Filed 12/18/19 P. v. Weatherson CA5
(Opinion on rehearing)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PAUL ANDREW WEATHERSON et al.,

Defendants and Appellants.

F074475

(Super. Ct. No. F16902522)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge.

Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant Paul Andrew Weatherson.

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Richard Downs.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In April 2016, appellants Kevin Richard Downs and Paul Andrew Weatherson forced their way into a motel room in Fresno, California, while threatening its three occupants with handguns. Weatherson took property from an occupant. A jury convicted each appellant of first degree robbery (Pen. Code, § 211; count 1), finding true that they both personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)). Both appellants were also convicted of (1) being felons in possession of a firearm (§ 29800, subd. (a)(1); counts 5 & 7) and (2) being felons in possession of ammunition (§ 30305, subd. (a)(1); counts 6 & 8). Downs was sentenced to an aggregate prison term of 21 years, and Weatherson received an aggregate prison term of 19 years. Weatherson’s prison term included 3 one-year enhancements pursuant to section 667.5, subdivision (b).

On September 27, 2019, in an unpublished opinion (People v. Weatherson, et al. (Sept. 27, 2019, F074475), we considered and rejected most of appellants’ claims. However, we remanded this matter so the trial court could exercise its sentencing discretion regarding some of the enhancements imposed against both appellants, and to clarify whether it intended to stay Down’s sentence for his conviction of being a felon in possession of a firearm (count 7). We otherwise affirmed the respective judgments.

On October 8, 2019, the Governor signed into law Senate Bill No. 136 (2019-2020 Reg. Sess.; Senate Bill 136). Weatherson subsequently filed a petition for rehearing. He argues that he benefits from this change in law, which amends the circumstances under which a one-year enhancement may be imposed under section 667.5, subdivision (b). Respondent concedes that Senate Bill 136 retroactively applies to Weatherson, whose prior prison terms no longer qualify as enhancements. We agree with respondent. Upon remand, and once Senate Bill 136 takes effect on January 1, 2020, the trial court shall strike Weatherson’s enhancements under section 667.5, subdivision (b). We again remand for the court to resentence appellants in conformity with this opinion. We otherwise affirm appellants’ respective judgments.

BACKGROUND

We summarize the material trial evidence.

I. The Incident Inside The Motel Room.

In the early morning hours on April 22, 2016, police officers arrested appellants in a Fresno motel room after a guest called 911 to report that someone was screaming and “getting beat up” in an adjacent room. Responding officers wore body cameras, which recorded the events. The audio and visual recordings were played for the jury at trial.

When officers responded to the room in question, they heard yells for help. As officers entered the room, a male (later identified as Downs) appeared to be wrestling with a woman. Moments later, Weatherson was seen exiting the bathroom at the back of the room. The three victims—a mother, her adult daughter, and the daughter’s boyfriend—collectively claimed that appellants had robbed them and threatened to kill them.

Shortly after officers secured the motel room, they separately interviewed the mother and daughter. Portions of the interviews were recorded on a body camera and played for the jury. During their police interviews, the mother and daughter collectively stated that appellants had forced their way into the motel room at gunpoint and robbed them of jewelry. They described a chaotic scene in which appellants were physically rough and forcibly took their property.

Officers searched the motel room and found a loaded .25-caliber semiautomatic handgun. Inside a purse, officers found a knife with a curved tip. Police also recovered a personal check for a bank account belonging to a woman, L.H. Inside the bathroom, officers recovered a loaded .22-caliber handgun inside the tank of the toilet.

Officers searched Weatherson. Inside his pockets, officers recovered a lighter, two rings, and two necklaces. The mother and daughter informed officers that the jewelry belonged to them, and the lighter belonged to the boyfriend. Police recovered two knives in Downs’s possession.

II. The Trial Evidence Was In Conflict Regarding Why Appellants Entered The Motel Room.

At trial, the evidence was in conflict regarding how and why appellants were inside the victims’ motel room. Consistent with their statements to police, the mother and daughter testified that appellants were never invited into the room. Instead, appellants used a ruse to get the victims to open the door. A female knocked twice on the motel door. The first time, she asked to borrow a phone charger. The second time, she asked to borrow a phone. After the door was opened the second time, appellants forced their way inside while displaying firearms. Both appellants had their faces covered, and Weatherson wore a wig. The daughter screamed when the men forced their way into the room.

According to the mother and daughter, once inside the room, Weatherson put away his gun and he pulled out a large knife, which he used to threaten them. Appellants told them to get on the floor, and they complied. Weatherson searched through the room and demanded their jewelry. While he did so, Downs kept a gun trained on them. The mother and daughter claimed that appellants took their personal jewelry. They told the jury that they had been afraid for their lives and, once they realized that police were outside the door, they began screaming.

At trial, the jury learned that Weatherson had worked as a paid confidential informant (CI) for law enforcement. For about eight months prior to this incident, Weatherson had provided tips to the Fresno County Sheriff’s Department about auto thefts.

Weatherson testified that, as a CI, he went to the motel room to investigate potential criminal activity and to get evidence for law enforcement. He told the jury that he had learned that this room contained stolen items. According to Weatherson, he went to this room pretending that the victims had stolen his property. He claimed that he had asked them to return his property to him.

At trial, Weatherson admitted that he had hired a female to knock on the victims’ motel door. He told the jury that he did so to “diffuse the situation.” He testified that he had learned about the stolen items inside this room from a woman named Beth. He told the jury that he believed Beth was the boyfriend’s sister. He claimed that, when he first went to the motel room, the boyfriend had opened the door. Weatherson had mentioned Beth’s name, and the boyfriend had allowed him to enter the room without incident.

Weatherson testified that he went into the room alone. He denied wearing a mask, but he agreed that he had worn a wig. He said he did so to look funny, to make the victims laugh, and to make them comfortable with the situation. He saw “an older female” near the bathroom vanity area with a needle in her arm. According to Weatherson, this woman screamed after he told her “it was nasty” what she was doing. Weatherson removed his wig and told her to relax. After the woman screamed, Downs entered the motel room.

Weatherson claimed that the victims had allowed him to inspect some of the items in the room, and the two females had helped him look through a box or bag. Weatherson testified that the daughter had voluntarily handed him certain pieces of property.

Weatherson denied robbing anybody in the motel room, and he denied that either he or Downs were ever armed with firearms. He denied threatening anyone with a knife. He denied stashing a gun in the tank of the toilet. However, he admitted touching one knife while he was looking through a box or bag.

According to Weatherson, Downs had brought cash, which Weatherson was going to borrow in order to purchase property from the victims. Weatherson told the jury that he was going to take the stolen items to law enforcement to alert authorities about the victims’ criminal activity. Weatherson claimed that, before he could buy any property, the police arrived and one of the females began screaming. He testified that the mother grabbed Downs and dragged him to the ground.

Weatherson told the jury that, while he and Downs were inside the room, only the boyfriend had possessed a gun. According to Weatherson, the boyfriend had kept this gun tucked in his waistband. Weatherson, however, testified that he had believed the boyfriend’s gun was not real.

III. Trial Evidence Suggested That The Motel Room Contained Stolen Property.

The trial evidence strongly suggested that the motel room in question contained stolen property. As seen in the various police cameras and photographs, the room was very disorganized and filled with numerous items, including a power saw, bolt cutters, electronic equipment, and numerous stacked boxes and bags. The woman whose personal check had been recovered from the motel room, L.H., testified for the defense. L.H. told the jury that she had been the victim of theft. She said that her property had been stolen from a storage unit in Fresno. At trial, L.H. identified as her property the jewelry which had been recovered from Weatherson, and which the mother and daughter had claimed belonged to them.

IV. Law Enforcement Had Not Approved Weatherson’s Actions.

At trial, a sheriff’s detective testified that Weatherson did not ask law enforcement for permission to investigate the alleged criminal activity occurring inside this motel room. The detective further explained that Weatherson would not have been allowed to investigate this alleged criminal activity because it was unrelated to auto theft. As a result, Weatherson would not have been paid for any tips he provided about this incident. The detective clarified that Weatherson had been advised in writing that he was not a law enforcement officer.

During his trial testimony, Weatherson stated that he had “never” used force to get information as a CI, and he said he was not a violent person. He agreed that he was not allowed to use force as a CI. He denied using any “force” or “violence” when he was in the motel room that night.

V. The Stipulated Facts.

At trial, appellants stipulated that they each had a prior felony conviction for purposes of the charges in counts 5 through 8. In these counts, appellants were charged with being felons in possession of a firearm (§ 29800, subd. (a)(1); counts 5 & 7) and ammunition (§ 30305, subd. (a)(1); counts 6 & 8). The jury found appellants guilty in these counts.

The parties also stipulated that, although DNA swabs had been taken from the recovered handguns and knife at the crime scene, the swabs had not contained “the required levels of DNA to make a determination about whose DNA was located” on these items.

