Filed 7/15/21

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PETE PINEDO,

Defendant and Appellant.

F078442

(Super. Ct. No. BF171497A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John D. 

Oglesby, Judge.

Jennifer Mouzis, 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.

-ooOoo-

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction, 

part II. of the Discussion, and the Disposition are certified for publication.
2.

INTRODUCTION

In 2018, defendant Pete Pinedo was arrested following a search of his residence by 

probation officers.1 He was charged with two felonies, possession of a firearm by a felon 

(Pen. Code, § 29800, subd. (a)(1); count 1)2 and possession of ammunition by a felon

(§ 30305, subd. (a)(1); count 2), and two misdemeanors, being under the influence of a 

controlled substance (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); 

1 We do not further summarize the facts underlying defendant’s convictions, as they are 

not relevant to the claims he raises on appeal.

2 All further statutory references are to the Penal Code unless otherwise specified.
3.

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 Pitchess3 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 

(Dueñas). In supplemental briefing and in reliance on the Estrada presumption,4

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.5

The People do not object to our independent review of the Pitchess proceedings 

and they concede defendant is entitled to have the prior prison 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 

3 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

4

In re Estrada (1965) 63 Cal.2d 740 (Estrada).

5 Assembly Bill No.1261 (2019–2020 Reg. Sess.) (Assembly Bill No. 1261 or Assem. Bill 

No. 1261) and Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill No. 136).
4.

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 (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*

A. Background

Defendant filed a pretrial motion seeking discovery from the personnel file of 

Officer Ortiz, who was involved in the residential search that resulted in defendant’s 

arrest. (Evid. Code, § 1043; Association for Los Angeles Deputy Sheriffs v. Superior 

Court (2019) 8 Cal.5th 28, 41.) The prosecutor opposed the motion, but the trial court 

found good cause shown, conducted an in camera review of Officer Ortiz’s personnel 

file, and determined there was no discoverable information. (Association for Los Angeles 

Deputy Sheriffs v. Superior Court, supra, at pp. 41–43.) Defendant now requests that we 

conduct an independent review of the Pitchess proceedings to ensure that the trial court 

complied with the procedural requirements set forth in People v. Mooc (2001) 26 Cal.4th 

1216, 1228–1229, and did not abuse its discretion in denying discovery. The People do 

not oppose this request. 

B. Legal Standard

Pursuant to Evidence Code section 1043, subdivision (b), “on a showing of good 

cause, a criminal defendant is entitled to discovery of relevant documents or information 

in the confidential personnel records of a peace officer accused of misconduct against the 

defendant. [Citation.] Good cause for discovery exists when the defendant shows both 

‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that 

* See footnote, ante, page 1.
5.

the agency has the type of information sought.’ [Citation.] A showing of good cause is 

measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial 

court review of ‘all potentially relevant documents.’ [Citation.] If the defendant 

establishes good cause, the court must review the requested records in camera to 

determine what information, if any, should be disclosed. [Citation.] Subject to certain 

statutory exceptions and limitations [citation], ‘the trial court should then disclose to the 

defendant “such information [that] is relevant to the subject matter involved in the 

pending litigation.”’” (People v. Gaines (2009) 46 Cal.4th 172, 179; accord, Association

for Los Angeles Deputy Sheriffs v. Superior Court, supra, 8 Cal.5th at pp. 40–43.)

On appeal, a defendant may request an independent review of the proceedings and 

the trial court’s determination regarding the presence or absence of discoverable 

information. (People v. Townsel (2016) 63 Cal.4th 25, 67–68; People v. Yearwood

(2013) 213 Cal.App.4th 161, 179–180.) “A trial court is afforded wide discretion in 

ruling on a motion for access to law enforcement personnel records. The decision will be 

reversed only on a showing of abuse of discretion.” (People v. Yearwood, supra, at 

p. 180, citing People v. Hughes (2002) 27 Cal.4th 287, 330.)

C. No Abuse of Discretion

We have independently reviewed the record and examined Officer Ortiz’s 

personnel file. We find the trial court followed the proper procedure and created an 

adequate record of the in camera hearing. (People v. Mooc, supra, 26 Cal.4th at 

pp. 1228–1229; People v. Yearwood, supra, 213 Cal.App.4th at p. 180.) We also find the 

trial court did not abuse its discretion in determining there is no information subject to 

disclosure. (People v. Samayoa (1997) 15 Cal.4th 795, 827.)

