People v. Johnson 104/22 CA3 Case Details ( 2022 )

Filed 10/4/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094491
Plaintiff and Respondent, (Super. Ct. Nos. 02F05812,
03F05484)
v.
FREDRICK LAMAR JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County,
Michael W. Sweet, Judge. Vacated and remanded.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri
and Eric L. Christoffersen, Supervising Deputy Attorneys General, for Plaintiff and
Respondent.
1
We are called upon to decide the extent to which fairly recent legislation, when
considered together with the available caselaw interpreting that legislation, conferred new
discretion on trial courts at sentencing. The discretion at issue here is a trial court’s
choice to impose an uncharged lesser included firearm enhancement in lieu of the greater
enhancement of conviction, after the greater enhancement is stricken by the trial court in
its exercise of discretion. In what has become the customary positioning in these cases,
here the offender argues for more discretion and the Attorney General argues for less.
As we next explain, in this case we agree with defendant Fredrick Lamar Johnson
that the trial court has broad discretion to impose a lesser uncharged firearm enhancement
provided for by Penal Code section 12022.5, subdivision (a), when it exercises its
discretion to strike a Penal Code section 12022.53, subdivision (b) firearm enhancement
of conviction.1 We remand the case for a full resentencing hearing, where the trial court
may consider exercise of its discretion and any other new laws related to sentencing that
may apply to defendant.
BACKGROUND
On January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No.
620) went into effect. (Stats. 2017, ch. 682, §§ 1-2.) Senate Bill No. 620 amended
sections 12022.5 and 12022.53, granting trial courts discretion pursuant to section 1385
to strike or dismiss certain firearm enhancements. (§§ 12022.5, subd. (c) (12022.5(c));
12022.53, subd. (h) (12022.53(h).)
Relying primarily on legislative intent, on January 20, 2022, our Supreme Court
held in People v. Tirado (2022) 12 Cal.5th 688 (Tirado) that although the amendments at
issue spoke only in terms of striking or dismissing a firearm enhancement, trial courts
also have discretion under Senate Bill No. 620 to impose uncharged lesser section
1 Undesignated statutory references are to the Penal Code.
2
12022.53 enhancements after striking or dismissing the greater. As relevant here, this
interpretation appeared to leave unresolved an apparent conflict with other unamended
statutory provisions that require imposition of the harshest available punishment (see
§ 12022.53, subd. (f) (12022.53(f)) [requiring the court to impose “the enhancement that
provides the longest term of imprisonment”] and limit sentencing to enhancements
contained within the same statute unless the other statute provided for harsher
consequences (§ 12022.53, subd. (j) (12022.53(j)) [requiring the court to impose
punishment for the § 12022.53 enhancement “rather than imposing punishment
authorized under any other” statute unless the other enhancement provides for a more
severe penalty or a longer prison term]).
Long before the passage of Senate Bill No. 620, in 2002, defendant pleaded no
contest in two cases to various counts in connection with multiple armed robberies and,
as relevant here, admitted seven section 12022.53, subdivision (b) (12022.53(b))
enhancements. He was sentenced to 46 years four months in prison (People v. Johnson
(Nov. 29, 2018, C086041) [nonpub. opn.]) and resentenced approximately 15 years later
to 46 years in prison (§ 1170, subd. (d); People v. Hill (1986) 185 Cal.App.3d 831, 833).
By the time we considered defendant’s appeal from his second sentencing hearing,
Senate Bill No. 620 had been enacted, and we remanded the case for discretionary
resentencing pursuant to the new amendments, with directions to obtain and consider a
supplemental probation report. (People v. Johnson, supra, C086014.) At the
resentencing hearing on remand, as relevant here, the trial court acknowledged it had
discretion--pursuant to the amendments to section 12022.53 resulting from the passage of
Senate Bill No. 620--to strike one or more of defendant’s seven section 12022.53(b)
firearm enhancements. (§ 12022.53(h).) After making a number of appropriate
considerations, the court concluded the firearm enhancements were “inextricably
entwined” with each of the robberies and assaults and declined to strike any of the
3
enhancements. The court was not asked to consider imposing lesser firearm
enhancements in lieu of the section 12022.53(b) enhancements of conviction.
