Opinion
A149884
10-11-2018
THE PEOPLE, Plaintiff and Respondent, v. LARRY DARNELL FULLER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 177434)
Defendant Larry Darnell Fuller appeals from a conviction, following a jury trial, of one count of murder (Pen. Code, § 187, subd. (a)) with the special circumstance that the victim was killed to prevent his testimony (§ 190.2, subd. (a)(10)) and one count of an ex-felon in possession of a firearm (§ 29800, subd. (a)(1)). The jury also found true that defendant personally and intentionally used a firearm, causing great bodily injury and death (§§ 12022.7, subd. (a), 12022.53, subd. (d)). On appeal, he contends (1) the trial court erred in admitting evidence of a prior crime to determine motive and (2) testimony that he was restrained at his preliminary hearing was prejudicial, or alternatively, his counsel was ineffective for failing to object to the testimony. In supplemental briefing, defendant further asks that his sentence be reversed and the matter remanded to permit the trial court to exercise its discretion as to whether to strike the firearm enhancement pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) section 2. The Attorney General agrees sections 12022.5 and 12022.53 apply retroactively and that the matter should be remanded.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm the judgment of conviction, but remand for the trial court to consider resentencing under sections 12022.53, subdivision (h) and 12022.5, subdivision (c).
BACKGROUND
2003 Grand Theft
On December 18, 2003, Alameda County Deputy Sheriff Renard Thompson was investigating a "call of a suspicious vehicle" in a parking lot in Castro Valley when he heard a dispatch that a car was "being stolen from RyNck Tires" directly across the street from where he was investigating. Defendant was the registered owner of the "suspicious vehicle," and his sister, who was sitting in the car alone, stated she was waiting for defendant who was shopping nearby.
By the time of trial, Deputy Thompson was deceased. His preliminary hearing testimony was read into the record.
While Thompson was investigating, a cell phone inside the suspicious vehicle rang, and he answered the call. It was from Sanjay Krishna Samy, who was working at the RyNck auto shop in Castro Valley. Samy asked "if I was going to come back and pay for the car that I just took." Thompson then identified himself and told Samy he would come over.
There was some confusion over Samy's exact name at trial. His wife identified him as Sanjay Kirshna Samy, however, the parties stipulated that the victim's name was Prisheen Sanjay Krishna. All of the parties refer to him as Samy and to avoid confusion we adopt the same moniker.
Samy told Thompson that earlier in the day a man named "Paul Downs" had brought in a car for repair work that cost $2,700. "Downs" had later called the tire shop to ask if the car was ready, Samy told him the car was ready for pick up. Samy told Thompson that "[a] few moments later, he heard the car starting up and he saw it drive off." Samy subsequently identified defendant as the man who had claimed he was "Paul Downs" from a photo lineup.
Samy later testified at defendant's parole revocation hearing, as defendant had been on parole at the time of the theft. Although defendant's parole was revoked, he was granted bail and released from custody on August 3, 2004. A preliminary hearing as to the theft was set for October 27.
The 2004 Murder of Samy
Samy was killed on October 26, 2004, the day before he was to testify against defendant. On that morning, Samy's wife, C.I., was awakened by a scream coming from in front of her home. She heard Samy scream " 'No' " and then "heard what sounded as a scuffle, steps, somebody saying in an angry voice . . . 'You motherfucker,' . . . and then loud pops that sounded like gunshots." C.I. tried calling Samy's cell phone and got no answer. Then she called 911, and started to go downstairs. She could see Samy on the ground through the windows in her house. When C.I. got outside, she saw Samy, who was not moving, and a "lot of blood around his head."
Three days after Samy was killed, Brentwood police officers made arrangements for defendant to meet with his parole officer, since defendant was a person of interest in Samy's murder. A search of defendant's pockets revealed two notes containing Samy's "personal identifying information." The first note had Samy's name, date of birth, height, weight, and driver's license number. The second note had directions to Samy's house as well as descriptions of his vehicles and license plate numbers.
After reading defendant his Miranda rights, Brentwood Police Lieutenant Tim Herbert and Detective Walter O'Grodnick questioned him regarding Samy's murder. The questioning did not lead to an arrest at that time. However, defendant served eight months on a parole violation.
Miranda v. Arizona (1966) 384 U.S. 436.
