Filed 4/10/18 P. v. Guerrero CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MARIANO GASTELUM GUERRERO,

Defendant and Appellant.
D071531



(Super. Ct. No. JCF33656)

APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed, and remanded with directions.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Mariano Gastelum Guerrero of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)(a); count 1); willful evasion of a peace officer (Veh. Code, § 2800.2; count 2); assault with a firearm (§ 245, subd. (a)(2); counts 3); first degree burglary (§ 459; count 4); and making a criminal threat (§ 422, subd. (a); count 5). The jury also found true the allegations that Guerrero was out on bail when he committed counts 1 and 2 (§ 12022.1), he personally used a firearm in the commission of counts 3, 4, and 5 (§ 12022.5, subd. (a)), and he personally discharged a firearm in the commission of counts 3 and 4 (§ 12022.53, subds. (c), (e)(1)).
In a separate trial, the court found two serious felony prior allegations and two strike prior allegations true. (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d).)
The court sentenced Guerrero to prison for 35 years to life, consisting of a three strikes term of 25 years to life on count 4, and a consecutive upper term of 10 years for the section 12022.5 firearm use enhancement.
Guerrero appeals, contending the firearm use enhancement should be reversed because the jury verdict form for that enhancement did not require the jury to find Guerrero personally used a firearm. We conclude Guerrero's claim lacks merit and thus affirm his conviction.
However, while this case was pending, we granted Guerrero's motion to file a supplemental brief to explain the impact, if any, of newly enacted section 12022.5, subdivision (c) on his sentence. That subdivision allows the superior court, in the interest of justice, to strike certain enhancements under section 12022.5. (See § 12022.5, subd. (c).) The People concede that section 12022.5, subdivision (c) applies to Guerrero, but argue that the record establishes the trial court would not have struck the firearm use enhancement even if it had the discretion to do so. Although we appreciate the People's contention and agree that there is some support in the record for their position, we are mindful that section 12022.5, subdivision (c) was not effective when the trial court sentenced Guerrero. Thus, at that time, the court lacked the discretion to strike the firearm use enhancement. As such, in an abundance of caution, we remand this matter for resentencing to allow the superior court to consider whether the enhancement under section 12022.5, subdivision (a) should be stricken.
FACTUAL BACKGROUND
Prosecution
Jesus Martinez grew up with Guerrero. They share mutual friends and acquaintances, including Shaundra Camargo, who had a sexual relationship with both of them in 2014. In August 2014, Camargo was pregnant and living with Martinez in his mobile home in El Centro. On August 15, she was arrested after she broke the windows of the mobile home during an argument with Martinez. The following evening, Martinez was inside his home with his neighbor Randy Martin, Irma Guerrero (Irma), Cynthia Servin (Cynthia), and Daniel Servin (Daniel). Irma is Guerrero's sister, and Cynthia is Daniel's mother.
Guerrero called and spoke with Daniel on the telephone. Guerrero was upset that Irma was at Martinez's mobile home and that Camargo had been arrested for domestic violence against Martinez the night before. Guerrero told Daniel to get Irma and Cynthia out of the home. Later, there was a knock on the door of the trailer. When Martinez started to open the door, Guerrero kicked it open and hit Martinez in the face with a gun, causing Martinez to pierce his lip with one of his teeth. Martinez fell to the ground and Guerrero entered and stood over Martinez while still holding the gun in his hand. Daniel pulled out a handgun, aimed it at Martin, and ordered him to get down on the ground. When Martin failed to comply, Daniel threw him to the ground.
Irma started crying and positioned herself between Guerrero and Martinez, allowing Martinez to escape. Guerrero chased after Martinez and fired one shot. Guerrero then re-entered the trailer, still holding the gun. Guerrero asked Martin his name and then threatened to return with "a bullet with [Martin's] name on it" if anyone found out about the incident. Guerrero was holding his gun by the barrel at the time of the threat. Guerrero fled in a van with Irma, Daniel, and Cynthia.
Martinez went to the property manager's home. He was in a panic and asked to borrow a shotgun. Martinez said, "They are going to shoot us." In response, the property manager called 911.
