Opinion
A153103
06-28-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ESLEY VICKERS, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-150921-5)
A jury convicted defendant Michael Esley Vickers, Jr. of second degree murder (Pen. Code, § 187, subd. (a)(1)) and found true the allegations that he personally used a firearm (§ 12022.53, subds. (b)-(d)). Following a bifurcated proceeding, the trial court found true the allegations that defendant had a prior strike (§§ 667, subds. (b)-(i), 1170.2) and a prior serious felony conviction (§ 667, subd. (a)(1)). The trial court sentenced him to 60 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends the judgment must be reversed because his second degree murder conviction and firearm enhancement are not supported by substantial evidence. Defendant further contends that reversal is required because the trial court erred by admitting into evidence certain rap lyrics that he had written. We affirm but remand the case to allow the trial court to determine whether to exercise its discretion to strike the firearm enhancement (§ 12022.53) as authorized by Senate Bill No. 620 (2017- 2018 Reg. Sess.) and the prior serious felony enhancement (§ 667) as authorized by Senate Bill No. 1393 (2017-2018 Reg. Sess.).
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prosecution Case
A. The Shooting
On December 21, 2014, Ricardo W. went to visit his friends Jessica R. and Julian D. at the recording studio they operated in the garage of their Antioch home. Jessica and Julian were cleaning the garage when Ricardo stopped by on his lunch break to pick up some of his music. Harold M., also known as "Fat Boy," was in the garage with his girlfriend. The garage door was open, as it was common for people in the neighborhood to stop by and visit.
At some point, defendant and Mercedes D. approached the open garage. Neither Jessica nor Julian recognized defendant or his companion. Defendant came inside the garage and began speaking with Harold. Jessica only heard "[a] little bit" of their conversation, but it seemed like defendant and Harold "were friends" who were "catching up." Jessica recalled that defendant might have asked if anyone had a gun for sale, but she acknowledged it was possible that defendant asked if anyone wanted to buy a gun.
Julian "couldn't hear" or "didn't pay attention too much" to the conversation but also thought he heard some mention of a gun. As Julian was sweeping the garage, he saw Harold run into the house. Julian turned and saw defendant holding a gun that was pointed at Ricardo, who had been standing near the door through which Harold ran to enter the house. Julian did not see defendant pull the trigger, but he heard the gunshot; the bullet hit Ricardo on his left side. Defendant then pointed the gun at Julian and Jessica. Before leaving the garage, defendant pointed the gun at Ricardo one more time.
Jessica heard the gunshot and remembered yelling, "My daughter," out of concern for her four-year-old daughter who was in the house. Jessica testified that she was looking down when she heard the gunshot. She looked up and saw defendant pointing a gun at her. Jessica saw Harold take off running into the house but could not recall if she saw Harold run before the shot was fired because everything happened very quickly and she was focused on her daughter's safety.
Jessica and Julian closed the garage door, brought Ricardo into the house and called the police.
B. Police Investigation
1. Initial Investigation
Police officers responding to the scene found Ricardo nonresponsive but with a pulse. Ricardo was taken to the hospital where he later died.
In the garage, police found a single bullet casing. On the street in front of the garage, they found a debit card with defendant's name on it. When police first spoke with Julian, he failed to mention that Harold had been present in the garage. Julian testified that he initially failed to tell the police about Harold because he "didn't want to snitch" and he feared retaliation in "the neighborhood[.]" Based on this fear, Julian told police Ricardo had been talking with defendant, which was not true, as the two did not know each other. Upon learning that Ricardo died from his injuries, Julian told police that Harold had been present at the time of the shooting.
2. Harold's Interview
Shortly after the shooting, Corporal James Stenger of the Antioch Police Department conducted a recorded interview with Harold. In the interview, Harold expressed his concerns about retaliation and asked that police keep his name out of the police report. Stenger honored this request. Harold said he walked from a convenience store to Julian's garage, where he rolled a "blunt" of marijuana that he smoked with everyone except Julian. About 20 minutes later, defendant and another man entered the garage.
