P. v. Harris

Filed 8/20/18 P. v. Harris CA2/3
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ALONZO HARRIS et al.,
Defendants and Appellants.
B257675
(Los Angeles County
Super. Ct. No. BA343411)
APPEAL from judgments of the Superior Court of Los
Angeles County, Stephen Marcus, Judge. Harris’s appeal is
dismissed and all proceedings as to him are ordered permanently
abated. Nelson’s judgment of conviction is modified and, as so
modified, affirmed; sentence vacated and remanded for
resentencing.
John A. Colucci, under appointment by the Court of Appeal,
for Defendant and Appellant Alonzo Harris.

-- 1 of 22 --

2
Law Offices of Allen G. Weinberg and Derek K. Kowata,
under appointment by the Court of Appeal, for Defendant and
Appellant Floyd Nelson.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Margaret E. Maxwell and William H. Shin,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendants and appellants, Alonzo Harris and Floyd
Nelson, appealed their convictions for charges arising out of a
series of robberies, attempted robberies and associated crimes.
In an unpublished opinion filed on August 29, 2017, we affirmed
the judgment as to Harris. As to Nelson, we modified the
judgment, affirmed it as modified, and remanded to the trial
court for resentencing.
Harris and Nelson petitioned for review of our decision.
Among other things, they argued they were entitled to the benefit
of newly enacted Senate Bill 620, which became effective on
January 1, 2018, and gives trial courts discretion to strike certain
firearm enhancements in the interest of justice. Our Supreme
Court granted appellants’ petitions for review and transferred
the matter back to this court with directions to vacate our
decision and reconsider the cause in light of Senate Bill 620.
In accordance with that order, we vacated our August 29,
2017 opinion and reconsidered the matter in light of Senate Bill
620. We concluded, as to Nelson, that on remand the trial court
had discretion to consider striking the firearm enhancements. As
to Harris, we concluded remand was not required because the
record made clear the court would not have exercised its
discretion to strike the firearm enhancements imposed upon

-- 2 of 22 --

3
Harris even had it possessed such discretion at the time of
sentencing. On April 10, 2018, Harris petitioned for rehearing,
arguing we should allow him to file supplemental briefing on the
question of whether remand for resentencing would be futile in
his case. On April 11, 2018, we granted Harris’s rehearing
petition. Harris and the People subsequently filed supplemental
briefs.
On July 3, 2018, counsel for Harris notified this court that
Harris died on or about May 29, 2018. Counsel has therefore
moved to abate proceedings and dismiss Harris’s appeal.
We order proceedings permanently abated, and the appeal
dismissed, as to Harris. As to Nelson, in accordance with the
Supreme Court’s order, we vacate our August 29, 2017 opinion
and reconsider the matter in light of Senate Bill 620. Our
decision regarding Nelson’s previously raised claims of error
remains the same. On remand, however, the trial court has
discretion to consider striking the firearm enhancements imposed
on Nelson.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
Viewed in accordance with the usual rules of appellate
review (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303–
1304), the evidence established the following.
a. Harris’s crimes between October 2007 and May
2008
Between October 7, 2007, and December 31, 2007, Harris,
with his accomplice Glenn Boldware, committed a series of
robberies or attempted robberies and associated crimes at nine
Los Angeles area stores, namely Anawalt Lumber, Big Lots, two
99 Cents Only Stores, Whole Foods, two Trader Joe’s stores,

