AB 620 Applied to 12022.53 in Robbery, Shooting Case

Penal Code § 12022.53 establishes a tiered system of sentencing enhancements for specified felonies involving firearms.  It was first enacted in 1997 as part of the state’s “Use a Gun and You’re Done” law.

The statute sets out “sentence enhancements for personal use or discharge of a firearm in the commission of specified felonies.”  Section 12022.53(a) lists the felonies to which the section applies.  Section 12022.53(b) mandates the imposition of a ten-year enhancement for personal use of a firearm in the commission of one of those felonies.  Section 12022.53(c) mandates the imposition of a twenty-year enhancement for personal and intentional discharge of a firearm and section 12022.53(d) provides for a 25 years-to-life enhancement for personal use and intentional discharge of a firearm causing great bodily injury or death to a person other than an accomplice.

Before the passage of Assembly Bill 620 becoming law on January 1, 2018, courts were prohibited from striking firearm enhancements.  However, in 2017, the Legislature passed Assembly Bill 620 to remove this prohibition. 

Penal Code § 12022.53(h) now 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.

Section 1385 provides that a court may, “in the furtherance of justice, order an action to be dismissed.”  Although section 1385 authorizes the dismissal of “an action,” it has been construed to also permit the dismissal of parts of an action.  People v. Burke (1956) 47 Cal. 2d 45, 51.  This includes a weapon or firearm enhancement.  People v. Price (1984) 151 Cal. App. 3d 803, 818-819; People v. Dorsey (1972) 28 Cal. App. 3d 15, 17 – 18.

The question that has followed is whether Penal Code § 12022.53(h) permits a court to strike the § 12022.53(d) enhancement and in its place, impose a lesser enhancement under § 12022.53(b) or § 12022.53(c), even if the lesser enhancement were not specifically charged in the information or found true by the jury.

Courts of appeal have split on this question.  People v. Morrison (2019) 34 Cal. App. 5th 217, a First Appellate District Court case, said yes.  Morrison, at 222.  However, the Fifth Appellate District disagreed in People v. Tirado (2019) 38 Cal. App. 5th 637, holding that the court must either strike the enhancement entirely or let it stand.  There was no third option.

It is against this framework that the California Supreme Court was asked to review the Fifth Appellate District ruling in People v. Jose Guadalupe Tirado on appeal. 

The facts of the Tirado case are good to know to appreciate the California Supreme Court’s ruling that sided with Morrison and reversed the Fifth Appellate District in Tirado. 

Brian Phillips was in a Bakersfield convenience store when Jose Guadalupe Tirado and Anthony Aldaco walked in.  As Aldaco tried to steal a case of beer, Phillips intervened and the two men wrestled to the floor.  During the struggle, Tirado walked behind Phillips and shot him in the back with a semiautomatic pistol.  Tirado and Aldaco then ran out of the store with the beer.  Tirado was caught by police later the same morning.

Although Phillips survived the shooting, a bullet fractured his hip and had to have surgery.  He then had to use a walker for a month thereafter.  He then suffered from pain and neuropathy in this foot.

The Kern County District Attorney’s office charged Tirado with attempted murder, second degree robbery, participation in a criminal street gang, carrying a loaded firearm while participating in a criminal street gang, assault with a semiautomatic firearm and misdemeanor driving under the influence.  The Penal Code § 12022.53(d) enhancement was added to the attempted murder and robbery counts.

A jury convicted Tirado of second degree robbery, assault with a semiautomatic firearm and driving under the influence.  It also found true the 12022.53(d) firearm use enhancement.

Before sentencing, Tirado moved under Penal Code § 12022.53(h) to strike the firearm use enhancement under 12022.53(d).  He argued the interests of justice would not be served by imposing the 25 years-to-life sentence under 12022.53(d).  The judge denied the motion.

In sentencing Tirado, the judge imposed three years for the robbery and 25 years-to-life for the 12022.53(d) enhancement.

 

Tirado appealed, asserting the trial court abused its discretion because it was unaware of its full set of options under 12022.53(h).  According to Tirado, the judge believed it had only two choices: strike the enhancement or impose the 12022.53(d) enhancement.

The Fifth Circuit affirmed the trial court, however, the California Supreme Court reversed, holding that when a court acts while unaware of the scope of its discretion, it is understood to have abused that discretion.  People v. Carmony (2004) 33 Cal. 4th 367, 378. 

Therefore, the Supreme Court remanded the case back to the Court of Appeal for reviewing a separate issue and then possible resentencing.

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