People v. Donaldson CA5 ( 2021 )

Filed 12/14/21 P. v. Donaldson CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, F075916
Plaintiff and Respondent, (Super. Ct. Nos. BF167392A,
BF166043A, BF166044A)
v.
BRIAN LEE DONALDSON, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. H. A. Staley,
Judge.*
Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine
Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Retired Judge of the Kern Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Brian Lee Donaldson pled guilty to various charges and enhancements
in Kern Superior Court case Nos. BF166043A and BF166044A. 1 In August 2015, the
court sentenced defendant in case No. BF166043A to two years for felony possession of
methamphetamine for sale, enhanced by an additional three years for a Health and Safety
Code former section 11370.2, subdivision (c) enhancement. (Undesignated statutory
references are to the Health and Safety Code.) It imposed a concurrent term of 16
months for a violation of Penal Code section 496, subdivision (a) for receiving stolen
property. That same day, the court sentenced defendant in case No. BF166044A to eight
months for felony possession of methamphetamine for sale, to run consecutively with
defendant’s sentence in case No. BF166043A. The court imposed a “split sentence”
pursuant to Penal Code section 1170, subdivision (h)(5), ordering defendant to serve two
years of the five-year eight-month aggregate term in the county jail, then one year in a
substance abuse treatment program immediately upon release from the county jail, and
the remaining two years eight months on mandatory supervision pursuant to Penal Code
section 1170, subdivision (h).
In May 2017, a jury convicted defendant of a separate violation of section 11378,
possession of methamphetamine for sale (count 1) and misdemeanor possession of
methamphetamine (count 2) in case No. BF167392A. Defendant admitted he had
suffered two prior convictions within the meaning of former section 11370.2, and the
court dismissed two separate prior conviction allegations pursuant to former section
11370.2, subdivision (c), and two prison prior allegations.
In June 2017, the court sentenced defendant in case No. BF167392A to two years
on count 1 plus three years for each of the two former section 11370.2, subdivision (c)
enhancements, for a total term of eight years—four to be served in county jail and four to
1These cases were previously numbered 2014038211 and 2014006902, respectively,
before they were transferred from Ventura County to Kern County and renumbered pursuant to
Penal Code section 1203.9. We refer to them by their Kern County case numbers.
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be served on mandatory supervision. The court also sentenced defendant to 90 days on
count 2 and stayed that sentence pursuant to Penal Code section 654.
That same day, the court revoked mandatory supervision in case No. BF166043A
and reinstated the original five-year term, three years to be served in county jail and the
remainder on mandatory supervision. The court also revoked mandatory supervision in
case No. BF166044A and reinstated the original eight-month term to be served on
mandatory supervision. The court ordered the terms in case Nos. BF166043A and
BF166044A to run consecutive to each other but concurrent to the sentence in case
No. BF167392A.
In this consolidated appeal, defendant argued the former section 11370.2,
subdivision (c) enhancements imposed in case Nos. BF166043A and BF167392A must
be stricken in light of Senate Bill No. 180 (2017–2018 Reg. Sess.) (Senate Bill 180),
which narrowed the scope of section 11370.2, subdivision (c) to apply only to prior
convictions for narcotics sales involving a minor in violation of section 11380.
In our initial opinion, we concluded defendant was entitled to retroactive
application of Senate Bill 180 in case No. BF167392A, but not in case No. BF166043A
because that judgment became final before Senate Bill 180 went into effect. This matter
is presently before us for reconsideration after the Supreme Court granted defendant’s
petition for review and returned the matter to this court with directions to vacate our prior
opinion and reconsider the cause in light of People v. Esquivel (2021) 11 Cal.5th 671(Esquivel).
Notably, after the California Supreme Court’s opinion in Esquivel issued, Senate
Bill 483 was approved by the Governor and filed with the Secretary of State, to be
effective January 1, 2022. (Stats. 2021, ch. 728.) Subject to certain exceptions not
applicable here, Senate Bill 483 declares legally invalid enhancements imposed before
January 1, 2018, pursuant to former section 11370.2, and it states Senate Bill 180 should
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retroactively apply “to all persons currently serving a term of incarceration in jail or
prison for these repealed sentence enhancements.” (Stats. 2021, ch. 728, § 1.)
