Filed 4/9/18 P. v. Cortez CA2/8
Opinion on remand 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT


THE PEOPLE,

Plaintiff and Respondent,

v.

NORMA LILIAN CORTEZ,

Defendant and Appellant.
B280911

(Los Angeles County
Super. Ct. No. BA345971)

APPEAL from an order of the Superior Court of Los Angeles County, Dennis Landin, Judge. Affirmed and remanded.

Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * * * * *

Defendant Norma Lilian Cortez was convicted by jury of premeditated murder and premeditated attempted murder, and gang and firearm enhancements were found to be true. Following remand of this case from the California Supreme Court and our court, defendant appealed the denial of her new trial motion. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), defendant’s counsel filed an opening brief requesting this court review the record and determine whether any arguable issues existed on appeal. We reviewed the entire record and affirmed the order below. (People v. Cortez (B280911, Nov. 6, 2017) [nonpub. opn.].)
After we issued our opinion, defendant filed a petition for rehearing, asking this court to reconsider the appeal in light of Senate Bill No. 620 (2017-2018 Reg. Sess.). We denied the petition, and the Supreme Court granted defendant’s petition for review, transferring the case back to us, with directions to vacate our decision, and reconsider the appeal in light of Senate Bill No. 620. Having done so, we affirm the order below, but remand for the trial court to exercise its discretion regarding the firearm enhancements.
BACKGROUND
The facts are set out in the Supreme Court’s opinion in this case. (People v. Cortez (2016) 63 Cal.4th 101, 105-110 (Cortez I).) Briefly, while riding in a car driven by defendant, codefendant Rodrigo Alonso Bernal shot at two teenagers, killing one. Although the victims were not gang members, Bernal was a gang member and the shooting took place in rival gang territory. Before the shooting, the surviving victim heard a female voice say, “ ‘ “Where you guys from?” ’ ” and “ ‘ “Let them have it.” ’ ” A bystander saw the car screech to a halt and Bernal get out and fire, then heard Bernal say, “ ‘ “Let’s go, let’s go,” ’ ” as he got back in the car. The car drove away. (Id. at pp. 105-107.)
Defendant gave conflicting accounts of the incident to police. At trial, she testified she was not a gang member and Bernal was her neighbor. She did not think Bernal was a gang member, although he talked about the gang, lived in gang territory, and carried a gun at all times. The day of the shooting she gave him a ride to pick up some money he had lent someone. As they neared the intersection where the shooting occurred, she saw two young men yelling and making signs with their hands. Bernal jumped out of the still-moving car without saying a word and began shooting. He got back into the car and defendant drove away. She knew something bad had happened, but she was scared so she did not ask any questions about it. Afterward, she was shocked and did not know what to do. (Cortez I, supra, 63 Cal.4th at pp. 109-110.)
Defendant and Bernal were convicted of murder and premeditated attempted murder, and gang and firearm allegations were found true for each count (Pen. Code, §§ 186.22, subd. (b)(1)(C), 12022.53, subds. (d), (e)(1)). Defendant was sentenced to a total term of 50 years to life, consisting of 25 years to life for the murder count, and 25 years to life for the firearm enhancement for that count. The sentence for the attempted murder count, and the firearm enhancement for that count, were ordered to run concurrently with the murder count. The gang enhancements were stayed pursuant to section 654. At the sentencing hearing, the court acknowledged that it had “very little discretion” concerning defendant’s sentence given the “mandatory” sentencing structure.
On appeal, in a split decision, we affirmed Bernal’s conviction but reversed defendant’s conviction, finding several prejudicial errors. (Cortez I, supra, 63 Cal.4th at p. 105.) We did not reach additional issues raised by defendant, including whether the trial court applied the correct legal standard when ruling on her new trial motion.
The Supreme Court reversed our judgment and remanded for further proceedings. (Cortez I, supra, 63 Cal.4th at p. 134.)
On remand, we reversed the judgment and remanded for the trial court to rehear and redetermine defendant’s new trial motion under the appropriate standard. The trial court denied the motion, stating on the record that it had “conduct[ed] an independent examination in weighing all the evidence.”
