Opinion
B323859
08-29-2024
THE PEOPLE, Plaintiff and Respondent, v. DESHON ATKINS, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. YA093316 Hector M. Guzman, Judge. Affirmed in part, reversed in part, and remanded.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.
BAKER, ACTING P. J.
A jury convicted defendant Deshon Atkins (defendant) of two counts of attempted murder and found gang and firearm sentencing allegations true. The trial court sentenced defendant to life in prison, plus a 45-year determinate term. On appeal, a prior panel of this court remanded the matter to allow the trial court to consider exercising then-newly conferred discretion to strike firearm enhancements, which the court declined to do. The cause is now before this court on appeal from that remand, and we consider whether the trial court erred in declining to strike the firearm enhancements and reconsider other aspects of defendant's sentence. We also decide whether another remand is required in light of two more recently enacted statutes: Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333), which makes changes to law related to gang-related enhancements, and Senate Bill No. 81 (2021-2022 Reg. Sess.) (SB 81), which altered the law on when a trial court should strike sentencing enhancements in furtherance of justice.
I. BACKGROUND
A. The Offense Conduct, Investigation, and Charges
Craig Brown (Brown) was murdered in April 2012 near the intersection of 109th Street and Budlong Avenue in Los Angeles. Brown was a member of the 107 Hoover Criminals (Hoover Criminals), a criminal street gang.
Later on the day of Brown's murder, Mark Beasley (Beasley) and Dashon Wright (Wright), members of another criminal street gang, the Ten-Deuce Budlong Gangster Crips (Budlong Crips), were standing on 102nd Street near Normandie Avenue. The Budlong Crips were rivals of the Hoover Criminals and claimed that particular stretch of 102nd Street as part of their territory.
A light-colored Acura sedan pulled to a stop near Beasley and Wright. Two men armed with guns exited the Acura. Immediately before the two men opened fire, a witness heard someone shout, "Hoover." As a result of the shooting, Beasley sustained a gunshot wound to his right middle finger and Wright was shot in his left ankle, right thigh, left wrist, and lower back. The first Los Angeles County Sheriff's Department (LASD) deputy to respond to the scene of the shooting recovered 19 spent nine-millimeter cartridges from the sidewalk and street.
Less than three hours after the shooting, a LASD detective observed an Acura consistent with the description of the car given by witnesses to the shooting of Beasley and Wright. The detective attempted to pull the vehicle over, but it did not stop. During the ensuing pursuit, the detective saw two firearms thrown from the passenger side of the vehicle. Eventually, the Acura crashed into a pole.
Defendant got out of the Acura (from the passenger side) and attempted to flee. He was apprehended, however, and a gunshot residue test of his person was positive. At the time of defendant's arrest, he was 18 years old.
After defendant's apprehension, the LASD detective returned to the area where he saw firearms being thrown from the Acura and located two nine-millimeter, semi-automatic pistols, one manufactured by Ruger, the other by Taurus. A LASD firearms examiner inspected the spent cartridges recovered from the scene of the shooting and determined nine were fired from the Taurus and 10 from the Ruger.
The following day, Wright was interviewed by the lead investigating detective while in the hospital awaiting surgery. Wright believed the Hoover Criminals suspected the Budlong Crips were responsible for the murder of Brown and shot him and Beasley in retaliation.
The Los Angeles County District Attorney charged defendant with the attempted murders of Beasley and Wright (Pen. Code, §§ 187, subd. (a) &664). In addition, the District Attorney alleged the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), defendant personally and intentionally discharged a handgun that caused great bodily injury (§ 12022.53, subds. (c) &(d)), and a principal in the crime used a firearm to promote a criminal street gang (§ 12022.53, subds. (b), (c) &(e)(1)).
Undesignated statutory references that follow are to the Penal Code.
B. Gang Evidence at Defendant's Trial, and Conviction and Sentencing
Over defendant's objection, the prosecution's first witness at trial was a gang expert, Ernesto Castaneda, a LASD deputy who at the time was serving as a gang investigator. After relating his gang-related training and patrol experience, as well as his experience testifying as a gang expert, Deputy Castaneda testified about the importance of defending a gang's territory, of not cooperating with law enforcement, and of "putting in work," i.e., committing crimes for the gang. He explained criminal activity by gang members served two important reputational purposes: enhancing a member's individual standing within the gang and increasing the community's fear of the gang.
