Opinion
C083481
08-27-2018
THE PEOPLE, Plaintiff and Respondent, v. KEANDREY MARQUIS BROWN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16FE004814, 15F03520)
While on probation, defendant Keandrey Marquis Brown accosted an elderly woman as she loaded items she had just purchased from a nearby store into her car; he shot her twice in the side after she refused to relinquish her purse, severely injuring her. He later stole a bike and fled the scene with her purse. A jury found him guilty of robbery, elder abuse, and petty theft of the bicycle (Pen. Code, §§ 211, 368, subd. (b)(1), 484, subd. (a)), but acquitted him of attempted murder (§§ 664, 187, subd. (a)). The jury found true that in the commission of the robbery, defendant personally and intentionally discharged a firearm, which caused great bodily injury or death (§ 12022.53, subds. (c) & (d)), personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury also found true that in the commission of the elder abuse, defendant personally used a firearm (§ 12022.5, subds. (a) & (d)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court sentenced defendant to four years four months plus 25 years to life in state prison.
Undesignated statutory references are to the Penal Code.
Codefendant Jason Chavell Williams was also charged with attempted murder, robbery and elder abuse. The prosecutor later dismissed the attempted murder charge, and a separate jury acquitted Williams of robbery and elder abuse.
Defendant contends on appeal that (1) he received ineffective assistance of counsel because his trial counsel conceded guilt on the robbery charge during closing argument even though the prosecution presented contradictory identification evidence during trial, (2) his consecutive eight-month sentence for evading a peace officer in a separate violation of probation matter must be stayed pursuant to section 654 because it was part of a single course of conduct during which he stole the vehicle he used to flee from police, and (3) an amendment to section 12022.53, which went into effect while his case was pending on appeal, applies retroactively to him thus requiring remand for the trial court to consider exercising its newly granted discretion to strike the firearm enhancement.
The People agree remand is appropriate to allow the trial court to consider striking the firearm enhancement, but otherwise dispute defendant's appellate contentions. They also request that we correct several clerical errors in the abstracts of judgment.
We conclude defense counsel was not ineffective, but agree that defendant's consecutive eight-month sentence for recklessly evading a peace officer in the violation of probation matter should be stayed under section 654. We shall order the clerical errors in the abstracts of judgment corrected, and we shall remand the matter for the trial court to exercise its discretion as to whether to strike the firearm enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
A September 2016 amended information charged defendant with attempted murder (§§ 664, 187, subd. (a)—count one), second degree robbery (§ 211—count two), elder abuse (§ 368, subd. (b)(1)—count three), and petty theft of a bicycle (§ 484, subd. (a)—count four). The information alleged defendant personally and intentionally discharged a firearm that proximately caused great bodily injury or death (§ 12022.53, subds. (c), (d)), personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)) while committing the attempted murder and robbery offenses, and that he personally used a firearm (§ 12022.5, subds. (a), (d)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)) during the elder abuse offense.
Codefendant Jason Williams was charged jointly in counts one, two, and three. It was further alleged that, as a principal in the offenses, he was armed with a firearm. (§ 12022, subd. (a)(1).)
Defendant and Williams denied the charges and allegations, and were tried together before separate juries. The evidence at trial showed the following.
Shortly before noon on March 5, 2016, 69-year-old K.F. went to pick up a pizza at a shopping center in South Sacramento. The shopping center contained several stores, including a grocery store and a Dollar Tree store. Before picking up the pizza, K.F. went into the Dollar Tree to purchase a few items. As she entered the store, she noticed three people standing nearby; two were Black men.
After purchasing her items, she carried them out to the parking lot to put them in the back seat of her truck. She did not notice anyone follow her. As she leaned into the back seat of the truck, a young Black man wearing a zipped-up black hoodie and dark pants came up behind her. She thought she noticed red or pink underwear showing from the top of his pants. She only saw him for a second, however. She estimated that he was in his twenties, and said he was lightly built. She said he "seemed so young" to her.
