Opinion
C090879
08-06-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD RUBIO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CR001926)
Defendant James Edward Rubio pleaded guilty to resisting an executive officer (Pen. Code, § 69) and admitted having three prior felony convictions with prison terms (§ 667.5, subd. (b)). Defendant was sentenced to a total of six years in prison, comprised of the upper term of three years, plus one year for each of defendant's prior prison terms. On appeal, the parties agree that the enhancements imposed pursuant to section 667.5, subdivision (b) must be stricken because of recently adopted legislation. We agree with the parties, and modify the judgment to strike the enhancements for defendant's prison priors.
Undesignated statutory references are to the Penal Code. --------
DISCUSSION
We omit any discussion of the underlying facts of this case, as these facts are not relevant to defendant's contentions or to our determination of the merits thereof. It suffices to say that defendant contends his three one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b) must be stricken pursuant to the amendment to section 667.5, subdivision (b) by Senate Bill No. 136 (2019-2020 Reg. Sess.) effective January 1, 2020, and the People agree.
On October 8, 2019, the Governor signed Senate Bill No. 136 into law. The new law, which became effective on January 1, 2020, amends section 667.5, subdivision (b), which formerly imposed a one-year sentence enhancement for each separate prior prison term or county jail term imposed under section 1170, subdivision (h) where defendant had not remained free of custody for at least five years. (Former § 667.5, subd. (b).) Pursuant to Senate Bill No. 136, a one-year prison prior enhancement now applies only if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.)
Because his sentence was not final when Senate Bill No. 136 took effect and because his prior offenses were not for sexually violent felonies, we agree with the parties that the amended law applies to defendant retroactively. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [defendant entitled to retroactive application of criminal statute that takes effect during the time defendant has to appeal to the United States Supreme Court]; In re Estrada (1965) 63 Cal.2d 740, 742; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.) Therefore, we modify the judgment to strike defendant's three one-year prior prison terms and otherwise affirm. We need not remand this matter for resentencing, as the trial court already imposed the maximum sentence available. (See Lopez, at p. 342.)
DISPOSITION
The judgment is modified to strike the three one-year prior prison term enhancements. (§ 667.5, subd. (b).) As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Renner, J.