Filed 6/22/22 P. v. Duran CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed in part, reversed in part, and remanded with directions.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.

A man who had been sexually harassing defendant’s girlfriend was shot to death. Defendant’s girlfriend later testified that defendant admitted being the shooter. A friend of defendant, who received a reduced sentence in exchange for his testimony, likewise testified that defendant admitted being the shooter. When the police interviewed defendant, after giving him Miranda warnings,[1] defendant admitted once again that he was the shooter; however, he claimed, initially, that the shooting was an accident and later, that it was in self-defense.

In a jury trial, defendant was found guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189),[2] with an enhancement for causing death by personally and intentionally discharging a firearm (§ 12022.53, subd. (d)). Defendant also pleaded guilty to unlawful possession of a firearm. (§ 29800, subd. (a).)

In a bifurcated proceeding, after defendant waived a jury, the trial court found two prior prison term enhancements (§ 667.5, subd. (b)) to be true. Defendant was sentenced to 52 years to life in prison.

Defendant now contends that:

(1) The trial court erred by denying defendant’s motion to suppress his statement to the police because:

(a) The police continued to question defendant after he asked for an attorney.

(b) The statement was involuntary, in that defendant made it in response to threats and false promises by the police.

(2) The trial court erroneously failed to exercise its discretion to reduce the firearm enhancement to a lesser included enhancement.

(3) Under newly enacted legislation, the prior prison term enhancements must be stricken. (The People concede this point.)

We agree with defendant that the trial court failed to exercise its discretion to reduce the firearm enhancement. We also agree that the prior prison term enhancements must be stricken. Otherwise, we find no prejudicial error. Hence, we will remand for resentencing.

I

STATEMENT OF FACTS

Angel Monroy repeatedly “harassed and propositioned” Mayra Alvarado, who was defendant’s girlfriend and the mother of defendant’s child. On the night of February 21, 2015, Monroy was shot twice, fatally, in front of his mother’s house.

Alvarado testified that defendant admitted to her the next day that he shot Monroy “because of [her].”

Defendant’s friend Manuel Guerra had previously acted as a police informant, sometimes paid and sometimes unpaid. In exchange for his truthful testimony in this and other cases, he was to receive a suspended sentence, rather than up to 18 years in prison, in an unrelated matter.

Guerra testified that defendant admitted being the shooter. Defendant also told him that Yesenia Palomino, who lived in an apartment at the back of Monroy’s mother’s house, had “notif[ied] [defendant] when [it] was a good time for him to catch [Monroy] outside.” Guerra was present when defendant told two other friends about the shooting. Defendant imitated Monroy saying “fuck” and gasping for air.

At the instance of police, Guerra met with defendant while wearing a wire. Defendant said Palomino “conspired . . . in it. . . . That makes her an accessory.” When Guerra said, “[Palomino] don’t know what you did with the gun . . . ,” defendant said, “And even if anybody knew where it was at it’s so full of rust now.” “And then it was in pieces.”

On October 5, 2015, the police interviewed defendant in custody. At first, defendant denied recognizing a photo of Monroy. The police claimed that Palomino had told them that defendant was the shooter, and that they had text messages, video, and DNA evidence confirming this. Defendant still denied shooting Monroy. He did say Monroy was “stalking” Alvarado. “Scared my baby, you know?” He then claimed the shooting “was an accident”: “He bothered my girl so I went over there and argued . . . . I pulled the strap and then we fought for it.” “[H]e pulled on it and . . . it went off,” twice.

The police claimed they could prove this was “bullshit.” Defendant then admitted, “He was messing with my family so I shot him.” However, he claimed it was self-defense: “I had the gun out already, . . . to make sure he didn’t come near me,” but Monroy “kept coming at me.” “I . . . thought he was gonna take it from me an[d] fuckin’ shoot me with it.” Afterwards, defendant “cut [the gun] up in pieces” and left it in the Salton Sea. Other details of defendant’s statement also matched Guerra’s account.

At the suggestion of the police, defendant wrote a note to Monroy’s family. In it, he said, in substance, “that he was sorry for what occurred and that he . . . wants the family to know he was defending his family.”

