People v. Fialho

• Decision Date: 01 January 2014
• Docket Number: H038119
• Citation: 178 Cal.Rptr.3d 1,229 Cal.App.4th 1389
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Scott Frank FIALHO, Defendant and Appellant.

229 Cal.App.4th 1389

178 Cal.Rptr.3d 1

The PEOPLE, Plaintiff and Respondent,

v.Scott Frank FIALHO, Defendant and Appellant.

H038119

Court of Appeal,

Sixth District, California.

Filed 9/23/2014

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 358.

Santa Clara County Superior Court Superior Court Case No. CC892980, Honorable Hector E. Ramon. (Santa Clara County Super. Ct. No. CC892980)

Gordon S. Brown, Esq., Attorney for Defendant and Appellant.

Gregg E. Zywicke, Esq., Office of the Attorney General, Attorney for Plaintiff and Respondent.

BAMATTRE–MANOUKIAN, ACTING P.J.

I. INTRODUCTION

Defendant Scott Frank Fialho appeals after a jury convicted him of voluntary manslaughter (Pen.Code, § 192, subd. (a)),¹ attempted voluntary manslaughter (§§ 664, subd. (a), 192, subd. (a)), and carrying a concealed dirk or dagger (former § 12020, subd. (a)(4) ²). The jury found true allegations that, in the commission of the voluntary manslaughter and attempted voluntary manslaughter, defendant personally and intentionally discharged a firearm and proximately caused death and great bodily injury. (§ 12022.53, subd. (d).) However, 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, subd. (a)) instead of the section 12022.53, subdivision (d) enhancements. Defendant was sentenced to a 26–year prison term.

On appeal, defendant contends we should vacate the jury's findings on the section 12022.53, subdivision (d) allegations and strike the personal firearm use enhancements imposed pursuant to section 12022.5, subdivision (a) because there were no section 12022.5, subdivision (a) allegations in the information and those allegations were not found true by the jury. We will affirm the judgment.

II. BACKGROUND

A. The Shooting³

On December 5, 2007, San Jose Police officers were dispatched to an apartment complex in San Jose, where they found 19–year–old Huber Virelas lying on the ground with a gunshot wound to his left eye. The police also found 25–year–old Roberto Jaime on the ground with gunshot wounds in his arm, chest, abdomen, and back. The two victims were transported to the hospital, and Virelas subsequently died.

Prior to the shooting, a witness heard defendant ask Virelas “ ‘Do you bang?’ ” and saw defendant pull out a handgun and shoot Virelas in the head. The witness also saw defendant shoot Jaime.

According to another witness, defendant—a Norteño gang member—believed the two victims—both Sureño gang members—had been “ ‘mugging’ ” him prior to the shooting.

At defendant's residence, police found bloody items, “items indicative of gang activity,” and a bullet.

Defendant was arrested on January 16, 2008. Defendant attempted to flee when officers arrived at his location in an attempt to contact him. Defendant had a large knife on his person at the time of his arrest.

At trial, defendant testified that he reached for his gun only after seeing one of the victims pull something out of his jacket pocket; he was “scared for [his] life” and felt he “had to protect [him]self.”

B. Charges

Defendant was charged with murder (§ 187, subd. (a); count 1), attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), exhibiting a firearm (§ 417, subd. (a)(2); count 3), carrying a concealed dirk or dagger (former § 12020, subd. (a)(4); count 4), and resisting an officer (§ 148, subd. (a)(1); count 5).

As to the murder charged in count 1, the first amended information alleged that defendant was an active participant in a criminal street gang and that the murder was carried out to further the gang's activities (§ 190.2, subd. (a)(22)), that defendant personally and intentionally discharged a firearm and proximately caused death (§ 12022.53, subd. (d)), and that defendant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).

As to the attempted murder charged in count 2, the first amended information alleged that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury (§ 12022.53, subd. (d)) and that defendant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).

The first amended information also alleged that defendant committed counts 3, 4, and 5 for the benefit of a criminal street gang. (§ 186.22, subds. (b)(1)(A) & (d).)

C. Verdicts

In count 1, the jury found defendant not guilty of first degree murder and not guilty of second degree murder, but it found him guilty of voluntary manslaughter. (§ 192, subd. (a).) The jury found true the allegation that defendant personally and intentionally discharged a firearm and proximately caused death (§ 12022.53, subd. (d)), but it found not true the allegation that defendant committed the offense for the benefit of a criminal street gang.

