Opinion
F080899
04-20-2021
THE PEOPLE, Plaintiff and Respondent, v. LOUIS A. CRUZ, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PCF358466)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Antonio O. Reyes, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and DeSantos, J.
-ooOoo-
INTRODUCTION
Following events that began when defendant Louis A. Cruz entered his ex-girlfriend's car, demanded she drive him to a specific location, and then took her car keys and her car when she refused, defendant was charged with the following six felonies: carjacking (Pen. Code, § 215, subd. (a); count 1), being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 2), unlawful possession of ammunition (§ 30305, subd. (a)(1); count 3), possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 4), being under the influence of methamphetamine while in possession of a firearm (Health & Saf. Code, § 11550, subd. (e); count 5), and possession of a false compartment with intent to conceal a controlled substance (Health & Saf. Code, § 11366.8, subd. (a); count 6). He was also charged with one misdemeanor count of driving under the influence of a drug (Veh. Code, § 23152, subd. (f); count 7).
All further references are to the Penal Code unless otherwise noted.
As the facts underlying the crimes are not relevant to the issues raised on appeal, we do not summarize them further.
Pursuant to a negotiated plea agreement, defendant pled no contest to count 1, which was reduced to a misdemeanor for the unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)); and count 2, being a felon in possession of a firearm with an attached gang enhancement (§§ 29800, subd. (a)(1), 186.22, subd. (b)(1)(A)). Defendant also pled no contest to the allegations that he suffered three prior serious or violent felony convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he served two prior prison terms (§ 667.5, former subd. (b)). The trial court gave an indicated sentence of four years four months and defendant was released from custody on a Cruz waiver.
A Cruz waiver gives "the trial court the power to 'withdraw its approval of the ... plea and impose a sentence in excess of the bargained-for term' in the event [the defendant] willfully fail[s] to appear for sentencing." (People v. Scarbrough (2019) 40 Cal.App.5th 550, 552, quoting People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5 (Cruz).)
Defendant subsequently failed to appear in court. At sentencing following his arrest, the trial court elected to impose a six-year prison sentence: the middle term of two years on count 2, the middle term of three years for the gang enhancement and one year for the prior prison term enhancement. In addition, the court imposed, without objection, a restitution fine of $1,200 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $1,200 under section 1202.45, subdivision (a), suspended; a court operations assessment of $80 under section 1465.8; and a court facilities assessment of $60 under Government Code section 70373. Noting an inability to pay, the court did not impose a probation report fee or costs for legal assistance. (§§ 1203.1b, 987.8.)
On appeal, defendant requests that we remand this matter to the trial court with directions to strike the one-year prior prison term enhancement, pursuant to Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020. (Stats. 2019, ch. 590, § 1, pp. 1-4 (Senate Bill No. 136).) Defendant also seeks an ability-to-pay hearing on remand, pursuant to the Court of Appeal's decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
The People concede that defendant is entitled to relief under Senate Bill No. 136 and to remand under the full resentencing rule. (People v. Buycks (2018) 5 Cal.5th 857, 896.) In light of this concession, the People contend it is appropriate to permit defendant to raise an ability-to-pay challenge to the fines and assessment during resentencing. However, they urge that his challenge to the punitive fines be limited to the Eighth Amendment and his challenge to any nonpunitive fines and assessments be addressed under due process principles set forth in Dueñas.
We agree with the parties that under Senate Bill No. 136, the two prior prison term enhancements must be stricken and that remand for a full resentencing is appropriate. (People v. Buycks, supra, 5 Cal.5th at p. 896.) This disposition renders defendant's Dueñas claim moot and, therefore, we do not reach either the issue of forfeiture or the merits of the claim. Except as otherwise provided herein, the judgment is affirmed.
We note that because the trial court imposed a restitution fine in an amount in excess of the statutory minimum, defendant had the right to object based on ability to pay. (§ 1202.4, subd. (c).) Moreover, the Dueñas decision was issued on January 8, 2019, and therefore, the parties and the trial court had the benefit of the decision at the time of the sentencing hearing held on June 24, 2019. However, given the remand of this matter for a full resentencing, it is unnecessary to consider these issues.
DISCUSSION
Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant here, trial courts are required to impose a three-year sentence for each prior, separate prison term served by the defendant for a violent felony where the current offense is also a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant to former subdivision (b) of section 667.5, and subject to exceptions not relevant here, trial courts are required to impose an additional one-year term for each prior, separate prison term or county jail felony term. As amended by Senate Bill No. 136, subdivision (b) of section 667.5 limits imposition of the additional one-year term to each prior, separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
In accordance with the California Supreme Court's decision in In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada), "'"[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].'" (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v. DeHoyos (2018) 4 Cal.5th 594, 600; accord, People v. Frahs (2020) 9 Cal.5th 618, 641.)
The parties agree that Senate Bill No. 136 is retroactive under the Estrada rule and that defendant is entitled to relief from the two prison term enhancements findings under section 667.5, former subdivision (b). They also agree that the matter should be remanded for resentencing. (People v. Buycks, supra, 5 Cal.5th at p. 896.) We accept the People's concessions on these points and order the matter remanded for the trial court to strike the two prior prison term enhancements and to resentence defendant. As previously stated, this renders defendant's Dueñas claim moot. On remand, he may raise the issue and make an appropriate record. (People v. Montes (2021) 59 Cal.App.5th 1107, 1121.)
The prior prison term enhancement allegations were based on defendant's convictions for stalking, in violation of section 646.9, subdivision (a), and possession of a controlled substance, in violation of Health and Safety Code section 11350, subdivision (a). --------
DISPOSITION
Pursuant to Senate Bill No. 136, this matter is remanded for the trial court to strike the two prior prison term enhancements (§ 667.5, former subd. (b)), and to resentence defendant. Following resentencing, the trial court shall forward an amended abstract of judgment to the appropriate authorities. The judgment is otherwise affirmed.