People v. Rodgers CA3

Filed 8/30/22 P. v. Rodgers CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095203

Plaintiff and Respondent, (Super. Ct. No. 13F04912)

v.

ELIJAH RODGERS,

Defendant and Appellant.

In an earlier appeal, we affirmed defendant Elijah Rodgers’s convictions, but remanded the matter to allow the trial court to exercise its discretion to strike defendant’s firearm enhancements in light of legislative changes to sentencing law. On remand, the trial court declined to strike defendant’s firearm enhancements. Defendant appeals, arguing the trial court on remand apparently did not understand the scope of its discretion to impose a lesser included firearm enhancement. The People disagree, but ask us to correct an unauthorized aspect of the sentence as originally imposed.

1

We agree with the Attorney General that part of defendant’s original sentence was unauthorized and conclude it must be vacated and the matter remanded for a full resentencing hearing. That conclusion moots the parties’ other contentions. FACTUAL AND PROCEDURAL BACKGROUND The underlying facts and procedural history of defendant’s case are not material to the instant appeal. It suffices to say that in a prior opinion we (1) affirmed defendant’s 2015 convictions for murder (Pen. Code, § 187, subd. (a)—count one)1 and shooting at an occupied vehicle (§ 246—count two), and the jury’s true findings regarding allegations defendant personally and intentionally discharged a firearm, causing death, personally used a firearm, and committed the offenses for the benefit of a criminal street gang (§§ 12022.53, subd. (d), 12022.5, subd. (a), 186.22, subd. (b)(1)); and (2) remanded the matter to allow the trial court to exercise discretion granted to it by a 2018 amendment to section 12022.53, subdivision (h), which permits trial courts to strike or dismiss firearm enhancements. (People v. Rodgers (May 4, 2021, C080976) [nonpub. opn.].)2 At resentencing on remand in October 2021, defense counsel told the trial court, “You don’t have to strike the entirety of the enhancement. It’s a 10, 20, to life. Some striking and some leniency . . . wouldn’t hurt.” The trial court characterized the issue before it, explaining that this court “sent [the matter] back to the Trial Court only for consideration of whether a Judge should, in the interest of justice, strike [defendant’s] personal use of a firearm because the law changed on that.” And, “[A]ll [defendant] is here for in front of me is to see if I would be willing