Opinion
H045371
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. PHYLIBER CLARKSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1632270)
Defendant Phyliber Clarkson was convicted by jury trial of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and felony false imprisonment (§§ 236, 237). The trial court found that defendant had suffered a prior conviction that qualified as a strike and a prior serious felony (§§ 667, subds. (a), (b)-(i), 1170.12), and that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The court sentenced defendant to 15 years in state prison on the corporal injury count, which included a five-year term for the prior serious felony enhancement. The court imposed a concurrent four-year term for the false imprisonment count.
Subsequent statutory references are to the Penal Code.
On appeal, defendant argues that (1) there was insufficient evidence of false imprisonment; (2) his sentence for false imprisonment should be stayed under section 654; (3) the trial court erroneously denied his motion to strike the strike finding; and (4) the trial court violated defendant's right to allocution at sentencing. We reject these contentions. Defendant also argues that (5) his case should be remanded to allow the trial court to exercise its discretion to strike the prior serious felony enhancement. We agree and reverse the judgment.
I. Background
A. Prosecution Case
In October 2015, defendant met D.T. and they started dating. He proposed marriage a month later and D.T. accepted. D.T. lived in an apartment with her mother, her sister, and her sister's two children. Defendant occasionally spent the night at the apartment. Sometime in either December 2015 or January 2016, defendant lost his job, and his attitude toward D.T. changed. Defendant began to ask about her phone conversations. He told her to "be careful" to whom she talked, or he would "mess up" her face and do "bad" things to her. He also sent her a text message warning her that he would "destroy [her] face."
On March 2, 2016, at around 9:00 p.m., D.T. went to sleep alone in her bedroom. Her sister and her sister's children were asleep in their bedrooms, and her mother was asleep in the living room. At around 1:00 a.m. or 2:00 a.m. the next morning, D.T. woke up to find defendant standing next to her bed, holding her cell phone, and demanding that she tell him whom she had been texting. Defendant "grab[bed her] neck" and "start[ed] strangling" her. D.T. "couldn't breathe." Defendant then used his hands to push on D.T.'s face. She felt his hands on her eye and in her mouth. Defendant pulled on D.T.'s mouth "along her mouth line toward her right cheek." D.T. "felt him scratching [her] jaw area." At some point, defendant moved on top of D.T., with "[h]is weight . . . on [her] hips." D.T. tried to move but "couldn't because of his weight." She screamed, and her mother came into the room.
When D.T.'s mother came in, she saw defendant "in the bed over D.T.," with his body "leaning onto her." She said, " 'Oh, what happened?' " Defendant responded, "[D.T.] cheated on me." Defendant "got off of [D.T.]," and she was able to get off the bed and run out of the room. As D.T. ran from the room, D.T.'s mother saw that her face was bleeding. There was "a lot of blood."
D.T. ran to her sister's room and said, " '[Defendant] hurt me. [Defendant] hurt me.' " D.T.'s sister "couldn't even recognize her face. All over her body, everything was -- the clothes that were on, it was soaking wet with blood." The two hugged and sat on the floor. D.T. was in "a lot of pain," especially her "body" and "face." She "couldn't talk." D.T.'s sister called 911.
Officer Terry Gallagher responded and found a "chaotic scene." D.T. and her sister were both "crying hysterically" at the top of the landing outside an apartment. D.T. had blood on her face.
Officer William Nunn, Jr., arrived and saw another officer treating D.T. with a first aid kit. That officer tried to apply gauze to D.T.'s face. Nunn "saw blood and skin hanging from her face and jaw area." Paramedics came and transported D.T. to the hospital. At the hospital, Nunn noted that D.T.'s "shirt was covered in blood and . . . she had distinct lacerations on both the left and right side of her neck or near her jaw area," and that she had a "small laceration . . . or small cut" on one of her eyelids. Her eyes also appeared irritated.
