People v. Fialho, 229 Cal. App. 4th 1389

Defendant Scott Fialho was convicted of voluntary manslaughter, attempted voluntary manslaughter, and carrying a concealed dirk or dagger; jury found true firearm enhancements under former § 12022.53(d) but § 12022.53 did not apply to manslaughter.
Trial court imposed personal-firearm-use enhancements under former § 12022.5(a) for counts 1 and 2 despite those enhancements not being charged for the offenses of conviction.
Shooting occurred December 5, 2007 in San Jose; two victims were struck, with Vírelas dying; witness testimony described defendant aiming and shooting at Vírelas and Jaime.
Defendant, a Norteño gang member, claimed self-defense after perceiving the victims as having mugged him; evidence included gang-related items found at his residence.
Information alleged firearm enhancements for counts 1 and 2 under § 12022.53(d) and related gang-benefit allegations; jury found true the § 12022.53(d) enhancements.
On appeal, defendant challenged the validity of the 12022.53(d) findings and the firearm enhancements imposed under 12022.5(a); the court affirmed the judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 12022.53 findings were improper for voluntary/attempted voluntary manslaughter	Fialho	Fialho	Findings improper; 12022.53(d) does not apply to manslaughter offenses
Whether the 12022.5(a) enhancements could be imposed when not charged or found true	People argued enhancements could substitute for charged ones under case law	Fialho argued uncharged enhancements could not be imposed	Court approved substitution; enhancements could be imposed as lesser included or applicable under Strickland/Majors framework
Whether section 1170.1(e) requires pleading all enhancements in accusatory pleading	People contended no strict pleading of lesser included enhancements required	Fialho argued required pleading of enhancements, including lesser included ones	Section 1170.1(e) allows uncharged lesser included enhancements; error deemed harmless here
Whether the error in failing to plead earlier enhancements was harmless	People	Fialho	Harmless error under Watson; proper notice and evidence supported enhancements if pleaded

People v. Strickland, 11 Cal.3d 946 (Cal. 1974) (allowed uncharged enhancements where applicable to conviction)
People v. Majors, 18 Cal.4th 385 (Cal. 1998) (approved substitution of charged enhancements with lesser included enhancements)
People v. Allen, 165 Cal.App.3d 616 (Cal. App. 1985) (reduced unsupported firearm use to arming enhancement)
People v. Lucas, 55 Cal.App.4th 721 (Cal. App. 1997) (upheld arming enhancement when greater evidence supported lesser)
People v. Dixon, 153 Cal.App.4th 985 (Cal. App. 2007) (upheld substitution of enhancements under 12022 where applicable)
People v. Jackson, 37 Cal.3d 826 (Cal. 1985) (pleading and proof requirements for enhancements; notice to defendant)
People v. Watson, 46 Cal.2d 818 (Cal. 1956) (harmless error standard for sentencing law violations)
People v. Banks, 59 Cal.4th 1113 (Cal. 2014) (lesser included offenses and due process considerations; caution on pleading)
People v. Scheid, 16 Cal.4th 1 (Cal. 1997) (statutory interpretation central to enhancement pleading)