People v. Mitchell CA2/2

Filed 6/2/22 P. v. Mitchell CA2/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B298910

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA422497) v.

BERNARD MITCHELL, OPINION ON REMAND

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Affirmed.

Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan

Pithey, Assistant Attorney General, David E. Madeo and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent. ****** A jury convicted Bernard Mitchell (defendant) of six counts of second degree robbery, one for each victim of his two bank robberies. The jury also found true six enhancements for the 1 personal use of a firearm (Pen. Code, § 12022.53, subd. (b)). Those enhancements added a total of 26 years and eight months to his sentence. In the most recent sentencing proceeding, defendant asked the trial court to exercise its then-newly conferred discretion under section 12022.53, subdivision (h), to dismiss the firearm enhancements entirely or instead to impose a lesser sentence under the enhancement for personal use of a firearm contained in section 12022.5. The trial court declined, and we affirmed that ruling. (People v. Mitchell (May 28, 2020, B298910) [nonpub. opn.].) Our Supreme Court granted review in August 2020; handed down People v. Tirado (2022) 12 Cal.5th 688 (Tirado) holding that trial courts do have the discretion to dismiss a greater enhancement for an uncharged lesser statutory enhancement; and remanded this case back to us for consideration in light of Tirado. Because Tirado unequivocally rejects some of the reasoning we adopted in our prior opinion, that prior opinion and decision is vacated. We remand the matter for a new sentencing hearing for the trial court to reconsider its decision whether to strike the section 12022.53, subdivision (b) enhancements in this case in light of the broader discretion, recognized in Tirado, to impose unproven lesser enhancements, including under section 12022.5.