Filed 8/28/20 P. v. Madrigal 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E073231
v. (Super.Ct.Nos. RIF1805263/
RIF1800017)
ROBERTO MADRIGAL,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric A. Keen, Judge.
Affirmed and remanded with directions.
Michael C. Sampson, 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, Eric A. Swenson, Allison V.
Acosta, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.
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MEMORANDUM OPINION
A jury found Roberto Madrigal guilty of felony evading a peace officer, and the
trial court found he had violated his probation terms.1 The court sentenced Madrigal to
six years in prison, which included two one-year enhancements for prior prison offenses.
On appeal, Madrigal argues a change in the law requires us to strike the two prior
prison offense enhancements. The People agree. We modify the judgment and remand for
resentencing.
On October 25, 2017, police attempted to execute a search warrant when the target
and two others, including Madrigal, fled by car. When they tried to stop the car, Madrigal
fled on foot, stole a pickup truck, drove erratically on the freeway, and eventually ditched
the pickup in a riverbed. He then fled on foot into a wooded area.
On January 2, 2018, the Riverside District Attorney charged Madrigal in one case
(No. RIF1800017) with felony evading a peace officer (Veh. Code, § 2800.2) and
unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) with a prior
conviction for vehicle theft (Pen. Code, § 666.5), and alleged Madrigal had two prior
prison offenses. (Pen. Code, § 667.5, subd. (b).) Madrigal pleaded guilty to both charges
and admitted the allegations for a sentence of four years, suspended pending successful
completion of three years’ probation.
On May 3, 2018, an officer attempted to stop Madrigal, who was driving with
expired registration tags. Madrigal didn’t stop, and instead led the police on an extended
1 We resolve this case by memorandum opinion because it raises no substantial
issue of fact or law. (California Standards of Judicial Administration, § 8.1.)
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chase. Again, Madrigal eventually ditched the car in a riverbed and fled on foot into a
wooded area.
On December 12, 2018, the Riverside District Attorney filed a felony complaint in
a second case (No. RIF1805263) charging Madrigal with felony evading a peace officer
(Veh. Code, § 2800.2) and driving without a license (Veh. Code, § 12500, subd. (a)).
They also filed a petition seeking to have the court find, on the basis of these charges,
that Madrigal had violated his probation. They later dropped the driving without a license
charge, and added allegations that Madrigal had three prior prison offenses.
On April 18, 2019, the court found Madrigal had violated his probation. Later, in
the second case, a jury found him guilty of felony evading a peace officer and the court
found the three prison prior allegations true. The court designated the sentence for the
felony evading a peace officer conviction in the second case as the principal term. It
sentenced Madrigal to the upper term of three years for that conviction and enhanced the
sentence by two years for two of the three prison priors. The court struck the final prison
prior enhancement in the interest of justice. It designated the vehicle theft conviction in
the first case as the subordinate term and sentenced him to one year, which is one-third of
the midterm for that conviction. It found the two offenses did not arise from the same act
or omission, so Penal Code section 654 did not bar punishment for both, and imposed a
two-year concurrent term for the felony evading a peace officer conviction in that case.
This added up to a total aggregate term of six years.
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Madrigal timely appealed from both the contested probation violation hearing and
the final judgment of conviction. He argues Senate Bill No. 136 requires all his one-year
prison prior enhancements be stricken. The People concede, and we agree.
In October 2019, the Legislature enacted Senate Bill No. 136, which amended
Penal Code section 667.5, subdivision (b). (2019-2020 Reg. Sess.) “Prior to this
amendment, the statute provided for a one-year enhancement for each prior separate
prison term, unless the defendant remained free from both prison custody and the
commission of a new felony for a five-year period after discharge. [Citations.] After the
amendment, ‘a one-year prior prison term enhancement will only apply if a defendant
served a prior prison term for a sexually violent offense as defined in Welfare and
Institutions Code section 6600, subdivision (b).’ ” (People v. Gastelum (2020) 45
Cal.App.5th 757, 772; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341 (Lopez).)
The amended statute became effective January 1, 2020. (Lopez, at p. 341; see Cal. Const.,
art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) It is undisputed Madrigal was never
convicted of a sexually violent offense, so the trial court can no longer impose a one-year
enhancement for either of his prior prison terms.
Madrigal’s conviction was not final as of the effective date of this change. (See
People v. Vieira (2005) 35 Cal.4th 264, 306 [“ ‘[F]or the purpose of determining
retroactive application of an amendment to a criminal statute, a judgment is not final until
the time for petitioning for a writ of certiorari in the United States Supreme Court has
passed.’ ”].) Because Madrigal’s conviction is not yet final, and because the amended
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statute leads to a reduced sentence, the amendment to Penal Code section 667.5,
subdivision (b), applies retroactively. (People v. Jennings (2019) 42 Cal.App.5th 664,
681-682; Lopez, supra, 42 Cal.App.5th at p. 341; see generally In re Estrada (1965) 63
Cal.2d 740, 745.) Accordingly, the two one-year sentence enhancements must be
stricken.
In general, when an error affects part of a sentence, we must remand for a full
resentencing on all counts and allegations, unless the court already imposed the
maximum allowable term. (People v. Buycks (2018) 5 Cal.5th 857, 893, 896, fn. 15.) The
trial court imposed the maximum possible sentence in the second case (No. RIF1805263).
It also imposed one-third the midterm for the subordinate vehicle theft conviction in the
first case (No. RIF1800017), which is the maximum allowable sentence for a consecutive
subordinate term. (Pen. Code, § 1170.1, subd. (a).) However, it chose to impose the two-
year term for evading a peace officer conviction in the second case concurrently rather
than consecutively. The decision whether to impose a concurrent term or a consecutive
term is within the discretion of the sentencing court, so the trial court may reconsider
Madrigal’s overall sentence on remand. (Pen. Code, § 669; People v. Bradford (1976) 17
Cal.3d 8, 20.) On remand for resentencing a trial court is “[n]ot limited to merely striking
illegal portions” of a sentence but “may reconsider all sentencing choices,” “because an
aggregate prison term is not a series of separate independent terms, but one term made up
of interdependent components.” (See People v. Hill (1986) 185 Cal.App.3d 831, 834;
People v. Hubbard (2018) 27 Cal.App.5th 9, 13.)
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DISPOSITION
We modify defendant’s sentence to strike the two one-year prior prison term
enhancements imposed under Penal Code section 667.5, subdivision (b), and remand for
resentencing. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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