The opinion
Filed 7/15/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078442
Plaintiff and Respondent,
(Super. Ct. No. BF171497A)
v.
PETE PINEDO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
Jennifer Mouzis, 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.
-ooOoo-
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction,
part II. of the Discussion, and the Disposition are certified for publication.
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);
1 We do not further summarize the facts underlying defendant’s convictions, as they are
not relevant to the claims he raises on appeal.
2 All further statutory references are to the Penal Code unless otherwise specified.
2.
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
(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
3 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
4 In re Estrada (1965) 63 Cal.2d 740 (Estrada).
5 Assembly Bill No.1261 (2019–2020 Reg. Sess.) (Assembly Bill No. 1261 or Assem. Bill
No. 1261) and Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill No. 136).
3.
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 (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*
A. Background
Defendant filed a pretrial motion seeking discovery from the personnel file of
Officer Ortiz, who was involved in the residential search that resulted in defendant’s
arrest. (Evid. Code, § 1043; Association for Los Angeles Deputy Sheriffs v. Superior
Court (2019) 8 Cal.5th 28, 41.) The prosecutor opposed the motion, but the trial court
found good cause shown, conducted an in camera review of Officer Ortiz’s personnel
file, and determined there was no discoverable information. (Association for Los Angeles
Deputy Sheriffs v. Superior Court, supra, at pp. 41–43.) Defendant now requests that we
conduct an independent review of the Pitchess proceedings to ensure that the trial court
complied with the procedural requirements set forth in People v. Mooc (2001) 26 Cal.4th
1216, 1228–1229, and did not abuse its discretion in denying discovery. The People do
not oppose this request.
B. Legal Standard
Pursuant to Evidence Code section 1043, subdivision (b), “on a showing of good
cause, a criminal defendant is entitled to discovery of relevant documents or information
in the confidential personnel records of a peace officer accused of misconduct against the
defendant. [Citation.] Good cause for discovery exists when the defendant shows both
‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that
* See footnote, ante, page 1.
4.
the agency has the type of information sought.’ [Citation.] A showing of good cause is
measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial
court review of ‘all potentially relevant documents.’ [Citation.] If the defendant
establishes good cause, the court must review the requested records in camera to
determine what information, if any, should be disclosed. [Citation.] Subject to certain
statutory exceptions and limitations [citation], ‘the trial court should then disclose to the
defendant “such information [that] is relevant to the subject matter involved in the
pending litigation.”’” (People v. Gaines (2009) 46 Cal.4th 172, 179; accord, Association
for Los Angeles Deputy Sheriffs v. Superior Court, supra, 8 Cal.5th at pp. 40–43.)
On appeal, a defendant may request an independent review of the proceedings and
the trial court’s determination regarding the presence or absence of discoverable
information. (People v. Townsel (2016) 63 Cal.4th 25, 67–68; People v. Yearwood
(2013) 213 Cal.App.4th 161, 179–180.) “A trial court is afforded wide discretion in
ruling on a motion for access to law enforcement personnel records. The decision will be
reversed only on a showing of abuse of discretion.” (People v. Yearwood, supra, at
p. 180, citing People v. Hughes (2002) 27 Cal.4th 287, 330.)
C. No Abuse of Discretion
We have independently reviewed the record and examined Officer Ortiz’s
personnel file. We find the trial court followed the proper procedure and created an
adequate record of the in camera hearing. (People v. Mooc, supra, 26 Cal.4th at
pp. 1228–1229; People v. Yearwood, supra, 213 Cal.App.4th at p. 180.) We also find the
trial court did not abuse its discretion in determining there is no information subject to
disclosure. (People v. Samayoa (1997) 15 Cal.4th 795, 827.)
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
5.
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 [2021 Cal.
Lexis 4156, *7] (Esquivel); People v. McKenzie (2020) 9 Cal.5th 40, 46 (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
6 In full, Assembly Bill No. 1261 repealed former Health and Safety Code sections 11590,
11592, 11593, 11594, and 11595; reenacted section 11594; and amended sections 11591 and
11591.5 pertaining to school employees and community college district teachers or instructors.
