Opinion
G055286
02-04-2020
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LEE DUVALL, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF0501) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed and remanded for resentencing. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Daniel Lee Duvall was convicted of first degree murder with a firearm enhancement in the shooting death of his uncle, Frank Duvall. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) Defendant challenges his conviction on due process grounds, arguing reversal is compelled for prosecutorial and instructional errors. He argues the prosecutor "conflated the mental states of intent to kill with deliberation and premeditation and . . . trivialized the law on premeditation and deliberation." Defendant, who testified at trial, faults the trial court for giving CALCRIM No. 361, which told the jurors that his failure to explain or deny prosecution evidence could be considered in evaluating his testimony. We find no prosecutorial error and conclude the instructional error was harmless beyond a reasonable doubt. Accordingly, we affirm the judgment.
All undesignated statutory references are to the Penal Code.
Defendant also asks this court to remand the matter to the trial court for resentencing on three different issues. A recent legislative change has given trial courts increased discretion to strike firearm enhancements under section 12022.53. In this case, we cannot say with certainty the trial court clearly indicated at the time of the original sentencing it would not have stricken the enhancement even if it had the discretion to do so. Therefore, we must remand the matter for resentencing only. We do not address the merit of defendant's two other sentencing issues (whether the trial court should exercise its discretion to dismiss a sentencing enhancement under section 667, subdivision (a)(1), and whether the court should have made a finding regarding defendant's ability to pay fees and fines); the trial court should address those in the first instance on remand.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Defendant, the victim (known as Dino), and a variety of other family members and friends, including the victim's adult daughter, periodically lived in a house owned by Doris Duvall, the victim's mother and defendant's grandmother. According to several witnesses, defendant and the victim had a longstanding, contentious relationship, fueled in part over uncertainty as to who would eventually inherit Doris Duvall's substantial assets and disagreements concerning the victim's adult daughter. In the past, defendant, who owned guns and ammunition, had threatened to shoot and kill the victim.
On March 8, 2015, a large group was at the Duvall home to celebrate the birthday of defendant's girlfriend, Tina Arbogast. Late in the evening, a verbal argument erupted between defendant and the victim, followed by a fistfight. Defendant told the victim, "I'm going to [expletive] you up," "Don't make me put a bullet in you," and "I'm going [to] put a bullet in you." Two other men grabbed defendant in a bear hug to restrain him. Defendant broke free, pulled out a gun, pointed it at the victim and pulled the trigger. The gun jammed and did not fire.
The victim quickly left the house, got into his van parked on the street in front of a neighbor's house, and started the engine. The victim's girlfriend was in the front passenger seat; a friend was in the back of the van.
Defendant came running out of the house, still carrying the gun. He yelled to the victim to "get the [expletive] back here I'm not [expletive] done with you yet" and "[Expletive] Dino. I'm going to kill you." Defendant fired the gun. The van moved down the street and then stopped. The victim, struck by a single bullet that perforated his heart and lungs, died in the van.
Immediately after the shooting, defendant handed his gun to Arbogast, who concealed it under her clothes. Defendant left on his motorcycle. After defendant left, someone in the house told the witnesses to the shooting: "Nobody saw anything. Nobody has heard anything. You better keep your [expletive] mouth shut or else." Ten or 15 minutes after the shooting, Arbogast drove off in defendant's truck.
Later that evening, defendant arrived at the Riverside County residence of his friend, Drew Casanova. Casanova testified at trial for the prosecution under a grant of use immunity. Defendant gave Casanova two Glock nine-millimeter magazines and a plastic baggie with eight nine-millimeter bullets. Casanova emptied the bullets from the Glock magazines, and placed all the ammunition in a drawer in his roommate's bedroom.
The police found a nine-millimeter bullet in the pocket of the front driver's side door of the victim's van. A nine-millimeter shell casing was also found in front of the house where the van had been parked at the time of the shooting. A crime lab technician concluded the bullet found in the van and the shell casing found in front of the neighbor's house were fired from the same weapon.
Defendant testified. He admitted threatening "to kick [the victim's] ass all the time," but denied ever threatening to shoot him. On the night of his girlfriend's party, defendant arrived at his grandmother's house with a backpack containing a pound of methamphetamine and a Colt .380 pistol. At some point, defendant disparaged the victim's girlfriend and accused the victim of neglecting his adult daughter. In response, the victim "sucker punched [defendant] in the face." Defendant and the victim brawled until two other guests restrained defendant in a bear hug. When the victim stopped hitting him, defendant pulled a gun out of his pocket, and the guests let him go. Defendant's grandmother ordered everyone out of her house, and the birthday crowd congregated in the front yard.
