Opinion
F074220
09-26-2018
THE PEOPLE, Plaintiff and Respondent, v. CLINTON CURTIS WILSON, Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Doris A. Calandra and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1431364 & 1420759)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Doris A. Calandra and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Clinton Curtis Wilson appeals from convictions at the conclusion of a jury trial for first degree murder (Pen. Code, § 187, subd. (a)) and arson (§ 451, subd. (a)). The jury also found true an enhancement alleging that Wilson personally used a firearm in causing the victim's death. (§ 12022.53, subd. (d)). The trial court sentenced Wilson to a sentence of 25 years to life for murder, to a consecutive sentence of 25 years to life for the gun use enhancement, and to a consecutive term of seven years for arson.
Subsequent statutory references are to the Penal Code unless otherwise stated.
The court also sentenced Wilson to a concurrent sentence of three years for an unrelated robbery conviction in another case (case no. 1420759).
Wilson relied on a theory of self-defense. The lead detective investigating the case testified that in his expert opinion, given the circumstances of the case, Wilson did not act in self-defense. Wilson contends his trial counsel was ineffective for failing to object to the detective's testimony. We do not find that Wilson's trial counsel was ineffective and affirm his convictions. Wilson contends and the People agree there were errors in the trial court's calculation of the restitution and parole revocation fines and each fine should be reduced by $100. In supplemental briefing, Wilson argues the case must be remanded for the trial court to consider whether to strike the gun use enhancement due to amendments to section 12022.53 pursuant to Senate Bill 620. Because we cannot discern how the trial court would have exercised its discretion to strike the gun use enhancement had such discretion existed at the time of sentencing, we vacate Wilson's sentence and remand for a new sentencing hearing.
FACTS
On May 4, 2011, Wilson lived in a trailer parked in the driveway of an unoccupied house on John Street in Modesto where he was doing odd jobs for the owner. Weeks before May 4, Guadalupe Tubera stole marijuana and a laptop from Wilson, upsetting and angering him. Wilson told detectives Tubera admitted to stealing these items.
Subsequent references to dates are to dates in 2011.
A redacted video of Wilson's interrogation by sheriffs' deputies was played for the jury. A transcript of the deputies' questions and Wilson's responses is included in the record on appeal.
Late in the morning on May 4, Wilson and Amanda Keith were in his trailer. Wilson's friends David Luke and Tenee Cardoza drove to the property in Cardoza's truck. Luke walked to the trailer while Cardoza remained in the truck. Cardoza saw Luke and Wilson exit the trailer and walk toward the house. Tubera arrived carrying a chainsaw but Cardoza could not remember if he took it into the house or left it at the door. Tubera entered the house first, followed by Wilson and Luke. Cardoza was unsure whether Tubera had anything in his hands when he entered the house.
Cardoza heard two or three gunshots close together. As she heard the first shot, Cardoza saw Luke run out of the house. Luke jumped into Cardoza's truck and Cardoza drove away. Keith was in bed inside the trailer when she heard three gunshots one after another. Wilson came back to the trailer and told Keith they had to leave. As Keith exited the trailer, she saw Wilson talking to someone through the open window of a truck parked in front of the neighbor's house. Keith stayed out of sight until she heard the truck drive away, and then entered the car to wait for Wilson. She saw Wilson exit the house. He then got into the car with Keith and drove away.
Wilson and Keith arrived at the motel where Nicole Pappas was living around noon. Pappas described Wilson as a platonic friend with whom she shared "[c]rystal meth." Wilson told Pappas and Keith there had been an altercation at the John Street house and he had shot the guy he believed had stolen his property. Wilson had previously told Pappas about the theft which had occurred around Easter, and he was still upset and frustrated over it. Wilson had also told Pappas he planned to meet the person, discuss what happened, and try to get his marijuana returned. Wilson did not tell Pappas the other person had a chain saw and did not say he was acting in self-defense when he shot the man. Wilson said he covered the body with construction debris and set it on fire.
Wilson got a room for himself at the same motel, but put it in Pappas's name. Pappas thought Wilson used her name because he had warrants. Wilson told the two women that he started a fire in the house using construction debris but was not sure the fire "took." Pappas offered to go to the house, check on the fire, and restart it if necessary. Pappas got a ride to the house and opened a side door. It took her about 15 minutes to reach the house from the motel. When she looked inside the house, she saw a pile of burnt debris in the middle of the floor. She lit a paper bag and threw it on the debris but did not wait to see if the fire caught.
