Opinion
C084296
05-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DUARTE MANUEL GONSALVES, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM043396, PCS00271)
A jury found defendant Duarte Manuel Gonsalves guilty of murdering Paul Bryant with a shotgun and of being a felon in possession of a firearm; defendant inflicted the mortal wound by shooting Bryant at close range in the neck and face. The jury also found several attached firearm enhancements true, and in a subsequent proceeding, the court found that defendant had a prior strike, a prior serious felony, and had served two prior prison terms. The court sentenced defendant to an indeterminate term of 55 years to life for the murder and firearm enhancement consecutive to an aggregate determinate term of 13 years for the felon in possession conviction, the serious felony enhancement, and the prison priors.
Several witnesses referred to defendant by his nickname of Danny.
On appeal, defendant contends: (1) the court erroneously permitted the prosecutor to introduce evidence that he confessed to being the shooter as rebuttal testimony rather than in the People's case-in-chief; (2) that the matter must be remanded to allow the trial court to exercise newly-granted discretion under recent legislative amendments on whether to strike the firearm enhancements found true by the jury; (3) that his six-year sentence on the felon in possession conviction must be stayed pursuant to Penal Code section 654; and (4) that he was denied his federal constitutional right to be present at all critical stages of trial when the court reporter read back testimony to the jury outside his presence and without a waiver of his right to be present. We affirm.
Further statutory references are to the Penal Code.
While the evidence showing defendant essentially confessed to shooting Bryant was improper rebuttal testimony, in light of other similar admissions and eyewitness testimony presented during the prosecutor's case-in-chief, we conclude the error was harmless. We also conclude that the recent legislative amendments giving trial courts discretion to strike firearm enhancements apply retroactively to defendant and we shall remand to the trial court to determine whether to exercise its discretion under the new law. Defendant was also properly sentenced for both the murder conviction and the felon in possession offense, and his constitutional rights were not violated when testimony was read back to the jury outside his presence because rereading testimony is not a critical stage of the proceedings under controlling precedent.
FACTUAL AND PROCEDURAL BACKGROUND
Bryant was shot and killed on the night of July 18, 2015, in front of a trailer owned by Shirley Lacey. Defendant had been visiting someone in a trailer located behind Lacey's.
At trial, the prosecutor presented the following evidence during his case-in-chief. On July 18, 2015, defendant and his cousin Carlos Carisa went to their friend Patrick's house in Oroville to get high. Patrick lived directly behind the trailer where Shirley Lacey lived on Lincoln Boulevard. Although Carlos and Lacey used to get along, Lacey was mad at him because he failed to pay for drugs she had given him; there was also a rumor circulating that Carlos had recently robbed Lacey's trailer.
Because Carlos Carisa and his wife Darla Carisa both testified during trial, for clarity we refer to Carlos and Darla by their first names.
Carlos had to park next to Lacey's trailer and walk past it in order to get to Patrick's house. According to Carlos, Lacey would send people out to fight him, but he would just walk on by.
While defendant and Carlos were visiting Patrick, Brandon Anderson and Paul Bryant were in Lacey's trailer. Anderson also lived in a trailer behind Lacey's. Anderson left to get something from his trailer, and when he returned a short time later he saw Bryant standing at the driver's side door of Carlos's van talking to Carlos. According to Carlos, Bryant was "talking crap." Bryant claimed he was a hitman and threatened to kill Carlos's family if he did not pay Lacey the money he owed her.
Carlos pushed Bryant away from the driver's side van door and got out of the van. Both men took fighting stances. Before any punches were thrown, however, defendant walked around the back of the van with a gun and yelled, "Homey, don't do it, don't do it." Bryant began backing away from Carlos, and then defendant shot Bryant in the neck with a shotgun. Bryant was transported to a hospital where he later died from excessive blood loss.
Anderson heard the gunshot and immediately turned around to see defendant running around the van with a shotgun in his hand. He heard Carlos yell, "What the fuck are you doing? Get the fuck out of here." Defendant tried to get in the van, but Carlos drove off; defendant fled on foot with the shotgun.
