Opinion
A161796 A162143
08-31-2022
THE PEOPLE, Plaintiff and Respondent, v. DAMARIE JONES, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. JOHN BLACKNELL, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. 16-CR-011710A, 16-CR-011710B
STREETER, J.
A jury convicted defendants Damarie Jones and John Blacknell of the first degree felony murder of J.V., related enhancements, and a separate firearm charge as to Blacknell. The trial court imposed prison sentences of 56 years to life for Jones and 50 years to life for Blacknell.
We refer to the victim by first and last initials; we initially refer to some witnesses by their first name and last initial and thereafter by their first name. (Cal. Rules of Court, rule 8.90(b).)
In these consolidated appeals, each defendant presents separate challenges to the sufficiency of the evidence, the jury instructions given by the court, and the sentences. In response, the Attorney General opposes most of the defendants' arguments while conceding one sentencing issue raised by Jones. The Attorney General also argues one portion of Blacknell's sentence is unauthorized and must be corrected.
In Blacknell's appeal, we affirm the convictions, but we vacate the sentence and remand for resentencing. In Jones's appeal, we agree with the parties that one enhancement imposed and stayed by the court must be stricken, and we otherwise affirm the judgment.
I. BACKGROUND
A. Facts Pertaining to the Count One Murder Charges Against Both Defendants: The Shooting of J.V.
J.V., who sold marijuana, was killed when he was shot six times in connection with a confrontation with two men in an Oakland neighborhood in the early afternoon of April 3, 2016. The prosecution's theory was that the assailants were Blacknell and Jones, that they either robbed or attempted to rob J.V., and that Blacknell shot J.V. during the robbery or attempted robbery.
As to Blacknell, the prosecution pursued, and the jury was instructed on, two theories of culpability for murder under Penal Code sections 188 and 189-(1) first degree felony murder as the actual killer (§ 189, subds. (a), (e)(1)), and (2) second degree malice murder (§§ 188, subd. (a), 189, subd. (b)). The prosecution alleged Jones was guilty of first degree felony murder under section 189, subdivision (e)(3), i.e., he was a major participant in the robbery who acted with reckless indifference to human life.
Undesignated statutory references are to the Penal Code.
The trial in this matter was held in mid-2019 (after the revisions to the felony-murder rule under Senate Bill No. 1437 (2017-2018 Reg. Sess.) took effect on January 1, 2019), and the felony-murder theories presented at trial-that Blacknell was the actual killer and that Jones was a major participant in the felony who acted with reckless indifference to human life- were theories that remain valid under current law. (§ 189, subds. (a), (e)(1), (3).)
Brianna S., who knew J.V., bought marijuana from him at around 11:00 a.m. on April 3, 2016, near J.V.'s home in Oakland. At about 1:00 or 2:00 p.m., she was a passenger in a car driven by her boyfriend near the same location. She saw two men were confronting J.V. They were "surrounding" him and were being aggressive and going through his pockets. She described J.V., who was under five feet tall, as looking nervous and scared.
Brianna observed this incident for about five to ten seconds, and her boyfriend then drove away. Brianna recognized one of the men as Blacknell, whom she knew as "Bling." After arriving home, Brianna told someone that she believed J.V. was being robbed.
At about the same time, Geraldine L. was riding her bicycle in the area. She saw that two men were pushing and being aggressive with J.V. They were struggling over a backpack. They were about 20 feet from Geraldine, who stopped her bike. She yelled and told them to leave him alone. She told them she was going to call the police. They looked at her but did not stop their assault.
Geraldine got off her bicycle and walked toward the men. When she was about six feet from them, she saw the taller of the two attackers had a gun. He fired several shots at J.V. J.V. fell to the ground and had gunshot wounds in his back. The assailants ran away. Geraldine noticed the backpack was gone. She had previously told the police that the tall man took the backpack, but had previously testified that the shorter man took the backpack. At trial she stated her memory of the taking of the backpack was "blurry."
Blacknell is very tall, and Jones is much shorter.
Geraldine could not identify either of the defendants in court. She did not hear any words exchanged between J.V. and his assailants.
A surveillance video in the area of the crime scene did not capture the struggle between the men and J.V. or the shooting. The video showed J.V. approach a white BMW. The video did not show J.V. with a backpack. The police did not find physical evidence of the backpack.
The forensic pathologist who performed the autopsy on J.V. testified he sustained six entrance wounds. The cause of death was multiple gunshot wounds. Some of the wounds were in his upper back and torso. J.V. also had bruises and scrapes on his arms and scrapes on his left leg and torso.
DNA taken from J.V.'s fingernail clippings matched Jones. The random probability of the match was one in four sextillion people. DNA can be deposited by secondary transfer even if a person did not touch the object.
J.V.'s cell phone records showed that in the month before the shooting Blacknell made about 26 calls to J.V., the last of which was the day before the shooting.
Police reviewed text messages between Blacknell and Jones. About 10 days before the robbery, Blacknell sent Jones a text message about whether it was "good to tote." A police officer testified this phrase means it is okay or safe to carry a gun. The text messages between Blacknell and Jones do not mention J.V. or the area of the shooting.
B. Facts Pertaining to the Count Two Firearm Charge Against Blacknell
On August 4, 2016 (four months after the shooting), officers executing an arrest warrant for Blacknell saw him leaving a residence. When Blacknell saw them, he ran the other way, holding his waistband as if he had a firearm concealed in it. The officers lost sight of him for a short time when he turned a corner, but arrested him soon afterwards. Near the corner where he had turned, officers found an unregistered and loaded pistol on the ground. The parties stipulated that the firearm that was recovered was not the one used to kill J.V.
C. Procedural Background: The Charges, Verdicts, and Sentences
A consolidated information filed in December 2018 charged Jones and Blacknell in count one with the April 3, 2016 murder of J.V. (§ 187, subd. (a).) Count two charged that, on August 4, 2016, Blacknell possessed a loaded unregistered firearm in a public place. (§ 25850, subds. (a), (c)(6).) As to the murder charge in count one, the information alleged Blacknell personally and intentionally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) As to Jones, the information alleged the murder in count one was committed when a principal was armed with a firearm. (§ 12022, subd. (a)(1).) The information alleged Jones had a prior serious felony conviction (§ 667, subd. (a)(1))-a 2010 conviction for second degree robbery-that qualified as a "strike" (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), and for which he had served a prison term (§ 667.5, former subd. (b)).
In July 2019, the jury found both defendants guilty of first degree felony murder in count one and found the firearm enhancements were true. The jury also found Blacknell guilty of the count two charge of possessing a loaded unregistered firearm.
