Metropolitan News-Enterprise


Tuesday, October 11, 2022


Page 1


Court Orders Second Resentencing of Husband-Killer

Judge Who, on First Remand, Declined to Substitute 10-Year Enhancement for 25-Year Enhancement Is Now Given Opportunity to Substitute 10-Year or 20-Year Enhancement Under Different Paragraphs of Statute


By a MetNews Staff Writer


A woman who fatally shot her husband in the master bedroom of their home while their three children were viewing cartoons on television downstairs and was sentenced to 40 years to life in prison following her conviction by a jury of second-degree murder will have a second chance to try to persuade a judge to reduce the penalty, under a decision Friday by Div. One of the Fourth District Court of Appeal.

Julie Harper, now incarcerated at the California Institution for Women in Chino, committed the killing of her spouse, high school math teacher Jason Harper, on Aug. 7, 2012. She was sentenced to 15 years to life based on the murder conviction and a 25-years-to-life firearm enhancement was tacked onto the sentence pursuant to Penal Code §12022.53(d).

The judge, on a previous remand, declined to strike that enhancement and either spare Harper from any enhancement or to substitute a 10-year enhancement under a different paragraph of the sentence-boost statute, declaring that it would not be in the interests of justice to lessen her punishment. A judge—presumably though not necessarily the same one—will now be asked to decide if a 10-year or 20-year enhancement, under other paragraphs of the statute, should be applied.

The enhancement has been the subject of three unpublished Court of Appeal opinions, all authored by Justice Terry B. O’Rourke.






First Opinion

The first opinion came on Jan. 5, 2018. After oral argument, Senate Bill 620 was passed which vested discretion in trial courts under Penal Code §1385 to strike firearm enhancements and further briefing on the effect of the legislation was permitted.

O’Rourke’s opinion rejects challenges to the conviction, but orders a remand for resentencing, rejecting the contention of the Office of Attorney General that comments by the sentencing judge, San Diego Superior Court Judge Blaine K. Bowman made clear that if he had possessed discretion to lower the sentence, he would not have exercised it.

Bowman, on remand, on Oct. 24, 2018, proved that speculation correct. His reasons for opting not to strike the enhancement appear on Page 3.

Second Decision

On Feb. 26, 2020, Div. One again considered the enhancement, rejecting Harper’s contention that there must be a remand under the authority of the April 11, 2019 opinion of the First District Court of Appeal’s decision in People v. Morrison establishing that a judge may strike a charged firearm enhancement and substitute “a lesser firearm enhancement.”

O’Rourke declared that “the facts presented here do not require reversal under Morrison’s reasoning.”

In Morrison, the prosecution charged only an enhancement under §12022.53(d) which applies where the defendant “personally and intentionally discharges a firearm and proximately causes great bodily injury…or death.” In Harper’s case, however, the prosecution also charged an enhancement under §12022.53(a) which carries a 10-year-to-life penalty.

The jury found both allegations to be true and Bowman stayed the sentence on the lesser enhancement.

In remanding on Jan. 5, 2018, Div. One instructed the trial court “to consider whether the enhancements under section 12022.5, subdivision (a) and 12022.53, subdivision (d) should be stricken under section 1385.”

O’Rourke said that unlike the situation in Morrison, Bowman, in considering whether to strike the enhancement under §12022.53(d), “was aware of the scope” of his discretion “and properly exercised that discretion to impose the same sentence it imposed at the initial sentencing hearing.”

Superior Court Review

Harper sought review in the California Supreme Court, which was granted. It remanded the case to the Court of Appeal for a decision in light of the state high court’s opinion issued on Jan. 20 in People v. Tirado.

There, Justice Carol Corrigan wrote:

“We conclude the statutory framework permits a court to strike the section 12022.53(d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead.” In so proclaiming, the Supreme Court rejected Court of Appeal decisions differing with the conclusion in Morrison. “Morrison correctly described the scope of a trial court’s sentencing discretion under section 12022.53,” Corrigan said.

