Opinion
C089074 C089229
01-24-2022
THE PEOPLE, Plaintiff and Appellant, v. PARKER THOMAS PASLEY, Defendant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. Nos. CRF131796, CRF155084
MURRAY, J.
Defendant Parker Thomas Pasley sustained numerous convictions in several successive cases involving drug trafficking offenses. Among the more recent cases, in Yolo County Superior Court case No. CRF 18-3633, a jury found defendant guilty of possession for sale of methamphetamine and possession of heroin, and the trial court found two prior prison term enhancement allegations to be true. Subsequently, in Yolo County Superior Court case No. CRF 18-5025, defendant pleaded no contest to 1 conspiracy to commit a felony, transporting a controlled substance, and possession for sale of a controlled substance. On February 15, 2019, the trial court sentenced defendant on these cases, and resentenced him on a number of prior cases. The court imposed an aggregate term of nine years in local prison, with 325 days of mandatory supervision.
This matter involves two appeals, one by the Attorney General and the other by defendant. On our own motion, we consolidated these appeals for oral argument and disposition.
In case No. C089074, the Attorney General appeals from the trial court's order granting defendant's motion pursuant to Senate Bill No. 180 (2017-2018 Reg. Sess.) (S.B. 180) to strike four prior drug trafficking conviction enhancements in cases where split sentences had been ordered. The Attorney General contends those convictions were final before S.B. 180 was enacted. With the enactment of Senate Bill No. 483 (2021-2022 Reg. Sess.) (S.B. 483), the issue raised by the Attorney General's appeal is moot. Accordingly, we dismiss the appeal for that reason.
In the second appeal, case No. C089229, defendant asserts (1) the trial court erred in denying his motion based on Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) to dismiss case No. CRF 18-5025 as an impermissible prosecution for the same act or course of conduct as prosecuted in case No. CRF 18-3633, (2) the trial court violated his due process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), by imposing fines, fees, and penalty assessments without determining that he had the ability to pay, (3) his prior prison term enhancements must be stricken following the enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.) (S.B. 136), and (4) the narcotics registration requirement pursuant to former Health and Safety Code section 11590 must be stricken because that provision has been repealed. We agree 2 the narcotics registration requirement must be stricken. We will remand for the trial court to confirm that defendant's relevant underlying convictions no longer qualify as prior prison term enhancements under S.B. 136 and for resentencing. Otherwise, we affirm.
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
PROCEDURAL BACKGROUND
The Prior Drug Trafficking Convictions
Hereafter we dispense with the prefix "CRF" in the trial court case numbers.
In 2013, defendant pleaded no contest to transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and admitted to two prior drug trafficking enhancement allegations (Health & Saf. Code, § 11370.2, subd. (c)). The remainder of the charges were dismissed. The trial court sentenced defendant to the upper term of four years on count one, plus three years for each of the two prior drug conviction enhancements, for a total term of 10 years to be served in county jail. The trial court ordered a split sentence, with defendant to serve 1, 825 days in county jail and 1, 825 days under mandatory supervision.
The trial court also imposed a consecutive term of eight months (one-third the midterm) for a violation of Health and Safety Code section 11379, subdivision (a) in case No. 13-413, for which defendant was credited with time served.
Case No. 15-5084
In 2015, defendant pleaded no contest to possession for sale of a controlled substance and admitted to two prior drug conviction enhancement allegations. The trial court sentenced defendant to an aggregate term of six years eight months consisting of eight months (one-third the midterm) on the conviction offense plus three years for each of the two prior drug conviction enhancements. This sentence was to be subordinate to 3 the sentence imposed in case No. 13-1796, which the court reimposed. Again, the trial court ordered a split sentence, this time with defendant to serve 1, 216 days in county jail and 1, 217 days on mandatory supervision. Defendant's total aggregate term for all cases was 17 years four months.
The trial court also reimposed a previously imposed term of eight months for violation of Health and Safety Code section 11378 in an unrelated case.
We discuss the underlying facts in part II.A. of the Discussion, post.
Case No. 18-3633
On September 7, 2018, a jury found defendant guilty of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 1), and possession of heroin (Health & Saf. Code, § 11350; count 2). Defendant waived jury trial on two prior prison term enhancement allegations (§ 667.5, subd. (b)), and the court found them true.
Case No. 18-5025
An information filed October 23, 2018, charged defendant with conspiracy to commit a felony (§ 182, subd. (a)(1); count 1), transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 2), and possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 3).
Defendant filed a motion to dismiss asserting that, based on section 654 and Kellett, he was impermissibly subjected to multiple prosecutions. The trial court denied the motion.
In December 2018, defendant pleaded no contest to all three counts. Over the prosecutor's objection, the court indicated it would sentence defendant to two years in county prison to run concurrent with all other matters. 4
Motion for S.B. 180 Resentencing
Before sentencing, defendant filed a motion to strike his prior drug enhancements in case Nos. 13-1796 and 15-5084 because, under S.B. 180 (Stats. 2017, ch. 677, § 1), his prior convictions were no longer qualifying convictions under Health and Safety Code section 11370.2, subdivision (c), as amended.
The prosecution opposed defendant's motion, asserting judgment in those cases was final before January 1, 2018, the effective date of the statutory amendment. Relying on a since-depublished case, the prosecution asserted that an unappealed split sentence such as defendant's is final 60 days after it is imposed. According to the prosecution, defendant's most recent split sentence was imposed on October 8, 2015, and he did not file an appeal in any of the three cases on which he had been sentenced. Thus, according to the prosecution, defendant's judgment became final 60 days after the split sentences were imposed, which was well before S.B. 180 became effective on January 1, 2018.
The court concluded that the judgments in case Nos. 15-5084 and 13-1796 were not final, and that S.B. 180 applied retroactively. Accordingly, the court granted defendant's motion, striking his four Health and Safety Code section 11370.2, subdivision (c) prior drug conviction enhancements.
