Page 1
S.C. Allows Borrowing of Firearm Sentencing Enhancement
Liu Says Judge Who Strikes Enhancement Specified in Penal Code §12022.53 May Apply Lesser Included Enhancement Authorized by Some Other Statute
By Kimber Cooley, Staff Writer
The California Supreme Court, resolving a split in authority, held yesterday that where a judge strikes one of the enhancements for firearm use set forth in Penal Code §12022.53, a lesser included uncharged enhancement may be applied even if it is found in some other statute.
Justice Goodwin H. Liu wrote the opinion for a unanimous court, reversing the judgment of Div. One of the Fourth District Court of Appeal which held—in an unpublished opinion written by Justice Cynthia Aaron—that the only available enhancements are ones found within same statutory framework as the stricken enhancement.
At issue before the court were the changes made to §12022.53 by Senate Bill 620, which was signed into law by then-Gov. Jerry Brown in October 2017. Sec. 12022.53 provides mandatory sentencing enhancements when a defendant is found to have personally used a firearm in the commission of certain specified crimes.
The bill amended §12022.53(h), effective Jan, 1, 2018, to provide:
“The 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.”
Liu acknowledged that the Legislature intended to impose substantially longer prison sentences by enacting the mandatory sentencing framework, but said:
“Two decades later, the Legislature reconsidered the wisdom behind its statutory enactment and changed course. Recognizing that ‘[l]onger sentences do not deter crime or protect public safety’ and that ‘research has found that these [firearm] enhancements cause problems,’ such as exacerbating racial disparities in imprisonment and greatly increasing the prison population, the Legislature passed Senate Bill 620.”
Interplay Between Subsections
Liu commented that the amendment authorized by Senate Bill 620 left unaltered subdivision (j) of §12022.53 which provides:
“When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other law, unless another enhancement provides for a greater penalty or a longer term of imprisonment.”
Liu opined that “[t]he issue presented here…centers on the relationship between subdivisions (h) and (j).”
In rejecting the argument relied upon by the Fourth District that the language of subsection (j) limits the court to only apply lesser included enhancements found within the §12022.53 framework, Liu wrote:
“Under the Court of Appeal’s view, the phrase that channels and limits the court’s imposition of punishment — ‘pursuant to this section rather than imposing punishment authorized under any other law’… — is dispositive of the question presented here. But the full sentence begins: ‘When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment for that enhancement....’ ”
He continued:
“In other words, subdivision (j) mandates imposition of punishment for a section 12022.53 enhancement that has been admitted or found true. It then specifies that the court must impose punishment for that enhancement ‘pursuant to this section rather than imposing punishment authorized under any other law’ unless another enhancement provides for a longer sentence.”
Modifying Language Inapplicable
In the case where a court has decided to strike or dismiss an enhancement, Liu reasoned that “section 12022.53, subdivision (j)’s requirement that ‘the court shall impose punishment for that enhancement’ cannot and does not apply.”
He declared:
“The modifying phrase ‘pursuant to this section rather than...under any other law’ has no applicability independent of the phrase ‘the court shall impose punishment for that enhancement’…and the latter phrase has no applicability when the court has elected to ‘strike or dismiss an enhancement otherwise required to be imposed by this section….”
Given the inapplicability of the modifying phrase when an enhancement is stricken, he said:
“We now hold that when a court has exercised its discretion under subdivision (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 section 12022.53.”
The justice found that this view comports with the legislative intent behind the amendment by providing courts with discretion to provide relief to a deserving defendant.
Tirado Decision
In the 2022 case of People v. Tirado, the Supreme Court held, in an opinion authored by Justice Carole A. Corrigan, that the discretion authorized by amended §12022.53(h) permits judges to not only strike an enhancement under the section, but also to impose a lesser included, uncharged enhancement found in elsewhere in §12022.53 when the facts supporting the lesser enhancement were alleged and found true.
Since the Tirado decision, Liu explained that appellate courts have divided on whether that discretion was limited to the other enhancements contained within §12022.53 or could include enhancements, such as those found in the less-severe Penal Code §12022.5.
The issue came before the court upon a petition by Weldon K. McDavid who was convicted by jury of conspiring with his lover, Diana Lovejoy, to murder Lovejoy’s ex-husband, Greg Mulvihill. McDavid, a shooting instructor, lured Mulvihill to a secluded location and shot him.
Mulvihill survived but suffered severe injuries. In 2017, a jury convicted McDavid and Lovejoy of the conspiracy, and found true allegations that McDavid personally and intentionally discharged a firearm, causing great bodily injury under §12022.53(d).
San Diego Superior Court Judge Sim Von Kalinowski sentenced McDavid to 25 years to life for the conspiracy charge and to a consecutive 25 years to life sentence for the firearm allegation on Jan. 31, 2018.
After an appeal by McDavid, the Fourth District remanded for resentencing to consider the newly amended §12022.53(h) and Von Kalinowski declined to strike the enhancement. McDavid appealed a second time, and the Fourth District held, after a rehearing, that the trial court’s discretion is limited to the lesser included, uncharged enhancements found in §12022.53.
Justice William Dato dissented. He set forth a view consistent with that of the Supreme Court, writing:
“I would hold that on remand, if the court exercises its discretion to strike the enhancement charged and found true under section 12022.53, subdivision (d), it also retains the discretion to impose a lesser included enhancement under section 12022.5.”
The case is People v. McDavid, 2024 S.O.S. 1447.
Copyright 2024, Metropolitan News Company