California Court of Appeal Jun 8, 2022 No. E072752AUnpublished
Filed 6/8/22 P. v. Wohlfeil CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072752
v. (Super.Ct.No. SWF1707381)
MICHAEL ANTHONY WOHLFEIL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.
Affirmed in part; reversed in part with directions.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B.
Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
1
I. INTRODUCTION
Defendant and appellant, Michael Wohlfeil, was convicted of second degree
robbery (Pen. Code, § 211, count 1);1 two counts of assault with a firearm (§ 245,
and dissuading a witness (§ 136.1, subd. (c), count 5). Additionally, the jury found true
special allegations that defendant intentionally discharged a firearm in the commission of
count 1, and his sentence included a 20-year prison enhancement in connection with that
finding (§ 12022.53, subd. (c)). Defendant appeals, requesting only that we remand the
matter to allow the trial court to exercise its discretion to consider whether to strike the
enhancement and impose a lesser, uncharged firearm enhancement in its place under the
authority of section 12022.53, subdivision (h).
On October 5, 2020, this court issued an opinion affirming the judgment after
concluding the trial court had no discretion to impose a lesser, uncharged enhancement
under section 12022.53. At the time, the Courts of Appeal were divided on the extent of
the trial court’s discretion on this issue. However, in January 2022, our Supreme Court
resolved the split in authority, concluding that, “[w]hen an accusatory pleading alleges
and the jury finds true the facts supporting a section 12022.53(d) enhancement, and the
court determines that the section 12022.53(d) enhancement should be struck or dismissed
under section 12022.53(h), the court may, under section 12022.53(j), impose an
1 Undesignated statutory references are to the Penal Code.
2
enhancement under section 12022.53(b) or (c).” (People v. Tirado (2022) 12 Cal.5th
688, 700 (Tirado).)
On April 27, 2022, the Supreme Court remanded this case to us with directions to
vacate our prior opinion and reconsider the cause in light of Tirado. The parties filed
supplemental briefs on the issue, and we agree with the parties that under Tirado, the
matter should be remanded to the trial court for resentencing.
II. FACTS AND PROCEDURAL HISTORY
In April 2017, G.F. and B.S. drove to the parking lot of a fast-food restaurant with
the intent to meet C.S. and sell her heroin. When they arrived at the parking lot, C.S. met
them and climbed into the back seat of the vehicle. As G.F. turned to speak with C.S., he
felt a gun press against his neck through his open driver’s side window and heard a voice
tell him not to move. At trial, G.F. identified defendant as the person holding the gun.
While holding the gun to G.F., defendant demanded money and argued with B.S.
At some point, defendant turned the gun toward B.S.; B.S. jumped out of the car and
began to run; and defendant fired the gun. Defendant then took a backpack that B.S. had
left in the car, as well as money from a wallet B.S. had also left. Defendant demanded
G.F. drive defendant and C.S. to a motel away from the scene, and G.F. complied out of
fear. After dropping the two off at the motel, G.F. drove away as fast as he could.
As a result of this incident, defendant was convicted of second degree robbery
(§ 211, count 1); two counts of assault with a firearm (§ 245, subd. (a)(2), counts 2 & 3);
false imprisonment by violence (§ 237, subd. (a), count 4); and dissuading a witness
3
(§ 136.1, subd. (c), count 5). Additionally, the jury found true special allegations that
defendant intentionally discharged a firearm in the commission of count 1 (§ 12022.53,
subd. (c)), and that he personally used a firearm in the commission of count 4 (§ 12022.5,
subd. (a)).
The trial court sentenced defendant to a total of 29 years in state prison.2 This
sentence included a 20-year enhancement for violation of section 12022.53,
subdivision (c). Defendant requested the trial court exercise its discretion to strike the
enhancement in the interests of justice pursuant to section 12022.53, subdivision (h), but
the trial court expressly declined to strike the enhancement. Defendant also inquired
whether the court had the authority to reduce the enhancement to the 10-year penalty
found in the same statute.3 The court indicated that it had the authority to impose the
enhancement or strike it, but it lacked the authority to reduce it to the 10-year
enhancement.
