Opinion
C089525
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JERALD JAMES ELLEDGE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF-18-4403)
Defendant Jerald James Elledge timely appeals his judgment of conviction and asks that we strike two one-year prior prison term enhancements imposed pursuant to Penal Code section 667.5, subdivision (b) in light of Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended the statute effective January 1, 2020 (Stats. 2019, ch. 590, § 1). The People concede the issue.
Undesignated statutory references are to the Penal Code.
On October 8, 2019, the Governor signed Senate Bill No. 136, which narrowed the 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 statute 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 (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.) 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.)
"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. (People v. Francis (1969) 71 Cal.2d 66, 75-78.)" (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Here, Senate Bill No. 136 narrowed the scope of offenders who are 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 nonsexually violent offenses. 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 § 12022.6, subd. (a) & (b) enhancements].) Accordingly, we will amend the judgment to strike defendant's two one-year prior prison term enhancements.
DISPOSITION
We modify the judgment to strike defendant's two one-year prior prison term enhancements. 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.
KRAUSE, J. We concur: ROBIE, Acting P. J. RENNER, J.