Opinion
B261458
11-27-2019
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL CARDONA, Defendant and Appellant.
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA116734) APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Higa, Judge. Affirmed in part, reversed in part. Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Ismael Cardona of one count of first degree murder (Pen. Code, § 187) and one count of attempted murder (§§ 187, 664) after an incident at a party during which he shot two people, killing one and wounding the other. The trial court sentenced Cardona to life without the possibility of parole for murder, plus an additional 25 years because Cardona personally and intentionally discharged a firearm to commit the murder. (§ 12022.53, subd. (d).) The court imposed a consecutive sentence of 15 years to life for attempted murder, plus 25 more years for another firearm enhancement for that count.
Unless otherwise specified, subsequent statutory references are to the Penal Code.
In a previous opinion, we reversed Cardona's conviction for attempted murder on the ground that the trial court committed prejudicial error by instructing the jury on a "kill zone" theory when there was no substantial evidence to support it. (People v. Cardona (2016) 246 Cal.App.4th 608.) The California Supreme Court granted the Attorney General's petition for review of the case, and while the case was still pending, the Legislature enacted Senate Bill No. 620 (Stats. 2017, ch. 682) (Senate Bill No. 620), which gave trial courts new discretion to strike firearm enhancements in cases like Cardona's. Cardona filed a request for consideration of additional issues in the Supreme Court, arguing that he was entitled to relief under the new law. The Supreme Court filed an opinion in People v. Canizales (2019) 7 Cal.5th 591 (Canizales) in which it interpreted the kill zone instruction in essentially the same way we did in our earlier opinion. The court held that trial courts "should provide [a kill zone] instruction to the jury only in those cases where the court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm. The use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction." (Id. at p. 608.)
The Court directed us pursuant to California Rules of Court, rule 8.528(d) to vacate our decision and reconsider the cause in light of Senate Bill No. 620, but did not instruct us to reconsider the cause in light of Canizales or in any other respect. On remand, the parties filed supplemental briefing. Cardona argued that he is entitled to relief under Senate Bill No. 620, and that we should reaffirm our holding with respect to the kill zone following Canizales. The Attorney General contended that we need not remand the case to the trial court for possible resentencing under Senate Bill No. 620, and further, that under Canizales, the trial court did not err by giving a kill-zone instruction.
We hereby vacate our previous opinion in this case pursuant to the Supreme Court's direction. Because the Supreme Court did not instruct us to reconsider our holding regarding the kill zone instruction or other issues discussed in our previous opinion, we reissue our previous opinion almost verbatim in the Discussion post, parts I-III. We once again reverse Cardona's conviction of attempted murder and otherwise affirm the trial court's judgment. We add a new Discussion part IV in which we address Senate Bill No. 620. Although we conclude that the new law applies retroactively to Cardona, we will not remand the case for a potential new sentencing hearing because the record shows that the trial court would not exercise its discretion to strike the firearm enhancement for purposes of sentencing.
We have updated certain citations to keep them current.
FACTS AND PROCEEDINGS BELOW
Cardona attended a party in the backyard of a house in Whittier on the night of April 3, 2009. Three friends accompanied him to the party, all members of a street gang known as MFT.
Paul Jauregui also attended the party accompanied by his friends. He brought with him a tank containing nitrous oxide, or "noz," from which he was selling doses to partygoers. Cardona and one of his friends approached Jauregui and his friends. The noz tank fell over. Jauregui and a friend tried to grab it, but Cardona's friend wrestled it away and ran out of the party. Cardona pulled a gun on Jauregui and said, " 'Give me your money,' " and " 'It's our tank now.' " Jauregui pushed the gun away, grabbed Cardona by the shoulder, and stabbed him several times with a switchblade. Cardona pushed Jauregui off of him and shot at Jauregui five or six times. Jauregui fell to the ground, and Cardona fired the last of the shots while standing over Jauregui or fleeing the scene. Jauregui suffered three gunshot wounds to his buttocks or the back of his thigh, and one to the back of his arm or shoulder. He later died of his injuries.
Bryan Carrillo, who was standing nearby, turned to run away when he heard the first of the shots. When he was no more than 15 to 20 feet away from Cardona, one of the later shots struck Carrillo in the back, seriously injuring him.
