Opinion
B264661
01-15-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN FITZGERALD KENNEDY, Defendant and Appellant.
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Scott A. Taryle, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA092421) APPEAL from an order of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Affirmed in part and remanded with directions. David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Scott A. Taryle, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
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John F. Kennedy was convicted of one count of second degree murder and four counts of attempted murder arising from two separate shooting incidents. We affirmed his conviction in 2017. Upon transfer of the matter from the Supreme Court, we now reconsider our initial opinion in light of a recent decision, People v. Canizales (2019) 7 Cal.5th 591 (Canizales), addressing the kill zone theory of attempted murder. We also consider recently enacted legislation related to firearm enhancements pursuant to Penal Code section 12022.53, a prior prison term enhancement pursuant to section 667.5, and future youth offender parole hearings pursuant to section 3051.
All further undesignated section references are to the Penal Code.
We remand the matter for resentencing and for the trial court to conduct a Franklin hearing. We otherwise again affirm the conviction.
People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
FACTS AND PROCEDURAL HISTORY
On the night of April 1, 2012, Keyon Kiles was shot and killed at the Fantasy Gold Strip Club on Pacific Coast Highway in Harbor City. Kiles and his brother, John F. Kennedy, were there attending a "going away party" for Charlie Parker, who was heading to prison. Parker belonged to the Rolling 20s gang; Kiles and Kennedy were members of the rival Insane Crips gang.
Between eyewitness testimony and surveillance video evidence, there is no dispute that Kennedy pulled out a gun and began firing multiple shots outside the club right after his brother was killed. The video showed Kennedy just outside the club in a parking lot that separated it from a Panda Express restaurant, in a firing stance with his arm raised. The parking lot led out to PCH. A few hundred feet to the west was the Harbor Inn Hotel. Three guests from the strip club party - Ashley Kennedy, Danisha Dixon, and Britney Batiste - fled the shooting and ran down PCH to Dixon's car, which was parked outside the Harbor Inn. The three women heard gunshots as they entered the car. One round entered the car and struck Batiste in the breast, causing a non-fatal wound.
On appeal, Kennedy concedes that he did so.
In order to avoid confusion, we will refer to Ashley Kennedy by her first name.
Ashley testified she heard two shots from nearby and believed they came from a car that had pulled up alongside. However, she did not see a car. Dixon said the shots came from a distance and did not see or hear a car pull up. Batiste could not tell where the shots came from, but said no car had pulled up when the shots were fired. Batiste had the bullet removed and recovered. Ashley's wrist was cut by broken glass.
Los Angeles police officers investigating the shooting recovered eight .40 caliber Winchester casings from the scene. Based on photos documenting the location of those casings, it appears that three were found in the parking area outside the strip club that led out to PCH, with the rest more or less in a line heading west on PCH toward the Harbor Inn. They also found a .40 caliber Federal casing on the sidewalk right by the Harbor Inn.
Some six weeks later, on the night of May 12, 2012, Kenneth McRoyal was shot and killed and Devon Augustine was shot and wounded while attending a party at a downtown loft complex. Photographs taken at the party show that Kennedy was there. Three .40 caliber Winchester casings that came from the same gun used in the Harbor City shooting were recovered at the scene-two near the loft and one nearly 400 feet away next to a set of car keys.
Witness testimony and police photos show that the shooting took place near a ground floor wood deck adjacent to a doorway into the loft. A metal gate sat at the far end of the deck, and strung along that gate was a sheer tarp. McRoyal and Augustine were outside the deck area when they were shot, and the shots came from behind the tarp. Witness Dwayne W. said he heard arguing near the deck, saw some people shaking hands, then heard one round of gunshots, followed soon after by another round of gunfire.
