People v. Delavega
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Delavega was charged with murder with three firearm enhancements under Penal Code section 12022.53(b), (c), and (d). The subdivision (d) enhancement applies when a defendant is found to have personally and intentionally discharged a firearm causing death; subdivision (b) applies when a defendant is found to have personally used a firearm; subdivision (c) applies when a defendant is found to have intentionally discharged a firearm. The (b) and (c) enhancements are lesser included enhancements of the (d) enhancement. A defendant who violates subdivision (d) necessarily violates (b) and (c). The verdict forms did not reference the subdivisions (b) and (c). The jury made no finding as to either. The jury convicted Delavega of second-degree murder and found true the subdivision (d) enhancement.
Delavega asked the court to exercise its discretion under Senate Bill 620 to strike the subdivision (d) enhancement, which carries a term of 25 years to life. The court declined and sentenced Delavega to 40 years to life in prison, stating that it had only “two choices, the 15 to life . . . or the 40 to life .... There’s no splitting the difference” and that it was not “justifiable” to strike the enhancement. The court of appeal affirmed. When 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.
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