Filed 12/19/18 P. v. Douglas CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In these consolidated appeals following their convictions for murder, defendants Giovonte Douglas and Cartier Hunter contend they received ineffective assistance of counsel, the prosecutor committed misconduct during closing arguments, and we should order a limited remand to allow them to present evidence relevant to a future youth offender parole hearing. Douglas also challenges the admission of certain evidence and Hunter raises additional sentencing issues. In both appeals, we order a limited remand on sentencing issues and direct the trial court to correct errors in the abstract of judgment; in Hunter’s appeal, we also modify the judgment to strike an enhancement. We otherwise affirm.[1]

BACKGROUND

Prosecution Case

A.W.

A.W. testified she was walking near 46th and West Streets in North Oakland on December 22, 2011. A car came to a stop at the intersection and a dark-colored Lexus pulled up “towards the rear of” the first car. The passenger in the Lexus got out and fired approximately six to nine shots into the first car. The first car accelerated forward and sideways, crashed into a row of parked cars, and caught on fire. The shooter returned to the Lexus and they drove off. As the Lexus passed her, A.W. recognized the driver, Douglas, and the passenger, Hunter, both of whom she knew from the neighborhood. The parties stipulated that the victim was Charles Hiawatha Butler, Jr., and that Butler died from gunshot wounds to his head.

A.W. left when the police arrived because she did not want to answer any questions from the police. She did not talk to anyone about what she had seen. In September 2013, about twenty months after the shooting, A.W. saw Butler’s father on a television news program asking for help in solving his son’s murder. Shortly thereafter, A.W. called the police and identified appellants. The police officer who interviewed her testified that she expressed fear throughout his discussions with her and repeatedly said she was not going to testify.

Other Witnesses to the Events of December 22, 2011

C.P. lived in North Oakland and knew appellants from the neighborhood. Just before 10 a.m. on December 22, 2011, C.P. saw appellants drive by in a green Lexus near 45th and Market Streets. He had seen Douglas in the Lexus before, but he had not previously seen Douglas and Hunter together.

Mike Korin was the owner of the North Side Market, near the corner of 45th and Market Streets in North Oakland. The jury was shown video surveillance footage of the interior and exterior of the North Side Market between approximately 10:15 to 10:25 a.m. on December 22, 2011. The video showed two men, identified by Korin as Douglas and Hunter, entering the store; Douglas leaving the store; and Hunter arguing with Butler. Korin testified the argument was a minor one. An employee told Korin the argument was about an accident that happened outside the store.

J.S. lived in North Oakland near the intersection of 46th and Market Streets. On December 22, 2011, a little before 10:30 a.m., he heard gunshots, the revving of an engine, a car crash, and another car speeding. He looked out the window and saw a dark car that appeared to be a Lexus drive by. As the car slowed to go over a speed bump, J.S. clearly saw the driver’s face. In an April 2012 photographic lineup, J.S. identified Douglas as the driver of the Lexus. At trial, however, he identified Hunter as the driver.

T.O. was in his house in North Oakland on December 22, 2011, when he heard six to eight gunshots, a car engine revving, and a crash very close by. When he went outside, he saw that a car had crashed into a parked car and appeared to be on fire. He tried to put out the fire with a fire extinguisher but was unsuccessful. The driver was slumped over in the driver’s seat and looked like he had been shot a couple of times.

Events After the Shooting

D.C. used to live in North Oakland and knew appellants from the neighborhood. Prior to trial, D.C. told a police officer and, separately, a district attorney’s office inspector, that he overheard Hunter bragging about shooting Butler. At trial, D.C. testified he never heard Hunter say this and he could not remember previously saying he had.

C.P., the North Oakland resident who knew appellants from the neighborhood, testified that he and Douglas were “talking trash” a couple of weeks after the shooting. Douglas “raised his t-shirt up and said, ‘Don’t end up being a poster on a telephone pole,’ ” which C.P. took as a reference to posters in the neighborhood asking for help solving Butler’s murder. At trial, C.P. testified that when Douglas raised his shirt, C.P. saw his belt but did not see a gun. However, a police officer testified that C.P. previously said he saw a firearm during this exchange.

