Opinion
G052871
01-16-2018
THE PEOPLE, Plaintiff and Respondent, v. IRVIN TELLEZ, Defendant and Appellant.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CF2980) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Irvin Tellez of first degree murder (Pen. Code, § 187, subd. (a); count 1), attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), assault with a semiautomatic firearm (§ 245, subd. (b); count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4.)
All further statutory references are to the Penal Code unless stated otherwise.
The jury found true allegations defendant personally discharged a firearm causing death with respect to count 1 (§ 12022.53, subd. (d)), personally discharged a firearm causing great bodily injury with respect to count 2 (§ 12022.53, subd. (d)), personally used a firearm in the commission of count 3 (§ 12022.5, subd. (a)), personally inflicted great bodily injury during the commission of counts 2 and 3 (§ 12022.57, subd. (a)), and defendant committed all the charged crimes for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). Defendant admitted having served three prior prison terms (§ 677.5, subd. (b)).
The court imposed an indeterminate term of 25 years to life for first degree murder, two consecutive terms of 25 years to life for personal discharge of a firearm during the commission of murder and attempted murder, and a consecutive determinate term of 26 years and eight months for all other counts and enhancements.
In his opening brief, defendant argues: (1) the prosecution failed to prove Delhi is a criminal street gang within the meaning of section 186.22, subdivision (f); (2) the court misdirected the jury on the definition of a criminal street gang; (3) defendant suffered reversible error because the jury learned he had been in prison; and, (4) the court erroneously imposed the section 186.22, subdivision (b)(1)(C)'s 10-year enhancement instead of the 15-year minimum parole period prescribed in subdivision (b)(5) of section 186.22.
In a supplemental brief, defendant asserts he is entitled to the benefit of recent amendments to sections 12022.5 and 12022.53, which became effective on January 1, 2018. (Stats. 2017, ch. 682, §§ 1, 2.) Defendant relies on People v. Francis (1969) 71 Cal.2d 66 and In re Estrada (1965) 63 Cal.2d 740. The Attorney General concedes the statute applies retroactively, and we accept the concession without further analysis.
The parties differ on the appropriate remedy. Defendant asserts the case must be remanded to allow the court to exercise its new discretion to strike firearms enhancements for his benefit. The Attorney General argues no reasonable court would exercise its sentencing discretion in defendant's favor based on defendant's criminal history, and the brutality of the current crimes. We agree with the Attorney General and affirm the judgment.
FACTS
1. The Crimes
On August 11, 2013, defendant, a longtime member of the Delhi criminal street gang, walked by Vernon Redd's carport and shot him in the leg. Redd was a member of Hardtimes, a rival gang of Delhi. One .nine-millimeter shell casing was recovered from the scene.
A couple of weeks later, Jaime Rocha, an associate of the Delhi criminal street gang for over 20 years, was driving a rented car when defendant asked him for a ride from Santa Ana to Garden Grove.
Rocha pled guilty to manslaughter and received a 16-year sentence in exchange for his testimony. He admitted having prior felony convictions for transportation of methamphetamine, burglary, and aggravated assault.
During the drive to Garden Grove, defendant told Rocha he had been disrespected by some folks, and he had a gun. Rocha thought "something might happen." However, after they drove through a certain neighborhood in Garden Grove without seeing anyone, they decided to go to a house party in Santa Ana.
At the party, defendant met his friend, Nancy Hammour. Hammour purchased methamphetamine, and Rocha, defendant, and Hammour decided to go to Hammour's house to socialize and use drugs. They smoked some methamphetamine at Hammour's home, which prompted a fight with Hammour's landlord, David Camarena. When Camarena ordered everyone out of his house, defendant, Rocha and Hammour left in Rocha's rented car.
As they drove away, Rocha saw Elizabeth Gray standing on the side of the street. Rocha pulled over and asked Gray where she lived. Gray pointed to some houses nearby. Rocha then asked Gray where she had lived before. Gray responded "'I used to live in Alley Boys . . . " 'but I don't play politics or nothing like that.'"