The following morning, August 17, 2014, a police officer attempted to stop the van driven by Guerrero. Guerrero did not stop. Instead, he accelerated and drove over curbs and on the wrong side of the road. Other officers joined the pursuit. Guerrero drove about 50 to 55 miles per hour in a residential area. Guerrero nearly hit parked vehicles, a telephone pole, a red truck, and a patrol car. When Guerrero eventually stopped, he was arrested. Camargo also was in the van. Guerrero identified her as his girlfriend and said he did not want her to be arrested. Guerrero claimed the van belonged to his cousin, but everything inside it belonged to him. One of the officers involved in the pursuit recovered a handgun that Guerrero had thrown from the van during the pursuit. There were five live rounds in the gun, which had a six-round capacity.
On August 20, 2014, Guerrero called his cousin Perla Guerrero twice from jail and said he was going to ask Camargo to take the gun charge. Guerrero discussed the attempted vehicle stop and his attempt to get rid of the gun and bullets. He also explained how he attempted to take the battery from one of his cell phones because there was incriminating evidence on it and that Camargo also took the batteries and memory cards out of her phones. When Perla later asked Guerrero why he had done it, he responded that he "wanted to get that fool for the longest" and he did it "for [Camargo] too."
On September 5, 2014, Guerrero called Camargo's sister. She told Guerrero that Alcohol, Tobacco and Firearms agents had been to the house looking for him and Daniel. They also discussed whether Guerrero or Martinez was the father of Camargo's baby.
Several of Guerrero's letters from jail also were intercepted and read to the jury. In the letters, Guerrero suggested what witnesses should say about the shooting, shifting blame to "Ricky."
Defense
Guerrero's defense strategy was to create a reasonable doubt as to his identity as the perpetrator of the burglary, assault, and criminal threats. To this end, Guerrero offered the testimony of Dr. Robert Shomer, an expert on eyewitness identification. Shomer testified regarding the difficulties of making an identification and explained the problems that he believed occurred in the identification of Guerrero as the assailant, including shortcomings in how the photographic lineup was presented to the eyewitnesses.
Irma testified that she dated both Richard Velasquez and Martinez in 2014. She stated that it was Velasquez who had a confrontation with Martinez and punched Martinez in the face.
Velasquez confirmed that he dated Irma, denied being aware she also was involved with Martinez, and asserted his Fifth Amendment privilege when asked about going to Martinez's trailer in August 2014. On October 13, 2014, Velasquez told defense investigator Joe Alcazar that he went to Martinez's trailer in August 2014 with Guerrero to pick up Irma. Velasquez claimed he went to the door, called for Irma, punched Martinez in the face, fired one shot, and left. However, Velasquez did not provide any details about the gun when asked.
An officer who responded to the scene on the night of the shooting testified regarding Martin's and Martinez's inconsistent statements. The officer also stated that both men appeared to be scared.
Rebuttal
Sylvia Valenzuela, Velasquez's girlfriend, testified that he told her he was probably going to have to "do some time" for Guerrero for a robbery and shooting incident because Guerrero told him to do so. Also, Velasquez told Valenzuela that he felt bad for Guerrero, and he would get a shorter sentence than Guerrero. Velasquez said that he did not commit the crime.
Two members of the Imperial County Narcotics Task Force testified that in April 2015, while they were transporting Velasquez to jail for a different case, he told them that he did not want to go to jail because there were people trying to "make him take a rap for [a shooting] he didn't do." He was crying when he made this statement.
DISCUSSION
I
FIREARM USE ENHANCEMENT
A. Guerrero's Contentions
Guerrero contends the section 12022.5 firearm use enhancement must be reversed because the jury did not find that he personally used a firearm. To this end, Guerrero points out that: (1) the jury verdict forms for counts 3, 4, and 5 do not include the term "personally" and (2) the jury was instructed on the theory of aiding and abetting for the underlying offenses.
B. Background
In addition to instructing the jury on the elements of the substantive offenses, the court instructed the jury on aiding abetting as follows:
"A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator." (CALCRIM No. 400.)

