Filed 4/10/18 P. v. Munoz CA2/1
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCOS MUNOZ,

Defendant and Appellant.
B275732

(Los Angeles County
Super. Ct. No. BA358733)

APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Remanded; affirmed in part and reversed in part with directions.
Victor J. Morse under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Marcos Munoz appealed from the judgment entered on his conviction for first degree murder, with firearm and gang sentence enhancements, contending insufficient evidence supported the gang enhancement finding and admission of hearsay evidence violated his due process rights. In an opinion filed on October 20, 2017, we concluded the gang enhancement was supported by substantial evidence, and although the trial court erred in admitting hearsay, the error was harmless beyond a reasonable doubt. We therefore affirmed the conviction.
Before our opinion became final, the Governor signed into law Senate Bill No. 620, which amends Penal Code section 12022.53 to give trial courts discretion to strike, in the interest of justice, certain firearm use sentencing enhancements. (See Pen. Code, § 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) The amendment became effective on January 1, 2018. (See Cal. Const., art. IV, § 8, subd. (c).)
The California Supreme Court granted Munoz’s petition for review and transferred the cause back to us with directions to vacate our decision and reconsider it in light of Senate Bill No. 620. We have done so, and now hold that Munoz is entitled to a new sentencing hearing wherein the trial court must decide whether to strike the firearm enhancement. In all other respects, we again affirm the trial court’s judgment.
BACKGROUND
On August 17, 2004, Paul Plascencia, Munoz’s cousin and a member of the Alley Tiny Criminals street gang, a subset of the Harpys street gang, was shot and killed by an unknown assailant. Munoz told police that Plascencia may have been killed by a Harpys member.
The next month, on September 28, 2004, Munoz, himself a member of the Rockwood street gang, drove around in Los Angeles for two hours in his blue Chevrolet Astro van, looking for Harpys members, whom he intended to shoot in retaliation for their allegedly killing Plascencia. When Munoz, proceeding south, turned eastbound from Catalina Street onto 23rd Street, he saw standing on the south side of the street men he took to be Harpys. He stopped, exited the van, and fired six rounds at the men with a .38 Colt revolver, killing Michael Castillo. Munoz shouted, “That’s what you get for fucking with us, motherfucker,” then got back in the van and continued eastbound to the end of 23rd and turned left onto Vermont Avenue, getting away.
Police found two expended lead, .38 caliber, non-hollow point bullets at the scene, but no shell casings.
Munoz ultimately left the vehicle at 14808 Studebaker Road in Los Angeles, where it was found a month later by Los Angeles Police Detective Stanley Evans.
Nearly five years later, on July 4, 2009, Los Angeles Police Officer Abel Barboa observed Munoz hovering around a security screening area at Los Angeles International Airport. Munoz said he believed his ex-wife was being held hostage, and he himself was going to be killed. Barboa took Munoz to Harbor General Hospital, where he was held for two days for psychiatric observation pursuant to Welfare and Institutions Code section 5150 (5150 hold or 5150 holds).
Munoz was released from Harbor General on July 6, 2009. Three hours later, Los Angeles Police Officer Shauna Saliz encountered him outside the hospital as he ran through traffic in the middle of the street. He was disoriented and panicking, waving his arms and yelling. He said, “They’re trying to kill me. There’s a black SUV. The Mexican Mafia is out to kill me.” Saliz saw no SUV. Munoz rambled to himself and pointed to a Cadillac and said there might be people inside armed with guns. Saliz took Munoz back to Harbor General, where he was readmitted for psychiatric observation on another 5150 hold.
The next day, on July 7, 2009, Munoz was again released from the hospital. He then went to a police station and confessed to three shootings from five years earlier, including the Castillo murder.
Munoz first told Detective Julian Pere he committed a murder in October or November of 2004 on Beverly Boulevard and Normandie Avenue in Los Angeles, shooting an 18th Street gang member five times with a .38 caliber Smith & Wesson revolver.
Munoz said he committed another murder (the Castillo murder) around the same time at 25th Street and Vermont Avenue, firing six rounds at Harpys members and striking one of them once.
Finally, Munoz told Detective Pere that in December 2004 he fired four rounds with a nine-millimeter handgun at 18th Street members at Bonnie Brae Street and Third Street.
Police were able to confirm only that shootings consistent with Munoz’s first and second assertions had occurred. As to the second shooting, on 25th Street, police inferred Munoz meant the Castillo murder.
