People v. Doulphus CA3

Filed 6/30/22 P. v. Doulphus CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
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THE PEOPLE, C089263
Plaintiff and Respondent, (Super. Ct. No. NCR88402)
v. OPINION ON TRANSFER
ALAN DUANE DOULPHUS,
Defendant and Appellant.
This case returns to us on transfer from the California Supreme Court with
directions to vacate our previous decision and reconsider in light of People v. Tirado
(2022) 12 Cal.5th 688 (Tirado). On remand, the trial court denied in part defendant Alan
Duane Doulphus’s request to strike all three of the Penal Code1 section 12022.53 firearm
enhancements associated with his offenses, striking only two of the enhancements. When
defense counsel suggested the trial court could reduce the enhancements, the trial court
1 All further section references are to the Penal Code.
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replied that it could not. Defendant appeals, arguing we should remand the matter to
allow the trial court to exercise its discretion to impose a lesser enhancement.
In an unpublished opinion, we affirmed the trial court’s ruling . (People v.
Doulphus (June 30, 2021, C089263) [nonpub. opn.].) On transfer, defendant contends
the matter must be remanded to allow the trial court to “exercise its discretion to modify
the firearm enhancement.” (Capitalization omitted.) The People offer no opposition.
We will remand the matter to allow the trial court to exercise its discretion.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pled guilty to three counts of robbery, each with a section 12022.53,
subdivision (c) enhancement for discharging a firearm, and to one count of voluntary
manslaughter, and was sentenced to a 42-year four-month state prison term.
There was no stipulated term as part of the plea agreement. At sentencing, the
trial court rejected defendant’s argument for a mitigated term for the principal robbery
conviction, instead imposing an aggravated five-year term on one of the robbery counts
as part of the 42-year four-month total term.
In defendant’s first appeal, we remanded to allow the trial court to determine
whether to exercise its discretion to strike the firearm enhancements pursuant to the then
newly enacted Senate Bill No. 620, and otherwise affirmed. On remand, the trial court
struck the firearm enhancements as to two of the robbery counts, for a total term of 29
years. When counsel suggested the trial court could dismiss or reduce the enhancements,
the court replied that it could strike an enhancement but could not reduce it.
Defendant timely appealed, and as explained above, we initially declined to
remand the case but have now been directed to reconsider that decision. Having done so,
we shall remand the matter to the trial court.
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DISCUSSION
On transfer from the Supreme Court, defendant maintains the trial court did not
understand it had the ability to reduce his firearm enhancement to an uncharged lesser
enhancement in lieu of striking it, and thus could not have exercised its informed
discretion. The People did not file a brief. We agree with defendant that remand for
informed exercise of the trial court’s discretion is appropriate.
Section 12022.53 provides for a 10-year enhancement for the personal use of a
firearm under subdivision (b); a 20-year enhancement for the personal and intentional
discharge of a firearm under subdivision (c); and a 25-year-to-life enhancement for the
personal and intentional discharge of a firearm causing great bodily injury or death under
subdivision (d).
Effective January 1, 2018, the Legislature enacted Senate Bill No. 620 (2017-2018
Reg. Sess.), which amended section 12022.53, subdivision (h) to provide: “The court
may, in the interests 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.” A
trial court’s refusal to dismiss a section 12022.53 enhancement is reviewed under the
deferential abuse of discretion standard. (People v. Pearson (2019) 38 Cal.App.5th 112,
116.) “When being sentenced, a defendant is entitled to decisions made by a court
exercising informed discretion. [Citation.] A court acting while unaware of the scope of
its discretion is understood to have abused it.” (Tirado, supra, 12 Cal.5th at p. 694.)
In People v. Morrison (2019) 34 Cal.App.5th 217, the appellate court held that
amended section 12022.53, subdivision (h) not only gave a trial court the authority to
strike or dismiss a firearm enhancement, but also to impose a lesser firearm enhancement.
(Morrison, at p. 222.) Our Supreme Court concluded that “Morrison correctly described
the scope of a trial court’s sentencing discretion under section 12022.53.” (Tirado,
supra, 12 Cal.5th at p. 697.)
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Our high court held trial courts are not categorically prohibited from imposing a
lesser enhancement, either charged or uncharged, if the prosecution has charged the
greater enhancement and the facts supporting the lesser enhancement have been alleged
and found true. (Tirado, supra, 12 Cal.5th at p. 697.) We think there is no practical
difference for purposes of this principle, that a defendant has admitted the facts
supporting the lesser enhancement. (See § 12022.53, subd. (j) [“For the penalties in this
section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall
be alleged in the accusatory pleading and either admitted by the defendant in open court
or found to be true by the trier of fact”], italics added.) Thus, under the section 12022.53
statutory framework, it is now clear that trial courts are permitted to strike an
enhancement admitted by the defendant and to impose a lesser statutory enhancement
instead. (Tirado, at p. 700.)
Here, the record shows the trial court was not aware of its discretion in this regard.
Accordingly, we shall remand the case for reconsideration of defendant’s request to
dismiss or reduce the sole remaining section 12022.53, subdivision (c) firearm
enhancement. Defendant may renew any of his previous arguments seeking dismissal of
the enhancement as well as make any new arguments for dismissal or reduction on
remand.
We express no opinion as to how the trial court should exercise its discretion on
remand, but we note our agreement with defendant that, under the reasoning of Tirado,
the trial court may reduce the section 12022.53, subdivision (c) firearm enhancement to a
section 12022.5, subdivision (a) firearm enhancement. (Cf. Tirado, supra, 12 Cal.5th at
p. 692 [“the statutory framework permits a court to strike the section 12022.53,
[subdivision] (d) enhancement found true by the jury and to impose a lesser uncharged
statutory enhancement instead”], italics added.)
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DISPOSITION
Defendant’s sentence is vacated and the matter is remanded for resentencing so the
trial court may exercise its discretion in accordance with this opinion. At resentencing,
the trial court may also consider any other new sentencing laws that apply to defendant,
as his judgment is not yet final.
/s/
Robie, Acting P. J.
We concur:
/s/
Mauro, J.
/s/
Renner, J.
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