Filed 5/19/20
See Concurring Opinions
                          CERTIFIED FOR PARTIAL PUBLICATION

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                       DIVISION TWO



 THE PEOPLE,

           Plaintiff and Respondent,                    E071361

 v.                                                     (Super.Ct.No. RIF1603061)

 RICHARD VALLES,                                        OPINION

           Defendant and Appellant.




          APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

          Jean Ballantine, under appointment by the Court of Appeal, for Defendant and

Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Warren J. Williams, Paige B.

Hazard and Steven T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.




         Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
          certified for publication with the exception of part II, section 1.
                                               1
       Richard Valles, defendant, got into a fight with the victim Michael Carmona, after

Carmona pushed defendant’s girlfriend down at a river-side homeless camp. Defendant

had to break off the fight when he felt a seizure beginning and left the camp. In the

meantime, his tent-mate and one-time codefendant, Jesus Renteria, attacked the victim

with a knife, inflicting multiple serious wounds. When defendant returned to the camp,

he saw a piece of carpet covering the victim where he lay on the ground. Defendant

obtained a firearm from his tent and shot the victim in the head, claiming he did so to put

the victim out of his misery, although he thought the victim was dead. After a trial, the

jury returned verdicts convicting defendant of first-degree murder (Pen. Code, § 187,

subd. (a))1 and finding that in the commission of the murder defendant personally and

intentionally discharged a firearm causing the death of the victim (§ 12022.53, subd. (d)).

Defendant was sentenced to state prison for an aggregate term of 50 years to life and

appealed.

       On appeal, defendant argues that (1) his due process rights were violated by the

trial court’s failure to instruct the jury on a theory of heat of passion voluntary

manslaughter; (2) the court erred in imposing the minimum restitution fine and other fees

and assessments without determining if defendant had an ability to pay; and (3) the term

imposed for the gun discharge enhancement must be remanded to allow the court to

exercise discretion to consider a lesser included enhancement. We affirm.




       1
           All further statutory references are to the Penal Code, unless otherwise stated.

                                               2
                                                  I.

                                          BACKGROUND

       Defendant and his girlfriend, Cricket, lived in a tent with Jesus Renteria in a tight-

knit homeless camp along the Santa Ana River in Riverside. Defendant was acquainted

with victim Michael Carmona, known as “Bear,” and had fought with him on occasion.

       In June 2016, defendant and Carmona started fighting after Carmona pushed

Cricket down and struck her, after kicking Cricket’s dog. Defendant and Carmona

wrestled for 15 or 20 minutes, until defendant felt he was going to have a seizure and let

go of Carmona to go down to the river. When he left, “Colt” intervened and administered

a choke hold until Carmona lost consciousness.

       A short time later, when Carmona regained consciousness, Renteria went into a

tent, came out with a knife and proceeded to stab Carmona multiple times. When the

stabbing stopped, Carmona emitted gargling and gasping sounds and appeared to be

dying. Renteria handed the knife to another camp resident, Peter Strother, who had

observed the stabbing, and left. Strother put the knife in a container inside his tent, to

keep it for investigators. After Renteria left, Strother could hear Carmona breathing.

Defendant returned to the camp, where Strother was waiting, carrying a rifle. Defendant

walked up to the victim, whose face was covered with a carpet, and pulled the trigger,

after which Strother saw and heard no further movement or breathing from the victim.

       On June 18, 2016, law enforcement officers found Carmona in a shallow grave

approximately 25 feet from defendant’s tent, with the assistance of a cadaver-sniffing



                                              3
dog. The body was still wrapped in carpet. Officers also discovered a .22-caliber bolt-

action single-shot rifle in defendant’s tent, and they recovered the knife and a .22-caliber

casing from Strother’s tent.

         By the time Carmona’s body was found, it was already moderately decomposed.

The pathologist noted several knife wounds, but not all of them did major damage. One

wound punctured the victim’s lung, and another pierced the lower chest and upper

abdomen, either of which could have eventually killed the victim within a matter of

minutes.

         In addition, there was a gunshot wound to the victim’s head, which fractured the

skull from the inside. The bullet, which did not exit the skull, was found inside the brain.

The bullet wound would have caused death immediately. Any of the three major wounds

could have killed the victim, but death would have occurred over an interval of minutes.

         The ultimate cause of death was attributed to homicidal violence, meaning there

was more than one type of violent act. The pathologist could not say for certain, based

on the decomposition of the body, that the victim was alive when the bullet entered his

brain.

         Defendant was charged with murder (§ 187, subd. (a)) along with an enhancement

allegation that he personally and intentionally discharged a firearm causing great bodily

injury and death within the meaning of section 12022.53, subdivision (d). He was tried

by a jury, where defendant testified in his own defense.




                                              4
       According to defendant, when he felt a seizure coming on, he went down to the

river, and while there he heard Renteria say, “Oh s—t, he’s dead” or “Oh s—t, he’s

gone.” Approximately 10 minutes later, defendant returned to the camp, where he saw

Carmona lying on his back, covered in blood, and not breathing. Carmona was wrapped

in a carpet. Defendant knew he was not breathing because he put his hands in front of the

victim’s nose to check for breathing. Carmona was not moving at all or making any

noise. Defendant then went into his tent to get his gun, walked over to Carmona and shot

him. By this time, Carmona’s head was covered.

