Opinion
C080851
03-29-2018
THE PEOPLE, Plaintiff and Respondent, v. SAM PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F00958)
A jury found defendant Sam Perez guilty of premeditated attempted murder, and sustained firearm and gang allegations. It acquitted two codefendants. The trial court sentenced defendant to state prison in November 2015 for an aggregate term of 42 years to life. Preparation of the record and briefing were completed in May 2017.
On appeal, defendant contends the trial court erred in failing to strike the entirety of the testimony of a witness who invoked his privilege against self-incrimination, in its instructions on attempted murder and the effect of voluntary intoxication on an unreasonable belief in self-defense, and in imposing sentence on the gang enhancement rather than increasing his minimum life term for the attempted murder. He also argues the evidence is insufficient to support the gang enhancement under People v. Prunty (2015) 62 Cal.4th 59 (Prunty), because People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) bars admission of certain expert testimony in this case that supports the enhancement because it is case-specific hearsay violating his right to confrontation. At defendant's request, we also took the matter off the oral argument calendar for the purpose of receiving supplemental briefing from the parties on whether an October 2017 amendment to the firearm enhancement statute, effective January 1, 2018, retroactively applies to this pending appeal and requires remand for resentencing.
The People concede the error in sentencing on the gang enhancement, which requires our modification of the state prison term. The People also concede that the amendment to the firearm enhancement applies to defendant's pending appeal, but assert it is not reasonably probable that a remand would benefit defendant. We shall affirm the judgment as modified, and remand to the trial court for resentencing on the firearm enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
This is the unfortunate tale of violence arising out of interactions between rival criminal gangs centered respectively in Northern and Southern California. Defendant does not challenge the sufficiency of the evidence to support his underlying conviction or the enhancement for personal use of the firearm, so in this regard we provide a limited overview of events to give context to his arguments. As for the gang enhancement, we will incorporate those facts in the Discussion.
The victim and four other people were walking up the street to go to a liquor store on a February evening in 2014. The victim's brother was the only one wearing red clothing, a color affiliated with Norteños, the Northern California gang. As a group of four people walked past them, the victim's brother shouted out a call to them declaring this affiliation. The other group, however, shouted out a call indicating affiliation with the Sureños, the rival gang. One of the victim's group cautioned the brother not to make any trouble. The victim's group lingered at the intersection as the other group walked up to the liquor store.
Surveillance footage at the liquor store showed defendant, his brother, and two others present. As they left the store, a private security officer asked them to move on with their open containers; he overheard one of them saying "are we going to take this shit," but did not know if this was in response to the directive to leave.
On their way back down the street, defendant's group reencountered the victim's group walking toward the liquor store. The victim's contentious brother, "being an asshole," again confronted a member of defendant's group over the supremacy of their two gangs even though he was not on his own "turf." Defendant's older brother stepped in and waved a blue bandana in the color of the Sureño gang at the victim's brother. At some point, one of defendant's companions punched the victim's brother in the jaw, and the victim attacked defendant's companion. The victim's brother and defendant's brother began to fight as well. Ultimately, the specific details of this prelude of mutual combat are immaterial to the appeal, because defendant then pulled out a gun and started firing it around him. If we credit the prosecutor's characterization of a surveillance video of the crime, defendant first aimed at where the victim was fighting with the person who attacked the victim's brother, and then aimed at where the victim's and defendant's brothers were fighting. Defendant shot the victim in the stomach and defendant's brother in the neck. As everyone scattered, defendant fired more shots and then ran off.
The bullet exited the victim's armpit, and in addition to repairing his stomach doctors needed to remove his spleen. The bullet lodged in the chest of defendant's brother after entering his neck; doctors released him without the need to perform any surgery (presumably leaving the bullet in place).
Defendant testified. On the day of the shooting, he was hungover. He started drinking again in mid-afternoon at a friend's house. After buying some cannabis, he smoked it with his brother and the third person in the group of four. The fourth joined them. By the time they walked to the liquor store, defendant had drank seven or eight beers and two tequila shots.
