People v. Delavega CA1/1

Filed 5/25/22 P. v. Delavega CA1/1 (opinion on transfer from Supreme Court) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A154936 v. EDUARDO DELAVEGA, (Contra Costa County Super. Ct. No. 5-170874-2) Defendant and Appellant.

Defendant Eduardo Delavega was charged with murder and various enhancements, including three firearm enhancements under Penal Code section 12022.53, subdivisions (b), (c), and (d).1 The jury convicted Delavega of second degree murder and found true the subdivision (d) enhancement, but the verdict form did not reference the subdivision (b) and (c) enhancements. At sentencing, Delavega asked the trial court to exercise its discretion under Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill No. 620) to strike the subdivision (d) enhancement, which carries a term of 25 years to life. The court declined to do so, and it sentenced Delavega to a total term of 40 years to life in prison. On appeal, he argues that the court erred because it refused

All further statutory references are to the Penal Code. In this 1

opinion, we sometimes refer to these three firearm enhancements under section 12022.53 by their respective subdivisions only.

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to strike the subdivision (d) enhancement on the premise that it could only impose or strike that enhancement, not strike that enhancement and impose a lesser enhancement under subdivision (b) or (c). On January 15, 2021, this court issued an opinion affirming the judgment. After reviewing a split in the Courts of Appeal involving the circumstances under which a trial court has the discretion to impose a lesser enhancement when it strikes a greater enhancement under section 12022.53, we concluded that a court lacks discretion to impose a lesser enhancement that was not separately determined to be true. Delavega filed a petition for review in the California Supreme Court, which was granted in April 2021. In January 2022, the Supreme Court resolved the split and held that “[w]hen an accusatory pleading alleges and the jury finds true the facts supporting a [subdivision (d)] enhancement, and the [trial] court determines that . . . enhancement should be struck or dismissed under section 12022.53[, subdivision ](h), the court may, under section 12022.53[, subdivision ](j), impose an enhancement under [subdivision (b)] or (c).” (People v. Tirado (2022) 12 Cal.5th 688, 700 (Tirado).) On April 20, 2022, the Supreme Court remanded this case to us with directions to vacate our prior opinion and reconsider the cause in light of Tirado. Delavega then filed a supplemental opening brief and the Attorney General filed a supplemental responding brief. (See Cal. Rules of Court, rule 8.200(b).) We agree with the parties that under Tirado, the trial court had discretion to strike the subdivision (d) enhancement and impose either the subdivision (b) or (c) enhancement. Thus, we vacate our decision of