Filed 8/22/18 P. v. Perryman CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed with directions.

William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Falkenstein Hennick, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant Bruce Allen Perryman guilty of attempted murder (Pen. Code, §§ 664, 187, count 1),[1] assault with a firearm (§ 245, subd. (a)(2), count 2), and criminal threats (§ 422, count 3). As to count 1, the jury also found that he personally used a firearm within the meaning of section 12022.53, subdivision (b). As to counts 2 and 3, the jury found that he personally used a firearm within the meaning of section 12022.5, subdivision (a). The court imposed a total prison term of 15 years, which was comprised of five years on count 1, plus 10 years on the firearm enhancement. The court imposed three years on count 2, plus four years on the firearm enhancement, but stayed both under section 654. As to count 3, the court imposed two years, plus four years on the firearm enhancement, to run concurrent to the term imposed on count 1.

Defendant filed a timely notice of appeal. Defendant argues we should remand for resentencing to allow the trial court to exercise discretion to strike the firearm enhancements under the recent amendments to sections 12022.5 and 12022.53 (Senate Bill 620 (2017-2018 Reg. Sess.)). The People concede, and we agree.

ANALYSIS[2]

Remand Is Required for the Trial Court To Consider Whether To Strike the Firearm Enhancements

The jury found true the firearm enhancements alleged under sections 12022.53, subdivision (b), and 12022.5, subdivision (a). At the time of sentencing, the trial court had no power to strike the firearm enhancements under section 1385. (See former §§ 12022.53, subd. (h) & 12022.5, subd. (c).) However, in 2017, while defendant’s appeal was pending, the Legislature approved and the Governor signed Senate Bill 620, which, as of January 1, 2018, gives trial courts the discretion to strike enhancements found true under sections 12022.53 and 12022.5, in the interest of justice. (§§ 12022.53, subd. (h), 12022.5, subd. (c); see People v. Watts (2018) 22 Cal.App.5th 102, 119 (Watts), People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080.)

Defendant asks that he be given the benefit of the current versions of section 12022.53, subdivision (h), and 12022.5, subdivision (c), and that we remand the matter for the trial court to exercise the discretion now provided by the statutes. Both defendant and the People agree that Senate Bill 620’s amendments to sections 12022.53, subdivision (h), and 12022.5, subdivision (c), apply retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 747-748 (Estrada); People v. Francis (1969) 71 Cal.2d 66, 75-76 (Francis); People v. Brown (2012) 54 Cal.4th 314, 323.) They also agree that the instant matter is not final, and it must be remanded for the trial court to exercise its discretion for possible resentencing under sections 12022.53, subdivision (h), and 12022.5, subdivision (c).

Under Estrada, supra, 63 Cal.2d 740, “courts presume that, absent evidence to the contrary, the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal.” (Watts, supra, 22 Cal.App.5th at p. 119; see Estrada, at pp. 747-748.) “Estrada 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.” (Watts, at p. 119; Francis, supra, 71 Cal.2d at pp. 75-76.)

We therefore reverse the firearm enhancements imposed under sections 12022.53 and 12022.5 and remand the matter to the trial court for resentencing, where the court can exercise its discretion to determine whether or not to strike the enhancements imposed.

DISPOSITION

The judgment of conviction is affirmed, but the sentence is reversed and remanded to the trial court so that it may exercise its discretion to impose or strike the firearms enhancements under the amended provisions of section 12022.53, subdivision (h) and 12022.5, subdivision (c).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

SLOUGH

J.

FIELDS

J.