Opinion
C076802
03-29-2018
THE PEOPLE, Plaintiff and Respondent, v. DEVON JEROME MCBRIDE et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F05600)
Defendants Devon Jerome McBride and Marce Bushey assaulted the victim with firearms and took his car. A jury convicted both defendants of robbery and assault with a firearm and convicted defendant McBride of recklessly evading a peace officer. Sentenced to state prison, they appeal.
Both defendants contend: (1) the trial court erred by not staying the sentence for assault with a firearm under Penal Code section 654.
Undesignated statutory references are to the Penal Code. --------
Defendant Bushey additionally contends: (2) the trial court erred by imposing consecutive terms for the crimes, and (3) a photograph lineup shown to the victim was unduly suggestive.
Defendant McBride additionally contends: (4) the evidence was insufficient to convict him of assault with a firearm, and (5) he is entitled to two additional days of presentence custody credit.
Of the contentions raised in the initial briefing, only the issue relating to custody credit has merit. The parties, however, also submitted supplemental briefing on the applicability of a recent amendment to sections 12022.5, subdivision (c), and 12022.53, subdivision (h), permitting the trial court to exercise its discretion under section 1385 to strike or dismiss sentence enhancements imposed under sections 12022.5 and 12022.53. The parties agree that the amendments apply to these proceedings and necessitate remand for the purpose of giving the superior court an opportunity to consider whether to exercise this discretion regarding the enhancements it imposed under sections 12022.5 and 12022.53. Accordingly, we will remand for resentencing, but otherwise affirm the judgments as to both defendants. At resentencing, defendant McBride shall also be awarded two additional days of presentence custody credit.
I. BACKGROUND
P.H. testified that, on August 19, 2012, she and both defendants were in Reno together, with other people. They returned to Sacramento from Reno in a black Jaguar on that day. At around 11:00 p.m., both defendants, along with P.H., K.L., and a man named Christopher, with K.L. driving, went to Renick Way in North Highlands, where the three men got out of the car. Defendant McBride told K.L. to meet them at the end of the street, so K.L. drove to the end of the street and parked. After waiting at the end of the street for about ten minutes, K.L. and P.H. noticed the light from a helicopter shining on them, so K.L. drove the car down Madison Avenue until she was pulled over by six police cars.
P.H. testified that she did not know defendant Bushey well. She knew him only by his nickname, "SaySo." She said he did not have tattoos. Defendant McBride's name was tattooed on P.H.'s chest. She testified reluctantly pursuant to the prosecutor's subpoena. She was originally a charged defendant, but the prosecutor dismissed the charges after meeting with her.
The victim testified that he arrived home at about 11:30 p.m. on August 19, 2012. He parked his 2002 Lexus RX 300 under a street lamp on Renick Way and was unloading his car when he saw three men get out of a dark-colored Jaguar. The victim described them as black men who were much lighter-skinned than he. The men walked down the street away from the victim but suddenly turned and came back in his direction. In the meantime, the Jaguar had been driven away. As the men approached the victim, they asked a question about marijuana. The victim responded that he did not know. One of the men asked a question about an individual named B.S. The victim responded that he did not know that person. Later, the victim learned that B.S. was the son of a neighbor.
The victim identified defendants as two of the men who approached him that night. They trapped the victim in the opening of the car door. Defendant Bushey became very agitated and started trying to hit the victim. He hit the victim in the forehead and in the back of the head and continued swinging. Defendant Bushey and defendant McBride produced guns. Defendant Bushey hit the victim in the head with a gun, and defendant McBride pointed a gun in the victim's face. The victim tried to knock the gun away from his face. Defendant Bushey hit the victim in the back of the head with the gun, and the victim stumbled and fell to a knee and finally to the ground. Defendant McBride reached into the victim's pocket and took his keys. The three men got into the victim's Lexus, with defendant McBride in the driver's seat, as the victim stumbled to the front of the car and put his hand on the car. Defendant McBride tried to run over the victim, but the victim was able to dive out of the way. The three men drove away in the victim's Lexus with the victim's wallet and cell phone still in the car.
