People v. Doulphus CA3

Filed 6/30/21 P. v. Doulphus CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C089263

Plaintiff and Respondent, (Super. Ct. No. NCR88402)

v.

ALAN DUANE DOULPHUS,

Defendant and Appellant.

Does the authority of a court to strike an otherwise valid enhancement in the interests of justice pursuant to Penal Code1 section 1385 include the authority to modify the enhancement to a lesser enhancement? Citing People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), defendant Alan Duane Doulphus asserts a trial court has this power in the context of the court’s authority to dismiss section 12022.53 firearm

1 Undesignated statutory references are to the Penal Code.

1

enhancements. We join other appellate courts to consider this position and reject Morrison and defendant’s contention. Defendant pleaded guilty to three counts of robbery (§ 211), each with a section 12022.53, subdivision (c) enhancement for discharging a firearm, and to one count of voluntary manslaughter (§ 192, subd. (a)), and was sentenced to a 42-year four-month state prison term. In his first appeal, we remanded to allow the trial court to determine whether to exercise its discretion to strike the firearm enhancements pursuant to the then newly enacted Senate Bill No. 620, and otherwise affirmed. On remand, the trial court struck the firearm enhancements as to two of the robbery counts, for a total term of 29 years. On appeal, defendant contends the matter should be remanded to allow the trial court to exercise its discretion to impose a lesser enhancement. We shall affirm. FACTUAL AND PROCEDURAL BACKGROUND Defendant, his brother Chase Doulphus, and Rogers Bounnhaseng conspired to rob a marijuana farm. The three, each armed with a firearm, entered a trailer on the farm and bound three workers with duct tape and zip ties. When one of the workers tried to flee, defendant and his brother fired at the fleeing victim, with the fatal shots coming from Chase. There was no stipulated term as part of the plea agreement. At sentencing, the trial court rejected defendant’s argument for a mitigated term for the principal robbery conviction, instead imposing an aggravated five-year term on one of the robbery counts as part of the 42-year four-month total term. On remand, the trial court recalled that Bounnhaseng agreed to cooperate early in the prosecution, and received a 22-year term as a result. The defense submitted multiple documents regarding his attempts at rehabilitation while incarcerated. Defense counsel asked the trial court to strike the section 12022.53 enhancements on all three robbery counts. When counsel suggested the trial court could dismiss or reduce the