At a hearing on January 8, 2021, Jones stipulated that he had suffered the prior robbery conviction alleged in the information. The court then sentenced Jones to a total prison term of 56 years to life. The sentence consisted of 25 years to life for the count one conviction of first degree murder (§§ 187, subd. (a), 189, subd. (a), 190, subd. (a)), doubled for the prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), plus consecutive terms of one year for the firearm enhancement (§ 12022, subd. (a)(1)) and five years for the prior serious felony conviction (§ 667, subd. (a)(1)). The court imposed but stayed the one-year term for the prior prison term enhancement (§ 667.5, subd. (b)).
Also on January 8, 2021, the court sentenced Blacknell to a total unstayed prison term of 50 years to life. As to the count one murder conviction, the court imposed a term of 25 years to life (§§ 187, subd. (a), 189, subd. (a), 190, subd. (a)), plus a consecutive term of 25 years to life for the enhancement for personally discharging a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). For the count two conviction for possessing a loaded unregistered firearm, the court imposed the two-year middle term (§§ 1170, subd. (h), 25850, subds. (a), (c)(6)) but stayed it under section 654.
In connection with this enhancement for Blacknell, both the information and the verdict refer not only to section 12022.53, subdivision (d) (which provides for the consecutive 25-years-to-life term imposed by the court), but also to section 12022.7, subdivision (a), which in some circumstances imposes a three-year enhancement for personal infliction of great bodily injury. These latter references appear to be in error, as the section 12022.7 enhancement does not apply to murder. (§ 12022.7, subd. (g).) When the court orally imposed Blacknell's sentence, it did not refer to section 12022.7 or state that it was imposing an enhancement term under that section, but the minute order and abstract of judgment for Blacknell state that such a term was imposed and stayed under section 654. We will direct that, after the court resentences Blacknell, a new abstract of judgment is to be prepared that reflects that no such term was imposed.
II. DISCUSSION
A. Blacknell's Appeal (No. A162143)
1. Sufficiency of the Evidence That J.V. Was Killed During a Robbery or Attempted Robbery
Blacknell was convicted in count one of first degree felony murder based on the prosecution's argument that he and Jones either robbed or attempted to rob J.V., and that Blacknell shot J.V. in the course of the robbery or attempted robbery. (§ 189, subd. (a) ["All murder . . . that is committed in the perpetration of, or attempt to perpetrate, . . . robbery . . . is murder of the first degree."].) Blacknell contends there is insufficient evidence to support the conviction because there is insufficient evidence that he and Jones robbed or attempted to rob J.V.
When a defendant challenges the sufficiency of the evidence to support a conviction, this court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.)" '[T]o find a defendant guilty of first degree murder based on a killing perpetrated during a robbery [or attempted robbery], the evidence must show the defendant intended to steal the victim's property either before or during the fatal assault.'" (People v. Wear (2020) 44 Cal.App.5th 1007, 1022.)
Here there was testimony that J.V.'s assailants-Blacknell and Jones, who were bigger than J.V.-were "surrounding" him and struggling with him over a backpack, and that J.V. looked scared. After Jones and Blacknell fled, the backpack was gone. There was also testimony that the attackers were going through J.V.'s pockets. The jury reasonably could infer from this evidence that Blacknell and Jones were taking, or attempting to take, property from J.V. using force or fear. There is substantial evidence that Blacknell's shooting of J.V. occurred "in the perpetration of, or attempt to perpetrate, . . . robbery." (§ 189, subd. (a).)
Blacknell contends the testimony about the struggle over the backpack does not support a finding of robbery because "there is no evidence that the backpack belonged to [J.V.] or that it was in his possession." Blacknell notes that Geraldine, who happened upon the scene when the struggle was underway and attempted to help J.V., did not have personal knowledge as to whose backpack it was. Blacknell also points out the surveillance video that showed J.V.'s interaction with a white car prior to the shooting did not capture a backpack.
But independent, direct evidence about J.V.'s ownership or prior possession of the backpack was not required. Based on the evidence that was presented (about the struggle, the defendants' aggressive conduct, greater numbers, and larger size, and the fact no backpack remained after they fled), the jury reasonably could infer the defendants forcibly took the backpack from J.V.'s possession. Contrary to Blacknell's suggestion, such a conclusion would not require improper speculation, but would be based on reasonable inferences from the evidence.
Apart from the backpack, the evidence that the defendants were going through J.V.'s pockets supports a reasonable inference they were forcibly taking, or attempting to take, property from him. Blacknell again argues more evidence was needed, such as evidence showing that property of J.V.'s was taken, or establishing why the defendants were going through his pockets. We disagree. The jury reasonably could infer the defendants were at least attempting to take property from J.V. To the extent Blacknell suggests there was insufficient evidence the defendants harbored the intent to steal, we note a jury may appropriately infer intent from the surrounding circumstances. (§ 29.2, subd. (a); People v. Lewis (2001) 25 Cal.4th 610, 643 ["[T]he intent required for robbery . . . is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime."].) The circumstances shown by the evidence here- that the defendants forcibly rifled through the pockets of the frightened victim, a marijuana dealer-support a reasonable inference they intended to rob him.
2. Blacknell's Challenge to CALCRIM No. 548 Pertaining to Multiple Theories of Murder Liability
As noted, the prosecution argued Blacknell was guilty of murder on two theories: (1) first degree felony murder, i.e., that Blacknell fatally shot J.V. during a robbery or attempted robbery (§ 189, subds. (a), (e)(1)), and (2) second degree malice murder, i.e., that Blacknell acted with express or implied malice (§§ 188, subd. (a), 189, subd. (b)). The jury convicted him of first degree felony murder.
Blacknell argues that an instruction the court gave on the prosecution's alternative theories of murder-CALCRIM No. 548-was defective because it told jurors in part that they "d[id] not all need to agree on the same theory," although it then stated that they had to "unanimously agree that the murder is first degree felony murder or second degree." Blacknell contends this instruction was "wrong, misleading, and ambiguous," and was likely applied by the jury in "a fundamentally unfair way," requiring reversal of his murder conviction. We disagree.
The version of CALCRIM No. 548 given by the court stated: "Defendant Blacknell has been prosecuted for murder under two theories: (1) first degree felony murder and (2) malice aforethought. [¶] Each theory of murder has different requirements, and I will instruct you on each. [¶] You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory, but you must unanimously agree that the murder is first degree felony murder or second degree." The court gave separate instructions listing the elements the jury had to find to convict Blacknell on each theory-CALCRIM No. 540A (first degree felony murder where the defendant committed the fatal act) and CALCRIM No. 520 (second degree murder with malice aforethought).
Blacknell states he did not object to the court's giving CALCRIM No. 548. We will nevertheless review his claim of instructional error to determine whether the challenged instruction violated his substantial rights. (§ 1259.)
