Opinion
E067932
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. DEJOHN LAMONT MILLER et al., Defendants and Appellants.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant, DeJohn Lamont Miller. Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant, Steffen Luther Fields, Jr. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Y. Friedman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. RIF1602427 & RIF1602734) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed in part; remanded with directions. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant, DeJohn Lamont Miller. Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant, Steffen Luther Fields, Jr. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Y. Friedman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted DeJohn Miller and Steffen Luther Fields, Jr. of two counts of robbery (Pen. Code, § 211, unlabeled statutory citations refer to this code), in Miller's case accomplished with a firearm. Defendants, who were tried together, argue it was error to instruct the jury it could find them individually guilty based on finding they acted collectively to deprive the victims of property by fear. Miller argues it was error for the trial court to bar him from showing the tattoos on his hands during closing argument. Fields argues his trial counsel provided ineffective assistance when he failed to object to a victim identifying him in open court. Finally, Miller appeals the firearm enhancements to his sentence (§ 12022.53, subd. (b)) because the Legislature gave trial courts the discretion to strike such enhancements after his sentencing, but before final judgment.
We conclude (i) the trial court's instructions, taken together, did not permit the jury to convict defendants individually for collective conduct, (ii) the trial court did not abuse its discretion in refusing to reopen evidence to allow Miller to show his tattoos, and (iii) Fields's trial counsel did not provide ineffective assistance of counsel by failing to object to a victim identifying him in court. We therefore will affirm defendants' convictions. However, we also conclude the amendment granting trial courts discretion to strike firearm enhancements (§12022.53, subd. (h)) applies retroactively to cases, like Miller's, not subject to final judgment. We will therefore remand the case to the trial court so it may determine, in its discretion, whether to strike Miller's enhancements.
I
FACTUAL BACKGROUND
A. The Robbery
Around 5:30 p.m. on March 30, 2016, two African-American men wearing hoodies entered a Walgreens in Moreno Valley and approached the pharmacist on duty at the consultation window. The pharmacist and a technician were the only two people working in the pharmacy at the time and they testified about the robbery. In addition, the prosecution played a security video of the incident for the jury, which the victims authenticated.
The first man asked the pharmacist whether he had any "oxy." Before the pharmacist could answer, the man placed his hand on the counter, vaulted over, and demanded to be taken to the medication. The pharmacist saw what he believed to be a taser in the man's hand. The second man, armed with a gun, also jumped the counter and approached the technician, who was standing at the drive-up window. He asked her to take him to "the oxy" and warned her not to make any wrong moves.
The pharmacist and technician went to the locked cabinet where they kept Class II narcotics, such as Norco, Vicodin, and Percocet. They opened the cabinet and put more than 1,000 pills into a plastic shopping bag for the men. The men then had the pharmacist lie on the floor, and he said he felt something hard and round like the muzzle of a gun against his back. The two men then left the way they had come.
B. The Investigation
A store security camera recorded the incident. During their investigation the police played the video for the pharmacist and the technician. About a week after the incident, a detective showed the pharmacist a six-pack of photos, but he was unable to identify the perpetrators. Though she later testified she got a good look at the defendants, the police failed to ask the technician whether she could make an identification. Investigators tried to lift fingerprints from the pharmacy counter, but found no matches.
Investigators asked other law enforcement officers whether they recognized defendants from still photographs taken from the security video. An officer who was familiar with Miller from prior contacts and social media told his colleagues one of the people looked like Miller and testified to that effect. He admitted on cross-examination he couldn't be certain of the identification, but he said Miller was the first person who came to mind when he saw the picture, and he told his colleague it bore further investigation.
