[b]NOT TO BE PUBLISHED IN OFFICIAL REPORTS[/b]

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.

Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Hector Mendieta guilty of one count of first degree murder (Pen. Code, § 187, subd. (a)), with a further finding that he personally used a dangerous or deadly weapon (a knife) (id., § 12022, subd. (b)(1)). The trial court sentenced Mendieta to an indeterminate prison term of 26 years to life.

Mendieta contends that the trial court violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution and committed prejudicial evidentiary error by precluding defense counsel from questioning a central prosecution witness about the witness's immigration status to show the witness had a motive to testify in a manner favorable to law enforcement. We conclude that Mendieta's argument lacks merit, and we accordingly affirm the judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

After midnight on September 10, 2002, in the parking lot of a bar in Escondido (the bar) Mendieta stabbed Bartolo Velador six times, including twice in the chest and twice in the back. Shortly thereafter, Velador bled to death. Mendieta fled to Mexico and was extradited to the United States in 2016 to face trial in this case for Velador's murder.

At trial, several witnesses who were at the bar the night Velador was killed testified to what they remembered from 2002.

Renee S.[url=#_ftn1][1][/url] was a friend of both Velador and Mendieta, and had a prior intimate relationship with Mendieta. She and Velador went to the bar twice on the evening of the stabbing. The first time was sometime after 8:30 p.m., and they stayed only a few minutes. Mendieta and his friends were playing pool. As Velador walked by, Mendieta said something such as "Get the fuck out of here" and "What are you doing here?" Mendieta was agitated and angry, and Velador seemed confused as to why. Velador and Renee left the bar and returned sometime after midnight for the second visit. During that visit, Renee was in the front parking lot of the bar talking to a woman named Maria L. After a few minutes, Velador exited the front door of the bar, with Mendieta following behind him.[url=#_ftn2][2][/url] Mendieta angrily and loudly confronted Velador with the same sort of hostile statements he made earlier, such as "What the fuck are you doing here?" Velador stated that he didn't want any problems and put his hands up in a nonaggressive manner. Mendieta then twice hit Velador in the face. Velador reached into his pocket, took out something and threw it to the ground. Renee could not see exactly what it was, but she described it as "small . . . like nuts and bolts or something."[url=#_ftn3][3][/url] Renee believed that Velador threw the item to distract Mendieta, so he could run away. Mendieta then pulled out a knife and chased Velador through the parking lot. Renee saw Mendieta stab Velador's torso more than once, and she then looked away. Renee heard Mendieta continue to grunt and groan as he stabbed Velador. In an interview with police on the day of the stabbing, which was played for the jury, Renee told the police that based on the groaning, it was as if Mendieta was "getting some kind of perverse pleasure or somethin[g]" from stabbing Velador. Velador fell to the ground and never got up. Mendieta's friend Miguel V. came out of the bar, and Mendieta and Miguel both started to kick Velador all over his body. Miguel then went into the bar to gather his other companions, and they drove away in a car along with Mendieta and Maria.

Maria testified that she was friends with Mendieta in 2002, and she often spent time at the bar because she was homeless. Maria was talking to Renee in the parking lot of the bar on the night of stabbing when she witnessed Mendieta ask Velador where his money was. Velador then threw "a lug nut or something" about an inch and a half wide at Mendieta, which struck Mendieta in the chest or somewhere else on his body. Mendieta ran toward Velador and started stabbing him. After Velador fell down, Mendieta and Miguel kicked him in the head more than once. Velador did not get back up. Maria left in a car with Mendieta and his friends to drive to the house of Mendieta's aunt. On the way, Mendieta threw the knife out of the car window. At the aunt's house, Maria heard Mendieta say the equivalent of "I fucked him up" in Spanish. Mendieta had blood all over him, including his hands, shirt and shoes.

Orlando B. is Mendieta's cousin. He had a car in 2002, unlike Mendieta, so he often drove Mendieta around, and he was in the bar with Mendieta on the night of the stabbing. Orlando testified that before the day of the stabbing, he was aware that Mendieta did not like Velador. Specifically, a few days earlier, Mendieta had made comments in Velador's presence in the bar, such as "Why is he here" and about Velador being from the other side of town. On the night of the stabbing, Mendieta and his friends were directing hostile looks toward Velador. Orlando witnessed a confrontation between Velador and one of Mendieta's acquaintances, "Chunky," around 9:30 p.m., during which Chunky said something such as "What do you think you are doing here?" to Velador.[url=#_ftn4][4][/url] Velador left the bar, and Mendieta said to his companions, "What was he doing here?"[url=#_ftn5][5][/url]

Later that night, Orlando saw intimidating looks between Mendieta and Velador as the two men walked out the door of the bar. When Orlando went to the bar door and briefly looked outside, he saw Mendieta, Miguel and another friend of Mendieta (Flaco) arguing with Velador, but he could not hear what they were saying. Orlando later told police it seemed the men were arguing about something "stupid" such as how they were looking at each other. A short time later, Miguel came into the bar and told Orlando they had to leave because someone got stabbed. Orlando did not find out until they were on the way to the aunt's house that Mendieta had stabbed Velador.

In the car, Mendieta told Orlando that he got into an argument with Velador in front of the bar, the men engaged in pushing and hitting, and then Mendieta took out his knife and stabbed Velador. Mendieta said he "fucked up the guy," and Mendieta did not sound like he had any remorse for stabbing Velador. At the aunt's house, Orlando saw Mendieta wiping blood from his pants, hands and stomach. Orlando left the aunt's house and was arrested the next day. Orlando eventually told the police what happened, and he later pled guilty to being an accessory after the fact.

Mendieta testified in his own defense. He admitted to stabbing Velador, but claimed he did it because he was scared of Velador. According to Mendieta, he had never before spoken with Velador, including any hostile comments earlier on the day of the stabbing. Mendieta testified that immediately before the stabbing, he was smoking a cigarette outside the bar when he made eye contact with Velador, who said to him the equivalent of "What the fuck are you looking at?" in Spanish. Mendieta responded with something such as "Fuck off" or "Get the hell out of here." Velador punched Mendieta, and Mendieta punched back. Velador put his hand in his pocket and took out something shiny. In response, Mendieta took out his knife. When Velador threw something at Mendieta, which hit him in the chest, Mendieta swung at Velador with his knife and stabbed him multiple times. Mendieta thought that Velador had taken a knife out of his pocket before throwing something because Mendieta saw a flash of metal. Not until the fight was over did Mendieta realize that he was not being stabbed by Velador as they fought. According to Mendieta, Miguel kicked Velador while Velador was fighting with Mendieta on the ground, but Mendieta himself never kicked Velador. After the stabbing, Mendieta left in a car with his friends, threw away the knife while in route to his aunt's house, and washed his clothes to remove the blood that was on his shirt, pants and shoes. Mendieta denied ever telling his friends "I fucked him up" regarding Velador and denied that he ever had any animosity toward Velador or interactions with him before the stabbing. Mendieta fled to Mexico shortly after the stabbing and had no intention of ever returning to the United States.

The physical evidence presented at trial showed that after the stabbing, the bar's parking lot was covered in numerous puddles of blood, which stretched a length of 100 feet from the door of the bar to the location in the parking lot where Velador was lying on the ground. Velador had six deep stab wounds in his body: two in his chest, which damaged his aorta; two in his back, which penetrated his lungs; one in his shoulder; and one in his arm. Velador also had a cut over his left collarbone, and multiple abrasions from blunt force trauma on his face, elbow, legs, thighs and knees.

The jury convicted Mendieta of first degree murder (Pen. Code, § 187, subd. (a)), and made a true finding that he personally used a dangerous or deadly weapon (a knife) (id., § 12022, subd. (b)(1)). Mendieta was sentenced to an indeterminate prison term of 26 years to life.

II.

DISCUSSION

As the only issue raised on appeal, Mendieta challenges the trial court's decision to sustain the People's objection to defense counsel's attempt to impeach Orlando's credibility by asking Orlando whether he had any "issue" with his "immigration status."

A. Background

During Orlando's direct examination, the prosecutor elicited testimony from Orlando that he had left California without completing his probation for the conviction he incurred for being an accessory after the fact. Orlando testified that when he was in California for the preliminary hearing in this case in April 2017, he admitted the probation violation, but he had not yet been sentenced. Orlando stated that he was not testifying in a certain way based on a belief that such testimony could benefit him in the sentencing for his parole violation.

During cross-examination of Orlando, defense counsel confirmed with Orlando that he was going to "get sentenced for a probation violation at some point when this murder case [where] you're testifying right now is concluded." Defense counsel then asked, "And what about your immigration status? Is that an issue that you have—" The People interposed an objection on the basis of relevancy. The trial court held a sidebar discussion about the objection, during which defense counsel argued that due to Orlando's immigration status, Orlando "may subconsciously want to . . . please the prosecutor more," and that "a recommendation from the prosecutor, in his mind, might make his being deported less likely." However, defense counsel admitted that he could not make an offer of proof as to what Orlando might say about his immigration status because Orlando's immigration attorney "put the nix" on his proposal to interview Orlando.[url=#_ftn6][6][/url] Nevertheless, defense counsel argued that deportation is "a concern that [Orlando] has to have after admitting a felony probation violation." The People informed the trial court, "We've offered him nothing." During an in limine hearing, when another aspect of Orlando's testimony was at issue, the prosecutor had already informed the trial court that "we are doing nothing with him with regard to immigration."

After conducting an analysis under Evidence Code section 352, the trial court sustained the People's objection. The trial court explained that although defense counsel was unable to provide any offer about what Orlando would say regarding his immigration status, the issue "might have some marginal relevance." However, the trial court did not want "to waste an inordinate amount of time talking about [Orlando's] immigration status and confusing the issue," and thus ruled that it would disallow questioning on that issue.