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 
6.

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.)

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.)6

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 [2021 Cal. 

Lexis 4156, *7] (Esquivel); People v. McKenzie (2020) 9 Cal.5th 40, 46 (McKenzie).) In 

accordance with Estrada, defendant claims he is entitled to have the narcotics registration 

requirement stricken under Assembly Bill No. 1261.7 The People disagree. They argue 

6

In full, Assembly Bill No. 1261 repealed former Health and Safety Code sections 11590, 

11592, 11593, 11594, and 11595; reenacted section 11594; and amended sections 11591 and 

11591.5 pertaining to school employees and community college district teachers or instructors. 

(Stats. 2019, ch. 580, §§ 1–9, pp. 1–3.)

7 “While [former Health and Safety Code] section 11590 creates a duty on any person 

within its terms to comply with the registration provisions, it does not give rise to a concomitant 
7.

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.)

“Generally, statutes are presumed to apply only prospectively.” (People v. Frahs

(2020) 9 Cal.5th 618, 627 (Frahs), citing People v. Lara (2018) 4 Cal.5th 299, 307

(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, citing & quoting Lara, supra, at p. 307.)

duty on the part of the trial court to order a convicted person to comply with such registration 

provisions.” (In re Luisa Z. (2000) 78 Cal.App.4th 978, 983 (Luisa Z.), citing People v. Terrell

(1999) 69 Cal.App.4th 1246, 1258.) In this instance, however, the trial court ordered defendant 

to register and the requirement is reflected in the abstract of judgment.
8.

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.) 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 (Gentile); accord, Frahs, supra, 9 Cal.5th at p. 624;

McKenzie, supra, 9 Cal.5th at pp. 44–45; Lara, supra, 4 Cal.5th at pp. 307–308.) 

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, quoting People v. Rossi (1976) 18 Cal.3d 295, 301; accord, McKenzie, 

supra, at p. 45; People v. Collins (1978) 21 Cal.3d 208, 212–213.)

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 (Alva); People v. Castellanos (1999) 21 Cal.4th 785, 

799, 805 (Castellanos); Luisa Z., supra, 78 Cal.App.4th at p. 983.) 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 context.8 (Alva, supra, at p. 290 [mandatory lifetime sex offender registration not 

8

In People v. Ruiz, the California Supreme Court stated, “‘[T]he traditional aims of 

punishment’ are ‘retribution or deterrence.’ (People v. Alford (2007) 42 Cal.4th 749, 759.) 

However, a sanction does not constitute punishment merely because it has some ‘deterrent or 

retributive effect.’ (In re Alva[, supra,] 33 Cal.4th [at p.] 286 (Alva).) As we have explained in 

the context of applying the state and federal protections against cruel and/or unusual 
9.

punishment under cruel and/or unusual punishment clauses]; Castellanos, supra, at p. 796 

[sex offender registration requirement not punishment for purposes of ex post facto 

analysis]; Luisa Z., supra, at p. 983 [narcotics offender registration requirement not 

punishment for purposes of ex post facto analysis]; see People v. Mosley (2015) 60 

Cal.4th 1044, 1062–1069 [sex offender residency restriction not a penalty for a crime 

within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)]; Johnson 

v. Department of Justice (2015) 60 Cal.4th 871, 888–889, fn. 10 [sex offender 

registration not punishment] (Johnson); In re Jorge G. (2004) 117 Cal.App.4th 931, 942–

943 [gang registration requirement not punishment under Apprendi]; People v. Bailey

(2002) 101 Cal.App.4th 238, 244 [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 [sex offender registration 

requirement a collateral consequence for purposes of habeas jurisdiction]; In re Stier

(2007) 152 Cal.App.4th 63, 82–83 [same]; People v. McClellan (1993) 6 Cal.4th 367, 

375–376 [sex offender registration requirement a direct consequence for purposes of plea 

advisement]; People v. Cotton (1991) 230 Cal.App.3d 1072, 1084 [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 

punishments, ‘a sanction designed and intended only to serve legitimate nonpenal objectives is 

not punishment ... simply because it may burden, inconvenience, restrict, or deter in fact.’ 