When they encountered the other group the second time, defendant feared for his life. Because one of the other group had his hands in his pockets, defendant thought he might have a gun. Given an uncle's experiences at the hands of the Norteños, and concerned for his brother's safety, defendant fired his gun the first time to scare people off. Regardless of how it may have appeared in the video, he was not shooting at the victim. He did not know where he was aiming in the second or subsequent shots. He ran off. He contacted another uncle visiting from Arizona, who drove him there. Defendant lived with the family until his arrest.
DISCUSSION
1.0 The Trial Court Did Not Abuse Its Discretion in Refusing to Strike the Entirety of the Testimony of a Witness Invoking Privilege
1.1 Background
With respect to the circumstances of the attempted murder, defendant's local uncle testified on direct examination that defendant had called him on the night of the shooting, but denied the phone call involved any admission that defendant had shot his brother and was planning on fleeing to Mexico (contrary to the uncle's statements to this effect in a police interview), or any advice on the uncle's part for defendant to surrender. The prosecutor also explored the uncle's long-time affiliation with the Sureños, his familiarity with its customs (including the proscription against cooperating with police), and the gang-related nature of his own tattoos and graffiti, along with items and markings found in the home of his parents where both he and defendant lived at times.
During cross-examination, counsel for a codefendant questioned whether the uncle had ever killed a member of the Norteños. When he answered in the affirmative, the trial court interceded and stated it would appoint counsel for the uncle; it asked counsel if she were going to pursue this subject further. Counsel replied that she did not have any further questions. (She subsequently noted she had not anticipated this response to her question.)
Defendant's attorney then subjected the uncle to lengthy cross-examination (that spanned some 23 pages of transcript), which did not attempt to return to the subject of the uncle's purported homicide. In the course of this cross-examination, the uncle asserted authorship of the gang-related graffiti in their home. As counsel concluded his examination, he made the remark that these were all of the questions he had on this "limited area." After an unreported sidebar with defense counsel, the trial court asked the witness to wait in the hallway. Shortly after, the trial court asked appointed counsel to speak with the uncle about the homicide admissions "because now counsel want to ask him more questions in that area of his knowledge."
Defense counsel thereafter filed a motion seeking to compel a grant of immunity to the uncle so that counsel could fully explore the collateral issue of the uncle's purported criminal activities on behalf of the Sureños, including the homicides, which counsel termed "the heart of his stature as a witness." In the alternative, counsel asked the court to strike the uncle's testimony.
At a hearing on this issue, the court noted that, on advice of appointed counsel, the uncle would refuse to answer any further questions on gang involvement. The prosecution was unwilling to grant immunity. In response to the claim of defense counsel on limitations on his ability to cross-examine, the trial court replied that all three defense attorneys had been free to question the uncle before he was excused on any gang-related subject other than an admission to committing homicide (the broader subject now wholly being foreclosed from further questioning). The court indicated its inclination to strike only the uncle's testimony about homicides, and took the matter under submission. The trial court denied the motion to strike the entirety of the uncle's testimony, but struck the testimony about committing homicides on behalf of his gang and directed the jury to disregard it for any purpose. In closing argument, the prosecutor alluded to the uncle as a gang member defendant would want to impress because he was a close relative.
In a written supplemental ruling before sentencing defendant, the trial court summarized the content of the uncle's testimony, including his taking credit for any gang graffiti found in the home he shared with defendant and making admonitions to defendant to avoid gang involvement. The court then expressed its understanding at the time of defendant's counsel's cross-examination that it had limited questioning only on the subject of the uncle's possible homicides, and did not think defense counsel's reference to "limited" areas of cross-examination was any broader, given the "expansive" nature of his cross-examination of the uncle, and defense counsel had never taken any opportunity to request a clarification from the court of the parameters of its ruling. It found that defense counsel had nonetheless elicited exculpatory testimony and covered a significant amount of gang-related topics. Moreover, defense counsel failed to make any offer of proof of specific subjects that he felt precluded from asking the uncle. Given that the homicides were a collateral matter (at the time of the court's limitation on questioning) that would have generated the dreaded "series of mini-trials" only to the end of credibility, it was sufficient to strike only that testimony.
