Opinion
B300438
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. RAJOHN CHARLES DOUGLAS, Defendant and Appellant.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA103562) APPEAL from a judgment of the Superior Court of Los Angeles County, Yvonne T. Sanchez, Judge. Affirmed as modified, with directions. Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Rajohn Charles Douglas was convicted by jury in 2008 of three counts of robbery (Pen. Code, § 211) and two counts of commercial burglary (§ 459), arising out of two incidents, with the finding that he personally discharged a firearm during one of the robbery-burglary incidents (§ 12022.53, subd. (c)). In a bifurcated proceeding, defendant admitted he had suffered one prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to an overall term of 28 years four months.
Unspecified references to statutes are to the Penal Code.
We affirmed the judgment of conviction in defendant's first appeal. (People v. Douglas (June 23, 2009, B211221 [nonpub. opn.] (Douglas I).) In his second appeal, we remanded the matter to afford defendant an evidentiary hearing on his Proposition 47 petition to reduce his burglary convictions to misdemeanors. (People v. Douglas (Feb. 15, 2019, B288354 [nonpub. opn.] (Douglas II).) At the hearing, the court granted defendant's petition but denied his oral motion to strike the firearm enhancement on his robbery conviction in count 4. (§ 12022.53, subd. (c)).
Defendant appeals from the denial of his motion to strike, contending the court abused its discretion because it did not state on the record whether it could impose an unpled lesser enhancement. He also requests, and the People agree, that we strike the prior prison term enhancement pursuant to recently enacted Senate Bill No. 136.
We find no error in the trial court's denial of the motion to strike the firearm enhancement. We modify the judgment to strike the one-year enhancement imposed pursuant to section 667.5, subdivision (b). As modified, we affirm the judgment.
BACKGROUND
Following a jury trial in 2008, defendant was convicted of three counts of second degree robbery (§ 211, counts 1, 2, 4) and two counts of second degree commercial burglary (§ 459, counts 3, 6), based on crimes committed at two jewelry stores in Artesia (counts 1-3) and in Glendale one month later (counts 4, 6). In counts 4 and 6, the jury found true the allegation that defendant personally discharged a firearm (§ 12022.53, subd. (c)). In a bifurcated proceeding, defendant admitted he had suffered a prior prison term for possession of a firearm by a felon (former § 12021, subd. (a)(1)), which at the time constituted a prior conviction within the meaning of section 667.5, subdivision (b). He was sentenced to an overall term of 28 years four months.
This is defendant's third appeal from the judgment. In our first opinion, we rejected his contention that insufficient evidence supported his convictions on counts 1 through 3 based on his participation in the robberies and burglary of a jewelry store in Artesia. (Douglas I, supra, at p. 1.)
This appeal concerns only defendant's handgun use in the robbery at the Glendale jewelry store, as alleged on count 4. During the commission of that robbery, defendant entered the Glendale jewelry store and brandished a chrome handgun. (Douglas I, supra, at p. 2.) Around the time defendant was pointing the gun at the store owner, defendant called out for his companion to enter the jewelry store. (Ibid.) The companion entered the store and began taking jewelry from the store. (Ibid.) Defendant was also gathering jewelry when the store owner pushed the alarm button. (Ibid.) Though defendant's companion was able to flee the store, defendant soon realized he had been locked inside the store. (Ibid.) To break the front glass door to free himself, defendant fired four or five shots into the door. (Ibid.)
Following our affirmance in Douglas I, defendant filed a Proposition 47 petition to reduce the felony robbery and burglary convictions to misdemeanors on the ground that the stolen items were valued less than $950. The trial court denied the petition without holding an evidentiary hearing. In our second opinion, we concluded the refusal to hold an evidentiary hearing constituted error. (Douglas II, supra, at p. 1.)
"Proposition 47, enacted by California voters in November 2014, reduced certain felony theft-related offenses to misdemeanors when the value of the stolen property does not exceed $ 950. The initiative also created a procedure to allow defendants who previously suffered felony convictions for offenses that are now classified as misdemeanors under Proposition 47 to petition the trial court to reduce their convictions to misdemeanors and to resentence them, if they are still serving time on their convictions. (Pen. Code, § 1170.18, subds. (a), (f).)" (People v. Van Orden (2017) 9 Cal.App.5th 1277, 1282.)
On remand, the trial court held an evidentiary hearing and reclassified the burglary convictions (counts 3 and 6) as misdemeanor petty thefts (§ 490.2). Following imposition of sentence in the reclassified counts, defendant requested that the court exercise its discretion to strike the section 12022.53, subdivision (c) enhancement on the robbery conviction in count 4. The court denied the motion, stating that it would "not modify it. These are armed robberies. He was found guilty at trial. I would not exercise my discretion." In light of its rulings, the court left intact defendant's overall sentence of 28 years four months based on the three counts of robbery (§ 211), firearm enhancement (§ 12022.53, subd. (c)), and prior prison term (§ 667.5, subd. (b)).