-- 3 of 22 --

4
Smart and Final, and Washington Square Market. On January
4, 2008, Boldware was shot and killed by Los Angeles police
officers. Thereafter, between May 10, 2008 and May 29, 2008,
Harris committed additional robberies or attempted robberies
and associated crimes at three other locations: a Goodyear Tire
store, the Lodge Steakhouse, and Best Buy Market.
b. The investigation
Detective Tracey Benjamin began investigating the
commercial robberies, which had been nicknamed the “The
Morning Masked Bandits” case, in November 2007. From video
surveillance footage and information provided by one of the
victims, Benjamin linked Boldware’s Dodge Magnum to the
offenses. A search of the car revealed a variety of items that
appeared to be connected to the crimes, including a stocking cap,
a knit cap, cotton gloves, latex gloves, a nylon stocking tied in a
knot, a beanie with eyeholes cut out, and several varieties of
rope. Blue rope with a yellow design appeared identical to that
used by the perpetrators in the Washington Square Market
offenses. Other pieces of rope appeared identical to that used in
the Trader Joe’s offenses. A search of Boldware’s house,
pursuant to a warrant, revealed more rope. Analysis of
Boldware’s cellular telephone data led to the identification of
Harris as a suspect.
Beginning in May 2008, a team of detectives began a 27-
day surveillance of Harris. On 12 of those days, Harris spent
time with Nelson, visiting over 60 different businesses. Nelson
and Harris appeared to be casing the businesses, rather than
shopping. For instance, on June 1, 2008, Harris picked up
Nelson at about 9:15 p.m. and drove to a CVS Pharmacy in Los
Angeles, where the men remained parked for a few minutes

-- 4 of 22 --

5
before driving off. They then drove to a Jon’s Market in North
Hollywood, where they remained for five minutes. Next, the duo
drove to a CVS Pharmacy on Ventura Boulevard, and then to a
Best Buy store in Van Nuys, where they remained for
approximately three minutes. Around 11:40 p.m., they drove
back to the Jon’s Market in North Hollywood, parked, and
walked around, departing after 15 minutes. This was followed by
a drive to a Gelson’s market in Valley Village, where Harris
walked around the parking lot and watched the market’s front
entrance as he crawled around some bushes. The men then drove
to a Vallarta market in North Hollywood, a Ralph’s market on
Laurel Canyon, and then to a 99 Cents Only Store in North
Hollywood, where they sat in the parking lot for almost an hour.
At about 3:00 a.m., defendants drove to a Smart & Final store in
North Hollywood, parked for about 12 minutes, drove to a small
market, and then returned to one of the CVS pharmacies. At
4:45 a.m., they drove to a Smart & Final store in East Los
Angeles, a Vallarta market, a Top Value market, Steven’s
Steakhouse, a Pep Boys store, and finally — at 6:15 a.m. — a
Stater Brother’s market. The surveillance team observed similar
excursions undertaken by Nelson and Harris on other dates.
c. Lawry’s Prime Rib restaurant attempted robbery
Starting at about midnight on July 11, 2008, the
surveillance team followed Harris and Nelson to various stores: a
K-mart, a Vallarta market, a Gelson’s market, a Marshall’s store,
and finally, at approximately 5:30 a.m., a Lawry’s Prime Rib
restaurant located in Beverly Hills. The restaurant was not open
for business at the time. Walter Eckstein was inside the
restaurant, working as the executive chef. When a restaurant
worker briefly exited the restaurant and then went back inside,

-- 5 of 22 --

6
Harris and Nelson entered the restaurant through the same door.
Nelson was clad in a navy blue hoodie and dark pants, and was
carrying a black duffel bag. Harris was wearing a black hoodie
and light colored pants. Harris and Nelson came back out of the
restaurant in under a minute and hid behind some dumpsters.
After waiting approximately one minute, they went back inside
the restaurant. Inside, Eckstein observed one of them come
through the door, holding a gun; the other grabbed Eckstein from
behind and put a gun to his forehead. Eckstein was ordered to
open the safe, but he said he could not. Harris and Nelson forced
Eckstein to lie on the floor and one of them tried to tie his hands,
but failed. Harris and Nelson exited the restaurant and ran to
Harris’s truck. Nelson threw a black bag into the back of the
truck, and the men drove off.
Police officers stopped Harris’s truck shortly thereafter.
Harris pointed a firearm at an officer and a gunfight ensued,
during which Nelson was injured and the defendants were
arrested. Harris had a handgun in his waistband. In the bed of
the truck, police found a black bag with 10 zip ties and a second
handgun. Inside the truck’s passenger compartment police found
a bag containing a pair of gloves; three black half-masks that
would “cover[ ] the lower portion of the face,” a black hoodie
sweatshirt, black and white zip ties, and more gloves. Officers
discovered paperwork bearing Nelson’s name on the front
passenger seat.
In a field show-up conducted approximately an hour after
the incident, Eckstein stated that Harris and Nelson appeared to
be the same size as the assailants, and their clothing was similar
to that worn by the assailants; however, he could not identify the
men as the perpetrators because he had not seen their faces.

-- 6 of 22 --

7
2. Procedure
Both Harris and Nelson were convicted of conspiracy to
commit robbery, attempted robbery, and possession of a firearm
by a felon (Pen. Code,1 §§ 182, 211, 664, & former § 12021). In
addition, Harris was convicted of six additional counts of
attempted robbery, five counts of assault with a firearm, seven
counts of robbery, 14 counts of false imprisonment by violence,
sexual battery by restraint, and one additional count of
possession of a firearm by a felon (§§ 664, 211, 245, 236, 243.4, &
former § 12021). As to both defendants, the jury found true
personal firearm use, prior serious felony conviction, and prior
prison term allegations. (§§ 12022.5, 12022.53, 667, subds. (a)–
(i), 667.5.) Harris was sentenced to prison for a term of 620 years
to life, and Nelson was sentenced to prison for a term of 50 years
to life.
CONTENTIONS
Harris originally raised claims of evidentiary error,
prosecutorial misconduct, erroneous denial of his new trial
motion brought on the ground his trial counsel was ineffective,
and cumulative error. However, his counsel has moved to
permanently abate proceedings and dismiss Harris’s appeal in
light of his recent death.
Nelson, joining in an argument originally made by Harris,2
contends the trial court erred by denying appellants’ motion to
suppress evidence obtained through use of a GPS tracking device
1 All further statutory references are to the Penal Code
unless otherwise specified.
2 In light of Harris’s death and dismissal of his appeal, for
convenience we treat this argument as if made originally by
Nelson.

-- 7 of 22 --

8
affixed to Harris’s vehicle. He further avers that his sentence
was improperly enhanced with two prior serious felony conviction
findings under section 667, subdivision (a), and the matter must
be remanded to allow the trial court to exercise its discretion and
determine whether to strike or dismiss the firearm
enhancements.
DISCUSSION
1. Abatement of proceedings and dismissal of Harris’s
appeal
On July 3, 2018, counsel for Harris informed this court that
Harris died in prison on or about May 29, 2018. Harris’s death
renders his appeal moot and all proceedings as to him must be
permanently abated. (In re Sheena K. (2007) 40 Cal.4th 875, 879,
893.) Accordingly, we order Harris’s appeal dismissed. (Id. at
p. 893; People v. Smith (1994) 21 Cal.App.4th 942, 951.)
2. The motion to suppress evidence was properly denied
Nelson contends the trial court erred by denying
defendants’ motion to suppress evidence obtained when the police
secretly affixed a GPS tracking device to Harris’s truck without a
search warrant. We conclude the trial court properly denied the
suppression motion because the police were acting in good faith
reliance on the state of the law at the time.
a. Standard of review
“The Fourth Amendment provides ‘[t]he right of the people
to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated . . . .’
(U.S. Const., 4th Amend.) This guarantee has been incorporated
into the Fourteenth Amendment to the federal Constitution and
is applicable to the states. [Citation.] A similar guarantee
against unreasonable government searches is set forth in the

