Opinion
F077270
06-10-2020
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY LEE SIGNORELLI, Defendant and Appellant.
Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F17906920)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
INTRODUCTION
Defendant Jeffrey Lee Signorelli was apprehended driving a vehicle that was stolen two and one-half weeks earlier. He was charged in count 1 with unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851, subdivision (a), and receiving a stolen vehicle in violation of Penal Code section 496d, subdivision (a), in count 2. The jury convicted him on count 1 of unlawfully driving a vehicle and on count 2 of receiving a stolen vehicle; and he admitted that he has a prior conviction for violating Vehicle Code section 10851, subdivision (a), and that he served two prior prison terms (§§ 666.5, 667.5, former subd. (b)).
All further statutory references are to the Penal Code unless otherwise noted.
On count 1, the trial court imposed the middle term of three years pursuant to section 666.5, subdivision (a), and an additional two years for serving two prior prison terms within the meaning of section 667.5, former subdivision (b), for a total determinate term of five years to be served in local custody. The court imposed the same sentence on count 2 and stayed the sentence under section 654.
On appeal, defendant claims that he is entitled to reversal of both counts because the trial court erred in precluding evidence of what he was told by the man he allegedly bought the stolen vehicle from, resulting in prejudice under both federal and state law. If we find he forfeited the claim by failing to make an offer of proof that the alleged seller's statement was admissible for a nonhearsay purpose, in compliance with Evidence Code section 354, he argues that trial counsel rendered ineffective assistance of counsel. Defendant also claims that the trial court erred in failing to instruct the jury that it had to find value as an element of receiving a stolen vehicle under section 496d.
The People dispute defendant's entitlement to relief on the claims raised, but the parties agree in supplemental letter briefs filed pursuant to Government Code section 68081, that the two prior prison term enhancements imposed under section 667.5, former subdivision (b), must be stricken under Senate Bill No. 136, effective January 1, 2020 (Stats. 2019, ch. 590, § 1, pp. 1-4 (Senate Bill No. 136)).
We reject defendant's claims of error. Defendant forfeited review of his claim that the trial court erred in excluding evidence of the alleged seller's statement as hearsay because he failed to make an offer of proof regarding its nonhearsay purpose, and even if we assume for the sake of argument that trial counsel was ineffective for failing to notify the court that the evidence was admissible for a nonhearsay purpose, the exclusion was harmless. Furthermore, defendant's instructional error claim is foreclosed in light of the California Supreme Court's recent decision in People v. Orozco, holding that Proposition 47 does not apply to convictions for receiving a stolen vehicle under section 496d. (People v. Orozco (2020) 9 Cal.5th 111, 122-123 (Orozco).)
However, we agree with the parties that under Senate Bill No. 136, defendant is entitled to relief from the two prior prison term enhancements. Therefore, we shall strike the enhancements and remand the matter under the full resentencing rule. (People v. Buycks (2018) 5 Cal.5th 857, 893, 896, fn. 15; People v. Lopez (2019) 42 Cal.App.5th 337, 342.) We otherwise affirm the judgment.
FACTUAL SUMMARY
I. Prosecution Case
Victim Paul E. left town for work at approximately 4:00 a.m. on November 4, 2017. At around 8:00 a.m., a family member notified him that his 1995 pickup truck, which had been parked on the street in front of his house, was missing. The truck was locked and the windows were rolled up when Paul parked it the night before. He reported the truck stolen and Officer Hernandez met with him later that afternoon to take a report.
Paul testified that he purchased the truck the year before for $1,500, he did not know defendant, he did not give anyone permission to drive the truck and all three keys to the vehicle were accounted for when it was stolen. There was no glass in the street where the truck was parked, but vehicles may be accessed without forced entry by using a "Slim Jim" or, commonly, a shaved key that also functions as a master key to start the vehicle.