DISCUSSION
Cardona raises several issues on appeal. He contends that the trial court erred when it gave a kill zone instruction with respect to the attempted murder charge. Cardona further contends that the prosecution presented insufficient evidence to support his conviction for attempted murder. He also contends that the trial court erred by giving jury instructions regarding self-defense by an aggressor. Next, he argues that the court erred in imposing a parole revocation fine. Finally, he contends that we must remand the case to the trial court to decide whether to exercise its discretion in light of Senate Bill No. 620. We agree with Cardona with respect to the kill zone instruction and reverse his attempted murder conviction, as well as the parole revocation fine, but we otherwise affirm.
Because we reverse Cardona's conviction for attempted murder in count 2, we need not address his additional contentions pertaining to this count, including whether it was proper to impose a sentence of 15 years to life for this count, and whether the trial court erred by imposing a sentence enhancement with respect to this count that the jury did not find true.
Cardona contends that the trial court erred by imposing a $300 parole revocation fine. We agree. Because Cardona was sentenced to life imprisonment with no possibility of parole, it was improper to impose a parole revocation fine. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1183.)
I. Kill Zone Instruction
Cardona argues that the trial court erred when it instructed the jury pursuant to a kill zone theory of liability for attempted murder. We agree.
The court instructed the jury as follows, pursuant to the then-current version of CALJIC No. 8.66.1: "A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the 'kill zone.' The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity.
"Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a 'kill zone' is an issue to be decided by you." When the court read this instruction to the jury, its wording varied slightly, but not materially.
A. Forfeiture
The Attorney General argues that Cardona forfeited this claim because his attorney failed to object to the kill zone instruction in the trial court. In general, the failure to object to an instruction bars a defendant from challenging the instruction on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326.) When an instructional error affects a defendant's substantial rights, however, a court may address it in spite of the failure to preserve the issue in the trial court. (People v. Lewis (2009) 46 Cal.4th 1255, 1294, fn. 28; §§ 1259, 1469.) "In this regard, '[t]he cases equate "substantial rights" with reversible error' under the test stated in People v. Watson (1956) 46 Cal.2d 818." (People v. Felix (2008) 160 Cal.App.4th 849, 857.) Because we find that instructional error in this case was reversible error under the People v. Watson test (see section I.C post, at p. 11), we conclude that Cardona did not forfeit the argument. (People v. Franco (2009) 180 Cal.App.4th 713, 719.)
B. Instructional error
" 'The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.] "It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation]." [Citation.]' [Citation.]" (People v. Alexander (2010) 49 Cal.4th 846, 920-921.) Accordingly, if the record contains no evidence that would support application of the kill zone theory, then the trial court erred by instructing the jury on that theory.
There is a crucial distinction between the mental states required for a defendant to be convicted of murder and attempted murder: "Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices." (People v. Bland (2002) 28 Cal.4th 313, 327 (Bland).) In contrast, " '[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' " (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith), quoting People v. Lee (2003) 31 Cal.4th 613, 623.)
This distinction has created complications in cases where a defendant attacks multiple victims. Under the doctrine of transferred intent, when a defendant fires a gun in an attempt to kill one victim, but the bullet strikes and kills a bystander, the defendant is guilty of murder even if he did not know the bystander was present. (Bland, supra, 28 Cal.4th at pp. 320-321.) But the doctrine of transferred intent does not apply when an unintended victim survives the attack. (Id. at pp. 326-331.) The court in Bland reasoned that applying the doctrine of transferred intent would make liability for attempted murder too vague: "The world contains many people a murderous assailant does not intend to kill. Obviously, intent to kill one person cannot transfer to the entire world. But how can a jury rationally decide which of many persons the defendant did not intend to kill were attempted murder victims on a transferred intent theory?" (Id. at p. 329.)
The Supreme Court in Bland, supra, 28 Cal.4th 313, introduced the kill zone theory to address another variation of this theme—situations in which a defendant attempts to kill an entire group of people in order to kill a specific victim. Because the defendant acts with the specific intent to kill everyone in the victim's vicinity, he is guilty of attempted murder of each member of the group. (Id. at pp. 329-330.) The theory of guilt here is not transferred intent, but rather concurrent intent, meaning that " 'the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity.' " (Id. at p. 329.)