The man pushed her and pulled at her purse while saying, "Give me your fucking purse." K.F. responded with something like, "Heck, no." She felt something against her stomach, and heard a pop. A few seconds later she heard another pop. Although K.F. did not realize it, she had been shot twice on her left side. The shooter then walked away with K.F.'s purse. K.F. yelled for help, saying, "Stop that man, he took my purse."
Multiple people came to K.F.'s aid. Some called police, and an ambulance also responded. As K.F. was being loaded into the ambulance, it started raining. She was transported to the hospital where she underwent emergency surgery for two gunshot wounds to her abdomen. She was hospitalized for over 20 days.
When shown a photographic lineup a few days later in the hospital, K.F. pointed out one person she thought looked like her assailant, although she admitted she was not sure; that person was not defendant. At trial, she said defendant looked familiar to her, but Williams did not. She was not positive whether defendant shot her, but she testified that he matched the overall description of the perpetrator.
Marilyn Archie called 911 to report that the shooter was a Black man, in his early twenties, approximately 5 feet 11 inches tall with a thin build. He was wearing blue jeans and white tennis shoes, and a black hoodie, which he took off after the shooting to reveal a blue T-shirt with writing on it. The shooter walked into the grocery store and then emerged a short time later. Archie called 911 a second time after police arrived to state that the officer had detained the wrong man; the shooter had left the area on a bicycle.
Although the transcript of the second 911 call indicates that the caller was Tilkia White, Archie confirmed during her trial testimony that she was in fact the caller.
Jone Fong called 911 to report that the person who snatched K.F.'s purse was a Black man in his twenties wearing a black hoodie. He entered the grocery store with a White female in her twenties. The two then emerged from the store and walked to a nearby street. At trial, Fong testified that he was coming out of the grocery store when he heard two gunshots near the Dollar Tree. He noticed a Black man carrying a purse and walking away from an elderly woman. The man dropped the purse and a White woman, who was walking across the parking lot with a different Black man, picked it up. All three were wearing hoodies. The man, with a dark hoodie, ran to catch up with the other two, but veered off and did not enter the store.
Fong's fiancée, Charlene Price, testified to hearing two gunshots as she and Fong walked out of the grocery store. She heard K.F. screaming for help, saying she had been shot and someone had stolen her purse. She saw a skinny Black man wearing a black hoodie leaving the area where the shots were fired.
Ozola Cody testified that she saw a man and a woman struggling at a car in the parking lot. It looked like he was trying to pull something from her. She heard two loud popping sounds. Cody saw a slim man run away. He was wearing blue jeans and a hooded sweatshirt pulled over his head. The man ran over to two other people dressed in similar clothing; the three appeared to run towards the grocery store.
The day of the shooting, Tilkia White saw K.F. loading her purchases into the back of her truck. White testified that a young Black man, who appeared to be in his early twenties and definitely younger than 30 years old, came up behind K.F. and pushed her in the back of her truck. White heard two gunshots, and then the man walked across the parking lot towards the grocery store. White saw the man meet up with a White woman.
After the shooting, White went to help K.F. K.F. told her the man had taken her purse. White called 911 to report the shooting. During the call, she described the shooter as a Black male, in his early twenties, approximately five feet nine inches tall wearing blue jeans and a black hoodie. Tilkia described the man at trial as "really skinny," and said he was wearing blue or black jeans and a black hoodie pulled over his head. According to White, defendant looked like the man that accosted K.F. in the parking lot.
When Timothy Hopkins arrived at the shopping center, he saw people running and heard someone say that a woman had been shot. He was told two Black guys and a White girl were involved. He drove through the parking lot to see if he could find them. Hopkins saw a Black man and a White woman walking together. The woman appeared to be trying to hide a purse in her clothing. The pair crossed the street and entered a thrift store. Hopkins flagged down a passing officer, and alerted him to their whereabouts. According to Hopkins, another man had been with the pair, but he broke off and rode away on a bicycle.