Sentencing
The court elected to adopt the probation department's proposed sentencing recommendation, which would strike the four Health and Safety Code section 11370.2, subdivision (c) enhancements and impose a term of nine years with options for mandatory supervision. The trial court sentenced defendant on February 15, 2019, to an aggregate term of nine years, calculated as follows: • In case No. 13-1796, four years on count 1, transportation of a controlled substance. (Health & Saf. Code, § 11379, subd. (a).) 5 • In a matter not related to this appeal, case No. 14-0468, eight months consecutive (one-third the midterm) on count 2, possession of a controlled substance for sale. (Health & Saf. Code, § 11378.) • In case No. 15-5084, eight months consecutive (one-third the midterm) on count 1, possession of a controlled substance for sale. (Health & Saf. Code, § 11378.) • In case No. 18-3633, eight months consecutive (one-third the midterm) on count 1, possession of a controlled substance for sale (Health & Saf. Code, § 11378); 180 days concurrent on count 2, possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)); and one year for each of the two prior prison term enhancements (§ 667.5, subd. (b)). The court ordered that 325 days of this sentence be served on mandatory supervision. • In case No. 18-5025, one year consecutive (one-third the midterm) on count 1, conspiracy to commit a crime (§ 182, subd. (a)(1)); four years on count 2, transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and three years on count 3, possession of a controlled substance for sale (Health & Saf. Code, § 11378), with the sentences on counts 2 and 3 stayed pursuant to section 654.
While the court had previously indicated an intention to sentence defendant to concurrent terms in this case, defendant agreed to the consecutive sentence rather than withdrawing his plea.
DISCUSSION
THE PEOPLE'S APPEAL
I. S.B. 180 Retroactivity
At the time of defendant's sentencing in 2013 and 2015, Health and Safety Code section 11370.2, former subdivision (c) authorized a three-year enhancement for 6 defendants convicted of possession or possession for sale of certain controlled substances "for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." (Health & Saf. Code, § 11370.2, former subd. (c).)
In October 2017, the Governor signed S.B. 180, which amended Health and Safety Code section 11370.2 by eliminating most of the qualifying drug offenses that would support the three-year enhancement. (Stats. 2017, ch. 677, § 1.) Defendant does not have a qualifying prior conviction.
As amended, only a prior conviction where the defendant used a minor in its commission (Health & Saf. Code, § 11380) would support the enhancement. (Stats. 2017, ch. 677, § 1.)
The Attorney General asserts the trial court erred in granting defendant's motion to strike his four Health and Safety Code section 11370.2, subdivision (c) prior drug conviction enhancements pursuant to S.B. 180. The Attorney General asserts that S.B. 180 cannot apply to defendant's benefit because the unappealed split sentences imposed in 2013 and 2015 in case Nos. 13-1796 and 15-5084 were final before it took effect on January 1, 2018.
Recently, the Governor signed S.B. 483 (2021-2022 Reg. Sess.), effective January 1, 2022. S.B. 483 added section 1171 to the Penal Code. Subdivision (a) of that section provides: "Any sentence enhancement that was imposed prior to January 1, 2018, pursuant to Section 11370.2 of the Health and Safety Code, except for any enhancement imposed for a prior conviction of violating or conspiring to violate Section 11380 of the Health and Safety Code is legally invalid." Trial courts must recall and resentence incarcerated defendants who were sentenced to this enhancement. (§ 1171, subd. (c)(1) & (2).) 7
Because the enhancements are now legally invalid, we cannot grant the relief the Attorney General requests. Consequently, the issue to be addressed in his appeal is moot. Accordingly, we shall dismiss the Attorney General's appeal. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 ["A case is moot when the decision of the reviewing court 'can have no practical impact or provide the parties effectual relief' ";" 'When no effective relief can be granted, an appeal is moot and will be dismissed' "].)
We note that during the pendency of this appeal, the law related to this issue had evolved in favor of defendant. (See People v. Esquivel (2021) 11 Cal.5th 671 [holding that a sentence of probation was not final where trial court imposed sentence and suspended execution thereof]; People v. McKenzie (2020) 9 Cal.5th 40 [holding that a sentence of probation was not final where trial court suspended imposition of sentence].)
Neither party has addressed mootness. If either party desires to do so, they are invited to file a request for rehearing and leave to file supplemental briefing. (Gov. Code, § 68081.)
DEFENDANT'S APPEAL
II. Section 654 and Kellett
A. Additional Background
Some facts are taken from defendant's Kellett motion filed in the trial court. In its opposition to defendant's motion in the trial court, the prosecution "accept[ed] the Statement of Facts as the defense has articulated them in their moving papers" with additions not relevant here. Since we have not been provided with the record in case No. 18-3633, we will consider the facts as outlined by the defense and agreed upon by the prosecution in the trial court.
On June 16, 2018, deputies went to defendant's trailer to arrest him on outstanding warrants. After knocking and announcing their presence, deputies saw defendant reach into his pocket and remove a plastic baggie containing a white crystalline substance. He threw the baggie on the floor and reached into his pocket again. A deputy entered and 8 directed defendant to keep his hands out of his pockets. After securing defendant, deputies located a plastic bindle containing a brown substance in defendant's coin pocket that weighed 1.64 grams and tested presumptive positive for heroin. In another pocket, deputies found $183 in currency. In the trailer, deputies found a baggie containing 22.08 grams of presumptive positive methamphetamine. They also found a digital scale, a box of plastic baggies consistent with the baggie containing methamphetamine, and a box of nitrile gloves.
At defendant's trial, which began on September 4, 2018, Yolo County Narcotics Enforcement Team (YONET) agent Deputy Matthew Milliron testified about two phone conversations between defendant and Kristi Herman that took place while defendant was in the jail. As we shall discuss, these conversations were also used as evidence to support the charges in case No. 18-5025 at the preliminary hearing on that matter.
In a conversation on July 5, 2018, defendant and Herman discussed various topics including another agent's testimony at defendant's preliminary hearing, prices of drugs, and the presence of narcotics in defendant's trailer that law enforcement did not find when conducting the search.
In an excerpt from a conversation on July 22, 2018, defendant "was discussing with Ms. Herman talk that he purportedly sold a cutting agent to a particular person instead of what was supposed to be a controlled substance." Defendant asked Herman to text that person and tell him "that [defendant's] and [] Herman's feelings were hurt because of things this person was saying."
