People v. Mayberry CA4/1 ( 2022 )

Filed 8/4/22 P. v. Mayberry CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079884
Plaintiff and Respondent,
v. (Super. Ct. No. F18906509)
DAMONE KIKI MAYBERRY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County,
Jonathan B. Conklin, Judge. Reversed in part and remanded with
instructions.
Matthew A. Siroka, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans, Timothy L. O’Hair and Clara M. Levers, Deputy Attorneys
General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Damone Kiki Mayberry, among other charges, of first
degree murder with a robbery-murder special circumstance and found true he
personally and intentionally discharged a firearm in committing the murder.
(Pen. Code,1 §§ 187, subd. (a), 190.2, subd. (a)(17), 12022.53, subd. (d).) In a
bifurcated proceeding, the trial court found Mayberry suffered a prior strike
conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and a prior prison
term (former § 667.5, subd. (b)). Mayberry was sentenced to a term of life
without the possibility of parole on the murder, consecutive to 25 years to life
for the firearm enhancement.
On appeal, Mayberry challenges the trial court’s modification of the
CALCRIM No. 376 instruction, which tells the jury it can consider a
defendant’s possession of recently stolen property as evidence the defendant
committed a crime, to refer to the nontheft offenses of murder and assault
with a firearm. We agree the court erred in modifying the instruction but
conclude the error was not prejudicial. Mayberry also brings an Eighth
Amendment challenge to the felony-murder special circumstances statute
(§ 190.2, subd. (a)(17)). This challenge fails because it is foreclosed by
controlling California Supreme Court decisions. Finally, Mayberry raises
three sentencing issues. We conclude two of them—based on recent
legislative amendments of sections 654 and 667.5, subdivision (b)—have
merit. In light of the two meritorious sentencing issues, we vacate his
sentence, strike the one-year enhancement imposed under former section
667.5, subdivision (b), and remand for resentencing in accordance with
1 Further unspecified statutory references are to the Penal Code.
2
another new statute (§ 1172.75) and this opinion. In all other respects, we
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
The Evidence
A. Bridget M.: The Robbery and Murder of Lorenzo “Red” M.
In the early morning of September 18, 2018,2 Lorenzo M. and his
girlfriend Bridget M. were asleep in Lorenzo’s studio apartment. The
apartment was located in a Fresno apartment complex known as “the Flats.”
Lorenzo, nicknamed “Red,” sold marijuana and crystal methamphetamine
“for really cheap.” At around 5:00 a.m., someone knocked on the door.
Lorenzo went to answer. Bridget heard a female voice, and then Lorenzo
said, “come inside.” Lorenzo turned around and walked toward the kitchen.
A blond woman wearing a hoodie and jeans entered the apartment. Bridget
saw the woman’s face; she had “jagged” and “[c]hipped” teeth. Although
Bridget did not immediately recognize the woman, she later identified her as
Gypsy Hall.
Hall started to follow Lorenzo into the kitchen but then stopped. A tall,
thin African American man wearing a red bandanna over his face entered the
apartment through the open door. Bridget was still lying in bed but she
could tell the man was tall because he was almost the height of the door. He
was holding a “little gun” in his right hand. He walked into the kitchen
behind Lorenzo and shot Lorenzo in the back of the head.
Bridget screamed as Lorenzo fell to the ground. The man and Hall
went to the bed and started hitting Bridget. They yelled at Bridget to find
2 Unless otherwise noted, all dates refer to 2018.
3
the drugs and the money. Bridget was hit in the head, causing her to bleed.
Hall grabbed Bridget by her hair, pulled her out of bed, and forced her to sit
naked on a weight bench in the dining area near the kitchen.
The man pointed the gun at Bridget as he and Hall walked around the
apartment. The two dug through kitchen cupboards and took marijuana.
They gathered clothing, baseball hats—Lorenzo collected expensive clothing
and baseball hats—and other items, including a camouflage bag that
contained a jar of marijuana, and electronic devices, including cell phones.
The man threatened Bridget, shot her in the leg, and immediately left the
apartment.
Hall stayed behind for several minutes gathering property. She told
Bridget “they’re going to be in the front” if Bridget wanted to come with
them, which Bridget found “odd.” Hall took Bridget’s purse that contained
cell phones belonging to Bridget. Hall left the apartment, her arms spilling
over with stolen items. As she left through the front door, she dropped a
digital scale.
Bridget was in pain and bleeding profusely from her leg. She looked at
Lorenzo. He seemed to be alive; she could hear him “grunting.” Bridget ran
out of the apartment and knocked on neighbors’ doors looking for help. Rick
B. let her inside his apartment. At 5:41 a.m., Rick called 911 and reported
that a woman he did not know had been shot and she was bleeding.
B. Arrest of Mayberry and Hall on September 18
Officers from the Fresno Police Department responded to Rick’s
apartment. An officer found Bridget inside on the couch. There was dried
blood on her face from a wound on the left side of her head. She also had a
gunshot wound on the inside of her right thigh. She said her boyfriend had
also been shot, gave the officer her boyfriend’s name and apartment number
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but did not provide his complete street address. Bridget was taken to the
hospital by emergency responders.
After a search, police officers found Lorenzo’s apartment. The screen
door was unlocked, and the interior door was open. They found Lorenzo
laying on his back in the kitchen. He was making a gurgling noise, and there
was a lot of blood. Lorenzo was taken to the hospital but died of a gunshot
wound to the back of his head.
The interior of Lorenzo’s apartment was in disarray. The kitchen
cabinet was open. Glasses and cups were knocked over. Digital scales, a
white powdery substance, and a green leafy substance were found, all
indicative of potential drug sales. Outside the apartment, police officers
found a pillow in a nearby planter box, a small digital scale right outside the
front door of the Lorenzo’s apartment, and a broken mug and empty mason
jar several hundred feet from the apartment, close to the area of the parking
lot and driveway leading in and out of the complex.
Detectives talked to residents of the apartment complex to develop
leads on potential suspects. The lead detective explained, “In an apartment
complex like this, . . . everybody knows everybody.” One of the residents they
spoke to was Tiffany W. Tiffany knew Hall because she was a longtime
friend of Hall’s mother and Hall used to live in the apartment complex but
had been evicted. Early in the morning on September 18, Hall had knocked
on Tiffany’s door and asked to use her bathroom. Hall was wearing a hoodie
cinched tightly around her face, and she seemed nervous and fidgety. Hall
used Tiffany’s bathroom, got a drink of water, and left.
While canvassing the apartment complex, detectives also received
information from an anonymous female who provided Facebook names and
profiles of the possible perpetrators. One of the Facebook profiles belonged to
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Hall. The other Facebook profile featured a photograph of an African
American man. The associated Facebook page contained information linking
it to Mayberry. A photograph of Mayberry from the Department of Motor
Vehicles matched the photograph of the African American man in the
Facebook profile. There was also a picture of Hall on Mayberry’s Facebook
page.
Bridget told detectives one of her stolen cell phones had a “find my
device” application linked to her Google account. Law enforcement obtained
“ping” information from Google revealing the location of Bridget’s stolen
phone.3 One ping placed the phone at a gas station in Kingsburg at 7:43 a.m.
on September 18. The surveillance video obtained from the gas station for
that timeframe showed Hall, Mayberry, and another man in a gray Hyundai
Sonata. Mayberry could be seen moving a large blue bin in the trunk of the
car.
A detective was assigned to surveil Hall’s residence located on North
Dearing Avenue (Hall’s house). The residence was owned and occupied by
Hall’s parents. At around 1:30 p.m. on September 18, the detective saw a
gray Hyundai Sonata going south on North Dearing Avenue. It came to a
stop at Hall’s house and then sped away.
