Opinion
A156935
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. NAMON TAYLOR Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. CH-58226A)
Namon Taylor appeals from a resentencing hearing. He claims the trial court misunderstood the scope of its discretion when it declined to strike his firearm enhancement (Pen. Code, § 12022.53). He also contends his prior prison enhancements must be stricken. (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1; Sen. Bill No. 136.)
Undesignated statutory references are to the Penal Code. We grant Taylor's request for judicial notice of the record in his prior appeal, and we incorporate by reference our unpublished opinion in that appeal, People v. Taylor (Aug. 20, 2018, A148960).
We strike from Taylor's sentence the prior prison enhancements (§ 667.5, subd. (b).) In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Taylor of two counts of second degree robbery and possession of a firearm by a felon. As relevant here, the jury found Taylor used a firearm in the commission of one of the robberies (§§ 12022.5, subd. (a), 12022.53, subd. (b)). Taylor admitted nine prior convictions, two of which resulted in a prison term (§ 667.5, subd. (b).) The court sentenced Taylor to 15 years in state prison. The sentence included 10 years for the firearm enhancement (§ 12022.53, subd. (b)) and one year for the first prison prior (§ 667.5, subd. (b)). The court imposed but stayed one year for the second prison prior (§ 667.5, subd. (b)).
Taylor appealed. We affirmed the convictions but remanded for the court to consider whether to strike the firearm enhancement pursuant to section 12022.53, subdivision (h). (People v. Taylor, supra, A148960.) At the resentencing hearing, defense counsel urged the court to strike the section 12022.53 enhancement, and suggested the court also strike the section 12022.5 enhancement. The court noted it had discretion to strike the section 12022.53 enhancement, and instead "impose sentence under [section] 12022.5." The court declined to so. It explained: "I don't see the point of" exercising discretion "in favor of the robber who's got a gun when they are committing robberies. [¶] The court, when I consider all the facts that were presented at trial, is not inclined to exercise its discretion to strike the gun use."
The court imposed the same 15-year sentence, which included 10 years pursuant to section 12022.53, subdivision (b), and one year for the first prison prior pursuant to section 667.5, subdivision (b). The court imposed but stayed one year for the second prison prior.
DISCUSSION
I.
No Abuse of Discretion Regarding the Firearm Enhancement
Taylor does not contend the court erred by declining to strike the section 12022.53 enhancement. Instead, he contends the matter must be remanded because the court was unaware it had discretion to strike the "section 12022.53 enhancement and impos[e] an enhancement pursuant to 12022.5 in its stead." Remand is necessary when the record shows the trial court proceeds with sentencing on the erroneous assumption it lacks discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Here, however, the record demonstrates the court appreciated the scope of its discretion: at resentencing, the court acknowledged it had the ability to strike the section 12022.53 enhancement and "impose sentence under section 12022.5," but declined to do so. Remand is unnecessary.
Taylor's reliance on People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) is unavailing. In Morrison, the operative information charged, and the jury found true, a firearm enhancement under section 12022.53, subdivision (d). (Morrison, at p. 221.) We held the trial court had the discretion to impose a lesser, uncharged firearm "enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d), if such an outcome was found to be in the interests of justice under section 1385." (Morrison, at p. 223.) Because the record did not demonstrate the trial court understood this option was available, and, at the time of sentencing, "no published case had held an uncharged lesser firearm enhancement could be imposed in lieu of an enhancement under section 12022.53, subdivision (d) in connection with striking the greater enhancement[,]" we remanded the matter. (Morrison, at p. 224.)
We limited our holding to "cases where those enhancements have not been charged in the alternative and found true." (Morrison, supra, 34 Cal.App.5th at p. 225.) Morrison does not assist Taylor, even if we assume section 12022.5 is a "lesser included" enhancement to section 12022.53. Here and in contrast to Morrison, the section 12022.5 enhancement was charged and found true by the jury. And unlike Morrison, the trial court recognized it had the discretion to impose an enhancement pursuant to that statute and declined to do so.
II.
The Two Prison Prior Enhancements Must Be Stricken
When Taylor was resentenced, former section 667.5 subdivision (b) required courts to impose a one-year sentence enhancement for each prior prison term suffered by a defendant. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) Pursuant to Senate Bill No. 136, which became effective earlier this year, that enhancement applies only if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Lopez, at pp. 340-341.) Here, the parties agree—as do we—that Senate Bill No. 136 applies to Taylor, and that neither of his prior prison terms was for a sexually violent offense.
We decline the Attorney General's suggestion to remand for resentencing. "Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion. [Citation.] Accordingly, we will strike the [two] section 667.5, subdivision (b) enhancements." (Lopez, supra, 42 Cal.App.5th at p. 342, fn. omitted; People v. Chubbuck (2019) 43 Cal.App.5th 1, 14.)
DISPOSITION
We modify Taylor's sentence to strike the two section 667.5, subdivision (b) enhancements. We direct the superior court to prepare and forward to the California Department of Corrections and Rehabilitation a new abstract of judgment reflecting this modification, and to reduce Taylor's prison sentence accordingly. As modified, the judgment is affirmed.
/s/_________
JONES, P.J. We concur. /s/_________
SIMONS, J. /s/_________
NEEDHAM, J