On another occasion, Fields's mother, Jackson, identified both men in the same still photograph. Jackson is related to Miller too; he's the son of her niece and calls her "Auntie." She made the identification when she went to the police station to pick up Fields's car after he was arrested for violating the terms of his probation. The officer investigating the robbery met Jackson at the station. As they walked to the impound lot, he asked whether she could identify some people in a photograph. In testimony at the preliminary hearing, she said she responded, "That's my son, and that's my nephew." At trial, she backed away from the identification. She said the two individuals "looked like" Fields and Miller and pointed out she didn't have her eyeglasses on when she was at the station. She also explained she thought she had to identify the two relatives in order to get the car out of impound and said she couldn't be certain whether the picture showed defendants when she testified at trial because she hadn't brought her glasses.
The investigating officer said he had told Jackson the two men were under investigation for robbery and told her about the incident. He said when he showed her the photograph she said, "Wow," and asked what they were doing at the drug store. According to the officer, she expressed no doubt the photos depicted her son and nephew.
C. Verdict and Sentence
Based on the evidence we've recounted, a jury found Miller and Fields each guilty of two counts of robbery (§ 211, counts 1, 2) and found Miller had personally used a firearm in committing the offenses (§ 12022.53, subd. (b)). In bifurcated proceedings, Fields admitted he had previously suffered two prior prison terms (§ 667.5, subd. (b)), and three serious felony priors (§ 667, subd. (a)), which also constituted strikes (§§ 667, subd. (b)-(i); 1170.12). Miller admitted he had previously suffered one prison prior, as well as one serious felony prior and one strike.
The trial court sentenced Miller to a total of 26 years 4 months in prison—a six-year midterm for count 1 plus 10 years for the firearm enhancement, two years for count 2 plus three years four months for the firearm enhancement (one-third the midterm for both), and five years for the prior serious felony enhancement. The court stayed the prison prior.
The trial court sentenced Fields to a 15-year determinate term plus a 25-year indeterminate term—a 25-year indeterminate term for count 1, based on the "Three Strikes" violation, a concurrent 25-year term for count 2, and three, five-year serious felony enhancements. The court stayed the two prison priors.
Both appellants filed timely notices of appeal.
II
DISCUSSION
A. Robbery Instruction
Miller argues the trial court's robbery instruction violated his due process rights by allowing the jury to find him guilty even if it did not find he committed all the elements of the offense. The robbery instruction told the jury it could find "the defendants" guilty of robbery if it found "the defendants" took the medication through force or fear. He says so stated the instruction allowed the jury to find him guilty even if he didn't commit the proscribed acts but Fields did. Fields makes the converse of this argument by reference.
1. Additional factual background
The standard robbery instruction directs the jury to decide the guilt of a single defendant. (CALCRIM No. 1600.) Because this case involved two defendants, the trial court instructed the jury to decide the guilt of both defendants in a single instruction.
"The defendants are charged in Counts 1 and 2 with robbery in violation of Penal Code section 211.
"To prove that the defendants are guilty of this crime, the People must prove that:
"1. The defendants took property that was not their own;
"2. The property was in the possession of another person;
"3. The property was taken from the other person or his or her immediate presence;
"4. The property was taken against that person's will;
"5. The defendants used force or fear to take the property or to prevent the person from resisting;
AND
"6. When the defendants used force or fear to take the property, they intended to deprive the owner of it permanently." (Italics added.)
Miller emphasizes the trial court did not direct the jury on liability for aiding and abetting. However, the robbery instruction explains "[t]wo or more people may possess something at the same time" and "[a] person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person."
The trial court also instructed the jury to apply substantive legal instructions to each defendant separately. "Because more than one defendant is on trial here, I am going to remind you which individuals are charged with which crimes. [¶] Steffen Fields is charged with robbery in Counts 1 and 2. [¶] DeJohn Miller is charged with robbery and personal use of a firearm in Counts 1 and 2. [¶] You must separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately. If you cannot reach a verdict on both of the defendants, or on any of the charges against any defendant, you must report your disagreement to the court and you must return your verdict on any defendant or charge on which you have unanimously agreed. [¶] Unless I tell you otherwise, all instructions apply to each defendant." (Italics added.)
