Opinion
F073329
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. VICTOR JAVIER ESTRADA, Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F14905128)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Victor Javier Estrada was convicted of first degree murder. In addition, the jury found true a drive-by shooting special circumstance allegation and a firearm enhancement allegation.
Estrada argues the drive-by shooting special circumstance statute is unconstitutional. We reject this contention.
Estrada further argues Senate Bill No. 620 (Stats. 2017, ch. 682, § 2), which amended the applicable firearm enhancement statute to make application of the enhancement discretionary, is retroactive, necessitating remand for resentencing under the amended law. On this point, we agree with Estrada.
We will vacate Estrada's sentence and remand for resentencing in light of Senate Bill No. 620. In other respects, we affirm the judgment.
PROCEDURAL HISTORY
Estrada was charged by an information filed in the Fresno County Superior Court with one count of murder. (Pen. Code, § 187, subd. (a).) The murder charge was accompanied by a drive-by shooting special circumstance allegation under section 190.2, subdivision (a)(21) (i.e., that the murder was committed by shooting a gun from a motor vehicle with the intent to kill). The special circumstance allegation subjected Estrada to a sentence of life imprisonment without the possibility of parole (LWOP). A firearm enhancement allegation under section 12022.53, subdivision (d), for "personally and intentionally" discharging a firearm and proximately causing great bodily injury or death, was also attached to the murder charge. This enhancement requires imposition of an "additional and consecutive" term of 25 years to life, beyond the sentence for the underlying offense.
Subsequent statutory references are to the Penal Code unless otherwise specified.
A jury found Estrada guilty of first degree murder and found true both the special circumstance allegation as well as the firearm enhancement allegation. The court imposed a mandatory LWOP sentence for the special circumstance murder and a mandatory consecutive sentence of 25 years to life for the firearm enhancement.
FACTS
Estrada was convicted of shooting and killing David Vera near the intersection of Highway 180 and Reed Avenue, outside Sanger, on July 1, 2007. The murder occurred as a party taking place in the countryside surrounding Sanger was breaking up amid fears of gang tensions among the attendees. As the partygoers streamed to their cars, Omar Miranda, a Chankla Bulldogs gang member, was shot by Felix Rios, a Sureño gang member. Shortly thereafter, Vera was shot.
The prosecution's theory of the case was that Estrada killed Vera because they belonged to rival gangs—Estrada was a Sureño and Vera was a member of the Chankla Bulldogs—and also had a longstanding personal animus toward each other.
The defense did not present any evidence but relied instead on cross-examination and impeachment of prosecution witnesses. The defense theory of the case was that Estrada was not present when Vera was shot and was framed for the murder.
Estrada was 21 years old at the time of the offense.
Shooting of Omar Miranda
On the night of June 30-July 1, 2007, Hector Flores hosted a party, starting around 11:00 p.m. The party, which eventually swelled to 150 people, was held on "acreage" behind a residence in the countryside outside Sanger. The area where the party was held was accessed from a dirt road off the intersection of Highway 180 and Reed Avenue.
At approximately 1:30 a.m. on July 1, 2007, Flores became aware that some Chankla Bulldogs gang members were present at the party and that rival Sureño gang members were headed there. Flores decided to shut the party down because he "didn't want any problems." In a bid to get people to leave, he announced, falsely, that the police were on their way to the venue. People began slowly to stream towards cars parked along the dirt road. A few minutes later, several gunshots rang out. People panicked and a chaotic scene ensued, with people running for their cars, "just trying to get out." A logjam resulted.
It turned out that Omar Miranda, who was at the party, had been shot. Miranda came to the party with his girlfriend Erika Villareal, his brother Felipe, David Vera, and Vera's fiancée Aurelia Lopez. Miranda was a Chankla Bulldogs gang member and was wearing a red hat emblazoned with a "C," which signified the Chankla Bulldogs gang. As Miranda walked with Villareal to his Jeep after the party broke up, he exchanged words with an acquaintance. As they argued, someone came up behind Miranda and shot him seven times. As Miranda lay on the ground, the shooter put the gun under Miranda's chin but the gun misfired. The shooter then pistol-whipped Miranda. After the shooter left, Miranda's friends loaded him into a white pickup truck. Vera helped to direct traffic to allow the white pickup truck to quickly get to a nearby gas station, where an ambulance would meet it. Miranda survived and testified at trial.
Neither Miranda nor Villareal (his girlfriend) saw who shot him. But immediately after Villareal heard the gunshots, she saw Felix Rios holding a revolver and then pistol-whipping Miranda. Rios was associated with a Sureño street gang. Law enforcement never found Rios.
