Opinion
C087506
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. SCOT DOUGLAS SEQUEIRA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F07357)
A jury convicted defendant Scot Douglas Sequeira of first degree murder and found true the allegation that he personally discharged a firearm causing death. (Pen. Code, §§ 187, 12022.53, subd. (d).) The trial court sentenced defendant to serve a prison term of 50 years to life and imposed various fines and fees. Defendant appeals.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) he received ineffective assistance of counsel because his trial attorney did not object when the prosecutor misstated the burden of proof to the jury, (2) the trial court abused its discretion by denying his posttrial requests "to discharge his retained counsel, have new counsel appointed, and continue the sentencing hearing," and (3) this case must be remanded because the trial court was unaware of its discretion to strike the firearm enhancement and impose a different, uncharged enhancement.
We conclude defendant did not receive ineffective assistance of counsel. The prosecutor did not misstate the burden of proof. We further conclude the trial court did not abuse its discretion with regard to defendant's Marsden motion. The trial court informed defendant he could discharge his attorney, but defendant did not elect to do so. Finally, the record establishes that remand would be futile after the trial court explained why it refused to reduce defendant's sentence regardless of its impending discretion to strike the firearm enhancement. Accordingly, we affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
Early in the morning on November 25, 2015, utility workers discovered the body of Matthew Caquelin lying in a field near the Sacramento Airport. Rigor mortis had set in. A trail of blood led from where the body was located to the road nearby. There, a set of tire tracks was discovered. The police found $270 in cash lying near the body. Police officers found a firearm shell casing near the body and four more casings next to the road adjacent to the field.
The body displayed three gunshot wounds to the torso and one gunshot wound to the forehead. A forensic pathologist determined the three gunshots to the torso would not have been immediately fatal. The pathologist found it conceivable Caquelin could have traveled 500 to 550 feet before collapsing. The wound to the head, however, would have been immediately incapacitating. The gunshot to the head involved a firearm discharge distance of about 12 inches. Caquelin's blood tested positive for methamphetamine, hydrocodone, and cannabinoids.
Caquelin's cellphone was found underneath his hands. Caquelin's last completed phone call had been at 9:28 p.m. the previous night to a cellphone registered to defendant. The police also discovered numerous text messages between Caquelin and defendant's phone showing defendant proposed that Caquelin sell drugs defendant offered to obtain. At one point, Caquelin indicated he could not raise all the money required to purchase the drugs from the supplier. Caquelin also stated he got an ounce of an unspecified illegal narcotic for $100 for defendant. Defendant, however, turned down the offer.
On December 3, 2015, police officers executed a search warrant on defendant's apartment. Inside the apartment, the police found a spent shell casing for a firearm. An expert on firearms testified the same gun fired the bullets from the shell casing found in defendant's apartment and the five shell casings found near Caquelin's body.
In November 2015, defendant drove a white 2013 Dodge Avenger. The distance between the vehicle's rear tires and the width of the tires themselves was the same as the tire marks on the side of the road nearest where Caquelin's body was found.
Around 10:00 p.m. on November 24, 2015, Robert Bruggman was driving home from his job at the Sacramento Airport. As he drove through a normally deserted section of Elverta Road and Metro Air Parkway, he saw a white, four-door sedan or coupe parked on the side of the road with its headlights on. The sedan had "high vis" headlights with a slightly bluish tint.
Caquelin's friend, Emmanuel Jones, testified he was a good friend of Caquelin and hung out with him on the night of November 24, 2015. That night someone came to visit Caquelin at his residence. Jones and Caquelin got into the visitor's white car. Jones was not paying attention to the front seat occupants, but he nonetheless developed a "weird" and uneasy gut feeling. Jones observed Caquelin seemed "uneasy" too. After they got out of the car, Jones told Caquelin, "[Y]ou didn't feel right about it" and warned him "don't do it." Back inside the apartment, Caquelin paced nervously before leaving again. Jones never saw Caquelin again.
On November 25, 2015, defendant was interviewed by the police. A recording of the interview was played for the jury. During the interview, defendant stated he had only met Caquelin twice, saying, "it was very rare that I really associated myself with him." Defendant described Caquelin as drug addicted and willing to take "any" drug including "coke, pills, weed." Caquelin was always trying to get defendant to sell him opioids. Defendant saw Caquelin on the previous evening at 8:15 p.m. Defendant and Caquelin were going to go "somewhere" when Caquelin wanted to bring a friend along, identified as "E." Caquelin, however, did not have enough money to buy opioid pills. Defendant refused to loan Caquelin the sum of $50. Defendant said it was a waste of his time to go to Caquelin's place. As defendant stated, "Well after he said [no] money, we weren't going anywhere."
