Opinion
F079291
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDREW JESUS MESA, Defendant and Appellant.
Lindsay Sweet, 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 Kathryn L. Althizer, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F18908089)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. Lindsay Sweet, 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 Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
Defendant Andrew Jesus Mesa was convicted of attempted first degree residential burglary. (Pen. Code, §§ 664, 459, 460, subd. (a).) In bifurcated proceedings, the court found four prior prison term allegations to be true. (§ 667.5, former subd. (b).) Defendant was sentenced to the upper term of three years on the burglary count, plus one year for each of the four prior prison term enhancements, for a total sentence of seven years.
Undesignated statutory references are to the Penal Code unless otherwise indicated. --------
In his initial briefing, defendant raised various challenges to his conviction and sentence. However, he later moved for calendar preference and to withdraw all the issues raised on appeal except the challenge to his section 667.5, former subdivision (b) prior prison term enhancements. We granted the motion for calendar preference and the motion to withdraw all issues raised on appeal other than the challenge to his prior prison term enhancements.
In light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Sen. Bill 136), we conclude we must strike defendant's prior prison term enhancements. The trial court will be directed to issue an amended abstract of judgment.
DISCUSSION
Defendant and the People agree defendant's four one-year prior prison term enhancements must be stricken.
Effective January 1, 2020, Sen. Bill 136 amends section 667.5, subdivision (b) to make a one-year enhancement pursuant to that statute applicable only to a prior prison term for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.) The People concede defendant is entitled to the ameliorative benefit of this amendment. (People v. Lara (2019) 6 Cal.5th 1128, 1134 [a statutory amendment lessening punishment is presumed to apply in all cases not yet final as of the statute's effective date, unless the enacting body clearly indicates to the contrary].) Defendant's prior prison terms arose out of convictions for knowingly obtaining, concealing, selling, or withholding from the owner a stolen vehicle (§ 496d); possession of ammunition by a person prohibited from possessing a firearm (§ 30305); and theft and unlawful driving or taking of a vehicle (Veh. Code, § 10851), which do not qualify as a sexually violent offense under Welfare and Institutions Code section 6600, subdivision (b). Accordingly, the prior prison term enhancements must be stricken.
Defendant indicates the parties have discussed the possibility of a stipulation for immediate issuance of the remittitur. We may direct immediate issuance of the remittitur, should the parties so stipulate. (See Cal. Rules of Court, rule 8.272(c)(1).)
DISPOSITION
Defendant's section 667.5, former subdivision (b) prior prison term enhancements are stricken. The trial court is directed to prepare an amended abstract of judgment reflecting this modification, and to forward a certified copy to the appropriate entities. In all other respects, the judgment is affirmed.