Opinion
C083094 C083480
07-18-2018
THE PEOPLE, Plaintiff and Respondent, v. KELLY ANDREW THOMAS, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. AVERY MARQUES HILL, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F05755)
These consolidated appeals arise from a shooting at an infant's birthday party in a park that left one man dead and several people injured. A jury found codefendants Kelly Thomas and Avery Hill guilty of murder and three counts of attempted murder, and found true several special allegations. Thomas and Hill raise several arguments on appeal.
Thomas argues: (1) the trial court erred in failing to instruct sua sponte on manslaughter and attempted manslaughter based on provocation, sudden quarrel, or heat of passion, and the error was prejudicial; (2) trial counsel was ineffective for failing to request a pinpoint instruction on provocation relating to the murder charge; (3) the prosecutor committed misconduct by arguing the presumption of innocence no longer applied after the evidence had been presented; and (4) the great bodily injury findings with respect to two attempted murder convictions were not supported by substantial evidence. None of these arguments is persuasive.
Hill argues: (1) the prosecutor committed misconduct by arguing the nontestifying New Money members would not have testified favorably to Hill; (2) the prosecutor committed misconduct by making arguments that undermined the presumption of innocence and shifted the burden of proof to Hill; (3) the convictions and sentences for premeditated and deliberate attempted murder violated Hill's federal constitutional right to due process because the prosecution did not affirmatively plead the premeditation and deliberation allegation in the accusatory instrument as required by statute; and (4) the trial court erred in finding Hill's prior juvenile adjudication for attempted robbery was a prior strike conviction within the meaning of the three strikes law. The last two arguments have merit.
In supplemental briefing, Hill and Thomas request that we remand their cases for resentencing to permit the trial court to exercise its discretion to strike the firearm enhancements in light of Senate Bill No. 620's amendments to Penal Code sections 12022.5 and 12022.53. The People oppose arguing there is no reason to believe the sentencing court would exercise its discretion to strike the firearm enhancements. We agree with defendants that these cases should be remanded for the trial court to consider exercising its discretion to strike the firearm enhancements.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants do not challenge the sufficiency of the evidence supporting their convictions, except for Thomas's claim that there was insufficient evidence to support the great bodily injury findings with respect to two victims. As such, we set forth the pertinent background facts pertaining to the appeal here and discuss the evidence regarding Thomas's challenge to the great bodily injury findings in that section of the opinion. Any other pertinent facts to our disposition are contained in the discussion of defendants' contentions.
I
The Pertinent Facts
On April 8, 2013, Lawrence Smith was found shot dead in his apartment. Smith was part of a group of friends known as New Money. Other members of New Money included Jacoby James, Elijah Odums, Darnell Hunter, Chris Elliott, and William Kellum. Members of New Money believed Hill and Thomas had a hand in Smith's death. Thomas told his girlfriend, Chiffon Rabon, that Kellum was after him because Kellum believed Thomas had killed Smith.
On February 25, 2014, three men fired several gunshots at Thomas outside his apartment. Thomas fled the scene, called Rabon and told her to get the car and back it up to a garbage can, where he got in. Thomas told Rabon that Kellum and two other men had shot at him. Thomas and Rabon went to Thomas's mother's house and then stayed in San Jose for a few weeks before moving to Las Vegas. They moved because they were concerned "about getting shot at by these guys." Thomas believed New Money had put a $100,000 bounty on his head.
Two and one-half months later, on May 10, 2014, Dajonna Jingles hosted a birthday party for her son, whose father was Smith. About 40 to 50 people attended the party in a park, including New Money members. Rhinehart and his son, J. R., were playing basketball at the park at the same time. Three men from the party played basketball with them at different times, and then returned to the party.
Rhinehart called Hill at approximately 4:00 p.m. and they exchanged several calls thereafter. While Rhinehart was on the phone, he told J. R. they were going home and to get in the car.
As Rhinehart and J. R. walked to their vehicle, two men walked across the basketball court toward the party and started shooting. People at the party scattered and several were hit by gunfire, including James who died from a gunshot wound to the back.
