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,                            B293491

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. SA095648)
       v.

GREGORY STEVEN GARCIA,

       Defendant and Appellant.


      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.
                              ******
       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 In the unpublished portion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.




                                 2
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 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
        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.




                                 3
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].)




                                  4
       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




                                5
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




                                 6
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




                                  7
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.)




                                 8
       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.




                                9
       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.)




                                10
       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




                                 11
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.)




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                          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




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