Medical records reflected that D.T. had multiple lacerations to her face. Dr. Philip Kenneth Hurst, her attending physician, described her state as "miserable" because there were "many different lacerations over a good portion of her face and, specifically, lacerations that we were not able to take care of while she was in the emergency department." There was an area "on her face where there actually was no skin," which required a specialist "to decide how best to go about . . . a repair of that injury that would lead to the best cosmetic result." One wound alone required 22 stiches.
At trial, Hurst opined that D.T.'s eye injury appeared to have been caused by some "sort of a blunt injury," meaning something "hard" was pressed against her eye socket. Regarding D.T.'s injury where the skin was pulled from her face, Hurst said it could have been caused by hands or fingernails. He clarified on cross examination that the tearing injury was not likely caused by a fingernail, but could have been caused by a finger pressing with "enough force" against the skin to cause it to tear. He also testified that although facial lacerations "bleed right away," they typically do not "spurt" blood, and that D.T.'s facial lacerations were not close to any arteries that would cause blood to spray.
B. Defense Case
Defendant did not testify during the jury trial on the substantive offenses. The jury deadlocked on the great bodily injury enhancement, and the prosecution retried the enhancement to the court. At the court trial, defendant testified in his defense. Because this appeal does not concern the court trial, we confine our review of the record to the evidence presented at the jury trial.
Officer Nickolas Skaggs arrived at the scene and encountered defendant. Defendant was calm and cooperative, and consented to a pat search. Defendant also allowed Skaggs to examine his hands. Skaggs saw what appeared to be blood on defendant's hands, but found no "blood or flesh or anything suspicious" under his fingernails. Skaggs also did not find any blood in D.T.'s bedroom, the hallway, or on any of the doors.
Dr. Elaine Chiu testified for the defense as an expert in emergency medicine, biomechanics, and human injury analysis. Viewing a photograph of one of D.T.'s lacerations near the eye, Chiu opined that the injury looked to be caused by "something sharp -- a sharp edge or a surface hit" that "caused the skin to split." It looked "nothing like a hand" had caused the injury. Looking at another picture, she noted that there was an area where "the skin's just been ripped -- torn away. It's -- there's a whole layer of skin. You're almost seeing fat here in that area." Chiu stated that she did not "see any way" someone "could have inflicted this particular wound with a bare hand or even with fingernails." Next, looking at another picture of an injury near D.T.'s left eye, Chiu testified that it "does not look like a hand wound."
Chiu testified that facial injuries tend to "bleed[] tremendously." Blood also tends to "bleed [in the] direction of gravity, whichever way that is." If someone with facial lacerations like D.T.'s were laying on his or her back, Chiu stated that she would "certainly . . . expect it to go and pool around their neck." Chiu also explained that she would expect blood to be "dripping on the floor" as a person with such injuries moved. When asked whether she would expect blood under the fingernails in such an attack, Chiu allowed that "if there was one hit with nails, perhaps there wasn't enough bleeding yet to be dribbling all over the suspect's hands." Chiu concluded by stating: "I know for sure that the wounds that [were] discussed today were not due to bare fingers or nails causing them."
II. Discussion
A. Insufficient Evidence: False Imprisonment
Defendant contends that his conviction for false imprisonment must be reversed because there was insufficient evidence. He asserts that D.T.'s testimony was that she was attacked while on the bed, and that "[s]he said she tried to get away from him and successfully pushed him back, got off the bed and ran to her sister's room." In one short paragraph of argument, he contends that while this was enough to support the inflicting corporal injury count, it was not sufficient to support false imprisonment.
Although defendant sets forth the standard of review to be applied in a sufficiency of the evidence challenge, he cites no other law in support of his argument. He fails to "specify how the evidence fails to support the verdict." (People v. Stanley (1995) 10 Cal.4th 764, 793.) Instead, he merely provides a brief summary of D.T.'s testimony, "apparently assuming this court will construct a theory supportive of his innocence and inconsistent with the prosecution's version of the evidence. That is not our role." (Ibid.)