II
The Trial And Verdicts
Hill, Thomas, and Rhinehart were charged with the first degree murder of James and six counts of attempted murder. They were tried at the same time but with separate juries. Rhinehart's jury acquitted him on all charges. Hill's and Thomas's respective juries found them guilty of the first degree murder of James, and found true an associated firearm enhancement allegation under Penal Code section 12022.53, subdivision (d). The juries further found both defendants guilty of three counts of attempted murder, and found true two special allegations for each attempted murder conviction: (1) defendants attempted willful, deliberate and premeditated murder; and (2) defendants "used and intentionally and personally discharged a firearm, and thereby proximately caused great bodily injury." Thomas was further found guilty of being a felon in possession of a firearm. Defendants appeal.
DISCUSSION
I
Unconvincing Contentions
A
Thomas
There Was No Evidence To Support A Heat Of Passion Instruction
Thomas argues the court had a duty to sua sponte instruct the jury on voluntary manslaughter and attempted voluntary manslaughter based on provocation and the theory of sudden quarrel and heat of passion. As Thomas acknowledges, however, the duty to instruct on lesser included offenses, or a theory thereof, only arises if there is substantial evidence to support the instruction. (People v. Breverman (1998) 19 Cal.4th 142, 155 [every lesser included offense, or theory thereof, supported by the evidence must be presented to the jury]; People v. Barton (1995) 12 Cal.4th 186, 203 [trial court must instruct on lesser included offenses supported by substantial evidence].) We find no error.
"Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter." (People v. Beltran (2013) 56 Cal.4th 935, 942.) "A heat of passion theory of manslaughter has both an objective and a subjective component." (People v. Moye (2009) 47 Cal.4th 537, 549.) To satisfy the objective element, "the accused's heat of passion must be due to 'sufficient provocation.' " (Ibid.) " 'The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations].' " (Id. at p. 550.)
To satisfy the subjective element, "the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.] 'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." [Citations.]' [Citation.] ' "However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . ." [Citation].' " (People v. Moye, supra, 47 Cal.4th at p. 550.)
Thomas argues there was substantial evidence of provocation based on New Money's attempt on his life and the bounty placed on his head. He further argues that, although "[t]he evidence on [whether Thomas acted under a heat of passion in the moment of the shooting] is less clear," it is "by no means absent" because it may be inferred that he appeared at the party to get New Money members "to retreat from their campaign to kill him, and in that moment a sudden quarrel erupted." Thomas cites no evidence in the record to support this proposition and we find none either. His only citation to the record on this point is to his trial counsel's closing argument, which is not evidence. (Evid. Code, § 140; People v. Kiney (2007) 151 Cal.App.4th 807, 815 ["unsworn statements of counsel are not evidence"].) Speculation does not support reversal. (See People v. Pride (1992) 3 Cal.4th 195, 250.)
In his reply brief, Thomas notes there was testimony at the preliminary hearing that he went to the park on the day of the shooting to talk to Kellum about the " 'money on his head and the threats to [his] family and the rumors.' " This testimony is also not evidence in the jury trial. (People v. Backus (1979) 23 Cal.3d 360, 394.)
Thomas's additional argument that the jury could have found he acted "preemptively, as a result of the death threats and violent attempt on his life, and acted under the reasonable belief that if he did not act, New Money would eventually kill him," does not satisfy the subjective requirement either. The problem with Thomas's theory is that, if the mere fact that he reasonably believed they would "eventually" kill him was sufficient to invoke heat of passion, it would eviscerate the fundamental element of the heat of passion theory -- the temporal nexus between the provocation and the fatal act.
The lapse of more than two months between the attempt on Thomas's life and the park shooting with no intervening contact or incident does not meet the temporal nexus requirement for the provocation or heat of passion instruction. (See People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1235-1236; People v. Pride, supra, 3 Cal.4th at p. 250.) Thus, the trial court had no duty to sua sponte instruct the jury on such a theory.
B
Thomas
Trial Counsel Was Not Ineffective
Thomas next argues his trial counsel's failure to request a pinpoint instruction on provocation as it related to premeditation and the degree of murder constituted ineffective assistance of counsel. An instruction to the effect that, even though the provocation sufficient to reduce a murder to voluntary manslaughter is not present, it may be sufficient to negate premeditation and deliberation reducing the crime from first to second degree murder, is a "pinpoint" instruction that the court may give upon request but one that a court is not required to give sua sponte. (People v. Rogers (2006) 39 Cal.4th 826, 877-880.) "To show ineffective assistance of counsel, defendant has the burden of proving that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." (People v. Kelly (1992) 1 Cal.4th 495, 519-520.)