On the way back to the motel, Pappas saw fire trucks heading toward the house. Back in the motel room, Pappas and Keith both saw Wilson using a laptop computer to check for news of a fire on John Street. Pappas knew Wilson had a gun but did not see it; Keith saw Wilson carry a gun into the bathroom. Keith explained that she heard Wilson admit to Pappas that he shot Tubera and tried to set the body on fire. Keith could not remember whether Wilson said he acted self-defense or that Tubera attacked him with a chainsaw.
On May 6, sheriff's deputies found Wilson in a motel room in the Sonora foothills and brought him back for interrogation.
Fire Investigator Edward Sears was dispatched to the John Street house fire. A colleague told Sears there had been a small fire in the room where Tubera's burnt body was found face down with an unattached door on top of him. Tubera had burns on his head, arms, and down his back. Tubera also had bullet wounds. The origin of the fire was the blackened pile of debris. Debris from the pile tested positive for the presence of gasoline and the fuel cap for a gasoline container was found at the scene. Sears concluded the fire was caused by arson to conceal a crime and the fire was started using an accelerant. The fire could not have been caused by igniting a rolled up paper bag and setting it on the debris pile.
Forensic pathologist Dr. Sung-ook Baik, who had performed over 18,000 autopsies, performed an autopsy on Tubera the morning of May 5. Though Tubera's head was partially charred, a bullet wound to the top of his head was still visible. The bullet entered the front of Tubera's skull with a downward trajectory toward the back. There was a second bullet wound to the left side of Tubera's neck that also travelled downward through the left first rib, left lung, esophagus, diaphragm, liver, right lung, and exited the chest through the sixth right rib. Both bullet wounds were fatal. Tubera could have lived 10 to 20 minutes after suffering the bullet wounds.
There was a very small amount of mucous-trapped soot in the trachea leading into Tubera's lungs that Dr. Baik opined was caused by the inhalation of smoke from a fire. Tubera had fourth degree burns on his body. A toxicology report on Tubera's blood revealed a high concentration of methamphetamine at a potentially toxic level. Tubera's head and neck were too badly burned to determine whether there was stippling, or powder burns, around either bullet wound. Tubera was shot first and then burned.
Detective Darwin Hatfield interrogated Wilson; a video recording of that interrogation was received in evidence. After asking some preliminary questions, Hatfield confronted Wilson with Luke's account of events in which Luke said Wilson shot Tubera for no reason. Wilson simply replied, "Hmm." When Hatfield asked Wilson to give his side of the story, he asked Wilson if he was a cold blooded killer. Wilson said nothing about self-defense or protecting himself. Hatfield told Wilson that Luke had thrown him under the bus and again asked Wilson if he wanted to explain what happened. Wilson replied he did not know if he should say anything, and asked Hatfield if the chainsaw was still there. Hatfield said it was. Wilson said: "I didn't think [Luke] was in the room," and added, "I'm not go[ing] out and shoot[ing] the mother fucker cause he I mean that's fucking I'm not like that." Later, Wilson said: "Yeah, [Tubera] came at me with a fucking chainsaw."
Hatfield testified at the preliminary hearing that Wilson was given his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, appeared to understand those rights, and elected to answer Hatfield's questions.
Wilson said Tubera had stolen a half pound of marijuana from him. Wilson heard the word on the street was that Tubera was looking to get a gun, causing Wilson to believe Tubera was after him. Wilson started carrying his own gun. Armed with guns, Wilson and Luke confronted Tubera about a week before the shooting incident and Tubera returned some of the marijuana.
On the day of the shooting, Wilson was inside the house working when Tubera showed up. According to Wilson, Tubera attacked him with a chainsaw. Tubera swung the chainsaw in the off position at Wilson coming within inches of him. Wilson said he backed up and shot Tubera three times to protect himself. Wilson did not want to get hit with the chainsaw. There was no one else inside the house. Wilson said he picked up two discharged bullet casings on the floor before leaving. Wilson said he later hid his gun in the toilet tank in a motel room.
Hatfield said he found one discharged bullet casing in the house. He also found a loaded semiautomatic firearm in the toilet tank of Wilson's motel room.
