Opinion
E073611
09-15-2021
THE PEOPLE, Plaintiff and Respondent, v. CHRISTEN R. DUBARR, Defendant and Appellant.
Kristin Traicoff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF1800962. Becky Dugan, Judge. Affirmed with directions.
Kristin Traicoff, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
This case is before us for the second time. In our opinion filed July 14, 2020 (Dubarr I), we held defendant and appellant Christen R. Dubarr was foreclosed from taking advantage of the 2020 amendment to Penal Code section 667.5 (Stats. 2019, Ch. 590, § 1), which retroactively limited prior prison term enhancements to sexually violent offenses.
All statutory references hereafter are to the Penal Code and all references to rules are to the California Rules of Court.
The California Supreme Court granted defendant's petition for review, deferred briefing, and transferred the matter back to this court with directions to vacate our decision in Dubarr I, and reconsider the cause in light of People v. Esquivel (2021) 11 Cal.5th 671 (Esquivel). We invited the parties to submit supplemental briefing, which they have done. We agree with defendant and the People that in light of Esquivel, defendant is entitled to relief under subdivision (b) of section 667.5.
BACKGROUND
In November 2018, defendant and appellant Christen R. Dubarr pled guilty to assault with a deadly weapon in violation of subdivision (a)(1) of section 245. He also admitted a great bodily injury enhancement (§§ 1192.7 & 12022.7, subd. (a)) and four prior prison enhancements resulting from convictions for offenses not involving sexual violence (former § 667.5, subd. (b)). He was sentenced to five years in state prison consisting of a low term of two years for the assault with a consecutive three-year sentence for the bodily injury enhancement. The court also imposed, but then struck, a one-year sentence for each of the four prison priors. The court suspended execution of the five-year sentence on condition that defendant successfully complete a three-year probation period.
Eight months later, defendant admitted to violating his probation by failing to check in with his probation officer. The court ordered the five-year sentence previously imposed and suspended to be placed in full force and effect. Defendant appealed.
DISCUSSION
On appeal, defendant argues the four prison priors should be stricken and the judgment modified to eliminate reference to them because the January 2020 amendment to subdivision (b) of section 667.5 limiting prior prison term enhancements to sexually violent offenses is retroactive as to cases not final on the amendment's effective date.
When defendant was sentenced in November 2018, the trial court was required to impose a one-year sentence enhancement for each true finding on allegations the defendant had served a separate prior prison term and had not remained free from custody for at least five years. (Pen. Code, former § 667.5, subd. (b).) In 2019, Senate Bill No. 136 limited the enhancement provision to prior prison terms resulting from convictions for sexually violent offenses as defined by section 6600 of the Welfare and Institutions Code. The amendment became effective on January 1, 2020.
A new or amended statute that reduces the punishment for an offense will, absent evidence to the contrary, apply retroactively to any case in which the judgment is not yet final on the statute's operative date. (In re Estrada (1965) 63 Cal.2d 740, 742, 744-745 (Estrada); People v. Winn (2020) 44 Cal.App.5th 859, 872-873.) For purposes of the Estrada rule, a judgment is not final so long as courts may provide a remedy on direct review, including the time within which to petition the United States Supreme Court for writ of certiorari. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1336.)
In a criminal matter, the declaration to the defendant of the disposition or punishment following ascertainment of criminal guilt is the judgment. (People v. Wilcox (2013) 217 Cal.App.4th 618, 625.) If the trial court orders probation, the timing of the judgment will vary depending on whether the court suspends imposition of sentencing or instead imposes the sentence but suspends its execution. (People v. Segura (2008) 44 Cal.4th 921, 932.)
In Dubarr I, we concluded the timing of imposition of a sentence necessarily affects a defendant's eligibility for benefitting from an ameliorative change in the law. That is, if a defendant is not sentenced until probation is revoked, then defendant may take advantage of a change in the sentencing laws. On the other hand, we found no relief is available in a case like the present one in which the court's revocation of probation requires the defendant to serve the sentence set forth in an order that was final before the effective date of the new provision.
After we issued our opinion in Dubarr I, the Supreme Court found the distinction between suspended-imposition and suspended-execution defendants to be contrary to the Legislature's intent in enacting legislation to ameliorate punishment. (Esquivel, supra, 11 Cal. 5th at p. 680.) It held a person whose suspended-execution judgment has become final may nevertheless presumptively benefit from such legislation so long as they may still timely obtain direct review of an order revoking probation and causing the previously imposed state prison sentence to take effect. (Id. at pp. 673, 680.) Accordingly, we find defendant is entitled to retroactive relief pursuant to subdivision (b) of section 667.5 with respect to the four prison priors imposed in November 2018.
In the usual case, when we find a defendant is entitled to benefit from a change in sentencing laws, we remand with directions to resentence defendant, which permits the trial court to exercise its discretion to reconsider its sentencing decisions in light of the change. (People v. Buycks (2018) 5 Cal.5th 857, 893.) Here, however, the trial court struck the punishment for the four prison priors in the course of the sentencing hearing so there is no need for a new hearing.
DISPOSITION
The cause is remanded with instructions to strike the four prior prison term enhancements and to amend the judgment accordingly. In all other respects, the judgment is affirmed.
We concur: McKINSTER J., MENETREZ J.