DISCUSSION

I. The Trial Court Did Not Have A Duty To Provide Further Jury Instructions About A Mistake Of Fact Or A Mistake Of Law, And Appellants Do Not Establish Ineffective Assistance Of Counsel.

In a series of similar and overlapping arguments, Weatherson contends that the trial court prejudicially failed to provide certain jury instructions. First, he claims the court failed to instruct with CALCRIM No. 3406, which explains a mistake of fact defense. He also asserts that the court committed prejudicial error by failing to modify the mistake of law instruction that was provided to the jury with CALCRIM No. 3407. Finally, he argues that the court erred when it did not instruct the jury with CALCRIM No. 3411, which further explains a mistake of law defense. Downs joins these claims.

A. Background.

1. The mistake of fact jury instruction (CALCRIM No. 3406).

Prior to the jury instruction conference, both Downs and Weatherson requested the trial court to instruct the jury with CALCRIM No. 3406 regarding mistake of fact. This instruction states that a defendant may not be guilty of a charged crime if he or she did not have a required intent or mental state due to a mistaken belief of fact. Appellants, however, later withdrew their requests for this instruction, and the court did not instruct the jury with it.

2. The mistake of law jury instruction (CALCRIM No. 3407).

Appellants requested a jury instruction with CALCRIM No. 3407 regarding mistake of law. Tracking the form instruction, the trial court informed the jury that it was not a defense to the crimes of robbery or burglary if an appellant “did not know he was breaking the law or that he believed his act was lawful.”

3. The mistake of law jury instruction (CALCRIM No. 3411).

Appellants did not request a jury instruction with CALCRIM No. 3411, and the court did not provide this instruction to the jury. This instruction provides additional information to a jury about a mistake of law defense. It states that a defendant is not guilty of a charged crime if he or she made an honest or good faith mistake about the law, if that mistake shows that he or she did not have the specific intent required for the crime.

B. The standard of review.

“ ‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ [Citations.]” (People v. Diaz (2015) 60 Cal.4th 1176, 1189.) We review de novo a claim that a trial court failed to give a required jury instruction. (People v. Waidla (2000) 22 Cal.4th 690, 733.)

C. Analysis.

Appellants argue that the trial court was obligated to instruct the jury with CALCRIM No. 3406 regarding a mistake of fact, and with CALCRIM No. 3411 regarding a mistake of law. They also assert that the court should have modified CALCRIM No. 3407 and explained that a mistake of law could negate specific intent. They contend that proper jury instructions would have established appellants’ lack of specific intent to commit robbery. In the alternative, they assert that their respective trial counsel rendered ineffective assistance because they did not pursue these instructions. These assertions are without merit.

A defendant has a right to have the trial court give a jury instruction on any affirmative defense for which the record contains substantial evidence. (People v. Salas (2006) 37 Cal.4th 967, 982.) Substantial evidence is defined as that which is sufficient for a reasonable jury to find in favor of the defendant. (Ibid.) However, a trial court has no duty to instruct if the defense is inconsistent with the defendant’s theory of the case. (Ibid.) “In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt .…’ [Citations.]” (Id. at pp. 982–983.)

In this matter, substantial evidence did not justify a jury instruction on a mistake of fact or additional instructions regarding a mistake of law. In fact, such instructions were inconsistent with the defense theory. Weatherson never testified that, because he was a CI, he believed he could take the victims’ property. To the contrary, he denied robbing anybody. In fact, he stated that he had “never” used force to get information, and he said he was not a violent person. He agreed that he was not allowed to use force as a CI, and he denied using any “force” or “violence” when he was in the motel room that night. He denied using any weapons or demanding property. Instead, he claimed that the daughter voluntarily handed him property after he began questioning the victims.

Based on this record, the jury was not presented with evidence that raised a reasonable doubt about whether appellants formed the specific intent to commit robbery or burglary based on a mistake of fact or law. To the contrary, such instructions were inconsistent with the defense theory. As such, the trial court did not have a duty to instruct with CALCRIM Nos. 3406 or 3411, or to provide additional instruction under CALCRIM No. 3407. (See People v. Salas, supra, 37 Cal.4th at p. 982.)

