Filed 9/24/18 P. v. Leedy CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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Defendant Rakim Exavier Leedy appeals from his convictions for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)—count 1)[1] and discharging a firearm from a vehicle (§ 26100, subd. (c)—count 2) with true findings on both counts that he personally used a firearm (§ 12022.5, subd. (a)). On appeal, he contends: (1) the matter must be remanded to allow the trial court to consider exercising its discretion to strike the firearm enhancements; (2) the true finding on the firearm enhancement on count 2 must be stricken as it was not alleged in the information in violation of his due process rights; and (3) he is entitled to an additional day of custody credit. We agree the matter must be remanded to the trial court to consider exercising its discretion on the firearm enhancement, and we find the imposition of a firearm enhancement on count 2 was an unauthorized sentence that can be corrected at any time. We will reverse the judgment and remand the matter to the trial court for resentencing, including considering striking the firearm enhancement as to count 1 and recalculation of custody credits.

FACTUAL AND PROCEDURAL BACKGROUND[2]

Defendant and Brennon Crow got into a brief confrontation as Crow came home from work. During the confrontation, defendant pulled a gun out of his jacket. Crow went into his house and got his rifle and went back outside. He got about halfway down his driveway when a car drove slowly past with defendant in the passenger seat. Defendant pointed the gun and shot at Crow. Crow fired at the car as it drove away.

An information charged defendant with assault with a firearm (§ 245, subd. (a)(2)—count 1), with an enhancement allegation that defendant personally used a handgun in the commission of the offense (§ 12022.5, subd. (a)); discharging a firearm from a vehicle at a person (§ 26100, subd. (c)—count 2); shooting from a motor vehicle (§ 26100, subd. (d)—count 3); and possession of a firearm by a felon (§ 29800, subd. (a)—count 4). The information further alleged defendant was released on bail or on his own recognizance at the time of the commission of the offenses (§ 12022.1) and had a prison prior (§ 667.5, subd. (b)). Following the close of evidence, the trial court granted the People’s motion to dismiss counts 3 and 4 and strike the on-bail and prison prior enhancement allegations.

In instructing the jury, the trial court advised the jury that the information charged defendant with assault with a deadly weapon and discharging a firearm from a vehicle at a person, and that as to each of those counts the information also alleged defendant had personally used a firearm. The trial court instructed the jury if it found defendant guilty of count 1 and/or count 2 it must “decide whether for each crime the People have proved the additional allegation that the Defendant personally used a firearm during the commission of that crime.” The trial court also provided verdict forms for counts 1 and 2, and the personal use firearm enhancement allegations as to both counts. Defense counsel did not object.

The jury found defendant guilty of both counts and found true the enhancement allegations as to both counts. The trial court disagreed with the probation report’s recommendation to impose the upper term sentences for a term of 17 years. Instead, the trial court noted it was persuaded by the fact that defendant was 25 years old and had “some family support, who doesn’t have a long history of felony conduct, but if I impose the upper term as recommended of [17] years, I think the hopes for a turn around and a good future after incarceration for [defendant] are pretty close to nil. I think that long over that important period in a person’s development, that long in state prison is something I want to go into very carefully. And so I am persuaded that a nine-year sentence is appropriate in this case. I think it sends the right message of deterrent to others as well as, of course, to [defendant], but it gives him at least the potential that there’s light at the end of the tunnel and he is young enough that he can turn things around, at least he will have that opportunity.” The trial court sentenced defendant to an aggregate prison term of nine years, consisting of: the midterm of five years on discharging a firearm from a vehicle (count 2), the midterm of four years on the attendant personal use firearm enhancement, the midterm of three years for assault with a deadly weapon (count 1), and a midterm of four years on the attendant personal use firearm enhancement. The trial court stayed the sentences on the assault with a deadly weapon and enhancement allegation under section 654. The trial court also awarded defendant 348 days of presentence credit, including 304 days of actual credit and 44 days of custody credit.

