Filed 12/19/19 P. v. Hyson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

SHARONEE HYSON,

Defendant and Appellant.

A153805

(Alameda County

Super. Ct. No. 17-CR-014060)

Sharonee Hyson was convicted by a jury of first-degree burglary (Pen. Code § 459), unlawful driving or taking of a vehicle (Veh. Code § 10851, subd. (a)), and two misdemeanor counts of fraudulent possession of personal information (§ 530.5, subd. (c)(1)). The trial court found that multiple enhancement allegations for prior convictions and prior prison terms were true and sentenced Hyson to seven years and six months in prison.

On appeal, Hyson contends the judgment must be reversed due to prosecutor misconduct and ineffective assistance of counsel. Alternatively, she seeks reversal of specific convictions due to jury instruction error and insufficiency of the evidence, and a stay of court fines and fees that were imposed without consideration of Hyson’s ability to pay them. Finally, Hyson contends that two prior prison-term sentence enhancements must be stricken due to an amendment to section 667.5, subdivision (b) (section 667.5(b)) that will become effective in January 2020. We reject all but one of Hyson’s contentions; we agree that the section 667.5(b) sentence enhancements must be stricken. Accordingly, we will remand this case for resentencing.

BACKGROUND

On March 31, 2017, Mr. W. reported to the San Francisco Police Department that his car had been stolen. That morning, Mr. W. discovered his Acura was missing from the spot where he had parked it a few days earlier. There were no electronics, mail, personal checks or driver’s licenses in his car when Mr. W. parked and locked it that last time.

On the afternoon of April 2, 2017, the Piedmont Police Department’s Automatic License Plate Reader (ALPR) identified the location of Mr. W.’s Acura, which was traveling near the intersection of Grand and Rose Avenues. Piedmont Police Officer Garcia, who was accompanied by a citizen “ride-along,” responded to the ALPR report. While en route, Garcia spotted the Acura travelling toward him on Grand Avenue. Just as Garcia was passing the Acura, it made a sharp right turn onto a side street. The sun was shining directly through the front window of the patrol car, but Garcia could see there was only one person in the Acura, and he thought the occupant appeared to be a black male with a short haircut. Garcia made a partial U-turn, and followed as the Acura driver made another right turn and then pulled over and stopped. Garcia parked behind the vehicle and activated his patrol car lights.

Because he was dealing with a stolen vehicle, Garcia began performing a high-risk felony traffic stop. He exited his patrol car, drew his gun but did not approach the Acura. Standing near his car, which was behind and partially to the left of the Acura, Garcia issued a command, telling the suspect something like “show your hands.” The driver looked back at Garcia, made eye contact and then “sped off at a high rate of speed.” Garcia decided not to chase the suspect due to safety concerns for other citizens. Minutes later, a broadcast from police dispatch reported that a vehicle crashed into a barrier a few blocks away. Garcia responded to that report, where he found the Acura parked near a pile of construction debris. The engine was on but there was no key in the ignition. There was garbage, food and miscellaneous electronics in the car and a backpack was on the ground nearby. Garcia began searching for the suspect in yards and at houses in the neighborhood.

Piedmont Police Officer Foster had also responded to the ALPR report about the stolen Acura. While en route, Foster saw Garcia following the Acura and followed behind. By the time Foster arrived at the location where the Acura pulled over, Officer Garcia was exiting his vehicle. Foster parked her patrol car behind Garcia’s, activated her lights and stayed in her car. The driver never turned around, but Foster could see that there was only one occupant. From the back, the suspect appeared to be a light-skinned black male with short hair or a shaved head who was wearing a tan shirt.

After the suspect fled and Officer Garcia put out an update that the Acura had been abandoned, Officer Foster began searching the area in her patrol car. At one point, Foster stopped to question some children playing in a yard. The children approached and as they spoke to Foster through her passenger window, a woman who came down the sidewalk behind them caught Foster’s attention. The woman was wearing a brown “boonie hat,” which had a wide brim and strings that could be pulled tight under the chin. She had a guitar case slung over her shoulder and there were tattoos on both her forearms. The woman made eye contact with Foster and then looked straight ahead and walked past the patrol car.

After speaking with the children, Foster drove past the woman again but concluded she had no ground to stop her because the original thought was that the suspect was a male and because the woman did not appear as though she had just been running through yards trying to evade the police. So Foster drove to the location where the Acura had been abandoned and joined Officer Garcia in his foot search of the neighborhood.

By that time, Piedmont Police Officer Jaime had also joined the search. While driving the area waiting for updates from other officers, Jaime saw a woman walking on San Carlos Avenue, wearing a “boonie-style khaki hat” and carrying a guitar case. Jaime also noticed a tattoo on the woman’s forearm. Although the woman caught Jaime’s attention, he did not consider her a suspect at that point.

Later, Jaime responded to a call from Mr. R., whose multi-level home was a short distance from the abandoned Acura. Another officer had previously notified Mr. R. that the police were searching his neighborhood and, after realizing that he had left doors opened downstairs, he wanted the police to search his home. When Officer Jaime noticed that Mr. R. had a number of musical instruments in his downstairs room, he asked if a guitar was missing, which led Mr. R. to discover that he was missing a guitar and a tan hat, both of which he kept near the door on the bottom level of his home.

Meanwhile, Officers Garcia and Foster completed their foot search of the neighborhood and returned to the abandoned Acura, where Foster heard about Mr. R.’s missing guitar and hat and reached the conclusion that the woman she had seen while talking with the children was their suspect. Then she helped Garcia conduct a full search of the Acura, where they found several electronic devices, including two Kindles and multiple cell phones. Some of the devices were on the ground outside the stolen vehicle. They also found several “identification” documents, including a “handful” of driver’s licenses that did not appear to belong to the registered owner of the vehicle. The backpack found near the car contained miscellaneous items, including a screwdriver, a medical prescription, and driver’s licenses in the names of a Ms. L. and a Mr. C., both of whom had ordered new licenses from the Department of Motor Vehicles but never received them.