(Stats. 2019, ch. 580, §§ 1–9, pp. 1–3.)
7 “While [former Health and Safety Code] section 11590 creates a duty on any person
within its terms to comply with the registration provisions, it does not give rise to a concomitant
6.
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.)
“Generally, statutes are presumed to apply only prospectively.” (People v. Frahs
(2020) 9 Cal.5th 618, 627 (Frahs), citing People v. Lara (2018) 4 Cal.5th 299, 307
(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, citing & quoting Lara, supra, at p. 307.)
duty on the part of the trial court to order a convicted person to comply with such registration
provisions.” (In re Luisa Z. (2000) 78 Cal.App.4th 978, 983 (Luisa Z.), citing People v. Terrell
(1999) 69 Cal.App.4th 1246, 1258.) In this instance, however, the trial court ordered defendant
to register and the requirement is reflected in the abstract of judgment.
7.
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.) 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 (Gentile); accord, Frahs, supra, 9 Cal.5th at p. 624;
McKenzie, supra, 9 Cal.5th at pp. 44–45; Lara, supra, 4 Cal.5th at pp. 307–308.)
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, quoting People v. Rossi (1976) 18 Cal.3d 295, 301; accord, McKenzie,
supra, at p. 45; People v. Collins (1978) 21 Cal.3d 208, 212–213.)
C. Analysis
1. Estrada Presumption Applies
To support their position that defendant is not entitled to relief from the narcotics
offender registration requirement under Estrada, the People cite Alva, Castellanos, and
Luisa Z. for the proposition that the registration requirement is not punishment. (In re
Alva (2004) 33 Cal.4th 254, 280 (Alva); People v. Castellanos (1999) 21 Cal.4th 785,
799, 805 (Castellanos); Luisa Z., supra, 78 Cal.App.4th at p. 983.) However, those cases
analyzed whether the relevant registration requirements constituted punishment within
the confines of specific constitutional challenges, and we do not find them informative in
this context.8 (Alva, supra, at p. 290 [mandatory lifetime sex offender registration not
8 In People v. Ruiz, the California Supreme Court stated, “‘[T]he traditional aims of
punishment’ are ‘retribution or deterrence.’ (People v. Alford (2007) 42 Cal.4th 749, 759.)
However, a sanction does not constitute punishment merely because it has some ‘deterrent or
retributive effect.’ (In re Alva[, supra,] 33 Cal.4th [at p.] 286 (Alva).) As we have explained in
the context of applying the state and federal protections against cruel and/or unusual
8.
punishment under cruel and/or unusual punishment clauses]; Castellanos, supra, at p. 796
[sex offender registration requirement not punishment for purposes of ex post facto
analysis]; Luisa Z., supra, at p. 983 [narcotics offender registration requirement not
punishment for purposes of ex post facto analysis]; see People v. Mosley (2015) 60
Cal.4th 1044, 1062–1069 [sex offender residency restriction not a penalty for a crime
within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)]; Johnson
v. Department of Justice (2015) 60 Cal.4th 871, 888–889, fn. 10 [sex offender
registration not punishment] (Johnson); In re Jorge G. (2004) 117 Cal.App.4th 931, 942–
943 [gang registration requirement not punishment under Apprendi]; People v. Bailey
(2002) 101 Cal.App.4th 238, 244 [gang registration requirement not punishment under ex
post facto clause].)
Registration requirements are consequences of qualifying criminal convictions.
(People v. Picklesimer (2010) 48 Cal.4th 330, 337–338 [sex offender registration
requirement a collateral consequence for purposes of habeas jurisdiction]; In re Stier
(2007) 152 Cal.App.4th 63, 82–83 [same]; People v. McClellan (1993) 6 Cal.4th 367,
375–376 [sex offender registration requirement a direct consequence for purposes of plea
advisement]; People v. Cotton (1991) 230 Cal.App.3d 1072, 1084 [narcotics offender
registration a direct consequence for purposes of plea advisement].) They are primarily
regulatory, and, foundational to the People’s argument, courts have concluded they do
punishments, ‘a sanction designed and intended only to serve legitimate nonpenal objectives is
not punishment … simply because it may burden, inconvenience, restrict, or deter in fact.’
