Opinion
F076837
04-29-2020
THE PEOPLE, Plaintiff and Respondent, v. DEJARRNE JODEN SMITH, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Erin Doering, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CMS4835)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Robert Shane Burns, Judge. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent.
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In the early morning hours of January 17, 2015, L.T. was walking home from a friend's house when a man confronted her and dragged her 13 to 15 feet from the sidewalk into a driveway, where he raped her. DNA evidence suggested appellant Dejarrne Joden Smith was the attacker. Smith testified he had consensual intercourse with L.T. around the date of the attack but denied engaging in any nonconsensual sexual acts. L.T. denied knowing Smith or having any consensual contact with him.
A jury convicted Smith of kidnapping to commit rape (count 1), rape with bodily injury (count 3), assault by means likely to produce great bodily injury (count 4), and two counts of making criminal threats (counts 5 and 6). On count 3, the jury found true the following sentencing factors: Smith kidnapped the victim, the kidnapping and movement of the victim substantially increased the risk of harm to her over and above that necessarily inherent in the rape, and the kidnapping was committed for the purpose of committing a rape. Smith admitted a prior strike and prior serious felony conviction for robbery, and two prior prison terms. He was sentenced to an aggregate term of 50 years to life, plus 12 years. The judgment included fines and fees totaling $10,350, with additional fines stayed.
On appeal, Smith contends the evidence is insufficient to support his conviction for kidnapping to commit rape, and to support the jury's true finding that the kidnapping increased the risk of harm to the victim. More specifically, he contends the evidence suggesting L.T. was dragged 13 to 15 feet, up a driveway to an area that was partially obscured from public view, demonstrates the movement of the victim was not substantial, was merely incidental to the rape, and did not increase the risk of harm to the victim. We reject these contentions.
In supplemental briefing, Smith also raises various sentencing challenges. He contends, and the People concede, the matter must be remanded for the trial court to consider whether to exercise its newly afforded discretion to strike his prior serious felony conviction pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No. 1393). (Stats. 2018, ch. 1013, §§ 1-2.) He further contends, and the People once again concede, his one-year prior prison term enhancements must be stricken pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136). (Stats. 2019, ch. 590, § 1.) We agree on both points. Accordingly, we strike Smith's one-year prior prison term enhancements and remand for the court to consider striking the prior serious felony conviction.
Finally, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Smith contends his fines and fees must be stricken or stayed until such time as the People prove his ability to pay. Smith may raise this issue in the trial court on remand; accordingly, we do not address it.
In all other respects, the judgment is affirmed.
PROCEDURAL HISTORY
Smith was charged with kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1); count 1); kidnapping (§ 207, subd. (a), count 2); forcible rape (§ 261, subd. (a)(2); count 3), with allegations that the rape involved kidnapping (§ 667.61, subds. (b), (c), and (e)(1)), movement that substantially increased the risk of harm to the victim (§ 667.61, subds. (a), (c), and (d)(2)), and was for the purpose of committing rape (§ 667.8, subd. (a)); assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 4); two counts of criminal threats (§ 422; counts 5 and 6); attempted robbery (§§ 664, 211; count 7); and false imprisonment (§ 236; count 8). Additionally, the People alleged that Smith suffered a prior strike and serious felony conviction for robbery (§ 667, subd. (a)(1), subds. (b)-(i); § 1170.12, subds. (a)-(d)), and two prior prison terms (§ 667.5, subd. (a)-(b)).
All undesignated statutory references are to the Penal Code.
A jury found Smith guilty on counts 1, 3, 4, 5 and 6, and found true all the sentencing allegations on count 3. The jury found Smith not guilty on count 7. Smith admitted the prior strike, prior serious felony, and prior prison term allegations.
The jury did not return verdicts on counts 2 and 8, which were included offenses to count 1.
On count 3, the court sentenced Smith to a term of 25 years to life, doubled to 50 years to life based on the prior strike conviction. On count 6, the court imposed the upper term of three years, doubled to six years based on the prior strike conviction, to run consecutively to the term on count 3. The court imposed an additional five-year term for Smith's prior serious felony conviction, and an additional one-year term for one of two prior prison terms. Sentence on the remaining counts was stayed.
The court also imposed a $10,000 restitution fine (§ 1202.4, subd. (b)); a $10,000 parole revocation fine, stayed pending successful completion of parole (§ 1202.45); a $200 court security fee (§ 1465.8); and a $150 criminal conviction assessment (Gov. Code, § 70373).
