Opinion
A148032
10-05-2018
THE PEOPLE, Plaintiff and Respondent, v. DION ANDRE DAVIS II, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR 933300A)
Dion Andre Davis II appeals from a judgment of conviction on eleven criminal counts, issued after a jury trial, for his role in a Lake County home invasion and its aftermath. He argues that the trial court erred in discharging a juror for good cause during deliberations; the prosecution committed a Brady violation by withholding evidence regarding a detective's misconduct in investigating the case; we should stay under Penal Code section 654 his count 5 sentences for assault with a semiautomatic firearm and the attendant great bodily injury (GBI) and firearm enhancements or, in the alternative, stay the GBI sentence (after initially arguing we should reverse this finding for lack of evidence); the court miscalculated or made a clerical error regarding the sentences imposed for counts 5 and 12; and we should remand to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements under sections 12022.5 and 12022.53. We stay Davis's six years and four months sentence for count 5 and the attendant enhancements under section 654, and remand for the trial court to exercise its discretion regarding the firearm enhancements. We otherwise affirm.
Our statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
In September 2013, a special criminal grand jury in Lake County filed an indictment charging Davis and three others with sixteen criminal counts related to a June 26, 2013 home invasion by several perpetrators and their subsequent efforts to evade the police. Davis was charged with attempted murder of Jacob Bogner (count 1); robbery of Jacob and Martha Jeneane Bogner (count 2); burglary of an inhabited dwelling (count 3); assault of Jacob with a firearm (count 4); assault of Jacob with a semiautomatic firearm (count 5); mayhem on Jacob (count 6); grand theft (count 7); vehicle theft (count 8); vandalism (count 9); attempted murder of police officer Celli (count 10); use of threats or violence to prevent Celli and officer Craig Clausen from performing their duties (count 11); assault of Celli with a semiautomatic firearm (count 12); assault of a police officer (count 13); grossly negligent discharge of a firearm (count 14); felon in possession of a firearm (count 16); and conspiracy to commit burglary and robbery (count 17). Also, two enhancements were alleged in many of the counts: a GBI enhancement attached to counts 1 through 5, 7, and 17 and a personal use of a firearm enhancement attached to counts 1 through 7, 10 through 13 and 17.
For clarity's sake, we will refer to Martha Jeneane Bogner and Jacob Bogner as "Jeneane" and "Jacob," and to Jeneane's husband, Ronald "Ronnie" Bogner, as "Ronnie." We mean no disrespect by doing so.
Davis and Gregory Pierre Elarms were tried together beginning in January 2015. Another alleged perpetrator, Tyler Gallon, testified. Evidence presented indicates that on June 26, 2013, Davis, Gallon, Sean Foss, and a fourth man, who the prosecution alleged at trial was Elarms, invaded the Bogner home to steal guns. At the time, Davis was demanding Gallon pay him thousands of dollars for damage to a car Davis had rented for Gallon, money Gallon did not have. The men discussed the invasion beforehand several times, including at the home of Davis's aunt, Tishshonna Scott. Foss recommended the Bogner home as a good target. He had worked for Ronnie, knew the home was in an isolated area, and believed Ronnie stored a lot guns there. The four decided to invade the home and steal the guns.
Evidence further indicates that on the morning of June 26, Davis's girlfriend, Jenaya Jelinek, Davis, Gallon, Foss and the fourth man drove in a Chevy Malibu to the Bogner home. The men exited the Malibu in front of the Bogner home and Davis told Jelinek to drive down the hill and wait for his phone call. Jeneane, her son Jacob and her two grandchildren, ages five and seven, were inside the house.
Jeneane testified she was in her home when she heard the sound of her driveway motion detector. She stepped out her front door to investigate, and saw a man dressed in all black and a hoodie exit the passenger-side rear door of a car and approach her. He was not wearing a mask. When she asked him what he wanted, he asked for "Lonnie," which was similar to her husband's name. Three other men, all wearing skeleton-type masks, then exited the car and ran toward the front door.
Jeneane said she ran inside and tried, unsuccessfully, to lock the front door. The first man kicked the door open and came inside, pushing her back. She pushed down his hood and saw his facial features and dreadlocks, and nine months later identified him as Elarms. She attempted to prevent the others from entering her house by trying to push the door shut and lock it. An arm came around the door holding a gun. She yelled to Jacob to call the police.
Jacob testified that he was in his bedroom when he heard an unusually loud noise. As he opened his bedroom door to investigate, he heard his mother call for help. He went into a hallway and saw Davis, who was not wearing a mask, standing about eight feet away and pointing at him with what looked like a Glock gun with an extended magazine. Three other men were standing near Davis, and Jacob noticed one of them was wearing a skeleton-type mask. Davis pointed his gun at Jacob and led him back to his bedroom, where Davis took $150 in cash on a nightstand and said "[t]his is the day you're going to die." He told Jacob to get on the ground face first and left the room.
Fearing for his mother and the children, Jacob testified, he ran into the hallway. When Davis saw Jacob, he pointed his Glock gun at him again. Jacob ran back into his bedroom, locked the door and stood by it. Davis kicked the door twice and fired at it, shooting Jacob in the knee, causing him to bleed. Davis again kicked the door and it opened. He yelled, "Where are the guns? Where are the guns?" Jacob said he did not know, and Davis, after also asking, "Where is the money?," left the room.
Jacob further testified that he again went into the hallway and Davis chased him back into his bedroom. Jacob closed his now mangled bedroom door, but Davis kicked it open. As Jacob stayed in an "unthreatening position," Davis entered, pistol-whipped him with the Glock gun four or five times on the top of his head and left the room as Jacob lay on the floor bleeding. Jacob tried to call the police on his cell phone but could not get a connection. Davis twice and another man once entered the room and searched it; later someone reached into the room and took Jacob's cell phone. After Jacob thought the men had left, he searched and found his mother and the children in a back bedroom talking to 911. His mother gave the phone to Jacob, who spoke with the police dispatcher.