(Ibid.) On the other hand, that a given sanction may ‘serve[] remedial purposes’ does not
establish that it is not ‘punishment.’ (Austin v. United States (1993) 509 U.S. 602, 610 [applying
the 8th Amend.]; see People ex rel. State Air Resources Bd. v. Wilmshurst (1999) 68 Cal.App.4th
1332, 1350 [‘Even assuming a fine serves some remedial purpose, it will be considered
punishment [for purposes of applying the Eighth Amendment] if it also serves either retributive
or deterrent purposes’].) In short, because ‘sanctions frequently serve more than one purpose’
(Austin, at p. 610) and have multiple effects, determining whether a given sanction constitutes
‘punishment’ is often difficult. (Cf. People v. One 1950 Cadillac Club Coupe (1955) 133
Cal.App.2d 311, 318 [‘Practically no civil sanction is entirely remedial or entirely intended as a
punishment’].)” (People v. Ruiz (2018) 4 Cal.5th 1100, 1107–1108.)
9.
not constitute punishment as it is defined in the context of the cruel and/or unusual
punishments clause, the ex post facto clause, or Apprendi. (E.g., People v. Mosley,
supra, 60 Cal.4th at pp. 1062–1069; Johnson, supra, 60 Cal.4th at pp. 888–889, fn. 10;
Alva, supra, at p. 290; Castellanos, supra, 21 Cal.4th at p. 796; Luisa Z., supra, 78
Cal.App.4th at p. 983; In re Jorge G., supra, 117 Cal.App.4th at pp. 942–943; People v.
Bailey, supra, 101 Cal.App.4th at p. 244). In Luisa Z., this court explained,
“‘Registration requirements generally are based on the assumption that persons convicted
of certain offenses are more likely to repeat the crimes and that law enforcement’s ability
to prevent certain crimes and its ability to apprehend certain types of criminals will be
improved if these repeat offenders’ whereabouts are known. [Citation.] Accordingly, the
Legislature has determined that sex offenders (Pen. Code, § 290), narcotics offenders
([former] Health & Saf. Code, § 11590) and arsonists (Pen. Code, § 457.1) are likely to
repeat their offenses and therefore are subject to registration requirements.’” (Luisa Z.,
supra, at p. 982; accord, Johnson, supra, at pp. 881–882; Alva, supra, at p. 265, fn. 5.)
Subsequent to the decision in Luisa Z., the Legislature also determined that defendants
who commit gang related crimes should be subject to a registration requirement, to
“help[] authorities monitor the location of those associating with gangs and thereby
promote[] the goal of protecting the public from gang-related violent crime.” (People v.
Bailey, supra, at p. 244 [§ 186.30].)
The People do not address application of these authorities to the reduction or
elimination of registration requirements in the context of Estrada, and the California
Supreme Court has made clear that the Estrada presumption applies broadly to
ameliorating benefits that flow from a change in the law. (Esquivel, supra, 11 Cal.5th at
pp. 674–675 [2021 Cal. Lexis 4156, *3–6]; Gentile, supra, 10 Cal.5th at p. 852; Frahs,
10.
supra, 9 Cal.5th at pp. 631–632.)9 Indeed, the primary focus is “whether a change in law
is ameliorative” (Esquivel, supra, at pp. 675–676 [2021 Cal. Lexis 4156, *6–8]), and in
People v. Durbin (1966) 64 Cal.2d 474, 479, the court applied the Estrada presumption
outside the context of punishment, to a statutory amendment affecting bail forfeiture.