After discussing gang culture generally, Deputy Castaneda testified about the Hoover Criminals specifically: he described the gang's territory, history, size, allied cliques, main rivals, signs, symbols, preferred attire and tattoos, and primary criminal activities, which included attempted murders. Through his personal contacts with defendant and through defendant's tattoos, Deputy Castaneda identified him as a member of the Hoover Criminals. Deputy Castaneda also discussed the Budlong Crips' territory, size, identifying attire and tattoos, as well as his patrol contacts with members of the gang. He testified that through his personal interactions with Beasley and Wright he knew them to be members of the Budlong Crips.
To establish the predicate pattern of gang crimes that must be proven for the criminal street gang enhancement, Deputy Castaneda testified briefly about two sets of crimes- a murder and an attempted murder, and two attempted murders- committed by two members of the Hoover Criminals on two separate occasions. For each set of crimes, when presented with a certified record of the convictions, Deputy Castaneda identified the offender, whom he knew through personal patrol contacts, as a member of the Hoover Criminals.
After calling other witnesses to testify about the shooting of Beasley and Wright, the prosecution recalled Deputy Castaneda and asked him to offer an opinion on a hypothetical scenario designed to track the facts of the charged offenses. He opined that the shooting was "in association with and for the benefit of a gang." According to Deputy Castaneda, the hypothetical crime would enhance a gang's reputation for violence because it was committed in a rival's territory and directed against rival gang members.
After the presentation of evidence and argument, the jury found defendant guilty of the willful, deliberate, and premeditated attempted murders of Beasley and Wright. The jury found true allegations that both attempted murders were gang-related within the meaning of section 186.22, subdivision (b)(1)(C). In connection with the attempted murder of Beasley, the jury found true the allegation that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c) and the allegation that a principal personally and intentionally discharged a firearm within the meaning of that statute and section 12022.53, subdivision (e).Similarly, in connection with the attempted murder of Wright, the jury found true the allegation that defendant personally and intentionally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivision (d) and the allegation that a principal personally and intentionally discharged a firearm within the meaning of that statute and section 12022.53, subdivision (e).
Penal Code section 12022.53, subdivision (e) provides that the firearm enhancements in section 12022.53 apply to a person who is "a principal in the commission of an offense" (not just the actual firearm user or shooter) if the person is also found to have violated the gang enhancement statute, section 186.22, and an accomplice was the actual firearm user or shooter. (§ 12022.53, subd. (e)(1).)
The trial court sentenced defendant to life in prison for attempting to murder Beasley and added a 20-year determinate term for the section 12022.53, subdivision (c) firearm enhancement. For the attempted murder of Wright, the court sentenced defendant to life in prison plus 25 years for the section 12022.53, subdivision (d) firearm enhancement. The court ordered these two sentences to run consecutively because it found the attempted murders evidenced a "high degree of cruelty, viciousness, and callousness." The court stayed punishment on the gang enhancements the jury found true.
C. Defendant's First Appeal and the Proceedings on Remand That Are at Issue in This Appeal
Defendant appealed his convictions and argued, among other things, that insufficient evidence supported his conviction for attempting to murder Beasley and the jury's true findings on the gang enhancements. This court rejected these arguments but modified the abstract of judgment to reflect the proper amount of presentence credits. (People v. Atkins (Aug. 21, 2017, B278735) [nonpub. opn.] (Atkins I).)
Defendant then petitioned for review and our Supreme Court granted the petition and transferred the case back to this court with directions to reconsider the cause in light of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620), which gave trial courts discretion to strike firearm enhancements under section 12022.53. Complying with the Supreme Court's directions, this court remanded the matter to the trial court to "consider whether to strike defendant's section 12022.53 enhancements." (People v. Atkins (Aug. 21, 2017, B278735) [nonpub. opn.] (Atkins II).) Beyond modifying defendant's presentence credits, Atkins II "otherwise affirmed" the judgment of conviction.
At a trial court hearing to consider defendant's request to strike the section 12022.53 enhancements, the court articulated its understanding that the matter was not remanded for a full resentencing. Rather, the court explained, the case "was simply returned here for the court to consider possibly modifying sentence based on [SB 620's] change in the law ...."
The same judge who presided over defendant's trial heard defendant's request on remand to strike the firearm enhancements.
