Opinion
B299355
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. DEANTE REGINALD SMITH, Defendant and Appellant.
Lise M. Breakey, 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, Steven D. Matthews and Ryan M. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MA052542) APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Affirmed as modified. Lise M. Breakey, 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, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
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Deante Smith appeals from a judgment entered following an April 9, 2019 sentencing hearing. He contends, the Attorney General concedes, and we agree that we must modify the judgment to strike the one-year prior prison term enhancement in light of Senate Bill No. 136, which amended Penal Code section 667.5, subdivision (b), effective January 1, 2020, to apply the enhancement only to a prior prison term for a sexually violent offense. Smith did not serve a prior prison term for a sexually violent offense, the judgment of his conviction was not final at the time the new legislation went into effect, and the legislation applies retroactively. Accordingly, we modify the judgment to strike the enhancement and, as so modified, affirm the judgment.
Senate Bill No. 136 (2019-2020 Reg. Sess.) Statutes 2019, chapter 590, section 1.
BACKGROUND
We set forth here the facts that are germane to the sole issue Smith raises on appeal: whether this court must strike the prior prison term enhancement in light of Senate Bill No. 136.
For a recitation of the facts supporting Smith's convictions and discussing the first two sentencing hearings in greater detail, see our prior opinions in this case. (People v. Smith (Jan. 9, 2015, B250674) [nonpub. opn.], People v. Smith (Jan. 10, 2019, B286676) [nonpub. opn.].)
In 2013, a jury found Smith guilty of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and two counts of battery causing serious bodily injury (§ 243, subd. (d)). The jury also found true the special enhancement allegations that, in the commission of the assaults with a firearm, Smith personally inflicted great bodily injury (§ 12022.7, subd. (a)) and, in the commission of all offenses, Smith personally used a firearm (§ 12022.5, subd. (a)). (People v. Smith, supra, B286676, p. 3.)
Statutory references are to the Penal Code unless otherwise noted.
After waiving jury trial on prior conviction allegations, the trial court found true that Smith had two prior convictions for serious or violent felonies within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and had served two prior prison terms within the meaning of section 667.5, subdivision (b). (People v. Smith, supra, B286676, p. 3.)
At a resentencing hearing on October 17, 2017, the trial court sentenced Smith to 36 years and four months in prison: on count 2 for assault with a firearm (the base count), the high term of four years, doubled to eight years under the Three Strikes law, plus consecutive terms of 10 years (the high term) for the firearm enhancement, three years for the great bodily injury enhancement, five years for each of the two prior serious felony enhancements, and one year for the prior prison term enhancement; and on count 1 for assault with a firearm, one year (one-third the midterm of three years), doubled to two years under the Three Strikes law, plus consecutive terms of one year and four months (one-third the midterm of four years) on the firearm enhancement and one year (one-third the term of three years) for the great bodily injury enhancement. (People v. Smith, supra, B286676, p. 6.)
Smith secured a new sentencing hearing after he prevailed on a petition for writ of habeas corpus, with the trial court concluding that his two prior convictions for robbery and carjacking, which arose from the same criminal case, could not both be used as prior strikes under the Three Strikes law because "both acts occurred in a very short span of time, with a single objective of taking property from the presence of a lone victim." (People v. Smith, supra, B286676, pp. 5-6.)
At the initial sentencing hearing on July 1, 2013, the trial court struck the other prior prison term allegation because the prior conviction on which it was based was used to enhance Smith's sentence under section 667, subdivision (a)(1) and the Three Strikes law. At the resentencing hearing on October 17, 2017, the court indicated that this other prior prison term enhancement remained stricken. (People v. Smith, supra, B286676, pp. 4, 6.)
In selecting the high term on the firearm enhancement in count 2, the trial court referenced the circumstances in aggravation it had cited at the initial sentencing hearing on July 1, 2013: the "crime involved great violence, great bodily harm, and the threat of great bodily harm and acts disclosing a high degree of cruelty, viciousness or callousness," the victims "were in a particularly vulnerable state," and "the defendant has engaged in violent conduct, which does indicate that he is a serious danger to society." (People v. Smith, supra, B286676, pp. 4-5, 7.)
At the October 17, 2017 hearing, the trial court also imposed and stayed under section 654 the sentence on the two counts for battery causing great bodily injury (counts 4 & 5). For each battery, the court imposed and stayed the high term of four years for the offense, doubled to eight years under the Three Strikes law, plus a consecutive 20 years (the high term) for the firearm enhancement. (People v. Smith, supra, B286676, p. 7.)
Smith appealed from the judgment entered following the October 17, 2017 resentencing hearing, contending he was entitled to another sentencing hearing in light of Senate Bill No. 620, which amended section 12022.5 to give trial courts discretion to strike certain firearm enhancements, and Senate Bill No. 1393, which amended sections 667 and 1385 to give trial courts discretion to strike prior serious felony enhancements. We agreed with Smith's contentions and remanded the matter to the trial court to determine whether to strike the enhancements under sections 12022.5 and 667, and to resentence Smith if an enhancement was stricken. (People v. Smith, supra, B286676, pp. 2, 11.)
At the April 9, 2019 hearing, upon remand, the trial court concluded "it is not in the interest of justice to strike" the enhancements under sections 12022.5 and 667 "pursuant to all factors in aggravation previously stated on the record, at the time of sentencing." Accordingly, the court declined to resentence Smith and allowed the sentence imposed at the October 17, 2017 hearing to stand.
After Smith filed notice of the current appeal, we granted his December 17, 2019 request for judicial notice of court records demonstrating that his prior prison terms, within the meaning of section 667.5, subdivision (b), were for possession of a firearm by a felon or narcotics addict (former § 12021, subd. (a)(1)) and carjacking (§ 215).
DISCUSSION
At the time of Smith's sentencing hearings, section 667.5, subdivision (b) provided a one-year sentence enhancement for prior prison or county jail terms served for felony convictions. Senate Bill No. 136 amended section 667.5, subdivision (b) to impose the enhancement only if the prior prison or county jail term was served "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 667.5, subd. (b); Stats 2019, ch. 590, § 1.) The amendment went into effect on January 1, 2020, before the judgment of Smith's conviction became final. Smith contends, the Attorney General concedes, and we agree, the new legislation applies retroactively in Smith's case. (See People v. Lopez (2019) 42 Cal.App.5th 337, 341-342 [applying Senate Bill No. 136 retroactively when appeal not final by January 1, 2020].)
Smith served prior prison terms for possession of a firearm by a felon or narcotics addict and carjacking, which are not sexually violent offenses. (See Welf. & Inst. Code, § 6600, subd. (b).) We therefore strike the prior prison term enhancement the trial court imposed because section 667.5, subdivision (b), as amended, does not allow for the enhancement in Smith's case.
It is not clear from the record which of the two prior prison term allegations the trial court struck, as set forth above, and which it imposed. --------
Smith does not request remand for resentencing, and we agree that remand is not warranted. The trial court imposed the high term and consecutive sentences where it could do so and refused to strike the firearm or prior serious felony enhancements. (See People v. Lopez, supra, 42 Cal.App.5th at p. 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion"].)
DISPOSITION
The judgment is modified to strike the one-year enhancement the trial court imposed under Penal Code section 667.5, subdivision (b). As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
ROTHSCHILD, P. J.
BENDIX, J.