Opinion
F078191
06-28-2021
THE PEOPLE, Plaintiff and Respondent, v. HALIKI GREEN, JR., Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis Martinez, Jennifer Oleksa, Louis M. Vasquez, Amanda D. Cary and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. MF012020B. John R. Brownlee, Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis Martinez, Jennifer Oleksa, Louis M. Vasquez, Amanda D. Cary and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Defendant Haliki Green, Jr. was charged with six criminal counts related to a sexual assault: rape in concert (§§ 261, subd. (a)(2), 264.1, subd. (a); count 1); rape (§ 261, subd. (a)(2); count 2); sexual penetration by force or violence (§ 289, subd. (a)(1); count 3); assault by means likely to cause great bodily injury (GBI) (§ 245, subd. (a)(4); count 4); felony making of criminal threats (§ 422; count 5); and felony false imprisonment (§§ 236, 237; count 6). As to counts 1 through 3, it was alleged defendant personally inflicted GBI on the victim (§ 667.61, subd. (d)(6)), that defendant engaged in the tying or binding of the victim (§ 667.61, subd. (e)(5)), and that defendant committed a rape in concert and in the commission of that offense a person tied or bound the victim (§ 667.61, subd. (e)(7)). As to counts 4 through 6, it was alleged defendant personally inflicted GBI on the victim (§ 12022.7, subd. (a)). The information further alleged defendant had suffered a prior conviction for a serious or violent felony within the meaning of the “Three Strikes” law (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)), and that this prior conviction was also a serious prior felony (§ 667, subd. (a)). Finally, the information alleged defendant had suffered six prior prison terms within the meaning of section 667.5, subdivision (b) (section 667.5(b) or § 667.5(b)).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury convicted defendant of counts 1 through 4 and count 6, but it was unable to reach a verdict on count 5; the court declared a mistrial on that count and subsequently dismissed it. All special allegations were found true and defendant admitted the prior felony conviction and prior prison terms.
On count 1, for rape in concert, the court imposed a 25 years to life term (§ 667.61, subd. (e)), doubled for the strike prior (§ 667, subd. (e)(1)), for a total of 50 years to life. The sentence was enhanced by an additional five-year term for the prior serious felony, and four years for four admitted prison prior enhancements alleged under section 667.5(b). On count 2, the court imposed the same sentence as count 1, but stayed its execution pursuant to section 654. On count 3, the court imposed the same sentence as for count 1, and ordered that it be served consecutively to count 1. On count 4, the court selected the upper term of four years, doubled for the strike prior for a total of eight years, plus three years for the GBI enhancement (§§ 245, subd. (a)(4), 667, subd. (e)(1), 12022.7, subd. (a)); the sentence was stayed under section 654. On count 6, the court imposed the upper term of three years, doubled for the prior strike to six years, and enhanced by three years for the GBI enhancement (§§ 18, 667, subd. (e)(1), 12022.7, subd. (a)); this sentence was also stayed under section 654. The aggregate term imposed was two consecutive indeterminate terms of 50 years to life (counts 1 & 3), plus a determinate term of 18 years for the prior serious felony and prior prison term enhancements.
There were six admitted prior prison term enhancements under section 667.5(b), but the court imposed only four because one arose from the same term of imprisonment as the prior serious felony under section 667, subdivision (a), and one was based on a single term of imprisonment in two cases.
On appeal, defendant claims his trial counsel rendered ineffective assistance because he failed to interview or call a material witness to testify, and he failed to engage an expert to testify. Defendant also argues the prior prison term enhancements must be stricken under Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), that the case should be remanded for the trial court to consider exercising its new discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393 or Sen. Bill 1393) to dismiss or strike the prior serious felony enhancement, and the fees and fines imposed should be vacated or stayed pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We conclude the record does not demonstrate trial counsel's performance was prejudicially deficient. The prior prison term enhancements shall be stricken under Senate Bill 136, and the case shall be remanded for resentencing so the court may consider exercising its discretion to strike or dismiss the prior serious felony enhancement pursuant to the change in law enacted under Senate Bill 1393. Due to the need for resentencing, defendant's Dueñas claim is moot and we do not reach it.
FACTUAL SUMMARY
On March 4, 2016, Jane Doe came home from work to the house she shared with her husband, R.H. The couple had been having relationship issues, partly due to R.H's drug use. They had been separated, but Doe had allowed R.H. to return to the house two weeks before.
The husband's name has been redacted because he and the victim shared a last name.
I. The Attack
Doe saw R.H.'s motorcycle parked in the driveway. The house was dark when she entered, and she smelled cigarette smoke-which was unusual because neither she nor R.H. smoked cigarettes. As she walked into the bedroom, Doe was struck by someone to her left; when she turned in that direction, she was stuck from the right side. She saw R.H.'s face and could perceive a second assailant who was Black and later identified as defendant.
She was pushed face down onto the bed, and R.H. grabbed her arms. She begged him to stop, but then realized R.H. was in on the attack. So, she started begging the other man (defendant) to stop and told him that if R.H. had said that she wanted this, he was lying; but the attack continued and defendant told her to “‘[s]hut the fuck up.'”
Defendant grabbed her hands and held them behind her back, and R.H. put his hand over her mouth. Defendant called R.H. “‘Jerry'” and said, “‘Jerry, tie her hands up.'” R.H. tied Doe's hands with something that felt like a bandana. She continued to struggle, and they put a gag in her mouth because she would not be quiet. Defendant told R.H. to help bring her to the side of the bed. Doe fought “with everything [she] had, ” but she was unsuccessful in getting loose.