In January 2012, Officer Phong Tran interviewed Hunter. Hunter said he knew Butler only in passing. He denied being in the area at the time of the shooting. Officer Tran interviewed Douglas in April 2012. Douglas said he was in Sacramento the day Butler was shot. He denied knowing Hunter or ever driving a green Lexus.

Ten casings were collected from the scene of the shooting. All had been fired from the same semi-automatic firearm.

Defense Case

An expert in shooting scene reconstruction analysis testified that, based on the location of the casings and the bullet impacts on Butler’s car, it was virtually impossible for the shooter to have been standing when shooting at the car. Instead, it was highly likely the shots were fired by a person in a car.

Verdict and Sentence

The jury found both appellants guilty of first degree murder (Pen. Code, § 187).[2] As to Douglas, the jury found true an enhancement that a principal was armed with a firearm (§ 12022 subd. (a)(1)). As to Hunter, the jury found true a great bodily injury enhancement (§ 12022.7) and multiple firearm enhancements (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c), & (d)). The jury also found Hunter guilty of being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The trial court sentenced Douglas to an aggregate prison term of 26 years to life, and sentenced Hunter to an aggregate prison term of 50 years to life.

DISCUSSION

I. Ineffective Assistance of Counsel

“The two-prong standard governing claims of ineffective assistance of counsel is well settled. ‘ “ ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.’ ” ’ ” (People v. Johnson (2016) 62 Cal.4th 600, 653 (Johnson).)

A. Testimony About Witnesses’ Fear of Retaliation

Appellants argue their trial counsel were constitutionally ineffective in failing to object or take other steps in response to testimony about witnesses’ fear of retaliation.

1. Additional Background

Several witnesses—residents from the North Oakland neighborhood and Officer Tran—testified that people who cooperated with law enforcement were considered “snitches” and were at risk of being physically harmed. Many of the neighborhood witnesses, including A.W. and D.C., testified they did not want to testify in court and were doing so only because they had been subpoenaed.

In addition, during D.C.’s testimony, the prosecutor asked about a conversation they had that morning:

“Q. Didn’t you say, ‘I don’t want to go up there and sit in front of those two dudes’?

“A. Yes.

“Q. And you said because you’re concerned, you’re afraid, right . . . ?

“A. Yeah.”

The prosecutor then elicited testimony that D.C.’s cousins live on the same block as Douglas’s cousin and that a person who testifies in court is considered a snitch, putting both the person and their loved ones at risk. Officer Tran testified that during D.C.’s interview, D.C. was afraid and did not want his name on any paperwork. An inspector for the district attorney’s office testified D.C. told him he was afraid for himself and his family, and was afraid to go to North Oakland because he had spoken to the police.

Near the end of A.W.’s testimony, the following exchange took place:

“Q. Prior to coming into court today, did you ask me who was gonna be in court?

“A. Yeah.

“Q. Were you concerned about who was gonna be present?

“A. Yeah.

“Q. Why?

“A. My safety, the safety of my kids.

“Q. And at the preliminary hearing, did you tell [the prosecutor] the same thing, ask him who was gonna be in court, I need to know?

“A. Yeah.

“Q. Did I promise you I’d tell you who was gonna be in court to the best of my ability?

“A. Yeah.”

Officer Tran testified that in his first interview with A.W., she was “very scared,” requested her name not be used, and did not want her face to appear on the video recording of the interview. He also testified that when he brought A.W. to court to testify, she repeatedly expressed fear about testifying. The inspector for the district attorney’s office also testified A.W. told him she was afraid to testify and said something to the effect of, “ ‘I could die tomorrow and my kids won’t remember me a year from now.’ ”

