People v. FullerPeople v. Fuller
BACKGROUND
This appeal arises from the armed robbery of a nail salon followed by a high-speed pursuit of the perpetrators after they fled the scene. Victims identified Aaron Murl Moses, Jr., Eric Lavell Fuller, Jr., and Destinee Sharniele Tresvant as three of the perpetrators. A jury convicted Moses and Fuller of numerous offenses arising from the incident and found related firearm enhancements true. Tresvant pleaded guilty after the
On appeal, Tresvant argues that the trial court erred by directing a verdict against her in a competency proceeding and by failing thereafter to conclude that she did not make a prima facie showing for pretrial mental health diversion under
In a prior unpublished opinion, we vacated Moses‘s sentence because we concluded that it was unauthorized. The trial court failed to impose a sentence for each of Moses‘s offenses. (People v. Moses (July 1, 2021, E071794) [nonpub.].) We consequently vacated Moses‘s sentence and remanded the matter for resentencing.
The Supreme Court granted review, vacated our prior opinion, and transferred the case of Fuller and Tresvant (collectively, defendants) back to us with directions to reconsider it in light of Tirado. Earlier, while review was pending, the Supreme Court
On remand from the Supreme Court, Fuller, Tresvant, and the People filed supplemental briefs concerning Tirado. The People argue that Tirado only authorizes a trial court to impose uncharged lesser enhancements included within
We also asked the parties to submit supplemental briefing on the effect of Senate Bill No. 567 (Senate Bill 567) (2021–2022 Reg. Sess.) on defendants’ sentences, which they have done. The People concede that Senate Bill 567 applies retroactively to this case but argue that remand is not warranted. Again, defendants disagree.
Before trial commenced for all defendants, Tresvant‘s counsel expressed doubt about Tresvant‘s competency, because Tresvant had made statements to counsel about the presence of FBI agents and people with a third eye in her cell. The trial court suspended proceedings as to Tresvant. After Tresvant was examined by court-appointed medical professionals for the defense and the prosecution, the court held a competency trial before a jury.
1. Defense Evidence
The defense presented one witness, Dr. William H. Jones, Ph.D., a court-appointed clinical psychologist who in October 2018 had conducted a 90-minute evaluation of Tresvant for competency. Dr. Jones reviewed Tresvant‘s police records but did not review her mental health records from jail or her childhood medical records. He questioned Tresvant about her family, education, relationships, employment history, medical history, and psychiatric history. He also asked Tresvant questions designed to elicit information about her psychological functioning, how she thinks, and whether she was experiencing symptoms of emotional distress. He further questioned Tresvant about “her understanding of the courtroom proceedings,” and he believed that Tresvant “appear[ed] to understand” that the purpose of the evaluation was to determine her competency.
Tresvant reported that as a child she had been treated for unspecified mental health issues. When she was interviewed, Tresvant was taking two types of antidepressant
On the basis of his 90-minute evaluation of Tresvant, Dr. Jones concluded and summarized in a written report that Tresvant suffered from paranoid schizophrenia, was not competent to stand trial, and would not be able to assist her attorney in presenting a defense.
On cross-examination, Dr. Jones testified that after preparing the report he changed his opinion about Tresvant‘s competency to stand trial and whether she suffered from paranoid schizophrenia. Before testifying, Dr. Jones reviewed Tresvant‘s mental health records from jail and reports prepared by two other mental health experts, Dr. David Walsh, Ph.D., and Dr. Michael E. Kania, Ph.D., who had evaluated Tresvant before Dr. Jones.
In reviewing Tresvant‘s medical records, Dr. Jones learned that when Tresvant first spoke with mental health staff at jail “she did not report any voices.” Tresvant instead presented to them as having anxiety and depression and was diagnosed as suffering from major depressive disorder of an unspecified degree—mild, moderate, or severe. Dr. Jones noted that “[t]here‘s a type of severe depression in which a person may
A few weeks before Dr. Jones evaluated Tresvant, Dr. Walsh evaluated her and reported that Tresvant “did not endorse or exhibit any symptoms of psychosis, mania, panic or intoxication.” In reviewing the reports of Drs. Walsh and Kania, Dr. Jones was struck by the fact that Tresvant had reported hallucinations to one of those doctors and not to the other. Having reviewed the additional material about Tresvant‘s mental health, Dr. Jones reflected on cross-examination about how some of Tresvant‘s claims of auditory and visual hallucinations to him had been “unusual” or “odd” and were not of the kind typically reported by individuals suffering from paranoid schizophrenia. Tresvant‘s volunteering that the voices “never instructed her to hurt anybody else” also was atypical, but he noted that inmates who express that they might hurt someone else are housed differently in jail.