Murder of David Vera
After Miranda was shot, Villareal and Miranda's brother got into Miranda's Jeep and followed the white pickup truck carrying Miranda up the dirt track to the main road. At this point, Vera was still directing traffic nearby. Just as the Jeep got to the main road, a dark-colored Chrysler 300 "came out of nowhere" and "just slammed" into the front driver's side of the Jeep. Villareal, who was a passenger in the Jeep, testified she saw Estrada in the passenger seat of the Chrysler, pointing a gun at the Jeep; Estrada was wearing a white shirt. She then saw Vera come up to the window of the Chrysler and punch Estrada, at which point Estrada shot Vera. Villareal testified that she could not see the driver of the Chrysler or whether anyone else was in the car. Villareal was the only witness to identify Estrada as the shooter.
Lopez, Vera's girlfriend, drove Vera's car to the main road and parked it on the side of the road, while Vera was directing traffic. After the Chrysler slammed into the Jeep, Lopez saw Vera run to his car (Lopez was in the driver's seat). At the same time, the Chrysler reversed and drew alongside Vera's car such that the passenger sides of the two cars were next to each other. Vera was shot five times as he tried to get in the passenger seat of his car. Lopez saw a person wearing a white shirt in the passenger side of the Chrysler; the person was holding a gun. Lopez did not see the person's face. Stippling or burn marks around Vera's gunshot wounds established that he was shot at close range.
After Vera was shot, the Chrysler reversed and crashed into a fence running alongside the main road. Three people got out of the Chrysler and ran in the direction of a marshy wetland near the area where the party took place.
A subsequent police investigation identified Estrada, a Sureño gang member, as the murder suspect. Although the police had evidence suggesting that Estrada fled to Mexico in the hours after the murder, he was back in the Sanger area in 2008. In 2008, Estrada was arrested in connection with an assault committed by him and other Sureño gang member on Johnny Martinez, a member of the rival Fresno Bulldogs gang. Martinez told the police that during the assault, Estrada said to him: "'I'm going to do the same thing to you that I did the Ferm.'" "Ferm" was Vera's nickname.
DISCUSSION
I. Constitutionality of Drive-By Shooting Special Circumstance
Estrada contends the special circumstance finding in his case must be reversed and his sentence vacated because the drive-by shooting special circumstance (§ 190.2, subd. (a)(21)) is unconstitutional, both on its face and as applied in his case. He contends the respective elements of first degree drive-by murder and the drive-by shooting special circumstance are "defined in identical terms" and, without a "material distinction," the special circumstance violates the Eighth and Fourteenth Amendments because it does not narrow the class of defendants eligible for an LWOP sentence.
"[A]ny murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." (§ 189.)
"The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death." (§ 190.2, subd. (a)(21).)
Estrada's sentence for first degree murder was elevated to LWOP based on the jury's true finding on the drive-by shooting special circumstance. However, Estrada's argument is based on the Eighth Amendment's proscription against cruel and unusual punishment as it has been interpreted in the context of the application of the death penalty. (See Maynard v. Cartwright (1988) 486 U.S. 356, 362 [a state must provide a "principled means" for distinguishing between those who are eligible to receive the death penalty and those who are not]; Lowenfield v. Phelps (1988) 484 U.S. 231, 244 (Lowenfield) ["To pass constitutional muster, a capital sentencing scheme must 'genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.'"]; Zant v. Stephens (1983) 462 U.S. 862, 878 ["[S]tatutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty."].) Estrada's argument presupposes that a special circumstance is subject to the same constitutional requirements whether it triggers eligibility for an LWOP sentence or a death sentence. The People challenge that premise, contending that Estrada lacks standing to raise the instant challenge because it relies on constitutional requirements that apply to capital sentencing.
The jury was instructed on both first degree premeditated murder and first degree drive-by murder. In light of the evidence presented at trial, the prosecutor argued in closing argument that Estrada was guilty of first degree drive-by murder. Estrada contends, and the People do not dispute his claim, that the jury in turn relied on this theory in convicting Estrada of first degree murder.
We will assume, arguendo, that Estrada may challenge the drive-by shooting special circumstance, and further, that the constitutional requirements that apply when a special circumstance is used to impose the death penalty also apply when a special circumstance is used to impose an LWOP sentence. Turning to the merits of Estrada's argument, People v. Rodriguez (1998) 66 Cal.App.4th 157 (Rodriguez), which is on all fours with the instant case, previously rejected the same argument, i.e., that the identity of the respective elements of first degree drive-by murder and the drive-by special circumstance renders the latter unconstitutional. We agree with Rodriguez that the drive-by shooting special circumstance does not violate the federal Constitution "simply because it duplicates the elements" of first degree drive-by murder. (Rodriguez, supra, at p. 164.)
