Opinion
C089039
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JORDAN TIMOTHY ADERS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF07506)
The parties have jointly requested that this court: (1) grant calendar preference and expedited review; (2) strike defendant's, Jordan Timothy Aders, one-year prior prison term enhancement; and (3) immediately issue the remittitur. The motion is granted, the one-year prior enhancement is stricken, and remittitur shall issue immediately. As modified, the judgment is affirmed.
FACTS AND PROCEEDINGS
In exchange for dismissal of two felony drug counts (Health & Saf. Code, §§ 11378, 11377, subd. (a)—counts I & III), two misdemeanor counts (Health & Saf. Code, § 11364, subd (a) & Pen. Code, § 148.9, subd. (a)—counts IV & V), and one prior prison term allegation (Pen. Code, § 667.5, subd. (b)), defendant pleaded no contest to transportation of methamphetamine for sale (Health & Saf. Code, § 11379 subd. (a)—count II) and admitted serving a prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to the upper term of four years on count II plus one year on the prior prison term enhancement.
Defendant appealed the judgment contending his one-year sentence enhancement for a prior prison term must be stricken pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended Penal Code section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1), narrowing eligibility for a one-year prior prison term sentencing enhancement. The People agreed.
DISCUSSION
The parties now seek to modify the judgment by stipulation to reflect defendant's term without his prior prison term enhancement. This court may reverse or modify a judgment pursuant to stipulation only in accordance with the requirements set forth in Code of Civil Procedure section 128, subdivision (a)(8). That section requires us to make specific findings that (1) there is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal, and (2) the grounds for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement. (Ibid.) Our authority to reverse or modify a judgment pursuant to stipulation is similarly limited in civil and criminal cases. (People v. Browning (1978) 79 Cal.App.3d 320, 323, citing Landberg v. Landberg (1972) 24 Cal.App.3d 742, 746.)
We find that the requirements of Code of Civil Procedure section 128, subdivision (a)(8) are satisfied here. The parties' stipulation supports the conclusion that there is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the modification of the judgment because the modification is based on a new and dispositive change in law requiring that defendant's sentence for the prior prison term enhancement be vacated. (See Pen. Code, § 667.5, subd. (b).) Further, the grounds for requesting the modification of judgment outweigh the erosion of public trust that may result from the nullification of a judgment or the risk that a stipulated modification of the judgment in this case will reduce the incentive for pretrial settlement in future cases of this nature. There is no question that defendant is entitled to relief under the newly amended Penal Code section 667.5 and modifying the judgment will result in a just and speedy determination of the cause pending before this court.
DISPOSITION
Pursuant to Penal Code section 1260, good cause being shown by stipulation of the parties, the judgment is modified to strike the one-year prior prison term enhancement imposed pursuant to Penal Code section 667.5, subdivision (b). The judgment is affirmed as modified.
The superior court is directed to amend the abstract of judgment to reflect the modified sentence and to transmit the amended abstract of judgment to the Department of Corrections and Rehabilitation. Pursuant to stipulation of the parties, this opinion is final for all purposes immediately upon filing, and the clerk of this court is directed to immediately issue the remittitur upon filing of the opinion. (Cal. Rules of Court, rule 8.272(c)(1).)
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
KRAUSE, J.