B. Mendieta's Confrontation Clause and Evidentiary Error Arguments
Mendieta contends that the trial court prejudicially erred in two respects by sustaining the prosecutor's objection to the question about Orlando's immigration status. First, he contends that his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated because he was prevented from impeaching Orlando's credibility by showing Orlando's motive to testify in a manner that would favor the prosecution. Second, he contends that the trial court abused its discretion afforded under the rules of evidence by sustaining the People's objection under Evidence Code section 352.

As an initial matter, we address the issue of forfeiture. Mendieta did not raise any Confrontation Clause argument in the trial court when arguing that he be permitted to question Orlando about his immigration status. The People contend that Mendieta has accordingly forfeited the Confrontation Clause argument. (See People v. Thornton (2007) 41 Cal.4th 391, 427 ["Defendant contends that the trial court erred in sustaining prosecution objections to evidence he wished to develop" and "that the result deprived him of his right to confront the witnesses against him under the confrontation clause . . . . Because he did not raise this claim before the trial court, he has forfeited it"].)[url=#_ftn7][7][/url] In his reply brief, Mendieta argues that if the Confrontation Clause challenge is forfeited, we should nevertheless exercise our discretion to consider the issue. To forestall any ineffective assistance of counsel claim, we will exercise our discretion and reach the Confrontation Clause issue regardless of whether it has been forfeited.

1. Confrontation Clause

"The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him.'. . . . Of particular relevance here, '. . . the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.' . . . It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 (Van Arsdall), citations omitted.)

"In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. . . . A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (People v. Quartermain (1997) 16 Cal.4th 600, 623-624 (Quartermain), citation omitted, italics added.) When the evidence in question "would impeach [a] witness[] on collateral matters and [is] only slightly probative of . . . veracity, application of Evidence Code section 352 to exclude the evidence [does] not infringe defendant's constitutional right to confront the witnesses against him." (People v. Jennings (1991) 53 Cal.3d 334, 372.)

For two reasons, Mendieta has not established that the "jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (Quartermain, supra, 16 Cal.4th at p. 624.)

First, defense counsel admitted that he had no offer of proof regarding Orlando's immigration status. " 'It is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise,' and a specific offer of proof is necessary in order to preserve an evidentiary ruling for appeal. [Citation] 'An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.' " (People v. Brady (2005) 129 Cal.App.4th 1314, 1332; see also People v. Morrison (2004) 34 Cal.4th 698, 711 [" 'As a condition precedent to challenging the exclusion of proffered testimony, Evidence Code section 354, subdivision (a), requires the proponent make known to the court the 'substance, purpose, and relevance of the excluded evidence . . . .' "].) Here, because defense counsel was unable to provide an offer of proof regarding the evidence he wished to have admitted, we have no basis on which to conclude that admission of the evidence about Orlando's immigration status would have given the jury a significantly different impression about his credibility.

Second, even if Orlando was concerned about being deported after having admitted the probation violation, the jury would not have received a significantly different impression of Orlando's credibility. Because the jury was already aware of evidence that was more probative of Orlando's possible bias in favor of the People, introduction of evidence that Orlando also had a problem with his immigration status would not have been likely to significantly change the jury's impression of whether Orlando had a reason to testify in a manner favorable to the People. Specifically, as we have explained, the jury was aware that Orlando was awaiting sentencing in California on a probation violation. In light of Orlando's pending sentencing, the jury could infer that Orlando might have believed that the People would make a favorable recommendation at sentencing if he helped them in Mendieta's prosecution by offering certain testimony. However, because immigration is a federal matter, evidence that Orlando could have a problem with his immigration status constitutes much weaker evidence that Orlando had a motive to curry favor with the People. Indeed, the prosecutor repeatedly explained to the trial court during the in limine hearing that the People had no involvement in any immigration issues concerning Orlando. Thus, Mendieta has not established that jury might have significantly changed its impression about Orlando's possible bias toward the People had defense counsel been able to examine Orlando about any possible immigration issues, as the possibility of such bias had already been presented through much stronger evidence about Mendieta's pending sentencing for his probation violation.

2. State-Law Evidentiary Error

Mendieta also contends that the trial court erred in applying Evidence Code section 352 to exclude evidence of Orlando's immigration status.

"As a general matter, a defendant is entitled to explore whether a witness has been offered any inducements or expects any benefits for his or her testimony, as such evidence is suggestive of bias." (People v. Brown (2003) 31 Cal.4th 518, 544.) Nevertheless, "[a] trial court may restrict defense cross-examination of an adverse witness on the grounds stated in Evidence Code section 352." (People v. Whisenhunt (2008) 44 Cal.4th 174, 207.) Evidence Code section 352 gives the trial court discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We do not disturb that discretion unless it was exercised in " 'an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) " '[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.' " (People v. Ayala (2000) 23 Cal.4th 225, 301.)

Here, the trial court explained that evidence regarding Orlando's immigration status "might have some marginal relevance," but it would exclude the evidence to avoid wasting an inordinate amount of time and confusing the issues. The trial court was well within its broad discretion to make such a ruling. As we have explained, the jury already had before it much stronger and more direct evidence of a possible motive for Orlando to try to curry favor with the prosecution, namely he was awaiting sentencing on his probation violation. In light of that evidence, the trial court could reasonably conclude that the admission of additional evidence that was only marginally relevant to Orlando's possible bias toward the People was not justified in light of the time it would consume and the risk it posed of introducing extraneous and confusing issues concerning immigration matters to the jury.

3. Prejudice

Even were Mendieta to establish error, he would not be able to establish prejudice. The more demanding standard of prejudice, which applies to a Confrontation Clause violation, requires us to examine whether "the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors . . . . These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Van Arsdall, supra, 475 U.S. at p. 684.)

Mendieta contends that if he was able to impeach Orlando's credibility by introducing evidence regarding Orlando's immigration status, the prosecution may not have been able to establish that Mendieta acted with premeditation and deliberation in killing Velador. Specifically, Mendieta argues that two items of Orlando's testimony were crucial to establishing premeditation and deliberation: (1) Orlando's testimony that Mendieta exhibited animosity toward Velador before the stabbing, contradicting Mendieta's claim that he had never before interacted with Velador; and (2) Orlando's testimony that Mendieta did not express any remorse in the car after the killing, and instead stated that "he fucked up the guy," referring to Velador.

We reject Mendieta's argument because Orlando's testimony was cumulative of other evidence on the issues identified by Mendieta. On the issue of preexisting animosity between Mendieta and Velador, Renee testified that on her first visit to the bar with Velador on the night of the stabbing, Mendieta made hostile remarks to Velador that indicated that Velador was unwelcome in the bar, such as "Get the fuck out of here" and "What are you doing here?" On the issue of whether Mendieta expressed any remorse immediately after the stabbing, Maria was also in the car with Orlando and Mendieta, and she did not testify to any expression of remorse by Mendieta. Further, consistent with Orlando's testimony (and contrary to Mendieta's denial of making such a statement), Maria testified that she heard Mendieta say "I fucked him up" about Velador. In light of this testimony by Renee and Maria that corroborated Orlando's testimony, we conclude beyond a reasonable doubt that Mendieta would not have received a more favorable result on the issue of premeditation and deliberation had the jury heard evidence about any immigration issue involving Orlando that might have caused the jury to doubt Orlando's credibility.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

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Plaintiff Jonathan Asselin-Normand brought several causes of action against defendants America’s Best Value Inn, et al. arising out of the defendants’ alleged policy of requiring a minimum guest check-in age of 21. Asselin-Normand appeals following the trial court’s order of dismissal. He challenges the dismissal on several grounds. He also contends remand is required in light of Jameson v. Desta (2018) 5 Cal.5th 594 at page 623, because the trial court granted him a fee waiver, but failed to make an official court reporter available to him at the hearing that led to the dismissal. That contention has merit. We will reverse the order of dismissal and remand for a new hearing.

BACKGROUND

In November of 2016, Asselin-Normand brought suit against America’s Best Value Inn, et al. alleging, inter alia, violations of the Unruh Act arising out of the defendants’ alleged policy of requiring a minimum guest check-in age of 21. Several days later, he moved ex parte for a temporary restraining order and an order to show cause.

A week later, a hearing was held. No court reporter was present at the hearing, but the clerk’s minutes reflect that two witnesses testified for the defense, and oral arguments were heard. At the hearing’s conclusion, the trial court denied the order to show cause finding no basis to support it. The minute order also stated, the court “dismisses the lawsuit in its entirety.”

Defendant appealed both the denial of the preliminary injunction and the dismissal. This court affirmed the denial of the preliminary injunction finding the record did not demonstrate Asselin-Normand had shown irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte. (Asselin-Normand v. America’s Best Value Inn (Dec. 11, 2017, C084028 [nonpub. opn.]) As to the challenged dismissal, this court concluded it lacked jurisdiction to consider the claim because the record contained only an unsigned minute order that did not qualify as an appealable judgment. (Asselin-Normand v. America’s Best Value Inn, supra, C084028.)

On remand, Asselin-Normand prepared, and the trial court signed, an order of dismissal. In pertinent part it provides: “Before the hearing, the Court was inclined to deny the application on the ground nothing in the Unruh Civil Rights Act protects persons from age discrimination. After the presentation of oral testimony by Defendants, in opposition to the application, during which the subject motel’s general manager testified the motel had not had the minimum check-in age requirement that is alleged in the complaint, the Court found there was further no reason to continue with the action and ordered sua sponte the dismissal of the action in its entirety.”

Asselin-Normand again appeals.

