People v. Rocha

A jury found Defendant guilty of first-degree murder and found true a gang enhancement and a firearm use enhancement. The court found true a prior serious felony allegation and a strike allegation and sentenced defendant to 25-years-to-life for the murder, doubled due to the strike, 25-years-to-life for the firearm enhancement, and five years for the prior serious felony. The Supreme Court remanded for consideration in light of an amendment to Penal Code section 12022.53(h), which took effect on January 1, 2018, giving trial courts the discretion to strike firearm enhancements imposed under section 12022.53. The court of appeal again affirmed Defendant’s conviction and remanded for the trial court to exercise its discretion under section 12022.53(h). On remand, the court called the case “for hearing on remittitur.” The prosecutor was not present, nor were Defendant or defense counsel. The court issued a “Statement of Discretion Resulting in No Change to Defendant’s Sentence.” The court of appeal reversed. Defendant should have had the opportunity to be present with counsel at a hearing on remand and the trial court should have an opportunity to exercise its discretion to dismiss his five-year prior serious felony enhancement under recent revisions to Penal Code sections 667 and 1385. View "People v. Rocha" on Justia Law