Opinion
A147059 A147105
08-06-2018
THE PEOPLE, Plaintiff and Respondent, v. DEANDRE DIXON, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. OMOURI FORREST-EDWARDS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C174590A) (Alameda County Super. Ct. No. C174590B)
In March of 2010, Mohammed Diop's apartment in Oakland was burglarized and a small safe containing a handgun was stolen. The next day, in a confrontation outside his building, Diop was shot and killed. Appellants Deandre Dixon and Omouri Forrest-Edwards were both charged with the murder. The jury found Dixon guilty of first degree murder, and Forrest-Edwards guilty of second degree murder. Both defendants appeal, arguing that certain gang expert testimony was erroneously admitted, that the trial court failed to properly instruct the jury regarding the testimony of an alleged accomplice, and that newly enacted legislation granting the trial court discretion to strike certain firearm enhancements requires that they be resentenced. Forrest-Edwards, who was 16 years old at the time of the offense, also argues that Proposition 57, which requires all juveniles to be initially charged in juvenile court, applies retroactively to his conviction and entitles him to a juvenile transfer hearing, and that he is entitled to a hearing to create a record for any future youthful parole hearings under People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
As to Forrest-Edwards, we will conditionally reverse the judgment and remand for a juvenile transfer hearing, and if necessary, a hearing under Franklin and an opportunity for the trial court to exercise its discretion to strike the firearm enhancement. As to Dixon, we will likewise remand for the trial court to exercise its discretion to strike the firearm enhancement, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We provide a brief summary only as relevant to the issues on appeal.
A. Burglary
During the afternoon on March 3, 2010, Mohammed Diop's apartment in Oakland was burglarized while Diop and his wife, Monica Lopez, were not at home. A small safe containing jewelry and a .22-caliber Browning handgun was stolen from the bedroom closet. Lopez testified that she and Diop had "some suspicion" about who was responsible for the burglary.
On the afternoon of the burglary, Jerome Morgan was on a set of exterior stairs next to Diop's building. Morgan saw Dixon and Forrest-Edwards, both of whom he had known since elementary school, jump over a fence and disappear from view. A few minutes later, Dixon and Forrest-Edwards reappeared and jumped back over the fence, at which point one of them was carrying a small black safe. Morgan left with the defendants.
B. Shooting
The next afternoon, March 4, 2010, Gerell Edwards was walking to the store with Dixon, whom he had known for approximately five years. Diop approached them and confronted Dixon, saying that "[h]is neighbors told him that they were the ones that broke into his house, and he wanted his safe back." Dixon denied having taken the safe and Dixon and Edwards continued walking to the corner. Dixon said he was going to call Forrest-Edwards and they were "going to smack the dude," and that he "had to go to the house and pick up his hammer." Edwards understood "smack the dude" to mean killing Diop and "his hammer" to refer to Dixon's gun. Edwards went home and Dixon headed in the direction in which Forrest-Edwards lived.
Later that afternoon, Morgan testified that he returned to the area near Diop's house with Dixon and Forrest-Edwards. Around 6:00 p.m., Diop pulled up in his car accompanied by several friends, including Antawuine Powers and Cleo Henderson. Powers got out of the car, approached Morgan and the defendants, and spoke with them for a few minutes. Forrest-Edwards then displayed a gun, at which point Powers walked away.
Diop then exited his car and approached the young men. While Diop was talking to the other men, Forrest-Edwards circled Diop's car, looked through the windows, and returned to where he had been standing with Morgan and Dixon. After a few minutes, Diop started running back toward the car. Henderson saw Dixon and Forrest-Edwards each pull out a gun and fire multiple shots at Diop. Diop fell to the ground after the last shot.
After the shooting ended, Henderson and the driver were able to pull Diop into the car. They drove Diop to the hospital, where he died from multiple gunshot wounds to the chest. Eleven .45-caliber shell casings and nine .22-caliber shell casings were later recovered at the scene. Two .22-caliber bullets were also found in Diop's body during his autopsy.
