The recent amendment to Penal Code section 12022.53 that permits a judge to strike or dismiss a firearm enhancement does not apply retroactively to an insanity acquittee whose judgment was not final on its effective date. After being charged with the murder of his father, K.P. pleaded not guilty by reason of insanity. A jury found him guilty of second degree murder and found true an allegation that he personally used a firearm causing death (Pen. Code, 12022.53, subd. (d)). The jury also determined he was insane at the time he committed the offense. The trial court committed K.P. to a state hospital, with a maximum term of confinement of 40 years to life, which included a 25-years-to-life term for the firearm enhancement. On appeal K.P. argued that an amendment to section 12022.53 applied retroactively in his case. Held: Affirmed. At the time of K.P.’s sentencing hearing, the former version of section 12022.53 required the trial court to impose a consecutive enhancement of 25 years to life for the firearm enhancement. While K.P.’s appeal was pending, SB 620 amended section 12022.53 to provide that a trial “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.” Here, the Court of Appeal concluded that amended section 12022.53 does not apply to insanity acquittees. Section 12022.53 applies at the time of sentencing and an insanity acquittee is not sentenced; he or she is committed to a state hospital for treatment. Additionally, six months before enacting amended section 12022.53, the Legislature expressly extended the benefits of Propositions 36 and 47 to insanity acquittees. “Accordingly, if the Legislature had wanted to extend the relief under amended section 12022.53 to insanity acquittees, it knew how to do so.” [Editor’s Note: In a footnote, the court also noted that, under Penal Code section 1026.5, subdivision (a)(1), the trial court is required to impose the ” ‘maximum term of commitment’ ” which includes “any additional terms for enhancements . . . which could have been imposed.” The trial court must impose the additional terms for any firearm enhancements. Thus, even assuming that the discretion given to trial courts by amended section 12022.53 could apply to insanity acquittees, section 1026.5, subdivision (a)(1) takes that discretion away.]

Construing amended section 12022.53 to exclude insanity acquittees does not violate equal protection. K.P. also argued that, if amended section 12022.53 is construed to exclude insanity acquittees, the statute violates equal protection. The Court of Appeal disagreed. The court assumed, without deciding, that insanity acquittees and criminal defendants convicted of the same crime and subjected to the same firearm enhancement are similarly situated. However, applying the rational basis standard, the court also concluded that a rational basis exists for the Legislature to exclude insanity acquittees from the ameliorative provisions of amended section 12022.53. “The Legislature could have concluded that, given the distinct purpose and structure of the insanity commitment scheme (as distinguished from the purpose of a prison term), striking or dismissing firearm enhancements for insanity acquittees would not further the purpose of insanity commitments and serve no practical purpose.” The purpose of commitment is treatment of mental illness and to protect the individual and society. Under the structure of the insanity commitment process, including the possibility of extensions beyond the declared maximum length of commitment, the stated potential length of the commitment is not related to the actual time that a defendant found not guilty by reason of insanity will remain confined for treatment. The insanity acquittee may be released sooner or, through the extensions process, remain hospitalized for life. [Editor’s Note: The California Supreme Court denied a petition for review in this case, but Justice Liu was of the opinion the petition should have been granted (case no. S253773).]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/D074577.PDF