The evidence further indicates that Davis, Gallon, Foss and the fourth man fled the home in the Bogners' white Cadillac Escalade. Jelinek followed them in the Malibu. According to Jelinek, the four men abandoned the Escalade and got into the Malibu. Gallon testified that he, Foss and Davis pushed the Escalade off a cliff. It was later found by police at the bottom of a mountainside.
Clearlake police officer Tim Celli testified that on the morning of the incident, he spotted cars that appeared to match the descriptions broadcast by a police dispatcher. He eventually pursued the Malibu at a high speed. Concerned about a possible gun fight, he maneuvered his vehicle to hit the Malibu on the passenger side in an attempt to keep the passenger doors closed. This caused both cars to come to a complete stop in a field area. Three men got out of the driver's side of the Malibu and fled into a wooded area. Celli ran toward the wooded area and heard gunshots. He returned to his vehicle, where he discovered a woman in the Malibu, later identified as Jelinek, and arrested her. An investigator with the district attorney's office concluded from evidence found in the field area that a bullet fired from the wooded area came within five feet of Celli.
Gallon testified that he, Davis and Foss fled into the wooded area toward the home of Scott, Davis's aunt. As he ran through the woods, Gallon saw Davis fall on the ground holding his gun and heard three gunshots from "right there." After the three arrived at Scott's home, police approached and the three men retreated to a crawlspace. When the police demanded via loudspeaker that they come out, Gallon and Foss surrendered, but Davis was reluctant to because, he said, he "couldn't get caught with a gun." He later surrendered.
A Lake County Sherriff's Department detective testified that the police subsequently searched Scott's house pursuant to a warrant. Among other things, they seized skeleton ski masks, black hoodies and a Glock gun hidden under the back deck of the home. Other evidence indicates the Glock had an extended magazine in its handle from which bullet casings recovered from the hallway outside of Jacob's room and from the field area were fired.
The jury found Davis guilty of most of the counts before it (the court dismissed counts 8 and 9). The jury could not reach verdicts on the attempted murder counts (counts 1 and 10) or the felon in possession of a firearm charge (count 16). The court declared a mistrial on the attempted murder counts and dismissed the felon in possession count in the interest of justice. The jury was unable to reach a verdict on any of the counts brought against Elarms, and the court declared a mistrial as to those counts.
The court imposed consecutive sentences consisting of a principal term of 28 years for count 6, mayhem, which included 20 years for personal use of a firearm; 16 months for count 3, first degree burglary; six years and four months for count 5, assault with a semiautomatic firearm against Jacob, which included three years and four months and one year for personal use of a firearm and GBI enhancements respectively; five years and four months for count 12, assault with a semiautomatic firearm upon Celli, which included three years and four months for a firearm enhancement; 8 months for count 17, conspiracy; and three years for count 2, first degree robbery, plus an indeterminate 25-years-to-life sentence for another firearm enhancement. The court imposed a concurrent one-year sentence for count 7, misdemeanor grand theft, and imposed and stayed sentences for counts 4, 11, 13, and 14 under section 654.
Davis filed a timely notice of appeal. At our request, both parties submitted supplemental briefing regarding the jury's count 5 conviction and the attendant GBI and firearm enhancement findings.
DISCUSSION
I.
Davis Has Failed to Show the Trial Court Erred in Discharging Juror No. 11.
Davis first argues the trial court's discharge of Juror No. 11 after a day of jury deliberations prejudicially violated his rights to due process and a fair trial under the Sixth and Fourteenth Amendments. We disagree.
A. The Relevant Proceedings
The morning after jury deliberations began, Juror No. 11 did not appear in court without excuse. The court held a phone conference with him with counsel present. The court asked the juror if he was ill, to which Juror No. 11 replied, "I didn't sleep much last night, and I'm really tired." The court said lack of sleep was not an illness and asked him to explain, without disclosing "what's going in the jury room," if there was a reason he believed he would not be able to continue as a juror. Juror No. 11 said the other jurors "were doing a horrendous job of . . . . ." The court interrupted and said it did not want to know the reasons, and that it seemed the juror was having "difficulties in deliberating and that's why [he did not] want to come in." Juror No. 11 said he had not slept very well because "he was getting angry" and hoped to catch up on sleep. The court instructed him to appear in court to discuss the matter further.
On Juror No. 11's arrival, the court repeated that it did not want to know anything having to do with jury deliberations. Referring to the juror's "anxiety," it asked him if his lack of sleep would continue if he remained on the jury. The juror said no and that the only reason he could not sleep was because he was so angry. The court asked if he would be able to focus on his duties as a juror, and the juror replied, "Okay, if I answer honestly, you might keep me." The court reminded him to answer honestly, and he replied, "Yes, I probably could." He said his sleep difficulties usually ended when his anger subsided, which usually took a day, and he answered affirmatively when the court asked if he could deliberate that day.
The court asked Juror No. 11 if he would be able to discuss the case with the other jurors and he answered that was not the problem. The court said it did not want to know what had happened, only whether he would be able to discuss the case with the other jurors. Juror No. 11 replied, "Okay. What angered me more than anything else was their attitude." The court said it "did not want to get into that," and only wanted to know whether he would be able to discuss the case with the other jurors in the jury room. He replied, "Oh, God. I would say probably not." Asked again about his ability to discuss the case with the other jurors, Juror No. 11 replied, "Well, right now, my opinion of fellow jurors is so low that, you know, I don't have much respect for them."
The court asked Juror No. 11 if it would be correct to conclude he would not be able to discuss the case with other jurors. He replied that he hoped the court would dismiss him. The court reiterated its primary concern was whether he could discuss the case and evidence with the other jurors and asked if he would be able to give his opinion, listen to other jurors' opinions, and discuss differing opinions. The juror replied, "Probably."
The court instructed the juror to wait outside the court's chambers and held a hearing with counsel. The prosecutor expressed various concerns, including that Juror No. 11 would not be able to deliberate, since he had said he would not be able to discuss the case with the other jurors. Davis's counsel asserted the court bailiff had told him other jurors yelled at Juror No. 11, and were not treating Juror No. 11 with respect. He argued Juror No. 11's expressed concerns were not evidence that he could not deliberate. The bailiff briefly testified, and said only that loud, unidentifiable voices of jurors could be heard coming from the jury room during the first day of deliberations.
