Discretion expanded to impose lesser firearms enhancement

In People v. McDavid, the Supreme Court today builds on its People v. Tirado (2022) 12 Cal.5th 688 decision, which held a statute — Penal Code section 12022.53 — gives superior courts the choice not only to strike or not strike firearms sentencing enhancements, but also to impose a lesser enhancement from that same statute in the stricken one’s place, even if the prosecution never charged the lesser enhancement (see here). McDavid now says the replacement lesser enhancement can come from a statute other than section 12022.53, as long as the lesser enhancement “is supported by facts that have been alleged and found true.”

The court’s unanimous opinion by Justice Goodwin Liu quotes a legislative report on the 2017 bill adding the discretion to strike the enhancements. The prior no-discretion statute “ ‘ “disproportionately increase[d] racial disparities in prison populations and . . . greatly increase[d] the population of incarcerated persons,” ’ ” the analysis said.

The court’s decision doesn’t require the trial court to strike any enhancements imposed on the defendant, who was convicted of conspiracy to commit murder and attempted premediated murder with findings that he intentionally and personally discharged a firearm, causing great bodily injury, and that he personally inflicted great bodily injury on the victim, his lover’s estranged husband. But the trial court will now have the opportunity to strike enhancements and impose lesser ones knowing it has the discretion to do so.

The court reverses the partially divided unpublished opinion by the Fourth District, Division One, Court of Appeal. It also disapproves the Fifth District’s decision in People v. Lewis (2022) 86 Cal.App.5th 34. The Supreme Court is in accord with the Fourth District, Division Two, decision in People v. Fuller (2022) 83 Cal.App.5th 394 (especially a concurring opinion in that case) and the Third District opinion in People v. Johnson (2022) 83 Cal.App.5th 1074. There was no petition for review in Lewis. Fuller and Johnson are grant-and-holds for today’s decision.