Gunshot residue was found on the victim’s hands. This meant he “either discharged [a] firearm or was in the vicinity of the discharge of a firearm or came in contact with some surface that had gunshot residue on it.” Low-quality surveillance videos obtained from neighbors showed a confrontation between Monroy and one other person who walked up to his house.

II

THE ADMISSIBILITY OF DEFENDANT’S STATEMENTS TO POLICE

Defendant contends that the trial court erred by admitting his statements to the police, because they were involuntary and because they were obtained in violation of Miranda. We need not decide whether it erred in either respect, because we conclude that the admission of defendant’s statements was harmless beyond a reasonable doubt.

A. Additional Procedural Background.

The prosecution filed a motion in limine to admit defendant’s statement at the preliminary hearing. At the same time, defense counsel filed a motion to suppress the statement (§ 1538.5), as involuntary and as obtained in violation of Miranda.

The magistrate admitted the statement. She found that “the defendant did not make an unambiguous request for an attorney.” She also ruled that the “ruses” the officers had used in the interview did not make defendant’s statement involuntary.

At trial, defense counsel renewed the motion to suppress. (§ 1538.5, subd. (i).) The trial court denied the motion.

B. Harmless Error.

Neither the erroneous admission of an involuntary statement nor the erroneous admission of a statement in violation of Miranda requires reversal if it was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 310-312 [involuntary]; People v. Sims (1993) 5 Cal.4th 405, 447 [Miranda]; e.g., People v. Caro (2019) 7 Cal.5th 463, 493.) Under this standard, an error may be held harmless when “the evidence . . . is ‘of such compelling force as to show beyond a reasonable doubt’ that the erro[r] ‘must have made no difference in reaching the verdict obtained.’ [Citation.]” (People v. Harris (1994) 9 Cal.4th 407, 431, fn. omitted.)

Here, Alvarado, who was defendant’s girlfriend at the time of the shooting and the mother of his child, testified that defendant admitted that he shot Monroy because of her. Guerra, who was defendant’s friend, likewise testified that defendant admitted being the shooter. Admittedly, besides being defendant’s friend, Guerra was an informant who was testifying in exchange for a substantially reduced sentence. Nevertheless, his testimony was corroborated by defendant’s own statements while Guerra was wearing a wire. Defendant implicitly confirmed that he was the shooter by saying that Palomino “conspired . . . in it” and was “an accessory.” Defendant also admitted getting rid of the gun. At least as far as the evidence showed, the only person with a motive to kill Monroy was defendant. The shooter went to Monroy’s house with a gun, showing premeditation. And according to Guerra, defendant later boasted about how Monroy had sworn and gasped for air; this was inconsistent with accident or self-defense.

On this record, we are convinced, beyond a reasonable doubt, that even if defendant’s statements to the police had been excluded, the jury would have found him guilty of first degree murder. In fact, with one exception, his statements were the only exculpatory evidence. In them, defendant claimed that the shooting was either an accident or self-defense. Admittedly, his story kept changing, and the prosecutor noted this in closing argument. Still, if he did shoot the victim in self-defense, he might well try to tell the police first that he was not the shooter and, when they did not believe this, that it was an accident. His changing story did not make him significantly worse off than the other evidence already made him. The only other exculpatory evidence was that Monroy had gunshot residue on his hands. Expert testimony, however, showed this could occur merely from being “in the vicinity of the discharge of a firearm” — as Monroy surely was.

Defendant suggests that, but for the admission of his statements, he would have taken the stand. “Whether defendant would have testified in the absence of the need to respond to his confession and, if so, whether the confession would have been admitted for purposes of impeachment requires us to engage in speculation about the parties’ tactical choices. Because it is impossible to determine what might have happened had the trial proceeded differently, we conclude that prejudice should be evaluated on the basis of the evidence actually presented, while excluding the improperly admitted confession.” (People v. Bradford (2008) 169 Cal.App.4th 843, 855; accord, People v. Hicks (1971) 4 Cal.3d 757, 763 [finding error harmless beyond a reasonable doubt; ‘it is sheer speculation to argue that defendant . . . would have testified’” in the absence of the error].)

