California Cases July 15, 2021: People v. Pinedo

Case Description

Certified for Partial Publication.

Jennifer Mouzis, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, Acting P.J.

[280 Cal.Rptr.3d 898]

[66 Cal.App.5th 610]

INTRODUCTION

In 2018, defendant Pete Pinedo was arrested following a search of his residence by probation officers. He was charged with two felonies, possession of a firearm by a felon ( Pen. Code, § 29800, subd. (a)(1) ; count 1) and possession of ammunition by a felon (§ 30305, subd. (a)(1); count 2), and two misdemeanors, being under the influence of a controlled substance (

[66 Cal.App.5th 611]

Health & Saf. Code, § 11550, subd. (a) ; count 3) and possession of drug paraphernalia ( Health & Saf. Code, § 11364 ; count 4). The charging document also alleged he served two prior prison terms within the meaning of section 667.5, former subdivision (b).

Defendant was convicted by jury of all four counts. In a bifurcated proceeding, the trial court found one prior prison term allegation true and the other allegation not true. The court also found that defendant violated parole in a separate case, Kern Superior Court case No. BV009363A.

The trial court sentenced defendant to the upper term of three years on count 1 plus one year for the prior prison term enhancement, for a total determinate term of four years in prison. The court also imposed the upper term of three years on count 2, stayed under section 654 ; a concurrent one-year jail term on count 3; and a 180-day jail term on count 4, with credit for time served. The court also ordered defendant to register as a narcotics offender under former Health and Safety Code section 11590 and imposed a minimum restitution fine of $300 under section 1202.4, subdivision (b)(1) ; a parole revocation restitution fine of $300 under section 1202.45, suspended; a total court operations assessment of $160 under section 1465.8, subdivision (a)(1) ; a total court facilities assessment of $120 under Government Code section 70373, subdivision (a)(1) ; a total crime lab fee of $100 under Health and Safety Code section 11372.5 with a total penalty assessment of $310; and a drug program fee of $100 under Health and Safety Code section 11372.7 with a penalty assessment of $310.

Defendant raises four claims on appeal. He requests we conduct an independent review of the proceedings related to his Pitchess motion and the trial court's determination that Deputy Probation Officer Ortiz's personnel file contained no information subject to disclosure, and he seeks relief from the fines, fees, and assessments imposed in this case without an ability-to-pay hearing, pursuant to the Court of Appeal's postsentencing decision in People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ). In supplemental briefing and in reliance on the Estrada presumption, defendant requests relief from the narcotics offender registration requirement under Assembly Bill No. 1261 and the prior prison term enhancement under Senate Bill No. 136, both of which were enacted after he was sentenced.

[280 Cal.Rptr.3d 899]

The People do not object to our independent review of the Pitchess proceedings and they concede defendant is entitled to have the prior prison

[66 Cal.App.5th 612]

term enhancement stricken under Senate Bill No. 136. However, they contend defendant is not entitled to relief from the narcotics offender registration requirement because repeal of former Health and Safety Code section 11590 under Assembly Bill No. 1261 operates prospectively rather than retroactively under Estrada , and they dispute his entitlement to relief from the fines, fees, and assessments imposed.

We find no error with respect to either the Pitchess proceedings or the trial court's determination that there is no discoverable information in Officer Ortiz's personnel file. However, we conclude that defendant is entitled to relief from the narcotics offender registration requirement and the prior prison term enhancement under Assembly Bill No. 1261 and Senate Bill No. 136; and in accordance with our recent decision in People v. Montes (2021) 59 Cal.App.5th 1107, 273 Cal.Rptr.3d 915 ( Montes ), defendant is entitled to a remand so he may raise the issue of his ability to pay the fines, fees and assessments. The judgment is otherwise affirmed.

