California Cases May 26, 2020: People v. Cofield

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF165828A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge.

Carolyn D. Phillips, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Gary Lee Cofield was pulled over by law enforcement driving a motorcycle that was stolen approximately six or seven weeks earlier. Defendant was arrested and charged with unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 1), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); count 2), and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3). In addition, the prosecutor alleged that defendant suffered three prior serious or violent felony convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and served seven prior prison terms (§ 667.5, former subd. (b)). Defendant was convicted by jury of unlawfully driving a vehicle without the owner's consent, receiving a stolen vehicle and possessing methamphetamine. In a bifurcated proceeding, the trial court found the prior strike and prior prison term allegations true, and found true that defendant suffered a prior conviction for violating section 10851 of the Vehicle Code for the purpose of applying the alternate sentencing scheme in section 666.5, subdivision (a).

At sentencing, the trial court struck all but two prior prison term enhancements and sentenced defendant on count 1 to a total determinate term of eight years in prison as follows: the middle term of three years, doubled to six years under the Three Strikes law, plus an additional two years for two prior prison term enhancements. On count 2, the court imposed the middle term of three years, doubled to six years, and stayed the sentence under section 654. On count 3, the court sentenced defendant to one year in jail, to be served concurrently with the sentence on count 1.

On appeal, defendant argues that his felony convictions for unlawful driving, hereinafter posttheft driving, and for receiving stolen property must be reduced to misdemeanors because the prosecutor failed to prove the vehicle's value exceeded $950.

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( People v . Page (2017) 3 Cal.5th 1175, 1187 ( Page ).) In supplemental briefing, defendant also claims that under People v . Dueñas (2019) 30 Cal.App.5th 1157 ( Dueñas ), the imposition of fines and fees he lacks the ability to pay violates his constitutional rights, and he requests that we strike the two 1-year prior prison term enhancements in accordance with Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020 (Sen. Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1, pp. 1-4 (Senate Bill No. 136 or Sen. Bill No. 136)).

The People agree that defendant is entitled to have the two prior prison term enhancements stricken, but otherwise dispute defendant's entitlement to any relief on his claims.

After briefing was complete in this case, the California Supreme Court held that Proposition 47 does not apply to the nontheft offense of posttheft driving under Vehicle Code section 10851. ( People v . Lara (2019) 6 Cal.5th 1128, 1136 ( Lara ).) In addition, after we directed the parties to file supplemental briefs addressing the Court of Appeal's then-recent decision in People v . Wehr (2019) 41 Cal.App.5th 123, 134 ( Wehr ), the California Supreme Court disapproved Wehr and held that Proposition 47 does not apply to convictions under section 496d. ( People v . Orozco (2020) 9 Cal.5th 111, 122-123 ( Orozco ).) Accordingly, we reject defendant's claims that Proposition 47 entitles him to relief from his felony convictions under Vehicle Code section 10851, subdivision (a), and Penal Code section 496d, subdivision (a).

We agree with the parties that defendant is entitled to relief from the prior prison term enhancements under Senate Bill No. 136. Therefore, we strike the two 1-year prior prison term enhancements imposed by the trial court and remand the matter under the full resentencing rule, rendering defendant's claim of error under Dueñas moot. ( People v . Buycks (2018) 5 Cal.5th 857, 893 & 896, fn. 15; People v . Lopez (2019) 42 Cal.App.5th 337, 342.) Finally, on our own motion, we order the trial court to correct the clerical errors in the abstract of judgment identified in part IV. of the Discussion.

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Except as modified, the judgment is affirmed.

I. Prosecution Case

Victim Charles W. purchased a new Kawasaki motorcycle in 1982 for approximately $10,500. In mid-August 2016, Charles was informed by a crew preparing his mother's residence for an estate sale that the motorcycle, which Charles kept stored under a cover in the carport and intended to include in the estate sale, was missing, along with other items. Charles had not ridden the motorcycle in several years, but he testified that other than a presumably dead battery from sitting idle so long, the motorcycle was in running order, the ignition was intact, and the windshield was not broken.

One night in early October 2016, defendant crossed paths with a sheriff's deputy while riding a motorcycle. After the deputy checked the plates and discovered the motorcycle was reported stolen, he followed defendant and, along with a second deputy on patrol, conducted a vehicle stop. As defendant walked backward toward the deputies as directed, he stated, "'I was just borrowing this bike from my brother.'" He then commented he knew the registration tags were bad. During the patdown search, deputies recovered a baggie of methamphetamine from defendant's pocket.

