Filed 3/21/18 P. v. Wallace CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
BRANDON WALLACE,
Defendant and Appellant.

A150172

(Alameda County
Super. Ct. No. 170665A)


In October of 2010, Larry Belle and Gary Ferguson were shot multiple times by two gunmen as they stood talking outside of a barbershop in Berkeley. Appellant Brandon Wallace (Wallace) and his codefendant Coleon Carroll (Carroll) were ultimately charged with murder and attempted murder in connection with the shooting. Carroll pled no contest to voluntary manslaughter, but Wallace went to trial and a jury found him guilty as charged. Wallace then moved for a new trial on the grounds of newly discovered evidence in the form of Carroll’s testimony that it was Carroll’s cousin Jermaine Davis (Davis), and not Wallace, who was with him on the day of the shooting. The trial court denied the motion, finding Carroll’s testimony not credible. On appeal, Wallace contends that the trial court erred in not granting him a longer continuance before trial to investigate a police report allegedly showing that Davis had access to the getaway vehicle, that he should have been granted a new trial based on Carroll’s testimony, and that he is entitled to resentencing because legislation passed while his appeal was pending gives the trial court discretion to strike the firearm enhancements that were applied to his sentence. We will remand for a new sentencing hearing, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Background of the Offense
Shortly after 8:30 a.m. on October 26, 2010, Larry Belle and his friend Gary Ferguson were talking on the sidewalk outside the barbershop where Belle worked on Sacramento Street in Berkeley. Two men approached along the sidewalk, drew guns, and fired multiple shots at Belle and Ferguson. Both victims were hit multiple times and were taken to Highland Hospital in Oakland. Ferguson died of his wounds. Belle eventually recovered, but only after spending a month in the hospital and undergoing several surgeries. Shortly after the gunshots, an eyewitness saw two men hurry into a silver PT Cruiser and leave the area.
A surveillance camera outside the barbershop captured video of the shooting. Officer David Marble of the Berkeley police department reviewed video of the shooting at the scene and concluded that during the incident one of the gunmen had accidentally shot the other in the back of the left leg. The Berkeley police department alerted local hospitals to look for patients who had recently been shot in the back of the left leg.
At 9:50 a.m. that morning, Wallace was admitted to Kaiser Medical Center in Richmond and treated for a gunshot wound to his left leg. Officer Marble was notified of Wallace’s admission and went to the hospital. When asked about his gunshot wounds, Wallace told Officer Marble that he had been shot in an attempted robbery near the Richmond BART station earlier that morning. Wallace agreed to give a DNA sample and to have a test performed on his hands for gunshot residue, which came back negative.
Early the next morning, police executed a search warrant at Carroll’s Antioch residence. In the driveway, officers observed a silver PT Cruiser with what appeared to be a bloodstain on the front passenger seat. The officers removed the seat pad, which was also bloodstained. DNA testing was ultimately performed on the blood, which matched Wallace’s DNA sample.
On January 29, 2013, Wallace and Carroll were charged by information with the murder of Ferguson (Pen. Code, § 187, subd. (a)) (count 1) and the attempted murder of Belle (Pen. Code, §§ 187, subd. (a), 664) (count 2). Wallace was also charged with possession of a firearm by a felon (Pen. Code, § 12021, subd. (e)) (count 3). The information alleged that Wallace personally discharged a firearm causing great bodily injury or death in connection with counts 1 and 2 (Pen. Code, §12022.53, subd. (d)) and that he had a prior conviction for second degree robbery (Pen. Code, §§ 211, 667, subd. (e)(1)). A trial date was eventually set for February 17, 2016.
2. Motion for a Continuance
On February 16, 2016, Wallace’s counsel moved for a continuance of at least 21 days on the grounds that the prosecution had recently made a disclosure of potentially exonerating evidence. In particular, counsel stated that six days earlier, on February 11, the prosecution had disclosed a police report revealing that approximately a month after the shooting, on November 26, 2010, Davis (and two other suspects) had shot Ramiro Morales from the same silver PT Cruiser at issue in this case. Davis and Justin Johnson had ultimately been convicted of crimes arising out of the drive-by shooting of Morales, and Wallace’s counsel further alleged that Davis had an appearance similar to Wallace’s in that both men were “dark skin African American males around the same age, height, physical build, and hair style.” Wallace’s counsel sought the continuance in order to further investigate the November 26 incident and to locate any other police reports involving the PT Cruiser. The master calendar judge denied Wallace’s continuance motion without prejudice and transferred the matter for trial.
