Opinion
C081988
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. HOWARD STEVEN WILBANKS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF132171)
Responding to a domestic violence call, officers encountered defendant Howard Steven Wilbanks, a parolee. As officers attempted to handcuff defendant a struggle ensued, in the midst of which a police dog bit defendant. An information charged defendant with two counts of resisting an executive officer, felony vandalism, and inflicting corporal injury on a former cohabitant. (Pen. Code, §§ 69, 594, subds. (a), (b)(1), 273.5, subd. (a), 17, subd. (b)(4).) The information also alleged four prior strike convictions and six prior prison terms. A jury found defendant guilty of the lesser included offense of resisting a police officer, resisting an executive officer, and felony vandalism. The jury found defendant not guilty of corporal injury on a former cohabitant. Sentenced to 50 years to life plus six years, defendant appeals, arguing the court erred: in failing to instruct on the lesser included offense of simple assault, in denying defendant's new trial motion, and in denying defendant's request to submit a supplemental declaration. He also asserts that insufficient evidence supports an enhancement, and in supplementary briefing argues the enhancements imposed for prior prison terms must be stricken in light of legislative changes enacted following sentencing. We shall modify the judgment to strike the prior prison term enhancements but otherwise affirm.
All further statutory references are to the Penal Code unless otherwise designated.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2013 an information charged defendant with resisting an executive officer (counts 1 & 2), felony vandalism (count 3), and inflicting corporal injury on a former cohabitant (count 4). The information also alleged four prior strike convictions and six prior prison convictions. (§ 667, subd. (d), 667.5, subd. (c), 1192.7, subd. (c), 667.5, subd. (b).) Defendant entered a plea of not guilty.
The following evidence was introduced at trial.
In 2012 parole agent Anita Earl began supervising defendant, who had incurred six parole violations. Earl submitted a parolee-at-large warrant for defendant on May 14, 2013. A parolee at large is an offender who has absconded from parole supervision and is subject to arrest.
The Incident
One evening in May 2013, Officers Nolan McManus and Brian Olson responded to a domestic violence call at an apartment. Mondo, a police dog, accompanied his master, Olson. The officers were aware of defendant's status as a parolee at large and of the necessity of arresting him.
Officer McManus presented his version of events. When the officers arrived, the victim flagged them down. She told the officers: "He's in the house and he's getting a knife in the kitchen, from the kitchen." The victim had blood on her face.
Defendant came out of the apartment with blood on his shirt and his hands in his pockets. Officer McManus drew his weapon and ordered defendant to get his hands out of his pockets and get on the ground. Defendant complied, lying down on his stomach and putting his hands above his shoulders. Officer Olson moved to handcuff defendant.
Defendant said "Fuck this," began to stand up, and turned to face the officers. Officer McManus believed defendant was going to fight them. As defendant got to his knees, Officer Olson kicked defendant on the right side of his face and defendant fell back down. McManus repeatedly told defendant to stop resisting and stay on the ground. As McManus began to handcuff him, defendant hit McManus in the face twice. McManus put his knee on defendant's ribcage and punched him in the face.
Officer McManus had not touched defendant before the defendant hit the officer twice in the face. McManus's blows against defendant, known as distraction strikes, were aimed at getting defendant to comply. McManus's training included this tactic. However, defendant continued to resist.
As defendant and Officer McManus continued to fight, McManus heard Officer Olson yell "Dog" three times. Mondo ran up and bit defendant on the left side of his body. After the officers handcuffed defendant, Olson pulled Mondo off him. Defendant continued yelling.
The altercation left Officer McManus with bruises under his right eye, swelling on his right cheek, cuts on his fingers, and the left side of his right hand swollen. McManus testified he would not have done anything differently.
Officer Olson provided his version of events. He testified that every parolee-at-large warrant warned "caution armed and dangerous." He also provided a background on Mondo's training and certification.
During the incident, as Officer Olson walked toward defendant to handcuff him, he told defendant to put his hands away from his body. Defendant failed to comply, but instead started to push himself up. Defendant was loud and angry. Olson immediately kicked defendant.
