Filed 4/11/19
                             CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                        DIVISION FIVE


 THE PEOPLE,
            Plaintiff and Respondent,
                                                      A154092
 v.
 WARREN OLEG MORRISON, JR.,                           (San Mateo County
                                                      Super. Ct. No. SF400896A)
            Defendant and Appellant.


        Appellant Warren Oleg Morrison, Jr. was tried before a jury and convicted of the
first degree murder of Jarmal Magee with an enhancement for personally and
intentionally discharging a firearm causing death. (Pen. Code, § 187, subd. (a),
12022.53, subd. (d).)1 In this appeal from a sentence of 50 years to life after a recall of
the sentence under section 1170, subdivision (d)(1),2 appellant contends the trial court
misunderstood the scope of its discretion under recent amendments to section 12022.53,
which allow the court to strike an enhancement imposed under its provisions. We agree
the court had the discretion to impose a lesser firearm enhancement and remand the case
for resentencing so it can exercise its discretion.
                                        I. BACKGROUND
        Due to the limited nature of the issue raised in this appeal, it is not necessary to
discuss the facts at length. Briefly, on October 25, 2015, appellant shot Magee several

        1
            Further statutory references are to the Penal Code unless otherwise indicated.
        2
        Appellant has separately appealed from the judgment of conviction, which we
affirm by separate opinion filed this same date. (People v. Warren Morrison (April __,
2019, A152440) [nonpub. opn.].)

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times during an argument. Magee’s girlfriend at the time testified that appellant pulled
the gun from his own waistband and continued to shoot even after Magee was disabled.
Appellant claimed Magee pulled the gun from his (Magee’s) waistband and it initially
discharged during their struggle; he continued to shoot Magee after gaining control of the
gun because he was angry and afraid. The jury convicted appellant of first degree
premeditated murder and found a firearm enhancement true under section 12022.53,
subdivision (d).
       Appellant was sentenced to prison for 50 years to life on September 7, 2017—25
years to life on the murder count and 25 years to life for the firearm enhancement. On
December 6, 2017, appellant filed a request to recall the sentence pursuant to section
1170, subdivision (d)(1), based on recent amendments to section 12022.53 that gave the
court the discretion, effective January 1, 2018, to strike a firearm enhancement under its
provisions. The court held a hearing on January 3, 2018 in which it recalled the sentence
but denied the request to strike the firearm enhancement. In a hearing held on February
8, 2018, at which appellant was personally present, the court reimposed the original
sentence of 50 years to life, consisting of 25 years to life for the murder count and 25
years to life for the firearm enhancement.
                                      II. DISCUSSION
       Appellant argues the case should be remanded for resentencing because the court
did not understand the scope of its discretion. He acknowledges that the trial court acted
properly in declining to strike the enhancement completely. But he argues the court had
the discretion to modify the enhancement from that established by section 12022.53,
subdivision (d), which carries a term of 25 years to life, to a “lesser included”
enhancement under section 12022.53, subdivision (b) or (c), which carry lesser terms of
10 years or 20 years, respectively.
       “Section 12022.53 sets forth the following escalating additional and consecutive
penalties, beyond that imposed for the substantive crime, for use of a firearm in the
commission of specified felonies, including [] murder: a 10-year prison term for personal
use of a firearm, even if the weapon is not operable or loaded (id., subd. (b)); a 20-year


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term if the defendant ‘personally and intentionally discharges a firearm’ (id., subd. (c));
and a 25–year–to–life term if the intentional discharge of the firearm causes ‘great bodily
injury’ or ‘death, to any person other than an accomplice’ (id., subd. (d)). For these
enhancements to apply, the requisite facts must be alleged in the information or
indictment, and the defendant must admit those facts or the trier of fact must find them to
be true.” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124–1125.) Section 12022.53,
subdivision (f) provides, “Only one additional term of imprisonment under this section
shall be imposed per person for each crime. If more than one enhancement per person is
found true under this section, the court shall impose upon that person the enhancement
that provides the longest term of imprisonment . . . .”
       The information in this case originally charged appellant with three firearm
enhancements: personal use of a firearm, personal discharge of a firearm, and personal
discharge of a firearm causing death. (§ 12022.53, subdivision (b)–(d).) At trial, the
prosecutor amended the information to remove the enhancements for personal use and
discharge of a firearm under section 12022.53, subdivisions (b) and (c), leaving only the
enhancement for personal discharge causing death under section 12022.53, subdivision
(d). The jury found this enhancement allegation to be true.
       At the time of sentencing in this case, in September 2017, trial courts did not have
the discretion to strike enhancements under section 12022.53. (Former § 12022.53, subd.
(h).) On October 11, 2017, Governor Brown signed Senate Bill 620 (2017–2018 Reg.
Sess.), which amended sections 12022.5 and 12022.53 to provide trial courts with the
discretion to strike a firearm enhancement or finding. (Stats 2017, ch. 682.) Senate Bill
620 added the following language to both statutes: “The court may, 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 by this section. The authority provided
by this subdivision applies to any resentencing that may occur pursuant to any other law.”
(Stats 2017, ch. 682, §§ 1(c) –2(h).)
       Courts now may “strike or dismiss” an enhancement under section 12022.53,
subdivision (d) in the interests of justice under section 1385. In a case where the jury had