In his opinion filed Friday, O’Rourke rejected reasoning he set forth in Harper II. In that 2020 decision, he found unpersuasive Harper’s contention that even if Bowman understood that he could strike the enhancement under §12022.53(d) carrying a 25-year-to-life penalty, and apply the enhancement under §12022.53(d) entailing a 10-year-to-life added sentence, he did not appreciate a further alternative.

He also had the option, under Morrison of substituting a 10-year enhancement under subd. (b) based on personally using a firearm or a 20-year enhancement under subd. (c) based on personally and intentionally discharging a firearm in connection with certain offenses including murder.

O’Rourke said in 2020:

“[E]ven if the trial court was unaware of its discretion to strike the most severe firearm enhancement and impose one of the lesser uncharged sentence enhancements under section 12022.53, subdivision (b) or (c), there is no prejudice to Harper. On remand, the court was presented with the choice to lessen her sentence by striking the 25-year enhancement under section 12022.53, subdivision (d) and reinstating the enhancement under section 12022.5 it previously stayed, or by striking both firearm enhancements. After considering the nature and circumstances of the murder, the court determined the 25-year enhancement was warranted and found that ‘the interest of justice clearly would not be furthered by striking the gun allegation and reducing the sentence.’ This record shows that even if the court was not aware of any additional discretion to apply the uncharged enhancements based on the decision in Morrison (discretion we merely assume for purposes of argument), there is no prejudice to Harper.”

In Friday’s decision, the jurist expressed this view:

“The trial court did not have the benefit of Tirado’s clarification of the law and its holding that lower courts have the discretion to impose a lesser, uncharged section 12022.53, subdivision (b) or (c) enhancement where the prosecution has charged the greater enhancement and the facts supporting imposition of the lesser enhancement have been alleged in the accusatory pleading and found true….Nor has it considered cases making other clarifications since Tirado….We elect to permit the trial court in the first instance to consider these clarifications and resentence Harper so as to ensure it understands and exercises the full scope of its discretionary authority with respect to the firearm enhancements. Under these circumstances, a remand for resentencing will allow the court to exercise its informed discretion. We express no view on how the court should exercise its discretion.”

The case is People v. Harper, D074943.



Judge States Reasons for Not Striking Enhancement


On Oct. 24, 2018, San Diego Superior Court Judge Blaine K. Bowman set forth the following reasons for not striking a firearm enhancement in the case of Julie E. Harper.

Now at sentencing the court did not have discretion to strike the gun allegation and it was imposed. The court does have discretion at this point. So the only issue that the court has to decide now is whether the interest of justice would be served by striking the gun allegation pursuant to [section] 12022.53[, subdivision] (d). The court can consider all the facts of the case, the impact to the victim’s family, all the circumstances that are present in this case. This court, obviously, is very familiar with the facts of the case

....[T]he court believes that Jason Harper would still be alive today without the introduction of this gun into this case. Could you have stabbed him to death? Could you have beat him to death with a baseball [bat], as your defense attorney suggests? Yes. But that’s why the legislature imposes such harsh penalties when someone uses a gun, because it’s very impersonal. All it takes is the pulling of a trigger. It does not take repeated stabbing. It does not take repeated blows with a baseball bat to effectuate the killing. It is very impersonal, very easy. But most importantly, that decision that you made that day was final and it was irreversible. Once you pulled that trigger and ended Jason Harper’s life there was nothing anybody could do to bring him back and that is what led to the devastation and broken hearts that resulted from your killing your husband.

So the question is, would the interest of justice be furthered by striking the use of the gun allegation? I’ve given this a great deal of thought. I’ve considered the length of the sentence, the 25 years to life imposed for it.

The court did not have discretion at the time of sentencing but the court does now.

The court finds that the interest of justice clearly would not be furthered by striking the gun allegation and reducing the sentence.

Therefore, the sentence of 40 years to life will remain. The defense motion to strike the allegation and reduce the sentence is denied.



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