People v. Brooks CA2/6

FACTS AND PROCEDURAL HISTORY

Brooks was convicted in 2016 of assault with a firearm and possession of a firearm by a felony. The trial court imposed a sentence of 16 years, 8 months, including a 1-year prior prison term enhancement under former section 667.5, subdivision (b). We affirmed the conviction, but remanded for resentencing, so the trial court could exercise its newly- established discretion to impose or strike the firearm use enhancement. (§§1385, 12022.5, subd. (a); People v. Brim, et al. (Oct. 2, 2018, B275782) [non-pub. opn.].) The trial court entered a minute order declining to strike the firearm use enhancement before the remittitur issued and outside the presence of the parties or their counsel. We remanded for resentencing at a hearing at which appellant had the right to be present with counsel. (People v. Brooks (Nov. 18, 2019, B294596) [non-pub. opn.].) At the resentencing hearing, in July 2020, the trial court again declined to strike the firearm use enhancement. It also left the prior prison term enhancement unchanged.

DISCUSSION

Effective January 1, 2020, Senate Bill No. 136 (2019- 2020 Reg. Sess.) amended section 667.5, subdivision (b) to authorize a…