Opinion
A146434
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. DARREN CLEVELAND, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. CH56947)
A jury found defendant Darren Cleveland guilty of attempted premeditated murder, shooting from a vehicle, assault with a deadly weapon, and possession of a firearm by a felon.
Cleveland contends he was denied effective assistance of counsel when his trial counsel did not move to exclude evidence that the victim identified him as the shooter from a photographic lineup. In addition, he claims a term of his sentence should have been stayed under Penal Code section 654, he identifies errors in the abstract of judgment and sentencing minute order, and he requests remand for resentencing in light of recent changes in the law on firearm enhancements.
We order corrections to the abstract of judgment and the sentencing minute order and remand for resentencing. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Cleveland's son D. attended high school with M., the victim in this case. In May 2014, they got into an argument while playing basketball at school, and M. attacked D., sucker punching him and causing him to fall to the ground. D. suffered bruises underneath both eyes and redness and swelling on his cheek and eyebrow, and he was taken to the hospital. As a result of the assault, M. was suspended from school and then expelled.
Jordan Peterson, a school resource officer, called Cleveland to notify him of the assault and told him that his son was going to the hospital. Cleveland remarked "if he was there, he would [have gone] to prison."
L. went to high school with D. and M. He learned about their altercation when he saw video of the incident on Instagram. Soon after he learned about the fight, L. met a man at a donut shop across the street from school. The man introduced himself as "Coach Dre" and said he was concerned about his son, D., who had just gotten in a fight. L. and the man exchanged phone numbers. The man told L. that he and his son wanted to talk to M. and his parents, and he was trying to locate M. The man did not know what M. looked like, and L. sent him two photos of M. L. later told law enforcement that he communicated with the man for "like a week or two." An examination of L.'s cell phone showed Cleveland's cell phone number was saved in L.'s contacts under the name "Coach Dre." Forensic examination of Cleveland's cell phone confirmed that, starting the day after M. attacked D., Cleveland exchanged text messages with L. in which they discussed M. and his whereabouts.
Cleveland coached basketball, and his friends and family called him "Dre."
Three weeks after M. assaulted Cleveland's son at school, M. was himself assaulted. Around 2:00 p.m., M.'s parents dropped him off at a youth center at 163rd Avenue in San Leandro. M. walked from the center to his friend's house a few blocks away. M. testified that his friend was not home, and he walked back toward the youth center.
As M. walked on 163rd Avenue toward East 14th Street, a man holding a wooden baseball bat approached him. He asked M. his name, and M. said his name was James. The man responded, " 'No, your name is [M.],' " and swung his bat at M., who started to run away. The bat hit M. on his left thigh. M. turned down Blanco Street and ran toward 164th Avenue. A car pulled up next to M., and he heard someone say, " 'Hey.' " He saw the driver of the car point a gun out the window at him. M. changed directions and started running toward 163rd Avenue. He heard six shots. M. was hit once in the shoulder. He was bleeding and couldn't feel his arm. M. ran to the youth center and started to pass out.
M. testified that he knew "[a] little bit" about guns, and the gun pointed at him was black and "just looked like a regular Glock."
A witness who was working on 164th Avenue at Blanco Street heard five or six gunshots coming from Blanco Street. He looked out on the street and saw a gray or silver Acura or Honda driving "pretty fast" on Blanco Street. The car turned left eastbound onto 164th Avenue. This witness heard the screech of tires and saw the car run through a stop sign. The driver was a Black male.
A deputy responded to the youth center around 3:15 p.m. The deputy asked M. who did this, and M. said he had never seen the person before. M. said the man was "like thirty something" and Black. Peterson, the school resource officer, heard about the shooting and went to the youth center. When he realized the shooting victim was M., he told the deputy about the fight between M. and Cleveland's son. M. was taken to the hospital, where he stayed for about a week. He had surgery and had 20 stitches.
