Opinion
C087507
02-04-2020
THE PEOPLE, Plaintiff and Respondent, v. JASON AARON CARTER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15FE05921) OPINION ON TRANSFER
Defendant Jason Aaron Carter pled guilty to multiple crimes arising from a series of burglaries and robberies. He was sentenced to an aggregate prison term of 19 years four months, including a five-year enhancement for a prior serious felony conviction and two one-year enhancements for his prior prison terms. On appeal, defendant contends remand is required to allow the trial court to exercise its discretion whether to strike the enhancement pursuant to recently enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.; Stats. 2018, ch. 1013, §§ 1-2) (Senate Bill 1393).
In an opinion issued in August 2019, we ordered the matter remanded to permit the court to exercise its discretion under Senate Bill 1393. In all other respects, we affirmed. After our opinion issued, the Supreme Court vacated our opinion and transferred the cause back to us to consider the effect of recently enacted Senate Bill No. 136 (2019-2020 Reg. Sess.; Stats. 2019, ch. 590, § 1) (Senate Bill 136) on defendant's sentence and judgment. We received supplemental briefing from the parties, who agree that defendant's two one-year prison prior enhancements should be stricken under Senate Bill 136. We accept the parties' concession that defendant's prison prior enhancements should be stricken. Further, we again remand the matter to permit the court to exercise its discretion under Senate Bill 1393. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Due to the limited nature of the claim on appeal, we need not recite the offenses in any detail. It suffices to say that defendant broke into a residential property and stole jewelry, attempted to rob a convenience store, assaulted an employee of the store, and assaulted a security guard who discovered him burglarizing a hospital room. Before taking the plea, the trial court noted that defendant planned to enter a "straight-up plea" of no contest or guilty in exchange for dismissal of two of the charged counts, and defendant would face a maximum exposure at sentencing of 26 years four months in prison. Defendant pled guilty to one count of first degree residential burglary (Pen. Code, § 459), guilty to two counts and no contest to one count of attempted second degree robbery (§§ 211, 664), and no contest to one count of second degree burglary (§ 459). Additionally, he admitted he suffered three prior convictions resulting in a prison term, one of which was a serious felony (§§ 667.5, subd. (b), 667, subd. (a)), and that he personally used a deadly and dangerous weapon in the commission of one count of attempted second degree robbery and the second degree burglary (§ 12022, subd. (b)(1)).
Undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to an aggregate prison term of 19 years four months, including a five-year enhancement for a prior serious felony conviction (§ 667, subd. (a)) and two years for two of the prior prison terms (§ 667.5, subd. (b)). Defendant's prior prison terms were for robbery (§ 211), possession for sale of cocaine base (Health & Saf. Code, § 11351.5), and second degree burglary (§ 460, subd. (b)). The court did not clarify which two of the three prison priors it selected for the sentence. Defendant timely appealed. The trial court denied defendant's request for a certificate of probable cause.
DISCUSSION
I
Prior Felony Conviction Enhancement
Defendant contends his case must be remanded so the trial court can exercise its discretion whether to strike the prior felony conviction enhancement under section 667, subdivision (a), pursuant to Senate Bill 1393. We agree.
When defendant was sentenced, section 1385 did not authorize a trial court to strike or dismiss a section 667 prior serious felony conviction enhancement. (Former § 1385, subd. (b); Stats. 2014, ch. 137, § 1.) Senate Bill 1393 amended sections 667 and 1385, effective January 1, 2019, deleting the provisions in those statutes which prohibited a trial judge from striking a section 667 prior serious felony conviction enhancement in furtherance of justice. (Stats. 2018, ch. 1013, §§ 1-2.) "Senate Bill 1393 applies retroactively to all cases or judgments of conviction in which a five-year term was imposed at sentencing, based on a prior serious felony conviction, provided the judgment of conviction is not final . . . ." (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972.)
Here, the trial court imposed a five-year enhancement pursuant to section 667, subdivision (a). Citing In re Estrada (1965) 63 Cal.2d 740, defendant argues Senate Bill 1393 applies to him retroactively because his judgment is not yet final. He contends remand is required because the record does not clearly indicate the trial court would not have dismissed the section 667 enhancement if it had the discretion to do so at the time of sentencing. The Attorney General concedes that Estrada requires retroactive application of Senate Bill 1393 to defendant's case, but argues that because defendant pled to a stipulated sentence and did not obtain a certificate of probable cause, he may not challenge the validity of the plea. The Attorney General misconstrues the record. As defendant points out, he did not agree to a stipulated sentence but entered a "straight-up plea" with a maximum exposure of 26 years four months in prison. The trial court thus retained discretion in sentencing defendant.
Because the trial court retained discretion in sentencing defendant, his claim on appeal does not raise a challenge to the validity of the plea and he was not required to obtain a certificate of probable cause. "[A] plea in which the parties agree to a maximum sentence does not require a certificate of probable cause unless the defendant challenges the legal validity of the maximum sentence itself. [Citations.] This is because a plea bargain where the parties agree to any sentence at or below a maximum necessarily contemplates that the trial court will choose from among a range of possible punishments." (People v. Galindo (2019) 35 Cal.App.5th 658, 665, review granted Aug. 28, 2019, S256568.) Further, the record does not affirmatively suggest that the trial court would not exercise its discretion to strike the enhancement. Accordingly, because defendant was convicted and sentenced for a prior serious felony enhancement under section 667, subdivision (a), and his conviction is not yet final, remand is required to allow the trial court to exercise its discretion whether to strike the enhancement. (See People v. Garcia, supra, 28 Cal.App.5th at pp. 971-972 [applying Senate Bill 1393 retroactively under the Estrada rule to nonfinal judgment].)
II
Prior Prison Term Enhancements
In his supplemental brief on the applicability of Senate Bill 136, defendant claims his prior prison term enhancements must be vacated based on the retroactive application of Senate Bill No. 136. The People agree.
On October 8, 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense, as defined. The amended provision states in pertinent part: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the 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, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).)
In this case, none of defendant's prior prison terms were for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. Defendant is therefore entitled to the ameliorative benefit of the statute if Senate Bill 136 is applied retroactively. We agree with the parties that the amendment to Senate Bill 136 should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 [noting "the role of a court is to determine the intent of the Legislature"].) Generally speaking, new criminal legislation is presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an inference arises under Estrada " 'that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' " (Lara, at p. 308.) "A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so. [Citation.]" (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Senate Bill 136 narrowed who was eligible for a section 667.5, subdivision (b) prior prison term enhancement, thus rendering ineligible many individuals, including defendant, who served prior prison sentences for robbery, possession for sale of cocaine base, and second degree burglary. There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we conclude Estrada's inference of retroactive application applies. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to legislative changes to former section 12022.6, subds. (a) and (b) enhancements].) Accordingly, we will modify the judgment to strike defendant's two prior prison term enhancements.
DISPOSITION
The judgment is modified to strike defendant's section 667.5, subdivision (b) prior prison term enhancements. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The matter is remanded to the trial court for the limited purpose of allowing the trial court to exercise its discretion pursuant to sections 667, subdivision (a), and 1385, as amended by Senate Bill 1393, as to whether to strike the prior serious felony enhancement. The judgment is otherwise affirmed.
KRAUSE, J. We concur: BLEASE, Acting P. J. ROBIE, J.