People v. Damian CA3 ( 2021 )


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  • Filed 10/8/21 P. v. Damian CA3
    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                   C089940
    Plaintiff and Respondent,                                    (Super. Ct. No. 16FE019416)
    v.
    JOHN DAMIAN et al.,
    Defendants and Appellants.
    Defendants John Damian and Robert Deanda both participated in the last of a
    series of three shootings between members of three different gangs. Both defendants
    were convicted of, among other counts, assault with a semiautomatic firearm for their
    involvement in that shooting.
    On appeal, Deanda contends the trial court erred when it: (1) admitted evidence of
    a prior assault conviction; and (2) instructed the jury to continue its deliberations when
    there was no reasonable probability it would reach a verdict. Both Deanda and Damian
    contend their sentences included enhancements for prior prison terms, which should be
    1
    vacated based on the retroactive application of Senate Bill No. 136 (2019-2020 Reg.
    Sess.; hereafter Senate Bill 136). We conclude both defendants’ prior prison term
    enhancements should be stricken, will modify the judgment accordingly, and affirm the
    judgment as modified.
    FACTUAL AND PROCEDURAL BACKGROUND
    Because the testimony at trial was extensive, we will limit our recitation of the
    facts to those necessary to provide context to the issues on appeal. This case arises out of
    defendants’ participation in the third of three shootings involving members of the Varrio
    Garden Norteño, Varrio Valley Hi Norteño, and Red Krew Norteño gangs. The Varrio
    Garden and Varrio Valley Hi subsets were closely aligned but had “beef” at the time with
    the Red Krew subset, of which defendants were members. The prosecution introduced a
    variety of evidence regarding defendants’ gang membership, including a 2014 assault
    conviction of Deanda’s, which involved other gang members.
    In the first shooting, someone shot at three Varrio Garden/Varrio Valley Hi
    members and associates outside the home of B.Q., a Varrio Valley Hi member. One man
    was shot in the foot. No one was able to identify the shooters.
    In the second shooting, which occurred later the same morning, someone shot at
    the home of R.C., a Red Krew member. R.C. was not home at the time, but his mother
    was. When R.C. came home, he showed his mother a photograph on his cell phone and
    asked her if the photograph was of a person who was involved in the shooting. She said
    it was, and he left the house. A Varrio Garden/Varrio Valley Hi member later pleaded no
    contest to discharging a firearm at an inhabited dwelling in connection with this incident.
    The next day, the day of the third shooting, R.C. and his mother were packing up a
    trailer to move because the shooting had frightened her. Deanda, who went by the
    nickname “Choncho,” also came to the house. Deanda and R.C. talked at length, and
    both seemed more serious than usual. While Deanda was at the house, R.C. received a
    call in which the caller told him they had a location for “the person who shot up your
    2
    house.” R.C. said “[h]e was on his way.” Damian also stopped by in a green Ford
    Expedition, talked briefly with R.C., then left. Deanda and R.C. left together in a green
    Nissan Xterra. At the time, Deanda was heavyset and wore his hair loose or in a ponytail.
    There were inconsistencies within the victims’ testimony and, in some cases,
    conflicting accounts between witnesses, about the third shooting. Later that evening, two
    of the victims, along with J.V., a Norteño, parked a black Chevy Impala near B.Q.’s
    house, where the first shooting had occurred. J.V. told the others there could be problems
    with the Red Krew Norteños. J.V. went across the street to talk with someone at the
    house, while the two victims waited in the car. A green Expedition then stopped at a
    nearby intersection. Approximately three people got out of the Expedition and started
    shooting towards the house.1 B.Q. returned fire from the house. The two victims from
    the Impala denied that anyone in the Impala fired any shots.
    Several witnesses described four to six individuals shooting at each other in the
    street. Multiple witnesses identified one of the shooters near the Expedition as a heavyset
    Hispanic man with longer hair or a ponytail. Witnesses described a man, later identified
    as R.C., fall when he was shot, and seeing a truck or SUV flee the scene. R.C. was shot
    and killed during the shooting. A 911 call also reported the shooters leaving the scene in
    an Expedition.
