Opinion
C090888
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. CHARLES RAYMOND MILLER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CR001453)
A trial court sentenced defendant Charles Raymond Miller to six years in state prison, including one year for each of three prior prison term enhancements. Defendant contends the prior prison term enhancements should be vacated based on the retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.), which the People concede. We agree with the parties, modify the judgment to strike the enhancements, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant drove away from a routine traffic stop and led police on a 26-mile chase at speeds of up to 90 miles per hour. He pleaded guilty to one count of driving recklessly while evading a peace officer (Veh. Code, § 2800.2; count one) and admitted three prior prison terms under Penal Code section 667.5, subdivision (b). The prior prison terms were for a 1997 conviction for transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), a 2010 conviction for resisting an executive officer (§ 69), and a 2016 conviction for driving under the influence of drugs (former Veh. Code, § 23152, subd. (e)). The trial court sentenced defendant to six years in state prison, including the three-year upper term on the count of conviction and one year for each of the three prior prison term enhancements.
Further undesignated statutory references are to the Penal Code.
Defendant timely appealed, challenging only his sentence, and did not seek a certificate of probable cause.
DISCUSSION
Defendant contends, and the Attorney General agrees, that recently enacted Senate Bill No. 136, which limits the prior offenses that qualify for a prior prison term enhancement under section 667.5, subdivision (b), applies retroactively to his case. We agree with the parties.
The Attorney General argues that "assuming the instant appeal is not dismissed" it should be remanded for resentencing, asserting for the first time in the brief's conclusion that defendant's failure to seek a certificate of probable cause rendered his challenge to his sentence non-cognizable. He refers to the "reasons discussed in Argument I" but that argument contains no such discussion. Because the argument is first articulated in the brief's conclusion, and lacks any headings, explanation, or citation to legal authority, we reject it without discussion. (People v. Turner (1994) 8 Cal.4th 137, 214 fn. 19.) --------
On October 8, 2019, the Governor signed Senate Bill No. 136, which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). The bill narrowed eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense. The amended provision states: "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).)
None of defendant's prior prison terms was for a sexually violent offense. Defendant is therefore entitled to the ameliorative benefit of the statute if Senate Bill No. 136 is applied retroactively. We agree with the parties that the amendments 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 a 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.) "A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so." (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Senate Bill No. 136 narrowed eligibility for a section 667.5, subdivision (b) prior prison term enhancement. 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 find that Estrada's inference of retroactive application applies. (Accord, People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Sen. Bill No. 136 applies retroactively to cases not yet final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].) Because the trial court imposed the maximum term, we need not remand, but instead shall modify the judgment to strike defendant's three one-year prior prison term enhancements. (See Lopez, at p. 342.)
DISPOSITION
The judgment is modified to strike defendant's three section 667.5, subdivision (b) prior prison term enhancements. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Krause, J.