Justices mull whether judges can substitute unproven lesser enhancements

Does a trial court have the power to substitute an unpleaded, unproven lesser firearm enhancement when deciding to exercise its power to strike or dismiss the enhancement under the Penal Code during sentencing?

The California Supreme Court, with 2nd District Court of Appeal Justice Dennis M. Perluss sitting by designation, heard arguments on that question Wednesday, reviewing a decision by the 5th District Court of Appeal. The appellate court ruled that although the trial court has the discretion to strike or dismiss an enhancement it does not have the discretion to substitute one enhancement with another, lesser enhancement that has not been charged or gone before a jury. People v. Jose Guadalupe Tirado, S257658.

Perluss was assigned to the case as justice pro tempore following the retirement of Justice Mariano-Florentino Cuéllar.

The arguments by Deputy Attorney General Dina Petrushenko on behalf of the state and Theresa H. Schriever of the Central California Appellate Program in Sacramento on behalf of Jose Tirado focused on the Legislature's intent when passing SB 620 in 2018. The bill amended the law on firearm enhancements to allow a court to dismiss or strike a firearm enhancement if it is in the interest of justice.

Petrushenko argued there is no ambiguity in the way the laws were written, making the Legislature's intent clear that trial courts have the right to either hold or dismiss a firearm enhancement.

Schriever argued trial courts have more than two options when assessing whether or not to dismiss a firearm enhancement at the time of sentencing, including the ability to dismiss a part of an enhancement if it is in the interest of justice and switch the enhancement to a lesser one.

According to Schriever, lesser firearm enhancements are implicitly charged when the most severe of firearm enhancements is charged. She said allowing the trial court to change the firearm enhancement to a lesser one aligns with the Legislature's intent in passing SB 620 -- to allow trial judges discretion in making sentences shorter when appropriate to ensure the punishment fits the offense.

The few questions the high court had on Wednesday were all for Petrushenko.

"What is wrong with that theory, giving the court its discretion, allowing it options, but not cabining that discretion," Chief Justice Tani G. Cantil-Sakauye asked. She added that although the firearm enhancement provision's language is clear, it does not prohibit the court from choosing a lesser enhancement.

Petrushenko responded, "The language that they used is the best evidence of their intent. If they had intended to allow the court even greater power they could have done so."

Tirado was convicted by a Kern County jury of second-degree robbery, driving under the influence of alcohol and assault with a semi-automatic firearm during a 2016 robbery of a convenience store.

Tirado and an accomplice had attempted to leave the store without paying for a case of beer when a customer attempted to stop them. An altercation ensued and Tirado shot the customer in the lower back.

The appeal seeks to have the case remanded to Kern County so the court can exercise its discretion to determine whether the punishment under Firearm Enhancement Subdivision D, which imposes a consecutive sentence of 25 years to life on Tirado for the discharge of a firearm that causes death or great bodily injury to another, should be stricken and a lesser punishment imposed such as Subdivision C. That section imposes a sentence of 20 years for personal and intentional discharge of a firearm.

Terado's counsel argued the case should be remanded because the trial court was unaware of its discretion to impose a lesser firearm enhancement if it is in the interest of justice.

Enhancements have been a point of contention among California's prosecutors, particularly in Los Angeles County, where prosecutors are suing District Attorney George Gascón over his directives on enhancements.

The case is pending appeal after a Los Angeles County Superior Court judge ruled the DA could not implement a blanket policy preventing prosecutors from seeking enhancements and that prosecutors are not prevented from seeking increased prison sentences under the three-strikes law unless they have legal ground to argue dismissing or withdrawing charges in the interest of justice. Association of Deputy District Attorneys v. George Gascón, 20STCP04250 (L.A. Super. Ct., filed Dec. 20, 2020).