The Bland court provided examples of situations in which a kill zone theory is appropriate. The paradigmatic example is that of " 'an assailant who places a bomb on a commercial airplane intending to harm a primary target on board [who] ensures by this method of attack that all passengers will be killed.' " (Bland, supra, 28 Cal.4th at pp. 329-330.) The Bland court also cited the example of People v. Vang (2001) 87 Cal.App.4th 554, 563-565, in which the defendants fired multiple rounds with high-powered, wall-piercing weapons at two occupied houses. Although the defendants primarily meant to kill one victim, they were convicted of 11 counts of attempted murder, one for each inhabitant of the house. (Id. at p. 563.) According to the Bland court, the court in Vang analyzed the case under the same reasoning as the kill zone theory, even if it did not use that name. (Bland, supra, 28 Cal.4th at p. 330.) In Bland itself, the court held that the kill zone theory was appropriate, noting that the defendant was liable for two counts of attempted murder for "fir[ing] a flurry of bullets at [a] fleeing car and thereby creat[ing] a kill zone." (Id. at p. 331.)
By contrast, when there is no evidence of an intent to kill an entire group of people, courts have held that the kill zone instruction is inappropriate. Thus, in People v. Stone (2009) 46 Cal.4th 131 (Stone), the defendant fired a single shot at a group of 10 people, not striking any of them. (Id. at pp. 134-135.) Our Supreme Court held that "[t]he kill zone theory simply does not fit the charge or facts of this case" because there was no evidence that the defendant intended to take the lives of the entire group in order to kill one victim. (Id. at p. 138.) In another case with similar facts, the Supreme Court held that "[t]he facts of this case do not establish that defendant created a 'kill zone' by firing a single shot from a moving car at a distance of 60 feet at [a] group of eight individuals." (People v. Perez (2010) 50 Cal.4th 222, 232 (Perez).) And in People v. McCloud (2012) 211 Cal.App.4th 788 (McCloud), we held that a kill zone theory did not support the defendants' conviction of 46 counts of attempted murder when they fired 10 shots into a crowded party. (Id. at pp. 799-800.)
The Attorney General argues that McCloud, Perez, and Stone are distinguishable because, in each case, the defendant did not fire enough shots to kill all of the victims for whom he was convicted of attempted murder. Here, however, Cardona was charged with only one count of murder and one count of attempted murder, and he fired at least five shots, including one that struck and seriously wounded Carrillo. But the defining test of the kill zone theory is whether "the evidence supports a reasonable inference that, as a means of killing the primary target, the defendant specifically intended to kill every single person in the area in which the primary target was located." (McCloud, supra, 211 Cal.App.4th at p. 803.) A correlation between the number of shots fired and the number of victims in the alleged kill zone is merely one relevant factor. The Attorney General also points out that, unlike the defendants in McCloud and Stone, Cardona had a primary target, namely Jauregui. In McCloud, supra, 211 Cal.App.4th at p. 801, we held that a kill zone instruction was inappropriate in part because there was no evidence that the attacker had a primary target. But the existence of a primary target, although relevant, is not sufficient for the application of the kill zone theory. Again, without evidence that the defendant intended to kill everyone in an area in order to kill the primary target, the kill zone theory is inapplicable. (Id. at p. 802.)
The facts of this case are a poor fit for the kill zone theory. The evidence showed that Cardona first fired his weapon after Jauregui stabbed him. As we explain below, because Cardona provoked the attack by drawing his gun and attempting to rob Jauregui, the shooting was not justifiable self-defense. Nevertheless, all the available evidence indicated that Cardona's primary motivation in shooting Jauregui was to defend himself. The shooting took place in a crowded party, but no witness testified that Cardona sprayed everyone near Jauregui with gunfire. Without evidence of an attempt by Cardona to kill everyone in a particular area in order to kill Jauregui, it was error for the trial court to give the kill zone instruction.
C. Prejudice
A state law instructional error does not require reversal of a conviction unless it is reasonably probable that the defendant would have obtained a better result in the absence of the error. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214, citing People v. Watson, supra, 46 Cal.2d at pp. 836-837.) We conclude that there was a reasonable probability that Cardona would have obtained a better result if not for the kill zone instruction, and we accordingly hold that the conviction for attempted murder must be reversed.
The only theory of attempted murder liability the prosecution presented to the jury was the kill zone theory. In closing arguments, the prosecution suggested that the kill zone theory allowed for a conviction of attempted murder in the absence of specific intent. The prosecutor argued: "When Mr. Cardona is up and he is looking at Mr. Jauregui on the ground, lying on the ground, with his back towards him and he continues to shoot him, what is his purpose? He is intending to kill Mr. Jauregui at that point in time. Right. And when you have that, ladies and gentlemen, and you have this instance where we are at a party with numerous people, . . . and you heard that there [were] people around them, these people who are near that shooting site are in a 'risk zone' this 'kill zone' and so when Mr. Carrillo gets hit, he becomes this transferred intent that the kill zone instruction talks about, . . . this concurrent intent to kill others." The prosecutor thus effectively invited the jury to conclude that Cardona was guilty of attempted murder of Carrillo because he shot at Jauregui while other people were nearby, even if he did not intend to kill anyone other than Jauregui. Even assuming the kill zone theory was applicable under our facts, the prosecutor seriously misstated the application of the theory by suggesting that Cardona could be guilty of attempted murder through transferred intent. As explained above, transferred intent does not apply to the kill zone theory, nor is it a valid theory for attempted murder.