Defendant ran to nearby Elgin Street, where Carlos and some of his other relatives lived. Robert Shaw saw defendant emerge from a field that ran from Lincoln Boulevard where Bryant was shot to Elgin Street. He was hysterical. Defendant told Shaw either that he had just "gat somebody" or just "capped somebody." Shaw told him that he could not stay there and to keep moving along. Defendant then encountered Rita Haler and he asked her if she could take him to her house to hide him because he had "just whacked somebody." Haler refused.
Detective Jason Miller testified that a large open field was located next to where Bryant was shot. A person could easily travel by foot through the field to Elgin Street.
A day or two after the shooting, Carlos spoke with defendant. Defendant admitted that he shot Bryant because Bryant had threatened to kill Carlos's family. Defendant was eventually arrested on July 20, 2015.
Following the presentation of the above evidence, the People rested. Defendant called Lacey as his only witness. Lacey testified that she heard the gunshot and ran out of her trailer to see what had happened. She saw defendant trying to get into the van. Carlos handed something to defendant through the van window and told him to run. Although Lacey admitted that she did not witness the shooting and that she never saw anyone with a gun, she believed Carlos shot Bryant.
The prosecutor called three rebuttal witnesses. Two officers who interviewed Lacey immediately after the shooting testified that she never mentioned Carlos handing anything to anyone. She also surmised that the person with Carlos at the time of the shooting was Carlos's son.
The prosecutor next called Darla Carisa, Carlos's wife. Darla testified that defendant came to her house on Elgin Street the night of the shooting. While she was lying down, he whispered to her, "I just killed somebody." He left a few minutes later, and she did not know where he went. A week later, Darla visited defendant in jail. Their recorded visit was played for the jury. During the visit, defendant told Darla that Carlos did not shoot anybody. Carlos, defendant said, did not even know defendant had a gun. Defendant explained that he had put the gun underneath the seat when Carlos picked him up that day. After defendant saw Bryant look at him and reach for something, "everything went bad." Defendant thought it was more like a voluntary manslaughter case than a murder case.
During the defense's rebuttal, the parties stipulated that a sheriff's detective spoke with Darla on July 19 in an attempt to locate Carlos. She did not say anything to the detective about statements defendant made to her regarding the shooting.
For the murder conviction, the court sentenced defendant to 15 years to life, doubled to 30 years to life for the strike prior, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement, and 10 years for the section 12022.5 firearm enhancement, which it stayed under sections 1170.1, subdivision (f) and section 12022.53, subdivision (f). For the felon in possession offense, the court sentenced defendant to an aggregate determinate term of 13 years, consisting of a consecutive upper term of three years, doubled to six years for the strike prior, plus five years for the prior serious felony enhancement, and one year each for the two prior prison term enhancements. Defendant timely appealed.
When defendant murdered Bryant, he was on post release community supervision. The court sentenced him to a concurrent 180-day sentence for violating the terms of his release.
DISCUSSION
I
Admissibility Of Rebuttal Testimony
Defendant contends the court erred when it permitted the prosecutor to call Darla as a witness during rebuttal to testify that defendant told her that Carlos was not the shooter. He argues that the evidence, which amounted to a confession that he was the actual shooter, should have been presented in the prosecutor's case-in-chief. The evidence, in his view, was highly prejudicial because it allowed the prosecutor to unfairly highlight the evidence for the jury near the end of trial. We agree Darla's testimony was improper rebuttal evidence, but find the error harmless given multiple eyewitness accounts identifying defendant as the shooter as well as the defendant's own statements to several witnesses that he had shot someone shortly after Bryant was killed.
Section 1093 authorizes parties to present rebuttal testimony. (§ 1093, subd. (d).) The statute provides that after the defendant has offered his evidence, the prosecution may then offer "rebutting testimony only, unless the court, for good reason, in furtherance of justice," permits the prosecutor to offer evidence upon his original case. (Id., § 1093, subd. (c), (d).) "The purpose of the restriction in that section is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent's case is suddenly confronted at the end of trial with an additional piece of crucial evidence." (People v. Carter (1957) 48 Cal.2d 737, 753.)
