People v. Tirado

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE GUADALUPE TIRADO,
Defendant and Appellant.

S257658

Fifth Appellate District
F076836

Kern County Superior Court
BF163811A

January 20, 2022

Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Kruger,
Groban, Jenkins, and Perluss* concurred.

__________________________
* Presiding Justice of the Court of Appeal, Second Appellate
District, Division Seven, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
 PEOPLE v. TIRADO
S257658

Opinion of the Court by Corrigan, J.

Penal Code section 12022.53 establishes a tiered system of
sentencing enhancements for specified felonies involving
firearms.1 Section 12022.53, subdivision (h) (section
12022.53(h)) authorizes courts to strike certain enhancements
in the interests of justice under the authority of section 1385.
Here we consider the scope of that authority when the
prosecution has alleged, and the jury has found true, the facts
supporting an enhancement under section 12022.53, subdivision
(d) (section 12022.53(d)). The question is what the court may do
if it decides to strike that enhancement. May the court impose
a lesser uncharged enhancement under either section 12022.53,
subdivision (b) (section 12022.53(b)) or section 12022.53,
subdivision (c) (section 12022.53(c))? Or is the court limited to
imposing the section 12022.53(d) enhancement or striking it?
We conclude the statutory framework permits a court to strike
the section 12022.53(d) enhancement found true by the jury and
to impose a lesser uncharged statutory enhancement instead.
I. BACKGROUND
Brian Phillips was in a Bakersfield convenience store
when defendant Jose Guadalupe Tirado and Anthony Aldaco
walked in. As Aldaco tried to steal a case of beer, Phillips

1
Further unspecified section references are to the Penal
Code.

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 PEOPLE v. TIRADO
Opinion of the Court by Corrigan, J.

intervened and the two men wrestled on the floor. During the
struggle, defendant walked behind Phillips and shot him in the
back with a semiautomatic pistol. Defendant and Aldaco ran
out with the beer, but defendant was arrested later the same
morning. Although Phillips survived the shooting, a bullet
fractured his hip. He required surgery and had to use a walker
for a month thereafter. He continued to suffer from pain and
neuropathy in his foot.
The Kern County District Attorney’s Office charged
defendant with attempted murder, second degree robbery,
participation in a criminal street gang, carrying a loaded
firearm while a participant in a criminal street gang, assault
with a semiautomatic firearm, and misdemeanor driving under
the influence of alcohol.2 Enhancements were added to the
attempted murder and robbery counts, alleging defendant
personally discharged a firearm, causing great bodily injury.
(§ 12022.53(d).)3 The counts for gang participation and carrying
a loaded gun were dismissed before trial. A jury convicted
defendant of second degree robbery, assault with a
semiautomatic firearm, and driving under the influence. It also
found true the firearm use enhancements on the robbery and
assault counts (§§ 12022.53(d), 12022.5, subd. (a)), as well as the

2
(§§ 664, 187, subd. (a), 211, 212.5, subd. (c), 186.22, subd.
(a), 25850, subd. (c)(3), 245, subd. (b); Veh. Code, § 23152, subd.
(a).)
3
The information also alleged: (1) gang participation
enhancements under section 186.22, subdivision (b)(1), as to the
counts for attempted murder, robbery, and assault; (2) a firearm
use enhancement under section 12022.5, subdivision (a), as to
the assault count; and (3) a bodily injury enhancement under
section 12022.7, subdivision (a), as to the assault count.

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Opinion of the Court by Corrigan, J.

bodily injury enhancement on the assault count (§ 12022.7,
subd. (a)).4
Before sentencing, defendant moved under section
12022.53(h) to strike the firearm use enhancement under
section 12022.53(d). He argued the interests of justice would not
be served by imposing the 25 years-to-life sentence required by
section 12022.53(d).5 He urged that, even if the court struck the
section 12022.53(d) enhancement, it could still impose a
sentence of ten years or longer based on the remaining charges
and enhancements. The court denied defendant’s motion.6
It sentenced defendant to the midterm of three years for
robbery with a 25-years-to-life enhancement under section
12022.53(d). It imposed concurrent sentences of six years for
the assault with a four-year enhancement for personal firearm

