People v. Stinson CA3

Filed 5/24/22 P. v. Stinson CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. OPINION ON TRANSFER

DAVONTE STINSON,

Defendant and Appellant.

This case returns to us on transfer from the California Supreme Court with directions to vacate our previous decision and reconsider in light of People v. Tirado (2022) 12 Cal.5th 688.

1

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. In an unpublished opinion, we affirmed the trial court’s order. (People v. Stinson, April 29, 2022, C093993 [nonpub. opn.].) On transfer, defendant contends the matter must be remanded to allow the trial court to exercise its discretion whether to strike or reduce the section 12022.53, subdivision (b) firearm enhancement. The Attorney General offers no opposition. We will remand the matter to allow the trial court to exercise its discretion accordingly. 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].)