People v. Garcia

• Decision Date: 18 March 2020
• Docket Number: B293491
• Citation: 46 Cal.App.5th 786,259 Cal.Rptr.3d 848
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gregory Steven GARCIA, Defendant and Appellant.

46 Cal.App.5th 786

259 Cal.Rptr.3d 848

The PEOPLE, Plaintiff and Respondent,

v.Gregory Steven GARCIA, Defendant and Appellant.

B293491

Court of Appeal, Second District, Division 2, California.

Filed March 18, 2020

Certified for Partial Publication.^*

David Y. Stanley under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, William H. Shin and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

HOFFSTADT, J.

Trial courts now have the discretion to "strike or dismiss" a firearm enhancement pled by the People and found true by a jury beyond a reasonable doubt. ( Pen. Code, § 12022.53, subd. (h).)¹ But does a trial court have the discretion to substitute the firearm enhancement found true by the jury for a lesser enhancement never presented to that jury? So far, the courts have split on the question. People v. Morrison (2019) 34 Cal.App.5th 217, 245 Cal.Rptr.3d 849 ( Morrison ) says "yes," while People v. Tirado (2019) 38 Cal.App.5th 637, 251 Cal.Rptr.3d 412 ( Tirado ), review granted Nov. 13, 2019, No. S257658, says "no." Our Supreme Court has granted review on this question, and we publish to provide additional reasons supporting Tirado ’s position. In the unpublished portion of this opinion, we reject a challenge to the imposition of the restitution fine and court fees but order the trial court to correct a clerical error in the abstract of judgment. But for this correction, we affirm the conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

Gregory Steven Garcia (defendant) went to Xavier Martinez’s apartment, and then fired multiple shots, striking him in the back of the head. Defendant later told his brother that he would get away with it because "they don’t have the burner"—that is, the gun—"[he] used."

II. Procedural Background

The People charged defendant with murder ( Pen. Code, § 187, subd. (a) ). The People further alleged all three firearm enhancements set forth in section 12022.53—namely, that defendant "personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury" ( § 12022.53, subd. (d) ), that he "personally and intentionally discharge[d] a firearm" (id. , subd. (c)), and that he "personally use[d] a firearm" (id. , subd. (b)). The People additionally alleged that the murder was "committed for the benefit of, at the direction of, and in association with a criminal street gang" (§ 186.22, subd. (b)(1)(C)) and that defendant was on bail at the time of the crime (§ 12022.1).

The matter proceeded to trial. The trial court instructed the jury on the crimes of first degree murder, second degree murder, and voluntary manslaughter due to provocation and due to imperfect self-defense as well as the defense of perfect self-defense. The court also instructed on the firearm enhancement for personally and intentionally discharging a firearm and proximately causing great bodily injury, but with the concurrence of the parties did not instruct on either of the lesser included firearm enhancements. The jury convicted defendant of second degree murder and found the firearm enhancement true.²

The trial court sentenced defendant to prison for 40 years to life, comprised of 15 years to life for the second degree murder and a consecutive 25 years to life for the firearm enhancement. The court denied defendant’s motion to strike the firearm enhancement. In so ruling, the court explained how the relative youth of both defendant and the victim made it "incredibly difficult" not to strike the enhancement, but the court ultimately found that it could not "discount" the "compelling fact" that defendant "went to the victim’s home and sought out the victim" in order to kill him. This premeditative conduct, the court reasoned, distinguished this case from "a situation in which" "things happen" when "two young men" "me[e]t up on a street." The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court security fee (§ 1465.8) and a $30 criminal conviction assessment ( Gov. Code, § 70373 ).

Defendant filed a timely appeal.

DISCUSSION

I. Discretion to Substitute Lesser Included Firearm Enhancement

Section 12022.53 creates three firearm enhancements—a 25-year enhancement for "personally and intentionally discharg[ing] a firearm and proximately caus[ing] great bodily injury" ( § 12022.53, subd. (d) ), a 20-year enhancement for "personally and intentionally discharg[ing] a firearm" (but without proximately causing great bodily injury) (id. , subd. (c)), and a 10-year enhancement for "personally us[ing] a firearm" (id. , subd. (b)). That section also grants a trial court the discretion to "strike or dismiss an enhancement" it was "otherwise required to ... impose[ ]" "in the interest of justice pursuant to Section 1385." (Id. , subd. (h).) Defendant argues that the trial court erred in not striking the 25-year enhancement because it mistakenly believed it was faced with an all-or-nothing choice between imposing a 25-year enhancement or no enhancement, when the court also had the option of imposing the lesser included 20-year or 10-year enhancements. The court’s failure to appreciate its discretion, defendant reasons, constituted an abuse of discretion. ( People v. Pearson (2013) 56 Cal.4th 393, 419, 154 Cal.Rptr.3d 541, 297 P.3d 793 [court abuses its discretion when it misunderstands the scope of that discretion].)

