38 Cal.App.5th 637
Cal. Ct. App.2019Background
- In April 2016 defendant Jose Tirado and an accomplice robbed a convenience store; when a customer (Brian) intervened the accomplice was tackled and Tirado shot Brian in the lower back, causing great bodily injury.
- The People charged multiple counts; jury convicted Tirado of second-degree robbery (count 2), assault with a semiautomatic firearm (count 6), and DUI (count 5). The jury found true a § 12022.53, subd. (d) enhancement (personal and intentional discharge causing great bodily injury) as to the robbery.
- The People alleged only the § 12022.53(d) enhancement (not the lesser subdivision (b) or (c) enhancements) for the robbery count.
- Defendant moved under Penal Code § 1385 to strike/dismiss the § 12022.53(d) enhancement; the trial court denied the motion and sentenced defendant to 3 years for robbery plus 25-years-to-life for the § 12022.53(d) enhancement (other counts concurrent).
- On appeal defendant argued the trial court abused its discretion by not substituting a lesser § 12022.53 enhancement (b or c) for the charged (d) enhancement pursuant to §§ 1385 and 12022.53(h).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court may, under § 1385 and § 12022.53(h), substitute a lesser § 12022.53 enhancement for a charged § 12022.53(d) enhancement | The prosecution argued the court lacked statutory authority to substitute one enhancement for another when the People charged only § 12022.53(d) | Tirado argued the court had discretion to strike or partially reduce/modify the enhancement and impose a lesser § 12022.53 enhancement under § 1385 and amended § 12022.53(h) | The court held the trial court could strike or dismiss the charged enhancement but had no authority to substitute a different enhancement not charged by the People; judgment affirmed |
Key Cases Cited
- People v. Carmony, 33 Cal.4th 367 (abuse of discretion standard; trial court must be aware of its discretion under § 1385)
- People v. Romero (Superior Court), 13 Cal.4th 497 (historical discussion of § 1385 and dismissals in furtherance of justice)
- People v. Thomas, 4 Cal.4th 206 (power to dismiss an ‘action’ under § 1385 includes striking an enhancement)
- People v. Birks, 19 Cal.4th 108 (prosecutorial charging discretion and separation of powers)
- People v. Fialho, 229 Cal.App.4th 1389 (court may impose a lesser uncharged enhancement when charged enhancement is legally inapplicable)