DISCUSSION

On this appeal, Asselin-Normand challenges the dismissal, raising several arguments in support.[url=#_ftn1][1][/url] We do not reach those arguments because we conclude reversal and remand for a new hearing is required to afford Asselin-Norman an opportunity to have a court reporter present, pursuant to Jameson v. Desta, supra, 5 Cal.5th at page 623.

Jameson held that when a superior court adopts a policy of not making official court reporters available in civil cases – but parties who can afford to pay for private reporters are permitted to do so – the superior court must include an exception for fee waiver recipients. (Jameson, supra, 5 Cal.5th at p. 623.) In Jameson, the plaintiff, a prisoner, brought suit against a prison physician. (Id. at p. 599.) The case eventually went to trial. (Id. at p. 600.) But 10 days before trial, the plaintiff was notified the court no longer provided reporters for civil trial, and the parties would have to provide their own.[url=#_ftn2][2][/url] (Id. at p. 600.) Neither party did. (Id. at p. 601.)

At trial, after both parties made opening statements, the defendant successfully moved for nonsuit and for dismissal for failure to bring the suit to trial within five years. (Jameson, supra, 5 Cal.5th at p. 601.) The plaintiff appealed, and the appellate court affirmed the grant of nonsuit, concluding none of the plaintiff’s arguments were cognizable absent a transcript. (Id. at p. 602.) The court noted that under the superior court’s policy, all parties, including those with fee waivers, are responsible for the fees and costs associated with reporter services. (Ibid.)

The California Supreme Court reversed, concluding that when a superior court adopts a policy of not making reporters available in civil cases, it must provide an exception for parties granted fee waivers. (Jameson, supra, 5 Cal.5th at p. 623) As such, the trial court erred in failing to make an official reporter available to the plaintiff upon request. (Ibid.) Further, the absence of a reporter was not harmless because it precluded the plaintiff from obtaining a transcript or using the reporter’s notes for a settled statement. (Id. at pp. 624-625.)

Asselin-Normand’s case presents a similar scenario. The Yuba County local rules, in effect at the time of the hearing, did not generally make official reporters available for civil cases and offered no exception for fee waivers recipients: “Superior Court of California, County of Yuba does not routinely provide court reporters, except in proceedings involving LPS conservatorships, felony criminal and juvenile dependency and wardship, and other proceedings where the Court may be required by law on request to provide a transcript of proceedings. Parties who desire to have a court reporter present for any other proceedings must make their own arrangements with any reporting service they desire. [¶] B. The court shall provide court reporters in accordance with Gov. Code § 68086 and [California Rules of Court,] rule 2.956.”[url=#_ftn3][3][/url] (Super. Ct. Yuba County, Local Rules, rule 2.10 (effective Jan. 1, 2013).)

Asselin-Normand, in his reply brief, represents that he had obtained a fee waiver from the trial court.[url=#_ftn4][4][/url] And there is no indication the trial court inquired into whether he wanted the proceedings recorded or could afford a certified reporter. (See Jameson, supra, 5 Cal.5th at pp. 600-601 [noting the lack of indication the plaintiff was asked if he wanted the proceedings recorded or could afford a certified shorthand reporter].)

As such, when the hearing was held, to which claims of error are now raised, no court reporter was present, no transcript was consequently prepared, and we have only the bare outline of the civil minutes. Normally, the lack of a court reporter at trial precludes resolving on appeal a claim on the merits because the trial court’s judgment is ordinarily presumed correct, and the appellant bears the burden of demonstrating error on the basis of the record presented to the appellate court.[url=#_ftn5][5][/url] (Jameson, supra, 5 Cal.5th at pp. 608-609.) But here, pursuant to Jameson, because Asselin-Normand was a fee waiver recipient and because the superior court did not provide an exception for such litigants, remand is required for a new hearing in order to afford Asselin-Normand an opportunity to have an official court reporter present.

DISPOSITION

The judgment of dismissal is reversed and the matter is remanded for a rehearing consistent with this opinion.

[u] /s/ [/u]

HOCH, J.

We concur:

[u] /s/ [/u]

RAYE, P. J.

[u] /s/ [/u]

HULL, J.

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Minor, C. B. challenges a judgment entered after the juvenile court, following a contested jurisdictional hearing, found that he had committed robbery and assault by means likely to produce great bodily injury, and found true that he had personally used a firearm in the robbery. The minor makes two related arguments, which he claims require reversal. First, he asserts the juvenile court committed misconduct when it secretly conducted an experiment on the minor’s gun by manipulating the lighting in the judge’s chambers. Second, he argues the prosecution committed misconduct when it manipulated the minor’s gun in a photograph admitted into evidence, which encouraged the juvenile court’s illicit independent investigation. Finally, he argues given the passage of Senate Bill No. 620 (2017-2018 Reg. Sess.) amending Penal Code section 12022.53, remand is required in order to allow the juvenile court to exercise its sentencing discretion. The People concur remand is required for this limited purpose, but disagree with the minor’s first two arguments.

We will remand to allow the juvenile court to exercise its sentencing discretion and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We limit our recitation to that necessary to provide a general background and determination of defendant’s issues on appeal.

The victim testified he was in the eleventh grade and was walking home from school while wearing Michael Jordan shoes. It was cloudy and starting to rain. He took his usual route, which took him through the parking lot of a large shopping center. In that lot, he saw a four-door, dark blue Infiniti sedan with no plates pulling out of a parking spot with two people in the front and three people in back. A person sitting in the rear passenger seat (which the victim identified in court as the minor), rolled down the window and asked the victim if he would sell his shoes. The victim was 15 to 20 feet from the minor and had a good view of him. The victim said no, and the minor said ok, and rolled up the window. The car took off, and the victim continued walking home.

After crossing the parking lot, the victim saw the same blue Infiniti parked about 30 feet away at the stop sign in his intended path, which scared him. The victim went to turn around and noticed the minor was walking about 15 feet behind him with one hand behind his back. The victim kept walking toward the blue Infiniti, and the minor sped up and asked him whether he wanted to buy some marijuana, and the victim said no. The minor was about a foot away when he pulled a gun out from behind his back and hit the victim in the chest with it. The victim believed the gun was a metal semiautomatic with a “dark silver” top and a “lighter silver” grip. When asked to reconcile his descriptions of the gun as silver, but also that the muzzle of the gun was black, he explained, it was a “dark metal.”

The victim backed up and lifted his hands, dropping his umbrella, and the minor ordered the victim to “strip.” In response, the victim tossed the minor one of his shoes and was then hit over the head. He shut his eyes, fell to the ground, and was hit and kicked by multiple people. The victim opened his eyes in time to see people (including the minor) running to the blue Infiniti, which was still at the stop sign. They got in and drove away. His other shoe was gone.

The day of the robbery, the minor was dressed in a grey hoodie, with a black, “True Religion” beanie and a metallic grill. The victim identified the beanie in People’s exhibit four as being the same or similar to the beanie he saw the minor wearing. He thought the person who robbed him was about the same height as he: 5 feet 10 to 11 inches tall.

The victim did not have a phone. He finished walking home and told his father what had happened. Among his injuries, he had a knot on the back of his head.

The next day, the victim searched social media looking for his attacker and located a video post of the victim’s friend rapping with the minor standing in the background. He recognized the minor’s face, and the minor was wearing the same beanie. The victim continued digging and located the minor’s Instagram screen names and used one of those names within Facebook to identify the minor’s true name. He gathered screen shots from the minor’s Instagram and Facebook accounts, but did not initially tell anyone because he did not want himself or his family to get hurt. Ultimately, the victim shared screen shots with a school resource officer who followed up with him about the robbery. In one of those screen shots, the minor was wearing the same beanie and holding a semiautomatic handgun. The victim testified the handgun from the screen shot appeared to be the same handgun from the robbery. The muzzle of the gun in the screen shot looked “black,” but also “metallic and metal.” The victim identified the beanie and gun offered at trial as being those the minor had on the day of the robbery. The gun was dark silver and had a shine on its side, visible in the light, and the lower part of the gun was brown.

Officer Nalee Moua testified to interviewing the victim the day of the robbery. The victim described his assailant as a skinny Asian male in his teens, 5 feet 10 inches tall with a silver grill who was wearing a “True Religion” beanie, black sweater, and light blue jeans. Officer Moua used her service weapon to aid the victim in describing the gun that had been used in the robbery, which he said was similar to the gun used; he pointed to what she interpreted as the slide and told her it was silver.

Detective Justin Johnson testified to participating in a search of the minor’s residence, where he collected from a bedroom, which also contained the minor’s mail, a “True Religion” beanie, as well as a semiautomatic handgun located in a shoebox on the floor of the closet. He described the gun as a green Glock with a nonshiny, matte black slide.

District attorney investigator Scott Waterman testified to taking a photo of the Glock recovered with a flash and after closing the blinds. Waterman did not clean the gun or otherwise do anything to alter the gun’s appearance. The picture was taken to see if they could recreate a picture that would look like the social media picture of the minor with the gun. Other photos under different conditions may have been taken, but they did not appear the same.

The minor moved four exhibits utilized when questioning witnesses into evidence, but otherwise did not present a defense.

The People argued, in pertinent part, that the handgun admitted into evidence was likely the gun used to rob the victim because the victim’s description of the gun used to rob him was consistent with the gun in evidence, especially in light of Waterman’s photograph of the gun in which the muzzle did not appear black.

In response, minor’s counsel argued the minor had been misidentified by the victim, whose memory had morphed over time by exposure to social media. She argued that the victim’s description shortly after the robbery could not be reconciled with his later identification of the minor’s gun as the weapon used to rob him and urged the juvenile court to compare that description with the physical gun admitted into evidence. The minor’s counsel also accused the district attorney of manipulating evidence by using unnatural lighting conditions not present at the robbery to make the gun appear silver.