DISCUSSION

I. Independent Review of Pitchess Proceedings

II. Narcotics Offender Registration Requirement

A. Background

Defendant was convicted in 2018 of being under the influence of a controlled substance, in violation of Health and Safety Code section 11550, subdivision (a), a misdemeanor offense. As a result, he was subject to the narcotics offender registration requirement under former Health and Safety Code section 11590, which provided that a person convicted of certain qualifying offenses, including section 11550, "or any person who is discharged or paroled from a penal institution where he or she was confined because of the commission of any such offense, or any person who is convicted in any other state of any offense which, if committed or attempted in this state, would have been punishable as one or more of the [qualifying] offenses, shall within 30 days of his or her coming into any county or city, or city and county in which he or she resides or is temporarily domiciled for that length of time, register with the chief of police of the city in which he or she resides or the sheriff of the county if he or she resides in an unincorporated area." The failure to register in compliance with former Health and Safety Code section 11590 was punishable as a misdemeanor. (Former Health & Saf. Code, § 11594.)

[66 Cal.App.5th 613]

Relevant to this appeal, effective January 1, 2020, Assembly Bill No. 1261 repealed former Health and Safety Code sections 11590 and 11594, and reenacted Health and Safety Code section 11594 to terminate the registration requirement. (Stats. 2019, ch. 580, §§ 1, 7 – 8, pp. 1, 3.)

Defendant was sentenced on November 8, 2018, and the parties do not dispute that his conviction is not yet final. ( People v. Esquivel (2021) 11 Cal.5th 671, 676, 279 Cal.Rptr.3d 659, 487 P.3d 974 ( Esquivel );

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People v. McKenzie (2020) 9 Cal.5th 40, 46, 259 Cal.Rptr.3d 224, 459 P.3d 25 ( McKenzie ).) In accordance with Estrada , defendant claims he is entitled to have the narcotics registration requirement stricken under Assembly Bill No. 1261. The People disagree. They argue that the "registration [requirement] is not a ‘punishment,’ and therefore is not subject to the retroactivity principles that apply to changes in the law which ameliorate punishment." Further, they contend that because "[n]othing in the legislative history of the repeal says one way or the other that it was intended to operate retroactively," "it should be read to apply prospectively under ordinary rules of construction."

We reject the People's position and conclude that defendant is entitled to relief from the registration requirement.

B. Legal Standard

"We review de novo questions of statutory construction. [Citation.] In doing so, ‘ "our fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ " ’ [Citation.] We begin with the text, ‘giv[ing] the words their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute's purpose [citation].’ [Citation.] ‘If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls.’ " ( People v. Blackburn (2015) 61 Cal.4th 1113, 1123, 191 Cal.Rptr.3d 458, 354 P.3d 268.)

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"Generally, statutes are presumed to apply only prospectively." ( People v. Frahs (2020) 9 Cal.5th 618, 627, 264 Cal.Rptr.3d 292, 466 P.3d 844 ( Frahs ), citing People v. Lara (2018) 4 Cal.5th 299, 307, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ); § 3.) "However, this presumption is a canon of statutory interpretation rather than a constitutional mandate. [Citation.] Accordingly, ‘the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication.’ [Citation.] Courts look to the Legislature's intent in order to determine if a law is meant to apply retroactively." ( Frahs, supra , at p. 627, 264 Cal.Rptr.3d 292, 466 P.3d 844, citing & quoting Lara, supra , at p. 307, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

Pursuant to the California Supreme Court's decision in Estrada , "[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases not yet final on appeal at the time of the legislation's effective date. (See Estrada, supra , 63 Cal.2d at pp. 744–745, 48 Cal.Rptr. 172, 408 P.2d 948.) This presumption ‘rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ " ( People v. Gentile (2020) 10 Cal.5th 830, 852, 272 Cal.Rptr.3d 814, 477 P.3d 539 ( Gentile ); accord, Frahs, supra , 9 Cal.5th at p. 624, 264 Cal.Rptr.3d 292, 466 P.3d 844 ; McKenzie, supra , 9 Cal.5th at pp. 44–45, 259 Cal.Rptr.3d 224, 459 P.3d 25 ;

