People v. Bushey CA3 ( 2021 )

Filed 2/2/21 P. v. Bushey 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C089360
Plaintiff and Respondent, (Super. Ct. No. 12F05600)
v.
MARCE BUSHEY,
Defendant and Appellant.
A trial court denied defendant Marce Bushey’s request to strike firearm
enhancements under Penal Code sections 12022.5 and 12022.53.1 Defendant appeals that
denial, arguing the court did not fully understand the scope of its discretion when it made
its decision. We will affirm the judgment.
1 Undesignated statutory references are to the Penal Code.
1
I. BACKGROUND
Defendant and two others beat the victim with guns and took his car, along with
his wallet and cell phone. Defendant was convicted of second degree robbery (§ 211)
with personal use of a firearm (§ 12022.53, subd. (b)) and assault with a firearm (§ 245,
subd. (a)(2)) with personal use of a firearm (§ 12022.5, subd. (a)). Defendant appealed
and we affirmed the judgment, but vacated the sentence and remanded the case so the
trial court could consider whether to exercise its discretion under the newly enacted
sections 12022.53, subdivision (h) and 12022.5, subdivision (c), to strike or dismiss the
firearm enhancements. (People v. McBride et al. (March 29, 2018, C076802) [nonpub.
opn.].)
Before the resentencing hearing, defense counsel produced letters from defendant
expressing his remorse and explaining his post-release plans, reference letters from
friends and family, and evidence of defendant’s activities in prison, including positive
reviews from work supervisors, community college transcripts, and certificates of
completion for self-improvement courses. The prosecution produced several rules
violation reports from prison, including one for a positive drug test and others for refusals
to work.
At the hearing, defense counsel argued defendant “does stand outside the spirit
and the scheme . . . the legislature had in mind when they enacted those two gun
enhancements,” based on defendant’s rehabilitative efforts in prison. The prosecution
argued the court should “resentence the defendant to the same sentence that he was
originally sentenced to back in 2014,” because of defendant’s actions in the underlying
crime.
The court framed the issue as a decision whether defendant was entitled to
“leniency because of some very special or unique circumstance.” Although the court
commended defendant for his efforts while in prison, the court found defendant was not
entitled to such leniency: “And I recognize that you came before the Court very young,
2
without any prior record. But the crime, itself, when I look at how the crime occurred
and whether or not your use of the weapon in this case deserves some form of leniency, I
don’t think it does.
“And the reason for that is, as I said at your sentencing, is that [the victim] was
outnumbered in a very frightening situation with three people surrounding him in kind of
the open doorway of his car. Two of them had guns. Your codefendant, Mr. McBride,
had the gun pointed in his face.
“And, really, the assault on [the victim] was complete at that point when a gun
was pointed at him. But then the extra step that you took, Mr. Bushey, to hit him with the
gun and force him down to the ground and then Mr. McBride took his keys and you took
off in his car to effectuate the robbery, was really unnecessary and senseless. And when I
look at, ‘Why does someone deserve leniency,’ it’s not just looking at, as I indicated,
their prospects for the future but their decisions they made in the past.
“And it looks like your decision making is improving. And some of that may be
because of your time for reflection in custody. Some of that may be your maturity as you
get older, and I appreciate that.
“But when I weigh whether or not, given all the facts, this is a case that warrants
the Court exercising its discretion, I don’t believe it does. And as I indicated, it’s because
I don’t believe that these crimes fall outside of the legislative intent when they enacted
them.
“Despite your positive progress forward, when I balance all those together, I don’t
believe that outweighs the Court’s previous sentence, and I’m going to deny your request
to exercise my discretion and to strike those allegations today.” The court resentenced
defendant to the same “sentence he initially received back in 2014,” including the
enhancements under sections 12022.53, subdivision (b) and 12022.5, subdivision (a).
3
II. DISCUSSION
Defendant argues the trial court misunderstood the scope of its discretion at the
resentencing hearing. The court had the authority to strike only the “additional
punishments” imposed by the firearm enhancements, while leaving the enhancements
themselves intact, defendant asserts, but the court “made no mention of this option.”
Thus, the argument goes, the court did not exercise “informed discretion” and the case
must be remanded for another resentencing. We disagree.
As we explained in our previous decision (People v. McBride et al., supra,
C076802 at p. 16), sections 12022.53, subdivision (h) and 12022.5, subdivision (c) were
amended in 2017 to, “in the interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required to be imposed.”
(§§ 12022.5, subd. (c), 12022.53, subd. (h).) Section 1385 authorizes a trial court to
“strike or dismiss an enhancement, or to ‘instead strike the additional punishment for that
enhancement in the furtherance of justice.’ ” (In re Pacheco (2007) 155 Cal.App.4th
1439, 1444; § 1385, subd. (b)(1).)
A trial court’s refusal or failure to strike an enhancement allegation under section
1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367,
374.) “ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers [cannot] exercise that “informed discretion.” ’ ”
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) “ ‘ “[T]he burden is on the party
attacking the sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.” ’ . . .
‘ “ ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment
for the judgment of the trial judge.’ ” ’ ” (Carmony, supra, at pp. 376-377.)
4
Here, defendant does not identify any affirmative indication in the record that the
trial court misunderstood the scope of its sentencing discretion. The resentencing hearing
took place more than a year after the applicable statutory sections took effect, and we
presume the court properly understood its discretion under those sections. (People v.
Bradford (2010) 187 Cal.App.4th 1345, 1355 [“absent a showing to the contrary, the trial
court is presumed to have known and followed the applicable law and to have properly
exercised its discretion”].) The fact the court did not expressly set out every available
sentencing option is not evidence the court misunderstood the availability of those
options. Moreover, the trial court framed the hearing as deciding whether defendant was
entitled to “some form of leniency” and explained its ultimate decision by saying
defendant’s crimes did not fall “outside of the legislative intent” of the enhancement
statutes. These statements suggest the court considered the available options to offer
defendant a more lenient sentence and simply determined those options were not
appropriate because the firearm enhancement statutes were designed to apply to the
conduct for which defendant was convicted. The trial court’s statements thus support the
presumption that it understood the scope and purpose of its discretion, rather than the
contrary.
Defendant argues remand is required so, at the very least, the trial court may more
thoroughly document its reasons for declining to strike the additional punishment. But,
as explained above, the trial court already determined defendant’s crime did not
“deserve[] some form of leniency,” and found defendant’s original sentence, which
included the firearm enhancements, was the most appropriate sentence for his case. We
see no indication the trial court would render its decision any differently on remand.
(People v. Flores (2020) 9 Cal.5th 371, 431-432.) We conclude the trial court did not
abuse its discretion when it declined to strike the firearm enhancements.
5
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
KRAUSE, J.
6