On November 22, 2017, at around 9:00 p.m., Deputy Guzman, who at that time was an officer with the Selma Police Department, saw a pickup truck cross the yellow line in the road and he called in the license plate before initiating a vehicle stop. After Guzman was informed the truck was reported stolen, he waited for backup and then pulled the truck over without incident.
Defendant was driving and he had two passengers with him. Guzman observed that the ignition switch was ripped out and placed under the driver's seat and that wires were hanging down from the steering column. He did not observe any major damage other than to the ignition and he described the truck as in fair to good condition. The windows were all intact. Guzman testified that the Kelley Blue Book value for the truck was between $1,600 and $3,400.
The truck had approximately 300,000 miles on it, but Paul testified that prior to the theft, the interior and exterior were in good condition, it ran well and the ignition was intact, although he was starting to have problems with it "catch[ing] on reverse." Paul testified that when the truck was recovered, it had a bent front fender that interfered with opening both the door and the hood, the hubcaps were missing, one tire had been changed out, the steering column was damaged, and his tools and the tire jack were missing. The interior was stained and filled with dirty clothes, a pair of gloves, syringes, and other "debris," including bags of recycling, a bike, a milk carton and some walnuts in a sack. Paul testified that someone had gone through the glovebox, but the registration in his name was still in there, along with a piece of EBT paperwork bearing a name he could not recall and did not recognize.
II. Defense Case
Defendant testified he had one felony vandalism conviction from 2014 and a felony conviction for unlawfully driving or taking a vehicle from 2012. In November 2017, defendant was homeless and living in the pickup truck at a walnut orchard, where he had the owner's permission to stay and pick up the extra walnuts left on the ground after harvest for extra cash. He also collected recyclables for extra cash, but he testified he was a floor installer by trade and the others were just side jobs.
Defendant's 2012 conviction was initially sanitized for the jury, but the nature of the felony was elicited on cross-examination after defendant testified on direct examination that he had "never stolen a vehicle in [his] life." On redirect examination, he testified that he had title to the vehicle in question, but never put it in his name. He stated he gave the vehicle to a girlfriend to drive and, after he took it back when they broke up, she reported it stolen.
Defendant said he was in the market for a pickup truck to haul the walnuts he collected and, in the beginning of November, he ran into an acquaintance of his, Curtis M., who was driving the truck around with a for sale sign in the window. After test-driving the truck, defendant agreed to buy it from Curtis for $600. Defendant borrowed $500 from another friend that day, bought the truck and paid his friend back the next day after selling some walnuts. Defendant said Curtis provided a handwritten bill of sale and signed the title over to him, but the title was so "washed out" and "beat up" that it was not legible. Defendant withheld the final $100 for the truck pending a legible title, which Curtis had requested. Defendant did not follow-up on the title in the weeks after he purchased the truck, however, because he was busy with the walnut harvest.
Defendant testified that at the time of purchase, the truck had some dings in it, the taillights were broken, all four tires were "shot," the brakes were bad, it would not go into reverse and the ignition had been pulled apart. Defendant fixed the taillights and the brakes, and said that the tire Paul testified was changed out after the theft was on the truck when he bought it. Defendant described the glovebox as empty except for some miscellaneous items like nuts and bolts and his folder, which had his EBT paperwork in it. Defendant denied seeing a registration form in the glovebox and he stated that he told the officer who pulled him over that the bill of sale and faded title signed by Curtis were in the glovebox. Defendant said he did not identify Curtis when he was pulled over and he denied telling Officer Guzman that Curtis was homeless.
Defendant also denied the truck was a mess. He said he had just done laundry and his clothes were folded, and he had 600 or 700 pounds of bagged walnuts in the back of the truck. He denied any knowledge of the syringes and stated he does not use drugs, but they could have belonged to either a homeless friend he let stay in the truck with him for approximately five days or the male passenger in the truck at the time of his arrest.
