People v. Pinedo

66 Cal.App.5th 608

280 Cal.Rptr.3d 896

The PEOPLE, Plaintiff and Respondent,

v.Pete PINEDO, Defendant and Appellant.

F078442

Court of Appeal, Fifth District, California.

Filed July 15, 2021

Certified for Partial Publication.^*

Jennifer Mouzis, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, Acting P.J.

INTRODUCTION

In 2018, defendant Pete Pinedo was arrested following a search of his residence by probation officers.¹ He was charged with two felonies, possession of a firearm by a felon ( Pen. Code, § 29800, subd. (a)(1) ; count 1)² and possession of ammunition by a felon (§ 30305, subd. (a)(1); count 2), and two misdemeanors, being under the influence of a controlled substance ( Health & Saf. Code, § 11550, subd. (a) ; count 3) and possession of drug paraphernalia ( Health & Saf. Code, § 11364 ; count 4). The charging document also alleged he served two prior prison terms within the meaning of section 667.5, former subdivision (b).

Defendant was convicted by jury of all four counts. In a bifurcated proceeding, the trial court found one prior prison term allegation true and the other allegation not true. The court also found that defendant violated parole in a separate case, Kern Superior Court case No. BV009363A.

The trial court sentenced defendant to the upper term of three years on count 1 plus one year for the prior prison term enhancement, for a total determinate term of four years in prison. The court also imposed the upper term of three years on count 2, stayed under section 654 ; a concurrent one-year jail term on count 3; and a 180-day jail term on count 4, with credit for time served. The court also ordered defendant to register as a narcotics offender under former Health and Safety Code section 11590 and imposed a minimum restitution fine of $300 under section 1202.4, subdivision (b)(1) ; a parole revocation restitution fine of $300 under section 1202.45, suspended; a total court operations assessment of $160 under section 1465.8, subdivision (a)(1) ; a total court facilities assessment of $120 under Government Code section 70373, subdivision (a)(1) ; a total crime lab fee of $100 under Health and Safety Code section 11372.5 with a total penalty assessment of $310; and a drug program fee of $100 under Health and Safety Code section 11372.7 with a penalty assessment of $310.

Defendant raises four claims on appeal. He requests we conduct an independent review of the proceedings related to his Pitchess³ motion and the trial court's determination that Deputy Probation Officer Ortiz's personnel file contained no information subject to disclosure, and he seeks relief from the fines, fees, and assessments imposed in this case without an ability-to-pay hearing, pursuant to the Court of Appeal's postsentencing decision in People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ). In supplemental briefing and in reliance on the Estrada presumption,⁴ defendant requests relief from the narcotics offender registration requirement under Assembly Bill No. 1261 and the prior prison term enhancement under Senate Bill No. 136, both of which were enacted after he was sentenced.⁵

The People do not object to our independent review of the Pitchess proceedings and they concede defendant is entitled to have the prior prison term enhancement stricken under Senate Bill No. 136. However, they contend defendant is not entitled to relief from the narcotics offender registration requirement because repeal of former Health and Safety Code section 11590 under Assembly Bill No. 1261 operates prospectively rather than retroactively under Estrada , and they dispute his entitlement to relief from the fines, fees, and assessments imposed.

We find no error with respect to either the Pitchess proceedings or the trial court's determination that there is no discoverable information in Officer Ortiz's personnel file. However, we conclude that defendant is entitled to relief from the narcotics offender registration requirement and the prior prison term enhancement under Assembly Bill No. 1261 and Senate Bill No. 136; and in accordance with our recent decision in People v. Montes (2021) 59 Cal.App.5th 1107, 273 Cal.Rptr.3d 915 ( Montes ), defendant is entitled to a remand so he may raise the issue of his ability to pay the fines, fees and assessments. The judgment is otherwise affirmed.

