Chavez

*669 Following a physical altercation involving two groups of men, defendant Salvador Oswaldo Chavez knifed a member of the other group in the back and defendant Daniel Arce Gonzalez shot and killed another member of that group. Chavez and Gonzalez appeal judgments following their jury convictions of second degree murder ( Pen. Code, § 187, subd. (a) ) 1 and assault with a deadly weapon (§ 245, subd. (a) ). On appeal, Chavez contends: (1) the trial court erred by admitting an eyewitness's in-court identification of him that was the result of an unduly suggestive pretrial identification procedure; (2) the court erred by improperly limiting the scope of opinion testimony by his eyewitness identification expert; (3) there is insufficient evidence to support his conviction of second degree murder; and (4) the court erred by instructing with CALCRIM No. 571 on imperfect self-defense or imperfect defense of another but omitting imperfect defense of Gonzalez. Gonzalez joins in Chavez's contentions and also contends: (1) the trial court erred by instructing with CALCRIM No. 3471 on the right of self-defense but omitting language stating that an aggressor who initially uses only nondeadly…

I concur with my colleagues on the issue of retroactivity of Penal Code 1 section 12022.53, subdivision (h). However, I do so *64 by way of application of the inference recently recognized by our Supreme Court in People v. Superior Court ( Lara ) (2018) 4 Cal.5th 299 , 308, footnote 5, 228 Cal.Rptr.3d 394 , 410 P.3d 22 ( Lara ). Based on what I believe to be guidance in Lara , I would abandon application of a "presumption" of retroactivity in Penal Code statutes that reduce sentences. On all remaining issues, I agree with my colleagues.

Relying on In re Estrada (1965) 63 Cal.2d 740 , 48 Cal.Rptr. 172 , 408 P.2d 948 ( Estrada ), *715 People v. Brown (2012) 54 Cal.4th 314 , 142 Cal.Rptr.3d 824 , 278 P.3d 1182 ( Brown ), and recent case law, 2 my colleagues conclude section 12022.53, subdivision (h) must be applied retroactively. These cases, and apparently the majority as well, conclude that in all nonfinal cases, in the absence of evidence to the contrary, courts may presume the Legislature intends a statutory amendment reducing criminal punishment apply retroactively. 3 This is where I part company with my colleagues. There is no such presumption, either in the Penal Code or in…