section 12022.53(d) enhancement in California

2026In a second sentencing memorandum, defendant cited the California Supreme Court’s decision in People v. Tirado (2024) 12 Cal.5th 688 and urged the court to exercise its discretion to strike or stay the 25 years to life enhancement under section 12022.53, subdivision (d) or, alternatively, impose a lesser charged enhancement.

2026We observed that the way the enhancement was imposed was problematic but concluded that imposition of the enhancement was not unauthorized, explaining, “the information alleged that Bivens ‘personally and intentionally discharged a firearm which proximately caused great bodily injury or death to Matthew Parker within the meaning of Penal Code section 12022.53[, subd. ](d).’ ” (Bivens I, supra, F079200, at p. 25.) This charging language referred to facts necessary to prove enhancements under subdivisions (b) and (c) of section 12022.53, and “ ‘the jury’s findings established that these same fac

2026(People v. Flores, supra, at p. 432, citing People v. McDaniels (2018) 22 Cal.App.5th 420, 425 ; accord, People v. Jefferson (2019) 38 Cal.App.5th 399, 409 ; People v. Allison (2019) 39 Cal.App.5th 688 , 705-706.) At the time of Lopez’s sentencing the law was clear about what would happen when a “jury had also returned true findings of the lesser enhancements under section 12022.53, subdivisions (b) and (c).” (People v. Morrison (2019) 34 Cal.App.5th 217, 222 .) In such a case, the decision to strike an enhancement under section 12022.53, subdivision (d) “would leave intact the remaining findi

2026(People v. Flores, supra, at p. 432, citing People v. McDaniels (2018) 22 Cal.App.5th 420, 425 ; accord, People v. Jefferson (2019) 38 Cal.App.5th 399, 409 ; People v. Allison (2019) 39 Cal.App.5th 688 , 705-706.) At the time of Lopez’s sentencing the law was clear about what would happen when a “jury had also returned true findings of the lesser enhancements under section 12022.53, subdivisions (b) and (c).” (People v. Morrison (2019) 34 Cal.App.5th 217, 222 .) In such a case, the decision to strike an enhancement under section 12022.53, subdivision (d) “would leave intact the remaining findi

2026(People v. Gonzalez (2008) 43 Cal.4th 1118 , 1129-1130 [after imposing the enhancement with the longest term, any remaining firearm enhancements found true are “imposed and then stayed”].) DISPOSITION We remand with directions for the clerk of the superior court to amend the abstract of judgment to reflect that the 10-year term for the section 12022.53, subdivision (b) enhancement is stayed, resulting in a total term of 20 years for the firearm enhancements.

2026(See People v. Gonzalez (2008) 43 Cal.4th 1118 , 1122-1123 [“after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of 5 Wallace argues “the following [mitigating circumstances] existed: multiple enhancements were alleged in the case, imposing the enhancements contributed to a total sentence of well over . . . 20 years . . . , the alleged prior murder occurred when he was 17 years old, and the current offenses could arguably be connected to mental illness, prior victimization or childhood trauma.” 14 imprisonment, the remaining section 12022.5

2023(See Harden, supra, 81 Cal.App.5th at pp. 55-56 [“the jury’s true finding that [the defendant] personally inflicted great bodily injury necessarily means it determined [the defendant] strangled [the victim]”]; but see People v. Offley (2020) 48 Cal.App.5th 588 , 598 [enhancement under section 12022.53, subd. (d) does not show 9 We conclude the trial court erred in denying defendant’s section 1172.6 petition without issuing an order to show cause and conducting an evidentiary hearing.

2023(See Harden, supra, 81 Cal.App.5th at pp. 55-56 [“the jury’s true finding that [the defendant] personally inflicted great bodily injury necessarily means it determined [the defendant] strangled [the victim]”]; but see People v. Offley (2020) 48 Cal.App.5th 588 , 598 [enhancement under section 12022.53, subd. (d) does not show 9 We conclude the trial court erred in denying defendant’s section 1172.6 petition without issuing an order to show cause and conducting an evidentiary hearing.