-- 8 of 22 --

9
state Constitution (Cal. Const., art. I, § 13) but, since voter
approval of Proposition 8 in June 1982, state and federal claims
relating to exclusion of evidence on grounds of unreasonable
search and seizure are measured by the same standard.
[Citations.] ‘Our state Constitution thus forbids the courts to
order the exclusion of evidence at trial as a remedy for an
unreasonable search and seizure unless that remedy is required
by the federal Constitution as interpreted by the United States
Supreme Court.’ [Citation.]” (People v. Camacho (2000)
23 Cal.4th 824, 829–830, fn. omitted.)
A reviewing court must uphold the trial court’s factual
findings if they are supported by substantial evidence. (People v.
Williams (1988) 45 Cal.3d 1268, 1301, disapproved on other
grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) “The
question of whether a search was unreasonable, however, is a
question of law. On that issue, we exercise ‘independent
judgment.’ [Citations.]” (People v. Camacho, supra, 23 Cal.4th at
p. 830.)
b. Factual background
At the suppression hearing, Detective David Friedrich
testified that between May and July, 2008, he participated in an
undercover surveillance effort aimed at defendant Harris.
Sometime after May 30, he placed a battery-powered GPS
tracking device on Harris’s pickup truck while it was parked on a
public street. At the time Friedrich affixed the device, his
understanding of the existing state of the law was that police
were permitted to place such a device on a vehicle without a
search warrant if the affixing was done in a public place. He had
been trained that a search warrant was required only if he

-- 9 of 22 --

10
hardwired the device to the vehicle, e.g., by powering the GPS
device from the vehicle’s own battery.
Asked if the GPS device had “recording capabilities,” the
following colloquy occurred:
“The witness: The GPS device has a memory that we use
[but] . . . none of the movements [ ] the vehicle made were saved.
“By Mr. Nelson:
“Q. Is there any reason why they weren’t made or saved?
“A. We utilize the GPS in our surveillance . . . just to locate
the vehicle to begin physical surveillance of the pickup [truck],
and that was the only reason why we utilized the device, so we
can come in in the afternoon, and if the car wasn’t there, we
weren’t wasting our time waiting for the vehicle to show back up
on [sic] the house. [¶] We would just dial it up and then respond
to the location of the vehicle and begin a physical surveillance.”
Detective Friedrich could not recall specifically who made
the decision to install the GPS device on Harris’s truck, but he
thought it had probably been Detective Benjamin, who was in
charge of the case.
Friedrich testified the device had to be replaced “a few
times.” Each time, the truck was in a public place.
The trial court denied defendants’ suppression motion
because at the time the GPS device was used in this case, the
United States Supreme Court had not yet decided United States
v. Jones (2012) 565 U.S. 400 [132 S.Ct. 945] (Jones), which held
that “the Government’s installation of a GPS device on a target’s
vehicle, and its use of that device to monitor the vehicle’s
movements, constitutes a ‘search.’ ” (Id. at p. 404, fn. omitted.)
Prior to that time, controlling precedent in California allowed
tracking devices to be placed on the underside of vehicles without

-- 10 of 22 --

11
a warrant because “installing an electronic tracking device on the
undercarriage of defendant’s truck did not amount to a search
within the meaning of the Fourth Amendment.” (People v.
Zichwic (2001) 94 Cal.App.4th 944, 953 (Zichwic).) The trial
court concluded that Friedrich’s testimony was credible and that
he had acted in reasonable good faith.
c. Discussion.
In 2012, the United States Supreme Court in Jones “held
that the government’s attachment of a GPS tracking device to the
defendant’s vehicle and use of that device to monitor the vehicle’s
movements on public streets was a search within the meaning of
the Fourth Amendment and thus required a warrant.”3 (People v.
Mackey (2015) 233 Cal.App.4th 32, 94 (Mackey).) “Jones changed
the law in California. Prior to Jones, California state courts and
the Ninth Circuit had held that installation of a GPS device by
law enforcement authorities was not a search governed by the
Fourth Amendment because a vehicle operator had no reasonable
expectation of privacy in a vehicle’s exterior. [Citations.]” (Id. at
p. 95.)
“[N]ewly announced rules of constitutional criminal
procedure must apply ‘retroactively to all cases, state or federal,
pending on direct review or not yet final, with no exception.’
[Citation.]” (Davis v. United States (2011) 564 U.S. 229, 243 [131
S.Ct. 2419] (Davis).) However, “Evidence obtained during a
3 Jones concluded a Fourth Amendment search occurred
because the “[g]overnment physically occupied private property
for the purpose of obtaining information.” (Jones, supra, 565 U.S.
at p. 404.)