Defendant testified he did not see the victim leave the house and did not shoot him. As defendant was outside, preparing to leave on his motorcycle, he heard what sounded like a gunshot. Defendant did not see a flash and did not see anyone with a gun. People immediately scattered. Defendant told Arbogast to get his helmet and "move the dope" he left inside the house. Arbogast brought defendant his motorcycle helmet and his backpack. The only item defendant gave to Arbogast was a glass methamphetamine pipe from his back pocket because he was concerned it would break as he rode the motorcycle.
While at Casanova's house, defendant learned from Arbogast that he was a suspect in the victim's murder. Defendant removed the battery from his cell phone so the police could not track him.
Defendant denied giving Casanova any ammunition. He denied shooting the victim or being near the victim's van when the shot was fired. Defendant admitted four prior felony convictions. He admitted owning two pistols, a Colt .380 and a .22 Ruger. Defendant denied owning a nine-millimeter pistol or any nine-millimeter ammunition.
The jury convicted defendant as charged of one count of first degree murder (§ 187, subd. (a)) and found he personally discharged a firearm in the commission of the crime (§ 12022.53, subd. (d)). The trial court granted the prosecution's motion to dismiss the section 12022.1, subdivision (b) enhancement (crime-bail-crime), but found the prior conviction allegations—a strike prior, a serious felony prior, and three prison priors—to be true. The trial court sentenced defendant to a total term of 80 years to life in prison, consisting of 25 years to life for murder, doubled to 50 years to life pursuant to the strike prior, a consecutive term of 25 years to life for the firearm enhancement, and a consecutive term of five years for the serious felony prior. Defendant filed a timely notice of appeal.
DISCUSSION
I.
ALLEGED PROSECUTORIAL ERROR
A.
Factual Background
In his closing argument, the prosecutor maintained defendant shot the victim with malice and intent. Referencing CALCRIM No. 520, with which the trial court instructed the jury, the prosecutor explained malice could be express or implied. The prosecutor's example of implied malice was a person who intentionally shoots at birds, but kills a bystander. Returning to the language of CALCRIM No. 520, the prosecutor also stated implied malice "doesn't require hatred, ill-will. It's a mental state. It doesn't require deliberation or passage of any period of time." He added that a killing committed with implied malice is second degree murder.
But the prosecutor urged the jurors to find express malice: "Express malice, which you have in this case, [is] defendant . . . walking up there going '[Expletive], Dino. I'm going to kill your ass.' That shows evidence [of] intent to kill." The prosecutor advised that a killing with express malice requires proof "the murder is willful, deliberate and premeditated as defined in CALCRIM No. 521. [¶] So willfully, deliberately and premeditated. Willfully, if you inten[d] to kill. And, first degree murder, you have to have that intent to kill. [¶] . . . But with the intent to kill, you have to be deliberate. You carefully weigh the consequences for or against it . . . . Knowing the consequences, you decide to kill. And premeditation, you decide to kill before completing the acts that caused the death. [¶] Length of time doesn't alone determine. It goes on, and the judge read it to you, 'a cold calculated decision to kill can be reached quickly.' It's the extent [of] reflection, not length of time."
The prosecutor then gave the example of a person approaching an intersection with a red light camera: "[T]he light is yellow, you're pulling up to that intersection, inside of your mind you're thinking 'yellow light,' camera out there. I can beat it." Defense counsel objected, claiming the prosecutor was "denigrating the standard for premeditation, deliberation." The trial court overruled the objection.
The prosecutor continued: "You can think 'I see a yellow light. And I'm going to push on the gas, and I'm going to beat the light turning red.' That's an example of a very short period of time when you are sitting there, and you're thinking of the consequences. A person could be aware of the consequence. That's 'Hey, if I don't make it, it turns red. I'll see the flash, my picture, and I'm going to get a ticket in the mail.'"
In his closing argument, defense counsel dismissed the prosecutor's example: "First of all, that yellow light, that's absurd." In doing so, he questioned whether drivers faced with a yellow light really engage in a deliberative exercise: "When is the last time you went through a yellow light and went 'I'm going to carefully weigh the considerations for and against this, and knowing those I'm going to run the yellow'?"