2. Analysis
In evaluating an ambiguous jury instruction, we consider whether there is a reasonable likelihood the jury understood the charge in the way defendants suggest. (People v. Kelly (1992) 1 Cal.4th 495, 525.) For due process purposes, the question is whether there is a "reasonable likelihood" the jury has applied the instruction in a way that violates the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) "Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting." (Boyde v. California (1990) 494 U.S. 370, 380-381.)
Faced, as we are, with an instruction that appears to allow two reasonable constructions, we must determine "'whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.'" (People v. Rivas (2013) 214 Cal.App.4th 1410, 1429.) However, we do not judge an instruction in artificial isolation. (Ibid.) We view it in context, looking to the overall charge. (Ibid.) Only with the whole context in view do we consider whether there is a reasonable likelihood the jury applied the instruction wrongly.
Here, the context resolves the ambiguity Miller identifies. He says the trial court allowed the jury to convict him of robbery, even if they found Fields took the property and Miller did not. This is so, he says, because the instruction can be reasonably construed to allow the jury to convict Miller of robbery even if it found Fields was the only one who performed certain critical acts. If it's true Fields took the property by fear, it's true that "the defendants took [the] property" and "[t]he defendants used force or fear to take the property." (Italics added.)
We conclude the appeal of Miller's argument relies entirely on taking the instruction in isolation. If the instruction is ambiguous, taken alone, the trial court resolved the ambiguity by directing the jury to "consider the evidence as it applies to each defendant . . . decide each charge for each defendant separately" and making clear that the jury could reach different conclusions about the two defendants. (Italics added.) We presume the jury followed the court's full instructions. (People v. Doolin (2009) 45 Cal.4th 390, 444.) Taken in context, we conclude the only reasonable interpretation of the robbery instruction was that the prosecution had to prove each defendant committed every element of robbery to convict both defendants.
Miller argues the evidence shows the jury did not interpret the instruction in that way. He says the video recording of the incident shows Fields took the pills and carried them away from the pharmacy and that he, Miller, did not do so. From this, he concludes the jury wrongly convicted him of robbery without finding he committed all the elements of the offense. His argument is not well-taken. It is simply not true that the jury could convict him of robbery only if they found he personally committed each of the required acts. The robbery instruction itself makes this clear. "A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person." (CALCRIM No. 1600.)
Thus, the jury was permitted to find both Miller and Fields culpable as direct perpetrators if it found they both took the drugs, even if only one of them held them and carried them away. Consequently, the fact Fields held the bag as the two men left the store does not establish Miller did not participate in the taking as a perpetrator. Miller was armed and directing the pharmacy employees when they loaded the shopping bag with medications, which gave the jury a basis for finding he exercised direct control in taking the drugs even though he did not carry the bag. The same evidence gave the jury a basis for finding he personally used force or fear to gain possession. Thus, the evidence Miller points to does not help him establish a reasonable likelihood the jury misapplied the instruction and violated his due process rights.
B. Exclusion of Tattoo Evidence
After the close of evidence, defense counsel sought permission for Miller to raise his hands during closing argument so the jury could see both hands are covered in tattoos. The trial court denied the request on the grounds defense counsel had not established a foundation showing Miller had the tattoos when he committed the offense and displaying the tattoos during argument would be admitting additional evidence not subject to testing by the prosecution. Miller argues the trial court abused its discretion and violated his right to present a complete defense.
The parties focus on whether the trial court abused its discretion by excluding the tattoo evidence on the grounds it was testamentary or irrelevant. Their arguments and authorities therefore focus on the court's discretion to exclude evidence under Evidence Code section 352. We believe the proper question is whether the trial court abused its discretion by refusing to allow the defense to reopen evidence during closing argument. The defendants had already rested, and the court had informed the jury "[t]he matter is closed to evidence." Miller's request was, in effect if not presentation, a motion to reopen the case and present new evidence during closing argument. Thus, the question we must answer is whether the trial court abused its discretion by refusing to reopen evidence, not whether the evidence could properly be excluded under Evidence Code section 352.
Trial courts have broad discretion to order a case reopened to allow the introduction of additional evidence. (People v. Goss (1992) 7 Cal.App.4th 702, 706; see also §§ 1093, 1094, abrogated on other grounds as recognized by People v. Norris (2002) 95 Cal.App.4th 475, 479.) In exercising that discretion, the courts consider, without limitation, "'(1) the stage the proceedings had reached when the motion was made; (2) the [moving party's] diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.'" (People v. Cuccia (2002) 97 Cal.App.4th 785.)
The court focused on the importance of the evidence and the likelihood introducing it would require additional evidence and take up additional time. The court rightly concluded the evidence was not relevant absent a foundation establishing Miller had the tattoos at the time of the offense. Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is relevant only if it tends logically, naturally, and by reasonable inference to establish material facts such as identity. (People v. Heard (2003) 31 Cal.4th 946, 973.) Here the evidence was the fact that Miller's hands were tattooed at the time of trial. That evidence would be relevant only if Miller established he had those tattoos at the time of the offense. If he had done so, he could have used the fact neither the pharmacist nor the technician recalled seeing any tattoos on the suspects' hands. But because he failed to lay that foundation, the jury could not reasonably have inferred the perpetrator was not Miller from his tattooed state at the time of trial. Thus, the evidence defense counsel sought to introduce was not, on its own, important to the case, and the trial court acted within its discretion in refusing to allow its introduction during closing argument.
The court also rightly concluded it could not allow the evidence to be introduced without giving the People the opportunity to rebut it. (People v. Cuccia, supra, 97 Cal.App.4th at pp. 792-793 [holding it was error to allow prosecution to reopen evidence in the middle of closing argument without giving defendant an opportunity to offer surrebuttal].) The defense could not simply have Miller raise his hands for the jury. Offering the tattoo evidence would have required a witness who could have testified Miller had the tattoos at the relevant time and who would have been subject to cross-examination by the People. It would likely have required, in addition, allowing the People to recall the pharmacist and the technician so the People could ask about the circumstances when—under the defense theory—they should have noticed Miller's tattoos if Miller really was the perpetrator.
The failure to elicit such evidence during the evidentiary portion of trial lay with defense counsel, as he acknowledged. "I didn't ask any of the witnesses who I could have called, like Ms. Jackson," Miller's aunt, whether he had the tattoos at the time of the offense. If he had, the prosecution could have cross-examined Jackson as to when Miller obtained the tattoos and could have recalled the robbery victims to explore the likelihood they would have noticed the tattoos under the duress of a fast-moving armed robbery. All this evidence was readily available during the trial; introducing it would not have required new witnesses. Defense counsel did not act diligently in waiting until after the close of evidence to raise these evidentiary issues. We therefore conclude the trial court acted reasonably in refusing to reopen the case, which allowing Miller to display his tattoos during closing argument would have required.
Miller makes much of the claim the trial court applied the wrong legal standard when it treated Miller's tattoos as testamentary. We do not read the court's comments as Miller does. In any event, we are not concerned with the court's reasoning but the correctness of its judgment, and its decision not to reopen evidence by allowing Miller to display his tattoos was amply supported on the grounds we discuss in the text. (People v. Chism (2014) 58 Cal.4th 1266, 1295 & fn. 12.)
C. Failure to Object to In-court Identification of Fields
Fields argues his counsel was ineffective because he failed to object to the prosecutor asking the pharmacy technician to identify defendants in court during trial. He says his trial attorney should have objected because the question violated a pretrial order of the court and because the identification was impermissibly suggestive.
1. Additional factual background
Before trial, the parties believed the pharmacist and technician had already been asked to identify defendants, but were unable to do so. The prosecutor represented the police report said neither victim could make an identification. In view of these facts, Miller's counsel filed a pretrial motion urging the court to bar an in-court identification as improperly suggestive and infringing the defendants' due process rights. In the alternative, Miller's counsel asked the court to order an in-court lineup.