In reply, the People argued the victim had credibly testified concerning the crime, and less than a month later, the beanie and gun had been recovered from the minor’s bedroom, corroborating that the minor committed the crime.

DISCUSSION

I

The Juvenile Court’s Jurisdictional Determination

The juvenile court took a 15-minute recess to consider the evidence in chambers. Pertinent to our review, the juvenile court thereafter noted it had reviewed the evidence, including “the firearm in natural light which is how my office is illuminating at this moment.” The court went on to explain that “[w]hile the defense does raise a theoretical doubt, the Court has determined that that doubt is not a reasonable doubt as the gun, in the Court’s assessment, does look different in different lights. Not interpreting it the way the defense interprets is that it’s a black matte firearm. [¶] That is not how the Court sees the firearm, and I do think a reasonable witness description is as provided by the witness.”

The juvenile court, giving “great weight to the very credible witness testimony” and identification made within 24 hours of the crime, sustained the allegations against the minor, including that he had used a firearm.

II

The Juvenile Court’s Viewing Of The Gun In Natural Light

The minor argues the juvenile court committed misconduct when it secretly conducted an experiment on the gun in evidence by manipulating the lighting in the judge’s chambers. The minor relies on subdivision (7) of the advisory committee commentary to California Code of Judicial Ethics, canon 3B(2), which states in pertinent part, “a judge shall not independently investigate facts in a proceeding and shall consider only the evidence presented or facts that may be properly judicially noticed.” We discern no misconduct from the record before us.

In addition to this claim having been waived for failure to object below (People v. Seumanu (2015) 61 Cal.4th 1293, 1320), nothing in the record suggests that the juvenile court judge conducted a new investigation of evidence that went beyond the scope of evidence admitted at trial. Rather, the judge did exactly what the minor’s counsel asked the judge to do in closing argument. The judge examined the gun in her chambers and compared what she saw to the victim’s description of the gun outside, on a cloudy day. Like a jury, the judge was entitled to scrutinize the evidence and even “reexamine th[at] evidence in a slightly different context as long as that evaluation [wa]s within the ‘ “ ‘scope and purview of the evidence.’ ” ’ ” (People v. Collins (2010) 49 Cal.4th 175, 249 [jury may not conduct a new investigation going beyond evidence, but may scrutinize evidence and test reasonable inferences within scope of evidence received].)

Here, the judge considered the appearance of the gun in natural light and determined that the gun looked different in different lighting conditions, and thus, found the victim’s description of the gun was reasonable. This was permissible factfinding, not misconduct. The minor’s remaining authorities on this issue are inapposite. (See, e.g., People v. Handcock (1983) 145 Cal.App.3d Supp. 25 [judge abused discretion by taking pieces of a tail light to an auto dealer, obtaining a replacement lens, and then bringing the parts-employee to court to testify]; People v. Ramirez (1952) 113 Cal.App.2d 842 [judge secretly conducted an experiment designed to test defendant’s testimony and then ordered testing to follow up on that experiment].)

III

The Photographing Of The Gun

The minor argues the prosecution committed misconduct when it manipulated the seized gun in a photograph admitted into evidence to make the color look different, which encouraged the juvenile court to engage in an illicit independent investigation.

Like his previous argument, the minor failed to preserve this issue for appeal through a timely objection. (People v. Hill (1998) 17 Cal.4th 800, 820.) We also find it unpersuasive.

“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) “Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (Ibid.) We find neither circumstance present here.

As noted above, the juvenile court’s examination of the gun in chambers was not an illicit independent investigation. Further, the photographing of the seized gun under different lighting conditions in an attempt to recreate the appearance of the gun, as seen in a social media post, is not manipulating evidence. The district attorney investigator who aided in taking these photographs did not clean or otherwise alter the gun prior to taking the photograph. Further, while a photograph taken of the seized gun with blinds drawn and a flash initially appears to be of limited probative value concerning the appearance of the gun wielded by the victim’s assailant, given that the robbery occurred outside on a cloudy day when it was beginning to rain, that does not mean that the People committed prosecutorial misconduct by photographing that gun under different lighting conditions in an attempt to recreate the same appearance as in the minor’s social media post holding what the People alleged was the same gun. In fact, whether the gun recovered was the same gun from the social media post was relevant because the victim testified the gun in the social media post appeared to be the same gun used to rob him. We discern no misconduct.

IV

The Firearm Enhancement

The minor argues remand is necessary so that the juvenile court may exercise the sentencing discretion authorized by the passage of Senate Bill No. 620. The People concur remand is required for this limited purpose.

On October 11, 2017, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended sections 12022.5 and 12022.53, effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1-2), to permit a trial court to strike a firearm enhancement: “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 authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”

We agree with the parties that Senate Bill No. 620’s amendment should be applied retroactively, and thus, remand is necessary to allow the juvenile court to exercise its newly authorized sentencing discretion. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091 [amendment to Pen. Code, § 12022.53 applied retroactively].)

DISPOSITION

We remand to allow the juvenile court to exercise its sentencing discretion under Penal Code section 12022.53, subdivision (h) concerning whether to strike the firearm enhancement. The judgment is otherwise affirmed.

[u] /s/ [/u]

Robie, J.

We concur:

[u] /s/ [/u]

Hull, Acting P. J.

[u] /s/ [/u]

Murray, J.

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

Defendant Bub Tahchahlah Bamford pleaded no contest to felony driving under the influence (Veh. Code, §§ 23152, subd. (a), 23550.5) with a prior prison term enhancement (Pen. Code, § 667.5, subd. (b))[url=#_ftn1][1][/url] in case No. 13F2842, felony failure to appear (FTA) (§ 1320, subd. (b)) with an on-bail enhancement (§ 12022.1) in case No. 13F2661, and 12 felony FTA counts in case No. 14F3951. The trial court suspended imposition of sentence and placed defendant on probation. When probation was later revoked, the trial court sentenced defendant to a six-year eight-month state prison term.

On appeal, defendant contends the on-bail enhancement should have been stricken because the underlying felony was subsequently reduced to a misdemeanor pursuant to section 1170.18. He also contends that those felony FTA offenses based on felonies that were subsequently reduced to misdemeanors pursuant to section 1170.18, should have been reduced to misdemeanors as well. In our original opinion, we rejected defendant’s contentions and affirmed. Thereafter, the Supreme Court granted defendant’s petition for review and ultimately transferred the case with directions for this court to vacate our prior decision and to reconsider the cause in light of the recently decided People v. Buycks (2018) 5 Cal.5th 857 (Buycks). Applying Buycks, we shall strike the enhancements.

BACKGROUND

We dispense with a summary of the facts of defendant’s crimes as it is unnecessary to resolve this appeal.

Defendant entered no contest pleas resolving the three cases in three proceedings between July 2, 2014, and July 16, 2014. The felony underlying the on-bail enhancement and felony FTA conviction in case No. 13F2661 was a felony charge for possession of drugs (Health & Saf. Code, § 11377) in case No. 13F2117.[url=#_ftn2][2][/url] The felony underlying three of the felony FTA counts in case No. 13F3951 was the same felony possession of drugs charge from case No. 13F2117. Two other felony FTA convictions in this case were based on felony drug possession charges in case No. 13F2300, and three other felony FTA convictions were based on the felony FTA charge in case No. 13F2661.

Defendant was placed on probation on August 29, 2014. He did not appeal from his plea and the order placing him on probation. On March 5, 2015, defendant filed section 1170.18 petitions for resentencing as to the felony drug possession convictions in case No. 13F2117 and the felony FTA convictions in case Nos. 13F2661 and 14F3951. On April 13, 2015, the trial court granted the petition as to the drug possession convictions and reduced them to misdemeanors but denied it as to the felony FTA convictions.

The petition for revocation of defendant’s probation was filed on April 6, 2015, and probation was revoked on the same day. Defendant was sentenced to his six-year eight-month state prison term on July 22, 2015. He filed notice of appeal on August 4, 2015.

DISCUSSION

I

Proposition 47, “ ‘the Safe Neighborhoods and Schools Act’ ” (Act), which was enacted on November 4, 2014, requires “misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified violent or serious crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) Among the affected crimes are various drug possession offenses, including Health and Safety Code section 11377.

The Act also created section 1170.18, which provides in pertinent part: “A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.” (§ 1170.18, subd. (a).) “A felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control a firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.” (§ 1170.18, subd. (k) (hereafter subdivision (k).)

Application of the on-bail enhancements is contingent on felony conviction in a prior case. Under section 12022.1, “if a person charged with a felony (the primary offense) is released on bail or on his or her own recognizance and subsequently is arrested for committing another felony (the secondary offense) while released from custody on the primary offense, and if that person is convicted of both offenses, he or she ‘shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.’ [Citation.]” (People v. Walker (2002) 29 Cal.4th 577, 582, fn. omitted.) While not an element of the enhancement, a felony conviction for the primary offense is an essential prerequisite to its imposition. (In re Jovan B. (1993) 6 Cal.4th 801, 814; In re Ramey (1999) 70 Cal.App.4th 508, 512.) Reducing the prior felony underlying the enhancements pursuant to section 1170.18 therefore raises issues regarding their ongoing validity.

Defendant contends the plain language of section 1170.18, subdivision (k) prevents imposition of the enhancement after the primary offense is reduced to a misdemeanor pursuant to section 1170.18.

