People v. Stinson CA3

Filed 11/29/21 P. v. Stinson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093993

Plaintiff and Respondent, (Super. Ct. No. 13F04902)

v.

DAVONTE STINSON,

Defendant and Appellant.

The trial court denied defendant Davonte Stinson’s request to strike or reduce a firearm enhancement under Penal Code section 12022.53, subdivision (b). 1 Defendant appeals, arguing the court misunderstood its discretion because it declined to modify the enhancement of conviction to an uncharged lesser enhancement not considered by the jury. Disagreeing, we affirm the order.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND A jury found defendant guilty of kidnapping for the purpose of robbery, two counts of robbery, and two counts of firearm possession by a felon. (People v. Stinson (2019) 31 Cal.App.5th 464, 474.) The jury also found true an enhancement allegation that defendant personally used a firearm to commit the offense. (§ 12022.53, subd. (b); Stinson, at p. 474.) The trial court sentenced defendant to a determinate term of 17 years eight months in state prison (including the mandatory 10 years for the firearm enhancement) plus a consecutive prison term of seven years to life. (Ibid.) On appeal, we affirmed the judgment, but remanded the case to allow the trial court to consider its new discretion to strike the firearm enhancement under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1-2). (People v. Stinson (Jan. 16, 2019, C077621) [nonpub. portion].) On remand, defendant moved the trial court to strike the enhancement; the People opposed the motion. After considering the parties’ arguments, the court denied the motion, finding it was not in the interests of justice to strike the enhancement. Defendant’s counsel then asked the court to “effectively reduce the [§] 12022.53(b) to a [§] 12022.5” but acknowledged he knew of no authority supporting the request. The court responded: “I appreciate the request. I don’t believe that I would have the authority to do that. It was a charging decision made. The Court of Appeal didn’t ask me to do that. And I don’t think I have the authority to do that.” Defendant timely appeals from that order. The case was fully briefed on August 23, 2021, and was assigned to this panel on September 30, 2021. DISCUSSION On appeal, defendant contends the trial court did not understand it had the ability to reduce his firearm enhancement to an uncharged lesser enhancement in lieu of striking it, and thus could not have exercised informed discretion. He relies on People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), where the Court of Appeal, First