Opinion
F087373
10-07-2024
THE PEOPLE, Plaintiff and Respondent, v. JERRY BOWEN, Defendant and Appellant.
Douglas C. Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF180086B. Gregory A. Pulskamp, Judge.
Douglas C. Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION THE COURT [*]
INTRODUCTION
In 2021, a jury convicted Jerry Bowen (appellant) of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); count 1) with a personal use of a firearm enhancement (§ 12022.53, subd. (b)) and a gang enhancement (§ 186.22, subd. (b)(1)), carrying a loaded and unregistered firearm (§ 25850, subds. (a), (c)(6); count 3) with a gang enhancement (§ 186.22, subd. (b)(1)), and other misdemeanor offenses. The trial court sentenced appellant to 22 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
In appellant's initial appeal, we reversed the true finding for the gang enhancements in light of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1-5), but otherwise affirmed the judgment. (People v. Bowen (June 26, 2023, F083347) [nonpub. opn.].) We remanded the matter to give the People the option of retrying the enhancements, and for resentencing.
Following remand, the People elected not to retry appellant, and the matter proceeded to resentencing. At the resentencing hearing, the trial court denied appellant's request to strike the use of a firearm enhancement, and resentenced appellant to 12 years in state prison.
While the instant appeal was pending, the Supreme Court held in People v. McDavid that when a trial court strikes a section 12022.53 firearm enhancement, it has the discretion "to impose a lesser included, uncharged enhancement authorized elsewhere in the Penal Code." (People v. McDavid (2024) 15 Cal.5th 1015, 1021 (McDavid).) Appellant argues the matter must be remanded for resentencing because the trial court did not have the benefit of McDavid, and thus, was unaware of the scope of its sentencing discretion. Respondent concedes, and we agree. We vacate appellant's sentence and remand the matter for resentencing. In all other respects, we affirm.
BACKGROUND
I. Appellant's 2021 Conviction and Sentence.
The evidence produced at trial is of limited relevance to the issues raised on appeal, so we only summarize it briefly. In short, the victim responded to an internet listing posted by appellant offering to purchase used video games. The victim drove to the agreed upon meeting place, and appellant and his codefendant approached the victim's car and asked to see the video games. After the codefendant finished looking through the games, appellant drew a handgun and pointed it at the victim's face. Appellant searched through the victim's pockets. Appellant then reached into the victim's car and took his handgun from the center console. (People v. Bowen, supra, F083347.)
At sentencing, on count 1, the trial court imposed the low term of two years, plus 10 years for the use of a firearm enhancement (§ 12022.53, subd. (b)), and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), for a total of 22 years in state prison. The court stayed the sentence on count 3 and the associated gang enhancement pursuant to section 654, subdivision (a), and ordered the sentences on the misdemeanor offenses to be served concurrently to count 1.
II. Initial Appeal, Remand, and Resentencing.
In appellant's initial appeal, we reversed the gang enhancement findings on counts 1 and 3 in light of Assembly Bill No. 333, which amended section 186.22 to modify the evidentiary showing to sustain gang offenses and enhancements. We vacated appellant's sentence and remanded the matter for possible retrial, and for resentencing. (People v. Bowen, supra, F083347.)
Following remand, the People declined to retry the gang enhancements, and the matter proceeded to resentencing.
During the resentencing hearing, appellant requested that the trial court exercise its discretion to strike the section 12022.53, subdivision (b), use of a firearm enhancement, based on appellant's performance in state prison programing. The People countered that striking the enhancement was inappropriate given the severity of appellant's conduct.
The trial court concluded the low term on count 1 was appropriate based on appellant's youth and lack of prior criminal history. However, the court denied the request to strike the use of a firearm enhancement, stating: "That's a serious crime anytime you basically use a weapon and in this case used it in a way where he directly put it in somebody's face and pointed it right at them. It's a serious event so I don't want to minimize that either so I will deny the request to strike that enhancement."
The court then resentenced appellant to 12 years in state prison. The newly imposed sentence was consistent with the prior sentence, less the 10-year gang enhancement.
DISCUSSION
I. The Trial Court Was Unaware of Its Sentencing Discretion Under McDavid to Impose a Lesser Included, Uncharged Enhancement from a Statute Other Than Section 12022.53. We Remand the Matter for Resentencing.