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also returned true findings of the lesser enhancements under section 12022.53,
subdivisions (b) and (c), the striking of an enhancement under section 12022.53,
subdivision (d) would leave intact the remaining findings, and an enhancement under the
greatest of those provisions would be mandatory unless those findings were also stricken
in the interests of justice. But what if, as here, enhancements under section 12022.53,
subdivisions (b) and (c) were not also alleged? May the court impose one of those lesser
enhancements in lieu of the greater enhancement under section 12022.53, subdivision (d)
if the court finds it is in the interests of justice to do so?
       Case law has recognized that the court may impose a “lesser included”
enhancement that was not charged in the information when a greater enhancement found
true by the trier of fact is either legally inapplicable or unsupported by sufficient
evidence. (People v. Fialho (2014) 229 Cal.App.4th 1389, 1395–1396 (Fialho)
[enhancement for personal use of a firearm under section 12022.5, subdivision (a) was
authorized although it was not charged when defendant was convicted of voluntary
manslaughter as a lesser included offense of murder, to which section 12022.53, which
was found true by the jury, does not apply]; People v. Strickland (1974) 11 Cal.3d 946,
961; People v. Lucas (1997) 55 Cal.App.4th 721, 743; People v. Allen (1985)
165 Cal.App.3d 616, 627 [arming enhancement under section 12022 imposed when
section 12022.5 did not apply to conviction]; People v. Dixon (2007) 153 Cal.App.4th
985, 1001–1002 [substitution of deadly weapon enhancement under section 12022,
subd. (b) for section 12022.53, subd. (b) enhancement, when BB or pellet gun did not
qualify as “firearm” under statute].) This is so regardless of section 1170.1, subdivision
(e), which requires all enhancements to be pleaded and proved in the accusatory pleading.
(Fialho, at pp. 1397–1399.)
       Under these cases, the court could impose an uncharged enhancement under
section 12022.53, subdivision (b) or (c) in lieu of an enhancement under section
12022.53, subdivision (d) if it was unsupported by substantial evidence or was defective
or legally inapplicable in some other respect. We see no reason a court could not also
impose one of these enhancements after striking an enhancement under section 12022.53,


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subdivision (d), under section 1385. This conclusion is further buttressed by
People v. Marsh (1984) 36 Cal.3d 134, 143–144, in which the court remanded for
resentencing and held the court could strike allegations of ransom and great bodily harm
to make the defendant eligible for a Youth Authority3 commitment. “In discussing the
scope of section 1385, we do not mean to suggest that the court’s only choices are to
strike both the bodily harm and ransom allegations for YA eligibility or to deny the
motion entirely and sentence defendant to prison for life without possibility of parole.
Although those were the only alternatives urged at the time of sentencing, we note that
there is a broad range of sentencing options between those extremes. For example, the
court could strike only the bodily harm allegation, thereby reducing the kidnaping
sentence to life with possibility of parole, which carries a minimum parole eligibility term
of seven years. [Citation.] . . . [¶] In sum, the court has a wide range of sentencing
choices short of imposing the imprisonment without possibility of parole.” (Id. at
p. 144.)
       The court had the discretion to impose an enhancement under section 12022.53,
subdivision (b) or (c) as a middle ground to a lifetime enhancement under section
12022.53, subdivision (d), if such an outcome was found to be in the interests of justice
under section 1385. The Attorney General urges us to affirm the trial court’s decision
regardless, arguing that it is clear from the court’s comments it would not exercise its
discretion even if it had the power to do so and that a remand would be futile.
(People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) We disagree.
       The court denied the motion to strike the 25-year-to-life enhancement, noting:
“The two things that seem to me the most critical in terms of the decision, the two factors
were the vulnerability of the victim and the defendant’s lack of really, in my view, [of]
meaningful remorse but, particularly, the brutal nature of the crime and the vulnerability
of the victim. The fact that the defendant stood over the victim when he was absolutely

       3
         The Youth Authority is now known as the Division of Juvenile Facilities, which
is part of the Division of Juvenile Justice, which in turn is part of the Department of
Corrections and Rehabilitation. (In re D.J. (2010) 185 Cal.App.4th 278, 280, fn. 1.)

