Filed 1/30/20; on transfer from Supreme Court
                                CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SIXTH APPELLATE DISTRICT


THE PEOPLE,                                           H045157
                                                     (Monterey County
        Plaintiff and Respondent,                     Super. Ct. No. SS160299)

        v.

ALEXANDER WINN,

        Defendant and Appellant.
        A jury found defendant Alexander Winn guilty of first degree murder for the
stabbing death of David Derrington after Derrington had Winn and his wife evicted from
their home. The jury also found true a deadly weapon enhancement, and Winn admitted
he had previously served five prior prison terms. The trial court imposed a total term of
31 years to life in prison, including five one-year terms for the prior prison term
enhancements.
        Winn initially raised two claims on appeal. First, he contended the trial court
erred by admitting a photograph of the victim taken prior to the offense, while the victim
was still alive. To the extent Winn’s trial counsel failed to lodge certain objections to the
photograph, Winn argued counsel provided ineffective assistance. Second, he contended
the trial court erred during a post-verdict Marsden1 hearing by failing to inquire into
Winn’s claim that his counsel deprived him of the opportunity to testify in his defense.
        In our prior opinion, we found no prejudicial error from those claims, and we
affirmed the judgment. The Supreme Court then granted Winn’s petition for review and


        1
            People v. Marsden (1970) 2 Cal.3d 118.
transferred the matter back to this court with directions to vacate our prior opinion and
reconsider the matter in light of Senate Bill No. 136 (SB 136). SB 136 amended Penal
Code section 667.5, subdivision (b) to allow imposition of a one-year enhancement for a
prison prior term only if the prior conviction is for a sexually violent offense. (Stats.
2019, ch. 590, § 1, eff. Jan. 1, 2020.) Winn contends we must apply the new law
retroactively. The Attorney General concedes, and we accept the concession. We will
strike the prior prison term enhancements, modify the sentence, and affirm the judgment
as modified.
                        I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Procedural Background
        The prosecution charged Winn with willful, deliberate, premeditated murder.
(Pen. Code, § 187, subd. (a).) The information further alleged Winn personally used a
deadly weapon in the commission of the offense, and that he had previously served five
prior prison terms. (Pen. Code, § 12022, subd. (b)(1); former Pen. Code, § 667.5, subd.
(b).)
        The case proceeded to jury trial in April 2017. Winn admitted the prior prison
term allegations. The jury found Winn guilty of first degree murder and found the deadly
weapon allegation true.
        The trial court imposed a total sentence of 31 years to life in prison, consisting of a
term of 25 to life for count 1, with a consecutive one-year term for the deadly weapon
enhancement and five consecutive one-year terms for the prior prison term
enhancements.




                                               2
   B. Facts of the Offense
       1. Overview
       At the time of the offense, Winn was married to Traci Derrington, who lived with
Winn at a house in Salinas.2 Winn was charged with killing Traci’s ex-husband, David
Derrington, in February 2016 after Derrington had Winn and Traci evicted from their
house. Traci’s marital separation agreement with Derrington had required her either to
sell the Salinas house and share the proceeds with Derrington, or to give Derrington
possession of the house, whereupon he would compensate her. But Traci failed to
comply with the agreement and continued to occupy the house, causing Derrington to
obtain a writ of possession in January 2016. Soon thereafter, a deputy sheriff evicted
Winn and Traci from the house. About two weeks after the eviction, Winn returned to
the house and stabbed Derrington to death. At trial, Winn did not dispute that he killed
Derrington; rather, Winn argued that he did so in self-defense.
       2. Events Preceding the Killing
       The prosecution presented several witnesses who testified about Winn’s state of
mind in the days preceding the eviction and stabbing. Terry Rockwood, the lawyer
retained by Derrington to obtain the writ, spoke with Winn on the phone in early January
2016. Rockwood testified that Winn was angry, “not terribly polite,” and “didn’t have a
good attitude about moving out of the house.” Alice Taylor, Derrington’s girlfriend of
12 years, was at the house on the day of the eviction. Taylor testified that she was sitting
on a retaining wall in front of the house when Winn told her, “I have a knife, and I know
how to use it.” Taylor and Derrington felt threatened, and Taylor called the police that
afternoon to report it.