In speaking with a deputy, defendant subsequently changed his story several times. He stated he got the motorcycle from his nephew, but he was not forthcoming regarding his nephew's address or phone number. He also stated he did not know the motorcycle was stolen, although the deputy questioning him had not provided him with such information. Defendant later stated he purchased the motorcycle and the bill of sale

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might be at his house or his nephew's house. However, he did not mention anyone named Stephen J. or the purchase amount.

At the time defendant was pulled over, the motorcycle was missing its windshield and the ignition had been "punched," which occurs when part of the ignition is removed, leaving a big hole that allows the vehicle to be started with pliers, a knife, a screwdriver or other similar tool. Defendant stated that his nephew did not have a key for the motorcycle.

The victim testified that the motorcycle was returned to him, and he traded it to the man restoring his classic truck for labor costs, which he valued at between $2,000 and $2,500.

II. Defense Case

Defendant's girlfriend, G.W., testified that he brought the motorcycle home on a truck approximately one week prior to his arrest. The motorcycle did not work and defendant spent some time working on it. G.W. noticed that the ignition was "scarred up from different keys," but she did not "really pay attention." G.W. also testified that when defendant brought the motorcycle home, he handed her a bill of sale signed by himself and Stephen J., whom she did not know and did not meet until after defendant's arrest. She gave the bill of sale to defendant's prior attorney and did not receive it back.

Stephen J. testified that he did not know defendant, but defendant's nephew arranged for them to meet and Stephen sold defendant the motorcycle for $500. Stephen denied stealing the motorcycle. He stated that Charles W., whom he asserted had passed away, gave his girlfriend the motorcycle in exchange for her housecleaning services and that Charles provided a bill of sale for the motorcycle. Stephen no longer had the bill of

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sale and he testified he believed it was in storage with the rest of his property, which he lost at auction while he was in custody. Stephen denied putting a current registration tag on the motorcycle and said he told defendant the motorcycle needed to be registered. Stephen also denied the ignition was punched and explained that because the tumblers in the ignition were broken, any key would start the motorcycle.

I. Applicability of Proposition 47 to Posttheft Driving and Receiving Stolen Vehicle Convictions

A. Proposition 47

"Proposition 47 was passed by voters at the November 4, 2014, General Election, and took effect the following day. The measure's stated purpose was 'to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment,' while also ensuring 'that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.' (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70 (Voter Information Guide).) To these ends, Proposition 47 redefined several common theft- and drug-related felonies as either misdemeanors or felonies, depending on the offender's criminal history. The redefined offenses include: shoplifting of property worth $950 or less (Pen. Code, § 459.5, subd. (a)); forgery of instruments worth $950 or less (Pen. Code, § 473, subd. (b)); fraud involving financial instruments worth $950 or less (Pen. Code, § 476a, subd. (b)); theft of, or receiving, property worth $950 or less (Pen. Code, §§ 490.2, subd. (a), 496, subd. (a)); petty theft with a prior theft-related conviction (Pen. Code, § 666, subd. (a)); and possession of a controlled substance (Health & Saf. Code, §§ 11350, subd. (a), 11377, subd. (a))." ( People v . DeHoyos (2018) 4 Cal.5th 594, 597-598; accord, People v . Martinez (2018) 4 Cal.5th 647, 651-652.)

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Proposition 47 provided for prospective changes to the law and for retrospective relief in the form of a petitioning process for those convicted and serving final sentences, or those who completed their sentences, prior to the measure's passage. (§ 1170.18, subds. (a), (f); People v . DeHoyos , supra , 4 Cal.5th at p. 598; People v . Martinez , supra , 4 Cal.5th at p. 651.) The crimes in this case were committed after Proposition 47 was enacted and, therefore, we are concerned here with the prospective changes effected by the law. ( Lara , supra , 6 Cal.5th at p. 1135; People v . Gutierrez (2018) 20 Cal.App.5th 847, 855.)

B. Conviction for Posttheft Driving Under Vehicle Code Section 10851

Defendant claims that his conviction for posttheft driving falls within the purview of Proposition 47, requiring the prosecutor to prove the value of the motorcycle. He argues that the trial court erred in failing to instruct the jury on the element of value and that in the absence of any evidence the motorcycle was worth more than $950, his felony conviction is not supported by substantial evidence. He also argues that trial counsel rendered ineffective assistance of counsel by failing to object to the trial court's interpretation of Proposition 47, resulting in instructional error and conviction in the absence of substantial evidence. As we discuss, defendant's claim is foreclosed by the postbriefing decision in Lara .

"Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it without the owner's consent, and 'with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle .'" ( Page , supra , 3 Cal.5th at p. 1182, quoting Veh. Code, § 10851, subd. (a).) In Page , the California Supreme Court addressed the question of whether Proposition 47 applies to convictions for vehicle theft under Vehicle Code section 10851 and concluded that "obtaining an automobile worth $950 or less by theft constitutes petty theft under section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged." ( Page , supra , 3

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Cal.5th at p. 1187.) Recently, the court addressed an issue left reserved in Page ( id . at p. 1188, fn. 5), and concluded that Proposition 47 applies to all vehicle takings under the statute, regardless of whether the intent is to deprive the owner of the vehicle temporarily or permanently ( People v . Bullard (2020) 9 Cal.5th 94, 108-109).

In Lara , the California Supreme Court considered whether Proposition 47 applies to convictions for posttheft driving under Vehicle Code section 10851. ( Lara , supra , 6 Cal.5th at p. 1136.) In concluding it does not, the court explained that "only theft-based violations fall within Penal Code section 490.2, making them misdemeanors unless the vehicle stolen was worth more than $ 950[]" ( id . at pp. 1135-1136), and "'"unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete .... Therefore, a conviction under section 10851[, subdivision ](a) for posttheft driving is not a theft conviction"'" ( id . at p. 1136), and "a violation committed by posttheft driving may be charged and sentenced as a felony regardless of value[]" ( ibid ., fn. omitted).

In this case, the jury convicted defendant of posttheft driving under Vehicle Code section 10851, subdivision (a), and the decision in Lara therefore controls. Accordingly, we reject defendant's claim that Proposition 47 entitles him to relief from his felony conviction for posttheft driving absent evidence of value exceeding $950.

C. Conviction for Receiving Stolen Vehicle Under Section 496d

Defendant also claims Proposition 47 applies to his conviction for receiving a stolen vehicle under section 496d, subdivision (a), which provides, "Every person who

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buys or receives any motor vehicle, as defined in Section 415 of the Vehicle Code, any trailer, as defined in Section 630 of the Vehicle Code, any special construction equipment, as defined in Section 565 of the Vehicle Code, or any vessel, as defined in Section 21 of the Harbors and Navigation Code, that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor vehicle, trailer, special construction equipment, or vessel from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or three years or a fine of not more than ten thousand dollars ($10,000), or both, or by imprisonment in a county jail not to exceed one year or a fine of not more than one thousand dollars ($1,000), or both."

Although Proposition 47 did not amend section 496d or otherwise refer to it, in Wehr , the Court of Appeal analogized section 490.2, which was added to the Penal Code by Proposition 47, to section 496, subdivision (a), which was amended by Proposition 47, explaining, "Just as section 490.2 applies to obtaining any property by theft, section 496 applies to 'buy[ing] or receiv[ing] any property that has been stolen.' (§ 496, subd. (a), italics added.) And as Page teaches, a car qualifies as '"any property."' [Citation.] Thus, receiving a stolen car valued at no more than $950 must be treated as a misdemeanor pursuant to section 496." ( Wehr , supra , 41 Cal.App.5th at p. 131, quoting Page , supra , 3 Cal.5th at p. 1183.)

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In its recent decision in Orozco , the California Supreme Court instead distinguished Proposition 47's addition of section 490.2 to the Penal Code pertaining to theft with its amendment of existing section 496, subdivision (a), pertaining to receiving stolen property, on two bases. The court stated, "First, section 490.2 is intended to reclassify conduct previously criminalized by other offenses into the offense of petty theft. Instead of modifying the penalties for the existing grand theft statutes, section 490.2 separately defines a category of conduct called 'petty theft' that sweeps broadly to include theft of any property valued at $950 or less. [Citation.] For this reason, '"the independent clause [in section 490.2] containing the definition of petty theft stands on its own and means what it says."' [Citation.] Section 490.2 was therefore intended to function as a sweeping catchall that would capture all forms of theft, including those chargeable under [Penal Code] section 484e or Vehicle Code section 10851." ( Orozco , supra , 9 Cal.5th at p. 120.)