They dragged her to the left side of the bed, and she ended up on the floor. She had been struggling so much she felt like she was going to pass out. Defendant told her to stop fighting him. She told him she was not fighting him, she was trying to get her jacket off because she was too hot and she thought she was going to pass out; he yanked off her jacket and twisted her around in a way that she thought he broke her ribs. She told defendant he was hurting her and that he was going to break her arm; he responded, “‘Shut up. I'm going to break your fucking arm.'” She kept repeating she could not breathe and calling out to R.H., but he did nothing. Defendant told her he would show her what it was like not to breathe, and he put his hand over her mouth and plugged her nose to the point she went limp and urinated on herself.
The men lifted her to the bed on her back. R.H. was on her left, holding her down. Defendant got between her legs and ripped her shirt open. She kept telling them they were hurting her. Defendant said, “‘I'm not here to hurt you.'” He then licked her face and cheek and took all her clothes off from the waist down. R.H. ended up behind her head with his knees on her arms to hold her down.
She was trying to kick defendant, despite the pain in her ribs. Defendant placed fingers in her vagina twice. As defendant was touching her, she was begging R.H. to stop it, telling him she had been thinking about him that day and about working on their relationship; he leaned down and asked her, “‘Don't you think it's a little too late for that?'” He also told her she needed to think about the safety of her children and grandchildren.
R.H. took off his shirt and covered Doe's face with it. R.H. whispered something to defendant, although she could not hear what was said. She heard defendant say, “‘Okay, '” and then he held her arms down while R.H. moved off her arms to turn on a light. R.H. came back and resumed his position over Doe with his knees holding down her arms. At that point, defendant put his erect penis inside her vagina. Doe continued to cry out that her ribs were hurting her, and they rolled her to her side. Defendant inserted his penis in her vagina again while R.H. held her down. All of the sudden defendant walked out of the bedroom and R.H. got off the bed. He grabbed Doe's arms and pulled her to a sitting position on the edge of the bed.
Doe's hair was twisted up in the T-shirt R.H. had put over her face, and she felt something on her neck. R.H. pushed her hand down and took the T-shirt out of her hair; it was his robe belt that had been wrapped around her neck. She asked R.H. what the other man was still doing there, and R.H. told her, “‘He's waiting for me to go tell him to come and finish it or leave.'” She begged R.H. to have defendant leave. She also asked if she could get dressed, and R.H. agreed but told her to take a shower, that they would talk while they retrieved her car-this was when Doe was informed R.H. was giving defendant Doe's car to drive.
R.H. ushered her to the bathroom, and Doe pretended to take a shower; she wanted to preserve any evidence so that the men could be prosecuted. She then told R.H. she needed medical care. He did not want to call for help, but Doe promised to lie and tell them she fell and hit her ribs. He eventually assented to calling for help, and Doe placed the call to 911. When she made the call, R.H. told her that defendant had left.
When a responding officer stepped into Doe's house, he asked whether someone had been hurt from a fall. Doe responded, “‘Hell, no.… Him and another guy held me down and they raped me.'” An officer took R.H. outside while another spoke with Doe-R.H. was arrested. Doe sat down on the front porch and “made [the officers] hear everything” that went on and where they could locate evidence of the crime, such as her clothing in the bedroom. Doe then got in the ambulance and was admitted to the hospital, where a specific examination was performed to collect evidence of sexual assault. The nurse recorded multiple bruises on Doe's face, chin, jawline, wrists, hand, knees and clavicle. The bruising on her hand and wrists was consistent with the binding Doe reported occurred during the attack. She had injuries consistent with restricted breathing-she had redness in her eyes and some broken blood vessels. Doe reported to the nurse she had been held down by R.H. while another man penetrated her with both his fingers and his penis. Doe's injuries were consistent with rape-she had bruising at the base of her hymen; bruises and a laceration around her genitalia; and abrasions, blood, and bruising on her cervix and vaginal walls. Doe remained in the hospital for three days.
II. Police Investigation
Doe's car, which had been given to defendant by R.H., was found at a motel. T.M. had been visiting her sister at that hotel when a man, later identified as defendant, approached her and asked for a ride in exchange for $30 and a tank of gas. She agreed and was told to follow a White man she did not recognize, later identified as R.H., on his motorcycle. They went to a gas station; T.M. pumped the gas and, after the men paid for it, they went behind T.M.'s truck to have a conversation. T.M. then followed the man on the motorcycle to Doe's house and dropped off defendant. T.M. ran into defendant the next day at the motel when he asked her to help “jump” Doe's car.
Officer Jared McCombs had responded to Doe's 911 call. When he entered the house and asked about who was injured, Doe told him that R.H. and a Black man had raped her. McCombs requested additional units, separated Doe from R.H. and questioned her about what happened. She was crying and visibly shaking. Other officers responded, and R.H. was taken into custody. Officers collected a red bandana, a belt for a robe, Doe's underwear, and Doe's clothing from the bathroom. On March 8, 2016, after searching for video surveillance of the suspects involved, McCombs obtained surveillance from the gas station where T.M.'s vehicle had stopped with defendant and R.H.
Meanwhile, defendant was arrested on March 7, 2016. Sergeant William Funderburk was assigned to work on the investigation; he responded to Bakersfield to interview defendant and collected a DNA sample from him via a buccal swab. The interview with defendant was recorded and played for the jury. Funderburk, along with Officer Adams, lied to defendant during the interview by telling him that R.H. told them he had met defendant in Bakersfield, that he did not know defendant very well, and had brought him to Tehachapi to hang out. The officers told defendant that R.H. said defendant had lost control and did something he should not have done-R.H. tried to fight him off to protect somebody, and defendant stole something to get back to where he was. The officers also told defendant that expedited DNA evidence from the scene confirmed it was defendant that R.H. had brought home. Defendant said he never met that “dude” a day in his life; that guy was “dealing with” the mother of defendant's child, T.D., who is a prostitute. Defendant had been over at T.D.'s motel room, and she said she had been “dealing” with this “dude” who wanted someone to “[f]uck” his wife. On the day of the rape, R.H was at T.D.'s room at the motel, and that was when R.H. told defendant he needed to talk to him. T.D. left the room, and R.H. asked him to “[b]e with [his] wife.”
