On remand to consider whether to strike firearm use enhancement based on Senate Bill No. 620, trial court did not abuse its discretion when it declined to strike the enhancement. Pearson was convicted of murder along with several other crimes, and an enhancement for use of a firearm under Penal Code section 12022.53 was found true. Though his conviction was affirmed on his initial appeal, the Court of Appeal remanded the matter for the trial court to consider whether to strike the firearm enhancement under SB 620, which amended section 12022.53 by adding subdivision (h), giving the trial court discretion “in the interest of justice pursuant to Section 1385 and at the time of sentencing” to strike or dismiss the enhancement otherwise required to be imposed. On remand, the trial court denied Pearson’s request to strike the enhancement. He appealed. Held: Affirmed. A court’s discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is reviewable for abuse of discretion. A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. The factors that the trial court must consider when determining whether to strike a firearm enhancement under section 12022.53, subdivision (h) on remand are the same factors the trial court must consider when handing down a sentence in the first instance. In addition to the factors expressly listed for determining whether to strike enhancements listed in California Rules of Court, rule 4.428(b), the trial court is also to consider the factors listed in California Rules of Court, rule 4.410 (listing general objectives in sentencing), as well as circumstances in aggravation and mitigation under rules 4.421 and 4.423. Here, the record reflected the trial court considered the factors it was required to consider. The trial court stated the defendants executed a special needs individual in cold blood and there was sufficient evidence to support the gun allegation. The trial court’s decision was squarely within the bounds of its discretion.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B293953.PDF