DISCUSSION

I. Independent Review of Pitchess Proceedings^**

II. Narcotics Offender Registration Requirement

A. Background

Defendant was convicted in 2018 of being under the influence of a controlled substance, in violation of Health and Safety Code section 11550, subdivision (a), a misdemeanor offense. As a result, he was subject to the narcotics offender registration requirement under former Health and Safety Code section 11590, which provided that a person convicted of certain qualifying offenses, including section 11550, "or any person who is discharged or paroled from a penal institution where he or she was confined because of the commission of any such offense, or any person who is convicted in any other state of any offense which, if committed or attempted in this state, would have been punishable as one or more of the [qualifying] offenses, shall within 30 days of his or her coming into any county or city, or city and county in which he or she resides or is temporarily domiciled for that length of time, register with the chief of police of the city in which he or she resides or the sheriff of the county if he or she resides in an unincorporated area." The failure to register in compliance with former Health and Safety Code section 11590 was punishable as a misdemeanor. (Former Health & Saf. Code, § 11594.)

Relevant to this appeal, effective January 1, 2020, Assembly Bill No. 1261 repealed former Health and Safety Code sections 11590 and 11594, and reenacted Health and Safety Code section 11594 to terminate the registration requirement. (Stats. 2019, ch. 580, §§ 1, 7 – 8, pp. 1, 3.)⁶

Defendant was sentenced on November 8, 2018, and the parties do not dispute that his conviction is not yet final. ( People v. Esquivel (2021) 11 Cal.5th 671, 676, 279 Cal.Rptr.3d 659, 487 P.3d 974 ( Esquivel ); People v. McKenzie (2020) 9 Cal.5th 40, 46, 259 Cal.Rptr.3d 224, 459 P.3d 25 ( McKenzie ).) In accordance with Estrada , defendant claims he is entitled to have the narcotics registration requirement stricken under Assembly Bill No. 1261.⁷ The People disagree. They argue that the "registration [requirement] is not a ‘punishment,’ and therefore is not subject to the retroactivity principles that apply to changes in the law which ameliorate punishment." Further, they contend that because "[n]othing in the legislative history of the repeal says one way or the other that it was intended to operate retroactively," "it should be read to apply prospectively under ordinary rules of construction."

We reject the People's position and conclude that defendant is entitled to relief from the registration requirement.

B. Legal Standard

"We review de novo questions of statutory construction. [Citation.] In doing so, ‘ "our fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ " ’ [Citation.] We begin with the text, ‘giv[ing] the words their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute's purpose [citation].’ [Citation.] ‘If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls.’ " ( People v. Blackburn (2015) 61 Cal.4th 1113, 1123, 191 Cal.Rptr.3d 458, 354 P.3d 268.)

"Generally, statutes are presumed to apply only prospectively." ( People v. Frahs (2020) 9 Cal.5th 618, 627, 264 Cal.Rptr.3d 292, 466 P.3d 844 ( Frahs ), citing People v. Lara (2018) 4 Cal.5th 299, 307, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ); § 3.) "However, this presumption is a canon of statutory interpretation rather than a constitutional mandate. [Citation.] Accordingly, ‘the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication.’ [Citation.] Courts look to the Legislature's intent in order to determine if a law is meant to apply retroactively." ( Frahs, supra , at p. 627, 264 Cal.Rptr.3d 292, 466 P.3d 844, citing & quoting Lara, supra , at p. 307, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

Pursuant to the California Supreme Court's decision in Estrada , "[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases not yet final on appeal at the time of the legislation's effective date. (See Estrada, supra , 63 Cal.2d at pp. 744–745, 48 Cal.Rptr. 172, 408 P.2d 948.) This presumption ‘rests on an inference 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.’ " ( People v. Gentile (2020) 10 Cal.5th 830, 852, 272 Cal.Rptr.3d 814, 477 P.3d 539 ( Gentile ); accord, Frahs, supra , 9 Cal.5th at p. 624, 264 Cal.Rptr.3d 292, 466 P.3d 844 ; McKenzie, supra , 9 Cal.5th at pp. 44–45, 259 Cal.Rptr.3d 224, 459 P.3d 25 ; Lara, supra , 4 Cal.5th at pp. 307–308, 228 Cal.Rptr.3d 394, 410 P.3d 22.) Relevant here, the Estrada presumption applies " ‘[a fortiorari] when criminal sanctions have been completely repealed before a criminal conviction becomes final.’ " ( Gentile, supra , at p. 854, 272 Cal.Rptr.3d 814, 477 P.3d 539, quoting People v. Rossi (1976) 18 Cal.3d 295, 301, 134 Cal.Rptr. 64, 555 P.2d 1313 ; accord, McKenzie, supra , at p. 45...