Filed 5/20/22 P. v. Garcia CA2/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

GREGORY STEVEN GARCIA,

Defendant and Appellant.

 B293491

 (Los Angeles County

 Super. Ct. No. SA095648)

 OPINION ON REMAND

APPEAL from a judgment of the Los Angeles Superior 

Court, Yvette Verastegui, Judge. Affirmed in part, reversed in 

part, and remanded with directions.

David Y. Stanley, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Rob Bonta and Xavier Becerra, Attorneys General, Lance 

E. Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Assistant Attorney General, William H. Shin, Noah P. 

Hill, and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff 

and Respondent.

* * * * * *

Gregory Steven Garcia (defendant) was convicted of second 

degree murder. The trial court sentenced defendant to 40 years 

to life. As part of that sentence, the court imposed a term of 25 

years to life for personally and intentionally discharging a 

firearm and proximately causing death pursuant to Penal Code 

section 12022.53, subdivision (d).1 Defendant appealed, arguing 

that the court should have exercised its newly conferred 

authority—under section 12022.53, subdivision (h)—to “strike or 

dismiss an enhancement” under section 12022.53 to substitute a 

10-year or 20-year enhancement under subdivisions (b) or (c) of 

section 12022.53. We rejected this argument in a published 

opinion, reasoning that the lesser enhancements had not been 

presented to, or found to be true by, the jury. (People v. Garcia

(2020) 46 Cal.App.5th 786.) The California Supreme Court 

granted review in June 2020; handed down People v. Tirado

(2022) 12 Cal.5th 688 (Tirado), which held that trial courts do

have the discretion to dismiss a greater enhancement for an 

uncharged lesser enhancement under section 12022.53; and 

remanded this case back to us for reconsideration in light of 

Tirado. 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

Because Tirado unequivocally rejects the reasoning we 

adopted in our prior opinion, that opinion and decision is vacated. 

We remand the matter for a new sentencing hearing for the trial 

court to reconsider its decision whether to strike the 25-year 

firearm enhancement in this case in light of the broader 

discretion, recognized in Tirado, to impose unproven lesser 

enhancements. We also address defendant’s challenges to the 

assessment and restitution fine imposed in this case and to a 

clerical error in the abstract of judgment; we reject the first 

challenge, but find the second challenge to be meritorious and 

order the trial court to correct a clerical error in the abstract of 

judgment.

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 (§ 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 
4

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 selfdefense. 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

In October 2018, 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 under section 12022.53, 

subdivision (h). 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. 

2 The jury was instructed on the gang enhancement, but 

found it not to be true. The jury was not instructed on the bail 

enhancement. 
5

(b)), a $40 court security fee (§ 1465.8) and a $30 criminal 

conviction assessment (Gov. Code, § 70373).

Defendant filed a timely appeal. As noted above, we 

affirmed, but our Supreme Court vacated our prior opinion and 

has remanded the matter for us to reconsider in light of Tirado.

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)), and to impose any enhancement so long as “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.” (Id., subd. (j).)

In Tirado, supra, 12 Cal.5th 688, our Supreme Court held 

that a trial court that “determines that a section 12202.53(d) 

enhancement should be stuck or dismissed under section 

12022.53(h)” “may, under section 12022.53(j), impose an 

enhancement under section 12022.53(b) or (c),” “even if the lesser 

enhancements were not specifically charged . . . or found true by 

the jury.” (Id. at pp. 696, 700.) Here, the trial court rejected 
6

defendant’s request to strike the 25-year enhancement based in 

part upon its belief that it faced an “all-or-nothing” choice—leave 

the 25-year enhancement intact or impose no firearm 

enhancement at all. Indeed, the court remarked that it “wish[ed] 

that there was a sentencing scheme for the 25 years to life.” 

Because a court that is unaware of the scope of its discretion 

necessarily abuses that discretion (People v. Carmony (2004) 33 

Cal.4th 367, 378), the trial court’s ruling is an abuse of discretion 

and defendant is entitled to an opportunity to ask the court to 

exercise its discretion within the full range of possible sentences 

in mind. 