Provocation may negate the elements of premeditation and deliberation required for first degree murder, reducing the crime from first to second degree murder. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1333.) While it is true that the " 'existence of provocation which is not "adequate" to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation,' " there must be evidence from which a jury can determine "that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately." (People v. Wickersham (1982) 32 Cal.3d 307, 329, italics added, disapproved on other grounds in People v. Barton, supra, 12 Cal.4th at pp. 200-201.)
As we explained ante, there was no such evidence. Thus, Thomas's trial attorney cannot be faulted for failing to request an instruction unwarranted by the evidence; that is, his representation cannot be said to have fallen below an objective standard of reasonableness. (See People v. Hendricks (1988) 44 Cal.3d 635, 643 [trial court is "under no duty to give a requested instruction when there is no substantial evidence in support"].)
C
Thomas
No Prosecutorial Misconduct Occurred
Thomas argues the prosecutor committed misconduct by telling the jury it had " 'the power to remove, [sic] cloak the presumption of innocence from the defendant,' " and, in rebuttal closing, stating: " 'Up to this point in time, he [Thomas] has been cloaked in the presumption of innocence, which by all rights, he has the right to. It's time for that cloak to be removed.' " Thomas believes "there is a reasonable likelihood one or more jurors understood the prosecutor's argument to mean that the presumption of innocence no longer applied after the evidence had been presented." He further argues his trial counsel was ineffective for failing to object to the prosecutor's statements because an admonition would have cured the harm.
Thomas argues People v. Cowan (2017) 8 Cal.App.5th 1152 is instructive, but "concedes the prosecutor's statements here are less obviously misleading than in Cowan." In Cowan, the prosecutor told the jury: " 'Let me tell you that presumption [of innocence] is over. Because that presumption is in place only when the charges are read. But you have now heard all the evidence. The presumption is gone.' " (Id. at p. 1154.) The appellate court held it was misconduct "to misinform the jury that the presumption of innocence is 'gone' prior to the jury's deliberations." (Id. at p. 1159.) The court explained, "[t]he presumption of innocence continues during the taking of testimony and during jury deliberations until the jury reaches a verdict." (Ibid.)
Thomas argues, "[i]t is reasonable that one or more jurors interpreted the words 'up to this point in time, he [Thomas] had been cloaked in the presumption of innocence' to mean that the presumption of innocence did not continue past the taking of evidence." We disagree. "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Centeno (2014) 60 Cal.4th 659, 667.)
We look at the entirety of the prosecutor's argument and note that, in the portion identified by Thomas, the prosecutor actually said: "Now you heard from the testimony of over 80 witnesses. The case has taken a number of weeks to try. At the end of the day, this is not my decision to make, not the detectives' decision to make, it is not even the Judge's decision to make, there are only 12 people on the planet who have the power to remove, [sic] cloak the presumption of innocence from the defendant. Those 12 are you. [¶] Up to this point in time, he [Thomas] has been cloaked in the presumption of innocence, which by all rights, he has the right to. It's time for that cloak to be removed. It's time for him to stand for what he is, a murderer, an attempted murderer, a felon who possessed a firearm when he had no right. [¶] And the People ask that you hold the defendant responsible for his conduct on the 10th of May and return guilty verdicts and true findings. I thank you for your time and attention throughout this case. I leave the People's case and its cause in your hands. Thank you."
The prosecutor very clearly indicated that the cloak of innocence could only be removed by the jury. Nothing in the prosecutor's statement indicates that the presumption of innocence was " 'gone' prior to the jury's deliberations," as in Cowan. (People v. Cowan, supra, 8 Cal.App.5th at p. 1159.) Here, the prosecutor accurately told the jury that it had the ability to remove the cloak of the presumption of innocence by returning guilty verdicts. Moreover, directly after the prosecutor's rebuttal closing argument, the court instructed the jury on the presumption of innocence. The trial court also instructed the jury that, if an attorney's statement conflicted with the law as stated by the court, the jury must follow the court's instructions. We presume the jury followed those instructions. (People v. Charles (2015) 61 Cal.4th 308, 324, fn. 8; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 447.) Thomas points to nothing in the record indicating the jury understood or applied the prosecutor's statement in any improper or erroneous manner.
Because there was no prosecutorial misconduct, Thomas's trial counsel was not ineffective for failing to register an objection to the prosecutor's closing argument.