Defendant, who had been seated in the right front passenger seat, reached out with a gun in his hand and shot Gray in the face. Although gravely injured, Gray fell to the ground and survived. Police recovered another nine-millimeter shell casing at the scene.
Shocked, Rocha immediately fled the area. As Rocha drove, Hammour, who was seated in the backseat, screamed out, "Why did you do that?" Without warning, defendant turned around and shot Hammour in the face. Hammour collapsed and started to make gurgling noises, which prompted defendant to reach back, push Hammour to the floor, and shoot her a second time.
Defendant told Rocha to drive to Mexico because he wanted to burn the car and Hammour's body. However, they later decided to drop Hammour's body near a bridge in Newport Beach. After that, Rocha drove defendant to the City of Orange. As defendant got out of Rocha's car, he grabbed the gun and told Rocha he would get rid of it. Defendant also took Hammour's heroin. Defendant and Rocha shook hands, and defendant said, "D love" to Rocha, which is short for "Delhi love."
After defendant left, Rocha took $1,200 out of Hammour's purse. He tried to clean the rental car and found two shell casings, but he decided to throw them away. Later that night, Rocha drove to Mexico.
The next morning, a woman walking her dog discovered Hammour's body lying face down in some ice plant under a bridge in Newport Beach. Hammour had died from gunshot wounds to the head. Hammour's boyfriend had reported her missing earlier that morning, and police soon knew she had last been with defendant and Rocha.
Rocha returned to the United States with his rental car in the early morning hours of September 4. Rocha drove as far north as Oceanside before the car broke down. He called his rental car agency to arrange for a tow truck. Later that day, police arrested Rocha for possessing methamphetamine and for violating probation. Two days after his arrest, Rocha decided to contact the Newport Beach Police Department and tell them about the shootings. He also took detectives to the place where he and defendant had dumped Hammour's body.
A forensic firearms expert compared the nine-millimeter shell casings found at the scene of the Redd and Gray shootings. The expert testified both shell casings had been fired from a Glock or similar gun, but he could not definitively state both shell casings had been ejected from the same gun.
Forensic examiners found blood on the back seat, seatbelt, handrail, and roof of Rocha's rental car. There was a bullet hole and bullet in the right rear seatback cushion, and cleaning chemicals in the trunk.
Hammour's DNA was found in Rocha's rental car, but forensic analysts were "unable to either include or exclude . . . Tellez or . . . Rocha as contributors to [DNA] found" in the car.
In addition, defendant had received the following text message eight days before he shot Redd with a nine-millimeter gun: "Hey foo, .9 millimeter luger, 15 rounds, 5 bills sii or no?"
2. Gang Expert Testimony
Santa Ana Police Detective Julian Rodriguez testified as the prosecution's gang expert. At the time of trial, Rodriguez was a member of the California Gang Investigators Association and the California Narcotics Offices Association, and he was the president of the Orange County Gang Investigators Association.
Rodriguez explained that in addition to spending his childhood in a Los Angeles neighborhood occupied by gangs, he received instruction on "the basics of gang laws, documentation of gang members" when he went to work for the Los Angeles Police Department. Rodriguez worked for six years with the Los Angeles Police Department, a good portion of which was on assignment to that department's gang unit.
When Rodriguez joined the Santa Ana Police Department, he spent three years patrolling an area of Santa Ana claimed by the Delhi gang. Rodriguez then served four "tour[s]" in the Santa Ana Police Department gang unit, and he spent the next six years in "gang homicide."
Over the course of his 20-plus year career, Rodriguez had testified as a gang expert in excess of 40 times, and authored a few dozen gang specific search warrant affidavits. He had investigated over 150 gang-related crimes and spoken to hundreds of gang members.
According to Rodriguez, Delhi is one of approximately 90 documented criminal street gangs in Santa Ana. He classified Delhi as a "turf-oriented" Hispanic criminal street gang. Turf is a particular area of a city the gang's calls its own, and Rodriguez described the boundaries of Delhi's claimed turf to the jury.
Rodriguez also said Delhi is a multi-generational Hispanic street gang with ties to Orange County dating back to the 1930's or 1940's. In the 1950's and 1960's, a car club called Los Aces was absorbed by Delhi, and Delhi became a recognized criminal street gang during the 1970's and 1980's.
