Opinion
C079775
02-13-2018
THE PEOPLE, Plaintiff and Respondent, v. DARRELLE LEWIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F00663)
A jury found defendant Darrelle Lewis guilty of one count of discharging a firearm at an occupied motor vehicle (count three) and three counts of assault with a semiautomatic firearm (counts four through six) related to a January 17, 2012, shooting. The jury found that all of these crimes were committed for the benefit of, at the direction of or in association with a criminal street gang—the Del Paso Heights Bloods—with the specific intent to promote, further or assist in criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b) (1) & (4).) With respect to count three, the jury also found true that defendant personally used a firearm and that a principal personally used and intentionally discharged a firearm. With respect to counts four through six, the jury found defendant personally used a firearm. Defendant was also charged with two counts related to December 14, 2011, shootings. The jury found defendant not guilty of one count of discharging a firearm at an occupied motor vehicle (count two) and the court dismissed one count of discharging a firearm at an inhabited dwelling house when the jury could not agree (count one). The court sentenced defendant to a total term of 27 years to life in prison: seven years for count three, plus 20 years for his use of the firearm under section 12022.53, subdivision (c), with the indeterminate term added by the gang enhancement. (See § 186.22, subd. (b)(4).)
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) the trial court erred by removing a juror without first determining if the jury was hopelessly deadlocked, (2) the cumulative effect of the trial court's errors coerced a verdict, (3) the court erred in admitting an unsigned letter that was purportedly written by defendant to one of his victims, (4) there was insufficient evidence to support the jury's findings regarding the gang enhancement, and (5) the admission of hearsay through the prosecution's gang expert violated defendant's confrontation rights under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We agree only that hearsay was erroneously admitted through the prosecution's gang expert. However, the admission of this evidence did not violate defendant's confrontation rights and it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of this error. The parties also submitted supplemental briefing on the applicability of a recent amendment to section 12022.53 permitting the trial court to exercise its discretion under section 1385 to strike or dismiss the section 12022.53, subdivision (c) enhancement. The parties agree that the amendment applies to these proceedings. We will remand for resentencing, but otherwise affirm the judgment.
I. BACKGROUND
A. Charged Crimes
1. December 14, 2011, Shooting (Counts One and Two)
On December 14, 2011, shots were fired into J.J.'s home and garage, at least one of which hit a car belonging to a member of the Strawberry Manor Gangster Bloods, or "Manors" for short. J.J.'s brother-in-law, "Lo," was interviewed by Sergeant Michael Lang on January 4, 2012. Lang testified that Lo is a member of the Strawberry Manor Gangster Bloods. Lo told Sergeant Lang that on the night of the house shooting, the driver of a green Lexus fired two to three shots at Lo as they drove in opposite directions. Lo did not call the police or file a report himself because he did not want to be labeled a snitch. He indicated the driver of the Lexus was the same person who fired shots at J.J.'s house. When asked if the shooter was defendant, Lo said he had already told Lang too much and the sergeant knew who did it. Lang inspected Lo's car and did not see any damage to the rear window. Lo explained he had replaced the window.
2. January 17, 2012, Shooting (Counts Three through Six)
On January 17, 2012, T.J. was driving J.P. and P.P. through Del Paso Heights. P.P. was in the front passenger seat. As they came to a stop sign, the driver of a dark Lexus ES 300 missing a hubcap fired at them. J.P. was later able to identify the car based in part on the hubcap but not the driver.
The police found an expended shell casing inside the Lexus and another outside the car on the crevice between the hood and the windshield. Two funeral pamphlets were inside the car, including one for Javier Ruiz.
3. Uncharged Shooting
S.D. testified that, on Christmas Eve of 2011, she was in her car near her home in Del Paso Heights when "a couple of cars" drove by. A gun went off. S.D. told Detective Brian Bell that she called defendant after hearing he was in the car and asked why he was shooting at her house. She said to him, "there's no gang banging around my house." Defendant said he was shooting at the car in front of him and that as long as S.D. didn't have any "Manor niggas" around her house, there was nothing to worry about. Defendant also said it was his passenger that was shooting out of his car. Defendant told S.D. about the shooting at J.J.'s house. Defendant said, " 'Lo got to go. He can't be over there. And any—any Manor niggas got a curfew. If I see them out after 10:00 I'm shooting them.' " B. Gang Evidence
At trial, S.D. testified the conversation occurred over text message.
Detective Bell also testified as the prosecution's gang expert. He told the jury the Del Paso Heights Bloods are one of the oldest Blood street gangs in Sacramento. They evolved in the early 1980s and there are currently about 200 validated members. The gang claims the color red, as most Blood sets do. The gang also uses the acronym DPH, Del Paso, and the numbers 38 and 3800. The numbers signify the 3800 block of Elm Street, which is one of the gang's subsets. The Del Paso Heights Bloods also use hand signs, making a lower case B to signify they are Bloods along with an H for Heights "and also use a sideways E for Elm Street." Their main rivals are the Strawberry Manor Gangster Bloods and the Oak Park Bloods. Strawberry Manor is a smaller neighborhood near Del Paso Heights. Within the Del Paso Heights Bloods are "a couple little subsets"—Elm Street, THC Town House Villains, Beast Mob and Relz World. Relz World started a few years earlier to recognize the deceased Del Paso Heights Blood gang member it was named after. Detective Bell testified that all of the subsets are part of the same Del Paso Heights Bloods umbrella and are guided by the same rules and codes of conduct that the Del Paso Heights Bloods represent and demand. "They share the same enemies, and they're all part of the same body, just they kind of associate, maybe hang out more within their own little clicks [sic], but they're all part of the Del Paso Heights Bloods."
