Opinion
F075765
11-20-2019
The PEOPLE, Plaintiff and Respondent, v. Jose Carlos LOPEZ, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I, II, and IV of the Discussion.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J. In 2017, a jury convicted Jose Carlos Lopez of possession of a controlled substance (heroin) for sale ( Health & Saf. Code, § 11351 ). The trial court sentenced Lopez to the upper term of eight years, enhanced by four years based on four prior prison terms ( Pen. Code, § 667.5, subd. (b) ). Lopez's sentence was further enhanced by three years by Health and Safety Code section 11370.2. In a companion case, the court imposed a one-third consecutive term of 32 months for Lopez's 2015 conviction for transporting narcotics (heroin) for sale ( Health & Saf. Code, § 11352, subd. (a) ). Lopez received an aggregate prison term of 17 years eight months.
Undesignated statutory references are to the Penal Code.
Lopez contends the trial court abused its discretion in permitting the jury to hear about his 2015 conviction for transporting heroin for sale. He also claims the court abused its discretion when it rejected a chain of custody argument and permitted the jury to hear about the heroin seized in this matter and tested by a crime laboratory. We reject these claims. However, we agree with the parties that Lopez's three-year enhancement pursuant to Health and Safety Code section 11370.2 must be stricken because it is inapplicable in this case. We also agree with the parties that Senate Bill No. 136 (2019-2020 Reg. Sess.; Senate Bill 136), which the Governor recently signed, retroactively applies to Lopez. Senate Bill 136 amends the circumstances under which a one-year sentence enhancement may be imposed under section 667.5, subdivision (b). Under the new law, none of Lopez's four prior prison terms qualify for this enhancement. We strike the enhancements under section 667.5, subdivision (b), and Health and Safety Code section 11370.2, but otherwise affirm the judgment.
BACKGROUND
We summarize the material trial facts. We provide additional facts later in this opinion when relevant to specific issues raised on appeal. On January 6, 2016, a senior deputy with the Kern County Sheriff's Department, Michael Dorkin, arrested Lopez, who was wanted on an outstanding warrant. When he searched Lopez, Dorkin found a bag containing 24 bindles of suspected heroin. The total heroin, including the bag and bindles, weighed 35.9 grams. Dorkin also found three $20 bills, three $10 bills, and eleven $1 bills on Lopez (a total of $101). At the time of his arrest, Lopez appeared to be under the influence of heroin. Later testing confirmed that at least five of the bindles recovered from Lopez contained heroin. The other 19 bindles were not tested because their collective weight was insufficient to reach the next criminal enhancement.
DISCUSSION
As an initial matter, Lopez has filed a request for judicial notice pursuant to rule 8.252 of the California Rules of Court, and Evidence Code sections 452 and 459. We were asked to take judicial notice of the following: (1) a 1999 superior court order and related documents in San Diego County Superior Court case No. SF133532; (2) a 2014 superior court order and related documents from the same matter in number 1; and (3) a 2017 superior court order in San Diego County Superior Court case No. SCD107189. Respondent does not oppose this request.
We grant Lopez's request for judicial notice.
I.-II. [NOT CERTIFIED FOR PUBLICATION]
See footnote *, ante , page 337.
III. Lopez's Four Prior Prison Enhancements Must Be Stricken.
A defendant may receive an additional sentence enhancement under section 667.5 if certain conditions are met. ( People v. Buycks (2018) 5 Cal.5th 857, 889, 236 Cal.Rptr.3d 84, 422 P.3d 531 ( Buycks ).) Under current law, a one-year enhancement is imposed for each prior separate prison term or county jail term imposed under section 1170, subdivision (h). ( § 667.5, subd. (b).)
A one-year prior prison term enhancement contains a washout exception; the enhancement will not apply if a defendant remains free of prison custody for five years and does not commit an offense which results in a felony conviction. (§ 667.5, subd. (b).)
On October 8, 2019, the Governor signed Senate Bill 136 into law. This amends section 667.5, subdivision (b). Under this amendment, a one-year prior prison term enhancement will only apply if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.)