The next day, Officer Foster was examining items recovered from the Acura when she discovered that a Facebook account had been left open on one of the Kindles. Foster recognized the account holder’s photograph as the woman with the guitar case and tattoos whom she had encountered the previous day. At that point, Foster booked the Kindle into evidence and recommended that Officers Garcia and Jaime be shown a photo lineup to see if they would select the Facebook account owner’s photograph as the suspect who they encountered the previous day.

Piedmont Police Officer Coffey administered a photo lineup to Garcia and Jaime, which included photographs of six individuals, including Hyson. Although Coffey had not participated in the on-scene investigation, he knew Hyson was a person of interest when he administered the lineups. Prior to viewing the lineup, Garcia had not previously seen a photograph of Hyson. However, Jaime happened to see Hyson’s photograph on Foster’s desk while walking through the office earlier in the day. Both Garcia and Jaime identified Hyson as the person they encountered the previous day.

Officers Garcia, Foster and Jaime all testified at Hyson’s jury trial. Garcia identified Hyson as the person who made eye contact with him before fleeing from the traffic stop in the stolen Acura. Foster identified Hyson as the woman with the guitar who made eye contact when she walked by Foster’s patrol car while Foster was talking with the neighborhood children. And Jaime identified Hyson as the woman he saw walking on the street with the guitar when he was searching for the suspect who abandoned the stolen Acura.

At trial, the prosecution also produced documentary evidence of the photo lineups and accompanying admonitions, which were published to the jury. While cross-examining the officers about their identifications of Hyson, defense counsel elicited testimony that it is customary for the Piedmont Police Department to administer double-blind lineups, which means that the administrator does not know who the suspect is in order to avoid inadvertently giving cues that might be suggestive.

The jury returned verdicts finding Hyson guilty of burglary of Mr. R.’s home, unlawful driving or taking of Mr. W.’s Acura, and two misdemeanor counts of fraudulent possession of the personal information of Ms. L. and Mr. C.

DISCUSSION

I. The Prosecutor’s Conduct

Hyson contends the prosecutor committed misconduct during his closing argument, which deprived her of her constitutional right to a fair trial. “ ‘A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.’ [Citation.] ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ [Citation.] ‘When attacking the prosecutor’s remarks to the jury, the defendant must show that, “[i]n the context of the whole argument and the instructions” [citation], there was “a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.” ’ ” (People v. Dalton (2019) 7 Cal.5th 166, 251–252.)

In this case, defense counsel did not object to many of the comments that Hyson now characterizes as improper. However, because Hyson makes the alternative claim that failure to object constituted ineffective assistance of counsel, we address her objections on their merits. Hyson contends the prosecutor made three types of improper argument, which we consider in the order that the remarks were presented to the jury.

A. Alleged Allusions to the Reasonable Doubt Standard

Prior to the attorneys’ opening statements, the trial court instructed the jury regarding the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt. The court reminded the jury of the prosecutor’s burden prior to closing arguments and gave another reasonable doubt instruction at the conclusion of those arguments. Hyson contends the prosecutor effectively contradicted these jury instructions by misstating the People’s burden during his closing argument to the jury.

A prosecutor commits misconduct when he or she “misstates the law by, for example, making remarks that would ‘absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.’ ” (People v. Potts (2019) 6 Cal.5th 1012, 1036.) The issue does not turn on the prosecutor’s intent or whether the comments can be construed as objectionable. Rather, the defendant claiming misconduct must establish a reasonable likelihood that the jury understood the remarks as diluting the People’s burden of proving guilt beyond a reasonable doubt. (Ibid.)

According to Hyson, the prosecutor misstated his burden of proof at the end of his initial closing argument, while summarizing the trial evidence. The prosecutor began this line of argument by stating: “Now, in conclusion this case has a substantial amount of direct evidence.” After recounting the officers’ direct testimony, the prosecutor stated: “As I’ve discussed, you can probably call it a night right there, but there’s still circumstantial evidence as well.” After highlighting some circumstantial evidence, the prosecutor argued that the evidence also showed the officers followed proper procedure and there was no reason to doubt their testimony. Finally, the prosecutor concluded: “And because there is substantial evidence, substantial direct evidence, substantial circumstantial evidence presented by the work of the officers, once you consider the evidence, I have no doubt you will return verdicts of guilty . . . .”

Hyson construes these remarks as an argument that a “conviction could be supported by merely substantial evidence.” According to Hyson, the prosecutor committed misconduct by invoking this “deferential” substantial evidence standard of review as it has nothing to do with the “more demanding” beyond a reasonable doubt standard. However, when the challenged remarks are considered in context it is not reasonably likely that the jury interpreted them the way Hyson does. The prosecutor was not discussing the reasonable doubt standard but instead was summarizing the trial evidence. He used the word “substantial” as a way to urge the jury to take account of both the direct evidence and the circumstantial evidence. The term was not related to a discussion of standards of proof or standards of review.

Hyson mistakenly relies on People v. Centeno (2014) 60 Cal.4th 659. In that case, the prosecutor used a hypothetical to explain the People’s burden of proof, which “strongly implied that the People’s burden was met if its theory was ‘reasonable’ in light of the facts supporting it.” (Centeno, at p. 671.) Making this argument to the jury was misconduct because it was reasonably likely that the jury construed the prosecutor’s depiction of the reasonable doubt standard in an improper way. Here though, when the prosecutor used the word “substantial” he made no mention of the “substantial evidence standard,” nor was he purporting to characterize the reasonable doubt standard. He was instead making a factual argument that the direct and circumstantial evidence presented at trial was “substantial” in the sense that it was “abundant” or “plentiful.” (Webster’s 3d New Internat. Dict. (2002) p. 2280.)

