Opinion
2d Crim. No. B299981
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. JAIME AMEZCUA, Defendant and Appellant.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2017043118)
(Ventura County)
Jaime Amezcua appeals a judgment entered following his guilty plea to two counts of driving under the influence of alcohol including prior convictions, with admissions to a 0.15 percent or higher blood alcohol content; a prior serious felony strike conviction; three prior prison terms; and a released-on-bail allegation. (Veh. Code, §§ 23550.5, subd. (a), 23152, subd. (a), 23578; Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b), 12022.1, subd. (b).) We strike the three prior prison term enhancements and reverse and remand for resentencing in light of the changed circumstances.
All further statutory references are to the Penal Code unless stated otherwise. --------
FACTUAL AND PROCEDURAL HISTORY
On December 11, 2017, California Highway Patrol officers saw Amezcua speeding and signaling with the left turn signal but turning right. The officers stopped him, concluded that he was intoxicated, and administered field sobriety tests. Following the field sobriety tests and chemical breath testing, the officers arrested Amezcua.
On February 8, 2018, while released on bail, Amezcua struck a fire hydrant on an Oxnard street. Police officers observed him to be intoxicated and arrested him. A blood alcohol sample obtained later reflected a blood alcohol content of 0.232 percent.
The prosecutor filed a consolidated amended felony information alleging, among other charges, the commission of two counts of driving under the influence including prior convictions, with allegations of 0.15 percent or higher blood alcohol content, a prior serious felony strike conviction (vehicular manslaughter), three prior prison terms, and the commission of the second charged offense while released on bail following his arrest for the first offense. (Veh. Code, §§ 23550.5, subd. (a), 23152, subd. (a), 23578; §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b), 12022.1, subd. (b).) The prosecutor also charged misdemeanor counts of leaving the scene of an accident and driving with a suspended driver's license. (Veh. Code, §§ 20002, subd. (a), 14601.2, subd. (a).) Amezcua faced a maximum prison sentence of 12 years 4 months.
On July 11, 2019, Amezcua pleaded guilty to two felony counts (counts 1 and 4) and admitted each allegation. The trial court sentenced him to a prison term of eight years four months, consisting of a two-year midterm for count 1 (then doubled), an eight-month term for count 4 (then doubled), and three years for the prior prison term enhancements. The court struck and did not impose sentencing for the released-on-bail enhancement. (§ 12022.1, subd. (b).) The court also imposed various fines and fees, awarded Amezcua 825 days of presentence custody credit, and granted the prosecutor's motion to dismiss the remaining charged counts.
Amezcua appeals and contends that his three one-year prison term enhancements must be struck pursuant to Senate Bill No. 136, amending section 667.5, subdivision (b). The Attorney General concedes.
DISCUSSION
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision (b) to provide: "[T]he court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . ." (Stats. 2019, ch. 590, § 1.) Amezcua asserts that his three one-year prior prison term enhancements must be struck because the prison terms were served for driving under the influence and vehicular manslaughter offenses, not sexually violent offenses.
" '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. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.' " (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307.)
Amezcua's judgment is not yet final and thus Senate Bill No. 136 applies to him. (People v. Jennings (2019) 42 Cal.App.5th 664, 682.) His prior prison terms were not served for sexually violent offenses and he is entitled to the benefit of the amendment to section 667.5, subdivision (b).
Accordingly, we strike the three one-year prior prison term enhancements and reverse and remand for resentencing to permit the trial court to exercise its sentencing discretion in light of changed circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Jennings, supra, 42 Cal.App.5th at p. 682.)
We modify the judgment to strike the three one-year prison term enhancements imposed pursuant to section 667.5, subdivision (b), and reverse and remand for resentencing. We direct the trial court to prepare an amended abstract of judgment accordingly and to forward the amended abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
GILBERT, P. J. I concur:
YEGAN, J.
PERREN, J.
Bruce A. Young, Judge
Superior Court County of Ventura
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.