Opinion
G058912
10-23-2020
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. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 postjudgment order of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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"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 [citation]; shooting at a person from a motor vehicle [citation]; two counts of shooting at an inhabited dwelling house [citation]; assault with a semiautomatic firearm on a police officer [citation]; and possession of a firearm by a felon [citation]. The jury further found, with regard to [the counts for attempted premeditated murder of a peace officer, shooting at a person from a motor vehicle, and assault with a semiautomatic firearm on a police officer], defendant personally and intentionally discharged a firearm causing great bodily injury [citation], and with regard to [the count for assault with a semiautomatic firearm], that defendant personally inflicted great bodily injury [citation]. In a bifurcated proceeding, the court found true that defendant suffered a prior serious felony [citation].
"The court sentenced defendant to 60 years to life in prison, consisting of 15 years to life on [the attempted murder count], 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 [Penal Code] section 667, subdivision (a). The sentences on the remaining counts were all consecutive to the sentence on [the attempted murder count], but were stayed pursuant to [Penal Code] section 654." (People v. Bush (Oct. 25, 2019, G056097) [nonpub. opn.], fn. omitted (Bush).)
This is defendant's second appeal from the judgment. In his first appeal, we affirmed the convictions, but we remanded for a resentencing hearing to permit the court to exercise its discretion and determine whether to strike the five-year prior serious felony enhancement under newly enacted legislation that provided courts the discretion to do so. (Stats. 2018, ch. 1013, 2.) On remand, the court decided not to strike the five-year prior serious felony enhancement.
Defendant timely appealed and we appointed counsel to represent him. Counsel did not argue against defendant but advised the court he was unable to find an issue to argue on defendant's behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.
We have examined the entire record and have not found an arguable issue on appeal. Accordingly, we affirm the postjudgment order.
DISCUSSION
The only potential issue in this appeal is whether the court abused its discretion by declining to strike the five-year prior serious felony enhancement under Penal Code section 667, subdivision (a). "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'" (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
In defendant's first appeal, we recited the following 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." (Bush, supra, G056097.)
On remand, after entertaining argument, the court stated, inter alia: "This is the most serious case the court saw. . . . The fact the officer survived is happenstance. This was essentially a point-blank attempt to kill the officer, to assassinate him essentially. . . .
"Upon reflection, the court is going to exercise its discretion not to change the sentence that the court originally imposed for all the reasons I set forth at the time that I imposed his sentence. And so the court understands it has discretion on that point, but I'm not going to change the sentence that the court imposed."
"The officer thought he was going to die. You can hear him [on the audio tape] call for his partner to call his wife, and I'll never forget that."
"I agree with [the prosecutor] that there just were no mitigating factors."
Earlier, the court recounted its recollection of the trial, saying: "Boy, do I remember this crime. And I think I said at the time that I don't think that the court had, in all of its years in criminal, seen a worse crime than this one because it was a police officer who was targeted at point-blank range. And the fact that he wasn't killed really was just happenstance. He was struck seven times.
"There were several other shots, some of which were just barely, I think, the last layer of — I'll always remember that too — the last layer of protection that the officer was wearing. He was wearing his bulletproof jacket; saved his life because he certainly would have died. And again, boy, do I remember it because it's all on audiotape, and you can hear the shots ringing out."
The court noted that while in custody defendant involved himself with the "Human Rights Watch," described as an organization that is able to "distribute gift certificates to people in murder victim family groups," and acknowledged defendant's participation in several rehabilitative activities. But the court also noted that defendant was on active parole at the time of the shooting and that fact was also "important for the court."
The court clearly understood its newfound discretion and exercised it in a manner that was "not arbitrary and capricious" but based on an "'individualized consideration of the offense, the offender, and the public interest.'" (People v. Sandoval, supra, 41 Cal.4th at p. 847.) The court performed as it should. There was no error. Counsel's assessment that there is no arguable issue to raise on appeal was manifestly correct.
DISPOSITION
The postjudgment order is affirmed.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. GOETHALS, J.