Opinion
A157426
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JOEL PINEDA LUGTU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 18-NF-016409) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to the California Standards of Judicial Administration, standard 8.1. (People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
A. Background
The underlying facts of this case are not relevant to the issues on appeal. Suffice it to say, appellant Joel Pineda Lugtu possessed identification documents for over ten individuals. He was convicted following a jury trial of one count of possession of the personal identifying information of ten or more persons (count 1) and identity theft with a prior conviction (count 2). The court found a prior prison term allegation to be true. (Pen. Code, §§ 530.5, subd. (c)(2) & (3), 667.5, subdivision (b).) Appellant was sentenced to four years and eight months, consisting of the three-year upper term for count 1 and a consecutive eight-month term for count 2. The sentence was a "split" sentence (see § 1170, subd. (h)(5)(b)), with three years and eight months to be served in county jail and one year on mandatory supervision.
All undesignated section references are to the Penal Code unless otherwise indicated --------
B. Proposition 47's Applicability to Identity Theft
Appellant argued in his opening brief that his convictions of two versions of identity theft under section 530.5 must be treated as misdemeanors under Proposition 47, because there was no proof that the value of the documents exceeded $950. He appropriately concedes in his reply brief that the California Supreme Court recently rejected this argument and determined that crimes involving the misuse of personal identifying information are not subject to Proposition 47. (People v. Jiminez (2020) 9 Cal.5th 53, 59.) We are bound by the Supreme Court's decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Senate Bill 136
At the time of appellant's sentencing, section 667.5, subdivision (b) provided for a one-year sentence enhancement if the defendant previously served a prison term for an offense that is not a violent felony under section 667.5, subdivision (c). Amended by Senate Bill 136, which was effective January 1, 2020, section 667.5, subdivision (b) now applies only if the prior prison term was served for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (§667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1; Gov. Code, § 9600, subd. (a).) Appellant did not serve his prior prison term for a sexually violent offense, so he would not incur a sentence enhancement if he were sentenced under current section 667.5, subdivision (b).
Because appellant's case is not yet final, he contends the statutory amendment applies retroactively and the enhancement that was imposed for the prior prison term should be stricken. The People concede the statutory change applies retroactively. We agree. (People v. Gastelum (2020) 45 Cal.App.5th 757, 772; People v. Petri (2020) 45 Cal.App.5th 82, 93; see In re Estrada (1965) 63 Cal.2d 740, 745.)
This leaves us with the question of remedy. Remand is not necessary when the court has already imposed the maximum sentence available. (People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15; People v. Lopez (2019) 42 Cal.App.5th 337, 342.) The overall sentence in this case apart from the prison prior was the maximum available (the upper term plus a consecutive term), but the court ordered that a year of this time be served under mandatory supervision. Because the ratio of mandatory supervision to jail time could be affected by the elimination of the one-year term under section 667.5, subdivision (b) enhancement, we think the more prudent course is a remand for resentencing rather than a modification by this Court. Appellant does not argue for a different remedy.
D. Disposition
The case is remanded for resentencing. The judgment is otherwise affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.