Filed 1/16/20 P. v. Henry CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMAR HENRY,

Defendant and Appellant.

A156341

(Alameda County

Super. Ct. No. 17CR022587)

This appeal follows a jury trial where Jamar Henry was found guilty of sexual penetration by foreign object (Pen. Code § 289, subd. (a)(1)(A)), and a court trial where multiple sentence enhancement allegations were found true. Prior to sentencing, Henry secured new counsel and filed a motion for new trial, alleging a violation of his constitutional right to the effective assistance of trial counsel. The trial court denied the motion and sentenced Henry to an aggregate 13-year prison term.

Henry contends the judgment must be reversed because the trial court mis-instructed the jury, he was denied the effective assistance of counsel, and his motion for new trial should have been granted. He also seeks a remand for re-sentencing, on the ground that the trial court failed to recognize its discretion not to impose a five-year sentence enhancement under section 667, subdivision (a) (section 667(a)). We find no prejudicial error undermining the jury verdicts, but we will remand this case for a proper consideration of Henry’s new trial motion. Further, while it appears Henry forfeited his sentencing error claim, a remand for re-sentencing is nevertheless required because two one-year sentence enhancements imposed under section 667.5, subdivision (b) (section 667.5(b)) must be stricken in light of a January 2020 amendment to section 667.5(b).

BACKGROUND

I. Trial Evidence Regarding the July 2017 Incident

On July 26, 2017, shortly before noon, 18-year-old Jane Doe sat in a chair on the front porch of her home. Doe wore a white shirt, a pair of “Joe Boxer” boxer shorts with an open fly, and a pair of women’s “boy short” style underwear under her boxers. Doe talked on her cellphone while her aunt, N.G., stood at the end of the porch and looked around outside. Then a car stopped out front and several people got out, including Henry. Doe did not know Henry, but she may have seen him in the neighborhood.

Henry was singing to himself when he passed by N.G. and tried to touch her shoulder, but she moved away and called to his friends to come and get him. Henry argued with his companions as he walked toward the house next door to Doe’s house. He was talking about how he had done “time,” he “ran the village,” and he was a “real village nigga.” Then he turned around, went up onto Doe’s front porch and approached her.

Twice Henry told Jane Doe she was “cute.” She told Henry to go away and when he did not, she got up, intending to go inside the house. But Henry pushed her back into the chair. Then Henry used one hand to grab her crotch, at which point his four fingers went inside the fly of her boxer shorts and pushed her underwear into her vagina, such that she could feel his fingers through the thin material of her underwear. Henry let go of Doe “right away.” He had already removed his hand when his companions, who Doe referred to as Henry’s cousins, intervened and led Henry away. Jane Doe was upset, shocked, and frightened by Henry’s conduct and subsequently described the level of force that Henry used against her as approximately five out of 10.

When this incident occurred, Oakland Housing Authority Police Officer Adam Ward was parked down the street from Doe’s house in his patrol car, catching up on some paperwork. Ward, who knew Jane Doe’s father, noticed a commotion on the porch and went to investigate. By the time Ward walked over to the group, Henry had gone into the house next door to Doe’s house, apparently attempting to avoid contact with the officer. Ward called for backup and when Henry tried to exit through the back door of the house, Ward ordered him to go back inside. Then, Ward attempted to calm Doe’s father by assuring him that he would take action. After other officers arrived, Ward assisted in placing Henry under arrest, and noticed that Henry appeared to be under the influence of alcohol.

Doe told the police she “was in a little bit of pain,” so she was transported to the hospital. Kristin Mancuso, a physician’s assistant, performed a sexual assault examination of Doe. Mancuso documented four linear lacerations on the inside of Jane Doe’s external genitalia, near the vaginal canal, which is a common area of injury. Mancuso concluded that this type of injury could have been caused by the skin stretching around something and that it was consistent with the events Jane Doe described. She believed that the injury could also have been caused by an infection, but she doubted that these cuts were caused by shaving.

II. Procedural Background

In May 2018, Henry was tried on a felony charge of sexual penetration by foreign object. (§ 289, subd. (a)(1)(A).) In addition to the charged crime, the jury was instructed regarding five lesser included offenses: attempted sexual penetration; assault with intent to commit sexual penetration; misdemeanor sexual battery, simple battery, and simple assault.