D
Thomas
The Great Bodily Injury Findings Are Supported By Substantial Evidence
Thomas argues the jury's findings with respect to two attempted murder convictions that he discharged a firearm causing great bodily injury to Kellum and Elliott under Penal Code section 12022.53, subdivision (d) must be reversed because they are not supported by substantial evidence. He relies on the fact that Kellum and Elliott did not testify, no physician testified, and no medical records were introduced regarding their injuries. He claims "[t]he only evidence of their injuries came from an investigator obtaining gunshot residue samples; she testified that Elliott had been wounded in the left hip, thigh, and back, and Kellum in the left lower leg." He argues, "aside from the fact that both victims suffered gunshot wounds, there was no evidence of the nature of the wounds or the effect of the injury upon the physical condition of the men who were shot. There was no evidence either victim felt pain; there was no evidence that the injuries were penetrating wounds or superficial wounds."
Thomas does not challenge the same finding regarding the attempted murder conviction as to Stevenson. He believes one could reasonably infer from the five wounds in Stevenson's hand and legs, and his hospitalization for two weeks that Stevenson suffered great bodily injury.
Penal Code section 12022.7, subdivision (f) defines "great bodily injury" as "a significant or substantial physical injury." Whether a particular victim has suffered physical harm that amounts to great bodily injury is typically a question of fact to be resolved by the jury. (People v. Cross (2008) 45 Cal.4th 58, 64.) "Proof that a victim's bodily injury is 'great' . . . is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury. (Id. at p. 66, italics added.) "A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Clearly it is the trier of fact that must in most situations make the determination." (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836.) " 'If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.' " (People v. Wolcott (1983) 34 Cal.3d 92, 107.)
Our review of the record indicates Thomas did not provide a complete representation of the evidence presented to the jury. The forensic investigator not only testified regarding her observations of Kellum's and Elliott's injuries at the respective hospitals, she also identified photographs she took of those injuries, which were presented to the jury during her testimony. Thus, the jury had the opportunity to observe and assess the nature and extent of the injuries, including whether the wounds were penetrating or superficial. Elliott was shot in three areas -- his left hip, upper thigh, and back -- and required "medical procedures." Kellum was shot in the left lower leg. He required surgery and remained in the hospital for at least ten days after the shooting.
Based on this record, sufficient evidence was presented for the jury to determine the gunshot wounds qualified as great bodily injury. (See People v. Mendias (1993) 17 Cal.App.4th 195, 199-201 [great bodily injury finding upheld where victim shot in thigh and suffered burning sensation].) We will not disturb the jury's findings on appeal.
E
Hill
No Prosecutorial Misconduct Occurred
Hill argues the prosecutor committed two instances of misconduct through statements made during his closing rebuttal argument. As stated ante, we review the prosecutor's statements in the context of the whole argument and the instructions, and we do not infer that the jury drew the most damaging meaning from the prosecutor's statements. (People v. Centeno, supra, 60 Cal.4th at p. 667.) We also note that "[i]t is settled that 'even otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, does not constitute misconduct.' " (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1313, disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.)
The People assert both prosecutorial misconduct claims are forfeited because Hill failed to object to the prosecutor's statements at trial, no misconduct occurred, and, even if misconduct occurred, defendant suffered no prejudice. We need not decide the issue of forfeiture because we conclude that no prosecutorial misconduct occurred. Further, because no prosecutorial misconduct occurred, trial counsel was not ineffective for failing to register an objection to the prosecutor's closing rebuttal argument, as Hill contends.
First, Hill asserts the prosecutor argued that "the testimony of New Money members who were not called to the stand would not have helped Hill's claim of self[-]defense." Specifically, he contends "[i]t is extremely likely the jury took the comment to mean the prosecutor was aware of what New Money members would have said on the stand." We see no indication of what Hill asserts. The prosecutor responded to Hill's closing argument that he questioned how the prosecution could "disprove self-defense without calling the members of New Money to the stand."