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Lara, supra , 4 Cal.5th at pp. 307–308, 228 Cal.Rptr.3d 394, 410 P.3d 22.) Relevant here, the Estrada presumption applies " ‘[a fortiorari] when criminal sanctions have been completely repealed before a criminal conviction becomes final.’ " ( Gentile, supra , at p. 854, 272 Cal.Rptr.3d 814, 477 P.3d 539, quoting People v. Rossi (1976) 18 Cal.3d 295, 301, 134 Cal.Rptr. 64, 555 P.2d 1313 ; accord, McKenzie, supra , at p. 45, 259 Cal.Rptr.3d 224, 459 P.3d 25 ; People v. Collins (1978) 21 Cal.3d 208, 212–213, 145 Cal.Rptr. 686, 577 P.2d 1026.)

C. Analysis

1. Estrada Presumption Applies

To support their position that defendant is not entitled to relief from the narcotics offender registration requirement under Estrada , the People cite Alva , Castellanos , and Luisa Z. for the proposition that the registration requirement is not punishment. ( In re Alva (2004) 33 Cal.4th 254, 280, 14 Cal.Rptr.3d 811, 92 P.3d 311 ( Alva ); People v. Castellanos (1999) 21 Cal.4th 785, 799, 805, 88 Cal.Rptr.2d 346, 982 P.2d 211 ( Castellanos ); Luisa Z., supra , 78 Cal.App.4th at p. 983, 93 Cal.Rptr.2d 231.) However, those cases analyzed whether the relevant registration requirements constituted punishment within the confines of specific constitutional challenges, and we do not find them informative in this

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context. ( Alva, supra , at p. 290, 14 Cal.Rptr.3d 811, 92 P.3d 311 [mandatory lifetime sex offender registration not punishment under cruel and/or unusual punishment clauses]; Castellanos, supra , at p. 796, 88 Cal.Rptr.2d 346, 982 P.2d 211 [sex offender registration requirement not punishment for purposes of ex post facto analysis]; Luisa Z., supra , at p. 983, 93 Cal.Rptr.2d 231 [narcotics offender registration requirement not punishment for purposes of ex post facto analysis]; see People v. Mosley (2015) 60 Cal.4th 1044, 1062–1069, 185 Cal.Rptr.3d 251, 344 P.3d 788 [sex offender residency restriction not a penalty for a crime within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 ( Apprendi )]; Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888–889, fn. 10, 183 Cal.Rptr.3d 96, 341 P.3d 1075 [sex offender registration not punishment] ( Johnson ); In re Jorge G. (2004) 117 Cal.App.4th 931, 942–943, 12 Cal.Rptr.3d 193 [gang registration requirement not punishment under Apprendi ];

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People v. Bailey (2002) 101 Cal.App.4th 238, 244, 123 Cal.Rptr.2d 729 [gang registration requirement not punishment under ex post facto clause].)

Registration requirements are consequences of qualifying criminal convictions. ( People v. Picklesimer (2010) 48 Cal.4th 330, 337–338, 106 Cal.Rptr.3d 239, 226 P.3d 348 [sex offender registration requirement a collateral consequence for purposes of habeas jurisdiction]; In re Stier (2007) 152 Cal.App.4th 63, 82–83, 61 Cal.Rptr.3d 181 [same]; People v. McClellan (1993) 6 Cal.4th 367, 375–376, 24 Cal.Rptr.2d 739, 862 P.2d 739 [sex offender registration requirement a direct consequence for purposes of plea advisement]; People v. Cotton (1991) 230 Cal.App.3d 1072, 1084, 284 Cal.Rptr. 757 [narcotics offender registration a direct consequence for purposes of plea advisement].) They are primarily regulatory, and, foundational to the People's argument, courts have concluded they do not constitute punishment as it is defined in the context of the cruel and/or unusual

