__________________________

* Presiding Justice of the Court of Appeal, Second Appellate 

District, Division Seven, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.

IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE GUADALUPE TIRADO,

Defendant and Appellant.

S257658

Fifth Appellate District

F076836

Kern County Superior Court

BF163811A

January 20, 2022

Justice Corrigan authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Liu, Kruger, 

Groban, Jenkins, and Perluss* concurred.
1

PEOPLE v. TIRADO

S257658

Opinion of the Court by Corrigan, J.

Penal Code section 12022.53 establishes a tiered system of 

sentencing enhancements for specified felonies involving 

firearms.

1

 Section 12022.53, subdivision (h) (section 

12022.53(h)) authorizes courts to strike certain enhancements 

in the interests of justice under the authority of section 1385. 

Here we consider the scope of that authority when the 

prosecution has alleged, and the jury has found true, the facts 

supporting an enhancement under section 12022.53, subdivision 

(d) (section 12022.53(d)). The question is what the court may do 

if it decides to strike that enhancement. May the court impose 

a lesser uncharged enhancement under either section 12022.53, 

subdivision (b) (section 12022.53(b)) or section 12022.53, 

subdivision (c) (section 12022.53(c))? Or is the court limited to 

imposing the section 12022.53(d) enhancement or striking it? 

We conclude the statutory framework permits a court to strike 

the section 12022.53(d) enhancement found true by the jury and 

to impose a lesser uncharged statutory enhancement instead.

I. BACKGROUND

Brian Phillips was in a Bakersfield convenience store

when defendant Jose Guadalupe Tirado and Anthony Aldaco

walked in. As Aldaco tried to steal a case of beer, Phillips 

1 Further unspecified section references are to the Penal 

Code.
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

2

intervened and the two men wrestled on the floor. During the 

struggle, defendant walked behind Phillips and shot him in the 

back with a semiautomatic pistol. Defendant and Aldaco ran 

out with the beer, but defendant was arrested later the same 

morning. Although Phillips survived the shooting, a bullet 

fractured his hip. He required surgery and had to use a walker 

for a month thereafter. He continued to suffer from pain and 

neuropathy in his foot. 

The Kern County District Attorney’s Office charged 

defendant with attempted murder, second degree robbery, 

participation in a criminal street gang, carrying a loaded 

firearm while a participant in a criminal street gang, assault 

with a semiautomatic firearm, and misdemeanor driving under 

the influence of alcohol.

2

 Enhancements were added to the 

attempted murder and robbery counts, alleging defendant 

personally discharged a firearm, causing great bodily injury. 

(§ 12022.53(d).)

3

 The counts for gang participation and carrying 

a loaded gun were dismissed before trial. A jury convicted 

defendant of second degree robbery, assault with a 

semiautomatic firearm, and driving under the influence. It also 

found true the firearm use enhancements on the robbery and 

assault counts (§§ 12022.53(d), 12022.5, subd. (a)), as well as the 

2

(§§ 664, 187, subd. (a), 211, 212.5, subd. (c), 186.22, subd. 

(a), 25850, subd. (c)(3), 245, subd. (b); Veh. Code, § 23152, subd. 

(a).) 

3 The information also alleged: (1) gang participation 

enhancements under section 186.22, subdivision (b)(1), as to the 

counts for attempted murder, robbery, and assault; (2) a firearm 

use enhancement under section 12022.5, subdivision (a), as to 

the assault count; and (3) a bodily injury enhancement under 

section 12022.7, subdivision (a), as to the assault count. 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

3

bodily injury enhancement on the assault count (§ 12022.7, 

subd. (a)).

4

 

Before sentencing, defendant moved under section 

12022.53(h) to strike the firearm use enhancement under 

section 12022.53(d). He argued the interests of justice would not 

be served by imposing the 25 years-to-life sentence required by 

section 12022.53(d).

