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If Firearm Enhancement (12022.53) True, Lesser One OK?

In People v. Tirado (2022) 12 Cal. 5th 688, 692, the California Supreme Court held that when a firearm enhancement under Penal Code § 12022.53 has been charged and found true, a sentencing court has discretion to strike the enhancement and impose an uncharged lesser included enhancement.

Is that discretion limited to a lesser enhancement under 12022.53?  Or may a sentencing court also, in its discretion, impose an uncharged lesser included enhancement under 12022.5(a)?

This question arose in the case of People v. Eric Lavell Fuller, Jr. in Riverside County before Judge John Molloy and Judge David A. Gunn.

Victims identified Eric Lavell Fuller as one of the perpetrators involved in the armed robbery of a nail salon, followed by a high-speed pursuit after they fled the scene. 
A jury convicted Fuller of five counts of robbery (one for each victim) and one count of recklessly evading an officer (Penal Code § 211, Vehicle Code § 2800.2).  The jury found true that Fuller personally used a firearm in committing each of the robbery offenses (Penal Code §§ 12022.53(b), 1192.7(c)(8)).  Fuller was seventeen years old when he committed the offenses.

After considering Fuller’s age and various aggravating circumstances, the judge imposed the upper term of five years on count 1, the first robbery offense and then consecutive sentences on all the robbery offenses and declined to strike the firearm enhancements, sentencing Fuller to 32 years and four months in state prison.

On appeal to the Fourth Appellate District, Fuller argued that the trial court erred by failing to consider imposing uncharged lesser included firearm enhancements under Penal Code § 12022.5(a) rather than imposing the charged firearm enhancements under § 12022.53(b).

It merits mention that the Fourth Appellate District, in People v. Moses (July 1, 2021, unpublished), had previously rejected this argument and held that a sentencing court was not authorized to impose an uncharged lesser firearm enhancement.  However, the California Supreme Court has since ruled to the contrary in Tirado, supra, 12 Cal. 5th 688, 692.

The Fourth Appellate Court then considered Penal Code § 12022.5(a), which provides that “any person who personally uses a firearm in the commission of a felony or an attempted felony shall be punished by an additional term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of the offense. 

Penal Code § 12022.53, in contrast, creates “a tiered system of sentencing enhancements for specified felonies involving firearms.”  Tirado, supra, at 692.  Section 12022.53(a) lists out the felonies to which 12022.53 applies.  Section 12022.53(b) mandates the imposition of a ten-year enhancement for personal use of a firearm in the commission of one of the felonies.  Section 12022.53(c) mandates the imposition of a twenty-year enhancement for personal and intentional discharge of a firearm.  Section 12022.53(d) mandates the imposition of a twenty-five year-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death to another other than an accomplice.

Penal Code § 12022.53(h) provided that under Penal Code § 1385, a court may, “in the interest of justice,” “strike or dismiss an enhancement otherwise required to be imposed by this section.”

Tirado then held that “courts are not categorically prohibited from imposing uncharged enhancements and that the power to do so is not conditioned on the charged and adjudicated enhancement being legally and factually inapplicable.”  This was so as long as the facts supporting imposition of the lesser enhancement have been alleged and found true.  Tirado, at 697.

Accordingly, the Fourth Appellate District vacate Fuller’s sentence on count 1, a 211 charge and the matter was remanded for resentencing, suggesting that the facts were alleged and proven true that would similarly support resentencing under the 12022.5(a) enhancement, which is lower unless the upper term of the 12022.5(a) enhancement is imposed.

It merits mention that remanding the matter was also order under Senate Bill 567, which the People conceded was retroactive, for the sentencing court to evaluate if the upper term on count 1 was appropriate under 567.

For more information about Senate Bill 620 and firearm enhancements, please click on the following articles:
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