In count 2, the jury found defendant not guilty of attempted murder, but it found him guilty of attempted voluntary manslaughter. (§§ 664, subd. (a), 192, subd. (a).) The jury found true the allegation that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury (§ 12022.53, subd. (d)), but it found not true the allegation that defendant committed the offense for the benefit of a criminal street gang.

In count 3, the jury found defendant not guilty of exhibiting a firearm.

In count 4, the jury found defendant guilty of carrying a concealed dirk or dagger (former § 12020, subd. (a)(4)), but it found not true the allegation that defendant committed the offense for the benefit of a criminal street gang.

In count 5, the jury found defendant guilty of resisting an officer (§ 148, subd. (a)(1)), but it found not true the allegation that defendant committed the offense for the benefit of a criminal street gang.

D. Sentencing

The probation report noted that the jury had found true the allegations under section 12022.53, subdivision (d), but that “as the defendant was found guilty of the lesser offenses of Sections 192(a) and 664/192(a) of the Penal Code, this allegation can not be found true as these lesser offenses are not crimes listed in Section 12022.53(a) of the Penal Code....” The probation officer stated that according to the prosecutor, “these allegations revert to Section 12022.5(a) of the Penal Code.”

On November 18, 2011, the trial court sentenced defendant to the upper term of 11 years for count 1 (voluntary manslaughter) with a consecutive upper term of 10 years for personal firearm use pursuant to section 12022.5, subdivision (a). For count 2 (attempted voluntary manslaughter), the trial court imposed a consecutive term of one year (one-third of the midterm) and a consecutive term of three years four months (one-third of the upper term) for personal firearm use pursuant to section 12022.5, subdivision (a). For count 4 (carrying a concealed dirk or dagger), the trial court imposed a consecutive term of eight months (one-third of the midterm). The aggregate prison term was 26 years.

On December 2, 2011, the trial court recalled defendant's sentence (see § 1170, subd. (d)) in order to “do a better job of stating the reasons for each one of its sentencing decisions.”

On March 23, 2012, the trial court reimposed the 26–year sentence.

III. DISCUSSION

Defendant contends we should vacate the jury's findings on the section 12022.53, subdivision (d) allegations, because section 12022.53 does not apply to voluntary manslaughter or attempted voluntary manslaughter. He further contends we should strike the enhancements for personal use of a firearm (§ 12022.5, subd. (a)) because there were no section 12022.5, subdivision (a) allegations in the information and those allegations were not found true by the jury.

Defendant is correct that section 12022.53 applies to an enumerated list of felony offenses, which does not include voluntary manslaughter or attempted voluntary manslaughter.⁴ Thus, the jury here was improperly instructed to determine the truth of the section 12022.53 allegations if, in counts 1 and 2, it found defendant guilty of voluntary manslaughter and attempted voluntary manslaughter.⁵

Defendant concedes the evidence established that he “use[d]” a firearm within the meaning of section 12022.5, subdivision (a).⁶ He further concedes that “sufficient evidence would have supported enhancement allegations under section 12022.5, subdivision (a), as to counts 1 and 2, if such allegations had been made.”

Defendant also concedes there is precedent in case law for imposition of uncharged but “ ‘lesser included enhancements' ” (see People v. Majors (1998) 18 Cal.4th 385, 410, 75 Cal.Rptr.2d 684, 956 P.2d 1137 (Majors )) when the original enhancement allegation is either factually unsupported or—as here—does not apply to the offense of conviction under the applicable statutory provisions. In fact, the California Supreme Court has expressly permitted substitution of a charged enhancement with an uncharged enhancement that “would be applicable in any case” in which the charged enhancement applies. (People v. Strickland (1974) 11 Cal.3d 946, 961, 114 Cal.Rptr. 632, 523 P.2d 672 (Strickland ).) In Strickland, the defendant was charged with murder, but he was convicted of voluntary manslaughter, a lesser included offense. The jury found true a firearm use allegation under section 12022.5, which at that time applied to murder but not manslaughter, so the trial court had improperly imposed that enhancement. (Id. at p. 959, 114 Cal.Rptr. 632, 523 P.2d 672.) The California Supreme Court instead imposed an arming enhancement under section 12022, explaining, “ ‘In the present case appellant did not come within the provisions of section 12022.5, as the crime of which he was convicted was not specified in that section, but the jury did find that he used and thus was armed with a firearm, a shotgun, at the time the offense was committed. Appellant was charged in...