P. v. Mitchell

Filed 5/28/20 P. v. Mitchell CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
BERNARD MITCHELL,
Defendant and Appellant.
B298910
(Los Angeles County
Super. Ct. No. BA422497)
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo, Deputy Attorney General,
and William H. Shin, Deputy Attorney General, for Plaintiff and
Respondent.

-- 1 of 8 --

2
* * * * * *
In People v. Mitchell (Nov. 1, 2018, B281809) [nonpub.
opn.], we remanded this case for resentencing to allow the trial
court to consider whether the enhancements for “personal[] use[]
[of] a firearm” under Penal Code section 12022.531 should be
stricken pursuant to section 1385. The trial court declined to do
so. Bernard Mitchell (defendant) appeals the trial court’s ruling.
We conclude there was no abuse of discretion and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In August 2013, defendant and a companion entered a One
West Bank in Los Angeles just after it opened its doors, each with
his face obscured and each with a gun. After ordering the bank
manager and two tellers to “get on the ground,” one robber
directed the manager to the vault while the other held the tellers
at gunpoint. The robbers got away with $73,740 in cash.
In December 2013, defendant and a different companion
entered a different One West Bank in Los Angeles. This robbery
proceeded much like the prior robbery as to the three bank
employees inside the bank, except the gunmen got away with
only $63,800.
Cell phone records put defendant’s phone at the time and
place of each robbery, and one of the tellers from the December
2013 robbery identified defendant as one of the gunmen.
II. Procedural History
As to the first robbery, the People charged defendant with
three counts of second degree robbery (§ 211), and alleged his
1 All further statutory references are to the Penal Code
unless otherwise indicated.

-- 2 of 8 --

3
personal use of a firearm during the robbery (§ 12022.53, subd.
(b)), for each of the three victims inside the first bank. As to the
second robbery, the People again charged defendant with three
counts of second degree robbery, and again alleged his personal
use of a firearm during that robbery, as to each of the three
victims inside the second bank. As to both robberies, the People
further alleged that defendant “took, damaged, and destroyed
property of a value exceeding $50,000” (§ 12022.6, subd. (a)(1)).
The People also charged defendant with being a felon in
possession of a firearm (§ 29800, subd. (a)(1)).
A jury convicted defendant of all six robbery counts and
found true all six allegations of the personal use of a firearm as
well as the amount taken enhancement. The jury also convicted
defendant of being a felon in possession.
The trial court sentenced defendant to 40 years in state
prison. Specifically, the court used one of the second degree
robbery counts from the first robbery as the principal count and
imposed a sentence of 16 years, which was comprised of a high-
term base sentence of five years plus 10 years for the personal
use of a firearm and one year for the amount taken. For the
remaining five robbery counts, the court imposed consecutive
sentences of four years and eight months, comprised of a base
sentence of one year (calculated as one-third the midterm, three-
year base sentence for robbery) plus three years and four months
for the personal use of a firearm (calculated as one-third of the
10-year enhancement) plus four months for the amount taken
(calculated as one-third of the one-year enhancement). To that,
the court added a further consecutive sentence of eight months
for the felon-in-possession count (calculated as one-third of the
midterm sentence of two years).

-- 3 of 8 --

4
Defendant appealed his convictions and sentence. We
affirmed his convictions, but ordered stricken the amount taken
enhancement for the second robbery because the threshold for the
amount taken enhancement is $65,000 (not $50,000), and
because the second robbery did not meet this threshold. We also
remanded to allow the trial court to exercise its discretion to
“strike or dismiss” the personal use of a firearm enhancements
under the newly enacted section 12022.53, subdivision (h).
On remand, defendant argued that the “evidence that [he]
was actually inside the bank” was “circumstantial,” and asked
the court to (1) strike the firearm enhancements, or (2) “at least”
“perhaps run concurrent” some of those enhancements. The court
rejected defendant’s second request, stating, “If I do strike that
[enhancement], I have discretion to do that completely.” The
court also rejected defendant’s first request, finding no “good
cause to strike any firearm enhancement” because this case
involved two “takeover robber[ies]” that “caus[ed] great fear to
the victims” and because “defendant . . . had two prior[] [felony]
convictions at the time of th[ese]” robberies. Consistent with our
prior opinion, the court struck the amount taken enhancements
as to the second robbery and imposed a 39 year prison sentence.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his
motion to dismiss the personal use of a firearm enhancements.
Section 12022.53 imposes an additional, consecutive 10-
year prison sentence if a person “personally uses a firearm” “in
the commission” of one of several statutorily enumerated felonies.
(§ 12022.53, subd. (b).) Recently, our Legislature granted trial
courts the discretion to “strike or dismiss” this enhancement “in