Detective Bell testified as to the primary criminal activities of the Del Paso Heights Bloods. He also testified as to predicate offenses committed by different members of the Del Paso Heights Bloods.
Detective Bell said the three victims of the January 2012 shooting were not known gang members. In contrast, he opined that defendant was a member of the Del Paso Heights Bloods who committed the charged crimes to promote the Del Paso Heights Bloods, and that the crimes benefited that gang. Detective Bell explained that Javier Ruiz was a good friend of defendant's who was murdered in November 2011 in the Del Paso Heights area by a member of the Strawberry Manor Gangster Bloods. The suspect in that murder is Lo's cousin, and the investigation revealed defendant was the intended target of the murder. The case had not been resolved because witnesses would not cooperate. Detective Bell said this is common in cases involving gang members. Gang members do not want to be considered snitches for cooperating with law enforcement, and they are expected to take care of problems on their own through violence.
Detective Bell testified that, in 2009, defendant was contacted by Officer Armstrong, who validated defendant as a Del Paso Heights gang member based on defendant's red clothing and his "3800" tattoo. In 2010, Detective Quinn contacted defendant after he drove around a corner in a car, squealing his tires, and then walked away quickly. Based on the tattoos on defendant's arms, Detective Quinn validated defendant as a Del Paso Heights gang member. A photo of defendant was found on his cell phone in which he was holding a semiautomatic handgun and a revolver while making an E with his fingers. Another photo depicted money laid out on a bed and the number 38. A third photo included a t-shirt memorializing the individual who inspired Relz World and the number 38. In 2011, Detectives Quinn and Bell contacted and arrested defendant based on an outstanding warrant. Detective Bell said defendant was essentially revalidated after each contact based on the same "3800" tattoo.
The photographs were admitted into evidence.
At the time Detective Bell arrested him for the charged crimes, in January 2012, defendant had tattoos of "3800" (colored in red), "38," "Relz Up" for Relz World, "MK" for Manor killer, "CK" for Crip killer, and "FK" for FAB killer. During his prior contacts with law enforcement, defendant did not have the "Relz Up" and "MK" tattoos that Detective Bell saw in 2012.
The Crips are generally rivals of the Bloods and FAB is a subset of the Oak Park Bloods.
In 2013, Deputy Neal Clanton contacted defendant while he was awaiting trial. Defendant stated he was from Elm Street, which Deputy Clanton understood to refer to a Blood gang set within the neighborhood of Del Paso Heights. Based on this interaction, defendant was again validated as a gang member. C. Jury Deliberations and Removal of Juror No. 7
Jury deliberations began in the afternoon after six days of testimony. For the next five days, the jury deliberated. They asked for numerous readbacks of testimony and clarification of several terms. On the sixth day of its deliberations, the jury sent out the following note: "How and who does the Gang Validation Process? What is the process[?] What officers can [d]o it[?]" Almost two hours later, they notified the court that they had a verdict on counts two and three but were hung on count one and some enhancements. The clerk's minutes reflect that "[t]he Court and Counsel agreed that the twelve jurors would be brought into the courtroom, and the Court would read the Firecracker Instruction." On the record, the trial court instructed the jury with CALCRIM No. 3551, which instructs the jury to continue deliberations and to consider several suggestions during those continued deliberations.
The note made no mention of counts four through six.
The reporter's transcript contains no record of this discussion.
Here, the full instruction provided to the jury read: "So some juries that have had difficulty reaching a verdict are able to resume deliberations and successfully reach a verdict on one or more counts. [¶] Please consider the following suggestions:
"Do not hesitate to reexamine your own views. Fair and effective juror deliberations require a frank and forthright exchange of views. [¶] Each of you must decide the case for yourself and form your individual opinion after you have fully and completely considered all of the evidence with your fellow jurors. [¶] It is your duty, as jurors, to deliberate with the goal of reaching a verdict, if you can do so, without surrendering your individual judgment. [¶] Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict. [¶] Both the People and the defendant are entitled to the individual judgment of each juror. [¶] It's up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective. [¶] Let me know whether I can do anything to help you further, such as give you additional instructions or clarify instructions that I've already given you. [¶] Please continue your deliberations at this time. [¶] If you wish to communicate with me further, please do so in writing using the form my bailiff has given you." (CALCRIM No. 3551.)
With respect to the jury's note pertaining to gang validation, the court explained "[t]hat's a matter that is presented in evidence, and you have all the evidence before you. We're not going to reopen evidence on that issue."
On the resumption of its deliberations, the jury requested readbacks of testimony from Sergeant Lang, Detective Bell, Officer Clanton and Lo. On the seventh day of deliberations, the jury sent a note at 9:30 a.m., explaining "[w]e are no longer deliberating[;] hung on some charges but have reached verdict on some." The court had the jury recess until 1:30 p.m., at which point a different attorney appeared for defendant and agreed to continue the matter until the following morning when defendant's usual counsel would be present. At 1:45 p.m. on the same day, the jury foreperson sent an additional note that provided some explanation for the impasse: "I have a concern about a juror that has made com[m]ents about the case that are [prejudicial and] have been pointed out by several [jurors and] another one that wants validation information that we do not have in evid[e]nce [and] does not trust what we have." The court directed the jury to return the following morning.
On the eighth day of deliberations, the court separately questioned the foreperson and Juror No. 7 outside the presence of the other jurors about the issues raised by the foreperson's note and Juror No. 7's willingness to participate in deliberations.
