Filed 9/13/18 P. v. Thomas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli and W. Kent Hamlin, Judges.

Jean M. Marinovich, 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, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Keshawn Thomas appeals from convictions after a jury trial for attempted murder (Pen. Code,[1] §§ 664, 187, subd. (a); count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), and attempted robbery (§§ 664, 211; count 3). The jury found true the following additional allegations: defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a); count 1);[2] defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (d); counts 1 & 3); and defendant personally discharged a firearm (§ 12022.5, subd. (a); count 2). On April 13, 2016, the trial court sentenced defendant to prison for five years for attempted murder plus 25 years to life for the firearm enhancement. The court sentenced defendant to a term of 16 months on count 3 plus 25 years to life for the firearm enhancement, but made these sentences concurrent to count 1. The court imposed a term of three years on count 2, staying the sentence pursuant to section 654. The court did not sentence defendant for committing the great bodily injury.

On appeal, defendant contends there was insufficient evidence he committed assault with a semiautomatic firearm as alleged in count 2. Defendant further contends the trial court erred in failing to instruct the jury on the lesser included offense of assault with a firearm. Defendant argues the trial court erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We reject these contentions.

In supplemental briefing, defendant contends he is entitled to resentencing because Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620) was enacted authorizing sentencing courts to strike gun use enhancements beginning January 1, 2018. Although defendant was sentenced prior to the operative date of this legislation, the People concede it is retroactive. The People argue, however, that the trial court would not exercise its discretion differently and resentencing is not necessary. We disagree and will affirm the convictions but remand for the trial court to exercise its discretion to strike or to impose the firearm enhancement.

FACTS

Victim’s Account of Shooting

On September 26, 2014, at about 10:00 p.m., Mario D. had a couple of drinks in Clovis at the home of his friend, Miguel R. Miguel R. then drove them to a bar in Fresno where they had a few beers. Around 1:30 a.m. on September 27, 2014, they drove back to Miguel R.’s home. Mario D. planned to stay over and sleep on the couch. But after Miguel R. went to bed, Mario D. consumed cocaine and decided to hire a prostitute. Mario D. searched on the Internet at 3:00 a.m. and found an escort service. Mario D. contacted someone and the two agreed via text message to a 30-minute interlude in exchange for $100.

Erica J. arrived within an hour, and speaking to a man on the sidewalk wearing jeans and a black sweatshirt before she entered the house. Mario D. pointed to a $100 bill on the table then led her into the living room. Mario D. disrobed. Erica J. pulled out a condom, placed it on Mario D., and began performing oral sex. Feeling uncomfortable, Mario D. stopped her after a few minutes and retreated to the bathroom to collect himself and to decide how to ask her to leave. While in the bathroom, Mario D. heard the front door slam. When he exited the bathroom, Erica J. was gone along with his $100 bill. Mario D. looked out the front door and saw a white Mercedes speed away.

Mario D. quickly pulled on his pants and ran out the door without a shirt. He jumped into his Dodge pickup truck and began chasing the Mercedes to get his money back. Mario D. caught up to the Mercedes and flashed his lights at it. Mario D. followed the Mercedes into a parking lot where the two vehicles stopped. The driver, Dupree Evans, got out of the vehicle and asked Mario D. what he wanted.

Mario D. replied he wanted to know what was going on because the lady in the car had taken his “stuff.” As Mario D. talked to Evans, defendant, who was wearing a black hoodie, exited the passenger side of the Mercedes and approached Mario D.’s truck. Mario D. saw defendant holding a small black handgun, which was square-shaped. As defendant approached the truck, Mario D. heard what he described as the sound of the gun being cocked. Although Mario D. had never used a weapon before, he had heard the sound of a gun slide when he was in high school and the police gave demonstrations of guns, and he explained the cocking sound was like the sound of the slide.

Defendant stuck the gun inside of Mario D.’s truck and demanded he “give him all of [his] stuff.” As the gun was pointed at him, Mario D. could see someone walking behind his truck toward the driver’s side and decided to leave. Mario D. told defendant to take whatever he wanted and then shifted the transmission of his truck into drive. When Mario D. hit the accelerator pedal, he heard a pop and it felt like someone had punched him in his right arm. Mario D. drove away toward Miguel R.’s house. Mario D. saw bleeding from his arm and upper rib area.

