Opinion
C089310
07-08-2020
THE PEOPLE, Plaintiff and Respondent, v. JARVON GREEN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18FE006985)
Defendant, Jarvon Green, appeals a judgment following his conviction by a jury of certain crimes. Defendant argues: (1) his prison prior must be stricken in light of Senate Bill No. 136 and (2) his counsel rendered ineffective assistance in failing to request that the trial court strike his prior serious felony convictions. We will modify the judgment to strike his prison prior and affirm the judgment as modified.
FACTS AND PROCEDURAL HISTORY
The People's amended information charged defendant with attempted robbery (Pen. Code, §§ 664/211 ; count one), assault with a firearm (§ 245, subd. (a)(2); count two), making a criminal threat (§ 422; count three), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count four), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count five). It alleged defendant personally used a firearm in the commission of count one (§ 12022.53, subd. (b)) and used a firearm in the commission of counts one through four (§ 12022.5, subd. (a)). It further alleged status enhancements that defendant had suffered two prior strikes (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), two prior serious felony convictions (§ 667.5, subd. (a)), and a prison prior (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code.
Thereafter, a jury found defendant guilty of counts three and four, but found the associated firearm enhancements were not true. The jury found defendant not guilty of counts one and two and deadlocked on count five, resulting in dismissal of that count in the interests of justice. Following defendant's waiver of a jury trial on the status enhancements, the trial court found them true.
At sentencing, the court denied defendant's Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), but exercised its discretion under section 1385, subdivision (b)(1) to strike the punishment for one of his two prior strikes, thus electing not to impose a sentence of 25 years to life. Instead, the court imposed a total aggregate determinate term of 17 years in prison. This term was comprised of the upper term of three years on count three, doubled to six years because of the strike, plus two 5-year prior serious felony enhancements, plus one year for the prison prior enhancement to be served consecutively. The court also imposed the low term of 16 months, doubled to 32 months for count four, which the court then stayed pursuant to section 654. Defendant timely appealed.
Because the issues defendant raises on appeal do not implicate the facts underlying his offenses, we will dispense with a recitation of those facts.
DISCUSSION
I
The Prison Prior
Defendant first asks we strike the prison prior enhancement imposed pursuant to section 667.5, subdivision (b) in light of Senate Bill No. 136. The People concur.
On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, subdivision (b), effective January 1, 2020 (Stats. 2019, ch. 590, § 1). This bill narrowed the eligibility for the one-year prison prior 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).)
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 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 In re Estrada (1965) 63 Cal.2d 740 " '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.' [Citations.]" (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 saving clause or its equivalent.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)
Here, Senate Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b) prison prior enhancement, thus rendering ineligible many individuals, including defendant who served prior prison sentences for non-sexually 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, subds. (a) & (b) enhancements].) Accordingly, we will amend the judgment to strike defendant's section 667.5, subdivision (b) prison prior enhancement.
II
The Prior Serious Felony Convictions
Defendant argues his counsel was ineffective for failing to ask the trial court to consider dismissing the two 5-year prior serious felony enhancements pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) effective January 1, 2019, which amended sections 667, subdivision (a) and 1385, subdivision (b) "to give courts discretion to dismiss or strike a prior serious felony conviction for sentencing purposes." (People v. Garcia (2018) 28 Cal.App.5th 961, 965.) He asks that we remand the matter to allow the trial court to exercise this discretion. We disagree.
Defendant was sentenced over four months after the amendments of Senate Bill No. 1393 took effect. Thus, we presume that the trial court was aware of and exercised this discretion when it sentenced him. (See, e.g., People v. Stowell (2003) 31 Cal.4th 1107, 1114 [on appeal, " 'a trial court is presumed to have been aware of and followed the applicable law' "]; People v. Moran (1970) 1 Cal.3d 755, 762 [the presumption of regularity of judicial exercises of discretion apply to sentencing issues, there a CYA commitment], questioned on other grounds in People v. Gregg (1970) 5 Cal.App.3d 502, 507.) Because we must assume the trial court exercised the discretion conferred by Senate Bill No. 1393 when it sentenced defendant, he is not entitled to remand for resentencing.
Defendant nonetheless argues that his counsel was ineffective for not requesting that the trial court strike the serious felony convictions. We see nothing in the record establishing that, had defendant requested the court strike the serious felony enhancements, it is reasonably probable that the result would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [defendant seeking relief for ineffective assistance must establish both the ineffectiveness of that assistance and that he was prejudiced by counsel's failure].) On the contrary, the trial court carefully considered its options in determining the appropriate sentence for defendant. In so doing, the court exercised its discretion to strike the punishment of a life sentence, but not the prior strike as defendant had requested. The court then imposed the upper term for its determinate sentence on count three, ultimately sentencing defendant to an aggregate term of 17 years. Thus, there is nothing in the record establishing that it is reasonably probable that the trial court would have stricken one or more of the serious felony enhancements had defendant made such a request. (Strickland, 466 U.S. at p. 694.) Accordingly, this claim fails.
DISPOSITION
We modify the judgment to strike defendant's prison prior enhancement imposed under section 667.5, subdivision (b). The superior court is directed to prepare an amended abstract of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
KRAUSE, J.