Filed 12/15/17 P. v. Gibbs CA1/5
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNSON KELLEY GIBBS,
Defendant and Appellant.


A148913

(Marin County
Super. Ct. No. SC193549A)


Johnson Kelley Gibbs fatally shot his brother, Allison. A jury convicted Gibbs of involuntary manslaughter (Pen. Code, § 192, subd. (b)) and found true an allegation he personally used a firearm in the commission of the crime (§ 12022.5, subd. (a)). The trial court sentenced Gibbs to five years in state prison.
Gibbs appeals. He contends the court coerced the deadlocked jury into continuing to deliberate, which denied him the right to due process. He also argues he is entitled to resentencing in light of Senate Bill No. 620 (2017–2018 Reg. Sess.), which gives trial courts discretion to strike section 12022.5 enhancements in the interests of justice.
We remand the matter for the trial court to exercise its discretion regarding whether to strike the section 12022.5 enhancement. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2015, Gibbs lived with his mother. Gibbs’s older brother, Allison, lived on a boat, but he was “being evicted.” After Allison was “removed from the yacht harbor,” he moved in with Gibbs and their mother. Allison had a long history of drug abuse. Gibbs and his mother thought Allison was unstable and violent: he “hallucinate[ed] and threaten[ed] everyone.”
On a June 2015 evening, Gibbs went out, leaving his mother alone with Allison. Gibbs drank several beers and returned home at 9:00 p.m. At home, Gibbs drank two more beers and went to his bedroom. A short time later, Gibbs heard Allison growling like an animal downstairs, and “calling for strength to avenge his honor and go to war with people who had injured his pride.” In response, Gibbs grabbed his loaded firearm, chambered a round, and went downstairs. He was afraid for his and his mother’s safety, but he did not intend to kill Allison. As Gibbs approached the bottom of the stairs, Allison lunged at him from around a corner. As a result, Gibbs “fell backward and the gun discharged,” hitting Allison in the chest and killing him. Gibbs told his mother to call an ambulance.
In an interview with the police after the incident, Gibbs admitted killing his brother. Gibbs described Allison as “bullying,” “abusive,” and “delusional,” and said he had a very “complex reason” for shooting him. Gibbs claimed Allison tried to physically dominate him and that Gibbs was “sick and tired” of it. Gibbs told his brother, “don’t fuck with me,” and fatally shot Allison in the chest.
Jury Deliberations and the Jury’s First Note
The jury deliberated on March 28, 29, and 30, 2016. At 4:20 p.m. on March 31, the jury informed the court it had reached a partial verdict. In the packet with the verdict forms was a note from the jury stating: “The jury has reached unanimous verdict[s] on the matter of First degree murder and Second degree murder. We have not unanimously agreed on further lesser charges. And there are jurors whose position[s] are irrevers[i]ble as they relate to the lesser charges of Voluntary and Involuntary manslaughter.”
Because the partial verdict and note came late in the day, the court adjourned and ordered the jury to return on Monday, April 4, 2016. Outside the presence of the jury, the court advised the attorneys: “I’m happy to solicit input from you all on how I just handled the situation, if you have objections, or other thoughts, I’m happy to hear them.” The court read the note to the attorneys, and stated: “This requires, I think, some further discussion with the jurors, some input from counsel before I have that discussion, and that’s why I sent them away. So before we talk about the substance of the note, anything from [counsel] in terms of how I handled the situation?” Counsel for both parties responded, “No.” The court observed “we can talk about how the court [will] proceed on Monday morning. We’ll probably head toward the court bringing the whole jury in, asking some questions of the foreperson . . . probing a little bit to see if they really are at a deadlock and then . . . making a decision on whether they should continue their deliberations or declare a mistrial.” The court asked counsel to “take the weekend to just think it all through.”
Proceedings on April 4, and the Jury’s Second Note
Before the jury was brought into the courtroom on Monday, April 4, 2016, the court again asked the attorneys for thoughts on how to proceed. The prosecutor asked the court to “inquire further of the jury to see if additional deliberations would be helpful.” Defense counsel agreed the “[c]ourt needs to make an inquiry” to determine whether the jury is “hopelessly deadlocked.” Defense counsel also stated: “If they do in fact say, yes, they are hopelessly deadlocked, then I would ask the Court to then declare a mistrial and take the partial verdicts.” The court suggested bringing "the jurors in, make further inquiry on whether . . . they think further deliberations might reasonably be expected to result in a verdict.”