[66 Cal.App.5th 616]

punishments clause, the ex post facto clause, or Apprendi. (E.g., People v. Mosley, supra , 60 Cal.4th at pp. 1062–1069, 185 Cal.Rptr.3d 251, 344 P.3d 788 ; Johnson, supra , 60 Cal.4th at pp. 888–889, fn. 10, 183 Cal.Rptr.3d 96, 341 P.3d 1075 ; Alva, supra , at p. 290, 14 Cal.Rptr.3d 811, 92 P.3d 311 ; Castellanos, supra , 21 Cal.4th at p. 796, 88 Cal.Rptr.2d 346, 982 P.2d 211 ; Luisa Z., supra , 78 Cal.App.4th at p. 983, 93 Cal.Rptr.2d 231 ; In re Jorge G., supra , 117 Cal.App.4th at pp. 942–943, 12 Cal.Rptr.3d 193 ; People v. Bailey, supra , 101 Cal.App.4th at p. 244, 123 Cal.Rptr.2d 729 ). In Luisa Z. , this court explained, " ‘Registration requirements generally are based on the assumption that persons convicted of certain offenses are more likely to repeat the crimes and that law enforcement's ability to prevent certain crimes and its ability to apprehend certain types of criminals will be improved if these repeat offenders' whereabouts are known. [Citation.] Accordingly, the Legislature has determined that sex offenders ( Pen. Code, § 290 ), narcotics offenders ([former] Health & Saf. Code, § 11590 ) and arsonists ( Pen. Code, § 457.1 ) are likely to repeat their offenses and therefore are subject to registration requirements.’ " ( Luisa Z., supra , at p. 982, 93 Cal.Rptr.2d 231 ; accord, Johnson, supra , at pp. 881–882, 183 Cal.Rptr.3d 96, 341 P.3d 1075 ; Alva, supra , at p. 265, fn. 5, 14 Cal.Rptr.3d 811, 92 P.3d 311.) Subsequent to the decision in Luisa Z. , the Legislature also determined that defendants who commit gang related crimes should be subject to a registration requirement, to "help[ ] authorities monitor the location of those associating with gangs and thereby promote[ ] the goal of protecting the public from gang-related violent crime." ( People v. Bailey, supra , at p. 244, 123 Cal.Rptr.2d 729 [ § 186.30 ].)

The People do not address application of these authorities to the reduction or elimination of registration requirements in the context of Estrada , and the California Supreme Court has made clear that the Estrada presumption applies broadly to ameliorating benefits that flow from a change in the law. ( Esquivel, supra , 11 Cal.5th at pp. 674–675, 279 Cal.Rptr.3d 659, 487 P.3d 974 ; Gentile, supra , 10 Cal.5th at p. 852, 272 Cal.Rptr.3d 814, 477 P.3d 539 ; Frahs, supra , 9 Cal.5th at pp. 631–632, 264 Cal.Rptr.3d 292, 466 P.3d 844.) Indeed, the primary focus is "whether a change in law is ameliorative" ( Esquivel, supra , at pp. 675–676, 279 Cal.Rptr.3d 659, 487 P.3d 974 ), and in

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People v. Durbin (1966) 64 Cal.2d 474, 479, 50 Cal.Rptr. 657, 413 P.2d 433, the court applied the Estrada presumption outside the context of punishment, to a statutory amendment affecting bail forfeiture. The court explained, "What was there said with regard to an amendatory statute lessening criminal punishment equally applies to the reduction or elimination of civil penalties or forfeitures. [¶] It follows that whether the forfeiture of bail is considered a civil penalty or as akin to criminal punishment , the amendment taking from the trial court the discretion to declare forfeitures in cases as the present where the defendant is physically unable to appear must be applied to all cases not final at the time the amendment became effective." ( People v. Durbin, supra , at p. 479, 50 Cal.Rptr. 657, 413 P.2d 433, italics added.)

