Opinion
F080385
11-03-2020
THE PEOPLE, Plaintiff and Respondent, v. GEORGE GOMEZ MERCADO, JR., Defendant and Appellant.
Thomas R. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Michael A. Canzoneri, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF175358A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. David Zulfa, Judge. Thomas R. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
Defendant George Gomez Mercado, Jr., contends on appeal that his one-year prior prison term enhancement should be stricken pursuant to Penal Code section 667.5, subdivision (b), as amended by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). The People concede the enhancement should be stricken. We strike the prior prison term enhancement and affirm in all other respects.
All further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL SUMMARY
On March 5, 2019, the Kern County District Attorney charged defendant with unlawful driving or taking a motor vehicle (Veh. Code, § 10851, subd. (a); count 1), possession of a known stolen motor vehicle (§ 496d, subd. (a); count 2), and possession of burglar's tools (§ 466; count 3). As to counts 1 and 2, the information alleged defendant had suffered two prior convictions for unlawfully driving or taking a motor vehicle (§ 666.5, subd. (a)). As to all counts, the information further alleged defendant had served five prior prison terms (§ 667.5, subd. (b)).
All further dates refer to the year 2019 unless otherwise stated.
On August 19, the trial court dismissed count 3 on defendant's motion.
On the same date, the jury found defendant guilty on count 2, but was unable to reach a verdict on count 1. The trial court declared a mistrial as to count 1. In a bifurcated trial on the same date, the court found true all the special allegations. The prior prison terms were served on a 1994 conviction for unlawful taking or driving of a motor vehicle (Veh. Code, § 10851, subd. (a)), a 1997 conviction for child endangerment (§ 273a, subd. (a)), 2006 and 2008 convictions for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and 2013 convictions for unlawful taking or driving of a motor vehicle (Veh. Code, § 10851, subd. (a)) and evading a peace officer (Veh. Code, § 2800.2).
On October 10, the court imposed a sentence of five years as follows: on count 2, four years, plus a one-year prior prison term enhancement. The court ordered the term be served as a split sentence of two years in custody and three years of mandatory supervision.
After the court trial on the enhancements, defendant's 2006 and 2008 prior convictions were reduced from felonies to misdemeanors pursuant to Proposition 47. As a result, with the parties' agreement, the court imposed one prior prison term enhancement based only on the most recent prior prison term, served for convictions of unlawful driving or taking of a motor vehicle and evading a peace officer.
On December 6, defendant filed a notice of appeal.
FACTUAL SUMMARY
On January 10, Sacramento Hernandez reported his white Toyota truck missing from his driveway.
About two weeks later, Bakersfield Police Officer Jeffrey King found a parked black Toyota truck with the same license plate number as the truck that Hernandez reported stolen. Defendant told King that he received the vehicle from a friend and that he suspected the vehicle was stolen.
Hernandez was later shown the truck and confirmed that it was the truck he reported stolen, but that it had been painted black.
DISCUSSION
Defendant argues his prior prison term enhancement must be stricken based on the retroactive application of Senate Bill 136. The People agree, as do we.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b) to limit application of prior prison term enhancements to only prior prison terms that were served for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That amendment applies retroactively to all cases not yet final on Senate Bill 136's effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342, citing In re Estrada (1965) 63 Cal.2d 740, 742.)
Here, the trial court imposed a one-year section 667.5, subdivision (b) prior prison term enhancement for a term served for convictions of unlawful taking or driving of a motor vehicle and evading a peace officer, neither of which is a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1, 2020, defendant's case was not yet final. Therefore, as the parties agree, defendant is entitled to the ameliorative benefit of Senate Bill 136's amendment to section 667.5, subdivision (b). We therefore strike defendant's prior prison term enhancement.
Where an appellate court strikes a portion of a sentence, remand for " 'a full resentencing as to all counts is [generally] appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) When an action is remanded to a trial court for resentencing, the court is permitted to impose the same sentence it originally imposed if some other appropriate method of sentence calculation exists to reach the same result. (See People v. Torres (2008) 163 Cal.App.4th 1420, 1431-1433.) However, a trial court cannot impose a higher sentence in that situation. (Id. at pp. 1432-1433; see Serrato, supra, 9 Cal.3d at p. 764; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310-1312.)
The exception, not relevant here, is when the trial court erred in the first instance by imposing an unauthorized sentence. (People v. Serrato (1973) 9 Cal.3d 753, 764 (Serrato), overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) In such a case, a more severe sentence could be imposed on resentencing than was originally imposed. (Ibid.) --------
Here, because we strike a portion of the sentence, we remand the matter to the trial court for resentencing so the trial court can exercise its discretion in light of the changed circumstances. On remand, the trial court is directed to impose a sentence that does not exceed defendant's original sentence.
DISPOSITION
Defendant's prior prison term enhancement (§ 667.5, subd. (b)) is stricken and the sentence is vacated. The matter is remanded to the trial court with directions to resentence the defendant to a sentence not to exceed his original sentence. In all other respects, the judgment is affirmed.