Opinion
A157771
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. HAKI CHE MCCLAIN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR 342478) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
I.
Haki Che McClain appeals a judgment of conviction entered upon his plea of guilty to four offenses arising out of an incident in which he was involved in a traffic accident and then tried to flee from a law enforcement officer while driving.
He was charged with evading arrest in violation of Vehicle Code section 2800.2, subdivision (a); leaving the scene of an accident that resulted in permanent injury in violation of Vehicle Code section 20001, subdivision (b)(2); resisting arrest in violation of Penal Code section 148, subdivision (a)(1); and running a red light in violation of Vehicle Code section 21453, subdivision (a).
All statutory references are to the Penal Code, unless otherwise indicated. --------
The complaint also alleged McClain had four prior convictions for serious or violent felonies for purposes of the Three Strikes Law, and had served four prior prison terms for purposes of section 667.5, subdivision (b).
Pursuant to an open plea, McClain pled guilty to all four offenses and admitted he had suffered the prior convictions as alleged. The trial court denied McClain's motion to dismiss the strike priors and sentenced him to four years for leaving the scene of an accident, which it doubled because of the prior strike convictions, a concurrent term of three years for evading an officer, a concurrent term of six months for resisting arrest, and a consecutive four years for the prison term enhancements, for a total of twelve years.
This timely appeal followed.
II.
The sole issue McClain raises on appeal is that under recently enacted legislation, Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136),which was signed into law by Governor Newsom on October 8, 2019, the four one-year prison priors imposed on him as sentencing enhancements must be stricken.
SB 136, which went into effect on January 1, 2020 (Stats. 2019, ch. 590, § 1; Pen. Code § 667.5), narrows the universe of qualifying prior prison terms under section 667.5. Under current law as revised by SB 136, a prior prison term that triggers sentencing enhancement under section 667.5 must be for a sexually violent offense.
None of the four prison priors that served as a basis for the section 667.5 enhancements imposed on McClain as part of his sentence was for a sexually violent offense.
McClain argues that, because the judgment of conviction under review is not final, he is entitled to avail himself of the ameliorative benefit of SB 136 applied retroactively to his case under In re Estrada (1965) 63 Cal.2d 740. Thus, he contends, each of the four one-year enhancements imposed on him under section 667.5 must be stricken. He asks that, here on appeal, we order these enhancements stricken.
The Attorney General concedes that none of McClain's prison priors was for a sexually violent offense, that SB 136 is retroactively applicable to this case, and that each of the prison prior enhancements must be stricken, but urges us to remand the case to allow the trial court to reconsider all sentencing choices under People v. Cortez (2016) 3 Cal.App.5th 308, since the trial court is not limited to simply striking the invalid portion of McClain's sentence.
The Attorney General's proposed disposition is the correct one. Following vacatur of a sentence when discrete components of an aggregate sentence are invalidated, "[t]he court is entitled to revisit sentencing decisions that have nothing to do with" the components held to be invalid. (People v. Cortez, supra, 3 Cal.App.5th at p. 316.) It "may, for example, impose an upper-term punishment when the middle term had previously been imposed. [Citation.] A court may also impose a previously stayed sentence. [Citation.] And, apropos to the present case, a court may choose to run counts consecutively that were previously run concurrently." (Ibid.)
DISPOSITION
The judgment is vacated and the case is remanded with directions to strike the four one-year section 667.5 enhancements and for resentencing without the stricken enhancements.
STREETER, J. WE CONCUR: POLLAK, P. J.
BROWN, J.