5

 He urged that, even if the court struck the 

section 12022.53(d) enhancement, it could still impose a 

sentence of ten years or longer based on the remaining charges 

and enhancements. The court denied defendant’s motion.

6

 

It sentenced defendant to the midterm of three years for 

robbery with a 25-years-to-life enhancement under section 

12022.53(d). It imposed concurrent sentences of six years for 

the assault with a four-year enhancement for personal firearm 

4 The jury did not reach a verdict on the attempted murder 

count or on the gang enhancements under section 186.22, 

subdivision (b)(1). The trial court declared a mistrial as to those 

allegations. 

5

In support of the motion, defendant noted that he was 22 

years old with a limited criminal history. He also cited his 

employment record, along with the testimony of character 

witnesses, the spontaneous nature of the shooting, and the fact 

that he was under the influence of alcohol when he shot the 

victim in the back.

6 The court acknowledged the factors cited by the defense 

and that the case was challenging because of the severity of the 

penalty. However, it noted that defendant had a previous 

conviction for carrying a concealed weapon; brought a firearm 

with him on a “beer run,” indicating a readiness to use it; and 

escalated the force he used from joining the scuffle to shooting 

the victim at pointblank range. In the court’s view, the totality 

of the circumstances did not call for a deviation from the 

statutorily mandated penalty for this “very serious offense.” 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

4

use and a three-year enhancement for great bodily injury,

7 as 

well as 90 days for driving under the influence. 

Defendant appealed, asserting the trial court abused its 

discretion because it was unaware of its full set of options under 

section 12022.53(h). According to defendant, the court believed 

it had only two choices: (1) impose the section 12022.53(d) 

enhancement; or (2) strike it. He urged the court had a third 

choice: to strike the section 12022.53(d) enhancement and 

impose a lesser enhancement under either section 12022.53(b) 

or (c).

8

 

The Court of Appeal affirmed, concluding that, under the 

circumstances, the trial court’s power under section 12022.53(h) 

was binary. It could strike the section 12022.53(d) enhancement 

found true by the jury or it could impose it. It could not strike 

the enhancement and substitute a different unalleged 

enhancement. In the Court of Appeal’s view, the trial court

correctly understood the scope of its power and did not abuse its 

discretion. The Court of Appeal noted that its decision conflicted 

with People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison). 

We granted review to resolve the conflict. 

7

(§§ 12022.5, subd. (a), 12022.7, subd. (a).)

8 Before the Court of Appeal, the People argued defendant 

had forfeited this argument by failing to specifically request the 

trial court strike or reduce the enhancement imposed upon 

defendant. (People v. Tirado (2019) 38 Cal.App.5th 637, 641, fn. 

5 (Tirado).) The Court of Appeal did not address the forfeiture 

argument, instead rejecting defendant’s claim of error on the 

merits. (Ibid.) 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

5

II. DISCUSSION

When being sentenced, a defendant is entitled to decisions 

made by a court exercising informed discretion. (People v. 

Gutierrez (2014) 58 Cal.4th 1354, 1391.) A court acting while 

unaware of the scope of its discretion is understood to have 

abused it. (People v. Carmony (2004) 33 Cal.4th 367, 378.) 

Whether the trial court here abused its discretion depends on 

the scope of that discretion under section 12022.53. We review 

this question of statutory interpretation de novo. 

Section 12022.53 was first enacted in 1997 as part of the 

state’s “Use a Gun and You’re Done” law. (Stats. 1997, ch. 503, 

§ 1 et seq.) The statute sets out “sentence enhancements for 

personal use or discharge of a firearm in the commission” of 

specified felonies.

9

 (People v. Palacios (2007) 41 Cal.4th 720, 725 

(Palacios).) Section 12022.53, subdivision (a) lists the felonies 

to which the section applies. Section 12022.53(b) mandates the 

imposition of a 10-year enhancement for personal use of a 

firearm in the commission of one of those felonies; section 

12022.53(c) mandates the imposition of a 20-year enhancement 

for personal and intentional discharge of a firearm; and section 

12022.53(d) provides for a 25 years-to-life enhancement for 

personal and intentional discharge of a firearm causing great 

bodily injury or death to a person other than an accomplice.

