People v. Roessler CA3

Filed 6/8/22 P. v. Roessler CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C090009

Plaintiff and Respondent, (Super. Ct. Nos. MANCRFE20130001315 & v. MF036585B)

MICHAEL LEE ROESSLER, OPINION ON TRANSFER

Defendant and Appellant.

The trial court denied defendant Michael Lee Roessler’s request to strike a firearm enhancement under Penal Code section 12022.53.1 Defendant appeals that denial, arguing the court failed to consider whether it should reduce, rather than strike, the enhancement.

1 Undesignated statutory references are to the Penal Code.

1

We filed an opinion on July 16, 2021, in which we concluded the trial court did not, in fact, have the authority to reduce, rather than strike, the enhancement, and thus affirmed the judgment. Our Supreme Court granted review on September 29, 2021. On April 27, 2022, the Supreme Court transferred the matter back to this court with instructions to vacate our previous decision and reconsider the cause in light of People v. Tirado (2022) 12 Cal.5th 688 (Tirado), which concluded that trial courts are permitted to strike a firearm enhancement under section 12022.53, subdivision (d) and impose a lesser, uncharged firearm enhancement instead. Both parties submitted supplemental briefing. After reconsidering the matter consistent with the Supreme Court’s order, we will remand the matter to allow the trial court to exercise its discretion to strike or reduce the firearm enhancement. BACKGROUND Defendant shot and killed the victim following an extended dispute that began at a bar and concluded in front of the victim’s home. (People v. Roessler (May 15, 2018, C078697) [nonpub. opn.].) He was convicted of second degree murder. (§ 187.) The jury also found true allegations he intentionally and personally discharged a firearm causing death (§ 12022.53, subd. (d)), used a firearm (§ 12022.5, subd. (a)), and was armed with a firearm (§ 12022, subd. (a)(1)). On appeal, we affirmed the judgment but remanded the case to allow defendant to place additional information on the record that might later be relevant to future youth offender parole hearings and so the trial court could consider whether to exercise its discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682) to strike the section 12022.53, subdivision (d) firearm enhancement. (Roessler, supra, C078697.) The trial court held a hearing following the remand. Defendant argued the court should consider his intoxication at the time of the murder, the actions of other individuals in the dispute that preceded the shooting, and the sincere remorse defendant had shown as mitigating factors. The prosecution responded that defendant’s actions were not