Police detained codefendant Williams outside of the thrift store, and they detained defendant's girlfriend, Brittany Wortham, coming out of the thrift store's bathroom. A search of the bathroom revealed K.F.'s purse with the strap broken in the garbage can hidden underneath toilet seat covers; a bag of ammunition was next to the purse.
After Williams and Wortham were detained, Hopkins identified them as the Black man and White woman he had observed walking towards the thrift store. Hopkins described the third individual he had seen (the man who rode away on the bicycle) as a Black adult man, about six feet tall, with a medium build, and wearing a dark hoodie with the hood up.
Defendant arrived in the area while Williams and Wortham were detained and briefly went inside the thrift store. Police detained him after he exited the store, approached a parked police car, and started talking to officers. He was wearing a jacket, sweatpants, a dark blue short-sleeved T-shirt with "Nevada Wolf Pack" on it and white tennis shoes. At the time, defendant was 19 years old, approximately five feet 11 inches tall, and weighed about 150 pounds. Williams was 37 years old.
During an in-field showup, White said she had never seen codefendant Williams before, and that defendant had the same body type as the person that attacked K.F. but that he was wearing different clothes at the time of the attack.
Defendant, who is left-handed, had a few small cuts on his left hand between his thumb and index finger when he was detained. The injury was consistent with a "slide-type injury," i.e., an injury to the hand caused by the slide of an automatic or semiautomatic handgun.
Police tested his hands, as well as the hands of Williams and Wortham, for gunshot residue. The samples taken from defendant's hands tested positive for gunshot residue; the samples for Williams and Wortham tested negative.
Police recovered a pair of defendant's jeans with an orange belt from the house where he and Wortham had stayed the night before the shooting. The jeans were wet. The home's owner, a friend of defendant's mother, testified that defendant had left her home about 10:00 or 11:00 a.m. on the morning of the shooting and that he returned to her home a little after noon to change clothes. Defendant asked for a jacket and changed out of the light-colored blue jeans he had been wearing and into sweatpants. Defendant then left the house again.
Defendant, Williams and Wortham were interviewed separately at the police station, and their recorded interviews were played for the jury. Defendant repeatedly denied shooting and robbing K.F. He claimed he happened to be walking by when he saw Wortham and Williams sitting in police cars. Williams also denied any involvement. Wortham first claimed that Williams was the shooter, but then admitted lying to officers and said defendant shot K.F.
During his interview, defendant requested to see Wortham. Police left them alone together in a holding cell. While alone, Wortham asked defendant where he had thrown the gun. Defendant said the gun was in a bush in front of "an old lady's house." Defendant told Wortham that she "need[ed] to go out there and be like it wasn't him. It wasn't him it was him." Defendant then asked Wortham: "Was there a lot of money in there though?" He instructed Wortham to "Say it was him. Say it was him," and later asserted: "They don't have the gun—they don't have the case." Worthman then exclaimed, "I better go find it, I don't give a fuck."
The next day defendant called Wortham from jail. Defendant told Wortham to do "what I told you to do when we was in the holding, when we was in the holding tank together." Defendant tried to describe the exact location on the property where she should search for his "shoes," stating that "it was the, the bush right by, right by the, uh, the driveway." Later in the conversation, defendant gave additional directions to, and a description of, the house in question and where exactly on the property to search. He said it was located in the bushes on the left side where the white car was parked in the driveway of the house.
Valerie Moss lived a short distance from the shopping center where K.F. was shot. She testified that a white vehicle was always parked outside her house in the driveway. Three days after the shooting, on March 8, Moss saw a car with two women drive up and park in front of her house. They stared at Moss's house for about five minutes before getting out and crossing the street to her driveway. They looked around and then went around the corner of the house. They returned to the driveway, and then got back in their car and drove off.