Delhi members wear dark blue, or black clothing, and they use the letter "D," Detroit Tigers gear, the phrase "Los Aces," and pictures of the ace of spades as identifying symbols. Delhi gang members also use the number 13 to signify allegiance to Southern California gangs. These signs and symbols are found in gang graffiti, tattoos, and artwork.
Rodriguez explained how the Delhi gang vets new members through violent confrontation (jumping-in), and he explained the varying levels of gang participation. Law enforcement uses terms like "members, active participants and associates" to describe these levels of affiliation. Original gangsters are older gang members who live in the neighborhood and have "the tats, got the history, but . . . outgrow[] hanging out and criming with the homies."
In 2013, Delhi had over 250 documented members, and about 50 active participants. Gangs use violence to control their claimed territory, and to make sure everyone in the community knows one Delhi gang member will be backed up by "the dozen . . . other Delhi members." One of Delhi's main rivals is Alley Boys, and the two gangs are "prone to [use] violence" against each other.
When asked what Delhi's primary activities were in 2013, Rodriguez replied, "Gang members in possession of firearms, and gang members engaging in either transportation or sales of narcotics." He explained the concept known as the "gang gun theory." Rodriguez said it is common for Hispanic street gangs to get guns "by whatever means" and collect them in a cache of readily accessible firearms for use by gang members.
The prosecution presented certified court documents to establish Delhi engaged in a pattern of criminal gang activity. From these records, Rodriguez testified Marcos Arturo Sanchez was convicted of being a felon in possession of a firearm, possession of a control substance with a firearm, and active participation in a criminal street gang in October 2012. In the same month, Gabriel Castillo was convicted of murder committed for the benefit of a criminal street gang. Rodriguez had been the lead investigator on that case. In September 2011, Robert Vincent Rodriguez was convicted of carrying a loaded firearm in public. Based on Rodriguez's personal knowledge and review of the records in each case, he opined all three mean were active participants in Delhi at the time they committed these crimes.
In Rodriguez's opinion, defendant was an active participant in Delhi when he committed the charged murder, attempted murder, and assault with a deadly weapon. Rodriguez knew a police officer had served defendant with a "STEP" notice in September 2013 after defendant admitted being a Delhi member.
In addition, defendant has several tattoos that incorporate signs and symbols consistent with Delhi membership. Defendant has the letter "D" and the number "13" tattooed on the back of his calves. He has the word "Delhi" tattooed on his stomach. On defendant's shoulder, there is a tattoo of the ace of spades in the form of a skull. He also has a five pointed star with "D13" and "SA" tattooed on his back, and a small ace of spades on his left wrist.
When given hypothetical facts mirroring the prosecution's evidence, Rodriguez opined defendant committed the instant crimes to promote, further, or assist the criminal conduct of Delhi, and for the benefit of, at the direction of, or in association with Delhi. Rodriguez opined an active participant in a gang would have shot a rival gang member as a way to gain respect, and as payback for acts of disrespect. Shooting someone who lives in a rival gang's territory promotes the shooter's reputation because "violen[ce] towards a . . . perceived rival" promotes respect. Murder also eliminates potential witnesses, and violence intimidates people in the gang's claimed territory.
DISCUSSION
1. Evidence of Delhi's Primary Activities
a. Background
The information alleged defendant was an active participant in a criminal street gang (§ 186.22, subd. (a)), he committed murder to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)), and he committed murder, attempted murder, and assault with a deadly weapon for the benefit of, at the direction of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)(C)).
To establish criminal street gang status, section 186.22, subdivision (f) requires the prosecution to prove beyond a reasonable doubt "(1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran).)
