Unreported / Non-Citable
Background
Victor Erick Carrillo was convicted by a jury of attempted murder, assault with a semiautomatic firearm, evading while driving recklessly, and firearm possession offenses stemming from a drive-by assault on a bicyclist in Santa Ana. The jury found true allegations that Carrillo personally and intentionally discharged a firearm under Penal Code section 12022.53, subdivision (c), and personally used a firearm under section 12022.5, subdivision (a), both in connection with the attempted murder count.
At sentencing, the trial court struck a separate bail enhancement under section 1385 but declined to impose the 20-year enhancement under section 12022.53, subdivision (c). Citing Carrillo's youth and the fact that imposing the enhancement would result in a sentence of more than 20 years, the court instead imposed a 10-year enhancement under section 12022.5, subdivision (a), and stayed the 20-year enhancement pursuant to section 654. The court imposed a total term of seven years to life, plus 10 years under section 12022.5, subdivision (a). Carrillo appealed, arguing the court erred by staying rather than striking the longer enhancement.
The Court’s Holding
The Court of Appeal agreed with Carrillo and held that the trial court lacked authority to stay the 20-year enhancement under section 654. The court explained that section 654 applies to offenses punishable in different ways, not to prohibited firearm enhancements. Under section 12022.53, subdivision (f), when multiple firearm enhancements are found true for a single crime, the court must impose the enhancement providing the longest term of imprisonment. Lesser enhancements may be imposed and stayed, but the longest enhancement cannot be stayed in favor of a lesser one.
The court rejected the Attorney General's arguments of invited error and forfeiture. It found no invited error because defense counsel's request to stay the firearm enhancements was tied to a request to be sentenced on a different count, not a deliberate tactical choice regarding count one. It found no forfeiture because the trial court's statements indicated it was aware of its discretion under section 1385, subdivision (c)(2)(C), which directs dismissal of an enhancement if it would result in a sentence over 20 years. The court concluded that if the trial court did not wish to impose the longer enhancement for that reason, it was required to strike it under section 1385 first, then impose the remaining enhancement with the longest term.
The court reversed the judgment and remanded for resentencing with instructions to strike the section 12022.53, subdivision (c) enhancement. In all other respects, the judgment was affirmed.
Key Takeaways
- A trial court cannot stay the longest firearm enhancement under Penal Code section 654 in order to impose a lesser enhancement; section 654 does not apply to prohibited firearm enhancements.
- Under section 12022.53, subdivision (f), when multiple firearm enhancements are found true for a single crime, the court must impose the enhancement with the longest term of imprisonment.
- If a trial court declines to impose a longer enhancement because it would result in a sentence over 20 years, it must strike the enhancement under section 1385, subdivision (c)(2)(C), rather than stay it.
- A defendant does not forfeit a challenge to an unauthorized sentence by failing to object in the trial court.
- The invited error doctrine does not apply where defense counsel's request was not a deliberate tactical choice related to the specific count at issue.
Why It Matters
This opinion clarifies the proper procedure for trial courts when multiple firearm enhancements are found true and the court wishes to avoid imposing the longest enhancement due to mitigating circumstances. It reinforces that section 12022.53's objective of ensuring defendants who use a gun remain in prison for the longest time possible cannot be circumvented by staying the longest enhancement under section 654.
The decision also provides guidance on the application of the invited error and forfeiture doctrines in the sentencing context, particularly where a trial court's statements suggest awareness of its statutory discretion even when the correct provision is not expressly cited.