       Defendant explained he shot Carmona because he thought the brain could still feel

pain, likening the situation to when a chicken is decapitated, and defendant wanted to put

Carmona at ease. He denied telling officers that Carmona was moving, although he

recalled telling them that he saw movement that he thought was Carmona’s nerves

settling. He explained that when he told police he might have seen movement, he did not

really see movement, but was just freaking out. He was sure Carmona was dead. Later,

defendant buried the victim.

       On rebuttal, Detective Cobb referred to defendant’s interview, taped at the station,

in which defendant denied any involvement in the homicide until being confronted with

statements of other witnesses. Defendant never told the detective anything about

thinking that dead people feel pain, but, instead, told the detective he was putting

Carmona out of his misery after acknowledging there was movement on the part of the

victim.



                                             5
       Defendant was convicted as charged of first-degree murder (§ 187, subd. (a)), and

the jury also returned a true finding that defendant discharged a firearm in the

commission of the murder. On August 3, 2018, the court sentenced defendant to state

prison for an aggregate term of 50 years to life, comprised of a term of 25 years to life for

the first-degree murder, as well as 25 years to life for the gun discharge enhancement.

       In addition, the court ordered defendant to pay victim restitution in the amount of

$925.00 pursuant to section 1202.4, subdivision (f), along with $300, the minimum

restitution fine, pursuant to section 1202.4, subdivision (b), and a $300 parole-revocation

restitution fine, which was suspended unless parole is revoked, pursuant to section

1202.45, subdivision (c). The court also imposed a criminal conviction assessment fee of

$30 pursuant to Government Code section 70373, and an operations assessment in the

amount of $40, pursuant to Penal Code, section 1465.8, subdivision (a)(1). On January

14, 2019, the court modified the sentence, finding defendant lacked the ability to pay the

booking fee, the fee for preparation of the probation report, or the presentence

incarceration costs, staying the imposition of those amounts.

       Defendant timely appealed.




                                              6
                                                  II.

                                           DISCUSSION

       1.     The Trial Court Was Not Required to Instruct on Heat of Passion Voluntary

Manslaughter.

       Background

       Defendant requested instructions on voluntary manslaughter based on sudden

quarrel or heat of passion as a lesser offense of murder. The trial court concluded there

was no viable theory for voluntary manslaughter because of all the breaks in time and

because defendant’s own testimony was completely contrary to a theory of sudden

quarrel, heat of passion. The court subsequently instructed the jury on first- and second-

degree murder, as well as involuntary manslaughter.

       Defendant argues the trial court erred in concluding there was “no viable theory

for voluntary manslaughter” and in failing to instruct on the lesser included offense.

Specifically, he claims that the failure to instruct on manslaughter constitutes federal

constitutional error because it relieved the prosecution of its burden to prove malice

beyond a reasonable doubt. We disagree.

       Legal Principles

       On appeal, we review independently the question whether the trial court

improperly failed to instruct on a lesser included offense. (People v. Souza (2012) 54

Cal.4th 90, 113.)




                                              7
        “‘It is settled that in criminal cases, even in the absence of a request, the trial court

must instruct on the general principles of law relevant to the issues raised by the

evidence. [Citations.] The general principles of law governing the case are those

principles closely and openly connected with the facts before the court, and which are

necessary for the jury’s understanding of the case.’” (People v. Breverman (1998) 19

Cal.4th 142, 154, quoting People v. St. Martin (1970) 1 Cal.3d 524, 531.)

        The obligation to instruct on general principles includes the duty to give

instructions on lesser included offenses when the evidence raises a question as to whether

all elements of the charged offense were present, but not when there is no evidence that

the offense was less than that charged. (People v. Breverman, supra, 19 Cal.4th at p.

154, citing People v Hood (1969) 1 Cal.3d 444, 449-450; People v. Noah (1971) 5 Cal.3d

469, 479; People v. Osuna (1969) 70 Cal.2d 759, 767.) “Such instructions [on lesser

included offenses] are required when, but only when, a jury could reasonably conclude

that the defendant committed the lesser offense but not the greater one.” (People v.

Hardy (2018) 5 Cal.5th 56, 98, citing People v. Breverman, supra, 19 Cal.4th at pp. 161-

162.)

        Voluntary manslaughter is a lesser included offense of murder. (People v. Duff

(2014) 58 Cal.4th 527, 561.) “Heat of passion, which likewise reduces murder to

voluntary manslaughter, arises when the defendant is provoked by acts that would ‘render

an ordinary person of average disposition “liable to act rashly or without due deliberation




                                                8
and reflection, and from this passion rather than from judgement’” [citation], and kills

while under the actual influence of such a passion [citation].” (Id. at p. 562.)

       A defendant must actually be motivated by passion in committing the killing.