In between the two shootings, Long Beach police detectives obtained a warrant to add Kennedy's cell phone to an ongoing wiretap of other Insane Crips members. In a wiretapped conversation on April 17, 2012, Kennedy talked to an unidentified male about selling or trading his gun. In an April 22, 2012 conversation, Kennedy referred to his brother's feud with Parker, identified another Rolling 20s gang member as the person who shot and killed Kiles, said he was nearby when it happened and then "pulled out the hammer," "tore the club up," and "just ran out of shells . . . [because] ten . . . [was not] enough." A police gang expert explained that Kennedy's statement that he pulled out a hammer and tore up the club was an admission to committing the shooting.
Kennedy contends there was no probable cause to authorize the warrant. We set forth the facts surrounding the issuance of the warrant in the discussion section.
On May 13, hours after the May 12 loft shooting, a wiretap recorded a conversation where Kennedy asked the other person if he ever found a certain key. The other person said the key had not been found and that the area had been blocked off. The gang expert believed this referred to the car key that was found near one of the bullet casings. In a conversation later on May 13, an unidentified male asked Kennedy if he had any "shells for that thing?" Kennedy replied that he did not because he had used his last night. The other man asked if he "got off last night," which the gang expert translated as asking whether he had fired his gun. Kennedy said yes, adding that he got shot in the leg too. Asked where this happened, Kennedy answered, "Aw, at some loft function in L.A. somewhere."
During another phone conversation shortly after the loft shooting, Kennedy said he had been shot and was trying to get home. Asked to describe what happened and who did it, Kennedy replied: "Nah just, you feel me. You know how niggas be, it's just like a group of niggas, you know what I'm saying, just get there, they talking, wolfing and shit. I didn't say shit. You feel me, I just kept going. But you know how confrontations go, and niggas end up start shooting." The other male asked if Kennedy had "knock[ed] back." Kennedy answered, "Yeah, hell yea." According to the gang expert, "knock back" means to shoot or to shoot back. During a May 15 wiretapped conversation, Kennedy offered to sell his gun for $500.
In addition to the wiretapped conversations, a variety of physical evidence placed Kennedy at the scene of the two shootings. As noted, he was identified in a surveillance video as the person taking a firing stance with a gun in his hand in Harbor City. Kennedy made several phone calls at or near the time of the Harbor City shooting that were relayed through cell phone towers in the club's vicinity. As part of the wiretap warrant, a GPS device had been attached to Kennedy's car. It showed that right before the loft shooting his car was parked near the loft where the car keys and one .40 caliber Winchester casing were found. The car began to drive away moments after the shooting ended. A detective who went to Kennedy's house on a pretext saw that Kennedy had an in-and-out bullet wound on his left thigh.
Kennedy was convicted of the second-degree murder of McRoyal (count 4) and of the attempted murders of Augustine (count 5), Dixon (count 2), Batiste (count 1), and Ashley (count 3). (§§ 187, subd. (a), 664.) He was also convicted of shooting at an occupied vehicle (count 6). (§ 245.) The jury found true allegations that he personally and intentionally used a firearm (§ 12022.53, subds. (b)-(d)), that the Harbor City crimes were committed for the benefit of his street gang (§ 186.22), and that he had served a prior prison term for purposes of the one-year enhancement provided by section 667.5, subdivision (b). He was given a combined state prison sentence of life, plus 173 years and eight months.
We affirmed the judgment of conviction in an opinion filed January 26, 2017. Kennedy sought review from the California Supreme Court, which was granted. The high court deferred further consideration of the matter pending its decision in Canizales, supra, 7 Cal.5th 591. After the Canizales decision was issued, the court transferred the matter to this court with directions to vacate our original decision and reconsider the cause in light of Canizales, People v. Perez (2016) 3 Cal.App.5th 612, 619, and Senate Bill No. 620 (SB 620; Stats. 2017, ch. 682). We also granted Kennedy permission to file a supplemental brief addressing Senate Bill No. 136 (SB 136; Stats. 2019, ch. 590, § 1).
