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Name: People v. Fialho
Case #: H038119
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 09/23/2014

Trial court properly imposed uncharged “lesser included” enhancement (Pen. Code, § 12022.5, subd. (a)) because enhancement alleged in the information (Pen. Code, § 12022.53, subd. (d)), and found true by the jury, did not apply to voluntary manslaughter. Fialho was charged with murder, attempted murder, and additional offenses. It was also alleged that he personally and intentionally discharged a firearm and caused death and great bodily injury. (Pen. Code, § 12022.53, subd. (d).) The jury convicted him of voluntary manslaughter and attempted voluntary manslaughter, and found true the section 12022.53, subdivision (d) allegation. At sentencing, the trial court explained that section 12022.53, subdivision (d) does not apply to manslaughter or attempted manslaughter, and instead imposed enhancements for personal use of a firearm under section 12022.5, subdivision (a). On appeal, Fialho contended that the appellate court should vacate the jury’s findings on the section 12022.53, subdivision (d) allegation and strike the personal firearm use enhancements imposed pursuant to section 12022.5, subdivision (a) because the information did not allege a violation of that section and that allegation was not found true by the jury. Held: Affirmed. In People v. Strickland (1974) 11 Cal.3d 946, the California Supreme Court expressly allowed the substitution of a charged enhancement with an uncharged enhancement that “would be applicable in any case” where the charged enhancement applies. Further, appellate courts have approved the substitution of a charged enhancement with an uncharged “lesser included enhancement” if there is insufficient evidence for the greater enhancement. Penal Code section 1170.1 does not require the prosecution to reference specific statutes for enhancement allegations or to plead and prove all potentially applicable lesser included enhancements.