Harold barely recognized defendant when he walked in because it had been a few years since he last saw him; he thought defendant's name was "Super Charge" or something related to speed. Defendant started talking to Harold and said, "I heard y'all eatin," which was slang for having money. Harold told police he was confused by this reference because he was "hella broke." Harold began to feel nervous when he saw defendant's leg shaking. Defendant then started accusing Harold of snitching on someone. Harold responded that he had not snitched on anyone and showed defendant a piece of paper from his wallet. As Harold took out his wallet, defendant said, "Oh you got a Gucci[,] you eat[i]n." Harold responded, "Why you keep sayin this?"
Defendant asked Harold, "Know anybody that got a hammer? You got a hammer?" Harold said that he did not have a "hammer" (slang for a gun) and began folding up the paper he had taken out. When Harold finished folding the paper, defendant stepped back, cocked his head, and said, "I ain't gonna lie lay it down." With a gun coming toward his head, Harold ran into the house, where he shoved Jessica's daughter out of the way. He ran through the house and out the front door.
Harold told police that it might have looked like a robbery, but he "honestly" believed defendant intended to kill him. Harold said that if it had been a robbery, defendant would have been trying to take the "expensive" studio equipment, and the "expensive" phones and tablets that were in plain view in the garage. Harold added, "So what that tell you? That tell you he just tryin' to kill me. It wasn't no robbery. His intentions was to tryin' to kill me."
3. Arrest and Mercedes' Statements to Police
A day after the shooting, police arrested defendant and Mercedes in Oakland. The gun was never found. Mercedes was injured during the arrest and was taken to the hospital, where he gave a recorded statement to Corporal Stenger. In it, Mercedes related that he and defendant had been looking for marijuana and were directed to the garage by neighbors. Defendant walked in and spoke with a "skinny dude" about how the "dude told on somebody or something." Mercedes did not know the man. Mercedes saw the man pull out a piece of paper, purportedly to show defendant that he had been "cited out" of an arrest. Mercedes heard defendant say, "nigger strip," which can refer to a robbery. Mercedes had been on the phone; when he looked up he saw the gun and saw the man run.
Later, while in custody, Mercedes gave police a second recorded interview. He affirmed that he had gone to the garage looking for marijuana. One of the men inside called out to defendant, calling him "Supercharge." Defendant began talking about the man having gone "to jail with somebody" and then having gotten out, asking, "Dude said you told on him?" The man responded, "Nah, I got a discharge paper." Mercedes heard defendant say, "[S]trip." Mercedes heard a gunshot, ran out of the garage, and drove away with defendant.
Prior to his trial testimony, Mercedes was convicted of robbery in Alameda County and was in custody at the time he was called to testify.
C. Trial Testimony of Harold and Mercedes
At trial, Harold testified he did not recognize defendant. He testified that "three or four" men came to garage but defendant was not one of them. Harold recalled hearing a gunshot and running through the house, but he never saw defendant with a gun. Harold denied telling police that defendant tried to kill him. He testified that there had been no discussion about "eating," and if there had been, it would have been about what he had had for lunch.
As Harold denied the majority of the statements he made to the police, his recorded interview was played for the jury.
Mercedes testified with use immunity. He did not remember any discussion about snitching. Mercedes did not recall hearing Harold tell defendant, "No, no, I didn't do that." Mercedes did not remember telling police that Harold "pulled out a piece of paper . . . saying, I got cited out." Mercedes also did not remember telling police about seeing a gun, defendant shooting it, or Harold running into the house.
Due to Mercedes's inability to recall his prior statements to the police, his recorded interviews were played for the jury.
II. Defense Case
Defendant testified in his own defense. He admitted having been convicted of felony robbery in 2007 and felony identity theft in 2011. He knew that, as a felon, he was not allowed to possess guns or ammunition. Defendant testified that he and Mercedes were very close and had seen each other every day up until December 2014. Defendant knew Harold, whom he described as "kind of like best friends with my cousin."
