People v. Fuller

• Court: California Court of Appeal
• Decided: September 15, 2022
• Docket: E071794
• Status: Published

Opinion

Filed 9/15/22 See Concurring Opinion

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E071794

v. (Super.Ct.No. RIF1701359)

ERIC LAVELL FULLER, JR., et al., OPINION ON TRANSFER

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. John D. Molloy, and

David A. Gunn, Judges. Affirmed in part, vacated in part, and remanded with directions.

David Zarmi for Defendant and Appellant Eric Lavell Fuller, Jr.

Steven A. Brody, under appointment by the Court of Appeal, for Defendant and

Appellant Destinee Sharniele Tresvant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Jennifer B.

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part A of the Background and Parts A, B, and C of the Discussion.

1 Truong, and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and

Respondent.

In People v. Tirado (2022) 12 Cal.5th 688, 692 (Tirado), the Supreme Court held

that when a firearm enhancement under Penal Code section 12022.53 has been charged

and found true, a sentencing court has discretion to strike the enhancement and impose an

uncharged lesser included enhancement. (Undesignated statutory citations are to the

Penal Code.) On this appeal, the People argue that a sentencing court’s discretion under

Tirado is limited to imposing a lesser enhancement under section 12022.53, so a court

that strikes an enhancement under section 12022.53 cannot impose an uncharged lesser

included enhancement under section 12022.5. We disagree and hold that under Tirado

the sentencing court may impose an uncharged lesser included enhancement under

section 12022.5 after striking a greater enhancement under section 12022.53.

BACKGROUND

This appeal arises from the armed robbery of a nail salon followed by a high-speed

pursuit of the perpetrators after they fled the scene. Victims identified Aaron Murl

Moses, Jr., Eric Lavell Fuller, Jr., and Destinee Sharniele Tresvant as three of the

perpetrators. A jury convicted Moses and Fuller of numerous offenses arising from the

incident and found related firearm enhancements true. Tresvant pleaded guilty after the

2 trial court found her competent to stand trial and found that she was ineligible for pretrial

mental health diversion.1

On appeal, Tresvant argues that the trial court erred by directing a verdict against

her in a competency proceeding and by failing thereafter to conclude that she did not

make a prima facie showing for pretrial mental health diversion under section 1001.36.

Fuller and Tresvant argue that the trial court abused its discretion by failing to consider

imposing uncharged lesser included firearm enhancements under section 12022.5,

subdivision (a) (section 12022.5(a)) instead of imposing the charged enhancements under

section 12022.53, subdivision (b) (section 12022.53(b)), and Tresvant argues that the trial

court abused its discretion by failing to strike the enhancement. Fuller also contends that

the trial court failed to consider his ability to pay various fines and fees. Moses raised

numerous sentencing issues.

In a prior unpublished opinion, we vacated Moses’s sentence because we

concluded that it was unauthorized. The trial court failed to impose a sentence for each

of Moses’s offenses. (People v. Moses (July 1, 2021, E071794) [nonpub.].) We

consequently vacated Moses’s sentence and remanded the matter for resentencing.

The Supreme Court granted review, vacated our prior opinion, and transferred the

case of Fuller and Tresvant (collectively, defendants) back to us with directions to

reconsider it in light of Tirado. Earlier, while review was pending, the Supreme Court

1 In addition, codefendants Wensheila Marsha Swisher and Destin Carl Pipkins pled guilty before trial to various offenses, resulting in sentences of two years and 15 years in state prison.

3 severed Moses’s case, granted his request to dismiss review as to him, and remanded the

matter with directions for us to issue a remittitur as to Moses, which we did.2 We

accordingly do not address any issues concerning Moses in this opinion. We also do not

describe the underlying facts from the jury trial for Moses and Fuller, because the only

issues we address as to Fuller pertain to sentencing issues that do not depend on those

facts.

On remand from the Supreme Court, Fuller, Tresvant, and the People filed

supplemental briefs concerning Tirado. The People argue that Tirado only authorizes a

trial court to impose uncharged lesser enhancements included within section 12022.53, so

it does not apply here. Defendants disagree.

We also asked the parties to submit supplemental briefing on the effect of Senate

Bill No. 567 (Senate Bill 567) (2021–2022 Reg. Sess.) on defendants’ sentences, which

they have done. The People concede that Senate Bill 567 applies retroactively to this

case but argue that remand is not warranted. Again, defendants disagree.

2 The Supreme Court dismissed review as to Moses before it vacated our prior opinion. We issued the remittitur as to Moses before the Supreme Court vacated our prior opinion. We and the Supreme Court therefore lost jurisdiction over Moses’s case before the prior opinion was vacated. (See In re Martin (1962) 58 Cal.2d 133, 138 [“the general rule is that an appellate court loses all control and jurisdiction over a cause after remittitur has been issued”].) Our prior opinion therefore was not vacated as to Moses.

4 A. Tresvant’s Competency to Stand Trial

Before trial commenced for all defendants, Tresvant’s counsel expressed doubt

about Tresvant’s competency, because Tresvant had made statements to counsel about

the presence of FBI agents and people with a third eye in her cell. The trial court

suspended proceedings as to Tresvant. After Tresvant was examined by court-appointed

medical professionals for the defense and the prosecution, the court held a competency

trial before a jury.

1. Defense Evidence

The defense presented one witness, Dr. William H. Jones, Ph.D., a court-appointed

clinical psychologist who in October 2018 had conducted a 90-minute evaluation of

Tresvant for competency. Dr. Jones reviewed Tresvant’s police records but did not

review her mental health records from jail or her childhood medical records. He

questioned Tresvant about her family, education, relationships, employment history,

medical history, and psychiatric history. He also asked Tresvant questions designed to

elicit information about her psychological functioning, how she thinks, and whether she

was experiencing symptoms of emotional distress. He further questioned Tresvant about

“her understanding of the courtroom proceedings,” and he believed that Tresvant

“appear[ed] to understand” that the purpose of the evaluation was to determine her

competency.

Tresvant reported that as a child she had been treated for unspecified mental health

issues. When she was interviewed, Tresvant was taking two types of antidepressant

5 medications. Tresvant reported that she was experiencing auditory and visual

hallucinations and that she had heard hallucinated voices since childhood but had not

heard any hallucinated voices after she started taking medication in jail. She claimed that

the hallucinated voices distracted her and influenced her behavior. Dr. Jones did not test

Tresvant to determine if she was malingering and did not consider the inconsistencies in

her interview sufficient to conclude that she was malingering.

On the basis of his 90-minute evaluation of Tresvant, Dr. Jones concluded and

summarized in a written report that Tresvant suffered from paranoid schizophrenia, was

not competent to stand trial, and would not be able to assist her attorney in presenting a

defense.

On cross-examination, Dr. Jones testified that after preparing the report he

changed his opinion about Tresvant’s competency to stand trial and whether she suffered

from paranoid schizophrenia. Before testifying, Dr. Jones reviewed Tresvant’s mental

health records from jail and reports prepared by two other mental health experts, Dr.

David Walsh, Ph.D., and Dr. Michael E. Kania, Ph.D., who had evaluated Tresvant

before Dr. Jones.

In reviewing Tresvant’s medical records, Dr. Jones learned that when Tresvant

first spoke with mental health staff at jail “she did not report any voices.” Tresvant

instead presented to them as having anxiety and depression and was diagnosed as

suffering from major depressive disorder of an unspecified degree—mild, moderate, or

severe. Dr. Jones noted that “[t]here’s a type of severe depression in which a person may

6 hear hallucinated voices, but that was not indicated in [Tresvant’s] records.” In addition,

it is possible that someone suffering from severe major depressive disorder could suffer

from hallucinations, and “depression, in some cases, could make a person incompetent.”

A few weeks before Dr. Jones evaluated Tresvant, Dr. Walsh evaluated her and

reported that Tresvant “did not endorse or exhibit any symptoms of psychosis, mania,

panic or intoxication.” In reviewing the reports of Drs. Walsh and Kania, Dr. Jones was

struck by the fact that Tresvant had reported hallucinations to one of those doctors and

not to the other. Having reviewed the additional material about Tresvant’s mental health,

Dr. Jones reflected on cross-examination about how some of Tresvant’s claims of

auditory and visual hallucinations to him had been “unusual” or “odd” and were not of

the kind typically reported by individuals suffering from paranoid schizophrenia.

Tresvant’s volunteering that the voices “never instructed her to hurt anybody else” also

was atypical, but he noted that inmates who express that they might hurt someone else are

housed differently in jail.

Given the variation in Tresvant’s reports of hallucinations, Dr. Jones found his

conclusion that Tresvant experienced hallucinations to be “more questionable.” On the

basis of the inconsistent reporting of hallucinations to Drs. Walsh and Kania and to

mental health staff at jail, Dr. Jones reported that he had become “doubtful about the

schizophrenia conclusion,” thinking it was “probably not correct.” Dr. Jones opined that

Tresvant suffered instead from depression and anxiety. He doubted that Tresvant’s

responses to him were accurate. On the basis of “all the new information” he had

7 obtained and reviewed, Dr. Jones opined that a “preponderance of the evidence

supported” the conclusion that Tresvant was competent to stand trial.

2. Directed Verdict Motion

Following the defense case, the prosecutor orally moved for a directed verdict,

arguing that there was not “sufficient evidence to sustain a jury to find, even by a

preponderance of the evidence, that the defendant is incompetent.” The court entertained

argument from both parties and reserved ruling on the motion until after hearing the

prosecution’s evidence.

3. Prosecution Evidence

The prosecution called three witnesses: Dr. Walsh and two deputy probation

officers who had interacted with Tresvant in juvenile hall. Dr. Walsh opined that

Tresvant was competent to stand trial, and Dr. Walsh did not believe that Tresvant

suffered from any mental illness, including paranoid schizophrenia. Tresvant did not

exhibit “any outward symptoms of mental illness,” psychosis, panic, or intoxication. Dr.

Walsh believed that Tresvant was being voluntarily evasive, a conclusion he did not

reach lightly, and that any symptoms of impairment she might have been displaying

resulted from “an intentional strategy” and were “not due to mental illness.” Dr. Walsh

knew that Tresvant was taking antidepressant medication, which he explained is

“relatively common” in jail.

In May 2017, approximately one month after the offenses were committed,

Deputy Probation Officer Colin Villiers interviewed Tresvant for the purpose of

8 preparing a juvenile fitness hearing report. Officer Villiers questioned Tresvant about her

mental health history, and Tresvant said that she had never had any mental health

treatment or counseling or been prescribed any psychotropic medication. She “did not

believe she needed counseling.” Tresvant seemed “quite bright,” “pleasant, attentive,

funny, [and] engaging.” Supervising Probation Officer Todd Hough testified in 2017 that

while Tresvant was housed at the juvenile hall where he worked, Tresvant was “one of

[the] top youth in the unit,” where she was considered a leader, was “very respectful to

staff,” interacted well with her peers, and did well in school.

4. Directed Verdict on Competency

After hearing the prosecution’s evidence, the court concluded that Tresvant had

not carried her burden of demonstrating by a preponderance of the evidence that she was

incompetent to stand trial. Finding there to be no substantial evidence to support a

verdict that Tresvant was incompetent, the court directed the verdict against Tresvant and

found her to be competent.

B. Pretrial Mental Health Diversion and Tresvant’s Guilty Plea and Sentencing

After the trial court found Tresvant competent to stand trial, Tresvant filed two

motions for pretrial mental health diversion on the ground that she suffers from major

depressive disorder. The trial court conducted a hearing on the motions and found that

Tresvant did not make a prima facie showing of two of the eligibility requirements for

diversion.

9 Tresvant thereafter pled guilty to five counts of robbery (for five separate victims)

and to one count of recklessly evading an officer, and she admitted as true that she

personally used a firearm in committing each of the five robbery offenses. (§§ 211,

12022.53(b), 1192.7, subd. (c)(8); Veh. Code, § 2800.2.) Tresvant was 17 years old

when she committed the offenses. In sentencing Tresvant, the court recognized that she

was young, had no prior record, had a difficult childhood, and pled guilty. In considering

Tresvant’s age, the court took into account “the immaturity and the impetuosity of the

young folks to make stupid decisions.” The court weighed the mitigating circumstances

against the gravity of offenses, which resulted in people being “terrorized,” and the court

indicated that there needed to be “serious consequences” for “terrorizing folks.” The

court sentenced Tresvant to 14 years in state prison. For the first robbery offense

(count 1), the court sentenced her to the midterm sentence of three years.

C. Fuller’s Convictions and Sentence

A jury convicted Fuller of five counts of robbery (one for each victim) and one

count of recklessly evading an officer. (§ 211; Veh. Code, § 2800.2.) The jury found

true that Fuller personally used a firearm in committing each of the robbery offenses.