Caquelin got out of defendant's car and into a Chevy Impala with someone defendant did not know. Before getting into the Impala, Caquelin called out, " 'Hey Des.' " Defendant drove straight home, ate something, and went to bed because he was not feeling well. Defendant never saw Caquelin again, but did text him the next day. Defendant thought they might have lunch together.
Defense Evidence
Defendant testified on his own behalf as follows: He suffers from diabetes and diabetes-related health conditions. Defendant admitted he developed an addiction to opioids. He sometimes used opioids with Caquelin. Defendant observed Caquelin also ingest cocaine and marijuana. He and Caquelin were friends who got along well.
On November 25, 2015, defendant and Caquelin had a plan to buy "a large quantity" of opioids for "a very good price," which would have enabled them to resell the opioids to "make a good profit or take them ourselves." Defendant, Caquelin, and Jones met in his car. But the plan "didn't work out." Caquelin did not have the funds for the purchase. And defendant did not have any extra money for the purchase. Defendant and Caquelin had "[j]ust maybe some uneasy feelings or said it's too bad." Before defendant drove away, he saw Caquelin get into another car. Caquelin called out to the driver of the other car, "Hey Des."
Defendant then drove straight home. Defendant was driving his white Dodge Avenger with "white halogen lights." He denied driving past the Elverta Road and Metro Air Parkway intersection on the way home.
Defendant acknowledged being the owner of an XD-9 firearm. He did not have it with him when he met with Caquelin on November 24, 2015. Instead, defendant believed it was in a safe container at his residence.
When the police came to defendant's apartment on November 25, 2015, he was dishonest with them because he feared he would be charged with selling opioid pills. Defendant, however, did not believe he was a suspect in Caquelin's death. After his second interview with the police, defendant discovered his firearm was missing. He suspected it had been taken during an earlier theft of his residence. Defendant testified that he informed the police that his firearm was missing after his second interview with the police and after consulting with an attorney.
Defendant denied ever being at the location where Caquelin was killed.
On cross-examination, defendant admitted he had illegally purchased pills on 20 to 30 occasions. Defendant had a connection named "Carlos" who could have supplied him and Caquelin with cocaine and oxycodone.
On cross-examination, defendant acknowledged it took him three days to set up the drug transaction in which he negotiated the seller down from $15 per pill to $10 per pill. When the time came to complete the deal, defendant went to pick up Caquelin. Caquelin, however, was unable to pay for the drugs and defendant "just blew . . . off" the dealer. Defendant had thought it was a good deal and wanted to use the same dealer again "[i]f it was convenient." Although defendant had an addiction, he denied that he was frustrated with Caquelin.
DISCUSSION
I
Closing Argument by the Prosecution
Defendant argues the prosecutor engaged in misconduct by misstating the burden of proof to the jury during closing argument. Defendant's trial attorney did not object to the claimed misconduct and did not request that the jury be admonished. Thus, defendant contends his convictions must be reversed because the failure to object or request admonishment constituted ineffective assistance of counsel. Accordingly, we review the claimed error through the lens of defendant's constitutional right to the effective assistance of counsel. We conclude there was no error.
A.
Review of Claims of Prosecutorial Misconduct During Closing Arguments
As the California Supreme Court has explained, " 'a prosecutor commits reversible misconduct if he or she makes use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted.' " (People v. Fuiava (2012) 53 Cal.4th 622, 679, quoting People v. Riggs (2008) 44 Cal.4th 248, 298.) Under the federal Constitution, prosecutorial misconduct results if "the challenged action ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' " (Riggs, at p. 298, quoting Darden v. Wainwright (1986) 477 U.S. 168, 181 .) However, " ' "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" ' " (Riggs, at p. 298, quoting People v. Stanley (2006) 39 Cal.4th 913, 952.)