Defendant testified that he did not steal the truck, know it was stolen or have reason to suspect it was stolen. Regarding the damaged ignition, he stated that only the ignition switch was removed and there were no exposed wires as shown in the prosecution's photos. Defendant explained that he kept the "old beat up key" in the lock assembly under the seat so he would not lose it, and the removal of the ignition switch did not make him suspicious because it was an old truck and "[p]arts wear out." He also testified that "[he] know[s] quite a bit about mechanics" and "when the steering locks up, you have to physically take the lock off, because electronically—now the new ones are electronically—engage and disengage from their electronics." Defendant said he had taken ignitions apart in his own vehicles and once had an RV he started using a screwdriver, which is what he used for the pickup truck.
III. Rebuttal
Officer Guzman testified that after being pulled over, defendant said he bought the truck from a homeless man he knew as Curtis for $600, but he did not have the pink slip. Defendant said he was homeless as well, but also stated the bill of sale was either in the truck or at his home. Guzman briefly inspected the vehicle after he pulled defendant over, but he did not see a bill of sale, a title or 600 pounds of walnuts in the back and, in his opinion, the truck would not hold that much weight in walnuts, at least not without being noticeable.
Officer Guzman also testified that, consistent with a stolen vehicle, the ignition to the truck was "punched," which meant it did not require a key and could be started by shoving any object into the ignition.
DISCUSSION
I. Exclusion of Evidence
A. Parties' Positions
During trial, the court twice sustained the prosecutor's hearsay objections to testimony by defendant regarding what Curtis told him about the dismantled ignition. On appeal, defendant claims the trial court erred in excluding the evidence because it was relevant and the statement was admissible for the nonhearsay purpose of establishing his state of mind rather than for its truth. Defendant contends that it was clear from the context of the direct examination that the statement was admissible for a nonhearsay purpose, thereby satisfying Evidence Code section 354, discussed below. Alternatively, if we find the failure to make an offer of proof forfeited the claim on review, he received ineffective assistance of counsel. Defendant asserts that the error interfered with his ability to present a complete defense, and that it was prejudicial under both federal and state standards of review.
The People respond that the trial court did not abuse its discretion in excluding the evidence as hearsay because defendant failed to make an offer of proof that the statement was being offered for a nonhearsay purpose, pursuant to Evidence Code section 354. The People contend that, in any event, if error by the trial court or trial counsel is assumed, the error was harmless.
We agree with the People that defendant's failure to comply with Evidence Code section 354 forfeited review of his evidentiary claim and that even if we assume trial counsel was ineffective for failing to make an offer of proof, no prejudice resulted.
B. Evidentiary Claim Forfeited
Relevant to defendant's claim of error, the following exchange occurred during trial counsel's direct examination of defendant:
"[DEFENSE COUNSEL:] At the time you first looked over the truck with Curtis, is there anything about the ignition that catches your attention?
"[DEFENDANT:] Yeah. They pulled the ignition apart—well, this is what he told me is because of the—
"[PROSECUTOR]: Objection, hearsay, what Curtis told this defendant.
"THE COURT: Sustained.
"[DEFENSE COUNSEL]: ... Well, did you make inquiry about the ignition?
"[DEFENDANT:] Yes, I did.
"[DEFENSE COUNSEL:] What did you—what was the condition of the ignition?
"[DEFENDANT:] I asked him why the ignition was pulled apart.
"[PROSECUTOR]: Same objection. Hearsay.
"THE COURT: It is. Sustained.
"[DEFENSE COUNSEL]: Just—well, this—for the purpose of this question, I'm just asking you to describe the condition of the ignition.
"[DEFENDANT:] The steering lock was pulled from the steering column because it jammed somehow. It jammed, that's why they took it off there. And that has the key—the key ignition—with the key in it and you turn it, it disengages the steering lock which it wasn't doing. Something electrical. It wasn't letting it unlock. They pulled the actual plug off the back of the ignition—the lock assembly, they were using that to turn it to start it. That's the way I got it, you know."
