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,                                 B290779

       Plaintiff and Respondent,            (Los Angeles County
                                            Super. Ct. No.BA409258)
       v.

ARMANDO ROCHA,

       Defendant and Appellant.



      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.
       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))1 to 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.

      1Allfurther statutory references are to the Penal Code
unless otherwise indicated.


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(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




                                8
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.




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