Filed 8/18/26 P. v. Bowen CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F090758
Plaintiff and Respondent,
(Super. Ct. No. BF180086B)
v.
JERRY BOWEN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
Douglas C. Foster, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and Guerra, J.
Appointed counsel for Jerry Bowen (appellant) asked this court to review the
record to determine whether there are any arguable issues on appeal. (See People v.
Wende (1979) 25 Cal.3d 436.) Counsel filed an opening brief that sets forth the facts
relating to this appeal. Appellant was advised of the right to file a supplemental brief
within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and
we received no communication from appellant. Finding no arguable error that would
result in a disposition more favorable to appellant, we affirm the judgment. We do,
however, vacate the gang firearm enhancement in accordance with our prior appellate
decision.
The following is a brief description of the facts and procedural history of the case.
(See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
The evidence produced at trial is of limited relevance to the issues raised on
appeal, so we only summarize it briefly. In short, the victim responded to an internet
listing posted by appellant offering to purchase used video games. The victim drove to
the agreed upon meeting place, and appellant and his codefendant approached the
victim’s car and asked the victim to see the video games. After the codefendant finished
looking through the games, appellant drew a handgun and pointed it at the victim’s face.
Appellant searched through the victim’s pockets. Appellant then reached into the
victim’s car and took his handgun from the center console. (People v. Bowen (Oct. 7,
2024, F087373) [nonpub. opn.].)
In 2021, a jury convicted appellant of second degree robbery (Pen. Code,1 §§ 211,
212.5, subd. (c); count 1) with a personal use of a firearm enhancement (§ 12022.53,
subd. (b)), a gang firearm enhancement (§ 12022.53, subds. (b), (e)) and a gang
enhancement (§ 186.22, subd. (b)(1)), carrying a loaded and unregistered firearm
(§ 25850, subds. (a), (c)(6); count 3) with a gang enhancement (§ 186.22, subd. (b)(1)),
1 Undesignated statutory references are to the Penal Code.
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and other misdemeanor offenses. The trial court sentenced appellant to 22 years in state
prison.
In appellant’s initial appeal, we reversed the true finding for the gang
enhancements in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly
Bill 333) but otherwise affirmed the judgment. (People v. Bowen (Jun. 26, 2023,
F083347) [nonpub. opn.].) We remanded the matter to give the People the option of
retrying the enhancements, and for resentencing. Following remand, the People elected
not to retry appellant, and the matter proceeded to resentencing. At the resentencing
hearing, the trial court denied appellant’s request to strike the use of a firearm
enhancement and resentenced appellant to a total aggregate term of 12 years, including a
two-year term for the robbery charge, plus an additional 10 years for the enhancement
pursuant to section 12022.53, subdivision (b), plus 10 years for the enhancement pursuant
to section 12022.53, subdivisions (e) and (b) (the gang firearm enhancement), which that
court stayed pursuant to rule 4.447 of the California Rules of Court.
While appellant’s second appeal was pending, the Supreme Court held in People
v. McDavid (2024) 15 Cal.5th 1015 that when a trial court strikes a section 12022.53
firearm enhancement, it has the discretion “to impose a lesser included, uncharged
enhancement authorized elsewhere in the Penal Code.” (McDavid, at p. 1021.) Because
the trial court did not have the benefit of McDavid, and thus, was unaware of the scope of
its sentencing discretion, we again vacated appellant’s sentence and remanded for
resentencing. (People v. Bowen, supra, F087373.)
Appellant filed a resentencing brief, describing his “admirable and commendable”
participation in educational programming, self-help and training courses, job assignments
and vocational training. Appellant acknowledged disciplinary issues, including his
mutual combat with another inmate in 2022, participation in a riot and assault of another
inmate in 2023, and failure to report for work twice in 2024. He asked that the court
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strike all enhancements, or impose and stay sentence on the enhancements, or impose an
alternative firearm enhancement with a low or middle term of three to four years.
The prosecutor opposed appellant’s request and argued the requested two-year
sentence failed to account for appellant’s use of a firearm during the robbery, he showed
no remorse for his involvement in the crime until the court’s previous decision not to
reduce his sentence during his earlier resentencing, and he had participated in assaultive
misconduct while incarcerated.
During the November 12, 2025 resentencing hearing, the trial court acknowledged
its discretion to sentence appellant to a lesser and uncharged firearm enhancement but
indicated it did not believe it would be appropriate to do so. The trial court recognized
appellant’s lack of prior criminal history but characterized the circumstances in
aggravation as including sophistication in planning the robbery and using a firearm to rob
the victim. “But at the end of the day it is a very serious case involving the use of a
firearm. And for that reason, I’ll go ahead and stick with that same sentence.”