After the police pulled over K.L. and P.H. in the Jaguar, the officers told the women what had happened on Renick Way and would not let the women take the Jaguar because K.L. did not have a license, so K.L. and P.H. left on foot. Defendant McBride was the registered owner of the Jaguar. K.L. tried unsuccessfully to contact defendants by cell phone. They went to K.L.'s house where they found defendants who were arguing and pushing each other. Defendant Bushey left. After that, defendant McBride, K.L., P.H., and others left in the victim's Lexus with defendant McBride driving. As they were traveling, several police cars began to follow them. When the police cars turned on their sirens, defendant McBride drove faster. P.H. began screaming for him to stop the car because she was scared. Eventually, defendant McBride slowed down, jumped out of the car and ran. A police car stopped the Lexus by ramming it. Defendant McBride was caught nearby.
Cell phone provider records established that: (1) defendant Bushey's cell phone traveled to Reno and back at the times P.H. testified defendant Bushey was with her and the others and (2) defendant Bushey's cell phone was in the vicinity of the crime scene shortly before defendants robbed the victim. Defendant Bushey used a cell phone on his mother's AT&T account. AT&T records showed that, on August 19, 2012, the day of the robbery, defendant Bushey's cell phone made contact with a cell tower in Reno at 1:04 p.m. From 7:05 p.m. to 10:39 p.m., the cell phone made contact with a cell towers in Roseville, Antelope, Sacramento, Carmichael, and North Highlands. The connections to cell towers between 9:58 p.m. and 10:39 p.m. occurred in the vicinity of Renick Way, where the robbery occurred around 11:30 p.m.
A photograph found on Facebook by a detective depicted both defendants standing in front of the black Jaguar.
Defendant Bushey had tattoos on his arms and the backs of his hands when he was interviewed by police approximately nine months after the robbery.
Defendants were charged by information and convicted by jury on all charged counts, except for a carjacking count (count one—§ 215, subd. (a)), as follows: Count two—second degree robbery (§ 211) with personal use of a firearm (§ 12022.53, subd. (b)); count three—assault with a firearm (§ 245, subd. (a)(2)) with personal use of a firearm (§§ 1197, subd. (c)(8), 12022.5, subds. (a) & (d)); count four (alleged as to defendant McBride only)—recklessly evading a peace officer (Veh. Code, § 2800.2, subd. (a)).
The trial court sentenced defendant McBride, as follows: The middle term of three years on count two, with a consecutive enhancement of ten years for personal use of a firearm; a consecutive term of one year (one-third the middle term) for assault with a deadly weapon (count three), with a consecutive term of one year four months (one-third the middle term) for personal use of a firearm; a consecutive term of eight months (one-third the middle term) for recklessly evading a peace officer (count four). The aggregate term imposed on defendant McBride is 16 years in state prison.
The trial court sentenced defendant Bushey, as follows: The middle term of three years on count two, with a consecutive enhancement of ten years for personal use of a firearm; a consecutive term of one year (one-third the middle term) for assault with a deadly weapon (count three), with a consecutive term of one year four months (one-third the middle term) for personal use of a firearm. The aggregate term imposed on defendant Bushey is 15 years four months in state prison.
II. DISCUSSION
A. Section 654 - Both Defendants
Defendants contend the trial court erred by not staying punishment for the assault with a deadly weapon under section 654. They argue that the intents and objectives for the assault with a deadly weapon and the robbery were not independent but were merely incidental to each other. To the contrary, the evidence supported the trial court's decision not to stay punishment on the assault with a deadly weapon.
1. Legal Background
" ' "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' [Citation.] However, if the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]" (People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.)
" 'Whether the facts and circumstances reveal a single intent and objective within the meaning of [section] 654 is generally a factual matter; the dimension and meaning of section 654 is a legal question.' [Citation.] We apply the substantial evidence standard of review to the trial court's implied [here, express] finding that a defendant harbored a separate intent and objective for each offense. [Citations.]" (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.)
