Filed 11/19/18 P. v. Abduh-Salam CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendants Raphael Abduh-Salam and Rena Abduh-Salam appeal from convictions of multiple crimes arising from three incidents of road-rage. Raphael contends (1) insufficient evidence supports his conviction of assault with a firearm; and (2) the trial court should reconsider a firearm enhancement imposed on him. Rena contends (1) insufficient evidence supports her conviction of making criminal threats; (2) the California causation standard applied to criminal threats is unconstitutional; and (3) the trial court erred by not instructing on the lesser included offense of attempted criminal threats.

Except to remand on the firearm enhancement, we affirm the judgment.

Facts and Proceedings

Jeanette S. Incident

On May 7, 2013, Jeanette S. was driving her van in the right lane on Florin Road near Franklin Boulevard. A gray Dodge Magnum came up from behind her left side and tried to pull in front of her, but there was not enough space. The Magnum’s driver, Raphael, dropped back, changed to the far left lane, passed a truck in the middle lane, and pulled in front of Jeanette’s van in the right lane.

Jeanette did not want to be behind him, so she changed lanes to the middle lane. Raphael moved to the middle lane in front of her. She moved to the far left lane, and Raphael moved in front of her. Not knowing what Raphael was doing, Jeanette moved to the middle lane, and then back to the right lane. Raphael copied Jeanette’s lane changes. He pulled in front of her in the right lane and stopped. He stopped short of an intersection, and there were no cars immediately in front of him.

Raphael exited the Magnum and approached Jeanette’s van. Jeanette opened her door, stood behind it, and asked Raphael, “What’s going on?” Raphael told Jeanette to call the cops. Confused by the confrontation, Jeanette reached for her cell phone (a flip-phone) and began dialing 911. Raphael grabbed the phone, snapped the top portion off, and threw the phone at Jeanette, hitting her across the nose.

Jeanette was scared and sat down in the driver’s seat. Her foot was still outside the door frame. Raphael slammed the door on her ankle repeatedly. He opened the door and punched Jeanette in the face, head, and neck several times. Using the door and the van’s roof as leverage, he pulled himself off the ground and kicked Jeanette with both of his feet “like a temper tantrum baby kicking their feet.” He kicked her in her head, neck, shoulder, chest, and stomach. Jeanette fell over in between the two seats, and Raphael kicked her in the back.

While Raphael kicked Jeanette, Rena exited the Magnum’s passenger side. She ran to the back of the car and yelled, “Kill the bitch. Kill the bitch.” She returned to the Magnum and, as shown on video from the intersection camera, she backed the car into Jeanette’s van. Then she pulled forward to the intersection.

Raphael stopped his assault and walked towards the sidewalk. Jeanette was scared he might return with a weapon. She wanted to get away. She put her van in drive, slammed her foot on the gas, and hit the back of Raphael’s car.

The intersection video showed the Magnum remained in front of the van, accelerated, and turned into a nearby parking lot. Jeanette’s van followed the Magnum into the parking lot. Raphael followed the vehicles into the parking lot on foot. When Jeanette entered the parking lot, her van struck an island divider and her airbags deployed. The Magnum swerved and parked on the side near Jeanette’s van.

Defendants ran to the van. They started beating on the windows and pulling on the doors. Rena stood outside the driver’s side window about six to eight inches from Jeanette’s face and said, “Open the door, damn bitch. I’m going to kill you.” The threat frightened Jeanette; Rena looked angry and Jeanette believed Rena would harm her. Raphael tried to open the driver’s door, and then he tried to open the van’s other doors. Rena beat so hard on the driver’s door window that it was moving. She hit the driver’s side rear window and broke it.

Rena and Raphael returned to their vehicle. Jeanette remained in her vehicle and defendants stayed in the Magnum until police arrived a few minutes later. Jeanette said she stayed in her car “because I didn’t know what they were going to do to me.” Raphael tried to walk away from the scene, but police stopped him.

A highway patrol officer interviewed Jeanette and defendants. Jeanette was visibly upset, crying, and bleeding from her nose. She did not appear to be under the influence of drugs or alcohol. She suffered numerous bruises and minor cuts on her arms, thighs, feet, and back. As of trial, she still felt lower back pain because of the assault.

