Opinion
F078271
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MICKEL BYAS, Defendant and Appellant.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Tia M. Coronado and Daniel B. Bernstein, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RF007939A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Kenneth Green, Judge. Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Tia M. Coronado and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Smith, J. and DeSantos, J.
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INTRODUCTION
On September 17, 2018, appellant Robert Mickel Byas was convicted of second degree robbery in violation of Penal Code section 212.5, subdivision (c), and grand theft in violation of section 487, subdivision (c). It was found true that he had prior serious felony convictions and had served prison terms for those offenses. The trial court imposed two 5-year prison terms pursuant to former section 667, subdivision (a), and a one-year prison term pursuant to section 667.5, former subdivision (b).
References to code sections are to the Penal Code. --------
Subsequent to sentencing and while this appeal was pending, Senate Bill Nos. 136 and 1393, amending sections 667, 667.5, and 1385, were enacted and became effective. Byas contends, and the People concede, these amendments are applicable to him. Consequently, we strike the section 667.5, subdivision (b) enhancement and remand for the trial court to exercise its discretion on the section 667, subdivision (a) enhancements.
FACTUAL AND PROCEDURAL SUMMARY
Because Byas does not challenge his convictions on the robbery and grand theft counts, we dispense with a recitation of the facts underlying the offenses.
On June 20, 2018, Byas was charged in count 1 with second degree robbery and in count 2 with grand theft. As to both counts, it was alleged that Byas had three prior strike convictions (§§ 667 & 1170.12), including one for an Oregon robbery conviction. It also was alleged as to both counts that Byas had served three prior prison terms within the meaning of section 667.5, former subdivision (b).
Byas was found guilty on both counts by a jury. Byas filed a motion challenging the Oregon conviction as a prior serious felony.
In a bifurcated bench trial, the People moved to dismiss the Oregon prior conviction allegations; the trial court granted the motion. The trial court then found true that Byas previously had been convicted of assault with a firearm in 2005 and robbery in 2006. The trial court also found true that Byas had served a prison term for each of these two offenses, plus a third prison term for a vehicle theft conviction in 2013.
Prior to sentencing, Byas filed a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to dismiss his 2005 prior strike conviction in the interest of justice because it was 13 years old. On the day of the sentencing hearing, he also filed a motion for new trial. The People filed written opposition to the Romero motion and orally opposed the new trial motion.
The probation report detailed Byas's criminal history. The probation officer found no factors in mitigation. The probation report identified three factors in aggravation: Byas's criminal history; that he was on misdemeanor probation at the time of the current offenses; and his performance on probation had been unsatisfactory.
At the October 10, 2018 sentencing hearing, the trial court denied both the new trial motion and the Romero motion. The trial court proceeded to sentence Byas to a term of 25 years to life on the robbery conviction, pursuant to "Three Strikes"; an additional five-year term for each of the three prior serious felony convictions; and an additional one-year term for the prior prison term served for the 2013 vehicle theft conviction. A six-year term was imposed and stayed for the grand theft conviction. The aggregate term of imprisonment imposed was 41 years to life.
On October 17, 2018, the trial court recalled the sentence to correct a sentencing error. The trial court had erroneously imposed a five-year prison term for the dismissed enhancement based on the Oregon robbery conviction. Accordingly, the trial court modified the sentence to reflect two 5-year enhancements for prior felony convictions, which reduced the aggregate term of imprisonment to 36 years to life.
The corrected abstract of judgment was filed on October 18, 2018, and the trial court stayed imposition of punishment on several section 667.5 enhancements. Byas filed a timely notice of appeal on November 5, 2018.
DISCUSSION
Subsequent to sentencing and while this appeal was pending, Senate Bill Nos. 136 and 1393, amending sections 667, 667.5, and 1385, were enacted and became effective. Byas contends, and the People concede, these amendments are applicable to him.
I. Senate Bill No. 136
We agree with the parties that the prior prison term enhancement that was imposed pursuant to section 667.5, former subdivision (b) must be stricken. In addition, however, the prior prison term enhancements that were stayed must be stricken.
Byas committed the present offenses in 2018 and he was sentenced in October 2018. In October 2019, the Governor signed into law Senate Bill No. 136 (2019-2020 Reg. Sess.), effective January 1, 2020. (People v. Lopez (2019) 42 Cal.App.5th 337, 340.) This amended section 667.5, subdivision (b), which deals with prior prison term enhancements. (Stats. 2019, ch. 590, § 1.) Following the amendment, prior prison term enhancements only occur if the prior prison term was for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Lopez, supra, 42 Cal.App.5th at pp. 340-341.)
None of Byas's prior prison terms were for sexually violent offenses. The parties agree this amendment applies retroactively to Byas because his judgment is not yet final. (See In re Estrada (1965) 63 Cal.2d 740, 744.)
An unauthorized sentence is one that cannot lawfully be imposed. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 6.) An unauthorized sentence is subject to judicial correction. (People v. Dotson (1997) 16 Cal.4th 547, 554.) The section 667.5 enhancement no longer applies, except to prison terms served for sexually violent offenses. None of Byas's prior prison terms were for sexually violent offenses and consequently, we will strike the enhancements under section 667.5, former subdivision (b), both the one that was imposed and the ones that were stayed.
II. Senate Bill No. 1393
When sentenced in this matter, the trial court did not have authority to strike the prior serious felony enhancements found true under former section 667, subdivision (a). (See People v. Jones (2019) 32 Cal.App.5th 267, 272.)
Byas asserts a remand is required in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.). This legislation amended sections 667 and 1385 to provide trial courts with discretion to strike five-year former section 667, subdivision (a) sentencing enhancements based on prior serious felony convictions. (People v. Kelly (2019) 32 Cal.App.5th 1013, 1015-1016.)
Senate Bill No. 1393, signed into law on September 30, 2018, amended sections 667 and 1385 to provide the trial court with discretion to dismiss, in furtherance of justice, five-year enhancements imposed pursuant to former section 667, subdivision (a)(1). The new law took effect on January 1, 2019. (Stats. 2018, ch. 1013, §§ 1-2.) The law is applicable to those parties, like Byas, whose appeals were not final on the law's effective date. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-309; People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada, supra, 63 Cal.2d at p. 744.)
Here, the trial court imposed five-year prior serious felony enhancements to Byas's sentence pursuant to former section 667, subdivision (a). Byas seeks remand to permit the trial court to review these five-year prior serious felony enhancements in light of Senate Bill No.1393. The People agree Byas is entitled to remand on that basis.
When a court is unaware of the scope of its discretionary powers, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The record before us does not reflect the trial court knew it had discretion to strike the former section 667, subdivision (a) enhancements; nor does it reflect a clear indication by the trial court that it would not have struck one or both of these enhancements if it had discretion to do so. Indeed, the trial court noted the enhancements had been found true, referenced the code section, and imposed the five-year terms without further comment.
Accordingly, we accept the People's concession and remand this matter for a resentencing hearing to permit the trial court to exercise its discretion regarding whether to strike one or both of these enhancements.
DISPOSITION
We strike the section 667.5, former subdivision (b) enhancements, affirm the convictions and true findings in all other respects, and remand to allow the trial court to exercise its discretion under sections 667 and 1385 to strike one, both, or neither of the former section 667 enhancements, and for preparation of an amended abstract of judgment.