A subsequent ping revealed that Bridget’s stolen phone was in Visalia.
An address was found in Visalia for an apartment associated with Mayberry’s
father. At around 7:00 p.m. on September 18, law enforcement responded to
that address and spotted Mayberry sitting outside near the street. As officers
approached and identified themselves, Mayberry turned and ran to the
3 A detective explained the term “pings” is “jargon for . . . tracking a cell
phone.” It refers to receiving the latitude and longitude coordinates revealing
the location of a device at a particular date and time.
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complex and into his father’s apartment. The officers gave chase and
arrested Mayberry. Hall, who was at the apartment with Mayberry, was also
arrested. Officers searched the apartment and found Bridget’s purse and a
blue bin, which contained baseball caps, clothing, cell phones, a camouflage
bag holding two jars of marijuana, and other items, including credit cards
and identification cards belonging to Mayberry, Hall, and Bridget.
C. The Gray Hyundai Sonata
The police obtained surveillance footage from the home security system
of a residence near the Flats. It showed a Hyundai Sonata arriving at the
apartment complex at approximately 3:57 a.m. on September 18. The car
then backed into a parking stall and sped away with its headlights off at
around 5:37 a.m.
On September 19, the detective who saw the gray Hyundai Sonata
outside Hall’s house on September 18 responded to a tow yard to view a
Hyundai Sonata that had been reported stolen and recovered. He confirmed
it was the same vehicle he had seen the day of the murder. A fingerprint that
matched Mayberry’s known prints was found on the exterior door frame of a
rear passenger door. A fingerprint that matched Hall’s known prints was
found on the hood of the car.
D. Gypsy Hall
Hall testified at trial under an agreement with the District Attorney’s
Office. She had pled guilty to manslaughter and two counts of robbery and
was facing up to 13 years in prison.
Hall and Mayberry had been dating for six or seven months, at the time
of the robbery and murder. Mayberry was around 6’3” or 6’4” tall, and he was
“skinny.”
7
Hall used to live at the same apartment complex as Lorenzo, which she
called the Flats. She used to clean Lorenzo’s apartment and sell drugs for
him. She also bought drugs from Lorenzo. In September 2018, Hall was
using methamphetamines every day. She and Mayberry would use
methamphetamines together. Neither of them were working at the time.
Hall earned money to buy drugs by prostituting herself. Mayberry was
jealous of Lorenzo and at times would accuse Hall of having a sexual
relationship with Lorenzo. Twice, Mayberry went with Hall to Lorenzo’s
apartment to buy drugs. One time, Mayberry and Lorenzo had a dispute
about a drug purchase. Mayberry and Hall had bought a “ten sack” but were
“short a dollar” and afterwards, Lorenzo texted Mayberry, “make sure you
have the full money next time.”
On the evening of September 17, Hall, Mayberry, Chucky, and J.S.
(Hall’s 15-year-old niece) were hanging out in Hall’s bedroom at Hall’s house
getting high on methamphetamines. Hall and J.S. also took Xanax. There
was no discussion about committing a robbery against Lorenzo, although
Mayberry talked about going to Visalia. J.S. and Chucky were going to give
Mayberry and Hall a ride to Visalia. Because Mayberry and Hall did not
have anybody to buy drugs from in Visalia, they decided to go buy drugs from
Lorenzo.
At some point, Hall, Mayberry, Chucky, and J.S. went to the Flats.
Chucky was driving. It was dark. Mayberry gave Hall $20 to buy
methamphetamines from Lorenzo. She went to Lorenzo’s apartment,
knocked on the metal security door, and said she was there “to buy 20.”
Lorenzo invited her to come in; she entered and gave Lorenzo the money.
Lorenzo went to the kitchen and had his back turned, and then Bridget, “the
female[,] started screaming.”
8
Hall turned around and saw two masked people behind her. She was
pretty sure one of them was Mayberry, because the person was very tall and
African American. The other person was substantially shorter and was
physically similar to Chucky. Mayberry had entered the apartment and was
pointing a gun at the back of Lorenzo’s head. Chucky never entered the
apartment.
Hall grabbed Bridget by the hair and told her to stop screaming. When
Hall turned back around, she saw Lorenzo’s “legs laying in the kitchen.” She
did not hear a gunshot or see Lorenzo fall to the ground. Mayberry told Hall
to grab the purse and the camouflage bag with “weed in it.” Hall did not
remember going through cupboards. She saw Lorenzo’s body from the waist
down and “went into shock.” She ran out of the apartment to the car carrying
the purse and camouflage bag and jumped into the back seat of the car.
Mayberry came back to the car, and they drove off with J.S. and
Chucky. The next thing Hall remembered was waking up in Visalia. Chucky
and J.S. dropped off Hall and Mayberry at Mayberry’s father’s apartment.
Mayberry had the stolen property in “a blue bucket,” which he brought into
his father’s apartment. Later in the day, while Mayberry and Hall were
outside, the police arrived. Mayberry took off running towards the
apartment, and the police chased him, but Hall did not see what happened
next. They were both arrested.
Hall testified she did not know Mayberry to carry a gun. But
Mayberry’s cousin, Javonni T., did carry a gun. Javonni was about the same
height as Mayberry.
Hall gave different versions of events to the police at different times.
When she first talked to a detective she did not tell him it was Mayberry that
fired the shot inside the apartment. She explained at trial that she was still
9
under the influence at that time and did not really remember. She admitted
she did not tell the detective that Mayberry was the shooter until around a
month after she was arrested.
E. Misty G.
Misty G. is Hall’s sister and lived with Hall on North Dearing Avenue
with her 15-year old daughter, J.S. At the time of trial, J.S. was dating “[a]
couple boys,” one of whom was “Chucky.” Hall was dating Mayberry. Misty
had seen Mayberry at their house several times. He had stayed there
overnight and kept his belongings there in an overnight bag.
The night before the murder, Misty hung out at the house with
Mayberry and Hall for about an hour. All three of them used
methamphetamines, and Misty also took Xanax. Mayberry and Hall were
“saying something about getting money.” They used the phrase “coming up,”
which means “to get something you don’t got by means that are not
necessarily . . . legal.” Mayberry also used the term “lick,” which can mean a
job, or a robbery. Mayberry asked Misty to go with them. Misty said no; she
had just gotten out of prison for grand theft auto and “was trying to not pull
any licks right away.”
Misty saw J.S. the night of September 17. J.S. was in and out of the
house; Chucky was out front. Chucky drove a vehicle that Misty could tell
had been stolen. Chucky drove Misty and J.S. to the store. When they got
back to the house, Misty argued with J.S. “about her running around
anymore that night in the car.” Misty fell asleep on the couch. When Misty
woke up the morning of September 18, she talked to Tiffany, who lived at the
Flats, and found out there had been a shooting there. She learned the victim
was Lorenzo. Misty had bought drugs from Lorenzo in the past. Later that
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day, Misty saw J.S. at the home of one of Misty’s sisters. J.S. was high. She
was mumbling, “saying crazy things,” and crying.
On September 18, after Mayberry was arrested, Mayberry’s mother
called Misty and asked her to find a bag that Mayberry had left at Hall’s
house. Misty found the bag at the foot of Hall’s bed. She looked in one of the
bag’s side compartments and found an empty gun magazine. She threw the
gun magazine away in the kitchen garbage can and put the bag on the front
porch so Mayberry’s family could come get it. When the police executed the
search warrant at Hall’s house, they found a magazine for a small caliber gun
in the kitchen garbage can, and a bag on the front porch that contained a
prescription bottle bearing Mayberry’s name.
