Opinion
C089634
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN CANNON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18FE000903) ORDER GRANTING CALENDAR PREFERENCE, EXPEDITING REVIEW, STRIKING TWO ONE-YEAR PRIOR PRISON TERM ENHANCEMENTS, AND IMMEDIATELY ISSUING REMITTITUR THE COURT:
The parties' motion to: (1) grant calendar preference and expedite review; (2) strike appellant's two one-year prior prison term enhancements; and (3) immediately issue the remittitur is granted.
In light of Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended Penal Code section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1), narrowing eligibility for a one-year prior prison term, the parties now seek to modify the judgment by stipulation to reflect defendant's term without his two prior prison term enhancements. This court may reverse or modify a judgment pursuant to stipulation in accordance with the requirements set forth in Code of Civil Procedure section 128, subdivision (a)(8). That section requires us to make specific findings that: (1) there is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal; and (2) the grounds for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement. (Ibid.) Our authority to reverse or modify a judgment pursuant to stipulation is similarly limited in civil and criminal cases. (People v. Browning (1978) 79 Cal.App.3d 320, 323, citing Landberg v. Landberg (1972) 24 Cal.App.3d 742, 746.)
We find that the requirements of Code of Civil Procedure section 128, subdivision (a)(8) are satisfied here. The parties' stipulation supports the conclusion that there is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the modification of the judgment because the modification is based on a new and dispositive change in law requiring that defendant's sentence for the prior prison term enhancements be vacated. (See Pen. Code, § 667.5, subd. (b).) Further, the grounds for requesting the modification of judgment outweigh the erosion of public trust that may result from the nullification of a judgment or the risk that a stipulated modification of the judgment in this case will reduce the incentive for pretrial settlement in future cases of this nature. There is no question that defendant is entitled to relief under the newly amended Penal Code section 667.5, and modifying the judgment will result in a just and speedy determination of the cause pending before this court.
Pursuant to Penal Code section 1260, good cause being shown by stipulation of the parties, the judgment is modified to reflect the following sentence: three years in prison on count one, and three year concurrent terms on counts two and three. The judgment is affirmed as modified. The superior court is directed to amend the abstract of judgment to reflect the modified sentence and to transmit the amended abstract of judgment to the Department of Corrections and Rehabilitation. The clerk of this court is directed to immediately issue the remittitur upon filing of the opinion. (See Cal. Rules of Court, rule 8.272(c)(1).) BY THE COURT: /s/_________
Robie, Acting P. J. /s/_________
Mauro, J. /s/_________
Hoch, J.