People v. Samaro CA3 ( 2020 )

Filed 11/13/20 P. v. Samaro 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
THE PEOPLE, C090149
Plaintiff and Respondent, (Super. Ct. No. CRF187391)
v.
ARTHUR SAMARO,
Defendant and Appellant.
Defendant Arthur Samaro appeals the sentence imposed following his conviction
for evading a peace officer with a prior prison term enhancement. He contends, and the
People properly concede, the one-year prior prison term enhancement imposed pursuant
to Penal Code section 667.5, subdivision (b) (667.5(b); statutory section references that
follow are to the Penal Code, unless otherwise set forth) must be stricken because of
recently adopted legislation. We agree and remand for resentencing.
FACTS AND PROCEDURAL HISTORY
The facts underlying defendant’s conviction are not relevant to this appeal. It
suffices to say that a jury convicted defendant of evading a peace officer (Veh. Code,
§ 2800.2), driving under the influence (Veh. Code, § 23152, subd. (a)), driving with a
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blood-alcohol content of 0.08 percent or more (Veh. Code, § 23152, subd. (b)),
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession of
controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a)), and
resisting or obstructing a peace officer (§ 148, subd. (a)(1)), as well as two speeding
enhancements (Veh. Code, § 23582, subd. (a)). In a bifurcated proceeding, the court
found the allegations of a prior prison commitment and a prior serious felony conviction
to be true. The court sentenced defendant to five years in state prison, comprised of the
midterm of two years for evading a peace officer with reckless driving, doubled to four
years pursuant to section 667, subdivision (e)(2), plus an additional consecutive year for
the prior prison commitment pursuant to section 667.5(b). The court also sentenced
defendant to 30 days in county jail for each of the misdemeanor convictions, and 180
days in county jail for a postrelease community supervision violation in a separate case,
all to be served concurrently to the five-year term.
DISCUSSION
Defendant contends the one-year prior prison term enhancement imposed pursuant
to section 667.5(b) must be stricken due to the amendment to section 667.5(b) by Senate
Bill No. 136 effective January 1, 2020 (2019-2020 Reg. Sess.) (Senate Bill 136). The
People concede the issue. We agree and remand.
Signed by the Governor on October 8, 2019, and effective January 1, 2020, Senate
Bill 136 amends section 667.5(b) to eliminate the one-year prior prison term
enhancement for most prior convictions. (Stats. 2019, ch. 590, § 1.)
An exception, not applicable here, is made for a qualifying prior conviction on a
sexually violent offense, as defined in Welfare and Institutions Code section 6600,
subdivision (b).
Because Senate Bill 136 became effective before defendant’s judgment became
final, we agree with the parties that the amended law applies to him retroactively. (See In
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re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent,
ameliorative criminal statutes apply to all cases not final when statute takes effect].)
Accordingly, defendant’s section 667.5(b) enhancement must be stricken.
Because the trial court imposed the midterm at sentencing, it is appropriate to remand this
matter for resentencing to allow the trial court to revisit its sentencing choices in light of
the changed circumstances. (See People v. Jennings (2019) 42 Cal.App.5th 664, 682
[remanding for resentencing following striking of enhancements in light of Senate Bill
136]; People v. Francis (2017) 16 Cal.App.5th 876, 887 [remand unnecessary where
court could not alter sentence to compensate for the loss of enhancements].)
DISPOSITION
We modify the judgment to strike defendant’s one-year prior prison term
enhancement. The matter is remanded to the superior court for resentencing. The
judgment is otherwise affirmed.
HULL, J.
We concur:
RAYE, P. J.
MAURO, J.
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