2026He points to misdemeanor dissuading a witness from testifying (§ 136.1) and extortion (§ 519), both of which, he contends, if done to benefit a criminal street gang, are punishable by a life term under section 186.22; and also points to the so-called “wobblers” of firing a gun from a car (§ 26100, subd. (d)) and firing at an imposed . . . in addition to’ an enhancement under Penal Code section 12022.53 for firearm use unless the defendant ‘personally used or personally discharged a firearm in the commission of the offense.’ ” (Brookfield, supra, 47 Cal.4th at p. 586 , italics omitted.) 34 inha

2025(People v. Brookfield (2009) 47 Cal.4th 583, 590 .) The vicarious liability enhancement under section 12022.53(e) applies only if the defendant committed an enumerated felony for gang purposes and the principal in the offense committed the felony used or discharged a firearm. (§ 12022.53(e).) But if the defendant did not personally discharge a firearm, “[t]hey are subject to additional punishment under either section 12022.53 or the gang-related sentence increases under section 186.22, but not both.” (Brookfield, at pp. 593-594.) Here, the People agree “the court did not find that [Vasquez] pe

2026Senate Bill No. 620 Section 12022.53 provides a 10-year sentence enhancement for the personal use of a firearm during the commission of certain offenses. (§ 12022.53, subd. (b).) Section 12022.53 enhancements were previously mandatory, however, on January 1, 2018, Senate Bill No. 620 added section 12022.53, subdivision (h), which gave the trial court discretion “in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section.” (§ 12022.53, subd. (h); see People v. Pearson (2019) 38 Cal.App

2025(See Walker, supra, 16 Cal.5th at p. 1033; Garcia, supra, 101 Cal.App.5th at pp. 857- 858; Pearson, supra, 38 Cal.App.5th at p. 117 .) After weighing the aggravating and mitigating factors under section 1385, subdivision (c), the court concluded that dismissing Reddix’s section 12022.53 enhancement would not be in the furtherance of justice.

2022(People v. Morrison (2019) 7 34 Cal.App.5th 217, 222 [court has discretion] (Morrison); but see People v. Tirado (2019) 38 Cal.App.5th 637, 644 (Tirado I) [court does not have discretion], review granted Nov. 13, 2019, S257658.) In People v. Tirado (2022) 12 Cal.5th 688 (Tirado II),2 our Supreme Court resolved the issue.

2021(Morrison, at pp. 222-223; but see People v. Tirado (2019) 38 Cal.App.5th 637 , 642-645, review granted Nov. 13, 2019, S257658.) Because the record did not reflect that the trial court understood that it could impose a lesser enhancement, the Morrison court remanded the case for resentencing.

2026(People v. Allen, at pp. 626-627.) In People v. Fialho (2014) 229 Cal.App.4th 1389 , the jury found true a section 12022.53, subdivision (d) enhancement.

2024(Johnson, supra, 83 Cal.App.5th at pp. 1080, 1086-1093, rev. granted; Fuller, supra, 83 Cal.App.5th at pp. 400-403, rev. granted; see People v. Fialho (2014) 229 Cal.App.4th 1389, 1398-1399 [trial court did 8 not err by imposing § 12022.5. subd. (a) enhancement after determining § 12022.53, subd. (d) enhancement did not apply].) In this case, the trial court was not asked to consider imposing a lesser firearm enhancement under section 12022.5, subdivision (a), and there is nothing in the record to suggest the court was aware it had the discretion to impose a lesser uncharged enhancement.

2024(People v. Gomez, supra, F082873.) Defendant argued that, in addition to the reversal of gang enhancements, we should reverse the firearm enhancements as to counts 2 and 3, imposed under section 12022.53, subdivision (c), relying on People v. Lopez (2021) 73 Cal.App.5th 327 (vacating a § 12022.53, subd. (e) firearm enhancement because also vacated gang enhancement).