For the same reason, appellants do not establish ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel’s performance fell below an objective standard of reasonable competence and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)

Here, the record conclusively establishes why both defense attorneys failed to pursue further jury instructions regarding either a mistake of fact or a mistake of law. During closing argument, both defense attorneys stressed that their clients went to the motel room to obtain information on stolen property because Weatherson was a CI. It was asserted that Weatherson was permitted to enter the motel room and appellants did not “barge” in as the prosecutor had claimed. The defense claimed that the victims had possessed stolen property, and the mother and daughter had lied to the jury. The defense asserted that the victims voluntarily gave property to Weatherson after he had confronted them about the stolen items. The defense claimed that a forceful taking had not occurred.

Based on this record, it is overwhelmingly clear that appellants’ trial attorneys made a reasonable tactical choice and elected not to rely on either a mistake of fact or a mistake of law defense. We will defer to those reasonable tactical decisions. (See People v. Lucas, supra, 12 Cal.4th at pp. 436–437.) Thus, appellants have not shown that their trial counsel failed to act in a reasonably competent manner. (See People v. Fosselman (1983) 33 Cal.3d 572, 581.) Accordingly, appellants have failed to demonstrate ineffective assistance of counsel, and these claims fail. (See Strickland, supra, 466 U.S. at p. 687.)

II. The Trial Court Did Not Abuse Its Discretion When Responding To A Jury Question.

Appellants contend that the trial court erred when it responded to a jury question regarding the firearm enhancements. They seek reversal of their respective sentencing enhancements under section 12022.53.

A. Background.

1. The relevant jury instructions.

The jury received instruction on several relevant topics. With CALCRIM Nos. 400 and 401, the jury learned about the concept of aiding and abetting, and its required elements. The jury was told that a person is guilty of a crime whether he committed it personally or aided and abetted the perpetrator.

With CALCRIM No. 3146, the jurors were told that, if they found an appellant guilty of robbery as charged in counts 1, 2 or 3, then they had to decide whether that appellant “personally used a firearm during the commission of that crime.” The jurors were instructed that a person “personally uses a firearm if he intentionally does any of the following: One, displays the weapon in a menacing manner. Two, hits somebody with the weapon or, three, fires the weapon.”

2. The jury’s question.

During deliberations, the jury sent the following written note to the trial court: “For the firearm charge, if we find that one defendant used a gun for robery [sic] and find that the other defendent [sic] assisted in the robery [sic], can both defendent’s [sic] be charged with … using a firearm[?] The assisting defendent [sic] does not have gun.”

The court met with the parties to discuss the note. According to the court, it appeared that the jury was asking a question about the possible application of aiding and abetting to a firearm enhancement. After discussions with counsel, it was agreed that the jury would be directed to refer to CALCRIM No. 3146. The court responded to the jury in writing and directed the jury to review that instruction.

B. The standard of review.

A trial court is required to instruct a deliberating jury regarding any point of law in the case if the jury so requests. (People v. Waidla, supra, 22 Cal.4th at p. 746.) “An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.” (Id. at pp. 745–746.) Under this standard, we will not disturb the trial court’s decision on appeal unless “ ‘the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)

C. Analysis.

Appellants assert that the jury was confused, and it did not understand CALCRIM No. 3146. They contend that, instead of referring the jury back to CALCRIM No. 3146, the trial court should have told the jury that aiding and abetting was inapplicable for the alleged firearm enhancements under section 12022.53, subdivision (b). They claim that the court’s response lowered the prosecution’s burden of proof and resulted in a denial of due process. We reject these arguments.

A trial court has a primary duty to assist the jury in understanding the legal principles it is asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee).) A trial court must not figuratively “throw up its hands and tell the jury it cannot help.” (Ibid.) Instead, the court must consider how it can best help the jury and decide whether further explanation is desirable or whether it should merely reiterate the original instructions already given. (Ibid.)

Here, we reject a claim that the trial court failed to respond properly to the jury’s question. The court met with counsel and fashioned an agreed-upon response. The court considered how to best help the jury. The court determined that the jury was focused on whether aiding and abetting applied to the charged firearm enhancements. The court, however, directed the jurors away from the aiding and abetting instructions (CALCRIM Nos. 400 and 401) and, instead, referred them exclusively to CALCRIM No. 3146. This instruction makes it abundantly clear that, for the enhancement under section 12022.53, subdivision (b), to apply, a defendant must personally discharge a firearm. This instruction makes no mention of aiding and abetting. We also note that, after the court responded, the jury did not submit further questions or express any misunderstanding. This record does not establish or even reasonably suggest that the jury may have been confused.

