Filed 12/14/18 P. v. Cycyk CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Steven Fredrick Cycyk appeals from convictions arising out of an attempted robbery of the Best Western Heritage Inn in Concord. He seeks a remand for resentencing due to legislative changes giving trial courts discretion over certain sentence enhancements that were mandatory at the time he was sentenced.

The underlying facts are not relevant to the only issues presented on this appeal. Appellant was tried by a jury and found guilty of attempted robbery (Pen. Code, §§ 664, 211),[1] with personal use of a firearm (§ 12022.53, subd. (b)); second degree commercial burglary (§ 459), in which a principal was armed with a handgun (§ 12022, subd. (a)(1)); taking a motorcycle without consent (Veh. Code, § 10851); and possession of a firearm with a prior violent conviction (§ 29900, subd. (a)(1)). The court found that he had suffered a prior serious and/or violent felony conviction. (§§ 667, subds. (a)(1), (d), (e), 1170.12, subds. (b), (c).)

Appellant was sentenced to a total prison term of 19 years, consisting of the middle term of two years for the attempted robbery, doubled to four years due to the prior strike (§ 667, subd. (e)(1)), a consecutive 10 years for the section 12022.53, subdivision (b), firearm enhancement, a consecutive five years for the section 667, subdivision (a)(1), prior strike conviction, and a concurrent six years for the unlawful taking of a vehicle. Pursuant to section 654, the court stayed sentences on the burglary count, section 12022, subdivision (a)(1), enhancement, and count of unlawful possession of a firearm.

When appellant was sentenced on March 6, 2017, section 12022.53 prohibited trial courts from striking allegations or findings bringing a defendant within the provisions of the statute. (Former § 12022.53, subd. (h).) Effective January 1, 2018, section 12022.53 was amended to permit a trial court “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.” (§ 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) The parties agree that the amendment applies retroactively to cases not final when the amended law became effective, and we concur. (In re Estrada, (1965) 63 Cal.2d 740; People v. Francis (1969) 71 Cal.2d 66, 75.) Accordingly, a remand is required “ ‘unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.’ ” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082.)

Respondent argues that the record here shows the trial court would not have exercised discretion to strike or dismiss the section 12022.53 enhancement because the court denied defense counsel’s request at sentencing to impose the low term and strike the prior strike conviction for purposes of sentencing under the “Three Strikes” law. The court’s reasons for these decisions reflect considerations relevant to the particular sentencing choices, as is appropriate because “ ‘all discretionary authority is contextual’ ” and depends upon the legal principles and policies that should guide the particular action. (People v. Carmony (2004) 33 Cal.4th 367, 377.) The court imposed the middle term because it did not find “anything that would lead the court to do either a mitigated term or an aggravated term,” in keeping with the overall structure of determinate sentencing. It declined to strike the prior conviction for purposes of sentencing under the three strikes law because it found appellant to be a “career criminal” whose “escalating criminality is troubling,” a decision consistent with the court’s obligation to consider whether “ ‘in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit.’ ” (Id. at p. 377.)

These decisions do not provide guidance on what the court would have done if it had had discretion to strike the section 12022.53 enhancement—an enhancement carrying a prison term more than twice the doubled middle term imposed for appellant’s offense. (People v. McDaniels, supra, 22 Cal.App.5th at p. 427 [given “high stakes” of section firearm enhancements, appropriate for trial court to exercise discretion to strike “in the first instance”].) The court did not express an intention to impose the maximum sentence permitted. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand to exercise discretion whether to strike prior conviction would serve no purpose where trial court stated maximum sentence was appropriate, increased sentence beyond what three strikes law required and commented that defendant was “ ‘the kind of individual the law was intended to keep off the street as long as possible’ ”].) To the contrary, the court could have imposed a longer sentence than it did: It chose a middle term sentence, and imposed terms running concurrently rather than consecutively, and stated that it found a maximum sentence inappropriate “for some of [the] reason[s] brought up by [defense counsel].” These reasons were that appellant was a cooperating witness for the People in another case and showed remorse for his conduct in the present case. In these circumstances, we see no “clear indication of the trial court’s sentencing intent” with respect to the section 12022.53 enhancement. (McDaniels, at p. 427.) Remand is required.