(§§ 12022.53(b), 1192.7, subd. (c)(8).) The jury deadlocked on great bodily injury

enhancements associated with the first two robbery counts, so the court declared a

mistrial as to those allegations. (§ 12022.7, subd. (a).) The court granted the People’s

motion to dismiss those allegations. Fuller was 17 years old when he committed the

offenses.

10 After considering Fuller’s age and various aggravating circumstances, the trial

court imposed the upper term of five years on count 1, the first robbery offense. (§ 213,

subd. (a)(2).) The court imposed consecutive sentences for all of the robbery offenses

and declined to strike the firearm enhancements. With respect to the firearm

enhancement associated with count 1, the court acknowledged that it had the discretion to

strike the enhancement but declined to do so, explaining that “[t]his is exactly the type of

case that falls squarely within the heart of what the [L]egislature was after when they

enacted this statute.” The court sentenced Fuller to 32 years and four months in state

prison.

DISCUSSION

A. Tresvant’s Competency to Stand Trial

Tresvant argues that the trial court erred by directing a verdict for the prosecution

on her competency to stand trial. She claims that there was substantial evidence from

which a jury could have found her incompetent and that she is entitled to a new trial on

her competency. We are not persuaded.

“A person shall not be tried or adjudged to punishment . . . while that person is

mentally incompetent.” (§ 1367, subd. (a); People v. Rogers (2006) 39 Cal.4th 826, 846.)

“A defendant is mentally incompetent if, as a result of a mental disorder or

developmental disability, he or she is unable to understand the nature of the criminal

proceedings or to assist counsel in the conduct of a defense in a rational manner.”

(People v. Lawley (2002) 27 Cal.4th 102, 131 (Lawley).) “When the accused presents

11 substantial evidence of incompetence, due process requires that the trial court conduct a

full competency hearing.” (Ibid.; § 1368.)

“A defendant is presumed competent unless the contrary is proven by a

preponderance of the evidence,” (Lawley, supra, 27 Cal.4th at p. 131) and the defendant

bears the burden of proof (People v. Mendoza (2016) 62 Cal.4th 856, 871). Upon

commencement of the competency trial, “counsel for the defendant shall offer evidence

in support of the allegation of mental incompetence,” and the prosecution follows by

presenting its case. (§ 1369, subds. (b)(1), (c).)

Even though a competency hearing arises in the context of a criminal trial, the

hearing “is a special proceeding, governed generally by the rules applicable to civil

proceedings.” (Lawley, supra, 27 Cal.4th at p. 131; People v. Lawson (1918) 178 Cal.

722, 728; see also People v. Conrad (1982) 132 Cal.App.3d 361, 374 (Conrad)

[affirming the trial court’s entry of judgment notwithstanding the verdict on the

defendant’s competence]; People v. Mapp (1983) 150 Cal.App.3d 346, 351, 353 (Mapp)

[relying on Conrad in affirming directed verdict for the prosecution in a proceeding

regarding restoration of sanity].) Code of Civil Procedure section 630 provides that

“after all parties have completed the presentation of all of their evidence in a trial by jury,

any party may, without waiving his or her right to trial by jury in the event the motion is

not granted, move for an order directing entry of a verdict in its favor.” (Code Civ. Proc.,

§ 630, subd. (a).) “In considering whether there was error in granting of the directed

verdict, we must view the evidence in the light most favorable to [Tresvant] and indulge

12 in every legitimate inference that may be drawn from the evidence in [her] favor and

disregard conflicting evidence to determine whether there was evidence of sufficient

substantiality to support a verdict” that she was not competent to stand trial. (Mapp,

supra, 150 Cal.App.3d at p. 351.) To be substantial, evidence “must be ‘of ponderable

legal significance . . . reasonable in nature, credible, and of solid value.’” (People v.

Johnson (1980) 26 Cal.3d 557, 576 (Johnson).) We independently review a directed

verdict. (Guillory v. Hill (2015) 233 Cal.App.4th 240, 249.)

Tresvant’s only witness was Dr. Jones, and he concluded that she was competent

to stand trial. In arguing that there was substantial evidence from which a jury could

have concluded otherwise, Tresvant points to Dr. Jones’s initial conclusion that Tresvant

was not competent to stand trial, which was based solely on his interview of her.

Tresvant argues that the trial court improperly weighed the credibility of witnesses and

was required to ignore Dr. Jones’s subsequent conclusion that she was competent to stand

trial. But this was not a situation in which competing experts reached different

conclusions, and the trial court credited one expert opinion while discrediting the other.

Instead, the same expert withdrew his prior opinion and concluded that Tresvant was

competent to stand trial. Dr. Jones’s repudiation of his prior opinion in the written report

deprived that opinion of evidentiary value—that is, it was not “‘reasonable in nature,

credible, and of solid value.’” (Johnson, supra, 26 Cal.3d at p. 576.) There consequently

was no expert evidence that Tresvant was not competent to stand trial. Thus, viewing the

13 evidence in the light most favorable to Tresvant, the record does not contain any

evidence, let alone substantial evidence, that she was not competent to stand trial.

Because there was no evidence from which the jury could conclude that Tresvant

was not competent to stand trial, we conclude that the trial court did not err by entering a

directed verdict against Tresvant on her competency.

B. Pretrial Mental Health Diversion for Tresvant

Tresvant next argues that the trial court erred by concluding that she did not make

a prima facie showing of eligibility for pretrial mental health diversion under section

1001.36. We conclude that the trial court did not abuse its discretion.

1. Relevant Proceeding

Attached to Tresvant’s second motion for pretrial mental health diversion were the

October 26, 2018, competency evaluation from Dr. Jones in which he had concluded she

suffered from paranoid schizophrenia, her medical records from jail, various academic

transcripts and certificates, and letters from friends and family. A California

assemblyman who had known Tresvant her entire life described her as being “a strong

leader among her peers in the community.” Someone else with an unspecified

connection to Tresvant described her as “a born leader.” Others remarked on her

academic prowess, intelligence, and strength.

Sometime after finding Tresvant competent to stand trial, the trial court held a

hearing it described as “a prima facie diversion hearing” under section 1001.36 to

determine whether Tresvant had made a prima facie showing for pretrial mental health

14 diversion. The trial court assumed for the sake of argument that Tresvant had made a

prima facie showing that she suffered from a qualifying mental health disorder (namely,

major depressive disorder) and that the disorder was treatable. But the trial court found

that Tresvant had failed to make a prima facie showing that she did not pose an

unreasonable risk of danger to public safety if treated in the community and that her

disorder played a significant role in the commission of the charged offense.

