People v. Graham CA1/5

Filed 8/7/23 P. v. Graham CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A165018 v. MARK ALAN GRAHAM, (Solano County Super. Ct. No. FCR347124) Defendant and Appellant.

Effective January 1, 2022, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1), which “amended [Penal Code] section 1385 to provide guidance regarding the exercise of discretion in dismissing sentencing enhancements.” (People v. Anderson (2023) 88 Cal.App.5th 233, 238, review granted Apr. 19, 2023, S278786 (Anderson).)1 Defendant and appellant Mark Alan Graham (appellant) contends the amendments obligated the trial court to dismiss a 25-years-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)) added to the sentence for a robbery conviction, as well as enhancements added to a stayed assault conviction. Because the court concluded dismissal of the 25-years-to-life enhancement would not be “in the furtherance of justice” (§ 1385, subd. (c)(1)), we conclude

1 All undesignated statutory references are to the Penal Code.

1

the trial court was not required to dismiss the enhancements at issue on appeal, despite the use of the word “shall” in section 1385, subdivisions (c)(2)(B) & (c)(2)(C). BACKGROUND In September 2017, while armed with a firearm, appellant and an accomplice robbed a marijuana grow operation, shooting one of the victims in the leg.2 In September 2021, a jury convicted appellant of robbery (§ 211), attempted robbery (§§ 664, 211), being a felon in possession of a firearm (§ 29800, subd. (a)), and assault with a firearm (§ 245, subd. (a)(2)). The jury found true an enhancement to the robbery charge for personal and intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)), and enhancements to the assault charge for personal use of a firearm (§ 12022.5) and personal infliction of great bodily injury (§ 12022.7, subd. (a)). In April 2022, the trial court sentenced appellant to a total term of 27 years to life, comprised of the low term of two years on the robbery conviction, plus 25 years to life on the firearm enhancement. Appellant argued the amendments to section 1385 required the court to dismiss the enhancement, but the court concluded it retained discretion and found it would not be “in the interest of justice” to dismiss the enhancement. The court ordered that the sentence on the attempted robbery charge would run concurrently, and the court stayed the sentences on the remaining two counts under section 654. The stayed sentence on the assault conviction was 15 years, including a 10-year firearm enhancement and a 3-year great bodily injury enhancement. The present appeal followed.