4
The jury did not reach a verdict on the attempted murder
count or on the gang enhancements under section 186.22,
subdivision (b)(1). The trial court declared a mistrial as to those
allegations.
5
In support of the motion, defendant noted that he was 22
years old with a limited criminal history. He also cited his
employment record, along with the testimony of character
witnesses, the spontaneous nature of the shooting, and the fact
that he was under the influence of alcohol when he shot the
victim in the back.
6
The court acknowledged the factors cited by the defense
and that the case was challenging because of the severity of the
penalty. However, it noted that defendant had a previous
conviction for carrying a concealed weapon; brought a firearm
with him on a “beer run,” indicating a readiness to use it; and
escalated the force he used from joining the scuffle to shooting
the victim at pointblank range. In the court’s view, the totality
of the circumstances did not call for a deviation from the
statutorily mandated penalty for this “very serious offense.”

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 PEOPLE v. TIRADO
Opinion of the Court by Corrigan, J.

use and a three-year enhancement for great bodily injury,7 as
well as 90 days for driving under the influence.
Defendant appealed, asserting the trial court abused its
discretion because it was unaware of its full set of options under
section 12022.53(h). According to defendant, the court believed
it had only two choices: (1) impose the section 12022.53(d)
enhancement; or (2) strike it. He urged the court had a third
choice: to strike the section 12022.53(d) enhancement and
impose a lesser enhancement under either section 12022.53(b)
or (c).8
The Court of Appeal affirmed, concluding that, under the
circumstances, the trial court’s power under section 12022.53(h)
was binary. It could strike the section 12022.53(d) enhancement
found true by the jury or it could impose it. It could not strike
the enhancement and substitute a different unalleged
enhancement. In the Court of Appeal’s view, the trial court
correctly understood the scope of its power and did not abuse its
discretion. The Court of Appeal noted that its decision conflicted
with People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison).
We granted review to resolve the conflict.

7
(§§ 12022.5, subd. (a), 12022.7, subd. (a).)
8
Before the Court of Appeal, the People argued defendant
had forfeited this argument by failing to specifically request the
trial court strike or reduce the enhancement imposed upon
defendant. (People v. Tirado (2019) 38 Cal.App.5th 637, 641, fn.
5 (Tirado).) The Court of Appeal did not address the forfeiture
argument, instead rejecting defendant’s claim of error on the
merits. (Ibid.)

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 PEOPLE v. TIRADO
Opinion of the Court by Corrigan, J.

II. DISCUSSION
When being sentenced, a defendant is entitled to decisions
made by a court exercising informed discretion. (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.) A court acting while
unaware of the scope of its discretion is understood to have
abused it. (People v. Carmony (2004) 33 Cal.4th 367, 378.)
Whether the trial court here abused its discretion depends on
the scope of that discretion under section 12022.53. We review
this question of statutory interpretation de novo.
Section 12022.53 was first enacted in 1997 as part of the
state’s “Use a Gun and You’re Done” law. (Stats. 1997, ch. 503,
§ 1 et seq.) The statute sets out “sentence enhancements for
personal use or discharge of a firearm in the commission” of
specified felonies.9 (People v. Palacios (2007) 41 Cal.4th 720, 725
(Palacios).) Section 12022.53, subdivision (a) lists the felonies
to which the section applies. Section 12022.53(b) mandates the
imposition of a 10-year enhancement for personal use of a
firearm in the commission of one of those felonies; section
12022.53(c) mandates the imposition of a 20-year enhancement
for personal and intentional discharge of a firearm; and section
12022.53(d) provides for a 25 years-to-life enhancement for
personal and intentional discharge of a firearm causing great
bodily injury or death to a person other than an accomplice.10
The legislative intent behind section 12022.53 is to impose

9
An enhancement is “an additional term of imprisonment
added to the base term” prescribed by statute for a given offense.
(Cal. Rules of Court, rule 4.405(3).)
10
In addition to the felonies specified in section 12022.53,
subdivision (a), section 12022.53(d) applies to the felonies
specified in section 246 and in subdivisions (c) and (d) of section
26100. (§ 12022.53(d).)

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Opinion of the Court by Corrigan, J.

