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Criminal Defense Attorneys

Does SB 620 Allow Judge to Lower Gun Enhancement?

On November 14, 2013, the victim went to a parking lot in Santa Clara County to purchase cocaine from another individual.  The victim got into the seller’s car. 

Defendant Han Quoc Hoang approached the victim, passed his hand in and then out of the driver’s side window and pulled out a gun.  He then moved away from the car and fatally shot the victim.

Hoang was charged with murder (Penal Code § 187) and second degree robbery (Penal Code § 211-215(c)).  As to each count, it was alleged that Hoang personally discharged a firearm, causing the victim’s death (Penal Code § 12022.53(d)).  The prosecution’s theory was that Hoang intended to rob the victim and shot him when he resisted. 

Hoang testified at trial that he shot the victim in self-defense.

A Santa Clara County Superior Court jury convicted Hoang of second degree murder and found true the firearm enhancement allegation, but could not reach a verdict on the robbery count and the judge declared a mistrial on that count.  The judge then sentenced Hoang to an indeterminate term of 40 years to life, consisting of 15 years to life for the murder and 25 years to life for the Penal Code § 12022.53(d) firearm enhancement.

Hoang appealed the verdict and sentence on several grounds.  While the appeal was pending, effective January 1, 2018, the Legislature enacted Senate Bill 620 (SB 620), which amended section 12022.53(h) to state: “The court may, in the interests 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.” 

The Sixth Appellate District then reversed the judgement and “remanded for the sole purpose of allowing the trial court to exercise its discretion under section 12022.53(h) by deciding whether to strike defendant’s 12022.53 firearm enhancement.

After a hearing, the trial court declined to exercise its discretion to strike the firearm enhancement, finding that to do so would not be in the interest of justice.  Hoang, through his counsel, requested that the judge consider imposing a ten- or twenty-year enhancement instead.  The judge responded by stating that the Sixth Appellate District instructed him only to consider striking or dismissing the 25-to-life enhancement, not to reduce the enhancement.

Hoang appealed the sentence to the Sixth Appellate District Court in San Jose, arguing that the judge abused his discretion under Penal Code § 12022.53(h) by refusing to impose a lesser firearm enhancement, as provided by People v. Morrison (2019) 34 Cal. App. 5th 217.

Morrison, the Sixth District Appellate Court, explained was a First Appellate District case.  It held that Senate Bill 620, in amending 12022.53(h), not only gave the judge discretion to strike or vacate the enhancement, but to also impose a lesser enhancement.  Morrison, supra, at 222.

Following Morrison, multiple other courts have disagreed with Morrison.  Even the First District, in People v. Delavega (2021) 59 Cal. App. 5th 1074, examined the cases addressing the issue and concluded that Morrison was wrongly decided: “[A] trial court does not have authority, under 12022.53 [subdivision (h)] or otherwise, to strike a greater firearm enhancement that is legally and factually sound and impose a lesser one that was neither charged nor found by the jury.”  Id. at 1094.

Therefore, the Sixth Appellate District affirmed the trial court, commenting that a court does not have the discretion to substitute a lesser enhancement that was neither charged nor found true by the jury. 

We bring this summary to the reader’s attention because it suggests that if a lesser enhancement were charged and found true by the jury, as well as a greater enhancement, which could be charged, then this ruling suggests that, in effect, a lesser enhancement could be “substituted” in fact.  However, a court cannot manufacture such an enhancement to substitute for a greater one.

This particular enhancement arises quite frequently, so we hope our readers will take note of this ruling for clarity on this new law.

For more information about SB 620 and the new law on striking a firearm enhancement, please click on the following articles:
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