Filed 12/1/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

GINO CERVANTES,

Defendant and Appellant.

 B308616

 (Los Angeles County

 Super. Ct. No. LA083959)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Thomas Rubinson, Judge. Affirmed.

Maggie Shrout, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael R. Johnsen and David E. Madeo, 

Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________
2

Gino Cervantes appeals from a decision of the trial court 

not to strike a firearm enhancement pursuant to our limited 

remand based on the retroactive application of Senate Bill 

No. 620 (SB 620) (2017–2018 Reg. Sess.).

1 Appellant claims the 

trial court “failed to exercise its informed discretion in not 

reconsidering Mr. Cervantes’s entire sentence and in not 

considering the triad of possible terms for the Penal Code section 

12022.5, subdivision (a) firearm enhancement.”2 We affirm.

FACTS AND PROCEDURAL HISTORY

The Incidents and the Jury Trial 

Appellant was charged in a six count information stemming 

from two separate shooting incidents that occurred about six 

months apart.

3 In both incidents, appellant’s motive for the 

shooting appeared to be over the victims’ alleged romantic 

pursuit of a woman appellant had dated. 

The jury ultimately convicted appellant for three of the 

charged counts and acquitted on the rest. He was convicted for 

assault with a semi-automatic firearm (§ 245, subd. (b) on count 

2), possession of a firearm by a felon (§ 29800, subd. (a)(1) on 

count 4), and assault with a firearm (§ 245, subd. (a)(2) on count 

5)—along with true findings on special enhancements for 

personal use of a firearm (§ 12022.5, subd. (a) attached to counts 

1 SB 620 applies retroactively to convictions that are not 

final. (People v. K.P. (2018) 30 Cal.App.5th 331, 339.)

2 All undesignated statutory references are to the Penal 

Code.

3 We abbreviate the facts concerning appellant’s crimes as 

they are not pertinent to this appeal.
3

2 and 5) and personal infliction of great bodily injury (§ 12022.7, 

subd. (a) on counts 2 and 5). The jury acquitted appellant on 

willful, deliberate, premeditated attempted murder (§§ 664/187, 

subd. (a) on count 1), and assault with a stun gun or taser 

(§ 244.5 subd. (b) on counts 3 and 6). The appellant admitted his 

strike prior. 

The trial court sentenced appellant to an aggregate term of 

29 years and four months, including an imposition of 10 years for 

the gun enhancement on count 2. 

Initial Appeal

We filed our unpublished opinion on October 29, 2018. 

(People v. Cervantes (Oct. 29, 2018, B283528) [nonpub. opn.].) 

Appellant raised three major contentions: (1) juror misconduct, 

(2) ineffective assistance of trial counsel, and (3) retroactive 

application of SB 620. We rejected the first two contentions but 

found merit on the SB 620 claim. We noted that on remand, “the 

trial court may strike the firearm enhancements or strike only 

the punishment for the enhancements.” We instructed in the 

disposition that “[t]he matter is remanded to allow the trial court 

to exercise its discretion to strike the firearm enhancements 

under section 12022.5, subdivision (c).”

Hearing on the Limited Remand

After our remittitur issued, the trial court took up the 

limited remand on October 7, 2020. Several weeks before the 

hearing, appellant’s trial counsel filed a motion asking the trial 

court to strike the firearm enhancement. The motion did not 
4

request the trial court to impose a lesser triad on the section 

12022.5, subdivision (a) enhancement.4 

At the hearing, the trial court denied the request to strike 

the enhancement by ruling as follows:

“All right. I am not going to exercise my discretion to strike 

the firearm allegation in this matter. Mr. Cervantes chose 

to initiate gun-related violence against multiple people in 

this case resulting in more than one person getting shot. 