“ ‘substantially longer prison sentences . . . on felons who use
firearms in the commission of their crimes.’ ” (People v. Garcia
(2002) 28 Cal.4th 1166, 1172, quoting Stats. 1997, ch. 503, § 1,
p. 3135.)
Subdivisions (f) and (j) of section 12022.53 provide further
guidance to a trial court when sentencing under the statute.
The court’s power to impose a section 12022.53 enhancement is
limited: “For the penalties in this section to apply, 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.”
(§ 12022.53, subd. (j) (section 12022.53(j)).) If a section 12022.53
enhancement is admitted or found true, the court must “impose
punishment for that enhancement pursuant to this section
rather than imposing punishment authorized under any other
provision of law, unless another enhancement provides for a
greater penalty or a longer term of imprisonment.”
(§ 12022.53(j).) The court may impose “[o]nly one additional
term of imprisonment under this section . . . per person for each
crime.” (§ 12022.53, subd. (f) (section 12022.53(f).) If “more than
one enhancement per person is found true under this section,”
the court must impose the “enhancement that provides the
longest term of imprisonment.” (Ibid.)
Before January 1, 2018, section 12022.53 prohibited
courts from striking its enhancements. Former subdivision (h)
of section 12022.53 provided: “Notwithstanding Section 1385 or
any other provision of law, the court shall not strike an
allegation under this section or a finding bringing a person
within the provisions of this section.” (Stats. 1997, ch. 503, § 3,
p. 3137.) Thus, if a section 12022.53 enhancement was alleged
and found true, its imposition was mandatory. (Palacios, supra,

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 PEOPLE v. TIRADO
Opinion of the Court by Corrigan, J.

41 Cal.4th at p. 726; see also People v. Oates (2004) 32 Cal.4th
1048, 1056.) In 2017, the Legislature enacted Senate Bill No.
620 (2017–2018 Reg. Sess.) (Senate Bill 620), amending section
12022.53(h) to remove this prohibition. (Stats. 2017, ch. 682,
§ 2.) Section 12022.53(h) now provides that a “court may, in the
interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise
required to be imposed by this section.”
Section 1385 provides that a court may, “in furtherance of
justice, order an action to be dismissed.” (Id., subd. (a).) Though
section 1385 literally authorizes the dismissal of “an action,” it
has been construed to permit the dismissal of parts of an action
(People v. Burke (1956) 47 Cal.2d 45, 51), including a weapon or
firearm use enhancement (see People v. Price (1984) 151
Cal.App.3d 803, 818−819; People v. Dorsey (1972) 28 Cal.App.3d
15, 17–18). Further, the statute’s application is broad: “Section
1385 permits dismissals in the interest of justice in any
situation where the Legislature has not clearly evidenced a
contrary intent.” (People v. Williams (1981) 30 Cal.3d 470, 482.)
There is no dispute that section 12022.53(h), as amended,
authorizes a court to strike a section 12022.53(d) enhancement
entirely and impose no additional punishment under section
12022.53. The question is whether the court can strike the
section 12022.53(d) enhancement and, in its place, impose a
lesser enhancement under section 12022.53(b) or section
12022.53(c), even if the lesser enhancements were not
specifically charged in the information or found true by the jury.
As noted, the Courts of Appeal have split on this question.
Morrison, supra, 34 Cal.App.5th 217 held that a trial court
confronting these circumstances can strike the section

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 PEOPLE v. TIRADO
Opinion of the Court by Corrigan, J.

12022.53(d) enhancement and impose one of the lesser
enhancements. The court pointed to case law recognizing that
a court “may impose a ‘lesser included’ enhancement that was
not charged in the information when a greater enhancement
found true by the trier of fact is either legally inapplicable or
unsupported by sufficient evidence.” (Morrison, at p. 222, citing
People v. Strickland (1974) 11 Cal.3d 946 (Strickland), People v.
Fialho (2014) 229 Cal.App.4th 1389 (Fialho), People v. Dixon
(2007) 153 Cal.App.4th 985 (Dixon), People v. Lucas (1997) 55
Cal.App.4th 721 (Lucas), People v. Allen (1985) 165 Cal.App.3d
616 (Allen).) Extending the principle of those authorities, the
Morrison court “[saw] no reason” why a court could not strike an
adjudicated section 12022.53(d) enhancement and impose an
unadjudicated enhancement under section 12022.53(b) or (c).
(Morrison, at p. 222.)
The Court of Appeal below disagreed with Morrison. It
reasoned that the plain language of section 12022.53(h) did not
authorize a court “to substitute one enhancement for another.”
(Tirado, supra, 38 Cal.App.5th at p. 643.) Rather, section
12022.53(h) authorizes a “binary” choice: either strike the
enhancement or impose it. (Tirado, at p. 643; see also, ibid.
[“nothing in [the statute] conveys the power to change, modify,
or substitute a charge or enhancement”].) The court opined that,
if the prosecution had alleged all three enhancements — i.e., the
enhancements under section 12022.53(b), (c) and (d) — and the
jury had found all three to be true, then the court “would have
had the discretion to strike the [section 12022.53(d)]
enhancement and . . . either impose one of the other two
enhancements or strike them as well.” (Tirado, at p. 644; see
also People v. Wang (2020) 46 Cal.App.5th 1055, 1090−1091.)
However, “because the People exercised their charging

