Filed 4/10/18 P. v. Latu 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

TOMASI LATU et al.,

Defendants and Appellants.


C083419

(Super. Ct. No. 15F02935)


In this case, defendants Tomasi Latu and Sione Makaafi (who are brothers) appeal from their respective convictions stemming from a robbery.
On appeal, Latu contends the evidence was insufficient to establish he used a firearm during the robbery. (Pen. Code, § 12022.53.) He also contends the trial court erred in allowing additional argument after the jury reported they were deadlocked on the firearm enhancements. In supplemental briefing, Latu argues he is entitled to relief under statutory amendments providing the trial courts with discretion to strike section 12022.53 firearm enhancements. Since Latu’s conviction is not yet final, we will remand his case to the trial court to exercise its discretion to strike the firearm enhancements. As to his other contentions, we conclude there was sufficient evidence to support the use of a firearm during the robbery and the trial court did not abuse its discretion in ordering additional argument. The judgment against Latu is affirmed.
Appointed counsel for Makaafi has 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.) The trial court did not orally dismiss the remaining charges and enhancements as had been agreed between Makaafi and the People, and, in the interests of judicial economy, we will do so. Finding no arguable error that would result in a disposition more favorable to Makaafi, we will affirm the judgment as modified.
In addition, with respect to both Latu and Makaafi, we will order the trial court to correct the abstracts of judgment because they do not include the jail booking and classification fees imposed by the trial court during its pronouncement of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 14, 2015, L.’s white minivan was stolen from his residence. That same day, M. and A. were working at a local restaurant. At 9:48 p.m., two men wearing masks and hooded sweatshirts entered the restaurant, demanded money, and pulled out a gun and pointed it at A., who was standing near the cash register. The men threatened to shoot if M. and A. did not comply. One of the men shoved A. into a table. M. was afraid, so he opened the cash register and gave the men $200. One of the men pointed the gun at M. as he was behind the counter. The two men left, and M. stepped outside and saw the men driving away in a white van. M. called 911 and the police arrived. The incident was recorded by the restaurant’s surveillance video system, a copy of which was played for the jury.
B. testified at trial that he was sitting and waiting for his food in the restaurant when the two robbers entered, one of them carrying a large, silver handgun with black trim that emitted a laser red dot where it was pointed. B., who had served in the military for two years and was trained in firearms (although not handguns), testified he could not be sure, but the gun “looked real” to him. B. testified he was afraid during the robbery, especially since the robbers were being so aggressive.
At trial, M. testified he was inexperienced with guns and had never seen a handgun before. M. testified the gun used during the robbery was dark silver. From afar it looked real to M., but, as he got closer, he thought the gun “looked a little off.” “For a moment,” he thought the gun could have been fake, but he assumed it was real, especially given the situation. M. did not tell the police on the night of the incident that he thought the gun might have been fake.
A few minutes after the robbery, police patrolling in a marked vehicle noticed a white minivan matching the description of the vehicle from the robbery. Police followed the minivan. A records check revealed the minivan had been reported stolen. The minivan failed to stop at a stop sign, so police activated their lights and siren to initiate a traffic stop. A high speed chase ensued, and the minivan eventually crashed into a pole. A video from a police officer’s in-car camera showing the chase was played for the jury. Inside the minivan, police found a black knit stocking hat and a duffle bag containing $213 in cash. At trial, a police officer testified the duffle bag appeared to be the same duffel bag as in the video of the robbery. No guns or bullets were found. Police detained Latu and Makaafi at the crash scene. Police saw a third man get out of the minivan and run from the crash scene.
Police interviewed Latu while he was in the back of the patrol car, a video of which was played for the jury. Latu told police they were coming from the restaurant and he, Makaafi, and a third man had planned the robbery, with Makaafi as the driver. According to Latu, they only obtained a small amount of cash from the robbery. Latu said he had the gun in the restaurant and “[p]ointed it at everybody” behind the counter. When Latu got into the minivan to leave the restaurant, he dropped the gun inside the vehicle. Latu was unsure whether the third man, who had fled the scene, had picked up the gun. Latu did not know where the third man had gone. Latu’s grandmother lived nearby with other family members, including children, and police expressed concern that the third man was now, “running around with a gun,” possibly in the grandmother’s house. Police explained Latu could get in significant trouble if the third man decided to use the gun against police, including possibly being guilty of felony murder. Latu again denied knowing whether the third man had taken the gun. Latu never mentioned the gun was fake, and police never asked whether the gun was real.
