Filed 5/8/18 P. v. Morelos CA3
Prior 9/8/17 opinion vacated
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(San Joaquin)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

TOMAS MORELOS,

Defendant and Appellant.
C082866

(Super. Ct. No. LODCR201514479)



Defendant Tomas Morelos was convicted of attempted murder and assault with a firearm for shooting multiple rounds at an occupied truck. He challenges both convictions, contending there was insufficient evidence to establish the victim was inside the truck at the time of the shooting. Defendant further contends the trial court erred by denying his motion for a new trial, based on newly discovered evidence.
After we issued an opinion affirming the judgment and our Supreme Court denied his petition for review, defendant filed a petition to recall the remittitur and remand for resentencing, arguing he is entitled to the benefit of the recent amendments to Penal Code sections 12202.5 and 12022.53, which went into effect January 1, 2018, pursuant to Senate Bill No. 620. The bill grants trial courts the discretion to strike or dismiss firearm enhancements. We granted the petition to recall the remittitur, vacated our decision, and reinstated the appeal. In supplemental briefing, both parties agree defendant is entitled to the retroactive ameliorative effect of the amendment.
Accordingly, we will affirm the judgment and remand the case to the trial court for it to exercise its discretion under sections 12022.53, subdivision (h) and 12022.5, subdivision (c).
I. BACKGROUND
In July 2015, Maria Arreola broke up with Jorge Morelos, defendant’s brother. The two had been living together and had a three-year-old daughter, K. Arreola testified at trial that Jorge seemed “pretty upset” when their relationship ended. Arreola began dating Pedro Saavedra in August or September 2015.
On October 25, 2015, Jorge and defendant picked up furniture at Arreola’s apartment. The next morning, Arreola and Saavedra discovered two letters scratched on Saavedra’s truck. At trial, Arreola testified the letters were “G” and “B,” while Saavedra testified the letters were “G” and “V.” Later that day, Arreola and Saavedra met Jorge to pick up K. Saavedra testified that he was waiting in his truck when Jorge aggressively approached and asked him to get out. Saavedra refused and said, “ ‘I’m not gonna talk to you about this.’ ” Jorge told Saavedra he did not want Saavedra to be around K. anymore and warned, “ ‘Next time there’s not gonna be any talking.’ ” At trial, Arreola testified that Jorge said, “ ‘You want to say something, say it to my face,’ ” and Saavedra responded, “I don’t want to have any problems.”
On October 27, 2015, Arreola and Saavedra were out to dinner. Jorge called and said K. was sick and needed to go to the hospital. Sometime between 10:00 and 11:00 p.m., Arreola met Jorge and K. at the hospital, and Saavedra remained outside in the truck so he would not upset Jorge. Arreola noticed Jorge was on his cell phone but was unsure what he was doing. Later, Arreola saw people running inside the hospital. She called Saavedra to warn him that “something was going on,” and he responded, “ ‘I just got shot,’ ” and hung up.
Before Arreola called, Saavedra had been waiting outside in his truck when he noticed someone wearing black clothes walking in front of his truck toward the hospital. The person approached Saavedra’s truck and shot at him. As the shooter got closer, Saavedra recognized it was defendant. Saavedra, who weighed 320 pounds, crawled under the steering wheel and the seat, and defendant continued shooting. Saavedra testified he heard eight or nine shots, and police later found 14 nine-millimeter bullet casings at the scene, with bullet holes in the truck’s windshield, hood, and grill. When the shooting stopped, Saavedra opened his door to look and saw defendant run away. Saavedra ran inside the hospital and told people he had been shot.
Jeffrey Richards, a hospital security guard, was standing outside the hospital’s emergency exit doors when the shooting began, just after midnight. He saw a muzzle flash about 80 yards away, in the parking lot, with a black Ford truck in the direction of the muzzle flash. Richards was unable to see if there was anyone inside the truck and did not see anyone standing near the truck, but it was dark and he was far away from the truck. Richards saw but was unable to identify the shooter. Richards ducked behind a vehicle for cover and then ran inside to clear people out of the emergency waiting room. Approximately five minutes after the shooting began, Richards walked back into the waiting room and saw Saavedra. Richards asked Saavedra to put his hands up, and Saavedra complied. Richards searched Saavedra for weapons and injuries, but did not find any.
