People v. Perozzi CA3

Filed 9/30/20 P. v. Perozzi 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
----
THE PEOPLE, C090821
Plaintiff and Respondent, (Super. Ct. Nos. 17CR003500,
18CR000731)
v.
ROBERT LLOYD PEROZZI,
Defendant and Appellant.
Defendant Robert Lloyd Perozzi pled guilty to first degree residential burglary and
admitted two prior prison terms. On appeal, he contends the prior prison term
enhancements must be vacated based on the retroactive application of Senate Bill No.
136 (Senate Bill 136). We modify the judgment to strike defendant’s prior prison term
enhancements. We will otherwise affirm.
I. BACKGROUND
Due to the limited nature of the claim on appeal, we need not recite the facts
underlying the offenses. In two cases, defendant was charged with first degree residential
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burglary (Pen. Code, § 459),1 two counts of unlawful driving or taking of a vehicle (Veh.
Code, § 10851, subd. (a)), and two counts of receiving a stolen motor vehicle (§ 496d,
subd. (a)). It was further alleged that he committed three of the offenses while on bail
(§ 12022.1) and served four prison terms under section 667.5, subdivision (b). Defendant
subsequently pled guilty to first degree residential burglary and admitted two of the prior
prison terms. The remaining counts and enhancements were dismissed on motion of the
district attorney.
The court sentenced defendant to the stipulated sentence of the upper term of six
years for the burglary, plus two years consecutive for the two prison prior enhancements
pursuant to section 667.5, subdivision (b).
II. DISCUSSION
Defendant claims his prior prison term enhancements must be vacated based on
the retroactive application of Senate Bill 136. The People agree.
On October 8, 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.),
which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1).
Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to
those who have served a prior prison sentence for a sexually violent offense, as defined.
The amended provision states in pertinent part: “Except where subdivision (a) applies,
where the new offense is any felony for which a prison sentence or a sentence of
imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not
suspended, in addition and consecutive to any other sentence therefor, the court shall
impose a one-year term for each prior separate prison term for a sexually violent offense
as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code,
provided that no additional term shall be imposed under this subdivision for any prison
1 Further undesignated statutory references are to the Penal Code.
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term served prior to a period of five years in which the defendant remained free of both
the commission of an offense which results in a felony conviction, and prison custody or
the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or
any felony sentence that is not suspended.” (§ 667.5, subd. (b).)
We agree with the parties that the amendment to section 667.5 should be applied
retroactively in this case. Whether a particular statute is intended to apply retroactively is
a matter of statutory interpretation. (See People v. Superior Court (Lara) 4 Cal. 5th 299,
307 [noting “the role of a court is to determine the intent of the Legislature”].) Generally
speaking, new criminal legislation is presumed to apply prospectively unless the statute
expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced
punishment for criminal conduct, an inference arises under In re Estrada (1965)
63 Cal. 2d 740 (Estrada) “ ‘that, in the absence of contrary indications, 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.’ ” (Lara, supra, at p. 308.) “A new law mitigates or lessens punishment
when it either mandates reduction of a sentence or grants a trial court the discretion to do
so.” (People v. Hurlic (2018) 25 Cal. App. 5th 50, 56.)
Here, Senate Bill 136 narrowed who was eligible for a section 667.5, subdivision
(b) prior prison term enhancement, thus rendering ineligible many individuals, including
defendant who served prior prison sentences following convictions for false
impersonation (§ 529) and inflicting corporal injury upon a spouse (§ 273.5). There is
nothing in the bill or its associated legislative history that indicates an intent that the court
not apply this amendment to all individuals whose sentences are not yet final. Under
these circumstances, we conclude Estrada’s inference of retroactive application applies.
(See, e.g., People v. Nasalga (1996) 12 Cal. 4th 784, 797-798 [applying Estrada inference
of retroactivity to legislative changes to section 12022.6, subds. (a) and (b)
enhancements].) Thus, we will accept the People’s concession that the two prior prison
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term enhancements should be stricken and remand is unnecessary because the maximum
sentence available pursuant to the plea agreement was imposed.
III. DISPOSITION
The judgment is modified to strike defendant’s section 667.5, subdivision (b) prior
prison term enhancements. The trial court is directed to prepare an amended abstract of
judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
/S/
RENNER, J.
We concur:
/S/
HOCH, Acting P. J.
/S/
KRAUSE, J.
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