Opinion
B298910
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. BERNARD MITCHELL, Defendant and Appellant.
Alex Coolman, 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, David E. Madeo, Deputy Attorney General, and William H. Shin, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA422497) APPEAL from an order of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed. Alex Coolman, 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, David E. Madeo, Deputy Attorney General, and William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.
* * * * * *
In People v. Mitchell (Nov. 1, 2018, B281809) [nonpub. opn.], we remanded this case for resentencing to allow the trial court to consider whether the enhancements for "personal[] use[] [of] a firearm" under Penal Code section 12022.53 should be stricken pursuant to section 1385. The trial court declined to do so. Bernard Mitchell (defendant) appeals the trial court's ruling. We conclude there was no abuse of discretion and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In August 2013, defendant and a companion entered a One West Bank in Los Angeles just after it opened its doors, each with his face obscured and each with a gun. After ordering the bank manager and two tellers to "get on the ground," one robber directed the manager to the vault while the other held the tellers at gunpoint. The robbers got away with $73,740 in cash.
In December 2013, defendant and a different companion entered a different One West Bank in Los Angeles. This robbery proceeded much like the prior robbery as to the three bank employees inside the bank, except the gunmen got away with only $63,800.
Cell phone records put defendant's phone at the time and place of each robbery, and one of the tellers from the December 2013 robbery identified defendant as one of the gunmen.
II. Procedural History
As to the first robbery, the People charged defendant with three counts of second degree robbery (§ 211), and alleged his personal use of a firearm during the robbery (§ 12022.53, subd. (b)), for each of the three victims inside the first bank. As to the second robbery, the People again charged defendant with three counts of second degree robbery, and again alleged his personal use of a firearm during that robbery, as to each of the three victims inside the second bank. As to both robberies, the People further alleged that defendant "took, damaged, and destroyed property of a value exceeding $50,000" (§ 12022.6, subd. (a)(1)). The People also charged defendant with being a felon in possession of a firearm (§ 29800, subd. (a)(1)).
A jury convicted defendant of all six robbery counts and found true all six allegations of the personal use of a firearm as well as the amount taken enhancement. The jury also convicted defendant of being a felon in possession.
The trial court sentenced defendant to 40 years in state prison. Specifically, the court used one of the second degree robbery counts from the first robbery as the principal count and imposed a sentence of 16 years, which was comprised of a high-term base sentence of five years plus 10 years for the personal use of a firearm and one year for the amount taken. For the remaining five robbery counts, the court imposed consecutive sentences of four years and eight months, comprised of a base sentence of one year (calculated as one-third the midterm, three-year base sentence for robbery) plus three years and four months for the personal use of a firearm (calculated as one-third of the 10-year enhancement) plus four months for the amount taken (calculated as one-third of the one-year enhancement). To that, the court added a further consecutive sentence of eight months for the felon-in-possession count (calculated as one-third of the midterm sentence of two years).
Defendant appealed his convictions and sentence. We affirmed his convictions, but ordered stricken the amount taken enhancement for the second robbery because the threshold for the amount taken enhancement is $65,000 (not $50,000), and because the second robbery did not meet this threshold. We also remanded to allow the trial court to exercise its discretion to "strike or dismiss" the personal use of a firearm enhancements under the newly enacted section 12022.53, subdivision (h).
On remand, defendant argued that the "evidence that [he] was actually inside the bank" was "circumstantial," and asked the court to (1) strike the firearm enhancements, or (2) "at least" "perhaps run concurrent" some of those enhancements. The court rejected defendant's second request, stating, "If I do strike that [enhancement], I have discretion to do that completely." The court also rejected defendant's first request, finding no "good cause to strike any firearm enhancement" because this case involved two "takeover robber[ies]" that "caus[ed] great fear to the victims" and because "defendant . . . had two prior[] [felony] convictions at the time of th[ese]" robberies. Consistent with our prior opinion, the court struck the amount taken enhancements as to the second robbery and imposed a 39 year prison sentence.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his motion to dismiss the personal use of a firearm enhancements.
Section 12022.53 imposes an additional, consecutive 10-year prison sentence if a person "personally uses a firearm" "in the commission" of one of several statutorily enumerated felonies. (§ 12022.53, subd. (b).) Recently, our Legislature granted trial courts the discretion to "strike or dismiss" this enhancement "in the interest of justice pursuant to Section 1385." (Id., subd. (h).) Although we review the meaning of this statute de novo (John v. Superior Court (2016) 63 Cal.4th 91, 95), we review a trial court's discretionary decision not to "strike or dismiss" an enhancement solely for an abuse of discretion (e.g., People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony)).