Given the variation in Tresvant‘s reports of hallucinations, Dr. Jones found his conclusion that Tresvant experienced hallucinations to be “more questionable.” On the basis of the inconsistent reporting of hallucinations to Drs. Walsh and Kania and to mental health staff at jail, Dr. Jones reported that he had become “doubtful about the schizophrenia conclusion,” thinking it was “probably not correct.” Dr. Jones opined that Tresvant suffered instead from depression and anxiety. He doubted that Tresvant‘s responses to him were accurate. On the basis of “all the new information” he had
2. Directed Verdict Motion
Following the defense case, the prosecutor orally moved for a directed verdict, arguing that there was not “sufficient evidence to sustain a jury to find, even by a preponderance of the evidence, that the defendant is incompetent.” The court entertained argument from both parties and reserved ruling on the motion until after hearing the prosecution‘s evidence.
3. Prosecution Evidence
The prosecution called three witnesses: Dr. Walsh and two deputy probation officers who had interacted with Tresvant in juvenile hall. Dr. Walsh opined that Tresvant was competent to stand trial, and Dr. Walsh did not believe that Tresvant suffered from any mental illness, including paranoid schizophrenia. Tresvant did not exhibit “any outward symptoms of mental illness,” psychosis, panic, or intoxication. Dr. Walsh believed that Tresvant was being voluntarily evasive, a conclusion he did not reach lightly, and that any symptoms of impairment she might have been displaying resulted from “an intentional strategy” and were “not due to mental illness.” Dr. Walsh knew that Tresvant was taking antidepressant medication, which he explained is “relatively common” in jail.
In May 2017, approximately one month after the offenses were committed, Deputy Probation Officer Colin Villiers interviewed Tresvant for the purpose of
4. Directed Verdict on Competency
After hearing the prosecution‘s evidence, the court concluded that Tresvant had not carried her burden of demonstrating by a preponderance of the evidence that she was incompetent to stand trial. Finding there to be no substantial evidence to support a verdict that Tresvant was incompetent, the court directed the verdict against Tresvant and found her to be competent.
B. Pretrial Mental Health Diversion and Tresvant‘s Guilty Plea and Sentencing
After the trial court found Tresvant competent to stand trial, Tresvant filed two motions for pretrial mental health diversion on the ground that she suffers from major depressive disorder. The trial court conducted a hearing on the motions and found that Tresvant did not make a prima facie showing of two of the eligibility requirements for diversion.
C. Fuller‘s Convictions and Sentence
A jury convicted Fuller of five counts of robbery (one for each victim) and one count of recklessly evading an officer. (
DISCUSSION
A. Tresvant‘s Competency to Stand Trial
Tresvant argues that the trial court erred by directing a verdict for the prosecution on her competency to stand trial. She claims that there was substantial evidence from which a jury could have found her incompetent and that she is entitled to a new trial on her competency. We are not persuaded.
“A person shall not be tried or adjudged to punishment . . . while that person is mentally incompetent.” (
“A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence,” (Lawley, supra, 27 Cal.4th at p. 131) and the defendant bears the burden of proof (People v. Mendoza (2016) 62 Cal.4th 856, 871). Upon commencement of the competency trial, “counsel for the defendant shall offer evidence in support of the allegation of mental incompetence,” and the prosecution follows by presenting its case. (
Even though a competency hearing arises in the context of a criminal trial, the hearing “is a special proceeding, governed generally by the rules applicable to civil proceedings.” (Lawley, supra, 27 Cal.4th at p. 131; People v. Lawson (1918) 178 Cal. 722, 728; see also People v. Conrad (1982) 132 Cal.App.3d 361, 374 (Conrad) [affirming the trial court‘s entry of judgment notwithstanding the verdict on the defendant‘s competence]; People v. Mapp (1983) 150 Cal.App.3d 346, 351, 353 (Mapp) [relying on Conrad in affirming directed verdict for the prosecution in a proceeding regarding restoration of sanity].)
