Opinion
G055799
10-26-2018
THE PEOPLE, Plaintiff and Respondent, v. LYNN AI QUACH, Defendant and Appellant.
Kevin D. Sheehy, 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, Senior Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10WF0524) OPINION Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed in part, reversed in part. Kevin D. Sheehy, 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, Senior Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
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Before, Aronson, Acting P.J., Ikola, J., and Thompson, J.
A jury convicted defendant Lynn Ai Quach of murder. (Pen. Code, § 187.) The jury also found true a firearm enhancement pursuant to section 12022.53, subdivisions (c) and (e)(1). On December 22, 2017, the trial court sentenced defendant to 25 years to life, plus a consecutive sentence of 20 years for the firearm enhancement.
All further statutory references are to the Penal Code. --------
Defendant raises a single argument on appeal: this matter should be remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancement. Pursuant to recent amendments, which became effective January 1, 2018 (i.e., after sentencing in this case), trial courts now have discretion to strike or dismiss such enhancements. (§ 12022.53, subd. (h) ["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"]; Stats. 2017, ch. 682, § 2.) The Attorney General concedes that the amendment of section 12022.53 should be applied retroactively and this matter should be remanded for resentencing.
We agree with the parties and, in doing so, follow recent case law. (People v. Vela (2018) 21 Cal.App.5th 1099, 1113-1114; People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
DISPOSITION
The trial court's imposition of a firearm enhancement sentence under section 12022.53 is reversed and the matter is remanded for further proceedings. On remand, the court is directed to conduct a hearing at which it exercises its discretion under section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.