Here, defendant's trial attorney failed to preserve the issues of prosecutorial misconduct by not requesting the jury be admonished as to any claimed instance of misconduct. Anticipating this forfeiture, defendant asserts he received ineffective assistance of counsel for lack of objection or request for admonition by his trial attorney. "A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored." (People v. Lopez (2008) 42 Cal.4th 960, 966.) To establish ineffective assistance of counsel, defendant must show that " '(1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant.' " (People v. Johnson (2015) 60 Cal.4th 966, 980, quoting People v. Scott (1997) 15 Cal.4th 1188, 1211.)
As the California Supreme Court has held, " 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' [Citations.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission.' " (People v. Centeno (2014) 60 Cal.4th 659, 674-675.) "The decision whether to object to the admission of evidence is 'inherently tactical,' and a failure to object will rarely reflect deficient performance by counsel." (People v. Castaneda (2011) 51 Cal.4th 1292, 1335.) With these principles in mind, we turn to defendant's claim of prosecutorial misconduct.
B.
The Prosecutor's Closing Argument
During closing argument, the prosecutor argued to the jury as follows:
"I want to start this morning by talking to you a little bit about the law. After we talk about the law, we are gonna talk about the facts and apply the facts of this case to the law as the judge has read it to you.
"I want to start by talking about what I call about three misconceptions in the law, and it starts with this concept of reasonable doubt, which you have heard the instruction relating to.
"First and foremost, you got to understand that reasonable doubt is just that. It is a doubt based in reason, based on the evidence presented in the case. The instructions tell us that it's not speculation, that it's not a possible doubt. It's none of those things. It's reasonable doubt.
"And the reason is that - this is - it's a human standard, and we'll talk about that a little bit more in a second, but understand this:
"The standard of beyond a reasonable doubt is the same throughout criminal law, no matter what kind of a criminal case you're in. If you go out to Power Inn Road and fight a traffic ticket, the standard is beyond a reasonable doubt. The standard doesn't change because we are in here and this is a murder trial. That standard is the same throughout all of our criminal law.
"The law tells us that that standard is after comparison and consideration of all of the evidence together. In other words, what we're gonna do is we are going to take all of the evidence presented in this case, every bit, every piece. We are going to put it all together globally, and we are going to look at it as a whole, and we are gonna talk about that a little bit, too, because there's a lot of strength in that proposition, and that's an important one, the idea that we view the evidence together a[s] a whole.
"And, like I said a minute ago, this is a human standard. And the reason is that the law understands that we're not video recorders, that we're human beings, and because of that, the law places that standard at beyond a reasonable doubt. It creates what we would refer to as a human standard in the law and a standard that relates specifically to human affairs." (Italics added.)
Defendant now argues that the italicized portions of the prosecutor's closing argument constituted misconduct that now requires reversal of this conviction.
C.
Analysis
A prosecutor's misstatement of the law requires reversal when the misstatement has the effect of "absolv[ing] the prosecution from its prima facie obligation to overcome reasonable doubt on all elements." (People v. Marshall (1996) 13 Cal.4th 799, 831 (Marshall).) Marshall involved a prosecutor's argument that the defense sought the introduction of a witness's testimony, "despite the falsity of his story, because '[the defense] had to come up with another possible suspect to create in your minds that reasonable doubt that they want you to have when you enter that jury deliberation room.' " (Id. at p. 831, fn. omitted.)
Despite the error in suggesting the defense had any burden of proof, the Marshall court rejected the claim of prejudice. (Marshall, supra, 13 Cal.4th 799.) The California Supreme Court explained: "In the context of the whole argument and the instructions, we see no reasonable likelihood [citation] the jury construed the prosecutor's remarks as placing on defendant the burden of establishing a reasonable doubt as to his guilt. When the prosecutor made the challenged comment, he had just finished reviewing the evidence presented in the prosecution's case-in-chief, with the evident aim of demonstrating he had succeeded in proving defendant guilty beyond a reasonable doubt. As in People v. Gonzalez [(1990)] 51 Cal.3d [1179,] 1215, the prosecutor then could legitimately argue that in order persuasively to cast doubt on the prosecution's case, the defense of third party culpability would need to identify a possible perpetrator. Accordingly, defendant fails to establish either misconduct or, it follows, ineffective assistance of counsel. (See Strickland v. Washington [(1984)] 466 U.S. [668,] 691-692 .)" (Marshall, supra, 13 Cal.4th at pp. 831-832.)
Here, defendant argues the prosecutor misstated the burden of proof by (1) stating that the same standard applies in every criminal case, and (2) calling it a "human standard." In defendant's view, the prosecution "trivialized" the burden of proof. We are not persuaded.