We disagree with appellants’ contention that the trial court should have deviated from the standard instruction. To the contrary, the jury’s question strongly suggested it had focused on a particular issue or was leaning in a certain direction. As such, the trial court was required to respond in a neutral manner that did not suggest advocacy. (People v. Montero (2007) 155 Cal.App.4th 1170, 1180.) Any clarification offered by the court beyond the standard jury instructions could have placed the court into the role of an advocate. The court’s answer, however, responded to the jury but eliminated any possibility of endorsing or redirecting the jury’s inclination. CALCRIM No. 3146 contained full and complete instructions regarding the firearm allegation. As our Supreme Court has noted, it is often risky for a trial court to offer comments that diverge from the standard instructions. (Beardslee, supra, 53 Cal.3d at p. 97.) A trial court is not required to elaborate on the standard jury instructions if the original instructions are full and complete. (Ibid.)

We likewise disagree that the trial court’s response violated appellants’ due process rights or lowered the prosecution’s burden of proof. Instead, the jurors were provided with full and complete instructions regarding the required elements for the alleged firearm enhancements. CALCRIM No. 3146 required each appellant to personally use a firearm by intentionally displaying the weapon in a menacing manner, hitting someone with the weapon, or firing it. This instruction reinforced the requirement that the prosecution had to establish the alleged firearm enhancements beyond a reasonable doubt. The jury was instructed that, if the People could not meet this burden, then it must find that the allegation had not been proven. We presume that the jurors were “intelligent and capable of understanding and applying the court’s instructions.” (People v. Gonzales (2011) 51 Cal.4th 894, 940.) Nothing establishes or even reasonably suggests that we should disregard this presumption.

Finally, we reject appellants’ suggestions that the jury may have based its true findings on a legally invalid theory. Appellants cite In re Martinez (2017) 3 Cal.5th 1216 (Martinez) and People v. Chiu (2014) 59 Cal.4th 155 (Chiu) for the proposition that reversal is required. These opinions do not assist them.

In both Martinez and Chiu, the defendants were convicted of first degree murder. In both trials, the juries had been instructed on two theories: a direct aiding and abetting theory, and a natural and probable consequences theory. (Chiu, supra, 59 Cal.4th at p. 158; Martinez, supra, 3 Cal.5th at p. 1218.) An aider and abettor, however, may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Instead, liability must be based on direct aiding and abetting principles. (Chiu, supra, at pp. 158–159.) In both Martinez and Chiu, reversal was required because the respective records did not establish beyond a reasonable doubt that the juries actually relied on a legally valid theory to convict the defendants. (Martinez, supra, 3 Cal.5th at p. 1218; Chiu, supra, 59 Cal.4th at pp. 167–168.)

In this matter, and unlike in Martinez and Chiu, instructional error did not occur. To the contrary, the jury was properly informed of the requirements to find true the firearm enhancements. The jurors were directed to review CALCRIM No. 3146, which requires a defendant to personally use a firearm for the allegation under section 12022.53, subdivision (b), to apply. This instruction neither states nor suggests that principles of aiding and abetting may be considered. As such, this record does not establish that the jury based its true findings on a legally invalid theory. Thus, Martinez and Chiu are distinguishable, and these opinions do not dictate reversal.

Based on this record, the trial court did not exercise its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124–1125.) The court’s decision was not outside the bounds of reason under the applicable law and the relevant facts. (See People v. Williams, supra, 17 Cal.4th at p. 162.) As such, the court did not abuse its discretion when it responded to the jury’s question. (See People v. Waidla, supra, 22 Cal.4th at pp. 745–746.) Accordingly, appellants’ arguments are without merit and this claim fails.

III. We Will Remand So The Trial Court May Exercise Its Sentencing Discretion Under Senate Bill No. 620.

At the time of appellants’ respective sentencing in this matter, the trial court was required to impose additional prison sentences for the firearm enhancements found true under section 12022.53. (Former § 12022.53, subd. (b).) On October 11, 2017, however, the Governor approved Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended, in part, section 12022.53. Under the amendment, a trial court now has discretion to strike or dismiss these firearm enhancements. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)

The parties agree, as do we, that this amendment applies retroactively to appellants because their case is not yet final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) The parties, however, disagree whether remand is appropriate. Respondent asserts that a remand would serve no purpose based on the sentencing record. According to respondent, no reasonable court would exercise its discretion to strike appellants’ respective firearm enhancements. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) We disagree.

