Filed 5/2/18

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH L. BILLINGSLEY,

Defendant and Appellant.

 B279929

 (Los Angeles County

 Super. Ct. No. YA091690)

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 darkskinned, 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 selfdefense 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 selfdefense 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 lesserincluded 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 selfdefense 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 selfdefense “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.”

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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 

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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 

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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, 

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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”].)

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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.

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