Filed 2/2/18 P. v. Burnell CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

RITCHIE RENAY BURNELL,

Defendant and Appellant.


G055198

(Super. Ct. No. 17CF0498)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Vickie Hix, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as modified.
Amy Parekh, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Ritchie Renay Burnell was convicted of possession for sale of cocaine and possession of oxycodone. The trial court found true sentencing enhancement allegations that defendant had previously been convicted of Health and Safety Code violations.
After defendant was sentenced, Senate Bill No. 180 amended Health and Safety Code section 11370.2 to abolish the Health and Safety Code sentencing enhancement in this case. Defendant argues, and the Attorney General concedes, that Senate Bill No. 180 should be applied retroactively. We order that the true finding on the sentencing enhancement allegation be stricken. In all other respects, we affirm the judgment.

PROCEDURAL HISTORY
A jury found defendant guilty of violating Health and Safety Code sections 11351.5 (possession for sale of cocaine base; count 1), and 11350, subdivision (a) (possession of oxycodone; count 2). In a bifurcated bench trial, the court found true a Health and Safety Code section 11370.2, subdivision (a), sentencing enhancement allegation that defendant had previously been convicted of violating Health and Safety Code section 11352, subdivision (a) (sale or transportation for sale of a controlled substance).
The trial court sentenced defendant to the midterm of three years on count 1 and six months on count 2, to be served concurrently. The court stated that the midterm was the appropriate sentence because “[t]he mitigating factors, that being the small amount of narcotics and the aggravating factors, that being your prior history, are in balance.” The trial court struck the Health and Safety Code section 11370.2, subdivision (a) sentencing enhancement “in the interest of justice” because of the small amount of narcotics involved.

DISCUSSION
Health and Safety Code section 11370.2, subdivision (a), as amended by Statutes 2017, chapter 677, section 1, which was in effect when defendant was convicted and sentenced, read as follows: “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, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.” Senate Bill No. 180, signed into law on October 11, 2017, and effective January 1, 2018, narrowed the reach of Health and Safety Code section 11370.2, subdivision (a); that statute now imposes a sentencing enhancement only for previous convictions when the defendant induces a minor to be involved in the current sale. Had defendant been convicted of his crime after the effective date of the amendment to Health and Safety Code section 11370.2, the trial court could not have found the sentencing enhancement allegation true.
Defendant argues, and the Attorney General agrees, that the reduction in punishment evidenced by Senate Bill No. 180 should apply retroactively to defendant. Having reviewed the applicable authorities, we, too, agree.
Absent some indication to the contrary in the bill, courts presume that the Legislature intended amendments that reduce the punishment for a crime to apply retroactively in cases which are not yet final. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 742-748.)
Senate Bill No. 180 abolished certain sentencing enhancements, including the one found true in this case. Nothing in Senate Bill No. 180 indicates the Legislature intended prospective application only. (Stats. 2017, ch. 677, § 1.) Defendant’s conviction is not yet final. Accordingly, the true finding on defendant’s sentencing enhancement allegation must be stricken.
Defendant suggested in his opening brief that this court should remand the matter to the trial court for resentencing to strike the enhancement. The Attorney General objects. Because no fact finding is required by the trial court in order to strike the enhancement, “there is no basis for resentencing and, thus, under these circumstances, no purpose would be served by a remand.” (People v. Nasalga (1996) 12 Cal.4th 784, 798.)

DISPOSITION
The sentencing enhancement under Health and Safety Code former section 11370.2, subdivision (a), is ordered stricken. In all other respects, the judgment is affirmed.



FYBEL, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.