Opinion
H043949
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO MATEO LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1119504)
A jury convicted Fernando Mateo Lopez of second degree murder and other offenses for a gang-related drive-by shooting. He challenges the trial court's order denying a motion to suppress evidence, asserting jurisdictional error and absence of probable cause. He also raises ineffective assistance claims and sentencing error. For the reasons stated here, we reject all but defendant's claim that the matter should be remanded in light of the recent statutory amendment to Penal Code section 12022.53, which gives the trial court discretion to strike gun enhancements found true by the jury. Accordingly, we will conditionally reverse the judgment and remand the matter for the trial court to determine whether to strike the now discretionary sentencing enhancements.
I. BACKGROUND
Defendant and four companions drove by a group of teenagers gathered in front of an apartment complex. They fired into the group, killing a 14-year-old girl and injuring three other teens. Defendant and Ricardo Salvador Diaz were charged after a preliminary hearing with: special circumstances murder (Pen. Code, §§ 187, 190.2, subd. (a)(21)- (22); count 1); five counts of attempted murder with premeditation (Pen. Code, §§ 187, 189, 664, subd. (a); counts 2 - 6); and three counts of shooting at an inhabited dwelling (Pen. Code, § 246; counts 7 - 9). All counts were alleged to have been committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(4), (5)), and during which a principal intentionally used a firearm (an SKS assault rifle) to inflict great bodily injury or death on a person other than an accomplice (Pen. Code, § 12022.53, subds. (d), (e)(1)).
Esmeling Lopez Bahena, Primitivo Rosas Hernandez, and Ramon Gutierrez were indicted by a grand jury for the same offenses. Diaz entered into an agreement with the prosecution and testified against his co-defendants. A jury found defendant guilty of the lesser included offense of second degree murder on count 1, guilty of the lesser included offense of attempted second degree murder without premeditation on counts 2 through 6, and guilty of counts 7 through 9 as charged. The gang and firearm allegations were found true. Defendant was sentenced to a 154-year prison term, consisting of 40 years to life for count 1; 32 years to life (consecutive) for count 2; 27 years four months to life (consecutive) for each count 3 through 5; 32 years to life (concurrent) for count 6; and 30 years to life (concurrent) for each count 7 through 9. Each count included a 25-years-to-life gun use enhancement under Penal Code section 12022.53.
Hernandez was found not guilty on all counts. Bahena was tried separately and found guilty on all counts. Gutierrez has not yet been tried. (We take judicial notice of the register of actions in Gutierrez's case in Santa Clara Superior Court case No. 13-JV-39890B. (Evid. Code, § 452, subd. (d).))
II. DISCUSSION
A. SUPPRESSION HEARING AND DECISION
Defendant moved under Penal Code section 1538.5 to suppress evidence of post-arrest custodial statements and the results of a gunshot residue test, arguing that his warrantless arrest was not supported by probable cause. (Unspecified statutory references are to this section.) His one-page memorandum of points and authorities related minimal facts leading to defendant's arrest, and argued that the evidence would establish no link between defendant and the shooting, no link between defendant and the suspect vehicle, no link between the vehicle and the shooting, and no link between defendant and the others who were arrested. Defendant elicited testimony from Officer Brandon Richards and Corporal Scott Purvis in support of the motion, summarized here.
At 9:43 p.m., one minute before a dispatch broadcast about a shooting at an apartment complex, Officer Richards saw Bahena's car run a stop sign a block from the complex. Officer Richards lost sight of the car for two to three minutes before locating it a few blocks away at Bahena's residence. The car appeared hastily parked, with the front end closer to the curb and the back end protruding more than 18 inches from the curb. Officer Richards observed a white bath towel on the ground outside the right rear door and a revolver-style handgun on the right rear floorboard. (At the suppression hearing, he identified the handgun and a rifle shell casing from a photograph of the floorboard.) He confirmed that the car was registered to Bahena's address. He helped secure the perimeter of the apartment building, and remained on the scene until the suspects eventually complied with orders to exit the apartment.
Corporal Purvis responded to a SWAT call around 11:45 p.m. regarding potential homicide suspects inside Bahena's residence. At some point a loudspeaker was used to hail the occupants from the apartment, and defendant was one of the people who emerged about 1:45 a.m. He was initially detained, and later arrested and transported to the police station. Several hours later Hernandez was found hiding in the residence. The SWAT team knew that Bahena was a Sureño gang member, but the officers did not know who was in the apartment.