Defendant timely appealed; the case was initially fully briefed on March 7, 2022,
and assigned to the panel as presently constituted on May 5, 2022. On June 9, 2022, we
directed the parties to file supplemental briefs. We set the case for oral argument, and it
was argued and submitted on September 27, 2022.
Relying on the Supreme Court’s recent decision in Tirado, supra, 12 Cal.5th 688,
defendant argues we should again remand the case for resentencing to allow the trial
court to exercise informed discretion on whether to strike one or more of the section
12022.53(b) firearm enhancements with the option to then substitute uncharged lesser
enhancements for the stricken enhancements of conviction. The Attorney General did
not respond to this claim in his responsive briefing; in supplemental briefing, he now
argues section 12022.53(j) prohibits the trial court from imposing an uncharged section
12022.5(a) enhancement after striking a section 12022.53 enhancement of conviction,
and contends our high court’s decision in Tirado does not dictate a contrary conclusion.
While this case was pending, Division Two of the Fourth Appellate District decided
People v. Fuller (2022) __ Cal.App.5th __ [2022 Cal.App. Lexis 787], which concluded
that “under Tirado the sentencing court may impose an uncharged lesser included
enhancement under section 12022.5 after striking a greater enhancement under section
12022.53.” (Id. at p. *2.) Some unpublished decisions have come to this same result, but
others have come to a contrary conclusion.2
2 Our Supreme Court recently granted the defendant’s petition for review in one of these
unpublished cases, and simultaneously denied the Attorney General’s request to publish.
(People v. McDavid, review granted Sept. 28, 2022, S2752119.)
4
We agree with defendant that remand is warranted, as we next explain.3
DISCUSSION
I
Legal Principles
A. Standard of Review
This is a question of statutory interpretation, which we review de novo. (People v.
Medina (2018) 24 Cal.App.5th 61, 66.) “Under fundamental rules of statutory
construction, we must ascertain the intent of the Legislature, or the electorate, from
examining the statute as a whole in order to effectuate the purpose of the law.”
(People v. Saelee (2018) 28 Cal.App.5th 744, 752.) “Because the statutory language is
generally the most reliable indicator of that intent, we look first at the words themselves,
giving them their usual and ordinary meaning and construing them in context. [Citation.]
If the plain language of the statute is clear and unambiguous, our inquiry ends, and we
need not embark on judicial construction.” (People v. Johnson (2002) 28 Cal.4th 240,
244.)
“Nevertheless, the ‘plain meaning’ rule does not prevent a court from determining
whether the literal meaning of the statute comports with its purpose. [Citations.] Thus,
although the words used by the Legislature are the most useful guide to its intent, we do
not view the language of the statute in isolation. [Citation.] Rather, we construe the
words of the statute in context, keeping in mind the statutory purpose. [Citation.] We
will not follow the plain meaning of the statute ‘when to do so would “frustrate[] the
manifest purposes of the legislation as a whole or [lead] to absurd results.” ’ [Citations.]
3 Because we remand for full resentencing, we do not discuss defendant’s claim on
appeal that the trial court relied on an inadequate probation report, to which trial counsel
was ineffective for failing to object. On remand, a new probation report should be
prepared.
5
Instead, we will ‘ “interpret legislation reasonably and . . . attempt to give effect to the
apparent purpose of the statute.” ’ ” (MacIsaac v. Waste Management Collection &
Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1083.) Thus, to determine the most
reasonable interpretation of a statute, we look to its legislative history and background.
(Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332; People v. DeJesus (2019) 37
Cal.App.5th 1124, 1129-1130.) “ ‘We must harmonize “the various parts of a statutory
enactment . . . by considering the particular clause or section in the context of the
statutory framework as a whole.” ’ ” (People v. Camacho (2019) 32 Cal.App.5th 998,
1007.)
We next consider the relevant statutory provisions and their statutory framework.
B. Section 12022.53
Section 12022.53 “sets out ‘sentence enhancements for personal use or discharge
of a firearm in the commission’ of specified felonies. [Citation.] 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[, subd.] (c) mandates the
imposition of a 20-year enhancement for personal and intentional discharge of a firearm;
and section 12022.53[, subd.] (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.” (Tirado, supra, 12 Cal.5th at pp. 694-695.)
