Filed 5/9/18
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION ONE


THE PEOPLE,                                B280630

       Plaintiff and Respondent,           (Los Angeles County
                                           Super. Ct. No. BA398681)
       v.

JIMMY VALENZUELA,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed; remanded
with directions.
      Mark L. Christiansen, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Margaret E. Maxwell and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
                   ____________________________
      Jimmy Valenzuela appeals from the judgment entered on
his conviction for two counts of first degree murder. Valenzuela
contends the verdict for one of the murders is unintelligible
because the jury submitted two signed verdict forms for that
murder, one reflecting a guilty verdict and the other a not guilty
verdict. Valenzuela also contends he should benefit from a
change in the law granting trial courts the discretion to strike
gun enhancements. We agree with the second contention but
reject the first, and thus affirm Valenzuela’s conviction but
remand for resentencing.
                            BACKGROUND
      In 2007, an assailant shot and killed Joe Alvarado. In
2010, an assailant shot and killed Jimmy Jimenez. Both were
members of the Varrio Nuevo Estrada street gang and were
thought to have been killed by a member of the rival Southside
Montebello street gang. During recorded conversations with a
police informant, Valenzuela admitted shooting Alvarado and
Jimenez. He was arrested and tried on two counts of first degree
murder.
      At the end of trial, after the jury indicated it had reached a
verdict and returned verdict forms for the Alvarado and Jimenez
murders, the trial court stated, “The jury has reached a verdict.
I am unsealing the verdicts. [¶] The verdicts appear to be
correctly dated and signed. [¶] The clerk will read the verdicts
as they are to be recorded.” The court clerk read the verdicts,
both of which indicated the jury found Valenzuela guilty of two
counts of first degree murder, and as to each count found true the
firearm and gang allegations and the special circumstances




                                 2
allegation that he had committed “more than one murder in this
case.” The clerk then asked, “Ladies and gentlemen of the jury,
are these your verdicts, so say you one, so say you all?” The jury
answered in the affirmative.
      When the trial court inquired whether either side wished to
have the jury polled, Valenzuela’s counsel indicated he did want
the jury polled. The court then stated, “Ladies and gentlemen of
the jury, as I call you by your seat number, please answer ‘yes’ or
‘no’ to the following question: Are these your individual verdicts
as to counts One and Two?” Each juror answered in the
affirmative.
      The court sentenced Valenzuela for the Alvarado murder to
life in prison without the possibility of parole, plus 25 years to life,
and for the Jimenez murder to a concurrent sentence of the same
length.
      Valenzuela timely appealed.
      The record on appeal includes two signed verdict forms for
the Jimenez murder. In the first, which was read at trial, the
jury found Valenzuela guilty. The second delivers a not guilty
verdict.
                           DISCUSSION
I.   The Verdict is Intelligible
      Valenzuela argues the signed guilty and not guilty verdict
forms create an unintelligible verdict. We disagree.
      The Legislature has set down “in prescriptive detail” the
procedures a court must follow in receiving a jury verdict.
(People v. Carbajal (2013) 56 Cal.4th 521, 530.) Penal Code
“[s]ection 1147 provides that ‘[w]hen the jury have agreed upon




                                   3
their verdict, they must be conducted into court by the officer
having them in charge.’ Section 1149 provides that ‘[w]hen the
jury appear they must be asked by the Court, or Clerk, whether
they have agreed upon their verdict, and if the foreman answers
in the affirmative, they must, on being required, declare the
same. . . .’ Section 1163 provides that ‘[w]hen a verdict is
rendered, and before it is recorded, the jury may be polled, at the
request of either party, in which case they must be severally
asked whether it is their verdict, and if any one answer in the
negative, the jury must be sent out for further deliberation.’ And
section 1164, subdivision (a) provides that ‘[w]hen the verdict
given is receivable by the court, the clerk shall record it in full
upon the minutes, and if requested by any party shall read it to
the jury, and inquire of them whether it is their verdict. If any
juror disagrees, the fact shall be entered upon the minutes and
the jury again sent out; but if no disagreement is expressed, the
verdict is complete. . . .’ ” (Id. at pp. 530-531.)
      Regardless of what verdict forms are returned, the jurors’
oral declaration is the true return of the verdict. (People v.
Traugott (2010) 184 Cal.App.4th 492, 500; People v. Lankford
(1976) 55 Cal.App.3d 203, 211, disapproved on another ground in
People v. Collins (1976) 17 Cal.3d 687, 694; People v. Mestas
(1967) 253 Cal.App.2d 780, 786.) Whenever two verdicts on
different counts conflict and the jurors orally acknowledge only
one, the acknowledged verdict is the only true one and, therefore
the only verdict upon which judgment can be rendered. (People v.
Thornton (1984) 155 Cal.App.3d 845, 858.)