On February 22, 2016, Carroll entered a plea of no contest to the lesser included offense of voluntary manslaughter (Pen. Code, § 192, subd. (a)) and to the vicarious arming clause (Pen. Code, § 12022, subd. (a)(1)) in connection with count 1, pursuant to a plea agreement for a sentence of 12 years. Sentencing was scheduled for March 21, 2016. Later that same day, a hearing was held in Wallace’s case. At the outset, the trial court stated that it would continue the proceedings until February 25 “largely because of [defense counsel]’s request that she has some things that she needs to be working on right now that relate to some late information she’s obtained from the district attorney’s office.”
At the hearing on February 25, Wallace again sought a continuance, this time on the grounds that he and his family had raised money to retain a private attorney. The trial court denied the motion, but noted that it would reconsider if the private attorney were to appear in court that afternoon and confirm that she would represent Wallace and soon be ready for trial. Later on, in discussing a request to exclude evidence of third party culpability, defense counsel indicated that she was “provided with evidence that forms the basis of a possible third party culpability defense on February 11, 2016, and I’m still trying to determine whether or not that’s a viable defense in this case.” There appears to be no further mention of the requested continuance or the evidence of third party culpability in the record. Trial began with opening statements on March 7, 2016.
3. The Prosecution’s Case
i. Maria Delatorre-Hernandez
Maria Delatorre-Hernandez was an employee of a laundromat located near the barbershop on Sacramento Street. On the morning of October 26, 2010, Delatorre was at work when she heard loud noises and ran to the front of the laundromat. She saw two men running down the street, including a young Black man with long braided hair who was carrying a pistol. Delatorre identified Wallace as the man with the gun in a photo lineup after the incident, and again in the courtroom.
ii. Adrian Fierro
On October 26, 2010, Adrian Fierro was in the kitchen of his ground floor apartment on Stanton Street near the barbershop when he heard a series of banging sounds. Out his kitchen window, he saw a silver PT Cruiser pull up in front of the building and stop in the middle of the street. Fierro saw two young African American men run down the alley between Sacramento and Stanton and get into the PT Cruiser, which then sped off.
iii. Annikka McAllister
Annikka McAllister was Carroll’s girlfriend in October of 2010. On the night of October 25, 2010, she drove to Corte Madera in her silver PT Cruiser and checked into a motel. Carroll and Wallace arrived in Carroll’s blue Jaguar later on and spent the night in McAllister’s motel room. The next morning, Carroll drove McAllister to a medical appointment in San Francisco where she checked in at 7:50 a.m. Wallace drove away from the motel in the other car. Around 12:50 p.m., Carroll picked McAllister up from the appointment in the PT Cruiser and drove her to the BART station in Oakland, where Carroll got out and his mother got in. Carroll’s mother then drove McAllister to Carroll’s residence in Antioch. McAllister rode in the front passenger seat and did not notice any stains on it.
iv. Officer Lindenau
Berkeley police officer David Lindenau testified that at some point before the incident, as part of an unrelated investigation, a GPS tracking device was hidden on McAllister’s silver PT Cruiser and programmed to report its location once each hour. According to the device’s records, on October 26, 2010 at 4:15 a.m., 5:15 a.m., and 6:15 a.m., the PT Cruiser was on the 1500 block of Casa Buena Drive in Corte Madera. At 7:15 a.m., the PT Cruiser was on the Golden Gate Bridge. At 8:15 a.m., it was at 3224 Sacramento Street in Berkeley, five or six blocks from the barbershop. At 9:14 a.m. it was near the intersection of Highway 680 and Highway 4 in Concord. At 10:15 a.m., it was on the MacArthur freeway in Oakland. At 1:15 p.m. it was on the 800 block of O’Farrell Street in San Francisco. At 2:39 p.m., it was on San Leandro Street in Oakland. Around 9:00 p.m., it was on Dimaggio Way in Antioch.
