People v. Fuller

Filed 9/15/22
See Concurring Opinion
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071794
v. (Super.Ct.No. RIF1701359)
ERIC LAVELL FULLER, JR., et al., OPINION ON TRANSFER
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. John D. Molloy, and
David A. Gunn, Judges. Affirmed in part, vacated in part, and remanded with directions.
David Zarmi for Defendant and Appellant Eric Lavell Fuller, Jr.
Steven A. Brody, under appointment by the Court of Appeal, for Defendant and
Appellant Destinee Sharniele Tresvant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Jennifer B.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part A of the Background and Parts A, B,
and C of the Discussion.
1
Truong, and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.
In People v. Tirado (2022) 12 Cal.5th 688, 692 (Tirado), the Supreme Court held
that when a firearm enhancement under Penal Code section 12022.53 has been charged
and found true, a sentencing court has discretion to strike the enhancement and impose an
uncharged lesser included enhancement. (Undesignated statutory citations are to the
Penal Code.) On this appeal, the People argue that a sentencing court’s discretion under
Tirado is limited to imposing a lesser enhancement under section 12022.53, so a court
that strikes an enhancement under section 12022.53 cannot impose an uncharged lesser
included enhancement under section 12022.5. We disagree and hold 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.
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
2
trial court found her competent to stand trial and found that she was ineligible for pretrial
mental health diversion.1
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 section 1001.36.
Fuller and Tresvant argue that the trial court abused its discretion by failing to consider
imposing uncharged lesser included firearm enhancements under section 12022.5,
subdivision (a) (section 12022.5(a)) instead of imposing the charged enhancements under
section 12022.53, subdivision (b) (section 12022.53(b)), and Tresvant argues that the trial
court abused its discretion by failing to strike the enhancement. Fuller also contends that
the trial court failed to consider his ability to pay various fines and fees. Moses raised
numerous sentencing issues.
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
1 In addition, codefendants Wensheila Marsha Swisher and Destin Carl Pipkins pled
guilty before trial to various offenses, resulting in sentences of two years and 15 years in
state prison.
3
severed Moses’s case, granted his request to dismiss review as to him, and remanded the
matter with directions for us to issue a remittitur as to Moses, which we did.2 We
accordingly do not address any issues concerning Moses in this opinion. We also do not
describe the underlying facts from the jury trial for Moses and Fuller, because the only
issues we address as to Fuller pertain to sentencing issues that do not depend on those
facts.
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 section 12022.53, so
it does not apply here. Defendants disagree.
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.
2 The Supreme Court dismissed review as to Moses before it vacated our prior
opinion. We issued the remittitur as to Moses before the Supreme Court vacated our
prior opinion. We and the Supreme Court therefore lost jurisdiction over Moses’s case
before the prior opinion was vacated. (See In re Martin (1962) 58 Cal.2d 133, 138 [“the
general rule is that an appellate court loses all control and jurisdiction over a cause after
remittitur has been issued”].) Our prior opinion therefore was not vacated as to Moses.
4
A. Tresvant’s Competency to Stand Trial
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
5
medications. Tresvant reported that she was experiencing auditory and visual
hallucinations and that she had heard hallucinated voices since childhood but had not
heard any hallucinated voices after she started taking medication in jail. She claimed that
the hallucinated voices distracted her and influenced her behavior. Dr. Jones did not test
Tresvant to determine if she was malingering and did not consider the inconsistencies in
her interview sufficient to conclude that she was malingering.
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
6
hear hallucinated voices, but that was not indicated in [Tresvant’s] records.” In addition,
it is possible that someone suffering from severe major depressive disorder could suffer
from hallucinations, and “depression, in some cases, could make a person incompetent.”
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
7
obtained and reviewed, Dr. Jones opined that a “preponderance of the evidence
supported” the conclusion that Tresvant was competent to stand trial.
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
8
preparing a juvenile fitness hearing report. Officer Villiers questioned Tresvant about her
mental health history, and Tresvant said that she had never had any mental health
treatment or counseling or been prescribed any psychotropic medication. She “did not
believe she needed counseling.” Tresvant seemed “quite bright,” “pleasant, attentive,
funny, [and] engaging.” Supervising Probation Officer Todd Hough testified in 2017 that
while Tresvant was housed at the juvenile hall where he worked, Tresvant was “one of
[the] top youth in the unit,” where she was considered a leader, was “very respectful to
staff,” interacted well with her peers, and did well in school.