Tresvant‘s only witness was Dr. Jones, and he concluded that she was competent to stand trial. In arguing that there was substantial evidence from which a jury could have concluded otherwise, Tresvant points to Dr. Jones‘s initial conclusion that Tresvant was not competent to stand trial, which was based solely on his interview of her. Tresvant argues that the trial court improperly weighed the credibility of witnesses and was required to ignore Dr. Jones‘s subsequent conclusion that she was competent to stand trial. But this was not a situation in which competing experts reached different conclusions, and the trial court credited one expert opinion while discrediting the other. Instead, the same expert withdrew his prior opinion and concluded that Tresvant was competent to stand trial. Dr. Jones‘s repudiation of his prior opinion in the written report deprived that opinion of evidentiary value—that is, it was not “‘reasonable in nature, credible, and of solid value.‘” (Johnson, supra, 26 Cal.3d at p. 576.) There consequently was no expert evidence that Tresvant was not competent to stand trial. Thus, viewing the
Because there was no evidence from which the jury could conclude that Tresvant was not competent to stand trial, we conclude that the trial court did not err by entering a directed verdict against Tresvant on her competency.
B. Pretrial Mental Health Diversion for Tresvant
Tresvant next argues that the trial court erred by concluding that she did not make a prima facie showing of eligibility for pretrial mental health diversion under
1. Relevant Proceeding
Attached to Tresvant‘s second motion for pretrial mental health diversion were the October 26, 2018, competency evaluation from Dr. Jones in which he had concluded she suffered from paranoid schizophrenia, her medical records from jail, various academic transcripts and certificates, and letters from friends and family. A California assemblyman who had known Tresvant her entire life described her as being “a strong leader among her peers in the community.” Someone else with an unspecified connection to Tresvant described her as “a born leader.” Others remarked on her academic prowess, intelligence, and strength.
Sometime after finding Tresvant competent to stand trial, the trial court held a hearing it described as “a prima facie diversion hearing” under
With respect to whether Tresvant‘s major depressive disorder played a significant role in the commission of the charged offenses, defense counsel made an offer of proof that Dr. Jones would testify that (1) “he wrote in the report that her major depressive disorder influenced her, or somehow the condition allowed her to be manipulated to go into a vehicle where co-defendants were committing this robbery,” (2) Tresvant suffered from this condition when the robberies were committed, and (3) people suffering from major depressive disorder are followers and not leaders. The court accepted that there existed evidence that Tresvant was depressed after having been in custody for over one year but concluded there was no evidence that she suffered from depression when the crimes were committed. The court explained, “[t]here is no real indication, even from the doctor‘s reports that I reviewed, that she was suffering from that type of condition based on responses from her family and friends at the time of the incident herself.”
2. Analysis
Tresvant argues that we do not review for abuse of discretion the trial court‘s determination of whether a defendant has made a prima facie showing of eligibility, arguing instead that she “need only show the court erred in failing to apply the correct prima facie analysis to her showing of eligibility.” For the two factors on which the trial court based its determination in this case, we do not agree. We review for abuse of discretion the trial court‘s determination of whether resentencing a petitioner under
Tresvant argues that her offers of proof concerning Dr. Jones‘s testimony constituted a prima facie showing that her mental health disorder was a “significant factor” in her commission of the offenses. She contends that at the prima facie showing stage the trial court was not allowed to consider anything except her uncontradicted evidence in determining whether she made a prima facie showing. In the context of this case, we do not agree.
In general, a prima facie showing “‘is one that is sufficient to support the position of the party in question.‘” (People v. Garcia (2020) 57 Cal.App.5th 100, 110; People v. Law (2020) 48 Cal.App.5th 811, 820.) Prima facie evidence, however, “‘‘‘is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. It may, however, be contradicted, and other evidence is always admissible for that purpose.‘‘‘‘’ (People v. Nunez (2020) 57 Cal.App.5th 78, 88, review granted Jan. 13, 2021, S265918.)
