Opinion
B303556
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. MARCUS BLAINE FORMAN, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NA092627) APPEAL from an order of the Superior Court of Los Angeles County. Richard R. Romero, Judge. Affirmed in part and remanded with directions. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
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Marcus Blaine Forman appeals after the trial court issued a minute order correcting his sentence to strike an unauthorized 10-year gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1). He asks us to strike two one-year enhancements under section 667.5, subdivision (b) pursuant to newly enacted Senate Bill No. 136 (2018-2019 Reg. Sess.) (SB 136) and remand for the trial court to exercise its discretion to strike a five-year enhancement under section 667, subdivision (a)(1) pursuant to newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393). Respondent concurs in Forman's requests.
Undesignated statutory citations refer to the Penal Code.
In 2014, we affirmed Forman's convictions, and the judgment became final long ago. These newly enacted laws do not apply to final judgments, but the parties treat the trial court's striking of the 10-year enhancement as a resentencing, triggering their application. We express no opinion on the merits of this position. Based on respondent's concessions, we will strike the one-year enhancements and remand for the trial court to consider striking the five-year enhancement. We otherwise affirm.
BACKGROUND
Following trial, a jury convicted Forman of second degree robbery (§ 211/459, count 1) and second degree commercial burglary (§ 459, count 2), and it found the crimes were committed for the benefit of a street gang (§ 186.22, subd. (b)(1)). The court found Forman had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony (§ 667, subd. (a)(1)), and three prior prison terms (§ 667.5, subd. (b)(1)). The court sentenced him to 43 years to life, comprised of 25 years to life for count 1, plus 10 years for the gang enhancement, five years for the prior serious felony, and three one-year consecutive terms for the prior prison terms. The court stayed his sentence on count 2.
Forman appealed. On November 19, 2014, we affirmed. We corrected two sentencing errors—we struck one of the prison priors pursuant to section 667.5, subdivision (b)(1) and ordered a correction to the abstract of judgment to reflect a base term of 25 years to life. (People v. Forman (Nov. 19, 2014, B253016) [nonpub. opn.].)
Nearly five years later on October 16, 2019, Forman's appellate counsel wrote the trial court to point out the 10-year gang enhancement was unauthorized pursuant to People v. Williams (2014) 227 Cal.App.4th 733; instead, Forman was subject to a 15-year minimum term for parole eligibility. (Id. at p. 745.) Without holding a hearing, the trial court issued a minute order striking the 10-year enhancement, as well as ordering the corrections from our prior opinion. An amended abstract of judgment was issued reflecting Forman's corrected sentence of 32 years to life.
Forman filed a notice of appeal on December 19, 2019, indicating it was an "appeal after resentencing."
DISCUSSION
Effective January 1, 2019, SB 1393 amended section 667, subdivision (a), and section 1385, subdivision (b), to grant the trial court discretion to strike or dismiss previously mandatory prior serious felony convictions. (Stats. 2018, ch. 1013, § 2; see People v. Zamora (2019) 35 Cal.App.5th 200, 208 (Zamora); People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Effective January 1, 2020, SB 136 amended section 667.5, subdivision (b) to eliminate the one-year prior prison term enhancement unless the prior term was served for a sexually violent offense (Forman's prior terms do not qualify). (Stats. 2019, ch. 590, § 1; see People v. Winn (2020) 44 Cal.App.5th 859, 872; People v. Lopez (2019) 42 Cal.App.5th 340-342.) Both of these new laws apply to nonfinal judgments pending on appeal. (Winn, supra, at p. 872 [SB 136]; Zamora, supra, at p. 208 [SB 1393].) This retroactivity rule generally does not apply once a defendant's judgment has become final, however. (See, e.g., People v. Alexander (2020) 45 Cal.App.5th 341, 343 [SB 1393 does not apply to final judgments].)
Forman's judgment became final years ago. Nonetheless, the parties take the position Forman can benefit from SB 136 and SB 1393 because the court conducted a resentencing when it struck the 10-year gang enhancement. (Cf. People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "].) Because SB 1393 was in effect when the court resentenced him, the parties view it as applicable to Forman. And because Forman's current appeal from this resentencing was pending when SB 136 became effective on January 1, 2020, the parties view his case as not final, allowing him to take advantage of this law as well.
The parties do not explain why the court did not consider striking the five-year enhancement in light of SB 1393 at the time it struck the 10-year gang enhancement. --------
We have our doubts the trial court's striking of an unauthorized 10-year gang enhancement amounted to a "resentencing" triggering application of these new laws. But we will not decide the issue. Respondent has conceded Forman is entitled to the benefit of these new laws, and based on that concession, we will grant Forman's requested relief. We will strike the two one-year enhancements pursuant to section 667.5, subdivision (b) and remand for the trial court to exercise its discretion whether to strike the five-year enhancement pursuant to section 667, subdivision (a)(1).
DISPOSITION
Forman's sentence is amended to strike the two one-year enhancements pursuant to section 667.5, subdivision (b). The matter is remanded for the trial court to exercise its discretion whether to strike the five-year enhancement pursuant to section 667, subdivision (a)(1). The trial court shall issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
In all other respects, the order is affirmed.
BIGELOW, P. J. WE CONCUR:
GRIMES, J.
WILEY, J.