With respect to whether Tresvant’s major depressive disorder played a significant

role in the commission of the charged offenses, defense counsel made an offer of proof

that Dr. Jones would testify that (1) “he wrote in the report that her major depressive

disorder influenced her, or somehow the condition allowed her to be manipulated to go

into a vehicle where co-defendants were committing this robbery,” (2) Tresvant suffered

from this condition when the robberies were committed, and (3) people suffering from

major depressive disorder are followers and not leaders. The court accepted that there

existed evidence that Tresvant was depressed after having been in custody for over one

year but concluded there was no evidence that she suffered from depression when the

crimes were committed. The court explained, “[t]here is no real indication, even from the

doctor’s reports that I reviewed, that she was suffering from that type of condition based

on responses from her family and friends at the time of the incident herself.”

2. Analysis

Section 1001.36 provides that certain criminal defendants suffering from

qualifying mental disorders may be eligible for pretrial diversion, which the statute

15 defines as “postponement of prosecution, either temporarily or permanently, at any point

in the judicial process from the point at which the accused is charged until adjudication,

to allow the defendant to undergo mental health treatment.” (§ 1001.36, subds. (a)-(c).)

For defendants charged with a qualifying crime, a trial court may grant pretrial diversion

if all of the following requirements are met: (1) The court is satisfied that the defendant

suffers from a qualifying mental disorder; (2) the court is satisfied that the disorder

played a significant role in the commission of the charged offense; (3) a qualified mental

health expert opines that the defendant’s symptoms will respond to mental health

treatment; (4) the defendant consents to diversion and waives his or her speedy trial right;

(5) the defendant agrees to comply with treatment; and (6) the court is satisfied that the

defendant will not pose an unreasonable risk of danger to public safety if treated in the

community. (§ 1001.36, subd. (b)(A)-(F); People v. Frahs (2020) 9 Cal.5th 618, 626-627

(Frahs).) “If the defendant makes a prima facie showing that he or she meets all of the

threshold eligibility requirements and the defendant and the offense are suitable for

diversion, and the trial court is satisfied that the recommended program of mental health

treatment will meet the specialized mental health treatment needs of the defendant, then

the court may grant pretrial diversion. (§ 1001.36, subds. (a), (b)(3) & (c)(1).)” (Frahs,

supra, at p. 627.) “The hearing on the prima facie showing shall be informal and may

proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie

showing is not made, the court may summarily deny the request for diversion or grant

any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)

16 Diversion under section 1001.36 is discretionary, not mandatory, even if all of the

requirements are met. (§ 1001.36, subd. (a); Frahs, supra, 9 Cal.5th at p. 626.) We

therefore review for abuse of discretion the trial court’s decision whether to grant a

request for mental health diversion. (See People v. Hall (2016) 247 Cal.App.4th 1255,

1264 (Hall).)

Tresvant argues that we do not review for abuse of discretion the trial court’s

determination of whether a defendant has made a prima facie showing of eligibility,

arguing instead that she “need only show the court erred in failing to apply the correct

prima facie analysis to her showing of eligibility.” For the two factors on which the trial

court based its determination in this case, we do not agree. We review for abuse of

discretion the trial court’s determination of whether resentencing a petitioner under

section 1170.18 “would pose an unreasonable risk of danger to public safety.” (People v.

Jefferson (2016) 1 Cal.App.5th 235, 242; Hall, supra, 247 Cal.App.4th at pp. 1263-

1264.) Section 1001.36 expressly adopts the definition of “unreasonable risk of danger to

public safety” that is provided in section 1170.18. (§ 1001.36, subd. (b)(1)(F).) Tresvant

has not provided any reason why a different standard of review should apply to reviewing

the trial court’s determination of whether a defendant has made a prima facie showing

regarding this identical factor in section 1001.36. Likewise, the court’s determination of

whether the court “is satisfied that the defendant’s mental disorder was a significant

factor in the commission of the charged offense” (§ 1001.36, subd. (b)(1)(B)) appears to

be inherently discretionary—the court must exercise its discretion to determine whether it

17 is “satisfied” that the role of the mental disorder was sufficiently “significant” to qualify.

Because the trial court must exercise its discretion in making both of those

determinations, we review them for abuse of discretion. (In re White (2020) 9 Cal.5th

455, 469.) At the same time, we recognize that “‘[a]n abuse of discretion is shown when

the trial court applies the wrong legal standard’” (Hall, supra, at p. 1264), and we

independently review questions of statutory interpretation (People v. Dimacali (2019) 32

Cal.App.5th 822, 827).

Tresvant argues that her offers of proof concerning Dr. Jones’s testimony

constituted a prima facie showing that her mental health disorder was a “significant

factor” in her commission of the offenses. She contends that at the prima facie showing

stage the trial court was not allowed to consider anything except her uncontradicted

evidence in determining whether she made a prima facie showing. In the context of this

case, we do not agree.

In general, a prima facie showing “‘is one that is sufficient to support the position

of the party in question.’” (People v. Garcia (2020) 57 Cal.App.5th 100, 110; People v.

Law (2020) 48 Cal.App.5th 811, 820.) Prima facie evidence, however, “‘“is that which

suffices for the proof of a particular fact, until contradicted and overcome by other

evidence. It may, however, be contradicted, and other evidence is always admissible for

that purpose.”’” (People v. Nunez (2020) 57 Cal.App.5th 78, 88, review granted Jan. 13,

2021, S265918.)

18 Nothing in the language of the statute suggests that, in determining whether a

defendant has made a “prima facie showing” for eligibility, a trial court is required to

consider only the defendant’s evidence. The statute does not limit the court’s

consideration of “offers of proof, reliable hearsay, and argument of counsel” to those

presented or made by the defense. (§ 1001.36, subd. (b)(3).) The Legislature knew how

to and could have added limiting language to the statute if it desired such a limitation.

(People v. Albillar (2010) 51 Cal.4th 47, 57.) We will not read such limiting language

into the statutory text. (Pacific Gas & Electric Co. v. Superior Court (2017) 10

Cal.App.5th 563, 571.) In the absence of such an express limitation, we conclude that the

trial court is not limited to consideration of evidence, argument by counsel, and offers of

proof made by the defendant in determining whether the defendant has made a prima

facie showing of eligibility for diversion.

