Filed 12/20/19 P. v. Flores CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN MANUEL FLORES,

Defendant and Appellant.

G056669

(Super. Ct. No. 14CF2362)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Gary S. Paer, Judge. Reversed and remanded with directions.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of, inter alia, two counts of attempted premeditated murder with attendant enhancements for discharging a firearm pursuant to Penal Code section 12022.53, subdivision (c). The trial court sentenced him to prison for 35 years to life, which included 20 years for one of those enhancements.

We affirmed the judgment on appeal. (People v. Flores (May 16, 2018, G053925) [nonpub. opn.].) However, we also determined appellant was retroactively entitled to the benefit of an amendment to Penal Code section 12022.53 that took effect while his appeal was pending. (Id. at pp. 9-11.) The amendment gives trial courts the discretion to strike firearm-discharge enhancements in the interest of justice. (Id. at p. 10.) Therefore, we remanded the matter to permit the trial court to decide whether it wished to exercise that discretion in this case. (Id. at p. 11.)

On remand, the trial court held a hearing with counsel present, but not appellant. Defense counsel argued appellant had the right to attend the hearing and requested a transfer order to secure his presence. Believing appellant’s presence was unnecessary, the court denied that request. It also declined to exercise its discretion to strike appellant’s firearm-discharge enhancements.

Appellant contends it was error for the court to rule on the enhancement issue in his absence, and respondent agrees. As respondent concedes, appellant may have information that would assist his attorney in convincing the court to exercise its discretion in his favor. Although the court has signaled its intention not to strike the enhancements, “A remand is necessary to ensure proceedings that are just under the circumstances, namely, a hearing at which both the People and defendant may be present and advocate for their positions.” (People v. Rocha (2019) 32 Cal.App.5th 352, 360 [defendant has right to be personally present at remand hearing involving decision whether to strike firearm enhancements under Penal Code section 12022.53]; see also People v. Rodriguez (1998) 17 Cal.4th 253, 259-260 [defendant has right to be personally present at remand hearing involving decision whether to strike a prior strike conviction].) Accordingly, we remand for such a hearing.

DISPOSITION

The order is reversed, and the case is remanded for the trial court to decide, at a hearing at which appellant has the right to be present, whether it wants to exercise its discretion to strike one or both of the firearm-discharge enhancements. If the court elects to do so, appellant shall be resentenced and the abstract of judgment amended. If the court elects not to do so, appellant’s original sentence will remain in effect.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

DUNNING, J.*

*Retired Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.