The next morning, police interviewed Latu again. An audio recording of the interview was played for the jury. Latu repeated his story that he had the gun in the restaurant and dropped it inside the minivan. The interviewing detectives presented scenarios involving the now missing gun, including a child grabbing the gun and shooting someone by accident, or someone else using the gun in a different crime. Police reminded Latu his fingerprints and DNA were on the gun. Latu responded, “[t]hat’s on me” and again denied knowing what happened to the gun.
At trial, Patrick Alexander, a firearms instructor, testified he reviewed the surveillance video of the robbery. He testified it was no longer possible to ascertain via a photo whether any gun was real, since there are “so many replica guns.” He also testified he was “unable to tell” if the gun used during the robbery was real or fake.
Latu
Latu was charged with two counts of second degree robbery (§ 211; counts one-two). It was further alleged Latu personally used a firearm during the commission of counts one and two. (§ 12022.53, subd. (b).)
Trial began on September 27, 2016. The jury began deliberations on Thursday, September 29, 2016 but did not deliberate on September 30, 2016. The jury resumed deliberations at 9:00 a.m. on Monday, October 3, 2016. At 10:20 a.m., the jury sent a note informing the trial court it was having difficulties understanding the instructions on reasonable doubt and circumstantial evidence. The trial court responded it could give no further definition regarding reasonable doubt and asked whether the jurors were having difficulty with circumstantial evidence regarding the robbery or firearm enhancement allegations. The jury did not respond to the trial court’s question. At 11:30 a.m., the jury asked to hear witness testimony, and the court reporter read M.’s testimony regarding whether the gun was fake or not. At 2:03 p.m., the jury informed the trial court it was unable to agree on the firearm enhancements. In response to a query from the trial court, the jurors stated they had reached a verdict on counts one and two. The trial court asked whether there was anything else the court could do to assist them in reaching a determination on the firearm enhancement allegations. Juror No. 9 (also the jury foreperson) said no, but Juror No. 12 stated she would like clarification on reasonable doubt. The trial court responded it had provided the legal definition of reasonable doubt via CALCRIM No. 220, and asked the jury to write out any more specific questions. The jurors informed the trial court they had taken two votes on the firearm enhancement allegations, and both times the result was nine to three. At the direction of the trial court, the jurors then returned to the jury room to write out any questions.
Outside the presence of the jury, the trial court discussed with counsel how to proceed. The prosecutor suggested additional argument, but the trial court expressed concern it would not be helpful because the parties had “already argued the facts pretty well.” The jury subsequently sent questions to the trial court regarding reasonable doubt, including whether there was a difference between “reasonable” and “possible” doubt, or a difference between “possible” and “imaginary” doubt. In addition, the jury asked whether the “threat of intended use [could] be considered as evidence of a firearm being used in the commission of a robbery.” The trial court expressed concern to counsel that a response from the court would be “a minefield for . . . some sort of legal error,” and suggested the lawyers reargue reasonable doubt. The prosecutor agreed this was a good idea, but defense counsel disagreed, stating the issue was already covered during closing argument. The trial court gave each side seven minutes, and, as the trial court suggested, both counsel focused their arguments on reasonable doubt with respect to the firearm use allegations.
The jurors resumed deliberations the next day (Oct. 4, 2016) and notified the court they had reached a verdict within 30 minutes. The jury found Latu guilty of counts one and two, and found true the firearm use enhancements. On November 3, 2016, the trial court sentenced Latu to serve an aggregate term of 13 years in state prison, as follows: three years for count one, plus ten years for the firearm use enhancement, and three years concurrent for count two, plus ten years concurrent for the firearm use enhancement. The trial court imposed various fines and fees, including a $367.81 main jail booking fee and a $67.03 main jail classification fee. (Gov. Code, § 29550.2.) The abstract of judgment does not include these two fees imposed pursuant to Government Code section 29550.2.
Makaafi