Moreover, in the context of this case, requiring the court to consider only

Tresvant’s evidence and offers of proof would be particularly absurd, given the evidence

that had already been introduced about Tresvant’s mental health in the competency

proceeding. It would make no sense to require the court to disregard that evidence, find a

prima facie case on that basis, set a further hearing on diversion, and then be confronted

with the same evidence that the court knew about but deliberately ignored at the prima

facie showing stage. Thus, in determining whether Tresvant made a prima facie showing,

the trial court properly considered evidence outside of the offers of proof presented by

Tresvant. The court did not apply an improper analytical framework.

19 The trial court did not abuse its discretion by concluding that Tresvant did not

make a prima facie showing that major depressive order was a significant factor in her

commission of the offenses. First, the offer of proof that Dr. Jones would testify that he

wrote in his report that Tresvant’s major depressive disorder influenced her or somehow

“allowed her to be manipulated to go into a vehicle where co-defendants were

committing this robbery” is of negligible value. Dr. Jones’s report was submitted in

support of Tresvant’s motion, and in it he concluded that Tresvant suffered from paranoid

schizophrenia and not major depressive disorder, as proffered by defense counsel.

Moreover, the paranoid schizophrenia diagnosis (which Dr. Jones retracted at the

competency trial, as described ante) was the basis for the report’s statement that Tresvant

was a “a very dependent and passive person who would be likely to blindly follow the

suggestions of her attorney or peers.” The first offer of proof concerning Dr. Jones’s

testimony thus is conclusively refuted by other evidence Tresvant submitted with her

motion.

Second, the remaining offers of proof concerning Dr. Jones’s testimony do not

address how Tresvant’s mental disorder played a role in her commission of the offenses,

let alone the significance of that role. Aside from the statements about what Dr. Jones

had written in his report, the offers of proof were that Dr. Jones would testify that

Tresvant suffered from major depressive disorder when the robberies were committed

and that people who suffer from major depressive disorder are followers and not leaders.

Evidence that a defendant suffers from a mental disorder that generally tends to make

20 someone a follower and not a leader does not show that the disorder played a significant

role (or any role) in that particular defendant’s commission of that particular offense.

The evidence does not exclude the obvious possibility that leaders can suffer from major

depression too, or that a person suffering from major depression who consequently tends

to be a follower in some circumstances may also be a leader or coequal participant in

others. The offer of proof that Dr. Jones would testify that Tresvant suffers from major

depression and that people who suffer from major depression tend to be followers rather

than leaders thus does not constitute a prima facie showing that Tresvant’s alleged mental

disorder played a significant role, or any role at all, in her commission of the offenses.

Therefore, even if the trial court were limited to considering Tresvant’s offers of proof,

the trial court did not abuse its discretion by concluding that Tresvant did not make a

prima facie showing that a mental disorder played a significant role in her commission of

the offenses.

The evidence introduced at the competency trial further supports our conclusion

that the trial court did not abuse its discretion. At the competency trial, there was no

evidence that Tresvant was depressed when she committed the offenses. Instead, the

evidence showed that she suffered from an unspecified degree of major depressive

disorder while incarcerated, which Dr. Walsh explained is common. The probation

officers who interacted with Tresvant around the time of her detention (immediately after

the robberies were committed) described her as bright, engaged, and a leader. Those

impressions were overwhelmingly supported by the reference letters Tresvant submitted,

21 in which numerous people described her as smart and a leader. Moreover, when she was

evaluated for a juvenile fitness hearing one month after the offenses were committed,

Tresvant told the probation officer that she did not have any mental health history and

that she “did not believe she needed counseling.” Given all of that evidence, it was well

within the trial court’s discretion to determine that there was no prima facie showing that

at the time of the charged offenses Tresvant suffered from depression at all, let alone to

such a degree that her depression played a significant role or any role in her commission

of the offenses.

For all of these reasons, we conclude that the trial court did not abuse its discretion

by concluding that Tresvant failed to make a prima facie showing that her mental

disorder was not a significant factor in the commission of the offenses. Because a

defendant is not statutorily eligible for pretrial mental health diversion unless all of the

threshold criteria are met (§ 1001.36, subd. (b)(1)), we need not and do not decide

whether the trial court abused its discretion by concluding that Tresvant did not make a

prima facie showing that she did not pose an unreasonable risk of danger to public safety.

C. Senate Bill 567

“Robbery of the second degree is punishable by imprisonment in the state prison

for two, three, or five years.” (§ 213, subd. (a)(2).) Senate Bill 567 amended section

1170 to impose limits on a trial judge’s discretion in choosing between the low, middle,

and upper terms of a sentencing triad. (Stats. 2021, ch. 731.)

22 Senate Bill 567 amended section 1170 effective January 1, 2022.3 (Stats. 2021,

ch. 731.) Before the amendments, if a statute prescribed a sentencing triad, the court had

discretion to choose any one of the three terms. (Stats. 2021, ch. 731; Former § 1170,

subd. (b).) When presented with such a choice now, the court must impose the low term

if the defendant’s youth or another specified mitigating factor (such as the defendant’s

experience of childhood trauma) was “a contributing factor in the commission of the

offense,” “unless the court finds that the aggravating circumstances outweigh the

mitigating circumstances that imposition of the lower term would be contrary to the

interests of justice” (§ 1170, subd. (b)(6)(A)-(B)). A defendant is considered a youth for

purposes of this provision if the defendant was “under 26 years of age on the date the

offense was committed.” (§§ 1016.7, subd. (b), 1170, subd. (b)(6)(B).)

In addition, section 1170 now provides that the upper term shall not be imposed

unless the facts underlying the aggravating circumstances that would justify imposing the

upper term are (1) stipulated to by the defendant, (2) found true by the trier of fact

3 On October 8, 2021, the Governor signed into law three bills that amended section 1170: Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5), Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, § 2), and Senate Bill 567 (Stats. 2021, ch. 731, § 1.3). Senate Bill 567 has the highest chapter number, so we presume that it was the last enacted of the bills. (Gov. Code, § 9510; People v. Gerson (2022) 80 Cal.App.5th 1067, 1074, fn. 2 (Gerson).) Senate Bill 567 incorporates the changes made to section 1170 by the other bills if all three bills were enacted and became effective on or before January 1, 2022, and Senate Bill 567 was the last enacted bill. (Stats. 2021, ch. 731, §3(c).) The conditions were satisfied. Because Senate Bill 567 was enacted after the other two statutes, Senate Bill 567 became the operative legislation. (Stats. 2021, ch. 731, §§ 1.3, 3(c); Gov. Code, § 9605, subdivision (b).) We therefore refer to all of the changes made to section 1170 as deriving from Senate Bill 567.

