Lopez

I

On October 27, 1992, Diandre Lamont Lopez pleaded guilty to one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b)), and admitted the gun use enhancement allegation (§ 12022.5, subd. (a)) was true. Pursuant to an indicated sentence, he was sentenced to the midterm of three years on count one and the enhancement was stricken.

The district attorney claims the trial court erred in striking the gun use enhancement. In light of our Supreme Court’s decision in People v. Thomas (1992) 4 Cal.4th 206 [ 14 Cal.Rptr.2d 174 , 841 P.2d 159 ], we agree. However, our inquiry does not end there. Lopez claims a retroactive application of Thomas would “violate respondent’s right to the benefit of his bargain. . . .”

II

The district attorney correctly argues Thomas denies a trial court discretion to strike a gun use enhancement either under section 1170.1, subdivision (h), or under section 1385.

In 1989, the Legislature amended section 1170.1, subdivision (h) by deleting section 12022.5 from the list of enhancements which a sentencing judge could strike in an exercise of his or her discretion. In determining the effect of this amendment, the Thomas court examined the…