Filed 4/16/18 P. v. Gaddis CA3
Opinion on recall of remittitur
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JUSTICE GADDIS,

Defendant and Appellant.
C074932

(Super. Ct. No. 12F05890)







Defendant Justice Gaddis was sentenced to 14 years in prison after a jury found him guilty of assault with a firearm and being a felon in possession of a firearm. The jury also found defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1). On appeal, he contends: (1) there was insufficient evidence to support imposing a gang enhancement on his conviction of being a felon in possession of a firearm, (2) the trial court abused its discretion when it sentenced him to the upper prison term for assault with a firearm and a consecutive upper term for a firearm enhancement, and (3) remand is necessary for the court to exercise its discretion as to whether to strike his firearm enhancement under the recent amendment to section 12022.5. We disagree that insufficient evidence supported the gang enhancement and disagree that the court abused its discretion when sentencing him to the upper term for assault with a firearm. We, however, agree that his case should be remanded for the trial court to exercise its informed discretion when sentencing defendant to the firearm enhancement. We thus affirm the conviction but remand for the trial court to exercise its discretion whether to strike the gun enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
The crime victim, Savon Jones, was in a relationship with Vanessa Shockley in August 2012 when Savon’s former girlfriend, Gina, announced she was pregnant with Savon’s child. Shockley threatened to shoot Gina in the stomach. To scare Shockley, Savon responded by threatening to shoot her. Savon ended the relationship with Shockley after he told her she would have to get used to the fact that Gina was having his child.
The night Savon ended the relationship, Shockley went to his home with defendant and defendant’s two aunts. Savon met them outside, along with his mother and sister. Defendant became upset over how Savon spoke with one of his aunts. Defendant said, “29th Street Crips,” pulled out a small, black revolver from his waist, pointed it at Savon, and said, “I will shoot you in your dome.” Savon did not take a swing at defendant. He turned his head, and defendant hit him on the side of his face with the gun. The resulting wound required seven stitches.
Arrested and in custody, defendant called his roommate Jhtorre Bolden, from jail just hours after he committed the assault. Defendant asked Bolden if he had “something” and if he had it “tucked.” Bolden said he had it “tucked away.” Bolden also mentioned someone named “Rico” during the phone call, referring to Enrico Jones.
Enrico took Bolden to school that morning. While at Bolden’s home, Bolden directed Enrico to retrieve a revolver from his bedroom. Enrico took the revolver home.
Defendant was released on bail on September 19, 2012. Three days later, defendant texted Enrico and asked him to bring the gun to him. Enrico gave defendant the gun at a Crip-related barbecue. A video taken of the barbecue and posted on YouTube showed defendant and Enrico at the barbecue throwing up Garden Blocc Crip gang signs. The video also showed defendant displaying a firearm.
On September 28, 2012, after defendant was remanded into custody, he called Enrico, and they discussed Enrico getting “something” from defendant’s room and holding it for him. Enrico testified that defendant told him to retrieve the gun and sell it for him so he could make bail. When Enrico took the gun from defendant’s room, the gun was loaded.
Officers later conducted a probation search of Enrico’s home and found a loaded .38 revolver inside. They also found a DVD that had Crip-related writing on it. Detective Joseph Ellis of the Sacramento Police Department testified that the gun shown in defendant’s possession in the video of the Crips barbecue was the same gun he retrieved from Enrico’s house.
Detective Ellis also testified at trial as the prosecution’s gang expert. In his opinion, defendant was an active member of the Garden Blocc Crips, and Enrico was an active member of the Crips. The Garden Blocc Crips’s primary activities included weapons violations, gun possession violations, homicides, and assaults. Detective Ellis stated a hypothetical crime mirroring the facts of defendant’s assault on Savon would benefit the perpetrator’s gang because he and the gang would earn respect through fear and intimidation. Carrying a gun is one of the “status symbols” a gang member can have. We discuss Detective Ellis’s testimony in more detail below.
