Opinion
C082044
09-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ALAN DUANE DOULPHUS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NCR88402)
Defendant Alan Duane Doulphus pleaded guilty to three counts of robbery, each with an enhancement under Penal Code section 12022.53, subdivision (c) for discharging a firearm, and one count of voluntary manslaughter. Sentenced to an aggregate term of 42 years four months in state prison, he appeals. His sole contention on appeal is that reversal is required to allow the trial court to consider striking the firearm enhancement pursuant to the newly enacted Senate Bill No. 620 (2017-2018 Reg. Sess.). We will remand to allow the trial court to exercise its newfound discretion under Senate Bill No. 620. In all other respects, we affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
This case arose out of a robbery and shooting that occurred at a marijuana farm in Tehama County. Defendant, his brother Chase Doulphus, and Roger Bounnhaseng, each armed with a firearm, entered a trailer on the marijuana farm and bound three workers with duct tape and zip ties. One of the workers broke free and tried to escape by running northwest away from the farm. Defendant fired a rifle at the fleeing victim. Chase also fired several shots from his shotgun, striking and killing the victim. Defendant, Chase, and Bounnhaseng then fled the scene in a car that was loaded with 45 pounds of marijuana. They were apprehended after their car spun off the road at high speed.
For clarity's sake we shall refer to defendant's brother Chase Doulphus by his first name. --------
Defendant, Chase, and Bounnhaseng were charged with numerous felony counts including murder, robbery, assault with a firearm, false imprisonment, and voluntary manslaughter. The court told the parties about its policy of rejecting stipulated sentences after a case had been continued for pretrial three times.
Defendant and Chase accepted plea deals after the third pretrial hearing. As part of the agreement, they pleaded guilty to three counts of robbery, each with an enhancement under section 12022.53, subdivision (c) for discharging a firearm, and one count of voluntary manslaughter. All other counts were dismissed. As it was past the time that a stipulated agreement would be as accepted by the court, the parties agreed that the court could exercise its sentencing discretion without restriction.
At sentencing, defendant argued that he should receive a mitigated term for the robbery conviction, as he had no prior criminal record and was not the individual who fired the fatal gunshot. He also argued that it was codefendant Bounnhaseng who was the mastermind behind the crime. The court rejected his argument and imposed the aggravated term of five years on one of the robbery counts and imposed the 20-year firearm enhancement attached to that count. In imposing the aggravated term, the court found defendant was as involved as his cohorts and had engaged in violent conduct that indicated he is a serious danger to society. All other charges and firearm enhancements were imposed at one-third the middle term. The total aggregate term was 42 years four months. This appeal followed.
Appellate counsel initially filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. On February 26, 2018, appellate counsel filed a supplemental brief seeking remand to permit the trial court to exercise its sentencing discretion and consider striking the firearm enhancement pursuant to the newly enacted Senate Bill No. 620. Because counsel has filed a brief raising a substantive issue, we will not perform independent Wende review. (People v. Woodard (1986) 184 Cal.App.3d 944, 945-947.)
DISCUSSION
Defendant contends remand is appropriate in light of Senate Bill No. 620, which gives trial courts discretion to strike firearm enhancements. The People concede this newly conveyed discretion applies retroactively but maintain no purpose would be served by remand. The People note the trial court denied defendant's request for leniency and imposed the upper term for the principal robbery offense. We agree with defendant that remand is appropriate in this case.
On October 11, 2017, the Governor signed Senate Bill No. 620, effective January 1, 2018, which amends sections 12022.5 and 12022.53 to permit a trial court to strike a firearm enhancement: "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. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1 & 2; see also §§ 12022.5, subd. (c), 12022.53, subd. (h).)
We agree with the parties that Senate Bill No. 620 applies retroactively. If an amended statute "lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies." (In re Estrada (1965) 63 Cal.2d 740, 744; see also People v. Francis (1969) 71 Cal.2d 66, 75-76.) Here, the amendment took effect before defendant's conviction became final and therefore Senate Bill No. 620 applied retroactively. (See People v. Vieira (2005) 35 Cal.4th 264, 306 ["for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].)
We disagree with the People that no purpose would be served by remand. "Generally, when the record shows that the trial court proceeded with sentencing on the erroneous 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.) Here, at sentencing, the trial court lacked discretion as to the firearm enhancement. Under the newly amended section 12022.53, it now has discretion. While the fact the trial court found aggravating factors to impose the upper term of five years (rather than two or three years) is suggestive, it is not the equivalent to adding an additional 33 years four months (the aggregate of the three firearm terms imposed here) and does not foreclose the possibility of the court striking the firearm enhancement. (§§ 211, 12022.53.)
We express no opinion as to how the trial court should exercise its newly granted discretion on remand. We only conclude that, under the circumstances of this case, the trial court should be provided the opportunity to exercise its discretion in the first instance. (See People v. Brown, supra, 147 Cal.App.4th at p. 1228 [noting that it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way].)
DISPOSITION
The matter is remanded to the trial court to consider exercising its discretion under Senate Bill No. 620. In all other respects, the judgment is affirmed.
/s/_________
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Murray, J.