The driver of the car, whom Moss identified at trial as Brittany Wortham, returned to Moss's house later that day. This time she had a young boy with her. They stared at the house for a while and then walked up Moss's driveway. From her porch, Moss asked what they were doing. Wortham responded that they were looking for something. She claimed that kids had harassed "her boy" and thrown his shoes in the bushes of Moss's home. When asked where she thought they were, Wortham said she did not know and that she had to call her boyfriend, who said it was either her house or the brick house next door. Moss asked for her name and phone number in case she found them later. The woman identified herself as Brittany.
The next day Wortham and a man returned and parked in front of Moss's house. Wortham sat in the car looking at the house while she was on the phone. She eventually drove off. That afternoon a group of young boys passed Moss's house. Moss thought she saw one of the boys holding a gun in his hand; it appeared he put it in his waistband.
Wortham testified against defendant under a grant of immunity. At the time, she was pregnant with his child, and they planned to marry.
According to Wortham, she and defendant returned to Sacramento around March 2 or March 3 after visiting defendant's mother in Reno, Nevada. On the night of March 4, she and defendant slept at the house of a family friend of defendant's. The house was about a five- or 10-minute walk from the shopping center.
When she and defendant awoke on March 5, codefendant Williams was at the house. Defendant introduced Williams as either his cousin or his uncle—she could not recall.
The three walked to the shopping center. Wortham saw defendant put a gun in his pocket before they left. They walked by the Dollar Tree store, and she said Williams essentially dared defendant to "jack" the old lady (meaning K.F.), who had just come out of the store. On cross-examination, however, Wortham said she did not hear what Williams said to defendant.
As Wortham and Williams continued to walk towards the grocery store, defendant headed towards the parking lot. Video surveillance footage from the Dollar Tree store shows defendant, Williams, and Wortham walk past the entrance to the store shortly after K.F. exits and walks into the parking lot. Wortham confirmed that defendant walked towards K.F. in the parking lot while she and Williams continued walking towards the grocery store.
Shortly after defendant followed K.F., Wortham heard two gunshots. She testified Williams did not shoot K.F., but that she could not see defendant when she heard the shots. When she saw defendant again, he threw a purse at her feet. She hid the purse under her jacket. She and Williams then walked towards the grocery store. They went inside for a few minutes, and left without buying anything. Wortham and Williams walked from the grocery store across the street to a thrift store. About a minute later, defendant exited the grocery store and headed in the same direction. She saw defendant get on a bicycle at an ice cream store next to the thrift store and ride off.
Coincidentally, the bike defendant stole belonged to K.F.'s brother, who happened to be getting ice cream at the time.
Video surveillance from the grocery store shows Wortham and Williams exiting the grocery store together, and defendant exiting the store in a dark T-shirt, jeans, and white tennis shoes approximately a minute later. He leaves in the same direction as Wortham and Williams. Video surveillance from the ice cream store where the bike was stolen shows a tall, slender Black man wearing a T-shirt, jeans, and white tennis shoes pass the ice cream store window, while two other individuals dressed similarly to Wortham and Williams walk together along the sidewalk farther in the distance.
According to Wortham, she went inside the thrift store alone. She put the purse in the trash can in the women's bathroom. She also hid a bag of bullets she had been carrying. She was detained as soon as she left the bathroom.
Although she admitted initially telling police that Williams shot K.F., she later admitted that defendant shot her. At trial, she said she lied to police because she loved defendant and was having his baby.
Neither defendant nor Williams testified. At the close of evidence, the prosecutor moved to dismiss the attempted murder charge against Williams. The court granted the motion.
During closing argument, defendant's counsel "conced[ed] that the evidence is overwhelming that [defendant] committed this robbery, that [defendant] did so with a gun, and that he inflicted great bodily injury. I concede those charges because the evidence of those charges has been proven beyond a reasonable doubt." Counsel argued instead that defendant accidentally discharged the firearm during the robbery and that he did not intend to kill K.F.