We now conclude defendant is entitled to retroactive application of Senate Bill
180 in both his cases in light of Esquivel and the passage of Senate Bill 483.
Accordingly, we remand with directions to the trial court to strike defendant’s
enhancements imposed pursuant to former section 11370.2, subdivision (c) and to
resentence defendant accordingly. In all other respects, we affirm the judgments.
FACTUAL BACKGROUND
June 2015 plea to April 2015 charges (Case No. BF166043A)
In April 2015, defendant was charged with felony possession of methamphetamine
for sale (Health & Saf. Code, § 11378; count 1) and receiving stolen property (Pen. Code,
§ 496, subd. (a); count 2) (case No. BF166043A). It was further alleged as to each count
that defendant committed the offenses while out on bail in another case (Pen. Code,
§ 12022.1, subd. (b)); and, with respect to count 1, that he had a prior conviction for
violating Health and Safety Code section 11378 (former § 11370.2, subd. (c)). Defendant
pled guilty to both counts and the related enhancements on June 5, 2015.
June 2015 plea to May 2014 charges (Case No. BF166044A)
In May 2014, defendant was charged with two counts of felony possession of
methamphetamine for sale (Health & Saf. Code, § 11378) (case No. BF166044A). It was
further alleged as to each count that defendant had a prior conviction for violating section
11378 (former § 11370.2, subd. (c)), and defendant was ineligible for probation because
of the same prior conviction (Pen. Code, § 1203.07, subd. (a)(1)).
On June 5, 2015, defendant pled guilty to count 1 and admitted the allegations he
had a prior drug sales conviction (former § 11370.2, subd. (c)) and was ineligible for
probation because of the prior conviction pursuant to Penal Code section 1203.7.
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August 2015 sentencing hearing (Case Nos. BF166043A and BF166044A)
The court held a sentencing hearing on multiple matters involving defendant on
August 27, 2015 including case Nos. BF166043A and BF166044A and multiple
misdemeanor cases. In case No. BF166043A, the court sentenced defendant to the
midterm of two years on count 1 (possession of methamphetamine for sale), enhanced by
an additional three years for the former section 11370.2, subdivision (c) enhancement.
On count 2 (receiving stolen property), the court sentenced defendant to the low term of
16 months, to run concurrently with his sentence on count 1. The court struck the Penal
Code section 12022.1, subdivision (b) out-on-bail enhancement allegation.
In case No. BF166044A the court sentenced defendant to eight months (one-third
the midterm) on count 1 (possession of methamphetamine for sale) pursuant to Penal
Code section 1170, subdivision (h), to be served consecutively to defendant’s sentence in
case No. BF166043A. The court struck the former section 11370.2, subdivision (c) prior
conviction enhancement.
The court imposed a “split sentence,” ordering defendant to serve two years of the
aggregate term of five years eight months in the county jail, then one year in a substance
abuse treatment program immediately upon release from the county jail, and the
remaining two years eight months on mandatory supervision pursuant to Penal Code
section 1170, subdivision (h).
On January 25, 2016, defendant admitted violating his mandatory supervision by
failing to complete the substance abuse treatment program. The court ordered defendant
to serve the one year he was to serve in the treatment program in county jail.
May 2017 jury trial on March 2017 charges (Case No. BF167392A) and revocation of
mandatory supervision on previous charges
In March 2017, defendant was charged with felony possession of
methamphetamine for sale (§ 11378, count 1) and misdemeanor possession of
methamphetamine (§ 11377, count 2) (case No. BF167392A). It was further alleged as to
count 1 that defendant had suffered three prior convictions for violating section 11378
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(former § 11370.2, subd. (c)), and that defendant had served two prior prison terms
within the meaning of Penal Code section 667.5, subdivision (b). As a result of the new
charges, the court was notified defendant was in violation of the terms of his mandatory
supervision in case No. BF166043A.