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 PEOPLE v. TIRADO
Opinion of the Court by Corrigan, J.

discretion to allege only one enhancement, the trial court was
limited to either imposing or striking that enhancement.”
(Tirado, at p. 644.) The court distinguished the case law relied
upon by the Morrison court, reasoning that “the enhancement
at issue here was neither unsupported by the law nor
unsupported by the evidence.” (Ibid.)
Morrison correctly described the scope of a trial court’s
sentencing discretion under section 12022.53. Although the
prosecution did not specifically allege enhancements under
section 12022.53(b) or (c), the trial court could impose those
enhancements even when the section 12022.53(d) enhancement
was not legally or factually inapplicable. Neither case law nor
the language of section 12022.53 compels a contrary conclusion.
At the outset, it is worth noting that a court is not
categorically prohibited from imposing a lesser included,
uncharged enhancement so long as the prosecution has charged
the greater enhancement and the facts supporting imposition of
the lesser enhancement have been alleged and found true. The
case law cited by Morrison and the Court of Appeal below makes
this clear. For example, Strickland, supra, 11 Cal.3d 946 held
that an uncharged enhancement may be imposed when a
charged and adjudicated enhancement is inapplicable to the
offense for which the defendant is ultimately convicted.
(Strickland, at p. 961.) There, the defendant was charged with
murder but convicted of voluntary manslaughter. At
sentencing, the trial court imposed a firearm use enhancement
under section 12022.5. This court held the imposition of that
enhancement was erroneous because section 12022.5 did not
apply to voluntary manslaughter. (Strickland, at pp. 959−960.)
However, we held the defendant was subject to a separate
firearm use enhancement under section 12022. (Strickland, at

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Opinion of the Court by Corrigan, J.

p. 961.) We reasoned that section 12022 “ ‘would be applicable
in any case in which [section] 12022.5 applies’ ”; that section
12022.5 “ ‘is a limited application of section 12022 with a heavier
penalty’ ”; and that, because the jury found that the defendant
came within the provisions of section 12022.5, it had manifestly
found all the facts necessary for application of section 12022.
(Strickland, at p. 961.)
Fialho, supra, 229 Cal.App.4th 1389 reached a similar
conclusion. There, the defendant was charged with murder and
convicted of voluntary manslaughter. The jury also found true
an enhancement under section 12022.53(d). The trial court
imposed a different firearm use enhancement under 12022.5,
subdivision (a), because section 12022.53 does not apply to
voluntary manslaughter. (Fialho, at pp. 1391−1392.) On
appeal, the defendant urged that the section 12022.5,
subdivision (a) enhancement should be stricken because it had
not been alleged in the information or found true by the jury.
(Fialho, at p. 1392.) Relying on Strickland, the Court of Appeal
rejected the argument, concluding that “when an enhancement
is alleged in the information, the defendant is put on notice ‘that
his [or her] conduct [could] also be in violation of’ an uncharged
enhancement that ‘would be applicable in any case’ in which the
charged enhancement applies, and imposition of the uncharged
enhancement is permitted.” (Fialho, at p. 1397.) Because the
defendant had conceded there was sufficient evidence to support
the imposition of a section 12022.5, subdivision (a)
enhancement, had it been alleged, the Court of Appeal
concluded the enhancement was properly imposed. (Fialho, at
pp. 1395, 1398.) It would elevate form over substance, the court
reasoned, to require “a specific lesser included enhancement
code section [to] be pleaded before [the] lesser included

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 PEOPLE v. TIRADO
Opinion of the Court by Corrigan, J.

