Opinion
B303531
06-17-2021
THE PEOPLE, Plaintiff and Respondent, v. JOHN LEE ALEXANDER, Defendant and Appellant.
Linda L. Gordon, 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, Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA149175 Roger Ito, Judge. Affirmed as modified.
Linda L. Gordon, 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, Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
John Lee Alexander appeals from a judgment entered after a jury convicted him of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and in a bifurcated proceeding found true that Alexander had suffered convictions of two serious or violent felonies (robbery and first degree burglary) under the three strikes law (§§ 667, subds. (b)-(j), 1170.12) and a serious felony conviction within the meaning of section 667, subdivision (a)(1) (robbery). The jury also found true that Alexander had served five prior prison terms within the meaning of section 667.5, subdivision (b), including three convictions of second degree burglary (§ 459) and two convictions of petty theft with a prior (§ 666).
Further statutory references are to the Penal Code.
At trial, Jorge Vasquez Trujillo testified Alexander struck him on the left side of his body with a stick as Trujillo was riding his bike through a crosswalk. After Trujillo fell down, he looked up and saw Alexander holding a stick in each hand as he yelled at Trujillo. Trujillo did not understand most of what Alexander said in English. Trujillo suffered a bruise on his left ribs that went away after three or four weeks.
On November 20, 2019 the trial court sentenced Alexander to 18 years in state prison, comprised of the upper term of four years for assault with a deadly weapon, doubled under the three strikes law, plus five years for the enhancement under 667, subdivision (a)(1), plus five 1-year enhancements under section 667.5, subdivision (b).
The trial court granted Alexander's request to strike one of his two prior strike convictions.
Alexander's sole contention on appeal is that we should strike the five 1-year sentence enhancements imposed under section 667.5, subdivision (b). Alexander contends, the People concede, and we agree all five 1-year enhancements must be stricken. Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b), to provide for a one-year prior prison term sentence enhancement only for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Matthews (2020) 47 Cal.App.5th 857, 862; People v. Gastelum (2020) 45 Cal.App.5th 757, 772; People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Senate Bill No. 136 applies retroactively to Alexander because his sentence was not final at the time the new law became effective on January 1, 2020. (People v. Winn (2020) 44 Cal.App.5th 859, 872 [“Because [defendant's] conviction is not yet final, he is entitled to the retroactive benefit of the change in law.”]; Jennings, at p. 682 [“Senate Bill No. 136's (2019-2020 Reg. Sess.) amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date.”]; see In re Estrada (1965) 63 Cal.2d 740, 744-745.)
Because Alexander's prior convictions were for second degree burglary and petty theft with a prior, which are not sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b), the one-year enhancements under section 667.5, subdivision (b), must be stricken. (People v. Smith (2020) 46 Cal.App.5th 375, 396; People v. Gastelum, supra, 45 Cal.App.5th at p. 772.)
DISPOSITION
The judgment is modified to strike the five 1-year sentence enhancements under section 667.5, subdivision (b). As modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J., SEGAL, J.