C. Recovery of the Gun
The next day, Oakland police received a report of three Black males, between 15 and 18, wearing blue jeans and black hoodies, and shooting at passing vehicles near the west Oakland neighborhood where Diop had been killed. When officers made contact with the men, one of them "seized up" and then began to run. An officer pursued the suspect on foot but lost sight of him. Along the path that the suspect had taken, the officer found a black hoodie and a Browning handgun. The gun was ultimately determined to be the same Browning handgun stolen from Diop's home. A forensic scientist determined that the gun had fired the nine .22-caliber bullets whose casings were recovered at the scene, and that the markings on the two .22-caliber bullets recovered from Diop's body were consistent with having been fired from that same gun. The other three men were detained and identified as Marsean Hackett, Tyrone Taylor, and Morgan.
D. Charges
Dixon and Forrest-Edwards were initially arrested and charged in 2010, and a preliminary hearing was held in January of 2011. The case was dismissed in July of 2011 after the People were unable to produce Morgan, Powers, or Edwards to testify.
By information filed August 29, 2014, the Alameda County District Attorney charged Dixon and Forrest-Edwards with the murder of Mohammed Diop (Pen. Code, § 187, subd. (a).) The information also alleged that each defendant had personally used a firearm (Pen. Code §§ 12022.5(a), 12022.53, subds. (b) & (g)), had personally and intentionally discharged a firearm (Pen. Code § 12022.53, subd. (c)), had inflicted great bodily injury on another person (Pen. Code § 12022.7), and that Dixon had a prior conviction for accessory after the fact (Pen. Code, § 32).
The prior conviction allegation was dismissed on the prosecution's motion at sentencing.
E. Reluctance of Witnesses to Testify
At trial, several witnesses testified that they had been intimidated or were otherwise unwilling to testify.
1. Gerell Edwards
Edwards was with Dixon when he was first confronted by Diop the day of the murder. A preliminary hearing was initially set for October of 2010, and while Edwards was in the hallway waiting to testify, his grandmother saw Forrest-Edwards's mother take a picture of him. When Edwards's grandmother confronted Forrest-Edwards's mother, Forrest-Edwards's mother stated that the photo "was for her son's protection in case [Edwards] testified against [Forrest-Edwards]." Edwards was scared that Forrest-Edwards's mother would "send people . . . after me." Edwards fled the courthouse and refused to return voluntarily. He was subsequently arrested on a witness warrant and taken into custody.
In January of 2011, Edwards was transported to court to testify at the preliminary hearing with Dixon and someone from his housing unit who "knew [Dixon]." Dixon's friend told Edwards that he "better take back [his] statement, or there was going to be problems when [he] got back to the housing unit." After the men arrived at court, Edwards was briefly placed in a holding area with Dixon, who told him that "I better not testify in court, and that I need to take back all my statements and basically tell them I was under the influence, to make my statement not credible" or "[Dixon] was going to do something to me or have somebody else do something to me." At the preliminary hearing, Edwards denied various aspects of his previous statement to police and claimed to have been "drunk, or high" when he made them.
As noted, in July of 2011, the case against defendants was dismissed and they were released from custody. Later that summer, Edwards was in front of his cousin's house in west Oakland smoking a cigarette when a car pulled up and Dixon got out with what Edwards believed was a gun in his hand. According to Edwards, Dixon "told [me] that I'm basically lucky, that he would have done something to me right then and there." Ultimately, Dixon left without incident.
Edwards's sister told him that Forrest-Edwards approached her at the corner store and "told her that basically he's not going to do anything to me at 32nd because someone going to snitch on him, but if he catches me away from 32nd, he's going to do something to me." Edwards also became aware of an Instagram account that had posted details of his initial statement to police. After these incidents, Edwards felt unsafe in his west Oakland neighborhood and moved away.
After charges were refiled in 2014, Edwards was again arrested on a witness warrant, and was in custody for three weeks prior to the preliminary hearing. At the district attorney's suggestion, he applied for and received relocation assistance from the state. As part of the relocation application, Edwards signed a witness agreement requiring him to testify truthfully in all court proceedings.
2. Antawuine Powers
As noted, Powers was in Diop's car just prior to the murder. After the shooting, on April 20, 2010, he gave a statement to Detective Tony Jones. Powers was ultimately arrested on a witness warrant and testified at trial, but was unwilling to do so meaningfully and answered "No" or "I don't recall" to scores of questions. The trial court found that Powers was willfully failing to recall those matters and allowed the prosecution to use the transcript and video of Powers's previous statement when later questioning Detective Jones. Powers told Jones that four days before his April 20, 2010 statement, Forrest-Edwards's mother had confronted him about talking to the police.