Two days after the shooting, Detective Patrick Smyth and Sergeant Ken Gemmell met with M. at the hospital. M. was in the intensive care unit and his parents were present. M. was in some pain, but "he seemed to have his wits about him" based on his appropriate responses to simple questions about his personal history. Gemmell gave M. a photographic lineup, and M. identified Cleveland. M. wrote under Cleveland's photo, "I think this person hit me with a bat and shot me."
Detective Smyth obtained surveillance video taken the afternoon of the shooting at a store on East 14th Street and 163rd Avenue. The video showed a silver car travel westbound on 163rd Avenue, pull over, and park next to the store. The car remained for approximately 18 minutes, and then at 3:10 p.m., a man apparently got out of the car, walked away, returned about a minute later, and drove away. At trial, Smyth explained, "From what we saw there, we had a vehicle that was related to our suspect." He then learned that Cleveland was the registered owner of a 2000 four-door silver Acura TL and obtained a photograph of Cleveland's actual car. Cleveland's car appeared "to be the same type of vehicle that we saw on the [surveillance] video," sharing characteristics such as a rear spoiler.
Two days after the shooting, law enforcement located Cleveland's Acura near his residence in West Oakland and had the car impounded. Gunshot residue was detected on samples collected from the driver's side window trim, interior handle and controls, and exterior and interior window ledge and from the steering wheel and gear shift of Cleveland's car.
An expert in cell phone sector analysis reviewed Cleveland's cell phone call detail records for the day of the shooting. Based on his analysis, the expert testified it was reasonable to conclude Cleveland's cell phone was in Oakland around 10:00 a.m., it made its way down to San Leandro by around 2:50, and it was back in Oakland at 3:45 p.m. At 2:56 p.m., Cleveland's phone used a cell tower that covered an area (sector) including the location of the shooting.
In a search of Cleveland's house, a gun case or box for a Glock 9 mm and an ammunition magazine were found in a kitchen cabinet. A gun cleaning kit for 9mm, .357, .38 caliber firearms was located in the garage; it had not been used. No firearm or baseball bat was found.
Seven 9 mm shell casings were recovered from Blanco Street between 163rd and 164th Avenues. An expert in firearms identification determined that the seven casings were fired from the same Glock pistol.
As we have mentioned, M. identified Cleveland from a photographic lineup two days after the shooting. A recording of M.'s hospital interview with law enforcement was played for the jury. At trial, however, M. testified he was sure that Cleveland was not the person who hit him with a bat and shot him from a car. M. further testified he did not remember talking to detectives about the case. He denied recollection of being shown a photographic lineup although he recognized his signature and handwriting on the photographic lineup presented to him at trial. M. denied that he was scared to testify, but agreed he did not want to be in court. He said testifying at trial was "[j]ust too much stress." His parents did not want him to testify because it was "too much stress" for a "kid." M. testified there were "a lot" of consequences to being labeled a "snitch."
At trial, M. testified the assailant was Black, appeared to be about 30 years old and about six feet tall, and he had stubble on his chin. He also said the shooter's car was "bluish." In his hospital interview with Smyth and Gemmell, M. said the car was silver.
L. did not identify Cleveland as the man he knew as Coach Dre. At trial, L. testified he did not remember much of his interactions with this man. He described the man as having a big beard. L. could not describe the man in much detail, saying only "he wasn't white," and "[h]e wasn't young." L. did not want to testify and said he was not feeling good, but he denied he was scared to testify. L. testified under a grant of use immunity. He had been arrested and questioned about two months after the shooting, and his recorded interview was played for the jury.
DISCUSSION
I. Photographic Lineup
Cleveland contends the photo lineup Sergeant Gemmell presented to M. violated his right to federal due process because it was unduly suggestive. Since trial counsel did not move to suppress evidence that M. identified Cleveland as the shooter, Cleveland claims he was denied effective assistance of counsel when his counsel failed to attempt to keep this evidence from the jury.
"In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).)
"The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citations.] 'The question is whether anything caused defendant to "stand out" from the others in a way that would suggest the witness should select him.' " (Cunningham, supra, 25 Cal.4th at pp. 989-990.) "A due process violation occurs only if the identification procedure is 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' " (People v. Cook (2007) 40 Cal.4th 1334, 1355.)
