People v. Tirado CA5

Filed 4/20/22 P. v. Tirado CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F076836 Plaintiff and Respondent, (Super. Ct. No. BF163811A) v.

JOSE GUADALUPE TIRADO, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Julie A. Hokans, and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION In People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado I), we concluded the trial court did not have discretion under Penal Code1 sections 1385 and 12022.53, subdivision (h) (§ 12022.53(h)) to substitute a section 12022.53, subdivision (d) (§ 12022.53(d)) enhancement for a different enhancement. (Tirado I, at p. 640.) In People v. Tirado (2022) 12 Cal.5th 688, the Supreme Court reversed our judgment, holding that “the statutory framework permits a court to strike the section 12022.53(d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead.” (Id. at p. 692.) The Supreme Court remanded the matter to this court “to address the People’s unresolved forfeiture argument . . . and for any further proceedings not inconsistent with this opinion.” (Id. at p. 702.) Following remand, we granted defendant Jose Guadalupe Tirado’s request to file supplemental briefing. Defendant contends the matter should be remanded to the trial court for resentencing consistent with Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill No. 124). The People concede defendant is entitled to remand and resentencing and, because of that, their forfeiture issue is moot. We accept the People’s concession and remand the matter to the trial court for resentencing. FACTUAL AND PROCEDURAL BACKGROUND A jury convicted defendant of the following offenses and enhancements: count 2 – robbery (§ 212.5, subd. (c)), with an enhancement for personal discharge of a firearm causing great bodily injury (§ 12022.53(d)); count 5 – misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)); and count 6 – assault with a semiautomatic firearm (§ 245, subd. (b)), with enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and personal use of a firearm (§ 12022.5, subd. (a)).