The foreperson explained Juror No. 7 made statements that her mind was made up before entering the jury room, and expressed the opinion that the district attorney had to get a conviction to keep her job. The foreperson said Juror No. 7 participated in deliberations in the beginning, but later "pretty much" refused to participate or said she was participating when in fact she was not. The foreperson said there were a couple of jurors "that don't seem to be participating in the process," but Juror No. 7 "is the hardest one that I've been referring to." It was the foreperson's opinion that Juror No. 7 was refusing to participate in the deliberation process "[a]t this point."
The court asked the foreperson whether letting the lawyers address the questions that had been raised in the jury's notes would assist the jury in coming to verdicts and findings on what it was hung on. The foreperson replied, "I think it's worth a shot." The foreperson also added that the question regarding validation was "another sticking point" and, "I can't figure out a way to get over that hump myself. I've tried."
Before the court brought in Juror No. 7, defense counsel argued that asking her about her comments about the district attorney would create a chilling effect: "This jury has been deliberating for at least seven full days, an inordinately long period of time. I imagine all kinds of things have been said." He added, "the jury is at an impasse and because of the length of deliberations, it's time to call it a day." The court stated, "They've been at this much longer than we told them they'd be here. I can absolutely imagine that they are tired and frustrated of expressing their opinion and tired and frustrated of listening to the other's opinion. But unless they say we—no more deliberation will help and this is a hang, or unless this person says I will not—I will not listen to or contribute to this conversation, then I don't think there's anything to do but make this inquiry."
Juror No. 7 denied having made up her mind before deliberations began or that any juror stated the district attorney's interest in the case was in holding on to a job. The court asked if having the lawyers address the jury's questions such as by rearguing would be helpful. Juror No. 7 responded, "I think that the things that we haven't come to a conclusion—we haven't come unanimous together on are completely different issues. So there isn't going to be one or two things that's going to sway somebody or make them see something differently that I can see. I believe that we've gone over the information an awful lot." She said she was willing to continue to express her opinion and participate in discussions, but added, "those discussions are done. I mean, they—they have to be done. We've gone over it so many times." Before the court cut her off, she added that "[w]e don't have a one- or two-person hold out."
The trial court decided not to remove Juror No. 7: "I don't think there's clear enough evidence that she is refusing to deliberate, although the evidence is somewhat ambiguous when she says that deliberations are over. So I would . . . decline to remove her from the jury."
The court explained it would be entertaining the question of whether the jury was at an impasse but for the question regarding gang validation: "There is one juror who wants validation information that we don't have in evidence and doesn't trust what we have. And, frankly, I think that's just an ultimately curable problem." The prosecutor requested counsel reargue the issue. Defense counsel opposed reargument on the grounds that it would put more pressure on holdout jurors and give the impression that they should come to a verdict. The court found good cause to have reargument.
Before the parties reargued, the court told the jury: "[W]hat I have discerned is that it may be that if I let the lawyers address the questions you guys have sent to us, that that may help you reach some—some decision where you haven't been able to move forward. I want to emphasize that the Court is not suggesting and it would be entirely improper to suggest that anybody should change their verdicts simply in order—or, change their opinions simply to reach a verdict. If the result of your full deliberations are that you cannot reach a verdict, then the Court will accept that."
The jury resumed deliberations and requested an additional readback of Detective Bell's testimony before rescinding that request.
Before the ninth day of deliberations began, Juror No. 7 gave a letter to the bailiff that stated:
"I am juror # 7 and request to be taken off this jury today.
"I should have asked you to do this yesterday when[ ]you were questioning me about the personal allegations made against me by the foreman. I didn't make this request then because like most of the other jurors I thought our job was complete. [Two days ago,] we voted for the 6th or [7th] time and asked to submit the results to you. We waited the entire day and were then told that [i]t would happen the next morning. But that did not happen either.
"I am a solo private start-up business owner and have been working late nights and full weekends to keep my new business a float [sic]. I drive nearly 2 hours to court each[ ]day from Folsom [i]n extremely heavy traffic.
"I do not mind doing[ ]my civic duty but that is not what is happening in that jury room. The insults and pressure has [sic] become exhausting for many of us as you were informed about yesterday and there doesn't seem to be an end in sight.
"Thank you for my release.
"Juror #7."
Before Juror No. 7 was brought into the courtroom, defense counsel argued, "it appears that jurors are deadlocked and that information may or may not—has not been communicated clearly to the Court is the feeling I get from this letter and that gives me the feeling that at least this jury [sic] or other jurors are being bullied and held hostage. And I think it's time to inquire in whatever way the Court can as to whether the jury is hopelessly deadlocked." Further, defense counsel requested the court grant a mistrial "if the environment of the jury has gotten so pointed that people can't even communicate. I don't think they're unwilling. I think it's just the environment has gotten so pointed probably by the behavior of the foreperson and perhaps others."
The trial court explained, "[i]f all the Court had was we think we're hung on a letter from the entire jury, on a letter from the foreperson, or on a letter from an individual juror, the next course of Court's business would be to conduct an inquiry if they are hung. But . . . they throw in something else that the Court has to take care of before and that is juror No. 7 is clearly not only asking to be relieved but she is assuming she is released. She closes with 'Thank you for my release.' So the Court has to determine first whether she is capable of continuing and then we will consult again before we go further."
After Juror No. 7 was brought to the courtroom, the court asked whether she felt she could continue participating in deliberations. Juror No. 7 replied, "I would have to say no." The court asked her to explain her reaction earlier in the morning after she handed her letter to the bailiff and he attempted to bring the jurors into the jury room. Juror No. 7 stated the bailiff told her there would not be a decision on her letter right away and she asked whether she had to go back into the jury room. After he indicated she did, "he knew I was stressed about that. And then he goes, 'Well, hold on.' And then he helped me out by saying we could wait until now.' " After the court expressed it had reached the limits of what it could inquire about regarding the reasons she could not continue, Juror No. 7 interjected, "it's in my letter in the second paragraph."
Defense counsel asked Juror No. 7 if she could continue deliberating through the end of the day. She responded, "If I thought that it could be helpful, I would absolutely say yes, but . . . what would be the point? That's—that's kind of where I'm at. I don't know what—I don't know which way to go. That's why I wrote the letter. I'm completely baffled." The court asked if there was anything they could do that would make her willing to continue deliberations. When the court clarified that it could not limit deliberations to the end of the day, Juror No. 7 replied, "I can't go back in there indefinitely."
Before the court ruled, the bailiff went on the record regarding the exchange he had with Juror No. 7 after he gave the court her letter. "When I was going to go out and put them all inside the jury room, she was standing outside our doors. I walked out. I said, 'Okay. You've got to go back in.' As soon as I said that, she started getting emotional and she asked me, 'Do I have to go back in?' I said, 'Yeah, you have to go back in.' And I could see her getting more emotional so I said, 'Okay. You know what I'm going to do? I'm going to go talk to the Judge real quick and we'll find out what's going to happen.' "
Defense counsel continued to assert the issue was that the jury was deadlocked, and not that Juror No. 7 was unwilling to deliberate.
The court stated the jury knew how to raise the issue of whether it was hung: "But when they do that, they then throw in something else that—that the Court must inquire before we get into that question of—of whether they're hung. So the question before the Court at this time is whether to remove juror no. 7. And while I can appreciate the reasons that she says she cannot deliberate, I cannot take that into consideration in terms of inquiring further the jury on the issue of whether she—she is disabled."
The court found, "juror No. 7 is unable to continue her deliberations and I'm going to remove her from the jury." After so doing, the court instructed the jury, "Any one of you has a right to send a note to the Court and ask for explanation or whatever you want. You get to send a note to the Court. I am going to require, however, that before any note is sent to the Court by any juror that every juror be aware of the content of that note."
After resuming deliberations, the jury requested readbacks of testimony from Sergeant Lang and a witness regarding the December 14, 2011, shooting. On the tenth and final day of deliberations, the jury sent a note explaining it had reached a verdict on five of the six counts but was deadlocked as to count one. D. Sentencing
The court sentenced defendant to a total term of 27 years to life in prison: seven years for discharging a firearm at an occupied motor vehicle as found in count three (§ 246), plus 20 years under section 12022.53, subdivision (c) for defendant's use of the firearm, with the indeterminate term added by the gang enhancement. (See § 186.22, subd. (b)(4)(A)-(B) [indeterminate enhancement for certain enumerated crimes including felony violation of § 246].) The court stayed sentences on counts four, five and six as well as the remaining enhancements.
II. DISCUSSION
A. Removal of Juror No. 7
Defendant contends the trial court erred by removing Juror No. 7 without first determining whether the jury was hopelessly deadlocked, and that this error violated his constitutional rights. We are not persuaded.
Section 1089 provides, in pertinent part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate."
When the trial court receives notice that a ground for excusing a juror under section 1089 may exist, it has an affirmative obligation to investigate. (People v. Duff (2014) 58 Cal.4th 527, 560; People v. Bonilla (2007) 41 Cal.4th 313, 350.) "Out of concern to protect the sanctity of jury deliberations, we have cautioned that this inquiry 'should be as limited in scope as possible' and 'should focus upon the conduct of the jurors, rather than upon the content of the deliberations.' " (People v. Lomax (2010) 49 Cal.4th 530, 592.) "Both the scope of any investigation and the ultimate decision whether to discharge a given juror are committed to the sound discretion of the trial court." (People v. Bonilla, supra, at p. 350.) "[I]n reviewing a decision to excuse a juror, we do not ask only whether substantial evidence supports the decision—i.e., whether there is evidence from which a reasonable trial court could have concluded dismissal was warranted—but further whether it appears as a 'demonstrable reality' that the trial court actually did rely on such evidence as the basis for its decision." (People v. Duff, supra, at p. 560.) "The requirement we add to traditional substantial evidence review is that the record establish the actual basis for the trial court's decision. So long as it does, we ask only whether the evidence relied upon was sufficient to support that basis as grounds for dismissal; we do not independently reweigh the evidence or demand more compelling proof than that which could satisfy a reasonable jurist." (Ibid.)
Defendant criticizes the trial court for not determining whether the jury was hopelessly deadlocked before discharging Juror No. 7. "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." (§ 1140.) "The determination whether there is reasonable probability of agreement rests in the sound discretion of the trial court." (People v. Rodriguez (1986) 42 Cal.3d 730, 775.) Much of the record defendant cites to support his claim was from before the additional closing arguments. At that point, the court essentially did determine there was a reasonable probability of agreement among the jurors. The court expressed the opinion that the validation question was "an ultimately curable problem" that obviated the need to further consider whether the jury was deadlocked. Defendant "criticizes the court for not questioning individual jurors on the probability of agreement. [Citation.] Though some such questioning may be required to establish legal necessity for discharging the jury [citations], it is not a prerequisite to denial of a motion for mistrial." (Id. at pp. 776-777.) Defendant also notes the court did not ask the foreperson whether the jury was "hopelessly deadlocked" in particular or ask for a numerical split of the jury. These questions appear to have been unnecessary given the foreperson's representation that there was a question regarding gang validation that was a "sticking point" that might be helped by rearguing the issue. While Juror No. 7's letter indicated that most of the other jurors thought their job was complete prior to the reopening of closing arguments, the trial court had evidence suggesting additional closing arguments would be helpful. And additional closing arguments apparently did assist the jury because Juror No. 7 was not the juror with questions regarding gang validation, and the jury ultimately reached a conclusion on the gang enhancements. The court also specifically told the jury that it had discerned that additional arguments might be helpful, but if the jury could not reach a verdict, the court would accept that. Given these facts, it was not an abuse of discretion for the trial court to wait to see if the jury sent another note after hearing additional closing arguments. And the next day, when Juror No. 7 sent her letter, it was not an abuse of discretion for the court to address her refusal to deliberate and not reopen the issue of whether the jury was deadlocked without any further information on that point. As the People correctly observe, if Juror No. 7 really was refusing to deliberate, this fact would also suggest there could not yet be a true deadlock.