Moreover, in the context of this case, requiring the court to consider only Tresvant‘s evidence and offers of proof would be particularly absurd, given the evidence that had already been introduced about Tresvant‘s mental health in the competency proceeding. It would make no sense to require the court to disregard that evidence, find a prima facie case on that basis, set a further hearing on diversion, and then be confronted with the same evidence that the court knew about but deliberately ignored at the prima facie showing stage. Thus, in determining whether Tresvant made a prima facie showing, the trial court properly considered evidence outside of the offers of proof presented by Tresvant. The court did not apply an improper analytical framework.
Second, the remaining offers of proof concerning Dr. Jones‘s testimony do not address how Tresvant‘s mental disorder played a role in her commission of the offenses, let alone the significance of that role. Aside from the statements about what Dr. Jones had written in his report, the offers of proof were that Dr. Jones would testify that Tresvant suffered from major depressive disorder when the robberies were committed and that people who suffer from major depressive disorder are followers and not leaders. Evidence that a defendant suffers from a mental disorder that generally tends to make
The evidence introduced at the competency trial further supports our conclusion that the trial court did not abuse its discretion. At the competency trial, there was no evidence that Tresvant was depressed when she committed the offenses. Instead, the evidence showed that she suffered from an unspecified degree of major depressive disorder while incarcerated, which Dr. Walsh explained is common. The probation officers who interacted with Tresvant around the time of her detention (immediately after the robberies were committed) described her as bright, engaged, and a leader. Those impressions were overwhelmingly supported by the reference letters Tresvant submitted,
For all of these reasons, we conclude that the trial court did not abuse its discretion by concluding that Tresvant failed to make a prima facie showing that her mental disorder was not a significant factor in the commission of the offenses. Because a defendant is not statutorily eligible for pretrial mental health diversion unless all of the threshold criteria are met (
C. Senate Bill 567
“Robbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years.” (
In addition, section 1170 now provides that the upper term shall not be imposed unless the facts underlying the aggravating circumstances that would justify imposing the upper term are (1) stipulated to by the defendant, (2) found true by the trier of fact
Defendants argue that we must remand for resentencing because the trial court‘s imposition of the upper term for Fuller on count 1 and the midterm for Tresvant on count 1 does not satisfy the new requirements of amended section 1170, which took effect while their appeal was pending. The People concede that Senate Bill 567 applies retroactively to this appeal, and we agree. (See, e.g., People v. Flores (2022) 75 Cal.App.5th 495, 500; People v. Garcia (2022) 76 Cal.App.5th 887, 902 (Garcia).)
Both Fuller and Tresvant were 17 years old when the offenses were committed. In sentencing defendants, the trial court considered defendants’ ages. But the court was not constrained by Senate Bill 567‘s amendments to section 1170 at sentencing, because they did not yet exist. Thus, the court was not bound by the now-governing presumption favoring imposition of the low term if defendants’ ages contributed to their commission of the offenses (
“When being sentenced, a defendant is entitled to decisions made by a court exercising informed discretion.” (Tirado, supra, 12 Cal.5th at p. 694; People v. Flores (2020) 9 Cal.5th 371, 431; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) When, as here, the trial court did not have the benefit of ameliorative legislation affecting its sentencing discretion, “‘the appropriate remedy is to remand for resentencing unless the record “clearly indicate[s]” that the trial court would have reached the same conclusion
We cannot say that the record clearly indicates that the trial court would impose the same sentences given the new presumptions and criteria affecting its discretion in section 1170, subdivision (b). In particular, we cannot say on this record whether the trial court would conclude that defendants’ ages contributed to their commission of the offenses so as to trigger the low term presumption in subdivision (b)(6) of section 1170. Moreover, we also cannot say with confidence what sentences the court would impose if it applied that presumption. We consequently vacate Fuller‘s upper term sentence on count 1 and Tresvant‘s middle term sentence on count 1. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
Because we are vacating defendants’ sentences on count 1, defendants are entitled to a full resentencing. (Gerson, supra, 80 Cal.App.5th at p. 1096.) Under the full resentencing rule, “when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.‘” (People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.) The trial court thus will have the opportunity to “revisit all of its sentencing choices in light of the new legislation.” (Garcia, supra, 76 Cal.App.5th at p. 902.) The sentences imposed on resentencing may not exceed the original aggregate sentences. (People v. Jones (1994) 24 Cal.App.4th 1780, 1783-1784; People v. Hanson (2000) 23 Cal.4th 355, 357-358.)