The prosecutor returned to this theme during his rebuttal argument: "The yellow light example is not absurd. You all, matter of fact, on voir dire everybody said they're a licensed driver, so everybody has had the experience of approaching an intersection. [¶] Everybody recognizes the extreme danger of being in an intersection when the light turns red and having another car collide into you and possibly injure you and kill you, as opposed to the frustration factor of if you prematurely start slowing down for a yellow light when there's a lot of traffic, and you may be late where you're going. So [I] submit to you, you can conduct willful deliberate premeditation with a yellow light."
Defense counsel again objected on grounds that the prosecutor was "denigrating the standard." The trial court again overruled the objection.
B.
Analysis
Defendant claims the prosecutor erred in two respects. For the reasons that follow, we find no prosecutorial error.
First, defendant asserts the prosecutor, "by contrasting implied malice with intent to kill . . . equated premeditation and deliberation with express malice. . . . The deliberation and premeditation required for first degree murder is in addition to intent to kill. . . . The prosecutor's argument told the jury that to find [defendant] guilty of first degree murder they need find no more than an intent to kill." Defendant's contention on this point is belied by a plain reading of this portion of the prosecutor's closing argument, which fairly tracked CALCRIM Nos. 520 and 521.
CALCRIM No. 520 states in relevant part that a defendant acted with "express malice if he unlawfully intended to kill." CALCRIM No. 521 classifies an unlawful killing as first degree murder if the prosecution proves the defendant "acted willfully, deliberately, and with premeditation." The prosecutor's argument equated the willful requirement with an intent to kill and then told the jurors they also must find the intent to kill was the result of deliberation and premeditation. The argument was consistent with California law. (People v. Koontz (2002) 27 Cal.4th 1041, 1080 ["verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance"].) The prosecutor did not err on this score.
Second, defendant complains the prosecutor's yellow light camera example "trivialized the burden of proof necessary to prove premeditation and deliberation" by suggesting "the premeditation and deliberation necessary to commit murder is no more serious than deciding whether or not to drive through a yellow light." Again, we disagree.
Defendant cites no apt authority to support this contention. He relies on People v. Nguyen (1995) 40 Cal.App.4th 28 (Nguyen) to assert the prosecutor's closing argument "misstated the law on premeditation and deliberation and diminished the constitutional requirement of proving [the deliberation and premeditation] elements beyond a reasonable doubt." But the challenged argument in Nguyen concerned only the prosecution's burden of proof, not the definitions of premeditation or deliberation; moreover, the error in Nguyen was harmless, not prejudicial.
The Nguyen prosecutor argued the reasonable doubt standard "'is the standard in every single criminal case. . . . [¶] It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes.'" (Nguyen, supra, 40 Cal.App.4th at p. 35.)
The Court of Appeal agreed the prosecutor's argument "trivialize[d] the reasonable doubt standard. It is clear the almost reflexive action to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in [divorce] statistics." (Nguyen, supra, 40 Cal.App.4th at p. 36.) The appellate panel "strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry." (Ibid.) Nonetheless, and although the defendant forfeited the issue by failing to object at trial, the Court of Appeal held the prosecutor's error was not prejudicial because the jury was properly instructed on the reasonable doubt standard and appellate courts presume jurors follow the trial court's instruction. (Id. at pp. 36-37.)
People v. Avila (2009) 46 Cal.4th 680 (Avila), where the Supreme Court found no prosecutorial error and affirmed the defendant's first degree murder convictions and death sentence, is more on point. There, "the prosecutor used the example of assessing one's distance from a traffic light, and the location of surrounding vehicles, when it appears the light will soon turn yellow and then red, and then determining based on this information whether to proceed through the intersection when the light does turn yellow, as an example of a 'quick judgment' that is nonetheless 'cold' and 'calculated.' He then immediately said, 'Deciding to and moving forward with the decision to kill is similar, but I'm not going to say in any way it's the same. There's great dire consequences that have a difference here.'" (Id. at p. 715.) The Supreme Court rejected the defendant's claim that the prosecutor's argument erroneously and unfairly equated the premeditation and deliberation necessary to convict a defendant of murder with the everyday decision of "'whether to stop at a yellow light or proceed through the intersection.'" (Ibid.)