The court explained, “What was there said with regard to an amendatory statute lessening
criminal punishment equally applies to the reduction or elimination of civil penalties or
forfeitures. [¶] It follows that whether the forfeiture of bail is considered a civil penalty
or as akin to criminal punishment, the amendment taking from the trial court the
discretion to declare forfeitures in cases as the present where the defendant is physically
unable to appear must be applied to all cases not final at the time the amendment became
effective.” (People v. Durbin, supra, at p. 479, italics added.)
We did not locate any published decisions addressing the Estrada presumption in
the context of Assembly Bill No. 1261, but a number of courts recently considered the
issue in the context of Assembly Bill No. 1950,10 which shortened the length of probation
for many offenders, and concluded the Estrada rule applies. (People v. Lord (2021) 64
Cal.App.5th 241, 245 (Lord); People v. Stewart (2021) 62 Cal.App.5th 1065, 1072–1073,
review granted June 30, 2021, S268787 (Stewart); People v. Sims (2021) 59 Cal.App.5th
943, 960–961 (Sims); People v. Quinn (2021) 59 Cal.App.5th 874, 882–883 (Quinn);
People v. Burton (2020 58 Cal.App.5th Supp. 1, 14–16 (Burton).) In several of those
cases, the People argued, without success, that probation is not punishment and,
therefore, we find the decisions informative. (Stewart, supra, at p. 1071, review granted;
Sims, supra, at p. 958; Quinn, supra, at pp. 882–883.)
9 Briefing was completed in this case prior to the California Supreme Court’s decisions in
Esquivel, Gentile and Frahs.
10 Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill No. 1950).
11.
In Burton, although the People did not advance the argument that probation is not
punishment, the court considered the issue, reasoning,
“[A] ‘[g]rant of probation is, of course, qualitatively different from such
traditional forms of punishment as fines or imprisonment. Probation is
neither “punishment” [citation] nor a criminal “judgment” [citation].
Instead, courts deem probation an act of clemency in lieu of punishment
[citations], and its primary purpose is rehabilitative in nature [citation].’
[Citations.] [¶] But, although probation is not considered ‘punishment’ for
specified purposes, the presumption of legislative intent in Estrada is not
confined to only situations when jail and prison sentences are directly
decreased due to new laws. A court may presume an intent to broadly
apply laws even when they ‘merely [make] a reduced punishment possible.’
(People v. Frahs, supra, 9 Cal.5th at p. 629.) The Legislature in this
instance clearly contemplated that reducing the amount of time probation
can last was significantly beneficial to persons on probation, and that
concomitantly, being on probation for longer than a year was detrimental
‘rather than being rehabilitative.’ As previously noted, ‘a legislative body
ordinarily intends for ameliorative changes to the criminal law to extend as
broadly as possible’ (People v. Conley [(2016)] 63 Cal.4th [646,] 657), not
solely to changes that reduce ‘punishment’ as defined in contexts different
than assessing whether Estrada is applicable.” (Burton, supra, 58
Cal.App.5th Supp. at pp. 15–16.)
Subsequently, the Courts of Appeal in Stewart, Sims, and Quinn agreed and
rejected the People’s argument that probation is not punishment within the meaning of
Estrada. (Stewart, supra, 62 Cal.App.5th at pp. 1072–1073, review granted; Sims, supra,
59 Cal.App.5th at pp. 959–961; Quinn, supra, 59 Cal.App.5th at p. 883; accord, Lord,
supra, 64 Cal.App.5th at p. 245.) Sims explained, “[W]e do not believe the label affixed
to probation—i.e., whether it is labeled punishment, rehabilitation, or some
combination—is necessarily determinative of whether the Estrada presumption of
retroactivity applies.” (Sims, supra, at p. 959.) “[P]robation—though often deemed
preferable to imprisonment from the perspective of a defendant—can be invasive, time-
consuming, and restrictive for a probationer. A probationer ‘is in constructive custody—
he is under restraint.’ [Citations.] Thus, ‘[w]hile probation is not technically a
“punishment,” being “‘rehabilitative in nature’” [citation], there is no question it is a
12.
sanction that imposes significant restrictions on the civil liberties of a defendant.’
