Filed 5/23/18 P. v. Graham CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE






Appeal from a judgment of the Superior Court of Orange County, Johnathan S. Fish, Judge. Reversed and remanded.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

THE COURT:*
A jury convicted defendant Chandler Emile Graham of four counts of
second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)); assault with a firearm (Pen. Code, § 245, subd. (a)(2)); evading while driving recklessly (Veh. Code § 2800.2); unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)); and possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)).1 As to the four robbery counts, the jury found defendant personally used a firearm (§ 12022.53). The trial court found true that defendant had previously suffered a strike prior, within the meaning of sections 667, subdivisions (d) and (e)(1) and 1170.12, subdivisions (b) and (c)(1), and a serious felony prior, within the meaning of sections 667, subdivision (a)(1), and 1192.7. The trial court sentenced defendant to 44 years and four months in prison, 20 years of which were for the firearm enhancements.
Defendant’s only contention on appeal is that in light of a recent change in the law, he is entitled to a new sentencing hearing at which the trial court can exercise its discretion to strike the firearm enhancements imposed in his case. Legislation effective January 1, 2018, amended section 12022.53, subdivision (h) to allow a trial court “in the interest of justice pursuant to Section 1385” at the time of sentencing or resentencing to strike or dismiss firearm enhancements imposed under section 12022.53. Defendant argues, and the Attorney General concedes, this new legislation granting discretion to mitigate punishment applies retroactively to all cases not yet final, including this case, pursuant to the holding of People v. Francis (1969) 71 Cal.2d 66, 75-76. The parties

* Before Aronson, Acting P.J., Ikola, J., and Goethals, J.

1 All further statutory references are to the Penal Code.
disagree, however, as to whether the retroactive application of section 12022.53, subdivision (h) requires a remand for resentencing in this case.
The Attorney General argues “remand is unnecessary because the facts of this [case] compel the conclusion that no reasonable trial court would strike any of appellant’s four gun enhancements. Newly amended section 12022.53 states that the trial court may strike or dismiss the gun enhancement ‘in the interests of justice.’ Here, justice demands no such relief.”
The Attorney General supports this argument by reciting the following ugly facts regarding the bank robbery at issue: Defendant walked into a bank and used a loaded gun to rob four bank employees. One of these victims was pregnant, and defendant leveled the barrel of the gun at her belly. He also physically attacked a male customer and pointed the gun at the man’s face. Defendant then fled the scene in a stolen car, leading police on a dangerous car chase, blowing through red lights and stop signs, swerving into oncoming traffic and through intersections while driving nearly 100 miles per hour. Even worse, this was not defendant’s first high-speed police chase. Years earlier, he had killed a man during a similar high-speed getaway attempt and was on parole for that murder when he committed this robbery. The Attorney General argued, “No judge would ever find that the ‘interest of justice’ demanded clemency for a person like appellant.”
Though the facts are indeed egregious, we agree with defendant the trial court must decide whether striking gun enhancements pursuant to section 12022.53, subdivision (h) would serve “the interest of justice.” Substituting our discretion for that of the trial court is “not [a] legitimate function[] of the Court of Appeal.” (In re
Marriage of Bower (2002) 96 Cal.App.4th 893, 897.)
“Defendants are entitled to sentencing decisions made in the exercise of the
‘informed discretion’ of the sentencing court. (See United States v. Tucker (1972) 404
U.S. 443, 447; Townsend v. Burke (1948) 334 U.S. 736, 741.) A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record. [Citation.]” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) Where it is clear “the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.)
Since the record does not “conclusively show[]” the trial court would have declined to mitigate defendant’s punishment by striking the gun enhancements “if it had known that it had such discretion,” defendant is entitled to a remand for resentencing. (See People v. Leon (2016) 243 Cal.App.4th 1003, 1026; People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
DISPOSITION
The judgment is reversed and the case is remanded for resentencing consistent with this opinion.