Filed 5/18/18 P. v. Garcia CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

SALVADOR PEDRO GARCIA,

Defendant and Appellant.
D071418



(Super. Ct. No. SCN340086-02)

APPEAL from a judgment of the Superior Court of San Diego County, Michael Kirkman, Judge. Affirmed in part, reversed in part, and remanded with directions.

Nancy J. King, 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, Scott Taylor and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Salvador Garcia of attempted voluntary manslaughter and assault with a semiautomatic firearm. (Pen. Code, §§ 664, 192, subd. (a), 245, subd. (b).) The jury also found that Salvador personally used a firearm during the commission of the offenses. (§ 12022.5, subd. (a).) On appeal, Salvador contends that the trial court erred in failing to answer two of the jury's questions during deliberations. In supplemental briefing, Salvador raised another issue: whether the case should be remanded to permit the trial court to exercise its discretion on whether to strike or dismiss his firearm enhancement under a statutory amendment that became effective on January 1, 2018. (§ 12022.5, subd. (c).) For reasons we explain, we affirm the judgment of conviction against Salvador but conclude that remand is appropriate
for the court to conduct a new sentencing hearing to consider whether to "strike or dismiss" the section 12022.5 firearm enhancement "in the interest of justice." (§ 12022.5, subd. (c).)
FACTUAL AND PROCEDURAL BACKGROUND
A few months prior to the shooting, Salvador insulted the sister of victim Gerardo M., causing animosity between Salvador and Gerardo. When they next saw each other, the unresolved animosity led to a physical fight between two groups of men in the parking lot of Gerardo's apartment complex. One group included Salvador, Jose, and two of their friends. The other group included Gerardo, his cousin, and friend, Erik R. Armed with guns, Salvador and Jose approached Gerardo's unarmed group. Erik, who was a former gang member, suggested that Salvador's group put their guns away and fight "one on one." Members of Salvador's group then began fist fighting with members of Gerardo's group.
During the fight, Salvador pointed a gun at Erik's head. Out of concern for Erik's life, Gerardo threw a beer bottle at Salvador's head, but missed. The fighting continued, Gerardo got shot in the torso, and fell to the ground. While Gerardo was down on his back, Salvador and his friend punched him. Next, Salvador pulled out the gun from his waistband area and shot Gerardo in the face. At that point, Gerardo's father was able to intervene and stop the fight. Salvador pointed his gun at several of Gerardo's family members while threatening to shoot. Salvador and Jose fled the area together.
Gerardo, who survived his gunshot wounds, and his sister identified Salvador as the shooter. Gerardo identified Jose as a person who had been holding a gun during the fight.
Salvador and Jose were charged with attempted murder (§§ 664, 187, subd. (a)) and assault with a semiautomatic firearm (§ 245, subd. (b)). The People additionally alleged that Salvador personally inflicted great bodily injury on Gerardo and used a handgun in the commission of the offenses (§§ 1192.7, subd. (c)(8) & (23), 12022.7, subd. (a)); personally used and/or discharged a firearm in the commission of the offenses (§§ 12022.5, subd. (a), 12022.53, subd. (d)); and suffered a prior strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12).
During Salvador and Jose's joint trial, the People's theory, with respect to attempted murder, was that (1) Salvador was guilty because he shot Gerardo and (2) Jose was guilty because he intended to aid and abet Salvador with committing assault with a semiautomatic firearm and that attempted murder was a natural and probable consequence of committing assault with a semiautomatic firearm. The court instructed the jury accordingly. The court also instructed the jury on the lesser included offense of attempted voluntary manslaughter based on heat of passion and imperfect self-defense.
After deliberating, the jury convicted Salvador and Jose of (1) attempted voluntary manslaughter and (2) assault with a semiautomatic firearm. (§§ 664, 192, subd. (a), 245, subd. (b).) For each offense, the jury made true findings on allegations regarding Salvador's personal firearm use and infliction of great bodily injury. (§§ 12022.5, subd. (a), 12022.7, subd. (a), 1192.7, subd. (c)(8) & (23).) In a bench trial, the court found that Salvador had a prior strike conviction under section 667.
The court sentenced Salvador to a prison term of 25 years for assault with a semiautomatic firearm. The court found a number of aggravating circumstances, but also found Salvador's "youth" to be a mitigating factor. As to Salvador's firearm enhancement, the court selected the "middle term" of four years (rather than 10 years), discussing as follows: "[W]ith regard to the gun use, given that interplay, given the extent to which there was a level of harsh words, actions, involving a separate group, I believe the middle term is appropriate. I take that into account as to the gun use, the actual allegation in imposing the 4- as opposed to the 10-year term as to Salvador. That, with regard to all of this, provides enough [to mitigate and] then balance the aggravated aspects of the case with the mitigated."
Salvador filed a timely appeal.
DISCUSSION
I. The Trial Court Acted Within Its Discretion in How It Responded to the Jury's Questions