In Buycks, the Supreme Court analyzed the meaning of the phrase “Misdemeanor for All Purposes” as used in the Act and concluded that, “in the absence of any express declaration of retroactive application, the default presumption applies to subdivision (k) so that its effect operates only prospectively.” (Buycks, supra, 5 Cal.5th at p. 881.) Applying the rule of In re Estrada (1965) 63 Cal.2d 740, the Supreme Court concluded that subdivision (k) applied retroactively to nonfinal judgments. (Buycks, at pp. 881-882.) “As a result, the reduction of a felony conviction to a misdemeanor conviction under Proposition 47 exists as ‘a misdemeanor for all purposes’ prospectively, but, under the Estrada rule, it can have retroactive collateral effect on judgments that were not final when the initiative took effect on November 5, 2014. [Citation.]” (Id. at p. 883.)

Subdivision (k) could apply retroactively to final judgments under the aegis of section 1170.18. Buycks analogized resentencing pursuant to a section 1170.18 petition for resentencing by the trial court when part of a sentence is stricken on appeal and the case remanded for resentencing. In both instances, the trial court can modify every aspect of resentencing, not just the part of the sentence that was vacated. (See Buycks, supra, 5 Cal.5th at p. 893.) Application of this rule in section 1170.18 resentencing authorized a trial court to “reevaluate the continued applicability of any enhancement based on a prior felony conviction.” (Buycks, at p. 894.)

The effect of reducing an enhancement’s underlying felony to a misdemeanor pursuant to the Act is summed up thusly: “based on established presumptions we apply to measures designed to ameliorate punishment, a successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect. In addition, finality aside, a defendant who successfully petitions for resentencing on a current Proposition 47 eligible conviction may, at the time of resentencing, challenge a felony-based enhancement contained in the same judgment because the prior felony conviction on which it was based has since been reduced to a misdemeanor.” (Buycks, supra, 5 Cal.5th at p. 879.)

The interpretation of subdivision (k) in Buycks applies to the on-bail enhancement and the prior prison term enhancement in section 667.5, subdivision (b): “Proposition 47’s mandate that the resentenced or redesignated offense ‘be considered a misdemeanor for all purposes’ (§ 1170.18, subd. (k)) permits defendants to challenge felony-based section 667.5 and 12022.1 enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors.” (Buycks, supra, 5 Cal.5th at p. 871.) Defendant contends his on-bail enhancement is no longer valid in light of Buycks. He further contends that one of his prison priors is also invalid under Buycks because the felony underlying one of the priors was reduced to a misdemeanor pursuant to section 1170.18[url=#_ftn3][3][/url]

Defendant admitted to the prior prison term and on-bail enhancements before Proposition 47 took effect. An order granting probation and suspending imposition of sentence is an appealable order (§ 1237, subd. (a)), and, if not appealed from, generally becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421). While the enhancements were thus final when the trial court imposed sentence and terminated probation, defendant had not yet been sentenced on them when Proposition 47 went into effect. Since a sentence had not been imposed on the enhancements when Proposition 47 took effect, we conclude subdivision (k) applies to his enhancements under the Supreme Court’s application of Estrada in Buycks. As the felonies underlying both enhancements were reduced to misdemeanors before the trial court imposed sentence on them, the enhancements are no longer valid and must be stricken.

II

In his original brief, defendant contended the trial court should have granted his section 1170.18 petition as to his felony FTA convictions that were based on felonies reduced to misdemeanors pursuant to section 1170.18. His claim is based on the “for all purposes” language of section 1170.18, subdivision (k). He does not raise this contention in his supplemental briefing following the remand from the Supreme Court.

In Buycks, the Supreme Court held that subdivision (k) did not apply to the crime of felony failure to appear while on bail (§ 1320.5) because a felony conviction under the statute is not contingent on the defendant being convicted of the underlying felony offense for which he or she had been released on bail (Buycks, supra, 5 Cal.5th at pp. 891-892). The same reasoning applies here.

As we have observed before, “[t]he criminal conduct proscribed by section 1320, subdivision (b), is grounded in the violation of a contractual agreement between a defendant and the People . . . .” (People v. Jenkins (1983) 146 Cal.App.3d 22, 28.) It is now a specific intent crime (see People v. Wesley (1988) 198 Cal.App.3d 519, 522-524 [discussing statutory history]), and a crime of moral turpitude (see People v. Maestas (2005) 132 Cal.App.4th 1552, 1556-1557), that is complete when the defendant willfully fails to appear “in order to evade the process of the court.” (§ 1320, subds. (a) & (b).)

The severity of a felony FTA is not lessened by the outcome of the underlying charge, because section 1320 applies to persons charged with or convicted of crimes. The “convicted of” language was added to clarify that the statutes applied to persons on-bail postconviction, which had been uncertain before. (See People v. Jimenez (1993) 19 Cal.App.4th 1175, 1177-1181 [resolving issue as to § 1320.5 (the on-bail FTA statute)], followed by Stats. 1996, ch. 354, §§ 2-3, pp. 2452-2453 [amending both §§ 1320 & 1320.5 to encompass postconviction FTA].) The usage of “or” unaccompanied by any indication that what follows is qualified, “indicates an intention to use [or] disjunctively so as to designate alternative or separate categories. [Citations.]” (White v. County of Sacramento (1982) 31 Cal.3d 676, 680.) A defendant is charged with crimes contained in an accusatory pleading, which exists to provide defendant with notice of the charges. (See People v. Fitzgerald (1997) 59 Cal.App.4th 932, 936.) Here, the defendant was charged with a felony each time he promised to appear as directed.

Because FTA is premised on defendant’s breach of contract (People v. Jenkins, supra, 146 Cal.App.3d at p. 28), whether a defendant is convicted of the underlying offense is immaterial to the disposition of the failure to appear charge (cf. People v. Walker, supra, 29 Cal.4th at p. 583 [it is the legislative view that punishment for jumping bail under § 1320.5 is proper regardless of the disposition of the underlying offense]). Applying Buycks, we conclude subdivision (k) does not apply to his FTA conviction.

DISPOSITION

The on-bail (§ 12022.1) and prior prison term (§ 667.5, subd. (b)) enhancements are stricken. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting the modified judgment and send a certified copy to the Department of Corrections and Rehabilitation.

[u] /s/ [/u]

Blease, Acting P. J.

We concur:

[u] /s/ [/u]

Butz, J.

[u] /s/ [/u]

Mauro, J.

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Defendant Cornelius L. Jones appeals from his conviction of attempted premeditated murder, assault with a deadly weapon, and assault likely to produce great bodily injury. He contends (1) the trial court erred by ruling the prosecution did not unconstitutionally excuse the sole potential African-American juror on the basis of race; (2) insufficient evidence supports the jury’s finding he attempted to kill willfully, deliberately, and with premeditation; (3) the court imposed an unauthorized sentence; and (4) the court committed other sentencing and clerical errors.

The California Supreme Court directed us to vacate our earlier opinion in this matter and reconsider the cause in light of Senate Bill No. 1393 (Stats. 2018, ch. 1013) (SB 1393). Thus, defendant also contends (5) we should remand to allow the trial court to exercise its new discretion under SB 1393 to strike two five-year enhancements imposed for a serious felony prior.

Except to remand to correct the sentencing and clerical errors, but not to reconsider the felony prior enhancements, we affirm the judgment.

Facts

Daniel Petty was the bartender and closing manager at a bar in Sacramento. In the late night and early morning hours of August 17 and 18, 2013, Jovan Felix and a female companion came into the bar. Felix ordered a drink, but he did not like how Petty made it. Believing the drink could not be made differently, Petty offered to make a different drink or to pay for the drink he made. Felix wanted Petty to make the same drink over again. Petty asked a coworker, Scott Nguyen, to take care of Felix, and he went outside for a break.

Nguyen attempted to fix the drink for Felix, but Felix did not accept it. Nguyen offered to make a new drink, but Felix refused.

When Petty went outside, he sat with Joleen Esquivel, the bar’s general manager. He told her what had happened. Then Felix came outside and was confrontational towards Petty. Esquivel introduced herself as the manager and asked how they could resolve the matter. Felix said his drink was not made properly and the bartenders would not remake it. At one point, he said, “This is how places get burned down.” He walked away with his companion, still angry.

After closing the bar, Petty, Nguyen, another employee named Angelo Stowers, and disc jockey Aaron Jacobson left the building together. Stowers saw a man walking back and forth suspiciously. He followed the man around the corner and saw him speak with Felix. Stowers turned around immediately and told the coworkers they needed to “leave ASAP.”

Nguyen saw the two men and heard one of them asked the other, “Are these the guys?” The other said, “Yes.” The coworkers began to walk away when one of the men, defendant, hit Nguyen in the head from behind. Both men went to the ground. Stowers pulled defendant off of Nguyen and slammed or dropped him on the ground. Jacobson kicked defendant near his head. Defendant stood up and brandished a knife.

Stowers ran across the street. Defendant chased him and said he would get him. As Stowers reached the curb, he tripped. He caught himself against a wall and stayed on his feet. He turned around, and defendant was almost on top of him with the knife. He grabbed defendant’s wrist that held the knife as defendant tried to stab him. Stowers began to fall and defendant stabbed him in the abdomen. Stowers pulled out a knife from his back pocket and slashed defendant across the face.

Petty, from about 36 feet away, saw the man who was chasing Stowers push Stowers in the back, causing him to trip over the curb. Stowers hit the ground. The man jumped on top of him, but Stowers got to his feet. Stowers said, “Hey, stop trying to stab me.” The man attacking Stowers made multiple stabbing motions with a knife in his hand. Stowers made a move with his hand and the man let out a pained growl. He held his cheek and ran away. The man and Felix met in the middle of the street and took off running together.

