People v. Lopez, F075765

• Court: California Court of Appeals
• Writing for the Court: SNAUFFER, J.
• Citation: 42 Cal.App.5th 337,254 Cal.Rptr.3d 883
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Carlos LOPEZ, Defendant and Appellant.
• Docket Number: F075765
• Decision Date: 20 November 2019

42 Cal.App.5th 337
254 Cal.Rptr.3d 883

The PEOPLE, Plaintiff and Respondent,
v.
Jose Carlos LOPEZ, Defendant and Appellant.

F075765

Court of Appeal, Fifth District, California.

Filed November 20, 2019

Certified for Partial Publication.^*

Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SNAUFFER, J.

42 Cal.App.5th 339

In 2017, a jury convicted Jose Carlos Lopez of possession of a controlled substance (heroin) for sale ( Health & Saf. Code, § 11351 ). The trial court sentenced Lopez to the upper term of eight years, enhanced by four years based on four prior prison terms ( Pen. Code, § 667.5, subd. (b) ).¹ Lopez's sentence was further enhanced by three years by Health and Safety Code section 11370.2. In a companion case, the court imposed a one-third consecutive term of 32 months for Lopez's 2015 conviction for transporting narcotics (heroin) for sale ( Health & Saf. Code, § 11352, subd. (a) ). Lopez received an aggregate prison term of 17 years eight months.

Lopez contends the trial court abused its discretion in permitting the jury to hear about his 2015 conviction for transporting heroin for sale. He also claims the court abused its discretion when it rejected a chain of custody argument and permitted the jury to hear about the heroin seized in this matter and tested by a crime laboratory. We reject these claims. However, we agree with the parties that Lopez's three-year enhancement pursuant to Health and Safety Code section 11370.2 must be

254 Cal.Rptr.3d 885

stricken because it is inapplicable in this case. We also agree with the parties that Senate Bill No. 136 (2019-2020 Reg. Sess.; Senate Bill 136), which the Governor recently signed, retroactively applies to Lopez. Senate Bill 136 amends the circumstances under which a one-year sentence enhancement may be imposed under section 667.5, subdivision (b). Under the new law, none of Lopez's four prior prison terms qualify for this enhancement. We strike the enhancements under section 667.5, subdivision (b), and Health and Safety Code section 11370.2, but otherwise affirm the judgment.

BACKGROUND

We summarize the material trial facts. We provide additional facts later in this opinion when relevant to specific issues raised on appeal.

42 Cal.App.5th 340

On January 6, 2016, a senior deputy with the Kern County Sheriff's Department, Michael Dorkin, arrested Lopez, who was wanted on an outstanding warrant. When he searched Lopez, Dorkin found a bag containing 24 bindles of suspected heroin. The total heroin, including the bag and bindles, weighed 35.9 grams. Dorkin also found three $20 bills, three $10 bills, and eleven $1 bills on Lopez (a total of $101). At the time of his arrest, Lopez appeared to be under the influence of heroin. Later testing confirmed that at least five of the bindles recovered from Lopez contained heroin. The other 19 bindles were not tested because their collective weight was insufficient to reach the next criminal enhancement.

DISCUSSION

As an initial matter, Lopez has filed a request for judicial notice pursuant to rule 8.252 of the California Rules of Court, and Evidence Code sections 452 and 459. We were asked to take judicial notice of the following: (1) a 1999 superior court order and related documents in San Diego County Superior Court case No. SF133532; (2) a 2014 superior court order and related documents from the same matter in number 1; and (3) a 2017 superior court order in San Diego County Superior Court case No. SCD107189. Respondent does not oppose this request.

We grant Lopez's request for judicial notice.

I.-II.^** [NOT CERTIFIED FOR PUBLICATION]

III. Lopez's Four Prior Prison Enhancements Must Be Stricken.

A defendant may receive an additional sentence enhancement under section 667.5 if certain conditions are met. ( People v. Buycks (2018) 5 Cal.5th 857, 889, 236 Cal.Rptr.3d 84, 422 P.3d 531 ( Buycks ).) Under current law, a one-year enhancement is imposed for each prior separate prison term or county jail term imposed under section 1170, subdivision (h).⁶ ( § 667.5, subd. (b).)

On October 8, 2019, the Governor signed Senate Bill 136 into law. This amends section 667.5, subdivision (b). Under this amendment, a one-year prior prison term enhancement will only apply if a defendant served a prior

42 Cal.App.5th 341

prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.)

Prior to the Governor signing Senate Bill 136, the parties had briefed whether

254 Cal.Rptr.3d 886

or not Lopez's four prior prison term enhancements should be stricken. That briefing did not include Senate Bill 136. Oral arguments occurred in this matter the day after the...