People v. Fialho
Annotate this CaseFialho was convicted of voluntary manslaughter (Pen. Code 192 (a)), attempted voluntary manslaughter (664 (a), 192 (a)), and carrying a concealed dirk or dagger (former 12020(a)(4)). The jury found that Fialho had personally and intentionally discharged a firearm and proximately caused death and great bodily injury, (12022.53(d)), but, 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 (12022.5 (a)) instead of the section 12022.53 (d) enhancements. Defendant was sentenced to a 26-year prison term. The court of appeals affirmed. The prosecution is not required to plead lesser included offenses and it would be incongruous to require the prosecution to plead lesser included enhancements that would apply only to lesser included offenses. Even if the statute stated that all enhancements must be alleged in the accusatory pleading by specific code section, the error would be harmless.
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