Defendant intimates that this was ineffective assistance of counsel. For purposes of direct appeal, we can assume that regardless of defense counsel's expressed need for further questioning of the uncle in the abstract, he did not in fact have any particulars in mind on which to base further questioning. (People v. Pope (1979) 23 Cal.3d 412, 426.) We certainly do not reverse a verdict on the basis of speculative extrajudicial facts. (People v. Ayala (2000) 23 Cal.4th 225, 266-268.) We thus reject this perfunctory assertion of ineffective assistance. (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467.)
1.2 Analysis
When a witness refuses to submit to cross-examination, the usual procedure is to strike the direct testimony of the witness, the trial court having the discretion to decide the extent. (People v. Noriega (2015) 237 Cal.App.4th 991, 1000-1001.) "[T]here is solid support, both judicial and scholarly, for the proposition that when one or two questions asked during cross-examination are at stake and those questions relate to a collateral matter such as [a] nonparty witness's credibility, the trial court need not strike the entirety of that witness's direct testimony." (People v. Sanders (2010) 189 Cal.App.4th 543, 556.)
In his reply brief, defendant for the first time addresses the standard of review on this issue, contending it is a matter for our de novo determination because it implicates his constitutional rights. The argument is forfeited. (Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061, fn. 7; People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) Abuse of discretion is the default standard of review for any evidentiary ruling of a trial court on admissibility of evidence. (People v. Thompson (2016) 1 Cal.5th 1043, 1120.) It is well established that it applies to this issue.
This is not a case where cross-examination was entirely precluded. As the trial court properly noted, before the uncle was excused as a witness and subsequently invoked his privilege against self-incrimination, all defendants had the opportunity to question him fully on any subject save that of participating in homicides, and defense counsel never identified any subject from which his interpretation of the court's limitation on questioning precluded him from addressing. The uncle was at best a peripheral witness in this matter, uninvolved in the central issue of the shooting and cumulative of other gang evidence, so questioning him about his personal involvement in homicides or other unspecified criminal participation in gang activities in order to explore the validity of his trial persona as a gang member is utterly collateral. We do not find any abuse of discretion in the trial court's limited strike of the uncle's testimony. Given this limited restriction on the cross-examination of the uncle, defendant cannot establish a violation of the right to confrontation, and therefore we do not need to consider any prejudice from allowing the remainder of the uncle's testimony to stand.
2.0 The Pattern Instruction on Attempted Murder Correctly Conveys the Mental State at Issue
Defendant argues the pattern jury instruction on attempted murder is incorrect, because it references only intent to kill as an element and not the concept of express malice—the intent to kill unlawfully, and therefore negated his defense of a lack of express malice when he shot at the victim intentionally. This argument fails at two levels.
In the first place, the pattern instruction is a correct statement of the law. "To instruct on the definition of malice is unnecessary and confusing because [the pattern instruction] is a complete and adequate instruction." (People v. Ramos (2011) 193 Cal.App.4th 43, 47; cf. People v. Lawrence (2009) 177 Cal.App.4th 547, 557 [which finds the instruction "correctly states the law" with respect to another issue].) Defendant does not acknowledge this authority even after the People cited it. (RB 41) As the instruction is a correct statement of the law, trial counsel's failure either to object or offer a modification of it forfeits the issue on appeal. (People v. Lee (2011) 51 Cal.4th 620, 638.)
