Santa Clara County Superior Court Superior Court Case No. CC892980 Honorable Hector E. Ramon
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Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Atorney General, Catherine A. Rivlin and Gregg E. Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Scott Frank Fialho appeals after a jury convicted him of voluntary manslaughter (Pen. Code, § 192, subd. (a)),  attempted voluntary manslaughter (§§ 664, subd. (a), 192, subd. (a)), and carrying a concealed
dirk or dagger (former § 12020, subd. (a)(4)). 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.
A. The Shooting
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” ...