v. Officer Marble
Berkeley police officer David Marble was called to the scene of the shooting and arrived at 8:55 a.m. The police located 21 shell casings at the scene, corresponding to two different guns. Officer Marble watched the surveillance video from the barbershop at the scene and concluded that during the shooting, one of the gunmen had shot the other in the back of the left leg. Officer Marble was informed that at 9:50 a.m. that morning, Wallace had been admitted to Kaiser Hospital in Richmond under the name Taurus Livingston with a gunshot wound to his left leg. Officer Marble visited Wallace in the hospital. Wallace agreed to provide a DNA sample and to have his hands tested for gunshot residue, a test which ultimately came back negative.
In the early morning of October 27, police executed a search warrant at Carroll’s residence in Antioch. A silver PT Cruiser was parked in the driveway, with what appeared to be a bloodstain on the front passenger seat. Officers removed the right front passenger seat cover and cushion. The blood stain on the cushion was tested and found to match Wallace’s DNA sample.
4. The Defense Case
Wallace testified in his own defense as follows. In October of 2010, he was living at home in Pittsburg with his parents and attending school at Los Medanos Community College. On October 26, he did not have any classes, and he made plans to meet a woman named Miesha in Richmond. Wallace took BART to Richmond and asked for directions to the corner of 16th and Macdonald, where he had agreed to meet Miesha. When he arrived at the corner, he was approached by a man who asked him for change. As he dug into his pocket, he saw the man reach for a gun, so he turned around and ran away. As he ran, he heard gunshots, and when he reached the next corner, he realized that he had been shot. He was able to flag down a blue van driven by two men, who took him to the hospital in Richmond. Wallace checked into the hospital under the name Taurus Livingston, because he had an outstanding juvenile warrant.
At the hospital, Wallace was visited first by the Richmond police, and then by Officer Marble and a partner. Wallace told them that he had been shot in an attempted robbery outside the Richmond BART station. The officers asked Wallace to provide a gunshot residue sample from his hands, as well as a DNA sample. Wallace agreed.
Wallace also testified that about three weeks before October 26, 2010, he and Carroll had gone to a club called Impala’s in San Francisco where he got into a fight, resulting in a bloody nose and one of his teeth going through his lip. He testified that he was bleeding badly and that he left the club in the front passenger seat of the PT Cruiser.
5. The Verdict and Sentence
On March 21, 2016, the jury found Wallace guilty as charged on all three counts, and found the firearm allegations true in connection with counts 1 and 2. The trial court sentenced Wallace to 25 years to life on count 1, doubled because of his previous robbery conviction and with a firearm enhancement of 25 to life, for a total sentence of 75 to life on count 1. On count 2, the trial court sentenced Wallace to nine years, again doubled because of his previous strike, with a firearm enhancement of 25 to life, for a total sentence of 43 to life, to run consecutively to the sentence on count 1. The trial court sentenced Wallace to three years on count 3, to run concurrently with his sentence on counts 1 and 2, for a total sentence of 118 years to life.
6. Motion for a New Trial
On the same day as his sentencing, Wallace moved for a new trial on the grounds of newly discovered evidence in the form of Carroll’s testimony. Wallace’s counsel alleged that she had been contacted by Carroll shortly after the jury’s verdict, and a defense investigator spoke with him on June 2, 2016. Carroll was prepared to testify that Wallace was not in Berkeley the day of the shooting, but that instead he had picked up Davis in the PT Cruiser on the day of the incident. Davis had been killed in an unrelated homicide in 2013. Davis, like Wallace, was a tall, young, dark-skinned African American man with dreadlocks, and Carroll indicated that they were often confused for one another. Carroll was also prepared to testify that it was Davis, and not Wallace, who rode in the front seat of the PT Cruiser as Carroll drove the PT Cruiser away from the barbershop after the shooting. Wallace alleged that this testimony was “newly discovered” because Carroll did not testify or give a statement in any pretrial proceedings, was represented at all times by counsel, and had a Fifth Amendment right not to testify until he was sentenced on March 21, 2016, the same day that the jury returned its verdict in Wallace’s case.
