Based on a recent amendment to Penal Code section 12022.53, defendant is entitled to remand for the trial court to consider whether to strike or dismiss the enhancement for the personal use of a firearm causing death. A jury found Woods guilty of second degree murder and being a felon in possession of a firearm, and also found that he personally discharged a firearm causing death (Pen. Code, § 12022.53). He was 19 years old at the time of the crimes and was sentenced to 40 years to life (15 years to life for the murder and 25 years to life for the firearm enhancement). On appeal, he presented a number of arguments, including that his case should be remanded based on a recent amendment to section 12022.53 so the trial court can exercise its newly-granted discretion to decide whether to strike the firearm enhancement. Held: Affirmed, but remanded to allow trial court to exercise its discretion. Penal Code section 12022.53, subdivision (d) provides a sentence enhancement of 25 years to life for personally and intentionally discharging a firearm and proximately causing great bodily injury or death to a person other than an accomplice. At the time of Wood’s sentencing, the trial court had no power to strike the firearm enhancement or impose a sentence other than 25 years to life. However, effective January 1, 2018, section 12022.53, subdivision (h) was amended to provide that a trial 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. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” The Court of Appeal concluded that remand was appropriate based on In re Estrada (1965) 63 Cal.2d 740. The amendment to section 12022.53, subdivision (h) mitigates punishments and there is nothing to indicate that the Legislature intended the amendment to apply prospectively only. Because it took effect before Woods’ case was final, it applies to his case.

Defendant was not entitled to remand for a Franklin hearing because he was already afforded the opportunity to make a record relevant to his eventual youth offender parole hearing and failed to take advantage of it. Woods also argued that he was entitled to remand because the record was not clear that he was afforded a sufficient opportunity to place evidence on the record necessary for his eventual youth offender parole hearing under Penal Code section 3051. The Court of Appeal disagreed. In People v. Franklin (2016) 63 Cal.4th 261, the Supreme Court held that Franklin, who was a minor at the time of the offense but was tried as an adult, was not sentenced to the functional equivalent of life without the possibility of parole, because newly-enacted Penal Code section 3051 provides that he will be entitled to a youth offender parole hearing, at which time he may be considered for parole. But the matter was remanded to the trial court for a determination of whether the defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing‚ because it was not clear whether he had been afforded such an opportunity previously. The Court of Appeal distinguished Franklin. Woods was not a minor at the time of the offense, and thus was not subjected to a sentence that may have violated constitutional principles prohibiting a minor from being sentenced to the functional equivalent of life without parole. Further, unlike the juvenile offender in Franklin, Woods was sentenced after section 3051 was enacted and amended to provide youth offender parole hearings to anyone under age 25 at the time of the offense. Woods therefore had the opportunity and incentive to put information on the record related to a future youth offender parole hearing. The record reflects that his counsel was asked several time whether he wanted to add anything to the probation report, and counsel indicated he had nothing further to add.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C081813.PDF