Before he reached Miguel R.’s home, Mario D. crashed his truck into some cars and stopped in the yard of an apartment complex. Mario D. continued on foot to Miguel R.’s home. When he got to Miguel R.’s house, Mario D. told him what happened and asked to be taken to the hospital. As they drove, they saw emergency crews where Mario D. had crashed his truck. Mario D. told a police officer he had been shot and was transported by ambulance to the hospital. At the hospital, Mario D. had open heart surgery to remove a bullet lodged in his heart.

Heart Surgery

Heart surgeon Dr. Shamsuddin Khwaja performed open heart surgery on Mario D. at Fresno Community Regional Medical Center, a level one trauma center. Dr. Khwaja located a bullet in the pericardial cavity of Mario D.’s heart. The bullet entered the pericardium near the main vein that drains the blood from the lower body into the heart. The bullet was in the heart itself near the atrioventricular groove. The trajectory of the bullet was from the right shoulder or armpit area. After tracing the trajectory and determining the location of the bullet, Dr. Khwaja and the surgical team had to use a lot of manipulation to extract the bullet, more than just backing the bullet through its entry point. They did not have to stop the heart or place Mario D. on a heart-lung machine. Dr. Khwaja was concerned about the proximity of the bullet to the right coronary artery. Once the EKG and continuous heart monitor showed Mario D. was stable, the surgical team closed him up without additional procedures. The incision on Mario D.’s chest was six to seven inches long.

Eyewitness Testimony

On September 27, 2014, J.W. was in her white Mercedes with defendant, Erica J., and Evans. They were detained by the police. After all four occupants of the car were searched, they were allowed to leave. J.W. testified she did not know Erica J. was solicited for prostitution. J.W. did not see Erica J. with a $100 bill. J.W. also did not see a firearm in the car that evening and did not see defendant try to hide a firearm.

Late that evening, J.W. and the others dropped off Erica J. at a home in Clovis. Erica J. went into the home alone while everyone else stayed in the car. Erica J. eventually returned to the car and they left. Erica J.’s demeanor seemed normal when she returned to the car. As they drove away from the home, someone in the Mercedes noticed they were being followed by a truck driven by Mario D. Evans pulled into a parking lot and stopped, followed by Mario D. Evans exited the Mercedes and approached the truck to ask Mario D. why he was following them. Mario D. replied he was looking for the girl. Evans did not have a weapon; J.W. thought his conversation with Mario D. was calm, and Mario D. did not threaten anyone.

While Evans and Mario D. were talking, defendant began to fumble around in the Mercedes before exiting it. J.W. did not recall what happened after defendant exited the car. J.W. said she did not know if defendant had a gun and she did not see one that evening. J.W. did not remember later telling a detective she had seen a small black gun. She did remember telling a detective she heard defendant yelling at Mario D. and demanding he give defendant everything he had.

J.W. remembered hearing gunshots, but could not remember how many she heard. When she heard the gunshots, J.W., Erica J., and Evans were inside the car and defendant was outside of it. After the shots were fired, the tires of truck began screeching and the truck spun out of control. J.W. told the detective that when defendant reentered the Mercedes, he was bragging about shooting Mario D.

Evans testified he had initially been charged in the case and entered a plea of no contest to a charge of attempted robbery. Evans said he could not recall who was in the Mercedes with him the evening of September 27, 2014, and did not recall saying he was not the shooter. Evans explained he and J.W. jointly owned the Mercedes.

Pre-shooting Traffic Stop of Mercedes

Officer Benito Soto of the Fresno Police Department stopped a white Mercedes at 3:17 a.m. on September 27, 2014. There were two males and two females in the car. One female was White, the other three occupants, including defendant, were Black. Patdown searches were performed on defendant and the other occupants of the car and nothing was found. Soto described a patdown search as a limited search. No firearms were found during the searches. Soto cleared the call, meaning he was completely done with it, just after 4:00 a.m. Soto estimated he was actually finished with the call about 20 minutes earlier, but had to finish up his notes before he could clear the call.