The prosecution submitted the matter without additional testimony. Defendant argued there was no probable cause to arrest at the time the apartment was secured, or later when he exited the apartment, because no evidence linked him to the shootings. The court invited defendant to provide supplemental briefing with legal authority to support his arguments, and it set the matter for further hearing and decision.
At the time set for decision, the prosecutor argued that each suspect's arrest was justified because the car and at least two weapons had been tied to the murder and the car had been tied to the apartment where the five were hiding. Noting that the prosecutor may not have been fully apprised of what evidence was necessary to establish probable cause for the arrest because defendant's motion was presented in a Williams brief, the court invited the prosecution to offer additional evidence and argument on probable cause. Defendant commented that although his moving papers qualified as a Williams brief, he had complied with the court's request for supplemental briefing. The court responded: "I understand. [¶] And really what I would like is evidence. [¶] And I am going to allow the prosecutor to reopen to tie that down. And that's because this did not proceed in that manner. [¶] What I am looking for specifically is evidence that []rises to the level of probable cause" as to defendant. The court continued: "If I didn't see anything at all in the evidence that I did hear, then I wouldn't be asking for this to be flushed out. But if it's there, I want to know more particulars about it." And "I would like to close that loop before I rule." Defendant acknowledged the court's "complete discretion over that," although in his view there was no additional evidence on the matter. Submission was vacated, and the matter was set for a further evidentiary hearing.
People v. Williams (1999) 20 Cal.4th 119 (Williams).
The prosecution called four additional officers to testify (Officer Melinda Zen, Officer Greg Dini, Sergeant Shane Palsgrove, and Detective Jason Broyer). Officer Zen, a 17-year member of the Morgan Hill Police Department, responded to the fatal shooting call and assisted in several ways. She coordinated the initial command post, responded to the shooting site, the new command post, and twice to Bahena's apartment. She was familiar with local gangs, had served as a street crimes detective, and had testified as a gang expert. She knew that Bahena was a Sureño gang member; that Sureño gang members associate with other Sureño gang members; that gang members are violent and use weapons; that Sureños and Norteños are rival gangs; and that the drive-by shooting occurred in "a target-rich environment for Norteños."
Officer Zen heard Officer Richards broadcast his belief that at least three to four occupants had fled from the car. She listened to an audio recording of Officer Richards' radio communication during direct examination, and she heard Officer Richards on that recording "describe that he believed there were at least three to four occupants from the car [¶] ... [¶] [b]ased on the fact that it looked like they had bailed out of all four doors and the clothing there." A transcript of the recording was admitted in evidence. All officers were informed at a later briefing of "a drive-by shooting with multiple victims; one decedent; suspect vehicle with three to four occupants believed to be inside; and a containment on the suspect location."
Officer Zen returned to Bahena's apartment about 2:00 a.m. to serve on the hostage negotiation team. She was present when the team leader made several calls to the home, Bahena's cell phone, and Bahena's mother's cell phone. No one answered the calls, and voice messages were left in English and Spanish. Officer Zen had been advised that Bahena lived in the apartment with his family and was on probation for gang crimes, and she was concerned for the family's safety.
A negotiator hailed Bahena and his mother in Spanish and English over a loudspeaker, approximately five times over a 15 to 25 minute period. A general order was also made several times for all occupants to exit the apartment. After a 15- to 25-minute delay, Bahena's mother came out with her children. Bahena and three others followed. They were advised to exit one at a time, and each person was removed from the scene before the next exited.
Officer Zen immediately questioned Bahena's mother, who reported that defendant went out sometime before she went to bed at 9:00 p.m., and she and her two children were alone until defendant returned. She woke up when he returned, but she did not leave her bedroom until she heard her name broadcast over the loudspeaker. At that point she saw defendant in his bedroom with his friends. Officer Zen related that information to the other officers at the scene. Bahena was questioned next and told Officer Zen that three others remained in the apartment. Officer Zen also related that information to the other officers at the scene. Officer Zen did not know when defendant was arrested or who placed him under arrest. Each suspect was detained and questioned after exiting the apartment, and all were ultimately transported to the Morgan Hill Police Department.