2. Evidence Code Section 352 Objection

Appellants do not contend counsel should have objected to testimony that D.C., A.W., and others were scared to testify and feared harm for being a “snitch.” (See (People v. Valdez (2012) 55 Cal.4th 82, 135 [“ ‘ “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.” [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to the jury’s assessment of his or her credibility and is well within the discretion of the trial court. [Citation.] For such evidence to be admissible, there is no requirement to show threats against the witness were made by the defendant personally or the witness’s fear of retaliation is “directly linked” to the defendant.’ ”].) Instead, they argue their attorneys were ineffective in failing to make an Evidence Code section 352 objection to D.C.’s testimony that he had previously told the prosecutor, “ ‘I don’t want to go up there and sit in front of those two dudes’ ” (emphasis added) and the subsequent testimony that his cousins lived near Douglas’s cousin, and A.W.’s testimony that she wanted to know who would be in court when she testified. Appellants contend this testimony was cumulative of the testimony about their general fear of testifying and was highly prejudicial.

Assuming trial counsel’s performance was deficient for failing to so object, we conclude appellants suffered no prejudice. Appellants characterize the challenged evidence as testimony that the witnesses “feared violent retaliation directly from [appellants] or their associates.” We agree with the People that the testimony was more ambiguous. There was ample testimony—from D.C., A.W., and others—that being considered a “snitch” was dangerous. In light of such testimony, and the absence of any evidence that either appellant threatened D.C. or A.W., these witnesses’ fear of testifying in front of appellants was most likely construed as a fear that people in the neighborhood would learn about their testimony and they would therefore be labeled snitches, rather than a fear that appellants themselves would retaliate. Similarly, D.C.’s fear of retaliation against his cousins was most likely construed as a fear that Douglas’s cousin would tell residents in the neighborhood about D.C.’s testimony.[3]

We further disagree with appellants’ characterization of the prosecutor’s closing statement as arguing that appellants were “the specific cause of the witnesses’ fear of violent retaliation.” Appellants point to the following statement: “From now on, no matter what happens in this room, [A.W.] has to look over her shoulder. She has to look out for her kids. . . . She’s being punished for telling the truth. She’s being punished out there and she’s punished by these two right here.” This statement is most reasonably construed as arguing A.W. was being punished because appellants murdered Butler, resulting in her testimony and subsequent identity as a snitch. Appellants also highlight the prosecutor’s statement that D.C. was not honest “in here in front of these two men.” Again, the statement is ambiguous as to whether D.C. feared retaliation from appellants or simply feared others in the neighborhood would be informed of his testimony. (Cf. People v. Kirkes (1952) 39 Cal.2d 719, 722, 724 [prosecutor’s argument, not supported by evidence, that key witness “ ‘waited for her own safety until this Defendant was apprehended . . . before coming forward, because if she had come forward . . . her life wouldn’t be worth that’ ” painted the defendant “as a murderer who would kill again to cover his crime and so bold that he had threatened those who might testify against him”].)

In sum, the challenged testimony was both brief and ambiguous. Even assuming an Evidence Code section 352 objection would have been successful, we find no reasonable likelihood of a more favorable outcome.

3. Limiting Instruction

Appellants next contend their trial attorneys were deficient in failing to seek a limiting instruction that all of the testimony about witnesses’ fear of testifying was admissible only for credibility purposes.

We assume counsel’s performance was deficient and such a limiting instruction would have been granted upon request. We again find no prejudice. Contrary to appellants’ contention, the prosecutor did not argue the testimony for any purpose other than credibility, and it is not reasonably likely the jury considered it for any other purpose. (See People v. Chism (2014) 58 Cal.4th 1266, 1293 [“Neither the evidence nor the prosecutor suggested the accusation [made by a third party, accusing a witness of speaking to the police] was evidence of defendant’s consciousness of guilt.”].)

4. Stipulation Regarding No Evidence of Appellants’ Threats

Appellants also argue trial counsel should have sought a stipulation from the prosecutor that there was no evidence either appellant had threatened any witness. Of course, there was evidence that could be construed as a threat: Douglas’s warning C.P. not to ‘end up being a poster on a telephone pole’ ” like Butler. To the extent appellants contend trial counsel should have sought a stipulation relating to the remaining witnesses, we find no prejudice. Other than the above incident, there was no testimony about threats to any witnesses and the prosecutor did not suggest or argue otherwise. It is not reasonably probably that a stipulation so stating would have resulted in a more favorable outcome.