Raphael admitted kicking Jeanette. He kicked her because he was upset her car had accelerated toward the rear of his car and because he had been involved in a vehicle collision a few weeks earlier.

Lawrence O. Incident

On June 7, 2013, Lawrence O. was driving his truck with his wife and five-year-old granddaughter in the right lane on Franklin Boulevard south of Florin Road. A Dodge Magnum was behind Lawrence’s truck. Rena was driving it. She had been driving recklessly and cutting off other cars. She entered the bike lane and tried to pass Lawrence on the right. He moved his truck to the right to prevent her from passing. She changed lanes and pulled alongside Lawrence’s truck. Someone from her car threw an object at the truck.

Lawrence followed Rena into a parking lot and back onto the street to obtain her license plate number. He stopped when Rena ran a red light. Rena pulled to the side of the road, got out of the car, and walked into the intersection. She walked through traffic, waiving her arms and ranting. Lawrence exited his truck and grabbed a 4x4 wooden post from the truck’s bed. He and Rena exchanged words, him standing by his truck and she still in the middle of the intersection. After a few seconds, Lawrence put the wood post back in the truck’s bed and got back in the truck. Rena, still yelling, walked across the road towards the truck. She grabbed the wood post from the bed and smashed the driver’s side window. Glass sprayed over Lawrence and his wife, cutting them in several places.

Lawrence exited the vehicle, screamed at Rena, obtained a metal stake from the back of his truck, and waved it in the air. At that point, the Magnum was driven toward him. As it came alongside the truck, Lawrence hit its front end with the metal stake. Rena got inside the car, and it sped away. She later returned to the scene and admitted smashing Lawrence’s window to police.

Karin E. Incident

On July 25, 2014, Terry E. was driving his daughter, Karin, to work on West El Camino Avenue in Natomas. Raphael was erratically driving a BMW behind them. He was driving fast and swerving in and out of the center “suicide” lane. He passed Terry, cut in front of him, and went into the bike lane. Terry stopped to avoid hitting him.

The two cars stopped at an intersection. The driver’s side window of Raphael’s BMW was parallel to the passenger seat in Terry’s car, where Karin was sitting. Raphael and Karin were about three feet apart. Raphael reached across his body and pulled a handgun up from the side of his door. He pointed the gun at Karin and said, “pop, pop, pop.” Terry also saw Raphael point the gun at Karin and recalled Raphael saying, “bang, bang.” Raphael moved his hands back and forth while holding the gun. He smiled both before and after pulling the gun. Karin was “very shocked and scared.”

Raphael sped ahead of Terry and Karin, pulled to the side of the road, and got out of his car. The gun was tucked inside the front of his pants. Karin saw its handle. Raphael waved at Terry and Karin, daring them to confront him. Terry and Karin took a picture of the BMW and its license plate number, called 911, and kept driving.

The BMW’s registration listed Rena as the car’s owner and her address as 4085 Weymouth Lane in Sacramento. After Karin identified Raphael in a photo lineup, police went to the residence. They found the BMW parked near the house and searched it. They discovered a Glock .9 millimeter semi-automatic firearm in the glove box. The gun was loaded; it had several bullets in the magazine and one in the chamber. The gun was not registered to Raphael. Police arrested Raphael when he came outside.

Judgment and Sentencing

A jury found Raphael guilty of assaulting Jeanette S. by means likely to produce great bodily injury, and, in Terry and Karin’s incident, assaulting Karin with a firearm, brandishing a firearm, carrying a concealed weapon, and unlawful possession of a firearm. (Pen. Code, §§ 245, subds. (a)(2), (4); 417.3; 25400, subd. (a)(1); 29820; statutory section references that follow are found in the Penal Code, unless otherwise set forth.) It also found true an allegation that Raphael personally used a firearm to assault Karin. (§ 12022.5, subd. (a).) The court found true an allegation that Raphael was released on bail at the time of Terry and Karin’s incident. (§ 2022.1.)

The court sentenced Raphael to state prison for 10 years eight months, calculated as follows: The mid term of three years for the assault with a firearm on Karin plus four years for the firearm enhancement and two years for the on-bail enhancement, one year (one-third the mid term) for the assault on Jeanette, and eight months (one-third the mid term) for the carrying count, with all terms to be served consecutively. The court stayed sentences of two years each for the brandishing and possession counts.