A hearing was held on the motion on December 1, 2016, at which Carroll testified. According to Carroll, he drove to McAllister’s hotel in Corte Madera with Davis in his Jaguar, and on the morning of October 26 he drove McAllister to her appointment in the Jaguar while Davis drove the PT Cruiser. After dropping off McAllister, Carroll drove to Oakland and was picked up by Davis in the PT Cruiser, and they then drove to Berkeley where they picked up a third passenger whom Carroll declined to name. Carroll testified that one of his passengers told him to “pull over real quick” and that Davis and the other man then exited the car. Soon afterwards, Carroll heard gunshots and started to drive away, when Davis and the other man came running back to the car and got in. Carroll then drove the PT Cruiser back to his Jaguar, and left Davis and the other man behind in the PT Cruiser.
The trial court found that Carroll’s testimony was material, and that Wallace could not, with reasonable diligence, have discovered and produced it at trial because Carroll was a charged defendant until the date of his sentencing. However, the trial court found that if a new trial was granted, and Carroll’s testimony were presented at trial, there was not a reasonable probability of a different outcome. The trial court noted several inconsistencies between Carroll’s testimony at the hearing and the statement he gave to the defense investigator, and concluded that Carroll was not “credible at all.” The trial court concluded that “the combination of his total lack of credibility and the strength of the People’s evidence during the trial, lead me to the inescapable conclusion that there’s no reasonable possibility in my mind that a different result would be produced as a result of Mr. Carroll testifying. And on that ground, the motion for a new trial is denied.” Wallace was then sentenced as described above to a total term of 118 years to life. This appeal followed.
DISCUSSION
On appeal, Wallace argues that (1) the trial court should have granted him a longer continuance to investigate the November 2010 police report; (2) the trial court erred in denying his motion for a new trial; and (3) that Senate Bill No. 620, which was enacted while this appeal was pending and which grants trial courts discretion to strike the firearm enhancements that were applied to his sentence, applies retroactively such that we should remand to permit the trial court to exercise that discretion in resentencing him.
1. The Trial Court Did Not Err in Failing to Grant a Longer Continuance
In his opening brief, Wallace argues that the prosecution violated its duty under Penal Code section 1054.1, subdivision (e) and Brady v. Maryland (1963) 373 U.S. 83 to disclose exculpatory evidence in the form of the November 26, 2010 police report at least 30 days before trial. On reply, Wallace appears to concede that the prosecutor disclosed the report as soon as he obtained it, and thus did not violate any duty of disclosure. (See Pen. Code, § 1054.7 [if material becomes known to a party within 30 days of trial “disclosure shall be made immediately”].) However, Wallace argues that the trial court erred in denying Wallace’s counsel a sufficient continuance to investigate the potential evidence of third party culpability.
“[T]he trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial.” (People v. Jenkins (2000) 22 Cal.4th 900, 1037; see Pen. Code, § 1050, subd. (e).) The trial court’s exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
We find no abuse of discretion here. As noted above, after defense counsel’s request for a 21-day continuance was denied without prejudice by the master calendar judge, the trial court granted a three-day continuance (from Monday, February 22 to Thursday, February 25) in order to permit defense counsel extra time to investigate the recently disclosed police report. Defense counsel does not appear to have objected on the record to the length of that continuance, or to otherwise have indicated to the trial court that the time given was insufficient to conduct the proposed investigation. In fact, on February 25, defense counsel stated that she was “provided with evidence that forms the basis of a possible third party culpability defense on February 11, 2016, and I’m still trying to determine whether or not that’s a viable defense in this case.” At no time did defense counsel renew her request for a continuance, or otherwise indicate to the trial court that more time was needed to complete her investigation. In addition, over four weeks ultimately elapsed between the disclosure of the police report on February 11 and the beginning of the defense case on March 14, over a week longer than the originally requested 21 days. Under these circumstances, we find no abuse of discretion.
2. The Trial Court Did Not Err in Denying the Motion for a New Trial
Wallace argues that the trial court erred in denying his motion for a new trial, because Carroll’s testimony was newly discovered exculpatory evidence that should have been presented to the jury on retrial. We disagree.
“To entitle a party to a new trial on the ground of newly discovered evidence, it must appear,—‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.’ [Citation.]” (People v. Sutton (1887) 73 Cal.243, 247–248; see People v. Delgado (1993) 5 Cal.4th 312, 328.)
