People v. Delavega

59 Cal.App.5th 1074

273 Cal.Rptr.3d 843

The PEOPLE, Plaintiff and Respondent,

v.Eduardo DELAVEGA, Defendant and Appellant.

A154936

Court of Appeal, First District, Division 1, California.

Filed January 15, 2021

Law Offices of Beles & Beles, Robert J. Beles, Paul McCarthy, Manisha Daryani, Oakland, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General, for Plaintiff and Respondent.

Humes, P.J. Defendant Eduardo Delavega was charged with murder and various enhancements, including three firearm enhancements under Penal Code section 12022.53, subdivisions (b), (c), and (d).¹ The subdivision (d) enhancement applies when a defendant is found to have personally and intentionally discharged a firearm causing death, while the subdivision (b) enhancement applies when a defendant is found to have personally used a firearm and the subdivision (c) enhancement applies when a defendant is found to have intentionally discharged a firearm. The enhancements under subdivisions (b) and (c) are lesser included enhancements of the enhancement under subdivision (d), in that a defendant who violates subdivision (d) necessarily also violates subdivisions (b) and (c).

Although Delavega was charged with all three enhancements, the verdict forms did not reference the subdivision (b) and (c) enhancements, and the jury made no finding as to either of them. The jury did, however, convict Delavega of second degree murder and find true the subdivision (d) enhancement. At sentencing, Delavega asked the trial court to exercise its discretion under Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill No. 620) to strike the subdivision (d) enhancement, which carries a term of 25 years to life. The trial court declined to do so, and it sentenced Delavega to a total term of 40 years to life in prison.

On appeal, Delavega argues that the trial court erred because it refused to strike the subdivision (d) enhancement on the premise that it could only impose or strike that enhancement, not strike that enhancement and impose a lesser enhancement under subdivision (b) or (c).² The Courts of Appeal disagree about the circumstances under which a trial court has the discretion to impose a lesser enhancement when it strikes a greater enhancement under section 12022.53. The first published decision to address the issue held that courts have such discretion even when the lesser enhancement was not charged separately. ( People v. Morrison (2019) 34 Cal.App.5th 217, 222, 245 Cal.Rptr.3d 849 ( Morrison ).) Subsequent cases have disagreed, holding that courts have such discretion only when a lesser enhancement was charged and found to be true. (See, e.g., People v. Tirado (2019) 38 Cal.App.5th 637, 644, 251 Cal.Rptr.3d 412 ( Tirado ), review granted Nov. 13, 2019, S257658.) We hold that when, as in this case, a lesser enhancement was separately charged under section 12022.53 but was not determined to be true, the trial court lacks discretion to impose it upon striking a greater enhancement under the statute. Accordingly, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A detailed discussion of the facts is unnecessary to our resolution of the appeal. Briefly, however, Delavega got into a fist fight with Justin Kroh in August 2014. Later that month, Delavega, who was then 18 years old, and a friend were driving in Antioch when they spotted Kroh riding a bicycle on the opposite side of the road. Delavega, who testified in his own defense, heard Kroh ask if he was ready for another fight, and Delavega instructed his friend to make a U-turn.

Delavega's friend parked, and Delavega got out of the vehicle and approached Kroh. After a brief confrontation during which Delavega claimed Kroh pulled a knife, Delavega shot at Kroh, striking him in the head. Delavega and his friend fled the scene, and Kroh later died of his injuries.

Delavega was charged with murder and various enhancements. One alleged a gang special circumstance, and another alleged that Delavega committed the offense for the benefit of a street gang.³ In addition, under the heading "Enhancement 2 [¶] PC12022.53(d): Special Allegation-Principal's Intentional Discharge of A firearm, GBI – Gang Case," Delavega was charged as follows:

"It is further alleged as to defendant, EDUARDO DELAVEGA, that as to Count 1 that a principal personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death to Justin Kroh within the meaning of Penal Code section 12022.53(d) and (e)(1). It is further alleged that a principal personally and intentionally discharged a firearm, within the meaning of Penal Code section 12022.53(c) and (e)(1). It is further alleged that a principal personally used a firearm, within the meaning of Penal Code section[ ] 12022.53(b) and (e)."

The jury acquitted Delavega of first degree murder, rendering a finding on the gang special circumstance unnecessary (see § 190.2, subd. (a)), but it found him guilty of second degree murder. It also found the remaining separate gang allegation untrue, rendering unnecessary a finding under the heading "Charge Enhancement 2a" on the verdict form, which addressed the portion of the gun enhancement under section 12022.53, subdivision (e) (see §§ 186.22, subd. (b), 12022.53, subd. (e)(1)(A)).