F. J.S.
On September 19, a detective interviewed J.S. A recording of the
interview was played for the jury. J.S. had been raised by her grandmother
and had lived at the house on North Dearing Avenue all her life. On the
night of September 17, Hall, Mayberry, and Chucky were hanging out at the
house in Hall’s room. J.S. described Chucky as a stocky “white guy” between
5’6” and 5’8” tall.
That night, J.S. was going in and out of Hall’s room. She overheard
Mayberry and Hall talking about “coming up on somebody.” J.S. explained
that “come up” meant “steal.” At around midnight, J.S. took Xanax given to
her by Hall and Mayberry.
In the early morning, she, Mayberry, Hall, and Chucky left the house
in a gray car. Mayberry drove. J.S. did not see Mayberry with a gun that
night, but she had seen him with a gun before. Mayberry parked the car
near the gate of an apartment complex. Hall, Mayberry, and Chucky got out,
leaving J.S. behind in the car. About five minutes later, J.S. saw Hall
11
running to the car with “stuff throwing in her hand.” She also saw Mayberry
and Chucky “running out.” Mayberry opened the trunk of the car and “was
helping [Hall] throw the [stuff] in.”
Mayberry got in the car and started driving. Mayberry said “he shot
the guy in his head, and then he shot the girl.” J.S. told the detective,
“[Mayberry] was like, ‘I shot that nigga in his head, and he just fell down like
that.’ And he said he had a pile of blood. . . . ‘I was telling that bitch, bitch, I
know where you live, bitch.’ And then he’s like, just to show you that, like,
I’m down or whatever, that he shot her, too.” Mayberry then said he was
getting “outta town” and that “his dad lived in Visalia.” Mayberry drove to
Visalia, where he and Hall got out of the car. J.S. told the detective the “guy
that they shot” was “Red.” J.S. had met “Red” before; he was a friend of
Hall’s.
At trial, J.S. testified she did not remember going anywhere with
Mayberry on September 18. She took “a lot of Xanax,” drank alcohol and
used marijuana the night of September 17. She remembered “chilling” with
Mayberry and Hall for about an hour, but she did not remember what
happened next. She denied knowing what “coming up” meant. She did not
remember a shooting. She did not remember what she said in her tape-
recorded interview with the detective on September 19.
G. Mayberry
In a recorded jail call, Mayberry asked his mother to delete two Gmail
accounts. The investigating detectives were able to identify a cell phone
associated with these Gmail accounts. They obtained data showing the cell
phone’s approximate location on September 18. From 3:59 a.m. until
5:38 a.m., the cell phone was in the area of Lorenzo’s apartment complex. At
7:44 a.m., the cell phone was in the area of the Kingsburg gas station. From
12
8:31 a.m. until 6:12 p.m., the cell phone was in Visalia in the area of
Mayberry’s father’s apartment.
In recorded jail calls to his mother, Mayberry also appeared to blame
either Hall or Bridget for his arrest. He said he was going to have “that bitch
gone” and he “already got it planned.”
J.S. told a detective that Mayberry was wearing a white tee-shirt the
morning of September 18, and she saw blood spatter on his tee-shirt after he
ran back to the car from Lorenzo’s apartment. She saw Mayberry take the
shirt off as they drove away. When Mayberry was arrested, he was wearing a
red sweater. Hall identified the sweater as one of the items they stole from
Lorenzo’s apartment.
When Mayberry was arrested, he had a cut on his left thumb. A towel
with apparent blood stains was discovered inside the blue bin in Mayberry’s
father’s apartment. Genetic testing of one of these stains revealed its genetic
profile to be the same as Mayberry’s.
At trial, the defense rested without calling witnesses or presenting
evidence.
II.
Verdict and Sentencing
The jury convicted Mayberry of first degree murder with a robbery-
murder special circumstance and found true he personally and intentionally
discharged a firearm in committing the murder. (§§ 187, subd. (a), 190.2,
subd. (a)(17), 12022.53, subd. (d); count 1.) The jury convicted Mayberry of
first degree residential robbery (§ 211; count 2) and assault with a firearm
with the allegation he personally inflicted great bodily injury (§§ 245, subd.
(a)(2), 12022.7, subd. (a); count 3).
13
Mayberry waived his right to a jury trial on allegations he suffered a
2012 robbery conviction that qualified as a prior strike (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)) and a prior prison term (former § 667.5, subd. (b)). In
a bifurcated bench trial, the court found the priors allegations true beyond a
reasonable doubt.
At the sentencing hearing, the trial court declined to strike the prior
conviction and declined to strike the section 12022.53 enhancement. On
count 1, the court imposed a sentence of life without the possibility of parole,
enhanced by an indeterminate term of 25 years to life under section
12022.53, subdivision (d). The court imposed a one-year consecutive term for
the prior prison term pursuant to former section 667.5, subdivision (b). On
count 2, the court imposed a determinate term of 12 years (consisting of the
low term of six years, doubled for the strike prior under section 667,
subdivision (e)(1)) but stayed this term pursuant to former section 654. On
count 3, the court imposed a determinate term of 11 years (consisting of the
low term of four years, doubled to eight for the strike prior under section 667,
subdivision (e)(1), plus three years for the great bodily injury enhancement
under section 12022.7, subdivision (a)). The total aggregate sentence
consisted of a 12-year determinate term (a total of 11 years on count 3 plus
the one year prior prison term enhancement), followed by an indeterminate
term of 25 years to life, consecutive to an indeterminate term of life without
the possibility of parole.
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DISCUSSION
I.
Any Error in Modifying CALCRIM No. 376 to Refer to Nontheft Offenses
Was Harmless
Mayberry contends the trial court erred in instructing the jury with the
following modified version of CALCRIM No. 376:
“If you conclude that the defendant knew he possessed property
and you conclude that the property had in fact been recently
stolen, you may not convict the defendant of Murder, Robbery
and assault with a firearm based on those facts alone. However,
if you also find that supporting evidence tends to prove his guilt,
then you may conclude that the evidence is sufficient to prove he
committed Murder, Robbery and assault with a firearm.
“The supporting evidence need only be slight and need not be
enough by itself to prove guilt. You may consider how, where, and
when the defendant possessed the property, along with any other
relevant circumstances tending to prove his guilt of Murder,
Robbery and assault with a firearm.
“Remember that you may not convict the defendant of any crime
unless you are convinced that each fact essential to the
conclusion that the defendant is guilty of that crime has been
proved beyond a reasonable doubt.”
First, Mayberry contends the instruction misled jurors to convict him
on an alternate, legally erroneous theory of guilt, one that did not involve a
determination that the elements of the charged offenses were true beyond a
reasonable doubt. Second, he contends the trial court erred by modifying the
instruction to say that murder and assault with a firearm were crimes to
which the instruction’s permissible inference applied. “We review de novo
whether a jury instruction correctly states the law. [Citation.] Our task is to
determine whether the trial court ‘ “fully and fairly instructed on the
applicable law.” ’ ” (People v. Lopez (2011) 198 Cal.App.4th 698, 708 (Lopez).)
Doing so, we reject Mayberry’s first challenge to CALCRIM No. 376 but agree
15
the court erred in modifying the instruction to include the two nontheft
offenses. However, we conclude the error was not prejudicial.4
A. CALCRIM No. 376 Did Not Create a Legally Erroneous Theory of Guilt
Mayberry’s first claim of instructional error challenges the language of
the CALCRIM No. 376 pattern instruction. He contends a reasonable juror
would interpret CALCRIM No. 376 to mean “if you find beyond a reasonable
doubt that the defendant possessed recently stolen property, and beyond a
reasonable doubt that there was some other ‘supporting evidence’ that he was
involved in the crime, then you may conclude that he is guilty.” Mayberry
argues such a juror would be misled to convict him based only on these two
findings, without determining whether the prosecution proved every element
of the charged offenses beyond a reasonable doubt, in violation of his rights
under the Fourteenth Amendment. We disagree.
