People v. Roessler CA3 ( 2021 )

Filed 7/16/21 P. v. Roessler CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C090009
Plaintiff and Respondent, (Super. Ct. Nos.
MANCRFE20130001315,
v. MF036585B)
MICHAEL LEE ROESSLER,
Defendant and Appellant.
The trial court denied defendant Michael Lee Roessler’s request to strike a firearm
enhancement under Penal Code section 12022.53.1 Defendant appeals that denial,
arguing the court failed to consider whether it should reduce, rather than strike, the
enhancement. We will affirm the judgment.
1 Undesignated statutory references are to the Penal Code.
1
BACKGROUND
Defendant shot and killed the victim following an extended dispute that began at a
bar and concluded in front of the victim’s home. (People v. Roessler (May 15, 2018,
C078697) [nonpub. opn.].) He was convicted of second degree murder. (§ 187.) The
jury also found true allegations he intentionally and personally discharged a firearm
causing death (§ 12022.53, subd. (d)), used a firearm (§ 12022.5, subd. (a)), and was
armed with a firearm (§ 12022, subd. (a)). On appeal, we affirmed the judgment but
remanded the case to allow defendant to place additional information on the record that
might later be relevant to future youth offender parole hearings and so the trial court
could consider whether to exercise its discretion under Senate Bill No. 620 (2017-2018
Reg. Sess.) (Stats. 2017, ch. 682) to strike the section 12022.53, subdivision (d) firearm
enhancement. (Roessler, supra, C078697.)
The trial court held a hearing following the remand. Defendant argued the court
should consider his intoxication at the time of the murder, the actions of other individuals
in the dispute that preceded the shooting, and the sincere remorse defendant had shown as
mitigating factors. The prosecution responded that defendant’s actions were not
impulsive, the crime did not involve a complex set of facts, and the evidence clearly
established defendant had personally used a firearm to murder the victim.
The court considered the evidence of defendant’s intoxication, but concluded
defendant was not “grossly intoxicated.” The court then considered the facts of the case,
saying: “Mr. Oliver provided the firearms. But this was a request to get firearms . . . .
So this was done over a period of time before the incident. To me, that indicates there
was significant premeditation. There was some sort of an incident at a bar a few hours
before the killing involving the decedent and members of the Defendant’s side. It was
just a foolish incident. There was no deadly force. It was words and bad feelings.
“Certainly nothing to justify the use of deadly force. No reason to have deadly
force. And as far as I could tell, at the time of that incident at the bar when the problem
2
arose, no one had a deadly weapon. And nothing happened. But then the Defendant
decided that it would be a good idea to arm himself with a deadly [] firearm. And then
the Defendant, Mr. Oliver, drove their motorcycles to the decedent’s house and then shot
the decedent to death. [¶] Also, Mr. Oliver was shot by the Defendant accidentally. But
at the time, the decedent was posing no risk to the Defendant. He was unarmed. It was
in front of his house. There was no reason for this. And I just don’t see any basis to say
the use of a firearm should be stayed. So I’m going to deny that. Also, keeping in mind
it was a negative probation report. But I will deny the motion to stay the 25 years to life
sentence for use of a firearm.”
DISCUSSION
Defendant contends the trial court did not understand that it had the ability to
reduce his firearm enhancement, rather than strike it wholesale, and thus could not have
exercised informed discretion, as it was required to do. In support of his argument,
defendant points to People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), a decision
from the First District Court of Appeal, which held that a court exercising its discretion to
strike an enhancement under section 1385 can instead opt to impose a lesser enhancement
in the interests of justice. Defendant briefly notes that People v. Tirado (2019)
38 Cal.App.5th 637, review granted November 13, 2019, S257658 (Tirado), a decision
from the Fifth District Court of Appeal, and People v. Yanez (2020) 44 Cal.App.5th 452,
review granted April 22, 2020, S260819, from the Fourth District Court of Appeal, have
taken a contrary position, but urges us to adopt the Morrison approach. We agree with
Tirado and Yanez, and decline defendant’s invitation.
“ ‘Section 12022.53 sets forth the following escalating additional and consecutive
penalties, beyond that imposed for the substantive crime, for use of a firearm in the
commission of specified felonies, including . . . murder: a 10-year prison term for
personal use of a firearm, even if the weapon is not operable or loaded (id., subd. (b)); a
20-year term if the defendant “personally and intentionally discharges a firearm” (id.,
3
subd. (c)); and a 25-year-to-life term if the intentional discharge of the firearm causes
“great bodily injury” or “death, to any person other than an accomplice” (id., subd. (d)).