Officer Dini was the first officer to respond to the shooting. Within 10 minutes, he interviewed a witness who heard shots and saw a car carrying at least four or five people speed from the scene. Officer Dini related that information to his supervisor, and he observed rifle casings in the road. Sergeant Palsgrove supervised the initial command post. Officer Dini told Sergeant Palsgrove four or five people were in the car, and Sergeant Palsgrove related that information to the SWAT team.
Detective Broyer responded to Officer Richards' call for backup at Bahena's apartment. Detective Broyer was a street crimes detective handling gang investigations, and he knew Bahena was a Sureño gang member on probation with gang conditions. He had conducted a probation search at Bahena's apartment 11 days before the shooting; he knew Bahena lived in the apartment with his mother and her two younger children; he knew Bahena's mother had recently reported vandalism to her car; and Bahena had told him he thought the rival gang was responsible for the vandalism. He knew the drive-by shooting occurred in territory claimed by the rival gang.
Detective Broyer recognized Bahena's car. A rear door was open with a white towel hanging to the ground. He saw a handgun on the rear floorboard and rifle shell casings on the seat. With the rifle and suspects at large, officers were concerned for their own safety as well as the public. The perimeter of the apartment building was secured, and Detective Broyer transitioned into a SWAT role and was briefed that four or five possible suspects were involved. The suspects did not respond to phone calls, and the command post ordered use of the loudspeaker. Detective Broyer did not see the suspects exit the apartment, and he did not know who arrested defendant. He and Corporal Purvis found Hernandez hiding in a bedroom closet several hours later while securing the apartment pending a search warrant.
In announcing its ruling, the trial court found probable cause for each arrest connected with the shooting, and probable cause to support arrests for resisting, delaying, or obstructing an officer. Applying the collective knowledge doctrine, the court imputed to the arresting officers Officer Richards' deduction that three or four people had exited the car, based on his observation that one door was open, at least one window was open, and the car appeared to have been hastily parked and vacated. Officers were collectively aware that a revolver and rifle casings had been observed in plain view on the rear seat and floorboard; that the car was registered to Bahena's mother at the address where it was parked; that Bahena lived at that address with his mother and younger siblings; that Bahena was a Sureño gang member; that gang members use weapons and act in concert; and that gang members in that community are typically young Hispanic males. Officers knew that a rifle used in the shooting remained at large. They knew that the location where the shooting occurred was "a target-rich environment" for members of the rival gang. They knew that no one answered phone calls made to occupants in the apartment; that all occupants had been ordered multiple times to exit the apartment; and that the loudspeaker could be heard on the entire block. The court found law enforcement acted with a justifiable concern for officer and public safety, given the serious nature of the shooting, the unrecovered rifle, and the fact that Bahena was a gang member.
1. Reopening The Evidence Was Not An Abuse of Discretion
Defendant argues the trial court lacked authority to allow the prosecution to present additional evidence after supplemental briefing. Citing subdivision (j) of section 1538.5 and Madril v. Superior Court (1975) 15 Cal.3d 73, defendant argues that the court was required to decide (and deny) the motion at the conclusion of supplemental briefing because defendant had provided adequate notice to the prosecution of the facts and legal theory upon which the motion was based, and the prosecution had failed to meet its burden to establish probable cause.
Section 1538.5 establishes the procedure by which a motion to suppress evidence is decided in the trial court. Subdivision (j) provides in part: "If the defendant's motion is granted at a [pretrial] hearing, the people, if they have additional evidence relating to the motion and not presented at the [pretrial] hearing, shall have the right to show good cause at the trial why the evidence was not presented at the [pretrial] hearing and why the prior ruling at [that] hearing should not be binding[.]" The court in Madril held that "determination of a 1538.5 motion at a special hearing in the superior court—whether in the defendant's or in the People's favor—deprives that court of jurisdiction to reconsider the matter unless the People, pursuant to subdivision (j), seek to reopen the matter at trial upon a showing of good cause." (Madril v. Superior Court, supra, 15 Cal.3d at pp. 77-78.)
The trial court did not contravene subdivision (j) or exceed its jurisdiction by sua sponte asking for additional evidence. The cited passage in subdivision (j) applies "[i]f the defendant's motion is granted." The trial court did not grant defendant's motion. Instead, after reviewing the supplemental briefing, it requested additional evidence from the prosecution. A trial court has discretion to set aside a submission order on its own motion to consider additional evidence. (See Baker v. City of Palo Alto (1961) 190 Cal.App.2d 744, 755 [setting aside submission of a case tried to the court for new evidence on a theory conceived by the court]; Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611 [recognizing the trial court's broad discretion to reopen a matter tried to the court before final judgment].) Indeed, " '[w]ithin reasonable limits, it is not only the right but the duty of a trial judge to clearly bring out the facts so that the important functions of his office may be fairly and justly performed.' " (Coit, at p. 1611.) No abuse of discretion occurred here. The trial court acted well within the bounds of the law to elicit the facts it viewed as necessary to decide the issues raised by defendant's motion.