Counsel for codefendant Elarms asserted the situation was "complicate[d]" by "the issue of race." He said Juror No. 11 was the only juror who had any connection with the African-American community (Juror No. 11 had identified his daughter as African-American), and continued, "I don't know if that's the subtext of what's going on in there or not . . . ." He asserted that Juror No. 11 did not indicate he could not deliberate and should remain on the jury.
The court found good cause to discharge Juror No. 11 based on his disobeying the court's order to appear that morning without claiming sickness; his contradictory answers when asked if he would be able to discuss the case with other jurors; and the court's conclusion, based on Juror No. 11's conduct and demeanor in chambers, that the juror's indication that he would not be able to discuss the case with other jurors was truthful, and that he did not intend to deliberate, or have the ability to discuss the case, with other jurors. Before the court discharged Juror No. 11, the jury had reached verdicts on two counts.
B. Analysis
The trial court may discharge a juror after the submission of the case to the jury if, upon good cause being shown, the juror is found to be unable to perform his or her duty or requests a discharge. (§ 1089.) "A trial court made aware of the possibility of a juror's misconduct, and particularly possible misconduct occurring during the jury's deliberations, is placed on a course that is fraught with the risk of reversible error at each fork in the road. [Citation.] The court must first decide whether the information before the court warrants any investigation into the matter. [Citation.] If some inquiry is called for, the trial court must take care not to conduct an investigation that is too cursory [citation], but the court also must not intrude too deeply into the jury's deliberative process in order to avoid invading the sanctity of the deliberations or creating a coercive effect on those deliberations [citation]. After having completed an adequate (but not overly invasive) inquiry into the misconduct issue, the trial court must then decide whether, under section 1089, there is 'good cause' to excuse the juror at issue." (People v. Fuiava (2012) 53 Cal.4th 622, 710.)
Section 1089 states in relevant part: "If at any time . . . after the final submission of the case to the jury, a juror . . . upon . . . good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged . . . ."
We review a court's discharge of a juror pursuant to section 1089 for abuse of discretion under the "demonstrable reality" test. (People v. Armstrong (2016) 1 Cal.5th 432, 450; People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) Compared to the substantial evidence standard of review, "[t]he demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion . . . . [A] reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied." (Barnwell, at pp. 1052-1053.)
Davis argues the trial court did not have sufficient cause to discharge Juror No. 11 because there was not demonstrably real evidence that the juror could no longer deliberate, only speculation. He points out that regardless of Juror No. 11's feelings about his fellow jurors, the jury had reached a verdict on two counts before his discharge. He further argues the trial court failed to conduct a sufficient inquiry "into the apparent problem with what [Juror No. 11] described as the jurors' 'attitudes.' " He cites People v. Keenan (1988) 46 Cal.3d 478 (Keenan) for the proposition that a court can and should intervene when given notice of potential jury-room problems that, if unattended, can and might result in the granting of a mistrial or a new trial motion.
Davis's claim that the trial court discharged Juror No. 11 based on "speculation" lacks merit. In a case Davis cites, Keenan, the court held that "[g]rounds for investigation or discharge of a juror may be established by his statements and conduct." (Keenan, supra, 46 Cal.3d at p. 532.) Here, the trial court explicitly relied on Juror No. 11's conduct and demeanor during the court's questioning—including his negative response at one point to whether he could discuss the case with other jurors—in finding he would not be able to deliberate with other jurors. And indeed, Juror No. 11 gave contradictory answers when asked repeatedly if he could discuss the case with other jurors. In the space of a few minutes, Juror No. 11 responded that discussing the case with the other jurors was not the problem, that he was "probably not" able to discuss the case with them, and that he "[p]robably" could discuss the case with them. We defer to the trial court's conclusions about Juror No. 11's demeanor and credibility in providing these answers. (People v. Lomax (2010) 49 Cal.4th 530, 590 [appropriate to defer to a trial court's factual findings regarding jurors based on their testimony and demeanor in discharging a juror for good cause]; see also People v. Debose (2014) 59 Cal.4th 177, 201-202 [deferring to a trial court's determination that a juror could not be a fair and impartial juror, despite her statements to the contrary, because "[w]e do not reweigh the evidence to independently determine whether [the juror] was being completely truthful"].)
Also, Juror No. 11 engaged in serious misconduct by failing to appear in court for the second day of deliberations. When the court asked him if he was ill, Juror No. 11 merely said the other jurors were doing a "horrendous job" and he wanted to catch up on sleep. The court found that Juror No. 11's disregard of his duty to appear, coupled with his conduct and demeanor during the court's questioning, provided sufficient reason to discharge him. The trial court's finding was based on "demonstrably real evidence" that provided good cause for discharging Juror No. 11.
Davis also claims the trial court violated his federal constitutional right to a fair trial free from racial discrimination by failing to conduct a sufficient inquiry into jury deliberations. He criticizes the court's unwillingness to hear Juror No. 11's explanations of what type of "attitude" other jurors exhibited that angered him, contending their attitudes may have been due to racial bias.
The People argue this racial bias claim is "speculative" and without support in the record. We agree. Juror No. 11's statements to the court about other jurors, including his belief that they were doing a "horrendous job," his complaint about their "attitudes," and his stated lack of respect for them, do not indicate, or even hint, that he had any concerns about racial bias. The question of race was not raised until the court's hearing with counsel, when Elarms's counsel mentioned it. Even then, Elarms's counsel merely stated, "I don't know if that's the subtext of what's going on in there or not . . . ." (Italics added.) In other words, Elarms's counsel acknowledged he was speculating, and provided no support for his conjecture. His speculation was insufficient to merit further inquiry and investigation into the sensitive deliberation process.
Davis asserts without record citations that he and Elarms are African-American and that other than Juror No. 11, all of the jurors were Caucasian. For the sake of argument, we will assume Davis's assertions are correct, despite the lack of record citations. He further notes that Juror No. 11 stated he was born in Mexico, asserts Juror No. 11 has a Hispanic surname and notes that Juror No. 11 stated his daughter is African-American.
