Filed 1/17/20 P. v. Marks CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RONALD LARRY MARKS,

Defendant and Appellant.

E071665

(Super.Ct.No. INF1701910)

OPINION

APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge. Affirmed with directions.

Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn Kirschbaum, Melissa Mandel and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Ronald Larry Marks pled guilty to one count of burglary (Pen. Code, § 459) and admitted three prison priors. He was sentenced to five years in state prison (two years for the burglary and enhancements of one year each for the three priors). The trial court also ordered defendant to pay a $300 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), and fees in the total amount of $70 (a $40 court operations assessment pursuant to Pen. Code, §1465.8 plus a $30 conviction assessment pursuant to Gov. Code, § 70373).

DISCUSSION

On appeal, defendant contends the imposition of the court operation and conviction assessments without first conducting a hearing to determine his ability to pay those fees violated his constitutional right to due process as declared in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). He also argues that, although section 1202.4 required the trial court to impose the restitution fine, his right to due process as articulated in Dueñas requires the fine to be stayed until and unless the People demonstrate he is able to satisfy that obligation. In supplemental briefing, defendant requests we strike the enhancements pursuant to the newly amended section 667.5.

We will remand the matter for resentencing, including consideration of the Dueñas issues.

A. Senate Bill No. 136 and Enhancements

In supplemental briefing, defendant argues he should benefit from the amendment to subdivision (b) of section 667.5, which limits prior prison term enhancements to specific sexually violent offenses. The People concede the point, and we agree.

When defendant was sentenced in September 2018, the trial court was required to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free from custody for at least five years. (§ 667.5, subd. (b).) Senate Bill No. 136 amended the subdivision to limit the enhancement provision to prior prison terms resulting from convictions for sexually violent offenses as defined by section 6600 of the Welfare and Institutions Code. The amendment was effective January 1, 2020. (Stats 2019, ch. 590, § 1, effective Jan. 1, 2020.)

A new or amended statute that reduces the punishment for an offense will, absent evidence to the contrary, apply retroactively to any case in which the judgment is not yet final on the statute’s operative date. (In re Estrada (1965) 63 Cal.2d 740, 742, 744-745 (Estrada); People v. Hajeck and Vo (2014) 58 Cal.4th 1144, 1195-1196, disapproved on other grounds as stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) For the purposes of the Estrada rule, a judgment is not final so long as courts may provide a remedy on direct review, including the time within which to petition the United States Supreme Court for writ of certiorari. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1336.)

When a newly amended statute provides for reduction of punishment for an offense in cases not yet final, the appropriate remedy is to vacate the sentence and remand the matter with instructions to strike the enhancements and to resentence defendant in light of the new provision so long as the new sentence is not for a term in excess of the original. (See People v. Wright (2019) 31 Cal.App.5th 749, 756-757.)

Here, defendant’s sentence included one-year enhancements for three prior prison terms, none of which involved a sexually violent offense. This appeal from that judgment was not final before January 1, 2020, and the parties have the right to further review by other courts even after our opinion becomes final. Defendant is, therefore, entitled to benefit from the ameliorative effect of Senate Bill No. 136’s amendment to subdivision (b) of section 667.5. Accordingly, we will order the trial court to strike the three one-year enhancements and to resentence defendant.

B. The Dueñas Issues

In view of our decision to remand for resentencing, there is no need to decide defendant’s Dueñas arguments. The Dueñas issues are pending in the Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844. We will not attempt to anticipate how that Court will resolve those questions. When the trial court hears the matter for resentencing, the parties will have the opportunity to raise the Dueñas issues. If defendant or the People are unhappy with the trial court’s decision, they will have the option of appeal.

DISPOSITION

The sentence is vacated. The matter is remanded with instructions to strike the three one-year prior prison terms and to resentence defendant in a manner consistent with the views expressed in this opinion. Following resentencing, the trial court is directed to prepare a new abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MENETREZ

J.