In this case, Detective Smyth explained that the sequential photographic lineup shown to M. was created by taking Cleveland's photograph from the DMV, searching for photos of other men based on height, weight, approximate age, and other shared characteristics, and then selecting five "filler photographs" that were similar to Cleveland's photo. The six photographs are head shots of the same size with the same blue backgrounds, and the men depicted appear to be similar in race, complexion, age, and build. Four of the men appear to be bald or have shaved heads (photos 1, 2, 3, and 5), while the other two appear to have short hair, and the men have varying facial hair—one has a mustache (photo 2), at least two others appear to have goatees (photos 1 and 4)—but these variances do not cause any particular photo to stand out. (See People v. Johnson (1992) 3 Cal.4th 1183, 1217 ["Minor differences in facial hair among the participants did not make the lineup suggestive."].)
When M. was interviewed in the hospital two days after the shooting, he described his assailant as Black, "[k]inda light skinned," 35 or 36 years old, a little shorter than himself, "regular size," and he was wearing a black and red hat, and long black shirt. M. thought he could recognize the shooter. Sergeant Gemmell asked whether anything about the shooter stood out. M. responded, "His ears, and I think he had a little beard." Gemmell asked, "maybe a little stubbl[]y down by the chin or all the way through?" M. said, "Like, all the way through kind of," and agreed with Gemmell's suggestion that the shooter's facial hair was like "a couple days without shaving." M. said the shooter's "ears was kind of wide out," meaning they stuck out a little, and then commented, "I think it's because of the hat." Gemmell and Smyth asked what the shooter was wearing and whether he had jewelry or tattoos. Then they returned to questions about the shooting—how the car approached M., how the shooter pointed the gun, what M. did, and whether anyone may have seen the crime.
Next, Gemmell presented M. the sequential photographic lineup. Smyth pointed out that a beard could be shaved, so that could easily change. He told M. he wanted him to focus on "stuff like your nose, your ears, your eyes, your . . . lips," things that would not change "unless you have plastic surgery." Gemmell explained how the photo lineup would proceed, and told M. the shooter may or may not be included among the photos and M. should not feel that he had to make an identification.
Gemmell gave M. the following admonition: "[W]e're going to show you a series of individual photos, and the person who committed the crime may or may not be included in these pictures. Even if you do identify someone during this procedure, we're going to continue to show you all the photos in the series, and the investigation will continue whether or not you do make an identification, so what that means is we've got six photos. He's making them in a random order. If we show you . . . number two and that happens to be the third photo that we show you, and you say, 'Well, I [want to] go back and see the last one,' we're [going to] go through the whole thing. We're going to show you one through six, and then we'll go back over and we'll do it again. So we [want to] remind you that things like hairstyles, beards, moustaches can easily be changed, and that complexion colors may look slightly different in photographs. You should not feel that you have to make an identification, because it's just as important to exclude innocent persons as it is to identify the perpetrator. We're going to show you the photos one at a time, and we want you to take as much time as you need to look at each one, and if wish to see a photo again, then we're going to show you all of the photos in the same sequence one more time. Do you understand?" M. indicated he understood the admonition.
M. wrote his name on each photograph as he looked at it. After he viewed all six photos, he went over them again. M. picked Cleveland's photo. Gemmell asked what about the photo made him choose it, and M. responded, "Looks like the dude." Asked to explain, he said, "He—he just looks like him." Smyth asked, "What, his eyes, nose, . . . mouth, anything? His head? Ears?" M. responded, "His ears," and then, "And his—the beard." Smyth said, "The beard. And . . . you were indicating with your hand along the whole face. The—anything else about it? Okay." Gemmell asked about M.'s level of certainty. M. said, "He just looks like the person that hit me with the bat."
Cleveland now argues the photo lineup procedure in this case was unnecessarily suggestive because his ears stuck out furthest of the six men shown, "he had a full stubbly beard," and M. expected to see the suspect in the lineup. We are not persuaded.
