People v. Tirado
251 Cal. Rptr. 3d 412
| Cal. Ct. App. 5th | 2019Background
- Defendant entered a convenience store with an accomplice; when the accomplice tried to steal beer a bystander (Brian) intervened and tackled him. Defendant then shot Brian in the lower back with a semiautomatic pistol; Brian suffered great bodily injury.
- The prosecutor charged multiple counts; the jury convicted defendant of second-degree robbery (count 2), DUI (count 5), and assault with a semiautomatic firearm (count 6). The jury found true only the Penal Code § 12022.53, subd. (d) enhancement (personal and intentional discharge causing great bodily injury) as to robbery.
- At sentencing the court denied defendant’s motion to strike the § 12022.53(d) enhancement under Penal Code § 1385 (after § 12022.53(h) was amended by SB 620 to permit such strikes) and imposed robbery term plus 25 years to life for the enhancement.
- On appeal defendant argued the trial court was unaware it could substitute a lesser § 12022.53 enhancement (subd. (b) or (c)) for the charged subd. (d) enhancement instead of simply striking it.
- The court of appeal held the trial court had discretion to strike/dismiss the charged § 12022.53(d) enhancement but did not have statutory authority to substitute a different § 12022.53 enhancement when the prosecution had charged only one enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could substitute a different § 12022.53 enhancement for the charged subd. (d) enhancement when denying/considering a § 1385 motion | The People argued statutory text limits courts to striking/dismissing enhancements under § 12022.53(h) and § 1385; substitution is not authorized | Tirado argued the court had discretion under § 1385 and amended § 12022.53(h) to strike portions of the enhancement or substitute a lesser enhancement (e.g., subd. (b) or (c)) | Court held substitution is not authorized: court may either impose or strike/dismiss the charged enhancement; it cannot modify or substitute another enhancement absent it having been charged or being a proper lesser-included enhancement |
Key Cases Cited
- People v. Thomas, 4 Cal.4th 206 (trial court power to dismiss an enhancement exists)
- People v. Carmony, 33 Cal.4th 367 (abuse of discretion standard; court must be aware of its discretion under § 1385)
- John v. Superior Court, 63 Cal.4th 91 (standard of review for statutory interpretation)
- People v. Rodriguez, 55 Cal.4th 1125 (plain-meaning rule in statutory interpretation)
- People v. Superior Court (Romero), 13 Cal.4th 497 (history and limits of § 1385 dismissals in sentencing context)
- People v. Birks, 19 Cal.4th 108 (prosecutor’s charging discretion and separation of powers)
- People v. Eubanks, 14 Cal.4th 580 (scope of prosecutorial charging decisions)
- People v. Fialho, 229 Cal.App.4th 1389 (trial court may impose uncharged lesser enhancement when charged enhancement is legally inapplicable)
- People v. Lucas, 55 Cal.App.4th 721 (imposition of an uncharged arming enhancement in lieu of unsupported charged enhancement)
- People v. Wharton, 53 Cal.3d 522 (failure to develop a constitutional due process argument forfeits review)
- People v. Morrison, 34 Cal.App.5th 217 (contrary authority to which this court respectfully disagreed)