The operative version of section 12022.53(h), effective after the passage of Senate
Bill No. 620, provides that a “court may, in the interest of justice pursuant to Section
1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section.” (§ 12022.53(h).) Both Tirado and People v. Morrison
(2019) 34 Cal.App.5th 217 (Morrison) interpreted subdivision (h) to establish that the
trial court was not faced with the binary choice of either imposing or striking a section
12022.53 enhancement at sentencing, but also had discretion to impose an uncharged
6
lesser enhancement from that same statute. (Tirado, supra, 12 Cal. 5th at p. 700;
Morrison, at p. 223.) These cases did not reach the propriety of imposition of section
12022.5 enhancements in lieu of stricken section 12022.53 enhancements as an exercise
of the new discretion conferred by section 12022.53(h); however, they reached their
respective conclusions despite the continued presence of two subdivisions within section
12022.53 that appear to restrict the imposition of a lesser enhancement itself as well as its
corresponding sentence.4
One of these restrictive subdivisions, section 12022.53(j), provides as relevant
here: “If a section 12022.53 enhancement is admitted or found true, the court must
‘impose punishment for that enhancement pursuant to this section rather than imposing
punishment authorized under any other [provision of] law, unless another enhancement
provides for a greater penalty or a longer term of imprisonment.’ (§ 12022.53(j).)”
(Tirado, supra, 12 Cal.5th at p. 695.) The Attorney General relies on this subdivision,
section 12022.53(j), to support his argument that the trial court does not have discretion
to impose a section 12022.5 enhancement in lieu of a stricken section 12022.53
enhancement; we elaborate on this argument below.
4 In Morrison, the appellate court examined whether trial courts may impose “an
uncharged enhancement under section 12022.53, subdivision (b) or (c) in lieu of an
enhancement under section 12022.53, subdivision (d) if it was unsupported by substantial
evidence or was defective or legally inapplicable in some other respect.” (Morrison,
supra, 34 Cal.App.5th at p. 222.) The court observed that by incorporating section 1385
into section 12022.53, through the amendments to section 12022.53(h), the Legislature
ensured that trial courts were no longer required to impose the maximum enhancement
under section 12022.53. (Morrison at p. 223.) Courts now have a wide range of
sentencing choices, which include striking the section 12022.53 enhancement in its
entirety, or imposing sections 12022.53(b) or (c) as “middle ground to a lifetime
enhancement under section 12022.53[(d)], if such an outcome was found to be in the
interests of justice under section 1385.” (Morrison, at p. 223.)
7
The other restrictive subdivision, section 12022.53(f), although not discussed at
length by either party, is also relevant to our analysis. Subdivision (f) provides in
relevant part that: “[I]f more than one enhancement per person is found true under this
section” the trial court must impose the “enhancement that provides the longest term of
imprisonment.” (§ 12022.53(f); see Tirado, supra, 12 Cal.5th at p. 695.)
C. Section 12022.5
Section 12022.5, subdivision (a) (§ 12022.5(a)) provides in relevant part that:
“[A]ny person who personally uses a firearm in the commission of a felony or attempted
felony shall be punished by an additional and consecutive term of imprisonment in the
state prison for 3, 4, or 10 years.” The operative version of section 12022.5(c), effective
after the passage of Senate Bill No. 620, provides that “[t]he court may, in the interest of
justice pursuant to section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.”
Because proving all the facts necessary to establish a section 12022.53
enhancement also proves a section 12022.5(a) enhancement, courts have permitted
imposition of the latter in lieu of the former, where the former was the enhancement of
conviction but was inapplicable to the charged offense. (People v. Fialho (2014) 229
Cal.App.4th 1389, 1395-1396 (Fialho) [imposition of uncharged but “lesser included”
§ 12022.5(a) enhancement permitted where § 12022.53 enhancement found true but not
applicable to charged crime]; see also People v. Strickland (1974) 11 Cal. 3d 946, 961
(Strickland) [imposition of uncharged § 12022 enhancement permitted where (former)
§ 12022.5 enhancement found true but did not apply to charged crime].)