(People v. Beltran (2013) 56 Cal.4th 935, 951.) “‘[I]f sufficient time has elapsed

between the provocation and the fatal blow for passion to subside and reason to return,

the killing is not voluntary manslaughter. . . . ’” (Beltran, supra, at p. 951, citing People

v. Wickersham (1982) 32 Cal.3d 307, 327, disapproved on another ground in People v.

Barton (1995) 12 Cal.4th 186, 201.)

       Here, the evidence is uncontradicted that after wrestling with the victim (over the

victim’s assault on defendant’s girlfriend) for several minutes, defendant went down to

the river because he felt a seizure coming on. By his own testimony, he was down at the

river for about 20 to 30 minutes before returning to the camp. In the meantime, he had

heard Renteria say either that “he’s dead” or “he’s gone,” and when defendant returned to

the camp 10 minutes after hearing that statement, he saw the victim lying helpless on the

ground, covered with blood and not breathing. Defendant did not testify that he was still

upset or angry over the victim’s assault on defendant’s girlfriend, nor did he testify that

he felt threatened by the victim.

       While defendant described feeling “freaked out” when he told police investigating

the crime that he had seen movement on the part of the victim as he lay on the ground, he

did not describe any passion that would render an ordinary person of average disposition

“liable to act rashly or without due deliberation and reflection,” and killing under the



                                              9
influence of that passion. He certainly did not describe his actions at the time of the

shooting as having been performed under heat of passion as he entered his tent to get his

gun, and then return to the victim to shoot him in the head. He had cooled off.

       By a parity of reasoning, defendant could not rely on the victim’s earlier assault on

defendant’s girlfriend as creating sufficient anger to mitigate the crime, warranting a

voluntary manslaughter instruction, where the victim-aggressor had been rendered

helpless before defendant returned to the camp and went for his gun. In any event,

defendant’s testimony, and his pretrial statements to police, that he shot the victim to put

him out of his misery, precludes any notion that he was motivated by any desire to defend

his girlfriend, or because he was “freaked out,” when he obtained his rifle from his tent

and then shot the helpless (and either dying or dead) victim in the head.

       To suggest that defendant’s actions were comparable to those of an ordinary

person of average disposition is unreasonable. An ordinary person of average

disposition, upon seeing a stabbing victim bleeding on the ground, does not get a rifle to

finish him off. The average person of ordinary disposition would seek emergency

assistance for the victim, or so we hope. The fact that the defendant did not seek

emergency assistance for the victim, and, instead, procured a rifle to put him out of his

misery, speaks volumes about defendant’s mental state at the time of the shooting. He

intended to make sure the victim was dead.

       Thus, the only evidence of defendant’s mental state was that of premeditation and

deliberation when he entered his tent, obtained the firearm, returned to where the victim



                                             10
lay, and shot him in the head. There is no evidence that the offense was less than that

charged. (People v. Breverman, supra, 19 Cal.4th at p. 154.) There was no error in

refusing to instruct the jury on the theory of heat of passion voluntary manslaughter.

       2.     The Trial Court Properly Considered Defendant’s Inability to Pay in

Ordering the Minimum Restitution Fine.

       Defendant argues that the $300 restitution and parole revocation restitution fines

(§§ 1202.4, subd. (b), 1202.45), the $40 court operations fee (§ 1465.8), and the $30

court facilities fee (Govt. Code, § 70373) must be vacated because the imposition of

those fees violated his due process rights.

       Defendant acknowledges that the court did make a finding that he lacked ability to

pay for the preparation of the probation report, the booking fee, and the presentence

incarceration costs; he also acknowledges that he failed to object to the imposition of the

restitution fines. Nevertheless, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157

(Dueñas), he argues that the court improperly imposed the additional fines and fees. We

disagree.2

       Restitution Fines

       We begin by noting that while Dueñas and other recent decisions have treated

restitution fines as comparable to the various fees imposed for court operations, probation


       2
         Justice Miller concurs with the result, and Justice Menetrez agrees with the
concurrence. However, Justice Menetrez objects to the plurality opinion, arguing that
Justice Miller should be replaced as the author. Justice Menetrez does not cite any
authority or Internal Operating Procedures requiring any specific panel action where the
separate opinions are unanimous on the outcome.

                                              11
report preparation and court facilities fees, they are not equivalent, and must be treated

differently. The imposition of a restitution fine is punishment. (People v. Allen (2019)

41 Cal.App.5th 312, 321, citing People v. Guillen (2013) 218 Cal.App.4th 975, 984.)

Court fees are not. (People v. Alford (2007) 42 Cal.4th 749, 757; see also People v.

Knightbent (2010) 186 Cal.App.4th 1105, 1112.) Because the restitution fine is intended

as punishment, it is subject to challenge under the excessive fines clause of the Eighth

Amendment of the federal Constitution and article I, section 17 of the California

Constitution.

       It has long been held that the law mandates the sentencing court to impose a

restitution fine of at least the statutory minimum and is not required to make a finding of

a defendant’s ability to pay before imposing the statutory minimum fine. (§ 1202.4,

subd. (c); People v. Avila (2009) 46 Cal.4th 680, 729.) In fact, the statute expressly states

that inability to pay is not a compelling and extraordinary reason not to impose a

restitution fine. (§1202.4, subd. (c).) Because the court imposed the statutory minimum

restitution fine, no ability to pay hearing was required. (§ 1202.4, subd. (d); People v.