The jury found defendant guilty of assault with a firearm (§ 245, subd. (a)(2)) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). It also found defendant possessed the firearm for the benefit of a criminal street gang, and that he personally used a firearm within the meaning of section 12022.5, subdivision (a) when committing the assault. In addition, the jury made a special finding that defendant committed the assault using the firearm as a bludgeon, not by pointing a loaded firearm at the victim.
The trial court sentenced defendant to prison for a total of 14 years, calculated as follows: the upper term of four years for the assault, plus a consecutive upper term of 10 years for the firearm enhancement. The court also imposed a concurrent middle term of two years for felon in possession of a firearm, plus three years for the gang enhancement. It also imposed a concurrent two-year term for a violation of probation on a separate case.
 
DISCUSSION
I
Substantial Evidence Supports The Gang Enhancement
Defendant contends insufficient evidence supports the gang enhancement imposed on his conviction of being a felon in possession of a firearm. We disagree. Substantial evidence supports the jury’s findings.
Section 186.22, subdivision (b)(1), imposes additional punishment on any person who is convicted of a felony committed (1) “for the benefit of, at the direction of, or in association with any criminal street gang,” and (2) “with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” The first prong of this test requires the crime be gang related. (People v. Alibillar (2010) 51 Cal.4th 47, 60 (Alibillar).) “Not every crime committed by gang members is related to a gang.” (Ibid.) However, “[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was ‘committed for the benefit of . . . a[] criminal street gang’ within the meaning of section 186.22[, subdivision] (b)(1)]. ” (Alibillar, supra, at p. 63; see also People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez) [expert may offer opinions based on hypothetical facts, but he cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception”].)
The enhancement’s second prong limits the enhancement’s application to “when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang.” (Alibillar, supra, 51 Cal.4th at p. 67.) It “applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.” (Id. at p. 66, original italics.) “ ‘Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.’ ” (People v. Miranda (2011) 192 Cal.App.4th 398, 412.)
The jury convicted defendant of being a felon in possession of a firearm under section 29800, subdivision (a)(1). “The elements of this offense are conviction of a felony and ownership or knowing possession, custody, or control of a firearm. (People v. Snyder (1982) 32 Cal.3d 590, 592; People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) ‘A defendant possesses a weapon when it is under his dominion and control. [Citation.] A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others. [Citations.]’ (People v. Peña (1999) 74 Cal.App.4th 1078, 1083-1084.) ‘Implicitly, the crime is committed the instant the felon in any way has a firearm within his control.’ (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410, italics omitted.)” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1052 [referring to former § 12021, subd. (a)(1), § 29800, subd. (a)(1)’s predecessor].)
Substantial evidence supports the jury’s findings that defendant unlawfully possessed a firearm for the benefit of a criminal street gang and with the specific intent to further or assist criminal conduct by gang members. To reach this finding, we must define the actual possession offense the jury determined benefitted a street gang as well as describe the evidence that supports the jury’s finding. The prosecutor alleged defendant unlawfully possessed a firearm “[o]n or about August 28, 2012,” the same day as the assault. The jury convicted defendant of unlawful possession and it found he possessed the firearm for the benefit of a street gang, but the jury also found defendant did not commit the assault with the firearm for the benefit of a street gang. This situation, however, does not preclude us from affirming the jury’s finding that defendant possessed the firearm for the gang’s benefit on August 28, 2012. Possession is a continuing offense, and there was sufficient evidence for the jury to conclude the revolver defendant possessed at the time of the assault and at the barbecue was the same revolver defendant directed Enrico to obtain and hide and which officers found in Enrico’s home.
The Supreme Court has declared “possession of a firearm by a felon is a continuing offense. (Wright v. Superior Court (1997) 15 Cal.4th 521, 525, fn. 1 (Wright); see People v. Warren (1940) 16 Cal.2d 103, 112 [].) ‘The concept of a continuing offense is well established. For present purposes, it may be formulated in the following terms: “Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.” [Citations.] Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. “The crime achieves no finality until such time.” ’ (Wright, supra, 15 Cal.4th at pp. 525-526, fn. omitted.)