Subdivision (e) of section 186.22 lists 33 serious or violent crimes that can be used to prove the primary activities and pattern of criminal gang activity elements of subdivision (f). "[E]vidence of either past or present criminal acts listed in subdivision (e) of section 186.22 is admissible to establish the statutorily required primary activities of the alleged criminal street gang." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) Moreover, evidence introduced to establish a pattern of criminal gang activity may also be probative of the gang's primary activities. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1227-1228; see also People v. Galvan (1998) 68 Cal.App.4th 1135, 1142.)
b. Argument
Defendant first argues Rodriguez's testimony one of the primary activities of Delhi was "'[g]ang members in possession of firearms'" is insufficient as a matter of law to prove one of Delhi's primary activities is the commission of offenses listed in section 186.22, subdivision (e). We disagree.
While "gang members in possession of firearms" is not listed in subdivision (e) of section 186.22, the statute does list multiple gun possession offenses, including felon in possession of a firearm (§ 186.22, subd. (e)(31)) and possession of a loaded firearm in public (§ 186.22, subd. (e)(33)). The prosecution introduced evidence of two gun possession offenses to establish Delhi's "pattern of criminal gang activity." (§ 186.22, subd. (f).) When coupled with evidence of these prior convictions, Rodriguez's expert testimony about Delhi's primary activities is sufficient to prove members of a group known as Delhi "consistently and repeatedly" committed crimes listed in section 186.22, subdivision (e). (Sengpadychith, supra, 26 Cal.4th at p. 324, italics omitted.)
Citing In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), In re Nathaniel C. (1991) 228 Cal.App.3d 990 (Nathaniel C.), and In re Leland D. (1990) 223 Cal.App.3d 251 (Leland D.), defendant also asserts Rodriguez's expert testimony was based on "vague, conclusory hearsay" of questionable reliability. (Boldface omitted.) Again, we disagree. Rodriguez's expert testimony differs in its nature and quality from the expert testimony in defendant's cited cases.
In Alexander L., the prosecutor asked the gang expert about the pertinent gang's primary activities. The gang expert responded, "'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic[s] violations.'" (Alexander L., supra, 149 Cal.App.4th at pp. 611-612.)
In Nathaniel C., supra, 228 Cal.App.3d at page 1004, the gang expert's testimony did not specifically relate to the particular gang at issue or its activities, and the expert admitted the gang was not actually within his jurisdiction.
Similarly, In Leland D., the prosecutor asked the gang expert if the gang at issue had committed any serious felony after September 1988. (Leland D., supra, 223 Cal.App.3d at p. 259.) The expert replied: "I don't know. I'm sure there has been, but I don't know." (Ibid.)
In contrast, here Rodriguez testified at length about his background, training, and experience, and his experience included several years of patrolling Delhi's claimed turf. During his 20-year career, Rodriguez had spoken to hundreds of gang members, including Delhi gang members, and investigated over 150 gang-related crimes. Rodriguez's testimony stemmed from his personal experience with Delhi gang members and his involvement in the investigation of crimes committed by the gang. This testimony established the reliability of his information. (Duran, supra, 97 Cal.App.4th at p. 1465 [expert testimony based on "personal investigation of crimes committed by gang members" may be sufficient to prove primary activity element].)
In addition, the prosecution presented evidence of two gun-related predicate offenses in the form of certified court documents which are not hearsay. (Duran, supra, 97 Cal.App.4th at pp. 1460-1461.) When coupled with Rodriguez's expert testimony, evidence two active participants in Delhi had been convicted of felon in possession of a firearm and carrying a loaded firearm provides substantial evidence from which the jury could have concluded beyond a reasonable doubt one of the primary activities of Delhi was the commission of gun possession crimes listed in section 186.22, subdivision (e). (People v. Nguyen (2015) 61 Cal.4th 1015, 1068 [gang expert's testimony that certain crimes enumerated in § 186.22, subd. (e) were among a particular gang's primary activities constituted sufficient evidence]; see People v. Prunty (2015) 62 Cal.4th 59, 82 [gang expert's testimony was "likely sufficient" to establish primary activities element].)
c. Instructional Error
CALCRIM No. 1400 (Active Participation in Criminal Street Gang) defined the terms criminal street gang, primary activities, and pattern of criminal gang activity for the jury. Based on Rodriguez's testimony, the court listed "possession of firearms by gang members and narcotic sales" as Delhi's primary activities. Later, in the instruction, the court told the jury a pattern of criminal gang activity could be based on a combination of any two of the following offenses: possession of a firearm by a felon, carrying a loaded unregistered firearm in public, and first degree murder.
