Opinion
C080973
05-18-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO LOPEZ ESCOVAR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. NCR92013, NCR92960, NCR94134)
In this consolidated case, the jury found defendant guilty of 29 felonies arising from three different incidents. In the first and third incidents, the police stopped defendant's vehicle and found drugs and weapons. In the second incident, the major focus at trial, the jury found defendant tied up, tortured or beat, shot at, threatened, and robbed three men who were working for him at a marijuana grow. The trial court sentenced defendant to 98 years four months to life in prison.
Defendant's true name is Alfredo Garcia and that was the name used at trial. At the first traffic stop, defendant had identification in the name of Antonio Lopez Escovar and case No. NCR92960 was filed in that name. Defendant had a number of aliases.
On appeal, defendant raises claims of instructional error, prosecutorial misconduct, and ineffective assistance of counsel. He contends the trial court erred in denying his timely motion to discharge counsel and violated Penal Code section 654 by imposing unstayed terms on both the torture and robbery charges. We find no prejudicial error as to these claims. On recall of remittitur, defendant contends the case should be remanded for the trial court to exercise its discretion under Senate Bill No. 620 whether to strike any of the various firearm enhancements under sections 12022.5 and 12022.53. The People concede remand is appropriate. We remand for the exercise of discretion under Senate Bill No. 620 and otherwise affirm the judgment.
Further undesignated statutory references are to the Penal Code. --------
FACTS
July 31, 2014 (Case No. NCR92013, counts XIX-XXIV)
On July 31, 2014, Deputy Mike Enyart made a traffic stop on a blue Cadillac Escalade. Defendant was the driver and consented to a search. Enyart found a plastic bag containing 21.5 grams of methamphetamine in defendant's pocket and a semiautomatic handgun between the driver's seat and the center console of the Cadillac. Defendant told Enyart that both the drugs and the gun were his.
Defendant, a felon who was prohibited from possessing a firearm, was convicted of numerous drug and weapon offenses and enhancements based on this incident.
November 27, 2014 (Case No. NCR92960, counts I-XVIII)
Brothers Jacobo and Kelvin Portillo came from Honduras to the United States looking for work so they could send money home to their family. Eventually, they worked on a marijuana farm in Tehama County; they lived in a trailer where they processed marijuana. A third man, Zeferino Tapia, also lived and worked in the trailer. Tapia had come from Mexico to find work and send money home. The three men worked for defendant, who lived in another trailer nearby.
On November 26, 2014, defendant came by and threatened them. He said he was looking for 60 pounds of marijuana and accused them of stealing it; he told them he would be back the next day to "settle accounts." Defendant returned the next day with two men. They were all armed; both defendant and another man had AR-15 rifles. The men grabbed Kelvin, Jacobo, and Tapia and tied them up with plastic ties; Kelvin and Jacobo together and Tapia separately in the kitchen.
The men beat Kelvin, Jacobo, and Tapia, directing most of the blows to Jacobo and Tapia, beginning with Tapia. They used the butt of a rifle, kicked them, and also beat Jacobo with a coffee cup. The men jumped on Tapia and defendant fired a bullet into the floor near Tapia's head. When he heard the shot, Kelvin thought Tapia had been killed. As the men beat Kelvin, Jacobo, and Tapia, defendant demanded the "truth" and wanted to know where the marijuana was. Defendant told the other two men to go outside and dig a hole to bury the victims. Defendant or another man threatened Kelvin with a machete.
The men left in three vehicles, a Hummer, a motorbike, and Tapia's car. They took the papers for the car and the victims' phones and money. Kelvin found some scissors and cut the plastic ties. He and Jacobo found Tapia unresponsive. Kelvin and Jacobo left; Jacobo had been hit in the knee and could not walk so Kelvin carried or dragged him.
Kelvin and Jacobo made their way to a house where they received help. Deputy Enyart met them at a gas station. Kelvin had a swollen right eye and faint ligature marks on his wrists. Jacobo was more severely injured; his face had severe swelling and discoloration. There was dried blood on his hands and face, and ligature marks on his wrists. Both of his nasal bones and the septum of his nose had been fractured.
Both Kelvin and Jacobo identified defendant's picture as one of the assailants. Jacobo became so emotional when he saw defendant's picture on the deputy's phone that he almost punched the phone. At the hospital both Jacobo and Kelvin identified defendant as their attacker. Kelvin picked out defendant's photograph from a lineup; Jacobo could not.
