People v. Monroe CA3

Filed 3/17/21 P. v. Monroe CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C090193

Plaintiff and Respondent, (Super. Ct. No. 10F05343)

v.

D’ANDRE LEON MONROE,

Defendant and Appellant.

Defendant, D’Andre Leon Monroe, appeals following remand to allow the trial court to exercise its discretion whether to dismiss gun enhancements under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Pen. Code, §§ 12022.5, subd. (c), 12022.53, subd. (h); undesignated statutory references are to the Penal Code) and, if appropriate, to resentence defendant. In his opening brief, defendant contended the trial court was required to recalculate his presentence custody credits at his resentencing. In his reply brief,

1

defendant concedes, as he was not resentenced, he is not entitled to have his credits recalculated. We affirm the judgment.

FACTS AND PROCEDURAL HISTORY A jury found defendant guilty of second degree murder (§ 187) and shooting a gun at an inhabited dwelling (§ 246). (People v. Monroe (Aug. 23, 2018, C077506) [nonpub. opn.] at pp. 1, 6 (Monroe); we deemed defendant’s request for judicial notice of our unpublished decision, Monroe, a motion to incorporate by reference and granted the motion.) The jury further found defendant was armed with a firearm (§ 12022, subd. (a)(1)), personally used a firearm (§ 12022.5, subd. (a)), and personally discharged a firearm causing death (§ 12022.53, subds. (b), (c), & (d)). (Monroe, at pp. 1, 6.) The trial court sentenced defendant to 40 years to life, comprised of 15 years to life for murder and an additional consecutive term of 25 years to life for personally and intentionally discharging a firearm causing death. (Id. at p. 8.) Defendant appealed the judgment on several grounds. We affirmed defendant’s conviction but also “remanded to the trial court to exercise its discretion whether or not to dismiss gun enhancements under Senate Bill No. 620 (§§ 12022.5, subd. (c), 12022.53, subd. (h)) and, if appropriate, resentence defendant accordingly.” (Monroe, supra, C077506 at p. 31.) The opinion further ordered the trial court correct the abstract of judgment to change the count number for the murder conviction and state that the enhancements were not stricken. (Ibid.) At the August 9, 2019 hearing on remand, the trial court declined to exercise its discretion to strike the firearm enhancement in the interests of justice. The trial court then filed a corrected abstract of judgment consistent with our directions in Monroe, which accurately reflected the same sentence that the trial court originally imposed. (Monroe, supra, C077506 at p. 8.) Defendant sent a letter to the trial court, asking it to