Proper rebuttal evidence "does not include a material part of the case in the prosecution's possession that tends to establish the defendant's commission of the crime." (People v. Carter, supra, 48 Cal.2d at p. 753.) Instead, rebuttal evidence "is restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt." (Id. at pp. 753-754.)
In this case, the prosecutor considered calling Darla as a witness in his case-in-chief, but ultimately decided against it. After defendant's witness, Lacey, testified that she believed Carlos was the shooter, the prosecutor called Darla in rebuttal. Darla testified that on the night of the shooting, defendant came to her house and whispered in her ear that he had either "just shot" or "just killed somebody." During a subsequent recorded jail visit, defendant told Darla that Carlos did not shoot anybody and that he did not even know defendant had a gun.
Darla's testimony was crucial evidence tending to show that defendant and not Carlos shot Bryant. That fact was central to the criminal prosecution. The evidence, then, should have been put in as part of the prosecution's case-in-chief. (People v. Carter, supra, 48 Cal.2d at pp. 753-754 [where the defendant testified that he had not been present at the murder scene, evidence showing he had been present was improper rebuttal since proof of his presence was an essential part of the prosecution's case-in-chief].)
Although defendant's statements to Darla essentially amounted to a confession that he had shot Bryant, we do not find its erroneous admission as rebuttal testimony to be reversible error. (People v. Daniels (1991) 52 Cal.3d 815, 860 [reversal required based on erroneous admission of rebuttal evidence only if it is reasonably probable that the outcome would have been different absent the error]; People v. Watson (1956) 46 Cal.2d 818, 836.) The prosecution's case-in-chief included evidence that defendant had made similar admissions to Shaw, Haler, and Carlos shortly after the shooting. Carlos also testified to seeing defendant shoot Bryant. And Anderson testified to seeing defendant with a shotgun in his hand immediately after hearing the shot fired.
Lacey, moreover, admitted that she did not see the shooting occur and that she did not see anyone with a weapon. Other evidence also showed that Lacey was arguably biased against Carlos because she believed he had robbed her and because he owed her money for drugs for which he never paid.
In light of this evidence, we do not think it reasonably probable that absent the testimony of Darla, the jury would have reached a verdict more favorable to defendant.
II
Firearm Enhancements
Defendant contends recent legislative amendments require remand for the court to consider whether to exercise newly-granted discretion to strike one or both of his firearm enhancements. While the People concede the legislation applies retroactively to defendant, they argue remand is unnecessary because the record shows the trial court would not have exercised its discretion to strike the firearm enhancements to lessen defendant's sentence.
As we have noted, defendant's sentence in this case includes a consecutive 25-year-to-life sentence for the section 12022.53 enhancement for personally discharging a firearm during the murder and a 10-year term for the section 12022.5 enhancement for personally using a firearm, which the court stayed pursuant to sections 1170.1, subdivision (f) and 12022.53, subdivision (f). At the time of his sentencing, the trial court had no power to strike the firearm enhancements or impose a sentence other than 25 years to life. Under recent amendments to section 12022.53 and section 12022.5, however, which became effective January 1, 2018, trial courts have the power "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] 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), 12022.5, subd. (c).)
We agree the statutory amendments apply retroactively to defendant. Under Estrada, "when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature." (People v. Francis (1969) 71 Cal.2d 66, 75-76.) As the Supreme Court stated in Estrada, "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (In re Estrada (1965) 63 Cal.2d 740, 745.)
Although defendant has a long criminal history, we believe he should have an opportunity to argue to the trial court that it should exercise its informed discretion to strike an enhancement, and therefore, remand for this purpose.
III
Penal Code Section 654Defendant contends that his sentence for being a felon in possession of a firearm must be stayed because he possessed the gun to carry out the killing. According to him, the act of possessing the firearm is indivisible from the murder committed using the firearm and cannot be separately punished under section 654. We disagree and find the record contains substantial evidence that defendant harbored two separate intents to possess the firearm and commit the murder, both of which are individually punishable.
Section 654, subdivision (a) provides: "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. . . ." "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331.) "However, if the defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones I).) In determining whether section 654 applies, the trial court exercises its discretion, and its findings will not be reversed on appeal if there is any substantial evidence to support them. (Ibid.)
