People v. Baumgartner CA4/1

I.

INTRODUCTION

A jury found Steven Michael Baumgartner guilty of second degree

murder (Pen. Code, § 187, subd. (a)),1 and found true allegations that he personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally used a firearm (§ 12022.53, subd. (b)). The trial court sentenced Baumgartner to 40 years to life in prison, which included 15 years to life for the murder conviction and 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The court stayed execution of the remaining firearm enhancements. In Baumgartner’s initial appeal, we affirmed the underlying convictions. While Baumgartner’s appeal was pending, the Legislature amended section 12022.53, subdivision (h) to permit trial courts to strike or dismiss section 12022.53 firearm enhancements pursuant to section 1385 in the interest of justice. We accepted the People’s concession that the change in the law applied retroactively to Baumgartner’s case. Accordingly, we vacated Baumgartner’s sentence and remanded the matter for resentencing to permit the trial court to exercise its…