Where a case was remanded to give the trial court an opportunity to exercise its discretion under Penal Code section 12022.53, subdivision (h) after the enactment of Senate Bill No. 620, defendant had a right to be present with counsel at a hearing. On his first appeal, Roach’s conviction was affirmed and his case remanded “for the trial court to exercise its discretion under section 12022.53, subdivision (h)” based on SB 620. On remand, the case was called “for hearing on remittitur,” but Rocha, his counsel, and the prosecutor were not present. The court issued a written order declining to exercise its discretion to strike the section 12022.53 allegation. Rocha appealed, arguing he had the right to be present with counsel when the court exercised its discretion on remand. Held: Reversed and remanded. Penal Code section 1260 sets out the permissible dispositions of a cause on appeal and “permits the reviewing court to ‘remand the cause to the trial court for such further proceedings as may be just under the circumstances.'” (People v. Rodriguez (1998) 17 Cal.4th 253, 258.) Under section 1260, the presence of the defendant and his counsel are required on remand when the trial court will consider whether to exercise its sentencing discretion if it would be “just under the circumstances.” Here, it was “‘manifestly unfair’ to permit the trial court to decide how to exercise its new discretion under section 12022.53(h) without affording defendant and his counsel the opportunity to make an argument if they so desire.” Reversal and remand were necessary even under the Watson standard. “[I]t is reasonably probable that input from defendant and his counsel would lead to a more favorable exercise of the court’s discretion.” [Editor’s Note: The Court of Appeal declined to address whether defendant had a constitutional right to counsel at a hearing on remand and instead concluded the issues could be resolved on narrower statutory grounds.]

The scope of the previous order of remand does not restrict the appellate court’s authority under Penal Code section 1260 to also remand for proceedings under newly enacted laws (here SB 1393). On appeal Rocha also argued that, on remand, the trial court should consider whether to strike his five-year prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)(1)) based on SB 1393. The Court of Appeal agreed. SB 1393 amended Penal Code sections 667 and 1385 to give the trial court discretion to strike or dismiss five-year prior conviction enhancements. It is retroactive and applies to Rocha because it went into effect before his judgment was final. However, the Attorney General argued review of the claim was barred because it was beyond the scope of the limited remand the court previously ordered in this case, and was “unwarranted” because the trial court’s refusal to exercise its discretion under section 12022.53, subdivision (h) in Rocha’s favor demonstrates that it would not strike the prior conviction enhancement. The Court of Appeal disagreed. The previous order of remand does not limit the scope of the current order of remand. Additionally, “[t]he trial court’s order sheds no light on how it might rule on this issue, and neither the People nor defendant had an opportunity to present arguments relating to the amended provisions.”

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B290779A.PDF