Further, the trial court did conduct a significant inquiry and investigation upon learning of Juror No. 11's misconduct. Confronted with a juror who failed to appear as required to deliberate with the other jurors, the court extensively questioned the juror by telephone and in chambers about whether he had the ability to deliberate further, while trying to avoid intruding into the deliberation process, and then held a separate hearing with counsel to hear argument. The court found Juror No. 11's responses and his demeanor indicated he neither had the intention nor the ability to deliberate further, findings that are supported by the record. Under these circumstances, the court had no duty to further inquire or investigate. (See People v. Fuiava, supra, 53 Cal.4th at p. 714 [trial court has the discretion to decide that a juror's disqualification is so clear that further investigation is " 'pointless' "].) The trial court did not err in its investigation of Juror No. 11's failure to appear, or its discharge of him.
II.
Davis Has Failed to Show There Was a Brady Violation.
Davis next contends the trial court wrongly denied his motion for a new trial because the People failed during trial to disclose potentially exculpatory evidence in violation of his due process rights under Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady). This evidence is from the Lake County Sheriff's Department's internal investigation into the conduct of one of its detectives, Douglas Dahmen, regarding a one-time suspect in the case, Dexter Currington. Currington was arrested and detained for seven months, at which time charges against him were dismissed based on an alibi he had provided to Dahmen, but which Dahmen had not reported or properly investigated. Davis contends this evidence raises questions about Dahmen's investigative conduct regarding Jacob and Jeneane. The People argue Davis's claim lacks merit, both because it was not reasonably probable that the withheld evidence would have aided Davis's case, and because the evidence withheld provides no more information than what was already available to Davis and presented to the jury at trial. We agree with the People.
A. The Relevant Background
1. Dahmen's Interviews of Jacob and Jeneane
Jacob testified that when he was in the hospital, before Dahmen interviewed him, his girlfriend showed him an online news article about the incident that included a photograph of Davis. Jacob recognized Davis as the man who shot and pistol-whipped him. At trial, Jacob testified that he had a clear look at Davis's face, and was "positive" that Davis shot him.
Dahmen and his partner, Detective Keener, interviewed Jacob on or about July 2, 2013, following Jacob's release from the hospital. Whether or not Jacob was shown a photo of Davis at this time is less than clear. Dahmen testified that he did not prepare a photo lineup of suspects for this July 2 interview, but that Jacob identified Davis as the man who shot and pistol-whipped him from the news article photograph. Keener first testified that Jacob identified Davis from a photo lineup, and then contradicted himself by testifying that Jacob did not look at any photo lineup with Davis in it. Jacob testified that he looked at a "six pack" of photographs that Dahmen showed him. He did not recall if he identified Davis from the six pack or if he mentioned the online news article.
Dahmen initially testified that after Jacob identified Davis from the news article photo, Dahmen did not show him any photo lineups. Dahmen, also inconsistently, stated that he showed "quite a few photo lineups" to witnesses regarding the incident but could not recall whether he showed one to Jacob or not. Also, Dahmen said Keener showed Jacob a photo lineup during a subsequent interview, but could not recall who was depicted in that lineup.
Dahmen testified that he also showed Jeneane photo lineups of potential suspects on July 2, 2013. Dahmen and Keener both testified that Jeneane identified Dexter Currington as the fourth assailant from these photo lineups, which led to Currington's indictment, arrest and detainment. Jeneane remembered that Dahmen "seemed excited" when she identified Currington from a photo lineup he showed her.
No recording of this interview with Jeneane was ever located. Keener testified that he did not record it and did not know whether Dahmen did. Dahmen testified that he was not sure why it was not recorded. Jeneane remembered that Dahmen recorded it because he stated the time and asked her to state her name.
2. Dahmen's Misconduct Regarding Dexter Currington
Dahmen testified that he interviewed Currington at the Lake County Jail on September 18, 2013. Currington gave Dahmen the names of two people who would attest to him being elsewhere on the day of the home invasion, but Dahmen did not contact these people or promptly write a report about the interview; he testified he was waiting for a callback from a youth clinic regarding some related video, and then forgot about the matter. About seven months later, on March 28, 2014, after being asked by the district attorney and Dahmen's sergeant about the interview, Dahmen finally wrote his report and provided his recording of the Currington interview to the district attorney. During the seven-month period between the interview and Dahmen's preparation of his report, Currington remained in custody. Following Dahmen's report, the exculpatory information was verified and the district attorney dismissed charges against Currington. Regarding his failure to further investigate Currington's alibi, Dahmen testified that it slipped his mind; he also said he did not normally delay writing a report for so long.
The prosecution contended at trial that the fourth assailant was Elarms, but the jury was unable to reach any verdicts on the charges against Elarms.
3. Davis's Motions Regarding Dahmen's Investigative Conduct
Davis filed motions regarding Dahmen before, during and after the trial. In the course of these motions, the trial court found that Dahmen's conflicting accounts about the facts surrounding the identification and arrest of Currington caused the district attorney to question Dahmen's credibility, and that the district attorney related these concerns to the defense as early as March 2014, before trial. In July 2014, Davis filed a motion for pretrial discovery requesting "evidence that Detective Dahmen may have deliberately delayed production of evidence to the Prosecution that may amount to Brady evidence." The prosecution responded that it had not determined whether Dahmen's delay constituted a Brady violation by Dahmen, that all written documents in the prosecution's possession were disclosed to defense counsel during discovery, and that Dahmen first said he did not interview Currington, then said Currington invoked his Miranda rights, and then said he forgot about the interview until its recording surfaced. The trial court ruled that all pertinent discovery obligations had been met and denied Davis's motion for further discovery.
