34 Cal.App.5th 217
Cal. Ct. App.2019Background
- Morrison was convicted by a jury of first degree (premeditated) murder for shooting Jarmal Magee and found to have personally and intentionally discharged a firearm causing death (Pen. Code § 187(a); § 12022.53(d)).
- Original sentence (Sept. 7, 2017) was 50 years to life: 25-to-life for murder plus a consecutive 25-to-life under § 12022.53(d).
- Morrison sought resentencing under Penal Code § 1170(d)(1) after Senate Bill 620 (effective Jan. 1, 2018) gave courts discretion to strike firearm enhancements under § 12022.53 in the interest of justice (§ 1385).
- At trial the prosecutor had amended the information to allege only the § 12022.53(d) enhancement; the lesser § 12022.53(b) and (c) enhancements were not charged or found at trial.
- The trial court recalled the sentence but refused to strike the § 12022.53(d) enhancement and reimposed the original 50-to-life sentence; the court explained reasons for denying a complete strike but did not address whether it could impose a lesser uncharged enhancement instead.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether, after striking a § 12022.53(d) enhancement under § 1385, the court may impose a lesser § 12022.53(b) or (c) enhancement that was not charged/found at trial | The People argued remand is unnecessary because the trial court’s statements show it would not have exercised discretion to reduce the enhancement | Morrison argued the court had discretion to impose a lesser uncharged enhancement (b or c) instead of (d) when striking (d) is warranted by interests of justice | Court remanded for resentencing because the record does not show the trial court knew it could impose a lesser uncharged enhancement and therefore could not exercise informed discretion |
Key Cases Cited
- People v. Gonzalez, 43 Cal.4th 1118 (describes § 12022.53(b)–(d) enhancement scheme)
- People v. Fialho, 229 Cal.App.4th 1389 (uncharged lesser enhancement may be imposed when greater enhancement is legally inapplicable or unsupported)
- People v. Marsh, 36 Cal.3d 134 (court may strike allegations under § 1385 and employ intermediate sentencing options)
- People v. Fuhrman, 16 Cal.4th 930 (limits on remand when record silent about sentencing discretion; explains when remand is and is not required)