Before being brought into the courtroom, the jury sent the judge another note, which read: “As we were preparing to be received in court this morning, one (1) member of the jury wanted me to submit the following question to you: [¶] Are the verdicts as submitted to the court on Friday April 1st now part of the official record? [¶] This particular juror developed doubts regarding a vote cast. [¶] Sorry for the position this may put the court in.” The court read the note to counsel and brought the jury into the courtroom. Then the following colloquy occurred:
“The Court: Okay. We are back on the record in People v. Johnson Gibbs. All the jurors are in court. Good morning, everyone. Counsel are present and the defendant,
Johnson Gibbs, is also present. Okay. There are two notes that the Court needs to address with the jury at this point. One is the note that came in the envelope with the verdict forms that you all returned to court on Friday. I am just going to read the note so you remember exactly what it says since I have it now and you don’t. It says this, ‘Your Honor, the jury has reached unanimous verdicts on the matter of first degree murder and second degree murder. We have not unanimously agreed on further lesser charges and there are jurors whose positions are irreversible as they relate to the lesser charges of voluntary and involuntary manslaughter.’ Signed foreperson. It was dated Friday. This came April 1st essentially at the end of the day. The note was . . . inside of the envelope with the . . . verdict forms, and the Court had not, nor had counsel had an opportunity to see that note before we brought you all into court. So we sent you home so we could consider the note and respond to it, which is the first thing I am going to do today. Your note that was submitted this morning I will get to in just a minute. You indicated, folks, in this note that you had reached two verdicts, but were deadlocked on the lesser charges of voluntary and involuntary manslaughter. The Court has an obligation with that kind of information coming to it to make some inquiry on whether further deliberations might reasonably be expected to result in a verdict. That’s what I am going to do now. To start that process, I am going to ask the foreperson a couple of questions. Okay. I certainly don’t mean to put you on the spot Juror No. 3, but this is the way the Court can get a little bit of information. Specifically, on the lesser offense of voluntary manslaughter, has the jury taken a ballot or vote on that specific charge?
“Juror No. 3: Yes, sir.
“The Court: How many ballots or votes do you believe the jury has taken on the allegation—the lesser allegation of voluntary manslaughter?
“Juror No. 3: I believe there were two, to the best of my knowledge.
“The Court: I know these are tough questions. Just answer the best you can. And over the course of time, can you give me just a general sense of when those ballots were taken? Friday? Thursday?
“Juror No. 3: Those ballots on the lesser charge of voluntary manslaughter were taken after the lunch period on Friday, April 1st.
“The Court: Both of them after lunch on Friday?
“Juror No. 3: Correct.
“The Court: Okay.
“Juror No. 3: The votes on the—
“The Court: Don’t tell me that what they were yet.
“Juror No. 3: No, no. I was just going to clarify my answer. The votes on the question of first or second degree murder were taken prior to the lunch hour on Friday.
“The Court: Okay. Changing the focus just a little bit. Specifically, to the lesser offense of involuntary manslaughter, has the jury taken votes specifically on that lesser offense?
“Juror No. 3: Yes, sir.
“The Court: How many votes do you think you have taken on that lesser offense?
“Juror No. 3: I believe there was only one vote on that charge, your Honor.
“The Court: Was that also after lunch on Friday?
“Juror No. 3: Yes, sir.
“The Court: Again, just speaking to the foreperson. Do you believe as to those two lesser offenses any further deliberation, instruction from the Court, reading of further testimony from the court reporter could assist the jury in reaching a verdict?
“Juror No. 3: No, I do not, your Honor.
“The Court: For a brief moment I am going to open up the questioning beyond just the foreperson and ask just for a show of hands. I am not going to ask anyone to talk at this point; but of the other 11 jurors, do any of you believe that further deliberations, instructions from the court, the readback of further testimony from the court reporter could put you in a position to reach unanimous verdicts on voluntary manslaughter or
involuntary manslaughter? Any of the others optimistic in that regard? I see no hands. Okay. Back to the foreperson. Sorry to jump around a little bit. Regarding the lesser offense of voluntary manslaughter—please do not tell me which way the vote is for or against that charge, but what is the split? Just give me two numbers that add up to 12 in the latest vote.
“Juror No. 3: Well, we had two votes on the issue of voluntary manslaughter.
“The Court: Okay.
“Juror No. 3: And so you are asking me the numbers without telling which is which?
“The Court: Yeah.