2023(People v. Lopez (2021) 73 Cal.App.5th 327 , 346, 348 (Lopez).) “Section 12022.53 provides for sentence enhancements for the use of firearms in the commission of an enumerated felony.” (Id. at p. 347.) As relevant here, subdivision (d) of the statute adds a 25-year-to-life enhancement for a person who “personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death” during the commission of an enumerated offense. (§ 12022.53, subd. (a).) Subdivision (e)(1) of the statute “imposes vicarious liability” on someone who aids and abets the enumerated offen

2026(People v. Flores, supra, at p. 432, citing People v. McDaniels (2018) 22 Cal.App.5th 420, 425 ; accord, People v. Jefferson (2019) 38 Cal.App.5th 399, 409 ; People v. Allison (2019) 39 Cal.App.5th 688 , 705-706.) At the time of Lopez’s sentencing the law was clear about what would happen when a “jury had also returned true findings of the lesser enhancements under section 12022.53, subdivisions (b) and (c).” (People v. Morrison (2019) 34 Cal.App.5th 217, 222 .) In such a case, the decision to strike an enhancement under section 12022.53, subdivision (d) “would leave intact the remaining findi

2024(People v. Salazar (2023) 15 Cal.5th 416, 425 , 431-432, citing McDaniels, supra, 22 Cal.App.5th at p. 426 .) When the law has changed, our high court cautioned, “it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers.” (Salazar, at p. 431.) 17 Here, the People try to show a clear indication the trial court would not in any circumstances have stricken the section 12022.53(d) enhancement, but they fall short.

2026(People v. McDavid (2024) 15 Cal.5th 1015 , 1020–1021, 1030 [trial court has discretion to strike enhancement and impose lesser included § 12022.53 enhancement or other lesser included enhancement].) As further indication of prejudice, we note the prosecutor capitalized on the CDCR’s delay in providing documents by arguing, “[T]here is nothing before this court to give 9 consideration to reducing or striking” the enhancement.

2026(People v. McDavid (2024) 15 Cal.5th 1015 , 1020–1021, 1030 [trial court has discretion to strike enhancement and impose lesser included § 12022.53 enhancement or other lesser included enhancement].) As further indication of prejudice, we note the prosecutor capitalized on the CDCR’s delay in providing documents by arguing, “[T]here is nothing before this court to give 9 consideration to reducing or striking” the enhancement.

2026(People v. Tirado, supra, 12 Cal.5th at p. 700 [when the trier of fact finds “true the facts supporting a section 12022.53(d) enhancement, and the court determines that the section 12022.53(d) enhancement should be struck or dismissed under section 12022.53(h), the court may, under section 12022.53(j), impose an enhancement under section 12022.53(b) or (c)”]; People v. Gutierrez (2014) 58 Cal.4th 1354, 1390 [“Absent evidence to the contrary, we presume that the trial court knew and applied the governing law”].) In addition, the court’s extended analysis discussed above, balancing the trauma su

2025(See People v. Gutierrez, supra, 58 Cal.4th at p. 1390 .) To conclude, appellant fails to show the trial court applied an incorrect legal standard in finding dismissal of the section 12022.53(d) enhancement would endanger public safety.

2025(People v. Palacios (2007) 41 Cal.4th 720 , 726–727; People v. Oates (2004) 32 Cal.4th 1048, 1055 .) Here, once the jury found that, as to count 1, Carrera personally and intentionally discharged a firearm causing Zuniga’s death, it also made the necessary factual findings for a section 12022.53, subdivision (d) enhancement as to counts 2, 3, and 4, since Carrera simultaneously committed the offenses in those counts when he fired the single shot that killed Zuniga.

