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Trial court has discretion to impose a lesser uncharged firearm enhancement

People v. Johnson (Cal. Ct. App., Oct. 4, 2022, No. C094491) 2022 WL 4905411, at *1–2

Summary: The trial court has broad discretion to impose a lesser uncharged firearm enhancement provided for by Penal Code section 12022.5, subdivision (a), when it exercises its discretion to strike a Penal Code section 12022.53, subdivision (b) firearm enhancement of conviction.  The Court of Appeal remanded  the case for a full resentencing hearing, where the trial court may consider exercise of its discretion and any other new laws related to sentencing that may apply.

Discretion to strike firearm enhancements under Senate Bill 620

On January 1, 2018, Senate Bill No. 620 went into effect and amended Penal Code sections 12022.5 and 12022.53, granting trial courts discretion pursuant to section 1385 to strike or dismiss certain firearm enhancements.

The Supreme Court held in People v. Tirado (2022) 12 Cal.5th 688, 289. (Tirado) that although the amendments  spoke only in terms of striking or dismissing a firearm enhancement, trial courts also have discretion under Senate Bill No. 620 to impose uncharged lesser section 12022.53 enhancements after striking or dismissing the greater.

Here, the Court of Appeal noted the apparent conflict with other unamended statutory provisions that require imposition of the harshest available punishment (see § 12022.53, subd. (f) (12022.53(f)) [requiring the court to impose “the enhancement that provides the longest term of imprisonment”]) and limit sentencing to enhancements contained within the same statute unless the other statute provided for harsher consequences (§ 12022.53, subd. (j) (12022.53(j)) [requiring the court to impose punishment for the § 12022.53 enhancement “rather than imposing punishment authorized under any other” statute unless the other enhancement provides for a more severe penalty or a longer prison term]).

Johnson’s request for resentencing to strike one or more of the section 12022.53(b) firearm enhancements

In 2002, Johnson pleaded no contest in two cases to various counts in connection with multiple armed robberies and admitted seven section 12022.53, subdivision (b) (12022.53(b)) enhancements. He was sentenced to 46 years four months in prison  and resentenced approximately 15 years later to 46 years in prison.

Johnson appealed from his second sentencing hearing and Senate Bill No. 620 had been enacted. The Court of Appeal remanded the case for discretionary resentencing pursuant to the new amendments, with directions to obtain and consider a supplemental probation report.

 At the resentencing hearing on remand the trial court acknowledged it had discretion–pursuant to the amendments to section 12022.53 resulting from the passage of Senate Bill No. 620–to strike one or more of defendant’s seven section 12022.53(b) firearm enhancements. (§ 12022.53(h).) The trial declined to strike any of the enhancements. The court was not asked to consider imposing lesser firearm enhancements in lieu of the section 12022.53(b) enhancements of conviction.

Johnston appealed and relying on Tirado, argued that his case we should again be remanded for resentencing to allow the trial court to exercise informed discretion on whether to strike one or more of the section 12022.53(b) firearm enhancements with the option to then substitute uncharged lesser enhancements for the stricken enhancements of conviction. The Court of appeal agreed that remand is warranted.

Section 12022.53

Section 12022.53 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[, subd.] (c) mandates the imposition of a 20-year enhancement for personal and intentional discharge of a firearm; and section 12022.53[, subd.] (d) provides for a 25 year-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death to a person other than an accomplice.

Section 12022.53(h), effective after the passage of Senate Bill No. 620, 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.” (§ 12022.53(h).) Both Tirado and People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) interpreted subdivision (h) to establish that the trial court also had discretion to impose an uncharged lesser enhancement from that same statute.

Section 12022.5

Section 12022.5, subdivision (a) (§ 12022.5(a)) provides  that: “[A]ny person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years.” The operative version of section 12022.5(c), effective after the passage of Senate Bill No. 620, provides that “[t]he 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 12022.5(a) provides a triad of three, four, or 10 years for personal use of a firearm in the commission of any felony, whereas section 12022.53(b) mandates the imposition of a 10-year enhancement for personal use of a firearm in the commission of certain specified felonies. Section 12022.5(a) punishes the same conduct as does section 12022.53(b)–personal use of a firearm in the commission of a felony–but provides for more nuanced punishment, permitting a triad of considerations for sentencing. Any violation of 12022.53(b) is necessarily a violation of 12022.5(a).

Section 1385

Senate Bill No. 620 amended both sections 12022.53 and 12022.5 to provide that pursuant to the trial court’s authority under section 1385, the trial court could, in the interest of justice, strike or dismiss a firearm enhancement otherwise required to be imposed by those two sections.

Once the trial court strikes any (and all) existing section 12022.53 enhancement(s), section 12022.5 enhancement may then be imposed if those enhancements’ supporting facts were alleged and found true. The

addition of 12022.53(h) by Senate Bill No. 620 gave sentencing courts the discretion to replace (in addition to strike) a section 12022.53(b) enhancement, as long as the factual basis for the lesser was pleaded and either admitted or found true.

Senate Bill No. 62 reflected the Legislature’s intent to expand the courts’ discretion at sentencing and give courts flexibility “to impose lighter sentences in appropriate circumstances,” while retaining “the core characteristics of the sentencing scheme” by keeping the “harshest applicable sentence” as the default punishment.

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