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Filed 10/21/20 P. v. Orozco 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

v.

ULISES OROZCO,

Defendant and Appellant.

E073737

(Super.Ct.No. INF1900456)

OPINION

APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos, 

Judge. Affirmed as modified.

Richard Schwartzberg, 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, Michael Pulos and Arlene A. 

Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
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STATEMENT OF THE CASE1

On May 13, 2019, an information charged defendant and appellant Ulises Orozco 

with violating a protective order during criminal proceedings under Penal Code2section 

166, subdivision (c)(4) (count 1); dissuading an individual from being a witness under 

section 136.1 (count 2); inflicting corporal injury on a spouse under section 273.5, 

subdivision (f)(1) (count 3); and misdemeanor battery on a spouse under section 243, 

subdivision (e)(1) (count 4). The information also alleged that defendant had suffered a 

prior conviction resulting in imprisonment under section 667.5, subdivision (b).

After a jury trial, on August 13, 2019, defendant was found guilty of counts 1, 2,

and 4. The jury deadlocked on count 3; the court declared a mistrial as to that count. The 

next day, defendant admitted as true an enhancement that he had served a prior prison 

term for infliction of corporal injury.

The trial court sentenced defendant to a total term of four years in state prison. 

The court also imposed one year for the section 667.5, subdivision (b), prison prior 

enhancement, but struck the sentence.

On September 18, 2019, defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends that “because of the enactment of Senate Bill No. 136, the 

court should order the . . . section 667.5, subdivision (b) prior-offense enhancement 

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 The underlying facts of the case are not relevant to this appeal. 

2

 All further statutory references are to the Penal Code unless otherwise indicated.
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dismissed rather than imposed and struck.” (All caps. & italics omitted.) Defendant

asserts the abstract of judgment should be corrected to show the enhancement is 

dismissed. The People agree with defendant. For the reasons set forth post, we agree 

with the parties. 

In this case, defendant admitted the truth of the prior prison term enhancement 

allegation under section 667.5, subdivision (b), based on his prior conviction of infliction 

of corporal injury under section 273.5, subdivision (a). The court imposed a one-year 

term for his prior prison allegation enhancement, but it struck the sentence. The abstract 

of judgment indicates that the enhancement was imposed, but the sentence was marked 

“PS” for “punishment struck.”

On August 14, 2019, when defendant was sentenced, trial courts had the discretion 

to impose an additional one-year enhancement for each separate prior prison term served 

by a defendant when that defendant had not remained free of prison custody for at least 

five years prior to committing the current offense. (§ 667.5, subd. (a); see People v. 

Bradley (1998) 64 Cal.App.4th 386, 392-396 [trial courts retain discretion to strike prior 

prison term enhancements in the interests of justice].)

On October 8, 2019, the Governor signed SB 136, effective January 1, 2020. SB 

136 amended Penal Code section 667.5, subdivision (b). Under SB 136, Penal Code 

section 667.5, subdivision (b), now limits one-year enhancements for prior convictions to 

cases where the prior conviction was for a sexually violent offense, as defined in 

subdivision (b) of section 6600 of the Welfare and Institutions Code. 
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Both parties agree that defendant is entitled to the benefit of the change in the law. 

(People v. Jennings (2019) 42 Cal.App.5th 664, 680-681.) In In re Estrada (1965) 63 

Cal.2d 740, the California Supreme Court held that absent evidence to the contrary, the 

Legislature intended amendments to statutes that reduce the punishment for a particular 

crime to apply to all defendants whose judgments are not yet final on the amendments’ 

operative dates. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306-308 

[discussing Estrada]; People v. Brown (2012) 54 Cal.4th 314, 323 [same].) In an 

analogous situation in which new legislation ended the statutory prohibition on a trial 

court’s ability to strike firearm enhancements under sections 12022.5 and 12022.53, 

appellate courts have held that the new statutory amendment applies retroactively to all 

nonfinal judgments. (See People v. Chavez (2018) 22 Cal.App.5th 663, 708-712; People 

v. Arredondo (2018) 21 Cal.App.5th 493, 506-507; People v. Woods (2018) 19 

Cal.App.5th 1080, 1089-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) 

Moreover, appellate courts have held that the newly founded discretionary authority to 

strike five-year enhancements under section 667, subdivision (a), is also retroactive. 

(People v. Jones (2019) 32 Cal.App.5th 267, 273; People v. Garcia (2018) 28 

Cal.App.5th 961, 971-972.) The reasoning in those cases apply in this case because SB 

136 is an ameliorative change in the law that provides for a reduced sentence.

In this case, defendant’s judgment was not final when SB 136 went into effect on 

January 1, 2020. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [finality includes the 

90-day period in which an appellant could seek certiorari in the United States Supreme 

Court after the California Supreme Court denies review]; People v. Nasalga (1996) 12 
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Cal.4th 784, 789, fn. 5.) As a result, the change in section 667.5, subdivision (b), applies 

to defendant retroactively. Moreover, because the basis for defendant’s prior prison term 

enhancement was a conviction for infliction of corporal injury, which was not a specified 

sexually violent offense, the enhancement under section 667.5, subdivision (b), should be 

stricken. 

Based on the above, defendant additionally requests that the enhancement, and not 

just the punishment for the enhancement under section 667.5, subdivision (b), be vacated. 

The People agree with defendant. We agree with the parties and hereby vacate 

defendant’s prior prison term enhancement pursuant to SB 136.

DISPOSITION

The judgment is modified by striking the one-year enhancement imposed pursuant 

to Penal Code section 667.5, subdivision (b). The trial court is ordered to prepare a new 

abstract of judgment and forward it to the Department of Corrections and Rehabilitation. 

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

MENETREZ

J.