Salvador contends that reversal of the jury's findings regarding his personal gun use and personal infliction of great bodily injury is required because the trial court incorrectly answered two of the jury's questions. We conclude the issue is not cognizable on appeal and in any event, the trial court did not abuse its discretion.
A. Additional Background
During deliberations, the jury sent the court a note, which read: "If we cannot determine who shot Gerardo, is it still within the law . . . to find one or both defendants guilty of any of the charges[?]" (Note 1).
Salvador's counsel expressed "a concern regarding whether his client could be convicted of the allegations on an aider and abettor theory," agreed with Jose's counsel that Note 1 "can't really be answered," and wished for the court to "just tell the jurors that they have instructions [and] they should refer to them." The prosecutor argued that the court should respond "yes" because it was a correct and concise answer. Jose's counsel stated his objections to the court's providing any substantive response and argued that if there was to be any response, then the "proper answer would [be] 'no.' "
The prosecutor and court continued discussing the possible implications of the jury's question. Ultimately, the court's proposed response to Note 1 was given to the jury as follows: "Depending upon how the jurors determine the facts of this case, the defendants, either or both, may be found guilty or not guilty of the charged offenses or any of the lesser offenses as a result of the application of an Aiding and Abetting theory of liability. I remind you that only defendant Salvador Garcia is charged with allegations attaching to the charges in this case, and that an Aiding and Abetting theory of liability cannot be used to establish such allegations."
The jury later sent the court another note that stated in pertinent part: "We all agree the victim was shot with a gun brought by Salvador Garcia. However, conflicting evidence does not allow us to identify the specific shooter. None of us understand the law well enough to know w[h]ether a guilty verdict is permitted for both defendants, without a specific, beyond reasonable doubt, identification of the shooter. Are we allowed to render a guilty verdict on Count 1 for both by applying Aiding & Abetting to both?" (Note 2).
Defense counsel indicated that they were making the "same objections" to the trial court's response to Note 2 as they had made to the court's response to Note 1. The trial court responded to Note 2 as follows: "I respectfully refer the Ladies and Gent[le]men of the Jury to among other instructions, CALCRIM 400, 401, and 402 which set forth Aider and Abettor theories of liability."
B. Analysis of Court's Responses to Jury's Questions
Salvador claims the court erred by not responding to the jury's two questions with a simple "yes," which he argues on appeal was the "only correct answer." Essentially, Salvador takes the position on appeal that the People took at trial.
We conclude that Salvador's claim is not cognizable due to defense counsel's successful opposition to the People's position at trial. Defense counsel opposed a "yes" answer to the jury's questions at trial and urged the court to refrain from providing a substantive response or, if anything, to answer "no." Salvador cannot now urge an answer to the jury's questions that he expressly opposed at trial. (People v. Roldan (2005) 35 Cal.4th 646, 729-730 ["There being the possibility counsel made a considered decision . . . we should not now give defendant a second bite at the apple."]; People v. Cooper (1991) 53 Cal.3d 771, 847 [successfully objecting to a response at trial precludes defendant from urging that response on appeal].)
In any event, we conclude the trial court did not err in its responses to the jury's questions. A court has a duty to clarify any instructional confusion expressed by the jury during deliberations. (§ 1138; People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) However, when "the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information . . . [i]ndeed, comments diverging from the standard are often risky." (People v. Beardslee (1991) 53 Cal.3d 68, 97, citation omitted.) "An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury." (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
In this case, it is undisputed that the jury was properly instructed on relevant theories of liability, including direct liability, aiding and abetting, and the elements that the People were required to prove regarding whether Salvador personally used a firearm and personally inflicted great bodily injury. The jury had full and complete instructions regarding the law.