Officer Olson explained his reaction. Defendant was a parolee at large and the victim told officers defendant was looking for a knife and Olson thought defendant might have been armed with a knife. Both defendant and the victim had blood on them. Defendant said "Fuck this," and tried to get up. Kicking defendant was more expedient than using a Taser, making the kick the best option.
Defendant continued to fight back as Officer McManus struggled to subdue him. Officer Olson summoned Mondo, who tried to latch onto defendant. Mondo distracted defendant and the officers grabbed defendant's hands and handcuffed him. Olson arrested defendant, put Mondo in the car, searched defendant for weapons, and called for assistance for defendant's injuries. The jury saw photos of defendant's injuries taken by Olson. Olson also testified he would not have done anything differently.
Victim's Testimony
The victim and defendant were in an on-again off-again relationship for two years. At the time of the incident, defendant had moved back in with the victim. Defendant moved out the previous November after physically attacking her. Although she knew defendant's parole officer, she did not know he had not checked in with the parole officer and was thus a parolee at large.
The day of the incident, the victim and defendant drank and watched a movie. Defendant often became violent after drinking and was acting strangely. After defendant took a nap, he said he was going outside to have a cigarette. She told him, "No, you're not. . . . You can't even walk." Defendant became angry, broke his cell phone in half, and grabbed a large seashell to throw. The victim grabbed the seashell, ran into the kitchen, and got a butcher block of knives. She hid them in the bedroom.
When she returned, she discovered defendant had broken her television. She then called 911. A tape of the call was played for the jury. Defendant threw something at a mirror and came after the victim. He chased her through the apartment, threw her computer monitor on the floor, and tried to pull the chandelier out of the ceiling.
The victim ran outside and defendant chased her into the parking lot. Defendant tried to punch out the windshield on her car, then returned to the apartment and tried to kick in the window. He threw a potted plant on the lawn. The victim yelled for defendant to stop, but defendant went into the bathroom and punched out the mirror.
The victim told defendant he was going to jail and defendant yelled he was going to kill himself. She wiped blood off her face, went outside, and flagged down the officers. She told the officers defendant was in the apartment and "he may be armed with a knife." As she went inside, she heard officers yelling "Get down." That night she told an officer she did not see any physical altercation between defendant and the officers.
However, at trial the victim testified she saw the smaller officer punching defendant and the larger officer kicking him. She heard defendant exclaim "You broke my ribs." Under further questioning by the prosecution, she acknowledged she had not reported this to the officers at the scene. Her testimony came after receiving letters from the defendant requesting her to have the charges reduced to a misdemeanor. The victim denied defendant had repaid her for the damage he caused prior to the preliminary hearing, but she admitted testifying at the preliminary hearing that she still loved defendant.
The victim thought defendant had hit her the night of the incident because she had blood on her face. That night she told an officer that defendant hit her. Later she realized the blood probably came from defendant's hand. She did not tell officers defendant grabbed her face.
Defendant sent her $1,500 while he was in jail. She had five prior domestic incidents with defendant. Several years ago, defendant had told the victim he had stabbed an officer in the hand.
Verdict and Sentencing
The jury found defendant guilty of the lesser included offense of resisting a peace officer in violation of section 148 (count 1); guilty of resisting an executive officer by means of threats, force, or violence in violation of section 69 (count 2); guilty of felony vandalism in violation of section 594, subdivisions (a) and (b)(1) (count 3); and not guilty of corporal injury on a former cohabitant (count 4). The court found the prior conviction allegations true except for one prior strike conviction.
The court denied defendant's motion for a new trial. Defendant also filed a motion to strike two of the prior strike convictions. The court denied the motion. The court sentenced defendant to 50 years to life plus six years: a concurrent 180 days on count 1, consecutive 25 year-to-life terms on counts 2 and 3, and six years for the six prior prison convictions. Defendant filed a timely notice of appeal.
DISCUSSION
I
Instructional Error
Defendant argues the court erred prejudicially in failing to instruct on simple assault as a lesser included offense in count 2, resisting an executive officer.
Background
The information charged defendant in count 2 with violating section 69 "in that . . . [he] did willfully and unlawfully attempt, by means of threats, and violence, to deter or prevent [Officer McManus] . . . from performing a duty . . . and did willfully, unlawfully, and knowingly resist, by the use of force or violence [Officer McManus] in the performance of said officer's duty." Count 1 was the same charge involving Officer Olson.