The prosecution called four witnesses: Jane Doe; N.G.; Officer Ward; and Ms. Mancuso. The defense called no witnesses. During closing argument, defense counsel told the jury that the reason their presence was required was because the attorneys could not agree what crime Henry committed. He argued that the prosecutor wanted Henry to be convicted of sexual penetration, which was the most serious charge, but that the evidence was more consistent with the lesser included offense of assault with intent to commit sexual penetration. Defense counsel based this argument primarily on two claims. First, Jane Doe overstated an admittedly inappropriate interaction; there was evidence that Henry grabbed her crotch, but not that he penetrated her. Second, Henry was intoxicated, which was a defense to the more serious charged offense but was not a defense to the lesser assault charge. The jury deliberated for two hours before returning a verdict finding Henry guilty of sexual penetration as charged.

During a June 2018 court trial, the court found that several prior conviction and prior prison-term allegations were true and then continued the matter for sentencing. Meanwhile, Henry secured new counsel, who filed a motion for new trial based on the incompetence of trial counsel. Henry argued his trial counsel’s failure to interview material witnesses deprived him of the potentially meritorious defense that he did not actually touch Jane Doe. The trial court denied this motion on the theory that ineffective assistance of counsel was not a valid ground upon which to grant a new trial.

On January 11, 2019, the trial court held a sentencing hearing. Preliminarily, the court denied a defense request to strike Henry’s prior strike conviction for a 2005 robbery. The court then imposed a low term of three years for the current offense, doubled that base term because of the strike prior pursuant to section 667, subdivision (e) (section 667(e)), imposed what it called a “mandatory” five-year enhancement under section 667(a), and imposed two additional one-year enhancements under section 667.5(b). Regarding the aggregate 13-year prison sentence, the court observed that the enhancements “significantly increase the prison term imposed on the Defendant in conformity with and appropriate to the harm caused in this case and his criminal history.”

DISCUSSION

I. Jury Instruction Regarding Voluntary Intoxication

Henry contends the trial court committed reversible error by mis-instructing the jury regarding the relevance of evidence he was intoxicated during the July 2017 incident. Specifically, Henry argues the court erred by instructing the jury that it could not consider evidence of his voluntary intoxication when deciding whether he committed assault with intent to commit sexual penetration.

“[A] trial court has no sua sponte duty to instruct on the relevance of intoxication, but if it does instruct, . . . it has to do so correctly.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1134 (Mendoza).) We review the instructions as a whole to determine whether it is reasonably likely the jury construed challenged instructions in an incorrect manner. Erroneous instruction requires reversal of the judgment only if it is reasonably probable the error affected the verdict. (Ibid.; see also People v. Johnson (2016) 243 Cal.App.4th 1247, 1289.)

A. Additional Background

Prior to trial, defense counsel requested the court instruct the jury regarding the relevance of evidence of Henry’s voluntary intoxication. The prosecutor opposed the request, arguing that voluntary intoxication was not a valid defense because sexual penetration is a general intent crime. The court disagreed with the prosecutor but granted her “more time” to research the issue. Subsequently, the court granted the defense request for a voluntary intoxication instruction and stated it would use CALCRIM No. 3426. The court reasoned that voluntary intoxication was a possible defense to specific intent crimes, such as the sexual penetration charge and the lesser crime of attempt, but that it was not a defense to general intent crimes, such as the lesser crime of assault.

The jury was instructed with a modified version of CALCRIM No. 3426, which began: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted for the purpose of sexual abuse, arousal or gratification.” The instruction went on to define what voluntary intoxication means and explained how it related to the intent elements of the charge of sexual penetration, the lesser included offense of attempted sexual penetration, and the lesser included offense of misdemeanor sexual battery. Then it told the jury that it could not consider evidence of voluntary intoxication for any other purpose, and that “voluntary intoxication is not a defense to Assault with Intent to Commit Forcible Sexual Penetration, Simple Battery or Simple Assault.”

This limitation on the use of voluntary intoxication evidence was repeated in other instructions regarding the elements of the lesser crimes of assault with intent to commit sexual penetration, simple battery and simple assault, each of which was modified to include a directive that voluntary intoxication was not a defense to the crime.