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.
9
Tresvant thereafter pled guilty to five counts of robbery (for five separate victims)
and to one count of recklessly evading an officer, and she admitted as true that she
personally used a firearm in committing each of the five robbery offenses. (§§ 211,
12022.53(b), 1192.7, subd. (c)(8); Veh. Code, § 2800.2.) Tresvant was 17 years old
when she committed the offenses. In sentencing Tresvant, the court recognized that she
was young, had no prior record, had a difficult childhood, and pled guilty. In considering
Tresvant’s age, the court took into account “the immaturity and the impetuosity of the
young folks to make stupid decisions.” The court weighed the mitigating circumstances
against the gravity of offenses, which resulted in people being “terrorized,” and the court
indicated that there needed to be “serious consequences” for “terrorizing folks.” The
court sentenced Tresvant to 14 years in state prison. For the first robbery offense
(count 1), the court sentenced her to the midterm sentence of three years.
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. (§ 211; Veh. Code, § 2800.2.) The jury found
true that Fuller personally used a firearm in committing each of the robbery offenses.
(§§ 12022.53(b), 1192.7, subd. (c)(8).) The jury deadlocked on great bodily injury
enhancements associated with the first two robbery counts, so the court declared a
mistrial as to those allegations. (§ 12022.7, subd. (a).) The court granted the People’s
motion to dismiss those allegations. Fuller was 17 years old when he committed the
offenses.
10
After considering Fuller’s age and various aggravating circumstances, the trial
court imposed the upper term of five years on count 1, the first robbery offense. (§ 213,
subd. (a)(2).) The court imposed consecutive sentences for all of the robbery offenses
and declined to strike the firearm enhancements. With respect to the firearm
enhancement associated with count 1, the court acknowledged that it had the discretion to
strike the enhancement but declined to do so, explaining that “[t]his is exactly the type of
case that falls squarely within the heart of what the [L]egislature was after when they
enacted this statute.” The court sentenced Fuller to 32 years and four months in state
prison.
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.” (§ 1367, subd. (a); People v. Rogers (2006) 39 Cal.4th 826, 846.)
“A defendant is mentally incompetent if, as a result of a mental disorder or
developmental disability, he or she is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a rational manner.”
(People v. Lawley (2002) 27 Cal.4th 102, 131 (Lawley).) “When the accused presents
11
substantial evidence of incompetence, due process requires that the trial court conduct a
full competency hearing.” (Ibid.; § 1368.)
“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. (§ 1369, subds. (b)(1), (c).)
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].) Code of Civil Procedure section 630 provides that
“after all parties have completed the presentation of all of their evidence in a trial by jury,
any party may, without waiving his or her right to trial by jury in the event the motion is
not granted, move for an order directing entry of a verdict in its favor.” (Code Civ. Proc.,
§ 630, subd. (a).) “In considering whether there was error in granting of the directed
verdict, we must view the evidence in the light most favorable to [Tresvant] and indulge
12
in every legitimate inference that may be drawn from the evidence in [her] favor and
disregard conflicting evidence to determine whether there was evidence of sufficient
substantiality to support a verdict” that she was not competent to stand trial. (Mapp,
supra, 150 Cal.App.3d at p. 351.) To be substantial, evidence “must be ‘of ponderable
legal significance . . . reasonable in nature, credible, and of solid value.’” (People v.
Johnson (1980) 26 Cal.3d 557, 576 (Johnson).) We independently review a directed
verdict. (Guillory v. Hill (2015) 233 Cal.App.4th 240, 249.)
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
13
evidence in the light most favorable to Tresvant, the record does not contain any
evidence, let alone substantial evidence, that she was not competent to stand trial.
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 section
1001.36. We conclude that the trial court did not abuse its discretion.
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 section 1001.36 to
determine whether Tresvant had made a prima facie showing for pretrial mental health
14
diversion. The trial court assumed for the sake of argument that Tresvant had made a
prima facie showing that she suffered from a qualifying mental health disorder (namely,
major depressive disorder) and that the disorder was treatable. But the trial court found
that Tresvant had failed to make a prima facie showing that she did not pose an
unreasonable risk of danger to public safety if treated in the community and that her
disorder played a significant role in the commission of the charged offense.