On counts 3 and 6, the court sentenced defendant to 180 days in county jail, which it stayed pursuant to section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
The Court Did Not Abuse its Discretion by Denying Defendant's Motion to Strike the Firearm Enhancement
Defendant contends the trial court abused its discretion by denying his motion to dismiss the section 12022.53, subdivision (c) enhancement because "the record does not affirmatively disclose" that the court understood it could impose an unpled lesser firearm enhancement under subdivisions (b) or (a) of section 12022.53. He also contends the court abused its discretion because nobody was shot during the robbery in count 4.
Courts are currently split on the issue of whether a sentencing court may impose unpled lesser enhancements. (Compare People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) [courts may impose unpled lesser enhancements] with People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado) [courts may not], rev. granted Nov. 13, 2019; People v. Garcia (2020) 46 Cal.App.5th 786 [same]; People v. Yanez (2020) 44 Cal.App.5th 452 [same].)
Despite the parties' positions (defendant maintains that we must follow Morrison; the People, Tirado) we do not take a side in this appeal. The resentencing court denied defendant's motion to strike the firearm enhancement after Morrison was published, but before Tirado and the cases following it were published. We presume the court followed Morrison as the only controlling law at the time. (People v. Bradford (2010) 187 Cal.App.4th 1345, 1355; People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Indeed, the resentencing court's statement that it was refusing to exercise its discretion to "modify" the enhancement demonstrates that it believed it had discretion to impose a lesser enhancement, but was declining to do so. Thus, assuming that Morrison correctly states the law, the court understood its discretion under that decision.
Defendant asserts the resentencing court erred by not stating on the record all of the options available to it when ruling on his motion, such as upholding the section 12022.53, subdivision (c) enhancement, striking the subdivision (c) enhancement, or imposing an unpled lesser enhancement under subdivisions (b) or (a). However, the court was not required to engage in such a particularized, on-the-record analysis. (See Morrison, supra, 34 Cal.App.5th at p. 225 ["after the publication of our decision today, the usual presumption that a sentencing court correctly applied the law will apply and will ordinarily prevent remand where the record is silent as to the scope of a court's discretion"].) Assuming Morrison is correct, the resentencing court was not required to explain its ruling in detail.
In light of defendant's use and discharge of a handgun during the robbery, the trial court did not act outside the bounds of its discretion by denying the oral motion to strike the firearm enhancement. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) Absent an affirmative showing in the record to reflect otherwise, we presume the sentencing court considered the relevant sentencing factors listed in the California Rules of Court when determining whether to strike the firearm enhancement. (People v. Pearson (2019) 38 Cal.App.5th 112, 117; see Cal. Rules of Court, rules 4.428(b) [striking enhancements]; 4.410 [general objectives in sentencing]; 4.421 [factors in aggravation]; 4.423 [factors in mitigation].)
Nothing in the record affirmatively demonstrates that the trial court did not consider the relevant factors it was required to consider. Despite the brevity with which it denied defendant's oral motion, the resentencing court stated that defendant had been convicted of armed robbery. The statement demonstrates the court considered the circumstances of the crime, which included planning and sophistication; the use of a firearm during the commission of the robbery; the threat of great bodily harm; and violent conduct that indicates a serious danger to society. (Cal. Rules of Court, rule 4.421(a)(1), (a)(8), (b)(1).) That the court did not expressly enumerate the factors in aggravation does not affirmatively establish that it did not consider them.
Citing People v. Sperling (2017) 12 Cal.App.5th 1094, at page 1100, defendant maintains that the use of a firearm should not be considered a factor in aggravation because it is a required element for all personal discharge enhancements under section 12022.53, subdivision (c). The Sperling decision lends no support to defendant's contention. (See Sperling, supra, at p. 1100 [defendant forfeited sentencing claim because he did not object at the time of sentencing].)
The One-Year Prior Prison Term Enhancement Should Be Stricken
One month after defendant filed a notice of appeal in this matter, the Governor signed Senate Bill No. 136, which amended section 667.5, subdivision (b), to restrict the circumstances under which a one-year sentence enhancement may be imposed for a prior prison term. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Defendant received a one-year prior prison term enhancement after admitting he had served a prior prison term for possessing a firearm (former § 12021, subd. (a)(1)). As amended, section 667.5, subdivision (b), restricts the imposition of a one-year prior prison term enhancement to prior prison terms served for a sexually violent offense.
We agree with the parties that Senate Bill No. 136 applies retroactively in this case. (See People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks) [courts "have upheld the modification of every aspect of a defendant's sentence by a resentencing court following a successful petition to recall only part of that sentence under Proposition 47"].)
Because the maximum possible sentence was imposed, we need not remand the matter so that the trial court may exercise its sentencing discretion anew. (Buycks, supra, 5 Cal.5th at p. 896, fn. 15.) We therefore strike the section 667.5, subdivision (b) enhancement, and direct the trial court to cause to be prepared an amended abstract of judgment reflecting this modification.
DISPOSITION
The judgment is modified to strike the one-year enhancement imposed pursuant to section 667.5, subdivision (b). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and defendant's resulting overall sentence of 27 years four months imprisonment. The court shall forward a certified copy of the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.