In a criminal case, the jury must agree unanimously the defendant is guilty of a specific crime, but the jury need not unanimously agree on the basis or theory supporting the defendant's guilt. (People v. Webb (2018) 25 Cal.App.5th 901, 905 (Webb).) "For example, to convict a defendant of first degree murder, the jury need not unanimously agree on whether it was premeditated or felony murder." (Ibid.) CALCRIM No. 548 as given here was consistent with this principle.
Blacknell, citing People v. Sanchez (2013) 221 Cal.App.4th 1012 (Sanchez) and People v. Johnson (2016) 243 Cal.App.4th 1247 (Johnson), argues instructing the jury it did not have to agree on the theory of murder was erroneous because here the two theories involve different degrees of murder.
" 'In assessing a claim of instructional error, we examine the instructions as a whole. The test we apply is whether there is a reasonable likelihood the jurors would have understood the instructions in a manner that violated a defendant's rights. [Citation.] In this regard, we presume that jurors are intelligent individuals who are capable of understanding instructions and applying them to the facts of the case before them.' [Citations.]' "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." '" (Webb, supra, 25 Cal.App.5th at p. 906.)
In Sanchez and Johnson, the jury was presented with theories of first degree felony murder and second degree murder based on malice and aiding and abetting. (Sanchez, supra, 221 Cal.App.4th at p. 1019; Johnson, supra, 243 Cal.App.4th at p. 1251.) In each case, the trial court instructed using a version of CALCRIM No. 548 that included the sentence:" 'You do not all need to agree on the same theory.'" (Sanchez, supra, at p. 1019, italics omitted; Johnson, supra, at p. 1277.) The appellate courts in Sanchez and Johnson held that instructing the jurors that they did not have to agree on the theory was erroneous because it suggested unanimity was not required as to the degree of murder. (Sanchez, at p. 1025 ["Unanimity was required in this case as to the theory of guilt as a result of different theories supporting different degrees of murder."]; Johnson, at p. 1280 ["The flaw in giving CALCRIM No. 548 was that it suggested to the jury that it need not agree on the degree of murder."]; see § 1157.)
In Webb, the jury similarly was presented with theories of first degree felony murder and second degree malice aforethought murder. (Webb, supra, 25 Cal.App.5th at p. 906.) But the trial court instructed with a newer, revised version of CALCRIM No. 548, which (unlike the version given in Sanchez and Johnson) expressly told the jury it had to agree on the degree of murder. (Webb, supra, at p. 907.) The last line of the former version of the instruction read," 'You do not all need to agree on the same theory.'" (Ibid.) In the revised version, "the following bracketed language was added: '[, but you must unanimously agree whether the murder is in the first or second degree].' " (Webb, at p. 907.) Despite the amendment to the instruction, the Webb court stated there was still an arguable ambiguity in the revised instruction, explaining: "[T]he given instruction defined malice aforethought and felony-murder as different 'theories' and stated unanimity was not required as to the 'theory.' Although it also stated unanimity was required as to the 'degree,' the instruction arguably contained an ambiguity." (Ibid.)
The current published version of CALCRIM No. 548 ends with the sentence: "You need not all agree on the same theory but you must unanimously agree on the degree of murder." (CALCRIM No. 548.)
The Webb court ultimately did not decide whether the alleged ambiguity in CALCRIM No. 548 "amounted to error on the facts of this case," because the court concluded any error was harmless beyond a reasonable doubt. (Webb, supra, 25 Cal.App.5th at p. 907, citing Sanchez, supra, 221 Cal.App.4th at p. 1027 [applying Chapman v. California (1967) 386 U.S. 18, 24, to the error arising from the defect in former CALCRIM No. 548].)Based on the evidence and defenses presented at Webb's trial, there was "no likelihood the jury did not unanimously agree that he committed felony murder." (Webb, supra, at p. 907.)
We reject Blacknell's suggestion the purported error here requires reversal without regard to prejudice, a position not adopted by Webb, Johnson, or Sanchez. (Webb, supra, 25 Cal.App.5th at p. 907 [applying the Chapman standard]; Johnson, supra, 243 Cal.App.4th at p. 1281 [same]; Sanchez, supra, 221 Cal.App.4th at pp. 1026-1027 [same].)
Here, we are not persuaded the asserted ambiguity in the challenged instruction amounted to error, and in any event, we conclude any error was harmless beyond a reasonable doubt. First, in our view, as compared to the instruction given in Webb, the version of CALCRIM No. 548 given for Blacknell in the present case went further toward eliminating any arguable ambiguity. The Webb instruction told jurors the defendant had been prosecuted" 'under two theories: (1) malice aforethought, and (2) felony murder.'" (Webb, supra, 25 Cal.App.5th at p. 906.) The instruction then stated the jurors did not have to" 'agree on the same theory'" and followed that statement with the general proviso that they did have to" 'unanimously agree whether the murder is in the first or second degree.'" (Ibid.)
As we read it, the version of CALCRIM No. 548 given by the court here was more specific in emphasizing that (as Blacknell acknowledges) felony murder was the only theory of first degree murder being presented. The instruction stated Blacknell had been prosecuted under "two theories: (1) first degree felony murder and (2) malice aforethought." (Italics added.) The instruction then stated jurors did not need to "agree on the same theory," but followed that with a specific admonition that "you must unanimously agree that the murder is first degree felony murder or second degree."(Italics added.) In light of this language, we conclude (contrary to Blacknell's view) that there is no reasonable likelihood that a juror who was not convinced of the felony-murder theory would believe the instruction authorized a conviction of first degree murder on a different theory.
The separate instructions on each theory of murder similarly noted which degree of murder applied. The felony-murder instruction for Blacknell (CALCRIM No. 540A) stated multiple times that felony murder was a basis for a conviction of first degree murder, while the instruction on malice murder (CALCRIM No. 520) stated malice was a ground for a second degree murder conviction.
Moreover, the completed verdict form returned by the jury for Blacknell was not a general verdict stating he was guilty of first degree murder. Instead, the verdict form stated Blacknell was guilty of "first degree felony murder" (although it did later use the phrase "malice aforethought" in referring back to the phrasing of count one of the information). The jurors were polled and unanimously affirmed this was their verdict. The language of the verdict form served to further diminish, if not eliminate, any purported confusion jurors might have had about whether the instructions permitted a conviction of first degree murder without adopting the felony-murder theory. The verdict also establishes any error arising from alleged ambiguity in CALCRIM No. 548 was harmless, because, in contrast to Sanchez (which found reversible error in the circumstances of that case), here there are " 'other aspects of the verdict or the evidence' . . . to indicate the jurors unanimously found defendant committed first degree felony murder." (Sanchez, supra, 221 Cal.App.4th at p. 1027.)
We refer here to the final form of verdict returned by the jury. We discuss below the "nullified verdicts" initially returned by the jury. See post at pages 15-16.