“ ‘ “[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an instruction
or from a particular instruction.” ’ ” (People v. Musselwhite (1998) 17 Cal.4th
1216, 1248 (Musselwhite).) “ ‘If a jury instruction is ambiguous, we inquire
whether there is a reasonable likelihood that the jury misunderstood and
misapplied the instruction.’ ” (People v. Young (2005) 34 Cal.4th 1149, 1202.)
“ ‘ “In determining whether error has been committed in giving or not giving
jury instructions, we must consider the instructions as a whole . . . [and]
assume that the jurors are intelligent persons and capable of understanding
and correlating all jury instructions which are given.” ’ ” (People v. Ramos
4 Although Mayberry did not object to this instruction, there is no
forfeiture of an instructional issue on appeal where, as here, the appellant
asserts the instructional error violated his substantial constitutional rights.
(People v. Smithey (1999) 20 Cal.4th 936, 976–977, fn. 7.)
16
(2008) 163 Cal.App.4th 1082, 1088 (Ramos).) “ ‘ “We credit jurors with
intelligence and common sense [citation] and do not assume that these
virtues will abandon them when presented with a court’s instructions.” ’ ”
(Lopez, supra, 198 Cal.App.4th at p. 710.)
CALCRIM No. 376, like its predecessor CALJIC 2.15,5 “is based on a
‘long-standing rule of law [that] allows a jury to infer guilt of a theft-related
crime from the fact a defendant is in possession of recently stolen property
when coupled with slight corroboration by other inculpatory circumstances
[that] tend to show guilt.’ ” (Lopez, supra, 198 Cal.App.4th at p. 709, quoting
People v. Barker (2001) 91 Cal.App.4th 1166, 1173 (Barker); see People v.
McFarland (1962) 58 Cal.2d 748, 754 [“[p]ossession of recently stolen
property is so incriminating that to warrant conviction there need only be, in
addition to possession, slight corroboration in the form of statements or
conduct of the defendant tending to show his guilt”].) “For centuries courts
have instructed juries that an inference of guilty knowledge may be drawn
from the fact of unexplained possession of stolen goods.” (Barnes v. United
States (1973) 412 U.S. 837, 843.) This inference is permissive, not
5 CALJIC 2.15 states: “If you find that a defendant was in [conscious]
possession of recently [stolen] [extorted] property, the fact of that possession
is not by itself sufficient to permit an inference that the defendant is guilty of
the crime of [ ]. Before guilt may be inferred, there must be corroborating
evidence tending to prove defendant’s guilt. However, this corroborating
evidence need only be slight, and need not by itself be sufficient to warrant
an inference of guilt. [¶] As corroboration, you may consider [the attributes
of possession--time, place and manner,] [that the defendant had an
opportunity to commit the crime charged,] [the defendant’s conduct,] [[his]
[her] false or contradictory statements, if any,] [and] [or] [other statements
[he] [she] may have made with reference to the property] [a false account of
how [he] [she] acquired possession of the stolen property] [any other evidence
which tends to connect the defendant with the crime charged].”
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mandatory. (People v. Synder (2003) 112 Cal.App.4th 1200, 1226.) In
Barnes, the United States Supreme Court held this inference comports with
due process if “the evidence necessary to invoke the inference is sufficient for
a rational juror to find the inferred fact beyond a reasonable doubt.” (Barnes,
at p. 843.)
The California Supreme Court has repeatedly upheld CALJIC No. 2.15
against challenges that it alters or lowers the prosecution’s burden of proof in
violation of the Fourteenth Amendment. (See, e.g., People v. Grimes (2016) 1
Cal.5th 698, 730 (Grimes); People v. Moore (2011) 51 Cal.4th 1104, 1111–
1112, 1130 (Moore); People v. Gamache (2010) 48 Cal.4th 347, 375–376
(Gamache); People v. Letner and Tobin (2010) 50 Cal.4th 99, 189; People v.
Parson (2008) 44 Cal.4th 332, 355–356; People v. Holt (1997) 15 Cal.4th 619,
676–677 (Holt); People v. Johnson (1993) 6 Cal.4th 1, 36–38 (Johnson),
overruled on another ground by People v. Rogers (2006) 39 Cal.4th 826, 878–
879.) Courts of Appeal, relying on these decisions, have rejected similar
constitutional challenges to CALCRIM No. 376, reasoning CALCRIM No. 376
is substantially similar to CALJIC No. 2.15. (People v. O’Dell (2007) 153
Cal.App.4th 1569, 1574–1575; accord Lopez, supra, 198 Cal.App.4th at p. 709;
see People v. Solorzano (2007) 153 Cal.App.4th 1026, 1036 [“The permissive
inference that CALCRIM No. 376 authorizes . . . is linguistically synonymous
with, and constitutionally indistinguishable from, the permissive inference
that CALJIC No. 2.15 authorizes[.]”].)
Mayberry contends his challenge to CALCRIM No. 376 is not foreclosed
by California Supreme Court authority rejecting challenges to CALJIC No.
2.15 for two reasons. First, he claims the challenge he raises is one the
California Supreme Court has not considered. He is incorrect. In Grimes,
the California Supreme Court considered an argument by the defendant that
18
CALJIC No. 2.15 “gave the jury an option of convicting him of robbery based
on his possession of stolen goods plus some corroborating evidence, without
finding all the elements of robbery.” (Grimes, supra, 1 Cal.5th at p. 730.)
Our high court rejected this argument and held “CALJIC No. 2.15
appropriately permits—but does not require—jurors to infer guilt of burglary,
robbery, or theft from the possession of stolen property plus some
corroborating evidence, and that it does not violate due process or reduce the
burden of proof.” (Ibid.) The instructional challenge Mayberry raises here is
indistinguishable from the argument raised and rejected in Grimes.
Second, Mayberry argues California Supreme Court decisions rejecting
challenges to CALJIC No. 2.15 (such as Grimes) are not controlling, because
contrary to the conclusions of other Courts of Appeal, CALCRIM No. 376 is
not substantially similar to CALJIC No. 2.15. He argues: “CALCRIM No.
376 was the only jury instruction that used the words ‘conclude’ or
‘conclusion.’ ” According to Mayberry, the repeated appearance of these
words in the instruction would cause a reasonable juror to misinterpret the
phrase, “ ‘each fact essential to the conclusion that the defendant is guilty’ ”
in the last paragraph of the instruction, to refer back to the two “ ‘facts’ ” in
the first paragraph of the instruction relating to (1) possession of stolen
property, and (2) supporting evidence tending to prove his guilt. He argues
CALCRIM No. 376 thus created an alternate theory of guilt based on “two
‘essential facts’ instead of upon proof of each statutory element of the
offenses.”
Mayberry’s argument fails because it relies on an unreasonable
interpretation of CALCRIM No. 376 and disregards other relevant
instructions. “ ‘ “We credit jurors with intelligence and common sense
[citation] and do not assume that these virtues will abandon them when
19
presented with a court’s instructions.” ’ ” (Lopez, supra, 198 Cal.App.4th at
p. 710.) “ ‘ “In determining whether error has been committed in giving or
not giving jury instructions, we must consider the instructions as a whole . . .
