Arredondo

*383 *495 The jury convicted both defendants in this case of first degree murder and found the special circumstances that the murder was committed during the course of a robbery and during the course of a kidnapping. The jury found that one of the defendants, Angelo Andrew Arredondo, had used a firearm in committing the murder. The jury found both defendants committed the murder for the benefit of a criminal street gang.

As we explain more fully below, on this direct appeal we are not in a position to find that Arredondo's counsel was ineffective in conceding that his *496 client was guilty of felony murder, but that the jury should nonetheless reject the robbery special circumstance allegation. In theory, an attorney may reasonably concede the impact of overwhelming evidence in an effort to establish his or her own credibility and use that credibility as a means of diminishing the scope of his or her client's responsibility. By way of collateral proceedings, in which the attorney has an opportunity to fully defend his choice, this issue can be definitively resolved.

We nonetheless reverse in part the defendants' convictions. In his opening argument to the jury as well as in his…

I concur in both this panel's opinion and the result we have reached. I nonetheless write separately to set forth my views with respect to retrospective application of Penal

Code 1 section 12022.53, subdivision (h), and, in particular, my strongly held opinion that, guided by the Supreme Court in People v. Superior Court ( Lara ) (2018) 4 Cal.5th 299 , 308, footnote 5, 228 Cal.Rptr.3d 394 , 410 P.3d 22 ( Lara ), we should abstain from any further reliance on a presumption of retroactivity when the legislature adopts a measure which lessens or potentially lessens the punishment for a crime.

Relying on In re Estrada (1965) 63 Cal.2d 740 , 747-748, 48 Cal.Rptr. 172 , 408 P.2d 948 ( Estrada ) and People v. Brown (2012) 54 Cal.4th 314 , 324, 142 Cal.Rptr.3d 824 , 278 P.3d 1182 ( Brown ), at least two recent cases have concluded that in all nonfinal cases, in the absence of evidence to the contrary, courts must presume the Legislature intends a statutory amendment reducing criminal punishment apply retroactively. 2 There is no such presumption, either in the Penal Code or in the governing law provided to us by the Supreme Court. Indeed, with respect to penal statutes, even those…