2. Sentencing
Before sentencing, defendants argued that the court was required to stay count three because the robbery (count two) and assault with a deadly weapon (count three) were predicated on the same blow to the head administered by defendant Bushey. They also argued that the two crimes were a "single period of aberrant behavior." However, the trial court rejected these arguments and explained its reasoning: "I think the testimony of the victim in this case reveals that the defendants harbored multiple criminal objectives when committing the assault and robbery. [¶] The victim testified in this case the defendants approached him on his driveway and asked him if he knew a suspect or subject named [B.S]. When the victim said he did not, the defendants produced firearms, each of them pointed them at the victim and continued to demand information from the victim. [¶] The [assault with a deadly weapon] is complete as soon as they point the guns at the victim. They don't need to hit him with it. As soon as they point that firearm at the victim and demand information, their crime, their objective, their crime is complete, and their objective, as revealed by the victim's testimony was to get information from him. [¶] It is after the victim refuses to admit that he is familiar with [B.S.] and after the victim reaches up to knock one of the guns out of his face that he is struck with the firearm, falls to the ground, and his property is then taken from him. [¶] It seemed to me that the robbery almost seemed like an afterthought to the assault. [¶] In any event, the facts portrayed that the defendants had different independent objectives when pointing the guns at the victim and when striking the victim with the gun. The first objective was to try to obtain information. The second objective was the exercise of force or fear to enable them to take his property. [¶] Thus, punishing the defendants for both the robbery and the assault, in my opinion, would not violate [section] 654, and I would hereby deny that motion."
3. Analysis
Defendants simply disagree with the trial court and argue that all of the acts were undertaken to steal the victim's property. But we conclude the evidence supports the trial court's decision not to stay the assault count as to each defendant because the evidence supports the trial court's conclusion that the intent and objective associated with the assault with a deadly weapon was independent of and separate from the intent and objective to rob the victim.
Defendants rely primarily on People v. Nunez (2012) 210 Cal.App.4th 625 (Nunez). In that case, the defendant escaped from a mental health inpatient facility and approached the victim, who was sitting in his parked car. The defendant "slammed" the victim's window and screamed at him. The victim opened the car door and pushed the defendant back a couple of feet. The defendant swung a hammer at the victim, striking him on the forearm and hand, entered the victim's vehicle, and drove away. (Id. at p. 628.) The defendant was convicted of carjacking and assault with a deadly weapon. The trial court separately sentenced the defendant for the two convictions, concluding that the assault with a deadly weapon was not incidental to the carjacking for section 654 purposes because the defendant did not need to assault the victim in order to take his car. (Nunez, supra, at p. 628.) But the Court of Appeal disagreed and reversed. Although it recognized that a defendant can commit a carjacking without committing an assault with a deadly weapon, it concluded that was not what happened in this case because the assault with a deadly weapon was "the sole means of committing the carjacking. This course of criminal conduct was indivisible and the two crimes were committed so close in time that they were contemporaneous if not simultaneous." (Id. at p. 629.) "It is apparent that appellant wielded the hammer to take the car. It is equally apparent the victim was not a 'shrinking violet.' That is to say, he was not going to peacefully surrender his car. Use of the hammer was not a 'gratuitous act of violence' or an 'afterthought.' [Citation.]" (Id. at p. 630.)
Nunez does not help defendants. In that case, there was no reasonable way to separate the intents and objectives of the two crimes. Here, there is, as the trial court explained. Defendants pointed the guns (committed assault with a deadly weapon) at the victim because he was not giving them the information they wanted. After the victim tried to knock the gun away from his face, defendants changed to an independent intent and objective: robbery. The facts support the trial court's decision not to stay the count for assault with a deadly weapon.
Defendants assert that the prosecutor's theory at trial differed from the trial court's view of the evidence. That is of no moment. Neither the jury nor the trial court was limited by the prosecutor's theory. (See People v. Perez (1992) 2 Cal.4th 1117, 1124 [substantial evidence review does not depend on prosecutor's theory].) Only the facts are relevant to our analysis on appeal, and the facts support the trial court's sentencing decision. B. Consecutive Sentencing - Bushey
Defendant Bushey contends that the trial court also erred by imposing consecutive, rather than concurrent, terms for assault with a deadly weapon and robbery. He bases this contention on the same arguments he used concerning the section 654 issue. For the same reasons, we reject the contention.
California Rules of Court, rule 4.425(a) sets forth criteria affecting the decision to impose concurrent or consecutive sentences, including whether the crimes and their objectives were predominantly independent of each other; the crimes involved separate acts of violence or threats of violence; and the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. Only one criterion favoring imposition of consecutive sentences is necessary to support consecutive sentencing. (People v. Bravot (1986) 183 Cal.App.3d 93, 98.)