First, the prosecutor's assertion of a single standard of proof in criminal cases was accurate. Section 1096 provides, in pertinent part: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt." Thus, the reasonable doubt standard applies to criminal prosecutions - even those related to driving a motor vehicle. (E.g., People v. Datt (2010) 185 Cal.App.4th 942, 948-949.) Accordingly, the prosecutor did not err in stating that the reasonable doubt instruction applies "no matter what kind of a criminal case you're in," even if involving a "traffic ticket." (Italics added.)
Defendant imagines a dilution of the reasonable doubt standard based on the assertion that "not all traffic tickets implicate the beyond a reasonable doubt standard," including parking tickets. This mischaracterizes the prosecutor's assertion that the reasonable doubt standard applies regardless of the type of criminal case. Moreover, the prosecutor's point was that there is only a single reasonable doubt standard and that standard does not vary by the severity of the crime. There was no danger the jury was misled by the prosecutor's accurate statement about the reasonable doubt standard.
Second, the prosecutor's statement that the reasonable doubt standard is a "human" standard was also not a misstatement of the burden of proof. There was no error in the juxtaposition between the certainty of a video recorder and the reasonable doubt standard applying to the evidence in this case, which depended largely on the testimony of witnesses and experts. Notably, the prosecutor expressly referred to the jury instruction defining the reasonable doubt standard. Rather than attempting to dilute the standard, the prosecutor acknowledged the trial court's instruction provided the correct definition.
We reject defendant's reliance on People v. Nguyen (1995) 40 Cal.App.4th 28. In Nguyen, the prosecutor argued the reasonable doubt standard applies " 'in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving.' " (Id. at p. 35.) The Nguyen court held this statement to be error because the "standard people customarily use in deciding whether to change lanes trivializes the reasonable doubt standard." (Id. at p. 36.) Here, however, the prosecutor did not trivialize the reasonable doubt standard. There was no suggestion in this case that the standard for a criminal conviction is the same as that for a routine, everyday decision.
Because the prosecutor did not engage in misconduct during closing argument, we necessarily conclude that defendant's trial attorney was not ineffective for failure to object. "Counsel's failure to make a meritless objection does not constitute deficient performance." (People v. Mitcham (1992) 1 Cal.4th 1027, 1080.) Accordingly, we reject defendant's claim of ineffective assistance of counsel regarding the lack of objection to the prosecutor's closing argument.
II
Continuance to Retain New Counsel
Defendant argues the trial court erred in "denying [his] request to discharge his retained counsel, have new counsel appointed, and continue the sentencing hearing." We reject the argument.
A.
Trial Court Ruling
On October 26, 2017, defendant's trial attorney filed a motion for a continuance. The motion notes that "[d]efendant states that he is unable to work with his present counsel necessitating self-representation or bringing new counsel, and that medical conditions have prevented him from meaningfully participating with his attorney for the purpose of case review and the creation of a proper Sentencing Brief and Statement of Mitigation." The motion itself, however, requested nothing more than a continuance. The motion did not request that defendant's privately retained trial attorney be discharged. Nor did the motion detail any effort by defendant to hire new counsel or prepare for being self-represented.
The motion included a declaration by defense counsel apologizing for filing the motion the day before the sentencing hearing. Defense counsel declared defendant had requested that the motion be filed on the afternoon of October 25, 2017 - i.e., two days before the sentencing hearing. The declaration did not state when defendant made the request to defense counsel.
On October 27, 2017, the date for sentencing, the trial court inquired of defense counsel about the late-filed motion. Defense counsel stated defendant had "several requests" but detailed only two: a request for a continuance and a request to conduct a Marsden hearing. The following exchange then occurred between the trial court and defendant:
"THE COURT: All right. Before we address the merits of any of the issues, other than the Defendant's request for a Marsden hearing, let me ask [the defendant], directly, are you at this time making a Marsden motion or a motion to have [your current attorney] relieved as your attorney and a new attorney appointed for you.
"THE DEFENDANT: Yes. I have a draft - or I have a Marsden motion drafted up."
