Filed 5/7/18 P. v. Licon 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

SERGIO GUTIERREZ LICON,

Defendant and Appellant.
C084549

(Super. Ct. No. 06F03222)




A jury found defendant Sergio Gutierrez Licon guilty of numerous crimes and found true several firearm enhancement allegations under Penal Code sections 12022.5 and 12022.53. Accordingly, the trial court sentenced defendant to an aggregate term of 36 years eight months in state prison.
On appeal, defendant raises a single issue: he contends that he is entitled to benefit from the recent changes to sections 12022.5 and 12022.53 giving trial courts the discretion to strike firearm enhancements. He therefore asks us to remand this matter to allow the trial court the opportunity to exercise its discretion. The People concede the issue.
On October 11, 2017, the Governor signed into law Senate Bill No. 620, which amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h), effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1-2, respectively). Prior to the enactment of Senate Bill No. 620, and at the time defendant was sentenced by the trial court, these provisions required mandatory imposition of sentencing enhancements in certain enumerated situations. As amended, these provisions now state: “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.” (§§ 12022.5, subd. (c); 12022.53, subd. (h).)
Absent evidence to the contrary, it is presumed that the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) The Estrada rule has been applied not only to amendments reducing the penalty for a particular offense, but also to amendments giving the court the discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.) Because defendant’s conviction is not yet final, the change to sections 12022.5 and 12022.53 enacted by Senate Bill No. 620 apply to his case.
Since the trial court could not be aware that it had the discretion to strike the section 12022.5 and section 12022.53 enhancements, the appropriate remedy is to remand for the trial court to exercise its discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to exercise its discretion under sections 12022.5, subdivision (c) and 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if appropriate following exercise of that discretion, to resentence defendant accordingly.



/s/
Robie, J.



We concur:



/s/
Hull, Acting P. J.



/s/
Hoch, J.