The verdict form on count one for Blacknell stated in relevant part: "We, the jury, in the above-entitled cause find the defendant, JOHN BLACKNELL, GUILTY of a Felony, to wit: FIRST DEGREE FELONY MURDER, a violation of section 187(a) of the PENAL CODE of California, in that on or about April 3, 2016, in the County of Alameda, State of California, said defendant did unlawfully and with malice aforethought, murder [J.V.], a human being, as charged in Count One of the Information."
Also, as the Attorney General points out, the jury unanimously found Jones guilty of first degree felony murder, the sole theory of culpability he faced. The jurors' verdict as to Jones provides further confirmation they unanimously found J.V. was killed during a robbery or attempted robbery, the basis for the first degree felony-murder theory pursued against both defendants. Blacknell's argument that the evidence of robbery or attempted robbery was thin (a point we have addressed in pt. II.A.1., ante) does nothing to undercut the indications that the jury in fact concluded a robbery or attempted robbery occurred.
As Blacknell notes, the jury initially returned separate verdict forms stating Blacknell was guilty of both first degree felony murder and second degree murder. The court stated it was "a little bit confused by the verdicts," conferred with counsel off the record, and then gave the jurors new verdict forms and referred them to CALCRIM No. 640, an instruction included in the set they had been given earlier that explained how to complete the verdict forms (including a directive to stop and not complete more forms as to count one for Blacknell if they found him guilty of first degree felony murder). After a recess, the jury returned a new set of completed verdict forms, including the form finding Blacknell guilty of first degree felony murder.
Blacknell suggests the verdict forms initially returned by the jury show the jurors "may have understood that they did not have to all agree on the theory of guilt." But the initial forms do not support Blacknell's argument that CALCRIM No. 548 prejudiced him by causing jurors to convict him of first degree felony murder without finding that theory had been proved. The initial forms suggest only that the jury may have been confused as to how properly to complete the forms, in light of the somewhat detailed instructions in CALCRIM No. 640 that addressed both defendants and multiple lesser offenses. We agree with the Attorney General that drawing any other inference from the forms would be speculative. But if any further inference could be drawn, it is that the jurors may have unanimously agreed both theories of guilt had been proved.
Finally, Blacknell contends the prosecutor's closing argument added to the confusion allegedly created by CALCRIM No. 548. We disagree. The prosecutor argued both defendants were guilty of first degree felony murder, i.e., that Blacknell shot and killed J.V. while the defendants were robbing or attempting to rob him, and that both defendants were major participants in the robbery who acted with reckless indifference to human life. The prosecutor also discussed the elements of robbery, the firearm enhancements, and the count two charge against Blacknell for unlawfully carrying a loaded firearm. Finally, the prosecutor argued that, "[i]f you can't all agree that this was a felony murder," Blacknell was guilty of second degree murder based on both express and implied malice as shown by his shooting of J.V. We find nothing in the prosecutor's argument on these points that supports a finding of reversible instructional error.
Although the prosecutor argued both defendants were major participants in the robbery who acted with reckless indifference to human life, that theory of accomplice liability was only presented by instruction as to Jones. The felony-murder instruction for Blacknell presented the theory that he was the actual killer.
3. Blacknell's Sentence
a. Background and the Parties' Contentions
The court sentenced Blacknell to a prison term of 25 years to life for the first degree murder conviction in count one, plus a consecutive term of 25 years to life for the associated enhancement for personal and intentional discharge of a firearm causing death under section 12022.53, subdivision (d) (section 12022.53(d)). The court denied a request by Blacknell to dismiss the enhancement under the discretionary authority conferred by section 12022.53, subdivision (h) (section 12022.53(h)). For the count two conviction of unlawful firearm possession, the court imposed a two-year term but stayed it under section 654.
On appeal, the parties challenge different aspects of this sentence. Blacknell contends the court abused its discretion by imposing the firearm enhancement and asks this court to remand for resentencing. The Attorney General argues the court's decision to impose the enhancement was proper, but he asserts the staying of the term on count two was unlawful, as that count arose from a separate incident months after the shooting. The Attorney General states the case "should be remanded to the trial court to impose an unstayed term for the conviction on Count Two."
In his reply brief, Blacknell reiterates his challenge to the firearm enhancement. He also states the Attorney General "appears to be correct" as to count two and that the case should be remanded for resentencing on that count. Finally, Blacknell argues that, at any resentencing, he will be entitled to the benefit of recently enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81), which took effect on January 1, 2022 and amended section 1385 "to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice." (People v. Sek (2022) 74 Cal.App.5th 657, 674.) (A subsequent enactment-Assembly Bill No. 200 (2021-2022 Reg. Sess.) (Assembly Bill 200), which took effect on June 30, 2022, after the completion of briefing in this appeal-made minor additional changes to the relevant portions of section 1385.) We conclude a remand for resentencing is necessary, and we agree Blacknell will be entitled to the benefit of Senate Bill 81 (and Assembly Bill 200) at resentencing.
b. The Firearm Enhancement
Blacknell contends the court abused its discretion by imposing the 25-years-to-life firearm enhancement under section 12022.53(d). Blacknell argues mitigating factors, including his youth at the time of the crime and difficult family circumstances, supported striking the enhancement. He also asserts the court, rather than facing an all-or-nothing choice between imposing or striking the 25-years-to-life enhancement, could have imposed a "lesser firearm enhancement" but did not appear to realize it had that option. We agree with the latter argument and will remand for resentencing on that basis.
We review for abuse of discretion a trial court's decision whether to strike a firearm enhancement. (People v. Pearson (2019) 38 Cal.App.5th 112, 116.) "When being sentenced, a defendant is entitled to decisions made by a court exercising informed discretion. [Citation.] A court acting while unaware of the scope of its discretion is understood to have abused it." (People v. Tirado (2022) 12 Cal.5th 688, 694 (Tirado).)
Effective January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) amended section 12022.53(h) to provide a trial 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" section 12022.53. (Stats. 2017, ch. 682, § 2.) At Blacknell's sentencing hearing in January 2021, the court noted that, under section 12022.53(h), it had discretion to dismiss the section 12022.53(d) enhancement. After explaining it would not strike the enhancement as Blacknell had requested, the court stated: "Under Section 12022.53(h) of the Penal Code, I'm aware that I have the discretion to strike, dismiss enhancements, stay sentences, things of that nature."