In a second excerpt from the July 22, 2018, conversation, defendant discussed Herman obtaining $240 from a third party. When defendant indicated "it would be $300," Herman responded that "she did not give the person 'a full one.' " 9
2. Case No. 18-5025
a. Procedural History
In this case, a criminal complaint was filed on August 30, 2018, and a preliminary hearing was held on October 11, 2018. Thereafter, an information was filed on October 23, 2018.
b. Preliminary Hearing Testimony Concerning Jail Phone Conversations
In July 2018, YONET investigated defendant and Herman for sales of methamphetamine. During this time, defendant remained in custody. While defendant was in jail, he and Herman had numerous phone conversations, which were monitored. These conversations, in addition to the two we summarized ante, were used at the preliminary hearing as evidence supporting the charges. Defendant and Herman discussed the distribution and sales of narcotics, including prices, quantities, and customers. It appeared that defendant was instructing Herman, and Herman would subsequently conduct the transactions in the community. Deputy Milliron testified at the preliminary hearing about the conversations.
On July 5, 2018, defendant called Herman. This was the same July 5, conversation used as evidence of intent to sell in case No. 18-3633. Milliron testified that the two discussed the price of a gram of methamphetamine. Defendant also indicated that, when he was arrested at the trailer, law enforcement "missed some prepackaged methamphetamine that was hidden behind a TV . . . ." Defendant also "said there was . . . one and a half on its way or coming." Milliron opined this was a reference to drugs scheduled to be delivered.
On July 7, 2018, defendant again called Herman. Herman indicated that she was leaving town for a few days and told defendant "she was going to make her rounds before leaving town." Milliron opined that this was a reference to Herman's intention to deliver narcotics before leaving town. 10
On July 9, 2018, defendant called Herman and they discussed Herman "fronting narcotics for an individual." In another phone conversation that afternoon, Herman told defendant she had been pulled over by Sergeant Hallenbeck and "she had what [Milliron] believed to be narcotics in the vehicle, and that he had not searched the vehicle . . . ." Milliron testified that there was discussion of transporting narcotics during this conversation. He testified: "They talked about had the vehicle been searched, that narcotics would have been located because she was set up to boom, boom, boom." Milliron opined that the reference to Herman being "set up to boom, boom, boom," meant that she "had prepackaged narcotics to be delivered to specific locations . . . ." Milliron opined that defendant and Herman used coded language by which Herman was indicating she did not keep large quantities of narcotics with her, "only enough to make the deliveries."
In a phone conversation on July 11, 2018, defendant talked to Herman about the fact that she did not need to work so hard while she was pregnant, and that "he had set her up with a couple people so she didn't have to work so hard." Milliron did not know Herman to have any employment; the "only talk, other than general stuff, was about the sales of narcotics."
In a conversation on July 16, 2018, defendant and Herman again used code words. Defendant told Herman that "he can't be a player. That he could be the quarterback, but that he could not be a player and that she needed to do that." Milliron further testified that "during the conversation he had stated that he could direct traffic and that he just wanted . . . some of the run from that on his books." Milliron "took that as in [defendant] was somehow probably communicating with folks still in regards to helping . . . Herman either gain narcotics or gain narcotic customers."
On July 22, 2018, defendant again called Herman. Milliron testified about the same two excerpts introduced in defendant's trial in case No. 18-3633. In the first part of the call, they discussed "an incident that . . . happened prior to [defendant's] arrest where 11 somebody believed that narcotics had been either cut or were not narcotics. [¶] There was-[defendant] talked about some personal property that was at an individual's house trying to get . . . Herman to get that stuff back and seemed to be some type of conflict from a prior engagement." In this first part of the conversation, defendant was talking about "dealing to that individual" and whether or not Herman should deal to that individual. Defendant told Herman to stay away from that person, and asked her to send him a text message reminding that person they had helped him in the past by fulfilling his need for narcotics at a good price.
"The second part was . . . Herman talking to [defendant] about a female that was wanting a full, what [Milliron] believe[d] to be, an ounce of methamphetamine. . . . Herman told [defendant] that she had sold the female the amount of drugs for $240. [Defendant] got upset and said why, it's worth 300."
On July 23, 2018, Deputy Mark Saunders located Herman, who had outstanding misdemeanor warrants, in a vehicle in a parking lot. At the preliminary hearing, he described encountering Herman, arresting her, and discovering in her purse a plastic bag containing methamphetamine and a digital scale. The contents of the bag were tested and confirmed to be methamphetamine weighing 8.461 grams. Herman was transported to the Yolo County jail, where she was cited and released.
In a phone conversation on July 24, 2018, defendant and Herman talked about Herman's arrest. Herman stated the methamphetamine Saunders located "was intended to be delivered to a female just outside of Woodland but that she was not home."
c. The Conspiracy Charge
The complaint alleged certain overt acts, including: "Herman obtained drugs for sale"; defendant, "while incarcerated communicated through jail phone calls to . . . Herman, prices to charge for methamphetamine"; defendant, "while incarcerated communicated through jail phone calls to . . . Herman, individuals with whom she should buy and sell methamphetamine with"; "Herman would buy and sell to the individuals 12 identified by" defendant; "Herman continuously updated [defendant] through jail phone calls with her progress of buying and selling methamphetamine"; defendant and Herman "intended to receive profit and/or compensation from the sale of methamphetamine"; "[o]n at least one occasion, . . . Herman was arrested while delivering methamphetamine for sale."
After the preliminary hearing, an information was filed that contained more specific allegations concerning the overt acts.
B. Defendant's Kellett Motion
After the prosecution filed the information in case No. 18-5025, defendant moved to dismiss the prosecution on the ground that it was impermissible under section 654 and the principles discussed in Kellett, supra, 63 Cal.2d 822. Defendant asserted that the same course of conduct played a significant role in both case No. 18-3633 and case No. 18-5025, the prosecution was aware of both, and, as a result, section 654 barred multiple prosecutions.
At oral argument in the trial court, defendant asserted that the charges in the two cases substantially overlapped. Defendant further asserted both cases involved the same drug, methamphetamine, and that "[i]n both cases, there is a search of [defendant's] trailer. Both cases involved testimony from . . . Milliron. He was the agent that testified in both cases. Both cases involved playing jail calls. The same jail calls are played in both cases, specifically the July 5th and the July 22nd jail calls. And on the July 5th jail call, which was played in 18-5025, was testified to at [defendant's] preliminary hearing, there is discussion about [defendant's] previous case. The same case from June 16th. [¶] And then we have that Agent Milliron interprets these jail calls in both of these cases. He provides testimony in each case. And the jail calls are used in both cases to show [defendant's] intent. And clearly, the Government's position is that his intent in both cases is to sell methamphetamine or conspire to sell methamphetamine to obtain 13 money. [¶] So any argument by the Government that they weren't aware of this conduct is not well[]founded. First, there was a search warrant in 18-5025 for GPS. That was obtained on July 17th. Then there was a search warrant done on [defendant's] trailer on July 31st. I think the Government probably reviewed these search warrants, and clearly, they were aware of the conduct that was going on."