“ ‘In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over [an] indefinite period.’ ” (People v. Mason (2014) 232 Cal.App.4th 355, 365, original italics.)
Here, there is no doubt defendant unlawfully possessed a firearm on August 28, 2012, and sufficient evidence supports the jury’s implied finding that unlawful possession continued until police obtained the revolver from Enrico’s home on October 24, 2012, as the gun defendant possessed at the assault and the barbecue and the gun defendant directed Enrico to retain were the same firearm. Savon saw defendant pull the gun from his waist. He described the gun as a black “small revolver-looking-type gun.” He knew the difference between a revolver and a semiautomatic gun. Defendant was taken into custody within hours of the assault. At 5:20 a.m. that same morning, he called his roommate Bolden and asked him if he had “something” and if he had it “tucked.” Bolden said he had it “tucked away.” He mentioned Enrico during the phone call. Enrico was at the house that morning to pick Bolden up for school. Bolden directed Enrico to get a gun out of Bolden’s room. The gun was a revolver. Enrico took the gun home. A couple of days later, defendant called Enrico and asked if he had the gun.
Defendant was released on bail on September 19, 2012. On September 22, 2012, defendant texted Enrico to bring the gun to him, which Enrico did at a barbecue defendant attended. A video of the barbecue posted on YouTube shows defendant displaying a gun and throwing up gang signs with Enrico. On September 28, 2012, after he was remanded into custody, defendant called Enrico and asked him to get the gun from defendant’s room and sell it for him. Police conducted a probation search at Enrico’s home on October 24, 2012. Before they entered, Enrico said they would find a .38 revolver in the house. Enrico informed the police defendant had asked him to hold onto the gun for him. Enrico said he retrieved the gun from defendant’s house. Police found a loaded black .38 revolver inside the house. Detective Ellis testified the revolver he retrieved from Enrico’s house was the same gun the video recorded defendant was waving at the barbecue.
Understanding the scope of the possession offense as continuing from the day of the assault until police obtained the gun, we can review the record to determine whether the evidence supports the jury’s finding that defendant unlawfully possessed the revolver for the benefit of a street gang and with the intent to assist criminal conduct by gang members. As to the enhancement’s first prong, the evidence supports the finding defendant unlawfully possessed the gun for a gang’s benefit. Detective Ellis, the prosecution’s gang expert witness, testified defendant was an active member of the Garden Blocc Crips. The Garden Blocc Crips are a street gang and a subset of the larger Crips gang. It came into existence when various smaller gangs, including the 29th Street Crips, merged. Their criminal activities include weapons violations and gun possession violations.
Given a hypothetical mirroring the facts of defendant’s encounter with Savon, Detective Ellis testified a defendant who committed these actions would benefit a criminal street gang. Gang members seek respect from their fellow gang members, from rival gangs, and from the public. Carrying a gun is a status symbol for a gang member, and it in turn benefits the gang. Detective Ellis testified that when people know a member is carrying a gun, they know he is carrying it because of his loyalty to the gang, and he will use it in defense of his gang and fellow gang members. Indeed, he is expected to use the gun against a rival gang member if necessary.
Detective Ellis stated gang members who carry guns earn more respect within their gang because they are seen as more dedicated to committing crimes for the gang. Carrying also protects them and other gang members when guns are needed against rival gang members.
Additional facts demonstrate defendant’s possession of the gun benefitted his gang. Defendant displayed the gun at the Crips barbecue. That display was posted on YouTube for a large audience to see. The gang wanted to intimidate any who would watch the video, which defendant accomplished by waving the gun. These facts, along with Detective Ellis’s testimony, are sufficient for the jury to determine defendant’s unlawful possession of the gun benefitted a criminal street gang.