Even more problematic, defendant's brief recitation of D.T.'s testimony is inaccurate. His summary suggests that D.T. was never held against her will, and that when she "tried to get away from him" she was successful. Worse still, in his reply brief, defendant claims D.T. never "attempted to move before or during appellant's attacks on her face." Not so. D.T. very clearly testified that at some point during the attack, she tried to move but could not because defendant's weight was on her hips. The prosecutor specifically asked D.T., "Were you at all -- you were trying to get up and out; correct?" D.T. replied, "Yes. But I couldn't because of his weight."
This testimony was plainly sufficient to support the verdict. "When reviewing a challenge to the sufficiency of the evidence, we ask ' "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." ' " (People v. Banks (2015) 61 Cal.4th 788, 804.) "Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for ' "substantial evidence—that is, evidence which is reasonable, credible, and of solid value" ' that would support a finding beyond a reasonable doubt." (Ibid.)
Felony false imprisonment is the unlawful violation of the personal liberty of another effected by violence, menace, fraud, or deceit. (§§ 236, 237.) While "[f]orce is an element of both felony and misdemeanor false imprisonment[,] [m]isdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to effect the restraint. In such circumstances the force is defined as 'violence' with the false imprisonment affected by such violence a felony." (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462.)
Considering the record in the light most favorable to the verdict, there was substantial evidence to show that defendant violated D.T.'s personal liberty by means of violence. She testified that shortly after defendant woke her up, he was on top of her, pulling at her face and strangling her. She tried to escape defendant's brutal attack but was unable to do so because he was holding her down. Defendant's use of force was greater than that reasonably necessary to effect the restraint, as defendant not only used his weight to hold D.T. but also choked her, causing her to have trouble breathing. Finally, D.T.'s testimony established that there was a deprivation of her personal liberty. In sum, substantial evidence supports the jury's verdict.
B. Section 654
Defendant argues that his sentence for false imprisonment should have been stayed pursuant to section 654 because the evidence at trial established that the imprisonment was part of an indivisible course of conduct "for the exclusive intent and purpose of choking [D.T.] and squeezing her face and eyes."
Section 654 provides in relevant part: "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." (§ 654, subd. (a).) Thus, "[s]ection 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267.) "Whether a course of conduct is divisible and therefore gives rise to more than one act . . . depends on the 'intent and objective' of the actor." (Ibid.) "If . . . the defendant had multiple or simultaneous objectives, independent of . . . 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." (Id. at pp. 267-268.)
"A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.) "We review the trial court's findings 'in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citation.]" (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
In sentencing defendant for both the corporal injury count and the false imprisonment count, the trial court impliedly found that defendant harbored a separate objective for each offense. Substantial evidence supports this finding. Defendant woke D.T. in her bedroom, holding her cell phone and asking whom she had been texting. Defendant then falsely imprisoned D.T. by pushing her onto the bed, climbing on top of her and impeding her breathing. While he falsely imprisoned her, he committed corporal injury by pulling on her face and pushing on her eyes. From this evidence, the court could reasonably find that defendant falsely imprisoned D.T. with the intent and objective of preventing her from leaving until he determined whom she had been texting, and that he willfully inflicted injury upon her with the separate intent and objective of physically harming her.
The trial court could have also reasonably concluded that the injuries defendant inflicted upon D.T.'s face were gratuitous acts of violence separate from the restraint necessary to accomplish the purpose of his false imprisonment. Section 654 "cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.) Imposing separate punishment for the false imprisonment and corporal injury is thus consistent with the purpose of section 654, which "is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.)
C. Prior Strike
Defendant contends that the trial court violated his due process rights by declining to exercise its discretion to strike the strike. Defendant asserts that the court failed to "give meaningful consideration" to his background, his military service, and the circumstances of his case.
1. Background
Defendant asked the trial court to strike the strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He noted that he was 37 years old and "facing his first prison sentence." He acknowledged that he had a prior felony conviction and had been on probation when he committed the current offenses. He also noted that he was "gainfully employed," that he had served in the military, that his mother and father were absent from his life at a young age, and that he had a young son.