Because section 12022.5(a) provides a triad of three, four, or 10 years for personal
use of a firearm in the commission of any felony, whereas section 12022.53(b) mandates
the imposition of a 10-year enhancement for personal use of a firearm in the commission
of certain specified felonies, section 12022.5(a) punishes the same conduct as does
section 12022.53(b)--personal use of a firearm in the commission of a felony--but casts a
8
broader net, encompassing any felony, and provides for more nuanced punishment,
permitting a triad of considerations for sentencing. Any violation of 12022.53(b) is
necessarily a violation of 12022.5(a), as the conduct required to qualify for the former
enhancement is encompassed by the conduct required to qualify for the latter.
D. Section 1385
Senate Bill No. 620 amended both sections 12022.53 and 12022.5 to provide that
pursuant to the trial court’s authority under section 1385, the trial court could, in the
interest of justice, strike or dismiss a firearm enhancement otherwise required to be
imposed by those two sections. (Stats 2017, ch. 682, §§ 1(c)-2(h).) (Morrison, supra, 34
Cal.App.5th at pp. 221-222.) Although section 1385 “literally authorizes the dismissal of
‘an action,’ it has been construed to permit the dismissal of parts of an action.” (Tirado,
supra, 12 Cal.5th at p. 696.) Both Tirado and Morrison relied on the trial court’s broad
discretion under section 1385, not constricted as relevant here by case law or statutory
language, as the basis for concluding the Legislature intended to grant trial courts
discretion to impose punishment for an uncharged lesser included firearm enhancement
when striking the enhancement of conviction. (See Tirado, supra, 12 Cal.5th at pp. 695-
696, 697-702; Morrison, supra, 34 Cal.App.5th at pp. 222-223.)
II
Analysis
A. Tirado Does Not Preclude the Trial Courts’ Exercise of Discretion
The Attorney General first argues our Supreme Court’s decision in Tirado “does
not authorize” trial courts to reduce a section 12022.53(b) enhancement to a section
12022.5(a) enhancement. He points out that Tirado actually cited and relied on
12022.53(j) in reaching its conclusion that imposition of a lesser enhancement within the
same statute was authorized by this subdivision. Defendant acknowledges Tirado does
not address the issue raised here, but contends its holding supports his claim on rehearing
through its reasoning that section 12022.53(h) permitted reduction of the enhancements at
9
issue, and also by its reliance on the legislative history of the amendments, which
supported exercise of discretion to reduce sentences and provide for tailored and
appropriate punishment for firearm use.
The Supreme Court considered a narrow issue in Tirado, whether a trial court may
“impose a lesser uncharged enhancement under” section 12022.53, subdivisions (b) or (c)
when striking the greater (§ 12022.53, subd. (d) (§ 12022.53(d)) enhancement, “[o]r is
the court limited to imposing the section 12022.53(d) enhancement or striking it?”
(Tirado, supra, 12 Cal.5th 688 at pp. 692, 696.) After reviewing the legislative intent
underlying the amendments to section 12022.53, our high court concluded “the statutory
framework permits a court to strike the section 12022.53(d) enhancement found true by
the jury and to impose a lesser uncharged statutory enhancement instead.” (Tirado, at p.
692.)
Tirado did not consider whether trial courts have discretion to strike a section
12022.53(b) enhancement and substitute an uncharged, section 12022.5(a) enhancement.
Because cases are not authority for issues not decided therein, the decision in Tirado
informs but does not dictate our conclusion. (See People v. Evans (2008) 44 Cal.4th 590,
599.) The Tirado court’s discussion of Fialho, supra, 229 Cal.App.4th 1389 and
Strickland, supra, 11 Cal. 3d 946 is, however, relevant to our discussion here, and assists
us in reaching our conclusion. In Strickland, our Supreme Court held “an uncharged
enhancement may be imposed when a charged and adjudicated enhancement is
inapplicable to the offense for which the defendant is ultimately convicted.” (Tirado,
supra, 12 Cal.5th at p. 697; see Strickland, supra, 11 Cal.3d at pp. 959-961 [trial court
could impose § 12022 enhancement after finding the § 12022.5 enhancement inapplicable
to the underlying conviction because the jury had “found all the facts necessary for
application of section 12022” when it found true the § 12022.5 enhancement].) In
Fialho, the jury found true a section 12022.53(d) enhancement, but the trial court
imposed a section 12022.5(a) enhancement after finding section 12022.53 inapplicable to
10
voluntary manslaughter, the underlying offense. (Fialho, supra, 229 Cal.App.4th at pp.