"[A] violation of section 69 can occur in two circumstances. Under that section, a defendant commits a violation by attempting to deter an officer's lawful duty by violence or threat of violence. Alternatively, section 69 is violated where a defendant knowingly resists an officer's execution of lawful duty by actually using force or violence." (People v. Brown (2016) 245 Cal.App.4th 140, 151 (Brown).)
Here, the prosecution pursued the threat of violence theory in count 1 involving Officer Olson and the actual use of violence in count 2 involving Officer McManus. The court also advised the jury that resisting a police officer was a lesser included offense to both counts. The court instructed the jury that the People had the burden to prove beyond a reasonable doubt that the officers were performing their duties as peace officers.
The court also instructed: "A peace officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.
"Use of Force:
"Special rules control the use of force.
"A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense.
"If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force.
"If a peace officer uses unreasonable or excessive force while arresting; attempting to arrest; detaining or attempting to detain a person; that person may lawfully use reasonable force to defend himself or herself.
"A person being arrested uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection." (CALCRIM No. 2670.)
On count 1, the prosecution argued defendant threatened force or violence against Officer Olson when he said "Fuck this" and turned toward the officer. That crime was complete before Olson administered the distraction strike. For count 2, the prosecution argued defendant used force or violence in punching Officer McManus twice in the face when the officer tried to handcuff him. Prior to the punches, McManus had not employed any force. In addition, the prosecution claimed defendant had no right to continue to punch McManus when the officer was using reasonable force to try to overcome defendant's resistance.
Discussion
The court instructed the jury that they could find defendant guilty of the lesser included offense of resisting a police officer in both counts 1 and 2. However, defendant contends the court erred in failing to instruct sua sponte that the jury could find defendant guilty of simple assault as a lesser included offense in count 2 involving Officer McManus.
Even in the absence of a request, a trial court must instruct the jury on any lesser offense necessarily included in the charged offense, if there is substantial evidence that only the lesser crime was committed. Consequently, a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find support in the evidence. However, the court is not required to instruct on theories that have no such evidentiary support. We review the court's failure to instruct de novo. (Brown, supra, 245 Cal.App.5th at pp. 151-152.) Both parties agree that assault is a lesser included offense to a section 69 charge that a defendant knowingly resisted by actually using force or violence. (Brown, at p. 153.)
Defendant argues that the evidence required an instruction on assault. He acknowledges the officers' testimony that they used only the force necessary to restrain defendant and put him in custody but points to the victim's testimony that defendant was on the ground being repeatedly kicked and punched by the officers.
Defendant likens his situation to that of the defendant in Brown, supra, 245 Cal.App.4th 140. In Brown, the court found the testimony about the defendant's resistance and the officers' response varied wildly. After a chase, officers stated they had to tackle the defendant to get him off his bicycle. The defendant became combative, repeatedly punching one of the officers until the other officer intervened. The defendant, in contrast, testified he landed face down on the ground after falling off his bike. He neither resisted nor tried to flee when one of the officers dived on him and punched him in the head three times. The defendant denied punching either officer. Regardless of which version was believed, the Court of Appeal found "the jury should have been given the option of finding [the defendant] guilty of simple assault." (Id. at pp. 146-147, 151.)
Defendant likens the facts of his case to those in Brown: "By the officers['] own admission, Officer Olson kicked [defendant] in the head, [defendant] was then repeatedly punched by Officer McManus during which time [defendant] punched McManus several times in the side of the head. [The victim] contends that she saw [defendant] lying on the ground and being repeatedly punched and later being repeatedly kicked. Thus, even if [defendant] did use unreasonable force to defend against the excessive force being used by the officers, such would amount to simple assault."
However, the facts before us differ markedly from those in Brown. Here, the officers testified that defendant first struck Officer McManus twice in the face as the officer attempted to handcuff him. The victim did not witness the beginning of the altercation, nor did defendant dispute the officers' testimony regarding his resistance. By initiating the incident against McManus, defendant was not acting in self-defense, nor were his actions a response to the officer's unlawful use of force. After defendant hit McManus, the officer and defendant exchanged blows. The jury found the degree of force applied by McManus was reasonable under the circumstances. No other finding was plausible in light of the evidence.