D. Lesser Included Firearm Enhancements
Defendants argue that the trial court erred by failing to consider imposing uncharged lesser included firearm enhancements under
Section 12022.53 creates “a tiered system of sentencing enhancements for specified felonies involving firearms.” (Tirado, supra, 12 Cal.5th at p. 692.) “Section 12022.53, subdivision (a) lists the felonies to which the section applies. Section 12022.53(b) mandates the imposition of a 10-year enhancement for personal use of a firearm in the commission of one of those felonies; section 12022.53[, subdivision] (c) mandates the imposition of a 20-year enhancement for personal and intentional discharge of a firearm; and section 12022.53[, subdivision] (d) provides for a 25 year-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death to a person other than an accomplice.” (Id. at p. 695.) Subdivision (h) of section 12022.53 provides that under
In Tirado, the jury found true a firearm enhancement under
The Supreme Court granted review to resolve the conflict and agreed with Morrison, supra, 34 Cal.App.5th 217. (Tirado, supra, 12 Cal.5th at p. 697.) The Supreme Court “concluded that courts are not categorically prohibited from imposing uncharged enhancements and that the power to do so is not conditioned on the charged and adjudicated enhancement being legally or factually inapplicable.” (Id. at p. 699). Tirado held that even though “the prosecution did not specifically allege enhancements under section 12022.53(b) or [subdivision] (c), the trial court could impose those enhancements even when the section 12022.53[, subdivision] (d) enhancement was not legally or factually inapplicable.” (Id. at p. 697.) Tirado found its conclusion supported
Looking to the relevant case law, Tirado noted its conclusion is consistent with the general principle “that a court is not categorically prohibited from imposing a lesser included, uncharged enhancement so long as the prosecution has charged the greater enhancement and the facts supporting imposition of the lesser enhancement have been alleged and found true.” (Tirado, supra, 12 Cal.5th at p. 697.) The Supreme Court cited People v. Strickland (1974) 11 Cal.3d 946 and People v. Fialho (2014) 229 Cal.App.4th 1389 (Fialho), among other cases, as standing for that general principle. In Strickland, the Supreme Court held that a trial court could impose the lesser uncharged enhancement in section 12022 when the criteria for the charged enhancement under section 12022.5 were not met. (Strickland, supra, at p. 961; Tirado, at pp. 697-698.) Relying on Strickland, the Court of Appeal in Fialho held that the trial court did not err by imposing a lesser uncharged enhancement under
Tirado rejected the appellate court‘s interpretation of those cases as standing for the limited principle that a court could impose an uncharged lesser enhancement only
Tirado next analyzed the language of section 12022.53 to determine whether the statute limits a court‘s discretion to impose an uncharged lesser enhancement. The Supreme Court concluded that it does not. (Tirado, supra, 12 Cal.5th at pp. 699-700.) The Supreme Court held: “When an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53[, subdivision] (d) enhancement, and the court determines that the section 12022.53[, subdivision] (d) enhancement should be struck or dismissed under section 12022.53[, subdivision] (h), the court may, under section 12022.53[, subdivision] (j), impose an enhancement under section 12022.53(b) or [subdivision] (c).” (Id. at p. 700.) Tirado otherwise stated that “the statutory framework permits a court to strike the section 12022.53[, subdivision] (d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead.” (Id. at p. 692.)
