Filed 5/8/18 (unmodified opn. attached)
             CERTIFIED FOR PARTIAL PUBLICATION




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                              DIVISION SEVEN


THE PEOPLE,                                    B279929

       Plaintiff and Respondent,               (Los Angeles County
                                               Super. Ct. No. YA091690)
       v.
                                            ORDER MODIFYING OPINION;
JOSEPH L. BILLINGSLEY,                      NO CHANGE IN JUDGMENT

       Defendant and Appellant.


      The opinion filed on May 2, 2018, and partially certified for
publication, is modified as follows:

      On page 25, footnote 8 is deleted. There are no subsequent
footnotes.

       This order does not change the judgment.




PERLUSS, P. J.                  ZELON, J.           SEGAL, J.
Filed 5/2/18 (unmodified version)
            CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SEVEN


THE PEOPLE,                             B279929

       Plaintiff and Respondent,        (Los Angeles County
                                        Super. Ct. No. YA091690)
       v.

JOSEPH L. BILLINGSLEY,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Hector M. Guzman, Judge. Affirmed and
remanded with directions.
      Mark R. Feeser, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Scott A. Taryle and David W.
Williams, Deputy Attorneys General, for Plaintiff and
Respondent.
                _______________________________
*    Under California Rules of Court, rules 8.1105(b) and 8.1110,
only the Introduction, part C of the Discussion, and the
Disposition are certified for publication.
                       INTRODUCTION

      The People charged Joseph Billingsley with two counts of
assault with a firearm and alleged in connection with both counts
Billingsley personally used a firearm within the meaning of
Penal Code section 12022.5, subdivision (a).1 The People also
charged Billingsley with shooting at an occupied motor vehicle,
discharge of a firearm with gross negligence, and the attempted
willful, deliberate, and premeditated murder of Devonte James.
In connection with the count for attempted murder, the People
alleged Billingsley personally and intentionally used and
discharged a firearm within the meaning of section 12022.53,
subdivisions (b) and (c). The People also alleged Billingsley had a
prior conviction for a felony that was a serious felony within the
meaning of section 667, subdivision (a)(1), and a prior violent or
serious felony conviction within the meaning of the three strikes
law (§§ 667, subds. (b)-(i), 1170.12).
       The jury convicted Billingsley on all counts and found all
allegations true except the allegation Billingsley attempted to
murder James willfully, deliberately, and with premeditation.
The trial court declared a mistrial on that allegation.
       The trial court imposed the lower term of five years for the
attempted murder conviction, doubled under the three strikes
law, plus five years for the prior serious felony conviction under
section 667, subdivision (a)(1), and 20 years for the firearm


1     Statutory references are to the Penal Code.




                                 2
enhancement under section 12022.53, subdivision (c). The court
imposed a consecutive term of two years for one of the convictions
for assault with a firearm (one-third the middle term of three
years, doubled), plus one year four months for the firearm
enhancement under section 12022.5, subdivision (a), on that
count. The court stayed imposition of the sentences on the
remaining counts, including for the second firearm enhancement
under section 12022.5, subdivision (a). Billingsley’s aggregate
sentence was 38 years four months.
       Billingsley contends the trial court erred by failing to
instruct the jury on self-defense and imperfect self-defense and
by denying his request for a trial continuance to locate a witness.
In a supplemental brief, Billingsley argues we should remand for
resentencing to allow the trial court to exercise discretion to
strike the firearm enhancements under the recent amendments
to sections 12022.5 and 12022.53.
       In the unpublished portion of this opinion, we affirm the
conviction. In the published portion, we remand for the trial
court to hold a new sentencing hearing under the amended
statutes.

                  FACTUAL BACKGROUND

      A.    The Confrontation at Billingsley’s House
      On the afternoon of December 7, 2014 Myesha Milton
picked up her husband James from work in her SUV. Mariah
Webster and her three-year-old son rode in the back seat. Milton
had called James earlier that day to tell him a man known to
them as Murdock called Milton a bitch while she and Webster
shopped at a liquor store. Milton drove past Billingsley’s house,




                                 3
which was near the liquor store, and James saw Murdock
outside. Milton stopped the SUV and James got out.
       James told Murdock and a group of five to seven people on
the porch of the house that he “wanted fades” with everyone,
meaning he wanted to fight them. Murdock went to talk with
James in the street, and they spoke standing next to the SUV for
several minutes. James yelled at Murdock, but never raised his
fists or threatened him with a weapon. Without warning,
someone fired shots, and a bullet shattered one of the SUV’s
windows. James began to run. He initially thought a bullet had
hit him, but the bullet only grazed his shoe. Murdock fell down
but was not hit.