Correa disapproved of applying section 654 to multiple punishment for multiple violations of the same provision of law, concluding Neal's footnote to the contrary (Neal v. State of California, supra, 55 Cal.2d at p. 18, fn. 1) was dictum (People v. Correa, supra, 54 Cal.4th at p. 344), but that this "new rule" applied prospectively only (id. at pp. 344-345).
Section 29800, subdivision (a)(1) forbids a person convicted of a felony from possessing a firearm. Whether a violation of this statute " ' "constitutes a divisible transaction from the offense in which [a defendant] employs the weapon depends upon the facts and evidence of each individual case." ' " (Jones I, supra, 103 Cal.App.4th at p. 1143 [discussing former § 12021, the predecessor statute to § 29800, subd. (a)(1) (Stats. 2010, Ch. 711, § 6)].)
Where substantial evidence shows a felon possessed a firearm prior to committing a separate crime using that firearm, section 654 has been held not to bar punishments for both the felon in possession conviction and the primary crime of which the defendant is convicted. In Jones I, for example, the court held the defendant was properly punished for being a felon in possession of a firearm and for shooting at an inhabited dwelling where the only reasonable inference from the evidence was that the defendant possessed the gun in a car prior to shooting at the victim's house. (Jones I, supra, 103 Cal.App.4th at pp. 1142-1143, 1147-1148.) The court reasoned that "when an ex-felon commits a crime using a firearm, and arrives at the crime scene already in possession of the firearm, it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime." (Id. at p. 1141; see also People v. Jones (2012) 54 Cal.4th 350, 358, fn. 3 (Jones II) [the court does "not intend to cast doubt on" Jones I and the cases discussed therein].)
In People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413, the court held that the defendant could be punished for being a felon in possession of a firearm and for two robberies where his possession of the gun "continued before, during and after [the robberies]." In that case, the defendant robbed a victim with a gun, committed a second robbery with the gun an hour and one-half later, and was arrested one-half hour later while still in possession of the gun. (Id. at pp. 1404-1405, 1413.)
By contrast, section 654 has been held to bar multiple punishments where the evidence shows a felon fortuitously came into possession of a firearm when committing a separate crime. In People v. Bradford (1976) 17 Cal.3d 8, 22, the Supreme Court held section 654 prohibited separate punishments for assault with a deadly weapon upon a peace officer and possession of a firearm by a felon where the defendant wrestled away the officer's gun and shot at the officer after defendant was stopped for speeding. The defendant's possession of the officer's revolver was not " ' antecedent and separate' " from his use of the gun in assaulting the officer. (Bradford, at pp. 13, 22.) In People v. Venegas (1970) 10 Cal.App.3d 814, 817-821, the court held section 654 barred multiple punishments for assault with a deadly weapon and felon in possession of a firearm convictions where the evidence suggested the defendant obtained the gun during a struggle in a bar moments before the shooting occurred.
In this case, the record shows defendant committed two separate acts, each punishable under section 654: arming himself with a firearm prior to the shooting and later killing Bryant. Unlike in Bradford and Venegas, where there was no evidence the defendants possessed the firearms before committing other crimes, here the record shows defendant possessed the shotgun before he shot Bryant. No evidence, moreover, showed that defendant fortuitously came into possession of the firearm right before shooting Bryant.
This case, then, is akin to Jones I where section 654 did not bar punishment for both crimes. (Jones I, supra, 103 Cal.App.4th at p. 1145 ["section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm"].) " 'Commission of a crime under [section 29800, subdivision (a)(1)] is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.' " (Jones I, at p. 1146.)