B. Commenting on the Absence of Defense Evidence

Hyson next contends the prosecutor repeatedly commented on the absence of defense evidence as part of a strategy to shift the burden to Hyson to prove her innocence while highlighting the fact that she had elected not to testify in her own defense. A prosecutor commits misconduct with remarks that misstate the law by placing on the defendant the burden of establishing a reasonable doubt as to her guilt. (People v. Marshall (1996) 13 Cal.4th 799, 831-832.) Moreover, “[t]he Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly, on a defendant’s decision not to testify on his own behalf.” (People v. Taylor (2010) 48 Cal.4th 574, 632.) The issue again is whether there is a “reasonable likelihood” the jury construed the remarks in these improper ways. (Marshall, at p. 831; Taylor, at p. 633.)

In this case, most of the prosecutor’s remarks about the absence of defense evidence were made during his rebuttal. The thrust of defense counsel’s closing argument had been that “[t]he government . . . arrested, charged and prosecuted the wrong person in this case.” Counsel argued that the police failed to conduct a competent investigation and that the police-officer witnesses who testified that Hyson committed these crimes were either lying or mistaken. Responding to this argument on rebuttal, the prosecutor stated: “Defense evidence. Where is the evidence this was not defendant?” The trial court sustained an objection that this statement was improper “burden shifting,” but the prosecutor responded that he had a right to “argue failure to call logical witness[es],” which led to a sidebar discussion between the court and counsel.

After the sidebar, the prosecutor continued his argument, pointing out that the defense had resources for gathering evidence but presented none, that there were no alibi witnesses, nor any evidence that Hyson was somewhere else on the day in question. Defense counsel lodged a continuing objection that this argument was improper burden shifting, which was overruled, and the prosecutor continued to develop this theme, suggesting ways the defense could have demonstrated that Hyson was not the person who drove the Acura or that the Facebook account belonged to someone else. Concluding his rebuttal, the prosecutor drove home his point that there was not a “shred of evidence” that anyone other than Hyson committed these offenses or that Hyson was someplace else when they occurred, pointing out that “you can bet your boots” that if the defense had any such evidence they would have presented it.

In this court, Hyson contends that by harping on the absence of defense evidence the prosecutor was shifting the burden to the defense to produce evidence that Hyson was somewhere else when the charged offenses were committed. But “[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) Here, Hyson challenges a rebuttal argument, responding to the defense claim that the prosecutor failed to prove that Hyson was the person who committed these crimes. The prosecutor’s point was that all of the evidence pointed to guilt and none pointed in the other direction—not that the defense had some burden of proof that it failed to meet.

Thus, the challenged argument was permissible, in contrast to People v. Hill (1998) 17 Cal.4th 800, where the prosecutor told the jury that “[t]here has to be some evidence on which to base a doubt.” (Id. at p. 831, italics omitted.) Nor did the prosecution argue, as Hyson contends, that any “defect in its proof was immaterial, because the defense failed to prove defendant was elsewhere or that someone other than defendant owned the Kindle and had driven the car.” He argued there was no defect in the People’s case and that all the evidence pointed to Hyson’s guilt. It is not reasonably likely the jury construed this argument as improper burden shifting.

Hyson further contends that because the defense never suggested anyone else knew where Hyson was when the crimes were committed, it is reasonably likely the jury interpreted the prosecutor’s remarks as commenting on Hyson’s decision not to testify in her own defense. However, as noted above, the prosecutor suggested all kinds of ways that an alibi could have been established other than by the defendant’s own testimony. “The Fifth Amendment does not prohibit the prosecution from commenting on the state of the evidence presented at trial, or on the defense’s failure to introduce material evidence or to call witnesses other than the defendant.” (People v. Taylor, supra, 48 Cal.4th at p. 633.)

By separate argument, Hyson objects to statements the prosecutor made while he was discussing the credibility of the police witnesses during his initial closing and rebuttal arguments. Specifically, the prosecutor argued that there was no “reason” to doubt the officers’ testimony because there was no showing of misconduct and that without a reason “you can’t just disregard these officer’s testimony.” On rebuttal, the prosecutor repeated that there was no evidentiary basis for attacking the officers’ credibility and argued the defense nevertheless launched such an attack because it was their “only option when presented with this evidence.”

Hyson construes these comments as an improper attempt to shift the burden to the defense to prove the officers were not credible witnesses, and she also accuses the prosecutor of misstating the law by telling the jury that “misconduct” was the only legally recognized basis upon which to question a police officer’s credibility. Again, we are not persuaded by this interpretation of the prosecutor’s statements. His argument that the jurors should not disregard the officers’ testimony without a reason echoed the standard instruction that jurors should “not disregard the testimony of any witness without a reason.” (CALCRIM No. 302.) He did not suggest, as in Hill, supra, 17 Cal.4th at pp. 831–832, that the defense had the burden of producing “evidence” to establish a reasonable doubt. As for comments about there being no evidence of police misconduct, the defense theory was that the police officers who investigated this case were either lying or mistaken. The challenged statements were a fair response to this defense theory and a fair comment on the state of the evidence.

C. Impugning the Integrity of Defense Counsel

Finally, Hyson argues the prosecutor committed misconduct by attacking the integrity of her trial counsel. “ ‘A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion.” (People v. Edwards (2013) 57 Cal.4th 658, 738.)

During her closing argument, defense counsel discussed “the overarching principles” that the defendant is presumed innocent and the prosecutor has the burden of proving guilt beyond a reasonable doubt. In that context, counsel identified what she deemed to be the three most important things about the reasonable doubt standard: it is a personal decision; it does not require an articulable justification; and it requires some degree of certainty because jurors have to live with their verdicts. Then defense counsel stated: “People say she had a good defense lawyer who protected her rights. Well, I can’t. Only you can. The decision that you make you will have to live with for the rest of your life because Ms. Hyson will have to live with it for the rest of hers.”