Defendant argues the court misinstructed the jury because "possession of firearms by gang members" is not a crime listed in section 186.22, subdivision (e). The Attorney General asserts defendant forfeited the issue by failing to object to the instruction at trial. We agree. However, because the error complained of may have "affected the substantial rights of the defendant" we will consider it on the merits. (§ 1259.) We also address the merits because he challenges the instruction on grounds of federal constitutional error. (People v. Johnson (2016) 62 Cal.4th 600, 638-639.)
In reviewing a claim of jury misinstruction, we presume jurors are intelligent and capable of understanding, correlating, and applying the court's instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) We must consider the instructions as a whole, not as isolated parts. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) The issue is whether all the instructions viewed in context made it reasonably likely the jury applied them in an impermissible manner. (People v. Houston (2012) 54 Cal.4th 1186, 1229; People v. Jablonski (2006) 37 Cal.4th 774, 831.) We conclude no such likelihood has been shown here.
Defendant merely assumes the jury misunderstood CALCRIM No. 1400. But the instruction specifically told the jury to determine if "possession of firearms by gang members, and narcotic sales" were one of Delhi's primary activities, and then listed possession of a firearm by a felon and carrying a loaded firearm in public as crimes establishing Delhi's pattern of criminal gang activity. The reference to possession of firearms by gang members directly related to the two predicate offenses, and defendant does not challenge the sufficiency of the evidence to prove them.
Defendant also argues the court erred by failing to instruct on the elements of felon in possession of a firearm and carrying a loaded firearm in public. However, the two firearms-related predicate offenses were proved by certified records of convictions. The elements of the predicate crimes were not at issue, and instructions on the elements of those crimes would have been superflous.
Finally, defendant argues the prosecution failed to present sufficient evidence one of Delhi's primary activities is narcotics sales, but he does not mention murder was also used as a primary activity. Because we find sufficient evidence to support the primary activities element based on two convictions for illegal firearms possession, we express no opinion on the sufficiency of the evidence to prove narcotics sales and murder are also primary activities of Delhi.
2. Inadvertent Disclosure
a. Background
Defendant's prior felony convictions and prison terms were the subject of pretrial in limine motions. In an effort to exclude this information, before trial defendant admitted prior felony convictions for vehicle theft, illegal possession of narcotics, and second degree burglary.
During cross-examination, defense counsel asked Rocha how he met defendant. Rocha explained, "I met him, like I said, about two, three weeks - two weeks prior at Yvonne Gomez's house. He was there. He happened to be there. Other guys from Delhi were there. That's when I met him. He just got out of prison I think really about a month before. We knew he was running around already. Everybody knew he was out. That's when I first met him."
There was no objection and defense counsel continued with his examination. Defense counsel questioned Rocha about the house party attended, Rocha's addiction to methamphetamine, and a few details of the crimes. After several minutes of questioning, the court took a break.
During the break, court and counsel had a conference in chambers. When court reconvened outside the presence of the jury, the judge said he and the attorneys had discussed what to do about Rocha's reference to defendant having been in prison. The court admonished Rocha, saying, "Mr. Rocha, I don't want to hear that again." Rocha apologized.
Defense counsel said, "Yeah, I talked to my client about it and I think tactically the best thing to do is ignore it . . . ." The court responded, "I agree," and the prosecutor "concur[red]." The court continued, "All right. We can get into that more, Mr. Tellez, but it just would ring the bell again and again and again. I think some of them probably never even picked up on it." The court reconvened with the jury, and there was no further mention of defendant's time in prison.
b. Argument and Analysis
Defendant argues Rocha's passing reference to his recent release from prison violated Evidence Code section 1101, subdivision (a) and the due process clause of the Fourteenth Amendment.
