Opinion
G055193
03-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT FRANKLIN ENSMINGER, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15HF0356) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Reversed and remanded. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
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Before Bedsworth, Acting P.J., Aronson, J., and Thompson, J.
A jury convicted defendant Robert Franklin Ensminger of: (1) transportation for sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); (2) possession for sale of methamphetamine (§ 11378); and (3) possession of suboxone (§ 11350, subd. (a)). Defendant admitted seven prior convictions, including violations of section 11378 and section 11379, subdivision (a). The trial court ultimately sentenced defendant to five years in prison. The operative portion of the court's sentence was comprised of two years on count 1 and a three-year enhancement pursuant to section 11370.2, subdivision (c), based on one of defendant's prior convictions.
All statutory references are to the Health and Safety Code. --------
Effective January 1, 2018, prior convictions under sections 11378 and 11379, subdivision (a), no longer support enhancements pursuant to section 11370.2, subdivision (c). (See § 11370.2, subd. (c) [now omitting prior felony convictions under § 11378 and § 11379].) Defendant contends, and the Attorney General concedes, that the change in the law is retroactive because defendant's appeal is still pending. (See People v. Nasalga (1996) 12 Cal.4th 784, 792-793; In re Estrada (1965) 63 Cal.2d 740, 745.) We agree with the parties that defendant's sentence is unauthorized and the section 11370.2, subdivision (c), enhancement must be stricken.
The only dispute raised in the briefs pertains to the proper remedy. The crux of the parties' dispute appears to be whether reducing the five-year sentence would alter an alleged plea bargain, which purportedly involved both the convictions in this case and separate charges brought against defendant to which defendant pleaded guilty. At sentencing, the court referred to its "global resolution" of defendant's cases as "generous." There is no need for this court to decide this issue in the first instance. We remand for a full resentencing hearing. (See People v. Calderon (1993) 20 Cal.App.4th 82, 88 ["It is perfectly proper for [the appellate] court to remand for a complete resentencing after finding an error with respect to part of a sentence"].)
DISPOSITION
The judgment is reversed and the case is remanded for resentencing consistent with this opinion.