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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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,

v.

EDUARDO DELAVEGA,

Defendant and Appellant.

 A154936

 (Contra Costa County

 Super. Ct. No. 5-170874-2)

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 

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

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 
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January 15, 2021, and remand for the court to determine whether to strike 

the subdivision (d) enhancement and impose a lesser enhancement instead.2

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A detailed discussion of the facts is unnecessary to our resolution of 

the appeal. Briefly, however, Delavega got into a fist fight with Justin Kroh

in August 2014. Later that month, Delavega, who was then 18 years old, and 

a friend were driving in Antioch when they spotted Kroh riding a bicycle on 

the opposite side of the road. Delavega, who testified in his own defense,

heard Kroh ask if he was ready for another fight, and Delavega instructed his 

friend to make a U-turn. 

Delavega’s friend parked, and Delavega got out of the vehicle and 

approached Kroh. After a brief confrontation during which Delavega claimed 

Kroh pulled a knife, Delavega shot at Kroh, striking him in the head. 

Delavega and his friend fled the scene, and Kroh later died of his injuries. 

Delavega was charged with murder and various enhancements. One 

alleged a gang special circumstance, and another alleged that Delavega

committed the offense for the benefit of a street gang.

3 In addition, Delavega 

was charged with intentionally discharging a firearm causing death under 

2 In conjunction with this appeal, Delavega filed a petition for a writ of 

habeas corpus in which he argued that his trial counsel was ineffective for 

telling the trial court that it did not have the option to impose a lesser 

enhancement under section 12022.53. Our prior opinion concluded that 

Delavega did not thereby forfeit his claim of error, and we denied the habeas 

petition by separate order. (In re Eduardo Delavega (Jan. 15, 2021, 

A157982).) He did not seek review of the habeas order, and the Supreme

Court’s order in this matter does not affect it.

3 Murder was charged under section 187, subdivision (a), and the gang 

special circumstance was alleged under section 190.2, subdivision (a)(22). 

The other gang allegation was under section 186.22, subdivision (b)(1)(C). 
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subdivision (d), personally and intentionally discharging a firearm under 

subdivision (c), and personally using a firearm under subdivision (b). 

Allegations were also made under section 12022.53, subdivision (e), 

pertaining to firearm use during a gang-related crime. 

The jury acquitted Delavega of first degree murder, rendering a finding 

on the gang special circumstance unnecessary (see § 190.2, subd. (a)), but it 

found him guilty of second degree murder. It also found the remaining 

separate gang allegation untrue, rendering unnecessary a finding on the

firearm allegations under section 12022.53, subdivision (e) (see §§ 186.22, 

subd. (b), 12022.53, subd. (e)(1)(A)). Finally, the jury found true that 

Delavega “personally and intentionally discharged a firearm, . . . which 

proximately caused great bodily injury and death to Justin Kroh, a violation 

of Penal Code Section 12022.53(d).” The verdict form did not include 

separate spaces for findings under subdivision (b) or (c) of section 12022.53 or 

reference either of those subdivisions.

At the May 2018 sentencing hearing, Delavega asked the trial court to 

exercise its discretion under section 12022.53, subdivision (h)

(section 12022.53(h)) to strike the enhancement of 25 years to life under 

subdivision (d) and impose a total term of 15 years to life for the murder. In 

addressing the request, the court agreed with Delavega’s trial counsel that it 

had only “two choices, the 15 to life . . . or the 40 to life, and that’s it. There’s 

no in between. There’s no splitting the difference. Those are the options that 

face the Court.” Concluding that it was not “justifiable” to strike the

enhancement, the court imposed a total term of 40 years to life.

II.