       2
           We refer to Traci Derrington by her first name to avoid confusion.


                                              3
           Suzanne Smith, Traci’s friend, testified that “[t]ensions were rising” before the
eviction because “Traci didn’t want to leave her house. She basically wanted David
dead.” Smith testified that Winn said, referring to Derrington, “That fucker needs to die.”
           Cameron Bush, a longtime friend of Derrington’s, lived in the same neighborhood
where the house was located. Traci would cut Bush’s hair, and he had known Winn for
about five or six years. About two months before the killing, Bush and a friend were
driving home when they saw Winn standing at a bus stop, whereupon they stopped to
pick him up. Winn got in the back seat of the car and asked them if they could get him a
gun. Winn said he needed a gun due to the property dispute with Derrington, and Winn
added that he was going to “handle business” and kill Derrington. Bush did not get a gun
for Winn. Bush admitted he had multiple prior felony convictions, and he was in custody
at Monterey County jail when he contacted the police with information about the killing.
In exchange for his cooperation, the police offered to help get him out of jail and to make
sure a warrant for his arrest was recalled.
           Teresa Davis was a friend of Traci’s, and Traci was her hair stylist. Davis testified
that she had a phone call with Winn in which he blurted out, “I’m going to kill the mother
fucking kids’ dad,” referring to Derrington. Davis told Traci about it, but Traci “laughed
it off.”
           3. The Homicide
           On February 21, 2016, about two weeks after Winn and Traci were evicted from
the house, Traci called 911 to report the stabbing. Traci told the operator that she and
Winn had come to the property to pick up some of their belongings, but that Winn and
Derrington “just got in a big fight” and Winn had stabbed Derrington. In the background,
Winn stated, “He attacked me,” “He tried to attack me,” and, “He shouldn’t have thrown
that chair at me.” Traci told the operator Winn had stabbed Derrington with a military
knife that was six to eight inches long.



                                                 4
       The police arrived soon thereafter and took Winn into custody. They did not see
any injuries anywhere on his hands or body. There was a large knife with blood on it
sitting on the trunk of a nearby car. Derrington was lying on the ground with multiple
bloody holes in his shirt around the center of his shirt and the left side of his body. His
eyes and mouth were open, and there was frothy red blood coming out of his mouth. The
police could not detect any pulse.
       The forensic pathologist who autopsied Derrington found 19 stab wounds, three
incised wounds, and a small skin puncture on his body. He had also suffered “about five
minor abrasions to his upper extremities and a couple of contusions to his left toe.”
Derrington had been stabbed in the back multiple times and had suffered wounds on his
forearm and wrist consistent with defensive wounds.
                                        II. DISCUSSION
   A. Admission of the Victim’s Photograph
       Winn contends the trial court erred by admitting a photograph taken of the victim
while he was still alive. Winn argues the photograph was irrelevant and prejudicial, such
that its admission violated Evidence Code sections 210 and 352, and violated his federal
due process rights. He further contends his trial counsel provided ineffective assistance
by failing to lodge sufficient objections on the last two grounds. The Attorney General
contends the trial court did not abuse its discretion, and that Winn forfeited his claims
under Evidence Code section 352 and federal due process by failing to object. Even
assuming the trial court erred or trial counsel was ineffective, the Attorney General
argues that Winn suffered no prejudice.
       1. Background
       Winn moved pretrial to exclude a photograph taken of David Derrington when he
was still alive. The photograph consisted of a portrait-style headshot showing the victim
smiling while wearing a dress shirt, tie, and glasses. Winn’s trial counsel filed a written
motion arguing the photograph was irrelevant under Evidence Code sections 210 and