3. Jerome Morgan
Morgan did not want to testify at trial, was arrested on a witness warrant, and testified under an immunity agreement. Morgan testified that he did not "want to be known as a snitch" because he "could get killed." Morgan was aware of social media postings mentioning him as a witness, had been called a "snitch" by at least one other person, and was concerned for his safety.
F. Gang Evidence
The trial court permitted Sergeant Steve Valle of the Oakland Police Department to testify as a gang expert for the prosecution, over both defendants' objections. Valle explained the history, culture, and symbols of the Ghost Town gang in west Oakland, as well as its subset, P-Team, composed of younger Ghost Town members. Sergeant Valle opined that Forrest-Edwards was a member of P-Team, based on information from unrelated investigations, Forrest-Edwards's tattoos, and various photos and social media postings depicting Forrest-Edwards associating with known P-Team members and displaying other indicia of gang membership. Valle similarly opined that Dixon was a P-Team member, based on information from unrelated investigations, Dixon's tattoos, and photos recovered from Dixon's phone, including one photo depicting Dixon flashing gang signs with a firearm tucked into his front waistband. Valle also opined that Morgan, Hackett, and Taylor were members of P-Team.
Sergeant Valle testified that witness intimidation was very prevalent in gang culture and that it was an unwritten rule that gang members will not talk to the police or provide information that would implicate one another. Valle answered questions regarding various hypotheticals about statements made to witnesses to keep them from testifying. Valle also testified that firearms are frequently shared among gang members because of the belief that what belongs to one individual gang member belongs to the gang itself.
G. Verdict and Sentence
On September 24, 2015, the jury found Dixon guilty of first degree murder, and found each firearm allegation true. The jury found Forrest-Edwards not guilty of first degree murder, but guilty of second degree murder. The jury also found the allegation that Forrest-Edwards had personally used a firearm true, but found the other two firearm allegations not true. The trial court sentenced Dixon to 25 years to life on the murder charge plus a 25-year term for the firearm enhancement, for a total term of 50 years to life. The trial court sentenced Forrest-Edwards to 15 years to life on the murder charge, plus a 10-year term for the firearm enhancement, for a total term of 25 years to life. Dixon and Forrest-Edwards both filed appeals, and we granted the People's unopposed motion to consolidate them.
DISCUSSION
On appeal, Dixon argues that the trial court erred in admitting the gang expert testimony of Sergeant Valle, and that the trial court erroneously instructed the jury regarding the consideration of the testimony of Morgan as an alleged accomplice. In a supplemental brief, he also contends that he is entitled to resentencing under newly passed legislation granting trial courts discretion to strike the firearm enhancement applied to his sentence. Forrest-Edwards joins in Dixon's arguments regarding the gang evidence and the firearm enhancement. Because he was 16 at the time of the offense, Forrest-Edwards also argues that he is entitled to a juvenile fitness hearing under Proposition 57, enacted November 8, 2016, because it applies retroactively to his conviction, and that he is entitled to a hearing to create a record for future youthful parole hearings under Franklin, supra, 63 Cal.4th 261. I. Sergeant Valle's Testimony Was Properly Admitted
The People concede that a hearing under Franklin is appropriate, and thus we will order such a hearing on remand.
"[E]vidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative. [Citations.]" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167; see People v. Valdez (2012) 55 Cal.4th 82, 128-133.) Dixon asserts that the evidence should have been excluded under Evidence Code section 352 because its probative value was "substantially outweighed by the probability that its admission . . . [would] create substantial danger of undue prejudice," and that the evidence was so inflammatory and prejudicial that its admission violated his due process right to a fair trial. (Evid. Code, § 352; see People v. Bojorquez (2002) 104 Cal.App.4th 335, 345 (Bojorquez).) The "decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court," and will not be disturbed absent an abuse of discretion. (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225 (Albarran).)
The trial court found that the proffered expert testimony was relevant to two material issues before the jury: the movement of the murder weapon, and the credibility of certain witnesses, specifically to explain the numerous recantations and the unwillingness of various witnesses to testify. The jury was ultimately instructed that it could consider "evidence of gang affiliation or gang culture only for the limited purposes of: deciding whether the evidence is relevant to how a particular weapon may have gotten into a person's possession; evaluating the credibility or believability of a witness; or considering the facts and information relied on by an expert witness in reaching his opinion." The jury was further instructed that it could "not consider this evidence for any other purpose," and could "not conclude from this evidence that a defendant, witness, or other person to whom the evidence may apply is a person of bad character or that he has a disposition to commit crime."
Dixon does not dispute that Valle's testimony was relevant to the issues identified by the trial court, namely the movement of the gun and the unwillingness of certain witnesses to testify. Instead, he argues that the testimony "went much further" than these issues and was unduly inflammatory. In particular, Dixon and Forrest-Edwards focus on Valle's statement that alliances and rivalries between Ghost Town and other gangs had resulted in "numerous shootings and murders," Valle's testimony that the founder of P-Team had a "reputation [that] was based solely on his ability to carry out extreme violence" and that he attracted members who "wanted to be just like him because of the reputation he had," and Valle's testimony that a picture of Dixon holding a semi-automatic weapon suggested he was a P-Team member in part because a firearm is a "common tool that is used by violent gang members to carry out their violent acts."
We do not find anything unduly prejudicial or inflammatory about this testimony. The first two statements were made in the context of a long, multi-paragraph response to a question asking Valle to "explain a little bit to the jury about the history of P-Team and Ghost Town, basically how they developed, bringing us up to 2010?" There was nothing particularly surprising about testimony that gang rivalries had led to "shootings and murder," that gang members often display firearms to enhance their violent reputations, or that the founder of a particular gang subset enjoyed such a reputation. (Compare Bojorquez, supra, 104 Cal.App.4th at p. 345 [finding gang evidence prejudicial where it went beyond depicting gangs as generally "prone to criminality"].) To the extent the testimony suggested that defendants were responsible for the murder because Ghost Town committed "shootings and murders," or that defendants sought to join P-Team because they wanted to share the founder's reputation for extreme violence, the inference was attenuated, and the jury was specifically instructed not to draw it. In sum, any prejudice did not outweigh the probative value of Valle's testimony. There was no abuse of discretion. II. The Trial Court Did Not Err in Instructing the Jury Regarding Accomplice Testimony
Defendants' reliance on Bojorquez, supra, 104 Cal.App.4th 335 and Albarran, supra, 149 Cal.App.4th 214 is unavailing. In Bojorquez, the court found that the probative value of the challenged testimony was "minimal, if not nonexistent." (Id. at p. 343.) Similarly in Albarran, the trial court admitted a "panoply of incriminating gang evidence, which might have been tangentially relevant to the gang allegations, but had no bearing on the underlying charges," and its "paramount function . . . was to show [defendant]'s criminal disposition." (Id. at pp. 227-228.) Here, as defendants do not dispute, the proffered evidence was relevant, and the alleged prejudice amounts only to a general suggestion that gangs and their members are "prone to criminality." (Bojorquez, at p. 345.)
Dixon's next argument is that the trial court erred in instructing the jury regarding the testimony of Morgan, an alleged accomplice, because two jury instructions were conflicting and could have permitted the jury to convict based on Morgan's testimony even absent the required corroboration.
Because various witnesses at trial were confronted with their own prior inconsistent statements, the jury was instructed with CALCRIM No. 318, which provides: "You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: 1. To evaluate whether the witness's testimony in court is believable; AND 2. As evidence that the information in those earlier statements is true." The jury was later given CALCRIM No. 334, on the requirement that accomplice testimony be corroborated, specifically with respect to Morgan's testimony: ". . . If you decide that Jerome Morgan was an accomplice, then you may not convict a defendant of murder based on his or her statement or testimony alone. You may use the statement or testimony of an accomplice to convict the defendant only if: 1. The accomplice's statement or testimony is supported by other evidence that you believe; 2. That supporting evidence is independent of the accomplice's statement or testimony; AND 3. That supporting evidence tends to connect the defendant to the commission of the crime. [¶] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact mentioned by the accomplice in the statement or about which the accomplice testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice. [¶] Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence."
Dixon acknowledges that both of these instructions are correct statements of the law, but argues that in combination, the general instruction on witness statements could have overridden the more specific instruction regarding Morgan's testimony and impermissibly allowed the jury to use his testimony to convict even absent the required corroboration.
