Opinion
C087396
04-24-2020
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW DEAN BAKER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF01316)
Defendant Matthew Dean Baker pled no contest to unlawfully driving a vehicle and admitted two prior prison-term allegations in exchange for the dismissal of several additional pending charges. He was sentenced to an aggregate prison term of six years, including one year for each prior prison term enhancement, one based on a 2005 conviction for receiving stolen property. On appeal, he originally contended this court must strike his one-year prior prison term enhancement because the underlying conviction for receiving stolen property was reduced to a misdemeanor in 2015 under Proposition 47, entitled "the Safe Neighborhoods and Schools Act."
In an opinion issued in November 2019, we ordered the matter dismissed because defendant failed to obtain a certificate of probable cause and we found no change in the law at that time that would allow us to assume jurisdiction over his appeal. After our opinion issued, we granted rehearing 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 1-year prior prison term enhancements should be stricken under Senate Bill 136. Because a certificate of probable cause is not required to raise an issue arising from a change in law after entry into a plea agreement, we have jurisdiction to consider the effect of Senate Bill 136. (See People v. Baldivia (2018) 28 Cal.App.5th 1071, 1077-1079 [Proposition 57]; People v. Hurlic (2018) 25 Cal.App.5th 50, 53-54 [Senate Bill No. 620].) We agree with the parties that defendant's prior prison term enhancements should be stricken under Senate Bill 136. In all other respects, we affirm.
I. BACKGROUND
Defendant drove a stolen vehicle while under the influence of methamphetamine. On May 2, 2018, he pled no contest to one count of unlawfully driving a vehicle with a prior conviction (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5). Additionally, he admitted two prior prison term enhancements, including one based on a 2005 Butte County conviction for receiving stolen property (§ 496, subd. (a)). (§ 667.5, subd. (b).) Under the plea agreement, defendant agreed to a serve a prison term of up to six years based on the offense and enhancements. According to the probation report, the 2005 conviction was purportedly reduced to a misdemeanor on May 8, 2015; however, the probation report does not note whether the conviction was reduced pursuant to Proposition 47. Defense counsel did not object to the enhancement. When the court determined which among his prior convictions would form the basis for the enhancement, counsel expressly agreed to use the 2005 Butte County conviction. In exchange for his plea, several additional charges were dismissed. The trial court sentenced defendant to an aggregate prison term of six years as follows: the upper term of four years for the vehicle theft offense under section 666.5 and a consecutive two years for his two prison priors under section 667.5. Defendant timely appealed but did not obtain a certificate of probable cause.
Further undesignated statutory references are to the Penal Code.
II. DISCUSSION
In his supplemental brief on the applicability of Senate Bill 136, defendant claims his two 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, neither 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 (Lara) [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.' [Citations.]" (Lara, supra, 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." (People v. Hurlic, supra, 25 Cal.App.5th at p. 56.)
In re Estrada (1965) 63 Cal.2d 740 (Estrada).
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 grand theft and unlawfully driving or taking a vehicle. 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's inference of retroactivity to legislative changes to section 12022.6, subds. (a) and (b) enhancements].) Accordingly, we will modify the judgment to strike defendant's two prior prison term enhancements.
III. 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 judgment is otherwise affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
DUARTE, J.