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Name: In re Rodriguez
Case #: D078421
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/22/2021

Ameliorative amendments to Penal Code section 667.5 are not retroactive to final judgments even where the defendant is sentenced on a new offense that results in an aggregate sentence that includes the prior judgment. Defendant was sentenced in Case A to 13 years 4 months, including a one-year prior prison term enhancement under former section 667.5, subdivision (b). The conviction in Case A was affirmed on appeal and the judgment became final. In Case B, in a separate proceeding, the court imposed a determinate prison term to run consecutively with the remaining term in Case A. The original appeal in Case B resulted in remand for resentencing. On resentencing, the trial court imposed a single aggregate sentence of 14 years 8 months for the two proceedings, in accordance with Penal Code section 1170.1, subdivision (a). This term included the one-year prior prison term enhancement imposed in Case A. The judgment was affirmed on appeal. But while that appeal was pending, the Legislature eliminated the one-year enhancement for prior prison terms in most instances. Defendant filed a petition for writ of mandate, later construed as a habeas corpus petition, asserting he should benefit from the amended statute. Held: Petition denied. Under In re Estrada (1965) 63 Cal.2d 740, in the absence of legislative intent to the contrary, the presumption of retroactivity applies only to judgments that are not final. The judgment in Case A was final before the amendments to section 667.5 went into effect. The announcement of an aggregate sentence under section 1170.1 does not reopen a prior judgment or render it nonfinal for purposes of the Estrada rule. If it did, a defendant would be incentivized to commit a new crime and obtain a potentially lower sentence. When imposing an aggregate sentence under section 1170.1, the court does not have authority to modify every aspect of the sentence. Rather, it must preserve the sentencing choices reflected in the prior judgment. [Editor’s Note: The court distinguished People v. Esquivel (2021) 11 Cal.5th 671 and People v. McKenzie (2020) 9 Cal.5th 40, which addressed judgments that had not yet become final.]