Wall (2017) 3 Cal.5th 1048, 1076, citing People v. Covarrubias (2016) 1 Cal.5th 838,

935-936.)

       An ability-to-pay hearing is required only where the court imposes a restitution

fine exceeding the statutory minimum.3 (§ 1202.4, subd. (c); In re Enrique Z. (1994) 30

       3
         The concurrence by J. Miller, to which J. Menetrez concurs, agrees there is no
need for a remand, but would have concluded it is fundamentally unfair to impose a fine
on those who could not afford to pay the fine. However, our colleagues do not address


                                             12
Cal.App.4th 464, 468-469.) As the trial court is not required to make express findings

concerning a defendant’s ability to pay a restitution fine, the absence of findings does not

demonstrate it failed to consider this factor. (People v. Nelson (2011) 51 Cal.4th 198,

227, citing People v. Gamache (2010) 48 Cal.4th 347, 409.) We disagree with the

conclusion that there is a due process requirement that the court hold an ability to pay

hearing before imposing a minimum restitution fine.

       Additionally, defendant has forfeited any objection to the imposition of the

restitution fine and the parole revocation restitution fine by failing to object at the

sentencing hearing. (People v. Gamache, supra, 48 Cal.4th at p. 409; People v. Jenkins

(2019) 40 Cal.App.5th 30, 40; People v. Forshay (1995) 39 Cal.App.4th 686, 689; People

v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)

       The decision in Dueñas broke with longstanding precedent in requiring the court

to consider ability to pay before imposing the statutory minimum restitution fine and

permitting an appellate challenge to the fine absent an objection in the trial court. The

decision also ignores precedents holding that section 1203.4 presumes a defendant has

the ability to pay the fine (People v. DeFrance (2008) 167 Cal.App.4th 486, 505, citing

People v. Romero (1996) 43 Cal.App.4th 440, 448), and that the court is not required to

make express findings on that issue. (People v. Hennessey (1995) 37 Cal.App.4th 1830,


the express language of section 1202.4, subdivision (c) which expressly provides, “A
defendant’s inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the minimum fine pursuant to
paragraph (1) of subdivision (b).” (Italics added.)

                                              13
1836.) We therefore decline to follow Dueñas as it pertains to the imposition of a

statutorily minimum restitution fine.

       Court Facilities Fee

       As for the court facilities fee pursuant to Government Code, section 70373, the

issue was not forfeited by defendant’s failure to object, pursuant to Dueñas. (See People

v. Johnson (2019) 35 Cal.App.5th 134, 138; but see People v. Frandsen, supra, 33

Cal.App.5th at p. 1153.) However, that does not mean remand is required.

       The record does not establish that defendant has a present inability to pay. While

he was homeless at the time of the offense, and has since been committed to state prison,

this circumstance does not necessarily establish an inability to pay absent evidence he is

ineligible for prison work programs. (See People v. Gamache, supra, 48 Cal.4th at p.

409.) A court may consider a defendant’s ability to earn prison wages in determining

ability to pay. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)

       As defendant will be serving a lengthy prison sentence and the amount of the fees

is small, it is appropriate for the court to consider the wages that he may earn in prison.

(See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a

defendant’s ability to obtain prison wages]; § 2085.5 [outlining how a restitution fine

balance may be collected from prison wages].) Absent evidence defendant is not eligible

for work while committed to state prison, he has not met his burden of establishing his

inability to pay. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)

       Thus, remand is unnecessary.



                                             14
       3.     The Trial Court Properly Understood the Extent of Its Discretion in

Imposing the Gun Discharge Enhancement.

       At trial, the jury made a true finding on the gun discharge enhancement allegation

pursuant to section 12022.53, subdivision (d). In supplemental briefing, defendant argues

that the gun discharge enhancement pursuant to section 12022.53, subdivision (d), must

be reversed and remanded because the trial court did not understand that the extent of its

discretion included the discretion to impose a lesser enhancement pursuant to either

section 12022.53, subdivision (b) or (c).

       Defendant does not argue that the enhancement is unsupported by substantial

evidence, or that there is a legal impediment to imposition of the enhancement. Instead,

he relies on the recent decision in People v. Morrison (2019) 34 Cal.App.5th 217, in

arguing that remand is compelled because the trial court did not appreciate the scope of

its discretion pursuant to the statutory amendments facilitated by Senate Bill 620. We

disagree.

       Section 12022.53, subdivision (d), provides that “Notwithstanding any other

provision of law, any person who, in the commission of a felony specified in subdivision

(a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally

discharges a firearm and proximately causes great bodily injury, as defined in Section

12022.7, or death, to any person other than an accomplice, shall be punished by an

additional and consecutive term of imprisonment in the state prison for 25 years to life.”

Subdivision (j) of section 12022.53 provides, “For the penalties in this section to apply,



                                             15
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.” (Italics added.)

       Prior to 2017, section 12022.53, subdivision (h), prohibited the trial court from

striking an allegation under the section or a finding bringing a person within the

provisions of the section, notwithstanding section 1385. (Former § 12022.53, subd. (h).)