Responding to this argument on rebuttal, the prosecutor stated: “She also said, you need to live with this for the rest of your life because the defendant is going to live with it for hers. She is asking you to break the law right there. You are not allowed to consider sentencing or any future consequences. She’s trying to ask you to bring in sympathy. Sympathy has no place in the jury box. That’s the judge’s determination . . . . You are not to consider her future. If you find yourselves thinking that, she has successfully convinced you to break the law as a juror.”

In this court, Hyson maintains that her defense counsel’s observation that jurors would have to live with their verdicts was a correct statement of law equating the reasonable doubt standard with an “ ‘abiding conviction’ ” of the truth of a charge, which means a conviction that is of a permanent and lasting nature. (See People v. Brigham (1979) 25 Cal.3d 283, 290–291.) Because defense counsel’s point was valid, Hyson argues, the prosecutor’s response to it was an improper attack on her attorney’s integrity, a violation of her constitutional right to counsel and another attempt to evade his burden of proof.

We agree that defense counsel’s point was valid but see no prejudicial error in the prosecutor’s rather overheated response. A prosecutor has “ ‘wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account.’ ” (People v. Winbush (2017) 2 Cal.5th 402, 484.) Thus, our Supreme Court has “upheld prosecutorial arguments suggesting defense counsel’s ‘job’ is to confuse the jury and say anything necessary to obtain a favorable verdict.” (Ibid.) However, it is generally improper to accuse counsel of fabricating a defense or to even imply that defense counsel “ ‘is free to deceive the jury.’ ” (Ibid.) To the extent the prosecutor’s argument could be construed as attacking defense counsel’s credibility, it goes too far, but even so construed, there was no prejudicial error here. This was an isolated remark, not a “pattern of egregious misbehavior making the trial fundamentally unfair” under federal constitutional standards. (See People v. Espinoza (1992) 3 Cal.4th 806, 820.) Nor is it reasonably probable that this isolated remark affected the jury’s evaluation of the evidence or the rendering of its verdict, so as to constitute state law error. (Ibid.)

II. Trial Counsel’s Representation

As an alternative basis for reversal of the judgment, Hyson contends she was denied her constitutional right to the effective assistance of counsel. “A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] ‘Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 575, italics omitted.)

“It is defendant’s burden to demonstrate the inadequacy of trial counsel. [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas).) To carry this burden, “ ‘ “a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] Second, [the defendant] must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ ” (Ibid.)

Hyson contends her trial attorney’s representation fell below an objective standard of reasonableness because she did not request a pinpoint instruction advising the jury “to consider the fairness” of the identification procedure that was used to identify Hyson as the suspect in this case. According to Hyson, the defense had a clear right to such an instruction under People v. Fudge (1994) 7 Cal.4th 1075, 1109–1110 (Fudge), and there is no conceivable tactical reason for failing to request it.

Fudge, supra, 7 Cal.4th 1075, was a Supreme Court appeal following a defendant’s first-degree murder convictions and sentence of death. At trial, the defendant presented expert testimony to explain potential problems with the accuracy of eyewitness identifications, but the trial court denied a defense request for a special instruction relating to the expert’s testimony. (Id. at p. 1109.) Reviewing this ruling on appeal, the Fudge court began by articulating the following pertinent principles: “A criminal defendant ‘is entitled to an instruction that focuses the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.’ [Citations.] An explanation of the effects of such factors, however, ‘is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate.’ ” (Id. at p. 1110.) Applying these principles, the Fudge court concluded that the trial court erred by refusing to give “at least a revised version of the [defendant’s] proposed instruction,” but the error was harmless. (Ibid.)

In contrast to Fudge, in the present case there was no expert testimony regarding problems endemic to eyewitness identifications. However, identity was a highly disputed issue, leading defense counsel to request three instructions pertinent to witness identification: CALCRIM No. 105, a pre-trial general instruction outlining factors for evaluating witness credibility; CALCRIM No. 226, which again instructed the jury regarding factors relevant to witness credibility; and CALCRIM No. 315, addressing factors for evaluating an eyewitness identification. Each of these instructions was delivered to the jury.

CALCRIM No. 315, which only the defense requested, provided the jury with a comprehensive list of factors to consider when evaluating whether an eyewitness who had identified the defendant “gave truthful and accurate testimony.” CALCRIM No. 315 explicitly told the jury to consider, inter alia, whether: “the witness [was] asked to pick a perpetrator out of a group”; if “the witness [was] able to identify the defendant in a photographic or physical lineup”; and whether there were “any other circumstances affecting the witness[’s] ability to make an accurate identification.”

During her closing argument, defense counsel encouraged the jury to reject each identification of her client by the police officer witnesses. Counsel questioned the officers’ ability to get a good look at the suspect, the officers’ credibility as witnesses, and the police department’s failure to use a double-blind procedure to conduct the photo lineup. In presenting these arguments, counsel twice referred to the CALCRIM instructions telling jurors to consider factors affecting a witness’s perceptions and credibility.

Under these circumstances, we are not persuaded that defense counsel’s representation of Hyson fell below an objective standard of reasonableness solely because she did not request an additional pinpoint instruction like the one approved in Fudge. Tellingly, Hyson does not specify the content of a special instruction that she envisions as being materially different from the CALCRIM pattern instructions. CALCRIM No. 315 explicitly instructed the jury to evaluate the “identification testimony” that was elicited in this case by considering many of the same factors that were listed in the special instruction that was requested by the defense in Fudge. (See Fudge, supra, 7 Cal.4th at p. 1109, fn. 8.)

Hyson contends that the CALCRIM instructions were inadequate because they did not explain the defense theory “that the use of defective identification procedures was a reason jurors might elect to not credit the identifications.” But Fudge does not entitle a defendant to a jury instruction explaining why she thinks an identification procedure was unfair. Rather, when there is a dispute about an eyewitness identification, the jury instruction should list the relevant factors that are supported by the evidence in a “ ‘neutral manner’ ” while an “explanation” regarding the effect of such factors “ ‘is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate.’ ” (Fudge, supra, 7 Cal.4th. at p. 1110.) In reaching this conclusion, the Fudge court affirmed People v. Wright (1988) 45 Cal.3d 1126, 1138–1144. (Fudge, at p. 1110.) Wright disapproved the use of a special cautionary instruction regarding the unreliability of eyewitness identification and held that a defendant who “wishes to present to the jury information on the unreliability of eyewitness identifications under a particular set of circumstances . . . must use means other than a jury instruction, such as expert testimony.” (Wright, at p. 1153–1154.)