Defendant's jury found him not guilty of attempted murder, but guilty of robbery, elder abuse, and petty theft. The jury found the attached firearm and great bodily injury enhancements true. Based on the convictions, the court found that defendant violated his probation in case No. 15F03520. Williams's jury acquitted him of robbery and elder abuse.
The court sentenced defendant to the middle term of three years for the robbery offense, plus 25 years to life for the associated firearm enhancement (§ 12022.53, subd. (d)). The court imposed and stayed the mid-term of three years for the elder abuse offense and three years for the great bodily injury enhancement (§ 12022.7, subd. (a)). The court sentenced defendant to a concurrent 180 days for the petty theft offense with credit for time served. In case No. 15F03520, the violation of probation matter, the court sentenced defendant to consecutive terms of eight months each (one-third the midterm) for the underlying offenses of evading a peace officer (Veh. Code, § 2800.2) and vehicle theft (Veh. Code, § 10851). Defendant timely appealed.
DISCUSSION
1.0 Ineffective Assistance of Counsel
Defendant contends his trial counsel was constitutionally ineffective because he conceded guilt on the robbery charge during closing argument even though contradictory identification evidence had been presented during trial. He argues the purportedly improper concession violated his federal Sixth Amendment right to effective assistance of counsel. Counsel's tactical decision to concede the robbery offense was not ineffective.
To establish ineffective assistance of counsel, defendant must show, by a preponderance of the evidence, that his counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) In determining whether counsel's performance was deficient, we exercise deferential scrutiny and "assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act." (Ledesma, supra, at p. 216.) "Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
We presume counsel's conduct fell within the "wide range of reasonable professional assistance." (People v. Maury (2003) 30 Cal.4th 342, 389.) Our review is limited to the record on appeal and we must reject a claim of ineffective assistance "if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation." (People v. Burgener (2003) 29 Cal.4th 833, 880.) If "it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice . . . that course should be followed. (Strickland v. Washington (1984) 466 U.S. 668, 697 .)
While defense counsel must not argue against a client, "it is settled that it is not necessarily incompetent for an attorney to concede his or her client's guilt of a particular offense." (People v. Lucas (1995) 12 Cal.4th 415, 446.) "Recognizing the importance of maintaining credibility before the jury," courts have repeatedly rejected claims that counsel was ineffective in conceding various crimes or degrees of guilt. (People v. Freeman (1994) 8 Cal.4th 450, 498.) " '[G]ood trial tactics often demand complete candor with the jury, and . . . in light of the weight of the evidence incriminating a defendant, an attorney may be more realistic and effective by avoiding sweeping declarations of his or her client's innocence.' " (Ibid.) That principle applies here.
We cannot say on this record counsel made an incompetent tactical choice to admit that defendant robbed K.F., but that he discharged the gun accidentally rather than intentionally. After all, the evidence that defendant robbed K.F. was overwhelming.
Video surveillance captured defendant following in K.F.'s direction in the parking lot moments before she was shot. Several witnesses identified a tall, slender, young, Black man in jeans and a black hoodie as the robber, which matched defendant's age, race, and build as well as the clothing he was seen wearing in the video surveillance.
Wortham, who was with defendant and Williams at the shopping center, testified that Williams did not shoot K.F. and that she could not see defendant when she heard the shots. When she saw defendant again, he threw K.F.'s purse at her.
Compelling gunshot residue evidence corroborated Wortham's testimony. While defendant tested positive for gunshot residue, both Williams and Wortham tested negative. Defendant, who was left-handed, also had a slide injury on his left hand consistent with firing a semiautomatic or automatic gun. The evidence from the holding cell where defendant told Wortham where he had hidden the gun and his subsequent jail phone call to Wortham further describing the house where he hid the gun also corroborated Wortham's testimony.