B. A.W.’s Prior Convictions

1. Additional Background

During in limine motions, defense counsel sought to impeach A.W. with prior convictions for sale of cocaine base, grand theft, and perjury—convictions she had admitted at the preliminary hearing. The prosecutor did not object and the trial court granted the motion.

When A.W. testified, both the prosecutor and Douglas’s attorney elicited testimony that she used to sell drugs in North Oakland. Neither defense counsel impeached her with any prior convictions.

2. Analysis

Appellants contend their trial attorneys were constitutionally ineffective in failing to impeach A.W. with her prior convictions for grand theft and perjury. We reject the challenge.

“ ‘[A]n appellate court’s ability to determine from the record whether an attorney has provided constitutionally deficient legal representation is in the usual case severely hampered by the absence of an explanation of an attorney’s strategy.’ [Citation.] For this reason, we long ago adopted the rule that ‘ “[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.” ’ ” (Johnson, supra, 62 Cal.4th at p. 653.)

The record does not reveal why trial counsel did not impeach A.W. with her prior convictions, counsel was not asked for an explanation, and there could be a satisfactory explanation. Trial counsel may have determined that A.W. was a sympathetic witness—she broke down in tears during her testimony—and that the jury would look negatively on any impeachment with prior convictions. In addition, when asked about the perjury conviction at the preliminary hearing, A.W. testified, “I did not know that I was committing welfare fraud” until she was prosecuted. Trial counsel may have determined that A.W. might similarly try to explain her prior convictions at trial and that the jury would view such explanations sympathetically. Because trial counsel may have made a strategic decision not to impeach A.W. with the prior convictions, we reject appellants’ ineffective assistance of counsel claim on direct appeal.

II. Prosecutorial Misconduct

A. Additional Background

A.W. testified that, after the shooting, she noticed an older woman sitting in one of the parked cars that was involved in the crash. Subsequently, Officer Tran testified that a woman named Ramona Benson “was listed as a victim initially on the report.” As the prosecutor began to question Tran about his “followup” on Benson, defense counsel objected. After an unreported discussion in chambers, the trial court overruled the objection. Immediately after this ruling, the following took place:

“Q. . . . You said that Miss Benson was listed as a victim?

“A. Yes, sir.

“Q. What did that have -- what relevance was that to your investigation?

“A. To show that she was on the scene.

“Q. And did it -- as far as your investigation, was she involved in any of the cars that were crashed into?

“A. She was seated --

“[Hunter’s counsel]: Objection.

“The Court: Hold on, hold on.

“[Hunter’s counsel]: Objection. Hearsay.

“The Court: I’ll sustain that at this time.

“[Prosecutor]: Q. All right. Again, just as it relates to your investigation overall in terms of your interview of [A.W.], did she provide you with information that you associated . . . with being Miss Benson who was transported to the hospital?

“[Douglas’s counsel]: Objection. Same objection, Judge.

“The Court: Overruled.

“[Officer Tran]: Yes, sir.

“[Prosecutor]: Q. All right. And the information [A.W.] provided, you associated that with Miss Benson?

“A. Yes, sir.”

During closing statements, the prosecutor argued the jury should find A.W.’s testimony credible. As part of this discussion, he argued, “[A.W.] says, ‘There was a woman in one of the parked cars.’ And you heard from Officer Tran who said, ‘Oh, yeah. When I interviewed her I realized that that was -- that had been verified from the earlier investigation because the woman who was in the car got transported to Kaiser. And as the lead investigator, I needed to be aware of that.’ Stuff that you wouldn’t know unless you were there.”

