Opinion
A150184
05-04-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN DUANE CARADINE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC184207)
After having pled guilty to one count of possessing heroin for sale (Health & Safety Code, § 11351), defendant Kevin Caradine was sentenced on July 3, 2014, to six years in prison, with two years to be served in actual custody in Marin County Jail and the four-year balance to be served on mandatory supervision (Pen. Code, § 1170, subd. (h)(5)(B)). Subsequently, on October 28, 2016, the trial court revoked defendant's mandatory supervision and ordered him to serve the balance of his sentence (879 days) in Marin County Jail. Defendant has appealed the revocation of his mandatory supervision, contending the trial court's finding that he intentionally violated the terms of his mandatory supervision is not supported by substantial evidence. That question has been rendered moot, and we do not decide it, because of a recent change in the law reducing the term of his sentence.
Defendant's six-year sentence included a three-year enhancement under Health & Safety Code, § 11370.2 for an admitted prior conviction for transporting or selling drugs (Health & Safety Code, § 11352; former Health & Safety Code, § 11370.2, subd. (a)). While this appeal was pending, the Legislature amended section 11370.2, effective as of January 1, 2018, to abolish that drug offense (and others) as a basis for the sentence enhancement. (See Stats. 2017, ch. 677, § 1.) The parties filed supplemental briefing concerning the impact of this amendment. Defendant contends this change in the law applies to him retroactively under In re Estrada (1965) 63 Cal.2d 740, and asks us to strike his prior drug conviction enhancement and reduce his sentence by three years. The People agree, and do not oppose the striking of his enhancement now that the amendment has taken effect.
In light of the People's position, it is appropriate for defendant's sentence to be reduced by three years. When the trial court revoked defendant's mandatory supervision and ordered him back to jail on October 28, 2016, defendant had less than three years remaining on his original sentence (i.e., 879 days). Eliminating the three-year enhancement imposed under prior law, his sentence has been served.
DISPOSITION
The order revoking defendant's mandatory supervision is vacated, and the case is remanded for further proceedings consistent with this opinion to strike defendant's three-year enhancement under Health & Safety Code section 11370.2.
We may direct immediate issuance of the remittitur if the parties so stipulate, and encourage the parties to consider doing so. (See Cal. Rules of Court, rule 8.272(c)(1).)
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.