Defendant, who was “fueled by greed” and needed the $200 R.H. was offering because he was homeless, told the officers he listened while R.H. told him when his wife usually ended her work day and how R.H. wanted it to be a surprise. R.H. reassured defendant that his wife knew about it and was “cool with it”-it would be like “role playing.” Officer Adams responded, “That is weird man.” And defendant responded, “I knew that shit was too fucking (unintelligible).” Defendant then admitted that “when the time came for her to come home and shit, you know, we were in-we were in the room waiting for her.”
Defendant had heard this was the type of thing R.H. was into, but when he was in the situation, “it's kind [of] you know, I don't really-I'm not really like … sure about it but once again … I need that money. [⁋] … [⁋] Because she didn't know. Or he said that she didn't know-it would be a surprise to her you know what I'm saying?” After he described R.H. grabbing Doe and her struggle, defendant said, “And I told him man like hey man, hey, hey man, I'm not cool with this shit. Like you know, like I'm not cool with this shit man. You know what I'm saying? She should be able to tell you that, (unintelligible) I said that numerous and numerous time[s]. Like you know during the process of-of whatever. But I (unintelligible).… You know and I'm not-I don't know where-I don't know if this is this guy's wife. Got no-I mean I don't-I don't really know but he's saying it's all an-it's all an act so. [⁋] … [⁋] So I'm going along with it. [⁋] … [⁋] But it's un-uneasy you know what I'm saying? [⁋] … [⁋] So I keep telling him man, I'm-no man, I'm not cool with this man. That's what-that's my exact-I'm not cool with this man. I'm not cool with this man. You know what I'm saying? [⁋] … [⁋] So he like man, no, no, no, he whispered-he whispered to me like man, it's good don't worry about it. It's okay. All right, so you know what I'm saying?”
Defendant could not describe Doe because the lights had been off. After R.H. told Doe something defendant could not hear, she “kind of calmed down a little bit.” But then she started struggling again. Defendant said R.H. started pulling down Doe's pants, and defendant explained his mental state: “I was like, um, I'm like man you sure about this man? I'm not cool with this shit just you know whatever because the lady like-she like, um, I don't know she's not … comfortable.” Defendant said he left the room and smoked a Newport cigarette in a different room. R.H. came out of the bedroom and told defendant not to worry about it and that after he talked to Doe for a few minutes, R.H. would give him a ride back. R.H. paid defendant and told him to take the car, and R.H. would get the car the next day.
Defendant denied he had sex with Doe, but when the officers falsely told him they had his DNA, defendant said he had started to, but his penis was not erect and so he tried to fake it. He admitted he may have penetrated Doe's vagina with his penis just once for 15 or 20 seconds. He denied inserting his fingers into Doe's vagina, and said he was just “going through the motions” so R.H would think he was having sex with her. He admitted he got to a point in the encounter when defendant “was 100 percent sure [that] … this is his program not her program right now.” Defendant explained R.H. used a bathrobe “little thing” to tie Doe's hands up, that he used a red bandana to blindfold her, but denied that he saw R.H. strangle her with anything.
Defendant explained that “after time it started not feeling right.… This ain't going like how it was supposed to go man.… I got to the point where you know, it was uncomfortable you know what I'm saying?” The following exchange occurred between Officer Adams and defendant:
“[Officer Adams]: I'm just-try to picture it from our perspective. Okay? You've never done it before. You've never done this kind of thing. It's all taboo to you. You come into a room with a guy you don't know. He jumps on a woman, she's startled and scare[d], screaming for help. Having him to stop. He's throwing her on the bed. Gets her down, holding her down, forces her clothes off and you still think it's a good idea to try and put your penis in her vagina?
“((Crosstalk))
“[Defendant]: Of course it don't sound like a good idea but at the same time I'm under the impression that this is a role play.
“[Officer Funderburk]: Do you honestly think she was role playing?
“[Defendant]: Well.
“[Officer Funderburk]: You just said earlier you didn't.
“[Defendant]: No, I af-af- after it carried on of course you know what I'm saying, I start you know this ain't-this ain't-this ain't you know what I'm saying what it is. Because when we got to the sexual part she was-she was telling him no I don't want to do it like this.”
Defendant indicated he wanted the officers to stop the recording, which they pretended to do. He then told them that he just wanted the money-he was not trying to hurt Doe, but he was unsure about the situation. His “gut was telling [him] one thing but [his] greed was telling [him] another.… Like I kept saying man, I'm not cool with this.” Defendant said Doe's reaction was worse than he thought-“it's like I was in an explosion and fire and shit man.”
III. DNA Evidence
Investigators collected DNA swabs from defendant, Doe, and R.H. From the genital swab of Doe, the sperm cell fraction collected excluded R.H., but could not exclude defendant. The criminologist opined defendant was the most likely person to have deposited the sperm cell DNA from the external genital swab and defendant could not be excluded from the DNA swab of Doe's right cheek.
IV. Trial and Verdict
Jury trial commenced on May 1, 2018, and the presentation of evidence and argument concluded on May 8, 2018. The case went to the jury for deliberation on May 8, 2018; the jury sent notes to the court requesting a copy of the Tehachapi police report, for the definition of great bodily injury, and the readback of McCombs's testimony. On May 9, 2018, the jury sent a note asking why the term “[i]n concert” was used in counts 1 and 2, but not others and asked what the difference was between “[i]n concert” and aiding and abetting. No deliberations were held on May 10, 2018; on May 11, 2018, the jury indicated they had reached a verdict on counts 1 through 4 and 6, but were deadlocked on count 5.
The jury found defendant guilty of all counts except count 5 and found all the enhancement allegations to be true. Defendant waived his right to a trial on his prior convictions and admitted them. The court then dismissed count 5.
At sentencing, the court imposed two consecutive indeterminate terms of 50 years to life, plus a determinate term of 18 years. This appeal followed.