10

 

The legislative intent behind section 12022.53 is to impose 

9 An enhancement is “an additional term of imprisonment 

added to the base term” prescribed by statute for a given offense. 

(Cal. Rules of Court, rule 4.405(3).) 

10 In addition to the felonies specified in section 12022.53, 

subdivision (a), section 12022.53(d) applies to the felonies 

specified in section 246 and in subdivisions (c) and (d) of section 

26100. (§ 12022.53(d).) 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

6

“ ‘substantially longer prison sentences . . . on felons who use 

firearms in the commission of their crimes.’ ” (People v. Garcia

(2002) 28 Cal.4th 1166, 1172, quoting Stats. 1997, ch. 503, § 1, 

p. 3135.) 

Subdivisions (f) and (j) of section 12022.53 provide further 

guidance to a trial court when sentencing under the statute. 

The court’s power to impose a section 12022.53 enhancement is

limited: “For the penalties in this section to apply, the existence 

of any fact required under subdivision (b), (c), or (d) shall 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) (section 12022.53(j)).) If a section 12022.53 

enhancement is admitted or found true, the court must “impose 

punishment for that enhancement pursuant to this section 

rather than imposing punishment authorized under any other 

provision of law, unless another enhancement provides for a 

greater penalty or a longer term of imprisonment.” 

(§ 12022.53(j).) The court may impose “[o]nly one additional 

term of imprisonment under this section . . . per person for each 

crime.” (§ 12022.53, subd. (f) (section 12022.53(f).) If “more than 

one enhancement per person is found true under this section,” 

the court must impose the “enhancement that provides the 

longest term of imprisonment.” (Ibid.) 

Before January 1, 2018, section 12022.53 prohibited 

courts from striking its enhancements. Former subdivision (h) 

of section 12022.53 provided: “Notwithstanding Section 1385 or 

any other provision of law, the court shall not strike an 

allegation under this section or a finding bringing a person 

within the provisions of this section.” (Stats. 1997, ch. 503, § 3, 

p. 3137.) Thus, if a section 12022.53 enhancement was alleged 

and found true, its imposition was mandatory. (Palacios, supra, 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

7

41 Cal.4th at p. 726; see also People v. Oates (2004) 32 Cal.4th 

1048, 1056.) In 2017, the Legislature enacted Senate Bill No. 

620 (2017–2018 Reg. Sess.) (Senate Bill 620), amending section 

12022.53(h) to remove this prohibition. (Stats. 2017, ch. 682, 

§ 2.) Section 12022.53(h) now provides that a “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.”

Section 1385 provides that a court may, “in furtherance of 

justice, order an action to be dismissed.” (Id., subd. (a).) Though 

section 1385 literally authorizes the dismissal of “an action,” it 

has been construed to permit the dismissal of parts of an action 

(People v. Burke (1956) 47 Cal.2d 45, 51), including a weapon or 

firearm use enhancement (see People v. Price (1984) 151 

Cal.App.3d 803, 818−819; People v. Dorsey (1972) 28 Cal.App.3d 

15, 17–18). Further, the statute’s application is broad: “Section 

1385 permits dismissals in the interest of justice in any 

situation where the Legislature has not clearly evidenced a 

contrary intent.” (People v. Williams (1981) 30 Cal.3d 470, 482.) 

There is no dispute that section 12022.53(h), as amended, 

authorizes a court to strike a section 12022.53(d) enhancement 

entirely and impose no additional punishment under section 

12022.53. The question is whether the court can strike the 

section 12022.53(d) enhancement and, in its place, impose a 

lesser enhancement under section 12022.53(b) or section 

12022.53(c), even if the lesser enhancements were not 

specifically charged in the information or found true by the jury. 

