Opinion
A153134
01-30-2020
THE PEOPLE, Plaintiff and Respondent, v. CHARLES ALLEN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN226594)
This case is before us following a grant of review and transfer by the California Supreme Court. We complied with the Court's order directing us to vacate our prior decision and reconsider the cause in light of Senate Bill No. 136 (Stats. 2019, ch. 590). We now strike the prior prison term enhancements imposed on Allen and remand to the trial court for resentencing.
BACKGROUND
A jury found Allen guilty of two counts of attempted indecent exposure with priors and the court found true four prior prison terms under Penal Code section 667.5, subdivision (b) and one prior strike conviction. The court imposed the mid-term sentence for count one and one-third of the mid-term for count two, each doubled as a result of the strike conviction, imposed one-year consecutive terms for three of the four prior prison terms, and stayed the fourth prison prior, for a total sentence of five years, eight months.
Further statutory citations are to the Penal Code. --------
We affirmed the judgment in People v. Allen (2019) (Sept. 30, 2019, A153134)[nonpub. opn.](Allen I). Just eight days later, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.) into law effective January 1, 2020, amending section 667.5, subdivision (b). Prior to the amendment, section 667.5, subdivision (b) required the trial court to "impose a one-year term for each prior separate prison term" the defendant had served unless the offender was free from custody without committing a new felony for at least five years. Under Senate Bill No. 136, prior prison term enhancements can be imposed only if the prior prison term was "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code[.]" (Senate Bill No. 136, § 1.)
Allen filed a petition for writ of habeas corpus in the Supreme Court asserting his three prior prison term enhancements must be stricken under section 667.5 as amended by Senate Bill No. 136. The Court construed the petition as a supplement to Allen's petition for review, granted the supplemented petition, and transferred the matter to this court with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 136. We do so now, and conclude the enhancements imposed under the former version of section 667.5, subdivision (b) must be stricken. Both parties agree, correctly, that Senate Bill No. 136 applies to non-final judgments (In re Estrada (1965) 63 Cal.2d 740, 742; People v. Lopez (2019) 42 Cal.App.5th 337 (Lopez)), that Allen's judgment is not final, and that his prior prison terms were not imposed for sexually violent offenses. Accordingly, he is entitled to relief.
The only remaining question concerns the appropriate remedy. Allen asserts the three years of his sentence attributable to his prior prison term enhancements must be stricken. The People maintain the proper remedy is to strike the enhancements and remand for resentencing, so that the trial court may exercise all of its discretionary sentencing choices. We agree with the People. "When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." (People v. Hill (1986) 185 Cal.App.3d 831, 834; cf. Lopez, supra, 42 Cal.App.5th 337 [striking enhancements rather than remanding for resentencing because trial court imposed the maximum possible sentence, leaving no room for the court to exercise discretion on remand].)
DISPOSITION
The enhancements imposed under section 667.5, subdivision (b) are stricken and the matter is remanded to the trial court with directions to resentence Allen and amend the abstract of judgment. The judgment is affirmed in all other respects for the reasons stated in Allen I.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Jackson, J.