But we agree with Blacknell that it is not clear from the record that the court understood the full scope of its discretion under section 12022.53. The California Supreme Court's decision in Tirado, which was issued in January 2022 (after Blacknell's sentencing hearing and after the completion of briefing in this appeal), resolved a split among the Courts of Appeal and established that a trial court deciding whether to strike a section 12022.53(d) enhancement is not limited to the binary choice of imposing or striking the enhancement. (Tirado, supra, 12 Cal.5th at pp. 692, 696-697.) Instead, the court may strike the section 12022.53(d) enhancement and impose a lesser enhancement under section 12022.53, subdivision (b) (section 12022.53(b)) or section 12022.53, subdivision (c) (section 12022.53(c)). (Tirado, supra, at pp. 692, 696-697.)
The three enhancements in section 12022.53 provide escalating penalties for firearm use during specified felonies, including murder. (§ 12022.53, subds. (a)(1), (b)-(d).) Section 12022.53(b) prescribes a 10-year enhancement for personal use of a firearm; section 12022.53(c) provides for a 20-year enhancement for personal and intentional discharge of a firearm; and section 12022.53(d) specifies a 25-years-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death to a person other than an accomplice.
This discretionary authority exists even if the lesser enhancements were not charged in the information or found true by the jury, as long as "the facts giving rise to the [lesser] enhancement are alleged and found true." (Tirado, supra, 12 Cal.5th at p. 699.) This requirement is met here. The jury's finding, in connection with the murder count, that Blacknell personally and intentionally discharged a firearm causing great bodily injury or death under section 12022.53(d) encompasses a finding that he used a firearm within the meaning of section 12022.53(b) and discharged a firearm within the meaning of section 12022.53(c). (Tirado, supra, at p. 700.)
Here the information did allege, as to Blacknell, that the enhancements under section 12022.53(b), (c), and (d) all applied. But the jury's verdict for Blacknell only includes a true finding as to the section 12022.53(d) enhancement (and does not mention the lesser enhancements).
Here, Blacknell's trial counsel asked the court (both orally at the sentencing hearing and in a written submission) to strike the section 12022.53(d) enhancement outright. Counsel did not expressly ask the court to strike the section 12022.53(d) enhancement and impose a lesser enhancement in its place, although counsel did state in his written submission that the court should "determin[e] which, if any, additional term for the personal use of a firearm should be imposed." (Italics added.) The Attorney General does not argue Blacknell forfeited his claim that the court should have considered imposing a lesser enhancement.
In denying Blacknell's request to strike the section 12022.53(d) enhancement, the trial court, as noted, stated it was aware it had discretion under section 12022.53(h) "to strike, dismiss enhancements, stay sentences, things of that nature." The court declined to strike the enhancement and stated it would instead "sentence Mr. Blacknell to the term prescribed by law for this enhancement of 25 years to life." The court did not state it was aware it had discretion to strike the section 12022.53(d) enhancement and impose in its place a lesser enhancement under section 12022.53(b) or section 12022.53(c), and neither the court nor counsel discussed the availability of that option at the hearing. In our view, the record is at best uncertain as to whether the trial court was aware it had discretion to strike the section 12022.53(d) enhancement and impose a lesser enhancement.
Based on this record, the uncertain state of the law at the time of sentencing as to the scope of the trial court's discretion, and the Supreme Court's subsequent resolution of that issue in Tirado, we conclude a remand for resentencing is appropriate. (See People v. Jeffers (1987) 43 Cal.3d 984, 1000 [where law was "unclear or uncertain" when trial court acted, reviewing court will not apply usual presumption that trial court followed established law]; People v. Henderson (2022) 78 Cal.App.5th 530, 538, fn. 3 [under Tirado, trial courts have discretion to impose lesser firearm enhancement].)
The Attorney General argues that, even if the trial court had discretion to impose a lesser enhancement, "there is no reasonable basis to conclude that the court abused its discretion in failing to impose a lower term," because "[t]here was nothing mitigating about the nature of the offense." The Attorney General continues: "The facts of the offense do not justify a departure from the statutorily specified 25-year to life term." But it is the trial court that must decide this question in the first instance, with knowledge of the full scope of its discretionary authority under section 12022.53 as set forth in Tirado.
We will vacate Blacknell's sentence and remand for a new sentencing hearing, at which the trial court may exercise its discretion with respect to the firearm enhancement. We express no opinion how the court should exercise its discretion.
Because we remand for resentencing on the grounds stated in the text, we do not address Blacknell's argument that a remand for resentencing is required because the court abused its discretion by giving insufficient weight to Blacknell's youth or background or by considering improper factors in declining to strike the enhancement.
c. The Sentence on Count Two
In his written submission prior to sentencing, Blacknell's trial counsel asked the court to direct that any prison sentence for count two (unlawful possession of a loaded firearm) should run concurrently with the sentence for the count one murder conviction; at the hearing, counsel reiterated this request and added the suggestion that the court could stay the count two sentence. The court stated it was imposing the middle term of two years for count two but was staying that sentence. The court did not state reasons for staying the count two sentence and did not refer to section 654 at the hearing, but the minute order and abstract of judgment state the stay on count two was pursuant to section 654.
The Attorney General argues a section 654 stay as to count two is unlawful and that "an unstayed term" should be imposed instead, since the count two charge arose from a separate incident months after the shooting. Blacknell concedes the issue in his reply brief.
We agree section 654 appears to be inapplicable here unless there is some showing (not identified by the trial court or the parties) that the April 3, 2016 shooting and the August 4, 2016 possession incident (involving different firearms) were" 'incident to one objective.'" (People v. Correa (2012) 54 Cal.4th 331, 336, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.) We are remanding for resentencing as discussed in part II.A.3.b., ante, and the trial court may impose at resentencing a new sentence for count two. Unless there is a basis for applying section 654, the court should impose an unstayed term for count two, which may be either concurrent or consecutive to the count one sentence. (See Cal. Rules of Court, rule 4.425.)
d. Senate Bill 81 and Assembly Bill 200
Senate Bill 81, enacted by the Legislature in 2021 and effective January 1, 2022, amended section 1385 to specify factors a trial court must consider when deciding whether to strike enhancements in the interest of justice; Assembly Bill 200, which took effect June 30, 2022, made minor additional amendments to the statute. (Stats. 2021, ch. 721, § 1, adding subd. (c) to § 1385; Stats. 2022, ch. 58, § 15, amending § 1385, subd. (c).) Subdivision (c) of section 1385 directs that, in general, a court "shall dismiss an enhancement if it is in the furtherance of justice to do so" (§ 1385, subd. (c)(1)), and that, "[i]n exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety" (id., subd. (c)(2)).
As Blacknell notes, the mitigating circumstances enumerated in subdivision (c) of section 1385 include the following: "(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed."; "(E) The current offense is connected to prior victimization or childhood trauma."; and "(G) The defendant was a juvenile when they committed the current offense ...." (§ 1385, subd. (c)(2)(C), (E), (G).)