“Juror No. 3: Is that how I understand?
“The Court: Yes. So I just want to hear eight and four or eleven and one, two or 10, or whatever.
“Juror No. 3: Well, I can give you both the first and second vote.
“The Court: Let’s do that. First vote.
“Juror No. 3: To the best of my recollection, the first vote was six to six.
“The Court: And how about the second?
“Juror No. 3: And I believe the second vote was eight to four.
“The Court: Moving to the lesser offense of involuntary manslaughter where you had one vote, two numbers that add up to 12. What was the vote?
“Juror No. 3: Ten to two.
“The Court: A bit trickier of a question. If you can’t answer it, that’s fine. Is there some specific issue that you can tell me about that if you had clarification on it would help this jury potentially reach unanimous verdicts on voluntary manslaughter or involuntary manslaughter?
“Juror No. 3: To the best of my recollection, there is no specific issue that was brought forward by the jurors who submitted to me that their decision was irreversible in the vote of involuntary manslaughter.
“The Court: Okay. Thank you. I know that’s a tough one.
“Juror No. 3: That’s the reason I chose those words when I wrote that note.
“The Court: Okay. Thank you. Thank you all. The second note you all sent out—I am just going to read it again so everyone has it fresh in mind. . . . ‘Judge Sweet, as we were preparing to be received in court this morning, one member of the jury wanted me to submit the following question to you. Are the verdicts as submitted to the Court on Friday, April 1st, now part of the official record? This particular juror developed doubts regarding vote cast. Sorry for the position this may put the Court in.’ As an aside, no need to apologize at all, folks, for anything. So the way I am going to answer that is in context with what I am going to do on the first note. I am going to direct you all to return to the jury room to continue your deliberation. I am going to return to you all of the verdict forms signed and unsigned, and you can consider them in any fashion that you see fit. You can take the jury back to the jury room. I am passing the
forms of verdict to the foreperson. Everything you gave me is back in there.
“Juror No. 3: Okay.”
After the jury left the courtroom, the court asked counsel whether they “wish to be heard on any topic.” In response, defense counsel stated, “I just want to repeat my objection that the partial verdicts should have been taken. They [the jurors] declared that they were irreversibly deadlocked on the lesser charges.” The prosecutor disagreed, noting “there was some movement” when the votes were taken and, as a result, it was “fair to allow the jury to continue to deliberate.” The trial court concluded the hearing with the following comment: “I am going to have the jury continue their deliberations. I did hear their answers in here in open court; but looking at the notes I have been taking about their deliberations, it seems like they have been out for a long time but a lot of it has been engaged in readback, and I do think maybe over the weekend a fresh set of perspectives will benefit this jury. So we will give them some more time. I also think that [the second note] suggests to the Court that there may be some further discussions to be had.”
Later that day, the jury requested and received readback of Gibbs’s testimony regarding the night of the shooting. The jury reached a verdict the next afternoon, Tuesday, April 5, 2016, finding Gibbs guilty of involuntary manslaughter (§ 192, subd. (b)). The jury also found true the allegation Gibbs personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)).
The trial court sentenced Gibbs to five years in state prison, comprised of the low term of two years on the involuntary manslaughter conviction and the low term of three years on the section 12022.5 enhancement.
DISCUSSION
I.
The Court’s Supplemental Jury Instruction Was Not Coercive
Gibbs claims the court’s direction to the jury to continue deliberations failed to assure the jury “would not feel coerced to reach a verdict.” Section 1140 provides that “the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict . . . 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.” In the event of a deadlock, “[t]he court may ask jurors to continue deliberating where, in the exercise of its discretion, it finds a ‘reasonable probability’ of agreement.” (People v. Pride (1992) 3 Cal.4th 195, 265; People v. Howard (2008) 42 Cal.4th 1000, 1029–1030.) Even where the jury has deliberated for a substantial amount of time and indicates it is unable to reach a verdict, the trial court still retains discretion to require further deliberation. (People v. Sandoval (1992) 4 Cal.4th 155, 194–197.) “Directing further deliberations is proper where the trial court reasonably concludes that ‘such direction would be perceived “ ‘as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.’ ” ’ ” (People v. Whaley (2007) 152 Cal.App.4th 968, 980 (Whaley).)