                                              5
350. Counsel stipulated that Derrington was alive just prior to the stabbing, and counsel
argued the photograph was thereby inadmissible under People v. Hendricks (1987) 43
Cal.3d 584 (photograph of victim should have been excluded where the victim’s identity
was not in dispute) and People v. Ramos (1982) 30 Cal.3d 553 (Ramos) (same; reversed
on other grounds).
       At a hearing on the matter, the prosecution argued the photograph was relevant to
show what Derrington looked like before the killing. The prosecution also pointed out
that the photograph showed Derrington wearing glasses, and a pair of crushed glasses
were found at the scene next to his body. Finally, the prosecution argued that several
witnesses—e.g., Derrington’s attorney, Terry Rockwood—would testify about their past
interactions with Derrington, and they could use the photograph to identify who they
were testifying about. The trial court ruled that the photograph was relevant for that
purpose. Winn’s counsel offered to stipulate that the witnesses were talking about Winn,
but the court ruled that the prosecution was entitled to prove his identity using the
photograph. Accordingly, the trial court denied the motion to exclude.
       2. Legal Principles
       “ ‘Relevant evidence’ means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) We apply the abuse of discretion standard of review to the
admission of evidence over relevance objections. (People v. Kipp (2001) 26 Cal.4th
1100, 1123.)
       To establish ineffective assistance of counsel, Winn must show that counsel’s
performance was deficient and that he was prejudiced by the deficiency. (People v.
Ledesma (1987) 43 Cal.3d 171, 216-217.) To prove prejudice, Winn bears the burden to
show a reasonable probability that, but for his trial counsel’s errors, the result would have
been different. (Id. at pp. 217-218.) A reasonable probability is one “ ‘sufficient to

                                              6
undermine confidence in the outcome.’ ” (Id. at p. 218, quoting Strickland v. Washington
(1984) 466 U.S. 668, 693-694.)
       3. Winn Suffered No Prejudice from Admission of the Photograph
       In support of his claim under Evidence Code section 210 (relevance), Winn relies
on Ramos, supra, 30 Cal.3d 553, and People v. Poggi (1988) 45 Cal.3d 306, 323 (Poggi).
Both cases held that trial courts erred by admitting photographs showing the victim alive
before a homicide where the photographs were irrelevant to any disputed issue. The
Attorney General relies on People v. Weaver (2001) 26 Cal.4th 876, 934 (no abuse of
discretion to admit gruesome photographs of homicide victim); People v. Boyette (2002)
29 Cal.4th 381, 424 (photographs of murder victims while they were alive is not
necessarily inadmissible); People v. Harris (2005) 37 Cal.4th 310, 331 (no error in
admission of video showing victim while still alive); People v. DeSantis (1992) 2 Cal.4th
1198, 1230 (photograph of victims while alive was relevant to identity); and People v.
Osband (1996) 13 Cal.4th 622, 677 (Osband) (no error in admission of photograph of
victim while alive). Winn contends those cases are distinguishable, and he argues his
case more closely resembles Ramos and Poggi.
       As the California Supreme Court has admonished, “[W]e have repeatedly
cautioned against the admission of photographs of murder victims while alive unless the
prosecution can establish the relevance of such items. [Citations.] Otherwise, there is a
risk that the photograph will merely generate sympathy for the victims.” (Osband, supra,
13 Cal.4th at p. 677.) To comply with this stricture, the trial judge should carefully
consider the actual relevance of photos of murder victims while alive, and, if such
evidence is indeed admissible, state the grounds on the record, thereafter exercising
vigilance to restrain counsel from the use of the photos for a purpose beyond that for
which they were admitted.
       With this admonition in mind, we have concerns about the manner in which the
prosecution used the photograph and the trial court’s failure to ensure it would be used