Defendant, however, asserts this case is similar to People v. Ramon (2009) 175 Cal.App.4th 843, 851 (Ramon), and People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa), cases where the Courts of Appeal held the evidence was insufficient to support the first prong. We disagree with his argument. In Ramon and Ochoa, the courts found the factual evidence did not support the expert’s testimony. “[T]he record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762, original italics.)
Unlike the facts underlying Ramon and Ochoa, the expert’s opinion testimony here that defendant acted with an intent to benefit his gang was “coupled with other evidence from which the jury could reasonably infer the crime was gang related.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 931.)
As to the enhancement’s second prong, the evidence supports a reasonable juror’s determination that defendant unlawfully possessed the gun with the specific intent to further or assist criminal conduct by gang members. Defendant shared possession of the gun with Enrico, whom Detective Ellis testified was a Crips gang member. Detective Ellis saw Enrico in the barbecue video flashing gang signs with defendant and assisting with the gun possession. Detective Ellis was also part of the team that apprehended Enrico and searched his room. He found gang graffiti and clothing that indicated Enrico was a gang member. Additionally, Detective Ellis knew Enrico had been a Crip member in Bakersfield and had admitted in the past to being a Crip. Defendant directed Enrico to possess and transport the gun, thereby making Enrico an accessory to his unlawful possession. This was sufficient evidence supporting the jury’s decision that defendant acted with the specific intent to further criminal conduct by a gang member.
Defendant contends there is insufficient evidence to support the jury’s finding on the second prong because evidence of Enrico’s gang membership is “very sparse.” To the contrary, the evidence was sufficient to support the expert’s testimony that Enrico was a gang member.
We thus find sufficient evidence supports the jury’s finding true the gang enhancement allegation as applied to the felon in possession of a firearm conviction.
II
Alleged Sentencing Errors
Defendant contends the trial court abused its discretion when it imposed the upper base term of four years for the assault with a firearm conviction, plus a consecutive upper term of 10 years for the personal use firearm enhancement associated with that count. He asserts the court abused its discretion by not considering mitigating factors. Regarding the personal use of a firearm enhancement, defendant also contends the recent amendment to section 12022.5 requires us to remand his case so that the trial court can exercise its newly-granted discretion to decide whether to strike the enhancement. We conclude the trial court did not abuse its discretion when imposing the upper term of imprisonment for the assault with a firearm conviction. We do, however, agree that remand is necessary so that defendant can take advantage of the recent amendment to section 12022.5 and have the opportunity for the trial court to exercise its informed discretion when sentencing him to the firearm enhancement.
A
Background
At the time of the crime, defendant was 19 years old and had a long criminal record. His prior sustained juvenile adjudications are: (1) second degree burglary in 2006; (2) misdemeanor battery and brandishing a weapon in 2007 in which defendant assaulted the victim by striking him in the back of the head, and, in a subsequent matter, he pointed a gun at the victim; (3) misdemeanor providing false identification to an officer in 2008; (4) misdemeanor intimidating a witness in 2009; (5) misdemeanor brandishing a firearm and fighting in a public place in 2009 in which the victim was struck with a bottle and received a large laceration above his eye, and defendant pointed a handgun at the victim’s friend; and (6) assault with a deadly weapon in 2011 in which defendant and another person punched the victim several times, causing the victim to lose consciousness. Defendant was 17 years old when he was arrested for the 2011 assault, making that crime a possible strike.
As an adult, defendant was convicted in 2012 of concealing a firearm in a vehicle. The trial court placed defendant on five years’ formal probation and ordered him to serve 180 days in the county jail.
During defendant’s trial, Vanessa Shockley testified that at the time of the incident, Savon suspected she was cheating on him, and he threatened to shoot at her house. Shockley also claimed she left Savon because he choked her and threatened to kill her.