enhancement can be imposed.” (Id. at p. 1398.) The authority
of a trial court to impose an uncharged enhancement, in
appropriate circumstances, has also been upheld against similar
challenges by defendants when the evidence was insufficient to
support the adjudicated enhancement. (See Dixon, supra, 153
Cal.App.4th at pp. 1001−1002; Lucas, supra, 55 Cal.App.4th at
p. 743; see also Allen, supra, 165 Cal.App.3d at p. 627.)
The question of a court’s authority to impose an uncharged
enhancement often arises in the context of a due process
challenge. (See Dixon, supra, 153 Cal.App.4th at pp.
1001−1002; Lucas, supra, 55 Cal.App.4th at p. 743.) “A
defendant has the ‘right to fair notice of the specific sentence
enhancement allegations that will be invoked to increase
punishment for his crimes.’ ” (People v. Anderson (2020) 9
Cal.5th 946, 953, quoting People v. Mancebo (2002) 27 Cal.4th
735, 747.) But unless the Legislature requires otherwise, the
“accusatory pleading need not specify by number the statute
under which the accused is being charged.” (People v. Thomas
(1987) 43 Cal.3d 818, 826.) Where a lesser offense is
encompassed within a greater one, the factual allegations made
in charging the greater offense are sufficient to give notice of the
lesser. By charging the greater offense, the prosecution
demonstrates an “intent to prove all the elements of any lesser
necessarily included offense. Hence, the stated charge notifies
the defendant, for due process purposes, that he must also be
prepared to defend against any lesser offense necessarily
included therein, even if the lesser offense is not expressly set
forth in the indictment or information.” (People v. Birks (1998)
19 Cal.4th 108, 118 (Birks).) Thus, when a greater offense or an
enhancement is dismissed after having been found true, the

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Opinion of the Court by Corrigan, J.

lesser offense has nevertheless been charged and found true and
may therefore be properly applied to the defendant.
The Court of Appeal below distinguished the cases
Morrison relied on, reasoning that here the enhancement “was
neither unsupported by the law nor unsupported by the
evidence.” (Tirado, supra, 38 Cal.App.5th at p. 644.) Based on
that distinction, the Court of Appeal held that the trial court
could not impose an enhancement under section 12022.53(b) or
(c) because the prosecution had not specifically alleged the lesser
enhancements. (Tirado, at p. 644.) That is, the Court of Appeal
regarded the above-mentioned cases as prescribing the only
circumstances in which a trial court can impose an uncharged
enhancement. But nothing in Strickland or the other cases
mentioned suggests that a trial court’s power to impose an
uncharged enhancement is conditioned on the charged and
adjudicated enhancement being inapplicable. Under those
cases, imposition of an uncharged enhancement is permitted so
long as the facts supporting its imposition are alleged and found
true.11 (Fiahlo, supra, 229 Cal.App.4th at p. 1397; see also
Strickland, supra, 11 Cal.3d at p. 961.)
Thus far, we have concluded that courts are not
categorically prohibited from imposing uncharged
enhancements and that the power to do so is not conditioned on
the charged and adjudicated enhancement being legally or

11
The People argue that the “statutory source for a court’s
authority to substitute and impose a lesser uncharged
enhancement is found” in section 1181, subdivision 6, “which
expressly permits such an action only ‘[w]hen the verdict or
finding is contrary to law or evidence,’ ” and section 1260, “which
expressly allows a court to modify a judgment.” However,
neither Strickland nor Fialho relied on or cited either provision.

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factually inapplicable. The next question is whether section
12022.53 bars a trial court from imposing an enhancement
under section 12022.53(b) or (c) when those enhancements are
not specifically listed in the accusatory pleading, but the facts
giving rise to the enhancement are alleged and found true. The
Legislature could draft a statute that restricts a court’s
discretion in this manner. (People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 516 (Romero).) Read as a whole, however,
the current language of section 12022.53 does not contain such
a limitation.
The Court of Appeal reasoned that “[n]othing in the plain
language of [section 12022.53(h)] authorizes a trial court to
substitute one enhancement for another.” (Tirado, supra, 38
Cal.App.5th at p. 643.) It can dismiss an enhancement or
impose it, but cannot “change, modify, or substitute” an
enhancement. (Ibid.) The People make a similar argument.
According to the People, section 12022.53(h) does not allow a
court to modify an enhancement by effectively deleting an
element of an enhancement that has been found true.
These arguments are correct as far as they go. Section
12022.53(h) does not authorize the imposition of any of section
12022.53’s enhancements; it only authorizes a trial court to
“strike or dismiss an enhancement otherwise required to be
imposed by this section.” (§ 12022.53(h).) Section 12022.53(j) is
the subdivision that authorizes the imposition of enhancements
under section 12022.53. It provides that for the penalties in
section 12022.53 to apply, the existence of any fact required by
section 12022.53(b), (c), or (d) must be alleged in the accusatory
pleading and admitted or found true. Therefore, the question is
not whether section 12022.53(h) authorizes the court to change,
modify, or substitute an enhancement. Rather, it is whether