1391-1392.) “On appeal, the defendant urged that the section 12022.5, subdivision (a)
enhancement should be stricken because it had not been alleged in the information or
found true by the jury. [Citation.] Relying on Strickland, the Court of Appeal rejected
the argument, concluding that ‘when an enhancement is alleged in the information, the
defendant is put on notice ‘that his [or her] conduct [could] also be in violation of an
uncharged enhancement that “would be applicable in any case” in which the charged
enhancement applies, and imposition of the uncharged enhancement is permitted.’
[Citation.] Because the defendant had conceded there was sufficient evidence to support
the imposition of a section 12022.5, subdivision (a) enhancement, had it been alleged, the
Court of Appeal concluded the enhancement was properly imposed. [Citation.] It would
elevate form over substance, the court reasoned, to require ‘a specific lesser included
enhancement code section [to] be pleaded before [the] lesser included enhancement can
be imposed.’ [Citation.] The authority of a trial court to impose an uncharged
enhancement, in appropriate circumstances, has also been upheld against similar
challenges by defendants when the evidence was insufficient to support the adjudicated
enhancement.” (Tirado, supra, 12 Cal.5th at p. 698.)
In Tirado, our Supreme Court rejected the notion that the propriety of the
discretion exercised discussed in Strickland and Fialho was “conditioned on the charged
and adjudicated enhancement being legally or factually inapplicable.” (Tirado, supra, 12
Cal.5th at p. 699.) Instead, our high court explained, “[u]nder those cases, imposition of
an uncharged enhancement is permitted so long as the facts supporting its imposition are
alleged and found true.” (Ibid.) In that regard, trial courts have the discretion to impose
“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.” (Id. at p. 697.)
11
The Tirado court next considered “whether section 12022.53 bars a trial court
from imposing an enhancement under section 12022.53(b) or (c) when those
enhancements are not specifically listed in the accusatory pleading, but the facts giving
rise to the enhancement are alleged and found true.” (Tirado, supra, 12 Cal.5th at p.
699.) Specifically, the court explained the question was “whether section 12022.53(j)
authorizes the court to impose an enhancement under section 12022.53(b) or (c) after
striking a section 12022.53(d) enhancement”--a question that required a determination of
“whether the existence of facts required by section 12022.53(b) and (c) were alleged and
found true.” (Id. at p. 700.) The court answered that question in the affirmative,
concluding the charging language and the jury’s findings with regard to the section
12022.53(d) enhancement “would meet the use requirement of section 12022.53(b) and
the discharge element of section 12022.53(c).” (Tirado. at p. 700.)
Thus, Tirado may fairly be read to permit the factual findings underlying an
enhancement that is stricken by the trial court for any permissible reason to be used to
support imposition of a lesser uncharged enhancement, as long as the facts underlying the
lesser included enhancement were alleged and found true. (Tirado, supra, 12 Cal.5th at
p. 700.) The factual findings survive even when the enhancement is stricken, and support
imposition of a lesser. Applying that same reasoning here, once the trial court strikes any
(and all) existing section 12022.53 enhancement(s), the question is whether those
enhancements’ supporting facts were alleged and found true such that a section 12022.5
enhancement may then be imposed. As explained above, Tirado and Fialho answer the
question in the affirmative.
Further, as we explain in more detail below, a review of the statutes and legislative
history on which the court in Tirado relied leads us to conclude that the addition of
12022.53(h) by Senate Bill No. 620 did indeed convey to the sentencing courts the
discretion to replace (in addition to strike) a section 12022.53(b) enhancement, as long as
the factual basis for the lesser was pleaded and either admitted or found true.
12
B. Section 12022.53(j) Does not Prohibit Imposition of Uncharged Lesser
Enhancements
The Attorney General next argues section 12022.53(j) prohibits substituting a
section 12022.53 enhancement of conviction with an enhancement described by a
different statute that carries with its application the possibility of a lower penalty, such as
section 12022.5. As we mentioned above, the portion of subdivision (j) on which the
Attorney General relies states: “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 than imposing punishment authorized under any other law,
unless another enhancement provides for a greater penalty or a longer term of
imprisonment.” (§ 12022.53(j).)