[and] assume that the jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are given.” ’ ”
(Ramos, supra, 163 Cal.App.4th at p. 1088.) In addition to CALCRIM No.
376, the jury was also instructed that “[w]ords and phrases not specifically
defined in these instructions are to be applied using their ordinary, everyday
meanings.” “[C]onclude” and “conclusion,” the words Mayberry claims jurors
would have found misleading, are ordinary words that are synonymous with
find and finding. They are not uniquely legal terminology, and the
instruction gives them no special definition. It is not reasonably likely that
an intelligent juror encountering the words “conclude” and “conclusion” would
give them undue emphasis or construe them in the hypertechnical manner
Mayberry suggests.
Nor did the instruction’s use of these words make the last paragraph of
the instruction amenable to the interpretation jurors could convict Mayberry
based only on the findings in the first paragraph of the instruction, without
considering other relevant instructions. We assume jurors are “ ‘ “capable of
understanding and correlating all jury instructions which are given.” ’ ”
(Ramos, supra, 163 Cal.App.4th at p. 1088, italics added.) Here, in addition
to CALCRIM No. 376, the jury was also instructed on the elements of the
charged offenses pursuant to CALCRIM No. 521 (First Degree Murder),
CALCRIM No. 540A (Felony Murder), CALCRIM No. 1600 (Robbery), and
CALCRIM No. 875 (Assault With a Deadly Weapon—Firearm). The jury was
“expressly told that in order to prove those crimes, each of the elements must
be proved.” (Holt, supra, 15 Cal.4th at p. 677.) The jury was also instructed
20
pursuant to CALCRIM No. 200 to “[p]ay careful attention to all of these
instructions and consider them together.” We see no reasonable likelihood
that a jury so instructed, upon being reminded by CALCRIM No. 376 that
they “may not convict the defendant of any crime unless you are convinced
that each fact essential to the conclusion that the defendant is guilty of that
crime has been proved beyond a reasonable doubt,” would believe they could
ignore the instructions on the elements of the charged offenses and convict
Mayberry without considering whether the prosecution had proved those
elements beyond a reasonable doubt.
For these reasons, we reject Mayberry’s first challenge to CALCRIM
No. 376.
B. The Trial Court Erred in Including Nontheft Offenses in CALCRIM No.
376, But the Error Was Not Prejudicial
For his second claim of instructional error, Mayberry contends the
court erred by modifying CALCRIM No. 376 to include the nontheft offenses
of murder and assault with a firearm. We agree this was error but conclude
the error was not prejudicial.
It is well established that CALCRIM No. 376 should be limited to theft
or theft-related offenses and should not be modified to refer to nontheft
charges like murder or assault. (See Bench Notes to CALCRIM No. 376
(2022 ed.) p. 149 [“Use of this instruction should be limited to theft and theft-
related crimes.”], citing People v. Prieto (2003) 30 Cal.4th 226, 248–249
(Prieto) [error to instruct jurors the permissive inferences in CALJIC No. 2.15
apply to rape and murder]; Moore, supra, 51 Cal.4th at p. 1130 [error to
modify CALJIC No. 2.15 to refer to murder charge]; Gamache, supra, 48
Cal.4th at pp. 374–375 [same]; People v. Coffman and Marlow (2004) 34
Cal.4th 1, 16, 101 [error to instruct jurors the permissive inferences in
CALJIC No. 2.15 applied to the “ ‘crimes alleged,’ ” which included murder
21
and forcible sodomy].) Discussing CALJIC No. 2.15, the California Supreme
Court has stated it has “approved the use of [the instruction] with respect to
theft offenses because, ‘[w]ith the inference from the knowledge and conscious
possession of [stolen] property, and slight additional evidence as
corroboration, the intent to steal, identity, and the determination a defendant
committed the acts necessary to constitute robbery and burglary have been
found to naturally and logically flow[.]’ ” (Prieto, supra, 30 Cal.4th at p. 249,
quoting Barker, supra, 91 Cal.App.4th at p. 1176, fn. 6.) But “[t]he same is
not true for nontheft offenses like rape or murder.” (Prieto, at p. 1176.)
“ ‘[P]roof a defendant was in conscious possession of recently stolen property
simply does not lead naturally and logically to the conclusion the defendant
committed’ a rape or murder.” (Ibid.) Likewise, proof a defendant was in
conscious possession of recently stolen property does not lead naturally and
logically to the conclusion the defendant committed an assault with a
firearm.
The People, relying on this court’s decision in People v. Harden (2003)
110 Cal.App.4th 848 (Harden), contend the trial court did not commit
instructional error. The defendant in Harden was charged with robbery,
burglary, and murder with a special circumstance allegation the murder was
committed in the commission of a robbery or a burglary. (Id. at p. 851.) The
trial court modified CALJIC No. 2.15 to tell the jury the permissive inference
arising from the defendant’s conscious possession of recently stolen property
applied to the “crimes of robbery and burglary . . . and . . . the allegations . . .
that the murder of [the victim] was committed by the defendant during the
commission of the crimes of robbery and burglary.” (Id. at p. 855, italics
omitted.) We found the modification was not erroneous. (Id. at pp. 856–859.)
We observed that “[a]lthough the published cases to date have approved
22
CALJIC No. 2.15 for use regarding theft-related offenses, there appears to be
no valid reason to preclude its use regarding theft-related allegations.” (Id.
at p. 857.) We reasoned that “[b]ecause CALJIC No. 2.15 may properly be
given as a cautionary instruction regarding the offenses of robbery and
burglary [citation], it logically also may properly be given as a cautionary
instruction regarding allegations that include as elements the offenses of
robbery or burglary.” (Ibid.)
Harden is distinguishable from this case. Here, unlike Harden, the
trial court did not modify CALCRIM No. 376 to refer to the special
circumstance allegation the murder was committed during the commission of
the crime of robbery. (See Harden, supra, 110 Cal.App.4th at p. 855.)
Rather, it modified the instruction to refer to the crime of murder itself.
Moreover, neither the holding nor reasoning of Harden supports instructing
the jury that the permissive inference relating to conscious possession of
stolen property applies to assault with a firearm. Accordingly, we conclude
the trial court erred by modifying CALCRIM No. 376 as it did.
Turning to the question of prejudice, the California Supreme Court has
repeatedly held that instructional error of this sort does not violate the
federal Constitution but rather is error under state law only, and that it must
be evaluated for prejudice under the standard articulated in People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson), not Chapman v. California (1967) 386
U.S. 18 (Chapman). (People v. Parker (2022) 13 Cal.5th 1, 69–70; Moore,
supra, 51 Cal.4th at p. 1130; Gamache, supra, 48 Cal.4th at p. 376; Prieto,
supra, 30 Cal.4th at p. 249.) Mayberry nevertheless maintains we must
review the error under the Chapman standard. He observes the jury was
23
instructed on accomplice testimony pursuant to CALCRIM No. 335,6 and
contends the combination of this instruction and the erroneously modified
CALCRIM No. 376 “lowered the burden of proof and allowed the jury to
convict [him] without finding each element beyond a reasonable doubt,”
resulting in federal constitutional error.
