Opinion
A159492
03-24-2021
THE PEOPLE, Plaintiff and Respondent, v. EARNEST LEE WOODARD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17SF005470A)
A jury convicted Earnest Lee Woodard of one count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and one count of possession for sale of heroin (Health & Saf. Code, § 11351). Woodard admitted that he had served three prior terms in prison, which triggered three one-year enhancements under Penal Code section 667.5, subdivision (b).
In November 2019, the trial court sentenced Woodard to four years in county jail under Penal Code section 1170, subdivision (h). The court arrived at this sentence by imposing the low term of two years for the count of possession for sale of cocaine base under Health and Safety Code section 11351.5 and a consecutive low term of two years for the count of possession for sale of heroin under Health and Safety Code section 11351. The trial court stayed the three prior prison term enhancements.
Senate Bill No. 136 (2019-2020 Reg. Sess.) became effective between the time of Woodard's sentence and the time he filed his notice of appeal. Senate Bill No. 136 amended Penal Code section 667.5, subdivision (b) (Stats. 2019, ch. 590, § 1) to permit one-year enhancements for prior prison terms only if the prior term was for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
Woodard argues he is entitled to the retroactive application of Senate Bill No. 136's (2019-2020 Reg. Sess.) amendment to Penal Code section 667.5, subdivision (b) because his case was not yet final when Senate Bill No. 136 took effect. He asserts he did not serve his prior prison terms for sexually violent offenses and contends we should strike the prior prison term enhancements that the trial court stayed. He also argues his four-year sentence is unlawful because the trial court imposed two low-term sentences for the two counts of his conviction, rather than imposing the low-term sentence for one count and one-third of the middle term sentence for his second count. He asks us to modify the sentence to reduce the sentence for one of the counts to one year in county jail.
The People concede that Woodard is entitled to the retroactive benefit of Senate Bill No. 136 (2019-2020 Reg. Sess.) and that his stayed prior prison term enhancements should be reversed without the need for resentencing on those enhancements. The People also concede that Woodard's four-year sentence is unlawful. However, the People argue we should remand the matter to the trial court for resentencing on the substantive counts rather than amending the judgment ourselves.
We agree with the parties that Woodard is entitled to have his prior prison terms struck. Senate Bill No. 136 (2019-2020 Reg. Sess.) applies retroactively to defendants whose cases were not yet final when the statute took effect on January 1, 2020. (People v. Cruz (2020) 46 Cal.App.5th 715, 738-739.) The convictions that Woodard admitted for the enhancements under Penal Code section 667.5, subdivision (b) were not for offenses listed in Welfare and Institutions Code section 6600, subdivision (b). The prior prison term enhancements must therefore be stricken under Penal Code section 667.5, subdivision (b), as amended.
We also agree that Woodard's sentence on the two counts of conviction is unlawful. When a trial court imposes consecutive sentences for two or more felonies, Penal Code section 1170.1, subdivision (a) defines the total aggregate sentence as the sum of the principal term, which is the greatest term that the court imposes for any of the crimes, and the subordinate term for any other crimes. A trial court must calculate the length of each subordinate term by taking one-third of the middle term of imprisonment specified for the offense. (Pen. Code, § 1170.1, subd. (a).) Here, both of Woodard's offenses subjected him to imprisonment for two, three, or four years. (Health & Saf. Code, §§ 11351, 11351.5.) The trial court imposed a sentence of two years for each offense. Regardless of which offense is viewed as the subordinate offense, the proper length of the subordinate term should have been one-third of the middle term of three years, or one year. The trial court's four-year sentence is therefore unauthorized.
The proper remedy for this error is to remand the case to the trial court for resentencing. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.)
DISPOSITION
The judgment is reversed. On remand, the trial court shall strike the stayed enhancements under Penal Code section 667.5, subdivision (b) and resentence Woodard in accordance with Penal Code section 1170.1, subdivision (a) and this opinion.
BROWN, J. WE CONCUR: POLLAK, P. J.
TUCHER, J.