Opinion
C089630
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. DANIEL STEVEN KING, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFECOD20170015470)
Defendant Daniel Steven King pled guilty to voluntary manslaughter, admitted that he personally used and discharged a firearm causing great bodily injury or death, and admitted that he served two prior prison terms. On appeal, he contends the prior prison term enhancements must be vacated based on the retroactive application of Senate Bill No. 136 (Senate Bill 136). We modify the judgment to strike defendant's prior prison term enhancements. We will otherwise affirm.
I. BACKGROUND
Due to the limited nature of the claim on appeal, we need not recite the offenses in any detail. It suffices to say that defendant shot and killed the victim during a dispute at a gas station. He was charged with first degree murder (Pen. Code, § 187, subd. (a)), and shooting a firearm at a vehicle (§ 26100, subd. (c)). It was further alleged as to both counts that defendant personally used and discharged a firearm causing great bodily injury or death (§§ 12022.5, subd. (a), 12022.53, subd. (d)). It was also alleged that in the commission of the murder, defendant intentionally discharged a firearm intending to kill a person (§ 190.2, subd. (a)). It was further alleged that defendant served two prison terms under section 667.5, subdivision (b). Defendant subsequently pled guilty to voluntary manslaughter (§ 192, subd. (a)), a reasonably related offense. Defendant admitted the firearm enhancement pursuant to section 12022.5, subdivision (a) as well as the two prior prison term enhancements. The remaining count and firearm enhancements were dismissed on motion of the district attorney in the interests of justice.
Further undesignated statutory references are to the Penal Code.
The court imposed an aggregate sentence of 23 years in state prison, as follows: 11 years for voluntary manslaughter (the upper term), 10 consecutive years for the firearm use enhancement, plus two years, consecutive, for the two prison prior enhancements pursuant to section 667.5, subdivision (b).
II. DISCUSSION
Defendant claims his prior prison term enhancements must be vacated based on the retroactive application of Senate Bill 136. The People agree.
On October 8, 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill 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).)
We agree with the parties that the amendment to section 667.5 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) 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 (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, supra, 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." (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Here, Senate Bill 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 following convictions for evading a peace officer with wanton disregard for persons or property (Veh. Code, § 2800.2) and possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1). 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. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to legislative changes to section 12022.6, subds. (a) and (b) enhancements].) Because the trial court imposed the maximum sentence below, remand for resentencing is unnecessary and we will modify the judgment to strike defendant's prior prison term enhancements. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.)
III. DISPOSITION
The judgment is modified to strike defendant's section 667.5, subdivision (b) prior prison term enhancements. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/S/_________
RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
DUARTE, J.