(Ibid.) On the other hand, that a given sanction may ‘serve[] remedial purposes’ does not 

establish that it is not ‘punishment.’ (Austin v. United States (1993) 509 U.S. 602, 610 [applying 

the 8th Amend.]; see People ex rel. State Air Resources Bd. v. Wilmshurst (1999) 68 Cal.App.4th 

1332, 1350 [‘Even assuming a fine serves some remedial purpose, it will be considered 

punishment [for purposes of applying the Eighth Amendment] if it also serves either retributive 

or deterrent purposes’].) In short, because ‘sanctions frequently serve more than one purpose’ 

(Austin, at p. 610) and have multiple effects, determining whether a given sanction constitutes 

‘punishment’ is often difficult. (Cf. People v. One 1950 Cadillac Club Coupe (1955) 133 

Cal.App.2d 311, 318 [‘Practically no civil sanction is entirely remedial or entirely intended as a 

punishment’].)” (People v. Ruiz (2018) 4 Cal.5th 1100, 1107–1108.)
10.

not constitute punishment as it is defined in the context of the cruel and/or unusual 

punishments clause, the ex post facto clause, or Apprendi. (E.g., People v. Mosley, 

supra, 60 Cal.4th at pp. 1062–1069; Johnson, supra, 60 Cal.4th at pp. 888–889, fn. 10; 

Alva, supra, at p. 290; Castellanos, supra, 21 Cal.4th at p. 796; Luisa Z., supra, 78 

Cal.App.4th at p. 983; In re Jorge G., supra, 117 Cal.App.4th at pp. 942–943; People v. 

Bailey, supra, 101 Cal.App.4th at p. 244). 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; accord, Johnson, supra, at pp. 881–882; Alva, supra, at p. 265, fn. 5.) 

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 [§ 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 [2021 Cal. Lexis 4156, *3–6]; Gentile, supra, 10 Cal.5th at p. 852; Frahs, 
11.

supra, 9 Cal.5th at pp. 631–632.)9 Indeed, the primary focus is “whether a change in law 

is ameliorative” (Esquivel, supra, at pp. 675–676 [2021 Cal. Lexis 4156, *6–8]), and in 

People v. Durbin (1966) 64 Cal.2d 474, 479, 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, italics added.)

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. 1950,10 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 (Lord); People v. Stewart (2021) 62 Cal.App.5th 1065, 1072–1073, 

review granted June 30, 2021, S268787 (Stewart); People v. Sims (2021) 59 Cal.App.5th 

943, 960–961 (Sims); People v. Quinn (2021) 59 Cal.App.5th 874, 882–883 (Quinn); 

People v. Burton (2020 58 Cal.App.5th Supp. 1, 14–16 (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, review granted; 

Sims, supra, at p. 958; Quinn, supra, at pp. 882–883.)

9 Briefing was completed in this case prior to the California Supreme Court’s decisions in 

Esquivel, Gentile and Frahs.

10 Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill No. 1950).
12.

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.) 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), not 

solely to changes that reduce ‘punishment’ as defined in contexts different 

than assessing whether Estrada is applicable.” (Burton, supra, 58 

Cal.App.5th Supp. at pp. 15–16.)

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, review granted; Sims, supra, 

59 Cal.App.5th at pp. 959–961; Quinn, supra, 59 Cal.App.5th at p. 883; accord, Lord, 

supra, 64 Cal.App.5th at p. 245.) Sims 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.) “[P]robation—though often deemed 

preferable to imprisonment from the perspective of a defendant—can be invasive, timeconsuming, 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 
13.

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.) “[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.) 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 [2021 Cal. Lexis 4156, *6–7], citing People v. Durbin, supra, 

64 Cal.2d at p. 479.)

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, citing former Health & Saf. 

Code §§ 11590, 11594, subd. (a).) As previously stated, registration requirements serve a 
14.

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. (People v. 

Mosley, supra, 60 Cal.4th at pp. 1062, 1065; Alva, supra, 33 Cal.4th at pp. 268, 288–289, 

fn. 17; Castellanos, supra, 21 Cal.4th at p. 796; People v. Martinez (2004) 116 

Cal.App.4th 753, 760.) 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.)