The prosecutor responded that "the problem is that we were already to the point where we were going to trial on the first case, and we filed a second case with a codefendant. It was not yet to prelim." The prosecutor further asserted: "We could not have filed that second case at the time we filed the first case. We could not have filed that case before the preliminary hearing because the facts simply had not occurred. [¶] So everything-and the People did use some of the phone calls to bolster intent at the first trial, but unlike the cases that Defense had cited, those facts were not necessary. That possession for sale could stand on its own. Yes, the People developed information when . . . [¶] [t]he defendant decided to talk on the phone about the fact that he was selling methamphetamine; however, they were not required to prove that case. [¶] So this is simply a case where there were two different crimes. There is possession for sale, which he did alone, and then there was the conspiracy to sale, which he did with" Herman after he was in jail.
The trial court denied defendant's motion. The court concluded that, while there was some factual overlap, "there is also new evidence [in case No. 18-5025] regarding the conspiracy. . . with . . . Herman to continue possession and distribution of methamphetamine. The events occurred some period of time after the first. [¶] Though some of the evidence regarding the jail calls were used in the trial in Case 18-3633, there is also sufficient evidence that is independent of what was established in the June 16th date to warrant the Court's view of that there is enough evidence that occurred after the fact such that these cases need not be dismissed on the basis of the Kellett ruling." 14
C. Defendant's Contentions
Defendant asserts that his motion to dismiss case No. 18-5025 should have been granted because the prosecution unnecessarily delayed filing the complaint in that case and the offenses alleged were the result of his being incarcerated for the offenses alleged in case No. 18-3633. Defendant asserts that the prosecution willfully delayed in filing the second case, two court days prior to trial in the earlier case, even though the charges in the second case resulted primarily from defendant's arrest for the offenses alleged in the earlier case and resulting incarceration. Defendant asserts that "had [he] not been arrested and incarcerated for the offenses alleged in case number 18-3633, there would have been no jail calls upon which the People could base their allegations of conspiracy, as well as aiding and abetting the transportation and sales of methamphetamine which resulted from the arrest of . . . Herman on July 23, 2018." Defendant asserts that the acts were too interrelated to be prosecuted successively. Defendant asserts that where, as here, evidence of the first incident is necessary to the successful prosecution of the later incidents, the subsequent offenses may not be separately prosecuted. Specifically, he asserts that the evidence necessary to prosecute the second case was totally dependent on the fact that he was incarcerated because of the offenses of the earlier case.
Defendant emphasizes that the prosecution knew or should have known about the offenses eventually to be charged in case No. 18-5025 as early as July 24, 2018, more than one month prior to trial in the earlier case, but did not file the complaint in the second case until two court days prior to the commencement of trial in the earlier action. Defendant asserts that this lack of due diligence led to the violation of section 654 under Kellett.
D. Section 654 and the Prohibition Against Multiple Prosecutions
Section 654, subdivision (a) now provides: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one 15 provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (Italics added.)
The first sentence was amended in Assembly Bill No. 518 (2021-2022 Reg. Sess.), effective January 1, 2022. No changes were made to the second sentence, which is the relevant part of section 654 in this appeal.
As this court has previously noted," '[s]ection 654's preclusion of multiple prosecution is separate and distinct from its preclusion of multiple punishment. The rule against multiple prosecutions is a procedural safeguard against harassment and is not necessarily related to the punishment to be imposed; double prosecution may be precluded even when double punishment is permissible.'" (People v. Valli (2010) 187 Cal.App.4th 786, 794-795 (Valli).)
As explained by our high court in Kellett, "If needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively. When there is a course of conduct involving several physical acts, the actor's intent or objective and the number of victims involved, which are crucial in determining the permissible punishment, may be immaterial when successive prosecutions are attempted. [¶] When . . . the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Kellett, supra, 63 Cal.2d at p. 827, italics added, fn. omitted.) Thus, a multiple prosecution inquiry under section 654 and Kellett focuses on whether (1) there was more than one offense in which the same act or course of conduct plays a significant part, and (2) the prosecution was or should have been 16 aware of the multiple offenses involving the same act or course of conduct. (Kellett, at p. 827; People v. Hendrix (2018) 20 Cal.App.5th 457, 464 (Hendrix).)
In Kellett, the defendant was arrested for the single act of standing on a public sidewalk with a handgun in his hand. Originally charged with a misdemeanor charge of exhibiting a firearm in a threatening manner, he pled guilty. Later, he was charged with possession of a concealable weapon, a felony, based on the same arrest. The Kellett court held that section 654 prohibited the felony prosecution, even though it could be inferred the defendant possessed the handgun some time before he brandished it. (Kellett, supra, 63 Cal.2d at pp. 824-825.)
"Appellate courts have adopted two different tests under Kellett to determine whether multiple offenses occurred during the same course of conduct. [Citation.] Under one line of cases, multiple prosecutions are not barred if the offenses were committed at separate times and locations." (People v. Ochoa (2016) 248 Cal.App.4th 15, 28-29 (Ochoa).) This is often referred to as the "time and place" test. (Id. at p. 29.)
"[T]he 'evidentiary test'-looks to the evidence necessary to prove the offenses." (Ochoa, supra, 248 Cal.App.4th at p. 29, italics added, citing People v. Flint (1975) 51 Cal.App.3d 333.)" '[I]f the evidence needed to prove one offense necessarily supplies proof of the other, . . . the two offenses must be prosecuted together, in the interests of preventing needless harassment and waste of public funds.'" (Ochoa, at p. 29, quoting People v. Hurtado (1977) 67 Cal.App.3d 633, 636, italics added.) However," 'the evidentiary test of Flint and Hurtado requires more than a trivial overlap of the evidence.'" (Ochoa, at p. 29, quoting Valli, supra, 187 Cal.App.4th at p. 799.) "Simply using facts from the first prosecution in the subsequent prosecution does not trigger application of Kellett." (Valli, at p. 799.)
