Opinion
C090026
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JASON DION RAY LENTZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF04527)
Appointed counsel for defendant Jason Dion Ray Lentz originally filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant then filed a supplemental brief asking this court to strike his two one-year prior prison term enhancements based on recent changes to the law. We requested supplemental briefing from the lawyers on this issue and they agree that defendant is entitled to benefit from the new law. Accordingly, we will strike the enhancements and remand the matter for resentencing.
BACKGROUND
Defendant was arrested on an outstanding warrant for failing to register as a sex offender, and law enforcement subsequently found methamphetamine in a container inside his car. He pleaded no contest to possession of a controlled substance with a prior drug-related conviction and admitted to serving two prior terms in prison. The parties agreed the probation report provided the factual basis for defendant's plea. The remaining charges and allegations were dismissed with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
The trial court sentenced defendant to the lower term of two years for an unrelated conviction in Sutter County, as the principal term. In the instant case, the court sentenced him to a consecutive term of eight months (one-third the middle term) plus two years for the prior prison terms, for an aggregate term of four years eight months in state prison. The court ordered defendant to pay various fines and fees (reaffirming the fines and fees previously imposed in the Sutter County case) and awarded custody credits in both cases.
Defendant appeals without a certificate of probable cause.
DISCUSSION
After counsel filed the opening brief pursuant to Wende, defendant filed a supplemental brief asking this court to consider the applicability of Senate Bill No. 136 to his two prior prison terms imposed under Penal Code section 667.5, subdivision (b). We requested briefing on this issue from defendant's counsel and the Attorney General. The lawyers agree with defendant that he is entitled to the benefit of the new law.
Undesignated statutory references are to the Penal Code. --------
On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). This bill narrowed the eligibility for the one-year prison prior enhancement to those who have served a prior prison sentence for a sexually violent offense, as defined. The amended provision states in pertinent part: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).)
We agree with the parties that Senate Bill No. 136's amendment should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 [noting "the role of the court is to determine the intent of the Legislature"].) Generally speaking, new criminal legislation is presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 " '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.) Conversely, the Estrada rule " 'is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express savings clause or its equivalent.' " (People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)
Here, Senate Bill No. 136 narrowed eligibility for a section 667.5, subdivision (b) prison prior enhancement and defendant's prior prison history no longer includes a qualifying offense. There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we agree that Estrada's inference of retroactive application applies. Defendant's judgment is not final. Accordingly, we modify the judgment to strike defendant's two one-year prison prior enhancements. As the sentence imposed was not the maximum sentence available, we remand for resentencing.
DISPOSITION
The two one-year prison prior enhancements imposed pursuant to section 667.5, subdivision (b), are stricken. As modified, the judgment is affirmed. The matter is remanded to the trial court for resentencing.
/s/_________
Duarte, J. We concur: /s/_________
Butz, Acting P. J. /s/_________
Hoch, J.