In addition, the prosecutor may have created further confusion by describing the kill zone as a "risk zone." The term "zone of risk," which at the time appeared in the pattern jury instruction on the kill zone (CALJIC No. 8.66.1), suggested that a defendant may be guilty of attempted murder under a kill zone theory simply for placing others at a risk of being killed. This might encourage juries to convict defendants erroneously upon a finding of implied, rather than express, malice. None of the Supreme Court cases that have addressed the kill zone theory use the term "zone of risk" as a substitute for "kill zone." (See Bland, supra, 28 Cal.4th 313; Smith, supra, 37 Cal.4th 733; Stone, supra, 46 Cal.4th 131; and Perez, supra, 50 Cal.4th 222.)
Given the erroneous instruction and the prosecutor's misstatement of its application, it is not surprising that the jury struggled with its deliberations on attempted murder. Indeed, the jury submitted the following question to the court: "We need further clarification of the kill zone. Does there have to be intent to kill/murder in order to be found guilty of attempted murder? In other words, if someone is accident[al]ly shot in the kill zone, is this considered attempted murder?" The court's response was not written or transcribed in the record, but it apparently did not clear up the jury's confusion, because later the same day, the jury submitted another question: "Is disregarding/endangering human life and shooting, the same as intending to kill the primary victim by shooting everyone in the vicinity[?]" (Capitalization omitted.) This time, the jury withdrew the question before the court responded. These questions show that the jury had doubts about whether the kill zone instruction allowed it to find Cardona guilty of attempted murder even if he shot Carrillo only "accident[al]ly" or while "disregarding [or] endangering human life." Without the improper instruction, it is reasonably probable that the jury would have found Cardona not guilty of attempted murder of Carrillo. For this reason, the error was prejudicial, and reversal of Cardona's attempted murder conviction is required.
II. Sufficiency of the Evidence of Attempted Murder
Cardona argues that the prosecution failed to present sufficient evidence to support his conviction for willful, deliberate, and premeditated attempted murder. Although we have already concluded that his conviction must be reversed, we must address this issue because if the prosecution did not produce substantial evidence of attempted murder, it would be barred from retrying Cardona for this offense.
In reviewing the sufficiency of the evidence, "[w]e view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Griffin (2004) 33 Cal.4th 1015, 1028.) Under this standard, we conclude that the prosecution did introduce sufficient evidence to convict Cardona of willful, deliberate, and premeditated attempted murder.
The evidence introduced at trial regarding the circumstances of the shooting was contradictory. Some witnesses testified that Cardona fired two or three shots at Jauregui, then stood over him and fired two or three more shots after Jauregui had fallen face down on the ground. Another witness testified that Cardona fired the last few shots while he was fleeing from the party. Carrillo testified that Cardona was within 20 feet of him, and possibly even closer, at the time of the shooting. From all this testimony, a jury could reasonably conclude that Cardona aimed each of his shots at Jauregui, and that he hit Carrillo only because he missed his primary target. Alternatively, a jury could conclude that Cardona aimed at least one of his shots at Carrillo to thwart anyone from preventing his escape. As the Attorney General correctly points out, " 'The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill." ' " (Smith, supra, 37 Cal.4th at p. 741.) Furthermore, attempted murder requires that the defendant act with the specific intent to kill, but it does not require that the defendant have a specific victim in mind. (Stone, supra, 46 Cal.4th 131, 140-141.) Finally, " '[t]he process of premeditation and deliberation does not require any extended period of time.' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Thus, the prosecution introduced sufficient evidence that could support a conviction for willful, deliberate, and premeditated attempted murder.
III. Self-Defense Instructions
Cardona contends that the trial court erred by instructing the jury on self-defense by an aggressor and contrived self-defense. He argues that there was insufficient evidence to support these instructions. We disagree.