DISCUSSION
I. Ineffective Assistance of Counsel
Defendant argues his trial counsel rendered ineffective assistance by failing to interview R.H., failing to call R.H. to testify because he did not know what R.H. would say-which stemmed entirely from counsel's inadequate investigation, and by failing to call an expert witness.
A. Background
On May 7, 2018, after the prosecution rested its case-in-chief, defendant asked that his attorney be relieved and the court conducted a Marsden hearing. One of defendant's complaints was that counsel had failed to call R.H. to testify. Defendant's counsel, Gagliardini, told the court he had absolutely no idea what R.H. would have said. Having talked to R.H.'s lawyer that morning, he too did not know whether R.H. was actually willing to testify. Due to this, Gagliardini had decided not to put R.H. on the stand. The motion for new counsel was denied.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Before sentencing, on June 7, 2018, defendant again asked for new counsel, claiming his trial counsel had been ineffective. During the Marsden hearing, defendant explained one of his issues was that his attorney had refused to call R.H., even though R.H. had been willing to come forward and testify. Defendant knew R.H. was willing because he and R.H. had shared the same transport bus together on the day R.H. had come to court during defendant's trial, and R.H. had told defendant he was ready to “do whatever [he had] to do.” Gagliardini told the court he had spoken to R.H.'s lawyer, but Gagliardini had never been told R.H. was willing to be interviewed prior to testifying, and, thus, he had no idea what R.H. might say. Additionally, without an interview he would have no ability to impeach R.H. should he “go sideways.” For those reasons, Gagliardini had decided not to call R.H. to testify. The trial court granted the motion, relieved trial counsel and appointed new counsel to determine whether a motion for a new trial based on ineffective assistance of counsel was warranted.
A motion for a new trial based on ineffective assistance of counsel was filed and supported by an investigator's report of an interview conducted with R.H. An evidentiary hearing was held on September 14, 2018, where Gagliardini testified.
Gagliardini testified he had been in touch with R.H.'s lawyer, Thompson, who said R.H. might be willing to be interviewed by defense counsel's investigator Joe Serrano. Serrano went to the jail, but he was turned away. Serrano's trip to the jail was made prior to defendant's trial, but it was also made before R.H.'s trial. After R.H. was convicted and before defendant's trial started, no attempts were made to interview R.H., although defense counsel had multiple contacts with R.H.'s lawyer before and during defendant's trial about R.H. Thompson told defendant's counsel R.H. did not want to talk to anyone.
Defense counsel testified that without an interview, he decided not to call R.H. to testify. But, even if he had interviewed R.H., he still did not believe it would have been advisable to have R.H. testify. Some of defendant's admissions in the police interview indicated he recognized something was wrong during the encounter with Doe. Defense counsel testified he did not see the value in having an unknown convicted felon/coconspirator/accomplice in front of the jury in hopes that he might sway them. Counsel testified he believed that if anyone had an opportunity to minimize that statement to police it would be counsel and not a convicted rapist. Gagliardini testified that even if he had an interview report in his hand that said R.H. would testify that he enticed defendant to rape Doe, he still would not have put R.H. on the stand.
Defendant's new counsel had directed that R.H. be interviewed, and a report of that interview was submitted with the motion for a new trial. It was stipulated for purposes of the hearing what R.H. told the investigator and what he would have testified to if he had been called as a witness. R.H. could not recall exactly how his attorney worded instructions to him about testifying on behalf of defendant-he recalled his lawyer said it would do no good to talk to anyone about the incident given the way things were going and how his case was ending up. R.H. said he was never approached by defendant's attorney or investigator. He would have been willing to speak with them if they had contacted him. He was willing to testify in defendant's trial, and he thought he was going to be called-he sat in court all day and was never called to the stand. He did not know why he was never called to testify. If called, he would have said that he lied to defendant about the whole situation; that he led defendant into thinking it was a prearranged incident and that he had consent of all parties; and that he made defendant believe that everything was okay with Doe. R.H. said he was ready to “get over with this incident” and begin his life sentence.
Defendant's new counsel argued there was a prima facie showing of ineffective assistance of trial counsel in that R.H., a critical witness, was never interviewed or called to the stand to testify about defendant's mistake of fact that this was a consensual encounter. The court found trial counsel's conduct was not ineffective-he had sent an investigator to the jail, but was denied access to R.H. Defense counsel had at least six contacts with R.H.'s lawyer (Thompson), who said he had instructed R.H. not to talk with Gagliardini and if R.H. did talk with him, Thompson had no idea what he would say. Without access to the witness to conduct an interview, counsel made a reasonable tactical decision not to call someone to the stand when he did not know what that witness would say. As for any prejudice, the court determined defendant had acknowledged that before raping Doe something was amiss and Doe did not want sexual contact. There was evidence, despite defendant's misgivings, that he proceeded with the rape anyway because he wanted the $200 R.H. had promised him. There was no reasonable likelihood R.H.'s testimony would have resulted in a more favorable verdict.
The trial court noted the correct prejudicial error test at the outset of its ruling even though its statement in conclusion that there was no likely scenario that defendant would have been exonerated by R.H.'s testimony was misphrased.
B. Standard of Review
“Although ineffective assistance of counsel is not one of the statutory grounds for granting a new trial, the issue may nonetheless be asserted as the basis for a motion for new trial.” (People v. Reed (2010) 183 Cal.App.4th 1137, 1143.) Our high court has long counseled that “in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel's effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.” (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.)
When a trial court has denied a motion for a new trial based on an ineffective assistance claim, the appropriate standard of review is that appliable to mixed questions of law and fact. The reviewing court is to uphold the trial court's factual findings to the extent they are supported by substantial evidence, but consider de novo the ultimate question whether the facts demonstrate a violation of the right to effective counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
C. Analysis
“An ineffective assistance claim has two components: A [defendant] must show that counsel's performance was deficient, and that the deficiency prejudiced the defense.” (Wiggins v. Smith (2003) 539 U.S. 510, 521, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) We turn first to counsel's performance.