We disagree that the combination of these instructions resulted in a
violation of the federal Constitution. First, the erroneous modification of
CALCRIM No. 376 did not lower the burden of proof or infringe on
Mayberry’s federal constitutional rights. As our high court has explained,
“[b]ecause permissive inferences, as opposed to mandatory inferences, do not
require that the jury reach a certain finding based on a predicate fact, the
prosecution’s burden of persuasion is improperly diminished only if the
permissive inference is irrational.” (Moore, supra, 51 Cal.4th at p. 1131.) In
Moore, our high court held the permissive inference arising from possession
of recently stolen goods is not irrational even when applied to nontheft
offenses. (Id. at p. 1132.) Thus, the trial court’s erroneous addition of
murder and assault with a firearm to CALCRIM No. 376 did not lower the
burden of proof on these offenses, and for the reasons we have already
6 As given in this case, CALCRIM No. 335 stated in relevant part: “You
may not convict the defendant of [murder or robbery or assault with a
firearm] based on the statement or testimony of an accomplice alone. You
may use the statement or testimony of an accomplice to convict the defendant
only if: [¶] 1. The accomplice’s statement or testimony is supported
by other evidence that you believe; [¶] 2. That supporting evidence is
independent of the accomplice’s statement or testimony; [¶] AND [¶] 3. That
supporting evidence tends to connect the defendant to the commission of the
crime. [¶] Supporting evidence, however, may be slight. It does not need to
be enough, by itself, to prove that the defendant is guilty of the charged
crime, and it does not need to support every fact about which the witness
testified.”
24
explained, it also did not allow the jury to convict him of these offenses
without finding each element had been proved beyond a reasonable doubt.
Second, Mayberry does not argue or cite any authority for the
proposition that CALCRIM No. 335 lowers or alters the prosecutor’s burden
of proof. Nor does he cite any authority for the proposition that giving an
erroneously modified CALCRIM No. 376 instruction in combination with
CALCRIM No. 335 creates federal constitutional error. We disagree that
giving these two instructions together violates the Constitution when neither
of them does so independently. As we have discussed, when considering
claims of instructional error, we evaluate “ ‘ “the entire charge of the court” ’ ”
(Musselwhite, supra, 17 Cal.4th at p. 1248) and “ ‘ “assume that the jurors are
intelligent persons and capable of understanding and correlating all jury
instructions which are given” ’ ” (Ramos, supra, 163 Cal.App.4th at p. 1088).
The jury was instructed on the elements of the charged offenses pursuant to
CALCRIM No. 521 (First Degree Murder), CALCRIM No. 540A (Felony
Murder), CALCRIM No. 1600 (Robbery), and CALCRIM No. 875 (Assault
With a Deadly Weapon—Firearm), and it was instructed pursuant to
CALCRIM No. 200 to “[p]ay careful attention to all of these instructions and
consider them together.” We see no possibility a jury receiving all of these
instructions would focus on CALCRIM No. 335 and CALCRIM No. 376 to the
exclusion of all other relevant instructions, and convict Mayberry without
finding the prosecution proved each element of the offenses of conviction
beyond a reasonable doubt.
Therefore, the trial court’s instructional error “is one of state law only,
subject to the miscarriage of justice test under [Watson, supra, 46 Cal.2d at
p. 836]—whether defendant has established there exists a reasonable
probability he would have obtained a more favorable result if the error had
25
not occurred.” (Moore, supra, 51 Cal.4th at p. 1130, citing Gamache, supra,48 Cal.4th at p. 376.) Applying the Watson standard here, we easily conclude
the error was harmless.
The evidence of Mayberry’s guilt was overwhelming, even without the
evidence of his possession of items stolen from Lorenzo and Bridget. Before
the robbery and murder, Misty and J.S. overheard Mayberry and Hall discuss
they were going to “come up,” meaning steal. Hall and J.S. both stated
Mayberry drove them to Lorenzo’s apartment complex the morning of
September 18. Mayberry’s physical build matched Bridget’s description of
the person who shot her and Lorenzo. Hall’s testimony established that
Mayberry was the shooter. J.S. observed Mayberry in the aftermath of the
crimes, and said she saw blood spatter on his white tee-shirt. Mayberry
confessed to J.S. and Hall that he shot both victims. Data obtained through
Mayberry’s Gmail accounts confirmed a cell phone linked to both of his Gmail
accounts was in the area of Lorenzo’s apartment when the crimes took place.
Mayberry was captured on surveillance video at the Kingsburg gas station in
the getaway vehicle, and he admitted he was at the gas station at the precise
time the video was recorded. His fingerprint was found on the getaway
vehicle. An empty gun magazine was discovered in a bag that also contained
prescription medicine bearing Mayberry’s name. Although there was
testimony Javonni was physically similar to Mayberry, no evidence placed
Javonni at the scene of the crime. In short, even if one ignores evidence of
Mayberry’s possession of the stolen property, abundant evidence established
his guilt on all counts of conviction, including first degree murder on a felony
murder theory and assault with a firearm.
Further still, the prosecutor did not emphasize the erroneously
modified instruction in his closing arguments to the jury. He referred to
26
CALCRIM No. 376 only once. Mayberry points to a part of the prosecutor’s
rebuttal argument in which he referred to Mayberry having blueberry pie “in
his hair” or “in his hands,” and told the jury Mayberry “ate that pie.”
Mayberry contends this “pie” analogy referred to, and thus unduly
emphasized, the inference of guilt arising from his possession of stolen items.
His reading of the record is incomplete. The prosecutor was summarizing a
variety of items of circumstantial evidence of Mayberry’s guilt, only some of
which related to his possession of stolen property. The prosecutor, by using
this analogy, did not compound the trial court’s instructional error.
On this record, there is no reasonable probability Mayberry would have
received a more favorable result at trial if the court had not erroneously
modified CALCRIM No. 376 to refer to murder and assault with a firearm.
(Watson, supra, 46 Cal.2d at p. 836.)
II.
Mayberry’s Eighth Amendment Challenge to the Felony-Murder Special
Circumstance Fails
Next, Mayberry contends the felony-murder special circumstance in
section 190.2, subdivision (a)(17), violates the Eighth Amendment to the
United States Constitution. He argues “[b]y making all felony murderers
eligible for death, section 190.2[, subdivision (a)(17)] fails to serve the
narrowing function which it is constitutionally required to perform.”
As he acknowledges, however, the California Supreme Court has
repeatedly rejected this same contention, and has instead upheld the felony-
murder special circumstance as providing a meaningful basis for narrowing
death eligibility. (See, e.g., People v. Capers (2019) 7 Cal.5th 989, 1012–1013
[reiterating the “well-established” holding that the “ ‘special circumstances
listed in section 190.2 that render a murderer eligible for the death penalty,
27
which include felony murder and lying in wait, are not so numerous and
broadly interpreted that they fail to narrow the class of death-eligible first
degree murderers as required by the Eighth and Fourteenth Amendments’ ”];
People v. Brooks (2017) 3 Cal.5th 1, 114–115 [source of the holding reiterated
in Capers]; People v. Covarrubias (2016) 1 Cal.5th 838, 934 [the felony-
murder special circumstance is constitutional]; People v. Boyce (2014) 59
Cal.4th 672, 700 [same]; Musselwhite, supra, 17 Cal.4th at pp. 1265–1266
[same].) We are required to follow these decisions, which foreclose his
challenge. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
III.
We Shall Remand for Resentencing in Accordance with Two Recent
Amendments to the Penal Code
Mayberry’s remaining challenges to the judgment consist of three
claims of sentencing error. The first and second challenges based on recent
amendments to the Penal Code have merit, but the third challenge has been
forfeited.
A. The One-Year Term Imposed Under Section 667.5 Shall Be Stricken
First, Mayberry contends the one-year prior prison term enhancement
imposed by the trial court pursuant to former section 667.5, subdivision (b),
must be stricken in light of Senate Bill No. 136 (2019–2020 Reg. Sess.)