Defendant argues that at the time initially set for decision the trial court "eschewed making the necessary and legally required ruling demanded by" the evidence that there was no probable cause for the arrest, and that "restrain[ing from] making that ruling cannot and should not be allowed as a technical way to avoid the restrictions of subdivision (j)," citing People v. Cowan (1987) 194 Cal.App.3d 756. Cowen held that trial courts cannot "circumvent the clear statutory requirement" in Penal Code section 1203.066 ("nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385"). (Cowen, at p. 758.) But there is no statutory mandate in section 1538.5 or elsewhere requiring the trial court to issue a ruling when, after considering supplemental briefing, it desires to hear further evidence. Section 1538.5, subdivision (i), provides a defendant with "the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing," and that due process was afforded here. (Baker v. City of Palo Alto, supra, 190 Cal.App.2d at p. 756 [" 'All that fairness requires is that the new theory ... be disclosed to the opposing party so that he may have a full opportunity to meet it' "].)
Williams does not instruct otherwise. Addressing the specificity required of a motion to suppress evidence, the court in Williams concluded that "a defendant must state the grounds for the motion with sufficient particularity to give notice to the prosecution of the sort of evidence it will need to present in response." (Williams, supra, 20 Cal.4th at p. 123.) The Williams court explained that when a motion is based on a warrantless search or seizure, the requisite specificity is generally satisfied by asserting absence of a warrant and making a prima facie showing to support the assertion. (Id. at p. 130.) But a defendant must include as part of the motion any specific argument (aside from lack of a warrant) challenging the reasonableness of the warrantless search or seizure, and give the prosecution the opportunity to offer evidence on the point. (Ibid.) The defendant also must present any argument as to why the prosecution's justification is inadequate, or risk forfeiting the issue for appeal. (Ibid.)
Defendant acknowledged that his original briefing was minimal, and he complied with the trial court's request for further briefing to "point[] to exactly what your arguments are with legal authority." Once the issues were fully presented to the trial court, nothing in Williams prevented it from eliciting further evidence on the points raised by defendant, or demanded that it rule on the motion to the exclusion of further evidence.
2. Probable Cause Supports Defendant's Arrest For The Drive-By Shooting
In ruling on a suppression motion, the trial court weighs and resolves conflicting evidence, judges credibility, and is permitted to draw inferences. (People v. Laiwa (1983) 34 Cal.3d 711, 718.) We defer to the trial court's express and implied factual findings so long as they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We independently review whether probable cause exists as measured by the facts found by the trial court. (People v. Aldridge (1984) 35 Cal.3d 473, 477.) We review the correctness of the trial court's ruling itself, not the trial court's reasoning. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
The Fourth Amendment requires that a warrantless arrest be supported by probable cause. (People v. Celis (2004) 33 Cal.4th 667, 673.) "[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts." (Illinois v. Gates (1983) 462 U.S. 213, 232.) It exists "when the facts known to the arresting officer would persuade someone of 'reasonable caution' that the person to be arrested has committed a crime." (Celis, at p. 673.) Probable cause requires " ' "a reasonable ground for belief of guilt, ... particularized with respect to the person to be ... seized." ' " (Ibid.) The standard requires " 'only the probability, and not a prima facie showing, of criminal activity.' " (Gates, at p. 235.)
Under the collective knowledge doctrine, officers may make arrests based on information and probable cause furnished by other officers. (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553.) "[W]hen police officers work together to build 'collective knowledge' of probable cause, the important question is not what each officer knew about probable cause, but how valid and reasonable the probable cause was that developed in the officers' collective knowledge." (Id. at p. 1555.) Arresting officers do not need to know the facts supporting their fellow officers' probable cause determination, but the underlying determination must supply a basis for arrest. (Id. at pp. 1553, 1555-1556.)