We do not dispute that the directive to trial courts requiring they “shall impose
punishment for that enhancement pursuant to this section,” rather than leaving open an
option to impose punishment under a statute with a sentencing scheme that permits more
leniency, would indeed seem to preclude reduction to a section 12022.5 enhancement.
As we have discussed, section 12022.5 does not provide for a greater penalty or longer
term of imprisonment than section 12022.53(b); indeed, it provides options for lesser
penalties and lower terms of imprisonment. However, as we have also discussed,
following the Senate Bill No. 620 amendments to section 12022.53(h), courts now “may
. . . strike or dismiss an enhancement otherwise required to be imposed by this
section . . . .” (§ 12022.53(h), italics added.)
But even assuming that both section 12022.53(f) and section 12022.53(j) are
mandatory when punishment is being imposed pursuant to an existing section 12022.53
enhancement (§§ 12022.53(j) [“the court shall impose punishment” for a section
12022.53 enhancement], 12022.53(f) [“the court shall impose upon that person the
enhancement that provides the longest term of imprisonment”]), if the trial court strikes
all section 12022.53 enhancements alleged and found true by the jury under section
13
12022.53(h), none of the mandatory provisions in section 12022.53(f) or section
12022.53(j) apply. This is because there is no longer an existing section 12022.53
enhancement for which punishment may be imposed. When the enhancement itself is
stricken, it is as if the true finding on the enhancement itself never existed and it cannot
be considered for any purpose connected with defendant’s sentencing, as relevant here.
(See People v. Barboza (2021) 68 Cal.App.5th 955, 965; People v. Flores (2021) 63
Cal.App.5th 368, 383.) Simply put, we fail to see how section 12022.53(j) can correctly
be construed to block imposition of a lesser where its prefatory requirement: “When an
enhancement specified in this section has been admitted or found to be true” is no longer
applicable, because any such enhancement “specified in [§ 12022.53]” has been stricken
and thereby no longer exists for purposes of sentencing consideration.
Thus, while section 12022.53(j) continues to require trial courts to impose a
section 12022.53 enhancement that is charged and admitted or found true and not
subsequently stricken, section 12022.53(h) now permits striking of any or all of the
section 12022.53 enhancements and, if all are stricken, imposition of a lesser
enhancement when discretion is exercised pursuant to section 1385. Section 12022.53(h)
conferred on trial courts the discretion to be more flexible in sentencing, to look beyond
the maximum penalty and consider lesser included, uncharged enhancements, including
those found in section 12022.5, and allow the punishment to fit the offense and the
offender. This result makes sense, and would seem to serve the interests of justice by
securing additional imprisonment options of three or four years for gun possession in this
context, instead of requiring an all or nothing departure from a mandatory 10-year
penalty to no penalty whatsoever, as seen at the sentencing hearing in our case on review.
C. The Legislative Intent Behind Senate Bill No. 620 Supports Our Conclusion
To determine the most reasonable interpretation of a statute, we look to its
legislative history and background. (Goodman v. Lozano, supra, 47 Cal.4th at p. 1332;
People v. DeJesus, supra, 37 Cal.App.5th at pp. 1129-1130.) To adopt the Attorney
14
General’s restrictive view would contradict the explicit intent of the Legislature, which
determined that Senate Bill No. 620 “would allow judges ‘to impose sentences that fit the
severity of the offense,’ ” and give them “flexibility to impose lighter sentences in
appropriate circumstances.” (Tirado, supra, 12 Cal.5th at pp. 701-702; Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 620 (2017-2018 Reg. Sess.) Mar. 28, 2017, p. 8.)
Our conclusion that section 12022.53(h) allows trial courts to strike a section 12022.53
enhancement and impose an uncharged section 12022.5 enhancement is consistent with
this expressed intent.
Importantly, the Legislature added the same language to both sections 12022.53
and 12022.5 in order to eliminate the mandatory nature of California’s firearm
enhancements and grant courts discretion to fashion punishments tailored to fit the
specific offense and offender. (§§ 12022.53(h), 12022.5(c).) These identical
amendments reflected the Legislature’s concerted effort to resolve the problems it found
had been created by the mandatory nature of the firearm enhancements, such as the
increase in prison population and state funds devoted to prisons. (See Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 620 (2017-2018 Reg. Sess.) Mar. 28, 2017, p. 3;
see also Tirado, supra, 12 Cal.5th at p. 701.)
