Opinion
G056097
10-25-2019
THE PEOPLE, Plaintiff and Respondent, v. MARCOS ALLEN BUSH, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13NF0945) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed and remanded with directions. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Marcos Allen Bush shot at a police officer, struck him multiple times, and, but for the officer's body armor, would likely have killed him. A jury convicted defendant of attempted premeditated murder of a peace officer (Pen. Code, §§ 664, subd. (e), 187, subd. (a); count 1); shooting at a person from a motor vehicle (§ 26100; count 2); two counts of shooting at an inhabited dwelling house (§ 246; counts 3 & 4); assault with a semiautomatic firearm on a police officer (§ 245, subd. (d)(2); count 5); and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 6). The jury further found, with regard to counts 1, 2, and 5, defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and with regard to count 5, that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a bifurcated proceeding, the court found true that defendant suffered a prior serious felony (§ 667, subd. (a)).
All statutory references are to the Penal Code. --------
The court sentenced defendant to 60 years to life in prison, consisting of 15 years to life on count 1, doubled because of a prior strike for a total of 30 years to life, plus a consecutive enhancement of 25 years to life due to the discharge of a firearm causing great bodily injury, plus a five-year enhancement for a prior serious felony under section 667, subdivision (a). The sentences on the remaining counts were all consecutive to the sentence on count 1, but were stayed pursuant to section 654. They included: count 2—14 years, which was double the upper term, plus a 25-year firearm enhancement; count 3—the middle term of 10 years; count 4—the middle term of 10 years; count 5—14 years, which was double the middle term, plus a 25-year firearm enhancement; count 6—six years, which was double the upper term.
While this appeal was pending, Senate Bill No. 1393 (2017-2018 Reg. Sess.) was passed into law, which amended section 1385, effective January 1, 2019, to eliminate the prohibition against striking a five-year enhancement for a prior serious felony under section 667, subdivision (a). As a result, courts now have discretion to strike the five-year enhancement. The amendment applies retroactively to all cases not final on its effective date. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Defendant contends we must remand for the trial court to exercise its discretion. The People contend remand is unnecessary because the court's comments indicate it would not have stricken the enhancement even if it had been aware of its discretion to do so. We conclude the record is not sufficiently clear for us to predict how the court would have exercised its discretion, and thus we remand for the court to do so.
FACTS
On March 17, 2013, around 12:30 a.m., Fullerton Police Department Officer James Boline conducted a traffic stop on a vehicle being driven by defendant. Officer Boline told defendant to put his hands on the wheel and the passenger to put his hands on the dashboard. They both complied. Officer Boline was standing next to the vehicle just to the rear of the driver's door when he instructed defendant to turn off the engine. Defendant reached down to his right side where he apparently grabbed a gun, and started shooting at the officer. Officer Boline was hit several times. He fell to the ground as the vehicle drove away.
Officer Boline suffered four gunshot wounds, one to his right forearm, one to his right upper arm, one to his upper left leg, and one to his right hip. His protective vest had a bullet hole over the heart. The wounds required surgery and Officer Boline spent five days in the hospital, but, fortunately, survived the ordeal.
DISCUSSION
The sole issue on appeal is whether we should remand the matter to the trial court to exercise its discretion regarding whether to strike the 5-year sentencing enhancement for having a prior serious felony under section 667, subdivision (a). Effective January 1, 2019, section 1385 was amended to eliminate the prohibition against striking a five-year enhancement for a prior serious felony under section 667, subdivision (a). (Stats. 2018, ch. 1013, §§ 1-2.) As a result, courts now have discretion to strike the five-year enhancement. The amendment applies retroactively to all cases not final on its effective date. (People v. Garcia, supra, 28 Cal.App.5th at p. 973.)
Where, as here, "the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) "Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (Ibid.; accord, People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) "[U]nless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion,'" the appropriate remedy is to remand for resentencing. (Gutierrez, at p. 1391; accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 425 ["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 [the previously mandatory] enhancement"].)
The People contend that remand would be futile because the court's comments and sentencing decisions indicate it would not have stricken the five-year enhancement. In particular, the People note the court had discretion to strike the firearm enhancement, but chose not to, reasoning, "The court does have discretion as to whether to impose that [gun use enhancement] or not. The court has given that great consideration, but the court is familiar with the evidence in this case, and I certainly recall the recording of gunshots, the officer asking his partner to call his wife. This is a very serious crime. And I just don't think that there's any case that I have on my calendar which more deserves the additional enhancement here." The People also note that the court selected the upper term on counts 2 and 6.
On the other hand, the court selected the middle term on counts 3, 4, and 5, which suggests the court was not simply looking to impose the maximum sentence available. As to counts 3 and 4, shooting at an inhabited dwelling, the court selected the middle term because the striking of nearby buildings was incidental to the shooting of the officer. The court also noted it was "well aware of what significant sentence this is," calling it a "heavy, heavy sentence."
What emerges is an admirably nuanced sentence imposed by the court, which was clearly the product of extensive reflection. The court commented that it imposed the five-year enhancement under section 667, subdivision (a) because it was legally required to do so at the time. Given the nuanced approach the court employed, we prefer not to speculate as to what the court would have done with the five-year enhancement if it had been given discretion to strike it. Accordingly, we will remand with directions for the court to exercise its discretion in that regard.
DISPOSITION
The matter is remanded for the court to exercise its discretion concerning whether to strike the five-year sentencing enhancement pursuant to section 667, subdivision (a). In all other respects, the judgment is affirmed.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. GOETHALS, J.