As to the trial court's analysis of the letter, Juror No. 7 requested a discharge and then told the court she could not continue participating in deliberations. A juror who refuses to deliberate may be removed on the theory that such a juror is " 'unable to perform his [or her] duty' " under section 1089. (People v. Cleveland (2001) 25 Cal.4th 466, 475.) "A refusal to deliberate consists of a juror's unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views." (Id. at p. 485.)
Defendant focuses on the evidence Juror No. 7 had originally deliberated but believed there was no point to further discussions. He argues the record failed to establish a demonstrable reality that Juror No. 7 was unable to perform her duties. If this was the only evidence before the trial court, we would agree with defendant. (And so did the court when it refused to excuse Juror No. 7 the previous day.) "A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views." (People v. Cleveland, supra, 25 Cal.4th at p. 485, emphasis added.) But this was not the only reason Juror No. 7 was excused. It is critical that the trial court was dealing with a letter from Juror No. 7 in which she asked to be excused from the jury and assumed she had been excused, and that she did not return to the jury room after she gave her letter to the bailiff because it made her too stressed or emotional to do so. Upon questioning, she said she could not participate in further deliberations. The record thus establishes as a demonstrable reality that Juror No. 7 was unable to perform her function as a juror. Because the trial court did not abuse its discretion in excusing Juror No. 7, the discharge of this juror also did not violate defendant's constitutional rights. (People v. Lomax, supra, 49 Cal.4th at p. 592.) B. No Cumulative Error
Defendant contends the cumulative effect of the trial court's errors coerced a verdict. In addition to the claim we just rejected, defendant's opening brief asserts the trial court erred by: (1) giving the so-called "firecracker" instruction to the jurors before determining whether the jury was hopelessly deadlocked and (2) reopening closing arguments. None of his claims establish any error.
1. "Firecracker" Instruction
As to the "firecracker" instruction, defendant forfeited any claim of error by failing to object. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1038 [defendants forfeited claim of coercion based on trial court's comments regarding scheduling because they did not object]; People v. Neufer (1994) 30 Cal.App.4th 244, 253-254 [appellant waived argument that trial court coerced jury's verdict by having 11-to-1 jury resume deliberations].) Defendant claims the clerk's minutes do not unequivocally establish he agreed to the instruction. The minutes state that "[t]he Court and Counsel agreed that the twelve jurors would be brought into the courtroom, and the Court would read the Firecracker Instruction." On reply, defendant contends the minutes reflect only that he agreed the jury would be brought into the court room and that the court would read the instruction, not that the instruction itself was appropriate. Even if this was true, defendant never briefs the issue of whether the instruction itself was appropriate. Thus, the claim is still forfeited.
2. Reopening Closing Arguments
As to the reopening of closing arguments, defendant relies entirely on federal authorities despite the fact that permitting attorneys to make additional closing arguments is authorized under California law. (Cal. Rules of Court, rule 2.1036(b)(3).) We previously approved the reopening of closing arguments under similar circumstances in People v. Young (2007) 156 Cal.App.4th 1165. As in that case, the trial court's remarks were not coercive. (See id. at p. 1172.) Before the additional closing arguments began, the court emphasized that if the jurors could not reach a verdict, the court would accept that fact. It was the jurors who volunteered that the issue of gang validation required further clarification. And when the foreperson "agreed additional argument might help them in reaching a verdict, it was not inappropriate for the court to seek to offer that alternative to aid the jury. Further, the procedure was neutral, giving each side a brief opportunity to argue. We see no impropriety in the court's exercise of its discretion." (Ibid.)
Because defendant has not established that any of the claimed errors were individual errors, we reject his claim of cumulative error. (People v. Beeler (1995) 9 Cal.4th 953, 994.) C. Admission of Letter to P.P.
Over defendant's objection, the trial court admitted into evidence an unsigned letter that was purportedly written by defendant to P.P., one of the victims of the January 2012 shooting. Defendant contends the trial court erred in admitting the letter because it was not properly authenticated. We find no error.
M.K. testified that, while her boyfriend was incarcerated, he sent her instructions to read a letter to P.P. P.P. testified M.K. gave her the letter. At the time, the only connection P.P. had to someone in jail was the person who shot at her. P.P. had never met defendant. She said the letter contained an apology for unintentionally shooting her car and described the author's car as a Lexus "on rims." The letter also apparently asked her to tell the other two people that were with her that night not to go to court or talk to the police, and said that the author would pay P.P. not to go to court.
Despite being admitted into evidence, the letter is not part of the record on appeal.