(Senate Bill 136), which amended former section 667.5, subdivision (b),
effective January 1, 2020. (See People v. Lopez (2019) 42 Cal.App.5th 337,
341.) “Prior to this amendment, the statute provided for a one-year
enhancement for each prior separate prison term, unless the defendant
remained free from both prison custody and the commission of a new felony
for a five-year period after discharge. [Citations.] After the amendment, ‘a
28
one-year prior prison term enhancement will only apply if a defendant served
a prior prison term for a sexually violent offense as defined in Welfare and
Institutions Code section 6600, subdivision (b).’ ” (People v. Gastelum (2020)
45 Cal.App.5th 757, 772 (Gastelum).)
The People concede Mayberry is entitled to the benefits of Senate Bill
136 and his one-year prior prison term sentence enhancement must be
stricken. We agree. It is settled the statutory amendment effected by Senate
Bill 136 is ameliorative and applies retroactively to nonfinal judgments under
the rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada). (See, e.g., People v.
Winn (2020) 44 Cal.App.5th 859, 872; Gastelum, supra, 45 Cal.App.5th at
p. 772.) Mayberry’s judgment remains nonfinal on appeal. Because his prior
prison term was for a robbery conviction (§ 211), not a sexually violent
offense, he cannot be sentenced to a one-year term under the current version
of section 667.5, subdivision (b). The enhancement must be stricken. (See
Gastelum, at p. 773.)
Ordinarily, when “an enhancement is erroneously imposed and the trial
court has already imposed the maximum possible sentence, a remand for
resentencing is unnecessary” and “[w]e may simply strike the enhancement
and affirm the judgment as modified.” (Gastelum, supra, 45 Cal.App.5th at
p. 773.) However, that course has been altered by another new statutory
provision enacted while Mayberry’s appeal was pending, Senate Bill No. 483
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 728, § 1) (Senate Bill 483). Senate
Bill 483 added former section 1171.1 to the Penal Code. (Stats. 2021, ch. 728,
§§ 1, 2.) Effective June 30, 2022, former section 1171.1 was renumbered as
section 1172.75. (Stats. 2022, ch. 58, §12.) We refer to the new provision as
recently renumbered.
29
Section 1172.75 provides that “[a]ny sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of Section
667.5, except for any enhancement imposed for a prior conviction for a
sexually violent offense as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code is legally invalid.” (§ 1172.75, subd. (a).) It
requires recall of sentence and resentencing of all persons in custody serving
a term for a judgment that includes the repealed enhancement. (§ 1172.75,
subds. (b), (c).) It contains procedures and deadlines for recall of sentence
and resentencing of all such persons. (§ 1172.75, subds. (b)–(e).) The latest
deadline for resentencing is December 31, 2023. (§ 1172.75, subd. (c)(2).)
The new law also sets out specific instructions for any such
resentencing. (§ 1172.75, subds. (d)–(e).) These include the following. First,
“[r]esentencing pursuant to this section shall result in a lesser sentence than
the one originally imposed as a result of the elimination of the repealed
enhancement, unless the court finds by clear and convincing evidence that
imposing a lesser sentence would endanger public safety. Resentencing
pursuant to this section shall not result in a longer sentence than the one
originally imposed.” (§ 1172.75, subd. (d)(1).) Second, at the resentencing
hearing, the court “shall apply the sentencing rules of the Judicial Council
and apply any other changes in law that reduce sentences or provide for
judicial discretion so as to eliminate disparity of sentences and to promote
uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) Third, the court “may
consider postconviction factors, including, but not limited to, the disciplinary
record and record of rehabilitation of the defendant while incarcerated,
evidence that reflects whether age, time served, and diminished physical
condition, if any, have reduced the defendant’s risk for future violence, and
evidence that reflects that circumstances have changed since the original
30
sentencing so that continued incarceration is no longer in the interest of
justice.” (§ 1172.75, subd. (d)(3).) Fourth, “Unless the court originally
imposed the upper term, the court may not impose a sentence exceeding the
middle term unless there are circumstances in aggravation that justify the
imposition of a term of imprisonment exceeding the middle term, and those
facts have been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”
(§ 1172.75, subd. (d)(4).)
In a supplemental brief, Mayberry argues that simply striking the one-
year enhancement imposed under the repealed portion of former section
667.5, subdivision (b), without remanding to the trial court for resentencing,
would deprive him of his right to resentencing pursuant to the changes in the
law that resulted from the enactment of Senate Bill 483. The People do not
address this position in their responsive supplemental brief. We agree with
Mayberry that he is statutorily entitled to be resentenced under section
1172.75. The plain language of the statute makes recall of sentence and
resentencing of all persons in his circumstance mandatory. Consequently, we
will strike the one-year prior prison term enhancement and remand the
matter for resentencing under section 1172.75.
B. The Trial Court Did Not Exercise Its Sentencing Discretion Under
Section 654, as Amended by Assembly Bill No. 518; We Are Compelled
by the Mandatory Resentencing Provisions of Section 1172.75 to
Remand for Resentencing on This Ground
Next, in supplemental briefing, Mayberry contends he is entitled to be
resentenced in accordance with Assembly Bill No. 518 (2021–2022 Reg. Sess.)
(Assembly Bill 518). Effective January 1, 2022, Assembly Bill 518 amended
section 654 to provide in relevant part, “An act or omission that is punishable
in different ways by different provisions of law may be punished under either
of such provisions, but in no case shall the act or omission be punished under
31
more than one provision.” (Stats. 2021, ch. 441, § 1, italics added.)
Previously, under section 654, “the sentencing court was required to impose
the sentence that ‘provides for the longest potential term of imprisonment’
and stay execution of the other term.” (People v. Mani (2022) 74 Cal.App.5th
343, 379 (Mani); People v. Jones (2022) 79 Cal.App.5th 37, 45 (Jones).) “As
amended by Assembly Bill 518, . . . section 654 now provides the trial court
with discretion to impose and execute the sentence of either term, which
could result in the trial court imposing and executing the shorter sentence
rather than the longer sentence.” (Mani, at p. 379.)
The trial court, applying the former version of section 654, imposed and
executed a term of life without the possibility of parole on count 1 (first
degree felony murder of Lorenzo), enhanced by an indeterminate sentence of
25 years to life under section 12022.53, subdivision (d), and imposed a
determinate term of 11 years on count 3 (assault with a firearm on Bridget),
while imposing but staying a determinate term of 12 years on count 2 (first
degree robbery of Lorenzo and Bridget). The parties agree the discretion
newly conferred by Assembly Bill 518 alters the court’s options with regard to
which of these sentences to stay or execute. In addition, the People concede
this amendment to section 654 applies retroactively to Mayberry, as the
amendment is ameliorative and his judgment was not final when it became
effective. Their concession is well taken. (See, e.g., Mani, supra, 74
Cal.App.5th at p. 379 [Assembly Bill 518 applies retroactively to all nonfinal
judgments under the Estrada rule]; Jones, supra, 79 Cal.App.5th at p. 45
[same].)
Ordinarily, remand is the appropriate course when retroactive changes
in law affect the sentencing court’s discretion. This is so because
“ ‘[d]efendants are entitled to sentencing decisions made in the exercise of the
32
“informed discretion” of the sentencing court’ ” (People v. Gutierrez (2014) 58
Cal.4th 1354, 1391 (Gutierrez)), and “ ‘a court that is unaware of its
discretionary authority cannot exercise its informed discretion.’ ” (People v.
McDaniels (2018) 22 Cal.App.5th 420, 425.) An exception to this requirement
exists, however, in the circumstance where “ the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.’ ” (Gutierrez, at p. 1391.) When
“ ‘ “the record shows that the trial court would not have exercised its
discretion even if it believed it could do so, then remand would be an idle act
and is not required.” ’ ” (McDaniels, at p. 425; see People v. Flores (2020) 9
Cal.5th 371, 431–432 (Flores) [holding remand to resentence defendant to
exercise sentencing discretion conferred by statutory amendment would be an
idle act]; People v. Jones (2019) 32 Cal.App.5th 267, 273–274 [same]; People v.