One of defendant’s aunts, Monica Bracamonte, was with him at the incident. Shockley lived with Bracamonte, along with another aunt and Bracamonte’s niece. Bracamonte testified that outside Savon’s house, Savon started coming towards her after she accused him of threatening to kill Shockley and shoot up her house. She said defendant told Savon to back away from his aunt; he did not mention anything about the 29th Street Crips. Bracamonte also said Savon swung first at defendant, and defendant swung back and hit him on the left side of his check. Bracamonte claimed defendant did not have a gun in his hand and did not threaten to shoot Savon.
Prior to sentencing, defendant filed a statement in mitigation requesting the trial court consider in its sentencing decision the following circumstances: (1) the “victim was an initiator of, willing participant in, or aggressor or provoker of the incident” (Cal. Rules of Court, rule 4.423(a)(2)); (2) the “crime was committed because of an unusual circumstance, such as great provocation [Savon’s threats to shoot Shockley and shoot up Bracamonte’s house and endanger its residents], that is unlikely to recur” (Rule 4.423(a)(3)); and (3) the “criminal conduct was partially excusable for some other reason not amounting to a defense [Savon’s threats and his willingness to fight defendant].” (Rule 4.423(a)(4).) Defendant also argued against an upper term sentence.
Following the sentencing hearing, the trial court rejected defendant’s arguments for mitigation. It explained its sentencing decision as follows: “ I certainly understand the position that you are taking. But, again, I am not sure that you can just look at that sort of isolated fact in [and of] itself. I think one needs to look at sort of the totality of the circumstances.
“In fact, [the jurors] did find the gang allegation to be true with respect to the possession of the firearm.
“But one thing that is replete when I reviewed the probation report and your client’s criminal record, is that his involvement with guns and violence is not something that just started with the commission of this crime.
“He appears, particularly throughout the juvenile system, to have been involved with the system where one can only assume that there were opportunities for him to get out and avoid that lifestyle. And yet, he continually is involved in assaultive conduct. He’s involved in the possession of firearms.
“So albeit in this case, [defendant] did not put the gun to the victim’s forehead and pull the trigger, the use of a gun here does have significance and this is consistent with the pattern of anti-social environment behavior on the part of your client.
“And also the circumstances-although you have argued in your moving papers that it somehow is a factor in mitigation that he became involved in this incident and then you’ve argued [subdivision (a)(3)] as a necessity for his family. Uhm, that he went there to fight protection for his aunt and the children.
“Frankly, I don’t accept that as a factor in mitigation. There are other things that he could have done to avoid that confrontation. But he, I think went there with the idea that he potentially would use violence. Which he did.
“And I don’t agree with your client’s assessment in the argument that in terms of the incident that took place in front of that house, that there was any legal justification for the use of violence.
“In fact, any argument of that nature was rejected by the jury.
“[Defendant,] I never take pleasure in imposing sentences on people of your age. However, given your history with the criminal justice system, your continuing involvement in violent behavior, I do believe that the sentence I am about to impose is appropriate.
“In fact, even while you were in custody, in this matter, you continued to engage in violent acts, even though you were fully aware that you had charges pending.”
The court proceeded to sentence defendant to the upper term of four years for assault with a firearm. It selected the upper term “in light of the defendant’s what I consider extensive and violent criminal history.” The court also imposed a consecutive upper term of 10 years on the firearm enhancement. It chose the upper term “not only with respect to the defendant’s prior record, but at the time of the commission of this offense the defendant was on a grant of probation.”
B
The Trial Court Did Not Abuse Its Discretion By Imposing
The Upper Term Of Imprisonment For Assault With A Firearm
We first address defendant’s argument regarding the upper term of imprisonment imposed for the assault with a firearm conviction. With respect to that sentence, defendant argues the court did not consider mitigating factors and thus abused its discretion. We disagree.
“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports, . . . and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, . . . and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. . . .” (§ 1170, subd. (b).)
We review the trial court’s selection of the upper term for an abuse of discretion. “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978 (Alvarez), quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ (Alvarez, at p. 978, quoting People v. Preyer (1985) 164 Cal.App.3d 568, 573.) Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
“[A] trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions [not relevant here.] [Citations.] The court’s discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be ‘reasonably related to the decision being made.’ (Cal. Rules of Court, rule 4.408(a).)” (People v. Sandoval (2007) 41 Cal.4th 825, 848, fn. omitted.)