B. Analysis

Evidence of voluntary intoxication is admissible “on the issue of whether or not the defendant actually formed a required specific intent” to commit a crime. (§ 29.4; see People v. Berg (2018) 23 Cal.App.5th 959, 965-967.) The crime of forcible sexual penetration is a specific intent crime; the act of penetration must be done with “the specific intent to gain sexual arousal or gratification or to inflict abuse on the victim.” (People v. McCoy (2013) 215 Cal.App.4th 1510, 1538.) Thus, as the trial court recognized, evidence of voluntary intoxication was admissible to determine whether this charged offense was committed.

The jury was also instructed correctly that voluntary intoxication was relevant to the attempted sexual penetration charge. “ ‘Because the act constituting a criminal attempt “need not be the last proximate or ultimate step toward commission of the substantive crime,” criminal attempt has always required “a specific intent to commit the crime.” ’ ” (People v. Chance (2008) 44 Cal.4th 1164, 1170 (Chance).)

However, the court erred by instructing the jury it could not consider voluntary intoxication when deciding whether Henry committed assault with intent to commit sexual penetration. The court was correct that the crime of assault is a general intent crime; “ ‘a specific intent to injure is not an element of assault because the assaultive act, by its nature, subsumes such an intent.’ ” (Chance, supra, 44 Cal.4th at p. 1170.) However, the crime of assault with intent to commit another crime is substantively distinct from a general assault because it necessarily embraces an attempt to commit the secondary crime. (People v. Ghent (1987) 43 Cal.3d 739, 757; People v. Singleton (1980) 112 Cal.App.3d 418, 431.) Thus, for example, an assault with intent to commit rape requires proof of a specific intent to rape. (People v. May (1989) 213 Cal.App.3d 118, 129.) By the same reasoning, an assault with intent to commit sexual penetration requires proof of specific intent to commit forcible sexual penetration.

The People concede, at least implicitly, that assault with intent to commit sexual penetration is a specific intent crime. Nevertheless, they contend there was no instructional error because there was insufficient evidence of voluntary intoxication to warrant any instruction on the issue at all. Thus, the People posit, the trial court “properly declined” to instruct the jury that voluntary intoxication could negate the intent element of assault with intent to commit sexual penetration.

First, the trial court did not decline to instruct on this issue. It gave an erroneous instruction that voluntary intoxication could not be considered. As previously noted, when the court elects to instruct on voluntary intoxication, it has an obligation to do so correctly. (Mendoza, supra, 18 Cal.4th at p. 1134.) Second, the trial record contains strong evidence that Henry was intoxicated. Under cross-examination, Jane Doe testified that when Henry approached her it “seemed like he was drunk.” She explained that she could not “know for sure,” but “[h]is actions and everything” showed that he was drunk. Furthermore, as noted in our background summary, N.M. testified that Henry was singing when he approached her, and Officer Ward testified that Henry appeared to be intoxicated when he was placed under arrest. In addition to smelling alcohol on Henry’s breath, the officer observed that Henry’s eyes were red and watery, and his speech was slurred.

Turning to the issue of prejudice, the question is whether it is reasonably probable that the erroneous limitation on the jury’s consideration of the intoxication evidence affected the jury’s verdict. (Mendoza, supra, 18 Cal.4th at p. 1134.) Here, we are sufficiently confident that the error did not affect the verdict. As Henry concedes, the jury received correct instruction regarding the relevancy of voluntary intoxication as to the sexual penetration charge. Thus, by finding Henry guilty of that charge, the jury had to have found that Henry intended to commit forcible sexual penetration, notwithstanding evidence he was intoxicated. The record also shows that the jury was instructed correctly that assault with intent to commit sexual penetration requires the same intent that is required to commit sexual penetration. However, it was also instructed not to consider evidence of voluntary intoxication when deciding if this lesser crime was proven. This aspect of the instruction was indeed wrong, but the error was harmless because the guilty verdict on the sexual penetration charge establishes that the jury necessarily found that Henry intended to commit sexual penetration whether or not he was intoxicated.