In its oral ruling, the court also imposed a $300 penal fine (§ 290.3); a $300 penalty assessment (§ 1464); a $60 surcharge (§ 1465.7); a $210 county penalty assessment (Gov. Code, § 76000); a $150 court construction penalty (Gov. Code, § 70372); a $30 DNA funding assessment (Gov. Code, § 76140.6); and a $120 DNA penal assessment (Gov. Code, § 76104.7). However, these fines and fees are not reflected in the abstract of judgment, and Smith does not challenge them on appeal. We therefore do not address them further.
This timely appeal followed.
FACTUAL BACKGROUND
Due to the limited nature of Smith's challenges on appeal, we summarize the factual background only briefly.
L.T. testified that she went to the home of her best friend, S.B., on the afternoon of January 16, 2015. She left S.B.'s house around 1:50 a.m. on the morning of January 17, 2015, and began walking home, as was her custom. It generally took approximately 10 to 15 minutes to walk from S.B.'s house to L.T.'s house.
As L.T. approached an intersection, she saw a man walking toward her from across the street. L.T. crossed the street in front of the man and he asked her the time. L.T. turned around briefly and responded that it was 2:00.
L.T. continued walking and heard footsteps behind her. She increased her speed and heard the footfalls behind her coming faster, ultimately increasing to a run. She turned around with her fist up "ready to strike him" and told the man he shouldn't run up behind girls when it is dark. The man jumped back with his hands up, palms facing her, and said, "Whoa." L.T. turned to leave, and the man struck her across the face. The man pinned her to him from behind and covered her mouth with his right hand. He told her to be quiet or he would snap her neck. She screamed, and they struggled. At some point, she attempted to unlock her phone to call 911, and the man grabbed the phone out of her hand.
The man then pulled L.T. by her shoulders for approximately 13 to 15 feet, from the sidewalk to the driveway area of an adjacent house, ultimately stopping between a flatbed trailer and a truck. The area where they stopped was covered in grass and dirt and was not easily visible from the sidewalk or surrounding houses. The man took L.T.'s purse off her arm and told her she was "going to give him some money, or ... give him some pussy." L.T. told the man she didn't have any money and offered him her bank card, which he refused. The man threw L.T.'s purse and cell phone into a neighboring yard.
As L.T. and the man struggled in the area between the trailer and the truck, L.T. landed on her back. The man laid on top of her and shoved her face into the ground with his hand, then pulled down her pants and inserted his penis into her vagina.
Afterward, the man turned her over and laid on top of her as a car passed by. He told her he knew where she lived and would kill her if she told anyone what happened. He put a jacket over her head and told her to count to 100 before she got up. She heard him walk away and she counted to 100, then collected her belongings and proceeded to walk home.
When L.T. arrived home, she told her boyfriend she needed to go to the hospital, where he immediately drove her. L.T. did not let her boyfriend touch her, and did not shower, clean herself, or change clothes. L.T. spent approximately one hour at the hospital, where she spoke with an officer and a detective. She had dried blood and dirt on her face and scratches on her chest and hands. Her face and lip were swollen, her jacket was ripped, and there was dirt on her boots, clothing, and purse. She had pain in her mouth, jaw, and hips. She later developed a black eye and bruising on her left hand and her arms.
Eventually, L.T. left the hospital and travelled to another location for a Sexual Assault Response Team ("SART") exam. She did not stop anywhere else and did not change clothes or clean herself. She was examined by a nurse who took swabs from her vagina, inner thighs, and mouth. The swabs from L.T.'s vagina and thigh were positive for sperm and seminal fluid. The swabs revealed a single male contributor of DNA and, when the DNA profile from the swabs was entered into the Combined DNA Index System ("CODIS") database, it was matched to Smith's DNA profile.
L.T. testified she had never met Smith before. She acknowledged she was unable to identify her assailant in any photographic lineups. She also acknowledged she once emailed the detective on her case and informed him she had come to the conclusion her assailant was a man named Jaymo who had been her neighbor in Avenal approximately three years prior.
R.R. testified that Smith forcibly raped her in 2003, when she was 13 or 14 years old, after they met at a party and went for a walk to a local school. She returned to the party and reported the rape to other party-goers, and later reported the rape to the police.
Smith testified that he flirted with L.T. at a bar called Terry's on one or more occasions in January 2015 and ran into her at a house party later on one such night. According to Smith, he and L.T. left the party together and walked to a nearby elementary school where they talked, kissed, and had consensual sex. They then both left the school and had no subsequent contact with each other. Smith denied raping L.T.