Here, the trial court did not abuse its discretion, as it based defendant’s upper terms on aggravating factors that were relevant to its decision: defendant’s criminal history and his status as a probationer when he committed these offenses. Defendant had an extensive criminal history for a young man. Over a span of only six years and from the ages of 13 to 19, he committed crimes, including those before us, which resulted in six sustained juvenile adjudications and three adult convictions. Three of those adjudications and convictions were felonies, and six of them involved weapons. Defendant did not hesitate taking guns into the public and threatening people with them. And this time, he acted in the name of a criminal street gang, making his behavior even more dangerous. He also continued to engage in violent acts while he was in custody with these charges pending. In addition, defendant was on probation at the time he committed the crimes before us.
These facts—engaging in violent conduct indicating a serious danger to society, already having numerous convictions and sustained petitions in juvenile delinquency, and committing these crimes while on probation—were all factors in aggravation relating to defendant as a person and to the crime he committed. (Rules 4.421(a)(2), (b)(1), (2), (4).) All adequately supported the court’s decision to impose the upper term for the assault with a firearm conviction.
Defendant, however, contends the trial court abused its discretion because it did not consider the circumstances of mitigation he presented to the court. He asserts the court did not consider evidence showing Savon swung first and defendant acted in self-defense, Savon had threatened to shoot Shockley at the house where Shockley and Bracamonte lived, and Savon had made an aggressive move towards Bracamonte. But the trial court’s oral statement indicates it did consider this evidence and rejected it. It expressly rejected the assertion that defendant acted in self-defense or in defense of Bracamonte, or that defendant went to Savon’s house to protect Bracamonte and Shockley. The court noted the jury also rejected this evidence.
Defendant contends the court abused its discretion because it based its decision on its belief that defendant should have tried to resolve the conflict without violence. The court noted defendant could have avoided violence if he had wanted to, but that was not the basis for the court’s decision. The court stated it imposed the upper term due to defendant’s long and worsening criminal record and his status as a probationer when he committed the crime.
At its base, defendant’s argument is a contention his crimes were not bad enough to justify the upper term. That they were not worse did not make them less aggravated for purposes of sentencing. Under the circumstances of this case, we cannot conclude the court abused its discretion in imposing the upper term for the assault with a firearm conviction.
C
Defendant Is Entitled To Remand For The Trial Court To Exercise Its Informed Discretion When Imposing Sentence For The Firearm Enhancement
Defendant also contends the recent amendment to section 12022.5 retroactively applies to him and, as such, his case must be remanded for the trial court to exercise its discretion to decide whether to strike the firearm enhancement. The People concede that the amendment retroactively applies to defendant and we agree. The People, however, argue remand is not necessary because the record demonstrates the trial court would not have exercised its discretion to lessen defendant’s sentence. On this point, we disagree with the People and remand defendant’s case for the trial court to exercise its informed discretion when sentencing defendant to the gun enhancement.
As we have noted, defendant’s sentence in this case includes a sentence enhancement of 10 years under subdivision (a) of section 12022.5 for personally using a firearm. At the time of his sentencing, the trial court had no power to strike the firearm enhancement. Under a recent amendment to section 12022.5, however, which was effective January 1, 2018, trial courts now have the power under subdivision (c) of the statute, “in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] 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.”
Defendant contends this amendment applies to his case because the Legislature expressly provided for the retroactive application of the amendment by specifying the new rule applies to “ ‘any resentencing that may occur.’ ” He further contends, based on In re Estrada (1965) 63 Cal.2d 740 and related cases, that the amendment applies to him because “[r]egardless of statutory intent,” defendants in nonfinal cases are afforded the retroactive benefit of subsequent legislative ameliorations in punishment.