                                             7
only for admissible purposes. Given there was no dispute that Derrington was the
decedent, this evidence had minimal probative value. The underlying events took place
in a small community wherein the identity of the victim was known. Furthermore, the
prosecution’s use of the photograph went beyond the purposes for which the trial court
admitted it. The court admitted the evidence for the prosecution’s witnesses to establish
that Derrington was the person to whom the witnesses had spoken. But the prosecutor
used the photograph at the start of his opening statement, telling the jury to “meet David
Derrington on one of his better days,” while referencing the photo. Given that defense
counsel had explicitly argued that the photograph could be used in an inflammatory
fashion, the trial court should have limited the use of the evidence to comply with the
court’s grounds for admitting it.
       Nonetheless, we find no prejudice in the trial court’s admission of the photo
because the evidence against Winn was overwhelming. There was no dispute that he
stabbed Derrington multiple times, and his claim of self-defense was not credible. He
had no defensive wounds, and little evidence to support self-defense apart from his own
self-serving statements. Moreover, Winn had an obvious motive to attack Derrington,
and the prosecution presented multiple witnesses who testified to Winn’s malicious state
of mind in the days preceding the killing. Derrington’s lawyer testified that Winn was
angry about the eviction. Derrington’s girlfriend testified that Winn told her, on the day
of the eviction, “I have a knife, and I know how to use it.” She reported it to the police.
Traci’s friend Suzanne Smith quoted Winn as stating, “That fucker needs to die.”
Cameron Bush testified that Winn was looking for a gun to “handle business” with
Derrington, and that he said he would kill Derrington. And Teresa Davis heard
Derrington tell her, “I’m going to kill the mother fucking kids’ dad,” referring to
Derrington. Winn argues that the jury might have questioned the credibility of these
witnesses, but we do not find it reasonably probable that the jury would have reached a
more favorable outcome in the absence of any asserted error. (See Ramos, supra,

                                              8
30 Cal.3d at p. 578 [erroneous admission of victim’s photograph while alive was not
prejudicial given the strength of the evidence]; Poggi, supra, at p. 323 [same].)
       As for Winn’s claims under the federal due process clause and Evidence Code
section 352, the Attorney General accurately points out that Winn lodged no objections
on these grounds, thereby forfeiting the claims. Winn asserts ineffective assistance of
counsel for the failure to object, but for the reasons above—the overwhelming evidence
of premeditated murder—we conclude he cannot show he was prejudiced, as there was
no reasonable likelihood the jury would have reached a more favorable outcome the
evidence been excluded. Even assuming Winn’s federal due process rights were violated,
the strength of the evidence was such that the record establishes any error was harmless
beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. We
therefore conclude these claims are without merit.
   B. The Marsden Hearing
       Winn contends the trial court erred by failing to inquire into his allegations during
a post-verdict Marsden hearing at which he asserted his trial counsel had rested without
consulting with Winn about whether he wanted to testify. The Attorney General
contends the court sufficiently inquired into the matter, and that its denial of the motion
was not an abuse of discretion.
       1. Background

       After the jury found Winn guilty, he moved for new counsel under Marsden. In
his written motion, Winn complained that, once the prosecution rested, he had expected
his trial counsel to call an expert witness to testify as a forensic pathologist about “the
effects of extreme perceived threat on the human body.” Winn argued, “I can’t stress
enough that she was the ‘meat’ of my defense,” and added that he never would have
agreed to allow counsel to rest without calling her. He stated, “I was under the
impression that my expert, and probably me, would be testifying” after the prosecution
rested. To Winn’s surprise, however, his trial counsel rested without calling either the

                                               9
expert or Winn to testify, and without conferring with Winn about these decisions. Winn
asserted, “Your honor, I never would have agreed to rest without mounting any defense.
I was shocked and stunned to say the least. I was not allowed to testify on my own
behalf, and didn’t know what to do.” (Underlining in original.)
       The trial court held a hearing on the matter in a closed courtroom outside the
prosecution’s presence. When the court inquired of Winn, he reiterated that the expert
witness was “the heaviest part of my defense, possibly besides my own testimony,” and
explained that trial counsel made the decision not to let the expert testify after he and
counsel agreed the expert would testify. He set forth the details of his communications
with counsel concerning the expert, and asserted that counsel “failed to confer with me
about the most important decision of the whole trial.” Winn explained that he had
expected the expert to testify but that counsel rested and offered no defense without
consulting Winn. He added, “I never got a chance to testify on my own behalf or
anything.” Winn asserted that he never would have agreed to these decisions, “and the
fact remains that he made decisions and didn’t let my expert testify nor me testify and
rested the case without me putting any defense. And he made those decisions, but they
weren’t his to make; they were mine.” On these grounds, Winn contended he had been
deprived of adequate representation and “deprived of a fair chance to answer the charges
against me.”
       The trial court responded by summarizing Winn’s claims as putting forth “three
points”: that he wanted the expert to testify; that Winn felt he was not involved in the
decision not to have her testify; and that all this resulted in inadequate representation.
Winn responded that he agreed with these points. The court did not ask about Winn’s
claim that he was deprived of the chance to testify. The court then advised Winn as
follows: “At this stage of the proceedings, once there has been a conviction, you will
have appellate rights. And if you decide to appeal, you will be able to file an appeal and
a new attorney will be appointed and some of the issues that you brought up here will be

