Under Penal Code section 1385, trial court had discretion to impose a lesser included firearm enhancement instead of the greater enhancement (Pen. Code, § 12022.53, subd. (d)), even though the lesser enhancement was not alleged. Morrison was convicted of first degree murder, and a firearm enhancement (Pen. Code, § 12022.53, subd. (d)) was found true. The jury was not instructed on lesser included firearm enhancements (Pen. Code, § 12022.53, subds. (b), (c)). Morrison’s sentence included 25 years to life for the firearm enhancement. After Senate Bill No. 620 went into effect, the trial court denied a request to strike the firearm enhancement. On appeal, Morrison argued the matter should be remanded for resentencing because the trial court did not understand the scope of its discretion to modify the firearm enhancement to a lesser included enhancement. Holding: Remanded for resentencing. Section 12022.53 sets out three enhancements for the personal use of a firearm in the commission of enumerated offenses: subdivision (b) provides for a 10-year enhancement for use; subdivision (c) provides for a 20-year enhancement for discharge; and subdivision (d) provides for a 25-year-to-life enhancement for discharge causing great bodily injury or death. SB 620 amended section 12022.53, subdivision (h) to give the trial court discretion to strike or dismiss the section 12022.53 enhancements in the interest of justice pursuant to section 1385. Case law has recognized that the 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. Relying on this case law, the Court of Appeal concluded that the trial “court had the discretion to impose an enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d), if such an outcome was found to be in the interests of justice under section 1385.”

The case was remanded for resentencing because the record did not reflect whether the trial court understood that it could impose a lesser enhancement under section 12022.53, subdivision (b) or (c) instead. The Attorney General argued that a remand would be futile because it was clear from the court’s comments it would not exercise its discretion even if it had the power to do so. The Court of Appeal disagreed. Although the trial court stated adequate reasons for declining to strike the lifetime enhancement under section 12022.53, subdivision (d), the record did not reflect whether it understood that it could impose a lesser enhancement under section 12022.53, subdivision (b) or (c) instead. At the time the trial court considered striking the firearm enhancement, “no published case had held an uncharged lesser firearm enhancement could be imposed in lieu of an enhancement under section 12022.53, subdivision (d) in connection with striking the greater enhancement. The amendment to section 12022.53 was new, and because it does not appear the court considered the issue now raised,” the court remanded for resentencing. After the publication of this decision, “the usual presumption that a sentencing court correctly applied the law will apply and will ordinarily prevent remand where the record is silent as to the scope of a court’s discretion.” (See People v. Fuhrman (1997) 16 Cal.4th 930, 945.) [Editor’s Note: In a more recent decision, People v. Tirado (2019) 38 Cal.App.5th 637, the Fifth District disagreed with Morrison.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A154092.PDF