The jury found true that Delavega "personally and intentionally discharged a firearm, ... which proximately caused great bodily injury and death to Justin Kroh, a violation of Penal Code Section 12022.53(d)." The verdict form did not include separate spaces for findings under subdivision (b) or (c) of that statute or reference either subdivision, and there was no discussion on the record about how the section 12022.53 allegations should appear on the form. At the prosecution's request, the jury was instructed under CALCRIM No. 3150, which is given "when the defendant is charged with an enhancement both for intentional discharge and for intentional discharge causing great bodily injury or death"—i.e., when enhancements are charged under both subdivisions (c) and (d). (Judicial Council of Cal., Crim. Jury Instns. (2020 ed.) Bench Notes to CALCRIM No. 3150, p. 856.)⁴

At the May 2018 sentencing hearing, Delavega asked the trial court to exercise its discretion under section 12022.53, subdivision (h) ( section 12022.53(h) ) to strike the enhancement of 25 years to life under subdivision (d) and impose a total term of 15 years to life for the murder. In addressing the request, the court agreed with Delavega's trial counsel that it had only "two choices, the 15 to life ... or the 40 to life, and that's it. There's no in between. There's no splitting the difference. Those are the options that face the Court." Concluding that it was not "justifiable" to strike the enhancement, the court imposed a total term of 40 years to life.

II.

DISCUSSION

A. Legal Background

As we have said, section 12022.53 establishes three sentencing enhancements of varying lengths for the personal use of a firearm during the commission of certain felonies. Specifically, subdivision (b) requires a 10-year enhancement for the personal use of a firearm during a qualifying offense, subdivision (c) requires a 20-year enhancement if the firearm is personally and intentionally discharged, and subdivision (d) requires a 25-years-to-life enhancement if the firearm is personally and intentionally discharged and proximately causes great bodily injury or death.

"[A] sentencing enhancement ... is not a complete offense in itself" but instead "prescribes additional punishment for the crime." ( People v. Anderson (2009) 47 Cal.4th 92, 115, 97 Cal.Rptr.3d 77, 211 P.3d 584.) As a result, sentencing enhancements are not analogous to substantive offenses in many respects, including in the functioning of "greater and lesser included offenses and greater and lesser degrees of the same offense." ( Ibid. ; see, e.g., People v. Majors (1998) 18 Cal.4th 385, 410, 75 Cal.Rptr.2d 684, 956 P.2d 1137 [sua sponte duty to instruct on lesser included offenses does not extend to "so-called ‘lesser included enhancements’ "].) Nonetheless, we use the term "lesser enhancement" to refer to an enhancement whose factual predicates are necessarily found true when a factfinder finds true the greater enhancement. (See, e.g., People v. Fialho (2014) 229 Cal.App.4th 1389, 1398, 178 Cal.Rptr.3d 1 ( Fialho ).) In this sense, subdivisions (b) and (c) of section 12022.53 are lesser enhancements of subdivision (d), meaning that a true finding under subdivision (d) amounts to a true finding under the other two subdivisions. ( Morrison , supra , 34 Cal.App.5th at p. 222, 245 Cal.Rptr.3d 849.)

For any of these enhancements to be imposed, the requisite facts must "be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." ( § 12022.53, subd. (j) ; People v. Gonzalez (2008) 43 Cal.4th 1118, 1124–1125, 77 Cal.Rptr.3d 569, 184 P.3d 702.) In addition, an enhancement must "be pleaded in connection with every count as to which it is imposed." ( People v. Anderson (2020) 9 Cal.5th 946, 956–957, 266 Cal.Rptr.3d 283, 470 P.3d 2 ( Anderson ).) "If more than one enhancement per person is found true under [ section 12022.53 ], the court shall impose upon that person the enhancement that provides the longest term of imprisonment." ( § 12022.53, subd. (f).) In such a situation, the proper course is to sentence the defendant on the greater enhancement and stay any lesser enhancements. ( Gonzalez , at pp. 1122–1123, 77 Cal.Rptr.3d 569, 184 P.3d 702.)

Senate Bill No. 620 took effect on January 1, 2018. ( People v. McDaniels (2018) 22 Cal.App.5th 420, 424, 231 Cal.Rptr.3d 443.) The legislation amended section 12022.53(h), which previously prohibited...