For these enhancements to apply, the requisite facts must be alleged in the information or
indictment, and the defendant must admit those facts or the trier of fact must find them to
be true.’ [Citation.] Section 12022.53, subdivision (f) provides, ‘Only one additional
term of imprisonment under this section shall be imposed per person for each crime. If
more than one enhancement per person is found true under this section, the court shall
impose upon that person the enhancement that provides the longest term of
imprisonment . . . .’ ” (Morrison, supra, 34 Cal.App.5th at p. 221.) Under section
12022.53, subdivision (h), “ ‘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.’ ” (Morrison, at pp. 221-222,
italics added.)
In Morrison, as in this case, the jury found true an enhancement allegation under
section 12022.53, subdivision (d). (Morrison, supra, 34 Cal.App.5th at p. 221.) The trial
court declined to strike the enhancement, and defendant argued on appeal that “the court
did not understand the scope of its discretion,” in that it “had the discretion to modify the
enhancement from that established by section 12022.53, subdivision (d), which carries a
term of 25 years to life, to a ‘lesser included’ enhancement under section 12022.53,
subdivision (b) or (c), which carry lesser terms of 10 years or 20 years, respectively.”
(Ibid.) The First District Court of Appeal agreed, based, in part, on cases that concluded
courts “may impose a ‘lesser included’ enhancement that was not charged in the
information when a greater enhancement found true by the trier of fact is either legally
inapplicable or unsupported by sufficient evidence.” (Id. at p. 222.) Morrison also relied
on an oblique reference by our Supreme Court to the “wide range of sentencing choices”
4
available to a trial court using section 1385 to strike a sentence enhancement in People v.
Marsh (1984) 36 Cal.3d 134, 144 (Marsh). (Morrison, at p. 223.)
Following Morrison, however, the Fifth District Court of Appeal in Tirado, supra,
38 Cal.App.5th 637, review granted, the Fourth District Court of Appeal in People v.
Yanez, supra, 44 Cal.App.5th 452, review granted, and the Second District Court of
Appeal in People v. Garcia (2020) 46 Cal.App.5th 786, review granted June 10, 2020,
S261772, have issued opinions concluding that trial courts only have authority to strike or
dismiss a section 12022.53 enhancement, rather than modify it.
We find Tirado and its concurring cases more persuasive. The plain language of
both statutes at issue, sections 1385 and 12022.53, subdivision (h) permit a court to
“strike” or “dismiss” the enhancement, but neither statute “conveys the power to change,
modify, or substitute a charge or enhancement.” (Tirado, supra, 38 Cal.App.5th. at
p. 643, rev. granted.) Other statutes that permit such modification explicitly state so.
(See, e.g., §§ 1260 [“The court may reverse, affirm, or modify a judgment or order
appealed from, or reduce the degree of the offense or attempted offense or the
punishment imposed . . . .”], 1181 [“the court may modify the verdict, finding or
judgment accordingly”]; Tirado, at p. 643.)
Moreover, the case law Morrison cites to justify the proposition that a “court may
impose a ‘lesser included’ enhancement that was not charged in the information when a
greater enhancement found true by the trier of fact is either legally inapplicable or
unsupported by sufficient evidence” did not rely on section 1385 and was thus not
restricted by section 1385’s language. (Morrison, supra, 34 Cal.App.5th at p. 222.) And,
those cases only imposed the lesser included enhancements when the greater
enhancement was found legally inapplicable or supported by insufficient evidence; they
do not stand for the proposition that a court may “substitute a perfectly valid greater
enhancement for a lesser included enhancement.” (People v. Garcia, supra,
46 Cal.App.5th at p. 793, rev. granted.)
5
Nor do we view Marsh as supportive of the Morrison court’s position. In Marsh,
our Supreme Court considered a situation with two sentence enhancement allegations and
noted that section 1385 provided a “wide range of sentencing choices” other than striking
or declining to strike both allegations. (Marsh, supra, 36 Cal.3d at p. 144.) But this
statement does not mean that a trial court could modify, rather than strike, the
enhancement allegations. Rather, it is describing a situation where the trial court could
choose to strike one of the two enhancements it was considering but leave the other
intact. (Ibid.)
Here, the prosecution charged a sentence enhancement allegation under section
12022.53, subdivision (d), and the jury found that allegation true. Neither party contends
the true finding is legally inapplicable nor supported by insufficient evidence. The trial
court did not have the ability to modify the enhancement, and we thus conclude that the
court properly understood the scope of its discretion when it declined to strike
defendant’s section 12022.53, subdivision (d) enhancement.
DISPOSITION
The judgment is affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
HOCH, J.
/s/
KRAUSE, J.
6