The prosecutor opposed the request, noting that defendant's prior serious felony related to making criminal threats (§ 422) against the mother of his son. The prosecutor argued that defendant's conduct in the present case represented an "escalating pattern of conduct related to the women that he's involved in romantic relationships with in his life."
A statement prepared by D.T. was read in court. She related that she now goes "to bed in fear and wake[s] up in the morning with pain and frustration." She noted that the "scar on [her] face makes [her] ashamed," that she is "afraid of people, especially men," that she no longer wants to interact with people or "make . . . friend[s]," and that she cries "every single day." She asked the court to "please keep [defendant] far away from me."
The trial court declined to strike the strike. The court noted that "the injuries to the victim are significant and has [sic] had a profound impact on her psychologically and physically," that "defendant was on probation for a serious felony when the incident occurred, and that the prior incident also involved domestic violence." The court concluded: "[I]t's clear . . . that the defendant has not fully addressed or accepted responsibility for his actions in the past, and until this occurs the Court finds that the prospects for rehabilitation are limited."
2. Analysis
Section 1385 permits a trial court to "strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, 'in furtherance of justice' . . . ." (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams); People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).) "[T]he court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, at p. 161.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 375.) The party attacking the sentence bears the burden " ' "to clearly show that the sentencing decision was irrational or arbitrary." ' " (Id. at p. 376.) Reversal is not required " ' "merely because reasonable people might disagree." ' " (Id. at p. 377.) "Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)
Here, defendant fails to demonstrate that the trial court's sentencing decision was irrational or arbitrary. To the contrary, the record shows that the trial court listened to defendant's arguments in mitigation, as well as the prosecutor's arguments and the victim's statement, before determining that it would not be appropriate to strike the prior strike. The court explained that the circumstances of the present offense, the impact to the victim, and escalating nature of defendant's conduct militated against granting defendant's request. The trial court was not required to place greater weight on the factors identified by defendant than on other relevant factors, and the record reflects that the court gave due consideration to defendant's arguments. We cannot substitute our judgment for that of the trial court. Because the trial court's determination was not "so irrational or arbitrary that no reasonable person could agree with it" (Carmony, supra, 33 Cal.4th at p. 377), we find no abuse of discretion.
D. Right to Allocution
Defendant argues that the trial court denied him his right to speak at his sentencing hearing.
1. Background
At the beginning of sentencing, the trial court asked defense counsel if defendant waived formal arraignment for judgment and sentence. Defense counsel said, "So waived, Your Honor." The court stated it wanted to "give everyone an opportunity to be further heard," and asked whether there were any "legal reasons at this time why we can't proceed." Defense counsel said he was ready to proceed. As described elsewhere, the court then allowed the parties to present arguments on defendant's request that the court dismiss the strike pursuant to Romero. The victim's statement was then read into the record.
Following the reading, the trial court asked defense counsel if he wanted to respond to the victim's statement. Defense counsel declined. After discussing custody credits, the court asked: "All right. Anything else by the People?" The prosecutor responded, "No, Your Honor. Thank you." The court then asked defense counsel if there was "[a]nything else, [counsel]?" Defense counsel replied, "No, Your Honor." As described elsewhere, the court then denied defendant's request to strike the strike, and sentenced him. The court concluded its sentencing by telling defendant: "I'm hoping that when you get released you'll be in a better place so you can be the proper parent and person in the community that we would want. [¶] Good luck to you, sir." The prosecutor then asked the court to advise defendant of his appellate rights, which the court did. The court asked the prosecutor if there was "[a]nything else, Counsel?" The prosecutor said, "No." The court said, "All right." Defense counsel then said, "Your honor, I don't know if it's appropriate, but [defendant] is asking to address the Court." The court declined the request: "At this time the hearing -- we've completed the hearing, and so we're going to proceed to our next matter. Thank you."
