Opinion
B299450
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN ESPINOZA, Defendant and Appellant.
Katharine Eileen Greenbaum 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 David E. Madeo, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA473881) APPEAL from an order of the Superior Court of Los Angeles County, Leslie A. Swain, Judge. Affirmed. Katharine Eileen Greenbaum 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 David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Kevin Espinoza appeals his convictions for injuring a girlfriend after a prior conviction, and assault by means of force likely to produce great bodily injury. His sole claim on appeal is that the two prior prison term enhancements he admitted under Penal Code section 667.5, subdivision (b), must be stricken in light of Senate Bill 136. However, as defendant acknowledges, the trial court did not impose those enhancements. Therefore, we cannot offer him any relief on appeal. The judgment is affirmed.
All subsequent statutory references are to the Penal Code unless indicated otherwise.
FACTS AND PROCEDURAL BACKGROUND
In April 2019, a jury convicted defendant of injuring a girlfriend after a prior conviction (count 1), and assault by means of force likely to produce great bodily injury (count 2). Pursuant to section 667 subdivisions (a)(1) and (b)-(i), and the version of section 667.5 then in effect, defendant admitted that he had one prior serious or violent felony strike conviction, one prior serious felony conviction, and served two prior prison terms.
On May 13, 2019, the trial court sentenced defendant to a total term of six years in state prison, which consisted of the midterm of three years on count 2, doubled to six years for the prior strike. The court imposed and stayed a four-year term on count 1. The court did not impose a serious felony enhancement (§ 667, subd. (a)(1)) or the prior prison term enhancements (§ 667.5, subd. (b)).
The prosecution's sentencing memorandum recommended the court sentence defendant on count 2 to the midterm of three years, doubled by his strike prior, for a total of six years, "with any priors . . . either stricken or to run concurrent." --------
Defendant appeals.
DISCUSSION
Defendant argues Senate Bill No. 136 requires that the two one-year prior prison terms, the factual predicate to which he admitted but the punishment for which the trial court did not impose, be stricken because his prior convictions were not for sexually violent offenses. Senate Bill No. 136, effective on January 1, 2020, amended section 667.5, subdivision (b). Under the previous version of that subdivision, the trial court was required to "impose a one-year term for each prior separate prison term" that a defendant served unless at least five years had passed in which the defendant had been free from custody without committing a new felony offense. Under Senate Bill No. 136, enhancements under section 667.5, subdivision (b) apply only if the defendant had served a prior prison term "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Senate Bill No. 136, § 1.)
Here, defendant admitted to two prior prison terms. But no consequence followed. The trial court sentenced defendant to a total term of six years in state prison, which consisted of the midterm of three years on count 2, doubled to six years for the prior strike, with the sentence on count 1 stayed. The court did not discuss or impose the enhancements for the prior prison terms or for the prior serious felony. Defendant acknowledges as much in his opening brief, Defendant does not argue the point in his reply brief, but asks us to intercede to avoid uncertainty in future judicial proceedings.
Although the prior prison terms could not have been lawfully imposed and were implicitly struck by the trial court, we cannot afford defendant the relief he seeks because there is no enhancement for us to strike. (See People v. Pipkin (2018) 27 Cal.App.5th 1146, 1149.)
DISPOSITION
The judgment is affirmed.
RUBIN, P. J. WE CONCUR:
BAKER, J.
MOOR, J.