Filed 3/26/18 P.v. Jones CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

IRISH DONELL JONES,

Defendant and Appellant.
C083928

(Super. Ct. No. 15F00149)



A jury found defendant Irish Donell Jones guilty of robbery, with a finding he personally used a gun, and guilty of resisting an officer. On appeal, defendant contends his trial counsel rendered ineffective assistance in failing to request an instruction that the jury should view his alleged statements during the robbery with caution. He also contends reversal is required to allow the trial court to consider striking the firearm enhancement pursuant to the newly enacted Senate Bill No. 620 (2017-208 Reg. Sess.; hereafter Senate Bill 620). We will remand to allow the trial court to exercise its newfound discretion under Senate Bill 620. In all other respects, we affirm the judgment.
BACKGROUND
The Victim Testified
The victim testified that he went with his friend to a shopping complex at night to buy an Xbox controller. His friend drove them in a Lexus coupe. As they were leaving the shopping complex, a woman walked past their car, and the friend said, “. . . I got to have her.” The friend made a U-turn and drove back into the parking lot.
Soon, the friend spotted the woman walking through the parking lot. The friend parked the car, left the engine running, and walked towards the woman. As he did, the victim noticed a car with three men inside (though the victim was talking on the phone and not paying much attention). When he looked again, he saw someone running towards his car, in a “military position,” holding a gun.
That man opened the driver’s side door and put a gun to the victim’s face. He grabbed the victim by the shirt, and the victim instinctively handed over his phone. As he did, two more armed men leaned into the driver’s side door. They said, “give me everything,” “you think we playing,” and “Motherfucker, we’re not playing with you.”
As the victim struggled to reach his wallet, he heard the sound of guns cocking. The men took around $20 and the victim’s cell phone. He then heard one of the men say, “. . . Shiz, Shaz. . . . Be cool, Five-0, Five-0.” The other two men leaned out of the car.
The victim saw the police and jumped out of the car with his hands raised and yelled, “hey, they’re robbing me, they’re robbing me.” He pointed to his robbers and an officer drove towards them. Two of the men ran off, and one jumped in the friend’s Lexus and drove off.
Later, after two of his assailants were apprehended, the victim was able to identify the men as the robbers.
At trial, the victim testified under a grant of immunity for his upcoming cases. And the victim had three prior felony convictions for crimes of moral turpitude and two pending charges for theft.
A Third-party Witness Testified
A witness to the events in the shopping center testified that he had gone to the shopping complex that night. As he drove around, he saw a man in a parked car jump out and, with two police cars nearby, yell, “I’ve been robbed, I’ve been robbed. They guns.” (Sic.) Before the victim jumped out of his car, the witness recalled seeing a frightened woman quickly walk away from the victim’s car.
At trial, the witness did not recall telling officers at the scene that he saw three men sneak up to the victim’s car. He also denied seeing anyone with guns or any robbery.
An Officer Testified
One of the officers at the scene testified he saw the victim run towards him waving his hands saying he had been robbed and the robbers were armed. He and another officer followed two of the fleeing men, including defendant.
As the officer drove after him, defendant appeared to be carrying something in both hands. When defendant saw the officer about to overtake him, he stopped and said, “I don’t have a gun.” The officer found no weapons on him, but defendant was holding a white Samsung Galaxy cell phone and $21. The officer escorted defendant to his squad car.
When the victim saw defendant, the officer heard him yell, “That’s one of the motherfuckers that robbed me and put a gun to my face and told me to give him all my stuff.”
A loaded gun was found at the scene.
Defendant’s Jail Calls
The jury heard recordings of two jail phone calls defendant placed. In one call, defendant said, “I did some dumb shit,” and said several times, “I robbed somebody.” When asked what he was thinking he responded, “I don’t know, I wasn’t thinkin’ . . . .”
In the second call, defendant was asked if a gun was found on him. Defendant responded, “Nah . . . I threw it under the car brah. I dropped it . . . . It was quick thinking. I didn’t . . . I didn’t know what to do.”
Defendant Testified
Defendant testified that he had gone to the shopping center with two others after receiving a call about a girl being threatened with a gun. The call mentioned a Lexus.
When they arrived, they had an argument with the victim and his friend. When the victim’s friend waved a gun, the victim ran towards the police yelling that he had been robbed. Defendant drew and waved his gun in self-defense only after the victim’s friend waved a gun.
Defendant acknowledged that after the victim yelled to the police, he took the victim’s phone, which was sitting in the car seat. He also testified that he did not understand the legal definition of robbery when he said he had robbed someone.
Jury Instructions, Closing Arguments, and Jury Verdict
Prior to closing arguments, the trial court instructed the jury using CALCRIM No. 358 that: “You have heard evidence that [defendant] made a statement before the trial. You must decide whether he made any such statement in whole or in part. If you decide that [defendant] made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. It’s up to you to decide how much importance to give the statement.”
At closing, defense counsel conceded that defendant was guilty of theft and possibly running from the police. But he argued defendant did not understand the legal definition of robbery when he said, “I robbed somebody” — he was merely referring to the theft of the phone.