Petty, Nguyen, and Jacobson went to Stowers’s aid. Jacobson called 911 and reported that defendant and Felix drove off in a dark-colored GMC SUV. Nguyen discovered his tires had been slashed. Stowers underwent surgery for internal bleeding, during which he lost his pulse for about 45 seconds and was revived with CPR and medication. The surgery was successful, and the wound required several dozen staples.

Police located a gray GMC Yukon parked in front of defendant’s residence. Jacobson identified defendant in a photo lineup, but Stowers could not.

At some point after a police interview, defendant admitted he was at the scene of the crime.

The parties stipulated that a criminalist obtained a DNA sample from blood on the tip of Stowers’s knife, and the DNA matched with defendant’s DNA.

The parties also stipulated that a blood sample taken from Stowers at the hospital revealed a blood-alcohol level of approximately 0.14 percent, and a male weighing 232 pounds with a known alcohol concentration of 0.14 percent would have approximately eight to nine drink equivalents in his system at the time the sample was taken. A drink equivalent is one 12-ounce beer, one standard glass of wine, or one ounce of 80-proof alcohol.

Called by the defense, Stowers stated that after work the night of the stabbing, he had a complimentary drink while he and the others closed the bar. The drink was Wild Turkey 101, which was 101-proof alcohol, or 50.5 percent. The drink filled one-third of an eight-ounce glass. Stowers denied he was drunk that night.

Verdict and Sentence

A jury found defendant guilty of attempted murder which he committed willfully, deliberately, and with premeditation, assault with a deadly weapon, and assault by means of force likely to produce great bodily injury. (Pen. Code, §§ 664/187, subd. (a), 245, subd. (a)(1), (4); statutory section references that follow are to the Penal Code unless otherwise stated.) It also found true allegations that defendant personally inflicted great bodily injury in the attempted murder and the assault with a deadly weapon, and he personally used a dangerous and deadly weapon in the attempted murder. (§§ 12022.7, subd. (a), 12022, subd. (b)(1).)

In a bifurcated proceeding, defendant admitted a prior conviction for attempted voluntary manslaughter, and the trial court determined the conviction qualified as a serious felony and a prior strike. (§§ 667, subds. (a), (b)-(i), 1192.7, subd. (c), 1170.12.)

The court sentenced defendant to state prison for a term of 22 years plus a consecutive 14 years to life, calculated as follows: on the attempted murder, seven years to life, doubled for the prior strike, plus one year for the personal use enhancement, three years for the great bodily injury enhancement, and five years for the serious felony prior; and the upper term of four years on the assault with force likely to produce great bodily injury, doubled for the prior strike, plus five years for the serious felony prior. The court imposed and stayed sentence on the assault with a deadly weapon conviction pursuant to section 654.

Discussion

I

Batson/Wheeler Motion

The prosecutor used a peremptory challenge to excuse the only African-American member of the jury venire. Defendant, who is African-American, challenged the prosecutor’s action under Batson/Wheeler. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 96]; People v. Wheeler (1978) 22 Cal.3d 258.) The trial court denied the motion, finding the prosecutor did not excuse the prospective juror based on her race.

Defendant contends the trial court erred. He claims the prosecutor’s reasons for removing the prospective juror were pretextual and based on erroneous facts, and she did not excuse non-African-American panelists who had similar characteristics. Defendant also claims the court did not make a sincere and reasoned evaluation of the prosecutor’s reasons for striking the juror.

A. Background

In response to voir dire from the trial court, prospective juror Ms. F. stated she worked for the Department of Corrections and Rehabilitation as a senior personnel specialist in the employee benefits unit. Prior to working for the Department of Corrections and Rehabilitation, Ms. F. worked for the Franchise Tax Board doing payroll.

When the court questioned her about her son, the following colloquy ensued:

“Q. . . . And then your son is an IT specialist?

“A. Yes. He works for Man Tech, and he has been with them for about maybe three and a half years, and that’s a federally funded program.

“Q. And so he has always enjoyed all the computer type work?

“A. Yes. I love it that he has to do that cause then he can help me with my computer.

“Q. Does he help you with the computer?

“A. Yes, uh huh.

“Q. That’s a good son?

“A. Yeah, he is. We’ve come a long way though.

“Q. Come a long ways?

“A. Yes.

“Q. Let’s talk about the long ways that he’s come. [¶] What’s been going on?

“A. Well, it took him a while to stay focus [sic] in school. I liked him to stay more focused in school, and so instead, he would listen to his friends and not to me. And my mother said, you know, you keep talking to him, and I could tell by the eye contact, you are in his way. So I didn’t pay attention to that, I just stayed on and stayed on him. And he finally went back to school and finished, and now he’s an IT specialist.

“Q. Which is a terrific story. Did he ever have any brushes with the law at all, or just that he was more just not focused with school, and—

“A. Not focused with school and getting tickets and driving without insurance, and parking in handicap spots, and stuff like that.

“Q. So he got a talking to from time to time from Mom?

“A. Yes.”

Ms. F. stated she had been a juror on two previous cases. The first case involved a civil lawsuit. The second was for child endangerment, and the jury reached a verdict in that case. The following exchange then occurred regarding a domestic abuse matter:

“A. Back in ’74, ’75—1974, 1975, my brother-in-law, not my brother-in-law anymore, he, I guess, got into an argument at the apartment with my sister. My parents woke me up and said, [daughter], go over there and find out what’s going on, and so I did. And before I made it there before the police, he was trying to throw my niece into the pool. And at that time, she was a newborn, and now she is 38.

“Q. Isn’t that something?

“A. Yes.

“Q. And you were 17 or 18, if I recall?

“A. Yes.

“Q. And did you then sort of help come to the rescue on all that?

“A. I tried to assist with the apartment manager, but the police were able to take over from that point. And then they only arrested him for that night, and then he was released the next morning.

“Q. Is that right?

“A. He just didn’t think.

“Q. He is no longer your brother-in-law?

“A. No, he’s no longer.”

The prosecutor used a peremptory challenge to excuse Ms. F.

Defense counsel objected under Batson/Wheeler. Counsel argued, “We believe Ms. [F.] was the only prospective African[-]American juror that was available to either side, and we believe that that falls within the parameters of Batson and Wheeler. [¶] We would also point out that I believe for—there were [sic] certainly no cause to let Ms. [F.] go as both sides had stipulated to her being at least considered. And we believe that my client being of African[-]American descent now falls squarely within the parameters of Batson and Wheeler.”

The trial court confirmed Ms. F. was the only African-American member of the venire, and it found defendant had established a prima facie case that the prosecutor dismissed her due to group bias. Asked to explain her reasons for dismissing Ms. F., the prosecutor stated: “Three main factors. The first one of which she has a son who is the exact same age, one year apart from the defendant in this case, which obviously poses a concern for any type of bias or sympathy that could be on her part for the defendant throughout this trial.

“The second is that she had an incident in her background that involved her sister having domestic violence. In that case I think the Court had inquired with her [sic] she had gone up and sort of stepped in there, addressed the situation. Her response was that she went and got a manager—an apartment manager, I think is who it was, to come and help her with the situation.

“I had been questioning about self-defense, and I was curious to see what her response would be to that. If it would had [sic] been, which the People would have more—would have wanted that answer if she had gone in and stopped the scenario, and then call 911, or done something more in that regard.

“The third is looking at the—just the different personality traits on the jury as a whole and wanting to have someone, who is going to be of a different balance, if you will, between the leaders in the group as well as the individuals who are going to be more of each shee[p], if you will, in the group. And the goal would be to have more who were not going to be quite as—would take more of a leadership role essentially.

“So, the three main factors. I agree everything [sic] else that she was a good candidate. There were several things I liked about her, but the main thing would be that she has a son who is the exact same age, a year apart from the defendant.”

The trial court concluded a Batson/Wheeler violation had not occurred. It stated, “Well, I certainly don’t make no [sic] credibility determination to think that [the prosecutor] was using a revert [sic] racial motivation in her exercising a peremptory challenge. I think that we have a record here that would be ultimately reviewed. I don’t think that we have a Batson-Wheeler violation such that—we don’t have one, so I’m not going to begin anew the process of—that we are underway presently.”

After the lunch recess, the prosecutor asked to augment the record with another reason why she excused Ms. F. She stated, “Part of my thought process and in exercising a challenge against Ms. [F.] was regarding her statement of her own son having his own obstacles. I think it’s the way she had put it was it wasn’t a criminal history, but when the Court inquired she said that her son had had, I believe, a long way to go before he got to where he is today as an IT specialist. He had tickets, and I think she said he had been driving without a license, but for her being able to stand in and essentially get him on track, she had a little bit of difficulty with him. And part of that—that was part of the concern that the People have about keeping Ms. [F.] on in light of these struggles she had with her son, and that’s part of the fear I had about her thinking of her background with the son and having sympathy for the defendant, so I just wanted to augment the record, and thank you for letting me do that.”

B. Analysis

“The ‘Constitution forbids striking even a single prospective juror for a discriminatory purpose.’ Snyder v. Louisiana, 552 U.S. 472, 478 [170 L.Ed.2d 175] (2008) (internal quotation marks omitted). [The Supreme Court’s] decision in Batson v. Kentucky[, supra, 476 U.S. 79], provides a three-step process for determining when a strike is discriminatory:

“ ‘First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.’ (Snyder[, supra, 552 U.S. at pp. 476-477] (internal quotation marks and brackets omitted).” (Foster v. Chatman (2016) __ U.S. __ [195 L.Ed.2d 1, 12].)

Where the court finds a prima facie case has been made, as the trial court did here, “the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone. The showing need not rise to the level of a challenge for cause. But to sustain his burden of justification, the allegedly offending party must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses.” (People v. Wheeler, supra, 22 Cal.3d. at pp. 281-282, fn. omitted.)