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helpless and shot him three times, in my mind, was an extremely vicious crime.” This
showed that the court thought a firearm enhancement was appropriate, but it does not
show which firearm enhancement it believed was best suited to this case. Although the
court stated adequate reasons for declining to strike the lifetime enhancement under
section 12022.53, subdivision (d), the record does not reflect whether it understood that it
could impose a lesser enhancement under section 12022.53, subdivision (b) or (c)
instead. (See People v. Lua (2017) 10 Cal.App.5th 1004, 1007 [remand appropriate in
face of ambiguous record, so court could consider striking some or all of Health and
Safety Code § 11370.2 enhancements].)
       “ ‘ “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 can no more exercise that ‘informed discretion’ than
one whose sentence is or may have been based on misinformation regarding a material
aspect of a defendant’s record.” ’ ” (People v. Billingsley (2018) 22 Cal.App.5th 1076,
1081.) At the time of resentencing, no published case had held an uncharged lesser
firearm enhancement could be imposed in lieu of an enhancement under section
12022.53, subdivision (d) in connection with striking the greater enhancement. The
amendment to section 12022.53 was new, and because it does not appear the court
considered the issue now raised, we remand for resentencing. We express no opinion as
to how the court should exercise its discretion on remand.
       This result is not contrary to People v. Fuhrman (1997) 16 Cal.4th 930, 944–946
(Fuhrman), in which the court concluded that a remand for resentencing on direct appeal
was not required when the record was silent as to whether the court understood its
discretion to strike prior convictions under the Three Strikes law under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13 (Romero). The Fuhrman
court acknowledged that in cases where sentencing occurred before the issuance of the
decision in Romero, when the Three Strikes law was relatively new and there was a
conflict among the courts of appeal as to whether a trial court had the discretion to strike
prior convictions on its own motion, it was not “appropriate to rely upon the rule that a


                                              6
trial court ordinarily is presumed to have correctly applied the law [citations], or to find
that a defendant who failed to anticipate our subsequent decision in Romero ‘waived’ or
‘forfeited’ his or her right to raise the issue.” (Fuhrman, at p. 945.) But, because of the
“ ‘unduly cumbersome and costly process’ ” of remanding every such silent record case
(id. at p. 951), and because in many cases the “question of striking one or more prior
convictions. . . may not have been mentioned at sentencing by either the trial court or
defense counsel because all those involved in the proceeding recognized that, in view of
the defendant’s background and the circumstances of the current offense, the exercise of
such discretion in the defendant’s favor was not a realistic possibility” (id. at pp.
945–946), it was appropriate to impose a general rule against remand on direct appeal,
without prejudice to the defendant filing a petition for writ of habeas corpus in an
appropriate case (id. at p. 946).
       The question of whether the court may elect to impose uncharged lesser firearm
enhancements as part of its discretion under Senate Bill 620 and the amended version of
section 12022.53, subdivision (h) only arises in cases where those enhancements have not
been charged in the alternative and found true, making remands on this ground
considerably less “cumbersome and costly” than the wholesale remand of silent record
Three Strikes cases considered in Fuhrman. (Id. at p. 946.) And after the publication of
our decision today, the usual presumption that a sentencing court correctly applied the
law will apply and will ordinarily prevent remand where the record is silent as to the
scope of a court’s discretion. (See Fuhrman, supra, 16 Cal.4th at p. 945.) Additionally,
the “lesser firearm enhancement” issue only arises when the court has been asked to
strike a greater enhancement under section 12022.53, making it unreasonable to infer, as
in Fuhrman, that in many cases the issue was not mentioned simply because the parties
thought an exercise of discretion unlikely. (Cf. Fuhrman, supra, 16 Cal.4th at pp.
945–946.) Assuming Fuhrman would be decided the same way today, it presents
different circumstances than the case before us.
                                     III. DISPOSITION
       The case is remanded for resentencing. The judgment is otherwise affirmed.


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                  NEEDHAM, J.




We concur.




JONES, P.J.




SIMONS, J.




              8
People v. Morrison / A154092
A154092/ People v. Warren Oleg Morrison, Jr.



Trial Court: Superior Court of San Mateo County


Trial Judge: Barbara Mallach


Counsel:     Hey and Hey, Randy Hey for the Defendant and Appellant.


             George Lawrence Schraer, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share, and
Alisha Carlile, Deputy Attorney, for Plaintiff and Respondent.




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