On December 21, 2014, defendant and Mercedes met up and hung out. They went to Antioch to "get some weed." They saw a man standing outside a driveway and asked if he had any marijuana for sale. The man pointed to a nearby house and said, "[t]hey got it in the garage."
Defendant and Mercedes walked to the garage. Once inside, defendant saw Harold; they hugged and began talking. Defendant saw a jar of marijuana and asked to buy some, and Harold told his girlfriend to measure some out. Defendant was armed with a concealed weapon. He had purchased the gun from "an older junkie guy" in Oakland the day before. The seller had offered the gun for $300, and defendant had "seen it was worth way more than that like street price." On cross-examination, defendant admitted that despite never checking if the gun worked, he knew "it was worth nothing less than a thousand" dollars. Hoping to make "some quick money" by reselling it, defendant purchased the gun. On the way to Antioch, he put the gun in the car armrest. When he got out of the car to ask about buying some marijuana, he hid the gun underneath his shirt because it was a "rough neighborhood" and he did not know who would be selling the marijuana.
Defendant denied ever telling Harold to "strip" or "lay it down." He denied confronting Harold about snitching. Defendant asked Harold if anyone wanted to buy the gun. Harold asked to see it, so defendant pulled it out. Defendant denied ever pointing the gun at anyone else. He denied intending to kill anyone. Defendant had his hand around the grip and a finger on the trigger. As he was showing it to Harold, "it just went off." Defendant had never checked to see if there was a bullet in the chamber. He saw Ricardo fall and heard Jessica scream. Defendant "just panicked." He did not check on Ricardo or provide any help. Instead, he ran to the car. As he and Mercedes drove away, defendant "freaked out" and told Mercedes that "[t]he gun just went off." When he got back to Oakland, defendant wiped his fingerprints off the gun and put it in a stranger's trash can in West Oakland.
Defendant was arrested the next day. He repeatedly lied to the police, denying that he had been in Antioch or that he knew anything about the shooting. He testified that he lied because he was scared.
While in custody, defendant rapped to someone on the phone. He testified that he wrote the lyrics in 2013 and that they described things that had not actually happened. Rather, they were just "the type of stuff the streets want to hear." The prosecutor played defendant's rap for the jury, and defendant testified about various statements in the song.
On cross-examination, defendant admitted that he brought the gun for protection, but he claimed he did not know it was loaded. When asked about the utility of using an unloaded gun to protect himself, defendant responded that he did not know if a bullet was in the chamber, but he knew the clip and magazine had bullets. Upon further questioning, defendant admitted that he knew he was carrying a loaded gun. He knew it was dangerous to handle a gun with a finger on the trigger, especially when other people were around. He acknowledged that he faced the barrel toward the people in the garage rather than at the ground and that this was dangerous. He acknowledged that his handling of the weapon was unsafe and that he killed Ricardo. III. Jury Instructions, Verdict, and Sentencing
Defendant was charged with murder (§ 187, subd. (a)) and attempted second degree robbery (§§ 211, 212.5, subd. (c), 664). Each count included a firearm enhancement. It was further alleged that defendant committed the murder while he was engaged in the commission of a felony (§ 190.2, subd. (a)(17)). The jury was instructed on first degree murder, including theories of premeditation and deliberation, lying in wait, and felony murder. (CALCRIM No. 521.) The jury was also instructed on second degree murder and the lesser offense of involuntary manslaughter. (CALCRIM Nos. 510, 520, & 580.) The jury found defendant guilty of second degree murder and not guilty of attempted robbery. The jury found the gun use allegation true. The trial court imposed a sentence of 30 years to life (a 15-year-to-life term, doubled based on a prior strike conviction), plus a consecutive term of 25 years for the gun enhancement (§ 12022.53, subd. (b)), and a consecutive term of five years for the prior serious felony conviction (§ 667, subd. (a)), resulting in an aggregate term of 60 years to life.
