Opinion
E071568
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. ALBERT BETO ESTRADA, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1504227) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed in part as modified, reversed in part. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Albert Beto Estrada evaded police officers during a lengthy pursuit that ended when defendant crashed into a palm tree. Following a jury trial, defendant was convicted of evading an officer while driving recklessly and with wanton disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a); count 1) and evading an officer while driving against traffic (Veh. Code, § 2800.4; count 2). In a bifurcated proceeding, a jury also found true that defendant had suffered four prior prison terms (Pen. Code, § 667.5, subd. (b)) and two prior serious or violent felony strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced to a total term of nine years in state prison with 736 days of credit for time served as follows: the upper term of six years on count 2, plus the upper term of six years on count 1, which was stayed pursuant to section 654, and three consecutive one-year terms for three of the four prior prison term allegations. Defendant was also ordered to pay certain fines and fees.
The jury was unable to reach a verdict on counts 3, 4, and 5 for the charges of driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a); count 3), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); count 4), and possession of burglar's tools (Pen. Code, § 466; count 5). The trial court declared a mistrial as to those charges.
All future statutory references are to the Penal Code unless otherwise stated.
The trial court struck imposition of sentence for one of the prior prison term allegations.
On appeal, defendant contends the one-year enhancements imposed for the prior prison terms must be stricken pursuant to newly enacted Senate Bill No. 136 (Senate Bill 136). The People agree but argue the matter should be remanded for resentencing. We reverse the true findings on defendant's four one-year prior prison term enhancements under Senate Bill 136. In addition, for the sake of judicial economy, we will modify the judgment by striking the sentence for the four one-year enhancements imposed pursuant to section 667.5, subdivision (b). In all other respects, we affirm the judgment.
Because the parties agree the one-year terms for the prior prison term enhancements must be stricken, defendant filed a motion to withdraw arguments I-III of his opening brief for an expedited review and calendar preference and to allow his appeal to be resolved before he is required to serve more time in custody. We granted defendant's motion and directed the clerk of this court to strike defendant's opening brief. We, however, denied defendant's request for calendar preference.
II
The details of defendant's criminal conduct are not relevant to the limited issue raised in this appeal, and we will not recount them here. --------
DISCUSSION
In supplemental briefing, defendant asserts that, following the enactment of Senate Bill 136, the prior prison term enhancements must be stricken because his prior prison term convictions no longer qualify as predicate offenses for the imposition of enhancements pursuant to section 667.5, subdivision (b). Defendant also argues that the ameliorative benefits of Senate Bill 136 apply retroactively. The People agree but believe a remand is necessary.
While this appeal was pending, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.) (Stats 2019, ch. 590, § 1), effective January 1, 2020. At the time of defendant's sentencing, former section 667.5, subdivision (b), required trial courts to impose a one-year sentence enhancement for each true finding on an allegation that the defendant had served a separate prior prison term unless the defendant had remained free of both felony convictions and prison or jail custody during a period of five years since the subject prior prison term. Following the enactment of Senate Bill 136, only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b), are subject to the one-year enhancement pursuant to section 667.5, subdivision (b). (Stats 2019, ch. 590, § 1.)
"By eliminating section 667.5, subdivision (b) enhancements for all prior prison terms except those for sexually violent offenses, the Legislature clearly expressed its intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for prior prison terms for offenses other than sexually violent offenses. [Citation.]" (People v. Jennings (2019) 42 Cal.App.5th 664, 682 (Jennings).) Therefore, under the rule in In re Estrada (1965) 63 Cal.2d 740, "Senate Bill No. 136's . . . amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date." (Ibid.)
Defendant's case was still pending as of January 1, 2020. Therefore, he is entitled to the ameliorative benefit of Senate Bill 136's amendment to section 667.5, subdivision (b). Defendant's four prior prison terms were not for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Stats 2019, ch. 590, § 1.) Because these four prior prison terms will no longer be qualifying prior prison terms for the imposition of enhancements pursuant to section 667.5, subdivision (b), as amended by Senate Bill 136, we shall reverse the true findings on the four prior prison term enhancements. (See Jennings, supra, 42 Cal.App.5th at p. 682 [court reversed one-year section 667.5, subdivision (b) prior prison term enhancement].) Furthermore, because the trial court imposed the upper term on counts 1 and 2 and the court may not exceed the original sentence imposed upon remand and resentencing, we will modify the judgment by striking the one-year sentence imposed for the four section 667.5, subdivision (b) enhancements. (See People v. Lopez (2019) 42 Cal.App.5th 337, 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion" due to Senate Bill 136]; People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 ["Because the resentencing court had imposed the maximum possible sentence, regardless of whether the two-year on-bail enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew"].)
III
DISPOSITION
The true findings on the four prior prison term enhancements under section 667.5, subdivision (b), are reversed. The judgment is modified to strike the four one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b). The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a certified copy thereof to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.