Filed 5/9/18 P. v. Lacy 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DAMEON LACY,

Defendant and Appellant.
C085378

(Super. Ct. No. 16FE011323)




A jury convicted defendant Dameon Lacy of second degree robbery (Pen. Code, § 211) and sustained the allegation that defendant personally used a firearm (§ 12022.53, subd. (b)).
Sentenced to state prison for an aggregate term of 12 years, defendant appeals. He contends he is entitled to the ameliorative benefit of the amendment to section 12022.53 which allows the sentencing court to exercise discretion under section 1385 to strike or dismiss the firearm-use enhancement. We agree and will remand the matter to the trial court.
The facts underlying the offense are not relevant to the issue raised on appeal. At sentencing, the court agreed with defense counsel that the crime did not demonstrate planning, sophistication, or professionalism, but just the opposite, and although the crime was “dangerous” and “bad,” “it was mostly just stupid . . . .” The court found in aggravation that defendant’s conduct indicated a serious danger to society. In mitigation, the court found that defendant had no prior record and he was youthful. The trial court sentenced defendant to the low term of two years for robbery and 10 years for the firearm enhancement under former section 12022.53, subdivision (b).
When the trial court imposed sentence, the firearm enhancement was mandatory and the trial court did not have any discretion to strike it. (Former § 12022.53, subd. (h) [“Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section”].) Effective January 1, 2018, section 12022.53, subdivision (h) now allows a court to exercise discretion under section 1385 to strike or dismiss the enhancement imposed under that section: “The 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. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, § 2.)
Generally, an amendment to the Penal Code is not retroactive but an exception applies when an amendment reduces the punishment for a particular crime or gives the sentencing court discretion to impose a lower sentence and the judgment is not yet final. (§ 3; People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740.) The People concede that the amendment applies retroactively to defendant’s case because it is not yet final and that remand is required here.
We agree. Nothing in the text of the bill which amended section 12022.53 suggests the Legislature intended the amendment to apply prospectively only. Thus, the amendment applies to defendant’s appeal. The record does not clearly indicate that the court would not have exercised its discretion to strike or dismiss the section 12022.53, subdivision (b) enhancement had it been possible to do so at the time of the original sentencing. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; see also People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded to the trial court for the purpose of allowing the court to exercise its discretion whether to strike or dismiss the enhancement under section 12022.53, subdivision (b). Upon doing so, the court shall resentence defendant accordingly.



/s/
Blease, Acting P. J.


We concur:



/s/
Butz, J.



/s/
Mauro, J.