The People agree that because the amendment provides discretion to impose a lesser sentence, and because there is nothing in the amendment to suggest the Legislature intended it to apply prospectively only, the presumption that the amendment applies retroactively prevails.
We agree with defendant and the People that the amendment to section 12022.5 retroactively applies to defendant. Under Estrada, “when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature.” (People v. Francis (1969) 71 Cal.2d 66, 75-76.) As the Supreme Court stated in Estrada, “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (In re Estrada, supra, 63 Cal.2d at p. 745.)
Here, the amendment to subdivision (c) of Penal Code section 12022.5, which took effect before the judgment in this case was final, necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice. Moreover, because there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to “apply to every case to which it constitutionally could apply,” which includes this case.
Our inquiry does not end here, however, because, although the People concede the amendment to section 12022.5 applies to defendant, they argue that because the trial court already exercised its discretion to impose the upper term for the firearm enhancement, “there is no reason to believe that the sentencing court would exercise its new discretion to strike” the firearm enhancement upon remand. (Bolding omitted.) We do not agree.
At the time of defendant’s sentencing, former section 12022.5 did not allow the court to strike the firearm enhancement but did permit the court to exercise its discretion to impose a lower, middle, or upper term of imprisonment. (§ 12022.5, subd. (a).) As described, the trial court stated its reasons on the record for imposing the upper term of imprisonment. With the enactment of the amendment, however, the Legislature signaled punishment under former section 12022.5, subdivision (a) “was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.” (See In re Estrada, supra, 63 Cal.2d at p. 745) The trial court was not aware the Legislature thought punishment was too severe under the statute applicable at the time. Such knowledge would have doubtlessly informed the sentencing court’s decision, and not just about whether to strike the enhancement but about which term of imprisonment is appropriate punishment for defendant’s conduct. “ ‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Because the court did not know the scope of its discretion, we conclude remand is appropriate.
The People cite People v. Gutierrez (1996) 48 Cal.App.4th 1894, to support the argument that defendant is not entitled to remand. In Gutierrez, the trial court “did not indicate that it had discretion to strike” a serious or violent felony conviction under the three strikes law. (Gutierrez, at p. 1896.) While the appeal was pending, the Supreme Court held in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 that trial courts have the discretion to strike a serious or violent felony conviction. (Id. at pp. 529-530.) Nevertheless, the court in Gutierrez decided “no purpose would be served” in remanding that case for resentencing because the trial court had “stated that imposing the maximum sentence was appropriate” and that “ ‘this is the kind of individual the law was intended to keep off the street as long as possible.’ ” (Gutierrez, at p. 1896.) We are not persuaded. That the trial court here elected the longest term it could impose
for the firearm enhancement, does not necessarily indicate that the trial court would not, if given the opportunity, elect to strike or impose a lesser sentence. This is especially so in light of the Legislature’s signal that punishment under the former section was too
severe. Accordingly, defendant is entitled to remand for the sentencing court to exercise
its informed discretion when imposing sentence for the firearm enhancement.
DISPOSITION
Defendant’s conviction is affirmed, but the case is remanded to the trial court for further proceedings consistent with this opinion. The superior court clerk is directed to amend the abstract of judgment to correctly state the enhancement on count three under section 186.22, subdivision (b)(1), is for three years, and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.



/s/
Robie, J.



I concur:



/s/
Hull, Acting P. J.




MURRAY, J., concurring and dissenting.
I concur in the majority opinion, except for part IIC of the Discussion, from which I respectfully dissent. It appears to me that remand would be futile and that no useful purpose would be served by remanding this matter for the trial court to consider whether to exercise its discretion granted under Senate Bill No. 620 (2017-2018 Reg. Sess.) to dismiss the firearm enhancement.
