Filed 9/2/20 P. v. Tuggle CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301311
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA445259)
v.
MARKYSE TUGGLE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Michael Schultz, Judge. Reversed and
remanded with directions.
Cindy Brines, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Scott A. Taryle and
Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Markyse Tuggle (defendant)
appeals from the judgment entered on remand after the
sentencing court declined to exercise discretion to strike the five-
year recidivist enhancement under the 2019 amendments to
Penal Code sections 667 and 1385.1 We reverse the judgment
and order the court to schedule a hearing at which defendant
may be present with counsel.
BACKGROUND
In 2017 defendant was convicted of assault with a firearm
and attempted kidnapping. The trial court sentenced defendant
to a total of 14 years in prison, comprised of four years for the
assault with a firearm, doubled as a second strike, plus one five-
year recidivist enhancement and a one-year firearm
enhancement imposed under section 12022, subdivision (a)(1).
The court imposed the upper term of four years as to the
attempted kidnapping, doubled the term as a second strike, and
stayed the sentence pursuant to section 654. Defendant
appealed, and in a nonpublished opinion we struck the firearm
enhancement and modified custody credits, but otherwise
affirmed the judgment. (See People v. Tuggle (March 27, 2019,
B282497).)
Effective January 1, 2019, sections 667, subdivision (a)(1),
and 1385, subdivision (b), were amended to give trial courts
discretion to strike sentencing enhancements for prior serious
felony convictions in the interest of justice. This discretion was
not available when defendant was sentenced. (See Stats. 2018,
ch. 1013, §§ 1 & 2.) The amendments applied retroactively to all
cases in which judgment was not yet final on January 1, 2019.
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2
(People v. Garcia (2018) 28 Cal.App.5th 961, 973.) As defendant’s
judgment was not final when his appeal was before this court, we
remanded the matter to the trial court to exercise its discretion
whether or not to strike the five-year enhancement imposed
under section 667, subdivision (a)(1).
On July 18, 2019, following the issuance of the remittitur,
the trial court called the matter for “judicial action” in the
absence of defendant and counsel. The court issued a minute
order stating as relevant here that “the court declines to exercise
its discretion in defendant’s favor and declines to strike or
dismiss the . . . five year enhancement imposed under Penal Code
section 667, subdivision (a) . . . against defendant Tuggle.”
Defendant filed a timely notice of appeal from the judgment.
Defendant contends that the trial court erred in making its
ruling without affording defendant a hearing at which he was
given the opportunity to be present with counsel and to advocate
for his position. Respondent agrees that “to permit the trial court
to decide how to exercise its discretion under section 1385
without affording defendant and his counsel an opportunity to
address the subject would be manifestly unfair.” (People v.
Rodriguez (1998) 17 Cal.4th 253, 260 [upon remand to consider
striking a prior conviction].) The same considerations of fairness
apply on remand to the sentencing court to determine whether to
exercise newly granted discretion to strike or dismiss an
enhancement. (People v. Rocha (2019) 32 Cal.App.5th 352, 356-
359.) A defendant whose matter has been remanded for
retroactive application of such amended statutes as sections
12022.53 and 1385, as well as section 667, must be given the
same opportunity to be present with counsel as those who were
sentenced under the new law in the first instance. (Rocha, at pp.
3
358-360.) We thus remand for the sentencing court to hold a
hearing at which defendant may be present with counsel to
advocate for his position.2
DISPOSITION
The judgment is reversed and remanded with directions to
the trial court to decide, at a hearing at which defendant has the
right to be present with counsel, whether it will exercise its
discretion and strike the five-year enhancement of section 667,
subdivision (a). If the court decides to strike the enhancement,
defendant shall be resentenced and the abstract of judgment
amended accordingly. If the court decides not to strike the
enhancement, the original sentence shall remain in effect.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
2 Defendant may waive his appearance. (See People v.
Rocha, supra, 32 Cal.App.5th at p. 357; § 977, subd. (b)(1);
§ 1193, subd. (a).)
4