Filed 12/31/19 P. v. Molina CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALVARO CAMACHO MOLINA,

Defendant and Appellant.

F076733

(Super. Ct. No. MCR054483)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant Alvaro Camacho Molina of attempted voluntary manslaughter (Pen. Code, §§ 664 & 192, subd. (a)/count 1), attempted murder (§§ 664 & 187, subd. (a)/count 2) and discharge of a firearm at an occupied motor vehicle (§ 246/count 3). The jury also found true a personal use of a firearm enhancement in count 1 (§ 12022.5, subd. (a)), a personal use of a firearm enhancement (§ 12022.53, subd. (b)) and a personal use and discharge of a firearm enhancement (§ 12022.53, subd. (c)) in count 2, and a personal use enhancement (§ 12022.53, subd. (b)) and a personal use and discharge causing great bodily injury enhancement (§ 12022.53, subd. (d)) in count 3.

On appeal, Molina contends: (1) the matter must be remanded for the trial court to consider whether to strike any of the firearm enhancements it imposed pursuant to section 12022.53; and (2) the court erred in the manner it calculated his sentence. We find merit to his first contention and remand the matter. In all other respects, we affirm.

FACTS

On August 4, 2016, Molina pulled up next to a Suburban driven by Armando Castro with Molina’s sister, Crystal, riding as a passenger, and began shooting at them with a handgun. A bullet struck Crystal, rendering her unconscious. Castro then rammed Molina’s truck, causing it to crash into a light pole and flip. Molina ran and hid in an orchard, but he was eventually arrested by responding officers.

On December 8, 2017, the court sentenced Molina to an aggregate, determinate term of 26 years eight months consisting of the mitigated term of five years on Molina’s attempted second degree murder conviction in count 2, a 20-year term on his personal use and discharge of a firearm enhancement in that count, and a consecutive term of one year eight months on his shooting at an occupied vehicle conviction in count 3. The court also imposed a consecutive indeterminate term of 25 years to life on Molina’s personal use and discharge of a firearm causing great bodily injury enhancement in count 3, it struck the lesser arming enhancement in that count, and it stayed terms on the remaining count and enhancement.

DISCUSSION

The Firearm Enhancements

Molina contends the case should be remanded to the trial court for it to exercise its discretion under section 12022.53 to consider whether to strike any of the gun enhancements imposed pursuant to that section. Respondent concedes.

Effective January 1, 2018, Senate Bill No. 620 amended sections 12022.5 and 12022.53. (Stats. 2017, ch. 682, §§ 1, 2 (SB 620).) Pursuant to those amendments, trial courts may, “in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed .…” (§§ 12022.5, subd. (c), 12022.53, subd. (h).) The parties agree SB 620 applies retroactively to all nonfinal judgments. Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute’s operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Because there is no indication that the recent amendment to section 12022.53 was intended to operate prospectively only, SB 620 applies retroactively to Molina’s case.

“Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.] Without such a clear indication of a trial court’s intent, remand is required when the trial court is unaware of its sentencing choices.” (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Since there is no clear indication of the trial court’s intent, we agree with the parties that the matter should be remanded to the trial court for it to consider whether to exercise its discretion to strike any of the gun use enhancements it imposed.

Molina’s Sentence

Molina contends that because the aggregate term of 26 years eight months to life the court imposed on count 3 was greater than the aggregate term of 25 years it imposed on count 2, the court erred when it used the term it imposed on count 2 as the principal term. Molina is wrong.

