Opinion
B303711
02-10-2021
THE PEOPLE, Plaintiff and Respondent, v. ISRAEL MAGANA, Defendant and Appellant.
Randy S. Kravis, 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, Paul M. Roadarmel, Jr. and Stacy S. Schwartz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA104309 APPEAL from an order of the Superior Court of Los Angeles County, Henry J. Hall, Judge. Affirmed as modified. Randy S. Kravis, 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, Paul M. Roadarmel, Jr. and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
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In December 2016 a jury convicted defendant and appellant Israel Magana of the murders of Covan Brady and Matthew Martin as well as unlawful possession of a firearm. The jury found special circumstance, firearm, and gang allegations true. The trial court sentenced Magana to two consecutive terms of life without the possibility of parole for the murders, plus a consecutive term of 25 years to life for the firearm enhancement on the Brady murder, plus a determinate term of 10 years. Three years of the 10-year term consisted of the court's imposition as to all three counts of a one-year prior prison term enhancement under Penal Code section 667.5, subdivision (b). (References to statutes are to the Penal Code.) In March 2019 we affirmed Magana's conviction but remanded the case to the trial court for it to consider whether to strike the firearm enhancement under Senate Bill No. 620 (Stats. 2017, ch. 682, § 2) (SB 620). (People v. Magana (Mar. 8, 2019, B280269) [nonpub. opn.].)
Back in the trial court, Magana's counsel filed a "Motion for Resentencing" on December 12, 2019, asking the court to strike the 25-to-life sentence on the firearm enhancement. The court held a hearing on December 12, 2019, at which Magana was present with counsel. The court declined to strike the firearm enhancement. Magana again appealed.
The sole issue Magana raises on appeal concerns his prison prior. The People alleged—and the trial court found true—that Magana had a prison prior within the meaning of section 667.5, subdivision (b) for a violation of Health & Safety Code section 11370.1. Effective January 1, 2020, Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) amended section 667.5, subdivision (b). Under that amendment, a one-year prior prison term enhancement applies only if the defendant served that prison term for a sexually violent offense as defined in Welfare & Institutions Code section 6600, subdivision (b). (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341 (Lopez).) The amended statute applies retroactively to cases in which the judgment was not yet final on its effective date. (People v. Gastelum (2020) 45 Cal.App.5th 757, 772-773.)
The parties agree Magana is entitled to the benefit of the amended statute. His prison prior was not for a sexually violent offense. Accordingly, we order the three one-year enhancements based on Magana's prison prior stricken. As the Attorney General notes, remand for a new sentencing hearing is unnecessary because the trial court already exercised its discretion to impose the maximum sentence. (Lopez, supra, 42 Cal.App.5th at p. 342.)
DISPOSITION
We strike the three one-year terms imposed on counts 1, 2, and 3 under Penal Code section 667.5, subdivision (b). The trial court is to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. We affirm Israel Magana's sentence as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
DHANIDINA, J.