The prosecution argued for keeping the sentencing "as is." Defense counsel urged the court to strike the firearm enhancements attached to each murder conviction, but the defense also argued there was greater justification for striking the Beasley-connected enhancement because the facts suggested Beasley was wounded in the finger as the result of a ricochet from a bullet aimed at Wright.
Considering the "facts of the case," "the gang nature of the offenses," and the "substantial" injuries suffered by Wright, the trial court determined that "striking or dismissing the [firearm] enhancements would not be in the furtherance of justice." Defendant noticed an appeal from this ruling.
The notice of appeal was filed in 2022 as authorized by this court's order granting defendant's application to file a belated notice of appeal.
II. DISCUSSION
Defendant contends the trial court erred when it declined to strike the firearm enhancements and refused to reconsider any other aspects of his sentence. Neither contention has merit. The record reveals the trial court did not abuse its discretion in declining to strike the enhancements and, having decided not to alter defendant's sentence on the sole ground on which the case was remanded, there was no justification for reconsidering any other aspect of defendant's sentence.
Our disposition of defendant's remaining arguments that invoke recently enacted penal legislation is mixed. We reject defendant's SB 81 argument because that statute does not apply to defendant; by its own terms, the statute applies only to sentencings occurring after January 1, 2022, and defendant was sentenced in 2016. We accept defendant's AB 333 argument, however. Amendments that legislation made to section 186.22 retroactively apply to defendant and, so applied, there is insufficient proof of the requisite organizational nexus between the gang and the predicate crimes committed by its members.This conclusion compels reversal of the true findings on the gang enhancements and, as a consequence, the "principal armed" firearm enhancements that depend on the validity of the gang enhancement findings.
Defendant also contends AB 333's enactment of section 1109 applies retroactively and warrants reversal. That argument fails under a recent decision of our Supreme Court and we need say no more about it. (People v. Burgos (2024) 16 Cal.5th 1, 8.)
A. The Trial Court Did Not Err on Remand
1. Declining to strike the firearm enhancements was not an abuse of discretion
Section 12022.53 provides for sentencing enhancements of varying lengths for specified crimes involving a firearm- including attempted murder-depending on how the firearm is used and the harm that results from its use. (§ 12022.53, subd. (a)(1).) Subdivision (b) provides for a 10-year enhancement for one who "personally uses a firearm" in commission of the offense; subdivision (c) provides for a 20-year enhancement for one who "personally and intentionally discharges a firearm"; and subdivision (d) provides for an enhancement of 25 years to life for one who "personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death ...." (§ 12022.53, subds. (b)-(d).) SB 620 amended section 12022.53 to permit trial courts to dismiss these enhancements in furtherance of justice pursuant to section 1385. (§ 12022.53, subd. (h).) As we held in Atkins II, SB 620 applies retroactively to defendant.
We review the trial court's decision not to dismiss a section 12022.53 firearm enhancement for abuse of discretion. (People v. Pearson (2019) 38 Cal.App.5th 112, 116.) In assessing whether defendant has met his burden to demonstrate an abuse of discretion (ibid.), we consider the legal principles and policies behind the laws at issue (People v. Carmony (2004) 33 Cal.4th 367, 377; People v. Williams (1998) 17 Cal.4th 148, 161). Here, that includes both the law that added section 12022.53 to the Penal Code and SB 620's purpose of mitigating the overly harsh results that might otherwise obtain from mandatory, inflexible imposition of section 12022.53 enhancements. It also includes the general objectives in sentencing, factors affecting imposition of enhancements, and circumstances in aggravation and mitigation set forth in California Rules of Court, rules 4.410, 4.428, 4.421, and 4.423. (Pearson, supra, 38 Cal.App.5th at 117.)
The trial court found that defendant's "crime[s] involved great violence[,] . . . threat[s] of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness"; that "defendant was armed with or used a weapon at the time of the commission of the crime"; and that the victims were "particularly vulnerable." (Cal. Rules of Court, rule 4.421(a)(1)-(3).) The court emphasized, among other things, the manner of the shooting in which the victims were effectively ambushed, the gang motivation for the shooting, and the many and substantial injuries suffered by Wright.
