Filed 12/16/19 P. v. Dazo CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR H. DAZO, JR.,

Defendant and Appellant.

C088790

(Super. Ct. No. CR166618)

This is the second appeal in this case.

Defendant Victor Dazo, Jr., originally appealed the judgment entered following his no contest plea to being a felon in possession of a firearm, driving under the influence, and a jury conviction for assault with a firearm. Defendant also admitted to having a blood-alcohol content over 0.15 percent and having served a prior prison term. A jury found true the special allegations that in committing the assaults with a firearm, defendant personally used a firearm. On appeal, defendant sought remand so that the trial court could consider striking the firearm enhancements as authorized by the passage of Senate Bill No. 620. We agreed and remanded the matter in an unpublished opinion filed July 11, 2018.

On remand, the trial court elected not to strike the firearm enhancements, leaving intact defendant’s original sentence of 13 years four months. Defendant timely appealed.

We appointed counsel to represent defendant in this new appeal. Counsel filed an opening brief that sets forth the relevant procedural history of the case and requested this court review the record and determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed, but to date, defendant has not done so.

We requested supplemental briefing to address the applicability of Senate Bill No. 136, given that defendant’s sentence included a consecutive one-year term for serving a prior prison term under Penal Code section 667.5, subdivision (b).

On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). This bill narrowed the eligibility for the one-year prison prior enhancement to those who have served a prior prison sentence for a sexually violent offense, as defined. The amended provision states in pertinent part: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended.” (§ 667.5, subd. (b).)

We agree with the parties that Senate Bill No. 136’s amendment should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 [noting “the role of the court is to determine the intent of the Legislature”].) Generally speaking, new criminal legislation is presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 “ ‘that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ ” (Lara, at p. 308.) Conversely, the Estrada rule “ ‘is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express savings clause or its equivalent.’ ” (People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)

Here, Senate Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b) prison prior enhancement, thus rendering ineligible many individuals, including defendant whose prior prison history no longer includes a qualifying offense. There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we find that Estrada’s inference of retroactive application applies. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to legislative changes to section 12022.6, subds. (a) and (b) enhancements].) Defendant’s judgment will not be final when the statute takes effect, thus entitling him to its benefits. (See People v. Vieira (2005) 35 Cal.4th 264, 305-306 [defendant entitled to retroactive application of criminal statute that takes effect during the time defendant has to appeal to the Supreme Court].) Accordingly, we will amend the judgment to strike defendant’s one-year prison prior enhancement.

DISPOSITION

We modify the judgment to strike defendant’s one-year prior prison enhancement imposed pursuant to section 667.5, subdivision (b). The superior court is directed to prepare an amended abstract of judgment and forward a certified copy thereof to the California Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

/s/

Robie, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Hoch, J.