    Nearby surveillance cameras captured a green Expedition near the crime scene
    shortly before and after the shooting. Data from Damian’s cell phone also indicated it
    was in the area at the time of the shooting.
    Police arrested Damian driving a green Expedition the day after the shooting.
    They found ammunition in the vehicle, and the vehicle had damage consistent with bullet
    strikes. Tests for gunshot residue particles in the Expedition were consistent with a
    1 The victims testified to different numbers of shooters and their testimony was, in some
    cases, different than what they had previously told police.
    3
    firearm being fired inside or slightly outside the vehicle, or with someone firing a firearm
    before touching the ceiling of the car. Police arrested Deanda during a probation search
    the same day.
    Both defendants were charged with three counts of assault with a semiautomatic
    firearm (Pen. Code, § 245, subd. (b); counts one, three, & four),2 one count of
    discharging a firearm at an occupied motor vehicle (§ 246; count two), and one count of
    felon in possession of a firearm (§ 29800, subd. (a)(1); count five). Damian was also
    charged with possession of ammunition. (§ 30305, subd. (a)(1); count six.) The
    prosecution alleged criminal street gang enhancements (§ 186.22, subd. (b)(1), (4)) as to
    counts one through five, and personal use of a firearm enhancements (§ 12022.5,
    subds. (a), (d)) as to counts one, three, and four. Finally, the prosecution alleged Damian
    had served prior prison terms for a 2012 conviction of assault by force likely to cause
    great bodily injury (§ 245, subd. (a)(4)) and a 2014 conviction for felon in possession of a
    firearm (§ 29800, subd. (a)(1)), and Deanda had served a prior prison term for a 2014
    conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), which constituted a
    prior strike (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667,
    subd. (a)).
    The jury found defendants guilty on counts one and five, guilty of the lesser
    included offense of shooting a firearm in a grossly negligent manner (§ 246.3) on count
    two, and Damian guilty on count six. The jury deadlocked on counts three and four and
    the court declared a mistrial as to those counts.3 The jury found the personal use of a
    firearm and gang enhancements not true. The court found the prior conviction and prior
    prison term allegations true. The court sentenced Damian to an aggregate term of 13
    2   Undesignated statutory references are to the Penal Code.
    3B.Q. was the victim alleged for count one, and the two victims who arrived in the
    Chevy Impala were the victims alleged for counts three and four.
    4
    years, including one year for each of the two prior prison terms. The court sentenced
    Deanda to an aggregate term of 25 years 8 months, and stayed punishment for the single
    prior prison term enhancement.
    DISCUSSION
    I
    Admission of Prior Conviction
    Deanda contends the trial court abused its discretion and violated his right to due
    process of law when it allowed the prosecution to introduce evidence of his prior assault
    conviction as a predicate offense to prove a pattern of criminal activity and as evidence of
    his motive and intent. We disagree.
    A.     Additional Background
    Before trial, the prosecution filed a motion in limine to admit evidence of
    Deanda’s prior conviction. In the incident, Deanda, along with others, surrounded a
    victim who was a Norteño dropout, and yelled, “[t]his is RKN” and “dropout.” One of
    the other individuals threw a glass bottle at the victim and hit him in the face. The
    prosecution asked to admit the conviction as evidence that Deanda “was with other RKN
    gang members in 2014” and also as evidence of motive and intent under Evidence Code
    section 1101, subdivision (b) in that perceived disrespect to the Red Krew Norteños
    motivated the 2014 assault as well as the current offenses. The prosecution also noted the
    2014 assault was more probative than other gang evidence it planned to introduce in that
    the assault showed Deanda “is willing to participate with other gang members to commit
    violent acts against other people.”
    The trial court agreed with the prosecution, concluding the incident was “highly
    probative . . . to show that the defendant is not just a bit player. Mr. Deanda is . . .
    engaged and immersed in his gang if he would go so far as to attack another person for
    dropping out.” Moreover, the violence in the 2014 assault was “fairly minimal compared
    to the violence” in the current offenses, and there was “no accusation that Mr. Deanda
    5
    personally used a weapon in any way.” Finally, the court observed the incident was
    probative of Deanda’s motive and intent because “there is even a greater reason arguably
    to use violence [in the present case] because violence had been used against their gang.
