Opinion
A156447
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA BLINN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. CR1804767, CR1802398)
Appellant Joshua Blinn seeks an order striking two 1-year enhancements imposed pursuant to subsequently repealed provisions of Penal Code section 667.5, to which the Attorney General agrees he is entitled. We shall therefore grant the relief and issue the remittitur forthwith.
All further statutory references are to the Penal Code. --------
Briefly, the relevant facts are these. On October 29, 2018, the Humboldt County District Attorney filed an information in case No. CR1804767 charging appellant with grand theft over $950 (§ 487, subd. (a)) and alleging that appellant had served two prior prison terms within the meaning of section 667.5, subdivision (b). Based on the newly charged offense, the Humboldt County Probation Department petitioned to revoke appellant's mandatory supervision for his prior conviction for felony vandalism in case No. CR1802398. In the new case, appellant pleaded guilty to grand theft over $950 and admitted the two prison priors. Appellant also admitted that he had violated the conditions of his supervised release in the vandalism case. On January 31, 2019, the court sentenced appellant in both cases. In the grand theft case, the court sentenced appellant to a term of five years in county jail, consisting of the three-year upper term, plus two years for the prison priors. In the vandalism case, the court revoked appellant's release on mandatory supervision and ordered appellant to serve the remaining 30 months of his sentence in county jail, concurrent with the new sentence.
Appellant filed a timely notice of appeal in both cases. On June 26, 2019, at appellant's request, the court dismissed the consolidated appeal and issued the remittitur. On June 11, 2020, this court granted appellant's motion to recall the remittitur and reinstate the appeal.
Appellant requests the court to strike the two prison priors imposed under section 667.5, subdivision (b) because, effective January 1, 2020, that statute was amended to make the one-year enhancement available only if the prior prison term was served for a sexually violent offense, which neither of appellant's prior offenses was. The Attorney General agrees the enhancements should be stricken. Because this court recalled the remittitur and reinstated appellant's appeal, his case is not yet final and he is therefore entitled to the benefit of the change in the law. (People v. Winn (2020) 44 Cal.App.5th 859, 872-873.)
Moreover, as the Attorney General also agrees, because appellant pleaded guilty to the grand theft charge and enhancements pursuant to an open plea and the court imposed the upper term for that grand theft charge, remand is not warranted for an exercise of discretion by the trial court.
Disposition
The two section 667.5, subdivision (b) enhancements are stricken, and appellant's sentence is reduced accordingly. The superior court shall correct the abstract of judgment. The judgment is otherwise affirmed. Upon stipulation of the parties, the remittitur will be issued without delay.
POLLAK, P. J. WE CONCUR: STREETER, J.
TUCHER, J.