First, we have examined the six photographs, and we conclude that Cleveland's photo (photo 1) does not stand out. (See Cunningham, supra, 25 Cal.4th at p. 990 [reviewing court examined photographic lineup and concluded the defendant's photograph was similar to that of the others].) Cleveland's ears do not stick out in a particularly pronounced way in his photograph. While one of the other men has ears that appear to be very close to his head (photo 4), at least two of the other men (photos 2 and 6) appear to have ears that are about as prominent as Cleveland's ears. We also disagree with Cleveland's suggestion that his photo is the only one that shows a full stubbly beard or facial hair from a couple days without shaving. Instead, the man in photo 5 appears to have stubble, and Cleveland seems to have a goatee.
Further, Detective Smyth emphasized that M. should not consider facial hair or other things that could be easily changed.
Second, M. was expressly told the shooter might not be included among the photos and he should not feel that he had to make an identification. Cleveland relies on the fact that M. agreed with trial counsel's statement that "it stood to reason that the suspect would be one of these six photos that you were shown." But our high court has observed, "Of course, '[a]nyone asked to view a lineup would naturally assume the police had a suspect.' [Citation.] This circumstance does not render the lineup unduly suggestive." (People v. Avila (2009) 46 Cal.4th 680, 699.) We have reviewed the transcript of M.'s hospital interview, and we find nothing unnecessarily suggestive about the photo lineup procedure employed in this case. (Cf. People v. Nation (1980) 26 Cal.3d 169, 174, 178-181 [impermissibly suggestive identification procedure found where three witnesses discussed photographs together before agreeing upon defendant's photograph and then took his photo home and showed it to another witness who identified him as the suspect].)
Given our conclusion that the photographic lineup procedure was not impermissibly suggestive, trial counsel was not ineffective in not moving to suppress evidence of M.'s pretrial identification of Cleveland. (See People v. Ybarra (2008) 166 Cal.App.4th 1069, 1082 [defense "attorney had no duty to object to the photographic lineups or to the in-court identification, so for want of a valid premise we reject his ineffective assistance of counsel argument"], disapproved on other grounds by People v. Gutierrez (2014) 58 Cal.4th 1354, 1379, 1387; People v. Wharton (1991) 53 Cal.3d 522, 578 ["Because a suppression motion . . . would have been denied . . ., it follows counsel was not ineffective for failing to make the motion."].)
During the pendency of this appeal, Cleveland's appellate counsel filed a petition for habeas corpus relief in this court. The petition is based on trial counsel's alleged ineffectiveness in failing to object "when the prosecutor submitted an altered transcript of [M.'s] police interview to the court and the jury." (Bolding and capitalization deleted.) We have denied the habeas petition (A149358) by separate order filed this day.
II. Penal Code Section 654
Cleveland was found guilty as charged of attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a); count 1), shooting from a vehicle (§ 26100, subd. (c); count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4).
Further undesignated statutory references are to the Penal Code.
The trial court sentenced Cleveland as follows: for count 1, life in state prison with the possibility of parole, plus 25 years to life for personally and intentionally discharging a firearm and proximately causing great bodily injury (§ 12022.53, subd. (d)); for count 2, the midterm of five years, plus 25 years to life (§ 12022.53, subd. (d)) with the punishment for count 2 stayed under section 654; for count 3, the midterm of three years; and for count 4, eight months (one-third the midterm of two years) to run consecutive to the term imposed for count 3. The trial court ordered the determinate term to be served first.