Regarding Downs, the probation department had recommended that the trial court should impose middle term sentences for all three convictions, resulting in an aggregate prison term of 23 years. The court, however, imposed the lower term for all three of Downs’s convictions, which were further ordered to run concurrently. The court’s sentencing choices resulted in an aggregate prison term of 21 years. During sentencing, the court noted that Downs did not have an extensive or violent criminal history, but he had put himself into the “wrong situation” when he participated with Weatherson.

Regarding Weatherson, the probation department had recommended that the court should impose upper term sentences for all three convictions, resulting in an aggregate prison term of 20 years. The court, however, imposed the upper term only on the conviction for first degree robbery (count 1). The court imposed middle term sentences for the other two convictions, which were ordered to run concurrently. This resulted in an aggregate prison term of 19 years. During sentencing, the court noted that Weatherson had a “lengthy criminal history” and the court further noted that Weatherson was the “motivating and driving force” in these crimes.

We do not minimize the seriousness of the present crimes or the gravity of appellants’ respective criminal records. However, a remand is proper because the sentencing record does not demonstrate a clear intent by the trial court to impose the maximum possible sentences against appellants. Nothing in the record rules out the possibility, however slight, that the court might exercise its discretion to strike a firearm enhancement. (People v. McDaniels (2018) 22 Cal.App.5th 420, 428 [noting under its record that the trial court could strike a firearm enhancement].) As such, remand is appropriate. We express no opinion on how the court should exercise its discretion on remand.

IV. We Will Remand Downs’s Matter So The Trial Court May Exercise Its Sentencing Discretion Under Senate Bill No. 1393.

Downs requests that his matter be remanded in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No. 1393). This legislation amended sections 667 and 1385 to provide trial courts with discretion to strike five-year sentencing enhancements based on prior serious felony convictions under section 667, subdivision (a)(1). (People v. Kelly (2019) 32 Cal.App.5th 1013, 1015–1016.)

Respondent agrees, as do we, that remand is appropriate. Senate Bill No. 1393 retroactively applies to Downs because his case is not yet final. (People v. Kelly, supra, 32 Cal.App.5th at p. 1016.) Accordingly, we will direct the trial court to exercise its discretion as to the felony enhancement under section 667, subdivision (a)(1). We express no opinion on how the court should resolve this issue.

V. The Trial Court Must Stay The Imposition Of Sentence Against Appellants For Their Respective Convictions For Being A Felon In Possession Of Ammunition (Counts 6 & 8).

Section 654 bars multiple punishments for the same criminal act or omission. (People v. Correa (2012) 54 Cal.4th 331, 337.) Respondent concedes that Weatherson’s sentence must be stayed pursuant to section 654 for his violation of being a felon in possession of ammunition (§ 30305, subd. (a)(1); count 6). Respondent agrees that this crime was not a divisible act from Weatherson’s possession of a firearm. We agree. When a felon possesses ammunition that is loaded into a firearm, the felon cannot be punished both for possession of the firearm and possession of the ammunition. This is not divisible conduct meriting multiple punishment. To the contrary, the sentence for the illegal possession of ammunition should be stayed under section 654. (People v. Lopez (2004) 119 Cal.App.4th 132, 138–139.)

Here, nothing established that Weatherson possessed ammunition apart from that loaded into the firearms recovered at the crime scene. As such, his sentence for possession of ammunition by a felon (§ 30305, subd. (a)(1); count 6) should have been stayed because the court also sentenced Weatherson for being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 5). At resentencing, the trial court shall stay imposition of the sentence in count 6 against Weatherson. (§ 654, subd. (a).)

Downs has joined Weatherson’s claims on appeal. The facts and our analysis are the same for Downs. At resentencing, the trial court shall likewise stay imposition of Downs’s sentence for his possession of ammunition by a felon (§ 30305, subd. (a)(1); count 8).

VI. The Trial Court Did Not Err Regarding The Imposition Of Sentence Against Weatherson For His Conviction Of Being A Felon In Possession Of A Firearm (Count 5).

Weatherson argues that his sentence should be stayed for his violation of being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 5). Respondent disagrees.

A. The standard of review.

“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)

B. Analysis.

Weatherson asserts that his crime of possessing a firearm was not divisible from his conduct that led to the firearm enhancement under section 12022.53, subdivision (b). According to Weatherson, nothing suggests that he arrived at the motel room in possession of a firearm. He contends that Downs “could have possessed both guns” until they arrived at the door. Weatherson further raises an equal protection challenge. He claims that the trial court stayed Downs’s sentence for the same crime, and he maintains that the court treated him differently from Downs. We find Weatherson’s arguments unpersuasive.