In People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), the court considered whether it should remand to allow the trial court to decide whether it would dismiss a strike conviction under Penal Code section 1385 following our high court’s decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The Gutierrez court concluded that “[u]nder the circumstances, no purpose would be served in remanding for reconsideration.” (Gutierrez, at p. 1896.) In reaching this conclusion, the Gutierrez court noted that the trial court had done the following at sentencing: “indicated that it would not, in any event, have exercised its discretion to lessen the sentence”; stated that “imposing the maximum sentence was appropriate”; imposed an upper term sentence on the base term; and imposed two discretionary one-year enhancements, which was not required under the three strikes law. (Gutierrez, at p. 1896.) Also, I note that the trial court stated that the defendant was “ ‘the kind of individual the law was intended to keep off the street as long as possible.’ ” (Ibid.) Here, the record is similar.
The trial court was fully familiar with defendant’s juvenile and criminal history. Defendant sustained six juvenile adjudications, three of which involved violence, one more of which involved the threat of violence, and two of which involved firearms. During each of the firearm-related offenses, defendant pointed a gun at the victim. When he was 17, defendant and another person beat a victim until he was unconscious and took the victim’s wallet and shoes. According to the probation report, defendant’s “overall adjustment on juvenile probation was deemed poor due to his continued involvement in criminal behavior,” his continued gang activity, and his violation of the “gang terms of probation.” As an adult, he was convicted of concealing a firearm in a vehicle. He was on probation at the time he committed that offense, and he was on probation when he committed the charged offenses in the instant case. While detained in jail during the pendency of this case, defendant was involved in “five major incidents,” three of which involved assaults on other inmates.
As the trial court noted, the record is “replete” with examples of defendant’s prior conduct demonstrating his prior “involvement with guns and violence.” The trial court also expressly noted that defendant did not take advantage of the opportunities available to him in juvenile court to disassociate himself from a criminal lifestyle. Also, the court noted defendant’s conduct while in custody, stating that defendant “continued to engage in violent acts, even though [he] [was] fully aware that [he] had charges pending.” The trial court described defendant’s prior conduct as a “pattern of anti-social environment behavior.”
The probation report found only one factor in mitigation, defendant’s youth. Defendant filed a statement in mitigation along with four letters requesting leniency, which the trial court reviewed. Counsel for defendant argued mitigation at the sentencing hearing, specifically requesting that the court impose the low term on the firearm enhancement. The trial court rejected the purported mitigation argued by the defense, concluding that defendant went to the victim’s home “with the idea that he potentially would use violence. Which he did.” It is apparent that the court considered defendant’s age because it expressly stated, “I never take pleasure in imposing sentences on people of your age.” The court then went on to state, “given [defendant’s] history with the criminal justice system, [his] continuing involvement in violent behavior, I do believe that the sentence I am about to impose is appropriate.” (Italics added.)
The majority concludes that because the trial court did not know of the scope of its discretion, remand is “appropriate.” (Maj. opn., ante, at p. 20.) I disagree. Remand will require the trial court to consider whether to exercise its discretion under section 1385 to dismiss the firearm enhancement in the interest of justice and state its reasons for doing so on the record. (§§ 12022.5, subd. (c), 1385, subd. (a).) But the trial court has already exercised its discretion to impose an upper-term sentence on the charge of assault with a firearm and on the firearm enhancement. Had the court been inclined to find mitigation warranting a lesser sentence, it seems clear to me that it would have done so and imposed mid- or lower-term sentences. Instead, the court imposed the sentences it expressly found to be appropriate. On this record, I see no useful purpose in remanding this matter for the trial court to consider a section 1385 dismissal of the firearm enhancement for this defendant, a gang member who had committed numerous crimes of violence and crimes involving firearms, and for whom the trial court expressly rejected mitigation arguments. (See Gutierrez, supra, 48 Cal.App.4th at p. 1896.)
There is no other reason to remand this matter. Unless defendant waives his presence, remanding means pulling defendant out of his prison programming and transporting him to Sacramento for a new sentencing hearing that, based on the record, will not change his actual prison time. I respectfully dissent from the portion of the majority opinion requiring remand.



/s/
MURRAY, J.