Jury trial commenced in case No. BF167392A on May 24, 2017. Two days later,
defendant admitted he had suffered two prior convictions within the meaning of section
11370.2, and the court dismissed the remaining prior conviction allegation pursuant to
section 11370.2, subdivision (c) and the prison prior allegations. The jury convicted
defendant of the two charged counts.
On June 29, 2017, the court denied probation and sentenced defendant to the
middle term of two years on count 1 plus three years for each of the two section 11370.2,
subdivision (c) enhancements, for a total term of eight years: four years to be served in
custody and four years to be served on mandatory supervision. The court also sentenced
defendant to 90 days on count 2 and stayed that sentence pursuant to Penal Code section
654. Defendant filed a notice of appeal that same day.
Also on June 29, 2017, the court revoked mandatory supervision in case
No. BF166043A and reinstated the original five-year term, three years to be served in
county jail and the remaining two years on mandatory supervision. The court also
revoked mandatory supervision in case No. BF166044A and reinstated the original eight-
month term with no modification, to be served on mandatory supervision. The court
ordered the terms in case Nos. BF166043A and BF166044A to run consecutive to each
other but concurrent to the sentence in case No. BF167392A. Our court ordered these
cases to be consolidated for purposes of appeal.
DISCUSSION
I. Senate Bill 180
Former section 11370.2, subdivision (c) provided for three-year sentence
enhancements for many drug-related prior convictions. (Stats. 1998, ch. 936, § 1, eff.
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Sept. 28, 1998.) Effective January 1, 2018, Senate Bill 180 narrowed the scope of section
11370.2, subdivision (c), eliminating the three-year enhancements for drug-related prior
convictions except where the prior conviction was for narcotics sales involving a minor
in violation of section 11380, an exception not applicable to defendant’s case. (Stats.
2017, ch. 677, § 1, eff. Jan. 1, 2018; see § 11370.2.)
II. The Section 11370.2, Subdivision (c) Enhancements Imposed in Case
No. BF167392A Must Be Stricken in Light of Senate Bill 180 and the Matter
Remanded for Resentencing
Defendant first argues the section 11370.2, subdivision (c) enhancements imposed
in case No. BF167392A must be stricken and the matter remanded for resentencing
because Senate Bill 180 became effective before judgment in that case became final. The
People concede Senate Bill 180 applies retroactively to case No. BF167392A under In re
Estrada (1965) 63 Cal.2d 740 (Estrada), and the matter should be remanded for
resentencing with instructions the section 11370.2 enhancements must be stricken. They
note, upon remand, the trial court has jurisdiction to modify every aspect of defendant’s
sentence on the counts that are affirmed and that Proposition 47, the Safe Neighborhoods
and Schools Act, does not require that a defendant’s total sentence be shortened.
Under Estrada, “where [an] amendatory statute mitigates punishment and there is
no saving clause, the rule is that the amendment will operate retroactively so that the
lighter punishment is imposed” if the amended statute takes effect before the judgment of
conviction becomes final. (Estrada, supra, 63 Cal.2d at p. 748; see id. at p. 744.) “The
Estrada rule rests on the presumption that, in the absence of a savings clause providing
only prospective relief or other clear intention concerning any retroactive effect, ‘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.’” (People v. Buycks (2018) 5 Cal.5th 857, 881–882 (Buycks),
quoting People v. Conley (2016) 63 Cal.4th 646, 657.) “‘The rule in Estrada has been
applied to statutes governing penalty enhancements, as well as to statutes governing
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substantive offenses.’” (Buycks, supra, at p. 882, quoting People v. Nasalga (1996) 12
Cal.4th 784, 792.)
Senate Bill 180 contains no statement regarding retroactivity, and its amendment
to section 11370.2 was an ameliorative change in the law. Thus, we agree with the
parties that it applies retroactively to nonfinal judgments under Estrada. Furthermore, as
discussed in more detail post, Senate Bill No. 483 (2021–2022 Reg. Sess.) (Senate Bill
483), to be effective January 1, 2022, expressly provides Senate Bill 180 should
retroactively apply to both final and nonfinal judgments. (Stats. 2021, ch. 728, § 1.)
