Opinion
E069315
04-20-2018
THE PEOPLE, Plaintiff and Respondent, v. LARRY DARNELL SHYNE Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael D. Butera, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. FWV900584) OPINION APPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson, Judge. Remanded with directions. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael D. Butera, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Larry Darnell Shyne is serving 50 years to life for first degree murder with a firearm enhancement after being convicted, appealing, and being resentenced for murdering a woman while attempting to rob her in 2008. He now appeals a second time, seeking a remand so the trial court can exercise its sentencing discretion under the newly enacted Senate Bill No. 620 (2017-2018 Reg. Sess.). The People concur that Senate Bill No. 620 is retroactive to this case. We remand so the trial court can consider whether to strike the Penal Code section 12022.53 firearm enhancement. We also order the abstract of judgment corrected to reflect that defendant was convicted and sentenced on count 3 for attempted robbery.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE
This statement of the case is taken from the opinion of this court. (People v. McClane (Jan. 21, 2015, E055088) [nonpub. opn.].) --------
A jury convicted defendant of first degree felony murder (§ 187, subd. (a), count 1), first degree burglary in the presence of another person (§§ 459, 667.5, subd. (c), count 2), and attempted first degree robbery in concert (§§ 211, 213, subd. (a)(1)(A), count 3). The jury found that all three crimes had been committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(c)), that a principal had used a handgun (§ 12022.53, subds. (b) & (e)(1)), that a principal discharged a handgun (§ 12022.53, subds. (c) & (e)(1)), and that a principal discharged a handgun causing death (§ 12022.53, subds. (d) & (e)(1)). In 2012, Shyne was sentenced to prison for a determinate term of 17 years four months, to be followed by two consecutive terms of 25 years to life. The determinate term consisted of six years for count 3, plus 10 years consecutive for the gang enhancement to count 3, plus one year four months consecutive for count 2. The indeterminate term consisted of 25 years to life for count 1 plus a consecutive term of 25 years to life for the handgun enhancement to count 1. The court stayed the gang enhancement to count 2 and the two remaining handgun enhancements pursuant to section 654.
Defendant appealed the sentence. This court ordered each part of the determinate sentence stayed pursuant to section 654. This court also directed the trial court to impose sentence on the gang enhancement to count 1, but otherwise affirmed the judgment. (People v. McClane, supra, E055088.)
On August 18, 2017, the trial court stayed the sentences on counts 2 and 3 as directed, imposed and stayed the sentence for the gang enhancement to count 1 pursuant to section 654, and filed an amended abstract of judgment reflecting the current 50-year-to-life sentence.
Defendant appealed.
DISCUSSION
1. Senate Bill No. 620
Defendant argues, the People concede, and this court agrees, that this case should again be remanded for resentencing to allow the trial court to consider exercising its discretion to strike the firearm enhancement to count 1. (§ 12022.53, subd. (d).) On January 1, 2018, Senate Bill No. 620 went into effect, ending the statutory prohibition on a court's ability to strike a section 12022.5 or 12022.53 firearm enhancement. Section 12022.53, subdivision (h), has been amended to allow a court to exercise its discretion under section 1385 to strike or dismiss an enhancement under section 12022.53 at the time of sentencing or resentencing as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§12022.53, subd. (h).)
The judgment in this case is not yet final. (People v. Vieira (2005) 35 Cal.4th 264, 305-306 [a judgment is final for retroactivity purposes when all direct appeals have been exhausted and a petition for writ of certiorari in the United States Supreme Court has been denied or the time for filing such a petition has been exhausted.].)
Senate Bill No. 620 is retroactive to this case. Under In re Estrada (1965) 63 Cal.2d 740, 742, a court must assume, absent evidence to the contrary, that when legislation reduces punishment for a particular offense, the Legislature intended the legislation to apply to all defendants whose judgments are not yet final on the statute's operative date. Under People v. Francis (1969) 71 Cal.2d 66, 76-77, the possibility of an alternative or lesser punishment to be imposed in the sentencing court's discretion triggers the Estrada rule and requires remand to the sentencing court for reconsideration of the sentence. We therefore remand the matter for the trial court to consider striking the section 12022.53, subdivision (d) enhancement pursuant to sections 1385 and 12022.53, subdivision (h).
2. Correction of Clerical Error
As ante, the parties and this court all agree that the abstract of judgment must be corrected to accurately reflect that defendant was convicted and sentenced on count 3 for first degree attempted robbery, not first degree attempted burglary.
The original abstract of judgment from defendant's sentencing in 2012 correctly states that defendant was convicted in count 3 of "PC 664/211" and it correctly describes the offense as "1st degree attempted robb." At resentencing on August 18, 2017, the trial court stayed the sentence on count 3 and correctly described it as attempted robbery. However, while the amended abstract of judgment correctly refers to the offense as "664/211," it incorrectly describes the offense as "1st degree attempt burg."
Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) An appellate court has the inherent authority to correct clerical errors like this one. (People v. Anthony (1986) 185 Cal.App.3d 1114, 1125.) We therefore order the abstract of judgment corrected to reflect that defendant was convicted and sentenced in count 3 for attempted robbery.
DISPOSITION
The matter is remanded for a new sentencing hearing so the trial court can exercise the discretion set forth in the newly enacted section 12022.53, subdivision (h). The abstract of judgment is ordered corrected to reflect that defendant was convicted and sentenced in count 3 for attempted robbery.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.