Moreover, based on our review of the record, the trial court considered how to best aid the jury and reasonably concluded that the jury's ambiguous questions could not be answered with an unqualified "yes." As to Note 1 ("If we cannot determine who shot Gerardo . . . ."), for example, if the jury believed that neither Salvador nor Jose shot Gerardo, then neither defendant could be found guilty of attempted murder. A "yes" answer would have been legally incorrect or incomplete. The court acted within its discretion to provide a neutral, accurate response that tried to anticipate whatever direction the jury might be headed.
Regarding Note 2 ("Are we allowed to render a guilty verdict on Count 1 for both by applying Aiding & Abetting to both?"), the court acted within its discretion in directing the jury back to the relevant instructions, CALCRIM Nos. 400, 401, and 402, which correctly recited the law regarding when a defendant could be found guilty based on aiding and abetting. If the jurors could not agree that one of the defendants was the shooter and that the elements of aiding and abetting as to the other were met, then again, an unqualified "yes" would have been legally incorrect or incomplete. We discern no reversible error by the trial court.
II. Remand Under Amended Section 12022.5
At the time of sentencing, section 12022.5 prohibited the trial court from striking firearm enhancement allegations or findings. (Former § 12022.5, subd. (c).) The statute read: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Ibid.)
While this appeal was pending, on January 1, 2018, an amendment to section 12022.5, subdivision (c) became effective. (Stats. 2017, ch. 682, § 1; hereinafter referred to as Senate Bill No. 620.) The Legislature deleted the former prohibition, and the statute now reads: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.5, subd. (c).)
Salvador requests that we remand this case to allow the trial court to exercise its discretion to consider striking or dismissing his section 12022.5 firearm enhancement under this amended code section. He contends that because his judgment is not yet final, this court must apply the amendment retroactively under In re Estrada (1965) 63 Cal.2d 740, People v. Francis (1969) 71 Cal.2d 66, and other cases applying the Estrada rule.
The Attorney General concedes that, under controlling case law, amended section 12022.5, subdivision (c) must be retroactively applied to nonfinal judgments. For the reasons discussed in People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507, namely, that the Legislature intended Senate Bill No. 620 to be retroactively applied to nonfinal judgments, we accept the Attorney General's concession.
The Attorney General nonetheless argues that remand is not necessary because the trial court would not have exercised its discretion to lessen the sentence, citing People v. Gutierrez (1996) 48 Cal.App.4th 1894. In Gutierrez, the court concluded that remand for the trial court to exercise its discretion whether to strike a prior conviction was not needed because the trial court had "indicated" that even if it had the discretion, "it would not . . . have exercised its discretion to lessen the sentence." (Id. at p. 1896.)
This case is different. The record does not clearly indicate how the trial court would have exercised its discretion. Salvador's 25-year sentence consisted of (1) an 18-year term for assault with a semiautomatic firearm (§ 245, subd. (b)), doubled from nine years due to one prior strike (§ 667, subds. (b)-(e)); (2) a consecutive term of three years for the personal infliction of great bodily injury (§ 12022.7, subd. (a)); and (3) a consecutive term of four years for the personal use of a firearm (§ 12022.5, subd. (a)). The court selected the middle term for Salvador's firearm enhancement instead of the high term, discussing how a confluence of events involving a "separate group" led to the shooting. The court said nothing about whether it would have chosen to strike or dismiss the enhancement if it had the discretion to do so.
On this record, it is not clear the court would have imposed the same sentence if it knew it had the discretion to strike the firearm enhancement. It is thus appropriate to remand the matter to allow the trial court to exercise its discretion on the section 12022.5 firearm enhancement. We express no opinion on how the court should exercise its discretion.
DISPOSITION
Salvador's sentence is vacated and the matter is remanded for the limited purpose of allowing the trial court to consider whether the section 12022.5 firearm enhancement should be stricken or dismissed under section 1385. The trial court is directed to issue a new minute order and an amended abstract of judgment after such resentencing to reflect whether it strikes, dismisses, or imposes the section 12022.5 enhancement. The court


shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.



BENKE, Acting P. J.

WE CONCUR:



O'ROURKE, J.



IRION, J.