"We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion." (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) A writing must be authenticated before it may be received into evidence or secondary evidence of its content may be received into evidence. (Evid. Code, § 1401.) A document's contents may be used to authenticate it: "A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing." (Evid. Code, § 1421.) Courts have found authentication where the writing expressed a desire to avoid a conviction and therefore made it unlikely that anyone other than the defendant was the author of the note. (People v. Lynn (1984) 159 Cal.App.3d 715, 735 [writing expressed desire to avoid murder conviction by recipient's testimony and included veiled threats of harm].) "Essentially, what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' " (People v. Goldsmith, supra, at p. 267.) Here, the trial court determined the letter was self-authenticating. At a minimum, the expressed desire to avoid a conviction by P.P.'s testimony and offer to pay her money if she did not testify make it unlikely that anyone other than defendant authored the letter. (People v. Lynn, supra, at p. 735.) Additionally, the letter apparently refers to the correct number of victims and the fact that the shooter's car was a Lexus with distinctive hubcaps. That information was at least mostly corroborated by the evidence adduced at trial. While other persons could have known about the information set forth in the letter, Evidence Code section 1421 applies if it is "unlikely" that someone other than the claimed author would have known the information contained therein. Here, only a narrow class of persons would have known about all the matters discussed in the letter, let alone been capable of transmitting the letter through M.K.'s boyfriend. Furthermore, there is no evidence the letter was fabricated by anyone. Based on these facts, the trial court did not abuse its discretion in admitting the letter. The jury was, of course, free to reject the prosecution's argument that the letter was written by defendant. D. Gang Enhancement
Defendant raises two claims regarding the gang enhancements under section 186.22. This statute, part of the California Street Terrorism Enforcement and Prevention Act (the STEP Act) (§ 186.20 et seq.), imposes an additional term of imprisonment on "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) For certain felonies, such as a felony violation of section 246, the defendant is sentenced to an indeterminate term of life imprisonment. (§ 186.22, subd. (b)(4).) For purposes of either sentence enhancement, a "criminal street gang" is defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [the statute], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (Id., subd. (f).) A "pattern of criminal gang activity" is "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [certain] offenses [identified in the statute], provided at least one of these offenses occurred after the effective date of [the law] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (Id., subd. (e).)
1. Sufficiency of the Evidence
Defendant argues there was insufficient evidence the predicate acts were committed by the same gang that defendant sought to benefit by committing the charged crimes. We disagree.
Defendant's argument relies primarily on People v. Prunty (2015) 62 Cal.4th 59 (Prunty), in which our Supreme Court held "that the STEP Act requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang." (Id. at p. 67.) And "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71.)
The court explained that the necessary "connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization. [¶] Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22[, subdivision] (f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22[, subdivision] (b). But it is not enough . . . that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Prunty, supra, 62 Cal.4th at pp. 71-72, fns. omitted.)
The court in Prunty offered illustrative examples of how to prove the requisite associational or organizational connection. (Prunty, supra, 62 Cal.4th at p. 77.) As pertinent here, "[t]he most straightforward cases might involve subsets connected through formal ways, such as shared bylaws or organizational arrangements." (Ibid.) In more informal associations, "evidence that two . . . subsets have professed or exhibited loyalty to one another would be sufficient to show that the two subsets collaborate or cooperate. [Citation.] So too would evidence of fluid or shared membership among the subset or affiliate gangs." (Id. at p. 78.) "In general, evidence that shows subset members have communicated, worked together, or share a relationship (however formal or informal) will permit the jury to infer that the subsets should be treated as a single street gang." (Id. at pp. 78-79.) Evidence that gang subsets acknowledge one another as part of the same organization, coupled with evidence that the organization tends to operate in decentralized fashion in a relevant geographic area may also be sufficient. (Id. at p. 79.)
Defendant's briefing starts with the false premise that the predicate acts needed to have been committed by members of the Elm Street subset because the prosecution's theory was that defendant was a member of that subset. Not so. Defendant was charged with committing crimes for the benefit of, at the direction of or in association with the Del Paso Heights Bloods with the specific intent to promote, further or assist in criminal conduct by gang members. Defendant may have admitted he was a member of the Elm Street subset, but Detective Bell opined that defendant was a member of the Del Paso Heights Bloods who committed the charged crimes to promote the Del Paso Heights Bloods, and that the crimes benefited that gang. The predicate offenses were also committed by members of the Del Paso Heights Bloods.
Regardless, the difference between this case and Prunty is that here there was evidence of an associational and organizational connection uniting the subsets that comprise the Del Paso Heights Bloods. Detective Bell testified that all of the subsets are part of the same Del Paso Heights umbrella and are guided by the same rules and codes of conduct that the Del Paso Heights Bloods represent and demand. "They share the same enemies, and they're all part of the same body, just they kind of associate, maybe hang out more within their own little clicks [sic], but they're all part of the Del Paso Heights Bloods." Detective Bell also testified Del Paso Heights Bloods generally use the numbers 38 and 3800 and make a sideways E with their hands, not just members of the Elm Street subset. Additional evidence supported Detective Bell's assertion that the subsets were not truly distinct. Defendant's tattoos included the numbers 38 and 3800 and referenced the Relz World subset. Defendant's briefing highlights specific evidence that was not introduced in this case, including evidence of actual bylaws or organizational rules. But we do not read Prunty as requiring such evidence even when the prosecution relies on this theory of associational or organizational connection. The case it cites in support of the proposition that proof that different subsets are governed by the same bylaws may suggest that they function within a single gang is one in which a gang expert testified "that all the Norteño gangs follow the same bylaws as the Norteño prison gangs." (In re Jose P. (2003) 106 Cal.App.4th 458, 463, disapproved on another ground in Prunty, supra, 62 Cal.4th at p. 78, fn. 5; see Prunty, supra, at p. 77.) Moreover, we must apply Prunty alongside the substantial evidence test.
