Filed 5/1/18 P. v. Collins CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,

Plaintiff and Respondent,

v.

DENISHO DEMMETRIUS COLLINS,

Defendant and Appellant.
C083771

(Super. Ct. No. 06F07216)




Appointed counsel for defendant Denisho Demmetrius Collins filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant later filed a supplemental brief arguing that the trial court constitutionally erred by reducing his first degree murder conviction to second degree murder.
After briefing was complete, defendant’s counsel filed a supplemental opening brief arguing that we must remand the matter so that the trial court may exercise its discretion on whether to strike defendant’s firearm enhancement under legislation that became effective January 1, 2018. We conclude the trial court properly reduced defendant’s conviction to second degree murder. We agree, however, that remand is necessary to allow the trial court to exercise its discretion as to whether to strike the firearm enhancement under the recent amendment to Penal Code section 12022.53. We therefore affirm defendant’s second degree murder conviction, but remand the matter for the trial court to consider whether to strike the firearm enhancement.
FACTS AND PROCEEDINGS
A jury found defendant guilty of first degree murder (Pen. Code, § 187) after hearing evidence that the victim was shot to death after he, defendant, and others set out to avenge the killing of a fellow gang member. He was also found guilty of unlawful possession of an assault weapon and possession of a firearm by a felon. The jury found true allegations that defendant personally discharged a firearm in the commission of the offense (§ 12022.53, subd. (c)), and that he committed the offense in association with a criminal street gang to promote criminal conduct by the gang (§ 186.22, subd. (b)(1)).
Defendant was sentenced to 25 years to life for his first degree murder conviction plus a consecutive 20-year term for the firearm enhancement and a 10-year consecutive sentence for the gang enhancement. Defendant appealed, and in an unpublished decision, this court held that the 10-year gang enhancement was improper and should be replaced with a 15-year minimum parole period and that defendant was entitled to 1,076 days of custody credit. (See People v. Collins (May 9, 2011, C062398) [nonpub. opn.].) Defendant was thus left with a sentence of 25 years to life, plus 20 years on the firearm enhancement under section 12022.53, subdivision (c), and three additional years on the determinate counts.
Defendant later filed a petition for writ of habeas corpus in Sacramento County Superior Court on various bases, and in June 2016, the trial court issued an order to show cause on defendant’s claim under People v. Chiu (2014) 59 Cal.4th 155 (Chiu) and denied defendant’s other claims. The People conceded error under Chiu and requested that defendant’s first degree murder conviction be reduced to second degree murder. The court reduced the conviction to second degree murder and set the matter for resentencing.
In November 2016 a resentencing hearing was held before the same judge that originally presided over defendant’s trial and later sentenced him on his convictions. Defendant’s counsel made no arguments, and the court sentenced defendant on the murder charge to 15 years to life, plus 20 years under section 12022.53, subdivision (c), plus a minimum parole period of 15 years, and sentenced defendant on the remaining counts as before.
Defendant filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to Wende, supra, 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief contending the trial court violated his right to a jury trial and due process when the trial court reduced his conviction to second degree murder and sentenced him for that offense because he was originally charged with first degree murder and second degree murder was not pled as a lesser included offense. He therefore argues that his second degree murder conviction should be reversed and the matter should be remanded to allow the People to retry him on the greater offense or on any lesser included offenses, including second degree murder. We disagree.
It is well settled that a defendant may be convicted of an uncharged crime if it is a lesser included offense of a charged crime. (§ 1159 [“The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense”]; People v. Reed (2006) 38 Cal.4th 1224, 1227.) A “lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense such that the greater offense cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.) The rule limiting convictions of uncharged crimes to lesser included offenses of charged crimes satisfies the due process requirement that an accused be given adequate notice of the charges so as to have a reasonable opportunity to prepare and present a defense. (Reed, supra, 38 Cal.4th at p. 1227.) The “ ‘specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense’ ” (Id. at p. 1229), even though the lesser offense has not been separately charged.
Because second degree murder is a lesser included offense of first degree murder (Chiu, supra, 59 Cal.4th at p. 166 [“First degree murder, like second degree murder, is the unlawful killing of a human being with malice aforethought, but has the additional elements of willfulness, premeditation, and deliberation, which trigger a heightened penalty”]; People v. Seaton (2001) 26 Cal.4th 598, 672; People v. Anderson (2006) 141 Cal.App.4th 430, 443 [“It is well established that the crime[] of second degree murder . . . [is] [a] lesser included offense[] of first degree murder”]), the court did not err in reducing defendant’s conviction to second degree murder and sentencing defendant for that offense even though second degree murder was an uncharged lesser included offense.
Following the completion of briefing, defense counsel requested permission to file a supplemental opening brief based on a recent change to Penal Code section 12022.53, which went into effect on January 1, 2018. (Stats. 2017, ch. 682, § 2.) Based on the amended law, he argues that defendant’s case must be remanded so that the trial court can decide whether to exercise its newly-granted discretion to strike the firearm enhancement imposed here. The People concede that such a remand is required, and we agree.
As we have noted, defendant’s sentence in this case includes a sentence enhancement of 20 years under subdivision (c) of Penal Code section 12022.53 for personally and intentionally discharging a firearm during the murder. At the time of his sentencing, the trial court had no power to strike the firearm enhancement or impose a sentence other than 20 years. Under a recent amendment to Penal Code section 12022.53, however, which became effective January 1, 2018, trial courts will have the power under subdivision (h) of the statute, “in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] 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).)
Defendant contends this amendment applies to his case because the Legislature expressly provided for the retroactive application of the amendment by specifying the new rule applies to “ ‘any resentencing that may occur.’ ” He further contends, based on In re Estrada (1965) 63 Cal.2d 740, and related cases, that the amendment applies here because absent evidence to the contrary we must assume that when legislation reduces punishment for a particular offense, the Legislature intended the legislation to apply to all defendants whose judgments are not yet final on the statute’s operative date. He also argues that constitutional equal protection principles mandate retroactive application of the new law.
The People agree that 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 presumption that the amendment applies retroactively prevails. The People do not argue that remand in this instance would be futile (see People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896), but instead agree that here the case must be remanded to allow the trial court to exercise its newly-granted discretion to decide whether to strike the firearm enhancement.
We agree with defendant and the People that remand is appropriate. Under In re Estrada, “when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature.” (People v. Francis (1969) 71 Cal.2d 66, 75-76.) As the Supreme Court stated in In re Estrada, “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (In re Estrada, supra, 63 Cal.2d at p. 745.)
Here, the amendment to subdivision (h) of Penal Code section 12022.53, which went into effect before the judgment in this case is final, necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice. Because there is nothing in the amendment suggesting a legislative intent that the amendment apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply, which includes this case. Accordingly, remand is appropriate here to allow the trial court to exercise its discretion as to whether to strike the firearm enhancement.
Finally, we note that at the sentencing hearing the trial court orally imposed a court security fee in the amount of $20 per conviction (for a total of $60). Only the indeterminate abstract of judgment for defendant’s murder conviction, however, reflects the $20 fee. The determinate abstract of judgment for defendant’s two other convictions do not reflect the $20 court security fee for each conviction. We shall order the trial court to correct this omission.
DISPOSITION
Defendant’s second degree murder conviction is affirmed, but the case is remanded for further proceedings consistent with this opinion. The trial court is also directed to prepare an amended determinate abstract of judgment reflecting the imposition of the court security fee and to forward a certified copy to the Department of Corrections and Rehabilitation.



RAYE , P. J.



We concur:



MURRAY , J.



HOCH , J.