Richards spoke to police the night of the shooting and said Saavedra told him, “ ‘My truck just got shot up.’ ” In addition, Richards told police Saavedra denied being in his truck during the shooting and said he was not hurt. Richards remembered, “there being confusion as far as what [Saavedra] had already told the police and what he told me in regards to whether he was or was not in the vehicle.” A police officer testified that Richards was the “only one” who mentioned the possibility that Saavedra was not in the truck at the time of the shooting. At trial, Richards testified Saavedra said his truck had “been shot at.” Also, in contrast to what Richards told police, Richards testified Saavedra said he was in the vehicle at the time of the shooting. Saavedra also testified he told the security guards his truck was “shot up,” and he was in the truck at the time of the shooting. Saavedra testified he was nervous when talking to the security guards and was unsure at the time whether he had been shot.
After the shooting, Arreola, Saavedra, Jorge, and K. were put in a hospital room together. Although normally witnesses would be separated, two police officers interviewed all four together. Saavedra was “nervous,” “not very forthcoming,” and failed to make eye contact with the interviewing officer. He told the officer he did not know who shot at him. At trial, Saavedra testified he was afraid to let Jorge know he knew defendant was the shooter.
Later that morning, Arreola and Saavedra left for the Bay Area. Saavedra testified that Arreola was shocked and nervous, and they wanted to be in a safe place. That evening, Saavedra told Arreola that he knew defendant was the shooter. Arreola wanted Saavedra to be sure, because it was “serious,” and showed Saavedra a few photos of defendant from the Internet. Saavedra confirmed defendant was the shooter. Saavedra also noticed the initials “GV” in one of the photographs, “the same letters that were scratched in my truck the few days before.”
The next day, Saavedra contacted police to make another statement and met with them a few days later. This time, Saavedra said defendant was the shooter. He said he was sure because of a photo of defendant he had seen on the Internet, and because of the letters carved into his truck. Saavedra explained he was afraid to identify defendant in front of Jorge when he spoke to police at the hospital. Police presented a photo lineup, and Saavedra identified defendant.
Police arrested defendant during a traffic stop. After defendant’s arrest, the police searched his residence and found two boxes of ammunition in his bedroom, including a box with nine-millimeter ammunition. Three of the nine-millimeter bullets were “Federal” brand, the same brand as the nine-millimeter casings found at the scene of the shootings. Police also found a rifle scope in a hallway closet. On defendant’s cell phone, police found 11 photos of guns and people handling guns. Police also found four pictures of a “GV” logo, including the logo for the Grant Village apartment complex, where defendant lived, and a baseball hat with “GV cartel” written on it. In addition, there were four pictures of Saavedra’s truck.
Police analyzed defendant’s cell phone. The data showed seven texts and one call between defendant and Jorge’s phones on October 27, 2015, between 11:20 and 11:27 p.m. The cell tower data indicated defendant’s phone was near his residence during the activity. After a 29-minute break, cell activity resumed at 11:56 p.m., with additional activity at 12:02 a.m., 12:03 a.m., and 12:07 a.m. on October 28, 2015. All the activity was between defendant and Jorge’s phones, and cell tower data indicated defendant’s phone was used near the hospital where the shooting took place. The next cell activity occurred at 12:41 a.m., or 34 minutes later, and was not to Jorge’s phone. Cell tower data indicated this cell activity took place near defendant’s residence. According to police analysis, the drive between defendant’s residence and the hospital is 16 miles and takes approximately 25 minutes.