Section 1170.1, subdivision (a) provides:

“[W]hen any person is convicted of two or more felonies, … and a consecutive term of imprisonment is imposed under Section 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.…”

“Under the [Determinate Sentencing Law (DS[L])], section 1170 et seq., ‘if a defendant is convicted of more than one offense carrying a determinate term, and the trial court imposes consecutive sentences, the term with the longest sentence is the “principal term”; any term consecutive to the principal term is a “subordinate term.” ’ (People v. Felix (2000) 22 Cal.4th 651, 655 (Felix).)” (People v. Mason (2002) 96 Cal.App.4th 1, 14.) “However, the DS[L] only involves determinate sentences and ‘does not “affect any provision of law that … expressly provides for imprisonment in the state prison for life” .…’ (Felix, supra, 22 Cal.4th at p. 659.) Thus, the DS[L] sentencing scheme only applies when all the terms of imprisonment are ‘determinate,’ i.e., of specified duration. (People v. Reyes (1989) 212 Cal.App.3d 852, 856.) Where there are both determinate and indeterminate sentences, the provisions of the DS[L], and more particularly section 1170.1, do not apply. (Ibid.; [citation].)” (Id. at p. 15, second italics added.) Further, an indeterminate enhancement term does not merge with the determinate sentence that is imposed on the underlying substantive offense. (People v. Sanders (2010) 189 Cal.App.4th 543, 558 (Sanders).) Therefore, the indeterminate term imposed on the gun enhancement in count 3 was not subject to the DSL and there is no merit to Molina’s contention that the term imposed on count 3 was the greatest term imposed within the meaning of the DSL.

In his reply brief, Molina cites Sanders and section 1170.11 to support his contention of sentencing error. According to Molina, Sanders concluded that the principal term consists of the determinate term for the offense plus the enhancement, even if the enhancement carries an indeterminate term. Molina is wrong.

In Sanders, the defendant was convicted on two counts of attempted murder (counts 1 and 2) and an arming enhancement pursuant to section 12022.25, subdivision (d) was found true in each count. The trial court sentenced the defendant on count 1 to seven years, plus 25 years to life for the firearm enhancement and on count 2 to a full consecutive sentence of seven years, plus 25 years to life for the firearm enhancement in that count. (Sanders, supra, 189 Cal.App.4th at p. 558.)

In finding this was error, the Sanders court stated: “The decisive point is that an indeterminate enhancement does not merge with the determinate offense to make the entire term encompassed by the indeterminate sentencing law. [Citation.] That is, the sentence imposed for the offense does not merge with the sentence on the enhancement. [Citation.] In legal contemplation, the count and the enhancement remain distinct.” (Sanders, supra, 189 Cal.App.4th at p. 558, italics added.) Since the term on the substantive offense and the term on the enhancement remained distinct, the term on the substantive offense remained subject to the DSL. Thus, the Sanders court concluded that the penalty for the offense in count 2 should have been two and one-third years, one-third the middle term, instead of the full middle term. (Ibid.) Sanders, however, did not hold as Molina contends, that the principal term includes the enhancement term even if that term is indeterminate.

Moreover, section 12022.53 provides for determinate arming enhancement terms of 10 years (§ 12022.53, subd. (b)) and 20 years (§ 12022.53, subd. (c)) or an indeterminate arming enhancement term of 25 years to life (§ 12022.53, subd. (d)). As noted earlier, section 1170.1, subdivision (a) provides that “[t]he principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements.” (Italics added.) Section 1170.11 provides “As used in Section 1170.1, the term ‘specific enhancement’ … includes, but is not limited to, the enhancements provided in Sections … 12022.53, .…” (Italics added.)

Molina contends the clear language of sections 1170.1 and 1170.11 means that the indeterminate term provided for by section 12022.53, subdivision (d) merges with the determinate term imposed on the substantive offense in count 3, thus making that aggregate term the longest term. His contention is contrary to the court’s holding in Felix that indeterminate terms are not subject to the DSL. (Felix, supra, 22 Cal.4th at pp. 658–659.) Viewed in the context of the holdings of Felix, Sanders and the other cases cited above, it is clear section 1170.11 applies only to the determinate enhancement terms provided by section 12022.53, subdivisions (b) and (c), and not to the indeterminate enhancement term provided by subdivision (d) of that section. Accordingly, we reject Molina’s claim of sentencing error.

DISPOSITION

The judgment is affirmed. The matter is remanded to the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2), and if appropriate following exercise of that discretion, to resentence defendant accordingly.