Opinion
C090317
03-09-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN DANIEL DILL, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CF00320)
On March 3, 2020, counsel for defendant filed a motion for calendar preference and stipulation to resolve the appeal. The parties jointly requested that this court: (1) grant calendar preference and expedited review; (2) strike defendant's one-year prior prison term enhancement; (3) waive all claims on appeal; and (4) immediately issue the remittitur. The motion is granted and the judgment is affirmed as modified.
BACKGROUND
In exchange for dismissal of a prior serious felony conviction allegation, defendant Kevin Daniel Dill pleaded no contest to felony vandalism and admitted a prior prison term enhancement. He was sentenced on August 14, 2019, to an aggregate term of three years in prison: the midterm of two years for the vandalism plus one year for the prior prison term. The trial court also awarded defendant 429 days of conduct credit.
Defendant timely appealed, raising two claims: (1) that the trial court erred when it elected not to exercise its discretion to grant his petition for mental health diversion pursuant to Penal Code section 1001.36, and (2) that his one-year sentencing enhancement for a prior prison term must be stricken pursuant to 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 sentencing enhancement.
DISCUSSION
The parties now seek to modify the judgment by stipulation to strike defendant's prior prison term enhancement. This court may reverse or modify a judgment pursuant to stipulation only 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 enhancement 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. Accordingly, we shall grant the motion.
DISPOSITION
Pursuant to Penal Code section 1260, good cause being shown by stipulation of the parties, the judgment is modified to strike the one-year prior prison term enhancement imposed pursuant to Penal Code section 667.5, subdivision (b). All remaining appellate claims are deemed waived, including but not limited to the right to seek direct appellate review in any higher court. 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 a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The clerk of this court is directed to issue the remittitur immediately upon the filing of this opinion. (See Cal. Rules of Court, rule 8.272(c)(1).)
/s/_________
Duarte, J. We concur: /s/_________
Butz, Acting P. J. /s/_________
Hoch, J.