L.T. testified she was not familiar with Terry's and had never been there.
DISCUSSION
I. Sufficiency of the Evidence
Smith contends the evidence is insufficient to support his conviction for kidnapping to commit rape, or to support the jury's true finding regarding the section 667.61, subdivision (d)(2) sentencing factor for rape with bodily injury. More specifically, he contends his movement of L.T. 13 to 15 feet was not substantial, was merely incidental to the rape, and did not increase the risk of harm to L.T. We disagree and find the evidence sufficient.
In reviewing the sufficiency of the evidence, " 'we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (Cravens, supra, 53 Cal.4th at p. 508.)
Aggravated kidnapping occurs when a person kidnaps another individual to commit specified crimes, including rape. (§ 209, subd. (b)(1).) Section 667.61 provides for increased punishment if a person commits certain felony sex offenses, including rape, and kidnaps the victim. (§ 667.61, subds. (b), (e)(1).) Section 667.61 provides for even greater punishment if the movement of the victim substantially increased the risk of harm to the victim beyond that necessarily inherent in the underlying offense. (§ 667.61, subds. (a), (d)(2).)
The asportation element of aggravated kidnapping requires movement of the victim that (1) is more than merely incidental to the underlying crime, and (2) increases the risk of physical or psychological harm to the victim beyond that inherent in the underlying crime. (§ 209, subd. (b)(2); People v. Nguyen (2000) 22 Cal.4th 872, 885-886 (Nguyen); People v. Martinez (1999) 20 Cal.4th 225, 232-233, overruled on another ground by People v. Fontenot (2019) 8 Cal.5th 57.) The asportation element of the section 667.61, subdivision (d)(2) sentencing allegation requires that "the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense." (§ 667.61, subd. (d)(2), emphasis added; People v. Perkins (2016) 5 Cal.App.5th 454, 466, fn. 4, italics added ["Since 1997, there is a difference in the asportation standards for the crime of aggravated kidnapping to commit ... rape and for aggravated kidnapping alleged as a one strike enhancement to a sex crime. The former requires a showing that the movement increased the risk of harm to the victim, while the latter requires a showing that the movement substantially increased the risk of harm to the victim."].)
In determining whether the movement of the victim was merely incidental to the commission of the underlying crime (§ 209, subd. (b)(2)), the jury must consider " 'the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred.' " (People v. Dominguez (2006) 39 Cal.4th 1141, 1151 (Dominguez).) This is a "multifaceted, qualitative evaluation" that is interrelated with the requirement that the movement increase the risk of harm to the victim. (Id. at p. 1152; People v. Rayford (1994) 9 Cal.4th 1, 12.) In determining whether the movement increased the risk of harm to the victim, the jury should consider the surrounding circumstances, such as "whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes." (Dominguez, supra, at p. 1152.) Furthermore, the increased risk may be of either physical or psychological harm. (Nguyen, supra, 22 Cal.4th at pp. 885-886).
Significantly, the measured distance of the movement, while relevant, is not dispositive. (Dominguez, supra, 39 Cal.4th at p. 1152.) "In some cases a shorter distance may suffice in the presence of other factors, while in others a longer distance, in the absence of other circumstances, may be found insufficient." (Ibid.) To illustrate this point, our Supreme Court has explained:
"For example, moving robbery victims between six and 30 feet within their home or apartment [citation] or 15 feet from the teller area of a bank to its vault [citation] may be viewed as merely incidental to the commission of the robbery and thus insufficient to satisfy the asportation requirement of aggravated kidnapping. Yet, dragging a store clerk nine feet from the front counter of a store to a small back room for the purpose of raping her [citation] or forcibly moving a robbery victim 40 feet within a parking lot into a car [citation] might, under the circumstances, substantially increase the risk of harm to the victim and thus satisfy the asportation requirement." (Dominguez, supra, 39 Cal.4th at p. 1152.)
In Dominguez, the defendant moved the rape victim, at night, 25 feet from a public road, down an embankment and into an orchard that was 10 to 12 feet below the level of a road, which "tended to obscure [the] defendant's crime from any onlookers." (Dominguez, supra, 39 Cal.4th at p. 1153.) "The movement thus changed the victim's environment from a relatively open area alongside the road to a place significantly more secluded, substantially decreasing the possibility of detection, escape or rescue." (Ibid.) The court concluded this movement could not be said to have been merely incidental to the rape. (Id. at p. 1154.) Furthermore, the evidence suggested the forced movement removed the victim from public view, and the court therefore concluded the movement substantially increased the risk of harm. (Ibid.; see People v. Hoard (2002) 103 Cal.App.4th 599, 607 (Hoard) ["[A] rape victim is certainly more at risk when concealed from public view and therefore more vulnerable to attack."].)
Here, the circumstances surrounding Smith's asportation and rape of L.T. are similar to those presented in Dominguez, supra, 39 Cal.4th at pages 1153-1154, and we similarly conclude the evidence is sufficient to support a finding that the movement of the victim was beyond that merely incidental to rape and substantially increased the risk of harm to her. Here, instead of raping L.T. on the public sidewalk where he found her (and where he was more likely to be discovered), Smith forcibly moved L.T. 13 to 15 feet, up a driveway and in between two vehicles, to an area L.T. described as being out of ready view from the street and surrounding houses. Although Smith did not move L.T. a great distance, the jury nonetheless reasonably could have found the movement significantly changed L.T.'s environment and increased the risk of harm by moving her out of public view and decreasing the possibility of detection or rescue.
Nevertheless, Smith relies on Hoard, a Court of Appeal decision that expressed the view that other courts of appeal had incorrectly "confuse[d] 'incidental' with 'necessary' " in the aggravated kidnapping context. (Hoard, supra, 103 Cal.App.4th at p. 605 [declining to follow People v. Salazar (1995) 33 Cal.App.4th 341, and People v. Shadden (2001) 93 Cal.App.4th 164].) In the view of the Hoard court, "incidental and necessary do not mean the same thing" and movement that facilitates the underlying crime is also incidental to the underlying crime. (Hoard, supra, at p. 606.) Thus, the Hoard court concluded that the defendant's movement of two jewelry store employees 50 feet into a back office during the commission of a robbery did not support aggravated kidnapping charges, even though the movement permitted the defendant free access to the store and concealed his actions from potential customers, because this movement "served only to facilitate the crime with no other apparent purpose." (Id. at p. 607, fn. omitted.) The court also found that, unlike a rape victim who is concealed from public view, the robbery victims "may have been at less risk tied up in the back office where they could not try to thwart the robbery than had they remained at gunpoint in the front of the store" and suffered no greater psychological trauma than would the victim of a "stationary robbery." (Ibid.)
The Hoard decision has been criticized by other courts. (E.g, People v. James (2007) 148 Cal.App.4th 446, 455 & fn. 8 [describing Hoard as relying on a "logical error" and finding asportation where defendant forced victim into bingo club to gain entry]; People v. Aguilar (2004) 120 Cal.App.4th 1044, 1050-1052 [finding asportation where defendant moved rape victim 133 feet to unlit area where less likely to be detected, noting that Hoard is not in harmony with Rayford, supra, 9 Cal.4th 1, and other case law regarding the asportation standard].) Additionally, Hoard's bright line rule (i.e., that movement which facilitates the underlying crime is also incidental to the underlying crime) is seemingly contrary to our Supreme Court's decision in Dominguez, which rejected any "simple verbal formulation that would apply to all cases." (Dominguez, supra, 39 Cal.4th at p. 1151.) Dominguez was decided by our Supreme Court in 2006, after the 2002 Court of Appeal decision in Hoard, and is, in any event, far more analogous to the instant case, as it concerns a defendant's movement of a victim to a more secluded outside area to commit a rape, rather than the movement of a victim within a store to commit a robbery. (Dominguez, supra, at p. 1154.)
Smith's reliance on People v. Williams (2017) 7 Cal.App.5th 644, which involved movement of a short distance during a kidnapping to commit robbery, is similarly misplaced. Kidnapping to commit robbery is not necessarily analogous to kidnapping to commit rape. In the "multifaceted, qualitative evaluation" proscribed by Dominguez, the jury must consider " 'the "scope and nature" of the movement,' " and " ' the context of the environment in which the movement occurred.' " (Dominguez, supra, 39 Cal.4th at pp. 1151-1152.) Certainly, the nature of the underlying offense is part of that context. Both Hoard and Dominguez recognized that moving a rape victim a short distance to an area obscured from public view may, in some circumstances, make the victim more vulnerable and increase the risk of harm. (Hoard, supra, 103 Cal.App.4th at p. 607; Dominguez at p. 1152.) For reasons we have already explained, we find the circumstances presented here to be sufficient.