DISCUSSION

Section 12022.53 establishes three sentencing enhancements of varying 

lengths for the personal use of a firearm during the commission of certain 
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felonies. Specifically, subdivision (b) requires a 10-year enhancement for the 

personal use of a firearm during a qualifying offense, subdivision (c) requires

a 20-year enhancement if the firearm is personally and intentionally 

discharged, and subdivision (d) requires a 25-years-to-life enhancement if the 

firearm is personally and intentionally discharged and proximately causes 

great bodily injury or death. Subdivisions (b) and (c) are lesser 

enhancements of subdivision (d) in the sense that a true finding under 

subdivision (d) amounts to a true finding under the other two subdivisions. 

(See Tirado, supra, 12 Cal.5th at p. 696; People v. Morrison (2019) 

34 Cal.App.5th 217, 222.) For any of these enhancements to be imposed, the 

requisite facts must “be alleged in the accusatory pleading and either 

admitted by the defendant in open court or found to be true by the trier of 

fact.” (§ 12022.53, subd. (j); Tirado, at p. 695.) 

Senate Bill No. 620 amended section 12022.53(h), which previously 

prohibited sentencing courts from striking a firearm enhancement found true 

under the statute. (Tirado, supra, 12 Cal.5th at pp. 695–696.) Effective 

January 1, 2018, subdivision (h) now provides that a sentencing court “may, 

in the interest of justice pursuant to Section 1385 and at the time of 

sentencing, strike or dismiss an enhancement otherwise required to be 

imposed by this section.” (§ 12022.53(h); Tirado, at pp. 695–696.)

The Attorney General argues in both his original and supplemental 

briefing that Delavega forfeited the claim about the trial court’s application of 

section 12022.53(h). Generally, “[a] party in a criminal case may not, on 

appeal, raise ‘claims involving the trial court’s failure to properly make or 

articulate its discretionary sentencing choices’ if the party did not object to 

the sentence at trial.” (People v. Gonzalez (2003) 31 Cal.4th 745, 751.) But as 

we explained in our prior opinion, at the time of Delavega’s sentencing the 
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contours of a trial court’s authority under amended section 12022.53(h) were 

unsettled. Thus, we would not have expected competent and knowledgeable 

counsel to anticipate Tirado’s holding and ask the court to impose a lesser 

enhancement under section 12022.53, and trial counsel’s failure to make such 

a request is excused. (See People v. Perez (2020) 9 Cal.5th 1, 8.) Moreover, 

even if Delavega had forfeited the claim, we would exercise our discretion to 

decide it. (See People v. Anderson (2020) 9 Cal.5th 946, 963.) Therefore, we 

again address Delavega’s claim on the merits.

Tirado decisively establishes that the trial court has the discretion to 

strike the subdivision (d) enhancement and impose a lesser enhancement 

under subdivision (b) or (c), since by finding the greater enhancement true 

the jury necessarily found true facts supporting the lesser enhancements.

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(See Tirado, supra, 12 Cal.5th at p. 700.) In addition, it is clear the court 

“ ‘proceeded with sentencing on the . . . assumption it lacked [such] 

discretion’ ” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425), since the 

court stated its only choices were to strike the subdivision (d) enhancement 

and sentence Delavega to 15 years to life or to impose that enhancement and 

sentence him to 40 years to life. And finally, the court did not “clearly 

indicate[]” it would have declined to impose one of the lesser enhancements 

even if it believed it had discretion to do so. (McDaniels, at p. 425.) 

Therefore, a remand is required for the court to exercise its discretion as 

clarified by Tirado. We express no opinion on how the court should do so.

4 Relying on People v. McDavid (2022) 77 Cal.App.5th 763, Delavega 

argues that under Tirado the trial court also has discretion to strike the 

subdivision (d) enhancement and impose an enhancement under 

section 12022.5, subdivision (a). We agree with the Attorney General that 

the claim is premature, and we need not resolve it at this juncture.
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III.

DISPOSITION

The case is remanded for the trial court to consider whether to strike 

the enhancement under section 12022.53, subdivision (d), and impose a lesser 

enhancement. The judgment is otherwise affirmed.
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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Banke, J.

_________________________

Wiss, J. *

*Judge of the Superior Court of the City and County of San Francisco, 

assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.

People v. Delavega (On Remand) A154936