      B.    The 911 Call
      An off-duty Los Angeles Police Department officer named
Andres Sandoval and his cousin stood in a driveway that
afternoon, several houses away from Billingsley’s house. Officer
Sandoval saw “a bunch of male blacks” get out of an SUV, and he
observed at least one of them reach into his waistband as if
reaching for a gun. Officer Sandoval called 911, told the operator
a fight was about to occur, and asked the operator to send
deputies. While still on the phone with the 911 operator, Officer
Sandoval heard multiple gun shots. He initially reported a
victim had been shot but later said the man got back up and ran
away.

       C.   The Investigation
       Los Angeles County Deputy Sheriff Shawn Priestley and
his partner responded to the scene within one minute. They did
not find a gunshot victim but saw two men sitting on the porch of




                                4
Billingsley’s house. As they approached the men, the deputies
found nine-millimeter shell casings in the driveway. The men
told the deputies they had just arrived at the house and did not
know anything about a shooting. As the deputies continued
questioning the two men, Billingsley came out of his house
wearing a blue, white, and black plaid shirt. He too said he did
not know anything about the shooting. The deputies detained all
three men.
       Later that evening Deputy Priestley and two other deputies
returned to Billingsley’s house with a search warrant. The
deputies retrieved eight nine-millimeter shell casings and found
three firearms and ammunition inside an outdoor stove on the
property. Ballistics tests later showed none of the guns found on
Billingsley’s property matched the shell casings. The deputies
released the two men they initially found on Billingsley’s porch
and took Billingsley into custody.
       Billingsley consented to an interview with the deputies. He
told them he was preparing for a barbeque the afternoon of the
shooting and did not hear any gunshots because a football game
was on television and he was playing loud music in the house.
He only noticed the deputies talking to his friends when he went
outside to smoke a cigarette. Billingsley denied owning any
firearms and said his mother and four other people lived in the
house with him.
       The next day, December 8, 2014, Milton and James
reported the shooting. Milton described the shooter as a dark-
skinned, bald man wearing a blue, white, black, and gray shirt.
She and James identified Billingsley as the shooter from a
photographic lineup.




                                5
        D.    The Trial
        Milton and James testified at trial. Milton testified she
picked up a friend of James named “Snap” before encountering
Murdock. She stated James and Snap both got out of the SUV to
talk to Murdock, but no one fought. She said James did not have
a gun, and she did not know what Snap “had on him.” While the
three men talked, Milton heard gunshots, looked in her rearview
mirror, and saw Billingsley shooting from his yard while he was
standing behind a car. She did not see anyone else with a gun.
After a bullet hit the window of her SUV, Milton drove away.
Milton admitted that when she and James reported the shooting
the next day she did not tell the deputies about Snap because she
did not think his presence was “important.” She first mentioned
Snap at the preliminary hearing in January 2015, 18 months
before trial, but did not know his full name.
        James testified Snap was not in the SUV or at the
encounter with Murdock. James said he saw Billingsley in his
yard while James was talking to Murdock. James told Billingsley
he could “come from behind the fence [surrounding his yard] so
we can talk, too.” James also accused Billingsley of
“disrespecting” his wife. James admitted Billingsley might have
interpreted his statements as an invitation to fight. While James
was still talking to Murdock (and Milton was “cussing out”
Murdock from the SUV), James heard gunshots and started
running. He did not see Billingsley with a gun, but James said
Billingsley “was the only one behind the [fence] doing something,
like, fishy, you know, like . . . grabbing something.” James said
neither he nor Murdock had a weapon.
        Webster was unavailable to testify at trial, but the People
introduced her testimony from the preliminary hearing. Webster




                                6
testified James got out of the SUV to talk to Murdock. She said
James and Murdock spoke for less than five minutes, and then
“next thing you know, all you heard was gunshots.” She turned
and saw through the back window of the SUV a bald African
American man shooting, and then she ducked down to protect
herself and her son. Webster said the shooter was standing
behind a gate and not on the street where James and Murdock
were talking.
       Officer Sandoval also testified at trial. He stated he saw
only one man exit the SUV, not more than one as he originally
told the 911 operator. He reiterated that the man reached into
his waistband, making Officer Sandoval think the man had a
gun, though he never saw one. Officer Sandoval also thought the
SUV was parked in a way that suggested the man was
“target[ing]” someone a few houses away. Officer Sandoval
stated he watched the man from the SUV walk to the middle of
the intersection and shout something toward Billingsley’s house,
but he never saw the man fight anyone. Officer Sandoval then
heard rapid gunfire. He took cover and did not see “where the
gunshots were coming from or where they were going,” nor could
he discern whether there was more than one shooter.
       Sheriff’s deputies could not locate Murdock to testify at
trial, and Billingsley did not testify in his defense. James refused
to provide Snap’s legal name until shortly before the trial began,
and the trial court denied Billingsley’s request for a continuance
to locate Snap for trial.




