People v. Weathers CA3

Filed 12/19/23 P. v. Weathers CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C098189

Plaintiff and Respondent, (Super. Ct. No. CR-2014-3141)

v.

DAVEON TARIQ WEATHERS,

Defendant and Appellant.

A jury found defendant Daveon Tariq Weathers guilty of first degree robbery. Defendant appealed, and this court remanded the case for the trial court to consider dismissing a 10-year enhancement to his prison sentence imposed for personally using a firearm to commit the robbery (Pen. Code, § 12022.53, subd. (b)).1 The trial court declined to do so.

1 Undesignated statutory references are to the Penal Code.

1

Defendant now contends the trial court improperly weighed evidence of his traumatic childhood and was unaware of its discretion to impose a lesser enhancement. We conclude the trial court did not afford insufficient weight to evidence of defendant’s traumatic childhood, especially because it found dismissing the enhancement would endanger public safety. We also conclude the trial court was aware of its discretion to impose a lesser enhancement. Accordingly, we will affirm the judgment. BACKGROUND “Defendant robbed a cabdriver at gunpoint. A jury found defendant guilty of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)), and found true a personal use of a firearm enhancement (§ 12022.53, subd. (b)). The trial court sentenced defendant to an aggregate term of 14 years imprisonment,” including a 10-year term for the firearm enhancement. (People v. Weathers (May 10, 2021, C079704) [nonpub. opn.] (fn. omitted).) Defendant appealed from the judgment and this court remanded the matter “for the trial court to consider whether to exercise its discretion to strike or dismiss the section 12022.53, subdivision (b), enhancement in the interest of justice under section 1385, subdivision (a).” (Weathers, C079704.) In all other respects, we affirmed the judgment. (Ibid.) On remand, defendant argued the trial court should strike or dismiss the firearm enhancement and resentence him to a shorter prison term because he experienced childhood trauma, which new legislation established as a mitigating factor (see §§ 1170, subd. (b)(6), 1385, subd. (c)(2)(E)). In a supplemental brief, and again in closing argument at the hearing, defendant informed the trial court that, if it struck the firearm enhancement, it had discretion to impose an uncharged, lesser-included firearm enhancement under section 12022.5, pursuant to this court’s decision in People v. Johnson (2022) 83 Cal.App.5th 1074 (Johnson). Nevertheless, defendant “[stood] by his original request to have the court strike the [section] 12022.53 enhancement without imposing the lesser enhancement.”