We reject the same argument made here by defendant. Additionally, we do not read Avila, supra, 46 Cal.4th 680 as basing its holding on the prosecutor's statement that distinguished the "'dire consequences'" of a willful, deliberate and premeditated decision to kill someone from the intentional decision to speed through a yellow light. The yellow light example in Avila did not do more than demonstrate the precept—correct under California law—that a deliberative, premeditated decisionmaking process can be accomplished in a relatively brief period. The prosecution's argument in this case did the same.
Even were we to conclude the prosecutor's argument constituted error, defendant has not shown prejudice under either the state or federal standard. (People v. Cook (2006) 39 Cal.4th 566, 608 [reversal under the state law test is required only if there is "a reasonable likelihood of a more favorable verdict" in the absence of the error, while a federal constitutional error requires reversal unless it is harmless beyond a reasonable doubt].)
Defendant had a history of threats against the victim. On the night of the shooting, during a verbal and physical altercation between the two men inside the home, defendant fired a weapon at the victim; but it jammed. After other guests broke up the fight and momentarily restrained defendant, the victim left. Defendant followed and shot the victim outside as he was driving away. Defendant immediately gave the gun to his girlfriend, Arbogast, and fled to a friend's house in another county, where he left ammunition of the same caliber as that used in the shooting. When defendant learned he was a suspect in the murder, he removed the battery from his cell phone to prevent the police from locating him. Any error was harmless beyond a reasonable doubt.
II.
INSTRUCTIONAL ERROR
A.
Factual Background
Over an objection by defendant's trial counsel, the trial court instructed the jury with CALCRIM No. 361: "If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to do so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. [¶] The People must still prove the defendant guilty beyond a reasonable doubt. If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure." The instruction should not have been given in this case. The instructional error, however, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
The colloquy was as follows:
"[Defense counsel]: That I don't believe that there's any basis for it. I don't think there's any basis for a statement that he was presented with and should have denied and he did not deny. I don't think that he should be expected to . . . [¶] . . . [¶] . . . explain or deny. He hadn't been confronted. He can only answer what he's actually asked, and he wasn't presented with anything on a prior occasion that he refused to explain or deny. So his not going outside of the questioning is not a refusal by him to explain or deny. It shouldn't be given.
"[Trial court]: . . . The court does think it's appropriate based on his explanation of the behavior he had after the events occurred and during the point in time of the actual shooting. [¶] He doesn't really explain where he is at any point in time at that point, and where the van is, and what he can see, or what happens afterward; just that he leaves, which, again, doesn't really explain that he's aware anyone has been shot. [¶] Why leave? There's been a shot. That's gone off. There's a variety of reasons that a jury could find that there are questions that needed to be answered and that he did not."
B.
Analysis
We independently review challenged jury instructions: "In reviewing a claim of instructional error, [we] must consider whether there is a reasonable likelihood that the trial court's instructions caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed 'in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.'" (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
People v. Cortez (2016) 63 Cal.4th 101 (Cortez) is dispositive. There, the Supreme Court defined the evidentiary parameters that justify instructing jurors with CALCRIM No. 361. CALCRIM No. 361 is appropriate when a defendant testifies, but fails "to explain or deny any [incriminating] fact or evidence within [his] personal knowledge." (Cortez, supra, at p. 110.) However, the instruction "applies only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge." (Id. at p. 117.) CALCRIM No. 361 should not be given "if the defendant's testimony conflicts with other evidence or may be characterized as improbable, incredible, unbelievable, or bizarre[. Those circumstances are] not . . . 'the functional equivalent of no explanation at all.' On the other hand, those circumstances do suggest that the defendant may have 'deliberately lied about something significant,' in which case a court may . . . instruct jurors to 'consider not believing anything that witness says.' (CALCRIM No. 226.)" (Cortez, supra, at p. 117.)
Cortez's choice of words to characterize a defendant's testimony—"improbable, incredible, unbelievable, or bizarre"—was not random. (Cortez, supra, 63 Cal.4th at p. 117.) A generation earlier, in People v. Belmontes (1988) 45 Cal.3d 744 (Belmontes), the Supreme Court held the CALJIC version of CALCRIM No. 361 was appropriate when "'the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible.'" (Belmontes, supra, at p. 784.) Cortez expressly overruled Belmontes and People v. Redmond (1981) 29 Cal.3d 904 "[t]o the extent" those decisions came to this conclusion. (Cortez, supra, 63 Cal.4th at p. 118.) Cortez further explained that CALCRIM No. 226 "implicate[s] a testifying defendant's credibility as a witness [while] the focus of CALCRIM No. 361 . . . is not on the defendant's credibility as a witness, but on the role of a testifying defendant's failure to explain or deny incriminating evidence [and] 'should be considered only in relation to evidence that he fails to explain or deny.'" (Cortez, supra, 63 Cal.4th at p. 118.)
