Filed 2/19/19 Opinion on remand from Supreme Court

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO ROCHA,

Defendant and Appellant.

 B290779

 (Los Angeles County

 Super. Ct. No.BA409258)

APPEAL on remand from the Supreme Court. Robert J. 

Perry, Judge. Reversed and remanded with directions.

Joshua L. Siegel, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Stephanie A. Miyoshi and Allison H. Chung, 

Deputy Attorneys General, for Plaintiff and Respondent.
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We affirmed defendant Armando Rocha’s conviction for first 

degree murder in September 2017. On remand from the Supreme 

Court, we reconsidered our decision in light of then-recently enacted 

Senate Bill 620 (Stats. 2017, ch. 682, § 2), which amended Penal 

Code section 12022.53, subdivision (h) (section 12022.53(h))1to give 

the trial court discretion to strike or dismiss firearm enhancements 

imposed under section 12022.53. We affirmed defendant’s 

convictions and remanded his case to give the trial court an 

opportunity to exercise its discretion under section 12022.53(h). 

Without holding a hearing, the trial court issued a written statement

declining to strike the firearm enhancement.

In this appeal, defendant contends that he should have 

been given the opportunity to be present with counsel at a 

hearing on remand. In a supplemental brief, he further contends 

that the matter should be remanded to give the trial court an 

opportunity to exercise its discretion to dismiss his five-year prior 

serious felony enhancement under recent revisions to sections 

667 and 1385. 

We agree with defendant on both points and therefore 

reverse the order. On remand, the court shall hold a hearing to

consider whether to exercise its discretion to strike the firearm 

enhancement under section 12022.53(h) and the prior serious 

felony enhancement under sections 667 and 1385. Defendant 

shall have the right to assistance of counsel, and, unless he 

chooses to waive it, the right to be present. 

FACTUAL AND PROCEDURAL BACKGROUND

A jury found defendant guilty of first degree murder (§ 187, 

subd. (a)) and found true a gang enhancement (§ 186.22, subd. 

 

1All further statutory references are to the Penal Code 

unless otherwise indicated. 
3

(b)) and a firearm use enhancement (§ 12022.53, subds. (d) & (e)). 

The trial court found true a prior serious felony allegation (§ 667, 

subd. (a)(1)) and a strike allegation (§§ 667, subds. (b)-(j), 

1170.12). The trial court sentenced defendant to 80 years to life 

in prison, consisting of 25 years to life for the murder conviction, 

doubled due to the strike, 25 years to life for the firearm use 

enhancement, and five years for the prior serious felony. 

We affirmed defendant’s conviction. He timely filed a 

petition for review in the Supreme Court, and subsequently filed 

a supplemental petition based on the newly enacted amendment 

to section 12022.53(h), which took effect on January 1, 2018 and 

gave trial courts the discretion to strike firearm enhancements 

imposed under section 12022.53. The Supreme Court granted 

defendant’s supplemental petition and transferred the matter to 

us with directions to vacate our decision and reconsider the 

matter in light of the new law. 

On reconsideration, we again affirmed defendant’s 

conviction. We remanded the matter to the trial court “for the 

trial court to exercise its discretion under section 12022.53,

subdivision (h).” 

On remand, the court called the case “for hearing on 

remittitur.” The prosecutor was not present, nor were defendant 

or defense counsel. The court issued a written statement entitled 

“Trial Court’s Statement of Discretion Resulting in No Change to 

Defendant’s Sentence.” In that statement, the court stated that it 

“has considered the matter and declines to exercise its discretion 

and strike the 12022.53 allegation.” After summarizing the facts 

of the case and noting defendant’s strike conviction and lengthy 

sentence, the court reiterated its decision not to exercise its 

discretion by striking the enhancement. The court stated that 
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defendant’s “sentence remains unchanged,” and added, “Further 

hearing in this matter is not required.” 

Defendant timely appealed. 

DISCUSSION 

Defendant argues that he had a constitutional right to be 

present with counsel when the court exercised its discretion on 

remand. The People disagree. They argue that the proceeding 

was not a “critical stage” in the criminal prosecution, and “did not 

bear a reasonable and substantial relation to [defendant’s] full 

opportunity to defend against the charges.” 

Both positions are grounded in the state and federal 

constitutions and state statutory law. “A criminal defendant is 

guaranteed the right to the assistance of counsel by the Sixth 

Amendment to the United States constitution and article I, 

section 15 of the California Constitution.” (People v. Doolin

(2009) 45 Cal.4th 390, 417.) This constitutional right to counsel 

exists “at all critical stages of a criminal prosecution, including 

sentencing.” (Id. at p. 453; see also People v. Rodriguez (1998) 17 

Cal.4th 253, 257 (Rodriguez).) Both constitutions similarly afford 

a defendant the right to be present at all critical stages of a 

criminal prosecution. (People v. Willen (2008) 165 Cal.App.4th 

270, 286.) Likewise, section 977 requires that a defendant 

charged with a felony “shall be present . . . at the time of the 

imposition of sentence,” in addition to “all other proceedings 

unless or she shall, with leave of court, execute in open court, a 

written waiver of his or right to be personally present. . . .” (§ 977, 

subd. (b)(1); see also § 1043, subd. (a); § 1193, subd. (a).) 