When consecutive sentences are permitted under section 654, we review the trial court's decision to impose them for abuse of discretion. (See People v. Bradford (1976) 17 Cal.3d 8, 20.)
Defendant Bushey argues that the court failed to conduct a proper analysis of whether the crimes were, in defendant Bushey's words, "a single period of aberrant behavior" or "a single action." To the contrary, the trial court carefully described how the two crimes were separated, as we previously discussed. When imposing the consecutive sentencing, the court referred back to its section 654 analysis that "the crimes and their objectives were predominantly independent of each other," which is one of the criteria for determining whether to impose consecutive sentencing. (Cal. Rules of Court, rule 4.425(a)(1).) There was no failure of analysis, and the trial court did not abuse its discretion in imposing the consecutive sentencing. C. Suggestive Photographic Lineup - Bushey
Defendant Bushey contends trial counsel provided constitutionally ineffective assistance because he did not object to admission of the victim's selection of defendant Bushey from a photographic lineup. We conclude that we need not determine whether counsel's representation was deficient because defendant Bushey fails to establish prejudice on appeal.
The victim identified defendant Bushey in a photographic lineup and again at trial. Defendant Bushey challenges the photographic lineup as impermissibly suggestive. He cites differences in the various photographs in the lineup, including (1) defendant is the lightest-skinned (to be considered with the victim's description of the assailant as light-skinned), (2) the background in the photograph of defendant Bushey is different from the backgrounds in the other photographs, (3) defendant Bushey's head is a different size from the heads of the other photographed subjects, and (4) defendant Bushey's head is held at a different angle from the heads of the other photographed subjects. When shown the photographic lineup, the victim identified defendant Bushey and said: "I think it is him. It is not any of the other ones." Defendant Bushey claims that the suggestive nature of the photographic lineup also tainted the victim's in-court identification of defendant Bushey. (See Simmons v. United States (1968) 390 U.S. 377, 384 ["convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification"].)
Defendant Bushey did not raise this claim at trial and has forfeited the claim because of his failure to raise it earlier. (See People v. Elliott (2012) 53 Cal.4th 535, 585-586.) He acknowledges the forfeiture and, instead, contends on appeal that trial counsel provided constitutionally ineffective assistance by failing to object to admission of the photographic lineup and in-court identification. We therefore consider defendant Bushey's claim of ineffective assistance of counsel.
To demonstrate ineffective assistance of counsel, a defendant must establish two elements: deficient representation and prejudice resulting from the deficient representation. The standard for deficiency is that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. The standard for prejudice is that there is a reasonable probability the defendant would have obtained a better result absent the deficiency. (People v. Avena (1996) 13 Cal.4th 394, 418; Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694.) If there is no showing of prejudice, we need not examine counsel's performance. (Strickland v. Washington, supra, at p. 697.)
Here, defendant Bushey has not established prejudice because the evidence of defendant Bushey's presence at and participation in the robbery was overwhelming. P.H. testified that defendant Bushey was with defendant McBride and the others on the day leading up to the robbery, even to the point where the defendants got out of the car on Renick Way. Defendant Bushey claims that P.H.'s testimony should be disregarded because: (1) her testimony varied as to some aspects, (2) she did not know defendant Bushey well, and (3) she did not know he had tattoos. This claim is not convincing, however, because: (1) defendant's argument against P.H.'s credibility is based on weak reasons to reject P.H.'s testimony under the circumstances and (2) independent evidence corroborated P.H.'s testimony. Defendant Bushey and defendant McBride appeared together in a photograph with the black Jaguar, and, more importantly, defendant Bushey's cell phone traveled with P.H. and the others from Reno to the crime scene. Even assuming for the purpose of argument that the photographic lineup was impermissibly suggestive and should have drawn an objection from defense counsel to exclude it, the remaining evidence against defendant Bushey was overwhelming and mutually corroborative. Accordingly, we conclude it is not reasonably probable defendant would have obtained a more favorable result, and, therefore, defendant Bushey's contention of ineffective assistance of counsel is without merit. D. Sufficiency of Evidence: Assault with a Firearm - McBride
Defendant McBride contends that the evidence was insufficient to convict him of assault with a firearm because, in his words, "merely pointing an unloaded gun at someone—without any evidence of a verbal or physical threat to discharge the gun and without any attempt to actually fire the gun—constitutes misdemeanor brandishing, not assault with a firearm . . . ." He recognizes that the evidence shows he waved the gun at the victim and pointed it at the victim's face, but he claims that, because there was no testimony that (1) the gun was loaded, (2) he held his finger on the trigger, or (3) he made a verbal threat, the evidence was susceptible of only one interpretation—that is, that defendant McBride meant only to frighten the victim. We conclude the evidence was sufficient to sustain the conviction on both direct perpetrator and aider and abettor theories.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment." (§ 245, subd. (a)(2).) "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) "Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury." (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) "[P]ointing an unloaded gun at another person with no effort or threat to use it as a bludgeon, is not an assault with a deadly weapon. This is for the reason that there is no present ability to commit a violent injury on the person. [Citations.]" (People v. Orr (1974) 43 Cal.App.3d 666, 672.)