[Citations.] By limiting the maximum duration a probationer can be subject to such
restraint, Assembly Bill No. 1950 has a direct and significant ameliorative benefit for at
least some probationers who otherwise would be subject to additional months or years of
potentially onerous and intrusive probation conditions.” (Ibid., fn. omitted.)
In Frahs, the California Supreme Court explained in the context of
section 1001.36, a mental health diversion statute, that “the diversion statute provides a
possible benefit to a class of criminal defendants,” and it is “the ameliorative nature of
the diversion program [that] places it squarely within the spirit of the Estrada rule.”
(Frahs, supra, 9 Cal.5th at p. 631.) “[I]n order to rebut Estrada’s inference of
retroactivity concerning ameliorative statutes, the Legislature must ‘demonstrate its
intention with sufficient clarity that a reviewing court can discern and effectuate it.’” (Id.
at p. 634.) More recently, in Esquivel, the court reiterated that the focus is on the
ameliorative nature of the change in the law and identified numerous contexts in which
Estrada was found applicable, including civil penalties or forfeitures. (Esquivel, supra,
11 Cal.5th at pp. 675–676 [2021 Cal. Lexis 4156, *6–7], citing People v. Durbin, supra,
64 Cal.2d at p. 479.)
The narcotics offender registration requirement was not as onerous as some
registration requirements, such as the lifetime sex offender registration requirement under
section 290, subdivision (d). However, for a five-year period (former Health & Saf.
Code, § 11594), the “registration requirement trigger[ed] associated statutory
obligations, such as maintaining current registration and furnishing fingerprints and
photographs to the Department of Justice. The registrant [was] subject to police inquiry
in the event crimes similar to those for which he or she … registered ha[d] occurred,” and
“[a]nyone who fail[ed] to comply with the registration requirement [was] guilty of a
misdemeanor.” (Luisa Z, supra, 78 Cal.App.4th at p. 983, citing former Health & Saf.
Code §§ 11590, 11594, subd. (a).) As previously stated, registration requirements serve a
13.
primarily regulatory function and are not considered punitive within the context of the
Eighth Amendment or Apprendi. Nevertheless, they impose a burden, or a sanction, on
an offender as a direct result of the offender’s qualifying criminal conviction. (People v.
Mosley, supra, 60 Cal.4th at pp. 1062, 1065; Alva, supra, 33 Cal.4th at pp. 268, 288–289,
fn. 17; Castellanos, supra, 21 Cal.4th at p. 796; People v. Martinez (2004) 116
Cal.App.4th 753, 760.) Thus, whatever label is affixed to registration requirements,
when properly viewed as a burdensome consequence of conviction, legislation that either
reduces or eliminates that burden clearly constitutes an ameliorative change in the law to
which the Estrada presumption applies. (See People v. Durbin, supra, 64 Cal.2d at
p. 479.)
2. Assembly Bill No. 1261
Assembly Bill No. 1261 repealed Health and Safety Code sections 11590 and
11594, which codified the narcotics registration requirement, and reenacted
section 11594, which now provides, “All registration requirements set forth in this
article, as it read on January 1, 2019, are terminated. The statements, photographs, and
fingerprints obtained pursuant to this section, as it read on January 1, 2019, are not open
to inspection by the public or by any person other than a regularly employed peace or
other law enforcement officer.” (Italics added.) “The basis of [the California Supreme
Court’s] decision in Estrada was [a] quest for legislative intent” (In re Pedro T. (1994) 8
Cal.4th 1041, 1045), and “‘[the] effect of repealing a statute is “to obliterate it as
completely from the records of the parliament as if it had never passed; and it must be
considered as a law that never existed, except for the purpose of those actions which were
commenced, prosecuted, and concluded while it was an existing law”’” (People v. Rossi,
supra, 18 Cal.3d at p. 301, quoting Spears v. County of Modoc (1894) 101 Cal. 303, 305).