The prosecutor said he didn't anticipate asking the victims to make an identification because he didn't believe they could do so. He said he would focus on getting them to authenticate the security video, though he did recognize it was possible the victims might be able to identify the defendants once confronted with them in court. The trial court ruled tentatively it would not order a lineup, and indicated any change in the witnesses' ability to identify the defendants would go to the weight of the identification, if there was one, not its admissibility.
The court and the parties seemed to agree the court should hold a section 402 hearing away from the jury to determine whether the witnesses could in fact make an identification. But the record does not reflect any such hearing. --------
At trial, the pharmacist confirmed he had been shown a six-pack of photos and couldn't identify either defendant. He did not claim to recognize them in the courtroom. On direct examination, the technician provided a description of the perpetrators. Asked whether she got a good look at their faces, she said, "the main thing I remember about their faces were how red their eyes were. I remember one of them being darker than the other. They were both black. They had on hoodies. Both of their statures were—they were, like, normal. Regular height. Neither one of them were too tall or too short. Regular build. . . . I mean, they looked pretty regular . . . I can't say, like, exactly facial features, but that's what they looked like."
On cross-examination, the technician revealed—apparently for the first time—that law enforcement had never asked her to make an identification. On redirect examination, the prosecutor revisited the issue. He asked, "Are you comfortable in the sense, if you saw these individuals again you think you would recognize them?" She responded, "I think if I saw them again, yeah, maybe I could recognize them." The prosecutor then asked her to look around the courtroom to see whether she saw the perpetrators. She looked to her left and then looked away, and said "I can definitely say that—not to be, you know—but one was definitely darker than the other. They were both brown skin, black males. One was darker than the other." The prosecutor asked, "Why did you look away." And she responded, "I mean, I think anybody would, kind of, look away at someone who had guns pointed at them."
The prosecutor clarified he was asking why she looked away after looking at defendants in court, and she responded, "Because exactly what—exactly, like, when I had to explain to the officer, like, what the guys looked like, that's exactly pretty much what I said. One individual was darker than the other. They were both black individuals. And yeah, that's pretty much what I saw when I looked over." She explained the defendants looked similar to the perpetrators, with similar skin color, statures, and ages. Neither defendant objected to this testimony nor the questions that led to it.
In closing argument, defense counsel argued the technician's testimony did not constitute an identification. Fields's counsel argued Roberts said she would be able to identify the suspects, and yet she never did. He pointed out the technician said, "If I saw him again, I could identify him" but also that "we never heard that she identified them. Not once." Miller's counsel made the same point. "[S]he turns to the left, she stares at both of them, then she looks back at . . . [the prosecutor], and she doesn't identify them. She's, like, well, one of them's light. One of them's dark. They're medium build. So she says that there's a resemblance, but that's not them. Because she just told you that, if I saw them again, I would recognize them." He argued "she did not recognize those two gentlemen, which means that they are . . . not the people who actually committed [the robbery]."
The prosecutor did not argue to the contrary. In his opening argument he said, "how do we know we got the right guys? Their own flesh and blood came in here and told you." In rebuttal argument, he again acknowledged the case turned on identifying defendants as the perpetrators, and argued the identification turned on the surveillance video. "I want to be very clear about something. [The victims] did identify the defendants in this case. They sat up there and they identified the defendants. And how'd they do that? In their surveillance video. And that photo from the surveillance video doesn't change, doesn't lie, doesn't get manipulated. They identified that photo. That's the identity in this case. . . . And [the] Investigator . . . did something that is so rare and so unique and so amazing, he got the defendant's own mother to finger him."
2. Analysis
Underlying Fields's claim of ineffective assistance of counsel are the claims (i) it was error for the prosecutor to ask the technician to identify defendants in court because it violated the court's order and (ii) her answer would not have been admitted (under proper objection) because identifying defendant in that context was too suggestive. We need not reach the heightened standard of an ineffective assistance claim because we find the underlying claims without support.