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), 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, quoting Spears v. County of Modoc (1894) 101 Cal. 303, 305).

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. 
15.

(Luisa Z., supra, 78 Cal.App.4th at p. 984.) The elimination of the registration 

requirement through repeal is clear evidence of legislative intent (People v. Collins, 

supra, 21 Cal.3d at p. 213), 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 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 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.)
16.

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; People v. Rossi, supra, 18 Cal.3d at pp. 301–302.) 

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. Prior Prison Term Enhancement*

Under Estrada and in light of Senate Bill No. 136, defendant also seeks relief from 

the one-year prior prison term enhancement. The People concede his entitlement to relief 

on this claim. 

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 

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) of section 667.5, 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).

We agree with the parties that Senate Bill No. 136 is retroactive under Estrada

and, therefore, the amendment to section 667.5, subdivision (b), applies here. The trial 

court found the prior prison term enhancement allegation true and imposed a one-year 

term based on the enhancement. (§ 667.5, former subd. (b).) Defendant’s 2016 

* See footnote, ante, page 1.
17.

conviction for possession of a firearm by a felon is not a qualifying offense under 

section 667.5, subdivision (b), as amended. Therefore, we order the one-year prior prison 

term enhancement imposed by the trial court stricken.11

IV. Dueñas Claim*

Finally, the trial court imposed the statutory minimum restitution fine of $300 

under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300 

under section 1202.45, subdivision (a), suspended; a total court operations assessment of 

$160 under section 1465.8; 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.

12, 13

 Pursuant to the Court of Appeal’s decision in Dueñas, supra, 30 Cal.App.5th 

11 Striking the prior prison term enhancement does not require remand for resentencing 

under the full resentencing rule where, as here, the trial court imposed the maximum sentence on 

count 1. (People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.) However, as discussed in part IV.

of the Discussion, it is appropriate to remand this matter to allow defendant an opportunity to 

raise the issue of his ability to pay the fines, fees, and assessments imposed.

* See footnote, ante, page 1.

12 Although referred to as fees, the drug program fee imposed under Health and Safety 

Code section 11372.7 and the crime lab fee imposed under Health and Safety Code 

section 11372.5 are punishments rather than nonpunitive administrative fees. (People v. Ruiz, 

supra, 4 Cal.5th at p. 1122.)

13 The penalty assessments referred to herein are comprised of the following seven 

assessments, surcharge, and penalties: “(1) a 100 percent state penalty assessment (§ 1464, 

subd. (a)(1)); (2) a 20 percent state surcharge (§ 1465.7); (3) a state court construction penalty of 

up to 50 percent (Gov. Code, § 70372); (4) a 70 percent additional penalty (Gov. Code, § 76000, 

subd. (a)(1)); (5) a 20 percent additional penalty if authorized by the county board of supervisors 

for emergency medical services (Gov. Code, § 76000.5, subd. (a)(1)); (6) a 10 percent additional 

penalty ‘“[f]or the purpose of implementing the DNA Fingerprint, Unsolved Crime and 

Innocence Protection Act”’ (Gov. Code, § 76104.6, subd. (a)(1)); and (7) a 10 percent additional 

state-only penalty for the purpose of operating forensic laboratories under the same act (Gov. 

Code, § 76104.7).” (People v. Hamed (2013) 221 Cal.App.4th 928, 935; accord, People v. 

Johnson (2015) 234 Cal.App.4th 1432, 1457–1458.)
18.

1157, which was issued after defendant was sentenced, he requests we stay the restitution 

fine and strike the fees and assessments until the prosecution proves he has the ability to 

pay.

For the reasons set forth in our recent decision in Montes, we reject the People’s 

forfeiture argument and their merits-based argument. (Montes, supra, 59 Cal.App.5th at 

pp. 1117–1124.) On remand, the trial court shall allow defendant to raise the issue of his 

ability to pay the fines, fees, and court assessments, and to make a record on those issues. 

(Id. at p. 1122.)

A. Forfeiture

As we recognized in Montes, “the failure to object in the trial court generally 

forfeits a claim on appeal and this principle is applicable to constitutional claims. 

(§ 1259; People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40 

Cal.4th 875, 880–881.) There are exceptions to this general rule, however, and courts of 

review have the discretion to consider an issue notwithstanding the failure to object. 

(People v. McCullough, supra, at p. 593; In re Sheena K., supra, at pp. 887–888, fn. 7.)” 

(Montes, supra, 59 Cal.App.5th at pp. 1117–1118.)

Relevant here, “[t]he restitution statute [expressly] provides that the inability to 

pay is not a ‘compelling and extraordinary reason not to impose a restitution fine[]’ 

(§ 1202.4, subd. (c)), but where ... a trial court imposes a restitution fine above the 

statutory minimum, the court may consider the defendant’s inability to pay in setting the 

fine (§ 1202.4, subd. (d)).” (Montes, supra, 59 Cal.App.5th at p. 1118, italics added.) 

Because the trial court here imposed a minimum restitution fine of $300, defendant was 

precluded from objecting to the fine based on his inability to pay. (Ibid., citing § 1202.4, 

subd. (c).) Likewise, the two crime lab fees of $50 each, imposed on counts 3 and 4 

pursuant to Health and Safety Code section 11372.5, which included total attached 

penalty assessments of $310, were mandatory. (People v. Sharret (2011) 191 

Cal.App.4th 859, 870.)
19.

Additionally, “‘[r]eviewing courts have traditionally excused parties for failing to 

raise an issue at trial where an objection would have been futile or wholly unsupported by 

substantive law then in existence.’ (People v. Welch (1993) 5 Cal.4th 228, 237; accord, 

People v. Gomez (2018) 6 Cal.5th 243, 286–287; People v. Black (2007) 41 Cal.4th 799, 

810.)” (Montes, supra, 59 Cal.App.5th at p. 1119.) “[T]he decision in Dueñas

constituted a marked departure from existing law.” (Ibid.) Given the statutory language 

of Penal Code section 1202.4 and Health and Safety Code section 11372.5, and the state 

of the substantive law prior to Dueñas, we decline to find that defendant forfeited his 

Dueñas claim.14 (Montes, supra, at p. 1121; accord, People v. Son (2020) 49 

Cal.App.5th 565, 596–597; People v. Jones (2019) 36 Cal.App.5th 1028, 1031).

B. Remand Appropriate Due to Undeveloped Record

As explained in Montes, “[w]here, as [here], a defendant advances a claim 

premised on a significant and unforeseeable development in the law that occurred after 

sentencing and during the pendency of the appeal; there was no statutory right to object 

...; and the record is wholly undeveloped on the issue, a limited remand is appropriate to 

allow the parties to address the issue in the trial court in the first instance.” (Montes, 

supra, 59 Cal.App.5th at p. 1122.) “Discretion to determine an appropriate fine amount 

rests with the trial court and the court is free to consider, among other factors, any money 

received by a defendant, be it in the form of prison wages or gifts. (People v. Potts

14 The $100 drug program fee imposed on count 4 included a statutory ability-to-pay 

component, but defendant did not object. (Health & Saf. Code, § 11372.7, subd. (b); People v. 

Sharret, supra, 191 Cal.Capp.4th at p. 864.) In People v. Gutierrez, the Court of Appeal 

concluded that the defendant’s failure to object to the restitution fine forfeited his challenge to 

fines and fees in their entirety, explaining, “As a practical matter, if [the defendant] chose not to 

object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on 

similar grounds regarding an additional $1,300 in fees.” (People v. Gutierrez (2019) 35 

Cal.App.5th 1027, 1033; accord, People v. Montelongo (2020) 55 Cal.App.5th 1016, 1033–1035; 

People v. Taylor (2019) 43 Cal.App.5th 390, 399–400; People v. Frandsen (2019) 33 

Cal.App.5th 1126, 1153–1154.) We agree with this principle but do not apply it where, as here, 

the statutory right to object applied to a minority of the total fines, fees, and assessments 

imposed.
20.

(2019) 6 Cal.5th 1012, 1055–1056 [concluding trial court could lawfully impose $10,000 

restitution fine despite condemned inmate’s categorical ineligibility to earn prison wages 

and his receipt of only occasional small gifts of money from family, and rejecting 

argument ‘that a fine is automatically invalid if a defendant is unable to pay it’].)” (Ibid.)

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 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.

MEEHAN, Acting P.J.

WE CONCUR:

SNAUFFER, J.

DeSANTOS, J.