These requirements "shall apply to all sentencings occurring after January 1, 2022." (§ 1385, subd. (c)(7).) Because any resentencing in this case will take place after January 1, 2022, we agree with Blacknell that the court must apply the new law in any such proceeding. (People v. Sek, supra, 74 Cal.App.5th at p. 674 [holding Senate Bill 81 must be applied in a resentencing to occur after January 1, 2022].)
B. Jones's Appeal (No. A161796)
1. Sufficiency of the Evidence That Jones Was a Major Participant in the Robbery or Attempted Robbery Who Acted with Reckless Indifference to Human Life
The prosecution argued Jones was guilty of first degree felony murder because he was a major participant in the robbery or attempted robbery of J.V. and acted with reckless indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e)(3).) The court instructed on this theory with CALCRIM No. 540B. The jury found Jones guilty of first degree felony murder. Jones argues this conviction must be reversed because there is insufficient evidence he was a major participant in the robbery or that he acted with reckless indifference to human life.
As noted, when assessing a claim of insufficient evidence, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson, supra, 26 Cal.3d at p. 578.)
Section 189, subdivision (e)(3) (added by Senate Bill No. 1437 (20172018 Reg. Sess.); Stats. 2018, ch. 1015, § 3) authorizes a conviction of first degree felony murder when a defendant who participates in an enumerated felony such as robbery was not the actual killer but "was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." In turn, section 190.2, subdivision (d) specifies the standard of culpability for the felony-murder special circumstance set forth in section 190.2, subdivision (a)(17). Section 190.2, subdivision (d) "imposes an actus reus requirement, major participation in the enumerated felony, and a mens rea requirement, reckless indifference to human life." (In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).)
In People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court clarified the standards for determining whether a defendant was a major participant in a felony who acted with reckless indifference to human life. The Banks court identified a nonexclusive list of factors relevant to determining whether a defendant was a major participant in a felony that resulted in death: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, supra, at p. 803, fn. omitted.)
In Clark, the Supreme Court set forth an overlapping set of considerations relevant to determining whether a defendant had the required mental state-reckless indifference to human life. These include: "(1) the defendant's knowledge of weapons, number of weapons, and whether the defendant used a weapon; (2) the defendant's physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the felony; (4) the defendant's knowledge of a cohort's likelihood of killing; and (5) the defendant's efforts to minimize the risks of violence during the felony." (People v. Secrease (2021) 63 Cal.App.5th 231, 251-252, review granted June 30, 2021, S268862, overruled in part on another ground in People v. Strong (2022) 13 Cal.5th 698, 709-710, summarizing factors discussed in Clark, supra, 63 Cal.4th at pp. 618-622; see Scoggins, supra, 9 Cal.5th at p. 677.) As to both sets of factors, the Supreme Court emphasized:"' "[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient." '" (Scoggins, supra, at p. 677, citing Clark, supra, at p. 618, and Banks, supra, 61 Cal.4th at p. 803.)
Applying these factors here, we conclude a rational jury could find beyond a reasonable doubt that Jones was a major participant in the robbery of J.V. and that he acted with reckless indifference to human life. Jones was present and personally and actively participated in the robbery, a factor relevant to both major participation and reckless indifference. (Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th at pp. 618-622; Scoggins, supra, 9 Cal.5th at p. 677.) Far from being a getaway driver (see Banks, supra, 61 Cal.4th at pp. 804-805) or a planner who was absent when the lethal violence occurred (see Clark, supra, 63 Cal.4th at pp. 619-620, 623), Jones was on the scene and physically struggled with J.V. in a close enough manner that Jones's DNA was found on J.V.'s fingernail. Jones was "aware of and willingly involved in the violent manner in which the particular offense [was] committed ...." (See Banks, supra, 61 Cal.4th at pp. 801, 803, fn. 5.)
The jury could infer that Jones's presence and participation in the robbery gave him the opportunity to restrain the crime or aid the victim, again a factor relevant to the major participant and reckless indifference inquiries. (Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th at pp. 618-622; Scoggins, supra, 9 Cal.5th at p. 677.) Jones argues Blacknell "suddenly" pulled his gun and "quickly" shot J.V., so Jones had no opportunity to intervene and prevent the murder or assist J.V. But the jury was not obligated to focus solely on "an extremely narrow moment in time immediately prior to the shooting." (People v. Bradley (2021) 65 Cal.App.5th 1022, 1033-1034.) Based on the struggle observed by eyewitnesses, the jury could infer that J.V. resisted the defendants' initial efforts to take his property, a juncture at which Jones could have left the scene and urged Blacknell to do the same. Again, when Geraldine arrived and told the defendants to stop, they looked at her but continued their assault. Although the robbery apparently "was not progressing as anticipated," Jones "did not flee or alter [his] plans until after the shooting occurred." (Ibid.)
Jones also made no effort to assist J.V. after the shooting. Instead, he fled with Blacknell. (See Tison v. Arizona (1987) 481 U.S. 137, 141 [noting the defendants' failure to make an effort to help the victims]; People v. Bradley, supra, 65 Cal.App.5th at p. 1034.) Jones argues his flight was "consistent with someone who is shocked and frightened by the events," but it is undisputed he did not attempt to render any aid to J.V. Although a defendant's actions after the shooting may not always be highly probative of his mental state (Scoggins, supra, 9 Cal.5th at pp. 679-680; In re Taylor (2019) 34 Cal.App.5th 543, 559-560), Jones's flight and failure to render aid was a factor the jury could consider. (Tison, supra, at p. 141; Bradley, supra, at p. 1034.)
There was little evidence about the details of the planning that preceded the robbery, and therefore, as Jones notes, there was little evidence that Jones, as opposed to Blacknell, played a leading role in the planning. (Banks, supra, 61 Cal.4th at p. 803.) But the plan that was arrived at, and in which Jones willingly participated, was a dangerous one-robbing a drug dealer, who might be expected to resist and to have money and other property he would not readily part with. (In re McDowell (2020) 55 Cal.App.5th 999, 1013 [finding of reckless indifference to human life was supported in part by the fact the crime chosen was one "with a particularly high risk of violence-a home invasion robbery of a drug dealer"].) And there was no evidence Jones took measures to reduce the risk of violence, a factor that when present can weigh against a finding of reckless indifference. (Clark, supra, 63 Cal.4th at pp. 621-622.)
The jury reasonably could infer Jones knew Blacknell would be armed with a gun during the robbery, a fact that is relevant although alone it is insufficient to establish reckless indifference to human life. (Banks, supra, 61 Cal.4th at pp. 803, 809; Clark, supra, 63 Cal.4th at p. 618; Scoggins, supra, 9 Cal.5th at pp. 677-678.) About 10 days prior to the shooting, Blacknell sent a text message to Jones about whether it was "good to tote." A police officer testified this means it is safe to carry a gun.