Defendant points to evidence that Officer Olson initiated the violence by kicking defendant in the face to which defendant responded with physical force. According to defendant, "The fact that [defendant] struck Officer McManus after being kicked by Officer Olsen should not be of any significance as the two officers were working together and [defendant] was still responding to what could be viewed as an unreasonable use of force by Officer Olsen." In short, Olson's actions to prevent defendant from rising to his feet justified defendant's use of force against McManus. Defendant offers no authority for this proposition. We find no error.
II
New Trial Motion
After the trial, defense counsel discovered that a CD of police car camera recordings produced during discovery contained not one, but three video clips. One of the clips counsel had not previously seen showed one of the officers kicking defendant. Defendant filed a motion for a new trial based on misconduct by the prosecution, newly discovered evidence, and ineffective assistance of counsel. The court denied the motion. On appeal, defendant argues "there seems to be little doubt that appellant's counsel was put on notice there were multiple videos which should have prompted an inquiry by defense counsel of the prosecution."
Background
During the hearing on the new trial motion, defendant stated the prosecution complied with discovery by providing a CD containing copies of three police car camera videos. However, defense counsel mistakenly believed the CD contained only one video clip, and subsequently discovered the other two after trial. According to defense counsel, there were no special instructions on the disc or number of videos provided on the disc. If there had been, he would have played the disc for the jury. Defendant argued defense counsel should have discovered the additional recordings and failure to do so rendered counsel's representation deficient. The additional recordings, defendant argued, bolstered the victim's testimony that one of the officers repeatedly kicked defendant in his side.
In denying the motion, the trial court determined defense counsel was on notice that the CD contained "three car cam videos" and could have produced the evidence at trial, so there was no newly discovered evidence. The prosecution had not failed to turn over the evidence. The court also denied defendant's claim of ineffective assistance, finding the video "grainy," "very fuzzy," and that it did "not clearly show" one of the officers kicking defendant. Nor did the court find counsel's alleged ineffective assistance prejudiced defendant.
Discussion
Ineffective assistance can provide the basis for a new trial based on the constitutional duty of trial courts to ensure defendants are accorded due process. (People v. Callahan (2004) 124 Cal.App.4th 198, 209.) We review the denial of a motion for a new trial de novo, but defer to the trial court's findings if they are supported by substantial evidence. (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225.)
To establish ineffective assistance of counsel, a defendant must show counsel's performance was deficient and fell below an objective standard of reasonableness, and it is reasonably probable that a more favorable result would have been reached absent the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-692 .) A reasonable probability is a "probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
Defendant contends that, by either: failing to carefully review the videos, inadvertently overlooking the videos, or failing to carefully review the information provided in discovery and making an inquiry about the videos not included, defense counsel performed ineffectively. According to defendant, the video would have corroborated the victim's testimony and demonstrated the officers "were intentionally concealing the excessive force they utilized when attempting to apprehend defendant." He acknowledges the video is "grainy," but argues the sound track would allow the jury a better understanding of the events. According to defendant, the trial court erred when it concluded defense counsel's deficiencies did not prejudice defendant.
After viewing the video, we agree with the trial court's assessment that the indistinct video images which did not show the officer kicking the defendant would not have resulted in a more favorable verdict for defendant had they been shown to the jury. The indistinct sound track is no more revealing than the video images and would not have supported defendant's assertion of excessive force.
III
Sufficiency of the Evidence of Second Degree Murder Enhancement
Defendant challenges the sufficiency of the evidence to support the trial court's finding that defendant was adjudicated as having violated section 187, second degree murder in December 1972. According to defendant, the trial court improperly relied on the California Law Enforcement Telecommunications System (CLETS) records in making its determination.
Background
Following the trial, the court considered the prior conviction allegations. Case enhancement No. a(4) alleged that on December 27, 1972, defendant had been convicted of violating section 187, second degree murder, within the meaning of section 667, subdivision (e)(2).
In support of the enhancement, the prosecution offered a commitment order issued by the Division of Juvenile Justice and certified copy of defendant's criminal history. The court requested further briefing on case enhancement No. a(4). The parties filed supplemental briefs.
The court considered the evidence: "Martinez holds that certified rap sheets, the so-called CLETS information are admissible to prove the fact of the prior conviction.