McVey (2018) 24 Cal.App.5th 405, 419 [same].)
Here, the parties dispute whether a remand for resentencing is
necessary. The People contend it is apparent from the trial court’s
statements at sentencing that a remand to exercise its discretion under the
amended version of section 654 would be an idle act. At the sentencing
hearing, the trial court recognized it had “discretion pursuant to Romero,”
discretion “pursuant to [section] 12022.53[, subdivision (d)] to strike” the
enhancement, and “would have discretion concerning striking any of the
special circumstances and discretion concerning any other related sentencing
matters.” The court stated: “However, given the facts and circumstances of
this case -- [the prosecutor] described it as tragic. The court agrees. . . . [I]t’s
tragic any time someone loses a life. The los[s] of life here was made more so
only by the actions of Mr. Mayberry. It’s also tragic that he’s a young man.
And the sentence will require he serve the rest of his life in prison.” The
33
court said it could not ignore “the related shooting of the young woman who
was present at the time which could be described as both call[o]us if not
torture against her to try to get her to give up the location of the drugs,” or
Mayberry’s “post offense conduct, including comments that he may have
taken other actions concerning other individuals who were witnesses or
involved, including killing them.” The court stated it was “clear that Mr.
Mayberry[ ] . . . was the cause of the tragedy and would continue to be so
should he be released. For those reasons I’m not exercising any of the
discretion noted.” At the end of the hearing, after imposing sentence, the
court stated: “I know I’m repeating myself. I’m doing so intentionally. The
court has done its best to consider every potential sentencing option, to
consider every aspect in which I have to exercise my discretion. And I do not
and would not impose any different sentence than the one imposed today.”
The People contend it is clear from the trial court’s statements that it would
have made the same sentencing decision even if it had possessed the
discretion afforded by Assembly Bill 518 at the time of sentencing.
Mayberry acknowledges courts have denied resentencing when the
record demonstrates with clarity how the court would exercise its discretion
under a new enactment. However, he points out that he will be resentenced
under section 1172.75 (as discussed ante), and the statutory instructions on
resentencing (§ 1172.75, subds. (d)(1)–(4)) require the sentencing court to
take reforms in the sentencing laws into account at the time of resentencing.
He essentially contends a remand for resentencing in accordance with the
newly-amended version of section 654 is required under the mandatory
resentencing provisions of section 1172.75. The People do not respond to this
argument in their supplemental responsive brief.
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Mayberry’s argument is not without merit. Section 1172.75 includes
the following provision governing resentencing of persons like Mayberry who
are serving an invalid prior prison term enhancement imposed under the
repealed portion of section 667.5, subdivision (b): “The court shall apply the
sentencing rules of the Judicial Council and apply any other changes in law
that reduce sentences or provide for judicial discretion so as to eliminate
disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75,
subd. (d)(2), italics added.) Section 1172.75, subdivision (d)(2), by using the
word “shall,” makes consideration of “changes in law that reduce sentences”
mandatory. The change in discretion effected by the enactment of Assembly
Bill 518 allows sentencing courts to execute the shorter prison sentence and
stay the longer prison sentence, and thus it constitutes a change in law that
“reduce[s] sentences.” (See § 1172.75, subd. (d)(2).) The requirement in
subdivision (d)(2) of section 1172.75 that at resentencing the court “shall . . .
apply any other changes in law that reduce sentences” effectively requires the
court to consider the discretion afforded by the newly amended version of
section 654 at a resentencing proceeding conducted pursuant to section
1172.75. We are required to follow the plain language of section 1172.75.
(See People v. Boyd (1979) 24 Cal.3d 285, 294.)
Moreover, the Legislature is presumed to be aware of “judicial decisions
in effect at the time legislation is enacted.” (People v. Overstreet (1986) 42
Cal.3d 891, 897.) In drafting Senate Bill 483 (which added former section
1171.1, now section 1172.75, to the Penal Code), the Legislature was
presumably aware of the “idle act” exception articulated in such cases as
Flores, supra, 9 Cal.5th at pages 431 through 432 and Gutierrez, supra, 58
Cal.4th at page 1391. And yet the Legislature made no exceptions to the
statutory resentencing mandate (or the related requirement the sentencing
35
court, at the time of resentencing, must apply changes in sentencing laws
that reduce sentences) for the circumstance where the original sentencing
court made clear it would not exercise its discretion to impose a different
sentence. “ ‘ “ ‘The courts may not speculate that the legislature meant
something other than what it said. Nor may they rewrite a statute to make it
express an intention not expressed therein.’ ” ’ ” (People v. Burgio (1993) 16
Cal.App.4th 769, 778.)
Under section 1172.75, the fact that Mayberry’s sentence includes a
now invalid one-year term imposed under the repealed portion of section
667.5, subdivision (b), entitles him to be resentenced. By operation of
subdivision (d)(2) of section 1172.75, the resentencing proceeding must
include consideration of the discretion newly afforded by the amended version
of section 654. As the relevant statutory language is mandatory, we cannot
deny resentencing on the ground urged by the People. Under this unique
circumstance, we are compelled to remand for resentencing under section
654, as amended by Assembly Bill 518. Accordingly, we will do so.
C. Mayberry Is Not Entitled to Have the Trial Court Reconsider Its
Decision to Impose a 25-Year-to-Life Term Under Section 12022.53,
Subdivision (d)
Finally, on January 20, 2022, the California Supreme Court issued a
decision in which it clarified that trial courts have discretion to impose a
lesser included but uncharged firearm enhancement under section 12022.53,
rather than the 25-year-to-life term mandated by subdivision (d). (People v.
Tirado (2022) 12 Cal.5th 688, 692 (Tirado).) Mayberry argues he is entitled
to be resentenced in light of this decision. The People respond that Mayberry
forfeited this claim. We agree the matter has been forfeited.
The forfeiture doctrine “appl[ies] to claims involving the trial court’s
failure to properly make or articulate its discretionary sentencing choices.”
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(People v. Scott (1994) 9 Cal.4th 331, 353.) Thus, “complaints about the
manner in which the trial court exercises its sentencing discretion and
articulates its supporting reasons cannot be raised for the first time on
appeal.” (Id. at p. 356.) Here, Mayberry had the opportunity to raise, and
thereby preserve, the discretionary sentencing choice he identifies. People v.
Morrison (2019) 34 Cal.App.5th 217, which our high court approved of when
it decided Tirado, was issued eight months before Mayberry was sentenced.
(See Tirado, supra, 12 Cal.5th at p. 697 [“Morrison correctly described the
scope of a trial court’s sentencing discretion under section 12022.53.”].)
Mayberry could have relied on Morrison at his sentencing hearing to seek a
lesser included firearm enhancement under section 12022.53, but he did not.
(See Morrison, at p. 222.)
We conclude Mayberry forfeited this sentencing challenge. And
because this sentencing issue does not arise from a “change[ ] in law” (see
§ 1172.75, subd. (d)(2)), Mayberry is not entitled to have the trial court
reconsider its decision to sentence him to a term of 25 years to life under
section 12022.53, subdivision (d), when he is resentenced.
DISPOSITION
Mayberry’s sentence is vacated and modified to strike the one-year
prior prison term enhancement. The matter is remanded for resentencing
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consistent with section 1172.75 and this opinion. In all other respects, the
judgment is affirmed.
DO, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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