The People argue that Tirado stands for the narrow proposition that a trial court has discretion to impose uncharged enhancements under section 12022.53 and not those contained in other statutes, such as
To support their argument, the People rely on the language of subdivision (j) of section 12022.53, which provides that when an enhancement under section 12022.53 “has been admitted or found to be true, the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other law, unless another enhancement provides for a greater penalty or a longer term of imprisonment.” We agree that the text suggests that the only lesser enhancement that may be imposed when an enhancement under section 12022.53 has been found true would be another enhancement under section 12022.53. But Tirado held that (1) subdivision (j) of section 12022.53 does not limit a court‘s discretion to impose uncharged lesser enhancements (Tirado, supra, 12 Cal.5th at pp. 699-700), and (2) “imposition of an uncharged enhancement is permitted so long as the facts supporting its imposition are alleged and found true” (id. at p. 699). Moreover, the Supreme Court discussed Fialho with approval, and in that case an uncharged lesser enhancement under
The People attempt to distinguish Fialho, supra, 229 Cal.App.4th 1389 as “only reaffirm[ing] the basic principles of notice and opportunity.” But the Supreme Court‘s approving discussion of Fialho was not so limited. Rather, the court described Fialho as one of the cases illustrating the broad principle that “courts are not categorically prohibited from imposing uncharged enhancements and that the power to do so is not conditioned on the charged and adjudicated enhancement being legally or factually inapplicable.” (Tirado, supra, 12 Cal.5th at pp. 698-699.)
Applying Tirado, we conclude that on remand the trial court may consider whether to strike defendants’ enhancements under
We vacate defendants’ sentences on count 1. The matter is remanded for resentencing of Fuller and Tresvant consistent with this opinion. In all other respects, the judgments are affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
MENETREZ
J.
I concur:
McKINSTER
J.
RAMIREZ, P. J., Concurring.
I concur in the judgment and in parts A, B, and C of the Discussion. I also concur with the conclusion in part D that the trial court has discretion to reduce the charged enhancements under
Section 12022.53 was originally enacted in 1997. (Stats. 1997, ch. 503, § 3, pp. 3135-3138.) Subdivision (j) was part of that original enactment. (Ibid.) It has been amended once; the amendment made minor wording changes but did not substantively change its meaning. (Stats. 2006, ch. 901, § 11.1, p. 7077.)
Subdivision (j) consists of two sentences. The first sentence provides: “For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” The second sentence provides: “When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment for that enhancement pursuant to this section rather
Subdivision (h), in its current form, was enacted in 2017. (Stats. 2017, ch. 682, § 2, p. 5106.) As relevant here, it provides: “The court may, in the interest of justice pursuant to
In sum, then, the second sentence of subdivision (j) requires the court to “impose punishment . . . pursuant to this section . . . .” Subdivision (h), however, allows a court to “strike or dismiss an enhancement otherwise required to be imposed by this section.” (Italics added.) Thus, subdivision (h) expressly overrides the second sentence of subdivision (j).
I recognize that “[s]ection 12022.53(h) does not authorize the imposition of any of section 12022.53‘s enhancements; it only authorizes a trial court to ’strike or dismiss an enhancement otherwise required to be imposed by this section.’ [Citation.]” (People v. Tirado (2022) 12 Cal.5th 688, 700, some italics added (Tirado).) Rather, “[s]ection 12022.53(j) is the subdivision that authorizes the imposition of enhancements under section 12022.53. It provides that for the penalties in section 12022.53 to apply, the existence of any fact required by section 12022.53(b), (c), or (d) must be alleged in the accusatory pleading and admitted or found true.” (Ibid., italics added.)2
And just as the first sentence of subdivision (j) provides that the existence of any fact required under subdivision (b), (c), or (d) must be alleged and either admitted or found,
In other words, subdivision (h) authorizes a trial court to strike all section 12022.53 enhancements, notwithstanding the second sentence of subdivision (j). Then, once those have been stricken,
The majority opinion similarly concludes that the second sentence of subdivision (j) is no obstacle, but for different reasons. I find these reasons unpersuasive.
Second, the majority opinion relies on People v. Fialho (2014) 229 Cal.App.4th 1389. (Maj. opn. at p. 31.) There, the jury found true enhancements under subdivision (d); however, none of the section 12022.53 enhancements applied, because the defendant had been convicted of completed and attempted voluntary manslaughter, rather than murder. (Fialho, supra, at pp. 1393-1395.) The appellate court allowed the trial court to impose enhancements under
Third, the majority opinion says, ”Tirado held that . . . ‘imposition of an uncharged enhancement is permitted so long as the facts supporting its imposition are
I therefore write separately.
RAMIREZ
P. J.