Furthermore, the jury resolved the question of malice adversely to defendant in the instructions on heat of passion and unreasonable self-defense, because in finding him guilty it necessarily found an intent to kill in the absence of both heat of passion or unreasonable self-defense. (See People v. Breverman (1998) 19 Cal.4th 142, 189 (dis. opn. of Kennard, J.) ["complete definition" of malice is intent to kill plus absence of both heat of passion and unreasonable self-defense].) Though defendant asserts there is a flaw in these instructions that precludes relying on them as reflecting a finding of malice, this purported flaw is itself immaterial (as we next determine) in light of the finding of premeditation. Therefore, even on the merits defendant has failed to establish instructional error.
3.0 Any Error in the Pattern Instruction on the Effect of Voluntary Intoxication With Respect to Unreasonable Self-defense (or Heat of Passion) Was Harmless
The trial court agreed to instruct the jury with the unmodified pattern instruction stating, in accordance with Penal Code section 29.4, that in considering evidence of voluntary intoxication, the jury could decide whether this affected defendant's intent to kill or the degree to which he acted with premeditation, and whether it affected his intent to aid or abet criminal gang conduct. However, the instruction precluded consideration of this evidence "for any other purpose."
Undesignated statutory references are to the Penal Code.
For reasons we will not belabor because the issue is under review in the Supreme Court, People v. Soto (2016) 248 Cal.App.4th 884, review granted October 12, 2016, S236164, argued and submitted on February 7, 2018 (Soto) found that section 29.4 allowed the consideration of impairment in connection with the issue of express malice, and the defense of unreasonable self-defense is premised on the absence of express malice. As a result, an instruction must expressly allow consideration of any evidence of voluntary intoxication in evaluating a claim of unreasonable self-defense, which the pattern instruction on its face does not do, and therefore a trial court has the duty to modify it in this respect if it decides to instruct on voluntary intoxication. (Id. at pp. 887-888, 896-900.)
We will assume for sake of argument that this decision is correct, for which reason we do not discuss the People's criticisms on the merits. They correctly establish that the error was not prejudicial under California law in this case. We do not find convincing defendant's claim that we must evaluate prejudice under the more exacting federal constitutional standard, given the persuasive analysis to the contrary in Soto. (Soto, supra, 248 Cal.App.4th at pp. 901-902, review granted.)
The People allude to the absence of any testimony of impairment on defendant's part (beyond the quantities of intoxicants ingested), though this argument is belied as a result of the trial court's decision to instruct on involuntary intoxication. The People also point out the detailed nature of defendant's recollection of the events of the incident in his testimony as being inconsistent with his claim of impairment. We agree this might make it highly unlikely that a reasonable jury would have accepted a defense premised on impairment. Even more telling, however, is the People's argument that the challenged instruction did expressly allow the jury to consider any evidence of his impairment in connection with whether defendant acted with premeditation, and its verdict necessarily rejected that hypothesis. It would split hairs to assert that defendant was sober enough to premeditate the shooting but was too impaired to be reasonable about the basis for premeditating the shooting. We therefore decline to find a reasonable probability that defendant would have prevailed in the absence of the purported error in the instruction.
4.0 The Evidence of Gang Participation Was Sufficient to Support the Enhancement
4.1 The Decision in Prunty
Departing from the majority view previously prevailing (including our own decision in Prunty), the Supreme Court concluded that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra, 62 Cal.4th at p. 71.)
We need to be clear about the ratio decidendi of Prunty. The opinion described our opinion as upholding a gang enhancement based solely on evidence that a defendant (who declared his "identification" with the larger association) espoused being part of a particular subset, and shouted the name of the larger association in a confrontation with rival gang members (as well as slurs for the rivals commonly used among those affiliated with the larger association); a different subset was responsible for the predicate offenses at issue, and the only evidence of the connection among subsets was shared gang signs, symbols, colors, and names. (Prunty, supra, 62 Cal.4th at pp. 67, 68-69, 72, 76, 83-84.) "[T]he Court of Appeal reasoned[ that] evidence of 'a common name . . . and common identifying signs and symbols . . . ' coupled with the existence of 'a common enemy . . . ' is sufficient to show that a criminal street gang exists." (Id. at p. 70.)
