Opinion
E070623
09-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JASON MICHAEL SCHLIG, Defendant and Appellant.
Ava R. Stralla, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF10001755) OPINION APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Jason Schlig appeals the sentence entered after remand from our prior decision in his case, which reversed his convictions for two counts of attempted murder and one count of second degree murder, but affirmed his conviction for discharging a firearm at an occupied vehicle. On remand, the People elected not to retry Schlig on the second degree murder charge and our remittitur therefore modified the conviction to manslaughter. The trial court then sentenced Schlig to a determinate term of 7 years plus an indeterminate term of 25 years to life for a firearm enhancement under Penal Code section 12022.53, subdivision (d). Schlig appeals his new sentence. Finding no arguable issues, we affirm.
I
FACTUAL BACKGROUND
The District Attorney for Riverside County charged Jason Schlig with murdering Todd Brown in the first degree (Pen. Code, § 187; count 1, unlabeled statutory citations refer to this code), attempting to murder two other victims (§§ 664, 187; counts 2-3), and discharging a firearm at an occupied vehicle (§ 246; count 4). The People alleged he discharged a firearm in committing counts 1 through 3 (§§12022.53, subd. (c), 1192.7, subd. (c)(8)) and personally used a firearm in committing count 4 (§§ 667, 1192.7, subd. (c)(8)). They alleged he personally discharged a firearm when he fired into the truck and proximately caused Brown's death. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).)
A jury found Schlig guilty of murdering Brown in the second degree (a lesser included offense of count 1), attempting to murder the other two victims without premeditation, discharging a firearm at an occupied vehicle, and found true the firearm allegations. By reaching those verdicts, the jury rejected Schlig's self-defense and heat of passion defenses. The trial court sentenced Schlig to a total indeterminate prison term of 35 years to life and Schlig appealed.
We reversed in part and remanded. We held the trial court improperly admitted evidence Schlig participated in an unrelated beating, improperly excluded evidence Brown had used his truck as a weapon against another member of Schlig's motorcycle club, and improperly instructed the jury Schlig had no right to defend himself if he was the aggressor. We concluded it was reasonably probable the jury would have found Schlig intended to defend himself against Brown when he fired bullets near the two surviving victims, and therefore did not have the intent to kill them, as required for the two counts of attempted murder. We therefore reversed the judgment of conviction as to those convictions. We also concluded, absent the errors, it is reasonably probable the jury would have found Schlig acted in the heat of passion when he shot Brown and reversed the judgment of conviction of the second degree murder. Because the heat of passion defense has no effect on the conviction for discharging a firearm into an occupied motor vehicle, we affirmed the judgment of conviction on count four.
We remanded to the trial court for further proceedings. We permitted the People to retry Schlig for second degree murder, but provided our remittitur would be deemed to modify the verdict after a statutory period, reducing the conviction from second degree murder to voluntary manslaughter. In that event, we directed the trial court to resentence Schlig. (People v. Schlig (June 8, 2017, E057723) 2017 WL 2472696, *45.)
On January 12, 2018, the People elected not to retry Schlig on count one but to resentence him. The defense requested and the court ordered a presentence report, and the court scheduled a hearing for February 16, 2018, which was continued to April 6, 2018.
On April 6, 2018, defense counsel requested another continuance to prepare a memorandum to explain the court had the discretion not to impose the firearm enhancement. The court denied the motion for continuance, assumed it had the discretion to strike the firearm enhancement, and heard argument from the parties regarding sentencing.
The court considered the probation report, statements from the hearing and the prior sentencing hearing, and noted it credited statements Schlig made about changing his life while in prison. The court found Schlig ineligible for probation as a matter of law as well as ineligible based on the seriousness and violence of the offense and his prior criminal history. The court noted Schlig's criminal history, violations of probation and parole, and state prison sentences.
The court found in the circumstances of the offense several aggravating factors: (1) he held a position of leadership and dominance and induced others to participate, (2) the offense involved planning, sophistication, and professionalism, (3) he engaged in violent conduct and posed a serious danger to society, (4) his prior convictions were numerous and increased in seriousness, and (5) he had served time in prison and failed on parole multiple times. The court found no mitigating factors.
The court deemed count four—shooting at an occupied vehicle (§ 246)—the principal count, and imposed the upper term of seven years plus a consecutive 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. For voluntary manslaughter (§ 192, subd. (a)), the court imposed the 11-year upper term plus a consecutive 10 years for the section 12022.5, subdivision (a) firearm enhancement, and stayed the sentence under section 654.
The court refused to exercise its discretion under section 12022.53, subdivision (h) to strike or dismiss the firearm enhancements. The court said, "My concern is quite serious in terms of Mr. Schlig's violent disposition. He's in an environment where his life is controlled now, which he's being redirected, which is good, but unfortunately his life when he was outside of that control was one that was violent and unsafe to society, and I'm not striking that punishment." Schlig appeals his sentence.
Later, the trial court amended the abstract of judgment, to remove references to counts two and three and then to change the conviction in count one from second degree murder to voluntary manslaughter, consistent with our disposition in Schlig's first appeal.
II
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting out a statement of the case, and identifying two potential arguable issues. Those are (1) whether the court erred by denying a continuance at the April 6, 2018, resentencing hearing; and (2) whether the court abused its discretion by denying appellant's oral request to strike his section 12022.53, subdivision (d) firearm enhancement, when it referenced two factors in aggravation that differed factually from our prior decision in the case.
We offered Schlig an opportunity to file a supplemental brief, which he chose not to do. The trial court did not abuse its discretion by denying a continuance (People v. Henderson (2004) 115 Cal.App.4th 922, 933) or by refusing to strike the firearm enhancement (People v. McDaniels (2018) 22 Cal.App.5th 420, 424 ["Senate Bill 620 . . . provides that '[t]he court may, in the interest of justice . . . strike or dismiss an enhancement otherwise required to be imposed by . . . section [12022.53]"].) These are not close calls.
In addition, we've conducted an independent review of the record and find no other arguable issues. Counsel's compliance with the Wende procedure and our review of the record have provided Schlig adequate and effective appellate review of his sentence. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.) We therefore affirm the sentence.
III
DISPOSITION
We affirm the sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. FIELDS
J.