In October 2014, before trial began, Davis filed a motion raising Pitchess and Brady issues seeking documents regarding any investigations of, or possible or actual disciplinary action taken against, Dahmen due to his dishonesty, fabrication of evidence, racial bias or evidence tampering. The prosecution joined in Davis's Pitchess/Brady motion, requesting all personnel documentation disclosed to Davis. The court heard the motion and conducted in-camera interviews with all parties holding records regarding Dahmen. It authorized the disclosure of a report indicating that Dahmen was counseled for failing to turn over information to the district attorney regarding his interview of Currington. The court determined none of the other personnel information requested by Davis and the prosecution had evidentiary value. On January 7, 2015, trial began. On January 21, 2015, the Sheriff's Department began its internal investigation. A day later, the People gave their opening statement at trial.
A Pitchess motion seeks to compel disclosure of a law enforcement officer's personnel information when it is material to the defense's case. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)
On February 19, 2015, during trial, Davis's counsel orally made another Pitchess/Brady motion. Following in-camera hearings with the Sheriff's Department and an open hearing with Dahmen, the court declined to order the release of any additional documentation, to dismiss the case or to declare a mistrial.
On February 20, 2015, the Sheriff's Department completed its internal affairs (IA) report regarding Dahmen. The department gave its sealed report to the prosecution, who returned it to the Sheriff's Department unopened. On March 2, 2015, the jury found Davis guilty on most of the counts.
Based on the IA report, a departmental review panel determined Dahmen had committed certain violations, including perjury. The Sheriff subsequently found Dahmen had deficiently performed his duties, but concluded the review panel's findings of perjury and untruthfulness could not be sustained. The Sheriff terminated Dahmen's employment.
Davis filed two post-trial Pitchess/Brady motions, which were heard in June and August 2015. As a result, the IA report, IA interview recordings, emails related to the investigation, and the district attorney's Brady report were given to Davis. Davis subsequently filed a motion for a new trial on the ground that the prosecution suppressed impeachment evidence about Dahmen until after the trial, which motion the court denied, adopting its 28-page tentative ruling issued in March 2016 after making a minor, immaterial correction.
B. Analysis
"[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) However, not every violation of the "prosecution's broad duty of disclosure" constitutes a Brady violation. (Strickler v. Greene (1999) 527 U.S. 263, 281.) A true Brady violation occurs only when the prosecution's "nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." (Ibid.) A defendant is entitled to a new trial only when the net effect of improperly withheld evidence makes it reasonably probable that, if the evidence had been disclosed, the outcome of the case would have been more favorable to the defendant. (Kyles v. Whitley (1995) 514 U.S. 419 (Kyles).) On appeal, "conclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim [citation], are subject to independent review." (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
Davis first argues the prosecution's withholding of potentially exculpatory evidence in possession of the Sheriff Department "evidences a woeful misapprehension of the prosecution's due process obligations." He argues the prosecution had the duty to disclose all such evidence, including that known only to the Sheriff's Department. He relies on Kyles, in which the court held a prosecutor violated Brady by failing to disclose favorable evidence to the defense, even though police had failed to tell the prosecution about the evidence. (Kyles, supra, 514 U.S. at p. 421.)
Davis correctly asserts that the prosecutor had the duty to be aware of potentially exculpatory evidence and to disclose such evidence to him. However, he does not establish that if the evidence had been disclosed, it is reasonably probable the outcome of the case would have been more favorable him. Without this showing, there can be no Brady violation. The evidence relates to Dahmen's investigation of Currington. Davis contends the withheld evidence would have demonstrated to the jury that Dahmen's account of his interviews with Jacob and Jeneane was suspect, particularly in light of his "apparent" suggestion to Jeneane that she identify Currington. As a result, the jury, Davis posits, could have reasonably believed Dahmen coerced Jacob into identifying Davis as Jacob's assailant, making Davis's acquittal a reasonable probability.
Davis's argument fails for several reasons. First, there is no direct evidence that Dahmen suggested that Jeneane identify Currington. Any inference that he did so—which Davis apparently bases on her testimony that he appeared "excited" when she reviewed the photo lineup and identified Currington—is at best attenuated.
Second, and more important, it is not reasonably probable that the withheld evidence of Dahmen's misconduct regarding Currington would have led to a better outcome for Davis for two reasons. Davis's counsel cross-examined Dahmen on his failure to follow up on Currington's exculpatory information and on the absence of recordings for Dahmen's interviews of Jacob and Jeneane. In closing argument, Davis's counsel emphasized all of these matters to argue, "When you have improper investigation, you're going to come up with improper results." It was to no avail, possibly for the reason we turn to next.
Davis does not establish that any aspect of his criminal liability depended on Dahmen's testimony or his investigative activities. Further, the evidence of Davis's liability was strong. Jacob testified at trial that he recognized Davis from a photograph in an online news article about the incident before he ever spoke to Dahmen. He was "positive" that Davis was the man who attacked him with a Glock gun and saw Davis's face "clearly" on the day of the incident. Jelinek testified that she, Davis's girlfriend, dropped him and others off at the Bogner home and picked up the men after they had fled in the Bogner's Escalade. Davis's accomplice, Tyler Gallon, testified about Davis's involvement in the home invasion and its aftermath, including that Davis was the only participant to use a gun, that Davis shot Jacob and that he heard Davis fire shots while they were in the woods. Further, Gallon's testimony was corroborated by other evidence. Along with what we have already mentioned, this included the Glock gun registered to Davis that police recovered from Davis's aunt's house and the bullet casings found in the hallway outside of Jacob's room and the field area that matched the recovered Glock's magazine.
Given this plethora of evidence against Davis unrelated to Dahmen's investigative activities, and given Davis's use of Dahmen's misconduct to impeach Dahmen's credibility at trial, it is not reasonably probable that additional evidence regarding Dahmen's misconduct would have affected the outcome of the case in Davis's favor. Under Kyles, there was no Brady violation. The trial court did not err in denying Davis's motion for a new trial.
Davis also argues the prosecution's withholding of evidence regarding Dahmen violated his constitutional due process rights. However, a "constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." (United States v. Bagley (1985) 473 U.S. 667, 678.) For the same reasons we have determined there was no Brady violation, we conclude there was no due process violation, either.
For these reasons, the trial court did not err in denying defendant's Brady motion.
III.
Davis's Sentences for Count 5 and the Attendant Enhancements Must Be Stayed.