A consideration of Henry’s defense at trial reinforces our conclusion the jury instruction error did not affect the verdict. Defense counsel urged the jury to reject the more serious charge and to instead convict Henry of assault with intent based on evidence that (1) the act of grabbing Jane Doe was not a sexual penetration, and (2) Henry did not intend to experience gratification by penetrating Jane Doe because he was drunk. If the jury had been persuaded by either of these factual claims, the erroneous jury instruction could arguably have led the jury to convict Henry of the lesser crime rather than the more serious one. However, the opposite occurred; even considering the intoxication evidence, the jury concluded that Henry had the requisite intent to commit both the greater charge and the lesser included offense. Thus, it is not reasonably probable the error affected the verdict.

Arguing that the instructional error was prejudicial, Henry first contends that the failure to instruct on the necessary element of a crime constitutes a violation of federal due process, which requires reversal unless it was harmless beyond a reasonable doubt. (Citing Sandstrom v. Montana (1979) 442 U.S. 510 (Sandstrom).) Then, he posits that the fact that the jury convicted on a greater offense does not excuse the erroneous failure to instruct on the lesser offense. (Citing People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) There are several problems with this argument.

First, Sandstrom, supra, 442 U.S. 510, is inapposite as that case involved the failure to instruct on a necessary element of the crime for which the defendant was convicted. Here, the jury received correct instruction regarding the crime it found Henry guilty of committing. Second, as Henry’s own authority establishes, “the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.” (Breverman, supra, 19 Cal.4th at p. 165.) Finally, as a factual matter, this is not a case in which there was a failure to instruct on a lesser included offense, or an element of a lesser charge. Instead, the error was in precluding consideration of intoxication evidence when considering the intent element of one of the lesser charges that the jury never reached. The error was harmless because the jury necessarily found that Henry intended to commit sexual penetration even though he was intoxicated, and even though the jury had the option of convicting him only on a lesser charge. The jury was correctly instructed on the crime of attempted sexual penetration, including that the jury could consider evidence of voluntary intoxication in deciding whether defendant was guilty of this lesser included offense. We do not consider it reasonably probable that a jury that chose to convict on the charged offense when offered this alternative would have reached an outcome more favorable to the defendant if also properly instructed on assault with intent to commit sexual penetration.

II. The Right To Effective Assistance of Counsel

Henry argues he was denied the effective assistance of counsel because his trial attorney failed to object to Jane Doe’s trial testimony about a conversation she had with Mancuso during her sexual assault examination.

“A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] ‘Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 575, italics omitted.) “ ‘ “In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof.” ’ ” (People v. Lucas (1995) 12 Cal.4th 415, 436.)

Henry’s contention that his trial counsel performed deficiently pertains to an exchange that occurred during Jane Doe’s direct trial testimony. Specifically, when the prosecutor asked Jane Doe if the examination she had at the hospital was “like a pelvic examination,” Doe gave this response: “So basically, what they did when I went to the hospital, I talked to a couple of people because they came and asked questions. So after that, the lady, she put some type of dye to, like, find if it was any scratches or cuts or anything. And then she found one that was on the side of my lips and it was a fresh one, she was saying. And after that, they took pictures, like, you know to check the areas, and then I did, like a pee test and stuff.”

Henry contends that reasonably competent counsel would have moved to strike Jane Doe’s description of her sexual assault exam as a nonresponsive narrative to the prosecutor’s question, which called for a “yes” or “no” answer. (See Evid. Code, § 766.) He argues further that Doe’s assertion that Mancuso told her that she found a “fresh” cut was objectionable hearsay. (Evid. Code, § 1200.)

“ ‘Failure to object rarely constitutes constitutionally ineffective legal representation . . . .’ [Citation.] . . . ‘[I]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ ” (People v. Huggins (2006) 38 Cal.4th 175, 206; see also People v. Wilson (1992) 3 Cal.4th 926, 936.) Here there is a potential, satisfactory explanation for defense counsel’s decision not to object when Jane Doe described her sexual assault examination. As in Huggins, defense counsel “could have preferred not to draw the jurors’ attention” to this part of Doe’s testimony. (Huggins at p. 206.) An objection that the answer was nonresponsive could have triggered a series of specific questions that risked focusing the jury’s attention on each piece of relevant information. Similarly, a hearsay objection could have led to a direct and potentially more damaging inquiry about why Jane Doe believed the cuts were fresh. Moreover, any objection risked provoking ire from the jury for perceived insensitive treatment of an assault victim.