                                 7
                          DISCUSSION

      A.    The Trial Court Did Not Err by Refusing To Instruct
            the Jury on Self-defense or Imperfect Self-defense
      Billingsley argues the trial court erroneously refused to
instruct the jury on self-defense and on attempted voluntary
manslaughter based on imperfect self-defense. The trial court,
however, did not err in refusing to give those instructions.

             1.    Relevant Proceedings
      Counsel for Billingsley requested an instruction on self-
defense based on Officer Sandoval’s testimony that at least one of
the men who got out of the SUV in front of Billingsley’s house
reached into his waistband as if reaching for a gun. Counsel for
Billingsley argued that Billingsley was justified in defending his
residence. The trial court refused to give an instruction on self-
defense because such an instruction was inconsistent with
Billingsley’s statement to the deputies that “he never even fired a
weapon.” The trial court also ruled there was no substantial
evidence to support a self-defense theory, but the court stated it
would reconsider giving an instruction on self-defense if
Billingsley “took the stand or other evidence came out supporting
that position.”
      Counsel for Billingsley also asked the trial court to instruct
the jury on attempted voluntary manslaughter as a lesser-
included offense of attempted murder. The trial court denied this
request as well, stating voluntary manslaughter seemed
“inconsistent with the theory of the defense case” and ruling
there was “insufficient evidence to support an imperfect self-
defense claim or a provocation claim.”




                                 8
              2.     Applicable Law and Standard of Review
        A defendant acts in self-defense when he or she actually
and reasonably believes in the need to defend against imminent
bodily injury or death. (People v. Rodarte (2014) 223 Cal.App.4th
1158, 1168; People v. Battle (2011) 198 Cal.App.4th 50, 72
(Battle).) “‘If the belief subjectively exists but is objectively
unreasonable, there is “imperfect self-defense,” i.e., “the
defendant is deemed to have acted without malice and cannot be
convicted of murder,” but can be convicted of manslaughter.’”
(Battle, at p. 72; see People v. Booker (2011) 51 Cal.4th 141, 182;
People v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez).)
        Both self-defense and imperfect self-defense “require an
actual fear of imminent harm.” (People v. Butler (2009) 46
Cal.4th 847, 868; see Battle, supra, 198 Cal.App.4th at p. 73;
People v. Rodarte, supra, 223 Cal.App.4th at p. 1168.) “‘Fear of
future harm—no matter how great the fear and no matter how
great the likelihood of the harm—will not suffice. The
defendant’s fear must be of imminent danger to life or great
bodily injury.’” (Manriquez, supra, 37 Cal.4th at p. 581; accord,
People v. Lopez (2011) 199 Cal.App.4th 1297, 1305-1306; Battle,
at pp. 72-73.) “‘“‘[T]he peril must appear to the defendant as
immediate and present and not prospective or even in the near
future. An imminent peril is one that, from appearances, must be
instantly dealt with.’”’” (Manriquez, at p. 581; see In re
Christian S. (1994) 7 Cal.4th 768, 783; see also Battle, at p. 73
[“[a]ll the surrounding circumstances . . . may be considered in
determining whether the accused perceived an imminent threat
of death or great bodily injury”].)




                                 9
       The trial court must instruct on self-defense when “it
appears that the defendant was relying on the defense, or that
there was substantial evidence supportive of the defense, and the
defense was not inconsistent with the defendant’s theory of the
case.” (Manriquez, supra, 37 Cal.4th at p. 581; see People v.
Boyer (2006) 38 Cal.4th 412, 469; People v. Salas (2006) 37
Cal.4th 967, 982.) A trial court must instruct on imperfect self-
defense “whenever there is evidence substantial enough to merit
consideration by the jury that under this doctrine the defendant
is guilty of voluntary manslaughter.” (Manriquez, at p. 581; see
People v. Nguyen (2015) 61 Cal.4th 1015, 1066.) “‘[T]he existence
of “any evidence, no matter how weak” will not justify
instructions on a lesser included offense, but such instructions
are required whenever evidence that the defendant is guilty only
of the lesser offense is “substantial enough to merit
consideration” by the jury.’” (People v. Moye (2009) 47 Cal.4th
537, 553; accord, People v. Williams (2015) 61 Cal.4th 1244,
1263.) “‘“[S]peculation is an insufficient basis upon which to
require the giving of an instruction on a lesser included offense.”’”
(People v. Valdez (2004) 32 Cal.4th 73, 116; accord, Williams, at
p. 1264.)
       We review de novo a trial court’s decision not to give an
instruction on self-defense or imperfect self-defense. (People v.
Simon (2016) 1 Cal.5th 98, 133; Manriquez, supra, 37 Cal.4th at
p. 581; see People v. Cole (2004) 33 Cal.4th 1158, 1217
[“‘[w]hether or not to give any particular instruction in any
particular case entails the resolution of a mixed question of law
and fact [and] . . . should be examined without deference’”].) In so
doing, we consider the evidence in the light most favorable to the