A SWAT team went to the trailer and found the injured Tapia. They also found zip ties, machetes, scissors, and ammunition. There was a bullet hole in the floor and paperwork in defendant's name or an alias. The officers also found marijuana. There was marijuana hanging on a drying string, marijuana in trimmed poles in garbage bags, and marijuana leaves on the floor. There were also new marijuana plants. Tapia later identified defendant.
Based on this incident, defendant was convicted of two counts of torture (Jacobo and Tapia), three counts each of robbery, assault, criminal threats, and false imprisonment, with firearm enhancements, as well as drug and firearm offenses.
After the beating, Kelvin, Jacobo, and Tapia learned they might be eligible for a U-visa, which would permit them to remain in the United States as non-citizen victims of violent crime. They wanted the visas; to obtain them they had to tell the truth about what had happened in connection with the crimes.
April 14, 2015 (Case No. NCR94134, counts XXV-XXXI)
On April 14, 2015, Agent Ray Martinez with the Tehama Interagency Drug Enforcement Task Force believed defendant was in the Corning area. He made arrangements for a uniformed officer to make a traffic stop on defendant. Defendant was driving a brownish taupe Hummer that day. After the officer activated his lights and siren, defendant did not stop. He led the officers on a chase and then abruptly stopped and got out of his vehicle. Officers secured him and removed a gun from his pocket; defendant also had an assault rifle in the Hummer. Later officers found multiple plastic bags and a half gram of methamphetamine in defendant's pocket.
Defendant was convicted of multiple drug and weapon offenses based on this incident. The jury was unable to reach verdicts on the evading and resisting counts and these counts were dismissed.
DISCUSSION
I
Failure to Instruct on Accomplice Testimony
Defendant first contends Jacobo, Kelvin, and Tapia were accomplices to counts 16 and 17, cultivating marijuana and possession of marijuana for sale, because they worked for defendant harvesting and processing the marijuana. He argues that the trial court erred in failing to instruct the jury sua sponte that an accomplice's testimony implicating defendant must be viewed with caution and corroborated by other evidence.
"A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.)
"When a jury receives substantial evidence that a witness who has implicated the defendant was an accomplice, a trial court on its own motion must instruct it on the principles regarding accomplice testimony. [Citation.] This includes instructing the jury that an accomplice's testimony implicating the defendant must be viewed with caution and corroborated by other evidence. [Citations.]" (People v. Houston (2012) 54 Cal.4th 1186, 1223.)
The People concede the instruction should have been given, but contend the error was harmless because there was sufficient corroborating testimony. "A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is sufficient corroborating evidence in the record. [Citation.] 'Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]' [Citation.] The evidence 'is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 370.) The failure to instruct on consideration of accomplice testimony is state law error. (People v. Williams (2010) 49 Cal.4th 405, 456.)
Here, there was more than sufficient corroborating evidence of the marijuana offenses. Defendant's landlord testified he allowed defendant to use 10 acres of the property and defendant was growing marijuana on it. Detective Parker testified the trailer where Tapia was found had been used to process marijuana. He found marijuana drying, marijuana in trimmed poles in garbage cans, leaves on the floor, and new marijuana plants. Defendant was connected to that trailer by several documents found there in the name of one of his aliases.
There was also corroborating evidence as to the counts related to the assaults. The victims' injuries and the evidence found in the trailer corroborated their version of events. The injured Tapia was found in the trailer just as Jacobo and Kelvin claimed. Officers also found plastic ties, scissors, machetes, ammunition, and the bullet hole in the floor. Defendant's documents tied him to the trailer. Defendant was later stopped in a Hummer, the same type of vehicle in which one of the assailants left according to Kelvin and Jacobo. Defendant had an assault rifle, which was the same type of weapon used in the assault.
Defendant contends the failure to instruct on accomplice testimony infected all of the counts arising from the November 27, 2014 events and all 18 counts should be reversed. He argues the prosecutor "exploited" the failure to give the instruction in two ways. First, he downplayed evidence that Jacobo, Kelvin, and Tapia were minimizing their involvement in growing marijuana, and thus were not entirely truthful. Second, he argued their need to cooperate to obtain a U-visa amounted to no more than the obligation of every witness to tell the truth. Defendant contends an instruction to view the testimony of Jacobo, Kelvin, and Tapia with caution was necessary "because they testified with the realized expectation of immunity and the hope of favor to avoid deportation."
