People v. Doulphus CA3

Filed 6/30/22 P. v. Doulphus CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C089263

Plaintiff and Respondent, (Super. Ct. No. NCR88402)

v. OPINION ON TRANSFER

ALAN DUANE DOULPHUS,

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 (Tirado). On remand, the trial court denied in part defendant Alan Duane Doulphus’s request to strike all three of the Penal Code1 section 12022.53 firearm enhancements associated with his offenses, striking only two of the enhancements. When defense counsel suggested the trial court could reduce the enhancements, the trial court

1 All further section references are to the Penal Code.

1

replied that it could not. Defendant appeals, arguing we should remand the matter to allow the trial court to exercise its discretion to impose a lesser enhancement. In an unpublished opinion, we affirmed the trial court’s ruling . (People v. Doulphus (June 30, 2021, C089263) [nonpub. opn.].) On transfer, defendant contends the matter must be remanded to allow the trial court to “exercise its discretion to modify the firearm enhancement.” (Capitalization omitted.) The People offer no opposition. We will remand the matter to allow the trial court to exercise its discretion. FACTUAL AND PROCEDURAL BACKGROUND Defendant pled guilty to three counts of robbery, each with a section 12022.53, subdivision (c) enhancement for discharging a firearm, and to one count of voluntary manslaughter, and was sentenced to a 42-year four-month state prison term. There was no stipulated term as part of the plea agreement. At sentencing, the trial court rejected defendant’s argument for a mitigated term for the principal robbery conviction, instead imposing an aggravated five-year term on one of the robbery counts as part of the 42-year four-month total term. In defendant’s first appeal, we remanded to allow the trial court to determine whether to exercise its discretion to strike the firearm enhancements pursuant to the then newly enacted Senate Bill No. 620, and otherwise affirmed. On remand, the trial court struck the firearm enhancements as to two of the robbery counts, for a total term of 29 years. When counsel suggested the trial court could dismiss or reduce the enhancements, the court replied that it could strike an enhancement but could not reduce it. Defendant timely appealed, and as explained above, we initially declined to remand the case but have now been directed to reconsider that decision. Having done so, we shall remand the matter to the trial court.