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
Section 1001.36 provides that certain criminal defendants suffering from
qualifying mental disorders may be eligible for pretrial diversion, which the statute
15
defines as “postponement of prosecution, either temporarily or permanently, at any point
in the judicial process from the point at which the accused is charged until adjudication,
to allow the defendant to undergo mental health treatment.” (§ 1001.36, subds. (a)-(c).)
For defendants charged with a qualifying crime, a trial court may grant pretrial diversion
if all of the following requirements are met: (1) The court is satisfied that the defendant
suffers from a qualifying mental disorder; (2) the court is satisfied that the disorder
played a significant role in the commission of the charged offense; (3) a qualified mental
health expert opines that the defendant’s symptoms will respond to mental health
treatment; (4) the defendant consents to diversion and waives his or her speedy trial right;
(5) the defendant agrees to comply with treatment; and (6) the court is satisfied that the
defendant will not pose an unreasonable risk of danger to public safety if treated in the
community. (§ 1001.36, subd. (b)(A)-(F); People v. Frahs (2020) 9 Cal.5th 618, 626-627
(Frahs).) “If the defendant makes a prima facie showing that he or she meets all of the
threshold eligibility requirements and the defendant and the offense are suitable for
diversion, and the trial court is satisfied that the recommended program of mental health
treatment will meet the specialized mental health treatment needs of the defendant, then
the court may grant pretrial diversion. (§ 1001.36, subds. (a), (b)(3) & (c)(1).)” (Frahs,
supra, at p. 627.) “The hearing on the prima facie showing shall be informal and may
proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie
showing is not made, the court may summarily deny the request for diversion or grant
any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)
16
Diversion under section 1001.36 is discretionary, not mandatory, even if all of the
requirements are met. (§ 1001.36, subd. (a); Frahs, supra, 9 Cal.5th at p. 626.) We
therefore review for abuse of discretion the trial court’s decision whether to grant a
request for mental health diversion. (See People v. Hall (2016) 247 Cal.App.4th 1255,
1264 (Hall).)
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
section 1170.18 “would pose an unreasonable risk of danger to public safety.” (People v.
Jefferson (2016) 1 Cal.App.5th 235, 242; Hall, supra, 247 Cal.App.4th at pp. 1263-
1264.) Section 1001.36 expressly adopts the definition of “unreasonable risk of danger to
public safety” that is provided in section 1170.18. (§ 1001.36, subd. (b)(1)(F).) Tresvant
has not provided any reason why a different standard of review should apply to reviewing
the trial court’s determination of whether a defendant has made a prima facie showing
regarding this identical factor in section 1001.36. Likewise, the court’s determination of
whether the court “is satisfied that the defendant’s mental disorder was a significant
factor in the commission of the charged offense” (§ 1001.36, subd. (b)(1)(B)) appears to
be inherently discretionary—the court must exercise its discretion to determine whether it
17
is “satisfied” that the role of the mental disorder was sufficiently “significant” to qualify.
Because the trial court must exercise its discretion in making both of those
determinations, we review them for abuse of discretion. (In re White (2020) 9 Cal.5th
455, 469.) At the same time, we recognize that “‘[a]n abuse of discretion is shown when
the trial court applies the wrong legal standard’” (Hall, supra, at p. 1264), and we
independently review questions of statutory interpretation (People v. Dimacali (2019) 32
Cal.App.5th 822, 827).
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.)
18
Nothing in the language of the statute suggests that, in determining whether a
defendant has made a “prima facie showing” for eligibility, a trial court is required to
consider only the defendant’s evidence. The statute does not limit the court’s
consideration of “offers of proof, reliable hearsay, and argument of counsel” to those
presented or made by the defense. (§ 1001.36, subd. (b)(3).) The Legislature knew how
to and could have added limiting language to the statute if it desired such a limitation.
(People v. Albillar (2010) 51 Cal.4th 47, 57.) We will not read such limiting language
into the statutory text. (Pacific Gas & Electric Co. v. Superior Court (2017) 10
Cal.App.5th 563, 571.) In the absence of such an express limitation, we conclude that the
trial court is not limited to consideration of evidence, argument by counsel, and offers of
proof made by the defendant in determining whether the defendant has made a prima
facie showing of eligibility for diversion.
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.
19
The trial court did not abuse its discretion by concluding that Tresvant did not
make a prima facie showing that major depressive order was a significant factor in her
commission of the offenses. First, the offer of proof that Dr. Jones would testify that he
wrote in his report that Tresvant’s major depressive disorder influenced her or somehow
“allowed her to be manipulated to go into a vehicle where co-defendants were
committing this robbery” is of negligible value. Dr. Jones’s report was submitted in
support of Tresvant’s motion, and in it he concluded that Tresvant suffered from paranoid
schizophrenia and not major depressive disorder, as proffered by defense counsel.