The only matter Hyson claims was not adequately covered by the jury instructions was the “fairness of the identification procedure.” But the version of CALCRIM No. 315 that was used in this case instructed the jury to consider a panoply of factors affecting the reliability of witness identification procedures, including specifically, whether the identification was made in a photo lineup, which was then followed immediately with a directive to consider “any other circumstances affecting the witness[’s] ability to make an accurate identification.”

Finally, if Hyson is suggesting her counsel should have requested a pinpoint instruction addressing a discrete aspect of the witness identification procedures, she fails to specify what procedure allegedly merited special attention. Moreover, requesting such a pinpoint instruction would have risked focusing the jury’s attention too narrowly on that point when the defense theory was that there were many reasons to reject each eyewitness identification of Hyson. Thus, using the CALCRIM instructions, which list multiple circumstances for evaluating witness testimony, was fully consistent with the overall defense strategy, and we have no reason to conclude that failing to request an additional instruction constituted ineffective assistance of counsel.

III. Hyson’s Felony Conviction for Driving or Taking A Vehicle

Hyson next contends a prejudicial jury instruction error requires us to reverse her felony conviction for violating section 10851(a) of the Vehicle Code, which states in part: “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, . . . is guilty of a public offense . . . .”

Section 10851(a) prohibits at least two distinct crimes: taking a vehicle with the intent permanently to deprive the owner of possession; and driving a vehicle one knows to have been stolen. (People v. Garza (2005) 35 Cal.4th 866, 876.) Because the first crime is a theft, it can be a felony only if the value of the vehicle exceeds $950. (People v. Page (2017) 3 Cal.5th 1175, 1182–1183 (Page).) The second crime, however, can be a felony regardless of the value of the car because it is not a theft offense. (People v. Lara (2019) 6 Cal.5th 1128, 1136–1137 (Lara).) Thus, “[w]here the evidence shows a ‘substantial break’ between the taking and the driving, posttheft driving may give rise to a conviction under Vehicle Code section 10851 distinct from any liability for vehicle theft.” (Page, at p. 1188.)

A. There Was A Non-Prejudicial Jury Instruction Error

In the present case, the jury was instructed with a version of CALCRIM No. 1820 that conflated the elements of two crimes prohibited by section 10851(a). It stated: “The defendant is charged in Count [2] with unlawfully taking or driving a vehicle. [¶] To prove the defendant is guilty of this crime, the People must prove[:] 1. [T]he defendant took or drove . . . someone else’s vehicle without the owner’s consent; [¶] AND 2. When the defendant did so, she intended to deprive the owner of possession or ownership of the vehicle for any period of time. A taking requires that the vehicle be moved any distance, no matter how small. A vehicle includes a passenger vehicle.”

As other courts have recognized, an instruction of this ilk fails “to [distinguish adequately] among, and separately define the elements for, each of the ways in which section 10851 can be violated.” (People v. Gutierrez (2018) 20 Cal.App.5th 847, 856; People v. Bussey (2018) 24 Cal.App.5th 1056, 1062, rev. granted (9/12/18) 237 Cal.Rptr.3d 791.) It allows the jury to find a felony violation of section 10851(a) based on either an unlawful taking or an unlawful driving theory, but it does not require that the vehicle must have a value of more than $950, or that the vehicle was taken with the intent to deprive the owner permanently of possession. Thus, the instruction is erroneous as to the taking or theft prong of this crime. (Gutierrez, at pp. 856–857; Bussey, at pp. 1061–1062.)

“When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground.” (People v. Chiu (2014) 59 Cal.4th 155, 167.) “Unlike with other types of instructional error, prejudice is presumed with this type of error.” (People v. Jackson (2018) 26 Cal.App.5th 371, 378, italics omitted.) But “[a]n instruction on an invalid theory may be found harmless when ‘other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary’ under a legally valid theory.” (In re Martinez (2017) 3 Cal.5th 1216, 1226.)

In this case, count two of the information charged Hyson with a felony violation of section 10851(a) based on allegations that she “did unlawfully drive and take” Mr. W.’s Acura without his consent and “with intent, either permanently or temporarily, to deprive said owner of title to and possession of said vehicle.” Thus the charge was sufficiently broad to convict Hyson based on either type of prohibited conduct. Moreover, the jury found Hyson guilty of this offense by returning a verdict form that stated Hyson “did unlawfully drive and/or take” the Acura, which was the personal property of Mr. W., “without the consent of and with intent either permanently or temporarily, to deprive said owner of the title to and possession of said vehicle . . . .” This verdict form explicitly authorized the jury to return a guilty verdict without electing whether to rely on an illegal taking theory or an illegal driving theory. Thus, neither the charging allegations nor the formal written verdict establish beyond a reasonable doubt that the guilty verdict was based on a finding pursuant to adequate instruction that Hyson drove the Acura without the owner’s consent. The charging document and verdict form do not rule out that the jury found she instead took the car in the first instance.

Nevertheless, reversal is not required because the trial evidence shows that the jury could not have convicted on an improper taking theory unless it also found Hyson guilty on the valid ground that she unlawfully drove the Acura. The prosecutor’s trial theory as explained during closing argument was that Hyson violated section 10851(a) by driving a vehicle that she knew was stolen. There is no dispute on appeal that a conviction based on this theory is supported by substantial evidence that at least two days after Mr. W.’s car was stolen in San Francisco, Hyson was seen driving it in Piedmont.

