People v. Almanza

Filed 3/15/18; Opinion on remand from Supreme Court CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B270903 (Super. Ct. No. BA425421-02) Plaintiff and Respondent, (Los Angeles County)

v. OPINION FOLLOWING ORDER VACATING PRIOR CHRISTIAN ALMANZA, OPINION

Defendant and Appellant.

When the retroactive application of a statute gives a trial court discretion to reconsider imposing a lower sentence than one previously imposed, it is customary for an appellate court to remand the case to the trial court. But not always. A jury convicted Christian Almanza of first degree murder (Pen. Code, §§ 187, subd. (a), 189)1 and assault with a firearm (§ 245, subd. (b)). The jury found gang enhancement allegations true on both counts. (§ 186.22, subd. (b)(1)(C).) On the murder charge, the jury found a principal personally and intentionally discharged a firearm causing death. (§ 12022.53, subd. (d).) The trial court found Almanza suffered two prior strike convictions

1 All statutory references are to the Penal Code.

within the meaning of the three strikes law (§ 667, subds. (a)-(i)) and one prior prison term (§ 667.5, subd. (b)). The trial court sentenced Almanza to an aggregate term of 137 years to life, including 25 years to life for the firearm enhancement imposed pursuant to section 12022.53, subdivision (d). The court stayed two other firearm enhancements (§ 12022.53, subd. (b) & (c)) pursuant to section 654. We affirmed. (People v. Almanza (Sept. 12, 2017, B270903) [nonpub. opn.].) On October 11, 2017, the Governor signed Senate Bill No. 620 into law, effective January 1, 2018. The bill amends subdivision (h) of section 12022.53. The amended subdivision provides: “The 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.” (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) Our Supreme Court granted review and remanded the matter to us with directions to vacate our opinion and reconsider the cause in light of Senate Bill No. 620. (People v. Almanza (Nov. 29, 2017, S244789).) The People concede that Senate Bill No. 620, as a statute that gives the trial court discretion to impose a lower sentence, applies retroactively. (People v. Francis (1969) 71 Cal.2d 66, 75- 76.) The People argue, however, that remand to the trial court is not appropriate under the facts of this case because the record shows the trial court “would not . . . have exercised its discretion to lessen the sentence.” (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)