-- 11 of 22 --

12
search conducted in reasonable reliance on binding precedent is
not subject to the exclusionary rule.” (Id. at p. 241, italics added.)4
Detective Friedrich installed the GPS transmitter in 2008,
before Jones was decided. At that time, the binding California
appellate precedent was Zichwic, which held that placement of
an electronic tracking device on the undercarriage of a vehicle, by
an officer who was in a place where he or she had a right to be,
did not constitute a search and, therefore, did not require a
search warrant. Hence, the question becomes whether using the
GPS device in this case is entitled to the objective good faith
exception set forth in United States v. Leon, supra, 468 U.S. 897
[104 S.Ct. 3405]. (See People v. Macabeo (2016) 1 Cal.5th 1206,
1219–1220.)
This issue has already been squarely addressed by Mackey,
where an Oakland Police officer placed a GPS tracking device on
4 “Our retroactivity jurisprudence is concerned with whether,
as a categorical matter, a new rule is available on direct review
as a potential ground for relief. Retroactive application . . . lifts
what would otherwise be a categorical bar to obtaining redress
for the government’s violation of a newly announced
constitutional rule. [Citation.] Retroactive application does not,
however, determine what ‘appropriate remedy’ (if any) the
defendant should obtain. [Citation.]. . . . As a result, the
retroactive application of a new rule of substantive Fourth
Amendment law raises the question whether a suppression
remedy applies; it does not answer that question. See [United
States v.] Leon [(1984)] 468 U.S. [897,] 906 [104 S.Ct. 3405]
(‘Whether the exclusionary sanction is appropriately imposed in a
particular case . . . is “an issue separate from the question
whether the Fourth Amendment rights of the party seeking to
invoke the rule were violated by police conduct” ’).” (Davis,
supra, 564 U.S. at pp. 243–244.)

-- 12 of 22 --

13
the defendant’s vehicle without a warrant in 2007 (i.e., five years
before Jones was decided). The device was battery-operated and
was installed while the vehicle was parked in a public place. The
device sent signals that could be tracked in real-time through the
Internet. (Mackey, supra, 233 Cal.App.4th at pp. 93–94.) At the
suppression hearing, the prosecutor cited Zichwic and argued the
officer had acted in good faith reliance on case law at the time
allowing him to install the device without a warrant. The trial
court agreed that affixing a GPS device to the exterior of the
vehicle did not violate the defendant’s Fourth Amendment rights.
(Mackey, at pp. 94–95.) On appeal, the Court of Appeal affirmed
the denial of the suppression motion, finding that the “holding in
Zichwic was [the] binding California precedent upon which the
police could reasonably rely in 2007, when they installed a GPS
device on [the defendant]’s vehicle.” (Id. at p. 96.) As in Mackey,
here it was objectively reasonable for the police in 2008 to rely on
Zichwic as the basis for affixing the GPS device to Harris’s truck
without a search warrant.
Nelson argues the prosecution failed to produce sufficient
evidence at the suppression hearing to establish a Leon good faith
exception because Detective Friedrich testified he was not the
actual “decision-maker,” i.e., he had been ordered by a superior
officer to affix the device to Harris’s truck. But the guiding test is
objective, not subjective: “[W]e hold that searches conducted in
objectively reasonable reliance on binding appellate precedent
are not subject to the exclusionary rule.” (Davis, supra, 564 U.S.
at p. 232; see also People v. Willis (2002) 28 Cal.4th 22, 33 [“the
good faith exception . . . is an objective one; [it] does not turn on
the subjective good faith of individual officers”]; United States v.
Sparks (1st Cir. 2013) 711 F.3d 58, 66, fn. 6 [“we do not believe