The prosecutor merely pointed to the testimony of Aaron Stevenson (which yielded no useful facts or information) and an officer's testimony that his questions to Stevenson and Elliott at the scene were met with no responses. He then said, "[i]n terms of what it is that they [other New Money members] would provide you information [sic], you heard from Mr. Stevenson, it was virtually nothing." There was no indication to the jury that the prosecutor knew what the other New Money members would have said, just as Hill's counsel did not indicate that he knew what such witnesses would have said. The prosecutor further stated it was immaterial what New Money members would have said given the testimony of other witnesses and the fact that "not one of them said New Money fired first." Additionally, the court instructed the jury that it must decide the facts based on the evidence presented at trial, and that attorney statements are not evidence. We presume the jury followed the court's instructions. (People v. Johnson (2015) 61 Cal.4th 734, 770.)
Second, Hill asserts the prosecutor impermissibly undermined the presumption of innocence and shifted the burden of proof to Hill when the prosecutor "argued that the question for the jury in evaluating the circumstantial evidence in regard to self[-]defense was whether [defendant] had come up with a reasonable explanation consistent with innocence as an alternative to the prosecution theory of the case." Hill takes one sentence from the prosecutor's closing rebuttal argument out of context. When reviewing the sentence in the context of the whole argument, the prosecutor merely discussed the weight of the evidence -- indicating that if all the evidence points to guilt and none of the evidence points to innocence, the prosecution has met its burden. The prosecutor argued that there was no evidence to support self-defense in this case. His statement did not shift the burden of proof to Hill. Further, the trial court clearly instructed the jury on the issue of burden of proof and presumption of innocence, which we presume the jury followed. (People v. Johnson, supra, 61 Cal.4th at p. 770.)
II
Meritorious Contentions
A
Hill's Juvenile Adjudication Did Not Qualify As A Prior Strike Conviction
Hill argues and the People concede that the trial court erroneously found his prior sustained juvenile adjudication for attempted robbery constituted a strike. We agree. The only felony offense for which Hill was adjudged a ward of the juvenile court was attempted robbery, which is not listed in Welfare and Institutions Code section 707, subdivision (b). Because Hill was not adjudged a ward of the court based upon an offense in that subdivision, the court erred in applying the strike enhancement and resentencing is warranted. (Pen. Code, § 1170.12, subd. (b)(3); People v. Garcia (1999) 21 Cal.4th 1, 15.)
B
Hill's and Thomas's Premeditated Attempted Murder Life Terms Must Be Stricken
Attempted murder is generally punishable with a term of five, seven, or nine years. (Pen. Code, § 664, subd. (a).) However, "when the crime attempted is 'willful, deliberate, and premeditated murder,' the person guilty of that attempt shall be subject to the punishment of imprisonment for life with the possibility of parole." (People v. Bright (1996) 12 Cal.4th 652, 656, quoting Pen. Code, § 664, subd. (a), overruled on another point in People v. Seel (2004) 34 Cal.4th 535, 541.) Penal Code section 664, subdivision (a) provides, "[t]he additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact."
Hill contends the life sentences for the three attempted murder convictions violated Penal Code section 664, subdivision (a) and his federal due process rights because the prosecution failed to affirmatively plead the attempted murders were committed willfully, deliberately, and with premeditation. He is correct that the felony complaint did not contain such an allegation and the People do not contend otherwise. The People contend, however, Hill forfeited this claim of error by failing to object to the "instructions or jury forms" at trial. In this regard, the People rely on our Supreme Court's decision in People v. Houston (2012) 54 Cal.4th 1186 (Houston). Hill contends this case is more like People v. Arias (2010) 182 Cal.App.4th 1009 (Arias) and our recent decision in People v. Perez (2017) 18 Cal.App.5th 598 (Perez). We discuss these cases in chronological order.
In Arias, "the charging document alleged defendant unlawfully and with malice aforethought attempted to murder [two people], but did not allege the attempted murders were willful, deliberate, and premeditated. Nor did [those counts] reference subdivision (a) of section 664. No request was made to amend the information to include the required allegations, and nothing in the record suggest[ed] the information was ever amended. Nevertheless, the trial court instructed that if the jury found defendant guilty of attempted murder, it [had to] make a separate determination of whether the prosecution proved the attempted murder was done willfully and with premeditation and deliberation. The jury's attempted murder verdicts did not include special findings as to premeditation and deliberation, but found 'first degree attempted murder' as to both victims. At sentencing, the trial court imposed the section 664, subdivision (a) punishment of life in prison for the attempted murder convictions." (Arias, supra, 182 Cal.App.4th at p. 1017, fn. omitted.) The People argued the defendant forfeited his claim by failing to challenge the adequacy of the pleading in the trial court. (Ibid.) The appellate court disagreed.