Defendant argues certain factors in mitigation-namely, his age at the time of the shooting and his efforts at rehabilitation while imprisoned-were "not properly considered." He does not appear to fault the trial court for this; instead, he suggests his trial counsel, whose oral argument was "brief[ ]" and focused on issues other than mitigating circumstances, should have done more. We hold there was no abuse of discretion. We presume the trial court considered all relevant factors (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390), and there is nothing in the record that would disturb that presumption. Even accounting for defendant's age and post-hoc efforts at rehabilitation, the trial court's ruling was within its discretion considering the facts of the shooting, the victims' injuries, and the motivation for the attempted murders. Insofar as defendant claims his attorney's performance was deficient on remand after Atkins II, the claim fails on the record in this appeal. (People v. Carter (2005) 36 Cal.4th 1114, 1189.)
2. The trial court did not err by not holding a full resentencing
Our Supreme Court has held "that when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citations.]" (People v. Buycks (2018) 5 Cal.5th 857, 893.) Importantly, however, the Supreme Court has also long "rejected the notion that an appellate remand that requires the exercise or reexercise of sentencing discretion necessarily results in a full resentencing." (People v. Buckhalter (2001) 26 Cal.4th 20, 34-35; accord, People v. Rodriguez (1998) 17 Cal.4th 253, 258 [a reviewing court "may properly remand [a matter] to permit the trial court to make the threshold determination of whether to exercise its discretion in defendant's favor without necessarily requiring resentencing unless the court does act favorably"].) As our high court explained in Buckhalter, "Rodriguez . . . negated the theory that a limited appellate sentence remand . . . vacates the original sentence." (Buckhalter, supra, 26 Cal.4th at 35.) On remand, if "the trial court decided not to exercise its discretion to modify the original sentence, . . . the defendant need not be resentenced" because "the original sentence . . . continued to govern the defendant's custody, unless and until it was disturbed as a result of the remand proceedings." (Id. at 35-36.)
Defendant's claim that he was entitled to a full resentencing after our remand in Atkins II fails under this settled law. We remanded solely for the purpose of giving the trial court the opportunity to consider striking defendant's firearm enhancements. It did so and declined. As Buckhalter and Rodriguez explain, that was the end of the matter.
B. SB 81 Does Not Apply Retroactively
Prior to enactment of SB 81, section 1385 provided that a trial court could dismiss sentencing enhancements in furtherance of justice. (Former § 1385, subd. (a).) SB 81 amended section 1385 by revising subdivision (c) to provide in relevant part as follows: "(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so ....[¶] (2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(1)-(2).) Among the mitigating circumstances added to section 1385 are the following: "(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed. [¶] (C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed." (§ 1385, subd. (c)(2).) SB 81 also added language to section 1385 (sometimes rather confusingly referred to as a "savings clause") that expressly limits application of the amendments made by the legislation to only those sentencings occurring after January 1, 2022. (§ 1385, subd. (c)(7).)
Because SB 81's amendments to section 1385 are expressly limited to sentencings occurring after January 1, 2022, and because defendant was sentenced in 2016 and the trial court did not modify defendant's sentence on remand, SB 81's ameliorative benefits do not apply to him. (People v. Flowers (2022) 81 Cal.App.5th 680, 686 [SB 81 inapplicable because Flowers was sentenced before January 1, 2022], review granted October 12, 2022, S276237.)
Despite the terms of section 1385, subdivision (c)(7), defendant argues he is entitled to the ameliorative benefit of SB 81 under the logic of In re Estrada (1965) 63 Cal.2d 740. The argument, however, rests on a misreading of Estrada and subsequent opinions by our Supreme Court. Estrada principles do not apply when legislation by its own terms establishes whether it is to operate retroactively or prospectively only-as SB 81 does. (Estrada, supra, at 744; see also People v. Conley (2016) 63 Cal.4th 646, 656 ["as we explained in Estrada, the presumption does not govern when the statute at issue includes a 'saving[s] clause' providing that the amendment should be applied only prospectively"]; Buycks, supra, 5 Cal.5th at 881-882 ["The Estrada rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, 'a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not'"].)
C. AB 333's Amendments to Section 186.22 Apply Retroactively and, So Applied, Compel Reversal of the Gang Enhancements and Related Firearm Allegations
1. Section 186.22 and AB 333
"'In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (STEP Act; § 186.20 et seq.) to eradicate "criminal activity by street gangs." [Citation.] Among other things, the STEP Act created 'a sentencing enhancement for a felony committed "for the benefit of, at the direction of, or in association with any criminal street gang" [citation].' [Citation.]" (People v. Tran (2022) 13 Cal.5th 1169, 1205-1206.)