Motions for a new trial “are addressed to the discretion of the court below, and the action of the court below will not be disturbed except for an abuse of discretion.” (People v. Sutton, supra, 73 Cal.243 at p. 248; see People v. Delgado, supra, 5 Cal.4th at p. 328 [trial court’s decision will not be disturbed unless “a manifest and unmistakable abuse of discretion clearly appears”].) “In addition, ‘the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.’ [Citation.]” (Id. at p. 329.) “ ‘[W]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.’ [Citation.]” (People v. Verdugo (2010) 50 Cal.4th 263, 308.)
As noted, the trial court denied the motion on the ground that Carroll’s testimony would not render a different result probable on retrial, both because it found that Carroll lacked credibility and because it concluded that the other evidence against Wallace was strong. With respect to the trial court’s determination that Carroll lacked credibility, we find no abuse of discretion. As the trial court noted, Carroll’s testimony at the hearing was inconsistent with the statement he gave to the defense investigator in certain material respects. Most critically, Carroll told the investigator that there were two people in the PT Cruiser (in addition to Davis) when Davis picked him up in West Oakland, but he testified at the hearing that Davis picked him up alone, and that they then picked up only one additional passenger. When confronted on cross-examination with this inconsistency, Carroll denied having told the investigator that there were two additional people in the car. However, the defense investigator also testified for the prosecution at the hearing that Carroll had indeed told her that there were two additional people in the car, as her report on the conversation reflected.
Carroll also testified evasively about the third unidentified passenger. The defense investigator’s report stated that “Coleon states there were two other people in the cruiser aside from Jermaine, but he does not wish to state their names.” The investigator further testified that she asked him for the names, and received a response along the lines of, “I don’t want to say.” On cross-examination, the following exchange took place:
“Q. [by the prosecutor]: Who was the other guy?
“A. I can’t say that.
“Q. But you know who he is, right?
“A. No.
“Q. Why can’t you say?
“A. I mean, I’m not sure. Like, I have family out there and stuff. Like, I don’t know who he is. I don’t know his name to say exactly who he is, and like, I just don’t know.”
Carroll also testified that he didn’t “know anything about him,” but also that he had “probably” seen him before, “hanging around a lot of people, but I don’t know him.” We find no abuse in the trial court’s conclusion that this testimony reflected poorly on Carroll’s credibility.
Carroll’s credibility was also called into question by other aspects of his testimony. He denied having committed a 2007 robbery to which he had pled no contest, and claimed that he had been given the stolen property from that robbery by “someone else.” Similarly, Carroll testified that despite having just admitted that he drove Davis and another man to the vicinity of the barbershop around the time of the incident, heard multiple gunshots, and then drove Davis and his companion out of the area, he did not have anything to do with the shooting and pled no contest to voluntary manslaughter in connection with the incident because he did not want to “chance my life . . . for something I didn’t do.” Given all the above, we cannot say that the trial court abused its discretion in finding that Carroll was “not credible at all.” (See People v. Shoals (1992) 8 Cal.App.4th 475, 488 [“ ‘It is not uncommon, after trial, for one not charged with a crime to attempt to absolve his fellow confederate who has been convicted. [Citation.] The trial court was not bound to accept the statement of [the witness] as true. [Citation.] It was entitled to regard it with distrust and disfavor. [Citations.]’ ”].)
We also find no abuse of discretion in the trial court’s conclusion that a different result was not probable on retrial in part because of the strength of the evidence against Wallace. According to Office Marble’s review of the surveillance video, which was also shown to the jury, one of the gunmen shot the other in the back of the left leg during the incident. There was no real dispute at trial that both gunmen then fled the scene in the silver PT Cruiser. Approximately an hour later, Wallace was admitted to a nearby hospital with a gunshot wound to his left leg, and his blood was ultimately found in the seat cushion of the front passenger seat of the PT Cruiser, as the trial observed, “right where the left thigh would be in the car.” This was the strongest evidence against Wallace, and Carroll’s testimony did not contradict it, but rather offered the alternative explanation that Wallace’s blood penetrated through to the seat cushion because of a nosebleed he sustained after a fight, an explanation the trial court did not find to be credible. (See People v. Martinez (1984) 36 Cal.3d 816, 823 [“[A] motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant”].) In sum, given the “considerable deference” we afford the trial court in determining whether a different result is probable on retrial “ ‘because of “his observation of the witnesses, [and] his superior opportunity to get ‘the feel of the case,’ ” ’ we find no abuse of discretion in the trial court’s denial of the motion. (People v. Shoals, supra, 8 Cal.App.4th at p. 488 (quoting People v. Hayes (1985) 172 Cal.App.3d 517, 524–525).)
