Opinion
H046515
02-21-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO VILLA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 18CR03273)
Antonio Villa was convicted following a jury trial of corporal injury on a spouse with a prior spousal battery conviction (Pen. Code, § 273.5, subd. (f)(1)). He was sentenced to 10 years in prison, including two consecutive years for having served prior prison terms. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code.
On appeal, Villa asserts Senate Bill No. 136, which amends section 667.5, subdivision (b), to allow an enhanced sentence only in cases where the defendant served a prior prison term for a sexually violent offense, applies retroactively to his case. We agree, and strike Villa's prior prison enhancements.
I. STATEMENT OF THE CASE
The underlying facts of this case are omitted because they are not relevant to the issue on appeal.
Following a jury trial in September 2018, Villa was convicted of Count 1—spousal battery causing corporal injury with a prior conviction of spousal battery (§ 273.5, subd. (f)(1)), following a jury trial. The trial court found Villa had been convicted of a prior strike (§ 667, subds. (b)-(i)), and that he had served three prior prison terms (§ 667.5, subd. (b)).
Villa was sentenced in December 2018, to an aggregate term of 10 years made up of the middle term of four years, doubled to eight years because of the strike conviction for Count 1, and two consecutive years for two of his prison priors. The trial court imposed and stayed one year for Villa's third prison prior pursuant to section 654.
On December 7, 2018, Villa filed a timely notice of appeal.
II. DISCUSSION
At the time of Villa's conviction in December 2018, section 667.5, subdivision (b), mandated that a one-year sentence enhancement be imposed for each prior prison term he had served. Senate Bill No. 136 (2019-2020 Reg. Sess.), amended section 667.5, subdivision (b), to provide that the sentence enhancement shall be imposed only where the defendant has a prior conviction of "a sexually violent offense . . . ." The amendment was signed by the Governor on October 8, 2019, and took effect on January 1, 2020. Villa's judgment was not final before the effective date of the amendment.
Villa and the Attorney General agree that the changes effected by Senate Bill No. 136 should be applied retroactively in this case. Where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 (Estrada) " '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.' [Citations.]" (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 208.) 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.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.) Nothing in the amendment set forth in Senate Bill No. 136 indicates the Legislature intended it to apply only prospectively; therefore, Estrada's inference of retroactively applies. (People v. Jennings (2019) 42 Cal.App.5th 664, 682 (Jennings).)
The effect of Senate Bill No. 136 is to reduce the punishment imposed where the defendant in a criminal case has served a prior prison term for an offense that is not a sexually violent. This change rendered many individuals ineligible for the enhancement, including Villa, who served prior prison terms for inflicting corporal injury on a spouse (§ 273.5, subd. (a)), and second degree robbery (§ 211), which are not sexually violent offenses. Therefore, Villa's three one-year prior prison terms may no longer be used to enhance his sentence, and must be stricken.
Villa urges us to strike the enhancements, whereas the Attorney General asks that we remand the matter for the trial court to resentence Villa. We agree with the Attorney General. Because the trial court did not impose the maximum possible sentence, the trial court could exercise its discretion to reassess Villa's total sentence on remand. (See People v. Lopez (2019) 42 Cal.App.5th 337, 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion" due to Senate Bill No. 136]; People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 ["Because the resentencing court had imposed the maximum possible sentence, regardless of whether the two-year on-bail enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew"].)
We therefore conclude remand is appropriate for the trial court to resentence Villa in light of Senate Bill No. 136. (See Jennings, supra, 42 Cal.App.5th at p. 667 [remanding for resentencing in part because defendant was entitled to have enhancements stricken under Senate Bill No. 136].)
III. DISPOSITION
We reverse the judgment and remand the matter for the trial court to strike the three, one-year prior prison term enhancements imposed under section 667.5, subdivision (b), and resentence Villa.
The trial court is directed to prepare an amended abstract of judgment reflecting Villa's new sentence, and forward it to the Department of Corrections and Rehabilitation.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.