At trial, defendant testified he had “shot up” Saavedra’s truck in the hospital parking lot on October 28. In addition, defendant testified he had previously scratched “GV” (which stands for his apartment complex, Grant Village) into Saavedra’s truck because Saavedra had disrespected Jorge by being in a relationship with Arreola. The night of the shooting, Jorge told defendant he suspected “something fishy” was going on. Defendant feared Saavedra would be mad about the scratches on the truck, and he went to the hospital to make sure there was no trouble. Defendant testified he normally keeps a gun in his car and did not intend to shoot at Saavedra or murder him. When he arrived at the hospital, he saw Saavedra’s truck and “really wanted to mess it up this time.” Defendant got out of his car with his gun and began shooting. He did not see anyone inside the truck, which he examined from 20 feet away and testified he could “see clearly” into the truck. After he was done shooting, he ran back to his car and drove back home, throwing the gun out the window on the way. Defendant feared getting caught because he was on probation at the time of the shooting for a conviction in August 2015 for misdemeanor gun possession. Defendant testified his fear of getting in trouble also led him to lie to police about the shooting, including claiming he was home at the time of the shooting and denying the ammunition police found in his bedroom was his.
A jury convicted defendant of attempted murder (§§ 664, 187, subd. (a)—count 1) and assault with a firearm (§ 245, subd. (a)(2)—count 2). The jury also found true that defendant personally and intentionally discharged a firearm with respect to count 1, and used a firearm with respect to count 2. (§§ 12022.53, subd. (c), 12022.5, subd. (a).)
Prior to sentencing, defendant moved for a new trial based on Richards’ written security incident report, of which the parties were unaware until Richards testified at trial. The prosecution obtained a copy after the trial and provided it to defendant. According to Richards’ report, which he wrote 90 minutes after the incident and only after police had “cleared everything,” Saavedra had said just after the shooting that “his truck had been the target.” According to defendant, this contradicted Richards’ courtroom testimony stating that Saavedra said he had been shot at, and that there was confusion as to what Saavedra told police versus Richards. Defendant argued this would have been “another piece of evidence” for the jury to “consider in whether or not [Saavedra] was in fact in the [truck].” The trial court denied defendant’s motion, reasoning the statement was cumulative and did not contradict the strongest evidence against defendant. In addition, a different result was not probable, even if the statement was presented at retrial.
The trial court sentenced defendant to an aggregate 27 years in state prison, comprised as follows: seven years for count 1, plus 20 years consecutive for the firearm discharge enhancement, and three years for count 2, plus four years consecutive for the firearm use enhancement, stayed pursuant to section 654.
II. DISCUSSION
A. Sufficiency of the Evidence
“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.) A reviewing court does not reweigh evidence or reevaluate a witness’s credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
With respect to count 1 (attempted murder), the jury was instructed with CALCRIM No. 600, which properly stated the People must prove: (1) “defendant took at least one direct but ineffective step toward killing another person,” and (2) “defendant intended to kill that person.” With respect to count 2 (assault with a firearm), the jury was instructed with CALCRIM No. 875, which properly stated the People must prove: (1) “defendant did an act with a firearm that, by its nature, would directly and probably result in the application of force to a person;” (2) “defendant did that act willfully;” (3) “when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act, by its nature, would directly and probably result in the application of force to someone;” and (4) “when the defendant acted, he had the present ability to apply force with a firearm.”
Defendant challenges the verdicts on both counts, contending the evidence is insufficient to establish Saavedra was in the truck at the time of the shooting. According to defendant, the only evidence establishing Saavedra’s presence in the truck was Saavedra’s testimony, which was contradicted by Saavedra’s statements to Richards that “I wasn’t in [the truck] and I am not hurt,” and, “My truck just got shot up.” Defendant hypothesizes that, had Saavedra been in the truck during the shooting, he would have said, “Somebody shot at me, and oh, by the way, they shot at my truck.” In addition, defendant contends Saavedra’s testimony is not credible because (a) Richards did not search Saavedra for wounds, (b) the pattern of bullet holes is inconsistent with shooting at someone in the driver’s seat, (c) Saavedra was too heavy to have ducked under the steering wheel, (d) Saavedra lied to the police about the event, (e) there was ample evidence of “bad blood” between Saavedra, defendant, and Jorge, and (f) Richards should have seen Saavedra in the truck. We reject defendant’s invitation to reweigh the evidence and reevaluate Saavedra’s credibility.