We reject the contention that the failure to instruct on accomplice testimony improperly bolstered the credibility of the three victims as to the other crimes. The issue of the victims' alleged incentive to favor the prosecution and name defendant as the perpetrator due to immigration concerns was squarely before the jury. The trial court fully instructed the jury on how to evaluate a witness's testimony, including consideration of whether the witness was influenced by bias or prejudice or a personal interest in how the case was decided. Defense counsel argued the three victims were lying because they were afraid to name the actual perpetrators; they named defendant only because they had to name someone to obtain a U-visa and stay in the United States. Defense counsel brought this point home in his cross-examination of Kelvin, Jacobo, and Tapia. The issue was so prominent at trial that the People recalled these three witnesses in rebuttal to testify that they learned of the U-visa program only after the beatings and their initial identification to the police of defendant as the culprit.
II
Prosecutorial Misconduct
Echoing the previous argument, defendant contends the prosecutor committed misconduct when, in addressing the victims' need to cooperate to obtain a U-visa, he argued that to cooperate meant simply to tell the truth and that Tapia, Jacobo, and Kelvin attended court under subpoena and had to testify truthfully just like "[e]very witness." Defendant argues Tapia, Jacobo, and Kelvin were not like other witnesses, testifying only because they had been subpoenaed. Rather, they had not been prosecuted despite their participation in an illegal marijuana grow, and were hoping to obtain a U-visa to remain in the United States. Defendant contends the prosecutor failed to correct the false impression that these witnesses were not the beneficiaries of favors.
Defendant recognizes that his trial counsel failed to object to this argument. He contends this court still has the authority to reach the issue. Further, he argues the failure to object was ineffective assistance of counsel. We find neither prosecutorial misconduct nor ineffective assistance of counsel.
"The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
The prosecutor's argument here was neither unfair nor deceptive, and he did not conceal any benefits these witnesses had received or would receive in the future. The prosecutor conceded that Tapia, Jacobo, and Kelvin were growing marijuana and might be trying to minimize their culpability. He explained it was not necessary to decide the level of their involvement and knowledge because: "We are not here trying them for cultivating marijuana." As discussed ante, the role of immigration concerns, the U-visa, and the need to cooperate were all fully explored at trial. The jury heard that Detective Parker rented hotel rooms for the three men. Later, they went to a church in a city and were told about the U-visa.
Because there was no prosecutorial misconduct, defense counsel was not ineffective in failing to object. (People v. Thomas (1992) 2 Cal.4th 489, 531.)
III
Ineffective Assistance of Counsel
Defendant contends his own trial counsel rendered ineffective assistance in closing argument by equating the reasonable doubt standard to that used in important decisions such as buying a house, marrying, or having a child. He contends this argument lowered the prosecution's burden of proof to a preponderance of the evidence standard and requires reversal.
In People v. Brannon (1873) 47 Cal. 96 at page 97, the trial court instructed the jury to convict "if they should 'be satisfied of the guilt of the defendant to such a moral certainty as would influence the minds of the jury in the important affairs of life.' " Our Supreme Court rejected this standard for criminal cases. "The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required. There must be more than a preponderance of evidence. There must be in the minds of the jury an abiding conviction, to a moral certainty, of the truth of the charge, derived from a comparison and consideration of the evidence. They must be entirely satisfied of the guilt of the accused." (Ibid.)
More recently, cases have found equating the prosecutor's burden of proof with everyday decision-making in a juror's life "trivializes the reasonable doubt standard" and violates the defendant's due process rights. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35-36 [prosecutor improperly argued jurors use reasonable doubt standard when changing lanes or deciding to marry]; People v. Johnson (2004) 115 Cal.App.4th 1169, 1171-1172 [during jury selection trial court improperly analogized juror decision-making in criminal case to planning vacations and getting on flights]; People v. Johnson (2004) 119 Cal.App.4th 976, 982-983 [during voir dire, court told jurors to make the " 'kind of decisions you make every day in your life,' " such as when driving through an intersection and prosecutor equated reasonable doubt to everyday decision-making].)
