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California Supreme Court Announces Uncharged Lesser Firearm Enhancement May Be Substituted Under § 12022.53

by Mark Wilson

The Supreme Court of California held that sentencing courts have the authority to strike a firearm enhancement and substitute a lesser uncharged statutory enhancement.

California Penal Code § 12022.53, the state’s  “Use a Gun & You’re Done”  law, establishes a tiered system of sentencing enhancements for certain firearm offenses. Subsection (b) mandates a 10-year enhancement for personal use of a firearm, subsection (c) mandates a 20-year enhancement for personal and intentional discharge of a firearm, and subsection (d) mandates a 25 years-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death. Under subsection (j), the facts required to support an enhancement under subsections (b-d) must be alleged in the charging instrument and found to be true by the trier of fact. If more than one enhancement is found to be true, the court must impose the one mandating the longest prison term. § 12022.53(f).

Before January 1, 2018, courts were prohibited from striking enhancements, but the 2017 legislature amended subsection (h) to remove that prohibition. The legislation makes clear that courts may dismiss or strike an enhancement and impose no punishment under section 12022.53, in the interest of justice. It was not clear, however, if the court could strike an enhancement under one subsection and impose a lesser enhancement under a different subsection when the lesser enhancement was not specifically charged or found true by the jury.

Brian Phillips was in a California convenience store when Jose Guadalupe Tirado and Anthony Aldaco entered and attempted to steal a case of beer. Phillips intervened and wrestled Aldaco to the floor. Tirado then shot Phillips in the back with a semiautomatic pistol. Tirado and Aldaco fled with the beer but were soon apprehended.

Phillips survived, but the bullet shattered his hip. He needed surgery and a walker for a month. He continued to suffer pain and neuropathy in his feet.

Tirado was charged with attempted murder, second degree robbery, assault with a semiautomatic firearm, and driving under the influence. Subsection (d) firearm enhancements were added to the attempted murder and robbery counts, alleging that Tirado discharged a firearm, causing great bodily injury.

A jury convicted Tirado of robbery, assault with a semiautomatic firearm, and driving under the influence. The jury found true the firearm use enhancements on the robbery and assault convictions and the bodily injury enhancement on the assault conviction.

Before sentencing, Tirado moved in the interest of justice under subsection (h) to strike the subsection (d) firearm enhancement and substitute a lesser enhancement under subsection (b), imposing a 10-year sentence rather than a 25 years-to-life enhancement. The court denied the motion.

The court then sentenced Tirado to three years for robbery with a 25 years-to-life enhancement under subsection (d). It also imposed a concurrent six-year assault sentence, with a four-year personal firearm use enhancement and a three-year great bodily injury enhancement on that conviction. It also imposed a 90-day concurrent driving under the influence sentence.

Tirado appealed, arguing that the sentencing court incorrectly concluded that it lacked authority to strike the subsection (d) enhancement and impose a lesser enhancement under subsection (b) on the robbery conviction. The Court of Appeal affirmed, concluding that the sentencing court could not strike an enhancement and substitute a different, uncharged enhancement. It acknowledged, however, that its decision conflicts with People v. Morrison, 34 Cal. App. 5th 217 (2019). People v. Tirado, 38 Cal. App. 5th 637 (2019).

The California Supreme Court granted review to resolve the conflict and concluded that “Morrison correctly described the scope of the trial court’s discretion under section 12022.53.”

“It is worth noting,” the Court explained, “that a court is not categorically prohibited from imposing a lesser included uncharged enhancement so long as the prosecution has charged the greater enhancement and the facts supporting imposition of the lesser enhancement have been alleged and found true. The case law cited in Morrison and the Court of Appeals below makes this clear.”

The Court concluded that “read as a whole,” § 12022.53 does not bar a trial court from imposing an enhancement under subsections (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.”

Thus, the Court ruled that when a subsection (d) enhancement has been properly pled and proved but the court determines under subsection (h) that the enhancement should be stricken or dismissed in the interests of justice, a subsection (b) or (c) enhancement may be substituted under subsection (j).

Accordingly, the Court reversed the judgment of the Court of Appeal. See: People v. Tirado, 502 P.3d 941 (Cal. 2022). 

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People v. Tirado



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