Appellant contends the trial court was unaware of its discretion to strike the section 12022.53, subdivision (b), firearm enhancement, and impose a lesser included uncharged enhancement under section 12022.5, subdivision (a). Respondent concedes that the trial court was unaware of the scope of its discretion because it did not have the benefit of McDavid's clarification that a trial court has the discretion to impose "a lesser included, uncharged enhancement under a law other than section 12022.53." (McDavid, supra, 15 Cal.5th at p. 1030.) We agree with the parties that the trial court was unable to exercise informed sentencing discretion, and we remand the matter for resentencing.
Sentencing decisions are subject to the abuse of discretion standard. (People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Hicks (2017) 17 Cal.App.5th 496, 512.) Criminal defendants" 'are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) Thus, "[a]n abuse of discretion occurs when the trial court ... is unaware of its discretion." (In re White (2020) 9 Cal.5th 455, 470.)
Effective January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stat. 2017, ch. 682, § 2) amended section 12022.53, subdivision (h) to give trial courts discretion to "strike or dismiss" enhancements imposed under this section "in the interest of justice pursuant to Section 1385." Four years later, the Supreme Court decided People v. Tirado, holding that section 12022.53, as amended by Senate Bill No. 620, permits a trial court to strike a charged section 12022.53 enhancement and impose a lesser included uncharged section 12022.53 enhancement instead. (People v. Tirado (2022) 12 Cal.5th 688, 700.)
In April 2024, while the instant appeal was pending, the Supreme Court held in McDavid that this discretion is not limited to imposition of a lesser included, uncharged enhancement under section 12022.53. (McDavid, supra, 15 Cal.5th at p. 1030.) Instead, a trial court may impose a lesser included, uncharged enhancement under another statute if supported by facts that were alleged and found true. (Ibid.)
Appellant was resentenced in November 2023. At that time, McDavid was still pending review, and the appellate courts were divided on whether imposition of an enhancement outside of section 12022.53 was permissible. (Compare People v. Lewis (2022) 86 Cal.App.5th 34, 36 with People v. Fuller (2022) 83 Cal.App.5th 394, 397 and People v. Johnson (2022) 83 Cal.App.5th 1074, 1080.) Thus, the trial court resentenced appellant without the benefit of McDavid's authoritative resolution of the issue, which applies retroactively to all cases pending on direct review. (People v. Guerra (1984) 37 Cal.3d 385, 400; Burris v. Superior Court (2005) 34 Cal.4th 1012, 1023.) As there is no indication that the trial court considered whether to impose a lesser included enhancement outside of section 12022.53, we cannot conclude the court "made its sentencing decision with awareness of the full scope of [its] discretion" set forth in McDavid. (Gutierrez, supra, 58 Cal.4th at pp. 1390-1391.) Accordingly, an abuse of discretion occurred.
The appropriate remedy is "to remand for resentencing unless 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.'" (Gutierrez, supra, 58 Cal.4th at p. 1391.) Respondent agrees, as do we, that the record lacks any indication how the trial court would have sentenced appellant had it been aware of the full scope of its discretion under McDavid. We therefore conclude remand for resentencing is appropriate.
Because we conclude the matter must be remanded for resentencing, we need not address appellant's related claim that defense counsel was ineffective for failing to request the trial court strike the section 12022.53, subdivision (b) enhancement to impose a section 12022.5, subdivision (a) enhancement.
At resentencing, the trial court shall exercise its discretion whether to strike the section 12022.53, subdivision (b), firearm enhancement to impose a lesser included uncharged enhancement. Appellant suggests the court should have considered whether to impose a section 12022.5, subdivision (a) enhancement, which was not charged in the information. We agree that section 12022.5, subdivision (a) is a lesser included enhancement, as it" 'would be applicable in any case' in which a section 12022.53, [subdivision (b)] enhancement applies." (People v. Fialho (2014) 229 Cal.App.4th 1389, 1399.) However, we note that the trial court's discretion is not limited to section 12022.5, subdivision (a), but extends to any lesser included, uncharged enhancement "supported by facts that have been alleged and found true." (McDavid, supra, 15 Cal.5th at p. 1030.) We express no opinion how the trial court should exercise its discretion at resentencing.
DISPOSITION
Appellant's sentence is vacated, and the matter is remanded for resentencing. During resentencing, the trial court shall exercise its discretion whether to strike the section 12022.53, subdivision (b) enhancement to impose a lesser included, uncharged enhancement in accordance with McDavid. Following resentencing, the court shall forward a new abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
[*]Before Hill, P. J., Levy, J. and Meehan, J.