The jury found Rena guilty of making criminal threats against Jeanette, assaulting Lawrence with a deadly weapon, and misdemeanor vandalism against Lawrence’s truck. (§§ 422; 245, subd. (a)(1); 594, subd. (a).)

The court sentenced Rena to three years eight months in state prison: The mid term of three years for the assault plus eight months (one-third the mid term) for the criminal threats count. The court stayed a six-month term for the vandalism count.

Discussion

I

Assault on Karin with a Firearm

Raphael contends insufficient evidence supports his conviction of assaulting Karin with a firearm. He asserts there was insufficient evidence from which the jury could infer the gun he aimed at Karin was loaded. He claims that without that fact, the jury could not find his aiming the gun would probably result in the application of force and that he had the present ability to apply force. We disagree. The jury could reasonably infer from the evidence the gun was loaded when he pointed it at Karin.

“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ (People v. Lindberg (2008) 45 Cal.4th 1, 27.)” (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)

When proving an assault with a firearm, the prosecution must show the defendant had the present ability to apply force with the firearm. “ ‘[S]ection 245, subdivision (a)(2), punishes “[a]ny person who commits an assault upon the person of another with a firearm.” Assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240, italics added.) “Once a defendant has attained the means and location to strike immediately he has the ‘present ability to injure.’ ” ’ (People v. Licas (2007) 41 Cal.4th 362, 366-367.)” (People v. Covarrubias, supra, 1 Cal.5th at p. 890.)

Sitting parallel to Karin three feet away and aiming a gun at her, defendant had attained the location to shoot her immediately. The jury, however, also had to decide whether he had the means; specifically, whether his gun was loaded when he aimed it at Karin. The jury found the gun was loaded, and substantial evidence supports the finding.

California courts have traditionally held an assault “is not committed by a person’s merely pointing an (unloaded) gun in a threatening manner at another person.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3.) Pointing an unloaded or inoperable gun at another person without any effort or threat to use it as a bludgeon does not constitute an assault with a deadly weapon. (People v. Sheldon (1989) 48 Cal.3d 935, 961-962; People v. Orr (1974) 43 Cal.App.3d 666, 672.)

However, “[t]o point a loaded gun in a threatening manner at another . . . constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury.” (People v. Miceli (2002) 104 Cal.App.4th 256, 269.)

The question whether or not the firearm was loaded was a question of fact to be determined by the jury. (See People v. Rodriguez, supra, 20 Cal.4th at p. 12.) “[A] defendant’s statements and behavior while making an armed threat against a victim may warrant a jury’s finding the weapon was loaded.” (Ibid.)

Sufficient evidence existed from which the jury could infer Rafael’s gun was loaded when he pointed it at Karin. Sitting three feet away from Karin in an adjacent stopped car, Rafael displayed his gun. He pointed it at her and said, “pop, pop, pop.” He moved his hands back and forth, and he smiled before and after he pointed the gun at her. When police searched his car approximately eight hours later, they found a loaded handgun in the glove box. The gun had one bullet in the chamber and several in the magazine. It was similar to the one Karin saw Raphael point at her. A juror could reasonably infer from this evidence that Rafael aimed a loaded gun at Karin.

Rafael asserts the evidence is insufficient. He claims it was improper speculation to assume the loaded gun police found in his car was loaded over eight hours earlier when he pointed it at Karin. The inference was not improper speculation. “ ‘An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.’ Thus, an inference is not evidence but rather the result of reasoning from evidence. ‘ “An inference of fact must be based upon substantial evidence, not conjecture . . . . ‘It must be such that a rational, well-constructed mind can reasonably draw from it the conclusion that the fact exists[.]’ ” ’ ” (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1149, fns. omitted.)

A jury is not permitted to draw an inference only “when the supporting evidence is so strong the inference must be found as a matter of law. . . . Even ‘slight evidence’ in support of the fact to be inferred has been held to be sufficient. It is up to the jury to assess the credibility and judge the weight of the evidence proffered in support of and in opposition to the fact it is asked to infer.” (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles, supra, 117 Cal.App.4th at p. 1150, fn. omitted.) If the evidence “could, but not necessarily would, lead a reasonable trier of fact to infer” the ultimate fact being established, it is sufficient for purposes of appeal. (Ibid.)

