Opinion
2d Crim. No. B306791
05-18-2021
THE PEOPLE, Plaintiff and Respondent, v. MANUEL BUSANE, Defendant and Appellant.
Maggie Shrout, 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 Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. LA078878)
(Los Angeles County)
Manuel Busane appeals after the trial court declined to resentence him on remand from his first appeal. He contends: (1) a second remand is required for the court to exercise its discretion to strike or impose the four five-year serious felony enhancements to his sentence (Pen. Code, § 667, subd. (a)), and (2) the six one-year prior prison term enhancements to his sentence must be stricken (§ 667.5, subd. (b)). We vacate Busane's sentence and remand.
Unlabeled statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
A jury convicted Busane of two counts of lewd acts on a child (§ 288, subd. (a)) and two counts of forcible lewd acts on a child (id., subd. (b)(1)), and found true allegations that he committed his crimes against multiple victims (§ 667.61, subds. (b), (c)(4) & (8), (e)(4)). (People v. Busane (Feb. 11, 2019, B283564) 2019 WL 513586 at p. *1 (Busane) [nonpub. opn.].) The trial court subsequently found true allegations that Busane suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)), and that he served five prior prison terms (§ 667.5, subd. (b)). (Busane, at p. *1.) It sentenced him to a total of 116 years to life in state prison: 15 years to life on each forcible lewd acts conviction, tripled to 45 years because of the prior strikes, an additional 10 years on each conviction for the prior serious felonies, and an additional three years on each conviction for three of the five prior prison terms. (Id. at p. *2.) The sentence thus included 20 years for the prior serious felonies and six years for the prior prison terms. (Ibid.; cf. People v. Jones (1993) 5 Cal.4th 1142, 1149-1150 [sentence on each conviction cannot be enhanced for both prior serious felonies and prior prison terms imposed for committing those felonies].)
Sentences on Busane's lewd acts on a child convictions were stayed pursuant to section 654. (Busane, supra, 2019 WL 513586 at p. *2.) --------
We reversed Busane's lewd acts on a child convictions and remanded the case with directions that the trial court hold a hearing to exercise its newfound discretion to strike or impose the prior serious felony enhancements. (Busane, supra, 2019 WL 513586 at p. *6.) On remand, the trial court conducted a hearing at which it declined to strike Busane's prior strike convictions, but it did not consider whether to strike the prior serious felony enhancements.
DISCUSSION
Prior serious felony sentence enhancements
Busane contends, and the Attorney General concedes, that the case must be remanded once again for the trial court to exercise its discretion to strike or impose the four five-year serious felony enhancements to his sentence. We agree.
"When there has been a decision [on] appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur." (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.) The terms of the remittitur issued after Busane's first appeal directed the trial court hold a hearing to decide whether to strike or impose the serious felony enhancements. At that hearing the court declined to strike Busane's prior strike convictions, but did not consider whether to exercise its discretion to strike or impose the serious felony enhancements. And at no point during the hearing did the court "'clearly indicate'" that it would have imposed those enhancements "'even if it had been aware that it had . . . discretion'" to strike them. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391, alterations omitted.) A second remand is therefore required. (Ibid.; see also Hampton, at p. 655 [trial court actions that do not conform to appellate court's directions are void].)
Prior prison term sentence enhancements
Based on an intervening change in the law occurring after we resolved his first appeal, Busane now contends, and the Attorney General again concedes, that the six one-year prior prison term enhancements must be stricken from his sentence. We agree.
Effective January 1, 2020, a trial court may impose a prior prison term sentence enhancement only if the defendant served their prison term for a sexually violent offense. (People v. Jennings (2019) 42 Cal.App.5th 664, 681; see § 667.5, subd. (b).) The amended version of section 667.5, subdivision (b), applies retroactively to cases that are not yet final on appeal. (Jennings, at pp. 681-682.)
Busane served three prior prison terms for non-serious felonies: petty theft with a prior (§ 666), possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and transportation or sale of a controlled substance (Health & Saf. Code, § 11352.) His case is not yet final. The prior prison term enhancements previously imposed (three years on each of two convictions) must therefore be stricken from his sentence.
DISPOSITION
Busane's sentence is vacated, and the matter is remanded to the trial court with directions to: (1) exercise its discretion to strike or impose the four five-year prior serious felony enhancements to Busane's sentence, and (2) strike the six one-year prior prison term enhancements from Busane's sentence. The court shall then resentence Busane "'in light of the changed circumstances.' [Citations.]" (People v. Buycks (2018) 5 Cal.5th 857, 893.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J. We concur:
GILBERT, P. J.
YEGAN, J.
Michael V. Jesic, Judge
Superior Court County of Los Angeles
Maggie Shrout, 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 Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.