Filed 5/9/18 P. v. Soto CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EPIFANIO SOTO,

Defendant and Appellant.

F073344, F073390

(Super. Ct. Nos. SF018215A, SF015819B)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
 
INTRODUCTION
Appellant Epifanio Soto stands convicted of two counts of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2); one count of felon in possession of a firearm, in violation of section 29800, subdivision (a)(1); and one misdemeanor count of resisting arrest, in violation of section 148, subdivision (a)(1). In addition, section 12022.5, subdivision (a) enhancements were found true as to both assault counts. Soto was sentenced to a total of nine years in prison for these offenses and enhancements in case No. SF018215A.
In a separate proceeding in case No. SF015819B, Soto was found to be in violation of his probation based upon commission of the offenses in case number SF018215A. As a result, probation was revoked and Soto was sentenced to a concurrent four-year term for these offenses.
Soto filed a timely notice of appeal in both cases; the appeals were consolidated on November 1, 2016. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. On this court’s own motion, we ordered supplemental briefing by the parties on the effect of Senate Bill No. 620 (SB 620) on the firearm enhancements imposed on Soto.
We affirm the convictions, but remand the matter for resentencing in light of the 2017 amendments to section 12022.5, granting discretion to the trial court to dismiss or strike the firearm enhancement in the interests of justice. (§ 12022.5, subd. (c).)
FACTUAL AND PROCEDURAL SUMMARY
Case No. SF018215A
Martha M. and Yesenia R. are cousins. In June of 2015, they both lived in Wasco with their grandmother. The night of June 18, 2015, the two went to the gym in a friend’s car. Yesenia was driving the car on their way home from the gym, when a bicyclist appeared. Yesenia pulled in front of her grandmother’s house.
The bicyclist, later identified as Soto, rode past the car. Soto said something as he rode past the car. Yesenia stated Soto rode past the front of the car; he turned his body so he was facing the car. When he was in front of the parked car, he pulled a small silver gun out and pointed it at the car. Martha stated he pulled a silver gun out, but pointed it in the air.
Throughout the entire time, Soto remained on his bicycle. Yesenia called 911 and gave a description of Soto and the gun. A short time later, she spoke with law enforcement at her friends’ house when she returned the borrowed car. Police interviewed Martha at her grandmother’s house.
Deputy James Jackson was on duty the night of June 18 and early morning of June 19, 2015. Based upon a dispatch call that included a description of the suspect, Jackson left the Wasco substation in a marked patrol vehicle. About five to six blocks from where the incident occurred, Jackson saw Soto on a bicycle.
Jackson activated the patrol car’s overheard lights; Soto began pedaling faster and rode across an easement where the patrol car could not follow. Jackson drove around the block and saw Soto jumping over a fence. He saw Soto jump over a second fence and yelled at Soto to stop. Jackson lost sight of Soto. A law enforcement perimeter was established and Soto was found kneeling in a carport between two vehicles.
The bicycle Jackson saw Soto riding was found near the first fence Soto jumped. A loaded, .38-caliber revolver was found about 10 to 15 feet away; it had five live rounds. Jackson never saw Soto holding a gun and no fingerprints were found on the gun. Yesenia and Martha identified the gun as the one they saw Soto holding when he was on his bicycle.
A complaint was filed against Soto on June 23, 2015. Martha and Yesenia testified at the July 8, 2015 preliminary hearing about the incident. Their testimony differed as to what Soto said when he rode past the car on his bicycle. Their testimony also differed on whether Soto pointed the gun at the windshield, or up into the air.
Jackson also testified at the preliminary hearing. He testified Soto did not stop after looking back and seeing Jackson had activated the patrol vehicle’s overhead lights. He also testified that Soto failed to obey commands to stop, instead jumping over fences and running away. Jackson additionally testified to the location of the bicycle and the gun that were found.
On July 13, 2015, the Kern County District Attorney filed an information in case No. SF018215A charging Soto in counts 1 and 2 with assault with a firearm, in count 3 with being a felon in possession of a firearm, and in count 4 with a misdemeanor charge of resisting or delaying arrest. Counts 1, 2, and 3 all alleged section 186.22, subdivision (b)(1) gang enhancements. Counts 1 and 2 also alleged section 12022.5, subdivision (a), personal use of firearm enhancements. The gang enhancements were dismissed on August 26, 2015.
