Opinion
C089359
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVEN THOMAS CONCEPCION, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 18F1385, 18F3162)
Defendant Steven Thomas Concepcion pleaded no contest to numerous counts of driving under the influence of alcohol. He also admitted as true the allegation that he previously was convicted of a felony under Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to an aggregate term of 10 years four months in state prison.
Undesignated statutory references are to the Penal Code. --------
Defendant contends on appeal that this court should strike the one-year prior prison term enhancement in light of recently enacted Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, subdivision (b) by limiting the offenses that qualify for the enhancement. The People concede the amendment applies retroactively to defendant, and we agree.
Accordingly, we shall strike the prior prison term enhancement and affirm the judgment as modified.
BACKGROUND
The facts underlying defendant's convictions are not relevant to the issue raised on appeal.
In Shasta County Superior Court case No. 18F1385, the People charged defendant with driving under the influence (DUI) on January 27, 2018, within 10 years of his prior felony DUI (Veh. Code, §§ 23152, subd. (a), 23550.5; count 1), and DUI while having 0.08 percent or more of alcohol in his blood within 10 years of his prior felony DUI (Veh. Code, §§ 23152, subd. (b), 23550.5; count 2). The People further alleged as to both counts that defendant previously was convicted of a serious or violent felony (§ 1170.12), that he had a blood alcohol content of 0.15 percent or higher (Veh. Code, § 23578), that defendant drove at excessive speeds (Veh. Code, § 23582) and in a manner prohibited by Vehicle Code section 23103, and that defendant served a prior prison term (§ 667.5, subd. (b)) for the offense of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)).
In Shasta County Superior Court case No. 18F3162, the People charged defendant with DUI on April 22, 2018, within 10 years of his prior felony DUI (Veh. Code, §§ 23152, subd. (a), 23550.5; count 1), DUI while having 0.08 percent or more of alcohol in his blood within 10 years of his prior felony DUI (Veh. Code, §§ 23152, subd. (b), 23550.5; count 2), and failure to provide evidence of financial responsibility, an infraction (Veh. Code, § 16028, subd. (a); count 3). The People further alleged as to counts 1 and 2 that defendant previously was convicted of a serious or violent felony (§ 1170.12), that he served a prior term in prison (§ 667.5, subd. (b)) for the offense of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), that he had a blood alcohol content of 0.15 percent or higher (Veh. Code, § 23578), and that he committed the offense while released on bail or on his own recognizance in case No. 18F1385 (§ 12022.1).
Defendant pleaded no contest to all counts and admitted all the allegations. The trial court sentenced defendant to an aggregate term of 10 years four months in state prison, including one year for his prior prison term.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends, and the People agree, that recently enacted Senate Bill No. 136 (Senate Bill 136), which limits the prior offenses that qualify for a prior prison term enhancement under section 667.5, subdivision (b), applies retroactively to his case. We agree.
The Legislature enacted Senate Bill 136 (2019-2020 Reg. Sess.) on October 8, 2019 (Stats. 2019, ch. 590, § 1), and it became effective on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a); People v. Camba (1996) 50 Cal.App.4th 857, 865.) Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years.
Senate Bill 136 amends section 667.5, subdivision (b) to limit its prior prison term enhancement to people who have served a sentence for a sexually violent offense, as defined. The amended provision states: "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).)
We concur with the parties that the changes effected by 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.)
New criminal legislation is generally presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) Where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 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.' " (People v. Superior Court (Lara), supra, 4 Cal.5th at p. 308.) Conversely, the Estrada rule " 'is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express savings clause or its equivalent.' " (People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)
Here, Senate Bill 136 narrowed who was eligible for a section 667.5, subdivision (b) prison prior enhancement. 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 find that Estrada's inference of retroactive application applies. (Accord, People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate Bill 136 applies retroactively to cases not yet final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].) Accordingly, we will modify the judgment to strike defendant's one-year prior prison term enhancement.
DISPOSITION
We modify the judgment to strike defendant's one-year prior prison term enhancement. The judgment is otherwise affirmed. This opinion is immediately final as to this court. (See Cal. Rules of Court, rule 8.272(c)(1).) The superior court is directed to prepare an amended abstract of judgment and to forward a certified copy thereof to the California Department of Corrections and Rehabilitation.
KRAUSE, J. We concur: HULL, Acting P. J. MURRAY, J.