Opinion
F079789
11-30-2020
THE PEOPLE, Plaintiff and Respondent, v. NATHAN PLETCHER, Defendant and Appellant.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Peter H. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF175858A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and DeSantos, J.
-ooOoo-
Defendant Nathan Pletcher contends on appeal that his one-year prior prison term enhancement 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 enhancement should be stricken. We strike the prior prison term enhancement and affirm in all other respects.
All further statutory references are to the Penal Code unless otherwise stated.
On October 6, 2020, defendant abandoned four other arguments: (1) the trial court erred in instructing the jury on general intent because the only offense before the jury was a specific intent crime, (2) the trial court erroneously admitted evidence of, and permitted the prosecutor's comment on, his prior silence for impeachment purposes in violation of the Fourteenth Amendment, (3) assuming that his second argument was not preserved for appeal because defense counsel failed to object, that failure constituted ineffective assistance of counsel, and (4) the trial court erred in imposing fines and assessments without holding an ability to pay hearing.
PROCEDURAL SUMMARY
On April 2, 2018, the Kern County District Attorney filed an information charging defendant with owning a chop shop (Veh. Code, § 10801; count 1), receiving stolen property (§ 496, subd. (a); count 2), unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 3), and receiving a stolen vehicle (Veh. Code, § 496d; count 4). As to all counts, the 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 a prior prison term (§ 667.5, subd. (b)).
All further dates refer to the year 2018 unless otherwise stated. --------
On May 7, 2019, on its own motion, the trial court reduced counts 3 and 4 to misdemeanors pursuant to section 17.
On June 6, 2019, the first day of trial, on the prosecutor's motion, the trial court dismissed counts 3 and 4. On June 10, 2019, on the prosecutor's motion, the court dismissed count 1. On June 13, 2019, the jury found defendant guilty on count 2. In a bifurcated hearing on the same day, the trial court found true the allegations that defendant had suffered a prior strike conviction and had served one prior prison term. The prior prison term was served for a conviction of evading a peace officer (Veh. Code, § 2800.2).
On July 11, 2019, the trial court sentenced defendant to seven years in prison as follows: on count 2, six years (the upper term of three years doubled because of the prior strike conviction) plus a one-year prior prison term enhancement.
On August 13, 2019, defendant filed a notice of appeal.
FACTUAL SUMMARY
Prosecution's Case
Matthew Purdy was a member of a five-piece rock and roll band. Purdy typically stored the band's instruments and stereo equipment in his garage. However, on November 14, he returned home late and left a trailer containing the band's equipment in his driveway. The following day, Purdy discovered that the trailer and equipment was missing. He did not give anyone permission to take the trailer or its contents. On the same day, he learned where the equipment might be located and informed the sheriff's department.
On November 15, Kern County Sheriff's Deputies Eric Deutinger and Tyler Jauch were dispatched to defendant's house in Kern County to investigate the theft of Purdy's trailer and equipment. They discovered that defendant lived at the house. When the officers arrived, they found the garage door open and black speakers in the garage. As Deutinger approached the garage, he heard Jauch shout "backyard." Deutinger ran to the back yard and saw defendant jumping over the back fence. Deutinger commanded defendant to stop but he did not. Defendant continued to flee through back yards until he came to a yard with a large dog. Defendant then reversed course and ran until he encountered another deputy. Defendant then surrendered.
Purdy came to defendant's house to identify the band's belongings. He confirmed that all the items stolen from the band were located in defendant's front yard, garage, and vehicle. The recovered items included amplifiers, floor monitors, P.A. monitors, subwoofers, guitar racks, microphone stands, a sound board, a dolly, a keyboard, a drum kit, storage equipment, a mixing board, cables, plugs, and oriental rugs. That equipment had an estimated market value of $4,600 to $5,000.
Defense Case
On November 15, defendant lived with his wife and children at a house in Kern County. That day, he went to a convenience store to pick up a pizza for his family. While at the store, he was approached by a man who wanted to sell him stereo equipment. Defendant eventually agreed to purchase the equipment for $260. Defendant did not think the items were stolen because the man he purchased them from "looked like a decent dude."
When defendant saw the officers, he thought they were probation officers. Defendant had failed to check in with probation that month as required so he ran.
DISCUSSION
Defendant argues his prior prison term enhancement 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 a one-year section 667.5, subdivision (b) prior prison term enhancement for a term served for a conviction of evading a peace officer (Veh. Code, § 2800.2), which is not 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 enhancement.
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 enhancement and direct the trial court to prepare an amended abstract of judgment.
DISPOSITION
Defendant's prior prison term enhancement (§ 667.5, subd. (b)) is 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. Pursuant to the parties' stipulation, the remittitur in this proceeding shall issue immediately. (Cal. Rules of Court, rule 8.272(c)(1).)