Jones contends the text message does not establish he was aware Blacknell was armed when they robbed J.V. and instead "could have concerned carrying firearms for protection and not for the purpose of committing robberies." But when assessing the sufficiency of the evidence, we review the record in the light most favorable to the prosecution and "[w]e presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (Clark, supra, 63 Cal.4th at p. 610.) The jury was not obligated to give an innocent construction to the text message, and instead could reasonably adopt the prosecution's view-urged in closing argument- that the message was a communication about carrying a gun during the risky robbery attempt that the defendants undertook several days later.
We agree with Jones that there are some factors that do not evidence major participation with reckless indifference to human life. Jones did not use a gun, and there was no evidence he supplied Blacknell's gun. (Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th at p. 618; Scoggins, supra, 9 Cal.5th at p. 677.) Also, nothing in the record indicates Jones was aware Blacknell was likely to kill. (Clark, supra, 63 Cal.4th at p. 621.) Finally, as to the "duration of the interaction" between the defendants and the victim (id. at p. 620), there was not a prolonged period of restraint of the victim, and it appears the overall interaction was relatively short. But as noted, no single factor is indispensable in evaluating the sufficiency of the evidence. (Scoggins, supra, at p. 677.)
After considering the "totality of the circumstances" (Scoggins, supra, 9 Cal.5th at p. 677; see Banks, supra, 61 Cal.4th at p. 802) and analyzing the evidence in the light most favorable to the judgment (Clark, supra, 63 Cal.4th at p. 610), we conclude there was sufficient evidence to allow the jury to find beyond a reasonable doubt that Jones was a major participant in the robbery who acted with reckless indifference to life.
2. Jones's Challenge to CALCRIM No. 540B
The trial court, using CALCRIM No. 540B, instructed the jurors that to convict Jones of first degree felony murder, they had to find he was a major participant in the robbery who acted with reckless indifference to human life. Jones argues the court prejudicially erred because, despite a request by Jones, the court did not include in the instruction the individual Clark factors relevant to determining whether a defendant acted with reckless indifference to human life. The Attorney General contends the alleged omission was harmless.
We conclude Jones's claim is not supported by the record. Jones did not request inclusion of the Clark factors, and the court included all the language on the reckless indifference and major participant issues that Jones did request. There is no basis for reversal.
CALCRIM No. 540B lists the elements that must be proved to establish a defendant's guilt of first degree felony murder when the prosecution's allegation is that a coparticipant in the underlying felony "caused the death of another person." (CALCRIM No. 540B.) In the current version of that pattern instruction, one available theory-the one at issue for Jones here-is that the defendant was a "major participant" in the underlying felony who "acted with reckless indifference to human life." (Ibid.; see § 189, subd. (e)(3).)
The current version of CALCRIM No. 540B includes the following segments of bracketed language that "can be given" when the major participant-reckless indifference basis for culpability is alleged: (1) a one-sentence definition of reckless indifference to human life, (2) a list of factors relevant to determining whether a defendant acted with reckless indifference to human life (adapted from Clark), and (3) a list of factors relevant to determining whether a defendant was a major participant in the underlying felony (adapted from Banks). (CALCRIM No. 540B; Bench Notes to CALCRIM No. 540B (Sept. 2020 supp.) p. 36.) For the definition of reckless indifference, the Bench Notes state the court "may give" the bracketed definition "if requested." (Bench Notes to CALCRIM No. 540B, supra, p. 36.) As to the listed factors from Banks and Clark, the Bench Notes state the trial court "should determine whether the . . . factors need be given." (Ibid.)
On June 26, 2019, during trial, Jones's trial counsel submitted a written set of proposed jury instructions. Counsel listed numerous CALCRIM instructions by number and title, including CALCRIM No. 540B. Below that item on the list, counsel included what appear to be requests that certain numbered elements be given as part of the instruction, including elements "5A/6A" (major participant) and "5B/6B" (reckless indifference). Finally, counsel included a request for specific instructional language on reckless indifference and major participation: (1) a definition of reckless indifference, and (2) the Banks factors relevant to determining whether a defendant was a major participant. The requested language did not include the Clark factors pertaining to reckless indifference that Jones now contends should have been included.
Jones requested the following language: "Reckless indifference to human life defined: A person acts with reckless indifference to human life when he knowingly engages in criminal activity that he knows involves a grave risk of death[.] "When you decide whether defendant was a major participant, consider all the evidence. Among the factors you may consider are: [¶] [(1)] What was the defendant's role in planning the crime that led to the death? [¶] [(2)] What was the defendant's role in supplying or using lethal weapons? [¶] [(3)] What did the defendant know about the dangers posed by the crime, any weapons used, or past experience or conduct of the other participant? [¶] [(4)] Was the defendant in a position to facilitate or prevent the death? [¶] [(5)] Did the defendant's action or inaction play a role in the death? [¶] [(6)] What did the defendant do after lethal force was used? [¶] No one of these factors is necessary, nor is any one of them necessarily enough, to determine that defendant was a major participant." (Italics added; some capitalization removed.)
A few days after counsel filed his request, the trial court instructed the jury with a version of CALCRIM No. 540B that listed the elements that needed to be proved to establish Jones's guilt of first degree felony murder, including that he was a major participant in the robbery (element 5) and that he acted with reckless indifference to human life (element 6). The instruction also included the language Jones had requested on reckless indifference (the definition) and major participant (the Banks factors).
This portion of the court's instruction stated: "A person acts with reckless indifference to human life when he knowingly engages in criminal activity that he knows involves a grave risk of death. "When you decide whether the defendant was a major participant, consider all the evidence. Among the factors you may consider are: [¶] [(1)] What was the defendant's role in planning the crime that led to the death? [¶] [(2)] What was the defendant's role in supplying or using lethal weapons? [¶] [(3)] What did the defendant know about dangers posed by the crime, any weapons used, or past experience or conduct of the other participant? [¶] [(4)] Was the defendant in a position to facilitate or to prevent the death? [¶] [(5)] Did the defendant's action or inaction play a role in the death? [¶] [(6)] What did the defendant do after lethal force was used? [¶] No one of these factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant."
This record does not support the factual predicate for Jones's claim of error. Jones's assertions in his appellate briefs that his trial counsel requested inclusion of the Clark factors (and that the court ignored that request) are incorrect. We therefore need not consider Jones's contention that the court committed "clear error" by purportedly "fail[ing] to give the requested jury instruction," or the parties' arguments as to whether the alleged error was prejudicial.
The written submission by Jones's trial counsel that we discuss above is the sole portion of the record cited by Jones in support of his appellate claim that he requested inclusion of the Clark factors in the instruction. An oral discussion of the instructions was not reported.
In a letter submitted after the close of briefing, Jones brought to our attention our Supreme Court's recent decisions in People v. Strong, supra, 13 Cal.5th 698 and People v. Hendrix (Aug. 22, 2022, S265668) Cal.5th , which he stated were relevant to his claim of instructional error. Neither case assists Jones. Strong held that a jury's special-circumstance true finding that a defendant "was a 'major participant' who acted 'with reckless indifference to human life'" (made before our Supreme Court clarified those terms in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522) does not preclude the defendant from making a prima facie showing of eligibility for resentencing relief under section 1172.6 (formerly § 1170.95). (People v. Strong, supra, 13 Cal.5th at p. 703.) Strong does not support Jones's fact-specific and factually unsupported claim here that the trial court ignored a supposed request to include the Clark factors in CALCRIM No. 540B. Hendrix addressed whether a concededly erroneous jury instruction (there an instruction on mistake of fact) was prejudicial. (People v. Hendrix, supra, Cal.5th[2022 Cal.LEXIS 4970, *1-*2].) As noted in the text, because there was no instructional error here, we need not consider any question as to prejudice.
Jones is also incorrect in stating the court's instruction omitted language that is "part of the standard CALCRIM No. 540B instruction," i.e., a listing of the Clark factors relevant to the reckless indifference determination. First, even in the current version of the instruction, the Clark factors (like the Banks factors) are included in brackets as language that can be included, and the Bench Notes state the trial court "should determine whether the . . . factors need be given." (CALCRIM No. 540B; Bench Notes to CALCRIM No. 540B, supra, p. 36.) The factors are not presented as a standard or mandatory portion of the instruction that must be given in every case.
Second, when this case was tried in mid-2019 (i.e., relatively soon after Senate Bill No. 1437 took effect on January 1, 2019, amending section 189 to specify the major participant-reckless indifference theory as a basis of culpability for first degree felony murder), the then-current version of CALCRIM No. 540B did not include the Banks or Clark factors, even as bracketed optional language. (CALCRIM No. 540B (2015).) Jones has not shown the court omitted language from the standard instruction that was available at trial. To the contrary, the court gave a version of the standard instruction and added all the language Jones requested on the major participant and reckless indifference concepts. Jones has not shown the court erred.
The bracketed definition of reckless indifference and the bracketed Banks factors on the major participant issue-the two portions of supplemental language requested by Jones's trial counsel in June 2019-were proposed that year as revisions to CALCRIM No. 540B by the Judicial Council's Advisory Committee on Criminal Jury Instructions and were added to the published version of the instruction in a September 2019 supplement. (CALCRIM No. 540B (Sept. 2019 supp., rev.) (2015); see Judicial Council of California, Advisory Committee on Criminal Jury Instructions, “Invitation to Comment: CALCRIM-2019-01” (May 28-July 5, 2019), pp. 1-2, 12-14 <https://www.courts.ca.gov/documents/calcrim-2019-01.pdf> [as of August 31, 2022].) The bracketed Clark factors on reckless indifference first appeared in CALCRIM No. 540B in an April 2020 revision. (CALCRIM No. 540B (2020); see Judicial Council of California, Advisory Committee on Criminal Jury Instructions, “Invitation to Comment: CALCRIM-2019-02” (November 19-December 20, 2019), pp. 1-2, 32, 34-35 <https://www.courts.ca.gov/ documents/ calcrim-2019-02.pdf> [as of August 31, 2022].)
Jones does not argue there is a sua sponte instructional duty to enumerate the Clark factors in a major participant-reckless indifference case. (See Bench Notes to CALCRIM No. 540B, supra, p. 36 [stating Clark "did not hold that the court has a sua sponte duty to instruct on" the factors identified in that case].)
3. The Enhancement Term for the Prior Prison Term Must Be Stricken
At Jones's sentencing in January 2021, the court imposed but stayed a one-year term for a prior prison term enhancement under section 667.5, subdivision (b). The parties agree this enhancement is inapplicable to Jones under current law and should be stricken, because his prior prison term (stemming from a robbery conviction) was not for a sexually violent offense. (§ 667.5, subd. (b); People v. Winn (2020) 44 Cal.App.5th 859, 872.) We agree and will strike the enhancement, although we note that, contrary to the parties' framing of the issue, this is not a matter of retroactive application of legislation that took effect after sentencing. The legislation that amended section 667.5, subdivision (b) to limit its applicability to prior prison terms arising from sexually violent offenses-Senate Bill No. 136 (2019-2020 Reg. Sess.)-took effect on January 1, 2020. When Jones was sentenced a year later, in January 2021, the section 667.5, subdivision (b) enhancement already did not apply to him. At sentencing, the prosecutor mentioned this change in the law, and the court agreed the one-year enhancement was not applicable and stated it would "stay" the enhancement. But since the enhancement was not authorized by statute (§ 667.5, subd. (b)), the court should have declined to impose it (rather than imposing it and staying it). We will therefore strike the enhancement.
Recently enacted Senate Bill No. 483 (2021-2022 Reg. Sess.), which took effect on January 1, 2022, added section 1171.1 to the Penal Code, which provided for resentencing of certain defendants whose sentences include section 667.5, subdivision (b) enhancements that were imposed prior to January 1, 2020 (i.e., prior to the effective date of Senate Bill No. 136). Subsequently, Assembly Bill 200, effective June 30, 2022, amended and renumbered section 1171.1 as section 1172.75. (§ 1172.75, subds. (a), (c); Stats. 2021, ch. 728, § 3, adding § 1171.1; Stats. 2022, ch. 58, § 12, renumbering § 1171.1 as § 1172.75.) Section 1172.75, subdivision (d)(1) specifies the resentencing "shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety." Here, we conclude there is no need for a remand for resentencing or a consideration of public safety pursuant to section 1172.75, subdivision (d)(1). Jones, who was sentenced after January 1, 2020, falls outside the resentencing procedure in section 1172.75, and in any event, because the court stayed the one-year section 667.5, subdivision (b) enhancement, striking it will not reduce the amount of custodial time imposed on Jones. We will simply strike the enhancement, rather than remanding for resentencing.
III. DISPOSITION
In No. A161796 (Jones): In Jones's case, the one-year enhancement imposed under section 667.5, subdivision (b) is stricken. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that does not include a reference to a section 667.5, subdivision (b) enhancement, and to transmit the amended abstract of judgment to the Department of Corrections and Rehabilitation.
In No. A162143 (Blacknell): Blacknell's convictions are affirmed. His sentence is vacated and the case is remanded for resentencing. Upon resentencing, a new abstract of judgment shall be prepared that does not include a reference to section 12022.7, subdivision (a) or a statement that an enhancement term was imposed but stayed under that section.
WE CONCUR: POLLAK, P. J. BROWN, J.