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section 12022.53(j) authorizes the court to impose an
enhancement under section 12022.53(b) or (c) after striking a
section 12022.53(d) enhancement. To answer that question, we
must determine whether the existence of facts required by
section 12022.53(b) and (c) were alleged and found true.
Those requirements were met here. In connection with
the robbery count, the information alleged that defendant “did
personally and intentionally discharge a firearm which
proximately caused great bodily injury or death to another
person, not an accomplice . . . within the meaning of Penal Code
section 12022.53(d).” This charging language referred to facts
necessary to prove allegations under section 12022.53(b) and (c)
as well. Firing a gun as alleged would meet the use requirement
of section 12022.53(b) and the discharge element of section
12022.53(c). Likewise, the jury’s findings established that these
same facts were proven true.
To summarize: When an accusatory pleading alleges and
the jury finds true the facts supporting a section 12022.53(d)
enhancement, and the court determines that the section
12022.53(d) enhancement should be struck or dismissed under
section 12022.53(h), the court may, under section 12022.53(j),

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impose an enhancement under section 12022.53(b) or (c).12 The
plain statutory language supports this conclusion.13

12
It should be noted, however, that this general rule only
applies when a true finding under section 12022.53(d)
necessarily includes a true finding under section 12022.53(b) or
(c). That would not be the case if a section 12022.53(d)
enhancement were added to a charge under section 246
[shooting at an inhabited dwelling house] or under subdivisions
(c) or (d) of section 26100 [shooting from a motor vehicle]. Those
offenses are not “specified in subdivision (a),” as required for
imposition of an enhancement under section 12022.53(b) or (c).
(§ 12022.53(b), (c).)
13
At oral argument, the People placed great weight on the
1927 case of People v. Superior Court (Prudencio) (1927) 202 Cal.
165. Their reliance is misplaced. In Prudencio, the defendant
was charged with first degree murder. The jury found the
defendant guilty of that offense and fixed the punishment at
death. (Prudencio, at p. 167.) The defendant moved for a new
trial. The trial court denied the motion but found the evidence
was insufficient to sustain the jury’s verdict and, instead, found
the defendant guilty of second degree murder. (Id. at pp.
168−169.) This court held the trial court’s action was
unauthorized because section 190 gave the jury sole discretion
to determine the degree of and punishment for murder.
(Prudencio, at p. 170.) Thus, the trial court’s options were to
grant a new trial or to “pronounce judgment upon the verdict as
rendered.” (Prudencio, at pp. 169−170.) Unlike Prudencio, this
is not a murder case, and section 12022.53 does not limit a trial
court to imposing the enhancement found true by the jury.
Amended section 12022.53(h) allows a court to strike a jury’s
true finding under section 12022.53(d), and section 12022.53(j)
allows a court to impose a lesser enhancement so long as the
facts required by the relevant subdivision were alleged and
found true. There are other points of distinction as well. When
Prudencio was tried, the court had no power to alter a jury
verdict under section 1181. Its sole authority under that
provision was to grant a new trial. Section 1181 was only

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This understanding is also consistent with the legislative
history of Senate Bill 620. As mentioned, the Legislature’s goal
in enacting section 12022.53 was to protect Californians and
deter violent crime by imposing “substantially longer prison
sentences . . . on felons who use firearms in the commission of
their crimes.” (Stats. 1997, ch. 503, § 1, p. 3135.) The
Legislature created an escalating set of enhancements, based on
the defendant’s conduct and the harm caused. (§ 12022.53(b),
(c), (d).) It ensured that the harshest applicable punishment
would be imposed in each case. (§ 12022.53(f), (j).) Former
subdivision (h) of section 12022.53 reinforced those objectives by
prohibiting courts from striking allegations or findings bringing
a person within the statute’s coverage. (Stats. 1997, ch. 503, § 3,
p. 3137.) However, as Senate Bill 620’s legislative history
shows, the enhancement scheme “caus[ed] several problems.”
(Sen. Com. on Public Safety, Analysis of Sen. Bill No. 620 (2017–
2018 Reg. Sess.) as amended Mar. 28, 2017, p. 3.) An analysis
prepared for the Senate Committee on Public Safety before the
bill’s passage noted that the sentencing enhancements had
“[g]reatly increase[d] the population of incarcerated persons.”
(Ibid.) The percentage of the state’s budget devoted to
corrections rose from 4 percent of General Fund expenses in the
early 1980s to 9 percent in 2014. (Ibid.) The analysis stated
that Senate Bill 620 would provide courts with discretion to
strike a firearm enhancement, thereby providing relief “to a

