People v. Tuggle CA2/2

Filed 9/2/20 P. v. Tuggle CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, B301311

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA445259) v.

MARKYSE TUGGLE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael Schultz, Judge. Reversed and remanded with directions.

Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey, Assistant Attorneys General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Markyse Tuggle (defendant) appeals from the judgment entered on remand after the sentencing court declined to exercise discretion to strike the five- year recidivist enhancement under the 2019 amendments to Penal Code sections 667 and 1385.1 We reverse the judgment and order the court to schedule a hearing at which defendant may be present with counsel. BACKGROUND In 2017 defendant was convicted of assault with a firearm and attempted kidnapping. The trial court sentenced defendant to a total of 14 years in prison, comprised of four years for the assault with a firearm, doubled as a second strike, plus one five- year recidivist enhancement and a one-year firearm enhancement imposed under section 12022, subdivision (a)(1). The court imposed the upper term of four years as to the attempted kidnapping, doubled the term as a second strike, and stayed the sentence pursuant to section 654. Defendant appealed, and in a nonpublished opinion we struck the firearm enhancement and modified custody credits, but otherwise affirmed the judgment. (See People v. Tuggle (March 27, 2019, B282497).) Effective January 1, 2019, sections 667, subdivision (a)(1), and 1385, subdivision (b), were amended to give trial courts discretion to strike sentencing enhancements for prior serious felony convictions in the interest of justice. This discretion was not available when defendant was sentenced. (See Stats. 2018, ch. 1013, §§ 1 & 2.) The amendments applied retroactively to all cases in which judgment was not yet final on January 1, 2019.