Makaafi was charged with two counts of second degree robbery (§ 211; counts one & two), driving the wrong way on a highway while fleeing a peace officer (Veh. Code, § 2800.4; count three), resisting police officers (§ 148, subd. (a)(1); count four), and unlawfully driving a vehicle without a driver’s license (Veh. Code, § 12500, subd. (a), count five). It was further alleged Makaafi was armed with a firearm during the commission of counts one and two. (§ 12022, subd. (a)(1).) Count four was dismissed during the preliminary hearing on March 3, 2016.
On September 28, 2016 (the second day of trial), the trial court granted the People’s motion to dismiss count five. On September 29, 2016, the trial court declared a mistrial as to Makaafi.
On October 7, 2016, Makaafi pleaded no contest to counts one (§ 211) and three (Veh. Code, § 2800.4). On November 3, 2016, the trial court sentenced Makaafi to state prison for two years eight months (two years for count one, and eight months for count three), per the parties’ agreement. The trial court imposed a $400 restitution fine (§ 1202.4, subd. (b)) and a corresponding $400 parole revocation fine suspended unless parole is revoked (§ 1202.45). In addition, the trial court ordered $60 in criminal conviction assessment fees (Gov. Code, § 70373), $80 in court security fees (§ 1465.8, subd. (a)(1)), $367.81 in main jail booking fees (Gov. Code, § 29550.2), and $67.03 in main jail classification fees (Gov. Code, § 29550.2). The trial court also ordered Makaafi to pay victim restitution in the amount of $213, jointly and severally with Latu.
At the plea hearing, Makaafi entered his plea in exchange for dismissal of the remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. During sentencing, the trial court did not dismiss the remaining counts. The jail booking and classification fees imposed pursuant to Government Code section 29550.2 are not reflected in the abstract of judgment. Makaafi did not seek a certificate of probable cause on appeal.
DISCUSSION
I
Latu’s Appeal
A.
Sufficiency of Evidence
Latu contends there is no substantial evidence supporting the finding he was holding an actual gun during the robbery, as required under section 12022.53, subdivision (b). According to Latu, none of the witnesses could say whether the gun was real or fake. In addition, the gun was never found, and police never asked Latu whether the gun was real.
“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.) A reviewing court does not reweigh evidence or reevaluate a witness’s credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Although a defendant must use a real gun to be guilty of section 12022.53, subdivision (b), “[c]ircumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm.” (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436.) For example, in Monjaras, the defendant challenged a jury’s determination that he personally used a firearm during a robbery. The defendant demanded the victim’s purse and pulled up his shirt to display the handle of a black pistol tucked in his waistband. (Ibid.) Although the victim could not definitively say whether the gun was real, she testified it looked real and assumed so as she handed over her purse. (Ibid.) The court upheld the defendant’s conviction, reasoning that, “the jury was entitled to take [the] defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm and that he was prepared to shoot the victim with it if she did not comply with his demand.” (Id. at p. 1437.) In addition, “the victim’s inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm.” (Ibid.)
Similarly here, the record provides sufficient evidence to support the inference that Latu’s gun was not a toy. Although M. testified the gun “looked a little off,” and briefly considered whether it was a fake, M. assumed the gun was real, just like the victim in Monjaras. B., who was trained in firearms, also testified the gun “looked real” to him. Also, just as in Monjaras, Latu acted threateningly with the gun. The surveillance video showed Latu pointing it at the victims, and M. testified the robbers verbally threatened to shoot the victims if they failed to comply. We conclude there was sufficient evidence to support the use of a firearm during the robbery.
B.
Additional Argument to Jury
Latu challenges his conviction for the firearm enhancements, contending the trial court erred in ordering additional argument after the jury stated it was deadlocked.
Under section 1140, a “jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.”
“ ‘The determination whether there is a reasonable probability of [juror] agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment “in favor of considerations of compromise and expediency.” [Citation.]’ [Citation.] The question of coercion is necessarily dependent on the facts and circumstances of each case. [Citation.]” (People v. Sandoval (1992) 4 Cal.4th 155, 195–196.)
“In 2007 the Judicial Council enacted [California Rules of Court,] rule 2.1036 to provide tools for the trial court to use in assisting the jury to reach a verdict without influencing the jury.” (People v. Salazar (2014) 227 Cal.App.4th 1078, 1086.) Rule 2.1036(a) states that where an impasse has been reported: “the trial judge may, in the presence of counsel, advise the jury of its duty to decide the case based on the evidence while keeping an open mind and talking about the evidence with each other. The judge should ask the jury if it has specific concerns which, if resolved, might assist the jury in reaching a verdict.” Rule 2.1036(b) continues: “[i]f the trial judge determines that further action might assist the jury in reaching a verdict, the judge may: [¶] (1) Give additional instructions; [¶] (2) Clarify previous instructions; [¶] (3) Permit attorneys to make additional closing arguments; or [¶] (4) Employ any combination of these measures.”
