Filed 12/17/19 P. v. Darbinyan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

KHACHIK DARBINYAN,

Defendant and Appellant.

D075089

(Super. Ct. No. SCN380114)

APPEAL from a judgment of the Superior Court of San Diego County, Daniel S. Belsky, Judge. Affirmed as modified.

Rachel M. Ferguson, under appointment of the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.

Khachik Darbinyan was charged with burglary (count 1; Pen. Code, § 459) and grand theft of personal property (count 2; § 487, subd. (a)) for stealing over $57,000 worth of electronics merchandise from a computer store. Before opening statements in the trial, he stipulated that he had previously served a one-year prison term. The jury found him guilty on count 2, and the court sentenced him to three years for grand theft and an additional one year for the prison prior.

On appeal, Darbinyan requests we strike the one-year prison sentencing enhancement for the prison prior in light of Senate Bill No. 136 (Senate Bill 136). The People concede that Senate Bill 136 is applicable and agree the one-year sentence should be struck. We will order the one-year enhancement imposed under section 667.5 be struck.

FACTS

The details of the underlying crimes are not relevant to the disposition in this matter. At issue is the propriety of the one-year sentence imposed as a result of Darbinyan’s admission and stipulation that he previously served a prison prior pursuant to sections 667.5, subdivision (b) and 668. Although Darbinyan initially argued on appeal that the trial court violated his due process rights because it did not advise him of the potential consequences for making such an admission, as we explain, that claim has become moot in light of Senate Bill 136, which compels us to strike the challenged sentencing enhancement here.

DISCUSSION

Senate Bill 136 was enacted October 8, 2019 and becomes effective January 1, 2020. (People v. Camba (1996) 50 Cal.App.4th 857, 865 [statute enacted at regular session of Legislature generally becomes effective on January 1 of year following its enactment].) Prior to January 1, 2020, section 667.5, subdivision (b) requires trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant served a separate prior prison term and had not remained free of custody for at least five years. (§ 667.5, subd. (b).) Effective January 1, 2020, Senate Bill 136 amends section 667.5, subdivision (b) by limiting the one-year enhancement to prior prison terms to sexually violent offenses, as defined by Welfare and Institutions Code, section 6600, subdivision (b).) (Stats. 2019, ch. 590, § 1; Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a); Camba, at p. 865.)

When the Legislature amends a statute so that it lessens the punishment, “[t]he 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.” (In re Estrada (1965) 63 Cal.2d 740, 745.) Under the Estrada rule, ” ‘we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.’ ” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195.) “The Estrada rule also applies to statutory amendments reducing the penalty for, or allowing a court to strike, an enhancement.” (People v. Jennings (Nov. 26, 2019) ___ Cal.App.5th ____ [2019 Cal.App. LEXIS 1180, p. *30] (Jennings).) A judgment is not final in this context as long as courts may still provide a remedy on direct review. (In re Pine (1977) 66 Cal.App.3d 593, 594.)

As we recently explained in Jennings, “[b]y eliminating section 667.5, subdivision (b) enhancements for all prior prison terms except those for sexually violent offenses, the Legislature clearly expressed its intent in Senate Bill No. 136 to reduce or mitigate the punishment for prior prison terms for offenses other than sexually violent offenses. [Citation.]” (Jennings, supra, ___ Cal.App.5th ____ at pp.*30-31.)

Darbinyan’s one-year enhancement under section 667.5, subdivision (b) was based on a prior conviction under section 646.9. Senate Bill 136 has eliminated section 646.9 as a qualifying offense for an enhancement under section 667.5, subdivision (b). Additionally, Darbinyan’s case is not final. Thus, he is entitled to the ameliorative benefit of the amendment to section 667.5, subdivision (b). Accordingly, we will strike the one-year section 667.5, subdivision (b) prior prison enhancement, which the court imposed for a prior prison term for an offense other than a sexually violent offense. (§ 1260 [granting appellate court power to reduce punishment imposed].)

DISPOSITION

The defendant’s one-year section 667.5, subdivision (b) prior prison term is struck. We direct the trial court to amend the abstract of judgment accordingly. In all other respects, the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

DATO, J.

GUERRERO, J.