Here, there was sufficient evidence of defendant McBride's threat to use the gun as a bludgeon. When the victim did not give defendants the information they sought from him, defendant Bushey began hitting the victim, and both defendants produced guns. Defendant Bushey hit the victim in the head with his gun, while defendant McBride waved his gun at the victim. When defendant McBride waved the gun all around, including in the victim's face, the victim tried to knock it away from his face. Even though defendant McBride never hit the victim with the gun, this evidence supports a reasonable inference by the jury that defendant McBride's actions constituted a threat to use the gun as a bludgeon. Defendants were attempting to coerce the victim into divulging information. They were in close proximity to the victim, and defendant Bushey's striking of the victim with his gun established that defendants, who were acting in concert, were willing to strike the victim to obtain the requested information. Defendant McBride's gun was so close to the victim that the victim described it as being in his face, and the victim responded by trying to knock the gun away. This evidence was sufficient to establish an implied threat by defendant McBride to use the gun as a bludgeon.
The evidence was also sufficient to convict defendant McBride of assault with a firearm based on an aiding and abetting theory. The jury was properly instructed on aider and abettor liability. As the court instructed, a defendant is guilty of aiding and abetting if:
"1. The perpetrator committed the crime;
"2. The defendant knew that the perpetrator intended to commit the crime;
"3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
"AND
"4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime."
Defendant Bushey committed assault with a firearm by bludgeoning the victim with his gun.
The jury could reasonably conclude that defendant McBride knew that defendant Bushey intended to commit an assault with a deadly weapon because defendants acted in concert, trapped the victim against his car, produced handguns, and demanded information from the victim.
The jury could also reasonably infer from the joint commission of the crimes that, before the commission of the crimes, defendant McBride intended to aid and abet the crimes. "A defendant's specific intent to commit a crime may be inferred from all of the facts and circumstances disclosed by the evidence. [Citations.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1130.)
And defendant McBride participated in trapping the victim against his car so that defendant Bushey could bludgeon the victim.
Defendant McBride asserts that the prosecutor did not argue this aiding and abetting theory to the jury. As defendant's failure to cite authority for this proposition would suggest, however, there is no such requirement. The prosecution's trial arguments are irrelevant to a contention of insufficient evidence on appeal. (People v. Perez, supra, 2 Cal.4th at p. 1124.)
Defendant McBride also asserts there was no evidence he knew that defendant Bushey was going to commit the crime by bludgeoning the victim. To the contrary, defendant acted in concert from beginning to end. They arrived together, approached the victim together, questioned the victim together, trapped the victim against his car together, and assaulted him together—like the actions were choreographed. The jury could reasonably infer that defendants agreed in advance what to do.
The evidence was sufficient to sustain defendant McBride's conviction for assault with a firearm. E. Presentence Custody Credit - McBride
Defendant McBride contends, and the Attorney General agrees, that the trial court miscalculated his presentence custody credits when it awarded 523 days of presentence credit. We also agree.
