Fialho

I. INTRODUCTION

Defendant Scott Frank Fialho appeals after a jury convicted him of voluntary manslaughter (Pen. Code, § 192, subd. (a)), 1 attempted voluntary manslaughter (§§ 664, subd. (a), 192, subd. (a)), and carrying a concealed *1392 dirk or dagger (former § 12020, subd. (a)(4)). 2 The jury found true allegations that, in the commission of the voluntary manslaughter and attempted voluntary manslaughter, defendant personally and intentionally discharged a firearm and proximately caused death and great bodily injury. (Former § 12022.53, subd. (d); § 12022.53 was repealed in 2010 operative Jan. 1, 2012, and reenacted eff. Jan. 1, 2012. All references are to former § 12022.53.) However, because section 12022.53 does not apply to voluntary manslaughter or attempted voluntary manslaughter, the trial court imposed enhancements for personal use of a firearm (former § 12022.5, subd. (a)) instead of the section 12022.53, subdivision (d) enhancements. Defendant was sentenced to a 26-year prison term.

On appeal, defendant contends we should vacate the jury’s findings on the section 12022.53, subdivision (d) allegations and strike the personal firearm use enhancements imposed…

I respectfully concur in the judgment only. I agree with my colleagues that defendant’s 26-year sentence—which included firearm enhancements adding more than 13 years to defendant’s base terms— must be affirmed. But in my view, defendant’s argument that the trial court erred when it imposed sentences on Penal Code former section 12022.5 1 firearm enhancements that were not alleged in the accusatory pleading has merit.

Defendant’s argument is based on section 1170.1, subdivision (e). That statute plainly says, “AZZ 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.” (Italics added.) Here, count one of the accusatory pleading alleged that defendant “personally and intentionally discharged a firearm, a(n) [szc] handgun, and proximately caused, the death of Huber Vírelas, a person other than an accomplice within the meaning of Penal Code sections 12022.53(d) [and 12022.53(c) and 12022.53(b)].” (Italics added.) 2 And the jury subsequently found that defendant “personally and intentionally discharged a firearm, a handgun, and proximately caused, the death of Huber Vírelas, a person other…

I. INTRODUCTION

Defendant Scott Frank Fialho appeals after a jury convicted him of voluntary manslaughter (Pen. Code, § 192, subd. (a)),1 attempted voluntary manslaughter (§§ 664, subd. (a), 192, subd. (a)), and carrying a concealed dirk or dagger (former § 12020, subd. (a)(4)2). The jury found true allegations that, in the commission of the voluntary manslaughter and attempted voluntary manslaughter, defendant personally and intentionally discharged a firearm and proximately caused death and great bodily injury. (§ 12022.53, subd. (d).) However, because section 12022.53 does not apply to voluntary manslaughter or attempted voluntary manslaughter, the trial court imposed enhancements

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 The crime of carrying a concealed dirk or dagger is now proscribed by section 21310. (See Stats. 2004, ch. 247, § 7; Stats. 2010, ch. 711, § 6.) for personal use of a firearm (§ 12022.5, subd. (a)) instead of the section 12022.53, subdivision (d) enhancements. Defendant was sentenced to a 26-year prison term. On appeal, defendant contends we should vacate the jury’s findings on the section 12022.53,…