Here, defendant filed a timely notice of appeal in case No. BF167392A and his
appeal was pending when Senate Bill 180 was enacted and took effect. Accordingly,
pursuant to Estrada, defendant may seek the benefit of Senate Bill 180 because judgment
in that case is not yet final—it has not yet reached final disposition in the highest court
authorized to review it. Thus, he is entitled to remand in case No. BF167392A and to
have the related section 11370.2 enhancements imposed in that case stricken. Upon
remand, “‘a full resentencing as to all counts is appropriate, so the trial court can exercise
its sentencing discretion in light of the changed circumstances.’” (Buycks, supra, 5
Cal.5th at p. 893.) However, the court must abide by the parameters for resentencing
articulated in Senate Bill 483.
III. Defendant Is Also Entitled to Retroactive Application of Senate Bill 180 to
His Sentence in Case No. BF166043A
Defendant next argues the sentence enhancements imposed pursuant to former
section 11370.2, subdivision (c) in case No. BF166043A must also be stricken because
judgment is not yet final and Estrada principles apply to permit him to seek the benefit of
Senate Bill 180. He notes, though the court sentenced him in August 2015, because the
court retained discretion to modify the original sentence, judgment is not yet final. He
further argues a certificate of probable cause is not necessary to challenge his sentence or,
if one is deemed necessary, he should be permitted to seek one in the interest of justice.
The People initially argued defendant was not entitled to any relief in case
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No. BF166043A because this case was final for Estrada purposes 60 days after the court
imposed the split sentence in August 2015. Furthermore, they asserted defendant’s
failure to obtain a certificate of probable cause precluded a challenge to the validity of his
plea. Alternatively, they contended any remand would subject defendant’s plea bargain
to reapproval or rejection by the court pursuant to Penal Code section 1192.5. However,
they now concede defendant is entitled to a remand for resentencing in light of the
passage of Senate Bill 483. We previously agreed with the People that judgment in case
No. BF166043A became final for Estrada purposes 60 days after the court imposed the
split sentence in August 2015. However, in light of our Supreme Court’s guidance in
Esquivel and the passage of Senate Bill 483, we revise our earlier analysis and conclude
defendant is also entitled to retroactive relief in this case.
First, defendant did not need a certificate of probable cause to seek retroactive
application of Senate Bill 180 to his sentence in case No. BF166043A. (See People v.
Stamps (2020) 9 Cal.5th 685, 698.) He is not looking to put aside or withdraw his plea,
nor does he claim the plea was invalid when made. (Ibid.) Rather, he seeks relief based
on a subsequent ameliorative change in the law. (Ibid.) Thus, he does not require a
certificate of probable cause. (Ibid.)
And the California Supreme Court’s recent decision in Esquivel establishes
judgment is not yet final in case No. BF166043A for Estrada purposes. Specifically, the
Esquivel court clarified “a matter is not ‘final’ for [retroactivity] purpose[s] merely
because the defendant has already been sentenced.” (Esquivel, supra, 11 Cal.5th at p.
676.) Rather, the Esquivel court held, “a case in which a defendant is placed on
probation with execution of an imposed state prison sentence suspended is not yet final
for [Estrada] purpose[s] if the defendant may still timely obtain direct review of an order
revoking probation and causing the state prison sentence to take effect.” (Id. at p. 673.)
This is because, for purposes of the Estrada presumption, the “‘criminal prosecution or
proceeding’ brought against defendant was not complete when the ameliorative
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legislation at issue took effect.” (Id. at p. 678.) Accordingly, the Esquivel defendant’s
case, in which he had pleaded guilty to a felony and admitted two prior prison terms, for
which he received a sentence of three years’ imprisonment for the felony and one
additional year for each of the two priors, was not yet final when his probation was
revoked and his stayed sentence was ordered to be executed. (Id. at pp. 673, 678.) Thus,
ameliorative legislation that took effect during the pendency of his appeal from the
revocation order was presumptively applicable, where he had not exhausted direct review
of the revocation order, time for him to seek that review had not expired, and he had not
successfully completed probation as of the date ameliorative legislation took effect. (Id.
at pp. 678, 680.)