"We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction." (People v. Wilson (2008) 44 Cal.4th 758, 806.) "[W]e review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that 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. Bolin (1998) 18 Cal.4th 297, 331.) We view the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Avila (2009) 46 Cal.4th 680, 701.) Reversal is unwarranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin, supra, at p. 331.)
In Prunty, the prosecution introduced evidence of two predicate offenses involving three alleged Sacramento Norteño subsets—Varrio Gardenland Norteños, Del Paso Heights Norteños and Varrio Centro Norteños. (Prunty, supra, 62 Cal.4th at p. 82.) The gang expert characterized these groups as Norteños, but "he otherwise provided no evidence that could connect these groups to one another, or to an overarching Sacramento-area Norteño criminal street gang." (Ibid.) In particular, he "never addressed the Norteño gang's relationship to any of the subsets at issue. . . . Instead, [the expert] simply described the subsets by name, characterized them as Norteños, and testified as to the alleged predicate offenses." (Id. at p. 83.) While the expert testified that Norteño street gangs are associated with the Nuestra Familia prison gang, this "does not indicate whether the specific subsets involved in committing the predicate offenses have any ongoing relationship—the kind of relationship that amounts to being part of the same group—with the entity defendant sought to benefit." (Ibid.) Here, in contrast, evidence regarding the associational and organizational connection among Del Paso Heights Bloods subsets and the umbrella organization was present. As our Supreme Court emphasized in Prunty, "[t]he key is for the prosecution to present evidence supporting a fact finder's reasonable conclusion that multiple subsets are acting as a single 'organization, association, or group.' " (Id. at p. 80.) We conclude the prosecution satisfied that burden here.
2. Hearsay
Sanchez, supra, 63 Cal.4th 665 clarified the law on the proper scope of expert testimony, as follows: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Id. at p. 686.) If the out-of-court statements constitute testimonial hearsay, there is a confrontation clause violation, absent a showing of unavailability and either a prior opportunity for cross-examination or forfeiture through wrongdoing. (Ibid.) "An expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Id. at p. 685.) An expert may also relate as true case-specific facts that are independently proven by competent evidence or covered by a hearsay exception. (Id. at p. 686.) To illustrate these principles, the Sanchez court explained: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Id. at p. 677.)
Defendant argues his rights under the confrontation clause were violated because Detective Bell relied on hearsay reports from Officer Armstrong and Detective Quinn in testifying that defendant was "validated" as a gang member during encounters with those individuals. Defendant's trial counsel did not forfeit this claim by failing to raise it because it would have been futile under the law prevailing at the time. (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507.) The People appear to concede that this information is now considered inadmissible hearsay under Sanchez. Thus, "the critical question under the confrontation clause is whether the out-of-court statements were 'testimonial' as required to implicate the clause under Crawford v. Washington (2004) 541 U.S. 36, 51-52, 68." (People v. Ochoa (2017) 7 Cal.App.5th 575, 583.) Defendant's briefing is conspicuously silent on this critical question. Despite arguing that his rights under the confrontation clause were violated, nowhere does he explain how the challenged hearsay qualifies as a testimonial statement.
In particular, the Sanchez court disapproved its prior decision in People v. Gardeley (1996) 14 Cal.4th 605 "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) --------
"Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, supra, 63 Cal.4th at p. 689.) Also, in order to be considered testimonial, "the statement must be made with some degree of formality or solemnity." (People v. Dungo (2012) 55 Cal.4th 608, 619; see also Sanchez, supra, at pp. 692-694.) In Sanchez, our Supreme Court concluded that the police reports and STEP notices at issue were testimonial but a field identification card is only testimonial if it is "produced in the course of an ongoing criminal investigation." (Sanchez, supra, at p. 697.)
Here, there is insufficient information to discern whether the challenged hearsay was testimonial. Detective Bell explained that Detective Quinn contacted defendant after he drove around a corner squealing his tires and then walked away quickly. Detective Bell testified that he believed the contact between defendant and Officer Armstrong was "also" the result of a traffic stop. Detective Bell testified that during these contacts defendant was not involved in any "separate criminal street gang activity." It is not clear that he was engaged in any criminal activity at all. Detective Bell also does not indicate how he learned any of this information. For instance, he made no mention of relevant police reports. In short, "the record is silent as to whether . . . validation as a [gang] member was or was not made in the course of an ongoing investigation, or for the purpose of memorializing facts related to past criminal acts for future use at trial, or whether it was a sworn statement or otherwise attended by some level of solemnity. Therefore, we cannot determine whether the statement was testimonial or not." (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 414.)
"Had defendant lodged contemporaneous objections during trial, the People, as the proponent of the evidence, would have had the burden to show the challenged testimony did not relate testimonial hearsay." (People v. Ochoa, supra, 7 Cal.App.5th at p. 584.) But defendant "failed to object to the expert's testimony on the ground it violated his right to confrontation, resulting in an undeveloped record." (Ibid.) "[D]ue to defendant's failure to object, the record is not clear enough for this court to conclude which portions of the expert's testimony involved testimonial hearsay. Accordingly, defendant has not demonstrated a violation of the confrontation clause." (Id. at p. 586.)