Henry contends these considerations do not justify the failure to object because Doe’s hearsay statement that her cut was fresh was a critical disputed issue at trial that went directly to the question whether there was actual penetration. According to Henry, this statement was the only evidence the prosecution elicited to show that the injury was not “pre-existing,” and it was actually contradicted by Mancuso’s report, which stated that there was “ ‘no obvious swelling or redness.’ ”

Henry’s post-hoc critique is really an argument about prejudice, which does not satisfy his burden of establishing that his counsel’s performance was deficient. As we have already discussed, when the testimony at issue was given, there were sound reasons not to object. And, if counsel thought the testimony was inconsistent with Mancuso’s notes from the examination, he could have questioned Mancuso about that during her subsequent testimony. Flagging this issue for the prosecutor so early in the trial would have increased the likelihood that she would then have sought to secure favorable testimony from both Jane Doe and Mancuso that the cuts were fresh.

In any event, we are not persuaded by Henry’s theory of prejudice. Doe’s passing reference to Mancuso’s remark that the cut was fresh was not the only evidence of sexual penetration. Jane Doe testified expressly that Henry’s fingers penetrated her. This assertion was consistent with N.M.’s less precise testimony that she saw Henry grab Doe’s vaginal area and Mancuso’s testimony that Doe’s injuries were consistent with the incident she reported. Thus, Henry fails to demonstrate ineffective assistance of counsel from defense counsel’s failure to object to Jane Doe’s testimony about Mancuso’s statement during her medical examination.

III. The New Trial Motion

Henry contends the trial court committed reversible error by denying his new trial motion for a legally erroneous reason. Our standard of review is unclear. As the People acknowledge, there is authority requiring independent review of the denial of a new trial motion to ensure a miscarriage of justice has not occurred. (See People v. Ault (2004) 33 Cal.4th 1250, 1260-1261.) However, some recent decisions apply an abuse of discretion standard to the denial of a motion for new trial. (See e.g. People v. Lightsey (2012) 54 Cal.4th 668, 729; People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) In this case we conclude that the trial court erred under either standard because it mistakenly assumed it had no discretion to entertain a claim of ineffective assistance of counsel in a new trial motion. This error of law is necessarily also an abuse of discretion. (See In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1061 [“A decision that rests on an error of law constitutes an abuse of discretion”].)

A. Additional Background

As noted previously, after the jury and court trials were completed, Henry obtained private counsel who replaced his public defender. Thereafter, the trial court granted Henry’s request for a continuance of the sentencing hearing, so he could file a motion for new trial. The sole ground for the motion was that Henry was denied the effective assistance of counsel due to his prior attorney’s failure to interview material witnesses who could have provided a potentially meritorious defense that Henry did not actually touch Jane Doe. The three witnesses, Evans, Calhoun and Gilmore, were the individuals mentioned at trial who were with Henry during the July 2017 incident.

The new trial motion was supported by an unsigned declaration from Evans, who was identified as Henry’s cousin and Jane Doe’s next-door neighbor. This document, which was drafted by Henry’s substitute counsel and incorporated into his motion for new trial, outlined a materially different account of the incident that resulted in Henry’s conviction, as follows: Henry was being overly familiar with Evans’s neighbors because he was intoxicated; Henry touched the shoulder of N.M., who was sitting on her porch step; then Henry’s friends led him away; thus Henry never touched Jane Doe, who was sitting in a chair on the porch. According to the unsigned declaration, Evans appeared at the preliminary hearing and told these facts to Henry’s trial counsel, but he did not call Evans to testify. Nor did Henry’s trial counsel subsequently contact Evans, or Calhoun or Gilmore, who were also present during the incident.

A hearing on Henry’s motion for new trial was set for January 4, 2019. The appellate record does not contain a transcript or even a minute order from that hearing. At the January 11 sentencing hearing, defense counsel acknowledged that the motion for a new trial had been denied, but he asked the court to make a record of its ruling. The court responded that it had already made its record, stating: “So I believe I did that already. And the court denied the motion for the new trial. And we were on the record the last time that we were here on that.”