                                              10
brought up. [¶] The issue that a Marsden hearing is about is whether or not [defense
counsel] has -- is representing you appropriately now. And when I say ‘now,’ I mean for
the hearings that are before this Court today and until I finally impose sentence. [¶] And
reasons that the Court would grant a Marsden would be if you thought that he was
incompetent and was not doing his job. I haven’t heard that from you. [¶] And I’m
talking about the things that are going forward as far as sentencing and a new trial motion
that’s pending. [¶] Another reason would be that you just don’t—are not able to
communicate. You’re at odds with each other so much so that he’s not hearing you and
you’re not hearing him, and you just can’t get along at all. And I’m not hearing that
either.” The court added that the motion “[d]oesn’t have to do with what has happened
kind of changing the way things happened already. The things that have happened
already, if you want to appeal, them can be appealed by you to the Court of Appeal.”
       The court then asked defense counsel for a statement. Counsel declined to
respond, stating, “I don’t think that I can make any statements that are actually relevant to
the Court’s granting or denying of a Marsden Motion in order to ensure that his rights are
protected on appeal. Unless the Court has a specific question of me, I’m prepared to
submit to the Court, unless the Court wants information from me for this ruling.” The
court made no further inquiry.
       As to the decision not to introduce expert testimony, the court recounted
discussions the parties held before the close of evidence, and the court explained that
“based on the way the district attorney presented his case, it made it so that that doctor’s
testimony could not be allowed in.” As to Winn’s relationship with trial counsel, the
court found that Winn was able to communicate well with counsel and respected counsel,
but that “some of the ways things went down during the trial were not the way you would
have wanted them to go down. [¶] And those are things that would be appellate issues as
opposed to reasons to fire Mr. O’Keefe at this time.” On this basis, the court denied the
motion.

                                             11
       2. Legal Principles

       When a defendant seeks to discharge appointed counsel and asserts inadequate
representation, the trial court must permit the defendant to explain the basis of his or her
contention and to relate specific instances of the attorney’s inadequate performance.
(People v. Johnson (2018) 6 Cal.5th 541, 572.) “Depending on the nature of the
grievances related by defendant, it may be necessary for the court also to question his [or
her] attorney.” (People v. Turner (1992) 7 Cal.App.4th 1214, 1219.) “[I]nquiry into the
attorney’s state of mind is required only in those situations in which a satisfactory
explanation for counsel’s conduct or attitude toward his client is necessary in order to
determine whether counsel can provide adequate representation.” (People v. Penrod
(1980) 112 Cal.App.3d 738, 747.) “It is the very nature of a Marsden motion, at
whatever stage it is made, that the trial court must determine whether counsel has been
providing competent representation. Whenever the motion is made, the inquiry is
forward-looking in the sense that counsel would be substituted in order to provide
effective assistance in the future. But the decision must always be based on what has
happened in the past.” (People v. Smith (1993) 6 Cal.4th 684, 694-695 (Smith).) “[T]he
trial court should appoint substitute counsel when a proper showing has been made at any
stage. A defendant is entitled to competent representation at all times, including
presentation of a new trial motion . . . .” (Id. at p. 695.) “The error is reversible unless
the record shows beyond a reasonable doubt that the error did not prejudice the
defendant.” (People v. Eastman (2007) 146 Cal.App.4th 688, 697 (Eastman) [disagreed
with on other grounds by People v. Sanchez (2011) 53 Cal.4th 80, 84].)
       3. Winn Suffered No Prejudicial Error in the Denial of His Marsden Motion

       Winn does not argue that any decision not to call the expert witness constituted
meritorious grounds for his Marsden motion. His contention is that the trial court erred
by failing to inquire about his claim that trial counsel deprived him of the right to testify
on his own behalf by resting without conferring with Winn about it. He also argues that

