Filed 10/30/18 P. v. Cox CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
DEVONNAE COX,
Defendant and Appellant.
|
C084991
(Super. Ct. No. 15F05075)
|
A jury convicted defendant Devonnae Cox on two counts of robbery (Pen. Code, § 211)[1] and found true an enhancement allegation for personal use of a firearm (§ 12022.53, subd. (b)). The trial court sentenced him to 13 years in state prison.
Defendant now contends we must remand the matter for a new sentencing hearing because Senate Bill No. 620 (2017-2018 Reg. Sess.; Stats. 2017, ch. 682, §§ 1 & 2) (Senate Bill 620), which became effective January 1, 2018 and gives the trial court discretion to strike a firearm enhancement in the interest of justice, applies retroactively to cases not yet final on appeal. The People agree and so do we. We will remand for resentencing.
BACKGROUND
We limit the background to the circumstances relevant to the contention on appeal. An information charged defendant with two counts of robbery and as to each count, it was further alleged he had personally used a firearm in the commission of the offense. Following a jury trial, defendant was found guilty on both counts and the firearm enhancement allegations were found true. At the sentencing hearing, the trial court noted these were very serious offenses and two victims were impacted. The trial court also noted it thought defendant had some genuine potential to get his “life back in order and to turn it around.” The trial court sentenced defendant to a term of 13 years in state prison as follows: the middle term of three years on count one, plus 10 years for the firearm enhancement, and a concurrent term of three years on count two, plus 10 years for the firearm enhancement.
DISCUSSION
Effective January 1, 2018, Senate Bill 620 was enacted, authorizing a trial court to exercise its discretion under section 1385 to strike or dismiss a firearm enhancement allegation or finding made pursuant to sections 12022.5 and 12022.53. (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1 & 2.) The legislation is retroactive and applies to cases, such as this one, that were not final as of January 1, 2018, in which firearm enhancements were imposed. (Stats. 2017, ch. 682; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
“Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Here, at sentencing, the trial court lacked discretion as to the firearm enhancement. Under the newly amended section 12022.53, it now has discretion. Nothing in the record before us clearly indicates the trial court would not have exercised its discretion to strike defendant’s firearm enhancements. We will remand to permit the trial court to consider exercising its newfound discretion.
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded to the trial court to consider exercising its discretion under section 12022.53, subdivision (h), as amended by Senate Bill 620.
/S/
MAURO, J.
We concur:
/S/
RAYE, P. J.
/S/
BUTZ, J.
[1] Undesignated statutory references are to the Penal Code.