Moreover, the paranoid schizophrenia diagnosis (which Dr. Jones retracted at the
competency trial, as described ante) was the basis for the report’s statement that Tresvant
was a “a very dependent and passive person who would be likely to blindly follow the
suggestions of her attorney or peers.” The first offer of proof concerning Dr. Jones’s
testimony thus is conclusively refuted by other evidence Tresvant submitted with her
motion.
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
20
someone a follower and not a leader does not show that the disorder played a significant
role (or any role) in that particular defendant’s commission of that particular offense.
The evidence does not exclude the obvious possibility that leaders can suffer from major
depression too, or that a person suffering from major depression who consequently tends
to be a follower in some circumstances may also be a leader or coequal participant in
others. The offer of proof that Dr. Jones would testify that Tresvant suffers from major
depression and that people who suffer from major depression tend to be followers rather
than leaders thus does not constitute a prima facie showing that Tresvant’s alleged mental
disorder played a significant role, or any role at all, in her commission of the offenses.
Therefore, even if the trial court were limited to considering Tresvant’s offers of proof,
the trial court did not abuse its discretion by concluding that Tresvant did not make a
prima facie showing that a mental disorder played a significant role in her commission of
the offenses.
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,
21
in which numerous people described her as smart and a leader. Moreover, when she was
evaluated for a juvenile fitness hearing one month after the offenses were committed,
Tresvant told the probation officer that she did not have any mental health history and
that she “did not believe she needed counseling.” Given all of that evidence, it was well
within the trial court’s discretion to determine that there was no prima facie showing that
at the time of the charged offenses Tresvant suffered from depression at all, let alone to
such a degree that her depression played a significant role or any role in her commission
of the offenses.
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 (§ 1001.36, subd. (b)(1)), we need not and do not decide
whether the trial court abused its discretion by concluding that Tresvant did not make a
prima facie showing that she did not pose an unreasonable risk of danger to public safety.
C. Senate Bill 567
“Robbery of the second degree is punishable by imprisonment in the state prison
for two, three, or five years.” (§ 213, subd. (a)(2).) Senate Bill 567 amended section
1170 to impose limits on a trial judge’s discretion in choosing between the low, middle,
and upper terms of a sentencing triad. (Stats. 2021, ch. 731.)
22
Senate Bill 567 amended section 1170 effective January 1, 2022.3 (Stats. 2021,
ch. 731.) Before the amendments, if a statute prescribed a sentencing triad, the court had
discretion to choose any one of the three terms. (Stats. 2021, ch. 731; Former § 1170,
subd. (b).) When presented with such a choice now, the court must impose the low term
if the defendant’s youth or another specified mitigating factor (such as the defendant’s
experience of childhood trauma) was “a contributing factor in the commission of the
offense,” “unless the court finds that the aggravating circumstances outweigh the
mitigating circumstances that imposition of the lower term would be contrary to the
interests of justice” (§ 1170, subd. (b)(6)(A)-(B)). A defendant is considered a youth for
purposes of this provision if the defendant was “under 26 years of age on the date the
offense was committed.” (§§ 1016.7, subd. (b), 1170, subd. (b)(6)(B).)
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
3 On October 8, 2021, the Governor signed into law three bills that amended section
1170: Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5),
Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, § 2), and Senate
Bill 567 (Stats. 2021, ch. 731, § 1.3). Senate Bill 567 has the highest chapter number, so
we presume that it was the last enacted of the bills. (Gov. Code, § 9510; People v.
Gerson (2022) 80 Cal.App.5th 1067, 1074, fn. 2 (Gerson).) Senate Bill 567 incorporates
the changes made to section 1170 by the other bills if all three bills were enacted and
became effective on or before January 1, 2022, and Senate Bill 567 was the last enacted
bill. (Stats. 2021, ch. 731, §3(c).) The conditions were satisfied. Because Senate Bill
567 was enacted after the other two statutes, Senate Bill 567 became the operative
legislation. (Stats. 2021, ch. 731, §§ 1.3, 3(c); Gov. Code, § 9605, subdivision (b).) We
therefore refer to all of the changes made to section 1170 as deriving from Senate Bill
567.