People v. Martinez (2000) 22 Cal.4th 106 (Martinez).
"The People have presented a certified CLETS rap sheet demonstrating that the defendant suffered a prior conviction for murder, PC 187.
"Martinez depends in part upon the Court taking judicial notice of statutes relating to the Department of Justice's maintenance of such records, so-called CLETS records, and that pursuant to such statutes, the Court may presume that the official duty of maintaining the records was performed.
"Defense argues that this case is distinguishable from Martinez on the ground that certain of these statutes were not in existence in 1972, when defendant committed the murder, so those statutes cannot be relied upon in this case.
"However, in the Martinez decision, the California Supreme Court highlighted various other statutes concerning the same subject matter that were in existence in 1972. . . .
"The California Supreme Court cites in summary, the Martinez case controls on this issue as cited by the People, and the Court can rely on the certified rap sheet to establish that defendant was convicted of second degree murder, a violation of Penal Code section 187 on December 27th, 1972, in Yolo County." Accordingly, the court found the adjudication December 27, 1972, for second degree murder was true.
Discussion
Defendant faults the trial court for following Martinez and determining the evidence supported defendant's 1972 murder conviction. In Martinez, the Supreme Court held the trial court did not abuse its discretion in admitting under Evidence Code section 1280, a CLETS printout as evidence of a defendant's prior conviction rather than certified prison records under Penal Code section 969b. The court determined the CLETS printout fulfilled the requirements of Evidence Code section 1280. (Martinez, supra, 22 Cal.4th at pp. 126-130; People v. Dunlap (1993) 18 Cal.App.4th 1468.)
Evidence Code section 1280 states: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Defendant contends his juvenile adjudication should be distinguished from the nonjuvenile criminal convictions in Martinez and Dunlap. However, a juvenile petition alleges criminal offenses and juvenile court records are part of the records of the superior court. (Welf. & Inst. Code, §§ 602, subd. (a), 825.) The CLETS states it was prepared based upon an arrest or court disposition report.
Defendant also contends the statutes cited in Martinez and relied on by the trial court do not impose a duty on criminal or juvenile court employees to observe, collect, and promptly report information to the Attorney General relating to court proceedings. The Martinez court found Evidence Code section 664 presumes that such official statutory reporting duties are regularly performed. (Martinez, supra, 22 Cal.4th at pp. 124-126.) In addition, defendant faults the trial court for relying on statutes that were not operative at the time of his 1972 adjudication claiming they "cannot be used to establish the presumption that the information contained in the CLETS report . . . were the result of a duty regularly performed by a public employee." However, as the Martinez court noted, the 1972 version of section 11117 required mandatory disposition reports be forwarded to the department within 30 days after the release of the detained person or the termination of the proceedings. (Martinez, at p. 122.) The court did not err.
IV
Evidentiary Ruling
Defendant argues the trial court abused its discretion by denying his request to file and for the court to consider a supplemental declaration in support of his motion to strike the 1972 murder adjudication. Defendant sought to strike the 1972 murder adjudication on the grounds he was not informed of or was denied his constitutional rights prior to entering his admission to the charge.
Background
Prior to the trial on the prior conviction allegations, defendant filed a motion to strike case enhancement No. a(4), his 1972 juvenile adjudication for second degree murder. Defendant submitted a declaration claiming he was never informed of his constitutional rights including the right to confront witnesses, to a jury trial, court trial or his right against self-incrimination. An affidavit by an investigator set forth her efforts to obtain any official or unofficial records pertaining to defendant's having been informed of his constitutional rights or any waiver of those rights. Various county court and probation offices stated no such records exist for any juvenile case from 1972.
In opposition, the prosecution argued defendant failed to meet his burden of producing evidence that his constitutional rights had been violated. The prosecution noted the juvenile adjudication was 42 years old and, although his plea form had been destroyed, evidence showed the county practice in 1972 was to give the necessary advisement of rights. Defendant had been, as a juvenile, told he did not have the right to a jury trial. The prosecution submitted a certified copy of the plea form defendant's co-defendant used to waive his rights in adult court in 1972. Defendant also waived his extradition rights.