Investigation of Shooting

Detective Christina Sterling of the Clovis Police Department photographed the parking lot where the shooting occurred and the apartment complex where Mario D. crashed his truck. Sterling recovered a cartridge casing from the ground of the parking lot. Additional cartridge casings and a bullet fragment were located inside Mario D.’s truck. There was a single bullet hole in the passenger side rear headrest.

The day of the shooting, Clovis Police Corporal Ken Wells went to Community Regional Medical Center to retrieve the bullet. Wells looked at the bullet but did not touch it. The bullet looked larger than .22-caliber and more like .25-caliber. Wells had been a firearm enthusiast most of his adult life. He had been a range master and firearms instructor for 10 years. Wells opined the bullet was .25-caliber ammunition.

Wells explained most .25-caliber firearms are subcompact, small semiautomatic handguns that work by pulling the trigger to fire the gun without other manipulation of the gun. To initialize the firing of the weapon, the operator must chamber the first round. After that, every time the trigger is pulled, the gun fires until it runs out of ammunition. Although there are some .25-caliber pistols not semiautomatic, these guns are exceptions and not the rule. Wells could not tell from the shell casing whether the gun firing it was semiautomatic. In general, .25-caliber ammunition is fired from a semiautomatic gun.

Clovis Police Department Detective Drew Mosher was the lead investigator and the primary detective in defendant’s case. During the course of the investigation, Mosher traveled to Arkansas to question Erica J., J.W., and Evans. Erica J. and J.W. voluntarily spoke to Mosher. An audio recording of Mosher’s discussion with J.W. was played for the jury.[3] J.W. told Mosher she did not know whether Evans or defendant pulled the trigger. J.W. explained Evans did not have a gun. When asked if defendant had a gun, J.W. replied she did not know him. J.W. denied prostituting Erica J. J.W. later denied Evans pulled the trigger.

Early during questioning, J.W. denied seeing a gun and said she heard only one shot fired the evening of the incident. J.W. confirmed she, Evans, Erica J., and defendant were riding that evening in the white Mercedes she jointly owned with Evans. During a subsequent conversation, J.W. explained Evans got out of the car to talk with Mario D. to determine why Mario D. was following them. Defendant was sitting in the front passenger seat while J.W. and Erica J. were sitting in the rear passenger seats. Mario D. told Evans he was following them because he was “looking for that girl.”

Defendant repeated “hold on” and “[w]here is it?” as he looked around in the car. J.W. guessed defendant was “looking for his gun.” Defendant got out of the car and the whole situation became aggressive. J.W. was not sure where defendant found the gun, whether it was on him or in the car. Defendant left the Mercedes and confronted Mario D., talking to him through the passenger window of Mario D.’s truck. Mario D. remained in his truck. Defendant told Mario D. to give him everything Mario D. had. Defendant fired the gun. J.W. thought defendant fired the gun twice. Mario D. started spinning his truck out of control. Neither J.W. nor Evans foresaw the shooting. When defendant got back to the car, he was bragging about shooting Mario D.

Moser later measured the bullet recovered from Mario D.’s heart and determined it was .25-caliber. The shell casings recovered were also consistent with .25-caliber bullets. Moser said he was able to determine the positioning of the vehicles in the parking lot where the shooting occurred. When asked if the empty shell casing was found resting to the side of or behind Mario D.’s vehicle, Moser replied, “Given what I know about the way casings fly, that would have meant nothing to me, so I didn’t pay any attention to it.” Moser further explained that casings can fly anywhere and can travel five feet. A senior investigator with the district attorney’s office questioned Evans and asked whether J.W. or Erica J. shot Mario D. Evans replied neither woman was the shooter. When asked if he or defendant was the shooter, Evans said the investigators “already knew the answer to that.”

DISCUSSION

I. Assault with a Semiautomatic Firearm

Introduction

Defendant contends there is insufficient evidence the firearm he used was semiautomatic. Defendant bases his argument in part on Corporal Wells’s testimony that although most .25-caliber firearms are small semiautomatic weapons, some pistols are .25-caliber. Defendant further contends that even if there was sufficient evidence he used a semiautomatic firearm, the trial court failed in its sua sponte duty to instruct the jury on the lesser included offense of assault with a firearm. We reject these contentions.

