Filed 9/6/18 P. v. Proper CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.

Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Stephen Ernest Proper was convicted of count I, fleeing a pursuing officer in violation of Vehicle Code section 2800.3; count II, evading an officer against traffic in violation of Vehicle Code section 2800.4; count III, transportation of a controlled substance in violation of Health and Safety Code[1] section 11352, subdivision (a); count IV, possession for sale of a controlled substance in violation of section 11379, subdivision (a); count V, transportation for sale of a controlled substance in violation of section 11351; count VI, possession for sale of a controlled substance in violation of section 11378; and count VII, possession of injection/ingestion device in violation of section 11364, subdivision (a). Appellant admitted a prior conviction for violating section 11378, and was subject to an enhancement pursuant to section 11370.2, subdivision (a), and Penal Code section 667.5, subdivision (b).[2]

On August 1, 2017, appellant was sentenced to five years for count I; three years for count II, which was stayed; five years for count III, which was stayed; one year each for counts IV and V to run consecutive to count one; three years for count VI, which was stayed; and one year for count VII to run concurrent to count I. Appellant was further sentenced to a three-year enhancement pursuant to section 11370.2, subdivision (a). The Penal Code section 667.5, subdivision (b) enhancement was stricken. Appellant was sentenced to a total aggregate term of 10 years.

On October 11, 2017, the Governor approved Senate Bill No. 180, which went into effect on January 1, 2018. (Stats. 2017, ch. 677, § 180, p. 5031.) This bill amends section 11370.2 to remove some statute violations which were formerly subject to a sentence enhancement, including section 11351, of which appellant was convicted. Following a timely notice of appeal, appellant argues that the amendment to section 11370.2 should apply retroactively, and under the amended version of the statute, the three-year enhancement does not apply to his case. The Attorney General concurs that appellant is entitled to retroactive application of amended section 11370.2.

As appellant’s case is not yet final, we agree that amended section 11370.2 applies to appellant’s case, reverse appellant’s sentence, and on remand, direct the trial court to strike the section 11370.2 enhancement and to resentence appellant.

DISCUSSION[3]

In August 2017, former section 11370.2, subdivision (a) (Stats. 1989, ch. 1245, § 1, pp. 4906-4907) read, “Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.” Because appellant admitted a prior conviction for violation of section 11378, he was then subject to the enhancement.

On October 11, 2017, Senate Bill No. 180 amended section 11370.2, subdivision (a)[4] (Stats. 2017, ch. 677, § 1, p. 503) to read, “Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11380, whether or not the prior conviction resulted in a term of imprisonment.” As such, appellant’s prior violation for section 11378 no longer subjects him to the three-year enhancement.

Generally, amendments to the Penal Code do not apply retroactively. (Pen. Code, § 3.) However, it has long been held that where a statute does not expressly prohibit retroactive application, “[i]f the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then … it, and not the old statute in effect when the prohibited act was committed, applies. (In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada).) “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. (Id. at p. 745.)

“A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari [with the United States Supreme Court] have expired.” (People v. Smith (2015) 234 Cal.App.4th 1460, 1465.)

We agree with the parties that the amended section 11370.2 applies retroactively to appellant’s case. The amended section clearly reduces the appellant’s penalty, as appellant no longer qualifies for the three-year enhancement. It is also undisputed that appellant’s judgment is not yet final, as it was pending on appeal when the amendment went into effect. Accordingly, Estrada applies, and requires the reversal of appellant’s sentence.

DISPOSITION

Appellant’s sentence is reversed and the matter is remanded to the trial court with directions to strike the Health and Safety Code section 11370.2, subdivision (a) enhancement, and to resentence appellant. In all other respects, the judgment is affirmed.