“The court must exercise its power . . . without coercion of the jury, so as to avoid displacing the jury’s independent judgment ‘in favor of considerations of compromise and expediency.’ ” (People v. Breaux (1991) 1 Cal.4th 281, 319.) “ ‘[I]t is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried.’ ” (People v. Santiago (2009) 178 Cal.App.4th 1471, 1475.) “Coercion occurs where ‘the trial court, by insisting on further deliberations, expresse[s] an opinion that a verdict should be reached.’ ” (People v. Peoples (2016) 62 Cal.4th 718, 783 (Peoples).) The question of coercion depends “on the facts and circumstances of each case.” (People v. Sandoval, supra, 4 Cal.4th at p. 196.) A defendant’s right to due process is violated if a trial court coerces jurors into reaching a verdict. (Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976, 979.)
Gibbs contends the court’s instruction to the jury to continue deliberating was coercive. The Attorney General argues Gibbs forfeited this claim. We reject the Attorney General’s argument for two reasons. First, Gibbs is not—as the Attorney General seems to contend—arguing the court abused its discretion by determining the jury should “continue [its] deliberations.” Instead, Gibbs claims the court’s supplemental instruction was coercive. Second, Gibbs did object to the court’s supplemental instruction. Before the court instructed the jury to continue deliberating, defense counsel told the court that where the jury is “hopelessly deadlocked,” the court should “declare a mistrial and take the partial verdicts.” After the court gave the supplemental instruction, defense counsel repeated his “objection that the partial verdicts should have been taken” because the jurors “declared that they were irreversibly deadlocked on the lesser charges.” Defense counsel did not fail to object, or consent to the content of the supplemental instruction. (Cf. Whaley, supra, 152 Cal.App.4th at p. 983 [no objection to supplemental instruction]; People v. Bohana (2000) 84 Cal.App.4th 360, 373 [claim of error waived where “appellant consent[ed] to the trial court’s response to jury questions during deliberations”].)
We reject Gibbs’s claim on the merits. In analyzing a claim of coercion, the relevant inquiry is whether the trial court’s comments “impose[d] such pressure on jurors to reach a verdict” that “the accuracy and integrity of the jury’s stated conclusion” cannot be assured. (People v. Gainer (1977) 19 Cal.3d 835, 850, disapproved on another point in People v. Valdez (2012) 55 Cal.4th 82, 163.) Here, the court’s comments were not coercive. The court imposed no pressure on the jury. The court did not “either express or imply to the jurors that they must reach a unanimous verdict, or a particular outcome.” (People v. Brooks (2017) 3 Cal.5th 1, 89 (Brooks); Peoples, supra, 62 Cal.4th at p. 783 [court’s comments to jury were not coercive].) The court did not “exert pressure on any juror, nor did it express any exasperation about the jury’s deliberations.” (People v. Johnson (2015) 61 Cal.4th 734, 770.) The court simply asked the jury to deliberate further. This request was reasonable, given that: (1) the jury had been deliberating for a relatively short time when it announced the deadlock before adjourning on Friday; (2) there was movement in the votes taken on Friday; and (3) one juror expressed “doubts regarding a vote cast” on Friday. “Directing further deliberations” was a proper “ ‘ “ ‘means of enabling the jurors to enhance their understanding of the case.’ ” ’ ” (Whaley, supra, 152 Cal.App.4th at p. 980.)
The court was not required to take to take the jury’s claim of deadlock at face value, nor was it required to remind “the jurors to exercise independent judgment and to avoid compromise.” The jurors knew they were to exercise their independent judgment and that they were not required to reach a verdict because the court had instructed them with CALCRIM No. 3550 before deliberations began. (See People v. Debose (2014) 59 Cal.4th 177, 210.) Under the totality of the circumstances, the court’s direction to continue deliberating was not coercive. (Peoples, supra, 62 Cal.4th at p. 783; Brooks, supra, 3 Cal.5th at p. 89.) Having reached this result, we reject Gibbs’s claim that his federal constitutional rights were violated and we need not address the parties’ arguments regarding prejudice.
II.
The Case Must Be Remanded to Consider Senate Bill 620
We granted rehearing to determine whether Gibbs is entitled to resentencing based on Senate Bill 620, which gives trial courts discretion to strike or dismiss section 12022.5 enhancements in the interests of justice.
A. Background
The prosecution urged the court to impose the aggravated terms on the involuntary manslaughter conviction and on the section 12022.5 enhancement. The probation department recommended the low term on the conviction, noting no circumstances in aggravation (Cal. Rules of Court, rule 4.421) and two factors in mitigation (Cal. Rules of Court, rule 4.423). In addition, the probation department recommended the low term on the firearm enhancement, “given the mitigating fact that [Gibbs] felt threatened by the victim and possessed the firearm for protection.”