The court denied defendant's motion because he had not presented sufficient evidence that his constitutional rights had been infringed, relying on People v. Cooper (1992) 7 Cal.App.4th 593, 597. The court explained that under Cooper, "[a] bear [sic] declaration of nonwaiver without further elaboration of the facts, and absent an allegation that he did not understandingly and voluntarily plead guilty, is insufficient to establish a prima facie case for purposes of collateral relief."
Defendant requested the motion be denied without prejudice and that he be allowed to supplement his statement. The court noted defendant had several opportunities to address Cooper and mentioned defendant's piecemeal approach of filing multiple declarations. The court took the matter under submission.
Defendant filed a second supplemental declaration again stating he had not been informed of his various constitutional rights and never waived those rights. He recalled being told "I did not have a right to trial" and "[h]ad I been informed of those rights I would have exercised those rights."
The court denied the request to amend his motion with a supplemental declaration: "[A]s I indicated this morning there's been fairly extensive briefing on this case, and the conviction after jury trial occurred some months ago, quite a few months ago. The Cooper case that the Court relied upon and which the Court used as a basis for denying your motion to strike allegations set out in Case Enhancement 'a' 4, the Court read its grounds for the ruling, and this was a case that was set out in the People's brief. It has been out there available for all to see for some period of time. And the Court ruled, and then after the Court ruled, there was a request to amend an affidavit that was filed just this morning, which was a follow-up affidavit, and now you're asking for a second affidavit to try to cure, I guess, the previous two the Court has ruled.
"I think, in fairness, the Court will allow you simply to -- it will not be filed, but it will be received and placed in the file, but the Court believes that you had sufficient time to address this issue, and the Court will maintain that the original ruling should stand under the Cooper decision and not be subject to filing multiple affidavits to try . . . to address the Court's concern as we go. I mean, there was full notice and full opportunity to address this question."
Discussion
Defendant contends the trial court abused its discretion by declining to consider his second supplemental declaration. He argues we should consider his request an interim motion or a motion to reopen; the People argue defendant's request is governed by section 1044. However, both agree we review the trial court's decision for an abuse of discretion.
Under section 1044, the trial court has the duty to "limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved."
In denying defendant's request to file a third declaration, the trial court did not abuse its discretion. The court noted the piecemeal fashion in which defendant submitted his declarations in favor of the motion. The record supports the trial court. Defendant filed his first declaration on September 12, 2014. Approximately a month later, the People opposed the motion, citing Cooper. Defendant filed a supplemental declaration at the hearing on the motion on January 8, 2015. Relying on Cooper, the trial court denied the motion because defendant had not presented sufficient evidence that his constitutional rights had been violated. Defendant then asked to file another declaration. The court took the issue under submission, considering the request. Ultimately, the court denied defendant's request, noting the multiple opportunities defendant had been afforded to present his arguments. We find no abuse of discretion.
V
Prior Prison Term Enhancements
In a court trial, the court found true six prior prison terms alleged pursuant to section 667.5, subdivision (b) based on convictions and terms imposed for the following violations:
(1) Health and Safety Code, section 11350, subdivision (a) on September 5, 2006, possession of control substance;
(2) Section 212.5, subdivision (c) on September 12, 1996, second degree robbery;
(3) Section 484/666 on July 29, 1993, petty theft with prior conviction;
(4) Section 496 on July 29,1991, receiving stolen property;
(5) Health and Safety Code, section 11379 on August 7, 1989, offer to sell controlled substance; and
(6) Section 245, subdivision (b) on November 13, 1985, assault with deadly weapon on a peace officer.
The court imposed one-year enhancements for each prison term.
Thereafter, on January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.), became effective and limited the authority to impose enhancements for prior prison terms to terms imposed for a sexually violent offense as defined in subdivision (b) of section 6600 of the Welfare and Institutions Code.
In supplementary briefing defendant asserts, and the People agree, the new law applies retroactively to defendant and none of the six alleged prior convictions can serve as the basis for a prior prison term enhancement. Accordingly, the judgment must be modified to strike the unauthorized enhancements.
DISPOSITION
The judgment is modified to strike the six 1-year prior prison term enhancements. The superior court is directed to prepare an amended abstract of judgment and forward a certified copy thereof to the California Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
MURRAY, J.