The record contains substantial evidence from which a reasonable trier of fact could conclude beyond a reasonable doubt that the movement of L.T. was more than merely incidental to the rape, and substantially increased the risk of harm above and beyond that inherent in the crime of rape. Accordingly, we will affirm Smith's conviction on count 1 for aggravated kidnapping, as well as the jury's true finding on the section 667.61, subdivision (d)(2) sentencing factor for count 3. II. Senate Bill No. 1393
Smith's sentence includes a five year enhancement for a prior serious felony conviction under section 667, subdivision (a). Smith and the People agree that the matter must be remanded for the trial court to consider striking this enhancement pursuant to the discretion granted to the court by Senate Bill No. 1393.
Effective January 1, 2019, Senate Bill No. 1393 amended sections 667, subdivision (a)(1), and 1385, subdivision (b), to grant trial courts discretion to strike or dismiss the five year sentencing enhancement prescribed by section 667 for prior serious felony convictions. (Stats. 2018, ch. 1013, §§ 1-2.) The parties agree Senate Bill No. 1393 applies retroactively to all nonfinal judgments. Absent evidence to the contrary, it is presumed the Legislature intended a statutory amendment that reduces the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute's operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Consistent with the case law on this issue, we accept the parties' position and will remand the matter for the trial court to consider whether to exercise its discretion to strike Smith's prior serious felony conviction enhancement under sections 667, subdivision (a)(1), and 1385, subdivision (b). (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) III. Senate Bill No. 136
Smith's sentence includes two one-year prior prison term enhancements, one of which was stayed. Smith and the People agree that the one-year prior prison term enhancements must be stricken pursuant to Senate Bill No. 136.
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision (b) to provide that a one-year prior prison term enhancement will apply 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.) For the same reasons stated above with regard to Senate Bill No. 1393, we accept the parties' agreement regarding the retroactive application of Senate Bill No. 136.
Smith's prior convictions do not qualify as sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b). Accordingly, we will strike the two one-year prior prison term enhancements. The trial court will be directed to prepare an amended abstract of judgment reflecting this modification. IV. Fines and Fees
Smith contends the enhancements must be stricken and the matter remanded for resentencing. The People contend resentencing is unnecessary because the trial court imposed the maximum sentence available. The general rule is that a full resentencing is appropriate when part of a sentence is stricken on review. (People v. Buycks (2018) 5 Cal.5th 857, 893.) However, where, as here, the stricken sentence does not depend on the exercise of the trial court's sentencing discretion, and the court otherwise imposed the maximum sentence, resentencing is unnecessary. (Id. at p. 896, fn. 15.)
The court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)); a $10,000 parole revocation fine (§ 1202.45), that was stayed pending successful completion of parole; a $200 court security fee (§ 1465.8); and a $150 criminal conviction assessment (Gov. Code, § 70373). Smith did not object to these fines and fees in the trial court.
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Smith contends the fines and fees must be vacated or stayed because the People did not prove, and the court did not find, that he had the ability pay. The People contend Smith's failure to object in the trial court forfeits this claim on appeal.
Dueñas held that due process "requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Id. at p. 1164.) Dueñas additionally held that, "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 489-490 (Castellano) [following Dueñas but clarifying that "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court"]; contra, People v. Allen (2019) 41 Cal.App.5th 312, 326-330 [rejecting the defendant's Dueñas-based due process and equal protection claims]; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946 [rejecting Dueñas's due process analysis]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis and concluding constitutional challenge to fines, fees and assessments should be made under the Eighth Amendment's Excessive Fines Clause]); People v. Kopp (2019) 38 Cal.App.5th 47, 94-98 [rejecting applicability of Dueñas to punitive assessments], review granted Nov. 13, 2019, S257844.)
We conclude it is unnecessary to reach Smith's Dueñas claim given our remand of this matter under Senate Bill No. 1393. To the extent Smith believes Dueñas entitles him to any relief, he may request such relief in the trial court in the first instance. (Castellano, supra, 33 Cal.App.5th at pp. 489-490.)
DISPOSITION
Smith's two one-year prior prison term enhancements under section 667.5, subdivision (b) are stricken. The matter is remanded for the trial court to exercise its discretion under sections 667, subdivision (a)(1) and 1385, subdivision (b), as amended by Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2), and, if appropriate following exercise of that discretion, to resentence Smith accordingly. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SNAUFFER, J.