The People argue that because Dixon did not object to the instructions as given, or request clarifying instructions, he has waived his claim of error. However, because Dixon argues in the alternative that his trial counsel was ineffective in failing to object, we will reach the merits of his argument.
Our Supreme Court rejected a similar argument in People v. Noguera (1992) 4 Cal.4th 599 (Noguera), which is essentially on point. There, the jury was instructed with both CALJIC No. 2.27, which provides that the testimony of a single witness is sufficient for the proof of any fact, and CALJIC No. 3.11, explaining that testimony of an accomplice must be corroborated in order to convict. (Noguera, supra, at p. 630.) The defendant contended, as here, that "the two instructions [we]re contradictory and in combination confused the jury, permitting [him] to be convicted on the basis of [the accomplice's] uncorroborated testimony alone." (Ibid.) The Supreme Court rejected the argument:
"We have encountered this claim repeatedly since our initial consideration of it in People v. Chavez (1985) 39 Cal.3d 823, 829-832. In Chavez, we concluded that 'we must look to the entire charge, rather than merely one part, to determine whether error occurred. [Citation.]' (Id., at p. 830.) We have since refined the test formulated in Chavez to encompass determinations whether the jury 'is instructed on the kind of evidence necessary to constitute corroboration, on the method of determining whether the accomplice's testimony was corroborated, on viewing the accomplice's testimony with distrust, and [whether] the parties proceed[ed] on the premise that corroboration is required.' (People v. Andrews [(1989)] 49 Cal.3d 200, 217.) Where these criteria are met, there is no error. (People v. Williams (1988) 45 Cal.3d 1268, 1313; People v. Adcox (1988) 47 Cal.3d 207, 241.)" (Noguera, supra, 4 Cal.4th at pp. 630-631.)
Here, the jury was given CALCRIM No. 334, the standard instruction on accomplice liability, which includes the definition of an accomplice, the nature and sufficiency of corroborative evidence, the rule that one accomplice may not be corroborated by another, the necessity of criminal intent, and the requirement that accomplice testimony be viewed with "caution." (See Noguera, supra, 4 Cal.4th at p. 631.) In addition, the prosecutor reiterated in closing argument that the jury must decide whether Morgan was an accomplice, because "if so, then his statement and testimony must be supported by independent evidence you believe that tends to connect the defendant to the commission of the murder."
Thus, as in Noguera, "we conclude that nothing in the combined instructions suggested to the jurors that corroboration of [Morgan's] testimony was not required: 'A reasonable juror would have recognized [CALCRIM No. 318] as setting forth the general rule [regarding prior witness statements] and the charge on accomplice testimony as an exception to it. [Citations.] Nothing before us indicates that the jurors may have acted otherwise.' [citing People v. Andrews[, supra,] 49 Cal.3d 200.]" (Noguera, at p. 631.) Accordingly, Dixon's claim of instructional error fails. III. Proposition 57 Requires a Remand for a Juvenile Court Fitness Hearing
On November 8, 2016, while these appeals were pending, the voters approved Proposition 57, "The Public Safety and Rehabilitation Act" (the Act), and it became effective the next day. Under the Act, the juvenile court has original jurisdiction in any criminal proceeding involving a person under the age of 18. (Welf. & Inst. Code, § 602.) The only way a minor can be prosecuted in adult court is by a motion to transfer the case from juvenile to adult court. (Welf. & Inst. Code, § 707, subd. (a)(1).) In ruling on such a transfer motion, the juvenile court shall consider the "degree of criminal sophistication exhibited by the minor"; whether "the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction"; the "minor's previous delinquent history"; the success "of previous attempts by the juvenile court to rehabilitate the minor"; and the "circumstances and gravity of the offense alleged in the petition to have been committed by the minor." (Welf. & Inst. Code, § 707, subd. (a)(2)(A)-(E).)
Forrest-Edwards, who as noted was 16 years old at the time of the offense, argues that the Act applies retroactively to all judgments of conviction not yet final at the time of its enactment, including his own. The People disagree. However, after the briefing in Forrest-Edwards's case was completed, our Supreme Court held that the inference of retroactivity first described in In re Estrada (1965) 63 Cal.2d 740 applies to extend the benefits of Proposition 57 to judgments of conviction that are not yet final. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 309.) The Supreme Court also approved the remedy applied in People v. Vela (2017) 11 Cal.App.5th 68, in which the Court of Appeal conditionally reversed and remanded for a "transfer hearing," during which the juvenile court would treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer the defendant's case to a court of criminal jurisdiction. (People v. Superior Court (Lara), at pp. 312-313; see People v. Vela, at pp. 82-83.) If the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction, then defendant's convictions and sentence are to be reinstated, but if the juvenile court finds that it would not have transferred defendant to a court of criminal jurisdiction, then it shall treat defendant's convictions as juvenile adjudications and impose an appropriate disposition within its discretion. (Ibid.)
