People v. Roessler CA3

Filed 6/8/22 P. v. Roessler 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C090009
Plaintiff and Respondent, (Super. Ct. Nos.
MANCRFE20130001315 &
v. MF036585B)
MICHAEL LEE ROESSLER, OPINION ON TRANSFER
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.
1 Undesignated statutory references are to the Penal Code.
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We filed an opinion on July 16, 2021, in which we concluded the trial court did
not, in fact, have the authority to reduce, rather than strike, the enhancement, and thus
affirmed the judgment. Our Supreme Court granted review on September 29, 2021.
On April 27, 2022, the Supreme Court transferred the matter back to this court
with instructions to vacate our previous decision and reconsider the cause in light of
People v. Tirado (2022) 12 Cal.5th 688 (Tirado), which concluded that trial courts are
permitted to strike a firearm enhancement under section 12022.53, subdivision (d) and
impose a lesser, uncharged firearm enhancement instead. Both parties submitted
supplemental briefing. After reconsidering the matter consistent with the Supreme
Court’s order, we will remand the matter to allow the trial court to exercise its discretion
to strike or reduce the firearm enhancement.
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)(1)). 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
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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
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
strike his firearm enhancement and impose a lesser enhancement, rather than simply
striking it entirely, and thus could not have exercised informed discretion. Defendant
argues the case must be remanded so the court may consider whether to impose a lesser
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enhancement instead of the current enhancement. The People argue defendant forfeited
his claim on appeal because he only asked the trial court to “ ‘stay’ ” the firearm
enhancement and did not ask the trial court to strike, reduce, or modify the enhancement.
Prior to Tirado, there was a split among the Courts of Appeal on whether the trial
court had discretion to reduce a firearm enhancement or impose a lesser, uncharged
firearm enhancement. Some courts held the trial court had such discretion. (See e.g.,
People v. Morrison (2019) 34 Cal.App.5th 217.) Other courts held the trial court only
had authority to strike or dismiss a firearm enhancement. (See e.g., People v. Yanez
(E070556, app. pending) opn. filed Jan. 21, 2020, review granted Apr. 22, 2020,
S260819, vacated & trans. for reconsideration in light of Tirado Apr. 20, 2022; People v.
Garcia (B293491) opn. filed Mar. 18, 2020, review granted June 10, 2020, S261772,
vacated & trans. for reconsideration in light of Tirado Apr. 20, 2022, sub. opn. filed May
20, 2022.)
In Tirado, the Supreme Court resolved this split among the courts of appeal and
held “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.” (Tirado, supra, 12 Cal.5th at p. 692.) “To summarize:
When an accusatory pleading alleges and the jury finds true the facts supporting a section
12022.53[, subdivision ](d) enhancement, and the court determines that the section
12022.53[, subdivision ](d) enhancement should be struck or dismissed under section
12022.53[, subdivision ](h), the court may, under section 12022.53[, subdivision ](j),
impose an enhancement under section 12022.53[, subdivisions ](b) or (c). The plain
statutory language supports this conclusion.” (Id. at p. 700, fns. omitted.)
We conclude that after the Supreme Court’s decision in Tirado, remand is
appropriate to allow the trial court to exercise its discretion to strike or reduce the firearm
enhancement.
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DISPOSITION
Defendant’s convictions are affirmed. The sentence is vacated, and the case is
remanded to the trial court to exercise its discretion to strike, dismiss or reduce the
section 12022.53 enhancement. If the court imposes a different sentence than that
imposed at the prior sentencing, it is directed to prepare an amended abstract of judgment
and to forward a certified copy thereof to the Department of Corrections and
Rehabilitation.
/s/
HOCH, Acting P. J.
We concur:
/s/
KRAUSE, J.
/s/
EARL, J.
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