Saavedra testified that he was “inside the truck” when defendant shot at him. As the jury was instructed, the “testimony of only one witness can prove any fact.” (See Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181 [“unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction”]; CALCRIM No. 301.) Moreover, Saavedra’s testimony was corroborated by Arreola, who testified Saavedra told her “I just got shot,” immediately after the shooting. Although Richards told the police Saavedra said he was not in the truck, Richards testified at trial that Saavedra said he was in the truck. In addition, the bullet holes were all in the truck’s front, suggesting defendant was shooting at someone sitting inside or trying to hide under the steering wheel. In sum, substantial evidence supports the jury’s verdict that defendant attempted to murder Saavedra and assaulted him with a firearm.
B. Motion for New Trial
Defendant contends the trial court erred in denying his motion for a new trial based on the discovery of Richards’ security incident report. According to defendant, the report affirms the police report by clarifying Saavedra told Richards that “his truck had been the target.” In addition, defendant argues, because this is the only statement of Saavedra recorded by Richards, the report suggests defendant was not shooting at Saavedra. Accordingly, defendant contends, the report would likely result in a different verdict on retrial. The People contend the report was not new evidence because defendant could have discovered it before trial with reasonable diligence or asked Richards about the report during trial. Additionally, the People contend the report was cumulative, did not contradict the strongest evidence against defendant, and would not likely result in a different outcome.
“In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘ “1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.” ’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)
“ ‘ “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” ’ [Citations.] ‘ “[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.” ’ [Citation].” (Delgado, supra, 5 Cal.4th at p. 328.)
Even if the report was newly discovered evidence, we agree with the trial court that it was cumulative and did not contradict the strongest evidence against defendant. (See Delgado, supra, 5 Cal.4th at p. 329.) Richards testified Saavedra “said that it was his truck that had been shot at.” In addition, Saavedra testified that, upon entering the hospital, he told security guards, “I was shot,” “I’ve been shot, my truck got shot,” and “[m]y truck just got shot up.” Also, a police officer testified Richards had told her Saavedra said just after the shooting, “ ‘My truck just got shot up.’ ” Despite defendant’s contentions, whether Saavedra said defendant shot at his truck does not establish Saavedra’s location during the shooting. We find no abuse of discretion.
C. Senate Bill No. 620
Prior to January 1, 2018, an enhancement under either section 12022.5 or 12022.53 was mandatory and could not be stricken in the interests of justice. (See former §§ 12022.5, subd. (c) & 12022.53, subd. (h), stats. 2010, ch. 711, § 5; People v. Felix (2003) 108 Cal.App.4th 994, 999.) Senate Bill No. 620 amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h) to permit the trial court to strike an enhancement for personally using (§ 12022.5, subd. (a)) or personally discharging (§ 12022.53, subd. (c)) a firearm. Under the new provisions, “[t]he 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.)
Unless there is evidence to the contrary, we presume the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) The Estrada rule has also been applied to amendments giving the court the discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.) Because defendant’s conviction is not yet final, the amended sections 12022.5 and 12022.53 apply to his case. The appropriate remedy is to remand for the trial court to exercise its discretion to strike the enhancements under sections 12022.5 and 12022.53. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
III. DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to exercise its discretion under sections 12022.5, subdivision (c) and 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1 & 2, eff. Jan. 1, 2018), and, if appropriate following exercise of that discretion, to resentence defendant accordingly.


/S/

RENNER, J.



We concur:


/S/

RAYE, P. J.


/S/

MAURO, J.