The court also instructed the jury under CALCRIM No. 401 as follows:
"To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: number one, the perpetrator committed the crime; number two, the defendant knew that the perpetrator intended to commit the crime; number three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and number four, the defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime."

In addition, the trial court instructed the jury on the elements of a section 12022.5 firearm use allegation with CALCRIM No. 3146:
"If you find the defendant guilty of the crimes charged in counts [3, 4 or 5], or the lesser crime of attempted burglary, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally used a firearm during the commission or attempted commission of that crime. You must decide whether the People have proved this allegation for each crime, and return a separate finding for each crime. [¶] . . . [¶] Someone personally used a firearm if he or she intentionally does any of the following: No. 1, displays a weapon in a menacing manner; no. 2, hits someone with the weapon; or three, fires the weapon. [¶] People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find the allegation has not been proved."

During closing argument, the prosecutor focused on a direct perpetrator theory for the charged offenses. Therefore, the prosecutor emphasized that Guerrero assaulted a victim with a firearm, took a firearm to Martinez's mobile home, threatened to shoot someone while holding a firearm, and fired a shot at someone. In the alternative, the prosecutor told the jurors that even if they believed Guerrero's version of events, they could convict Guerrero as an aider and abettor.
In response, Guerrero's attorney highlighted the problems of various witnesses' respective identifications of Guerrero as the perpetrator as well as the inconsistent testimony of the prosecution's witnesses. Regarding an aiding and abetting theory as to Guerrero, defense counsel argued that there was no evidence that Guerrero knew what Martinez was going to do and somehow knowingly participated in Martinez's criminal acts.
The jury found Guerrero guilty on counts 3 through 5, and for each of those counts, the jury also found true "the special allegation that the defendant USED a firearm in the commission of [that] crime[.]"
C. Analysis
" ' "A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court." ' " (People v. Jones (1997) 58 Cal.App.4th 693, 710.) The form of the verdict is generally immaterial so long as the jury's intentions are apparent. (People v. Paul (1998) 18 Cal.4th 698, 706-707.) " '[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice.' " (Jones, supra, at pp. 710-711.)
As the People point out, the instant matter is like People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter). In that case, the information alleged the defendant used a deadly weapon during the commission of the crimes within the meaning of section 12022.5. (Trotter, supra, at p. 369.) The trial court instructed the jury on the elements of the use allegation and the parties' closing arguments coincided with the court's instructions. (Id. at pp. 369-370.) The verdict forms, however, stated the defendant was armed with a deadly weapon. (Id. at p. 369.) After the jury returned its verdict but before sentencing, the court corrected the error on the verdict forms by crossing out the word "armed" and writing in the words "personally used." (Ibid.)
On appeal, the court rejected defendant's argument that "the wording in the verdict forms must be dispositive" and upheld the trial court's manual corrections to the forms. (Trotter, supra, 7 Cal.App.4th at p. 369.) The court reasoned it was clear from the record the jury intended to find true the use, not the armed, allegation. (Id. at pp. 369-370.) This was because the instructions "clearly set forth the elements which had to be proven before the finding could be made" and the "parties' argument coincided with the instructions." (Id. at p. 370.)
Here, like Trotter, supra, 7 Cal.App.4th 363, the jury's intent as to the firearm allegation in counts 3, 4, and 5 is clear from the record. The information alleged that Guerrero "personally used a firearm(s)" in the commission and attempted commission of counts 3, 4, and 5. Substantial evidence supported a finding that Guerrero personally used a firearm in committing the offenses. In addition, the day after counts 3, 4, and 5 were committed, Guerrero fled when the police attempted to pull over the van he was driving. At the close of evidence, the trial court instructed the jury on all the elements of the firearm use allegation and the prosecutor's closing was consistent with the instruction as he emphasized to the jury that Guerrero personally used a firearm in the commission of his crimes.
Also, similar to Trotter, supra, 7 Cal.App.4th 363, the wording of the verdict forms is not dispositive. In fact, the issue with the verdict forms here is less troubling than the verdict forms in Trotter. There, each of the challenged verdict forms contained the wrong word "armed," which the court the court struck and replaced with the phrase "personally used." (See id. at p. 369.) Here, the verdict forms stated that the jury found true that Guerrero "USED a firearm" but did not include the word "personally" before the word "used." Although the word "personally" did not appear in the subject verdicts, we find nothing in the record that leads us to believe that the jury's finding that "the defendant USED a firearm" could be anything but a finding that Guerrero personally used the firearm.
Nonetheless, Guerrero insists the jury could have improperly believed it could find the firearm use enhancement true if another participant used a firearm because the jury was instructed on aiding and abetting. The court did instruct the jury on the elements necessary to prove Guerrero guilty of the crimes of assault with a firearm, first degree burglary, and making a criminal threat under an aiding and abetting theory. The aiding and abetting instructions referred only to the way the jury could find Guerrero guilty of a crime. It did not refer to a true finding of an allegation. Instead, the trial court specifically instructed the jury that for each offense it found Guerrero guilty of, it had to decide, as to each crime, whether Guerrero personally used a firearm. Moreover, the court also instructed the jury regarding what was required to show Guerrero personally used a firearm. In other words, there is no instruction provided to the jury that informed it that it could use an aiding and abetting theory to find true the allegation that Guerrero personally used a firearm. Thus, the jury instructions provided to the jury in the instant matter do not support Guerrero's position here. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions."].) Additionally, we observe that the prosecutor did not argue to the jury that it could find the firearm use enhancement true based on an aiding and abetting theory.
For these reasons, we conclude the jury necessarily had to find Guerrero personally used a firearm to find the firearm use allegation true. There was no error.
II
SENTENCING ON THE FIREARM USE ENHANCEMENT
Section 12022.5, subdivision (a), provides certain penalties for the personal use of a firearm during the commission of a felony or attempted felony. Guerrero was convicted of the requisite felonies and the trial court increased his sentence under section 12022.5, subdivision (a). Specifically, the court added a consecutive 10-year sentence under that subdivision.
While this matter was pending, we granted Guerrero's motion to file a supplemental brief to address the impact of Senate Bill 620, which became effective January 1, 2018. (Sen. Bill No. 620 (2017 Reg. Sess.) Under Senate Bill 620, trial courts will have discretion to strike firearm enhancements brought under sections 12022.5 and 12022.53. (See §§ 12022.5, subd. (c), 12022.53, subd. (h).) Guerrero points out that these subdivisions were not effective at the time he was sentenced; therefore, the trial court did not have discretion to strike his firearm use enhancement under section 12022.5, subdivision (c). He asserts Senate Bill 620 should be applied retroactively, and as such, we should remand this matter to allow the superior court to consider striking his firearm use enhancement.
In their supplemental brief, the People concede People v. Francis (1969) 71 Cal.2d 66 (Francis) is controlling and requires retroactive application of section 12022.5, subdivision (c) to all nonfinal judgments.
In Francis, supra, 71 Cal.2d 66, the defendant was charged with selling and giving away marijuana. (Id. at pp. 69-70.) The matter was tried to the court and submitted on the preliminary examination transcript. (Id. at p. 70.) The court found defendant guilty of possession of marijuana as a lesser included offense. (Ibid.) At the time of the defendant's sentencing in Francis, possession of marijuana was punishable by a term of one to 10 years in prison. The court also had the authority to grant the defendant probation and require him to serve time in the county jail as a condition of probation. (Id. at p. 75.) The trial court sentenced the defendant to state prison. (Id. at p. 70.) After his conviction, but prior to the conclusion of his appeal, the Legislature amended the Health and Safety Code, authorizing a trial court to reduce a conviction for possession of marijuana to a misdemeanor, punishable by a term in county jail. (Ibid.)
The appellate court held the amendment should be given retroactive effect pursuant to In re Estrada (1965) 63 Cal.2d 740. (Francis, supra, 71 Cal.2d at pp. 75-76.) In arguing against remand, the People noted the trial court rejected the idea of placing the defendant on probation and to impose county jail time as a condition of probation. (Id. at p. 76.) In rejecting that contention, the appellate court stated, "[T]he mere fact that the Legislature changed the offense from a felony to a felony-misdemeanor conceivably might cause a trial court to impose a county jail term or grant probation in a case where before the amendment the court denied probation to a defendant eligible therefor and sentenced the defendant to prison." (Id. at p. 77.)
The People concede, and we agree, the same reasoning applies in the instant case and section 12022.5, subdivision (c) should be applied retroactively. However, the People argue that remand is not necessary because the record demonstrates the trial court would have sentenced Guerrero no differently even if it had the discretion to strike the firearm use enhancement, under section 12022.5, subdivision (c), at that time.
We need not remand the instant matter if the record shows that the superior court "would not . . . have exercised its discretion to lessen the sentence." (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The People contend the sentence imposed by the trial court below combined with the court's comments at sentencing indicate that, if given the opportunity, it would not exercise its discretion under section 12022.5, subdivision (c). To this end, the People point out that the trial court stated that it viewed "this case as aggravated." Moreover, the court explained its consideration of the firearm use enhancement: "I don't know, perhaps the Court would have the discretion to strike the use of a firearm enhancement or ignore it, but there would be no principled reason in my mind for ignoring this enhancement." The court then sentenced Guerrero to 25 years to life, plus an additional 10 years for the use of a firearm.
Although the trial court stated that it did not see a "principled reason" to ignore the enhancement, it is undisputed that the court had no discretion, at that time, to strike the firearm use enhancement. The subsequently enacted section 12022.5, subdivision (c) provided the court with that discretion, greatly modifying the court's sentencing authority. Thus, even with the court's language during sentencing, we cannot be sure that the court would not have exercised its new discretion under subdivision (c) to strike the firearm use enhancement. Therefore, in an abundance of caution, we remand this matter for resentencing to allow the superior court to consider whether Guerrero's firearm use enhancement should be stricken under section 12022.5, subdivision (c).


DISPOSITION
This matter is remanded to allow the superior court to consider whether Guerrero's firearm use enhancement should be stricken under section 12022.5, subdivision (c). In all other respects, we affirm the judgment.


HUFFMAN, Acting P. J.

WE CONCUR:



O'ROURKE, J.



DATO, J.