At the conclusion of the prosecutor’s argument, outside the presence of the jury, defense counsel objected to the argument about the woman in the car, arguing the evidence was not admitted for the truth, but “purely to explain the actions of Investigator Tran.” Defense counsel argued that, contrary to that limited purpose, the prosecutor stated it in argument “as if it was a fact” and “told the jury that that’s for her credibility and that was exactly what it was not permitted to be offered for.” Defense counsel subsequently clarified: “it’s undisputed that there was testimony from [A.W.] about the lady being in the car. . . . [¶] The argument by [the prosecutor] leaves the impression that there actually objectively out there in the world is other evidence that corroborates [A.W.]. And there’s not -- none of that came in. . . . [¶] So I would request that the jury be instructed that other than [A.W.]’s statement about a woman being in the car, you’ve heard no evidence that there was.”

The prosecutor responded, “the way I argued it was that during the interview, in Officer Tran’s mind for his investigation, it verified in his mind as far as her credibility. There was no -- I don’t recall any discussion that it didn’t go to her credibility. I’m pretty sure I said it does have to do with her credibility as far as the investigation was concerned.” He also argued the jury had been properly instructed that the attorney’s arguments were not evidence.[4]

After reviewing A.W.’s testimony and the challenged statement from the prosecutor’s closing argument, the trial court overruled the objection. The court reasoned, “I don’t believe that [the prosecutor] tried to make the connection that’s being suggested,” and “I’m not going to admonish the jury with respect to what may or may not be in the record.”

B. Analysis

Appellants argue the trial court erred in refusing to admonish the jury because the prosecutor’s argument “invoked Tran’s testimony for the truth of the proposition that there was a woman injured in a parked car at the scene of the shooting and car crash.” They contend Tran’s testimony instead “was admitted solely ‘as it relates to [Tran’s] investigation.’ ” The prosecutor argued that the testimony was admitted for purposes of A.W.’s “credibility as far as the investigation was concerned.” During Tran’s testimony itself, the argument and ruling on appellants’ first objection was unreported and the trial court did not issue a limiting instruction (nor did defense counsel request one on the record), although the prosecutor framed his questions as relating to Tran’s investigation. We therefore presume that, as the prosecutor argued, the evidence was admitted to show one of the reasons Officer Tran found A.W. credible.[5] (People v. Martinez (2017) 10 Cal.App.5th 686, 728 [“ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ”].) So assuming, the trial court did not err in finding the prosecutor’s argument—that A.W. said there was a woman in one of the parked cars, and that Officer Tran verified that as part of his investigation—a fair characterization of the evidence.

III. Evidence Regarding Douglas’s Display of a Firearm

A. Additional Background

During in limine motions, the prosecutor sought to admit C.P.’s statement “that he said something to upset Mr. Douglas and Mr. Douglas’s response was to brandish a firearm and say, don’t end up in a burning car,” which C.P. took as a reference to Butler’s killing. Douglas’s counsel did not object to the admission of Douglas’s statement to C.P., but argued the reference to the firearm was more prejudicial than probative. The court ruled testimony about the firearm was admissible: “I think it . . . gets by through context. It’s not prejudicial. It’s a situation as to which the jury can make determinations, whether it’s a threat or not a threat, whether [C.P.] perceived it in a certain way. All these things can be examined through his direct and cross-examination. And I think, in the big picture, it is something that is relevant. It’s not unduly prejudicial. It will not require us to engage in undue consumption of time. I don’t think it will confuse the jury . . . .”

At trial, C.P. testified that a couple of weeks after Butler’s shooting, Douglas “raised his t-shirt up and said [to C.P.], ‘Don’t end up being a poster on a telephone pole,’ ” referring to posters about Butler. C.P. testified that when Douglas raised his shirt, all C.P. saw was his belt, although C.P. “assumed” Douglas wanted C.P. to see a gun. Officer Tran subsequently testified C.P. told him that Douglas “lifted up his shirt, showed him a gun, and said, ‘Don’t end up in a burning car.’ ”