    There had been prior shootings involved.” Thus, the court allowed the evidence to “come
    in for motive and intent under [Evidence Code section] 1101 [subdivision (b)].”
    At trial, Deanda renewed his objection to the introduction of the prior conviction
    and the court overruled the objection. The prosecution presented testimony from the
    mother of the 2014 assault victim, who testified her son had been attacked in front of her
    apartment. She stated one of the attackers was named “Choncho,” that he was a “big
    guy,” and he “threw a lighter or something like that” at her son. One of the other
    attackers got a glass bottle and threw it at her son, hitting him in the eye. Immediately
    after her testimony, the court instructed the jury only to consider the testimony for the
    “limited purpose of whether or not he had the motive or intent to do the crimes which
    he’s charged with here today and for no other purpose than that.” The court promised a
    more detailed instruction later on, and read CALCRIM Nos. 375 and 1403, which limited
    the purposes for which the jury could consider uncharged offenses and gang activity,
    respectively, at the close of evidence.
    The prosecution also introduced a variety of other evidence of Deanda’s gang
    membership, including pictures of tattoos and police contacts with him associating with
    gang members. A gang expert opined that the current offenses were committed for the
    benefit of the Red Krew Norteños to instill fear in gang rivals.
    B.     Analysis
    Evidence Code section 1101 prohibits the admission of “evidence of a person’s
    character” or propensity evidence “when offered to prove his or her conduct on a
    specified occasion.” (Evid. Code, § 1101, subd. (a).) Section 1101, however, does not
    prohibit, “the admission of evidence that a person committed a crime . . . when relevant
    to prove some fact . . . other than his or her disposition to commit such an act.” (Id.,
    6
    subd. (b).) When evidence of a prior conviction may be admitted under subdivision (b)
    of section 1101, its admission must still comport with other policies limiting the
    admission of evidence, such as those contained in Evidence Code section 352. (People v.
    Thompson (1988) 
    45 Cal.3d 86
    , 109.)
    To prove the gang-enhancement allegations, the prosecution was required to
    establish, among other things, that the gang’s members engaged in a pattern of criminal
    activity. (People v. Williams (2009) 
    170 Cal.App.4th 587
    , 608-609; § 186.22,
    subds. (b)(4), (e), (f).) A “ ‘pattern’ ” is established by the commission of two or more
    offenses enumerated in section 186.22, subdivision (e), committed on separate occasions
    or by two or more persons. (People v. Williams, at p. 609.) The prosecution was also
    required to prove that the defendant committed the underlying offense “ ‘with the specific
    intent to promote, further, or assist in any criminal conduct by gang members.’ ”
    (§ 186.22, subds. (b)(1), (4); People v. Albillar (2010) 
    51 Cal.4th 47
    , 64.)
    Defendant does not dispute that evidence of his prior assault conviction, which is
    among the offenses enumerated in section 186.22, subdivision (e), was relevant and
    admissible under Evidence Code section 1101, subdivision (b) as “a predicate offense for
    purposes of the charged gang enhancement” or to “prove motive and intent for purposes
    of the same gang enhancement.” Rather, he contends that evidence of the conviction
    should have been excluded under Evidence Code section 352 as unduly prejudicial.