The People properly concede that equating the reasonable doubt standard to that used in everyday decisions is improper, but contend defendant cannot establish the prejudice necessary to establish ineffective assistance of counsel. The standard for prejudice in a claim of ineffective assistance of counsel "is a reasonable probability that, but for counsel's error, the verdict would have been different. [Citations.]" (People v. Neely (2009) 176 Cal.App.4th 787, 796.)
"When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and [counsel's] comments as words spoken by an advocate in an attempt to persuade.' [Citation.]" (People v. Osband (1996) 13 Cal.4th 622, 717.)
After closing arguments, the trial court instructed the jury on the People's burden to prove the case beyond a reasonable doubt and the correct definition of reasonable doubt. The court also instructed the jury: "You must follow the law as I explain it to you, even if you disagree with it. If you believe the attorneys' comments on the law conflict with my instructions, you must follow my instructions." These instructions on the reasonable doubt standard, the prosecution's burden of proof based on that standard, and the specific instruction to ignore any contrary argument, cured the error in defense counsel's argument. (See People v. Nguyen, supra, 40 Cal.App.4th at pp. 36-37.)
People v. Centeno (2014) 60 Cal.4th 659 is instructive on the issue of prejudice where there is an improper argument on reasonable doubt. In Centeno, the prosecutor displayed a geographic outline of California in rebuttal argument and asked the jury to consider a hypothetical criminal trial in which the issue was " '[W]hat state is this?' She then laid out hypothetical 'testimony' given by witnesses that contained inconsistencies, omissions, and inaccuracies, but urged that, even had the jurors heard such evidence, they would have no reasonable doubt that the state was California." (Id. at p. 664.) Our Supreme Court found this argument was improper. "The use of an iconic image like the shape of California or the Statue of Liberty, unrelated to the facts of the case, is a flawed way to demonstrate the process of proving guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors' own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion." (Id. at p. 669.)
The court found defense counsel's failure to object to the argument was prejudicial. The jury had no reason to reject the argument because it was not contrary to the court's instructions, but purported to illustrate them, and the only instructions given after this argument were on lesser offenses and the verdict forms, so the prosecutor's argument was the last word on the subject of reasonable doubt. (People v. Centeno, supra, 60 Cal.4th at pp. 676-677.) Further, even the People conceded the case was "very close" and depended almost entirely on the testimony of a child witness who was difficult to examine on both direct and cross-examination. (Id. at p. 677.) "Given the closeness of the case and the lack of any corrective action, there is a reasonable probability that the prosecutor's argument caused one or more jurors to convict defendant based on a lesser standard than proof beyond a reasonable doubt. Accordingly, defendant's convictions cannot stand." (Ibid.)
We find Centeno distinguishable as here there was corrective action and the case was not "very close." The trial court correctly defined reasonable doubt after the defense closing; thus the trial court had the last word. Further, this was not a close case, as there was abundant evidence of defendant's guilt. Many of the charges were not even contested. As to those that were, there was compelling and consistent evidence from three witnesses and, as described ante, their testimony was corroborated in many respects by other evidence. It is not reasonably probable that the jury would have reached a different verdict without defense counsel's error in explaining reasonable doubt. As defendant cannot establish prejudice, he cannot establish ineffective assistance of counsel. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
IV
Motion to Discharge Counsel
Defendant asserts the trial court erroneously denied his timely motion to discharge retained counsel. He contends this ruling denied him his constitutional right to counsel of choice.
The record does not support this contention. As we will explain, defendant never made a motion to discharge his retained counsel. Nor did he attempt to substitute in new retained counsel, despite the trial court's agreement to continue his sentencing in order to allow him more time to find a new lawyer for sentencing and possibly appeal. Nor did he claim indigency and seek to have counsel appointed. Instead, he filed a form motion that did not apply to his situation and orally requested a continuance--which was granted--at the resulting hearing.
The jury returned its verdicts on August 31, 2015. In October, the court addressed a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 that defendant had submitted in September. At the hearing, counsel represented that defendant had consulted with another lawyer and wanted a continuance to consult further with and retain that lawyer for sentencing and possibly appeal. The court granted the continuance, stating: "He's got the right to hire the attorney he wants to hire." The court ordered current defense counsel to remain attorney of record until any substitution was complete. The court told defendant to "do everything you can do to get this attorney on board."
Two weeks later, defendant had not hired new counsel and indicated "if it was going to happen," it would be after sentencing. Defendant told his counsel he was prepared to proceed with sentencing. Without objection, the court sentenced defendant.
