People v. Bushey CA3

Filed 2/2/21 P. v. Bushey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C089360

Plaintiff and Respondent, (Super. Ct. No. 12F05600)

v.

MARCE BUSHEY,

Defendant and Appellant.

A trial court denied defendant Marce Bushey’s request to strike firearm enhancements under Penal Code sections 12022.5 and 12022.53.1 Defendant appeals that denial, arguing the court did not fully understand the scope of its discretion when it made its decision. We will affirm the judgment.

1 Undesignated statutory references are to the Penal Code.

1

I. BACKGROUND Defendant and two others beat the victim with guns and took his car, along with his wallet and cell phone. Defendant was convicted of second degree robbery (§ 211) with personal use of a firearm (§ 12022.53, subd. (b)) and assault with a firearm (§ 245, subd. (a)(2)) with personal use of a firearm (§ 12022.5, subd. (a)). Defendant appealed and we affirmed the judgment, but vacated the sentence and remanded the case so the trial court could consider whether to exercise its discretion under the newly enacted sections 12022.53, subdivision (h) and 12022.5, subdivision (c), to strike or dismiss the firearm enhancements. (People v. McBride et al. (March 29, 2018, C076802) [nonpub. opn.].) Before the resentencing hearing, defense counsel produced letters from defendant expressing his remorse and explaining his post-release plans, reference letters from friends and family, and evidence of defendant’s activities in prison, including positive reviews from work supervisors, community college transcripts, and certificates of completion for self-improvement courses. The prosecution produced several rules violation reports from prison, including one for a positive drug test and others for refusals to work. At the hearing, defense counsel argued defendant “does stand outside the spirit and the scheme . . . the legislature had in mind when they enacted those two gun enhancements,” based on defendant’s rehabilitative efforts in prison. The prosecution argued the court should “resentence the defendant to the same sentence that he was originally sentenced to back in 2014,” because of defendant’s actions in the underlying crime. The court framed the issue as a decision whether defendant was entitled to “leniency because of some very special or unique circumstance.” Although the court commended defendant for his efforts while in prison, the court found defendant was not entitled to such leniency: “And I recognize that you came before the Court very young,