"Whether the bar against multiple prosecution applies must be determined on a case-by-case basis. [Citation.] We review factual determinations under the deferential substantial evidence test, viewing the evidence in the light most favorable to the prosecution. [Citation.] We review de novo the legal question of whether Section 654 17 applies." (Ochoa, supra, 248 Cal.App.4th at p. 29, fn. omitted, citing People v. Britt (2004) 32 Cal.4th 944, 955 & Valli, supra, 187 Cal.App.4th at p. 794.)
E. Analysis
1. Prosecution's Awareness of Offenses Underlying Case No. 18-5025
The Attorney General does not dispute that the prosecution was aware of defendant's phone conversations with Herman as early as July 24, 2018. The Attorney General asserts, "[e]ven assuming that the prosecution became aware of the conspiracy case immediately after Herman was arrested, this is merely a threshold question determining whether Kellett applies in the first instance, not the determining factor of whether section 654 bars prosecution." We agree. The question we must resolve in this case relates to the second prong of the Kellett test: whether "the same act or course of conduct play[ed] a significant part" in the offenses charged in both prosecutions. (Ochoa, supra, 248 Cal.App.4th at p. 30.)
2. The Same Course of Conduct
a. The Time and Place Test
"Under the time and place test, multiple prosecutions are not barred if the offenses were committed at separate times and locations." (Ochoa, supra, 248 Cal.App.4th at p. 32.)
The Attorney General relies on People v. Cuevas (1996) 51 Cal.App.4th 620 (Cuevas). In Cuevas, on February 18, 1992, an undercover officer participating in a multiagency drug trafficking investigation bought 223 grams of cocaine from the defendant. On February 27, 1992, the same officer bought 219 grams of cocaine from the defendant. (Id. at p. 622.) On May 20, 1992, in executing a search warrant at her home, law enforcement found cocaine in the defendant's purse and in a safe. (Ibid.) In May 1992, the prosecution charged the defendant with possession of cocaine for sale based on the cocaine discovered in the search of her residence on May 20, 1992. (Ibid.) It was not 18 until March 1994 that the prosecution charged her based on the two February 1992 cocaine sales to the undercover officer. (Ibid.)
Regarding the defendant's contention that the second prosecution should be barred under section 654 and Kellett, the Cuevas court stated: "[T]he authorities knew about all her narcotic offenses and could have charged them all in 'a single proceeding.'" (Cuevas, supra, 51 Cal.App.4th at p. 623.) However, the court explained that, even though the prosecution knew about all of the defendant's drug offenses, "Kellett does not require, nor do the cases construing it, that offenses committed at different times and at different places must be prosecuted in a single proceeding." (Id. at p. 624.) Therefore, the Cuevas court held that the prosecution for February 1992 cocaine sales to the undercover officer was not barred under section 654 and Kellett. (Cuevas, at p. 621.)
Here, in case No. 18-3633, a jury found defendant guilty of possession for sale of methamphetamine (Health & Saf. Code, § 11378), and possession of heroin (Health & Saf. Code, § 11350). These charges arose from an incident on June 16, 2018, when law enforcement went to defendant's trailer to arrest him on outstanding warrants. At the time, defendant was found to be in possession of heroin on his person and methamphetamine found inside the trailer. They also found a digital scale, a box of plastic baggies consistent with the baggie containing methamphetamine, and a box of nitrile gloves.
In case No. 18-5025, defendant pleaded no contest to conspiracy to commit a felony (§ 182, subd. (a)(1)), transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and possession for sale of a controlled substance (Health & Saf. Code, § 11378). Jail phone conversations between defendant and Herman that took place between July 5 and July 24, 2018, formed a substantial part of the basis for these charges. In the July 24, 2018, conversation Herman said the methamphetamine Deputy Saunders found in her possession the previous day "was intended to be delivered to a female just outside of Woodland but that she was not home." 19
These two prosecutions involve underlying facts occurring at different times and at different places. The first prosecution depended on heroin and methamphetamine found in defendant's possession at his trailer on June 16, 2018. Evidence of the drugs and evidence recovered in that case was not introduced in the second prosecution. The second prosecution pertained to a conspiracy between defendant and Herman to sell additional methamphetamine occurring between defendant's arrest on June 16, 2018, and July 24, 2018, and defendant's aiding and abetting Herman in possessing and transporting methamphetamine. The evidence establishing these crimes included their phone conversations and Herman's July 23, 2018, arrest in a parking lot with methamphetamine in the vehicle. "Kellett does not require, nor do the cases construing it, that offenses committed at different times and at different places must be prosecuted in a single proceeding." (Cuevas, supra, 51 Cal.App.4th at p. 624.)
In his reply brief, defendant attempts to distinguish Cuevas as follows: "in Cuevas, the defendant was charged with separate acts-2 individual drug sales to an undercover agent and the subsequent search of her home-which occurred at separate times and separate locations. Here, [defendant's] conspiracy prosecution arose only because he was in custody following his arrest in June. But for that arrest, the conspiracy allegation would not have been possible, as it was based entirely upon phone calls between [defendant] and Herman while he was in custody following the June arrest."
We are unpersuaded. As the court in Hendrix observed, the test for resolving the question of whether the same act or course of conduct played a significant part in both prosecutions "is not whether one offense led to the second offense." (Hendrix, supra, 20 Cal.App.5th at p. 465.) Thus, the fact that the phone calls would not have taken place had defendant not been incarcerated is irrelevant to Kellett analysis. Moreover, the two prosecutions here indeed involve acts occurring at different times and at different places.
Under the time and place test, the two prosecutions did not consist of the same act or course of conduct under Kellett. 20
b. The Evidentiary Test
"Under the evidentiary test, we consider whether the evidence needed to prove one offense necessarily supplies proof of the other. [Citation.] The evidentiary test requires 'more than a trivial overlap of the evidence.'" (Ochoa, supra, 248 Cal.App.4th at p. 36, italics added.)" 'Simply using facts from the first prosecution in the subsequent prosecution does not trigger application of Kellett.'" (Id. at p. 29.)
The evidence required to establish defendant's guilt in case No. 18-3633 included law enforcement testimony concerning defendant's arrest at his trailer and the controlled substances and indicia of drug sales found in searches of defendant's person and of the trailer. Additionally, Milliron testified about two of the July 2018, phone conversations between defendant and Herman.