2024(Id. at pp. 1052–1053.) Oates explained that the 25-year section 12022.53, subdivision (d) firearm enhancement applied by its own terms to “ ‘any person’ who, ‘in the commission of’ a specified felony, ‘personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice.’ (Italics added.)” (Oates, supra, 32 Cal.4th at p. 1055 .) 19 “Had the Legislature wanted to limit the number of subdivision (d) enhancements imposed to the number of injuries inflicted, or had it not wanted subdivision (d) to serve as the enhancem

2026DISCUSSION A. Assembly Bill 333 Section 186.22, subdivision (b)(1), is a gang enhancement, mandating additional punishment for “a person who is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members[.]” Firearm enhancements under section 12022.53, subdivisions (b), (c), and (d), can apply vicariously to an aider and abettor when the prosecution pleads and proves that the defendant violated section 186.22, subdivision (b). (§ 12022.53, subd

2023One Strike terms . . . and use the circumstance of gun use to secure additional enhancements under section 12022.5[, subdivision ](a).” (Mancebo, at p. 745.) In Anderson, supra, 9 Cal.5th 946 , the Supreme Court reversed firearm enhancements imposed “in connection with counts as to which [they] had not 23 been alleged.” (Id. at p. 950.) In doing so, Anderson extended Mancebo’s reasoning to firearm enhancements under section 12022.53, which have similar statutory pleading requirements to those under the One Strike law.

2025(Jones, supra, 47 Cal.4th at p. 569 .) The issue in Jones was whether the defendant committed a “felony punishable by . . . imprisonment . . . for life” (§ 12022.53, subd. (a)(17)) for his offense, thus triggering application of a 20-year sentence enhancement under section 12022.53, subdivision (c).

2024(Cf. People v. Jones, supra, at p. 578 [§ 186.22, subd. (b)(4) sets forth alternate penalty of life imprisonment for § 246 violation committed to benefit a criminal street gang].) Thus, the court below should not have imposed a section 12022.53, subdivision (c) enhancement. 4 The Attorney General concedes this point. 17.

2025As explained above, the trial court reduced the determinate portion of Mr. Lopez’s sentence significantly and kept the indeterminate portion the same. 15 (Carmony, supra, 33 Cal.4th at pp. 376-377; People v. Thomas (2011) 52 Cal.4th 336, 361 .) We see no evidence in the record to suggest that the trial court’s decision not to reduce the section 12022.53(d) firearm enhancement was arbitrary, capricious, or patently absurd, so as to result in an abuse of discretion.

2025(People v. Carmony (2004) 33 Cal.4th 367, 378 .) Because of this, a court “necessarily abuses its discretion when it fails to exercise its discretion.” (People v. Choi (2021) 59 Cal.App.5th 753 , 766.) Here, because the trial court was unaware it retained discretion to impose the section 12022.53, subdivision (d) enhancement, its dismissal of that enhancement under the misapprehension it had no discretion to do otherwise constituted an abuse of discretion.

2023“Another statutory pleading provision, specific to section 12022.53 enhancements, restates the same basic point: For any of the firearm enhancements prescribed by section 12022.53 to apply, ‘the existence of any fact required [by the relevant provision] 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.’ [Citations.]” (Anderson, at p. 953, quoting § 12022.53, subd. (j); see People v. Garcia, supra, 28 Cal.4th at p. 1175 [describing § 12022.53, subd. (j), as “simply a restatement of section 1170.1, subdivision

2022Additionally, section 12022.53, subdivision (e)(1) “imposes vicarious liability under this section on aiders and abettors who commit crimes in participation of a criminal street gang.” (People v. Garcia (2002) 28 Cal.4th 1166, 1171 .) Thus, vicarious liability may be imposed if the defendant “violated subdivision (b) of Section 186.22” and “[a]ny principal in the offense 39 committed any act specified in [section 12022.53,] subdivision (b), (c), or (d).” (§ 12022.53, subd. (e)(1); see also § 31 [defining “principal” to include both a direct perpetrator and an aider and abettor].) For all defen