Cleveland contends the trial court should have stayed the term imposed for count 4, possession of a firearm by a felon, under section 654 because the offense was part of an indivisible course of conduct with the offenses of counts 1 and 2. For his position, Cleveland relies on an old line of cases the most recent of which is People v. Kane (1985) 165 Cal.App.3d 480 (Kane). There, the People conceded the defendant could not be punished for both possession of a firearm by a convicted felon and shooting at an occupied vehicle under section 654, and the court agreed, observing the defendant "possessed the firearm, fired it at [the victim] and hit the [vehicle] in an indivisible course of conduct." (Id. at p. 488.) Cleveland also cites People v. Cruz (1978) 83 Cal.App.3d 308, 332-333 (Cruz) [defendant could not be punished for both possession of a concealable handgun and assault with a deadly weapon where the prosecution "failed to prove that defendant's possession of the handgun was 'antecedent and separate' from his use in the assaults," and the People impliedly conceded the point on appeal] and People v. Jurado (1972) 25 Cal.App.3d 1027, 1033 (Jurado) ["recent decisions establish the modern rule that a defendant may not be punished both for possession of a weapon and for another offense in which the weapon is used, where the evidence does not show possession for any other purpose"].
Section 654, subdivision (a), 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." "Over the years," our high court has "found the 'act or omission' referenced in [section 654] could be a course of conduct that includes several acts indivisible in time if pursued according to a single objective or intent. [Citations.] If those acts have separate and independent objectives or intents, however, multiple punishment is permissible, even if the acts are very close in time." (People v. Jones (2012) 54 Cal.4th 350, 362, italics omitted.)
Cleveland acknowledges, however, that more recent cases have reached the opposite result. In People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410-1413 (Ratcliff), for example, the court reviewed prior cases (including Kane and Cruz) on the question whether section 654 barred punishment for possession of a firearm by a felon in addition to punishment for an offense in which the firearm was used. The court "distill[ed] the principle that if the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense, section 654 will bar a separate punishment for the possession of the weapon by an ex-felon." (Id. at p. 1412, italics added.) But in Ratcliff, the evidence showed the defendant "already had the handgun in his possession when he arrived at the scene of the first robbery." (Id. at p. 1413, italics added.) Thus, it was reasonable to infer "possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes," and therefore section 654 did not prohibit separate punishments. (Ibid.)
In People v. Jones (2002) 103 Cal.App.4th 1139, 1145 (Jones), the court—relying on Ratcliff—concluded, "[S]ection 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm."
In reaching its conclusion, the Jones court disagreed with Jurado, supra, 25 Cal.App.3d 1027 to the extent it was inconsistent with the court's analysis. --------
We find Jones and Ratcliff persuasive. Cleveland argues these cases are wrong because they ignore "both the indivisible course of conduct, and intent and objective tests, substituting a bright line rule based on timing." We disagree. The Ratcliff court properly reasoned that the offense of possession of a firearm by a felon "is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon." (Ratcliff, supra, 223 Cal.App.3d at p. 1414.) In other words, possession of a firearm by a felon and the criminal offenses in which that firearm are used have separate objectives and intents and therefore "multiple punishment is permissible, even if the acts are very close in time." (People v. Jones, supra, 54 Cal.4th at p. 362.)
Here, Cleveland drove up to M. in his own car, shot him, and drove away. It is reasonable to infer that Cleveland possessed the firearm before and after he committed the offenses of attempted murder and shooting from a vehicle. Following Jones and Ratcliff, we conclude section 654 does not require staying the term for count 4.
III. Abstract of Judgment
The parties agree the abstract of judgment and the sentencing minute order do not accurately reflect the sentence imposed by the trial court. We will order correction of the abstract of judgment and the minutes. (People v. Medelez (2016) 2 Cal.App.5th 659, 664; People v. Zackery (2007) 147 Cal.App.4th 380, 386.)
First, the trial court stated at sentencing that Cleveland had 452 days of credits for time in custody and he would receive an additional "15 percent credits with respect to the time [he had] done." (See §§ 2933.1, subd. (a); 667.5, subd. (c)(12).) This is an additional 67 days of conduct credits. The abstract of judgment does not reflect these 67 days of credit. The minutes for August 27, 2015, also omits the award of 15 percent credits.
We order the abstract of judgment modified to reflect an additional 67 days of local conduct credit. We further order the minutes corrected to show Cleveland received 67 days of local conduct credit.