                                 10
defendant. (People v. Wright (2015) 242 Cal.App.4th 1461, 1483;
People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)

      3.      There Was No Evidence Billingsley Believed He Had
              To Defend Himself Against an Imminent Threat
       Billingsley contends “there was substantial, if not
overwhelming, evidence that [the shooter] acted in self-defense.”
He points to Officer Sandoval’s statement to the 911 operator
that he saw a man get out of the SUV, reach for his waistband,
and shout in the direction of Billingsley’s house shortly before the
officer heard gunfire. Billingsley also cites testimony by Milton
and James, which Billingsley contends “established . . . the
shooting was in response to a perceived imminent and deadly
threat.” Billingsley points in particular to Milton’s testimony
that James challenged everyone sitting in front of Billingsley’s
house to a fight and that Snap accompanied James and may have
been armed. Billingsley also notes James testified Billingsley
may have interpreted James’s invitation to talk as an invitation
to fight. “Perhaps most importantly,” Billingsley argues, there
was “no apparent motive for the shooting other than in response
to what appeared to be an imminent and violent threat from
James and/or Snap.”
       Billingsley, however, does not cite any evidence that he
subjectively believed James or Snap “posed a risk of imminent
peril.” (People v. Simon, supra, 1 Cal.5th at p. 133; see
Manriquez, supra, 37 Cal.4th at p. 581 [instruction on imperfect
self-defense not warranted where the record was “devoid of
evidence” supporting the defendant’s subjective fear of imminent
peril].) Billingsley’s argument that he responded to “what
appeared to be an imminent and violent threat” is pure




                                11
speculation; there is no substantial evidence to support it. (See
People v. Young (2005) 34 Cal.4th 1149, 1200 [the trial court need
not give instructions based solely on conjecture and
speculation].)2 There was no evidence from any witness
suggesting Billingsley ever acted out of fear, let alone fear of
imminent danger. (See People v. Hill (2005) 131 Cal.App.4th
1089, 1102 [“[w]hile it is true that substantial evidence of a
defendant’s state of mind may be found in the testimony of
witnesses other than a defendant [citation], no other witness in
the instant case testified that defendant acted out of reasonable
fear”], disapproved on another ground in People v. French (2008)
43 Cal.4th 36, 48, fn. 5.) To the contrary, Billingsley told sheriff’s
deputies he did not shoot a gun and had no knowledge of the
shooting. (See Hill, at p. 1102 [the record “was totally devoid of
any expression of fear by defendant” where the defendant “told
the police he was not involved in the shooting”].)
       At most, the evidence on which Billingsley relies suggests
he may have had some fear of future harm, but there is no
indication Billingsley actually believed he was in imminent
danger of death or great bodily injury. (See Manriquez, supra,
37 Cal.4th at p. 582 [no evidence the defendant actually believed
he was in imminent, as opposed to future, danger, where the
defendant said he “‘had heard some threats’” that the victim
wanted to kill him].) Thus, there was no substantial evidence to
support a self-defense instruction. Because both self-defense and
imperfect self-defense require a subjective fear of imminent harm


2     Billingsley does not argue the trial court should have
instructed the jury on self-defense because he relied on that
defense at trial. (See Manriquez, supra, 37 Cal.4th at p. 581.)




                                 12
(Butler, supra, 46 Cal.4th at p. 868), the trial court did not err in
denying Billingsley’s requests to instruct the jury on self-defense
or imperfect self-defense.
       The cases Billingsley cites are readily distinguishable. In
People v. Elize (1999) 71 Cal.App.4th 605 the court held the trial
court erred by refusing to instruct on self-defense where “a jury
could find from the evidence presented that defendant was
sought out and attacked by two angry women much larger than
he, that he was being beaten with pipes, that this beating
accounted for his broken wrist, that one of the women tried to
take his handgun, and that he struggled with that woman while
the other continued to beat him.” (Id. at pp. 615-616.) There was
no similar evidence in this case. In People v. Villanueva (2008)
169 Cal.App.4th 41 the court held substantial evidence supported
an instruction on self-defense where the defendant testified the
victim threatened to kill the defendant earlier in the day, the
defendant believed the victim was armed, and the victim
attempted to run over the defendant with his van just before the
defendant shot the victim through the van’s window. (Id. at
p. 52.) Again, there is no comparable evidence of any such
imminent danger to Billingsley.3