Defendant timely appealed, and on August 15, 2017, her counsel filed a brief pursuant to Wende. On October 11, 2017, the Governor approved Senate Bill No. 620 (2017-2018 Reg. Sess.), with an effective date of January 1, 2018. (Stats. 2017, ch. 682, § 1.) We issued our opinion in defendant’s pending appeal on November 6, 2017, finding no arguable issues. That same day, defendant filed a petition for rehearing based on the passage of Senate Bill No. 620, and asked this court strike the Wende brief and permit her to file a new opening brief (a copy of which was lodged with this court). We denied the petition for rehearing on November 9, 2017. On January 24, 2018, the Supreme Court granted defendant’s petition for review and transferred the case back to us, with directions to vacate our decision, and to reconsider the appeal in light of Senate Bill No. 620. No supplemental briefs were filed by the parties.
DISCUSSION
Pursuant to our review under Wende, we are satisfied that the trial court used the correct legal standard in reviewing defendant’s new trial motion. (Smith v. Robbins (2000) 528 U.S. 259, 279-284; Wende, supra, 25 Cal.3d at p. 441; see People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
Nevertheless, a conditional reversal is required. On January 1, 2018, Senate Bill No. 620 took effect, which amends section 12022.53, subdivision (h), to remove the prohibition against striking the gun use enhancements under this and other statutes. The amendment grants the trial court discretion to strike or dismiss an enhancement imposed under section 12022.53. (Stats. 2017, ch. 682, § 2.)
The discretion to strike a firearm enhancement under section 12022.53 may be exercised as to any defendant whose conviction is not final as of the effective date of the amendment. (See In re Estrada (1965) 63 Cal.2d 740, 742-748; see also People v. Brown (2012) 54 Cal.4th 314, 323.) Here, defendant’s appeal was not yet final when Senate Bill No. 620 went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 305-306 [“a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal”]; People v. Smith (2015) 234 Cal.App.4th 1460, 1465 [“[a] judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari have expired”]; see also Bell v. Maryland (1964) 378 U.S. 226, 230 [“[t]he rule applies to any such [criminal] proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it”].)
Remand is not required when there is no reasonable possibility the court would exercise its new discretion to strike the firearm enhancement. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The record in this case does not demonstrate there is no reasonable possibility the court would exercise its new discretion to strike either the firearm enhancements or the penalty for the firearm enhancements; we simply do not know how the court may choose to exercise its discretion on remand. Accordingly, we remand to allow the trial court the opportunity to exercise its newly granted discretion under subdivision (h) of section 12022.53. (People v. Rodriguez (1998) 17 Cal.4th 253, 257.)
On remand, the court may exercise its discretion under section 12022.53, subdivision (h), to strike all of the firearm enhancements or impose any one of the enhancements. If the court chooses to impose a firearm enhancement, it must strike any enhancement providing a longer term of imprisonment, and impose and stay any enhancement providing a lesser term. (§ 12022.53, subds. (f)&(h).) For example, the court may choose to impose the 25-year-to-life enhancement under subdivision (d). If so, it should impose and stay the enhancements under subdivisions (c) and (b). If the court imposes the 20-year enhancement under subdivision (c), it must then strike the 25-year-to-life enhancement under subdivision (d), and impose and stay the 10-year enhancement under subdivision (b). Moreover, any enhancement imposed under section 12022.53 must be imposed consecutively rather than concurrently.
In addition, the trial court has discretion to strike only the punishment for the enhancement. (§ 1385, subd. (a); In re Pacheco (2007) 155 Cal.App.4th 1439, 1443-1446.) “In determining whether to strike the entire enhancement or only the punishment for the enhancement, the court may consider the effect that striking the enhancement would have on the status of the crime as a strike, the accurate reflection of the defendant’s criminal conduct on his or her record, the effect it may have on the award of custody credits, and any other relevant consideration.” (Cal. Rules of Court, rule 4.428(b).) If the trial court exercises its discretion to strike only the punishment, the gun enhancement will remain in the defendant’s criminal record, and may affect the award of custody credits. Specifically, subdivision (c)(22) of section 667.5 provides that a violent felony is “[a]ny violation of Section 12022.53.” As a violent felony, the defendant would be entitled to a maximum of 15 percent conduct credits. (§ 2933.1, subd. (a).)
If the court decides to strike the firearm enhancements or the punishment for the firearm enhancements, the trial court should consider whether to impose sentence for the gang enhancements which were previously stayed due to imposition of the firearm enhancements. (§ 12022.53, subd. (e)(2).)
DISPOSITION
The order is affirmed. The cause is remanded to the superior court for the limited purpose of conducting a new sentencing hearing consistent with this opinion.

GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J. ROGAN, J.*