Prunty concluded this was not sufficient. There must be proof of more than merely "a common ideology that appears to be present among otherwise disconnected people." (Prunty, supra, 62 Cal.4th at p. 76, italics added.) Prunty offered "illustrative examples" of the manner in which to prove that disparate subsets are in fact connected such that the actions of one can be attributed to another. (Ibid.) Even absent a formal hierarchy, different subsets can be connected if controlled by the same "hub" entity through leaders in the subset who answer to it, if the subsets provide financial support to it, or if they are subject to similar rules of conduct that the larger organization prescribes. (Id. at p. 77.)
4.2 Factual Background
Defendant filed a motion for new trial premised on the postverdict decision in Prunty. He contended the evidence supporting the gang enhancement was insufficient under Prunty's criteria. Specifically, he argued, "The prosecution offered generalized notions of some collective group known to law enforcement as the Sureños but failed to offer specific evidence that the group defendant Perez allegedly intended to [benefit specifically] with his conduct was the same group that committed the predicate offenses." (First italics added.) Neither in the trial court nor on appeal did defendant ever suggest that his own connection with the larger gang lacked sufficient evidence in support. In our following summary of the facts, we thus omit the extensive details in this regard appearing in the briefs.
Defendant's brief on appeal frames the issue as "[t]he prosecution's evidence indicated that the charged crime was associated with [a] subset of the Sureño gangs. However, the prosecution's expert did not know what particular Sureño subset was associated with either of the predicate crimes the prosecution attempted to prove." As the trial court noted, the prosecution in fact did not attempt to connect defendant's crimes with any particular subset, and indeed the verdict form specifies only the larger gang.
In a lengthy written ruling, the trial court denied the new trial motion. In doing so, it made an independent evaluation of the evidence on the issue at trial. Defendant does not argue the factual basis of the ruling is erroneous, so we summarize its findings.
The gang expert was a detective assigned to the gang unit in 2012, specializing in south Hispanic gangs in Sacramento. In her patrols over the course of four years, she routinely had contact with hundreds of these gang members in various capacities (whether as victims of crimes, arrestees, or witnesses), as well as their family members and other victims or witnesses. Through these, she learned the gang culture. She also underwent numerous training courses on the subject.
Immaterial for our purposes, she concluded that defendant's postings on social media indicated an association with the larger gang, the Sureños. Defendant also admitted this association to officers on more than one occasion, and bears a tattoo that none but gang members could display without consequence. The gang expert identified the subset of a codefendant, and provided background information about another subset, but did not specify one for defendant.
The genesis for the Norteños and Sureños were two rival prison gangs. The street gangs act as the outside operatives for these two gangs. A prison gang is the "top" of its gang structure. It controls the operations to maintain the overall strength and unity. A prison leader of the gang will go so far as to direct street operatives to back off from gang activities if they draw too much attention from law enforcement, because an arrested gang member is not going to be able to generate revenue for the gang.
On a daily basis, the expert reviews all the crimes committed in south Sacramento. As a result, she is familiar with predicate crimes occurring in the past involving members of the gang. Among these were a 2013 assault with a deadly weapon that two members of the Sureños committed; she did not identify any particular subset. Another assault with a deadly weapon in 2011 involved a member of the Sureños; again, she did not specify any particular subset.
All members pay "taxes" to the prison gang as part of the overall structure and hierarchy. She derives this knowledge from confidential sources. She therefore declined to state whether she had specific information about whether the two local subsets she had been discussing paid taxes to the prison gang. She did not have any evidence that a codefendant in particular paid taxes, and was not asked if there was evidence that defendant in particular paid taxes.
The trial court concluded the present case was unlike Prunty because the evidence did not establish that either the gang members who committed the predicate offenses or defendant were members of any particular subset. It simply established associations with the larger entity. However, to the extent Prunty applied, the testimony about all subsets paying taxes to the prison gang was sufficient to establish the necessary connection under Prunty.