B. Analysis

Douglas contends the trial court’s ruling was an abuse of discretion. In People v. Barnwell (2007) 41 Cal.4th 1038 (Barnwell), relied on by Douglas, the trial court admitted testimony “which tended to show that a year before the murders defendant possessed another handgun similar to the murder weapon,” reasoning that “the ‘relatively unique’ characteristics of the pistol . . . found in his possession demonstrated his ‘propensity to own or carry that type of weapon.’ ” (Id. at pp. 1055–1056.) The Supreme Court held the ruling in error: “When the prosecution relies on evidence regarding a specific type of weapon, it is error to admit evidence that other weapons were found in the defendant’s possession, for such evidence tends to show not that he committed the crime, but only that he is the sort of person who carries deadly weapons.” (Id. at p. 1056; see also People v. Archer (2000) 82 Cal.App.4th 1380, 1392–1393 [“ ‘Evidence of possession of a weapon not used in the crime charged against a defendant leads logically only to an inference that defendant is the kind of person who surrounds himself with deadly weapons—a fact of no relevant consequence to determination of the guilt or innocence of the defendant.’ ”].)

A subsequent Supreme Court case characterized Barnell as holding “that it was error to admit evidence that the defendant possessed a gun that was not connected with the charged crime . . . .” (People v. Nguyen (2015) 61 Cal.4th 1015, 1073 (Nguyen).) In Nguyen, the Supreme Court upheld the admission of “evidence that defendant possessed numerous firearms” because, unlike the evidence in Barnell, such evidence “had ‘tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action’ (Evid. Code, § 210) namely, that [the defendant] was a gang member at war with a rival gang.” (Nguyen, at p. 1073.) As in Nguyen, the firearm evidence here was not unrelated to the crime and irrelevant for any permissible purpose. Instead, the evidence bore on whether Douglas intended C.P. to understand his statement as a threat—that C.P. would end up like Butler—which in turn was relevant to Douglas’s consciousness of guilt.[6] The admission was not an abuse of discretion.[7]

IV. Sentencing Issues

A. Franklin Remand

When the crime was committed, Hunter was 22 and Douglas was 19. Accordingly, during their 25th year of incarceration, the Board of Parole Hearings (Board) will conduct a youth offender parole hearing for each appellant. (§ 3051, subds. (a)(1) & (b)(3).) At this hearing, the Board “shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (§ 4801, subd. (c).)[8] Appellants argue they are entitled to a limited remand to permit them to “make a record of information relevant to [their] eventual youth offender parole hearing[s].” (People v. Franklin (2016) 63 Cal.4th 261, 284 (Franklin).) We agree.[9]

Our Supreme Court reasoned that the youth offender parole hearing statutes “contemplate that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board’s consideration. For example, section 3051, subdivision (f)(2) provides that ‘[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime . . . may submit statements for review by the board.’ Assembling such statements ‘about the individual before the crime’ is typically a task more easily done at or near the time of the juvenile’s offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away. [Citation] In addition, section 3051, subdivision (f)(1) provides that any ‘psychological evaluations and risk assessment instruments’ used by the Board in assessing growth and maturity ‘shall take into consideration . . . any subsequent growth and increased maturity of the individual.’ Consideration of ‘subsequent growth and increased maturity’ implies the availability of information about the offender when he was a juvenile.” (Franklin, supra, 63 Cal.4th at pp. 283–284.)

The defendant in Franklin was sentenced before enactment of the statutes providing for youth offender parole hearings and it was unclear whether he had the opportunity to submit this information at his sentencing hearing. (Franklin, supra, 63 Cal.4th at p. 282.) Accordingly, the California Supreme Court remanded “the matter to the trial court for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing. [¶] If the trial court determines that Franklin did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. Franklin may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender’s characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to ‘give great weight to’ youth-related factors (§ 4801, subd. (c)) in determining whether the offender is ‘fit to rejoin society’ despite having committed a serious crime ‘while he was a child in the eyes of the law’ [citation].” (Id. at p. 284.)

At appellants’ sentencing hearing, their trial counsel submitted no sentencing memoranda, documents, or testimony relevant to their future youth offender parole hearings. Neither defense counsel, the prosecutor, nor the trial court mentioned appellants’ youth or their future youth offender parole hearing, or appeared to be aware that the sentencing hearing was the preferred time to place on the record evidence relevant to the youth offender parole hearing. We agree with appellants that the record is thus unclear as to whether they had the opportunity to make the record contemplated in Franklin.