In a supplemental opening brief filed on October 15, 2018, appellant argues that remand is also necessary due to a recently signed bill amending sections 667 and 1385 to eliminate a restriction prohibiting courts from striking a prior serious felony conviction for purposes of section 667, subdivision (a). When appellant was sentenced, the trial court was required to impose a five-year sentence enhancement for his prior serious felony conviction, with no discretion to strike the prior in this context. (§§ 667, subd. (a), 1385, subd. (b).) On September 30, 2018, Governor Brown signed Senate Bill No. 1393, which amends sections 667 and section 1385 to remove the prohibition against striking a prior serious felony conviction in connection with a section 667, subdivision (a), enhancement. (<https://www.gov.ca.gov/2018/09/30/governor-brown-issues-legislative-update-23> [as of Dec. 13, 2018].) The bill was filed with the Secretary of State on September 30, 2018 (2018 Cal. Legis. Service, ch. 1013 (Sen. Bill No. 1393)), and will become effective on January 1, 2019. (People v. Henderson (1980) 107 Cal.App.3d 475, 488; Cal. Const., art. IV, § 8, subd. (c)(1).)

Respondent argues that appellant’s claim is not ripe because Senate Bill No. 1393 will not become effective until January 1, 2019. Respondent does not question the fact that the new law will apply retroactively to all cases not final on the date it becomes effective. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-973; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308; In re Estrada, supra, 63 Cal.2d at pp. 742, 744; People v. Francis, supra, 71 Cal.2d at p. 75.) As respondent further recognizes, this case cannot become final before that date. “ ‘[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.’ ” (People v. Vieira (2005) 35 Cal.4th 264, 305-306, quoting People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.) Our own decision on the present appeal will not even be final until after January 1, 2019. (Cal. Rules of Court, rule 8.366(b).) Accordingly, appellant is entitled to the benefit of the Senate Bill No. 1393 amendments.

On the merits, respondent argues we should not remand because the record clearly shows the court would not have stricken the enhancement if it had had the discretion to do so. At sentencing, after noting that enhancements under sections 12022.53, subdivision (b), and 667, subdivision (a), were “mandatory,” and probation prohibited, the trial court stated: “Even though we have some mandatory terms, I still, if it wasn’t mandatory, would be looking at it as a state prison commitment based upon all of the factors, the escalating criminal conduct, the performance before on probation or parole, the prior record. He was an active participant. I think the gun and going into a hotel lobby with lots of people there. Danger to the community. [¶] So I still would have denied no matter what.” After some discussion of the overall length of potential sentences with or without doubling terms under the three strikes law, defense counsel erroneously told the court he had argued in his written motion that the court had discretion to dismiss the section 667, subdivision (a), enhancement; in fact, the written motion did not address this enhancement. Shortly thereafter, after noting other points raised in the papers, the court stated, “What I don’t see here is anything that would lead the court to do either a mitigated or an aggravated term. I do see the midterm. [¶] I realize it’s putting more years there than you’re arguing for, [defense counsel]. But one, I don’t think they’re strikable, and two, I wouldn’t. Not with the history.”

The court’s remarks are somewhat ambiguous with respect to whether they were directed at the section 667, subdivision (a), enhancement, the section 12022.53, subdivision (b), enhancement, or both. But assuming the court was referring to the section 667, subdivision (a), enhancement, this comment on a hypothetical discretion does not necessarily indicate what the trial court would do in an actual exercise of discretion. (People v. Billingsley, supra, 22 Cal.App.5th at p. 1081.) “ ‘ “Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.” ’ ” (Ibid., quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

In any event, as we are remanding this case for the court to exercise its discretion whether to strike the section 12022.53, subdivision (b), enhancement, it is appropriate for the trial court to exercise its discretion regarding the section 667, subdivision (a), enhancement as well.

DISPOSITION

The matter is remanded for resentencing pursuant to section 12022.53, subdivision (b), and pursuant to sections 667, subdivision (a), and 1385, subdivision (b), as amended by Senate Bill No. 1383, effective January 1, 2019. In all other respects, the judgment is affirmed.

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Kline, P.J.

We concur:

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Richman, J.

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Miller, J.

People v. Cycyk (A150858)