Filed 4/4/18 In re Coon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re JAMES D. COON

on

Habeas Corpus.
D073583

(San Diego County
Super. Ct. No. SCE359655)

ORIGINAL PROCEEDING in habeas corpus. Relief granted.

Joanna Rehm, under appointment by the Court of Appeal, for petitioner.

Xavier Becerra, Attorney General, and Marilyn L. George, Deputy Attorney General, for respondent.
James D. Coon is currently serving a jail sentence that includes an enhancement for a prior conviction. He seeks to vacate the enhancement based on a recent statutory amendment that removed the offense of which Coon had been convicted from the list of offenses that require imposition of the enhancement. The People concede Coon is entitled to this relief. We therefore grant the relief and direct the superior court to resentence Coon.
BACKGROUND
A jury found Coon guilty of manufacturing concentrated cannabis (Health & Saf. Code, § 11379.6, subd. (a)) and possession of methamphetamine for sale (id., § 11378). Coon admitted an allegation he had a prior conviction of possession of methamphetamine for sale. On May 9, 2017, the superior court imposed a split sentence of two years in jail followed by three years of mandatory supervision on the conviction of the manufacturing concentrated cannabis (id., § 11379.6, subd. (a); Pen. Code, § 1170, subd. (h)(5)), a concurrent two-year jail term on the conviction of possession of methamphetamine for sale (Health & Saf. Code, § 11378; Pen. Code, § 1170, subd. (h)(1)), and a consecutive three-year jail term for the prior conviction (Health & Saf. Code, former § 11370.2, subd. (c), as amended by Stats. 1998, ch. 936, § 1). Coon appealed the judgment of conviction, and his appeal is currently pending in this court (No. D072168).
On January 1, 2018, a statutory amendment took effect that removed possession of a controlled substance for sale from the list of prior conviction offenses that require imposition of the three-year enhancement. (Health & Saf. Code, § 11370.2, subd. (c), as amended by Stats. 2017, ch. 677, § 1.) Coon petitioned this court for habeas corpus relief, claiming that as an ameliorative measure the amendment applies to his sentence and requires vacatur of the three-year enhancement, and he needs writ relief because he is scheduled to start serving time on the enhancement before his appeal will be decided. In an informal response solicited by this court, the People concede Coon is entitled to vacatur of the enhancement, and contend he should be resentenced. In his reply, Coon asks this court to strike the enhancement and to direct the superior court to prepare an amended abstract of judgment reflecting that striking, or, alternatively, to stay the related pending appeal and to direct the superior court to resentence him forthwith.
DISCUSSION
We agree with the parties the three-year enhancement imposed for Coon's prior conviction of possession of methamphetamine for sale must be vacated. A statutory amendment that lessens punishment generally applies to a defendant convicted of an offense before passage of the amendment if the judgment of conviction is not final. (In re Estrada (1965) 63 Cal.2d 740, 745.) We recently held the Estrada rule applies to the amendment of Health and Safety Code section 11370.2, subdivision (c). (People v. Millan (2018) 20 Cal.App.5th 450, 455.) We vacated the defendant's sentence and remanded the matter to the superior court with directions to strike the enhancements and to resentence the defendant. (Id. at p. 456.) Coon is entitled to the same relief, and we may grant it without issuance of an order to show cause because the People have conceded its propriety. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.) There is no need to stay the related pending appeal. Once Coon is resentenced, he may dismiss his appeal from the prior judgment (which will have been vacated) and appeal the judgment resentencing him.
DISPOSITION
The request for relief is granted. The superior court is directed to strike the three-year enhancement imposed under Health and Safety Code section 11370.2, subdivision (c), to vacate the sentence, and to resentence Coon. This decision shall be final in this court upon filing. (Cal. Rules of Court, rule 8.385(b)(3)(A); People v. Romero, supra, 8 Cal.4th at p. 740, fn. 7.)

IRION, J.

WE CONCUR:



HALLER, Acting P. J.



DATO, J.