As noted, the Courts of Appeal have split on this question. 

Morrison, supra, 34 Cal.App.5th 217 held that a trial court 

confronting these circumstances can strike the section 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

8

12022.53(d) enhancement and impose one of the lesser 

enhancements. The court pointed to case law recognizing that 

a court “may impose a ‘lesser included’ enhancement that was 

not charged in the information when a greater enhancement 

found true by the trier of fact is either legally inapplicable or 

unsupported by sufficient evidence.” (Morrison, at p. 222, citing

People v. Strickland (1974) 11 Cal.3d 946 (Strickland), People v. 

Fialho (2014) 229 Cal.App.4th 1389 (Fialho), People v. Dixon

(2007) 153 Cal.App.4th 985 (Dixon), People v. Lucas (1997) 55 

Cal.App.4th 721 (Lucas), People v. Allen (1985) 165 Cal.App.3d 

616 (Allen).) Extending the principle of those authorities, the 

Morrison court “[saw] no reason” why a court could not strike an 

adjudicated section 12022.53(d) enhancement and impose an 

unadjudicated enhancement under section 12022.53(b) or (c). 

(Morrison, at p. 222.) 

The Court of Appeal below disagreed with Morrison. It 

reasoned that the plain language of section 12022.53(h) did not 

authorize a court “to substitute one enhancement for another.” 

(Tirado, supra, 38 Cal.App.5th at p. 643.) Rather, section 

12022.53(h) authorizes a “binary” choice: either strike the 

enhancement or impose it. (Tirado, at p. 643; see also, ibid. 

[“nothing in [the statute] conveys the power to change, modify, 

or substitute a charge or enhancement”].) The court opined that, 

if the prosecution had alleged all three enhancements — i.e., the 

enhancements under section 12022.53(b), (c) and (d) — and the 

jury had found all three to be true, then the court “would have 

had the discretion to strike the [section 12022.53(d)] 

enhancement and . . . either impose one of the other two 

enhancements or strike them as well.” (Tirado, at p. 644; see 

also People v. Wang (2020) 46 Cal.App.5th 1055, 1090−1091.) 

However, “because the People exercised their charging 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

9

discretion to allege only one enhancement, the trial court was 

limited to either imposing or striking that enhancement.” 

(Tirado, at p. 644.) The court distinguished the case law relied 

upon by the Morrison court, reasoning that “the enhancement 

at issue here was neither unsupported by the law nor 

unsupported by the evidence.” (Ibid.) 

Morrison correctly described the scope of a trial court’s 

sentencing discretion under section 12022.53. Although the 

prosecution did not specifically allege enhancements under 

section 12022.53(b) or (c), the trial court could impose those 

enhancements even when the section 12022.53(d) enhancement 

was not legally or factually inapplicable. Neither case law nor 

the language of section 12022.53 compels a contrary conclusion. 

At the outset, it is worth noting that a court is not 

categorically prohibited from imposing a lesser included, 

uncharged enhancement so long as the prosecution has charged 

the greater enhancement and the facts supporting imposition of 

the lesser enhancement have been alleged and found true. The 

case law cited by Morrison and the Court of Appeal below makes 

this clear. For example, Strickland, supra, 11 Cal.3d 946 held 

that an uncharged enhancement may be imposed when a 

charged and adjudicated enhancement is inapplicable to the 

offense for which the defendant is ultimately convicted. 

(Strickland, at p. 961.) There, the defendant was charged with 

murder but convicted of voluntary manslaughter. At 

sentencing, the trial court imposed a firearm use enhancement 

under section 12022.5. This court held the imposition of that 

enhancement was erroneous because section 12022.5 did not 

apply to voluntary manslaughter. (Strickland, at pp. 959−960.) 