-- 13 of 22 --

14
. . . that Davis requires the government to show actual, as well as
objectively reasonable, reliance”].)
Nelson also argues Zichwic did not constitute binding
appellate authority because the defendant there “claimed a
Fourth Amendment search violation based only on the
installation of the tracking device. In contrast, appellant here
argued the warrantless attachment of the device and the ensuing
prolonged monitoring was constitutionally prohibited.” But this
argument is misleading because the defendant in Zichwic in
effect conceded he would lose on the monitoring argument given
the state of the law at that time: “We observe that it is a
separate question whether monitoring signals from a tracking
device is a search. [Citation.] The United States Supreme Court
has concluded that monitoring electronic signals does not amount
to a search when the only information provided is what could be
obtained through visual surveillance, such as the movements of
an automobile on public thoroughfares. (United States v. Knotts
(1983) 460 U.S. 276, 281–282, 285 [103 S.Ct. 1081, 1085, 1087].)
Monitoring does amount to a search when it reveals information
about otherwise hidden activities inside a residence. (United
States v. Karo (1984) 468 U.S. 705, 715 [104 S.Ct. 3296, 3303].)
In our case, monitoring the tracking device simply revealed the
movements of defendant’s truck on city streets.” (Zichwic, supra,
94 Cal.App.4th at p. 956; see United States v. Sparks, supra, 711
F.3d at p. 67 [“[A]t the time of the search in this case, Knotts was
widely and reasonably understood to stand for the proposition
that the Fourth Amendment simply was not implicated by
electronic surveillance of public automotive movements, because
the latter was merely a more efficient ‘substitute . . . for an
activity, namely following a car on a public street, that is

-- 14 of 22 --

15
unequivocally not a search within the meaning of the
amendment.’ [Citations.] (Italics added.)”]; United States v.
Pineda-Moreno (9th Cir. 2012) 688 F.3d 1087, 1090 [“T]he agents
attached and used the mobile tracking devices . . . in objectively
reasonable reliance on then-binding precedent. In 2007, circuit
precedent held that placing an electronic tracking device on the
undercarriage of a car was neither a search nor a seizure under
the Fourth Amendment. [Citation.] Circuit law also held that
the government does not violate the Fourth Amendment when it
uses an electronic tracking device to monitor the movements of a
car along public roads. [Citations.]”.)
Nelson further argues that section 637.7, enacted in 1998,
negates any good faith exception to imposition of the exclusionary
rule. But this statute says, in relevant part: “(a) No person or
entity in this state shall use an electronic tracking device to
determine the location or movement of a person. [¶] . . . [¶]
(c) This section shall not apply to the lawful use of an electronic
tracking device by a law enforcement agency.” (Italics added.)
Not only do the very terms of the statute contradict this
argument, but Mackey rejected it: “Defendants further claim the
exact rationale Zichwic relied on—that defendant did not have a
reasonable expectation of privacy—had been, in their words,
‘explicitly rejected as the policy of this state’ by the Legislature’s
enactment of section 637.7. The introductory section of the
enacting legislation included the statement that ‘electronic
tracking of a person’s location without that person’s knowledge
violates that person’s reasonable expectation of privacy.’ (Stats.
1998, ch. 449, § 1.) . . . . [¶] [But the] legislative statement
referred to does no more than establish a general statewide
policy. It cannot define the scope of the exclusionary rule in

-- 15 of 22 --

16
California. That definition is contained within the ‘[t]ruth-in-
[e]vidence’ provision of the California Constitution (art. I, § 28,
subd. (f)(2) [formerly subd. (d)]), which prohibits application of
the exclusionary rule to evidence gathered in violation of state
law unless exclusion is compelled by the federal Constitution.
[Citation.]” (Mackey, supra, 233 Cal.App.4th at p. 97,
fn. omitted.)
We conclude the trial court properly denied the motion to
suppress evidence gathered by the GPS device in this case.
3. Nelson’s sentence was improperly enhanced by prior
conviction allegations added after the jury was discharged.
Nelson contends the trial court erred by sentencing him on
two out of three prior serious felony conviction enhancements
(§ 667, subd. (a)) because they were not “brought and tried
separately.” This claim is based, in turn, on Nelson’s contention
that the trial court erred by letting the People amend the
information to add additional prior conviction allegations after
the jury had already been discharged. The Attorney General
properly concedes that the latter claim has merit, but then
argues, inconsistently, that the former claim is incorrect. We
conclude that Nelson’s sentencing claim has merit, and order that
two of the five-year enhancements imposed under section 667,
subdivision (a), be stricken.
The amended information alleged that Nelson had
sustained a number5 of prior serious felony convictions under
5 We find the parties’ counting of these priors to be
confusing. Both parties assert there were three such priors
charged. However, next to the second degree robbery conviction,
the amended information says “(3 cts.),” and next to the
aggravated assault conviction the amended information says

