People v. Ruggerio

Filed 6/25/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B305655 (Super. Ct. No. 18F-04895) Plaintiff and Respondent, (San Luis Obispo County)

v.

ANTHONY STEVEN RUGGERIO, JR.,

Defendant and Appellant.

Anthony Steven Ruggerio, Jr., appeals from the trial court’s order denying his motion to strike the one-year prior prison term enhancement (Pen. Code,1 § 667.5, subd. (b)) from his state prison sentence. He contends the court should have granted his motion because Senate Bill No. 136 (S.B. 136) applies retroactively to cases, like his, that are not yet final. We conclude that a judgment imposing but suspending execution of a sentence is not final for purposes of S.B. 136 retroactivity where, as here, a defendant “may still timely obtain direct review of [the] order revoking probation and causing the state prison sentence to take

1 Statutory references are to the Penal Code.

effect.” (People v. Esquivel (June 17, 2021, S262551) __ Cal.5th __, __ (Esquivel) [p. 1].) We accordingly vacate the order denying Ruggerio’s motion and remand. FACTUAL AND PROCEDURAL HISTORY In 2017, prosecutors charged Ruggerio with domestic violence (§ 273.5, subd. (a)), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)), and battery (§ 242). They also alleged that Ruggerio had previously served a term in state prison. Ruggerio pled guilty to the domestic violence charge and admitted the prison prior in exchange for a five-year state prison sentence (four years on the conviction plus one year on the prison prior) and dismissal of the remaining two charges. The trial court accepted the plea, imposed the agreed-upon sentence, suspended its execution, and ordered Ruggerio to serve five years of formal probation. Three years later, Ruggerio admitted that he violated the terms of probation. The trial court revoked probation and ordered the execution of the five-year prison sentence. The court denied Ruggerio’s motion to strike the one year imposed for his prison prior, concluding that his case was already final when S.B. 136 took effect. DISCUSSION When the trial court sentenced Ruggerio in 2017, section 667.5, subdivision (b), required it to add one year to his sentence because of his prior prison term. (People v. Jennings (2019) 42 Cal.App.5th 664, 681 [enhancement mandatory unless stricken].) The Legislature subsequently enacted S.B. 136 (2019- 2020 Reg. Sess.), which, effective January 1, 2020, limits the applicability of prior prison term sentence enhancements to terms served for sexually violent offenses. (See Stats. 2019, ch.