People v. Morrison

Filed 4/11/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A154092 v. WARREN OLEG MORRISON, JR., (San Mateo County Super. Ct. No. SF400896A) Defendant and Appellant.

Appellant Warren Oleg Morrison, Jr. was tried before a jury and convicted of the first degree murder of Jarmal Magee with an enhancement for personally and intentionally discharging a firearm causing death. (Pen. Code, § 187, subd. (a), 12022.53, subd. (d).)1 In this appeal from a sentence of 50 years to life after a recall of the sentence under section 1170, subdivision (d)(1),2 appellant contends the trial court misunderstood the scope of its discretion under recent amendments to section 12022.53, which allow the court to strike an enhancement imposed under its provisions. We agree the court had the discretion to impose a lesser firearm enhancement and remand the case for resentencing so it can exercise its discretion. I. BACKGROUND Due to the limited nature of the issue raised in this appeal, it is not necessary to discuss the facts at length. Briefly, on October 25, 2015, appellant shot Magee several

1 Further statutory references are to the Penal Code unless otherwise indicated. 2 Appellant has separately appealed from the judgment of conviction, which we affirm by separate opinion filed this same date. (People v. Warren Morrison (April __, 2019, A152440) [nonpub. opn.].)

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times during an argument. Magee’s girlfriend at the time testified that appellant pulled the gun from his own waistband and continued to shoot even after Magee was disabled. Appellant claimed Magee pulled the gun from his (Magee’s) waistband and it initially discharged during their struggle; he continued to shoot Magee after gaining control of the gun because he was angry and afraid. The jury convicted appellant of first degree premeditated murder and found a firearm enhancement true under section 12022.53, subdivision (d). Appellant was sentenced to prison for 50 years to life on September 7, 2017—25 years to life on the murder count and 25 years to life for the firearm enhancement. On December 6, 2017, appellant filed a request to recall the sentence pursuant to section 1170, subdivision (d)(1), based on recent amendments to section 12022.53 that gave the court the discretion, effective January 1, 2018, to strike a firearm enhancement under its provisions. The court held a hearing on January 3, 2018 in which it recalled the sentence but denied the request to strike the firearm enhancement. In a hearing held on February 8, 2018, at which appellant was personally present, the court reimposed the original sentence of 50 years to life, consisting of 25 years to life for the murder count and 25 years to life for the firearm enhancement. II. DISCUSSION Appellant argues the case should be remanded for resentencing because the court did not understand the scope of its discretion. He acknowledges that the trial court acted properly in declining to strike the enhancement completely. But he argues the court had the discretion to modify the enhancement from that established by section 12022.53, subdivision (d), which carries a term of 25 years to life, to a “lesser included” enhancement under section 12022.53, subdivision (b) or (c), which carry lesser terms of 10 years or 20 years, respectively. “Section 12022.53 sets forth the following escalating additional and consecutive penalties, beyond that imposed for the substantive crime, for use of a firearm in the commission of specified felonies, including [] murder: a 10-year prison term for personal use of a firearm, even if the weapon is not operable or loaded (id., subd. (b)); a 20-year