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Courts may strike firearm enhancements

People v. Tirado (Cal., Jan. 20, 2022, No. S257658) 2022 WL 176141, at *1

 Summary: Penal Code section 12022.53 authorizes enhancements for certain felonies involving firearms.Section 12022.53, subdivision (h) (section 12022.53(h)) authorizes courts to strike certain enhancements in the interests of justice under the authority of section 1385.

Issue: when the prosecution has alleged, and the jury has found true, the facts supporting an enhancement under section 12022.53, subdivision (d) (section 12022.53(d)). what may the court  do if it decides to strike that enhancement. May the court impose a lesser uncharged enhancement under either section 12022.53, subdivision (b) (section 12022.53(b)) or section 12022.53, subdivision (c) (section 12022.53(c))? Or is the court limited to imposing the section 12022.53(d) enhancement or striking it? The California Supreme Court held that a court may strike the section 12022.53(d) enhancement found true by the jury and impose a lesser uncharged statutory enhancement.

Facts: Tirado was convicted of second degree robbery, assault with a semiautomatic firearm, and driving under the influence. It also found true the firearm use enhancements on the robbery and assault counts (§§ 12022.53(d), 12022.5, subd. (a)), as well as the bodily injury enhancement on the assault count (§ 12022.7, subd. (a)).

Tirado moved under section 12022.53(h) to strike the firearm use enhancement under section 12022.53(d). He argued the interests of justice would not be served by imposing the 25 years-to-life sentence required by section 12022.53(d) and even if the court struck the section 12022.53(d) enhancement, it could still impose a sentence of ten years or longer based on the remaining charges and enhancements. The court denied his motion.

Tirado was sentenced  to the midterm of three years for robbery with a 25-years-to-life enhancement under section 12022.53(d). The court imposed concurrent sentences of six years for the assault with a four-year enhancement for personal firearm use and a three-year enhancement for great bodily injury, as well as 90 days for driving under the influence.

Tirado appealed, asserting the trial court abused its discretion because it was unaware of its full set of options under section 12022.53(h). Tirado stated that the  court believed it had only two choices: (1) impose the section 12022.53(d) enhancement; or (2) strike it. Tirado maintained that the court could  strike the section 12022.53(d) enhancement and impose a lesser enhancement under either section 12022.53(b) or (c).

The Court of Appeal affirmed, stating that the trial court could either strike the section 12022.53(d) enhancement found true by the jury or it could impose it. It could not strike the enhancement and substitute a different unalleged enhancement. The Court of Appeal noted that its decision conflicted with People v. Morrison (2019) 34 Cal.App.5th 217, 245 Cal.Rptr.3d 849 (Morrison). The Supreme Court granted review to resolve the conflict.

Sentencing court must exercise informed discretion

When being sentenced, a defendant is entitled to decisions made by a court exercising informed discretion. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391, 171 Cal.Rptr.3d 421, 324 P.3d 245.) A court acting while unaware of the scope of its discretion is understood to have abused it. (People v. Carmony (2004) 33 Cal.4th 367, 378, 14 Cal.Rptr.3d 880, 92 P.3d 369.) Whether the trial court here abused its discretion depends on the scope of that discretion under section 12022.53. This is a question of statutory interpretation de novo.

Enhancements under “Use a Gun and You’re Done” law

 Section 12022.53 was enacted in 1997 as part of the state’s “Use a Gun and You’re Done” law. The statute sets out “sentence enhancements for personal use or discharge of a firearm in the commission” of specified felonies. Section 12022.53, subdivision (a) lists the felonies to which the section applies. Section 12022.53(b) mandates the imposition of a 10-year enhancement for personal use of a firearm in the commission of one of those felonies; section 12022.53(c) mandates the imposition of a 20-year enhancement for personal and intentional discharge of a firearm; and section 12022.53(d) provides for a 25 years-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death to a person other than an accomplice. The legislative intent behind section 12022.53 is to impose “ ‘substantially longer prison sentences … on felons who use firearms in the commission of their crimes.’ ”

The court’s power to impose a section 12022.53 enhancement is limited: “For the penalties in this section to apply, 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.” (§ 12022.53, subd. (j) (section 12022.53(j)).) If a section 12022.53 enhancement is admitted or found true, the court must “impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another enhancement provides for a greater penalty or a longer term of imprisonment.” (§ 12022.53(j).) The court may impose “[o]nly one additional term of imprisonment under this section … per person for each crime.” (§ 12022.53, subd. (f) (section 12022.53(f)).) If “more than one enhancement per person is found true under this section,” the court must impose the “enhancement that provides the longest term of imprisonment.” (Ibid.)

Before January 1, 2018, section 12022.53 prohibited courts from striking its enhancements. If a section 12022.53 enhancement was alleged and found true, its imposition was mandatory. (Palacios, supra, 41 Cal.4th at p. 726, 62 Cal.Rptr.3d 145, 161 P.3d 519; see also People v. Oates (2004) 32 Cal.4th 1048, 1056, 12 Cal.Rptr.3d 325, 88 P.3d 56.) In 2017, the Legislature enacted Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620), amending section 12022.53(h) to remove this prohibition. (Stats. 2017, ch. 682, § 2.) Section 12022.53(h) now provides that a “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.”

Section 1385 provides that a court may, “in furtherance of justice, order an action to be dismissed.” (Id., subd. (a).) Though section 1385 literally authorizes the dismissal of “an action,” it has been construed to permit the dismissal of parts of an action (People v. Burke (1956) 47 Cal.2d 45, 51, 301 P.2d 241), including a weapon or firearm use enhancement (see People v. Price (1984) 151 Cal.App.3d 803, 818–819)  “Section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent.” (People v. Williams (1981) 30 Cal.3d 470, 482, 179 Cal.Rptr. 443, 637 P.2d 1029.)

May a court  strike the section 12022.53(d) enhancement and, in its place, impose a lesser enhancement under section 12022.53(b) or section 12022.53(c), even if the lesser enhancements were not specifically charged in the information or found true by the jury?

 Courts may impose uncharged enhancements and that the power to do so is not conditioned on the charged and adjudicated enhancement being legally or factually inapplicable. The next question is whether section 12022.53 bars a trial court from imposing an enhancement under section 12022.53(b) or (c) when those enhancements are not specifically listed in the accusatory pleading, but the facts giving rise to the enhancement are alleged and found true. The Legislature could draft a statute that restricts a court’s discretion in this manner. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 516, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero).) Section 12022.53 does not contain such a limitation.

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