DISCUSSION
I. Any Error Resulting From Instructing the Jury on the Kill Zone Theory Was Harmless
Although Kennedy did not object to the kill zone instruction on the ground substantial evidence did not support it, and the People contend this issue has been forfeited on appeal, we may review any claim of instructional error that allegedly affects a defendant's substantial rights even in the absence of an objection. (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7.) As we did in the initial opinion, we exercise our discretion to reach the merits of this issue.
Kennedy asserts Canizales requires reversal of his attempted murder convictions because the evidence did not support instructing the jury on a kill zone theory and the error was prejudicial. Kennedy further challenges the contents of the kill zone instruction, contending it mislead the jury to believe it could find him guilty of attempted murder based on a finding of implied malice rather than specific intent to kill.
We agree there was insufficient evidence to support a kill zone instruction as to the Harbor City attempted murders because there was no evidence Kennedy had a primary target. (Canizales, supra, 7 Cal.5th at p. 608 ["When the kill zone theory is used to support an inference that the defendant concurrently intended to kill a nontargeted victim, however, evidence of a primary target is required."]; People v. Medina (2019) 33 Cal.App.5th 146, 156 ["a kill zone instruction is not appropriate where a defendant fires a deadly weapon into a group of individuals with the intent to kill but without a primary target. Nor, in the absence of a primary target, is a kill zone instruction appropriate even if the defendant intends to kill everyone in that group."].) Here, the prosecutor did not identify a primary target in the Harbor City shooting. There is also no evidence that Kennedy knew or had any previous encounters with his Harbor City victims. A kill zone instruction was not supported under these facts. We conclude, however, that any error resulting from the kill zone instruction was harmless.
The prior opinion concluded, "any errors in connection with the kill zone instruction were harmless." Because we reach the same conclusion in this opinion, we need not address the prior opinion's determination that the evidence supported a finding all four attempted murder victims were primary targets.
The deficiency - lack of a primary target - that renders the kill zone theory inapplicable to the Harbor City shooting does not apply to the loft shooting however; the prosecutor identified McRoyal as the primary target. We need not examine whether sufficient evidence supports a kill zone instruction for the attempted murder charge of Augustine because we also find a lack of prejudice in that instance.
A. The Kill Zone Theory
Attempted murder requires the specific intent to kill, or express malice, and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) "To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant's mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (People v. Bland (2002) 28 Cal.4th 313, 328.) "[A]lthough the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what is termed the 'kill zone' " for attempted murder. (Id. at p. 329.)
In Canizales, supra, 7 Cal.5th 591, the Supreme Court explained that the kill zone theory may serve as the basis for an attempted murder conviction "when the jury finds that: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm — that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death — around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm." (Id. at pp. 596-597.) "In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory." (Id. at p. 607.)
If a jury has been instructed on the kill zone theory in error, reversal is not automatic. Instead, we review the error for prejudice under the standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Aledamat (2019) 8 Cal.5th 1, 13.) Under this standard, "[t]he reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." (Ibid.) In other words, the reviewing court must determine beyond a reasonable doubt that a reasonable jury would have rendered the same verdict absent the error. (Canizales, supra, 7 Cal.5th at p. 615.)
B. Analysis
Here, we conclude beyond a reasonable doubt that the jury would have rendered the same verdict absent the instructional error. The jury was instructed on two theories of criminal liability for attempted murder: direct intent and concurrent intent under the kill zone theory. The evidence strongly supported a finding of a direct or specific intent to kill. As to the Harbor City shooting, the evidence of Kennedy's direct intent is strong, as shown by the trail of expended shell casings leading down PCH toward Batiste, Dixon, and Ashley. This suggested Kennedy specifically targeted them and came closer in order to increase his chances of hitting his targets, especially as they got into the car, an enclosed space.