DISCUSSION

1.0 Senate Bill No. 620

After the trial court sentenced defendant in this case, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.) that amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h), effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1-2), to permit a trial court to strike a firearm enhancement. Those sections now read, respectively: “The 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.”

Defendant contends under Senate Bill No. 620, we must remand the matter to the trial court to allow it to exercise its discretion to strike the firearm enhancement. The People concede that the amendments effectuated by Senate Bill No. 620 apply retroactively, but contend remand is not appropriate in this case, because remand would be futile.

We agree with the parties that Senate Bill No. 620 applies retroactively as explained in People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091. We also agree with defendant that the trial court must be afforded the opportunity to exercise this sentencing discretion. Unless the record reveals a clear indication that the trial court would not have dismissed or stricken the firearm enhancement even if at the time of sentencing it had the discretion to do so, remand is required. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.) Unlike the court in People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, here, we cannot say “the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.” The trial court disagreed with the recommendation to impose upper term sentences and explicitly indicated it was selecting a lesser term so as to give defendant the potential to turn things around. Therefore, remand is required.

2.0 Firearm Use an Element of Underlying Offense

Defendant contends since the information did not allege a firearm enhancement as to count 2, the true finding on the enhancement must be stricken, as it was not pleaded and proven. Accordingly, he claims his due process rights were violated. The People claim the error did not prejudice defendant.

We need not decide defendant’s due process claim. As both parties note in their briefing, the section 12022.5 enhancement does not apply if use of a firearm is an element of the underlying offense. (§ 12022.5, subd. (a).) Using a firearm is an element of the offense of discharging a firearm from a motor vehicle at another person. (§ 26100, subd. (c) [“Any person who willfully and maliciously discharges a firearm from a motor vehicle at another person other than an occupant of a motor vehicle is guilty of a felony punishable by imprisonment in state prison for three, five, or seven years.”].)[3] Accordingly, as a matter of law, the section 12022.5 enhancement could not be applied to defendant’s conviction for discharging a firearm from a motor vehicle.

Because the enhancement could not be applied to a charge of discharging a firearm from a vehicle, the sentence imposed is an unauthorized sentence. “ ‘[A] sentence is generally “unauthorized” where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is “clear and correctable” independent of any factual issues presented by the record at sentencing.’ (People v. Scott (1994) 9 Cal.4th 331, 354.) The error involved in an unauthorized sentence is not subject to forfeiture, and can never be harmless. (Ibid.; People v. Soto (2016) 245 Cal.App.4th 1219, 1235.) An unauthorized sentence may be corrected at any time by a court with jurisdiction. (See People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.)” (People v. Cabrera (2018) 21 Cal.App.5th 470, 477.) Although we have authority to modify an unauthorized sentence (§ 1260), we are not authorized to substitute our judgment for that of the trial court with respect to discretionary sentencing decisions. (People v. Lawley (2002) 27 Cal.4th 102, 171-172; People v. Hines (1997) 15 Cal.4th 997, 1080.) Where the correction of a sentencing error may affect the trial court’s discretionary sentencing choices, we must reverse and remand, to give the trial court an opportunity to restructure its sentencing choices in light of this opinion. (People v. Rodriguez (2009) 47 Cal.4th 501, 509.)

3.0 Presentence Custody Credits

Defendant contends the trial court erred in calculating his custody credits. He argues he was entitled to 45 days, not 44, in that he was entitled to 15 percent of 304 days. The People concede the calculation error, but argue defendant should be precluded from raising this claim because he did not first seek correction in the trial court. Because we are remanding the matter for resentencing, we will direct the trial court to recalculate the custody credits.

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court to exercise its discretion in resentencing defendant in accordance with this opinion. The trial court clerk is then directed to prepare a new abstract of judgment and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.

BUTZ , J.

We concur:

ROBIE , Acting P. J.

RENNER , J.