23 beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified

record of conviction. (§ 1170, subd. (b)(2)-(3).)

Defendants argue that we must remand for resentencing because the trial court’s

imposition of the upper term for Fuller on count 1 and the midterm for Tresvant on

count 1 does not satisfy the new requirements of amended section 1170, which took

effect while their appeal was pending. The People concede that Senate Bill 567 applies

retroactively to this appeal, and we agree. (See, e.g., People v. Flores (2022) 75

Cal.App.5th 495, 500; People v. Garcia (2022) 76 Cal.App.5th 887, 902 (Garcia).)

Both Fuller and Tresvant were 17 years old when the offenses were committed. In

sentencing defendants, the trial court considered defendants’ ages. But the court was not

constrained by Senate Bill 567’s amendments to section 1170 at sentencing, because they

did not yet exist. Thus, the court was not bound by the now-governing presumption

favoring imposition of the low term if defendants’ ages contributed to their commission

of the offenses (§ 1170, subd. (b)(6)(B)), and the court consequently did not determine

whether their ages did contribute.

“When being sentenced, a defendant is entitled to decisions made by a court

exercising informed discretion.” (Tirado, supra, 12 Cal.5th at p. 694; People v. Flores

(2020) 9 Cal.5th 371, 431; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) When, as

here, the trial court did not have the benefit of ameliorative legislation affecting its

sentencing discretion, “‘the appropriate remedy is to remand for resentencing unless the

record “clearly indicate[s]” that the trial court would have reached the same conclusion

24 “even if it had been aware that it had such discretion.”’” (Flores, supra, at p. 432;

Gutierrez, supra, at p. 1391.)

We cannot say that the record clearly indicates that the trial court would impose

the same sentences given the new presumptions and criteria affecting its discretion in

section 1170, subdivision (b). In particular, we cannot say on this record whether the trial

court would conclude that defendants’ ages contributed to their commission of the

offenses so as to trigger the low term presumption in subdivision (b)(6) of section 1170.

Moreover, we also cannot say with confidence what sentences the court would impose if

it applied that presumption. We consequently vacate Fuller’s upper term sentence on

count 1 and Tresvant’s middle term sentence on count 1. (People v. Flores (2022) 73

Cal.App.5th 1032, 1039.)

Because we are vacating defendants’ sentences on count 1, defendants are entitled

to a full resentencing. (Gerson, supra, 80 Cal.App.5th at p. 1096.) Under the full

resentencing rule, “when part of a sentence is stricken on review, on remand for

resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can

exercise its sentencing discretion in light of the changed circumstances.’” (People v.

Buycks (2018) 5 Cal.5th 857, 893; People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.)

The trial court thus will have the opportunity to “revisit all of its sentencing choices in

light of the new legislation.” (Garcia, supra, 76 Cal.App.5th at p. 902.) The sentences

imposed on resentencing may not exceed the original aggregate sentences. (People v.

25 Jones (1994) 24 Cal.App.4th 1780, 1783-1784; People v. Hanson (2000) 23 Cal.4th 355,

357-358.)

We do not address defendants’ other claimed errors about sentencing because the

trial court can address them at resentencing. For example, Fuller will have the

opportunity to present evidence and argument concerning his ability to pay any fines,

fees, and assessments. Tresvant will have the opportunity to reargue that her firearm

enhancement should be stricken and to present evidence and argument about whether the

low term presumption also applies because of childhood trauma. (§ 1170, subd.

(b)(6)(A).) Likewise, we do not address Fuller’s or the People’s arguments concerning

the amendments to subdivision (b)(2) of section 1170 and the court’s imposition of the

upper term sentence for count 1 on Fuller. If the court concludes under subdivision

(b)(6)(B) of section 1170 that Fuller should not be sentenced to the low term, the court

can then consider whether it should sentence Fuller to the upper term in light of the new

requirements of subdivision (b)(2) of section 1170.

D. Lesser Included Firearm Enhancements

Defendants argue that the trial court erred by failing to consider imposing

uncharged lesser included firearm enhancements under section 12022.5(a) rather than

imposing the charged firearm enhancements under section 12022.53(b). In our prior

opinion, we rejected that argument and held that the court was not authorized to impose

an uncharged lesser firearm enhancement. (People v. Moses (July 1, 2021, E071794)

[nonpub.].) The Supreme Court has since held to the contrary in Tirado, supra, 12

26 Cal.5th 688, 692. The People argue that Tirado does not apply here because it applies

only to lesser enhancements under section 12022.53, but we disagree. Thus, on remand,

the court may consider imposing uncharged lesser firearm enhancements under section

12022.5(a).

Section 12022.5(a) provides that “any person who personally uses a firearm in the

commission of a felony or attempted felony shall be punished by an additional and

consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a

firearm is an element of that offense.”

Section 12022.53 creates “a tiered system of sentencing enhancements for

specified felonies involving firearms.” (Tirado, supra, 12 Cal.5th at p. 692.) “Section

12022.53, subdivision (a) lists the felonies to which the section applies. Section

12022.53(b) mandates the imposition of a 10-year enhancement for personal use of a

firearm in the commission of one of those felonies; section 12022.53[, subdivision] (c)

mandates the imposition of a 20-year enhancement for personal and intentional discharge

of a firearm; and section 12022.53[, subdivision] (d) provides for a 25 year-to-life

enhancement for personal and intentional discharge of a firearm causing great bodily

injury or death to a person other than an accomplice.” (Id. at p. 695.) Subdivision (h) of

section 12022.53 provides that under section 1385 a court may, “in the interest of

justice,” “strike or dismiss an enhancement otherwise required to be imposed by this

section.” Subdivision (j) of section 12022.53 provides: “When an enhancement

specified in this section has been admitted or found to be true, the court shall impose

27 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.”

In Tirado, the jury found true a firearm enhancement under section 12022.53,

subdivision (d). (Tirado, supra, 12 Cal.5th at p. 693.) The trial court denied the

defendant’s motion to strike the enhancement. (Id. at p. 694.) On appeal, the defendant

argued that the trial court did not understand that it also had the discretion to impose an

uncharged lesser included enhancement under subdivision (b) or (c) of section 12022.53.