Defendant’s argument in this case accordingly presents the same question posed in Morrison , supra , 34 Cal.App.5th 217, 245 Cal.Rptr.3d 849 and Tirado , supra , 38 Cal.App.5th 637, 251 Cal.Rptr.3d 412 : Does section 12022.53, subdivision (h) grant a trial court the discretion not only to "strike or dismiss" a firearm enhancement pled and proven to a jury, but also to substitute a lesser included enhancement? Because this question involves the scope of a trial court’s discretion rather than its exercise, it is a question of law reviewed de novo rather than a question of discretion reviewed solely for an abuse of discretion. (Compare Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773, 149 Cal.Rptr.3d 614, 288 P.3d 1237 ; People v. Waidla (2000) 22 Cal.4th 690, 733, 94 Cal.Rptr.2d 396, 996 P.2d 46 with People v. Carmony (2004) 33 Cal.4th 367, 373, 14 Cal.Rptr.3d 880, 92 P.3d 369.)

We agree with Tirado that section 12022.53, subdivision (h) does not grant a trial court the discretion to substitute lesser included enhancements, at least where the greater enhancement is legally and factually valid. We reach this conclusion for three reasons.

First, this is the result dictated by the statute’s plain language. When interpreting a statute, we start with its text, and if its plain meaning is unambiguous, we end there as well. ( People v. Superior Court (Zamudio ) 23 Cal.4th 183, 192, 96 Cal.Rptr.2d 463, 999 P.2d 686.) Here, section 12022.53, subdivision (h) confers the authority to "strike or dismiss" a firearm enhancement set forth in section 12022.53. Significantly, it says nothing about substituting or modifying enhancements. ( § 12022.53, subd. (h).) The act of striking an allegation and the act of substituting or modifying one allegation for another are not fungible. (See Kitte v. Bellegarde (1890) 86 Cal. 556, 563, 25 P. 55 [substitution of a party plaintiff is different from striking parties].) When our Legislature has wanted to grant a court the power to modify one crime or enhancement for another—or, more to the point, to substitute a lesser crime or enhancement for another—it has done so expressly. (§ 1181, subd. (6) [granting trial court’s the power to "modify the verdict" to substitute a "lesser degree" of a "crime of which he was convicted" if "the verdict or finding" on the greater crime is "contrary to ... the evidence"], § 1260 [granting appellate courts the power to "reverse, affirm or modify a judgment or order appealed from, or reduce the degree of the offense ... or the punishment imposed ..."].) The Legislature’s failure to include such language in section 12022.53, subdivision (h) speaks volumes ( Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 727, 122 Cal.Rptr.3d 331, 248 P.3d 1185 ["failure to include a requirement in one statute is significant when the legislative body has included that requirement in other statutes"] ), and must be given effect (accord, People v. VonWahlde (2016) 3 Cal.App.5th 1187, 1197-1198, 220 Cal.Rptr.3d 337 [section 1385 does not include discretion to terminate parole because it falls outside the discretion to "dismiss" an "action" conferred by the statute’s plain text]; People v. Tuck (2012) 204 Cal.App.4th 724, 730-731, 139 Cal.Rptr.3d 407 [same, as to sex offender registration] ). Thus, defendant is effectively inviting us to amend section 12022.53, subdivision (h) by changing "strike or dismiss" to "strike, dismiss or modify." This is an invitation we must decline. ( People v. Superior Court (Pearson ) (2010) 48 Cal.4th 564, 571, 107 Cal.Rptr.3d 265, 227 P.3d 858 [courts "may not add to the statute or rewrite it"].)

Second, this is the result dictated by the separation of powers absent a legislative override. The decision of what charges to bring (or not to bring)—and, more to the point here, which sentencing enhancement to allege (or not to allege)—ordinarily belongs to the prosecutors who are charged with executing our state’s criminal law. ( People v. Birks (1998) 19 Cal.4th 108, 134, 77 Cal.Rptr.2d 848, 960 P.2d 1073 [so noting] ( Birks ); People v. Jerez (1989) 208 Cal.App.3d 132, 138, 256 Cal.Rptr. 31 ["the district attorney can allege what he chooses at the time he chooses ..."]; see generally, Gov. Code, § 26501 [vesting "district attorney" with the power to "institute proceedings" against persons "reasonably suspected of public offenses"].) The prosecutor’s charging authority "includes" the...