502 P.3d 941
Cal.2022Background
- Defendant Jose Tirado shot a store patron during a robbery; charged with robbery, assault, and other counts, with firearm-use enhancements under Penal Code § 12022.53(d) (personal, intentional discharge causing great bodily injury).
- A jury found true the § 12022.53(d) enhancements on robbery and assault counts; defendant moved under amended § 12022.53(h) to strike the § 12022.53(d) enhancement in the interest of justice.
- Trial court denied the motion and imposed the § 12022.53(d) 25-years-to-life enhancement; defendant appealed claiming the court misunderstood its options under § 12022.53(h).
- The Court of Appeal affirmed, holding the trial court’s power under § 12022.53(h) was binary (impose the adjudicated enhancement or strike it) and could not substitute an uncharged lesser enhancement; this conflicted with People v. Morrison.
- The Supreme Court granted review and held that when the accusatory pleading alleges facts that support § 12022.53(d) and the trier of fact finds those facts true, the court may strike the § 12022.53(d) enhancement under § 12022.53(h) and instead impose a lesser uncharged enhancement under § 12022.53(b) or (c) if the facts required for those lesser subdivisions were alleged and found true; the Court of Appeal’s judgment was reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court that strikes a jury‑found § 12022.53(d) enhancement may impose a lesser, uncharged § 12022.53(b) or (c) enhancement when the facts supporting the lesser enhancement were alleged and found true | The court’s power under § 12022.53(h) is binary: it can only impose the adjudicated enhancement or strike it; it may not substitute a different enhancement not charged | The court may strike the § 12022.53(d) enhancement and impose a lesser § 12022.53(b) or (c) enhancement because the charging allegations and jury findings established the facts needed for the lesser enhancements | The court may strike a § 12022.53(d) enhancement and impose a lesser uncharged § 12022.53(b) or (c) enhancement if the accusatory pleading alleged and the trier of fact found true the facts required by the lesser subdivision (reversing the Court of Appeal) |
Key Cases Cited
- People v. Strickland, 11 Cal.3d 946 (uncharged lesser enhancement may be imposed when charged enhancement’s findings demonstrate facts necessary for the lesser)
- People v. Fialho, 229 Cal.App.4th 1389 (permitting imposition of an uncharged firearm enhancement when facts were alleged and found true)
- People v. Morrison, 34 Cal.App.5th 217 (held a court may strike § 12022.53(d) and impose a lesser uncharged enhancement)
- People v. Tirado, 38 Cal.App.5th 637 (Court of Appeal decision holding court’s power was binary; reversed)
- People v. Palacios, 41 Cal.4th 720 (overview of § 12022.53 enhancements and their purpose)
- People v. Birks, 19 Cal.4th 108 (charging a greater offense gives notice of lesser included offenses or enhancements)
- People v. Romero, 13 Cal.4th 497 (court’s sentencing discretion and statutory limits)
- People v. Prudencio, 202 Cal. 165 (distinguished; trial court may not change jury verdict in murder context but is not controlling here)