outside Beaufort's house, he was walking funny, leading her to believe he might be angry or drunk and to feel concern that he might drive while drunk, but she did not know why he was walking funny.
Finally, as Pigues notes, Fox testified that Pigues was drinking a lot during the days before the shooting, including when he expressed anger and made threats. Fox also testified that, on the day of the shooting, Beaufort and Pigues stopped by the Coot Street house; Pigues came into the house to get his tennis shoes and some other items; and he said that he and Beaufort were planning to watch a game and have drinks at a club. But as noted, there is no evidence as to whether he actually drank and became intoxicated on the night of the shooting.
The evidence thus was inconclusive as to whether Pigues had anything to drink on the night of the shooting, let alone enough to be intoxicated. But in any event, there was no evidence that voluntary intoxication had any effect on Pigues's formation of the intent to kill. (See People v. Williams, supra, 16 Cal.4th at pp. 677-678 ["Assuming this scant evidence of defendant's voluntary intoxication would qualify as 'substantial,' there was no evidence at all that voluntary intoxication had any effect on defendant's ability to formulate intent."].) If anything, Fox's testimony about Pigues's conduct in the days prior to the shooting suggests that, for him, intoxication coincided with angrier and more violent behavior, and may have made him more (not less) likely to harbor an intent to kill. Fox testified Pigues was drinking a lot a few days before the shooting when he expressed anger and made threats toward Esmeralda Gomez, Annie and Simon Jack, and Fox herself. That behavior was consistent with Pigues's angry and ultimately fatal response a few days later to Beaufort's criticisms in connection with the broken chair.
D. The Firearm Enhancement
As noted, pursuant to section 12022.53, subdivision (d), the court imposed a consecutive term of 25 years to life based on Pigues's personal and intentional discharge of a firearm causing Beaufort's death. Under the version of section 12022.53 in effect at the time of Pigues's sentencing, the court had no discretion to strike the enhancement. (See § 12022.53, former subd. (h), as amended by Stats. 2010, ch. 711, § 5 ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."].) Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620) (Stats. 2017, ch. 682), which took effect on January 1, 2018, amended subdivision (h) of section 12022.53 to provide a trial court does have discretion to strike an enhancement that otherwise would apply under that statute. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2 ["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."].)
Section 12022.53 has since been amended again; that amendment, which took effect January 1, 2019, did not modify subdivision (h) of the statute and is not pertinent to the issues raised in this appeal. (See Stats. 2018, ch. 423, § 114.) --------
In a supplemental brief, Pigues argues that, because his conviction was not yet final when Senate Bill No. 620 took effect on January 1, 2018, the amendment to section 12022.53, subdivision (h) applies to him, and this court should remand to allow the trial court to exercise its discretion as to whether to strike the section 12022.53, subdivision (d) enhancement. The Attorney General concedes a remand for this purpose is appropriate, and we agree. Senate Bill No. 620's amendment of section 12022.53 applies retroactively to cases that are not yet final on appeal. (People v. Chavez (2018) 22 Cal.App.5th 663, 712.) 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." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) As the Attorney General acknowledges, the record here does not show whether the trial court would have exercised its discretion to strike the firearm enhancement. Instead, the court imposed the then-mandatory enhancement without comment. We will remand for the court to exercise its discretion on this point.
E. Information for Eventual Youth Offender Parole Hearing
In his supplemental brief, Pigues contends that, under People v. Franklin (2016) 63 Cal.4th 261 (Franklin), he should be given the opportunity on remand to develop a record with information that will be relevant at an eventual youth offender parole hearing before the Board of Parole Hearings (Board) under sections 3051 and 4801. The Attorney General concedes this point as well, and we agree a remand for this purpose is required.
Pigues was 21 years old at the time of the charged offense. Under section 3051, subdivision (b)(3), he will be entitled to a youth offender parole hearing during his 25th year of incarceration. In Franklin, the Supreme Court recognized that sections 3051 and 4801, the statutes governing youth offender parole hearings, "contemplate that information regarding the juvenile offender's characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board's consideration." (Franklin, supra, 63 Cal.4th at p. 283.) To ensure that this information is available, a youthful offender is entitled to a sentencing hearing at which he may develop a record with the relevant information. (Id. at pp. 283-284.) Pigues's sentencing hearing occurred before Franklin was decided, and the parties agree an opportunity to develop the record should be provided on remand.
III. DISPOSITION
Pigues's conviction is affirmed. The case is remanded for the trial court to consider whether to strike the firearm enhancement imposed under section 12022.53. On remand, the trial court shall afford the parties an opportunity to make a record of information that will be relevant to the Board at a subsequent youth offender parole hearing.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Tucher, J. /s/_________
Brown, J.