Evidence of Semiautomatic Firearm

When a defendant challenges the sufficiency of the evidence, appellate courts must review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. This standard of appellate review is the same in cases in which the People primarily rely on circumstantial evidence. Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury and not the reviewing court that weighs the evidence, resolves conflicting inferences, and determines whether the People have met the burden of establishing guilt beyond a reasonable doubt. If the trier of fact’s findings are reasonably justified under the circumstances, the opinion of the reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Casares (2016) 62 Cal.4th 808, 823–824.) After reviewing the evidence in the light most favorable to the prosecution, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rangel (2016) 62 Cal.4th 1192, 1212–1213.)

Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) An appellate court must accept logical inferences the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear there was no hypothesis whatever upon which there was substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

A semiautomatic firearm assault cannot be committed without also committing a firearm assault. Firearm assault is, therefore, a lesser included offense of semiautomatic firearm assault. (People v. Martinez (2012) 208 Cal.App.4th 197, 199.) Section 17140 defines a semiautomatic firearm as “a pistol with an operating mode that uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger.” The jury was instructed with CALCRIM No. 875 which sets forth the elements of section 245, subdivision (b) and defines a semiautomatic firearm as follows: “A semi-automatic firearm extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger.”

Investigators found a shell casing in Mario D.’s truck and on the ground in the parking lot where the truck was earlier parked. Detective Moser testified the bullet removed from Mario D.’s heart was .25-caliber. Corporal Wells testified the shell casings found in the truck and the scene of the shooting were consistent with .25-caliber ammunition. Mario D. described the gun defendant was holding as a small, dark, square-shaped gun. Mario D. said that as defendant approached his truck he cocked the gun. Mario D. later elaborated the cocking sound was of a gun slide pulled back, and he had seen and heard a police demonstration of this when he was a high school student.

Wells explained most .25-caliber firearms are subcompact, small semiautomatic handguns that work by pulling the trigger to fire the gun without other manipulation of the gun. To initialize the firing of the weapon, the operator must chamber the first round. Every time the trigger is pulled after that, the gun fires until it runs out of ammunition. Although there are some .25-caliber pistols not semiautomatic, these guns are exceptions and not the rule. Wells’s description of the majority of .25-caliber firearms matched Mario D.’s description of the gun he saw defendant holding. Moser testified ejected shell casings can fly anywhere, up to five feet, from where the gun is fired.

The jury was instructed that it had to find that the firearm “extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger.” There was substantial evidence before the jury that the two retrieved cartridge casings had been extracted from the chamber of a gun. Although neither Moser nor Wells expressly stated that semiautomatic firearms extract a cartridge, this fact is easily inferred from the physical evidence found by investigators. Moser testified that ejected bullets “fly” up to five feet from the place the gun is fired. Wells described to the jury that once a bullet is chambered in a semiautomatic firearm, each pull of the trigger reloads a new cartridge with subsequent pulls of the trigger until the gun runs out of ammunition. Semiautomatic firearms extract fired cartridges from the chamber of the gun and automatically chamber a fresh cartridge with each pull of the trigger. There was substantial evidence before the jury that the gun defendant fired extracted cartridges and fired with each pull of the trigger.

Defendant notes the prosecutor argued in closing argument that Wells testified .25-caliber bullets were “universally” from semiautomatic guns and Mario D. heard a racking of the gun. Although the prosecutor overstated that .25-caliber bullets are universally from semiautomatic guns, Wells testified that most .25-caliber firearms were semiautomatic and other nonautomatic pistols were the exception, and the jury was instructed with CALCRIM No. 104 that the arguments of counsel are not evidence. Mario D. did not use the word “racking” in his testimony, but he explained that by cocking the gun he meant he heard a sliding sound similar to the sound made during a gun demonstration by the police for his high school. In this context, the terms racking and sliding are synonymous and any reasonable juror would understand them to mean the same thing.

