Opinion
C088434
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ROY BILLUPS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18F1303)
A jury found defendant Steven Roy Billups guilty of criminal threats and possession of a smoking device, and the trial court found three prior prison term allegations true under Penal Code section 667.5, subdivision (b). He was sentenced to six years in state prison.
Further undesignated statutory references are to the Penal Code.
Defendant contends on appeal that this court should strike the three one-year prior prison term enhancements in light of newly enacted Senate Bill No. 136, 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.
Defendant initially raised a second objection based on People v. Dueñas (2019) 30 Cal.App.5th 1157 to the fees and fines imposed by the trial court, but later abandoned the claim. We therefore do not address the fees and fines here.
Accordingly, we shall strike the prior prison term enhancements and affirm the judgment as modified.
BACKGROUND
The facts underlying defendant's convictions are not relevant to the issue raised on appeal. Briefly summarized, while homeless and camping on a commercial property, defendant threatened the property manager when he requested that defendant leave the property. The property manager called police, and defendant was found in possession of a methamphetamine pipe when he was arrested.
Defendant was charged with criminal threats (§ 422) and possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)). The information further alleged three prior prison term enhancements under section 667.5, subdivision (b). The prior prison term enhancements were based on convictions for corporal injury with a prior conviction (§ 273.5, subds. (a), (f)); assault with force likely to cause great bodily injury (§ 245, subd. (a)); and theft or embezzlement of property from an elder or dependent adult (§ 368, subd. (d)).
A jury found defendant guilty of all charges and the trial court found the prior prison term enhancements true. The court sentenced defendant to an aggregate term of six years in state prison, which included the upper term of three years for the criminal threats offense plus one year for each of the three prior prison term enhancements. The court imposed a concurrent 180 days for the possession offense. Defendant timely appealed.
DISCUSSION
Defendant contends, and the People agree, that recently-enacted Senate Bill No. 136 (SB 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 SB 136 on October 8, 2019 (Stats. 2019, ch. 590, § 1), and it became effective on January 1, 2020. (Cal. Const., art. IV, § 8; 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.
SB 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 SB 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.)
"A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court discretion to do so." (People v. Hurlic (2018) 25 Cal.App.5th 50, 56, citing People v. Francis (1969) 71 Cal.2d 66, 75-78.) --------
Here, SB 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 [SB 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 three one-year prison prior enhancements.
DISPOSITION
We modify the judgment to strike defendant's three one-year prison prior enhancements. 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.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.