"Proposition 47's amendment to section 496[, subdivision ](a), by contrast, does not exhibit the same intent to reclassify conduct criminalized by section 496d." ( Orozco , supra , 9 Cal.5th at p. 120.) "Proposition 47's amendment to section 496[, subdivision ](a) did not create a new offense or purport to broadly reclassify several existing offenses, but rather reduced the punishment for a subset of an existing offense. The term 'the offense' in the amended portion plainly refers to the offense specified in the previous sentence, i.e., receipt of stolen property punished under section 496[, subdivision ](a). Thus, unlike section 490.2, the clause in section 496[, subdivision ](a) reducing punishment for receipt of stolen property valued at $950 or less does not

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'"stand[] on its own."' [Citation.] It refers exclusively to offenses punished under section 496[, subdivision ](a)." ( Ibid .)

Second, "the 'notwithstanding' clause in section 490.2 clarifies that if the statute conflicts with a preexisting statute punishing the same conduct, section 490.2 would override that other statute." ( Orozco , supra , 9 Cal.5th at p. 121.) "The absence of any 'notwithstanding' clause in section 496[, subdivision ](a) indicates that the drafters did not intend for the statute to affect conduct criminalized in other statutes, let alone reclassify conduct covered in those statutes." ( Ibid .)

The high court also rejected the reasoning of People v . Williams (2018) 23 Cal.App.5th 641, 649-650, in which the Court of Appeal concluded that receiving a stolen vehicle under section 496d qualifies as a theft offense under section 490.2. ( Orozco , supra , 9 Cal.5th at pp. 121-122.) The court explained that receiving stolen property is not a theft offense: it does not include the elements of "'taking with intent ... to permanently deprive the owner of its possession[]'" as does theft; "[b]ecause a 'theft conviction operates as a bar to a receiving conviction' [citation], it is difficult to understand how receiving stolen property could amount to theft[]"; and "interpreting receiving stolen property to be a form of a theft offense would render part of Proposition 47 superfluous." ( Id . at pp. 121-122.)

In light of the decision in Orozco , we reject defendant's claim that Proposition 47 entitles him to relief from his felony conviction for possession of stolen property under section 496d, subdivision (a), absent evidence of value exceeding $950.

D. Equal Protection Claim

As well, we reject defendant's claim that foreclosing him from relief under Proposition 47 would violate equal protection principles.

1. Posttheft Driving Conviction

"The concept of equal treatment under the laws means that persons similarly situated regarding the legitimate purpose of the law should receive like treatment.

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[Citation.] '"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged."'" ( People v . Morales (2016) 63 Cal.4th 399, 408; accord, In re C . B . (2018) 6 Cal.5th 118, 134; People v . Valencia (2017) 3 Cal.5th 347, 376; Briggs v . Brown (2017) 3 Cal.5th 808, 842.) Moreover, "neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor's discretion in charging under one such statute and not the other, violates equal protection principles." ( People v . Wilkinson (2004) 33 Cal.4th 821, 838, citing United States v . Batchelder (1979) 442 U.S. 114, 124-125.)

Proposition 47 applies to certain theft- and drug-related felonies ( People v . Colbert (2019) 6 Cal.5th 596, 598; People v . DeHoyos , supra , 4 Cal.5th at p. 597), and the California Supreme Court has determined that posttheft driving is not a theft offense ( Lara , supra , 6 Cal.5th at p. 1136). The holding of Lara therefore forecloses defendant's claim at the first step: demonstrating that he is similarly situated to those convicted of theft- and drug-related offenses, which Proposition 47 is, by its terms, directed.

2. Conviction for Receiving Stolen Motorcycle

Defendant fares no better with respect to receiving a stolen vehicle under section 496d. The fact that section 496 and section 496d both criminalize receipt of stolen property is, in and of itself, insufficient to establish an equal protection violation. As previously stated, "neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor's discretion in charging under one such statute and not the other, violates equal protection principles." ( People v . Wilkinson , supra , 33 Cal.4th at p. 838.) "[N]umerous factors properly may enter into a prosecutor's decision to charge under one statute and not another, such as a defendant's background and the severity of the crime, and so long as there is no showing that a

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defendant 'has been singled out deliberately for prosecution on the basis of some invidious criterion,' that is, "'one that is arbitrary and thus unjustified because it bears no rational relationship to legitimate law enforcement interests[,]"' the defendant cannot make out an equal protection violation." ( Id . at pp. 838-839, quoting Manduley v . Superior Court (2002) 27 Cal.4th 537, 568-569.)