DISCUSSION
I. Substantial Evidence Supports Verdict
Defendant argues the evidence does not support the second degree murder conviction, so his conviction should be reduced to involuntary manslaughter. He claims there is insufficient evidence of malice because he accidentally fired the gun without knowing there was a bullet in the chamber. Relying on this same accidental shooting theory, he argues there was insufficient evidence that he intentionally used a firearm within the meaning of section 12022.53, subdivision (d).
"California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice." (People v. Rios (2000) 23 Cal.4th 450, 460.) Malice may be express (intent to kill) or implied (commission of life-threatening act with conscious disregard for life). (People v. Chun (2009) 45 Cal.4th 1172, 1181.) Second degree murder is an unlawful killing with malice aforethought, but without the willfulness, premeditation, and deliberation necessary for first degree murder. (§§ 187, subd. (a), 189; People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697.) By contrast, involuntary manslaughter is an unlawful killing without malice "in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b); see People v. Ferguson (2011) 194 Cal.App.4th 1070, 1082.)
An accidental shooting can constitute involuntary manslaughter or second degree murder (based on implied malice), depending on the defendant's mental state. (See People v. Thomas (2012) 53 Cal.4th 771, 814-815 (Thomas) [conviction for second degree murder for a claimed accidental shooting during an argument]; People v. Mehserle (2012) 206 Cal.App.4th 1125, 1142-1143 (Mehserle ) [conviction for involuntary manslaughter when a police officer mistakenly shot victim].) The mental state for involuntary manslaughter differs from the mental state for implied malice murder. " 'Implied malice contemplates a subjective awareness of a higher degree of risk than does gross [ (i.e., criminal) ] negligence, and involves an element of wantonness which is absent in gross negligence. [Citations.]' [Citation.] 'A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.] However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.' " (Mehserle, supra, at pp. 1141-1142; People v. McNally (2015) 236 Cal.App.4th 1419, 1426 [" '[t]he state of mind of a person who acts with conscious disregard for life [(i.e., implied malice)] is, "I know my conduct is dangerous to others, but I don't care if someone is hurt or killed" ' "].)
Defendant argues his testimony established that he accidentally fired the gun—without knowing it was capable of firing or that there was a bullet in the chamber—while displaying it for sale. Defendant relies on Jessica's testimony that it seemed like defendant and Harold were having a friendly conversation with no mention of a robbery and that she believed she saw Harold run into the house after the shot was fired. Finally, he maintains that the only crime supported by credible evidence was involuntary manslaughter because the jury necessarily disbelieved the testimony of Harold and Mercedes when it acquitted him of first degree murder, attempted robbery, and felony murder. We disagree.
"In reviewing the sufficiency of the evidence, we must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] '[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509.)
The jury reasonably found, based on substantial evidence, that defendant was guilty of murder, not manslaughter. Harold told police that he thought defendant wanted to kill him. Julian testified that he saw Harold run before the shot was fired. Harold and Mercedes each told police that defendant had accused Harold of snitching before defendant pointed the gun at Harold. Mercedes also told police that he saw defendant point the gun at Harold. Defendant attacks the credibility of Julian because he initially lied to police about Harold being present at the time of the shooting. He attacks the credibility of Harold and Mercedes because they were uncooperative witnesses who gave conflicting accounts of the shooting. However, these arguments ignore the substantial evidence standard of review and our role as a reviewing court. "[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.) That Harold and Mercedes recanted their statements at trial does not change the analysis. As the trier of fact, the jury was entitled to assess the veracity of the in-court testimony against the statements the witnesses made before trial. (CALCRIM No. 318.)
