Opinion
B296796
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN DION WILLIAMS, Defendant and Appellant.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA117631) APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Reversed. Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.
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Kevin Dion Williams appeals after being convicted by a jury, asserting as the only ground of error that a portion of his sentence is improper under Penal Code section 667.5, subdivision (b). Respondent agrees, as does this Court. We reverse and remand for resentencing.
FACTUAL SUMMARY
Williams was charged with a single count of grand theft. (Pen. Code, § 487, subd. (a).) The information alleged a serious felony prior (§§ 1170, subds. (h)(3) and 667.5, subd. (c)); a prison prior for grand theft (§ 487, subd. (a) and 667.5, subd. (b)); and four probation priors (§ 1203, subd. (e)(4)).
All further statutory references, unless otherwise noted, are to the Penal Code.
At trial, the jury convicted Williams, and the trial court denied his motion to strike his serious felony prior. The trial court sentenced Williams to a five-year term: the midterm of two years, doubled plus one year, consecutive, for the prison prior. Williams appealed, challenging the imposition of the term for the prison prior.
Because the only issue presented on appeal pertains to the prison prior, the facts of the underlying offense are not relevant.
DISCUSSION
In 2019, the Legislature amended section 667.5, subdivision (b), limiting the imposition of one-year prison priors, except where the new offense is a specified violent felony, to cases where the prison prior was for a sexually violent offense. (Welf. & Inst. Code, §6600; Sen. Bill 136, Stats. 2019, ch. 590, §1.) The amendment became effective on January 1, 2020, while this appeal was pending.
Williams argues that, because his current offense is not one of the specified violent felonies, and his prison prior was not a sexually violent offense, imposition of the one year prison prior is not valid. He asks this court to remand his case to the trial court to strike that portion of the sentence and to resentence him in accordance with the law. Respondent concedes this is appropriate, and we agree.
The Supreme Court held, in In re Estrada (1965) 63 Cal.2d 740, 744, that unless the Legislature specifies otherwise, a circumstance not present here, amendments to statutes that reduce the penalty for a crime apply to defendants whose judgments are not final on the effective date of the statute: "If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies." (See also People v. Brown (2012) 54 Cal.4th 314, 323-324; People v. Vieira (2005) 35 Cal.4th 264, 305-306 [remanding for resentencing after a statutory amendment permitted the trial court to consider defendant's ability to pay in setting restitution fine under section 1202.4].)
Because Williams's conviction was not final on January 1, 2020, he is entitled to remand. The trial court shall strike the enhancement and reconsider Williams's sentence. (See People v. Hill (1986) 185 Cal.App.3d 831, 834 [on remand for resentencing trial court may consider all sentencing choices].)
DISPOSITION
The judgment is reversed and the matter remanded for the trial court to strike the one year prison prior enhancement, and to resentence Williams.
ZELON, Acting P. J. We concur:
SEGAL, J.
FEUER, J.