2. Analysis
In People v. Evans (2008) 44 Cal.4th 590 (Evans), the California Supreme Court addressed the scope of a defendant's right to address the court at sentencing. The court held that, under sections 1200 and 1201, a defendant has a statutory right to state reasons " 'why judgment should not be pronounced,' " but not the absolute right to state reasons for a more lenient sentence. (Evans, at p. 597.) The right to make statements in mitigation at sentencing is more limited. Under section 1204, a defendant does have a statutory right to state why a more lenient sentence should be pronounced, but only under oath and subject to cross-examination. (Evans, at p. 598.) A trial court may, with the parties' consent, choose to "proceed more informally" and "instead allow the defendant to make a brief unsworn statement urging lesser punishment." (Id. at p. 599.)
The facts in Evans are instructive. In Evans, at sentencing the trial court asked whether there was " 'any legal cause why sentence cannot now be pronounced.' " (Evans, supra, 44 Cal.4th at p. 593.) Defense counsel replied, " 'No legal cause.' " (Ibid.) "The court then asked defense counsel if he would like 'to make any comments.' " (Ibid.) Defense counsel responded by offering arguments in mitigation. The prosecutor followed with arguments in response. "After a brief discussion of whether the court should order restitution to the victim, the trial court asked, 'With that, the matter's submitted, correct?' Defense counsel replied, 'Submitted.' " (Ibid.) After stating that it largely agreed with the prosecutor's arguments, "[t]he court formally denied defendant's request for probation, found no good cause to dismiss defendant's prior 'strike,' and ordered defendant 'committed to the Department of Corrections.' At this point, [the] defendant interjected: 'Can I speak, your honor?' The trial court replied, 'No.' It then imposed a five-year prison sentence." (Ibid.)
Addressing the question of whether "the trial court erred in not allowing defendant to testify in mitigation of punishment," the Evans court concluded that there was no error. (Evans, supra, 44 Cal.4th at p. 600.) The court noted that prior to pronouncing the sentence, the trial court asked defense counsel, " '[T]he matter's submitted, correct?' " Defense counsel replied, " 'Submitted.' " (Ibid.) Thus, "[d]efense counsel made no attempt to call defendant to testify, and defendant himself did not ask to do so. Under these circumstances, there was a forfeiture of defendant's right to testify in mitigation of punishment." (Ibid.) The court added: "It was only after the trial court had denied probation and was in the process of sentencing defendant to prison that defendant asked, 'Can I speak, your honor?' Assuming for the sake of argument that this may be construed as a request to testify in mitigation of punishment, it came too late; it should have been made before the court started to pronounce defendant's sentence. [Citations.]" (Ibid.)
As in Evans, in this case, defendant's request to address the trial court came too late. Prior to pronouncing the sentence, the court provided defense counsel an opportunity to present arguments in mitigation. After discussing sentencing matters, the court asked the prosecutor whether there was "[a]nything else" from the prosecution. The prosecutor said no. The court then asked defense counsel if there was "anything else" from his side. Defense counsel said no. Only after sentencing had concluded and defendant had been advised of his right to appeal did defendant indicate he wished to say something. Construing this as a request to testify in mitigation of punishment, it should have been made before the court pronounced defendant's sentence. There is no meaningful distinction between this case and Evans, and we are bound by Evans. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Indeed, this case represents an even stronger case for finding no error. In Evans the request to speak came during the pronouncement of sentence. Here, the request came after sentencing had concluded. Accordingly, the trial court did not err in refusing to allow defendant to speak after sentencing concluded.
Defendant attempts to distinguish Evans by emphasizing that his claim involves his "federal and state constitutional due process right to have a meaningful opportunity to be heard at his sentencing." The Evans court rejected the argument that there was "a right under the federal Constitution to make an unsworn personal statement without being subject to cross-examination." (Evans, supra, 44 Cal.4th at pp. 599-600.) Instead, the court concluded that the statutory right "to make a sworn personal statement in mitigation that is subject to cross-examination" under section 1204 "affords the defendant a meaningful opportunity to be heard and thus does not violate any of defendant's rights under the federal Constitution." (Evans, at p. 600.)
