Filed 9/18/20 P. v. Lujan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E072895
v. (Super.Ct.Nos. RIF1506133
& RIF1701526)
ANGEL EDDIE LUJAN,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge.
(Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed with directions.
Gregory L. Cannon, 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, Arlene A. Sevidal and Michael
Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2017, while being held in county jail awaiting trial on charges of attempted
premeditated and deliberate murder, aggravated mayhem, and assault with means of force
likely to produce great bodily injury, defendant and appellant Angel Eddie Lujan was
charged with knowing possession of methamphetamine while in jail, a violation of Penal
Code section 4573.6.1 A jury convicted him of assault with force likely to cause great
bodily injury with a great bodily injury enhancement. Thereafter, he pled guilty to the
possession charge and admitted a prison prior stemming from a child cruelty conviction.
The plea was contingent on his sentence running concurrent with the term imposed on the
assault conviction.
The court sentenced defendant to seven years in prison on the assault and great
bodily injury enhancement with concurrent sentences for the methamphetamine
possession (three years) and the prior prison term enhancement (one year). The court’s
orders also included reference to completing counseling and educational programs and
encouragement that defendant take advantage of programs offered for substance abuse.
Defendant filed a notice of appeal.
DISCUSSION
On appeal, defendant argues (i) the prior prison term should be stricken, and
(ii) the court lacked authority to require him to complete counseling and education
programs. We will affirm with directions to strike the prior prison term and to correct the
1 All further statutory references are to the Penal Code unless otherwise indicated.
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sentencing minute order to reflect a recommendation that defendant participate in a
counseling or education program with a substance abuse component.
1. The prior prison term
Defendant argues he should benefit from the amendment to subdivision (b) of
section 667.5, which limits prior prison term enhancements to specific sexually violent
offenses. The People concede the point, and we agree.
When defendant was sentenced in May 2019, the trial court was required to
impose a one-year sentence enhancement for each true finding on an allegation the
defendant had served a separate prior prison term and had not remained free from custody
for at least five years. (Pen. Code, former § 667.5, subd. (b).) Senate Bill No. 136
amended that provision to limit the enhancement to prior prison terms resulting from
convictions for sexually violent offenses as defined by section 6600 of the Welfare and
Institutions Code. The amendment became effective January 1, 2020. (Stats. 2019,
ch. 590, § 1.)
A new or amended statute that reduces the punishment for an offense will, absent
evidence to the contrary, apply retroactively to any case in which the judgment is not yet
final on the statute’s operative date. (In re Estrada (1965) 63 Cal.2d 740, 742, 744-745;
People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195-1196, disapproved on other
grounds as stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) For the purposes of
the Estrada rule, a judgment is not final so long as courts are able to provide a remedy on
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direct review, including the time within which to petition the United States Supreme
Court for writ of certiorari. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1336.)
Here, defendant’s sentence included a one-year enhancement for a prior prison
term that did not involve a sexually violent offense. This appeal from the judgment was
not final before January 1, 2020, and the parties have the right to further review by other
courts even after our opinion becomes final. Defendant is, therefore, entitled to benefit
from the ameliorative effect of Senate Bill No. 136’s amendment to subdivision (b) of
section 667.5. Accordingly, we will order the trial court to strike the prior prison
enhancement.
When a newly amended statute provides for reduction of punishment for an
offense in cases not yet final, the usual remedy is to vacate the sentence and remand the
matter with instructions to strike the enhancements and to resentence defendant in light of
the new provision so long as the new sentence is not for a term in excess of the original.
(See People v. Wright (2019) 31 Cal.App.5th 749, 756-757.) The People suggest that, in
this case, it will serve no useful purpose to order defendant to be resentenced as a result
of striking the prison prior because his sentence for the methamphetamine possession and
the prison prior run concurrently with the seven-year sentence imposed for the assault
and related great bodily injury enhancement.
We agree that striking the enhancement will not have an impact on the time
defendant is required to serve. The more important consideration, however, is that
defendant’s sentence, including the term for the enhancement, was part of a plea
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agreement. Where, as here, the Legislature entirely eliminates the application of an
enhancement, the trial court may not reconsider other specific agreements contained in
the plea when it strikes the enhancement. (People v. Matthews (2020) 47 Cal.App.5th
857, 866-869.)
2. The educational and counseling programs
Defendant posits the court erred by directing him to complete programs while in
prison because it is authorized by statute only to recommend, not to order, participation in
programs.
If a defendant with a history of substance abuse is convicted of a felony and
sentenced to state prison, the trial court is required to recommend in writing that he or she
participate in a counseling or education program with a substance abuse component while
imprisoned. (§ 1203.096.)
When making its sentencing orders in this case, the trial court noted defendant’s
issues with substance abuse issues over the years and, without indicating whether the
statement was precatory or directive, it orally pronounced, “successfully complete
counseling, educational programs as directed by CDCR,” adding it “would encourage”
defendant to “take advantage of any substance abuse issues [sic], particularly alcohol.”
The minute order and the abstract of judgment provide, “[d]efendant to participate in a
counseling or educational program having a substance abuse component through the Div
of Adult Institutions (PC 1203.096).”
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The People point to the language in the oral pronouncement that the court
“encourages” defendant to participate in substance abuse programs and the reference in
the minutes and abstract of judgment to section 1203.096 as establishing the language
was merely a recommendation and, therefore, not error. We are not persuaded. The
character of the oral pronouncement is not clear. The written statement, “[d]efendant to
participate,” is directive. The fact that a parenthetical reference to section 1203.096 is
tagged onto the end of the statement does not necessarily signal that defendant’s
participation is voluntary even if the reader is aware that the statute requires the court to
recommend a defendant to participate in a program. Accordingly, we will order
amendment of the sentencing minutes and abstract of judgment to reflect with certainty
that the court recommends, not requires, defendant to participate in a counseling or
educational program having a substance abuse component while he is incarcerated.
DISPOSITION
The matter is remanded with instructions to: (1) amend the May 24, 2019
sentencing minute order nunc pro tunc to change the program participation language to
read: The court recommends defendant participate in a counseling or educational
program having a substance abuse component through the Div. of Adult Institutions (PC
1203.096); and (2) strike the one-year prior prison term and leave the remainder of the
sentences imposed under the plea agreement intact.
Following amendment of the sentencing minute order and striking the prior prison
term, trial court is directed to prepare an amended abstract of judgment and to forward a
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copy of the new abstract of judgment to the Department of Corrections and
Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
WE CONCUR:
MILLER
J.
SLOUGH
J.
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