Opinion
C088959
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ALMEDA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18FE012775)
A trial court sentenced defendant Anthony Almeda to an aggregate term of 22 years four months in state prison, which included one year each for two prior prison term enhancements. Defendant contends the prior prison term enhancements should be vacated based on the retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.), a point which the People concede. Defendant also asks us to correct two errors involving prior strike convictions and a restitution fine in the abstract of judgment. We agree, and remand the case for resentencing with instructions to strike the prior prison term enhancements and correct the abstract, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury found defendant guilty of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts one & two) and one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1); count three) after he shot the two victims in an argument. The jury also found true allegations that defendant personally used a firearm (§ 12022.5, subd. (a)) and caused great bodily injury to both victims on the two assault counts. (§ 12022.7, subd. (a).) The trial court found true allegations that defendant had served two prior prison terms: one for a 2016 conviction for possession of a stolen vehicle (§ 496d, subd. (a)) and another for a 2012 vehicle theft conviction (Veh. Code, § 10851, subd. (a)).
Undesignated statutory references are to the Penal Code.
At the sentencing hearing, the court noted that defendant did not have any prior strike convictions, although he did have a lengthy criminal history. The court sentenced defendant to an aggregate term of 22 years four months in state prison, which included one year each for the two prior prison term enhancements. (§ 667.5, subd. (b).) The court imposed but stayed a $6,600 restitution fine (§ 1202.4, subd. (b)) pending evidence of defendant's ability to pay the fine. The court also determined that defendant should pay victim restitution in an amount to be determined.
Section four of the abstract of judgment states that defendant was sentenced "per PC 667(b)-(i) or PC 1170.12 (strike prior)" because of a prior strike conviction. The abstract also lists a $6,600 restitution fine "per PC 1202.4(b) forthwith per PC 2085.5" and does not have any notation that the fine has been stayed.
DISCUSSION
I
Prior Prison Term Enhancements
Defendant argues his prior prison term enhancements must be vacated based on the retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.). The People agree, as do we.
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). Senate Bill No. 136 narrowed eligibility for the one-year prior prison term 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).)
None of defendant's prior prison terms were for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. Defendant is therefore entitled to the ameliorative benefit of the statute if Senate Bill No. 136 is applied retroactively. We agree with the parties that the amendment to Senate Bill No. 136 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 a 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 Estrada 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.) "A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so. [Citation.]" (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
In re Estrada (1965) 63 Cal.2d 740 (Estrada). --------
Senate Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b) prior prison term enhancement, thus rendering ineligible many individuals, including defendant, who served prior prison sentences for vehicle theft and possession of a stolen vehicle. 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 conclude Estrada's inference of retroactive application applies, and defendant's section 667.5, subdivision (b) prior prison term enhancements should be stricken. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to legislative changes to former § 12022.6, subds. (a) & (b) enhancements].)
Because the trial court imposed less than the maximum sentence, we remand the matter for full resentencing to allow the court to exercise its discretion in light of the changed circumstances. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15; People v. Hill (1986) 185 Cal.App.3d 831, 834.)
II
Abstract Of Judgment Errors
Defendant points out two errors in the abstract of judgment that require correction. First, section four of the abstract states that defendant was sentenced under the three strikes law, but defendant does not have any prior strike convictions. Second, the abstract lists the $6,600 restitution fine ordered in the court's oral pronouncement, but does not indicate that the fine was stayed. The People concede the error with respect to section four, but as to the restitution fine assert that no correction is necessary because "[t]he abstract of judgment properly reflects both the stayed restitution fine and the imposed victim restitution." We agree with defendant and will direct the clerk to correct the errors.
A minute order or abstract of judgment cannot override or displace the trial court's oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Clerical errors in an abstract may be corrected at any time. (People v. Rowland (1988) 206 Cal.App.3d 119, 123.) The trial court expressly found that defendant did not have any prior strike convictions, and the checkmark in section four indicating that defendant was sentenced based on prior strike convictions appears to be a clerical error. We will order it to be corrected.
Likewise, the abstract does not indicate that the restitution fine is stayed. At sentencing, the trial court imposed a $6,600 restitution fine (§ 1202.4, subd. (b)), which it stayed pending a showing that defendant had the ability to pay the fine. The court also imposed victim restitution in an amount to be determined. (§ 1202.4, subd. (f).) The abstract of judgment accurately lists these items, but does not include any notation that the restitution fine has been stayed. In fact, it notes that the restitution fine amount can be deducted "forthwith" under section 2085.5. This error should be corrected.
DISPOSITION
The trial court is directed to strike defendant's section 667.5, subdivision (b) prior prison term enhancements. The matter is remanded for resentencing not inconsistent with this opinion. The trial court is further directed to prepare an amended abstract of judgment that reflects the court's oral pronouncement of judgment, including the stay of the restitution fine and deletion of the prior strike checkmark in section four, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
KRAUSE, J. We concur: ROBIE, Acting P. J. BUTZ, J.