In this case, there is no indication that defendant was denied his right to make such a personal statement prior to the imposition of sentence. Rather, the record shows that defense counsel ably presented a number of arguments in mitigation and that when asked if there was "anything else," defense counsel said "No." Neither defendant nor defense counsel indicated that there was anything else to say. Defendant cites no persuasive authority that due process required more than the court did here and we have found none. We reject defendant's claim that he had no meaningful opportunity to be heard during sentencing.
Defendant's reliance on Boardman v. Estelle (9th Cir. 1992) 957 F.2d 1523 (Boardman), is misplaced. There, the court held that "allocution is a right guaranteed by the due process clause of the Constitution." (Id. at p. 1530.) The court's holding was "limited to circumstances in which a defendant, either unrepresented or represented by counsel, makes a request that he be permitted to speak to the trial court before sentencing. If the trial court denies that request, the defendant has not received due process" (Ibid., italics added.) Defendant made no such request in this case, and Boardman's holding is therefore inapplicable.
E. Serious Felony Enhancement
Defendant contends that his case should be remanded to allow the trial court to exercise its sentencing discretion to strike the section 667, subdivision (a) enhancement in light of recently enacted Senate Bill No. 1393.
1. Background
In sentencing defendant, the court stated: "The Court reaches the 15 years through the following: Count 1, midterm of 6 years state prison. That's the doubling of the midterm that would lead to 6 years state prison. Penal Code section 12022.7(e), midterm of 4 years. That is for a total of 10 years. There's also a requirement of a 5-year enhancement pursuant to Penal Code Section 667(a) for having suffered a prior serious felony. All 6 years, 4 years, and 5 years will run consecutive for a total of 15 years. Count 2, the court will sentence the defendant to the midterm of 4 years, and that will run concurrent to the terms and sentence in Count 1 with the enhancement."
2. Analysis
Defendant was sentenced in November 2017. At that time, the trial court was required to impose a five-year consecutive term under section 667, subdivision (a). (Former § 667, subd. (a).) "On September 30, 2018, the Governor signed Senate Bill [No.] 1393 which, effective January 1, 2019, amend[ed] sections 667(a) and 1385(b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)" (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)
Under In re Estrada (1965) 63 Cal.2d 740, "[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date. [Citation.]" (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) "The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses. [Citations.]" (People v. Nasalga (1996) 12 Cal.4th 784, 792.) Since nothing in Senate Bill No. 1393 suggests a legislative intent that the amendments to sections 667, subdivision (a), and 1385, subdivision (b), apply only prospectively, "it is appropriate to infer, as a matter of statutory construction, that the Legislature intended Senate Bill [No.] 1393 to apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final when Senate Bill [No.] 1393 becomes effective on January 1, 2019. [Citations.]" (Garcia, supra, 28 Cal.App.5th at p. 973.) Here, defendant's case was not final on January 1, 2019. (People v. Vieira (2005) 35 Cal.4th 264, 306 [" '[A] judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]' "].)
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.]' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) When the record shows that the trial court proceeded with sentencing on the assumption that it lacked discretion, remand for resentencing is necessary "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (Ibid.)
Here, the trial court proceeded with sentencing under the assumption that it lacked discretion. In addition, the record does not " 'clearly indicate[]' " whether the trial court would have decided to strike the prior serious felony enhancement had it been aware it had such discretion. (Gutierrez, supra, 58 Cal.4th at p. 1391.) The Attorney General concedes that defendant's case should be remanded. We agree that a remand is required.
III. Disposition
The judgment is reversed, and the matter is remanded to permit the trial court to exercise its discretion pursuant to section 1385 to strike the serious felony enhancement. If the trial court declines to strike the enhancement, it shall reinstate the judgment. If it strikes the enhancement, it shall resentence defendant.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Grover, J.