Although not urged to do so, the jury could have used evidence of Hyson’s unlawful driving to conclude that she was also the person who stole the Acura a few days earlier. (See People v Hopkins (1963) 214 Cal.App.2d 487, 491 [mere possession of a stolen vehicle under suspicious circumstances may be sufficient evidence to sustain a conviction for violating section 10851].) However, to the extent the jury used this evidence to find a theft-based violation of section 10851(a), it also necessarily found a driving-based violation of that law. Thus, the evidence leaves no reasonable doubt that the jury made findings necessary to convict under a legally valid theory.

Hyson argues that at least one juror could have rejected evidence that she was the Acura driver who fled from Officer Garcia but nevertheless concluded that she committed a vehicle theft based solely on evidence that she was spotted in the area, and her Facebook account was opened on one of the Kindles found inside the car. The fact that the jury instruction permitted this outcome was prejudicial, Hyson reasons, because there was no evidence of the Acura’s value, and whether a properly instructed jury would have found the car’s value exceeded $950 “would be pure speculation.”

Hyson cites no authority supportive of her novel theory that a person can be convicted of taking a vehicle when there is no evidence she had that vehicle in her possession. Certainly, this case was not tried on such a theory. The linchpin of the section 10851(a) charge was that Hyson was the driver of the stolen Acura, who fled from police, and then abandoned the car in an effort to escape prosecution. For this reason, the facts of this case are materially different from Jackson, supra, 26 Cal.App.5th 371, upon which Hyson mistakenly relies.

In Jackson, an employee of a home-staging business was outside his company’s warehouse when he saw the defendant loading chairs into a Toyota Land Cruiser. After half-heartedly confronting the defendant, the employee left the scene and contacted police. Subsequently, the police determined the Toyota had been stolen and located it parked on the street with the chairs inside it. The defendant was also in the vehicle, asleep in the passenger seat with the keys and registration in his pocket. (Jackson, supra, 26 Cal.App.5th at p. 375-376.) He was charged with and convicted of a felony violation of section 10851(a) and with second degree robbery of the chairs. (Id. at p. 375.) At trial, the prosecutor’s primary theory regarding the section 10851(a) charge was illegal driving, based on circumstantial evidence that the defendant must have driven the Toyota away from the warehouse where he was confronted by the witness. However, during closing argument, the prosecutor alluded to other theories, based on the defendant’s “taking” or “possessing” the Toyota, which were supported by direct evidence that the defendant possessed and exercised control over the stolen vehicle at a time he was not driving it. (Id. at p. 376.)

On appeal, the Jackson court found that an instructional error permitting the jury to convict the defendant of a felony violation of section 10851(a) based on an invalid theft theory or a valid driving theory was prejudicial because the prosecutor did not clearly elect the valid driving theory and the trial evidence did not establish beyond a reasonable doubt that “not a single juror relied on taking rather than driving to convict Jackson.” (Jackson, supra, 26 Cal.App.5th at p. 380, italics omitted.) In reaching this conclusion, the Jackson court rejected the People’s argument that there was no evidence of a taking of the Toyota. The court reasoned that although evidence of driving may have been stronger than the evidence of taking, a conviction based on stealing was supported by substantial evidence that the defendant possessed the Toyota under suspicious circumstances shortly after it was stolen. Furthermore, the evidence did not “permit” the court to “conclude that no juror could have found that Jackson stole the vehicle without also finding that he engaged in posttheft driving” because the witness did not see the defendant driving the Toyota after he loaded chairs into it and there was no other “direct evidence of driving that compelled the conclusion that if Jackson stole the vehicle, he also drove it after the theft.” (Id. at pp. 380–381.)

The present case is the opposite of Jackson. The prosecution presented evidence that Hyson was driving a stolen car that was subsequently abandoned and found to contain other stolen property. Thus, if the jury concluded that Hyson stole the Acura, it was because they also concluded that she was driving it, whereas in Jackson, the prosecution did not present any direct evidence that the defendant drove the stolen Toyota. Instead, the section 10851(a) charge was based on evidence that the defendant was seen loading stolen goods into the Toyota and was subsequently found sleeping in that car. This evidence that the defendant had actual possession of the Toyota could have been used by the jury to infer a theft of the vehicle even if they were not convinced that defendant drove the car after he loaded it with the stolen chairs, thus precluding a finding of harmless error. Here, by contrast, because the substantial evidence that Hyson illegally drove the Acura is the same evidence that could potentially have been used to find that she stole it, we can conclude beyond a reasonable doubt that the jury instruction error was harmless.

B. Imposing Harsher Punishment for Unlawful Driving than For Theft

Hyson contends that even if the jury instruction error was not prejudicial, her felony conviction for violating section 10851(a) cannot stand for two related reasons.

First, Hyson contends that section 10851(a) would violate constitutional equal protection if it is interpreted to authorize felony punishment for unlawful driving of a vehicle that is not worth more than $950, when felony punishment for unlawful taking of that same low-value vehicle is prohibited. This same equal protection challenge was rejected in People v. Morales (2019) 33 Cal.App.5th 800, 808–809 (Morales), a published decision from this division not mentioned by either party.

Offenders who violate the unlawful driving prong of section 10851(a) are not similarly situated to defendants who commit a theft by violating the unlawful taking prong of this law. (Morales, supra, 33 Cal.App.5th at p. 809.) Unlawful post-theft driving is a separate, distinct violation of section 10851(a), which does not constitute a theft offense under controlling precedent. (Lara, supra, 6 Cal.5th 1136-1137). Therefore, this crime is not governed by the statutory mandate that “obtaining any property by theft where the value of the . . . property . . . does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor.” (§ 490.2.) Because Hyson fails to establish that the two classes receiving unequal treatment under section 10851(a) are similarly situated, her “ ‘equal protection claim cannot succeed, and does not require further analysis.’ ” (Morales, at p. 809.)