As to the loft shooting, Kennedy said in a wiretapped conversation that he shot back after being shot, raising the inference that he targeted the individuals he shot. Kennedy fired as many as four shots from a "very close" distance and there was no evidence that his shots were "going everywhere." The fact that he managed to hit Batiste and Augustine in the chest further supports an inference of direct intent to kill as to both shootings. (People v. Smith (2005) 37 Cal.4th 733, 741-742 [the act of firing toward a victim at a close, but not point blank, range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill, and "that the bullet misses its mark or fails to prove lethal [is not] dispositive"].)
Moreover, the Harbor City shooting occurred just after Kennedy's brother, who was also an Insane Crips member, had been killed in the club. The People's gang expert explained that a gang member, along with his gang, would suffer a loss of reputation if he did not respond to such a killing. Indeed, the expert testified a gang member who shoots innocent bystanders creates a more fearsome reputation for the gang beyond that of a gang member who merely kills other gang members. The gang expert's testimony applies equally to the loft shooting, where Kennedy himself was shot and had to respond. This evidence strongly supports a finding of direct intent to kill.
In addition to the strong evidence of direct intent, defense counsel did not mention the kill zone theory, but focused on creating reasonable doubt as to the identity of the shooter. In briefly addressing intent, defense counsel merely stated, "Again there was no spraying, there was no just shoot whoever he can see. Look at the video. It looks likes [sic] very directional, an intent by whoever that person is in that video." Given the evidence, the arguments, and the jury instructions, we conclude beyond a reasonable doubt that the jury reasonably found Kennedy specifically intended to kill all four victims when he fired. Any error resulting from the kill zone instruction was harmless because the jury would have rendered the same guilty verdict as to all four attempted murder charges.
Kennedy contends the error is not harmless because Canizales found prejudice when faced with the same circumstances. We find Canizales to be distinguishable. There, five shots were fired at a primary target and his companion from a distance of 100 feet away at a block party. The shots missed and killed an innocent bystander instead. At issue was the application of the kill zone theory to the attempted murder of the companion. (Canizales, supra, 7 Cal.5th at p. 609.)
The court considered the evidence regarding the shooting, the prosecutor's argument, the jury instructions, and the jury's questions during deliberation to conclude instructing the jury on the kill zone theory was prejudicial error. (Canizales, supra, at pp. 616-617.) As in this case, neither defense counsel in Canizales mentioned the kill zone theory, the jury was instructed with two theories for finding guilt, including that the defendant could be found guilty if he intended to kill the victim directly or under a kill zone theory, and the prosecutor argued both theories to the jury. (Ibid.) Unlike the circumstances of this case, however, the evidence was insufficient for the court to conclude beyond a reasonable doubt that a reasonable jury would find the defendants held a specific intent to kill the companion. (Id. at p. 617.) Additionally, the Canizales jury requested readback of certain testimony that suggested it was focused on whether the defendants targeted the companion specifically. (Id. at p. 618.) Here, there was no similar readback requests or questions by the jury that indicated it was focused on the issue of intent. Canizales does not dictate a finding of prejudice.
Finally, Kennedy challenges the content of CALJIC No. 8.66.1, asserting it misled the jury to believe implied malice was sufficient to find him guilty of the attempted murders, rather than a specific intent to kill. Kennedy also complains the prosecutor's explanation of how to apply the instruction compounded the ambiguity in CALJIC No. 8.66.1.
We do not judge a challenged instruction in isolation. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) The correctness of jury instructions is to be determined from the entire charge to the jury. (People v. Bolin (1998) 18 Cal.4th 297, 328.) " 'Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' " (People v. Richardson, supra, at p. 1028; accord, People v. Johnson (2009) 180 Cal.App.4th 702, 710.)
Our review of the totality of the jury instructions demonstrates that no reasonable juror could have believed Kennedy could be convicted of attempted murder on a kill zone theory without a finding of a specific intent to kill the victims; that is, no reasonable juror could have believed that implied malice was sufficient.