However, we held the defendant was subject to a separate 

firearm use enhancement under section 12022. (Strickland, at 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

10

p. 961.) We reasoned that section 12022 “ ‘would be applicable 

in any case in which [section] 12022.5 applies’ ”; that section 

12022.5 “ ‘is a limited application of section 12022 with a heavier 

penalty’ ”; and that, because the jury found that the defendant 

came within the provisions of section 12022.5, it had manifestly 

found all the facts necessary for application of section 12022. 

(Strickland, at p. 961.) 

Fialho, supra, 229 Cal.App.4th 1389 reached a similar 

conclusion. There, the defendant was charged with murder and 

convicted of voluntary manslaughter. The jury also found true 

an enhancement under section 12022.53(d). The trial court 

imposed a different firearm use enhancement under 12022.5, 

subdivision (a), because section 12022.53 does not apply to 

voluntary manslaughter. (Fialho, at pp. 1391−1392.) On 

appeal, the defendant urged that the section 12022.5, 

subdivision (a) enhancement should be stricken because it had 

not been alleged in the information or found true by the jury. 

(Fialho, at p. 1392.) Relying on Strickland, the Court of Appeal 

rejected the argument, concluding that “when an enhancement 

is alleged in the information, the defendant is put on notice ‘that 

his [or her] conduct [could] also be in violation of’ an uncharged 

enhancement that ‘would be applicable in any case’ in which the 

charged enhancement applies, and imposition of the uncharged 

enhancement is permitted.” (Fialho, at p. 1397.) Because the 

defendant had conceded there was sufficient evidence to support

the imposition of a section 12022.5, subdivision (a) 

enhancement, had it been alleged, the Court of Appeal 

concluded the enhancement was properly imposed. (Fialho, at 

pp. 1395, 1398.) It would elevate form over substance, the court 

reasoned, to require “a specific lesser included enhancement 

code section [to] be pleaded before [the] lesser included 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

11

enhancement can be imposed.” (Id. at p. 1398.) The authority 

of a trial court to impose an uncharged enhancement, in 

appropriate circumstances, has also been upheld against similar 

challenges by defendants when the evidence was insufficient to 

support the adjudicated enhancement. (See Dixon, supra, 153 

Cal.App.4th at pp. 1001−1002; Lucas, supra, 55 Cal.App.4th at 

p. 743; see also Allen, supra, 165 Cal.App.3d at p. 627.) 

The question of a court’s authority to impose an uncharged 

enhancement often arises in the context of a due process 

challenge. (See Dixon, supra, 153 Cal.App.4th at pp. 

1001−1002; Lucas, supra, 55 Cal.App.4th at p. 743.) “A 

defendant has the ‘right to fair notice of the specific sentence 

enhancement allegations that will be invoked to increase 

punishment for his crimes.’ ” (People v. Anderson (2020) 9 

Cal.5th 946, 953, quoting People v. Mancebo (2002) 27 Cal.4th 

735, 747.) But unless the Legislature requires otherwise, the 

“accusatory pleading need not specify by number the statute 

under which the accused is being charged.” (People v. Thomas

(1987) 43 Cal.3d 818, 826.) Where a lesser offense is 

encompassed within a greater one, the factual allegations made 

in charging the greater offense are sufficient to give notice of the 

lesser. By charging the greater offense, the prosecution 

demonstrates an “intent to prove all the elements of any lesser 

necessarily included offense. Hence, the stated charge notifies 

the defendant, for due process purposes, that he must also be 

prepared to defend against any lesser offense necessarily 

included therein, even if the lesser offense is not expressly set 

forth in the indictment or information.” (People v. Birks (1998) 

19 Cal.4th 108, 118 (Birks).) Thus, when a greater offense or an 

enhancement is dismissed after having been found true, the 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

12

lesser offense has nevertheless been charged and found true and 

may therefore be properly applied to the defendant.