Defendant's reliance on People v. Cruz (1978) 83 Cal.App.3d 308 is misplaced. There, the court found the prosecution failed to prove that the defendant's possession of a handgun was " 'antecedent and separate' " from his use in the assaults on the victims, a point the People impliedly conceded on appeal. (Id. at p. 333.) The defendant in Cruz left a bar after he was not allowed inside and returned a few minutes later with a gun that he used to shoot and wound three victims. (Id. at pp. 313-314.) There was no evidence in Cruz that the defendant possessed the gun before being rejected entrance at the bar. Here, by contrast, the evidence showed defendant put the shotgun in Carlos's van before they drove to Patrick's trailer. Carlos did not know defendant had the gun. Defendant did not know Bryant and had never had any dealings with him. Bryant just happened to be at Lacey's trailer when Carlos and defendant arrived to visit Patrick. From this evidence, the court could reasonably conclude that defendant's possession of the shotgun was " 'antecedent and separate' " from his use of the firearm to kill Bryant after Bryant and Carlos got into an argument.
Finally, we note that a violation of section 29800, subdivision (a)(1) differs from other weapons charges. (People v. Ratcliff, supra, 223 Cal.App.3d at pp. 1409-1410 [discussing former § 12021].) Nonfelony can be charged with other firearms violations but not with a violation of section 29800. Thus, section 29800 raises unique policy considerations not present with other firearms violations. (Jones I, supra, 103 Cal.App.4th at p. 1145.) "The Legislature clearly intended, in enacting section 12021 [now section 29800], to minimize the danger to public safety arising from free access to firearms, a danger presumed to be greater when the person possessing the concealable firearm is an ex-felon." (Ibid.; Jones II, supra, 54 Cal.4th at 358, fn. 3 [acknowledging that the Supreme Court did not intend to cast doubt on Jones I].)
Punishing defendant for possessing the firearm as a felon and for later killing Bryant was commensurate with his culpability even if the offenses occurred relatively close in time. Defendant was properly sentenced for both crimes.
IV
Right To Be Present At Critical Stages Of Trial Proceedings
Defendant claims he was denied his federal constitutional right to be present at all critical stages of trial when testimony was read back to the jury outside his presence and without a waiver of his right to be present during the read back. During deliberations, the jury sent the court a note asking about the testimony of Anderson and Lacey. The court interpreted the jury's inquiry as a request for a readback, and asked whether "counsel stipulate once our court reporter is ready she can go into the jury room and read the testimony in the jury room?" As frequently happens, defense counsel and the prosecutor so stipulated, and the court reporter read back the testimony in the jury room outside defendant's presence.
"A criminal defendant, broadly stated, has a right to be personally present at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment[,] [and] the due process clause of the Fourteenth Amendment itself." (People v. Awilda (2000) 22 Cal.4th 690, 741.) "Under the Sixth Amendment's confrontation clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless his appearance is necessary to prevent 'interference with [his] opportunity for effective cross examination.' " (Ibid.; Kentucky v. Stinker (1987) 482 U.S. 730, 744-745, fn. 17 [96 L.Ed.2d 631, 646-647, fn. 17].) "Similarly, under the Fourteenth Amendment's due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a 'stage . . . that is critical to [the] outcome' and 'his presence would contribute to the fairness of the procedure.' " (Awilda, at p. 742; Kentucky, at p. 745 ; Snyder v. Massachusetts (1934) 291 U.S. 97, 105-106 [78 L. Ed. 674, 678] [a criminal defendant has a right to be personally present "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge"], overruled in part by Malloy v. Hogan (1964) 378 U.S. 1 .)
Our Supreme Court has repeatedly held that "the rereading of testimony is not a critical stage of the proceedings." (People v. Cox (2003) 30 Cal.4th 916, 963; People v. Ayala (2000) 23 Cal.4th 225, 288 ["We have repeatedly rejected the [constitutional] claims [the] defendant raises here. The rereading of testimony is not a critical stage of the proceedings"].)
Defendant concedes that the California Supreme Court has rejected arguments similar to the one he raises here. He also acknowledges that we are bound to follow decisions of the California Supreme Court that contradict his argument, but raises the issue nonetheless to preserve it for a potential later appeal.
DISPOSITION
The matter is remanded to the trial court to consider whether to strike defendant's firearm enhancements pursuant to sections 12022.5 and 12022.53. The judgment is otherwise affirmed.
/s/_________
Robie, Acting P. J. I concur: /s/_________
Duarte, J. MURRAY, J., Concurring.
