46 Cal.App.5th 786
Cal. Ct. App.2020Background
- Defendant Gregory Steven Garcia went to the victim’s apartment and shot him; the victim died from a gunshot wound to the back of the head.
- Charged with murder (jury convicted of second-degree murder) and three §12022.53 firearm enhancements; jury found the greatest enhancement (25-year for intentionally discharging causing great bodily injury) true.
- Trial court, with parties’ concurrence, did not instruct the jury on the two lesser firearm enhancements.
- At sentencing the court denied defendant’s motion to strike the enhancement under §12022.53(h) and imposed 15 years-to-life for murder plus a consecutive 25 years-to-life enhancement (40 years-to-life total).
- On appeal the court (1) held that §12022.53(h) does not permit a trial court to substitute a lesser uncharged enhancement for a valid greater enhancement, (2) rejected defendant’s Dueñas‑based and Eighth Amendment challenges to the $370 in monetary obligations, and (3) ordered a clerical correction to the abstract of judgment (conviction should read second-degree murder).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court may substitute a lesser uncharged §12022.53 enhancement when the greater enhancement was charged and found true | The People argued the court lacks authority to substitute a lesser enhancement; statute only authorizes striking or dismissing | Garcia argued the court has discretion under §12022.53(h) to substitute a lesser included enhancement instead of striking the enhancement | Court held §12022.53(h) does not permit substitution of lesser included enhancements when the greater enhancement is legally and factually valid; affirming denial to strike |
| Whether imposing $300 restitution fine plus $70 assessments without an ability-to-pay hearing violated due process or constituted cruel and unusual punishment | People argued Dueñas is not controlling and the failure to hold an ability-to-pay hearing is harmless; the $370 is not grossly disproportionate | Garcia relied on Dueñas: court must assess ability to pay before imposing fines and fees; alternatively Eighth Amendment challenge | Court rejected Dueñas argument, found imposition harmless (defendant can earn amount in prison wages) and held $370 not grossly disproportionate; challenge denied |
| Whether abstract of judgment incorrectly listed first-degree murder | People conceded clerical error | Garcia requested correction to reflect actual conviction | Court ordered the abstract corrected to show second-degree murder |
Key Cases Cited
- People v. Tirado, 38 Cal.App.5th 637 (Cal. Ct. App. 2019) (holding trial courts may not substitute lesser §12022.53 enhancements for a valid greater enhancement)
- People v. Morrison, 34 Cal.App.5th 217 (Cal. Ct. App. 2019) (contrary view: courts may impose lesser uncharged enhancement)
- People v. Marsh, 36 Cal.3d 134 (Cal. 1984) (recognizing trial court discretion under §1385 to strike individual enhancements)
- People v. Strickland, 11 Cal.3d 946 (Cal. 1974) (authority to substitute lesser included enhancement when greater is legally inapplicable or unsupported)
- People v. Pearson, 56 Cal.4th 393 (Cal. 2013) (abuse of discretion standard when court misunderstands scope of its discretion)
- People v. Birks, 19 Cal.4th 108 (Cal. 1998) (charging decisions and which enhancements to allege are prosecutorial prerogatives)
- United States v. Batchelder, 442 U.S. 114 (U.S. 1979) (prosecutor's charging decision to seek greater punishment generally not an equal protection violation)
- People v. Whalen, 56 Cal.4th 1 (Cal. 2013) (instruction on lesser included offenses requires substantial evidence from which a rational jury could find the lesser but not the greater offense)