It is proper to punish a defendant both for possession of a prohibited firearm and for the completion of another crime when those crimes are separate acts. Thus, “multiple punishment is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent.” (Jones, supra, 103 Cal.App.4th at pp. 1143–1144.) In contrast, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm is not proper. In other words, multiple punishment is improper where the evidence demonstrates that the defendant obtained possession of the weapon at the moment he or she committed the other offense. (Id. at p. 1144.)

In this matter, the trial court did not state the factual basis for its imposition of a concurrent sentence against Weatherson for his prohibited firearm possession (count 5). Implicit in its determination, however, was a finding that the firearm possession was a separate and distinct offense. Substantial evidence supports the court’s conclusion.

Viewing the evidence in the light most favorable to respondent, it is abundantly clear that Weatherson entered the motel room already possessing a firearm. The evidence does not demonstrate or even reasonably suggest that Weatherson obtained the firearm inside the motel room. As such, section 654 is inapplicable. (See Jones, supra, 103 Cal.App.4th at p. 1144.) Weatherson engaged in divisible criminal acts and multiple punishment is appropriate. We will not reverse the court’s findings on appeal.

Finally, we reject Weatherson’s contention that the trial court treated him differently from Downs and violated equal protection. According to Weatherson, the court stayed imposition of Downs’s sentences for his convictions of being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 7) and being a felon in possession of ammunition (§ 30305, subd. (a)(1); count 8). The sentencing record, however, does not support Weatherson’s arguments.

When sentencing Downs, the court imposed a prison term of 16 months for Downs’s violation of being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 7) and for being a felon in possession of ammunition (§ 30305, subd. (a)(1); count 8). These terms were doubled. The court stated that these counts would run concurrently to count 1 (first degree robbery) “pursuant to … section 654.” Despite mentioning section 654, however, the court otherwise never stated its intent to stay Downs’s sentences in counts 7 and 8. Further, the probation report did not recommend that Downs’s sentences in counts 7 and 8 should be stayed. Instead, these sentences were to be served concurrently to his sentence in count 1.

Downs’s abstract of judgment indicates that his sentences in counts 7 and 8 were stayed pursuant to section 654. Based on the oral pronouncement of sentence, however, the court never stayed these sentences. Instead, the court ordered them to run concurrently. The record strongly suggests that the court simply misspoke when it mentioned section 654. As such, we reject Weatherson’s assertion that the trial court intended to treat him unequally.

Based on this record, substantial evidence supports the trial court’s determination to impose a concurrent sentence for Weatherson’s conviction for possession of a firearm as a felon (§ 29800, subd. (a)(1); count 5). Weatherson is not being punished multiple times for the same criminal act. Accordingly, the court did not err when it failed to stay this sentence, and this claim fails.

VII. At Resentencing, The Trial Court Shall Clarify Whether It Intends To Stay Downs’s Sentence For His Conviction Of Being A Felon In Possession Of A Firearm (Count 7).

As noted above, Downs’s abstract of judgment reflects that his sentences for counts 7 and 8 were stayed pursuant to section 654. We agree that his sentence for possession of ammunition by a felon (§ 30305, subd. (a)(1)); count 8) should be stayed pursuant to section 654. It is unclear, however, whether the trial court intended to stay Downs’s sentence for possession of a firearm by a felon (§ 29800, subd. (a)(1); count 7). In fact, the sentencing record strongly suggests that the court did not intend to stay this sentence but, rather, it intended to impose a concurrent sentence.

Upon remand, we will direct the trial court to clarify Downs’s sentence in count 7 for possession of a firearm by a felon. The court shall indicate whether it intends to stay this sentence pursuant to section 654 and, if so, the grounds for such a stay. We express no opinion regarding whether or not the court should stay Downs’s sentence in count 7.

VIII. Because We Are Remanding For Resentencing, We Will Not Correct Prior Clerical Mistakes.

The parties agree that certain clerical mistakes appear in both Downs’s abstract of judgment and the clerk’s minute order reflecting Downs’s sentencing hearing on October 5, 2016. We agree that prior errors occurred, and we also note an error appearing in Weatherson’s abstract of judgment. For instance, appellants’ respective abstracts of judgment both erroneously list the convictions in count 1 as first degree residential burglary under section 211. However, appellants were convicted of first degree residential robbery.