However, in 2017, the Legislature enacted Senate Bill 620 (Stats. 2017, ch. 682 § 2, pp.

5104-5106, eff. Jan. 1, 2018, amending §§ 12022.5 and 12022.53). The Legislative

Counsel’s Digest explains that SB 620 “would delete the prohibition on striking an

allegation or finding and, instead, would allow a court, in the interest of justice and at the

time of sentencing or resentencing, to strike or dismiss an enhancement otherwise

required to be imposed . . . .”

       Notably, both the current and former versions of subdivision (h) of section

12022.53 referred to a trial court’s discretion to dismiss or strike pursuant to section

1385. The power to dismiss an action includes the power to dismiss or strike an

enhancement. (People v. Thomas (1992) 4 Cal.4th 206, 209; People v. Luckett (1996) 48

Cal.App.4th 1214, 1218.)

       But the power to dismiss or strike does not necessarily include a broad discretion

to impose a lesser enhancement. Nothing in the language of section 1385, nor in the

cases interpreting the trial court’s discretionary authority, refers to a court’s discretion to

impose a lesser enhancement, except “when a greater enhancement found true by the trier



                                               16
of fact is either legally inapplicable or unsupported by sufficient evidence.” (People v.

Fialho (2014) 229 Cal.App.4th 1389, 1395-1396 [§ 12022.53 enhancement precluded by

conviction of offense not listed in § 12022.53, subd. (a)]; People v. Strickland (1974) 11

Cal.3d 946, 961; People v. Lucas (1997) 55 Cal.App.4th 721, 743; People v. Allen (1985)

165 Cal.App.3d 616, 627 [armed enhancement per § 12022 imposed where § 12022.5 did

not apply to conviction]; People v. Dixon (2007) 153 Cal.App.4th 985, 1001-1002

[§ 12022, subd. (b) deadly weapon enhancement substituted for § 12022.53, subd. (b)

where BB or pellet gun was used and did not qualify as a firearm under the statute].)

       Citing these authorities, Division Five of the Court of Appeal, First Appellate

District recently held that the amendment to section 12022.53, subdivision (h), conferred

on trial courts the authority to impose lesser enhancements in the exercise of the court’s

discretion. (People v. Morrison, supra, 34 Cal.App.5th at p. 222.) However, the notion

that Senate Bill 620 confers a broad discretion to impose a lesser enhancement whenever

the court, in its discretion, determines it is appropriate does not logically flow from a

body of authority holding that a lesser enhancement may be imposed where there is a

legal impediment to the imposition of a greater enhancement.4 As reviewing courts, our

role in construing a statute should ordinarily be to determine the objective meaning of its



       4
         In his concurrence, Justice Menetrez incorrectly states, “So the question is
whether, having stricken an enhancement pursuant to amended section 12022.53, the
sentencing court has the power to impose an uncharged lesser included enhancement.”
(Conc. opn., p. 3 [italics added].) The record shows that the trial court refused to strike
the § 12022.53, subd. (d) enhancement, so the reasoning by my colleague is inapposite.


                                             17
provisions, and we may not rewrite a statute to conform to a presumed intent that is not

expressed. (People v. Statum (2002) 28 Cal.4th 682, 692.)

        The express language of sections 1385 and 12022.53, subdivision (h) refers only

to dismissing (or striking) actions or enhancements; neither section authorizes the

substitution of a lesser enhancement for a greater enhancement, properly found true at

trial, and for which there is no legal impediment to imposition. It does not give the court

the right to disregard the verdict of a jury and pronounce a sentence that does not respond

to the verdict as rendered. (People v. Superior Court (Prudencio) (1927) 202 Cal. 165,

173.)

        California courts have refused to permit trial courts to invoke section 1385 to

reduce a verdict of first-degree murder to second-degree murder (People v. Superior

Court (Prudencio), supra), or to reduce the offense of conviction to an uncharged lesser

related offense (People v. Smith (1975) 53 Cal.App.3d 655, 657-658), or to disregard

sentencing factors, which similarly were not included as offenses or allegations in an

accusatory pleading. (In re Varnell (2003) 30 Cal.4th 1132, 1137.)

        Defendant appears to have conflated a trial and/or appellate court’s authority to

modify a verdict, finding or judgment upon a motion for new trial or on appeal where the

evidence shows the defendant to be not guilty of the degree of the crime of which he was

convicted, but guilty of a lesser degree of the thereof. (§ 1181, subd. (6).) That section

also authorizes a trial court, upon a motion for new trial or on appeal, to impose lesser

punishment when the verdict or finding is contrary to law or evidence and where the



                                             18
court or jury has authority to recommend or determine the punishment to be imposed.

(§ 1181, subds. (6), (7).) In other words, a trial or appellate court may modify a judgment

where there is a legal impediment to imposition of punishment pursuant to a finding

made by the jury. (People v. Fialho, supra, 229 Cal.App.4th at pp. 1395-1396.) But the

authority to do so is not conferred by section 1385.