As noted, in the preliminary hearing in case No. 18-5025, the prosecution did not introduce evidence of the drugs or other physical evidence supporting the charges in case No. 18-3633. The drugs defendant and Herman conspired to traffic and the drugs Herman was transporting at the time of her arrest involved additional quantities of drugs. The only evidentiary overlap was the introduction of two of the seven phone conversations in the earlier prosecution.
The Attorney General analogizes this case to Valli, supra, 187 Cal.App.4th 786. In Valli, the defendant had been acquitted of charges of murder, attempted murder, and being a felon in possession of a firearm. (Id. at p. 790.) However, he was arrested minutes after his acquittal for evading arrest. (Ibid.) At the murder trial, the prosecution, in attempting to prove the defendant's consciousness of guilt, had presented "evidence that days after the shooting defendant once drove recklessly in fleeing from the police and later, as a passenger, successfully directed a driver to flee from the police." (Ibid.) After his conviction at the second trial on two counts of felony evasion, "based in part on his testimony in the murder trial in which he admitted the evading," the defendant 21 appealed, asserting the trial court erred in denying his motion to dismiss the evading charges based on section 654 and Kellett. (Valli, at p. 790.)
Another panel of this court affirmed. (Valli, supra, 187 Cal.App.4th at p. 791.) The Valli court concluded: "Although the People used evidence of the evading in the murder trial to show consciousness of guilt, the same act or course of conduct did not play a significant part in both the murder and the evading." (Ibid.) In reaching its conclusion, the court stated: "Different evidentiary pictures are required-one of a shooting at night and the other of police pursuits in the following days. Different witnesses would testify to the events." (Id. at p. 799.) The Valli court acknowledged that "the People relied on the evidence of the felony evading to prove the murder charge. Many of the witnesses to the evading, both civilian and police, testified in the murder trial. While there were additional civilian witnesses in the evading trial, there was 'a recycling of much of the same evidence which the People had to support the earlier prosecutions.' [Citation.] In attempting to prove murder by establishing defendant's flight and consciousness of guilt, the People did more than simply use facts of defendant's evading the police; the People proved felony evading." (Id. at pp. 799-800.) However, "the evidence needed to prove murder-that defendant was the shooter-did not supply proof of evading. Evidence of the evading showed at most a consciousness of guilt as to the murder; as the acquittal shows, it was insufficient to supply proof of the murder. There was little evidentiary overlap between the murder and the evading offenses; the People simply used the evidence of evading to show consciousness of guilt . . . ." (Id. at p. 800.)
Here, the phone conversation evidence in defendant's later prosecution for conspiracy, transporting methamphetamine, and possession for sale of methamphetamine, was necessary to that prosecution. It formed the foundation for the prosecution of defendant on those counts following Herman's arrest when 8.461 grams of methamphetamine and a digital scale were found in her vehicle. Conversely, defendant's 22 possession of methamphetamine and heroin the previous month was not required for, or even necessarily relevant to, the later prosecution; nor was that evidence introduced in the preliminary hearing in that later prosecution.
The phone conversation evidence admitted in defendant's earlier prosecution was relevant to prove his intent with regard to the methamphetamine in his possession on June 16, 2018. However, that evidence was not strictly necessary to that prosecution; there was evidence of a large quantity of methamphetamine and physical evidence indicating the drugs were possessed for the purpose of sale. Moreover, the prosecution only presented evidence of two phone conversations, and "[s]imply using facts from the first prosecution in the subsequent prosecution does not trigger application of Kellett." (Valli, supra, 187 Cal.App.4th at p. 799.) Here, there was no more than" 'a trivial overlap of the evidence'" between the two prosecutions. (Ochoa, supra, 248 Cal.App.4th at p. 36.)
Defendant asserts the "evidence necessary to prosecute the second case was totally dependent upon the fact that appellant was incarcerated because of the offenses alleged in 18-3633. Without that foundation, the jail calls and alleged 'conspiracy' could not have been prosecuted." Defendant's argument attempts to deploy Kellett and the section 654 proscription against multiple prosecutions to shield him from prosecution for subsequent and ongoing criminal conduct on the grounds that he was incarcerated for prior conduct of the same nature. Defendant cannot avoid the second prosecution because, while he was being held in jail on the earlier case, he chose to conspire with Herman through phone calls from the jail to sell more methamphetamine. Such an absurd application of section 654 and Kellett would, in effect, create a shield to subsequent prosecution arising from defendant's choices to continue engaging in a criminal enterprise after detection and apprehension. As the Attorney General asserts, defendant's earlier possession for sale was complete on June 16, 2018, once law enforcement arrested him and seized the methamphetamine found in his trailer, and "[h]is subsequent decision to engage in the 23 sale of different methamphetamine through Herman does not entitle him to protection against multiple prosecutions." We agree. Section 654 and Kellett do not immunize drug dealers in their continuing and ongoing efforts to traffic drugs while they are incarcerated.
3. Underlying Legislative Policy
In deciding whether section 654 bars a subsequent prosecution, we may also consider the totality of the facts in light of that provision's legislative goals. (See People v. Linville (2018) 27 Cal.App.5th 919, 934; Valli, supra, 187 Cal.App.4th at p. 799.) As stated ante, the rule against multiple prosecutions under section 654" 'is a procedural safeguard against harassment . . . .'" (Valli, at pp. 794-795.) But" '[a]n accused will not be deemed "harassed" under . . . section 654, where the claimed harassment "may be said to result from his own conduct." '" (Linville, at p. 935.) Nor can it be considered a waste of public funds to prosecute drug traffickers for their ongoing conspiratorial criminal conduct.
4. Purported Delay in Prosecution
Advancing a novel argument, defendant urges us to apply section 654 and Kellett because the prosecution could have joined the charges in case No. 18-5025 with case No. 18-3633 more than a month before the scheduled trial date in the earlier of the two prosecutions. Whether this is true or not, it is not the relevant test. As this court has previously stated in Valli in a different context, because of the discretion afforded to prosecutorial charging decisions, "[w]e refuse to require prosecutors to proceed against a defendant on all known charges simultaneously." (Valli, supra, 187 Cal.App.4th at p. 801.) Rather, we adhere to the two-prong test set forth in Kellett, the second prong of which requires that the "same act or course of conduct play[] a significant part," in both prosecutions. (Ochoa, supra, 248 Cal.App.4th at p. 35 ["the issue under Kellett is whether his course of conduct played a significant part in both cases"].) That inquiry does not turn on the timing of the prosecutions. 24
5. Conclusion
We conclude the trial court did not err in denying defendant's motion pursuant to section 654 and Kellett to dismiss the prosecution against him in case No. 18-5025 based on his earlier prosecution in case No. 18-3633. As noted, "the issue under Kellett is whether his course of conduct played a significant part in both cases." (Ochoa, supra, 248 Cal.App.4th at p. 35.) We conclude it did not, whether considered under the "time and place" test or the "evidentiary" test.