Here, in August 2015, the court imposed a split sentence in case Nos. BF166043A
and BF166044A pursuant to Penal Code section 1170, subdivision (h)(5), meaning the
sentence was to be served “partly in county jail and partly under the mandatory
supervision of the county probation officer.”2 (People v. Scott, supra, 58 Cal.4th at pp.
1418–1419.) The court revoked defendant’s mandatory supervision in June 2017 and
Senate Bill 180 went into effect in January 2018. Defendant’s notice of appeal in case
No. BF166043A was deemed constructively filed in July 2017; thus, his direct appeal
was deemed pending when Senate Bill 180 went into effect. 3 Accordingly, the “‘criminal
prosecution or proceeding’ brought against defendant was not complete when the
ameliorative legislation at issue took effect”; so, defendant is entitled to its benefit.
(Esquivel, supra, 11 Cal.5th at p. 979.)
2In 2011, the Legislature enacted the Criminal Justice Realignment Act of 2011, under
which certain “low-level felony offenders … no longer serve their sentences in state prison” but
instead “serve their sentences either entirely in county jail or partly in county jail and partly
under the mandatory supervision of the county probation officer.” (People v. Scott (2014) 58
Cal.4th 1415, 1418–1419.)
3Pursuant to that order, defendant’s notice of appeal in case No. BF167392A was deemed
to be the constructive notice of appeal from the judgment in case No. BF166043A, and case
Nos. BF166043A and BF166044A were ordered to be consolidated with the appeal of case
No. BF167392A.
10.
In supplemental briefing filed after this matter was transferred back to us in light
of Esquivel, the parties disputed the proper remedy. The People referred us to the remedy
in People v. Barton (2020) 52 Cal.App.5th 1145 in which our court held,
“By retroactive application of Senate Bill 180, certain terms of the plea
agreement are no longer authorized by law. The parties can modify the
agreement to eliminate the provisions involving former section 11370.2,
which would be the functional equivalent of having the trial court strike the
enhancements, but the court is not obligated to approve the agreement as so
modified. The parties can also renegotiate the agreement, subject to the
trial court’s approval, or they can proceed to trial on reinstated charges.
Therefore, we reverse the judgment and remand for further proceedings.”
(Barton, at p. 1150.)
Defendant argued his case was distinguishable from Barton because he entered an open
plea rather than entering into a stipulated plea agreement. So, there was no agreement or
bargained-for terms between defendant and the court. He argued in this case, the court
should simply strike the three-year enhancement pursuant to its power under Penal Code
section 1260. As discussed post, the People rescinded their argument regarding the
proposed remedy in subsequent letter briefing in light of the passage of Senate Bill 483.
First, we agree defendant’s case is distinguishable from one in which a defendant
entered into a stipulated plea agreement. Defendant entered an open plea. Thus, no
promises or representations were made regarding the sentence he would receive. (See
People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4 [“An open plea is one under which the
defendant is not offered any promises”].) Accordingly, striking the invalid enhancements
in this case does not contravene a plea bargain for a specified term. (Cf. People v.
Stamps, supra, 9 Cal.5th at p. 700.)
Here, pursuant to defendant’s pleas, he could have been sentenced to county jail
and/or home detention for a maximum of eight years eight months in case
No. BF166043A and six years eight months in case No. BF166044A. The matter of
sentencing was left to the discretion of the trial judge, and the open plea agreement
contemplated a range of possible sentencing outcomes. Defendant’s plea permitted, but
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did not require, the court to strike his former section 11370.2 enhancements. In fact, the
court struck the former section 11370.2 enhancement in case No. BF166044A. Under
these circumstances, striking the three-year former section 11370.2 enhancement in case
No. BF166043A would not be inconsistent with the open plea agreement. The sentence
would stay within the range of possible outcomes agreed to by the parties. Thus, striking
the enhancement while preserving the plea deal does not deprive the People of the benefit
of their bargain, or require the court to unilaterally restructure the terms of a plea deal.
(See People v. Henderson (2021) 67 Cal.App.5th 785, 789.)