2 Specifically, the trial court imposed the midterm of three years for the robbery of B.S. on count 1 (§ 211), enhanced by 20 years for the intentional discharge of a firearm (§ 12022.53, subd. (c)); a concurrent term of three years for the assault of B.S. on count 2 (§ 245, subd. (a)(2)); a consecutive term of one year, representing one-third the midterm for the assault of G.F. on count 3 (§ 245, subd. (a)(2)); a consecutive term of eight months, representing one-third the midterm for the false imprisonment of G.F. on count 4 (§ 237, subd. (a)), enhanced by one year four months for the use of a firearm (§ 12022.5, subd. (a)); and a consecutive term of three years, representing the midterm for dissuading a witness on count 5 (§ 136.1, subd. (c)).
3 Section 12022.53(b) provides for a 10-year enhancement where a person personally uses a firearm in the commission of specified felonies.
4
III. DISCUSSION
Defendant’s only claim on appeal is that this matter must be remanded to allow the
trial court to exercise its discretion to potentially impose a lesser, uncharged firearm
enhancement in place of the 20-year enhancement imposed pursuant to section 12022.53,
subdivision (c). In light of Tirado, we agree that the matter must be remanded for this
purpose.
Section 12022.53 provides three different sentence enhancements for the personal
use of a firearm in the commission of enumerated offenses: a 10-year enhancement for
the personal use of a firearm (§ 12022.53, subd. (b)); a 20-year enhancement for the
personal and intentional discharge of a firearm (§ 12022.53, subd. (c)); and a 25-year-to-
life enhancement for the personal and intentional discharge of a firearm causing great
bodily injury or death (§ 12022.53, subd. (d)). Recently, the Legislature amended the
statute to include the following: “The court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise
required to be imposed by this section.” (§ 12022.53, subd. (h); Stats. 2017, ch. 682,
§ 2.)
Tirado clearly establishes “that a trial court has the discretion to strike a greater,
charged section 12022.53 enhancement and impose a lesser, uncharged section 12022.53
enhancement where the facts supporting that lesser enhancement were alleged in the
information and found true by the jury.” (People v. McDavid (2022) 77 Cal.App.5th 763,
772; Tirado, supra, 12 Cal.5th at p. 700.)
5
In this case, defendant requested the trial court exercise its discretion to impose a
lesser enhancement. However, the trial court denied the request based upon the belief
that it did not have such discretion. “ ‘[W]hen the record shows that the trial court
proceeded with sentencing on the . . . assumption it lacked discretion, remand is
necessary so that the trial court may have the opportunity to exercise its sentencing
discretion at a new sentencing hearing.” (People v. McDaniels (2018) 22 Cal.App.5th
420, 425.) Thus, remand is necessary in this case to permit the court to exercise its
discretion as clarified in Tirado. We express no opinion as to how the trial court should
exercise that discretion under the facts of this case.
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IV. DISPOSITION
Defendant’s sentence is ordered vacated. The matter is remanded for full
resentencing in light of the rule set forth in People v. Buycks (2018) 5 Cal.5th 857.
Among its other sentencing options, the trial court shall consider whether to exercise its
discretion to strike the enhancement under section 12022.53, subdivision (c), and impose
a lesser enhancement. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
McKINSTER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a trial court has the discretion to strike a greater, charged firearm enhancement under Penal Code section 12022.53 and impose a lesser, uncharged firearm enhancement if the facts supporting the lesser enhancement were found true by the jury.
Issues
Does a trial court have the discretion to strike a charged firearm enhancement under section 12022.53 and impose a lesser, uncharged enhancement in its place?
Disposition. Affirmed in part; reversed in part with directions.
Quotations verified verbatim against the opinion
“[w]hen an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53(d) enhancement, and the court determines that the section 12022.53(d) enhancement should be struck or dismissed under section 12022.53(h)”
“a trial court has the discretion to strike a greater, charged section 12022.53 enhancement and impose a lesser, uncharged section 12022.53 enhancement where the facts supporting that lesser enhancement were alleged in the information”