23
beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified
record of conviction. (§ 1170, subd. (b)(2)-(3).)
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 (§ 1170, subd. (b)(6)(B)), and the court consequently did not determine
whether their ages did contribute.
“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
24
“even if it had been aware that it had such discretion.”’” (Flores, supra, at p. 432;
Gutierrez, supra, at p. 1391.)
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.
25
Jones (1994) 24 Cal.App.4th 1780, 1783-1784; People v. Hanson (2000) 23 Cal.4th 355,
357-358.)
We do not address defendants’ other claimed errors about sentencing because the
trial court can address them at resentencing. For example, Fuller will have the
opportunity to present evidence and argument concerning his ability to pay any fines,
fees, and assessments. Tresvant will have the opportunity to reargue that her firearm
enhancement should be stricken and to present evidence and argument about whether the
low term presumption also applies because of childhood trauma. (§ 1170, subd.
(b)(6)(A).) Likewise, we do not address Fuller’s or the People’s arguments concerning
the amendments to subdivision (b)(2) of section 1170 and the court’s imposition of the
upper term sentence for count 1 on Fuller. If the court concludes under subdivision
(b)(6)(B) of section 1170 that Fuller should not be sentenced to the low term, the court
can then consider whether it should sentence Fuller to the upper term in light of the new
requirements of subdivision (b)(2) of section 1170.
D. Lesser Included Firearm Enhancements
Defendants argue that the trial court erred by failing to consider imposing
uncharged lesser included firearm enhancements under section 12022.5(a) rather than
imposing the charged firearm enhancements under section 12022.53(b). In our prior
opinion, we rejected that argument and held that the court was not authorized to impose
an uncharged lesser firearm enhancement. (People v. Moses (July 1, 2021, E071794)
[nonpub.].) The Supreme Court has since held to the contrary in Tirado, supra, 12
26
Cal.5th 688, 692. The People argue that Tirado does not apply here because it applies
only to lesser enhancements under section 12022.53, but we disagree. Thus, on remand,
the court may consider imposing uncharged lesser firearm enhancements under section
12022.5(a).
Section 12022.5(a) provides that “any 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, unless use of a
firearm is an element of that offense.”
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 section 1385 a court may, “in the interest of
justice,” “strike or dismiss an enhancement otherwise required to be imposed by this
section.” Subdivision (j) of section 12022.53 provides: “When an enhancement
specified in this section has been admitted or found to be true, the court shall impose
27
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.”
In Tirado, the jury found true a firearm enhancement under section 12022.53,
subdivision (d). (Tirado, supra, 12 Cal.5th at p. 693.) The trial court denied the
defendant’s motion to strike the enhancement. (Id. at p. 694.) On appeal, the defendant
argued that the trial court did not understand that it also had the discretion to impose an
uncharged lesser included enhancement under subdivision (b) or (c) of section 12022.53.
(Tirado, at p. 694.) The Court of Appeal rejected the argument and concluded that the
trial court was not authorized to impose the lesser enhancement. (Ibid.) Another Court
of Appeal had previously reached the opposite conclusion. (People v. Morrison (2019)
34 Cal.App.5th 217, 222-223 (Morrison).)
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
28
by case law concerning a court’s general authority to impose a lesser uncharged
enhancement and by the text of section 12022.53. (Tirado, at p. 697.)
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 section 12022.5(a) when the jury found true an
enhancement under section 12022.53, subdivision (d). (Fialho, supra, at pp. 1395, 1398-
1399; Tirado, at p. 698.) Tirado cited with approval Fialho’s reasoning that “[i]t would
elevate form over substance” “to require ‘a specific lesser included enhancement code
section [to] be pleaded before [the] lesser included enhancement can be imposed.’”
(Tirado, at p. 698.)
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
29
when the greater enhancement was not factually or legally supported. (Tirado, supra, 12
Cal.5th at p. 699.) Tirado explained that nothing in the cases “suggests that a trial court’s
power to impose an uncharged enhancement is conditioned on the charged and
adjudicated enhancement being inapplicable. Under those cases, imposition of an
uncharged enhancement is permitted so long as the facts supporting its imposition are
alleged and found true.” (Ibid.)
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 section 12022.5(a), which defendants argue is the
30
uncharged lesser the trial court should consider imposing here. We disagree with the
People’s characterization of Tirado.
