People v. Jackson CA6

Filed 9/4/20 P. v. Jackson CA6 (opinion on transfer from Supreme Court) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046139, H046413 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS161816A)

v.

THOMAS JACKSON,

Defendant and Appellant.

In 2016, defendant Thomas Jackson pleaded no contest to possession for sale of a controlled substance (Health & Saf. Code, § 11351) 1 and admitted a prior drug conviction enhancement under former section 11370.2, subdivision (c). On January 13, 2017, the trial court imposed a split sentence of six years, composed of three years for count 1 and three years for the enhancement under former section 11370.2, subdivision (c) with the execution of the last four years suspended and made a period of mandatory supervision. Jackson did not appeal from his sentence. On April 18, 2018, Jackson admitted that he violated the terms of his mandatory supervision. On May 22, 2018, Jackson filed a motion for modification of his sentence under Senate Bill No. 180 (Sen. Bill 180). Sen. Bill 180, which became effective January 1, 2018, amended section 11370.2 by limiting sentencing enhancements to prior convictions that, unlike Jackson’s, involved using a minor to commit drug-related crimes. (Stats. 2017, ch. 677, § 1.) Jackson argued that under Sen. Bill 180, the prior drug

1 Unspecified statutory references are to the Health and Safety Code.

conviction enhancement under former section 11370.2, subdivision (c) no longer applied to his case. On June 29, 2018, the trial court denied Jackson’s motion. In our prior opinion in this matter, People v. Jackson (Aug. 20, 2019, H046139, H046413 [nonpub. opn.]), we affirmed the trial court’s order denying Jackson’s motion to modify his sentence (H046139) and the order revoking mandatory supervision (H046413). On October 30, 2019, the California Supreme Court granted Jackson’s petitions for review (S258139, S258141), deferred briefing, and ultimately transferred the matters 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). We hereby vacate our prior decision, and upon reconsideration, we conclude that Sen. Bill 180 applies retroactively to Jackson. Accordingly, we reverse the trial court’s order revoking Jackson’s mandatory supervision and the order denying his motion for modification of his mandatory supervision. We remand the matter for the trial court to strike the section 11370.2 enhancement and resentence Jackson. I. FACTUAL AND PROCEDURAL BACKGROUND On December 20, 2016, an information was filed charging Jackson with possession for sale of a controlled substance (methamphetamine) (§ 11378; count 1), transportation of a controlled substance (methamphetamine) (§ 11379, subd. (a); count 2), possession for sale of a controlled substance (heroin) (§ 11351; count 3), and sale, transportation, or offer to sell a controlled substance (heroin) (§ 11352, subd. (a); count 4). It was alleged as to each count that Jackson had prior drug convictions (former § 11370.2, subds. (a), (c)). It was further alleged that Jackson had served a prior prison term pursuant to Penal Code section 667.5, subdivision (b). Jackson pleaded no contest to count 1 and admitted a prior drug conviction enhancement under former section 11370.2, subdivision (c). On January 13, 2017, the trial court imposed a split sentence of six years, composed of three years for count 1 and three years for the enhancement under former 2