People v. Flores CA5

Filed 4/8/22 P. v. Flores CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F078226 Plaintiff and Respondent, (Super. Ct. No. SF017860A) v.

EDUARDO FLORES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Denise M. Rudasil, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Franson, J. and Meehan, J.

This matter is back before us after a prior appeal that resulted in a remand for resentencing, for various reasons, including the enactment of Senate Bill No. 620 (2017- 2018 Reg. Sess.) (Senate Bill No. 620), which retroactively amended Penal Code section 12022.5, subdivision (c), to make the imposition of firearm enhancements under that statute discretionary.1 Appellant Eduardo Flores now seeks another remand for resentencing in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No. 1393), which took effect after his prior resentencing. Senate Bill No. 1393 amended sections 667 and 1385 to give trial courts discretion to dismiss a prior serious felony enhancement at sentencing. Flores further seeks remand for the trial court to conduct a hearing to determine whether he is eligible for mental health diversion under section 1001.36, which also took effect relatively recently. We agree with Flores that remand is necessary for the trial court to exercise its discretion, under the amendments effected by Senate Bill No. 1393, as to whether to impose serious felony enhancements as part of Flores’s sentence. Since remand is necessary for this purpose, Flores will have the opportunity on remand, to request a hearing to determine his eligibility for mental health diversion, in the trial court, in the first instance. FACTS AND PROCEEDINGS The underlying facts of this matter are fully set forth in our prior opinion and we need not repeat them here. (See People v. Flores (May 21, 2018, F071678) [nonpub. opn.].) We will, however, outline the procedural history of the case for context. Flores was convicted, by a jury, of six felonies and one misdemeanor, in the Kern County Superior Court: attempted murder, with enhancements of deliberation and premeditation and personal use of a firearm (count 1; §§ 664/187, subd. (a), 12022.5, subd. (a)); assault with a firearm (count 2; § 245, subd. (a)(2)); two counts of shooting at an inhabited dwelling house (counts 3 and 4; § 246); discharging a firearm in a grossly