Filed 9/2/20 P. v. Tuggle CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MARKYSE TUGGLE,

Defendant and Appellant.

 B301311

 (Los Angeles County

 Super. Ct. No. BA445259)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Michael Schultz, Judge. Reversed and 

remanded with directions.

Cindy Brines, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Susan 

Sullivan Pithey, Assistant Attorneys General, Scott A. Taryle and 

Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Defendant and appellant Markyse Tuggle (defendant) 

appeals from the judgment entered on remand after the 

sentencing court declined to exercise discretion to strike the fiveyear recidivist enhancement under the 2019 amendments to 

Penal Code sections 667 and 1385.1 We reverse the judgment 

and order the court to schedule a hearing at which defendant 

may be present with counsel.

BACKGROUND

In 2017 defendant was convicted of assault with a firearm 

and attempted kidnapping. The trial court sentenced defendant 

to a total of 14 years in prison, comprised of four years for the 

assault with a firearm, doubled as a second strike, plus one fiveyear recidivist enhancement and a one-year firearm 

enhancement imposed under section 12022, subdivision (a)(1). 

The court imposed the upper term of four years as to the 

attempted kidnapping, doubled the term as a second strike, and 

stayed the sentence pursuant to section 654. Defendant 

appealed, and in a nonpublished opinion we struck the firearm 

enhancement and modified custody credits, but otherwise 

affirmed the judgment. (See People v. Tuggle (March 27, 2019, 

B282497).)

Effective January 1, 2019, sections 667, subdivision (a)(1), 

and 1385, subdivision (b), were amended to give trial courts 

discretion to strike sentencing enhancements for prior serious 

felony convictions in the interest of justice. This discretion was 

not available when defendant was sentenced. (See Stats. 2018, 

ch. 1013, §§ 1 & 2.) The amendments applied retroactively to all 

cases in which judgment was not yet final on January 1, 2019. 

1 All further statutory references are to the Penal Code, 

unless otherwise indicated.
3

(People v. Garcia (2018) 28 Cal.App.5th 961, 973.) As defendant’s 

judgment was not final when his appeal was before this court, we

remanded the matter to the trial court to exercise its discretion 

whether or not to strike the five-year enhancement imposed 

under section 667, subdivision (a)(1).

On July 18, 2019, following the issuance of the remittitur, 

the trial court called the matter for “judicial action” in the 

absence of defendant and counsel. The court issued a minute 

order stating as relevant here that “the court declines to exercise 

its discretion in defendant’s favor and declines to strike or 

dismiss the . . . five year enhancement imposed under Penal Code 

section 667, subdivision (a) . . . against defendant Tuggle.”

Defendant filed a timely notice of appeal from the judgment.

Defendant contends that the trial court erred in making its 

ruling without affording defendant a hearing at which he was 

given the opportunity to be present with counsel and to advocate 

for his position. Respondent agrees that “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.” (People v. 

Rodriguez (1998) 17 Cal.4th 253, 260 [upon remand to consider 

striking a prior conviction].) The same considerations of fairness 

apply on remand to the sentencing court to determine whether to 

exercise newly granted discretion to strike or dismiss an 

enhancement. (People v. Rocha (2019) 32 Cal.App.5th 352, 356-

359.) A defendant whose matter has been remanded for 

retroactive application of such amended statutes as sections 

12022.53 and 1385, as well as section 667, must be given the 

same opportunity to be present with counsel as those who were 

sentenced under the new law in the first instance. (Rocha, at pp. 
4

358-360.) We thus remand for the sentencing court to hold a 

hearing at which defendant may be present with counsel to 

advocate for his position.2

DISPOSITION

The judgment is reversed and 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 and strike the five-year enhancement of section 667, 

subdivision (a). If the court decides to strike the enhancement, 

defendant shall be resentenced and the abstract of judgment 

amended accordingly. If the court decides not to strike the 

enhancement, the original sentence shall remain in effect.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

LUI

__________________________, J.

ASHMANN-GERST

2 Defendant may waive his appearance. (See People v. 

Rocha, supra, 32 Cal.App.5th at p. 357; § 977, subd. (b)(1); 

§ 1193, subd. (a).)