    “Without doubt, evidence a defendant committed an offense on a separate
    occasion is inherently prejudicial. [Citations.] But Evidence Code section 352 requires
    the exclusion of evidence only when its probative value is substantially outweighed by its
    prejudicial effect. ‘Evidence is substantially more prejudicial than probative [citation]
    [only] if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or
    the reliability of the outcome” [citation].’ [Citation.]” (People v. Tran (2011) 
    51 Cal.4th 1040
    , 1047 (Tran).) Our Supreme Court has “identified several factors that might serve
    to increase or decrease the probative value or the prejudicial effect of evidence of
    7
    uncharged misconduct and thus are relevant to the weighing process required by
    Evidence Code section 352.” (Ibid.) “The probative value of the evidence is enhanced if
    it emanates from a source independent of evidence of the charged offense because the
    risk that the witness’s account was influenced by knowledge of the charged offense is
    thereby eliminated. [Citation.] On the other hand, the prejudicial effect of the evidence
    is increased if the uncharged acts did not result in a criminal conviction. This is because
    the jury might be inclined to punish the defendant for the uncharged acts regardless of
    whether it considers the defendant guilty of the charged offense and because the absence
    of a conviction increases the likelihood of confusing the issues, in that the jury will have
    to determine whether the uncharged acts occurred. [Citation.] The potential for
    prejudice is decreased, however, when testimony describing the defendant’s uncharged
    acts is no stronger or more inflammatory than the testimony concerning the charged
    offense. [Citation.]” (Ibid.)
    Here, the evidence of Deanda’s 2014 assault was probative in that it provided
    direct evidence of a predicate offense. (Tran, 
    supra,
     51 Cal.4th at p. 1048.) It was also,
    as the trial court noted, probative of Deanda’s motive and intent, in that it showed
    Deanda was not a “bit player” in the Red Krew Norteños and had previously acted
    violently with other gang members in response to a perceived act of disrespect to the
    gang, just as the prosecution alleged he responded in the current offenses. The conviction
    occurred approximately two years before Deanda’s arrest on the current charges and the
    evidence came from an independent source that could not have been influenced by
    knowledge of the charged offense, enhancing its probative value. (Id. at p. 1050; People
    v. Zepeda (2001) 
    87 Cal.App.4th 1183
    , 1212.)
    Deanda was convicted of the assault, so there was little danger of confusing the
    issues by requiring the jury to determine if defendant was guilty of both the charged
    offense and the assault, and no risk the jury might convict defendant to prevent him from
    escaping punishment. (Tran, 
    supra,
     51 Cal.4th at p. 1047.) The evidence concerning the
    8
    prior conviction was less inflammatory than the testimony about the current offense.
    (Ibid.) Although the victim in the assault was injured in the eye after defendant and other
    gang members threatened him for dropping out of the gang, the current charges alleged
    defendant engaged in a gun fight in a residential neighborhood in which someone was
    shot and killed. The jury in the current case also heard 911 calls with descriptions of the
    decedent’s injuries that were at least as graphic as the short description of the assault
    victim’s bloody face. Moreover, the jury was instructed that it could not consider the
    evidence of gang activity to prove Deanda was a person of bad character or that he had a
    disposition to commit crime, mitigating the prejudicial effect of the evidence. (People v.
    Cage (2015) 
    62 Cal.4th 256
    , 275.)
    Deanda contends there was so much evidence of his motive and intent, including
    “evidence that the charged shooting was committed as retaliation, the uncontested
    evidence that Deanda was a Red Krew Norteño gang member, and the gang expert’s
    testimony about gang culture” that the prior conviction was cumulative and had little
    probative value. Instead, Deanda suggests, the court could have admitted merely the
    evidence of the conviction itself, rather than the underlying facts. But, as the People
    point out, the facts of the 2014 assault were important in that they showed Deanda
    retaliating in a violent way with other gang members in response to disrespect towards
    the gang. (People v. Zepeda, supra, 87 Cal.App.4th at p. 1212.) The prosecution was
    required to establish the required elements of the enhancements, including intent, beyond
    a reasonable doubt, and it had the “ ‘right to introduce all relevant and admissible
    evidence toward that end.’ ” (People v. Chhoun (2021) 
    11 Cal.5th 1
    , 29; People v.