Senate Bill No. 620 also reflected the Legislature’s intent to expand the courts’
discretion at sentencing and give courts flexibility “to impose lighter sentences in
appropriate circumstances,” while retaining “the core characteristics of the sentencing
scheme” by keeping the “harshest applicable sentence” as the default punishment. (See
Sen. Com. on Public Safety, Analysis of Sen. Bill No. 620 (2017-2018 Reg. Sess.) Mar.
28, 2017, p. 8; see also Tirado, supra, 12 Cal.5th at pp. 701-702.) By granting courts
this discretion, the Legislature acknowledged the role of the trial court at sentencing to
“evaluate[] all relevant circumstances to ensure that the punishment fits the offense and
the offender,” not to merely impose mandatory maxima. (People v. Shaw (2020) 56
Cal.App.5th 582, 587-588; see also People v. Marsh (1984) 36 Cal.3d 134, 144 [§ 1385
15
provides trial courts with a broad range of sentencing options between no prison and life
in prison].)
Our conclusion that the Legislature intended to confer on trial courts a range of
sentencing options and broad discretion to choose among them when imposing firearm
use enhancements is further reinforced when we consider subsequently enacted Senate
Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill No. 81). Senate Bill No. 81 extensively
amended section 1385 (Stats. 2021, ch. 721, § 1, eff. Jan. 1, 2022) “to specify factors that
the trial court must consider when deciding whether to strike enhancements from a
defendant's sentence in the interest of justice.” (People v. Sek (2022) 74 Cal.App.5th
657, 674.) The amendments clarify that: “Notwithstanding any other law, the court shall
dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of
that enhancement is prohibited by any initiative statute.” (§ 1385, subd. (c)(1), italics
added.)
One of the mitigating factors to which courts must now “give great weight” under
these new amendments, specifically when deciding whether to impose sentence for a
firearm enhancement, is whether the firearm used “was inoperable or unloaded.” (§
1385, subd. (c)(2)(I).) Evidence of this circumstance “weighs greatly in favor of
dismissing the enhancement.” (§ 1385, subd. (c)(2).)
The applicability of section 12022.53(b) enhancements does not turn on this
circumstance, as that statute provides that “the firearm need not be operable or loaded for
this enhancement to apply.” (§ 12022.53(b).) Considering this mitigating factor and
giving it great weight, a trial court that did not have discretion to impose a lesser
enhancement after striking an enhancement of conviction charged under section
12022.53(b) that involved an inoperative or unloaded gun would be restricted from
finding “middle ground. . ., if such an outcome was found to be in the interests of justice
under section 1385” (Morrison, supra, 34 Cal.App.5th at p. 223) by imposing some
middle penalty between 0 and 10 years. Restricting the trial courts’ ability to find middle
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ground would be contrary to the legislative intent to “allow judges ‘to impose sentences
that fit the severity of the offense.’ ” (Tirado, supra, 12 Cal.5th at p. 701; Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 620 (2017-2018 Reg. Sess.) Mar. 28, 2017, p. 8.)
By making this subsequent change to section 1385, the Legislature has continued to
demonstrate its intent to expand courts’ discretion and provide them with a wide range of
sentencing choices, particularly when it comes to firearm use enhancements. (See People
v. Marsh, supra, 36 Cal.3d at p. 144; see also Tirado, supra, 12 Cal.5th at p. 702.)
We note another change to section 1385, the addition of the mitigating factor
providing that if “[t]he application of an enhancement could result in a sentence of over
20 years” in prison, “the enhancement shall be dismissed.” (§ 1385, subd. (c)(3)(C).)
Again, this direction is indicative of the Legislature’s intent to allow nuanced downward
adjustments to an offender’s total sentence by adjusting the enhancements, such as in the
manner contemplated here. Discretion is therefore conferred “[n]otwithstanding any
other law.” (§ 1385, subd. (c)(1).)
