Filed 9/25/20 P. v. Mack CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090694
Plaintiff and Respondent, (Super. Ct. No. 18FE012982)
v.
JONATHAN MARCUS MACK,
Defendant and Appellant.
Defendant Jonathan Marcus Mack timely appeals the judgment following a jury’s
determination that he committed reckless evasion of a pursuing peace officer while
driving in the opposite direction of traffic (Veh. Code, § 2800.4; count one) and reckless
evasion of a peace officer with a willful, wanton disregard for public safety (Veh. Code,
§ 2800.2, subd. (a); count two). In a bifurcated proceeding, the court found true the
special allegations that he had suffered a prior strike (Pen. Code, §§ 667, subds. (b)-(i),
1170.12)1 and had served two prior prison terms (§ 667.5, subd. (b)). Defendant asks that
we strike the two prior prison term enhancements imposed pursuant to section 667.5,
1 Undesignated statutory references are to the Penal Code.
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subdivision (b) in light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136).
The People concur, but ask that we remand the matter for resentencing since the trial
court did not impose the maximum term.
On October 8, 2019, the Governor signed Senate Bill 136, which amended section
667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). This bill narrowed the
eligibility for the one-year prison prior enhancement to those who have served a prior
prison sentence for a sexually violent offense, as defined. (§ 667.5, subd. (b).)
We agree with the parties that Senate Bill 136’s amendment should be applied
retroactively in this case. Whether a particular statute is intended to apply retroactively is
a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018)
4 Cal.5th 299, 307 [noting “the role of the court is to determine the intent of the
Legislature”].) Generally speaking, new criminal legislation is presumed to apply
prospectively unless the statute expressly declares a contrary intent. (§ 3.) However,
where the Legislature has reduced punishment for criminal conduct,2 an inference arises
under In re Estrada (1965) 63 Cal.2d 740 that, “ ‘in the absence of contrary indications, a
legislative body ordinarily intends for ameliorative changes to the criminal law to extend
as broadly as possible, distinguishing only as necessary between sentences that are final
and sentences that are not.’ ” (Lara, at p. 308.) Conversely, the Estrada rule “ ‘is not
implicated where the Legislature clearly signals its intent to make the amendment
prospective, by the inclusion of an express savings clause or its equivalent.’ ” (People v.
Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)
Here, Senate Bill 136 narrowed the class of offenders eligible for a section 667.5,
subdivision (b) prior prison term enhancement, thus rendering ineligible many
2 “A new law mitigates or lessens punishment when it either mandates reduction of
a sentence or grants a trial court the discretion to do so. (People v. Francis (1969)
71 Cal.2d 66, 75-78.)” (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
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individuals, including defendant, who served prior prison sentences for nonsexually
violent offenses. There is nothing in the bill or its associated legislative history that
indicates an intent that the court not apply this amendment to all individuals whose
sentences are not yet final. Under these circumstances, we find that Estrada’s inference
of retroactive application applies. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784,
797-798 [applying Estrada inference of retroactivity to legislative changes to § 12022.6,
subds. (a) & (b) enhancements].) Accordingly, we will amend the judgment to strike
defendant’s two one-year prior prison term enhancements.
Because the trial court imposed the midterm at sentencing, it is appropriate to
remand this matter for resentencing to allow the trial court to revisit its sentencing
choices in light of the changed circumstances. (See People v. Jennings (2019)
42 Cal.App.5th 664, 682 [remanding for resentencing following striking of enhancements
in light of Senate Bill 136]; People v. Francis (2017) 16 Cal.App.5th 876, 887 [remand
unnecessary where court could not alter sentence to compensate for the loss of
enhancements].)
DISPOSITION
We modify the judgment to strike defendant’s two one-year prior prison term
enhancements. The matter is remanded to the superior court for resentencing. The
judgment is otherwise affirmed.
KRAUSE , J.
We concur:
HOCH , Acting P. J.
RENNER , J.
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