Although we find no order denying the new trial motion in the appellate record, the record does show that, by late 2018, the trial court had already made it clear that it intended to deny this motion. In October, the court denied a defense request for funds to hire a private investigator to assist in determining whether Henry’s previous counsel failed to interview material witnesses. The trial judge opined that “you know, from everything that I saw and everything that I’ve read in your papers, certainly Mr. Henry should proceed on that [ineffective assistance claim].” The court also stated that, based on the “testimony that we heard,” Henry’s three companions “are witnesses who you would have expected to be called by the defense.” However, the court went on to find that ineffective assistance of counsel was not a ground for a new trial under section 1181, but instead was a claim that had to be made to the appellate court. According to the trial court, the defense would have to present some new facts or circumstances to obtain a new trial. The court repeated this view in December 2019, when it denied a related defense motion. Again, the court stated that the defense claim that Henry’s trial counsel was incompetent was not a valid ground for a new trial. The court also stated that the fact that known witnesses were not called to testify at trial was not a new fact.

B. Analysis

“Although ineffective assistance of counsel is not one of the statutory grounds for granting a new trial, the issue may nonetheless be asserted as the basis for a motion for new trial.” (People v. Reed (2010) 183 Cal.App.4th 1137, 1143.) Indeed, our Supreme Court has long counselled that “in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.” (People v. Fosselman (1983) 33 Cal.3d 572, 582-583; see also People v. Smith (1993) 6 Cal.4th 684, 692-695.)

Moreover, when ineffective assistance of counsel is alleged prior to sentencing, the trial court may appoint counsel, experts and investigators and should authorize such ancillary services as are reasonably necessary to ensure a defendant receives the effective assistance of counsel. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 318-319; see also People v. Williams (2006) 40 Cal.4th 287, 303 [affirming that “[t]he right to competent counsel under the federal and state Constitutions includes the right to ‘reasonably necessary ancillary defense services’ ”].)

Thus, the trial court erred by concluding that Henry’s ineffective assistance of counsel claim was not a valid basis upon which to request investigation services and move for a new trial. Indeed, the People concede that the trial court got the law wrong, and that in an appropriate case ineffective assistance of counsel can be the basis for a meritorious motion for a new trial. But they contend that in this case the court properly denied Henry’s new trial motion and related request for investigation fees because considering the motion would have caused unreasonable delay. The People reason that this is not a case in which the trial court was best positioned to adjudicate the ineffective assistance claim because the claim was not based on something that happened during trial, such as juror or prosecutor misconduct, but instead was premised on the failure to properly investigate witnesses, a claim that would have required taking additional evidence and could have taken months to resolve. We are not persuaded by this argument.

Despite the trial court’s cursory treatment of this issue, it readily acknowledged that, from its perspective, the failure to elicit testimony from Henry’s companions was a red flag and a potentially solid ground upon which to claim ineffective assistance of counsel. Indeed, to render reasonably competent assistance, counsel must “make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.” (In re Marquez (1992) 1 Cal.4th 584, 602.) “ ‘ “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” ’ ” (In re Thomas (2006) 37 Cal.4th 1249, 1258.)

Thus, the trial court was rightly concerned about defense counsel’s failure to call obvious witnesses whose presence during the incident was established by the trial evidence. Furthermore, Henry’s new trial motion incorporated his proposal to conduct further investigation by securing statements from a small number of known witnesses. The proposal was not only concrete but ripe. If an evidentiary hearing was warranted, the trial court was well-positioned to hold that hearing in a timely fashion before potential witnesses disappeared or their memories faded, and there was no reason to believe that hearing the motion would entail extensive delays. Instead, the court denied Henry’s request for investigation fees and required him to wait to pursue his claim in the appellate court solely because it believed it could not afford Henry the relief he sought.