    Salcido (2008) 
    44 Cal.4th 93
    , 147 [“the prosecution is not required to . . . ‘. . . present its
    case in the sanitized fashion suggested by the defense’ ”].) The trial court did not abuse
    its discretion in admitting evidence of defendant’s 2014 assault conviction. And, because
    we conclude the evidence was properly admitted under state law evidentiary rules, we
    also reject defendant’s constitutional argument. (People v. Hovarter (2008) 
    44 Cal.4th
                           9
    983, 1010 [“The ‘routine application of state evidentiary law does not implicate [a]
    defendant’s constitutional rights.’ [Citation.]”].)
    II
    Instruction to Continue Deliberating
    Deanda argues the trial court prejudicially erred because it asked the jury to
    continue deliberating after the jury had declared a deadlock. Specifically, he contends
    “[n]othing said by the jurors . . . supports a reasonable probability that the jury could
    reach an agreement,” and the trial court thus “abused its discretion under section 1140 by
    requiring the jury to continue deliberating.” We disagree.
    A.     Additional Background
    The jury began its deliberations in the afternoon on February 22. After breaking
    for the weekend, the jury resumed deliberations on February 25. During the week of
    February 25, the jury requested the readback of testimony for several witnesses, asked for
    clarification on the law regarding aiding and abetting, announced it was deadlocked, then
    shortly thereafter asked to continue deliberations and asked for the readback of more
    testimony.
    On the following Monday, March 4, the court replaced a juror with an alternate
    based on the juror’s childcare and business responsibilities. Shortly after beginning
    deliberations, the jury requested a readback of two witnesses’ testimony. The next
    morning, March 5, the jury sent a message to the court stating they were deadlocked and
    were “unable to come to a unanimous decision with the exception of count 6.”
    The court summoned the jury and noted they had been deliberating for
    approximately a “day and a half.” The jury foreperson explained they had taken multiple
    ballots on counts one through five, and the ballot numbers had changed between each
    ballot.
    The court reminded the jury the court was available to answer legal questions, to
    provide readback of testimony, or to allow the attorneys to reargue issues if it would be
    10
    helpful. The court asked the foreperson if “any of the things I’ve suggested to you that
    are possibilities . . . might be helpful to . . . this jury in coming to a decision on this case,”
    and the foreperson replied, “[a]bsolutely.” The court then asked the jury to continue
    deliberating.
    Later that day, the jury submitted five legal questions about assault, aiding and
    abetting, and shooting a firearm at an occupied vehicle. The jury then left on recess for a
    juror’s vacation from March 7 to March 18.
    When the jury returned on March 19, the court answered the jury’s questions, and
    the jury asked for a readback of testimony for eight witnesses and closing arguments.
    The court explained closing arguments are not evidence and could not be read back. On
    March 20, the jury requested a readback of testimony for four additional witnesses.
    On March 21, the jury asked for a readback of one witness, then announced,
    “After having testimony read back, receiving clarification on the law and multiple votes
    for each defendant, on each count, we are a hung jury. [¶] We do not feel we will be
    able to reach a unanimous vote on any of the counts with the exception of count 6.”
    Shortly after sending this message, the jury recessed for a juror’s afternoon medical
    appointment.
    On the morning of March 22, outside the presence of the jury, the court observed
    the jury had “been busy all week since they were back from vacation,” and stated it “was
    not inclined to do anything further. I would have given them a firecracker instruction last
    time, because I felt like we had substituted in various alternates, and they had to restart.
    But since I went through some of that with them, they have done a lot of the things I
    suggested. I don’t think there is much more we can do. There is a point at which it’s
    difficult to keep sending jurors back. [¶] . . . [¶] There is a point at which you can only
    ask for so much, so I am not inclined to send them back out, but I am going to see what
    they have to say. There are certainly things that could change my mind on that issue.”
    11
    The court then brought the jury in for questioning. The foreperson explained they
    had taken multiple ballots and that earlier in the week, the ballot numbers had been split
    8-4 on count one and 7-5 on the remaining counts for Deanda. The numbers in a ballot
    taken on March 21 had then changed to 10-2 for counts one and two, and 9-3 on the
    remaining counts.