The trial court then ordered the courtroom cleared according to Marsden procedure and heard defendant's statements. Defendant complained his trial attorney did a poor job of representing him at trial. The trial court then asked for a response from defense counsel. Defense counsel believed defendant was being sincere in his complaints and noted defendant was, at that point, unable to follow defense counsel's strategies "for reasons that are somewhat mysterious . . . ." During a visit to defendant's jail cell, defense counsel noted he had been unable to have a meaningful conversation with defendant. The trial court took a brief recess before stating the reasons for denying the Marsden motion as follows:
"THE COURT: . . . [¶] . . . it . . . dawned on me just a little bit ago that [your trial attorney] is retained. He's not appointed counsel, and I had thought he was appointed counsel, and your Marsden motion -- I noted in your papers you wanted to file a Marsden motion, and we have begun what purports to be a Marsden motion, isn't in order because he's not appointed. [¶] You can fire your lawyer at any time that you want, but this is not a good time to do it, in the Court's opinion, at the time of your judgment and sentencing. [¶] So I have no authority to remove him as your lawyer."
In response, defense counsel noted: "Your Honor, I informed the Court that's why I wouldn't file the Marsden motion." The trial court then addressed defendant as follows:
"THE COURT: . . . [¶] . . . [¶] So what we are going do is -- because I told you this proceeding would be confidential, I will order that it not be transcribed, that the notes be retained, though, and made available upon an order of the Court.
"Does that make sense to you?
"THE DEFENDANT: Yes.
"THE COURT: So what I am going to do is bring everyone back and proceed.
"Does that make sense to you?
"THE DEFENDANT: Yes.
"THE COURT: All right."
Defendant did not request to discharge his attorney nor did he mention any request for continuance. The courtroom was reopened and the trial court announced it would proceed with sentencing. The court explained that defense counsel was privately retained and not subject to a Marsden motion. The trial court noted it was aware of defendant's health condition, but the condition was no reason to stay in jail rather than go to prison. And the court noted first degree murder was not subject to mitigating circumstances and therefore preparation of a statement of mitigating circumstances was not necessary. Nonetheless, the trial court listened to defense counsel argue in favor of striking the firearm enhancement. Defense counsel also argued that several other mitigating factors - including defendant's health conditions and his lack of a criminal record - warranted a lesser sentence.
The trial court asked whether defendant had anything to add. Defendant responded: "As [my current attorney] said -- I agree wholly with what he said, and I will agree with him at this time."
B.
Analysis
We conclude there was no error because (1) the trial court was not required to grant an inapplicable motion, (2) defendant did not exercise his right to discharge counsel even after the trial court informed him of this right, and (3) no showing of good cause for a continuance was made.
1. Marsden Motion
In Marsden, supra, 2 Cal.3d 118, the California Supreme Court held that a trial court must conduct a hearing when a defendant requests substitution of appointed counsel on the basis of constitutionally inadequate representation. (Id. at p. 123; People v. Lara (2001) 86 Cal.App.4th 139, 150 (Lara).) To prevail on the motion, a defendant "must show good cause for replacing appointed counsel . . . ." (Lara, at p. 151.) The denial of a Marsden motion is reviewed for abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230.) Here, the trial court properly denied defendant's Marsden motion because defendant's trial attorney was not appointed. There is no abuse of discretion in denying an inapplicable motion.
2. Discharge of Retained Counsel
Criminal defendants have a constitutional right to the effective assistance of counsel that includes the right to retain counsel of their choice. (People v. Gzikowski (1982) 32 Cal.3d 580, 586.) As a corollary, "a defendant may discharge his [or her] retained counsel of choice at any time with or without cause." (Lara, supra, 86 Cal.App.4th at p. 152.) This right is not absolute. A trial court has discretion to deny substitution of retained counsel "to ensure orderly and expeditious judicial administration if the defendant is 'unjustifiably dilatory or . . . arbitrarily desires to substitute counsel' " in an untimely manner. (Id. at p. 153, quoting People v. Blake (1980) 105 Cal.App.3d 619, 623-624.)
Here, the trial court informed defendant that he had the right to discharge his attorney. The trial court ensured this "made sense" to defendant, who responded affirmatively. However, defendant did not discharge his trial attorney. Other than defendant's litany of complaints about defense counsel's trial performance, defendant provided no indication he intended to discharge his attorney or hire a new one. Indeed, defendant's only statement regarding his attorney after being reminded of his right to discharge counsel was to "wholly" endorse his attorney's argument regarding sentencing. Defendant's lack of any indication he wished to discharge his attorney after expressly being informed of the right can only be interpreted as a waiver of that right. (People v. Vera (2004) 122 Cal.App.4th 970, 981-982.) The trial court did not err in failing to allow a discharge defendant did not request.