The Castillo case was assigned to Detectives Charles Geiger and Vince Carreon, who, having no prior knowledge of the five-year-old case, familiarized themselves with the circumstances of the murder before interviewing Munoz. During the interview, which was recorded, Munoz said that in October or November of 2004, between 9:00 and 11:00 p.m. “on 25th Street and Vermont,” “or 24th,” “three blocks” south of the 10 freeway, he fired six times at four men—one of whom was wearing a white jersey—and a woman, missing all but the man in the jersey, a Harpys member, who was struck once in the back. He said the shooting occurred on the south side of the street “right after” his cousin was killed, which had been on August 17, 2004.
Munoz said, “It could have been September, October” of 2004, between 9:00 or 10:00 p.m. He had driven to the scene in his blue Chevy Astro van, going east toward Vermont Avenue from “a little small street.” When asked whether there was anything about the van that would stand out, Munoz said it had chrome rims. He identified the ammunition as copper-jacketed hollow points and the gun as a .38 caliber Colt revolver, which after the shooting he “gave . . . back to the hood,” or “[p]assed it back.” He said nothing aloud during the shooting, but if he had said anything it would have been “Rockwood.”
After the interview, Geiger and Carreon drove Munoz toward the scene of the murder. They drove south on Catalina Street, turned left on 25th, as Munoz initially directed (not 23rd Street, where the Castillo murder had occurred), and continued east to Vermont. When Munoz indicated they were on the wrong street, they repeated the procedure on 24th Street and then again on 23rd. Munoz then identified 23rd Street as the scene of the crime and indicated that after the 2004 shooting he continued east on 23rd, turned left onto Vermont, and got onto the 10 freeway three blocks away, exactly as witnesses had described five years earlier.
Munoz was charged with having personally used and discharged a firearm to commit first degree murder for the benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a), 12022.53, subds. (b), (c) & (d).) It was further alleged he had suffered one prior serious or violent felony conviction. (Pen. Code, §§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d).) He pleaded not guilty and denied the special allegations.
Munoz was tried three times, the first two trials resulting in jury deadlock and mistrial.
At the third trial, Richard Castillo, the victim’s brother, testified that around 10:00 p.m. on September 28, 2004, a lone gunman exited a blue Chevy Astro van with “nice rims” at his house on the south side of 23rd Street and fired six shots at four men and a woman, killing his brother with one shot in the back. The man shouted, “That’s what you get for fucking with us, motherfucker,” then got back in the van and sped eastbound to the end of 23rd and turned left onto Vermont Avenue.
Jorge Ramos, who witnessed the Castillo murder, testified that immediately before the shooting a male voice “screamed out, ‘Where you guys from?’ or in Spanish, ‘where you vatos from?’ ” which Ramos described as a gang claim.
Officer Philip Zalba testified as a gang expert. He opined that Munoz, based on his statements, tattoos, and moniker “Demon,” was a Rockwood member and a Harpys rival. Zalba testified that Rockwood’s primary activities were assaults with deadly weapons, extortion, robbery, vandalism, and narcotics sales. When posed a hypothetical question based on the facts of this case, he opined that the shooting was committed in association with and for the benefit of the Rockwood gang. Zalba explained that a drive-by shooting of a rival gang member in the rival’s territory benefits a gang by elevating its reputation for violence, which tends to instill fear in the community and discourage challenges to the gang or reliance on or cooperation with police.
Munoz contended at trial that his confession to the Castillo murder was unreliable because he was delusional at the time.
Dr. Jack Rothberg, a forensic psychiatrist testifying for the defense, opined that when Munoz confessed to the Castillo murder he suffered from a psychosis that caused delusions, and was out of touch with reality and perceived events that did not actually occur. Dr. Rothberg testified that when he interviewed Munoz, he made fantastic, illogical, and delusional statements about the 2009 confession and his two 5150 holds, and was concerned that vehicle traffic in his neighborhood meant he had been targeted for assassination for having suggested to police in August 2004 that Harpys had killed Plascencia.
Dr. Rothberg also offered inadmissible hearsay evidence without objection, testifying that jail records disclosed Munoz had believed he was being gassed in his cell, and occasionally complained that people had inserted probes into him.
The prosecution not only offered no objection to this hearsay evidence, on cross-examination it elicited over Munoz’s objection further hearsay from Dr. Rothberg to the effect that jail mental health personnel had reported that Munoz suffered from no psychosis, his thought process was linear and goal-directed, and he was alert and “oriented times four.”
Dr. Sanjay Saghal, a forensic psychiatrist testifying for the prosecution, stated he interviewed Munoz in 2014. He opined Munoz may have had “some degree of psychotic thinking” when he confessed to the Castillo murder in 2009, likely the result of methamphetamine abuse, but the data was insufficient to determine to what degree it affected his interactions with others. Dr. Saghal observed that Munoz was coherent, communicative, and linear in his thinking during his 2009 confession, rather than disoriented, confused or disorganized, which weighed against him being psychotic at the time. That he had been released from Harbor General the day of his confession suggested he was not psychotic.
Over the defense’s hearsay objections, Dr. Saghal also offered extensive hearsay evidence, testifying at length about records generated by mental health personnel while Munoz was in jail. For example, he said that on July 10, 2009, jail personnel reported Munoz “had no need for mental health treatment,” as “he was communicative, calm, and . . . suitable for the general population.” Dr. Saghal testified that absence of a diagnosis of psychosis in the jail records indicated that “yet another clinician close to the date in question of the interview with police didn’t think [Munoz] was psychotic,” and jail personnel recommended general population placement and provided no mental health diagnosis. Dr. Saghal testified that a mental health evaluator at the jail reported Munoz was “communicative and straightforward,” and she wanted to “ ‘rule out a Cluster B personality disorder’ ” because she suspected he suffered only from an antisocial personality disorder.
The prosecutor relied on hearsay evidence during closing argument, stating that Dr. Rothberg’s opinion was unreliable because he had spent only “one and a half hours with” Munoz, in contrast with “the staff at Harbor U.C.L.A. who had constant observation the entire time he was there” and who diagnosed Munoz with “ ‘[m]alingering, antisocial personality disorder, no primary psychosis.’ ”
The prosecutor also argued that jail personnel had provided a similar diagnosis: “ ‘personality disorder . . . no primary psychosis.’ ” Dr. Rothberg, the prosecutor argued, “completely disagreed with every single medical professional that was involved in this case.” “Who’s in a better position to render an opinion about the defendant’s mental state on July 7, 2009?” he asked, “a hour-and-a-half interview a year and a half later? Or constant medical attention the entire time in Harbor U.C.L.A.?”
The jury found Munoz guilty of first degree murder and found the firearm and gang allegations to be true. He was sentenced to 25 years to life in prison, doubled under the “Three Strikes” law, plus consecutive terms of 25 years to life for the gun enhancement and five years for the felony conviction enhancement, for a total of 80 years to life. The trial court stayed imposition of sentence for the gang enhancement.
Munoz timely appealed.
DISCUSSION
I. Hearsay
Munoz contends the trial court prejudicially erred when it allowed Drs. Rothberg and Saghal to offer hearsay testimony about the content of his Harbor General and jail psychiatric records.
Hearsay evidence is a statement made by a witness not testifying at the hearing and offered to prove the truth of the matter asserted. (Evid. Code, § 1200, subd. (a).) Hearsay is inadmissible unless an exception applies. (Evid. Code, § 1200, subd. (b).)
Here, Drs. Rothberg and Saghal testified at length about psychiatric records generated by Harbor General and jail personnel. They testified that Harbor personnel had concluded Munoz’s perception was reality based, and he suffered no lasting psychosis other than antisocial personality disorder. They testified that jail personnel had found Munoz to be alert and oriented, with linear and goal-directed thought processes, suffering no psychosis and having no need for mental health treatment.
This testimony repeated numerous statements made outside the hearing by mental health personnel and was offered solely to prove their truth—that Munoz suffered from no lasting psychosis. It was thus inadmissible hearsay. An expert may not “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (People v. Sanchez (2016) 63 Cal.4th 665, 686.) “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth.” (Ibid.)
Respondent argues the doctors’ testimony was admissible because Munoz’s psychiatric records were business records. We disagree.
“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Evid. Code, § 1271, subds. (a)-(d).) A trial court has wide discretion in determining whether a qualified witness possesses sufficient personal knowledge of the identity and mode of preparation of documents for purposes of the business records exception. (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 797 & fn. 28.) Indeed, “any ‘qualified witness’ who is knowledgeable about the documents may lay the foundation for introduction of business records—the witness need not be the custodian or the person who created the record.” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 324.) Thus, a qualified witness need not have personal knowledge of reported events in order for a business record to be admissible under the hearsay exception. (See id. at p. 322.)
Munoz’s psychiatric records were never authenticated or admitted into evidence, and nothing in the record suggests Drs. Rothberg or Saghal had particular knowledge about the identity or mode of their preparation. Although they testified about how psychiatric records are prepared generally, they knew nothing specifically about Munoz’s records.