III

DISCRETION TO REDUCE THE FIREARM ENHANCEMENT

Defendant contends that he is entitled to a remand so the trial court can consider reducing the firearm enhancement to a lesser included firearm enhancement.

Senate Bill No. 620 (2017-2018 Reg. Sess.) became effective on January 1, 2018. (Stats. 2017, ch. 682.) It amended sections 12022.5 and 12022.53 so as to give the trial court discretion to strike a firearm enhancement. (§§ 12022.5, subd. (c), 12022.53, subd. (h).)

In April 2019, People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) held that this discretion to strike a firearm enhancement includes the discretion to reduce a greater firearm enhancement to a lesser included firearm enhancement, even when the lesser included enhancement has not been charged. (Id. at pp. 221-224.)

In August 2019, People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado I) disagreed. It held that a trial court has no discretion to reduce a firearm enhancement to a lesser included enhancement that has not been charged. (Id. at pp. 643-644.) In November 2019, the Supreme Court granted a petition for review in Tirado I.

Defendant was sentenced in October 2019, after both Morrison and Tirado I. Defense counsel asked the trial court to strike or stay the firearm enhancement:

“[DEFENSE COUNSEL]: . . . [T]he firearm allegation under 12022.53, the Court can stay or strike that.

“THE COURT: You can even exercise discretion to reduce it to one of the triads, right?

“[DEFENSE COUNSEL]: On the 12022.53, I don’t believe so.

“THE COURT: I thought we had that — anyway. Go ahead.

“[DEFENSE COUNSEL]: If he was not found guilty on the murder, it would be manslaughter and it would be reduced to a different 12022.5. [¶] In terms of the 12022.53, the Court does have discretion under 1385. I think 25 to life for this case, given the facts and circumstances surrounding this case, I think that would — I don’t think it would be unreasonable to exercise its discretion and strike the firearm . . . .”

“THE COURT: Don’t we have — I understand we have newly granted discretion to deal with the enhancement. Whereas, I thought there was — you could also consider alternates. I thought it was a triad or ten years, things of that nature.

“[PROSECUTOR]: I’m unaware of that, if that’s a recent change. I’m aware of the change within the last year or two that allows the Court to not impose that. . . . I can look into that, if the Court would like. In either case, I would argue this is not an appropriate case in which the discretion should be used to reduce it from the 25 to life enhancement.”

The trial court proceeded to impose the enhancement.

Recently, in People v. Tirado (2022) 12 Cal.5th 688 (Tirado II), our Supreme Court agreed with Morrison; it held that: “When an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53(d) enhancement, and the court determines that the section 12022.53(d) enhancement should be struck or dismissed under section 12022.53(h), the court may, under section 12022.53(j), impose an enhancement under section 12022.53(b) or (c).” (Id. at p. 700.)

Defendant is entitled to the benefit of the holding in Tirado II because this appeal was pending when it was decided. (People v. Sedeno (1974) 10 Cal.3d 703, 722, disapproved on other grounds by People v. Breverman (1998) 19 Cal.4th 142, 149, 165 and People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)

Defendant therefore argues that the trial court either was unaware of or did not exercise its discretion under Tirado II.

Preliminarily, the People argue that defense counsel invited any error by telling the trial court that it lacked discretion to reduce the enhancement. “‘Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.’ [Citation.]” (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 821-822.)

A careful reading of the exchange below shows that defense counsel did not invite the error now asserted. The trial court asked if it had “discretion to reduce it to one of the triads . . . .” Defense counsel responded, “On the 12022.53, I don’t believe so.” Significantly, section 12022.53 does not prescribe any “triad” sentences. The sentence under section 12022.53, subdivision (b) is a flat 10 years, under section 12022.53, subdivision (c) is a flat 20 years, and under section 12022.53, subdivision (d) is a flat 25 years to life. The only relevant triad sentence would be under section 12022.5, subdivision (a), which prescribes a sentence of 3, 4, or 10 years.

