People v. Deanda CA3 ( 2022 )

Filed 1/31/22 P. v. Deanda CA3
Opinion following rehearing
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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. OPINION ON REHEARING
ROBERT DEANDA,
Defendant and Appellant.
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.
1
On appeal, Deanda contended 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
contended their sentences included enhancements for prior prison terms, which should be
vacated based on the retroactive application of Senate Bill No. 136 (2019-2020 Reg.
Sess.; hereafter Senate Bill 136). We originally concluded both defendants’ prior prison
term enhancements should be stricken, modified the judgment accordingly, and affirmed
the judgment as modified. (People v. Damian et al. (Oct. 8, 2021, C089940) [nonpub.
opn.].)
Deanda filed a petition for rehearing, which we granted, and argues he is entitled
to resentencing based on legislative changes made by Senate Bill No. 567 (2021-2022
Reg. Sess.; hereafter Senate Bill 567) and Assembly Bill No. 124 (2021-2022 Reg. Sess.;
hereafter Assembly Bill 124). The People agree defendant is entitled to a full
resentencing under the new legislation. Accordingly, we will remand the matter to the
trial court for a full resentencing. 1
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
1 Damian did not join Deanda’s petition for rehearing, and our order granting the petition
vacated the prior decision as to Deanda only. Remittitur as to Damian’s portion of the
case was issued on December 13, 2021.
2
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
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
3
shooting towards the house. 2 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
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),3 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
2 The victims testified to different numbers of shooters and their testimony was, in some
cases, different than what they had previously told police.
3 Undesignated statutory references are to the Penal Code.
4
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. 4 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
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. As relevant here, Deanda asked the court to consider his
traumatic childhood at sentencing, and his sentence included the upper term sentence for
count one. Deanda was under 26 years old at the time of the offenses.
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
4B.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.
5
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
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
6
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.,
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
7
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
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
8
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
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
9
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
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
10
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
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.
11
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.”
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
12
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.
“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:
13
“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
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
14
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
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
15
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
664, 680-682 [same].) Accordingly, the section 667.5, subdivision (b) enhancements
must be stricken.
As to Damian, we previously determined that because the trial court imposed the
maximum term, we did not need to remand the matter for resentencing, and simply
modified the judgment to strike his prior prison term enhancements. (People v. Damian
et al., supra, C089940; 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].) As to Deanda, we will similarly strike the one 1-year prior prison term
enhancement, but, as explained below, will remand his case for full resentencing.
16
IV
Legislative Changes
On the same day we issued our original decision in this case, the Governor signed
Assembly Bill 124 and Senate Bill 567. Assembly Bill 124 and Senate Bill 567, both of
which became effective January 1, 2022, make changes affecting trial court sentencing
discretion, including the ability to impose the upper term for a conviction. (Stats. 2021,
ch. 695, § 5.3 [Assembly Bill 124]; Stats. 2021, ch. 731, § 1.3 [Senate Bill 567].) Among
other things, Assembly Bill 124 sets a presumption that the trial court will impose the
lower term under enumerated circumstances, such as where an offender’s childhood
trauma or youth were contributing factors in the offense. (Stats. 2021, ch. 695, § 5.3.)
Senate Bill 567 limits the trial court’s ability to impose the upper term unless certain
conditions have been met. (Stats. 2021, ch. 731, § 1.3.) In his supplemental briefs,
Deanda argues this matter must be remanded for resentencing so the trial court may
reconsider its sentencing decisions under the rubric of the new legislation. The People
agree remand is required in this instance, as do we.
Under In re Estrada (1965) 63 Cal.2d 740, “[w]hen the Legislature has amended a
statute to reduce the punishment for a particular criminal offense, we will assume, absent
evidence to the contrary, that the Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the statute’s operative date.” (People v.
Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) As the parties point out, this
presumption has been extended to amendments providing trial courts discretion to impose
lesser punishment at sentencing and amendments reducing the possible punishment for
classes of persons. (See, e.g., People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-
304 [Prop. 57, as approved by voters, Gen. Elec. (Nov. 8, 2016)]; People v. Garcia
(2018) 28 Cal.App.5th 961, 971-972 [Senate Bill No. 1393 (2017-2018 Reg. Sess.)];
People v. Valenzuela (2018) 23 Cal.App.5th 83, 87-88 [Senate Bill No. 620 (2017-2018
Reg. Sess.)].) Nothing in Assembly Bill 124 or Senate Bill 567 suggests legislative intent
17
that the amendments apply prospectively only, and defendant’s case is not yet final.
(People v. Vieira (2005) 35 Cal.4th 264, 306.)
“ ‘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.] In such circumstances, [our
Supreme Court has] held that the appropriate remedy is to remand for resentencing unless
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 (2014) 58 Cal.4th 1354, 1391.) There is no clear indication what
sentencing decisions the trial court would have made if it was bound by the new
requirements under Assembly Bill 124 and Senate Bill 567. Thus, we agree with the
parties that remand is appropriate so the trial court may fully resentence defendant anew,
incorporating the new legislative changes. (See People v. Buycks (2018) 5 Cal.5th 857,
896, fn. 15.)
DISPOSITION
The judgment of conviction is affirmed. The section 667.5, subdivision (b) prior
prison term enhancement is stricken and the case is remanded to the trial court for a full
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resentencing, consistent with the legislative changes made by Senate Bill 567 and
Assembly Bill 124, discussed herein.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
KRAUSE, J.
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