                                    4
      Here, the sealed envelope given to the trial court by the
jury contained only one verdict form for the Jimenez murder. It
was read in open court and unequivocally found Valenzuela
guilty. The jurors then collectively and individually affirmed the
guilty finding. This was the true, intelligible return of the
verdict.
      Valenzuela relies on People v. Brown (2016) 247
Cal.App.4th 211 for the proposition that when a jury submits
both guilty and not guilty verdicts on the same count, the actual
verdict is unintelligible.
      People v. Brown is distinguishable. There, the jury
returned signed guilty and not guilty verdict forms for the same
count, with the not guilty form having the words “withdrawl [sic]
void” handwritten across the form. (247 Cal.App.4th at p. 214.)
The trial court replaced the not guilty form with a clean copy and
instructed the jury how to sign the forms. (Ibid.) The next day,
the jury again rendered the verdict, again sending out two
signed, conflicting guilty and not guilty verdict forms, except this
time the not guilty form had no writing on it to indicate the jury
wished it to be void or of no effect. The court, assuming the jury
had made the same mistake as it made the day before,
disregarded the not guilty verdict form without informing counsel
of it. (Ibid.) After reading only the guilty verdict, the court
polled the jury collectively, obtained confirmation of the verdict,
and excused them. The court later explained to counsel that the
jury had returned signed guilty and not guilty verdict forms the
day before, and had done so a second time prior to its reading the
verdicts in open court. (Ibid.) The court stated that it




                                  5
determined the not guilty form to be a clerical mistake, and
disregarded it. (Id. at pp. 214-215.)
      The appellate court reversed, holding “there is no
recordable verdict when the jury purports to find the defendant
guilty and not guilty on the same count, and the court does not
get to pick the verdict to be entered based on its conclusion that
that verdict is the correct one and the other was erroneously
made.” (People v. Brown, supra, 247 Cal.App.4th at p. 232.)
      Here, nothing in the record suggests either affirmatively or
by reasonable inference that the jury returned inconsistent
verdicts. When it received the verdicts on both murder counts
the court stated, “The verdicts appear to be correctly dated and
signed,” which it would not have done had there been conflicting
verdicts. The court then gave the forms to the clerk, who read
only guilty verdicts aloud as to both counts. To infer the jury
submitted inconsistent verdicts would require us to deem it
reasonable that a judge and a court clerk would each ignore
without comment a jury’s signed, not guilty verdict, remain silent
while the other did the same, and trust the jury to also ignore the
inconsistency when polled. The notion defies reason.
      We therefore affirm the judgment.
II.   Senate Bill No. 620 Requires Remand
      The jury found that Valenzuela personally and
intentionally used and discharged firearms, causing great bodily
injury and death. Lacking at the time authority to strike or
dismiss gun enhancements under Penal Code section 12022.53
(see, e.g., People v. Somnang Kim (2011) 193 Cal.App.4th 1355,




                                 6
1362-1363), the trial court imposed a 25-years-to-life gun
enhancement pursuant to subdivision (d) of section 12022.53.1
      Before Valenzuela had exhausted his opportunities to
challenge the trial court’s judgment in reviewing courts, the
Legislature amended section 12022.53 to provide that 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.” (§ 12022.53, subd. (h);
Stats. 2017, ch. 682.)2 The amendment went into effect on
January 1, 2018. (See Cal. Const., art. IV, § 8, subd. (c).)
      Valenzuela argues, and the People concede, that remand is
necessary to give the trial court an opportunity to exercise its
discretion on whether to strike the firearm enhancement. We
agree.
      Generally, amendments to the Penal Code do not apply
retroactively. (§ 3.) However, our Supreme Court has recognized
an exception for an amendment that reduces the punishment for
a specific crime. (See In re Estrada (1965) 63 Cal.2d 740, 745
(Estrada); accord, People v. Brown (2012) 54 Cal.4th 314, 323-
324.) The Estrada court explained that when the Legislature
has reduced a crime’s punishment, it has “expressly determined


      1
       All further statutory references are to the Penal Code
unless otherwise indicated.

      2 Under section 1385, the court “may, either of his or her
own motion or upon the application of the prosecuting attorney,
and in furtherance of justice, order an action to be dismissed,” “to
strike or dismiss an enhancement,” or to “strike the additional
punishment for that enhancement.” (§ 1385, subds. (a) & (c).)



                                  7
that its former penalty was too severe and that a lighter
punishment is proper as punishment for the commission of the
prohibited act.” (Estrada, supra, at p. 745.) The Court inferred
that “the Legislature must have intended that the new statute
imposing the new lighter penalty now deemed to be sufficient
should apply to every case to which it constitutionally could
apply.” (Ibid.) To “hold otherwise would be to conclude that the
Legislature was motivated by a desire for vengeance, a
conclusion not permitted in view of modern theories of penology.”
(Ibid.)
        The Supreme Court has extended the Estrada holding to
amendments that give the trial court discretion to impose a
lesser sentence even if it does not necessarily reduce a
defendant’s punishment. (People v. Francis (1969) 71 Cal.2d 66,
75-76; see People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
308.)
        Although the trial court here had no discretion to strike a
gun enhancement at the time of sentencing, the record creates a
possibility the court might have been open to doing so. Therefore,
the matter must be remanded to provide the court with the
opportunity to exercise its discretion.
III.    Additional Fees
        The People observe, and Valenzuela agrees, that the
abstract of judgment reflects a single imposition of a court
operations assessment (§ 1465.8, subd. (a)(1)) and criminal
conviction assessment (Gov. Code, § 70373), whereas the trial
court ordered one of each assessment for each murder count.
Because the abstract of judgment does not reflect the oral




                                   8
pronouncement at sentencing, we will order that the error be
corrected on remand. (People v. Mitchell (2001) 26 Cal.4th 181,
185.)
                          DISPOSITION
        The judgment is affirmed. The sentence is vacated as to
the enhancements imposed and the matter is remanded to afford
the trial court an opportunity to (1) strike enhancements as
discussed above and (2) correct the abstract of judgment.
      CERTIFIED FOR PUBLICATION




                                           CHANEY, J.


We concur:




             ROTHSCHILD, P. J.




             JOHNSON, J.




                                 9