The Court of Appeal below distinguished the cases 

Morrison relied on, reasoning that here the enhancement “was 

neither unsupported by the law nor unsupported by the 

evidence.” (Tirado, supra, 38 Cal.App.5th at p. 644.) Based on 

that distinction, the Court of Appeal held that the trial court 

could not impose an enhancement under section 12022.53(b) or 

(c) because the prosecution had not specifically alleged the lesser 

enhancements. (Tirado, at p. 644.) That is, the Court of Appeal 

regarded the above-mentioned cases as prescribing the only

circumstances in which a trial court can impose an uncharged 

enhancement. But nothing in Strickland or the other cases 

mentioned suggests that a trial court’s power to impose an 

uncharged enhancement is conditioned on the charged and 

adjudicated enhancement being inapplicable. Under those 

cases, imposition of an uncharged enhancement is permitted so 

long as the facts supporting its imposition are alleged and found 

true.

11

 (Fiahlo, supra, 229 Cal.App.4th at p. 1397; see also 

Strickland, supra, 11 Cal.3d at p. 961.) 

Thus far, we have concluded that courts are not 

categorically prohibited from imposing uncharged 

enhancements and that the power to do so is not conditioned on 

the charged and adjudicated enhancement being legally or 

11 The People argue that the “statutory source for a court’s 

authority to substitute and impose a lesser uncharged 

enhancement is found” in section 1181, subdivision 6, “which 

expressly permits such an action only ‘[w]hen the verdict or 

finding is contrary to law or evidence,’ ” and section 1260, “which 

expressly allows a court to modify a judgment.” However, 

neither Strickland nor Fialho relied on or cited either provision. 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

13

factually inapplicable. The next question is whether section 

12022.53 bars a trial court from imposing an enhancement 

under section 12022.53(b) or (c) when those enhancements are 

not specifically listed in the accusatory pleading, but the facts 

giving rise to the enhancement are alleged and found true. The 

Legislature could draft a statute that restricts a court’s 

discretion in this manner. (People v. Superior Court (Romero)

(1996) 13 Cal.4th 497, 516 (Romero).) Read as a whole, however, 

the current language of section 12022.53 does not contain such 

a limitation. 

The Court of Appeal reasoned that “[n]othing in the plain 

language of [section 12022.53(h)] authorizes a trial court to 

substitute one enhancement for another.” (Tirado, supra, 38 

Cal.App.5th at p. 643.) It can dismiss an enhancement or 

impose it, but cannot “change, modify, or substitute” an

enhancement. (Ibid.) The People make a similar argument. 

According to the People, section 12022.53(h) does not allow a 

court to modify an enhancement by effectively deleting an 

element of an enhancement that has been found true.

These arguments are correct as far as they go. Section 

12022.53(h) does not authorize the imposition of any of section 

12022.53’s enhancements; it only authorizes a trial court to 

“strike or dismiss an enhancement otherwise required to be 

imposed by this section.” (§ 12022.53(h).) Section 12022.53(j) is 

the subdivision that authorizes the imposition of enhancements 

under section 12022.53. It provides that for the penalties in 

section 12022.53 to apply, the existence of any fact required by 

section 12022.53(b), (c), or (d) must be alleged in the accusatory 

pleading and admitted or found true. Therefore, the question is 

not whether section 12022.53(h) authorizes the court to change, 

modify, or substitute an enhancement. Rather, it is whether 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

14

section 12022.53(j) authorizes the court to impose an 

enhancement under section 12022.53(b) or (c) after striking a 

section 12022.53(d) enhancement. To answer that question, we 

must determine whether the existence of facts required by 

section 12022.53(b) and (c) were alleged and found true. 

Those requirements were met here. In connection with 

the robbery count, the information alleged that defendant “did 

personally and intentionally discharge a firearm which 

proximately caused great bodily injury or death to another 

person, not an accomplice . . . within the meaning of Penal Code 

section 12022.53(d).” This charging language referred to facts 

necessary to prove allegations under section 12022.53(b) and (c) 

as well. Firing a gun as alleged would meet the use requirement 

of section 12022.53(b) and the discharge element of section 

12022.53(c). Likewise, the jury’s findings established that these 

same facts were proven true. 

