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Name: People v. McDavid (2024) 15 Cal.5th 1015
Case #: S275940
Court: CA Supreme Court
District CalSup
Opinion Date: 04/29/2024

After striking a PC 12022.53 enhancement in the interest of justice, a trial court has discretion to impose an uncharged, lesser included enhancement located elsewhere in the Penal Code. While PC 12022.53 applies to specified felonies involving the use of firearms, PC 12022 applies more broadly to personal use of a firearm during any felony, and PC 12022 casts an even wider net. In People v. Tirado (2022) 12 Cal.5th 688, the court held that PC 12022.53(h) gives the trial court discretion to, after striking a PC 12022.53 enhancement under PC 1385, impose a lesser included, uncharged PC 12022.53 enhancement when the facts supporting the lesser enhancement were alleged and found true by the jury. Here, the People argued that after striking a PC 12022.53 enhancement, a court may not impose an uncharged, lesser included enhancement other than a PC 12022.53 enhancement, because the second sentence of PC 12022.53(j) provides that when a PC 12022.53 enhancement has been found true, the court shall impose punishment for that enhancement pursuant to section 12022.53 rather than imposing punishment authorized under any other law, unless another enhancement provides for a greater penalty or longer term of imprisonment. The court disagreed. When a court has exercised its discretion under PC 12022.53(h) to strike a section 12022.53 enhancement and finds that no other section 12022.53 enhancement is appropriate, the second sentence of subdivision (j) is inapplicable and does not bar the court from imposing a lesser included, uncharged enhancement under a law other than PC 12022.53. The court thus has discretion to impose such an enhancement if it is supported by facts that have been alleged and found true. The court disapproved People v. Lewis (2022) 86 Cal.App.5th 34, which reached a contrary conclusion.

The full opinion is available on the court’s website here: