Filed 3/18/20

CERTIFIED FOR PARTIAL PUBLICATION*

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)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Yvette Verastegui, Judge. Affirmed with 

modifications.

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.

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, 

this opinion is certified for publication with the exception of part

II of the Discussion section.
2

* * * * * *

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 (Morrison) says “yes,” while People v. Tirado

(2019) 38 Cal.App.5th 637 (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 In the unpublished portion 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 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

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 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

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 

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. 
4

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 [court abuses its discretion 

when it misunderstands the scope of that discretion].) 
5

Defendant’s argument in this case accordingly presents the 

same question posed in Morrison, supra, 34 Cal.App.5th 217 and 

Tirado, supra, 38 Cal.App.5th 637: 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; People v. Waidla (2000) 22 Cal.4th 690, 733 with People v. 

Carmony (2004) 33 Cal.4th 367, 373.)

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.) 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 [substitution of a party plaintiff is different from 

striking parties].) When our Legislature has wanted to grant a 
6

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 

1717, 727 [“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 

[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 [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 

[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 
7

executing our state’s criminal law. (People v. Birks (1998) 19 

Cal.4th 108, 134 [so noting] (Birks); People v. Jerez (1989) 208 

Cal.App.3d 132, 138 [“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 

authority to seek the “maxim[um] . . . available sentence 

(including charging of enhancements) to which a defendant might 

be exposed in the event of conviction . . .” (People v. Bizieff (1990) 

226 Cal.App.3d 130, 138.) The authority is even greater when it 

comes to alleging sentencing enhancements: Although a 

prosecutor’s discretion to seek the maximum sentence by only 

charging the criminal offense with the highest sentence is 

curtailed to some degree by the sua sponte judicial duty to 

instruct on lesser included offenses so as to avoid putting the jury 

to an “all-or-nothing” choice (Schad v. Arizona (1991) 501 U.S. 

624, 646-647), there is no such duty when it comes to “‘lesser 

included [sentencing] enhancements’” (People v. Majors (1998) 18 

Cal.4th 385, 410-411), such that, absent a constitutional 

violation, the prosecutor’s decision not to charge a particular 

enhancement “generally is not subject to supervision”—or second 

guessing—“by the judicial branch.” (People v. Mancebo (2002) 27 

Cal.4th 735, 749 [“the People’s failure to include a [particular] 

allegation must be deemed a discretionary charging decision.”]; 

Birks, at p. 134; United States v. Batchelder (1979) 442 U.S. 114, 

125 [prosecutor’s decision to charge crimes and enhancements 

yielding a greater punishment, “standing alone, does not give rise 

to a violation” of equal protection].) Construing section 12022.53, 

subdivision (h) to allow a court to substitute a lesser included 
8

firearm enhancement would overstep the carefully drawn line 

delineating the powers of the judicial and executive branches.

Third, this is the result dictated by the rules governing 

when to instruct the jury on lesser offenses and enhancements. 

It is well settled that a court may instruct a jury on a lesser

included offense only if there is substantial evidence from which 

a rational jury could find that “‘the defendant committed the 

lesser offense, and that he is not guilty of the greater [charged] 

offense.’ [Citations.]” (People v. Whalen (2013) 56 Cal.4th 1, 68.) 

The same rule ostensibly applies when a court, if so requested, is 

deciding whether to instruct on a lesser included enhancement. 

On the facts of this case, substantial evidence does not support 

instructing the jury on either of the lesser included firearm 

enhancements because no rational jury could find that defendant 

engaged in conduct warranting the lesser included enhancements

(that is, personally using a firearm or intentionally discharging it 

but not causing serious bodily injury) but not the greater 

enhancement (that is, intentionally discharging the firearm and 

causing serious bodily injury). That is because it was undisputed 

that the victim was shot in the back of the head and died from 

that wound. Construing section 12022.53, subdivision (h) to 

allow a court to substitute a lesser included firearm enhancement 

would empower a court to do on the back end what a court is 

prohibited from allowing a jury to do on the front end.

Morrison came to its contrary conclusion that trial courts 

had the authority under section 12022.53, subdivision (h), to 

impose a “middle ground” firearm enhancement based on two 

arguments that, in our view, do not withstand scrutiny. 

(Morrison, supra, 34 Cal.App.5th at p. 223.)
9

First, Morrison drew upon the well-recognized power of

courts to impose a lesser included, but uncharged, enhancement 

“when a greater enhancement found true by the trier of fact is 

either legally inapplicable or unsupported by sufficient evidence.” 

(Morrison, supra, 34 Cal.App.5th at p. 222.) To be sure, there is a 

line of authority—tracing all the way back to People v. Strickland

(1974) 11 Cal.3d 946—acknowledging the power of a trial court to 

“substitute[] . . . a charged enhancement with an uncharged 

“‘lesser included enhancement’”” where there is some defect—

legal or factual—with the greater enhancement. (People v. Fialho

(2014) 229 Cal.App.4th 1389, 1396-1397; People v. Lucas (1997) 

55 Cal.App.4th 721, 743; People v. Allen (1985) 165 Cal.App.3d 

616, 627; People v. Dixon (2007) 153 Cal.App.4th 985, 1002.) But 

this power is limited to situations where the greater 

enhancement is defective. That is because this inherent power of 

courts serves a very specific purpose—that is, to enable courts to 

salvage as much of the prosecutor’s charging decision and the 

jury’s verdict as possible by allowing them to substitute a lesser

included enhancement also found by the jury rather than impose 

no enhancement at all. (E.g., People v. Crooks (1997) 55 

Cal.App.4th 797, 811 [noting courts’ “inherent authority to 

correct an unauthorized sentence”]; People v. Relkin (2016) 6 

Cal.App.5th 1188, 1198 [same].) This line of authority does not 

provide any basis for extending the language of section 12022.53, 

subdivision (h) to allow a court to act when the greater

enhancement is not defective and thus to substitute a perfectly 

valid greater enhancement for a lesser included enhancement. 

That is because doing so would undercut—rather than

effectuate—the prosecutor’s charging decision and the jury’s 

verdict. 
10

Second, Morrison reasoned that language in People v. 

Marsh (1984) 36 Cal.3d 134 (Marsh) “buttressed” its holding. To 

be sure, Marsh does state—as Morrison recites—that “‘there is a 

broad range of sentencing options’” under section 1385 “‘between 

th[e] extremes’” of striking two different sentencing 

enhancements or leaving them intact. (Morrison, supra, 34 

Cal.App.5th at pp. 222-223, quoting Marsh, at p. 144.) But 

Marsh simply recognized that the trial court had the discretion 

under section 1385 to strike both of the kidnapping sentencing 

enhancements at play in that case, to strike only one of them, or 

to strike neither. (Marsh, at pp. 143-144.) Marsh’s comment that 

a court could exercise its power to “dismiss” individually charged 

and proven enhancements says nothing about whether the court 

also has the power to substitute lesser included enhancements for 

a valid greater enhancement. 

For these reasons, we join Tirado in its holding that section 

12022.53, subdivision (h) does not grant trial courts the 

discretion to substitute lesser included firearm enhancements. 

As a consequence, the trial court in this case properly understood 

the scope of its discretion and its decision not to exercise that 

discretion was appropriate.

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.)
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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 long 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 

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. [Citations.]” (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 
12

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.)
13

DISPOSITION

It is ordered that the trial court prepare and forward to the 

California Department of Corrections and Rehabilitation a 

modified abstract of judgment. It should reflect that defendant 

was convicted of second degree murder, not first degree murder. 

As modified, the judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P.J.

ASHMANN-GERST

_________________________, J.

CHAVEZ