Summary
In People v. Belfield (June 19, 2020, A158180) [nonpub. opn.] we remanded for the trial court to exercise its discretion as to whether to strike the section 667, subdivision (a) enhancement.
Summary of this case from People v. BelfieldOpinion
A158180
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. TONY BELFIELD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-150534-6) MEMORANDUM OPINION BY THE COURT:
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
Before Siggins, P.J., Petrou, J., and Jackson, J.
In People v. Belfield (Nov. 29, 2018, A149964 [nonpub.opn.]) (Belfield I), this court affirmed Tony Belfield's conviction of murder and other felonies and remanded for the trial court to consider whether to strike a firearm enhancement imposed pursuant to Penal Code section 12022.53. The trial court then struck the firearm enhancement, but declined to strike an enhancement for a prior serious felony conviction imposed under former section 667, subdivision (a). We again remand for resentencing.
Further statutory references are to the Penal Code.
In 2016 a jury found Belfield guilty of murder, shooting at a person from a motor vehicle and unlawfully possessing a firearm. Enhancement allegations that he personally discharged a firearm causing great bodily injury or death were found true. The court found that Belfield had two prior strike convictions, one prior serious felony conviction and two prior prison terms. Belfield was sentenced to a total term of 75 years to life in prison. (Belfield I, supra, at pp. 1, 9.)
This court affirmed Belfield's conviction and remanded for the trial court to consider whether to dismiss the firearm allegations pursuant to a recently enacted amendment to section 12022.53, subdivision (h). (Belfield I, supra, at pp. 26-27.) After we issued Belfield I, sections 667, subdivision (a) and 1385, subdivision (b) were amended to give trial courts the discretion to dismiss or strike prior serious felony allegations for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 965, 971.)
Upon remand, the trial court struck the 25-year firearm enhancement. But the court denied Belfield's motion to strike the prior serious felony enhancement imposed under former section 667, subdivision (a), because it believed the motion was seeking relief beyond the jurisdictional bounds of our remand. It was not.
As we stated in Belfield I, supra, at page 26, and both parties acknowledge, settled law holds that a statutory amendment that reduces criminal punishment applies retroactively to all cases not final as of its effective date. (People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) "Unless there is evidence to the contrary, courts presume that the Legislature intends for a statutory amendment reducing criminal punishment to apply retroactively in cases that are not yet final on appeal. [Citations.] This presumption is applied not only to amendments reducing a criminal penalty, but also to amendments giving the trial court discretion to impose a lesser penalty." (People v. Robbins, supra, 19 Cal.App.5th at p. 678.)
Belfield's case was not final when it was before the trial court on remand from Belfield I, there is no evidence of legislative intent that the changes to section 667, subdivision (a) should not apply to cases not yet final, and the trial court gave no indication it would not strike the enhancement had it the jurisdiction to do so. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) This case must therefore be remanded again for the trial court to consider whether to exercise the discretion granted by the amended statute.
The matter is remanded to the trial court with directions to consider whether to strike the recidivist enhancement imposed under former section 667, subdivision (a). At that time, the trial court is entitled to consider its entire sentencing scheme. (People v. Hubbard (2018) 27 Cal.App.5th 9, 13.)