CALJIC No. 2.62 provides in relevant part that the jury may consider a testifying defendant's failure "to explain or deny any evidence against [him] introduced by the prosecution which [he] can reasonably be expected to deny or explain because of facts within [his] knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable."
The Attorney General argues CALCRIM No. 361 was properly given based solely on defendant's "bizarre and implausible explanations for the evidence against him." The Attorney General does not cite Cortez, supra, 63 Cal.4th 101 in his brief, but relies instead on pre-Cortez Court of Appeal decisions tied to the now-overruled aspect of the holding of Belmontes (e.g., People v. Vega (2015) 236 Cal.App.4th 484, 498; People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1031; People v. Mask (1986) 188 Cal.App.3d 450, 455). The Attorney General's argument and cited authorities lack merit.
C.
The Error Was Harmless
The parties disagree as to what standard applies to determine whether the instructional error was prejudicial. Defendant contends CALCRIM No. 361 constituted an impermissible comment on his failure to testify, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Therefore, defendant argues, the error requires reversal unless it was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) The Attorney General contends any error in giving CALCRIM No. 361 is an error of state law that requires reversal only when a different result would be reasonably probable in the absence of the error. (People v. Roehler (1985) 167 Cal.App.3d 353, 393.)
As discussed ante, the evidence supporting the conviction for first degree murder was overwhelming. The prosecutor did not mention CALCRIM No. 361 in closing argument, either by direct reference or by commenting on evidence defendant allegedly failed to explain or deny.
The language of CALCRIM No. 361 itself tends to indicate any error in giving the instruction was harmless, as it reemphasizes the prosecution's burden of proof is beyond a reasonable doubt, despite any failure by the defendant to explain or deny the evidence. The trial court also instructed the jury not all instructions necessarily applied and the jury should not make any assumptions because the court had given a certain instruction. And the trial court fully instructed the jurors that they were the arbiters of the witnesses' credibility and how they should evaluate witness testimony.
III.
REMAND TO THE TRIAL COURT TO ALLOW IT TO EXERCISE DISCRETION TO STRIKE THE
FIREARM ENHANCEMENT UNDER SECTION 12022 .53, SUBDIVISION (h) IS APPROPRIATE.
The trial court sentenced defendant to a total prison term of 80 years to life, calculated as follows: 25 years to life for murder, doubled to 50 years to life due to the strike prior, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) firearm sentencing enhancement, and a consecutive determinate five-year term for the section 667, subdivision (a) serious felony prior.
At the time defendant was sentenced, California law made the imposition of the firearm sentencing enhancement mandatory. Senate Bill No. 620 (2017-2018 Reg. Sess.), which became effective January 1, 2018, gives sentencing courts the discretion to, "in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h).) Remand is required to allow the trial court to exercise its discretion "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." (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [declining to remand to allow trial court to exercise discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike prior conviction; trial court had stated at sentencing that imposing maximum sentence was appropriate, and had increased sentence beyond what the Three Strikes law required], italics added.) "The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court's statements and sentencing decisions to infer what its intent would have been." (People v. Jones (2019) 32 Cal.App.5th 267, 272-273.)
In People v. McVey (2018) 24 Cal.App.5th 405, the appellate court held that remand for resentencing following the enactment of Senate Bill No. 620 was not necessary when the trial court had imposed the aggravated sentence on a section 12022.5, subdivision (a) firearm enhancement based on its finding that the aggravating factors "far outweighed any mitigating factors." (People v. McVey, supra, 24 Cal.App.5th at p. 419.) The appellate court concluded "that remand in these circumstances would serve no purpose but to squander scarce judicial resources." (Ibid.)