Notwithstanding these provisions, a defendant does not have the 

right to be present at every hearing held in the course of the trial; 

the touchstone is whether the proceeding in question bears a 
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reasonable and substantial relationship to his or her full 

opportunity to defend against the charges. (People v. Wallace

(2008) 44 Cal.4th 1032, 1052; Rodriguez, supra, 17 Cal.4th at p. 

260.) 

We need not determine which party has the better 

constitutional argument. “Our jurisprudence directs that we 

avoid resolving constitutional questions if the issue may be 

resolved on narrower grounds.” (Loeffler v. Target Corp. (2014) 

58 Cal.4th 1081, 1102.) Here, the issues may be resolved on 

narrower statutory grounds, as evidenced in Rodriguez, supra, 17 

Cal.4th 253. 

Rodriguez presented an issue very similar to that here. 

After the Supreme Court held in People v. Superior Court

(Romero) (1996) 13 Cal.4th 497 that a trial court had the 

discretion to strike allegations of prior strike convictions, the 

question arose as to the process due to the “narrow class of 

defendants whose sentencing courts . . . believed. . . that they 

lacked discretion to strike prior felony conviction allegations 

under the ‘Three Strikes’ law (Pen. Code, §§ 667, subds. (b)-(i), 

1170.12) and whose appeals [we]re not yet final.” (Rodriguez, 

supra, 17 Cal.4th at p. 255, footnote omitted.) Specifically, the 

Rodriguez Court considered “whether, on remand, the court 

should exercise its discretion in the presence of defendant and his 

counsel.” (Ibid.)

The Rodriguez Court began and ended its analysis with 

section 1260. That provision “sets out the permissible 

dispositions of a cause on appeal” and “permits the reviewing 

court to ‘remand the cause to the trial court for such further 

proceedings as may be just under the circumstances.’”

2

 

2Section 1260 provides in full: “The court may reverse, 
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(Rodriguez, supra, 17 Cal.4th at p. 258.) The Court explained 

that the dispositive inquiry under that statute is whether it is 

“‘just under the circumstances’ to require the presence of 

defendant and his [or her] counsel on remand, at the first 

occasion on which the trial judge will consider whether to 

exercise his [or her] sentencing discretion in defendant’s favor?” 

(Ibid.) If the answer is yes, then a hearing and counsel are 

required; if the answer is no, then the court may rule without a 

defendant and counsel present.

The Rodriguez Court rejected the People’s contentions that 

answering the question affirmatively in the context of a remand

for resentencing under Romero would be “superfluous” and 

“inefficient.” (Rodriguez, supra, 17 Cal.4th at pp. 258-259.) The 

Court explained, “The evidence and arguments that might be 

presented on remand cannot justly be considered ‘superfluous’ 

because defendant and his counsel have never enjoyed a full and 

fair opportunity to marshal and present the evidence supporting

a favorable exercise of discretion.” (Id. at p. 258.) It further 

deemed “reasonable” the defendant’s observation that “‘[i]t would 

have been a waste of the court’s time for [defendant] to have 

attempted to present evidence which might convince the court to 

strike a “strike” at a time when the court believed it had no 

discretion to do so.’” (Ibid.) The Court found that it would not be 

inefficient to require hearings and counsel in Romero

 

affirm, or modify a judgment or order appealed from, or reduce 

the degree of the offense or attempted offence or the punishment 

imposed, and may set aside, affirm, or modify any or all of the 

proceedings subsequent to, or dependent upon, such judgment or 

order, and may, if proper, order a new trial and may, if proper, 

remand the cause to the trial court for such further proceedings 

as may be just under the circumstances.” 
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resentencings because trial courts were unaware of their

discretion to strike strikes until Romero was decided, and nothing 

in the record before it “exclude[d] the possibility the judge might 

have exercised his discretion in defendant’s favor.” (Id. at p. 

259.) It also emphasized that requiring a hearing and counsel 

would place defendants whose cases were remanded on the same 

footing as defendants sentenced after Romero, who have the 

opportunity to make Romero arguments at their sentencing 

hearings, at which they have the right to be present with counsel. 

“To require defendant’s presence on remand in this case merely 

affords him the same opportunity to invoke Romero . . . as is 

enjoyed by all defendants sentenced after that decision.” (Id. at 

pp. 259-260.) 

The Court then returned to section 1260: “Our power to 

order a limited remand, as mentioned, includes the authority to 

direct the trial court to conduct ‘such further proceedings as may 

be just under the circumstances.’ [Citation.] Because to permit 

the trial court to decide how to exercise its discretion under 

section 1385 without affording defendant and his counsel an 

opportunity to address the subject would be manifestly unfair, 

section 1260 provides sufficient authority to require defendant’s 

presence on remand.” (Rodriguez, supra, 17 Cal.4th at p. 260.) 