This conclusion is compelled by the holdings of both the United States Supreme Court, as well as the California Supreme Court. (See Lowenfield, supra, 484 U.S. at p. 246 [upholding the constitutionality, under the Eighth Amendment, of a special circumstance, where application of the special circumstance and the underlying murder conviction were based on virtually identical findings]; People v. Edelbacher (1989) 47 Cal.3d 983, 1023, fn. 12 [deeming "mertiless," under Lowenfield, an argument to the effect that the "lying-in-wait special circumstance is constitutionally infirm because it duplicates an element of first degree murder"]; People v. Catlin (2001) 26 Cal.4th 81, 158 ["first degree murder liability and special circumstance findings may be based upon common elements without offending the Eighth Amendment"]; People v. Gamache (2010) 48 Cal.4th 347, 406 [felony murder special circumstance is constitutional when applied to enhance penalty for felony murder, despite essentially identical elements].)
Estrada acknowledges that his argument is foreclosed by Rodriguez as well as applicable California Supreme Court precedents. Anticipating that we would follow these authorities—which, in the case of our Supreme Court's precedents, we are required to do—Estrada clarifies that he has raised the issue primarily to preserve it for federal review. As Estrada correctly anticipated, in light of the aforementioned authorities, we must conclude the drive-by shooting special circumstance is neither facially unconstitutional nor was it unconstitutionally applied here. (§ 190.2, subd. (a)(21).) II. Firearm Enhancement (§ 12022 .53 , subd. (d))
Senate Bill No. 620, signed by the Governor on October 11, 2017, and effective January 1, 2018, added the following language to the firearm enhancement provisions in sections 12022.5 and 12022.53:
"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." (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, § 1.)The new legislation thus granted trial courts new discretion to strike firearm enhancements arising under sections 12022.5 and 12022.53.
Here, the trial court imposed a firearm enhancement of 25 years to life under section 12022.53, subdivision (d). Estrada argues the amendment to section 12022.53 is retroactively applicable to his case under In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada), because it potentially mitigates punishment. The People concede the amendment is retroactive under Estrada. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091 (Woods) [applying Senate Bill No. 620 to case not yet final when law became effective]; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679 (Robbins) [same].)
The People argue, however, that remand for resentencing is not necessary in this instance because the sentencing court's failure to apply the new law was harmless. More specifically, the People contend there is no reasonable probability the court would have struck the enhancement had it been aware of the discretion conferred by the new law.
The People cite People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), in which the Court of Appeal, relying on comments made by the trial court at the sentencing hearing, declined to remand for resentencing after the courts gained discretion to strike prior strikes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. In Gutierrez, the trial court had exercised its discretion not to strike a different enhancement, commenting that it did not believe the defendant's sentence should be shortened. (Gutierrez, supra, at p. 1896.) Although Gutierrez did not remand for resentencing in light of the trial court's comments, it nonetheless clarified the standard for evaluating the necessity of remand. Gutierrez held that remand was necessary "unless the record show[ed] that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the [enhancement] allegations." (Id. at p. 1896, italics added.)
People v. McDaniels (2018) 22 Cal.App.5th 420 (McDaniels), applied the Gutierrez approach to the defendant's request for remand for resentencing in light of Senate Bill No. 620. McDaniels remanded the case for resentencing because "the record contain[ed] no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements" under the amendments effected by Senate Bill No. 620. (McDaniels, supra, at pp. 427-428.)
McDaniels's approach is further supported by a California Supreme Court case, also called Gutierrez, i.e., People v. Gutierrez (2014) 58 Cal.4th 1354. There, at the time of sentencing, the governing law contained a presumption that juvenile defendants found guilty of specific crimes under certain circumstances would be sentenced to LWOP terms. A change in the law, which was held to apply retroactively to cases still pending on direct appeal, dictated that this presumption be removed, thus increasing the scope of the trial court's sentencing discretion. Our Supreme Court held that, for defendants sentenced under the former law but to whom the new law applied retroactively, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Id. at p. 1391.) Our Supreme Court emphasized, "'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.'" (Ibid.)
