Opinion
C090945
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. PATRICK WAYNE JEREMIAH, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CF05284)
After defendant Patrick Wayne Jeremiah pleaded guilty to making criminal threats and admitted that he suffered a prior prison term, the trial court imposed an aggregate sentence of four years in state prison. Defendant contends we should strike his one-year prior prison term enhancement. We agree and otherwise affirm the judgment.
BACKGROUND
The underlying facts are irrelevant to the issues raised on appeal. Simply put, in October 2019, defendant pleaded guilty to making criminal threats. (Pen. Code, § 422, subd. (a).) Defendant also admitted that due to a 2017 conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), he suffered a prior prison term pursuant to the version of section 667.5, subdivision (b) then in effect.
Undesignated statutory references are to the Penal Code.
In November 2019, the trial court sentenced defendant to a total of four years in state prison, consisting of the upper term of three years for the criminal threats offense, and a one-year prior prison term enhancement.
"On October 8, 2019, . . . the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, subdivision (b). [Citation.] Under the amendment, the one-year enhancement in section 667.5, subdivision (b) applies only if the defendant's prior prison term was 'for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.' (Stats. 2019, ch. 590, § 1.) [¶] The amendment to section 667.5, subdivision (b) became effective on January 1, 2020." (People v. Petri (2020) 45 Cal.App.5th 82, 93-94.)
Defendant obtained a certificate of probable cause and timely appealed.
DISCUSSION
The trial court imposed a one-year term under the prior version of section 667.5 for defendant's 2017 conviction for assault with a deadly weapon, an offense that is not a sexually violent offense as defined by the current version of section 667.5. Defendant argues that we should strike the prior prison term enhancement, because recent changes to section 667.5 apply to his sentence, which is not yet final.
" '[W]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date.' [Citations.] By eliminating the one-year enhancement for prior prison terms that were not imposed for sexually violent offenses, the newly amended section reduces the punishment for such offenses. [¶] Because [defendant's] conviction is not yet final, he is entitled to the retroactive benefit of the change in law." (People v. Winn (2020) 44 Cal.App.5th 859, 872.) --------
The People concede that defendant is entitled to have the enhancement stricken, but ask us, without citation to authority, to remand to the trial court "to resentence [defendant] as it deems appropriate." We accept the People's concession and agree that defendant is entitled to have the enhancement stricken. We conclude, however, that remand for resentencing is not warranted.
Although we are cognizant of the "full resentencing rule" (see People v. Buycks (2018) 5 Cal.5th 857, 893) where a trial court has imposed the maximum possible sentence, there is no reason to remand for resentencing. (See id. at p. 896, fn. 15; People v. Winn, supra, 44 Cal.App.5th at pp. 872-873.) Here, the trial court imposed the maximum possible sentence: the upper term for the criminal threats offense and one year for the prior prison term enhancement. Accordingly, we will strike the enhancement, modify the sentence, and affirm the judgment as modified.
DISPOSITION
The one-year enhancement imposed pursuant to section 667.5, subdivision (b) is stricken. With that modification, the judgment is affirmed. The clerk of the trial court is directed to prepare an amended abstract of judgment reflecting this modification, and to send a certified copy to the Department of Corrections and Rehabilitation.
KRAUSE, J. We concur: ROBIE, Acting P. J. RENNER, J.