We find no error. Contrary to his argument, defendant never moved to discharge his retained counsel. Instead, he filed a form Marsden motion. He checked all the boxes indicating deficient performance, and added that counsel refused to let him take the stand in his defense. But a Marsden motion is an inappropriate vehicle to address defendant's complaints about retained counsel; defendant had the right to discharge current counsel and hire a new attorney without leave of the court. (See People v. Lara (2001) 86 Cal.App.4th 139, 155.) Here, the trial court gave defendant extra time to do just that, and encouraged him to "get this [new] attorney on board." There was no reason for the court to inquire into defendant's dissatisfaction with counsel when the court granted the continuance for defendant to obtain new counsel; defendant was entitled to new counsel without any showing of deficient performance or irreconcilable conflict. Although it is true that "[a] defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result," (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245), here, as we have explained, defendant's trial counsel was not appointed; thus he could switch lawyers at will.
Defendant appears to be arguing that he was improperly denied appointed counsel because he had "improvidently" attested that he was married to a woman who had take- home pay of $3,000 a month. Defendant notes the probation report indicated he had never been legally married. The record does not show that defendant ever raised his entitlement to appointed counsel in the trial court or that he was indigent. While he was not legally married, the probation report stated he considered his partner of the last six years as his spouse.
Defendant argues he could have established his indigency and his right to appointed counsel if the trial court had inquired as to his reasons for requesting substitute counsel. Defendant relies on Bland v. California Dep't of Corrections (9th Cir. 1994) 20 F.3d 1469, overruled on other grounds in Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 1025. In Bland, after the defendant's attorney, retained by his father, failed to appear more than once, the defendant moved to relieve counsel and requested a public defender. The trial court denied the request. (Id. at p. 1475.) The Ninth Circuit found the defendant was denied his right to substitute counsel. (Id. at p. 1479.) We find Bland distinguishable. There, the defendant's request to substitute counsel was denied, and by requesting a public defender the defendant notified the court that he lacked funds to hire a new attorney. Here, as we have described and in sharp contrast to Bland, neither of those things happened.
In his reply brief, defendant challenges the trial court's order that current counsel remain attorney of record while defendant sought new counsel. To the extent that we understand the argument, we disagree; as we have explained, defendant did not yet have an attorney to substitute in, nor did he seek to represent himself or ask to have an attorney appointed. The trial court did not err by ensuring defendant remained represented while seeking new counsel. The argument to the contrary makes no sense. We see no error.
V
Section 654The trial court sentenced defendant on both torture counts and two robbery counts where Jacobo and Tapia were the victims. Defendant contends sentencing him for both the torture and robbery of Jacobo and Tapia violates section 654 and the sentence on the two robbery counts must be stayed. Defendant contends the torture of both men was the incidental means to commit the robberies.
Section 654, subdivision (a) provides in pertinent 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
"Section 654 precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. 'Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.' [Citations.] '[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" (People v. Evers (1992) 10 Cal.App.4th 588, 602.)
The defendant's intent and objective are factual questions for the trial court, and its ruling on these matters will be upheld if supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.) There is ample evidence to support the trial court's implicit finding that defendant's intent and objective in torturing Tapia and Jacobo was separate from, rather than incidental to, his intent and objective in committing the robberies. Defendant tortured his victims in an attempt to force them to reveal the location of the missing 60 pounds of marijuana. Only after that attempt proved unsuccessful did defendant steal their phones and money and Tapia's car. The torture was not necessary for the robberies; the robberies could have been completed after defendant and his cohorts tied up the victims, without any additional force.
In his reply brief, defendant contends the recent case People v. Corpening (2016) 2 Cal.5th 307 controls. In Corpening, robbers hatched a plan to steal valuable coins the owner was preparing to take to a swap meet in his van. One robber confronted the owner at gunpoint as he was preparing to drive away. The owner tried to thwart the robbery, but the robber drove away in the van with the coins. (Id. at p. 309.) Defendant was convicted of both carjacking and robbery and sentenced on each crime. (Id. at p. 310.) At issue on appeal was whether the forceful taking of the van--a taking that accomplished the crimes of both carjacking and robbery according to the prosecution--constituted a single act subject to the prohibition on multiple punishment under section 654. (Id. at p. 309.) "Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Id. at p. 313.) Our Supreme Court found there was only one act; the forceful taking of the van completed the actus reus for both carjacking and robbery. "Neither offense was accomplished until completion of the single forceful taking identified by the prosecution as the basis for conviction under the carjacking and robbery statutes." (Id. at p. 314.)