We agree with the McDaniels approach. The new law drastically expands a trial court's sentencing discretion with respect to firearm enhancements. For defendants with enhancement findings under section 12022.53, subdivision (d), like Estrada, trial courts now have the power to increase the sentence by 25 years to life or not at all. This is so even though every case in which a section 12022.53, subdivision (d) allegation is found true is a case involving extreme violence, since the defendant must have personally and intentionally discharged a firearm, proximately causing great bodily injury or death. Senate Bill No. 620 represents a legislative determination that striking the enhancement will, nevertheless, sometimes be appropriate, thereby profoundly changing the sentencing environment when such an enhancement is at issue. Like the authorities discussed above, we recognize that unless the sentencing court "clearly indicate[s]" it would not have struck the enhancements in question even if it could, determining what it likely would have done had it possessed the new discretion, is an inherently speculative enterprise. (See People v. Gutierrez, supra, 58 Cal.4th at p. 1391.)
The People cite People v. Almanza (2018) 21 Cal.App.5th 1308 (Almanza I), which held that the amendments in Senate Bill No. 620 applied retroactively but nonetheless declined to remand for resentencing, because the crime was coldblooded, the defendant had an extensive criminal history, and the trial court chose to make sentences for two counts run consecutively, a choice it would not have made had it been inclined to be lenient. Almanza I concluded that, in light of these factors, there was no reasonable probability that the trial court would have struck the defendant's firearm enhancement even had it possessed discretion to do so. After the briefing in the instant case was completed, however, the Almanza I opinion was withdrawn on rehearing and a new opinion issued. (People v. Almanza (2018) 24 Cal.App.5th 1104 (Almanza II).) Almanza II rejected the reasonable probability standard advanced by Almanza I and instead adopted the McDaniels approach. Almanza II remanded the case to allow the trial court to reconsider its sentence in light of the amended firearm enhancement statute.
Here, the trial court imposed a mandatory LWOP sentence and a mandatory consecutive sentence of 25 years to life for the firearm enhancement. The trial court did not say anything at sentencing that would suggest that, had it possessed the discretion to strike the firearm enhancement, it would nonetheless have imposed the same sentence. Accordingly, we will remand for resentencing. (See People v. Gutierrez, supra, 58 Cal.4th at p. 1391 [remanding for resentencing where the record "[does] not clearly indicate that [the trial court] would have imposed the same sentence had [it] been aware of the full scope of [its] discretion"]; Robbins, supra, 19 Cal.App.5th at p. 664 [remanding for resentencing in light of Senate Bill No. 620, where defendant sentenced to LWOP plus 25 years to life for firearm enhancement, with underlying convictions for first-degree murder and premeditated attempted murder].)
DISPOSITION
The sentence is vacated and the case remanded to the trial court for resentencing in light of section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 1). The judgment is otherwise affirmed.
/s/_________
SMITH, J. I CONCUR: /s/_________
FRANSON, J. DETJEN, Acting P.J., Concurring and Dissenting.
I concur in the majority's holdings that the drive-by shooting special circumstance statute is constitutional and the statutory amendments engendered by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018) apply retroactively to Victor Javier Estrada, the defendant in this case. I respectfully dissent, however, from the conclusion a remand for sentencing is required. I would affirm the judgment in its entirety.
Estrada was sentenced on February 29, 2016. Prior to imposing sentence, the trial court commented on Estrada's actions and the gang evidence. The court characterized the evidence presented at trial as "very sad, distressing, and reflect[ing] criminal conduct that was so unfortunate" for those who witnessed it and for the family of David Vera, the victim. The court further characterized "everyone in the courtroom during the trial on both sides of the aisle that divided them [as] also victims of this senseless conduct between gangs . . . ," and noted Estrada made a statement "at another incident, while in possession of a gun, threatening the other party that he would do to him what he did to" Vera. The court found Estrada ineligible for a grant of probation, and stated it would not grant probation even if Estrada were eligible therefor.
The majority finds the amendments made by Senate Bill No. 620 necessitate a remand for resentencing. (Maj. opn., ante, p. 2.) The majority appears to take the position such a remand is required unless the sentencing court states it would impose the firearm enhancement even if it had the discretion not to do so. (Maj. opn., ante, p. 11.) I disagree. A remand in this case will serve no purpose other than to place another burden on an already overburdened trial court. The court's comments at sentencing make it clear it would not choose to exercise its discretion to strike the firearm enhancement. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
In my view, the cases on which the majority relies do not mandate a different conclusion.
In People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), the issue concerned the proper interpretation of Penal Code section 190.5, subdivision (b), which permitted trial courts to sentence certain juvenile offenders who committed special circumstance murder to prison for life without the possibility of parole (LWOP) or for 25 years to life. Although longstanding appellate authority had construed the statute's language as creating a presumption in favor of LWOP, the California Supreme Court held this was incorrect, and that instead the statute conferred discretion on trial courts to impose either sentence, with no such presumption. (Gutierrez, supra, at p. 1360.)
Further statutory references are to the Penal Code.
