Opinion
A156208
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. LAVAL VALLARE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 18SF010365)
Laval Vallare was convicted of resisting an executive officer and misdemeanor battery. His six-year prison sentence includes two one-year enhancements imposed under Penal Code section 667.5, subdivision (b) (§ 667.5(b); statutory references are to this code). On appeal, Vallare contends these enhancements must be stricken because he no longer qualifies for them due to an amendment to section 667.5(b) that went into effect in January 2020. The Attorney General agrees and has stipulated to the immediate issuance of a remittitur. We shall remand this case for resentencing and issue the remittitur forthwith.
BACKGROUND
On August 28, 2018, Michael T. went to a public library to do research. As he made his way to a table, Michael was accosted by a man who said something like "I'm tired of you." The man disengaged after Michael said he was being confused with somebody else. Then the man physically assaulted another patron for no apparent reason. Later, when Michael stood to go the restroom, the man yelled at him, pinned him against the wall, pointed a pen or pencil near his face, and made bizarre accusations. After about a minute, the man released Michael and walked away. When police arrived, they were directed to Vallare who was in the back of the library. Vallare yelled expletives at the officers, who attempted to de-escalate the encounter. When Vallare took a "combative stance" with his fists clenched, the officers restrained and handcuffed him. Vallare continued to yell and repeatedly threatened the officers. For example, he told one officer he would kick his ass, and that he would get his gun and shoot the officer.
Vallare was charged with felony resisting an executive officer (§ 69) and misdemeanor battery (§ 242). The information alleged that Vallare had a prior strike conviction (§ 1170.12, subd. (c)) and served four prior prison terms within the meaning of former section 667.5(b).
In November 2018, a jury found Vallare guilty of both charges. After the jury was excused, the court found that the prior strike allegation and three of the section 667.5(b) allegations were true. The fourth section 667.5(b) allegation was dismissed at the People's request.
Vallare was sentenced on January 10, 2019. The court imposed an aggregate six-year prison term, consisting of a two-year midterm for resisting an officer, which was doubled because of the strike prior, and an additional two years for two of the section 667.5(b) enhancements. The court struck the third enhancement pursuant to section 1385 and imposed a concurrent sentence of 45 days in county jail for the misdemeanor battery.
DISCUSSION
When Vallare was sentenced, former section 667.5(b) required courts to impose an additional "one-year term for each prior separate prison term" except under specified circumstances. However, in January 2020, section 667.5(b) was amended to enhance punishment only for prior prison terms served "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . ."
The amendment to section 667.5(b) applies retroactively to Vallare because it went into effect before the judgment in his case became final. (In Re Estrada (1965) 63 Cal.2d 740.) Under the Estrada rule, " 'when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature.' " (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) " '[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.' " (People v. Vieira (2005) 35 Cal.4th 264, 306.)
Here, Vallare's prior prison terms were not for sexually violent offenses. Therefore, the parties agree that the two one-year sentence enhancements imposed under section 667.5(b) must be stricken. (See e.g. People v. Winn (2020) 44 Cal.App.5th 859, 872.) The parties also agree that this case must be remanded for resentencing to allow the court to exercise its sentencing discretion in light of changed circumstances. (See People v. Navarro (2007) 40 Cal.4th 668, 681; People v. Buycks (2018) 5 Cal.5th 857, 893-896.)
DISPOSITION
This case is remanded for resentencing with directions to strike the two section 667.5(b) enhancements. The judgment is otherwise affirmed. Upon stipulation of the parties, the remittitur will be issued forthwith.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.