People v. Mitchell CA2/2

Filed 6/2/22 P. v. Mitchell CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B298910
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA422497)
v.
BERNARD MITCHELL, OPINION ON REMAND
Defendant and Appellant.
APPEAL from a judgment 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.
Rob Bonta and Xavier Becerra, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, David E. Madeo and William
H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
******
A jury convicted Bernard Mitchell (defendant) of six counts
of second degree robbery, one for each victim of his two bank
robberies. The jury also found true six enhancements for the
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personal use of a firearm (Pen. Code, § 12022.53, subd. (b)).
Those enhancements added a total of 26 years and eight months
to his sentence. In the most recent sentencing proceeding,
defendant asked the trial court to exercise its then-newly
conferred discretion under section 12022.53, subdivision (h), to
dismiss the firearm enhancements entirely or instead to impose a
lesser sentence under the enhancement for personal use of a
firearm contained in section 12022.5. The trial court declined,
and we affirmed that ruling. (People v. Mitchell (May 28, 2020,
B298910) [nonpub. opn.].) Our Supreme Court granted review in
August 2020; handed down People v. Tirado (2022) 12 Cal.5th
688 (Tirado) holding that trial courts do have the discretion to
dismiss a greater enhancement for an uncharged lesser statutory
enhancement; and remanded this case back to us for
consideration in light of Tirado.
Because Tirado unequivocally rejects some of the reasoning
we adopted in our prior opinion, that prior opinion and decision is
vacated. We remand the matter for a new sentencing hearing for
the trial court to reconsider its decision whether to strike the
section 12022.53, subdivision (b) enhancements in this case in
light of the broader discretion, recognized in Tirado, to impose
unproven lesser enhancements, including under section 12022.5.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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FACTS AND PROCEDURAL BACKGROUND
I. Facts
In August 2013 and December 2013, defendant and a
companion entered two different One West Bank locations in Los
Angeles. Each time, they ordered bank employees, at gunpoint,
to lie on the ground. They made away with $73,740 in cash from
the August robbery and $63,800 in cash from the December
robbery.
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
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victims inside the second bank.
2 As to each robbery, the People also alleged an enhancement
based on the amount taken. During defendant’s first appeal, we
concluded that the trial court erred in instructing the jury on this
enhancement for one of the robberies, and on remand the trial
court reduced defendant’s sentence by one year.
The People also charged Mitchell with being a felon in
possession of a firearm (§ 29800, subd. (a)(1)), and a jury
convicted him of that charge.
Because these additional allegations and crime are not at
issue in this appeal, we will not discuss them further.
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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 trial court originally sentenced defendant to 40 years
in state prison.
After a successful appeal on a sentencing issue unrelated to
this appeal and remand, the trial court sentenced defendant to 39
years in state prison. In coming to this calculation, 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).
During this resentencing, defendant asked the trial 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
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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.
Defendant filed a timely appeal.
As noted above, we affirmed, but our Supreme Court
vacated our prior opinion and has remanded the matter for us to
reconsider in light of Tirado.
DISCUSSION
Section 12022.53 creates three firearm enhancements—a
25-year enhancement for “personally and intentionally
discharg[ing] a firearm and proximately caus[ing] great bodily
injury” (§ 12022.53, subd. (d)), a 20-year enhancement for
“personally and intentionally discharg[ing] a firearm” (but
without proximately causing great bodily injury) (id., subd. (c)),
and a 10-year enhancement for “personally us[ing] a firearm” (id.,
subd. (b)). That section also grants a trial court the discretion to
“strike or dismiss an enhancement” it was “otherwise required to
. . . impose[]” “in the interest of justice pursuant to Section 1385”
(Id., subd. (h)), and to impose any enhancement so long as “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.” (Id., subd. (j).)
In Tirado, supra, 12 Cal.5th 688, our Supreme Court held
that a trial court that “determines that [a] section 12202.53(d)
enhancement should be struck or dismissed under section
12022.53(h)” “may, under section 12022.53(j), impose an
enhancement under section 12022.53(b) or (c),” “even if the lesser
enhancements were not specifically charged . . . or found true by
the jury.” (Id. at pp. 696, 700.)
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In this case, however, the firearm enhancement charged is
the lowest, 10-year enhancement under subdivision (b) of section
12022.53. Thus, the question here is whether Tirado confers the
discretion to strike this enhancement and substitute a lesser-
included firearm enhancement housed in a statute other than
section 12022.53. We conclude that the answer is “yes.”
Although Tirado specifically dealt with a trial court’s power to
strike one of the higher firearm enhancements under section
12022.53 and to substitute a lesser firearm enhancement under
section 12022.53, Tirado’s language and rationale are not so
limited. As far as its language, Tirado held that subdivision (h)
of section 12022.53 “permits a [trial] court to strike the [25-year]
enhancement found true by the jury and to impose a lesser
uncharged statutory enhancement instead”—and, tellingly, did
not limit this language to the lesser uncharged statutory
enhancements housed in section 12022.53. (Tirado, supra, 12
Cal.5th at p. 692, italics added.) As far as its rationale, Tirado
favorably cited several decisions that have recognized a trial
court’s authority to impose a lesser-included enhancement
housed in a different statute. (Id., at pp. 697-699, citing People v.
Fialho (2014) 229 Cal.App.4th 1389, 1395, 1398 [§ 12022.5, subd.
(a) enhancement applied instead of charged § 12022.53, subd. (d)
enhancement].) The recent decision in People v. McDavid (2022)
77 Cal.App.5th 763, 774-775, is in accord.
Here, the trial court rejected defendant’s request to strike
the firearm enhancements, explaining its view that, “If I do strike
that [enhancement], I have discretion to do that completely.”
(Italics added.) This language indicates the trial court’s belief
that its choice was an all-or-nothing choice, one that did not
comprehend the option of applying the section 12022.5,
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subdivision (a) enhancement. Because a court that is unaware of
the scope of its discretion necessarily abuses that discretion
(People v. Carmony (2004) 33 Cal.4th 367, 378), the trial court’s
ruling is an abuse of discretion and defendant is entitled to an
opportunity to ask the court to exercise its discretion within the
full range of possible sentences in mind. The People concede as
much.
In doing so, we express no opinion as to how the trial court
should exercise its discretion on remand.
DISPOSITION
The judgment is reversed to the extent it imposed firearm
enhancements pursuant to section 12022.53, subdivision (b) and
the matter is remanded for resentencing with directions that the
court exercise its discretion pursuant to section 12022.53,
subdivisions (h) and (j). In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
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CHAVEZ
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