(Tirado, at p. 694.) The Court of Appeal rejected the argument and concluded that the

trial court was not authorized to impose the lesser enhancement. (Ibid.) Another Court

of Appeal had previously reached the opposite conclusion. (People v. Morrison (2019)

34 Cal.App.5th 217, 222-223 (Morrison).)

The Supreme Court granted review to resolve the conflict and agreed with

Morrison, supra, 34 Cal.App.5th 217. (Tirado, supra, 12 Cal.5th at p. 697.) The

Supreme Court “concluded that courts are not categorically prohibited from imposing

uncharged enhancements and that the power to do so is not conditioned on the charged

and adjudicated enhancement being legally or factually inapplicable.” (Id. at p. 699).

Tirado held that even though “the prosecution did not specifically allege enhancements

under section 12022.53(b) or [subdivision] (c), the trial court could impose those

enhancements even when the section 12022.53[, subdivision] (d) enhancement was not

legally or factually inapplicable.” (Id. at p. 697.) Tirado found its conclusion supported

28 by case law concerning a court’s general authority to impose a lesser uncharged

enhancement and by the text of section 12022.53. (Tirado, at p. 697.)

Looking to the relevant case law, Tirado noted its conclusion is consistent with the

general principle “that a court is not categorically prohibited from imposing a lesser

included, uncharged enhancement so long as the prosecution has charged the greater

enhancement and the facts supporting imposition of the lesser enhancement have been

alleged and found true.” (Tirado, supra, 12 Cal.5th at p. 697.) The Supreme Court cited

People v. Strickland (1974) 11 Cal.3d 946 and People v. Fialho (2014) 229 Cal.App.4th

1389 (Fialho), among other cases, as standing for that general principle. In Strickland,

the Supreme Court held that a trial court could impose the lesser uncharged enhancement

in section 12022 when the criteria for the charged enhancement under section 12022.5

were not met. (Strickland, supra, at p. 961; Tirado, at pp. 697-698.) Relying on

Strickland, the Court of Appeal in Fialho held that the trial court did not err by imposing

a lesser uncharged enhancement under section 12022.5(a) when the jury found true an

enhancement under section 12022.53, subdivision (d). (Fialho, supra, at pp. 1395, 1398-

1399; Tirado, at p. 698.) Tirado cited with approval Fialho’s reasoning that “[i]t would

elevate form over substance” “to require ‘a specific lesser included enhancement code

section [to] be pleaded before [the] lesser included enhancement can be imposed.’”

(Tirado, at p. 698.)

Tirado rejected the appellate court’s interpretation of those cases as standing for

the limited principle that a court could impose an uncharged lesser enhancement only

29 when the greater enhancement was not factually or legally supported. (Tirado, supra, 12

Cal.5th at p. 699.) Tirado explained that nothing in the cases “suggests that a trial court’s

power to impose an uncharged enhancement is conditioned on the charged and

adjudicated enhancement being inapplicable. Under those cases, imposition of an

uncharged enhancement is permitted so long as the facts supporting its imposition are

alleged and found true.” (Ibid.)

Tirado next analyzed the language of section 12022.53 to determine whether the

statute limits a court’s discretion to impose an uncharged lesser enhancement. The

Supreme Court concluded that it does not. (Tirado, supra, 12 Cal.5th at pp. 699-700.)

The Supreme Court held: “When an accusatory pleading alleges and the jury finds true

the facts supporting a section 12022.53[, subdivision] (d) enhancement, and the court

determines that the section 12022.53[, subdivision] (d) enhancement should be struck or

dismissed under section 12022.53[, subdivision] (h), the court may, under section

12022.53[, subdivision] (j), impose an enhancement under section 12022.53(b) or

[subdivision] (c).” (Id. at p. 700.) Tirado otherwise stated that “the statutory framework

permits a court to strike the section 12022.53[, subdivision] (d) enhancement found true

by the jury and to impose a lesser uncharged statutory enhancement instead.” (Id. at

p. 692.)

The People argue that Tirado stands for the narrow proposition that a trial court

has discretion to impose uncharged enhancements under section 12022.53 and not those

contained in other statutes, such as section 12022.5(a), which defendants argue is the

30 uncharged lesser the trial court should consider imposing here. We disagree with the

People’s characterization of Tirado.

To support their argument, the People rely on the language of subdivision (j) of

section 12022.53, which provides that when an enhancement under section 12022.53 “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.” We agree that the text suggests that the only lesser enhancement that

may be imposed when an enhancement under section 12022.53 has been found true

would be another enhancement under section 12022.53. But Tirado held that (1)

subdivision (j) of section 12022.53 does not limit a court’s discretion to impose

uncharged lesser enhancements (Tirado, supra, 12 Cal.5th at pp. 699-700), and (2)

“imposition of an uncharged enhancement is permitted so long as the facts supporting its

imposition are alleged and found true” (id. at p. 699). Moreover, the Supreme Court

discussed Fialho with approval, and in that case an uncharged lesser enhancement under

section 12022.5(a) was imposed after an enhancement under section 12022.53 was found

true by the jury. (Tirado, at p. 698; Fialho, supra, 229 Cal.App.4th at pp. 1393-1394.) In

addition, the court rejected the People’s contention “that a trial court’s power to impose

an uncharged enhancement is conditioned on the charged and adjudicated enhancement

being inapplicable.” (Tirado, at p. 699.) For all of these reasons, we interpret Tirado as

standing for the proposition that when only an enhancement under section 12022.53 has

31 been charged and found true, a sentencing court wishing to impose an uncharged lesser

enhancement is not limited to lesser enhancements found within section 12022.53. We

are bound by Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455.)

The People attempt to distinguish Fialho, supra, 229 Cal.App.4th 1389 as “only

reaffirm[ing] the basic principles of notice and opportunity.” But the Supreme Court’s

approving discussion of Fialho was not so limited. Rather, the court described Fialho as

one of the cases illustrating the broad principle that “courts are not categorically

prohibited from imposing uncharged enhancements and that the power to do so is not

conditioned on the charged and adjudicated enhancement being legally or factually

inapplicable.” (Tirado, supra, 12 Cal.5th at pp. 698-699.)

Applying Tirado, we conclude that on remand the trial court may consider

whether to strike defendants’ enhancements under section 12022.53(b) to impose lesser

uncharged enhancements under section 12022.5(a). Given our conclusion that remand

for full resentencing is necessary in light of Senate Bill 567, we need not and do not

address the People’s alternative argument that remand for the trial court to consider

imposing a lesser firearm enhancement would be futile because the record demonstrates

that the trial court would not do so.