1. Failure to Interview and Call R.H. to Testify
a. Trial Counsel's Performance
The crux of defendant's ineffective assistance claim centers on Gagliardini's failure to interview R.H. either before or during defendant's trial. Because of this failure to diligently investigate, defendant contends Gagliardini could not make an informed tactical or strategic decision about whether to call R.H. at trial.
In evaluating a claim that defense counsel should have presented particular evidence, “[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.' [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” (Strickland, supra, 466 U.S. at p. 689.)
Nevertheless, “‘while acknowledging the wide latitude and discretion necessarily vested in trial counsel in the area of tactics and strategy, … the exercise of that discretion must be a reasonable and informed one in the light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation.'” (In re Hall (1981) 30 Cal.3d 408, 426.) A decision not to call a witness is generally a tactical decision, but it must be an informed one-it cannot stem from an unreasonable failure to investigate. (Id. at pp. 426-427; People v. Frierson (1979) 25 Cal.3d 142, 163 [“[E]ven tactical decisions may demonstrate incompetence if made without the benefit of ‘substantial factual inquiry.'”].)
On this record, we cannot conclude Gagliardini's failure to interview R.H. constituted an unreasonable failure to investigate. Gagliardini directed his investigator to make only a single attempt to interview R.H. at the jail based on a representation from Thompson that R.H. “would be willing to entertain [the defense] sending an investigator out.” The investigator was turned away because R.H. signaled his unwillingness to be interviewed. Gagliardini was uncertain whether jail officials turned the investigator away or whether R.H. had communicated this to the investigator himself.
Gagliardini testified definitively that his information from Serrano was that R.H. refused to be interviewed. Although he acknowledged he did not know exactly how Serrano got that information-from jail personnel or from R.H. directly-we do not understand Gagliardini's testimony in that regard to be a statement he was unsure why Serrano had been turned away at the jail.
Gagliardini had consulted with R.H.'s counsel several times before and during R.H.'s trial and during defendant's trial about whether R.H. was willing to be interviewed, to testify, or what R.H. might say. Between text messages and in-person conversations, Thompson communicated to Gagliardini that R.H. did not wish to talk to anyone, R.H.'s counsel was not “‘going to let [Gagliardini] talk to him, '” and that Thompson did not know what R.H. would say about the incident if asked. Gagliardini testified, however, that Thompson had always been of the opinion that Gagliardini could attempt to contact R.H., but Thompson said he had counseled R.H. not to talk to Gagliardini.
R.H. was found guilty of similar offenses as those charged against defendant, apparently on April 26, 2018. As the court noted in its own questions of Gagliardini at the evidentiary hearing, R.H. had not been sentenced at the time of defendant's trial. Gagliardini was still getting information from Thompson that R.H. did not want to speak to him. Other than the fact R.H. was convicted before defendant's trial started, there is no evidence Gagliardini had any reason to believe R.H.'s decision not to talk to him or his investigator had changed-the information from Thompson was that R.H. was unwilling to talk. Although the specific dates of those conversations and text messages were not established, Gagliardini testified his communications with Thompson about R.H. continued through defendant's trial. Defendant told the court at the Marsden hearing on June 7, 2018, that he had information R.H. was willing to testify, but Gagliardini had still refused to call him. But, as Gagliardini pointed out at that hearing, it was his understanding R.H. refused to be interviewed before testifying, and Gagliardini did not want to put someone on the stand he had not interviewed.
This is the date reflected by the Kern Superior Court online Criminal Case Information database in case No. MF012020A.
Gagliardini believed R.H. had already been sentenced at the time of defendant's trial, but was still communicating with his counsel.
Based on this, we cannot conclude Gagliardini should have rechecked with R.H. about his willingness to be interviewed. While R.H's conviction prior to defendant's trial created a basis to question whether R.H.'s willingness to cooperate may have changed, Gagliardini had no information from R.H.'s lawyer this was so. As for the information defendant obtained from R.H., it is not clear (1) when or if defendant told Gagliardini about his transport bus conversation with R.H. prior to the close of evidence at trial; (2) whether that provided Gagliardini a basis to believe R.H. was willing to be interviewed; or (3) that there was time to conduct any kind of interview with R.H. by the time defendant may have told him R.H. was willing to testify.
As noted at the evidentiary hearing, R.H. made appearances at the courthouse during defendant's trial, and defendant argues that, at a minimum, Gagliardini should have interviewed him there. Gagliardini could have doubled-checked the information he had from Thompson and simply asked R.H. while he was in the courthouse whether he was willing to talk with him, but it was not unreasonable to rely on information provided by R.H.'s lawyer that R.H. was not so inclined and apparently had been instructed by his lawyer not to do so. It is also not known when defendant may have told Gagliardini about his conversation with R.H. on the transport bus. At the May 7, 2018, Marsden hearing, defendant did not mention to the court that R.H. had communicated to him that morning about his willingness to testify-defendant did not mention that specific conversation until the June 7, 2018, Marsden hearing, after the trial was over. Assuming that conversation took place when defendant later represented it did and that R.H. was in the courthouse that day, it is still unclear whether defendant told Gagliardini about it timely and whether Gagliardini had the time and opportunity to conduct any interview at that point.
There are practical problems with a lawyer interviewing a witness alone (see People v. Guerrero (1975) 47 Cal.App.3d 441, 447-448), but the realities of the practice of criminal law will not always permit the precautionary measure of having a third party present while a lawyer interviews a witness. “[L]ast-minute exigencies may inevitably force an attorney to interview witnesses personally, without the benefit of safeguards against inconsistent trial testimony.” (People v. Jackson (1986) 187 Cal.App.3d 499, 509.)
Gagliardini's failure to check again with R.H. about his willingness to be interviewed, when he continued to have updates from Thompson that nothing had changed in that regard, does not demonstrate that Gagliardini failed to conduct a reasonable investigation or that his conduct fell below an objective standard of reasonableness. (Bell v. Cone (2002) 535 U.S. 685, 702 [court must indulge a strong presumption that counsel's conduct falls within wide range of reasonable professional assistance because “it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.”]) Because Gagliardini's decision not to call R.H. was made after reasonable, although imperfect, efforts to obtain an interview, the decision not to call R.H. to testify was a reasonable tactical decision. Gagliardini did not know what R.H. would say and would not have any prior statements from R.H. for impeachment purposes, if necessary. Counsel weighed the risks of presenting R.H. to the jury under these conditions and strategically chose not to do so.
b. Prejudice
Even if Gagliardini's attempt to interview R.H. and contacts with R.H.'s counsel about obtaining an interview did not constitute reasonable investigation, we would still be compelled to conclude any deficient performance in this regard was not prejudicial to defendant. To establish prejudice, a defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.) A defendant “need not show that counsel's deficient conduct more likely than not altered the outcome in the case.” (Id. at p. 693.) Rather, he must show “a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.)
The defense hinged on defendant's mistake of fact about Doe's consent. Gagliardini performed very little cross-examination of Doe or any other witness, largely because the testimony was consistent with the theory defendant believed Doe had consented and that the prosecution had not proven beyond doubt that defendant's mistaken belief was not actual and reasonable.
In People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), the California Supreme Court held that a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape. In People v. Williams (1992) 4 Cal.4th 354, the court explained the circumstances in which a court is required to give a Mayberry instruction in a rape case: “Mayberry is predicated on the notion that under section 26, reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent. [Citations.] [⁋] The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent.” (People v. Williams, supra, at pp. 360-361, fns. omitted.) The subjective component requires evidence, either direct or circumstantial, of the defendant's state of mind when he committed the offense. (People v. Andrews (2015) 234 Cal.App.4th 590, 600, citing People v. Maury (2003) 30 Cal.4th 342, 425.)
Secondly, “the defendant must [also] satisfy the objective component, which asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction.” (People v. Williams, supra, 4 Cal.4th at p. 361, italics added.)
The objective reasonableness of a belief is assessed by whether a reasonable person in a similar situation with similar knowledge would believe the mistaken fact. (See People v. Steele (2002) 27 Cal.4th 1230, 1253 [objective component for heat of passion manslaughter considers the mind of an ordinary reasonable person under the given facts and circumstances; “‘[E]vidence of [the] defendant's extraordinary character and environmental deficiencies was manifestly irrelevant to the inquiry.'”]; see also People v. Jefferson (2004) 119 Cal.App.4th 508, 518 [belief in the need for self-defense must be objectively reasonable; this is judged from the point of view of a reasonable person in the position of the defendant, considering all the facts and circumstances, to determine whether the defendant acted in a manner that a reasonable person would act in protecting his or her own life or physical safety].) Objective reasonableness is not based on defendant's specific personal characteristics. Thus, the fact defendant used drugs and was homeless and apparently desperate for $200 are personal characteristics that may be relevant to his subjective belief, but they are not part of the objective reasonableness calculous. The question is whether a reasonable person in a similar situation with similar knowledge would believe Doe consented to a sexual encounter with defendant on that day.
Here, the prosecutor had the burden to show defendant did not actually and reasonably believe Doe consented to the simulated rape. (Mayberry, supra, 15 Cal.3d at p. 157.) The facts and circumstances surrounding defendant's mistaken belief about consent overwhelmingly established that belief was objectively unreasonable before and during the attack. (Strickland, supra, 466 U.S. at p. 696 [“[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”].) There is no reasonable probability R.H.'s testimony would have created a more favorable result for defendant.
As an initial matter, the unreasonableness of defendant's belief is not predicated in any part on an assumption that no adult would ever consent to a rape simulation as a form of sexual expression. Nor is it beyond reason to believe that some people might proposition a stranger or a relative stranger to participate in a rape simulation. The objective unreasonableness established here stems from what defendant was ostensibly willing to believe about the consent of a third person (Doe) who never indicated to him in any manner that she desired sexual contact with him-everything defendant knew about Doe came through R.H., which is what R.H. would have corroborated had he testified.
Defendant had never met Doe before-in fact, even after the rape he could only describe her to police as White, blond and average size. Doe testified she did not know her attacker-she could not even describe him other than that he was Black. Defendant had no basis to believe the woman R.H was taking defendant to was in fact R.H.'s wife-he admitted as much in his police interview when describing his misgivings during the attack: “I don't know if this is this guy's wife. Got no-I mean I don't-I don't really know but he's saying it's all an-it's all an act so.” Defendant had no basis to know R.H. was leading him to anyone R.H. actually even knew, and because R.H. told him it was supposed to be a surprise, he would have no way to confirm any of it.
But even if defendant could have somehow known Doe was R.H.'s wife, it changes nothing. In most sexual encounters or contacts, the consent of each participant is the essence of its legality. A third person cannot consent to sexual contact on behalf of someone else-nor can a person reliably pass along the consent of someone other than himself or herself to a third person. And the reason is basic: the consent of each participant is required and it can be withdrawn at any time upon communication to the other participant or participants. (See In re John Z. (2003) 29 Cal.4th 756, 762-763 [immaterial at what point a rape victim withdraws her consent; if the withdrawal of consent is communicated and ignored, continuing contact will be deemed nonconsensual].)
There are consensual sexual encounters that are nonetheless illegal-such as when one or more participants lack legal capacity to consent or because the act itself (incest) is illegal. (See, e.g., §§ 261.5 [sexual contact with a minor], 285 [incest].)
