People v. Garcia CA2/2 ( 2022 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B293491
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA095648)
v.
OPINION ON REMAND
GREGORY STEVEN GARCIA,
Defendant and Appellant.
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.
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.
2
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
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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
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.
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(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
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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.
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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
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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:
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_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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