Defendant argues the witness's statement to Officer Dini that four or five people were in the suspect vehicle does not supply probable cause for defendant's arrest because "the speculative occupants of the car could have run off in any direction"; "any young male Hispanic [] could have appeared at Bahena's apartment at any time that evening before [] the police perimeter was established"; and "someone might have eluded detection by the police." The speculation urged by defendant does not undermine the reasonable factual inference that can be drawn from the evidence that the three males who emerged from the apartment with Bahena were in the car when the drive-by shooting occurred. (See Sharrar v. Felsing (3d Cir. 1997) 128 F.3d 810 [reasonable to infer that three unidentified suspects leaving crime scene with known fourth suspect in a van were same three men with fourth suspect at his home an hour later where van was parked].) In addition to the witness's information, Officer Richards himself saw the car run a stop sign and park such that it appeared several occupants had made a quick exit. Given the witness's observation, Officer Richards's observations, Bahena's status as a known gang member, the connection of the car to Bahena, and the location of the car in front of Bahena's apartment, it is reasonable to infer that Bahena and his crew drove directly to the apartment to take shelter inside, and in fact did so. The record establishes reasonable grounds to believe Bahena's companions who followed him out of the apartment, including defendant, had participated in the drive-by shooting.
Because we conclude probable cause exists to arrest defendant for the drive-by shooting, it is unnecessary for us to address any alternative theory for arrest.
3. Trial Counsel Was Not Constitutionally Ineffective
Defendant argues that trial counsel was constitutionally ineffective for failing to argue that his arrest was effectively an in-home seizure deemed unreasonable per se under the Fourth Amendment. The Supreme Court in Payton v. New York (1980) 445 U.S. 573 held that a warrantless arrest that occurs within a suspect's home is unreasonable without a showing of both probable cause and exigent circumstances. (Id. at pp. 576, 590.) Courts have held that Payton may be violated without a physical crossing of the threshold, "where there is such a show of force that a defendant comes out of a home under coercion and submits to being taken into custody." (United States v. Maez (10th Cir. 1989) 872 F.2d 1444, 1451, and cases cited therein.) Defendant cites Minnesota v. Olson (1990) 495 U.S. 91 (Olson), and Minnesota v. Carter (1998) 525 U.S. 83 (Carter) to argue that he was protected by the Fourth Amendment as a social guest in Bahena's home, and that because he was constructively arrested inside Bahena's home, his arrest was unlawful under Payton.
The court in Olson concluded that a person's "status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable." (Olson, supra, 495 U.S. at pp. 96-97.) The court emphasized the guest's purpose in seeking shelter—whether in a friend's home or a hotel room—is to secure a private place to sleep and secure belongings. (Id. at pp. 98-99.) The Olson court cited to Jones v. United States (1960) 362 U.S. 257 as an analogous case. In Jones, a friend had given the defendant permission to use his apartment. The defendant had a key to the apartment, some clothing, and had slept there " 'maybe a night' " while the friend was away. (Id. at p. 259.) But a plurality in Carter, while approving Olson and Jones, held that persons packaging cocaine in an apartment not their own did not have a Fourth Amendment expectation of privacy in the apartment, where they were present for a business transaction with no other purpose to their visit. (Carter, supra, 523 U.S. at p. 90.)
An ineffective assistance claim requires a showing that counsel's performance fell below an objective standard of reasonableness and that the client was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The record on appeal must "affirmatively disclose[] that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.) Absent such showing, reviewing courts "presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' " (People v. Ledesma (2006) 39 Cal.4th 641, 746; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
Defendant fails to establish deficient performance in light of People v. Magee (2011) 194 Cal.App.4th 178, which held that a person who enters another's home to avoid police pursuit does not have a reasonable expectation of privacy in the home under the Fourth Amendment. (Id. at p. 189.) The court in Magee recognized that in Carter five justices agreed " 'that almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host's home' " (id. at p. 186), but Magee, who ran into the home of a friend to avoid contact with approaching police officers, was not a social guest because the purpose of entering the home was to escape police pursuit. (Id. at p. 188.) Even though Magee may have had a legitimate expectation of privacy in the same home during a social visit, "that does not mean that society is prepared to recognize as reasonable the privacy expectation ... [to] use the house as a sanctuary to escape contact with the police." (Id. at p. 187.) Trial counsel here may have reasonably been of the view that he could not establish defendant's status as a social guest under Magee, given that the purpose of defendant's visit was to hide after committing a drive-by shooting.