We discern no ambiguity in this instance, and the People neither address the
substance of Assembly Bill No. 1261 nor endeavor to explain how defendant remains
under a legal duty to register as a narcotics offender under these circumstances.
14.
(Luisa Z., supra, 78 Cal.App.4th at p. 984.) The elimination of the registration
requirement through repeal is clear evidence of legislative intent (People v. Collins,
supra, 21 Cal.3d at p. 213), and the People’s position that defendant is not entitled to
relief from the registration requirement in this case is inconsistent both with the Estrada
presumption and, Estrada aside, with the plain language of the bill.
Although the plain language controls, given the People’s argument that nothing in
the legislative history indicates that retroactive application was intended, we point out
that the express intent of Assembly Bill No. 1261 was to delete the narcotics “registration
requirement and make conforming changes.” (Legis. Counsel’s Dig., Assembly Bill
No. 1261, ch. 580, p. 1.) Moreover, as explained in an analysis of the bill:
“The philosophy behind the creation of the narcotics registry is
inconsistent with the current approach to the treatment of drug offenses as
demonstrated by recent voter-approved initiatives and legislative measures
that have decreased the penalties for drug offenses and focused resources
on providing treatment. In 2000, voters approved Proposition 36, which
allows courts to divert non-violent defendants, probationers, and parolees
charged with simple drug possession or drug use from incarceration into
community-based substance abuse treatment programs. More recently, the
voters approved Proposition 47 in 2014, which reduced possession of
heroin, methamphetamine, and other drugs to a misdemeanor, and, in 2016,
the voters approved Proposition 64, which permits adults 21 years of age
and over to possess and grow specified amounts of cannabis for
recreational use.
“In addition to these voter initiatives, the Legislature passed
legislation in 2017 that limited the three-year prior-conviction sentence
enhancement for people convicted of specified drug crimes, and established
a pre-trial drug diversion program for many drug offenses. [See SB 180
(Mitchell, Chapter 677, Statutes of 2017), and AB 208 (Eggman,
Chapter 778, Statutes of 2017.)] Taking these drug reform measures into
account, the rationale for continuing drug offender registration is
questionable, especially considering that law enforcement has other
methods at its disposal to monitor drug offenders, including access to
arrest and conviction records.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 1261 (2019–2020 Reg.
Sess.) July 10, 2019, p. 7, italics added.)
15.
Based on the foregoing, we conclude that pursuant to the changes in the law
effected by Assembly Bill No. 1261, the narcotics registration requirement set forth in
former Health and Safety Code sections 11590 and 11594 is now a nullity. (People v.
Collins, supra, 21 Cal.3d at p. 213; People v. Rossi, supra, 18 Cal.3d at pp. 301–302.)
Therefore, that portion of the trial court’s oral pronouncement of judgment is stricken,
and the trial court shall issue an amended abstract of judgment omitting the registration
requirement.
III. Prior Prison Term Enhancement*
Under Estrada and in light of Senate Bill No. 136, defendant also seeks relief from
the one-year prior prison term enhancement. The People concede his entitlement to relief
on this claim.
Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant
here, trial courts are required to impose a three-year sentence for each prior, separate
prison term served by the defendant for a violent felony where the current offense is also
a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant
to former subdivision (b) of section 667.5, and subject to exceptions not relevant here,
trial courts are required to impose an additional one-year term for each prior, separate
prison term or county jail felony term. As amended by Senate Bill No. 136,
subdivision (b) of section 667.5 limits imposition of the additional one-year term to each
prior, separate prison term served for a conviction of a sexually violent offense as defined
in Welfare and Institutions Code section 6600, subdivision (b).
We agree with the parties that Senate Bill No. 136 is retroactive under Estrada
and, therefore, the amendment to section 667.5, subdivision (b), applies here. The trial
court found the prior prison term enhancement allegation true and imposed a one-year
term based on the enhancement. (§ 667.5, former subd. (b).) Defendant’s 2016
* See footnote, ante, page 1.
