Filed 9/8/20 P. v. Reed CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079549
Plaintiff and Respondent,
(Super. Ct. No. F18907842)
v.
JOHN REED, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P.J., Meehan, J. and Snauffer, J.
Defendant John Reed contends on appeal that the one-year prior prison term
enhancement, imposed based on his prior felony conviction for attempted robbery, should
be stricken pursuant to Penal Code section 667.5, subdivision (b),1 as amended by Senate
Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The People concede the
enhancement should be stricken. We accept the People’s concession and strike the prior
prison term enhancement. In all other respects, we affirm.
PROCEDURAL SUMMARY
On March 8, 2019,2 the Fresno County District Attorney charged defendant with
assault upon a custodial officer (§ 241.1; count 1), attempted battery by gassing
(§§ 243.9, subd. (a), 664; count 2), and attempted battery on a non-confined person
(§§ 243.15, 664; count 3). The information further alleged defendant had suffered
four prior felony “strike” convictions within the meaning of the “Three Strikes” law
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and had served one prior prison term
(§ 667.5, subd. (b)).
On May 20, the trial court dismissed count 3 on the district attorney’s motion.
On May 21, the jury found defendant guilty on counts 1 and 2. On May 22, in a
bifurcated proceeding, the jury found that defendant had suffered the four prior strike
convictions and had served a prior prison term for attempted robbery.
On June 13, the court struck three of the four prior strike conviction allegations.
The court then sentenced defendant to seven years in prison as follows: on count 1, the
upper term of three years, doubled to six years because of the remaining prior strike
conviction, plus a one-year prior prison term enhancement; on count 2, one-half of the
upper term of two years, doubled to four years because of the prior strike conviction,
stayed pursuant to section 654.
1 All further statutory references are to the Penal Code unless otherwise stated.
2 All further dates refer to the year 2019 unless otherwise stated.
2.
On June 27, defendant filed a notice of appeal.
FACTUAL SUMMARY
On November 15, 2018, while in custody in the Fresno County Jail, defendant
threw a cup of urine in the direction of a correctional officer and a medical assistant.
DISCUSSION
Defendant argues his prior prison term enhancement must be stricken based on the
retroactive application of Senate Bill 136. The People agree, as do we.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b)
to limit application of prior prison term enhancements to only prior prison terms that
were served for sexually violent offenses as defined by Welfare and Institutions Code
section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That
amendment applies retroactively to all cases not yet final on Senate Bill 136’s effective
date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342, citing In re Estrada (1965)
63 Cal.2d 740, 742.)
Here, the trial court imposed a one-year section 667.5, subdivision (b) prior prison
term enhancement based on defendant’s conviction for attempted robbery, which is not a
sexually violent offense as defined in Welfare and Institutions Code section 6600,
subdivision (b). On January 1, 2020, defendant’s case was not yet final. Therefore, as
the parties agree, defendant is entitled to the ameliorative benefit of Senate Bill 136’s
amendment to section 667.5, subdivision (b).
The only question on which the parties do not agree is whether we should strike
the prior prison term enhancement and direct the trial court to issue an amended abstract
of judgment or remand the matter to the trial court with the direction to strike the
enhancement and resentence in consideration of the entire sentencing scheme. The
People contend that this matter should be remanded for resentencing. They note that the
court struck three prior strike conviction allegations and argue that “[i]t is speculative
whether the trial court would have reached the same sentencing decision had it known
3.
[defendant] would not be receiving the prior prison term enhancement.” Defendant
responds that no remand is necessary because the trial court imposed the maximum
available sentence on count 1 in light of the single strike conviction that remained after
the trial court struck the other three strike conviction allegations—the court imposed the
upper term of three years, doubled to six years. Defendant further argues that the trial
court could not “lawfully change [his] sentence to arrive at the same seven[-]year
sentence” and cannot sentence him to more than seven years in custody.
Defendant is only partially correct. Defendant is incorrect that the trial court
imposed the maximum available sentence on count 1. The decision of whether to strike a
prior strike conviction allegation is part of the court’s sentencing discretion. (See People
v. Carmony (2004) 33 Cal.4th 367, 374.) By striking three prior strike conviction
allegations, lowering the term (without enhancements) from 25 years to life to six years,
the trial court exercised its discretion to impose a sentence less than the maximum
available sentence.
However, defendant is correct in the more meaningful respect—because the prior
prison term enhancement must be stricken, the trial court on remand could not arrive at a
sentence higher than six years that did not also impermissibly exceed seven years.
Generally, when an action is remanded to a trial court for resentencing, the court is
permitted to impose the same sentence it originally imposed if some other appropriate
method of sentence calculation exists to reach the same result. (See People v. Torres
(2008) 163 Cal.App.4th 1420, 1431–1433.) However, a trial court cannot impose a
higher sentence in that situation.3 (Id. at pp. 1432–1433; see Serrato, supra, 9 Cal.3d at
3 The exception, not relevant here, is when the trial court erred in the first instance
by imposing an unauthorized sentence. (People v. Serrato (1973) 9 Cal.3d 753, 764
(Serrato), overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583,
fn. 1.) In such a case, a more severe sentence could be imposed on resentencing than was
originally imposed. (Ibid.)
4.
p. 764; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310–1312.) That rule exists to
prevent vindictiveness against a defendant who successfully attacks his sentence on
appeal. (People v. Price (1986) 184 Cal.App.3d 1405, 1409; People v. Savala (1983) 147
Cal.App.3d 63, 69–70, overruled on other grounds in People v. Foley (1985) 170
Cal.App.3d 1039, 1044; see People v. Kelly (1999) 72 Cal.App.4th 842, 844–845.)
Here, the trial court on remand would not be permitted to impose a sentence
greater than the original sentence—seven years of imprisonment. Based on the offenses
of conviction and special allegations found true, the maximum sentence that the trial
court could impose without exceeding seven years is six years. Specifically, the base
term for conviction of battery by gassing of a peace officer is punishable as a
misdemeanor or by imprisonment for two, three or four years (§ 243.9, subd. (a)), and the
base term for conviction of assault on a custodial officer is punishable as a misdemeanor
or by imprisonment for 16 months, or two or three years (§§ 241.1, 1170, subd. (h)(1)).
Application of the Three Strikes law based on two prior strike convictions would result in
a term of 25 years to life. If only one prior strike conviction was applied, the available
sentences would be four, six, or eight years on the battery by gassing conviction or three,
four, or six years on the assault on a custodial officer conviction. No other sentencing
enhancements were alleged or proved and therefore none could be applied. And, because
counts 1 and 2 were based on the same conduct, the court was required to stay the
sentence on count 2 pursuant to section 654. Therefore, if we remanded the matter, the
trial court could not impose a sentence in excess of six years that did not also
impermissibly exceed seven years. For that reason, remand to the trial court for
resentencing “ ‘ “would be an idle act and is not required.” ’ ” (People v. McDaniels
(2018) 22 Cal.App.5th 420, 425.) Accordingly, we strike the prior prison term
enhancement and direct the trial court to issue an amended abstract of judgment
reflecting the modified sentence.
5.
DISPOSITION
The prior prison term enhancement (§ 667.5, subd. (b)) is stricken. The trial court
is directed to prepare an amended abstract of judgment removing the prior prison term
enhancement. The trial court shall forward a copy of the amended abstract of judgment
to the appropriate entities. As so modified, the judgment is affirmed.
6.