Wilson said he threw carpet and debris over Tubera's body only to hide it. Wilson explained he did not call law enforcement because he "got spooked." When pressed further, however, Wilson admitted he panicked and started the fire.
Hatfield opined Tubera was shot execution style while on his hands and knees on the ground because the trajectory of the bullets struck the top of Tubera's head and neck, taking a downward path. Also, Tubera was five feet, six inches tall, and Wilson was five feet, ten inches tall, making the two men similar in height. Either Wilson had to be standing on a ladder when he shot Tubera to achieve the angles of the bullet wounds, or Tubera had to be on his knees. There was no ladder in the house. The chainsaw was about four feet long, weighed 20 to 30 pounds, and had an attached power cord. Hatfield acknowledged that even if the chainsaw was not "on," the blades could injure someone struck with it. Hatfield further acknowledged that someone could use a weapon, even lethal force, to protect himself from a person approaching them with a chainsaw. Hatfield explained that chronic methamphetamine users are more likely to become paranoid and violent, although the effect of methamphetamine varies from user to user.
Wilson described Tubera as swinging the chainsaw at him from side to side but did not indicate Tubera was bent over as he had to have been when he was shot. During redirect examination by the prosecutor, Hatfield was asked if he had found evidence in past cases that supported a suspect's claim of self-defense. Hatfield explained that people claiming self-defense usually assert it immediately. Hatfield had never investigated a case where the claim of self-defense came later during questioning. On redirect examination, Hatfield said it was possible Tubera slipped or stumbled on debris in the room. On further redirect examination, the prosecutor asked Hatfield without objection by defense counsel whether he had an opinion concerning whether Wilson acted in self-defense. Hatfield replied that he believed the shooting was not in self-defense because of the inconsistencies in Wilson's statements, the fact they had to find him rather than his coming to investigators when the incident happened, and his use of fire to cover up the crime scene.
On further recross examination, defense counsel asked Hatfield whether Wilson had said he was scared. Hatfield replied affirmatively. When defense counsel asked if scared people do "silly things," Hatfield replied it depended on the person; some people will and some will not. When defense counsel asked Hatfield if he had enough information about Wilson to make a judgment call as to whether Wilson acted reasonably or not, Hatfield said Wilson's conduct in the aftermath of the shooting was not normal.
DISCUSSION
Alleged Ineffective Assistance of Counsel
Introduction
Wilson contends his conviction for first degree murder must be reversed because his trial counsel was ineffective for failing to object to a question from the prosecutor seeking the lead detective's opinion as to whether Wilson acted in self-defense when he shot the victim. Wilson argues this was an issue concerning his guilt for the jury to decide, and not a proper subject of expert opinion. Wilson argues defense counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and was prejudicial.
The facts of this case are distinguishable from the authorities Wilson relies upon to support his argument that the expert's opinion improperly included the issue of his guilt. The expert's opinion was based on properly admitted physical evidence. The prosecutor's question, however, was in an improper form because the prosecutor did not phrase it as a hypothetical, and arguably defense counsel should have objected to the form of the question. We find, however, that any alleged deficiency in trial counsel's representation of Wilson was not prejudicial given the strength of the People's case.
Appellate Review of Assertions of Ineffective Assistance of Counsel
Defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, defined as performance below an objective standard of reasonableness, but also prejudice. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re Hardy (2007) 41 Cal.4th 977, 1018 (Hardy).) A reasonable probability is one sufficient to undermine confidence in the outcome. The question is not one of outcome determination but whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (Hardy, supra, 41 Cal.4th at p. 1019.)
There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, there could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions that are futile. (People v. Price (1991) 1 Cal.4th 324, 387-387.)
On direct appeal, reversal of a conviction for ineffective assistance of counsel will occur only if: (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there could be no satisfactory explanation for counsel's choices. All other claims of ineffective assistance of counsel are more appropriately resolved in a habeas corpus proceeding. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Expert Opinion on Questions of Guilt or Innocence
Wilson contends that when the prosecutor asked Hatfield if he thought Wilson acted in self-defense, the question was tantamount to asking whether Wilson was guilty of murder. Because there was no dispute that Wilson shot Tubera, the central issue before the jury was whether he committed first degree murder or acted in self-defense. Wilson argues that Hatfield's answer to the prosecutor's question expressed Hatfield's belief as to how the case should be decided. Wilson further argues defense counsel's failure to object to the question or to Hatfield's answer cannot be justified as sound trial strategy.
