Senate Bill 620 Discretion and Penal Code § 12022.5

In 2018, Senate Bill (SB) 620 was passed, amending Penal Code § 12022.5 and 12022.53, granting trial court judges new and broad discretion under Penal Code § 1385 to strike or dismiss certain firearm enhancements.

As is not uncommon with new laws, particularly in sentencing, a judge may attempt to apply this new, broader discretion in applying the new law, but make statements that show he or she did not know how the new law applied, which is regarded as “an abuse of discretion.” A sentence then can be appealed for “an abuse of discretion” in this context, although one may typically associate an abuse of discretion with a judge making an irrational, factually unsupported sentence or decision.

One of these sentences appealed was in People v. Tirado (2022) 12 Cal. 5th 688, wherein the California Supreme Court held that although SB 620 only spoke in terms of striking or dismissing a firearm enhancement, trial court judges also had discretion to impose uncharged lesser § 12022.53 enhancements after striking or dismissing the greater enhancement.

This interpretation appeared to leave unresolved an apparent conflict with other unamended statutory provisions that require imposition of the harshest available punishment such as, for example, Penal Code § 12022.53(f), requiring the court to impose “the enhancement that provides the longest term of imprisonment,” while limiting sentencing to enhancements contained within the same statute unless the other statute provided for harsher consequences (Penal Code § 12022.53(j) (requiring the court to impose punishment for the 12022.53 enhancement “rather than imposing punishment authorized under any other” statute unless the other enhancement provides for a more severe penalty or longer prison term)).

This unresolved issue was recently (October 4, 2022) addressed in the case of Frederick Lamar Johnson. In 2002, Mr. Johnson pleaded no contest in two cases involving multiple armed robberies in Sacramento County and admitted seven firearm enhancements under Penal Code § 12022.53(b). He was then sentenced to 46 years and four months in state prison.

At the resentencing hearing, the trial court judge in Sacramento County acknowledged it had discretion under SB 620 to strike one or more of the seven firearm enhancements, the judge declined to strike any, commenting that each enhancement was “inextricably entwined” with each of the robberies and assaults. The judge was not asked to consider imposing lesser enhancements in lieu of the enhancements of conviction.

Mr. Johnson then appealed to the Third Appellate District, arguing that the failure of the judge to consider imposing a lesser, uncharged enhancement (apparently because he was unaware of this discretion) under Penal Code § 12022.53 or Penal Code § 12022.5 was an abuse of discretion under People v. Tirado, supra, and therefore, his case should be remanded again for resentencing to exercise “informed discretion.”

The People argued that Penal Code § 12022.53(j) prohibited the trial court from imposing an uncharged section 12022.5(a) enhancement and that Tirado did not dictate a contrary conclusion.

While this case was pending, the Fourth Appellate District decided People v. Fuller (2022) ____ Cal. App. 5th _____ (2002 Cal. App. Lexis 787), which concluded that “under Tirado, the sentencing court may impose an uncharged lesser included enhancement under 12022.5 after striking a greater enhancement under 12022.53.”

The Third Appellate District agreed with Fuller and remanded Mr. Johnson’s case for further resentencing. It reasoned that as long as the factual basis for an enhancement was pleaded and either admitted or found true, the factual findings underlying an enhancement may be used to support imposing a lesser uncharged enhancement. This is because the factual findings survive even when the enhancement is stricken, thereby supporting imposition of the lesser enhancement.

We present this summary with an expectation (as is so often the case) that the trial court may again refuse to disturb the sentence, but will be careful to lay a record that it considered imposing uncharged, lesser enhancements, but declines to do so.

For more information about Senate Bill 620 and discretion under Tirado, please click on the following articles: