Can a court exercise discretion to lessen punishment under section 12022.5, subdivision (b)(1)(C) of the California Criminal Code?

discretion to lessen punishment. (See People v. Brown (2012) 54 Cal.4th 314, 324; People v. Francis (1969) 71 Cal.2d 66, 75-76.) Respondent has also conceded that the trial court erred in imposing the firearm enhancement of section 12022.5, while also sentencing defendant under section 186.22, subdivision (b)(1)(C), as discussed in part II of this opinion. Respondent further suggests that this issue would be moot if we strike the firearm enhancement instead of remanding for resentencing as was suggested in the original brief. Since we have rejected the suggestion to remand for resentencing, the issue is not moot.

Nevertheless, remand is unnecessary. Remand is not required when it would be an "idle act" because "'the record shows the that trial court would not have exercised its discretion even if it believed it could do so.'" (People v. Gamble (2008) 164 Cal.App.4th 891, 901; see also Romero, supra, 13 Cal.4th at p. 530, fn. 13.) Here, the trial court sentenced defendant to the upper term of four years for the charged offense, plus the middle term of four years for the firearm enhancement, 10 years for the gang enhancement, and five years for the recidivist enhancement. Had the court wished to impose a shorter sentence, it could have imposed three years less than it did, with a low term of two years as to the charged offense and a low firearm enhancement of two years. The court expressly recognized that section 12022.5, subdivision (a), provided for a range, and thus knew that it could have chosen the low term in that range. The court found multiple aggravating factors, and no factor in mitigation.⁶ There is no reasonable probability that the

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