Initially, Davis argued we should reverse the jury's count 5 GBI enhancement finding for lack of evidence that Davis's pistol-whipping of Jacob resulted in any discernible injuries. In supplemental briefing, he changed his position. He now argues we should stay under section 654 his entire count 5 sentence, six years and four months (for assault with a semiautomatic firearm (two years), GBI (one year) and personal use of a firearm (three years and four months)), because the jury's determinations were based on his shooting of Jacob, the same act that formed the basis for his count 6 mayhem conviction. He also argues that, should we conclude the jury's count 5 determinations were based on the pistol-whipping, we should stay the GBI sentence under section 654.
The People agree with Davis that the count 6 mayhem conviction was based on Jacob's injuries from the shooting incident. However, they argue, the jury based its count 5 determinations on the pistol-whipping incident, so the resulting sentences should be affirmed.
We conclude the jury based its count 5 determinations on the shooting incident. Further, we conclude that we must stay the resulting sentences for the count 5 conviction, including the two accompanying enhancements, under section 654 because it and Davis's count 6 mayhem conviction are based on the same act. We address each of these issues now.
A. The Shooting Was the Basis for the Jury's Count 5 Determinations.
1. The Record Does Not Disclose the Basis for the Jury's Count 5 Determinations.
We first must determine the basis for the jury's count 5 determinations. This is not easily discerned from the record. In the indictment, Davis was charged with two counts of assault, each accompanied by the same enhancement allegations. Count 4 alleged under section 245, subdivision (a)(2) that Davis had committed assault with a firearm; count 5 alleged under section 245, subdivision (b) that Davis had committed assault with a semiautomatic firearm. The allegations contained in the two counts, which were very general, were otherwise identical.
Further, nothing in the jury instructions, the verdict forms or the trial court's instructions indicated to the jury which incident was the basis for either count 4 or 5 and the accompanying enhancement allegations, or limited the evidence it was to consider for these counts. Nonetheless, the parties agree, and the record indicates, that counts 4 and 5 could only be based on either Davis's shooting of Jacob or Davis's pistol-whipping of Jacob, incidents which occurred separately and some minutes apart.
The only guidance to the jury was provided by the prosecutor in closing argument. He argued that Davis's shooting of Jacob proved he committed both assault with a firearm (count 4) and assault with a semiautomatic firearm (count 5). He did not mention the pistol-whipping. Regarding the GBI allegations, the prosecutor said only, "You commit . . . great bodily injury in commission of certain crimes, you're guilty of that," without referring to any incident or injury.
The prosecutor referred to the assault charges and then told the jury, "I don't think there's any question that [Davis] willfully shot through the door . . . . [¶] When the defendant acted, he was aware of the facts and would lead a reasonable person to realize that its acts, by its nature would directly and probably result in the application of force to somebody."
Davis contends the record is clear that the prosecutor relied on Jacob's leg injury from the shooting as the basis for all the GBI allegations involving Jacob. He points out that the prosecutor referred to the shooting only as the basis for the assault charges in closing argument. "Based on this record," Davis asserts, "it must be concluded that when the jury found true the [GBI] allegation, they based this finding on the evidence regarding [Jacob's] leg injury he suffered as a result of the shooting through the door." However, Davis does not extend this argument to the count 5 conviction and firearm enhancement. He asserts only that should we conclude they are also based on the shooting, we should stay the sentences imposed for them, as well as the sentence imposed for the GBI.
The People contend, directly or by implication, that the record indicates in four ways that the pistol-whipping was the basis for the jury's count 5 determinations. First, they rely on the trial court's comment at sentencing and a prosecutor's remark to the grand jury that issued the indictment, both of which indicate the understanding that count 5 addressed the pistol-whipping incident. These comments do not reflect any statements made to the jury and, without more, shed no light on what the jury considered in finding Davis guilty of the count 5 assault charge and finding the accompanying enhancements true.
The court stated at the sentencing hearing regarding count 5, "I don't think the offense itself is [section] 654, because I think that—because that particular count related to him being pistol whipped, which is separate and apart from the gunshot."
The prosecutor told the grand jury, "Now, Jacob Bogner you have—you have the firearm. The one . . . party shoots at him, which I think was Count 5, or maybe Count 4. He shoots at him, and then the second part comes when he comes back in the room when he beats him with the . . . firearm, but not as a pistol, but as an object."
Second, the People argue the jury likely based its count 4 determinations on the shooting incident and its count 5 determinations on the pistol-whipping incident because the jury was instructed to consider each crime separately. This instruction does not require the jury to rely on different facts for each charge, however, and the same facts could support the count 4 violation of section 245, subdivision a)(2), assault with a firearm, and the count 5 violation of section 245, subdivision (b), assault with a semiautomatic firearm.
Section 245, subdivision (a)(2) states: "Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment."
Section 245, subdivision (b) states: "Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years."
Third, the People also suggest that the facts indicate the jury based its count 5 determinations on the pistol-whipping because Davis first shot Jacob and then pistol-whipped him. But the fact that the jury was presented with evidence of two incidents does not indicate how it viewed the two similar charges, and the only direction it was given on the subject was the prosecutor's closing argument referring to the shooting incident as the basis for both.
Fourth, the People note that count 4 alleges Davis used a firearm while count 5 alleges he used a semiautomatic firearm. They suggest this difference led the jury to understand that count 4 applied to the shooting because Jacob could not see the firearm Davis used through the bedroom door, while count 5 applied to the pistol-whipping because Jacob could see the firearm Davis used during that incident. This argument is meritless. Jacob testified that he saw Davis point the Glock gun at him just before shooting and that Davis later hit him with the same gun. Ballistics evidence establishes the bullet casing found in the hallway outside of Jacob's bedroom was fired from the Glock's magazine. There is no question that both incidents involved the same firearm, and the difference in how that firearm was described in the indictment, in light of this evidence, would be meaningless to any reasonable juror.
