Modification: People v. Berg

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON A BERG,

Defendant and Appellant.

No. D073749

(Super. Ct. Nos. SCD123437,

HC21858)

California Courts of Appeal

Fourth Appellate District

Division One

Filed May 23, 2019

THE COURT:

It is ordered that the opinion filed herein on April 29, 2019, be modified as follows:

1. On page 26, after the first sentence of the first full paragraph ending in "did not change until January 1, 2018," add a footnote as follows:

23. In a petition for hearing, the People contend that People v. Hargis (2019) 33 Cal.App.5th 199 (Hargis) supports the conclusion that the trial court in this case "acted within its discretion by considering a new law." (Capitalization & boldface omitted.) We disagree. In Hargis, the Court of Appeal considered the effect of two changes in the law pertaining to the scope of a trial court's jurisdiction on remand from a prior appellate opinion. First, the Hargis court concluded that a trial court had jurisdiction on remand to consider the effect of the enactment of Proposition 57, which had become effective prior to finality of the prior appeal. (Hargis, supra, at p. 207.) In contrast, in this case, as stated in the text, Senate Bill No. 394 did not become effective until well after the finality of our prior opinion that resulted in an unqualified affirmance of the trial court's prior order. Thus, this aspect of Hargis is clearly distinguishable.

With respect to the other change in the law at issue in Hargis, the enactment of Senate Bill No. 620 which permits a trial court the discretion to strike a firearm enhancement, the Hargis court concluded that this law would not be given retroactive effect in view of the fact that it had become effective after finality of the prior appeal and the Legislature had not intended for the statute to apply retroactively to final cases. (Hargis, supra, 33 Cal.App.5th at p. 209.) While the Hargis court concluded that the defendant could benefit from Senate Bill No. 620 if the trial court were to conclude that he was entitled to juvenile disposition under Proposition 57, this was because the change in the law "expressly extended the authority of a trial court to strike or dismiss a [firearm] enhancement 'to any resentencing,' " and the potential subsequent juvenile disposition would be "akin to a resentencing." (Hargis, supra, at p. 210.) In this case, the People point to nothing indicating that the Legislature intended for Senate Bill No. 394 to apply to final habeas orders granting resentencing, and there is no future proceeding akin to the potential juvenile disposition at issue in Hargis to which the change in the law might be said to operate.

2. On page 26, renumber footnote 23 as footnote 24.

The petition for rehearing is denied.

There is no change in the judgment.

NARES, Acting P. J.