A little over 10 years after Samy was murdered, defendant was arrested and charged by information with one count of murder (§ 187, subd. (a), count 1) with the special circumstance that the victim was killed to prevent his testimony (§ 190.2, subd. (a)(10)), and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1), count 2). It was further alleged as to count 1 that defendant personally and intentionally discharged a firearm causing great bodily injury and death (§§ 12022.7, subd. (a), 12022.53, subd. (d)). Finally, it was alleged that defendant had three prior convictions: one was alleged as a strike (§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)), two were alleged as prison priors (§ 667.5, subd. (b)) with one as a serious felony (§ 667, subd. (a)(1)).
The crime was initially investigated by Brentwood police officers. The Alameda County District Attorney's Office became involved with the case in 2008 and conducted a further investigation with the assistance of the Alameda County Sheriff's Department.
Lieutenant Herbert, who had seized defendant's cell phone during his initial questioning at the 2004 meeting with his parole officer, testified at trial that defendant's cell phone records showed he had placed a call near a cell phone tower in Lafayette during the week before Samy's murder. Additionally, a 60-day review of defendant's cell phone records showed defendant had activated a tower in Brentwood only one time—on the day of Samy's murder.
Forensic handwriting expert Lloyd Cunningham testified that in his expert opinion, defendant was the author of both pieces of paper found in his possession containing Samy's personal identification information.
Alameda County Deputy Sheriff Lonala Kahoalii testified that during a "contraband search" of defendant's jail cell she found "suspicious paperwork," consisting of a "practice alphabet." The jury also heard from Alameda County Deputy Sheriff Robert Posedel, who was the courtroom deputy during defendant's preliminary hearing. He testified that on the first day of the hearing defendant requested that his right hand be freed from handcuffs so he could take notes and Posedel observed defendant writing with that hand. However, on the next day defendant requested his left hand be freed. Posedel had "joked with him and . . . asked him . . . 'You can write with both hands? You got it like that?' " Defendant responded, " 'Something like that.' " For the remainder of the hearing, defendant requested his left hand be uncuffed. Alameda County Detective Jason Hawks also testified that during the preliminary hearing he observed defendant writing with his left hand.
We discuss the additional evidence of defendant's prior grand theft from the RyNck store in connection with our discussion of his claim this evidence was improperly allowed.
The jury found defendant guilty as charged. The trial court sentenced him to life without the possibility of parole on count one, 25 years to life for the section 12022.53, subdivision (d) firearm enhancement to be served consecutively to count one, and two years on count two which the trial court stayed pursuant to section 654.
The two other firearm enhancements as to count one (§§ 12022.53, subd. (c), 12022.5, subds. (a) & (b)) were stayed pursuant to section 654.
DISCUSSION
Admission of 2000 Prior Theft from the RyNck Store
The trial court allowed evidence of a prior theft, three years before the 2003 theft, defendant committed from the same RyNck store. Defendant contends this evidence was inadmissible under Evidence Code section 1101 and, even if it was admissible, the trial court abused its discretion in allowing it under Evidence Code section 352.
The rules governing admissibility of evidence under Evidence Code section 1101 are well-settled. " ' " 'Evidence of the defendant's commission of a crime other than one for which the defendant is being tried is not admissible to show bad character or a predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.]' [Citation.] In cases in which the prosecution seeks to prove the defendant's identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility 'depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity.' " ' " (People v. Jones (2013) 57 Cal.4th 899, 930, citing People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 (Ewoldt).)
Ewoldt, supra, 7 Cal.4th 380, superseded on another ground as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.
"When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant." (People v. Daniels (1991) 52 Cal.3d 815, 856.)
" 'We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.' " (People v. Davis (2009) 46 Cal.4th 539, 602.)
The People moved in limine to introduce evidence of an August 2000 grand theft at the same RyNck store as relevant to both identity and motive. Defendant opposed, claiming the first offense was not relevant, and the probative value of the evidence was, in any case, outweighed by its prejudicial effect and would result in undue consumption of time.
At the hearing on the in limine motion, the trial court observed "the greatest degree of similarity" is required to admit prior criminal conduct for identity. After having read in the motion that in 2000 defendant had left a car for repairs and then driven away without paying for them, the trial court declared the 2000 grand theft and 2003 grand theft were "identical" and therefore admissible as to identity.