Hyson’s second contention is that section 490.2, which imposes the $950 threshold for treating a theft as a felony, must be interpreted to apply to unlawful driving under section 10851(a) so as to avoid absurd results. Again, this argument was rejected in Morales, supra, 33 Cal.App.5th at pp. 806–807. By its plain meaning, section 490.2 affects only theft offenses and does not apply to crimes that do not constitute theft, including post-theft driving of a vehicle in violation of section 10851(a). Hyson fails to persuade us that a straightforward application of this law leads to absurd consequences. Nor do we agree with Hyson that post-theft driving is necessarily a less serious offense than the unlawful taking of a low value vehicle. “Driving is an inherently dangerous activity, driving illegally even more so, and although the theft of a car is a single incident, driving a car without its owner’s permission may be done many times, multiplying the threat to public safety. Far from being absurd, then, imposing harsher punishment on driving violations of section 10851 is entirely reasonable in this respect,” we previously held. (Morales, at p. 807.)

IV. Hyson’s Identity Theft Convictions

Next, Hyson challenges the sufficiency of the evidence to support her two misdemeanor convictions for fraudulent possession of personal information in violation of section 530.5, subdivision (c)(1), which states: “Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information . . . of another person is guilty of a public offense . . . .”

“Our role when reviewing the sufficiency of the evidence is to evaluate the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Ramos (2016) 244 Cal.App.4th 99, 104.) “ ‘ “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” ’ ” ’ [Citations.] Reversal on the basis of insufficient evidence is ‘unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” ’ ” (People v. Truong (2017) 10 Cal.App.5th 551, 556, italics omitted.)

Hyson contends there is no evidence, substantial or otherwise, that she ever had possession of the two driver’s licenses found in the backpack near the abandoned Acura, which are the basis for her misdemeanor convictions. As support for this argument, Hyson invokes the principle that “[m]ere access or proximity to stolen goods is not enough to infer possession [citation].” (People v. Martin (1973) 9 Cal.3d 687, 696.) In Martin, for example, there was insufficient evidence to support a defendant’s conviction for receipt of stolen goods that were discovered in the back of a co-defendant’s car because the fact that the defendant was arrested near the car was insufficient to establish that he possessed those goods.

The present case is materially different from cases like Martin. Here there was substantial evidence that Hyson fled from police in a stolen car, which contained stolen property, and that she abandoned that car after crashing it into a barrier. There was also evidence that some of the stolen items had fallen out of the car or been dropped when Hyson fled on foot. From this evidence a reasonable inference could be drawn that Hyson dropped the backpack on the ground when she fled the scene. In other words, this is not a case in which possession was inferred from the defendant’s proximity to stolen goods but a case in which the identity of the person who stole the personal information documents that were found in the Acura and in the backpack was inferred from circumstances established by the evidence.

V. Fines and Fees Imposed at Sentencing

Hyson contends the trial court erred by requiring her to pay statutory court fees without finding that she has the ability to pay them. As support for this claim, Hyson relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was decided after she was sentenced in this case.

A. Additional Background

The pre-sentence report recommended that the court require Hyson to pay the following fines and fees in addition to victim restitution: (1) a $4,800 restitution fine (§ 1202.4); (2) a $250 probation investigation fine (§ 1203.1b); (3) a $40 per conviction court security fee for a total of $160 (§ 1465.8); and (4) a $30 per conviction assessment fee for a total of $120 (Govt. Code, § 70373).

At Hyson’s sentencing hearing, there was no substantive discussion about the recommended sentencing fines and fees. After announcing Hyson’s prison sentence, and denying her probation, the court imposed a restitution fine in the amount of $4,800 pursuant to section 1202.4, and then ordered her to pay victim restitution. Defense counsel did not object to the restitution fine, but she did object to the victim restitution order and requested a hearing as to that matter.

Then, after ordering Hyson to submit DNA samples, the court stated: “The court makes the following civil order which is not a condition of probation: [¶] One, the defendant is ordered to pay a probation investigation fee of $250 pursuant to Penal Code section 1203.1[b]. The defendant has been advised of the amount and right to have a hearing with counsel concerning her ability to pay. [¶] Number two, defendant is ordered to pay a $40 per conviction court operation assessment fee pursuant to section 1465.8 of the Penal Code, for a total of $160. [¶] And number three, to pay $30 per conviction—criminal conviction assessment fee pursuant to section 70373, the Government Code, for a total of $120.” Defense counsel did not object to these rulings.

B. Analysis

Hyson challenges the orders imposing the $40 per conviction court assessment and the $30 per conviction criminal conviction assessment. She contends that requiring her to pay these statutory fees totaling $280 without any consideration of her ability to pay them violates her due process rights under the reasoning of Dueñas, supra, 30 Cal.App.5th 1157. (But see People v. Hicks (2019) 40 Cal.App.5th 320, rev. granted (11/26/2019) 2019 Cal. LEXIS 8958 [disagreeing with Dueñas].) Initially, Hyson also challenged the imposition of a restitution fine, but she subsequently withdrew this claim of error.

The Dueñas defendant was convicted of driving on a suspended license and sentenced to probation. (Dueñas, supra, 30 Cal.App.5th 1157.) At her sentencing hearing she objected that she did not have the ability to pay statutory fees and fines, requested a hearing on the matter and produced undisputed evidence establishing her inability to pay. (Id. at p. 1162.) Consequently, the court struck some fees, but imposed others that it concluded were mandatory. (Id. at pp. 1162–1163.) On appeal, the Dueñas court found it was a violation of constitutional due process to impose court assessments required by section 1465.8 and Government Code section 70373, neither of which was intended to be punitive, without finding that the defendant had the ability to pay them. (Id. at p. 1168.) The court also found that, although a restitution fine imposed under section 1202.4 was considered additional punishment for defendant’s crime, that fine posed constitutional concerns because the statute required imposition of a minimum fine irrespective of the defendant’s ability to pay it. To avoid the constitutional problem, the court held that although section 1202.4 requires a trial court to impose a minimum fine regardless of ability to pay, execution of the fine must be stayed until the defendant’s ability to pay is determined. (Id. at p. 1172.)