Furthermore, after the parties submitted their first round of supplemental briefing
and the California Supreme Court’s opinion in Esquivel issued, Senate Bill 483 was
approved by the Governor and filed with the Secretary of State, to be effective January 1,
2022. (Stats. 2021, ch. 728, § 1.) This legislation, in relevant part, declares legally
invalid enhancements imposed before January 1, 2018, pursuant to former section
11370.2 (except for any enhancement imposed for a prior conviction of violating or
conspiring to violate § 11380). (Stats. 2021, ch. 728, § 2.) It states Senate Bill 180
should retroactively apply “to all persons currently serving a term of incarceration in jail
or prison for these repealed sentence enhancements.” (Stats. 2021, ch. 728, § 1.)
Importantly, the bill expressly states the Legislature’s intent “that any changes to the
sentence as a result of [Senate Bill 483] shall not be a basis for a prosecutor or court to
rescind a plea agreement.” (Ibid.)
In a subsequent supplemental letter brief, the People concede defendant is entitled
to remand for resentencing of both his newer and older cases pursuant to Senate Bill 483.
They acknowledge they initially argued the enhancements imposed pursuant to a plea
bargain could not simply be “lopped off given the restrictions of Penal Code section
1192.5.” However, they conclude Senate Bill 483 “will trump that argument and
specifically provides that it is the Legislature’s intent that ameliorative changes resulting
from [Senate Bill] 180 should not be the basis for the court or the prosecutor to rescind a
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plea agreement. As such [the People] no longer advance[] this argument.” They further
note, though the legislation is not set to take effect until January 1, 2022, defendant’s case
will not be final until after the new law’s effective date. So, the new law may be applied
early to defendant’s cases in the interest of judicial economy. In his supplemental letter
brief, defendant agrees with the People regarding the effect of Senate Bill 483 and he
asks us to strike the section 11370.2 enhancements and remand all three of his cases to
the trial court for a full resentencing.
Accordingly, whether the judgment in case No. BF166043A is final and whether
defendant entered into a stipulated plea agreement or open plea are largely irrelevant
because, pursuant to the express language of the new law, even if the judgment was final
and the section 11370.2 enhancements were part of a plea agreement, the court would
still be required to strike these sentence enhancements without permitting the prosecutor
the opportunity to rescind the plea agreement or the court to withdraw its approval. (Cf.
People v. Stamps, 9 Cal.5th at p. 701 [“The Legislature may have intended to modify the
sentencing scheme, but the legislative history does not demonstrate any intent to overturn
existing law regarding a court’s lack of authority to unilaterally modify a plea
agreement”].)
Additionally, Senate Bill 483 mandates the defendant be resentenced. The new
sentence must be lesser than the one originally imposed unless the court finds by clear
and convincing evidence imposing a lesser sentence would endanger public safety.
(Stats. 2021, ch. 728, § 2.) Relevant here, unless the court originally imposed the upper
term, the court may not impose a sentence exceeding the middle term unless there are
circumstances in aggravation justifying imposition of a term of imprisonment exceeding
the middle term and those facts have been stipulated to by defendant, or have been found
true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. (Ibid.)
In case No. BF166043A, the court originally sentenced defendant to the midterm
of two years on count 1 (possession of methamphetamine for sale), enhanced by an
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additional three years for the former section 11370.2, subdivision (c) enhancement, and
the low term of 16 months on count 2 (receiving stolen property) to run concurrently with
his sentence on count 1. The court struck the Penal Code section 12022.1, subdivision
(b) out-on-bail enhancement allegation.
We remand for the court to strike the invalid enhancement. Upon remand, “‘a full
resentencing as to all counts is appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances.’” (Buycks, supra, 5 Cal.5th at p. 893.)
However, in accordance with Senate Bill 483, the court is directed to resentence
defendant to a lesser sentence than the one originally imposed, unless the court finds by
clear and convincing evidence imposing a lesser sentence would endanger public safety.
DISPOSITION
Case Nos. BF167392A, BF166043A, and BF166044A are remanded with
directions to the trial court to strike the former section 11370.2, subdivision (c)
enhancements and to resentence defendant in accordance with the guidelines in Senate
Bill 483. In all other respects, the judgments are affirmed.
PEÑA, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
DESANTOS, J.
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