D. The Language of Fialho Supports Our Conclusion
As we mentioned in support of a different point, ante, in Fialho, supra, 229
Cal.App.4th 1389, the trial court struck a section 12022.53(d) enhancement and imposed
a section 12022.5(a) enhancement in its stead. This is the identical relief sought as an
option in this case, although in Fialho the adjustment from the greater to the lesser
enhancement was necessitated by the fact that section 12022.53 was legally inapplicable
to the defendant’s circumstances due to the nature of the underlying charge. The Fialho
court upheld the trial court’s sentencing decision. As we detailed above in our discussion
of Tirado, our Supreme Court approvingly discussed Fialho in that case, and explained
the authority to impose the lesser included enhancement (as discussed in Fialho and
Strickland) applied even when the enhancement is stricken for a reason other than the
factual or legal inapplicability of the greater enhancement.
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The substantive provisions of sections 12022.53(f) and (j) have remained
unchanged since section 12022.53 was enacted in 2010. Thus, those restrictive
provisions were included in section 12022.53 when the Fialho court agreed that trial
courts have discretion to impose a section 12022.5(a) enhancement in lieu of a stricken
section 12022.53 enhancement. The Legislature did not respond to that opinion and,
instead, in 2017, amended section 12022.53(h) to give the trial court broad discretion to
strike section 12022.53 enhancements in the interest of justice, as we have described at
length ante. When the Legislature amends a statute without changing the statute in
response to a prior judicial construction, it is presumed the Legislature knew of the
interpretation and acquiesced to it. (See People v. Blakeley (2000) 23 Cal.4th 82, 89.)
Thus, the actions of the courts and Legislature surrounding the Fialho decision also
support our conclusion here.
E. People v. Fuller Supports our Conclusion
In People v. Fuller, supra, __ Cal.App.5th __ [2022 Cal.App. Lexis 787] the
appellate court interpreted Tirado as “standing for the proposition that when only an
enhancement under section 12022.53 has been charged and found true, a sentencing court
is not limited to lesser enhancements found within section 12022.53.” (Id. at p. *13.)
Although we decline to adopt the Fuller court’s reasoning in its entirety, we agree with
that court’s conclusion that imposition of a section 12022.5(a) enhancement in lieu of a
stricken section 12022.53(b) enhancement is legally permissible after the recent changes
in the applicable law, as interpreted by Tirado. (See Fuller, at pp. *12-*13.)
F. Remand is Required
Having concluded that the trial court has discretion to substitute an uncharged
lesser enhancement for a stricken section 12022.53(b) enhancement, we agree with
defendant that remand for informed exercise of the trial court’s discretion is appropriate
here. There are seven section 12022.53(b) enhancements remaining. The court’s
comments regarding the nature of the firearm enhancements as inextricably intertwined
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with (and thus an integral part of) each underlying robbery charge combined with its
comments regarding potentially mitigating factors (such as defendant’s age, traumatic
childhood, and postconviction conduct) suggest the court was focused on the propriety of
striking some or all of the enhancements, but did not consider whether it had discretion to
substitute an enhancement providing for lesser punishment in their stead. Indeed, at the
time of defendant’s resentencing, there was authority indicating the trial court lacked the
latter form of discretion. (See People v. Tirado (2019) 38 Cal.App.5th 637, 643, sub.
opn. (2022) 12 Cal.5th 688 [sentencing court is faced with a binary choice to either
dismiss the enhancement in the interest of justice or take no action].)
“When being sentenced, a defendant is entitled to decisions made by a court
exercising informed discretion. [Citation.] A court acting while unaware of the scope of
its discretion is understood to have abused it.” (Tirado, supra, 12 Cal.5th at p. 694.)
We shall remand the case for resentencing to allow the court to exercise its
informed discretion on whether to strike any of the remaining firearm enhancements and
impose a lesser enhancement in its stead. A new probation report should be prepared.
Defendant may renew any of his previous arguments seeking dismissal of the
enhancements as well as make any new arguments for dismissal with or without a
corresponding imposition of a lesser enhancement on remand. (See People v. Buycks
(2018) 5 Cal.5th 857, 893.) There are a number of statutory amendments that may be
relevant to defendant’s resentencing, among them sections 1170.03, subdivisions (a)(3)
and (a)(4), and 1385, subdivisions (c)(2) and (c)(3). We express no opinion as to how the
trial court should exercise its discretion on remand.
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DISPOSITION
Defendant’s sentence is vacated and the matter is remanded for resentencing and
the trial court’s exercise its discretion in accordance with this opinion. At resentencing,
the trial court may also consider any other new sentencing laws that apply to defendant,
as his judgment is not yet final.
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Earl, J.
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