32 DISPOSITION

We vacate defendants’ sentences on count 1. The matter is remanded for

resentencing of Fuller and Tresvant consistent with this opinion. In all other respects, the

judgments are affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

MENETREZ J.

I concur:

McKINSTER J.

33 [E071794, The People v. Eric Lavell Fuller, Jr., et al.]

RAMIREZ, P. J., Concurring.

I concur in the judgment and in parts A, B, and C of the Discussion. I also concur

with the conclusion in part D that the trial court has discretion to reduce the charged

enhancements under Penal Code section 12022.53, subdivision (b) to lesser included but

uncharged enhancements under Penal Code section 12022.5, subdivision (a).1 However,

I come to that conclusion, not for the reasons stated in the majority opinion, but as a

matter of straightforward statutory interpretation.

Section 12022.53 was originally enacted in 1997. (Stats. 1997, ch. 503, § 3,

pp. 3135-3138.) Subdivision (j) was part of that original enactment. (Ibid.) It has been

amended once; the amendment made minor wording changes but did not substantively

change its meaning. (Stats. 2006, ch. 901, § 11.1, p. 7077.)

Subdivision (j) consists of two sentences. The first sentence provides: “For the

penalties in this section to apply, the existence of any fact required under subdivision (b),

(c), or (d) shall 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.” The second sentence 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

1 All further references to a section are to a section of the Penal Code. All further references to a subdivision are to a subdivision of Penal Code section 12022.53, unless otherwise specified.

1 than imposing punishment authorized under any other law, unless another enhancement

provides for a greater penalty or a longer term of imprisonment.”

Subdivision (h), in its current form, was enacted in 2017. (Stats. 2017, ch. 682,

§ 2, p. 5106.) As relevant here, it provides: “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.”

In sum, then, the second sentence of subdivision (j) requires the court to “impose

punishment . . . pursuant to this section . . . .” Subdivision (h), however, allows a court to

“strike or dismiss an enhancement otherwise required to be imposed by this section.”

(Italics added.) Thus, subdivision (h) expressly overrides the second sentence of

subdivision (j).

I recognize that “[s]ection 12022.53(h) does not authorize the imposition of any of

section 12022.53’s enhancements; it only authorizes a trial court to ‘strike or dismiss an

enhancement otherwise required to be imposed by this section.’ [Citation.]” (People v.

Tirado (2022) 12 Cal.5th 688, 700, some italics added (Tirado).) Rather, “[s]ection

12022.53(j) is the subdivision that authorizes the imposition of enhancements under

section 12022.53. It provides that for the penalties in section 12022.53 to apply, the

existence of any fact required by section 12022.53(b), (c), or (d) must be alleged in the

accusatory pleading and admitted or found true.” (Ibid., italics added.)2

2 Significantly, Tirado is talking here about the first sentence of subdivision (j).

2 However, just as subdivisions (b), (c), and (d) provide that a defendant who meets

their criteria “shall be punished” by a specified additional term, section 12022.5,

subdivision (a) provides: “[A]ny person who personally uses a firearm in the

commission of a felony or attempted felony shall be punished by an additional and

consecutive term of imprisonment in the state prison for 3, 4, or 10 years . . . .” (Italics

added.)

And just as the first sentence of subdivision (j) provides that the existence of any

fact required under subdivision (b), (c), or (d) must be alleged and either admitted or

found, section 1170.1, subdivision (e), provides: “All enhancements shall 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.” Indeed, the Supreme Court has observed that “subdivision (j) is

simply a restatement of section 1170.1, subdivision (e) . . . .” (People v. Garcia (2002)

28 Cal.4th 1166, 1175; see also People v. Anderson (2020) 9 Cal.5th 946, 953

[subdivision (j) “restates the same basic point” as section 1170.1, subdivision (e).”].)

In other words, subdivision (h) authorizes a trial court to strike all section

12022.53 enhancements, notwithstanding the second sentence of subdivision (j). Then,

once those have been stricken, section 1170.1, subdivision (e) authorizes the same court

to impose an uncharged lesser included enhancement under section 12022.5, subdivision

(a).

The majority opinion similarly concludes that the second sentence of subdivision

(j) is no obstacle, but for different reasons. I find these reasons unpersuasive.

3 First, it says, “Tirado held that . . . subdivision (j) . . . does not limit a court’s

discretion to impose uncharged lesser enhancements (Tirado, supra, 12 Cal.5th at pp.

699-700) . . . .” (Maj. opn. at p. 31.) The cited portion of Tirado, however, was

discussing the first sentence of subdivision (j). The only issue in Tirado was whether a

court could impose a lesser included enhancement under section 12022.53; the Supreme

Court had no occasion to consider the effect of the second sentence of subdivision (j).

“‘It is axiomatic that cases are not authority for propositions not considered.’ [Citation.]”

(People v. Jennings (2010) 50 Cal.4th 616, 684.)

Second, the majority opinion relies on People v. Fialho (2014) 229 Cal.App.4th

1389. (Maj. opn. at p. 31.) There, the jury found true enhancements under subdivision

(d); however, none of the section 12022.53 enhancements applied, because the defendant

had been convicted of completed and attempted voluntary manslaughter, rather than

murder. (Fialho, supra, at pp. 1393-1395.) The appellate court allowed the trial court to

impose enhancements under section 12022.5, subdivision (a) instead. (Fialho, supra, at

pp. 1394-1399.) Fialho did not explain how this could be squared with the second

sentence of subdivision (j). Once again, cases are not authority for propositions not

considered. Possibly Fialho did not see the second sentence of subdivision (j) as an

obstacle because there, the subdivision (d) enhancements were invalid. If so, it is hardly

authority for disregarding subdivision (j) here.

Third, the majority opinion says, “Tirado held that . . . ‘imposition of an

uncharged enhancement is permitted so long as the facts supporting its imposition are

4 alleged and found true’ [citation].” (Maj. opn. at p. 31.) This ignores Tirado’s statement

that it is the first sentence of “[s]ection 12022.53(j) . . . that authorizes the imposition of

enhancements under section 12022.53.” (Tirado at p. 700.) In our case, the first sentence

of subdivision (j) does not apply; hence, it is necessary to find some other source of

statutory authority. As discussed, I find it in sections 12022.5 and 1170.1.

I therefore write separately. RAMIREZ P. J.