The Attorney General makes no attempt to explain how the testimony of Drs. Rothberg and Saghal falls under the business records exception. He merely notes that the trial court relied on the exception in overruling Munoz’s hearsay objection, and argues that because Munoz failed to complain about the court’s invocation of the exception at trial he cannot complain about it for the first time on appeal. Respondent offers no authority to support this argument other than an unexplained citation to People v. Braxton (2004) 34 Cal.4th 798, which held only that “a party may not challenge on appeal a procedural error or omission if the party acquiesced by failing to object or protest under circumstances indicating that the error or omission probably was inadvertent.” (Id. at p. 813.) But respondent offers no explanation how the trial court’s error could have been inadvertent. It was not. To preserve an evidentiary claim on appeal a defendant need do no more at trial than make a timely, properly grounded objection.
Respondent argues the hearsay was admissible because Munoz “opened the door” to it by eliciting hearsay testimony from Dr. Rothberg. We disagree. “By allowing objectionable evidence to go in without objection, the non-objecting party gains no right to the admission of related or additional otherwise inadmissible testimony. The so-called ‘open the door’ or ‘open the gates’ argument is ‘a popular fallacy.’ ” (People v. Gambos (1970) 5 Cal.App.3d 187, 192.)
But the error was harmless under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 [reversal required under the federal Constitution unless the error was harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [state law error requires reversal only if it is reasonably probable that the error had an effect on the verdict].)
The hearsay to which Drs. Rothberg and Saghal testified undermined Munoz’s false confession defense by indicating that in 2009 he suffered from no psychosis other than was induced by methamphetamine use. But the jury already knew that Munoz’s mental impairment was at most intermittent. He was admitted to Harbor General twice on 5150 holds and was twice discharged, indicating mental health personnel twice determined he was not so impaired as to pose a danger to himself or others.
Further, as Dr. Saghal testified, even a delusional person can sometimes tell the truth. No evidence suggested Munoz’s mental impairment affected his ability to relate truthfully to police the events of September 2004. During his confession he was coherent, communicative, and linear in his thinking, accurately describing a crime that had occurred five years prior. Although he got two details wrong—the street on which the shooting took place and type of ammunition used—he correctly identified the time of the shooting; the general location and route he took to and from it; the vehicle used, down to its rims; the type of gun used; the number and gender of victims; the number of shots fired; and the number of injuries. And he was able to drive police to the scene on 23rd Street after rejecting two false locations on 25th and 24th streets.
Munoz offers no explanation, and we can conceive of none, how the jury could believe that his purportedly delusional state produced a false confession correctly describing the Castillo murder.
We conclude Drs. Rothberg’s and Saghal’s hearsay testimony was harmless beyond a reasonable doubt.
II. Gang Enhancement
Munoz contends the jury’s true finding on the gang enhancement was unfounded. We disagree.
A “gang enhancement applies to one who commits a felony ‘for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ (Pen. Code, § 186.22, subd. (b)(1).) ‘In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period.’ ” (People v. Sanchez, supra, 63 Cal.4th at p. 698.)
“The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction. [Citations.] Like a conviction unsupported by substantial evidence, a true finding on a gang enhancement without sufficient support in the evidence violates a defendant’s federal and state constitutional rights and must be reversed. [Citations.] [¶] ‘In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We draw all reasonable inferences in favor of the verdict, and presume the existence of every fact the jury could reasonably deduce from the evidence that supports its findings. [Citations.] [¶] The court may not, however, ‘ “go beyond inference and into the realm of speculation in order to find support for a judgment. A finding . . . which is merely the product of conjecture and surmise may not be affirmed.” ’ [Citations.] ‘ “[E]vidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” ’ [Citation.] Indeed, ‘[a] trier of fact may rely on inferences to support a conviction only if those inferences are “of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt” that the inferred facts are true.’ ” (People v. Franklin (2016) 248 Cal.App.4th 938, 947-948.)
Munoz argues no evidence suggested his fellow gang members were aware of the Castillo murder or participated in it, and no evidence undermined the obvious motive—personal revenge. He is incorrect. First, Officer Zalba testified that a murder committed under the circumstances here would be intended to benefit the Rockwood gang by enhancing its status in the community. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209 [expert opinion about such behavior admissible to support a gang enhancement].) Second, Jorge Ramos and Richard Castillo testified the shooter shouted gang slogans, which constitute a challenge in gang culture. Specifically, Castillo testified the shooter shouted, “That’s what you get for fucking with us,” the plural pronoun suggesting the shooting was committed on behalf of several persons, not just for personal revenge. Finally, Munoz admitted in his 2009 confession that he obtained the gun from the Rockwood gang, and after the shooting gave it back to them. The jury could reasonably infer from this evidence that the gang participated to some extent in the crime, and could further reasonably conclude Munoz committed the murder intending to benefit the gang.