-- 16 of 22 --

17
section 667, subdivision (a), which provides for “a five-year
enhancement for each such prior conviction on charges brought
and tried separately.” (§ 667, subd. (a)(1).) According to the
amended information, all of these priors arose out of the same
1992 judgment in superior court case number BA014699. After
Nelson’s jury was discharged, and over his objection, the trial
court allowed the People to amend the information a second time
to allege additional prior convictions under two other superior
court cases: a 1981 judgment in case number A081445, and a
1978 judgment in case number A444411. According to the
Attorney General, the reason for this second amendment was
that “the prosecutor . . . failed to review [Nelson’s section 969b
prison packet] adequately.”
As the Attorney General rightly concedes, it was improper
for the trial court to allow the prosecution to amend the
information to add additional prior conviction allegations after
the jury had already been discharged. As stated by the Supreme
Court in People v. Tindall (2000) 24 Cal.4th 767, “[s]ection 1025,
subdivision (b) provides, in pertinent part: ‘the question of
whether or not the defendant has suffered the prior conviction
shall be tried by the jury that tries the issue upon the plea of not
guilty . . . .’ Section 969a, however, states that prior conviction
allegations may be added ‘[w]henever it shall be discovered that a
pending indictment or information does not charge all prior
felonies . . . .’ We interpreted section 969a to permit the
prosecution, on order of the court, to amend the information until
“(6 cts.).” Hence, where the parties count only three section 667,
subdivision (a), allegations, it appears that nine such priors may
have been charged, albeit all stemming from the same superior
court case.

-- 17 of 22 --

18
sentencing so long as the court has not discharged the jury.
[Citations.] Notwithstanding section 969a, defendant argues that
section 1025, subdivision (b), prohibits the prosecution from
amending the information to allege prior convictions after the
jury that decided the guilt issue has been discharged. For
reasons that follow, we agree.” (Id. at pp. 771–772, fn. omitted;
accord, People v. Gutierrez (2001) 93 Cal.App.4th 15, 24 [“The
trial court acted in excess of jurisdiction in allowing the
prosecution to file a late, amended information alleging the
Nevada state robbery conviction as a strike prior and as a five-
year enhancement.”].)
Hence, we agree with Nelson that the additional prior
serious felony conviction findings arising from the allegations
added to the information after his jury was discharged must be
vacated.
Nelson next contends that his sentence must be corrected
because, as part of his prison term of 50 years to life, the trial
court included 15 years for three section 667, subdivision (a),
priors, but should have only punished him for one five-year
enhancement. We agree. “[T]he requirement in section
667[, subdivision (a)] that the predicate charges must have been
‘brought and tried separately’ demands that the underlying
proceedings must have been formally distinct, from filing to
adjudication of guilt. Here, as the record plainly reveals, the
charges in question were not ‘brought . . . separately,’ but were
made in a single complaint.” (In re Harris (1989) 49 Cal.3d 131,
136; People v. Deay (1987) 194 Cal.App.3d 280, 286 [“Charges
brought and tried ‘separately’ for purposes of section 667 means
simply that prior formal proceedings leading to multiple
adjudications of guilt must have been totally separate”].)