3. A Remand Is Appropriate for the Trial Court to Exercise Its New Discretion
Under Senate Bill 620
On October 11, 2017, while this appeal was pending, the Governor signed Senate Bill No. 620. The legislation provides that effective January 1, 2018, Penal Code section 12022.53, subdivision (h) is amended to permit the trial court to strike, in its discretion, a firearm enhancement. As noted, Wallace was charged with two firearm enhancements under Penal Code section 12022.53, subdivision (d) in connection with counts 1 and 2, the jury found the firearm allegations true, and the trial court imposed a sentence enhancement of 25 years to life on each count. Wallace argues, and the People concede, that because Wallace’s appeal was not final as of January 1, 2018, the amended section 12022.53 applies retroactively to his sentencing. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678.) However, the People argue that a remand for resentencing is unnecessary because of certain statements made by the trial court.
At Wallace’s sentencing, his counsel requested that the trial court exercise its discretion to strike his prior conviction for second degree robbery and thus not to sentence him under Penal Code section 1170.12, because doing so would render him ineligible for youthful offender parole under Penal Code section 3051. (See Pen. Code, § 3051, subd. (h).) The trial court responded:
“THE COURT: I’m going to deny the request, and I’m going to kind of explain why. Number 1, I note that his strike prior, the one found to be true, was preceded by a number of juvenile petitions, and actually, sustained petitions for crimes which, under other circumstances, if they were in adult court, would have been strikes, also. Included some residential burglaries and some other robberies.
“So, his conduct was becoming increasingly serious over a period of time, but that’s really not the big reason. It’s a consideration.
“I’m going to imagine this was a case where a young kid, a young man, goes in and sticks up a liquor store; doesn’t intend to, but somebody gets—ends up killed. The gun goes off, somehow. The victim reaches for the gun, they struggle over it. The gun goes off, he gets killed, and he ends up with a super heavy sentence that he’s looking at.
“Under those circumstances, it would be easy to argue, he did something just stupid. Clearly didn’t go in there with the intent of killing somebody, but you know, stupidity breeds stupidity. Something stupid happened during a stupid event, and now, look what he’s looking at now.
“A situation like that—and I think that’s kind of what the Legislature—that’s an example of the type of situation the Legislature contemplates with this youthful offender statute.
“This is different. This is an execution. It seems to me that—I don’t know whether it was an intended execution of one person or two, but one person died and the other person was seriously injured. Two guys come up and just basically—it’s like emptying semiautomatics at these two people. That, to me, is way different than what I think the Legislature intended for this type of statute and what I think is appropriate, and I just want to give you the benefit of why.
“I would be—if this were a situation that I felt that it was contemplated by the statute, I would jump at the opportunity, but under these circumstances, I just think it’s not appropriate.”
Although this statement, as well as the trial court’s other sentencing decisions , suggest that it would not strike the firearm enhancements even if it had discretion to do so, we do not agree with the People that a remand would be an entirely idle act. The trial court’s comments were made in the context of a discussion of the youthful offender parole statute, and the trial court did not address the firearm enhancements except to note that they were “mandatory.” (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [“Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing”].) We take no position on how the trial court should exercise its newfound discretion under Senate Bill 620, but we conclude the trial court should be provided the opportunity to exercise that discretion in the first instance.
DISPOSITION
The order denying the motion for a new trial 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 the exercise of that discretion, to resentence Wallace accordingly. In all other respects, the judgment is affirmed.
 

_________________________
Richman, J.


We concur:


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Kline, P.J.


_________________________
Stewart, J.

























A150172; P. v. Wallace