       To date, one other court has recently rejected the reasoning of Morrison in a

published decision, concluding that prosecuting authorities have the sole discretion to

determine what charges to bring. (People v. Tirado (2019) 38 Cal.App.5th 637, 644,

review granted Nov. 13, 2019, S257658 [no change in publication status per Cal. Rules of

Court, rule 8.1105(e)(1)(B)], citing People v. Birks (1998) 19 Cal.4th 108, 134.) We are

of the same opinion. Support for this interpretation is found in subdivision (j) of section

12022.53, requiring pleading and proof of any gun use or discharge allegation before

imposing an enhancement based on that allegation. The pleading and proof requirement

is inconsistent with any presumption that the true finding on subdivision (d) of section

12022.53 includes a true finding on any lesser enhancements.

       Here, an allegation was charged pursuant to section 12022.53, subdivision (d), and

the jury found that allegation to be true. No other enhancements were alleged in the

information, nor found to be true. Absent a legal impediment to imposition of that

enhancement, it was not within a trial court’s section 1385 discretion to unilaterally

disregard the jury’s finding and impose a lesser, uncharged and unfound, enhancement.

Therefore, we decline to follow the conclusion of Morrison that the amendments to



                                             19
sections 1385 and 12022.53, subdivision (h), confer upon the trial court a broad

discretion to not only dismiss or strike an enhancement, but to exercise discretion to

impose a lesser enhancement.

       In the absence of a legislative pronouncement to that effect, and in the absence of

circumstances showing that the greater enhancement is either legally inapplicable or

unsupported by sufficient evidence, the scope of sections 1385 and 12022.53, subdivision

(h), authorizes a court to exercise discretion, in the furtherance of justice, to strike or

dismiss a gun discharge enhancement only, unless there is a legal impediment to

imposition of the greater enhancement.

                                                    III.

                                            DISPOSITION

       The judgment is affirmed. The concurring opinion of Justice Miller contains the

majority view on the analysis of issue number 2, ability to pay restitution fine. However,

the majority reach the same result as the lead opinion.

       CERTIFIED FOR PARTIAL PUBLICATION
                                                                          RAMIREZ
                                                                                              P. J.




                                               20
[People v. Valles, E071361]

       Miller, J., concurring

       I concur in all aspects of this opinion with the exception of the analysis of issue

number 2, ability to pay the minimum restitution fine.

       I concur in the result the lead opinion reaches in finding that remand is not

necessary for an ability to pay hearing for the $300 minimum restitution fine imposed

pursuant to Penal Code section 1202.4, subdivision (b); the parole revocation fine

imposed pursuant to Penal Code section 1202.45; and the fees imposed pursuant to

Government Code section 70373 and Penal Code section 1465.8 after the recent case of

People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).1 However, I would resolve the

issue differently from the lead opinion as to the minimum restitution fine. In Dueñas, the

court recognized, “[u]nlike the assessments . . . the restitution fine is intended to be, and

is recognized as, additional punishment for a crime.” (Id. at p. 1169.) It found that even

though a minimum restitution fine was punishment, it was fundamentally unfair to

impose the fine on those who could not afford to pay the fine. (Id. at pp. 1169-1170.)

       In Dueñas, the court addressed section 1202.4 and found, “The statutory scheme

thus results in a limitation of rights to those who are unable to pay. The heart of the due



       1
         The lead opinion appears to find that Dueñas applies to the fee imposed pursuant
to Government Code section 70373. The lead opinion does not address the fees imposed
pursuant to Penal Code section 1465.8 but it appears it would agree the same analysis
would apply as to the Government Code section 70373 fee. We agree with the lead
opinion that even if an ability to pay hearing was required, any failure to hold one was
clearly harmless.

                                              1
process inquiry is whether it is ‘fundamentally unfair’ to use the criminal justice system

to impose punitive burdens on probationers who have ‘made all reasonable efforts to pay

the fine or restitution, and yet cannot do so through no fault of [their] own . . . .’

[Citation.] Penal Code section 1202.4 is not a substitute for due process.” (Dueñas,

supra, 30 Cal.App.5th at p. 1171, fn. omitted.) It concluded that a trial court should

impose and stay the minimum restitution fine until the People could show the defendant

had an ability to pay the fine. It is this due process argument that defendant is raising on

appeal in contesting the imposition of the minimum restitution fine, not that the fine was

excessive.2

       This court in People v. Jones (2019) 36 Cal.App.5th 1028, 1033 rejected that a

defendant could be found to have forfeited a Dueñas claim as to a minimum restitution

fine imposed pursuant to Penal Code section 1202.4, subdivision (b) because it was a

novel argument and could not have been anticipated by the defendant prior to Dueñas.

(Dueñas, at pp. 1033-1034.) Similarly, here, I would find that defendant in this case has




       2
          We also note that in Dueñas, the court noted that an Amicus Curiae brief had
been filed by the Los Angeles County Public Defender arguing that imposing a restitution
fine without evaluating the defendant’s ability to pay also violated the ban on excessive
fines in the United States and California Constitutions. The Dueñas court stated that
“The due process and excessive fines analyses are sufficiently similar that the California
Supreme Court has observed that ‘[i]t makes no difference whether we examine the issue
as an excessive fine or a violation of due process.’ ” (Dueñas, supra, 30 Cal.App.5th at p.
1171, fn. 8) As such, the Dueñas court recognized the potential for an additional
argument that the failure to conduct an ability to pay hearing violated the ban on
excessive fines and fees but it analyzed the issue as a violation of due process.