The prosecution maintained the first theft was also relevant to motive, reasoning that because defendant had been "maxed out" in connection with other crimes, in 2003 he "was facing eight years [in] state prison given the way that the case was charged." The court did not agree with the prosecutor's view, given the discretion courts have in sentencing. The court reiterated, however, that the 2000 and 2003 grand thefts were "identical," stating "it's one of the few times I've ever seen that many points of comparison that you could actually use it for the purpose of identity because that requires the most common points."
Defense counsel responded that identity would be "extremely relevant" if the trial involved another theft—but defendant was on trial for murder.
The court then stated the two thefts, taken together, could allow one to "draw the reasonable inference that he committed both of them" and the second theft "creates the motive for the [section] 187 which ties into the identity of who did the [section] 187. If he didn't do the [section] 487's, then there's no reason for him to do the [section] 187. So you can't separate the two from this. . . . By doing the first, it makes . . . a reasonable inference to the identity that he did the second. The fact that he did the second gives him motive slash identity as to who might have committed the murder." The court also stated "the second one would be available because it does show a motive for the—committing a [section] 187 and would help lead the inference for the intent to commit the [section] 187."
Accordingly, at trial the prosecution called G.N., who was the service manager at the RyNck store in August 2000. G.N. testified he had been called as a witness at a preliminary hearing in a different case involving a theft from the store that same month. He stated a Black man purporting to be "Damon Brown," had brought in a car for repairs costing $1,248. The following day, after the repair work was completed, "Brown" returned to the shop. G.N. met defendant outside the shop and told him " 'come on in and let's take care of the paperwork.' " However, defendant did not follow him and, instead, took the car without paying. Two days later, G.N. identified defendant as the man purporting to be "Brown" from a photo lineup. He also identified the car in a signed statement to the Alameda County Sheriff's Department. A search of the vehicle revealed "two paycheck stubs in the name of 'Larry Fuller.' " The prosecution also presented evidence defendant had been arrested and charged with grand theft. Ultimately, he was sentenced to an aggravated term of three years for violating parole in another matter, and the grand theft charge was dismissed.
G.N. did not recall most of the events he had previously testified to, and the prosecutor read from the preliminary hearing transcript.
After the close of evidence, during the drafting of jury instructions, the trial court revisited the issues of identity, intent and motive in connection with the Evidence Code section 1101 evidence. In a rather confusing exchange, defense counsel began by stating, "[I]t's a big leap to have two grand thefts to show that it shows an intent for someone to commit murder when they're three years apart, different people." The court responded, "That might be true. The key was the—the first theft was probative for identification of who did the second theft. The second theft was probative on the issue of motive. So maybe to take out the intent because the intent is separate. It's not probative of the intent to kill," rather it was "probative of the intent that's required for [the special circumstance of] killing of a witness." The court then stated, "I don't really care about taking out existence of the intent of a crime charged. That's probably not an accurate statement. I think it's probative on identity and motive because it's absolutely similar between the two thefts, but I think—I think there's some merit to the fact that it's not intent to kill for the express malice." The court then proposed "taking out of the first existence of the intent which is necessary for the crime charged."
Then, in a moment where the court said it was "thinking out loud," it pondered identity stating, "It's definitely motive. There's no question about that. Could you use two identical crimes that are not identical to the charged crime because normally [Evidence Code section] 1101(b) would be identical to the charged crime. Here it's not identical to the charged crime. It's identical to the crime that creates the motive." Finally, the court decided, "Let's take the identity out then, also. . . . [¶] . . . [¶] So let's just use the [Evidence Code section] 1101(b) for creating an—that ties him to the second grand theft which creates the motive because he was charged for that."
When the prosecutor asked if the court would reword the instructions, the court stated, "Well, the characteristic—if you take the second or third paragraph, it starts the characteristic plan, scheme, leave that in and as it tends to show the motive for the crime charged. I think that's clear because that ties the first grand theft to the second grand theft which gives you the motive. So I'm going to take out the identity part also."