In light of our conclusion, defendant's contention that, by denying his motion, the trial court deprived him of his rights under the United States and California Constitutions is meritless.
III. Ability to Pay Hearing and Dueñas
A. Additional Background
At sentencing, the trial court reimposed all fines, fees, and penalty assessments previously imposed in case Nos. 13-1796, 14-0468, and 15-5084.
In each of the 2018 cases the court imposed a restitution fine of $300 (§ 1202.4), a collection fee of $30 (§ 1202.4, subd. (l)), a $50 crime lab analysis fee plus a penalty assessment of $155 (Health & Saf. Code, § 11372.5), a $150 drug program fee plus a penalty assessment of $465 (Health & Saf. Code, § 11372.7), a court operations assessment of $40 for each felony (§ 1465.8), and a criminal conviction assessment of $30 for each felony (Gov. Code, § 70373).
The abstract of judgment indicates the trial court also imposed $300 parole revocation restitution fines pursuant to section 1202.45 in case Nos. 18-3633 and 18-5025. However, the court did not orally impose these fines at sentencing. We shall order the judgment corrected to reflect the imposition of these fines.
Defendant did not object to the imposition of fines, fees, and penalty assessments, assert an inability to pay, raise due process or cruel and unusual punishment claims, or argue that he was entitled to an ability to pay hearing. 25
B. Defendant's Contentions
Defendant asserts that, under Dueñas, supra, 30 Cal.App.5th 1157, the trial court violated his state and federal due process rights by imposing fines, fees, and assessments without finding that he had the ability to pay. Defendant asserts that, while the court in Dueñas considered only the fines imposed under Government Code section 70373 and section 1465.8, "the reasoning is equally applicable to the additional fines, fees and assessments imposed here." Defendant maintains that he is presumptively and actually indigent. Defendant asserts that his trial counsel's failure to raise the issue did not forfeit it. He further asserts that, if the issue has been forfeited, he received the constitutionally ineffective assistance of counsel.
C. Forfeiture
The Court of Appeal, Second Appellate District, Division Seven, filed Dueñas on January 8, 2019. (Dueñas, supra, 30 Cal.App.5th 1157.) The trial court sentenced defendant on February 15, 2019, more than a month later. As defendant acknowledges, he did not raise Dueñas or due process. Defendant's failure to raise these matters at sentencing forfeits his argument by operation of normal rules of appellate review. (People v. Scott (1994) 9 Cal.4th 331, 351-354 [to preserve a sentencing issue for appellate review, it must be raised in the trial court].) This is so notwithstanding the fact that defendant's claims are constitutional in nature. (See People v. Trujillo (2015) 60 Cal.4th 850, 859 [constitutional exception to forfeiture rule did not apply to claim concerning failure to obtain express waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th 875, 880-881 ["' "a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it"' "]; see also People v. Baker (2018) 20 Cal.App.5th 711, 720 [Eighth Amendment claim of cruel/unusual punishment is fact-specific and is therefore forfeited if not raised in the trial court].) Defendant asserts that Dueñas "constituted a significant change in the law that was not 26 foreseeable at the time of [his] sentencing." However, defendant did not have to foresee Dueñas. It had been filed more than a month prior to his sentencing. While he acknowledges Dueñas was decided before his sentencing, he asserts that, at the time of his sentencing, no other cases had been decided applying Dueñas "to other circumstances less dire than the defendant's situation in that matter . . . ." This observation does not excuse defendant's forfeiture, and the cases defendant cites in support of this proposition involve the question of forfeiture of similar claims at sentencing proceedings which were conducted before Dueñas. We proceed to defendant's ineffective assistance of counsel claim.
In seeking to avoid forfeiture, defendant also asserts we may reach the issue as it affected his fundamental, constitutional, or substantial rights. In light of our consideration of defendant's contentions in the context of defendant's ineffective assistance of counsel claim, and in light of our substantive determinations, we reject this contention as moot and/or lacking in merit.
D. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To demonstrate prejudice, the defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.)
The Dueñas court held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under . . . section 1465.8 and 27 Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) That court also held that, "although . . . section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
Defendant's arguments hinge on the analysis in Dueñas finding an ability to pay hearing is required under due process before imposing fines and fees. We are not persuaded this analysis is correct. We join the courts concluding Dueñas was wrongly decided and hold due process does not require determination of a defendant's present ability to pay before imposing the fines and fees at issue. (See People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 860; People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917, 923-929.) We find the reasoning in Hicks and these other cases persuasive and reject the holding in Dueñas. We thus conclude that due process does not require the trial court to conduct an ability to pay hearing prior to imposing these fines, fees, and assessments.
In light of this determination, we conclude defendant's trial attorney's performance was not deficient for failure to raise the claim that due process required determination of a defendant's ability to pay before imposing fines, fees, and assessments. (People v. Ochoa (1998) 19 Cal.4th 353, 463 [counsel is not constitutionally ineffective for failing to raise a meritless objection]; People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile"].)
To the extent he raises such a claim, defendant has not persuaded us that imposition of the fines, fees, and assessments violated his Eighth Amendment right 28 against excessive fines as that right was recently described by the United States Supreme Court in Timbs v. Indiana (2019) __ U.S. __ , on which defendant relies. We are not persuaded that the fines, fees, and assessments imposed in this case are excessive based on" '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay.'" (People v. Aviles, supra, 39 Cal.App.5th at p. 1070, quoting People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; see United States v. Bajakajian (1998) 524 U.S. 321, 334.) We note in this regard that there is no evidence in the record to suggest defendant does not have an ability to pay based on what he may earn while incarcerated. (See People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844 [appropriate to consider wages that will be earned in prison]; People v. Johnson (2019) 35 Cal.App.5th 134, 139 [discussing ability to earn in prison to satisfy fines and fees obligations].) Additionally, the record suggests defendant had a car registered in his name that Herman used. Thus, counsel was not constitutionally ineffective for failing to raise a claim under the Eighth Amendment in the trial court. (People v. Ochoa, supra, 19 Cal.4th at p. 463; People v. Price, supra, 1 Cal.4th at p. 387.)