Second, the trial court found count 1 (attempted murder) and count 2 (shooting from a vehicle) "involve the same act" and "cannot form the basis for multiple punishment . . . ." Therefore, after imposing a five-year term plus an enhancement of 25 years to life (§12022.53, subd. (d)) for count 2, the court stayed the punishment under section 654. The abstract of judgment correctly reflects that the five-year term for count 2 is stayed. But for the enhancement, it lists a time imposed of "25 to Life," rather than indicating the enhancement is stayed. The minute order fails to show that count 2 is stayed and incorrectly states the enhancement for section 12022.53, subdivision (d), for count 2 is to run consecutive to count 1.
We order the abstract of judgment modified to delete "25 to Life" as time imposed for the section 12022.53, subdivision (d), enhancement to count 2 and to make clear the enhancement is stayed. We further order the minutes corrected to reflect that the five-year term and all enhancements for count 2 are stayed. IV. Change in Law Under Senate Bill No. 620
In supplemental briefing, defendant asks us to remand the matter to the trial court to decide whether to strike the firearm enhancement imposed under section 12022.53, subdivision (d), in light of newly enacted Senate Bill No. 620, effective January 1, 2018, which gives trial courts discretion whether to impose the enhancement.
The Attorney General agrees that the newly-amended section 12022.53, subdivision (h), applies retroactively to defendants whose judgments are not yet final, and agrees that the amendment applies to Cleveland retroactively. But the he contends that remand is unnecessary in this case because the record shows how the trial court would have exercised its discretion under section 1385, and that would be not to dismiss or strike the firearm enhancement. The Attorney General relies on the trial court's finding of many circumstances in aggravation and no circumstances in mitigation and its reasoning for imposing consecutive terms. We also observe that the trial court said to Cleveland after announcing the sentence, "I was going to say at the beginning, . . . [and] I don't want to be flippant about this in any respect . . . . But this is one of the most ridiculous, craziest, senseless, indefensible crimes I've seen, and I've seen my share, Mr. Cleveland. For a grown man like you to go and do what you did boggles the mind." After a "schoolyard fight" between "two kids," the court continued, "[that] you take it to the level of trying to kill him with a gun is unbelievable. [¶] . . . [¶] So now you've indicated to me and everybody here who saw this case and heard about it that you really don't belong living in a civilized community. And so the situation is what it is."
The Attorney General argues that " 'no purpose would be served in remanding for reconsideration,' " quoting People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez)). In that case, the only issue on appeal was whether the trial court had discretion to strike a prior felony conviction in the furtherance of justice under the then-existing three strikes law. While the appeal was pending, the Supreme Court determined that courts did have discretion to strike three strikes prior convictions. The Gutierrez court held that remand for reconsideration of sentencing would be required if the trial court believed it did not have discretion to strike a three strikes prior conviction, "unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." (Id. at p. 1896.) In Gutierrez, the trial court had already indicated on the record "that it would not, in any event, have exercised its discretion to lessen the sentence"; under those circumstances, the court concluded "no purpose would be served in remanding for reconsideration," and the judgment appealed from was simply affirmed. (Ibid.)
Here, the trial court imposed a lengthy sentence, but it did not clearly indicate that it would not have exercised its discretion to impose a lesser sentence if the firearm enhancement had not been mandatory. Given the trial court's observation that Cleveland's crimes were senseless and indefensible, it may seem unlikely that the court would exercise its discretion to lessen his sentence, but we are reluctant to say remand would be futile. Accordingly, we will remand to allow the trial court to consider in the first instance whether it should in the interest of justice under section 1385 strike the firearm enhancement under section 12022.53, subdivision (d).
DISPOSITION
The matter is remanded to the trial court to consider whether it should in the interests of justice under section 1385 strike the firearm enhancement under section 12022.53, subdivision (d). The trial court is ordered to correct the abstract of judgment to reflect (1) Cleveland was awarded 67 days of local conduct credit, and (2) for count 2, the enhancement under section 12022.53, subdivision (d), is stayed. The clerk's minutes are corrected to reflect (1) Cleveland was awarded 67 days of local conduct credit, and (2) the entire sentence imposed for count 2 was stayed under section 654. In all other respects, the judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.