Defense counsel also attacked the victim’s credibility: “You know there’s something funny about [the victim].” “He deliberately lied with no remorse.” “. . . I’m sorry, [victim], but we cannot believe you because you lied to us, to our face.” He added that, “[O]ne of the instructions in [CALCRIM No.] 226 tells you, if somebody deliberately lies to you, you can disregard everything they say.”
The jury found defendant guilty of robbery, with a finding that he personally used a firearm and guilty of resisting a police officer. The trial court imposed the five-year upper term for robbery along with a 10-year firearm enhancement (Pen. Code, § 12023.53, subd. (b)).
DISCUSSION
I
Defendant’s Ineffective Assistance Challenge
On appeal, defendant contends his trial counsel rendered ineffective assistance in failing to request the bracketed language in CALCRIM No. 358 that the jury should, “ ‘[c]onsider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded.’ ” He points to testimony indicating that defendant told the victim to “give him all [his] stuff.” He argues the cautionary instruction was necessary because that admission touched on the core of his defense: that he was guilty of theft, not robbery.
Defendant maintains there was a reasonable probability that a cautionary instruction would have yielded a more favorable outcome given the dodgy nature of the victim’s testimony, the victim’s prior felonies, and the open charges against him. He adds, the only witness “without a ‘horse in the race’ ” testified that he did not see three individuals emerge from their car and approach with guns drawn. And defendant points to the length of jury deliberation: the jury deliberated for three full days and part of two, and asked several questions regarding the robbery count. We will affirm.
To establish ineffective assistance of counsel, a defendant must show (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (In re Welch (2015) 61 Cal.4th 489, 514; Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696] (Strickland).)
To establish prejudice, “[i]t is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 104 [178 L.Ed.2d 624, 642].) Defendant must show a reasonable probability that he would have received a more favorable result but for counsel’s deficient performance. (Strickland, supra, 466 U.S. at pp. 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.)
Here, assuming arguendo that failing to request the instruction constituted ineffective assistance, there was no prejudice. (See People v. Holt (1997) 15 Cal.4th 619, 703 [we need not determine if counsel’s performance was deficient before considering prejudice].) The victim consistently maintained that his assailants had threatened force. At trial, he testified that his robbers put a gun to his head and said, “give me everything,” “you think we playing,” and “Mutherfucker, we’re not playing with you.” And an officer recalled that immediately after the robbery, the victim saw defendant and said, “That’s one of the motherfuckers that robbed me and put a gun to my face and told me to give him all my stuff.”
The jury’s finding of guilt necessarily entailed finding the victim credible — despite counsel’s arguments the victim was lying. Indeed, defendant’s own conduct following the robbery likely led the jury to believe the victim over him. He fled the scene. Later, in recorded calls, defendant admitted throwing his gun under a car, describing it as “quick thinking.” He said, “I did some dumb shit,” “I robbed somebody,” and “I wasn’t thinkin’ ” A loaded gun was found at the scene. Moreover, the requested cautionary statement would do nothing to undermine equally damaging testimony that defendant put a gun to the victim’s head.
Accordingly, had the jury received an instruction to view defendant’s statements with caution, it is not reasonably probable that a better outcome would result.
II
Defendant’s Senate Bill 620 Challenge
In supplemental briefing, defendant contends remand is appropriate in light of Senate Bill 620, which gives trial courts discretion to strike firearm enhancements. The People concede this newly conveyed discretion applies retroactively but maintain no purpose would be served by remand. The People note the trial court denied defendant’s request for leniency and relied on several aggravating factors. We agree with defendant that remand is appropriate in this case.
On October 11, 2017, the Governor signed Senate Bill 620, which amends sections 12022.5 and 12022.53 to permit a trial court to strike a firearm enhancement: “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 & 2; see also §§ 12022.5, subd. (c), 12022.53, subd. (h).) The change became effective January 1, 2018. (Stats. 2017, ch. 682.)
We agree with the parties that Senate Bill 620 applies retroactively. If an amended statute “lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies.” (In re Estrada (1965) 63 Cal.2d 740, 744; see also People v. Francis (1969) 71 Cal.2d 66, 75.) Here, the amendment took effect before defendant’s conviction becomes final and therefore Senate Bill 620 applies retroactively. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [“for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed”].)
We disagree with the People that no purpose would be served by remand. “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.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Here, at sentencing, the trial court lacked discretion as to the firearm enhancement. Under the newly amended section 12022.53, it now has discretion. And because the record fails to foreclose the possibility of the trial court exercising discretion to strike defendant’s firearm enactment, we will remand to permit the trial court to consider exercising its newfound discretion.
DISPOSITION
The matter is remanded to the trial court to consider exercising its discretion under Senate Bill 620. In all other respects, the judgment is affirmed.



/s/
Blease, Acting P. J.


We concur:



/s/
Butz, J.



/s/
Murray, J.