Filed 5/10/22 P. v. Houle CA1/3

(Opinion on transfer from Supreme Court)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

OPINION ON TRANSFER[1]

In 2019, Carl Lee Houle, Jr., pled no contest to unlawfully possessing

a concealed dirk or dagger (§ 21310), and he admitted having a prior strike conviction (§§ 667, 1170.12) and serving two prior prison terms (former § 667.5, subd. (b)). Pursuant to the negotiated disposition, the trial court sentenced Houle to six years in prison, which included two mandatory one-year prior prison term enhancements.

On appeal, Houle urged this court to strike the prior prison term enhancements in light of Senate Bill No. 136 (2019–2020 Reg. Sess.; Senate Bill 136), which amended section 667.5, subdivision (b), effective January 1, 2020. Senate Bill 136 eliminated section 667.5, subdivision (b) enhancements except for sexually violent offenses as defined in the Welfare and Institutions Code. (See People v. Lopez (2019) 42 Cal.App.5th 337, 340–341.) This court held Senate Bill 136 applied retroactively, and that remand was “appropriate in order for the trial court to strike the section 667.5, subdivision (b) enhancements.” (People v. Houle (2021) 64 Cal.App.5th 395, 398, review granted July 28, 2021 and cause remanded Apr. 20, 2022, S269337.) We also concluded Senate Bill 136 “rendered the parties’ plea bargain unenforceable, such that on remand the trial court must restore the parties to the status quo ante. [Citation.] The parties may enter into a new plea agreement, but, if they do, the trial court may not impose a longer sentence than [Houle’s] original six-year term.” (Houle, at p. 398.)

The California Supreme Court granted review, then transferred the matter to this court with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 483 (2020–2021 Reg. Sess.; Senate Bill 483), which was enacted while review was pending. (See People v. Houle, Apr. 20, 2022, S269337 [2022 Cal.App. Lexis 2292]; Stats. 2021, ch. 728.)

Senate Bill 483 added section 1171.1 to the Penal Code, effective January 1, 2022. (Stats. 2021, ch. 728, § 3.) Section 1171.1 does three

things. First, it invalidates prior prison term enhancements for nonsexually violent offenses imposed before January 1, 2020. (People v. Flores (2022) 77 Cal.App.5th 420, 443; see Couzens, Selected Changes to California Sentencing Laws Effective 2022 (Barrister Press 2021) pp. 59–62 (Couzens).) Second, section 1171.1 outlines a procedure for recalling and resentencing individuals with repealed sentencing enhancements. (Flores, at p. 443.) The statute provides a timeline for the California Department of Corrections and Rehabilitation (CDCR) to identify eligible inmates, and for the trial court to verify eligibility and conduct resentencing. (§ 1171.1, subds. (b), (c).) Individuals who have served their base term and any other enhancements and are currently serving a sentence based on an invalid section 667.5 enhancement are to be identified by March 2022 and resentenced by October 2022. (§ 1171.1, subds. (b)(1), (c)(1).) “[A]ll other individuals” must be identified by July 2022 and resentenced by December 2023. (Id., subds. (b)(2), (c)(2).) Third, section 1171.1 imposes various conditions on resentencing, among them that “[r]esentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.” (Id., subd. (d)(1); see also Flores, at p. 443 [Senate Bill 483 reflects legislative intent that changes to a sentence required by section 1171.1 are not a basis for rescinding a plea agreement].)

In a supplemental brief, the Attorney General concedes Houle’s prison prior enhancements are legally invalid — and that Houle is entitled to resentencing — under section 1171.1. But the Attorney General posits Houle is not “entitled to remand” at this time because he is currently serving the base term for the substantive offense to which he pled no contest. Thus, according to the Attorney General, Houle will “be part of the second group to be considered for relief” and his “case will be referred to the trial court” by July 2022 and “resolved” by December 2023.

Even if we accept the Attorney General’s premise — that Houle is in the second group of individuals eligible for relief and that his section 1171.1 resentencing must be completed by December 2023 — we find nothing in the plain language of the statute precluding the trial court from providing relief before that deadline. (§ 1171.1, subd. (c)(2); Couzens, supra, at p. 60 [“review and resentencing . . . are to be completed” by December 2023.) Thus, we decline the Attorney General’s invitation to do nothing merely because section 1171.1 identifies an outer limit for resentencing. Such an approach would waste resources, as it would require the CDCR to identify Houle as an individual eligible for relief, and obligate the trial court to verify that eligibility, when we have already done so. In our view, the better approach — one which avoids duplication of effort — is to remand for resentencing.

Having reached this result, we need not address the parties’ other arguments, including the import of legislative history and Houle’s contention that the statutory timelines do not apply to cases pending on appeal.

DISPOSITION

Our prior opinion is vacated. The two prior prison term enhancements imposed under former section 667.5, subdivision (b) are stricken, the sentence is vacated, and the matter is remanded to the trial court for resentencing consistent with section 1171.1.

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Rodríguez, J.

WE CONCUR:

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Tucher, P. J.

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Fujisaki, J.

A159055

[1] We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1, reciting only those facts necessary to resolve the issue raised. Undesignated statutory references are to the Penal Code.