Filed 3/23/22 P. v. Delacruz CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Affirmed and remanded with directions.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

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In 2017, a jury convicted defendant and appellant Sergio Delacruz of (count 1) willful and deliberate attempted murder (Pen. Code,[1] §§ 187, subd. (a), 664) and (count 2) discharging a firearm from a motor vehicle (§ 26100, subd. (c)), and found true various firearm (§ 12022.53, subds. (b)–(e)) and gang (§ 186.22, subd. (b)) enhancements on both counts. Delacruz contends the trial court erred by imposing firearm enhancements on his conviction in count 2 because discharging a firearm from a motor vehicle is not an enumerated offense for enhancements under section 12022.53. In addition, he contends we must remand the case to allow the trial court to exercise its discretion under Senate Bill No. 620 (2017−2018 Reg. Sess.) (Stats. 2017, ch. 682) (Senate Bill No. 620) whether to strike the firearm enhancement on his conviction of attempted murder in count 1. We agree with both contentions, and therefore remand the case for a new sentencing hearing.

FACTS AND PROCEEDINGS BELOW

On September 14, 2014, Alexis Gonzalez was standing outdoors in a residential area of Pomona when a red minivan pulled up nearby. Delacruz was the driver of the minivan, and his codefendant Carlos Monge was in the passenger seat. Monge fired three shots at Gonzalez, striking him twice in the arm and once in the back. The van then sped away. Police officers followed the van, forced it to stop, and apprehended Delacruz and Monge after a foot pursuit.

Gonzalez was hospitalized for several days but ultimately recovered from his injuries. Delacruz and Monge were both members of the West Side Pomona gang, and Gonzalez was a member of the rival Happy Town gang.

After Delacruz was convicted in 2016, the trial court imposed an aggregate sentence of 32 years to life, consisting of seven years to life for attempted murder, plus an enhancement of 25 years to life because a principal intentionally discharged a firearm and proximately caused great bodily injury. (§ 12022.53, subds. (d) & (e).) The court stayed sentence on the remaining charges and enhancements under section 654. These consisted of lesser firearm enhancements under section 12022.53, subdivisions (b) and (c) on count 1, as well as the base sentence and firearm enhancement on count 2. The court also struck the gang enhancements under section 186.22, subdivision (b) on both counts because these enhancements cannot be imposed in addition to a firearm enhancement in a case where the defendant did not personally use a firearm. (See § 12022.53, subd. (e)(2).)

Delacruz’s attorney failed to file a notice of appeal by the deadline to do so. In 2020, Delacruz filed a petition for a writ of habeas corpus alleging that his attorney rendered ineffective assistance of counsel by failing to appeal from the judgment. The trial court granted the petition. On January 25, 2021, Delacruz filed a notice of appeal, which this court deemed a timely notice of appeal from the original judgment.

DISCUSSION

A. The Firearm Enhancements on Count 2 Must be Stricken

Delacruz contends the trial court erred by imposing enhancements under section 12022.53, subdivisions (b), (c), and (d) on his conviction in count 2 of discharging a firearm from a motor vehicle. The Attorney General agrees, as do we.

Enhancements under section 12022.53 apply only to certain enumerated felonies. (See People v. Vallejo (2013) 214 Cal.App.4th 1033, 1044.) Discharging a firearm from a motor vehicle is not one of the felonies enumerated in section 12022.53, subdivision (a). The statute allows for the application of an enhancement under section 12022.53, subdivision (d) to a conviction of discharging a firearm from a motor vehicle, but only if the defendant “personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury . . . or death.” (Ibid., italics added.) In this case, as all parties agree, the shooter was Monge, not Delacruz. We must therefore order the trial court to strike the firearm enhancements on count 2.[2]

B. The Court Must Exercise Its Discretion Whether to Strike the Enhancements on Count 1

In 2017, after Delacruz’s trial, the Legislature enacted Senate Bill No. 620, which amended section 12022.53 to provide that “[t]he court may, in the interest of justice pursuant to [s]ection 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.” (Stats. 2017, ch. 682, § 2, amending § 12022.53, subd. (h).) Previously, the law provided that “the court shall not strike an allegation under” section 12022.53. (Former § 12022.53, subd. (h).) The change in the law applies retroactively to defendants like Delacruz whose convictions were not final at the time the law became effective. (People v. Johnson (2019) 32 Cal.App.5th 26, 67−68.) Delacruz contends that we must therefore remand the case to the trial court to consider striking the enhancement on his attempted murder conviction.

The Attorney General concedes the law applies retroactively but contends remand is not necessary in this case because “the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement.” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The Attorney General states that the trial court “indicated that even if it had the power to strike the section 12022.53 enhancement pursuant to section 1385, it did not ‘see any grounds’ to do so ‘under the circumstances of this particular case,’ ” and this shows that remand would be futile.

We are not persuaded. At the sentencing hearing, the trial court noted that it had “very little discretion in this matter because the court is required to sentence at the highest possible sentence . . . on any given count.” The court described the 25-year firearm enhancement as “automatic,” then went on to make the statement the Attorney General quoted in its brief: “I don’t see any grounds if I have the power to strike [the enhancement] under the circumstances of this particular case.” (Italics added.) The Attorney General’s brief omitted the italicized portion from its quotation and, in doing so, made the trial court’s statement appear to imply that the court would not have shortened Delacruz’s sentence if it had the discretion to do so. In context, the statement is ambiguous. It could also mean that the court recognized that, at the time, it lacked the power to strike a firearm enhancement regardless of the merits of a particular case.

Furthermore, in its statements at the sentencing hearing, the court might not have considered the possibility of reducing Delacruz’s sentence by striking some, but not all, of the enhancements. The court had no such power at the time of sentencing, but following the passage of Senate Bill No. 620 it does. (People v. Wang (2020) 46 Cal.App.5th 1055, 1090‑1091.) By striking the enhancement under section 12022.53, subdivision (d) while leaving the lesser enhancement under subdivision (c) in place, the court could reduce Delacruz’s minimum sentence by five years. By striking the enhancement under subdivision (c) as well, but leaving the enhancement under subdivision (b) in place, the court could reduce the sentence by 10 more years. The trial court may decide one of these outcomes is appropriate even if it previously determined that there were no grounds for striking the 25‑year‑to‑life enhancement in full.

Thus, on the record before us, we cannot say that it would be futile to remand the case to allow the court to exercise that discretion. We must therefore remand the case for a new sentencing hearing.

DISPOSITION

The firearm enhancements on count 2 are stricken. This matter is remanded for a new sentencing hearing to allow the superior court to consider whether any or all of appellant’s firearm use enhancements on count 1 should be stricken. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

VOGEL, J.*

[1] Unless otherwise specified, subsequent statutory references are to the Penal Code.

[2] The trial court stayed sentence on count 2, including the firearm enhancements, and thus striking the enhancements will not alter the length of time Delacruz spends in prison.

*Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.