The jury was instructed with CALJIC No. 3.31 that it had to find Kennedy held the required specific intent for both the murder and attempted murder counts. CALJIC No. 8.66 also told the jury that the prosecution had to prove that Kennedy had malice aforethought, "a specific intent to kill unlawfully another human being," in order to convict him of attempted murder. After describing the kill zone theory, CALJIC No. 8.66.1 concluded by stating it was for the jury to decide whether Kennedy "actually intended to kill the victim, either as a primary target or as someone within a 'kill zone' . . . ." Moreover, numerous additional instructions emphasized that a specific intent to kill was necessary to find Kennedy guilty of attempted murder. Taken as a whole, no reasonable juror could conclude that Kennedy was guilty of attempted murder based on implied malice. Instead, when read together, the instructions clearly told the jurors they must determine whether Kennedy specifically and actually intended to kill each of his victims.
Moreover, we are not persuaded the prosecutor's argument confused the jury as to the intent required to find Kennedy guilty of attempted murder. At closing, the prosecutor's statements addressing attempted murder and the kill zone theory were: "And did he intend to kill? It doesn't matter if he didn't know Brittney Batiste or Ashley Kennedy or Danisha Dixon from before. It doesn't matter. But did he know they were people and did he intend to kill somebody when he pulled the trigger? Same thing as to Devon Augustine, you don't have made [sic] at Devon Augustine or Ken McRoyal. Doesn't matter. Did he pull the trigger in the direction of a person intending to kill? [¶] The judge read to you 'kill zone' and this applies again in both scenarios. If the defendant pulled the trigger knowing that there were other people around and did not care who he hit in order to accomplish his goals, he's responsible for all of it. [¶] . . . Did the defendant fire a shot toward that car and not care who, if anybody, he hit there? [¶] Same thing at the Hollenbeck incident, if he's pulling the trigger intending to kill Ken McRoyal or to shoot Ken McRoyal and did not care who else got hit, . . . the defendant is responsible for that also."
Kennedy asserts the prosecutor's references to him not caring who he hit when he fired the gun encouraged the jury to understand the kill zone theory only required "conscious disregard" for the risk his actions posed to the victims. Not so. The prosecutor instead prefaced her remarks by reminding the jury of the court's instruction on kill zone. Moreover, she argued both theories of criminal liability and did not focus only on the kill zone theory. For his part, defense counsel failed to mention the kill zone theory at all. Nothing about the prosecutor's closing argument highlighted kill zone or misstated the law. Rather, the prosecutor emphasized that both theories required a specific intent to kill. As a result, there is not a reasonable likelihood the jury misunderstood the kill zone instruction to find Kennedy guilty of attempted murder without also finding a specific intent to kill.
Kennedy disputes this analysis, asserting the instruction given was unduly misleading under Canizales. Kennedy relies on the Canizales court's conclusion that similar jury instructions and closing arguments resulted in "a reasonable likelihood that the jury understood the kill zone instruction in a legally impermissible manner." Canizales, however, made this statement in deciding whether giving the instruction constituted prejudicial error, not to decide whether the specific language of the instruction misled jurors.
Indeed, Canizales expressly declined to invalidate the standard kill zone instruction under CALCRIM No. 600, but suggested "the standard instruction should be revised to better describe the contours and limits of the kill zone theory" as articulated in the opinion. (Canizales, supra, 7 Cal.5th at p. 609.) We acknowledge CALJIC No. 8.66.1 did not enumerate the six circumstances Canizales identified as bearing on a defendant's "intent to create a zone of fatal harm and the scope of any such zone" and did not expressly state an attempted murder conviction is appropriate under a kill zone theory if the "only reasonable inference" from these circumstances "is that the defendant intended to create a zone of fatal harm." (Id. at p. 607.) CALJIC No. 8.66.1 nevertheless set out the specific intent requirement of the kill zone theory, which Canizales affirmed. II. The Matter is Remanded for a Franklin Hearing
CALCRIM No. 600 is the successor instruction to CALJIC No. 8.66.1, the kill zone instruction given in this case.
