Opinion
C089011
06-16-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN HARRIS MACDONALD, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 18CF07560, 17CF04355)
Defendant John Harris MacDonald pleaded no contest to unlawfully taking or driving of a motor vehicle, with a prior conviction for unlawfully taking or driving of a motor vehicle, and he admitted a prior prison term enhancement allegation. In a separate case, he pleaded no contest to possessing a controlled substance in jail. The trial court sentenced him to an aggregate term of six years, including one year for the prior prison term enhancement.
Defendant now contends we should strike the one-year prior prison term enhancement in light of newly enacted Senate Bill No. 136 (2019-2020 Reg. Sess.), which was effective January 1, 2020 (Senate Bill 136) and which limits the offenses that qualify for the enhancement. Agreeing with defendant, we will modify the judgment to strike the prior prison term enhancement and affirm the judgment as modified.
BACKGROUND
The facts underlying defendant's convictions are not relevant to the issue raised on appeal. In December 2017, in a global resolution of a number of cases including case No. 17CF04355, defendant pleaded no contest to felony unlawfully taking or driving of a motor vehicle, with a prior conviction for unlawfully taking or driving of a motor vehicle. (Veh. Code, § 10851/ Pen. Code, § 666.50.) Defendant also admitted a prior prison term enhancement allegation. (§ 667.5, subd. (b).) The parties agreed defendant's maximum sentence would be five years. Remaining charges, enhancements, and cases were dismissed with a Harvey waiver. The trial court sentenced defendant to an aggregate term of five years, including one year for the prior prison term enhancement. The trial court ordered the term served as a split sentence, with the first 731 days served in county prison and the remainder served on mandatory supervision.
Undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754. --------
In case No. 18CF07560, defendant subsequently pleaded no contest to possessing methamphetamine in jail. (§ 4573.6, subd. (a).) The parties agreed defendant's maximum term would be six years.
The trial court sentenced defendant to an aggregate term of six years, consisting of the following: It designated the conviction in case No. 17CF04355 as the principle term and sentenced defendant to the upper term of four years for that conviction, plus one year for the prior prison term enhancement; and in case No. 18CF07560, the trial court imposed a consecutive term of one year (one-third the midterm).
DISCUSSION
Defendant contends we should strike his one-year prior prison term enhancement in light of Senate Bill 136. Senate Bill 136 amended section 667.5, subdivision (b) to eliminate the one-year prior prison term enhancement for most prior convictions. (Sen. Bill 136, § 1.) Because defendant's judgment is not yet final, we agree with the parties that the amended law applies to him retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when statute takes effect].)
The People nevertheless argue the matter should be remanded for resentencing. However, because the term would necessarily remain the same even if we were to remand the matter, we will modify the judgment to strike defendant's one-year prior prison term enhancement.
DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b). The judgment is affirmed as modified. The trial court shall prepare an amended abstract of judgment reflecting the judgment as modified, and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
BLEASE, J.