Opinion
E071605
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEE JOHNSON, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie F. Fraser, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1603967) OPINION APPEAL from the Superior Court of Riverside County. Ronald G. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Steven G. Counelis, Judge. Affirmed in part, reversed in part with directions. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie F. Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant and appellant, Richard Lee Johnson, of several offenses. Defendant later admitted to having several priors convictions, including two prior serious felony convictions. The trial court found defendant's prior convictions to be true and sentenced him to 23 years, four months, which included a mandatory five-year enhancement for each of the prior serious felony convictions.
Defendant raises three contentions on appeal. First, defendant contends we should remand his case for resentencing under the newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) in order to allow the trial court to consider whether to strike his two prior serious felony conviction enhancements. Second, defendant argues we should modify the judgment to award him the correct amount of presentence custody credits, which the trial court erroneously calculated. Third, defendant contends we should strike the three one-year enhancements for defendant's prior prison terms under newly enacted Senate Bill No. 136 (2019-2020 Reg. Sess.).
In defendant's opening brief, he raised an additional argument, but he subsequently withdrew it.
The People agree with all of defendant's contentions, as do we. Accordingly, we reverse the judgment and remand for resentencing. The judgment as to defendant's convictions is affirmed.
Appellant filed a petition for habeas corpus, case No. E073546, which we ordered considered with this appeal. We shall rule on the petition by separate order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with spousal abuse (Pen. Code, § 273.5, subd. (a); count 1), criminal threats (§ 422; count 2), assault with a deadly weapon (§ 245, subd. (a); count 3), and vandalism (§ 594, subd. (b)(1); count 4). The information also alleged defendant had nine prior prison convictions, two of which were serious felony convictions. The jury found defendant guilty of the charged offenses and also found defendant used a deadly and dangerous weapon in counts 1 and 2 (§§ 12022, subd. (a), 1192.7, subd. (c)(23)), and the vandalism was over $400.
Unless otherwise noted, all further statutory references are to the Penal Code. --------
After the trial, defense counsel told the trial court that "there may be admission to certain priors but regardless either way it would be a Court trial." At a subsequent hearing, the trial court stated: "I understand informally that as to the certain priors, defendant is prepared to admit, but you still wish to be heard on the strike priors themselves." Defense counsel then told the trial court that defendant was "prepared to admit them."
Defendant then admitted to several priors, including two serious prior felony convictions. The trial court found defendant's "admissions to each and every one of [his] prior convictions [was] voluntary, knowing, [and] intelligent," and accepted them as true. The trial court imposed a mandatory five-year enhancement for each of defendant's two serious prior offenses. (§ 667, subd. (a); People v. Valencia (1989) 207 Cal.App.3d 1042, 1045-1047.) Defendant was sentenced to a total of 23 years, four months.
Defendant timely appealed.
III.
DISCUSSION
A. Senate Bill No. 1393
Defendant asserts that, in light of the enactment of Senate Bill No. 1393, we should remand to allow the trial court to exercise its discretion with respect to striking the prior serious felony conviction enhancements. The People agree, as do we.
The trial court found two prior serious felony conviction enhancements true. (§ 667, subd. (a).) Consequently, the trial court imposed two consecutive terms of five years each. When defendant was sentenced, the trial court had no power to strike a prior serious felony conviction enhancement. (See former § 1385, subds. (b), (c)(2), Stats. 2014, ch. 137, § 1.) On January 1, 2019, however, while this appeal was pending, Senate Bill No. 1393 went into effect. (Stats. 2018, ch. 1013.) Senate Bill No. 1393 empowers the trial courts with discretion to strike a prior serious felony conviction enhancement. (People v. Valencia, supra, 207 Cal.App.3d at pp. 1045-1047.)
Senate Bill No. 1393 applies retroactively to those like defendant whose sentences were not final when Senate Bill No. 1393 became effective. (People v. Garcia (2018) 28 Cal.App.5th 961.) Accordingly, we may remand this matter to the trial court to exercise its newfound discretion. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1105 [remand is the "usual custom" in similar circumstances].) We agree with the parties that remand is appropriate here. We therefore remand so that the trial court can exercise its newly gained discretion under Senate Bill No. 1393 as to whether to strike defendant's two serious felony enhancements for sentencing purposes.
B. Presentence Custody Credits
The trial court awarded defendant a total of 871 presentence custody credits, consisting of 758 days of actual custody and 113 days of custody credits. Defendant asserts—and the People concede—that he was entitled to 758 days of conduct credit, for a total of 1,516 days of presentence custody credits. We agree.
Defendant was incarcerated in county jail for 758 days between his arrest and sentencing. Under section 4019, defendant was entitled to 758 days of custody credits. (§ 4019, subd. (f) ["[A] term of four days will be deemed to have been served for every two days spent in actual custody."].") On remand, the trial court is directed to modify the judgment to award defendant 1,516 days of presentence custody credits. (People v. Taylor (2004) 119 Cal.App.4th 628, 647 ["A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered."].)
C. Senate Bill No. 136
After this case was fully briefed, the parties filed supplemental briefs on the applicability of recently enacted Senate Bill No. 136. Senate Bill No. 136 amended section 667.5, subdivision (b), which now limits one-year prior prison term enhancements to convictions for certain sexually violent offenses. (See People v. Lopez (2019) 42 Cal.App.5th 337, 340.) Senate Bill No. 136 became effective on January 1, 2020. (People v. Jennings (2019) 42 Cal.App.5th 664, 680-681.)
Defendant thus contends—and the People agree—that his three one-year terms for his prison priors should be stricken under Senate Bill No. 136. We agree with the parties.
The trial court imposed three one-year enhancements for defendant's three prior prison terms. However, none of defendant's prior prison terms were for sexually violent offenses. Accordingly, defendant is entitled to have his three one-year enhancements for his prison priors stricken under Senate Bill No. 136 so long as it applies retroactively.
We agree with the parties that Senate Bill No. 136 applies retroactively to defendant's case. Under In re Estrada (1965) 63 Cal.2d 740, unless the Legislature provides otherwise, ameliorative legislation applies retroactively to all non-final judgments that are not final when the legislation goes into effect. Defendant's judgment was not final on January 1, 2020, when Senate Bill No. 136 went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Defendant is therefore entitled to relief under Senate Bill No. 136. (See People v. Jennings, supra, 42 Cal.App.5th at pp. 680-681 [holding Senate Bill No. 136 applies retroactively].)
Because defendant received the upper term on count 1 and consecutive mid-terms on the other counts, the People correctly observe that "there is no additional time that the court could otherwise impose." The People therefore agree with defendant that his three one-year prison prior enhancements "should simply be stricken." We agree with the parties and strike the 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" due to Senate Bill No. 136]; 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."].)
IV.
DISPOSITION
The judgment with respect to the convictions is affirmed. The judgment as to defendant's sentence is reversed. The three one-year enhancements for defendant's prior prison terms are stricken. The matter is remanded for the trial court to consider whether to strike the prior serious felony conviction enhancements and resentence defendant accordingly. The trial court is directed to modify the judgment to reflect that (1) defendant is entitled to 758 days of presentence conduct credit under section 4019 in addition to the 758 days of actual credit previously awarded, for a total of 1,516 presentence custody credits and that (2) defendant's three one-year enhancements for his prior prison terms are stricken. The trial court is directed to issue an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. MENETREZ
J.