A witness may not express an opinion on a defendant's guilt. The reason for the rule is not because guilt is the ultimate issue of fact for the jury; opinion testimony often goes to the ultimate issue. Opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. The trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)
Evidence Code section 801 permits expert opinion testimony on subjects "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) An expert may not give testimony that amounts to an expression of his or her general belief as to how the case should be decided. (People v. Chavez (2018) 22 Cal.App.5th 663, 680.) Generally, an expert may render opinion testimony on the basis of facts given in a hypothetical question that asks the expert to assume their truth. It is not necessary that the question include a statement of all the evidence in the case. The statement may assume facts within the limit of the case. The expert's opinion may not rest on guess, surmise, or conjecture. It is improper for a hypothetical question to call for an opinion without adequate foundation. (People v. Moore (2011) 51 Cal.4th 386, 405 (Moore).)
Although it is a jury's duty to determine whether the prosecution has carried its burden of proof beyond a reasonable doubt, opinion testimony may encompass ultimate issues within a case. Evidence Code section 805 provides that "[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." An expert has not improperly expressed an opinion, based on the expert's experience and training in evaluating records of hundreds of crime scenes, that he believed multiple crimes were committed by the same person. Such testimony does not direct a verdict, especially where the jurors were instructed that they were the exclusive judges of credibility and were not bound by an expert's opinion. (People v. Prince (2007) 40 Cal.4th 1179, 1226-1227.)
In People v. Brown (1981) 116 Cal.App.3d 820, 827-829 (Brown), a police expert testified that the defendant was employed as a runner for a heroin dealer. Because the jury instructions informed the jury that a runner was guilty of a crime, the expert's testimony was improper. In People v. Torres (1995) 33 Cal.App.4th 37, 47-48 (Torres), a police expert testified that the facts of the case constituted robbery. This testimony was found to be inadmissible because it amounted to an assertion that the defendant committed the crime charged. In People v. Killebrew (2002) 103 Cal.App.4th 644, 658 (Killebrew), criticized for condemning the use of hypothetical questions in People v. Vang (2011) 52 Cal.4th 1038, 1049, this court reversed a defendant's conviction for conspiracy to possess a handgun by an active member of a criminal street gang because the gang expert was permitted to testify as to the subjective knowledge and intent of the defendant. The expert's opinion was the only evidence offered by the People to establish the elements of the crime.
In People v. Leonard (2014) 228 Cal.App.4th 465, 471-472 (Leonard), a jury convicted the defendant of pimping and pandering as well as other offenses. A detective testified as an expert on pimping and pandering, classifying two different kinds of pimps. The expert testified that based on the evidence, Leonard began as a nonviolent pimp and later became a violent pimp. The expert added that the defendant engaged in patterns of behavior in pimping, manipulation, and control of women. (Id. at pp. 492-493.) The court in Leonard analogized its facts to Brown and concluded the jury was as qualified as the detective to determine if the defendant was a pimp and if so, of what variety. The jury was instructed, however, with CALCRIM No. 332, which explained it need not accept the detective's testimony as true or correct. The improper testimony was also brief and the evidence against the defendant was overwhelming. Leonard concluded that any error was not prejudicial. (Id. at p. 493.)
In Brown, Torres, Killebrew, and Leonard, the primary evidence of the defendant's mental state or whether his conduct constituted a crime was the expert witness's opinion evidence. There was little if any evidence outside of the expert opinion evidence to support key elements of the charged offenses. The error in Brown was exacerbated by an incorrect jury instruction that, coupled with the expert's testimony, essentially directed a verdict. Unlike the cases finding improper expert opinion, here Hatfield's opinion on whether Wilson was acting in self-defense was based on physical evidence found at the scene of the shooting and arson. Evidence showing Wilson did not act in self-defense included the victim's bullet entry wounds which were inconsistent with Tubera, who was four or five inches shorter than Wilson, swinging a chainsaw at Wilson. Since understanding the meaning of the physical evidence is outside the normal experience and knowledge of most jurors, Hatfield's expertise was useful in interpreting the state of the evidence and permissible under Evidence Code sections 801 and 805.