Thus, before closing arguments, the jury was instructed that, "Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show a characteristic method, plan or scheme in the commission of the criminal acts involving RyNck Tire & Auto Center committed on August 3rd, the year 2000, similar to the plan—method, plan and scheme used in the commission of the criminal acts involving RyNck Tire & Auto Center committed on December 18th, 2003 which would further tend to show a motive for the commission of the crime charged."
The prosecutor then argued the jury could consider the evidence of the 2000 theft in deciding whether defendant perpetrated the 2003 theft involving Samy and could "also use it if it further tends to show a motive for the commission of this crime, this murder, the murder of Samy Sanjay."
Defendant contends the trial court erred in admitting evidence of the 2000 grand theft to show motive and the admission of the evidence whether for identity or motive, was cumulative and prejudicial to his defense and should have been excluded under Evidence Code section 352.
The Attorney General maintains evidence of the prior theft on motive was proper, citing People v. Heishman (1988) 45 Cal.3d 147 (Heishman), abrogated on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190, 1195. In Heishman, the defendant was convicted of murdering a woman who claimed defendant had raped her. (Heishman, at pp. 156-157.) The day before the preliminary hearing in the rape case, the woman was shot dead, and as a result, the rape case was dismissed. (Id. at p. 157.) During the murder trial, one of the principle witnesses, who had been involved in planning the murder, testified defendant had told her he had been " 'set up' " on the rape charge and the woman "would have to be killed" because he was "never go[ing] back to jail." (Id. at p. 159.) The prosecution subsequently introduced an abstract of judgment showing defendant had been convicted and imprisoned for a prior rape. (Id. at p. 167.) The jury was instructed the abstract was "received only 'to show corroboration of the testimony of the prosecution witness, a motive for the commission of the crime.' " (Ibid.)
On appeal, defendant challenged the evidence as both inadmissible under Evidence Code section 1101 and unduly prejudicial under Evidence Code section 352. (Heishman, supra, 45 Cal.3d. at p. 168.) The Supreme Court first pointed out the evidence of the prior rape was not admitted for improper propensity purposes because he was not, in the current case, charged with rape. "Here, defendant was not charged with rape or attempted rape and the prior was not admitted for the purpose of showing defendant had a propensity to commit rape but to show his motive for committing murder—to avoid having to return to prison." (Ibid.) The court also observed that like evidence had been allowed in other cases to demonstrate "fear[] [of] apprehension." (Id. at p. 169.) "Here, similarly, defendant's motive to kill Lugassy to prevent his being sent back to prison as a result of her testifying against him in the pending Lugassy rape charge, was central to the prosecution's case, and the evidence of defendant's extrajudicial statements of that motive made the record of the prior prison sentence significantly more probative than in [People v.] Alcala [(1984) 36 Cal.3d 604 (Alcala)]." (Heishman, at p. 169; see People v. Fuiava (2012) 53 Cal.4th 622, 668 ["prosecution's theory was that the defendant knew, because of his prior convictions and parole status, that it was illegal and a violation of his parole for him to possess firearms (and a separate violation of his parole to associate with Young Crowd members), and he shot at Deputies Blair and Lyons in order to avoid being apprehended and returned to prison"].) The court secondly concluded the trial court had understood and duly exercised its discretion under Evidence Code section 352. (Heishman, at p. 170.)
Alcala, supra, 36 Cal.3d 604, abrogated by statute on another ground as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911.
Defendant asserts Heishman is distinguishable because in that case (a) a witness testified defendant told her he had been " 'set up' " on the rape charge and he "would never go back to jail," (b) motive was "central to the prosecution's case" and (c) motive could be proved in no other way. (Heishman, supra, 45 Cal.3d at pp. 159, 169.) Defendant claims he made no statements "indicating his intent to kill to avoid return to prison," and the 2003 grand theft "sufficiently established" motive, making admission of the 2000 grand theft cumulative.
The Supreme Court's analysis in Heishman did not turn on the fact a witness testified to statements by the defendant. Rather, what the court said was that the abstract of judgment of defendant's prior rape conviction and prison sentence corroborated and added to the probative value of the witness's testimony (Heishman, supra, 45 Cal.3d at p. 169) and the fact the witness had so testified made the abstract "far less prejudicial" than it would have been had there been no other evidence of the defendant's prior conviction. (Id. at p. 170.) In short, the fact a witness testified to the defendant's own statements that he had served a prior prison sentence was pertinent to the court's Evidence Code section 352 discussion—which we discuss in subsequent paragraphs—not to the threshold question of whether the abstract was admissible to establish motive.