Defendant further notes his counsel at trial argued the only evidence of the type of gun from the victim was that it was small and black. Defense counsel added that this was insufficient for the jury to know what type of gun was used and the prosecutor did not rebut defense counsel’s point. As explained, there was substantial other evidence, including the fact there were two expelled cartridge casings, in addition to Mario D.’s description of the gun. Defendant ignores the other evidence supporting his conviction for assault with a semiautomatic firearm.

The definition of semiautomatic firearm given to the jury required it to find the gun used by defendant extracted cartridges from the chamber of the gun and reloaded a new cartridge into the chamber. The evidence before the jury established two obviously ejected cartridges were found: one in Mario D.’s truck and the other at the scene of the shooting. Also, Mario D.’s description of the gun defendant was holding matched Wells’s description of the typical .25-caliber semiautomatic firearm. There was substantial evidence to support the jury’s finding that defendant used a semiautomatic firearm pursuant to section 245, subdivision (b).

II. Lesser Included Instruction

Defendant further contends the trial court failed to give a lesser included instruction on assault with a firearm. As noted above, assault with a firearm is a lesser included offense of assault with a semiautomatic firearm. (People v. Martinez, supra, 208 Cal.App.4th at p. 199.) We reject this contention.

Prior to instructing the jury, the trial court made the following observations to counsel outside the presence of the jury. On the question of whether the firearm involved was not a semiautomatic weapon, the court noted the jury may have a theoretical question. The court, however, rejected this point because there was testimony about how semiautomatic guns eject shell casings and most .25-caliber firearms are almost universally semiautomatic weapons. The court concluded that if the jury found there was an assault with a firearm, it would necessarily conclude it was a semiautomatic firearm.

The trial court overstated Wells’s testimony by describing most .25-caliber as “almost universally” semiautomatic; Wells did state most .25-caliber firearms are semiautomatic. Although no witness expressly described a semiautomatic firearm as extracting a cartridge, the only physical evidence before the jury was of extracted cartridges. The jury was also correctly instructed on the definition of what it had to find in order to determine defendant used a semiautomatic firearm. On review, we presume jurors are intelligent, capable of understanding instructions, and applying them to the evidence presented at trial. (People v. Johnson (2015) 61 Cal.4th 734, 770; People v. Lewis (2001) 26 Cal.4th 334, 390.)

The only evidence warranting an instruction on the lesser included offense was Wells’s testimony there were some .25-caliber pistols that were not semiautomatic. The evidence supporting the weapon being semiautomatic included Mario D.’s description of a small square-shaped gun matching Wells’s testimony that .25-caliber semiautomatic guns are all small and compact; Mario D.’s definition of “cocking” as a sliding sound like he heard in high school during the police demonstration; the expelled shell casings retrieved by investigators; the matching caliber of the bullet in defendant’s heart and the expelled casings; Wells’s explanation that semiautomatic handguns work by repeatedly pulling the trigger to fire the gun without other manipulation of the gun; Wells’s explanation that to initialize the firing of the weapon, the operator must chamber the first round and after that every time the trigger is pulled the gun fires until it runs out of ammunition; most .25-caliber guns are semiautomatic; and Moser’s explanation that spent cartridges can “fly” up to five feet from where they are fired.

We do not find sufficient evidence in the record to support a sua sponte duty by the trial court to give an instruction on the lesser included offense of assault with a firearm. (See People v. Miceli (2002) 104 Cal.App.4th 256, 268.) If Wells’s testimony concerning the small number of .25-caliber guns that are not semiautomatic was enough to trigger a sua sponte duty by the trial court to give the lesser included instruction, the failure to give the instruction was harmless under the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Banks (2014) 59 Cal.4th 1113, 1161 [degree of prejudice for failing to instruct the jury on a lesser included offense is subject to review under Watson], overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)

III. Failure to Conduct Marsden Hearing

Defendant contends the probation officer reported defendant complained his trial counsel was ineffective. Defendant argues the trial court had a duty under Marsden to conduct a hearing prior to sentencing him to determine whether he was entitled to appointment of new counsel to investigate defendant’s assertion. We reject this contention.

