Opinion
C085301
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER WILLIAM CLARK, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NCR96565)
Defendant Christopher William Clark robbed a store employee and later pleaded guilty to robbery with a prior strike and two prior serious felony convictions. Pursuant to the terms of the plea agreement, defendant was sentenced to 20 years in state prison.
On appeal, defendant contends the matter must be remanded to allow the trial court to exercise newly-granted discretion under Senate Bill No. 1393 (S.B. 1393) to strike one or both of his prior serious felony conviction enhancements. The People agree remand is appropriate. We shall remand the matter so the trial court may consider exercising its discretion to strike the prior serious felony enhancements imposed under Penal Code section 667, subdivision (a); statutory section references that follow are to the Penal Code unless otherwise noted.
FACTS AND PROCEEDINGS
The facts underlying defendant's robbery conviction are not relevant to the issue raised on appeal. Briefly summarized, in December 2015 defendant took property from an employee of the Tractor Supply Store by means of force and fear.
In March 2016, defendant was charged with robbery (§ 211). The information alleged that he had three prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), three prior serious felony convictions (§ 667, subd. (a)(1)), and had served one prior prison term (§ 667.5, subd. (b)).
In January 2017, defendant pleaded guilty to robbery, and admitted one prior strike and two prior serious felony convictions in exchange for a potential maximum term of 20 years in state prison. The trial court sentenced defendant to the upper term of five years for the robbery, doubled to 10 years for the strike prior, plus five years for each of the prior serious felony convictions for a total aggregate sentence of 20 years. The remaining strike and prior prison term allegations were dismissed. Defendant appealed, and the court granted his request for a certificate of probable cause.
DISCUSSION
At the time defendant was sentenced, the court had no discretion to strike either of his prior serious felony enhancements imposed under section 667, subdivision (a). (See former §§ 667, subd. (a); 1385, subd. (b).) On September 30, 2018, however, the Governor signed S.B. 1393, which amended section 667, subdivision (a) and section 1385, subdivision (b) to give the court discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) The statutory amendments became effective January 1, 2019. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a); People v. Cambra (1996) 50 Cal.App.4th 857, 865.)
Defendant argues, and the People concede, that the amendments apply retroactively in this case because defendant's judgment was not final when S.B. 1393 went into effect. We agree. (See People v. Jones (2019) 32 Cal.App.5th 267, 273 [concluding S.B. 1393 applies retroactively to a judgment not final on the amendment's effective date].)
Because neither party argues that a remand would be futile (cf. People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [remand under analogous S.B. 620 is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so]), defendant should have an opportunity to argue to the trial court that it should exercise its newly-granted discretion to strike the prior serious felony enhancement. We therefore remand for this purpose.
DISPOSITION
Defendant's conviction is affirmed. The matter is remanded so the trial court may decide whether to exercise its discretion under S.B. 1393 to strike one or both of defendant's prior serious felony enhancements imposed under section 667, subdivision (a).
/s/_________
HULL, Acting P. J. We concur: /s/_________
ROBIE, J. /s/_________
MAURO, J.