At least one with quite serious medical consequences. You

know, this should have not happened. He should have 

never been there. He should have thought about clearly in 

advance in approaching these people and knew where they 

were going to be. His record is lengthy and serious. He 

presents a very clear danger to our community by his 

willingness to lash out with the use of firearms when he’s

unhappy about something or not getting what he wants or 

someone disrespects him, or whatever the terminology you 

want to use, and these statutes were enacted by our 

Legislature for purposes of insuring longer sentences when 

people use guns than when they don’t use guns to try to 

dissuade the use of firearms in the commission of crimes in 

our community. And while I’m aware, I do have the 

discretion to strike it in a given case, and I would in a given

case, and I just don’t think it’s appropriate to do so in this 

case.” 

4 The triad for the firearm enhancement is provided in 

section 12022.5, subdivision (a), which states, “Except as 

provided in subdivision (b), any person who personally uses a 

firearm in the commission of a felony or attempted felony shall be 

punished by an additional and consecutive term of imprisonment 

in the state prison for 3, 4, or 10 years, unless use of a firearm is 

an element of that offense.”
5

Appellant’s trial counsel also asked the trial court to 

reconsider dismissing appellant’s strike prior pursuant to section 

1385, subdivision (a). The trial court noted:

“I do see that here. You are quite correct Mr. Darden, on 

May 24th, which was the day of the sentencing, the motion

to strike the strike was filed and denied. So I have already 

made the ruling on that motion and my ruling on it, even if 

I have discretion at this point, which I’m not sure I do, 

I would not be inclined to strike the strike at this point.”

DISCUSSION

Appellant contends the trial court “failed to exercise its 

informed discretion” in not reconsidering his entire sentence. 

He also contends the trial court erred by not considering the triad 

of possible terms under section 12022.5, subdivision (a). We find 

no error and affirm.

I. Legal Principles

SB 620 took effect on January 1, 2018. (Stats. 2017, 

ch. 682.) Thereafter, under what criminal law practitioners call 

the Estrada rule,5 various courts of appeal have held SB 620 

applies retroactively to all judgments not yet final. (See People v. 

Woods (2018) 19 Cal.App.5th 1080, 1090–1091; People v. Robbins

(2018) 19 Cal.App.5th 660, 678–679; People v. McDaniels (2018) 

22 Cal.App.5th 420, 423; People v. Billingsley (2018) 22 

Cal.App.5th 1076, 1080.) Our limited remand to the trial court 

was based on the same Estrada rule. 

5 The Estrada rule states, “If the amendatory statute 

lessening punishment becomes effective prior to the date the 

judgment of conviction becomes final then, in our opinion, it, and 

not the old statute in effect when the prohibited act was 

committed, applies.” (In re Estrada (1965) 63 Cal.2d 740, 744.)
6

Remand, however, is not required in every instance where 

a trial court imposed a firearm enhancement before SB 620’s 

effective date. If “ ‘the record shows that the trial court would not 

have exercised its discretion even if it believed it could do so, then 

remand would be an idle act and is not required.’ ” (People v. 

Gamble (2008) 164 Cal.App.4th 891, 901.) 

For ease of reference, we refer to this as the “No Remand” 

rule. Under this rule, appellate courts look to the record to 

determine whether it contains “clear indication that the trial 

court will not exercise its discretion to reduce [appellant’s] 

sentence.” (People v. McDaniels, supra, 22 Cal.App.5th at p. 423.)

The No Remand rule is premised on the ground the trial 

court has committed no legal error—for, if the trial court had 

committed error, remand would be necessary to correct the error 

and conduct resentencing. Instead, the remand is triggered by a 

change in either statutory or decisional law that grants authority 

to trial courts to strike or dismiss a sentencing enhancement 

where none existed prior to the effective date of such change.6

In this scenario, remand is necessary only where the record is 

6 The No Remand rule dates back at least to the Three 

Strikes law when trial courts struggled over whether they had 

the discretion to dismiss strike prior allegations under section 

1385. After People v. Superior Court (Romero) (1996) 13 Cal.4th 

497 clarified the application of section 1385 to dismiss strike 

priors, courts of appeal were faced with the question whether or 

not to remand judgments that were not yet final for consideration 

of this power to dismiss. In this context, People v. Gutierrez

(1996) 48 Cal.App.4th 1894, held “no purpose would be served in 

remanding for reconsideration” where a trial court “indicated 

that it would not . . . have exercised its discretion to lessen the 

sentence.” (Id. at p. 1896.)
7

unclear whether the trial court would not use the discretion to 

sentence the defendant differently. 

