Opinion
B303105
07-17-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES THOMAS BABAKITIS, Defendant and Appellant.
Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Wyatt E. Bloomfield and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA109577) APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Judgment of conviction affirmed; sentence vacated and remanded for further proceedings. Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Wyatt E. Bloomfield and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant James Thomas Babakitis appeals his sentence, contending that five 1-year prior prison term enhancements imposed upon him pursuant to former Penal Code section 667.5, subdivision (b), must be stricken in light of amendments to that statute effectuated by Senate Bill No. 136 (2019-2020) (Senate Bill 136). We agree. We therefore vacate Babakitis's sentence and remand for resentencing.
All further undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
Because the facts underlying Babakitis's convictions are not relevant to the issue presented on appeal, we do not recite them here.
In 2016, a jury convicted Babakitis of two counts of resisting an executive officer engaged in the performance of his duties (§ 69); assault on a peace officer with a deadly weapon or with force likely to produce great bodily injury (§ 245, subd. (c)); and misdemeanor assault on a peace officer (§ 241, subd. (c).) Babakitis admitted, among other things, serving nine prior prison terms within the meaning of former section 667.5, subdivision (b). The trial court sentenced Babakitis to 21 years 4 months in prison. The sentence included five 1-year prior prison term enhancements pursuant to section 667.5, subdivision (b).
The trial court imposed an aggregate sentence of 23 years 4 months for the instant matter and an unrelated case.
The trial court struck the four remaining prior prison term enhancements. --------
In an unpublished opinion issued on April 30, 2019, we affirmed Babakitis's convictions, but vacated his sentence and remanded for further proceedings to allow the trial court to exercise its discretion to strike a five-year serious felony enhancement in light of then-recent Senate Bill No. 1393. (People v. Babakitis (April 30, 2019, B279617) [nonpub. opn.].)
The trial court resentenced Babakitis on October 4, 2019. It struck the five-year section 667, subdivision (a)(1) serious felony enhancement and resentenced him to a term of 16 years 4 months, which included the five 1-year section 667.5, subdivision (b) enhancements.
Thereafter, the Governor approved Senate Bill 136, which limited section 667.5's application to persons convicted of certain sex offenses.
Babakitis timely appealed.
DISCUSSION
The enhancements imposed pursuant to former section 667.5, subdivision (b), must be stricken
"Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years." (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b), to "limit its prior prison term enhancement to only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b)." (People v. Jennings, at p. 681; People v. Winn (2020) 44 Cal.App.5th 859, 871-872.) Senate Bill 136's amendment to section 667.5 applies retroactively to all defendants, such as Babakitis, whose judgments were not yet final as of the statute's effective date. (People v. Jennings, at pp. 681-682; In re Estrada (1965) 63 Cal.2d 740, 748; People v. Bermudez (2020) 45 Cal.App.5th 358, 378; People v. Petri (2020) 45 Cal.App.5th 82, 93-94; People v. Winn, at p. 872.)
Babakitis's prior prison terms were not imposed for sexually violent offenses. As the parties agree, the five 1-year enhancements must therefore be stricken. In light of these changed circumstances, we remand for resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "]; People v. Jennings, supra, 42 Cal.App.5th at p. 682; People v. Keene (2019) 43 Cal.App.5th 861, 865.)
DISPOSITION
Babakitis's sentence is vacated and the matter is remanded for resentencing. The court is directed to strike the five 1-year sentence enhancements imposed pursuant to former section 667.5, subdivision (b). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
EGERTON, J.