Thus, the trial court, fairly understood, was asking whether it had discretion to reduce the enhancement to an enhancement under section 12022.5, subdivision (a). And defense counsel, fairly understood, was saying no to that narrow question. He explained that the only way the trial court could impose an enhancement under section 12022.5, subdivision (a) would be if defendant were guilty of manslaughter rather than murder. He did not tell the trial court that it lacked discretion to reduce the enhancement to a lesser included enhancement under section 12022.53.

We turn, then, to the main issue. “When being sentenced, a defendant is entitled to decisions made by a court exercising informed discretion. [Citation.] A court acting while unaware of the scope of its discretion is understood to have abused it. [Citation.]” (Tirado II, supra, 12 Cal.5th at p. 694.)

“As a general rule ‘“a trial court is presumed to have been aware of and followed the applicable law.”’ [Citations.]” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398.) Here, however, even if we presume that the trial court was aware of Morrison and Tirado I, it could hardly have known which one the Supreme Court would ultimately endorse

The exchange shows that the trial court was only vaguely aware of its discretion, even under Morrison. It never discussed reducing the enhancement under section 12022.53, subdivision (d) to an enhancement under section 12022.53, subdivision (b) or section 12022.53, subdivision (c). Defense counsel merely asked it to stay or strike the enhancement. And the trial court merely asked about its discretion to reduce the enhancement to an enhancement under section 12022.5. The prosecutor indicated that only had discretion “to not impose” the enhancement at all.

“‘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.’ [Citation.]” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The trial court did not exercise informed discretion here (although its failure to do so was understandable under the circumstances).

A failure to exercise discretion is harmless if “the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ [Citations.]” (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.) We cannot say that is the case here. Defense counsel asked the trial court to strike or stay the enhancement for several reasons, including that defendant’s commission of the crime had been provoked by Monroy’s persistent harassment of Alvarado. The trial court could reasonably have accepted these arguments. The People do not even claim that the asserted error was harmless. Accordingly, we will remand for resentencing.

Defendant asks us to hold that the trial court has discretion to reduce the enhancement to an enhancement under section 12022.5. The People strongly disagree. We decline to decide this issue because it has not yet been raised in the trial court. “[T]here is simply no ruling for this court to review.” (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 371.) Moreover, we may never need to decide it. The trial court may refuse to reduce the enhancement; it may reduce it to an enhancement under 12022.53, subdivision (c) but refuse to reduce it any further; or it may rule that, even if it had discretion to reduce it to an enhancement under section 12022.5, it would not do so. The parties may raise this issue in the trial court on remand.

Finally, in a related argument, defendant contends that we should reverse and remand for resentencing under the ameliorative provisions of Senate Bill No. 81 (2021-2022 Reg. Sess.) (SB 81), effective on January 1, 2022. SB 81 amended section 1385, such that section 1385 now requires the trial court, in considering whether to dismiss an enhancement, to give “great weight” to certain specified mitigating circumstances; a few mitigating circumstances absolutely require dismissal. (§ 1385, subds. (c)2), (c)(3).)

We need not decide whether we would reverse and remand on this ground alone. We are already reversing and remanding for resentencing so the trial court can exercise its discretion under Tirado II. In resentencing — as the People concede — the trial court must also comply with SB 81.

IV

PRIOR PRISON TERM ENHANCEMENTS

Defendant contends that, under recently enacted legislation, his prior prison term enhancements must be stricken. The People concede the point.

We agree. Senate Bill No. 136 (2019-2020 Reg. Sess.), effective January 1, 2020, amended section 667.5, subdivision (b) so as to eliminate all prior prison term enhancements, unless the prior prison term was for a sexually violent felony. Defendant’s prior prison terms were not. As an ameliorative statute, Senate Bill No. 136 applies to all defendants whose conviction is not yet final. (People v. Cruz (2020) 46 Cal.App.5th 715, 739; see generally In re Estrada (1965) 63 Cal.2d 740, 744-748.) Hence, we will strike the prior prison term enhancement.

V

DISPOSITION

The judgment with respect to the conviction is modified by striking the two prior prison term enhancements. The judgment with respect to the sentence is reversed and the matter is remanded with directions to resentence defendant.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

CODRINGTON

J.

SLOUGH

J.

[1] Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

[2] All further statutory citations are to the Penal Code.