People v. Bustamante CA2/7 ( 2021 )

Filed 3/22/21 P. v. Bustamante CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306952
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA415936-01)
v.
LUIS BUSTAMANTE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Craig Richman, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________
Luis Bustamante appeals from a postjudgment order
summarily denying his motion to modify his sentence by striking
a one-year prior prison term enhancement imposed pursuant to
Penal Code section 667.5, subdivision (b),1 based on Senate Bill
No. 136 (Stats. 2019, ch. 590, § 1) (Senate Bill 136), effective
January 1, 2020. No arguable issues have been identified
following review of the record by Bustamante’s appointed
appellate counsel or by Bustamante in his supplemental letter
brief to this court. We also have identified no arguable issues
after our own independent review of the record. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury in 2014 convicted Bustamante of aggravated assault
(§ 245, subd. (a)(4)), with personal infliction of great bodily injury
(12022.7, subd. (a)); two counts of making a criminal threat
(§ 422); grand theft (§ 487, subd. (c)); and battery causing serious
injury (§ 243, subd. (d)). The aggravated assault and battery
offenses were found to be hate crimes. Bustamante was
sentenced to an aggregate state prison term of 11 years
eight months, which included enhancements for the hate crimes,
inflicting great bodily injury and one year for a prior prison term
Bustamante had served for second degree burglary within the
meaning of former section 667, subdivision (b).
On June 8, 2020 Bustamante, representing himself, filed a
motion for modification of sentence, contending Senate Bill 136,
which limited the applicability of Penal Code section 667.5,
subdivision (b)’s one-year sentence enhancement for prior prison
terms to defendants who had previously served a prison term for
1 Statutory references are to this code unless otherwise
stated.
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sexually violent offenses as defined in Welfare and Institutions
Code section 6600, subdivision (b), required the court to dismiss
the one-year prior prison term enhancement imposed at his
sentencing. On June 26, 2020 the superior court summarily
denied the motion, ruling Senate Bill 136 does not apply
retroactively. Bustamante filed a timely notice of appeal.
DISCUSSION
At the time Bustamante was sentenced in 2014, Penal Code
section 667.5, subdivision (b), provided in part, when a defendant
was convicted of any felony, other than a violent felony, for which
a prison sentence was imposed, “in addition and consecutive to
any other sentence therefor, the court shall impose a one-year
term for each prior separate prison term or county jail term
imposed under subdivision (h) of Section 1170.” (Stats. 2012,
ch. 24, § 19.) Because he had been convicted of burglary in 2010
and served a prison term for that offense, the one-year
enhancement under section 667.5, subdivision (b), was properly
imposed.
Senate Bill 136, limiting application of the one-year
enhancement specified in section 667.5, subdivision (b), to certain
sexually violent offenses, applies under In re Estrada (1965)
63 Cal.2d 740, 742, to judgments that were not yet final on its
effective date. (See, e.g., People v. Petri (2020) 45 Cal.App.5th 82,
94 [“amendment to section 667.5, subdivision (b),” effective
January 1, 2020, “applies retroactively to all defendants whose
judgments are not yet final as of that date”]; People v. Winn
(2020) 44 Cal.App.5th 859, 872-873.) It has no greater
retroactive effect. (See In re Estrada, at p. 744 [“[i]f the
amendatory statute lessening punishment becomes effective prior
to the date the judgment of conviction becomes final then, in our
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opinion, it, and not the old statute in effect when the prohibited
act was committed, applies”].) Because the judgment of
conviction in Bustamante’s case became final for purposes of
Estrada when he failed to appeal it years ago, he is not entitled to
the ameliorative benefit of Senate Bill 136.
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Bustamante on
appeal. After reviewing the record, appointed counsel filed a
brief raising no issues. Appointed counsel advised Bustamante
on October 27, 2020 that he had 30 days to submit a brief or
letter raising any grounds of appeal, contentions or arguments he
wanted the court to consider. We provided a similar notice to
Bustamante.
On November 13, 2020 we received a two-page handwritten
supplemental brief in which Bustamante argued he was entitled
to resentencing under Senate Bill 136 even though his sentence
was final when the legislation became effective, citing In re Ward
(1966) 64 Cal.2d 672, in which the Supreme Court held a writ of
habeas corpus could issue to correct an unlawful sentence (in that
case, imposition of punishment for both kidnapping for the
purpose of robbery and robbery in violation of section 654).
However, as discussed, Bustamante’s sentence was not unlawful
at the time it was imposed, and Senate Bill 136 does not apply
retroactively to cases that were final before its effective date.
Because no cognizable legal issues have been raised by
Bustamante’s appellate counsel or by Bustamante or identified in
our own independent review of the record, the order denying his
motion for modification is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
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v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order denying Bustamante’s motion is
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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