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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…

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Name: People v. Hurt (2024) 98 Cal.App.5th 1241
Case #: C096740
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 01/22/2024

Where defendant committed two new offenses when she was released on bail after she committed two primary offenses, she is subject to only one on-bail enhancement under Penal Code section 12022.1. The prosecution originally charged defendant with two felony counts (counts 1 and 2) committed on August 12, 2021. Defendant posted bail and was released from custody. While on bail, she committed two new offenses (counts 4 and 5). She was convicted of all offenses after a jury trial. At sentencing, the trial court imposed two consecutive on-bail enhancements under section 12022.1, one on count 4 and one on count 5.…

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Name: People v. Farias (2023) 92 Cal.App.5th 619
Case #: C094195
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/26/2023
Subsequent History: Ordered published 6/14/2023

Considering changes to the law governing gang offenses, the trial court lacked substantial evidence to support its finding that defendant’s prior conviction under Penal Code section 186.22(a) was for a serious felony. Farias and Miranda were convicted of attempted murder and assault offenses after attacking and stabbing a fellow prison inmate. They appealed, raising multiple issues. Held: Remanded for resentencing and retrial of Miranda’s prior section 186.22(a) conviction. Miranda argued there was insufficient evidence that his 2009 prior conviction under section 186.22(a) was for a serious felony under current law, relying on People v. Rodriguez (2012) 55 Cal.4th 1125 and…

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Name: In re Ferrell (2023) 14 Cal.5th 593
Case #: S265798
Court: CA Supreme Court
Opinion Date: 04/06/2023

The jury’s true finding on a firearm enhancement (Pen. Code, § 12022.53, subd. (d)) did not render Chun error harmless beyond a reasonable doubt. Ferrell was convicted of the second degree murder of his fellow-gang member who was killed when Ferrell fired two shots at the end of a gang fight. The jury also found that Ferrell intentionally discharged a firearm and caused death in committing his offense (Pen. Code, § 12022.53, subd. (d)). At trial, the prosecutor’s presented three theories for murder: express malice, implied malice, or felony murder based on the willful discharge of a firearm in a…

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Name: People v. Morgan
Case #: D080016
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/20/2023

Trial court erred in concluding defendant’s driving under the influence (DUI) charges could be elevated to felonies where defendant had not suffered a qualifying sentence-enhancing prior conviction listed in Vehicle Code section 23550.5, subdivision (b). Under Vehicle Code section 23550.5, subdivision (b), a conviction for driving under the influence (DUI) in violation of Vehicle Code section 23152 is elevated from a misdemeanor to a felony if the defendant was previously convicted of violating specified provisions of the Penal Code, including gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). Here, defendant drove his motorcycle while intoxicated. The People…

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Name: People v. Mendoza
Case #: E078534
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/10/2023

Penal Code section 1385, as amended by Senate Bill No. 81, does not require the trial court to dismiss a 20-year firearm use enhancement where dismissal would endanger public safety. Pursuant to a letter from CDCR recommending resentencing due to errors in his original sentence, defendant was resentenced in 2022, after SB 81’s amendments to section 1385 became effective. The trial court resentenced defendant but declined to strike his section 12022.53, subdivision (c) firearm use enhancement, finding dismissal of the 20-year enhancement would result in an “inappropriately short” sentence and endanger public safety. On appeal, defendant argued dismissal of the…

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Name: People v. Anderson
Case #: B320627
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 02/07/2023

Under Penal Code section 1385, as amended by Senate Bill No. 81, a trial court is not required to dismiss all but one enhancement, nor an enhancement that could result in a sentence of more than 20 years, but rather retains discretion in deciding whether to do so. In 2009, appellant pleaded guilty to seven felony counts and was sentenced to 35 years to life under the three strikes law. In 2020, CDCR recommended resentencing, and the trial court dismissed one prior strike and resentenced Anderson to 23 years and four months. On appeal, Anderson contended the trial court erred…

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Name: People v. Jones
Case #: C087494
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/02/2021

Although victim did not see, hear, or feel defendant's gun, there was sufficient evidence to support personal gun use enhancement. Jones approached the victim (and her toddler grandchild) as she entered her car, gesturing as if he had a gun in pocket, and told her nothing would happen if she did what he said. He demanded her cell phone so she could not call the police and directed her to drive him around to various locations. He eventually took over driving and the victim actually saw the gun at this time. Later he parked the car and forced the victim…

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Name: People v. Anderson
Case #: S253227
Court: CA Supreme Court
District CalSup
Opinion Date: 07/23/2020

Opinion By: Justice Kruger (unanimous decision)
Trial court erred by imposing vicarious firearm use enhancements (Pen. Code, § 12022.53, subd. (e)) that were not pleaded in connection with the relevant counts. Anderson and fellow gang members went to a party. They were asked to leave. The group did depart, but returned with guns and began robbing the partygoers. One of Anderson's group shot and killed a man at the party. Anderson was convicted of first degree murder with a 25-year-to-life vicarious firearm discharge enhancement (Pen. Code, § 12022.53, subds. (d), (e)). He was also convicted of five robbery…

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Name: People v. Centeno
Case #: D073977
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/08/2019

Under Penal Code section 1203.06, a court cannot grant probation to someone who commits a robbery with a firearm even if the court had discretion to strike the firearm enhancement. Centeno entered a marijuana dispensary and, holding a gun, announced a robbery. He later escaped after being shot by an employee. Centeno pleaded guilty to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), robbery (Pen. Code, § 211), and possession of marijuana. As to counts one and two, he admitted personal use of a firearm (Pen. Code, § 12022.5, subd. (a)). The…

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