Defendant also relies on Alcala, supra, 36 Cal.3d at page 604. In Alcala, the defendant was charged with kidnapping and murdering a female child, and the trial court allowed evidence of defendant's prior sex crimes against three, female child victims. (Id. at pp. 604, 629-630.) The prosecution maintained the prior crimes were sufficiently similar with the charged crimes to allow the evidence to show identity. (Id. at p. 632.) The Supreme Court disagreed, pointing out "the alleged similarities break down under examination." (Ibid.) The court also rejected "any implication" the prior crimes were admissible to show defendant had a "motive" to not only kidnap but murder the child to eliminate her as a witness. (Id. at p. 634.) If the prior crimes were admissible merely for that reason, said the court, "one's criminal past could always be introduced against him when he was accused of premeditated murder in the course of the subsequent offense." (Id. at p. 635.) "The prejudicial effect of the prior-crimes revelations would vastly outweigh their slight and speculative probative value." (Ibid.) "[S]peculation that defendant was also worried about the implications of his past record is remote and cumulative." (Ibid.)
As the discussion in Acala reflects, that case did not involve charges that the defendant murdered the child to prevent her from testifying against him on kidnapping and/or attempted sex crime charges, and, thus, such a motive was not pivotal to the prosecutor's kidnaping/murder case. There was also no other evidence of such a motive, and the high court accordingly pointed out it was mere "speculation" that the prior crimes suggested such a motive. (Alcala, supra, 36 Cal.3d at p. 635.) That, however, was not the case in Heishman, which involved a special circumstance murder to prevent the victim's testimony in a rape prosecution. Accordingly, in Heishman, the defendant's motive for the killing, to avoid prosecution and thereby avoiding a return to prison, "was central to the prosecution's case," making the defendant's statements and the abstract of judgment "significantly more probative of motive" than in Acala. (Heishman, supra, 45 Cal.3d at p. 169) The instant case, like Heishman, also involves a special circumstance murder to prevent a witness from testifying, and accordingly, evidence bolstering the prosecution's claim that defendant's motive to avoid a second grand theft conviction and a return to prison was, as in Heishman, of discernable probative value.
Defendant further contends that even if evidence of the first grand theft was admissible as to identity or motive, the trial court nevertheless should have excluded the evidence under Evidence Code section 352 because it was cumulative of the evidence of the second grand theft. The trial court did not abuse its discretion in weighing the probative value and prejudicial effect of the evidence and allowing it. The evidence of the first grand theft was highly probative as to identity and corroborated Samy's photo lineup identification of defendant. It also had considerable probative value as to motive, allowing the inference defendant would have been particularly motivated to avoid a second prosecution for essentially the same offense and to avoid an additional prison sentence. Thus, the evidence was not cumulative. The evidence as to the first theft did not consume an undue amount of time. The jury was instructed as to the limited purposes for which it could consider the evidence. And neither the prosecutor, nor the defense, spent a disproportionate amount of time discussing the first offense in closing argument.
Accordingly, there was no abuse of discretion in allowing evidence of the first grand theft.
Testimony Mentioning Restraints
Defendant also contends the trial court should have excluded testimony that he was shackled during the preliminary hearing, asserting the testimony was irrelevant, highly prejudicial and violated his due process rights.
At the preliminary hearing, defendant asked that his handcuffs be removed so he could take notes. On the first day, he asked that his right hand be uncuffed. On the following days, he asked that his left be uncuffed.
At a subsequent pretrial hearing, the prosecution presented evidence defendant had made attempts to alter his handwriting, a point relevant to the writings found on defendant and to expert handwriting testimony.
This triggered a defense motion in limine asking the court to prohibit "prosecution witnesses from testifying regarding [defendant's] physical restraint at his preliminary hearing, or, in the alternative, providing a limiting instruction regarding such restraint directly after their testimony." In the motion, counsel offered a proposed instruction.
