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Name: People v. Millan
Case #: D071437
District 4 DCA
Division: 1
Opinion Date: 02/13/2018

Because the amendment to Health and Safety Code section 11370.2, subdivision (c) (SB 180) applies retroactively to cases not yet final on its effective date, defendant’s case must be remanded so the trial court may strike his enhancements. Millan pleaded guilty to one count of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted having four prior drug-related convictions within the meaning of section 11370.2, subdivision (c) and other enhancements. His sentence included consecutive three-year terms on two of the section 11370.2, subdivision (c), enhancements. Though his judgment was affirmed on appeal, he filed a petition for rehearing, arguing that he should receive the benefit of SB 180 (effective January 1, 2018), which amended section 11370.2 to remove his prior drug-related offenses (violations of Health & Saf. Code, § 11379 and 11378) from the list of prior convictions that qualify a defendant for a section 11370.2, subdivision (c) enhancement. The People conceded that Millan was entitled to the benefit of the amendment. Held: Reversed and remanded for resentencing. Previously, section 11370.2, subdivision (c) provided that any person convicted of violating section 11379 shall receive a three-year enhancement for each prior felony conviction for enumerated drug-related offenses. SB 180 removed a number of offenses from the list of prior convictions that qualify a defendant for imposition of an enhancement under section 11370.2, subdivision (c), and Millan’s prior drug-related convictions no longer constitute qualifying prior convictions. SB 180 applies retroactively in Millan’s case pursuant to In re Estrada (1965) 63 Cal.2d 740 and its progeny, which held that legislative amendments that reduce the penalty for crimes (including penalty enhancements) are presumed to be retroactive to cases whose judgments are not yet final in the absence of a clear indication that the Legislature intended the benefit to apply prospectively only.

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