Senate Bill 620 Resentencing under People v Tirado

In 2017, in San Diego County Superior Court, a jury found defendant Weldon K. McDavid, Jr., guilty of conspiracy to commit murder (Penal Code §§ 182(a)(1), 187(a)) and premeditated attempted murder (Penal Code §§ 664, 187(a)). 

The jury also found true allegations that in committing each of those offenses, McDavid intentionally and personally discharged a firearm, causing great bodily injury (Penal Code § 12022.53(d)) and personally inflicted great bodily injury on the victim (Penal Code § 12022.7(a)).

The factual background for the case was that McDavid was dating a woman named Ms. Lovejoy, who was divorced and being allegedly harassed by her ex-husband.  Ms. Lovejoy recruited McDavid and persuaded him to murder her estranged ex-husband.  McDavid was a former military serviceman who had no prior criminal history.

On January 31, 2018, the trial court judge sentenced McDavid to an indeterminate term of 25 years to life on the conspiracy to commit murder count and a consecutive term of 25 years to life for the related 12022.53(d) enhancement for a total term of 50 years to life in prison.  The court also imposed, but pursuant to section 654 stayed execution of, an indeterminate term of 25 years to life on count 2 for premeditated attempted murder, a consecutive indeterminate term of 25 years to life for the related 12022.53(d) term and a three-year term for the related 12022.7(a) enhancement.  In other words, the 12022.53(d) enhancement was imposed on both counts.

McDavid appealed to the Fourth Appellate District, contending, among other things, that the judge was unaware it had discretion (and thereby abused its discretion) under Senate Bill (SB) 620, effective 30 days earlier on January 1, 2018, to strike the 12022.53(d) enhancements, or in the alternative, impose lesser included enhancements in lieu of the greater 12022.53(d) enhancement.  People v. Morrison (2019) 34 Cal. App. 5th 217, 222-223.

As the reader of this article may already be aware, SB 620 amended § 12022.53(h) to permit the striking of a firearm enhancement, whereas under the former version, imposition of the section 12022.53 enhancement was mandatory. 

The Fourth Appellate District agreed with McDavid and vacated his sentence and remanded the matter for resentencing for the limited purpose of allowing the trial court to exercise its discretion as to whether to strike the section 12022.53(d) enhancements.

On April 30, 2021, the trial court conducted a resentencing hearing on remand and declined to strike the 12022.53(d) enhancements and reimposed its original sentence, except for a reduction in the restitution amounts from $10,000 to $1,800.

McDavid filed a timely notice of appeal, challenging the resentencing judgment. 

On January 31, 2022, the Fourth Appellate District sent a letter to the parties requesting that they submit supplemental briefs addressing the effect on this appeal of the opinion recently issued by the California Supreme Court in People v. Tirado (2022) 12 Cal. 5th 688. 

In Tirado, the California Supreme Court noted that the Courts of Appeal within California had split on whether SB 620, in amending 12022.53, permitted a judge the discretion to strike a greater 12022.53 enhancement and impose a lesser, uncharged 12022.53 enhancement instead.  Some courts agreed with Morrison, supra, and some did not.

The Tirado court resolved this disagreement by holding that a court did have such discretion where the facts supporting the lesser enhancement were alleged in the information and found true by the jury.

McDavid, however, argued even more, arguing that a court could, in its discretion, could in its discretion impose a lesser included, uncharged enhancement not even within 12022.53, i.e., more than just 12022.53(b) or 12022.53(c).

The California Supreme Court agreed with McDavid, stating that under the reasoning of Tirado, the trial court did have the discretion to strike the 12022.53(d) and impose an uncharged, lesser enhancement if the facts supporting such an enhancement were alleged in the information and found true by the jury.

We present this summary to the reader because McDavid broadened SB 620 well beyond what we believe was intended by our legislature.

For more information about resentencing on the firearm enhancement under Senate Bill 620, please click on the following articles: