California Court of Appeal Dec 2, 2020 No. E073607Unpublished
Filed 12/2/20 P. v. Valenzuela CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073607
v. (Super.Ct.No. FWV19001112)
ISIAH RAY VALENZUELA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Affirmed as modified.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
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STATEMENT OF THE CASE1
On April 17, 2019, an information charged defendant and appellant Isiah Ray
Valenzuela with attempted carjacking under Penal Code2 sections 664 and 215,
subdivision (a) (count 1), and assault with a deadly weapon under section 245,
section 667.5, subdivision (b), now limits one-year enhancements for prior convictions to
cases where the prior conviction was for a sexually violent offense, as defined in
subdivision (b), of section 6600 of the Welfare and Institutions Code.
Both parties agree that defendant is entitled to the benefit of the change in the law.
(People v. Jennings (2019) 42 Cal.App.5th 664, 680-681.) In In re Estrada (1965) 63
Cal.2d 740, the California Supreme Court held that absent evidence to the contrary, the
Legislature intended amendments to statutes that reduce the punishment for a particular
crime to apply to all defendants whose judgments are not yet final on the amendments’
operative dates. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306-308
[discussing Estrada]; People v. Brown (2012) 54 Cal.4th 314, 323 [same].) In an
analogous situation in which new legislation ended the statutory prohibition on a trial
court’s ability to strike firearm enhancements under sections 12022.5 and 12022.53,
courts of appeal have held that the new statutory amendment applies retroactively to all
nonfinal judgments. (See People v. Chavez (2018) 22 Cal.App.5th 663, 708-712; People
v. Arredondo (2018) 21 Cal.App.5th 493, 506-507; People v. Woods (2018) 19
Cal.App.5th 1080, 1089-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
Moreover, courts of appeal have held that the newly founded discretionary authority to
strike five-year enhancements under section 667, subdivision (a), is also retroactive.
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(People v. Jones (2019) 32 Cal.App.5th 267, 273; People v. Garcia (2018) 28
Cal.App.5th 961, 971-972.) The reasoning in those cases applies in this case because SB
136 is an ameliorative change in the law that provides for a reduced sentence.
In this case, defendant’s judgment was not final when SB 136 went into effect on
January 1, 2020. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [finality includes the
90-day period in which an appellant could seek certiorari in the United States Supreme
Court after the California Supreme Court denies review]; People v. Nasalga (1996) 12
Cal.4th 784, 789, fn. 5.) As a result, the change in section 667.5, subdivision (b), applies
to defendant retroactively. Moreover, because the bases for defendant’s prior-prison-
term enhancements were not for a specified sexually violent offenses, the enhancements
under section 667.5, subdivision (b), should be stricken.
DISPOSITION
The judgment is modified by striking the Penal Code section 12022, subdivision
(b), and Penal Code section 667.5, subdivision (b), enhancements. The trial court is
ordered to prepare a new abstract of judgment and forward it to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J. We concur:
RAMIREZ P. J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a weapon-use enhancement under Penal Code section 12022, subdivision (b)(1) must be stricken because weapon use is an element of assault with a deadly weapon, and that prior prison term enhancements under section 667.5, subdivision (b) must be stricken pursuant to the retroactive application of Senate Bill No. 136.
Issues
Whether a section 12022, subdivision (b)(1) enhancement is permissible for a conviction of assault with a deadly weapon.
Whether the amendments to Penal Code section 667.5, subdivision (b) under Senate Bill No. 136 apply retroactively to nonfinal judgments.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“the section 12022 enhancement must be stricken because use of a dangerous or deadly weapon is an element of assault with a deadly weapon.”
“the change in section 667.5, subdivision (b), applies to defendant retroactively.”
“The judgment is modified by striking the Penal Code section 12022, subdivision (b), and Penal Code section 667.5, subdivision (b), enhancements.”