From the evidence discussed above, the jury could reasonably infer Rafael aimed a loaded gun at Karin. A separation of eight hours from when Rafael aimed the gun at Karin from the BMW to when police found it loaded in the BMW is not so long as to render the jury’s finding speculation. This is particularly so in light of his saying “pop, pop, pop” to Karin while he aimed the gun at her, and his dares to confront them. The jury could infer he was not afraid to make the threat or dare retaliation because the gun was loaded as the police found it.

Defendant points out that Karin said he was smiling when he aimed the gun at her. But the jury could reasonably infer his grin was a way to taunt or goad Terry and Karin in light of his threat and show of force. “ ‘We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence.’ ” (People v. Covarrubias, supra, 1 Cal.5th at p. 890.) We are convinced Rafael did not smile at Karin as a friendly gesture.

Sufficient evidence supports Rafael’s conviction of assault with a firearm.

II

Criminal Threat Against Jeanette

Rena contends her conviction of making criminal threats against Jeanette cannot stand. She asserts the prosecution had to establish her threat was the “but-for” cause of Jeanette’s fear, and the evidence did not meet that standard. She also claims the evidence does not support her conviction even if the prosecution had to establish her threat was a “substantial factor” causing Jeanette’s fear, a less burdensome standard.

We disagree with both of Rena’s arguments. California law required the prosecution to prove only that the threat was a substantial cause of Jeanette’s fear, and sufficient evidence supports that finding.

A. Substantial Factor Standard of Causation

To establish a criminal threat, the prosecution must prove the defendant’s threat “causes that person reasonably to be in sustained fear for his or her own safety . . . .” (§ 422.) Rena acknowledges California courts apply the “substantial factor” causation standard to determine if evidence shows the threat caused a person to be in sustained fear. However, she argues the plain meaning of the term “cause” in section 422 is to require that the threat be a “but-for” cause of the victim’s fear, not merely a substantial factor. She asserts Burrage v. United States (2014) 571 U.S. 204 [184 L.Ed.2d 715] (Burrage) requires us to interpret section 422 as imposing a but-for causation requirement as a matter of statutory construction and in accordance with the rule of lenity. She also claims interpreting section 422 to require the threat be only a substantial factor in causing sustained fear renders the statute unconstitutionally vague.

Burrage does not apply here. In Burrage, the Supreme Court interpreted a provision of the federal Controlled Substances Act which imposed a 20-year mandatory minimum sentence on a defendant who distributed a schedule I or II drug when death or great bodily injury “results from the use” of the drug. (Burrage, supra, 571 U.S. at p. 206.) The defendant sold the victim heroin, but the victim died from an overdose of multiple drugs; the heroin was simply a contributing factor in the death. (Id. at p. 207.) The question before the Supreme Court was whether the “results from” standard in the statute could be satisfied when the heroin was a concurrent cause, but not a but-for cause, of the death. The court concluded it could not. (Id. at pp. 209-214.)

Burrage was concerned with the interpretation of specific language Congress had used in a federal statute. The court was not imposing a definition of causation as a matter of constitutional mandate. Indeed, in the course of its analysis, the Supreme Court recognized a minority of jurisdictions have adopted the principle that an act “is considered a cause-in-fact if it was a ‘substantial’ or ‘contributing’ factor in producing a given result.” (Burrage, supra, 571 U.S. at p. 215.) The court recognized California was one such jurisdiction, citing People v. Jennings (2010) 50 Cal.4th 616, 643. (Burrage, at p. 215.) Burrage did not overrule California law by adopting a constitutionally mandated definition of causation applicable for all criminal statutes. The Supreme Court concluded only that Congress, in enacting the mandatory minimum sentencing provision of the Controlled Substances Act, had intended the narrower, but-for definition. (Id. at p. 216.) Burrage has no bearing on whether the crime of making a criminal threat under California law can be satisfied when the threat is a substantial cause of the victim’s sustained fear.