The trial court did not abuse its discretion in perceiving there was a reasonable probability the jury could reach a verdict. Although the jury foreperson (Juror No. 12) informed the court he thought there was nothing that could be done to enable jurors to reach agreement, Juror No. 9 stated she would like clarification on reasonable doubt, and the jurors subsequently submitted specific questions regarding reasonable doubt and circumstantial evidence. The trial court acted within its authority under rule 2.1036 in attempting to assist the jury in reaching a verdict by allowing additional argument regarding reasonable doubt as applied to the firearm enhancements. In addition, nothing in the record suggests the jury was coerced. As Latu concedes in his briefs, the court did not make any statements that could be interpreted as exerting pressure on any juror.
Within this contention, Latu makes a claim of prosecutorial misconduct during the additional argument. Latu forfeited any error because he did not object or request an admonishment at trial. (People v. Thornton (2007) 41 Cal.4th 391, 454 [a “defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety”].) Further, any alleged misstatements by the prosecutor during the additional argument are not relevant to determining whether the trial court abused its discretion in ordering additional argument.
C.
Statutory Amendments to Firearm Enhancements
Prior to January 1, 2018, an enhancement under section 12022.53 was mandatory and could not be stricken in the interests of justice. (See former § 12022.53, subd. (h); (Stats. 2010, ch. 711, § 5); People v. Felix (2002) 108 Cal.App.4th 994, 999.) Senate Bill No. 620 amended section 12022.53 to permit the trial court to strike an enhancement for personally using (§ 12022.53, subd. (b)) or personally and intentionally discharging (§ 12022.53, subd. (c)) a firearm. (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.) Under the new provision, “[t]he court may, 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. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (§ 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.)
Unless there is evidence to the contrary, we presume the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 747–748; People v. Brown (2012) 54 Cal.4th 314, 324.) The Estrada rule has also been applied to amendments giving the court the discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.) Because Latu’s conviction is not yet final, the amended section 12022.53 applies to his case. The appropriate remedy is to remand this case to the trial court to exercise its discretion to strike the firearm enhancements under section 12022.53, subdivision (h). (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
II
Makaafi’s Appeal
Appointed counsel for Makaafi filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel advised Makaafi of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from Makaafi.
Our review of the record reveals the trial court did not dismiss the remaining charges and enhancements at sentencing as had been agreed between Makaafi and the People. “ ‘When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.’ [Citation]” (People v. Panizzon (1996) 13 Cal.4th 68, 80.) In the interests of judicial economy, we will order the remaining counts and enhancements dismissed. We have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to Makaafi.
III
Government Code Section 29550.2 Fees
The abstracts of judgment do not reflect the jail booking and classification fees imposed by the trial court on both Latu and Makaafi. It has long been held that where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Mitchell (2001) 26 Cal.4th 181, 185.) We shall order the trial court to correct the abstracts of judgment to reflect the fees and fines imposed.
DISPOSITION
The judgment against Sione Makaafi is modified, dismissing count two and the enhancement allegations of committing a felony while armed with a firearm. As modified, the judgment is affirmed. The trial court is directed to correct the abstract of judgment to include a $367.81 main jail booking fee and $67.03 main jail classification fee pursuant to Government Code section 29550.2 and to send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
The judgment against Tomasi Latu is affirmed. The matter is remanded to the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if appropriate following exercise of that discretion, to resentence defendant accordingly. The trial court is directed to correct the abstract of judgment to include a $367.81 main jail booking fee and $67.03 main jail classification fee pursuant to Government Code section 29550.2 and to send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.



/s/
HOCH, J.



We concur:



/s/
ROBIE, Acting P. J.



/s/
RENNER, J.