Section 496d was added to the Penal Code effective January 1, 1999. (Assem. Bill No. 2390, approved by Governor, Sept. 21, 1998 (1997-1998 Reg. Sess.) ch. 710, § 1.) The bill's author stated, "'[T]his proposal would add a section to the Penal Code to encompass only motor vehicles related to the receiving of stolen property. Existing law provides penalties for the receiving of stolen property, but is not specific to vehicle theft. This proposal would allow persons convicted of this section to be identified along with vehicle thieves for the purposes of establishing priors, for statistical purposes and/or to target those persons involved in vehicle theft.'" (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998 [arguments in support].) Further, the "'proposal would provide additional tools to law enforcement for utilization in combating vehicle theft and prosecuting vehicle thieves. Incarcerating vehicle thieves provides safer streets and saves Californians millions of dollars. These proposals target persons involved in the business of vehicle theft and would identify persons having prior felony convictions for the receiving of stolen vehicles for enhanced sentences.'" ( Ibid .)

Given the stated purposes underlying the addition of section 496d to the Penal Code, the voters could have reasonably determined that in targeting vehicle thieves and those involved in the business of vehicle theft (for example, those involved in the

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business of stripping stolen vehicles for their parts), the statute criminalized more serious conduct than the petty theft and petty theft-related conduct at which Proposition 47 was directed. ( People v . Bussey (2018) 24 Cal.App.5th 1056, 1064, review granted Sept. 12, 2018, S250152.) This view is bolstered by the California Supreme Court's observation in Orozco that its construction of Proposition 47 works "no absurdity because the electorate plausibly could have chosen to punish receipt of stolen vehicles more severely than vehicle theft or receipt of other types of stolen property. For example, the electorate could have concluded that stolen vehicles, unlike other items of stolen property, are often dismantled and sold for parts on the secondary market, which can raise their worth above retail value." ( Orozco , supra , 9 Cal.5th at p. 122.)

Additionally, the voters could have reasonably determined that given the modern market value of most motor vehicles, trailers, construction equipment and vessels, including section 496d within the scope of Proposition 47 would do little to advance the initiative's stated goal "to reduce the number of prisoners serving sentences for nonviolent crimes, both to save money and to shift prison spending toward more serious offenses." ( People v . Romanowski (2017) 2 Cal.5th 903, 907.) As the Court of Appeal in People v . Varner explained, "[T]he electorate could consider that only an insignificant number of persons would be prosecuted under section 496d for a vehicle valued under $950. Most would be prosecuted under section 496, subdivision (a) if the 'interests of justice' warranted conviction under that section. Moreover, the electorate could reasonably choose to include section 496, subdivision (a) violations but exclude, for now, violations of section 496d." ( People v . Varner (2016) 3 Cal.App.5th 360, 370; see People v . Bussey , supra , 24 Cal.App.5th at p. 1064, review granted.)

Another rational basis was discussed by the Court of Appeal in People v . Acosta (2015) 242 Cal.App.4th 521. In that case, the defendant was convicted of attempted second degree vehicle burglary (§§ 664, 459) and he unsuccessfully petitioned the trial court to reduce his felony conviction to a misdemeanor under Proposition 47. ( People v .

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Acosta , supra , at pp. 523-524.) The court rejected the defendant's arguments that sections 490.2 and 459.5, the misdemeanor shoplifting statutes enacted by Proposition 47, applied to his burglary conviction. ( People v . Acosta , supra , at pp. 526-527.) It also rejected the defendant's equal protection argument, stating, "We have no difficulty concluding that the electorate could rationally extend misdemeanor punishment to some nonviolent offenses but not to others, as a means of testing whether Proposition 47 has a positive or negative impact on the criminal justice system. 'Nothing compels the state "to choose between attacking every aspect of a problem or not attacking the problem at all." [Citation.] Far from having to "solve all related ills at once" [citation], the Legislature has "broad discretion" to proceed in an incremental and uneven manner without necessarily engaging in arbitrary and unlawful discrimination. [Citations.]'" ( Id . at pp. 527-528; accord, People v . Bussey , supra , 24 Cal.App.5th at p. 1064, review granted.)