"[T]he prosecution did not present enough evidence to show defendant acted to benefit [either of the local subsets described in testimony] or specifically intended to assist with the criminal conduct of [either] subset . . . ; there was proof beyond a reasonable doubt that the shooting was for the benefit of or in association with Sureños and that defendant [acted] with the specific intent to promote, further[,] or assist the Sureño criminal street gang."
4.3 Analysis
Other than summarize the evidence and state general legal principles, the only specific challenge to the sufficiency of the evidence that defendant articulates is that "[t]he prosecution attempted to link all Sureño . . . subsets together through [the expert's] testimony that all Sureño . . . subsets pay taxes to [the prison gang]. However, [defendant] submits that [this] testimony may not be considered against him" under the holding in Sanchez, supra, 63 Cal.4th 665. "And, when this testimony is removed from the evidence, there [does not remain any] sufficient evidence to link the [predicate] crimes . . . and the crime in this case."
The Sanchez issue is something of a red herring if this case rested on distinct subgroups. In that circumstance, generic testimony about structure and duty to pay tribute is insufficient to establish a connection between subgroups without testimony that these strictures in fact apply to the particular subgroups at issue. (People v. Nicholes (2016) 246 Cal.App.4th 836.) In Nicholes, the expert provided background testimony about the structure under which a prison gang directed its street operatives, acting through subgroups, and the obligation for street members to make payment to the prison gang. The defendant was affiliated with a Sacramento subgroup; the predicate offenses, on the other hand, occurred in a different county. (Id. at pp. 842-843, 845-846, 847.) We found this was a classic Prunty situation, and the generic testimony about the structure and the duty to make payments was an insufficient connection without proof tying these to the particular subgroups at issue. (Nicholes, at pp. 846-847, 848, citing People v. Williams (2008) 167 Cal.App.4th 983, 988 [must testify about actual control over subgroup rather than just background testimony about such control existing].) Thus, admission of the generic testimony in the present case about payments would be immaterial if Prunty applied because it would be without any legal weight.
Similarly, People v. Ewing (2016) 244 Cal.App.4th 359 involved proof via expert testimony about the structure and rules governing the relationship between a prison gang and its street operatives. The expert noted that the members of the street gangs were required to pay a 25 percent tax to the prison gang on pain of assault or death. (Id. at p. 367.) The prison gang directed operatives from elsewhere to gather in Redding to establish territory. (Id. at p. 368.) We did not believe Prunty applied because the prosecution theory did not involve different subsets but gang members all working at the direction of the prison gang to establish territory in Redding; the predicate offenses were committed by some of these participants. (Ewing, at pp. 372-373.) Arguendo, we found that if Prunty applied, the background testimony about the manner in which the prison gang imposed structure and expected payments, and the testimony about the directive for the individual gang members involved to come to Redding, was sufficient to satisfy Prunty. (Ewing, at pp. 374-376.) It is not clear that the generic testimony about structure and tax obligations would be sufficient after Nicholes to satisfy Prunty absent the evidence of the actual directives from the prison gang to its street members to acquire the territory, which again means the challenged testimony in the present case would be without any legal weight.
Nicholes, in which the author of Ewing participated, did not address Ewing.
However, as in Ewing, the expert testimony in the present case was not founded on the actions of separate subgroups (notwithstanding defendant's repeated characterizations to the contrary) and instead described the prison gang's control over individual members. The expert also testified about the allegiance of all individuals to the larger gang, not any particular subset, a significant distinction from Prunty. (People v. Vasquez (2016) 247 Cal.App.4th 909, 926.) Finally, predicate acts involved members described as associated with the larger gang and not any particular subset, which we have found can be attributed to a defendant without "run[ning] afoul of Prunty." (Id. at p. 927.) Since Prunty does not apply, there was not any need under Nicholes to establish a more specific connection between the prison gang and the members who committed the predicate acts or the prison gang and defendant beyond generic testimony about the manner in which the prison gang maintained control over street operatives.
