Opinion
C084720
03-21-2018
THE PEOPLE, Plaintiff and Respondent, v. TAVARES MONTEZ WATKINS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE013079)
Appointed counsel for defendant Tavares Montez Watkins has asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment. We will, however, remand the case for the trial court to exercise its discretion whether to lessen defendant's sentence pursuant to People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez).
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by complaint, deemed the information, with murder (Pen. Code, § 187, subd. (a)—count one) and felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)—count two). The information alleged that, in the commission of count one, defendant personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally used a firearm (§ 12022.53, subd. (b)). Defendant subsequently admitted he suffered a prior felony conviction for purposes of count two.
Unspecified statutory references are to the Penal Code. --------
Defendant entered a negotiated plea of no contest to count one and admitted he personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)) in exchange for a stipulated sentence of 40 years to life in state prison and dismissal of all remaining charges. The parties stipulated to the following factual basis for the plea: On June 14, 2016, defendant directed his girlfriend to drive the victim to a location, ordered the victim out of the car, and shot the victim in the chest at close range, causing the victim's death.
The trial court denied probation and sentenced defendant to an aggregate term of 40 years to life in state prison (15 years to life for count one plus a consecutive term of 25 years to life for the firearm enhancement). The court imposed fees and fines and awarded defendant 290 days of presentence custody credit.
Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.
On August 10, 2017, this court granted defendant's request to construe his notice of appeal to include matters based on the sentence or other matters occurring after the plea that do not affect the validity of the plea.
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a timely supplemental brief arguing the matter must be remanded for resentencing in light of the recent passage of Senate Bill No. 620 (2017-2018 Reg. Sess.; hereinafter Senate Bill 620), which will give trial courts discretion to strike firearm enhancements effective January 1, 2018. In addition to undertaking a review of the record as required by Wende, we will address the issues raised in defendant's supplemental brief.
As part of his negotiated plea, defendant admitted he personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)) in exchange for a stipulated state prison sentence of 40 years to life.
On April 21, 2017, the trial court sentenced defendant accordingly, imposing an aggregate term of 40 years to life, which term included a mandatory term of 25 years to life for the firearm enhancement. At that time, existing law prohibited the trial court from striking an allegation or finding that would make a crime punishable under section 12022.53. (§ 12022.53, former subd. (h) ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section"].)
On October 11, 2017, after defendant was sentenced but while his appeal was still pending, the Governor signed Senate Bill 620 which provided that, effective January 1, 2018, section 12022.53 was amended to permit the trial court to strike an enhancement for personally using (§ 12022.53, subd. (b)) or personally and intentionally discharging (§ 12022.53, subd. (c)) a firearm. (Stats. 2017, ch. 682, § 2.) As relevant here, the newly-amended section 12022.53 states as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
Section 1385 provides that a court may, "in furtherance of justice, order an action to be dismissed." (§ 1385, subd. (a).) Such discretion to dismiss "an action" pursuant to section 1385 extends to striking "factual allegations relevant to sentencing," including striking nonmandatory sentence enhancements. (People v. Hernandez (2000) 22 Cal.4th 512, 523, italics omitted; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530; People v. Jones (2007) 157 Cal.App.4th 1373, 1379-1381.)
Defendant contends, and the People concede, that because defendant's conviction is not yet final, the amendment to section 12022.53 would make him eligible for remand for resentencing and potential imposition of a reduced sentence and thus applies retroactively. (See People v. Brown (2012) 54 Cal.4th 314, 323-324 [exception to ordinary presumption that statutes operate prospectively where "the Legislature has amended a statute to reduce the punishment for a particular criminal offense"]; In re Estrada (1965) 63 Cal.2d 740, 748 [for a nonfinal conviction, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"]; People v. Francis (1969) 71 Cal.2d 66, 75-78 [remand required for resentencing where statute enacted during pending appeal gave trial court discretion to impose a lesser penalty].)
The People argue, however, that remand is inappropriate because the record clearly indicates the trial court would not have exercised its discretion to lessen defendant's sentence and there is no reasonable probability the court would do so on remand. (See Gutierrez, supra, 48 Cal.App.4th 1894, 1896 [where trial court indicated "it would not, in any event, have exercised its discretion to lessen the sentence" and "stated that imposing the maximum sentence was appropriate," "no purpose would be served in remanding for reconsideration"].)
The trial court accepted without hesitation the plea agreement, which included defendant's admission of the section 12022.53, subdivision (d) enhancement as well as a stipulated sentence of 40 years to life in state prison. In accepting defendant's plea, the court heard the stipulated factual basis for defendant's plea, which described defendant directing his girlfriend to drive the victim to a location, ordering the victim out of the car, and shooting the victim in the chest at close range. The court considered the probation report which, among other things, described defendant's callous and cruel conduct and listed eight circumstances in aggravation, and no circumstances in mitigation. The court also heard and considered the anguished impact statements of the victim's father and girlfriend. Finally, after accepting the plea but before imposing the agreed-upon 40 years to life sentence, the court found defendant ineligible for probation but noted that, even if defendant were eligible, the court "would have denied probation because if the [d]efendant were not in prison, he would be a danger to others."
Here, all the trial court said was it would not have exercised its discretion to release defendant on probation because he is a danger. That is not the same as saying the trial court would not have exercised its discretion to strike the firearms enhancement, resulting in a 15-year-to-life sentence rather than a 40-year-to-life sentence. Since on this record we cannot tell how the trial court would have exercised its discretion we will remand the case so that the court can exercise its discretion. Accordingly, there is no need to resolve defendant's remaining arguments.
DISPOSITION
The judgment is affirmed and the case remanded to the trial court to exercise its discretion whether to lessen defendant's sentence pursuant to Gutierrez, supra, 48 Cal.App.4th 1894.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Murray, J.