Filed 6/2/22 P. v. Mitchell CA2/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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)

 OPINION ON REMAND

APPEAL from a judgment 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.

Rob Bonta and Xavier Becerra, Attorneys General, Lance 

E. Winters, Chief Assistant Attorney General, Susan Sullivan 
2

Pithey, Assistant Attorney General, David E. Madeo and William 

H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

A jury convicted Bernard Mitchell (defendant) of six counts 

of second degree robbery, one for each victim of his two bank 

robberies. The jury also found true six enhancements for the 

personal use of a firearm (Pen. Code, § 12022.53, subd. (b)).1

Those enhancements added a total of 26 years and eight months 

to his sentence. In the most recent sentencing proceeding, 

defendant asked the trial court to exercise its then-newly 

conferred discretion under section 12022.53, subdivision (h), to 

dismiss the firearm enhancements entirely or instead to impose a 

lesser sentence under the enhancement for personal use of a 

firearm contained in section 12022.5. The trial court declined, 

and we affirmed that ruling. (People v. Mitchell (May 28, 2020, 

B298910) [nonpub. opn.].) Our Supreme Court granted review in 

August 2020; handed down People v. Tirado (2022) 12 Cal.5th 

688 (Tirado) holding that trial courts do have the discretion to 

dismiss a greater enhancement for an uncharged lesser statutory 

enhancement; and remanded this case back to us for 

consideration in light of Tirado. 

Because Tirado unequivocally rejects some of the reasoning 

we adopted in our prior opinion, that prior opinion and decision is 

vacated. We remand the matter for a new sentencing hearing for 

the trial court to reconsider its decision whether to strike the 

section 12022.53, subdivision (b) enhancements in this case in 

light of the broader discretion, recognized in Tirado, to impose 

unproven lesser enhancements, including under section 12022.5.

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In August 2013 and December 2013, defendant and a 

companion entered two different One West Bank locations in Los 

Angeles. Each time, they ordered bank employees, at gunpoint, 

to lie on the ground. They made away with $73,740 in cash from 

the August robbery and $63,800 in cash from the December 

robbery.

II. Procedural History 

As to the first robbery, the People charged defendant with 

three counts of second degree robbery (§ 211) and alleged his 

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.2

2 As to each robbery, the People also alleged an enhancement 

based on the amount taken. During defendant’s first appeal, we 

concluded that the trial court erred in instructing the jury on this 

enhancement for one of the robberies, and on remand the trial 

court reduced defendant’s sentence by one year.

The People also charged Mitchell with being a felon in 

possession of a firearm (§ 29800, subd. (a)(1)), and a jury 

convicted him of that charge.

Because these additional allegations and crime are not at 

issue in this appeal, we will not discuss them further.
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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 trial court originally sentenced defendant to 40 years 

in state prison. 

After a successful appeal on a sentencing issue unrelated to 

this appeal and remand, the trial court sentenced defendant to 39 

years in state prison. In coming to this calculation, 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 oneyear 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). 

During this resentencing, defendant asked the trial 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 
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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. 

Defendant filed a timely appeal.

As noted above, we affirmed, but our Supreme Court 

vacated our prior opinion and has remanded the matter for us to 

reconsider in light of Tirado.

DISCUSSION

Section 12022.53 creates three firearm enhancements—a 

25-year enhancement for “personally and intentionally 

discharg[ing] a firearm and proximately caus[ing] great bodily 

injury” (§ 12022.53, subd. (d)), a 20-year enhancement for 

“personally and intentionally discharg[ing] a firearm” (but 

without proximately causing great bodily injury) (id., subd. (c)), 

and a 10-year enhancement for “personally us[ing] a firearm” (id., 

subd. (b)). That section also grants a trial court the discretion to 

“strike or dismiss an enhancement” it was “otherwise required to 

. . . impose[]” “in the interest of justice pursuant to Section 1385” 

(Id., subd. (h)), and to impose any enhancement so long as “the 

existence of any fact required under subdivision (b), (c), or (d) 

shall be alleged in the accusatory pleading and either admitted 

by the defendant in open court or found to be true by the trier of 

fact.” (Id., subd. (j).)

In Tirado, supra, 12 Cal.5th 688, our Supreme Court held 

that a trial court that “determines that [a] section 12202.53(d) 

enhancement should be struck or dismissed under section 

12022.53(h)” “may, under section 12022.53(j), impose an 

enhancement under section 12022.53(b) or (c),” “even if the lesser 

enhancements were not specifically charged . . . or found true by 

the jury.” (Id. at pp. 696, 700.) 
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In this case, however, the firearm enhancement charged is 

the lowest, 10-year enhancement under subdivision (b) of section 

12022.53. Thus, the question here is whether Tirado confers the 

discretion to strike this enhancement and substitute a lesserincluded firearm enhancement housed in a statute other than

section 12022.53. We conclude that the answer is “yes.” 

Although Tirado specifically dealt with a trial court’s power to 

strike one of the higher firearm enhancements under section 

12022.53 and to substitute a lesser firearm enhancement under 

section 12022.53, Tirado’s language and rationale are not so 

limited. As far as its language, Tirado held that subdivision (h) 

of section 12022.53 “permits a [trial] court to strike the [25-year] 

enhancement found true by the jury and to impose a lesser 

uncharged statutory enhancement instead”—and, tellingly, did 

not limit this language to the lesser uncharged statutory 

enhancements housed in section 12022.53. (Tirado, supra, 12 

Cal.5th at p. 692, italics added.) As far as its rationale, Tirado

favorably cited several decisions that have recognized a trial 

court’s authority to impose a lesser-included enhancement 

housed in a different statute. (Id., at pp. 697-699, citing People v. 

Fialho (2014) 229 Cal.App.4th 1389, 1395, 1398 [§ 12022.5, subd. 

(a) enhancement applied instead of charged § 12022.53, subd. (d) 

enhancement].) The recent decision in People v. McDavid (2022) 

77 Cal.App.5th 763, 774-775, is in accord.

Here, the trial court rejected defendant’s request to strike 

the firearm enhancements, explaining its view that, “If I do strike 

that [enhancement], I have discretion to do that completely.” 

(Italics added.) This language indicates the trial court’s belief 

that its choice was an all-or-nothing choice, one that did not 

comprehend the option of applying the section 12022.5, 
7

subdivision (a) enhancement. Because a court that is unaware of 

the scope of its discretion necessarily abuses that discretion 

(People v. Carmony (2004) 33 Cal.4th 367, 378), the trial court’s 

ruling is an abuse of discretion and defendant is entitled to an 

opportunity to ask the court to exercise its discretion within the 

full range of possible sentences in mind. The People concede as 

much.

In doing so, we express no opinion as to how the trial court 

should exercise its discretion on remand.

DISPOSITION

The judgment is reversed to the extent it imposed firearm 

enhancements pursuant to section 12022.53, subdivision (b) and 

the matter is remanded for resentencing with directions that the 

court exercise its discretion pursuant to section 12022.53, 

subdivisions (h) and (j). In all other respects, the judgment is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST 

_________________________, J.
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CHAVEZ