                                               2
not forfeited the Dueñas argument that an ability to pay hearing is required as to the

minimum restitution fine.3

       Such conclusion does not change the result because even if Duenas does require

an ability to pay finding as to a minimum restitution fine, any conceivable error in failing

to make such finding was harmless. As the lead opinion found for the fees imposed, any

conceivable error was additionally harmless for the $300 restitution fine as defendant was

given a lengthy sentence and could pay the fine out of his prison wages.




                                                         MILLER
                                                                                           J.




       3
        The California Supreme Court will ultimately decide this issue as it has granted
review in People v. Kopp, review granted on November 13, 2019, S257844.

                                             3
[People v. Valles, E071361]

       MENETREZ, J., Concurring.

       The opinion authored by Presiding Justice Ramirez is not a majority opinion. No

member of the panel joins the analysis in Part 2 of the Discussion concerning People v.

Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), though we are unanimous as to the result.

I feel compelled to point this out because otherwise readers could easily be misled. Only

by reading the disposition and understanding its import (or by noticing that no one else

has signed Presiding Justice Ramirez’s opinion) would a reader be able to determine that

not everything in Presiding Justice Ramirez’s opinion is the opinion of the court. Given

that Court of Appeal opinions (both published and unpublished) are often read in snippets

online, dispositions are rarely read by anyone but the parties, and signatures are probably

read even less, the potential for confusion here is far from trivial.

       In addition, Presiding Justice Ramirez is publishing his Dueñas analysis, which is

not joined by any other member of the panel and conflicts with this division’s published

precedent in People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034 (Jones), which held

that a Dueñas challenge to a pre-Dueñas minimum restitution fine is not forfeited by

failure to raise it in the trial court. Presiding Justice Ramirez’s opinion does not explain

why he is declining to follow Jones; the opinion does not even acknowledge that he is

doing so. Moreover, in a footnote within his Dueñas analysis, Presiding Justice Ramirez

erroneously refers to his own opinion as “the plurality opinion.” (Lead opn., ante, at

p. 11, fn. 2.) “An opinion is characterized as a plurality opinion when it has more

signatories than any other opinion supporting the judgment in the cause,


                                               1
but less than a majority.” (Cal. Style Manual (4th ed. 2000) § 1:10, p. 13.) Presiding

Justice Ramirez’s opinion has the same number of signatories as every other opinion in

this case (namely, one), and every opinion in the case supports the judgment (on which

we are unanimous). In sum, Presiding Justice Ramirez is publishing a dissenting view on

the Dueñas issue that is inconsistent with our division’s published precedent, and he is

presenting it as a plurality opinion.

       Justice Miller is the only member of the panel who is in the majority on every

issue, both reasoning and result. Our division’s policy (as well as common sense)

dictates that Justice Miller should therefore author the majority opinion. But my

colleagues have chosen a different path, with Presiding Justice Ramirez authoring a lead

opinion that expresses a minority analysis of the Dueñas issue.

       For my part: I concur in the judgment and in Presiding Justice Ramirez’s opinion

except as to Parts 2 and 3 of the Discussion. I also concur in Justice Miller’s analysis of

the Dueñas issue.

       All that remains is for me to address the split between People v. Morrison (2019)

34 Cal.App.5th 217 (Morrison) and People v. Tirado (2019) 38 Cal.App.5th 637, review

granted November 13, 2019, S257658 (Tirado). Our division recently published an

opinion rejecting Morrison and following Tirado. (People v. Yanez (2020) 44

Cal.App.5th 452, review granted Apr. 22, 2020, S260819 (Yanez).) In the present case,

Presiding Justice Ramirez (joined by Justice Miller) offers his own analysis in support of

following Tirado. I am not aware of any basis to depart from our division’s decision in

Yanez, so I concur in the judgment as to that issue as well.


                                             2
       But in my view Tirado and Yanez (and Presiding Justice Ramirez’s similar

analysis) are mistaken, and I believe it is worth setting forth my reasons.

       The issue is whether a court that strikes a firearm enhancement under Penal Code

section 12022.53 (section 12022.53) has discretion to impose an uncharged lesser

included enhancement. (Morrison, supra, 34 Cal.App.5th at pp. 220-221; Yanez, supra,

44 Cal.App.5th at pp. 455, 458.) Morrison holds that the court has that discretion

(Morrison, at p. 220), but Tirado and Yanez hold that it does not (Tirado, supra, 38

Cal.App.5th at pp. 639-640; Yanez, at pp. 458-460).

       Section 12022.53 provides for various firearm enhancements and, before the

Legislature amended the statute in 2017, expressly prohibited the striking of those

enhancements. (Morrison, supra, 34 Cal.App.5th at p. 221.) As amended, however, the

statute now expressly allows for those firearm enhancements to be stricken “in the

interest of justice.” (§ 12022.53, subd. (h); see Morrison, at pp. 221-222.) So the

question is whether, having stricken an enhancement pursuant to amended

section 12022.53, the sentencing court has the power to impose an uncharged lesser

included enhancement.

