Filed 8/28/20 P. v. Madrigal CA4/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



 THE PEOPLE,

          Plaintiff and Respondent,                              E073231

 v.                                                              (Super.Ct.Nos. RIF1805263/
                                                                  RIF1800017)
 ROBERTO MADRIGAL,

          Defendant and Appellant.


         APPEAL from the Superior Court of Riverside County. Eric A. Keen, Judge.

Affirmed and remanded with directions.

         Michael C. Sampson, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V.

Acosta, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.




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                              MEMORANDUM OPINION

       A jury found Roberto Madrigal guilty of felony evading a peace officer, and the

trial court found he had violated his probation terms.1 The court sentenced Madrigal to

six years in prison, which included two one-year enhancements for prior prison offenses.

       On appeal, Madrigal argues a change in the law requires us to strike the two prior

prison offense enhancements. The People agree. We modify the judgment and remand for

resentencing.

       On October 25, 2017, police attempted to execute a search warrant when the target

and two others, including Madrigal, fled by car. When they tried to stop the car, Madrigal

fled on foot, stole a pickup truck, drove erratically on the freeway, and eventually ditched

the pickup in a riverbed. He then fled on foot into a wooded area.

       On January 2, 2018, the Riverside District Attorney charged Madrigal in one case

(No. RIF1800017) with felony evading a peace officer (Veh. Code, § 2800.2) and

unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) with a prior

conviction for vehicle theft (Pen. Code, § 666.5), and alleged Madrigal had two prior

prison offenses. (Pen. Code, § 667.5, subd. (b).) Madrigal pleaded guilty to both charges

and admitted the allegations for a sentence of four years, suspended pending successful

completion of three years’ probation.

       On May 3, 2018, an officer attempted to stop Madrigal, who was driving with

expired registration tags. Madrigal didn’t stop, and instead led the police on an extended

       1 We resolve this case by memorandum opinion because it raises no substantial
issue of fact or law. (California Standards of Judicial Administration, § 8.1.)

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chase. Again, Madrigal eventually ditched the car in a riverbed and fled on foot into a

wooded area.

       On December 12, 2018, the Riverside District Attorney filed a felony complaint in

a second case (No. RIF1805263) charging Madrigal with felony evading a peace officer

(Veh. Code, § 2800.2) and driving without a license (Veh. Code, § 12500, subd. (a)).

They also filed a petition seeking to have the court find, on the basis of these charges,

that Madrigal had violated his probation. They later dropped the driving without a license

charge, and added allegations that Madrigal had three prior prison offenses.

       On April 18, 2019, the court found Madrigal had violated his probation. Later, in

the second case, a jury found him guilty of felony evading a peace officer and the court

found the three prison prior allegations true. The court designated the sentence for the

felony evading a peace officer conviction in the second case as the principal term. It

sentenced Madrigal to the upper term of three years for that conviction and enhanced the

sentence by two years for two of the three prison priors. The court struck the final prison

prior enhancement in the interest of justice. It designated the vehicle theft conviction in

the first case as the subordinate term and sentenced him to one year, which is one-third of

the midterm for that conviction. It found the two offenses did not arise from the same act

or omission, so Penal Code section 654 did not bar punishment for both, and imposed a

two-year concurrent term for the felony evading a peace officer conviction in that case.

This added up to a total aggregate term of six years.




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       Madrigal timely appealed from both the contested probation violation hearing and

the final judgment of conviction. He argues Senate Bill No. 136 requires all his one-year

prison prior enhancements be stricken. The People concede, and we agree.

       In October 2019, the Legislature enacted Senate Bill No. 136, which amended

Penal Code section 667.5, subdivision (b). (2019-2020 Reg. Sess.) “Prior to this

amendment, the statute provided for a one-year enhancement for each prior separate

prison term, unless the defendant remained free from both prison custody and the

commission of a new felony for a five-year period after discharge. [Citations.] After the

amendment, ‘a one-year prior prison term enhancement will only apply if a defendant

served a prior prison term for a sexually violent offense as defined in Welfare and

Institutions Code section 6600, subdivision (b).’ ” (People v. Gastelum (2020) 45

Cal.App.5th 757, 772; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341 (Lopez).)

The amended statute became effective January 1, 2020. (Lopez, at p. 341; see Cal. Const.,

art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) It is undisputed Madrigal was never

convicted of a sexually violent offense, so the trial court can no longer impose a one-year

enhancement for either of his prior prison terms.

       Madrigal’s conviction was not final as of the effective date of this change. (See

People v. Vieira (2005) 35 Cal.4th 264, 306 [“ ‘[F]or the purpose of determining

retroactive application of an amendment to a criminal statute, a judgment is not final until

the time for petitioning for a writ of certiorari in the United States Supreme Court has

passed.’ ”].) Because Madrigal’s conviction is not yet final, and because the amended



                                             4
statute leads to a reduced sentence, the amendment to Penal Code section 667.5,

subdivision (b), applies retroactively. (People v. Jennings (2019) 42 Cal.App.5th 664,

681-682; Lopez, supra, 42 Cal.App.5th at p. 341; see generally In re Estrada (1965) 63

Cal.2d 740, 745.) Accordingly, the two one-year sentence enhancements must be

stricken.

       In general, when an error affects part of a sentence, we must remand for a full

resentencing on all counts and allegations, unless the court already imposed the

maximum allowable term. (People v. Buycks (2018) 5 Cal.5th 857, 893, 896, fn. 15.) The

trial court imposed the maximum possible sentence in the second case (No. RIF1805263).

It also imposed one-third the midterm for the subordinate vehicle theft conviction in the

first case (No. RIF1800017), which is the maximum allowable sentence for a consecutive

subordinate term. (Pen. Code, § 1170.1, subd. (a).) However, it chose to impose the two-

year term for evading a peace officer conviction in the second case concurrently rather

than consecutively. The decision whether to impose a concurrent term or a consecutive

term is within the discretion of the sentencing court, so the trial court may reconsider

Madrigal’s overall sentence on remand. (Pen. Code, § 669; People v. Bradford (1976) 17

Cal.3d 8, 20.) On remand for resentencing a trial court is “[n]ot limited to merely striking

illegal portions” of a sentence but “may reconsider all sentencing choices,” “because an

aggregate prison term is not a series of separate independent terms, but one term made up

of interdependent components.” (See People v. Hill (1986) 185 Cal.App.3d 831, 834;

People v. Hubbard (2018) 27 Cal.App.5th 9, 13.)



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                                     DISPOSITION

       We modify defendant’s sentence to strike the two one-year prior prison term

enhancements imposed under Penal Code section 667.5, subdivision (b), and remand for

resentencing. In all other respects, we affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               SLOUGH
                                                                                     J.
We concur:


RAMIREZ
                       P. J.


MILLER
                          J.




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