Opinion
E072177
03-23-2020
THE PEOPLE, Plaintiff and Respondent, v. ERWIN MAURICE WALKER, Defendant and Appellant.
Paul R. Kraus, 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, Arlene A. Sevidal and James M. Toohey, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1801259) OPINION APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, remanded with directions in part. Paul R. Kraus, 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, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Erwin Maurice Walker stole a police "bait" bike that was affixed with a global positioning system (GPS) device. Defendant was subsequently located standing next to the police bike and arrested. Following a jury trial, defendant was convicted of felony grand theft (Pen. Code, § 487, subd. (a)). In a bifurcated proceeding, the trial court found true that defendant had suffered four prior prison terms (§ 667.5, subd. (b)) and three prior serious or violent felony strike convictions (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of eight years in state prison with 368 days of credit for time served as follows: the middle term of four years for the substantive offense, plus four one-year terms for each of the four prior prison term enhancements.
All future statutory references are to the Penal Code unless otherwise stated.
The jury found defendant not guilty of misdemeanor petty theft as charged in count 2.
In a supplemental brief, defendant contends the four one-year enhancements imposed for the prior prison terms must be stricken pursuant to Senate Bill No. 136 (Senate Bill 136). The People agree but argue the matter should be remanded for resentencing. We reverse the true findings on defendant's four one-year prior prison term enhancements under Senate Bill 136. We also agree with the People and find that the matter should be remanded to the trial court for resentencing. We affirm the judgment in all other respects. The details of defendant's criminal conduct are not relevant to the limited sentencing issue raised in this appeal, and we will not recount them here.
After defendant filed his opening brief, defendant filed a request to withdraw his opening brief and "to proceed to adjudication of this appeal solely" on his Senate Bill 136 claim raised in his supplemental brief. We granted defendant's request and directed the clerk of this court to strike defendant's opening brief.
II
DISCUSSION
Defendant asserts that, following the enactment of Senate Bill 136, the four prior prison term enhancements must be stricken because his prior prison term convictions no longer qualify as predicate offenses for the imposition of enhancements pursuant to section 667.5, subdivision (b). Defendant also argues that the ameliorative benefits of Senate Bill 136 apply retroactively. The People agree but believe a remand is necessary.
While this appeal was pending, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.) (Stats 2019, ch. 590, § 1), effective January 1, 2020. At the time of defendant's sentencing, former section 667.5, subdivision (b), required trial courts to impose a one-year sentence enhancement for each true finding on an allegation that the defendant had served a separate prior prison term unless the defendant had remained free of both felony convictions and prison or jail custody during a period of five years since the subject prior prison term. Following the enactment of Senate Bill 136, only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b), are subject to the one-year enhancement pursuant to section 667.5, subdivision (b). (Stats 2019, ch. 590, § 1.)
"By eliminating section 667.5, subdivision (b) enhancements for all prior prison terms except those for sexually violent offenses, the Legislature clearly expressed its intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for prior prison terms for offenses other than sexually violent offenses. [Citation.]" (People v. Jennings (2019) 42 Cal.App.5th 664, 682 (Jennings).) Therefore, under the rule in In re Estrada (1965) 63 Cal.2d 740, "Senate Bill No. 136's . . . amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date." (Ibid.)
Defendant's case was still pending as of January 1, 2020. Therefore, he is entitled to the ameliorative benefit of Senate Bill 136's amendment to section 667.5, subdivision (b). Defendant's four prior prison terms were not for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Stats 2019, ch. 590, § 1.) Because these four prior prison terms will no longer be qualifying prior prison terms for the imposition of enhancements pursuant to section 667.5, subdivision (b), as amended by Senate Bill 136, we shall reverse the true findings on the four prior prison term enhancements. (See Jennings, supra, 42 Cal.App.5th at p. 682 [court reversed one-year section 667.5, subdivision (b) prior prison term enhancement].)
Defendant urges us to strike the enhancements, whereas the People ask that we remand the matter for the trial court to resentence defendant. We agree with the People. Because the trial court did not impose the maximum possible sentence, the trial court could exercise its discretion to "reassess the sentence based on the elimination of the additional punishment for the prison priors" on remand. (People v. Lopez (2019) 42 Cal.App.5th 337, 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion" due to Senate Bill 136]; see People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 ["Because the resentencing court had imposed the maximum possible sentence, regardless of whether the two-year on-bail enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew"].)
We therefore conclude remand is appropriate for the trial court to resentence defendant in light of Senate Bill 136. (See Jennings, supra, 42 Cal.App.5th at pp. 667-668 [remanding for resentencing in part because defendant was entitled to have enhancements stricken under Senate Bill 136].)
III
DISPOSITION
The true findings on the four prior prison term enhancements under section 667.5, subdivision (b), are reversed. The matter is remanded for the trial court to strike the four, one-year prior prison term enhancements imposed under section 667.5, subdivision (b), and resentence defendant. After resentencing defendant, the clerk of the superior court is directed to prepare an amended abstract of judgment reflecting defendant's new sentence, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.