Opinion
D072661
06-04-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LEWIS FRAZER, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD265534) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed in part, reversed in part, and remanded with directions. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Anthony Lewis Frazer of robbery (Pen. Code, § 211), failure to appear while on bail (Pen. Code, § 1320.5), and conspiracy to commit an act injurious to the public (Pen. Code, § 182, subd. (a)(5)). As to the robbery conviction, the jury found true an allegation Frazer personally used a firearm (Pen. Code, § 12022.53, subd. (b)). As to the remaining convictions, the jury found true allegations Frazer was out on bail at the time of the offenses (Pen. Code, § 12022.1, subd. (b)). The trial court sentenced Frazer to 13 years in prison, which included 10 years for the personal firearm use enhancement.
Frazer appeals, contending we should remand the case for resentencing in light of a recent amendment to Penal Code section 12022.53, which gives the trial court the discretion, at time of sentencing, to strike or dismiss a firearm enhancement under this section in the interest of justice. (Pen. Code, § 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) The People concede and we agree Frazer is entitled to resentencing because the amendment is retroactive under controlling authority.
We, therefore, reverse the sentence and remand the matter to allow the court an opportunity to exercise its newly acquired discretion to decide whether it is in the interests of justice to dismiss the personal firearm use enhancement for sentencing purposes. In all other respects, we affirm the judgment.
II
We omit a summary of the facts underlying Frazer's convictions as it is not necessary to resolve the issue raised on appeal. --------
DISCUSSION
While this case was pending, an amendment to Penal Code section 12022.53 took effect. The amendment provided: "The court may, in the interest of justice pursuant to [Penal Code section] 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Pen. Code, § 12022.53, subd. (h).)
Frazer contends the amendment applies retroactively to cases, such as this one, that were not final when the amendment took effect and, consequently, he contends we must remand the matter to the trial court to allow the court an opportunity to exercise its discretion under the amendment. The Attorney General appropriately concedes the issue.
" 'The Legislature ordinarily makes laws that will apply to events that will occur in the future. Accordingly, there is a presumption that laws apply prospectively rather than retroactively.' " (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara); see Pen. Code, § 3 ["No part of [the Penal Code] is retroactive, unless expressly so declared"].)
However, " '[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.' " (Lara, supra, 4 Cal.5th at p. 307, quoting In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) " 'The Estrada rule rests on an inference 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.' " (Lara, at p. 308.)
Among the circumstances in which the Estrada rule applies is when, as here, a legislative amendment " 'vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty.' " (Lara, supra, 4 Cal.5th at p. 308, quoting People v. Francis (1969) 71 Cal.2d 66, 76.) This is because the Legislature inferably " 'has determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances.' " (Lara, at p. 308, quoting People v. Francis, supra, 71 Cal.2d at p. 76.) As Penal Code section 12022.53, subdivision (h), falls within the Estrada rule and as Frazer's sentence is not yet final, we will remand the matter to the trial court to allow the court an opportunity to exercise its newly acquired discretion under this section to decide whether it is in the interest of justice to dismiss the personal firearm use enhancement for sentencing purposes. (People v. Watts (2018) 22 Cal.App.5th 102, 262-263; People v. Vela (2018) 21 Cal.App.5th 1099, 1113-1114; People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507; People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
III
DISPOSITION
The sentence is reversed. The matter is remanded to allow the trial court an opportunity to exercise its newly acquired discretion under Penal Code section 12022.53, subdivision (h), to decide whether it is in the interest of justice to dismiss the personal firearm use enhancement for sentencing purposes. In all other respects, the judgment is affirmed.
McCONNELL, P. J. WE CONCUR: BENKE, J. AARON, J.