-- 4 of 8 --

5
the interest of justice pursuant to Section 1385.” (Id., subd. (h).)
Although we review the meaning of this statute de novo (John v.
Superior Court (2016) 63 Cal.4th 91, 95), we review a trial court’s
discretionary decision not to “strike or dismiss” an enhancement
solely for an abuse of discretion (e.g., People v. Carmony (2004) 33
Cal.4th 367, 378 (Carmony)).
The trial court did not abuse its discretion in declining to
“strike or dismiss” the personal use of a firearm enhancements.
The court explained why there was not, in its view, “good cause”
to reduce defendant’s sentence by striking or dismissing those
enhancements—namely, due to the violent nature of the
robberies and defendant’s recidivism. These are entirely proper
considerations under section 12022.53, subd. (h) (e.g., People v.
Rocha (2019) 32 Cal.App.5th 352, 359 [looking to “individualized
considerations pertaining to the defendant and his or her offenses
and background”]), and refute the notion that the trial court
abused its discretion.
In response, defendant asserts that (1) a trial court abuses
its discretion when it is “not ‘aware of its discretion’ to” strike or
dismiss (Carmony, supra, 33 Cal.4th at p. 378); (2) People v.
Morrison (2019) 34 Cal.App.5th 217 (Morrison) held that a trial
court’s power to “strike or dismiss” enhancements under section
12022.53, subdivision (h) includes the power to substitute a lesser
included enhancement; and (3) the trial court here was not aware
that it had the discretion to impose the lesser included
enhancement for personal use of a firearm set forth in section
12022.5, subdivision (a). Although the first and third premises of
defendant’s argument are valid, the second premise is not.
To be sure, Morrison held that a court considering whether
to “strike or dismiss” the 25-year enhancement under section

-- 5 of 8 --

6
12022.53, subdivision (d) could also modify that enhancement to
impose either the 20-year or 10-year enhancements under section
12022.53, subdivisions (c) and (b), respectively, at least if all
three enhancements had been originally charged. (Morrison, at
pp. 221-225.)
But Morrison is inapt here for two reasons.
First, several courts have rejected Morrison’s holding in
deference to the plain language of section 12022.53, subdivision
(h) that limits a trial court’s discretion to “strik[ing]” or
“dismiss[ing]” enhancements—not “modifying” them by swapping
in lesser included enhancements. (See People v. Tirado (2019) 38
Cal.App.5th 637 (Tirado), review granted Nov. 13, 2019, No.
S257658; People v. Yanez (2020) 44 Cal.App.5th 452 (Yanez).) We
recently joined ranks with these courts. (People v. Garcia (2020)
46 Cal.App.5th 786, 788, review granted Apr. 22, 2020, No.
S260819.)
Second, Morrison does not aid defendant even if we accept
it as correct. As we explained in Garcia, supra, 46 Cal.App.5th at
p. 792:
“[A] court may instruct a jury on a lesser included offense
only if there is substantial evidence from which a rational jury
could find that “‘the defendant committed the lesser offense, and
that he is not guilty of the greater [charged] offense.’ [Citations.]”
(People v. Whalen (2013) 56 Cal.4th 1, 68.) The same rule
ostensibly applies when a court, if so requested, is deciding
whether to instruct on a lesser included enhancement.” (Italics
omitted.)
On the facts of this case, substantial evidence does not
support instructing the jury on the lesser included personal use of
a firearm enhancement set forth in section 12022.5 because no

-- 6 of 8 --

7
rational jury could find that defendant engaged in the conduct
warranting the lesser included enhancement (that is, personal
use of a firearm) but not the greater enhancement (that is,
personal use of a firearm in the commission of a robbery
(§ 12022.53., subd. (a)(4) [listing “robbery” as one of the offenses
triggering the more severe sentencing enhancements set forth in
section 12022.53])). That is because it was undisputed that, if
defendant personally used a firearm in this case, he was doing it
during the commission of the two charged robberies. Put
differently, either defendant was one of the gunmen and thus
personally used a firearm in each robbery, or he was not. There
is no basis for substituting in an enhancement that can qualify as
a lesser included enhancement as a legal matter (that is, when a
defendant personally uses a firearm but not during the
commission of a robbery) when it does not qualify as a lesser
included enhancement as a factual matter in this case. (Cf.
People v. Fialho (2014) 229 Cal.App.4th 1389, 1398 [applying
section 12022.5 as a lesser included enhancement when
defendant’s conviction is reduced to voluntary manslaughter,
which does not qualify for the greater enhancements set forth in
section 12022.53].) Defendant resists this conclusion, insisting
that “the most critical evidentiary dynamic in this case” is the
“equivocal” evidence that he was ever inside the two banks when
they were being robbed, but this argument is both an
impermissible collateral attack on the jury’s findings and
unavailing because it does not dispute that a personal use of a
firearm occurred during the robberies.

-- 7 of 8 --

8
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P.J.
ASHMANN-GERST
_________________________, J.
CHAVEZ

-- 8 of 8 --