R.H. told defendant that a woman defendant did not know and had never met, who was purportedly married to R.H. but defendant did not know that definitively either, had at some point in the past consented to this simulated rape; and R.H. was now relaying this purported consent to defendant so R.H. and defendant could act on it to “surprise” Doe. Doe never conveyed that consent to defendant in any manner such that he could reasonably believe she was consenting to a simulated rape, or any other kind of sexual contact with himon that day. More than that, there was no basis for defendant to ascertain her ongoing consent during the encounter because words like “stop” and “no” as well as physical resistance would be an expected part of the simulation. The fact that he relied on R.H. for information about Doe's consent was patently unreasonable.
And, defendant knew Doe's consent was necessary-he told police he asked for reassurance from R.H. that Doe consented because he did not want trouble with the law: “[R.H.] wanted to be there when [Doe] got off or whatever. It's going to be like a surprise to her. I said man, I-I'm like, um, I said man I ain't trying to have no problems with the law behind this shit you know what I'm saying? Because if she don't know then, um-he said no man she's cool-she's cool with it man he was saying.”
The encounter itself showed defendant's mistaken belief about Doe's consent was objectively unreasonable-the attack caused defendant to rethink the accuracy of his subjective belief and it showcased exactly why that belief was objectively unreasonable from the start. Doe fought her attackers fiercely-she testified to that, the physical evidence corroborated it, and defendant told police her reaction made him know “in [his] gut” “it's not like what he [R.H.] is telling me [it] is like.” He told police that when they “got to the part, to the sexual part … her reaction was way worse … like I was in an explosion and fire and shit man.” Defendant told police several times he was convinced during the attack this was R.H.'s “program” not Doe's ”program” and that “after time it started not feeling right. It's not right. You know what I'm saying?” He told the officers he just wanted the money-he did not want to hurt Doe, he was just unsure. His “gut was telling [him] one thing but [his] greed was telling [him] another.”
There is no stipulation about R.H.'s testimony regarding the attack itself, but defendant suggests R.H. might testify to facts that would impeach Doe in certain aspects and might corroborate defendant's statements to police in other ways. For example, R.H. could corroborate defendant's claim that Doe calmed down after R.H. whispered in her ear. R.H. could also corroborate defendant's statements to police that R.H. reassured defendant several times during the attack that everything was “cool, ” meaning Doe had consented. However, it is highly improbable that any testimony by R.H. about reassurances he may have given to defendant about Doe's consent would overcome defendant's own statements to police about his doubts during the attack. But more importantly, whatever defendant subjectively believed was not supported by any facts showing that belief was objectively reasonable.
Defendant argues the opposite-that R.H.'s testimony would provide a factual basis for counsel to argue to jurors that even if defendant did have misgivings during the act, the prosecution had not met its burden of proving beyond a reasonable doubt that defendant's mistaken belief was not reasonable. R.H.'s testimony may have helped corroborate defendant's subjective belief, but it has no bearing on the reasonableness of that belief. The addition of R.H.'s testimony that he lied to defendant about the whole situation and about Doe's consent illustrates the very reason why it is objectively unreasonable to believe a potential sexual partner has consented to sexual contact without giving any indication of that consent for himself or herself.
As discussed, defendant showed up to a stranger's house to enact a rape simulation he had never talked to or communicated with the would-be victim; in fact, he did not even know the victim; R.H. told defendant it was going to be a surprise-so defendant could not know if Doe's purported consent would extend to the encounter on that particular day; he knew he had no way to confirm whether she actually had and continued to consent because with this type of encounter, ostensibly resistance was expected; and when they attacked Doe, she fought far beyond defendant's expectations. No testimony by R.H. corroborating that he reassured defendant during the attack or that Doe seemed to calm down at one point would render defendant's belief that she consented to the attack less unreasonable.
Defendant postulates R.H. might have testified that he and Doe had discussed engaging in this type of sexual encounter in the past. Defendant points out Doe testified she told defendant during the attack that if R.H. had said she wanted this, she did not-suggesting this had been a subject of conversation between Doe and R.H. in the past. Assuming R.H. would testify in that manner, it would not establish defendant was part of those conversations or that those conversations, even if relayed by R.H. to defendant, could provide defendant any reasonable basis to conclude Doe was consenting to this sexual encounter with defendant.
The fact the jury could not reach a verdict on count 5 does not change the analysis. Count 5 was a specific intent non-sex crime about defendant making criminal threats against Doe during the course of the attack. The jury was instructed that defendant was not guilty of this offense if he did not have the specific intent specified: that defendant intended his statement be understood as a threat and that he intended that it be communicated to Doe. The jury was deadlocked by a vote of five to five with two jurors undecided, but the record does not reflect the reason. Assuming it was because there was disagreement about whether defendant intended his statements to be a threat due to his purported belief Doe had actually consented to the encounter, that has no bearing on the other counts. On each of the other counts, the jury was instructed that, to find defendant guilty, it had to conclude beyond a reasonable doubt that defendant did not actually and reasonably believe Doe consented. Again, even if R.H.'s testimony could corroborate defendant's belief was bona fide and actual, there was no reasonable probability the jury would have reached a more favorable result given the great weight of the evidence pointing to the unreasonableness of defendant's belief about Doe's consent.
The other five counts were either sex crimes or were general intent crimes. As to those counts, the jury was instructed that defendant could be found guilty only if, beyond reasonable doubt, his mistaken belief was proven not actual and reasonable. (See People v. Molano (2019) 7 Cal.5th 620, 668-669 [observing that one appellate court has suggested that a mistake of fact in specific intent sexual offenses, like count 3 here, need only be actual not necessarily reasonable, yet noting extension of this principle to sex crimes requiring specific intent is not a foregone conclusion].) There is no argument the jury was improperly instructed.
In sum, no matter how fully R.H. corroborated that he duped defendant into believing Doe consented, there is no reasonable probability his testimony would have resulted in a more favorable result. Neither the deficient performance of counsel nor any resulting prejudice has been shown.