The law provides certain dates by which a youth offender must be considered for release at a youth offender parole hearing. (See § 3051, subd. (b)(1)-(4).) At the youth offender parole hearing, the Board of Parole Hearings must "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)
In Franklin, supra, 63 Cal.4th 261, the California Supreme Court held that juvenile offenders must be given the opportunity to compile information regarding their characteristics and circumstances at the time of the offense to be considered at future youth offender parole hearings, including statements by family members, friends, school personnel, faith leaders, and representatives from the community. (Id. at p. 283.) Noting that such statements are more easily compiled at or near the time of the juvenile's offense rather than decades later when memories have faded or records have been lost, the high court remanded the matter to allow the defendant "sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Id. at p. 284.) Given its origin, this type of hearing is often referred to as a Franklin hearing.
Kennedy seeks remand of his case to allow him to compile evidence at a Franklin hearing for use at future youth offender parole hearings. Kennedy was 22 at the time he committed these crimes. He was sentenced in 2015, one year before the Legislature amended section 3051 to raise the age of those eligible for youth offender parole hearings from those who were under 18 years old to those who were 23 years of age or younger when they committed their controlling crimes. (Stats. 2015, ch. 471, § 1.) There is no dispute Kennedy is entitled to a Franklin hearing.
The Attorney General nevertheless argues remand is unnecessary because Kennedy may take advantage of a procedure, recently set forth by the Supreme Court, allowing eligible defendants with final judgments to obtain a Franklin hearing. (See In re Cook (2019) 7 Cal.5th 439, 453; People v. Medrano (2019) 40 Cal.App.5th 961, 968.) Such an additional procedural step is unnecessary under these circumstances and may result in the consumption of additional judicial resources. The more prudent course is to remand the case for the limited purpose of conducting a Franklin hearing.
III. Remand is Necessary for the Trial Court to Exercise its Discretion to Strike One or More of the Firearm Enhancements
Kennedy next seeks resentencing in light of SB 620, effective January 1, 2018, which amended sections 12022.5, subdivision (c), and 12022.53, subdivision (h), to give the trial court discretion to strike previously mandatory firearm enhancements. (§ 12022.5, subd. (c) ["The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."]; § 12022.53, subd. (h) [same].) Kennedy's sentence includes five 25-years-to-life terms for firearm enhancements under section 12022.53.
The discretion to strike a firearm enhancement may be exercised as to any defendant whose conviction is not final as of the effective date of the amendment. (See In re Estrada (1965) 63 Cal.2d 740, 742-748; People v. Brown (2012) 54 Cal.4th 314, 323.) Kennedy's conviction was not final when SB 620 went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 305 ["a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal"]; People v. Smith (2015) 234 Cal.App.4th 1460, 1465 ["[a] judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari have expired"]; see also Bell v. Maryland (1964) 378 U.S. 226, 230 ["[t]he rule applies to any such [criminal] proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it"].) The parties agree that SB 620 applies to Kennedy.
The Attorney General argues remand is unnecessary, however, because the record discloses a clear indication by the trial court that it would not have exercised its discretion to strike or stay the enhancements in any event. " '[W]hen the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.' [Citation.] But if ' "the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required." ' [Citation.]" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).) "The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court's statements and sentencing decisions to infer what its intent would have been. [Citations.]" (People v. Jones (2019) 32 Cal.App.5th 267, 273.)
The Attorney General points to the fact that the trial court imposed the maximum sentence, and observed it was warranted. The trial court further found no factor in mitigation and noted Kennedy "indiscriminately shot into innocent women near or in the car, folks he did not know."
We are not persuaded these sentencing decisions and statements unequivocally demonstrate that the trial court will not exercise its newfound discretion to strike any of Kennedy's five firearm enhancements.