Defendant McBride was incarcerated on the current charges from August 20, 2012 (date of arrest), to August 26, 2012 (released on bond), for a total of seven days in custody, including full credit for partial days of incarceration on the first and last day. (See People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Later, he was rearrested on March 27, 2013, and was sentenced on June 19, 2014, for a total of 450 days. In total, defendant was in custody 457 days. However, the trial court awarded only 456 days of actual custody. The actual days in custody must therefore be increased to 457 days.
Also, the trial court, based on its miscalculation of actual days in custody, also awarded one less day of conduct credit than the number to which defendant was entitled. The court awarded 67 days of conduct credit. But the correct number was 68 days because defendant McBride was entitled to 15 percent of the actual days incarcerated under section 2933.1, subdivision (c) (457 times .15 equals 68.55).
The number of presentence custody credits therefore should have been 525 days. F. Firearm Enhancements - Both Defendants
Both defendants contend, and the Attorney General agrees, that recent amendments to sections 12022.5, subdivision (c), and 12022.53, subdivision (h), permitting the trial court to exercise its discretion under section 1385 to strike or dismiss sentence enhancements imposed under sections 12022.5 and 12022.53 necessitate remand for the purpose of giving the superior court an opportunity to consider exercising its discretion as to the enhancements it imposed under these sections.
At the time of sentencing, the imposition of these enhancements was mandatory, and the court had no discretion to strike them. (Former §§ 12022.5, subd. (c) ["Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section"], 12022.53, subd. (h) ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section"].) On October 11, 2017, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended these rules. Sections 12022.5, subdivision (c) and 12022.53, subdivision (h), as amended by Statutes 2017, chapter 682, sections 1 and 2, now allow a court to exercise its discretion under section 1385 to strike or dismiss an enhancement imposed by those sections: "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." (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
"Whether a statute operates prospectively or retroactively is, at least in the first instance, a matter of legislative intent. When the Legislature has not made its intent on the matter clear with respect to a particular statute, the Legislature's generally applicable declaration in section 3 provides the default rule: 'No part of [the Penal Code] is retroactive, unless expressly so declared.' " (People v. Brown (2012) 54 Cal.4th 314, 319.) The People concede, however, that the amendments apply retroactively to defendants' cases because they are not yet final. The People's position is based on In re Estrada (1965) 63 Cal.2d 740 (Estrada), and its "important, contextually specific qualification to the ordinary presumption that statutes operate prospectively" (People v. Brown, supra, at p. 323). As relevant here, when an amendment vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty, we presume the Legislature intended the new law to apply to cases where the judgment has not yet become final absent a contrary indication. (People v. Francis (1969) 71 Cal.2d 66, 75-76.) The fact that sections 12022.5, subdivision (c) and 12022.53, subdivision (h) specify that the court may strike or dismiss an enhancement "at the time of sentencing" or at "any resentencing that may occur pursuant to any other law" appears to be unique. This language was not present in the amendment at issue in People v. Francis. (Stats. 1968, ch. 1465, § 1, pp. 2930-2931.) Nonetheless, we conclude that it is at best ambiguous as to whether the Legislature intended this language to displace the Estrada rule. Accordingly, we accept the People's concession that these amendments apply to defendants' appeal.
We also accept the People's concession that remand is required. We note that in sentencing defendants, the court gave no indication how it would exercise the discretion it now possesses, but stated broadly, "I don't believe you're bad people. I think sometimes good people do bad things. [¶] . . . [¶] But there are consequences to your choices that I cannot ignore, and the law binds me to the consequences." In selecting the middle term for count two as to both defendants, the court made note of circumstances in mitigation: "[Y]ou are youthful and you have no known prior record of criminal conviction." On this record, remand is required.
III. DISPOSITION
As to defendant Bushey, the judgment of conviction is affirmed. The sentence is vacated and the cause is remanded to the trial court for the purpose of allowing the court to exercise its discretion whether to strike or dismiss the enhancements imposed under sections 12022.5 and 12022.53. Upon doing so, the court shall resentence Bushey accordingly.
As to defendant McBride, the sentence is vacated and the cause is remanded to the trial court for the purpose of allowing the court exercise its discretion whether to strike or dismiss the enhancements imposed under sections 12022.5 and 12022.53. Upon doing so, the court shall modify McBride's presentence custody credits consistent with this opinion and resentence him accordingly.
/S/_________
RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
MURRAY, J.