“ ‘The second step of this process does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” [Citation.]’ (Purkett [v. Elem (1995) 514 U.S. 765,] 767-768 [131 L.Ed.2d 834].)” (People v. Reynoso (2003) 31 Cal.4th 903, 916.)

“The prosecutor’s ‘ “justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice.” [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.’ (People v. Lenix [(2008)] 44 Cal.4th [602,] 613.) ‘The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. . . . All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.’ (People v. Reynoso[, supra,] 31 Cal.4th [at p.] 924.)” (People v. O’Malley (2016) 62 Cal.4th 944, 975, original italics.)

“ ‘ “Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’ ” ’ [Citation.] ‘When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings.’ [Citation.]” (People v. Hensley (2014) 59 Cal.4th 788, 802-803.)

Substantial evidence supports the trial court’s denial of defendant’s Batson/Wheeler motion. It shows the prosecutor excused Ms. F. for genuine reasons unrelated to race. She feared Ms. F. would be sympathetic to defendant because defendant was similar in age to her son and her son had gone through a stage of committing anti-social behavior but, by her “staying” on him, had become a good son with a good career. The prosecutor also wanted more jurors who would take a leadership role, and she did not believe Ms. F. had that personality trait. These reasons are inherently plausible and are supported by the record.

Defendant claims the prosecutor’s stated reasons are blatantly discriminatory. He relies on comparative juror analysis to make his argument. Fear of Ms. F.’s sympathy was discriminatory, defendant argues, “because it shows the prosecutor believed an African-American parent of a young adult African-American male would view [defendant]—a young adult African-American male—through a biased lens, whereas no such concerns were expressed with regard to non African-American parents of non African-American young adult males.” Besides Ms. F., two of the seated jurors had young adult sons (both aged 24), but the prosecutor did not question them about any difficulties they may have had with their sons or express concern that these jurors might be sympathetic towards defendant. The reason for this different treatment, defendant asserts, “can only be attributed to race.”

We disagree. “ ‘[I]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.’ [Citation.]” (Foster v. Chatman, supra, ___ U.S. at p. ___ [195 L.Ed.2d at p. 20].) However, “comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination.” (People v. Lenix, supra, 44 Cal.4th at p. 622.) “We recognize that a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable.” (Snyder v. Louisiana, supra, 552 U.S. at p. 483, italics added.)

Here, the alleged similarities between Ms. F. and the other jurors were not raised at trial. Upon the court commenting that Ms. F.’s son was a good son, Ms. F., without prompting from the court, volunteered, “We’ve come a long way though.” The court reasonably inquired as to what she meant. The other jurors with children of approximately defendant’s age, Juror Nos. 10 and 12, did not volunteer any such information when the court asked about their children. Juror No. 10 had two children ages 21 and 24. The younger daughter was a student at St. Mary’s, and the older son was a graduate of the University of Southern California and worked as a media associate in Los Angeles. Juror No. 10 said nothing about difficulties with the children when they were growing up.

Juror No. 12 had a 24-year-old son who was working at Panera. The son lost his warehouse job and was looking for another one. It appeared to the court the son liked to be out doing things and did not want a desk job. The juror agreed. Like Juror No. 10, Juror No. 12 said nothing about having any difficulties with the son growing up.

Because no evidence at trial showed Juror Nos. 10 and 12’s sons had any similar type of difficulties as Ms. F.’s son, there is no evidence before us on which we could conclude the three jurors were truly comparable. “ ‘It should be apparent, therefore, that the very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror which on paper appears to be substantially similar . . . . It is therefore with good reason that we and the United States Supreme Court give great deference to the trial court’s determination that the use of peremptory challenges was not for an improper or class bias purpose.’ [Citation.]” (People v. Reynoso, supra, 31 Cal.4th at p. 919.)

Defendant also faults the prosecutor for relying on incorrect facts. The prosecutor stated defendant was the same age or one year apart from Ms. F.’s son, and that Ms. F.’s son had driven without a license. In fact, defendant at the time of trial was 36 years old; Ms. F.’s son was 29. Also, Ms. F. did not say her son drove without a license. She said he drove without insurance.

These misstatements, however, do not establish the prosecutor excused Ms. F. because of her race. The prosecutor was concerned about the sympathy Ms. F. would have towards defendant. The factual inaccuracies do not alter the prosecutor’s thought process. Under either scenario, she could genuinely be concerned about Ms. F.’s sympathy due to having a son of comparable age who made some mistakes growing up but became a productive citizen. We cannot infer from these facts the prosecutor dismissed Ms. F. due to her race.

Defendant argues the prosecutor’s other arguments were pretextual. He claims the argument based on Ms. F.’s trying to assist the apartment manager instead of personally taking action when her uncle threatened to throw a newborn into a pool was reasonable given her age at the time. And Ms. F.’s purported lack of a leadership personality “is the sort of implausible or fantastical justification that rises to the level of pretext for purposeful discrimination.”

Lacking traits for leadership or taking incentive is a type of hunch or idiosyncratic reason that the courts recognize as legitimate grounds for exercising a peremptory strike. “[P]eremptory challenges are not challenges for cause—they are peremptory. We have said that such challenges may be made on an ‘apparently trivial’ or ‘highly speculative’ basis. (People v. Wheeler, supra, 22 Cal.3d at p. 275.) Indeed, they may be made ‘ “ without reason or for no reason, arbitrarily and capriciously” ’ (People v. Williams (1997) 16 Cal.4th 635, 663).” (People v. Jones (1998) 17 Cal.4th 279, 294, original italics.) Lack of leadership or initiative is certainly not an implausible or fantastical justification for exercising a peremptory challenge.

Defendant also contends the trial court did not fulfill its duty. He asserts the court failed to make a sincere and reasonable attempt to evaluate the prosecutor’s explanations and to express its findings. It only concluded summarily that the prosecutor’s reasons were credible and not racially motivated. As a result, he argues, we need not defer to its ruling.

We disagree. “[W]hen ruling on a Wheeler motion, the trial court ‘must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .” [Citation.]’ [Citation.] But in fulfilling that obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutor’s race-neutral reason for exercising a peremptory challenge is based on the prospective juror’s demeanor, or similar intangible factors, while in the courtroom.” (People v. Reynoso, supra, 31 Cal.4th at p. 919.)

The record shows the court made a sufficient attempt to evaluate the prosecutor’s reasons for excusing Ms. F. and to express its findings. It was not required to make a detailed statement because the prosecutor’s reasoning was plausible and supported by the record. This is especially so where the prosecutor excused the juror for an intangible factor such as a personality trait of lacking leadership. The court heard the prosecutor’s reasons and found them to be genuine. It was thus not required to express its findings in the detailed manner sought by defendant.

We uphold the trial court’s denial of defendant’s Batson/Wheeler motion.

II

Sufficiency of the Evidence

Defendant contends insufficient evidence supports the jury’s finding that he attempted to kill Stowers willfully, deliberately, and with premeditation. He asserts the only reasonable inference to be drawn from the evidence is that he made an immediate and spontaneous decision to chase Stowers after Stowers pulled him off of Nguyen.

“In assessing the sufficiency of the evidence supporting a jury’s finding of premeditated and deliberate murder [or attempted murder], a reviewing court considers the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Burney (2009) 47 Cal.4th 203, 253; People v. Perez (1992) 2 Cal.4th 1117, 1124.) When the circumstances reasonably justify the jury’s findings, a reviewing court’s opinion that the circumstances might also be reasonably reconciled with contrary findings does not warrant reversal of the judgment. (Burney, at p. 253; Perez, at p. 1124.)

“ ‘ “A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “ ‘Premeditation and deliberation can occur in a brief interval. “The test is not time, but reflection. ‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’ ” ’ [Citation.]” [Citations.]’ (People v. Solomon (2010) 49 Cal.4th 792, 812.)

“In People v. Anderson (1968) 70 Cal.2d 15, we [the Supreme Court] identified three types of evidence—evidence of planning activity, preexisting motive, and manner of killing—that assist in reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. (People v. Solomon, supra, 49 Cal.4th at p. 812.) We have made clear, however, that ‘ “Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation.” [Citations.]’ [Citation.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1068-1069.)

Applying the Anderson factors, we conclude sufficient evidence supports the jury’s finding that defendant attempted to kill Stowers willfully, deliberately, and with premeditation. Upon seeing the group of coworkers, defendant asked Felix, “Are those the guys?” After Felix confirmed they were, defendant attacked Nguyen by hitting him in the head. Stowers and Jacobson got defendant off of Nguyen by taking him to the ground and kicking him. Then, when defendant stood up, he did not retreat or stop his pursuit. Instead, he brandished a knife, chased Stowers across the street, pushed him down from behind, came upon him against a wall, and tried to stab him repeatedly. Stowers told defendant to stop trying to stab him, and he held onto defendant’s wrist to prevent being stabbed. Despite these efforts, defendant stabbed Stowers in the torso.

This evidence supports the jury’s finding. It shows defendant planned for the attack. He brought a knife to the scene and intentionally hit Nguyen after Felix confirmed the coworkers’ identities. He also chased Stowers when the latter was retreating. The evidence also shows defendant had a motive to attack Stowers. He wanted to attack the men based on Felix’s experience at the bar, and he wanted to avenge Stowers’s ending the attack on Nguyen and throwing defendant to the ground. And the manner in which defendant attempted to kill Stowers shows he sought to kill deliberately and with premeditation. He chased Stowers across the street, pushed him down, and repeatedly attempted to stab him before he succeeded. During this sequence of events, defendant had sufficient time to premeditate and deliberate what he would do. Stowers even restrained him for a moment in which he could have stopped the attack, but he did not stop. The evidence is sufficient to support the jury’s finding.