Moreover, defense counsel questioned whether the enhancements for discharging a firearm causing great bodily injury under section 12022.53 should apply to attempted murder victims who did not suffer any injuries in counts 2 and 3. At the time of sentencing, the trial court had no discretion to take the lack of injury into consideration when it imposed five firearm enhancements totaling 125 years to life. Thus, remand is necessary so the trial court may have the opportunity to exercise its "informed discretion" at a new sentencing hearing. (McDaniels, supra, 22 Cal.App.5th at p. 425.) On remand, the trial court has discretion to consider whether to strike or dismiss one or more firearm enhancements, or none. In addition, the trial court has discretion to strike only the punishment for the enhancement. (§ 1385, subd. (c).) We express no opinion on how the court should exercise its discretion.
IV. The One-Year Prior Enhancement Should Be Stricken Upon Resentencing
Prior to January 1, 2020, a one-year sentence enhancement under section 667.5, subdivision (b), was mandatory " 'for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony.' " (People v. Buycks (2018) 5 Cal.5th 857, 889.) The only exception was for defendants who have remained free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (Ibid.) In October 2019 the Legislature passed SB 136, amending section 667.5, subdivision (b), to eliminate the prior prison term enhancement except in cases involving sexually violent offenses. SB 136 became effective on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c)(2).)
Because Kennedy's conviction is not yet final, and none of Kennedy's prior convictions was for a sexually violent offense, SB 136 applies retroactively to his sentence. (See People v. Brown, supra, 54 Cal.4th at pp. 323-324; In re Estrada, supra, 63 Cal.2d at p. 745 [for a non-final conviction, "where the amendatory statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"]; People v. Vieira, supra, 35 Cal.4th at p. 306 [" 'for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed' "].) The Attorney General concedes the one-year prior enhancement should be stricken.
Because we remand for the trial court to exercise its discretion to strike one or more of the firearm enhancements, we decline to modify the judgment to strike the one-year prior pursuant to SB 136 at this time. The trial court shall do so when it reconsiders the entire sentencing scheme and issues a new judgment. (See People v. Hill (1986) 185 Cal.App.3d 831, 834 [on remand for resentencing a trial court is "[n]ot limited to merely striking illegal portions" of a sentence but "may reconsider all sentencing choices, . . . because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components"]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1258 [trial courts are generally "afforded discretion by rule and statute to reconsider an entire sentencing structure in multicount cases where a portion of the original verdict and resulting sentence has been vacated by a higher court"].) V. There Was Probable Cause for the Wiretap Warrant
Having vacated the initial opinion, we repeat the discussion of the following issues that were previously addressed.
California law prohibits wiretapping except as allowed by statute. (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1053 (Sedillo).) A wiretap may be ordered where affidavits establish certain elements, including the one at issue here-probable cause to believe that an individual is committing, has committed, or is about to commit, certain specified crimes, including murder and attempted murder. (Id. at p. 1055; § 629.52, subd. (a)(2),(6).)
When a defendant has been identified through an authorized wiretap, the prosecution must ordinarily provide the defendant with copies of the intercepted communications, the court order, and the accompanying application. (§ 629.70, subd. (b).) These disclosures may be limited upon a showing of good cause, including the protection of the identity of confidential informants. (Sedillo, supra, 235 Cal.App.4th at pp. 1053-1054; § 629.70, subd. (d).)
Finally, state law cannot be less protective of privacy than the federal wiretap statutes, and, as a result, we also look to applicable federal law when examining the propriety of a wiretap authorization. (Sedillo, supra, 235 Cal.App.4th at p. 1053.)
Kennedy moved to suppress the wiretap authorization and all the evidence obtained from the wiretap on the ground that the warrant application did not establish probable cause that he had committed or was committing any crimes. Instead, he contended, the unsealed affidavit showed only that he might possess information about crimes committed by his fellow gang members. The motion was based on the disclosed portions of the wiretap application. However, the prosecution's opposition points and authorities asked the trial court to also base its review on a sealed affidavit containing information provided by a confidential informant. The trial court denied the motion to suppress after reviewing both the sealed and unsealed affidavits.