3      Billingsley also cites People v. Ceja (1994) 26 Cal.App.4th
78, disapproved on another ground in People v. Blakeley (2000) 23
Cal.4th 82, 91, and People v. Viramontes (2001) 93 Cal.App.4th
1256, for the proposition that the trial court had a duty to
instruct on voluntary manslaughter even if that instruction
contradicted his theory of the case. Those cases, however, still
required substantial evidence of imperfect self-defense or
provocation to trigger the trial court’s duty to instruct. (See Ceja,
at p. 85; Viramontes, at p. 1262.) Because there was no




                                 13
      B.    The Trial Court Did Not Abuse Its Discretion in
            Denying Billingsley a Continuance To Find “Snap”

             1.     Relevant Proceedings
       When James and Milton first reported the shooting on
December 8, 2014, Milton did not tell the deputies she picked up
Snap before they encountered Murdock. Milton first mentioned
Snap on January 20, 2015, at the preliminary hearing. After that
hearing, the deputies asked Milton and James to identify Snap,
but Milton and James “were hesitant” to reveal Snap’s identity
and refused to disclose any information about Snap because they
“did not want to get him involved.”
       On June 6, 2016 counsel for Billingsley and the prosecutor
announced they were ready for trial, and the trial court set the
trial to begin June 8, 2016. Following several continuances for
pretrial motions, on June 9, 2016 counsel for Billingsley asked
the trial court for assistance in identifying Snap. The court
asked the prosecutor to produce James for questioning about
Snap’s identity. On the morning of June 13, 2016 James
identified Snap as Trevon Brown, but he did not provide Brown’s
address or date of birth.
       That afternoon, before jury selection began, counsel for
Billingsley requested a trial continuance “based on the new
information [he] just learned [that] morning” about Snap.
Counsel explained: “I was given a very common name, and when


substantial evidence of imminent danger in this case, we do not
consider Billingsley’s argument that his theory of the case at trial
(that he had no knowledge of any shooting) did not relieve the
trial court of its duty to instruct on imperfect self-defense.




                                14
I ran that name for conflicts, it came back with over 60 hits. . . .
I’m requesting more information on this person, such as an
address, date of birth, phone number. I would like some time to
follow-up with this person. If the court reads the prelim[inary
hearing] transcript, according to one of the witnesses who was an
eyewitness, who was actually the driver of the car, she says this
person whose name I just learned was present and was in the car
at the time of the shooting. . . . So based on that, that’s new
information. I believe this is a very important witness. It’s at
least a percipient witness to the events. I would like more time
to investigate that and find out if there is a conflict.”
       The People objected. The prosecutor said that, because he
did not intend to call Snap as a witness, there was no conflict
between the public defender’s office and Snap. He conceded,
however, that both he and counsel for Billingsley learned Snap’s
identity that morning because James had not previously revealed
Snap’s real name.
       The trial court denied the request for a continuance. The
court reasoned that Snap’s identity was not information counsel
had not known or could not have obtained earlier because Milton
disclosed Snap’s possible involvement in the incident at the
preliminary hearing. The court also noted the People did not
intend to call Snap as a witness, and counsel for Billingsley had
not explained what information, if any, Snap had “that would be
used by the defense.” Counsel for Billingsley stated he had asked
the prosecutor to follow up with Milton after the preliminary
hearing to find out Snap’s real name, but counsel did not receive
that information from the prosecutor until that morning. The
court again denied the request for a continuance.




                                15
            2.     Billingsley Did Not Exercise Due Diligence in
                   Attempting To Secure Snap’s Attendance at
                   Trial
      “‘A motion for continuance should be granted only on a
showing of good cause.’” (People v. Wilson (2005) 36 Cal.4th 309,
352 (Wilson); see § 1050, subd. (e) [“[c]ontinuances shall be
granted only upon a showing of good cause”].) “To support a
continuance motion to secure a witness’s attendance at trial, a
showing of good cause requires a demonstration, among other
things, that the defendant exercised due diligence to secure the
witness’s attendance.” (Wilson, at p. 352; accord, People v.
Jenkins (2000) 22 Cal.4th 900, 1037; see People v. Johnson (2013)
218 Cal.App.4th 938, 942 [“‘[p]articularly, when the party seeks a
continuance to secure a witness’s testimony, the party must show
that he exercised due diligence to secure the witness’s
attendance, that the witness would be available to testify within
a reasonable time, that the testimony was material and not
cumulative’”].)
      We review the trial court’s denial of a continuance motion
for abuse of discretion. (Wilson, supra, 36 Cal.4th at p. 352;
People v. Smith (2016) 245 Cal.App.4th 869, 873; see People v.
Beames (2007) 40 Cal.4th 907, 920 [a trial court abuses its
discretion in denying a motion for a continuance “only when the
court exceeds the bounds of reason, all circumstances being
considered”].) Billingsley has the burden of establishing the trial
court abused its discretion by denying the requested continuance.
(See People v. Beames, at p. 920; Mendez v. Superior Court (2008)
162 Cal.App.4th 827, 834.)
      “‘[F]ailure to attempt to secure the attendance of a witness
for whom a continuance is sought indicates a lack of due