2. Failure to Call an Expert
Defendant also argues Gagliardini should have called an expert to help “dispel the natural tendency of jurors to reject the very notion of rape fantasy, ” but counsel made no effort to do so. The record does not disclose why Gagliardini did not call this type of expert witness, and counsel was not asked to explain this at the evidentiary hearing. In fact, this was not a basis of the motion for a new trial. As the People point out, there is no information whether an expert of this type exists or what testimony such an expert would provide. On this record, we are unable to conclude there could be no tactical or strategic decision for counsel not to call such a witness.
Moreover, a claim of ineffective assistance of counsel based on the failure to call witnesses at trial must be supported by declarations or testimony showing “‘both the substance of the omitted evidence and its likelihood for exonerating the accused. [Citations.] We cannot evaluate alleged deficiencies in counsel's representation solely on defendant's unsubstantiated speculation.'” (People v. Bolin (1998) 18 Cal.4th 297, 334.) There is no declaration or other evidence to support the claim an expert could or would testify in a manner that would dispel what defendant terms as the “natural tendency of jurors” to reject the notion a person would consent to a rape simulation as a form of sexual expression. Defendant has not established that counsel's performance was prejudicially deficient in this regard.
II. Senate Bill 136
Effective January 1, 2020, Senate Bill 136 amended section 667.5(b) to limit application of prior prison term enhancements to only prior prison terms that were served for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). That amendment applies retroactively to all cases not yet final on Senate Bill 136's effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342, citing In re Estrada (1965) 63 Cal.2d 740, 742.)
Here, the trial court found defendant had served six prior prison terms within the meaning of section 667.5(b), and imposed one-year enhancements for four of them. The prior prison terms arose from violations of Penal Code section 69; Vehicle Code section 10851, subdivision (a); Penal Code section 4530, subdivision (c); and Health and Safety Code section 11351.
Under the current law, none of defendant's prior prison terms qualify for the enhancement. It has uniformly been held, including in cases from this district, that Senate Bill 136 applies retroactively to nonfinal judgments. (E.g., People v. Winn (2020) 44 Cal.App.5th 859, 872; People v. Jennings (2019) 42 Cal.App.5th 664, 681-682; People v. Lopez, supra, 42 Cal.App.5th at pp. 341-342.) Therefore, because defendant's appeal was pending when Senate Bill 136 became effective, the trial court's findings on the section 667.5(b) allegations must be reversed and the corresponding sentence enhancements must be stricken from the judgment.
III. Senate Bill 1393
A five-year enhancement under section 667, subdivision (a), was imposed on counts 1 and 3 based on a prior serious felony conviction. In September 2018, Senate Bill 1393 was signed into law. The legislation amended sections 667, subdivision (a)(1), and 1385, subdivision (b), and vested trial courts with discretion they did not formerly have to dismiss or strike a prior serious felony conviction for sentencing purposes. (Sen. Bill 1393.) The new law became effective January 1, 2019.
Senate Bill 1393 applies retroactively to nonfinal judgments. (People v. Stamps (2020) 9 Cal.5th 685, 699.) Defendant seeks remand so the court may consider exercising its discretion to strike his prior serious felony conviction. The People argue remand is unnecessary and would constitute a futile act given the record.
“‘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.'” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Bell (2020) 47 Cal.App.5th 153, 199 [remand unnecessary where record clearly indicates court would not have stricken prior serious felony enhancement if it had the discretion afforded under Sen. Bill 1393]; People v. Jones (2019) 32 Cal.App.5th 267, 274 [same]; People v. Johnson (2019) 32 Cal.App.5th 26, 69; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109-1111; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082; People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428.)
The People point out that the trial court noted defendant's lengthy criminal history, cited several factors in aggravation, violent conduct and prior unsatisfactory performance on probation and parole. In finding defendant ineligible for probation, the court commented the circumstances of the current offense were egregious, defendant was a threat to public safety and a prison sentence was justified. These comments, however, were made in relation to probation. They do not clearly indicate whether the court might strike the prior serious felony enhancement upon remand.
Although the original punishment may suggest a different outcome is unlikely, we will grant defendant's request for remand as we decline to guess how the trial court might exercise its discretion on remand. (See People v. Almanza, supra, 24 Cal.App.5th at pp. 1110-1111 [“speculation about what a trial court might do on remand is not ‘clearly indicated' by considering only the original sentence”].) We express no opinion whether the trial court should exercise its discretion under Senate Bill 1393.
IV. Dueñas
The trial court imposed a $300 restitution fine under section 1202.4, subdivision (b)(1), and the court also imposed a corresponding parole revocation fine (§ 1202.45) in the same amount, which was suspended, a $200 court operations assessment (§ 1465.8, subd. (a)(1)), a $150 criminal conviction assessment (Gov. Code, § 70373), and a $600 fine under section 290.3 ($300 for counts 1 & 3 each); and a penalty assessment of $1, 860 ($930 for counts 1 & 3 each). Relying on Dueñas, supra, 30 Cal.App.5th 1157, which was issued while this appeal was pending, defendant contends the court should vacate the assessments and stay the fines based on his inability to pay.
Given the need to remand for a resentencing hearing to allow the court to determine whether to exercise its discretion pursuant to the change in law under Senate Bill 1393, we conclude it is unnecessary to reach defendant's Dueñas arguments; they are moot and we do not consider them.
DISPOSITION
The prior prison term enhancements under section 667.5(b) are stricken. The matter is remanded for resentencing so the court may determine whether to exercise its discretion pursuant to the change in the law under Senate Bill 1393. After resentencing, the court shall issue an amended abstract of judgment removing the prior prison term enhancements and reflecting any other changes that may be made at resentencing. The court shall forward the amended abstract of judgment to the proper authorities. In all other respects, the judgment is affirmed.
WE CONCUR: POOCHIGIAN, Acting P.J.DESANTOS, J.