Opinion
D076069
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. WENDALL E. EDDINGTON, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD279119) APPEAL from judgment of the Superior Court of San Diego County, Yvonne Esperanza Campos, Judge. Affirmed in part and remanded with directions. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Wendall E. Eddington of unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)); and knowingly receiving stolen property (Pen. Code, § 496d). The trial court found true allegations that Eddington suffered four qualifying prior theft convictions (§ 666.5, subd. (a)); and had suffered a prison prior (§ 667.5, subd. (b)).! (CT 158-159)!
All further statutory references are to the Penal Code unless otherwise specified.
The court sentenced Eddington to a four-year term consisting of three years (the middle term of count 2) plus a consecutive one-year term for the prison prior.
The court also imposed a $1200 restitution fine under section 1202.4, subdivision (b), as well as various fees and assessments.
Eddington appeals contending Senate Bill No. 136 renders his prison prior enhancement invalid. He argues we must strike the enhancement. The People agree the enhancement is no longer valid and we should order the trial court to strike it. The People argue, however that we should remand the case to the trial court for resentencing because the court could lawfully impose the same term without the enhancement by imposing the upper term. Eddington objects and requests the court simply strike the enhancement. Since the court has options it could consider to lawfully restructure its sentence, we will remand with directions to strike the enhancement and conduct such further sentencing proceedings as the court deems proper.
Eddington recognizes he did not object to the fines and fees imposed by the court. He contends his trial counsel provided ineffective assistance of counsel under the Sixth Amendment. However, since we will remand the case for resentencing and striking the prison prior, it makes sense to provide Eddington the opportunity to raise his objections to the fines, fees and assessments contained in the original judgment. The approach will allow Eddington to raise such due process objections as he deems appropriate and will allow the court to resolve the contentions without the necessity of a habeas proceeding addressing alleged ineffective assistance of counsel. Therefore, we will order the trial court to vacate the sentence, strike the prison prior and to conduct a new sentencing hearing in accordance with the views expressed in this opinion. Thus, Eddington's ineffective assistance of counsel claim is moot.
The facts of the underlying offenses are not relevant to the issues presented in this appeal. We will omit the traditional statement of facts. --------
DISCUSSION
The Prison Prior
Senate Bill No. 136 changed the law regarding prison priors effective January 1, 2020. The crime for which Eddington was sent to prison no longer qualifies for a one-year enhancement. (People v. Jennings (2019) 42 Cal.App.5th 664, 680-682.). Thus, the one-year enhancement must be stricken.
The parties correctly agree that the court must strike the current prison prior. The People argue we should remand for resentencing to give the court discretion to determine if it believes the sentence should be restructured to provide the same term on a different basis. We agree with the People's suggestion. Here, the court could have exercised discretion to strike the prior at sentencing. It did not do so. It is apparent the court thought the four-year term was appropriate. We believe the court should have the opportunity to determine if it can or should restructure the sentence to achieve the same outcome. We will vacate the sentence, remand for resentencing, and direct the trial court to strike the section 667.5, subdivision (b) prior. We express no opinion as to how the court should exercise its discretion.
DISPOSITION
The sentence is vacated, and the matter is remanded to the trial court for resentencing. The court shall strike the prior conviction enhancement under section 667.5, subdivision (b). The court shall permit Eddington to raise objections to the fines, fees, and assessments previously ordered. The court shall resentence the defendant as it deems appropriate. We express no opinion regarding the trial court's sentencing choices on remand. Following resentencing, the court shall prepare an amended abstract of judgment and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.