Section 1200 of the Evidence Code provides, in relevant part, "'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated," and "[e]xcept as provided by law, hearsay evidence is inadmissible." (Italics added.) As defendant argues here, "'[a]n out-of-court statement can be admitted for the nonhearsay purpose of showing that it imparted certain information to the hearer, and that the hearer, believing such information to be true, acted in conformity with such belief.'" (People v. Clark (2016) 63 Cal.4th 522, 562, quoting People v. Montes (2014) 58 Cal.4th 809, 863.)
However, Evidence Code section 354 provides:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:
"(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means;
"(b) The rulings of the court made compliance with subdivision (a) futile; or
"(c) The evidence was sought by questions asked during cross-examination or recross-examination."
Defendant contends that "the 'substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked,'" but we do not agree. As previously set forth, trial counsel twice sustained the prosecutor's objections to defendant's testimony regarding what Curtis told him about the dismantled ignition. After the trial court sustained the prosecutor's objections on hearsay grounds, trial counsel did not make an offer of proof that the statement was admissible for a nonhearsay purpose. The record in this case does not reflect that counsel was attempting to elicit testimony on Curtis's statement to defendant. To the contrary, counsel asked defendant about the condition of the ignition and it was defendant's answers that drew the hearsay objections. In any event, in the absence of an offer of proof or other indication in the record that the trial court was on notice that Curtis's statement was being offered for a nonhearsay purpose, defendant forfeited review of this claim on appeal. (People v. Ramos (1997) 15 Cal.4th 1133, 1178; accord, People v. Clark, supra, 63 Cal.4th at pp. 561-562.) As discussed next, we also reject defendant's derivative claim of ineffective assistance of counsel because assuming error, it was harmless.
C. Any Error by Counsel Harmless
As a threshold matter, we reject defendant's contention that the exclusion of the evidence in this case deprived him of a defense. The exclusion of evidence denies a defendant due process under the Fourteenth Amendment to the United States Constitution when it renders his trial fundamentally unfair. (People v. Quartermain (1997) 16 Cal.4th 600, 626.) Here, evidence of what Curtis told defendant regarding the dismantled ignition was relevant to defendant's state of mind and his claim that he did not know the truck was stolen and did not have reason to suspect it was stolen. However, the record expressly reflects that while defendant was precluded from repeating what Curtis said to him, he nevertheless testified that the truck came to him in that condition and he testified to the mechanical reason why the ignition had been dismantled by someone else, which is the same information that Curtis's statement would have evidenced.
Turning to trial counsel's failure to make an offer of proof under Evidence Code section 354, "'[a] defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two-pronged showing: that counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.'" (People v. Woodruff (2018) 5 Cal.5th 697, 736, quoting People v. Alexander (2010) 49 Cal.4th 846, 888 [citing Strickland v. Washington (1984) 466 U.S. 668, 687].) Rarely is ineffective assistance of counsel established on appeal since the record usually sheds no light on counsel's reasons for action or inaction. (People v. Woodruff, supra, at p. 736, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.)
As stated, it was defendant's answers rather than counsel's questions that drew the hearsay objections but, even if we assume error, there is no reasonable probability of a different outcome had Curtis's statement to defendant about the dismantled ignition been admitted. Defendant's state of mind was highly relevant because his knowledge that the truck was stolen was the linchpin in his convictions on both counts, but he denied that he had anything to do with dismantling the ignition and he testified regarding why the ignition had been dismantled by someone else. Given the substance of defendant's testimony regarding the state of the ignition and why it was dismantled, Curtis's statement about the ignition would have been cumulative and would have added very little, if anything, to the issue.