III

Modification of Judgment

Defendant contends the trial court imposed an unauthorized sentence on his attempted murder conviction. The court imposed a prison term of seven years to life, doubled to 14 years due to a strike prior, as required by section 3046 and the “Three Strikes” law (§ 667, subds. (b)-(i)). Defendant contends the correct sentence under section 664, subdivision (a) “is life with the possibility of parole, not seven (or 14) years to life. . . . [T]he correct sentence is life with a minimum parole eligibility term of 14 years, not 14 years to life.” He asks us to modify the sentence accordingly. We conclude the trial court did not err.

The Supreme Court has rejected defendant’s argument in light of the Three Strikes law and the determinate sentencing law (§ 1170): “A statute requiring a prisoner to serve a specified term of incarceration before being released on parole is a provision requiring service of a ‘minimum term’ within the sentence-doubling language of section 667[, subdivision] (e)(1). As we have pointed out, under the current sentencing scheme the parole release date marks the end of the prison term. Because section 3046 requires that a defendant sentenced to life imprisonment with the possibility of parole serve ‘at least seven calendar years or . . . a term as established pursuant to any other section of law that establishes a [greater] minimum period of confinement’ before becoming eligible for parole, it sets forth a ‘minimum term’ within the meaning of section 667[, subdivision] (e)(1), which provides that for a defendant with a prior strike the ‘minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony provision.’

“Defendants insist that the sentence for attempted premeditated murder does not have a minimum term, because section 664, the relevant penalty provision, does not mention service of any minimum term, stating only that the punishment is ‘imprisonment in the state prison for life with the possibility of parole.’ But as we have explained, the minimum term for a defendant found guilty of attempted premeditated murder is found not in section 664 but in section 3046. The parole ineligibility period set by section 3046 is a minimum term within the sentence-doubling language of section 667[, subdivision] (e)(1).” (People v. Jefferson (1999) 21 Cal.4th 86, 96, original italics.)

Defendant correctly notes a straight life term is an indeterminate term (People v. Felix (2000) 22 Cal.4th 651, 659), but, as the Jefferson court held, the legislative addition of a minimum term does not change the character of the indeterminate term to something other than an indeterminate term, as that term is now used in California sentencing. Under Jefferson, the trial court correctly sentenced defendant to a prison term of 14 years to life for the attempted premeditated murder.

IV

Sentencing and Clerical Errors

Defendant raises three errors regarding his conviction and sentence for assaulting Nguyen by means of force likely to produce great bodily injury (count three). Each requires correction, and we will direct the trial court to make those corrections.

First, in its minute order, the trial court noted the jury found true the personal use of a dangerous weapon enhancement alleged as to defendant’s assault on Nguyen. The jury actually found the alleged enhancement not true. We have inherent power to direct the trial court to correct this error. (In re Candelario (1970) 3 Cal.3d 702, 705.)

Second, because the jury found the dangerous weapon enhancement not true, the assault against Nguyen no longer qualified as a “serious felony” for purposes of imposing a five-year enhancement under section 667, subdivision (a). (People v. Haykel (2002) 96 Cal.App.4th 146, 151; § 245, subd. (a)(4).) Nonetheless, the trial court imposed the enhancement. We order it stricken.

Third, the abstract of judgment describes count three as “Assault w/deadly weapon not firearm.” Obviously, that is an incorrect description, as the jury, by rejecting the personal use weapon enhancement, found him guilty of assaulting Nguyen by means likely to produce great bodily injury, as charged in the information, not with a deadly weapon. We direct the court to amend the abstract.

V

SB 1393

Prior to 2019, trial courts had no authority to strike a serious felony prior that is used to impose a five-year enhancement under section 667, subdivision (a)(1). SB 1393 removed this prohibition. (Stats. 2018, ch. 1013, §§ 1, 2.) The legislation became effective January 1, 2019. (Cal. Const., art. IV, § 8, subd. (c).)

Defendant contends SB 1393 applies to him because the statute is retroactive and applies to all cases not yet final as of its effective date, such as this case. He asks us to remand so the trial court may exercise its new discretion and consider striking the felony prior used to impose the five-year enhancement on count one, his conviction for attempted murder.

The Attorney General agrees SB 1393 is retroactive, but he argues we should not remand because the trial court’s statements on the record clearly indicate it would not in any event have stricken the prior when it originally sentenced defendant. We agree with the Attorney General.

Absent evidence to the contrary, amendments to statutes that reduce the punishment for a crime or vest in trial courts the discretion to impose a lesser penalty, such as SB 1393, apply to all defendants whose judgments are not final as of the amendment’s effective date. (In re Estrada (1965) 63 Cal.2d 740, 742; People v. Garcia (2018) 28 Cal.App.5th 961, 972.) When it enacted SB 1393, the Legislature did not indicate it intended the legislation to apply prospectively only. (Ibid.) The act thus applies retroactively to this case.

That finding is not the end of the matter. We are not required to remand to allow the court to exercise its discretion if “the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement” even if it had the discretion. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)

The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court’s statements and sentencing decisions to infer what its intent would have been. (See People v. McVey (2018) 24 Cal.App.5th 405, 419 [no remand where, “[i]n light of the trial court’s express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether”]; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [case not remanded for resentencing even though court did not expressly state it would not have stricken a strike prior but indicated in statements and rulings that it would not exercise any discretion to reduce the sentence, regardless of the particular enhancement at issue].)

Reviewing the evidence in the record, we conclude there is no possibility the trial court would strike the enhancement were we to remand. At sentencing, the court first denied defendant’s motion for new trial. Independently reviewing the evidence, the court felt “very comfortable denying the motion for new trial [and] very comfortable with the verdict . . . including that the defendant had adequate time to premeditate the attempted murder of Mr. Stowers.” The evidence showed defendant “was doing his reconnaissance and essentially laying [sic] in wait . . . .”

Defendant’s behavior after Stowers threw him down was “rage, and he did not like what Mr. Stowers had done unto him and was going to make that clear under whatever circumstances that might be including, incredibly, chasing him out into oncoming traffic on J Street that night, dodging in and out of cars . . . and then not giving up . . . .” There was no question that after cornering Stowers, defendant stabbed him.

The court found defendant had “ample opportunities . . . to reflect on how far was he going to take this when it came to Mr. Stowers. Well, you take it all the way. Incredibly. Senselessly. [¶] This whole case just shows the absurdity of what’s deemed to be at times acceptable societal behavior over something as ridiculous as to the caliber of a Long Island Iced Tea drink. That’s what brought us here today.”

During sentencing, the prosecutor explained the facts of the felony prior. Defendant was convicted of attempted manslaughter for stabbing his ex-wife numerous times. Defendant served 10 years in prison for that conviction and had been released only for a few months when he stabbed Stowers. Defendant did not know any of the individuals at the bar before he attacked.

Upon sentencing defendant, the court stated, “I’ve already, I guess, sort of spoken my sense of this case in my ruling on the new trial motion. This gives me obviously, as you know, great satisfaction in imposing the very lengthy sentence here today.” The court noted that, notwithstanding defendant’s genial conduct during court proceedings, his actions had displayed a “temper” that was “oftentimes triggered by drinking,” along with “a [penchant] to use knives, apparently.” The court stated defendant had “earned the sentence here today.”

The court imposed a prison term of 14 years to life, plus a consecutive 22 years. On the conviction for assault likely to produce great bodily injury, the court imposed the upper term of four years, doubled for the prior strike. The court explained there was “no shortage” of aggravating factors that supported the upper term, but one factor “certainly to include [was] this case did involve planning and sophistication and there was violent conduct involved and the Defendant . . . has served a prior prison term.”

The assault count was the only count on which the court could have exercised leniency in sentencing, but it did not. It could have imposed terms of two, three, or four years. (§ 245, subd. (a)(4).) Yet, despite having already imposed a term of life with parole, the court imposed the upper term, knowing that when doubled, the term would add two additional years to defendant’s sentence over what he would have served had the court imposed the mid term.

From this evidence, we conclude the trial court would not have dismissed defendant’s prior serious felony even if it had discretion to do so. (See People v. McDaniels, supra, 22 Cal.App.5th at p. 425; accord, People v. McVey, supra, 24 Cal.App.5th at p. 419.)

Defendant contends we cannot know how the trial court would exercise its discretion on remand because trial counsel had no basis to argue in favor of striking the felony prior. He cites People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111, where the court stated, “[S]peculation about what a trial court might do on remand is not ‘clearly indicated’ by considering only the original sentence.”

Our review of the record, however, goes beyond the original sentence. Besides not exercising its discretion for leniency when it could have, the trial court made clear its intention to impose the most stringent sentence it could justifiably impose. It stated there was no doubt the verdict was correct, defendant’s actions were premeditated, dangerous, senseless and absurd, he attempted to kill Stowers only a few months after being released from prison where he had been for 10 years, and the court took “great satisfaction” in imposing the “very lengthy sentence” it imposed. Under these circumstances, we are confident the court would not strike the felony prior and its resulting enhancement out of leniency toward defendant. We will not remand the matter for resentencing on the enhancement imposed under section 667, subdivision (a)(1), on count one, the attempted murder conviction.

Disposition

We remand the matter to direct the trial court to take only the following actions: (1) correct its minute order of November 20, 2014, to state the jury found the personal use of a dangerous weapon allegation as to count three to be not true; (2) strike the five-year prior serious felony enhancement imposed on count three under section 667, subdivision (a); (3) amend the abstract of judgment to describe count three as “assault likely to produce great bodily injury” and to state defendant’s corrected sentence; and (4) forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

[u] HULL [/u], Acting P. J.

We concur:

[u] BUTZ [/u], J.

[u] MAURO [/u], J.