The Arias court relied on our Supreme Court's decision in People v. Mancebo (2002) 27 Cal.4th 735. (Arias, supra, 182 Cal.App.4th at p. 1017.) "In Mancebo, the court found no waiver, despite the defendant's failure to object at the time of sentencing, because the imposition of a sentencing enhancement based on an unpled enhancement allegation in violation of statutory pleading requirements amounted to an unauthorized sentence." (Arias, at p. 1017.) The Arias court concluded the violation of Penal Code section 664, subdivision (a)'s pleading requirement "was no mere formal defect in the information. Rather, defendant was not given notice of the special sentencing enhancement that would be used to increase his punishment from a maximum of nine years to a life term." (Arias, at p. 1020.) "In short, the prosecution has not complied with the notice requirements imposed by section 664, the defendant had no actual notice of his risk of an enhanced sentence, the life terms were stricken, and the case was remanded for resentencing." (Perez, supra, 18 Cal.App.5th at p. 616.)
Like Arias, in Houston, the indictment did not allege that the attempted murders were deliberate and premeditated. (Houston, supra, 54 Cal.4th at p. 1226.) During trial, the court presented the parties with a draft of the verdict forms, which required the jurors to determine whether the attempted murders were willful, deliberate, and premeditated. (Ibid.) The court sought to clarify this issue, stating its understanding that the prosecution intended to charge premeditated attempted murder -- " 'the type of attempted murder [that is] punished by life imprisonment rather than five, seven, nine.' " (Ibid.) The court explicitly told the parties to notify the court if this was not correct. (Ibid.) A week later, the trial court announced its intent to have the verdict form set forth deliberate and premeditated attempted murder as a special finding. (Ibid.) At the close of evidence, the court instructed the jury on the definition of attempted murder, and directed the jury to determine whether the attempted murders were willful, deliberate, and premeditated. (Ibid.) The jury found that they were. (Ibid.) Defendant did not object before the court submitted the case to the jury or at sentencing. (Ibid.)
On these facts, our Supreme Court found the defendant "received adequate notice of the sentence he faced, and the jury made an express finding that the attempted murders were willful, deliberate, and premeditated. A timely objection to the adequacy of the indictment would have provided an opportunity to craft an appropriate remedy. Because defendant had notice of the sentence he faced and did not raise an objection in the trial court, he ha[d] forfeited this claim on appeal." (Houston, supra, 54 Cal.4th at p. 1228.) In reaching its decision, the court declined to decide whether Arias "erred in ruling that the defendant there did not forfeit his claim that the indictment was inadequate." (Houston, at p. 1229.)
Our Supreme Court declined to consider the propriety of Arias because it was "unclear when the trial court issued its proposed jury instructions and verdict forms to the parties and whether this issue was discussed." (Houston, supra, 54 Cal.4th at p. 1229.) The court instead distinguished Arias: "In contrast, the trial court here actually notified defendant of the possible sentence he faced before his case was submitted to the jury, and defendant had sufficient opportunity to object to the indictment and request additional time to formulate a defense. In addition, the jury was properly instructed and made an express finding that the attempted murders were willful, deliberate, and premeditated. On these facts, we conclude that defendant forfeited his claim that the indictment did not comply with section 664." (Houston, at p. 1229.)
In Perez, like in Arias and in Houston, the prosecution failed to allege premeditated attempted murder. (Perez, supra, 18 Cal.App.5th at p. 614.) Like Houston, but unlike Arias, the Perez jury "found that each of the attempted murders was willful, deliberate, and premeditated." (Perez, at p. 606.) The question before us was "whether the mere mention of the possibility of an enhanced sentence for premeditated attempted murder during the court's discussion of unrelated jury instructions impart[ed] the notice required by due process as described in [Houston] or whether . . . the rationale of [Arias was appropriate] in holding the sentence was unauthorized in light of the prosecution's failure to satisfy the express statutory requirement coupled with the failure to advise defendant of the potential enhanced penalty." (Perez, at p. 614.) We found the latter answer more appropriate.