Furthermore, this was not a close case that pivoted on what Curtis said. To the contrary, the ignition in the truck was dismantled, wires were hanging down and defendant was using a screwdriver to start it; he had a prior conviction for unlawfully taking or driving a vehicle; he was knowledgeable about dismantling ignitions and driving vehicles using a screwdriver or similar flat object; he allegedly bought the vehicle from someone who did not testify at trial; and he was allegedly provided with a handwritten bill of sale and a title so washed out it was illegible, neither of which was located in the truck by either Officer Guzman or Paul. Under these circumstances, we are not persuaded by defendant's argument that had the jury heard Curtis's statement, there is a reasonable probability the outcome would have been different. II. Instructional Error Claim Foreclosed by Decision in Orozco
Relying on People v. Williams, defendant claims the trial court erred when it failed to instruct the jury that as to count 2 for receiving stolen property, it had to determine whether the value of the truck was greater than $950. (People v. Williams (2018) 23 Cal.App.5th 641, 644, disapproved by Orozco, supra, 9 Cal.5th at p. 122.) This claim is founded on the argument that Proposition 47, a 2014 voter initiative that "redefined certain common theft- and drug-related felonies as either misdemeanors or felonies, depending on the offender's criminal history," and expressly included receiving stolen property worth $950 or less under section 496, also applies to receiving stolen vehicles under section 496d. (People v. DeHoyos (2018) 4 Cal.5th 594, 597-598; accord, People v. Martinez (2018) 4 Cal.5th 647, 651-652.)
Although Proposition 47 did not amend section 496d or otherwise refer to it, the Court of Appeal in People v. Williams concluded that Proposition 47 applies to convictions under section 496d by virtue of section 490.2, which was added to the Penal Code by Proposition 47 and refers to "'obtaining any property by theft'" valued at less than $950. (People v. Williams, supra, 23 Cal.App.5th at p. 644, disapproved by Orozco, supra, 9 Cal.5th at p. 122.) After briefing was complete in this case, the Court of Appeal in People v. Wehr analogized section 490.2 to section 496, subdivision (a), which was amended by Proposition 47, explaining, "Just as section 490.2 applies to obtaining any property by theft, section 496 applies to 'buy[ing] or receiv[ing] any property that has been stolen.' (§ 496, subd. (a), italics added.) And as [People v.] Page teaches, a car qualifies as '"any property."' [Citation.] Thus, receiving a stolen car valued at no more than $950 must be treated as a misdemeanor pursuant to section 496." (People v. Wehr (2019) 41 Cal.App.5th 123, 131, disapproved by Orozco, supra, at p. 122 and quoting People v. Page (2017) 3 Cal.5th 1175, 1183.)
Section 496, subdivision (a), provides, "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. [¶]. A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property."
Section 496d, subdivision (a), provides, "Every person who buys or receives any motor vehicle, as defined in Section 415 of the Vehicle Code, any trailer, as defined in Section 630 of the Vehicle Code, any special construction equipment, as defined in Section 565 of the Vehicle Code, or any vessel, as defined in Section 21 of the Harbors and Navigation Code, that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor vehicle, trailer, special construction equipment, or vessel from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or three years or a fine of not more than ten thousand dollars ($10,000), or both, or by imprisonment in a county jail not to exceed one year or a fine of not more than one thousand dollars ($1,000), or both."
However, the California Supreme Court recently disapproved People v. Wehr and People v. Williams in Orozco. (Orozco, supra, 9 Cal.5th at p. 122.) The high court distinguished Proposition 47's addition of section 490.2 to the Penal Code pertaining to theft with its amendment of existing section 496, subdivision (a), pertaining to receiving stolen property, on two bases. The court stated, "First, section 490.2 is intended to reclassify conduct previously criminalized by other offenses into the offense of petty theft. Instead of modifying the penalties for the existing grand theft statutes, section 490.2 separately defines a category of conduct called 'petty theft' that sweeps broadly to include theft of any property valued at $950 or less. [Citation.] For this reason, '"the independent clause [in section 490.2] containing the definition of petty theft stands on its own and means what it says."' [Citation.] Section 490.2 was therefore intended to function as a sweeping catchall that would capture all forms of theft, including those chargeable under [Penal Code] section 484e or Vehicle Code section 10851." (Orozco, supra, 9 Cal.5th at p. 120.)