The prosecutor did not violate the court's prior order regarding in-court identifications when he asked the technician if she could identify Miller and Fields. It is true Miller's counsel filed a pretrial motion urging the court to bar an in-court identification or order an in-court lineup before allowing testimony in front of the jury. However, the trial court ruled tentatively it would not order a lineup, and said any change in testimony by the witnesses on their ability to identify the defendants would go to the weight of the identification, not its admissibility. Thus contrary to Fields's position, the prosecutor did not violate a court order by asking the technician if she recognized defendants. There was no prosecutorial misconduct.
What's more, circumstances had substantially changed when the prosecutor decided to ask his question. At the pretrial hearing, all the parties believed, based on a police report, that the technician had been asked to identify the defendants in a photographic lineup but failed to do so. Defense counsel elicited testimony showing that belief was mistaken; law enforcement never asked her to identify defendants at all. This new discovery undermined the case against allowing an in-court identification.
Miller based his original motion on Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans). There, the Supreme Court held "due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate." (Id. at p. 625.) However, in-court identification not preceded by an identification by lineup is not impermissibly suggestive and prejudicial as a matter of law. (People v. Williams (1997) 16 Cal.4th 153, 235-236; People v. Rodrigues (1994) 8 Cal.4th 1060, 1155.) The right to a lineup comes into play "only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve." (Williams, at p. 235) The Supreme Court held a lineup appropriate in Evans because the eyewitnesses "saw only a limited view of [defendant]'s head and shoulders from the rear" and "the witnesses had committed themselves . . . to the identification" in testimony at the preliminary hearing, which would make them "reluctant to recede from such a position, even if in error, at later proceedings in court." (Williams, at p. 235, citing Evans, at p. 621.)
This case is more like People v. Williams, supra, 16 Cal.4th at p. 235, which the Supreme Court distinguished from Evans precisely because "[t]he witnesses who identified defendant as a participant in the . . . incident testified to seeing his face" and the "testimony identifying [defendant] at trial was the first these witnesses had given respecting the . . . incident." (Williams, at p. 235.) Under such circumstances, there is no "reasonable likelihood of a mistaken identification." (Ibid.) Here, the technician also testified to seeing the defendants' faces. Indeed, she gave a detailed description of defendants to the jury before being asked if she could make an identification. In addition, she did not attend the preliminary hearing and, like the defendant in Williams, had never been asked to identify defendants, so she had not in any way committed herself to identifying defendants as the perpetrators.
Fields argues in-court identifications are impermissibly suggestive, but that principle gets him only so far. As the Court of Appeal explained in People v. Breckenridge (1975) 52 Cal.App.3d 913, 935-936, in-court identifications remain admissible even after Evans, so long as there is no reasonable likelihood of a mistaken identification a lineup would resolve. Absent conditions suggesting likely error, "an identification made in front of the jury carries with it the circumstances under which it was made, which, in turn, can be argued to and weighed by the jurors." (Breckenridge, at p. 936.) The trial court reached the same conclusion in its tentative ruling, and we agree. In this case, the technician's testimony was admissible, and the proper way to attack it was to challenge the technician on cross-examination. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1155 ["[I]t has long been recognized that '[i]n the case of in-court identifications not preceded by a lineup . . ., the weaknesses, if any, are directly apparent at the trial itself and can be argued to the court and jury without the necessity of depending on an attempt to picture a past lineup by words alone"].) Thus, the trial court did not abuse its discretion in admitting the testimony. It follows that Fields's trial counsel was not ineffective in failing to object because counsel is not required to make futile objections. (People v. Anderson (2001) 25 Cal.4th 543, 587.)
We also conclude the admission of the testimony was harmless. The technician did not testify affirmatively that she recognized defendants as the perpetrators. She provided a detailed description of the perpetrators in her opening testimony. She said, "I remember one of them being darker than the other. They were both black. They had on hoodies. Both of their statures were—they were, like, normal. Regular height. Neither one of them were too tall or too short. Regular build . . . I mean, they looked pretty regular . . . I can't say, like, exactly facial features, but that's what they looked like." Asked on redirect whether she would recognize them if she saw them again, she said she thought she would, looked at defendants, and then said the defendants looked similar to the perpetrators, with similar skin color, statures, and ages. In other words, she testified the defendants matched the description she gave in her opening testimony. This is not an affirmative identification of defendants as the perpetrators, as defense counsel argued in closing to the jury. The difference is important because it reduces the supposed prejudicial force of the testimony.