A killing is justified and not punishable if it was committed in perfect self-defense. (People v. Lopez (2011) 199 Cal.App.4th 1297, 1305; § 197.) "For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] . . . To constitute 'perfect self-defense,' i.e., to exonerate the person completely, the belief must also be objectively reasonable." (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) A person who has been attacked may stand his ground and need not attempt to retreat. (People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346-1347.) When the killer acted as an initial aggressor or contrived the need for self-defense, however, he may not claim self- defense as a justification unless he can show that he tried in good faith to refuse to continue fighting, and caused his opponent to be aware both that he wanted to stop fighting and that he actually had stopped fighting. (People v. Button (1895) 106 Cal. 628, 632.)
Cardona argues that he was not the initial aggressor because it was his friend who initiated the confrontation with Jauregui by stealing the noz tank, and that Cardona drew his gun only after Jauregui stabbed him. But at least one witness testified that Cardona first approached Jauregui with his gun drawn, and only then did Cardona's friend move in and take the noz tank. Furthermore, several witnesses said they saw Cardona get into fights and commit at least one robbery prior to the shooting. This was sufficient evidence to put into question whether Cardona had initiated the attack on Jauregui and created the need to use self-defense. Accordingly, the jury instruction on this issue was proper. (See People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 [self-defense instruction required where there was sufficient evidence for a jury to find defendant had requisite mental state].) IV. Senate Bill No. 620
In October 2017, the Governor signed into law Senate Bill No. 620. The bill amended section 12022.5 and section 12022.53, which define enhancements for defendants who personally use a firearm in the commission of certain felonies. The law became effective January 1, 2018. Under Senate Bill No. 620, "[t]he court 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 by this section." (Sen. Bill No. 620, §§ 1 & 2, amending §§ 12022.5, subd. (c), 12022.53, subd. (h).) Prior to the enactment of Senate Bill No. 620, these enhancements were mandatory, and the trial court lacked the authority to strike or dismiss them. (See, e.g., People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363, citing former § 12022.53, subd. (h).)
The trial court sentenced Cardona on January 7, 2015, before Senate Bill No. 620 was enacted. The court imposed a 25-year enhancement pursuant to section 12022.53, subdivision (d) on each of the two counts for personally and intentionally discharging a firearm and causing great bodily injury or death. Because Cardona's case was still pending before the Supreme Court on January 1, 2018, his judgment was not yet final when Senate Bill No. 620 became effective. (See People v. Vieira (2005) 35 Cal.4th 264, 305-306.)
The record shows that the jury found this allegation true with respect to count 1, the murder of Jauregui, but found only a lesser allegation true with respect to count 2, the attempted murder of Carrillo. Because we overturn Cardona's conviction on count 2, the trial court's apparent error in imposing this enhancement is moot.
Because nothing in the law suggests the Legislature intended it to apply prospectively only, the change in the law applies retroactively to those like Cardona whose sentences were not final at the time Senate Bill No. 620 became effective. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
Nevertheless, we agree with the Attorney General that we need not remand this case to allow for a potential new sentencing hearing because "the record contains a clear indication that the [trial] court will not exercise its discretion in the defendant's favor." (People v. McDaniels (2018) 22 Cal.App.5th 420, 427.) We may reach this conclusion even if the trial court did not "specifically state[ ] at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court's statements and sentencing decisions to infer what its intent would have been." (People v. Jones (2019) 32 Cal.App.5th 267, 273.)
In this case, by ordering Cardona's sentence for attempted murder to run consecutively to his sentence for murder, rather than concurrently, the trial court indicated that it did not wish to exercise its discretion in Cardona's favor. Furthermore, by reversing his conviction for attempted murder, we have already removed a 15-year-to-life term and a 25-year enhancement from Cardona's sentence. Although there was no evidence to support a kill-zone instruction, Cardona fired his weapon at least five times at a crowded party, killing one victim, seriously wounding another, and placing other lives at risk. There is no reasonable probability that the trial court would exercise its discretion to strike the remaining enhancement and reduce Cardona's sentence by an additional 25 years. Nonetheless, if Cardona is retried on the attempted murder charge, there is no harm in permitting the trial court to consider striking the enhancement on the murder charge and we so order.
DISPOSITION
The judgment of the trial court is reversed with respect to count 2, attempted murder. The parole revocation fine is reversed. In all other respects, the judgment is affirmed. If the prosecution elects to retry appellant for attempted murder, the trial court may, during those proceedings, consider whether to exercise its discretion to strike for purposes of sentencing the firearm enhancement on appellant's murder conviction.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Presiding Justice of Division Two of the Second Appellate District Court of Appeal, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.