35 Cal. App. 5th 200
Cal. Ct. App. 5th2019Background
- Defendant Richard Zamora was convicted by jury of attempted murder, assault with a deadly weapon, robbery, criminal threats, and two counts of being a felon in possession of a firearm; jury found multiple firearm-use and great-bodily-injury enhancements true.
- In a bifurcated proceeding the court found three prior serious-felony convictions under Penal Code § 667(a); the court imposed three consecutive five-year enhancements (one later determined to be improper because two 2004 convictions were tried together).
- Facts: earlier daytime confrontation in which Zamora threatened Phillip and took his phone; later that night Zamora struck Phillip with a gun at the door, a shot entered Phillip's thigh through the door; shell casing and a .40-caliber gun were recovered from Zamora when arrested, and Phillip later identified Zamora as shooter.
- At sentencing (2017) enhancements for firearm use and prior serious felonies were mandatory; Zamora received an aggregate term including a 25-to-life enhancement for personally discharging a firearm causing great bodily injury plus multiple five-year prior-serious-felony terms.
- After sentencing, the Legislature enacted: Senate Bill No. 620 (Jan. 1, 2018) — gave courts discretion to strike firearm enhancements (§ 12022.5, § 12022.53); and Senate Bill No. 1393 (Jan. 1, 2019) — gave courts discretion to strike prior serious-felony enhancements (§ 667, § 1385).
- Zamora appealed claiming insufficient intent for attempted murder and requesting remand so trial court could exercise discretion under SB 620 and SB 1393; the People conceded errors regarding the prior-felony enhancement and retroactivity issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of intent for attempted murder | People argue evidence supports specific intent to kill based on threats, gun use, and wound | Zamora argues evidence insufficient to show specific intent to kill | Conviction for attempted murder affirmed — court found intent supported by evidence |
| Improper double-counting of 2004 priors | People initially accepted sentence but concede trial court erred imposing two 5‑year terms for offenses tried together | Zamora urges correction | One of the five‑year enhancements for the 2004 convictions stricken |
| Retroactivity of SB 620 (discretion to strike firearm enhancements) | People concede and court reasons SB 620 reduces punishment/discretion and thus applies to nonfinal cases | Zamora seeks benefit for his nonfinal sentence | SB 620 applies retroactively to cases not final when effective; remand for sentencing court to decide whether to strike firearm enhancements |
| Retroactivity of SB 1393 (discretion to strike serious‑felony enhancements) | People agree SB 1393 likewise reduces punishment and should apply to nonfinal cases | Zamora requests resentencing in light of SB 1393 | SB 1393 applies retroactively to nonfinal cases; remand for trial court to consider striking/dismissing remaining serious‑felony enhancements |
Key Cases Cited
- In re Estrada, 63 Cal.2d 740 (presumption that ameliorative criminal statutes apply to nonfinal cases)
- People v. Brown, 54 Cal.4th 314 (presumption of prospectivity unless amendment reduces punishment)
- People v. Superior Court (Lara), 4 Cal.5th 299 (application of Estrada to legislative reductions in punishment)
- People v. Chavez, 22 Cal.App.5th 663 (concluding SB 620 applies to nonfinal cases)
- People v. Arredondo, 21 Cal.App.5th 493 (same as to SB 620; interprets statutory language extending resentencing relief)
- People v. Vela, 21 Cal.App.5th 1099 (SB 620 retroactivity analysis)
- People v. Woods, 19 Cal.App.5th 1080 (SB 620 retroactivity analysis)
- People v. Francis, 71 Cal.2d 66 (applying Estrada where amendment allowed courts to impose lesser penalties)
- People v. Garcia, 28 Cal.App.5th 961 (holding SB 1393 applies to nonfinal cases)
- In re Harris, 49 Cal.3d 131 (interpretation of "brought and tried separately" for prior enhancement eligibility)