    The court reminded the jurors of the various options the court had to assist in the
    deliberations, including answering legal questions, reading back testimony, or having the
    lawyers reargue points for the jury. The court then asked, “Do you think any of those
    things would assist . . . the jury in coming to a decision?” Ten of the jurors said no, but
    Juror No. 4 responded, “I do,” and Juror No. 5 said, “I’m on [the] fence.”
    The court asked Juror No. 4 “which of those three things that I suggested do you
    think could be of assistance,” and Juror No. 4 replied, “Um, maybe more of the law.”
    The court posed the same question to Juror No. 5, who replied, “I believe that the jurors
    who say that they don’t think that anything would help, I believe they are firm in their
    stance. [¶] I just believe that we could have come to an agreement and had a verdict.
    Notwithstanding what their answers are, they don’t believe it, so . . . .”
    The court had an off-the-record chambers conference, then returned to the
    courtroom and stated:
    “I spent some time discussing this with the lawyers in chambers, and my view is
    that if there is even a single juror on this jury that has a legal question, that I do have an
    obligation to answer that question.
    “Juror No. 4 has indicated that there is a legal question that perhaps the Court
    could clarify, and so I am going to remind the jurors that in 3550 of the instructions,
    which is the concluding instruction that you have, it does indicate that communications to
    the Court can be by the foreperson or by any single juror.
    12
    “So if Juror No. 4 has a question, you can either go through the foreperson, or you
    can write out your question yourself on one of the jury questionnaire forms that the Court
    has provided you with, and the Court will then do its best to answer that question for you.
    “So at this time I am going to send the jury back to continue deliberations. I’ll
    await your questionnaire or question.”
    The jury left the courtroom and the court stated the defense attorneys “are both, I
    think, strenuously objecting to the Court sending the jury back out, and I will tell you that
    I had every intention, based on my initial interaction with the jury here, to declare a
    mistrial, until Juror No. 4 indicated that there is a legal question that the Court might be
    able to answer for her.” The court explained:
    “I think that the Court does have an obligation, when a jury is out, to answer their
    legal questions if it’s possible to do so, and so I think I needed to send them out so that
    they could ask that question.
    “I don’t feel that it is coercive at this point to send them out once somebody is
    saying, I have a question I would like to ask. So that’s why I did it.
    “I have not given the so-called firecracker instruction at this point. I just sent them
    back to ask that question. Hopefully we’ll get our question soon, and we can answer it.”
    Both defense attorneys then put their objections more fully on the record. The
    jury did not submit any questions, but returned later that afternoon, announcing they
    would be returning verdicts “on Counts 1, 2, and 5 for both defendants, and count 6 for
    John Damian. We are hung on counts 3 and 4 for both defendants.”
    B.     Analysis
    Section 1140 provides that “the jury cannot be discharged after the cause is
    submitted to them until they have agreed upon their verdict and rendered it in open court,
    unless by consent of both parties, entered upon the minutes, or unless, at the expiration of
    such time as the court may deem proper, it satisfactorily appears that there is no
    reasonable probability that the jury can agree.” “ ‘The determination whether there is
    13
    reasonable probability of agreement rests in the discretion of the trial court. [Citations.]
    The court must exercise its power, however, without coercion of the jury, so as to avoid
    displacing the jury’s independent judgment “in favor of considerations of compromise
    and expediency.” [Citation.]’ [Citation.] The question of coercion is necessarily
    dependent on the facts and circumstances of each case. [Citation.]” (People v. Sandoval
    (1992) 
    4 Cal.4th 155
    , 195-196.)
    In People v. Thomas (1991) 
    231 Cal.App.3d 299
     (Thomas), the appellate court
    considered a similar set of circumstances. There, the jury informed the trial court it was
    deadlocked, and each juror said it would not be productive to continue deliberations. (Id.
    at p. 302.) The trial court asked for “a show of hands in response to the question, ‘Do
    you think it would be at all helpful to you if the court gave you further instructions on the
    law,’ ” and only one juror raised their hand. (Ibid.) The trial court asked the jury to
    continue deliberating and reminded the jurors they could ask the court for clarification on
    the law. (Ibid.) The jury returned to the jury room, did not ask any further questions, and
    reached a verdict shortly thereafter. (Ibid.)