We explained that, based on what we gleaned from the Houston decision, in the absence of the notice required under Penal Code section 664, it is important that the potential life sentence penalty be discussed with the defendant at trial. (Perez, supra, 18 Cal.App.5th at pp. 617-618.) "While the Supreme Court was willing to forgive the prosecutor's transgression in Houston, it was precisely because the trial court had provided what the prosecutor had failed to do; that is, the court was satisfied the defendant was accorded fair notice of the charges he faced and an adequate opportunity to object to or tailor his defense." (Id. at p. 618.)
We found that, "[u]nlike the trial court in Houston, which clearly telegraphed the issue for the defendant, the prosecutor's brief allusion to the attempted murder counts when discussing an unrelated jury instruction did not give defendant fair notice that his sentence could jump from a maximum of nine years to a life term for each of the four counts." (Perez, supra, 18 Cal.App.5th at p. 618.) To find otherwise would have meant "the prosecution can ignore its responsibility to plead premeditated attempted first degree murder as required by section 664, and a defendant forfeits his or her right to challenge the deficiency as long as the prosecutor at some point during trial mentions or alludes to the two types of attempted murder. Such a rule would eviscerate section 664, do violence to the meaning and rational of Houston, and undermine any fairminded understanding of notice and due process." (Perez, at p. 617.)
Here, the People point to no discussion during trial advising Hill of the potential life sentences associated with the attempted murder charges. Rather, the People argue "the defense was well aware of the prosecution's intent to prove that the attempted murders were willful, deliberate, and premeditated before the trial even began, as the prosecution included the issue in their trial brief in the proposed instructions, which was filed over a month before the jury was sworn to try the case." The trial brief itself does not address this allegation and, as Hill points out, other information attached to the trial brief did not assert the allegation either -- "the information proposed to be read to the jury did not include any changes incorporating the allegation" and "[n]either did the proposed verdict forms include any reference to premeditation and deliberation." Similar to Perez, we find "[t]he sentence[s] w[ere] unauthorized and we can find no forfeiture on these facts." (Perez, supra, 18 Cal.App.5th at p. 618.)
We note the People's brief was filed after our decision in Perez.
Although Thomas did not raise this argument, his life sentences for the three attempted murder convictions arose from the same complaint and pertinent facts as Hill's, and the People have identified no facts pertaining to Thomas necessitating a different outcome. Accordingly, we find his life sentences unauthorized as well.
We requested supplemental briefing from Thomas and the People on this issue. The People filed a supplemental brief, Thomas did not. --------
III
The Trial Court Should Exercise Its Discretion
On Hill's And Thomas's Firearm Enhancements
Hill and Thomas request we remand for the trial court to exercise its discretion to decide whether to strike their firearm enhancements. The People oppose arguing there is no reason to believe the sentencing court would exercise its discretion to strike the firearm enhancements. We agree with defendants that remand is necessary.
At the time of Hill's and Thomas's sentencing, the trial court had no power to strike the firearm enhancements. Under recent amendments to Penal Code sections 12022.5 and 12022.53, however, which were effective January 1, 2018, trial courts now have the power to do so. In People v. Woods (2018) 19 Cal.App.5th 1080, we held that Senate Bill No. 620 and the associated amendments to Penal Code sections 12022.5 and 12022.53 apply retroactively to nonfinal cases. (Woods, at pp. 1082, 1090-1091.)
The People agree these amendments apply retroactively, but argue there is no reason to believe that the sentencing court would exercise its new discretion to strike the firearm enhancement upon remand. With regard to Thomas, the People argue the trial court's denial of Thomas's request to strike his prior felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 indicates the trial court would not strike the firearm enhancements. With regard to Hill, the People argue the sentence imposed and the trial court's comments following sentencing indicate no purpose would be served by a remand. We do not have to decide this issue since the amendment to Penal Code section 12022.53, subdivision (h) expressly states that "[t]he authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Italics added.) Here, as explained ante, we are remanding for resentencing with regard to both Hill and Thomas. Therefore, the statute expressly provides for the court to exercise its discretion under these circumstances.
DISPOSITION
We reverse the finding that Hill's prior sustained juvenile adjudication for attempted robbery constituted a strike and the true findings on the willful, deliberate, and premeditated allegations regarding Hill's and Thomas's attempted murder convictions. We remand for resentencing accordingly. At that time, the court can consider exercising its discretion to strike the firearm enhancements imposed on Hill and Thomas, as provided in Penal Code section 12022.53, subdivision (h). In all other respects, the judgments are affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Butz, J.