But even in this context, the Sanchez claim is immaterial. If the evidence regarding the payment of tribute to the prison gang were excluded, we do not find it reasonably probable that the jury would have failed to sustain the enhancement in light of the expert testimony about the overall structure of the larger gang, on which basis the jury could reasonably find that both the perpetrators of the predicate acts and defendant were acting with specific intent to promote the larger gang. We can thus reject the argument without needing to reach the merits of the Sanchez claim.
5.0 The Trial Court Should Have Lengthened Defendant's Minimum Life Term Rather Than Enhance His Sentence for Gang Participation
The trial court sentenced defendant to an indeterminate term of seven years to life for the premeditated attempted murder, and a consecutive indeterminate term of 25 years to life for the firearm enhancement, for an aggregate indeterminate term of 32 years to life. It then imposed a determinate term of 10 years for the gang enhancement.
Under section 186.22, the ordinary punishment for the gang enhancement is an additional term of 10 years. However, where the principal term involves punishment with an indeterminate life term, an alternate punishment prescribes a minimum term of imprisonment of 15 years. (§ 186.22, subd. (b)(1)(C) & (5); see People v. Montes (2003) 31 Cal.4th 350, 352, 354.)
We must therefore modify the unlawful sentence, as the People concede. We shall strike the determinate term for the gang enhancement and impose a minimum term of 15 years for the premeditated attempted murder.
6.0 Resentencing Is Necessary for the Firearm Enhancement
In sentencing defendant, the trial court remarked that aggravating factors were present in that the offense indicated it was the result of planning, and involved violent conduct presenting a serious danger to society. In the court's view, "this was a cold, calculated act" and "[t]he only reason why you have any chance of getting out of prison some day is because [the victim] is not dead. . . . [Y]ou tried to kill him . . . because you wanted to elevate your position in the . . . gang; there is no doubt in my mind about that." The court continued "[r]egarding Penal Code section 12022.53[, subdivisions] (b), (c) and (d) and those enhancements, pursuant to [section] 12022.53[, subdivision] (f), I must impose the enhancement that carries the greatest term of imprisonment; that is 25 years, an indeterminate term, and that's pursuant to the [section] 12022.53[, subdivision] (d) enhancement."
Effective January 1, 2018, the Legislature amended section 12022.53, which now provides in pertinent part, "The court may, in the interest of justice . . . and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)
Defendant asserts he is entitled to retroactive application of the amendment. The People do not dispute the retroactive application of the amendment (for which reason we dispense with further analysis beyond citation to the controlling cases of In re Estrada (1965) 63 Cal.2d 740 and People v. Francis (1969) 71 Cal.2d 66). However, in light of the trial court's remarks quoted above, the People contend the trial court would never exercise its discretion in favor of striking or dismissing the firearm enhancement.
The discretionary power is for the trial court to exercise in the first instance and not this court (Collateral Loan & Secondhand Dealers Assn. v. County of Sacramento (2014) 223 Cal.App.4th 1032, 1041, fn. 7) unless the operative facts compel a result as a matter of law. In sentencing, the trial court did not have any other discretionary decisions to make from which we might discern its thinking, and the record is devoid of any express statement that the trial court would have declined in any event to exercise its discretion in defendant's favor. On the other hand, the record is not entirely silent, as the court identified aggravating factors and the premeditated nature of the crimes for the benefit of gang stature. But it also observed that the 25-year enhancement was mandatory. "Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) In light of the newly conferred discretion on firearm enhancements, we remand to the trial court to permit it to exercise its informed discretion.
DISPOSITION
The determinate term of 10 years for the gang enhancement is stricken. The life term for the premeditated attempted murder is modified to include a minimum term of 15 years. As so modified, the judgment is affirmed. The matter is remanded for the trial court to consider exercising its discretion to strike or dismiss the firearm enhancement. Upon resolution of that matter, the trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
BUTZ, J. We concur: ROBIE, Acting P. J. DUARTE, J.