                                              12
the trial court erred by focusing on the adequacy of trial counsel’s present or future
representation.
       Winn’s arguments have merit on these points. The Attorney General does not
dispute that “[e]very criminal defendant is privileged to testify in his own defense . . . .”
(Harris v. New York (1971) 401 U.S. 222, 225.) Nor does the Attorney General dispute
that Winn had the right to make that decision. “Although tactical decisions at trial are
generally counsel’s responsibility, the decision whether to testify, a question of
fundamental importance, is made by the defendant after consultation with counsel.”
(People v. Carter (2005) 36 Cal.4th 1114, 1198.) Winn’s assertion that his trial counsel
failed to consult with him about his desire to testify raised a serious question about
whether his counsel provided constitutionally adequate representation. The trial court
should have questioned counsel about this claim. The court’s focus on counsel’s present
or future conduct was incomplete; if trial counsel’s performance was deficient at an
earlier stage of the trial, Winn had the right to new counsel for the purposes of sentencing
or moving for a new trial. (Smith, supra, 6 Cal.4th at p. 695.)
       Winn contends that we should therefore conditionally reverse and remand the case
for a new hearing on the Marsden motion. Indeed, this type of error requires reversal
unless “the record shows beyond a reasonable doubt that the error did not prejudice the
defendant.” (Eastman, supra, 146 Cal.App.4th at p. 697.) We conclude, however, that
this is that rare case that does not compel reversal under that standard. For the reasons set
forth above, the evidence against Winn was overwhelming. There was no dispute that he
stabbed Derrington numerous times, and the case for self-defense was weak, with no
forensic support whatsoever. The eviction provided an obvious motive for the attack, and
numerous witnesses testified to evidence of premeditation in the form of Winn’s verbal
threats in the days preceding the killing. Moreover, had Winn testified, the prosecution
likely would have introduced evidence of his numerous prior convictions, which included
multiple felonies relevant to impeach his credibility.

                                              13
       Accordingly, while we conclude the trial court erred by failing to inquire further
about Winn’s claim his counsel deprived him of the right to testify, we find the error
harmless beyond a reasonable doubt.

   C. Senate Bill No. 136 Requires Us to Strike the Enhancements for Prior Prison
      Terms
       In our prior opinion, we found no prejudicial error in Winn’s claims and we
affirmed the judgment. After our decision was final, SB 136 took effect and Winn
petitioned the Supreme Court for review seeking the benefit of the newly enacted law.
The Supreme Court granted the petition and transferred the matter back to this court with
directions to vacate our opinion and reconsider the matter. We then vacated our prior
opinion and requested supplemental briefing from the parties regarding the effect of SB
136.
       SB 136 amended Penal Code section 667.5, subdivision (b) such that a one-year
enhancement for a prior prison term shall be imposed only if the prior term was for a
sexually violent offense. The newly-amended subdivision now provides: “Except where
subdivision (a) applies, where the new offense is any felony for which a prison sentence
or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is
imposed or is not suspended, in addition and consecutive to any other sentence therefor,
the court shall impose a one-year term for each prior separate prison term for a sexually
violent offense as defined in subdivision (b) of Section 6600 of the Welfare and
Institutions Code, provided that no additional term shall be imposed under this
subdivision for any prison term served prior to a period of five years in which the
defendant remained free of both the commission of an offense which results in a felony
conviction, and prison custody or the imposition of a term of jail custody imposed under
subdivision (h) of Section 1170 or any felony sentence that is not suspended.” (Pen.
Code, § 667.5, subd. (b).)