The People acknowledge that the trial court was not aware 

of the full range of its discretion under Tirado. The People 

nevertheless urge that defendant forfeited his right to 

resentencing by not specifically asking the trial court to impose a 

lesser sentence of 10 years or 15 years under the other 

subdivisions of section 12022.53. We reject this argument. It is 

undisputed that defendant asked the trial court to exercise its 

discretion not to impose the full 25-year firearm enhancement 

found true by the jury. The trial court’s error here was not 

understanding the full scope of that discretion. A defendant does 

not forfeit the right to have a trial court exercise the full scope of 

its discretion by virtue of having failed to ask the court to impose 

a certain sentence now held to be within that scope when it was 

unclear, at that time, whether that sentence was permissible. 

The contrary rule urged by the People would effectively narrow

the scope of a trial court’s sentencing discretion any time a 

defendant does not tell the court about the breadth of its 

discretion. We express no opinion on how the trial court should 

exercise its discretion on remand.
7

II. Remaining Issues

A. Challenge to restitution fine and court fees

Relying upon People v. Dueñas (2019) 30 Cal.App.5th 1157 

(Dueñas), defendant contends that the trial court’s imposition of 

the $300 restitution fine and $70 in assessments without an 

ability to pay hearing (1) violated due process and (2) constituted 

cruel and unusual punishment. These are constitutional 

questions that we review de novo. (People v. Ramos (1997) 15 

Cal.4th 1133, 1154.)

We reject defendant’s due process-based argument for two 

reasons. First, the sole basis for defendant’s argument is Dueñas, 

supra, 30 Cal.App.5th 1157. However, we have rejected Dueñas’s

reasoning. (See People v. Hicks (2019) 40 Cal.App.5th 320, 

review granted Nov. 26, 2019, S258946.) Second, even if Dueñas

were good law, the trial court’s failure to conduct an ability to pay 

hearing when imposing $370 in monetary obligations was 

harmless because defendant will earn that amount as prison 

wages during just the 15-year sentence for his murder conviction 

and hence prior to his release. (Accord, People v. Johnson (2019) 

35 Cal.App.5th 134, 139 [“The idea that [defendant] cannot afford 

to pay $370 while serving an eight-year prison sentence is 

unsustainable.”].)

And to the extent defendant argues that the $370 in 

monetary obligations constitutes cruel and unusual punishment, 

we reject that argument as well. Whether such an obligation is 

excessive for these purposes turns on whether it is “grossly 

disproportional to the gravity of [the] defendant’s offense.” 

(United States v. Bajakajian (1998) 524 U.S. 321, 334 

(Bajakajian), superseded by statute on other grounds as stated in 

United States v. Jose (2007) 499 F.3d 105, 110.) Factors relevant 
8

to gross disproportionality include “(1) the defendant’s 

culpability; (2) the relationship between the harm and the 

penalty; (3) the penalties imposed in similar statutes; and (4) the 

defendant’s ability to pay.” (People ex rel. Lockyer v. R.J. 

Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) Under this 

standard, a defendant’s ability to pay is a factor, not the only 

factor. (Bajakajian, at pp. 337-338.) Applying these factors, we 

conclude that the minimum monetary obligations totaling $370 

are not grossly disproportionate to his crime of seeking out his 

victim and fatally shooting him in the back of the head. 

B. Clerical error with abstract of judgment

Defendant also argues that the abstract of judgment 

incorrectly records that he was convicted of “first degree murder” 

rather than “second degree murder.” The People concede this 

error. The abstract of judgment should therefore be modified. 

(People v. Vega (2015) 236 Cal.App.4th 484, 506.)

DISPOSITION

The judgment is reversed to the extent it imposed a firearm 

enhancement and the matter is remanded for resentencing with 

directions that the court: (1) exercise its discretion pursuant to 

section 12022.53, subdivisions (h) and (j); and (2) correct the 

abstract of judgment to reflect that defendant was convicted of 

second degree murder. In all other respects, the judgment is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:
9

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