                                16
diligence.’” (Baustert v. Superior Court (2005) 129 Cal.App.4th
1269, 1277.) Even if Billingsley had presented evidence Snap
could have been available within a reasonable time to provide
material, noncumulative testimony, Billingsley failed to use due
diligence to identify Snap after learning at the preliminary
hearing of his existence. Counsel for Billingsley told the trial
court he “ask[ed] the People to follow up with [Milton or James]
to find out the name of . . . Snap,” but there is no evidence that, in
the 18 months between the preliminary hearing in January 2015
and the start of trial in June 2016, Billingsley made any effort to
learn Snap’s name or locate him. No diligence is not due
diligence. (See, e.g., People v. Lewis (2006) 39 Cal.4th 970, 1035-
1036 [defendant failed to show due diligence where counsel had
two years to prepare for trial, announced he was ready for trial,
and then requested a continuance to locate a witness]; Wilson,
supra, 36 Cal.4th at p. 352 [defendant failed to show due
diligence in attempting to obtain impeachment witnesses where
the defendant knew the identities of the prosecution’s witnesses
“long before” his request for a continuance, but did not subpoena
them or prepare to have them available as rebuttal witnesses];
People v. Henderson (2004) 115 Cal.App.4th 922, 934 [prosecutor
failed to exercise due diligence when, “aside from mailing a
subpoena, nothing was done before the date of the scheduled
preliminary hearing to contact the victim and secure his
testimony”].)
       Billingsley argues any failure to exercise due diligence “was
solely attributable to the alleged victims in this case.”
Billingsley, however, does not explain why he did not seek the




                                 17
assistance of the court or the prosecutor sooner.4 For example,
the record shows counsel for Billingsley made 18 court
appearances in this case between the January 2015 preliminary
hearing and the June 2016 trial. During any one of these
hearings he could have requested the same assistance he received
from the trial court on June 6, 2016 in questioning James about
Snap’s identity.
       Billingsley’s efforts also fell far short of the diligence the
defense attorneys exercised in the cases he cites. In People v.
Buckey (1972) 23 Cal.App.3d 740 the trial court abused its
discretion in denying a short continuance to accommodate a
doctor’s schedule where “the witness was clearly identified; the
evidence to be offered by means of his testimony was not merely
material, it was critical, and highly necessary, especially in view
of the court’s insistence on excluding [the defendant’s] testimony
on his sole defense; and the diligence shown by counsel in
contacting [the doctor] that very evening, and promising his
appearance for the next court day was all that could be
reasonably desired.” (Id. at p. 744.) In U.S. v. Flynt (9th Cir.
1985) 756 F.2d 1352 the Ninth Circuit held the district court
abused its discretion in denying a motion for a continuance of a
contempt trial where the defendant, incarcerated in a different
state, filed an ex parte application and two habeas petitions in

4     Indeed, in his reply brief, Billingsley acknowledges “the
record is unclear [regarding] the extent to which trial counsel
attempted to locate Snap, [but] any attempts to do so would have
clearly been futile.” Yet it was counsel for Billingsley who
ultimately set in motion the events that led James to reveal
Snap’s identity, which suggests earlier attempts by counsel would
have been successful, not futile.




                                 18
connection with his efforts to procure a witness, and his attorney
identified three expert witnesses on the defendant’s mental
capacity, all of whom stated they could not perform an adequate
evaluation of the defendant within the time constraints imposed
by the district court. (Id. at pp. 1359-1360.) Billingsley did not
come close to demonstrating the kind of diligence that the
defendants in these cases exercised or the materiality of the
absent witnesses’ potential testimony that the defendants in
these cases demonstrated.
      Because Billingsley did not demonstrate he exercised due
diligence to secure Snap’s attendance at trial, he did not show
good cause for a continuance. (See Wilson, supra, 36 Cal.4th at
p. 352; People v. Jenkins, supra, 22 Cal.4th at p. 1037.) The trial
court did not abuse its discretion or violate Billingsley’s federal
constitutional rights in denying Billingsley’s request for a
continuance. (See People v. Alexander (2010) 49 Cal.4th 846, 935;
Wilson, at p. 352.)5

       C.    Billingsley Is Entitled to a New Sentencing Hearing
       When the trial court sentenced Billingsley, former section
12022.5, subdivision (c), and former section 12022.53, subdivision
(h), prohibited the court from striking those enhancements, and
section 12022.53, subdivision (f), required the court to impose the


5     Because the trial court did not err either in instructing the
jury or in denying Billingsley’s request for a trial continuance,
there was no cumulative error. (See People v. Cordova (2015)
62 Cal.4th 104, 150 [no cumulative prejudicial error where “there
was no error to accumulate”].)




