Opinion
E069238
12-03-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID JERRY TORRES, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1101609) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed with directions. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant David Jerry Torres guilty of murder (Pen. Code, § 187, subd. (a)). The jury also found true that in the commission of the murder, defendant personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The trial court sentenced defendant to a total term of 40 years to life in state prison as follows: 15 years to life on the murder charge plus a consecutive 25 years to life for the firearm enhancement allegation pursuant to section 12022.53, subdivision (d).
All future statutory references are to the Penal Code unless otherwise stated. --------
On appeal, defendant contends that the case should be remanded to the trial court for resentencing to allow the trial court to exercise its discretion pursuant to a newly enacted statutory provision that grants a sentencing court the discretion to strike a firearm enhancement. The People concede that the matter should be remanded for resentencing.
We accept the People's concession regarding the effect of newly enacted amendments that grant a sentencing court authority to exercise discretion to strike or dismiss a firearm enhancement. We agree that because the judgment in this case is not final, defendant is entitled to have the trial court exercise the newly granted discretion regarding striking or dismissing firearm enhancements, which became effective on January 1, 2018. We therefore remand the case for resentencing to allow the trial court to exercise the discretion granted to it under sections 12022.5, subdivision (c) and 12022.53, subdivision (h).
II
FACTUAL BACKGROUND
In the evening on June 24, 2011, defendant and a cohort named Eddie approached a group of people at a San Bernardino County apartment complex. Defendant and Eddie displayed gang signs and said they were affiliated with the East Side Victoria criminal street gang. Eventually, a fistfight broke out and defendant shot one of the men once in the chest, resulting in his death.
Defendant was identified as the shooter in a photographic lineup by one witness and in court by another witness. Two witnesses were unable to identify defendant as the shooter, but all three witnesses identified Eddie as the second man present and involved in the fistfight. Defendant was one of the five contributors of DNA found on a hat left at the scene by the shooter. During an interview, defendant acknowledged being at the apartment complex on the night of the shooting "trying to kick it with some bitches" and "ended up . . . running into . . . this one guy."
III
DISCUSSION
As previously noted, the jury in this case found true an allegation that in the commission of the murder, defendant personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivision (d). That statute provides an additional and consecutive term of 25 years to life. On September 29, 2017, the trial court sentenced defendant to a term of 15 years to life for the murder conviction, plus a consecutive 25-year-to-life term for the firearm enhancement allegation pursuant to section 12022.53, subdivision (d).
Defendant contends the matter should be remanded for resentencing in light of recently enacted Senate Bill 620 which allows the trial court to exercise discretion with respect to striking the firearm enhancement. The People concede People v. Francis (1969) 71 Cal.2d 66 (Francis) is controlling and requires retroactive application of amended section 12022.53, subdivision (h), to all non-final judgments. We agree. Accordingly, we vacate the sentence and remand for resentencing.
When sentencing defendant in September 2017, the trial court lacked the authority to strike the firearm enhancement. (See, e.g., People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363, citing former § 12022.53, subd. (h).) However, after defendant's sentencing, the Legislature enacted Senate Bill 620, which became effective on January 1, 2018. (Sen. Bill No. 620 (2017-2018 Reg. Sess.).) This bill amended sections 12022.5 and 12022.53 to give trial courts discretion, "in the interest of justice pursuant to Section 1385," to "strike or dismiss an enhancement otherwise required to be imposed" by those statutes (former § 12022.5, subd. (c), as amended by Stats. 2017, ch. 682, § 1, former § 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) The discretion conferred by the statute "applies to any resentencing that may occur pursuant to any other law." (Ibid.)
We agree with all of the other appellate courts that have addressed this issue that the amendments to sections 12022.5 and 12022.53 apply retroactively to cases not yet final on appeal. (People v. Vela (2018) 21 Cal.App.5th 1099, 1113-1114, citing In re Estrada (1965) 63 Cal.2d 740, 742-748 [courts presume that absent evidence to the contrary, the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal] & Francis, supra, 71 Cal.2d at pp. 75-76 [the rule expressed in Estrada also applies to an amendment that grants the trial court discretion to impose a lesser penalty]; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; see People v. Hurlic (2018) 25 Cal.App.5th 50, 56.) As explained in People v. Arredondo (2018) 21 Cal.App.5th 493, 507, "a statute which lessens the penalty for a crime gives rise to an inference the Legislature intended the change to apply to all nonfinal cases. [Citations.] Provisions which give trial courts discretion to reduce a sentence previously required by the Penal Code are nonetheless changes which benefit offenders who committed particular offenses or engaged in particular conduct and thereby manifest an intent by the Legislature that such offenders be given the benefit of that discretion in all cases which are not yet final."
Here, defendant's case was not final at the time Senate Bill 620 went into effect. The People concede that Francis, supra, 71 Cal.2d 66 "is controlling" authority with respect to the issue of whether the amendments enacted in Senate Bill 620 apply to allow for resentencing in this case. The People further concede that the proper remedy in this case is to remand the case to allow the trial court to exercise its discretion to strike the true finding on the section 12022.53 enhancement.
We agree with the People's concessions. We therefore remand the matter to the trial court to conduct a new sentencing hearing for the limited purpose of allowing the court to exercise its discretion under section 1385 to decide whether to strike the section 12022.53, subdivision (d) enhancement or to again impose the enhancement term.
IV
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing to allow the trial court to exercise its discretion as to whether the firearm enhancement under section 12022.53, subdivision (d), should be stricken pursuant to section 1385. (§§ 12022.5, subd. (c), 12022.53, subd. (h).) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.