Filed 6/1/22 P. v. Mendez CA5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Heather Mardel Jones, Judge.

Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

This matter was transferred to us from the California Supreme Court with directions to vacate our prior nonpublished decision in People v. Mendez (June 15, 2021, F079853) 2021 Cal.App. Unpub. Lexis 3859 (Mendez I), and reconsider the cause in light of Senate Bill No. 483 (2021–2022 Reg. Sess.) (Senate Bill 483). (Stats. 2021, ch. 728, § 1, 3.) As discussed below, we shall remand the matter for resentencing under Penal Code section 1171.1, added by Senate Bill 483.[1]

PROCEDURAL HISTORY

On March 11, 2017, officers with the Fresno Police Department searched defendant Marco Antonio Mendez’s vehicle and arrested him after locating a loaded firearm and a box of ammunition.[2] Defendant was subsequently charged by information filed August 27, 2018, with possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1), carrying a loaded firearm in public (§ 25850, subd. (a); count 2), carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count 3), and possession of ammunition by a felon (§ 30305, subd. (a)(1); count 4). The information also alleged two prior prison term enhancements pursuant to section 667.5, former subdivision (b).

On July 22, 2019, defendant pleaded no contest to count 1 and admitted one prior prison term allegation in exchange for dismissal of the remaining counts and the second prior prison term allegation, and a stipulated prison term of three years. On August 19, 2019, the trial court sentenced defendant to the middle term of two years on count 1 plus an additional one year for the prior prison term enhancement, in accordance with the terms of the plea bargain. The court also imposed a restitution fine of $300 under Penal Code section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300 under Penal Code section 1202.45, subdivision (a), suspended; a court operations assessment of $40 under Penal Code section 1465.8; and a court facilities assessment of $30 under Government Code section 70373.

Defendant advanced one claim on appeal. He requested that we vacate the one-year prior prison term enhancement under Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136), which became effective January 1, 2020.

The People agreed that in light of Senate Bill 136, the prior prison term enhancement must be stricken. However, they requested the matter be remanded to allow the trial court to withdraw its approval and the prosecutor to withdraw from the negotiated plea agreement, pursuant to People v. Stamps (2020) 9 Cal.5th 685 (Stamps) and this court’s decision in People v. Hernandez (2020) 55 Cal.App.5th 942, review granted January 27, 2021, S265739 and transferred December 22, 2021, with instructions to vacate opinion and reconsider matter in light of Senate Bill 483 and limiting citation to potentially persuasive value only (Hernandez).

In Mendez I, we found defendant was entitled to relief under Senate Bill 136 and we vacated his sentence. We remanded the matter to the trial court with instructions to strike defendant’s admission to the one-year prior prison term enhancement allegation and the one-year term imposed, and to conduct further proceedings consistent with Stamps and Hernandez.

The California Supreme Court granted review in Mendez I and has now transferred the matter back to us with directions to vacate our opinion and reconsider the cause in light of the enactment of Senate Bill 483. We do so now.

Supplemental briefing is complete, and the parties agree that defendant is entitled to relief under Senate Bill 483 and that the appropriate remedy is remand for further proceedings under section 1171.1. We agree and shall strike the prior prison term enhancement, vacate defendant’s sentence, and remand the matter for resentencing.

DISCUSSION

Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant here, trial courts are required to impose a three-year sentence for each prior, separate prison term served by the defendant for a violent felony where the current offense is also a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant to former subdivision (b) of section 667.5 and subject to exceptions not relevant here, trial courts are required to impose an additional one-year term for each prior, separate prison term or county jail felony term. As amended by Senate Bill 136, subdivision (b) of section 667.5 limits imposition of the additional one-year term to each prior, separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). Defendant’s prior conviction for assault by means of force likely to produce great bodily injury, in violation of section 245, subdivision (a)(4), is not a qualifying offense under section 667.5, subdivision (b), as amended.

The Legislature recently enacted Senate Bill 483, effective January 1, 2022, which provides, “The Legislature finds and declares that in order to ensure equal justice and address systemic racial bias in sentencing, it is the intent of the Legislature to retroactively apply Senate Bill 180 of the 2017–18 Regular Session and Senate Bill 136 of the 2019–20 Regular Session to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements. It is the intent of the Legislature that any changes to a sentence as a result of the act that added this section shall not be a basis for a prosecutor or court to rescind a plea agreement.” (Legis. Counsel’s Dig., Sen. Bill 483 (2021–2022 Reg. Sess.) Stats. 2021, ch. 728, § 1, p. 2.)

Senate Bill 483 added section 1171.1 to the Penal Code, which provides, “Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” (Id., subd. (a).) Further, “[r]esentencing … shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.” (Id., subd. (d)(1).)

The parties agreed that Senate Bill 136 applied retroactively in this case under the Estrada[3] presumption (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342), and there is no dispute that defendant is entitled to application of Senate Bill 483. Therefore, we shall strike the prior prison term enhancement and remand the matter for resentencing in accordance with section 1171.1.

DISPOSITION

The judgment is modified to strike the prior prison term enhancement, defendant’s sentence is vacated, and the matter is remanded for resentencing consistent with section 1171.1. In all other respects, the judgment is affirmed.

* Before Poochigian, Acting P.J., Peña, J. and Meehan, J.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] The facts underlying defendant’s crimes are not relevant to the issues raised on appeal, and, therefore, we do not summarize them further.

[3] In re Estrada (1965) 63 Cal.2d 740, 744–745 (Estrada).