People v. DeJesus CA3 ( 2021 )

Filed 12/10/21 P. v. DeJesus CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C093354
Plaintiff and Respondent, (Super. Ct. No. 19F3389)
v.
PETER LUIS DEJESUS,
Defendant and Appellant.
Defendant Peter Luis DeJesus entered an open plea of no contest to several
offenses and admitted two prior prison term enhancements. The court suspended
execution of defendant’s 14-year sentence and placed him on probation; defendant did
not appeal the probationary order.
After Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) went into
effect, limiting the offenses that qualify for a prior prison term enhancement under Penal
Code section 667.5, subdivision (b) (statutory section citations that follow are to the
Penal Code), the court ordered defendant’s suspended 14-year sentence into effect for
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violating the terms of his probation. The court declined to strike the previously imposed
two one-year prior prison term enhancements even though defendant no longer qualified
for the enhancements under Senate Bill 136.
On appeal, defendant contends, and the People concede, that the trial court erred in
declining to strike both prior prison term enhancements because Senate Bill 136 applies
retroactively to his case. We accept the concession and shall remand for resentencing.
FACTS AND HISTORY OF THE PROCEEDINGS
In March 2019, defendant was arrested after physically assaulting the victim
outside a restaurant; the victim suffered injuries to his face and mouth requiring stitches.
He was charged with battery with serious bodily injury (§ 243, subd. (d), count 1), and
assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). As to each
count, it was further alleged that defendant had a prior strike conviction (§ 1170.12), a
prior serious felony conviction (§ 667, subd. (a)), had served two prior prison terms
(§ 667.5, subd. (b)), and personally inflicted great bodily injury (§ 12022.7).
In July 2019, defendant entered an “open plea” of no contest to counts 1 and 2 and
admitted each of the enhancement allegations. At the time of the plea, the court said it
was tentatively inclined to grant a Romero (People v. Superior Court (Romero) (1996)
13 Cal.4th 497) motion to strike defendant’s strike.
At the sentencing hearing in August 2019, the court struck defendant’s prior strike,
and sentenced him to 14 years in state prison, including the upper term of four years for
count 2, plus five years for the prior serious felony enhancement, three years for the
personal infliction of great bodily injury enhancement, and one year for each of
defendant’s two prior prison terms. For count 1, the court imposed and stayed a sentence
under section 654. The court suspended execution of sentence and placed defendant on
probation.
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Four petitions to revoke defendant’s probation were filed, alleging numerous
violations of probation. Defendant admitted the allegations in the first petition, including
that on two occasions he failed to attend an orientation as directed by probation, that he
was terminated from a sober living program due to rules violations and then failed to
report his new address to probation, and that he failed to report to probation as directed.
The remaining probation violation allegations were dismissed, and the matter was
continued for sentencing.
On January 5, 2021, the trial court declined to reinstate defendant on probation
and ordered the suspended 14-year sentence into effect. Although Senate Bill 136
became effective in 2020, after the execution of defendant’s sentence was suspended in
2019 but before the court revoked probation and ordered the suspended sentence into
effect in 2021, the trial court found that because defendant had failed to appeal the
original probation order that he was not entitled to the ameliorative benefits of Senate Bill
136 on his two prison prior enhancements. Defendant timely appealed.
DISCUSSION
Senate Bill 136 made the one-year prior prison term enhancement under section
667.5, subdivision (b), applicable only if a defendant had served a prison term for certain
sexually violent offenses. (See Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020, amending
§ 667.5, subd. (b); People v. Winn (2020) 44 Cal.App.5th 859, 872.) If the amended
provision had been in effect at the time the court imposed sentence but suspended its
execution in August 2019, it would not have applied to defendant’s two prior prison
terms, which were for assault with a firearm (§ 245, subd. (a)(2)) and possession of drugs
or alcoholic beverages in prison or jail (§ 4573.8).
The parties agree, as do we, that Senate Bill 136 applies retroactively to
defendant’s case. (People v. Esquivel (2021) 11 Cal.5th 671, 678; In re Estrada (1965)
63 Cal.2d 740.) “When new legislation reduces the punishment for an offense, we
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presume that the legislation applies to all cases not yet final as of the legislation’s
effective date.” (Esquivel, at p. 673.) Our Supreme Court in Esquivel recently held that
where a defendant is placed on probation with execution of a state prison sentence
suspended, like defendant was here, his case is not yet final for Estrada retroactivity
purposes if the defendant may still obtain direct review of an order revoking probation
and causing the state prison sentence to take effect. (Esquivel, at p. 673.) Because the
court ordered defendant’s imposed 14-year sentence into effect after Senate Bill 136
became effective, defendant is entitled to the ameliorative benefits of the amended statute
while his case is pending on appeal as the case is not yet final under Estrada. The trial
court thus erred in declining to strike defendant’s two one-year prior prison term
enhancements.
DISPOSITION
The judgment is reversed and the matter is remanded for resentencing consistent
with this opinion.
HULL, Acting P. J.
We concur:
ROBIE, J.
KRAUSE, J.
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