subsequently amended to permit modification under some
circumstances. (See People v. Tubby (1949) 34 Cal.2d 72, 76.)
Finally, our resolution here turns on the application of section
12022.53, a provision added to the Penal Code 70 years after
Prudencio was decided. For all these reasons, the People’s
repeated reliance on Prudencio is unavailing.

16
 PEOPLE v. TIRADO
Opinion of the Court by Corrigan, J.

deserving defendant, while a defendant who merited additional
punishment” would still receive it. (Sen. Com. on Public Safety,
Analysis of Sen. Bill No. 620 (2017–2018 Reg. Sess.) as amended
Mar. 28, 2017, p. 7.) The argument in support echoed this
description, stating the bill would allow judges “to impose
sentences that fit the severity of the offense.” (Id. at p. 8.) This
history reflects a legislative intent to retain the core
characteristics of the sentencing scheme. More severe terms of
imprisonment with the harshest applicable sentence remained
the default punishment. However, courts were granted the
flexibility to impose lighter sentences in appropriate
circumstances.
The People argue it would violate separation of powers
principles to allow a court to impose a section 12022.53(b) or (c)
penalty when only a section 12022.53(d) enhancement is
charged and found true. If the People’s position is correct, a
court could not impose an uncharged lesser enhancement even
when the adjudicated enhancement is inapplicable or
unsupportable. Yet, that authority has been repeatedly
endorsed. (See Strickland, supra, 11 Cal.3d 946; Fialho, supra,
229 Cal.App.4th 1389.) To be sure, it is the prosecution that
determines what charges should be brought and against whom.
(Birks, supra, 19 Cal.4th at pp. 134−135.) That authority
includes the power to charge specific enhancements and seek
the maximum available term (People v. Bizieff (1990) 226
Cal.App.3d 130, 138) free from judicial supervision or
interference. However, once those decisions have been made
and the proceedings have begun, “the process which leads to
acquittal or to sentencing is fundamentally judicial in nature.”
(People v. Tenorio (1970) 3 Cal.3d 89, 94.) The prosecution
cannot control the court’s authority to select from the

17
 PEOPLE v. TIRADO
Opinion of the Court by Corrigan, J.

legislatively authorized sentencing options. (See Romero, supra,
13 Cal.4th at p. 516.) Here, the Legislature has permitted courts
to impose the penalties under section 12022.53(b), (c), or (d) so
long as the existence of facts required by the relevant
subdivision has been alleged and found true.
III. DISPOSITION
The Court of Appeal’s judgment is reversed. The matter
is remanded for the Court of Appeal to address the People’s
unresolved forfeiture argument (see ante, p. 4, fn. 8) and for any
further proceedings not inconsistent with this opinion.

CORRIGAN, J.

We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
PERLUSS, J.*

__________________________
* Presiding Justice of the Court of Appeal, Second Appellate
District, Division Seven, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

18
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Tirado
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 38 Cal.App.5th 637
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________

Opinion No. S257658
Date Filed: January 20, 2022
__________________________________________________________

Court: Superior
County: Kern
Judge: John D. Oglesby
__________________________________________________________

Counsel:

Theresa Schriever, under appointment by the Supreme Court, and
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler
and Lance E. Winters, Chief Assistant Attorneys General, Michael P.
Farrell, Assistant Attorney General, Julie A. Hokans, F. Matt Chen,
Catherine Chatman and Dina Petrushenko, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Theresa Schriever
Central California Appellate Program
2150 River Plaza Drive, #300
Sacramento, CA 95833
(916) 441-3792

Dina Petrushenko
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-6048