Tirado

People v. Tirado

Bad Law
251 Cal. Rptr. 3d 412·38 Cal. App. 5th 637
Court of Appeal of CaliforniaAugust 12, 2019F076836California2,531 words

Opinion

Lead Opinion

Detjen, J.

*639 Jose Guadalupe Tirado (defendant) was, in pertinent part, charged with robbery. It was alleged he personally and intentionally discharged a firearm, which proximately caused great bodily injury to another person. ( Pen. Code, 1 § 12022.53, subd. (d).) The jury found him guilty of robbery and found the enhancement true. At sentencing, the trial court denied defendant's motion to strike or dismiss the firearm enhancement pursuant to section 1385.

On appeal, defendant claims the trial court was unaware of its discretion to substitute, for the section 12022.53, subdivision (d) enhancement, a different enhancement within the same section ( § 12022.53, subds. (b) or (c) ).

*640 The only section 12022.53 enhancement charged and found true by the trier of fact was subdivision (d). We conclude that, although the trial court had the discretion to strike or dismiss that enhancement pursuant to sections 1385 and 12022.53, subdivision (h), it did not have the discretion to substitute another enhancement for it. We, therefore, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

During the early morning hours of April 10, 2016, Brian P. 2 was inside a convenience store. Defendant and his…

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