-- 18 of 22 --

19
The Attorney General argues Nelson is wrong because the
priors stemming from case numbers A444411 and A081445 were
brought and tried separately from the prior stemming from case
number BA014699. But it is the Attorney General who is
incorrect because, as discussed ante, the trial court erred by
adding the prior allegations from case numbers A444411 and
A081445 after the jury had already been discharged. Therefore,
the two prior enhancements stemming from case numbers
A444411 and A081445 must be stricken.
However, because—in addition to the 50-years-to-life term
Nelson received on count 1 (for attempted robbery)—the trial
court also sentenced him to a concurrent term of six years on
count 3 (for possession of a firearm by a felon), it is appropriate to
remand this matter so the trial court may consider restructuring
Nelson’s sentence. (See People v. Burbine (2003) 106 Cal.App.4th
1250, 1256 [“the trial judge’s original sentencing choices did not
constrain him or her from imposing any sentence permitted
under the applicable statutes and rules on remand, subject only
to the limitation that the aggregate prison term could not be
increased”]; People v. Castaneda (1999) 75 Cal.App.4th 611, 614
[remand for resentencing proper where original sentence
contained unauthorized enhancement]; People v. Stevens (1988)
205 Cal.App.3d 1452, 1455–1458 [remand for resentencing proper
where original sentence violated “double-the-base-term” rule].)
4. Remand for consideration of amended sections 12022.5
and 12022.53 (Senate Bill 620)
As noted, after we filed our original opinion in this matter,
our Supreme Court granted review and remanded this matter to
us with directions to reconsider the cause in light of Senate Bill
620. When Nelson was sentenced, imposition of section 12022.5

-- 19 of 22 --

20
and 12022.53 enhancements was mandatory and the trial court
lacked discretion to strike them. (See former § 12022.5, subd. (c),
Stats. 2011, ch. 39, § 60; former § 12022.53, subd. (c), Stats. 2010,
ch. 711, § 5; People v. Kim (2011) 193 Cal.App.4th 1355, 1362–
1363.) Effective January 1, 2018, the Legislature amended
sections 12022.5 and 12022.53 to give trial courts authority to
strike firearm enhancements in the interest of justice. (Sen. Bill
No. 620 (2017–2018 Reg. Sess.), Stats. 2017, ch. 682, §§ 1, 2.) As
amended, section 12022.5 provides in pertinent part: “(c) 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.” Section 12022.53 was amended
to add the same language. (§ 12022.53, subd. (h).)
The amendments to sections 12022.5 and 12022.53 apply to
cases, such as Nelson’s, that were not final when the amendment
became operative. (People v. Arredondo (2018) 21 Cal.App.5th
493, 507; People v. Woods (2018) 19 Cal.App.5th 1080, 1090–
1091.) Under In re Estrada (1965) 63 Cal.2d 740, we presume
that, absent contrary evidence, an amendment reducing
punishment for a crime applies retroactively to all nonfinal
judgments. (Id. at p. 745; People v. Brown (2012) 54 Cal.4th 314,
323; People v. Vieira (2005) 35 Cal.4th 264, 305–306.) The
Estrada rule has been applied to penalty enhancements, as well
as to amendments giving the court discretion to impose a lesser
penalty. (People v. Nasalga (1996) 12 Cal.4th 784, 792; People v.
Francis (1969) 71 Cal.2d 66, 75–76.)
Here, Nelson was sentenced to an additional 10 years on
count 2 for his personal use of a firearm pursuant to section

-- 20 of 22 --

21
12022.53, subdivision (b). He was also sentenced to a 10-year
term under section 12022.5, stayed pursuant to section 654.
Amended sections 12022.5 and 12022.53 may retroactively be
applied in Nelson’s case. Additionally, both statutes expressly
state that the trial court has discretion to strike enhancements
imposed pursuant to those subdivisions when resentencing occurs
pursuant to any other law. This language suggests the
amendment applies to crimes committed prior to the
amendment’s effective date, that are now before the court for
resentencing for other reasons. As discussed, this matter must be
remanded for resentencing in any event. Accordingly, on
remand, the trial court has discretion, under amended sections
12022.5 and 12022.53, to consider whether or not to strike the
firearm enhancements. We offer no opinion on how the court’s
discretion should be exercised.

-- 21 of 22 --

22
DISPOSITION
Proceedings in Harris’s case are ordered permanently
abated, and the Clerk of the Superior Court is directed to enter
an order to that effect in case No. BA343411. His appeal is
dismissed.
As to Nelson, the true findings on two of the section 667,
subdivision (a) enhancements are vacated and the associated
enhancements are ordered stricken, the sentence is vacated, and
the matter is remanded for resentencing in accordance with the
opinions expressed herein. In all other respects, Nelson’s
judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

-- 22 of 22 --