In People v. Tirado, the Supreme Court today holds a statute gives superior courts the choice not only to strike or not strike a sentencing enhancement, but also to impose a lesser enhancement in a stricken one’s place, even if the prosecution never charged the lesser enhancement.

The court’s unanimous opinion by Justice Carol Corrigan concludes that, in enacting a 2017 bill to allow courts to “strike or dismiss” firearms enhancements, the Legislature intended “to retain the core characteristics” of an earlier harsh sentencing scheme, but also to grant courts “the flexibility to impose lighter sentences in appropriate circumstances.” And that flexibility applies regardless whether a lighter enhancement has been charged because, the court says, “The prosecution cannot control the court’s authority to select from the legislatively authorized sentencing options.”

Resolving a conflict in the case law, the court reverses the Fifth District Court of Appeal, which held in a published opinion that a sentencing court “can choose to dismiss a charge or enhancement in the interest of justice, or it can choose to take no action,” but it cannot “change, modify, or substitute a charge or enhancement.” The Fifth District disagreed with a 2019 decision of the First District, Division Five, of which the Supreme Court approves.