Opinion
A159135
07-08-2020
THE PEOPLE, Plaintiff and Respondent, v. ISAIAH ALEXANDER BENNETT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR19328371)
Defendant Isaiah Alexander Bennett seeks only the striking of a one-year prior prison term enhancement from his eight-year sentence, pursuant to Senate Bill No. 136, enacted subsequent to the imposition of defendant's sentence but before the judgment became final, to which the Attorney General agrees he is entitled.
On October 2, 2019, pursuant to a plea agreement under which other charges were dismissed, defendant pled no contest to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); he admitted inflicting great bodily injury under section 12022.7, subdivision (a) and one prior prison term pursuant to section 667.5, subdivision (b). The stipulated prison term was a maximum of eight years in state prison: the aggravated four-year term for the offense, plus three years for the great bodily injury allegation, and one year for the prison prior per section 667.5, subdivision (b).
All statutory references are to the Penal Code. --------
Senate Bill No. 136, which became effective January 1, 2020, rendered the one-year prior prison term enhancement set forth in section 667.5, subdivision (b), which was previously applicable to all prior prison terms, applicable only to a prior separate prison term for a sexually violent offense. (Stats. 2019, ch. 590, § 1.) The Attorney General agrees that the amendment to section 667.5 applies retroactively to sentences not final at the time of its enactment (In re Estrada (1965) 63 Cal.2d 740, 748) and that defendant is entitled to the benefit of the amendment, notwithstanding his failure to obtain a certificate of probable cause. (People v. Stamps (June 25, 2020, S255843) ___ Cal.5th ___ .) The Attorney General also agrees that since defendant received the upper term on his offense and the only term available under section 12022.7, subdivision (a), there are no other sentence elements once the prior prison term enhancement is stricken, so there is no discretion remaining to be exercised and this court should simply strike the one-year enhancement.
Therefore, defendant's conviction is affirmed, but the one-year term imposed pursuant to section 667.5, subdivision (b) is hereby stricken. The superior court is directed to modify the abstract of judgment accordingly.
POLLAK, P. J. WE CONCUR: STREETER, J.
TUCHER, J.