However, even if Hatfield could give opinion testimony concerning the issue of self-defense, the prosecutor's question to Hatfield was improperly presented because it was not asked as a hypothetical. (Moore, supra, 51 Cal.4th at p. 405.) The effect of this was to make the prosecutor's question more like the improper expert opinions in Brown, Torres, Killebrew, and Leonard. We will therefore assume arguendo that Hatfield's opinion testimony was improper as presented to the jury and further assume trial counsel was ineffective for failing to lodge a timely objection and had no tactical reason for failing to do so. Even with these assumptions, Wilson has failed to establish prejudice due to his counsel's failure to object to Hatfield's testimony.
Prejudice
We initially note that, as in Leonard, the jury here was instructed with CALCRIM No. 332 that it did not have to accept Hatfield's expert opinion as true or correct. (Leonard, supra, 228 Cal.App.4th at p. 493.) The court also instructed the jury with CALCRIM Nos. 105 and 226, which explained the jury's duty to decide the credibility of witnesses and the issues based on its independent assessment of the evidence. The jury is presumed to understand and to follow the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Forrest (2017) 7 Cal.App.5th 1074, 1083.)
There was substantial evidence of Wilson's state of mind prior to the shooting. Multiple witnesses testified that Wilson remained angry at Tubera, believing Tubera had stolen his property a month before the incident. Wilson himself admitted obtaining a gun in advance of the shooting. Wilson and Luke, each armed with firearms, confronted Tubera about a week before the shooting to take back marijuana Wilson thought Tubera had stolen from him. Wilson's conduct prior to the shooting showed he harbored malice toward Tubera and is consistent with planning and premeditation.
Wilson's actions after shooting Tubera were inconsistent with someone acting in self-defense. Wilson committed arson apparently to burn Tubera's body in an attempt to conceal evidence. He then fled the scene, going to two different motels before he was arrested. Flight from the scene of the crime can demonstrate consciousness of guilt. (People v. Anderson (2018) 5 Cal.5th 372, 391-392.)
Wilson did not indicate in his early statements to Keith and Pappas after the shooting that he was threatened by Tubera or acted in self-defense. Wilson was well into his interrogation before he asked whether investigators found a chainsaw at the scene. Only after Wilson was told there was a chainsaw at the scene did he say Tubera swung the chainsaw at him and he shot Tubera in self-defense. Hatfield testified that the bullets that struck Tubera hit him in a downward direction. Although Wilson was four or five inches taller than Tubera, this difference in height would not account for the downward trajectory of the two fatal shots. Hatfield reasoned from the physical evidence that Tubera was shot while on his knees, execution style. If Tubera was swinging a chainsaw from that position, or was otherwise bent over at the waist, he would not have been a threat to Wilson.
When Hatfield opined that Wilson did not act in self-defense, he reiterated the evidence already presented to the jury supporting this conclusion. Here, unlike in Killebrew, the expert opinion testimony was not based on the defendant's subjective state of mind and was not the only basis for the jury to reject Wilson's self-defense theory. Also, defense counsel immediately followed the prosecutor's question with cross examination in which Hatfield admitted he did not know Wilson and did not know whether he was afraid during the encounter with Tubera. Hatfield conceded that he did not know Wilson's state of mind.
The prosecutor's question and Hatfield's response were based on evidence before the jury. There is nothing in the record to lead us to conclude the jury disregarded the instructions it received concerning its duty to decide the issues of credibility and guilt based on its own assessment of the evidence, not the opinions of any witness. (People v. Riggs (2008) 44 Cal.4th 248, 300-301 [opinion testimony that defendant was untruthful and guilty of murder not prejudicial when jury given proper instructions in assessing witness credibility and therefore no denial of due process].) We conclude it is not reasonably probable the jury would have found Wilson not guilty of first degree murder had defense counsel made a timely objection to Hatfield's testimony that the shooting was not in self-defense. Wilson has failed to demonstrate the second prong of ineffective assistance of counsel — prejudice.
Restitution and Parole Revocation Fines
Wilson contends the trial court indicated it wanted to impose the minimum restitution fine (§ 1202.4, subd. (b)), but then chose a fine of $300. The People concede the minimum fine is $200. Although the parties have briefed this as ineffective assistance of counsel because defense counsel did not object to the $300 fine, it appears that the court misspoke resulting in clerical error. Clerical error may be corrected at any time, including on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.) We will order the abstract of judgment corrected to reflect the restitution fine was $200.
