People v. Rosas CA4/1 ( 2021 )

Filed 3/19/21 P. v. Rosas CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078109
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1200782)
MICHAEL PAUL ROSAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Mac R. Fisher, Judge. Remanded with directions.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and
Respondent.
FACTUAL BACKGROUND1
Defendant Michael Paul Rosas hosted a New Year’s Eve party in the
parking lot of his apartment complex. Christian, a neighbor’s foster child,
was angry with defendant because defendant had previously returned
Christian to his foster home when he ran away. On the night of the party,
Christian rode a scooter around the neighborhood, drinking alcohol and
smoking marijuana. Christian became concerned defendant was looking for
him so he enlisted the help of his brother Vincent. (Rosas, supra, D072623 at
pp. 2–3.) When Vincent arrived at the party, he asked, “Who’s fucking with
my brother?” Defendant’s friend then approached, in an effort to calm
Vincent down. A verbal confrontation occurred between Vincent’s friend and
defendant’s friend. In response to the confrontation, defendant walked up to
the group, pushed his friend aside, pointed a gun at Vincent, and fired a
single shot into his head. (Id. at pp. 3–4.) Defendant then directed a
neighbor to dispose of Vincent’s body, which was accomplished by placing
Vincent in the trunk of the neighbor’s car and dumping his body a few blocks
away. Vincent died in the hospital six days later. (Id. at pp. 4–5.)
PROCEDURAL BACKGROUND
A Riverside County jury convicted defendant of second-degree murder.
(Pen. Code,2 § 187, subd. (a)) and also found true that he personally and
intentionally discharged a firearm during the offense, proximately causing
1 A detailed recitation of the facts is not necessary. We briefly summarize
the events as set forth in the Court of Appeal opinion in People v. Rosas
(Jan. 12, 2018, D072623) [nonpub. opn.] (Rosas).
2 Further statutory citations are to the Penal Code unless otherwise
stated.
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great bodily injury or death to another person (§§ 1192.7, subd. (c)(8) &
12022.53, subd. (d)). Defendant was sentenced to 15 years to life for murder
and a consecutive 25 years to life for the firearm enhancement for a total of
40 years to life in state prison. Defendant appealed and on January 12, 2018,
the Court of Appeal affirmed the judgment. (Rosas, supra, D072623.)
Defendant thereafter filed a habeas petition seeking resentencing in
light of Senate Bill No. 620, which amended section 12022.53, subdivision (h)
to give trial courts discretion to “strike or dismiss” firearm enhancements
imposed, in the interest of justice pursuant to section 1385. On the theory
this change in the law applied retroactively to defendant, the court granted
the petition. At resentencing, the trial court struck defendant’s 25-year
enhancement and imposed a 10-year sentence for an uncharged, lesser
firearm enhancement under section 12022.53, subdivision (b). At that time,
the People argued that People v. Morrison (2019) 34 Cal.App.5th 217(Morrison), allowed the imposition of the 10-year sentence.
Defendant has filed an appeal from the imposition of the 10-year
sentence for the lesser uncharged firearms enhancement under section
12022.53, subdivision (b).
DISCUSSION
Defendant’s sole issue on appeal is that at the time of resentencing, the
trial court had no authority to sentence him to the 10-year sentence for an
uncharged lesser firearms offense. The People, noting a split of authority on
the issue, and also noting the issue is currently before the California
Supreme Court, now agree the imposition of the sentence was improper.
After reviewing the court’s resentencing and current case law, we agree
with the parties.
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Contrary to Morrison, the court in People v. Tirado (2019) 38
Cal.App.5th 637 (Tirado) review granted November 13, 2019, S257658, held
trial courts did not have the authority to reduce a firearms enhancement that
was found true to a lesser uncharged enhancement. It ruled section 12022.53
conferred on trial courts only the authority to strike or dismiss the
enhancement if it were not imposed.
We need not engage in a detailed analysis of Tirado and Morrison.
Both parties have offered thoughtful reasons why we should follow the
reasoning of Tirado. A number of cases raising the issue are before the
Supreme Court including People v. Valles (2020) 49 Cal.App.5th 156, 167,
review granted July 22, 2020, S262757; People v. Garcia (2020) 46
Cal.App.5th 786, 790–791, review granted June 10, 2020, S261772; People v.
Yanez (2020) 44 Cal.App.5th 452, 458, review granted April 22, 2020,
S260819.
In addition, as the People have noted, our Supreme Court has observed
that the discretionary authority to strike provided in section 1385 is limited
in scope. Section 1385 may not, for example, be invoked in order to reduce a
first degree murder conviction to second degree murder, or to reduce an
offense of conviction to an uncharged lesser related offense. (See In re
Varnell (2003) 30 Cal.4th 1132, 1134–1138.)
The parties disagree on the disposition we should impose. The People
ask that we remand for resentencing, whereas defendant asks that we strike
the unauthorized 10-year sentence enhancement and affirm the sentence of
15 years to life.
At the sentencing hearing, the prosecutor told the court it had
discretion under Morrison, supra, 34 Cal.App.5th 217, to strike the 25-year
enhancement and to impose one of the lesser enhancements of section
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12022.53, either 10 years or 20 years. (§ 12022.53, subds. (b) [10-year
enhancement for personal use of firearm] & (c) [20-year enhancement for
personal discharge of firearm].) The court relied on the holding of Morrison
when considering whether to strike the 25-year firearm enhancement. It
struck the 25-year enhancement and imposed a 10-year enhancement in its
place, in reliance on Morrison.
A court must be correctly informed when exercising its discretion.
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The court here was not
correctly informed when it based its discretionary decision on Morrison. The
court’s decision to strike the 25-year enhancement was based in part on the
ability to impose a significant, but lesser, enhancement for use of a firearm.
We cannot discern from the record if the court would have stricken the longer
enhancement if it could not impose any penalty for defendant’s use of a
firearm. We therefore strike the 10-year sentence on the enhancement and
return this case to the court to reconsider whether to strike the 25-year
firearm enhancement. Its choices under the statute are to impose, strike or
dismiss the enhancement. (§§ 1385, 12022.53, subd. (h).)
“[W]hen part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate, so the trial
court can exercise its sentencing discretion in light of the changed
circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893; accord, People
v. Bell (2020) 48 Cal.App.5th 1, 24 [upon appellate court’s striking of a
section 667.5, subd. (b), prior prison term enhancement, “the trial court is
entitled to reconsider appellant’s entire sentence”]; People v. Acosta (2018) 29
Cal.App.5th 19, 26 [on remand for resentencing “the trial court will have
‘ “jurisdiction to modify every aspect of [appellant’s] sentence” ’ ”].)
Defendant claims that the statement of the “full resentencing rule” in Buycks
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is dicta because Buycks involved an issue under Proposition 47. The Buycks
court simply restated the general rule that is ordinarily applicable at
resentencing. (Buycks, at p. 893.) Of note, the court here recognized that it
would have to resentence defendant if Morrison were incorrect. The court
stated, “I am willing to stick my neck out subject to it coming back to me
again. If Morrison is not the law of the land of California, . . . then I suppose
this might not be the last time we visit.” On remand, the court should decide
anew whether to impose or strike the 25-year enhancement.
DISPOSITION
In light of the current state of the law and existing authority, we agree
with the parties and accept the concession offered by the People. We order
the 10-year enhancement stricken and we remand the case to the Superior
Court to resentence defendant in accord with this opinion.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
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