People v. Hoang
H046550
| Cal. Ct. App. | Jul 22, 2021Background:
- On November 14, 2013, Hoang approached a victim in a car, produced a gun, and fatally shot the victim; Hoang claimed self-defense while prosecution argued a robbery gone wrong.
- Hoang was charged with murder and second-degree robbery; the information alleged a Penal Code § 12022.53(d) (25‑years‑to‑life) firearm enhancement as to each count.
- A jury convicted Hoang of second‑degree murder and found the § 12022.53(d) enhancement true; the robbery count ended in mistrial. The trial court sentenced Hoang to 15‑to‑life plus a consecutive 25‑to‑life enhancement (total 40‑to‑life).
- While the appeal was pending, Senate Bill No. 620 amended § 12022.53(h) to allow courts, in the interest of justice under § 1385, to “strike or dismiss” § 12022.53 enhancements; this court remanded so the trial court could exercise that discretion.
- On remand defense requested either striking the enhancement or, alternatively, imposition of a lesser § 12022.53 enhancement (10‑ or 20‑year tiers). The trial court declined to consider substituting a lesser uncharged enhancement and refused to strike the enhancement.
- The Court of Appeal affirmed, holding § 12022.53(h) permits only striking or dismissing an enhancement; it does not authorize imposing a lesser firearm enhancement that was not charged and found.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 12022.53(h) authorizes a trial court to substitute a lesser firearm enhancement not alleged or found, or only to strike/dismiss an enhancement | The People: § 12022.53(h) allows only striking or dismissing an enhancement; courts may not impose an uncharged lesser enhancement | Hoang: Under Morrison the court may, in the interests of justice, impose a lesser § 12022.53 enhancement instead of striking the greater one | The court held § 12022.53(h) authorizes only striking/dismissing the enhancement; substituting a lesser, uncharged enhancement is not permitted; judgment affirmed |
Key Cases Cited
- People v. Gonzalez, 43 Cal.4th 1118 (Cal. 2008) (describes § 12022.53 enhancement tiers and requirement that enhancement facts be alleged and found)
- People v. Morrison, 34 Cal.App.5th 217 (Cal. Ct. App. 2019) (held a trial court could impose a lesser enhancement in lieu of striking a greater one)
- People v. Tirado, 38 Cal.App.5th 637 (Cal. Ct. App. 2019) (concluded § 12022.53(h) does not authorize substituting a lesser enhancement)
- People v. Yanez, 44 Cal.App.5th 452 (Cal. Ct. App. 2020) (same)
- People v. Valles, 49 Cal.App.5th 156 (Cal. Ct. App. 2020) (same)
- People v. Garcia, 46 Cal.App.5th 786 (Cal. Ct. App. 2020) (same)
- People v. Delavega, 59 Cal.App.5th 1074 (Cal. Ct. App. 2021) (reviewed conflicting authority and rejected Morrison; trial courts may not impose uncharged lesser enhancements)