Although defendant failed to submit a written statement to the probation officer, he verbally complained he had the right to be properly represented, he was not, and added he had been through 12 attorneys in a year and a half. Defendant further complained he showed up to court twice and had no attorneys. Defendant claimed his attorney filed a conflict when defendant refused a plea bargain of 17 years.[4] Defendant also claimed his attorney made him waive certain rights and did not explain what those rights were. Defendant protested he was innocent “and nobody represented me right.”

The original sentencing hearing was continued because the probation department sent its report to the wrong address and defense counsel did not have it. At the sentencing hearing, neither defense counsel nor defendant sought to have a Marsden hearing, and defendant did not register any dissatisfaction with his counsel. The court gave defendant the opportunity to address the court but defendant apparently declined to say anything.

The California Supreme Court has found third parties are unlikely to have complete information concerning the attorney-client relationship and ordinarily lack a reliable basis upon which to allege ineffective assistance of counsel. There is no duty for a trial court to entertain Marsden motions made by third parties because even incarcerated defendants can speak for themselves in various ways. Furthermore, a trial court does not have the duty to raise Marsden on its own motion.[5] Such motions must be raised after some indication by the defendant or defense counsel. (People v. Martinez (2009) 47 Cal.4th 399, 419–421.)

Citing People v. Sanchez (2011) 53 Cal.4th 80, 90–92, defendant argues the trial court’s duty to hold a Marsden hearing is triggered by a request for substitute counsel at any time during the criminal proceedings, and also when a defendant asserts his or her counsel is providing ineffective assistance. Sanchez, however, reaffirmed earlier rulings requiring some clear indication by a defendant, either personally or through counsel, that the defendant seeks substitute counsel. (Id. at pp. 89–90, citing People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) The Sanchez decision emphasized this point by disapproving earlier decisions from this court holding a Marsden motion can be triggered with something less than a clear indication by a defendant, either personally or through counsel, that he or she wants substitute counsel. (Sanchez, supra, at p. 90, fn. 3, disapproving People v. Eastman (2007) 146 Cal.App.4th 688; People v. Mejia (2008) 159 Cal.App.4th 1081; People v. Mendez (2008) 161 Cal.App.4th 1362.)

Even after being given the opportunity at the sentencing hearing to make a statement, defendant failed to make a Marsden motion or to complain about his trial counsel’s representation. Neither defendant nor his trial counsel asserted defendant was dissatisfied with his representation or sought different counsel. Defendant’s statements to the probation officer effectively made the probation officer a third party potentially expressing a Marsden claim by defendant. As a third party, the probation officer cannot be the messenger of a Marsden claim by a defendant who did not even expressly demand new counsel. Defendant’s statements to the probation officer, by themselves, do not impose a duty on the trial court itself to raise Marsden on its own motion because defendant failed to pursue any claim for substitute counsel. This is especially true where, as happened here, the trial court offered defendant the opportunity to speak during sentencing and defendant remained quiet, saying nothing. Abandonment of a Marsden request has been found where the defendant fails to raise the issue at subsequent hearings. (See People v. Vera (2004) 122 Cal.App.4th 970, 976–977; People v. Harrison (2001) 92 Cal.App.4th 780, 790; People v. Lloyd (1992) 4 Cal.App.4th 724, 731–732.)

There is an additional problem with defendant’s contention on appeal. Defendant made several general assertions about his counsel to the probation officer. One was that he had been represented by several different attorneys. He also asserted he was forced by counsel to waive his rights without specifying what rights he waived or which counsel told him to waive his rights. It is unclear defendant’s assertions even applied to his current trial counsel, except for his protest that he was innocent “and nobody represented me right.” Defendant’s entire statement in the probation officer’s report reads more like a rant about being convicted than a complaint about the adequacy of counsel’s representation.

Defendant’s request for different counsel must be clear, unequivocal, and come from him or his counsel. (People v. Sanchez, supra, 53 Cal.4th at pp. 89–91.) Defendant failed, personally or through his attorney, to make a clear and unequivocal request for new counsel. The trial court did not err in failing to conduct a Marsden hearing based on defendant’s hearsay comments to the probation officer.