I concur in the result reached by the majority concerning the issue pertaining to Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620), effective January 1, 2018, and fully concur in all other respects. I write separately to explain my reasoning on why we must remand here. I disagree with the majority opinion to the extent it implies that remand is required because the trial court was not informed of its discretion to strike the firearm enhancements, and, now that such discretion is authorized, remand is required to allow the trial court to "exercise its informed discretion." (Maj. opn., ante, p. 9.)
As our high court has noted, " '[d]efendants 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.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391, italics added.)
The People urge us to deny remand for the court to consider exercising its newly authorized discretion under the amendments to Penal Code sections 12022.5, subdivision (c), and 12022.53, subdivision (h). Relying on the Court of Appeal decision in People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez), the People argue that the trial court "would not have exercised its discretion to lessen the sentence by striking any of the firearm enhancements" because it imposed the upper terms on count 2, felon in possession of a firearm, and the section 12022.5 firearm enhancement. Based on this, the People argue there is no "reasonable probability" that the trial court would strike the firearm enhancements and no purpose would be served by remand.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses. --------
In Gutierrez, the Court of Appeal considered whether it should remand to allow the trial court to decide whether it would dismiss a strike conviction under section 1385 in a second-strike case following our high court's decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (Gutierrez, supra, 48 Cal.App.4th at p. 1895.) The Gutierrez court concluded that, under the circumstances of the case, "no purpose would be served in remanding for reconsideration." (Ibid.) In reaching this conclusion, the Gutierrez court noted that the trial court had done the following at sentencing: expressly "indicated that it would not, in any event, have exercised its discretion to lessen the sentence"; "stated that imposing the maximum sentence was appropriate"; and imposed an upper term sentence on the base term and two discretionary one-year enhancements, which was not required under the three strikes law. (Ibid., italics added.) I also note that, in declining to strike the discretionary sentences for the one-year enhancements, the trial court in Gutierrez expressly stated: " 'there really isn't any good cause to strike it. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible.' " (Ibid., italics added.)
Given the circumstances in Gutierrez, I am of the view that it suggests a fairly narrow exception to granting an SB 620 remand. Something more than citing California Rules of Court aggravating circumstances to justify imposition of the upper terms on a charged offense and determinate-term firearm enhancement is required to demonstrate that remand for the trial court to consider whether to exercise its discretion to strike a firearm allegation carrying a 25-years-to-life term would serve no purpose. This is particularly true when, as here, the trial court has the option of imposing sentence on a determinate-term firearm enhancement and thus the firearm use would not go unpunished. The trial court here said nothing that approximates the trial court's remarks in Gutierrez, or that could be interpreted as implying that, even if it had discretion to strike the indeterminate-term enhancement allegation, it would not have done so. Nor did the trial court here expressly remark about the appropriateness of the sentence it imposed or make any statement from which we could infer it desired to keep defendant off the streets as long as possible. (See People v. Chavez (Apr. 20, 2018, D069533) ___ Cal.App.5th ___ [2018 Cal.App. Lexis 358, *4] [concluding that remand was appropriate after noting the fact that the record did not contain any statement by the trial court indicating it would have imposed the indeterminate term enhancement even if it had the discretion to strike or dismiss it or a statement by the trial court indicating that the defendant should be kept off the street as long as possible].) Furthermore, no mitigation appears to have been offered in this case and thus the court did not expressly reject or find inconsequential mitigation that might be cited in urging the court to strike the indeterminate-term firearm enhancement. Nor did the trial court expressly find that there are no mitigating circumstances.
As the majority notes, defendant has a long criminal history. (Maj. opn., ante, opn. p. 9.) I also note the prosecutor informed the trial court at sentencing about evidence of defendant's creation and possession of weapons in the jail and his intent to stab a correctional officer. It may very well be that the trial court will decline to exercise its discretion. However, unlike in Gutierrez, where it was clear the trial court would not have dismissed the strike resulting in double punishment, the record here does not clearly indicate the trial court would have exercised its discretion to deny striking the 25-years-to-life firearm enhancement. Thus, on this record, we cannot say that remand would serve no useful purpose.
/s/_________
MURRAY, J.