Opinion
D072795
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN JAMES KELLY, Defendant and Appellant.
Sheila O'Connor, 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, Eric A. Swenson, Allison Acosta and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN352633) APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed and remanded for resentencing. Sheila O'Connor, 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, Eric A. Swenson, Allison Acosta and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Kevin James Kelly of possessing heroin for sale (Health & Saf. Code, § 11351). The trial court subsequently found true a prior conviction allegation (Pen. Code, §§ 667.5, subd. (b), 668) and two allegations of prior drug offenses under former section 11370.2, subdivision (b) (§ 11370.2(b)). Kelly entered an agreement to participate in the San Diego Superior Court Adult Drug Court Program. The trial court granted him three years' supervised probation under certain terms and conditions. After Kelly repeatedly violated the terms of his probation, the trial court terminated his drug court program, and later revoked his probation.
Undesignated statutory references are to the Health and Safety Code. --------
At the sentencing hearing the trial court imposed the upper term of four years on the substantive charge of possessing heroin for sale, two consecutive three-year terms under former section 11370.2(b), and a consecutive one-year term for the prison prior, for a total term of 11 years. The trial court exercised its discretion and suspended two years of Kelly's sentence, ordering that he serve nine years in local custody and two years under mandatory supervision of the probation department. (Pen. Code, § 1170, subd. (h)(5)(B).)
Kelly contends that the two sentence enhancements for the prior drug convictions imposed under former section 11370.2(b) must be stricken based on a recent statutory amendment that removed the offenses of which Kelly had been convicted from the list of offenses that require imposition of the enhancement. The People concede that Kelly is entitled to this relief. We agree and conclude that these enhancements must be stricken. We affirm Kelly's conviction, but reverse the sentence and remand the matter to the trial court with directions to strike the section 11370.2(b) enhancements and resentence Kelly accordingly.
DISCUSSION
Kelly's sentence includes two consecutive three-year terms under former section 11370.2(b), based on two prior convictions under section 11352. Under an amendment to former section 11370.2(b), however, a prior section 11352 conviction no longer qualifies for an enhanced sentence. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018.) As amended, only a prior conviction for violating section 11380 (using a minor in the commission of offenses involving specified controlled substances) qualifies as a predicate conviction for the enhancement under current section 11370.2(b). (§ 11370.2(b).) Because Kelly did not admit a prior conviction for violating section 11380, the enhancement no longer applies.
Kelly contends, and the People concede, that the amendment applies retroactively to him under In re Estrada (1965) 63 Cal.2d 740 and its progeny because the statutory amendment went into effect on January 1, 2018, while his appeal was pending. We agree. Because the judgment in this case is not yet final and the legislative change would lessen the punishment, under Estrada, the amendment to section 11370.2 applies retroactively to the sentence imposed in this case. (People v. Millan (2018) 20 Cal.App.5th 450, 455-456; People v. Zabala (2018) 19 Cal.App.5th 335, 344.)
Citing People v. Nasalga (1996) 12 Cal.4th 784 (Nasalga), Kelly contends we should use our power under Penal Code section 1260 to reduce the punishment imposed by striking the now inapplicable enhancements under Health and Safety Code section 11370.2 and reduce Kelly's sentence accordingly. The People assert we should remand the matter for resentencing to allow the trial court to revisit its grant of mandatory supervision and exercise its discretion accordingly. We agree with the People.
In Nasalga, supra, 12 Cal.4th 784, the defendant pleaded guilty to grand theft and admitted the truth of a two-year enhancement under Penal Code section 12022.6, subdivision (b). (Nasalga, at p. 788.) The defendant was sentenced to the substantive offense under the plea bargain and to the enhancement outside the plea bargain after the trial court made certain factual findings. (Id. at p. 798.) Based on a change in the law, the defendant was entitled to have the two-year sentence on the enhancement reduced to one year. (Id. at pp. 797-798.) Under these circumstances, the court concluded that a remand for resentencing would serve no purpose because the sentence on the substantive offense was part of a plea bargain, nothing needed to be proved at a hearing, and the defendant was entitled to the sentence reduction on the enhancement based on the change in the law. (Id. at p. 798.)
In contrast here, Kelly was not sentenced as part of a plea bargain. Rather, the trial court exercised its discretion at sentencing to give Kelly a split sentence, allowing him two years under mandatory supervision of the probation department. Under these circumstances, we remand for resentencing to permit the trial court to reconsider its sentencing choices given the changed circumstances. (People v. Calderon (1993) 20 Cal.App.4th 82, 88 ["It is perfectly proper for [the appellate] court to remand for a complete resentencing after finding an error with respect to part of a sentence and just as proper for the trial judge to reimpose the same sentence in a different manner."]; People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [while the "trial court is entitled to reconsider its entire sentencing scheme [,] . . . appellant may not be sentenced on remand to a term in excess of his original sentence"].)
DISPOSITION
Kelly's sentence is reversed and the matter is remanded to the trial court with directions to strike the Health and Safety Code section 11370.2, subdivision (b) enhancements and resentence Kelly. In all other respects, the judgment is affirmed.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.