People v. Contreraz

Filed 8/21/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H045787 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. 16CR01219)

v.

ALBERTO SALVADOR CONTRERAZ,

Defendant and Appellant.

In September 2017, defendant Alberto Salvador Contreraz1 was sentenced to 10 years in state prison, execution suspended, and granted three years’ probation. In May 2018, following a contested hearing, the trial court found that Contreraz violated his probation. The trial court terminated probation and ordered execution of the previously-imposed prison sentence. In our prior opinion in this matter, People v. Contreraz (Dec. 5, 2019, H045787 [nonpub. opn.]), we rejected Contreraz’s argument that he is entitled to the retroactive benefit of Senate Bill No. 620 (Reg. Sess. 2017-2018) (Sen. Bill 620) which amended Penal Code2 sections 12022.5, subdivision (c) and 12022.53, subdivision (h), effective January 1, 2018, and affirmed the judgment. This case is before us again after the California Supreme Court granted review, deferred briefing, and transferred the matter back to this court with directions to vacate our prior decision and reconsider the cause in light of People v. McKenzie (2020) 9 Cal.5th 40 (McKenzie). Neither Contreraz nor the

1 The record and the briefing contain several versions of defendant’s first and last name, e.g., “Albert” and “Contreras.” We have elected to use the version which appears most frequently and is also used on the abstract of judgment. 2 Unspecified statutory references are to the Penal Code.

Attorney General submitted supplemental briefs following transfer from the Supreme Court. (Cal. Rules of Court, rules 8.200(b) & 8.528(f).) As directed by the California Supreme Court, we hereby vacate our prior decision and, upon reconsideration, we conclude that Contreraz is entitled to the benefit of Sen. Bill 620. Accordingly, we reverse the judgment and remand for the trial court to exercise its discretion in deciding whether to strike the firearm enhancement pursuant to sections 12022.5, subdivision (c) and 12022.53, subdivision (h), as amended. Further, as discussed in our prior (now vacated) opinion, the trial court has stricken the criminal street gang sentencing enhancement, thus rendering that argument moot. I. FACTUAL AND PROCEDURAL BACKGROUND On June 2, 2016, Contreraz was charged by information with second degree robbery (§ 211; count 1), participation in a criminal street gang (§ 186.22. subd. (a); count 2), carrying a concealed firearm (§ 25400, subd. (a)(2); count 3), and resisting a peace officer (§ 148, subd. (a); count 4). The information further alleged that, in connection with the robbery, Contreraz was personally armed with a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). On September 13, 2017, as part of a negotiated disposition, Contreraz pleaded guilty to one count of felony second degree robbery (§ 211; count 1) and one count of felony assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 5).3 Contreraz also admitted the firearm and gang enhancement allegations (§§ 12022.5, subd. (a), 186.22, subd. (b)(1)) in connection with the robbery offense. In accordance with the plea agreement, the trial court dismissed counts 2, 3, and 4, and deleted the reference to section 12022.53, subdivision (b) from the firearm enhancement. The trial court then sentenced Contreraz to a total term of 10 years, consisting of the