People v. Garcia CA2/2

Filed 5/20/22 P. v. Garcia CA2/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B293491

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA095648) v. OPINION ON REMAND GREGORY STEVEN GARCIA,

Defendant and Appellant.

APPEAL from a judgment of the Los Angeles Superior Court, Yvette Verastegui, Judge. Affirmed in part, reversed in part, and remanded with directions.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, William H. Shin, Noah P. Hill, and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent. ****** Gregory Steven Garcia (defendant) was convicted of second degree murder. The trial court sentenced defendant to 40 years to life. As part of that sentence, the court imposed a term of 25 years to life for personally and intentionally discharging a firearm and proximately causing death pursuant to Penal Code section 12022.53, subdivision (d).1 Defendant appealed, arguing that the court should have exercised its newly conferred authority—under section 12022.53, subdivision (h)—to “strike or dismiss an enhancement” under section 12022.53 to substitute a 10-year or 20-year enhancement under subdivisions (b) or (c) of section 12022.53. We rejected this argument in a published opinion, reasoning that the lesser enhancements had not been presented to, or found to be true by, the jury. (People v. Garcia (2020) 46 Cal.App.5th 786.) The California Supreme Court granted review in June 2020; handed down People v. Tirado (2022) 12 Cal.5th 688 (Tirado), which held that trial courts do have the discretion to dismiss a greater enhancement for an uncharged lesser enhancement under section 12022.53; and remanded this case back to us for reconsideration in light of Tirado.