IV. Senate Bill 620

The parties filed supplemental briefing addressing the effect of Senate Bill 620 on defendant’s sentence. On October 11, 2017, the Governor approved Senate Bill 620, effective January 1, 2018, which amended sections 12022.5 and 12022.53 to give the trial court discretion to strike or dismiss a firearm enhancement. Previously, the trial court had no discretion to strike or dismiss such enhancements and they had to be imposed by law. Both parties agree this statutory amendment is retroactive to all cases not yet final because its effect mitigates punishment for a particular criminal offense. (See People v. Brown (2012) 54 Cal.4th 314, 324; People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Francis (1969) 71 Cal.2d 66, 75–76.) The People argue, however, the trial court would not change its ruling on whether to strike the firearm enhancement or change defendant’s sentence. We find the trial court’s statements at sentencing more ambiguous than do the People and therefore remand the matter for a new sentencing hearing.

In sentencing defendant, the trial court stated during its tentative ruling that it had no discretion with respect to the section 12022.53, subdivision (d) firearm enhancement. The court noted it was a miracle the victim did not die and if he had, defendant’s possible sentence was life without the possibility of parole because of the firearm enhancement. The court expressed bewilderment at how people can go out on the street with guns and shoot others and not expect to go to prison for the rest of their natural life.

The court added: “It’s a tragic waste of human potential. The Legislature and the voters have made a determination, and I can’t necessarily disagree with them, and this is an example of why. Just a moment’s poor judgment could lead to someone’s death.” The court observed that a term of 30 or 32 years in custody with 85 percent custody before parole eligibility was a terrible waste, “but I don’t have any discretion in that respect, and frankly there’s a good reason. Guns are dangerous. People die. Over what? Couple hundred bucks in his wallet? A truck that isn’t worth much or isn’t even his? What is the point in all that?” In reviewing defendant’s prior convictions, the court found they were not numerous or of increasing seriousness. Defendant had misdemeanor convictions with some more serious crimes as a juvenile but those were behind him.

The court noted there was some degree of provocation by the victim, warranting the mitigated term. The court stated this was “the best I can do for him.” The court selected the mitigated term of five years on count 1, enhanced by 25 years to life for the section 12022.53, subdivision (d) enhancement for personally using a firearm causing great bodily injury. The court imposed the low term on count 2 for assault with a semiautomatic firearm, which was stayed pursuant to section 654, and the low term on count 3 for attempted robbery which the court ordered to be served concurrently with count 1.

The trial court’s comments concerning defendant’s use of a gun would certainly support imposition of the gun enhancement if the court knew it had the discretion not to impose it. At the time of sentencing, Senate Bill 620 was not the law and the trial court correctly stated it had no discretion but had to impose the term of 25 years to life. The court imposed the low term on all three counts, staying count 2 pursuant to section 654 and making count 3 a concurrent sentence. The court stated it was a waste to sentence a defendant to prison for 30 years. This record is, at best, ambiguous as to whether the trial court would have exercised its discretion to strike the gun enhancement. Furthermore, there is the possibility the trial court, in exercising its discretion, could fashion a different sentence than the one it imposed by striking the gun enhancement, imposing longer sentences on other counts, and imposing the great bodily injury enhancement.

From the trial court’s comments at sentencing, we cannot say with certainty it would necessarily have imposed the enhancement had it foreseen a change in the law granting it discretion not to do so. (See People v. Lua (2017) 10 Cal.App.5th 1004, 1021.) This case is also distinguishable from People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, where the trial court clearly stated it did not find any good cause to strike a prior conviction allegation and had many reasons not to, concluding the defendant was the kind of person the law intended to keep off the street as long as possible. We therefore reject the People’s argument the record is clear the trial court would not exercise its discretion to strike any firearm enhancement and a remand for resentencing would serve no purpose.

DISPOSITION

Defendant’s sentence is vacated and the case is remanded for the trial court to conduct a new sentencing hearing in order to exercise its discretion to strike or to impose the section 12022.53, subdivision (d) gun use enhancement pursuant to Senate Bill 620. Defendant’s convictions are affirmed.

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PEÑA, J.

WE CONCUR:

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HILL, P.J.

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DESANTOS, J.