People v. Bunn CA3

Filed 5/12/21 P. v. Bunn CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091654

Plaintiff and Respondent, (Super. Ct. No. 08F06142)

v.

GARY LAMONT BUNN,

Defendant and Appellant.

Defendant Gary Lamont Bunn appeals from a resentencing order where the trial court declined to exercise its discretion in striking several personal use of a firearm enhancements (Pen. Code, § 12022.53, subd. (b)).1 We appointed counsel to represent defendant on appeal. Appointed counsel filed an opening brief invoking the independent judicial review procedures set forth in Anders v. State of California (1967) 386 U.S. 738

1 Undesignated statutory references are to the Penal Code.

1

[18 L.Ed.2d 493] and People v. Wende (1979) 25 Cal.3d 436 (Wende). Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

BACKGROUND In June 2010, a jury found defendant guilty of five counts of residential robbery (§ 211)--with the additional enhancement he committed these in concert with two or more persons (§ 213, subd. (a)(1)(a)) and that one of the robberies involved a victim of 65 years or older (§ 667.9, subd. (a))--and two counts of attempted first degree robbery (§§ 664/211). The jury also found true as to all seven counts defendant personally used a firearm (§ 12022.53, subd. (b)). The trial court sentenced him to 37 years in prison. Defendant appealed and on September 24, 2012, we found there was insufficient evidence supporting the personal use of a firearm allegation for two of the counts so we reversed those two findings and remanded for resentencing. (People v. Bunn (Sept. 24, 2012, C067731) [nonpub. opn.].) On remand, the trial court resentenced defendant to 37 years in prison. On November 6, 2018, after receiving a letter from the California Department of Corrections and Rehabilitation, the court corrected some issues in the sentencing minutes and defendant’s abstract of judgment. The court noted this was a form of resentencing and so it had discretion to strike any of the remaining section 12022.53, subdivision (b) personal use of a firearm enhancements. The court offered to hold a hearing, at either party’s request, on this issue and defendant requested such a hearing. The parties briefed and argued on whether the court can and should strike defendant’s section 12022.53, subdivision (b) enhancements. The court found it could strike the firearm enhancements but declined to exercise its discretion to do so given the