Contrary to defendant's contention, the jury's rejection of the prosecution's first degree murder and felony murder theories does not compel a finding of involuntary manslaughter. The jury could have found that defendant lacked the willfulness, premeditation, and deliberation necessary for first degree murder and still found that he acted with malice aforethought when he fired the gun. Similarly, the jury could have found that defendant did not commit felony murder because there was insufficient evidence that he attempted to rob Harold, but still found that he acted with implied malice when he fired the gun. The jury's rejection of what defendant refers to as "a botched robbery" theory does not signal a wholesale rejection of Harold's and Mercedes's recounting of the events. The jury could have rejected Mercedes's testimony regarding the attempted robbery but accepted other parts of his testimony. (CALCRIM No. 105 & CALCRIM No. 226.) What's more, Harold told police he did not think defendant wanted to rob him. Rather, Harold thought defendant wanted to kill him. If anything, the second degree murder verdict reflects that the jury accepted Harold's statements to the police.
The jury was not required to accept defendant's accidental shooting theory. Even if defendant was unaware that a bullet was in the chamber, he knew the gun had a clip and magazine containing bullets. Defendant's testimony that he brought the gun into the garage for protection—because the neighborhood was rough and because he did not know who would be selling the marijuana—supports an inference that he knew the gun was operational. The jurors could reasonably conclude that if defendant was going to use a gun to protect himself under these circumstances, he would do so only if knew the gun was loaded and ready to fire.
Even if defendant did not intend to kill Harold, his act of pulling out a loaded gun with his finger on the trigger and pointing it at Harold was "highly dangerous and exhibit[ed] a conscious disregard for life. In order to find defendant guilty of only involuntary manslaughter, the jury would have had to conclude both that the shooting was accidental and that defendant had acted without malice." (Thomas, supra, 53 Cal.4th at p. 815.) Based on the substantial evidence of implied malice, the jury properly convicted defendant of second degree murder. (See In re Russell H. (1987) 196 Cal.App.3d 916, 919-921 [substantial evidence of second degree murder based on implied malice when defendant pulled out gun during dispute over the price of drugs, cocked it, waved it around, and made threatening statements before it discharged].)
Because there is substantial evidence to support a reasonable inference that defendant knew the gun he pointed in Harold's direction was loaded and ready to fire, the jury could reasonably find the defendant guilty of second degree murder based implied malice. On these facts, there was also substantial evidence supporting the jury's finding that defendant personally and intentionally used a firearm that proximately caused Ricardo's death (§ 12022.53, subd. (d)).
In sum, there is no basis to overturn the jury's verdict regarding second degree murder or the firearm enhancement.
II. The Trial Court Did Not Err in Admitting the Rap Lyrics.
Over defendant's objection, the trial court admitted evidence of the rap lyrics written by defendant and performed over the phone while he was in custody. After the prosecutor played the song for the jury, defendant testified about the meaning of certain lyrics: (1) "free me" referred to his being in custody; (2) his statement that the last person he "tapped up got patched up" and "the bullets quarterback sacked him" did not refer to Ricardo; (3) when he said "that . . . telling man, he all over ratback, matter fact he selling to they are a rat pack," he meant that people who tell on others are rats; and (4) when he said, "[N]owadays you ain't got a body, you are irrelevant," he meant that you were not relevant unless you had killed someone.
Defendant contends the trial court prejudicially erred by admitting his rap lyrics because they were "not only an irrelevant expression of art, but also virtually certain to unduly prejudice [him] in the eyes of the jury." We disagree.
"Evidence Code section 352 provides the trial court with discretion to exclude otherwise relevant evidence if its probative value is substantially outweighed by the probability that admitting the evidence will unduly prolong the proceeding, prejudice the opposing party, confuse the issues, or mislead the jury." (People v. Zepeda (2008) 167 Cal.App.4th 25, 34-35.) For purposes of the statute, " 'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues." (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
Whether the lyrics constitute poetry is inconsequential. Their probative value pertained to defendant's state of mind regarding his view of snitches, gun violence, and the social status associated with killing. These matters were relevant to the charges he faced. (See People v. Zepeda (2008) 167 Cal.App.4th 25, 32-33 [rap lyrics probative of defendant's state of mind and criminal intent; People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373 [rap lyrics properly admitted over Evid. Code, § 352 objection where probative of defendant's motive and intent on the day of the killing].)