At a hearing on the motion, the court stated, "I'm just going to cut to the chase and say that CALJIC 1.04, as you modified it in your papers, will be the way that I would deal with that. I'm not going to parse and try to take apart the testimony of the deputies from—regarding the preliminary hearing. To eliminate the fact that your client was shackled because that, in fact, is part of the probative value of what he did and the fact that he changed hands. So I will give the instruction, as you modified it, at the time they testify, CALJIC 1.04." Defense counsel responded, "Okay."
Defense counsel also raised concern as to whether she would be called as a witness to the uncuffing. The prosecutor assured that would not be the case.
At trial, Alameda County Deputy Sheriff Poesdel testified as to defendant's different hands being uncuffed during the preliminary hearing. Defendant made no objection to the testimony.
Immediately after this testimony, the court instructed the jury: "The fact that physical restraints are placed on the defendant may not be considered by you for any purpose. They are not evidence of guilt and must not be considered by you of any evidence that he is more likely to be guilty than not guilty. In determining the issues of the case, disregard this matter entirely."
Following this instruction, a detective similarly testified that he observed defendant writing with his left hand during the preliminary hearing, but he made no mention of restraints. --------
Invited Error/Waiver
As the Attorney General points out, by offering the alternative of a limiting instruction and by agreeing to the trial court's proposed handling of the issue by giving the instruction, defendant invited the error about which he now complains and/or waived any complaint as to the trial court's handling of the reference to his being shackled at the preliminary hearing. (See People v. Wader (1993) 5 Cal.4th 610, 657-658 ["When a defense attorney makes a 'conscious, deliberate tactical choice' to forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was omitted in error. [Citations.] When defense counsel makes an equally conscious and deliberate tactical choice to request a particular instruction . . . there is no reason to apply a different rule."].)
Ineffective Assistance of Counsel
Anticipating that his challenges to the uncuffing testimony may not have been preserved for appeal, defendant advances an ineffective assistance of counsel (IAC) claim for failing to object.
The law governing IAC claims is well-settled. The federal and state Constitutions guarantee criminal defendants the right to adequate representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Vines (2011) 51 Cal.4th 830, 875, overruled on another ground as stated in People v. Hardy (2018) 5 Cal.5th 56, 104.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both "that counsel's performance was deficient," such that "counsel was not functioning as the 'counsel' [constitutionally] guaranteed," and "that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Centeno (2014) 60 Cal.4th 659, 674.) " 'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficent prejudice . . . that course should be followed.' [Citation.] A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
We need not address the first requirement here, as it is clear the asserted failure by counsel to object did not result in any prejudice. First, the trial court gave a limiting instruction on shackling immediately following the deputy's testimony. That instruction directly and explicitly told the jury it could not consider the fact defendant had been shackled as evidence of guilt, and we must presume the jury followed this instruction. (See People v. Doolin (2009) 45 Cal.4th 390, 442; People v. Cruz (2001) 93 Cal.App.4th 69, 74.) Second, the deputy's testimony referencing shackling was only a fraction of the evidence presented at trial, and there was extensive other evidence that supported defendant's convictions. This included all of the evidence that he committed the 2003 theft from the RyNck store, that Samy was scheduled to testify against him at the preliminary hearing the day after the murder, the notes containing Samy's personal identifying information found on defendant's person, the expert testimony of the handwriting expert, and the cell phone locale evidence that placed defendant within a 40-mile radius of Samy's neighborhood the day of the murder.
Firearm Enhancement
Prior to January 1, 2018, trial courts did not have authority to strike or dismiss a firearm enhancement under section 12022.53. (Former § 12022.53, subd. (h), added by Stats. 2010, ch. 711, § 5 and amended by Stats. 2017, ch. 682, § 2, eff Jan. 1, 2018.) Effective January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) amended subdivision (h) of section 12022.53 to add the following language: "(h) 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." (§ 12022.53, subd. (h); Sen. Bill No. 620 (2017-2018 Reg. Sess.) § 2.)
Citing In re Estrada (1965) 63 Cal.2d 740, defendant maintains the new statutory provision has retroactive effect. The Attorney General agrees. We do, as well. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) We will reverse and remand to permit the trial court to exercise its discretion on whether or not to strike the enhancement.
DISPOSITION
The judgment of conviction is affirmed. The matter, however, is remanded for the trial court to consider resentencing under sections 12022.53, subdivision (h) and 12022.5, subdivision (c).
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Dondero, J.