In 2016, at the time of defendant's trial, section 186.22 defined "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (Former § 186.22, subd. (f).) With regard to a "pattern of criminal gang activity," the prosecution at defendant's trial had to prove only that those associated with the Hoover Criminals had committed at least two offenses from a list of predicate crimes on separate occasions within three years of one another. (Former § 186.22, subd. (e) [defining "pattern of criminal activity" as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons"].)
As our Supreme Court has recently observed, the Legislature "substantially amended the STEP Act in [AB 333]." (People v. Clark (2024) 15 Cal.5th 743, 752.) "'First, it narrowed the definition of a "criminal street gang" to require that any gang be an "ongoing, organized association or group of three or more persons." (§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former subdivision (f) required only that a gang's members "individually or collectively engage in" a pattern of criminal activity in order to constitute a "criminal street gang," [AB 333] requires that any such pattern have been "collectively engage[d] in" by members of the gang. (§ 186.22, subd. (f), italics added.) Third, [AB 333] also narrowed the definition of a "pattern of criminal activity" by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang "members," as opposed to just "persons"; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, [AB 333] narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any "common benefit" be "more than reputational." (§ 186.22, subd. (g).)' [Citation.]" (Id. at 752-753.) "Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (§ 186.22, subd. (g).)
Our Supreme Court held in Clark that the Legislature's reference to collective engagement in a pattern of criminal activity "calls for an inquiry not just into how the predicate offenses benefited the gang, but also how the gang works together as a gang. It calls for a showing of a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole." (Clark, supra, 15 Cal.5th at 762.) The Clark court went on to explain that this organizational nexus "may be shown by evidence linking the predicate offenses to the gang's organizational structure, meaning its manner of governance; its primary activities; or its common goals and principles." (Ibid.)
Clark offered a number of examples of how collective engagement might be established: "[T]here might be evidence of a direct order from the gang to commit specific crimes. [Citations.] Alternatively, evidence might show a more general, well-understood expectation that members must engage in certain types of offenses. [Citation.] In other cases, collective engagement might be shown by demonstrating that the offenses are reflective of the primary activities of the gang, or else adhere to a common goal or plan characteristic of the gang in question. [Citations.]" (Clark, supra, 15 Cal.5th at 762.)
2. The jury's gang enhancement finding is unsupported by sufficient evidence of collective engagement and the associated firearm enhancements must fall too
Defendant argues and the Attorney General concedes that AB 333's amendments to section 186.22, subdivision (b)(1) apply retroactively because defendant's conviction is not yet final. The parties' shared position on retroactivity is consistent with recent, controlling precedent. (See, e.g., Tran, supra, 13 Cal.5th at 12061207 ["the Attorney General concedes that the rule of In re Estrada . . . applies [to AB 333], and we agree....[AB 333's] changes have the effect of 'increas[ing] the threshold for conviction of the section 186.22 offense and the imposition of the enhancement,' with obvious benefit to defendants like Tran"].)
Under the retroactively applied section 186.22 in its current form, there was insufficient proof at defendant's trial to satisfy the statute's collective action requirement. Deputy Castaneda, the prosecution's gang expert, testified about the Hoover Criminals' history, territory, size, allies, rivals, signs, symbols, and primary criminal activities. He did not-albeit understandably, given the intervening change in the law-offer any testimony about the gang's organizational structure or how the gang's members collectively engaged in criminal activity generally or in specific connection with the two sets of predicate crimes. In view of the absence of any substantial evidence about the Hoover Criminals' organization and the organizational nexus between the gang and the predicate crimes committed by its members, vacatur of the true finding on the section 186.22 gang allegation is required.
Because we have held the evidence is insufficient to support the gang enhancement, we must also vacate the "principal armed" gang-related firearm enhancements (though they are superfluous given the jury's true findings on the personal discharge enhancements alleged against defendant that we do not disturb). (See, e.g., People v. Cooper (2023) 14 Cal.5th 735, 745-747 [reversing section 12022.53, subdivision (e)(1) firearm enhancement that was contingent on a true finding on the gang enhancement under section 186.22].)
DISPOSITION
The true findings on the section 186.22, subdivision (b)(1) gang enhancement allegations, and the related true findings on the section 12022.53, subdivision (e) "principal armed" firearm enhancement allegations, are vacated and may be retried if the People so elect. In all other respects, the judgment is affirmed.
We concur: KIM, J., LEE, J. [*]
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.