In determining the proper disposition, the state high court observed: " 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (Gutierrez, supra, 58 Cal.4th at p. 1391.) The court remanded for resentencing the two cases before it, because in one, the trial court expressly acknowledged the presumption and framed the pertinent question as whether it should deviate from the statutory requirement of LWOP, while in the other, the trial court did not expressly refer to the presumption, but the presumption had been undisturbed for over 20 years. (Id. at p. 1390.) The California Supreme Court explained: "Although the trial courts in these cases understood that they had some discretion in sentencing, the records do not clearly indicate that they would have imposed the same sentence had they been aware of the full scope of their discretion. Because the trial courts operated under a governing presumption in favor of life without parole, we cannot say with confidence what sentence they would have imposed absent the presumption." (Id. at p. 1391.)
To avoid remand, Gutierrez requires a clear indication, not an express statement, of how the trial court would have sentenced a defendant had it known the scope of its discretionary powers. It does not set so high a standard that it has the effect of mandating remand in virtually all cases in which the issue arises. Yet, the majority seems to endorse just such a standard. With respect to the issue addressed in Gutierrez, moreover, it was always clear sentencing judges had at least some measure of discretion. In such circumstances, it might be logical to expect a sentencing judge to state he or she would impose a sentence of LWOP even absent any presumption. By contrast, Senate Bill No. 620 granted discretion that previously did not exist. It would be illogical to expect a judge imposing a firearm enhancement before enactment of that legislation to state what he or she would do if discretion that did not exist, instead did exist. Thus, reviewing courts must look to the entire record of sentencing to ascertain whether the requisite clear indication exists such that remand would be an idle act.
In the present case, the sentence was mandatory, and so the trial court cited no aggravating or mitigating circumstances. It did, however, state it had read the probation officer's report. That report listed three circumstances in aggravation and none in mitigation.
In People v. McDaniels (2018) 22 Cal.App.5th 420, remand was found to be proper, because the record contained "no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements." (Id. at pp. 427-428.) Although not summarizing any statements made by the court at sentencing, the appellate court noted that the trial court, while imposing a substantial sentence, imposed well less than the maximum possible term. (Id. at p. 428.) Here, by contrast, though the trial court imposed the sentence mandated by the law as it stood at the time of sentencing, I find its statements clearly indicate it would not alter that sentence upon remand.
In People v. Robbins (2018) 19 Cal.App.5th 660, the People conceded the case should be remanded. (Id. at p. 678.) Accordingly, the appellate court had no occasion to address the propriety of such a disposition.
The majority makes much of the "drastic[] expan[sion]" in a trial court's sentencing discretion and the "profound[] chang[es] [in] the sentence environment" wrought by Senate Bill No. 620. (Maj. opn., ante, pp. 10-11.) It is true that a 25-year change often will make a significant difference in a defendant's sentence. As amended by Senate Bill No. 620, however, sections 12022.5, subdivision (c) and 12022.53, subdivision (h) permit the striking or dismissal of firearm enhancements "in the interest of justice pursuant to Section 1385 . . . ." In exercising discretion under section 1385, a court "acts improperly if guided solely by its personal belief regarding the effect a particular sentencing law may have on a defendant," while ignoring other individualized considerations. (People v. Orabuena (2004) 116 Cal.App.4th 84, 99.) Thus, I do not find the potential for a significantly lower sentence indicative, without more, of whether a remand is appropriate.
In the present case, striking the firearm enhancement will have no practical effect on Estrada, as he will still be serving a sentence of LWOP. The continued existence of an LWOP term does not automatically mean remand should not be ordered. (See People v. McDaniels, supra, 22 Cal.App.5th at p. 427; People v. Robbins, supra, 19 Cal.App.5th at pp. 664, 678-679.) Nevertheless, where, as here, the trial court's comments clearly indicate remand would be futile, it is yet another reason to find the matter particularly unsuited to expenditure of that court's limited time and resources. --------
Finally, I question the majority's decision to vacate the entire sentence. (Maj. opn., ante, p. 11.) In People v. McDaniels, supra, 22 Cal.App.5th at page 428, the appellate court, in its disposition, affirmed the convictions, but remanded the matter "for the trial court to consider whether to strike the three firearm enhancements . . . ." In People v. Robbins, supra, 19 Cal.App.5th at page 679, the appellate court reversed only the sentences imposed for the firearm enhancements. Although vacating the entire sentence likely will not cause problems or confusion in the present case, where the sentence — with or without the firearm enhancement — is straightforward and the sentencing judge is experienced, I am concerned about the effect vacating the entire sentence could have where more complicated sentences — and therefore, more potential for errors — are involved.
/s/_________
DETJEN, Acting P.J.