New Discretion to Strike Firearms Enhancements

Effective January 1, 2018, SB 620 restored a trial court's discretion to strike the punishment for a gun use enhancement. The cases have uniformly held that the new law retroactively applies to cases that are not final on appeal. (People v. Valenzuela (2018) 23 Cal.App.5th 82, 87-88; People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091.)

the Sixth District's brand new opinion in People v. Baldivia (Nov. 5, 2018, H044842) 2018 Cal.App. Lexis 1007 directly bears on both SB 620 and SB 1393. In Baldivia, the defendant entered a top and bottom plea bargain for a sentence of 17 years, 4 months. Without objection by the Attorney General, the court held that the SB 620 issue was cognizable on appeal notwithstanding the absence of a certificate of probable cause. The court reversed the judgment with directions for the trial court to exercise its discretion as to whether the punishment for the gun use enhancement should be stricken. In so holding, the court relied on People v. Hurlic (2018) 25 Cal.App.5th 50 where the same result was reached.

Baldivia and Hurlic are significant since they allow an appellant to challenge a sentence achieved by both guilty plea and plea bargain. In addition, the remedies provided in the two cases precluded any possible increase in the sentences on remand. Rather, the trial courts were to either impose the same sentence or a lesser one.

As always, please consult with your SDAP buddy if you should have any questions regarding the new statutes.

(November 7, 2018)

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