32 Cal.App.5th 352
Cal. Ct. App.2019Background
- Armando Rocha was convicted of first degree murder with gang and firearm enhancements; court found a prior serious felony and strike, and sentenced him to 80 years to life.
- After conviction, Senate Bill 620 amended Penal Code §12022.53(h) to permit the trial court discretion to strike firearm enhancements; Rocha sought relief based on that change and the Supreme Court remanded the case to the Court of Appeal for reconsideration.
- The Court of Appeal affirmed but remanded to the trial court to exercise discretion under §12022.53(h).
- On remand the trial court issued a written decision declining to strike the firearm enhancement without a hearing and without defendant or counsel present.
- Rocha appealed, arguing he had a right to be present with counsel at a remand hearing; he later asked the court to also allow the trial court to consider striking a five-year prior serious felony enhancement under Senate Bill 1393 (amending §§667 and 1385).
- The Court of Appeal reversed and remanded, directing the trial court to hold a hearing at which Rocha has the right to be present with counsel to consider striking the firearm enhancement and the prior serious felony enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant had a right to be present with counsel when trial court exercised discretion on remand to decide whether to strike §12022.53 enhancement | Proceeding was not a "critical stage" and court could decide without hearing or defendant present | Remand required a hearing with defendant and counsel present so defendant can present mitigating evidence and argue for striking the enhancement | Court held remand hearing must be held with defendant and counsel present; ruling grounded in Cal. Penal Code §1260 authority and Rodriguez precedent |
| Whether remand should also permit consideration of striking the five-year prior serious felony enhancement under amended §§667/1385 (SB 1393) | Scope of prior limited remand did not authorize reconsideration; trial court’s prior refusal to strike firearm enhancement shows it wouldn’t strike prior enhancement | New law applies and defendant is entitled to have trial court consider striking the prior enhancement at the remand hearing | Court held trial court must also consider the prior serious felony enhancement at the remand hearing; remanded for hearing and possible resentencing if enhancements are struck |
Key Cases Cited
- People v. Rodriguez, 17 Cal.4th 253 (discusses remand procedures and requirement of defendant presence under §1260)
- People v. Superior Court (Romero), 13 Cal.4th 497 (established trial court discretion to strike strike priors under §1385)
- People v. Doolin, 45 Cal.4th 390 (right to counsel at critical stages including sentencing)
- Chapman v. California, 386 U.S. 18 (standard for constitutional harmless error)
- People v. Watson, 46 Cal.2d 818 (standard for harmless error of state law)