II. Analysis

Appellant asks us to remand this case for another 

resentencing hearing because the trial court failed to exercise its 

full sentencing discretion. We disagree.

Appellant’s arguments are based on what he coins the “full 

sentencing rule”: that when an appellate court remands a case 

for resentencing, the trial court may consider the entire sentence. 

He cites People v. Garner (2016) 244 Cal.App.4th 1113, 1118 

(Garner), and People v. Hubbard (2018) 27 Cal.App.5th 9, 13 

(Hubbard) for this rule. Neither of these cases dealt with SB 620. 

Both Garner and Hubbard concerned resentencing under 

Proposition 36, which amended the application of California’s 

Three Strikes law. Under section 1170.126, inmates serving a 

“third strike” sentence, if he or she qualifies, may petition the 

trial court for a recall of sentence, and obtain resentencing to a 

“second strike” sentence. (See § 1170.126, subd. (e).)

We did not remand this case to recall and resentence as 

under section 1170.126, subdivision (b), nor did we remand 

because the trial court committed legal error in sentencing. 

Instead, our disposition was clear—“The matter is remanded to 

allow the trial court to exercise its discretion to strike the firearm 

enhancements under section 12022.5, subdivision (c).” We did 

not vacate the sentence in any way—resentencing was ultimately 

not required. 

“The issues a trial court may address in remand 

proceedings are therefore limited to those specified in the 

reviewing court’s directions, and if the reviewing court does not 

direct the trial court to take a particular action or make a 
8

particular determination, the trial court is not authorized to do 

so. [Citations.]” (Ayrad v. Sprint Spectrum, L.P. (2012) 210 

Cal.App.4th 851, 859–860.)

Based on our remittitur, the trial court properly focused on 

whether or not to dismiss the firearm enhancement as directed in 

the remittitur. Indeed, the motion appellant filed for the remand 

proceeding asked for just that—for the trial court to exercise its 

discretion to dismiss the firearm enhancement. In ultimately 

denying appellant’s specific request to strike the firearm 

enhancement, the trial court considered four separate grounds for 

denying the request: (1) the serious nature of appellant’s two 

separate acts of violence against two different victims, 

(2) appellant’s numerous and lengthy criminal history, 

(3) appellant’s potential danger to the community, and 

(4) appellant’s failure to consider the consequences of his actions. 

The trial court clearly and thoughtfully considered the request to 

dismiss the firearm enhancements.

Despite this, appellant contends the trial court 

misunderstood its authority to consider the full sentence when 

appellant’s trial counsel asked the trial court to dismiss the 

strike prior. He also claims the trial court failed to recognize its

ability to impose the lesser triad for section 12022.5, subdivision

(a).7 This, however, puts the cart before the horse. Again, we did 

not vacate any portion of the sentence. Instead, we directed the 

trial court to consider its discretion to dismiss the firearm 

enhancement under section 12022.5, subdivision (c)—not whether 

7 The trial court imposed the upper term of 10 years on 

count 2. The triad under section 12022.5, subdivision (a) is 3, 4, 

or 10 years in prison.
9

or not to dismiss the strike priors in the first instance. Also, the 

trial court’s imposition of the upper term for the firearm 

enhancement was not challenged in the initial appeal as 

unauthorized or excessive. We did not remand the case because 

the trial court erroneously imposed the upper term. As such, the 

trial court’s action in the remand proceeding, based on our 

remittitur, was proper. As such, we find no error.

DISPOSITION

The judgment is affirmed. 

CERTIFIED FOR PUBLICATION

OHTA, J.*

We concur:

 GRIMES, Acting P. J.

WILEY, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.