Opinion
C086781
02-10-2020
In re RICKY LYNN WILLIAMS on Habeas Corpus.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFMISC20180000015)
In 2008 a jury found defendant Rick Lynn Williams guilty of second degree robbery and assault with an assault weapon. The court sentenced defendant to 12 years in state prison. At sentencing, the trial court had no discretion to strike a Penal Code section 12022.53 allegation. In 2018 the Legislature repealed portions of sections 12022.5 and 12022.53 that forbid striking those allegations and provided that the trial court has discretion to strike such allegation or punishment. Defendant filed a petition for writ of habeas corpus, arguing section 12022.53, as amended in 2018 applied retroactively to his 2008 conviction and his case should be remanded to permit the trial court to exercise the discretion provided by the amended statute. The petition is without merit. Section 12022.53, as amended, has no application to final judgments, and finality has long since attached to the petitioner's judgment. We will discharge the order to show cause and dismiss the petition.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 2008, an amended information charged defendant with one felony count of violating section 211, second degree robbery, and one felony count of violating section 245, subdivision (a)(3), assault with an assault weapon. The information also alleged, as to the robbery charge, defendant used a firearm during the commission of the offense. (§ 12022.53, subd. (b).)
A jury found defendant guilty of both counts and found true the section 12022.53, subdivision (b) enhancement. In August 2008 the trial court sentenced defendant to the low term of two years on the second degree robbery count and the mandatory 10 years on the section 12022.53, subdivision (b) enhancement. The court sentenced defendant to eight years on the assault count, but stayed the sentence pursuant to section 654.
Subsequently, in 2010, we affirmed the judgment on appeal. (People v. Williams (Feb. 16, 2010, C059812) [nonpub. opn.].) The Supreme Court denied defendant's petition for review. In January 2018 defendant filed a petition for habeas corpus in the superior court asserting the arguments on retroactivity made here; the court denied the petition. On defendant's habeas petition to this court, we issued an order to show cause to permit further review of defendant's arguments.
DISCUSSION
Section 12022.53, Subdivision (h)
The court that sentenced Williams in 2008 had no discretion under section 1385 to strike the section 12022.53, subdivision (b) enhancement, or to strike the punishment. Senate Bill No. 620 (2017-2018 Reg. Sess.) amended section 12022.53, subdivision (h) to provide: "The court may, in the interest of justice pursuant to section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Senate Bill No. 620 thus conferred authority that was absent when Williams was sentenced. The question presented here is whether Senate Bill No. 620 should be applied retroactively to benefit defendant, whose criminal acts were committed and whose judgment of conviction and sentencing was final before Senate Bill No. 620's passage.
Retroactivity Generally
The Legislature may choose to apply its enactments retroactively. An express declaration of retroactivity will be given effect. We can imply a legislative intent to apply a measure retroactively. But any such implication must be clear and compelling. (People v. Grant (1999) 20 Cal.4th 150, 157.) This presents a question of law and we apply the independent standard of review. (DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 418.)
In this connection, we grant defendant's motion to take judicial notice of various legislative analyses on Senate Bill No. 620. We find none of the analyses instructive on the issues before us.
The California Supreme Court has found a clear and compelling implication supporting retroactivity with respect to statutes reducing punishment for criminal offenses. In re Estrada (1965) 63 Cal.2d 740 holds that when the Legislature amends a statute for the purpose of lessening the punishment, in the absence of a clear legislative intent to the contrary, a defendant should be accorded the benefit of a mitigation of punishment though mitigating laws are passed after defendant's criminal act and even after conviction. However, the rule in Estrada applies only to nonfinal judgments. Rarely has a court found a legislative intent to extend retroactivity to a final judgment. (See In re Chavez (2004) 114 Cal.App.4th 989 [statutory amendment reestablishing determinate sentence for tax fraud should be applied retroactively even though the judgment was final given a clear and compelling implication of legislative intent supporting such an application].) The Chavez court also found that even when the Legislature expressly intends an ameliorative provision to apply prospectively, constitutional considerations may require retroactive application. (Id. at p. 1000, citing In re Kapperman (1974) 11 Cal.3d 542, 544-545.)
Arguments
Defendant contends that (1) even in the absence of an express legislative declaration, we should imply a legislative intent that the changes enacted by Senate Bill No. 620, section 12022.53, subdivision (h) apply to final judgments of conviction, and (2) in light of the measure's stated purpose, the measure must be applied to him as a matter of equal protection.
In People v. Fuimaono (2019) 32 Cal.App.5th 132, 134-135, this court declined to imply the legislative intent sought here. We concluded: "Senate Bill No. 620, however, does not contain language authorizing resentencing of convictions after they became final. And absent any new authority to resentence defendant under Senate Bill No. 620, the trial court lacked jurisdiction to grant defendant's resentencing request." (Fuimaono, supra, at p. 135.) People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327 adopted Fuimaono's reasoning in rejecting a similar request for retroactive application of the measure. We find no reason to reconsider Fuimanono's holding.
Defendants' equal protection argument was rejected in People v. Floyd (2003) 31 Cal.4th 179, and citing Floyd, the People insist that that "no court 'in this state or any other' has recognized an 'equal protection violation arising from the timing of the effective date of a statute lessening punishment for a particular offense.' " This court agreed with that observation in People v. Lynch (2012) 209 Cal.App.4th 353: "The right to equal protection of the law generally does not prevent the state from setting a starting point for a change in the law. '[T]he Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time.' (Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505.) The same rule applies to changes in sentencing law that benefit defendants." (Lynch, supra, at p. 359.)
We reject the arguments set forth in the petition and decline to grant the relief requested therein. The facts of this case do not resemble those present in In re Chavez, supra, 114 Cal.App.4th 989 and we adhere to this court's previous statements of principle in People v. Lynch, supra, 209 Cal.App.4th 353.
DISPOSITION
The order to show cause is discharged and the petition for writ of habeas corpus is denied.
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
HOCH, J.