People v. Surratt CA4/2

Filed 11/3/26 P. v. Surratt CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E088043 v. (Super.Ct.No. FVI1500058) STRADER ALLEN SURRATT, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. Kathleen Curtis, Judge. Reversed. Lynelle K. Hee, under appointment by the Court of Appeal for Defendant and Appellant. 1  Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Alan L. Amann, Deputy Attorney General, for Plaintiff and Respondent. Defendant and appellant Strader Allen Surratt appeals from the trial court’s resentencing orders made pursuant to Penal Code1 section 1172.1. The People concede that the matter should be remanded for resentencing because the trial court erroneously believed it did not have the discretion to impose a lesser included firearm enhancement while resentencing defendant. We agree that the trial court erred in believing that it only had the binary choice of striking or not striking the enhancement, and reverse. FACTUAL AND PROCEDURAL HISTORY On October 5, 2017, defendant pled no contest to two counts of assault on a peace officer (§ 245, subd. (d)(1)) and admitted to one allegation of personally discharging a firearm (§ 12022.53, subd. (c)). The court sentenced him to the upper term of eight years on the first of the assault counts, two years consecutive on the second assault count (one- third of the middle term), and 20 years consecutive for the firearm enhancement for a total determinate sentence of 30 years in state prison. On May 1, 2024, defendant filed a request for recall and resentencing pursuant to section 1172.1. On August 14, 2025, defendant submitted to the trial court his resentencing brief. Attached to the brief was a social history/mitigation report detailing the childhood trauma, substance abuse issues, and mental health issues suffered by 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 defendant, laudatory chronos2 from the prison, documentation reflecting defendant’s participation in mental health treatment, substance abuse treatment, and educational programs, and reentry plan information. On March 12, 2026, pursuant to section 1172.1, on its own motion the trial court recalled defendant’s sentence and resentenced him to the low term of four years on the first of the assault counts, two years on the second assault count (one-third of the middle term), and 20 years for the firearm enhancement for a total determinate sentence of 26 years. With respect to the 20-year firearm enhancement, the trial court expressly stated that it did not believe it could impose a lesser included “offense” pursuant to section 1172.1, subdivision (a)(4), because defendant’s conviction was the result of a plea bargain and the People were not consenting to any modification of the firearm allegation. The court stated it accordingly believed it had an “all or nothing situation” where it could either impose the enhancement or strike it completely, and that striking the enhancement entirely would endanger public safety. Defendant timely appealed. DISCUSSION “When being sentenced, a defendant is entitled to decisions made by a court exercising informed discretion. [Citation.] A court acting while unaware of the scope of its discretion is understood to have abused it.” (People v. Tirado (2022) 12 Cal.5th 688, 2 “A ‘chrono’ is an institutional documentation of information about inmates and inmate behavior.” (In re Shelton (2020) 53 Cal.App.5th 650, 658, fn. 6.) 3 694 (Tirado).) The question of whether the trial court here abused its discretion depends on the scope of its statutory discretion under section 1172.1, and we review questions of statutory interpretation de novo. (Tirado, at p. 694.) Section 1172.1, subdivision (a)(1), in relevant part provides: “When a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the Department of Corrections and Rehabilitation … the court may, on its own motion … at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law … recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.” There is no dispute that the sentencing laws were changed subsequent to defendant’s original sentencing in 2017 thereby authorizing relief pursuant to section 1172.1. Specifically, with respect to the firearm enhancement component of defendant’s sentence, “[b]efore January 1, 2018, section 12022.53 prohibited courts from striking its enhancements. 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.’ ” (Tirado, supra, 12 Cal.5th at pp. 695-696.) The amended subdivision expressly applies “to any resentencing that may occur pursuant to any other law.” (§ 12022.53, subd. (h).) In Tirado, our Supreme Court determined that the amendments to section 12022.53 permitted trial courts to not only strike an enhancement in its entirety, but also 4 impose a lesser uncharged statutory enhancement in place of the stricken enhancement. (Tirado, supra, 12 Cal.5th at p. 692.) A jury found true the Tirado defendant’s firearm enhancement set forth in section 12022.53, subdivision (d), which added 25 years-to-life to the sentence. (Tirado, at p. 693.) The defendant filed a motion prior to sentencing in which he requested that the trial court strike the subdivision (d) enhancement and impose one of the other, lesser enhancements in the statute.3 (Ibid.) The trial court denied the motion, and the Court of Appeal affirmed, “concluding that, under the circumstances, the trial court’s power under section 12022.53(h) was binary.” (Id. at p. 694.) In reversing the appellate court, the Tirado court highlighted section 12022.53, subdivision (j), which provides: “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.” (Tirado, supra, 12 Cal.5th at pp. 700.) The court reasoned that it is this subdivision that authorizes the imposition of enhancements under section 12022.53, and that for the Tirado defendant the charging language regarding subdivision (d) also included the facts necessary to prove subdivisions (b) or (c) allegations. (Tirado, at p. 700.) Therefore, the “plain statutory language” as well as the legislative history of section 12022.53 supported the conclusion that “[w]hen an accusatory pleading alleges 3 Subdivision (b) of section 12022.53 imposes a 10-year enhancement for the personal use of a firearm, subdivision (c) imposes a 20-year enhancement for the personal and intentional discharge of a firearm, and subdivision (d) imposes a 25-years-to-life enhancement for a personal and intentional discharge of a firearm causing great bodily injury or death. 