When ineffective assistance of counsel is asserted as a ground for a new trial, the trial court has an obligation to inquire into the substance of the claim, which is often presented in conjunction with a request for new appointed counsel. (See People v. Stewart (1985) 171 Cal.App.3d 388, 398 disapproved on another point in People v. Smith (1993) 6 Cal.4th 684, 694; People v. Ivans (1992) 2 Cal.App.4th 1654, 1666.) “ ‘A trial judge is unable to intelligently deal with’ ” defense requests for a new trial due to trial counsel’s incompetence or for a substitution of attorney “ ‘unless he [or she] is cognizant of the grounds which prompted the request.’ ” (Stewart, at p. 398.) “A denial of appellant’s motion for new trial based on ineffective representation without careful inquiry into the defendant’s reasons for claiming incompetence ‘ “is lacking in all the attributes of a judicial determination.” ’ ” (Ibid.)

Here, the trial court did not conduct an adequate inquiry or indeed any inquiry into Henry’s reasons for claiming that his first counsel failed to conduct an adequate investigation. Instead, the court explicitly refused to consider the merits of Henry’s motion for new trial because it concluded erroneously that the relief he sought was not available in any event. Moreover, although Henry had managed to secure his own substitute counsel, the court denied his request for investigation fees because of its erroneous understanding of the governing law, thus effectively depriving Henry of a meaningful opportunity to substantiate his ineffective assistance of counsel claim.

Our conclusion that the trial court erred is reinforced by authority construing section 1202, which provides that a defendant shall be entitled to a new trial when the trial court either refuses to hear or neglects to decide a defendant’s motion for new trial before pronouncing judgment. That is essentially what happened here. However, a violation of section 1202 entitles the defendant to a new trial only upon a finding of actual prejudice. (People v. Braxton (2004) 34 Cal.4th 798, 817 (Braxton).) Prejudice is established if “the defendant’s new trial motion was meritorious as a matter of law,” or the record shows that the trial court would have granted the new trial motion and that it had the discretion to do so. (Ibid.) By the same token, the judgment may not be reversed, or a new trial ordered, when the motion lacks merit as a matter of law, or the record demonstrates that the trial court would have denied the motion and had the discretion to do so. (Id. at p. 818.)

In this case, the parties do not attempt to divine how the trial court would have exercised its discretion if it had understood the relevant law. Instead, they debate the merits of Henry’s ineffective assistance of counsel claim. Henry argues his trial counsel was clearly ineffective because “there could not have been any valid strategic reason for counsel not to interview, and/or call, these three exculpatory, or potentially exculpatory, witnesses.” But there is no evidence regarding the investigation that Henry’s defense counsel did or did not conduct before he decided not to present defense witnesses. Putting aside the unsigned Evans declaration, which is not evidence, we cannot determine whether counsel had some sound reason for deciding not to elicit testimony from Henry’s companions.

However, we are equally unpersuaded by the People’s analysis. The Attorney General argues that even if Henry’s first attorney failed to interview relevant witnesses, his deficient performance could not have resulted in any prejudice because of the overwhelming evidence of guilt, and the absence of any evidence to support Henry’s new version of the incident. This argument completely ignores the error that occurred here. Absent Henry’s opportunity to investigate and present this ineffective assistance claim, we cannot evaluate whether the alleged failure to interview relevant witnesses and/or present their testimony was prejudicial. We cannot tell whether the absence of persuasive evidence for Henry’s version of events is because there was no such evidence, or because trial counsel was ineffective and substitute counsel’s request for an investigator to help him prove ineffectiveness was denied. We do know that the trial judge, who sat through the whole trial and had an opportunity to assess the credibility of the witnesses who did testify—and who was well-positioned to take further testimony if necessary to decide the new trial motion—thought the claim should be pursued.

In sum, because the trial court refused to consider the merits of the new trial motion, we are unable “to determine with sufficient certainty whether the new trial motion was meritorious as a matter of law or whether the trial court would properly have exercised its discretion in favor of granting or denying the new trial.” (Braxton, supra, 34 Cal.4th at p. 818.) Under these circumstances, the proper remedy is for us to “remand the matter to the trial court for a belated hearing on the defendant’s new trial motion.” (Id. at p. 820.)

IV. Henry’s Sentence

Finally, Henry contends that he is entitled to a remand for resentencing because the trial court failed to exercise its discretion to decide whether to impose a five-year sentence enhancement pursuant section 667(a).

