Filed 9/26/18 P. v. Singh CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. RAVI KUMAK SINGH, Defendant and Appellant.

H045340 (Santa Clara County Super. Ct. No. C1372041)

Defendant Ravi Kumak Singh pleaded no contest to twenty counts, including multiple counts of robbery, possession of a firearm by a felon, possession of ammunition by a felon, battery causing great bodily injury, and participating in a criminal street gang. He admitted numerous enhancements. The trial court imposed a total term of 36 years. This sentence included terms totaling 13 years four months based on numerous firearm enhancements under Penal Code section 12022.53, subdivision (b).[1]

Singh contends we must remand to the trial court for resentencing because his case is not final on appeal and because the Legislature subsequently amended section 12022.53 to grant trial courts the discretion to strike or dismiss firearm enhancements that would otherwise be imposed under that section. He contends this amendment should be retroactively applied to his case under In re Estrada (1965) 63 Cal.2d 740 (Estrada). The Attorney General concedes.

We accept the Attorney General’s concession. We will reverse the judgment and remand to the trial court for the purpose of allowing the trial court to consider whether to strike the firearm enhancements under the newly amended section 12022.53.

1. Background

In 2013, Singh committed several armed robberies in San Jose. The specific facts of the offenses are immaterial here.

In 2015, the prosecution charged Singh by information with 20 counts: Counts 1 through 6, 8 through 10, 12, 13, and 15—robbery (§§ 211-212.5, subd. (c)); count 7—attempted robbery (§§ 664, 211- 212.5, subd. (c)); counts 11, 16, 17—possession of a firearm by a felon (§ 29800, subd. (a)(1)); count 14—battery causing great bodily injury (§§ 242, 243, subd. (d)); counts 18 and 19—possession of ammunition by a felon (§ 30305, subd. (a)(1)); and count 20—participation in a criminal street gang (§ 186.22, subd. (a)). The information further alleged numerous enhancements, including 12 allegations that Singh personally used a firearm in the commission of the offenses under section 12022.53, subdivision (b).

Singh pleaded no contest to all counts and admitted all allegations. The trial court imposed a total term of 36 years, including 13 years four months based on the firearm enhancements.

2. Discussion

Singh contends we must remand to the trial court for resentencing because, after the trial court imposed the above sentence, the Legislature amended section 12022.53 to grant trial courts the discretion to strike or dismiss firearm enhancements. He contends this change in law must be applied to his case under the retroactivity doctrine of Estrada, supra, and its progeny. The Attorney General concedes and agrees that we must remand to the trial court for the limited purpose of resentencing.

We accept the Attorney General’s concession. At the time of sentencing in this case, section 12022.53, subdivision (h) provided, “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” (Former § 12022.53, subd. (h); see Stats. 2010, ch. 711, § 5.) Section 12022.53 was amended effective January 1, 2018, and subdivision (h) now provides: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, § 2.)

Under the retroactivity principles of Estrada and its progeny, this change in law applies retroactively to Singh’s sentence, which is not yet final. The California Supreme Court held in Estrada that “[w]hen 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. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Estrada, supra, 63 Cal.2d at p. 745.) This exception applies when a statutory amendment gives the trial court discretion to impose a lower sentence. (People v. Francis (1969) 71 Cal.2d 66, 75-78.)

Accordingly, we will reverse the judgment and remand the matter to allow the trial court to consider whether to strike the section 12022.53, subdivision (b) enhancement allegations under section 1385.

3. Disposition

The judgment is reversed and the matter is remanded for the purpose of allowing the trial court to consider whether to strike any of the Penal Code section 12022.53 enhancements under Penal Code section 1385. If the trial court strikes any of the Penal Code section 12022.53 enhancements, it shall resentence Singh. If the trial court does not strike any of the Penal Code section 12022.53 enhancements, it shall reinstate the sentence.