for Partial Publication.[*]]
Cal.Rptr.3d 884] APPEAL from a judgment of the Superior Court
of Kern County. Steven M. Katz, Judge. Super. Ct. No.
Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Michael P. Farrell, Senior
Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for
Plaintiff and Respondent.
2017, a jury convicted Jose Carlos Lopez of possession of a
controlled substance (heroin) for sale (Health & Saf. Code, �
11351). The trial court sentenced Lopez to the upper term of
eight years, enhanced by four years based on four prior
prison terms (Pen. Code, � 667.5, subd. (b)). Lopez’s
sentence was further enhanced by three years by Health and
Safety Code section 11370.2. In a companion case, the court
imposed a one-third consecutive term of 32 months for Lopez’s
2015 conviction for transporting narcotics (heroin) for sale
(Health & Saf. Code, � 11352, subd. (a)). Lopez received an
aggregate prison term of 17 years eight months.
contends the trial court abused its discretion in permitting
the jury to hear about his 2015 conviction for transporting
heroin for sale. He also claims the court abused its
discretion when it rejected a chain of custody argument and
permitted the jury to hear about the heroin seized in this
matter and tested by a crime laboratory. We reject these
claims. However, we agree with the parties that Lopez’s
three-year enhancement pursuant to Health and Safety Code
section 11370.2 must be [254 Cal.Rptr.3d 885] stricken
because it is inapplicable in this case. We also agree with
the parties that Senate Bill No. 136 (2019-2020 Reg. Sess.;
Senate Bill 136), which the Governor recently signed,
retroactively applies to Lopez. Senate Bill 136 amends the
circumstances under which a one-year sentence enhancement may
be imposed under section 667.5, subdivision (b). Under the
new law, none of Lopez’s four prior prison terms qualify for
this enhancement. We strike the enhancements under section
667.5, subdivision (b), and Health and Safety Code section
11370.2, but otherwise affirm the judgment.
summarize the material trial facts. We provide additional
facts later in this opinion when relevant to specific issues
raised on appeal.
January 6, 2016, a senior deputy with the Kern County
Sheriff’s Department, Michael Dorkin, arrested Lopez, who was
wanted on an outstanding warrant. When he searched Lopez,
Dorkin found a bag containing 24 bindles of suspected heroin.
The total heroin, including the bag and bindles, weighed 35.9
grams. Dorkin also found three $20 bills, three $10 bills,
and 11 $1 bills on Lopez (a total of $101). At the time of
his arrest, Lopez appeared to be under the influence of
heroin. Later testing confirmed that at least five of the
bindles recovered ...