    The appellate court determined there was nothing improper about the trial court’s
    actions, noting that asking “the jury to consider whether further instruction on the law
    would assist them in reaching a verdict . . . was entirely within the scope of the court’s
    discretion.” (Thomas, supra, 231 Cal.App.3d at p. 303.) Importantly, “[t]he court made
    no remarks that could reasonably be interpreted as coercive, nor did it urge the jury to
    come to an agreement on either of the counts.” (Ibid.) Thus, there was “no impropriety
    in the court’s management of the impasse in the jury’s deliberations.” (Id. at p. 304.)
    Here, the jury had previously stated they were deadlocked, but when informed
    they could submit legal questions or ask for a readback of witness testimony, submitted
    several legal questions, and returned to deliberations. Thus, when the jury stated it was
    deadlocked again, but one or two jurors indicated the possibility that additional legal
    instruction could be helpful, it was logical for the court to conclude the jury had
    14
    unanswered legal questions that could help resolve the deadlock, even assuming such a
    possibility was speculative on the parts of the jurors. (People v. Pride (1992) 
    3 Cal.4th 195
    , 264-266 [no abuse of discretion where three jurors were “ ‘unsure’ ” or “ ‘hopeful’ ”
    that continued deliberations would be helpful because “direction to continue deliberations
    could only have been perceived as giving jurors an opportunity to enhance their
    understanding of the case, rather than as pressure to reach a verdict”].) And, as in
    Thomas, the court avoided any comments that could be construed as coercive, and merely
    sent the jury back to determine whether the jury as a whole or any individual juror had a
    legal question the court could answer. (Thomas, supra, 231 Cal.App.3d at p. 303.) We
    conclude the trial court did not abuse its discretion in directing the jury to continue its
    deliberations.
    III
    Prior Prison Term Enhancements
    Both defendants contend, and the People agree, that Senate Bill 136, which limits
    the prior offenses that qualify for a prior prison term enhancement under section 667.5,
    subdivision (b), applies retroactively to his case. We agree with the parties.
    Signed by the Governor on October 8, 2019, and effective January 1, 2020, Senate
    Bill 136 amends section 667.5, subdivision (b), to eliminate the one-year prior prison
    term enhancement for most prior convictions. (Sen. Bill 136 (2019-2020 Reg. Sess.)
    § 1.) An exception, not applicable here, is made for a qualifying prior conviction on a
    sexually violent offense, as defined in Welfare and Institutions Code section 6600,
    subdivision (b).
    Because Senate Bill 136 became effective before judgment becomes final, we
    agree with the parties that the amended law will apply to defendants retroactively.
    (Accord, People v. Lopez (2019) 
    42 Cal.App.5th 337
    , 340-342 [Senate Bill 136 applies
    retroactively to cases not yet final on appeal]; People v. Jennings (2019) 
    42 Cal.App.5th 15
    664, 680-682 [same].) Accordingly, the section 667.5, subdivision (b) enhancements
    must be stricken.
    Because the trial court imposed the maximum terms for both defendants, we need
    not remand the matter for resentencing. (People v. Francis (2017) 
    16 Cal.App.5th 876
    ,
    887 [remand unnecessary where court could not alter sentence to compensate for the loss
    of enhancements].) We will modify the judgment to strike Damian’s two 1-year prior
    prison term enhancements and Deanda’s one 1-year prior prison term enhancement.
    DISPOSITION
    The judgment is modified to strike the section 667.5, subdivision (b) prior prison
    term enhancements for both defendants. The trial court is directed to prepare amended
    abstracts of judgment reflecting these modifications and forward certified copies to the
    Department of Corrections and Rehabilitation. The judgment as modified is affirmed.
    /s/
    HOCH, J.
    We concur:
    /s/
    ROBIE, Acting P. J.
    /s/
    KRAUSE, J.
    16
    

Document Info

Docket Number: C089940

Filed Date: 10/8/2021

Precedential Status: Non-Precedential

Modified Date: 10/8/2021