2025(See People v. Mazur (2023) 97 Cal.App.5th 438 , 445; People v. Cota (2023) 97 Cal.App.5th 318 , 337; People v. Renteria (2023) 96 Cal.App.5th 1276 , 1289-1290; People v. Mendoza (2023) 88 Cal.App.5th 287 , 294; People v. Lipscomb (2022) 87 Cal.App.5th 9 , 18; see also Walker, supra, 16 Cal.5th at p. 1035, fn. 5 [declining to decide whether “shall be dismissed” in another mitigating factor (multiple enhancements under subdivision (c)(2)(B)) deprived the trial court of its discretion to impose an enhancement under section 12022.53, subdivision (b)].) Indeed, “trial courts retain their discretio

2024There, the trial court had declined to dismiss a 18 section 12022.53, subdivision (d) enhancement—which resulted in imposition of an additional term of 25 years to life—based on a finding that dismissal “‘would result in physical injury or serious danger to others.’” (Lipscomb, supra, 87 Cal.App.5th at p. 13.) The defendant asserted the dismissal was mandatory based on the “‘shall be dismissed’” language in section 1385, subdivision (c)(2)(C), but, as in Walker, the appellate court concluded subdivision (c)(2)(C) did not compel dismissal in all cases.

2022The court pointed to case law recognizing that a court “may impose a ‘lesser included’ enhancement that was not charged in the information when a greater enhancement found true by the trier of fact is either legally inapplicable or unsupported by sufficient evidence.” (Morrison, at p. 222, citing People v. Strickland (1974) 11 Cal.3d 946 (Strickland), People v. Fialho (2014) 229 Cal.App.4th 1389 (Fialho), People v. Dixon (2007) 153 Cal.App.4th 985 (Dixon), People v. Lucas (1997) 55 Cal.App.4th 721 (Lucas), People v. Allen (1985) 165 Cal.App.3d 616 (Allen).) Extending the principle of those aut

2022We reasoned that the power to dismiss or strike did not necessarily include a broad discretion to impose a lesser enhancement, noting that nothing in the language of section 1385, nor in the cases interpreting the trial court’s discretionary authority, refers to a court’s discretion to impose a lesser enhancement, except “when a greater enhancement found true by the trier of fact is either legally inapplicable or unsupported by sufficient evidence.” (People v. Fialho (2014) 229 Cal.App.4th 1389, 1395-1396 [§ 12022.53 enhancement precluded by conviction of offense not listed in § 12022.53, subd

2026(People v. McDavid (2024) 15 Cal.5th 1015 , 1021,1030); see People v. Fuller (2022) 83 Cal.App.5th 394 , 397 [‘under Tirado, the sentencing court may impose an uncharged lesser included 1 All statutory references are to the Penal Code. 2 enhancement under section 12022.5 after striking a greater enhancement under section 12022.53’].)” We remanded the matter to the trial court for full resentencing.

2025(People v. McDavid (2024) 15 Cal.5th 1015 , 1021,1030); see People v. Fuller (2022) 83 Cal.App.5th 394 , 397 [“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”].) The parties agree, as do we, that the colloquy between the court and defense counsel we have quoted above shows the trial court was not aware of its discretion to impose a lesser gun enhancement under the section 12022.5 enhancement instead.4 On this record, we cannot say the trial court would have imposed the same

2021(People v. Monjaras (2008) 164 Cal.App.4th 1432 , 1437–1438 [when defendant uses object that looks like a gun in committing robbery, object’s appearance and defendant’s conduct may provide sufficient evidence to support finding it was a firearm under section 12022.53].) C Moore next repeats his contention at trial that his statements to the police were unreliable because he was under the influence of methamphetamine.

2021(Monjaras, supra, 164 Cal.App.4th at p. 1436 .) “[W]hen as here a defendant commits a robbery by displaying an object that looks like a gun, the object’s appearance and the defendant’s conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm within the meaning of section 12022.53, subdivision (b).