[66 Cal.App.5th 617]

We did not locate any published decisions addressing the Estrada presumption in the context of Assembly Bill No. 1261, but a number of courts recently considered the issue in the context of Assembly Bill No. 1950, which shortened the length of probation for many offenders, and concluded the Estrada rule applies. ( People v. Lord (2021) 64 Cal.App.5th 241, 245, 278 Cal.Rptr.3d 642 ( Lord ); People v. Stewart (2021) 62 Cal.App.5th 1065, 1072–1073, 277 Cal.Rptr.3d 247, review granted June 30, 2021, S268787 ( Stewart ); People v. Sims (2021) 59 Cal.App.5th 943, 960–961, 273 Cal.Rptr.3d 792 ( Sims ); People v. Quinn (2021) 59 Cal.App.5th 874, 882–883, 273 Cal.Rptr.3d 770 ( Quinn ); People v. Burton (2020 58 Cal.App.5th Supp. 1, 14–16, 272 Cal.Rptr.3d 797 ( Burton ).) In several of those cases, the People argued, without success, that probation is not punishment and, therefore, we find the decisions informative. ( Stewart, supra , at p. 1071, 277 Cal.Rptr.3d 247, review granted; Sims, supra , at p. 958, 273 Cal.Rptr.3d 792 ; Quinn, supra , at pp. 882–883, 273 Cal.Rptr.3d 770.)

In Burton , although the People did not advance the argument that probation is not punishment, the court considered the issue, reasoning,

"[A] ‘[g]rant of probation is, of course, qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither "punishment" [citation] nor a criminal "judgment" [citation]. Instead, courts deem probation an act of clemency in lieu of punishment [citations], and its primary purpose is rehabilitative in nature [citation].’ [Citations.] [¶] But, although probation is not considered ‘punishment’ for specified purposes, the presumption of legislative intent in Estrada is not confined to only situations when jail and prison sentences are directly decreased due to new laws. A court may presume an intent to broadly apply laws even when they ‘merely [make] a reduced punishment possible. ’ ( People v. Frahs, supra , 9 Cal.5th at p. 629 [264 Cal.Rptr.3d 292, 466 P.3d 844].) The Legislature in this instance clearly contemplated that reducing the amount of time probation can last was significantly beneficial to persons on probation, and that concomitantly, being on probation for longer than a year was detrimental ‘rather than being rehabilitative.’ As previously noted, ‘a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible’ ( People v. Conley [(2016)] 63 Cal.4th [646,] 657 [203 Cal.Rptr.3d 622, 373 P.3d 435] ), not solely to changes that reduce ‘punishment’ as defined in contexts different than assessing whether Estrada is applicable." (

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Burton, supra , 58 Cal.App.5th Supp. at pp. 15–16, 272 Cal.Rptr.3d 797.)

Subsequently, the Courts of Appeal in Stewart, Sims , and Quinn agreed and rejected the People's argument that probation is not punishment within the meaning of Estrada. ( Stewart, supra , 62 Cal.App.5th at pp. 1072–1073, 277 Cal.Rptr.3d 247, review granted; Sims, supra , 59 Cal.App.5th at pp. 959–961, 273 Cal.Rptr.3d 792 ; Quinn, supra , 59 Cal.App.5th at p. 883, 273 Cal.Rptr.3d 770 ; accord, Lord, supra , 64 Cal.App.5th at p. 245, 278 Cal.Rptr.3d 642.) Sims

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explained, "[W]e do not believe the label affixed to probation—i.e., whether it is labeled punishment, rehabilitation, or some combination—is necessarily determinative of whether the Estrada presumption of retroactivity applies." ( Sims, supra , at p. 959, 273 Cal.Rptr.3d 792.) "[P]robation—though often deemed preferable to imprisonment from the perspective of a defendant—can be invasive, time-consuming, and restrictive for a probationer. A probationer ‘is in constructive custody—he is under restraint.’ [Citations.] Thus, ‘[w]hile probation is not technically a "punishment," being " ‘rehabilitative in nature’ " [citation], there is no question it is a sanction that imposes significant restrictions on the civil liberties of a defendant.’ [Citations.] By limiting the maximum duration a probationer can be subject to such restraint, Assembly Bill No. 1950 has a direct and significant ameliorative benefit for at least some probationers who otherwise would be subject to additional months or years of potentially onerous and intrusive probation conditions." ( Ibid. , fn. omitted.)

In Frahs , the California Supreme Court explained in the context of section 1001.36, a mental health diversion statute, that "the diversion statute provides a possible benefit to a class of criminal defendants," and it is "the ameliorative nature of the diversion program [that] places it squarely within the spirit of the Estrada rule." ( Frahs, supra , 9 Cal.5th at p. 631, 264 Cal.Rptr.3d 292, 466 P.3d 844.) "[I]n order to rebut Estrada 's inference of retroactivity concerning ameliorative statutes, the Legislature must ‘demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it.’ " ( Id. at p. 634, 264 Cal.Rptr.3d 292, 466 P.3d 844.) More recently, in Esquivel , the court reiterated that the focus is on the ameliorative nature of the change in the law and identified numerous contexts in which Estrada was found applicable, including civil penalties or forfeitures. ( Esquivel, supra , 11 Cal.5th at pp. 675–676, 279 Cal.Rptr.3d 659, 487 P.3d 974, citing People v. Durbin, supra , 64 Cal.2d at p. 479, 50 Cal.Rptr. 657, 413 P.2d 433.)

The narcotics offender registration requirement was not as onerous as some registration requirements, such as the lifetime sex offender registration requirement under section 290, subdivision (d). However, for a five-year period (former Health & Saf. Code, § 11594 ), the "registration requirement trigger[ed] associated statutory obligations, such as maintaining current registration and furnishing fingerprints and photographs to the Department of Justice. The registrant [was] subject to police inquiry in the event crimes similar to those for which he or she ... registered ha[d] occurred," and "[a]nyone who fail[ed] to comply with the registration requirement [was] guilty of a misdemeanor." ( Luisa Z , supra , 78 Cal.App.4th at p. 983, 93 Cal.Rptr.2d 231, citing former Health & Saf. Code §§ 11590, 11594, subd. (a).) As previously stated, registration requirements serve a primarily regulatory function and are not considered punitive within the context of the Eighth Amendment or Apprendi. Nevertheless, they impose a burden, or a sanction, on an offender as a direct result of the offender's qualifying criminal conviction. (

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People v. Mosley, supra , 60 Cal.4th at pp. 1062, 1065, 185 Cal.Rptr.3d 251, 344 P.3d 788 ; Alva, supra , 33 Cal.4th at pp. 268, 288–289, fn. 17, 14 Cal.Rptr.3d 811, 92 P.3d 311 ;

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Castellanos, supra , 21 Cal.4th at p. 796, 88 Cal.Rptr.2d 346, 982 P.2d 211 ; People v. Martinez (2004) 116 Cal.App.4th 753, 760, 10 Cal.Rptr.3d 751.) Thus, whatever label is affixed to registration requirements, when properly viewed as a burdensome consequence of conviction, legislation that either reduces or eliminates that burden clearly constitutes an ameliorative change in the law to which the Estrada presumption applies. (See People v. Durbin, supra , 64 Cal.2d at p. 479, 50 Cal.Rptr. 657, 413 P.2d 433.)

2. Assembly Bill No. 1261

Assembly Bill No. 1261 repealed Health and Safety Code sections 11590 and 11594, which codified the narcotics registration requirement, and reenacted section 11594, which now provides, " All registration requirements set forth in this article, as it read on January 1, 2019, are terminated. The statements, photographs, and fingerprints obtained pursuant to this section, as it read on January 1, 2019, are not open to inspection by the public or by any person other than a regularly employed peace or other law enforcement officer." (Italics added.) "The basis of [the California Supreme Court's] decision in Estrada was [a] quest for legislative intent" ( In re Pedro T. (1994) 8 Cal.4th 1041, 1045, 36 Cal.Rptr.2d 74, 884 P.2d 1022 ), and " ‘[the] effect of repealing a statute is "to obliterate it as completely from the records of the parliament as if it had never passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded while it was an existing law" ’ " ( People v. Rossi, supra , 18 Cal.3d at p. 301, 134 Cal.Rptr. 64, 555 P.2d 1313, quoting Spears v. County of Modoc (1894) 101 Cal. 303, 305, 35 P. 869 ).