16.
conviction for possession of a firearm by a felon is not a qualifying offense under
section 667.5, subdivision (b), as amended. Therefore, we order the one-year prior prison
term enhancement imposed by the trial court stricken.11
IV. Dueñas Claim*
Finally, the trial court imposed the statutory minimum restitution fine of $300
under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300
under section 1202.45, subdivision (a), suspended; a total court operations assessment of
$160 under section 1465.8; 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
$310.12, 13 Pursuant to the Court of Appeal’s decision in Dueñas, supra, 30 Cal.App.5th
11 Striking the prior prison term enhancement does not require remand for resentencing
under the full resentencing rule where, as here, the trial court imposed the maximum sentence on
count 1. (People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.) However, as discussed in part IV.
of the Discussion, it is appropriate to remand this matter to allow defendant an opportunity to
raise the issue of his ability to pay the fines, fees, and assessments imposed.
* See footnote, ante, page 1.
12 Although referred to as fees, the drug program fee imposed under Health and Safety
Code section 11372.7 and the crime lab fee imposed under Health and Safety Code
section 11372.5 are punishments rather than nonpunitive administrative fees. (People v. Ruiz,
supra, 4 Cal.5th at p. 1122.)
13 The penalty assessments referred to herein are comprised of the following seven
assessments, surcharge, and penalties: “(1) a 100 percent state penalty assessment (§ 1464,
subd. (a)(1)); (2) a 20 percent state surcharge (§ 1465.7); (3) a state court construction penalty of
up to 50 percent (Gov. Code, § 70372); (4) a 70 percent additional penalty (Gov. Code, § 76000,
subd. (a)(1)); (5) a 20 percent additional penalty if authorized by the county board of supervisors
for emergency medical services (Gov. Code, § 76000.5, subd. (a)(1)); (6) a 10 percent additional
penalty ‘“[f]or the purpose of implementing the DNA Fingerprint, Unsolved Crime and
Innocence Protection Act”’ (Gov. Code, § 76104.6, subd. (a)(1)); and (7) a 10 percent additional
state-only penalty for the purpose of operating forensic laboratories under the same act (Gov.
Code, § 76104.7).” (People v. Hamed (2013) 221 Cal.App.4th 928, 935; accord, People v.
Johnson (2015) 234 Cal.App.4th 1432, 1457–1458.)
17.
1157, which was issued after defendant was sentenced, he requests we stay the restitution
fine and strike the fees and assessments until the prosecution proves he has the ability to
pay.
For the reasons set forth in our recent decision in Montes, we reject the People’s
forfeiture argument and their merits-based argument. (Montes, supra, 59 Cal.App.5th at
pp. 1117–1124.) On remand, the trial court shall allow defendant to raise the issue of his
ability to pay the fines, fees, and court assessments, and to make a record on those issues.
(Id. at p. 1122.)
A. Forfeiture
As we recognized in Montes, “the failure to object in the trial court generally
forfeits a claim on appeal and this principle is applicable to constitutional claims.
(§ 1259; People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40
Cal.4th 875, 880–881.) There are exceptions to this general rule, however, and courts of
review have the discretion to consider an issue notwithstanding the failure to object.
(People v. McCullough, supra, at p. 593; In re Sheena K., supra, at pp. 887–888, fn. 7.)”
(Montes, supra, 59 Cal.App.5th at pp. 1117–1118.)
Relevant here, “[t]he restitution statute [expressly] provides that the inability to
pay is not a ‘compelling and extraordinary reason not to impose a restitution fine[]’
(§ 1202.4, subd. (c)), but where … a trial court imposes a restitution fine above the
statutory minimum, the court may consider the defendant’s inability to pay in setting the
fine (§ 1202.4, subd. (d)).” (Montes, supra, 59 Cal.App.5th at p. 1118, italics added.)