Kennedy may be right that the unsealed affidavit is defective in regard to probable cause. However, the sealed affidavit relaying information provided by the confidential informant cures any defects that might exist. (See People v. Leon (2007) 40 Cal.4th 376, 392-393 [examining sealed affidavit]; People v. Hobbs (1994) 7 Cal.4th 948, 976-977 [same]; Sedillo, supra, 235 Cal.App.4th at p. 1055 [same].) Without revealing too much, the confidential informant provided direct evidence that Kennedy obtained a handgun after his brother was shot at the strip club and "shot at" Dixon, Batiste, and Ashley. This statement provides probable cause that Kennedy committed that crime. (See People v. Lazarus (2015) 238 Cal.App.4th 734, 765 [strong evidence of guilt gives rise to probable cause].) Because the wiretap was valid as to the strip club shootings, the police could use evidence concerning the subsequent loft shooting obtained from the wiretaps as well. (United States v. Masciarelli (1977) 558 F.2d 1064, 1067; People v. Jackson (2005) 129 Cal.App.4th 129, 145.) We therefore hold that the trial court did not err by denying Kennedy's motion to suppress the wiretap evidence.
Kennedy asked us to augment the record to include the sealed confidential informant affidavit so we could review it as part of the probable cause analysis. We granted that motion.
VI. There Was Substantial Evidence That Kennedy Fired at All Three Harbor City Shooting Victims
Kennedy raises two related substantial evidence challenges to his attempted murder convictions in connection with the strip club shooting: (1) even though he fired the gun that discharged the .40 caliber Winchester casings, the existence of the one Federal casing near the Harbor Inn shows there was at least one more shooter, and there is no evidence that he was the one who shot at Ashley, Dixon, and Batiste; and (2) even if there is sufficient evidence that he fired in their direction, the fact that only one bullet pierced the car and struck Batiste shows he fired only one shot toward them, requiring reversal of two of the three attempted murder convictions. (People v. Perez (2010) 50 Cal.4th 222, 231-232 [attempted murder convictions of multiple supposed victims reversed when evidence showed only one shot in their direction].)
A police detective testified that there had been other shootings in the area and that it was not uncommon to find expended shell casings from a previous shooting. Kennedy was the only person seen with a gun and concedes that he was responsible for the multiple Winchester casings (but not the lone Federal casing) found at the scene of the strip club shooting. This evidence at most raised a conflict for the jury to resolve, and we hold that the jury could reasonably find that Kennedy had been the only shooter.
We also believe there was substantial evidence that Kennedy fired multiple shots toward the three women. First, as the gang expert testified, gang culture called for an immediate and escalated response by Kennedy that targeted as many people as possible. Second, Kennedy had additional motive because the fellow gang member who had just been killed was his brother. Third, Kennedy admitted in a wiretapped conversation that he emptied his gun in response to his brother's murder. Fourth, the location of the expended Winchester casings looks like a trail that leads down PCH from the strip club to the Harbor Inn, suggesting that Kennedy moved toward the victims in an effort to concentrate on them and increase his chances of hitting his targets. Finally, the fact that only one bullet hit the mark shows only that Kennedy had poor aim. Taken as a whole, when viewed under the substantial evidence standard of review, we conclude there was sufficient evidence that Kennedy fired multiple shots at all three victims at the Harbor City shooting.
DISPOSITION
The matter is remanded for the trial court to: (1) exercise its discretion to strike or dismiss the prior serious felony enhancement under SB 620; (2) strike the one-year prior prison term enhancement attendant to count 1 under SB 136; and (3) conduct a Franklin hearing. The judgment is otherwise affirmed.
BIGELOW, P. J. WE CONCUR:
GRIMES, J.
STRATTON, J.