                                19
enhancement under that statute with the longest term.6 (See
People v. Fuentes (2016) 1 Cal.5th 218, 226; People v. Gonzalez
(2008) 43 Cal.4th 1118, 1127; People v. Oates (2004) 32 Cal.4th
1048, 1057; People v. Thomas (1992) 4 Cal.4th 206, 208, 211;
People v. Jones (2007) 157 Cal.App.4th 1373, 1383.) As noted, the
trial court imposed the 20-year enhancement under section
12022.53, subdivision (c), on the attempted murder conviction,
imposed a term of one year four months (one third the middle
term of four years) on one of the assault with a firearm
convictions under section 12022.5, subdivision (a), and stayed
imposition of the enhancement under section 12022.5,
subdivision (a), on the other assault with a firearm conviction.
       The Legislature amended section 12022.5, subdivision (c),
and section 12022.53, subdivision (h), effective January 1, 2018,
to give the trial court discretion to strike, in the interest of
justice, a firearm enhancement imposed under those two
statutes.7 (See Sen. Bill No. 620 (2017-2018 Reg. Sess.), Stats.
2017, ch. 682, (S.B. 620) (Senate Bill 620); People v. Watts (Apr.
11, 2018, B270324) ___ Cal.App.5th ___, ___ [2018 WL 1737213].)
The People concede sections 12022.5, subdivision (c), and


6     Section 12022.53, subdivision (f), provides: “If more than
one enhancement per person is found true under this section, the
court shall impose upon that person the enhancement that
provides the longest term of imprisonment.”

7      Section 12022.5, subdivision (c), and section 12022.53,
subdivision (h), now both provide: “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.”




                                20
12022.53, subdivision (h), as amended, apply retroactively to
Billingsley, whose sentence was not final before those provisions
came into effect. (See People v. Watts, supra, ___ Cal.App.5th
at p. ___ [2018 WL 1737213 at p. 13]; People v. Woods (2018)
19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018)
19 Cal.App.5th 660, 679.)
       In a supplemental brief, Billingsley argues he is entitled to
a new sentencing hearing to give the trial court an opportunity to
exercise discretion to strike the firearm enhancements under
sections 12022.5 and 12022.53. The People argue Billingsley is
not entitled to a new sentencing hearing because the trial court
indicated it would not have stricken any firearm enhancement
even if it had discretion to do so. Billingsley has the better
argument.

             1.    Relevant Proceedings
       At the sentencing hearing counsel for Billingsley asked the
court to stay the 20-year enhancement under section 12022.53,
subdivision (c). The trial court accurately observed that, at the
time, the court did not have discretion to strike or stay that
firearm enhancement. The court explained: “My understanding
of [section] 12022.53, specifically [subdivision] (h), is the court
has no such authority, and, quite frankly, this is not the kind of
case I would stay the gun allegation. I have no say as to the
actual penalty for that particular allegation. It’s set at 20 years,
but as far as staying or striking the allegation, the court does not
have authority to do so, nor would it do so under the
circumstances of this case.”
       Counsel for Billingsley then asked the court to allow
Billingsley to serve the 20-year enhancement concurrently with




                                 21
his sentence for attempted murder. The court impliedly rejected
that request, stating that “unfortunately, obviously, the
consequences are severe in this case.” The court noted that
Billingsley shot eight times in the direction of three or four people
and that the evidence supported the inference that a bullet
fragment or some other object propelled by gunfire struck James.
The court summarized the facts of the case and described them as
“tragic” and “unfortunate, in many ways, for Mr. Billingsley.”
The court then imposed a term of 20 years for the enhancement
under section 12022.53, subdivision (c).

            2.      The Trial Court Did Not Clearly Indicate It
                    Would Not Have Exercised Its Discretion To
                    Strike the Firearm Enhancements
       The People, citing People v. Gutierrez (1996) 48 Cal.App.4th
1894, 1896 (Gutierrez), argue “[r]emand is not appropriate
because the trial court here indicated that it would not strike a
firearm enhancement, and no reasonable court would strike
[Billingsley’s] firearm enhancements.” In Gutierrez, while the
appeal was pending in the Court of Appeal, the Supreme Court in
a different case held that trial courts have discretion to strike a
serious or violent felony conviction under the three strikes law.
(Ibid.) The Court of Appeal in Gutierrez held that resentencing
was required “unless the record shows that the sentencing court
clearly indicated that it would not, in any event, have exercised
its discretion to strike the allegations.” (Ibid.) The court in
Gutierrez concluded remand would not serve any purpose in that
case because the trial court had “stated that imposing the
maximum sentence was appropriate. [The trial court] increased
[the defendant’s] sentence beyond what it believed was required