Because the trial court here imposed a minimum restitution fine of $300, defendant was
precluded from objecting to the fine based on his inability to pay. (Ibid., citing § 1202.4,
subd. (c).) Likewise, the two crime lab fees of $50 each, imposed on counts 3 and 4
pursuant to Health and Safety Code section 11372.5, which included total attached
penalty assessments of $310, were mandatory. (People v. Sharret (2011) 191
Cal.App.4th 859, 870.)
18.
Additionally, “‘[r]eviewing courts have traditionally excused parties for failing to
raise an issue at trial where an objection would have been futile or wholly unsupported by
substantive law then in existence.’ (People v. Welch (1993) 5 Cal.4th 228, 237; accord,
People v. Gomez (2018) 6 Cal.5th 243, 286–287; People v. Black (2007) 41 Cal.4th 799,
810.)” (Montes, supra, 59 Cal.App.5th at p. 1119.) “[T]he decision in Dueñas
constituted a marked departure from existing law.” (Ibid.) Given the statutory language
of Penal Code section 1202.4 and Health and Safety Code section 11372.5, and the state
of the substantive law prior to Dueñas, we decline to find that defendant forfeited his
Dueñas claim.14 (Montes, supra, at p. 1121; accord, People v. Son (2020) 49
Cal.App.5th 565, 596–597; People v. Jones (2019) 36 Cal.App.5th 1028, 1031).
B. Remand Appropriate Due to Undeveloped Record
As explained in Montes, “[w]here, as [here], a defendant advances a claim
premised on a significant and unforeseeable development in the law that occurred after
sentencing and during the pendency of the appeal; there was no statutory right to object
…; and the record is wholly undeveloped on the issue, a limited remand is appropriate to
allow the parties to address the issue in the trial court in the first instance.” (Montes,
supra, 59 Cal.App.5th at p. 1122.) “Discretion to determine an appropriate fine amount
rests with the trial court and the court is free to consider, among other factors, any money
received by a defendant, be it in the form of prison wages or gifts. (People v. Potts
14 The $100 drug program fee imposed on count 4 included a statutory ability-to-pay
component, but defendant did not object. (Health & Saf. Code, § 11372.7, subd. (b); People v.
Sharret, supra, 191 Cal.Capp.4th at p. 864.) In People v. Gutierrez, the Court of Appeal
concluded that the defendant’s failure to object to the restitution fine forfeited his challenge to
fines and fees in their entirety, explaining, “As a practical matter, if [the defendant] chose not to
object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on
similar grounds regarding an additional $1,300 in fees.” (People v. Gutierrez (2019) 35
Cal.App.5th 1027, 1033; accord, People v. Montelongo (2020) 55 Cal.App.5th 1016, 1033–1035;
People v. Taylor (2019) 43 Cal.App.5th 390, 399–400; People v. Frandsen (2019) 33
Cal.App.5th 1126, 1153–1154.) We agree with this principle but do not apply it where, as here,
the statutory right to object applied to a minority of the total fines, fees, and assessments
imposed.
19.
(2019) 6 Cal.5th 1012, 1055–1056 [concluding trial court could lawfully impose $10,000
restitution fine despite condemned inmate’s categorical ineligibility to earn prison wages
and his receipt of only occasional small gifts of money from family, and rejecting
argument ‘that a fine is automatically invalid if a defendant is unable to pay it’].)” (Ibid.)
DISPOSITION
The narcotics offender registration requirement imposed under former Health and
Safety Code section 11590 is stricken; and the prior prison term enhancement imposed
under section 667.5, former subdivision (b), is stricken. This matter is remanded for the
limited purpose of allowing defendant to raise the issue of his ability to pay the fines,
fees, and assessments imposed. The trial court shall forward an amended abstract of
judgment to the appropriate authorities reflecting that the narcotics offender registration
requirement and the prior prison term enhancement were stricken, and reflecting
modification, if any, to the fines, fees, and assessments. In all other respects, the
judgment is affirmed.
MEEHAN, Acting P.J.
WE CONCUR:
SNAUFFER, J.
DeSANTOS, J.
20.