Case was remanded for trial court to exercise its discretion under Senate Bill No. 620 (granting courts discretion to dismiss firearm use enhancements), which was enacted after defendant’s sentencing and applies retroactively in his case. A jury convicted Zamora of several offenses, and found true several enhancements, including firearm use enhancements under Penal Code sections 12022.5 and 12022.53. He was sentenced to a determinate term of 20 years, plus 100 years to life. He appealed on various grounds. One issue was whether the case should be remanded for resentencing to permit the trial court to consider its discretion to strike the firearm enhancements. Held: Affirmed, but remanded for resentencing. SB 620 amended section 12022.5, subdivision (c), and section 12022.53, subdivision (h), as of January 1, 2018, to provide that “[t]he court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement” that is otherwise required to be imposed under section 12022.5 or section 12022.53. At the time of Zamora’s sentencing, the enhancements were mandatory and there was no discretion to strike or dismiss them. His judgment was not final at the time SB 620 went into effect. Because the Legislature did not make its intent clear about whether its provisions operate prospectively or retroactively, the presumption of retroactivity announced in In re Estrada (1965) 63 Cal.2d 740 and other cases applies to defendants whose judgments were not final when the change became effective, as the People conceded in this case. The court agreed with the reasoning in People v. Arredondo (2018) 21 Cal.App.5th 493. The matter was remanded for the trial court to exercise its discretion regarding striking the use of firearm enhancements. [Editor’s Note: SB 620 gives the discretion to “strike or dismiss” a firearm use enhancement. The court remanded for the trial court “to determine whether to strike the firearm enhancements.” It contained no discussion regarding the possibility of dismissing the firearm enhancements.]
Case was also remanded for trial court to exercise its discretion under Senate Bill No. 1393 (granting courts discretion to dismiss serious felony enhancements), which was enacted after defendant’s sentencing and applies retroactively in his case. In a bifurcated proceeding, the trial court found true allegations that Zamora had been convicted of prior serious felonies (Pen. Code, § 667, subd. (a)). On appeal, he argued his case should be remanded for resentencing under 1393 to permit the trial court to exercise its newly granted discretion as to whether to strike or dismiss the serious felony conviction enhancements. The Attorney General conceded the point and the Court of Appeal agreed. Effective January 1, 2019, SB 1393 amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court to strike or dismiss a prior serious felony conviction for sentencing purposes. As with the firearm enhancements, at the time of Zamora’s sentencing, the prior serious felony enhancements were mandatory and there was no discretion to strike or dismiss them. Agreeing that the same retroactivity analysis applies to SB 1393, the court concluded “[t]his change in law also applies retroactively to those like Zamora whose sentences were not final when Senate Bill No. 1393 became effective.” The court remanded the case so the trial court could exercise its newly gained discretion as to whether to dismiss or strike the serious felony enhancements for sentencing purposes.
Five-year term for one prior serious felony enhancement stricken where trial court imposed consecutive terms for two prior serious felonies that were tried together. The trial court found that Zamora had three prior serious felonies under section 667, subdivision (a). Two of the convictions occurred in 2004; they were charged together under the same case number and adjudicated in the same proceeding. On appeal, Zamora argued that one of the prior serious felonies must be stricken. The Court of Appeal agreed. A five-year term for a prior serious felony enhancement may only be imposed for a “conviction on charges brought and tried separately.” (Pen. Code, § 667, subd. (a)(1).) Here, the 2004 offenses were brought and tried together. The court struck one of the five-year terms.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E069607.PDF