Relying on People v. Villa (2009) 178 Cal.App.4th 443 (Villa), the People argue that even if Proposition 57 applies retroactively, a remand is unnecessary because there is no reasonable probability that the juvenile court would impose a juvenile disposition given the serious nature of the charges and Forrest-Edwards's extensive criminal history. In Villa, a juvenile defendant was directly charged as an adult and convicted of a lesser included offense for which direct filing was not permitted, and the trial court erroneously denied the defendant's request for a post-trial fitness hearing under Penal Code section 1170.17, subdivision (c), instead relying on the probation report to conclude that the defendant could appropriately be prosecuted as an adult. (Villa, at pp. 452-453.) The Villa court found this procedural error to be harmless under People v. Watson (1956) 46 Cal.2d 818. (Villa, at p. 453.) Here, by contrast, there was never any occasion for any court to assess Forrest-Edwards's fitness for a juvenile disposition, and it would not be appropriate to do so in the first instance on appeal. Accordingly we will follow the procedure outlined in People v. Vela, and conditionally reverse the judgment as to Forrest-Edwards and remand for such a hearing. IV. A Limited Remand under Senate Bill No. 620 Is Appropriate
On October 11, 2017, while this appeal was pending, the Governor signed Senate Bill No. 620. The legislation provides that effective January 1, 2018, Penal Code section 12022.53, subdivision (h) is amended to permit the trial court to strike, in its discretion, a firearm enhancement. As noted, the jury found that Dixon personally and intentionally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)) and that Forrest- Edwards personally used a firearm (Pen. Code, § 12022.53, subd. (b)). Accordingly, the trial court imposed mandatory sentence enhancements of 25 years to life for Dixon and 10 years to life for Forrest-Edwards. Dixon and Forrest-Edwards argue, and the People concede, that because their appeals were not final as of January 1, 2018, the amended section 12022.53 applies retroactively to these sentencing enhancements. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) However, the People argue that a remand for resentencing is unnecessary because at sentencing, the trial court found several aggravating circumstances and no mitigating circumstances, demonstrating that the court would not have exercised discretion to strike the firearm enhancements even if it had the opportunity to do so.
We granted Dixon's motion to file a supplemental brief addressing the impact of this legislation on his sentence, in which Forrest-Edwards joins.
The amended section 12022.53, subdivision (h) provides: "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." (Stats. 2017, ch. 682, § 2.) --------
Although the trial court's findings at sentencing suggest that it would not strike the firearm enhancements, we do not agree with the People that a remand would be an entirely idle act. The trial court did not address the firearm enhancement except to note that it would not rely on the fact the defendants were armed in imposing sentence "because of the additional sentencing . . . enhancement." (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 ["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."].) We take no position on how the trial court should exercise its newfound discretion under Senate Bill No. 620, but we conclude the trial court should be provided the opportunity to exercise that discretion in the first instance.
DISPOSITION
With respect to Forrest-Edwards, the judgment is conditionally reversed, and the matter remanded to the juvenile court with directions to conduct a transfer hearing to determine whether Forrest-Edwards is fit for treatment within the juvenile justice system. If Forrest-Edwards is found fit for juvenile court treatment, the juvenile court is ordered to treat his conviction as a juvenile adjudication and impose an appropriate juvenile disposition after a dispositional hearing. If Forrest-Edwards is found unfit for juvenile court treatment, the case will be transferred back to the trial court and his convictions reinstated. The trial court should then (1) conduct a hearing to develop a record of information relevant to youth offender parole under Franklin, supra, 63 Cal.4th 261, and (2) exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if appropriate following the exercise of that discretion, resentence Forrest-Edwards accordingly.
With respect to Dixon, the matter is remanded to the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if appropriate following the exercise of that discretion, to resentence Dixon accordingly. In all other respects, the judgment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.