The Court thus located the right to counsel and presence in 

section 1260, not the state or federal constitution. (See ibid.)

Rodriguez is indistinguishable from the present case. 

Defendant is within a “narrow class of defendants whose 

sentencing courts . . . believed . . . they lacked discretion to 

strike” section 12022.53 firearm enhancements and “whose 

appeals are not yet final.” (Rodriguez, supra, 17 Cal.4th at p. 

255.) Unlike similarly situated defendants sentenced after the 
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amendments to section 12022.53(h) took effect, he did not have 

the opportunity at his sentencing hearing to argue that the 

firearm enhancement should be stricken. The amendments to 

section 12022.53(h) also rest upon section 1385, the same 

animating authority underlying Romero. Thus the court is

required to weigh similar considerations when exercising its 

discretion, including the rights of the defendant, the interests of 

society represented by the People, and individualized 

considerations pertaining to the defendant and his or her offenses 

and background. (Romero, supra, 13 Cal.4th at p. 531.) 

Defendant and his counsel, as well as the People, are likely to 

have information on these factors that may guide the court in its 

exercise of discretion. 

The Rodriguez Court held that it was “manifestly unfair” to 

permit the trial court to decide how to exercise its post-Romero

discretion without input from defendants and their counsel. We 

arrive at the same conclusion and hold that it is “manifestly 

unfair” to permit the trial court to decide how to exercise its new 

discretion under section 12022.53(h) without affording defendant 

and his counsel the opportunity to make an argument if they so 

desire. 

The Rodriguez Court eliminated the unfairness by 

remanding the matter to the trial court for “a hearing in the 

presence of defendant, his counsel, and the People to determine 

whether to dismiss one or more prior felony conviction findings 

pursuant to section 1385.” (Rodriguez, supra, 17 Cal.4th at p. 

260.) It did not consider whether the error should be reviewed 

under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) 

or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See 

generally id.) Defendant argues that reversal and remand is 
9

necessary under any standard, while the People assert that the 

stringent Chapman standard applies, but that reversal is not 

required because any error was harmless beyond a reasonable 

doubt. 

We follow the Rodriguez Court and conclude that remand is 

necessary. Even under the Watson standard, which applies to 

errors of state law, reversal is required if it is reasonably 

probable that the defendant would have obtained a more 

favorable result absent the error. (Watson, supra, 46 Cal.2d at p. 

836.) That standard is met here: it is reasonably probable that 

input from defendant and his counsel would lead to a more 

favorable exercise of the court’s discretion. As defendant points 

out in his opening brief, he was not given the opportunity “to 

emphasize mitigating evidence that weighed in favor of leniency.” 

Indeed, the trial court rested its decision primarily on the facts of 

the underlying crime and did not consider other factors defendant 

and his counsel may have been able to bring to its attention. 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.

Defendant argues that such a hearing should also include 

an opportunity for the trial court to exercise its discretion under 

sections 667 and 1385, which were recently amended by Senate 

Bill 1393 (Stats. 2018, ch. 1013) to give the trial court discretion 

to strike or dismiss five-year prior conviction enhancements. The 

People concede that the new law applies to defendant “[b]ecause 

Senate Bill 1393 went into effect and [defendant’s] judgment is 

not yet final.” They contend, however, that “review of the claim 

is barred because it is beyond the scope of the limited remand” we 

previously ordered in this case, and is “unwarranted” because the 
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trial court’s refusal to exercise its discretion under section 

12022.53(h) in defendant’s favor demonstrates that it would not 

strike the prior conviction enhancement. 

We agree with defendant that the trial court should 

consider whether to strike the prior conviction enhancement at 

the remand hearing. As the People concede, the law applies to 

defendant. (See People v. Garcia (2018) 28 Cal.App.5th 961, 972-

973.) The trial court’s order sheds no light on how it might rule 

on this issue, and neither the People nor defendant had an 

opportunity to present arguments relating to the amended 

provisions. The scope of our previous remand does not restrict 

our authority under section 1260 to remand for proceedings on 

this newly enacted law. In the interest of judicial economy, 

defendant should be permitted to raise the issue at the remand

hearing. We express no opinion as to how the trial court should 

exercise its discretion on either enhancement. 

DISPOSITION

The order is reversed. The case is remanded with 

directions to the trial court to decide, at a hearing at which 

defendant has the right to be present with counsel, whether it 

will exercise its discretion to strike the firearm enhancement 

under section 12022.53(h) and/or the prior conviction 

enhancement under section 667, subdivision (a). If the court 

elects to strike either or both of the enhancements, defendant 

shall be resentenced and the abstract of judgment amended. If 

the trial court elects not to strike either enhancement, 

defendant’s original sentence shall remain in effect.
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CERTIFIED FOR PUBLICATION

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.