3. Motion for Continuance
We also reject defendant's contention the trial court erred in denying the motion for continuance.
" 'The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge.' (People v. Howard (1992) 1 Cal.4th 1132, 1171.) 'The burden is on [the defendant] to establish an abuse of judicial discretion . . . .' (People v. Rhines (1982) 131 Cal.App.3d 498, 506.) '[A]n order of denial is seldom successfully attacked.' (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2502, p. 3002.) . . . [¶] An important factor for a trial court to consider is whether a continuance would be useful." (People v. Beeler (1995) 9 Cal.4th 953, 1003, overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462.)
Because the motion for continuance was premised on defendant's wish for a Marsden motion, the denial of the Marsden motion mooted the need for a continuance. There was also no need for a continuance to allow newly retained counsel to prepare because defendant never discharged his retained counsel. Notably, defendant's trial counsel did not request a continuance at the sentencing hearing and was prepared to represent him at sentencing. Defense counsel vigorously argued for a reduced sentence, and the argument received approval from defendant. Accordingly, the trial court did not err in denying the motion for continuance.
III
Firearm Enhancement
In supplemental briefing, defendant argues we must remand this case for resentencing to allow the trial court to exercise its sentencing discretion to impose a lesser enhancement. The Attorney General argues remand would be futile because of the clear statement by the trial court that it would not reduce the sentence regardless of its discretion to strike the enhancement. We conclude remand would be futile.
At the time of defendant's sentencing in October 2017, the trial court was barred from striking the firearm enhancement. However, on January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) became effective. (Stats. 2017, ch. 682, §§ 1 & 2.) That measure vested trial courts with discretion to strike firearm enhancements imposed under sections 12022.5 and 12022.53. (§§ 12022.5, subd. (c); 12022.53, subd. (h).) Senate Bill No. 620 applies retroactively to defendant, as the legislation became effective before his case is final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
A remand for resentencing under the new statutory scheme is not automatic. We decline to remand when 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.) We review the trial court's statements in assessing whether the court clearly indicated its intent to impose the enhancement regardless of discretion to strike.
In this case, the trial court clearly indicated it intended to impose the 25-year sentence enhancement even if it had discretion to strike. At sentencing, the trial court addressed the issue of the firearm enhancement as follows:
"THE COURT: On the issue of the [section] 12022.53, I do find on the continuum of employing a firearm and firing it at somebody and killing somebody with that firearm, this is right at the outer edge in terms of premeditation, full contemplation and commitment to achieve the intended result of the death of the victim.
"I get . . . murders where one bullet does it - or the murder and facts around it allow for inferences that it was not the work of somebody absolutely committed to see someone else die. This murder is not one of those murders. This is one where several steps were taken and no effort was spared in order to assure by virtue of the last bullet fired that the victim died.
"So I do find that in the exercise of the discretion that would be prospectively conferred on the Court under [Senate Bill No.] 620, chaptered as 682, that this is not one that warrants the exercise of discretion to set aside the imposition of the 25-to-life or the [section] 12022.53.
"So it will be very clear on this record that the reason I am imposing 25-to-life on the [section] 12022.53 is not because I feel - as present law requires that I must do so, it's because I feel that it's the right thing to do pursuant to the provisions of the bill that was chaptered, 682, that I am exercising my discretion, and I am going to impose that 25 years."
The trial court's recognition it would soon have discretion to strike the enhancement compels us to conclude remand is unnecessary in this case.
Defendant argues remand is nonetheless necessary based on the assertion that recent case law allows a trial court to select a lesser, uncharged enhancement instead of entirely striking the firearm enhancement. In so arguing, defendant relies on People v. Morrison (2019) 34 Cal.App.5th 217. In Morrison, the First District held the trial court has discretion to impose a lesser, uncharged enhancement for personal use of a firearm. (Id. at p. 222.) We need not consider whether Morrison reached the correct result because the trial court in this case indicated it believed 25-years to life to be "the right thing to do." The trial court several times touched on its finding that defendant's manner of murdering Caquelin constituted the exact circumstance warranting the 25-year personal use firearm enhancement. On this record, we determine remand would be futile.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
MAURO, Acting P. J. /s/_________
BUTZ, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.