A jury trial commenced on September 10, 2015. On September 21, 2015, the jury found Soto guilty on all four counts and found the section 12022.5, subdivision (a) enhancements true.
Soto filed a motion for new trial on December 7, 2015. The trial court heard argument on the motion and denied it on January 15, 2016.
The trial court proceeded to sentence Soto on January 15, 2016, imposing the upper term of four years for count 1, plus an additional three years consecutive for the firearm enhancement appended thereto. On count 2, a term of one year was imposed, plus an additional one year consecutive term for the firearm enhancement. Pursuant to section 654, no term was imposed for the count 3 offense. For the misdemeanor count 4 offense, a term of one year was imposed, to be served concurrently with the term for count 2. Custody credits were awarded and various fines and fees imposed. A total term of nine years in prison was imposed.
Soto filed a timely notice of appeal on March 9, 2016.
Case No. SF015819B
On September 27, 2010, Soto entered a no contest plea to one count of violating section 245, subdivision (a)(1), assault with a deadly weapon, and a misdemeanor charge of violating section 186.22, subdivision (a), the gang offense. On October 26, 2010, Soto was placed on probation for three years, subject to various terms and conditions, including that he not possess any weapons.
On April 28, 2014, Soto admitted violating probation. Probation was extended to April 28, 2017.
On June 23, 2015, a new violation of probation was alleged based upon the facts in case No. SF018215A. On July 8, 2015, the hearing on the violation of probation was heard jointly with the preliminary hearing in case No. SF018215A. The trial court found Soto to be in violation of his probation on July 8, 2015.
On January 19, 2016, Soto was sentenced to four years in state prison for this offense, to be served concurrently with the sentence imposed in case No. SF018215A. Credits were awarded and fines and fees were imposed.
A timely notice of appeal was filed on March 14, 2016. The appeals in case Nos. SF018215A and SF015819B were consolidated on November 1, 2016, by order of this court.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on March 1, 2017. On our own motion on November 28, 2017, this court requested supplemental briefing on the effect of SB 620 on the section 12022.5 firearm enhancements found true and for which Soto received a total of four years in prison.
At the time of the sentencing hearing in this case, imposition of an enhancement under section 12022.5 was mandatory, and it could not be stricken in the interest of justice pursuant to section 1385 or any other provision of law. (People v. Ledesma (1997) 16 Cal.4th 90, 100-102.)
On October 11, 2017, the Governor signed SB 620, effective January 1, 2018. (Stats. 2017, ch. 682, § 1.) As relevant to this case, SB 620 amends section 12022.5 to give discretion to the trial court to strike a firearm enhancement in the interest of justice. Section 12022.5 was amended by SB 620 to add the following language:
“(c) 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.” (Stats. 2017, ch. 682, § 1.)
Soto and the People agree that Soto’s judgment is not yet final and that SB 620’s amendment to section 12022.5 should apply retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Francis (1969) 71 Cal.2d 66, 75-76; People v. Brown (2012) 54 Cal.4th 314, 323.) At least two published appellate decisions have held Senate Bill 620 applies retroactively in cases where the judgment is not yet final. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
The People and Soto also agree that the matter should be remanded for the trial court to exercise its discretion under section 12022.5, subdivision (c). We therefore will remand the matter for the trial court to determine in the first instance whether to exercise its new statutory discretion to strike the firearm enhancements in this case under section 12022.5, subdivision (c). By remanding the matter, we do not find that the trial court must strike the enhancement, but only that the trial court shall consider whether to exercise its discretion pursuant to the newly enacted provisions of section 12022.5, subdivision (c).
DISPOSITION
The matter is remanded for the trial court to determine whether to exercise its discretion pursuant to section 12022.5, subdivision (c). In all other respects, the judgment is affirmed.