We discern no ambiguity in this instance, and the People neither address the substance of Assembly Bill No. 1261 nor endeavor to explain how defendant remains under a legal duty to register as a narcotics offender under these circumstances. ( Luisa Z., supra , 78 Cal.App.4th at p. 984, 93 Cal.Rptr.2d 231.) The elimination of the registration requirement through repeal is clear evidence of legislative intent ( People v. Collins, supra , 21 Cal.3d at p. 213, 145 Cal.Rptr. 686, 577 P.2d 1026 ), and the People's position that defendant is not entitled to relief from the registration requirement in this case is inconsistent both with the Estrada presumption and, Estrada aside, with the plain language of the bill.

Although the plain language controls, given the People's argument that nothing in the legislative history indicates that retroactive application was intended, we point out that the express intent of Assembly Bill No. 1261 was to delete the narcotics "registration requirement and make conforming changes." (Legis. Counsel's Dig., Assembly Bill No. 1261, ch. 580, p. 1.) Moreover, as explained in an analysis of the bill:

" The philosophy behind the creation of the narcotics registry is inconsistent with the current approach to the treatment of drug offenses as demonstrated

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by recent voter-approved initiatives and legislative measures that have decreased the penalties for drug offenses and focused resources on providing treatment. In 2000, voters approved Proposition 36, which allows courts to divert non-violent defendants, probationers, and parolees charged with simple drug possession or drug use from incarceration into community-based substance abuse treatment programs. More recently, the voters approved Proposition 47 in 2014, which reduced possession of heroin, methamphetamine, and other drugs to a misdemeanor, and, in 2016, the voters approved

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Proposition 64, which permits adults 21 years of age and over to possess and grow specified amounts of cannabis for recreational use.

"In addition to these voter initiatives, the Legislature passed legislation in 2017 that limited the three-year prior-conviction sentence enhancement for people convicted of specified drug crimes, and established a pre-trial drug diversion program for many drug offenses. [See SB 180 (Mitchell, Chapter 677, Statutes of 2017), and AB 208 (Eggman, Chapter 778, Statutes of 2017.)] Taking these drug reform measures into account, the rationale for continuing drug offender registration is questionable, especially considering that law enforcement has other methods at its disposal to monitor drug offenders, including access to arrest and conviction records. " (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1261 (2019–2020 Reg. Sess.) July 10, 2019, p. 7, italics added.)

Based on the foregoing, we conclude that pursuant to the changes in the law effected by Assembly Bill No. 1261, the narcotics registration requirement set forth in former Health and Safety Code sections 11590 and 11594 is now a nullity. ( People v. Collins, supra , 21 Cal.3d at p. 213, 145 Cal.Rptr. 686, 577 P.2d 1026 ; People v. Rossi, supra , 18 Cal.3d at pp. 301–302, 134 Cal.Rptr. 64, 555 P.2d 1313.) Therefore, that portion of the trial court's oral pronouncement of judgment is stricken, and the trial court shall issue an amended abstract of judgment omitting the registration requirement.

III.–IV.

DISPOSITION

The narcotics offender registration requirement imposed under former Health and Safety Code section 11590 is stricken; and the prior prison term enhancement imposed under section 667.5, former subdivision (b), is stricken. This matter is remanded for the limited purpose of allowing defendant to raise the issue of his ability to pay the fines, fees, and

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assessments imposed. The trial court shall forward an amended abstract of judgment to the appropriate authorities reflecting that the narcotics offender registration requirement and the prior prison term enhancement were stricken, and reflecting modification, if any, to the fines, fees, and assessments. In all other respects, the judgment is affirmed.

WE CONCUR:

SNAUFFER, J.

DeSANTOS, J.