The trial court denied appellant’s request to strike the use of a firearm
enhancement and resentenced appellant to a total aggregate term of 12 years that included
a two-year term for the robbery charge, plus an additional 10 years for the enhancement
pursuant to section 12022.53, subdivision (b), plus 10 years for the enhancement pursuant
to section 12022.53, subdivisions (e) and (b) (the gang firearm enhancement), which the
court stayed pursuant to rule 4.447 of the California Rules of Court. The court also
ordered appellant to pay victim restitution (§ 1202.4, subd. (f)), a $300 restitution fine
(§ 1202.4, subd. (b)), a $300 suspended revocation restitution fine (§ 1202.45), $160 in
court operations assessments (§ 1465.8), and $120 in criminal conviction assessments
(Gov. Code, § 70373).
Appellant filed a timely notice of appeal on November 12, 2025.
Having undertaken an examination of the entire record, we find no evidence of
ineffective assistance of counsel or any other arguable error that would result in a
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disposition more favorable to appellant. However, we do find error in the court’s failure
to dismiss the gang firearm enhancement (§ 12022.53, subd. (e).) (See People v. Lopez
(2021) 73 Cal.App.5th 327, 347–348, disapproved of on other grounds in People v. Clark
(2024) 15 Cal.5th 743, 764, fn. 8 [§ 12022.53, subd. (e) firearm enhancement depended
on jury finding a violation of § 186.22, subd. (b), vacating that finding in light of Assem.
Bill 333 required vacating § 12022.53, subd. (e) enhancement].)
Section 12022.53 provides for sentence enhancements for the use of firearms in
the commission of an enumerated felony. The statute first provides for escalating
punishments depending on how the firearm is used. The least severe penalty is set forth
in section 12022.53, subdivision (b), which provides for a consecutive 10-year term for a
defendant who “personally uses” a firearm in a felony. While subdivisions (b) through
(d) provide punishment for offenders who personally use a firearm during the
commission of their crimes, the penalties may also be imposed on any person who is a
principal in the offense under certain gang-related circumstances: First, the person who
is a principal must be “convicted of a felony committed for the benefit of, at the direction
of, or in association with any criminal street gang, with the specific intent to promote,
further, or assist in criminal conduct by gang members” as set forth in section 186.22,
subdivision (b). (§ 12022.53, subd. (e)(1)(A).) Second, “[a]ny principal in the offense”
must have “committed any act specified in subdivision (b), (c), or (d),” that is, any
principal involved in the offense must have personally used a firearm in the escalating
use categories provided in section 12022.53, subdivisions (b) through (d). (§ 12022.53,
subd. (e)(1)(B).)
Here, with respect to the robbery charge, the jury found true the allegations that a
principal in the offense was convicted of a felony committed for the benefit of a criminal
street gang under section 186.22, subdivision (b) and personally and intentionally used a
firearm within the meaning of section 12022.53, subdivisions (e)(1) and (b). Because this
enhancement depends on a finding that the principal was “convicted of a felony
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committed for the benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in criminal conduct by gang
members” as set forth in section 186.22, subdivision (b) (§ 12022.53, subd. (e)(1)(A)),
we previously ordered the findings on the gang enhancements vacated and remanded the
matter to the trial court in light of the changes to section 186.22 made by Assembly
Bill 333. However, the court failed to vacate the true findings and dismiss the
section 12022.53, subdivision (e) enhancement when the prosecutor elected not to retry
the gang enhancements. Given the prosecutor’s election not to retry the gang
enhancements, the enhancement pursuant to section 12022.53, subdivision (e) must now
also be vacated and dismissed. We shall order the trial court to dismiss the
section 12022.53, subdivision (e) enhancement and that the clerk prepare an amended
abstract of judgment removing only the section 12022.53, subdivision (e) enhancement.
We note, however, that the jury separately found true the allegation under
section 12022.53, subdivision (b) that appellant personally used a firearm. Accordingly,
appellant was sentenced to a consecutive 10-year term pursuant to section 12022.53,
subdivision (b) for personally using a firearm. Although we vacate the findings under
section 12022.53, subdivision (e), those findings under section 12022.53, subdivision (b),
which carry the same penalty, remain intact.
DISPOSITION
The firearm enhancement findings under section 12022.53, subdivision (e), are
vacated in light of Assembly Bill 333. The trial court shall order the section 12022.53,
subdivision (e) enhancement dismissed and amend the November 13, 2025 abstract of
judgment to remove reference to the stayed section 12022.53 enhancement (described
there as “PC 12022.53.(B)(E)(1)”) and shall cause the amended abstract of judgment to
be forwarded to the appropriate authorities. In all other respects, appellant’s judgment is
affirmed.
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