Opinion
D073092
02-11-2020
THE PEOPLE, Plaintiff and Respondent, v. BRANDON A. SMITH, Defendant and Appellant.
Bruce L. Kotler, 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, Allison V. Acosta and Junichi P. Semitsu, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN369504) APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Amour, Judge. Affirmed and remanded with directions. Bruce L. Kotler, 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, Allison V. Acosta and Junichi P. Semitsu, Deputy Attorneys General for Plaintiff and Respondent.
Defendant Brandon A. Smith entered into a plea agreement to plead guilty to one drug sale offense and to admit that he had a prior drug conviction. The stipulated sentence included a term of three years for the prior drug conviction. The Legislature subsequently curtailed the prior drug enhancement such that it no longer applies to Smith. The People concede that Smith is eligible for the benefit of the amended statute. In response to a companion petition for writ of habeas corpus, case No. D075438, the People did not oppose Smith's request for relief from his failure to timely request a certificate of probable cause.
We remand the case with directions to the trial court to vacate the enhancement.
BACKGROUND
Smith was charged with two counts of transportation of controlled substances for sale (Health & Saf. Code, §§ 11352, subd. (a) & 11379, subd. (a)), two counts of possession of controlled substances for sale (§§ 11351 & 11378), and three misdemeanor counts of possession of controlled substances (§§ 11350, subd. (a), (two counts) & 11377, subd. (a), (one count)). It was further alleged with respect to the four sale charges that Smith had three prior felony drug convictions within the meaning of former section 11370.2 (Stats. 1998, ch. 936, § 1, eff. Sept. 28, 1998), each of which added a three-year enhancement to the charge. It was also alleged with respect to all counts that Smith had four prior convictions for which he had served a prison sentence (Pen. Code, § 667.5, subd. (b)).
Further statutory references are to the Health and Safety Code unless otherwise specified. --------
On August 16, 2017, Smith pleaded guilty to one count of a violation of section 11352, subdivision (a) and admitted that he had a prior drug conviction for the same violation. In return, the People agreed to a stipulated sentence of eight years in local prison and dismissed the remaining charges and allegations.
On October 5, 2017, the court sentenced Smith to the stipulated term of eight years, imposing the upper term of five years on count one, transportation of heroin for sale, enhanced by a three-year consecutive term for his prior drug felony conviction. Smith also received two one-year consecutive terms on another case set for sentencing along with this one.
The Governor signed legislation on October 11, 2017, that amended section 11370.2, by sharply curtailing the types of prior drug felonies that could be used to enhance a current drug sales conviction. The legislation went into effect on January 1, 2018. A prior conviction for a violation of section 11352 no longer triggers an enhancement for a prior drug conviction.
Smith filed a notice of appeal on November 7, 2017. On March 1, 2019, Smith filed a petition for writ of habeas corpus seeking relief from his counsel's failure to file a request for a certificate of probable cause. We ordered these two cases considered together.
DISCUSSION
1. Senate Bill No. 180, Which Removed Sentencing Enhancements Based Upon Most Prior Felony Drug Offenses, Applies Retroactively to Plea Bargains
Smith contends that his sentence on the prior drug conviction enhancement must be vacated because the law no longer authorizes that enhancement. The People concede that the new amendments apply to Smith. We accept the concession of the People that the recently amended section 11370.2 applies retroactively to Smith because his case is not yet final on appeal. This accords with our prior ruling in People v. Wright (2019) 31 Cal.App.5th 749, 752 (Wright). We held in Wright that a sentence enhancement under former section 11370.2 had to be vacated pursuant to the changes to the law, even though the three-year enhancement was part of a stipulated sentence that was negotiated as part of a plea deal. (Id. at pp. 752, 755-756.)
Former section 11370.2 provided three-year sentence enhancements for prior felony convictions of several drug offenses. Senate Bill No. 180, effective January 1, 2018, amended that section to provide that the three-year sentence enhancement applies only when the prior offense was a violation of section 11380, which criminalizes the use of a minor to commit a drug offense. (§ 11370.2.) The sentencing enhancements based on prior violations of other drug statutes are no longer authorized. (See Wright, supra, 31 Cal.App.5th at p. 752, and People v. Millan (2018) 20 Cal.App.5th 450, 454.) Legislative changes that ameliorate or lessen punishment are retroactive to cases that are not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 745; Wright, supra, 31 Cal.App.5th at pp. 752-753; Millan, supra, 20 Cal.App.5th at pp. 455-456.) When a punishment is no longer authorized by law, the punishment must be stricken even though the defendant stipulated to the sentence as part of a plea bargain. (Wright, at p. 756.)
2. Certificate of Probable Cause
The People contend that even though Smith is entitled to relief, his appeal must be dismissed because he failed to obtain a certificate of probable cause. The People agree that Smith would be entitled to retroactive application of section 11370.2 if Smith had obtained a certificate of probable cause.
In the companion petition for writ of habeas corpus, the People did not oppose Smith's request for relief and conceded that Smith "has reasonable grounds to challenge the legality of his stipulated sentence on appeal." Accordingly, we granted the petition and deemed the certificate of probable cause to have been constructively filed. (See Wright, supra, 31 Cal.App.5th at p. 753 [court granted unopposed motion to deem the certificate of probable cause operative].)
DISPOSITION
We remand the matter to the superior court with direction to correct the sentence by vacating the three-year enhancement under former section 11370.2, subdivision (a). The superior court is directed to prepare and transmit to the San Diego County Sheriff an amended abstract of judgment reflecting the corrected sentence of five years in local custody. In all other respects, the judgment is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. GUERRERO, J.