Opinion
D073214
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. MAURICE CHARLES JENNINGS, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1311017) APPEAL from a judgment of the Superior Court of Riverside, Jeffrey J. Prevost, Judge. Affirmed and remanded with directions. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Maurice Charles Jennings of multiple felonies, including forcible oral copulation (Pen. Code, § 288, subd. (c)(2)); forcible sexual penetration (§ 289, subd. (a)(1)(A)); assault with intent to commit rape (§ 220, subd. (a)(1)); kidnap for robbery (§ 209, subd. (b)(1)); and simple kidnap (§ 207). The jury also found true a firearm enhancement as to all counts (§ 12022.53, subd. (b)). The trial court found true a serious felony prior conviction (§ 667, subd. (a)(1)) and a strike prior (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise specified.
Jennings appealed and this court remanded the case for resentencing and otherwise affirmed the judgment. (People v. Jennings (July 22, 2016, D069659 [nonpub. opn.].) On remand the trial court imposed a sentence of 55 years eight months to life.
After the resentencing, the Legislature enacted Senate Bill 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2), which modified section 12022.53, effective January 1, 2018, to permit trial courts to strike the firearm use enhancement in the furtherance of justice under section 1385.
Jennings appeals contending Senate Bill No. 620 must be applied retroactively to his case, which was not final on appeal at the time of the enactment. Thus, he contends the case must be remanded for resentencing again so that the trial court can exercise its discretion to strike the firearm use enhancements. The People agree Senate Bill No. 620 must be applied retroactively to this case. They contend, however, that remand is not necessary because the trial court's previous denial of Jennings's request to dismiss his strike prior (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), makes clear the court would not strike the enhancement in any event.
We agree with the parties that Senate Bill No. 620 applies retroactively to this case. We disagree with the People as to the issue of remand. We believe the proper course for us to follow is to provide a limited remand so that the trial court can exercise its discretion as it deems appropriate.
The facts and the procedural background of the trial of the original charges and sentencing are fully set forth in our prior, unpublished opinion. (People v. Jennings, supra, D069659.) Accordingly, we omit a statement of facts in this opinion. --------
DISCUSSION
Both parties agree we should apply Senate Bill No. 620 retroactively to this case. That position is consistent with the cases which have examined the issue. (People v. Chavez (2018) 22 Cal.App.5th 663; People v. McDaniels (2018) 22 Cal.App.5th 420. The only question presented here is whether we should order a limited remand to permit the trial court to exercise its discretion. We believe such remand is necessary.
The People argue that the trial court denied Jennings's Romero motion which asked to strike the "strike" prior in the furtherance of justice. The People argue such denial shows the trial judge would not strike the firearm use enhancement on remand. We disagree.
The trial court's consideration of the Romero motion required the court to follow the guidelines of People v. Williams (1998) 17 Cal.4th 148, to determine if the defendant falls within the spirit of the three strikes law. That is not the same consideration of whether the court should exercise the discretion to strike the firearm use enhancement to reduce the overall sentence. At the time of trial, the law was clear, the courts had no power to strike such enhancement. The record does not include any comments indicating the trial court expressed any view on whether it would or would not strike such enhancement if it had the power.
We follow the views expressed in other cases and we will remand the case for the limited purpose of allowing the trial court to consider if it believes the firearm use enhancements should be stricken. (People v. McDaniels, supra, 22 Cal.App.5th at p. 423; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.)
Finally, Jennings contends he is entitled to one additional day of custody credit. This court agreed he was entitled to one more day. Apparently, that modification was overlooked at the remanded sentencing hearing. The People agree Jennings is entitled to one day additional custody credit.
DISPOSITION
The sentence is vacated and the case is remanded to the trial court for the limited purpose of exercising its discretion pursuant to Senate Bill No. 620 to determine if it wants to strike such enhancements in the furtherance of justice. We make no comment regarding how the court should exercise its discretion. If the court grants a motion to strike such enhancements it shall resentence the defendant accordingly. If the court denies any motion to strike the firearm use enhancement the court shall reinstate the sentence, subject to providing Jennings with one additional day of custody credits. Whatever the outcome of the resentencing hearing the trial court shall amend the abstract of judgment accordingly and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.