Opinion
C087488
05-22-2020
THE PEOPLE, Plaintiff and Respondent, v. JIMMY RAY BRADLEY, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09F01534) OPINION ON REHEARING
In 2012, this court affirmed a judgment against defendant Jimmy Ray Bradley, pursuant to which defendant was sentenced to an aggregate term of 35 years to life in state prison. (People v. Bradley (Oct. 9, 2012, C064726) [nonpub. opn.].) In November 2013, the trial court resentenced defendant to an aggregate term of 17 years four months after granting his petition for resentencing pursuant to Penal Code section 1170.126 (Proposition 36—Three Strikes Reform Act of 2012).
On February 23, 2018, defendant petitioned the trial court to reduce his felony conviction for violating Health and Safety Code section 11359 (count 2) to a misdemeanor pursuant to Proposition 64. (Health & Saf. Code, § 11361.8, subd. (a).) The court granted his petition and reduced that conviction to a misdemeanor. Defendant also asked the court to strike his three prior drug offense enhancements, appended to his conviction for violating Health and Safety Code section 11378 (count 1), pursuant to Senate Bill No. 180 (2017-2018 Reg. Sess.) (Senate Bill 180), which amended Health and Safety Code section 11370.2. The court rejected that request and resentenced defendant to an aggregate term of 16 years in state prison.
On appeal, defendant contends the trial court erred in refusing to strike the prior drug enhancements appended to his conviction on count 1. We disagree.
"While we recognize that the Legislature may expressly avail defendants whose judgments are final of the benefits of newly enacted laws [citations], here, nothing in Senate Bill 180 suggests it was intended to apply to judgments that had become final before the filing of the motion. [Citation.] Had the Legislature intended that Senate Bill 180 should be applied to those whose criminal convictions had become final, it could easily have said so." (People v. Chamizo (2019) 32 Cal.App.5th 696, 700-701.)
Defendant's judgment was final in 2013. Thus, in 2018, when defendant moved the court to strike the Health and Safety Code section 11370.2 enhancements appended to his conviction on count 1, the trial court lacked jurisdiction to grant his request. (See People v. Chamizo, supra, 32 Cal.App.5th at pp. 700-701.) Contrary to defendant's argument on appeal, it is legally irrelevant that defendant's sentence on count 2 was reduced to a misdemeanor pursuant to Proposition 64, which applies to final judgments. (See People v Rascon (2017) 10 Cal.App.5th 388, 394-395 [Proposition 64 provides mechanism for resentencing or dismissing all judgments, including those that are final].) Finding no error, we affirmed the judgment in an opinion filed February 20, 2020. (People v. Bradley (Feb. 20, 2020, C087488) [nonpub. opn.])
Thereafter, we granted defendant's petition for rehearing and request to file supplemental briefing to address whether he is entitled to benefit from the recent changes to Penal Code section 667.5, subdivision (b). We vacated our opinion.
In his supplemental brief, defendant contends this court should strike his one-year prior prison term enhancement in light of recently enacted Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, subdivision (b) by limiting the offenses that qualify for the enhancement.
Senate Bill No. 136 amends Penal Code 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 Senate Bill No. 136 are to be applied retroactively to cases not yet final at the time the changes went into effect. (Accord, People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate Bill No. 136 applies retroactively to cases not yet final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].)
As discussed above, however, defendant's case was final in 2013, years before the effective date of Senate Bill No. 136 on January 1, 2020. Accordingly, the changes effected by Senate Bill No. 136 do not apply to this case.
DISPOSITION
The judgment is affirmed.
/s/_________
BUTZ, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
MURRAY, J.