However, defense counsel forfeited the asserted state evidentiary error by failing to object below. (Evid. Code, § 353, subd. (a); People v. Holt (1997) 15 Cal.4th 619, 666-667.) Plus, the failure to object on state grounds forfeits a claim that the admission of this evidence violates due process. (People v. Gordon (1990) 50 Cal.3d 1223, 1240, fn. 2, disapproved on other grounds in People v. Edwards (1991) 54 Cal.3d 787, 835; see People v. Partida (2005) 37 Cal.4th 428, 435-436.)
Nevertheless, even were we to assume defense counsel's failure to object to Rocha's prison reference was a tactical decision which fell below an objectively reasonable standard of care, we would find no prejudice.
To prevail on an ineffective assistance of counsel claim, defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.)
In this case, the jury heard evidence defendant shot Redd, Gray, and Hammour from close range. He shot Gray because she had once lived in a rival gang's territory, and Hammour because she questioned him. In light of the facts of the underlying crimes, there is no reasonable probability defendant would have obtained a more favorable outcome had defense counsel objected to Rocha's fleeting reference to defendant's release from prison. 3. Section 186.22, Subdivision (b) Sentencing
On count 2, the court imposed the upper term of nine years for attempted murder, plus a 10-year enhancement for committing an attempted murder for the benefit of a gang (§ 186.22, subd. (b)(1)(C)), and an indeterminate term of 25 years to life for defendant's personal and intentional discharge of a firearm causing death (§ 12022.53, subdivision (d)).
Defendant argues the imposition of 25 years to life for personally and intentionally discharging a firearm causing death makes his attempted murder "a felony punishable by imprisonment in the state prison for life." Consequently, defendant argues we must strike the 10-year enhancement, and impose the 15-year minimum parole period of section 186.22, subdivision (b)(5) instead. Not so.
Defendant was convicted of attempted murder. The sentencing range for attempted murder absent a finding of premeditation and deliberation is five, seven, or nine years. (§ 664, subd. (a).) Section 186.22, subdivision (b)(5) "applies only where the felony by its own terms provides for a life sentence." (People v. Montes (2003) 31 Cal.4th 350, 352; People v. Johnson (2003) 109 Cal.App.4th 1230, 1239.) Because attempted murder without premeditation and deliberation does not itself carry the possibility of a life sentence, the court correctly imposed the 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C). 4. Statutory Amendments to Sections 12022 .5 and 12022 .53
Section 664 subdivision (a) states, in pertinent part, "if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years." (Italics added.) --------
When defendant was charged, convicted, and sentenced, subdivision (h) of section 12022.53 provided: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."
After the court imposed sentence, but while defendant's case was pending on appeal, the Legislature enacted Senate Bill No. 620. (Stats. 2017, ch. 682, §§ 1, 2.) As of January 1, 2018, subdivision (h) of section 12022.53 provides: "The 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."
The Attorney General concedes the foregoing amendment applies retroactively to defendant's case. However, the Attorney General does not agree with defendant's assertion we must remand the case to allow the court to exercise its discretion. As noted, the Attorney General does not believe any reasonable court would exercise its discretion in defendant's favor, and we agree.
Defendant's criminal record began in 2006 when defendant was convicted of vehicle theft and possession of burglary tools. The following year defendant was arrested and convicted of attempted vehicle theft, burglary, possession of a controlled substance, and possession of drug paraphernalia.
In 2008, defendant was convicted of vehicle theft, a violation of parole, and possession of methamphetamine. He was sentenced to three years in prison for the vehicle theft and two years for possession of methamphetamine. During his incarceration, defendant has assaulted more than one correctional officer.
In this case, defendant shot Hammour and Gray in the face from close range for no apparent reason, and without any showing of remorse. The court imposed the upper term for attempted murder, "because the shooting was so unprovoked." Defendant's probation report notes several aggravating factors related to the crimes and defendant, but not a single mitigating factor connected to the crime, or defendant. Defendant also admitted serving three prior prison terms in connection with his multiple prior felony convictions, and his performance on previous grants of parole and probation have been "unsatisfactory."
In light of defendant's previous criminal record, the nature of his current crimes, and the court's previous decision to impose the upper term for attempted murder, we conclude remand would be futile. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no remand where court imposed upper term and said the maximum sentence was appropriate].)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.