"Proposition 47's amendment to section 496[, subdivision ](a), by contrast, does not exhibit the same intent to reclassify conduct criminalized by section 496d." (Orozco, supra, 9 Cal.5th at p. 120.) "Proposition 47's amendment to section 496[, subdivision ](a) did not create a new offense or purport to broadly reclassify several existing offenses, but rather reduced the punishment for a subset of an existing offense. The term 'the offense' in the amended portion plainly refers to the offense specified in the previous sentence, i.e., receipt of stolen property punished under section 496[, subdivision ](a). Thus, unlike section 490.2, the clause in section 496[, subdivision ](a) reducing punishment for receipt of stolen property valued at $950 or less does not '"stand[] on its own."' [Citation.] It refers exclusively to offenses punished under section 496[, subdivision ](a)." (Ibid.)
Second, "the 'notwithstanding' clause in section 490.2 clarifies that if the statute conflicts with a preexisting statute punishing the same conduct, section 490.2 would override that other statute." (Orozco, supra, 9 Cal.5th at p. 121.) "The absence of any 'notwithstanding' clause in section 496[, subdivision ](a) indicates that the drafters did not intend for the statute to affect conduct criminalized in other statutes, let alone reclassify conduct covered in those statutes." (Ibid.)
In rejecting the reasoning in People v. Williams, the court explained that receiving stolen property is not a theft offense: it does not include the elements of "'taking with intent ... to permanently deprive the owner of its possession[]'" as does theft; "[b]ecause a 'theft conviction operates as a bar to a receiving conviction' [citation], it is difficult to understand how receiving stolen property could amount to theft[]"; and "interpreting receiving stolen property to be a form of a theft offense would render part of Proposition 47 superfluous." (Orozco, supra, 9 Cal.5th at pp. 121, 122.)
The decision in Orozco directly forecloses defendant's claim that Proposition 47 applies to section 496d and that the trial court erred in failing to instruct the jury it had to find value as an element of receiving a stolen vehicle. We therefore reject the claim.
III. Senate Bill No. 136
Finally, as previously set forth, the trial court imposed two 1-year prior prison term enhancements. (§ 667.5, former subd. (b).) In supplemental briefing, defendant requests that the enhancements be stricken in light of Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020.
Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant here, trial courts are required to impose a three-year sentence for each prior, separate prison term served by the defendant for a violent felony where the current offense is also a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant to former subdivision (b), and subject to exceptions not relevant here, trial courts are required to impose an additional one-year term for each prior, separate prison term or county jail felony term. As amended by Senate Bill No. 136, subdivision (b) of section 667.5 limits imposition of the additional one-year term to each prior, separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
In accordance with the California Supreme Court's decision in In re Estrada (1965) 63 Cal.2d 740, 744, "'"[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].'" (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v. DeHoyos, supra, 4 Cal.5th at p. 600.) The parties agree that Senate Bill No. 136 is retroactive under In re Estrada and, therefore, the amendment to section 667.5, subdivision (b), applies in this case.
The parties also agree that defendant's prior felony convictions for unlawfully taking or driving a vehicle under Vehicle Code section 10851, subdivision (a), and for vandalism under section 594, subdivision (b), are not qualifying offenses under section 667.5, subdivision (b), as amended. We accept the People's concession on both points and order the two 1-year prior prison term enhancements stricken.
The trial court imposed the middle term of three years under section 666.5, subdivision (a). Because the court exercised discretion in selecting the middle term, remand for resentencing is appropriate. (People v. Buycks, supra, 5 Cal.5th at pp. 893, 896, fn. 15; People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
DISPOSITION
Pursuant to Senate Bill No. 136, the two prior prison term enhancements imposed under section 667.5, former subdivision (b), are stricken and this matter is remanded for resentencing. Following resentencing, the trial court shall forward the amended abstract of judgment to the appropriate authorities. Except as modified, the judgment is affirmed.