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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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.
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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.)
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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
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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.
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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
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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.)
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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
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(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.
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