Opinion
C085505
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. TERAN CURTIS WASHINGTON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 17CF00734, 17CF01949)
Defendant Teran Curtis Washington pleaded no contest to burglary (Pen. Code, § 459) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). Defendant also admitted to personally using a firearm in the commission of the burglary. (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8).) The trial court sentenced defendant to an aggregate term of 13 years eight months in state prison, including a consecutive upper term of 10 years for the firearm enhancement.
Undesignated statutory references are to the Penal Code.
Defendant also appeals from the judgment in an unrelated matter in Butte County Superior Court, case No. 17CF01949. He does not, however, raise any issue on appeal relative to that matter. Accordingly, and for clarity and brevity, we omit any discussion regarding that matter. --------
On appeal, defendant contends that, under a recent amendment to section 12022.53, this matter must be remanded to the trial court so it may consider whether to strike the firearm enhancement imposed in this case. The People agree that defendant is entitled to the benefit of the recent change to the law because the amendment provides discretion to impose a lesser sentence, and because there is nothing in the amendment to suggest the Legislature intended it to apply prospectively only. The People argue, however, that remand would be futile because the record shows that the trial court would not have stricken the firearm enhancement had it known it had the discretion to do so. On this record, defendant has the better argument.
FACTUAL BACKGROUND
On February 12, 2017, a state of emergency was declared in Oroville because of damage to the Oroville Dam. Defendant and a minor companion approached the Gold Feather Market, which was located in the evacuation zone. Defendant had a shotgun and the minor had a pistol. Near the market, they confronted an individual who asked if they were going to photograph a nearby bridge. Defendant pointed the shotgun at the individual and said, " 'Are you a fucking cop?' " Defendant then fired the shotgun at the store's glass door and kept watch as the minor entered the store and grabbed two cartons of cigarettes. At the time of this event, defendant had a prior felony conviction and was prohibited from possessing firearms.
DISCUSSION
On October 11, 2017, the Governor signed into law Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended section 12022.53, subdivision (h), effective January 1, 2018 (Stats. 2017, ch. 682, § 2). Prior to the enactment of Senate Bill No. 620, and at the time defendant was sentenced by the trial court, section 12022.53 required mandatory imposition of sentencing enhancements in certain enumerated situations. As amended, this provision now states: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
For the reasons stated by this court in People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091, we conclude that the recent amendment to section 12022.53 is retroactive and applies to this case. However, because the record does not contain a clear indication how the trial court would have exercised its discretion if it had been empowered to do so at the time of defendant's sentencing, we conclude remand is required. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428 [finding remand proper because the record was not clear on court's intent to impose the maximum term]; see also People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111 [finding that "speculation about what a trial court might do on remand is 'not clearly indicated' by considering only the original sentence"].)
Here, the trial court imposed the upper term sentence on the firearm enhancement as recommended by the probation department and requested by the People, based on defendant's decision to shoot a gun into a building while the city itself was "in a state of panic and crisis." The building owner could have been inside the building; defendant could have gained access to the building a number of other ways; firing the gun was "overkill."
The court noted "the crime involved callousness and that the victim was particularly vulnerable, in that, as the report reflects, this was a state of emergency for the City of Oroville where evacuation was ordered, a time of great distress." In addition, the court observed that defendant "induced a minor to assist in the commission of the crime," threatened a potential witness with the shotgun, and planned the burglary. The court reiterated that defendant could have gained access in another manner (even using the stock of the gun to break the glass) but chose to fire the shotgun into the glass, "elevating the fear in the community around the business" and thus "elevat[ing] the dangerousness of the situation . . . ."
The trial court's comments reflect the seriousness of defendant's conduct. The Legislature, however, has determined that it might be appropriate to strike or dismiss firearm enhancements even in serious cases. Thus we will remand the matter to allow the trial court to exercise its newly granted discretion. We express no opinion as to how the trial court should exercise its discretion under section 12022.53, subdivision (h) on remand.
DISPOSITION
The sentence is vacated and the matter is remanded for the limited purpose of resentencing. In all other respects, the judgment is affirmed.
BUTZ, J. We concur: ROBIE, Acting P. J. RENNER, J.