Filed 5/10/18 P. v. Ponce CA3
Received for posting 5/14/18
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
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THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTIAN PONCE,

Defendant and Appellant.


C084578

(Super. Ct. No. 16FE006206)


A jury convicted defendant Christian Ponce of attempted murder and discharging a firearm at an occupied motor vehicle. In connection with both offenses, the jury found true allegations of personal discharge of a firearm causing bodily injury, personal discharge of a firearm, and personal use of a firearm.
The trial court sentenced defendant to serve the low term of five years in prison for attempted murder plus 25 years to life for the firearm enhancement under Penal Code section 12022.53, subdivision (d).
In this appeal, defendant contends (1) defense counsel rendered ineffective assistance in failing to object to statements made by the prosecutor during closing argument and (2) remand is required because defendant is entitled to the benefit of the amendment of sections 12022.5 and 12022.53 that gives a sentencing court discretion to strike firearm enhancements. We conclude there was a tactical reason for not objecting and, in any event, there was no prosecutorial misconduct during closing argument. As to the firearm enhancements, we conclude remand is required to allow the trial court to exercise its discretion to strike defendant’s firearm enhancement.
FACTS
On March 16, 2016, the victim dropped defendant’s half sister off at her house where she lived with defendant, their mother and brothers. The victim and defendant’s half sister were in a dating relationship. The victim then drove to the house of a friend located less than five minutes away. Defendant, in his mother’s van, followed the victim and drove by the victim’s friend’s house a few times.
Defendant arrived home a few minutes after his half sister had been dropped off. Defendant gave his half sister a mean look. The half sister called the victim. Sometime thereafter, defendant left the house.
Meanwhile, the victim and his friends, B. and A., went to a store and returned to B.’s house. The victim told his friends to be careful. The victim parked his car and, about 20 seconds later, a white car drove by. Defendant, the passenger in the white car, fired three shots at the victim’s parked car with the victim and his friends still inside. Defendant fired a fourth shot that struck the victim in the face. The white car fled the scene.
At trial, the issue was the identity of the shooter. The prosecutor presented evidence defendant and the victim never got along. In December 2015, defendant and the victim physically fought. In another fight with defendant, the victim defended defendant’s half sister. A month before the shooting, someone slashed the tires and broke the windows on defendant’s work truck. Defendant believed the victim was the culprit and threatened to “slide on him,” or do something to him. Mother told defendant’s half sister not to say anything about the shooting. When defendant’s half sister told police defendant had shot the victim, mother kicked the half sister out of the house.
DISCUSSION
I
Prosecutor’s Closing Argument
Defendant contends defense counsel’s failure to object to the prosecutor’s improper argument about the lack of an alibi and defendant’s failure to testify constituted ineffective assistance. We reject this contention.
During closing argument, the prosecutor stated:
“Interesting. Nobody came in here and said he wasn’t home. Huh. They are so confident he didn’t do it. They believe in him. Why? If there was there -- the mom was here in the courtroom. If she was there on that day, because I believe [defendant’s half sister] testified that she was, why wouldn’t you come in and say, I saw him. He was home. I know he was home at that time.
“Because you can’t say that. In fact, not a single witness came in to say that. In fact, no one knows where he was, except the person he was in the car with who was driving him around. Because if there was someone he was with, anyone other than [the victim], I bet you that person would have come in here and testified.
“I bet you, just as you brought that witness in, you’re going to find who it was to be your alibi. It wasn’t me. It couldn’t have been me. You didn’t hear that.
“Now, I’m not slipping anything. I’m not telling you because of that he’s guilty. I’m just saying that witness did not come in. His whereabouts at that time are unexplained. And if they can be explained reasonably to you, I expect you would have had that explanation.” (Italics added.)
Defendant claims the first italicized statement violated his right to confront adverse witnesses and the second highlighted statement violated Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106]. While both claims of error are deemed forfeited because defense counsel did not object and request an admonition (People v. Fierro (1991) 1 Cal.4th 173, 212-213; People v. Gurule (2002) 28 Cal.4th 557, 609; People v. Arias (1996) 13 Cal.4th 92, 159), defendant contends counsel rendered ineffective assistance in failing to object.
Defendant claims there could have been no tactical reason for not objecting. We disagree. “An attorney may choose not to object for many reasons, and failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) The now-objected to portion of the prosecutor’s argument focused on the absence of any alibi witnesses. Defense counsel may have decided objecting would have emphasized the fact defendant did not have an alibi.
In any event, we conclude there was no prosecutorial misconduct. We reject defendant’s interpretation of the prosecutor’s argument. This portion of the prosecutor’s argument to the jury was, in context, referring to defendant’s failure to call alibi witnesses. The prosecutor argued the mother could have testified since she was living in the same house as defendant and was home according to defendant’s half sister. The prosecutor also argued that if defendant had been with someone else that evening, that person could have testified. The prosecutor’s argument, “It wasn’t me,” in context, was referring to the witnesses who would provide an alibi defense to support defendant’s claim of misidentification.
II
Firearm Enhancements
At sentencing, the trial court planned to follow the recommended sentence of the midterm for attempted murder plus 25 years to life in prison, but after argument from defense counsel, chose the low term. The court found in aggravation there was great violence, great bodily injury, the threat of great bodily injury, defendant used a weapon, the violent conduct posed a serious danger to society, and the crime appeared to have been planned. The court found in mitigation that defendant lacked a criminal record, he had been employed, led a productive life, and was youthful. The trial court sentenced defendant to serve a total of 30 years to life in prison, that is, the low term of five years for the attempted murder and 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The court imposed a consecutive one-third the midterm and stayed sentence on the discharging a firearm offense. The court stayed (§ 654) the section 12022.53, subdivision (d), enhancement attached to the discharging offense. With respect to the other firearm enhancements, the court stated it would “impose the most significant one, which is, . . . [section] 12022.53(d), which is 25 to life.”
When the trial court imposed sentence, the multiple firearm enhancements were mandatory and the trial court did not have any discretion to strike them. (Former §§ 12022.5, subd. (c), 12022.53, subd. (h) [“Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provision of this section”].) Effective January 1, 2018, sections 12022.5, subdivision (c), and 12022.53, subdivision (h), now allow a court to exercise discretion under section 1385 to strike or dismiss the enhancement imposed under that section: “The court may, in the interest of justice pursuant to Section 385 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.)
Generally, an amendment to the Penal Code is not retroactive but an exception applies when an amendment reduces the punishment for a particular crime or gives the sentencing court discretion to impose a lower sentence and the judgment is not yet final. (§ 3; People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740.) The People concede the amendment applies retroactively to defendant’s case because it is not yet final and remand is required. We agree the amendment applies in this case.
We agree with the parties remand is required. As defendant notes, multiple firearm enhancements were imposed. (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c) and (d).) The record does not clearly indicate the trial court would not have exercised its discretion to strike the section 12022.53, subdivision (d), enhancement had it been possible to do so at the time of the original sentencing. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; see also People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded to the trial court to exercise its discretion whether to strike the firearm enhancements, Penal Code sections 12022.5 and 12022.53, and to resentence defendant accordingly.



/s/
HOCH, J.



We concur:



/s/
BUTZ, Acting P. J.



/s/
RENNER, J.