Filed 3/15/18; Opinion on remand from Supreme Court
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


THE PEOPLE,                                  2d Crim. No. B270903
                                          (Super. Ct. No. BA425421-02)
     Plaintiff and Respondent,                (Los Angeles County)

v.                                          OPINION FOLLOWING
                                           ORDER VACATING PRIOR
CHRISTIAN ALMANZA,                               OPINION

     Defendant and Appellant.


       When the retroactive application of a statute gives a trial
court discretion to reconsider imposing a lower sentence than one
previously imposed, it is customary for an appellate court to
remand the case to the trial court. But not always.
       A jury convicted Christian Almanza of first degree murder
(Pen. Code, §§ 187, subd. (a), 189)1 and assault with a firearm
(§ 245, subd. (b)). The jury found gang enhancement allegations
true on both counts. (§ 186.22, subd. (b)(1)(C).) On the murder
charge, the jury found a principal personally and intentionally
discharged a firearm causing death. (§ 12022.53, subd. (d).) The
trial court found Almanza suffered two prior strike convictions


        1   All statutory references are to the Penal Code.
within the meaning of the three strikes law (§ 667, subds. (a)-(i))
and one prior prison term (§ 667.5, subd. (b)).
       The trial court sentenced Almanza to an aggregate term of
137 years to life, including 25 years to life for the firearm
enhancement imposed pursuant to section 12022.53, subdivision
(d). The court stayed two other firearm enhancements
(§ 12022.53, subd. (b) & (c)) pursuant to section 654. We
affirmed. (People v. Almanza (Sept. 12, 2017, B270903) [nonpub.
opn.].)
       On October 11, 2017, the Governor signed Senate Bill No.
620 into law, effective January 1, 2018. The bill amends
subdivision (h) of section 12022.53. The amended subdivision
provides: “The court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.
The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.”
(§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)
       Our Supreme Court granted review and remanded the
matter to us with directions to vacate our opinion and reconsider
the cause in light of Senate Bill No. 620. (People v. Almanza
(Nov. 29, 2017, S244789).)
       The People concede that Senate Bill No. 620, as a statute
that gives the trial court discretion to impose a lower sentence,
applies retroactively. (People v. Francis (1969) 71 Cal.2d 66, 75-
76.) The People argue, however, that remand to the trial court is
not appropriate under the facts of this case because the record
shows the trial court “would not . . . have exercised its discretion
to lessen the sentence.” (People v. Gutierrez (1996) 48
Cal.App.4th 1894, 1896.)




                                 2
       The People point out that the trial court could have
imposed concurrent sentences for murder and assault with a
firearm. Instead, the court imposed consecutive sentences. Thus,
the People conclude the court exhibited no desire to be lenient
with Almanza.
       Almanza argues that it would not be a per se abuse of
discretion to strike the firearm enhancements. But the question
is not whether it would be a per se abuse of discretion. Instead,
the question is whether there is any reasonable probability the
trial court would exercise its discretion to strike the
enhancements so as to justify remanding the matter.
       Almanza cites the concurring opinion of Mosk, J. in People
v. Deloza (1998) 18 Cal.4th 585, 601. The concurring opinion
states that a sentence of 111 years is shocking and absurd and
serves no rational legislative purpose. Justice Mosk
recommended the Legislature convert multicentury sentences to
life or even life without the possibility of parole. (Id. at p. 602.)
       Even if the trial court here were to strike all of the firearm
enhancements, it would reduce Almanza’s minimum term from
137 years to 112 years. A 137-year minimum term is no more or
less absurd than a 112-year minimum term. Justice Mosk makes
a cogent point. (People v. Deloza (1998) 18 Cal.4th 585, 600-602.)
Nevertheless, Deloza does not hold that century-plus sentences
are unconstitutional.
       We agree with the People. There is no reasonable
probability the trial court would exercise its discretion in favor of
Almanza. A jury convicted Almanza of a cold-blooded,
premeditated murder committed for the benefit of a criminal
street gang. His record includes two prior strikes and a prior
prison term. If the trial court were inclined to be lenient, it




                                 3
would have made the sentence for assault concurrent with the
sentence for murder.
      The judgment is affirmed.
      CERTIFIED FOR PUBLICATION.




                                   GILBERT, P. J.
We concur:




             YEGAN, J.




             TANGEMAN, J.




                               4
                   William N. Sterling, Judge

             Superior Court County of Los Angeles

                ______________________________



      Susan K. Shaler, 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, Senior Assistant
Attorney General, Scott A. Taryle, Supervising Deputy Attorney
General, Zee Rodriguez, Acting Supervising Deputy Attorney
General, Timothy L. O'Hair, Deputy Attorney General, for
Plaintiff and Respondent.




                               5
