Opinion
F077071
03-15-2021
THE PEOPLE, Plaintiff and Respondent, v. KEITH MARTIN DAVIS, Defendant and Appellant.
Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald Engler, Deputy Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF167102A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald Engler, Deputy Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Detjen, J. and Peña, J.
-ooOoo-
Defendant Keith Martin Davis contends on appeal that his one-year prior prison term enhancements should be stricken pursuant to Penal Code section 667.5, subdivision (b), as amended by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). The People agree that defendant's prior prison term enhancements should be stricken. We strike the prior prison term enhancements and affirm in all other respects.
All further statutory references are to the Penal Code unless otherwise stated.
On January 5, 2021, defendant abandoned his two other arguments: (1) the fees imposed pursuant to section 1465.8 and Government Code section 70373 should be stricken pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, and (2) we should independently review the Pitchess record for abuse of discretion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
PROCEDURAL SUMMARY
On October 17, 2017, the Kern County District Attorney filed an amended information charging defendant with resisting an executive officer by threat or violence (§ 69; count 1), possession of heroin for sale (Health & Saf. Code, § 11351; count 2), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 3), misdemeanor resisting a peace officer (§ 148, subd. (a)(1); count 4), and misdemeanor battery of a peace officer (§ 243, subd. (b); count 5). As to counts 1 through 3, the amended information alleged defendant had suffered a prior felony "strike" conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served seven prior prison terms (§ 667.5, subd. (b)).
All further dates refer to the year 2017 unless otherwise stated.
On October 25, the jury found defendant guilty as charged. On October 27, in a bifurcated hearing, the trial court found true the allegations that defendant had suffered a prior strike conviction and had served six prior prison terms. The prior prison terms were served for convictions of possession of a controlled substance for sale (Health & Saf. Code, § 11378), possession of ammunition by a felon (§ 30305, subd. (a)(1)), assault with a deadly weapon (§ 245, subd. (a)(1)), possession of a firearm by a felon (former § 12021, subd. (a)(1)), and receiving stolen property (§ 496, subds. (a), (d)).
On February 6, 2018, the trial court sentenced defendant to 15 years eight months in prison as follows: on count 2, eight years (the upper term of 4 years doubled because of the prior strike conviction) plus five one-year prior prison term enhancements; on each of counts 1 and 3, 16 months (one-third of the middle term), to be served consecutively to the sentence on count 2; on each of counts 4 and 5, defendant was sentenced to jail and the sentence was stayed pursuant to section 654.
On February 26, 2018, defendant filed a notice of appeal.
FACTUAL SUMMARY
On January 31, Kern County Sheriff's Deputy Rodney Jones observed defendant and Sherry Lola outside of a residence in Kern County, arguing with someone inside of the residence. Jones asked defendant if there was a problem. Jones noticed that defendant was sweating profusely, showed finger tremors, and seemed nervous. Jones suspected that defendant was under the influence of a controlled substance. Defendant and Lola responded that "there was nothing going on, and they had no problems." Jones asked if defendant was on probation or parole. Defendant was on probation on that date. Defendant lunged toward Jones and grazed the left side of Jones's face with his closed fist. Defendant then ran. Jones chased defendant and tackled him. Jones struggled to put handcuffs on defendant and defendant resisted. Lola stood near the two struggling men and told Jones to leave defendant alone. Jones placed handcuffs on defendant and then searched his person. Jones discovered a bag containing 46 grams of methamphetamine in a front pocket of defendant's sweater, a bag containing 23 grams of heroin in his front right pants pocket, and $216 in his front left pants pocket. Jones did not find a pipe or any other drug paraphernalia on defendant's person.
Jones read a Miranda admonition to defendant and defendant responded that he understood the admonition. Defendant told Jones that he was a habitual narcotics user but denied possessing the controlled substances for sale. Defendant further told Jones that he did not have a job and that his mother gave him the money found in his possession.
Miranda v. Arizona (1966) 384 U.S. 436. --------
The controlled substances found in defendant's possession were tested and determined to be 45.28 grams of methamphetamine and 21.45 grams of heroin.
DISCUSSION
Defendant argues his prior prison term enhancements must be stricken based on the retroactive application of Senate Bill 136. The People agree, as do we.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b) to limit application of prior prison term enhancements to only prior prison terms that were served for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That amendment applies retroactively to all cases not yet final on Senate Bill 136's effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342, citing In re Estrada (1965) 63 Cal.2d 740, 742.)
Here, the trial court imposed five one-year section 667.5, subdivision (b) prior prison term enhancements for terms served for convictions of possession of a controlled substance for sale (Health & Saf. Code, § 11378), possession of ammunition by a felon (§ 30305, subd. (a)(1)), assault with a deadly weapon (§ 245, subd. (a)(1)), possession of a firearm by a felon (former § 12021, subd. (a)(1)), and receiving stolen property (§ 496, subds. (a), (d)), none of which is a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1, 2020, defendant's case was not yet final. Therefore, as the parties agree, defendant is entitled to the ameliorative benefit of Senate Bill 136's amendment to section 667.5, subdivision (b). We therefore strike defendant's prior prison term enhancements.
Where an appellate court strikes a portion of a sentence, remand for " 'a full resentencing as to all counts is [generally] appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) However, remand is unnecessary where the trial court has imposed the maximum possible sentence. (People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
Here, the trial court imposed the maximum possible sentence and therefore remand is unnecessary. Accordingly, we strike the prior prison term enhancements and direct the trial court to prepare an amended abstract of judgment.
DISPOSITION
Defendant's prior prison term enhancements (§ 667.5, subd. (b)) are stricken. The trial court is directed to prepare an amended abstract of judgment. The court shall forward a copy of the amended abstract of judgment to the appropriate entities. As so modified, the judgment is affirmed.