Contrary to defendant's claim, the rap lyrics were not more prejudicial than probative. (Evid. Code, § 352.) "The language and substance of the lyrics . . . did not rise to the level of evoking an emotional bias against defendant as an individual apart from what the facts proved." (People v. Zepeda, supra, 167 Cal.App.4th at p. 35.) Indeed, the lyrics depicted scenarios that were no more inflammatory than the evidence of defendant's conduct. The rap lyrics also played a minor role at trial. The trial court did not abuse its discretion in admitting this evidence.
In any event, in light of the substantial evidence pointing to defendant's guilt, we conclude any purported error in admitting the rap lyrics was harmless, as it is not reasonably probable defendant would have obtained a more favorable result had the lyrics not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 835.)
III. Firearm and Prior Serious Felony Enhancements
Defendant contends, the People concede, and we agree remand is necessary for the trial court to determine whether to exercise its discretion to strike the firearm enhancement pursuant to section 12022.53. We also agree remand is appropriate for the trial court to consider whether to exercise its discretion to strike the prior serious felony conviction enhancement pursuant to section 667, subdivision (a).
The Attorney General, not defendant, raised the issue of whether to strike the prior serious felony enhancement. Although defendant did not address the issue in his reply brief, we will assume he agrees remand is appropriate on this additional ground.
Senate Bill No. 620, which became effective on January 1, 2018, and Senate Bill No. 1393, which became effective on January 1, 2019, apply retroactively to this case. (People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091; People v. Garcia (2018) 28 Cal.App.5th 961, 971-972 (Garcia).) Senate Bill No. 620 amended section 12022.53, subdivision (h), to provide that " '[t]he 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.' " (People v. McDaniels (2018) 22 Cal.App.5th 420, 424 (McDaniels).) Similarly, Senate Bill No. 1393 amended section 667 to provide that "[t]he prosecuting attorney may move to dismiss or strike a prior serious or violent felony allegation in the furtherance of justice pursuant to Section 1385." (§ 667, subd. (f)(2); see Garcia, supra, 28 Cal.App.5th at p. 971.)
Unless the record reveals a clear indication that the trial court would not have stricken the enhancement even if at the time of sentencing it had the discretion to do so, remand is necessary. (McDaniels, supra, 22 Cal.App.5th at p. 425 [discussing remand in context of Senate Bill No. 620]; cf. People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081 [remand required regardless of record where court not aware full scope of discretion].) Nothing in the record indicates that the trial court would not have stricken the firearm enhancement if it had discretion to do so at the time. Accordingly, remand is necessary to the afford the trial court the opportunity to exercise its new sentencing discretion regarding the firearm enhancement.
Whether remand is required for the prior serious felony enhancement presents a closer question. The record reflects that the trial court denied defendant's Romero motion to dismiss his prior strike, a 2007 robbery conviction that also served as the basis for his prior serious felony enhancement. In denying the motion, the trial court acknowledged that it had discretion to strike the prior but found that this case fell "within the spirit and letter of the three strikes law," adding that "there's nothing about the defendant or his history that would make me be inclined to think that he should be given that leniency." Although these comments would appear suggest that the trial court would not have dismissed the prior serious felony enhancement, upon full consideration, and given that remand is necessary with regard to the firearm enhancement, we conclude that justice will best be served if the trial court is afforded an opportunity to decide whether to exercise its discretion to strike defendant's prior serious felony enhancement in light of Senate Bill No. 1393's amendments to sections 667 and 1385. We will remand for that purpose as well.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISPOSITION
The conviction is affirmed. The matter is remanded to the trial court to determine whether to strike the enhancements under sections 12022.53, subdivision (d), and 667, subdivision (a)(1), and if the enhancements are stricken, to resentence defendant.
/s/_________
BROWN, J. WE CONCUR: /s/_________
STREETER, ACTING P. J. /s/_________
TUCHER, J.