At the sentencing hearing in this case, the trial court considered the argument by defendant's trial counsel that the court should (1) exercise its discretion to strike the serious felony prior and/or (2) strike the finding of premeditation and deliberation. The trial court refused both requests. The trial court made the following statement on the record: "And the court will also then not strike the . . . premeditation and deliberation. The court would have also imposed, as required by law, the 12022.53 which is an additional 25 years, and then the court did not strike the strikes." (Italics added.) The trial court's language with regard to the enhancement is not clear. The trial court might have meant to say even if it had the discretion to strike the firearm enhancement at the time of sentencing, it would not have done so. But the reference to what the trial court was required by law to impose tends to indicate the court felt its hands were tied in imposing the enhancement. Because the appellate record does not clearly indicate that the trial court would have refused to strike or dismiss the firearm enhancement if it had had the discretion to do so, we must remand the matter to the trial court to reconsider the sentence imposed in light of the changes to section 12022.53, subdivision (h).
Section 12022.53, subdivision (d) provides that a person who, while committing a specified felony, "personally and intentionally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." The reporter's transcript of defendant's sentencing hearing reflects that the trial court imposed a sentence of 25 years to life for the sentencing enhancement. The minute order and the abstract of judgment, however, indicate the sentence imposed for the firearm sentencing enhancement was 25 years. On remand, if the trial court reimposes the section 12022.53 firearm sentencing enhancement, it should ensure that the minute order and the abstract of judgment reflect the correct sentence.
IV.
THERE IS NO NEED TO ADDRESS DEFENDANT'S REMAINING SENTENCING ISSUES
ON THEIR MERITS
The trial court imposed a consecutive five-year sentence for the serious felony prior conviction pursuant to section 667, subdivision (a)(1). At the time of defendant's sentencing, this was a mandatory sentence. Senate Bill No. 1393 (2017-2018 Reg. Sess.), which became effective January 1, 2019, gives trial courts the discretion to dismiss a sentencing enhancement under section 667, subdivision (a). (§§ 667, subd. (a), 1385, subd. (b), both as amended by Stats. 2018, ch. 1013, §§ 1, 2.) The Attorney General concedes Senate Bill No. 1393 applies retroactively to defendant's case. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Because we are remanding the matter for resentencing under section 12022.53, subdivision (h), we will also allow the trial court to address the issue of the section 667, subdivision (a)(1) enhancement in the first instance. We note, however, that when the trial court denied defendant's motion to strike a prior strike under People v. Superior Court (Romero), supra, 13 Cal.4th 497, it observed his prior strike was not remote in time and he had not remained free from criminal activity since the prior strike. Also, in a previous criminal matter, the trial court struck the prior strike, but defendant squandered that opportunity.
As part of defendant's sentence, the trial court imposed a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)), and a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)). Citing People v. Dueñas (2019) 30 Cal.App.5th 1157, 1173 (Dueñas), defendant argues the trial court violated his right to due process under the United States and California Constitutions by imposing the assessments and fine without a fact finding he had the present ability to pay. Defendant contends the assessments must be reversed and the execution of the fine stayed unless the trial court makes a finding that defendant has the present ability to pay. This question also should be addressed by the trial court in the first instance on remand.
We note that, on a vastly different set of facts, the Dueñas court held that due process of law requires that a trial court determine a defendant's "present ability to pay" before imposing court facilities and operations assessments and restitution fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Since Dueñas was decided, more than 300 opinions have issued from the California Courts of Appeal citing it, criticizing it, and distinguishing it. Recently, the California Supreme Court granted a petition for review of an opinion addressing a Dueñas argument, on the following issues: (1) "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments?" and (2) "If so, which party bears the burden of proof regarding defendant's inability to pay?" (People v. Kopp (Nov. 13, 2019, S257844) 2019 Cal. Lexis 8371.)
Multiple courts have concluded that even if Dueñas were correctly decided, any error in failing to hold an ability to pay hearing is harmless when the defendant's sentence is long enough that he or she would be able to earn enough while in prison to pay off the assessments and fines; in some of those cases, the total sentence imposed was much shorter than the sentence originally imposed on defendant here. (See People v. Aviles 2019) 39 Cal.App.5th 1055, 1076-1077 [defendant sentenced to 82 years to life]; People v. Kopp (2019) 38 Cal.App.5th 47, rev. granted Nov. 13, 2019, S257844 [one defendant sentenced to 81 years to life; the other defendant sentenced to 4 years plus 25 years to life]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [6 years, with 332 days of presentence credits]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [8 years].)
DISPOSITION
The judgment is affirmed, and the matter is remanded for resentencing.
DUNNING, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.
Retired judge of the Orange Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.