       Prior case law uniformly holds that the court does have the power to impose an

uncharged lesser included enhancement when a greater enhancement is stricken. (People

v. Fialho (2014) 229 Cal.App.4th 1389, 1395-1396; People v. Strickland (1974) 11

Cal.3d 946, 961; 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, 1001-1002.)

Those cases involved stricken enhancements that were either legally inapplicable or not


                                             3
supported by sufficient evidence, rather than enhancements that were stricken in the

interest of justice and through an exercise of the court’s discretion. But I am aware of no

reason why the judicial power to impose an uncharged lesser included enhancement

would exist in the one context but not in the other. If a sentencing court has a long-

established power to impose an uncharged lesser included enhancement after striking a

greater enhancement that is legally inapplicable, why would that power disappear when

the greater enhancement is stricken in the interest of justice under amended

section 12022.53?

       I consequently believe that Tirado and Yanez frame the issue incorrectly by asking

whether the amended statute “conveys the power to change, modify, or substitute a

charge or enhancement.” (Tirado, supra, 38 Cal.App.5th at p. 643; see Yanez, supra, 44

Cal.App.5th at p. 458 [“the question we consider here is whether the statute, as amended,

provides authority for a trial court to exercise discretion to impose a lesser included,

uncharged enhancement”].) The question is not whether the amended statute conveys the

power to impose an uncharged lesser enhancement (or change or modify an

enhancement). Rather, the question is whether, having exercised its power under the

amended statute to strike a greater enhancement, the court still has its previously

recognized power to impose an uncharged lesser. Again, I am aware of no reason why it

would not. The statutory amendment did not convey the power to impose the uncharged

lesser. The court had that power already.

       I am also unpersuaded by the separation of powers concerns articulated in Tirado,

supra, 38 Cal.App.5th at page 644, and Yanez, supra, 44 Cal.App.5th at pages 459-460.


                                              4
Under prior case law, when (1) the prosecution exercises its discretion to place an all-or-

nothing wager by charging only a greater enhancement and no lessers, and (2) the

prosecution loses because the greater enhancement turns out to be legally inapplicable or

factually unsupported, the trial court has the power to spare the prosecution from the full

consequences of its bad bet by imposing an uncharged lesser included enhancement.

(People v. Fialho, supra, 229 Cal.App.4th at pp. 1395-1396.) No one has ever thought

the existence or exercise of that power raises separation of powers concerns because of

judicial encroachment on prosecutorial discretion. In my view, the separation of powers

argument is similarly implausible here.

       For similar reasons, I disagree with the separation of powers analysis in People v.

Garcia (2020) 46 Cal.App.5th 786 (Garcia), which also follows Tirado and rejects

Morrison. Garcia asserts that the trial court’s previously recognized power to impose an

uncharged lesser included enhancement is merely a power “to salvage as much of the

prosecutor’s charging decision . . . as possible,” so as to “effectuate” the prosecutor’s

exercise of discretion. (Garcia, supra, at p. 793.) In my view, it is nothing of the kind.

In the circumstances at issue, the prosecution has exercised its discretion not to charge

the lesser included enhancements. It could have charged them, but it chose not to.

Rather, it chose to go all-or-nothing. If the only charged enhancement turns out to be

legally inapplicable or factually unsupported, then effectuating the prosecutor’s exercise

of discretion would require imposing no enhancement at all. That was the prosecutor’s

choice. Imposing an uncharged lesser in those circumstances thus does not effectuate the

prosecutor’s exercise of discretion. It thwarts it. In effect, the holding of Tirado is that


                                              5
such a power to thwart the prosecutor’s exercise of discretion exists when it would

benefit the prosecution but not when it would benefit the defense.

       For all of these reasons, I respectfully disagree with Tirado, Yanez, and Garcia

(and Presiding Justice Ramirez’s similar analysis). But mindful of principles of stare

decisis, I am aware of no basis to depart from our division’s recent decision in Yanez, so I

concur in the judgment.1

                                                               MENETREZ
                                                                                          J.




1
        I recognize that there are various interpretations of the familiar proposition that
there is no horizontal stare decisis in the California Court of Appeal. (In re Marriage of
Shaban (2001) 88 Cal.App.4th 398, 409.) In my view, we should treat the published
opinions of other divisions and districts as persuasive authority, but we should normally
follow the published opinions of our own division, absent a sufficient reason to depart
from them. (See Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit
Assn. (2013) 55 Cal.4th 1169, 1180 & fn. 9; Eisen v. Tavangarian (2019) 36 Cal.App.5th
626, 637; Opsal v. United Services Auto. Assn. (1991) 2 Cal.App.4th 1197, 1203-1204;
see generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2019) ¶¶ 14:193-14:193.2.) When our division has recently taken a position on an
issue that is dividing the Courts of Appeal, I do not believe that my mere disagreement
with our division’s position is a sufficient reason.

                                             6