                                            14
       The trial court imposed five one-year terms under the prior version of section
667.5. None of the prior prison terms was imposed for a sexually violent offense as
defined by the amended version of section 667.5. Winn now contends he is entitled to
retroactive benefit of the amended section 667.5, such that we should strike the five one-
year prison terms. The Attorney General concedes the merit of this claim.
       The concession is well-taken. Generally, a statute applies prospectively unless
otherwise stated in the language of the statute, or when retroactive application is clearly
indicated by legislative intent. (People v. Brown (2012) 54 Cal.4th 314, 319-320.)
However, “[w]hen the Legislature has amended a statute to reduce the punishment for a
particular criminal offense, we will assume, absent evidence to the contrary, that the
Legislature intended the amended statute to apply to all defendants whose judgments are
not yet final on the statute’s operative date.” (Id. at p. 323, citing In re Estrada (1965)
63 Cal.2d 740.) By eliminating the one-year enhancement for prior prison terms that
were not imposed for sexually violent offenses, the newly amended section reduces the
punishment for such offenses.
       Because Winn’s conviction is not yet final, he is entitled to the retroactive benefit
of the change in law. Furthermore, because the trial court imposed the maximum
possible sentence, we need not remand the matter for resentencing. (People v. Lopez
(2019) 42 Cal.App.5th 337, 342.) Accordingly, we will strike the enhancements, modify
the sentence, and affirm the judgment as modified.
                                      III.   DISPOSITION
       The five one-year prison terms previously imposed under Penal Code section
667.5, subdivision (b) are stricken, and the sentence is modified to an aggregate term of
26 years to life in state prison. Upon issuance of the remittitur, the trial court shall send
an amended abstract of judgment to the Department of Corrections. The judgment is
affirmed as modified.



                                              15
                           _______________________________
                           Greenwood, P.J.




I CONCUR:




______________________________________
 Danner, J.




People v. Winn
No. H045157
BAMATTRE-MANOUKIAN, J., Concurring.
       I concur in the judgment. I write separately to express my view that the trial court
properly limited the prosecution’s use of the photograph of David Derrington taken while
he was alive.
       The trial court ruled that the prosecution could use one photograph of Derrington
alive (the prosecution sought to use two) for the prosecution witnesses to identify the
person they were testifying about, finding that “it would be reasonable” for the
prosecution’s witnesses “to be able to identify who [they are] talking about.” The court
determined that none of the crime scene or autopsy photos were “useful to be able to
identify someone. So a photo such as People’s [exhibit] 1 or 2 would be useful for that
purpose and would be relevant for that purpose.” The court ruled that the photographs
were not relevant “just to say that [Derrington] was alive at some point and then no
longer alive at another.” The prosecution chose to use exhibit 2, a headshot of
Derrington (6 ¼ in. x 7 ½ in.), showing him in a dress shirt and tie.
       I believe the trial court’s ruling was a proper exercise of its discretion. (See
People v. Anderson (2018) 5 Cal.5th 372, 402 [“ ‘The trial court has broad discretion
both in determining the relevance of evidence and in assessing whether its prejudicial
effect outweighs its probative value.’ [Citation.]”]; People v. Boyette (2002) 29 Cal.4th
381, 424 (Boyette) [“Trial courts have wide discretion in admitting such photographic
evidence . . . . Photographic evidence of murder victims while they were alive is not
necessarily inadmissible”].)
       Contrary to the trial court’s ruling, the prosecution used exhibit 2 during its
opening statement, telling the jury to “meet David Derrington on one of his better days.”
Defendant did not object. The prosecution then used the photograph in conformance with
the trial court’s ruling, for identification purposes during the testimony of its first witness.
       Counsel has a duty to object to the unauthorized use of evidence and the trial court
has a duty to appropriately manage the proceedings and ensure that evidence is used only
for admissible purposes. To the extent Derrington’s photograph was used for purposes
beyond that for which it was admitted, I agree with the majority that defendant was not
prejudiced. (See Boyette, supra, 29 Cal.4th at p. 424.)




                                            2
                 ___________________________________________
                 BAMATTRE-MANOUKIAN, J.




People v. Winn
H045157
Trial Court:                             Monterey County Superior Court
                                         Superior Court No.: SS160299

Trial Judge:                             The Honorable Julie R. Culver


Attorney for Defendant and Appellant     Gene D. Vorobyov
ALEXANDER WINN:                          under appointment by the Court
                                         of Appeal for Appellant




Attorneys for Plaintiff and Respondent     Xavier Becerra,
THE PEOPLE:                                Attorney General of California

                                           Lance E. Winters,
                                           Chief Assistant Attorney General

                                           Jeffrey M. Laurence,
                                           Senior Assistant Attorney General

                                           Seth K. Schalit,
                                           Supervising Deputy Attorney
                                           General

                                           Berit G. Fitzsimmons
                                           Deputy Attorney General




People v. Winn
H045157