At the June 2016 sentencing hearing, the court noted Gibbs was statutorily ineligible for probation, and that the case did not fall within the “unusual circumstances” exception warranting probation (§ 1203, subd. (e)(2); Cal. Rules of Court, rule 4.413). The court, however, imposed the low term on the involuntary manslaughter conviction, noting there were only two factors “in aggravation,” and that “the factors in mitigation outweigh[ed] the factors in aggravation.” The court also imposed the low term on the section 12022.5 enhancement.
B. Gibbs Is Entitled to Resentencing Based on Senate Bill No. 620
When Gibbs was charged, convicted and sentenced, section 12022.5 required the court to impose a sentencing enhancement for “any person who personally uses a firearm in the commission of a felony . . . unless use of a firearm is an element of that offense,” and that “[n]otwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” (§ 12022.5, subds. (a) & (c).) As a result, the trial court was required to—and did—enhance Gibbs’s sentence pursuant to section 12022.5.
After Gibbs was convicted but before his case was final on appeal, the Governor signed Senate Bill No. 620, which amends section 12022.5, subdivision (c) to permit the trial court to strike a firearm enhancement as follows: “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.)
Gibbs contends the amendment to 12022.5, subdivision (c) applies to him retroactively under In re Estrada (1965) 63 Cal.2d 740 and, as a result, his case must be remanded for the court to exercise its discretion to strike or dismiss the enhancement. Under Estrada, courts presume that absent evidence to the contrary, the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal. (Id. at pp. 747–748; People v. Brown (2012) 54 Cal.4th 314, 324.) The Estrada rule has been applied to amendments reducing the penalty for a particular offense, but also to amendments giving the court the discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.) The Attorney General concedes “the new law is retroactive” and that section 12022.5, subdivision (c) gives trial courts discretion to dismiss or strike the enhancement. We accept that concession.
The Attorney General, however, claims remand is unnecessary because the record establishes the court would have not stricken or dismissed the section 12022.5 enhancement. We are not persuaded. The court’s determination that the case was not appropriate for probation does not foreclose the possibility the court might strike the section 12202.5 enhancement, given the unique circumstances of this case. We view this as a situation akin to one where the court misunderstands the scope of its discretion when imposing sentence. (See, e.g., People v. Deloza (1998) 18 Cal.4th 585, 599–600 [case remanded for resentencing where court did not understand it had discretion to impose concurrent rather than consecutive sentences]; see People v. Francis, supra, 71 Cal.2d at p. 79.) “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. [Citations.] Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the sentencing court,’ and a court that is unaware of its discretionary authority cannot exercise its informed discretion.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
This case is not—as the Attorney General suggests—like People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez). In Gutierrez, the trial court sentenced the defendant under the three strikes law and noted: “ ‘there really isn’t any good cause to strike’ [the prior conviction]. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible.’ ” (Id. at p. 1896.) While the defendant’s appeal was pending, the California Supreme Court determined “trial courts have discretion to strike three strikes prior convictions in the furtherance of justice.” (Ibid.)
The Gutierrez court declined to remand the case for resentencing. It explained: “[i]n the present case, the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence. It stated that imposing the maximum sentence was appropriate. It increased [the] sentence beyond what it believed was required by the three strikes law, by imposing the high term for count 1 and by imposing two additional discretionary one-year enhancements. Under the circumstances, no purpose would be served in remanding for reconsideration. Moreover, in light of [the defendant’s] record and the facts of the present offense, imposition of the maximum term is well within the trial court’s sentencing discretion.” Here and in contrast to Gutierrez, the court imposed the low term, and it did not suggest it would decline to strike the enhancement if presented with the opportunity on remand. Unlike Gutierrez, remand would not necessarily be futile.
We express no opinion as to how the trial court should exercise its newly granted discretion under section 12022.5, subdivision (c) on remand. We conclude only that it is the trial court’s function to exercise this discretion in the first instance.
DISPOSITION
The matter is remanded for the trial court to exercise its newly-bestowed discretion regarding whether to strike the section 12022.5 enhancement. In all other respects, the judgment is affirmed. 



_________________________
Jones, P. J.


We concur:


_________________________
Simons, J.


_________________________
Needham, J.












A148913