2026In conformance with this court’s directive, the trial court first determined that, “the fact that if the defendant should 2 one day become parole eligible, both his age at that point and the necessity of his release being tied to the parole board’s independent finding that he no longer presents a danger to the community, prevents this Court from finding that dismissal of the Penal Code section 12022.53 enhancements would endanger public safety.” The trial court continued that, “[t]he same, however, cannot be said when the dismissal of those enhancements is viewed through the lens of the intere

2026Defendant also argues that section 1385, subdivision (c)(2)(C) applies because the application of the 58. enhancement under section 12022.53, subdivision (b) could result in a sentence of over 20 years.31 Section 1385, subdivision (c) requires the trial court to consider the interests of justice by assigning significant value to the enumerated mitigating circumstances when they are present, unless the court finds substantial, credible evidence of countervailing factors that “ ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancemen

2025(People v. Scott (1994) 9 Cal.4th 331, 354 .) 6 Similarly, the court could not strike the section 12022.53 enhancement and impose a lesser 10-year enhancement under section 12022.5, subdivision (a) because that section does not apply if the firearm use is an element of the underlying offense.

2024(See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [stating with respect to sentencing under section 1170.1, “[t]he petition may also be summarily denied if the record reflects that the sentencing court clearly indicated that it would not have exercised discretion to sentence . . . even if it had been aware that it had such discretion”]; see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13 .) We assume that if the trial court declined to impose a 10- or 20-year firearm enhancement under section 12022.53, subdivision (b) or (c), it would not have exercised its di

2025(Former § 12022.5, subd. (a)(1); §§ 12022.53, subd. (d), 12022.55.) He admitted a prior strike conviction for voluntary manslaughter. 1 People v. Franklin (2016) 63 Cal.4th 261 (Franklin). 2 The court sentenced defendant to LWOP on the special circumstances murder conviction (§§ 190, subd. (a)), 190.2, subd. (a)), doubled under the “Three Strikes” law to two LWOP terms (former § 1170.12, subd. (c)(1); former § 667, subd. (e)(1)), plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), and five years for a prior serious felony conviction under section 667, sub

2022We therefore vacate the gang enhancement findings under section 186.22, subdivision (b), and the gang firearm enhancement finding under section 12022.53, subdivision (e)(1) under counts 1, 2, and 4; remand for the People to elect to retry those allegations under 5 People v. Franklin (2016) 63 Cal.4th 261 (Franklin). 4 Assembly Bill 333; and direct the trial court to correct Escalante’s presentence custody credits.

2025(People v. Palacios (2007) 41 Cal.4th 720 , 726–727; People v. Oates (2004) 32 Cal.4th 1048, 1055 .) Here, once the jury found that, as to count 1, Carrera personally and intentionally discharged a firearm causing Zuniga’s death, it also made the necessary factual findings for a section 12022.53, subdivision (d) enhancement as to counts 2, 3, and 4, since Carrera simultaneously committed the offenses in those counts when he fired the single shot that killed Zuniga.

2022Jan. 1, 2022.) The People correctly respond, “The sentence on a lesser enhancement that was alleged and found true is stayed not by section 654 but by section 12022.53 itself.” “[T]he sentence enhancement provisions of Penal Code section 12022.53 are not limited by the multiple punishment prohibition of Penal Code section 654,” and “in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654.” (People v. Palacios (2007) 41 Cal.4th 720, 723 , 727–728.) Section 12022.53, subdivisions (b)–(d) mandate that their enhancements be

2022(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)

2022(See People v. Allen (1985) 165 Cal.App.3d 616, 627 [every use of a gun within the meaning of section 12022.53 necessarily includes a violation of section 12022.5, subdivision (a)].) In People v. Strickland (1974) 11 Cal. 3d 946 , the defendant was charged with murder but convicted of voluntary manslaughter.