Prior to the Governor signing Senate Bill 136, the parties had briefed whether or not Lopez's four prior prison term enhancements should be stricken. That briefing did not include Senate Bill 136. Oral arguments occurred in this matter the day after the Governor signed this bill. For reasons not related to Senate Bill 136, respondent conceded at oral argument that three of Lopez's four prior prison term enhancements should be stricken.
On October 11, 2019, we directed the parties to submit supplemental briefing regarding Senate Bill 136 and its impact in this matter. Via supplemental briefing, the parties agree, as do we, that all four of Lopez's prior prison term enhancements must be stricken because of Senate Bill 136. It is undisputed that none of his four prior prison terms were for sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b).
In light of this change in law, we will not address the arguments which the parties had raised in the initial briefing.
Senate Bill 136 will become effective on January 1, 2020. Except when passed as an urgency measure, a statute enacted at a regular session of the Legislature generally becomes effective on January 1 of the year following its enactment. ( Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) Respondent concedes that, when Senate Bill 136 goes into effect, Lopez's judgment will likely not be final. Respondent further concedes that this change in law will apply to Lopez retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 742, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).) We agree.
We are to assume, absent evidence to the contrary, that the Legislature intended an "amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." ( People v. Brown (2012) 54 Cal.4th 314, 323, 142 Cal.Rptr.3d 824, 278 P.3d 1182, citing In re Estrada, supra , 63 Cal.2d at pp. 742-748, 48 Cal.Rptr. 172, 408 P.2d 948, fn. omitted.) A final judgment will not occur in this matter until 30 days after this opinion is issued. ( Cal. Rules of Court, rule 8.366(b)(1).) If one or more parties file a petition for rehearing, the date of finality will be extended further. ( Cal. Rules of Court, rule 8.268(b)(1)(A).) The parties will have 10 days after this decision becomes final to petition for review in the California Supreme Court. ( Cal. Rules of Court, rule 8.500(e)(1).) Only after a petition for review has been adjudicated in the state court of last resort can a party then petition for a writ of certiorari in the United States Supreme Court. ( U.S. Supreme Ct. Rules, rule 13(1) & (3).) For the purpose of determining the retroactive application of an amendment to a criminal statute, the finality of a judgment is extended until the time has passed for petitioning for a writ of certiorari in the United States Supreme Court. ( People v. Vieira (2005) 35 Cal.4th 264, 305-306, 25 Cal.Rptr.3d 337, 106 P.3d 990.)
It is clear that Lopez will not exhaust his appeal rights before January 1, 2020. As such, he benefits from Senate Bill 136. However, we need not remand this matter for resentencing. The trial court imposed the maximum possible sentence against Lopez with an upper term of eight years in count 1 for possession of a controlled substance (heroin) for sale ( Health & Saf. Code, § 11351 ). In a companion case, the court imposed a one-third consecutive term of 32 months for Lopez's 2015 conviction for transporting narcotics (heroin) for sale ( Health & Saf. Code, § 11352, subd. (a) ). With various enhancements, Lopez received an aggregate prison term of 17 years eight months.
Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion. ( Buycks, supra , 5 Cal.5th at p. 896, fn. 15, 236 Cal.Rptr.3d 84, 422 P.3d 531.) Accordingly, we will strike the four section 667.5, subdivision (b), enhancements imposed in this matter. We will direct the trial court to cause to be prepared an amended abstract of judgment reflecting these modifications, and to reduce Lopez's total prison sentence accordingly.
The amendments to section 667.5, subdivision (b), will not take effect until January 1, 2020. However, these amendments will be effective at the time this court issues the remittitur returning jurisdiction to the superior court.
IV. The Three-Year Enhancement Imposed Under Health And Safety Code Section 11370.2 Must Be Stricken. [NOT CERTIFIED FOR PUBLICATION]
See footnote *, ante , page 337.
DISPOSITION
Lopez's judgment is modified as follows. The four one-year enhancements imposed pursuant to Penal Code section 667.5, subdivision (b), are stricken. The three-year prior felony drug conviction enhancement pursuant to Health and Safety Code section 11370.2 is also stricken. With these modifications, Lopez's judgment is affirmed.
The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modifications and Lopez's resulting total prison sentence of 10 years eight months. The court shall forward a certified copy of the same to the appropriate authorities.
Levy, Acting P. J., and Franson, J., concurred.