Opinion
E072109
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. DIONTRE LASHAWN THOMPSON, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alana Cohen Butler and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI17001445) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed in part; vacated in part and remanded for resentencing. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alana Cohen Butler and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
In May 2017, defendant and appellant Diontre Lashawn Thompson approached a delivery truck driver in the parking lot of a liquor store in Victorville and robbed him.
Following a jury trial, defendant was convicted of robbery (count 1, Pen. Code, § 211) and criminal threats that will result in death or great bodily injury (count 2, § 422). The court sentenced him to 13 years in state prison, consisting of six years for the robbery, a five-year consecutive term on account of a prior serious felony conviction (§ 667, subd. (a)), and two one-year consecutive prior prison terms (§ 667.5, subd. (b)). The court also imposed but stayed pursuant to section 654 a consecutive sentence of one year four months for the criminal threats. Defendant appealed.
All statutory references herein are to the Penal Code unless otherwise indicated. --------
DISCUSSION
On appeal, defendant argues (i) the two prior prison terms should be stricken, (ii) it was error to designate as consecutive the stayed sentence imposed as to count 2, and (iii) the reporter's transcript should be corrected to eliminate the court's statement that a vehicle was involved in the commission of the offense. We will order the trial court to strike the prior prison terms and the reference to "consecutive" with respect to the stayed term, but will find the misstatement in the reporter's transcript to be without consequence.
1. The prior prison terms
Defendant argues he should benefit from the amendment to subdivision (b) of section 667.5, which limits prior prison term enhancements to specific sexually violent offenses. The People concede the point, and we agree.
When defendant was sentenced in February 2019, the trial court was required to impose a one-year sentence enhancement for each true finding on an allegation defendant had served a separate prior prison term and had not remained free from custody for at least five years. (Pen. Code, former § 667.5, subd. (b).) Senate Bill No. 136 amended that provision to limit the enhancement to prior prison terms resulting from convictions for sexually violent offenses as defined by section 6600 of the Welfare and Institutions Code. The amendment became effective January 1, 2020. (Stats 2019, ch. 590, § 1.)
A new or amended statute that reduces the punishment for an offense will, absent evidence to the contrary, apply retroactively to any case in which the judgment is not yet final on the statute's operative date. (In re Estrada (1965) 63 Cal.2d 740, 742, 744-745; People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195-1196, disapproved on other grounds as stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) For the purposes of the Estrada rule, a judgment is not final so long as courts may provide a remedy on direct review, including the time within which to petition the United States Supreme Court for writ of certiorari. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1336.)
When a newly amended statute provides for reduction of punishment for an offense in cases not yet final, the appropriate remedy is to vacate the sentence and remand the matter with instructions to strike the enhancements and to resentence defendant in light of the new provision so long as the new sentence is not for a term in excess of the original. (See People v. Wright (2019) 31 Cal.App.5th 749, 756-757.)
Here, defendant's sentence included two one-year enhancements for prior prison terms that did not involve sexually violent offenses. This appeal from that judgment was not final before January 1, 2020, and the parties have the right to further review by other courts even after our opinion becomes final. Defendant is, therefore, entitled to benefit from the ameliorative effect of Senate Bill No. 136's amendment to subdivision (b) of section 667.5. Accordingly, we will order the trial court to strike the two prior prison enhancements and to resentence defendant.
2. The order to serve the stayed term consecutive to the principal one
Although it is unclear from the reporter's transcript whether the court ordered the stayed sentence for count 2 to run consecutively to the principal count (count 1), the minute order and the abstract of judgment both reflect that order was made. The parties argue a stayed sentence cannot also be consecutive. We agree. (People v. Toure (2015) 232 Cal.App.4th 1096, 1107 [The option to stay a sentence and the option to make it consecutive with the principal term are mutually exclusive; the trial court must pick one or the other.].) We will direct correction of the sentencing minute order and the abstract of judgment.
3. The misstatement in the reporter's transcript
The reporter's transcript reflects the court found "a motor vehicle was involved in the commission of this offense." Defendant argues the finding is not supported by the evidence and should be ordered stricken from the reporter's transcript. The People agree the finding is erroneous but, because it does not appear in the minute order or abstract of judgment, there is no need to correct the transcript. We agree with the People.
There is no evidence in the record that defendant used a vehicle in the course of robbing and threatening the victim. Defendant was in the liquor store when the victim made his delivery. When the victim was getting back in his truck, defendant approached him, robbed him, and then walked away. There is no mention of defendant arriving or leaving in a vehicle.
When a mistake in the reporter's transcript is not carried over to the minute order or abstract of judgment, we may deem the sentencing minute order and abstract of judgment to prevail over the reporter's transcript. (People v. Cleveland (2004) 32 Cal.4th 704, 768.) The erroneous statement has no effect. (Ibid.)
DISPOSITION
The sentence is vacated. The matter is remanded with instructions (1) to amend the February 6, 2019 sentencing minute order nunc pro tunc to eliminate the reference to provision that the sentence for court 2 is "Consecutive with Count: 001," and (2) to strike the two one-year prior prison terms and to resentence defendant. Following correction of the sentencing minute order and resentencing of defendant, the trial court is directed to prepare a new abstract of judgment to reflect the correction to the sentencing minute order and the new sentence, and to forward a copy of the new abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MENETREZ
J.