We need not, however, correct these (and other) clerical errors. Instead, because we are remanding for resentencing, we will direct the trial court to prepare amended abstracts of judgment to reflect appellants’ convictions and the oral pronouncements of sentence.

IX. Weatherson’s Prior Prison Term Enhancements Shall Be Stricken Once Senate Bill 136 Takes Effect On January 1, 2020.

Weatherson and respondent agree, as do we, that Weatherson benefits from Senate Bill 136. On October 8, 2019, the Governor signed Senate Bill 136 into law. This amends section 667.5, subdivision (b). Under the amendment, a one-year prior prison term enhancement now only applies if a defendant served a prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).

Weatherson was sentenced to three prior prison term enhancements pursuant to section 667.5, subdivision (b). It is undisputed that his prior prison terms were not for sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b).

We agree with respondent that Senate Bill 136 will become effective on January 1, 2020. Except when passed as an urgency measure, a statute enacted at a regular session of the Legislature generally becomes effective on January 1 of the year following its enactment. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) Respondent concedes that, when Senate Bill 136 goes into effect, Weatherson’s judgment will likely not be final. Respondent further concedes that this change in law will apply to Weatherson retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 742.) We appreciate respondent’s concessions and agree with them.

We are to assume, absent evidence to the contrary, that the Legislature intended an “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, citing In re Estrada, supra, 63 Cal.2d at pp. 742–748.) A final judgment will not occur in this matter until 30 days after this opinion is issued. (Cal. Rules of Court, rule 8.366(b)(1).) If one or more parties file a petition for rehearing, the date of finality will be extended further. (Cal. Rules of Court, rule 8.268(b)(1)(A) & (d).) The parties will have 10 days after this decision becomes final to petition for review in the California Supreme Court. (Cal. Rules of Court, rule 8.500(e)(1).) Only after a petition for review has been adjudicated in the state court of last resort can a party then petition for a writ of certiorari in the United States Supreme Court. (U.S. Supreme Ct. Rules, rule 13(1) & (3).) For the purpose of determining the retroactive application of an amendment to a criminal statute, a judgment is not final until the time has passed for petitioning for a writ of certiorari in the United States Supreme Court. (People v. Vieira (2005) 35 Cal.4th 264, 305–306.)

It is clear that Weatherson will not exhaust his appeal rights before January 1, 2020. As such, he benefits from Senate Bill 136. Thus, we remand this matter for the trial court to strike the enhancements under section 667.5, subdivision (b), and to resentence Weatherson after Senate Bill 136 becomes effective on January 1, 2020.

DISPOSITION

Weatherson’s and Downs’s respective matters are remanded to the trial court for resentencing.

Regarding Downs

On remand, the trial court shall exercise its discretion whether to strike or dismiss the prior felony enhancement under section 667 as authorized by Senate Bill No. 1393. The court shall also exercise its discretion whether to strike or dismiss the firearm enhancement pursuant to section 12022.53, subdivision (h). If the court strikes or dismisses the prior felony enhancement and/or the firearm enhancement, then the court shall resentence Downs accordingly. In any event, the court shall stay imposition of sentence in count 8 (§ 30305, subd. (a)(1)) pursuant to section 654. In addition, the court shall articulate whether it intends to stay imposition of sentence in count 7 (§ 29800, subd. (a)(1)) pursuant to section 654 and, if so, to state the basis for the stay. Following resentencing, the court shall prepare an amended abstract of judgment in conformity with this opinion and which properly reflects Downs’s convictions and the oral pronouncement of sentence. The court shall forward the amended abstract of judgment to the appropriate authorities. In all other respects, Downs’s judgment is affirmed.

Regarding Weatherson

Weatherson shall be resentenced after Senate Bill 136 takes effect on January 1, 2020. On remand, the trial court shall exercise its discretion whether to strike or dismiss the firearm enhancement pursuant to section 12022.53, subdivision (h). If the court strikes or dismisses the firearm enhancement, then the court shall resentence Weatherson accordingly. In any event, the court shall stay imposition of sentence in count 6 (§ 30305, subd. (a)(1)) pursuant to section 654. The court shall strike the enhancements imposed under section 667.5, subdivision (b). Following resentencing, the court shall prepare an amended abstract of judgment in conformity with this opinion and which properly reflects Weatherson’s convictions and the oral pronouncement of sentence. The court shall forward the amended abstract of judgment to the appropriate authorities. In all other respects, Weatherson’s judgment is affirmed.

LEVY, Acting P.J.

WE CONCUR:

MEEHAN, J.

DE SANTOS, J.