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
section 12022.5(a) was imposed after an enhancement under section 12022.53 was found
true by the jury. (Tirado, at p. 698; Fialho, supra, 229 Cal.App.4th at pp. 1393-1394.) In
addition, the court rejected the People’s contention “that a trial court’s power to impose
an uncharged enhancement is conditioned on the charged and adjudicated enhancement
being inapplicable.” (Tirado, at p. 699.) For all of these reasons, we interpret Tirado as
standing for the proposition that when only an enhancement under section 12022.53 has
31
been charged and found true, a sentencing court wishing to impose an uncharged lesser
enhancement is not limited to lesser enhancements found within section 12022.53. We
are bound by Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
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 section 12022.53(b) to impose lesser
uncharged enhancements under section 12022.5(a). Given our conclusion that remand
for full resentencing is necessary in light of Senate Bill 567, we need not and do not
address the People’s alternative argument that remand for the trial court to consider
imposing a lesser firearm enhancement would be futile because the record demonstrates
that the trial court would not do so.
32
DISPOSITION
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.
33
[E071794, The People v. Eric Lavell Fuller, Jr., et al.]
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 Penal Code section 12022.53, subdivision (b) to lesser included but
uncharged enhancements under Penal Code section 12022.5, subdivision (a).1 However,
I come to that conclusion, not for the reasons stated in the majority opinion, but as a
matter of straightforward statutory interpretation.
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
1 All further references to a section are to a section of the Penal Code. All
further references to a subdivision are to a subdivision of Penal Code section 12022.53,
unless otherwise specified.
1
than imposing punishment authorized under any other law, unless another enhancement
provides for a greater penalty or a longer term of imprisonment.”
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 Section 1385 and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section.”
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
2 Significantly, Tirado is talking here about the first sentence of subdivision
(j).
2
However, just as subdivisions (b), (c), and (d) provide that a defendant who meets
their criteria “shall be punished” by a specified additional term, section 12022.5,
subdivision (a) provides: “[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 . . . .” (Italics
added.)
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, section 1170.1, subdivision (e), provides: “All enhancements 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.” Indeed, the Supreme Court has observed that “subdivision (j) is
simply a restatement of section 1170.1, subdivision (e) . . . .” (People v. Garcia (2002)
28 Cal.4th 1166, 1175; see also People v. Anderson (2020) 9 Cal.5th 946, 953
[subdivision (j) “restates the same basic point” as section 1170.1, subdivision (e).”].)
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, section 1170.1, subdivision (e) authorizes the same court
to impose an uncharged lesser included enhancement under section 12022.5, subdivision
(a).
The majority opinion similarly concludes that the second sentence of subdivision
(j) is no obstacle, but for different reasons. I find these reasons unpersuasive.
3
First, it says, “Tirado held that . . . subdivision (j) . . . does not limit a court’s
discretion to impose uncharged lesser enhancements (Tirado, supra, 12 Cal.5th at pp.
699-700) . . . .” (Maj. opn. at p. 31.) The cited portion of Tirado, however, was
discussing the first sentence of subdivision (j). The only issue in Tirado was whether a
court could impose a lesser included enhancement under section 12022.53; the Supreme
Court had no occasion to consider the effect of the second sentence of subdivision (j).
“‘It is axiomatic that cases are not authority for propositions not considered.’ [Citation.]”
(People v. Jennings (2010) 50 Cal.4th 616, 684.)
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 section 12022.5, subdivision (a) instead. (Fialho, supra, at
pp. 1394-1399.) Fialho did not explain how this could be squared with the second
sentence of subdivision (j). Once again, cases are not authority for propositions not
considered. Possibly Fialho did not see the second sentence of subdivision (j) as an
obstacle because there, the subdivision (d) enhancements were invalid. If so, it is hardly
authority for disregarding subdivision (j) here.
Third, the majority opinion says, “Tirado held that . . . ‘imposition of an
uncharged enhancement is permitted so long as the facts supporting its imposition are
4
alleged and found true’ [citation].” (Maj. opn. at p. 31.) This ignores Tirado’s statement
that it is the first sentence of “[s]ection 12022.53(j) . . . that authorizes the imposition of
enhancements under section 12022.53.” (Tirado at p. 700.) In our case, the first sentence
of subdivision (j) does not apply; hence, it is necessary to find some other source of
statutory authority. As discussed, I find it in sections 12022.5 and 1170.1.
I therefore write separately.
RAMIREZ
P. J.
5