Where Senate Bill No. 620 applies retroactively to a case pending on appeal, remand is required unless the record reveals a clear indication the trial court would not have reduced the defendant’s sentence even if it had discretion to do so. Almanza was convicted of first degree murder and assault with a firearm, and the jury found true gang and gun use enhancements (Pen. Code, §§ 186.22, subd. (b)(1)(C), 12022.53, subd. (d)). He was sentenced to 137 years to life, including 25 years to life for the gun use enhancement. After his conviction was affirmed on appeal, the Supreme Court remanded the case to the Court of Appeal to consider SB 620, which gave trial courts newfound discretion to strike gun use enhancements in the interest of justice. The Court of Appeal concluded remand was not appropriate because there was no reasonable probability Almanza would receive a more favorable sentence. Thereafter, the First District issued its opinion in People v. McDaniels (2018) 22 Cal.App.5th 420, concluding the Almanza opinion applied what amounted to an abuse of discretion standard in deciding not to remand. The Almanza court granted rehearing on its own motion. Held: Remanded for the superior court to consider its discretion under SB 620. Finding the reasoning of McDaniels persuasive, the court agreed that when a trial court is unaware it has the discretion to reduce a sentence, remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if it had discretion to do so at the time of sentencing. Applying this standard, remand was required. Although the trial court imposed consecutive rather than concurrent sentences for murder and assault with a firearm, the initial sentence does not clearly indicate what the trial court might do on remand, where a retroactive change in the law subsequent to the original sentence gives the trial court discretion it did not previously have.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B270903D.PDF