2. The Jury Must Have Based Its Count 5 Determinations on the Shooting.
The People also argue that even if the record does not disclose the basis for the jury's count 5 determinations, we cannot assume the jury considered the same incident for both counts, nor should we conclude it based its count 5 determinations on the shooting, because we must presume all facts in favor of the judgment under a substantial evidence standard of review. (See People v. Snow (2003) 30 Cal.4th 43, 66 ["On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt"].)
The People are correct about the presumption, but incorrect about where it leads. In People v. Guiton (1993) 4 Cal.4th 1116 (Guiton), our Supreme Court was faced with a jury verdict against a defendant that could have been based on either of two different factual theories—that defendant transported or sold cocaine—but only one of them was supported by substantial evidence. (Id. at pp. 1119-1120.) The court rejected the argument that it should reverse because the record did not disclose which factual theory was the basis for the jury's verdict. It held in relevant part that, because a court must assume that the jury acted reasonably, "if there are two possible grounds for the jury's verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground." (Id. at p. 1127.) In determining the basis for a jury verdict, "the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (Id. at p. 1130.) "If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." (Id. at p. 1129.)
Following Guiton's analysis, we have reviewed the factual support for the two alternative factual theories that the jury could consider for its count 5 determinations—that Davis assaulted Jacob either by shooting him or by pistol-whipping him. We conclude the jury must have based its determinations on the shooting incident because no reasonable jury could have found Jacob suffered a GBI from the pistol-whipping.
Section 12022.7 defines a GBI as "a significant or substantial physical injury." (§ 12022.7 subd. (f).) The court instructed the jury using this definition, and also correctly instructed, "It is an injury that is greater than minor or moderate harm." (See CALCRIM No. 3160.) " ' "Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding." ' " (People v. Escobar (1992) 3 Cal.4th 740, 750.)
Here, there is no evidence that the pistol-whipping caused a GBI. Jacob testified that Davis hit him four or five times on the top of the head with his Glock gun, that it felt like being hit with a two-by-four and "hurt like hell," that he thought he was going to lose consciousness but did not, and that he lay on the floor bleeding for a time thereafter. He told the police in his recorded 911 conversation, "They pistol whipped the shit out of my head," and "I got a welt on it," and said he was not bleeding. An officer who arrived on the scene and spoke to Jacob about his injuries testified that Jacob appeared to be in a lot of pain, but Jacob did not mention the pistol-whipping. Jacob also was kept in the hospital for five days, but there is no evidence about what treatment he received.
Jacob's testimony indicates Davis pistol-whipped him after Jacob had already been shot and was particularly vulnerable, and that the pistol-whipping "hurt like hell." There is no evidence that Jacob sustained a discernible injury from the pistol-whipping other than a minor welt on top of his head. While there is no doubt that the shooting resulted in bleeding, it does not appear there was any bleeding from the pistol-whipping. When Jacob mentioned the pistol-whipping during the 911 call minutes after the incident, he said he was not bleeding. Any welt or other head injury was so insignificant to Jacob that he did not mention it to the police officer who interviewed him on the scene about his injuries. There is no evidence that Jacob continued to feel pain from the pistol-whipping in the hours and days after the incident. Nor is there any evidence that he received any medical treatment for injuries associated with the pistol-whipping (although a GBI enhancement does not require such proof (see People v. Wade (2012) 204 Cal.App.4th 1142, 1149)).
Jacob testified his leg bled after the shooting, making unclear what he meant when he said he lay on the floor of his room "bleeding" after the pistol-whipping.
The People cite two GBI cases in support of the jury's finding, but neither involve an injury so slight. (See People v. Saez (2015) 237 Cal.App.4th 1177, 1181-1182, 1189 [victim's injury from an assault on the street included considerable bleeding from the victim's face, lacerations on her neck and tongue, and fractures to the bones near her eye socket and cheek]; People v. Wolcott (1983) 34 Cal.3d 92, 107 [bullet struck victim in the calf and shattered, tearing muscle tissue in the leg, cutting the victim's arms and legs and leaving six or seven bullet fragments in his arms].) The same is true for People v. Escobar, supra, 3 Cal.4th at pages 745 and 750 (kidnapped, raped and assaulted with a deadly weapon, the victim sustained "extensive bruises and abrasions over [her] legs, knees and elbows, injury to her neck and soreness in her vaginal area of such severity that it significantly impaired her ability to walk") and the cases cited therein (id. at p. 752 [citing GBI cases involving injuries of a "similar" degree and severity, all of which involved more significant injuries than Jacob's].) We have also conducted independent research and have not found another case with such meager evidence of a discernible injury. Based on Guiton, we conclude the jury acted reasonably and based the GBI on the shooting incident instead.
Further, because the count 5 GBI finding logically had to be based on the same incident as the count 5 assault conviction, the jury must have based all of its count 5 determinations on the shooting. Therefore, we turn to whether under section 654 we must stay Davis's count 5 sentence of six years and four months for the assault conviction and attendant enhancements because that count and his count 6 mayhem conviction are based on the same act and injury.
B. The Count 5 Sentences Should Be Stayed Under Section 654.
In count 6, Davis was convicted of mayhem, specifically, "unlawfully and maliciously depriv[ing Jacob] of a member of the body." This injury was based on the same shooting incident and injuries as the jury's count 5 determinations. The court imposed the principal, longer sentence of eight years plus 20 years for an accompanying firearm enhancement for count 6.
Given these facts and circumstances, we must stay defendant's entire count 5 sentence of six years and four months under section 654. Section 654 states in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) In People v. Pitts (1990) 223 Cal.App.3d 1547, 1560, where the defendant was convicted of both mayhem and assault based on a single attack against one victim, the court held that the failure to stay the sentence on the assault count violated section 654. (See also People v. Hill (1994) 23 Cal.App.4th 1566, 1569 [this court noting that the trial court stayed sentences for an assault conviction and its GBI enhancement in the face of a mayhem conviction for the same incident].) "Where . . . the trial court erroneously fails to stay the terms subject to section 654, the appellate court must stay the sentence on the lesser offenses . . . ." (People v. Thompson (1989) 209 Cal.App.3d 1075, 1080.)
IV.
There Were No Errors Regarding the Sentencing Calculations for Counts 5 and 12.