Defendant was not deprived of the constitutionally effective assistance of counsel at sentencing based on counsel's failure to object to the imposition of fines, fees, and assessments under due process, Dueñas, or otherwise. 29
In light of our determination, we need not address the parties' dispute as to whether the matter of the fines, fees, and assessments imposed in case Nos. 13-1796, 14-0468, 15-5084, and 18-3633 are properly before us.
IV. Section 667.5, Subdivision (b) Prior Prison Term Enhancements
A. Parties' Contentions
While this appeal was pending, the Governor signed S.B. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1), effective January 1, 2020. In supplemental briefing, defendant asserts that the two one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b) must be stricken as a result. Defendant asserts S.B. 136 is retroactive to all cases not yet final under the rule in In re Estrada (1965) 63 Cal.2d 740 (Estrada).
While agreeing that S.B. 136 applies retroactively, the Attorney General asserts the record is insufficient to determine whether defendant benefits from that legislation. The Attorney General asserts that defendant admitted to two prior prison terms in case No. 18-3633, which is not on appeal here. In the case on appeal here, case No. 18-5025, defendant did not admit to any prior prison terms. The Attorney General asserts that the convictions underlying the section 667.5, subdivision (b) prior prison term enhancements imposed in case No. 18-3633 are not established in the record on appeal. Thus, according to the Attorney General, because nothing in the record on appeal establishes that the prior prison term enhancements were not imposed based on convictions that would still support such enhancements, defendant has failed to meet his burden of demonstrating his entitlement to relief. The Attorney General further asserts that, should we deem defendant entitled to relief on this record, we should remand for resentencing to afford the trial court the opportunity to consider the entire sentencing scheme.
B. Analysis
We agree with the parties that, if defendant's prior convictions on which the prior prison term enhancements were based would no longer support a section 667.5, subdivision (b) enhancement, under the rule in Estrada, defendant is entitled to the ameliorative benefit of S.B. 136 (Stats. 2019, ch. 590, § 1) since that law became effective while his appeal was pending. (People v. Gastelum (2020) 45 Cal.App.5th 757, 761, 772; 30 People v. Winn (2020) 44 Cal.App.5th 859, 872-873; People v. Jennings (2019) 42 Cal.App.5th 664, 682; People v. Lopez (2019) 42 Cal.App.5th 337, 341.) Thus, we attempt to ascertain the nature of the convictions underlying those enhancements.
The trial court in orally pronouncing sentence did not specify the nature of the convictions underlying the enhancements.
The abstract of judgment indicates that these enhancements are those alleged in what the abstract refers to as case E, corresponding to case No. 18-3633. The sentencing minute order appears to indicate that these enhancements were those denominated as case enhancements A and B in case No. 18-3633.
Defendant points to the complaint filed in case No. 18-5025. Case enhancement A in that complaint is a section 667.5, subdivision (b) enhancement allegation based on an underlying conviction under section 496 in Yolo County Superior Court case No. 08F00657, and case enhancement B was based on an underlying conviction under Health and Safety Code section 11379 in Solano County Superior Court case No. FCR193848.
The Attorney General asserts that, while these enhancement allegations may have appeared in the complaint in case No. 18-5025, that instrument was superseded by the information, which does not contain those enhancements.
In his supplemental reply brief, defendant notes the probation report sets forth all offenses of which he has been convicted, and two of those convictions correspond to those alleged as case enhancements A and B in the complaint in case No. 18-5025. He further asserts that he would not have been eligible for sentencing to local prison under section 1170, subdivision (h)(3) had he been convicted of a prior sexual offense.
On this record, it certainly appears defendant's prior convictions underlying the section 667.5, subdivision (b) prior prison term enhancements are no longer qualifying under that section as amended by S.B. 136. 31
Nevertheless, we shall remand the matter to the trial court. "In general, when an error affects part of a sentence, we must remand for a full resentencing on all counts and allegations." (People v. Gastelum, supra, 45 Cal.App.5th at pp. 772-773, citing People v. Buycks (2018) 5 Cal.5th 857, 893.) We shall remand the matter so the trial court may definitively determine whether defendant's prior convictions no longer qualify as section 667.5, subdivision (b) prior prison term enhancements following the enactment of S.B. 136, and, assuming that to be the case, for resentencing to allow the court to exercise its sentencing discretion in light of the changed circumstances.
In light of our determination, we do not address the parties' dispute as to the extent to which case No. 18-3633 is properly before this court on this appeal, purportedly from the judgment in case No. 18-5025.
V. Registration Pursuant to Health and Safety Code Section 11590
The trial court at sentencing ordered defendant to register as a narcotics offender under former Health and Safety Code section 11590. On October 8, 2019, the Governor signed Assembly Bill No. 1261 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 580, § 1), which repealed that section and its registration requirement. Defendant asserts that we should strike the requirement that he register as a narcotics offender pursuant to former Health and Safety Code section 11590 because that statute has been repealed. The Attorney General agrees, as do we. The repeal of former Health and Safety code section 11590 eliminated a burden once imposed on certain narcotics offenders. Under the rule of Estrada, defendant is entitled to the benefit of the repeal, and, accordingly, the judgment must be modified to strike the narcotics offender registration requirement. (See Estrada, supra, 63 Cal.2d 740.) 32
DISPOSITION
The appeal in case No. C089074 is dismissed as moot.
In case No. C089229, the oral pronouncement of judgment is modified to reflect the imposition of $300 parole revocation restitution fines pursuant to section 1202.45 in case Nos. 18-3633 and 18-5025. The judgment is remanded to the trial court to (1) strike the narcotics offender registration requirement imposed under former Health and Safety Code section 11590, and (2) determine whether defendant's two section 667.5, subdivision (b) prior prison term enhancements remain viable following the enactment of S.B. 136 and, if not, to strike those enhancements and resentence defendant. The judgment is otherwise affirmed. The trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: RAYE, P. J., BLEASE, J. 33