The People argue that, because appellants were sentenced after the enactment of the youth offender parole hearing statutory scheme, and after Franklin issued (by approximately six months), they had a sufficient opportunity to submit relevant information. The People rely on People v. Cornejo (2016) 3 Cal.App.5th 36 (Cornejo). In that case, the Court of Appeal found “the record establishes [the defendants] were afforded sufficient opportunity to make a record regarding their characteristics and circumstances at the time.” (Cornejo, at p. 68.) The Court of Appeal described this record in detail, including, with respect to one defendant, “23 character reference letters . . . . relat[ing] directly to the question of whether [he] is one of those rare juvenile offenders who may be deemed to be ‘irreparably corrupt, beyond redemption, and thus unfit ever to reenter society,’ ” and, with respect to the other defendant, a sentencing memorandum describing his “mother’s drug addiction and father’s absence [which] resulted in him ‘receiv[ing] virtually no support or guidance as a child,’ ” and “evidence he ‘was sexually abused by his brother,’ ‘his father abused other family members,’ and his ‘family became homeless when he was 12 or 13 [years old] and he had to rely on his friends for food and shelter.’ ” (Id. at p. 69.) No such record was made for either appellant.

We do not construe the brief references to appellants’ background contained in their probation reports as a sufficient record on this issue. People v. Tran (2018) 20 Cal.App.5th 561 (Tran) rejected a similar argument, finding that “the report is largely bereft of information about appellant’s character, cognitive ability, psychological functioning or maturity . . . , and it offers no analysis or insight whatsoever as to how [his youth] may have affected his behavior. In short, the report does not obviate the need for a hearing respecting appellant’s youthful characteristics, as contemplated by the Franklin decision.” (Id. at p. 570.) This reasoning is sound and applies equally here.

“We do not take lightly the additional expense [a Franklin remand] entails. But the issue will be whether a middle-aged man who has spent a quarter-century in prison should be released. We think decisions like that should be as informed as possible.” (Tran, supra, 20 Cal.App.5th at p. 570; see also Franklin, supra, 63 Cal.4th at p. 284 [“The goal of [the proceeding on remand] is to provide an opportunity for the parties to make an accurate record of the juvenile offender’s characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to ‘give great weight to’ youth-related factors (§ 4801, subd. (c)) in determining whether the offender is ‘fit to rejoin society’ despite having committed a serious crime ‘while he was a child in the eyes of the law’ [citation].”].) Accordingly, we remand the matter to the trial court for the proceeding contemplated in Franklin.

B. Firearm Enhancements

The trial court sentenced Hunter to 25 years to life for discharging a firearm causing death (§ 12022.53, subd. (d)), and imposed but stayed one concurrent twenty-year term and two concurrent ten-year terms for three additional firearm enhancements (§ 12022.5, subd. (a), 12022.53, subds. (b) & (c)).[10] Hunter argues he is entitled to a remand of the firearm enhancements pursuant to new legislation that grants trial courts the discretion to strike or dismiss a firearm enhancement. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2 [eff. Jan. 1, 2018]; People v. Robbins (2018) 19 Cal.App.5th 660, 678–679 [§ 12022.53, subd. (h) applies retroactively in cases that are not yet final on appeal on its effective date].)

