Background
Strader Allen Surratt pleaded no contest on October 5, 2017, to two counts of assault on a peace officer and admitted personally discharging a firearm under Penal Code section 12022.53, subdivision (c). The San Bernardino County Superior Court imposed an eight-year upper term on the first assault count, a consecutive two-year term on the second, and a consecutive 20-year firearm enhancement, producing a total determinate sentence of 30 years. Surratt requested recall and resentencing under section 1172.1 on May 1, 2024. His August 14, 2025 resentencing brief included a social history and mitigation report, favorable prison records, treatment and educational documentation, and reentry information.
Acting on its own motion on March 12, 2026, the trial court recalled the sentence and reduced the first assault term to four years while retaining two years on the second count and the 20-year enhancement. The new total was 26 years. The court explained that, because the conviction resulted from a plea bargain and the prosecution did not consent to modification of the firearm allegation, it believed section 1172.1, subdivision (a)(4), prevented imposition of a lesser included enhancement. It therefore viewed the choice as an “all or nothing situation” and declined to strike the enhancement entirely because it believed doing so would endanger public safety. Surratt appealed, and the People conceded that remand was necessary.
The Court’s Holding
The Fourth Appellate District, Division Two, agreed that the trial court had misunderstood its authority. Reviewing the statutory question de novo, the court explained that a defendant is entitled to sentencing decisions made through informed discretion and that a court unaware of the scope of its discretion abuses it. Later changes to section 12022.53 authorized courts to strike firearm enhancements in the interest of justice, including at resentencing. Under People v. Tirado, a court striking a subdivision (d) enhancement could impose a lesser enhancement under subdivision (b) or (c) when the necessary facts had been alleged and established. People v. McDavid further recognized authority to impose a lesser included, uncharged enhancement found elsewhere in the Penal Code.
The plea-bargain restriction in section 1172.1, subdivision (a)(4), did not change that authority. By its terms, that restriction concerns judgments on necessarily included lesser offenses or lesser related offenses, whereas section 12022.53 supplies a sentence enhancement, not a substantive offense. The appellate court also relied on subdivision (a)(3), which permits a resentencing court to reduce a prison term regardless of whether the original sentence followed a trial or plea agreement. Reading subdivision (a)(4) to impose an additional, unstated restriction on enhancements would contradict its express and specific limitation concerning offenses.
The court consequently held that the trial court could strike the section 12022.53 enhancement and impose a lesser included enhancement either within that statute or elsewhere in the Penal Code, as authorized by Tirado and McDavid. Because the trial court acted without awareness of that discretion, reversal was required. The opinion expressed no view on whether the enhancement ultimately should be struck or replaced. It reversed the section 1172.1 orders and remanded for a new resentencing hearing consistent with its analysis.
Key Takeaways
- A section 1172.1 resentencing court may consider lesser included firearm enhancements rather than treating retention and complete striking as its only options.
- The plea-bargain consent restriction in subdivision (a)(4) concerns lesser offenses and does not itself restrict substitution of a lesser sentence enhancement.
- Subdivision (a)(3) expressly permits sentence modification whether the original conviction followed a trial or a plea agreement.
- The appellate court reversed because the trial court misunderstood its discretion, not because it decided that Surratt necessarily deserved a shorter enhancement.
- On remand, the trial court retains the decision whether to strike the enhancement or impose a lesser uncharged enhancement consistent with Tirado and McDavid.
Why It Matters
The decision applies the California Supreme Court’s firearm-enhancement rulings to a resentencing following a negotiated plea and separates enhancements from the lesser offenses expressly covered by section 1172.1, subdivision (a)(4). It also explains why the statute’s express authority to modify sentences after plea agreements forecloses implying an additional enhancement-specific consent requirement.
The immediate result is procedural rather than a predetermined sentence reduction: Surratt receives a new hearing at which the trial court must exercise its discretion with a correct understanding of the available choices. The opinion leaves both the ultimate treatment of the firearm enhancement and the resulting sentence open on remand.