III. Resentencing Under Senate Bill No. 620
When sentencing Munoz, the trial court imposed a 25 years to life enhancement pursuant to Penal Code section 12022.53, subdivision (d), because the jury found that Munoz personally and intentionally used and discharged a firearm that caused great bodily injury and death. At the time of sentencing, the trial court lacked authority to strike or dismiss enhancements under Penal Code section 12022.53. (See, e.g., People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363, citing former Pen. Code, § 12022.53, subd. (h).) The court imposed a 25 years to life enhancement pursuant to Penal Code section 12022.53, subdivision (d), because the jury found that Munoz personally and intentionally used and discharged a firearm, causing death.
In October 2017, the Legislature amended Penal Code section 12022.53 to provide that 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.” (Pen. Code, § 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) The amendment went into effect on January 1, 2018, before the judgment of Munoz’s conviction became final. (See Cal. Const., art. IV, § 8, subd. (c).) Munoz contends the statute requires that the trial court be given an opportunity to exercise its new discretion to strike the firearm enhancement imposed as part of his sentence. We agree.
An amendment to the Penal Code will not generally apply retroactively. (See Pen. Code, § 3.) However, an exception applies when the amendment reduces punishment for a specific crime. (See In re Estrada (1965) 63 Cal.2d 740, 745; accord, People v. Brown (2012) 54 Cal.4th 314, 323-324.) Reduction of a punishment indicates the Legislature has “expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act,” and “should apply to every case to which it constitutionally could apply.” (In re Estrada, at p. 745.)
The exception to nonretroactivity extends to amendments that do not necessarily reduce a defendant’s punishment but give the trial court discretion to impose a lesser sentence. (People v. Francis (1969) 71 Cal.2d 66, 75-76; see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) Munoz argues the amendment to Penal Code section 12022.53 applies retroactively to defendants in his position. The People concede the point, and we agree.
Nevertheless, the People argue that we need not remand the case for resentencing because the record indicates the trial court “would not . . . have exercised its discretion to lessen the sentence.” (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez) [declining to remand for the trial court to consider its new discretion to strike a recidivist allegation where the record showed “no purpose would be served”].) In Gutierrez, the trial court increased the defendant’s sentence beyond what it believed the Three Strikes law required, by imposing the high term and two additional discretionary one-year enhancements. The court stated during sentencing that imposing the maximum sentence would be appropriate. (Ibid.) On appeal, the defendant requested that his case be remanded to the trial court for resentencing after our Supreme Court decided in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 that a trial court has discretion to strike prior strikes in determining a defendant’s sentence. The appellate court denied the request, noting that because the trial court had indicated both in its comments and by the sentence itself that a maximum sentence was appropriate, “no purpose would be served” by a remand. (Gutierrez, supra, 48 Cal.App.4th at p. 1896.)
The People argue that by the same reasoning, there is no need to remand Munoz’s case. They note that the court imposed a maximum sentence of 25 years to life imprisonment for first degree murder, and doubled it to 50 years to life pursuant to the Three Strikes law. In doing so, the court declined to exercise its discretion to strike a prior pursuant to Romero, and showed no inclination to grant any leniency at sentencing. Given these circumstances, Respondent argues there is no realistic probability that the court would show leniency to Munoz at resentencing.
We are not persuaded. In Gutierrez, the trial court stated during the initial sentencing hearing that “ ‘this is the kind of individual the law was intended to keep off the street as long as possible,’ ” and indicated it would not have exercised its discretion to lessen the sentence. (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) In the current case, although the trial court imposed a longer prison term than required, the court did not state or imply that it would have imposed the firearm enhancement even had it discretion not to do so.
Furthermore, because the law at the time of sentencing did not allow the trial court to strike firearm enhancements, Munoz had no reason to argue that the court should strike his enhancement. As our Supreme Court explained in a somewhat similar circumstance in People v. Rodriguez (1998) 17 Cal.4th 253, 258, “[t]he evidence and arguments that might be presented on remand cannot justly be considered ‘superfluous,’ because defendant and his counsel have never enjoyed a full and fair opportunity to marshal and present the case supporting a favorable exercise of discretion.” (Ibid. [requiring the presence of defendant and counsel at a hearing in which the court would determine whether it could reasonably exercise its discretion to strike a prior strike].)
DISPOSITION
Our opinion filed October 20, 2017, is vacated.
Munoz’s sentence is vacated. On remand, the trial court shall hold a new sentencing hearing to consider whether to exercise its discretion under Penal Code section 12022.53, subdivision (h), to strike or dismiss an enhancement otherwise required by Penal Code section 12022.53. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.



CHANEY, Acting P. J.

We concur:



JOHNSON, J.



LUI, J.