The trial court did not abuse its discretion in declining to "strike or dismiss" the personal use of a firearm enhancements. The court explained why there was not, in its view, "good cause" to reduce defendant's sentence by striking or dismissing those enhancements—namely, due to the violent nature of the robberies and defendant's recidivism. These are entirely proper considerations under section 12022.53, subd. (h) (e.g., People v. Rocha (2019) 32 Cal.App.5th 352, 359 [looking to "individualized considerations pertaining to the defendant and his or her offenses and background"]), and refute the notion that the trial court abused its discretion.
In response, defendant asserts that (1) a trial court abuses its discretion when it is "not 'aware of its discretion' to" strike or dismiss (Carmony, supra, 33 Cal.4th at p. 378); (2) People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) held that a trial court's power to "strike or dismiss" enhancements under section 12022.53, subdivision (h) includes the power to substitute a lesser included enhancement; and (3) the trial court here was not aware that it had the discretion to impose the lesser included enhancement for personal use of a firearm set forth in section 12022.5, subdivision (a). Although the first and third premises of defendant's argument are valid, the second premise is not.
To be sure, Morrison held that a court considering whether to "strike or dismiss" the 25-year enhancement under section 12022.53, subdivision (d) could also modify that enhancement to impose either the 20-year or 10-year enhancements under section 12022.53, subdivisions (c) and (b), respectively, at least if all three enhancements had been originally charged. (Morrison, at pp. 221-225.)
But Morrison is inapt here for two reasons.
First, several courts have rejected Morrison's holding in deference to the plain language of section 12022.53, subdivision (h) that limits a trial court's discretion to "strik[ing]" or "dismiss[ing]" enhancements—not "modifying" them by swapping in lesser included enhancements. (See People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado), review granted Nov. 13, 2019, No. S257658; People v. Yanez (2020) 44 Cal.App.5th 452 (Yanez).) We recently joined ranks with these courts. (People v. Garcia (2020) 46 Cal.App.5th 786, 788, review granted Apr. 22, 2020, No. S260819.)
Second, Morrison does not aid defendant even if we accept it as correct. As we explained in Garcia, supra, 46 Cal.App.5th at p. 792:
"[A] court may instruct a jury on a lesser included offense only if there is substantial evidence from which a rational jury could find that "'the defendant committed the lesser offense, and that he is not guilty of the greater [charged] offense.' [Citations.]" (People v. Whalen (2013) 56 Cal.4th 1, 68.) The same rule ostensibly applies when a court, if so requested, is deciding whether to instruct on a lesser included enhancement." (Italics omitted.)
On the facts of this case, substantial evidence does not support instructing the jury on the lesser included personal use of a firearm enhancement set forth in section 12022.5 because no rational jury could find that defendant engaged in the conduct warranting the lesser included enhancement (that is, personal use of a firearm) but not the greater enhancement (that is, personal use of a firearm in the commission of a robbery (§ 12022.53., subd. (a)(4) [listing "robbery" as one of the offenses triggering the more severe sentencing enhancements set forth in section 12022.53])). That is because it was undisputed that, if defendant personally used a firearm in this case, he was doing it during the commission of the two charged robberies. Put differently, either defendant was one of the gunmen and thus personally used a firearm in each robbery, or he was not. There is no basis for substituting in an enhancement that can qualify as a lesser included enhancement as a legal matter (that is, when a defendant personally uses a firearm but not during the commission of a robbery) when it does not qualify as a lesser included enhancement as a factual matter in this case. (Cf. People v. Fialho (2014) 229 Cal.App.4th 1389, 1398 [applying section 12022.5 as a lesser included enhancement when defendant's conviction is reduced to voluntary manslaughter, which does not qualify for the greater enhancements set forth in section 12022.53].) Defendant resists this conclusion, insisting that "the most critical evidentiary dynamic in this case" is the "equivocal" evidence that he was ever inside the two banks when they were being robbed, but this argument is both an impermissible collateral attack on the jury's findings and unavailing because it does not dispute that a personal use of a firearm occurred during the robberies.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, Acting P.J.
ASHMANN-GERST /s/_________, J.
CHAVEZ