The People argue a remand is unnecessary, pointing to the trial court’s comments at sentencing that Hunter’s act was “callous[] and senseless[] . . . beyond description.” In People v. Gutierrez (1996) 48 Cal.App.4th 1894, cited by the People, a California Supreme Court case clarified while the appeal was pending that trial courts had discretion to strike certain prior convictions; the Court of Appeal found it unnecessary to remand because the trial court stated on the record that, even if it had the discretion to strike the prior conviction, it would not have done so. (Id. at p. 1896.) The trial court made no such clear statement in this case, and it should properly determine in the first instance whether to exercise its discretion. (See People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081 [remanding where “the record does not ‘clearly indicate’ the court would not have exercised discretion to strike the firearm allegations had the court known it had that discretion”].) We will reverse and remand the enhancements.[11]

C. Great Bodily Injury Enhancement

In sentencing Hunter, the trial court imposed and stayed a sentence for personally inflicting great bodily injury (§ 12022.7). The parties agree this enhancement should be stricken. (§ 12022.7, subd. (g) [“[t]his section shall not apply to murder”]; People v. Cook (2015) 60 Cal.4th 922, 938 [“no great bodily injury enhancement can attach to a conviction for murder”].) We will modify the judgment accordingly.

V. Abstract of Judgment

A. Restitution

The trial court ordered Hunter pay $5,000 to the California Victim Compensation Board, jointly and severally with Douglas. The abstract states this restitution is to be paid to the “victim(s).” The parties agree the abstract should be corrected, and we will so order. Although Douglas does not so argue, the same error appears in his abstract of judgment and we will also order it corrected.

B. Count Two

In sentencing Hunter on count two (being a felon in possession of a firearm (§ 29800, subd. (a)(1)), the trial court imposed but stayed a two-year term. The court did not state its reasons for staying the term, but Hunter and the People both assume the stay was pursuant to section 654. The parties further agree the section 654 stay was based on a finding that Hunter did not initially possess the firearm but rather, as the prosecutor argued in his closing statement, Douglas retrieved the gun after the dispute arose with the victim as the North Side Market. (See People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones) [“[W]here the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes [being a felon in possession and the offense in which the felon employed the weapon] has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.”].)

The abstract of judgment states the sentence on count two is concurrent, and does not indicate the sentence was stayed. The People agree the abstract is in conflict with the oral pronouncement, but argue we should not correct it because the section 654 stay is unauthorized as a matter of law. Specifically, the People contend there is no evidence as to whether Hunter had the gun when he arrived at the scene or whether Douglas retrieved it after the dispute arose. We disagree. The surveillance footage from the North Side Market, as described by the prosecutor below, showed Douglas “does a U-turn and leaves the area” while Hunter “is engaging Charles Butler, trying to stall him, trying to keep him at the store.” The trial court could reasonably infer that, as the prosecutor argued, Douglas left to retrieve a gun while Hunter tried to keep Butler from leaving, and therefore that Hunter’s possession of the firearm was “only in conjunction with the primary offense.” (Jones, supra, 103 Cal.App.4th at p. 1143.) We will order the abstract of judgment corrected to reflect the court’s oral pronouncement of judgment.

DISPOSITION

In No. A149878, the judgment is affirmed and the matter is remanded for the limited purposes of (1) affording both parties the opportunity to make a record of information relevant to Douglas’s future youth offender parole hearing, as set forth in Franklin, supra, 63 Cal.4th 261; and (2) directing the trial court to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment that states restitution is to be paid to the California Victim Compensation Board, rather than to the “victim(s).”

In No. A151644, the judgment is modified to strike the section 12022.7 enhancement and, as so modified, is affirmed. The matter is remanded for the limited purposes of: (1) allowing the trial court to exercise its discretion under section 12022.53, subdivision (h); (2) affording both parties the opportunity to make a record of information relevant to Hunter’s future youth offender parole hearing, as set forth in Franklin, supra, 63 Cal.4th 261; and (3) directing the trial court to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment that (a) reflects any resentencing following the court’s exercise of discretion under section 12022.53, subdivision (h); (b) in the event the court does not exercise its discretion to strike the enhancements pursuant to section 12022.5, subdivision (a) and section 12022.53, subdivision (b), states the sentence on these enhancements has been stayed; (c) reflects the modified judgment striking the section 12022.7 enhancement; (d) states restitution is to be paid to the California Victim Compensation Board, rather than to the “victim(s)”; and (e) indicates that the sentence on count two was stayed.

SIMONS, J.

We concur.

JONES, P.J.

BRUINIERS, J.*

(A149878, A151644)