Franks

*14 *885 Defendant Allen Bocteemus Franks killed his girlfriend, Kimberly C. On appeal, defendant contends that his conviction for voluntary manslaughter must be overturned due to his counsel's implicit concession during closing argument that defendant killed the victim. He also challenges a $ 400 fine imposed by the trial court. In supplemental briefing, defendant asks that we remand the case to permit the trial court to consider whether to exercise its discretion and strike his prior serious felony enhancement, pursuant to Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2). We will affirm the judgment and remand the matter for a new restitution hearing.

FACTUAL AND PROCEDURAL BACKGROUND

1. The instant offense

Defendant and the victim began dating in November 2014. During their relationship, the victim was arrested for domestic violence against defendant. The victim also had obtained a restraining order against defendant. Due to another domestic violence incident between the victim and defendant in February 2015, the victim was concurrently fighting with her ex-boyfriend for custody of their daughter.

At 1:45 p.m. on March 16, 2015, the victim's mother received an "S.O.S."…

*21 I recognize that the trial judge at sentencing stated "it would not have dismissed defendant's prior serious felony even if it had discretion to do so."

Nevertheless, I have a fundamental disagreement with the majority's conclusion not to remand to the trial court. I do not believe I or any appellate court has the wisdom to determine what the trial judge would have done at a defendant's sentencing hearing if, in fact, it had been aware of the full extent of its discretion under Senate Bill No. 1393, effective January 1, 2019. "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act." ( In re Estrada (1965) 63 Cal.2d 740 , 745, 48 Cal.Rptr. 172 , 408 P.2d 948 .)

With the enactment of Senate Bill No. 1393 following defendant's sentencing, the Legislature changed the calculus a trial judge must enter when determining whether a prior conviction enhancement is appropriate. Because of this change, anything the trial judge said at the time of sentencing is tainted by the policy considerations behind…