Where there was no confrontation clause violation, "[w]e evaluate prejudice resulting from the allowance of expert testimony in violation of Sanchez under the standard of People v. Watson (1956) 46 Cal.2d 818, . . . which requires reversal if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Jeffrey G., supra, 13 Cal.App.5th at p. 510; see also People v. Ochoa, supra, 7 Cal.App.5th at p. 589.) As the prosecution correctly explained to the jury, the enhancements set forth in section 186.22, subdivision (b) "do[] not depend on membership in a gang at all." (People v. Albillar (2010) 51 Cal.4th 47, 67-68.) In light of this and the other evidence defendant does not challenge, including his statements to S.D. indicating his intent to shoot members of the Strawberry Manor Gangster Bloods, his admission to Deputy Clanton of his membership in the Elm Street subset, and various photographs depicting defendant's gang tattoos and use of gang signs, we conclude it is not reasonably probable that the jury would have reached a more favorable result if it had not been told defendant was validated as a gang member based on these tattoos in 2009 and 2010. E. Sentencing
The court sentenced defendant to a total term of 27 years to life in prison: seven years for discharging a firearm at an occupied motor vehicle as found in count three (§ 246) plus 20 years under section 12022.53, subdivision (c) for defendant's use of the firearm, with the indeterminate term added by the gang enhancement. (See § 186.22, subd. (b)(4)(A)-(B) [indeterminate enhancement for certain enumerated crimes including felony violation of § 246].) At the time of sentencing, the imposition of the section 12022.53, subdivision (c) enhancement was mandatory, and the court had no discretion to strike it. (Former § 12022.53, subd. (h) ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section"].) On October 11, 2017, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended this rule. Effective January 1, 2018, section 12022.53, subdivision (h) allows a court to exercise its discretion under section 1385 to strike or dismiss this enhancement: "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." (Sen. Bill No. 620 (2017-2018 Reg. Sess.) § 2.)
"Whether a statute operates prospectively or retroactively is, at least in the first instance, a matter of legislative intent. When the Legislature has not made its intent on the matter clear with respect to a particular statute, the Legislature's generally applicable declaration in section 3 provides the default rule: 'No part of [the Penal Code] is retroactive, unless expressly so declared.' " (People v. Brown (2012) 54 Cal.4th 314, 319.) The People concede, however, that the amendment applies retroactively to defendant's case because it is not yet final. The People's position is based on In re Estrada (1965) 63 Cal.2d 740 (Estrada), and its "important, contextually specific qualification to the ordinary presumption that statutes operate prospectively" (People v. Brown, supra, at p. 323). As relevant here, when an amendment vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty, we presume the Legislature intended the new law to apply to cases where the judgment has not yet become final absent a contrary indication. (People v. Francis (1969) 71 Cal.2d 66, 75-76 (Francis).) The fact that Senate Bill No. 620 specifies that the court may strike or dismiss an enhancement "at the time of sentencing" or at "any resentencing that may occur pursuant to any other law" appears to be unique. (Sen. Bill No. 620 (2017-2018 Reg. Sess.) § 2.) This language was not present in the amendment at issue in Francis. (Stats. 1968, ch. 1465, § 1, pp. 2930-2931.) Nonetheless, we conclude that it is at best ambiguous as to whether the Legislature intended to displace the Estrada rule. Accordingly, Senate Bill No. 620 applies to defendant's appeal, and we accept the People's concession on this point.
The People contend no purpose would be served in remanding because no reasonable court would exercise its new discretion to strike the enhancement. Presumably, the People refer to the fact that a court's discretion to strike or dismiss a finding under section 1385 is limited by the concept that the dismissal must be "in furtherance of justice," which " ' "requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]" [Citations.] At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." ' " (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) The People, however, do not support their argument that no reasonable court would exercise its new discretion to strike the enhancement with authority or develop any argument regarding the limits of the trial court's discretion under Senate Bill No. 620.
The argument that the People do support with citations to authority is that remand is unnecessary because "the sentencing court clearly indicated that it would not, in any event, have exercised its discretion." (See People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530, fn. 13; see also People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) This argument does not persuade. The record shows that the trial court found no circumstances in mitigation, and found two circumstances in aggravation in imposing the upper term of seven years for count three: "I'm going to find shooting into the car, but also three kids in the car, I'm going to find that is an aggravating circumstance. I'm not going to sentence you on those three, counts four, five and six which were shooting at that kid, that kid and that kid. I'm not going to sentence you on those, but I am going to take that into consideration in figuring out which is the right term to give you on shooting into the car. I'm also considering that on your formal probation at the time of the commission of this offense, and that that probation was for possession of a firearm." The court rejected the assertion that "planning and sophistication" was an aggravating circumstance.
The record is silent as to the trial court's thoughts regarding the section 12022.53, subdivision (c) enhancement. While the fact that the trial court chose seven years (rather than three or five) as the base term is potentially suggestive, it is not equivalent to adding an additional 20 years to the term. The record does not clearly indicate that the court would not, in any event, have exercised its discretion to strike or dismiss the section 12022.53, subdivision (c) enhancement had it been possible to do so at the time of the original sentencing. (See People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530, fn. 13.) Further, the amendments effected by Senate Bill 620 allow the court to strike, among others, enhancements under section 12022.53, subdivision (d), which involve the discharge of a firearm resulting in death or great bodily injury. Thus, while the trial court's comments reflect the seriousness of defendant's crimes, the Legislature has determined that it might be appropriate to strike a firearm enhancement even in serious cases. We express no opinion as to how the trial court should exercise its newly granted discretion under section 12022.53, subdivision (c) on remand. We conclude only that it is the trial court's function to exercise this discretion in the first instance.
III. DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the cause is remanded to the trial court for the purpose of allowing the court to exercise its discretion whether to strike or dismiss the enhancement under section 12022.53, subdivision (c). Upon doing so, the court shall resentence defendant accordingly.
/S/_________
RENNER, J.
We concur:
/S/_________
HULL, Acting P. J.
/S/_________
ROBIE, J.