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Court Has Discretion to Impose Lesser Included Uncharged Enhancement

California v. Fuller Court: California Courts of Appeal, Docket: E071794 (Fourth Appellate District), Opinion Date: September 15, 2022. In this appeal, the State argued that a sentencing court’s discretion under California v. Tirado, 12 Cal.5th 688 (2022) was limited to imposing a lesser enhancement under Penal Code section 12022.53, so a court that strikes an enhancement under section 12022.53 cannot impose an uncharged lesser included enhancement under section 12022.5. The Court of Appeal disagreed, holding that under Tirado the sentencing court may impose an uncharged lesser included enhancement under section 12022.5 after striking a greater enhancement under section 12022.53.


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