To summarize: When an accusatory pleading alleges and 

the jury finds true the facts supporting a section 12022.53(d) 

enhancement, and the court determines that the section 

12022.53(d) enhancement should be struck or dismissed under 

section 12022.53(h), the court may, under section 12022.53(j), 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

15

impose an enhancement under section 12022.53(b) or (c).

12

 The 

plain statutory language supports this conclusion.

13

 

12 It should be noted, however, that this general rule only 

applies when a true finding under section 12022.53(d) 

necessarily includes a true finding under section 12022.53(b) or 

(c). That would not be the case if a section 12022.53(d) 

enhancement were added to a charge under section 246 

[shooting at an inhabited dwelling house] or under subdivisions 

(c) or (d) of section 26100 [shooting from a motor vehicle]. Those 

offenses are not “specified in subdivision (a),” as required for 

imposition of an enhancement under section 12022.53(b) or (c). 

(§ 12022.53(b), (c).)

13 At oral argument, the People placed great weight on the 

1927 case of People v. Superior Court (Prudencio) (1927) 202 Cal. 

165. Their reliance is misplaced. In Prudencio, the defendant 

was charged with first degree murder. The jury found the 

defendant guilty of that offense and fixed the punishment at

death. (Prudencio, at p. 167.) The defendant moved for a new 

trial. The trial court denied the motion but found the evidence 

was insufficient to sustain the jury’s verdict and, instead, found 

the defendant guilty of second degree murder. (Id. at pp. 

168−169.) This court held the trial court’s action was 

unauthorized because section 190 gave the jury sole discretion 

to determine the degree of and punishment for murder. 

(Prudencio, at p. 170.) Thus, the trial court’s options were to 

grant a new trial or to “pronounce judgment upon the verdict as 

rendered.” (Prudencio, at pp. 169−170.) Unlike Prudencio, this 

is not a murder case, and section 12022.53 does not limit a trial 

court to imposing the enhancement found true by the jury. 

Amended section 12022.53(h) allows a court to strike a jury’s 

true finding under section 12022.53(d), and section 12022.53(j) 

allows a court to impose a lesser enhancement so long as the 

facts required by the relevant subdivision were alleged and 

found true. There are other points of distinction as well. When 

Prudencio was tried, the court had no power to alter a jury 

verdict under section 1181. Its sole authority under that 

provision was to grant a new trial. Section 1181 was only 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

16

This understanding is also consistent with the legislative 

history of Senate Bill 620. As mentioned, the Legislature’s goal

in enacting section 12022.53 was to protect Californians and 

deter violent crime by imposing “substantially longer prison 

sentences . . . on felons who use firearms in the commission of 

their crimes.” (Stats. 1997, ch. 503, § 1, p. 3135.) The 

Legislature created an escalating set of enhancements, based on 

the defendant’s conduct and the harm caused. (§ 12022.53(b), 

(c), (d).) It ensured that the harshest applicable punishment 

would be imposed in each case. (§ 12022.53(f), (j).) Former 

subdivision (h) of section 12022.53 reinforced those objectives by 

prohibiting courts from striking allegations or findings bringing 

a person within the statute’s coverage. (Stats. 1997, ch. 503, § 3, 

p. 3137.) However, as Senate Bill 620’s legislative history 

shows, the enhancement scheme “caus[ed] several problems.” 

(Sen. Com. on Public Safety, Analysis of Sen. Bill No. 620 (2017–

2018 Reg. Sess.) as amended Mar. 28, 2017, p. 3.) An analysis 

prepared for the Senate Committee on Public Safety before the 

bill’s passage noted that the sentencing enhancements had 

“[g]reatly increase[d] the population of incarcerated persons.” 