5 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), impose an enhancement under section 12022.53(b) or (c).” (Tirado, at pp. 700-701.) Thus, Tirado was an affirmance of “the general rule that when an adjudicated enhancement has been dismissed, ‘imposition of an uncharged enhancement is permitted so long as the facts supporting its imposition are alleged and found true.’ ” (People v. McDavid (2024) 15 Cal.5th 1015, 1025.) In McDavid, a jury found true allegations that the two defendants had intentionally and personally discharged a firearm leading to great bodily injury, resulting in a 25-years-to-life sentence enhancement pursuant to section 12022.53, subdivision (d). (McDavid, at p. 1021.) The Court of Appeal, on rehearing, held that the trial court’s discretion to impose lesser included, uncharged enhancements was confined to the enhancements set forth in section 12022.53. (McDavid, at p. 1022.) The Supreme Court disagreed and held that not only did a trial court have discretion to impose one of the lesser included, uncharged enhancements set forth in section 12022.53 in the interest of justice as provided in Tirado, but the trial court may also impose a lesser included, uncharged enhancement found elsewhere in the Penal Code. (McDavid, at pp. 1020-1021.) Thus, Tirado and McDavid provide a broad ability to the trial court to strike an enhancement under section 12022.53 and impose a lesser included enhancement. The 2018 update to section 12022.53 and the clarifications provided by the Supreme Court in Tirado and McDavid must be applied in defendant’s resentencing pursuant to section 6 1172.1, subdivision (a)(2), which provides that the court shall “apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” What led the trial court here to believe that Tirado and McDavid were distinguishable was that both cases involved sentences arising from jury trials, whereas defendant’s conviction and original sentence arose from a plea agreement. The trial court stated that it believed it was constrained by section 1172.1, subdivision (a)(4), which provides: “If the court has recalled the sentence on its own motion, the court shall not impose a judgment on any necessarily included lesser offense or lesser related offense if the conviction was a result of a plea bargain without the concurrence of both the defendant and the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.” Defendant argues, the People concede, and we agree that subdivision (a)(4) of section 1172.1 does not apply here. The subdivision’s restriction applies only to lesser included offenses resulting from a plea bargain. Section 12022.53 provides for a sentence enhancement, not an offense. As our high court provided, “in our statutory scheme sentence enhancements are not ‘equivalent’ to, nor do they ‘function’ as, substantive offenses…. The Legislature, moreover, has in various ways expressed its intention that enhancements not be treated as substantive offenses.” (People v. Wims (1995) 10 Cal.4th 293, 307, fn. omitted, limited on other grounds in People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) 7  Where the statutory language has unambiguously stated that it applies to lesser included offenses, rather than lesser included enhancements, and “[i]n the absence of compelling countervailing considerations, we must assume that the Legislature ‘knew what it was saying and meant what it said.’ ” (Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764.) There is no language elsewhere in section 1172.1 suggesting an intent by the Legislature to restrict the trial court’s ability to impose a lesser included enhancement resulting from a plea agreement. To the contrary, section 1172.1, subdivision (a)(3), provides in relevant part that “[t]he resentencing court may, in the interest of justice and regardless of whether the original sentence was imposed after a trial or plea agreement, do the following: [¶] (A) Reduce a defendant’s term of imprisonment by modifying the sentence.” (Italics added.) This subdivision unambiguously reflects a legislative intent in section 1172.1 to grant trial courts the broad ability to unilaterally modify existing plea agreements. (See Harris v. Superior Court (2016) 1 Cal.5th 984, 991 [statute passed by voter initiative reflected a clear intent to apply the change in the law to plea agreements, as subdivision states that it governs a person “ ‘serving a sentence for a conviction, whether by trial or plea’ ”].) Further, because subdivision (a)(4) of section 1172.1 provides an express and specific limitation on the trial court’s ability to resentence a defendant whose conviction was the result of a plea bargain, we may not read into the statute a further or alternative limitation. “Expressio unius est exclusio alterius. The expression of some things in a statute necessarily means the exclusion of other things not expressed.” (Gikas v. Zolin 8 (1993) 6 Cal.4th 841, 852.) The expression of a limitation on the trial court when imposing a lesser included offense necessarily excludes other types of limitations that were not expressed. We accordingly hold that the trial court has the discretion to strike the section 12022.53 enhancement and may also impose a lesser included enhancement within section 12022.53 or elsewhere in the Penal Code as provided by Tirado and McDavid. The trial court here necessarily abused its discretion as it acted while unaware of the scope of its discretion, and thus reversal is necessary. (Tirado, supra, 12 Cal.5th at p. 694.) On remand, we express no opinion as to whether the trial court should strike defendant’s section 12022.53 enhancement or impose a lesser, uncharged enhancement. DISPOSITION The trial court’s orders made pursuant to section 1172.1 are reversed and remanded for a new resentencing hearing consistent with this opinion. NOT TO BE PUBLISHED IN OFFICIAL REPORTS. MILLER J. We concur: RAMIREZ P. J. LEE J. 9