Filed 11/2/18 P. v. Downs CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH FRANKLIN DOWNS,
Defendant and Appellant.
|
E068960
(Super.Ct.No. 16CR059155)
OPINION
|
APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed in part; reversed in part with directions.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL BACKGROUND
On May 24, 2017, a second amended information charged defendant and appellant Joseph Franklin Downs with second degree burglary under Penal Code[1] sections 211 and 212.5, subdivision (c) (count 1), and possession of a firearm by a felon under section 29800, subdivision (a)(1) (count 2). As to count 1, the information also alleged that defendant personally used a firearm, to wit, a shotgun, causing the offense to become a serious and violent felony under sections 667.5, subdivision (c)(8), 1192.7, subdivision (c)(8), and 12022.53, subdivision (b). The information further alleged that defendant had suffered (1) a prior conviction, which was both a strike (§§ 667, subs. (b)-(i); 1170.12, subds. (a)-(d)) and a serious felony (§ 667, subd. (a)(1)); and (2) four prison prior convictions (§ 667.5, subd. (b)).
On June 7, 2017, a jury found defendant guilty of counts 1 and 2, and found true the firearm allegation. On June 8, 2017, the trial court found true all of the prior conviction allegations.
On July 7, 2017, the trial court sentenced defendant to an aggregate determinate term of 25 years in state prison.
On August 8, 2017, defendant filed a notice of appeal.
B. FACTUAL BACKGROUND
Midday on October 25, 2016, San Bernardino County Sheriff’s Deputy Caballero drove to a motel to investigate a report about an individual carrying a firearm. Deputy Caballero was undercover; he was armed, but was dressed in a T-shirt and jeans. Deputy Caballero observed two Black men standing in a parking lot; one of the men was later identified as defendant. Defendant was standing next to a car, pointing a shotgun at the driver. Because he was undercover, thus not wearing his tactical vest, Deputy Caballero chose not to engage with defendant at that time and instead drove his vehicle out of the parking lot and around to the front of the motel.
Deputy Caballero watched defendant enter a room at the motel; he lost sight of the second man. Sometime later, defendant and a Hispanic male exited the room and walked down the street. Other deputies had arrived by this time, and defendant was detained. The motel room was searched; two shotguns and a box of live shotgun rounds were found. One of the shotguns was loaded. Defendant was interviewed, and under Miranda[2] he admitted pointing a shotgun in the face of a man who owed defendant money for marijuana, and retrieving $50 from him.
DISCUSSION
A. THE CASE SHOULD BE REMANDED FOR RESENTENCING
Defendant contends that the case must be remanded for resentencing because amended section 12022.53, subdivision (h), is retroactive. The People concede. We agree.
In this case, defendant’s sentence on count 1 includes a 10-year enhancement under section 12022.53, subdivision (b), for personally using a firearm. At the time of defendant’s sentencing, imposition of the enhancement was mandatory. However, on January 1, 2018, Senate Bill 620, which amended section 12022.53, subdivision (h), went into effect. Under amended section 12022.53, subdivision (h), a trial court has discretion “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.” Both parties agree that amended section 12022.53, subdivision (h), should be applied retroactively.
In People v. Francis (1969) 71 Cal.2d 66, the Legislature amended a law to allow trial courts the discretion to impose misdemeanor or felony sentences to a crime that had previously been punishable only as a felony. (Id. at p. 75.) The California Supreme Court held that the amendment was retroactive to all cases not yet final on appeal. (Ibid.) The Supreme Court recently confirmed Francis. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 307-309, 311.) Recently, courts of appeal have held that the rule from Francis applies in this context because section 12022.53, subdivision (h), allows a trial court the discretion to strike a previously mandatory firearm enhancement. (See, People v. Robbins (2018) 19 Cal.App.5th 660, 678; People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091; People v. Arredondo (2018) 21 Cal.App.5th 493, 506.) We agree and hold that we are bound by the decision in Francis under Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.
Therefore, we agree with the parties that the case should be remanded to allow the trial court an opportunity to exercise its discretion under amended section 12022.53, subdivision (h).
DISPOSITION
The 10-year sentence enhancement under section 12022.53, subdivision (h), is reversed and remanded to the trial court with directions to resentence defendant consistent with this opinion. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
[1] All further statutory references are to the Penal Code unless otherwise specified.
[2] Miranda v. Arizona (1966) 384 U.S. 436.