Defendant contends that here a single physical act, the infliction of great bodily injury, served as both the basis for the torture counts and the use of force necessary for robbery. In Corpening, it was the forceful taking that accomplished both crimes. Here, the infliction of great bodily injury did not accomplish the robberies, a taking was necessary. Under the Corpening analysis, there was not a single act subject to section 654. Instead, defendant and his accomplices committed a series of acts and substantial evidence supports a finding of different intents and objectives such that section 654 does not apply.
VI
Remand for Consideration Pursuant to Senate Bill No. 620
In a supplemental brief defendant contends remand is required for the trial court to consider whether to strike the section 12022.53 firearm enhancements. The People agree remand is appropriate and assert that remand should encompass the firearm enhancements under section 12022.5 as well.
The jury found true allegations that defendant discharged a firearm (§ 12022.53, subd. (c)) as to the torture and robbery counts (counts I-V). The jury also found true allegations that defendant personally used a firearm (§ 12022.5) as to the assaults, criminal threats and false imprisonment counts (counts VI-XIV). The trial court sentenced defendant to an additional 20 years on each of the torture counts and one robbery count and an additional six years eight months on the other two robbery counts. The court stayed the sentences on the remaining firearm enhancements.
On January 1, 2018, Senate Bill No. 620 went into effect. (Stats. 2017, ch. 682, §§ 1-2.) Senate Bill No. 620 amended sections 12022.5 and 12022.53, removing the bar on striking a firearm enhancement and granting the trial court discretion pursuant to section 1385 to strike or dismiss an enhancement. "The court may, 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. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c); 12022.53, subd. (h).)
Defendant contends, and the People concede, that the amendments to sections 12022.5 and 12022.53, potentially providing for lesser punishment, are retroactive to cases not yet final. (See In re Estrada (1965) 63 Cal.2d 740; People v. Francis (1969) 71 Cal.2d 66, 75-76.) We agree and accept the People's concession. In People v. Woods (2018) 19 Cal.App.5th 1080, at page 1091, this court explained: "[B]ecause there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply." (Accord People v. Robbins (2018) 19 Cal.App.5th 660, 679.) The People further concede that this is not a case where remand is unnecessary because the trial court indicated it would not have exercised discretion to lessen defendant's sentence. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The record is silent on this point.
The amendments to sections 12022.5 and 12022.53 took effect before the judgment in this case was to become final. (See People v. Vieira (2005) 35 Cal.4th 264, 306 ["for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].) Our original opinion was filed September 11, 2017. Defendant petitioned for review in the California Supreme Court. Our Supreme Court denied review on December 13, 2017, and the remittitur issued December 15, 2017. (Cal. Rules of Court, rule 8.272(b)(1)(A).) Under rule 13(1) of the United States Supreme Court Rules (28 U.S.C. 2101(c)), defendant had 90 days from the denial of review to petition the United States Supreme Court for review on certiorari. Thus, the case was not final when the amendments took effect January 1, 2018; therefore, the amendments of Senate Bill No. 620 apply.
In January, defendant moved to recall the remittitur to address the new law and we granted the motion. We remand the case to allow the trial court to exercise its discretion whether to strike any firearm enhancement.
VII
Corrections to Abstract
Our review of this case has revealed clerical errors in the determinate abstract of judgment. The abstract indicates the firearm enhancements on counts III-V are pursuant to subdivision (b) of section 12022.53; they were alleged under subdivision (c). The abstract further shows the stayed firearm enhancements on counts VI-VIII are pursuant to section 12022.53, subdivision (c); they were alleged under section 12022.5.
If these enhancements remain as part of the sentence after our remand for consideration of the exercise of discretion, the trial court is directed to prepare a corrected abstract of judgment reflecting the correct statutes and subdivisions for each enhancement.
DISPOSITION
The matter is remanded to the trial court to consider exercising its discretion under Senate Bill No. 620 and to prepare any amended or corrected abstract of judgment required thereafter, in a manner consistent with this opinion. In all other respects, the judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Butz, J.