                                 22
by the three strikes law, by imposing the high term . . . and by
imposing two additional discretionary one-year enhancements.”
(Ibid.) Here, the record does not “clearly indicate” the court
would not have exercised discretion to strike the firearm
allegations had the court known it had that discretion. Although
the trial court noted the facts of the case “could have been a lot
worse,” the court did not express an intention to impose the
maximum possible sentence. The court also expressed concern
the consequences for Billingsley’s sentence were “unfortunate”
and “tragic.” (See People v. McDaniels (Apr. 17, 2018, A149015)
___ Cal.App.5th ___, ___ [2018 WL 1804952 p. 13] [“a remand is
required unless the record shows that the trial court clearly
indicated when it originally sentenced the defendant that it
would not in any event have stricken a firearm enhancement”].)
       Moreover, although the court suggested it would not have
stricken the firearm enhancement under section 12022.53,
subdivision (c), even if it had that discretion, the court was not
aware of the full scope of the discretion it now has under the
amended statute. “‘Defendants are entitled to sentencing
decisions made in the exercise of the “informed discretion” of the
sentencing court. [Citations.] A court which is unaware of the
scope of its discretionary powers can no more exercise that
“informed discretion” than one whose sentence is or may have
been based on misinformation regarding a material aspect of a
defendant’s record.’” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391; see id. at pp. 1391-1392 [remand was appropriate because
the record did not clearly indicate the trial court would have
imposed the same sentence had it been aware of the full scope of
its discretion after a change in the law].) And the trial court gave
no indication whether it would exercise discretion to strike the




                                23
firearm enhancement under section 12022.5 if it had such
discretion.
       When the trial court sentenced Billingsley, section
12022.53, subdivisions (f) and (h), prohibited the court from
striking the firearm enhancements under section 12022.53, and
required the court to impose the 20-year enhancement under
subdivision (c). (See People v. Gonzalez, supra, 43 Cal.4th
at pp. 1122-1123 [“after a trial court imposes punishment for the
section 12022.53 firearm enhancement with the longest term of
imprisonment, the remaining section 12022.53 firearm
enhancements . . . that were found true for the same crime must
be imposed and then stayed”].) The trial court here should have
the opportunity under the new law to strike the 20-year
enhancement under section 12022.53, subdivision (c), or the 10-
year enhancement under section 12022.53, subdivision (b), or
both. (See § 12022.53, subd. (f) [referring to “more than one
enhancement . . . under this section”]; see also Assem. Com. on
Pub. Safety, Rep. on Sen. Bill 620 (2017-2018 Reg. Sess.) June 13,
2017, p. 6 [“[u]nder [Senate Bill] 620, the trial court retains the
ability, if not the legal obligation, to continue imposing firearm
enhancements where the additional punishment is warranted”];
Sen. Com. on Pub. Safety Rep. on Sen. Bill 620 (2017-2018 Reg.
Sess.) April 25, 2017, p. 7 [under Senate Bill 620 “relief would be
available to a deserving defendant, while a defendant who
merited additional punishment for the use of a firearm in the
commission of a felony would receive it”]; cf. People v. Robbins,
supra, 19 Cal.App.5th at pp. 678-679 [remand was appropriate
for the trial court to exercise its discretion in deciding whether to
strike one or both firearm enhancements under section 12022.53,




                                 24
subdivision (d)].)8 The trial court should also have an
opportunity to strike enhancements under section 12022.5,
subdivision (a), one of which the court imposed and the other the
court stayed.




8      In People v. Almanza (Apr. 9, 2018, B270903) ___
Cal.App.5th ___, ___ [2018 WL 1704193], the court declined to
remand the matter to give the trial court an opportunity to
exercise discretion under section 12022.53, subdivision (h), to
strike the firearm enhancement. The court stated “the question
is whether there is any reasonable probability the trial court
would exercise its discretion to strike the enhancements so as
to justify remanding the matter.” (Almanza, at p. ___ [2018
WL 1704193 at p. 7].) The court answered the question in the
negative, concluding there was “no reasonable probability the
trial court would exercise its discretion in favor of Almanza.”
(Id. at p. 8.) As explained, we do not believe the “no reasonable
probability” standard is the proper one in this situation. The
exercise of discretion is not a matter of probabilities. (See
People v. McDaniels, supra, ___ Cal.App.5th at p. ___ [2018
WL 1804952 at p. 14] [reviewing court should “allow the trial
court to decide in the first instance whether these enhancements
should be stricken, even when the reviewing court considers it
reasonably probable that the sentence will not be modified on
remand”].)




                               25
                          DISPOSITION

      The judgment of conviction is affirmed. The sentence is
vacated. The matter is remanded for the limited purpose of
allowing the trial court to exercise its discretion under sections
12022.5, subdivision (c), and 12022.53, subdivision (h).




             SEGAL, J.

We concur:




             PERLUSS, P. J.




             ZELON, J.




                                 26