Nor did the technician's testimony stand alone in identifying the defendants as the perpetrators. On the contrary, as the prosecutor emphasized in his closing argument, the case rose or fell on the testimony of Fields's mother, who identified both defendants from a photograph taken from the surveillance video. Her testimony provided the jury with a strong basis for finding defendants guilty even without the technician's testimony. In addition, a police officer independently identified Miller as one of the perpetrators. Thus, even if admitting the technician's testimony was error, and even if defense counsel performed deficiently in failing to object, we conclude there is no reasonable likelihood the jury would have reached a more favorable result without the testimony.
D. Remand for Resentencing on Discretionary Firearm Enhancement
Miller's sentence includes enhancements under section 12022.53, subdivision (b) for the personal use of a firearm during a robbery. At the time of his sentencing, the trial court was required to impose the enhancements. After the trial court sentenced him, however, the Legislature granted trial courts the discretion to strike firearm enhancements under sections 12022.5 and 12022.53. (§§ 12022.5, subd. (c); 12022.53, subd. (h).) Those provisions took effect on January 1, 2018. (People v. Johnson (June 29, 2018, No. D071011) ___ Cal.App.5th ___ [2018 WL 3583871, at *24].) Miller asks that we apply the new provision retroactively and remand to allow the trial court to consider striking his firearm enhancements. The People concede a limited remand is required, and we agree.
We conclude People v. Francis (1969) 71 Cal.2d 66 (Francis) is controlling and requires retroactive application of section 12022.53, subdivision (h) to all nonfinal judgments. There, the defendant was charged with selling and giving away marijuana, but found guilty of possession of marijuana as a lesser included offense. (Francis, at pp. 69-70.) At the time of his sentencing, possession of marijuana was punishable by one to 10 years in prison, but the court had the authority to grant the defendant probation and require him to serve time in the county jail as a condition of probation. (Id. at p. 75.) The trial court sentenced the defendant to state prison. (Id. at p. 70.) After his conviction, but before the conclusion of his appeal, the Legislature amended the Health and Safety Code, giving trial courts the power to reduce a conviction for possession of marijuana to a misdemeanor, punishable by a term in county jail. (Francis, at p. 70.) The court held the amendment should be given retroactive effect under In re Estrada (1965) 63 Cal.2d 740. (Francis, at pp. 75-76.)
The same reasoning applies in this case. As the People concede, "the precise context that arose in Francis—a new law granting discretion to mitigate punishment—seems indistinguishable from the context presented by the recent amendment at issue here," so "this court is bound by Francis." We conclude section 12022.53, subdivision (h) should be applied retroactively and therefore remand for the limited purpose of allowing the trial court to exercise its statutory discretion and determine whether to strike the firearm enhancements.
We note also the Legislature expressed its clear intent that the courts apply section 12022.53, subdivision (h) as broadly as possible. That provision says, "The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." Thus the benefits of the amendment extend, by its plain terms, even "to defendants who have exhausted their rights to appeal and for whom a judgment of conviction has been entered but who have obtained collateral relief by way of a state or federal habeas corpus proceeding." (People v. Arredondo (2018) 21 Cal.App.5th 493, 507.) If the Legislature intended to apply the mitigation of sentencing to final judgments, it clearly intended for it to apply to nonfinal judgments under the principles of In re Estrada and Francis.
III
DISPOSITION
We remand to the trial court so it may exercise its discretion in deciding whether to strike the enhancements imposed based on Miller's use of a firearm during the robbery. We affirm the judgments in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: MILLER
Acting P. J. FIELDS
J.