Rena contends the rule of lenity obligates us to interpret section 422 to require but-for causation. “[A]s a sort of ‘junior version of the vagueness doctrine,’ H. Packer, The Limits of the Criminal Sanction 95 (1968), the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning [to a defendant] by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” (United States v. Lanier (1997) 520 U.S. 259, 266 [137 L.Ed.2d 432].) Burrage based its ruling in part on the rule of lenity (571 U.S. at p. 216), but the rule does not affect our construction of section 422. The statute, as construed under the California standard of causation, makes it clear that when Rena yelled her threats under the circumstances at the time her conduct was clearly covered by the statute and was criminal. Due process required no more warning to Rena than that. (United States v. Lanier, supra, 520 U.S. at p. 267.)

Rena asserts interpreting section 422 to require the threat be only a substantial factor in causing the victim’s fear renders the statute unconstitutionally vague. We disagree. “[T]he vagueness doctrine bars enforcement of ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ [Citations.]” (United States v. Lanier, supra, 520 U.S. at p. 266.) “Penal Code section 422, prohibiting criminal threats, is sufficiently certain and definite in context to provide actual notice to individuals of the prohibited conduct and minimal guidelines for law enforcement to prevent arbitrary and discriminatory application of the statute.” (People v. Maciel (2003) 113 Cal.App.4th 679, 686.) The substantial factor causation standard also is not impermissibly vague. The principles of the substantial factor standard “are sufficiently clear to withstand any claim of vagueness.” (In re M.S. (1995) 10 Cal.4th 698, 720 [phrase “because of” in hate crime statute reflected substantial factor standard].)

B. Sufficiency of the Evidence

Turning to the state of the evidence, Rena argues insufficient evidence supports a finding her threat was a substantial factor in causing Jeanette’s sustained fear.

The sustained fear element of the offense “is satisfied where there is evidence that the victim’s fear is more than fleeting, momentary or transitory.” (People v. Culbert (2013) 218 Cal.App.4th 184, 190.) Depending on the circumstances, even one minute can be a sufficient time. “When one believes he is about to die, a minute is longer than ‘momentary, fleeting, or transitory.’ [Citation.]” (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) “The victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Indeed, “all of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422. This includes the defendant’s mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.)

The evidence shows Rena’s threat was a significant factor in causing Jeanette to be in sustained fear. After Jeanette’s van collided with the parking lot island, both defendants ran toward it. They beat on the windows and pulled on the doors. Nearly face to face with Jeanette, Rena threatened, “Open the door, damn bitch. I’m going to kill you.” She hit the driver’s door window so hard, the window was moving. Raphael was trying to get inside the van through any of its doors. Then Rena broke the van’s rear window. Jeanette was frightened and thought Rena would harm her.

Jeanette’s belief was reasonable, as moments earlier, Rena had encouraged Raphael to kill Jeanette as he pummeled her. “Kill the bitch. Kill the bitch,” she encouraged. Then Rena, as if to harm Jeanette further, backed the Magnum into the front of the van.

Jeanette’s fear was sustained after Rena threatened to kill her. After Rena broke the van’s window and she and Raphael got in their car, Jeanette stayed in her car still in fear. She testified she stayed in her car “because I didn’t know what they were going to do to me.” She stayed in this position until police arrived a few minutes later. This evidence is sufficient to establish Rena’s threat caused Jeanette reasonably to be in sustained fear for her own safety.

III

Instructing on Lesser Included Offense

Rena contends the trial court erred by not instructing on the lesser included offense of attempted criminal threats. She argues the court was required to instruct on the offense because there was substantial evidence Jeanette did not experience sustained fear and thus the jury could have found her not guilty of making a criminal threat.

Assuming, for the sake of argument only, the trial court erred in not giving the instruction, we find the error was harmless. We review the failure to instruct on a lesser included offense under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. Whether it is reasonably probable Rena would have obtained a more favorable result had the court instructed on attempted criminal threats. (People v. Breverman (1998) 19 Cal.4th 142, 149.)

