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Remand to Exercise Discretion to Strike Firearm Enhancement

People v. Cervantes Docket: B308616 (Second Appellate District), Opinion Date: December 1, 2021. Cervantes was charged in connection with separate shooting incidents, several months apart. In both incidents, his motive appeared to be the victims’ alleged romantic pursuit of a woman Cervantes had dated. He was convicted of assault with a semi-automatic firearm, possession of a firearm by a felon, and assault with a firearm, along with true findings on special enhancements for the personal use of a firearm and personal infliction of great bodily injury. He was acquitted on willful, deliberate, premeditated attempted murder and assault with a stun gun or taser and admitted his strike prior. The court imposed a sentence of 352 months, including 10 years for the gun enhancement. The court of appeal rejected claims of juror misconduct and ineffective assistance of counsel but remanded a claim under SB 620, noting “the trial court may strike the firearm enhancements or strike only the punishment for the enhancements.” The court of appeal affirmed the denial of Cervantes’s motion to strike the firearms enhancement. The trial court was not required to exercise its full sentencing discretion. The case was not remanded to recall and resentence as under section 1170.126(b), nor because the court committed legal error in sentencing. The matter was remanded to allow the trial court to exercise its discretion to strike the firearm enhancements under Penal Code 12022.5(c).” #sb620 #strikefirearmenhancement #remand


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