As noted, the trial court found that Henry’s 2005 conviction for robbery constituted a serious and violent felony under the Three Strikes Law, and therefore doubled his base sentence for his current offense pursuant to section 667(e). As part of this ruling, the court denied a defense motion to strike this 2005 conviction in “the furtherance of justice.” (See § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.)

The court also found that Henry’s 2005 strike prior subjected him to a five-year “repeat offender” sentence enhancement pursuant to section 667(a). When it imposed this enhancement, the court stated that the additional five-year term was “mandatory.” In fact, though, the five-year sentence enhancement authorized by section 667(a)(1) was not mandatory, because an amendment to sections 1385 and 667 that went into effect 10 days before the sentencing hearing gave the court discretion to strike the additional punishment for that enhancement. (Stats. 2018, ch. 1013, §§ 1-2; see People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)

Henry now contends that this case should be remanded for resentencing because the trial court never exercised its discretion under the amended statute to determine whether or not to impose the five-year enhancement. As support for this request, Henry invokes settled principles regarding the retroactive application of ameliorative statutory amendments. (See Garcia, supra, 28 Cal.App.5th at p. 973) He reasons that he, too, is entitled to the ameliorative benefit of the statutory amendments to sections 1385 and 667, which provide that the section 667(a) sentence enhancement is no longer mandatory, because his case is not yet final. This logic is not sound. The statutory amendments giving trial courts discretion not to impose a section 667(a) enhancement had already gone into effect prior to Henry’s sentencing hearing. Thus, his retroactivity argument is inapplicable to this case. Instead, Henry’s actual complaint is that the trial court committed a prejudicial sentencing error by misconstruing the section 667(a) enhancement as mandatory.

The People contend that this claim of error was forfeited because the defense did not lodge an objection when the trial court mischaracterized the enhancement as mandatory. (Citing People v. Scott (2015) 61 Cal.4th 363, 406.) Henry responds that the forfeiture rule applied in Scott does not govern here because, in contrast to that case, he did object to enhancing his sentence based on this prior conviction. But Henry’s motion to dismiss his 2005 strike conviction did not make the objection he raises now, which is that the section 667(a) enhancement is not mandatory and should not be imposed in his case.

Finally reaching the crux of the matter, Henry contends that it is simply unfair to blame him or his defense counsel for the trial court’s failure to recognize that the new statutory amendments gave it discretion not to impose the five-year enhancement. This contention begs the question whether Henry was denied the effective assistance of counsel during sentencing. Fortunately, we need not delve into that matter because of a different amendment to the sentencing statutes, which had not yet gone into effect when Henry was sentenced in January 2019.

In addition to the sentence enhancements for the 2005 prior, the court also imposed consecutive one-year terms for two other prison terms that Henry previously served. These enhancements were pursuant to section 667.5(b), which at the time of sentencing stated that when a defendant is convicted of a felony and sentenced to prison, “in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony . . . .”

Effective January 1, 2020, section 667.5(b) enhances punishment only for prior prison terms served “for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . .” This statutory amendment applies retroactively to all criminal defendants whose cases are not yet final (In Re Estrada (1965) 63 Cal.2d 740), including Henry. “[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.” (People v. Vieira (2005) 35 Cal.4th 264, 306.)

Here, the record shows that Henry’s prior prison terms were not for sexually violent offenses. Therefore, if Henry were sentenced today, the court could not have imposed the section 667.5(b) one-year sentence enhancements, and the sentence enhancements previously imposed pursuant to this statute must be stricken.

In light of this required change to Henry’s sentence, his concern that the trial court did not understand its discretion under newly amended section 667(a) is moot. “[W]hen part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.)

DISPOSITION

The judgment is conditionally reversed, and the matter is remanded for the trial court to hold a hearing on the merits of Henry’s motion for new trial. Depending on the outcome of that proceeding, the court may either grant the motion for new trial or proceed to re-sentencing. If the motion for new trial is denied, we order that the sentence enhancements imposed pursuant to section 667.5(b) be stricken and that the court conduct a full re-sentencing so that it can exercise its discretion in light of changed circumstances. In all other respects, the judgment, if reinstated, is affirmed.

 

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TUCHER, J.

WE CONCUR:

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POLLAK, P. J.

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STREETER, J.

People v. Henry (A156341)