It is not reasonably probable Rena would have received a different result had the court instructed on attempted criminal threats. The evidence was overwhelming that her threat caused Jeanette to be in sustained fear for her safety; in other words, fear that was more than fleeting, momentary or transitory. As just discussed, after Rena threatened Jeanette, she and Raphael beat on the van’s windows and tried to open the doors until Rena ultimately broke the van’s window. Then Jeanette remained too fearful to leave her car because she did not know what else defendants would do to her. An instruction on attempted criminal threats would not reasonably have changed the jurors’ minds on this evidence.

Rena asserts the evidence was not so strong. She contends the jury could have found her guilty of attempted criminal threats because there was substantial evidence Jeanette was not in sustained fear due to the threat. Jeanette did not tell the responding officer of Rena’s threats or actions, and the officer arrived only about five minutes after the altercation began and about two-and-a-half minutes after the two cars entered the parking lot. But the jury knew these facts and still found the threat caused sustained fear. The court instructed the jury to acquit Rena if it could not find the threat caused sustained fear, and the jury did not acquit. If the jury had been instructed to find Rena guilty of attempted criminal threats on the same evidence because the threat did not create sustained fear, the jury would have reached the same verdict.

Rena also argues it was a close case. The jury deliberated for almost four days, during which it asked several questions, viewed the video from the intersection camera, and heard readback of the responding officers’ and witnesses’ testimony. Although the jury found Rena guilty of criminal threats, it acquitted her on two other charges arising from the incident; assault with a deadly weapon and vandalism.

Neither of these points establishes prejudicial error. The length of the trial does not show this was a close case. The jury heard 18 witnesses testify, received over 50 exhibits, and had to decide 11 counts arising from three separate incidents, two of which involved both defendants. Moreover, Rena’s acquittal of assault concerned an act that occurred before she threatened Jeanette, and both acquittals involved determinations distinct from the criminal threats charge. And despite the acquittals, the intersection video shows Rena backed the car into Jeanette’s van before she pulled up to the intersection, and Rena introduced no evidence disputing she was the person who broke the van’s window. To conclude from these facts the case was close is speculation.

The record shows it was not reasonably probable Rena would have obtained a different verdict had the court instructed on attempted criminal threats. Any error in not instructing was harmless.

IV

Senate Bill No. 620

After briefing in this case was finished, the Legislature passed and the Governor signed into law Senate Bill No. 620, which amended section 12022.5, subdivision (c) to give trial courts discretion to strike certain firearm enhancements in the interest of justice. (Stats. 2017, ch. 682, § 1.) Raphael filed a supplemental brief, asserting Senate Bill No. 620 applies retroactively to cases not yet final and, therefore, we should remand for the trial court to determine in its discretion whether to strike the firearm enhancement the court imposed on him. The Attorney General agrees with Raphael on this point, and so do we.

Effective January 1, 2018, Senate Bill No. 620 authorizes a court to exercise its discretion under section 1385 to strike or dismiss a firearm enhancement allegation or finding made pursuant to sections 12022.5 and 12022.53. (§§ 12022.5, subd. (c), 12022.53, subd. (h).) However, the legislation does not expressly declare whether it applies to cases not yet final as of January 1, 2018, in which firearm enhancements were imposed.

Generally, amendments to the Penal Code apply prospectively. But California law recognizes an exception for amendments that reduce the punishment for a specific crime. Courts presume the Legislature intends those amendments to apply retroactively to all nonfinal judgments absent a saving clause or other clear evidence the Legislature intended otherwise. (In re Estrada (1965) 63 Cal.2d 740.) The presumption applies to amendments that give the superior court discretion to impose a lower sentence. (See People v. Francis (1969) 71 Cal.2d 66, 75-76.) We agree with the parties that, pursuant to this presumption, Senate Bill No. 620 applies retroactively to Raphael’s case, which is not yet final.

“Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Here, the trial court had no discretion at sentencing regarding the four-year consecutive term for the section 12022.5, subdivision (a) enhancement. Thus, we will remand to permit the trial court to consider exercising the discretion conveyed by Senate Bill No. 620.

Disposition

The matter is remanded solely for the trial court to reconsider the firearm enhancement imposed on Raphael under section 12022.5, subdivision (a), as authorized under section 12022.5, subdivision (c). (Stats. 2017, ch. 682, § 1.) In all other respects, the judgment is affirmed.

HULL , Acting P. J.

We concur:

MAURO , J.

MURRAY , J.