People v. Wilson CA4/2

Opinion

Filed 12/17/20 P. v. Wilson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073753

v. (Super.Ct.No. RIF1604888)

CURTIS ANDRE WILSON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.

Affirmed as modified with directions.

Erica Gambale, 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, Michael Pulos and Arlene A.

Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

1 On remand for resentencing from this court, the trial court declined to strike a

prior serious felony conviction enhancement. (Pen. Code, § 667, subd. (a).)1 In this

second appeal, defendant and appellant Curtis Andre Wilson contends that all four former

section 667.5, subdivision (b) (Stats. 2019, ch. 590, § 1) enhancements must be stricken

pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.). The People concede. We agree

and affirm as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND 2

A jury found defendant guilty of one count of assault with a deadly weapon.

(§ 245, subd. (a), count 1.) Thereafter, defendant admitted he had suffered five prior

prison terms (former § 667.5, subd. (b)), one prior strike conviction (§§ 667, subds. (c),

(e)(1), 1170.12, subd. (c)(1)), and one prior serious felony conviction (§ 667, subd. (a)).

The trial court sentenced him to a total term of 17 years in state prison, which consisted

of the upper term of four years on the count 1 offense, doubled pursuant to the prior strike

conviction; a consecutive five years for the prior serious felony conviction enhancement

(§ 667, subd. (a)); and one year on each of the four prior prison terms enhancements

(former § 667.5, subd. (b)).3 (Wilson I, supra, E070348.)

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 On February 13, 2020, we granted defendant’s request for this court to take judicial notice of the record in People v. Wilson (Apr. 24, 2019, E070348) (nonpub. opn.) (Wilson I), defendant’s appeal of the judgment. We derive much of our procedural history from the opinion in that case. Because the facts of the case are irrelevant to the issue on appeal, we have omitted a statement of facts.

2 In his first appeal, defendant contended the matter should be remanded for

resentencing pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) for the trial court

to exercise its discretion as to whether to strike the prior serious felony conviction

enhancement. In an unpublished opinion filed April 24, 2019, we agreed and remanded

the matter for the purpose of allowing the trial court to exercise its newly found

discretion. (Wilson I, supra, E070348.) On August 23, 2019, the trial court declined to

strike the prior serious felony conviction enhancement.

In the current appeal, defendant contends that pursuant to Senate Bill No. 136, all

four of his prior prison term enhancements must be stricken. The People concede the

issue. We agree.

II. DISCUSSION

“Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to

impose a one-year sentence enhancement for each true finding on an allegation the

defendant had served a separate prior prison term and had not remained free of

custody for at least five years. [Citation.] Courts nevertheless had discretion to strike

that enhancement pursuant to section 1385, subdivision (a). [Citation.] Effective as of

January 1, 2020, Senate Bill No. 136 . . . amend[ed] section 667.5, subdivision (b) to

limit its prior prison term enhancement to only prior prison terms for sexually violent

offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b).”

(People v. Jennings (2019) 42 Cal.App.5th 664, 681.)

3 The trial court struck the fifth prior prison term, since it was based on the same offense as the prior serious felony enhancement. (Wilson I, supra, E070348.) 3 “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.] Therefore, we

conclude, and the parties agree, that under the Estrada[4] rule, 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.” (People v. Jennings, supra, 42 Cal.App.5th at

p. 682; accord People v. Herrera (2020) 52 Cal.App.5th 982, 995-996, review granted

Oct. 14, 2020, S264339.)

“‘In criminal actions, the terms “judgment” and “‘sentence’” are generally

considered “synonymous” [citation] . . . .’ [Citation.] There can be ‘no “judgment of

conviction” without a sentence.’ [Citation.] Thus, for purposes of Estrada[5]

retroactivity, the focus is not on when a conviction becomes final but rather when the

sentence imposed on that conviction becomes final. [Citation.] A sentence becomes

final ‘when all available means to avoid its effect have been exhausted.’” (People v.

Martinez (2020) 54 Cal.App.5th 885, 891, review granted Nov. 10, 2020, S264848

[directing the trial court to strike two one-year sentence enhancements imposed pursuant

to former § 667.5, subd. (b)].)

4 In re Estrada (1965) 63 Cal.2d 740.

5 See footnote 4, ante. 4 Here, none of the criminal convictions leading to defendant’s prison sentences,

which were alleged as prior prison term enhancements, were based on sexually violent

offenses. Moreover, since defendant appealed from an order on resentencing, his

judgment was not final. Thus, we shall modify the judgment to strike all four prior prison

term enhancements. (People v. Gastelum (2020) 45 Cal.App.5th 757, 773 [“[W]here, as

here, an enhancement is erroneously imposed and the trial court has already imposed the

maximum possible sentence, a remand for resentencing is unnecessary.”].)

III. DISPOSITION

The judgment is modified to strike the four, one-year prior prison term

enhancements imposed under former section 667.5, subdivision (b). As so modified, the

judgment is affirmed. The trial court is directed to prepare an amended abstract of

judgment and forward it to the Department of Corrections and Rehabilitation. (People v.

Gastelum, supra, 45 Cal.App.5th at p. 773.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

SLOUGH J.

MENETREZ J.