Trial counsel may also have made a tactical decision not to raise Payton due to the presence of exigent circumstances to justify the warrantless seizure. Exigent circumstances include " 'hot pursuit of a fleeing felon, or imminent destruction of evidence, [citation], or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling.' " (Olson, supra, 495 U.S. at p. 100.) Here officers were in pursuit of several gang members fleeing a drive-by shooting. The suspects were armed and known to be violent, having just fired several rounds into a group of teenagers. The suspects had motive to flee, and were holed up in an apartment with potential hostages, including children. Defendant's ineffective assistance claim accordingly fails.
B. SENTENCING ISSUES
1. No Multiple Punishment
The trial court imposed 30-years-to-life terms for each count 7 through 9 (firing at an inhabited dwelling) concurrent to the 154 years imposed for murder and attempted murder, finding that the evidence did not show additional culpability for those counts. Defendant argues the trial court instead should have stayed punishment for counts 7 through 9 under Penal Code section 654, which prohibits punishment "for more than one violation arising out of an 'act or omission' which is made punishable in different ways by different statutory provisions." (People v. Beamon (1973) 8 Cal.3d 625, 636.) Section 654 extends to multiple offenses committed during an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) But "[t]here is a multiple victim exception to section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective." (People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631.) The multiple victim exception applies to assault and shooting at an inhabited dwelling so long as each offense involves at least one different victim. (Id. at p. 1631.) Whether section 654 applies is a factual question, and we therefore review the trial court's decision for substantial evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Defendant argues the criminal conduct here—firing at a group of people—occurred during an indivisible course of conduct, and no evidence supports the multiple victim exception. According to the probation report, which is part of the sentencing record, bullets struck three separate apartments, all of which were occupied at the time. (Victims present in two of the apartments during the shooting testified at trial.) The apartment victims, who are different from the murder and attempted murder victims, support application of the multiple victim exception to the three counts of shooting at an inhabited dwelling.
2. Remand to Exercise New Statutory Discretion
Defendant received five 25-years-to-life gun enhancements under Penal Code section 12022.5, subdivisions (d) and (e). He argues the matter should be remanded for resentencing in light of a statutory amendment giving the trial court discretion to strike or dismiss the enhancements. Defendant was sentenced under Penal Code former section 12022.53, subdivision (h) which prohibited a trial court from striking "an allegation under this section or a finding bringing a person within the provisions of this section." That section was amended while this appeal was pending. Effective January 1, 2018, "in the interest of justice pursuant to [Penal Code] Section 1385 and at the time of sentencing," the trial court may "strike or dismiss an enhancement otherwise required to be imposed by this section." (Pen. Code, § 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) The amendment applies retroactively because it is ameliorative and defendant's judgment was not final before its effective date. (In re Estrada (1965) 63 Cal.2d 740, 744-748 [new statute allowing lesser punishment applies retroactively to nonfinal judgments]; People v. Francis (1969) 71 Cal.2d 66, 75-78 [new statute authorizing sentencing discretion retroactively applies to nonfinal judgments]; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679 [applying Pen. Code, § 12022.53, subd. (h) retroactively to nonfinal judgment].)
Respondent opposes resentencing, arguing that the record shows beyond a reasonable doubt that the trial court would have declined to reduce the sentence even under the newly granted discretion, citing People v. Gutierrez (1996) 48 Cal.App.4th 1894. The court in Gutierrez concluded that resentencing was required in three-strikes cases pending appeal when the Supreme Court issued People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (holding trial courts may strike prior strike convictions in furtherance of justice), "unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." (Gutierrez, at p. 1896; see also People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [extending clear indication standard to Pen. Code, § 12022.53(h) remands].) While we agree with respondent that the trial court selected from "an array of possible sentence choices and sentence outcomes," and "carefully craft[ed] a sentence it believed fair," the sentencing record does not demonstrate a clear indication that in no event would the trial court have stricken or dismissed any of the gun enhancements. We will therefore remand the matter for the trial court to decide whether to impose the enhancements, and if necessary, resentence defendant.
III. DISPOSITION
The judgment is conditionally reversed. The matter is remanded for the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h) as to the enhancements under Penal Code section 12022.53, subdivisions (d) and (e)(1) and, if any enhancement is to be stricken, to resentence defendant. If the trial court declines to strike the enhancements, the original judgment is deemed automatically reinstated. If defendant is resentenced, the trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Elia, Acting P. J. /s/_________ Danner, J.