Several witnesses also saw defendant fleeing the scene on a bicycle, and defendant was captured on the ice cream store video surveillance where the bike was stolen. Defendant changed his jeans and black hoodie for a jacket and sweats, but returned to the scene wearing the same distinctive white tennis shoes shown on the video surveillance and referenced by a witness who called 911 to report the robbery and shooting. It was raining the day of the shooting, and police recovered defendant's wet jeans from the house where he and Wortham stayed the night before, which was only about five minutes from the shopping center. The home's owner testified that defendant returned home to change his clothes the day K.F. was shot. The jury reasonably could have inferred a consciousness of guilt from defendant's flight from the scene and his attempts to conceal incriminating evidence. (People v. Bonilla (2007) 41 Cal.4th 313, 328 [flight as consciousness of guilt]; People v. Jackson (1996) 13 Cal.4th 1164, 1225 [concealing evidence as consciousness of guilt].)
Choosing to forgo an implausible argument that someone else robbed K.F. was a reasonable tactical choice, even if K.F. was unsure of the suspect's identity when she reviewed the photographic lineup while recovering in the hospital. K.F. testified that she only saw the robber for a brief moment, but she noticed how young he appeared. Defendant was 19 at the time, while codefendant Williams was 37. At trial, K.F. said defendant looked familiar but that she had never seen Williams before.
Given the overwhelming evidence that defendant robbed K.F., trial counsel cannot be faulted for exercising candor with the jury. Counsel's strategic decision was not constitutionally ineffective, but rather a sound tactical choice that succeeded in getting defendant acquitted of the more serious attempted murder charge. (People v. Ochoa (1998) 19 Cal.4th 353, 435 ["Defendant's confession and the physical evidence strongly suggested that the allegations were true, and counsel might reasonably have viewed contrary arguments as a distraction with potential to weaken more meritorious points."].) As the prosecutor aptly noted in closing, "I don't think [defendant's counsel is] going to stand up and tell you that he didn't commit a robbery. I don't think that she's going to stand up and tell you he didn't commit elder abuse. I know that she's a smart attorney and she sees the writing on the wall. She's left with what the facts are as they've been presented." Counsel made the best of a bad situation. We see neither incompetence nor any prejudice from that decision.
2.0 Section 654
Defendant contends that his consecutive eight-month sentence for recklessly evading a peace officer in case No. 15F03520, the probation violation matter, should have been stayed pursuant to section 654 because it was part of a single course of conduct in which he stole the vehicle he used to flee from police. According to him, his act was a continuous course of conduct with a single objective and intent—to drive and retain possession of the vehicle, which can be punished only once under section 654.
The People argue that the probation report for the current case, which referenced defendant's evading police and vehicle theft convictions, does not show that the act of evading police occurred immediately after the vehicle theft or that the two crimes were committed on the same date. The People therefore contend that defendant has failed to carry his burden to show error on appeal.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ." "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331.)
People v. Correa, supra, 54 Cal.4th 331 disapproved of applying section 654 to multiple punishment for multiple violations of the same provision of law, concluding Neal's footnote to the contrary (Neal, supra, 55 Cal.2d at p. 18, fn. 1) was dictum (Correa, supra, at p. 344), but that this "new rule" applied prospectively only (id. at pp. 344-345).
"However, if the defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) A defendant may also be punished for violations stemming from an indivisible course of conduct if the defendant's violent actions injure more than one victim. (People v. Deloza (1998) 18 Cal.4th 585, 592.)
Defendant's intent and objective are factual questions for the trial court. (People v. Coleman (1998) 48 Cal.3d 112, 162.) The court's finding, whether express or implied, will be upheld on appeal if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) We review the trial court's determination in the light most favorable to defendant, and we presume the existence of every fact the trial court could have reasonably deduced from the evidence. (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)
In imposing the consecutive eight-month sentences in case No. 15F03520 for recklessly evading a peace officer and vehicle theft, the trial court considered the probation report prepared for defendant's current offenses. That report states in relevant part: "According to [Sacramento Police Department] Report #15-0140828, on 6/6/15, officers responded to a vehicle pursuit involving a possible carjacking suspect and vehicle theft ([Sacramento Police Department] Report #15-0140628). [(Italics added.)] Officers arrived on scene to find the suspect vehicle had collided with the side wall of the freeway after evading police. The driver of the vehicle (later identified as the defendant) fled the scene. The passenger of the suspect vehicle identified the defendant as the driver."