Unlike the Dueñas defendant, Hyson did not request a hearing regarding her ability to pay any statutory fine or assessment imposed on her. Thus, she forfeited her claim that these fines should not have been imposed. (People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate forfeiture rule applies to probation fines and attorney fees imposed at sentencing]; People v. McCullough (2013) 56 Cal.4th 589, 596–597 [defendant forfeits appellate challenge to the sufficiency of evidence supporting a Government Code section 29550.2, subdivision (a) booking fee if objection not made in the trial court]; People v. Avila (2009) 46 Cal.4th 680, 729 [appellate forfeiture rule applies to defendant’s claim that restitution fine amounted to an unauthorized sentence based on his inability to pay]; People v. Nelson (2011) 51 Cal.4th 198, 227 [claim that trial court erroneously failed to consider ability to pay a restitution fine forfeited by the failure to object].)

Hyson contends that objecting to statutory fines would have been futile because at the time of her sentencing hearing she did not have the benefit of the Dueñas decision. (See People v. Castellano (2019) 33 Cal.App.5th 485, 488–489; but see People. v Frandsen (2019) 33 Cal.App.5th 1126, 1154–1155 [positing that Dueñas was based on settled principles of due process].) This argument misconstrues the reason for finding a forfeiture in the present case. Forfeiture did not result from Hyson’s failure to make a substantive due process objection to the statutory fines but rather from her failure to request a hearing or to otherwise dispute her ability to pay them at all.

In contrast to Dueñas, in this case the court imposed a restitution fine that exceeded the $300 minimum fine required by section 1202.4, and therefore Hyson’s ability to pay was a statutory consideration under subdivision (d) of that statute. However, Hyson did not object that she lacked the ability to pay a $4,800 restitution fine or request an ability-to-pay hearing. Moreover, ability to pay was also a statutory consideration for imposing a probation investigation fee under section 1203.1b. Yet again, Hyson did not request an ability-to-pay hearing even after the court expressly stated she was entitled to one. The failure to request such a hearing under these circumstances resulted in a forfeiture of Hyson’s claim for purpose of appellate review.

We note that Hyson does not challenge the probation investigation fee and has withdrawn her appellate challenge to the restitution fine. But Hyson cannot avoid the consequences of her failure to request an ability-to-pay hearing by limiting her appellate challenge to the specific assessments imposed under section 1465.8 and Government Code section 70373. After all, the same evidence in the same hearing that would have addressed Hyson’s ability to pay the $4,800 restitution fine and the $250 probation investigation fee could have also established her inability to pay these assessments, had Hyson chosen to litigate that issue. Unlike the Dueñas defendant, Hyson had a statutory right to an ability-to-pay hearing that she did not exercise, thus forfeiting her appellate claim that such a hearing was required. (See People v. Johnson (2019) 35 Cal.App.5th 134, 138, fn. 5 [recognizing that the “distinction between minimum and above minimum restitution fines has consequences for the applicability of forfeiture doctrine”].)

VI. The Prior Prison Term Sentence Enhancements Must Be Stricken

Pursuant to a supplemental brief, Hyson requests that this court strike two one-year sentence enhancements that the trial court imposed under section 667.5(b), arguing that an amendment to this statute that will go into effect in January 2020 applies retroactively to her case.

Hyson was charged with 13 prior convictions, as well as 5 prior prison terms subjecting her to sentence enhancements under section 667.5(b). Section 667.5(b) currently states that when a defendant is convicted of a felony and sentenced to prison, “in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony . . . .” The trial court found all enhancement allegations were true, imposed consecutive one-year terms for two of Hyson’s prior prison terms and struck the other three.

Effective January 1, 2020, section 667.5(b) will enhance punishment only for sexually violent priors. The amended statute will state that “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 . . . .” Under the amended statute, Hyson would not be subject to any additional sentence enhancement because her prior prison terms were not for sexually violent offenses.

Hyson contends that this statutory amendment to section 667.5(b) applies retroactively to her because it will go into effect before the judgment in this case becomes final. (Citing In Re Estrada (1965) 63 Cal.2d 740 (Estrada).) In Estrada, supra, 63 Cal.2d at p. 745, our Supreme Court stated that “[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too serve and that a lighter punishment is proper as punishment for the commission of the prohibited act.” From this holding came the Estrada rule, which provides that “ ‘when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature.’ ” (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) “[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.” (People v. Vieira (2005) 35 Cal.4th 264, 306.)

The People concede that once the amendment to section 667.5(b) goes into effect, “it will apply retroactively to defendants whose judgments are not yet final.” They also concede that because Hyson’s prior prison terms were not for sexually violent offenses, the amendment will apply retroactively to her. Nevertheless, they argue that the issue whether amended section 667.5(b) applies retroactively to this case is not ripe for review because, until the amendment goes into effect in January 2020, there is a possibility that it may not become operative.

Because the record shows that the judgment in this case will not yet be final on January 1, 2020, we reject the People’s contention that this issue is not ripe for review. As the People concede, under the Estrada rule Hyson will be entitled to the benefit of amended section 667.5(b), which means that the sentence enhancements previously imposed pursuant to this statute must be stricken. (See People v. Warren (Nov. 13, 2019, No. S258351) ___Cal.5th___ [2019 Cal. LEXIS 8382] [Supreme Court grant of review and transfer to Court of Appeal to reconsider applicability of 2020 amendment to non-final judgment].)

“[W]hen part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.) Thus, as Hyson acknowledges, the proper remedy is a remand for resentencing.

DISPOSITION

The sentence enhancements imposed pursuant to section 667.5(b) are stricken and this case is remanded for resentencing. In all other respects, the judgment is affirmed.

 

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TUCHER, J.

WE CONCUR:

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POLLAK, P. J.

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BROWN, J.

People v. Hyson (A153805)