The court also imposed a parole revocation fine (§ 1202.45, subd. (a)) of $300. The court shall also reduce this fine to $200 on remand. --------
Senate Bill 620
The parties filed supplemental briefing addressing the effect of Senate Bill No. 620 (2017-2018 Reg. Sess.) on defendant's sentence. On October 11, 2017, the Governor approved Senate Bill No. 620, effective January 1, 2018, which amended sections 12022.5 and 12022.53 to give the trial court discretion to strike or dismiss firearm enhancements. Previously, the trial court had no discretion to strike or dismiss such enhancements and they had to be imposed by law. Both parties agree this statutory amendment is retroactive to all cases not yet final because its effect mitigates punishment for a particular criminal offense. (See People v. Brown (2012) 54 Cal.4th 314, 324; People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Francis (1969) 71 Cal.2d 66, 75-76.) The People argue, however, that remand is unnecessary because the trial court would not exercise the discretion it now has to strike defendant's firearm enhancement. Because the trial court failed to make a clear statement concerning how it would treat the enhancement if it had discretion at the time to do so, we disagree and remand for a new sentencing hearing on whether to strike or impose the firearm enhancement.
In sentencing Wilson, the trial court made few comments. The court found defendant unsuitable for probation. The prosecutor argued for a consecutive upper term of nine years for arson, leading to a sentence of 59 years to life. This was the highest sentence defendant could receive for these offenses. Wilson was already going to receive consecutive indeterminate sentences of 25 years to life for first degree murder and the gun enhancement. The court engaged in more discussion with counsel over direct victim restitution than it did over Wilson's sentence. The court announced Wilson's sentence without making additional findings concerning its sentencing choice.
Although there is no assurance the trial court would exercise its discretion to strike the firearm enhancement, given the trial court's silence on how it would exercise such discretion if it had such discretion and the change in the law, we believe defendant is entitled to argue this point to the trial court. While we do not discount the seriousness of what happened or of defendant's convictions, we cannot say from this record that the trial court would not exercise its discretion to strike the firearm enhancement. (See People v. Lua (2017) 10 Cal.App.5th 1004, 1020-1021.)
This case is distinguishable from People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, where the trial court clearly stated it did not find any good cause to strike a prior conviction allegation and had many reasons not to, concluding the defendant was the kind of person the law intended to keep off the street as long as possible. It is also distinguishable from People v. McVey (2018) 24 Cal.App.5th 405, 418-419. In McVey, the trial court had discretion to select from a triad of three, four, or ten years for a section 12022.5, subdivision (a) gun enhancement. The court carefully noted the defendant's lack of remorse, that he shot an unarmed homeless man several times, and described the defendant's conduct as haunting. In light of the trial court's express consideration of factors in aggravation and mitigation and its deliberate choice of the highest possible term for the firearm enhancement, McVey concluded remand for the court to exercise its discretion pursuant to the newly amended section 12022.5 would serve no purpose. (Ibid.)
In People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081 (Billingsley), the trial court did not clearly indicate how it would exercise its discretion in whether to impose the gun use enhancement if it had such discretion. As in the trial court's ruling here, there was no clear indication by the trial court in Billingsley concerning whether it wanted to impose the maximum possible sentence. Billingsley noted a court that is unaware of its discretionary powers can no more exercise informed discretion than a court whose sentence is based on misinformation. (Ibid.) Billingsley vacated the defendant's sentence and remanded the matter to the trial court to reconsider its sentence in light of amendments to sections 12022.5 and 12022.53. (Billingsley, supra, at p. 1082.)
We therefore reject the People's argument that the trial court would not exercise its discretion to strike the firearm enhancement and a remand for resentencing would serve no purpose. The trial court cannot be faulted for failing to exercise discretion it did not have at the time of sentencing. The statutory amendments at issue here apply retroactively to cases not yet final, including the instant action. Given the record before us, we find Billingsley the better authority to apply to this case. On remand, the trial court shall exercise its discretion to strike or to impose the gun use enhancement. In exercising its discretion, the court may further reconsider Wilson's sentence for arson.
DISPOSITION
Wilson's convictions are affirmed. The trial court's sentence is vacated and the case is remanded for the trial court to resentence Wilson after exercising its discretion whether to impose or to strike the gun use enhancement pursuant to Penal Code section 12022.53, as amended. The abstract of judgment shall be amended to reflect that the restitution and parole revocation fines are $200 each.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.