It is unclear from the record if there are in fact two reports or if there is a typographical error in listing the two very similar report numbers. --------
We believe the above description shows that officers pursued a carjacking and vehicle theft suspect (defendant) who evaded police and ultimately crashed the car on the same day, June 6, 2015. The two events were part of a single course of conduct that began with the vehicle theft and ended with the crash. There is no evidence in the record showing that the vehicle theft and the reckless evasion of the police occurred on two separate occasions.
It would be difficult to conclude that defendant's actions in evading the officers were not reasonably necessary to accomplish the original offense of vehicle theft. Section 654 therefore prohibits punishment for both the vehicle theft and the reckless evasion offense. Defendant's punishment for evading should be stayed pursuant to section 654.
3.0 Firearm Enhancement
Defendant contends that recent legislative amendments to the firearm enhancement statutes require remand so that the trial court may consider whether to exercise newly granted discretion to strike the section 12022.53, subdivision (d) firearm enhancement. The People concede the legislation applies retroactively to defendant, and that remand is necessary to allow the court to consider exercising its discretion to strike the firearm enhancement. We agree the amendment applies retroactively and shall remand the matter for the trial court to consider whether to strike the section 12022.53 enhancement.
As we have noted, defendant's sentence in this case includes a consecutive 25 year-to-life sentence for the section 12022.53, subdivision (d) enhancement for personally and intentionally discharging a firearm and proximately causing great bodily injury during the robbery. At the time of his sentencing, the trial court had no power to strike the firearm enhancement or impose a sentence other than 25 years to life. Under recent amendments to section 12022.53, which became effective January 1, 2018, trial courts will have the power "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] 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).)
For the reasons stated by this court in People v. Woods (2018) 19 Cal.App.5th 1080, we conclude that the recent amendment to section 12022.53 is retroactive and applies to this case. (See Woods, at pp. 1090-1091.) The People do not argue that remand in this instance would be futile (see People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896), but instead agree that here the case must be remanded to allow the trial court to exercise its newly granted discretion to decide whether to strike or dismiss the firearm enhancement.
4.0 Correction of Abstract of Judgment
The People request that the indeterminate and determinate abstracts of judgment, which contain several clerical errors, be corrected. We may correct clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185 ["appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts"].)
Here, the indeterminate abstract of judgment erroneously indicates, by a checked box, that defendant was sentenced pursuant to "PC 667.61" rather than "PC 667(b)-(i) or PC 1170.12." The indeterminate abstract of judgment also mistakenly lists the great bodily injury enhancement attached to count three (elder abuse), but that enhancement, which the court stayed, should be listed only on the determinate abstract of judgment. The determinate abstract of judgment, in turn, misidentifies defendant's conviction for violating Vehicle Code section 2800.2, subdivision (a) in case No. 15F03520 as Penal Code section 2800.2. Reference to the correct code is required. We shall order the clerk to correct the abstracts of judgment accordingly.
DISPOSITION
Defendant's convictions are affirmed. The consecutive eight-month sentence on defendant's conviction for recklessly evading a peace officer in case No. 15F03520 is stayed pursuant to section 654. As so modified, the judgment in case No. 15F03520 is affirmed. In case No. 16FE004814, the matter is remanded to the trial court so it may exercise its discretion as to whether to strike or dismiss the firearm enhancement. Upon its resolution of the matter, the trial court shall amend and correct the abstracts of judgment consistent with this opinion, and is directed to forward certified copies of the corrected abstracts to the Department of Corrections and Rehabilitations.
BUTZ, Acting P. J. We concur: MAURO, J. RENNER, J.