It bears repeating that defendant must show the absence of any rational reason for the allegedly differential treatment. ( People v . Chatman , supra , 4 Cal.5th at p. 289.) Even if we assume for the sake of argument that defendant has demonstrated those convicted under section 496d are similarly situated to those convicted under section 496, we have identified several rational bases for treating receiving stolen vehicles under section 496d differently from receiving other stolen property under section 496, foreclosing defendant's equal protection challenge.

II. Senate Bill No. 136

As previously set forth, the trial court imposed two 1-year prior prison term enhancements. (§ 667.5, former subd. (b).) In supplemental briefing, defendant requests that the enhancements be stricken in light of Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020.

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

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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), 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).

In accordance with the California Supreme Court's decision in In re Estrada (1965) 63 Cal.2d 740, 744, "'"[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].'" ( Lara , supra , 6 Cal.5th at p. 1134, quoting People v . DeHoyos , supra , 4 Cal.5th at p. 600.) The parties agree that Senate Bill No. 136 is retroactive under Estrada and, therefore, the amendment to section 667.5, subdivision (b), applies in this case.

The parties also agree that none of defendant's prior convictions is a qualifying offense under section 667.5, subdivision (b), as amended. We accept the People's concession on both points and order the two 1-year prior prison term enhancements stricken.

The parties disagree over whether the matter requires remand for resentencing, but contrary to their representation that the trial court imposed the upper term of three years, the court selected the middle term of three years under section 666.5, subdivision (a). Because the court exercised discretion in selecting the middle term, remand for resentencing is appropriate. ( People v . Buycks , supra , 5 Cal.5th at pp. 893 & 896, fn. 15; People v . Lopez , supra , 42 Cal.App.5th at p. 342.)

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III. Challenge to Imposition of Fees and Fines Under Dueñas

Next, defendant seeks relief in accordance with the Court of Appeal's decision in Dueñas . Citing due process and equal protection principles, the court held in Dueñas that the fees assessed pursuant to Government Code section 70373 and Penal Code section 1465.8 may be "imposed only on those with the means to pay them" ( Dueñas , supra , 30 Cal.App.5th at pp. 1168-1169), and "that although the trial court is required by Penal Code section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay[]" ( id . at p. 1172; accord, People v . Castellano (2019) 33 Cal.App.5th 485, 489-490; contra, People v . Allen (2019) 41 Cal.App.5th 312, 325-330 [rejecting the defendant's Dueñas -based due process claim and her equal protection claim]; People v . Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946 [rejecting Dueñas's due process analysis]; People v . Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis and concluding constitutional challenge to fines, fees and assessments should be made under the 8th Amend.'s excessive fines clause]). Relying on the holding in Dueñas , defendant claims the fees and fines imposed by the trial court in this case must be stayed until and unless the People prove he has the ability to pay them.

We need not reach this claim. Our resolution of defendant's claim for relief under Senate Bill No. 136 requires remand under the full resentencing rule, as set forth in the preceding section, and, therefore, defendant may, if he so chooses, raise this issue in the trial court in the first instance.

IV. Error in Abstract of Judgment

Finally, we have the authority to correct clerical errors on our own motion. (§ 1260; People v . Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705; People v . Amaya (2015) 239 Cal.App.4th 379, 385.) The abstract of judgment in this case reflects that defendant was convicted in counts 1 and 2 of violating

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section 666.5, subdivision (a), which is the alternative sentencing scheme that was applied in this case. ( People v . Demara (1995) 41 Cal.App.4th 448, 455 [section 666.5 "is an elevated or alternate sentencing scheme which provides a greater base term for certain recidivists"]; accord, People v . Lee (2017) 16 Cal.App.5th 861, 869-870.) Additionally, count 1 is described as vehicle theft rather than posttheft driving. The trial court shall, in the course of issuing an amended abstract of judgment following resentencing, correct these clerical errors to reflect that defendant was convicted of posttheft driving in violation of Vehicle Code section 10851, subdivision (a), and receiving a stolen vehicle in violation of Penal Code section 496d, subdivision (a).

Pursuant to Senate Bill No. 136, the two prior prison term enhancements imposed under section 667.5, former subdivision (b), are stricken and this matter is remanded for resentencing. Following resentencing, the trial court shall issue an amended abstract of judgment that includes correction of the clerical errors concerning counts 1 and 2, discussed in part IV. of the Discussion, and shall forward the amended abstract of judgment to the appropriate authorities. Except as modified, the judgment is affirmed.

MEEHAN, P.J.

WE CONCUR:

FRANSON, Acting P.J.

SNAUFFER, J.