Davis next argues that the trial court miscalculated, or the abstract of judgment contained clerical errors regarding, his sentences for count 5 and count 12, assault with a semiautomatic firearm upon Celli. Davis claims that rather than impose sentences of three years and four months in each case for just the personal use of a firearm enhancements attached to these counts, the court meant to impose this amount as the total sentence for each of these counts and the personal use of a firearm enhancements attached to them. We disagree.
A. Count 5
The jury found Davis guilty of count 5, assaulting Jacob with a semiautomatic firearm, and found true the attached firearm and GBI enhancements. The court sentenced Davis to six years and four months for these crimes.
Under section 245, subdivision (b), any person who commits assault upon another with a semiautomatic firearm shall be punished by imprisonment for three, six or nine years. The court stated it was imposing a subordinate sentence of "one-third the midterm of two years" for count 5. That is, it imposed one-third of the six year midterm, for a total of two years. It imposed an additional one year under the GBI enhancement under section 12022.7, which was one-third of the three-year sentence.
Under section 12022.5, subdivision (a), a consecutive term of three, four or ten years is added for a personal use of a firearm enhancement. The court stated that in addition to the two years added for Davis's section 245 conviction, it was adding "one-third of the enhancement under [section] 12022.5 for a total of three years and four months."
B. Count 12
The jury found Davis guilty of the count 12 charge of assaulting Celli with a semiautomatic firearm in violation of section 245, subdivision (b) and found the attached personal use of a firearm and GBI allegation to be true. At sentencing, the court stated, "In count 12, I'm going to sentence the defendant for assault with a semi-automatic firearm, in violation of [section] 245[, subdivision] (b), to the mid term of—the mid term of six years. So I'm going to impose two years which is one-third the mid term . . . ." Regarding the personal use of a firearm enhancement, the court stated it would be imposing "one-third of the enhancement [that] is therefore three years and four months for a total imposed sentence of five years and four months." The court again only stated it was imposing one-third of the enhancement, and did not state whether or not this was for the midterm or the upper term.
Davis argues the court intended by its confusing reference to three years and four months regarding each of count 5 and 12 to impose this amount of time as the total sentence for the firearm assault conviction and the personal use of a firearm enhancement. That is, he claims the court meant in each case to impose two years pursuant to section 245 and one-third of the four-year midterm pursuant to section 12022.5, which equals one year and four months, for a total sentence of three years and four months.
The People argue that the court did not indicate it would be imposing the four-year midterm for the personal use of a firearm enhancement under section 12022.5 and that nothing in the record suggests it intended to do so. They further argue that given three years and four months equals one-third of the ten-year upper term under section 12022.5, the court meant to impose the upper term. The People also argue Davis has forfeited this claim by failing to object at sentencing.
We conclude the court did not err and, therefore, we do not need to address the People's forfeiture claim. Regarding counts 5 and 12, the court stated it was imposing the midterm for defendant's section 245 conviction and did not state it was imposing the midterm for the personal use of a firearm enhancement under section 12022.5. It is unreasonable to conclude that the court erred twice. Rather, the court's consistent action indicates that it intended to impose one-third of the upper term for the section 12022.5 enhancements. Further, the court's decision to impose mostly consecutive sentences indicates it considered Davis's crimes to be of a very serious nature. Therefore, Davis's claim that the court erred in its sentencing calculations, or that the abstract of judgment contained a clerical error, regarding counts 5 and 12 is unpersuasive.
V.
We Remand for the Court to Exercise Its Discretion on the Firearm Enhancements.
In supplemental briefing, Davis seeks remand so that the trial court may exercise its discretion to decide whether to strike or dismiss the firearm enhancements that were attached to counts 2, 5, 6 and 12 under recently enacted Senate Bill No. 620. Senate Bill No. 620 amended sections 12022.5, subdivision (a) and 12022.53, subdivision (h), effective January 1, 2018, to give trial courts the discretion to strike or dismiss firearm enhancements imposed under these sections. (Stats. 2017, ch. 682, §§ 1, 2.) The People agree the amended sections 12022.5, subdivision (a) and 12022.53, subdivision (h) apply to defendant, but argue remand is unnecessary because the trial record demonstrates the court would not have dismissed the firearm enhancements. We agree that we should remand the case to let the trial court to exercise its discretion.
Before Senate Bill No. 620, section 12022.5, subdivision (c) and section 12022.53, subdivision (h) prohibited courts from striking section 12022.5 and section 12022.53 enhancements. (Stats. 2017, ch. 682, §§ 1, 2.) Senate Bill No. 620 amended section 12022.5, subdivision (c) and section 12022.53, subdivision (h) to read in relevant part: "The court may, in the interest of justice pursuant to Section 1385 at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (Stats. 2017, ch. 682, §§ 1, 2.) These amendments are relevant here because the trial court imposed the upper term sentence of three years and four months for the personal firearm enhancements attached to the count 5 and count 12 assault convictions under section 12022.5, subdivision (a); imposed an enhancement sentence of 25 years to life under section 12022.53, subdivision (d) for defendant's count 2 robbery conviction; and imposed an enhancement sentence of 20 years under section 12022.53, subdivision (c) for his count 6 mayhem conviction. As the parties assert, Senate Bill No. 620's amendments apply to Davis because this matter is not yet final. (In re Estrada (1965) 63 Cal.2d 740, 747-748.)
The People argue the record indicates the trial court will not exercise its discretion to strike or dismiss these enhancements because it imposed upper terms whenever it could, because of the aggravating factors it relied on, and because of the absence of mitigating factors. We will not presume what the court will do. We remand these matters to give it the opportunity to exercise its discretion.
DISPOSITION
We affirm the judgment, except that we order the judgment to be modified to stay under section 654 Davis's sentence of six years and four months for his count 5 assault conviction and the attendant enhancements, and we remand to the trial court to exercise its discretion regarding the firearm enhancements attached to counts 2, 5, 6 and 12. The trial court should issue an amended abstract of judgment and provide a copy to correctional authorities with any and all modifications to the judgment and sentencing.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.