(Ibid.) The percentage of the state’s budget devoted to 

corrections rose from 4 percent of General Fund expenses in the 

early 1980s to 9 percent in 2014. (Ibid.) The analysis stated 

that Senate Bill 620 would provide courts with discretion to 

strike a firearm enhancement, thereby providing relief “to a 

subsequently amended to permit modification under some 

circumstances. (See People v. Tubby (1949) 34 Cal.2d 72, 76.) 

Finally, our resolution here turns on the application of section 

12022.53, a provision added to the Penal Code 70 years after

Prudencio was decided. For all these reasons, the People’s 

repeated reliance on Prudencio is unavailing. 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

17

deserving defendant, while a defendant who merited additional 

punishment” would still receive it. (Sen. Com. on Public Safety, 

Analysis of Sen. Bill No. 620 (2017–2018 Reg. Sess.) as amended 

Mar. 28, 2017, p. 7.) The argument in support echoed this 

description, stating the bill would allow judges “to impose 

sentences that fit the severity of the offense.” (Id. at p. 8.) This 

history reflects a legislative intent to retain the core 

characteristics of the sentencing scheme. More severe terms of 

imprisonment with the harshest applicable sentence remained 

the default punishment. However, courts were granted the 

flexibility to impose lighter sentences in appropriate 

circumstances.

The People argue it would violate separation of powers 

principles to allow a court to impose a section 12022.53(b) or (c) 

penalty when only a section 12022.53(d) enhancement is 

charged and found true. If the People’s position is correct, a 

court could not impose an uncharged lesser enhancement even 

when the adjudicated enhancement is inapplicable or 

unsupportable. Yet, that authority has been repeatedly 

endorsed. (See Strickland, supra, 11 Cal.3d 946; Fialho, supra, 

229 Cal.App.4th 1389.) To be sure, it is the prosecution that 

determines what charges should be brought and against whom. 

(Birks, supra, 19 Cal.4th at pp. 134−135.) That authority 

includes the power to charge specific enhancements and seek 

the maximum available term (People v. Bizieff (1990) 226 

Cal.App.3d 130, 138) free from judicial supervision or 

interference. However, once those decisions have been made 

and the proceedings have begun, “the process which leads to 

acquittal or to sentencing is fundamentally judicial in nature.”

(People v. Tenorio (1970) 3 Cal.3d 89, 94.) The prosecution 

cannot control the court’s authority to select from the 
PEOPLE v. TIRADO

Opinion of the Court by Corrigan, J.

18

legislatively authorized sentencing options. (See Romero, supra, 

13 Cal.4th at p. 516.) Here, the Legislature has permitted courts

to impose the penalties under section 12022.53(b), (c), or (d) so 

long as the existence of facts required by the relevant 

subdivision has been alleged and found true. 

III. DISPOSITION

The Court of Appeal’s judgment is reversed. The matter 

is remanded for the Court of Appeal to address the People’s 

unresolved forfeiture argument (see ante, p. 4, fn. 8) and for any 

further proceedings not inconsistent with this opinion. 

CORRIGAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

PERLUSS, J.*

__________________________

* Presiding Justice of the Court of Appeal, Second Appellate 

District, Division Seven, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Tirado 

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 38 Cal.App.5th 637

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________ 

Opinion No. S257658

Date Filed: January 20, 2022

__________________________________________________________ 

Court: Superior

County: Kern

Judge: John D. Oglesby

__________________________________________________________ 

Counsel:

Theresa Schriever, under appointment by the Supreme Court, and 

John L. Staley, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler 

and Lance E. Winters, Chief Assistant Attorneys General, Michael P. 

Farrell, Assistant Attorney General, Julie A. Hokans, F. Matt Chen, 

Catherine Chatman and Dina Petrushenko, Deputy Attorneys 

General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Theresa Schriever

Central California Appellate Program

2150 River Plaza Drive, #300

Sacramento, CA 95833

(916) 441-3792

Dina Petrushenko

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 210-6048